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decided: October 23, 1985.


Appeal from the Order of the Department of Public Welfare in case of Appeal of Donald B. Faix, Re: Thomas Faix, dated April 3, 1984.


Mary Ann Rossi, with her, Robert J. Shenkin, MacElree, Harvey, Gallagher, O'Donnell & Featherman, Ltd., for petitioner.

Jules S. Henshell, with him, John Kane and Howard Ulan, Assistant Counsel, for respondent.

Judges MacPhail and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 92 Pa. Commw. Page 385]

Donald Faix, Petitioner, appeals from the order of the Department of Public Welfare (DPW), Office of Hearings and Appeals, which rejected the recommendation of the Hearing Officer that his liability for his son's care be assessed at $262.00 a month and denied his appeal. DPW determined that Petitioner's liability had been correctly computed to be $957.00 a month, as mandated by the regulations found at 55 Pa. Code § 4305, promulgated under the Mental Health and Mental Retardation Act of 1966 (Act).*fn1

Petitioner had been paying a monthly assessment of $252.00 for the care of his mentally retarded minor son, Thomas, who had been placed in a community living arrangement (CLA). The actual cost of Thomas' placement has been estimated to be $24,000 a year. Petitioner's annual income in 1983 was $68,722.

Petitioner contends that the assessment constitutes 61% of his disposable income. He has two other children aged sixteen and eighteen whose educational expenses he will be unable to provide if this assessment is upheld. He further claims that if this assessment is upheld, his son will be removed from the CLA and will have to return home, even though the child has progressed there, because Petitioner's "mandatory" expenses will exceed his personal income.

When the Petitioner appealed this assessment, the Hearing Officer recommended that his appeal be sustained due to a showing of hardship and that his liability

[ 92 Pa. Commw. Page 386]

    be assessed at $262.00 a month.*fn2 DPW rejected the Recommendation and denied Petitioner's appeal. DPW subsequently denied a request for reconsideration.

Petitioner appeals this decision because he claims that he has shown substantial hardship. Alternatively, he asserts that the regulations are invalid because they are inconsistent with the legislative intent of the Act, and because they place an undue and unconstitutional burden upon middle income and large families, and are per se irrational and invalid.

Respondent, DPW, argues that Petitioner has not met his burden of showing that the assessed liability will harm his son by causing his removal from the CLA or causing a "substantial hardship" to Petitioner himself; that the regulations are consistent with legislative intent; and that the issue of whether an equal protection violation has occurred was not properly raised below.

The regulations propounded pursuant to the Act determine parental liability for the cost of care of minor children by utilizing the formula delineated in § 4305.6 of the regulations to determine discretionary income. Put simply, gross annual income includes all earned income, interest income, dividends, benefits including unemployment compensation, Social Security, Public Assistance, capital gains, alimony or support. Taxes, child care costs (using Internal Revenue Service limits), medical expenses and health insurance premiums are deducted. A living allowance of $6,000 plus $1,000 for each dependent is also deducted. What remains is discretionary income, here computed to be $18,686. Neither party to this action contends that this calculation is erroneous.

[ 92 Pa. Commw. Page 387]

Appendix A of the regulations mandate that for any discretionary income over $17,000, 1/20th of discretionary income plus $23 would be the amount of monthly liability. Neither party has disputed the resultant computation of $957.00.

Petitioner can request abatement or modification but must show either clinical reasons or "substantial hardship". The requirements enumerated in the regulations for a showing of clinical reasons are as follows:

(i) Abatement for clinical reasons will be granted only if:

(A) the imposition of the maximum liability would be likely to negate the effectiveness of treatment, or prohibit the ...

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