Joseph M. Beringhelle v. Elliott L. Richardson, Secretary of Health, Education and Welfare

Appellants are physical therapists licensed to practice by the State of California under a so-called “grandfather” statute, Cal.Bus. & Prof.C. § 2626. However, when they filed their action in the District Court on July 16, 1969, they did not meet the educational standards then prescribed by the Secretary of Health, Education and Welfare for physical therapists performing certain types of work at health care facilities which seek to qualify for federal payments under the Health Insurance for the Aged Act (Medicare), 42 U.S.C. § 1395 et seq. The Secretary’s regulations then in effect appeared at 20 C.F.R. §§ 405.1126 and 405.1229. The purpose of the appellants’ action was to have the regulations declared invalid as applied to them and to other licensed California physical therapists similarly situated. The trial court upheld the Secretary’s regulations and entered a judgment of dismissal, and plaintiffs appealed.

While the appeal was pending, the Secretary amended his regulations. He then moved to dismiss the appeal as moot. We heard the appeal and the motion together.

The Secretary’s new regulation, 20 C. F.R. §§ 405.1126 and 405.1229 as amended, 36 Fed.Reg. 19249, now contains a…