Gartmann v. SECRETARY OF US DEPT. OF HEALTH

• Decision Date: 28 April 1986
• Docket Number: No. CV 84-2638.,CV 84-2638.
• Parties: Sophie GARTMANN, Plaintiff, v. SECRETARY OF the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — Eastern District of New York

633 F. Supp. 671

Sophie GARTMANN, Plaintiff, v. SECRETARY OF the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

No. CV 84-2638.

United States District Court, E.D. New York.

April 28, 1986.

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Robert & Schneider by Ira S. Schneider and Steven P. Lerner, Hempstead, N.Y., for plaintiff.

Reena Raggi, U.S. Atty. by Thomas Roberts, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.

MEMORANDUM AND ORDER

WEXLER, District Judge.

Plaintiff Sophie Gartmann ("Gartmann") brings this action under §§ 205(g) and 1869(b) of the Social Security Act ("Act"), as amended, 42 U.S.C. § 405(g) and 1395ff, for review of a determination of the Secretary of Health and Human Services ("Secretary") which denied plaintiff's application for payment of post-hospital extended care services benefits under Title XVIII of the Act, 42 U.S.C. §§ 1395-1395zz. Specifically, plaintiff seeks reversal of the Secretary's determination that Gartmann is not eligible for reimbursement for services rendered at the Cliffside Nursing Home for a one hundred day period beginning July 23, 1982. The parties have now cross-moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

I.

Before the Court turns to the specific facts of this case, it will perhaps be useful to outline briefly the statutory and regulatory scheme that underlies plaintiff's claim. In 1965, Congress added a new Title XVIII to the Social Security Act for the specific purpose of providing a coordinated and comprehensive approach to health insurance and medical care to the aged. 1965 U.S.Code Cong. and Ad.News 1943; Turecamo v. C.I.R., 554 F.2d 564, 571 (2d Cir. 1977). Given the heading "Health Insurance for Aged and Disabled," Title XVIII is more commonly known as the Medicare statute. In relevant part, the Medicare statute provides for reimbursable hospital and skilled nursing facility insurance benefits. 42 U.S.C. §§ 1395-1395i-2 ("Medicare Part A"). The statute establishes a number of specific categories of services for which reimbursement may, under appropriate circumstances, be mandated, namely, inpatient hospital services, post-hospital extended care services, home health services, and, "in lieu of certain other benefits," hospice care. 42 U.S.C. § 1395d(a).

Plaintiff in the case at bar seeks benefits for post-hospital extended care services. Part C of the Medicare statute sets forth definitions of both "extended care services" and "post-hospital extended care services." 42 U.S.C. § 1395x(h) provides:

The term "extended care services" means the following items and services furnished to an inpatient of a skilled nursing facility and (except as provided in paragraphs (3) and (6)) by such skilled nursing facility—

(1) nursing care provided by or under the supervision of a registered professional nurse;

(2) bed and board in connection with the furnishing of such nursing care;

(3) physical, occupational, or speech therapy furnished by the skilled nursing facility or by others under arrangements with them made by the facility;

(4) medical social services;

(5) such drugs, biologicals, supplies, appliances, and equipment, furnished for use in the skilled nursing facility, as are ordinarily furnished by such facility for the care and treatment of inpatients;

(6) medical services provided by an intern or resident-in-training of a hospital with which the facility has in effect a transfer agreement (meeting the requirements of subsection (l) of this section), under a teaching program of such hospital approved as provided in the last sentence of subsection (b) of this section, and other diagnostic or therapeutic services provided by a hospital with which the facility has such an agreement in effect; and

(7) such other services necessary to the health of the patients as are generally provided by skilled nursing facilities;

excluding, however, any item or service if it would not be included under subsection (b) of this section if furnished to an inpatient of a hospital.

42 U.S.C. § 1395x(i) states:

The term "post-hospital extended care services" means extended care services furnished an individual after transfer from a hospital in which he was an inpatient for not less than 3 consecutive days before his discharge from the hospital in connection with such transfer. For purposes of the preceding sentence, items and services shall be deemed to have been furnished to an individual after transfer from a hospital, and he shall be deemed to have been an inpatient in the hospital immediately before transfer therefrom, if he is admitted to the skilled nursing facility (A) within 30 days after discharge from such hospital, or (B) within such time as it would be medically appropriate to begin an active course of treatment, in the case of an individual whose condition is such that skilled nursing facility care would not be medically appropriate within 30 days after discharge from a hospital; and an individual shall be deemed not to have been discharged from a skilled nursing facility if, within 30 days after discharge therefrom, he is admitted to such facility or any other skilled nursing facility.¹

