Autopsies' Open Records Inspections Delayed

The Associated Press reported, on December 29, 2009, in a brief article entitled Pa. judge: Coroner can delay filing autopsy report that "[a] county judge in south-central Pennsylvania says a coroner doesn't have to release the means of death of a 21-year-old man until the end of January."

Cumberland County Coroner Michael Norris refused to release the means of death for Shippensburg University football player Thomas Rainey, a Landisville man who died in an accident in April. Authorities have said the death wasn't suspicious.

WGAL-TV asked President Judge Edgar Bayley to order the coroner to release the information.

Bayley says the Right-to-Know Law that took effect this year doesn't supersede the state Coroner's Act. That law requires the autopsy report to be filed within 30 days of the end of the calendar year in which the deaths occurred.

I have not read the county court's opinion disposing of the issue, because I did not see it posted online yet among available Cumberland County, PA Judicial Opinions.

However, one can read the entire record of the underlying administrative proceedings and the final determination opinion & order that was appealed to the Cumberland County Court, by way of the Pennsylvania Office of Open Records, under its Docket No. AP 2009-0337, which includes that Office's Final Determination Opinion, dated July 24, 2009 (PDF, 10 pages).

That Final Determination recited the arguments of the parties, and noted the conflict in the new, sweeping Right-to-Know Law effective January 1, 2009, versus Pennsylvania Coroner's Laws, including the “Coroner’s Act,” 16 P.S. §§ 1214 and 1231-1260, as contained in the County Code, Act of August 9, 1955, P.L. 323, as amended.

The Pennsylvania Supreme Court's January 22, 2009 opinion in Penn Jersey Advance, Inc., d/b/a Easton Publishing Company v. Grim, 599 Pa. 534 (2009) had made it clear that autopsy reports are official records, and thus are open to the public. But, in a footnote, the effect of the new Right-to-Know Law was left uncertain:

We note that section 708(b)(20) of the recently-effective Act 3 of 2008, the “Right-to-Know Law,” provides an exception from public access for certain records relating to autopsies. See 65 P.S. § 67.708(b)(20).

The Right-to-Know Law further provides that “[i]f the provisions of this act regarding access to records conflict with any other Federal or State law, the provisions of this act shall not apply.” See 65 P.S. § 67.3101.1.

The Right-to-Know Law became effective on January 1, 2009, see 65 P.S. § 67.3104(3), and thus has no application to the events underlying this case..

Accordingly, we express no opinion at this time on the relationship between the Coroner’s Act and the Right-to-Know Law. [Paragraphing applied.]

The question then became, when does an autopsy report become such a public record available for inspection under the new open records law?

This one trial court now says: within 30 days of the end of the calendar year in which the death occurred, pursuant to the Coroner's laws, which prevail over the Right-to-Know law.

That can be a long time for news organizations wanting to report a story. So, stay tuned to see if that decision is appealed further or if legislative change is advocated.

Bowmaster Decides Difficult Medicaid Lien Issues

On December 29, 2009, the Pennsylvania Supreme Court issued an opinion in E.D.B., v. Gerald Clair and Centre Community Hospital, No. 78 MAP 2008, that resolved a conflict in decisions issued by the Superior Court and the Commonwealth Court as to the extent of the statutory lien provided to the Pennsylvania Department of Public Welfare upon private litigation proceeds, for reimbursement to DPW of its expenses advanced to a Medicaid beneficiary.

The Court's ruling vacated the Superior Court’s prior holding in the case, and reinstated the Order of the Court of Common Pleas of Centre County, dated November 6, 2006.

The Supreme Court’s E.D.B. opinion settles the “incompatible--indeed opposite—holdings” reached by the two Pennsylvania lower appellate courts -- the Superior Court in Bowmaster v. Gerald Clair and Centre Community Hospital, 933 A.2d 86 (Pa.Super. 2007) [PDF, 11 pages], and the Commonwealth Court in Shaffer-Doan v. Department of Public Welfare, 960 A.2d 500 (Pa.Cmwlth. 2008) [PDF, 9 pages]. See also: Jordan v. Western Pennsylvania Hospital, ___ A.2d ___, No. 346 C.D. 2008, 2008 WL 4831303 (Pa. Cmwlth. Nov. 10, 2008) [PDF, 12 pages], and Galindo v. Crozier-Keystone Health System, No. 1136 C.D. 2008 (Pa.Cmwlth., January. 8, 2009) [PDF, 9 pages].

