              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel E. Lyons,                        :
                         Petitioner     :
                                        :
                   v.                   :
                                        :
Department of Human Services,           :   No. 1815 C.D. 2015
                      Respondent        :   Submitted: May 20, 2016


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                 FILED: August 25, 2016

            Daniel E. Lyons (Lyons) petitions this Court, pro se, for review of the
Department of Human Services (DHS), Bureau of Hearings and Appeals’ (BHA)
August 17, 2015 Final Administrative Action Order (Final Order) affirming the
Administrative Law Judge’s (ALJ) Order and Adjudication (Decision) denying his
appeal. The sole issue presented for this Court’s review is whether the BHA erred in
discontinuing Lyons’ medical assistance (MA).
            Lyons is 67 years old, and has a history of colon cancer with residual
complications that have rendered him dependent upon daily catheter use and
intravenous parenteral nutrition and hydration treatments five days per week for the
rest of his life. Lyons has undergone daily intravenous treatments for approximately
15 years, and received MA benefits for approximately 20 years. DHS provides
Lyons with MA under its Healthy Horizons program (HH) for low income elderly
and disabled persons.
              During an annual renewal of Lyons’ HH MA benefits, the Allegheny
County Assistance Office (CAO) discovered that although Lyons’ gross monthly
income for the previous year was mistakenly recorded as zero, Lyons’ monthly gross
Social Security benefit in 2015 was $1,894.00, and his monthly average gross
pension from Sears was $427.71. Based on this information, the CAO calculated
Lyons’ actual gross monthly income, less the $20.00 deduction,1 as $2,301.71, which
exceeded the $981.00 HH MA income limit.2
              On June 3, 2015, the CAO notified Lyons that, effective June 18, 2015,
his MA benefits would be discontinued because his income exceeded the applicable
income limit.      Lyons appealed to the BHA on June 10, 2015, and the CAO
temporarily continued MA benefits pending the BHA’s decision. On July 20, 2015, a
telephone hearing was held before a BHA ALJ. On August 6, 2015, the ALJ denied
Lyons’ appeal. On August 17, 2015, the BHA issued its Final Order affirming the
ALJ’s Decision.3 Lyons appealed to this Court.4
              Essentially, Lyons argues that he is eligible for MA benefits pursuant to
DHS’ Non-Money Payment (NMP) spend-down program5 based exclusively upon his

       1
         Section 181.131(b) of DHS’ Regulations establishes a $20.00 deduction from the unearned
income expenses. See 55 Pa. Code § 181.131(b).
       2
         The CAO determined that Lyons’ gross monthly income was $2,321.71. However, based
upon our review of the record, the CAO slightly miscalculated Lyons’ monthly pension. Lyons
received two annual pensions from Sears, $3,007.97 and $2,148.55 respectively, totaling $5,156.52.
Reproduced Record at 23, Ex. C-6. Thus, Lyons received $429.71 per month, not $427.71. Lyons’
$1,894.00 Social Security benefits combined with his recalculated Sears’ monthly pension benefits
of $429.71, less the $20.00 deduction, totaled $2,303.71 per month, not $2,301.71.
       3
         On August 24, 2015, Lyons requested reconsideration which DHS denied by September
30, 2015 order. See Reproduced Record at 48-49. Lyons’ preserved date of appeal was September
8, 2015.
       4
         “Our scope of review in an appeal of an adjudication of [DHS] is limited to determining
whether constitutional rights were violated, an error of law was committed or whether necessary
findings of fact are supported by substantial evidence.” Karpinski v. Dep’t of Pub. Welfare, 13
A.3d 1050, 1052 n.3 (Pa. Cmwlth. 2011).
       5
          Lyons also argues that he is eligible for MA through an income requirement waiver;
however, because the ALJ properly determined that Lyons misunderstood the contents of the HH
                                                2
proven monthly medical expenses. The Human Services Code6 (Code) is intended, in
part, to authorize the furnishing of MA to individuals who are “permanently disabled
and unable to work.” Section 401 of the Code, 62 P.S. § 401. In determining who is
eligible to receive MA, the Code defines who is a medically needy recipient. See
Section 442.1 of the Code, 62 P.S. § 442.1.7 DHS’ Regulations thereunder set forth
the criteria to receive MA benefits.           See Sections 140.201-140.341 of DHS’
Regulations, 55 Pa. Code §§ 140.201-140.341. When an MA benefit recipient is
ineligible for HH MA, the CAO is mandated to determine if the recipient is eligible
for benefits under another MA category. See Section 121.3 of DHS’ Regulations, 55
Pa. Code § 121.3; see also Reproduced Record (R.R.) at 18.
              Pursuant to Chapter 181 of DHS’ Regulations, entitled Income
Provisions for Categorically Needy NMP-MA, a recipient qualifies for MA under the
NMP-MA spend-down if the recipient’s medical expenses exceed the recipient’s
income. Section 181.13 of DHS’ Regulations states, in relevant part:

