Full opinion text
OPINION CLARY, Senior District Judge. This is a class action brought under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and (4) seeking injunctive and declaratory relief pursuant to 28 U.S.C. § 2201 and § 2202 against the State of Texas and its Department of Public Welfare for their alleged failure to comply with the provisions of the Social Security Act of 1935, 42 U.S.C.A. §§ 1302, 1351 et seq. and 1396 et seq. and the regulations promulgated thereunder, 45 C.F.R. 249.10(a)(5) in the operation of the state Medicaid program (Title XIX). The jurisdiction of this Court is unchallenged. Plaintiffs allege in this case of virtually first impression that the State of Texas has failed to promulgate a “state plan” for medically necessary transportation for the recipients of Medicaid in conformity with 42 U.S.C.A. supra and 45 C.F.R. supra and the named plaintiff alleges that, as a result, he, individually, for a period of years has lacked such transportation to providers of necessary medical treatment. Although the plaintiffs do not so allege, such lack of compliance with the applicable Federal law would also be in violation of Article VI of the Constitution, the Supremacy clause. The named plaintiff further seeks retroactive benefits for himself. Ancillary relief is also sought to declare that the dismissal for being out of time of the named plaintiff’s administrative appeal from the Department’s denial of transportation violates the Due Process Clause of the Fourteenth Amendment, the Social Security Act, 42 U.S.C. 139.(a) (3), the regulations promulgated thereunder, 45 C.F.R. § 205.-10(a) (3) (ii), and the Department’s own Administrative Procedures Handbook, Section 1212 and the Texas Medical Assistance Act of 1967, Vernon’s Tex. Rev.Civ.Stat.Ann. art. 695j-l, Sec. 9. Injunctive relief is also sought on behalf of the alleged class of those persons who complain of Department denials of financial or medical benefits of a continuing nature and whose complaints are similarly dismissed for being out of time. The case was tried upon a stipulated set of facts incorporating the named plaintiff’s factual allegations in his pleadings, the attached exhibits, the defendant’s answer and the affidavit and accompanying exhibits of defendant Vowell, the deposition of defendant Zalaznick and the exhibits attached to the stipulations. No witnesses were called. Nevertheless, since the central question in this case is the proper interpretation of the regulations administered by the Department of Health, Education and Welfare (hereinafter HEW), this Court has followed the command of the Supreme Court in Rosado v. Wyman, supra, 397 U.S. at 407, 90 S.Ct. 1207, and has asked HEW to lend its expertise and to file a Brief of Amicus Curiae which has been so submitted to the Court. I. STATEMENT OF THE CASE The named plaintiff, Benjamin Edward Smith, 24 years old, has been a victim of spastic cerebral palsy (Stipulation 3) since birth and has been a recipient of categorical assistance, Aid to the Permanently and Totally Disabled (APTD) (Stipulation 2), under the Title XIX Medicaid Program since April 3, 1969. The plaintiff has been a ward of the state since he was two years old (April 15, 1953) (Stipulation 6); he has no family and no resources other than those provided by the State (Stipulation 4). He lived entirely in various foster homes until 1969 when he reached the aid requirement for Medicaid and since then he has lived entirely in various nursing homes and hospitals (Stipulation 7). Benjamin Edward Smith is totally disabled. He is confined to a wheelchair —which he cannot operate himself. His doctor describes him as requiring “total care” (Stipulation 11): He is palsied to the extent that he can neither walk, feed, nor dress himself- — nor perform any other normal daily functions without assistance (Stipulation 9). Nor, apparently, can he speak without difficulty. In addition to his primary illness, plaintiff Smith suffers from numerous secondary including chronic peptic esophagitis, disphagia, and a neurogenic bladder which has required the construction of an artificial bladder (Stipulation 10). The complexity and severity of his disorders is of such a magnitude that no single doctor or clinic is capable of treating him. His visits to doctors and clinics require transportation at least three (3) days a week (see attached chart — Appendix I — stipulated to by the parties) in addition to emergency transportation for recurrent urinary and ear problems. Consequently, the gravamen of the named plaintiff’s complaint is that “ . . . The State Department of Public Welfare is unable to assure the availability of transportation of plaintiff to and from the providers of medical services.” (Stipulation 35; see also Stipulation 36). The plaintiff, for example, requires visits to rehabilitation therapy twice a week; to the Gastroenterology Clinic once a month; to the Orthopedic Clinic once a month; to the Hand Clinic once a month; to a private urologist at least once a month. The combined trips total somewhere between twelve-fifteen trips per month excluding emergencies and visits to the Hand Clinic and Adult Neurology Clinic scheduled every three months. It has been stipulated that each of these treatments requires transportation to and from (Stipulation 13), and we also take judicial notice that the day of the house call is long since gone. Moreover, it has been stipulated that the named plaintiff requires some kind of transportation, e. g., ambulance, van, or truck with an hydraulic lift, that would allow him to remain in his wheelchair or be carried by litter (Stipulation 14). It has further been demonstrated that since 1970 the State has provided ambulance service on a total of four occasions. Benjamin Smith’s total monthly income of $25.00 from his “Personal Needs” allowance provided by the State is insufficient to pay for even one ambulance trip per month (Stipulation 15) (ambulance rates are $40.00 per .round trip plus $10.00 per hour waiting time — (Stipulation 29) even if such an expenditure by a welfare recipient were permissible under the Social Security regulations which it may not be anyhow. Moreover, the only kind of transportation which plaintiff Smith can afford- — • taxicabs — is both too little (he can only afford one or two taxi trips per month (Stipulation 16); too inadequate (he cannot remain in his wheelchair but must be “lifted in and out of taxicabs like a lifeless manikin” in his lawyer’s chilling words); & too dangerous (one taxicab driver broke the plaintiff’s foot by catching it in his wheelchair as he was lifting the plaintiff in and out of the cab); and, finally, not even then available with some degree of assurance, for some drivers upon observing the plaintiff’s plight have refused to permit him in their cabs. We must now turn to the transportation capability of plaintiff Smith’s friends and of volunteer organizations, as the above cited Medical Assistance Manual MSA-PRG-17, “Transportation of Recipients” id., mandates that the states are to hold down the costs of medical transportation of the needy by the utilization of volunteer resources whenever possible: “Although the State has an obligation to assure that transportation will be available for recipients to and from medical care, it also has an obligation to assure that payment is made only where transportation is not otherwise available. If neighbors, friends