MASSACHUSETTS GENERAL HOSPITAL vs. COMMISSIONER OF PUBLIC WELFARE (and three companion cases).

CUTTER, J. Four patients were furnished medical care during the year 1962 by the hospital under public medical care plans mentioned in the margin. [Note 1] In each case special nursing services were required for the patient's proper

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care. Payment to the hospital for the special nursing in each instance was denied by the board of public welfare in the community responsible for the patient. These denials were affirmed by the State department of public welfare on the basis of medical care plans of the department, which provide for a so called all inclusive per diem (AIPD) rate of reimbursement of hospitals. [Note 2]

The department took the view that the special nursing services were an ancillary service included in the per diem rate established under G. L. c. 7, Section 30K. The hospital in each instance received the AIPD rate for each day that each patient was in the hospital, but claimed also to be entitled to reimbursement of its necessary expenditures for special nursing.

In the Superior Court, upon review under G. L. c. 30A, Section 14 (1), the trial judge ruled that the department's decision was "founded upon error of law" and that the AIPD rate did not include special nursing services. No question is now presented or argued concerning the medical necessity of providing special nursing services in each of these cases. We must decide, however, whether reimbursement for such special nursing services is included in the AIPD rate.

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1. Under G. L. c. 118A, Section 1, fourth par. (as amended through St. 1961, c. 615), and under G. L. c. 118D, Section 1 (as amended through St. 1961, c. 127, Section 2), and Section 4 (as amended through St. 1960, c. 659, Section 1), recipients of old age assistance and of assistance to disabled persons, respectively, are entitled to "adequate medical" care or assistance. By G. L. c. 118A, Sections 13-32, as amended, recipients are entitled to "medical assistance" (see Sections 14 and 18, as amended through St. 1960, c. 781, Section 8) which in Section 13 (also as amended through St. 1960, c. 781, Section 8) is defined as including, among other things, "(1) inpatient inpatient hospital ward services . . . (4) physicians' services . . . [and] (6) nursing services." No argument is made, or well could be made, that a recipient of any one of the three types of assistance is not entitled to receive special nursing services when such services are necessary to provide adequate medical care.

2. The department's medical care plan, here applicable, is dated June 1, 1961, and is found in the department's so called State Letter 137, dated July 17, 1961, on p. 13. Under the heading "nursing care," there is no mention whatsoever concerning special nursing services to an aid recipient in a hospital. The somewhat generally expressed plan seems simply to assume, but without saying so, that the AIPD rate includes reimbursement for such services.

The department's State Letter 141, dated January 10, 1962, transmitted revised rate schedules for the medical care plan, which it states "represent all-inclusive in-patient care rendered including drugs and so-called extra services." The AIPD rate listed for Massachusetts General Hospital was $35.92. State Letter 141 appears to have been only a method of incorporating in the department's plan the "certification of all-inclusive per diem hospitalization rates applicable to public assistance patients," dated December 15, 1961, made under Section 30K (see fn. 2, supra), by the then acting commissioner of administration. In this certification, the AIPD rate listed for the Massachusetts General Hospital was $35.92, and it was stated, "The rates are effective for all care rendered to patients on and after January 1, 1962, and they represent all-inclusive in-patient care rendered,

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including most so called extra services. Certain unusual ancillary items such as artificial appliances, eyeglasses and other materials taken home or primarily used after discharge from the hospital are excluded from the all-inclusive per diem. Professional services of optometrist, dentist, chiropodist, etc. provided to patients of [p]ublic [m]edical [i]nstitutions are excluded from the all-inclusive per diem. The rates do not include whole blood furnished or special duty nursing services" (emphasis supplied).

The department in effect argues that, in excluding "special nursing services" from the AIPD rate, the commissioner of administration disregarded the provision of Section 30K (see fn. 2, supra, at point [B]) that, in determining "such all-inclusive charges and costs, charges for and costs of ancillary services shall be included." We think this position is untenable. The director of hospital costs and finances is directed by Section 30K (see fn. 2, at point [A]) to certify certain costs and charges to the commissioner of administration. The statute defines these in very general terms. The director is required (see fn. 2, at point [C]) to act in accordance with a uniform system of hospital accounting, which does not appear in these records. [Note 3] The commissioner of administration, upon receiving the director's certification, is entitled to follow general hospital custom or experience in determining what are to be regarded as "ancillary services" and he for good reason may treat certain items of expense not frequently encountered as not within the customary "hospital costs or charges made to the general public" for "public ward accommodations." (See fn. 2, at point [D]; see also point [A]). In any event, the commissioner has done so with respect to special nursing services and it is obvious that hospitals have relied upon his action. The

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records contain no evidence upon which it could be found that the action of the commissioner of administration was not justified, nor do they show that payments by the hospitals for special nursing services were taken into account in computing the AIPD rate.

The trial judge correctly ruled that there was error of law in the decisions of the department. [Note 4] We hold that special nursing services need not be included as ancillary services within the AIPD rate.

Each final decree is to be modified to provide that the department's decision is reversed and that the case is remanded to the department with directions to reverse the decision of each local board and to take other appropriate action consistent with this opinion. As so modified each final decree is affirmed.

So ordered.