B-158296, FEB. 18, 1966, 45 COMP. GEN. 515

B-158296: Feb 18, 1966

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ETC. - AVAILABILITY FOR RETROACTIVE OBLIGATIONS WHERE AN ORIGINAL APPLICATION FOR THE CONSTRUCTION OF A "COLLEGIATE" SCHOOL OF NURSING IS FILED UNDER THE HEALTH PROFESSIONS EDUCATIONAL ASSISTANCE ACT OF 1963. IS PROHIBITED BY THE RULE AGAINST "RETROACTIVE" PARTICIPATION IN CONSTRUCTION. AS THE "ASSOCIATE DEGREE" TRAINING PROGRAM AUTHORIZED IN THE 1964 ACT IS NOT AN EXTENSION OF A PRE EXISTING PROGRAM THAT INVOLVES THE TRANSITION FROM AN OLD TO A NEW PROGRAM. IS PROPER. CONCERNING THE AVAILABILITY OF FEDERAL FUNDS FOR THE CONSTRUCTION OF PROJECTS WHERE CONSTRUCTION WAS BEGUN SUBSEQUENT TO THE FILING OF AN APPLICATION UNDER AN EARLIER ACT (HEALTH PROFESSIONS EDUCATIONAL ASSISTANCE ACT OF 1963.

B-158296, FEB. 18, 1966, 45 COMP. GEN. 515

STATES - FEDERAL AID, GRANTS, ETC. - AVAILABILITY FOR RETROACTIVE OBLIGATIONS WHERE AN ORIGINAL APPLICATION FOR THE CONSTRUCTION OF A "COLLEGIATE" SCHOOL OF NURSING IS FILED UNDER THE HEALTH PROFESSIONS EDUCATIONAL ASSISTANCE ACT OF 1963, AND REFILED AFTER THE ENACTMENT OF THE NURSE TRAINING ACT OF 1964--- CONTINUING AND ENLARGING THE "COLLEGIATE" FACILITIES PROGRAM--- AND THE AVAILABILITY OF 1966 GRANT FUNDS, BUT CONSTRUCTION BEGAN PRIOR TO FUND AVAILABILITY, THE RULE AGAINST "RETROACTIVE" PARTICIPATION IN CONSTRUCTION STARTED PRIOR TO THE AVAILABILITY OF AN APPROPRIATION UNDER THE ENABLING LEGISLATION DOES NOT APPLY AND THE GOVERNMENT MAY SHARE IN THE ENTIRE COST OF THE CONSTRUCTION PROJECT, AND THE TWO COLLEGIATE TRAINING FACILITIES PROGRAMS, THE PRE- EXISTING ONE UNDER THE 1963 ACT AND THE ONE AUTHORIZED BY THE NURSE TRAINING ACT OF 1964, ELIGIBLE FOR ASSISTANCE UNDER BOTH THE 1963 AND 1964 ACTS, BEING FOR ALL PRACTICAL PURPOSES SUBSTANTIALLY THE SAME PROGRAM, A GRANT BASED ON THE FEDERAL SHARE OF THE ENTIRE COST TO CONSTRUCT SPACE FOR A NEW COLLEGIATE NURSING PROGRAM MAY BE AWARDED UPON APPROVAL OF THE APPLICATION PREVIOUSLY RECEIVED. STATES - FEDERAL AID, GRANTS, ETC. - FEDERAL STATUTORY RESTRICTIONS - RETROACTIVE OBLIGATIONS A GRANT ON THE BASIS OF THE FILING OF AN ORIGINAL APPLICATION UNDER THE HEALTH PROFESSIONS EDUCATIONAL ASSISTANCE ACT OF 1963, FOR THE CONSTRUCTION OF A NURSE TRAINING FACILITY TO INCLUDE ,COLLEGIATE" TRAINING SPACE, A PROGRAM AUTHORIZED BY THE 1963 ACT, AS WELL AS "ASSOCIATE DEGREE" TRAINING SPACE, SUBSEQUENTLY AUTHORIZED IN THE NURSE TRAINING ACT OF 1964, AND REFILED SUBSEQUENT TO ENACTMENT OF THE 1964 ACT AND THE AVAILABILITY OF 1966 GRANT FUNDS, WHERE CONSTRUCTION BEGAN AFTER THE ENACTMENT OF THE 1964 ACT, BUT PRIOR TO APPROPRIATION AVAILABILITY, IS PROHIBITED BY THE RULE AGAINST "RETROACTIVE" PARTICIPATION IN CONSTRUCTION, AS THE "ASSOCIATE DEGREE" TRAINING PROGRAM AUTHORIZED IN THE 1964 ACT IS NOT AN EXTENSION OF A PRE EXISTING PROGRAM THAT INVOLVES THE TRANSITION FROM AN OLD TO A NEW PROGRAM; HOWEVER, ALTHOUGH THE GOVERNMENT MAY NOT SHARE IN THE ENTIRE COST OF THE CONSTRUCTION PROGRAM, PARTICIPATION TO THE EXTENT OF WORK TO BE COMPLETED AFTER THE DATE OF THE NEW APPLICATION, FILED SUBSEQUENT TO THE AVAILABILITY OF FUNDS, IS PROPER, THE TERM "CONSTRUCTION" IN THE 1964 ACT INCLUDING THE EXPANSION OF EXISTING BUILDINGS.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, FEBRUARY 18, 1966:

