Aurora v. SECRETARY OF US DHHS, CV 87-3740.

• Decision Date: 11 July 1989
• Docket Number: No. CV 87-3740.,CV 87-3740.
• Citation: 715 F. Supp. 466
• Parties: Marie AURORA, SS # XXX-XX-XXXX, etc., et al., Plaintiffs, v. SECRETARY OF the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — Eastern District of New York

715 F. Supp. 466

Marie AURORA, SS # XXX-XX-XXXX, etc., et al., Plaintiffs, v. SECRETARY OF the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

No. CV 87-3740.

United States District Court, E.D. New York.

July 11, 1989.

Charles Robert, Robert Huber Lerner & Bigler, Rockville Centre, N.Y., for plaintiffs.

Andrew J. Maloney, U.S. Atty. by Bruce H. Nims, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.

MEMORANDUM AND ORDER

WEXLER, District Judge.

Plaintiff Marie Aurora ("Aurora") brings this action to review a final determination of the Secretary of Health and Human Services (the "Secretary") denying medical benefits on the ground that Aurora received only custodial care during a stay at the St. James Nursing Home. Also named as a plaintiff is the Senior Citizens' Coordinating Council of Long Island (the "SCCC"). The SCCC is alleged to be an "umbrella organization" consisting of over twenty-five member organizations with over 15,000 senior citizen members. Although plaintiffs have not interposed a class certification motion, this action has been styled as a class action.

In response to this Court's order that the parties move, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings, the Government has submitted a brief in support of such a motion. Plaintiffs, on the other hand, have submitted a brief discussing several of the Secretary's allegedly illegal practices. Specifically, plaintiffs complain of the Secretary's alleged policy of "non-acquiescence" to the principle of stare decisis, the non-acquiescence to decisions of this Court and the illegal adoption of a level of care standard. After addressing the merits of Aurora's appeal the Court will discuss the status of plaintiffs' purported class action.

I. Aurora's Claim

After a brief stay at Brookhaven Memorial Hospital Aurora was admitted to the St. James Nursing Home (the "Nursing Home"). Upon that transfer plaintiff was notified that Medicare would not cover expenses incurred at the Nursing Home. The decision not to cover these expenses became the subject of an administrative review process that included a hearing before an Administrative Law Judge ("ALJ"). The ultimate administrative ruling upheld the denial of coverage and this appeal followed.

Basically, the resolution of this dispute turns on whether the care received by Aurora during the time period at issue is properly characterized as skilled nursing care or merely as custodial care. If this Court holds that the finding that Aurora received only custodial care is supported by substantial evidence, then this Court must affirm the decision of the Secretary. If, on the other hand, this Court holds that substantial evidence does not support the finding urged by the Secretary but instead, shows that Aurora received skilled nursing and rehabilitative services during her stay at the Nursing Home, the Court must reverse the decision of the Secretary. After a brief discussion of the relevant statutes and regulations, the Court will consider the merits of the parties' claims.

II. Statutory and Regulatory Framework

Part A of Medicare provides basic insurance against the cost of, among other things, post-hospitalization extended care. 42 U.S.C. § 1395d(a)(2)(A). 42 U.S.C. § 1395f provides for the payment, by Medicare, of post-hospitalization expenses if certain conditions are met. Specifically, the services at issue must consist of skilled nursing or rehabilitative care which "as a practical matter can only be provided in a skilled nursing facility on an inpatient basis, for any of the conditions with respect to which the patient was receiving inpatient hospital services." 42 U.S.C. § 1395f(a)(2)(C). The regulations promulgated pursuant to this statute describe, in greater detail, the type of care that is covered by Medicare. Specifically, the regulations define "skilled nursing and skilled rehabilitation services" as services that:

(1) are ordered by a physician;

(2) require the skills of technical or professional personnel such as registered nurses, licensed practical (vocational) nurses, physical therapists, occupational therapists, and speech pathologists or audiologists, and

(3) are furnished directly by or under the supervision of, such personnel.

42 C.F.R. § 409.31(a). See Hurley v. Bowen, 857 F.2d 907, 911 (2d Cir.1988). In addition to setting forth a list of services that qualify as "skilled nursing services," such as the insertion and sterile irrigation and replacement of catheters, see 42 C.F.R. § 409.33(b), and those that do not qualify as "skilled nursing services," such as the administration of routine oral medications, eye drops, and ointments, see 42 C.F.R. § 409.33(d), the regulations recognize that a patient's total health care picture must be considered when determining whether the care at issue qualifies for Medicare coverage. Thus, the regulations note that under certain circumstances the "overall management and evaluation" of a plan of care may constitute skilled nursing services covered by Medicare. 42 C.F.R. § 409.33(a)(1). See Hurley, 857 F.2d at 911.

As an example of a situation where a patient's overall plan of care constitutes skilled nursing care the regulations refer to a patient recovering from a fracture. Because that patient is an older individual with a history of diabetes and heart trouble, his recovery requires, among other things, careful skin care, the administration of appropriate medication, a diabetic diet and observation to detect signs of deterioration in condition resulting from restricted mobility. The regulations note that under these circumstances the management of the plan of care requires the services of a skilled professional. Thus, it is concluded that even if isolated parts of the patient's treatment can be performed by the patient or by a layperson, the overall program of treatment requires the skills of a professional. Accordingly, the patient's treatment is covered by Medicare. Id. See also 42 C.F.R. § 409.32(b) (special medical complications may result in classification of unskilled services as skilled). In a similar vein, the regulations note that when the skills of a professional are required to observe and assess a patient's changing condition, the patient's care will be covered by Medicare. 42 C.F.R. § 409.33(a)(2).

In sum, the regulations adopt a flexible approach to determining when a patient's care is properly classified as skilled nursing or rehabilitative care. Most important to that determination is the question of whether the care at issue requires the services of a skilled professional to administer or monitor the administration of the care.

When determining whether there is a need for skilled nursing care, courts are guided by two principles. "First, the decision should be based upon a common-sense, non-technical consideration of the patient's condition as a whole. Second, the Social Security Act is to be liberally construed in favor of beneficiaries. A claimant nevertheless has the burden of...