dissenting.
The majority holds that the United States Secretary of Health and Human Services’s (“Secretary”)1 duty to ensure the quality of health care given to Medicaid recipients in nursing homes authorized the Secretary’s rule mandating that “Medicaid patients who are certified by their physicians as needing the skilled level of care be treated only in facilities qualified as ‘skilled nursing facilities’ and those patients certified by their physicians as needing only the intermediate level of care are treated in facilities qualified as ‘intermediate care facilities.’ ” I cannot support the majority’s unfounded leap from the premise that the Secretary is obligated to assure quality of care to the conclusion that patients must automatically be transferred based upon a recertification of level of care needed, performed during the utilization review process, without regard to the patient’s attending physician’s or the Utilization Review Committee’s medical judgment of whether the transfer would be detrimental to the patient’s health. The majority stifles any inquiry into the often life-determining question of transfer trauma. The majority, without the benefit of a medical education, much less the obligations of the Hippocratic Oath, strangles the judgment and medical decisions of the treating physicians concerning quality and proper health care. They do this under the guise of answering a question of statutory interpretation. The majority opinion fails to acknowledge the system for quality of care assurance enacted in the Medicaid statute and, consequently, fail to comprehend that the Secretary’s rule mandating automatic transfer of nursing home patients (in effect, a determination by the Secretary that continued stay in the facility is no longer medically indicated based upon the recertification of the level of care needed) undermines the statutory scheme in that it circumvents the continued stay review process mandated in the Medicaid regulations. Furthermore, the majority fails to realize that the Secretary’s mandatory transfer rule is an improper intrusion into the attending physician’s medi-
*401cal judgment. The net result of the majority’s endorsement of the Secretary’s rigid automatic transfer rule is the often cruel and heartless transfer of nursing home patients in direct contradiction of the attending physician’s medical judgment that such a transfer would endanger the patient’s health and may very well be fatal. I dissent.
I.
A. Quality Assurance Under Medicaid
Because the majority is apparently unaware of the quality of care scheme of Medicaid, or refuses to accept it, it is necessary that we review the history and structure of the Medicaid quality of care system. Utilization review became mandatory in 1965 with the passage of the Medicare Act (42 U.S.C. § 1395 et seq.), making hospital-based Utilization Review Committees an integral part of the Medicare program and a requirement for hospitals to participate in the Medicare program. “The function of a hospital Utilization Review Committee is ‘to minimize the cost of patient care by monitoring the use of the hospital and its resources, primarily so that excess usage (and cost) is prevented____’” Blum, Gertman & Rabinow, PSROs and the Law, Ch. 1 at 5 (1977) (hereinafter Blum). In “concurrent review,” the form of review at issue in this case,2 the need for inpatient care is assessed while the patient is hospitalized. A “review coordinator,” a non-physician operating under the supervision of a physician, assigns a specific time period to the patient’s hospital stay (“length-of-stay-determination”) based upon the patient’s age, diagnosis, and regional norms. Id. at 6. The review coordinator is also responsible for assessing the patient’s progress. Id. at 7. Before the initial confinement period expires (usually two days before the expiration date), the review coordinator, a layman, examines the patient’s record, using criteria established by the Utilization Review Committee for the. diagnosis in question, to determine whether additional hospitalization is needed. Id. If the review coordinator declines to approve the extended stay, the case is referred to the coordinator’s supervising physician. Id. If the supervising physician also determines that an extended stay is unwarranted, he may consult the attending physician.' Id. If the attending physician fails to persuade the supervising physician of the necessity of the extended stay, the physician or the patient may appeal to the Utilization Review Committee (“composed of two or more physicians, with or without participation of other professional personnel,” id. at 3). Id. at 6-7. If the Utilization Review Committee approves the extended stay, a new length-of-stay is assigned and the re-certification process is repeated. Id. at 7. repeated. Id. at-.
The Medicare statute required hospitals to perform extended stay reviews to reduce costs. Id. at 4.
“Extended stay review ... was designed to prevent lengthy hospital stays that represented the greatest cost strain on the system. Thus the federal government attempted to build into a costly system a method to economize in the area of greatest abuse, which was felt to be extended stay.”
Id. Central to this utilization review program was Congress’ decision that the medical professionals on the Utilization Review Committee were to make the final judgment on the medical necessity of care provided to Medicare beneficiaries. Id. Indeed, the Medicare statute expressly provides that the federal government shall not interfere with the practice of medicine:
“Nothing in this subchapter shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services *402are provided, or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services; or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.”
42 U.S.C. § 1395.
In 1967, Congress amended the Social Security Act and required state Medicaid agencies to establish utilization review procedures for all care and services provided under Medicaid Medical Assistance Plans. (PL 90-248). The Department of Health, Education and Welfare authorized fiscal intermediaries3 to institute retrospective review of the medical necessity of the care provided in specific cases and to deny payment when, in the opinion of the fiscal intermediary, the care was not medically necessary. Blum, ch. 1 at 11. Because the Secretary authorized retrospective review by the fiscal intermediary, the final and ultimate authority to determine medical necessity rested with the fiscal intermediary and the Utilization Review Committee’s determination of medical necessity during concurrent review was but one factor to be considered. Id.
The combination of Utilization Review Committees and fiscal intermediaries proved to be less than successful. S.Rep. No. 1230, 92nd Cong., 2d Sess. 254-69 (1972).. Specifically, Congress determined that fiscal intermediaries’ review of medical necessity was neither accurate nor appropriate.
“Apart from the problems experienced in connection with their determination of ‘reasonable’ charges, the performance of the carriers responsible for payment for physician’s services under Medicare has also varied widely in terms of evaluating the medical necessity and appropriateness of such services. Moreover, ever since Medicare began, physicians have expressed resentment that their medical determinations are challenged by insurance company personnel. The committee has concluded that the present system of assuring proper utilization of institutional and physician’s services is basically inadequate. The blame must be shared between failings in the statutory requirements and the willingness and capacity of those responsible for implementing what is required by present law.
8(C # * * 3jC 3|C
The committee believes that the review process should be based upon the premise that only physicians are, in general, qualified to judge whether services ordered by other physicians are necessary. The committee is aware of the increasing instances of criticism directed at the use of insurance company personnel and Government employees in reviewing the medically necessity of services.”
Id. at 256 (emphasis added). To correct these problems, Congress adopted a system placing the responsibility for reviewing the utilization of services in the hands of practicing physicians and surgeons. Id. at 257. *403118 Cong.Rep. S1, 611 (daily ed. Sept. 27, 1972) (remarks of Senator Bennett) (emphasis added). Under the new system, Professional Standards Review Organizations (“PSROs”) were given the responsibility of reviewing the necessity and quality of medical care provided to Medicaid beneficiaries. A PSRO is an organization representing substantial numbers of practicing physicians in local areas that assumes responsibility for the review of service (but not payments) provided through the Medicare and Medicaid programs. Senate Finance Comm.Rep. at 257.
*402“An effective comprehensive professional review mechanism can materially ease problems of utilization and quality control. This is the area where a bridge was needed between medicine and Government. It was all too clear to those of us on the Finance Committee that an army of Government and insurance company employees checking on each medical servicé was not the answer. Past experience and common sense indicated clearly that clerical personnel could not and should not make decisions as to the quality and necessity of medical services.
