Monday, July 26, 2010

admin. law - regulation v. statement of policy

Northwestern Youth Services v. DPW - Cmwlth. Court - July 23, 2010

DPW Bulletins were held to be invalid, since

- they purported to establish a "binding norm" and "unambiguously mandate" certain actions and results, but
- DPW did not go throught the required procedures to get them adopted, under the Commonwealth Documents Law, 45 P.S. sec. 1102 et seq.

The bulletin imposed statewide mandatory requirements of CAOs and providers concerning residential placement services.

The analysis considered that

- the plain language of the bulletins was mandatory, using words like "binding" and "mandatory."
- the bulletins limited DPW's discretion.

The determination of whether an agency’s pronouncement is an unpromulgated regulation is a question of law. Eastwood Nursing & Rehabilitation Center v. DPW, 910 A.2d 134, 141 (Pa. Cmwlth. 2006), appeal denied, 592 Pa. 791, 927 A.2d 626 (2007). If an agency fails to properly promulgate a regulation in accordance with the CDL, we will declare the pronouncement a nullity. Borough of Bedford v. DEP, 972 A.2d 53, 62 (Pa. Cmwlth. 2009) (en banc).

Our Supreme Court has explained that an agency pronouncement constitutes a regulation when it purports to create a “binding norm”: “The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings…. A properly adopted substantive rule establishes a standard of conduct which has the force of law…. A general statement of policy, on the other hand, does not establish a ‘binding norm’…. A policy statement announces the agency’s tentative intentions for the future.” Pennsylvania Human Relations Commission v. Norristown Area School District, 473 Pa. 334, 350, 374 A.2d 671, 679 (1977) (citation omitted). “Statements of policy are agency pronouncements that declare [the agency’s] future intentions but which are applied prospectively on a case-by-case basis and without binding effect.” Borough of Pottstown v. Pennsylvania Municipal Retirement Board, 551 Pa. 605, 610 n.8, 712 A.2d 741, 743 n.8 (1998) (emphasis in original). A statement of policy also tracks the language of a statute and does not expand on its plain meaning. Bedford, 972 A.2d at 64.

To determine whether an agency has attempted to establish a binding norm, we must consider: (1) the plain language of the enactment; (2) the manner in which the agency implements it; and (3) whether it restricts the agency’s discretion. Cash America Net of Nevada, LLC v. Commonwealth, 978 A.2d 1028, 1033 (Pa. Cmwlth. 2009) (en banc).