M. Alsyrawan v. DHS

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mohamad Alsyrawan, :

Petitioner :

:

v. :

:

Department of Human Services, : No. 111 C.D. 2023

Respondent : Argued: April 11, 2024

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY

JUDGE COVEY FILED: May 20, 2024

Mohamad Alsyrawan (Petitioner) petitions this Court for review of then

Acting Secretary of Human Services, Meg Snead’s (Secretary Snead),1 January 9,

2023 Final Order affirming the Department of Human Services’ (Department),

Bureau of Hearings and Appeals’ (BHA), November 3, 2022 decision that adopted

the Administrative Law Judge’s (ALJ) adjudication denying Petitioner’s request for

an exception to the Department’s cap on the number of in-home care hours his family

members may provide to him. Petitioner presents two issues for this Court’s review:

(1) whether the Department’s refusal to grant Petitioner an exception infringes upon

his right to exercise his religion under the Free Exercise Clause in the First

Amendment to the United States (U.S.) Constitution (First Amendment);2 and (2)

whether the Department’s refusal to grant Petitioner an exception violates the

Religious Freedom Protection Act (RFPA).3 After review, this Court affirms.

1

Valerie A. Arkoosh, M.D., MPH was appointed Secretary on January 17, 2023.

2

U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof[.]”).

3

Act of December 9, 2002, P.L. 1701, 71 P.S. §§ 2401-2408.

Background

The Pennsylvania Supreme Court has explained:

Medicaid is the nation’s primary health insurance program

for low-income and high-need Americans. Enacted in

1965 and set forth at Title XIX of the Social Security Act,

[] 42 U.S.C. §§ 1396-1396w-6, Medicaid is jointly funded

by the federal and state governments. Although a state’s

participation in Medicaid is optional, once a state elects to

participate[,] it must comply with Title XIX and applicable

regulations. Medicaid is administered at the federal level

by the Centers for Medicare & Medicaid Services

([]CMS[]), an agency of the [U.S.] Department of Health

and Human Services. In Pennsylvania, it is administered

by [the Department] and is known as Medical Assistance.

For states that participate in Medicaid, the federal

government requires coverage for certain mandatory

populations and services, but it also authorizes waiver

programs, or simply “waivers” for short, which give states

flexibility to operate outside [the] federal rules.

One category of waivers, authorized by Section 1915(c) of

the Social Security Act, 42 U.S.C. § 1396n, falls under the

umbrella term Home and Community Based Services

([]HCBS[]). These waivers allow states to meet the needs

of eligible individuals receiving long-term care supports

and services in their home or community rather than in an

institutional setting . . . .

Within [the Department], the Office of Developmental

Programs ([]DHS/ODP[]) . . . is responsible to fund and

supervise the provision of services associated with HCBS

waivers, most notably . . . , community participation

support ([]CPS[]) services. . . .

In Pennsylvania, CPS services are provided pursuant to

three HCBS waivers: the Consolidated Waiver, the

Person/Family Directed Support Waiver, and the

Community Living Waiver. The CPS services themselves

are supplied by vendors, or providers, who in turn are

2

reimbursed by DHS/ODP pursuant to rates developed and

published by [the Department].[4]

Rehab. & Cmty. Providers Ass’n v. Dep’t of Hum. Servs. Off. of Developmental

Programs, 283 A.3d 260, 262-63 (Pa. 2022); see also Bussoletti v. Dep’t of Pub.

Welfare, 59 A.3d 682 (Pa. Cmwlth. 2012).

Relatives or legal guardians of adult individuals with intellectual

disabilities may be paid to provide HCBS and Companion services authorized by a

recipient’s individual support plan (ISP) when such services are considered

extraordinary care (i.e., they exceed what is expected in the usual course of

parenting), the services would otherwise have to be provided by a qualified service

provider funded under the Consolidated Waiver, and the legally responsible person

meets the ODP’s qualification criteria. See Certified Record (C.R.) Item 4, Final

Administrative Action Order Finding of Fact (FOF) 3; see also id. at 12-13 (C.R. at

206-207).

On June 30, 2016, ODP applied to CMS for a waiver to, inter alia,

“[i]mplement a limit on the amount of [HCBS] and/or [C]ompanion services that

can be provided by relatives and legal guardians.” C.R. at 76. ODP proposed to

limit the maximum hours a relative or legal guardian may be paid to provide HCBS

and Companion services to a Consolidated Waiver participant to 40 hours for a

single caretaker and 60 hours for multiple caretakers (40/60 Rule or family cap). See

C.R. at 78. CMS approved the change on July 13, 2016, to be effective as of

February 1, 2017. See C.R. at 75, 102, 108.

On September 16, 2016, the ODP issued ISP Manual Bulletin No. 00-

16-06 (ODP Bulletin), Section 14 of which declared, in pertinent part:

4

“Waiver services complement and/or supplement the services that are available to

participants through the Medicaid [s]tate plan and other federal, state[,] and local public

programs[,] as well as the supports that families and communities provide.” See Certified Record

at 75.

3

[A]ny one relative or legal guardian may provide a

maximum of 40 hours per week of authorized [HCBS and

Companion services]. Further, when multiple relatives

and/or legal guardians provide the service(s)[,] each

individual may receive no more than 60 hours per week

. . . from all relatives and legal guardians[].

An exception [to the 40/60 Rule] may be made . . . when

there is an emergency or an unplanned departure of a

regularly scheduled worker for up to 90 calendar days in

any fiscal year.

C.R. Item 3, Ex. C-5 (ODP Bulletin) at 137-138 (C.R. at 86-87) (emphasis added;

footnote omitted).

Section 14 of the ODP Bulletin clarified:

In general, these situations include, but are not necessarily

limited to:

• Unexpected circumstances such as inclement

weather, sudden illness, or the unplanned

extension of medical leave, that prevent a regularly

scheduled worker from arriving at the job site and

where another worker/caregiver is not

immediately available to work;

• Situations where a regularly scheduled worker is

terminated or refuses to provide care without

providing adequate notice (e.g.[,] the worker

notifies the employer that he or she refuses to work

on the day he or she is scheduled to provide the

service or is dismissed due to gross non-

compliance or misconduct); or

• The sudden loss of a caregiver who provided

uncompensated support that kept the provision of

services by relatives at or below 40/60 hours per

week.

