# M. Alsyrawan v. DHS

> Commonwealth Court of Pennsylvania · May 20, 2024

URL: https://www.frixlaw.com/law-library/cases/9971910

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** May 20, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Covey, J.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9971910. Public record. Not legal advice.