IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Peer Associates LLC, :

Petitioner :

: No. 394 C.D. 2021

v. :

: Argued: March 9, 2022

Department of Human Services, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: June 16, 2023

Peer Associates LLC (Petitioner) petitions for review of the April 2, 2021 

final administrative adjudication of the Department of Human Services (Department), 

Bureau of Hearings and Appeals (BHA), dismissing for lack of jurisdiction Petitioner’s 

appeal from a local Behavioral Health Managed Care Organization’s (BH-MCO) 

decision to deny Petitioner’s request to be an In-Network Provider in its provider 
2

network. Petitioner also seeks summary relief and judgment pursuant to Pennsylvania 

Rule of Appellate Procedure (Pa. R.A.P.) 1532(b).1 

The question before us concerns whether a managed care plan’s

individualized decision not to add a licensed peer support services provider to its 

provider network constitutes a “decision of the Department” for purposes of Section 

1102(a) of the Act of December 3, 2002, P.L. 1147 (Act 142), which provides as a 

general rule:

A provider that is aggrieved by a decision of the 

[D]epartment regarding the program may request a hearing 

before the [BHA] in accordance with this chapter.

67 Pa. C.S. § 1102(a).

Here, the Department determined that BH-MCO’s decision to deny 

Petitioner’s request to be an In-Network Provider was not a “decision of the 

Department,” and, therefore, BHA lacked jurisdiction to hear Petitioner’s purported 

appeal from said decision. 

I. Factual and Procedural Background

The Medical Assistance (MA) Program is organized under Title XIX of 

the federal Social Security Act and under the Pennsylvania Human Services Code2to 

provide payment for medical services to persons eligible for MA. 42 U.S.C. §§ 1396-

1-1396w-6; Sections 201, 441.1-449.2 of the Human Services Code, 62 P.S. §§ 201, 

441-449.2. One of the covered benefits under the MA Program is behavioral health 

1 Pa. R.A.P. 1532(b) provides: “Summary relief. – Any time after the filing of a petition for 

review in an appellate or original jurisdiction matter, the court may on application enter judgment if 

the right of the applicant thereto is clear.” Pa. R.A.P. 1532(b).

2 Act of June 13, 1967, P.L. 31, 62 P.S. §§ 101-1503.
3

services. 42 U.S.C. § 1396d(a); 42 CFR § 440.130. Pennsylvania’s MA program’s 

mandatory behavioral health managed care delivery system is known as the 

HealthChoices Behavioral Health Program (HealthChoices BH Program).3 

Petitioner is a licensed peer support provider with a certificate of 

compliance issued by the Department4to provide peer support services from its facility 

located in West Chester, Chester County, Pennsylvania. (Reproduced Record (R.R.) 

at 54a.) Petitioner is enrolled in the MA Program, which makes it eligible to receive 

payment for services rendered to MA beneficiaries. To receive payment for MA 

services, however, Petitioner must contract with a BH-MCO. 

Effective January 1, 2020, the Department, through the Office of Mental 

Health and Substance Abuse Services, entered into an agreement with the County of 

Chester (Chester County) to administer the HealthChoices BH Program 

(HealthChoices Agreement).5 The HealthChoices Agreement incorporated by 

reference the “HealthChoices Behavioral Health Program, Program Standards and 

Requirements” (PSR), which was issued by the Department’s Office of Mental Health 

3 The MA Program has two service delivery systems: a fee-for-service system and a 

mandatory managed care system. The HealthChoices BH Program is a mandatory managed care 

system. Under a managed care system, a MCO, under contract with the Department, is paid on a 

monthly, fixed-fee basis per enrollee. MA Program funds go directly to the MCO and the MCO pays 

the provider pursuant to the terms of an agreement between the MCO and the provider. See Hospital 

& Healthsystem Association of Pennsylvania v. Department of Public Welfare, 888 A.2d 601, 603-

04 (Pa. 2005); Department of Public Welfare v. Eiseman, 125 A.3d 19, 30 (Pa. 2015).

4 The Department is the agency of the Commonwealth responsible for administering the MA 

Program, including receiving and using federal funds, promulgating regulations, and establishing and 

enforcing standards. 62 P.S. § 201(1) and (2).

5 The HealthChoices Agreement is attached as an appendix to Petitioner’s Brief. The PSR is 

available on the Department’s website at https://www.dhs.pa.gov/HealthChoices/HCServices/Pages/BehavioralHealth-Publications.aspx. (Last visited June 15, 2023).
4

and Substance Abuse Services and provides the standards and requirements of the 

HealthChoices BH Program. 

The HealthChoices Agreement authorized Chester County, as the 

Department’s “Primary Contractor,” to contract with a BH-MCO (as a subcontractor) 

to provide the behavioral health services required under the HealthChoices Agreement. 