The bridge we needed between Government and medicine was a structure through which practicing physicians could, in an organized and publicly accountable fashion, professionally evaluate the quality and necessity of medical services in an area.”
*403“A PSRO would have the responsibility of determining — for purposes of eligibility for Medicare and Medicaid reimbursement — whether care and services provided were: first, medically necessary, and second, provided in accordance with professional standards. Additionally, the PSRO where medically appropriate, would encourage the attending physician to utilize less costly alternative sites and modes of treatment. The PSRO would not be involved with questions concerning the reasonableness of changes or costs or methods of payment nor would it be concerned with internal questions relating to matters of managerial efficiency in hospitals or nursing homes except to the extent that such questions substantially affect patterns of utilization. The PSRO’s responsibilities are confined to evaluating the appropriateness of medical determinations so that medicare and medicaid payments will be made only for medically necessary services which are provided in accordance with professional standards of care.
The local PSRO would be primarily responsible for review of all medicare and medicaid services rendered or ordered by physicians in its area. The purpose of the provision is to establish a unified review mechanism for all health care services under the aegis of the principal element of the health care equation, the physician.
Id. at 261-62 (emphasis added).
Because PSROs were not in existence at the time of the adoption of the 1972 Amendments, Congress provided a transi-
tion system to allow inhouse utilization review until PSROs could be created. HEW PSRO Transmittal No. 22, June 20, 1975 reprinted in Q Medicare and Medicaid Guide (CCH) fl 27, 456. The utilization control imposed by Congress required: (1) physician certification and recertification of level of care needed; (2) plan of care; and, (3) medical review in SNFs, ICFs, and mental hospitals, and provided that the Utilization Review Committees within the institutions were to continue their activities pending assumption of review responsibilities by a Professional Standards Review Organization. (P.L. 92-603, §§ 207, 237, 239 and § 249F.) To enforce the statutory requirements of utilization review and PSROs, Congress imposed a penalty on those states that either failed to include utilization review procedures and/or PSROs in their state plan or failed to properly discharge their responsibility of assuring that proper utilization control procedures were in operation. 42 U.S.C. § 1396(b)(g) (1974).
To supplement the review of medical necessity and quality of care by Utilization Review Committees and PSROs, the Secretary monitored quality of care by imposing conditions of participation on medical institutions, including nursing homes. See e.g. 42 U.S.C. § 1396a(a)(28) (SNF standards); 42 C.F.R. 442 et seq.; id. at 405, Subpart K. Conditions of participation include, inter alia: (1) personnel requirements (licensing, areas of responsibility, ánd staffing levels); (2) service requirements (physician, nursing, dietetic, pharmaceutical, laboratory, radiologic, dental and social services); and (3) physical environment requirements (fire safety, emergency power, facilities for physically handicapped, patient rooms, facilities for special isolation care, dining and patient activity rooms, kitchen and dietetic service areas, and maintenance.) See e.g. 42 C.F.R. § 405, Subpart K (conditions for participation of nursing homes).
B. The Issue Presented by the Wisconsin Variance System
As the majority correctly notes, states in order that they might participate in the *404Medicaid program must adopt a plan of their own that conforms with the federal requirements embodied in the Medicaid Act and its implementing regulations. 42 U.S.C. § 1396a(b). The Wisconsin state plan provides for skilled nursing facilities, Wis.Admin.Code § HSS 132.13 (20), (21) (1982); and intermediate care facilities, id. at (8)(9) and incorporates the Secretary of Health and Human Services’ conditions of participation. Id. at 105.106, 105.10, 105.-11. Both skilled nursing facilities and intermediate care facilities are required to perform utilization review. Id. at 105.-10(18)(SNF), 105.11(5)(ICFs). Utilization Review Committees are required to perform “continued stay” review. Id. at 105.-10(18)(hHn)(SNF), 105.11(5)(h-n)(ICF). Under the ICF and SNF “continued stay review” procedures, the Utilization Review Committees must develop “written criteria to assess the need for continued stay.” Id. at 105.10(18)(h)(i)(SNF), 105.11(5)(i)(l)(ICF). When a patient is admitted to either an SNF or ICF nursing home, the Utilization Review Committee assigns a “specified date by which the need for his continued stay will be reviewed.” (“Continued stay review date”). Id. at 105.10(18)(i)(l)(SNF), 105.11(5)(j)(l)(ICF). If the patient remains confined beyond the “continued stay review date,” the Utilization Review Committee must determine whether the patient’s continued hospitalization in the skilled nursing facility or the intermediate care facility is needed. Id. at 105.10(18)(K)(2)(1)(3)(SNF), 105.11(5)(m)(3)(ICF). If the Utilization Review Committee finds that the patient’s continued hospitalization in the SNF or ICF is medically indicated, the committee sets a new continued stay review date. Id. at 105.10(1)(K)4(SNF), 105.11(5)(M)4(ICF). If the committee determines that continued confinement is not required, the patient and the attending physician are notified and the attending physician may present additional information or clarification of the need for continued institutionalization. Id. at 105.10(18)(K)5-8(M), (N)(SNF), 105.-ll(5)(M)(5-8), (N)(0)(ICF). Thus, Wisconsin’s state plan codifies as state law the conditions of participation imposed by the Federal Medicaid requirements. See 42 C.F.R. Part 456 Subpart E; id. at Subpart F.
The Wisconsin regulations further provide:
“(b) Care Levels 1. No person who requires care greater than that which the facility is licensed to provide shall be admitted to the facility.
2. No resident whose condition changes to require care greater than that which the facility is licensed to provide shall be retained.”
Wis.Admin.Code § HSS 132.51(l)(b). Additionally, the Wisconsin regulations provide that a patient may be involuntarily removed from the facility, “[i]f the resident requires care other than that which the facility is licensed to provide.” Id. at § HSS 132.53(2)(b)2. Finally, the Wisconsin Administrative Code includes a variance procedure, i.e., a “grantQ of an alternative requirement in place of a requirement of this chapter.” Id. at § HSS 132.21(l)(b).
(2) Requirements For Waivers or Variances. A waiver or variance may be granted if the department finds that the waiver or variance will not adversely affect the health, safety, or welfare of any resident and that:
(a) strict enforcement of a requirement would result in unreasonable hardship on the facility or on a resident;
(b) An alternative to a rule, including new concepts, methods, procedures, techniques, equipment, personnel qualifications, or the conducting of pilot projects, is in the interest of better care or management.
Id. To obtain a variance from the requirement that facilities discharge patients requiring “care other than that which the facility is licensed to provide,” the following information must be supplied to the Wisconsin Department of Health and Social Services:
“(1) Statement from the administrator indicating that he/she will assume responsibility for the resident, how care will be enhanced if variance is granted, *405and how the care of other residents will not be diminished;
(2) Statement from the attending physician endorsing the resident in remaining at the facility without detriment to the individual resident’s physical and mental health, and willingness of the physician to assume responsibility for the care of the resident; and
(3) Statement from the guardian or concerned relative (if any) requesting that the resident remain in the facility.”
