Petition of M.P.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Department of Health and Human Services
No. 2022-0181

PETITION OF M.P.
(New Hampshire Department of Health and Human Services)

Argued: March 30, 2023
Opinion Issued: June 7, 2023

Disability Rights Center-NH, Inc., of Concord (Sarah J. Jancarik on the
brief, and Mia A. Fry orally), for the petitioner.

John D. MacIntosh, P.C., of Concord (John D. MacIntosh on the brief
and orally), for the respondent.

Community Services Network, Inc., of Concord (Thomas G. Bunnell on
the brief and orally), as amicus curiae.

DONOVAN, J. The petitioner, M.P., seeks review by way of a petition for
writ of certiorari of a Department of Health and Human Services Administrative
Appeals Unit (AAU) decision finding him ineligible to receive developmental
disability (DD) services pursuant to RSA chapter 171-A (2022). The petitioner
argues that: (1) the AAU’s determination that he does not have a qualifying DD
pursuant to RSA 171-A:2, V was an unsustainable exercise of discretion; (2)
the AAU erred in admitting certain testimony and considering the petitioner’s
Not Guilty by Reason of Insanity (NGRI) status; and (3) the AAU’s failure to
timely hold a hearing and issue a decision violated the Medicaid Act and his
due process rights under the Federal and New Hampshire Constitutions. We
conclude that the AAU’s eligibility decision is sustainable and that the
contested testimony was immaterial and did not prejudice the petitioner.
Additionally, despite the significant delay that the petitioner experienced
waiting for a hearing and a final decision, the delay was largely attributable to
the global pandemic and the protective measures imposed in an effort to
mitigate the spread of COVID-19. Pursuant to the federal authority relied upon
by the petitioner, these circumstances constitute an “emergency” beyond the
AAU’s control, thereby exempting the AAU from the statute’s scheduling
requirement. Accordingly, we affirm.1

I. Facts

The following facts were recited in the AAU’s order or appear in the
record. The petitioner has a complicated and lengthy medical history that
spans from his early childhood to the present and includes numerous and
often conflicting diagnoses. Relevant to this case, the petitioner has
schizophrenia, but the parties disagree as to whether the petitioner also has
autism spectrum disorder (ASD). In 2010, the petitioner was adjudicated NGRI
and committed to the Secure Psychiatric Unit, where he resided until 2019
when he “stepped down” to a less-restrictive commitment at the New
Hampshire Hospital (NHH). In 2020, the petitioner applied for DD services
pursuant to RSA chapter 171-A. The application identified diagnoses for both
ASD and schizophrenia. The respondent, a local area agency that provides DD
services, reviewed the application and concluded that the petitioner was
ineligible for DD services and denied his application, reasoning that he did not
demonstrate that he had a qualifying DD pursuant to RSA 171-A:2, V. In April
2020, the petitioner appealed this decision to the AAU.

Between June 2020 and May 2021, the AAU held six hearings to
determine whether the merits hearing could be held remotely, either
1 In its briefing order, this court asked the parties to address three questions, including: (1)

whether the superior court found by clear and convincing evidence that the petitioner would “no
longer create a substantial risk of bodily injury to himself or another person or serious damage to
property of another” if “conditionally discharged under conditions the court finds appropriate,”
RSA 651:11-a, IV (2016); (2) if the superior court had not made a finding described in (1), whether
the AAU had jurisdiction to decide petitioner’s appeal; and (3) if the superior court had not made a
finding described in (1), whether the petitioner’s eligibility for DD services is ripe for adjudication.
The parties either agree, or do not dispute, that, when the AAU considered the petitioner’s appeal,
the superior court had not made a finding with respect to the first question. In fact, in its final
decision, the AAU observed that the petitioner had not sought a conditional discharge. We
conclude that the AAU had jurisdiction to hear the appeal and that the case is ripe for this court’s
review. Accordingly, we do not address these issues in the body of this opinion.

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telephonically or by video conference, or in person. At that time, the AAU was
scheduling only telephonic hearings, rather than in-person hearings, due to
measures imposed to address the COVID-19 pandemic. Both parties agreed,
however, that a telephonic hearing was not feasible given the nature of the case
and the petitioner’s disabilities. Despite the petitioner’s numerous requests,
the AAU repeatedly declined to hold a video conference hearing.

