I dissent because the majority opinion is premised upon an improper characterization of the issues and hence does not address the dispositive question of statutory interpretation, the answer to which dictates a contrary result. The consequence of this oversight will be visited upon the tens, perhaps hundreds, of thousands of persons who will be denied needed medical services because their illnesses are less than life threatening or are deemed less than significant or are accompanied by pain that is less than severe.
The critical mistake is that, with respect to the question—who determines the scope of medical services required to be offered under the federal law?— the majority opinion sets up a false dichotomy between the Legislature and the individual physician. The correct answer is neither, for it is a judicial question. The determination of the scope of medical services which the state must offer, because it requires an interpretation of the governing federal law, is a question for the courts to resolve. The dispositive question is whether the California statute conflicts with the controlling federal statutes. The judicial responsibility to determine if there is a conflict cannot be evaded by reposing it elsewhere.
The interpretive issue, never addressed by the majority opinion, is: whether the language of the federal statute, which mandates that the state provide at the minimum the care and services listed in paragraphs (1) through (5) and (17) of United States Code section 1396d(a) of title XIX (namely: “(1) inpatient hospital services,” “(2)(A) outpatient hospital services,” “(3) other laboratory and x-ray services,” “(4)(A) skilled nursing facility services,” “(5) physicians’ services” and “(17) services furnished by a nurse-midwife”), can be squared with California’s drastic restriction of these *989services to those which are “reasonable and necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain.” These restrictions are accomplished by defining “medical necessity” so as to include them. (Welf. & Inst. Code, § 14059.5.)
As will be shown, the governing federal statute bars the imposition of these restrictions. The United States Supreme Court has noted that the failure of a state to provide necessary medical services in the mandatory categories would raise serious statutory problems. (Beal v. Doe (1977) 432 U.S. 438, 444-445 [53 L.Ed.2d 464, 472, 97 S.Ct. 2366].) In my view, such problems are fatal to the restrictions imposed by California.
The dispositive question is—what is the federal definition of “medical necessity?”—for that is what is binding upon the states and hence upon the Legislature and the physician alike. The short answer is that the federal statutes provide a definition in title XVIII (42 U.S.C. § 1395y(a)(l)(A)), which has consistently been equated with “medical necessity” in the federal case law. It provides that a service is “medically necessary” if it is “reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member . . . .” This controlling definition is facially at odds with the more restrictive California law, which, perforce, must give way.
The majority opinion avoids this conclusion by avoiding the question to which it is the answer. It engages the wrong question which begets the wrong answer. Because at the outset the majority opinion goes off the tracks, I begin the analysis of the governing law, necessarily, at the place of derailment, the beginning.
I
This is an appeal by the state from a judgment granting a peremptory writ of mandate. The writ, inter alia, would command the Director of the Department of Health Services not to enforce or implement Welfare and Institutions Code sections 14133.3 and 14133, subdivision (a). The theory of the judgment is that these statutes conflict with controlling federal law. Section 14133.3 limits coverage of the Medi-Cal program to services that are “medically necessary,” as defined by statute. Section 14133, subdivision (a) provides for a system of prior authorization for Medi-Cal services; under the system certain nonemergency services require administrative approval in advance of rendition or payment is denied. I consider each aspect of the peremptory writ separately.
*990II
Medi-Cal is California’s medical assistance program under the Medicaid Act, Title XIX of the Social Security Act of 1956. The program funds medical assistance benefits for eligible needy persons who are aged, blind, disabled, or in families with dependent children. Once a state opts for participation in such a federal grant-in-aid scheme, the substance of its participation is governed by federal law. (E.g., King v. Smith (1968) 392 U.S. 309, 333, fn. 34 [20 L.Ed.2d 1118, 1134, 88 S.Ct. 2128].) Thus, state legislative enactments or administrative regulations which conflict with federal statutes, or lawful federal regulations implementing them, are invalid and void. The question on this appeal is whether the California statutes, which would limit Medi-Cal to care and services “reasonable and necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain,” conflict with federal law.
