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Bouman v. Department of Public Welfare

Commonwealth Court of Pennsylvania

January 9, 2015

Carmel Bouman, Petitioner
v.
Department of Public Welfare, Respondent

Submitted November 14, 2014

Anthony R. Arcaro, Wilmington, DE, for Petitioner.

Daniel Fellin, Deputy Chief Counsel, Harrisburg, for respondent.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Page 945

FRIEDMAN, SENIOR JUDGE

Carmel Bouman petitions for review of the June 30, 2014, final administrative order of the Department of Public Welfare (DPW), Bureau of Hearings and Appeals (BHA), which affirmed the decision of an administrative law judge (ALJ) to dismiss Bouman's appeal for lack of jurisdiction. We affirm.

Ninety-year-old Bouman was a resident at Welsh Mountain Home (WMH), a licensed personal care home.[1] On November 22, 2013, WMH issued a 30-day discharge notice to Bouman pursuant to 55 Pa. Code § 2600.228(h)(3),[2] stating that due to her " continued exit[-]seeking from the building, [WMH] is no longer able to provide the environment to assure or maintain [her] safety." (WMH Discharge Notice, 11/22/13.) WMH later extended the discharge date to January 5, 2014.

On January 14, 2014, Bouman filed a complaint/notice of appeal with DPW's Bureau of Human Services Licensing (Licensing Bureau). Bouman challenged her discharge from WMH and alleged that WMH committed numerous regulatory violations. The Licensing Bureau investigated Bouman's claims and found no regulatory violations.

By letter dated January 24, 2014, WMH notified Bouman that she was being discharged as of that date. On April 2, 2014, Bouman's counsel sent a letter to the Licensing Bureau inquiring about the status of the appeal. On April 15, 2014, the Licensing Bureau forwarded Bouman's appeal to the BHA.

On June 19, 2014, an ALJ held a pre-hearing telephone conference to determine whether the BHA had jurisdiction over Bouman's appeal from her discharge notice. On June 23, 2014, the ALJ concluded that the BHA does not have jurisdiction over a resident's discharge from a personal care home and dismissed Bouman's appeal. Specifically, the ALJ found that under 55 Pa. Code § 1181, Appendix N, the BHA has jurisdiction over a resident's discharge from a long-term-care nursing facility.[3] Because WMH is a personal care home

Page 946

and not a long-term nursing facility, the regulation does not apply to Bouman's appeal. The ALJ also rejected Bouman's claim that the BHA has jurisdiction because WMH is a state actor.[4] Although WMH is licensed by DPW, WMH acted as a private entity, not as DPW's agent, in ...


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