LETTER DATED JANUARY 6, 1966, FROM THE UNDER SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE STATES THAT A QUESTION HAS ARISEN UNDER THE NURSE TRAINING ACT OF 1964, PUBLIC LAW 88-581, 78 STAT. 908, 42 U.S.C. 296 ET SEQ., CONCERNING THE AVAILABILITY OF FEDERAL FUNDS FOR THE CONSTRUCTION OF PROJECTS WHERE CONSTRUCTION WAS BEGUN SUBSEQUENT TO THE FILING OF AN APPLICATION UNDER AN EARLIER ACT (HEALTH PROFESSIONS EDUCATIONAL ASSISTANCE ACT OF 1963, PUBLIC LAW 88 129, 42 U.S.C. 293 NOTE), BUT PRIOR TO THE AVAILABILITY OF APPROPRIATIONS UNDER THE NURSE TRAINING ACT.

THE FACTS AND CIRCUMSTANCES GIVING RISE TO THE QUESTION, AS DISCLOSED BY THE UNDER SECRETARY'S LETTER, ARE SET FORTH BELOW.

ON SEPTEMBER 24, 1963, CONGRESS ENACTED THE HEALTH PROFESSIONS EDUCATIONAL ASSISTANCE ACT OF 1963 (TITLE VII, PART B, OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, PUBLIC LAW 88-129; 42 U.S.C. 293 ET SEQ.), WHICH PROVIDED FOR A PROGRAM OF GRANTS TO ASSIST IN THE CONSTRUCTION, REPLACEMENT AND REHABILITATION OF TEACHING FACILITIES FOR THE TRAINING OF VARIOUS TYPES OF HEALTH PROFESSIONAL PERSONNEL, INCLUDING NURSES. SUPPORT UNDER THAT ACT WAS LIMITED TO THOSE SCHOOLS OF NURSING PROVIDING TRAINING LEADING TO A BACHELOR'S DEGREE (I.E., "COLLEGIATE" SCHOOLS OF NURSING). DUE TO THE ACUTE SHORTAGE OF NURSES NATIONALLY, HOWEVER, CONGRESS IN 1964 FELT IT NECESSARY TO ESTABLISH A NEW AND SEPARATE PROGRAM AIMED DIRECTLY AT INCREASING THE SUPPLY OF NURSES IN THE UNITED STATES, INDEPENDENT OF ITS EFFORTS TO PRODUCE MORE HEATH PROFESSIONAL PERSONNEL GENERALLY. THIS POLICY WAS ENACTED INTO LAW IN THE FORM OF THE NURSE TRAINING ACT OF 1964 (APPROVED SEPTEMBER 4, 1964), WHICH, IN ADDITION TO AUTHORIZING GRANTS FOR "COLLEGIATE" SCHOOLS OF NURSING, AUTHORIZES GRANTS FOR CONSTRUCTION OF ASSOCIATE DEGREE AND DIPLOMA SCHOOLS OF NURSING.

