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TWINING VILLAGE v. COMMONWEALTH PENNSYLVANIA (10/13/89)

decided: October 13, 1989.

TWINING VILLAGE, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



PETITION FOR REVIEW (DEPARTMENT OF PUBLIC WELFARE).

COUNSEL

Caroline F. Achey, McBride and Murphy, Newtown, for petitioner.

Bruce G. Baron, Asst. Counsel, for respondent.

Craig, Barry and Colins, JJ.

Author: Colins

[ 129 Pa. Commw. Page 167]

Twining Village, the proprietor of a total life care retirement community, petitions for review of the October 26, 1988 order of the Secretary of Public Welfare granting the Department of Public Welfare's (DPW) request for reconsideration and reversing an Order of the Director of the Office of Hearings and Appeals (OHA) dated June 26, 1984. DPW has filed a motion to dismiss the appeal which, pursuant to order, was argued concurrently with the merits of Twining Village's petition.

BACKGROUND

Twining Village consists of a skilled nursing care facility (nursing home) and a residential apartment community. As a provider of nursing home services, Twining Village participated in the Pennsylvania Medical Assistance Program. This appeal involves the rate set by DPW for interim payments to Twining Village for the period from July 1, 1982 through June 30, 1983.

Twining Village filed a timely appeal of this interim rate with DPW on March 1, 1983, contesting the amount of interest on capital indebtedness recognized in the interim rate.*fn1 Hearing Officer Mary Dilks issued a recommendation that Twining Village's appeal be sustained and that DPW be required to recompute the interim rate and allocate interest income in the same manner that interest expense is allocated. In its order of June 26, 1984, the Acting Director of OHA adopted this recommendation. DPW filed a timely request for reconsideration with OHA on June 27, 1984.

[ 129 Pa. Commw. Page 168]

On July 26, 1984 the Executive Deputy Secretary of DPW issued what was termed as a " Preliminary Order Request for Reconsideration." This order reads in pertinent part:

[a]nd now, this 26th day of July, 1984, a Request for Reconsideration has been filed by the Department and that request will be considered. However, before making a decision on this request, I am requesting that the appellant provide me in writing of his/her reasons to oppose the Department's request. Attached to this Preliminary Order is a copy of the Department's request. In order for me to review the appellant's reasons, the reasons must be submitted in writing and received by me within ten (10) days from the date of this Preliminary Order. (Emphasis added.)

No further order was issued on the request for reconsideration until October 26, 1988, when a final order was entered by the Secretary of DPW granting reconsideration and reversing the June 26, 1984 order on the merits. A timely petition for review of that order was filed by Twining Village with this Court.*fn2

MOOTNESS

DPW contends that because the final audit and settlement of Twining Village's rates for the period from July 1, 1982 through June 30, 1983 has been made and no appeal of the final rates was filed, the appeal of the interim rates for that period is now rendered moot. Twining Village counters that although it did not appeal the final rates, DPW's pertinent regulation at 55 Pa.Code ยง 1181.101, provides for a ...


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