IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abeer Abdel Jalil, :
v. : No. 1856 C.D. 2019
: SUBMITTED: October 23, 2020
Department of Human Services, :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
BY JUDGE CEISLER FILED: February 22, 2021
Abeer Abdel Jalil (Recipient), pro se, petitions this Court for review of the
November 13, 2019 Final Administrative Action Order of the Department of Human
Services’ (DHS), Bureau of Hearings and Appeals (BHA), which affirmed DHS’s
decision denying Recipient’s request for an exception to the limitation on the number
of hours of care that Recipient’s family members may provide through the
Consolidated Waiver Program (Program) operated by DHS.2 The issue before this
Court is whether denial of the requested exception poses a threat to Recipient’s
safety, health, and religious beliefs. After careful review, we affirm the BHA.
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
The Waiver Program is authorized by Section 1915(c) of the Social Security Act, 42
U.S.C. § 1936n(c), which enables individuals receiving medical assistance to access services and
support through their home or community, rather than in an institutional setting. Regulations
governing the Waiver Program are found in 55 Pa. Code §§ 51.1 – 52.65.
Recipient is a 23-year-old woman diagnosed with Retts Syndrome, seizure
disorder, apnea, cerebral palsy, and severe intellectual disability. Certified Record
(C.R.), Item No. 7, Remand Record at 88. Recipient’s receipt of Waiver Program
services is governed by an individual support plan (ISP), which recommends that
she receive around-the-clock supervision.
Id. Prior to receiving
services, Recipient attended high school from 9:00 a.m. to 3:00 p.m., Monday
Id. at 51.
During that period, she was cared for by a nurse during
the school day and by a home health aide (aide) in the evenings. C.R., Item No. 10,
Notes of Transcript (N.T.), 10/25/19, at 72, 77; Item No. 7, Remand Record at 145.
These services ended on July 17, 2018, the day before Recipient turned 21. C.R.,
Item No. 7, Remand Record at 145. Recipient’s Waiver Program services, which
became effective July 18, 2018, are provided by the Ellison Nursing Group, LLC
Id., at 83, 97.
She currently attends a day program during the
week, although the number of days she attends varies. C.R., Item No. 10, N.T.,
10/25/19, at 19-20.
Under the Waiver Program, a family member may be paid to provide services
when those services constitute extraordinary care, the services provided exceed
those which a parent would normally provide, and the services would otherwise be
provided by a qualified service provider funded through the Waiver Program. C.R.,
Item No, Remand Record at 30. A family member is limited to providing in-home
and community support or life sharing services.
Id. A family member
a maximum of 40 hours of services per week.
Id. at 32.
A maximum of 60 hours
per week is authorized when multiple family members provide services.
Id. This limitation is
known as the 40/60 Rule.
An exception to the 40/60 Rule is made when: (1) unexpected circumstances
such as inclement weather, sudden illness, or the unplanned extension of medical
leave which prevents the arrival of a regularly scheduled worker and another worker
is unavailable; (2) situations in which a regularly scheduled worker is terminated or
refuses to work without providing adequate notice; or (3) the sudden loss of a
caregiver who provided uncompensated support which kept the services provided
by a family member at or below the limitations set forth in the 40/60 Rule.
Id. The exception to
the 40/60 Rule is subject to a maximum of 90 days.
Id. Presently, Recipient’s parents
are paid to provide 60 hours of her care each week. C.R., Item
No. 10, N.T., 10/25/19, at 65.
On August 2, 2018, Recipient appealed the application of the 40/60 Rule and
requested a permanent exception to the 40/60 Rule, which would permit her family
members to exclusively provide, and be compensated for, her 168 weekly hours of
Waiver services. C.R., Remand Record at 19. Recipient asserted that, due to her
religious, nutritional, medical, and daily routine needs, non-family members were
unable to ensure her current quality of care, level of activity, health, or safety.
Id. at 25.
She maintained that her condition required the presence of two caregivers and
constant supervision of her family.
Id. Recipient averred that
she is not comfortable
“with people who aren’t family[,]” and her previous experience with “outside
assistance” had been negative, as her unrelated aides did not know how to properly
dress, carry, and feed her.