The trial court found such a provision conflicts with federal law, inter alia, because it denies medical assistance for care and services which are “medically necessary” contrary to the requirements of title XIX. I disagree with the reasoning of the trial court insofar as it implies that the standard of “medical necessity” is to be determined by individual physicians, but not with the conclusion that the state’s definition of medical necessity conflicts with title XIX.
The purpose of the Medicaid program is set forth in 42 United States Code section 1396 as follows: “[To enable] each State, as far as practicable under the conditions in such State, to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care . . . .” This statement of purpose was enacted in 1965 when the Social Security Act was amended in pertinent part to expand the Medicaid program. (Pub.L. No. 89-97 (July 30, 1965) 79 Stat. 286; see Sen. Rep. No. 404, 1965 U.S. Code Cong. & Admin. News, p. 1943.) The amendment required for the first time that states participating in the program provide medical assistance for certain designated categories of medical care and services. (See id., at pp. 1950-1951.) Presently these mandatory categories are inpatient hospital services, outpatient hospital services, other laboratory and X-ray services, skilled nursing home services, physician services, and services furnished by a nurse midwife. (42 U.S.C. § 1396a(a)(10).) The Senate report, in a segment entitled “scope of medical assistance,” refers to these services as minimum benefit requirements. (See 1965 U.S. Code Cong. & Admin. News, supra, at p. 1950-1951.)
*991The threshold question is: is the state at liberty to fashion its own definition of medical necessity as a limitation on these minimum benefit requirements? The answer is no. The meaning of “medical necessity” is fixed by the federal Medicaid statute and the companion amendments made in 1965 to the Medicare Act, Title XVIII of the Social Security Act of 1956. As appears, California’s challenged definition of medical necessity would result in constriction of benefits below the minimum benefit requirements of the federal statute and hence it must be stricken.
A
I first briefly set out the background of the challenged statutes.
At the outset of California’s medical assistance program under the 1965 amendments to title XIX the federal mandatory categories and several optional categories of care and services were provided under the rubric of “[h]ealth care and related remedial or preventive services.” (See former Welf. & Inst. Code, §§ 14005, 14006.5, 14053, Stats. 1966, Second Ex. Sess. 1965, ch. 4, pp. 105-106, 107, 110-111.) The only apparent limitation of coverage was contained in former section 14059 which, in conjunction with former section 14052, limited most services to “diagnostic, preventive, corrective, and curative services and supplies essential thereto, provided by qualified medical and related personnel for conditions that cause suffering, endanger life, result in illness or infirmity, interfere with capacity for normal activity including employment, or for conditions which may develop into some significant handicap. ...” (Stats. 1966, Second Ex. Sess. 1965, ch. 4, p. 112.)
In 1975 this scheme was overlaid with a provision saying that benefits are limited to listed federal mandatory and optional categories of care and services, most of which are qualified by the clause “subject to utilization controls.” (See Welf. & Inst. Code, §§ 14131, 14132.) The utilization controls are set out in section 14133. In pertinent part they require prior authorization for some services and subsequent audits for all services with coverage contingent upon a determination that the service is medically necessary. No statutory definition of medical necessity was provided initially.
In 1982 section 14133.3 was enacted saying that requests for prior authorization must be supported by documentation that “the requested services are medically necessary to protect life or prevent significant disability . . . .” The statute also directed that utilization controls be developed for all care and services implementing the same limitation. This enactment gave rise to this litigation.
*992In 1985 Welfare and Institutions Code section 14059.5 was enacted and section 14133.3 was amended. Section 14059.5 says: “A service is ‘medically necessary’ or a ‘medical necessity’ when it is reasonable and necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain.” As amended, section 14133.3 substituted the section 14059.5 standard of medical necessity for the prior formulation “necessary to protect life, or prevent significant disability . . . .’’At issue is the present statute, since the order under review is injunctive in nature. Hence, it is necessary to address plaintiffs’ present claim that sections 14059.5 and 14133.3 conflict with federal law.