Pursuant to the HealthChoices Agreement, Chester County subcontracted with a nonprofit behavioral health managed care organization, Community Care Behavioral 

Health Organization (CCBH), as the County’s BH-MCO subcontractor to provide 

behavioral health services, including the development of a network of peer support 

providers (Provider Network). CCBH, in turn, contracts with behavioral healthcare 

professionals (providers) to provide care for its members with behavioral disabilities 

and pursuant to these contracts, CCBH agrees to pay the providers negotiated rates for 

medical services rendered to MA recipients. The HealthChoices Agreement does not 

require CCBH to enter into contracts with any particular healthcare providers. It does 

require Chester County and CCBH to demonstrate to the Department that they created 

and maintained the network with “[s]ufficient Provider capacity and expertise for all 

covered services, for timely implementation of services, and for reasonable choice by 

Members of a Provider(s) within each level of care.” See PSR, § II-5(D)(1)(a). 

On April 10 and 11, 2020, Petitioner submitted a request to CCBH to 

participate as a Network Provider6in CCBH’s Chester County network of peer support 

6 Becoming a Network Provider entitles a healthcare provider to receive MA funding “directly 

or indirectly to order, refer or render covered services as a result of [the Department’s] contract with 

the Primary Contractor or its BH-MCO.” See PSR, p. xii, (definition of “Network Provider”). 

Network Providers also receive the benefit of inclusion in the network provider directory of eligible 

participating providers that is made available to MA beneficiaries and other referring providers. (PSR, 

§ II-5(D)(9).)
5

providers.

7

 (R.R. at 67a-68a.) After several procedural steps, on May 11, 2020, CCBH 

sent a letter to Petitioner denying its request to participate as a Network Provider on 

the basis that “the proposed expansion [of peer support services] is not indicated as a 

network need in the Chester network,” and “there is sufficient access to peer support 

services in Chester County.” (R.R. at 71a.)8 The May 11, 2020 denial letter informed 

Petitioner of its right to request reconsideration, and upon review of Petitioner’s 

subsequent request for reconsideration, CCBH maintained its position that there was 

sufficient access to peer support services in Chester County. Id. at 76a.

On August 7, 2020, Petitioner initiated a provider appeal to the BHA by 

filing a request for hearing pursuant to 55 Pa. Code § 41.31(a).

9

 Among other things, 

Petitioner asserted that it had satisfied all lawful requirements to enroll as a Network 

Provider of peer support services in the MA HealthChoices BH Program in Chester 

County and that the Department, acting through CCBH, unlawfully denied its 

enrollment request based on an asserted lack of need for peer support services. 

On November 2, 2020, the Department filed a motion to dismiss 

Petitioner’s appeal for “lack of jurisdiction” on the grounds that CCBH’s denial of 

7 Under Section 2121(f) of The Insurance Company Law of 1921 (Quality Health Care 

Accountability and Protection Act), managed care plans choose the providers in their networks. See

Section 2102 of the Quality Health Care Accountability and Protection Act, Act of May 17, 1921, 

P.L. 682, as amended, added by the Act of June 17, 1998, P.L. 464, 40 P.S. § 991.2102 (“‘Provider 

network’ [consists of] [t]he health care providers designated by a managed care plan to provide health 

care services.”). 

8 Pursuant to Section 2121(f) of the Quality Health Care Accountability and Protection Act, 

40 P.S. § 991.2121(f), if a managed care plan denies enrollment or renewal of credentials to a health 

care provider, the managed care plan shall provide the health care provider with written notice of the 

decision. The notice shall include a clear rationale for the decision. 

 

9

55 Pa. Code § 41.31(a) provides: “[a] provider that is aggrieved by an agency action may 

appeal and obtain review of that action by the Department by filing a request for hearing in accordance 

with this chapter.”
6

Petitioner’s request was not an “agency action” under 55 Pa. Code § 41.31(a), and 

further, Petitioner was “not aggrieved” by the denial. (R.R. at 79a-82a.) Petitioner 

filed a motion in opposition to the Department’s motion to dismiss, and a motion for 

summary judgment, asserting that there was no genuine issue of fact that it had satisfied 

all lawful regulatory prerequisites to enroll as a Network Provider in the MA 

HealthChoices BH Program. 

On March 1, 2021, a BHA Administrative Law Judge (ALJ) issued an 

order and findings denying the Department’s motion to dismiss and ruling that BHA 

had jurisdiction over Petitioner’s appeal. (R.R. at 175a-79a.) The ALJ determined that 

CCBH’s denial of Petitioner’s Network Provider request constituted an “agency 

action” and that Petitioner was aggrieved by the decision. Id. The ALJ reasoned that 

the Department is the sole agency in the Commonwealth with authority to administer 

the MA Program; that in denying Petitioner’s request, CCBH was acting as a contractor

or subcontractor of the Department in administering the HealthChoices BH Program

on behalf of the Department; and that the Department retained oversight over CCBH, 

specifically regarding the sufficiency and capacity of providers for covered services. 

Id. The ALJ further concluded that Petitioner was aggrieved by the denial of its 

Network Provider enrollment request because the Department licensed and enrolled 

Petitioner to be a MA provider of peer support services to MA members and denial of 

the request limited Petitioner’s access to MA members and MA payments for services 

rendered. Id.

