IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Luke Bussoletti, : Petitioner :

: v. : No. 1230 C.D. 2019
: Submitted: March 6, 2020 Department of Human Services, : Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE BROBSON FILED: November 5, 2020

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

reasons set forth below, we affirm DHS ’s final administrative action order

.2 I. BACKGROUND Recipient is a 37

- year

- old male with severe intellectual disabilities . Recipient
l ives with his parents in Greene County, Pennsylvania. T he family home is located

on a gravel road that is three miles from the paved roadway

. Since 2005, Recipient receives Medical Assistance (MA) and Home and Community

- Based S ervices (HCBS) under the Consolidated Waiver (Waiver ) program

. The W aiver program is authorized by Section 1915(c) of the Social Security Act, 42 U.S.C. § 1396n(c). It permits states to develop programs to support persons with in tellectual disabilities , who otherwise would be eligible for and placed in an intermediate care facility, to receive services in their home and community and avoid
institutionalization

. ( Certified Record (C.R.) at 292 ; see 42 U.S.C. § 1396n(c)

. )
The Unit ed States Department of Health and Human Services, Centers for Medicare
and Medicaid Services , oversees states’ implementation of this program. ( Id

. ; see 42 U.S.C. § 1396n(c)

. ) O DP administers the Waiver program for DHS

. F or individuals residing in Greene County, GCHS is responsible for authorizing all services and supports that are f unded under the Waiver program. Recipient’s
services , pursuant to his Individual Support Plan (ISP), include transportation
services to the ATF

. To better place this case into conte xt , and because DHS’ s recent decision is based in part on the doctrine of collateral estoppel, we will review the
events that preceded Recipient’s most recent appeal.
A. Recipient’s First Appeal Recipient’s ISP supports services at the A TF for five days per week

. P rior to
March 20 1 1, Pathway s provided Recipient with door

- to

- door transportation services
from his home to the ATF. During a meeting that occurred between Recipient’s family and Pathways on March 8, 2 011, Pathways informed the family that it w as3

discontinuing Recipient’s door

- to

- door transportation services effective
March 21, 2011. Pathways offered to continue to transport Recipient if his parents
could meet its driver at a location approximately fiv e miles from the family home , but his parents did not agree to that modification

. On March 11, 2011 , t he Department of Public Welfare , 1 through GCHS , issued a written notice to Recipient
i nforming him of Pathways’ discontinuance of door

- to

- door transportation services
due to financial reasons

. Recipient app ealed the decision

. ALJ Karen C. Lewis held

a hearing on the matter i n May 2011

. 2
The GCHS Assistant Director of the Intellectual and Developmental Disabilities Department (Assistant Directo r) testified that Path ways, due to wear and

tear on its vehicles, the loss of its four

- wheel drive vehicle, and the inefficiency of using its large passenger van for Recipient’s services , would no longer transport Recipient from his home to the ATF. (C.R. at 22.) The Assistant Director testified that Recipient could choose another provide r, such as “Green [e] Arc , ” which provides transportation to the other adult training facilit ies in Green e County, or Recipient’s parents could take him to the ATF an d they would receive mileage
reimbursement. ( Id. ) The Assistant Director testified that “they no longer have contracts with providers [,] and

. . . a provider can become ‘ unwilling ’ at any time; there is no sanction imposed upon an unwilling provider. ” ( C.R. at 23.)

1 The General Assembly renamed the Department of Public Welfare to the Department of Human Services in September 2014. See Section 103 of the Human Services Code, Act of June 13, 1967, P.L. 31, as amended , added by the Act of September 24, 2014, P.L. 2458, 62 P.S. § 103 (effective November 24, 2014). We will refer to the agency as DHS throughout this opinion.

2 Neither the certified record nor the reproduced record includes a copy of the May 24, 2011 hearing transcript . F or purposes of background information, we are relying on ALJ Lewis’s summary of the testimony contained within the June 13, 2011 adjudication

.4

The Assistant Director testified that the “Medical Assistance Transportation Program (MATP) does not provide transportation to adult training facilities.” ( Id .) Recipient’s father testified that at least $22,000 was budgeted in his son’s ISP for transportation to the ATF

. ( Id. ) Recipient’s father testified that he sought to review Pathways’ financial analysis on transportation costs, but the analysis was never provided to him. ( Id. ) Recipient’s father testified t hat prior to March 2011, he and his wife met the Pathways’ vehicle on “bad weather” days or when Pathways did not have an appropriate vehicle to come to his house. ( Id. ) Recipient’s father
indicated that , subsequent to the notice that Pathways would no l onger provide
door