An in-person hearing on the merits was eventually scheduled for June
2021, after COVID-19 vaccines became available. The hearing took place over
three days in June and August and included numerous witnesses and
hundreds of pages of exhibits. Throughout the hearing, the parties focused
their arguments upon conflicting reports prepared by medical professionals as
to whether the petitioner had ASD. The petitioner relied upon the numerous
medical providers who, over the last seventeen years, had diagnosed him with
ASD. The petitioner also introduced the testimony of two of his treatment
providers at NHH, who corroborated symptoms consistent with his prior ASD
diagnoses. For its part, the respondent introduced the testimony of Dr. Trudel,
a clinical neuropsychologist and licensed psychologist, who rebutted the basis
for the petitioner’s prior ASD diagnoses and instead opined that the petitioner
suffered from schizophrenia. The respondent also elicited testimony from a
consultant with experience assisting New Hampshire agencies that provide
services to high-risk individuals with intellectual and developmental
disabilities.

The AAU issued a decision in December 2021 upholding the respondent’s
determination. The AAU found that the petitioner did not establish by a
preponderance of the evidence that he had a qualifying DD, and, accordingly,
he did not demonstrate his eligibility to receive RSA chapter 171-A services.
The AAU “gave great weight” to the testimony and opinion of Dr. Trudel who,
the AAU found, “is well credentialed” and “presented as knowledgeable, candid,
and thorough.” The AAU gave “[l]ess weight” to the findings of a psychiatrist,
who, in 2009, was the first person to diagnose the petitioner with Asperger’s
syndrome, a form of autism. The AAU reasoned that in reaching his opinion,
the psychiatrist did not conduct any standardized testing, his report contained
concerning internal inconsistencies, and the petitioner probably would not
have met the diagnostic criteria for Asperger’s. The AAU explained that for
these reasons, “in this case, [it] cannot wholeheartedly accept the doctor’s
Asperger’s diagnosis as being supported by the other evidence in the record.”
(Emphasis omitted.)

The AAU also declined to credit several subsequent reports and
evaluations that concurred with the petitioner’s autism diagnosis. The AAU
recognized that certain symptoms of schizophrenia may replicate symptoms of
ASD and found that the petitioner’s ASD diagnoses were based on the
observation of such symptoms. The AAU also accepted the respondent’s

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“bootstrapping” theory that once the psychiatrist diagnosed the petitioner with
Asperger’s in 2009, subsequent providers and evaluators accepted that
diagnosis as correct. The petitioner moved to reconsider, which the AAU
denied. This petition for writ of certiorari followed.

II. Analysis

Judicial review of an AAU decision is available only by way of a petition
for writ of certiorari. Petition of Sawyer, 170 N.H. 197, 202 (2017). Review on
certiorari is an extraordinary remedy, usually available only in the absence of a
right to appeal, and only at the discretion of the court. Id. We exercise our
power to grant such writs sparingly and only when to do otherwise would
result in substantial injustice. Id. Our review of an AAU decision on a petition
for writ of certiorari entails examining whether the AAU acted illegally with
respect to jurisdiction, authority or observance of the law or unsustainably
exercised its discretion or acted arbitrarily, unreasonably or capriciously. Id.

A. RSA Chapter 171-A Eligibility

We begin by addressing the substance of the parties’ arguments
concerning the interplay between NGRI acquittees subject to court supervision
under RSA 651:11-a (2016) and individuals eligible for services under the DD
system set forth in RSA chapters 171-A and 171-B (2022). Whether the
petitioner is eligible for DD services requires an analysis of the relationship
between two statutory schemes: one that governs orders of committal, see RSA
ch. 651 (2016), and one that governs the DD system, see RSA chs. 171-A &
171-B.

RSA chapter 651 governs orders of committal. A court’s order of
committal for an NGRI acquittee is valid for five years. RSA 651:11-a, I. To
renew an order of committal, a judicial hearing must be held, and “when the
court is satisfied by clear and convincing evidence that the person suffers from
a mental disorder and that it would be dangerous for him to go at large, the
court shall renew the order of committal.” Id. Even if the court renews the
order of committal, it may order a conditional discharge if it “finds by clear and
convincing evidence that the person’s release under certain conditions . . .
would no longer create a substantial risk of bodily injury to himself or another
person or serious damage to property of another.” RSA 651:11-a, IV(a). The
court may order a conditional discharge:

[U]nder conditions the court finds appropriate, including any prescribed
regimen of medical, psychiatric, or psychological care or treatment that
has been prepared for him, which has been certified to the court as
appropriate by the commissioner of the department of corrections or his

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 designee or by the director of another facility not within the department
of corrections in which he is committed, and which has been found by
the court to be appropriate . . . .

