MILDRED E. TINKHAM, conservatrix, vs. DEPARTMENT OF PUBLIC WELFARE & another. [Note 1]

DREBEN, J. The issue before us is whether the Department of Public Welfare (DPW) is required to discard a method of calculating "the costs . . . incurred for medical care" under 42 U.S.C. Section 1396a (a) (17) (1976), which was authorized by a 1974 directive of the Department of Health and Human Services [Note 2] (HHS), and adopt a

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more costly procedure prescribed by a 1976 directive of HHS.

In this action for declaratory and injunctive relief and also for review, under G. L. c. 30A, Section 14, of a decision of the DPW denying the plaintiff's eligibility for Medicaid payments, the trial judge upheld the DPW and refused to order it to follow the calculations prescribed by the 1976 directive which was contained in HHS' Medical Assistance Manual. [Note 3] He ruled that the 1976 provision "contemplated a material and substantial change from existing policy" and was "of no effect because it was not promulgated pursuant to the notice and comment provisions" of the Administrative Procedure Act (A.P.A.), 5 U.S.C. Section 553 (1976). For the reasons stated in this opinion, we agree with the trial judge that the provision of the 1976 manual is not binding on the DPW.

1. The statutory and regulatory provisions. Before discussing the 1974 and 1976 directives of HHS, we shall examine briefly the general framework of Medicaid and the specific statute and regulations which the two directives implement. Medicaid is a Federal-State cooperative program which was created in 1965 under Title XIX of the Social Security Act, 42 U.S.C. Sections 1396 et seq. (1976 and Supp. III 1979). Participation by the States in the program is entirely optional, but once a State chooses to participate, it must comply with the requirements of Title XIX. Harris v. McRae, 448 U.S. 297, 301 (1980). Participating States submit their plans [Note 4] for approval to HHS (42 U.S.C. Section 1316

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[a][1] [1976]), and if approved, the Federal government will pay a specified percentage of "the total amount expended . . . as medical assistance under the State plan." 42 U.S.C. Section 1396b (a) (1) (1976). Harris v. McRae, supra at 308. A State plan will be approved if it complies with the applicable "statutes and regulations." 45 C.F.R. Section 201.3(d) (1980). [Note 5]

A State which adopts a Medicaid program must provide assistance to the group referred to in the regulations as the categorically needy [Note 6] (42 U.S.C. Section 1396a[a][10][A] [1976]), and may also provide benefits to a group known as the medically needy. [Note 7] 42 U.S.C. Section 1396a(a)(10)(C) (1976). Massachusetts has elected to include both groups. General Laws c. 118E, Section 1. See generally Moe v. Secretary of Admn. & Fin., 382 Mass. 629, 633-634 (1981). The medically needy have income and resources above the limits of the categorically needy, and only receive benefits after they have incurred medical expenses which reduce their income below a prescribed level. The determination of that reduction or "spend down" is the core of the present dispute.

The time period for computing income is prescribed by regulation. DPW "must use a prospective period of not more than six months to compute income." 42 C.F.R. Section 435.831(a)

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(1979). However, neither the statute, 42 U.S.C. Section 1396a (a)(17) (1976), [Note 8] nor the regulations promulgated thereunder specify the time period during which medical expenses must be incurred in order to reduce income of a given period. In this connection, we note that there are two sets of regulations which we consider. Although the parties have not suggested that the current regulations which were first issued in 1978 do not apply to the plaintiff's claim, we assume, without deciding, that the regulations in force at the time of the eligibility period under dispute are applicable to that claim. [Note 9] For purposes of declaratory (and

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injunctive) relief, however, we look to the current regulations. [Note 10] As will become evident in the course of this opinion, we consider that the regulations in effect both in 1977 and in 1978 are consistent with the position of the DPW on "spend down".

2. The 1974 directive and the 1976 manual instruction. On August 20, 1974, HHS issued a directive requiring States to submit a form, "Attachment 2.6-C," if their State plans included the medically needy. The directive contained an explanation of the various items on the form including a discussion of the computation of excess income and medical expenses.

