Pereira ex rel. Pereira v. Kozlowski

HAMILTON, Circuit Judge,

concurring specially:

While I agree with the court’s disposition of this case, I write separately to emphasize the court’s holding is a narrow one. The court holds that “the Commonwealth is required by the terms of section 1396d to provide funds for medically necessary transplants to children under the ages of twenty-one who are otherwise qualified under the State’s Medicaid plan[,]” supra at 727. As the court explains, “there is nothing inconsistent in Congress on the one hand requiring that a particular procedure be performed but, on the other, conditioning its payment for that service on the existence of uniform standards.” Supra at 727. The court’s construction of the Medicaid statute is honest and faithful to its plain language. However, its interpretation that § 1396b does not grant states the discretion to fund organ trans*728plants will invariably open the door to individuals over the ages of twenty-one to claim that states, like the Commonwealth of Virginia, are required to pay for their organ transplants under the Medicaid statute because the procedure is medically necessary. See Ellis by Ellis v. Patterson, 859 F.2d 52, 54 (8th Cir.1988) (Medicaid must fund, among other things, in-patient and out-patient services, x-ray and laboratory services, and physicians’ services whenever they are medically necessary.). The attendant drain that such expensive and elaborate procedures would have on the finite Medicaid resources would be astounding and arguably inconsistent with the intent and purpose of the Medicaid statute. Ellis, 859 F.2d at 55 (“[Fjederal appropriations are ‘[f]or the purpose of enabling each State, as far as practicable under the conditions in such State,’ to furnish medical assistance to the needy.”) (citing 42 U.S.C. § 1396). Whether a state would be required to pay for such services presents a profoundly troubling question. To the extent that the court’s opinion does not hold or otherwise suggest that states, such as the Commonwealth of Virginia, are required to provide funds for organ transplants to individuals over the ages of twenty-one because the procedure is medically necessary, I join the court’s opinion.