The problem of the constraint of medical necessity and the flexibility accorded states to limit the scope of Medicaid benefits is not novel.1 The only controlling authority addressing the topic is Beal v. Doe, supra, 432 U.S. 438 [53 L.Ed.2d 464]. In Beal, Pennsylvania had promulgated a regulation limiting Medicaid coverage of abortion to cases where the procedure was certified by a physician to be medically necessary. (Id., at p. 441 [53 L.Ed.2d at p. 470].) The issue tendered was whether the regulation conflicted with the federal Medicaid statute in denying coverage for certain abortions; specifically, in denying coverage where there was no physician’s certification that continuance of the pregnancy might threaten the health of the mother (in any manner other than the generic threat that inhers in termination of pregnancy by childbirth). (Id., at pp. 441, 445 [53 L.Ed.2d at pp. 470, 472].) The holding in Beal is that such a regulation is not invalid. (Id., at p. 447 [53 L.Ed.2d at p. 474].)
The Beal opinion acknowledges the requirement that states provide financial assistance for the care and services listed as mandatory in title XIX. (Id., 432 U.S. at p. 444 [53 L.Ed.2d at p. 471].) “Although serious statutory questions might be presented if a state Medicaid plan excluded necessary *993medical treatment from its coverage, it is hardly inconsistent with the objectives of the Act for a State to refuse to fund unnecessary—though perhaps desirable—medical services.” (Id., at pp. 444-445 [53 L.Ed.2d at p. 472].) The Beal court found that termination of pregnancy by abortion, absent an unusual threat to the health of the mother, is not medically necessary.
What is the nature of the serious federal statutory questions presented if a state excludes necessary medical treatment from Medicaid coverage? The obvious problem is that the exclusion of necessary medical treatment would conflict with the minimum benefit requirements of title XIX. States may deny coverage within the mandatory categories if the care and services are not medically necessary. If states are also free to define medical necessity based upon the degree of urgency and their fiscal inclinations, the minimum benefit requirement provision is rendered a nullity.
Strictly speaking, necessity is an either/or concept. “A little bit necessary,” like “a little bit pregnant,” is an oxymoron. Implicit in the Beal opinion and in the federal statutory concept of medical necessity is that medical procedures are either medically necessary or not medically necessary. As appears, the meaning of the federal statutory concept “medically necessary” is fixed. Hence a state cannot redefine medical necessity according to its views of urgency of the need for medical assistance if the result is to deny mandatory coverage of procedures which are medically necessary within the meaning of the federal act.
The concept of medical necessity appears in various places in title XIX. As related, the declaration of purpose defines eligibility in part on inability “to meet the costs of necessary medical services . . . .”(42 U.S.C. § 1396.) A later reference to this provision bears directly on the flexibility accorded to participating states to shape the content of their Medicaid programs. A state plan must “include reasonable standards ... for determining ... the extent of medical assistance under the plan which (A) are consistent with the objectives of [title XIX] . . . .” (42 U.S.C. § 1396a(a)(17).) Hence, a state standard which denies coverage for “necessary medical services” within the mandatory service categories is not within the broad discretion conferred on states. (Cf. Pinneke v. Preisser, supra, 623 F.2d at p. 548; also Beal, supra, 432 U.S. at p. 444 [53 L.Ed.2d at p. 472].)
The concept of medical necessity also appears in title XIX in provisions which advert to the utilization review provisions of title XVIII. (See 42 U.S.C. §§ 1396a(30) and 1396b(i)(4) incorporating by reference the term “medical necessity” in 42 U.S.C. § 1395x(k).) This explicit nexus shows that the content of the concept of medical necessity is identical under both *994titles. (See generally Gosfield, Medical Necessity, supra, 51 Temple L.Q. at pp. 238-243.) That conclusion is reinforced by the enactment of both titles in their modern guise in the same bill in the Social Security Act amendments of 1965. This implication in turn is strengthened by the legislative history indicating that the two titles are part of a “coordinated approach.” (See Roe v. Norton (2nd Cir. 1975) 522 F.2d 928, 940, conc, and dis. opn. of Mulligan, J.)
