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November 22, 1974

Sandra KANTROWITZ, etc., and American Public Health Association, Inc., Plaintiffs,
Caspar WEINBERGER, Defendant

The opinion of the court was delivered by: GESELL

GESELL, District Judge:

This is an individual and class action in the nature of mandamus and for declaratory judgment seeking to restrain the Secretary of Health, Education and Welfare from enforcing the provisions of the Social Security Act which, as will be developed later, prohibit federal payment for care or services to persons between the ages of 21 and 65 who are patients in institutions for mental disease.* It is claimed that by reason of this statutory hiatus plaintiff Kantrowitz and others are denied due process and equal protection under the Fifth Amendment to the Constitution.

 Kantrowitz, age 34, is a patient in a non-profit institution for mental diseases licensed by the State of Pennsylvania. She requested Medicaid payment to cover cost of her institutional care but has been administratively denied such benefits on the ground that while she is mentally ill, and has been for some time, she is not entitled to Medicaid assistance by reason of her age. As a result of this ruling, Kantrowitz may be required to leave the institution against her will, in spite of her strong need for continued institutional care. Family funds to provide such care are apparently not available.

 Section 1396d(a)(17)(B) of 42 U.S.C., enacted in 1965 as § 1905(a)(15)(B) of Pub.L. 89-97, 79 Stat. 352, defined "medical assistance" so as to exclude Medicaid payments on behalf of individuals under age 65 who were receiving in-patient care in institutions solely for the treatment of mental disease or tuberculosis. This exclusion based on institutional status and type of disease was challenged on equal protection grounds before the three-judge court in Legion v. Richardson, 354 F. Supp. 456 (S.D.N.Y.), aff'd sub nom. Legion v. Weinberger, 414 U.S. 1058, 94 S. Ct. 564, 38 L. Ed. 2d 465 (1973), rehearing denied, 415 U.S. 939, 94 S. Ct. 1459, 39 L. Ed. 2d 498 (1974). The court upheld the exclusion as rational on the grounds that Congress had determined that patients in these institutions had historically been the responsibility of the states and should remain so, see Legion, supra, 354 F. Supp. at 459; see also, U.S.Code Cong. & Admin.News, p. 2086 (1965). Its decision is, of course, binding on us.

 What was not before the court in Legion, supra, and the primary issue tendered in this proceeding is the exclusion of potential recipients on the basis of their age. Section 1396d(a) (16) of 42 U.S.C., added in 1972 by § 299B of Pub.L. 92-603, 86 Stat. 1460, authorized Medicaid payments on behalf of persons under 21 who were financially qualified and were receiving in-patient care in psychiatric hospitals, provided such treatment was certified by a team of physicians as reasonably likely to "improve the condition . . . to the extent that eventually such services will no longer be necessary." 42 U.S.C. § 1396d(h)(1)(B)(ii). Plaintiff argues the effect of this amendment is to make all needy persons eligible for Medicaid assistance for in-patient care in mental institutions unless they are between the ages of 21 and 65, and that such a classification on the basis of age is irrational and denies equal protection. Cf. Cleveland Bd. of Education v. LaFleur, 414 U.S. 632, 657, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974) (Rehnquist, J. dissenting).

 The legislative history of the challenged provisions throws light on the congressional purpose and is essential background for the ultimate decision in this case. Pub.L. 92-603 was a major revision of the Social Security Act which received searching attention because, among other things, it initially included the Nixon Administration's Family Assistance Plan. The bill (H.R. 1) as approved in the House did not contain the provisions adding funding for "Medicaid Coverage for Mentally Ill Children." These provisions were added to the bill by the Senate Finance Committee through Amendment No. 549 which was accepted by the full Senate without debate. See 118 Cong.Record 32472, 32477 (Sept. 27, 1972). The Senate Finance Committee Report advanced the following significant explanation for the amendment:

Under present medicaid law, reimbursement for inpatient care of individuals in institutions for mental disease is limited to those otherwise eligible individuals who are 65 years of age or older.
Matching for outpatient care for mentally ill children, as well as needy adults, is currently available under Title XIX. The committee supports use of these funds where appropriate and believes that outpatient treatment in the patient's own community should be used wherever possible. However, in some cases, inpatient care in an institution for mental diseases is necessary.
The committee amendment would therefore authorize Federal matching under medicaid for eligible children, age 21 or under, receiving active care and treatment for mental diseases in an accredited medical institution . . .
The committee believes that the nation cannot make a more compassionate or better investment in medicaid than this effort to restore mentally ill children to a point where they may very well be capable of rejoining and contributing to society as active and constructive citizens.
The committee also believes that the potential social and economic benefits of extending medicaid inpatient mental hospital coverage to mentally ill persons between the ages of 21 and 65 deserves to be evaluated and has therefore authorized demonstration projects for this purpose. S.Rep.No. 1230, 92d Cong., 2d Sess. 280-1 (1972).

 The legislative history of Pub.L. 92-603 provides only limited explanation of why Congress singled out persons under 21 to receive benefits but continued to exclude those age 22-65 from payments for in-patient care in mental hospitals. In Conference, the House accepted the Senate amendment to provide payments for mentally ill persons under 21, and the requirement, which became part of 42 U.S.C. § 1396d(h)(1)(B), that an independent medical review team must first certify that benefits be used for care that can be expected to lead to improvement and eventual discharge was added. The Conference, without ...

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