No. 21 M.D. Appeal Dkt. 1982, Appeal from the Order of the Commonwealth Court dated January 19, and February 24, 1981 at Nos. 328 and 657, reversing the Orders of the Department of Public Welfare
Kathleen F. McGrath, Amy Zapp, Margaret Hunting, Deputy Attys. Gen., Bruce Baron, Asst. General Counsel, Dept. Public Welfare, Philadelphia, for appellant.
Thomas W. Scott, Harrisburg, for appellees.
Roberts, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Flaherty, J., joins and files a separate concurring opinion in which Hutchinson, J., joins. Larsen, J., files a dissenting opinion. Nix, J., did not participate in the consideration or decision of this matter.
This is an appeal from an order of the Commonwealth Court which reversed orders entered by the Department of Public Welfare (hereinafter "D.P.W."). The lower court opinion appears at 65 Pa. Commw 520, 442 A.2d 1236 (1982). We now reverse.*fn1
Appellees, Shirley Keller and Helen Snyder, were eligible recipients of benefits under the Pennsylvania Medical Assistance Program (hereinafter "M.A. Program") which is administered by the DPW under 62 P.S. § 441.1-453.*fn2 Pursuant to its statutory authority, the DPW enacted a regulation dated September, 1980, which provided that costs arising from x-rays ordered and taken by chiropractors would no longer be covered under the M.A. Program. 55 Pa.Code § 1145.54. Appellees, whose treatment included x-rays prescribed and furnished by chiropractors, were duly informed of this policy change pursuant to the requirements of the Public Welfare Code. 62 P.S. § 432.17.*fn3 Nevertheless, they continued to receive x-ray treatments furnished by chiropractors.
Because they were adversely affected by the DPW's regulation, appellees challenged it before the hearing and appeals unit of the DPW and Helen O'Bannon, the secretary of the DPW. Their claims were rejected in both forums. They appealed to the Commonwealth Court which, after consolidating the two cases with the consent of all parties, reversed the findings of the administrative bodies. The court reasoned
that under 62 P.S. § 443.3(2)(i) appellees were entitled to benefits.*fn4
Section 443.3(2)(i) provides as follows:
Payments on behalf of eligible persons shall be made for other services, as follows:
(2) Rates established by the department for (i) other laboratory and x-ray services prescribed by a physician, chiropractor or podiatrist and furnished by a facility other than a hospital which is qualified to participate under Title XIX of the Federal Social Security Act*fn5
The Commonwealth Court concluded that under this section, appellee's x-ray bills were covered since they had been "ordered by" a chiropractor. This analysis is flawed because it fails to recognize that there are two requirements under § 443.3(2)(i). X-ray services will be covered if they are (1) "prescribed by a . . . chiropractor" and (2) if they are "furnished by a facility . . . which is qualified to participate under Title XIX of the Federal Social Security Act."
In the instant matter, there is no question that appellees met the first of these requirements since the x-rays were ordered by chiropractors. However, they failed to satisfy the second provision because under title ...