There is no express definition of the term “medical necessity” in title XIX. However, that does not mean that there is no statutory content to the term. (See Pinneke v. Preisser, supra, 623 F.2d at p. 548.) There is a candidate for a statutory definition of medical necessity in title XVIII. Under this title coverage is ordinarily denied unless the medical procedure is “reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member . . . .” (42 U.S.C. § 1395y(a)(l)(A).) This provision has been consistently equated with the term medical necessity in federal medicare case law. (See, e.g., Hultzman v. Weinberger (3d Cir. 1974) 495 F.2d 1276, 1282; Mount Sinai Hospital, Inc. v. Weinberger (5th Cir. 1975) 517 F.2d 329, 335.) As I have shown, the title XIX provisions advert to the utilization review provisions of title XVIII so as to equate the meaning of “medical necessity” under both titles.
Beal, supra, 432 U.S. 438, implies that the content of the term medical necessity is determinate and determinable as a matter of federal law. Indeed, the fundamental precept of law, consistency, impels the conclusion that medical necessity cannot have a different meaning in different states. The Beal opinion suggests that medical necessity is a medical judgment that the measure is reasonable to safeguard or improve the health of the patient. (See Beal, supra, 432 U.S. at p. 441, fn. 3 [53 L.Ed.2d at p. 470].) This is entirely consistent with employment of 42 United States Code section 1395y(a)(l)(A) as the federal definition of medical necessity. Moreover, this definition accounts for the holding in Beal that “non-therapeutic” abortion is not required to be covered by a state Medicaid plan. A normal pregnancy is not in ordinary usage called an injury or illness nor does a “non-therapeutic ” abortion improve the functioning of a malformed body member. (Cf. Geduldig v. Aiello (1974) 417 U.S. 484, 496, fn. 20 [41 L.Ed.2d 256, 264-265, 94 S.Ct. 2485].)
Use of this definition also comports with the usage of “medically necessary” I would expect in ordinary speech. One would say a care or service was medically necessary if undertaken pursuant to a physician’s professional advice to prevent, cure, or alleviate illness, injury, or malformation of a body member.
*995Any narrower definition of medical necessity would have to be premised on the perception that the phrase is a technical term. But there is no textual or contextual indication that any special or technical meaning is appropriate. Moreover, any such construction would rebuff the canon that remedial legislation such as the Medicaid Act should be construed liberally. (See, e.g., Brooks v. Smith (Me. 1976) 356 A.2d 723, 729.) Under this canon an ambiguous term is ordinarily construed in favor of coverage for the recipient. (See, e.g., In-Home Supportive Services v. Workers’ Comp. Appeals Bd. (1984) 152 Cal.App.3d 720, 733 [199 Cal.Rptr. 697].)
California’s proferred definition of medical necessity challenged in this case is medical services “reasonable and necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain. ” Under Welfare and Institutions Code sections 14059.5 and 14133.3, this definition is injected into the system of utilization controls and is applied to all services, including those services made mandatory by title XIX. This definition is in facial conflict with federal law insofar as it would deny coverage for “medically necessary” care and services (as defined under federal law) for mandatory categories of care and service under the Medicaid Act. Medical care and services reasonably recommended to diagnose, cure, or prevent minor illness, to improve the functioning of a malformed body member regardless if it amounts to a significant disability, or to alleviate moderate pain or minor discomfort which attend injury or illness must be provided within the mandatory service categories. Hence, language in California’s statutes which would exclude coverage of such care and services is invalid on the ground of federal supremacy.
B
I am not swayed from this conclusion by the consideration that the Department of Health and Human Services advocates the contrary position. The question is one of interpretation of the federal statute.2 As to such *996questions the view of the responsible administrative agency is not binding upon the court. (See, e.g., Batterton v. Francis (1977) 432 U.S. 416, 425, fn. 9 [53 L.Ed.2d 448, 456, 97 S.Ct. 2399]; 2 Davis, Administrative Law Treatise, supra, § 7:13.) The degree of weight accorded the agency view varies based upon the confidence of the court in its own reading of the statute, the pertinence of expertise of the agency to the matter at hand, and various technical considerations such as whether the agency view is a contemporaneous construction, of long duration, has been consistently maintained, or if embedded in a regulation, has been impliedly endorsed by statutory reenactment. (See ibid.)
