The opinion of the court was delivered by: LUONGO
This civil action presents a challenge to section 443.1 of the Pennsylvania Public Welfare Code, as amended, Pa. Stat. Ann. tit. 62, § 443.1 (Purdon Supp. 1978), which imposes certain limits on medical assistance benefits payable for inpatient care in a private psychiatric hospital. John Doe, the pseudonymous plaintiff, is presently an inpatient at the Institute of Pennsylvania Hospital, a private psychiatric hospital located in Philadelphia. Under the challenged statutory provision, plaintiff has exhausted his currently available benefits, and he seeks a judicial determination that he is entitled to further benefits in order that he may remain an inpatient. On May 31, 1978, I entered a temporary restraining order directing defendants, who are officials of the Pennsylvania Department of Public Welfare, to continue paying benefits to the Institute of Pennsylvania Hospital on behalf of plaintiff. On June 7 and 12, I heard testimony and argument bearing on plaintiff's motion for a preliminary injunction, and I extended the restraining order pending my decision on that motion. For the reasons hereafter stated, I now conclude that the motion for a preliminary injunction must be denied.
Title XIX of the Social Security Act, 42 U.S.C.A. §§ 1396-1396k (1974 & Supp. 1978), "establishes the Medicaid program under which participating States may provide federally funded medical assistance to needy persons." Beal v. Doe, 432 U.S. 438, 440, 53 L. Ed. 2d 464, 97 S. Ct. 2366 (1977) (footnote omitted). The Commonwealth of Pennsylvania participates in the Medicaid program, and it has implemented a federally-approved "plan for medical assistance." 42 U.S.C.A. § 1396a (1974 & Supp. 1978). Although participating states must provide medical assistance benefits for certain specific services, 42 U.S.C.A. § 1396a(a)(13) (1974 & Supp. 1978), Title XIX generally "confers broad discretion on the States to adopt standards for determining the extent of medical assistance, requiring only that such standards be 'reasonable' and 'consistent with the objectives' of the Act." Beal v. Doe, 432 U.S. 438, 444, 53 L. Ed. 2d 464, 97 S. Ct. 2366 (1977) (footnote omitted) (quoting 42 U.S.C. § 1396a(a)(17) (Supp. V 1975)).
At issue here is section 443.1 of the Pennsylvania Public Welfare Code, as amended, which defines the extent of medical assistance available under the Pennsylvania plan for various types of institutional care. This section differentiates sharply between general inpatient hospital care, on the one hand, and inpatient care in a private psychiatric hospital, on the other. With respect to the former, section 443.1(1) authorizes medical assistance payments for "the reasonable cost of inpatient hospital care." Pa. Stat. Ann. tit. 62, § 443.1(1) (Purdon Supp. 1978). With respect to the latter, however, section 443.1(4) provides that benefits for "care in a private mental hospital shall be limited to sixty days in a benefit period." Id. § 443.1(4). See also note 3 infra. When read in conjunction with the statutory definition of "benefit period," this limitation requires an individual who has received medical assistance benefits for sixty days of inpatient care in a private psychiatric hospital to undergo a sixty-day period "during each day of which he is not an inpatient in a hospital" in order to become eligible for an additional sixty days' benefits. Id. § 402. Each time an individual receives such additional benefits, he must again become an outpatient for sixty days as a prerequisite to receipt of further benefits for inpatient care in a private psychiatric hospital.
Plaintiff is an incompetent adult presently residing at the Institute of Pennsylvania Hospital. Although he desires to remain there as an inpatient, the Pennsylvania Department of Public Welfare, which pays out benefits under the Pennsylvania medical assistance plan, "will make no further payments for plaintiff's private in-patient psychiatric care because [he] has exhausted his benefit period." Stipulation para. 10.
Plaintiff, using the fictitious name of John Doe, "brings this action by his next friend and father" under the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1970). Complaint para. 2. He urges that Pennsylvania's sixty-day limitation on benefits for inpatient psychiatric care violates both the equal protection clause and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp. V 1975), and he seeks both declaratory and injunctive relief. Jurisdiction over this action is conferred by sections 1331, 1343(3), and 1343(4) of title 28, United States Code.
In deciding whether to grant preliminary injunctive relief, a district court generally focuses on two issues: (1) Has the moving party shown that he will be irreparably harmed before the case can be finally determined unless relief pendente lite is granted? (2) Has the moving party shown a reasonable probability that he will prevail on the merits when the case is finally determined? In addition to these considerations, however, the court "should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest." Delaware River Port Auth. v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 920 (3d Cir. 1974); see, e.g., A. O. Smith Corp. v. Federal Trade Comm'n, 530 F.2d 515, 525 (3d Cir. 1976); Virginia Petroleum Jobbers Ass'n v. Federal Power Comm'n, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (1958) (per curiam), followed in Parker v. Penn Central Transp. Co. (In re Penn Central Transp. Co.), 457 F.2d 381, 384-85 (3d Cir. 1972). Underlying these formulations, of course, is the concern "to minimize the probable irreparable loss of rights caused by errors incident to hasty decision." Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv. L. Rev. 525, 541 (1978). After careful consideration of the testimony and arguments presented in this case, I conclude that plaintiff's likelihood of ultimate success on the merits is so slight as to preclude the issuance of preliminary injunctive relief.
With respect to the "irreparable injury" requirement, the Third Circuit has noted:
"An essential prerequisite to the grant of a preliminary injunction is a showing by the movant of irreparable injury pendente lite if the relief is not granted. The key aspect of this prerequisite is proof that the feared injury is irreparable; mere injury, even if serious or substantial, is not sufficient."