On March 11, 2021, the Department filed a motion for reconsideration, 

requesting that the Department’s Secretary reconsider and reverse the BHA’s March 

11, 2021 order. Petitioner filed a brief in opposition thereto on March 23, 2021. On 

March 25, 2021, the Secretary issued an order with no findings granting the 
7

Department’s motion for reconsideration, reversing the March 11, 2021 Order “as BHA 

does not have jurisdiction in this matter,” and remanding to BHA to issue an 

“appropriate final order.” (Secretary’s March 25, 2021 Order.) 

In accord with the Secretary’s March 25, 2021 Order, the ALJ entered an 

order on April 2, 2021, dismissing Petitioner’s appeal for lack of jurisdiction, without 

ruling on Petitioner’s pending motion for summary judgment. On that same date, BHA

entered a final administrative order affirming the ALJ’s dismissal of the appeal. 

Petitioner thereafter filed this petition for review in this Court, raising two 

issues: (1) whether the BHA has jurisdiction over a BH-MCO’s decision to deny the 

MA provider’s request to enroll as a Network Provider in the HealthChoices BH 

Program; and (2) whether Petitioner is entitled to summary relief and judgment as a 

matter of law under Pa. R.A.P. 1532(b).10

II. Discussion

BHA is the Department’s administrative tribunal. The General Assembly 

has limited BHA’s jurisdiction to appeals of “decisions of the Department.” Section 

1102(a) of Act 142 provides:

A provider that is aggrieved by a decision of the 

[D]epartment regarding the [MA] [P]rogram may request 

a hearing before the [BHA] in accordance with this chapter.

67 Pa. C.S. § 1102(a) (emphasis added).

A “hearing” before the BHA is defined in Act 142 as:

10 This Court “may interfere in an agency decision only where there has been a manifest and 

flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties and functions.” 

Chartiers Community Mental Health & Retardation Center, Inc. v. Department of Public Welfare, 

696 A.2d 244, 246-47 (Pa. Cmwlth. 1997).
8

A proceeding commenced in accordance with this chapter by 

a provider concerning an adjudication of the department 

relating to the administration of the [MA] [P]rogram. 

The term includes an action relating to a provider’s 

enrollment in, participation in, claims for payment or 

damages under or penalties imposed under the [MA] 

[P]rogram.

67 Pa. C.S. § 1101 (emphasis added).

The Department has promulgated regulations establishing rules of 

procedure necessary to carry out the provisions of Act 142. The regulations relating to 

MA provider appeals are found at 55 Pa. Code §§ 41.1-41.214. Section 41.31 of the 

Department’s regulations provides:

(a) A provider that is aggrieved by an agency action may 

appeal and obtain review of that action by the Bureau by 

filing a request for hearing in accordance with this chapter.

(b) A provider is aggrieved by an agency action if the action 

adversely affects the personal or property rights, privileges, 

immunities, duties, liabilities or obligations of the provider.

55 Pa. Code § 41.31 (emphasis added).

Section 41.2 (definitions) of the Department’s regulations defines a 

provider appeal as a “proceeding to obtain review of an agency action that is 

commenced by a provider by filing a request for hearing.” 55 Pa. Code § 41.3 

(emphasis added). “Agency action” is defined in the same section as 

(i) An adjudicative action of the Department or a 

program office that relates to the administration of the 

MA Program.

(ii) The term includes the actions identified in §§ 1101.84(a)-

-(c) and 1187.141(a) (relating to provider right of appeal; and 
9

nursing facility’s right to appeal and to a hearing) and other 

actions relating to a provider’s enrollment in, 

participation in, claims for payment or damages under or 

penalties imposed under the MA Program.

55 Pa. Code § 41.3 (emphasis added).

Therefore, pursuant to Act 142 and its accompanying regulations, a 

provider who is aggrieved by an adjudication/decision of the Department relating to 

the administration of the MA Program may request a hearing before the BHA. 

Here, Petitioner requested a hearing before the BHA from CCBH’s denial 

of Petitioner’s request to be a member of its Provider Network. The question we must 

answer is whether the decision of CCBH: (1) was a decision of the Department, (2) 

relating to Petitioner’s enrollment in, participation in, claims for payment or damages 

under or penalties imposed under the MA Program.

We turn first to Petitioner’s contention that CCBH’s decision not to enroll 

Petitioner in its Provider Network should be construed to be a decision of the 

Department. Initially, we note that the PSR specifically provides that “[the 

Department’s] Bureau of Hearings and Appeals is not an appropriate forum and 

shall not be used by [p]roviders to appeal decisions of the Primary Contractor or 

its BH-MCO.” (PSR, § II-4(F)(4)) (emphasis added). We further note that the 

HealthChoices Agreement states that Chester County and CCBH “are independent 

contracting parties” and “are not and may not hold themselves out as employees, 

[s]ubcontractors, servants, agents or representatives of the Department.” 

(HealthChoices Agreement § 2.1(A)) (emphasis added). 