FUNDS ARE AUTHORIZED UNDER THE NURSE TRAINING ACT OF 1964 TO BE APPROPRIATED FOR THE PURPOSE OF MAKING CONSTRUCTION GRANTS TO SCHOOLS OF NURSING BEGINNING JULY 1, 1965. AT THE SAME TIME, CONGRESS SOUGHT TO ELIMINATE ANY DUPLICATION OF AUTHORITY BY REMOVING FROM THE HEALTH PROFESSIONS EDUCATIONAL ASSISTANCE ACT (HEREINAFTER REFERRED TO AS THE HPEA ACT) THE AUTHORITY TO MAKE GRANTS FOR THE CONSTRUCTION OF TEACHING FACILITIES FOR NURSES, EFFECTIVE "WITH RESPECT TO APPROPRIATIONS FOR FISCAL YEARS BEGINNING AFTER JUNE 30, 1965" (SEC. 3 OF PUBLIC LAW 88-581; 42 U.S.C. 293). THE FIRST APPROPRIATION ACT PROVIDING FUNDS FOR CONSTRUCTION GRANTS UNDER THE NURSE TRAINING ACT WAS APPROVED AUGUST 31, 1965 (PUBLIC LAW 89-156; 79 STAT. 589).

IN CONNECTION WITH THE FOREGOING THERE ARE TWO FACTUAL SITUATIONS WHICH HAVE PRESENTED CERTAIN DIFFICULTIES:

CASE (1): A COLLEGE PROPOSED TO PROVIDE SPACE FOR A NEW COLLEGIATE NURSING PROGRAM IN A BUILDING TO BE CONSTRUCTED ON THE CAMPUS. IN MAY OF 1964 IT SUBMITTED AN APPLICATION FOR A CONSTRUCTION GRANT ($126,000) UNDER THE HPEA ACT. THE APPLICATION WAS FOUND BY THE NURSING REVIEW COMMITTEE IN NOVEMBER 1964, TO MEET ALL THE REQUIREMENTS OF THAT STATUTE AND WAS RECOMMENDED FOR APPROVAL BY THE NATIONAL ADVISORY COUNCIL ON EDUCATION FOR HEALTH PROFESSIONS A FEW DAYS THEREAFTER. DUE TO THE SHORTAGE OF FUNDS AND THE APPLICATION'S RELATIVELY LOW PRIORITY, HOWEVER, THE PROJECT WAS NEVER FINALLY APPROVED BY THE SURGEON GENERAL UNDER THE HPEA ACT. ACTING IN THE BELIEF THAT FEDERAL FUNDS WOULD BE MADE AVAILABLE FOR THE PROJECT AND BECAUSE OF THE NEED TO PROCEED IMMEDIATELY WITH THE PROJECT, CONTRACTS WERE AWARDED BY THE APPLICANT AND CONSTRUCTION WAS STARTED IN MAY 1965. WHEN APPROPRIATIONS BECAME AVAILABLE UNDER THE NURSE TRAINING ACT, THE APPLICATION WAS "REFERRED" TO THAT PROGRAM. ALTHOUGH ON SEPTEMBER 29, 1965, THE APPLICANT SUBMITTED REVISED AND SUPPLEMENTAL APPLICATION FORMS REQUESTING FUNDS UNDER THE NURSE TRAINING ACT, THE REVISED APPLICATION WAS SUBSTANTIALLY THE SAME AS THE ORIGINAL APPLICATION UNDER THE HEALTH PROFESSIONS EDUCATIONAL ASSISTANCE ACT. (ONE CHANGE RELATED TO REQUIRING AN ASSURANCE UNDER THE NURSE TRAINING ACT THAT THE FACILITY WILL BE USED FOR AT LEAST 20 YEARS FOR THE PURPOSES FOR WHICH IT WAS CONSTRUCTED (PHS ACT, SECTION 802 (B) (2) (A), 42 U.S.C. 296A (B) (2) (A) ( AS OPPOSED TO A 10-YEAR ASSURANCE OF CONTINUED USE UNDER THE HPEA ACT (PHS ACT, SECTION 721 (C) (2) (A), 42 U.S.C. 293A (C) (2) (A), AND THIS WAS MET BY THE SUBMISSION OF A REVISED ASSURANCE.) NEITHER THE PUBLIC HEALTH SERVICE NOR THE APPLICANT REGARDED THE REQUEST FOR FUNDS UNDER THE NURSE TRAINING ACT AS A NEW APPLICATION.

