Segal v. Department of Public Welfare

603 A.2d 668, 145 Pa. Commw. 385, 1992 Pa. Commw. LEXIS 118
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 3, 1992
DocketNo. 2128 C.D. 1990
StatusPublished
Cited by2 cases

This text of 603 A.2d 668 (Segal v. Department of Public Welfare) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Segal v. Department of Public Welfare, 603 A.2d 668, 145 Pa. Commw. 385, 1992 Pa. Commw. LEXIS 118 (Pa. Ct. App. 1992).

Opinion

PELLEGRINI, Judge.

Allen Segal, Jane Segal and Gary Segal, trading as 1401 Ivy Hill Associates (Ivy Hill), appeal from a final order of the Director, Office of Hearings and Appeals (Director) of the Department of Public Welfare (Department) which adopted an Attorney Examiner’s determination and recommendation denying Ivy Hill’s appeal from audit adjustments [387]*387of Medical Assistance Program (Medicaid) reimbursement allowances.

On May 15, 1984 Ivy Hill purchased the Green Acres Nursing and Rehabilitation Center (nursing facility) as an ongoing operation for $3,438,159, for which Ivy Hill borrowed approximately $3,500,000 (loan) to finance the purchase. During the course of the purchase, Ivy Hill also incurred settlement or “soft” costs such as legal, accounting and commitment fees (soft costs) in the amount of $68,338.

In order to obtain Medicaid reimbursement1 for the soft costs and interest on the loan, Ivy Hill submitted cost reports for the fiscal periods ending December 31, 1984, December 31, 1985, June 30, 1986 and June 30, 1987. During an audit for the relevant fiscal periods, the Department’s auditors disallowed Medicaid reimbursement for the amortization of soft costs in the amount of $18,159.00, reclassified $63,338.00 of the soft costs on the ground that these costs were not capital costs but net operating costs,2 and disallowed reimbursement of the portion of the interest deemed by the Department to be excessive.

Ivy Hill took exception to these disallowances and to the method used by the Department to calculate excess interest. On November 28, 1989 a formal hearing on the matter was held before an Attorney Examiner and on August 10, 1990 the Attorney Examiner filed an Adjudication and Recommendation concluding that Ivy Hill’s appeal should be denied because Ivy Hill’s soft costs were properly treated as net operating costs and because the Department’s method for computing and adjusting Ivy Hill’s interest payments was in accordance with legal authority. On September 13, 1990 the Director issued a final order adopting the Attorney [388]*388Examiner’s recommendation in its entirety. Ivy Hill’s appeal to this Court followed.3

Initially, we note that in Department of Public Welfare v. Forbes Health System, 492 Pa. 77, 422 A.2d 480 (1980), our Supreme Court set forth two principles with respect to review of an agency’s interpretation of its own regulations. First, the agency’s interpretation may not be disturbed unless it is plainly erroneous or inconsistent with the regulation interpreted. Second, the interpretation must be consistent with the underlying policies or objectives of the underlying statute.

Ivy Hill contends that the Department erroneously classified the soft costs as net operating costs. Because those costs were incurred during the purchase of the nursing facility, Ivy Hill argues, they should have been added to the asset basis and depreciated over the useful life of the nursing facility.

Whether or not a cost item is a capital expense is determined pursuant to both the federal Medicare Provider Reimbursement Manual, Health Insurance Manual-15 (HIM-15), 1 Medicare and Medicaid Guide (CCH), par. 4590 — 5999z-574 and the Department’s Manual for Allowable Costs (Manual), printed in 8 Pa.B. 2826-2838 (1978).5 While the Manual is silent regarding soft costs, it does provide that capital expenses, defined as allowable depreciation or inter[389]*389est on capital indebtedness, are, within certain limitations, recognized as allowable cost items. 55 Pa.Code § 1181.216.

The Department’s auditor testified that in the case of a newly constructed facility, the soft costs of acquisition are incorporated into the asset basis and considered part of the historical cost of the asset for purposes of depreciation. In the case of an acquisition of an on-going operation, however, the soft costs of acquisition are considered an additional expense because the soft costs of the original acquisition of the facility have already been incorporated into the asset’s basis and are being depreciated accordingly. Because the Department cannot reimburse the same cost twice, especially where, as here, the asset basis has been stepped up due to the fact that the sale took place prior to the enactment of the Deficit Reduction Act of 1984, P.L. 98-369, 98 Stat. 1079-1080, the Department’s policy has been to treat the soft costs as an operating expense. The soft costs of acquiring an on-going facility are therefore reimbursed to the provider through amortization over a period of sixty months.

The Department’s interpretation of “capital expense” comports with Section 204 of HIM-15 which provides, in pertinent part:

In addition to interest expense, other expenses are incurred in connection with mortgage transactions. They may include attorney’s fees, recording costs, transfer taxes and service charges which include finder’s fees and placement fees. These costs to the extent they are reasonable, should be amortized over the life of the mortgage in the same manner as bond expense. (Emphasis added).

In the present appeal, because Ivy Hill did not construct the nursing facility but financed the purchase of the facility through a loan — in effect, a mortgage transaction — the costs associated with the purchase should have been amortized over the life of the loan. The soft costs should not be treated as a capital expense which can be depreciated.

[390]*390Furthermore, under the Department’s cost report (Form MA-11), the auditors are required to audit provider costs based on the instructions to Form MA-11, 55 Pa.Code § 1181.74(a)(4), which specify that “deferred charges” such as items constituting soft costs be reported as an amortization expense and not as a capital expense. Because the Department’s interpretation of the regulations is consistent with Section 204 of HIM-15, Ivy Hill cannot be reimbursed for those costs on the ground that they constitute allowable depreciation.

As to whether soft costs can be treated as interest on capital indebtedness,6 this Court has previously addressed that question in Homestead Nursing and Convalescent Home v. Department of Public Welfare, 135 Pa.Commonwealth Ct. 47, 579 A.2d 440 (1990). In Homestead, the provider sought to have the soft costs associated with its purchase of an on-going operation classified as a component of interest on capital indebtedness. The Department, however, interpreted the definition of “interest on capital indebtedness” as an imposition of a limit on reimbursement to actual interest rates alone and, accordingly, characterized the provider’s soft costs as a net operating expense. Finding that this interpretation was not plainly erroneous or in violation of the regulation, this Court refused to reclassify the provider’s soft costs as interest on capital indebtedness.

Ivy Hill’s soft costs are neither allowable depreciation nor interest on capital indebtedness, and those costs should not be treated as a capital expense. Instead, those costs should be treated as an amortization expense.

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603 A.2d 668, 145 Pa. Commw. 385, 1992 Pa. Commw. LEXIS 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/segal-v-department-of-public-welfare-pacommwct-1992.