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,

petitions 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 order 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), regarding Recipient’s transportation to Pathways

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 

lives with his parents in Greene County, Pennsylvania. The 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 Services

(HCBS) under the Consolidated Waiver (Waiver) program.

The Waiver 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 intellectual 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 United 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).) ODP administers the Waiver program for DHS. 

For individuals residing in Greene County, GCHS is responsible for authorizing all 

services and supports that are funded 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 context, 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 ATF for five days per week. Prior to 

March 2011, Pathways 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, 2011, Pathways informed the family that it was
3

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 five miles from the family home, 

but his parents did not agree to that modification. On March 11, 2011, the

Department of Public Welfare,

1

through GCHS, issued a written notice to Recipient 

informing him of Pathways’ discontinuance of door-to-door transportation services

due to financial reasons. Recipient appealed the decision. ALJ Karen C. Lewis held 

a hearing on the matter in May 2011.

2

The GCHS Assistant Director of the Intellectual and Developmental 

Disabilities Department (Assistant Director) testified that Pathways, 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 provider, such as “Green[e] Arc,” which 

provides transportation to the other adult training facilities in Greene County, or 

Recipient’s parents could take him to the ATF and 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. For 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 that 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 longer 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 feel 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 Greene County, because Greene Arc does not 

have a permanent location, is farther 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 miles for Recipient.

ALJ Lewis, in her adjudication and order dated June 13, 2011, denied the 

appeal, in part, and sustained the appeal, in part. In so doing, she stated:

[Recipient] receives services under the . . . Waiver[,] . . . [and] a 

Waiver recipient has the right to choose 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 hearing 
5

on this matter, it is clear from the testimony of [Recipient’s] 

representatives and GCHS[’s witness] that [Pathways’] decision to stop 

door-to-door services was based upon financial reasons. This decision 

was not a violation 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 this 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 sought 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 jurisdiction.

Recipient raised the following issues in the appeal: (1) whether Pathways’ proposal 

to modify transportation services violated regulations 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 services. 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 regulations, we concluded that, when 
6

Pathways chose and informed Recipient of its intent to end door-to-door 

transportation services, Pathways became an unwilling provider, and Recipient does 

not have the right to obtain services from an unwilling provider.3 Id. Similarly, we 

concluded that DHS could not compel an unwilling provider to provide 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 regulations 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 the 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 its 

decision to discontinue door-to-door transportation service and its 

proposal to offer 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 claims 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 finding 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 beneficiary.’” Bussoletti I, 59 A.3d 

at 686 (quoting 42 C.F.R. § 431.51(b)(1)) (emphasis 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).6Id. After reviewing 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 

facts 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. Code § 275.4(h)(1)(iii), provides:

(h) Hearing Decisions. Hearing decisions will conform with the following:

(1) Hearing 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 hearing decision will be as follows:

(A) To determine the facts.

(B) To determine the appropriate regulations that apply.

(C) To determine the action that should be taken in relation 

to the established facts and correct application of 

Departmental regulations.

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 been involved 

in any way with the decision or 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 conducting the hearing are as follows:

. . . .

(6) To render a decision based upon the facts and evidence as applied to 

Departmental regulations.
8

Recipient next argued 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 person 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 We concluded that DHS provided Recipient 

with notice and an opportunity to be heard on the relevant issues and 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 fair 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) Rights 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 equal protection rights 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 

and 55 Pa. Code § 275.1(b)(2)). In dismissing this argument, we noted that Recipient 

did not assert how he was treated differently from similarly situated persons; that 

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 Recipient’s argument 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’ proposal.” Id. We noted that Recipient could choose another 

provider from which to receive the services he is entitled under the Waiver, such as 

Greene Arc, or Recipient’s parents could 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 noting that DHS has “provided 

options for the continuation of these services under the Waiver . . . [and] [DHS] has 
10

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 Greene County, we discern 

no error. Based on the foregoing, we affirm.” Id. at 689-90.

B. Recipient’s Second Appeal

In July 2016, Recipient filed an appeal regarding GCHS’s continued inability 

to find a provider of door-to-door transportation services to the ATF. 

DHS, however, had not issued a notice of approval or denial to Recipient regarding 

his transportation to the ATF. Nevertheless, BHA docketed the appeal and assigned 

the case to ALJ Andrew Druzisky.

At the hearing on the matter in July 2016,9the 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 Director testified 

about GCHS’s efforts to locate a transportation provider in and around Greene

County for Recipient; specifically, GCHS contacted: (1) First Student, (2) First 

Transit, (3) Freedom Transit, (4) Kings Transit, and (5) Greene County 

Transportation (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. For purposes of background information, we are relying on ALJ Druzisky’s 

summary of the testimony contained within the August 3, 2016 adjudication.
11

become a Waiver service provider, but the GCHS Transportation Manager would be 

responsible for that decision. (Id.)