TO SUMMARIZE THE CHRONOLOGY OF CASE (1): (1) HPEA ACT ENACTED SEPTEMBER 1963; (2) ORIGINAL APPLICATION FILED MAY 1964; (3) NURSE TRAINING ACT ENACTED SEPTEMBER 1964 (AUTHORIZED APPROPRIATIONS FOR FISCAL YEAR ENDING JUNE 30, 1966); (4) CONSTRUCTION STARTED MAY 1965; (5) APPROPRIATIONS BECAME AVAILABLE UNDER NURSE TRAINING ACT AUGUST 1965; (6) "NEW" OR REVISED APPLICATION FILED SEPTEMBER 1965.

CASE (2): A UNIVERSITY PROPOSED TO CONSTRUCT A NEW NURSE TRAINING FACILITY WHICH WOULD INCLUDE SPACE FOR "COLLEGIATE" AS WELL AS "ASSOCIATE DEGREE" STUDENTS. IT SUBMITTED AN APPLICATION FOR A CONSTRUCTION GRANT ($1,200,000) UNDER THE HPEA ACT IN MAY OF 1964. SINCE THE PROPOSED PROJECT DID NOT MEET THE ACCREDITATION REQUIREMENTS FOR A "COLLEGIATE" SCHOOL, AND SINCE AN ASSOCIATE DEGREE PROGRAM WAS NOT ELIGIBLE UNDER THAT ACT, IT WAS FOUND TO BE INELIGIBLE FOR A CONSTRUCTION GRANT UNDER THE HPEA ACT. IN MARCH OF 1965, AFTER THE ENACTMENT OF THE NURSE TRAINING ACT BUT PRIOR TO THE DATE APPROPRIATIONS MADE PURSUANT TO THE AUTHORITY IN THAT ACT WERE AVAILABLE, CONSTRUCTION WAS BEGUN ON THE BUILDING. ON OCTOBER 4, 1965, WITH THE PROJECT OVER HALF COMPLETED, A NEW APPLICATION WAS FILED BY THE SCHOOL FOR A CONSTRUCTION GRANT ($455,200) UNDER THE NURSE TRAINING ACT, REQUESTING ASSISTANCE IN THE AMOUNT OF CONSTRUCTION STILL TO BE DONE. (THIS REQUEST WAS LIMITED TO THE AMOUNT OF WORK STILL TO BE DONE APPARENTLY BECAUSE THE APPLICANT WAS UNDER THE IMPRESSION THAT HE COULD NOT OBTAIN ASSISTANCE AS TO THE WORK ALREADY COMPLETED.) THE COLLEGIATE" PORTION OF THE PROJECT WAS STILL INELIGIBLE BECAUSE OF ACCREDITATION REQUIREMENTS, BUT THE "ASSOCIATE DEGREE" PROGRAM WAS THEN ELIGIBLE. THE AMOUNT OF WORK STILL TO BE DONE ON THE ,ASSOCIATE DEGREE" PORTION IS APPROXIMATELY $225,000.