- to

- door transportation for Recipient, Pathways proposed an alternate pick

- up location in a letter, dated March 14, 2011. ( Id. ) Recipient had never before met the Pathways van at the proposed location , and Recipient’s father did not fee l this was a safe place for his son to get on and off the van

. ( Id. ) Recipient’s father contended that there really is no other provider in Green e County , because Green e Arc does not have a permanent loca tion , is fa rther away from Recipient’s home, and it was not Recipient’s family’s chosen provider for the services. ( Id. ) Recipient’s father called Pathways ’ behavior a “professional violation” and questioned the legality of the proposed transportation arrangement

. ( Id. at 23

- 24.) Finally, Recipient’s father
testified that Pathways is not an unwilling provider of door

- to

- door service for everyone; they are only unwilling to drive more than twenty mile s for Recipient

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

[Recipient ] re ceives services under the

. . . Waiver [, ]

. . . [and] a Waiver recipient has the right to cho o se a willing and able provider. A Waiver provider is not required to provide services to an individual. [Recipient’s] provider for transportation services, to and from his day program was [Pathways ]. [Pathways] was providing door

- to

- door transportation services. Although [ Pathways] did not attend the hearing5

on this matter, it i s clear from the testimony of [Recipient’s] representatives and GCHS [’s witness] that [Path ways’] decision to stop door

- to

- door services was based upon financial reasons . Th is decision was not a vio lation of the regulations.

. . . . The written notice of service reduction was issued March 11, 2011. [Recipient ’s] representatives filed an appeal five days later , on March 16, 2011. As such, services should have continued during the pendency of the appeal. They did not. [Pathways] discontinued [Recipient ’s] door

- to

- door transportation services on March 21, 2011 [,] and GCHS failed to compel [it] to continue services until th is issue was adjudicated. However, the undersigned can provide no remedy. It is not possible to go back and provide door

- to

- door transportation services for days which have passed. GCHS [’s witness] testified credibly that [Recipient’s ] parents are being reimbursed for days they transport [Recipient] to and from the [ATF]. [Recipient’s] parents did not dispute this. . . . (C.R. at 26 (emphasis in original) .) BHA affirmed ALJ Lewis’ s adjudication and
order on June 14, 2011. Recipient s ought reconsideration, which the Secretary of
DHS granted. By final order dated March 14, 2012, the Secretary of DHS ultimately upheld BHA’s order , affirming ALJ Lewis’s adjudication and order

. Recipient then filed a petition for review in our appellate j urisdiction

. Recipient raised the following issue s in the appeal: (1) whether P athways’ proposal

to modify transportation service s violate d reg ulations relating to medical assistance; (2) whether DHS failed to follow all relevant procedures during the appeal process ; (3) whether DHS violated Recipient’s due process and equal protection rights; and (4) whether DHS and Pathways solicited his participation in an “illicit scheme” and abandoned Recipient by supporting the termination of his transportation se rvices. Bussoletti v. Dep ’t of Pub

. Welfare , 59 A.3d 682, 686 (Pa. Cmwlth. 2012) ( Bussoletti I ) , appeal denied , 91 A.3d 1240 (Pa. 2013). In reviewing Recipient’s claims that DHS ’s and Pathways’ changes to Recipient’s transportation services violated r egul ations , we concluded that , wh en6

Pathways chose and informed R ecipient of its intent to end door

- to

- door transportation services, Pathways be ca me an unwilling provider , and Recipient does not have the right to obtain services from an unwilling p rovider. 3 Id

. Similarly, we concluded that DHS could not compel an unwilling provider to pr o vide services , as there was no binding contract or sanction available to compel a provider to continue
services. Id

. We reasoned :

[T]he issue is whether the r egulations require Pathways to continue providing door

- to

- door transportation service and preclude any modification or reduction of service.