The Supreme Court majority sided with the Commonwealth Court's analysis by holding that a minor Medical Assistance (Medicaid) recipient has a cause of action against a third-party tortfeasor to recover, but then reimburse the Department of Public Welfare, for Medical Assistance benefits received during minority.

Specifically, the Court majority interpreted subsection 1409(b) of the Pennsylvania Fraud Abuse and Control Act to supersede, according to the dissent, “centuries’ worth of Pennsylvania jurisprudence which places the responsibility to raise a child upon her parents”. The Court majority favored the public interest of protecting taxpayers and the public treasury in the provision of Medical Assistance benefits, which historically were not considered in common law parental support principles.

Notably, the Supreme Court recognized that the General Assembly had enacted subsection 1409(b), conferring upon the Department of Public Welfare a statutory right to reimbursement from the “entire amount of any settlement” “notwithstanding any other provision of law”, prior to the United States Supreme Court’s monumental decision in Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268, 126 S.Ct. 1752 (2006).

Because the operative facts of E.D.B.’s case arose pre-Ahlborn, the Court leaves the door open for post-Ahlborn challenges to claims for reimbursement by the Department when a beneficiary’s complaint unequivocally fails to assert damages for medical expenses incurred during minority.

Notably, the Department of Public Welfare appears to be proactively preempting the opportunity for any such argument by actively intervening in minors’ actions that do not seek recovery for medical expenses during minority, as contemplated in 62 P.S. 1409(b).

For the Department's general Statement of Policy in this regard see: Implementation of Third-Party Liability Provisions of Act 2008-44, published Saturday, November 1, 2008, 38 Pa.B. 5970, which states "how the Department will interpret and apply sections 1409 and 1409.1 of the Public Welfare Code (code) (62 P. S. §§ 1409 and 1409.1) to tort claims involving MA recipients."

Note: Thanks to Nora E. Gieg, Esq., of Tucker Arensberg, P.C., for contributing to this article, edited and expanded by Neil E. Hendershot, Esq. for this Blog.

Final PA Regs for Home Care Agencies & Registries

On December 12, 2009, Final Regulations were published by the Pennsylvania Department of Health adopting minimum standards for the operation in the Commonwealth of home care agencies and home care registries.

The PA Department of Health, through its Division of Home Health "establishes and enforces quality care and safety standards for Health Care Facilities in Pennsylvania," which includes state licensure, Medicare certification, and complaint investigations regarding Home Health Agencies and, more recently, Home Care Agencies/Home Care Registries.

Governor Rendell had signed Act 69 of 2006 on July 2, 2006. It amended the Pennsylvania Health Care Facilities Act to include Home Care Agencies (HCAs) and Home Care Registries (HCRs). The amended Act required the PA DoH to develop more detailed regulations for its licensure and supervision of HCAs and HCRs. See: PA EE&F Law Blog posting, "PA Licensure of Home Care Agencies" (12/14/06).

Resulting proposed regulations were published on December 9, 2006, for comment. There were many comments received. The final publication of regulations explained in great detail the changes from the proposed regulations in response to the comments, as received both at hearings and through communications.

Revised, final rules were published recently as PA. Bulletin Doc. No. 09-2273, at 39 Pa.B. 6958, as amendments to 28 PA. Code, Chapter 611, "Home Care Agencies and Home Care Registries."

Home care agencies employ, and home care registries refer directly, care workers, who then provide home care services. Such services include assistance with bathing, dressing, feeding, housekeeping, shopping, meal planning/preparation, and transportation, as well as companionship, respite care, and specialized services.