Petitioner argues that, despite the notice in the PFR that BHA is not the 

appropriate forum to appeal decisions of a BH-MCO, and disclaimer of any agency 

relationship, an agency relationship nevertheless existed such that the decision of 

CCBH to deny Petitioner membership in CCBH’s Provider Network was the equivalent 
10

of a decision “of the Department.” In support, Petitioner argues that courts look beyond 

the labels in contracts to the reality of the relationship between the parties. Feller v. 

New Amsterdam Casualty Co., 70 A.2d 299, 302 (Pa. 1950). If the principal maintains 

authority to direct how the work is performed, the relationship is that of master-servant, 

not independent contractor. Id.

Petitioner contends that under the HealthChoices Agreement and the PSR, 

the Department maintains full authority to direct how Chester County and CCBH 

administer the MA HealthChoices BH Program. Relevant to this appeal, Petitioner 

points to several provisions of the PSR which specify that Chester County and CCBH 

must create a provider network, the scope and features of the network, that Chester 

County and CCBH must submit documentation to the Department demonstrating 

compliance with these network requirements at least annually, the minimum 

credentialing criteria a healthcare provider must satisfy to participate as a Network 

Provider, and the mandatory system that CCBH must create to hear and adjudicate 

provider disputes. (PSR, §§ II-5(D), (E), II4(F)(4).) Petitioner also points to provisions 

of the HealthChoices Agreement which provide that the Department “shall conduct 

OnSite Reviews of the Primary Contractor and its BH-MCO to assess the Primary 

Contractor’s compliance with program requirements as defined in the PSR and in this

Agreement that are critical to the Primary Contractor’s ongoing participation in the 

HealthChoices BH Program.” (HealthChoices Agreement, § 5.1.) Under Section 14 

of the HealthChoices Agreement, the Department reserves authority to compel Chester 

County’s and CCBH’s compliance with the Agreement and the PSR by imposing 

“sanctions or liquidated damages for non-compliance with any requirement under this 

Agreement.” (HealthChoices Agreement, § 14.1.)
11

Petitioner maintains that these provisions in the PSR and HealthChoices 

Agreement demonstrate that the Department controls every aspect of CCBH’s 

administration of the HealthChoices BH Program. Therefore, Petitioner argues, the 

Department’s assertion in Section 2.1(A) of the HealthChoices Agreement of an 

independent contractor relationship is belied. Petitioner submits that, for these reasons, 

this Court should hold that CCBH was acting as the agent and servant of the 

Department, not an independent contractor, in denying Petitioner’s request to enroll as 

a Network Provider in CCBH’s Provider Network, and that Petitioner had the right to 

seek review in the BHA under 67 Pa. C.S. § 1102.

The Pennsylvania Supreme Court has held that “statutes purporting to 

limit a court’s jurisdiction must be strictly construed[.]” Domus, Inc. v. Signature 

Building Systems of Pennsylvania, LLC, 252 A.3d 628 (Pa. 2021), (quoting In re Jones 

& Laughlin Steel Corp., 412 A.2d 1099, 1102 (Pa. 1980)). Sections 1101 and 1102 

limit BHA’s jurisdiction to a certain class (MA providers) and to certain decisions (the 

Department’s decisions). Because Sections 1101 and 1102 limit BHA’s jurisdiction, 

Sections 1101 and 1102 must be strictly construed. Strict construction weighs against 

construing CCBH’s decision not to include Petitioner in its Provider Network as a 

“decision of the Department” for purposes of BHA jurisdiction. The phrase “decision 

of the Department” is unambiguous. The unambiguous words of a statute cannot be 

ignored in the effort to implement the spirit of the law. Bayada Nurses, Inc. v. 

Department of Labor & Industry, 8 A.3d 866, 880-81 (Pa. 2010) (citations omitted); 

see also, 1 Pa. C.S. § 1921(b) (“When the words of a statute are clear and free from all 

ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its 

spirit.”). The phrase “decisions of the Department” means decisions made by, or 

directed by, the Department.
12

In Chester Water Authority v. Pennsylvania Department of Community & 

Economic Development, 249 A.3d 1106, 1111-114 (Pa. 2021), the Supreme Court 

determined that the plain language of the deliberative process exemption under the 

Right-to-Know Law did not extend the exemption to consultants contracted with an 

agency. The deliberative process privilege excluded from disclosure the “internal, 

predecisional deliberations of an agency, its members, employees or officials or 

predecisional deliberations between agency members, employees or officials and 

members, employees or officials of another agency . . . .” Id. at 1109 (citing 65 P.S. 

§ 67.708(b)(10)(i) (emphasis added)).

In determining that the exemption did not extend to consultants contracted

with the department, the Supreme Court noted that “the statutory provision facially 

does not apply to communications with outside consultants.” Id. at 1113. The phrase 

“internal deliberations of an agency” means what it says – within the agency. Id. The 

Supreme Court continued that, if the General Assembly wanted to include outside 

consultants, “it would have been a straightforward matter, in Section 708(b)(10)(i)(A), 

to have listed outside consultants along with ‘members, employees or officials,’ but the 

fact of the matter is that the General Assembly did not do so.” Id.

Like the statute in Chester Water Authority, Section 1102(a) does not 

facially apply to decisions beyond those made by, or directed by, the Department. 

