Opinion
No. 74-2103.
Argued November 20, 1975.
Decided January 28, 1976.
Jonathan A. Weiss, New York City, with whom Patricia Butler, Los Angeles, Cal., was on the brief for appellants. Florence W. Roisman, Washington, D.C., also entered an appearance for appellants.
Robert E. Hauberg, Jr., Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., John A. Terry, Stuart M. Gerson and Robert M. Werdig, Jr., Asst. U.S. Attys., were on the brief for appellee.
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action 74-961).
Before DANAHER, Senior Circuit Judge, WILKEY, Circuit Judge, and VAN PELT, United States Senior District Judge for the District of Nebraska.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
Having found that the issues had been fully briefed and argued on cross-motions for summary judgment and that there were no material issues of fact in dispute, a three-judge court entered judgment for the appellee. American Public Health Association, Inc., co-plaintiff in the district court, has not appealed. The complaint had alleged, as presently pertinent, that 42 U.S.C. § 1396d(a)(B) is invalid as denying equal protection and due process in its proscription of payments with respect to care or services to persons between the ages of 21 and 65 who are patients in institutions for mental diseases.
The members of the court were Circuit Judge Tamm and District Judges Smith and Gesell.
The claims on behalf of tubercular patients were dismissed for lack of jurisdiction.
The present appellant for several years had been suffering from a severe mental disorder and had undergone treatment in New York institutions. Her New York physician recommended that she become, and she was accepted as, a patient in a private non-profit mental hospital, the Delaware Valley Mental Hospital Foundation, in Doylestown, Pennsylvania. New York City and State agencies had declined to pay for her institutional care in the facilities of the private Foundation.
The New York ruling was that the Pennsylvania facility is not part of a general or chronic disease hospital, see 42 U.S.C. § 1396d(a), (b). Compare Legion v. Richardson, 354 F.Supp. 456 (S.D.N.Y.) and discussion in the opinion of the three-judge court at 458; aff'd sub nom. Legion v. Weinberger, 414 U.S. 1058, 94 S.Ct. 564, 38 L.Ed.2d 465 (1973), rehearing denied, 415 U.S. 939, 94 S.Ct. 1459, 39 L.Ed.2d 498 (1974).
Aged 34 when this action was brought, she was within the exclusion of Federal payment for care and services for one who is less than 65 years of age and a patient in an institution for mental diseases.
See 42 U.S.C. § 1396d(a)(16) as to in-patient psychiatric hospital services for individuals under age 21.
Such was the background from which emerged the appellant's claims before the three-judge court.
We have carefully considered the record, the helpful briefs of respective counsel, and the opinion of Judge Gesell writing for the three-judge court in Kantrowitz v. Weinberger, 388 F.Supp. 1127 (D.D.C. 1974). The reasoning there and the conclusions reached by the three-judge court have persuaded us that we must affirm on that opinion.
Judgment accordingly.