According to the briefs, Wisconsin implemented the variance procedure in response to physicians’ concerns that an automatic transfer after the patient was recertified as needing a different level of care could be detrimental to their patients’ health. One source of concern was the stress associated with relocation, i.e., “transfer trauma.” The problem of mandatory and involuntary transfers is becoming more acute by the day: several studies dealing with the effect of relocating institutionalized elderly persons with substantial cognitive and/or physical impairments have revealed that the indiscriminate transfer of the patients involves a grave risk of a dramatic increase in more serious illness and even death.4 Studies of transferred elderly nursing home residents have revealed increased mortality rates of as much as 500 percent to 900 percent. Killian, Effect of Geriatric Transfers on Mortality Rates, 15 Social Work 19 (1970).
“Changes in the social environment may have deleterious consequences in terms of psychological well-being and health. Loss of loved ones and loss of familiar objects or surroundings, resulting in helplessness or despair, are related to medical-psychological disorders____ In general older persons seem to gain satisfaction and support from association with familiar objects and places and from association with persons living in the same environment____”
Thus, relocated nursing home patients frequently become depressed and disoriented, and reduce their levels of activity. Bourestom & Tars, Alterations in Life Patterns Following Nursing Home Relocation, 14 Gerontologist 506, 508 (1974). Psychological deterioration and serious physical illness may also result from the involuntary transfer. Miller & Lieberman, The Relationship of Affected State and Adaptive Capacity to Reactions to Stress, 20 J. Gerontology 492, 494 (1965). Indeed, the Secretary himself has recognized the pronounced and often irreversible dangers of transfer trauma:
“There is a genuine hazard in the relocation of infirm aging persons from one facility to another. Dramatic increases in mortality far in excess of what would *406normally be expected have been documented.”
HEW, Advisory Memorandum AoA-TA75-1, Feb. 19, 1975.
An examination of the record reveals that Wisconsin granted the variances because of the physicians’ concerns about the effects of involuntary transfer on their patients. Many of the patients were confused at the time the physicians requested the variances. According to the medical records, these patients were suffering from organic brain syndrome, secondary to severe alcoholism; senile dementia; cerebral arteriosclerosis; and, in several cases, chronic brain syndrome. Thus, as my summary of the medical literature discussing transfer trauma sets forth or recounts, the patients’ confused mental states rendered them less capable of coping with a change in nursing home surroundings and supports the conclusion that the physicians properly were concerned about the effects of an involuntary transfer on their patients’ health. Moreover, the physicians gave specific reasons for finding that the breaking of bonds of trust and familiarity in removing a patient from a facility might very well be traumatic to the patient involved. These reasons included separation from a spouse, residence in the home for many years, a staff that could converse with an elderly resident who spoke only Italian, and a staff that could understand a resident with a severe speech impairment. Indeed, in one case, a variance was granted to allow a patient with a prognosis of three to six months to live to remain in an ICF so that he could spend his remaining time with his wife, who resided in the same nursing home. The fact that the physicians gave specific reasons for finding that removal from the facility would be especially traumatic for the patient involved obviously leads one to conclude that the physicians’ variance applications were made in response to the individual needs of their patients, rather than routinely or automatically requested. Furthermore, a review of the granted variances also reveals that the State of Wisconsin has imposed special requirements on the facilities as a condition of granting the variances. These special requirements include forbidding the admission or retention of patients needing greater care than the facility is licensed to provide; provision for prompt discharge if the patient required acute care; retaining the patient’s present doctor as the attending physician with more frequent visits from the physician; closer monitoring of the patient; and, increased documentation of the patient’s status with frequent reports to the attending physician and the Wisconsin Department of Health. Thus, the State’s imposition of additional requirements on both the attending physician and the institution is further support for the conclusion and contradicts the contention of the Secretary of Health and Human Services that the variances were not approved as a matter of routine. It is clear that the State granted the variances only in order that it might allow the physicians and the institutions to respond to the individual medical needs of their patients.
Having summarized the utilization review procedure mandated by the Medicaid Act and regulations and enacted by Wisconsin, and the variance system adopted by Wisconsin, I turn to the question of whether the Secretary’s broad-brush statement of the issue in his appellate brief obscures the real issue in this case. According to the Secretary’s appellate brief, the issue presented is: “Whether the Secretary’s interpretive rule (requiring every Medicaid patient to be treated only in a facility certified to provide the level of care that the patient’s physician has stated is needed) must be upheld as a reasonable interpretation of the medicaid act.” This unfocused statement of the issue encompasses at least four potential issues: (1) the admission of a Medicaid patient to an inappropriate facility; (2) the failure of the attending physician to indicate whether, in the physician’s medical judgment, a patient certified as in need of a level of care different from that provided by the facility in which he resides should be transferred and the failure of the facility to implement such transfer; (3) the facility’s disregard of the need *407to transfer the patient even though the attending physician recertifies the patient as needing a level of care greater or less than the facility is licensed to provide and indicates that in his medical judgment the patient should be transferred; (4) the refusal of the facility to transfer the patient when the attending physician certifies the patient as needing a level of care greater or less than the facility is licensed to provide but also indicates that in his medical judgment the patient should not be transferred. It is apparent to me that out of the myriad of problems that arise in the administration of the Medicaid system, this case presents one clear, specific issue: Whether Congress, in enacting the Medicaid Act, authorized the Secretary of Health and Human Services to require the automatic, transfer of patients recertified as in need of a level of care different from that provided by the facility in which the patient resides without regard to whether, in the medical judgment of the attending physician, the patient should be discharged and without regard to the Utilization Review Committee’s evaluation or the patient’s continued need for institutionalization.
II. The Secretary of Health and Human Service’s automatic transfer rule is not supported by the Medicaid Act, denies the physician’s right to exercise his medical judgment, and undermines the very system of quality care assurance.
The Secretary of Health and Human Services bases his automatic transfer rule upon a broad, unsupported and expansive reading of the certification requirement of 42 U.S.C. § 1396b(g)(l)(A). This statute provides in relevant part:
“[T]he Federal medical assistance percentage ... shall be decreased by a percentum thereof ... unless the State agency responsible for the administration of the plan makes a showing satisfactory to the Secretary that ... there is in operation in the State an effective program of control over utilization of such services; such a showing must include evidence that—
(A) In each case for which payment is made under the State plan, a physician certifies at the time of admission, or, if later, the time the individual applies for medical assistance under the State plan (and the physician, or a physician assistant or nurse practitioner under the supervision of a physician, recertifies, where such services are furnished over a period of time, in such cases, at least every 60 days ... and accompanied by such supporting material, appropriate to the case involved, as may be provided in the regulations of the Secretary), that such services are or were required to be given on an inpatient basis because the individual needs or needed such services....”