              (a) Eligibility under NMP-MA spend-down is available
              to an applicant/recipient except for an applicant/recipient
              receiving skilled nursing care or intermediate care.
              (b) The applicant/recipient shall meet the NMP-MA
              eligibility criteria, including the income criteria, to
              qualify for NMP-MA spend-down.
              (c) The period of NMP-MA spend-down eligibility begins
              the day of the calendar month in which eligibility for NMP-
              MA spend-down is established and continues through the
              last day of that calendar month.
              (d) Income eligibility for NMP-MA spend-down exists
              when the applicant’s/recipient’s:


letter he claimed was the waiver notification, we will not address this argument. See Reproduced
Record at 18.
        6
          The Act of June 13, 1967 (P.L. 31, No. 21), as amended, 62 P.S. §§ 101–1503.
        7
          Added by Section 5 of the Act of July 31, 1968, P.L. 904.
                                               3
  (1) Countable net income less $10 is equal to, or less
than, the appropriate NMP-MA income limits in Appendix
A for the aged, blind and disabled categories not receiving
skilled nursing care or intermediate care.
  (2) Countable net income less $10 and medical expenses
in subsection (e) is equal to, or less than, the appropriate
NMP-MA income limits in Appendix A for the aged, blind
and disabled categories not receiving skilled nursing care or
intermediate care.
....
(e) Deductible medical expenses include:
  (1) Unpaid medical expenses, including those
reasonably expected to be incurred, which meet the
requirements in this paragraph. The unpaid medical
expenses:
   (i) Are not subject to payment by a third-party.
   (ii) Are not to be paid for under the NMP-MA Program
once NMP-MA is authorized.
   (iii) Are the legal obligation of the applicant/recipient.
   (iv) Have not previously been used as a deduction in
the determination of eligibility for a prior authorization of
MA.
  (2) Paid medical expenses which meet the requirements
in this paragraph. The paid medical expenses:
  (i) Are paid in the calendar month for which spend-
down is requested.
   (ii) Have not previously been used as a deduction in the
determination of eligibility for a prior authorization of MA.
(f) Medical expenses meeting the requirements in
subsection (e) are deducted in the calendar month for which
spend-down is requested in the following order:
  (1) Medicare and other health insurance premiums
including enrollment fees, deductibles or coinsurance


                              4
              charges incurred by the applicant/recipient regardless of
              whether they are paid or unpaid.
                (2) Copayments or deductibles required by [DHS]. An
              applicant/recipient participating in the Copayment Program
              required by [DHS] is permitted a medical expense
              deduction for copayment expenses, subject to the
              copayment limit established by [DHS].
                (3) Expenses incurred—paid and unpaid—by the
              applicant/recipient for necessary medical and remedial
              services recognized under State statutes or regulations but
              not included in the NMP-MA Program.
                (4) Expenses incurred—paid and unpaid—by the
              applicant/recipient for necessary medical and remedial
              services that are included in the NMP-MA Program.
              (g) A monthly review of eligibility for NMP-MA spend-
              down is required except when the countable net income less
              $10 is equal to, or less than, the appropriate income limit.
              A monthly review does not require a reapplication unless:
                (1) The monthly review falls in the month that a complete
              reapplication of eligibility for NMP-MA is due.
                (2) Three consecutive months have elapsed since the
              applicant/recipient requested a determination of eligibility
              for NMP-MA spend-down.

