Com. of Mass. v. Heckler, Civ. A. No. 83-2523-G.

• Decision Date: 27 August 1985
• Docket Number: Civ. A. No. 83-2523-G.
• Citation: 616 F. Supp. 687
• Parties: COMMONWEALTH OF MASSACHUSETTS, Plaintiff, v. Margaret HECKLER et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

616 F. Supp. 687

COMMONWEALTH OF MASSACHUSETTS, Plaintiff, v. Margaret HECKLER et al., Defendants.

Civ. A. No. 83-2523-G.

United States District Court, D. Massachusetts.

August 27, 1985.

Thomas A. Barnico, Asst. Atty. Gen., Boston, Mass., for plaintiff.

Karen M. Green, Asst. U.S. Atty., Boston, Mass., for defendants.

MEMORANDUM AND ORDERS ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

GARRITY, District Judge.

In this action, the Commonwealth of Massachusetts ("Commonwealth") seeks review of a May 31, 1983 decision of the Department Grant Appeals Board ("the Board") of the Health Care Financing Administration ("HCFA") of the Department of Health and Human Services ("HHS"), which held that certain services provided to persons residing in state-owned intermediate care facilities for the mentally retarded ("ICF/MRs") were not eligible for reimbursement under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. ("the Medicaid program"). The Board disallowed $6,414,964 in federal financial participation ("FFP") advanced to the Commonwealth between July 1, 1978 and December 31, 1980, claiming that those costs were incurred by the Commonwealth in providing educational services and were therefore not reimbursable under the Medicaid program. The Commonwealth contests this decision, claiming that the services in question are reimbursable under Medicaid. Jurisdiction is based on 28 U.S.C. § 1331. The parties have filed cross-motions for summary judgment. After hearing oral argument and considering the briefs and administrative record,¹ the court grants the Commonwealth's motion for summary judgment and denies defendants' motion.

I. Relevant Statutory and Regulatory Background

The Medicaid program, created in 1965, is designed to assist states in providing "(1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care." 42 U.S.C. § 1396. Under the Medicaid program, such services are financed in part by federal grants to participating states which have submitted, and had approved by the Secretary of HHS, state plans for medical assistance. Id. The federal government pays a certain percentage of the total cost of Medicaid services, and the balance is paid by the state. 42 U.S.C. § 1396b(a).²

In 1971, Congress included in the Medicaid program "intermediate care facility services." 42 U.S.C. § 1396d(a)(15). An ICF is defined as

an institution which is (1) licensed under state law to provide, on a regular basis, health-related care and services to individuals who do not require the degree of care and treatment which a hospital or skilled nursing facility is designed to provide, but who because of their mental or physical condition require care and service (above the level of room and board) which can be made available to them only through institutional facilities, (2) meets such standards prescribed by the Secretary as he finds appropriate for the proper provision of such care, and (3) meets such standards of safety and sanitation as are established under regulation of the Secretary in addition to those applicable to nursing facilities under State law....

42 U.S.C. § 1396d(c). 42 U.S.C. § 1396d(d) provides the following:

(d) Intermediate care facility services

The term "intermediate care facility services" may include services in a public institution (or distinct part thereof) for the mentally retarded or persons with related conditions if —

(1) the primary purpose of such institution (or distinct part thereof) is to provide health or rehabilitative services for mentally retarded individuals and which meet such standards as may be prescribed by the Secretary;

(2) the mentally retarded individual with respect to whom a request for payment is made under a plan approved under this subchapter is receiving active treatment under such a program; and

(3) the State or political subdivision responsible for the operation of such institution has agreed that the non-Federal expenditures in any calendar quarter prior to January 1, 1975, with respect to services furnished to patients in such institution (or distinct part thereof) in the State will not, because of payments made under this subchapter, be reduced below the average amount expended for such services in such institution in the four quarters immediately preceding the quarter in which the State in which such institution is located elected to make such services available under its plan approved under this subchapter.

