registered pharmacist, and other registered assistants as needed.

Nonetheless, a consulting pharmacist may, of course, be exposed to a certain degree of personal liability by virtue of his position. For example, his failure to fulfill properly the obligations he has assumed conceivably could subject him to accountability for the consequences of his inaction or improper actions within the scope of his contractual undertaking with the hospital. However, on the assumption that the consulting pharmacist performs the consultative and overall review services set forth in the regulations, there seems to be no conceivable circumstance under which he could be found liable for damages suffered by a patient of the hospital attributable to acts for which he would be responsible. The hospital, in compliance with the regulations, would have imposed on him no duties of supervision over the dispensing of drugs to patients. He is viewed as a part-time advisor on drug room policy (along with the medical staff) and a part-time reviewer of the efficacy of such policies in practice. He would be expected, perhaps, to inform the staff of the content of the policies and practices established by the drug and therapeutics committee of which he would be a member, but he would not be required to supervise each employee of the hospital in the effectuation of the drug room rules on a routine and continuing basis, as would, for example, the dispensing druggist in a hospital pharmacy. The essential element of liability for negligence the causal connection between the injury and the responsibility therefor either by direct or by imputed negligence, seems wholly lacking in the relationship between pharmacist and hospital required for compliance with the regulations.

The other facet of the general question relates to potential liability under a theory of statutory negligence by which the violation of a duty imposed by a statute which is designed to protect a given class of persons, results in the violator's liability to any person in the protected class who sustains injury of a type the statute seeks to prevent.

As with the discussion of common law liability, we do not believe this concept to be properly applicable as a source of potential liability for consulting pharmacists under the Medicare program. We are doubtful of its applicability first of all, because these are not statutes but administrative regulations. Courts have taken differing views as to whether the rule of statutory negligence extends to violations of administrative rules and regulations and many jurisdictions have held that "violation of a rule adopted by an administrative body cannot give rise to statutory liability without regard to negligence." Whether or not administrative regulations may have the weight of statutory law in any jurisdiction, more important, in our view, is the fact that there is no duty created by these regulations, and they do not under any approach impose an affirmative obligation on the pharmacist or the hospital. The regulations are established solely as the criteria by which a hospital can qualify for reimbursement under the Medicare program and failure to adhere to them means only that the institution is not eligible to participate in this program.

°65 C.J.S., "Negligence," Section 19(9).

Finally, however, it must be noted that a person who contracts to perform a function is accountable for injuries caused by his negligent failure to act in accordance with his undertaking. To the extent that there is a practice of a pharmacist lending his professional name to a hospital to give the color of compliance, such a practice may carry with it the risks of liability. Furthermore, the development of drug room standards at variance with the accepted professional standards for drug control might be viewed as negligence. These would be instances of nonfeasance and misfeasance arising from failure to fulfill the consultative functions contemplated by this regulation.

In the light of the foregoing considerations, concerning the meaning and effect of section 405.1027 of Regulations No. 5, and its application to the potential civil liability of consulting pharmacists under the Medicare program, it would appear that the acceptance and proper fulfillment by a pharmacist of the consultant role contemplated by the regulations would not subject him to liability for negligence.

SECTIONS 1812(b), 1812(e), and 1814(a).-DURATIONAL LIMITS ON INPATIENT HOSPITAL AND PSYCHIATRIC HOSPITAL SERVICES REQUEST FOR PAYMENT

SSR 67-31

Where an insured individual receives covered inpatient hospital or psychiatric hospital services but fails or refuses to sign the request for payment required by section 1814(a) of the Act, and as a result no payment is made under Part A of title XVIII of the Act to the provider of such services, held, such services are nevertheless included in determining the remaining number of inpatient hospital days in a spell of illness or the remaining total of inpatient psychiatric hospital days in the individual's lifetime for which payment may be made under Part A, since the individual's receipt of covered services began a spell of illness and the counting of days within the durational limits of coverage provided by section 1812(b) of the Act.