55 Pa. Code § 181.13 (emphasis added). The NMP-MA income limit consists of the
federal Supplemental Security Income rate, plus the payable state supplement (SSI).
See 55 Pa. Code § 181.1(f)(1). Section 181.131(b) of DHS’ Regulations establishes a
$20.00 deduction from the unearned income expenses.             See 55 Pa. Code §
181.131(b).    Section 181.13(d)(1) of DHS’ Regulations incorporates a $10.00
deduction when determining income eligibility for the NMP-MA spend-down.
              Here, the ALJ stated that the 2015 federal monthly SSI rate for one
person living in Pennsylvania was $755.10. See R.R. at 19. The ALJ determined that
Lyons’ monthly gross income of $2,321.71, less the $20.00 standard deduction and
less the $10.00 spend-down deduction, totaled $2,291.71. See R.R. at 20. After the
                                           5
2015 monthly $755.10 SSI rate is subtracted from Lyons’ monthly gross income, the
ALJ found that Lyons’ monthly spend-down obligation was $1,536.60. See R.R. at
20. The ALJ concluded that in order for Lyons to continue to receive MA, he
needed to verify medical expenses of that amount each month to qualify for MA
for the remainder of the month. See R.R. at 20. Based on Lyons’ corrected
pension income discussed in footnote 2, Lyons’ monthly spend-down obligation is
$1,538.61.
             However, rather than making said determination, the ALJ stated:

             The ALJ concludes [Lyons] is ineligible for HH MA
             because his countable income exceeds the HH MA limit of
             $ 981.00, and his monthly NMP spend-down obligation is
             $1,536.60.
             [Lyons] submitted a letter from his physician for the
             hearing record that explains his health problems and his
             need for the nutrient fusions he receives five days a week.
             (Exhibit A -2)
             [Lyons] has verified serious health problems and may
             have extraordinary medical expenses once MA is
             discontinued. The Regulation at [Section 275.4(h),] 55 Pa.
             Code § 275.4(h), however, states the hearing decision of the
             ALJ must be based on the regulations established by [DHS]
             and the ALJ may not make a ruling concerning the validity
             or the fairness of a regulation, nor may the ALJ modify or
             invalidate a regulation.
R.R. at 20 (emphasis added).
             We must, therefore, determine based on the record whether Lyons
verified medical expenses are at least $1,538.61 per month. During the July 20, 2015
hearing, Lyons testified to the costs of medical insurance if he did not have MA, and
the daily parenteral nutrition and hydration infusions:

             A. [Lyons] You know, like if I got premiums and paid my
             bills, for me to be on the platinum plan --- I’d have to get
             the best plan. It would probably be anywhere from
             $600[.00] to $900[.00] a month, and they don’t cover
                                           6
              infusion services. TPN [(Total Parenteral Nutrition)8] is
              $325[.00] a day. The other days, I do hydration. That’s
              $125[.00] or $150[.00].
              Q. [ALJ] Does Medicare help with some of that?
              A. . . . In fact, I can’t find anything that will cover this
              except for Medicare and Medicaid together.

R.R. at 44 (emphasis added).
              Lyons also submitted his physician Jorge Vazquez, M.D.’s (Dr.
Vazquez) July 17, 2015 letter, in which Dr. Vazquez verified Lyons’ serious medical
conditions and his need for ongoing daily medical treatments for the rest of his life.
Dr. Vazquez described:

              [Lyons] has Short Bowl Syndrome with chronic
              malabsorption and is unable to maintain hydration or
              normal nutrition eating only by mouth. Despite eating over
              3,000 kcal/day he is unable to maintain normal hydration
              and nutrition and is dependent on Parenteral [N]utrition
              and intravenous hydration 5 times per week. Parenteral
              nutrition provides him with protein, carbohydrates, fats,
              vitamins and minerals which he is incapable of obtaining
              from his oral diet alone.
              He has been dependent on Parenteral Nutrition since 1999,
              and at this time it is expected he will need Parenteral
              Nutrition for the rest of his life. . . .
              In Summary, [] Lyons has a chronic disease that only can
              be treated now with Parenteral Nutrition and he will
              need to continue this treatment for the rest of his life.
              He needs to continue to have coverage for this therapy.