An examination of the relevant portions of the 1974 HHS directive leads us to conclude, as did the trial judge, that the present method used by the DPW to compute spend down was "specifically authorized" by the 1974 directive. [Note 11] We

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find it unnecessary to give a detailed explanation of the DPW method and merely note that it provides that excess income for a given period (six months forward and three months back) can only be offset by medical expenses incurred during the same period. We also conclude that the Massachusetts State plan, as last approved by HHS in 1978, contemplated that method of spend down. [Note 12]

It does not appear in the record whether the 1974 directive was part of the medical assistance manual of HHS, but it is clear that the "Action Transmittal" of July 8, 1976, became Section 4-30-30 of the manual. The manual was first issued to participating States in 1971, and is described therein as an "official medium by which the Medical Services Administration issues guides and procedures to States." It "clarifies, explains, and expands upon the meaning of the Regulations and the provisions upon which they are based." In a paragraph headed "Relationship to Regulations," the following statement is made: "The material contained in this Manual is consistent with the Regulations on the subjects and contains no new or different requirements from those in the Regulations" (emphasis supplied).

"Action Transmittal" of July 8, 1976, containing Section 4-30-30, was sent to the States as a new insert for the manual and was not published in accordance with 5 U.S.C. Sections 552(a)(1) and 553(b) (1976) of the A.P.A. Section 4-30-30 provides, with certain qualifications not here applicable,

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that "any medical expenses which are the current liability of the applicant shall be considered including: (1) unpaid expenses incurred at any time prior to the date of application, providing the applicant remains liable for payment" (emphasis supplied).

We agree with the trial judge that this provision "materially affects Massachusetts' liability under its Medicaid plan." Section 4-30-30 prohibits the DPW from computing spend down under the method sanctioned by the 1974 directive. Medical expenses whenever incurred must be used to reduce income.

3. Effect of the 1976 manual provision. The DPW concedes that HHS has the delegated legislative power under 42 U.S.C. Sections 1302 and 1396a (a)(17) (1976 and Supp. III 1979), see note 8, supra, to fill the interstices of the statute by properly promulgated regulations. [Note 13] Such regulations could set a specific time or even an unlimited time period during which incurred medical expenses could be used to reduce income. We assume that such regulations would be binding on the DPW. However, the Secretary has chosen not to treat the spend down as a "legislative-type rule", see Morton v. Ruiz, 415 U.S. 199, 236 (1974), and has, as we have seen, left the regulations silent on the time when medical expenses must be incurred in order to be considered.

The plaintiff, as does HHS, [Note 14] claims that although HHS did not issue its directive as a regulation pursuant to Section 553,

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HHS was not required to do so. The plaintiff relies on 5 U.S.C. Section 553 (b)(A) (1976), which exempts "interpretative rules" from the operation of Section 553, and urges that Section 4-30-30 is an interpretive rule. She claims that the provision, even if not binding, is entitled to great weight as a directive of the agency administering the statute. The DPW on the other hand, claims that the "interpretive" label placed on the manual provision by HHS is not dispositive, that the provision is a change from prior practice and has substantial impact on the Commonwealth, and that in such circumstances it is not binding because it was not promulgated in accordance with the requirements of 5 U.S.C. Section 553 (1976).

The DPW's position was adopted by the trial court. There is considerable and persuasive authority that if a directive has substantial impact this fact, and not the label placed thereon by the agency, determines whether the safeguards of the A.P.A. are applicable. Courts adhering to this view characterize such a directive as a substantive or legislative rule subject to Section 553. [Note 15] Other courts do not attempt to distinguish between "interpretive" (or procedural rules which are also exempt) and "substantive" rules, but reach the same result by looking at the basic purpose of the

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statutory requirements of Section 553. They hold that, whatever the characterization, the exemption in Section 553(b)(A) does not extend to rules which depart from existing practice and have a substantial impact on the persons regulated. [Note 16]