The PA DoH offers an online listing, sorted by counties, of licensed home health care organizations.

This is a summary, provided by the PA DoH, regarding proscribed conduct of an HCA or an HCR, which is required to:

• Conduct criminal background checks and child abuse clearances, if applicable on all staff.
• Conduct TB screens for all direct care workers, contractors and office staff with direct consumer contact.
• Ensure the competency of individuals that provide care by making sure they:
  • Possess a valid nurses license; or
  • Demonstrate competency by passing a competency examination developed by the HCA/HCR; or
  • Have successfully completed at least one of the following:
    • The nurse aide certification and training program sponsored by the Department of Education
    • A home health aide training program meeting the requirements of 42 C.F.R. 484.36
    • A training program developed by an HCA/HCR, or other entity that meets the requirements
    • A training program meeting the training standards imposed on the HCA/HCR by virtue of their participation as a provider in a Medicaid Waiver or other publicly funded program providing home and community based services
    • A program approved by the Department and published in the Pennsylvania Bulletin or posted on the Department's website
• Ensure that current direct care workers employed by the HCA and rostered by the HCR are in compliance with one of these competency requirements by 12/12/2011
• Maintain documentation to show direct care workers have required skills, criminal background checks, child abuse clearances, if required and required TB screening
• Maintain documentation to show that owner(s) and office staff have criminal background checks, child abuse clearances if required; and that owner(s) and office staff with direct consumer contact have required TB screening
• Review direct care worker competency at least annually, more frequently if warranted, to ensure direct care workers have the proper skills to provide the care required by consumers
• Provide information to consumers regarding:
• • Right to be involved in the service planning process
  • Right to receive services with reasonable accommodations
  • Right to receive ten (10) calendar days advance notice of termination of service(s)
  • Less than 10 days written notice if consumer has failed to pay, despite notice and is more than 14 days in arrears; or if health and welfare of the direct care worker is at risk

• Provide information to the consumer concerning:
• • the services that will be provided, the identity of the direct care workers that will provide the service,
    
  • the hours when services will be provided,
    
  • fees and total costs
  • DOH contact information regarding licensure requirements
  • DOH complaint hotline number
  • Telephone number for the local Ombudsman and competency requirements for direct care workers
  • Whether the direct care worker is an employee or independent contractor
  • Tax obligations and employment responsibilities of HCA/HCR and consumer with regard to the direct care workers
  • Documentation that demonstrates personal face-to-face interviews with all direct care workers or independent contractors

In order to prevent financial abuse, two limitations on conduct are significant. An HCA or HCR may not:

• Assume Power of Attorney or guardianship over a consumer utilizing the services of the HCA or HCR, or
  
• Require a consumer to endorse checks over to the HCA or HCR

The answers to frequently asked questions appear to have been updated with some inquiries about the new regulations.

As to the coverage of the new regulations, I note that Section 611.3(b) provides:

Existing home care agencies and home care registries which were home care agencies or home care registries prior to December 12, 2009, shall be required to meet the same standards as home care agencies and home care registries created after December 12, 2009.

As to effectiveness of the new regulations, Section 611.2(c) provides:

An entity operating a home care agency or home care registry, or both, as of December 12, 2009, may continue to operate after December 12, 2009, provided it submits an application for a license to the Department in accordance with instructions published in the Pennsylvania Bulletin and posted on the Department's web site by February 10, 2010.

An entity that has submitted an application for licensure in accordance with the requirements of this subsection may continue to operate the home care agency or home care registry until a date that the Department may refuse the application for licensure. If the Department grants the application for licensure, the home care agency or home care registry may continue operation of the agency or registry in accordance with this chapter. [Emphasis & paragraphing added.]

PA DoH's website indicated: "The Department is now accepting applications for licensure." The application is available online. And, yes, there are filing fees.

Update: 12/15/09 at 2:00 pm:

The Pittsburgh Post-Gazette published an article by Gary Rotstein on December 15, 2009, entitled State looks to license home care agencies:

Hundreds of home care agencies that assist elderly or disabled individuals with basic tasks such as dressing, bathing and housekeeping are about to fall under state scrutiny for the first time.

