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05/19/97 CHARTIERS COMMUNITY MENTAL HEALTH AND

May 19, 1997

CHARTIERS COMMUNITY MENTAL HEALTH AND RETARDATION CENTER, INC., PETITIONER
v.
DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appealed From No. 02F0027. State Agency Department of Public Welfare.

Before: Honorable Jim Flaherty, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: May 19, 1997

Chartiers Community Mental Health and Retardation Center, Inc. (Chartiers) appeals from the December 26, 1995, order of the Office of Hearings and Appeals for the Department of Public Welfare (Department) which dismissed its appeal for lack of jurisdiction. We affirm.

The present matter arises out of a dispute between Chartiers and the Allegheny County Mental Health/Mental Retardation Drug and Alcohol Program (County) surrounding the continued suitability of a patient for partial hospitalization services. This patient's care was funded, under a contract between Chartiers and the County, from monies granted by the Department pursuant to the Mental Health and Mental Retardation Act of 1966 (Act of 1966). *fn1 Under the Act of 1966, the Department makes grants to county mental health and mental retardation programs which, in turn, contract with private providers for various services enumerated in the Act of 1966, including partial hospitalization services.

Chartiers, upon the advice of one of its patient's treatment team members and treating psychiatrists, determined that further treatment of the patient in Chartiers' partial hospitalization program was no longer clinically appropriate. The patient filed a grievance with the Allegheny County Mental Health/Mental Retardation Board (Board) against Chartiers. After the Board's hearing on the matter, the County's Director, Charles Peters, by letter dated June 22, 1995, advised Chartiers that the Board issued a decision requiring Chartiers to continue to provide partial hospitalization services to the patient. The Board also decided that Chartiers could not require the patient to receive intensive case management services as a condition of reinstatement. Mr. Peters advised Chartiers that it must reinstate the patient unless it chose "to appeal the decision further through litigation or the Office of Mental Health." (R.R. at 1a.) By letter dated July 12, 1995, Chartiers timely appealed the Board's decision to the Department's Office of Hearings and Appeals.

The hearing officer scheduled a telephone hearing for November 13, 1995. By letter to the hearing officer with an enclosed motion, both dated November 6, 1995, counsel for the County moved to dismiss Chartiers' appeal on the basis that the Department's Office of Hearings and Appeals had no jurisdiction to entertain the appeal. By rule to show cause dated November 30, 1995, the hearing officer directed Chartiers to show cause why its appeal should not be dismissed for lack of jurisdiction. Chartiers' response was due within 14 days of the date of the rule, that is, on or before December 14, 1995. Chartiers failed to respond by this date. *fn2

On December 15, 1995, the hearing officer, specifically finding that Chartiers was a "local agency" and, as such, it was required to file its appeal in the court of common pleas rather than in the Department's Office of Hearings and Appeals, dismissed Chartiers' appeal for lack of jurisdiction. *fn3 The Director of the Department's Office of Hearings and Appeals issued a final order affirming the hearing officer's determination. On January 4, 1996, Chartiers filed a reconsideration request with the Secretary of the Department (Secretary), requesting the Secretary to direct the hearing officer to consider the argument set forth in its answer and motion.

On January 23, 1996, Chartiers appealed to this court. *fn4 County filed for, and was granted, intervenor status for purposes of the appeal. Chartiers raises two issues on appeal. First, whether the Department's Office of Hearings and Appeals has jurisdiction over Chartiers' appeal from the decision of the Board. Second, if jurisdiction exists, whether the hearing officer for the Department abused his discretion in dismissing Chartiers' appeal as untimely. *fn5

We begin our analysis by noting that subject-matter jurisdiction may be raised at any time, Blackwell v. State Ethics Commission, 523 Pa. 347, 567 A.2d 630 (1989), and that this court "may interfere in an agency decision only where there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency's duties and functions." Starr v. Department of Environmental Resources, 147 Pa. Commw. 196, 607 A.2d 321, 323 (Pa. Commw. 1992).

Chartiers argues that because this is a dispute between a county administrator and a facility as to the necessity of medical treatment, the appeal is correctly heard by the Department under Section 206(c) of the Mental Health Procedures Act (Procedures Act). *fn6 Moreover, Chartiers argues that the Department has jurisdiction because the County is acting as a Department agent in carrying out duties mandated under the Act of 1966 and the Procedures Act. We must first address Chartiers' agency argument. The Department and the County, both citing Commonwealth v. Children's Rehabilitation Center, Inc., 95 Pa. Commw. 578, 505 A.2d 1043 (Pa. Commw. 1986), petition for allowance of appeal denied, 514 Pa. 632, 522 A.2d 560 (1987), aver that the County is not acting as an agent to the Department merely because the Department provides certain funding. In Children's Rehabilitation, this court held that in contracting with private providers for interim care services the county program agencies do not act as agents for the Commonwealth. The Department argues that there is no statutory basis for distinguishing between the interim care in Children's Rehabilitation and the partial hospitalization here. We agree. In the present matter, although the County receives money from the Department for its programs, the County is neither acting as the Department's agent when it determines how to spend the grant money nor when it contracts with the private agencies for partial hospitalization services. As such, we turn to the issue of jurisdiction.

County argues that Section 206(c) of the Procedures Act is inapplicable here because the Board, not the county administrator, issued the decision. Chartiers argues, however, that because it was the county administrator, Mr. Peters, and not the Board who ordered it to comply with the Board's decision, the Department has jurisdiction under Section 206(c) of the Procedures Act.

Section 206(c) of the Procedures Act deals with voluntary inpatient treatment. Specifically, ...


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