Hultzman v. Weinberger, 73-1917.

• Decision Date: 18 April 1974
• Docket Number: No. 73-1917.,73-1917.
• Citation: 495 F.2d 1276
• Parties: Dora HULTZMAN, Appellant, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

495 F.2d 1276 (1974)

Dora HULTZMAN, Appellant, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Appellee.

No. 73-1917.

United States Court of Appeals, Third Circuit.

Argued February 25, 1974.

Decided April 18, 1974.

Roland J. Artigues, Galfand, Berger, Senesky, Lurie & March, Philadelphia, Pa., for appellant.

Robert E. J. Curran, Michael B. L. Hepps, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before HUNTER and WEIS, Circuit Judges, and MILLER, District Judge.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This appeal involves the denial of Medicare coverage by the Secretary of Health, Education and Welfare ("HEW") for inpatient hospital services which the Secretary believed could have been rendered in a lesser care facility. Jurisdiction resides in this Court by virtue of 42 U.S.C. § 1395ff(c), 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.

From July 13 through September 3, 1970, appellant, Mrs. Dora Hultzman, was hospitalized at the Albert Einstein Medical Center, Philadelphia, Pennsylvania, on the order of her family physician, Dr. Kravitz. Mrs. Hultzman, who was 73 years old at the time she was admitted to the hospital, had suffered from severe rheumatoid arthritis for many years. She had previously received therapy for her arthritis by Dr. Kravitz at the Moss Rehabilitation Center, a rehabilitation hospital. Mrs. Hultzman had felt increasing pain in the months preceding her hospitalization, and she had great difficulty in moving about, even with the aid of two canes. Dr. Kravitz noted in the discharge summary that she was completely helpless at the time of admission.

Although the primary purpose for the hospital admission was to receive physical and occupational therapy, Dr. Kravitz was equally concerned with several other ailments of Mrs. Hultzman: persistent iron-loss anemia, urinary tract infection, eye problems and previous gastrointestinal bleeding. Dr. Kravitz ordered hospitalization because Mrs. Hultzman "could not have gotten her treatment as an outpatient because she was non-ambulatory and she could not be transferred to a less acute facility such as Moss Rehabilitation Hospital because of the urinary problem and the anemia." Dr. Kravitz, who had previously treated Mrs. Hultzman at the Moss Rehabilitation Center, this time chose to treat her at the Albert Einstein Medical Center so that her many other ailments could be taken care of at the same time that she was receiving physical therapy.

Throughout Mrs. Hultzman's hospitalization, both Dr. Kravitz, her family and attending physician, and the utilization review committee of the hospital¹ certified that care in the hospital was medically necessary and that it was medically necessary for Mrs. Hultzman to remain in the hospital for as long as she did.

The patient progress notes show the following entry by Dr. Kravitz on September 1: "Pain unabated — patient seems to be trying very hard but we have reached an impasse." On September 3, Mrs. Hultzman was discharged from the hospital.

Subsequently, the hospital submitted a request for payment for services rendered to Mrs. Hultzman to appellee's fiscal intermediary, Blue Cross of Greater Philadelphia, which initially handles such a claim. Acting on behalf of the intermediary, Dr. H. Hopkins examined the medical records and concluded that there had been an "overutilization," i. e., that only during the first seven days of Mrs. Hultzman's hospitalization did she require inpatient hospital services and the remainder, which he concluded was mostly for physical therapy, could have been rendered in some lesser facility.

Concurring with Dr. Hopkins, the Hearing Examiner held that the hospital services provided to Mrs. Hultzman from July 13 to September 3, 1970, "were not reasonable and necessary inpatient hospital services and are specifically excluded from coverage by 42 U.S.C. § 3195y 1395y (a)(1)." The Hearing Examiner's decision subsequently became the final decision of the Secretary. On July 19, 1973, the district court upheld the Secretary, finding the decision to be supported by substantial evidence. This appeal followed. We reverse.

In drafting the Medicare legislation, Congress provided for benefits for "inpatient hospital services." 42 U.S.C. § 1395d(a)(1). This section contains only one condition: benefits are not payable beyond a maximum number of days in the hospital.² This limitation on the reimbursable length of stay is reinforced by a requirement that a "spell of illness" would continue until sixty days after discharge, thereby precluding coverage of a rehospitalization during that period. 42 U.S.C. § 1395x(a)(2).

