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MARJORY MARSH v. COMMONWEALTH PENNSYLVANIA (12/28/79)

decided: December 28, 1979.

MARJORY MARSH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in case of Ms. Marjory Marsh, No. 779 281 J.

COUNSEL

David L. Hill, for petitioner.

Betty F. Perry, for respondent.

Judges Wilkinson, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 48 Pa. Commw. Page 217]

Marjory Marsh (Petitioner] appeals to this Court from a decision of the Department of Public Welfare [DPW) which dismissed her appeal from an order of the Philadelphia County Board of Assistance (Board) denying her payment for a dilantin blood level test. The sole issue raised on appeal is whether DPW abused its discretion in excluding coverage of the dilantin level test under the Medical Assistance program. We hold that it did.

The facts of this case are not in dispute. Petitioner receives Social Security and Supplemental Security Income payments. On July 21, 1977, brain surgery was performed on her to relieve an intracerebral hematoma. There is uncontradicted evidence on the record in the form of a letter from Petitioner's doctor that "due to [the] previous brain surgery, [Petitioner] must take Dilantin to control seizures. In order to be certain that her dosage is correct she must have serum Dilantin levels done every so often." (Emphasis added.) On July 26, 1978, Petitioner had such a test performed as an outpatient at Episcopal Hospital. She was billed $25.00 for the test. Petitioner submitted the bill to the Board for payment, but payment was denied on the basis that Section 9416, Appendix I of the Medical Assistance Manual (MA Manual) does not provide for such coverage. Her appeal to DPW from the Board's decision was denied and this matter is now before us for consideration.

Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., commonly referred to as Medicaid, is a federally funded program designed to provide medical assistance to needy persons in participating states.*fn1

[ 48 Pa. Commw. Page 218]

The Medicaid program in Pennsylvania is administered by DPW pursuant to the Public Welfare Code, Act of June 13, 1967, P.L. 31, as amended, added by Section 5 of the Act of July 31, 1968, P.L. 904, as amended, 62 P.S. § 441.1 et seq. Participating states must administer their programs in conformity with certain federal statutory and regulatory guidelines. For example, participating states are required to provide qualified individuals with five types of medical service. See 42 U.S.C. §§ 1396a(13)(B) and 1396d(a). One of the required services, and the one at issue here, is "other laboratory and X-ray services." 42 U.S.C. § 1396d(a)VII(3).*fn2 States are not required to fund every medical procedure falling within the five categories. They have broad discretion in setting standards for determining the extent of medical assistance to be provided. The standards, however, must be reasonable and must be consistent with the objectives of Title XIX. Beal v. Doe, 432 U.S. 438, 441, 444 (1977); 42 U.S.C. § 1396a(a)(17).

Section 9416.41 of the MA Manual provides that medical assistance payments for laboratory services ordered by private independent physicians are limited to the procedures listed in Appendix I to Section 9416. A dilantin level test is not listed in the Appendix and, therefore, is not compensable by DPW. Interestingly, Section 9413 of the MA Manual makes dilantin, itself, compensable. The question we must decide, then, is whether DPW's refusal to include a dilantin level test as a compensable laboratory procedure is reasonable and consistent with the objectives of Title XIX or whether DPW abused its discretion in promulgating and enforcing such a restriction.

[ 48 Pa. Commw. Page 219]

We find the opinion in Roe v. Casey, 464 F. Supp. 487 (E.D. Pa. 1978) to be instructive on this issue and we adopt the reasoning of the District Court here. In interpreting the statutory requirements of 42 U.S.C. §§ 1396*fn3 and 1396a(a)(17)*fn4 and the regulatory ...


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