or voluntary organizations have been providing a service it is reasonable to expect them to continue except in the face of markedly changed circumstances or evident hardship.” “Implementation of Regulation; D. Administrative Controls.” This issue has, however, been expressly settled by stipulation. Stipulations 31-35 provide a summary of the volunteer efforts and corresponding failures to transport the named plaintiff to and from his medical providers. Personal friends, Red Cross, VISTA, F. I.S.H., nursing homes, the Easter Seal Foundation and other volunteer agencies have all been tried and individually and collectively, have been found wanting. Nor, apparently, are the hospital personnel (and one would assume the clinic personnel as well) prepared to undertake this task. The Department’s own caseworkers were unable to obtain regular transportation for plaintiff Smith and in the words of the State Appeals Analyst who dismissed his appeal, “he [the caseworker] ran up against a blank [sic] wall in his attempt to obtain transportation.” Similarly, the plaintiff’s attorneys and their staff attempted and failed to obtain the necessary transportation. Finally, the plaintiff’s doctors appear to be gravely concerned with his transportation difficulties as having a direct and causally injurious effect upon the course of his medical treatment. Dr. Kenneth B. Washburn of the University of Texas Medical School writes: “The greatest problem . . . for this patient has been the inability to carry through with a complete program due to transportation difficulties.” (emphasis added). Dr. Charles L. Simpson also of the University of Texas Medical School and the Bexar County Hospital District writes of the plaintiff: “He appears to be well motivated and very interested in his occupational and physical therapy but has a great deal of difficulty with transportation to and from the hospital as well as transportation for clinic visits and emergency room visits when necessary. He presently has to pay for transportation from his very limited resources and due to his inability to attend therapy regularly his difficulty with contractures is accelerating rapidly ... I realize that Ben’s rehabilitation potential is very limited, but his visits to physical therapy and occupational therapy are one of the few things that Ben looks forward to . I only ask that you seriously consider him for any aid which you can possible give to this deserving and tremendously unfortunate person.” (Dated September 4, 1970). The other letters attached to the Complaint from Benjamin Smith’s doctors are all powerful cumulative testimony of this man’s extreme medical needs and the necessity of transportation to remedy these needs. Nevertheless, after all the transportation efforts has failed, the Department of Public Welfare still refused to provide plaintiff Smith with the transportation appropriate and necessary for his medical condition, the named plaintiff requested a formal hearing within the Department. His request was received by the Department on February 8, 1972 (Stipulation 37) and an Administrative Hearing was held on March 14, 1972 with defendant Zalaznick assigned as the hearing examiner and Appeals Analyst (Stipulations 38 and 39). At the hearing on March 14, “the evidence presented . . . demonstrated the medical necessity for the requested transportation” (Stipulations 40 and 41), but the plaintiff Smith’s appeal was dismissed on the procedural grounds that he “had not filed his appeal within 60 days of that date when the State Department of Public Welfare first failed to provide the requested transportation.” (Stipulation 43). The instant litigation was thereafter commenced on behalf of the named plaintiff and the class of plaintiffs. The class is defined as all those needy individuals in the State of Texas, receiving categorical assistance from the State Department of Public Welfare, who presently and prospectively need to obtain transportation to and from the providers of necessary medical services. By failing properly to formulate and implement a State Medical Assistance plan with regard to transportation, the State has acted on grounds generally applicable to the class under Rule 23(b)(2) and the relief sought and granted is of an injunctive and declaratory nature, Advisory Committee’s Note, 39 F.R.D. 98 at 102, and therefore the case does not fall within the ambit of the notice requirements of Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732, which pertains to Rule 23(b) (3) actions, at 165, 172-174, 176-177 n. 14, 94 S.Ct. at 2145, 2150, 2152 n. 14. The defendants have nowhere challenged the existence of the class and, in fact, have conceded their inability to provide the necessary medical transportation to “all welfare recipients in this connection”; and we therefore determine this matter to be the proper form of litigation to be certified as a class action under Rule 23. II. STANDING Defendants have challenged the plaintiffs’ standing to seek judicial review of this matter and, by inference, have also alleged their failure to exhaust administrative remedies. The defendants assert that “HEW is the proper forum to which the plaintiff’s complaint should be addressed as “the Secretary [of HEW] is designated to administer Federal funds and to asure that State compliance with program regulations is maintained.” A similar contention was raised and decisively rejected by the Supreme Court in Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). This position was further explicated and broadened in NWRO v. Finch, 139 U.S.App.D.C. 46, 429 F.2d 725 (1970) which quickly followed Rosado. We hold these cases entirely dispositive of the issues before us. In Rosado, Mr. Justice Harlan writing for the majority pointed out the patent futility of an approach such as that advocated by the defendants for the simple reason that there are no administrative remedies within HEW for welfare recipients to invoke let alone exhaust: “Neither the principle of exhaustion of administrative remedies nor the doctrine of primary jurisdiction has any application to the situation before us. Petitioners do not seek review of an administrative order, nor could they have obtained an administrative ruling since HEW has no procedures whereby welfare recipients may trigger and participate in the Department’s review of state welfare programs. Cf. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); K. Davis, Administrative Law § 19.01 (1965); L. Jaffe, Judicial Control of Administrative Action, 425 (1965).” Id., 397 U. S. at 406, 90 S.Ct. at 1215 (Emphasis added). He went on to write that the Court has: “ . . . rejected the argument that a federal court is without power to review state welfare provisions . Congress has lodged in the Department of HEW the power to cut off federal funds for non-compliance with statutory requirements . [citing to King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968)] implicitly rejected the argument that the statutory provisions of HEW review of plans should be read to curtail judicial relief.” Id. at 420, 90 S.Ct. at 1222. 