Department of Health & Mental Hygiene v. Lions Manor Nursing Home

Eldridge, J., delivered the opinion of the Court. Maryland Code (1957, 1971 Repl. Vol., 1976 Cum. Supp.), Art. 43, § 42, requires the Department of Health and Mental Hygiene to administer a program, known as the Medical Assistance program, to provide comprehensive medical care for the indigent.

To implement one of the aspects of this program, the statute specifically authorizes the Department to contract with nursing homes for the provision of skilled nursing services for Medical Assistance recipients. Under this program, nursing homes are reimbursed for the services and supplies they provide to patients in one of three ways. (1) A per diem rate or “vendor payment” is paid by the Department to the nursing home as payment ip full for certain, specified items. As of June 1975, these items included services and supplies such as bandages, wheel chairs, special diets and therapy.

The nursing home may not supplement this per diem payment by additional charges to the patient, or any other person, for any of the covered items. (2) A specified group of additional services are not included in the per diem rate but they are covered under the program, and the Department will reimburse the nursing home for these services in addition to the per diem rate. (3) The nursing home may directly charge the patient for items not covered in either of the first two categories. This third category primarily concerns items for personal use and comfort, such as tobacco, private telephone and cosmetics.

Prior to July 1975, this third category included personal laundry. In June 1975, a directive entitled “Nursing Home Policy No. 10” was sent to all nursing home facilities which were then under contract with the Department. This directive announced that, as of July 1, 1975, the services covered by ⁴²⁷ the per diem “vendor payment” would include, among other things, personal laundry. The Lions Manor Nursing Home was one of the facilities then under contract with the Department, receiving $20.70 per day per patient.

Prior to the effective date of the directive, Lions Manor had been charging Medical Assistance patients $2.00 per week for personal laundry services. The directive purported to prohibit Lions Manor from continuing to charge its $2.00 per week fee for personal laundry. Coincident with this increase in services covered by the per diem rate, the per diem rate paid to Lions Manor was increased by $3.20 per day per patient, or $22.40 per week. On November 1,1975, the Department entered into a new contract with Lions Manor, to provide nursing services under the Medical Assistance program.

In pertinent part, this contract obligated Lions Manor: “To accept for payment for supplying ... [nursing services], the Department’s vendor payment now in effect, or as hereafter modified. “1. The vendor payment will be accepted as payment in full for the care of the patient; and “2. No additional charge will be made to the patient, any member of his family, or to any other source.. ..” The Department, on the other hand, agreed, in pertinent part: “A. To pay for such skilled nursing services in the form of vendor payments (in amounts and under conditions determined by the Department) for all . .. [Medical Assistance patients] receiving skilled nursing care .... “E. To give to the Skilled Nursing Home reasonable notice of any impending change in its status or change in payment formula as a participating Skilled Nursing Home.” ⁴²⁸ In January 1976, Lions Manor brought an action against the Department in the Circuit Court for Allegany County for a declaratory judgment. Lions Manor maintained that the July 1 directive issued by the Department is a rule within the contemplation of the Administrative Procedure Act, that it was not adopted in accordance with the statutory rule-making procedures of the Act, and that therefore it is void and could not prohibit Lions Manor from continuing, for the 1975-1976 fiscal year, to charge its Medical Assistance patients for personal laundry.

Lions Manor asked for a declaration that it could continue its charges for personal laundry. The Department, on the other hand, contended that its directive was binding on Lions Manor on either of two grounds: (1) as a determination authorized by regulation, or (2) pursuant to the terms of the contracts between the Department and Lions Manor. Both sides filed motions for summary judgment. The Department attached to its motion the contract between the parties covering the period beginning November 1, 1975.

However, neither party attached the contract covering that portion of the 1975-1976 fiscal year prior to November 1, 1975, and thus the earlier contract is not in the record. The circuit court granted Lions Manor’s motion for summary judgment, and the Department took an appeal to the Court of Special Appeals. Before any proceedings in that court, we issued a writ ofcertiorari. . The Department makes alternative arguments on appeal.

Initially, the Department relies on one of its adopted regulations, COMAR