Sandefur v. Cherry
| Decision Date | 13 October 1983 |
| Docket Number | No. 82-3564,82-3564 |
| Parties | , Medicare&Medicaid Gu 33,457 James D. SANDEFUR, O.D. and W.E. Marionneaux, Jr., O.D., Plaintiffs-Appellants, v. William A. CHERRY, M.D., Secretary of the Louisiana Department of Health and Human Resources, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Henry B. Bruser, III, Robert G. Nida, Alexandria, La., for plaintiffs-appellants.
Charles E. Daspit, Dept. of Health & Human Resources, Baton Rouge, La., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Louisiana.
Before RUBIN and JOLLY, Circuit Judges, and PUTNAM *, District Judge.
Louisiana's Medicaid plan authorizes reimbursement of ophthalmologists for any medically necessary eye care they provide to needy persons. The plan allows reimbursement of optometrists only for prescribing eyeglasses to persons who have had cataract surgery and for eye care they furnish to persons under 21 years of age. The plaintiffs, licensed optometrists, contend that the reimbursement policies violate state and federal law because, unlike ophthalmologists, they are not reimbursed for eye examinations of needy persons. The district court ruled for the defendants after trial, dismissing the complaint. Sandefur v. Cherry, 547 F.Supp. 418 (M.D.La.1982). We affirm the dismissal of the federal claims, but certify the pendent state claim to the Louisiana Supreme Court.
At the time this suit was filed, general federal question jurisdiction required that the amount in controversy exceed $10,000 1 and jurisdiction under 28 U.S.C. Sec. 1343 was unavailable for Social Security claims. 2 The district judge held that, because the plaintiffs invoked a federal statute and the supremacy clause, federal jurisdiction was available under 28 U.S.C. Sec. 1331 (1976) and pendent jurisdiction existed over the equal protection, due process, and state law claims. 3
While this case was pending, Congress amended Sec. 1331 to eliminate the $10,000 amount-in-controversy requirement. 4 Absent manifest injustice, we apply the law in effect at the time we render our decision. 5 Bradley v. School Board establishes a three-part test to determine whether we should apply current law, focusing on the nature of the parties, the nature of their rights, and the nature of the impact of the change in the law on these rights. 416 U.S. at 717, 94 S.Ct. at 2019, 40 L.Ed.2d at 491-92. Under current law, the district court would have jurisdiction over the claim based on the supremacy clause and over the other federal claims. 6 Therefore, it would be wasteful to both the parties and the courts to dismiss this appeal for lack of federal jurisdiction, for it could be at once refiled. Whether or not the original complaint conferred jurisdiction, we now have jurisdiction over the federal claims.
The state law issue is unsettled and difficult. We may vindicate the policies of comity and finality articulated in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), by certifying that question to the Louisiana Supreme Court. 7 We may do so, however, only if the state-law claim is determinative of the case. 8 Therefore, we must first decide the federal claims.
We recognize that this approach is contrary to the general principle of avoiding decision of federal questions when state questions might moot the federal claim. 9 That principle rests upon judicial self-restraint and is not jurisdictional. Such abnegation here would defeat an even stronger policy: allowing state courts to decide state law when possible, if this does not defeat properly invoked federal jurisdiction. Patently if we decline to decide the federal questions the Louisiana Supreme Court might decline to decide the state question. Therefore, we proceed to the merits of the federal claims.