United States v. Pennsylvania, 533 F.2d 107, 110 (3d Cir. 1976) (citations omitted).
Based on the evidence submitted at the hearing, I find that plaintiff very possibly will suffer irreparable harm unless defendants are preliminarily enjoined to continue paying medical assistance benefits on his behalf.
In attempting to meet the "irreparable injury" requirement, plaintiff relied largely on the expert testimony of Dr. Nathan L. Comer, his treating psychiatrist at the Institute of Pennsylvania Hospital. Dr. Comer testified at his deposition that plaintiff was referred to the Institute in early April of 1978, following an unsuccessful attempt at suicide. N.T. 4. Since that time, Dr. Comer has seen plaintiff approximately three times a week for individual psychotherapy at the Institute. N.T. 5-6. Dr. Comer also testified that plaintiff presently suffers from a "schizo-affective reaction," and that plaintiff's prognosis is "guarded." N.T. 5, 10-11. Moreover, he stated that plaintiff's condition has deteriorated "in the past month or so,"
and that plaintiff refuses to eat or drink anything. N.T. 6.
It appears that plaintiff's family cannot afford to pay for continued inpatient care at the Institute, and that, if no further medical assistance benefits are available, plaintiff's family will have no alternative but to arrange for plaintiff to become an inpatient at Philadelphia State Hospital, which is the designated state-run facility for persons who reside in Philadelphia, as plaintiff does, and require long-term care. See generally Pa. Stat. Ann. tit. 50, §§ 7101-7503 (Purdon Supp. 1978) (Mental Health Procedures Act). Accordingly, counsel on both sides questioned Dr. Comer closely about the likely effects of such a transfer on plaintiff's condition. In this regard, Dr. Comer testified that "there is a very definite possibility" that plaintiff might again attempt to commit suicide, N.T. 9, and that, in any event, a transfer would significantly retard plaintiff's progress by disrupting his present patient-therapist relationship and requiring him to establish a rapport with a new psychiatrist or psychotherapist. N.T. 9-10, 13-14. Moreover, Dr. Comer testified that most persons with schizophrenic disorders who eventually respond to treatment do so within two or three months, and that the prognosis for a schizophrenic individual who does not respond within that time "goes rapidly downhill until after a year the prognosis is very gloomy." N.T. 14. Thus, the setback and loss of time caused by a transfer might worsen plaintiff's overall chances for improvement. N.T. 28. Dr. Comer conceded, however, that he knows of no method that can accurately predict the probability that such a transfer would impinge upon plaintiff's overall prognosis. Id.
The "likelihood of success" requirement, however, presents an insurmountable obstacle to plaintiff's case. Granting that the requirement is somewhat amorphous,
and looking for nothing more than "a reasonable probability of eventual success in the litigation," I nevertheless conclude that plaintiff is not entitled to preliminary injunctive relief. Delaware River Port Auth. v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 919-20 (3d Cir. 1974). This conclusion obtains both with respect to plaintiff's statutory argument and with respect to his constitutional argument.
SECTION 504 OF THE REHABILITATION ACT
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp. V. 1975), provides:
"No otherwise qualified handicapped individual in the United States, as defined in [ 29 U.S.C. § 706(6)], shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
It is now well-settled that a handicapped individual has an implied private right of action under this provision. See, e.g., Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir. 1977) (per curiam); United Handicapped Fed'n v. Andre, 558 F.2d 413, 415 (8th Cir. 1977); Lloyd v. Regional Transp. Auth., 548 F.2d 1277, 1284-87 (7th Cir. 1977); Davis v. Bucher, 451 F. Supp. 791, 797-798 (E.D. Pa. 1978); Halderman v. Pennhurst State School & Hosp., 446 F. Supp. 1295, 1323-24 (E.D. Pa. 1977).
Defendants do not dispute that plaintiff is a "handicapped individual" within the meaning of section 504. Section 7(6) of the Act defines a "handicapped individual," for purposes of section 504, as "any person who (A) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (B) has a record of such an impairment, or (C) is regarded as having such an impairment." 29 U.S.C. § 706(6) (Supp. V 1975). Moreover, the interpretative regulations issued by the Secretary of Health, Education, and Welfare define "physical or mental impairment" to include, inter alia, "any mental or psychological disorder." 45 C.F.R. § 84.3(j)(2)(i)(B) (1977). Thus, plaintiff unquestionably is a "handicapped individual" within the meaning of section 504.
Furthermore, the parties have stipulated that the Commonwealth of Pennsylvania and, more specifically, the Pennsylvania Department of Public Welfare, receive federal financial assistance "for a variety of programs and purposes including but not limited to mental health programs." Stipulation para. 11. By reason of this federal assistance, of course, the Pennsylvania medical assistance program is subject to the antidiscrimination mandate of section 504.
The central question, then, is this: Does Pennsylvania's sixty-day limitation on benefits for inpatient care in a psychiatric hospital discriminate against plaintiff "solely by reason of his handicap?" Plaintiff strenuously urges that it does, and in support of this contention he relies primarily on the interpretative regulations adopted by the Secretary of Health, Education, and Welfare. Subpart F of these regulations elucidate the constraints imposed by section 504 upon a provider of health services. In pertinent part, the regulations provide:
"(a) General. In providing health, welfare, or other social services or benefits, a recipient [of federal financial assistance] may not, on the basis of handicap:
(1) Deny a qualified handicapped person these benefits or services;