reasoning that the administrative construction was irrelevant because the meaning of the regulation was so obvious
How later courts described this case
- reasoning that the administrative construction was irrelevant because the meaning of the regulation was so obvious
- rejected interpretation that unit must provide care identical to that provided in recognized special care units but required that the unit provide comparable care — court held unit was closer to special care unit than to routine care and therefore should be considered a special care unit
- care need not be identical but should be comparable
Written by the judges who cited it.
The opinion
HARLINGTON WOOD, Jr., Circuit Judge,
dissenting.
The majority opinion almost persuades me, but not quite, so I respectfully dissent.
The regulation in effect in 1977 and 1978 and at issue provided that in order to be considered a “special care inpatient hospital unit”
[T]he unit must be in a hospital, must be one in which the care required is extraordinary and on a concentrated and continuous basis and must be physically identifiable as separate from general patient care areas. There shall be specific written policies for each of such designated units which include, but are not limited to burn, coronary care, pulmonary care, trauma, and intensive care units but exclude post-operative recovery rooms, pos-tanesthesia recovery rooms, or maternity labor rooms.
42 C.F.R. § 405.452 (d)(10) (1979).
The majority considers the regulation’s six criteria, but the examples given in the regulation cannot be ignored either, “burn, coronary care, pulmonary care, trauma, and intensive care units.... ”
The Hook Physical Rehabilitation Center, no matter what good service it performs, does not qualify under that regulation. The supervisor of the unit describes the unit as designed “to bring the person to the highest level of function” consistent with the patient’s disability, illness or injury. *378 Part of the staff function is to “push” patients out of bed to perform physical tasks. Recreational therapy is available. Some patients are encouraged to swim, bowl, play basketball, bingo, and even take field trips to restaurants. A washer and dryer are provided for patient use. Occasionally patients are furloughed home on weekends, but during that time receive no nursing care from the unit.
Thus it can be seen that unit treatment is not always concentrated nor continuous and does not fall generally within the same class as the examples given in the regulation. In White Memorial Medical Center v. Schweiker, 640 F.2d 1126 (9th Cir.1981), the Ninth Circuit Court of Appeals held:
Section 405.452(d)(10) is an ejusdem gen-eris regulation. It authorizes additional payments for “Intensive care units, coronary care units, and other special care in-patient hospital units.” In describing such units, the regulation states “. .. such designated units [shall] include, but are not limited to burn, coronary care, pulmonary care, trauma, and intensive care units .... ” The standard rule of construction of an ejusdem generis statute is that the general language refers only to objects similar in nature to those objects enumerated by the specific words. (Citations omitted.)
When the regulation was promulgated, the Secretary followed the standards and principles used and accepted by the hospital industry. The Joint Commission on Accreditation of Hospitals defined a “special care unit” as “[a]n appropriately equipped area of the hospital where there is a concentration of physicians, nurses and others who have special skills and experience to provide optimal medical care for critically ill patients.” The hospital industry itself would not have considered the Hook Center as qualifying.
Later in 1980, the Secretary amended the regulation. The majority views the amendment as adding new requirements. However, at that time the Secretary in stating the necessity for the amendment, 45 Fed. Reg. 54,757 (1980), explained that HEW always had maintained and intended that only those units would qualify which furnished a level of care equivalent to intensive care. It was further explained that the various court and administrative decisions interpreting the regulation as originally written reflected a lack of uniformity of understanding as to what constituted a special care unit. Consequently the new amendment was necessary to define more clearly what special care units had always been intended to constitute.
In any event, as I do not believe that field trips to restaurants and home furloughs meet the test, I would not quarrel with the Secretary’s interpretation and application of the regulation.