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COUNTY ALLEGHENY ET AL. v. COMMONWEALTH PENNSYLVANIA (01/09/78)

decided: January 9, 1978.

THE COUNTY OF ALLEGHENY ET AL., PLAINTIFFS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE ET AL., DEFENDANTS



Original jurisdiction in case of The County of Allegheny, a political subdivision of the Commonwealth of Pennsylvania; Allegheny County Chapter Pennsylvania Association of Retarded Citizens, Inc., a non-profit corporation; Combined Parents Legislative Action Committee, a non-profit corporation; Parents Association of Allegheny Valley Junior School, an unincorporated association; Parents Association of Allegheny Valley Senior School, an unincorporated association; Gilbert M. Gerber and Dahlia Gerber, his wife; Thomas Hochman and Tillie Hochman, his wife; Herbert Ponical and Norma Ponical, his wife; and William M. Brant and Phyllis L. Brant, his wife, v. Department of Public Welfare of the Commonwealth of Pennsylvania; Frank S. Beal, as Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania; Al Benedict, as Auditor General of the Commonwealth of Pennsylvania; and Robert E. Casey, as State Treasurer of the Commonwealth of Pennsylvania.

COUNSEL

Robert S. Barker, Assistant County Solicitor, and Loraine S. Tabakin, Assistant County Solicitor, with them, Alexander J. Jaffurs, County Solicitor, for plaintiffs

Margaret Hunting, Deputy Attorney General, with her Norman J. Watkins, Deputy Attorney General, Jack G. Handler, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendants

Robert P. Meehan, Deputy Counsel, with him Lester Eisenstadt, Deputy Auditor General, for Al Benedict.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt and DiSalle. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 33 Pa. Commw. Page 269]

Section 507(a)(4) of the Mental Health and Mental Retardation Act of 1966*fn1 (Act) provides (with exceptions not relevant here) that the Commonwealth shall pay for the "[i]nterim care of mentally retarded persons, who have been removed from their homes and who, having been accepted, are awaiting admission to a State facility." Plaintiffs have brought an amended complaint in mandamus, alleging that the Commonwealth is liable for the entire cost of such care and seeking to compel the Commonwealth, through the Department of Public Welfare (Department), to reimburse plaintiff County of Allegheny (County) for the difference between the amount the County has expended for such care between July 1, 1969 and June 30, 1976, and the amount the County has already received under Department reimbursement formulas. We sustain the preliminary objections and dismiss the complaint.

Since at least 1969, the County has met its obligation under Section 301(d)(8) of the Act, 50 P.S. ยง 4301(d)(8), to insure availability of interim care through arrangements with various private licensed facilities. The Department has never reimbursed the County for the full amount of such expenditures but instead has employed formulas pursuant to a Department regulation found at 1 Pa. B. 179 (August 15, 1970). The regulation reads in pertinent part:

1.212(a) For Interim Care, the maximum fee for which the State will participate in payment shall not exceed the average per diem cost of care in the State Schools and Hospitals.

Plaintiffs allege that the County was reimbursed at the rate of $8.50 per patient per day from July 1, 1969

[ 33 Pa. Commw. Page 270]

    through April 30, 1970; at the rate of $11.00 per patient per day from May 1, 1970 through June 30, 1975; and at the rate of $15.00 per patient per day from July 1, 1975, resulting in an alleged difference between actual and reimbursed costs of approximately $2,770,000 for the period July 1, 1969 to June 30, 1976. By fiscal memorandum from the Secretary of the Department, effective July 1, 1975, the $15.00 rate was specifically included in each county's "base allocation," an unassigned annual grant from the Commonwealth from which funding of numerous county mental health and mental retardation programs is to be made. The memorandum stated that a county could reimburse private licensed facilities at a per diem rate higher than $15.00 by drawing from its base allocation, provided guidelines set forth in the memorandum were met. The record also shows that a supplement to the memorandum, effective February 9, 1976, directed that the fixed per diem rate be replaced by a more flexible rate based on reasonable costs within each region of the Department.

Plaintiffs filed their complaint in mandamus in July 1975. Following the filing of an amended answer and new matter, the County moved for peremptory judgment or, in the alternative, for judgment on the pleadings, both of which were denied by order of President Judge Bowman. In November 1976, after filing its reply to new matter, the County again moved for judgment on the pleadings. On August 4, 1977, in an opinion by Judge Kramer, plaintiffs were ordered to amend their complaint to include the State Treasurer and Auditor General of the Commonwealth as defendants, which was done. The ...


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