. . . We are aware of no regulation requiring an unwilling provider to continue offering a service or precluding t he modification, reduction or cessation of service . Based on the clear regulatory language, we agree with [ ALJ Lewis] that Pathways did not violate the regulations by i ts decision to discontinue door

- to

- door transportation service and its proposal to offe r modified service.
Id . at 687. We further concluded that “questions regarding the compensation Pathways may or may not receive for proposed modified services is not the issue in this appeal. ” Id

. We next addressed Recipient’s cla ims that ALJ Lewis : (1) failed to settle the issue or issues raised by Recipient in requesting a hearing and failed to produce a clear and definitive decision setting forth the fi n ding that DHS acted in accordance
with 55 Pa. Code § 275.1(b)(2); 4 (2) failed to determine the appropriate regulations

3 Our review included reviewing “Federal regulations requir[ing] a State plan to provide that a beneficiary may obtain Medicaid services from any provider ‘(i) Qualified to furnish the services; and (ii) Willing to furnish them to that particular benefici ary

. ’ ” Bussoletti I , 59 A.3d at 686 (quoting 42 C.F.R. § 431.51(b)(1)) ( e mphasis in original)

.

4 Section 275.1(b)(2) of DHS ’s regulation, 55 Pa. Code § 275.1(b) ( 2) , provides, in relevant part: “(b) Objectives of appeals and fair hearings . The objectives of appeals and fair hearing [s] will be . . . (2) [ t ] o settle the issue or issues raised by the client in requesting a hearing and to produce a clear and definitive decision setting forth the findings of [DHS]

. ”7

that apply in accordance with 55 Pa. Code § 275.4(h)(1)(iii) ; 5 and (3) failed to
render a decision based upon the facts and evidence as applied to DHS regulations in accordance with 55 Pa. Code § 275.4(f)(6). 6 Id

. After reviewin g the aforementioned regulations, we concluded that ALJ Lewis rendered her decision in accordance with the regulations , that she conducted a fair hearing and gathered the
fact s necessary to render a decision, and that she “properly determined that Pathways should have continued transportation services during the pendency of the appeal. ”
Id

. at 688.

5 Section 275.4(h)(1)(iii) of DHS ’s regulations, 55 Pa. Cod e § 275.4(h)(1)(iii), provides: (h) Hearing Decisions

. Hearing decisions will conform with t he following: (1) Hear ing authority . Hearing authority will conform with the following:

. . . . (iii) The Office of Hearings and Appeals is under the direct supervision of the Secretary or his designee. The function of the hearing officer in rendering a heari ng decision will be as follows: (A) To determine the facts. (B) To determine the appr opriate regulations that apply. (C) To determine the action that should be taken in relation to the established facts and correct application of Departmental r egulations.

6 Section 275.4(f

) (6) of DHS ’s regulation, 55 Pa. Code § 275.4(f) (6) , provides: (f) Conducting the hearing . The hearing will be held before a hearing officer. The hearing officer will be a qualified agency official who has not be en involved in any way with the decision o r action in question or with the person or officer who is responsible for the decision or action up to the time of the hearing. The responsibilities of the hearing officer in conduct ing the hearing are as follows:

. . . . (6) To render a decision based upon the facts and evidence as appli ed to Departmental regulations.8

Recipient next a rgued that DHS violated his procedural due process rights

. Id

. “Due process requires a person be provided notice and an opportunity to be heard prior to an adjudication affecting that person’s rights.” Id

. (citing Manor v. Dep’t of Pub. Welfare , 796 A.2d 1020 (Pa. Cmwlth. 2002)). “ [DHS ’s ] regulations afford
every pe rson receiving medical assistance the right to appeal from a [DHS] action and to have a hearing.” Id . (citing 55 Pa. Code § 275.1(a)(2)). 7 “An appellant has the right to appear in person at the hearing and present evidence on his own behalf.”
Id . (citing 55 Pa. Code § 275.3(a)). 8 W e concluded that DHS provided Recipient
with notice and an opportunity to be heard on the relevant issues an d that ALJ Lewis afforded him the right to a fair and impartial hearing on relevant matters when his

“ father testified , presented evidence, and cross

- examined GCHS [ ’ s ] witnesses. ”
Id

. at 689.

7 Section 275.1(a)(2) of DHS ’s regulation, 55 Pa. Code § 275.1(a)(2), provides, in relevant part: (a) Right to appeal and have a fair hearing . The policy with regard to the right to appeal and have a f

a i r hearing will be as follows:

. . . . (2) The regulations contained in this chapter, in accordance with the law, afford every person applying for or receiving a money payment, medical assistance, food stamps or services the right to appeal from a Departmental action or failure to act and to have a hearing if he is dissatisfied with a decision refusing or discontinuing assistance in whole or in part.