4

ODP Bulletin at 138 (C.R. at 87); see also FOFs 4-5, 8 (C.R. at 200). However,

“[t]here are no permanent exceptions to the 40[/]60 Rule.”5 FOF 7 (C.R. at 200).

Petitioner and his family emigrated from Syria to the U.S. in 2001 and

are Muslim. Petitioner is a non-verbal adult male6 with intellectual disabilities who

resides at home with his mother (Mother) in Philadelphia. Petitioner has been

diagnosed with, inter alia, Down syndrome, autism, mental intellectual disabilities,

a hearing problem, and sleep apnea. Petitioner requires constant supervision and

assistance with all activities of daily living and doctor’s appointments,7 plus in-home

activities and outside activities Petitioner enjoys, such as dining, swimming, and

walking. Mother and Petitioner ’s sister (Sister) are currently Petitioner’s primary

caretakers.8 See FOF 11; see C.R. at 202, 508-509.

In July 2016, based on his ISP, the Department approved Petitioner to

receive 133 hours per week (i.e., 19 hours per day) of HCBS in addition to

Companion services under the Department’s Consolidated Waiver. See FOF 9 (C.R.

at 200). The Department also authorized Petitioner to attend a day program at The

Center for Creative Works (Center), Monday through Friday, from 8:30 a.m. to 2:30

p.m., which he regularly attended from November 15, 2016 until February 10, 2020,

when the COVID-19 pandemic began.9 See C.R. at 36, 57, 114, 425-426, 506.

5

But see Jalil v. Dep’t of Hum. Servs. (Pa. Cmwlth. No. 1856 C.D. 2019, filed Feb. 22,

2021). This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,

but not as binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating

Procedures, 210 Pa.Code § 69.414(a). Jalil is cited for its persuasive value.

6

Petitioner communicates primarily through gestures, facial expressions, and lip reading.

See C.R. at 502-504.

7

Aside from needing assistance with daily personal care, Mother described that Petitioner

must be carefully monitored because he can move quickly and quietly, and will try to go outside

alone, plus he has an affinity for fire and will leave the stove on or put metal silverware in the

microwave. See C.R. at 509, 530.

8

Petitioner’s brother lives in Florida. Petitioner’s father lives in Syria and has never been

a part of his life. See C.R. at 518-519.

9

Due to transportation difficulties, Petitioner went to the Center only approximately 60%

of the approved time. See C.R. at 203.

5

Under the Consolidated Waiver, MARSCare10 pays Mother for the daily care she

provides Petitioner from 6:00 a.m. to 5:00 p.m. (when Petitioner does not attend a

day program), and pays Sister for care she provides Petitioner from 10:00 p.m. to

6:00 a.m.11 See FOFs 11-12 (C.R. at 200); see also C.R. at 505-506, 508-510. Prior

to the Department’s implementation of the 40/60 Rule, Mother and Sister were paid

for providing more than 60 hours of Petitioner’s care each week.12 See FOF 10.

Facts

On January 10, 2017, after being made aware of the 40/60 Rule, Mother

filed an agency appeal on Petitioner’s behalf seeking a permanent exception under

which Mother and Sister would be permitted to continue providing Petitioner more

than 60 hours of his paid weekly care “because Mother . . . wants to keep [Petitioner]

under her care and provide and serve his needs for religious purposes and other

issues that can affect [him] mentally and emotionally.” C.R. at 91. By January 13,

2017 letter, the Department notified Petitioner that his request had been forwarded

to the BHA. ALJ Clarissa M. Edu (ALJ Edu) conducted a hearing on February 21,

2017. On March 27, 2017, ALJ Edu dismissed Petitioner’s appeal for lack of

jurisdiction because it was not based on a Department denial, suspension, or

discontinuance of benefits but rather a non-appealable change to a CMS-approved

waiver. See FOF 17; see also C.R. at 99-109. On March 29, 2017, the BHA affirmed

ALJ Edu’s adjudication. See C.R. at 98. On April 17, 2017, Petitioner petitioned

10

MARSCare is the provider contractually matched with Petitioner to provide his

Consolidated Waiver services. See FOF 12 (C.R. at 200).

11

Mother provides Petitioner’s care from 5:00 p.m. to 10:00 p.m. without pay. Mother

goes to bed around 11:00 p.m. and wakes up for prayer at approximately 5:45 a.m. Sister is

employed by Children’s Hospital during the week from 8:30 a.m. to 4:30 p.m. Thereafter, she

sleeps until she must travel to Mother’s home to care for Petitioner. Sister lives with a roommate

approximately 20 minutes away.

12

On days that Petitioner was at the Center, Mother was paid for fewer HCBS hours. See

C.R. at 186.

6

the Department’s then-Secretary Ted Dallas (Secretary Dallas) to remand the matter

to the BHA. See FOF 18; see also C.R. at 111, 114. On July 10, 2017, Secretary

Dallas denied Petitioner’s request and upheld the BHA’s March 29, 2017 decision.

See FOF 19; see also C.R. at 114. Petitioner appealed to this Court. See FOF 20.

By October 4, 2017 letter, MARSCare notified Petitioner of its intent

to enforce the 40/60 Rule. See FOF 21. On November 22, 2017, this Court

remanded the matter to the BHA. See FOF 22. On February 12, 2018, the BHA

conducted a hearing at which the parties entered into a Stipulation of Settlement,

therein agreeing to have the Department re-assess Petitioner’s eligibility for an

exception to the 40/60 Rule. See FOF 23; see also C.R. at 111. On April 25, 2018,

after re-assessing Petitioner’s circumstances, the Department denied Petitioner’s

exception request, stating:

Based on our review of this information and the

discussions with his day staff, our conclusion is that

[Petitioner] responds to both male and female staff and

there is no reason to limit staff support at his home to his

[M]other and [S]ister. Therefore, the request for an

exception to the 40/60 [Rule] established in the

Consolidated Waiver is not granted. Family preferences

in terms of gender should be honored by the provider

agency.

C.R. at 115; see also FOF 24; see also C.R. at 113-114, 116. On April 26, 2018,

Petitioner appealed to the BHA. See FOF 25.

Before the BHA scheduled a hearing,13 the global COVID-19 pandemic

ensued in March 2020. See FOF 26. Due to the public health emergency created by

13

[A] fair hearing was not scheduled for an extended period of time[,]

which included the first 18 months of the [COVID-19] pandemic.