The accompanying regulations specify that the recertification for each Medicaid beneficiary in a skilled nursing facility must state that “SNF services are needed” and for each beneficiary in an intermediate care facility that “ICF services are needed.” 42 C.F.R. § 456.260; id. at § 456.360. The Secretary of Health and Human Service’s reasoning is based on two premises. First, he argues that he has a duty to ensure that Medicaid beneficiaries receive the level of care to which they are entitled under the Medicaid Act. Secondly, he contends that requiring automatic transfer when the patient’s physician (the Secretary fails to acknowledge that the recertification is performed by a layman or a physician on the Utilization Review Committee rather than the attending physician) certifies a Medicaid beneficiary as needing a level of care greater or less than the level of care provided by the facility ensures that patients will receive the care to which they are entitled and is in the patient's best interest.
As an initial matter the Secretary’s ambiguous and misleading arguments about the meaning and purpose of the recertification requirement need clarification. Although the Secretary argues throughout his brief and reply brief that the recertification procedure assesses the level of care needed, portions of his reply brief and a *408footnote in his main brief demonstrate that the Secretary confuses and misconstrues the assessment of the level of care needed with the assessment of whether the patient should be transferred. Specifically, the Secretary confuses recertification of level of care needed with the continued stay determination. The Secretary contends:
“A requirement that a physician must attest to the patient’s need for continued placement at a specific level of care, is [sic] recognizes that the physician’s determination plays a key role____ [T]he Secretary has chosen to make that determination operative and binding. Reply Brief at 10.
******
The Secretary has chosen, for sound and permissible reasons, to follow the level of care certified by the physician certification. The Secretary is not attempting to orchestrate delivery of medical services ... when he follows the physician’s determination for sound, prophylactic reasons. Nor, it should be obvious, does the Secretary’s decision to rely on the physician’s certification mean that he has made labels attached to the facility the decisive factor or that he had made the physical facilities the end product ... by guiding himself by the physician’s judgment. Reply Brief at 10.
******
Had the physicians here truly been willing to shoulder responsibility for a decision not to transfer the patient to an SNF, they should have certified them as in need of the intermediate care services. HHS would accept this patient certification, although the facility would jeopardize its certification if it in fact failed to meet the patient’s actual needs. But the physician instead certified the patients as in need of skilled services.” Government’s Main Brief at 39 n. 19.
This summary of the Secretary’s argument reveals that the Secretary misunderstands (or purposefully misinterprets to achieve his desired result) the meaning and purpose of the certification requirement. First, according to the Secretary, a physician must certify that either skilled nursing facility or intermediate care facility services are needed and, if the facility is not licensed to provide the certified level of care indicated, the patient must be transferred. The Secretary’s broad brush treatment of the decision whether to transfer a patient ignores the fact that the transfer decision involves three questions, rather than one: (1) Does this patient need a level of care greater or less than the level of care the facility is licensed to provide? (2) Is it in the best medical interest of this patient to transfer him to another facility? (3) Could the facility accommodate the needs of the patient should the attending physician and the Utilization Review Committee determine that the risk attendant to transfer outweighs the potential benefits to be obtained from the new facility? Cf, Davidson, Utilization Control, Medicaid Decisions: A Systematic Analysis of the Cost Problem, 109 (1980) (“Misutilization falls into three categories: services that are medically unnecessary; services that are inappropriate — that is, although they are justifiable on clinical grounds, they are provided at a level more intense and therefore more expensive than necessary; and services that are considered socially unjustifiable because the cost of the service outweighs the benefit to be gained from it.”) On the other hand, the Secretary discerns but one question — whether the patient needs a level of care greater or less than the level of care the facility is licensed to provide; according to the Secretary, transfer is automatic based upon a finding that the level of need does not match the level of medical services provided, regardless of the individual’s needs. In other words, in the opinion of the Secretary, the decision to transfer is based on one single factor, level of care.
However, the Secretary contradicts his argument that the transfer decision must be based on the recertification of the level of care needed when he asserts that “[h]ad the physician here truly been willing to shoulder responsibility for a decision not to transfer the patient to an SNF, they should *409have certified them as in need of intermediate care services____ But the physician instead certified the patients as in need of skilled services.”5 In advancing this contradictory argument, the Secretary casually suggests, without citation of authority, that the recertification decision may be broadened to include: (1) an assessment of the level of care needed, (2) whether the benefits obtained from transferring the patient to another facility outweigh the health risk associated with transfer and (3) whether the present facility can meet the patient’s needs. Contrary to the Secretary’s belief, the regulations and action transmittals strictly require the person performing the recertification to assess the patient’s "need of a particular level (i.e. hospital, mental hospital, skilled nursing facility, and intermediate care facility) of care.” DHHS, Health Care Financing Administration, Medicaid Action Transmittal 80-68; 42 C.F.R. § 456.260; id. at § 456.-360. A review of these regulations and action transmittal 80-68 fails to reveal any mention of assessing the risk of transfer or of the facility’s ability to respond to the patient’s increased need for care. Moreover, the Secretary assumes that the recertification assessment will be made by a physician. However, the regulations specifically provide that the recertification may be made by a “physician assistant or nurse practitioner ... acting within the scope of practice as defined by state law and under the supervision of a physician.” 42 C.F.R. § 456.260(b)(1); id. at 456.-360(b)(1). Thus, the person performing the certification may not have sufficient medical training, and may not be qualified to assess the danger of transfer trauma much less the ability of the institution to accommodate the patient’s needs. I am at a loss to understand how the majority comes to the conclusion that “the dissent mistakenly states that patients are moved between levels of care based on the decisions of physicians’ assistants and nurse practitioners.” The majority asserts that the patient’s needs are adequately considered because “the transfer of a patient between levels of care is treated as a new admission and requires a physician’s certification.” The new admission does in fact require a physician’s certification but only after the patient has been rejected and found unsuitable for the original facility based on the limited knowledge and experience of a physicians’ assistant or nurse practitioner. Thus, a patient or a patient’s family or guardian who rejects transfer to the new facility for whatever reason is deprived of the qualified medical judgment of a physician. Furthermore, the danger of transfer trauma would not be considered by the physician certifying the new admission for the certification procedure of itself concerns the question only of whether the patient requires the services provided by the new facility. Therefore, I am forced to disagree with the majority’s assertion that the secretary’s regulations create a “prophylactic interpretive rule which treats the physician’s determination as the sole decisive factor.” See State Medicaid Manual sec. 9220.6