'It should be noted that Rosado further teaches us, id., 397 U.S. at 406-407, 90 S.Ct. 1207, that the district courts are to seek the opinion of the Department of HEW when faced with issues such as those presented in this case. This we have done, and nowhere in the Brief of Amicus Curiae submitted by HEW is there a word that indicates any challenge to the right of the plaintiffs to bring this action. Certainly, if HEW believed that its authority and that of its Secretary were being contravened by the plaintiffs’ litigation, the brief would have addressed itself to this issue rather than to the merits themselves. The Court of Appeals for the District of Columbia (per Wright, J.) in NWRO v. Finch, supra exhaustively treated the question of standing in welfare cases. The court there reviewed the principles of determining standing as enunciated in Association of Data Processing Service Organizations v. Camp (hereinafter Data Processing), 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) and Barlow v. Collins (hereinafter Barlow), 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). “ . . . standing for purposes of judicial review need not flow from any express Congressional grant. In Association of Data Processing Service Organizations, Inc. v. Camp [citation] and Barlow v. Collins [citation] . standing to challenge administrative action was found to turn on a flexible, liberalized formula in which two conditions are central: (1) whether the plaintiff alleges that the challenged action has caused him injury in fact economic or otherwise and (2) whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute in question.” Citing Data Processing, supra, 397 U.S. at 152-153, 90 S.Ct. 827. Id., 429 F.2d at 733. The third requirement would be one of Congressional intent; id.: “ . . . The Court must decide if Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion.” Citing Barlow, supra, 397 U.S. at 165, 90 S.Ct. 832. The Court readily found that the plaintiff welfare recipients fit all three requirements. First, as to “injury in fact, economic or otherwise”, being the recipients of welfare benefits, “they no doubt have the requisite ‘personal stake in the outcome’ of the suit — an economic stake.” Id., 429 F.2d at 734 citing Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L. Ed.2d 663 (1962). Secondly, as to the “zone of interest” requirement, “the purposes of the Social Security Act make clear that appellants, if qualified as welfare recipients . . . fall within the class of persons intended as beneficiaries of that statute.” Id., 429 F.2d at 735. Thirdly, there is the issue of an express or implied precluding of judicial review by Congress or the relegation of the challenged action to agency discretion. The Court in NWRO found (a) “no language in the Social Security Act expressly prohibiting welfare recipients’ pursuit of review,” Id. (b) no implied exclusion of welfare recipients, as such an implication according to the tests enunciated in Barlow, supra, 397 U.S. at 166, 90 S.Ct. 832 and in Abbott Laboratories v. Gardner, supra (cited in Barlow) is an “exception [to the rule] which must be demonstrated,” id., and (c) finally, nonreviewability will be found “ ‘only upon a showing of clear and convincing evidence’ of legislative intent.” (citing Abbott Laboratories, supra). We hold that in this regard the case at bar is all fours with NWRO v. Finch. The named plaintiff Smith and the class plaintiffs explicitly fit the description of the successful plaintiffs in NWRO who “as recipients of benefits of welfare assistance programs ... no doubt will have the requisite ‘personal stake in the outcome’ of the suit.” Id., 429 F.2d at 734. The second requirement that the plaintiffs be within the zone of interests protected by the statute is easily met for the category of plaintiffs — welfare recipients — is identical in both cases and the statute sued under — the Social Security Act of 1935 and amendments — is also identical. Mr. Justice Harlan’s words in Rosado seem particularly apposite in this regard: “We are most reluctant to assume Congress has closed the avenue of effective judicial review to those individuals most directly affected by the administration of its program. Cf. Abbott Laboratories v. Gardner [citation].” Id., 397 U.S. at 420, 90 S.Ct. at 1222. Finally, defendants argue that since the instant ease involves the interpretation of an administrative rather than a statutory provision that it in some way can be distinguished from the above cases. Defendants cite no authority for this proposition for the simple reason that none exists. Beginning with King v. Smith, supra, 392 U.S. at 317, 88 S. Ct. 2128 the Supreme Court has held that there can be no question as to the authority of the regulations promulgated by HEW in this area. The law itself speaks to the issue in 42 U.S.C. § 1302 with its provision that the Secretary of HEW shall make and publish such rules and regulations that are not inconsistent with the Social Security Act and which may be necessary to the efficient administration of the act. To conclude, we find the Court's ruling in Rosado the dispositive law as applied to this case, and we also find compelling its language as to the important policy considerations involved in affording access to the courts for welfare recipients seeking judicial review of alleged errors in the administration by the states of the Social Security program: “ . . . We find not the slightest indication that Congress meant to deprive federal courts of their traditional jurisdiction to hear and decide federal questions in this [Social Security] field . . . . It is, on the other hand, peculiarly part of the duty of this tribunal, no less in the welfare field than in other areas of the law, to resolve disputes as to whether federal funds allocated to the States are being expended in consonance with the conditions that Congress has attached to their use.” Id., 397 U.S. at 422-423, 90 S.Ct. at 1223. III. STATE PLAN REQUIREMENTS A. BACKGROUND The origins of the present program can be found in the early New Deal cornmitment to assist the states in paying the medical expenses of the needy. CCH Medicare and Medicaid Guide, j[ 14,020, p. 6035. The program grew consistently through the next three decades, id. at 6036 when it became a priority of Lyndon Johnson’s Great Society programs. In his Special Message to the Congress on the Nation’s Health in February, 1964 and his State of the Union Message in 1965, he emphasized medical care for the needy as a keystone of his domestic legislative program. In turn, Congress passed both Medicare and Medicaid and President Johnson signed them into law on July 30, 1965, as Title XIX to the Social Security Act. Title XIX authorized a cooperative Federal-State program (“cooperative Federalism”) under which certain medical services would be made available to welfare recipients at no cost to them. The State of Texas began its participation in the Medicaid Program in 1967 with passage by the Legislature of the Texas Medicaid Assistance Act. Administrative responsibilities for the new program were placed with the State Department of Public Welfare. Under Title XIX, the participating State obtains matching Federal funds to extend medical and financial assistance to certain categories of needy persons such as aid to the permanently and totally disabled (APTD). In order to obtain these matching funds, the Social Security Act requires, 42 U.S.C.A. § 1396a et seq., the state to formulate a “state plan” for the administration of the various programs in accordance with the applicable provisions of the Social Security Act and the regulations promulgated thereunder. The specific regulations which are at issue in the case at bar are set forth as follows at 45 C.F.R. 