Executive Dir. Of The Office Of Vt. Health Access O/b/o Francis Carey v. Sebelius

• Citation: 698 F.Supp.2d 436
• Decision Date: 15 March 2010
• Docket Number: Case No. 2:08-CV-168.
• Parties: EXECUTIVE DIRECTOR OF the OFFICE OF VERMONT HEALTH ACCESS o/b/o Francis CAREY, Plaintiff,v.Kathleen SEBELIUS, Secretary of the United States Department of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Vermont

698 F.Supp.2d 436

EXECUTIVE DIRECTOR OF the OFFICE OF VERMONT HEALTH ACCESS o/b/o Francis CAREY, Plaintiff,v.Kathleen SEBELIUS, Secretary of the United States Department of Health and Human Services,¹ Defendant.

Case No. 2:08-CV-168.

United States District Court D. Vermont.

March 15, 2010.

COPYRIGHT MATERIAL OMITTED

Jacob S. Speidel, Esq., Vermont Legal Aid, Inc., Springfield, VT, for Plaintiff.

Kevin J. Doyle, AUSA, United States Attorney's Office, Burlington, VT, for Defendant.

MEMORANDUM AND ORDER

WILLIAM K. SESSIONS III, Chief Judge.

The Office of Vermont Health Access (“OVHA”), on behalf of Francis Carey, sought review of the Secretary of the United States Department of Health and Human Services' decision denying Carey Medicare Part A home health care coverage for intermittent skilled nursing services rendered from November 14, 2003 through March 2, 2005. The United States Magistrate Judge found the Administrative Law Judge's affirmation of the Secretary's decision to deny reimbursement for the medicare claims was contrary to law and unsupported by substantial evidence. The Magistrate Judge recommended that OVHA's motion to reverse be granted, and the Secretary's motion to affirm be denied, and the matter be remanded for further proceedings. For the reasons below, the Court adopts the Magistrate Judge's Report and Recommendation with a clarification that a Physician's Certification does not equate to an opinion. Rather, the certification is a relevant factor to be assessed in conjunction with the entire record. The Certification in this case was explained and supported by the entire record and in that context should have been afforded substantial weight.

I. Factual Background

The Magistrate Judges' Report and Recommendation described the factual background in detail, familiarity with which is assumed. The Rutland Area Visiting Nurse Association (“RAVNA”) provided home health services to Carey from November 14, 2003 through March 2, 2005. RAVNA submitted multiple claims to Associated Hospital Services (“AHS”, Medicare's fiscal intermediary) for reimbursement for these services. These claims were denied. OVHA, acting as Carey's subrogee, filed requests with AHS for a redetermination of the denial. AHS denied these requests between January 13, 2006 and May 2, 2006 on the grounds that the services provided were not medically reasonable and necessary.

OVHA sought reconsideration from MAXIMUS Federal Services (a Medicare qualified independent contractor). MAXIMUS affirmed the denial of coverage between August 30, 2006 and September 6, 2006. OVHA then requested a hearing before an Administrative Law Judge (“ALJ”). On June 7, 2007, the ALJ determined that OVHA was not entitled to reimbursement, finding that the home health services provided to Carey were not reasonable and necessary for the treatment of Carey's conditions. OVHA requested that the Medicare Appeals Council (“MAC”) review the ALJ decision, and on June 18, 2008 MAC adopted the ALJ decision. Having exhausted all administrative remedies, OVHA filed a Complaint against the Secretary on August 15, 2008.

Treatment notes for the relevant time period (November 2003-March 2005) report that Carey was 81 years old, diagnosed with Alzheimer's disease, ulcerative colitis, and vascular insufficiency of the intestine. Carey was incontinent, and had a colostomy, a history of seizures, poor endurance, impaired vision and hearing, experienced difficulties with chewing and swallowing, and had memory loss to the point of requiring supervision. Carey required assistance on a daily basis, and was on approximately eight different medications.

Nurse notes indicate that during this time period Carey had issues with his colostomy, an incidence of probable seizure, pneumonia, and overall declining health. Daily living assistance was provided by a private, non-skilled caregiver, and RAVNA provided one home health nursing visit and multiple home health aide visits during each respective service period between November 14, 2003 and March 2, 2005. These RAVNA visits were documented with an Outcome and Assessment Information Set (“OASIS”).

Dr. Jeffrey Wulfman, Carey's treating physician during this time period, determined that Carey needed intermittent skilled nursing services. Dr. Wulfman executed Home Health Certifications and Plans of Care (hereinafter Certifications) within two weeks of the beginning date of each service period. He certified that Carey was under his care and that Carey required skilled nursing care. These Certifications were based on RAVNA's Clinical Summaries for Recertification and the OASIS Assessments for each respective period. The Certifications and Plans of Care contain personal information that is specific to Carey's condition and needs. Medical records indicate that Dr. Wulfman did personally see Carey during the service periods and that no other Doctor other than Dr. Wulfman opined on Carey's condition. Dr. Wulfman also prepared a retrospective Physician's Report.