RSA 651:11-a, IV(a)(1).

In turn, RSA chapter 171-A is designed to “maintain, implement and
coordinate a comprehensive service delivery system for developmentally
disabled persons.” RSA 171-A:1; see also Petition of Sawyer, 170 N.H. at 198-
99. This system is based upon the policy that “persons with developmental
disabilities and their families be provided services that emphasize community
living and programs to support individuals and families.” RSA 171-A:1.
Participation is voluntary, unless the individual is involuntarily admitted
pursuant to RSA chapter 171-B — a pathway only available for persons
deemed not competent to stand trial. RSA 171-A:5; RSA 171-B:2. Persons
voluntarily participating in the system may, at any time, “seek a change in
services or withdraw entirely from the service delivery system.” RSA 171-A:7;
see also N.H. Admin. R., He-M 310.06. To receive voluntary developmental
services, an individual must apply through the area agency serving his or her
region. RSA 171-A:6, I; N.H. Admin. R., He-M 503.04(b).

The petitioner contends that an NGRI acquittee subject to court
supervision is also eligible to receive DD services pursuant to RSA chapter 171-
A. He observes that neither RSA chapter 171-A nor RSA 651:11-a expressly
excludes persons adjudicated NGRI from the definition of DD or from receiving
DD services. In contrast, the respondent and the amicus curiae contend that
NGRI acquittees may not receive DD services until they are unconditionally
discharged. In other words, they argue that an NGRI acquittee cannot apply
for voluntary DD services “for the purported purpose of having the Superior
Court commit [the acquittee], via conditional discharge order, to the voluntary
developmental services system under RSA 171-A.” They reason that because
the developmental services program is voluntary, “the area agency system has
no legal authority to require clients to comply with treatment and/or security
considerations.” They also argue that the petitioner has no pathway to access
involuntary developmental services under RSA chapter 171-B because it is
expressly reserved for individuals found incompetent to stand trial. See RSA
171-A:5; RSA 171-B:2.

The parties’ dispute demonstrates that the statutory scheme is unclear
as to whether an NGRI acquittee subject to court supervision under RSA
651:11-a can access the developmental services system. On the one hand, the
policy behind the developmental services system appears to support providing
services and programs for any person with a developmental disability,
regardless of their NGRI status. See RSA 171-A:1; see also N.H. Admin. R., He-

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M 503.03(a) (“[A]ny person whose state of residence is New Hampshire and who
has a developmental disability shall be eligible for services.”). Moreover,
neither RSA chapter 651 nor RSA chapter 171-A expressly excludes NGRI
acquittees from utilizing DD services. Although an individual seeking access
into the developmental services system must apply voluntarily, see RSA 171-
A:5, I, this requirement, on its face, does not necessarily foreclose an NGRI
acquittee from voluntarily seeking services.

On the other hand, the voluntary nature of the developmental services
system also means that, except for those admitted involuntarily pursuant to
RSA chapter 171-B, the participant may opt to change or terminate services at
any time, and the area agency lacks enforcement authority to mandate
compliance. RSA 171-A:7; see also N.H. Admin. R., He-M 310.06. Therein lies
the dilemma. For example, if a court orders an NGRI acquittee, as a condition
of the acquittee’s conditional discharge, see RSA 651:11-a, IV(a), to participate
in the developmental services system through RSA chapter 171-A, and the
individual refuses to comply with treatment, the area agency cannot enforce
the acquittee’s compliance. It is worth noting, however, that the court may
take action if the individual “fail[s] to comply with the conditions imposed by
the court.” RSA 651:11-a, IV(c). Moreover, when an NGRI acquittee applies
voluntarily to receive DD services, his or her participation may not be entirely
voluntary if the court ordered it as a condition of the acquittee’s conditional
discharge. The fact that the statute includes a pathway for involuntary
participation — but such pathway is limited to persons deemed not competent
to stand trial — implies that the legislature already considered who can
participate involuntarily in the developmental services system and opted to
exclude NGRI acquittees. See RSA 171-B:2. Although these observations do
not factor into our analysis in this particular case, the legislature may wish to
consider this apparent gap in the statutory scheme and address whether a
court may order an NGRI acquittee’s participation in the developmental
services system as part of the acquittee’s conditional discharge.

