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AGO 1986 No. 12 - October 27, 1986
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

COUNTY ‑- EMPLOYMENT ‑- RETIREMENT ‑- MEDICAL BENEFITS ‑- LIABILITY FOR COSTS OF NURSING HOME CARE FOR RETIRED LAW ENFORCEMENT OFFICERS AND FIREFIGHTERS

RCW 41.26.150 makes the counties responsible for the costs of nursing home care for those individuals retired from county employment under the Law Enforcement Officers' and Fire Fighters' Act for so long as nursing home confinement is required.The county may reduce the amount paid monthly to a retiree by the amount currently received from another source as reimbursement for medical services but not for those monies received by the retiree for other purposes such as a general retirement allowance. 

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

                                                                October 27, 1986 

Honorable Richard W. Miller
Adams County Prosecuting Attorney
210 West Main
Ritzville, WA 99169

  Cite as:  AGO 1986 No. 12                                                                                                               

 Dear Sir:

             By letter previously acknowledged, you have requested an opinion on several questions relating to the county's responsibility to pay nursing home expenses of two retired county employees.

                                                        FACTUAL BACKGROUND

             Your questions are based upon a factual background contained in your letter.  The two individuals are both retired from county employment under the provisions of chapter 41.26, the Law Enforcement Officers' and Fire Fighters' Act (LEOFF).  Both persons established membership in the retirement system on or before September 30, 1977, and therefore are retired under what is generally called LEOFF Plan I.

             Each of the retirees is currently suffering from a medical disability requiring full-time confinement in a nursing home.  Both retirees require 24-hour care and, according to a physician appointed by the county disability board, neither individual is expected to recover from his illness.  In each case, it is  [[Orig. Op. Page 2]] anticipated that the retiree will require full-time nursing home care until death.

             For some months (the exact dates are not specified in the material you have supplied), the county has been paying the full costs of nursing home care for the two individuals in question.  These costs are substantial and will continue to be so during the lives of the retirees.  The retirees are eligible for medicare benefits, but the Federal Department of Health and Human Services has determined that neither of these individuals is eligible for medicare coverage of nursing home costs because the costs in question are for non-skilled custodial care and not for skilled nursing or for rehabilitative services.

             The county has medical insurance intended to cover the individuals in question, but the county's insurance carrier has also denied coverage for the nursing home expenses in question, apparently for the same reasons as the Department of Health and Human Services.

                                                         QUESTIONS PRESENTED

             You have asked the following questions (which we have slightly paraphrased in some cases), all intended to probe the extent of the county's liability for the nursing home costs:

             1.         Is the county responsible for the costs of nursing home care for the two individuals described above, notwithstanding that the costs are not covered by medicare or the county's medical insurance policy?

             2.         Assuming that the county is responsible for the cost of nursing home confinement, may the county commissioners reduce the amount they pay monthly to the retirees by the amount of (a) workers' compensation, (b) social security retirement payments, or (c) the LEOFF I pension payments received monthly by each retiree?

             3.         Would the answer to Question 2 differ depending on whether the retiree had any dependents?

             4.         Assuming that the county is not fully responsible for the nursing home costs of a retiree, can the county request repayment from the retiree for all or a portion of the amounts previously paid to him?

              [[Orig. Op. Page 3]]

            5. Does RCW 41.26.030(22)(iii)(I) limit the amount payable to retirees in nursing homes to medical services and supplies, thereby excluding charges for room and board?

             We answer Question 1 in the affirmative, Questions 3 and 5 in the negative, and Questions 2 and 4 in the manner indicated in the analysis below.  Our answer to Question 5 is largely contained within our answer to Question 1.

                                                                      ANALYSIS

             Before proceeding to your specific questions, we set forth the statute applicable to your inquiry.

