Bussoletti v. Dep't of Human Servs.

241 A.3d 687 (Table)

Luke BUSSOLETTI, Petitioner

v.DEPARTMENT OF HUMAN SERVICES, Respondent

No. 1230 C.D. 2019

Commonwealth Court of Pennsylvania.

Submitted: March 6, 2020

Filed: November 5, 2020

Reconsideration Denied: December 18, 2020

MEMORANDUM OPINION BY JUDGE BROBSON

Luke Bussoletti (Recipient), by and through his parents and legal guardians, petitions for review of a final administrative action order of the Department of Human Services (DHS), Bureau of Hearings and Appeals (BHA), dated July 30, 2019, issued by its Chief Administrative Law Judge (Chief ALJ). The final administrative action order affirmed an adjudication and order, dated July 29, 2019, issued by an Administrative Law Judge (ALJ), which dismissed Recipient's appeal of a determination of the Office of Developmental Programs (ODP), through Greene County Human Services (GCHS), regarding Recipient's transportation to Pathways of Southwestern Pennsylvania's (Pathways) Adult Training Facility (ATF). For the reasons set forth below, we affirm DHS's final administrative action order.

I. BACKGROUND

Recipient is a 37-year-old male with severe intellectual disabilities. Recipient lives with his parents in Greene County, Pennsylvania. The family home is located on a gravel road that is three miles from the paved roadway. Since 2005, Recipient receives Medical Assistance (MA) and Home and Community-Based Services (HCBS) under the Consolidated Waiver (Waiver) program.

The Waiver program is authorized by Section 1915(c) of the Social Security Act, 42 U.S.C. § 1396n(c). It permits states to develop programs to support persons with intellectual disabilities, who otherwise would be eligible for and placed in an intermediate care facility, to receive services in their home and community and avoid institutionalization. (Certified Record (C.R.) at 292; see 42 U.S.C. § 1396n(c).) The United States Department of Health and Human Services, Centers for Medicare and Medicaid Services, oversees states’ implementation of this program. (Id .; see 42 U.S.C. § 1396n(c).) ODP administers the Waiver program for DHS. For individuals residing in Greene County, GCHS is responsible for authorizing all services and supports that are funded under the Waiver program. Recipient's services, pursuant to his Individual Support Plan (ISP), include transportation services to the ATF. To better place this case into context, and because DHS's recent decision is based in part on the doctrine of collateral estoppel, we will review the events that preceded Recipient's most recent appeal.

A. Recipient's First Appeal

Recipient's ISP supports services at the ATF for five days per week. Prior to March 2011, Pathways provided Recipient with door-to-door transportation services from his home to the ATF. During a meeting that occurred between Recipient's family and Pathways on March 8, 2011, Pathways informed the family that it was discontinuing Recipient's door-to-door transportation services effective March 21, 2011. Pathways offered to continue to transport Recipient if his parents could meet its driver at a location approximately five miles from the family home, but his parents did not agree to that modification. On March 11, 2011, the Department of Public Welfare,¹ through GCHS, issued a written notice to Recipient informing him of Pathways’ discontinuance of door-to-door transportation services due to financial reasons. Recipient appealed the decision. ALJ Karen C. Lewis held a hearing on the matter in May 2011.²

The GCHS Assistant Director of the Intellectual and Developmental Disabilities Department (Assistant Director) testified that Pathways, due to wear and tear on its vehicles, the loss of its four-wheel drive vehicle, and the inefficiency of using its large passenger van for Recipient's services, would no longer transport Recipient from his home to the ATF. (C.R. at 22.) The Assistant Director testified that Recipient could choose another provider, such as "Green[e] Arc," which provides transportation to the other adult training facilities in Greene County, or Recipient's parents could take him to the ATF and they would receive mileage reimbursement. (Id. ) The Assistant Director testified that "they no longer have contracts with providers[,] and ... a provider can become ‘unwilling’ at any time; there is no sanction imposed upon an unwilling provider." (C.R. at 23.) The Assistant Director testified that the "Medical Assistance Transportation Program (MATP) does not provide transportation to adult training facilities." (Id .)