249.10(a) (5): “(a) State Plan Requirements. A State plan for medical assistance under Title XIX of the Social Security Act must: (5) . . . specify that there will be provision for assuring necessary transportation of recipients to and from providers of services and describe the methods that will be used.” HEW has interpreted the application of the above regulation in “Program Regulation Guide,” MSA-PRG-17 issued June 6, 1972. & The “Program Regulation Guide” further points out that the problem of medical transportation for the needy as an area of Federal concern has been recognized for some time prior to the inception of the present programs: “Under provisions of the Social Security Act prior to the enactment of Title XIX, State agencies were permitted to obtain Federal financial participation for transportation and related travel expenses incident to securing medical services for public assistance recipients . . Id. at 2. (emphasis added). The regulations promulgated under the present Medicaid program may be seen as the culmination of the earlier efforts for: The Medicaid Program, from the start has encouraged States to provide or arrange for transportation of recipients to and from necessary medical care. Transportation was listed in Supplement D of the “Handbook of Public Assistance Administration” as the second of the criteria for assuring high quality of care. “Handbook” supplement D-5130, item 2.b). In addition, encouragement was provided through a broad definition of transportation for which Federal funding participation was available. (“Handbook” Supplement D-5141, item 15.a). Id. (emphasis added). The promulgation of the transportation requirement would also appear to be a vital component of other sections of the statute whose goal would be to further the Federal government’s commitment of ensuring adequate medical care for the needy: “This requirement is based on a number of provisions in the statute and regulations requiring that medical assistance be available in all political subdivisions of the State; provided with reasonable promptness to all eligible individuals; furnished in the same amount, duration and scope to all individuals in a group; provided in a manner consistent with the best interests of the recipient; available to eligible recipients from qualified providers of their choice; and with methods found necessary by the Secretary for proper and efficient operation of the State plan.” A fortiori, it is clear that the Secretary of HEW has determined the instant regulation tp be “necessary to the efficient administration” of the program, for the obvious (and common sense) reason that “needy will not be able to obtain necessary and timely medical care if they are without the means of getting to the providers of the service.” (emphasis added). As stated, supra, however, we have called upon HEW to lend this Court its expertise in this matter and we believe it important at this point to quote at. some length from its Amicus brief: “HEW has long believed that transportation of recipients to and from providers of medical services is an important concomitant of several discrete provisions in the operative Medicaid statute, U2 USCA § 1396 et seq. For example, the basic statute requires that medical assistance be available in all political subdivisions of the State, 42 USCA § 1396a(a)(l). In many circumstances, this provision could not be implemented in the absence of transportation services to enable the recipients to obtain needed treatment from specialized facilities and practitioners. The statute also mandates that medical assistance be furnished with reasonable promptness to all eligible individuals, id. at (8), and be available to eligible recipients from qualified providers of their choice, id. at (23). These statutory requirements would frequently be vitiated in the absence of a State provision for prompt transportation of eligible recipients to and from the qualified providers of their choice. Moreover, the statute requires that medical assistance be furnished in the same amount, duration, and scope to all individuals in the group, id. at (10), provided in a manner consistent with the best interest of the recipient, id. at (19), and with methods found necessary by the Secretary for the proper and efficient operation of the State plan, id. at (4). The present regulatory requirement that the State plan assure necessary transportation for recipients of medical assistance was thus clearly necessary to assure the complete implementation of these other statutory provisions.” (emphasis added). The States, in the opinion of HEW, do, however, have some flexibility in the overall administration and the choice of the particular modes of implementation of the program for: “It is the State’s prerogative to determine how this transportation requirement will be met. Federal funds are available under Title XIX if the State chooses to provide transportation services as part of the medical assistance plan (citing 45 C.F.R. 10(b) (15) (1) or as an administrative cost.” (emphasis added). Therefore, according to HEW, while the choice of means involved is at the State’s discretion, the specific goal of adequate medical transportation for the needy is a mandatory duty: “However, in some fashion, the State must now assure necessary transportation services to recipients of medical assistance.” (emphasis added). The Medical Assistance Manual, “Program Regulation Guide” MSA-PRG-17 itself suggests several most helpful plans that would provide the necessary transportation and which also might reduce the cost burden for the State. Such plans might include the securing of previously existing state-owned equipment such as school buses, station wagons, medi-buses, airplanes and helicopters; or by using local police and fire emergency equipment and ambulances; or by making arrangements with volunteer organizations such as the American Red Cross or the National Easter Seal Society . Prepaid or contract plans are also suggested. The Medical Assistance Manual, “Program Regulation Guide” also comments that “a state may and undoubtedly will use a variety of transportation systems as well as ways of arranging for and financing them . . . . In any case, however, it is essential that the State agency establish principles for determining how transportation is to be made available .... These may include primary reliance on public or voluntary efforts or a mixture of ways and means such as those suggested below.” (emphasis added). Nevertheless, “theimportant thing is that the methods described in the state plan show a commitment to assure that every eligible individual will have transportation necessary for access to any care provided under the plan. HEW also recognizes the wide diversity of individual medical needs and the impossibility of anticipating in a State Plan every specialized request for medical transportation; but, that nevertheless, the factor overriding importance which must be determinative is that the transportation facilities offered by the state “must be sufficient to assure that it is adequate for each individual’s particular combination of physical limitations, geographic location and available sources of care.” Defendants, however, make considerable issue out of an ambiguity in one sentence of the “Program Regulation Guide” which speaks of the transportation “requirement” as an “administrative one and [which] does not make transportation