APPEAL FORM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 76-1622
Before SEITZ, Chief Judge, STALEY and HUNTER, Circuit Judges
This appeal requires us to determine whether the Secretary of Health, Education and Welfare (the Secretary) properly revised the southeastern Pennsylvania Health Service Area under the National Health Planning and Resources Development Act of 1974, 42 U.S.C. §§ 300k et seq. The District Court held that the Secretary had not complied with statutory requirements before redesignating a five-county area in southeastern Pennsylvania and granted summary judgment for plaintiffs,*fn1 enjoining the Secretary's revision of the area. The Secretary has not pressed an appeal, but the City of Philadelphia, which intervened as a party defendant in the District Court, urges reversal of the order. Although the District Court held that the Secretary was required to consult certain designated entities before formalizing the revision, we find instead that when a redesignation request is made by a state governor, the governor must initiate the consultations. Since the plaintiffs submitted an affidavit, not contradicted by the Secretary, that states that the consultation procedure was not followed by the governor, we find that the Secretary was without authority to make the redesignation and affirm the grant of summary judgment on this ground.
The National Health Planning and Resources Development Act (the Act) creates a statutory structure by which state and area-wide planning for health care distribution can be effectuated and coordinated. The Secretary of H.E.W. is charged with the implementation of the Act, in conjunction with state and local health planning officials. 42 U.S.C. § 300 l.
One of the purposes of the Act is to delineate geographical areas (Health Service Areas) within which a cetral agency (Health Systems Agency) can function as a coordinating body. The Agency is responsible for providing access to health care for the area residents, restraining the rising costs of providing health care, and maximizing available funds for health care by avoiding duplication of medical facilities within the area. Id. § 300 l- 2(a). The Secretary is empowered to designate the geographical boundaries for the Health Systems Areas, based on the recommendations of the governor of each state. Prior to communicating his recommendation to the Secretary, the governor is required by the Act to consult with the officers and agencies of the political subdivisions within the state, the state health planning agency, entities within the state which have established regional, metropolitan, or local health care plans, and other qualified regional medical programs within the state. Id. § 300 l (b)(2).
Once the Secretary has designated a Health Service Area, he remains under a duty to review the appropriateness of the area's boundaries, and to act to revise the boundaries if they no longer meet the population and resource availability requirements of section 300 l (b)(4). Further, a state governor or Health Systems Agency can request a redesignation. Id.
Pursuant to this statutory framework, the Secretary sent letters seeking recommendations from the governors of each state concerning the initial designation of Health Service Areas. On May 3, 1975, Governor Shapp of Pennsylvania proposed an eight-county area for southeastern Pennsylvania and the adjacent part of southern New Jersey. Before the Secretary made his designation, the three New Jersey counties were withdrawn from the proposed area, leaving the five Pennsylvania counties - Philadelphia, Delaware, Chester, Montgomery, and Bucks - to comprise the revised Health Systems Area. This area was approved by the Secretary as of September 2, 1975, the date of publication of the designation in the Federal Register. 40 Fed. Reg. 40306, 40313 (Sept. 2, 1975).
On December 22, 1975, Governor Shapp requested that the Health Service Area established by the Secretary be divided into three separate areas for the purpose of the Act, one area including Bucks and Montgomery Counties, one comprised of Chester and Delaware Counties, and the third encompassing only Philadelphia County. The Secretary approved the request for the "two-two-one" format and this designation was published in the Federal Register on June 1, 1976. 41 Fed. Reg. 22119 (June 1, 1976).
Plaintiffs HSA Steering Committee and RCHPC brought suit to enjoin the Secretary from implementing the revised boundaries for separate Health Service Areas in the five-county region. They allege that the action by the Secretary and Governor Shapp constituted a requested redesignation, an action which required certain consultations pursuant to section 300 l (b)(4) with the local health service entities as a precondition to its effectiveness. The Secretary moved for dismissal of the plaintiffs' suit, or in the alternative for summary judgment. The plaintiffs filed a cross-motion for summary judgment. The City of Philadelphia was granted leave to intervene as a party defendant before oral argument on the motions.
The District Court denied the Secretary's motions and granted summary judgment for the plaintiffs, enjoining the Secretary from redesignating or revising the original five-county area unless such a revision was in full compliance with the procedures mandated by the Act. The Court held that in this case, the Secretary was required to consult with the health planning entities referred to in section 300 l (b)(4) before he could lawfully redesignate the five-county area into the two-two-one format. Determining that RCHPC, one of the entities required to be consulted before a redesignation ...