Any expenses incurred for items or services which are not "reasonable and necessary" for diagnosis or treatment are specifically excluded from coverage under the Act, as are expenses for "custodial care". 42 U.S.C. §§ 1395y(a)(1)(A) and (9). Custodial care is defined in the regulations promulgated under Title XVIII as "any care which does not meet the definition of extended care." 42 C.F.R. § 405.310(g).²

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The costs of post-hospital extended care services are reimbursable only if a physician certifies that such services "are or were required to be given because the individual needs or needed on a daily basis 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).

Furthermore, the Act requires that each participating state establish "utilization review committees" ("URC's") to assure that patients will receive neither a greater nor lesser level of care than they need. 42 U.S.C. § 1395x(k); 42 C.F.R. § 405.1137; Kuebler v. Secretary of the United States Dep't of Health and Human Services, 579 F.Supp. 1436, 1440 (E.D.N.Y.1984). Such committees must include at least two physicians, and may also include other professional personnel such as registered nurses or medical social workers. 42 U.S.C. § 1395x(k); 42 C.F.R. § 405.1137; 1965 U.S.Cong.Code and Ad.News 1943, 1988. An attending physician may not be a member of a URC that is conducting a review of his patient's care. 42 C.F.R. § 405.1137(b)(3); Kraemer v. Heckler, 737 F.2d 214, 216 (2d Cir.1984). The Senate Report on the Medicare statute states, "Hospitals and extended care facilities participating in the program would be required to have in effect a utilization review plan providing for a review of admissions to the institution, lengths of stays, and the medical necessity for services provided with the objective of promoting the efficient use of services and facilities." 1965 U.S.Cong.Code and Ad.News 1943, 1988. Post-hospital extended care services Medicare benefits are available only if a URC determines that such services are medically necessary. 42 U.S.C. § 1395f(a)(7); 42 C.F.R. § 405.1137. Before a URC can find that further services are not necessary, it must afford a patient's attending physician an opportunity for consultation with the committee. 42 U.S.C. § 1395x(k)(4); 42 C.F.R. § 405.1137; Hultzman v. Weinberger, 495 F.2d 1276 (3d Cir.1974).

If an individual meets all of the above requirements, Medicare will cover post-hospital extended care services "for up to 100 days during any spell of illness." 42 U.S.C. § 1395d(a)(2)(A).³ It is reimbursement for services rendered by the Cliffside Nursing Home during such a one hundred day period that Gartmann seeks in this lawsuit.

II.

Plaintiff is an 87 year old woman who was born October 25, 1898. On July 14, 1982, she was admitted to Hillcrest General Hospital, where congestive heart failure, a left cerebral vascular accident, aphasia, and hypertension were diagnosed.

On July 23, 1982, plaintiff was transferred to the Cliffside Nursing Home ("Cliffside"), a skilled nursing facility.⁴ The patient transfer form indicates that at the time of her transfer Gartmann was suffering from a cerebral vascular accident, right hemiplegia, and aphasia, required a low salt diet and help feeding herself, and needed "total care," which included complete assistance in toileting, bathing and dressing. Her behavior was withdrawn and her mental status forgetful and confused. Plaintiff lacked any communicative ability, as she could not speak or write, and could not understand speaking, writing or gestures. Furthermore, upon her transfer to Cliffside, Gartmann exhibited a sudden onset of dyspnea and a rapid ventricular rate. In his progress notes, Dr. Kreitman, plaintiff's attending physician, stated that on the date of her admission to the nursing home, plaintiff's ailments included congestive heart failure, atrial fibrillation, pulmonary infiltrate, and urinary tract infection.

Upon Gartmann's admission to Cliffside, Dr. Kreitman certified that post-hospital extended care facility services were required because of Gartmann's need for skilled nursing care on a continuing basis for the conditions for which she had been receiving in-patient hospital services at Hillcrest General Hospital. Dr. Kreitman recertified that extended care was necessary on August 6, 1982, noting the need for treatment of right hemiplegia, cerebral vascular accident, and atrial fibrillation. On September 5, 1982, and again on October 5, 1982, Dr. Kreitman certified that continued extended care was necessary for rehabilitation post cerebral vascular accident.⁵

The record contains a number of pages of nurses' notes covering the...