Fox v. Bowen
| Decision Date | 13 January 1987 |
| Docket Number | Civ. No. H-78-541 (JAC). |
| Citation | 656 F. Supp. 1236 |
| Court | U.S. District Court — District of Connecticut |
| Parties | Blanche FOX, Representative of the Estate of Walter Fox; David Blotner, Francis Ehrsam, individually and on behalf of all others similarly situated v. Otis R. BOWEN, Secretary, United States Department of Health and Human Services |
Charles C. Hulin, Judith Stein Hulin, William A. Dombi, Willimantic, Conn. for plaintiffs.
Lawrence Burstein, Boston, Mass., for defendant.
TABLE OF CONTENTS
Page
I. Introduction 1237
II. Findings of Fact
A. Description of the Plaintiff Class 1238
B. Plaintiffs' Need for Skilled Physical Therapy 1239
C. Defendant's Practice of Denying Medicare Coverage 1239
D. The Effects on Plaintiffs of Denials of Benefits 1240
E. Defendant's Coverage Determination Process 1241
F. Administrative Review of Denials of Benefits 1242
III. Conclusions of Law
A. Jurisdiction 1242
B. Merits
1. The Intermediaries' Practice of Denying Physical Therapy Claims 1245
2. The Secretary's Procedures for Reviewing SNF Coverage Decisions 1250
C. Relief 1251
IV. Conclusion 1251
INTRODUCTION
This action challenges practices and procedures that allegedly have been used by the Secretary of the United States Department of Health and Human Services ("the defendant" or "the Secretary")1 to deny Medicare benefits for physical therapy to a certified class of elderly Connecticut residents ("the plaintiffs").2
The plaintiffs contend that the defendant's biased procedures for reviewing Medicare claims and his practice of routinely denying Medicare coverage for certain categories of physical therapy rendered by skilled nursing facilities ("SNFs") violate their rights under Part A of Title XVIII of the Social Security Act ("the Medicare Act"), 42 U.S.C. §§ 1395-1395zz, and the Due Process Clause of the Fifth Amendment to the United States Constitution. The Medicare Act entitles members of the plaintiff class to payment of the "reasonable and necessary" costs of "post-hospital extended care services for up to 100 days during any spell of illness." 42 U.S.C. §§ 1395d(a)(2), 1395y(a)(1). These services are covered under Part A of Medicare only if the patient receives "skilled nursing care ... or other skilled rehabilitation services, which as a practical matter can only be provided in a skilled nursing facility on an inpatient basis." 42 U.S.C. § 1395f(a)(2)(C).
The Secretary may contract with private organizations (known as "fiscal intermediaries") for assistance in the administration of the Medicare Act.3 The intermediaries determine the amount of Medicare reinbursement payable to SNFs and other service providers. 42 U.S.C. § 1395h(a). See generally Kraemer v. Heckler, 737 F.2d 214, 214-217 (2d Cir. 1984) ("Kraemer") (). A decision by an intermediary denying coverage under Part A of the Medicare Act is subject to administrative and judicial review. 42 U.S.C. § 1395ff.
The plaintiffs request that the court enjoin and declare illegal the defendant's methods for determining eligibility for physical therapy coverage under Part A of Medicare and impose a new set of procedures in their place. In addition, the plaintiffs ask that the defendant be required to reconsider their claims for physical therapy benefits that previously were denied.
Upon a consideration of the full record of this case, including the testimony and exhibits offered at the four-day non-jury trial and the post-trial findings and memoranda submitted by the parties, the court enters the following findings of fact and conclusions of law pursuant to Rule 52(a), Fed.R. Civ.P.
1. There are approximately 20,000 patients residing in Connecticut's 220 SNFs. Certified Official Transcript of Trial ("Tr.") at 143. The typical patient is in his early to mid-80s. Tr. 143, 313. Many of these
patients, perhaps as many as 50 percent, require physical therapy services in the nursing home. Tr. 192, 257.
2. Members of the plaintiff class often receive physical therapy as treatment for strokes, fractured hips, and other broken bones. Tr. 12, 246, 40-41.
3. The typical class member is afflicted with multiple disabilities that may complicate and prolong his rehabilitation. Tr. 50, 283, 311-312, 316. See 42 C.F.R. § 409.33(a)(1) ().
