The opinion of the court was delivered by: P. Kevin Brobson, Judge
AND NOW, this 25th day of May, 2011, upon consideration of the Motion to Report Unreported Opinion, the Motion is granted. It is hereby ordered that the opinion filed March 4, 2011, shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David D. Chambers, (mentally retarded : individual) by Gary L. Chambers, : brother and legal guardian, : Petitioner : v. Department of Public Welfare, : Respondent :
No. 493 C.D. 2010 : Submitted: October 22, 2010
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge
Petitioner David Chambers (Chambers),*fn1 by his legal guardian Gary Chambers (Guardian), petitions for review of an order of the Secretary of Public Welfare (DPW) that upheld a decision of DPW's Bureau of Hearings and Appeals (BHA). BHA had sustained the Centre County Mental Health/Mental Retardation Department's termination of Chambers' participation in a program known as Consolidated Waiver.*fn2 We reverse.
Before addressing the facts in this case, a brief discussion of the Consolidated Waiver program is necessary. As set forth in the ALJ's decision, Section 1915(c) of the Social Security Act, 42 U.S.C. § 1396n(c), permits states to develop programs to enable mentally retarded individuals, who otherwise would be eligible for and placed in an intermediate care facility, to receive services in their home and community. The United States Department of Health and Human Services, Centers for Medicare and Medicaid Services oversees states' implementation of this program.
In Pennsylvania, DPW administers that program through what DPW refers to as the Consolidated Waiver program. The Pennsylvania Office of Developmental Programs (ODP) within DPW administers the Consolidated
Waiver for DPW. In performing this function, ODP enters into agreements with "Administrative Entities." An agreement between ODP and an Administrative Entity encompasses a number of responsibilities, including the development of an "individual support plan" (ISP) for individuals who are approved to participate in a Consolidated Waiver program. The Administrative Entity must monitor the performance of the ISP in order to ensure that the covered individual is healthy and safe. The particular operating agreement determines the nature and regularity of the monitoring that the Administrative Entity must perform.
Personnel of the Administrative Entity, known as "support coordinators" (SCs), undertake the duty to monitor a covered individual's health and safety in accordance with the agreement. For participants in the Consolidated Waiver who receive monthly service, the designated SC must engage in a minimum of three face-to-face monitoring visits with the participant every three calendar months. The minimum three visits must include an in-home visit, a visit to the location where the participant obtains "day service," and a visit to any place to which the participant agrees. ODP has designated Centre County Mental Health/Mental Retardation Services (County Services) as the Administrative Entity for the Consolidated Waiver program in Centre County. In this case, the Guardian provides care for David and is reimbursed for his services under the Consolidated Waiver program.
County Services sent a notice to the Guardian on July 9, 2009,
indicating that it was terminating Chambers' participation in the program based upon its belief that the Guardian had failed to cooperate with regard to scheduling and completing required "monitoring." On July 22, 2009, the Guardian, on behalf of Chambers, sought to challenge the termination by filing a request for a hearing. The ALJ conducted a telephone hearing on October 28, 2009, during which County Services presented the testimony of Deborah Tate, an Assistant Administrator for County Services' Mental Retardation Services, and Carol Waltz, the Administrator for County Services. County Services did not offer the direct ...