In September 2021, after discovery of this oversight, the

Philadelphia Department of Behavioral Health and [D]is[a]bility

Services, acting as the Philadelphia Administrative Entity for

7

the pandemic, the Department issued a temporary exception/suspension to the 40/60

Rule, commonly referred to as Appendix K, that allowed relatives to be paid for

caring for participants in excess of the 60-hour family cap each week. See FOFs 27-

28. Pursuant to Appendix K and with the Department’s approval for the pendency

of this appeal, Mother and Sister continue to be paid for Petitioner’s care above the

60-hour per week cap.14 See FOFs 29, 32.

ALJ Nadiola Logan-Thomas (ALJ Logan-Thomas) conducted hearings

on November 18, 2021, and May 3, July 19, and September 13, 2022. See C.R. at

233-582. At the hearings, Mother testified that she was seeking a permanent 40/60

Rule exception for religious reasons. See C.R. at 512. She described that her family,

including Petitioner, follows Islamic law set forth in the Quran, which forbids, inter

alia, unrelated males and females from being alone together, and unrelated males

from providing personal care involving nudity or exposed private areas. See C.R. at

512-513, 516. Therefore, to protect Petitioner from sin, only Mother, Sister, or other

closely related female relatives may be alone with Petitioner, and only a father,

brother, uncle, or grandfather could provide his more intimate bathroom and shower

care. See C.R. at 513-516, 526. Mother added that the prohibition of unrelated males

and females being alone together likewise prohibits her from being alone with an

unrelated male caretaker while he is tending to Petitioner. See C.R. at 538-539, 543-

544. She explained that exceptions to the Islamic privacy mandates are only made

[ODP], asked [Petitioner] to complete additional paperwork for a

fair hearing request, which he did. [See] C[.]R[. at] 10-16.

Petitioner Br. at 6.

14

In the interim, in Jalil, this Court observed that the Department had “granted . . . an

exception to the 40/60 Rule; however, no evidence was presented which established the type of

exception granted or the reasons for the exception.” Slip op. at 10 (C.R. at 151). The parties to

the instant matter stipulated that the exception in Jalil that the Department granted was “based on

individualized circumstances and not based on an emergency or unplanned departure of a regularly

scheduled worker.” C.R. at 182; see also C.R. at 563-564.

8

when necessary for survival (i.e., if Mother dies or is unable to care for Petitioner),

and since she can now care for and protect Petitioner, she must do so in accordance

with Islamic law. See C.R. at 540, 550.

Mother also expressed that her request for a permanent 40/60 Rule

exception is based on her concern for Petitioner’s safety, since Petitioner is non-

verbal and “cannot express himself if something happened to him.” C.R. at 515.

Although she claims to generally trust people, she has witnessed how staff has made

disabled people angry and calmed them with medication instead of love and care,

and she must do what is best for Petitioner to keep him safe. See C.R. at 527-529.

Mother admitted that she trusted the public school staff and the Center’s staff,

including Center program specialist Jason Johnson (Johnson), because they

respected her rules, Petitioner was usually in an open area in a group setting, and

those institutions were responsible for keeping Petitioner safe while he was there.

See C.R. at 529-532.

Mother admitted that, in the absence of the requested exception, she

will not allow an unrelated caregiver to provide care during the other hours; she and

Sister would continue to solely provide his care to keep him safe and protect him

from sin. See C.R. at 516-517, 521, 534. Mother stated that even if she allowed an

unrelated male Islamic caregiver into her home, she could not be in the home with

the caregiver because her father, husband, or other son are not present. See C.R. at

537-539. She acknowledged that she could provide Petitioner’s more intimate care

before and after a male caregiver’s time with Petitioner, and the caregiver would not

have to be of the Islamic faith, but added that an Islamic caregiver would understand

that Petitioner must pray five times per day,15 pray in a certain place, and wash before

15

Mother prays daily at 6:00 a.m., 1:00 p.m., 5:00 p.m., 7:00 p.m., and 9:00 p.m. See C.R.

at 542-543.

9

praying - all of which Petitioner must be prompted to do. See C.R. at 537-538, 541-

542.

Mother explained that she primarily speaks to Petitioner in her native

language, Arabic. See C.R. at 504, 516. Mother declared that Petitioner understands

English, but “he understand[s] Arabic more.” C.R. at 504. Mother believes

Petitioner would function best with a caregiver who speaks Arabic. See C.R. at 516.

However, Petitioner’s ISP reflects that “his family speaks English and Arabic. He

understands more English than Arabic.” C.R. at 41. Moreover, Mother

acknowledged that Petitioner attended the Philadelphia public school system and an

after-school program without an aide until he graduated in June 2016. See C.R. at

522. She claims that Petitioner received his high school education in English and

Arabic, because her friend who worked in the schools translated for him. See C.R.

at 522-524.

Mother detailed the daily care Petitioner requires and declared that he

must constantly be supervised. See C.R. at 509, 530. She specified that he needs

support when he bathes - prompts to wash, and stabilizing to get in and out of the

shower. See C.R. at 507-508. Mother added that Petitioner also needs bathroom

assistance. See C.R. at 508, 510. She explained:

Q. Would it create a problem for [Petitioner’s] care for

there to be an aid who is outside the bathroom that does

not assist him inside the bathroom?

A. Yeah, because he is supposed to wash him, and

[Petitioner] would be nervous. He like [sic] to be clean.

Like, what if he - for example. Sorry about this. People

who have to wash him. He [sic] going to call me from my

side, come wash your son. It’s going to be so complicated,

you know?

Q. So, when he has a bowel movement, does [Petitioner]

need to be washed?

10

A. Yes, he needs to be washed, and he would be nervous

if we don’t do it for him.

Q. What happens when [Petitioner] is nervous?

A. He don’t [sic] move from his seat until you do it for

him. If you force him to pull up his pants, he gets nervous.

His face gets red. You find him all around the house trying

to open the door and leave the house. That’s a way when

he be [sic] nervous, he be - then he picking. My son

picking on his forehead and then he bleed. He picks at his

forehead.

C.R. at 544. Mother acknowledged that Petitioner used the bathroom at the Center

without such assistance (rather, male staff at the Center prompted Petitioner from

outside the bathroom), but claimed that she regularly received calls from Center staff

for her to go and change Petitioner or provide clean clothing because he was soiled

or wet, or he refused to leave the bathroom. See C.R. at 510, 533, 536-537.