Id. In a letter
dated October 18, 2018, DHS indicated that Recipient’s situation
did not meet the criteria for an exception to the 40/60 Rule.
Id. at 37.
that the 40/60 Rule only applied to the amount of compensation paid to Recipient’s
family members providing her services, and the scope of Recipient’s services under
her ISP had not been reduced or suspended.
Id. A. First Adjudication
During an October 16, 2018 hearing before an administrative law judge (ALJ),
Recipient’s father, Awad Abdel-Jalil (Father), asserted that he was not aware of the
Id. at 257.
A representative of DHS acknowledged that an exception to
the 40/60 Rule was made for Recipient’s brother (Brother), who suffers from similar
medical complications as Recipient; however, the circumstances behind DHS’s
grant of the exception was unknown.
Id. at 262.
A representative of Service
Provider clarified that Father believed the exception granted to Brother applied to
the entire family.
Id. at 259.
Father testified that he was not informed Recipient could receive nursing care
outside the 60 hours of service provided by her family members.
Id. at 249.
agreed that he could consider nursing assistance; however, Father was not sure he
could trust a nurse coming into the home because he had a “bad experience”
Id. at 250.
In an adjudication issued on November 16, 2018, the ALJ noted that Father
had not explored the possibility of in-home nursing care, which would cover the
service hours exceeding those for which Recipient’s family received compensation.
Id. at 189.
The ALJ further found that she had no jurisdiction to alter the 60-hour
service limit provided by Recipient’s family. Accordingly, the ALJ denied
Id. at 190. 3
Father did not specify the nature of this experience and whether it involved care provided
to Recipient or Brother.
The BHA affirmed the ALJ’s decision on December 5, 2018. Recipient’s
request for reconsideration was denied by the Secretary of Human Services, Teresa
D. Miller, on December 28, 2018. Recipient petitioned this Court for review of
Secretary Miller’s denial of reconsideration on January 24, 2019. See Abdel-Jalil v.
Dep’t of Hum. Servs. (Pa. Cmwlth. No. 84 C.D. 2019).
DHS subsequently determined that the record should be developed further,
and a decision rendered on the substantive issues raised by Recipient.
Id., Item No. 7,
Ex. C-11. Consequently, the matter was remanded to the BHA for further
proceedings and the issuance of a new adjudication by order of this Court dated April
Id., Item No. 2,
Abdel-Jalil, Order April 11, 2019.
B. Second Adjudication
The ALJ conducted a remand hearing on September 25, 2019. Father once
more testified on Recipient’s behalf, as did her mother, Khitam Abdel-Jalil (Mother).
Father testified that Recipient receives 16 hours of in-home and community
services and 8 hours of companion services through the Waiver. C.R., Item No. 10,
N.T., 9/25/19, at 17. Recipient’s services are provided by Father, Mother, and
Recipient’s older sister.
Id. Mother’s brother provides
additional assistance “when
Id. at 18.
Brother also receives Waiver services.
Id. at 35.
Brother an exception to the 40/60 Rule due to his “circumstances.”4
Id. at 37, 39.
Mother is responsible for Recipient’s care during the week, while Father takes
care of Brother.
Id. at 27, 31.
Recipient and Brother participate in a community
center program during the week, although the days they attend each week varies.
Id. at 19-20.
Father related that Recipient and Brother also enjoy going to “different
The nature of these circumstances was not identified.
places” like the grocery store and the movie theater.
Id. at 20.
accompany Father on these outings in case Recipient has a seizure.
Id. at 21.
assistance of “at least” two people is required during Recipient’s seizures.
Id. at 22.
Recipient never leaves the home with only one parent or family member; rather, “her
family take[s] her outside.”
Id. at 48.
Mother and Father help Recipient with bathing
Id. Recipient wears a
“mask” at night for her apnea.
Id. at 23.
watches over Recipient throughout the night to ensure she is breathing.
Id. at 22.
Father testified that his family follows Islamic law, which prohibits a man
from being alone with an unrelated woman.
Id. at 25.
As a result, Recipient’s
services and care cannot be provided by an unrelated male aide.
Id. at 31.
