Currier v. Leavitt

• Decision Date: 21 May 2007
• Docket Number: Civil No. 06-118-B-W.
• Citation: 490 F.Supp.2d 1
• Parties: Monica CURRIER, Plaintiff, v. Michael O. LEAVITT,<SMALL><SUP>1</SUP></SMALL> Secretary of the United States Department of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Maine

Page 1

490 F.Supp.2d 1

Monica CURRIER, Plaintiff, v. Michael O. LEAVITT,¹ Secretary of the United States Department of Health and Human Services, Defendant.

Civil No. 06-118-B-W.

United States District Court, D. Maine.

May 21, 2007.

Sean P. Ociepka, Augusta, ME, for Plaintiff.

Evan J. Roth, U.S. Attorney's Office, District of Maine, Portland, ME, for Defendant.

ORDER ON PLAINTIFF'S MOTION FOR JUDGMENT AND DEFENDANT'S CROSS MOTION FOR JUDGMENT

WOODCOCK, District Judge.

For nearly a decade, Monica Currier, who suffers from macular degeneration, has been asking Medicare to reimburse her for the purchase of a video magnifier (VM), a device prescribed by her physician that allows her to read. Concluding that the VM fits within the definition of durable medical equipment (DME) and that reimbursement is long overdue, the Court reverses the Medicare Appeals Council's denial of reimbursement.

I. STATEMENT OF FACTS

On December 17, 1997, pursuant to her doctor's prescription, Monica Currier purchased her VM² for $2,436.00 to aid her eyesight.³ Administrative Record at 89(AR).⁴ Since then, Ms. Currier has been seeking reimbursement from Medicare and this Order addresses the latest and final installment in Medicare's denial of her request for reimbursement.

After purchasing the VM, Ms. Currier submitted a bill to Medicare for reimbursement. The Medicare insurer denied her claim on initial review and reconsideration. See Currier v. Thompson, 369 65, 66 (D.Me.2005);⁵ AR at 89-90, 105. She then requested, and received, a hearing before an Administrative Law Judge (ALJ) on January 16, 2001. AR at 127-75. On October 26, 2001, ALJ Lieb concluded that the VM was not reimbursable under Medicare because it was not customarily used for a medical purpose and did not meet the definition of prosthetic device. AR at 50-54. Ms. Currier appealed ALJ Lieb's determination to the Medicare Appeals Council which concluded that the VM was not covered by Medicare because it fell within the statutory exclusion for eyeglasses.⁶ AR at 11-18. The Appeals Council's decision became final and subject to judicial review on March 30, 2004. AR at 3-8. On May 11, 2005, this Court concluded that the VM did not fall within the "eyeglasses" statutory exclusion and remanded the matter to the Secretary for further proceedings. AR at 37-1-50-1.

On July 28, 2006, the Appeals Council again denied Ms. Currier's request for reimbursement, because it concluded that the VM was neither DME nor a prosthetic device. AR at 1-1-24-1. She now seeks to have the decision of the Appeals Council reversed and the Secretary seeks to have it affirmed. Pl.'s Mot.; Def's Mot. for J on the Stipulated Admin. R. (Docke # 13) (Def's Mot.).

II. DISCUSSION

The Medicare Act provides coverage for "medical and other health services." 42 U.S.C. § 1395k(a)(1). The Act defines "[m]edical and other health services" to include "durable medical equipment" and "prosthetic devices." 42 U.S.C. § 1395x(s)(6), (8). The question is whether Ms. Currier's VM constitutes either DME or a prosthetic device, making it reimbursable under Medicare.

A. Durable Medical Equipment

As the Court of Appeal of California observed, "[o]ddly enough, neither [the Act]⁷ nor its accompanying ... regulations, specifically define the critical term, `durable medical equipment,' although [the statute includes] a nonexclusive statutory list of representative medical equipment... ." Blue v. Bonta, 99 Cal.App.4th 980, 986, 121 Cal.Rptr.2d 483 (Cal.Ct.App. 2002). The statute provides as examples:

iron lungs, oxygen tents, hospital beds, and wheelchairs (which may include a power-operated vehicle that may be appropriately used as a wheelchair, but only where the use of such a vehicle is determined to be necessary on the basis of the individual's medical and physical condition and the vehicle meets such safety requirements as the Secretary may prescribe) used in the patient's home....