TO SUMMARIZE THE CHRONOLOGY OF CASE (2): (1) HPEA ACT ENACTED SEPTEMBER 1963; (2) ORIGINAL APPLICATION FILED MAY 1964; (3) NURSE TRAINING ACT ENACTED SEPTEMBER 1964 (AUTHORIZING APPROPRIATIONS FOR FISCAL YEAR ENDING JUNE 30, 1966); (4) CONSTRUCTION STARTED MARCH 1965; (5) APPROPRIATIONS BECAME AVAILABLE UNDER NURSE TRAINING ACT AUGUST 1965; (6) NEW APPLICATION FILED OCTOBER 1965.

THE UNDER SECRETARY STATES IN THE LIGHT OF THE CIRCUMSTANCES OF THESE TWO CASES, THE QUESTION ARISES AS TO WHETHER, OR THE EXTENT TO WHICH, FEDERAL PARTICIPATION IN THE COSTS OF CONSTRUCTION OF THESE PROJECTS IS AUTHORIZED.

AS TO SUCH A QUESTION, THE UNDER SECRETARY UNDERSTANDS IT HAS BEEN OUR VIEW THAT THE FEDERAL GOVERNMENT MAY NOT PARTICIPATE "RETROACTIVELY" IN COSTS WHERE THE OBLIGATION AROSE BEFORE AN APPROPRIATION UNDER THE ENABLING LEGISLATION BECAME AVAILABLE, UNLESS THE LEGISLATION OR ITS HISTORY INDICATES A CONTRARY INTENT.

HE NOTES THAT IN 31 COMP. GEN. 308 (1952), WE HELD THAT, IN THE ABSENCE OF EVIDENCE OF A CONTRARY CONGRESSIONAL INTENT, RETROACTIVE PAYMENTS MAY NOT BE MADE UNDER THE FEDERAL CIVIL DEFENSE ACT OF 1950, 50 U.S.C. APP. 2251 NOTE, TO DEFRAY (IN WHOLE OR IN PART) THE COST OF OBLIGATIONS INCURRED OR EXPENDITURES MADE BY STATES PRIOR TO THE DATE ON WHICH THE APPROPRIATIONS BECAME AVAILABLE TO MAKE CONTRIBUTIONS TO THE STATES. ALSO REFERS TO OUR DECISION OF MAY 5, 1961, 40 COMP. GEN. 615 WHERE WE HELD--- QUOTING THE SYLLABUS--- THAT:

IN THE ABSENCE OF EXPRESS AUTHORITY FOR THE USE OF FEDERAL AID FUNDS TO DISCHARGE RETROACTIVELY OBLIGATIONS INCURRED BY THE STATES FOR FISH AND WILDLIFE RESTORATION PROJECTS PRIOR TO THE AVAILABILITY OF SUCH FUNDS, FEDERAL AID FUNDS PROVIDED UNDER THE PITTMAN-ROBERTSON AND DINGELL-JOHNSON ACTS, 16 U.S.C. 669-669I AND ID. 777-777K, ARE NOT AVAILABLE FOR PAYMENTS TO THE STATES IN SATISFACTION OF OBLIGATIONS OR EXPENDITURES MADE BY THE STATES FOR LAND PURCHASES FOR RESTORATION PROJECTS, PRIOR TO THE AVAILABILITY OF SUCH FUNDS, NOTWITHSTANDING THAT THE GOVERNMENT'S LIABILITY TO A STATE FOR REIMBURSEMENT WOULD BE CONTINGENT UPON THE FUTURE AVAILABILITY OF THE FUNDS.