Mother explained that Petitioner loved attending the Center’s program,

but he did not return when it reopened after the pandemic because staff informed her

that only the program for higher functioning adults reopened, that Petitioner was not

suited for it, and that the Center would contact her if his particular program reopened.

See C.R. at 510-512.

Johnson testified that Petitioner was a joy to have at the Center, that he

liked interacting with the other participants and staff once he got to know them, and

that he loved creating art, especially drawing. See C.R. at 428-430. He expressed

that, although being non-verbal presented a challenge initially, Petitioner was very

expressive with his face and the staff worked with Mother to know what Petitioner

liked and did not like. See C.R. at 426-428, 430. Johnson recalled that Mother raised

Petitioner’s religion relative to foods and certain events that Petitioner could not

participate in, but not related to Center staff. See C.R. at 434-435. He stated that

11

male and female staff worked with Petitioner in group settings at the Center. See

C.R. at 426-430.

Johnson described that the Center generally afforded its participants as

much autonomy as possible, particularly relative to the bathroom. See C.R. at 432.

However, he recalled that Mother declared her preference for Petitioner to use the

single-stall bathroom at the Center. See C.R. at 432. He also testified that, after

Mother expressed concerns with Petitioner’s sanitation in restrooms, he and other

Center staff watched for when Petitioner went to the bathroom and then prompted

him from outside the bathroom to wipe and wash his hands. See C.R. at 431-433.

Johnson related that, based on his observations, Petitioner was able to independently

toilet and wash up thereafter. See C.R. at 431. Johnson did not specifically recollect

Petitioner urinating on himself or Center staff calling Mother about changing

Petitioner’s clothes,16 but he remembered discussing with Mother having to prompt

Petitioner to exit the bathroom after 15 minutes or more. See C.R. at 440-441.

Johnson confirmed that the Center still offers a program for which

Petitioner would qualify under the Consolidated Waiver, but that program (i.e.,

2390) is more focused on employment and is not as suitable for Petitioner as the

discontinued program (i.e., 2380). See C.R. at 437-440.

Based on the record, on October 28, 2022, ALJ Logan-Thomas denied

Petitioner’s appeal, concluding that the Department properly refused to grant an

exception to the 40/60 Rule because there is care available to Petitioner that would

not violate the family’s religious rules and safety concerns. Specifically, the

evidence established: (1) Mother prefers for her and Sister to provide all of

Petitioner’s care for religious and safety reasons; (2) a male caregiver could attend

to Petitioner (except for dressing, bathing, and bathroom care) while Mother is out

16

Johnson testified that if that did occur, it did not occur frequently. See C.R. at 441.

12

of the house without violating Islamic law; (3) Mother has not explored whether

Petitioner would now benefit from the Center’s 2390 program, or whether another

day program is acceptable for him; (4) Petitioner does not require an Arabic-

speaking caretaker because, during the years that he attended public school, the after-

school program, and the Center, English-speaking staff effectively communicated

with him; (5) Petitioner does not require washing after every bowel movement

because he attended school and the Center where he cleaned himself with verbal

prompts; and (6) Mother’s and Sister’s care schedules are demanding, and lack of

rest on their part could negatively affect the quality of service they provide for

Petitioner. See ALJ Logan-Thomas’s Adj. at 17-19 (C.R. at 211-213). ALJ Logan-

Thomas afforded Mother’s testimony the same probative value as the Department’s

witnesses. See id. at 19 (C.R. at 213).

By Final Administrative Action Order dated November 3, 2022, the

BHA affirmed ALJ Logan-Thomas’s adjudication. See C.R. at 195. On November

18, 2022, Petitioner requested reconsideration by Secretary Snead, which Secretary

Snead granted on December 1, 2022. On January 9, 2023, Secretary Snead issued

the Final Order upholding the BHA’s decision. See C.R. at 232. Petitioner appealed

to this Court.17

17

This Court’s review of Secretary Snead’s Final Order is limited to determining whether

an error of law was committed, whether necessary findings of fact were supported by substantial

evidence, and whether constitutional rights were violated. See Brenckman v. Dep’t of Hum. Servs.,

222 A.3d 38 (Pa. Cmwlth. 2019).

The Secretary of the Department (or the Secretary’s designee) is the

ultimate fact[-]finder . . . and, as such, is free to accept or reject the

testimony of any witness, either in whole or in part . . . . In

determining whether a finding of fact is supported by substantial

evidence, th[is] Court is required to give the party in whose favor

the decision was rendered “the benefit of all reasonable and logical

inferences that may be drawn from the evidence of record.” S.T. v.

Dep[’t] of Pub[.] Welfare, Lackawanna C[nty.] Off[.], Child[.],

13

Discussion

Initially, “[t]he Free Exercise Clause of the First Amendment,

applicable to the [s]tates under the Fourteenth Amendment [to the U.S.

Constitution], provides that ‘Congress shall make no law . . . prohibiting the free

exercise’ of religion.”18 Fulton v. City of Phila., Pa., 593 U.S. 522, 532 (2021); see

also St. Elizabeth’s Child Care Ctr. v. Dep’t of Pub. Welfare, 989 A.2d 52 (Pa.

Cmwlth. 2010). The Free Exercise Clause’s “purpose is to secure religious liberty

in the individual by prohibiting any invasions thereof by civil authority.” Sch. Dist.

of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 223 (1963). To that end, it

“guarantees that citizens can believe and profess their sincerely[ ]held religious

beliefs,”19 Kocher v. Bickley, 722 A.2d 756, 759 n.10 (Pa. Cmwlth. 1999), and

“categorically prohibits government from regulating, prohibiting, or rewarding

religious beliefs as such.” McDaniel v. Paty, 435 U.S. 618, 626 (1978) (plurality).

“At a minimum, the protections of the Free Exercise Clause pertain if

the law at issue discriminates against some or all religious beliefs or regulates or

prohibits conduct because it is undertaken for religious reasons.” Church of Lukumi

Bablu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993). The U.S. Supreme

Youth & Fam[.] Serv[s.], 681 A.2d 853, 856 (Pa. Cmwlth. 1996).

Further, because determinations regarding credibility and weight of

the evidence are for the fact[-]finder, we will not disturb those

determinations absent an abuse of discretion.

Allegheny Cnty. Off. of Child., Youth & Families v. Dep’t of Hum. Servs., 202 A.3d 155, 163-64

(Pa. Cmwlth. 2019).