4. Physical therapy is a skilled profession. A physical therapist can achieve greater success in the rehabilitation of a patient than can a person who is untrained in physical therapy. Tr. 50, 75, 283-284, 293, 337.
5. Patients vary considerably in the extent and the speed of their response to a program of physical therapy. Tr. 316. See Plaintiffs' Exhibit 26 (Health Insurance Manual 13 "HIM-13") at § 3101.8B(c), (d). For example, some stroke patients may respond slowly to physical therapy during their first weeks in the nursing home because of the effects of medication and emotional trauma. Tr. 22-24. It is therefore difficult to predict the physical therapy that will be required by a particular patient based on the experience of other patients. Tr. 22-24, 288.
6. The court credits the uncontroverted testimony of the plaintiffs' medical experts that daily skilled physical therapy is often required during each of the following stages of the patient's rehabilitation:
(a) Patients often need daily skilled physical therapy during the "non-weight-bearing" stage of rehabilitation. Tr. 52, 278-279, 285, 315.4 This is the stage at which the patient cannot place his weight on his injured leg or foot. Such therapy may be necessary, for example, to prevent the patient's joints from stiffening and his muscles from wasting while his injury heals. Tr. 51, 285.
(b) A patient whose arm or leg has been amputated may often require daily skilled physical therapy during the period before he is fitted for a prosthesis. Amputees who do not receive physical therapy during this period may develop wasted stumps and contractures in their hips and may have a more difficult time when therapy eventually is begun. Tr. 84-85.
(c) A patient may require daily skilled physical therapy in order to maintain as well as to increase body strength and function. Tr. 317. For example, a patient with a hip fracture may require daily skilled physical therapy to prevent the remainder of his body from deteriorating during the period in which he is immobilized.
(d) A patient may require daily skilled physical therapy even if he is able to "ambulate" (that is, walk with the assistance of a walker or crutches) for up to 50 feet with supervision. Tr. 318-319.
(e) Passive "range of motion" exercises (that is, exercises in which the affected body part is moved by another person) may require the skilled supervision of a physical therapist on a daily basis. Tr. 73-74, 337.
(f) A patient may require daily skilled physical therapy for a period in excess of two weeks. Tr. 322.
7. The defendant grants Medicare coverage for physical therapy to only a small number of patients who demonstrate a rapid recovery of body function. Even these patients generally receive no more than two weeks of coverage. Tr. 13-14, 22, 54, 282, 344.
8. The defendant may deny coverage for daily skilled physical therapy even when such therapy has been ordered by the patient's treating physician. Tr. 33, 239-240.
9. It is the defendant's practice to deny coverage for physical therapy received during the "non-weight-bearing" stage of rehabilitation. Tr. 13, 51-52, 71, 285, 315.
10. It is the defendant's practice to deny coverage for physical therapy administered to amputees who have not yet been fitted with prostheses. Tr. 70-71, 84-85.
11. It is the defendant's practice to deny coverage to patients receiving "maintenance" physical therapy. Tr. 317-318.
12. It is the defendant's practice to terminate coverage for physical therapy when the patient is able to walk with the supervision of an aide. Tr. 18. However, as was established by uncontroverted expert testimony, such patients still may not recover fully unless they receive additional skilled physical therapy on a daily basis. Tr. 18-20, 84.
13. It is the defendant's practice to terminate coverage once the patient is able to ambulate 50 feet with supervision. Tr. 61. However, as was established by undisputed expert testimony, the distance that a patient is able to ambulate with supervision is not, by itself, determinative of his need for daily skilled physical therapy. Tr. 318.
14. It is the defendant's practice to deny coverage for physical therapy that consists of passive "range-of-motion" exercises. Tr. 74-76.
15. The reason typically advanced by an intermediary to justify the denial of Medicare coverage is that the physical therapy required by the patient is not "skilled." Tr. 74-75. However, as was established by credible expert testimony, the intermediaries often deny coverage without giving adequate consideration to the physical therapy skills required in a particular case. Tr. 102, 311, 313, 344.5
16. Before acting on a claim, SNF personnel may telephone the intermediary to...
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