Based on the plain language of the statute, the phrase “decision of the Department” 

means decisions of the Department. Providers do not directly contract with the 

Department. The decision here not to enroll Petitioner in CCBH’s Provider Network 

was not made by the Department. It was made by CCBH. CCBH is not the 
13

Department. It is not a part of the Department’s Bureau of Managed Care Operations11

or one of the seven program offices

12 within the Department, or in any way affiliated 

with the Department or any of its program offices. The Department is an agency of the 

Commonwealth. The term “Department” as used in Act 142 means “the Department 

of Human Services of this Commonwealth.” 67 Pa. C.S. § 101. If the General 

Assembly wanted BHA’s jurisdiction to extend to decisions of the managed care plans 

or other outside entities, then it would have been a straightforward matter to have listed 

those managed care plans or to write “decisions of the Department or entities which 

have contracted with the Department.” Consequently, based on the plain language of 

the statute, the decision of the CCBH to deny membership to Petitioner in its Provider 

Network cannot be attributed to the Department to confer subject matter jurisdiction 

on BHA. 

We must also reject Petitioner’s contention that CCBH was acting as the 

Department’s “agent and servant” when it denied Petitioner’s Network Provider 

enrollment request and, therefore, that the denial should be attributed to the 

Department. 

“The basic elements of agency are the manifestation by the principal that 

the agent shall act for him, the agent’s acceptance of the undertaking and the 

understanding of the parties that the principal is to be in control of the undertaking.” 

Scott v. Purcell, 415 A.2d 56, 60 (Pa. 1980). See also Logsdon v. Department of 

11

 The Department’s Bureau of Managed Care Operations is responsible for the 

administration and oversight of the HealthChoices BH Program.

12 The seven program offices of the Department include: Office of Child Development and 

Early Learning; Office of Children, Youth and Families; Office of Development Programs; Office of 

Income Maintenance; Office of Long-Term Living; Office of Medical Assistance Programs; and 

Office of Mental Health and Substance Abuse Services. https://www.dhs.pa.gov/contact/DHSOffices/Pages/DHS-Offices.aspx (last visited June 15, 2023).
14

Education, 671 A.2d 302, 306 (Pa. Cmwlth. 1996). The burden of establishing agency 

rests upon the party asserting it. Scott, 415 A.2d at 60, n.8. 

Petitioner contends that the Department and CCBH manifested their 

intention in the HealthChoices Agreement and PSR that CCBH would act on the 

Department’s behalf in all matters concerning CCBH’s administration of the 

HealthChoices BH Program. Thus, argues Petitioner, the elements of a common law 

agency have been met. We must disagree.

At the outset, we note that Petitioner’s argument is laden with the 

implication that CCBH’s denial of its enrollment request was part of CCBH’s 

administration of the HealthChoices BH Program. However, CCBH’s denial was not 

based on any of the provisions of the HealthChoices Agreement or PSR. As noted, the 

HealthChoices Agreement and PSR required CCBH to create a provider network and 

they set forth certain credentialing procedures and requirements. For example, 

provider networks are required to have sufficient provider capacity and expertise for 

all covered services. They are required to represent the cultural and ethnic diversity, 

clinical expertise, and provide timely access to covered services. The PSR also 

required CCBH to form contracts with its providers and include specific provisions,

including records maintenance, performance standards, requirements for referrals, and 

compliance with state and federal laws. The PSR required all network providers to 

have an applicable license or certification, verification of enrollment in good standing 

with Medicaid, verification of an active MA Provider agreement, evidence of 

malpractice insurance, and disclosure of past or pending lawsuits. (PSR, § II-5(D), 

(E).)

Thus, although the Department clearly maintained management and 

oversight responsibilities over the criteria for CCBH’s required Provider Network, we 
15

are not convinced that it has concerned itself with who was not enrolled in the provider 

network or why. The provisions of the HealthChoices Agreement and PSR relied upon 

by Petitioner relate to provider competence and qualifications and the adequacy of the 

provider network. The decision not to enroll a provider in a provider network falls 

outside the range of matters over which the PSR and HealthChoices Agreement have 

given control and oversight authority to the Department. 

Also, factually, there is no evidence that CCBH’s individualized decisions 

to deny enrollment in its Provider Network were subject to the Department’s control. 

Nothing in the record establishes that the Department regulated CCBH’s daily 

operations or that CCBH sought the Department’s approval before deciding not to add 

a provider to its Provider Network. In this instance, CCBH’s decision not to enroll 

Petitioner as a Network Provider was made without receiving any input (per the PSR 

or HealthChoices Agreement or otherwise) from the Department. 

Furthermore, individualized provider network decisions are not one of the 

obligations of the Department under federal law governing MA managed care. Federal 

law governing MA managed care does require the Department to enforce global 

network adequacy standards. 42 C.F.R. § 438.68(a). This generally means the 

Department must ensure the adequacy of varying provider types by geographic area. 