Section 1812(b) of the Social Security Act establishes, among other things, the limits on payment for inpatient hospital days in a spell of illness and for inpatient psychiatric hospital days in an individual's lifetime. Thus, section 1812(b) provides in pertinent part that:

Payment under this part [Part A of Title XVIII of the Act] for services furnished an individual during a spell of illness may not 。 be made for(1) inpatient hospital services furnished to him during such spell after such services have been furnished to him for 90 days during such spell;

or (3) inpatient psychiatric hospital services furnished to him after such services have been furnished to him for a total of 190 days during his lifetime.

Section 1814(a) of the Act requires that the insured individual sign a request for payment for services furnished him before payment can be made to the provider of such services. Section 1814(a) provides in pertinent part as follows:

payment for services furnished an individual may be made to providers of services

only if

(1) written request, signed by such individual except in cases in which the Secretary finds it impracticable for the individual to do so, is filed for such payment in such form, in such manner, within such time, and by such person or persons as the Secretary may by regulation prescribe

In connection with the foregoing provisions of the Act, advice has been requested as to whether covered inpatient hospital or psychiatric hospital services furnished an insured individual (for which payment has not been made because he has failed or refused to sign the request for payment required by section 1814(a) of the Act) are included in determining the number of inpatient hospital days in a spell of illness, or the total of inpatient psychiatric hospital days in the individual's lifetime, for which payment may be made under Part A. If such services are not so includible, then, in effect, an individual may choose which part of his illness and attendant institutional care and treatment will be paid for by Part A, that is, he may elect to pay for covered inpatient hospital services out of his own pocket and then claim payments under Part A for a full 90 days of additional inpatient hospital services, beginning less than 60 days from his last discharge.

Section 1812(a) of the Act provides as pertinent to this question:

The benefits provided to an individual by the insurance program under this part [Part A] shall consist of entitlement to have payment made on his behalf (subject to the provisions of this part) for

(1) inpatient hospital services for up to 90 days during any spell of illness . (Emphasis supplied.)

The term "spell of illness" is defined in section 1861 (a) of the Act as: a period of consecutive days-(1) beginning with the first day (not included in a previous spell of illness) (A) on which such individual is furnished inpatient hospital services or extended care services, and (B) which occurs in a month for which he is entitled to benefits under part A, and

(2) ending with the close of the first period of 60 consecutive days thereafter on each of which he is neither an inpatient of a hospital nor an inpatient of an extended care facility. (Emphasis supplied.)

In the light of the foregoing provisions of section 1812(a) and 1861 (a) of the Act, it is necessary to determine whether an individual must sign a request for payment in order to become "entitled." For if he must sign a request for payment in order to become "entitled," a spell of illness will not begin unless he does so, and therefore services furnished him will not count against the durational limits of coverage in a spell of illness.

However, section 226 of the Act and section 103 of the Social Security Amendments of 1965 (Public Law 89-97) are determinative of the requirements for entitlement to Part A benefits. Under section 226, an individual is entitled to hospital insurance benefits if he is 65 years of age and either (a) is entitled to monthly insurance benefits under section 202 of the Act or (b) is certified as a qualified railroad retirement beneficiary under the Railroad Retirement Act. A presently uninsured individual, if he is age 65 and is otherwise in conformance with the requirements of section 103 of P.L. 89-97, is deemed solely for purposes of section 226 of the Act to be entitled to monthly insurance benefits under section 202 of the Act, and therefore is entitled to hospital insurance benefits under Part A.

Section 1814(a) (1) of the Act, quoted above, provides that payment may not be made to a provider for services furnished an individual unless a request for payment is submitted which is signed by such individual (except in cases in which the Secretary finds it impracticable for him to do so). However, this is only a condition precedent to payment, and entitlement as such rests upon the individual's meeting the requirements of section 226 of the Act or section 103 of P.L. 89-97. It follows that a spell of illness begins when the individual is furnished covered inpatient hospital services, regardless of whether or not he has signed a request for payment. Section 1812(e) of the Act provides in pertinent part that for purposes of determining the durational limits on coverage in section 1812(b), quoted above:

* inpatient hospital services [and] inpatient psychiatric hospital services *** shall be taken into account only if payment is or would be, except for this section or the failure to comply with the request and certification requirements of or under section 1814(a), made with respect to such services under this part. (Emphasis supplied.)