Even if we assume that persons with NGRI status are eligible for services
pursuant to RSA chapter 171-A, there is no dispute that such individuals must
have a qualifying DD to receive such services. See RSA 171-A:5, I; N.H. Admin.
R., He-M 503.03(a); see also RSA 171-A:2, V (defining “[d]evelopmental
disability”). The petitioner argues that the AAU’s finding that he does not have
a qualifying DD pursuant to RSA 171-A:2, V is an “unsustainable exercise of
discretion” because “the overwhelming weight of the evidence . . . demonstrated
that [he] established that he had a DD.” (Emphasis omitted.) Specifically, the
petitioner argues that: (1) the testimony of the petitioner’s two treatment
providers at NHH are due substantial weight; (2) numerous reports and
evaluations presented to the AAU support the opinions of the petitioners’ two
treatment providers that he has ASD; and (3) the AAU’s decision does not rest

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on objective or credible evidence. Given that the petitioner argues that this
standard applies to our review of his challenge, we will assume, for purposes of
this opinion, that the unsustainable exercise of discretion standard applies.

The petitioner has the burden of proving to the AAU, by a preponderance
of the evidence, that he has a qualifying DD pursuant to RSA 171-A:2, V. See
N.H. Admin R., He-C 203.14(h). A qualifying DD includes “a disability . . .
[w]hich is attributable to” autism, but not schizophrenia. RSA 171-A:2, V. A
preponderance of the evidence “means there is sufficient evidence to prove that
a fact or conclusion is not only possible, but also probable.” N.H. Admin R.,
He-C 203.14(a)(2). The “trier of fact is in the best position to measure the
persuasiveness and credibility of evidence and is not compelled to believe even
uncontroverted evidence.” DeLucca v. DeLucca, 152 N.H. 100, 102 (2005)
(quotation omitted). Moreover, “a trier of fact is free to accept or reject an
expert’s testimony, in whole or in part,” and “it is not our task to determine
whether we would have credited one expert over another, or to reweigh the
evidence, but rather to determine whether its findings are supported by
competent evidence in the record.” Appeal of Allen, 170 N.H. 754, 762 (2018)
(quotation omitted).

We first address the petitioner’s argument that the AAU erred in not
granting substantial weight to the evidence submitted by the petitioner’s two
NHH treatment providers. For support, the petitioner cites Appeal of Kehoe for
the proposition that, “[b]ecause a claimant’s treating physicians have great
familiarity with [the claimant’s] condition, their reports must be accorded
substantial weight.” Appeal of Kehoe, 141 N.H. 412, 417 (1996) (quotation
omitted). Kehoe, however, is inapposite to the case at hand. In Kehoe, we
reversed the New Hampshire Compensation Appeals Board’s (CAB) denial of a
claimant’s workers’ compensation benefits. Id. at 414. We explained that the
CAB found that the uncontroverted medical opinions from the claimant’s
providers were “largely conjectural,” but did not cite any medical evidence to
support this conclusion. Id. at 418-19. Instead, the CAB relied on its own lay
opinion as to the reliability of the evidence presented by the claimant. Id.
Here, however, the respondent provided, and the AAU considered, credible
evidence from multiple medical experts challenging the petitioner’s ASD
diagnoses. Thus, the AAU did not base its determination “solely upon its own
lay opinion.” Id. at 419 (quotation omitted).

Next, the petitioner argues that the AAU erred because his prior ASD
diagnoses were supported by numerous other evaluations and reports.
Although the AAU considered this evidence, it nevertheless decided to “grant
great weight” to Dr. Trudel’s testimony and less weight to the opinions of the
other experts. This court does not reweigh the evidence on appeal but, rather,
determines whether factual findings are supported by competent evidence in
the record. See Appeal of Allen, 170 N.H. at 762; see also In re R.M., 172 N.H.

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694, 698 (2019) (explaining that on appeal, we defer to the fact finder to resolve
conflicts in testimony, measure the credibility of witnesses, and determine the
weight to be given to testimony).