8 Section 275.3(a) (1) of DHS ’s regulation, 55 Pa. Code § 275.3(a) (1) , provides, in relevant part: (a) Right

s of the appellant . An appellant has the right to appear in person at the hearing and he may represent himself, or he may be represented . . . . The appellant or his representative, if any, have the following rights: ( 1) To present evidence on his own behalf, to bring witnesses or documents he deems necessary, and to confront and cross

- examine witnesses the county office, administering agency or social service provider will produce to support its decision or action. .

. .9

Recipient then argued that DHS violated his eq u al protection ri ghts by “point[ing] to a perceived structural inequity within DHS ’s regulations regarding appeal procedures for medical assistance providers versus recipients.” Id

. “The essence of an equal protection claim is that persons in similar circumstances must
be treated similarly.” Id . (citing Burns v. Pub. Sch. Emps.’ Ret. Bd ., 853 A.2d 1146 , 1152 (Pa. Cmwlth. 2004 )). The crux of Recipient’s argument was that for provider appeals, DHS conducts a de novo review of the factual and legal issues that are timely raised and preserved, while for recipient appeals, DHS is required “[t]o settle the issue or issues raised by the client in requesting a hearing and to produce a clear and definitive decision setting forth the finding.” Id . (citing 55 Pa. Code § 41.191

an d 55 Pa. Code § 275.1(b)(2)). In dismissing this argument, w e noted that Recipient
did not assert how he was treated differently from similarly situated persons ; th at Recipient and providers are not similarly situated ; and that , “[a]lthough the regulations differ [,]

. . . ALJ [Lewis] settled all factual and legal issues properly
before her ,” such that “ this argument lacks merit” Id

. We then addressed R ecipient’s argume nt that DHS and Pathways have solicited his participation in an “illicit scheme” by requiring Recipient’s family to provide part of the transportation service and allowing Pathways to profit from the
service. Id

. We stated that , “[c]ontrary to his assertions, Recipient does not have to agree with Pathways’ prop osal.” Id

. We noted that Recipient could choose another provider from which to receive the service s he is entitled under the Waiver, such as
Green e Arc, or Recipient’s parents c ould transport him to and from the ATF and be reimbursed per mile for doing so. Id

. We similarly dismissed Recipient’s assertion
that DHS and Pathways abandoned him , again not ing that DHS has “provided options for the continuation of these services under the Waiver . . . [and] [DHS] has10

not abandoned Recipient.” Id

. We concluded our decision , stating “[a]lthough we empathize with Recipient and his parents and recognize their frustration over the limited choices available for Recipient’s ISP services in Green e County, we discern

no error . Based on the foregoing, we affirm.” Id . at 689

- 90.
B

. Recipient’s Second Appeal In July 201 6 , R ecipient filed an appea l regarding GCHS’s continued inability to find a provider of door

- to

- door transportation services to the ATF

. DHS , howeve r, had not issued a notice of approval or denial to Recipient regarding his transportation to the ATF

. N evertheless, BHA docketed the appeal and assigned
the case to ALJ Andrew Dr u zisky

. At the hearing on the matter in July 2016, 9 the GCHS Program Director (Program Director) testified about Recipient’s previous adjudication and the
circumstances of the case in 2011. The Program Director testified that Pathways only transports participants in zone one (or within 0

- 20 miles of the ATF) and that Recipient does not live in zone one. (C.R. at 34.) The Program Direc tor testified about GCHS’ s efforts to locate a transportation provider in and around Green e County for Recipient ; specifically, GCHS contacted: (1) First Student , (2) First
Transit , (3) Freedom Transit , ( 4) Kings Transit , and (5) Green e County Transportat ion (GCT), but none were both willing and qualified. ( Id. at 33.) GCHS
also attempted to find individuals to provide transportation to Recipient, but none were willing or qualified. ( Id. at 34.) The Program Director testified that GCT was

not a Waiver service provider, but Recipient could pay for its services out

- of

- pocket
if he chose to do so. ( Id. ) The Program Director also testified that GCT could

9 Neither the certified record nor the reproduced record includes a copy of the July 13, 2016 hearing transcript . F or purposes of background information, we are relying on ALJ Druzisky’s summary of the testimony contained within the August 3 , 2016 adj udication

.11

be come a Waiver service provide r , but the GCHS T ransportation M anage r would be responsible for that decision. ( Id. ) Recipient’s father testified extensively about DHS ’s previous adjudication
and our decision in Bussoletti I