The Pennsylvania Department of Health published regulations Saturday to provide minimum standards for nonmedical home care agencies. More than 400 home health agencies that employ skilled individuals such as nurses and therapists have already been regulated.

With the backing of the largest association representing home care providers, the Legislature approved a measure in 2006 that extends state oversight to agencies delivering more basic home assistance. Their work also includes such tasks as preparing meals and transporting clients to appointments.

The legislation and new regulations do not apply to self-employed individuals who have a direct relationship with a client. But employers who send multiple direct-care workers into homes will have to pay a $100 licensing fee and ensure their aides have criminal background checks and tuberculosis screenings. * * *

PA Seniors in Online Wii Championship Bowl

In an article dated December 11, 2009, entitled "Wii senior league bowlers to 'spare' no mercy at Tuesday's national championship game", McKnight's Long Term Care News noted that a team of seniors from Charleroi, Pennsylvania, qualified for the finals of the National Senior League^™ (NSL)Wii Bowling Championship.

This first Senior Wii Bowling Bowl will be held on Tuesday, December 15, 2009.

After months of competitive play, the “SAS Strikers” from St. Andrews Estates South in Boca Raton, FL, will face off against the “Riverside Silver” from Riverside Place in Charleroi, PA, in Tuesday's National Senior League Wii Bowling Championship Game.

More than 180 teams from 102 senior living communities in 24 states participated in the competition this year, according to NSL organizers. The regular season lasted from Oct. 19 through Nov. 23, and brought in players of all levels.

The first-ever Wii Bowling tournament wraps up Tuesday with the showdown between the SAS Strikers (ranked third) and the Riverside Silver (ranked 16th). The two teams will compete head-to-head in a live, online championship extravaganza. * * *

Riverside Place, located in Charleroi, Washington County, PA, is connected with the Southwestern Pennsylvania Area Agency on Aging, Inc. SPAAA "develops and manages the overall service system for the older adults of Fayette, Greene, and Washington Counties."

It is one of the many Pennsylvania Senior Centers operating statewide with the cooperation of the Pennsylvania Association of Senior Centers and the Pennsylvania Association of Area Agencies on Aging, with funding from the Pennsylvania Department of Aging.

As the three galleries of photographs demonstrate, SPAAA takes its mission seriously; and it appears to have developed excellence in its Wii Bowlers along the way. See: 2009 Senior Games Photos - Section 1; 2009 Senior Games photos - Section 2; and 2009 Senior Games photos - Section 3.

Wii bowling is one of the simulated sports activities available on Nintendo's Wii game machine. I noted its growing popularity in a prior posting, "Seniors Scoring on Nintendo's Wii Games" (12/26/07).

Recently, Wii bowling activities by seniors have been organized into a structured competition through at least one program -- the National Senior League, which "brings senior and assisted living communities across the country together for fun and competition!"

Presently, NSL's 2009 online statistics and standings list 32 "Conferences" and 180 seniors-only Wii bowling teams. Riverside fielded two teams -- Riverside Silver (with 9 players), and Riverside Gold (with 8). The Silver team made it to the finals.

The use of technology is fantastic. Not only are seniors bowling through software on a game machine that mimics physical equipment & facilities, using remote, hand-held controllers that mirror their body movements, but the NSL competitions between distant teams can be conducted over a webcam, so that competitors can see each other!

This trend is noticed by the media, including National Public Radio, which broadcast a segment on December 3, 2009.

Now, I am virtually rooting for Pennsylvania's Riverside Silver to take the first bowl home!

Update: 12/17/09:

I am virtually crushed. According to NSL News & Notes on December 17, 2009,
"National Championship goes to SAS Strikers" , the "St. Andrews Estates South wins National Wii Bowl title by 20 pins," citing an article dated December 16, 2009, by Brian Hamacher, posted by NBC-Miami on MS-NBC, entitled "Wii Bowling Championship for Boca Geriatrics":

A group of geriatric Wii bowlers from South Florida showed their virtual pin dropping dominance in the first ever National Senior League Championship yesterday.

