Keller v. Commonwealth, Department of Public Welfare

*60OPINION

McDERMOTT, Justice.

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.Cmwlth 520, 442 A.2d 1236 (1982). We now reverse.1

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. § 441.1-453.2 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. § 432.17.3 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 rea*61soned that under 62 P.S. § 443.3(2)(i) appellees were entitled to benefits.4

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 Act5

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 XIX chiropractors are not authorized to furnish x-rays.

Although chiropractors may be qualified to participate in the M.A. Program under Title XIX, the taking of x-rays is not included among those services they are authorized to provide for which benefits are available. Section 1396d(g) of Title XIX defines the parameters of services subject to reimbursement which a chiropractor may perform. It provides as follows:

*62(g) Chiropractors’ services. If the State plan includes provision of chiropractors’ services, such services include only—
(1) services provided,by a chiropractor (A) who is licensed as such by the State and (B) who meets uniform minimum standards promulgated by the Secretary under section 1861(r)(5) [42 USCS § 1395x(r)(5) ]; and
(2) services which consist of treatment by means of manual manipulation of the spine which the chiropractor is legally authorized to perform by the State.

There are no authorizations allowing chiropractors to take x-rays or provide other services. Thus, under Title XIX, a chiropractor is not qualified to furnish x-rays.

The Commonwealth Court erred in ignoring this limitation because under § 443.3(2)(i), the DPW must look to Title XIX for guidance as to what facilities are qualified to furnish x-rays. In essence, § 443.3(2)(1) incorporates Title XIX into the M.A. Program with respect to the issue of payment for x-rays ordered and furnished by chiropractors. Therefore, because, as pointed out above, § 1396d(g) of Title XIX does not authorize chiropractors to take x-rays, the administrative tribunals below correctly applied the DPW’s regulation of September 1, 1980, denying appellee’s request for benefits.

The DPW’s regulation recognizes the close interrelation between Title XIX and the M.A. Program, a fact which has also been observed by this Court and the Social Security Act. See Delaware Valley Convalescent Center Inc. v. Beal, 488 Pa. 292, 412 A.2d 514 (1980). See generally, 42 U.S.C.A. § 1396a, 42 U.S.C.A. § 1396a(17). Moreover, the Public Welfare Code empowers the DPW to regulate the M.A. Program so that its benefits are available in accordance with the terms of Title XIX.

Section 451 of the Public Welfare Code provides in pertinent part as follows:

Notwithstanding any other provision of law, the department, with the approval of the Governor, may by regulation grant assistance to any persons, modify or discontinue *63any type of assistance and establish new types of assistance in order to insure receipt of Federal contributions for such assistance.

62 P.S. § 451. (Emphasis supplied.)6

Thus, the fact that the regulation of September 1, 1980 departed from previous policy, contrary to appellees’ assertions, provides no basis for the contention that the change was invalid. The challenged regulation, rather than constituting a misinterpretation of the law, as appellees contend, represents a reasonable attempt by the DPW to calibrate the operation of the M.A. Program with the provisions of Title XIX in compliance with the terms of § 443.3(2)(i).

We therefore hold today that under current provisions of the Public Welfare Code and Title XIX of the Social Security Act, benefits to cover costs for x-rays ordered by chiropractors are not available through the Pennsylvania Medical Assistance Program unless they are taken by a facility authorized under the act.

Accordingly, the order of the Commonwealth Court is reversed.

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.

. Jurisdiction is vested in this Court pursuant to the Act of July 9, 1976 P.L. 586, No. 142 § 2, 42 Pa.C.S.A. § 724(a).

. Public Welfare Code, Act of June 13, 1967, P.L. 31, article IV § 441.1, as amended by act of July 31, 1968, P.L. 904, No. 273 § 3; 62 P.S. 441.1-453, repealed in part by act of June 20, 1978, P.L. 477, No. 70 § 13(b), creating the Department of Aging [71 P.S. § 581-1, et seq.].

. Act of July 9, 1976, P.L. 993, No. 202 § 5, 62 P.S. § 432.17, repealed in part by Act of June 20, 1978, P.L. 477, No. 7, § 13(b), creating the Department of Aging. [71 P.S. § 581-1, et seq.]

. Act of June 13, 1967, P.L. 31 art. IV § 443.3, as added by Act of July 31, 1968, P.L. 904, No. 273 § 5 as amended by Act of November 28, 1973, P.L. 364, No. 128 § 1, repealed in part by Act of June 20, 1978, P.L. 477, No. 7 § 13(b), creating the Department of Aging, [71 P.S. § 581-1 et sec?.]

. Act of July 30, 1965, P.L. 89-97, § 121(a), 42 U.S.C.A. § 1396-1396 n (Title XIX of the Social Security Act).

. Act of July 9, 1976, P.L. 993, No. 202 § 8, repealed in part by Act of June 20, 1978, P.L. 477, No. 70 § 13(b), creating the Department of Aging. [71 P.S. § 581-1 et seq.]