Here, the opposition of the Department of Health and Human Services is an insufficient consideration to dissuade me from my announced reading of the Medicaid statute. Although the statutory question requires a complicated analysis I have a high degree of confidence that the analysis is correct. The department offers no legal argument which shakes that confidence into the realm of significant doubt. The department presents no reasoned explanation of the manner in which esoteric questions within its special administrative expertise may be clouding my view. Nor is there any indication that any of the potential technical considerations mentioned above strongly commend deference to the department’s view in this case.
C
The language in Welfare and Institutions Code sections 14095.5 and 14133.3 which would produce the unlawful effect in conflict of federal law is invalid and must be stricken. (See People’s Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, 330-334 [226 Cal.Rptr. 640].) But this language is the core ánd only substance of these challenged statutes. The provisions should be stricken in their entirety on the ground that no mechanical severence of invalid language is possible. A court is not at liberty to rewrite the provisions, e.g., by inserting qualifications limiting their application to nonmandatory services under title XIX. (Id., at p. 330, fn. 15.) Hence, it is not necessary to consider the other arguments concerning validity and invalidity of sections 14095.5 and 14133.3 tendered by the parties.
Ill
The second main component of the writ would extinguish the prior authorization scheme under Welfare and Insitutions Code section 14133. As best I can determine from the statement of decision, the trial court concluded that this scheme conflicts with title XIX on various grounds. The statement of decision suggests that section 14133 unlawfully limits coverage of services *997that are medically necessary, that section 14133 conflicts with an implicit federal mandate that physicians decide whether a care or service is medically necessary, that because of fiscal constraints the prior authorization system operates with less staff than reasonably required to process requests for prior authorization, that the prior authorization system costs more than it saves, and that many drugs which are medically necessary are, to a substantial degree, unobtainable under the prior authorization system.
The first question is: What is the effect of the conclusions concerning the invalidity of Welfare and Institutions Code sections 14133.3 and 14059.5 on the rationale that section 14133 unlawfully limits Medi-Cal coverage of care and services that are medically necessary? As related, section 14133 was enacted without an explicit statutory definition of the term “medical necessity.” Section 14133.3 and later section 14059.5 were subsequently enacted defining medical necessity implicitly initially and explicitly thereafter. These subsequent enactments were viewed as cost-saving measures. Such savings could only have stemmed from a contraction of the coverage under Medi-Cal, i.e., from a constriction of the term “medical necessity.” Hence, section 14133.3 and later section 14059.5 must be viewed as implied amendments of section 14133. As such, when the amendments are stricken, the meaning of medical necessity in section 14133 is returned to its original unconstricted usage. “Generally stated, the rule is that when discrimination or unconstitutionality results from a statutory amendment, as is the case here, it is the amendment which is invalid and not the original portions of the statute.” (Miller v. Union Bank & Trust Co. (1936) 7 Cal.2d 31, 36 [59 P.2d 1024].)
With the unlawful gloss of sections 14133.3 and 14059.5 removed, I would construe the meaning of “medical necessity” in section 14133 as identical with the previously discussed definition of that term under the federal law of title XIX. Having so construed section 14133 I discern no conflict between it and the federal law mandate concerning minimal requirements for services under the Medicaid Act. Hence, none of my reasoning concerning invalidity of sections 14133.3 and 14059.5 supports a finding of invalidity of section 14133. To the extent that the component of the proposed writ addressed to section 14133, subdivision (a), is based upon that rationale, it is unwarranted. The trial court’s concern about unavailability of medically necessary drugs is also extinguished by the invalidation of sections 14133.3 and 14059.5.
