Eisman v. Mathews, Civ. A. No. M-75-1169.

• Decision Date: 25 February 1977
• Docket Number: Civ. A. No. M-75-1169.
• Parties: William Perry EISMAN, Personal Representative of the Estate of Bertha Eisman, Deceased v. F. David MATHEWS, Secretary of Department of Health, Education & Welfare.
• Court: U.S. District Court — District of Maryland

428 F. Supp. 877

William Perry EISMAN, Personal Representative of the Estate of Bertha Eisman, Deceased v. F. David MATHEWS, Secretary of Department of Health, Education & Welfare.

Civ. A. No. M-75-1169.

United States District Court, D. Maryland.

February 25, 1977.

William Perry Eisman, pro se.

Jervis S. Finney, U. S. Atty., and Virginia S. Draper, Asst. U. S. Atty., Baltimore, Md., for defendant.

OPINION

JAMES R. MILLER, Jr., District Judge.

In this action plaintiff, William Perry Eisman, as the personal representative of the Estate of Bertha Eisman, seeks judicial review of the Secretary's final decision which denied "Medicare" payments under Title XVIII of the Social Security Act for certain hospital expenses of the deceased, Bertha Eisman, and which ordered repayment to the Secretary of earlier disbursements found to have been mistakenly paid by the Secretary on behalf of Mrs. Eisman. The jurisdiction of this court to review the Secretary's determination arises under 42 U.S.C. §§ 405(g) and 1395ff(b).

There is no dispute between the parties as to the applicable facts. The question is one of law and is now before the court on cross-motions for summary judgment.

Under the Act, Medicare will make payments for "inpatient hospital services" provided to an eligible patient for a single "spell of illness" for a maximum period of 150 days, 42 U.S.C. § 1395d(a)(1), and will make payments for "post-hospital extended care services" for that same "spell of illness" for a maximum period of 100 days, 42 U.S.C. § 1395d(a)(2). If a Medicare beneficiary suffers successive "spells of illness," a declining amount of coverage for "inpatient hospital services" is provided for each successive "spell of illness," 42 U.S.C. § 1395d(b)(1), while coverage for "post-hospital extended care services" remains at a constant 100 days for each successive "spell of illness," 42 U.S.C. § 1395d(b)(2). Thus, whether an individual, who is otherwise qualified, receives coverage from Medicare for "extended care services" after payments on that individual's behalf for 150 days of "inpatient services" and 100 days of "extended care services" for a first "spell of illness" is determined by whether the individual has suffered a second "spell of illness," thereby renewing the coverage.

The Act provides that a second "spell of illness" may not begin until the first "spell of illness" has ended, as can be seen from the following definition in 42 U.S.C. § 1395x(a)(1) and (2):

"(a) The term `spell of illness' with respect to any individual means 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 a skilled nursing facility."

Under the foregoing definition, the beginning of a "spell of illness" is marked by the first receipt of services while, in contrast, the termination of that "spell of illness" occurs 60 days after release from a hospital or "skilled nursing facility," irrespective of the type of services, if any, being rendered to the patient while in that facility. The dispute here arises from the apparent distinction between the criteria utilized to determine the beginning of a "spell of illness" and that used to determine its termination.

The Secretary contends that a "spell of illness" may not be considered to have ended under the statute so long as the ill person still resides at a hospital or a "skilled nursing facility" within which that ill person resided during the "spell of illness." The plaintiff here contends that a "spell of illness" terminates 60 consecutive days after the ill person no longer receives "extended care services" even though that person may still be residing in a "skilled nursing facility."

The difference between the two views of the law arises in this case because Mrs. Eisman had previously exhausted her maximum benefit period of 150 days for "inpatient services" and her 100-day maximum benefit period for "extended care services" when she was transferred from Levindale Hebrew Geriatric Center and Hospital (Levindale), where she had been receiving "custodial care" for more than 60 consecutive days immediately prior to the time of the transfer (Tr. 15-16) although she then occupied a room where "skilled care" could have been provided (Tr. 187-189). She was transferred to Sinai Hospital, due to an intestinal obstruction which was later discovered to be cancerous (Tr. 185, 194), where she remained for one month after which she transferred back to Levindale on January 17, 1972. She remained at Levindale until her death on October 4, 1973. From the time of her readmittance to Levindale until March 16, 1972, Mrs. Eisman occupied a room "certified" under the Medicare Program as one in which the occupant received "skilled care" while after that date until the time of her death, she occupied rooms in Levindale which were not in the portion of the facility certified to participate in the Medicare Program (Tr. 176, 189). If Mrs. Eisman's first "spell of illness" had ended before her transfer to Sinai Hospital, then a second "spell of illness" commenced upon her transfer to Sinai and Medicare payments should properly have been paid for her 31-day stay at Sinai and for 100 subsequent days during which she received "extended care services" upon her readmittance to Levindale.

The definition of a "skilled nursing facility," for the purpose of determining the end of a "spell of illness" under the requirement of 42 U.S.C. § 1395x(a)(2), is found in 42 U.S.C. § 1395x(j)(1) to be a facility which:

"is primarily engaged in providing to inpatients (A) skilled nursing care and related services for patients who require medical or nursing care, or (B) rehabilitation services for the rehabilitation of injured, disabled, or sick persons."

See 42 U.S.C. § 1395x(j)(15) (2d sentence).

The Act provides that a "spell of illness" ends when the individual is no longer "an inpatient of a skilled nursing facility." 42 U.S.C. § 1395x(a)(2) (emphasis added). The term "inpatient" is not defined in the Act. Webster's Third New International Dictionary defines an "inpatient" as a patient who "receives lodging and food as well as treatment." A "patient" is defined as "a sick individual especially one awaiting or under the care and treatment of a physician or surgeon." Id. Thus an "inpatient" at a "skilled nursing facility" is an individual who receives lodging and food as well as the treatment provided by the facility which qualifies it as such a "skilled nursing facility," that is, "skilled nursing care and related services for patients who require medical or nursing care, or rehabilitation services for the rehabilitation of . . . sick persons." 42 U.S.C. §1395x(j)(1). An individual who resides at a "skilled nursing facility" without receiving its "skilled nursing care," while a resident of the facility, is not technically an "inpatient." Fineberg v. Secretary of Health, Education and Welfare, 363 F.Supp. 1382 (W.D.N.Y.1973); see contra, Brown v. Richardson, 367...