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decided: December 1, 1989.




Stephen A. Feldman, Dershaw & Feldman, Philadelphia, for petitioner.

Mary Frances Grabowski, Asst. Counsel, Harrisburg, for respondent.

Colins and Smith, JJ., and Barbieri, Senior Judge. Colins, J., dissents.

Author: Barbieri

[ 130 Pa. Commw. Page 53]

Raymond Buck (Petitioner) seeks review of the final order of the Secretary of the Department of Public Welfare (DPW) which granted in part and denied in part Petitioner's request for reconsideration of the amended order issued by the Acting Director of DPW's Office of Hearings and Appeals. The Secretary reversed the Acting Director's disallowance of a spousal deduction, but affirmed the Acting Director's determination that Petitioner's entire pension was available to pay for his nursing home care.

Issues presented for review are whether DPW erroneously determined ownership of Petitioner's pension; whether DPW violated Title XIX of the Social Security Act (Title XIX), 42 U.S.C. §§ 1396-1396p; and whether DPW violated federal and state constitutional rights to privacy, due process and equal protection. The final order of the Secretary of DPW is affirmed.

[ 130 Pa. Commw. Page 54]

Petitioner entered a nursing home in 1985 and, on April 22, 1987, his wife filed an application for medical assistance nursing home care benefits with the Philadelphia County Assistance Office (CAO) on his behalf. The CAO determined that Petitioner was eligible for medically needy medical assistance nursing home care benefits, effective May 1, 1987. After its initial authorization of assistance, however, the CAO discovered that it had miscalculated the amount of Petitioner's income available to meet the cost of his nursing home care. The CAO notified Petitioner of its intention to increase his patient pay amount*fn1 since it had considered only one-half, rather than all, of Petitioner's pension. In response to the CAO's proposed action, Petitioner initiated and exhausted administrative appeal proceedings and now seeks review by this Court.*fn2

We initially note that the medical assistance program is a federal-state program established by Title XIX. States electing to participate in this program receive federal financial assistance for certain medical services rendered to needy individuals, provided that the states comply with Title XIX and all implementing federal regulations. See 42 U.S.C. § 1396b(a); Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). A participating state that elects to provide medical assistance to the medically needy is required to formulate reasonable standards for determining eligibility for, and the extent of, medical assistance. These standards must take into account only the income and resources available to the medically needy medical assistance applicant or recipient and provide for reasonable evaluation of any such income and resources. See 42 U.S.C. § 1396a(a)(17).

[ 130 Pa. Commw. Page 55]

Federal regulations promulgated to implement Title XIX require medically needy applicants and recipients to take all necessary steps to acquire, inter alia, any pension or other retirement benefits to which they are entitled unless they can show good cause for not doing so. See 42 C.F.R. § 435.603. Once eligibility for medical assistance is determined, federal regulations direct that the state must reduce its payment to the medical institution or intermediate care facility rendering services to the medically needy by the amount that remains from the medically needy individual's total available income after making applicable deductions, including a deduction for the maintenance needs of the medically needy individual's noninstitutionalized spouse. See 42 C.F.R. § 435.832.

Section 5 of the Public Welfare Code, 62 P.S. § 442.1(2),*fn3 authorizes DPW to establish standards of financial eligibility for the medically needy. Eligibility standards for the medically needy who are in skilled and intermediate nursing care facilities are set forth at 55 Pa.Code § 177.83(b) which provides in pertinent part that:

(b) Exemption of resources will comply with the following:

(2) For the purpose of determining eligibility for persons receiving institutional care all resources available to meet the ...

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