Appeals from the Orders of the Department of Public Welfare in cases of Appeal of Sewickley Valley Hospital in re: Elaine Sowers, dated August 24, 1978; Appeal of Community Hospital, dated September 21, 1978; and Appeal of Union City Memorial Hospital, dated September 21, 1978.
James H. Stewart, Jr., with him Nauman, Smith, Shissler & Hall; Herman S. Harvey, Jr., Thomas J. Miller and Blaxter, O'Neill, Houston & Nash, for petitioners.
John A. Kane, with him Betty F. Perry, Assistant Attorney General, for respondents.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer and Rogers. Judges Blatt, DiSalle, Craig and MacPhail did not participate. Opinion by Judge Wilkinson, Jr. Dissenting Opinion by Judge Rogers.
[ 48 Pa. Commw. Page 197]
These petitions for review which have been consolidated for purposes of review present the appeals of Sewickley Valley Hospital, Community Hospital, and Union City Memorial Hospital from final administrative action of the Department of Public Welfare (Department) denying their claims for reimbursement in five cases of voluntary nontherapeutic sterilizations performed on otherwise eligible medical assistance patients. We reverse and remand.
Under the Medical Assistance Program, the Department makes payments to participating hospitals for services provided to eligible patients pursuant to Section 443.1 of the Public Welfare Code, Act of June 13, 1967, P.L. 31, as amended, added by the Act of July 31, 1968, P.L. 904, 62 P.S. § 443.1 which provides in pertinent part: "The following medical assistance payments shall be made in behalf of eligible persons whose institutional care is prescribed by physicians: (1) The reasonable cost of inpatient hospital care, as specified by regulations of the department adopted under Title XIX of the Federal Social Security Act [42 U.S.C. § 1396 et seq. ]. . . ."
The United States Congress has authorized the funding of a full range of family planning services, which of particular interest to us here is the funding made available through the Medicaid program in SubchapterXIX of the Social Security Act, 42 U.S.C. § 1396 et seq. The Department of Health, Education and Welfare has promulgated regulations governing the funding of sterilizations as a family planning alternative.*fn1
[ 48 Pa. Commw. Page 198]
The Department issued Memorandum No. 74, effective January 1, 1975, explaining the Federal restrictions on reimbursement for nontherapeutic sterilizations. Included with the memorandum was the Department's Form MA-71, "Consent Document For Sterilization Procedure", which was to be submitted with each claim for reimbursement.
The MA-71 is composed of two distinct parts. Part 1 consists of a numerical list of the elements of informed consent that must be conveyed to the patient. Following the list, which tracks the elements of informed consent set out in the Federal regulations albeit in somewhat briefer form, the MA-71 provides for the patient's signed affirmation that: "Based upon the explanation provided to me by [name of physician or
[ 48 Pa. Commw. Page 199]
designee] according to the above, I hereby request and consent to a sterilization procedure." There is similarly an opportunity provided for an auditor-witness selected by the patient to affirm that, "I was present when the above was orally explained to the ...