             According to the facts you have given to us, each of the individuals in question is retired from county employment under LEOFF Plan I.  Such employees are entitled to the benefits of RCW 41.26.150, which reads as follows:

             (1)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).  In the case of active or retired fire fighters the employer may make the payments provided for in this section from the firemen's pension fund established pursuant to RCW 41.16.050 where such fund had been established prior to March 1, 1970:  PROVIDED, That in the event the pension fund is depleted, the employer shall have the obligation to pay all benefits payable under chapters 41.16 and 41.18 RCW:  PROVIDED FURTHER, That the disability board in all cases may have the active or retired member suffering from such sickness or disability examined at any time by a licensed physician or physicians, to be appointed by the disability board, for the purpose of ascertaining the nature and extent of the sickness or disability, the physician or physicians to report to the disability board the result of the examination within three days thereafter.  Any active or retired member who refuses to submit to such examination or examinations shall forfeit  [[Orig. Op. Page 4]] all his rights to benefits under this section for the period of such refusal:  AND PROVIDED FURTHER, That the disability board shall designate the medical services available to any sick or disabled member.

             (2) The medical services payable under this section will be reduced by any amount received or eligible to be received by the member under workmen's compensation, social security including the changes incorporated under Public Law 89-97 as now or hereafter amended, insurance provided by another employer, other pension plan, or any other similar source.  Failure to apply for coverage if otherwise eligible under the provisions of Public Law 89-97 as now or hereafter amended shall not be deemed a refusal of payment of benefits thereby enabling collection of charges under the provisions of this chapter.

             (3) Upon making such payments as are provided for in subsection (1), the employer shall be subrogated to all rights of the member against any third party who may be held liable for the member's injuries or for the payment of the cost of medical services in connection with a member's sickness or disability to the extent necessary to recover the amount of payments made by the employer.

             (4) Any employer under this chapter, either singly, or jointly with any other such employer or employers through an association thereof as provided for in chapter 48.21 RCW, may provide for all or part of one or more plans of group hospitalization and medical aid insurance to cover any of it employees who are members of the Washington law enforcement officers' and fire fighters' retirement system, and/or retired former employees who were, before retirement, members of said retirement system, through contracts with regularly constituted insurance carriers, with health maintenance organizations as defined in chapter 48.46 RCW, or with health care service contractors as defined in chapter 48.44 RCW.  Benefits payable under any such plan or plans shall be deemed to be amounts received or eligible to be received by the active or retired member under subsection (2) of this section.

 (Emphasis added.)

              [[Orig. Op. Page 5]]

            Because the individuals in question are both retired under chapter 41.26 RCW and because both are now disabled and require medical care, the county (the "employer" for the purposes of the statute) is generally liable to pay for their medical care.  All of your questions concern possible qualifications, exceptions, or limitations to that general liability.

             Question (1):

             Is the county responsible for the costs of nursing home care for the two individuals described above, notwithstanding that the costs are not covered by medicare or the county's medical insurance policy?

             As noted earlier, RCW 41.26.150 generally requires employers (in this case the county) to pay for the costs of medical care of persons retired from employment under chapter 41.26.  Another portion of that chapter that appears to be directly relevant comes from the definitions set forth in RCW 41.26.030:

             As used in this chapter, unless a different meaning is plainly required by the context:

            . . .

             (22) "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.

            . . .

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

            . . .

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

            . . .

 (Emphasis added.)

              [[Orig. Op. Page 6]]

            The statutes just cited appear to require the county to pay for the nursing home confinement costs of the two retirees in question as minimum necessary medical costs under RCW 41.26.150.  When the language of a statute is plain and free from ambiguity, there is no room for construction.  Bavarian Properties, Ltd. v. Ross, 104 Wn.2d 73, 700 P.2d 1161 (1985).  The only question is whether the language of the statutes or their context admits of any ambiguity so that the county's liability is not as absolute or clear as it initially appears.

             Although we probed and tested several possible readings of the statutes, we cannot escape concluding that the quoted language is too plain and unambiguous to admit of any construction other than the obvious one:  that the county is obligated to pay for the medical services of the two retirees in question and that those medical services, by virtue of the definitions in RCW 41.26.030, include the cost of nursing home confinement.