Metamucil flowed like champagne and naps were aplenty after the St. Andrews South Strikers, from Boca Raton, squeaked past the Riverside Place Silver from Charleroi, PA.

The five Boca seniors bested Riverside by a mere 20 pins, and the thrilling victory had seniors like Duane Webster, 88, feeling like a kid again.

"This Wii bowling has been quite an experience," Webster told the Sun-Sentinel. "They didn't have this Wii bowling when I was young. They had that 16-pound ball...but it was not as accurate as this electronic ball."

A whopping 180 teams from 24 states participated in the five-week tournament. All players have to be over 62 and come from nursing homes, senior centers and senior-living communities. * * *

See also: "South Florida team wins Wii bowling National Senior League championship game" posted December 16, 2009, by McKnight's.

Still, the "silver" second place in the 2009 national challenge among seniors now proudly rests with the Riverside Place Silver.

Filing Fees Increase in PA

On Tuesday, December 8, 2009, various court-related filing fees increased in Pennsylvania, pursuant to Act 46 of 2009 (formerly House Bill 1607), signed into law by the Governor on October 9, 2009.

In his newsletter, Good Deeds, dated October 29, 2009, Ryan Costello, Esq., the Recorder of Deeds of Chester County, PA, noted the fee increases applicable to his row office:

On October 9, 2009, Governor Rendell signed House Bill 1607 amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes.

This bill, in part, mandates an additional $13.50 fee be charged and collected statewide by Recorders of Deeds. These funds will be deposited into the State’s Judicial Computer System Augmentation Account, the Access to Justice Account, and the Criminal Justice Enhancement Account. The monies are specifically designated to fund Constable training and full-time County district attorney salaries.

This $13.50 increase will be collected on documents recorded as deeds, mortgages, mortgage satisfactions, mortgage assignments and releases, and easements. * * *

Websites of Recorders of Deeds statewide now announce the increased filing fees, such as those for Butler County, PA., Lackawanna County, PA, Allegheny County, PA, Dauphin County, PA, and Beaver County, PA, for example.

The fee increases also affect filings made on or after December 8, 2009, in the Registers of Wills Offices in Pennsylvania. The effect was noted by Paula Gowen, the Register of Wills and Clerk of the Orphans' Court in Chester County, PA:

This Act adds additional fees of $13.50 to the current fee of $10.00, for a total of $23.50 for the FIRST filing of Petitions in the Register of Wills and Clerk of Orphans’ Court.

Among the actions that are impacted by this increase in state fees are Petitions for Grant of Letters, Small Estate Petitions, Initial Petitions for Adoptions and Terminations and Guardianships of Minors and Incapacitated [Persons].

Please note that NO PART of this $23.50 fee is allocated to or appropriated by the Register of Wills or Clerk of the Orphans’ Court. The entire amount collected is remitted to the Commonwealth by this office on a monthly basis.

Similar announcements as to the filing fee increases affecting Registers of Wills statewide were posted on their websites, such as those for Susquehanna County, PA, Blair County, PA, and Centre County, PA.

The Supreme Court of Pennsylvania posted online its Financial Regulations, which were published in the Pennsylvania Bulletin on November 14, 2009. Those Regulations set forth all the actions and entities affected by the boosts in fees collected for the Commonwealth.

In that long list of filings subject to new surcharge fees, those relating to the Court of Common Pleas. Orphans' Court Clerk, Register of Wills, are specified as follows:

Except for the provisions of subsection (g) below, for purposes of 42 Pa.C.S. §§ 3733(a.1) and 3733.1, a statutory fee of twelve dollars and twenty-five cents ($12.25) shall be imposed on all petitions for grant of letters, and first filings in petitions concerning adoptions, incompetents' estates, minors' estates, and inter vivos trusts.

Thus, litigants and other users of the Pennsylvania legal system must now bear a boost in filing fees statewide.