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June 4, 1997


Appealed From No. 090211705-001. State Agency Department of Public Welfare.

Before: Honorable James Gardner Colins, President Judge, Honorable James R. Kelley, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY President Judge Colins.

The opinion of the court was delivered by: Colins


FILED: June 4, 1997

Marion F. Goodman (Petitioner) petitions for review of an order of the Secretary of the Pennsylvania Department of Public Welfare (Department) that affirmed a decision of the Department's Office of Hearings and Appeals (OHA) that, in turn, affirmed a welfare hearing officer's determination that the Bucks County Assistance Office (BCAO) and the Bucks County Area Agency of Aging (AAA) properly denied medical assistance/nursing home care benefits (MA/NHC) to Petitioner. We vacate and remand.

Petitioner, who is currently eighty-four years old, became a resident of Leader Nursing Home in Yardley, Pennsylvania (Leader), after an inpatient hospital stay and a short stay in another nursing home. After being a private-pay resident at Leader for two and one-half years, Petitioner applied for MA/NHC upon the exhaustion of her funds. In support of her application, Petitioner submitted a medical evaluation form known as an MA51 *fn1, completed by her physician, Louis J. Gringeri, D.O., on December 1, 1994. In the MA51, Dr. Gringeri diagnosed Petitioner as having chronic obstructive pulmonary disease, congestive heart failure, hypertension, coronary artery disease, and gait dysfunction. He recommended that Petitioner be provided with an "intermediate" level of care, which is the level of care Petitioner has received while at Leader. In a second MA51, completed March 13, 1995, Dr. Gringeri repeated his recommendation that Petitioner continue with intermediate care at Leader and added that Petitioner suffers from anxiety. *fn2

Personnel from AAA, including a care manager and a registered nurse, met with Petitioner on several occasions, as well as with her son, and reviewed Petitioner's nursing home records and the MA51s. The AAA's evaluation concluded that Petitioner did not require intermediate care, which entailed the presence of 24-hour nursing staff, but that she could function just as well in a personal care home where Petitioner would have supervision but not a 24-hour nursing presence. *fn3 This evaluation, together with the medical record, was reviewed at the request of AAA by Scott S. Levy, M.D., who concluded that Petitioner would do well in a personal care home and that there was no evidence that Petitioner had need of skilled nursing care. Because AAA determined that Petitioner did not require intermediate care, Petitioner's application for MA/NHC was denied by BCAO. *fn4 Petitioner appealed this determination.

At a telephone hearing before a welfare hearing officer, the Department provided the testimony of the care manager and registered nurse who had met with Petitioner and reviewed her records, as well as the testimony of a care manager supervisor and the director of the pre-admission unit of the AAA and the casework supervisor of BCAO. Petitioner testified on her own behalf and also presented the testimony of her adult son. Although personnel from Leader appeared with Petitioner at the hearing, for reasons not explained they did not testify. Admitted into the record were, among other things, the two MA51s, the AAA evaluations, letters from Dr. Gringeri, a letter from Dr. Levy, and Petitioner's records from Leader. The documents submitted to the hearing officer by AAA and BCAO were yellow highlighted as to those matters generally relied upon by AAA and BCAO, with the notation that the highlighting was done for the AAA's reevaluation. (See Exhibit C-5.)

The parties painted two very different portraits of Petitioner at the hearing. The welfare hearing officer summarized the AAA's testimony as follows:

The AAA testified that the [Petitioner] performs all Activities of Daily Living (ADL's) independently and safely without assistance although she needs some assistance with dressing/changing of clothes. She is ambulatory and navigates to the rest room with her walker; sometimes without her walker. She is bowel and bladder continent, according to the AAA, who further testified that she is alert/lucid, with an occasional memory lapse, and has experienced no exasperation [sic] of her cardiac or respiratory conditions.

(Adjudication of welfare hearing officer, p. 3.)

Petitioner, on the other hand, emphasized the seriousness of Petitioner's underlying pathologies and presented a woman who demonstrated extensive confusion and memory loss, who is not oriented as to place or time, who did not know the address or name of the facility where she is living, who expressed a desire to return to the home that had been sold many months before, who did not know the purpose of the hearing she was attending, who forgot that her son and her attorney had visited her the previous day, and who could not walk far without becoming weak and trembling. *fn5 (See, e.g., N.T., pp. 79-85, 87-88, 94-95.)

The discrepancy of views is highlighted by the very different assessments and recommendations made by Drs. Levy and Gringeri. Dr. Levy wrote: *fn6

Clearly [Petitioner] is a lady with multi-organ system involvement, including congestive heart failure, coronary artery disease, and COPD. It appears she has been quite stable for some time and in fact has not required hospitalization in more than two years. It appears [Petitioner] has received quite excellent care at the Leader Nursing Facility, however, it is evident [Petitioner] would do ...

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