R.R. at 9 (emphasis added).
              Based on the foregoing, Lyons’ medical expenses total, at the barest
minimum, $2,500.00 a month.9 Clearly, Lyons verified that he meets and even far

       8
        TPN is a method of getting nutrition into the body through the veins.
       9
        This figure only factors in hydration costs 5 days a week, and not the higher expense of
TPN, since it is unclear based on this record how many days Lyons undergoes each therapy. It also
                                               7
exceeds the monthly spend-down obligation of $1,538.61 necessary for him to
qualify for MA.
              Furthermore, Section 181.3 of DHS’ Regulations specifies:

              (a) The applicant/recipient or a person acting on his behalf
              is required to report and verify earned and unearned
              income, allowable deductions, such as work and personal
              expenses, and medical expenses used in determining
              eligibility for MA.
              (b) Verification for income, expenses and deductions
              consists of documentation specified by [DHS] which is
              appropriate for the item being verified and includes, but is
              not limited to, paystubs, pay envelopes, a statement by the
              employer or other documentary proof of the business
              income and work and personal expenses of the
              applicant/recipient, award letters or copies of benefit
              checks.
              (c) Verification for medical expenses includes, but is not
              limited to, invoices, bills, receipts and statements which
              identify the type, amount and the date of the medical
              service.
              (d) An applicant/recipient may not be denied MA for lack
              of verification if he has cooperated in the verification
              attempt.

55 Pa. Code § 181.3 (emphasis added). Lyons’ testimony together with Dr. Vazquez’
letter establish Lyons’ attempt to verify his medical expenses for his undisputed
serious health problems.10

does not include Lyons’ medical expenses for nurse home visits, catheter drainage, monthly blood
work, medications, doctor visits and hospital stays or his health insurance premiums, all of which
are necessary for the treatment of his serious medical condition.
       10
          Lyons estimates in his brief and the addendum attached thereto that his monthly medical
expenses, including frequent hospitalizations for dehydration, total approximately $20,000.00.
Lyons’ Br. at 15. However, it is well-established that:
              An appellate court is limited to considering only those facts that have
              been duly certified in the record on appeal. For purposes of appellate
              review, that which is not part of the certified record does not exist.
              Documents attached to a brief as an appendix or reproduced record
                                                8
              Importantly, regardless of the fact that Lyons had been receiving his MA
benefits for 20 years and has serious health problems which has required
extraordinary medical expenses to treat, he was given only approximately 2 weeks’
notice that his MA benefits would be discontinued.                       Moreover, the ALJ
acknowledged the severity of Lyons’ health condition, including “his need for the
nutrient fusions he receives five days a week[,]” and the potential consequences if
MA benefits are discontinued, and even so, the ALJ and the BHA denied Lyons MA
benefits.    R.R. at 20 (emphasis added).            Because the record evidence clearly
demonstrates that Lyons’ minimum medical expenses of $2,500.00 a month exceed
his $1,538.61 monthly spend-down obligation, we hold that Lyons is eligible for
NMP-MA under Section 181.13 of DHS’ Regulations. Accordingly, the ALJ erred in
determining that Lyons did not qualify for MA benefits.
              Based upon the foregoing, the BHA’s Final Order is reversed.


                                           ___________________________
                                           ANNE E. COVEY, Judge




              may not be considered by an appellate court when they are not part of
              the certified record.
B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649, 657-58 (Pa. Cmwlth. 2012) (citations omitted) (quoting
Salameh v. Spossey, 731 A.2d 649, 658 (Pa. Cmwlth. 1999)). Because Lyons’ medical estimates in
his brief and addendum are not part of the certified record, we cannot consider them.
                                                9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daniel E. Lyons,                       :
                        Petitioner     :
                                       :
                   v.                  :
                                       :
Department of Human Services,          :   No. 1815 C.D. 2015
                      Respondent       :


                                     ORDER

            AND NOW, this 25th day of August, 2016, the Bureau of Hearings and
Appeals’ August 17, 2015 Final Administrative Action Order is reversed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