These conclusions call into question the entire judgment insofar as it extends to matters beyond the invalidity of section 14133.3 and section 14059.5. The nature of the statement of decision is such that I cannot disentangle the findings of the trial court and determine whether any of the *998other restraints of the proposed writ would have been imposed upon the state if the “medical necessity” problem had been correctly analyzed and confined. As to the restraint on the enforcement or implementation of section 14133, none of the other reasons given in the statement of decision tenders a challenge to that statute’s validity on its face. At most these reasons pertain to possible conflict with federal law in the manner in which the statute has been applied, i.e., in the administrative scheme established under the statute.
The appropriate resolution is to overturn the remainder of the judgment and return the matter to the trial court for reconsideration in view of this reasoning. That I would do. That tenders several other concerns.
IV
A principal concern of the trial court was the perceived mandate of title XIX that the individual physician determine the medical necessity of services provided to Medi-Cal recipients. The trial court’s perception of the scope of this mandate may be somewhat overblown. I find no intimation in the federal law that the judgments of individual physicians concerning the medical necessity of services are not subject to review. Regardless of the hope that the practice of the art of medicine not be unduly hindered by heavy-handed bureaucratic second-guessing, the federal law expressly mandates utilization controls which encompass review to safeguard against unnecessary utilization of services. (42U.S.C. § 1396a(a)(30).) Moreover, as to care and services within the optional categories of title XIX, it is not immediately apparent why a state should not be able (by lawful means) to limit its degree of participation to coverage of circumstances more grave than all those encompassed by the federal medical-necessity standard.
As to care and services that a state has lawfully declined to cover there is nothing inherently improper in denying reimbursement via an administrative prior authorization scheme. Even as to those categories of care and services where medical necessity is a federal criterion of mandatory coverage, there is no intrinsic impropriety in such screening. Ultimately, questions of medical necessity are questions of public law and adjudicative fact. The deference granted to the physician pertains to expertise on the adjudicative fact component. But even that deference is not to the idiosyncratic opinion of individual physician, rather it is to the professional judgment of that physician, subject to and constrained by professional norms of justification and the underlying standard of public law.
As to the claim that the administrative costs of such a scheme outweigh the actual savings in lawful denial of noncovered care and services, I am unpersuaded. The argument is certainly not novel. (See tenBroek, Califor*999nia’s New Medical Care Law and Program (1958) 46 Cal.L.Rev. 558, 579-583.) Here the evidence of costs and benefits is very sketchy and does not account for possible savings in deterrence of inappropriate utilization of care and services. Moreover, this is the sort of argument that should be addressed to the lawmaker. (See American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 372-374 [204 Cal.Rptr. 671, 683 P.2d 670, 41 A.L.R.4th 233].)
V
This is not to say, however, that a prior authorization scheme may not in practice run afoul of federal law. The state cannot employ a prior authorization scheme which has the purpose or effect of noncompliance with federal substantive mandates. If, as a practical matter, an administrative prior authorization scheme unreasonably results in denial of covered care and services to eligible recipients that scheme is in conflict with federal law. For example, a state could not require prior authorization if it refused to provide adequate personnel to allow the scheme to function in a manner consistent with timely provision of such care and services.
If the inadequate quantity or quality of staff for a prior authorization scheme resulted in unreasonable delays or an unreasonably high level of incorrect denial of authorization this could present a violation of federal law. To choose an extreme example, authorization for care and services could be regularly delayed until illnesses for which they are medically necessary had run their course. This would raise a substantial question of compliance with federal mandates. (See, e.g., 42 U.S.C. § 1396a(a)(10) discussed, ante, part II, pp. 990-991; 42 U.S.C. § 1396a(a)(19) [a state plan must assure that covered care and services will be provided, in a manner consistent with simplicity of administration and the best interests of recipients]; 42 U.S.C. § 1396a(a)(30) [utilization review procedures must be consistent with efficiency, economy, and quality of care].)