a required item of service.” What HEW is saying here, albeit inarticulately, in the Court’s opinion, is that while transportation is not mentioned in the Act as a service specifically mandated by Congress, see 42 U. S.C.A., supra at § 1396a et seq. it is, nevertheless, a “requirement” created “administratively;” to wit, by the promulgation of a regulation by the Secretary of HEW under the authority of 42 U.S. C.A., supra at § 1302. And, as we have seen, supra; such administrative requirements are to be given the full force and effect as the statutes themselves, King v. Smith, supra, and are to be considered as “necessary” to the “efficient administration” of the Act. Additionally, the Social Security Act is in the nature of remedial legislation and is to be liberally construed, Haberman v. Finch, 418 F.2d 664 (2nd Cir.) (1972); Rodriguez v. Celebrezze, 349 F.2d 494 (1st Cir.) (1965); Pippin v. Richardson, 349 F.Supp. 1365 (M.D.Fla.) (1972), and narrow technicalities or a narrow and legalistic interpretation are to be avoided, Schroeder v. Hobby, 222 F.2d 713 (10th Cir.) (1955), as not in furtherance of the intent of Congress and the remedial and beneficent purposes for which the Act was enacted. Brown and Barrett v. United States, 330 F.2d 692 (6th Cir.) (1964); Ewing v. Black, 172 F.2d 331, 6 A.L.R.2d 948 (6th Cir.) (1949); Henry Broderick, Inc. v. Squire, 163 F.2d 980 (9th Cir.) (1947); Ketcherside v. Celebrezze, 209 F.Supp. 226 (D.C.Kan.) (1962); Wray v. Folsom, 166 F.Supp. 390 (D.C.Ark.) (1958). Or, in the words of the Fifth Circuit (per Rives, Bell and Ainsworth, JJ.) in Pleasant v. Richardson, 450 F.2d 749 at 753 (1971): the “. . . Act should be interpreted ‘. . .in such a manner that its overriding purpose will be achieved, even if the words used leave room for a contrary interpretation.’ ” citing Haberman v. Finch, supra. MSA-PRG-17 further emphasizes that costs should, of course, be held to a minimum, wherever possible and observes in “Section D, Administrative Controls” that the payment for transportation should be “made only” where transportation is not otherwise available. The Section goes on to emphasize the need to explore all alternative means of transportation before state funds are to be expended: “If neighbors, friends or voluntary organizations have been providing a service, it is reasonable to expect them to continue except in the face of markedly changed circumstances or evident hardship.” Defendants also cite at some length selected portions of MSA-PRG-17 which they believe uphold their own interpretation of the non-necessity of medical transportation in the state plan. Aside from the passage discussed supra on the transportation requirement being “administrative” rather than “required” or mandatory, the other passages cited all go to the perimeters of the means to be used. The defendants have confused the discretion placed in the states as to the variety of transportation modes to be chosen as also including the choice not to provide any transportation at all — or not, at least, to provide any transportation that might cost too much money. Yet, the language of the Social Security Act is to be construed in favor of inclusion rather than exclusion, Delno v. Celebrezze, 347 F.2d 159 (9th Cir.) (1965); St. Luke’s Hospital Association v. United States, 333 F.2d 157, cert. den., 379 U.S. 963, 85 S. Ct. 652, 13 L.Ed.2d 557 (6th Cir.) (1964), and narrow and legalistic interpretations are to be disfavored if they conflict with the remedial and beneficent purposes of the act, supra. The second selection excerpted, for example, merely reiterates the goal of keeping costs down by utilizing where ever possible “cooperative arrangements already in effect with voluntary and public organizations.” The third selection points out what also has been emphasized, supra, that because each case may present “individualized patterns,” a state “cannot be expected to stipulate in advance in every possible transportation arrangement that will be available.” It is instructive to note that the full passage ends with, the citation quoted supra that “the important thing is that the methods described in the State plan show a commitment to assure that every eligible individual will have [necessary] transportation.” The fourth selection excerpted by the defendants from the Guidelines is simply not germane to the present case, for it is undisputed that the named plaintiff’s medical care is both- necessitous and covered — when he obtains it — by the State plan. This selection speaks of the “State [having] no obligation to provide transportation for medical care not included under the plan” or transportation to a hospital if the recipient has already exhausted his benefits under the plan. The fifth and final example of a limitation that the defendants contend might be applicable to the instant case is that “the requirement . . . that any eligible individual be allowed to obtain medical care from any qualified provider of such service should not be construed as obligating the agency to provide transportation beyond reasonable measures”. The immediately following sentence' — unexcerpted by defendants — provides the meaning as to the test of “reasonableness”: “Transportation need only be available to get individuals to qualified providers of their choice who are generally available and used by other residents of the community.” (emphasis added). Clearly, the guidelines are discussing “reasonable measures” in terms of “qualified providers” who are characterized as being “generally available and used by other residents of the community.” That the named plaintiff’s doctors are “generally available and used by other members of the community” as well as being “qualified providers” is undisputed. Finally, the State of Texas advances the preposterous argument that its only obligation under the regulation is merely a rhetorical one — that it only has to formulate a plan but not really to put it into effect: “The regulation requires only that the State plan make ‘provision for assuring’ necessary medical transportation. Had the regulatory intent been to require the states to provide transportation, the regulation could simply have stated that the state was required to provide or pay for such transportation.” (author’s emphasis). The answer to that argument can be found in simple logic, for if such a program were to prevail, the entire structure of the Federally mandated Social Security program as explicated by law and statute would become nugatory and void — a fiscal bauble to be toyed with by the States at their whim and with the total absence of effective administrative controls from Washington. The States could either spend too much or too little —as in the instant case — and be answerable to no one. We hold that the answer to this proposition can be found in the statute itself and in prior decisions of the courts of this Country. To begin with, the statute, 42 U.S.C. A., supra, in its very first sentence at § 1396a(a)(l) states that the Act “shall be in effect” (emphasis added) “in all political subdivisions of the State, and, if administered by them, be mandatory upon them . . .” This Court cannot conceive of any other meaning for “be in effect” than its plain meaning that it shall be in existence, operational and functioning. And, this definition is supported by both the applicable legal authorities, 28 C.J.S. 37.1 “Effect,” Supp. at 835-836: “In effect