Dissenting Opinion by
Judge Barry:Despite the fact that the case law cited by the majority reasonably can be construed to support its position that Mercy Hospital is not entitled to reimbursement for the services rendered to Ms. Connell, I am unable to accept such a harsh result and must therefore dissent.
Crucial to my belief that the Hospital should be reimbursed is the hearing officer’s factual finding that the Hospital made every reasonable effort to effectuate the transfer of Ms. Connell to the facility which had a bed available at the time and could provide the required level of care. The new facility, however, would not accept Ms. Connell until the Department of Public Welfare (DPW) approved the transfer and the hearing officer again found that DPW failed to approve the transfer in a timely fashion. Under these circumstances, the Hospital was faced with a very dif*198ficult choice. It could allow Ms. Connell to remain in the Hospital, realizing it could he denied reimbursement for the services provided; on the other hand, the Hospital could have discharged Ms. Connell even though it was obvious that she required care of a less intensive level that the Hospital was certified to provide. The Hospital chose the more humane alternative.
We must remember that it is DPW’s own regulations which it is using to deny reimbursement to the Hospital. From the tenor of DPW’s arguments in this case, one would believe that DPW has no choice but to act as it did, since DPW says all it was doing was following the applicable regulations. I do not believe that the actions of DPW in this case should be able to withstand our scrutiny by the invocation of regulations which are applied unfairly.
A narrow exception must, therefore, be carved .out of the rule that reimbursement depends on compliance with DPW regulations where the noncompliance, as here, is the result of DPW’s own actions. If such were not the case, one could not blame any hospital for discharging a patient who was still in need of care. I refuse to sanction such a rule which might persuade a hospital to act in disregard of human health and life.