49 Pa. Commw. 116 | Pa. Commw. Ct. | 1980
Opinion by
The Sarah A. Todd Memorial Home appeals a decision of a Department of Justice-appointed fair hearing examiner
The Todd Home ultimately seeks Section 1122 project “need” approval from the Secretary of Health, Education and Welfare which, if granted, would entitle it to reimbursement for certain costs associated with the construction of a new nursing home.
The Department of Health, charged with the duty of reviewing the actions of the local regulatory agency, determined that there was no “need” for the construction project and informed the Todd Home of its proposed negative recommendation to the Secretary of Health, Education and Welfare. The Todd Home appealed this determination and pursuant to Section 1122 procedure, a fair hearing was granted at which time the Department and the Todd Home produced testimony. The hearing examiner affirmed the Department’s decision that the additional beds asso
In appeals of this nature, our jurisdiction is limited by 42 Pa. C.S. §763(a) to a review of final administrative agency determinations. This type of action does not constitute such an appeal. Viewed as an appeal from a hearing examiner, it is clear that the requirement of administrative agency action is lacking. N.A.A.C.P. v. Wilmington Medical Center, Inc., 436 F. Supp. 1194 (1977), aff’d 584 F.2d 619 (1978). Viewed as an appeal from a proposed negative recommendation by the Department of Health, the necessary requisite of finality is absent. Edgewood School District v. State Board of Education, 17 Pa. Commonwealth Ct. 136, 330 A.2d 880 (1975).
We are aware that the General Assembly, effective October 1,1979, has provided an entirely new mechanism for disposing of Section 1122 project applications.5
Accordingly, we
Order
And Now, this 29th day of January, 1980, the Motion to Quash filed by the Department of Health is granted.
The hearing examiner is appointed pursuant to Federal Regulations found at 42 C.F.R. §100.106 (1978). He acts completely independent of, and his decision is not reviewable by, the Pennsylvania Department of Justice.
42 U.S.C. §1320a-l.
42 C.F.R. §100.101 et seq. (1978).
A negative recommendation does not prohibit the project but restricts federal reimbursements for interest and depreciation associated with capital improvements.
The decision of the Secretary is final as the act expressly prohibits judicial review of the Secretary’s decision.
Section 101 of the Health Care Facilities Act, Act of July 19,1979, P.L. , as amended, 35 P.S. §448.101.