42 C.F.R. § 438.68(b)(1), (b)(2) and (b)(3). The federal law sets forth specific 

considerations that the Department must examine for those global adequacy issues. 42 

C.F.R. § 438.68(c). The Department must also ensure that the managed care plan has 

written policies for the selection and retention of network providers. 42 C.F.R. §

438.214(a). However, nothing in the federal law governing MA managed care 

requires, or authorizes for that matter, the Department to monitor individualized 

decisions to exclude a particular provider or to oversee the decisions of the plans to 
16

choose Provider A over Provider B to meet the plan’s needs. To the contrary, federal 

law leaves those individualized decisions to the managed care plan and does not 

require the plan to contract beyond its needs. Section 438.12 of the federal Medicaid 

regulations, 42 C.F.R. § 438.12(a), provides that “[i]f an MCO . . . declines to include 

individual or groups of providers in its provider network, it must give the affected 

providers written notice of the reason for its decision.” Subsection (b) provides further 

that “Paragraph (a) of this section may not be construed to . . . [r]equire the MCO . . . 

to contract with providers beyond the number necessary to meet the needs of its 

enrollees.” 42 C.F.R. § 438.12(b). 

Similarly, the Quality Health Care Accountability and Protection Act, 40 

P.S. § 991.2102, which is part of The Pennsylvania Insurance Company Law of 1921, 

authorizes managed care plans, such as CCBH, to choose the providers in their 

networks. See Section 2102 of the Quality Health Care Accountability and Protection 

Act, 40 P.S. § 991.2102 (“‘Provider network’ [consists of] [t]he health care providers 

designated by a managed care plan to provide health care services.”). Under Section 

2121(f) of the Quality Health Care Accountability and Protection Act, if a managed 

care plan denies enrollment or renewal of credentials to a health care provider, the 

managed care plan shall provide the health care provider with written notice of the 

decision. The notice shall include a clear rationale for the decision.13 40 P.S. § 

991.2121(f). The Quality Health Care Accountability and Protection Act says nothing 

about extending jurisdiction over such denial to the Department’s BHA. 

13 Here, the rejection letter from CCBH dated May 11, 2020, states, “we will not be pursuing 

a network inclusion contract at this time for Peer Support Services, as this proposed expansion is not 

indicated as a network need in the Chester network.” (R.R. at 71a.) This letter plainly provides a 

clear rationale for CCBH’s decision not to contract with Petitioner.
17

In keeping with these provisions of the Quality Health Care 

Accountability and Protection Act, the PSR specifically provided that “the 

Department’s [BHA] is not an appropriate forum and shall not be used by 

Providers to appeal decisions of the Primary Contractor or its BH-MCO.” (PSR,

§ II-4(F)(4)) (emphasis added).) 

Accordingly, based on the foregoing, we read the HealthChoices 

Agreement and PSR and the relevant state and federal statutes, as reposing in CCBH

the sole authority to identify and choose providers for its Provider Network. CCBH 

did not require approval by the Department to make that decision but instead was solely 

responsible for that decision. There is no basis, therefore, to conclude that CCBH was 

acting as the agent for the Department when making the decision not to enroll Petitioner 

in its Provider Network. That decision was personal to CCBH and there is no support 

that these types of decisions may be dictated by anyone else, including the 

Department.

14

 

To summarize, the HealthChoices Agreement and PSR create a system 

whereby the Department retains oversight and control over some aspects of CCBH’s 

operations, and to that extent an agency relationship undoubtedly existed. However,

we find lacking the requisite level of control over CCBH’s decision not to enroll a 

particular provider in its Provider Network so as to deem that decision one of the 

Department. 

Because we find CCBH’s decision not to enroll Petitioner in its Provider 

Network was not a decision “of the Department” for purposes of Section 1102(a) of

14 Indeed, the results of our research suggest that disputes concerning provider network 

exclusions are between the managed care organization and the excluded health care provider. See,

e.g., Snodgrass-King Pediatric Dental Associates, P.C. v. DentaQuest USA Insurance Co., Inc., 79 

F. Supp. 3d 753 (M.D. Tenn. 2015); Heartland Surgical Specialty Hosp. v. Midwest Division, Inc.

d/b/a HCA Midwest Division, 527 F. Supp. 2d 1257 (D. Kan. 2007). 
18

Act 142, (an essential element of Petitioner’s claim), we need not reach the question of 

whether Petitioner was “aggrieved” within the meaning of that provision.15

The order of the BHA is affirmed. Petitioner’s application for relief and 

judgment pursuant to Pa. R.A.P. 1532(b) is denied.16

________________________________

PATRICIA A. McCULLOUGH, Judge

15 The Dissent interprets 55 Pa. Code § 41.3 too broadly. CCBH’s decision not to enroll Peer 

Associates in its Provider Network was not action related to a provider’s participation in the MA 

Program. There is no question that the Department approved Peer Associates to participate in the 

MA Program. 

