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Luke Bussoletti v. Department of Public Welfare

December 19, 2012


The opinion of the court was delivered by: Robert Simpson, Judge

Submitted: October 26, 2012



Luke Bussoletti (Recipient), by and through his parents and legal guardians, petitions for review of a final order of the Secretary of the Department of Public Welfare (DPW) upholding a decision of DPW's Bureau of Hearings and Appeals (BHA). BHA affirmed an Administrative Law Judge's (ALJ) order, which denied in part and sustained in part Recipient's appeal of a determination of DPW, Office of Developmental Programs, Greene County Human Services (GCHS), and Pathways of Southwestern Pennsylvania, Inc. (Pathways) regarding Pathways' discontinuation of door-to-door transportation services. The ALJ denied Recipient's appeal upon determining Pathways acted in accordance with federal and state regulations, but sustained his appeal to the extent Pathways failed to continue door-to-door transportation services during the pendency of the appeal.

Recipient argues Pathways' decision to modify transportation services violates the regulations. Recipient also argues DPW failed to follow all relevant procedures during the appeal process, violated Recipient's due process and equal protection rights, and abandoned the needs of Recipient by supporting the termination of transportation service. Discerning no error, we affirm.

I. Background

The ALJ made the following relevant findings of fact. Recipient is a 29-year-old male who is diagnosed with mental retardation, chronic bladder infection, and diabetes. Recipient receives medical assistance and home and community-based services under Pennsylvania's Consolidated Waiver*fn1 (Waiver) and has done so since April 2005. Recipient resides at home with his parents in Greene County. Recipient's home is not located on a paved road.

GCHS is responsible for authorizing all services funded under the Waiver for medical assistance recipients residing in Greene County. Recipient's individual support plan (ISP) includes the Waiver services of community habilitation and transportation (zone 3). Pathways provided Recipient with community habilitation at its adult training facility and door-to-door transportation services between Recipient's home and Pathways' facility. Recipient attended a day program at Pathways' adult training facility five days per week.

At a meeting on March 8, 2011, Pathways verbally informed Recipient's parents and GCHS it was discontinuing Recipient's door-to-door transportation services effective March 21, 2011. Pathways offered to transport Recipient if he met Pathways at a designated location on the paved roadway, approximately five miles from his home. On March 11, 2011, GCHS sent a written notice to Recipient informing him of Pathways' decision and his right to appeal. Recipient timely appealed. Despite the pendency of Recipient's appeal, Pathways discontinued Recipient's door-to-door transportation services as scheduled, citing financial reasons.

Before the ALJ, GCHS's Assistant Director testified Recipient's home is located on a gravel road, three miles from the paved road. Pathways experienced difficulty picking up Recipient during inclement weather. Pathways indicated the commute caused wear and tear on its vehicle(s), and it was too costly to continue door-to-door transportation services. Pathways is willing to transport Recipient provided he meets the Pathways vehicle somewhere on the main road or other paved roadway. The Assistant Director stated Recipient can choose another provider for his Waiver services, such as Green Arc. The Assistant Director also stated Recipient's parents can drive Recipient to the adult training facility, for which they would receive reimbursement of $0.51 per mile.

Recipient's father testified at least $22,000 is budgeted in Recipient's ISP for transportation services. Yet, Pathways complains this amount is insufficient. Recipient's father stated Recipient previously met the Pathways vehicle at a few different locations during inclement weather or when Pathways did not have an appropriate vehicle to come directly to the house. Recipient's father stated Recipient had never met the vehicle at the proposed meeting place. He does not agree to this meeting place because of the distance from their home and unsafe location to make the transfer. The father stated Green Arc is not their provider of choice because it is located further from their home and does not have a permanent facility at this time. The father asserted Pathways' decision is imposing part of the transportation cost on Recipient's family in violation of the regulations and Waiver.

Citing a federal regulation, 42 C.F.R §431.51, and the Waiver, the ALJ determined Recipient can select any "willing and qualified provider" to furnish Waiver services included in his ISP. ALJ's Op., 6/13/11, at 5. The ALJ determined Pathways is no longer willing to provide the door-to-door transportation service.

Ultimately, the ALJ determined Pathways acted in accordance with regulations when it proposed to modify Recipient's transportation service and discontinue the door-to-door transportation service. However, the ALJ determined Pathways erred by failing to continue door-to-door transportation during the pendency of the appeal. The ALJ issued an order denying in part and sustaining in part Recipient's appeal. BHA issued a final administrative action order affirming

the ALJ's decision. Recipient filed a petition for reconsideration with the Secretary of DPW, which the Secretary granted. Ultimately, the Secretary issued an order upholding BHA's order. ...

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