43 Pa. Commw. 593 | Pa. Commw. Ct. | 1979
Opinion by
We have before us a petition for review filed on bebalf of twelve private schools (Petitioners) previously approved by the Department of Education of the Commonwealth of Pennsylvania (Department) for the special education of state tuition reimbursable exceptional children.
Section 1376, both before and after the adoption of Act 144, placed 25% of the cost of tuition for a Pennsylvania resident approved reimbursed student on the school district of the child’s residence and 75% on the Commonwealth. Act 144, however, amended Sec
The Department conducted audits during the early months of 1977. Petitioners, availing themselves of the new tuition rates, as was their right, submitted financial data to the Department with claims which exceeded the pre-Act 144 rates. Not having sufficient monies to satisfy these higher claims, due in part to the legislature’s failure to appropriate additional funds to meet the new tuition rates,
At the request of Petitioners, hearings commenced on May 3, 1977, before a Hearing Examiner appointed by the Secretary, to determine the overall status of Commonwealth funding and reimbursements and the
The Secretary, obviously concerned about the equitable distribution of the remaining available funds, discussed three possible ways to solve the dilemma. The first possible course of action would have been to pay all allowable claims on a “first come, first served” basis. This was rejected outright as being grossly unfair and a possible violation of equal protection. The next possibility would have been for the Department to request a deficiency appropriation from the legislature. This also was discounted, since the Secretary felt compelled to honor the commitment of her predecessor who had promised the G-eneral Assembly that he would not secure a deficiency appropriation. The final possible course of action, and the one which was ultimately determined to be the most equitable, was to apportion the available monies on a pro rata basis so that each school received the same proportion of its approved tuition and room and board charges as every other school.
Petitioners, in their attempt to have all claims completely satisfied, impugn the Secretary’s conclusion that proration is the proper method to solve the problem created by the shortage of funds. They postulate that the Department, in order to meet its 75% share, must utilize any state appropriation for special education, regardless of the specific purpose attached by the legislature to that appropriation.
In support of this proposition, Petitioners rely on the language of Section 1376(a) which provides, inter alia, that “the Commonwealth shall pay, out of funds appropriated to the department for special education, ’ ’ the reimbursements previously mentioned. They posit that there is nothing in this legislation which
Nevertheless, Petitioners argue that the Department’s failure to fully reimburse them constitutes an unconstitutional taking of property without either due process or just compensation and is an impairment of the constitutional right to contract. The latter contention can be disposed of readily since we are in agreement with the Secretary’s finding that there is nothing in the record to establish a contract between Petitioners and the Department. The former contentions, although seemingly more complex, are also
The next series of challenges raised by Petitioners centers around the Department’s regulations governing audit procedures. Petitioners first claim that they have been denied due process of law in that the criteria set forth at 22 Pa. Code §171.19(e) (2) are too indefinite to provide a guide as to what charges are reimbursable. The regulation instructs the auditors to disallow any charges, or portions thereof, which are “excessive or unreasonable.” While it is true that these criteria are of a general nature, this factor alone is not sufficient for us to hold the regulation invalid. The test which controls our determination is whether the regulation is reasonable. Union-town Area School District v. Pennsylvania Human Relations Commission, 455 Pa. 52, 313 A.2d 156 (1973); Pennsylvania Association of Life Underwriters v. Department of Insurance, 29 Pa. Commonwealth Ct. 459, 371 A.2d 564 (1977).
In examining this regulation for reasonableness, we are guided by the meaning given to it by the De
Petitioners next argue that because the Department did not adopt its audit regulations until July 16, 1976, it is precluded from applying them retroactively to claims for the 1975-76 school year. Agencies may, of course, adopt retroactive regulations so long as they do not disturb vested rights, the impairment of contracts, or the principles relating to due process. Jenkins v. Unemployment Compensation Board of Review, 162 Pa. Superior Ct. 49, 56 A.2d 686 (1948). Petitioners contend that these regulations have interfered with their vested right to compensation. It should be noted that while this contention is predicated on the higher maximum rates established by Act 144, the retroactive effect of the Act itself is not challenged. Thus, it seems that Petitioners want all the benefits of Act 144 but none of the burdens which attach thereto.
A right is not vested unless it is fixed and without condition. Miller v. Johnstown Traction Co., 167 Pa.
In summary, we determine that the Secretary’s adjudication is in accordance with the law and supported by substantial evidence. Accordingly, we affirm.
Order
And Now, this 28th day of June, 1979, the adjudication of the Secretary of Education, dated April 11, 1978, ordering that monies appropriated for approved private schools for fiscal years 1975-76 and 1976-77 should be paid out to those schools on a pro rata basis, is hereby affirmed.
An approved private school is a facility which has been licensed by the State Board of Private Academic Schools and whose special education program has been specifically approved by the Department. 22 Pa. Code §§171.11, 171.23. Approved status makes the school eligible for tuition and/or room and board reimbursement from the Department for the special education of handicapped students if their attendance at the school has itself been approved by the Department. Such students are called “Pennsylvania resident approved reimbursed students.” 24 P.S. §13-1376(a).
Repealed by tlie Act of April 28, 1978, P.L. 202, 42 P.S. §2002 (a) [1244]. Similar provisions are now found at 2 Pa. C.S. §101 et seq.
It also appears that the Governor removed $1,000,000 from tbe Department’s 1975-76 approved private school appropriation in order to fund Hurricane Agnes flood relief.