*410A nursing practitioner or physician’s assistant is not adequately trained to make the all-important decision dealing with levels of care. It is shocking in our day of advanced medical research, techniques and surgery, when organ transplants and space medicine research are routinely-accepted medical procedures, that we seem to be forgetting and casting aside the all-important human and personal element in medical care. It is equally shocking that we are in effect turning the medical transfer decisions over to the paper shuffling bureaucrat for a review of an inadequately trained medical support assistant. Nursing practitioners and physician’s assistants are incapable of making this life-threatening judgment, because they lack both the personal contact with the patient and his family over a period of time, and most frequently lack the necessary expertise, training and experience in psychology, psychiatry and geriatrics required to properly interpret and knowledgeably assess the dangers of transfer trauma. Because the physician’s assistant or nurse practioner is not qualified to assess transfer trauma, the automatic transfer of a patient based solely on the recertification decision of a physician’s assistant or nurse practitioners, in effect, amounts to a transfer based on a predetermined decision of the Secretary which does not consider the medical heeds of the patient. Thus, the Secretary is interfering in the providing of medical services, contrary to the Congressional mandate not “to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided” is to be obeyed. The majority in fact endorses this dissent by admitting that the decision to transfer should be based on the attending physician’s decision concerning the appropriateness of the transfer. But the majority erroneously — indeed, insensitively — confines the scope of the physician’s judgment to exclude consideration of transfer trauma. The net result is that patients suffering from organic brain syndrome, senile dementia, Alzheimer’s disease, cerebral arteriosclerosis and chronic brain syndrome may be transferred from one facility to another despite the educated, sincere, and considered medical judgment of their attending physicians against transfer.7
The secretary, of course, boldly asserts that he would accept a recertification of the patient as needing one kind of care when in fact another is necessary. The implication is that these important ele*411ments of the transfer decision might be brought “under cover” in the recertification decision. He fails to cite any authority whatever for this position, yet the majority unquestioningly accepts it as the truth. Indeed, the implication to be drawn from this rash recommendation (“Had the physician here truly been willing to shoulder responsibility for a decision not to transfer the patient to an SNF, they should have certified them as in need of intermediate care services____ But the physician instead certified the patients as in need of skilled services.”) in effect suggests that the physician violate his Hippocratic oath, which requires in relevant part that a physician “prescribe regimen for the good of my patients according to my ability and my judgment and never do harm to anyone, ... nor give advice which may cause (the patient’s) death,” and that the physician “preserve the punity of my life and my art.” It also demeans the integrity of the very practice of the profession — medicine. The Secretary’s appellate counsel’s proposal that the physician falsify the recertification of a patient needing skilled services through certifying the patient as needing an intermediate level of care is shocking and not worthy of an attorney following the precepts our code of professional responsibility. Further, the Secretary’s suggestion (“[h]ad the physician here truly been willing to shoulder responsibility for a decision not to transfer the patient to an SNF, they should have certified them as in need of intermediate care services”) not only distorts the meaning and purpose of the recertification requirement but also replicates the Wisconsin variance system without the safety features Wisconsin provides. The Secretary blandly asserts, “HHS would accept this certification [of a patient needing SNF care as an ICF patient], although the facility would jeopardize its certification if it in fact failed to meet the patient’s actual needs,” but explains neither how the falsely certified patient’s care (ie., the patient needing skilled care who has untruthfully been certified as needing intermediate care) would be monitored nor how the institution would cope
with caring for a patient needing greater services if retaining the patient would affect the other patients’ care. Wisconsin, on the other hand, requires a physician seeking permission to allow a patient needing increased services to remain in the present facility to inform the Wisconsin Department of Health and Social Services how the patient’s care will be enhanced and how the other residents’ care will not be diminished. Furthermore, the Wisconsin regulations require the attending physician to assume an increased type of responsibility for the care of the resident. Thus, in contrast to the Secretary’s off-the-cuff assertion that physicians could avoid transfer trauma by falsifying the patient’s certification (that is, by certifying a patient who, in fact needs skilled care, as needing intermediate care), Wisconsin places conditions and safeguards on a grant of a variance to ensure that the patient will receive adequate treatment and that allowing an SNF certified patient to remain in an intermediate care facility will not diminish the care of the other residents.
In sum, the Medicaid regulations and action transmittals restrict the person performing the recertification to an assessment of the level of care needed; from our research we have found no support in the Medicaid Act or regulations for the Secretary’s belief that the person performing the recertification may consider whether the benefits obtained from transferring the patient to another facility outweigh the health risk associated with transfer or whether the present facility could accommodate the patient’s needs if the risk associated with transfer outweigh the benefits obtainable in another facility. Since the Secretary’s assertion that physicians could avoid transfer trauma by falsifying the re-certification (by certifying a patient who, in fact needs skilled care, as needing intermediate care services) finds no support in the regulations or action transmittals and, in fact, replicates the Wisconsin system without incorporating its safeguards, the assertion rests on a foundation of quicksand; I reject the Secretary’s appellate counsel’s highly questionable contention as an ill-con*412ceived attempt to bolster a weak and speculative argument at best. Thus, the Secretary’s briefs argue in effect that the decision whether to transfer the patient may be based on only one factor, the assessment of the level of care needed made by the person performing the recertification. With this clarification in mind, I turn to the Act, its regulations and its legislative history to determine whether Congress intended that Medicaid patients be automatically transferred, without regard to the medical judgment of the attending physician or the Utilization Review Committee solely because they are recertified as needing a level of care greater or less than the level of care the facility is licensed to provide.
The Secretary reasons that since the patient’s level of need has changed, the patient’s continued stay in the facility is no longer justified. However, the Secretary ignores and casts aside his own rules specifying that continued stay determinations are to be made by the attending physician and the physicians on the Utilization Review Committee. 42 C.F.R. 456.335 (continued stay in SNF); id. at 456.436 (continued stay in ICF). Moreover, the Secretary fails to acknowledge, as the Medicare and Medicaid statutes recognize, that the decision regarding the patient’s transfer to another facility as a result of a change in the patient’s health is a medical judgment that can, and must, only be made by licensed physicians, not by unqualified physician assistants or nurse practitioners. See e.g., 42 U.S.C. § 1395x(l) (made applicable to Medicaid by 42 U.S.C. § 1396(a)(28)) (“transfer of patients will be effected between the hospital and the skilled nursing facility whenever such transfer is medically appropriate as determined by the attending physician). Indeed, the decisions whether to admit, discharge, or transfer a patient are traditionally and are properly only made by qualified medical professionals, licensed physicians and surgeons and regulated by state law. See, e.g., Wis. Stat. § 448.01(9) (“Practice of medicine and surgery means: (a) to examine into the fact, condition, or cause of human health or disease, or to treat, operate, prescribe, or
advise for the same, by any means or instrumentality.”) A physician, whether the attending physician or the physicians on the Utilization Review Committee conducting an extended stay review, must be allowed to consider all factors relating to the patient’s health — physical, emotional, psychological, and familial — when exercising a proper medical judgment. Doe v. Bolton, 410 U.S. 179, 192, 93 S.Ct. 739, 747, 35 L.Ed.2d 201 (1973). “What is best for a [patient] is an individual medical decision that must be left to the judgment of physicians in each case. We ... emphasize that the decision should represent an independent judgment of what the [patient] requires and that all sources of information that are traditionally relied on by physicians ... should be consulted.” Parham v. J.R., 442 U.S. 584, 608, 99 S.Ct. 2493, 2507, 61 L.Ed.2d 101 (1979). Each and every medical problem requiring the exercise of medical judgment varies in complexity and severity, but what all cases have in common is an “individual human being,” a patient who has an illness or condition, whose treatment must be evaluated by one with the compassion, the authority and necessary medical training, and the intimate knowledge of the patient’s problem and needs (including the patient’s physical and psychological capacity to adjust to a change in nursing homes and the possible disruption of family ties), required to make the treatment decision: the physician. Nameless, faceless, lay government officials have neither the knowledge of the patient’s needs, the medical training, nor the authority to make treatment decisions. As the Supreme Court determined in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), governmental intrusion into the physician’s medical judgment violates the constitutional rights of both physicians and patients.