16 This is an appeal from the order of the Department dismissing Peer Associate’s appeal for 

lack of jurisdiction. Contrary to the position of the Dissent, whether the PSR is an unpromulgated 

regulation and, therefore, a nullity under the Commonwealth Documents Law is not properly before 

us. It is beyond the scope of what is being appealed. It should have been brought as a separate 

declaratory judgment action, not bootstrapped onto an appeal. Petitioner has identified no case, and 

we are aware of none, that utilized Appellate Rule 1532 to grant summary relief on an issue 

completely unrelated to the underlying order appealed from. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Peer Associates LLC, :

Petitioner :

: No. 394 CD 2021

v. :

:

Department of Human Services, :

Respondent :

ORDER

AND NOW, this 16th day of June, 2023, the April 2, 2021 

administrative adjudication of the Department of Human Services, Bureau of 

Hearings and Appeals, is hereby AFFIRMED. 

Peer Associates LLC’s application for relief and judgment pursuant to 

Pennsylvania Rule of Appellate Procedure 1532(b) is DENIED.

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Peer Associates LLC, :

Petitioner :

: No. 394 C.D. 2021

v. :

: Argued: March 9, 2022

Department of Human Services, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

CONCURRING OPINION 

BY JUDGE DUMAS FILED: June 16, 2023

I concur with the majority. Accepting the dissent’s premise that the 

May 11, 2020 letter of the Community Care Behavioral Health Organization (CCBH)

was (1) a decision of the Department of Human Services (Department) that (2) 

aggrieved Peer Associates LLC (Petitioner), then it would appear that Petitioner

untimely appealed. See Julia Ribaudo Senior Servs. v. Dep’t of Pub. Welfare, 969 

A.2d 1184, 1192 (Pa. 2009) (holding that because the petitioner “neglected to appeal 

within the 33-day period, its appeal was untimely” (footnote omitted)).

Section 1102 of the Act of December 3, 2002, P.L. 1147 (Act 142), states 

that a “provider that is aggrieved by a decision of the [D]epartment” “must file a 

request for a hearing with” the Department’s Bureau of Hearings and Appeals (BHA)

“within 33 days” of the mailed notice of the Department’s decision. 67 Pa.C.S. § 
LD -2

1102(a)-(b); see also 55 Pa. Code §§ 41.6, 41.32. Assuming, as the dissent posits, 

that CCBH’s May 11, 2020 letter was a decision of the Department, then Petitioner 

had until Monday, June 15, 2020, to appeal to the Bureau. See 67 Pa.C.S. § 1102(b); 

see also 1 Pa.C.S. § 1908 (explaining that if “the last day of any such period shall fall 

on Saturday . . . such day shall be omitted from the computation”). However, 

Petitioner did not appeal the putative decision of the Department within 33 days to 

the Bureau. 

Petitioner instead submitted his appeal to CCBH. Letter from Pet’r to 

CCBH (May 21, 2020) (via email). CCBH denied Petitioner’s appeal on July 16, 

2020, and the Bureau timestamped Petitioner’s appeal from that denial on August 

10, 2020. Letter from CCBH to Pet’r (July 16, 2020) (via email); Letter from Pet’r 

to Bureau (Aug. 10, 2020). Therefore, if the dissent is correct, and the Bureau had

jurisdiction over the merits of the appeal, the record seemingly establishes

Petitioner’s failure to timely appeal from the May 11, 2020 decision of the 

Department. With that observation, I respectfully concur. 

 

LORI A. DUMAS, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Peer Associates LLC, :

Petitioner :

 :

v. : No. 394 C.D. 2021

 : Argued: March 9, 2022

Department of Human Services, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

DISSENTING OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: June 16, 2023

The Pennsylvania Department of Human Services (Department), which is 

solely responsible for the use of federal funds for the Pennsylvania Medical 

Assistance (MA) Program, contracted to a private company its responsibility to 

approve providers of peer support services in the MA mandatory behavioral health 

managed care delivery system. This contract should not insulate the Department

from responsibility when a Department-licensed provider is denied approval to 

provide these services. I, therefore, agree with the Administrative Law Judge’s 

(ALJ) thoughtful conclusions, based on the evidence, that the denial of Peer 

Associates LLC’s (Petitioner) request to become an In-Network Provider of peer 

support services in the Pennsylvania MA Program’s mandatory behavioral health 
RCJ -2

managed care delivery system in Chester County (County) was an agency action 

from which Petitioner was aggrieved. Moreover, I am further persuaded by 

Petitioner’s arguments that the Department’s “HealthChoices Behavioral Health 

Program Standards and Requirements” (PSR) is an unpromulgated regulation and, 

therefore, a nullity under the Commonwealth Documents Law1(Documents Law). 

Accordingly, I must, respectfully, dissent from the Majority’s affirming the 

dismissal of Petitioner’s appeal by the Department’s Bureau of Hearings and 

Appeals (BHA).

The Department is solely responsible for the use of Federal funds that have 

been dedicated to the financing, implementation, and administration of the MA 

Program in Pennsylvania. Section 201 of the Human Services Code,2 62 P.S. § 201. 

