Dist. of Col. Pod. Soc. v. District of Columbia

• Decision Date: 26 November 1975
• Docket Number: Civ. A. No. 74-772.
• Citation: 407 F. Supp. 1259
• Parties: The DISTRICT OF COLUMBIA PODIATRY SOCIETY et al., Plaintiffs, v. The DISTRICT OF COLUMBIA et al., Defendants.
• Court: U.S. District Court — District of Columbia

407 F. Supp. 1259

The DISTRICT OF COLUMBIA PODIATRY SOCIETY et al., Plaintiffs, v. The DISTRICT OF COLUMBIA et al., Defendants.

Civ. A. No. 74-772.

United States District Court, District of Columbia.

November 26, 1975.

COPYRIGHT MATERIAL OMITTED

Richard Medalie, Washington, D. C., for plaintiffs.

Martin Grossman, Asst. Corp. Counsel, Washington, D. C., for defendants.

MEMORANDUM

GASCH, District Judge.

Plaintiffs in this action challenge various aspects of the District of Columbia Medicaid Plan relating to podiatric services. The matter is before the Court at this juncture on the litigants' cross-motions for summary judgment.

The plaintiffs include the District of Columbia Podiatry Society, a professional association of Doctors of Podiatric Medicine (hereinafter, podiatrists), all licensed to practice podiatric medicine in the District of Columbia, and eleven individual podiatrists. Defendants include the District of Columbia, Walter E. Washington, the Mayor-Commissioner of the District of Columbia, and Joseph P. Yeldell, the Director of the Department of Human Resources of the District of Columbia, and the administrator of the District of Columbia Medicaid Program.

Title XIX of the Social Security Act (Medicaid)¹ provides for a federal program of medical assistance to individuals whose economic resources are insufficient to meet the cost of necessary medical services. It is a grant-in-aid project providing matching federal monies to participating states. The funds are channeled through an appropriate state agency to providers of medical services. Participation by a state is voluntary, but in order to receive federal funds, the state's program must meet certain federal requirements.

The District of Columbia elected to participate and commenced its Medicaid Program as of July 1, 1968. From time to time the District of Columbia Medicaid Plan (D.C. Plan) was amended. All D.C. Plans have been approved by the Secretary of Health, Education, and Welfare (HEW) pursuant to the requirements of Title XIX.² In relevant part, the most recent D.C. Plan (effective January 1, 1974) contains a "Schedule of Authorized Procedures and Relative Value Scale for Participating Podiatrists." This schedule specifies the podiatric services which are compensable under the D.C. Plan and the amount of such compensation.

The plaintiffs present three challenges to these provisions of the D.C. Plan.³ First, they allege that the podiatrists participating in the District of Columbia Medicaid Program are entitled by federal statute and regulations to be compensated under Medicaid for all services they may legally perform as licensed podiatrists, rather than just those services specified in the D.C. Plan. Second, they argue that the defendants in setting fees for podiatrists under the D.C. Plan have failed to comply with the requirements of the Medicaid statute and regulations.⁴ Third, plaintiffs in their motion for summary judgment have challenged the constitutionality of the Medicaid statute and have requested the Court to convene a three-judge court pursuant to 28 U.S.C. §§ 2282 and 2284.⁵

Plaintiffs have sought declaratory and injunctive relief against the defendants' enforcement of the complained of provisions of the D.C. Plan.⁶ Having considered the pleadings and oral argument of the parties, the Court has determined that the actions of the defendants do not violate the provisions of the Medicaid statute or regulations. Furthermore, the Court has determined that plaintiffs' constitutional challenge is inappropriate and without merit.

THE "SCOPE OF SERVICES" ISSUE

Plaintiffs contend that, by limiting the podiatric services that podiatrists may provide under the D.C. Medicaid Plan while permitting physicians to furnish a full range of podiatric care, the defendants have violated the Medicaid provisions of the Social Security Act and its regulations. The statute and regulations require that any State Plan must include, at the least, the following five health services listed in the statute (the mandatory services):⁷ (1) inpatient hospital services; (2) outpatient hospital services; (3) other laboratory and X-ray services; (4) skilled nursing facility services, screening and diagnostic services, and family planning services; and (5) physicians' services.⁸ The statute also includes optional health services which may be included in a State Plan if the state so elects.⁹ One of these optional health services is:

6) medical care, or any other type of remedial care recognized under State law, furnished by licensed practitioners within the scope of their practice as defined by State law.¹⁰

The D.C. Plan includes this class of health services; it is undisputed that podiatric care falls within this classification. Podiatric care as defined by District of Columbia law is:

the surgical, medical, or mechanical treatment of any ailment of the human foot, except the amputation of the foot or any of the toes; and, also, except the use of an anesthetic other than a local one.¹¹

Plaintiffs contend that once defendants elected to include the optional services in the D.C. Plan, they were required to do so to the full extent that such services are defined by District of Columbia law. This, it is conceded by defendants, has not been done. Plaintiffs' position is that any valid limitation on the broad language of the statute must be express. They point to the provision of § 1396d(g)(2) which restricts the scope of chiropractic services compensable under Medicaid. They contend that since there is no comparable provision in the statute or regulations permitting or requiring a limitation on podiatric services, defendants' actions are unlawful.

Plaintiffs' argument fails because of the invalidity of its basic premise that the broad language of the statute was meant to curtail the discretion of the states in devising their Medicaid Plans. Rather, the provisions of Title XIX provide for a "scheme of cooperative federalism."¹² A reading of Title XIX clearly indicates the intent of Congress to give the states considerable discretion and latitude in devising their Medicaid Plans. Thus, federal funds are appropriated under Title XIX "for the purpose of enabling each State, as far as practicable under the conditions in such State," to furnish medical assistance and services.¹³ States can choose whether to participate at all; a participating state can choose to include in its plan only the "categorically needy,"¹⁴ or it can also include the "medically needy";¹⁵ a participating state is free to choose which, if any, of the optional services it will include in its Plan.¹⁶ Such options, amongst others in the statute, are designed to afford each state the opportunity to design a Medicaid Plan tailored to the needs and conditions in that state.

Moreover, this need for flexibility is mandated by financial considerations. Title XIX is a welfare assistance program with limited funding. It is not an insurance program such as Medicare. Even an insurance program (let alone an assistance program) cannot provide coverage for all possible health services. Therefore, it is necessary for Medicaid funds to be used in the most economical manner possible,¹⁷ and it has been left to the States, operating within the Federal guidelines, to make such economic determinations.

The defendants, in exercising this discretion, have determined which services performed by podiatrists are sufficiently essential to maintaining the general health of Medicaid recipients so as to warrant coverage under Medicaid. It is clear that podiatrists are not compensated under the D.C. Plan for all services they may legally perform. But for that matter, neither is any other provider of medical services compensated for all such services.¹⁸ A similar argument was recently raised in the Third Circuit case of Doe v. Beal.¹⁹ Plaintiffs there attacked the Pennsylvania Medicaid Plan for failing to compensate Medicaid recipients for the costs of elective abortions. The challengers argued that since Roe v. Wade²⁰ and Doe v. Bolton²¹ required the states to legalize the practice of elective abortion during the first two trimesters of pregnancy, elective abortion was included in the statutory definition of "physicians services,"²² and was therefore required to be furnished to Medicaid recipients by § 1396a(a)(13)(B) and (C). The Third Circuit, sitting en banc, rejected this argument, pointing out, for example, that since elective cosmetic surgery is within the licensed practice of medicine, the state, under plaintiffs' argument, would be required to pay for such medical services at the expense, perhaps, of the more urgent medical needs of the poor. As the Court indicated:

The states are given broad discretion to tailor their programs to their particular needs, and are required to economize and to fund only necessary medical expenses.²³

In addition, the Medicaid regulations promulgated by the Department of Health, Education, and Welfare indicate that the language "within the scope of their practice as defined by State law"²⁴ does not require that podiatrists or any other medical care provider be compensated for every procedure or service they may legally perform. In relevant part these regulations provide that a State Medicaid Plan must:

Specify the amount and/or duration of each item of medical and remedial care and services that will be provided to the categorically needy and to the medically needy, if the plan includes this latter group. Such items must be sufficient in amount, duration and scope to reasonably achieve their purpose. . . . Appropriate limits may be placed on services based on such criteria as medical necessity or those contained in utilization or medical review procedures.²⁵

Although this passage, as plaintiffs contend, is intended to broaden the scope of medical care and services to insure that the recipients receive comprehensive medical care, it is also intended to give the states the...