Under the Social Security Act, the Secretary of HHS is authorized to promulgate rules and regulations, not inconsistent with the Act, as are necessary to the efficient administration of her functions under the Act. 42 U.S.C. § 1302. Pursuant to this authority, the Secretary promulgated 42 C.F.R. § 441.13(b), which provides the following:

Payments to institutions for the mentally retarded or persons with related conditions and to psychiatric facilities or programs providing inpatient psychiatric services to individuals under age 21 may not include reimbursement for vocational training and educational activities.

II. State Background

The Commonwealth has participated in the Medicaid program since 1966. The Massachusetts Department of Public Welfare is responsible for administering the Massachusetts plan. The Massachusetts Department of Mental Health ("DMH") operates the state-owned ICF/MRs certified to participate in the Medicaid program. As an ICF/MR operator, the DMH is responsible for complying with the statutory and regulatory requirements of ICF/MRs under the Medicaid program. In particular, the DMH must ensure that all mentally retarded individuals residing in ICF/MRs are receiving active treatment, in accordance with 42 U.S.C. § 1396d(d)(2). Under the Secretary's regulations, "active treatment" requires among other things that these individuals regularly participate in "professionally developed and supervised activities, experiences or therapies" and that each individual receive an "individual written plan of care", known as an "ISP" (Individual Service Plan), which sets forth measurable goals or objectives and an integrated program of activities or therapies designed to achieve those goals. 45 C.F.R. § 435.1009. According to the regulation, "the overall purpose of the plan is to help the individual function at the greatest physical, intellectual, social, or vocational level he can presently or potentially achieve." 42 C.F.R. § 435.1009(b).

Pursuant to state law, the Commonwealth is also required to provide special education to all school age children with special needs in Massachusetts. Chapter 766 of the Acts of 1972, M.G.L. c. 71B ("Chapter 766"). Special education is defined as "everything which is required to be provided to a child in need of special education pursuant to the IEP." Chapter 766 Regulations, 122.0. The IEP (Individual Education Plan), which is prepared for each Massachusetts child with special needs, describes the child's educational abilities and goals and sets forth methodologies and teaching approaches designed to meet these goals. See Chapter 766 Regulations, § 322.0.

Section 12 of Chapter 766 requires that the Department of Education ("DOE") establish and maintain a school department for school-age children in each ICF/MR and provide services jointly with the DMH. M.G.L. c. 71B, § 12. The director and staff of such school departments are employees of the DOE, which is responsible for the costs of all aspects of the educational programs in the ICF/MRs. Id. The Bureau of Institutional Schools ("BIS") of the Division of Special Education of the DOE is responsible for administering the educational programs at ICF/MRs pursuant to Chapter 766. Chapter 766 Regulations, § 700.0.

The Commonwealth, in an effort to comply with both state and federal law concerning the treatment of the mentally retarded at ICF/MRs and to promote efficiency, has consolidated the administration of the services provided by the DMH pursuant to the "active treatment" requirement of Medicaid and the services provided by the BIS pursuant to Chapter 766. Each individual residing in an ICF/MR who is required to have an annual ISP developed in accordance with the Medicaid regulations and an annual IEP developed in accordance with Chapter 766, is evaluated annually through a "Joint Review Process", in which DMH and BIS staff develop a joint plan meeting the requirements of federal and state law. The DMH then delegates the services required in each individual's plan to the appropriate professional groups. The Commonwealth also utilizes a "Transdisciplinary Approach" in its staffing. This approach encourages "role release" by different professionals, or the sharing of one's expertise with others of different professions, in order to consolidate the staff and to ensure continuity and consistency in the delivery of services to these individuals.

Concerned that in providing the services to individuals at ICF/MRs there would be difficulty distinguishing between payments for services which are reimbursable under the Medicaid program and those which are not, the Commonwealth sought clarification from the regional Medicaid office of HHS and received an interpretative bulletin, Action Transmittal HCFA-AT-78-104 ("the Action Transmittal") in response (attached as Appendix 1). The Action Transmittal, dated November 29, 1978, was issued by HHS in an effort to clarify the relationship between the Medicaid program and the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1400 et seq. ("EAHCA") with respect to services provided to individuals residing at ICF/MRs. Briefly, EAHCA requires that in order to qualify for federal education assistance under the statute, the state must...