means in operation” and 21 Words and Phrases at 514-515, “ ‘In effect’ means to be ‘in operation’ ” [citation omitted], and by the dictionary definition as “REALITY, FACT — now used only in the phrase ‘in effect’,” Webster’s Third International Dictionary (1967). We believe the State’s interpretation here to be a perversion of the Congressional intent clearly contrary to the “overriding purpose” of the Act, Pleasant v. Richardson, supra. In this regard, we believe it to be essential to the proper interpretation of the Social Security Act to employ a natural reading which produces a harmonious result consistent with its legislative history and its remedial character. Rowe v. Finch, 427 F.2d 417 (4th Cir.) (1970); cf. Brown v. Barrett, supra, Ewing v. Black, supra. The approach here advocated by the defendants would simply make a mockery of the Social Security Act and would lead to administrative chaos. IV. THE TEXAS STATE PLAN With this framework in mind as to the legislative and regulative requirements and the applicable principles of judicial construction, we shall now turn to the decisive question of this case which is the compliance or non-compliance of the State Plan of Texas with the transportation requirement of 45 C.F.R., supra. We shall first cite the relevant portions of the State Plan as contained in the State’s Medical Care Manual of Services and then, we shall examine the actual application of the plan particularly with reference to the named plaintiff. Section 2310.9 of the Texas Department of Public Welfare’s Medical Care Manual of Services reads as follows in pertinent part: “2310.9 Certain Ambulance Services “Payment will be made for ambulance service when (1) the service is required by the patient’s condition and (2) the patient is transported to the nearest hospital with appropriate facilities (or to one in the same locality), from one hospital to another, to the patient’s home (or place of residence), to an extended care facility, or to a hospital where he had formerly been treated, and (3) the transportation is medically necessary and not merely for the convenience of the patient.” This is cited to by reference in the State Plan for Medical Assistance Under: “IV. Medical Assistance (D-5000) A. Amount, Duration, and Scope of Assistance (D-5000) l.a. (11) Ambulance Services” The above comprise the entire text of the Texas welfare regulations as they pertain to medically necessary transportation and are embodied in the State Plan. Thus, it is clear that the above ambulance provision is the only provision in the entire State Plan for medical transportation. It is therefore entirely obvious to this Court that the Texas State Plan both on its face for the reasons discussed, infra, and as construed and implemented by the defendants, infra, falls far short of the requirements set forth in 45 C.F.R. supra and by the Medical Assistance Manual, “Program Regulation Guide” supra, for in practice, the application of the statute is even more limited than it appears on its face. Firstly, the provision is limited solely to ambulance service. Such a limitation totally excludes other forms of transportation that could easily be more accessible, economical, and efficient than ambulance service which is, as we have seen, supra, exceedingly costly and may also in certain instances represent an unnecessary under-utilization of specialized medical resources. For example, it has been suggested in HEW’s Medical Assistance Manual guidelines, supra, and advanced in court by the plaintiffs that trucks or vans with hydraulic lifts could be utilized to transport the named plaintiff. Such a practice would further the twin goals of both affording the named plaintiff, for example, the particular kind of medical transportation that he requires (he must have means of transportation that will allow him to remain in his wheelchair) and also minimizing the costs involved to the State. Moreover, as stated above, using appropriately fitted trucks or vans or the like would also “free up” ambulances for situations where their own specialized resources would be most effectively utilized and needed. The second condition of the ambulance provisions further limits its application only to those situations where the recipient is “transported to the nearest hospital or skilled nursing facility . . . ” Such a limiting clause would — and does —deprive a needy individual of needed medical treatment that would be administered at facilities other than those enumerated, for as the defendants expressly admit in their Trial Brief: “Ambulance transportation ... to a hospital’s outpatient department, a private clinic or a private doctor’s office and the return trip is not covered or payable.” In other words, the State will only furnish ambulance transportation if the recipient is to be admitted (a) to a hospital and (b) as an in-patient at that hospital; but they will not take him home afterwards. The State’s policy totally ignores the concept of remedial, supportive and preventive treatment for the chronically ill such as Benjamin Smith and is shortsighted in the extreme for those so chronically afflicted. Thus untreated, the minor medical problem becomes the major medical problem and, in the end, and with consummate irony, the individual who under Texas law did not initially qualify for transportation becomes, owing to those very policies, sick enough to qualify as an emergency case (infra at 33) to be transported by ambulance and to be admitted as a hospital in-patient. It is the worst kind of false economy. In this case, we have evidence that with the denial of transportation that, at the least, the named plaintiff’s “contractures” are accelerating; that he is apparently coming down with increased urinary tract infections; that he is not being afforded the proper therapy; and we believe the Supreme Court’s language in Memorial Hospital v. Maricopa County earlier this year in a case also involving, inter alia, the health rights of indigents to be particularly appropriate: “To allow a serious illness to go untreated until it requires emergency hospitalization is to subject the sufferer to the danger of a substantial and irrevocable deterioration in his health . . . The denial of medical care is all the more cruel in this context, falling as it does on indigents who are often without the means to obtain alternative treatment.” This Court thus holds that on its face the Texas State Plan as it contains the above-cited restrictions as to medically necessary transportation for indigents is in violation of the applicable Federal regulations, supra at 45 C.F.R. and the directive of promulgated guidelines, Medical Assistance Manual, “Program Regulation Guide,” and MSA-PRG-17, supra, that “the important thing is that the methods described in the state plan show a commitment to assure that every eligible individual will have transportation necessary for access to any care provided under the plan . . . [and that] in some fashion, the state must now assure necessary transportation services to recipients of medical assistance.” These restrictions and the intrinsic limitations of the proffered ambulance service discussed above are also in further contravention of other sections of the statute and regulations which mandate that: Medical assistance be available in all political subdivisions, 42 U.S. C.A. § 1396a(a)(l); that medical assistance be furnished with reasonable promptness, id. at (8); that medical assistance be provided in the same amount and scope to all eligible individuals, id. at (10); that medical assistance be provided in a manner consistent with the best interests of the recipient, id. at (19); and that it be available to eligible recipients from qualified providers of their choice, id. at (23). Yet, the limitations of the written State Plan are compounded in practice by. an even more restrictive policy that only furnishes ambulance service in “emergency” situations. Although the scope of what constitutes an “emergency” is not crystal clear from the record, it is nonetheless clear from the deposition of the Defendant Zalaznick that essential transportation needs of individuals such as the named plaintiff are conclusively denied: “Q Have you not, Mr. Zalaznick, made a statement to me on several occasions subsequent to the hearing that you interpreted the medical necessity as opposed to the mere convenience requirement there as being an emergency requirement, is that true ? “A Say that again. “Q Did you tell me that you thought that third requirement limited the ambulance services to emergency situations ? “A To some extent, yes. “Q You did tell me that was your belief, did you not? “A Yes. “Q And did you tell me that was the manner in which the department had been interpreting that regulation ? “A It is possible. I don’t recall. “Q Is that the manner in which the department interprets that particular regulation to the best of your knowledge? “A Basically yes, I would say. That is one of the basics there.” The question of a similarly restricted state policy also was the subject matter of Buffington v. Venable, supra, arising from the policies of the Georgia State Medicaid plan and its welfare department with regard to implementation of 45 C.F.R., supra. In the Buffington case, “ . . . the Georgia plan apparently had no single statement about provision of such transportation, but did provide a transportation allowance as part of the monthly budget and also provided ambulance service when necessary.” This was the extent of the plan. During the pendency of the litigation, presumably in response to the litigation and a notification of non-compliance from HEW, Georgia amended its plan and the Court observed: “It would certainly seem that the State’s amendment of the Medicaid Plan, which is now approved by HEW, is a tacit admission that the previous plan was out of compliance with the pertinent regulation.” The shortcomings in practice of the present Texas State Plan are overwhelmingly displayed in the case of plaintiff Benjamin Smith. The defendants have so stipulated and have admitted at every stage of the pleadings that they knowingly deny him transportation that is necessary for his medical condition. Their Trial Brief at 3 is an example, for it plainly concludes: “Thus, the Department [of Public Welfare] is unable to assure the availability of all medical transportation which this plaintiff [Benjamin Smith] may need and has requested.” (emphasis added). Moreover, a quick glance at the statistics involved shows that it has been stipulated (Stipulations No. 48-50) that named plaintiff requires medical transportation at least three (3) days a week or approximately 12-15 trips per month and yet, the Department’s own records reveal that over the course of the past three years only four ambulance trips have been furnished to plaintiff Smith. Where a man has been waiting over three years and is still waiting for adequate transportation that has been forthcoming on only four occasions, it would be difficult to find a more clear-cut case of the denial of medical assistance with “reasonable promptness,” 42 U.S.C.A. § 1396a(a)(8), supra at 19 & 32, to an otherwise eligible individual. As Mr. Justice Rehnquist put it in Jefferson v. Hackney, 406 U.S. 535, 545, 92 S.Ct. 1724, 1731, 32 L.Ed.2d 285 (1970) : “The statute was intended to prevent the States from denying benefits, even temporarily, to a person who has been found fully qualified for aid.” A further sense of the injury inflicted upon plaintiff Smith by the denial of medical transportation can be found by returning to the letter of his Doctor, Charles L. Simpson of the University of Texas Medical School and the Bexar County Hospital District: “I have followed Ben [Smith] for five months in Neurosurgery and General Surgery Clinics. He appears to be well motivated and very interested in his occupational and physical therapy, but has a great deal of difficulty with transportation to and from the hospital for this therapy as well as transportation for clinic visits and emergency room visits when necessary. He presently has to pay for transportation from his very limited resources and due to his inability to attend therapy regularly his difficulty with contractures is accelerating rapidly. Medications alone -purchased outside the hospital has [sic] amounted to one hundred dollars on one occasion due to his inability to come to Bexar County Hospital where a discount would be available.” Dr. Simpson concludes: “I realize that Ben’s rehabilitation potential is very limited, but his visits to physical therapy and occupational therapy are one of the few things that Ben looks forward to as potentially beneficial to him.” This letter was written on September 4, 1970 and one can only surmise at the pain and suffering alone incurred by the “accelerating” of Benjamin Smith’s “contractures” over nearly the past four years. Additionally, Dr. Simpson raises what this Court considers to be a particularly valid point — that the deprivation of medically necessary transportation is disadvantageous even to the state for it may very well be a kind of false economy that only results in the end in higher medical costs. In this regard, we also note the statement of University of Texas Medical School Medical Social Worker Gail Pounders that: “. Ben’s case is complex and expensive, yet if he is untreated because of lack of transportation he then ends up having to be hospitalized. This is false economy and leads to a higher expenditure of tax funds.” It is, therefore, clear beyond all peradventure of doubt that the Texas State Plan in both form as well as in practice is out of compliance with the applicable Federal regulations, 45 C.F.R., supra and the promulgated guidelines, Medical Assistance Manual, “Program Regulation Guide” MSA-PRG-17, supra. Nevertheless, the defendants urge upon the Court two additional points that we also find wholly inadequate in salvaging the glaring deficiencies of the State Plan. The State of Texas first argues that there are other parts of the State welfare plan not included in the instant Medical Assistance plan that would ensure proper compliance. The State in its Trial Brief cites (a) to the $25.00 per month received by the plaintiff as his “Personal Needs Allowance” which we have discussed above and (b) to the portions of the Social Services Handbook, Sections 5440(5), (6), and (8)(b) which call for the recipient’s social worker “to plan with the client, family or other appropriate persons, as necessary, to assist the client in carrying out medical recommendations, including transportation ... to plan for transportation to and from necessary health resources.” This approach simply does not comport with this Court’s interpretation of 45 C.F.R., supra which reads: “State Plan Requirements: A State Plan for medical assistance under Title XIX of the Social