Friedman v. Secretary of Dept. of Health and Human Services

• Decision Date: 18 May 1987
• Docket Number: No. 492,D,492
• Citation: 819 F.2d 42
• Parties: , Medicare&Medicaid Gu 36,323 George FRIEDMAN, Plaintiff-Appellant, v. SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. ocket 86-6159.
• Court: U.S. Court of Appeals — Second Circuit

Page 42

819 F.2d 42

17 Soc.Sec.Rep.Ser. 788, Medicare&Medicaid Gu 36,323

George FRIEDMAN, Plaintiff-Appellant, v. SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Defendant-Appellee.

No. 492, Docket 86-6159.

United States Court of Appeals, Second Circuit.

Argued Nov. 10, 1986.

Decided May 18, 1987.

Charles Robert, Robert, Huber & Lerner, Hempstead, N.Y., for plaintiff-appellant.

Robin L. Greenwald, Asst. U.S. Atty. (Andrew J. Maloney, U.S. Atty. for E.D.N.Y., Robert L. Begleiter, Asst. U.S. Atty., of counsel), for defendant-appellee.

Before KAUFMAN, WINTER, and MAHONEY, Circuit Judges.

WINTER, Circuit Judge:

This is an appeal from Judge Korman's decision upholding the denial by the Secretary of the Department of Health and Human Services ("Secretary") of Medicare benefits for a portion of Friedman's hospital stay during 1982. We initially issued a summary order affirming the judgment under our Rule 0.23, but have since vacated that order at the government's request. We again affirm, but on a different rationale.

BACKGROUND

George Friedman was admitted to the intensive care unit of Southampton Hospital on January 28, 1982, for treatment of head injuries sustained in a fall. Friedman, then age 79, also suffered from Parkinson's disease and phlebitis. He was diagnosed on admission as having a probable skull fracture with subdural hematoma. A Dr. Flores examined Friedman and ordered administration of an EEG and a CT scan.

During Friedman's stay at the hospital, he received various medications, including Dyazide, Haldol, and Tylenol, and his vital signs were monitored. No further testing or substantial changes in his care were ordered, however, after he was transferred out of intensive care on February 20, 1982. The physicians' progress records thereafter consist primarily of notations that Friedman's "condition [is] stable" and "unchanged." After March 6, the physicians' order sheet consists almost exclusively of the notation "renew orders." The nurses' notes indicate that after Friedman's Foley catheter was removed on March 9, his treatment consisted solely of occasional back care, administration of fleet enemas, and application of a posey jacket to restrain his movements. None of these treatments was administered on a daily basis.

On March 8, 1982, the hospital's utilization review committee ("URC") notified Friedman that his care as of that date required the "daily services of skilled personnel" rather than "the service of an acute-care hospital." The notice stated that Friedman's Medicare coverage would continue "provided that efforts are being made to find an alternate skilled facility for you." Notes from the hospital's Social Services Department reflect that from March 8 to September 29, it sought to place Friedman in a skilled nursing facility ("SNF").

On April 9, 1982, the hospital notified Friedman that his stay was no longer necessary and that he was no longer covered by Medicare. The Social Services Department decertified Friedman for coverage as of that date and notified his family of the decertification. The Department's notes indicate that a bed became available at a private nursing home on April 30, but that Friedman's family rejected it. The physicians' progress records in March and thereafter contain the repeated notation that Friedman was "awaiting ECF" (extended care facility). Two DMS-1 forms, filled out by a registered nurse and dated May 13 and September 9, indicated that Friedman's care should involve "skilled nursing supervision." ¹ In September, New York Blue Cross ("NYBC"), the Medicare program's fiscal intermediary, informed Friedman that no further hospital insurance benefits would be allowed for care after April 12, 1982. Friedman remained in the hospital until October 6, 1982.

Friedman initially sought reconsideration of the termination of his benefits by NYBC. In her comments on the case, NYBC reviewer Nancy Johnsen noted that Friedman received "skilled services 1-28 [to] 4-12; beg[inning] 4-13 care supportive while awaiting SNF." On October 15, 1982, NYBC formally advised Friedman that it had determined that its original denial of benefits was correct.