Islamic law would not prohibit an unrelated female from caring for Recipient, Father
related that such a circumstance would only work if Mother or his older daughter
Id. at 26.
Because Recipient “doesn’t know where [she is],” her presence
would not prevent a violation of the restriction against Father being alone with an
Id. at 28.
While Mother is normally with her family at all times,
Father asserted that Mother would look for a job outside the home if a female aide
were available to care for Recipient, because Mother would not want to “just sit in
the home not doing a thing.”
Id. at 28-29.
As Recipient’s family speaks Arabic in the home and “very little” English,
Father does not believe that a non-Arabic speaking aide would be able to
communicate well with Recipient.
Id. at 32.
He conceded that Recipient attended
English language schools and the nurses assigned to her did not speak Arabic.
Id. at 44, 50.
Father testified that his family had issues with the nursing care provided to
Recipient when she attended high school.
Id. at 34.
One nurse was arrested for
shoplifting while at the mall with Recipient.
Id. at 34, 42.
Another nurse was absent
59 days during the school year.
Id. at 49.
However, Father described one school
nurse, who provided Recipient’s care for several years, as “excellent” and
Id. at 51.
When asked during cross-examination why Recipient could not stay at home
with an unrelated aide while Father drove Brother elsewhere as part of his
community care, Father maintained that Recipient and Brother must travel together,
as they attended the same day program.
Id. at 56.
Father stated that the daily
schedule his family follows, which he and Mother create in conjunction with Service
Provider, allows no flexibility.
Id. at 59-60.
During her testimony, Mother confirmed that she would look for another job
and not stay home “doing nothing” if she was not caring for Recipient during the
Id. at 65.
Regarding the family’s daily schedule, Mother stated that she and
Father take Brother and Recipient out for activities each day and return home at 3:00
p.m., when their youngest daughter comes home from school.
Id. at 68.
prefers to keep Brother and Recipient busy, as they are “used to the idea of going
Id. at 69.
While Mother asserted that their schedule is “almost the same” each
day, she agreed that it was somewhat flexible, as the activities they participate in
vary and may change if Mother “hear[s] about anything going on.”
Id. at 69-71.
However, the schedule is largely dictated by the “the convenience of [her children].”
Id. at 60.
Mother testified that when Recipient attended school, she was cared for by a
nurse during the day.
Id. at 72.
After school, Recipient was attended to by an
unrelated female aide who stayed in the home until Recipient went to bed.
Id. at 72, 77.
There was no issue with the aide being an unrelated female, because “most of
the time” Mother was at home.
Id. at 77.
None of Recipient’s assigned nurses or
aides were family members.
Id. at 73.
When asked why non-family members could
not continue providing Recipient’s care, Mother stated that they had “bad
experience[s] with aides.”
Id. at 74.
Mother felt that she and Father had to finish
the work performed by Recipient’s aides because they did not perform their jobs
Id. She maintained that
no one could take care of Recipient and Brother
as well as she and Father did.
Id. at 75.
Mother acknowledged that she did not work
outside the home during the period Recipient was in school, and she agreed she did
not have to work at the present time.
Id. In a decision
issued on October 25, 2019, the ALJ found that, prior to
receiving services through the Waiver Program, Recipient attended school where
she received care from nurses who were not family members. C.R., Item No. 6,
Final Administrative Order, Findings of Fact (F.F.) Nos. 3-4. Recipient is eligible
to receive daily care, which consists of 16 hours of in-home and community support
and 8 hours of companion care, and her family members received compensation for
providing 60 hours of that care each week. F.F. Nos. 10-11. The 60-hour
compensation limit did not represent a change or decrease in the number of hours of
support Recipient could receive each week, and DHS took no action to deny, reduce,
or suspend Recipient’s Waiver Program services. F.F. Nos. 12-13. The ALJ also
found that the testimony of Mother and Father was contradictory. F.F. No. 16.
After summarizing the testimony presented at both hearings, the ALJ noted
the following contradictions. Father testified that Arabic is spoken at home and he
was unsure whether a non-Arabic speaking aide could provide Recipient’s care.