II. Discussion

Under Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987), the Secretary's determination of whether services are reasonable and necessary under the Medicare Act must be based on substantial evidence and be in accordance with correct legal principles. 42 U.S.C. § 405(g). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Gartmann v. Sec'y of United States Dept. of Health & Human Servs., 633 F.Supp. 671, 679 (E.D.N.Y.1986). “In determining whether substantial evidence exists the reviewing court analyzes the record as a whole.” Bodnar v. Sec'y of Health & Human Servs., 903 F.2d 122, 126 (2d Cir.1990). While the reviewing court must defer to the Secretary's supported findings of fact, it “is not bound by the Secretary's conclusions or interpretations of law, or an application of an incorrect legal standard.” Gartmann, 633 F.Supp. at 679. And thus “before the insulation of the substantial evidence test comes into play, it must first be determined that the facts of a particular case have been evaluated in light of correct legal standards.” Id. at 680.

The Medicare Act, 42 U.S.C. § 1395 et seq., establishes the federal program of health insurance for the elderly. Connecticut Dept. of Social Servs. v. Leavitt, 428 F.3d 138, 141 (2d Cir.2005). Under the program, claimants hold the burden of proving entitlement to Medicare benefits. Friedman v. Sec'y of Dept. of Health and Human Servs., 819 F.2d 42, 45 (2d Cir.1987). And while physician's certification of the necessary 42 U.S.C. § 1395n(a)(2)(A) facts does not bind the Secretary to a finding of eligibility Bodnar, 903 F.2d at 125, the remedial purpose of the Medicare Act does require that the Act be broadly construed. Gartmann, 633 F.Supp. at 679.

“The Medicare Statute unambiguously vests final authority in the Secretary ... to determine whether a service is reasonable and necessary, and thus whether reimbursement for services should be made.” Bodnar, 903 F.2d at 125 (citing 42 U.S.C. § 1395ff(a); Heckler v. Ringer, 466 U.S. 602, 617, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984)). Under 42 U.S.C. § 1395y(a)(1)(A) the Secretary may not provide reimbursement for services that are “not reasonable and necessary for diagnosis or treatment of illness or injury.” New York ex rel Holland v. Sullivan, 927 F.2d 57, 58-59 (2d Cir.1991).

Home health care services reimbursement is contingent on showing that the claimant meets the requirements of 42 C.F.R. § 409.42(a)-(d). The disputed issue in Carey's case was whether he required intermittent skilled services in satisfaction of part (c)(1). OVHA argued Carey qualified for coverage and that the Secretary's denial of coverage was not supported by substantial evidence and violated Medicare laws and regulations. OVHA specifically argued that the Secretary erred in her finding that the services were “custodial” in nature, that Carey was clinically stable during the service periods, and that Carey's non-skilled caregiver adequately cared for Carey.

The ALJ determined that the home health services provided to Carey were not reasonable and necessary and thus were not covered by Medicare A. The ALJ noted Carey's medical history and existing conditions, but concluded that care could have been and was provided safely and effectively by non-skilled individuals. The ALJ gave minimal weight to Dr. Wulfman's Certification and Physician's Report.

The Magistrate Judge recommended remanding for further proceedings. He found the ALJ erred in her application of the law with respect to its treatment of

(a) the Certifications and Report of Dr. Wulfman;

(b) the stability of Carey's medical condition during the relevant period; and

(c) the care provided by Carey's private, non-skilled caregiver.

A. Treating Physician's Opinion

The Magistrate Judge first concluded that the ALJ erred in the assessment of Dr. Wulfman's Certifications and his retrospective Report. Dr. Wulfman certified that Carey was under his care and that Carey required skilled nursing services. Dr. Wulfman also prepared a retrospective Physician's Report where he reported treating Carey for various conditions and stated that Carey “needed very intense daily care.” However, the ALJ did not mention Dr. Wulfman's Certifications in her written decision, and mentioned the Report only to state that it constituted non-clinical evidence that was prepared after the dates of service at issue, and thus assigned it minimal probative value.

In finding error in the ALJ's treatment of the Certifications and the Report, the Magistrate Judge did not adopt the treating physician's rule. The Magistrate Judge acknowledged that the Second Circuit has left to the Secretary the initial determination of the weight to be given to a treating physician's opinion in Medicare coverage determinations. New York ex. rel Stein v. Sec'y of Health & Human Servs., 924 F.2d 431, 433-34 (2d Cir.1...