Recipient’s father testified extensively about DHS’s previous adjudication 

and our decision in Bussoletti I. (Id.) Recipient’s father testified that he believed

that DHS retaliated against his son and failed to meet its responsibilities. (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 and provide transportation 

to Recipient. (Id.) Recipient’s father testified he did not want to use Greene 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 services from 

GCHS so that he can attend the ATF five days per week. (Id.)

By adjudication and order, dated August 3, 2016, ALJ Druzisky denied 

Recipient’s appeal. ALJ Druzisky noted GCHS’s efforts and failures to provide a 

replacement provider to Pathways that is both willing and qualified. ALJ Druzisky

also noted that, in Bussoletti I, we determined that Recipient did not have the right 

to obtain services from an unwilling provider. ALJ Druzisky found that “GCHS has 

attempted to locate a transportation 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 provider who was willing and 
12

qualified to support their claim [that] GCHS was retaliating 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 follows:

[Recipient’s] father raised the issue regarding GCT and [its]

failure to be 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] if 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 [Recipient] using 

public transportation.

(Id.) By final order dated August 4, 2016, BHA affirmed ALJ Druzisky’s

adjudication and order. Thereafter, the DHS Secretary denied Recipient’s motion 

for reconsideration. Recipient filed a petition for review with this Court, which we

dismissed as untimely. Bussoletti v. Dep’t of Human Servs., 179 A.3d 1212 (Pa. 

Cmwlth. 2017) (Bussoletti 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

Recipient: (1) it was continuing its attempt to find a willing and qualified provider 

to provide door-to-door transport to the ATF; (2) it was overcoming barriers in its

attempt to obtain public transportation to transport Recipient to the ATF; 

and (3) Recipient’s parents would continue to be reimbursed mileage to transport

him to the ATF five days per week. Recipient’s parents 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. GCHS sent Recipient a letter, stating it could not send a denial notice, as 

it had not denied transportation services to Recipient. Nevertheless, GCHS provided 

Recipient with a fair hearing request form. In May 2019, Recipient filed an appeal, 

regarding DHS’s alleged 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 program 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 transportation 

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 miles),

and Recipient does not live in zone one. (Id. at 342-44.)

The ID Director testified that GCHS continues 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 per 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 retaliated against his son, that DHS participated in fraudulent 

activities, and that DHS lied 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 chose not to use that power. 

(Id. at 381-82.) Recipient’s father testified that they are involuntarily driving 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 transportation 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 

continue [its] attempts to locate a willing and qualified provider. Since 
15

[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 attendance 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 this appeal 

followed.

II. ISSUES

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 erred in failing to consider the relevant 

contractual obligations and that all previous rulings in this case rely upon false 

testimony that no contract existed. Third, Recipient argues ALJ Reno erred in 

asserting that DHS can, by denying access to all alternate forms of Waiver eligible 

transportation, force families of Waiver participants to involuntarily provide 

transportation. Fourth, Recipient argues that ALJ Reno erred in concluding that 

collateral estoppel applied to the issue of DHS’s ability to require a provider to 

provide door-to-door transportation services to Recipient. Finally, Recipient claims 

that 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.

DHS argues that the doctrine of collateral estoppel bars Recipient’s claims 

that it must require a provider 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 affects 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 Cty. Zoning Hearing Bd., 986 A.2d 199, 208 (Pa. Cmwlth. 2009) 

(quoting McGill v. Southwark Realty Co., 828 A.2d 430, 434 (Pa. Cmwlth. 2003)). 

Collateral estoppel will generally foreclose re-litigation of issues of law or fact in a 

subsequent action where the following 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 estoppel “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 2011 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] correctly 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 Druzisky, in the 2016 appeal, 

specifically concluded that the issue before him was different 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 transportation 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 all three appeals the central issue is whether Recipient

was entitled to door-to-door transportation to the ATF. Accordingly, we agree with 

ALJ Reno that DHS met this first factor for collateral estoppel to apply.

Concerning the remaining factors, Recipient received final judgments 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 determinations in the prior appeals that 

Recipient 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 factors 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 ATF, a provider 

should be forced to provide the service.

11

 As noted above, this issue has been fully 

litigated on more than one occasion, and Recipient 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 Fourteenth 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 ATF 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 rulings in this case rely upon 

false testimony that 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 to all alternate forms of Waiver-eligible transportation, force families of Waiver 

participants to involuntarily provide transportation.
19

Pathways no longer offers door-to-door 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 Clause 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 Cty. 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 action 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 challenged governmental 

action neither burdens a fundamental or important right 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 this 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.

Cmwlth., 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 Recipient generally argues 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, Judge
THE 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, this 5

th day of November, 2020, the final administrative action 

order of the Department of Human Services, dated July 30, 2019, is AFFIRMED.

P. KEVIN BROBSON, Judge