“The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship.
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*413The State licenses a physician. If he is derelict or faithless, the procedures available to punish him or to deprive him of his license are well known____ Crucial here, however, is state-imposed control over the medical decision____ The good-faith decision of the patient’s chosen physician is overridden and the final decision passed on to others in whose selection the patient has no part. This is a total destruction of the right of privacy between physician and patient and the intimacy of relation which that entails.
The right to seek advice on one’s health and the right to place reliance on the physician of one’s choice are basic to Fourteenth Amendment values.”
410 U.S. at 219, 93 S.Ct. at 761 (Douglas, J., concurring). See also, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Rosen v. Louisiana State Board of Medical Examiners, 380 F.Supp. 875 (E.D.La.1974), aff'd, 419 U.S. 1098, 95 S.Ct. 767, 42 L.Ed.2d 795 (1975); Nyberg v. City of Virginia, 495 F.2d 1342 (8th Cir.), cert. denied, 419 U.S. 891, 95 S.Ct. 169, 42 L.Ed.2d 316 (1974).
In the absence of a clear congressional mandate, courts must not assume that the federal government even intended to intrude into a field traditionally occupied by the States. Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311 (1940). The legislative history of the Medicaid and Medicare Acts are devoid of any authority for the proposition that the Department of Health and Human Services may determine in individual cases the form of medical treatment to be provided. To the contrary, when Congress enacted the utilization review and PSRO provisions in 1972, it reiterated the position it had taken in the Medicare Act that, “[njothing in this subchapter shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided.” 42 U.S.C. § 1395; see S.Rep. No. 1230, 92nd Cong., 2d Sess. 256-58 (1972); United States v. University Hosp., 729 F.2d 144, 160 (2d Cir.1984).8
Furthermore, in the past, we have enjoined Medicare and Medicaid regulations that “have the effect of directly influencing a doctor’s decision on what type of medical treatment will be provided, thus directly interfering with the practice of medicine.” Am. Med. Assoc, v. Weinberger, 522 F.2d 921, 925 (7th Cir.1975). It is apparent to me that the Secretary’s automatic transfer rule directly and unquestionably interferes with the practice of the profession of medicine. Because the Secretary mandates transfer upon the determination that the patient needs a level of care that the facility is not licensed to provide (in effect, mandating a determination that continued stay is no longer medically indicated based upon the recertification of the level of care needed), the Secretary’s scheme permits the consideration of only one factor in deciding whether the patient should be transferred (i.e., discharged from the nursing home) — the level of care needed. By restricting the physician’s assessment to one factor (level of care needed), the Secretary prohibits the physician from weighing and balancing, based upon his medical knowledge and experience, the needs and requirements of the individual patient’s medical and psychological problems, if any, to ascertain the risk associated with transfer, a determination that he is ethically required to make. Thus, the Secretary’s rule restricting the physician’s consideration to but one factor when deciding whether to transfer a patient clearly violates the rule that a physician and surgeon must be allowed to consider all factors relevant to *414the patient’s health — physical, emotional, psychological and familial — when exercising his best medical judgment.
Indeed, restricting the physician’s evaluation to one factor, “level of care needed,” is an interference with and a travesty upon the practice of medicine and is particularly egregious in light of its impact on the area of geriatrics. Research has been conducted on the importance of thoroughly evaluating the medical and psychosocial needs of geriatric patients by a team of physicians, social workers, psychologists, geriatric dentists, occupational and physical therapists, and dietitians who developed a treatment and discharge plan tailored to each individual patient’s needs. Champlin, DRGs: Putting the Squeeze on Your Older Patients? Geriatrics, July 1985 at 77. The study revealed that a thorough evaluation program “ ‘can have substantial, positive effects on a targeted subgroup of frail elderly in-patients beyond the benefits of the usual medical care.’ The patients ‘had a significantly longer survival and less use of acute-care and long-term institutional services after one year of follow-up.’ ” Id. at 78. Moreover, the substitution of the Secretary’s rule for the physician’s rational and reasoned judgment not only detrimentally interferes with the medical care elderly patients receive, but also intrudes in an area of the highest sensitivity — the transfer of the terminally ill patient. In the case of an involuntary transfer of a terminally ill patient, the transfer often removes him from the care of his regular physician, with whom he has developed a close and trusting relationship:
“If he or she is alert, the loss of the physician may be particularly devastating. The physician may be thought to be abandoning the patient because of monetary concerns, despite all discussion to the contrary. It is not easy for the physician to forget the look on the face of the conscious dying patient being wheeled out of the hospital to spend his or her final hours with strangers.”
Lind, Transferring the Terminally Ill, 311 New England J. Med., 1181-2 (1984). As the facts of this case illustrate, the transfer ofttimes provides no benefit to anyone, much less the terminally ill patient. A patient with three to six months to live was ordered to be transferred from the nursing home where he resided with his wife. Since the patient was dying, the transfer could not save his life and could only rob him of a chance to spend his final days with his wife.
In brief, the Secretary’s rule interferes with the practice of medicine by restricting the physician’s assessment of whether the patient should be transferred • to but one factor — the level of care needed. Because of the special needs of the elderly patient, including transfer trauma and the need for careful discharge planning based upon the thorough evaluation of the patient’s medical and psychosocial needs, the Secretary’s substitution of his judgment for that of the physician’s intrudes into a decision of profound importance to the health of the geriatric patient. In short, the Secretary’s transfer rule replaces the expertly trained physician’s qualified and reasoned assessment of the patient’s individual needs with an automatic transfer decision based on a determination, which in all probability is made by a non-professional, that one factor relevant to the patient’s continued stay in the institution has changed — the level of care needed. In my opinion, the Secretary blatantly disregards Congress’ specific admonition that he has not been authorized “to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided.” 42 U.S.C. § 1395; S.Rep. No. 1230, 92nd Cong., 2d, Sess. 256-58 (1972). I am convinced from the language of the enabling legislation that Congress never intended to intrude into the doctor-patient relationship in this manner; nor can I believe that Congress enacted such a faceless and inhumane system as the Secretary of Health and Human Services seeks to implement. Congress has not abandoned its respect for the human dignity of our fellow man.
Moreover, the Secretary’s automatic transfer rule not only interferes with the physician’s exercise of his medical judg*415ment but also undermines the very statutory scheme of utilization review. The legislative history of the PSRO statute, enacted at the same time as the statute providing for utilization review and intended to replace in-house Utilization Review Committees, reveals that the certification requirement was intended to be a part of continued stay review:
“The PSRO ... would be responsible for reviewing attending physician’s certifications of need for continued hospital care beyond professionally determined regional norms directly related to patients’ age and diagnosis, using criteria such as the types of data developed by the Commission on Professional and Hospital Activities ____ It is expected that such certification would generally be required not later than the point where 50 percent of patients with similar diagnosis and in the same age groups have usually been discharged____ This professionally determined time of certification of need for continued care is a logical check point for the attending physician and is not to be construed as a barrier to further necessary hospital care. Neither should the use of norms as check points, nor any other activity of the PSRO, be used to stifle innovative medical practice or procedures. The intent is not conformism in medical practice — the objective is reasonableness.”