18

U.S. CONST. amend. XIV.

19

“In the free exercise area, two threshold requirements must be met before particular

beliefs may be accorded First Amendment protection. First, the beliefs avowed must be ‘sincerely

held,’ and second, the beliefs must be ‘religious in nature, in the claimant’s scheme of things.’”

Monroe v. Unemployment Comp. Bd. of Rev., 535 A.2d 1222, 1225 (Pa. Cmwlth. 1988) (quoting

Africa v. Commonwealth of Pa., 662 F.2d 1025, 1030 (3d Cir. 1981)). The Department did not

deny the exception in the instant case on the basis that Petitioner’s or his family’s beliefs are not

sincerely held or are not religious in nature.

14

Court has “repeatedly held that a [s]tate violates the Free Exercise Clause when it

excludes religious observers from otherwise available public benefits.” Carson as

next friend of O. C. v. Makin, 596 U.S. 767, 778 (2022). Therefore, “a person may

not be compelled to choose between the exercise of a First Amendment right and

participation in an otherwise available public program.” Thomas v. Rev. Bd. of Ind.

Emp. Sec. Div., 450 U.S. 707, 716 (1981).

As the [Supreme] Court put it more than 50 years ago, “[i]t

is too late in the day to doubt that the liberties of religion

and expression may be infringed by the denial of or

placing of conditions upon a benefit or privilege.”

Sherbert [v. Verner], 374 U.S. [398,] 404 . . . [(1963)];[20]

see also McDaniel, 435 U.S.[] at 633 . . . (Brennan, J.,

concurring in judgment) (the “proposition - that the law

does not interfere with free exercise because it does not

directly prohibit religious activity, but merely conditions

eligibility . . . on its abandonment - is . . . squarely rejected

by precedent”).

Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 463 (2017).

“To determine whether religious rights are unconstitutionally

impinged, there are no bright line tests, but instead an analysis is made of the statute

[or government action] at issue and a balancing of the interests involved.” Kocher,

722 A.2d at 759.

Depending on the nature of the challenged law or

government action, a free exercise claim can prompt either

strict scrutiny or rational basis review. If a law is “neutral”

and “generally applicable,” and burdens religious conduct

only incidentally, the Free Exercise Clause offers no

protection. [See Emp. Div., Dep’t of Hum. Servs. of Or. v.

Smith, 494 U.S. 872 (1990)].[21] . . . On the other hand, if

20

Sherbert has been abrogated on other grounds. See Holt v. Hobbs, 574 U.S. 352 (2015).

21

Until the U.S. Supreme Court decided Smith in 1990, it (and, consequently, lower courts)

consistently interpreted the Free Exercise Clause to require state officials to justify even incidental

burdens on religious free exercise solely under strict scrutiny. See Fulton; see also Kentucky v.

Yellen, 54 F.4th 325 (6th Cir. 2022). A divided Smith Court created the new test under which

15

the law is not neutral . . . or is not generally applicable . . .,

strict scrutiny applies and the burden on religious conduct

violates the Free Exercise Clause unless it is narrowly

tailored to advance a compelling government interest.

[See Lukumi].

Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 165 (3d Cir. 2002);

see also Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 526 (2022) (“Failing either

the neutrality or general applicability test is sufficient to trigger strict scrutiny. See

Lukumi, 508 U.S. at 546 . . . .”); Fulton; Religious Rights Found. of PA v. State Coll.

Area Sch. Dist., ___ F. Supp. ___, 2023 WL 8359957 (M.D. Pa. No. 23-CV-01144,

filed Dec. 1, 2023).22

A government policy will not qualify as neutral if it is

“specifically directed at . . . religious practice.” Smith, 494

U.S. at 878 . . . . A policy can fail this test if it

“discriminate[s] on its face,” or if a religious exercise is

generally applicable, religion-neutral laws that have the effect of burdening a particular religious

practice need only survive rational basis review rather than strict scrutiny. Although the Smith test

has received substantial judicial criticism, it remains binding on the courts because the Supreme

Court has declined to overturn it. See Fulton.

Notably, “[i]n Smith, the Supreme Court [] stated that its decision did not dilute the

authority of Congress and states to enact laws that protect its citizens’ right[s] to freely practice

their religious beliefs.” Ridley Park United Methodist Church v. Zoning Hearing Bd. Ridley Park

Borough, 920 A.2d 953, 958 (Pa. Cmwlth. 2007). Congress accepted the Supreme Court’s

invitation and enacted the Religious Land Use and Institutionalized Persons Act (prohibiting

implementation of regulations on land use and on persons confined to institutions in a manner that

places a substantial burden on the religious exercise unless the burden furthers a compelling

governmental interest and does so by the least restrictive means), 42 U.S.C. § 2000cc-2000cc-5.

See id. Pennsylvania’s General Assembly enacted the RFPA. See id.

22

“Generally, decisions of federal district courts and courts of appeals

are not binding on this Court, . . . but they may have persuasive

value.” GGNSC Clarion LP v. Kane, 131 A.3d 1062, 1069 n.15 (Pa.

Cmwlth. 2016). “Unreported federal court decisions may also have

persuasive value.” Nagle v. TrueBlue, Inc., 148 A.3d 946, 959 n.15

(Pa. Cmwlth. 2016).

Austin v. Lehigh & Northampton Transp. Auth., 309 A.3d 252, 259 n.6 (Pa. Cmwlth. 2024).

16

otherwise its “object.” Lukumi, 508 U.S. at 533 . . . ; see

also Smith, 494 U.S. at 878 . . . .

Kennedy, 597 U.S. at 526. Here, “[the Department’s 40/60 Rule is] facially neutral,

and there is no evidence of a discriminatory history or motivation in drafting [it].

Although a facially neutral policy can fail to be neutral in application, th[is C]ourt

need not reach th[at] question because the [40/60 Rule] is not generally

applicable[.]” Religious Rights Found. of PA, 2023 WL 8359957, at *5; see also

Tenafly.23

In 2002, in response to Smith, the General Assembly enacted the RFPA

to restore the long standing strict scrutiny test - compelling interest and least

restrictive means - for free exercise case analyses. See Ridley Park United

Methodist Church v. Zoning Hearing Bd. Ridley Park Borough, 920 A.2d 953, 959

(Pa. Cmwlth. 2007). Accordingly, Section 4 of the RFPA also provides:

(a) General rule.--Except as provided in subsection (b),

an agency shall not substantially burden a person’s free

exercise of religion,[24] including any burden which results

from a rule of general applicability.