. ( Id. ) Rec ipient’ s father testified that he believed
that DHS retaliat ed against his son and fail ed to meet its responsibili ties. ( Id. ) Recipient’s father testified that he did not want to meet Pathways at a location other
than his house and felt that Pathways was trying to commit fraud. ( Id. ) Recipient’s
father testified that GCT could be found to be a provider an d provide transportation

to Recipient

. ( Id. ) Recipient’s father testified he d i d not want to use Green e Arc as a provider because he did not feel it was reputable

. ( Id. ) Furthermore, he was not aware of a willing and qualified provider, and it was not his job to find a willing and qualified provider. ( Id. ) Recipient’s mother testified that they have disputed each
of Recipient’s ISPs since 2011 and continue to request transportation service s from
GCHS so that he can attend the ATF five days per week. ( Id. ) By adjudi cation and order, dated August 3 , 2016 , ALJ Druzisky denied Recipient’s appeal. ALJ Druzisky noted GCHS’ s efforts and failures to p rovide a replacement provider to Pathways that is both willing and qualified . ALJ D ru zisky also noted that, in Bussoletti I , we determined that Recipient did not have the right to obtain services from an unwilling provider. A LJ Druzisky found that “GCHS has attempted to locate a transp ortation provider for [Recipient] but has been unable to do so due to the rural nature of [Recipient’s] home and the condition of the road [on which] he lives.” (C.R. at 42.) In response to Recipient’s parents’ argument that GCHS was retaliating against him because his parents did not agree to meet the Pathways’ van at a location on a paved road, ALJ Druzisky determined that Recipient’s “parents were not able to identify a provide r who was willing and12

qualified to support their claim [ that ] GCHS was retal iating against them by not approving a provider” and that “GCHS cannot force a provider to provide service.” ( Id .) ALJ Druzisky addressed Recipient’s remaining claims as follow s :

[Recipient’s] father raised the issue regarding GCT and [its] failure to b e a qualified provider (GCHS administers GCT). [ Recipient] was informed he could use GCT but since [it was] willing but not qualified he would be required to pay full fare. [Recipient’s] father did not believe it was correct for [Recipient] to be charged for any service. This transportation service was an option for [Recipient] i f he chose to pursue it and not a requirement. Since GCT is not qualified [it] could not be paid for transportation under the [ Waiver]. [Recipient] also raised the issue that transportation can be provided by a non

- qualified provider in some cases. The [Waiver] requires all providers to be willing and qualified except for public transportation. Neither [Recipient] nor his parents expressed any interest in [R ecipient ] us ing public transportation. ( Id .) By final order dated August 4 , 2016, BHA affirmed ALJ Druzisky’ s adjudication and order

. Thereafter, t he DHS Secretary denied Recipient’s motion
for reconsideration. Recipient filed a petition for review with this Court, which we dismissed as untimely. Bussoletti v. D ep’t of H uman S ervs. , 179 A.3d 1212 (Pa. Cmwlth. 2017) ( Bus s oletti II ) , appeal denied , 191 A.3d 1287 (Pa. 2018)

. C

. Recipient’s Third Appeal
At Recipient’s annual ISP meeting held on April 9, 2019 , DHS informed
R ecipient : (1) it w as continuing its attempt to find a willing and qualified provider to provide door

- to

- door transport to the ATF ; (2) it was overcom ing barriers in its attempt to obtain public transportation to transport Recipient to the ATF ;

a nd (3) Recipient’s parents would continue to be reimbursed mileage to transport
him to the A TF five days per week. R ecipient’s par ents signed the ISP form indicating they disagreed with the discussion and its content

.13

Recipient then requested GCHS to provide a denial notice regarding the denial
of door

- to

- door transportation to the ATF that resulted from the April 9, 2019 ISP meeting. G CHS sent Recipient a letter , stating it could not send a denial notice , as it had not denied transportation services to Recipient. N evertheless, GCHS provided Recipient with a fair hearing request form. In May 2019, Recipient filed an appeal , regarding D HS’ s a lleged denial of transportation to the ATF

. BHA docketed the appeal and assigned the case to ALJ Lisa Reno

. At the hearing on the matter in July 2019, GCHS ’ s Intellectual Disabilities
Director (ID Director) testified that Recipient has received Waiver services since approximately 2005. (C.R. at 338 .) Recipient attends a “day program” at the ATF, and he is eligible for transportation to the facility under the Waiver program. ( Id. at 338

- 39 .) The ID Director testified that the Waiver p rogram allows for
three forms of transportation: (1) Transportation Trip (Door