Senate Report at 263 (emphasis added). Indeed, the statutory scheme explicitly provides that the decision of whether to allow a patient to remain in a facility is to be made by those physicians and surgeons participating in the continued stay review process. 42 C.F.R. Part 456, Subparts E and F. The specialists, the physicians and surgeons performing the continued stay review, must review and consider the criteria developed to assess the need for continued stay. 42 C.F.R. §§ 456.332-336; 456.432-436. By mandating transfer automatically upon recertification of a level of need the facility is not licensed to provide, the Secretary has bypassed the very utilization review system he has developed and approved and required medical institutions to follow in that: (1) the physician assessing the question of whether the patient should remain in the facility is improperly required to limit the assessment to one factor, level of care needed, rather than all the factors relevant to the patient’s health needs; (2) transfer is automatic and the patient and attending physician are deprived of their right to present additional information to the Utilization Review Committee, as guaranteed by 42 C.F.R. §§ 456.336; 456.337; 456.436; 456.437; (3) the Utilization Review Committee is prevented from performing its duty to assess the patient’s reasons for staying against its criteria for assessing the need to stay; and (4) the criteria for evaluating the need for continued stay developed by the Utilization Review Committee have been cast aside and replaced by the Secretary’s criterion — level of care needed.9
To summarize, the Secretary’s automatic transfer rule (in effect, a determination that continued stay in the institution is not medically necessary based upon the recertification of level of care needed) destroys the very necessary and statutory division of authority between the Secretary and the medical profession. Indeed, the Secretary has lost sight of and completely disregarded the Congressional mandate that nothing in the Medicare or Medicaid Acts “shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided.” 42 U.S.C. § 1395; S.Rep.No. 1230, 92nd Cong., 2d Sess. 256-58 (1972). Under the statutory scheme, the medical profes*416sion, through Utilization Review Committees and PSROs, determines the medical necessity of care given to Medicaid beneficiaries. The Secretary assures quality of care by (1) ensuring that the Utilization Review Committees and PSROs, in fact, evaluate the medical necessity of the care given; and (2) imposing conditions of participation. Thus, under the statutory scheme enacted by Congress, physicians and surgeons determine whether it is medically necessary for a patient to remain in a facility. The Secretary assures quality of care by requiring review by Professional Standards Review Organizations and by imposing the conditions of participation (i.e., the personnel, service and physical environment requirements). But, the statutory scheme does not permit the Secretary to overrule the physician’s judgment of medical necessity or to deny the physician his right, and his responsibility, to make a medical judgment based upon all the factors relevant to the patient’s health— physical, emotional, psychological, and familial. As noted above, the evaluation of the need to transfer a patient because continued placement in the institution is not medically indicated necessitates three determinations: (1) whether the patient requires a level of care greater or less than the level of care the facility is licensed to provide; (2) whether the benefits obtainable at a different facility outweigh the risk associated with transfer and (3) whether the facility could accommodate the patient’s needs if the patient was not transferred. The first two questions (the assessment of level of need and the evaluation of risks and benefits) are medical judgments that may be made only and reviewed by medical professionals. The third question, whether the facility can accommodate the patient’s needs, is analogous to the conditions of participation and is properly reviewed by the Secretary. The Secretary’s interpretive ruling requiring transfer upon a recertification that the patient needs a level of care that the facility is not licensed to provide, prohibits the physician from evaluating the risk and benefits of transfer. Thus, the Secretary’s interpretive rule is invalid because it prohibits the physician from making a medical judgment to transfer the patient based upon all factors relevant to the patient’s health, and prohibits the physicians and surgeons on the Utilization Review Committee from reviewing the decision to allow the patient to remain, and thus allows transfer without regard for the Utilization Review Committee’s medical judgment of whether transfer would be detrimental to the patient’s health. In my view, the Secretary’s interpretive ruling must be struck down because it undermines the statutory scheme enacted by Congress by circumventing the continued stay review process mandated in the Medicaid regulations. Commonwealth of Massachusetts v. Dept. of Health and Human Services, 749 F.2d 89, 95-6 (1st Cir.1984). I would uphold the Wisconsin variance system because it allows the attending physician and Utilization Review Committee to evaluate the patient’s need to remain in a particular facility after considering and weighing all the factors relevant to the patient’s health needs — physical, emotional, psychological and familial. Wisconsin properly confines itself to the question it is authorized to review under the Medicaid quality of care assurance system — whether the institution can accommodate the patient’s needs. The Wisconsin system, therefore, enacts the quality of care system contemplated by Congress: physicians and surgeons make an individualized assessment of the patient’s medical needs and this assessment of the patient’s medical needs is reviewed by other physicians and surgeons; the state evaluates whether the institution, in fact, may accommodate the patient’s needs.
III. DISPOSITION
The Secretary advances three arguments against remanding this case to the Departmental Grant Appeals Board (“Appeals Board”): (1) the state failed to present evidence establishing the existence of transfer trauma; (2) the Wisconsin variance procedure does not conform to the plan submitted to the Secretary; and (3) *417Wisconsin failed to follow its variance procedure in granting variances. Wisconsin was not required to present evidence establishing the existence of transfer trauma to the Appeals Board, the district court or this court. The decision of whether transfer trauma is a sufficient risk outweighing the benefits obtainable from the transfer is a medical judgment that may only properly be made and reviewed only by physicians and surgeons, not by the courts. “The mode and procedure of medical diagnostic procedures is not the business of judges. What is best for a [patient] is an individual medical decision that must be left to the judgment of physicians in each case. We ... emphasize that the decision should represent an independent judgment of what the [patient] requires and that all sources of information that are traditionally relied on by physicians and behavioral specialists should be consulted.” Parham v. J.R., 442 U.S. 584, 607-08, 99 S.Ct. 2493, 2507, 61 L.Ed.2d 101 (1979). No judge on this court, nor on any other court that I know of, has the necessary medical training to evaluate the medical and psychosocial needs of geriatric patients; we are neither physicians, medical social workers, or psychologists but are only judges of the law. Furthermore, as my discussion of the utilization review system demonstrated, Wisconsin followed the quality of care system more closely, and in better faith, than the Secretary; the state required recertification of the patient’s need for care and properly allowed the Utilization Review Committees to determine the question of whether the patient should remain in the facility. Wisconsin confined itself to the only question within its statutory authority — whether the facilities could accommodate the patient’s needs. Finally, as to the question of whether Wisconsin adhered to its variance procedure when granting variances, the Appeals Board refused to reach this question. I would remand this case to the Appeals Board to determine whether Wisconsin followed its variance procedure.
The Secretary has misinterpreted the statute requiring the states to conduct concurrent utilization review as mandating transfer if the patient is recertified as needing a level of care that the facility is not licensed to provide. By requiring transfer based upon an assessment of level of care needed, the Secretary unduly restricts the physician’s assessment of the patient’s needs to one factor (level of care needed) and bypasses the statute’s utilization review system for conducting extended care review and thereby undermines the statutory scheme by circumventing the continued stay review process mandated in the Medicaid regulations. The result of the Secretary’s distortion of the utilization review system is the forced transfer of nursing home patients in the face of their physicians’ or a Utilization Review Committee’s medical judgments that the transfer would be detrimental to their health and may cause the death of the patient. I dissent.