HE POINTS OUT, HOWEVER, THAT IN CONNECTION WITH AN ONGOING CONSTRUCTION PROGRAM UNDER THE HILL-BURTON LEGISLATION (WHERE THE ALLOTMENT TO THE STATE HAD BEEN EXHAUSTED UNDER A PARTICULAR APPROPRIATION ACT), YOUR DEPARTMENT REQUESTED OUR DETERMINATION AS TO WHETHER THE FEDERAL GOVERNMENT MIGHT PARTICIPATE IN THE ENTIRE COST OF A PROJECT WHERE CONSTRUCTION WAS BEGUN AFTER THE SUBMITTAL OF AN APPLICATION WHICH MET ALL THE REQUIREMENTS OF THE ACT BUT WHICH, BECAUSE OF EXHAUSTION OF THE CURRENT ALLOTMENT TO THE STATE, COULD NOT BE APPROVED UNTIL ALLOTMENTS WERE MADE FOR THE SUCCEEDING FISCAL YEAR. AND THAT IN DECISION OF MAY 7, 1948, B-75414, WE STATED THAT, UNDER SUCH CIRCUMSTANCES:

* * * SHOULD THE SURGEON GENERAL, IN THE SUCCEEDING FISCAL YEAR, APPROVE SUCH AN APPLICATION PREVIOUSLY RECEIVED--- AND CONSIDERING THE ADMINISTRATIVE STATEMENT THAT PARTICIPATION IN THE ENTIRE COST OF CONSTRUCTION UNDER SUCH CIRCUMSTANCES IS ENTIRELY CONSISTENT WITH THE PURPOSES OF THE ACT IN FURNISHING ASSISTANCE IN THE CONSTRUCTION OF HOSPITALS IN ACCORDANCE WITH APPROVED STATES PLANS--- THERE APPEARS TO BE NO REASON WHY HE MAY NOT INCLUDE IN THE ESTIMATED COST OF CONSTRUCTION THE ENTIRE COST OF THE FACILITY INCURRED SUBSEQUENT TO RECEIPT OF THE APPLICATION.

THE UNDER SECRETARY BELIEVES THAT THE CIRCUMSTANCES PRESENTED BY THE INSTANT CASES MAY SIMILARLY WARRANT SPECIAL CONSIDERATION. HE STATES THAT EVEN THOUGH THE NURSE TRAINING ACT OF 1964 IS A NEW ENACTMENT, THE PROGRAM IS IN MANY RESPECTS ESSENTIALLY AN EXTENSION AND EXPANSION OF THE PRE- EXISTING PROGRAM OF NURSE TRAINING CONSTRUCTION UNDER THE HPEA ACT OF 1963; AND THAT FOR THOSE NURSE TRAINING FACILITIES WHICH WERE ELIGIBLE UNDER THE HPEA ACT, THE TWO PROGRAMS ARE FOR ALL PRACTICAL PURPOSES SUBSTANTIALLY THE SAME.

THE UNDER SECRETARY REFERS AGAIN TO THE FACT THAT THE EXPENDITURE OF FUNDS UNDER THE NURSE TRAINING ACT CONSTRUCTION PROGRAM WAS AUTHORIZED TO BEGIN ON THE DAY AFTER THE EXPIRATION OF THE SIMILAR PROGRAM UNDER THE HPEA ACT. HE BELIEVES IT TO BE SIGNIFICANT OF CONGRESS' INTENTION THAT UNDER THE BILL (H.R. 11241), AS PASSED BY THE HOUSE, THE ELIGIBILITY OF COLLEGIATE SCHOOLS OF NURSING FOR CONSTRUCTION ASSISTANCE UNDER THE HPEA ACT WOULD HAVE BEEN ELIMINATED AS OF JULY 1, 1964. HE NOTES THAT THE DATE WAS CHANGED TO JULY 1, 1965, BY THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE, AND, AS SO AMENDED, WAS ENACTED INTO LAW.

