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AGO 1980 No. 18 - August 28, 1980
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

RETIREMENT ‑- PENSIONS ‑- LEOFF RETIREMENT SYSTEM ‑- DRUGS AND MEDICINE ‑- MEDICAL SERVICES UNDER RCW 41.26.150 

(1) In the case of a LEOFF Retirement System member seeking payment for medical services, an employer under chapter 41.26 RCW may be required to pay for drugs prescribed by a physician for the member regardless of whether or not the drug prescribed is one which can be legally purchased without a physician's prescription. 

(2) Syringes used to inject insulin do not constitute "drugs and medicine" under RCW 41.26.030(22)(b)(iii)(A). 

(3) It is a function of a LEOFF Disability Board established under RCW 41.26.110 not only to designate what medical services are to be provided to a sick or disabled member but, in addition, to designate the provider of medical services under RCW 41.26.150. 

                                                              - - - - - - - - - - - - - 

                                                                 August 28, 1980 

Honorable Paul Klasen
Prosecuting Attorney
Grant County
P. O. Box 37
Ephrata, Washington 98823

Cite as:  AGO 1980 No. 18                                                                                                                

Dear Sir: 

            By letter previously acknowledged you requested our opinion on several questions pertaining to the designation of medical services by a LEOFF disability board under RCW 41.26.150.  We paraphrase your questions as follows: 

            (1)  In the case of a LOEFF Retirement System member seeking payment for medical services, may an employer under chapter 41.26 RCW be required to pay for drugs prescribed by a physician for the member where the drug prescribed is one which can be legally purchased without a physician's prescription? 

             [[Orig. Op. Page 2]]

            (2) Do syringes used to inject insulin constitute "drugs and medicine" under RCW 41.26.030(22)(b)(iii)(A)?
 

            (3) Is a LEOFF disability board established under RCW 41.26.110 authorized to designate the particular provider of medical services under RCW 41.26.150? 

            We answer questions (1) and (3) in the affirmative and question (2) in the negative for the reasons set forth in our analysis. 

                                                                     ANALYSIS 

            All three of your questions involve RCW 41.26.150(1), that part of the Washington Law Enforcement Officers' and Fire Fighters' Retirement System Act (LEOFF) governing the designation of medical services by local LEOFF disability boards.  That subsection provides, in pertinent part, as follows: 

            "Whenever any active member, or any member hereafter retired, on account of service, sickness or disability, not caused or brought on by dissipation or abuse, of which the disability board shall be judge, is confined in any hospital or in his home, and whether or not so confined, requires medical services, the employer shall pay for such active or retired member the necessary medical services not payable from some other source as provided for in subsection (2). . . . And provided further, That the disability board shall designate the medical services available to any sick or disabled member." 

The term "medical services," in turn, is defined by RCW 41.26.030(22) as follows: 

            "'Medical services' for persons who establish membership in the retirement system on or before September 30, 1977, shall include the following as minimum services to be provided.  Reasonable charges for these services shall be paid in accordance with RCW 41.26.150.

            "(a) Hospital expenses:  These are the charges made by a hospital, in its own behalf, for 

             [[Orig. Op. Page 3]]

"(i) Board and room not to exceed semiprivate room rate unless private room is required by the attending physician due to the condition of the patient. 

            "(iii) Necessary hospital services, other than board and room, furnished by the hospital.
 

            "(b) Other medical expenses:  The following charges are considered 'other medical expenses', provided that they have not been considered as 'hospital expenses'.

 

            "(i) The fees of the following:
 

            "(A) A physician or surgeon licensed under the provisions of chapter 18.71 RCW;
 

            "(B) An osteopath licensed under the provisions of chapter 18.57 RCW;
 

            "(C) A chiropractor licensed under the provisions of chapter 18.25 RCW.

 

            "(ii) The charges of a registered graduate nurse other than a nurse who ordinarily resides in the member's home, or is a member of the family of either the member of [or] the member's spouse.
 