Friedman, through his attorney, ² then requested a hearing before an Administrative Law Judge ("ALJ") to challenge the denial of Medicare coverage. At the April 1983 hearing, Friedman's son-in-law, William Batkin, testified on Friedman's behalf, and Dr. Meyer Texon, Associate Professor of Medicine at the New York University Medical Center and President of the New York County Medical Society, testified as a medical adviser to the ALJ. Batkin testified that he had visited his father-in-law "a few Dr. Texon had not examined Friedman personally but had reviewed his hospital records and medical history. Dr. Texon concluded that Friedman required neither acute hospital care nor skilled nursing care from April 13 to October 6, 1982. He based this conclusion on the facts that after April 12, Friedman's condition was stable, he no longer needed intravenous medication, and his treatment "consisted of just repeating orders at intervals as required." According to Dr. Texon, Friedman "needed care, but not skilled nursing care."

times" during his nine-month hospitalization and that he had spoken twice to Friedman's doctor. Batkin could not recall the doctor's name, but testified that he would recognize it if he saw it. According to Batkin, the doctor said Friedman "belonged in a skilled nursing home and to send him back home would, literally, destroy and kill Mrs. Friedman," who was 80 years old and herself in sickly condition.

The ALJ denied Medicare benefits as of April 13, 1982, on the ground that Friedman did not require or receive skilled nursing care as of that date. The ALJ's ruling became the final decision of the Secretary when it was approved by the Appeals Council on October 31, 1983. The claimant then sought review of the Secretary's decision in the Eastern District of New York pursuant to 42 U.S.C. Secs. 405(g) and 1395ff(b). The district judge dismissed the complaint in an oral decision from the bench.

DISCUSSION

A. The Requirement of Physician's Certification

In the district court, the Secretary argued that the denial of benefits should be upheld because Mr. Friedman had not produced a physician's certification of need for the medical services as required by 42 U.S.C. Sec. 1395f(a)(2) (Supp. III 1985). The district judge agreed and upheld the denial of benefits principally on that ground. The Secretary repeated the argument on appeal to this court, and we originally affirmed the ruling below by an unpublished order that relied upon that contention.

The United States Attorney's Office subsequently informed us, however, that the Secretary had erred in his reading of the statute and was thus modifying his argument in this and similar cases. The Secretary now maintains that the certification requirement of 42 U.S.C. Sec. 1395f(a)(2) relates only to payment for services rendered under the Medicare program, not to coverage for such services. The Secretary notes that coverage and payment are treated as two separate inquiries: first, the Secretary determines whether the individual and the services involved are covered by Medicare, and, second, if coverage exists, the Secretary determines whether the other requirements for payment to the provider have been met. Moreover, once coverage is established, the provider of services, not the patient, is responsible for obtaining the necessary physicians' certifications, 42 C.F.R. Sec. 405.1625(b) (1986), and for bearing the risk of nonpayment if such certifications are unavailable. 42 C.F.R. Sec. 489.21(b)(1) and 489.40(b) (1986).

We agree with the Secretary's interpretation of the statute. Because the claimant in the instant case disputes the Secretary's determination concerning coverage, the certification requirement is irrelevant. Accordingly, we vacated our earlier order.

B. Custodial Versus Skilled Care

We now consider the coverage issues, bearing in mind that a determination by the Secretary as to an individual's entitlement to Medicare benefits is conclusive if supported by substantial evidence. 42 U.S.C. Sec. 405(g); Ridgely v. Secretary, 475 F.2d 1222, 1224 (4th Cir.1973); Gartmann v. Secretary, 633 F. Supp. 671, 679 (E.D.N.Y. 1986). We must thus uphold the Secretary's findings "if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion." Rodriguez v. Secretary, 647 F.2d 218, 222 (1st Cir.1981) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).

It is conceded that after April 12, 1982, Friedman did not receive care reimbursable under the Medicare provisions covering inpatient hospital care, 42 U.S.C. Sec. 1395d(a)(1). Friedman contends, however, that the services received during this period are reimbursable under the provisions covering extended care services, 42 U.S.C. Sec. 1395d(a)(2)(A), which provide for up to 100 days of post-hospital extended care services during any spell of illness. Although post-hospital extended care services ordinarily consist of those services furnished to an individual after transfer from a hospital to an SNF, see 42 U.S.C. Sec. 1395x(h) and (i), a patient who needs skilled nursing care and remains in the hospital solely because no SNF bed is available may be reimbursed for that care. 42 C.F.R. Sec. 405.1627(b). See Monmouth Medical Center v. Harris, 646 F.2d 74, 80 & n. 10 (3d Cir.1981). Friedman thus argues that from April 13 to October 6, 1982, he was receiving skilled nursing care and was awaiting discharge to a skilled nursing facility. The government counters that during this period Friedman did not need skilled care and that the care he received was merely custodial. ³ See 42 U.S.C. Secs. 1395y(a)(1)(A) (no payment may be made for any expenses "not reasonable and necessary for the diagnosis or treatment...