Recipient's father testified that at least $22,000 was budgeted in his son's ISP for transportation to the ATF. (Id. ) Recipient's father testified that he sought to review Pathways’ financial analysis on transportation costs, but the analysis was never provided to him. (Id. ) Recipient's father testified that prior to March 2011, he and his wife met the Pathways’ vehicle on "bad weather" days or when Pathways did not have an appropriate vehicle to come to his house. (Id. ) Recipient's father indicated that, subsequent to the notice that Pathways would no longer provide door-to-door transportation for Recipient, Pathways proposed an alternate pick-up location in a letter, dated March 14, 2011. (Id. ) Recipient had never before met the Pathways van at the proposed location, and Recipient's father did not feel this was a safe place for his son to get on and off the van. (Id. ) Recipient's father contended that there really is no other provider in Greene County, because Greene Arc does not have a permanent location, is farther away from Recipient's home, and it was not Recipient's family's chosen provider for the services. (Id. ) Recipient's father called Pathways’ behavior a "professional violation" and questioned the legality of the proposed transportation arrangement. (Id. at 23-24.) Finally, Recipient's father testified that Pathways is not an unwilling provider of door-to-door service for everyone; they are only unwilling to drive more than twenty miles for Recipient.

ALJ Lewis, in her adjudication and order dated June 13, 2011, denied the appeal, in part, and sustained the appeal, in part. In so doing, she stated:

[Recipient] receives services under the ... Waiver[,] ... [and] a Waiver recipient has the right to choose a willing and able provider. A Waiver provider is not required to provide services to an individual. [Recipient's] provider for transportation services, to and from his day program was [Pathways]. [Pathways] was providing door-to-door transportation services. Although [Pathways] did not attend the hearing on this matter, it is clear from the testimony of [Recipient's] representatives and GCHS[’s witness] that [Pathways’] decision to stop door-to-door services was based upon financial reasons. This decision was not a violation of the regulations.

....

The written notice of service reduction was issued March 11, 2011. [Recipient's] representatives filed an appeal five days later, on March 16, 2011. As such, services should have continued during the pendency of the appeal. They did not. [Pathways] discontinued [Recipient's] door-to-door transportation services on March 21, 2011[,] and GCHS failed to compel [it] to continue services until this issue was adjudicated. However, the undersigned can provide no remedy. It is not possible to go back and provide door-to-door transportation services for days which have passed. GCHS[’s witness] testified credibly that [Recipient's] parents are being reimbursed for days they transport [Recipient] to and from the [ATF]. [Recipient's] parents did not dispute this. ...

(C.R. at 26 (emphasis in original).) BHA affirmed ALJ Lewis's adjudication and order on June 14, 2011. Recipient sought reconsideration, which the Secretary of DHS granted. By final order dated March 14, 2012, the Secretary of DHS ultimately upheld BHA's order, affirming ALJ Lewis's adjudication and order.

Recipient then filed a petition for review in our appellate jurisdiction. Recipient raised the following issues in the appeal: (1) whether Pathways’ proposal to modify transportation services violated regulations relating to medical assistance; (2) whether DHS failed to follow all relevant procedures during the appeal process; (3) whether DHS violated Recipient's due process and equal protection rights; and (4) whether DHS and Pathways solicited his participation in an "illicit scheme" and abandoned Recipient by supporting the termination of his transportation services. Bussoletti v. Dep't of Pub. Welfare , 59 A.3d 682, 686 (Pa. Cmwlth. 2012) (Bussoletti I ), appeal denied , 91 A.3d 1240 (Pa. 2013).

In reviewing Recipient's claims that DHS's and Pathways’ changes to Recipient's transportation services violated regulations, we concluded that, when Pathways chose and informed Recipient of its intent to end door-to-door transportation services, Pathways became an unwilling provider, and Recipient does not have the right to obtain services from an unwilling provider.³ Id . Similarly, we concluded that DHS could not compel an unwilling provider to provide services, as there was no binding contract or sanction available to compel a provider to continue services. Id . We reasoned:

[T]he issue is whether the regulations require Pathways to continue providing door-to-door transportation service and preclude any modification or reduction of service. ... We are aware of no regulation requiring an unwilling provider to continue offering a service or precluding the modification, reduction or cessation of service. Based on the clear regulatory language, we agree with [ALJ Lewis] that Pathways did not violate the regulations by its decision to discontinue door-to-door transportation service and its proposal to offer modified service.

Id . at 687. We further concluded that "questions regarding the compensation Pathways may or may not receive for proposed modified services is not the issue in this appeal." Id .

We next addressed Recipient's claims that ALJ Lewis: (1) failed to...