            "(iii) The charges for the following medical services and supplies:

 

            "(A) Drugs and medicines upon a physician's prescription;
 

            "(B) Diagnostic x-ray and laboratory examinations;
 

            "(C) X-ray, radium, and radioactive isotopes therapy;
 

            "(D) Anesthesia and oxygen;

            "(E) Rental of iron lung and other durable medical and surgical equipment;
 

            "(F) Artificial limbs and eyes, and casts, splints, and trusses; 

             [[Orig. Op. Page 4]]

"(G) Professional ambulance service, when used to transport the member to or from a hospital when he is injured by an accident or stricken by a disease;

            "(H) Dental charges incurred by a member who sustains an accidental injury to his teeth and who commences treatment by a legally licensed dentist within ninety days after the accident;
 

            "(I) Nursing home confinement or hospital extended care facility;
 

            "(J) Physical therapy by a registered physical therapist;
 

            "(K) Blood transfusions, including the cost of blood and blood plasma not replaced by voluntary donors;
 

            "(L) An optometrist licensed under the provisions of chapter 18.53 RCW."

            At the outset, we would point out that this definition is not inclusive but, instead, only lists theminimum medical services to be provided and paid for by the LEOFF Retirement System member's employer or former employer.  Services other than those listed in the statute may also be "necessary medical services" and thus may be designated by the LEOFF disability board under the authority of the last proviso of RCW 41.26.150(1) as quoted above.  Stegmeier v. Everett, 21 Wn.App. 290, 584 P.2d 488 (1978).

            Question (1):

            Your first question, however, is concerned with those minimum medical services covered by the term "[d]rugs and medicine upon a physician's prescription" in RCW 41.26.030(22)(b)(iii)(A).  In particular, you have referred to insulin and aspirin which are nonprescription drugs but which may be prescribed by a physician.  In the event that such drugs are thus prescribed for a member you have asked whether they would then be one of those required minimum medical services contemplated by RCW 41.26.030(22)(b)(iii)(A). 

            The word "prescription" is not defined by the statute and, therefore, its meaning depends on common usage and the context in which it is used, unaffected by other statutory  [[Orig. Op. Page 5]] definitions.  Childers v. Childers, 89 Wn.2d 592, 575 P.2d 201 (1978).  In the context of chapter 41.26 RCW we do not view the term as limited to prescriptions for drugs or medicine which can only be dispensed upon the order of a duly authorized practitioner. 

            We reach this conclusion, first, because the statute does not refer to "prescription drugs and medicine"; rather, it refers to a "physician's prescription."  And, of course, a physician can prescribe both nonprescription and prescription drugs as needed for his or her patients.  Secondly, to the extent the term "physician's prescription" creates an ambiguity in the statute we are constrained to adhere to the rule of statutory construction which requires that when there is an ambiguity in a pension statute, any doubt should be resolved in favor of the party for whose benefit the pension statute was intended.  Bowen v. Statewide Retirement System, 72 Wn.2d 397, 433 P.2d 150 (1967). 

            Therefore, in response to your first question, we view both prescription drugs and nonprescription drugs which are prescribed by a physician as "medical services" within the meaning of RCW 41.26.030(22)(b)(iii)(A).  We thus answer the question in the affirmative. 

            Question (2): 

            You have then asked whether syringes used for injecting insulin are drugs or medicine under that same statute.  We answer this question in the negative.  Both "drug" and "medicine" are defined in terms of a substance used for the treatment or prevention of disease or illness.  Webster's New Twentieth Century Dictionary, Unabridged, Second Edition.  Syringes used for injecting the substance‑-in this case insulin‑-do not themselves constitute drugs and medicine. 

            In thus answering your second question we would note again, however, that RCW 41.26.030(22) sets forth only the minimum medical services required by the statute.  Thus, although the provision of syringes is not among those medical services required under RCW 41.26.030(22), a LEOFF disability board has discretion to designate more than these minimum services including, in an appropriate case, syringes for the injection of insulin. 

            Question (3): 

            Finally, you have asked whether a local LEOFF disability board is authorized to designate the particular provider of medical services under RCW 41.26.150(1), supra. 

             [[Orig. Op. Page 6]]

            The critical language of the statute appears in its final proviso which, as above quoted and here repeated for each [ease] of reference, reads as follows: 

            ". . .And provided further, That the disability board shall designate the medical services available to any sick or disabled member." 