YOUR DEPARTMENT IS OF THE VIEW THAT THE NURSE TRAINING ACT SHOULD NOT BE TREATED AS AN ENTIRELY "NEW" PROGRAM WITH THE CONSEQUENCES THAT USUALLY MIGHT FOLLOW WITH RESPECT TO PROJECTS UNDERTAKEN PRIOR TO ENACTMENT. RATHER, YOUR DEPARTMENT BELIEVES THAT THE NURSING SCHOOL CONSTRUCTION PROGRAM MAY REASONABLY BE REGARDED AS A CONTINUING ONE UNDER WHICH AN APPROPRIATION HAD PREVIOUSLY BEEN MADE AVAILABLE BY CONGRESS TO IMPLEMENT THE ENABLING LEGISLATION. ACCORDING TO THE UNDER SECRETARY ON THIS BASIS IT MIGHT WELL BE CONCLUDED THAT, CONSISTENT WITH THE CONGRESSIONAL INTENT, THE RULE AGAINST "RETROACTIVE" PARTICIPATION IN CONSTRUCTION WHICH WAS STARTED PRIOR TO THE AVAILABILITY OF AN APPROPRIATION UNDER THE ENABLING LEGISLATION NEED NOT APPLY IN THESE CASES.

THE UNDER SECRETARY'S LETTER CONTINUES:

ADMITTEDLY, A DISTINCTION MAY BE DRAWN BETWEEN CASE (1) AND CASE (2). CASE (1) THE PROJECT WAS ELIGIBLE UNDER BOTH STATUTES; IN CASE (2) THE SCHOOL, AS AN ASSOCIATE DEGREE PROGRAM, WAS INELIGIBLE FOR ASSISTANCE UNDER THE HPEA ACT, AND AT THE TIME THE FIRST APPLICATION WAS FILED THE NURSE TRAINING ACT HAD NOT YET BEEN ENACTED. HOWEVER, THERE WAS ALREADY IN EXISTENCE A PROGRAM TO AID IN THE CONSTRUCTION OF SCHOOLS OF NURSING AND, AS STATED ABOVE, CONGRESS INDICATED ITS INTENTION THAT THE TRANSITION FROM THE OLD PROGRAM TO THE NEW ONE BE MADE SO AS NOT TO WITHDRAW FEDERAL ASSISTANCE FROM PROJECTS WHICH MIGHT OTHERWISE RECEIVE SUCH ASSISTANCE.

THUS, WE BELIEVE IT IS NOT UNREASONABLE TO SUGGEST THAT IN THE CONTEXT OF THIS PARTICULAR FEDERAL PROGRAM YOUR PRIOR RULINGS ARE NOT NECESSARILY CONTROLLING.