23

“A government policy will fail the general applicability requirement if it ‘prohibits

religious conduct while permitting secular conduct that undermines the government’s asserted

interests in a similar way,’ or if it provides ‘a mechanism for individualized exemptions.’”

Kennedy, 597 U.S. at 526 (quoting Fulton, 593 U.S. at 534). “[A] law must satisfy strict scrutiny

if it permits individualized, discretionary exemptions because such a regime creates the

opportunity for a facially neutral and generally applicable standard to be applied in practice in a

way that discriminates against religiously motivated conduct.” Blackhawk v. Pa., 381 F.3d 202,

209 (3d Cir. 2004); see also Fulton, 593 U.S. at 624 (“Exceptions for one means strict scrutiny for

all.” (Gorsuch, J., concurring)); Religious Rights Found., 2023 WL 8359957, at *5 (“[T]he Free

Exercise Clause is not offended where the government refuses to provide special treatment.”).

Because strict scrutiny applies “where the [s]tate has in place a system of individual exemptions,

it may not refuse to extend that system to cases of ‘religious hardship’ without [a] compelling

reason.” Fulton, 593 U.S. at 534 (quoting Smith, 494 U.S. at 884).

24

Section 3 of the RFPA defines free exercise of religion as “[t]he practice or observance

of religion under section 3 of [a]rticle I of the Constitution of Pennsylvania.” 71 P.S. § 2403.

Article I, section 3 of the Pennsylvania Constitution states:

17

(b) Exceptions.--An agency may substantially burden a

person’s free exercise of religion if the agency proves, by

a preponderance of the evidence, that the burden is all of

the following:

(1) In furtherance of a compelling interest of the agency.

(2) The least restrictive means of furthering the

compelling interest.

71 P.S. § 2404. Section 5(a) of the RFPA authorizes: “A person whose free exercise

of religion has been burdened or likely will be burdened in violation of [S]ection 4

[of the RFPA] may assert that violation against an agency as a claim or defense in

any judicial or administrative proceeding.” 71 P.S. § 2405(a). Thus, the RFPA

likewise prohibits the state from imposing substantial burdens on the free exercise

of religion without a compelling interest and a showing that the least restrictive

means have been employed to satisfy that interest.

Petitioner argues that the Department’s refusal to grant him an

exception to the 40/60 Rule infringes upon his constitutional right to freely exercise

his religion by forcing him to choose between complying with his family’s religious

practices and foregoing some services to which he is entitled. Petitioner adds that,

because the Department has made an exception for one individual and also generally

for families that wished to refuse unrelated caregivers during the COVID-19

pandemic, the 40/60 Rule cannot withstand strict scrutiny because the Department

All men have a natural and indefeasible right to worship Almighty

God according to the dictates of their own consciences; no man can

of right be compelled to attend, erect or support any place of

worship, or to maintain any ministry against his consent; no human

authority can, in any case whatever, control or interfere with the

rights of conscience, and no preference shall ever be given by law

to any religious establishments or modes of worship.

PA. CONST. art. I, § 3. Because the Pennsylvania Constitution does not afford broader protection

than the Free Exercise Clause, this Court may follow federal precedent when considering free

exercise claims. See Meggett v. Pa. Dep’t of Corr., 892 A.2d 872 (Pa. Cmwlth. 2006).

18

cannot demonstrate that it has a compelling interest in denying Petitioner an

exception so that he can claim all of the services he needs without violating his

religion.

Petitioner also asserts that the Department’s refusal to grant him an

exception to the 40/60 Rule violates the RFPA, where he has shown by clear and

convincing evidence that placement of an unrelated caregiver in his home would

burden his and his family’s religious exercise, and the Department cannot show that

its denial of an exception is the least burdensome way to serve a compelling interest.

However, before this Court may reach whether the Department had a

compelling interest in denying Petitioner an exception,25 Petitioner “first must

25

The Department clearly has a compelling interest in meeting the needs of eligible

individuals receiving long-term care supports and services in their home or community rather than

in an institutional setting, particularly by paying Petitioner’s family members for up to 60 hours

of the care they provide for him. However, the Department’s specific motive for implementing

the 40/60 Rule is not clear in this record, and the Department does not offer a compelling interest

argument for its refusal to grant an exception to the 40/60 Rule in Petitioner’s case. ALJ Logan-

Thomas identified what could broadly be considered a compelling reason to deny a permanent

exception; namely, that Mother’s and Sister’s lack of rest could negatively affect the quality of

service they provide for Petitioner. See ALJ Logan-Thomas’s Adj. at 19 (C.R. at 213). ALJ

Logan-Thomas reasoned:

[Mother] cares for [Petitioner] from 6:00 [a.m.] to 10:00 [p.m]. She

is only paid from 6:00 [a.m.] to 5:00 [p.m]. She is unpaid from 5:00

[p.m.] to 10:00 [p.m]. She goes to bed around 11:00 [p.m.] and

wakes up for prayer around 5:45 [a.m]. This means that each night

[Mother] is getting less than [seven] hours of sleep. Similarly,

[Sister] works at her day job from 8:30 [a.m.] to 4:30 [p.m.], after

which she goes to her home to sleep. [Sister] arrives at [Mother’s]

home in time for her [] shift with [Petitioner], which runs from 10:00

[p.m.] to 6:00 [a.m]. This means, that without incorporating time

for [Sister] to get herself from her day job to her home and later in

the evening from her home to [Mother’s] home, [Sister] is sleeping

for approximately five (5) hours per day/night. The schedules of

both women are quite demanding, and the assistance of another aide

would be helpful. Lack of adequate rest can adversely affect the

functioning of human beings.

19

establish that the application of [the 40/60 Rule] substantially burdens [his] free

exercise of religion.” St. Elizabeth’s Child Care Ctr., 989 A.2d at 55; see also

Commonwealth v. Stewart, 690 A.2d 195 (Pa. 1997) (after a plaintiff establishes that

government action substantially burdens his free exercise of religion, the

government must establish that the burden advances a compelling interest and is the

least restrictive means); S. Hills Cath. Acad. v. Dep’t of Hum. Servs., 308 A.3d 915

(Pa. Cmwlth. 2024) (whether application of a Department regulation substantially

burdens a constitutional right under the religious practice clauses in the First

Amendment is a threshold matter).