C.R., Item No. 6, ALJ Adjudication at 5. He agreed on cross-examination, however,
that Recipient received care from non-related, non-Arabic speaking nurses while
enrolled in high school.
Id. Father acknowledged that
Recipient was enrolled in an
English-speaking school for many years.
Id. Father maintained that,
under Islamic law, he could not be alone in the same
space as a female who was not his wife, daughter, or mother.
Id. He contended that,
if an unrelated female aide provided in-home services for Recipient, Mother would
have to get a job.
Id. This would place
Father in the position of being alone in the
home with a female aide, in violation of Islamic law.
Id. Mother testified that
if she is not compensated for providing Recipient’s care,
she would have to get another job.
Id. She acknowledged, however,
that she was
not otherwise employed when Recipient attended high school and received care from
nurses at school and she did not have to work if an aide took care of Recipient.
She felt, however,
that “no one” could take care of Recipient like she and Father do.
Id. Mother testified that
Recipient received after-school care at home from non-
related aides, and these non-family aides were present in the home until Recipient
went to bed.
Id. Mother’s reason for
rejecting care from an unrelated aide was based
on prior bad experiences with some aides and Mother related that she ended up doing
much of the aides’ work.
The ALJ found
that Recipient’s family members were never compensated for
providing 168 hours of Recipient’s Waiver Program services, and there was no
dispute that their compensation was limited to a maximum of 60 hours per week.
The Waiver Program provides 3 exceptions to the 40/60 Rule. These
exceptions include: 1) unexpected circumstances such as inclement weather or
sudden illness which prevent a regularly scheduled worker from arriving and where
a replacement worker is not available; 2) a situation in which a regularly scheduled
worker has been terminated or refuses to provide care and adequate notice has not
been given; and 3) the sudden loss of an uncompensated caregiver whose support
kept the compensated services provided by family members at or below 40/60 hours
Id. at 10.
The ALJ found that neither Recipient nor her family members
met any of the exceptions to the 40/60 Rule.
The ALJ acknowledged
that DHS granted Brother an exception to the 40/60
Rule; however, no evidence was presented which established the type of exception
granted or the reasons for the exception.
Id. at 11.
With regard to Recipient’s argument that care provided by non-family
members represented a threat to her health and safety, the ALJ noted that Recipient’s
sister is only able to assist Mother and Father in the evenings and on weekends.
Thus, Father and Mother are primary caretakers for both Recipient and
Brother, neither of whom is able to walk or speak, and who both suffer from a variety
of medical complications, including seizures, intellectual disabilities, and cerebral
Id. As a consequence,
Father and Mother provide 168 hours of care for
Brother and 60 hours of care for Recipient.
Given that Father
and Mother are the sole providers of care during the day,
the ALJ felt that the assistance of another aide would be helpful, particularly in light
of Father’s testimony that two or more people are needed when Recipient has a
seizure, and such a circumstance could arise while Mother or Father is attending to
Id. at 11-12.
In addition to caring for Recipient and Brother during
the day, Father testified that he watches over Recipient during the night to ensure
she is breathing adequately.
Id. at 12.
The ALJ questioned how Father fared with
such a schedule and suggested the resultant lack of adequate rest could lead to
impairment of Father’s judgment.
Id. Given these circumstances,
concluded that Recipient’s interests would be best served if her parents accepted the
assistance of an unrelated aide or aides, who could provide the additional 108 hours
of Waiver Program services to which Recipient is entitled.
The ALJ was
similarly unpersuaded by Recipient’s argument that the
presence of an unrelated aide presented a threat to her religious beliefs.
Id. at 13.
Father clearly objected to Recipient receiving care from any unrelated aide.
He agreed, however, that Islamic law would permit a female aide to take care of
Recipient, and a female aide could be in the home if Mother or Recipient’s sister
Id. Both Mother and
Father testified that Recipient was cared for in
high school by nurses who were not family members and who did not speak Arabic.
Id. at 13.
Father’s testimony that no unrelated aides took care of Recipient at home
was contradicted by Mother’s testimony that an unrelated aide took care of Recipient
at home after school and remained with her until bedtime.
Given that Mother
is always present, as she and Father both provide Brother’s
care, the ALJ concluded that the presence of an unrelated female aide would not
present a problem.