            Does this statutory language mean only that the board is to designatewhat medical services are to be available to the member or does it, in addition, mean that the board is also to designate who is to provide those services?

            As you are no doubt aware one of the purposes for which the Law Enforcement Officers' and Fire Fighters' Retirement System was established by the legislature in 1970 was to replace a number of preexisting, locally administered pension systems for municipal firemen and first-class city police officers.  See, § 4, chapter 209, Laws of 1969, 1st Ex. Sess., as amended by § 2, chapter 6, Laws of 1970, 1st Ex. Sess. (RCW 41.26.040).  In some respects, however, many of the substantive provisions of the new pension law were patterned after (and even in some cases copied from) parts of the earlier pension laws thus being supplanted.  And, in that regard, we note that the above‑quoted proviso in RCW 41.26.150(1) is almost identical to a proviso in RCW 41.20.120 dealing with medical benefits for members of the old first-class city police officers' retirement system.  The language of that proviso, which was added to the statute by an amendment in 1955, is as follows: 

            ". . .And provided further, That the board shall designate the hospital and medical services available to such sick or disabled policemen."1/ 

             Upon researching further, we have also discovered that this proviso was added to RCW 41.20.120 less than a year after the State Supreme Court had rules, in Augustine v. Police Pension Fund Commissioners, 44 Wn.2d 732, 270 P.2d 475 (1954), that the police pension board of the city of  [[Orig. Op. Page 7]] Aberdeen had acted in excess of its authority in attempting to designate the particular hospital and doctors to be utilized by medical benefit claimants in that city as a condition to their obtaining such benefits under the pension law.  It thus seems highly likely that the 1955 legislature, in adopting the subject proviso, was responding to that ruling‑-with a mind toward filling the void which the court found to exist and thereby sanctioning the pension board policy which had been struck down.

             As observed by the Court inIn re Levy, 23 Wn.2d 607, 616, 161 P.2d 651 (1945), 

            "In enacting legislation upon a particular subject, the legislature is not only presumed to be familiar with its previous legislation relating thereto, but also with the court decisions, if any, construing such former enactments. . . ." 

            Another presumption which has been applied by the courts on many occasions in construing statutes is that the legislature, in amending an existing law, is presumed to have intended to make a change in the law as it then stands.  See, e.g.,Dando v. King County, 75 Wn.2d 598, 452 P.2d 955 (1969) and cases cited therein.  And, in turn, when the legislature then later closely patterns some new legislation after a statute already in existence it should likewise logically be presumed to have intended the new law to have the same meaning and effect as the prior statute after which it was patterned.  Cf.,In re Elliott's Estate, 22 Wn.2d 334, 156 P.2d 427 (1945). 

            Given this most interesting bit of history as an aid in construing the here subject language of RCW 41.26.150(1), supra, we therefore believe that your third question is properly answerable in the affirmative.  By its adoption of the concluding proviso to that subsection, patterned after the 1955 amendatory proviso in RCW 41.20.120, supra, the legislature should be deemed, in our opinion, to have intended to make it a function of the various local LEOFF disability boards not only to designate what medical services are to be provided to a sick or disabled member of the LEOFF Retirement System but, in addition, to specify who is to be the provider of those medical services.2/ 

             [[Orig. Op. Page 8]]

            We trust that the foregoing will be of assistance to you. 

Very truly yours,
SLADE GORTON
Attorney General 

STEVEN W. SMITH
Assistant Attorney General

                                                         ***   FOOTNOTES   *** 

1/See, § 7, chapter 69, Laws of 1955, amending RCW 41.20.120.  In fact, as originally enacted, the proviso in RCW 41.26.150(1) was identical to the proviso in RCW 41.20.120.  In 1971, the reference to hospital services was deleted from RCW 41.26.150(1) and instead included within the definition of medical services in RCW 41.26.030(22). See § 6 and § 9, chapter 257, Laws of 1971, 1st Ex. Sess.

2/We would assume, however, that a local disability board generally would have no objection to designating the provider of the member's own choice, unless there is some good reason for not so doing.

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