The Medicare statute defines "inpatient hospital services" as follows:

"(b) The term `inpatient hospital services\' means the following items and services furnished to an inpatient of a hospital and (except as provided in paragraph (3)) by the hospital —

"(1) bed and board;

"(2) such nursing services and other related services, such use of hospital facilities, and such medical social services as are ordinarily furnished by the hospital for the care and treatment of inpatients, and such drugs, biologicals, supplies, appliances, and equipment, for use in the hospital, as are ordinarily furnished by such hospital for the care and treatment of inpatients; and

"(3) such other diagnostic or therapeutic items or services, furnished by the hospital or by others under arrangements with them made by the hospital, as are ordinarily furnished to inpatients either by such hospital or by others under such arrangements . . . ." 42 U.S.C. § 1395x(b).³

Certain "conditions of and limitations on payment for services" are provided in 42 U.S.C. § 1395f. First, payment is conditional upon a physician certifying "that such services are required to be given on an inpatient basis for such individual's medical treatment, or that inpatient diagnostic study is medically required and such services are necessary for such purpose. . . ." 42 U.S.C. § 1395f(a)(3). The first such certification is to be made no later than the 20th day of the hospitalization and periodic recertifications are necessary thereafter. The legislative history reveals the importance Congress attached to the physician's certification:

"The physician is to be the key figure in determining utilization of health services — and . . . it is a physician who is to decide upon admission to a hospital, order tests, drugs and treatments, and determine the length of stay. For this reason the bill would require that payment could be made only if a physician certifies to the medical necessity of the services furnished." 1965 U.S.Code Cong. & Admin.News, p. 1986.

Second, when inpatient hospital services extend beyond twenty days, payment is conditional upon periodic review by the utilization review committee as to the medical necessity of further inpatient hospital services. 42 U.S.C. § 1395f(a)(6) & (a)(7). Before the utilization review committee can find that further stay in the institution is not medically necessary, it must afford the attending physician an opportunity for consultation with the committee. 42 U. S.C. § 1395x(k)(4). The regulations of the Secretary outline the standard by which the committee reviews the decision of the attending physician:

"Because there are significant divergences in opinion among individual physicians in respect to evaluation of medical necessity for inpatient hospital services, the judgment of the attending physician in an extended stay case is given great weight, and is not rejected except under unusual circumstances." 20 C.F.R. § 405.1035(g).

If after consultation with the attending physician, the utilization committee determines that further stay in the institution is medically unnecessary, it must promptly notify the hospital, the individual and the attending physician. 42 U.S.C. § 1395x(k)(4). Payment for inpatient hospital services continues, however, for three days following receipt by the hospital of the committee's determination. 42 U.S.C. § 1395f(a)(7). If the utilization review committee fails to function effectively, the statute provides that the Secretary may decertify the hospital, 42 U.S.C. § 1395cc (b)(2)(A), or upon notice the Secretary may deny reimbursement for inpatient hospital services rendered by that hospital after the 20th day of hospitalization. 42 U.S.C. § 1395cc(d). Wilbur Cohen, then Under-Secretary of HEW, testified prior to the passage of the Medicare legislation that, "if the utilization review board makes a mistake, there is nothing we can do about it, because that is the professional decision of the doctors."⁴ In response to questioning, he agreed that the utilization review committee's decision would be equivalent to a "supreme court decision."⁵

We fully agree with the Secretary that Congress, in enacting the Medicare legislation, sought to encourage the efficient and economical use of medical facilities. This does not explain, though, what method Congress chose to accomplish this objective. That Congress intended the utilization review committee to have the primary role in securing these objectives is evidenced by the legislative history as well as by the Secretary's regulations:

"The committee is particularly concerned that the utilization and review function is carried out in a manner which protects the patients while at the same time making certain that they remain in the hospital only so long as is necessary, and that every effort be made to move them from the hospital to other facilities which can provide less expensive, but equal, care to meet their current medical needs." 1965 U.S.Code Cong. & Admin.News, p. 1987.

20 C.F.R. § 405.1035(a) & (b)(2) provides:

"An acceptable utilization review plan provides for: (1) The review, on a sample or other basis, of admissions, duration of stays, and professional services furnished; and (2) review of each case of continuous extended duration."

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"(2) The review plan of a

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