- to

- Door); (2) Public Transportation; or (3) Mileage Reimbursement. ( Id. at 339 .) The ID Director explained that Pathways previously provided Recipient door

- to

- door transporta tion
service to the ATF but became unwilling to provide door

- to

- door services. ( Id

. at 340

. ) Pathways now only transports participants in zone one (0

- 20 mile s ) , and Recipient does not live in zone one. ( Id. at 342

- 44 .)
The ID Director testified that GCHS continue s to attempt to find a door

- to

- door transportation service for Recipient

. ( Id. at 360

- 61 .) Recipient’s parents are eligible for mileage reimbursement to drive him to the ATF five days per week, but he only attends two days pe r week. ( Id. at 337 .) The ID Director testified that there was no change made to Recipient’s transportation eligibility at the April 9, 2019 ISP meeting ; that GCHS did not find Recipient ineligible for transportation services ; and that , because there was no denial of transportation,14

GCHS did not issue a denial notice to Recipient as a result of the meeting. ( Id. at 335, 337

- 38 .) Recipient’s father then testified extensively about the previous adjudications
and our decision in Bussoletti I

. ( Id. at 377

- 81 .) Recipient’s father testified that he
believed that DHS retaliat ed against his son, that DHS participat ed in fraudulent activities, and that DHS lie d to him. ( Id. at 378

- 79 .) Recipient’s father testified and provided exhibits as to GCHS’ s attempts to find a willing and qualified provider for his son’s door

- to

- door services. ( Id. at 387

- 88 .) Recipient’s father testified, however, that GCHS does not tell providers to offer the door

- to

- door service even though it has the power to do so , and GCHS cho se not to use that power. ( Id. at 381

- 82 .) Recipient’s father testified that they are involuntarily driv ing their

son to the ATF due to DHS’ s failure to provide door

- to

- door transportation

. ( Id. at 401 .) Furthermore, because he works, Recipient’s father cannot take his son there five days per week. ( Id. ) ALJ Reno, in her adjudication and order dated July 29, 2019 , dismissed the appeal and summarized her decision , as follows:

[A]s a result of the April 9, 2019 ISP meeting, [Recipient] continues to be authorized for Community Participation Supports at [ the ATF] five days per week

. [GCHS] has continued [its] approval of transportation services in the mode of Transportation

- (Mile) for five days per week and therefore has not denied transp ortation services to [Recipient]. [Recipient] is not denied the “service” of [his] choice as he is still eligible for transportation, but rather the mode/form in which that service is provided. Additionally, in the [W]aiver it addresses Free Choice of Provider and states

— a participant may select any willing and qualified provider to furnish [W]aiver services. In this case it is undisputed that [GCHS] has continued [its] attempt [] to locate a willing and qualified provider. Per the doctrine of collateral estoppel . . . [Recipient] and [Recipient’s] parents are collaterally estopped from further litigating the issue of [GCHS’ s ] inability to locate a willing provider for door

- to

- door transportation . [GCHS] is encouraged to
co ntinue [its] attempts to locate a willing and qualified provider. Since15

[Recipient] is eligible for Transportation five days per week in the form of mileage reimbursement, [GCHS] is not denying [Recipient’s] full range of services and frequency of attenda nce to [ the ATF]. Accordingly, based on the Findings of Facts and the regulations, the undersigned concludes the appeal of [Recipient] is dismissed . . . . (C.R. at 302.) BHA affirmed ALJ Reno’s adjudication and order, and t his appeal
followed. II. ISSU ES Recipient presents five issues on appeal. 10 First, Recipient asserts that
ALJ Reno misinterpreted 42 C

. F

. R

. § 431.51 , regarding the choice of provider. Second, Recipient contends that ALJ Reno err ed in failing to consider the relevant
contractual obligations and that all previous r uling s in this case rely upon false testimony that no contract existed. Third, Recipient argues ALJ Reno err ed in asserting that DHS can, by denying access to all alternat e forms of Waiver eligible transportation, force families of Waiver participants to involuntarily provide transportation. Fourth, Recipient argues that ALJ Reno err ed in concludin g that collateral estoppel appli ed to the issue of DHS’ s ability to require a provide r to provide door

- to

- door transportation services to Recipient . Finally, Recipient claims
th at ALJ Reno erred in not recognizing that DHS violated Recipient’s equal protection rights , as guaranteed by the Fourteenth Amendment to the United States
Constitution