. To avoid confusing the United States Secretary of Health and Human Services with the Wisconsin Secretary of Health and Social Services, the federal Secretary will be referred to as “the Secretary” or "the Secretary of Health and Human Services.” The Wisconsin Secretary of Health and Social Services will be denoted as "Wisconsin.”
. Utilization review may take three forms: (1) prospective (preadmission certification by the review coordinator of the need for admission); (2) concurrent (the review coordinator’s review of the need for inpatient care while the patient is in the hospital); and, (3) retrospective (post-discharge review by the utilization review committee of the medical necessity and appropriateness of the care given to the patient). Id. at 6-8.
. A fiscal intermediary, usually an insurance company, is an entity that the Secretary has contracted with to determine whether the provided services are covered by the Act and whether the amount charged for the services and care is fair and reasonable.
. See generally, Borup, et al., Relocation and Its Effect on Mortality, 19 the Gerontologist, 135 (1979); Mercer & Kane, Helplessness and Hopelessness among the Institutionalized Aged: an Experiment, 4 Health and Social Work, 91 (1979); Zweig, and Csank, Mortality Fluctuations Among Chronically III Medical Geriatric Patients as an Indicator of Stress Before and After Relocation, 24 J. The Am. Geriatric Soc., 264 (1976); Gutman and Herbert, Mortality Rates Among Relocated Extended-Care Patients, 31 J. of Gerontology 352 (1976); Brand and Smith, Life Adjustment and Relocation of the Elderly, 29 J. of Gerontology 336 (1974); Brody et al.. Measuring the Impact of Change, The Gerontologists, August, 1974 at 299; Lieberman, Relocation Research and Social Policy, The Gerontologist, December, 1974 at 494; Bourestom and Tars, Alterations in Life Patterns Following Nursing Home Relocation, The Gerontologist, December, 1974 at 506; Markus et al., Some Factors and their Association with Post-Relocation Mortality Among Institutionalized Aged Persons, 27 J. of Gerontology 376 (1972); Killian, Effect of Geriatric Transfers on Mortality Rates, Social Work, January, 1970 at 19; Krai, Grad, & Berenson, Stress Reactions Resulting from the Relocation of an Aged Population, 13 Canad.Psychiat.Ass.J. 201 (1968); Jasnau, Individualized v. Mass Transfer of Nonpsychotic Geriatric Patients form Mental Hospitals to Nursing Homes, with Special Reference to the Death Rate, 15 J. of the Am. Geriatric Soc. 280 (1967); Aldrich & Mendkoff, Relocation of the Aged and Disabled: A Mortality Study, 11 J. of the Am. Geriatric Soc. 185 (1963). Contrary to the Secretary’s assertion at page 40 of his brief, it is entirely proper for courts to rely on medical literature concerning mortality risk. See e.g. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Brand & Smith, Life Adjustment and Relocation of the Elderly, 29 J. of Gerontology 336 (1974) (citations omitted).
. An analogous pressure is placed on the physician by the Medicare Systems’ adoption of the Prospective Payment System ("PPS”). Staff of Senate Special Committee on Aging, Impact of Medicare’s Prospective Payment System on the Quality of Care Received by Medicare Beneficiaries, September 26, 1985 at 13. Under PPS, a patient is assigned to a Diagnostic Related Group ("DRG") upon admission to the hospital and the hospital receives a set fee depending upon the DRG assigned, no matter the actual costs. Id. at 10-11. The Staff of the Special Committee oh Aging interviewed physicians as to the procedure they follow in deciding patient's real needs, and physicians "either ‘fudge’ the diagnosis (stretch the truth to provide enough hospital care to cover the admission) or just decide to administer treatments that are not really indicated.” Id. The physicians reported that they were pressured into "fudging” the diagnosis by potential criticism from the hospital’s Utilization Review Committee for keeping patients too long. Id. "Thus the doctor is often placed in the position of cheating the system and caring for his patients or following the system and taking the consequences.” Id.
. State Medicaid Manual sec. 9220 provides that “(r)ecertification is the process by which a physician, nurse practitioner or physician assistant who has knowledge of the case attests to an individual’s continued need for a specific type of level of care.” (Emphasis added.) This regu*410Iation goes on to say that “nurse practitioners and physician’s assistants under the supervision of a physician may ... recertify to the need for inpatient services____" (Emphasis added.) It also lists as an acceptable form of recertification the "signed and dated statement by the physician, nurse practitioner or physician assistant who has knowledge of the case that continued care of a particular level or type is needed.” (Emphasis added.) Thus, any one of the three in the medical support organization — the physician, the physicians’ assistant or the nurse practitioner (only if "under the supervision of a physician”) — may under the regulation recertify or refuse to recertify. See also 42 C.F.R. secs. 456.60, 456.160, 456.260, 456.360 (permitting this kind of recertification in hospitals, mental hospitals, SNFs and ICFs), implementing sec. 2183 of the Omnibus Budget Reconciliation Act of 1981, PL 97-35.
. Furthermore, secs. 9220 and 9220.1 fail to define or delineate the duties and responsibilities of the "supervising" physician. Nor has diligent search revealed any other legal constraints requiring that the “supervising” physician be trained in psychology, psychiatry or geriatrics. Furthermore, "(w)hile the (supervising) physician may choose to provide direct, on-the-premises or over-the-shoulder supervision of the physician assistant or nurse practitioner who recertified the need for inpatient care, general supervision will suffice for recertification purposes." Sec. 9220.1 (emphasis added). The regulations fail to define either "over-the-shoulder” or "general” supervision. This may very well be nothing more than having the supervising physician’s secretary stamp his seal of approval on the form and his initialing the same thereafter without ever taking a detailed case history, much less even examining the patient in reaching and implementing this significant transfer decision.
Moreover, the regulations specifically exclude the attending physician from being a member of the Utilization Review Committee (secs. 456.135, 456.236, 456.336, and 456.436). See also CCH Medicare & Medicaid Guide, sec. 12.730. The regulation does not require that even one staff physician from the institution in which the patient resides be on the Utilization Review Committee. Ibid.
. A similar prohibition of federal interference with hospital affairs was enacted in the Hill-Burton program.
"Except as otherwise specifically provided, nothing in this subchapter [42 U.S.C. sec. 291 et seq.] shall be construed as conferring on any Federal officer or employee the right to exercise any supervision or control over the administration, personnel, maintenance or operation of any facility with respect to which any funds have been or may be expended under this subchapter."
42 U.S.C. § 291m.
. In footnote 8, the majority states that "we do not find utilization review relevant to the question before us____” However, as detailed in this dissent utilization review includes a review of the attending physician's recommendation regarding the transfer of the patient. Thus the Secretary’s application of the automatic transfer rule deprives the patient and physician of the opportunity to present additional information to the utilization review committee detailing the physician’s concern that transfer of the patient to another facility should not be implemented at that particular time because of the attendant health risks.