Church to Pursue Nursing-Care Suit

US Justice Department will no longer defend federal reimbursements to Christian Scientists

The Christian Science Church vows to keep fighting a lawsuit that seeks to declare unconstitutional federal reimbursement to Christian Science nursing facilities.

The announcement came after the US Justice Department, in a surprise move, decided to switch sides in the lawsuit.

Until last week, the department had supported the position of The First Church of Christ, Scientist, Boston. The church intervened as a defendant in a lawsuit challenging the use of Medicare and Medicaid reimbursements to pay the bills of elderly or low-income Christian Scientists at any of 23 Christian Science nursing facilities across the country.

But Attorney General Janet Reno concluded on Thursday that relevant portions of federal law permitting such payments are unconstitutional because they create a special benefit for members of a single religious group. She decided that the arrangement violates the constitutional separation of church and state.

A federal judge in Minnesota reached a similar conclusion in August, ruling against both the Justice Department and the Christian Science Church, which publishes this newspaper.

An appeal of the judge's decision is pending before the Eighth US Court of Appeals in St. Louis. Briefs have not yet been filed in the case, and oral arguments may not be scheduled for several months. Federal payments to Christian Science nursing facilities will continue while the issue is under appeal.

The Christian Science Church maintains that qualifying Christian Scientists are as entitled as any US taxpayer to reimbursements from Medicare and Medicaid. Although church members rely on prayer for healing, rather than drugs and medical technology, they are required by law to make regular payroll deductions to support the Medicare and Medicaid systems, church officials say.

Under an accommodation written into the original Medicare and Medicaid bills, Congress provided for Christian Scientists to receive reimbursement for certain types of assistance supplied by certified Christian Science nursing facilities. It covers room and board, supplies, and nonmedical nursing care. The work of Christian Science practitioners, which consists solely of prayer, is not paid for under these programs.

"When the Medicare and Medicaid programs were enacted in 1965, Congress intended them to provide health benefits to virtually every poor and senior American," said M. Victor Westberg, a church spokesman. "In order to ensure that all those who pay taxes into these programs may benefit from them, Congress included Christian Science nursing care as part of the benefits to enable Christian Scientists to avail themselves of the programs without having to abandon their religious practices."

Although Medicare and Medicaid were set up primarily to fund medical expenses, for more than 30 years elderly and low-income Christian Scientists have been reimbursed for nonmedical nursing care under the religious accommodation to the Medicare and Medicaid laws. Because these Christian Scientists do not seek medical treatments, which are typically expensive, payments to them are modest compared with reimbursements to the average American under Medicare or Medicaid.

Estimates are that in 1992 reimbursements to Christian Scientists totaled $7.4 million. In that same year, reimbursements to all Americans through Medicare and Medicaid totalled $220 billion.

The issue arose in a lawsuit filed by an Iowa-based advocacy group organized by a former church member, Rita Swan, a church critic. Ms. Swan's group sued the federal government as administrators of the Medicare and Medicaid programs, claiming that Christian Scientists were receiving special treatment by the government in violation of the Constitution. The Justice Department is representing the government in the suit.

Reno's action means that instead of supporting the church's position, Justice Department lawyers will now urge the appeals court to declare the Christian Science provisions unconstitutional.

Lawyers for the church have argued that the provisions are a constitutionally acceptable accommodation of religious beliefs. "The Department of Justice vigorously and ably defended the challenged accommodation in the district court, side by side with the church," Mr. Westberg said. "Those efforts were successful in that the district court found the purpose of the accommodations to be proper, and held the provisions unconstitutional for the narrowest of reasons: that they referred to only one denomination, Christian Science."

In addition to notifying the appeals court of the Justice Department's change of position, Reno sent an 11-page letter to the Senate and House legal counsels. She suggested that Congress might consider drafting a new law to eliminate the constitutional problems that arise in the existing law. Her letter added that the Justice Department "is available to assist Congress ... in attempting to draft new legislation that would address the needs of Christian Scientists and other faiths."

Reno also said the Justice Department would ask the appeals court for a 30-day extension to allow Congress time to consider entering the case to defend the Christian Science accommodation.

Reno says in her letter that her decision came after "extensive deliberation." She said the Justice Department's legal analysis was influenced by several recent US Supreme Court precedents dealing with church-state issues.

"The government has no compelling interest in confining payment for nonmedical nursing services to members of one faith," Reno wrote. "If Congress wished to provide parallel coverage universally for all persons who are religiously motivated to forgo traditional medical care, then the language of the provisions should have been crafted to embrace all faiths."

Lawyers for the church filed a legal brief last summer seeking to have the judge in the case rule that Medicaid and Medicare payments may be made available to anyone, of any religious faith, who seeks nonmedical health care. The judge declined. Reno says that any decision to extend Medicare and Medicaid coverage to nonmedical nursing services should be made by Congress rather than the courts.