It is concluded, therefore, that where the only reason that payment for Part A covered services cannot be made is that the insured individual failed to sign a request for payment, the effect of section 1812(e) is that such services still count in determining the durational limits of coverage under section 1812(b).

Accordingly, it is held that, regardless of the fact that no payment has been made for covered inpatient hospital or psychiatric hospital services furnished an individual because the individual failed or refused to sign a request for payment, such services are included in determining the remaining number of inpatient hospital days in a spell of illness or the remaining total of inpatient psychiatric hospital days in the individual's lifetime for which payment may be made under Part A, since the individual's receipt of covered services began a spell of illness and the counting of days within the durational limits of coverage.

SECTION 1861 (a) and (j).-HOSPITAL INSURANCE BENEFITS-DURATION OF SPELL OF ILLNESS-INPATIENT IN EXTENDED CARE FACILITY

SSR 69-62

An individual entitled to hospital insurance benefits was discharged on October 7, 1967, from an extended care facility where she had been receiving posthospital services, after having used up 100 days of such services in her current spell of illness, and was readmitted to a hospital on December 4, 1967. Upon discharge, she returned to the extended care facility on December 18, 1967. Held, since less than 60 days had elapsed between her discharge from the extended care facility and the date of her readmission to the hospital, a new spell of illness did not start on the latter date; her subsequent readmission to the extended care facility on December 18, 1967, occurred within the same spell of illness; and she had already exhausted the number of days for which payment could be made on her behalf for posthospital extended care services during that spell of illness.

Under the provisions of sections 1812(a) and 1861 (i) of the Social Security Act, an individual entitled to hospital insurance benefits under Part A is eligible to have payment made on his behalf to a participating extended care facility for up to 100 days of extended care services furnished to him in a spell of illness, if he was transferred to such facility within 14 days after discharge from a hospital in which he was an inpatient for not less than 3 consecutive days.

The term "spell of illness" is defined in section 1861 (a) of the Social Security Act as meaning a period of consecutive days

(1) beginning with the first day (not included in a previous spell of illness) (A) on which such individual is furnished inpatient hospital services or extended care services, *** and

(2) ending with the close of the first period of 60 consecutive days thereafter on each of which he is neither an inpatient of a hospital nor an inpatient of an extended care facility.

The facts are as follows: L, a hospital insurance beneficiary, was admitted to the A Community Hospital on May 14, 1967, suffering from congestive heart failure. On May 23, 1967, she was discharged from the hospital and admitted to the B Sanitorium, where she remained until discharged for immediate admission to the C Convalescent Hospital on June 30, 1967. She remained at the C Convalescent Hospital as an inpatient until her discharge on October 7, 1967. On December 4, 1967, after sustaining a fractured hip, L was readmitted to the A Community Hospital and remained there until discharged to the C Convalescent Hospital on December 18, 1967, where she was an inpatient until February 4, 1968.

Benefits were paid on L's behalf to the B Sanitorium and the C Convalescent Hospital for the posthospital services she received while an inpatient in those extended care facilities during the first 100 days immediately following her intitial discharge from the A Hospital. However, her eligibility for extended care service during this initial spell of illness was exhausted on August 30, 1967.

Since less than 60 days elapsed between L's discharge from the C Convalescent Hospital on October 7, 1967, and her second admission to A Hospital on December 4, 1967, it was determined that the later admission did not initiate a new spell of illness, and that no payment could be made on L's behalf for the services she received at the extended care facility beginning December 18, 1967. This determination was protested on the basis that L did not require the continuing attention of trained medical and paramedical personnel after September 16, 1967, and, therefore lost her inpatient status on September 16, 1967, when the only services rendered her were less than skilled nursing care, and not on October 7, when she was actually discharged.

The issue to be resolved here is whether a new spell of illness' as defined in section 1861 (a) of the Act, began on December 4, 1967, with L's readmission to the A Community Hospital, so as to permit program payment on her behalf to be made to the C Convalsecent Hospital for inpatient services furnished L commencing December 28, 1967.

The beginning of a spell of illness, as defined in section 1861 (a) supra,