Security Act must specify that there will be provision for assuring necessary transportation . describe the methods that will be used.” Nor does this approach comport with HEW’s Amicus which states that “the HEW regulations at issue require that necessary transportation be provided as part of the plan.” This Court holds as a matter of law that the State Medical Assistance Plan under Title XIX must contain within its four corners: (a) a guarantee of necessary medical transportation for eligible welfare recipients and (b) a general description of the various methods to be used. We read the language of the instant regulation, 45 C.F.R., supra,'as being clear and unambiguous in its command. Of course, we recognize as the “Program Regulation Guide” points out, the State does not have to “stipulate in advance” every possible mode of transportation since the situation will necessarily differ with each individual. Nevertheless, the command of the language is unmistakable — there must be some inclusive description of the primary modes of transportation that can reasonably be contemplated to be utilized. Secondarily, even allowing, arguendo, for the inclusion of the plaintiff Smith’s $25.00 monthly “Personal Needs Allowance,” it is painfully obvious that the pitiful sum involved, supra, is totally inadequate for Benjamin Smith’s needs — ■ it won’t even pay for one ambulance trip. Such a practice would also appear to be of questionable legality as the “Program Regulation Guide” states that: “Inclusion of the cost of travel as an item in the money payment is feasible in some instances . . . [but] the money payment approach would not be applicable to the medically needy or to categorically needy not receiving money payments.” and that “the inclusion of travel in the money payment would not be suitable, however, if money grants are subject to máximums or percentage reductions” as they apparently are in Texas. HEW in its Amicus also expresses doubts about this practice: “If only a percentage of such necessary transportation costs would be covered by an increase in the cash grant this would not comply with the regulatory requirement.” (citing to the “Program Regulation Guide,” supra.) One can also only wonder as well at the situation of someone as the named plaintiff who, presumably, in addition to paying for the transportation would also have to be responsible personally for making the arrangements with the transportation providers, making telephone calls, answering mail, paying the bills, filling out — and obtaining money orders, stamps, checks, envelopes, etc. Benjamin Smith, it is stipulated, can perform none of the “normal” functions of life, can, apparently, barely sit up, has difficulty with speech — yet such an arrangement expects him to assume the administrative — as well as fiscal — burdens of arranging for his own transportation. This, in the Court’s opinion is neither therapeutic, practical, nor legal. Furthermore, one of the lessons of this entire case is of the fruitlessness of mere “planning” without any resources to follow through with the “plans” formulated. The State urges us to consider a social worker vaguely “planning” without any means, money, or power to implement such plans as somehow rendering compliance within the Federal mandate — and also effectively helping her client. It has been demonstrated both hypothetically and, in practice, in plaintiff Smith’s case that such a course is practically useless when confronted with the harsh realities dictated by the conditions of persons such as plaintiff Smith, for Benjamin Smith does not need more “planning,” he needs a ride. The defendants also allege that there has been some kind of HEW approval of their State Plan in this regard. Such an assertion could not be more wrong— or misleading. They write that HEW has “approved the state plan and has not subsequently held the state out of conformity on this issue.” It is uncontested that prior to the promulgation of the instant regulation in 1970, HEW in 1967 had approved the Texas State Medical Assistance Plan and that subsequently the State Plan had not been formally held out of compliance. Nevertheless, there seems to be little doubt that the Texas Plan’s provision only for ambulance service as the medical transportation caused some raised eyebrows at HEW from the very beginning as evidenced by the HEW Amicus and the attached correspondence and that HEW’s seeming “approval” was illusory at best: “On September 16, 1970, HEW’S Dallas regional office wrote to the Commissioner of the Texas Department of Public Welfare noting the existence of the new mandatory transportation requirement and inquiring how the State of Texas proposed to comply therewith. On October 7, the Commissioner responded by letter, noting the existence of Section 4(A) (11) of the Texas State Medicaid plan, dated August 8, 1967, which provided for ambulance services pursuant to Blue Cross Contract No. 21365, Article IV-A 7.3. The Texas Welfare Commissioner further stated that in instances where this provision would be inadequate, the State would adjust the recipient’s standard of need so as to supply cash grants for additional transportation. It does not appear that .this commitment was ever incorporated in the Texas State Medicaid plan. Nor is it certain whether this undertaking would have been found to satisfy all the requirements of 45 C. F.R. § 249.10(a)(5) had the State attempted to so amend its Medicaid plan in a formal fashion. HEW’s records do not reflect that any subsequent correspondence on this matter was conducted following HEW’s receipt of the State’s October 7 letter. ” (emphasis added). Absent even this posture of the case, however, the Court does not find necessarily compelling the argument that since HEW granted approval to a State Plan in 1967 that said approval automatically attached to the expression of all HEW subsequently required State Plan amendments and additions. The Federal government is sometimes slow —witness the ease at bar — to follow through with the enforcement of its own regulations in this area and it would be a grave mistake for a Court to close its eyes to the mistake of equating bureaucratic inaction with actual approval. At the least, in such a situation judicial review of challenges to the state plan is certainly not precluded. See Triplett v. Cobb, 331 F.Supp. 652, 660 (N.D.Miss.) (1971) and Banner v. Smolenski, 315 F.Supp. 1076 (D.C.Mass.) (1970). IV. RETROACTIVE BENEFITS The question of the retroactivity of benefits as urged by the plaintiffs has been fully disposed of by the recent Supreme Court decision in Edelman v. Jordan, 416 U.S. 1000, 94 S.Ct. 1347, 39 L.Ed.2d 662, holding that the Eleventh Amendment is a conclusive bar to the award of retroactive benefits such as those sought in the instant case. What has been said above is sufficient to a full disposition of the case. However, the Court feels that, since this is probably a case of first impression and there undoubtedly will be an appeal, it is incumbent upon the Court to address itself to all of the legal problems which were raised in the course of the hearings. The Court will therefore touch upon the other claims made which the Court does not feel are at all dispositive of the case and decisions which are not necessary for a complete resolution of the ease. V. ADMINISTRATIVE HEARING PROCEDURES As noted, supra, plaintiff Benjamin Smith appealed the denial of transpor