Country Club Home, Inc. v. Harder, 51997
| Decision Date | 17 January 1981 |
| Docket Number | No. 51997,51997 |
| Parties | COUNTRY CLUB HOME, INC., and Lawrence Sowers as Administrator, Appellee, v. Robert C. HARDER, as Secretary of Social and Rehabilitation Services, Appellant. |
| Court | Kansas Supreme Court |
Bruce A. Roby, Topeka, for State Department of Social and Rehabilitation Services, argued the cause and was on briefs, for appellant.
T. Richard Liebert, P.A., of Liebert & Liebert, Coffeyville, argued the cause and was on brief, for appellee.
Robert A. Coldsnow, Topeka, argued the cause and was on amicus curiae brief, for Kansas Legislative Coordinating Council.
OPINION ON MOTIONS FOR MODIFICATION
All parties to this appeal, including amicus curiae, have filed motions for modification. Plaintiff-appellee requests this court to affirm the judgment of the trial court. Defendant-appellant and amicus curiae urge modification and clarification of the original opinion. 228 Kan. 756, 620 P.2d 1140. After considering these motions we find a change in the effective date of K.A.R. 30-10-12 from May 1, 1978, as it appears in the original opinion, to December 30, 1977, is necessary. This is the regulation which first omitted the limitation placed on payments to be made to nursing homes to funds which were made available or appropriated by the legislature. In order to understand why this change of date is necessary certain facts must be disclosed.
The Kansas statutes authorizing agencies to adopt rules and regulations recognize two kinds of regulations, temporary regulations (K.S.A. 77-422) and permanent regulations (K.S.A. 77-426). Under K.S.A. 77-422:
Under K.S.A. 77-426 a new permanent regulation when filed with the revisor of statutes on or before December 31 of any year "shall become effective on and after May 1 of the succeeding year." No rules and regulations may be filed "after December 31 or prior to May 1 in any year, except temporary rules and regulations."
The agency in this case filed a new permanent regulation K.A.R. 30-10-12 on December 29, 1977. This was before the December 31st deadline and under K.S.A. 77-426 it did not become effective until May 1, 1978. However, the agency also filed a temporary regulation, identical in substance, on December 30, 1977. Under the provisions of K.S.A. 77-422, above quoted, this regulation became effective when filed with the revisor of statutes December 30, 1977, and remained in effect until May 1, 1978, when the permanent regulation became effective. The provisions of K.S.A. 77-426, which fixes May 1 of the year succeeding the filing of the regulation as the effective date of a permanent regulation, specifically excepts from the operation of the statute temporary regulations. Thus, K.A.R. 30-10-12 first became effective as a temporary regulation on December 30, 1977, after approval by the attorney general and the department of administration, and at the time it was filed with the revisor of statutes. It remained in effect until the permanent regulation became effective May 1, 1978.
Therefore, the objectionable features of the agency's prior regulations concerning nursing homes, which limited the amount of payments to those funds which might be available and appropriated by the legislature, were removed by the adoption of the temporary regulation effective December 30, 1977, instead of May 1, 1978, as stated in the original opinion. Accordingly, it is held that the date May 1, 1978, in syllabus P 8, should be and is hereby changed to December 30, 1977, and a similar correction of date from May 1, 1978, to December 30, 1977, is ordered throughout the body of the original opinion, including the last two paragraphs.
In addition to the above corrections, two matters of clarification appear necessary after considering the motions for modification filed by amicus curiae and defendant-appellant. The first relates to regulations for the period from July 1, 1971, to July 28, 1972, and to the basis upon which it was held the administrative action taken by the agency was without proper legal authority. During this period of time the agency adopted and had in effect three different regulations affecting payments for...
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