These authorities and a number of variations thereon [Note 17] show a judicial reluctance to allow an agency, a body which may be insulated from any political accountability, to impose binding rules which materially affect rights or liabilities without an opportunity to gain the benefit of the views of the parties affected. A similar reluctance by Congress led to the passage of Section 553 of the A.P.A. Both are based on considerations of fairness to the parties affected as well as on the premise that a fully responsible and thoughtful decision can only be reached after consultation with or comment by interested persons. Chamber of Commerce v. Occupational Safety & Health Admn., 636 F.2d 464, 470-471 (D.C. Cir. 1980). See Saint Francis Memorial Hosp. v. Weinberger, 413 F. Supp. 323, 329 (N.D. Cal. 1976); Pharmaceutical Manufacturers Assn. v. Finch, 307 F. Supp. 858, 864, 866, 868 (D. Del. 1970). See generally A Functional Approach to the Applicability of Section 553 of the Administrative Procedure Act to Agency Statements of Policy, 43 U. Chi. L. Rev. 430 (1976). The opportunity for comment

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is clearly appropriate here where the party affected is a State agency which itself has considerable expertise in assessing the financial impact of the provision on the State. [Note 18]

In this case, however, we find it unnecessary to hold the provision invalid as applied to the DPW on the ground that it did not comply with A.P.A. requirements. This is so because even if we were to accept HHS' view that Section 4-30-30 is interpretative, and were also to accept that it is not subject to 5 U.S.C. Section 553 (1976) despite its impact, we do not find the provision entitled to such deference as to be binding on the DPW. We may properly reach this conclusion because if a particular agency pronouncement may be lawfully issued without going through the procedure of notice and hearing required for a regulation, that pronouncement "does not have the binding force attributable to a full-blown regulation." Massachusetts Gen. Hosp. v. Rate Setting Commn., 371 Mass. 705, 707 (1977). Cerro Metal Prod. v. Marshall, 620 F.2d 964, 981 (3d Cir. 1980).

The weight to be accorded to an agency judgment "will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Judged by these criteria, Section 4-30-30 can muster little strength. It is a new rule, not one of long standing. It precludes State procedures sanctioned by the prior 1974 directive. See supra, part 2. Moreover, it is not consistent with the avowed functions of the manual, which, as we noted earlier, specifically states that it contains no "new requirements from those in the regulations." If the first (1974) directive was, in accordance with the intent of the manual, merely a clarification of the regulations, the second, which requires a material change in DPW's procedures, cannot be passed off as containing

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"no new requirements." Because of the inconsistency in HHS' position on spend down and because of the use of the manual in a manner contrary to its expressed purpose, we do not accord the 1976 provision "the weight normally given to" an administrative interpretation. Perry v. Commissioner of Corps. & Taxn., 5 Mass. App. Ct. 780, 781 (1977). See General Elec. Co. v. Gilbert, 429 U.S. 125, 141-145 (1976).

In addition, HHS has given no indication of a thorough consideration of the implications of its policy change. To the contrary, the fact that the 1976 provision altered the prior rule without explanation and was adopted without any opportunity for comment by State agencies suggests that it was issued without full information as to its financial and other impact on such agencies. These are matters where the expertise of State officials would be most valuable to an informed judgment by HHS. Cf. Pharmaceutical Manufacturers Assn. v. Finch, 307 F. Supp. at 866; Saint Francis Memorial Hosp. v. Weinberger, 413 F. Supp. at 329.

Nor does the 1976 "interpretation" seem more persuasive than the one of 1974. In the absence of a reason to the contrary, it seems natural to use the same period for computing expenses and income. Neither the statute nor the regulations in effect in 1977 or in 1978 require the interpretation urged by the plaintiff; moreover, the propriety of the State putting a time limit on medical expenses seems authorized by the 1978 regulation. See note 10, supra. For these reasons, without passing on the wisdom of either of the two directives, we hold that the DPW is not bound to discard its previously authorized method and accept the rewritten position of HHS contained in the 1976 manual. [Note 19] See Daughters of Miriam Center for the Aged v. Mathews, 590 F.2d 1250, 1263 (3d Cir. 1978); Cerro Metal Prod. v. Marshall, 620 F.2d at 982. [Note 20]

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The judgment is to be modified to declare that DPW is not bound by the 1976 manual provision, and as so modified is affirmed.

So ordered.