Here, we conclude that there is competent evidence in the record to
support the AAU’s determination to accord greater weight to the evidence
rebutting the petitioner’s prior ASD diagnoses. Contrary to the petitioner’s
assertions, several other medical professionals agree with Dr. Trudel’s
conclusion that the petitioner has schizophrenia rather than ASD. There is
also evidence in the record supporting Dr. Trudel’s “bootstrapping” theory,
which the AAU accepted as a competent basis for concluding that the
petitioner’s ASD diagnoses were incorrect.

Multiple medical professionals recognized that the petitioner’s symptoms
are indicative of both ASD and schizophrenia, and several concluded that, in
the petitioner’s case, such symptoms indicate schizophrenia, or other
diagnoses, rather than ASD. It was within the AAU’s discretion to credit these
opinions over those of other professionals who believe such symptoms are
indicative of ASD. See Blagbrough Family Realty Trust v. A & T Forest Prods.,
155 N.H. 29, 38 (2007) (“The resolution of conflicts in the evidence and
determination of issues of fact are functions of the trier of fact.” (quotation
omitted)). Additionally, the AAU found that evidence indicating that the
petitioner engages in repetitive motor movements and has an inflexible
adherence to routine was insufficient to support the factual findings proposed
by the petitioner. In reviewing the record, we agree with the AAU that this
evidence is “not notable.”

The petitioner also argues that the AAU’s denial of several requested
factual findings — specifically diagnoses and evaluation results demonstrating
that he has ASD — is contrary to the evidence. In his view, “[s]uch blatant
denial of facts in evidence further shows the unreasonableness of the AAU’s
decision.” We do not construe the AAU’s decision as rejecting the petitioner’s
prior diagnoses, but, rather, as part of its ultimate determination, previously
detailed, not to credit the prior diagnoses as proof that the petitioner has a
qualifying disability. See Guy v. Town of Temple, 157 N.H. 642, 649 (2008)
(“[T]he interpretation of a tribunal’s order presents a question of law, which we
review de novo.”).

The petitioner next argues that the AAU’s decision does not rest on
objective and credible evidence. The petitioner contends that the AAU erred by
relying on four specific pieces of evidence: (1) Dr. Trudel’s testimony; (2) an
eligibility recommendation by Dr. Kenney regarding the petitioner’s application
to the area agency; (3) a functional assessment conducted by an employee of
the area agency; and (4) a psychiatric evaluation of the petitioner. The
petitioner takes issue with this evidence because Dr. Trudel never met or tested
him, Dr. Kenney neither met nor tested the petitioner and did not testify, and

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the agency employee and psychiatric evaluator also did not testify. The
petitioner asserts that some of their opinions were inconsistent with the
positions of other medical professionals, and a number of these individuals
worked for the respondent. We are unpersuaded.

AAU administrative proceedings are governed by RSA chapter 541-A
(2021) and the New Hampshire Code of Administrative Rules. See RSA 541-
A:16, :30-a to :36 (setting forth rules for adjudicatory proceedings); N.H.
Admin. R., He-C 201.01, 201.02(a). The rules of evidence do not apply in AAU
administrative proceedings. RSA 541-A:33, II. Rather, the AAU may receive
and consider any oral or documentary evidence, although the presiding officer
shall, as necessary, exclude irrelevant, immaterial or unduly repetitious
evidence. Id.; see N.H. Admin. R., He-C 201.05(c)(4). Moreover, as stated
previously, the AAU “is in the best position to measure the persuasiveness and
credibility of evidence,” DeLucca, 152 N.H. at 102 (quotation omitted), and “it is
not our task to determine whether we would have credited one expert over
another,” Appeal of Allen, 170 N.H. at 762. Here, the petitioner is asking us to
do just that. The AAU considered all of the evidence presented and was
apprised of the alleged deficiencies that the petitioner raises. The AAU found
Dr. Trudel to be “well credentialed” and “knowledgeable, candid, and
thorough,” and her testimony “to be credible and more plausible than that of
others.” The AAU also found the evidence that the respondent presented,
including the eligibility recommendation and the functional assessment, to be
“reliable.” Accordingly, we find no reversible error.