Title XIX of the Social Security Act 10 establishes the Medicaid program. Medicaid depends upon cooperative federalism, for the federal government assists participating states in funding health care for needy persons. Participating states submit a medical assistance plan for approval by the Secretary of Health and Human Services. 11
The state is not obliged to provide care to all needy persons. If it participates in the Medicaid program, it must provide assistance to the "categorically" needy. 12 It may, at its option, also cover the "medically needy." 13 Each state plan must provide financial assistance for five general areas of medical treatment: inpatient hospital services, outpatient hospital services, other laboratory and x-ray services, skilled nursing facilities, and physicians' services. 14 The state has broad discretion with respect to the coverage it provides in each of these categories, but its plan must provide medical assistance "sufficient in amount, duration, and scope to reasonably achieve its purpose," 15 based on "reasonable standards" consistent with the purposes of the Act. 16 Thus a state may decline to pay for some medically prescribed devices, such as eyeglasses and orthopedic shoes, 17 and may refuse to reimburse patients for visits to certain health care providers, such as chiropractors and podiatrists. 18 Care provided by optometrists, who are not doctors of medicine, but are licensed in Louisiana to employ or apply any means other than surgery "for the measurement of the powers and testing the range of vision of the human eye," 19 is one of the optional services.
For some time after it began participating in the Medicaid program, Louisiana had an "informal" plan. Since 1976, the federal government has provided printed pages for possible inclusion in state plans. Each page contains one or more statements followed by blank spaces to answer in accordance with a number of options, such as "yes," "no," and "not applicable." The state agency responsible for developing the Medicaid plan "drafts" the plan by assembling a set of pages and checking the box or boxes on each page indicating the state's coverage. Thus Louisiana's current plan consists of hundreds of "checked-off" pages with explanatory material appended.
Louisiana's plan provides coverage "with limitations" for care by optometrists. Optometrists are paid for "cataract glasses or contact lenses following cataract surgery." 20 However, Louisiana's plan provides greater coverage for care rendered by ophthalmologists. Because ophthalmologists are physicians, their services in making eye examinations and prescribing eyeglasses are covered provided that the patient has not used all of the twelve visits the state plan permits each year and the care is "medically necessary."
The plaintiffs contend that this distinction is inconsistent with the Medicaid statute and regulations and violates the due process and equal protection clauses of the United States Constitution. We consider these arguments in turn.
The plaintiffs' supremacy clause argument turns on whether Sec. 3.1(f) of Louisiana's plan is inconsistent with federal requirements. The relevant printed page, incorporated as part of Louisiana's plan, states:
Optometric Services
Optometric services (other than those provided under Secs. 435.531 and 436.531) are not now but were previously provided under the plan. Services of the type an optometrist is legally authorized to perform are specifically included in the term "physicians' services" under this plan and are reimbursed whether furnished by a physician or an optometrist.
This printed statement is followed by boxes for "yes," "no," and "not applicable." At the time the plaintiffs filed suit, there was an "x" in the box next to the word "yes." After the suit was filed, Louisiana officials altered the description of the plan by placing the "x" in the box next to the words: The state contends that Louisiana never provided these services and that the first form was, therefore, incorrectly completed with a "yes" answer. The "amendment," it contends, did not reflect a real change in policy but merely a correction of the earlier mistake.
The plaintiffs, however, contend that the original document was a correct statement and ipso facto constitutes Louisiana's plan; consequently, the change in the description of the plan violates Sec. 1396d(e) of the Act. That section, which is set forth in full in the margin, requires the state to reimburse optometrists for "services of the type which an optometrist is legally authorized to perform" if the state plan does not now reimburse optometrists for those services but did so at one time. 21
Congress added this section in 1972 to prevent states from dropping optometric care from their state plans but continuing "to provide for eye care which an optometrist is licensed to provide under physicians' services...." 22 Congress intended to require states that had reimbursed optometrists for their services to continue to reimburse them if the state now reimburses physicians for eye care that optometrists are legally authorized to perform. In short, states subject to this provision must pay for such care "whether provided by a physician or an optometrist; optometrists could not be excluded as potential providers in these cases." 23
The plaintiffs argue that the state's "yes" answer on the printed form and its change to an answer indicating "not applicable" "proves" both that Louisiana "at one time did provide for payment of the services of the type which optometrists are legally authorized to perform," and that the state later reduced its coverage to "provision for limited optometric services." This argument confuses words with reality. A change by Louisiana in the words on a form does not establish a violation of the statute, for the statute forbids only a change in the state's action, not a change making language conform to actual policy. Thus, Louisiana would have...
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