. DH S argues that the doctrine of collateral estoppel bars Recipient’s claims
that it must require a pr ovider to provide him with door

- to

- door transportation

. DHS also contends that it properly dismissed Recipient’s appeal because it did not

10 Our review of DHS’ s final order is limited to determining whether constitutional rights were violated, whether an error of law was committed, and whether necessary findings of fact are supported by substantial evidence. Bussoletti I , 59 A.3d at 686 n.2.16

deny him transportation services. Given that the application of the doctrine of collateral estoppel affect s the issues we can review in this case, we begin with an examination of the existing law

. III. DISCUSSION
A. Collateral Estoppel Collateral estoppel is based on the policy that “ ‘a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise.’” Plaxton v. Lycoming C ty. Zo ning Hearing Bd. , 986 A.2d 199 , 208 (Pa. Cmwlth. 2009) (quoting McGill v. Southwark Realty Co ., 828 A.2d 430 , 434 (Pa. Cmwlth. 2003)).
C ollateral estopp el will generally foreclose re

- litigation of issues of law or fact in a subsequent action where the fol lowing criteria are met: [ ( ] 1) the issue decided in the prior case is identical to the one presented in the later case; [(]2) there was a final judgment on the merits; [(]3) the party against whom the doctrine is asserted was a party or in privity with a party in the prior case and had a full and fair opportunity to litigate the issue; and [(]4) the determination of the prior proceeding was essential to the judgment. Pucci v. Workers’ Comp. Appeal Bd. (Woodville State Hosp.) , 707 A.2d 646, 648 (Pa. Cmwlth. 1998). The doctrine of collateral estopp el “reduces the costs of multiple lawsuits, facilitates judicial consistency, conserves judicial resources, and ‘encourage[s] reliance on adjudication.’” Rue v. K

- Mart Corp ., 691 A.2d 498, 500 (Pa. Super. 1997) (quoting Allen v. McCurry , 449 U.S. 90, 94 ( 1980)). With this in mind, we begin by reviewing whether the issue in Recipient’s 2011 and 2016 administrative appeals are the same as the issue in
his 2019 administrative appeal. The issue, as framed by ALJ Lewis in
the 20 1 1 appeal, concerned “[w] hether [ DHS ] correctly modified [Recipient’s ]17

services, provided under the [Waiver], by discontinuing door

- to

- door transportation services to [ the ATF] effective March 21, 2011.” (C.R. at 21.) In 2016,
ALJ Druzisky framed the issue as “[w]hether [ DHS ] co rrectly denied [Recipient]
door

- to

- door transportation services to [ the ATF] provided by an entity other than [Recipient’s] parents.” (C.R. at 33.) We note that ALJ Dr uzisky , in the 2016 appeal, specifically concluded that the issue before him was differ ent from the issue in
the 2011 appeal as it concerned “the discontinuance of transportation services provided by Pathways . . . [while] [t]he issue in this [

— i.e. , the 2016 appeal

— ] is [DHS’ s ] failure to find a willing and qualified provider of transportati on services. ” ( C.R. at 41.) ALJ Reno, in the 2019 appeal, framed the issue as “[w]hether [ DHS ] was correct to deny transportation services, and therefore the full range of services and frequency of attendance at [ the ATF], as a result of the April 9, 2019 ISP meeting.” (C.R. at 287

. ) In a ll three appeals the central issue is whether Recipient
was entitled to door

- to

- door transportation to the ATF

. Accord ingly, we agree with
ALJ Reno that DHS met this first factor for collateral estoppel to apply.
C oncerning the remaining factors , Recipient received final judgment s on the
merits of his claims for door

- to

- door transportation to the ATF through the prior appeals , he (through his parents) was a party in the prior appeals , he was provided with full and fair opportunity to litigate the issue of whether he was entitled to
door

- to

- door transportation , and the determination s in the prior appea ls that
Rec ipient was not entitled to door

- to

- door transportation were essential to the judgment in the matter before ALJ Reno and now before this Court

. Thus, ALJ Reno
and BHA correctly concluded that the second , third , and fourth factor s for collateral estoppel were satisfied and, therefore, that collateral estoppel applies to the issue of
whether Recipient is entitled to door

- to

- door transportation to the ATF

.18

In reaching this conclusion, we note that Recipient does not argue that facts
or circumstances relating to the provision of transportation services in his area have changed since he pursued the earlier appeals. For instance, he does not assert that zone one has been expanded, such that he now qualifies for door