Id. Any alleged inflexibility
in Mother and Father’s weekly
schedule was dismissed, as Mother testified the schedule was largely based on the
“convenience of the kids.”
While Father testified
that Mother would seek employment outside the home
in the event another person provided Recipient’s care, Mother presented conflicting
testimony that outside work was not necessary.
Id. Rather, Mother’s prior
experience with Recipient’s unrelated caregivers led her to conclude that no one
could care for Brother and Recipient as well as she and Father could.
Furthermore, Mother did
not work outside the home when Recipient was enrolled in
high school and not yet receiving Waiver Program services.
In light of the testimony and evidence presented, the ALJ determined that
Mother’s and Father’s objections to utilizing the services of an unrelated aide were
based on personal preference and their lack of confidence in the professional skills
of any other provider.
Id. Accordingly, the ALJ
concluded that DHS correctly
enforced the 40/60 Rule and no exception should be granted.
BHA affirmed the
ALJ’s decision on November 13, 2019. DHS Secretary
Miller denied Recipient’s request for reconsideration on December 13, 2019. This
Recipient argues that DHS erred in “reducing” the hours of Waiver Program
services her family members may provide. Recipient Br. at 6. She maintains that
DHS previously granted her an exception, which permitted her family members to
provide 168 hours of care and DHS has failed to justify its withdrawal of that
exception. Recipient contends that the “newly imposed” reduction in hours, and the
introduction of non-family caretakers, threatens her health, safety, and religious
beliefs in violation of “federal and state rules and the due process clause of the U.S.
Constitution,” and Section 1902(a)(10)(B) Social Security Act,6 which requires that
any medical assistance provided to Recipient may not be less than that made
This Court’s standard of review is limited to determining whether the BHA’s adjudication
is supported by substantial evidence, whether the decision is in accordance with applicable law, or
whether constitutional rights have been violated. L.H. v. Dep’t of Hum. Servs.,
197 A.3d 310
n.4 (Pa. Cmwlth. 2018).
42 U.S.C. § 1396a(a)(10)(B).
available to any other such individual.7
Id. at 9.
Recipient also alleges that DHS’s
failure to grant an exception to the 40/60 Rule violates Section 1902(a)(17) of the
Social Security Act,8 which mandates that DHS provide reasonable standards for
determining Recipient’s eligibility for, and the extent of, medical assistance
Recipient concedes that care provided by an unrelated female aide is
permissible under Islamic law. Such a situation remains problematic, however, as
Father provides care for Brother. In the event Mother would have to leave the home
to run errands, Father would be placed in the position of violating his religious
beliefs by remaining in the home with the unrelated female aide.
Recipient has misapprehended the impact of DHS’s decision. There is no
evidence to support Recipient’s assertion that DHS reduced the number of service
hours she may receive under the Waiver Program. To the contrary, Recipient’s most
recent ISP specifies that “[t]here are no plans to reduce [Recipient’s services and
support] at this time[,] as it will provide a health and safety concern[.]” C.R.,
Recipient raises a second argument in her principal brief, in which she suggests that the
introduction of non-family caretakers will increase her and her family’s risk of exposure to
COVID-19 virus. As this issue was not addressed in the BHA’s determination, it is not before this
Court for review.
Recipient’s argument that DHS violated her due process rights under the U.S. Constitution
was first raised in Recipient’s January 24, 2019 petition for review filed with this Court. Issues
cannot be raised for the first time on appeal pursuant to both section 703(a) of the Administrative
Agency Law, 2 Pa.C.S. § 703(a) (a party may not raise upon appeal any question not raised before
the agency), and Rule 1551(a) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.
1551(a) (providing that “no question shall be heard or considered by the court which was not raised
before the government unit”). Accordingly, this issue is waived, and this Court will not address it
42 U.S.C. § 1396a(a)(17).
Remand Record at 91. Recipient’s decision to have Waiver Program services
performed exclusively by her family members does not translate into a refusal by
DHS to provide them. The only limitation imposed by DHS relates to the number
of hours for which Recipient’s family members may be reimbursed for providing
Waiver Program services, and Recipient presented no evidence that DHS ever
granted her an exception to the 40/60 Rule.