42 U.S.C. § 1395x(n).

The regulatory definition of DME "focuses not on examples, but rather on qualitative criteria, including the equipment's durability...." Warder v. Shalala, 149 F.3d 73, 76 (1st Cir.1998). Medicare regulations define DME as equipment that: "(1) can withstand repeated use; (2) is primarily and customarily used to serve a medical purpose; (3) generally is not useful to an individual in the absence of an illness or injury; and (4) is appropriate for use in the home." 42 C.F.R. § 414.202. Here, the parties agree that the VM can withstand repeated use and that it is appropriate for use in the home. Pl.'s Mot. at 5; Def's Mot. at 9-10. The only contested issues are whether the VM is primarily and customarily used to serve a medical purpose and whether it is generally not useful to an individual in the absence of an illness or injury.

1. Primarily and Customarily Used to Serve a Medical Purpose

a. Ms. Currier's Contentions

Ms. Currier first argues that the VM is used to serve a medical purpose. In the absence of an express statutory definition of "medical purpose," Ms. Currier references the Merriam Webster Dictionary definition of "medical" as "1: of, relating to, or concerned with physicians or the practice of medicine or 2: requiring or devoted to medical treatment." Pl.'s Mot. at 5. Ms. Currier points out that macular degeneration is a medical condition for which she receives treatment from a physician, citing her physician's prescription for the VM.⁸ Id. at 6; see also AR at 125-126. Ms. Currier argues that the VM is unquestionably used to "serve a medical purpose," as her treating physician prescribed it as medically necessary. Pl.'s Mot. at 6.

Ms. Currier next argues that the VM is "primarily and customarily used" to serve medical purpose. The affidavit of the Marketing Programs Manager for the VM manufacturer states that it was "designed to meet the needs and expectations of low vision users, that the product would have no utility for members of the general public who are not visually impaired, and that the market for the product consisted of individuals who are visually impaired to the point where eyeglasses are not sufficient to enable them to meet a large portion of visual needs." Id. at 6-7; AR at 29-30. Ms. Currier has repeatedly emphasized that she uses the VM exclusively to aid her vision. Pl.'s Mot. at 6-7.

Moreover, Ms. Currier strongly disputes Appeals Council's approach to the "primarily and customarily" criterion, claiming that the Appeals Council seeks to change the standard.

In its decision, the Council argues that [] the constituent parts of a VM could, theoretically, be used to build other devices with uses that go beyond a medical purpose. In particular, the Council argues that since the components of a VM, including a camera, cable, and screen, has been used together in security and surveillance systems and in microfiche and microfilm readers that the primary and customary use of the VM is nonmedical. If the Council's standard were applied to other items considered DME, such as oxygen tents and wheelchairs, then those items would also be excluded from the definition of DME.

Pl.'s Mot. at 7-8 (citations omitted).

b. The Appeals Council Decision

The Secretary argues that the Appeals Council reasonably determined that Ms. Currier's VM is not DME. After reviewing the procedural, factual, and regulatory backdrop of this case, the Appeals Council discussed whether the VM met the requirement that a DME be "primarily and customarily used to serve a medical purpose." 42 C.F.R. § 414.202; AR at 13-1. Noting that the regulations give "little or no information on the meaning of the regulatory standards for DME coverage, including the term, "medical purpose," the Appeals Council went on to review the definition of "low vision." "AR at 13-1. Lastly, it focused on the nature of this device, describing it as a "closed circuit television." Id. Analyzing the dictionary definition of "closed circuit television," the Appeals Council cited the "Encyclopedia of TV" which observed that "a closed circuit television system has `many industrial and scientific applications', but its primary use has been in security and surveillance camera systems." Id. at 13-1-14-1 (quoting McCarthy, Closed Circuit Television at http://vvww.museum.tv/archive s/etv/C/htmlC/closedcircui/closedcircui.htm (July 6, 2006)). The Appeals Council traced the origins of the closed circuit television to the 1930s. AR at 14-1. Notvices with uses that go beyond a medical "basically the same as the components of closed circuit television systems used for security and surveillance, as well as other applications, such as microfiche and microfilm readers in libraries," the Appeals Council concluded that "a magnifying camera and television monitor configured for use by and marketed to the visually imapplied paired does not transform the `primary and customary use' of that system into a `medical purpose'...." Id.

c. Discussion

Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), a court must confront two questions in reviewing an agency's construction of the statute it administers: (1) whether Congress has directly spoken to the precise question at issue; and, (2) if not, whether the agency's answer is based on a permissible construction of the statute. 467 U.S. at 842-43, 104 S.Ct. 2778. If the statute is silent, a court "does not simply impose its own construction on the statute...." Id. at 843, 104 S.Ct. 2778. A court "need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding" Id at 843 n. 11, 104 S.Ct. 2778.

The Secretary concedes that the statute is silent. Def's Mot. at 6. It points out that in applying the second prong of the c Chevron analysis, "a court must give `considerable weight' to the...