- to

- door transportation by Pathways. Nor does he assert that other providers are now providing door

- to

- door transportation services from the area of his residence to the
ATF , such that he, too, should be entitled to receive the same service. Instead, he continues to assert that, despite the fact that no provider is willing to provide
door

- to

- door transportation services from his residence to the A TF , a provider should be forced to provide the service

. 11 A s noted above, this issue has been fully litigated on more than one occasion , and R ecipient is precluded from re

- litigating
this issue in the appeal now before the Court

. 12
B . Equal Protection Recipient next argues that ALJ Reno erred in not recognizing that DHS
violated his equal protection rights , as guaranteed by the Fourteent h Amendment to
the United States Constitution

. The essence of Recipient’s equal protection argument is that prior to Pathways’ discontinuance of his door

- to

- door transportation
to the A TF in 2011, he could attend the program five days a week , and now, because

11 We understand from the record that GCHS has attempted to find a willing and qualified provider for Recipient ’s door

- to

- door services. We certainly encourage GCHS to continue those efforts.

12 As we have disposed of this portion of the appeal on the basis of collateral estoppel, we need not address Recipient’s arguments concerning: (1) whether ALJ Reno erred in failing to consider the relevant contractual obligations and that all previous ruling s in this case rely upon false testimony t hat no contract existed; (2) whether ALJ Reno misinterpreted 42 C

. F

. R

. § 431.51, regarding the choice of provider; and (3) whether ALJ Reno erred in asserting that DHS can, by denying access t o all alternate form s of Waiver

- eligible transportation, force f amilies of Waiver participants to involuntarily provide transportation.19

Pathways no longer offers door

- to

- d oor transportation services, he can only attend two days a week

. Recipient argues that this change constitutes a denial of services
that violates his right to equal protection of the laws. The Equal Protection Cl ause of the United States Constitution directs that no state shall “deny to any person . . . the equal protection of the laws. ” U.S. Const. amend. XIV, § 1. “The Equal Protection Clause ‘does not obligate the government to treat all persons identically, but merely assures that all similarly situated persons are treated alike.’” Armstrong C ty. Mem ’l Hosp. v. Dep ’t of Pub

. Welfare , 83 A.3d 317, 322 (Pa. Cmwlth. 2014) (quoting Small v. Horn , 722 A.2d 664, 672 (Pa. 1998)). “The nature of the governmental ac tion at issue in an equal protection claim determines the nature of the analysis courts must employ.” Garrison v. Dep ’ t of
Corr

. , 16 A.3d 560, 564 (Pa. Cmwlth. 2011). “When the challenge d governmental action neither burdens a fundamental or important rig ht nor creates a suspect or quasi

- suspect classification, courts apply the so

- called rational basis test, and will affirm the governmental action as long as the action is rationally related to a legitimate governmental interest.” Id

. The Equal Protection Clause prohibits public entities from discriminating against the intellectually disabled without a rational
basis. City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 445

- 47 (1985).
With t his framework in mind, we are also cognizant that “ [i]t is well established that ‘issue spotting without analysis or legal citation to support an assertion precludes our appellate review of [a] matter.’” Cornell Narberth, LLC v. Borough of Narberth, 167 A.3d 228, 243 (Pa. Cmwlth. 2017) (quoting Boniella v.
C m wlth. , 958 A.2d 1069, 1072 n.8 (Pa. Cmwlth. 2008) ) ; see also Pa. R.A.P. 2119(a) (requiring argument of issues to be “followed by such discussion and citation to authorities as are deemed pertinent”)

. While R ecipient generally argue s Pathways’20

decision to no longer provide door

- to

- door transportation service to him has resulted in hardship , he does not develop an equal protection argument. Recipient does not identify other similarly situated individuals who have been treated differently than
he has with regard to door

- to

- door transportation services under the Waiver program

. We conclude that Recipient has failed to establish a violation of his equal protection rights. IV. CONCLUSION Accordingly, we must affirm DHS ’ s final administrative action order.

P. KEVIN BROBSON, JudgeTHE COMMONWEALTH COURT OF PENNSYLVANIA

Luke Bussoletti, : Petitioner :

: v. : No. 1230 C.D. 2019
: Department of Human Services, : Respondent :

O R D E R

AND NOW, thi s 5 th day of November , 20 20 , the final administrati ve action
order of the D epartment of Human S ervices , dated July 30, 2019, is AFFIRMED

.

P. KEVIN BROBSON, Judge