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decided: December 7, 1988.


Appeals from the Order of the Department of Public Welfare, in case of Appeal of: Colonial Manor Personal Care Boarding Home, Docket No. 34-86-013.


Carl P. Izzo, Jr., with him, Robert L. Webster, Webster & Webster, for petitioner.

Howard Ulan, Assistant Counsel, for respondent.

Judges Doyle, Colins and Palladino, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 121 Pa. Commw. Page 508]

Before us are consolidated appeals both taken by Colonial Manor Personal Care Boarding Home (CM) from orders of the Department of Public Welfare (Department). The first order entered by the Office of Hearings and Appeals (OHA) adopted a hearing examiner's recommendation and dismissed CM's appeal of the revocation of its personal care home license.*fn1 The second order was entered by the Secretary of the Department and denied CM's request for reconsideration.*fn2

The hearing examiner found that Frank A. Bock, Sr. owned and was the licensee of both the Brownsville Golden Age Nursing Home (BGA) and CM and that the two establishments were located across the street from each other. In the last quarter of 1985 thirty-six BGA patients were receiving intermediate level nursing care reimbursement under the Medical Assistance Program. The patients at BGA averaged eighty years of age and had resided at BGA for an average of three years. The need for intermediate nursing care had been certified regularly by BGA's staff throughout each patient's stay.

[ 121 Pa. Commw. Page 509]

On October 1, 1985 medical assistance reimbursement was terminated at BGA; however, BGA was not made aware of this termination until December 1985. Bock sued in federal court to have his medical reimbursement reinstated but on February 7, 1986 the federal district court denied him preliminary relief. Because of the reimbursement suspension Bock was required to expend approximately fifty-five thousand dollars per month from his own funds to care for the patients. Thus, in February 1986, he decided to discharge all of his medical patients from BGA. On February 24, 1986 the medical director of BGA, Dr. Naresh Bhatt, after conducting a medical assessment of each patient, signed physician's certificates for twenty-four of the thirty-six BGA patients indicating that they did not require intermediate nursing care but could live instead in a personal care boarding home. Beginning the following day twenty-four of the patients were transferred to CM.*fn3 The families of the patients were contacted prior to the transfer and given an opportunity to arrange for placement of their choice. Those patients admitted to CM and/or their families consented to be moved. The hearing examiner also specifically found:

11. Of the 24 transferred patients, . . .:

(a) 13 required wheelchairs.

(b) 6 could not move the chairs themselves.

(c) 11 required physical restraint.

(d) 14 were confused.

(e) 12 required total assistance in bathing, dressing, and getting out of bed.

(f) 12 were incontinent.

(g) 9 needed therapeutic diet.

(h) 1 was on renal dialysis twice a week.

(i) 3 required the availability of oxygen.

[ 121 Pa. Commw. Page 510]

(j) 4 patients with behavior problems required the availability of injectable medication.

(k) 5 patients needed daily blood pressure and/or pulse checks.

(l) 3 patients needed to have hydration levels monitored.

Personal care homes ordinarily have no nursing staff at all. See 55 Pa. Code § 2620.32 (providing for provider and staff qualifications for personal care homes and omitting any mention of the requirement of nursing staff).

The hearing examiner found that immediately after the transfer to CM a number of the patients were without identification bands, that many were confused and could not identify themselves, that the medical records had not been transferred along with the patients, and that the circumstances constituted an emergency situation. He further found that in early March a team headed by Dr. Hertzler (a physician consultant for the Department) and including three nurses, determined that at least seventeen of the twenty-three patients required a level of care higher than personal care. Further, as of March 19, 1986, two nurses who were licensed nursing home administrators observed that ten patients who required intermediate nursing care were still at CM. Ultimately, these patients were transferred from CM pursuant to a relocation plan dated March 10, 1986. The Department determined that the conduct described above constituted sufficient grounds for revocation of CM's personal care home license and notified CM of this. CM appealed and the hearing examiner, based upon the above-stated findings, recommended that CM's appeal be denied. OHA adopted this recommendation in an order dated and mailed January 15, 1988. CM timely appealed to this Court at 402 C.D. 1988 and also appealed to the Secretary of the Department.

[ 121 Pa. Commw. Page 511]

The Secretary denied the appeal on March 4, 1988 and CM timely appealed to this Court from that order at 778 C.D. 1988.

Before considering the initial appeal at 402 C.D. 1988, we shall examine the appeal at 778 C.D. 1988. Unfortunately, we must conclude that there was no valid order which could be appealed. OHA entered its order on January 15, 1988. CM then petitioned the Secretary for reconsideration. Pursuant to Section 241(a) of the General Rules of Administrative Practice and Procedure, 1 Pa. C.S. § 35.241(a), the party seeking reconsideration has fifteen days from the date of the order appealed from in which to file its petition unless a statute provides otherwise. No statute alters this regulation in this case. And, the Secretary has thirty days from the date on which the petition is filed to respond unless a lesser time is provided for by law. 1 Pa. C.S. § 35.241(d). Pa. R.A.P. 1701(b)(3) makes just such a provision when it dictates ...

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