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September 16, 1992

ROBERT P. CASEY, Governor, et al. Defendants

The opinion of the court was delivered by: WILLIAM W. CALDWELL

 We are now considering motions for summary judgment filed by both parties. Summary judgment is appropriate in federal court if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Issues of fact are "'genuine' only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). Here, the parties have stipulated to all relevant facts and so we are left only to decide how the law applies to those facts.

 I. Introduction

 This case presents a complex question and a brief description of the relevant facts will be helpful in presenting the issue.

 Under the Medical Assistance Program (Medicaid), 42 U.S.C. § 1396 et seq., the federal government works with state governments to assist low-income individuals in attaining health care. Both the federal and state governments provide funding. States provide plans for approval by the federal Department of Health and Human Services ("HHS"), and when those plans are approved, states are eligible for federal reimbursement, or "federal financial participation." The part of Medicaid involved in this matter is the prescription drug program. The Health Care Financing Administration of HHS ("HCFA") administers this program and can decide to "disallow" certain reimbursement if the state plan is deemed to be not in compliance with HHS Medicaid regulations. In 1991, certain Pennsylvania reimbursement requests were disallowed by HCFA and Pennsylvania appealed to the HHS Departmental Appeals Board ("appeals board"). The Commonwealth, concerned that it would lose further reimbursement, chose not to wait for the appeals board decision and instead adopted the emergency regulations that are the subject of this lawsuit. See, amendments to 55 Pa. Code Ch. 1121 effective January 11, 1991. Medicaid drug reimbursement to pharmacists takes two forms, repayment for the medications themselves and a dispensing fee paid to pharmacists for their services. The Pennsylvania emergency regulations modified the price list from which Pennsylvania reimbursed pharmacists for the medications themselves. In most cases, the regulations decreased the reimbursements. A few months later, the Pennsylvania legislature raised the dispensing fee. The HHS appeals hoard rendered its decision on March 18, 1992, determining, inter alia, that Pennsylvania's plan was acceptable. Plaintiffs now complain that the Commonwealth violated federal law by lowering the drug reimbursement component when it did so.

 As a threshold matter, we believe the resolution of this matter revolves around the language of the federal statute that forms the basis of plaintiffs' complaint, 42 U.S.C. § 1396r-8 (f)(1) as enacted by the Omnibus Budget Reconciliation Act of 1990 ("OBRA 90"). It provides as follows:

 (1) No reductions in reimbursement limits

 (A) During the period of time beginning on January 1, 1991, and ending on December 31, 1994, the Secretary may not modify by regulation the formula used to determine reimbursement limits described in the regulations under 42 CFR 447.331 through 42 CFR 447.334 . . .

 (B) During the period of time described in subparagraph (A), any State that was in compliance with the regulations described in subparagraph (A) may not reduce the limits for covered outpatient drugs described in subparagraph (A) or dispensing fees for such drugs.

 Id. (emphasis added). In their briefs, the parties have correctly focused on the question of what "compliance" means in the context of the statute and whether Pennsylvania was, in fact, in compliance with the applicable regulations. Statutory analysis must begin with the "plain meaning" of the statute. In Re Continental Airlines, Inc., 932 F.2d 282, 287 (3d Cir. 1991). Defendants would have us read in the words "Any State believing itself to be in compliance . . ." We decline to do so. If the Commonwealth was actually in compliance when it enacted the emergency state regulations that are the subject of this litigation, those regulations would be in violation of OBRA 90.

 II. Judicial Estoppel

 Plaintiffs ask that we hold that defendants are estopped from arguing that Pennsylvania was not in compliance at the time the emergency regulations were issued. They cite the Commonwealth's argument before the appeals board in which the Commonwealth sought to overturn a disallowance issued by the HCFA.

 Plaintiffs rely upon a doctrine known as "judicial estoppel," which has been asserted to prevent litigants from taking opposite positions in different adjudications.

 To permit a party to assume a position inconsistent with a position it had successfully relied upon in a past proceeding "would most flagrantly exemplify . . . playing 'fast and loose with the courts,'" which has been ...

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