B. Admissibility of Witness Testimony

Next, the petitioner argues that the AAU erred in admitting testimony
from one of the respondent’s witnesses and considering the petitioner’s NGRI
status when determining his eligibility to receive DD services under RSA
chapter 171-A. The respondent counters that the contested testimony “was not
consequential,” explaining that “[n]ot only did the hearing officer not rely on
[the witness’s] testimony in her decision, she never even cites his testimony in
her Final Decision or Ruling on [the petitioner’s] Motion for Reconsideration.”
We agree with the respondent.

The witness is a consultant who has experience assisting area agencies
in New Hampshire with providing services to “high-risk” individuals with
intellectual and developmental disabilities, including those deemed
incompetent to stand trial and involuntarily committed under RSA chapter
171-B. He testified that he believes that a person with NGRI status committed
under RSA 651:11-a should not, and indeed cannot, receive DD services until
the court determines that the person is not dangerous and has ordered the
individual conditionally or unconditionally released.

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 The AAU never considered whether, as a matter of law, someone with
NGRI status committed under RSA 651:11-a is eligible to receive DD services.
Rather, the AAU only mentioned the petitioner’s NGRI status and involuntary
committal under RSA chapter 651 in its final order to provide factual context.
Accordingly, the petitioner’s NGRI status did not constitute a basis for the
AAU’s decision that he is ineligible for DD services. We conclude that the
contested testimony was immaterial to the AAU’s determination and did not
prejudice the petitioner. See Appeal of Nationwide Ins. Co., 120 N.H. at 94-95
(1980) (“The doctrine that error must be prejudicial to be reversible applies to
decisions of an administrative agency.”); cf. Slattery v. Norwood Realty, 145
N.H. 447, 450-51 (2000) (“The trial court’s ruling did not rest upon the
challenged testimony, and, after reviewing the record, we are satisfied that the
plaintiff was not prejudiced by its admission.”). Accordingly, we do not need to
address the admissibility of this testimony.

C. Timeliness

Finally, we address the petitioner’s argument that the AAU’s failure to
hold a timely hearing violated the federal Medicaid Act and his due process
rights as protected by the Federal and New Hampshire Constitutions. Here,
the petitioner experienced a near fifteen-month delay from when he first
appealed to the AAU in April 2020 to the first day of his merits hearing in June
2021.

However, the onset of the COVID-19 pandemic and the protective
measures imposed to mitigate the spread of the disease primarily, if not
exclusively, created the delay. Between May 2020 and June 2021, the AAU
held six hearings to assess whether to hold the merits hearing telephonically,
via video conference, or in-person. From the outset, the AAU explained that,
due to the pandemic, only remote, telephonic hearings were being held, and in-
person hearings would not resume until a vaccine became available. Both
parties, however, refused a telephonic hearing accommodation, claiming that it
was not feasible due to the nature of the case and the petitioner’s disabilities.
On numerous occasions, counsel for the petitioner asked for a video conference
hearing, but the AAU never granted the request, citing several concerns,
including concerns about security, confidentiality, and bandwidth capabilities,
associated with hearings held by way of video conference. Once COVID-19
vaccines became available, the AAU scheduled an in-person hearing.

The federal regulations under the Medicaid Act require an agency to
“take final administrative action” within 90 days of an individual’s request for
an appeal. 42 C.F.R. § 431.244(f) (2021). The 90-day requirement may be
exceeded in only two circumstances: (1) the appellant delays or fails to act; or
(2) when there is an emergency beyond the agency’s control. Id. Here, it is
undisputed that the AAU failed to hold a hearing and issue a final order within
the 90-day limit. Nevertheless, the outbreak of the COVID-19 pandemic

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constituted an emergency, which, for the reasons we just discussed, caused
the delay. Based upon the plain language of the federal regulations, we
conclude that in this case the AAU did not violate the Medicaid Act and,
because the petitioner’s remaining due process arguments are premised on this
alleged violation, we decline to address them.

III. Conclusion

For the foregoing reasons, we conclude that the AAU did not err in
finding that the petitioner is ineligible for RSA chapter 171-A services based on
the fact that he does not have a qualifying DD pursuant to RSA 171-A:2, V.
Additionally, although we recognize the significant delay that the petitioner
experienced waiting for the AAU merits hearing, we nevertheless conclude that
the AAU did not violate the Medicaid Act. Accordingly, we affirm.

Affirmed.

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

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