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decided: December 23, 1987.


Appeal from the Order of the Commonwealth Court of Pennsylvania Entered August 28, 1986, at No. 64 C.D. 1985, Affirming the Order of Office of Hearings and Appeals, Department of Public Welfare, Entered December 11, 1984, at Docket Nos. 23-80-184, 23-81-140, 23-82-265. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Hutchinson, Former Justice, did not participate in the consideration or decision of this case.

Author: Zappala

[ 517 Pa. Page 107]


Fair Winds Manor, Inc. (Appellant) a privately owned skilled nursing and intermediate care facility, appeals a Commonwealth Court order 100 Pa. Commw. 139, 514 A.2d 642, affirming an order of the Director, Office of Hearings and Appeals (Director) of the Pennsylvania Department of Public Welfare (DPW). The Director's order denied Appellant's exceptions to DPW audit findings that disallowed certain Medical Assistance reimbursements.*fn1 We granted

[ 517 Pa. Page 108]

    the Appellant's petition for allowance of appeal to review DPW's denial of a step-up basis for depreciation of leased facilities and DPW's audit protocol of offsetting interest income from working capital against capital interest expense.*fn2 For the reasons that follow, we affirm.

In 1958, Charles and Helena Brown acquired real estate for use as a nursing home. They also owned all of the stock of Fair Winds Manor, Inc., which has been the nursing home's service provider since 1964. In 1967 Charles and Helena Brown transferred title to the subject property from their own name to a partnership -- Fair Winds Farm. Fair Winds Manor, Inc. in turn leased the property from Fair Winds Farm. The partners of Fair Winds Farm were Charles and Helena Brown and their three children Alfred, Nadine, and Zarah Brown Blair. The children were later each given a one-fifth interest in Fair Winds Manor, Inc. In 1972 Nadine Brown sold her one-fifth share in Fair Winds Manor, Inc. to her brother-in-law Kenneth Blair. Alfred Brown transferred his one-fifth interest in Fair Winds Manor, Inc. to Fair Winds Farm that same year.

On July 1, 1979 the real estate that had been transferred to Fair Winds Farm in 1967 was purchased by the newly formed Four Winds, Ltd.*fn3 Utilizing funds from their Four Winds, Ltd. partnership account(s), Kenneth and Zarah Brown Blair purchased the remaining sixty percent of Fair Winds Manor, Inc.'s outstanding stock in November, 1979,

[ 517 Pa. Page 109]

    thereby obtaining sole ownership of that corporation.*fn4 Fair Winds Manor, Inc. continued to lease the realty from Four Winds, Ltd.

During this period it was determined that alterations would have to be made to the existing structure of the facility in order to remedy Life Safety Code deficiencies. Kenneth Blair contacted the Nursing Home Loan Agency of the Commonwealth of Pennsylvania (Agency) to ascertain the availability of funds required for construction. The Agency required as a loan condition the personal guarantees of Four Winds, Ltd.'s general partners. Alfred and Marlene Brown would not personally guarantee the loan. Faced with this refusal, and thereby the certainty of discontinuing the facility's operation, Kenneth and Zarah Brown Blair purchased the interest of Alfred and Marlene Brown as well as Charles and Helena Brown in Four Winds, Ltd. on November 6, 1980. The result of this transaction was that Four Winds, Ltd. was dissolved and the subject property was titled in Kenneth and Zarah Brown Blair as tenants by the entirety. Consequently, Fair Winds Manor, Inc. now leased the realty from Kenneth and Zarah Brown Blair. The purchase of Four Winds, Ltd. also ensured that Fair Winds Manor, Inc. would receive the funds necessary to remedy Life Safety Code deficiencies from the Agency.*fn5


DPW's field auditor disallowed Fair Winds Manor, Inc.'s claim on its 1981 medical assistance cost report for $21,935 in depreciation. This amount reflected the increased cost basis of the real estate purchased by the Blairs.*fn6 The basis of the field auditor's decision was that a determination of

[ 517 Pa. Page 110]

    the cost basis of assets, as provided by Manual Section IV(D)(9)(f) cannot recognize the re-valuation of an asset based on a related party purchase. 8 Pa.Bull. 2836 (1978). Manual Section IV(D)(9)(f) provides:

The cost basis for depreciable assets of a facility purchased as an ongoing operation shall be the lesser of the purchase price or the fair market value based on the lesser of at least two bonafide [sic] appraisals at the time of the sale and less any straight line depreciation by the prior owner. The sale must be an arm's length transaction consummated in the open market between non-related parties in a normal buyer-seller relationship.

8 Pa.Bull. 2836 (1978) (emphasis added).

On appeal to DPW's Office of Hearings and Appeals, the Attorney Examiner stated that the partnership buy out must meet each and every requirement of the last sentence of paragraph (f) for the cost to be recognized for depreciation purposes. The Attorney Examiner determined that a normal buyer-seller relationship did not exist, therefore the sale assets could not be recognized for a step-up in the cost basis of the realty and a corresponding increase in depreciation allowance.*fn7 Commonwealth Court affirmed the order of DPW, finding the department's interpretation of Manual Section IV(D)(9)(f) to be in accord with the section's plain language.

Appellant argues that it is entitled to a stepped-up cost basis in the real estate and a corresponding increase in depreciation allowance because the Blairs acquired the partnership assets (real estate) as the result of bona fide arm's length negotiations. Appellant also contends that Commonwealth Court's and DPW's decisions misconstrue the intent and purpose of the Social Security Act which establishes the federal/state program of medical assistance. 42 U.S.C. § 1396(a)(13)(A). The focus on subsection (f) of Manual Section IV(D)(9) is misplaced.