As part of these responsibilities, the Department, acting through its Office of 

Mental Health and Substance Abuse Services (OMHSAS), contracted with County

to administer the MA Program’s HealthChoices Behavioral Health Program 

(HCBH) in the County. County subcontracted with Community Care 

Behavioral Health Organization (CCBH) to provide behavioral health services for 

County’s MA Program participants. Petitioner applied to CCBH to be an InNetwork Provider for peer support services, as the Department has licensed and 

enrolled Petitioner to provide such services to MA Program participants. However, 

CCBH denied Petitioner’s application because, according to CCBH, there was no 

need for expansion of such services and there was sufficient access to the peer 

support services. This decision prevented Petitioner from being included in CCBH’s 

directory of providers given to MA Program participants in the County. (ALJ’s 

1 Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102-1602, 45 Pa.C.S. §§ 501-

907.

2 Act of June 13, 1967, P.L. 31, as amended, 62 P.S. § 201.
RCJ -3

March 1, 2021 Order at 4.) Petitioner appealed that decision to the BHA, asserting 

the denial was an agency action from which it was aggrieved. After thorough 

review, the ALJ agreed and denied the Department’s Motion to Dismiss. However, 

on reconsideration, the Secretary of Human Services reversed and remanded for a

final order that dismissed Petitioner’s appeal for lack of jurisdiction. Petitioner 

argues this dismissal was in error and I agree. 

An agency action, under the Department’s regulations, is “[a]n adjudicative 

action of the Department or a program office that relates to the administration of 

the MA Program,” and includes “actions relating to a provider’s enrollment in 

[and] participation in . . . the MA Program.” 55 Pa. Code § 41.3 (emphasis added).

Under the contract with County, the Department retained oversight over County’s 

and CCBH’s compliance with MA Program requirements, which included 

whether CCBH was maintaining “sufficient Provider capacity and expertise for 

all covered services” and “reasonable choice by [MA Program participants] of [] 

Provider(s) within each level of care.” (ALJ’s March 1, 2021 Order at 3 (emphasis 

added).) The determination here was an “action[] relating to a provider’s . . . 

participation in . . . the MA Program.” 55 Pa. Code § 41.3. Moreover, I believe the 

Department’s obligation to oversee the implementation of the HCBH in the County 

to ensure sufficient capacity of and reasonable choice in providers for MA Program 

participants renders decisions related thereto agency actions made on behalf of the 

Department or one of its program offices, here, OMHSAS. This is consistent with 

the Department’s responsibility as the sole administrator of the MA Program in 

Pennsylvania. Holding otherwise allows the Department to, essentially, deputize a 

private organization to make decisions relating to the administration of the MA 

Program and then insulate those decisions from review by claiming that they were
RCJ -4

not the Department’s decisions – a result I believe is not consistent with the 

Department’s obligations. 

Having concluded the denial of Petitioner’s request was an agency action, as 

the ALJ initially determined, I also agree with the ALJ’s finding that Petitioner was 

aggrieved by that agency action. Under the Department’s regulations, “[a] provider 

is aggrieved by an agency action if the action adversely affects the personal or 

property rights, privileges, immunities, duties, liabilities or obligations of the 

provider.” 55 Pa. Code § 41.31(b) (emphasis added). Here, Petitioner is licensed 

by the Department to provide peer support services through the MA Program. By 

virtue of that license, Petitioner has the privilege of providing peer support services 

to MA Program participants. The denial of Petitioner’s request to be an In-Network 

Provider adversely affects its privilege as a licensed peer support service provider 

by limiting its access to MA Program participants in the County and to payment for 

services rendered. Accordingly, Petitioner was aggrieved by an agency action,

which allowed it to file an appeal and request a hearing pursuant to the Department’s 

regulations. See 55 Pa. Code § 41.31(a) (“A provider that is aggrieved by an agency 

action may appeal and obtain review of that action by the [BHA] by filing a request 

for hearing in accordance with this chapter.”).

Additionally, I find persuasive Petitioner’s argument that the PSR, upon

which the Department relies to argue the BHA has no jurisdiction as such 

jurisdiction is specifically disclaimed in Section II-4(F)(4) of the PSR,

3 created 

binding norms upon MA providers and, therefore, had to be formally promulgated 

pursuant to the Documents Law. Brinson v. Dep’t of Pub. Welfare, 641 A.2d 1246, 

3 This provision states the BHA “is not an appropriate forum and shall not be used by 

Providers to appeal decisions of the Primary Contractor [(here, the County)] or its [Behavioral 

Health Managed Care Organization (here, CCBH)].” (Petitioner’s Brief Appendix at 096.)
RCJ -5

1248-49 (Pa. Cmwlth. 1994). “The [] Documents Law requires notice and comment 

before the adoption of an agency rule.” Id. at 1248. This process “provides an 

important safeguard for potentially affected parties against the unwise or improper 

exercise of discretionary administrative power.” Id. The PSR did not undergo this 

process and, therefore, I am not convinced of its validity under the Documents Law. 

For these reasons, I would reverse BHA’s Final Administrative Order finding 

that it lacked jurisdiction over Petitioner’s appeal, and remand for BHA to consider 

the merits of the appeal. Therefore, I must respectfully dissent.

__________________________________________

RENÉE COHN JUBELIRER, President Judge

Judge Wallace joins in this dissent.