Recipient has likewise failed to substantiate her allegations that DHS violated
the provisions of Section 1902(a) of the Social Security Act. Section 1902(a)(10)(B)
provides that a state plan for medical assistance must provide that any assistance
made available to one individual may not be less in amount, duration, or scope than
that made available to a similarly situated individual. 42 U.S.C. § 1396a(a)(10)(B).
Recipient has not demonstrated that the Waiver services provided in her ISP are less
than that made available to another such individual. She is free to take advantage of
the Waiver Program services at her disposal. The degree to which Recipient’s
parents are reimbursed for providing Waiver services does not reduce the amount,
duration, or scope of services to which Recipient could avail herself, if she so chose.
Recipient’s argument that DHS violated Section 1902(a)(17) of the Social
Security Act also fails. Section 1902(A)(17) requires that a state plan for medical
assistance include reasonable standards for determining eligibility for, and the extent
of, medical assistance available. Recipient has not argued that DHS has imposed
eligibility standards that prevent her from obtaining necessary Waiver Program
services. Her quarrel is with DHS’s decision to deny her an exception to the 40/60
Recipient is correct that, per the ISP, she has the “right to select qualified
willing providers” and Recipient can choose another provider “at any time.” C.R.,
Item No. 7, Remand Record at 84. Recipient does not have the concomitant right,
however, to direct payment of services to her family members in excess of the
limitations set forth in the 40/60 Rule. The ALJ found, and Recipient has not argued
to the contrary, that Recipient did not meet the any of the exceptions to the 40/60
Rule. Accordingly, we discern no error in the ALJ’s decision to deny her appeal.
With regard to whether DHS’s decision denying Recipient’s request for an
exception to the 40/60 Rule violated her religious beliefs, the ALJ reviewed the
testimony presented by Mother and Father and determined that their decision to
provide all of Recipient’s Waiver Program services was a matter of personal
preference. It is well established that questions resolving conflicts in the evidence,
witness credibility, and evidentiary weight are within the exclusive discretion of the
fact-finding agency, and not usually matters for a reviewing court. Birdsboro &
Birdsboro Mun. Auth. v. Dep’t of Env’t Prot.,
795 A.2d 444
, 448 (Pa. Cmwlth.
To that end, the record supports the ALJ’s conclusion that personal preference
guided Recipient’s request for an exception to the 40/60 Rule. Although both her
parents expressed concern with the quality of care provided by Recipient’s previous
nurses and aides, they acknowledged that unrelated female aides cared for Recipient
in the home after school until bedtime. Neither Mother nor Father testified that,
during this period, Father was placed in a position where he was left alone with one
of Recipient’s unrelated female aides. Recipient’s school nursing care and home
health aide services ended on July 17, 2018, after which date she began to receive
Waiver Program services. Recipient filed her appeal seeking the 40/60 Rule
exception approximately two weeks later, on August 2, 2018. There is no evidence
demonstrating that Recipient’s circumstances changed in such a short period of time
that would justify her concern that Father would be left alone with a female aide.
Father’s speculation that a non-Arabic speaking aide could not effectively
communicate with Recipient is belied by his praise of an English-speaking nurse
who cared for her over the course of several years.
It is worth noting that the complication presented here implicates Father’s
exercise of his religious beliefs, not Recipient’s. Waiver Program services are
provided to Recipient, not Father, and both Father and Mother agreed that Islamic
law does not prohibit Recipient receiving care from an unrelated female aide. The
overarching theme to Mother’s and Father’s testimony was that they provide the best
care for Recipient. The ALJ’s conclusion that personal preference, and not religious
concerns, drove their decision to provide Recipient’s Waiver Program services, is
amply supported by the record. Accordingly, we affirm the BHA.
ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abeer Abdel Jalil, :
v. : No. 1856 C.D. 2019
Department of Human Services, :
AND NOW, this 22nd day of February, 2021, the November 13, 2019 Final
Administrative Action Order of the Department of Human Services’ Bureau of
Hearings and Appeals is hereby AFFIRMED.
ELLEN CEISLER, Judge