Mercer County Home and Hospital (Mercer) has applied, under Pa„R.A.P. 1532(b), for summary relief in favor of its petition for review of the decision of the Pennsylvania Department of Public Welfare (DPW). Pa.R.A.P. 1532(b) allows the Court to enter judgment on an application for summary relief if the right of the applicant thereto is clear.
Mercer seeks review of an order of the Secretary of Public Welfare which denied reimbursement of costs under Pennsylvania’s Medical Assistance Program, Section 443.1 of the Public Welfare Code,
This Court in Franklin County Nursing Home v. Department of Public Welfare, 126 Pa. Commonwealth Ct. 375, 559 A.2d 1002 (1989), McGinley, J. dissenting, held that Section 201 requires DPW to reimburse the final audited rate. Because the issue presented here is identical to the issue raised in Franklin, we must reverse DPW.
Mercer is a provider of skilled nursing facility (SNF) and intermediate care facility services under the Pennsylvania
By a letter dated June 30, 1982, DPW, through the Auditor General, issued an audit report showing that Mercer’s SNF per diem operating costs were $46.22 before the application of any ceilings. Nonetheless, the audit report determined that Mercer’s rates for the period October 1, 1980 through December 31, 1980 were capped by the new SMSA ceiling and thus limited to $39.24 per day. The net effect was a loss to Mercer in the amount of $103,632.06.
Mercer appealed from DPW’s 1980 audit report and, on December 24,1984, a DPW hearing officer issued an adjudication recommending that Mercer’s appeal be denied. However, on January 25, 1985, the director of the Office of Hearings and Appeals (OHA) rejected the recommendation of the hearing officer and ordered that Mercer be reimbursed on the basis of its final audited rates in effect as of September 30, 1980. In its order, OHA noted that it had decided the same issue in the appeal of Franklin County Nursing Home.
Contending that OHA incorrectly followed its decision in Franklin, DPW sought reconsideration by the Secretary of Public Welfare. On March 18, 1988, the Secretary entered an order noting that the issue was identical to that raised in Franklin and reversed the decision of OHA. The within petition for review was filed from that order.
This Court granted Mercer an extension to file its brief until thirty days after our disposition of Franklin. On
Although DPW previously conceded that the issues were identical DPW now argues that, due to. additional facts of record presented in this case, our decision herein cannot be governed by the ruling in Franklin. Because we find that the issue presented herein is identical to the issue decided in Franklin, we grant Mercer’s application for summary relief.
DPW’s first contention is that the hearing officer herein found facts to support DPW’s position in the legislative history for Section 201 and based upon the amount of funds appropriated to cover any losses incurred thereby. DPW’s argument is unconvincing. The hearing officer’s findings indicate that, although an early draft of Section 201 referred to grandfathering based upon interim rates, the word “interim” was deleted from later drafts.
With regard to the amount of funds appropriated, DPW argues that the appropriation of funds sufficient only to cover the grandfathering of interim rates indicates a legislative intent to grandfather interim rates instead of final
DPW further asserts that Article III, Section 24 of the the Pennsylvania Constitution and the Supreme Court’s decision in Adams County v. Department of Public Welfare, 502 Pa. 47, 463 A.2d 1002 (1983), preclude the payment of funds which are not authorized by appropriation. In the present case, as in Adams County, the General Assembly appropriated funds to DPW with the understanding that the total amount to be appropriated would not be ascertained until some future fiscal year. The Supreme Court vacated this Court’s order in Adams County, not because of insufficient appropriations but because Adams County sought reimbursement for estimated costs rather than actual expenditures. Because Mercer’s final costs have been audited and are for a fixed amount, the holding in Adams County does not control.
DPW also claims that the “no loss” clause of Section 201
DPW next contends that Section 1921(c) of the Statutory Construction Act of 1972
DPW’s last contention is that, as of the date on which DPW was required to implement Section 201, the only rates in existence and available for use were the interim rates. However, Section 201 expressly states that the new ceilings are to be calculated effective January 1, 1981 and paid retroactively. Furthermore, as noted above, the General Assembly can appropriate funds with the understanding-that the full amount to be appropriated will be determined in the future.
For the foregoing reasons, DPW has not sufficiently distinguished this case from Franklin to warrant a different result. Because the issues are identical and there are no relevant factual distinctions, Mercer’s right to relief is clear and summary relief is appropriate under Pa.R.A.P. 1532(b). Accordingly, we reverse the decision of the Secretary of Public Welfare.
ORDER
AND NOW, this 9th day of November, 1989, the order of the Secretary of Public Welfare in the above-captioned matter is hereby reversed.
. Act of June 13, 1967, P.L. 31, as amended, added by Section 5 of the Act of July 31, 1968, P.L. 904, as amended, 62 P.S. § 443.1.
. Act of June 30, 1980, P.L. 1391.
. The hearing officer states, in Findings of Fact Nos. 22 and 23, that:
22. On February 21, 1980 the larger county homes sent their legislators an initial draft of a legislative proposal to change the system which provided for "grandfathering” based on interim rates.
23. On February 26, 1980, the larger homes sent & second draft in which the word "interim" was deleted.
Adjudication of Hearing Officer Edgar M. Silvis, December 24, 1984, at 3.
. Section 201 states in relevant part that, "The new ceilings shall provide that no public nursing home shall have a ceiling below its rate that was in effect prior to implementation of the new ceilings."
. See Footnote 4.
. 1 Pa.C.S. § 1921(c).