Here the original statement of decision contains evidence that may raise serious federal questions. The state admitted that “Because of fiscal shortages, [the state is] forced to operate with less than the full complement of staff reasonably required to process [requests for prior authorization].” The offices which can grant prior authorization are closed weekends, holidays, and evenings. Processing of prior authorization by mail often takes as long as nine to thirteen days. There was evidence that obtaining prior authorization approval by telephone can be a protracted, frustrating ordeal. It is difficult to obtain an open line to prior authorization offices, the transcribers who take incoming calls are unfamiliar with medical terminology, and delay in the process leads to detriment to patients’ health.
*1000I imply no view on the question is there sufficient evidence to condemn the state’s administrative scheme purporting to implement section 14133. In any event, such a finding would not warrant a writ commanding that no implementation or enforcement of section 14133 occur. At most the relief warranted would be a command to cease requiring prior authorization until the defects which raised substantial federal compliance questions were cured. As related, I cannot discern what the unalloyed findings of the trial court would have been regarding such compliance questions. Moreover, changes in the situation as a result of an invalidation of sections 14133.3 and 14059.5 and changes attributable to the passage of time and the possible effects of other unknown developments would render it unwise to attempt to reform the judgment at the appellate level as pertains to aspects beyond the invalidation of those statutes.
I would affirm the judgment insofar as it orders issuance of a peremptory writ commanding the state not to implement or enforce Welfare and Institutions Code section 14133.5 and would modify it to include Welfare and Institutions Code section 14059.5 within this proscription and as so modified affirm it. In all other respects I would reverse the judgment for further proceedings.
A petition for a rehearing was denied January 7, 1987, and the petition of plaintiffs and appellants for review by the Supreme Court was denied April 2,1987. Mosk, J., Broussard, J., and Kaufman, J., were of the opinion that the petition should be granted.
One line of case law implicitly or explicitly assumes that all medically necessary services must be provided. (See, e.g., Pinneke v. Preisser (8th Cir. 1980) 623 F.2d 546, 548, fn. 2, medical necessity is the standard for mandatory coverage.) Another line of case law assumes that the state is free to impose limitations on coverage which are premised on the perceived degree of medical necessity. (E.g., Curtis v. Taylor (5th Cir. 1980) 625 F.2d 645, 652.) In both lines the reasoning about the statutory meaning of the medical necessity is contaminated and confused by extraneous threads such as the role of the physician in the adjudicative question of existence of medical necessity and “discrimination” against particular illnesses prohibited under federal regulations. The closest case to this is Medical Soc. of State of N.Y. v. TOIA (2d Cir. 1977) 560 F.2d 535, but that case unaccountably treats the statutory reading question as one of fact and remands for trial. The law reviews are of some help but more for marshalling authority than resolution of the problem. (See Gosfield, Medical Necessity In Medicare and Medicaid: The Implications of Professional Standards Review Organizations (1978) 51 Temple L. Q. 229 (hereafter Medical Necessity); Note, State Restrictions on Medicaid Coverage of Medically Necessary Services (1978) 78 Colum.L.Rev. 1491.) Since neither the case law nor secondary authorities provide an appropriate analytic base I merely note them here as an aside.
The Secretary of Health and Human Services is given general authority to promulgate rules and regulations regarding Medicaid that are “not inconsistent” with the statute and necessary to the efficient administration of the functions with which he is charged under the statute. (42 U.S.C. § 1302.) As to certain matters the secretary is given substantive authority to prescribe standards, e.g., standards for income and resources to be considered available to recipients under 42 United States Code section 1396a(a)(17)(B). There is no indication in the statute that the secretary has been assigned substantive authority to prescribe standards regarding the content of minimum benefit requirements of the mandatory categories of care and services under section 1396a(a)(10). Hence, even if the secretary had promulgated a regulation purporting to govern such matters and inconsistent with my reading of the statute, the regulation would be subject to review as an administrative interpretation. It would not be accorded the special deference accorded administrative rules promulgated under a grant of delegated legislative authority. (See 2 Davis, Administrative Law Treatise (2d ed. 1979) §§ 7:8, 7:13.)