The U.S. Court of Appeals for the Third Circuit (Third Circuit Court)

declared:

In order to establish a substantial burden, [p]laintiffs must

. . . allege state action that is either compulsory or

coercive in nature. See Lee [v. Weisman], 505 U.S. [577,]

621 . . . [(1992)] (a Free Exercise Clause violation is

predicated on coercion); see also Lyng v. [Nw.] Indian

Cemetery Protective Ass’n, 485 U.S. 439, 447-[]51 . . .

(1988); Bowen v. Roy, 476 U.S. 693, 704-[]05 . . . (1986);

. . . Schempp, 374 U.S. [at] 223 . . . (stating that “ . . . it is

necessary in a free exercise case to show the coercive

effect of the enactment as it operates against him in the

practice of his religion[]”); see also Mozert v. Hawkins

Id. at 18-19 (C.R. at 212-213).

While Petitioner’s safety is undoubtedly an interest of the greatest importance, and the

Department may have intended the 40/60 Rule to encourage families to allow others to provide

breaks in 24-hour care for that reason, the Department’s 40/60 Rule is not narrowly tailored to

serve that interest. Despite that the 40/60 Rule states that HCBS recipients “may receive no more

than 60 hours per week of authorized [HCBS] . . . from all relatives[,]” C.R. at 86 (emphasis

added), and “[t]he 60-hour limit applies only to who delivers the services to a participant,” FOF 6

(C.R. at 200), in reality, it merely limits the number of hours relatives are eligible to be paid for

providing such care. See FOF 4 (C.R. at 200); see also Jalil, slip op. at 24 (“The only limitation

imposed by [the 40/60 Rule] relates to the number of hours for which [Petitioner’s] family

members may be reimbursed for providing [such] services[.]”). Thus, Mother and Sister can and,

as Mother testified, they do intend, in the absence of an exception, to provide all of Petitioner’s

care, despite being paid for only 60 hours. See C.R. at 516-517, 521, 534.

20

C[nty.] Bd. of Educ., 827 F.2d 1058, 1066 (6th Cir.1987)

(stating that “[i]t is clear that governmental compulsion

either to do or refrain from doing an act forbidden or

required by one’s religion, or to affirm or disavow a belief

forbidden or required by one’s religion, is the evil

prohibited by the Free Exercise Clause[]”). The concept

is a simple one. “In essence, the state may not compel an

individual to act contrary to his religious beliefs.” Arnold

[v. Bd. of Educ. of Escambia Cnty.], 880 F.2d [305,] 314

[(11th Cir. 1989)].[26]

Anspach ex rel. Anspach v. City of Phila., Dep’t of Pub. Health, 503 F.3d 256, 272

(3d Cir. 2007) (emphasis added). The Pennsylvania Superior Court agreed. See

Kaur v. Singh, 259 A.3d 505 (Pa. Super. 2021). This Court has quoted federal free

exercise law interpreting that “[a] substantial burden is one that ‘necessarily bears

direct, primary, and fundamental responsibility for rendering religious exercise . . .

effectively impracticable.’” Ridley Park, 920 A.2d at 961 n.15 (quoting C.L. for

Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003)). “A mere

inconvenience is not enough to meet the substantial burden requirement. Braunfeld

v. Brown, 366 U.S. 599 . . . (1961).” Id.

In Section 3 of the RFPA, the Pennsylvania General Assembly

similarly defines “substantially burden” as

[a]n agency action which does any of the following:

(1) Significantly constrains or inhibits conduct or

expression mandated by a person’s sincerely held

religious beliefs.

(2) Significantly curtails a person’s ability to express

adherence to the person’s religious faith.

26

Arnold was overruled on other grounds by Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit, 507 U.S. 163 (1993). See Eknes-Tucker v. Governor of Alab.,

80 F.4th 1205 (11th Cir. 2023).

21

(3) Denies a person a reasonable opportunity to engage

in activities which are fundamental to the person’s

religion.

(4) Compels conduct or expression which violates a

specific tenet of a person’s religious faith.

71 P.S. § 2403 (emphasis added). Section 5(f) of the RFPA specifies that the person

making such claim or defense must show the infringement by clear and convincing

evidence.27 See 71 P.S. § 2405(f); see also Commonwealth v. Parente, 956 A.2d

1065 (Pa. Cmwlth. 2008).

Importantly,

[t]here is no substantial burden if the governmental action

does not coerce the individuals to violate their religious

beliefs or deny them the “rights, benefits, and privileges

enjoyed by other citizens” - even if “the challenged

[g]overnment action would interfere significantly with

private persons’ ability to pursue spiritual fulfillment

according to their own religious beliefs.” Lyng, 485 U.S.

at 449 . . . . Nor can a party use RF[P]A to “require the

[g]overnment to conduct its own internal affairs in ways

that comport with the religious beliefs of particular

citizens.”[28] [Roy], 476 U.S. at 699 . . . .[29]

27

“The clear and convincing standard requires evidence that is so clear, direct, weighty,

and convincing as to enable the [trier of fact] to come to a clear [conclusion], without hesitancy,

of the truth of the precise facts [in] issue.” Verizon Pa. LLC v. Pa. Pub. Util. Comm’n, 303 A.3d

219, 234 (Pa. Cmwlth. 2023) (quoting Commonwealth v. Maldonado, 838 A.2d 710, 715 (Pa.

2003) (citation and quotations omitted)).

28

If the Department created an exception to the 40/60 Rule for Petitioner specifically, or

Muslims in general, it would run afoul of the Free Exercise Clause by targeting religious conduct

for distinctive treatment.

29

Just as the [g]overnment may not insist that appellees engage in any

set form of religious observance, so appellees may not demand that

the [g]overnment join in their chosen religious practices . . . . “[T]he

Free Exercise Clause is written in terms of what the government

cannot do to the individual, not in terms of what the individual can

extract from the government.” Sherbert . . . , 374 U.S. at 412

(Douglas, J., concurring).

Roy, 476 U.S. at 699-700.

22

Real Alternatives, Inc. v. Sec’y Dep’t of Health & Hum. Servs., 867 F.3d 338, 357

(3d Cir. 2017). “[A]lthough religious freedom has an important place in our scheme

of ordered liberty, it also steadfastly maintains that claims of religious convictions

do not automatically entitle a person to fix unilaterally the conditions and terms of

dealings with the government.” Kocher, 722 A.2d at 759 (footnote omitted).

