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Rasulis v. Weinberger

decided: September 9, 1974.

EILEEN RASULIS, ET AL., PLAINTIFFS-APPELLANTS, V. CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT-APPELLEE JAMES J. MCCOY, PLAINTIFF-APPELLANT,
v.
CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT-APPELLEE. HARRY B. LILJESTAM, PLAINTIFF-APPELLANT,
v.
CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT-APPELLEE. MARTIN WEINRICH, PLAINTIFF-APPELLANT,
v.
CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT-APPELLEE. JAMES BABCOCK, PLAINTIFF-APPELLANT,
v.
CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT-APPELLEE. MICHAEL THOMAS, PLAINTIFF-APPELLANT,
v.
CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT-APPELLEE. FLORIAN KRASS, PLAINTIFF-APPELLANT,
v.
CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT-APPELLEE. FREDERICK D. BABCOCK, PLAINTIFF-APPELLANT,
v.
CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT-APPELLEE. WINTON EVANS, PLAINTIFF-APPELLANT,
v.
CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT-APPELLEE. LILLIAN F. RINTZ, PLAINTIFF-APPELLANT,
v.
CASPAR WEINBERGER, SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 70 C 630, 70 C 631, 72 C 2664, 72 C 2529, 72 C 2408, 72 C 2531, 72 C 2530, 72 C 2407, 72 C 2528, 72 C 2409 Honorable Frank J. McGarr, Judge.

Clark, Associate Justice,*fn* Cummings and Tone, Circuit Judges.

Author: Tone

TONE, Circuit Judge.

This civil action was originally filed in 1970 by Eileen Rasulis, the owner and operator of a physical therapy clinic. Subsequently the case was consolidated with the nine similar actions, brought by physical therapists licensed by the State of Illinois, under the Illinois Physical Therapy Act, Ill. Rev. Stat., Ch. 91, § 22.1, et seq. (1973), which are before us in this consolidated appeal. The plaintiffs sought declaratory and injunctive relief against the Secretary of Health, Education and Welfare to prohibit him from giving any force or effect to 20 C.F.R. § 405.1126(c) (1968) insofar as it made plaintiffs ineligible to treat patients in extended care and skilled nursing facilities and receive reimbursement therefor under the Medicare Act. (42 U.S.C. § 1395, et seq.) Identical standards for hospitals (20 C.F.R. § 405.1031) have also been challenged in plaintiffs' brief. The standards for physical therapists in all health care institutions are now consolidated in 20 C.F.R. § 405.1101(q), the text of which, in relevant part, appears below.

On June 25, 1970, the District Court entered a preliminary injunction against enforcement of the regulation, on the ground that the regulation arbitrarily discriminated between physical therapists eligible to treat Medicare patients in hospitals and therapists eligible to treat Medicare patients in extended care facilities. In 1971, the Secretary promulgated an amended version of the regulation which applied across the board the requirements formerly restricted to extended care facilities. The complaints were amended to challenge the amended regulation. After a review of the amended version, the District Court found that the challenged sections were constitutional and in compliance with the Secretary's mandate from Congress, and entered summary judgment for the defendant. This appeal followed.

The regulation under attack establishes professional standards which physical therapists must meet in order to qualify for reimbursements under the Medicare Program. For a hospital or other health care institution to participate in the program, its personnel involved in the treatment of Medicare patients must qualify under the regulation. The standards applicable to therapists in all Medicare services after 1971, in the language of the regulation as it stood at the time of the District Court's decision, were as follows:

"405.1126 Condition of Participation -- Restorative Services --

"(c) Standard; Therapy Services.

"(1) Physical therapy is given or supervised by a therapist who meets one of the following requirements:

"(i) He has graduated from a physical therapy curriculum approved by --

"(a) The American Physical Therapy Association; or

"(b) The Council on Medical Education and Hospitals of the American Medical Association; or

"(c) The Council on Medical Education of the American Medical Association in collaboration with the American ...


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