ACCORDINGLY, WE WOULD APPRECIATE BEING INFORMED AS TO WHETHER YOUR OFFICE WOULD FEEL REQUIRED TO OBJECT TO THE AWARDING OF GRANTS TO THE APPLICANTS IN CASES (1) AND (2) BASED ON THE FEDERAL SHARE OF THE ENTIRE COST OF CONSTRUCTION OF EACH FACILITY. IF YOU WOULD FEEL SO REQUIRED, WOULD YOU ALSO FIND OBJECTIONABLE FEDERAL PARTICIPATION IN EITHER PROJECT MEASURED BY THE AMOUNT OF WORK STILL TO BE DONE AFTER FUNDS BECAME AVAILABLE UNDER THE APPROPRIATION ACT (P.L. 89-156, APPROVED AUGUST 31, 1965) EVEN THOUGH THE CONSTRUCTION WORK WAS STARTED PURSUANT TO AN OBLIGATION ENTERED INTO BEFORE ENACTMENT OF THAT ACT? AS INDICATED IN THE UNDER SECRETARY'S LETTER WE HAVE HELD, IN EFFECT, IN CONNECTION WITH GRANTS, THAT THE FEDERAL GOVERNMENT MAY NOT PARTICIPATE RETROACTIVELY IN COSTS WHERE THE OBLIGATION AROSE BEFORE AN APPROPRIATION UNDER THE ENABLING LEGISLATION BECAME AVAILABLE, UNLESS THE LEGISLATION OR ITS HISTORY INDICATES A CONTRARY INTENT. WHILE THE NURSE TRAINING ACT OF 1964 IS A NEW ENACTMENT, THE PROGRAM IS, IN MOST RESPECTS, INSOFAR AS "COLLEGIATE" SCHOOLS OF NURSING ARE CONCERNED, ESSENTIALLY AN EXTENSION OF THE PRE-EXISTING PROGRAM OF NURSE TRAINING CONSTRUCTION UNDER THE HPEA ACT OF 1963. THUS, AS STATED IN THE UNDER SECRETARY'S LETTER, FOR THOSE NURSE TRAINING FACILITIES WHICH WERE ELIGIBLE UNDER THE HPEA ACT, THE TWO PROGRAMS ARE FOR ALL PRACTICAL PURPOSES SUBSTANTIALLY THE SAME. ACCORDINGLY, AND CONSIDERING ALL THE OTHER FACTS AND CIRCUMSTANCES, TOGETHER WITH THE HOLDING IN B-75414, DATED MAY 7, 1948, REFERRED TO IN THE UNDER SECRETARY'S LETTER, WE WOULD NOT BE REQUIRED TO OBJECT TO THE AWARDING OF A GRANT TO THE APPLICANT IN CASE (1) BASED ON THE FEDERAL SHARE OF THE ENTIRE COST OF CONSTRUCTION, IF THE SURGEON GENERAL APPROVES THE APPLICATION PREVIOUSLY RECEIVED.

AS TO CASE (2), THE PROPOSED PROJECT WAS NOT ELIGIBLE FOR CONSTRUCTION GRANT ASSISTANCE UNDER THE 1963 STATUTE (HPEA ACT), AND AT THE TIME THE FIRST APPLICATION WAS FILED THE NURSE TRAINING ACT OF 1964 HAD NOT YET BEEN ENACTED. INSOFAR AS THE "ASSOCIATE DEGREE" PROGRAM WAS CONCERNED THE PROGRAM AUTHORIZED IN THE 1964 ACT WAS NOT AN EXTENSION OF A PRE-EXISTING PROGRAM. THUS, THE TRANSITION FROM THE OLD PROGRAM TO THE NEW PROGRAM DID NOT HAVE THE EFFECT OF WITHDRAWING FEDERAL ASSISTANCE FROM A PROJECT WHICH OTHERWISE MIGHT HAVE RECEIVED SUCH ASSISTANCE. ACCORDINGLY, A GRANT TO THE APPLICANT IN CASE (2) BASED ON THE FEDERAL SHARE OF THE ENTIRE COST OF CONSTRUCTION OF SUCH PROJECT MAY NOT BE MADE. WE NOTE, HOWEVER, THAT THE TERM "CONSTRUCTION" IS DEFINED IN SECTION 843 (I) OF THE 1964 ACT, 42 U.S.C. 298B (I), AS INCLUDING "EXPANSION, REMODELING, REPLACEMENT, AND ALTERATION OF EXISTING BUILDINGS.' THUS, IT WOULD NOT BE UNREASONABLE TO CONSIDER THAT THE COMPLETION OF THE FACILITY IS THE PROJECT FOR WHICH FEDERAL AID IS REQUESTED. CF. B-75414, MAY 7, 1948. ACCORDINGLY WE WOULD NOT OBJECT TO FEDERAL PARTICIPATION IN THE "CASE (2)" PROJECT MEASURED BY THE AMOUNT OF WORK STILL TO BE DONE AFTER THE DATE (OCTOBER 4, 1965) THE NEW APPLICATION WAS FILED, IF OTHERWISE PROPER, SINCE GRANT FUNDS WERE AVAILABLE UNDER THE APPROPRIATION ACT INVOLVED (PUBLIC LAW 89-156, APPROVED AUGUST 31, 1965) ON THAT DATE.