Turning to the instant matter, substantial record evidence supports that

the Department’s implementation of the 40/60 Rule “did not change the number of

services available to meet [Petitioner’s] assessed needs.” FOF 6 (C.R. at 200). “The

degree to which [Mother and Sister] are reimbursed for providing [HCBS and

Companion] services does not reduce the amount, duration, or scope of services to

which [Petitioner] could avail [him]self, if []he so chose.” Jalil v. Dep’t of Hum.

Servs. (Pa. Cmwlth. No. 1856 C.D. 2019, filed Feb. 22, 2021), slip op. at 14.

Mother’s decision, on Petitioner’s behalf, “to have [HCBS and Companion] services

performed exclusively by h[is] family members does not translate into a refusal by

[the Department] to provide them.” Jalil, slip op. at 14. Further, substantial record

evidence supports that Islamic law allows an unrelated, non-Islamic male aide to

assist Petitioner outside Mother’s presence (i.e., either outside the home or when

Mother leaves the home to attend to personal business), before and after which

Mother could provide Petitioner’s necessary intimate personal care. See C.R. at 537-

538, 541-542. In addition, or instead, Mother could enroll Petitioner in a day

program, like the Center he previously attended, where staff could provide up to 30

hours of care for Petitioner in a group setting without infringing on his religion.30

30

Mother’s concern for Petitioner’s religious standing and safety in the present context is

inconsistent with evidence that, in the past, Petitioner successfully availed himself of the Center’s

program where staff were able to safely provide his care without infringing upon his right to freely

exercise his religion. The Center honored Mother’s religious restrictions, and Mother did not

previously express concern that Petitioner missing the 1:00 p.m. prayer when he was at the Center

violated Islamic law or was detrimental to his religious well-being. The sole reason Petitioner

23

Thus, the only thing that changed since the Department implemented the 40/60 Rule

is Mother’s decision that Petitioner shall not participate in all services available to

him because only she and Sister alone can provide safe, religiously based care for

Petitioner.

In Jalil,31 where the issue before this Court was also whether the

Department’s failure to grant an exception to the 40/60 Rule threatened a

Consolidated Waiver recipient’s safety, health, and religious beliefs, this Court

affirmed the BHA’s decision denying the exception, reasoning:

With regard to whether [the Department’s] decision

denying [the female r]ecipient’s request for an exception

to the 40/60 Rule violated her [Islamic] religious beliefs,

the ALJ reviewed the testimony presented by [the m]other

and [the f]ather and determined that their decision to

provide all of [the r]ecipient’s [Consolidated] Waiver []

services was a matter of personal preference. . . .

To that end, the record supports the ALJ’s conclusion that

personal preference guided [the r]ecipient’s request for an

exception to the 40/60 Rule. Although both her parents

expressed concern with the quality of care provided by

[the r]ecipient’s previous nurses and aides, they

acknowledged that unrelated female aides cared for [the

r]ecipient in the home after school until bedtime. . . . [The

f]ather’s speculation that a non-Arabic speaking aide

could not effectively communicate with [the r]ecipient is

belied by his praise of an English-speaking nurse who

cared for her over the course of several years.

It is worth noting that the complication presented here

implicates [the f]ather’s exercise of his religious beliefs,

not [the r]ecipient’s. [Consolidated] Waiver [] services are

stopped going to the Center was the onset of the COVID-19 pandemic, and he has not re-enrolled

thereafter because the Center did not reopen Petitioner’s program.

31

The only significant difference between the instant fact pattern and Jalil is that the

mother and the father in Jalil both care for the recipient and her disabled brother full time and,

since both parents are almost always present in the home together, there were fewer chances that

the mother or the father would be alone with someone of the opposite gender in violation of Islamic

law.

24

provided to [the r]ecipient, not [the f]ather, and both [the

f]ather and [the m]other agreed that Islamic law does not

prohibit [the female r]ecipient receiving care from an

unrelated female aide. The overarching theme to [the

m]other’s and [the f]ather’s testimony was that they

provide the best care for [the r]ecipient. The ALJ’s

conclusion that personal preference, and not religious

concerns, drove their decision to provide [the r]ecipient’s

[Consolidated] Waiver [] services, is amply supported by

the record.

Jalil, slip op. at 15-16. The record evidence in the instant case similarly supports

that Mother’s preference, rather than a burden on the free exercise of Petitioner’s

religion, is the reason for Petitioner’s permanent 40/60 Rule exception request.

The Department’s implementation of the 40/60 Rule does not exclude

Petitioner from receiving benefits of a public program, nor are Mother and Sister

precluded from continuing to provide Petitioner’s care if that is Petitioner’s choice.

That Mother and Sister will no longer be paid for providing more than 60 hours of

Petitioner’s care imposes no legally cognizable burden on Petitioner’s religious

rights. Even if Mother’s and Sister’s religious rights were at issue here, the U.S.

Supreme Court has held that some financial sacrifice or inconvenience does not

necessarily burden religious exercise. See Braunfeld; see also Lighthouse Inst. for

Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007).

Because Petitioner has not shown by clear and convincing evidence that

the 40/60 Rule “[s]ignificantly constrains or inhibits conduct or expression mandated

by [his] sincerely held religious beliefs[,]” “[s]ignificantly curtails [his] ability to

express adherence to [his] faith[,]” “[d]en[ies] [him] reasonable opportunity to

engage in activities . . . fundamental to [his] religion[,]” nor “[c]ompels conduct or

expression which violates a specific tenet of [his] religious faith[,]” 71 P.S. § 2403,

he has failed to meet his initial burden of proving that the application of the 40/60

25

Rule substantially burdens his free exercise of religion under the Free Exercise

Clause or the RFPA.

Conclusion

Based on the foregoing, the Department properly denied Petitioner’s

request for a permanent exception to the 40/60 Rule. Accordingly, this Court affirms

Secretary Snead’s Final Order.

_________________________________

ANNE E. COVEY, Judge

26

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mohamad Alsyrawan, :

Petitioner :

:

v. :

:

Department of Human Services, : No. 111 C.D. 2023

Respondent :

ORDER

AND NOW, this 20th day of May, 2024, Acting Secretary of Human

Services Meg Snead’s January 9, 2023 Final Order is affirmed.

_________________________________

ANNE E. COVEY, Judge