             Were it not for the specific mention of "nursing home confinement" in RCW 41.26.030, the county might argue that portions of the costs of confinement are not "costs of medical services" for which the county is liable.  Whether or not these costs are, strictly speaking, medical in nature, they certainly are included in the costs of nursing home confinement and thus are unambiguously treated as "minimum medical services" paid by the county under the statutory scheme.

             RCW 41.26.150 does allow the local disability board some discretion in determining which services are "necessary medical services."  See AGO 1980 No. 18; AGO 1970 No. 16 (copies attached.).1/ The board has apparently engaged a physician pursuant  [[Orig. Op. Page 7]] to that statute who has advised that nursing home confinement is necessary in both cases, but the board conceivably could reexamine the two cases from time to time and determine in the future that nursing home confinement is no longer a necessary medical service.  However, the facts you have supplied indicate that such a prospect is highly unlikely.

             To summarize, we find a plain and unambiguous statutory requirement that the county assume the costs of medical care, including the costs of nursing home confinement, in these two cases.  Both cases are subject to periodic reexamination by the local disability board, but so long as nursing home confinement is required, the county will have an obligation to pay for it.  An affirmative answer to your first question is therefore dictated.

             Question (2):

             Assuming that the county is responsible for the cost of nursing home confinement, may the county commissioners reduce the amount they pay monthly to the retirees by the amount of (a) workers' compensation, (b) social security retirement payments, or (c) the LEOFF I pension payments received monthly by each retiree?

             This question arises out of the language of subsection (2) of RCW 41.26.150.  That subsection provides in part:

             The medical services payable under this section will be reduced by any amount received or eligible to be received by the member under workmen's compensation, social security including the changes incorporated under Public Law 89-97 as now or hereafter amended, insurance provided by another employer, other pension plan, or any other similar source. . . .

              [[Orig. Op. Page 8]]

This language must be read in context with that portion of subsection (1) of RCW 41.26.150 which states that "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)."  (Emphasis added.)

             Because of the plain language of the statute, we conclude that the county may reduce the amount paid monthly to each retiree by any amount of workers' compensation received by that retireeas payment for medical services.  We note that the proposition is simpler to state than to apply, because the term "workmen's compensation" (now gradually being replaced by the gender-neutral term "workers' compensation") refers to a widely varying group of types of benefits, some of which are intended as payment for medical services and some of which are not.  See generally ch. 51.32 RCW; RCW 51.36.010.  We will not here attempt to decide which forms of workers' compensation may be set off against payments pursuant to RCW 41.26.150 but will merely state the general proposition that the setoff is limited to benefits that can be interpreted as payments for medical services for the LEOFF member.

             Moving on to the other parts of your second question, we conclude that the county is not entitled to treat either a social security retirement allowance or a LEOFF I pension payment as a setoff against the medical expenses payable by the county under RCW 41.26.150.

             While the language of subsection (2) is somewhat ambiguous in referring to "social security including the changes incorporated under Public Law 89-97" and referring to "other pension plan", we note again that subsection (1) of the statute refers to "necessarymedical services not payable from some other source as provided for in subsection (2)".  Thus, we conclude the legislature intended that only those social security or pension payments which are payments for medical services be set off against the expenses required to be paid by an employer pursuant to RCW 41.26.150.  A statute should be construed to carry out the intent of the legislature.  State v. Neslund, 103 Wn.2d 79, 690 P.2d 1153 (1984).

             Again, we emphasize that we are not attempting to delineate the precise types of federal benefit plans, state and local pension plans, or private insurance plans that might be available as setoffs.  These programs present such a vast array of provisions  [[Orig. Op. Page 9]] that it would be necessary to study each one individually before deciding whether it constitutes "another source" for the payment of "necessary medical expenses" as defined in RCW 41.26.150.

             However, we do note that there is nothing in RCW 41.26.150 to indicate that a general retirement allowance, such as that payable under federal social security (old-age and survivors insurance (see 42 U.S.C. § 402)) or under a public or private pension system such as the LEOFF system itself, was intended to be applied against the necessary medical expenses otherwise payable by the employer.  These benefits were not intended to cover medical care but are payable upon the occurrence of other events, such as reaching a certain age or surviving the death of a spouse or parent.  They are thus not sources of payment for medical services as envisioned by RCW 41.26.150.

