dissenting.
I respectfully dissent. The majority seeks to give effect to the General Assembly’s intention that DPW promulgate regulations and procedures giving effect to the “no loss clause.” The difficulty which presents itself is that the intent of the General Assembly as set forth in Section 201 of the Act is not limited to requiring DPW to give effect to the “no loss clause.” The clear intent of the General Assembly was also to require DPW to obtain federal approval so as to permit the DPW to receive federal reimbursement. The first line of the provision contains the wording “in accordance with Federal regulations.” In the last line of the provision, the General Assembly directs the Department to obtain federal approval prior to making the changes.1 Thus, we must determine whether this Court *384may order DPW to reimburse Franklin even though federal approval was not obtained and federal reimbursement would not be forthcoming. As enacted, Section 201 would appear to prohibit such a reimbursement to Franklin.
The majority opinion attempts to resolve this dilemma. I remain unconvinced. First, the majority relies on Department of Public Welfare v. Town Court Nursing Center, Inc., 97 Pa.Commonwealth Ct. 380, 509 A.2d 950 (1986), for the holding that a provider’s claim for reimbursement under its provider agreement is independent of the availability of federal reimbursement. I believe that the reliance on that case is misplaced. In Town Court, we did not address the issue concerning whether DPW may reimburse a provider when the authorizing legislation makes federal approval a prerequisite to any reimbursement, and such approval is lacking. Thus, Town Court does not resolve the current controversy.
Secondly, the majority is persuaded that the “no loss provision” was approved by HHS by virtue of DPW’s initial submission and the HHS response thereto, in which HHS noted that the “no loss clause” appeared to be acceptable. Clearly, if HHS had approved the “no loss clause,” there would be no dilemma. We could give effect to both provisions in Section 201, i.e., that DPW promulgate regulations commensurate with the “no loss clause” and that federal approval be obtained. Unfortunately, this Court’s holding that HHS approved the “no loss clause” is without support; The record establishes that the state plan did not include the “no loss clause” and it was never formally approved by *385HHS.2
Accordingly, because I read Section 201 of the Act as requiring federal approval, and because I view the record as indicating that such approval was not obtained, I believe that the payment to Franklin is improper.
. This intent is consistent with prior statutory authority concerning Pennsylvania’s Medical Assistance Program:
The following medical assistance payments shall be made in behalf of eligible persons whose institutional care is prescribed by physicians:
(2) The cost of skilled nursing and intermediate nursing care in State-owned geriatric centers, institutions for the mentally retarded, *384institutions for the mentally ill, and in county homes which meet the State and Federal requirements for participation under Title XIX of the Federal Social Security Act and which are approved by the department. This cost in county homes shall be as specified by the regulations of the department adopted under Title XIX of the Federal Social Security Act and certified to the department by the Auditor General____
Section 443.1(2) of the Public Welfare Code, Act of June 13, 1967, P.L. 31, as amended, 62 P.S. § 443.1(2).
. HHS’s response stated that although the "no loss” provision appeared to be acceptable, the clause had not been included in the state plan. (Official Record, Item No. 6, Exhibit A-3 at 6.)