[ 517 Pa. Page 111]

In Department of Public Welfare v. Forbes Health System, 492 Pa. 77, 81, 422 A.2d 480, 482 (1980), we enunciated a two step analysis for review of an administrative agency's interpretation of its own regulations. This analysis provides that:

First, "[i]n construing administrative regulations, 'the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" . . . Second, the regulations "must be consistent with the statute under which they were promulgated."

In this case, DPW has interpreted its administrative regulation, Manual Section IV(D)(9)(f), as applicable to the Blair's acquisition of the partnership's real estate. For this subsection of the regulation to apply, however, the initial requirements of Manual Section IV(D)(9) must first be satisfied. Those requirements include:

9. Depreciation allowance. Depreciation on capital assets including assets for normal standby or emergency use in which the facility is the record title holder and which assets are used to provide covered services to Medical Assistance recipients, is an allowance cost subject to the following conditions:

8 Pa.Bull. 2836 (1978) (emphasis added). Thus, in order to claim depreciation on capital assets under this subsection not only must the asset be used to provide covered services to Medical Assistance recipients but the facility must also be the record title holder of the asset.*fn8

Fair Winds Manor, Inc., while a skilled nursing and intermediate care facility, did not hold title to the physical plant and real estate it occupied. As of November 6, 1980, the record title holder of that depreciable capital asset was the Blairs as tenants by the entirety. Since one of the Manual Section IV(D)(9) requirements could not be met, the plain language of the regulation precludes application of

[ 517 Pa. Page 112]

    subsection (f) regardless of whether or not the sale was in a normal buyer-seller relationship.*fn9

Although we find DPW's application of Manual Section IV(D)(9)(f) to this case to be plainly erroneous based on the plain language of the regulation, and such an interpretation will not control to deny a step-up in cost basis in other cases, we affirm the order of Commonwealth Court on the alternative reasons stated.*fn10


The second issue raised by Appellant is whether DPW properly offset interest income against interest on capital indebtedness for fiscal years 1979, 1980 and 1981. Appellant received interest income from working capital funds temporarily held in savings accounts. These accounts were used to accumulate funds in order to liquidate short term operating loans. Appellant argues that the interest income earned on the savings accounts should be applied to offset interest expense on short-term operating loans.

[ 517 Pa. Page 113]

DPW interpreted the then existing regulation, Manual Section IV(D)(10)(e), as requiring that interest income first be offset against interest expense on capital indebtedness, with any remaining balance offset against interest expense on current indebtedness. Commonwealth Court found DPW's interpretation to be not plainly inconsistent with the wording of Manual Section IV(D)(10)(e) and therefore upheld DPW's policy as a valid interpretation of that regulation.

Manual Section IV(D)(10)(e) provides that:

     e. Interest expense reduced by investment income, except when the investment income is derived from gifts or grants which are restricted by the donor and which are accounted for separately from other funds, will be recognized.

8 Pa.Bull. 2837 (1978).

Appellant notes that "investment income" is not defined in the regulation and claims that it should therefore be interpreted according to federal policies and guidelines that apply to Medicare and Medicaid.*fn11 Finding federal guidelines controlling, Appellant argues that a distinction is made between interest on current versus capital indebtedness which is carried over to investment income. HIM 15, Section 202.1, 1 Medicare and Medicaid Guide (CCH) para. 4913. Appellant interprets the federal guidelines to mandate that short term investment income be offset against interest on current indebtedness and long term investment income to be offset against capital indebtedness. Appellant misconstrues the applicable federal guidelines.

Investment income is defined in the Medicare Provider Reimbursement Manual as ". . . the aggregate net amount realized from dividends, interest, rental income, interest earned on temporary investment of withholding taxes, as well as all gains and losses." HIM 15, Section

[ 517 Pa. Page 114202]

.2, 1 Medicare and Medicaid Guide (CCH) para. 4920. The federal guidelines do not differentiate investment income on the basis of its term. Additionally, no guideline provisions mandate how investment income is to be offset against interest expense -- whether for current indebtedness or capital indebtedness.

Appellant also asserts that DPW's policy interpretation is contrary to generally accepted accounting principles. No source citations are presented in support of this contention. Since the policies underlying applicable state regulations used to determine allowable cost reimbursement for skilled nursing and intermediate care facilities differ sharply from financial accounting requirements, the superficial appeal of this argument cannot sustain it. Compare, American Automobile Association v. United States, 367 U.S. 687, 692-93, 81 S.Ct. 1727, 1729-30, 6 L.Ed.2d 1109 (1961) (recognizing different treatment of income for tax purposes than by generally accepted accounting principles).

The final issue raised by Appellant is that DPW's policy interpretation improperly promulgated a regulation. Appellant's reference is to a DPW memorandum dated April 23, 1980 which interprets Manual Section IV(D)(10)(e) whereby investment income is offset first against interest expense on capital indebtedness.*fn12 We disagree. DPW's interpretation of the offset rule does not constitute adoption of a new substantive regulation in contravention of The Commonwealth Documents Law, Act of July 31, 1968, P.L. 769, as amended 45 P.S. § 1102 et seq., since an agency may formulate interpretations of general applicability without

[ 517 Pa. Page 115]

    publishing such opinions.*fn13 Compare Cheshire Hospital v. New Hampshire-Vermont Hospitalization Service, Inc. d/b/a Blue Cross/Blue Shield of New Hampshire-Vermont, 689 F.2d 1112 (1st Cir. 1982) (Secretary's interpretation of offset rule does not constitute new substantive rule).

Because we find that the increased depreciation based on this sale of assets could not be recognized, and DPW properly interpreted the then existing regulation so as to require that interest income first be offset against interest expense on capital indebtedness, the order of Commonwealth Court is affirmed.

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