             This is particularly obvious in the case of LEOFF pensions themselves.  A LEOFF member who retires from service is entitled to a monthly retirement allowance computed pursuant to RCW 41.26.100.  A LEOFF member who retires for disability is entitled to a monthly retirement allowance computed pursuant to RCW 41.26.130.  If the amounts received under either of those statutes were intended to be set off against the sickness or disability benefits paid by the employer under RCW 41.26.150, the effect would be to shift back to the employee the burden of covering sickness or disability, a result inconsistent with the obvious intent behind the statute.

             Because the right to receive disability benefits at employer expense is conferred in a section separate from the right to receive a retirement allowance for either service or disability, we conclude that the legislature did not intend that general retirement benefits be credited against the amounts paid by an employer for necessary medical expenses.

             To summarize, a county may reduce the amount it pays monthly to an applicant by the amount of workers' compensation or any other benefit paid to the applicant as reimbursement for medical expenses but not by amounts received by the applicant for unrelated purposes.

             Question (3):

             Would the answer to Question 2 differ depending on whether the retiree had any dependents?

              [[Orig. Op. Page 10]]

            We answer this question in the negative, primarily because we are unaware of any workers' compensation, social security benefit or other pension benefit intended to reimburse an individual for the costs of medical care (and thus available as a setoff against the employer payment required by RCW 41.26.150) and yet variable in amount depending upon the number of dependents the individual has.  None of the dependent-variable benefits we are aware of are intended as medical expense reimbursement and thus, under the reasoning of our answer to your second question, none could be set off against employer contributions under RCW 41.26.150.

             Question (4):

             Assuming that the county is not fully responsible for the nursing home costs of a retiree, can the county request repayment from the retiree for all or a portion of the amounts previously paid to him?

             We have earlier noted that, especially given the factual assumptions you asked us to make, the county almost certainly is "fully responsible" for the nursing home costs of the retirees in question.  Given the facts as you have presented them, it appears highly unlikely that the county or the local disability board would have any basis for seeking repayment of any of the amounts previously paid out, in the absence of truly extraordinary circumstances such as outright fraud.  Furthermore, absent a clear change of circumstance, it would appear that such cases asMalland v. Dept. of Retirement Systems, 103 Wn.2d 484, 694 P.2d 16 (1985) might prevent the board from reconsidering any earlier determination of eligibility in these cases.

             Question (5):

             Does RCW 41.26.030(22)(iii)(I) limit the amount payable to retirees in nursing homes to medical services and supplies, thereby excluding charges for room and board?

             As indicated in our answer to Question 1 above, we conclude that RCW 41.26.030(22)(iii)(I), by its plain language, defines nursing home care costs as minimum medical services for the purposes of the statute.  Your last question thus must be answered in the negative.

              [[Orig. Op. Page 11]]

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

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

JAMES K. PHARRIS
Sr. Assistant Attorney General

                                                         ***   FOOTNOTES   ***

 1/It is important to distinguish between the "minimum medical services" listed in RCW 41.26.030(2) and the "necessary medical services" mentioned in RCW 41.26.150.  The former statute should not be read as listing medical services that will be provided in each and every instance they are requested by a retiree.  Rather, it merely lists those services that will be provided once a local disability board, in the exercise of its discretion, has determined that such services are "necessary" and therefore payable by the employer under RCW 41.26.150.  For example, even though hospital expenses are included on the list of "minimum services" (see RCW 41.26.030(22)(a)), hospital services in connection with purely elective surgery may be determined by the local disability board not to be "necessary" and therefore the employer would not be required to pay for them.  In addition, RCW 41.26.150 confers some discretion on the local disability board to determine that medical services other than those listed in RCW 41.26.030(22) are "necessary" and therefore payable by the employer.  See Stegmeier v. Everett, 21 Wn. App. 290, 584 P.2d 488 (1978); AGO 1985 No. 7; AGO 1980 No. 18.

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