LEVI BY LEVI v. Heckler

• Decision Date: 06 December 1983
• Docket Number: No. 81 Civ. 3738-CSH.,81 Civ. 3738-CSH.
• Citation: 575 F. Supp. 1381
• Parties: Herman LEVI, By His Surviving Spouse and Executrix, Alice LEVI, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Southern District of New York

575 F. Supp. 1381

Herman LEVI, By His Surviving Spouse and Executrix, Alice LEVI, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.

No. 81 Civ. 3738-CSH.

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

November 23, 1983.

As Amended December 6, 1983.

Paul Blank, New York City, for plaintiff.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Barbara L. Schulman, Asst. U.S. Atty., New York City, Sally Lord, Asst. U.S. Atty., of counsel.

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

This is an appeal from a decision of the Secretary of Health and Human Services¹ denying plaintiff's claim for certain hospitalization benefits under the Medicare provisions of the Social Security Act, 42 U.S.C. §§ 1395 et seq., as amended ("the Act"). The Court's jurisdiction in this matter is founded on 42 U.S.C. §§ 405(g) and 1395ff(b). There being no dispute as to the relevant facts, the parties cross-move for judgment on the pleadings. For the reasons stated, the Secretary's motion is denied, and the plaintiff's cross-motion is granted.

I.

Mr. Herman Levi, plaintiff's deceased husband, was a patient at Gracie Square Hospital ("GSH") from November 15, 1977 through January 25, 1978 for treatment of chronic brain syndrome, old age and a nervous brain condition. Upon discharge, he was transferred to Fort Tryon Nursing Home ("FTNH"), a "skilled nursing facility" within the meaning of § 1395x(j). Mr. Levi remained at FTNH from January 26, 1978 to December 18, 1978, because his wife was unable to care for him at home.

On February 14, 1978, Mr. Levi's initial application for Medicare benefits with respect to the services provided at the FTNH was denied on the ground that skilled nursing services were not required or needed by Mr. Levi and the services provided to him were custodial in nature. On May 25, 1978, upon Mr. Levi's request for reconsideration, that decision was affirmed. In a letter from the insurance company acting as fiscal intermediary for the Social Security Administration, the Secretary reiterated that the care provided at the FTNH did not constitute "skilled nursing care":

"The care Mr. Levi received ... consisted of preparation of his diet, administration of oral medications, measures to insure his safety and assistance with bathing, dressing, eating and walking. This type of care, although important to a patient's well-being, does not constitute skilled nursing care and is noncovered under the Medicare program."

Record, p. 38. In consequence of that ruling, not challenged on this appeal, Mr. and Mrs. Levi bore the cost of the stay at FTNH.

Upon exhibiting symptoms of gastritis, intestinal obstruction, distended abdomen, and vomiting, Mr. Levi left the FTNH on December 19, 1978 and was admitted to Jewish Memorial Hospital ("JMH"). Following unsuccessful treatment and surgery, Mr. Levi passed away at JMH on February 8, 1979.

Plaintiff's claim for coverage of Mr. Levi's stay at JMH was denied by Medicare on June 17, 1980. Upon plaintiff's timely request for a hearing, Administrative Law Judge Irwin L. Herzog (the "ALJ") found on December 31, 1980 that plaintiff was not entitled to benefits, on the ground that Mr. Levi's hospitalization at JMH did not constitute a new "spell of illness," as defined in 42 U.S.C. § 1395x(a). Plaintiff requested review of the ALJ's decision, and on April 15, 1981, the Appeals Council affirmed that determination. It is from this order of the Appeals Council, constituting the final decision of the Secretary, that plaintiff appeals.

II.

Section 1395d(a)(1) of the Act provides coverage for the first 90—and, in some instances, 150—days of inpatient hospital services received during each "spell of illness." Once this coverage is exhausted, a new spell of illness must begin before an individual is once again eligible for benefits under that section.

The term "spell of illness" is defined under 42 U.S.C. § 1395x(a) to mean a period of consecutive days:

"(1) beginning with the first day (not included in a previous spell of illness) (A) on which such individual is furnished inpatient hospital services or extended care services, and (B) which occurs in a month for which he is entitled to benefits under part A, and

"(2) ending with the close of the first period of 60 consecutive days thereafter on each of which he is neither an inpatient of a hospital nor an inpatient of a skilled nursing facility."

In the case at bar, the ALJ has determined: 1) that FTNH is a "skilled nursing facility" within the meaning of the Act; and 2) that Mr. Levi did not require or receive skilled nursing care during his almost eleven month stay at FTNH. Neither party contests the accuracy of these factual determinations. The crucial issue now posed is whether plaintiff's admittedly custodial residence at FTNH constitutes a period where he was "neither an inpatient of a hospital nor an inpatient of a skilled nursing facility," 42 U.S.C. § 1395x(a)(2) (emphasis added). If plaintiff's stay cannot be so characterized, as defendant contends, then the spell of illness which began with Mr. Levi's admission to GSH on November 15, 1977 continued throughout his subsequent residence at FTNH and consequently prevented the commencement of a new spell of illness on January 19, 1978. Plaintiff maintains, however, that although Mr. Levi remained a resident of FTNH for custodial care, he was not an "inpatient" of the facility and that therefore the spell of neurological illness that began in November of 1977 terminated many months before the spell of gastrointestinal illness began in December of 1978.

This Court of course acknowledges the general rule that agency interpretations should be accorded substantial weight. The final interpretation of the Social Security Act is, however, by its own provisions a judicial function. Social Security Board v. Nierotko, 327 U.S. 358, 368-9, 66 S.Ct. 637, 642-43, 90 L.Ed. 718 (1946). Although the decision of the Secretary must be affirmed if it is supported by "substantial evidence," Bastien v. Califano, 572 F.2d 908 (2d Cir.1978), this standard is not applicable to a review of questions of law. Where evidence has not been properly evaluated because of an erroneous view of the law, the determination of the Secretary will not be upheld. Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979).

Defendant contends that section 1395x(a) manifests the intent on the part of its drafters to establish two different tests to be used in computing the length of a spell of illness. In fixing the start of a spell of illness under paragraph (1), the Secretary maintains that the level of care actually received must be determinative. In fixing the end of the same spell, however, under paragraph (2), the Secretary argues that the nature of the institution is determinative—regardless of care received. Under defendant's view, Mr. Levi was an "inpatient of a skilled nursing facility" from January 26, 1978 to December 15, 1978 solely by virtue of the fact that he resided at FTNH, a facility equipped to provide skilled nursing services.

This narrow issue of statutory interpretation has already been addressed by at least five district courts within this Circuit—including two within the Southern District. These courts have unanimously rejected the two-tiered approach suggested here. See Steinberg v. Schweiker, 549 F.Supp. 114 (S.D.N.Y.1982); Picard v. Secretary of Health and Human Services, Medicare & Medicaid Guide (CCH), ¶ 30,722 (S.D.N.Y.1980); Levine v. Secretary, 529 F.Supp. 333 (W.D.N.Y.1981); Fineberg v. Secretary of HEW, 363 F.Supp. 1382 (W.D. N.Y.1973); Gerstman v. Secretary, 432 F.Supp. 636 (W.D.N.Y.1977). The phrase "inpatient of a skilled nursing facility" must be understood to refer to an individual who both resides in a skilled nursing facility and receives the "skilled nursing care" there available. Steinberg, 549 F.Supp. at 116. Where, as here, the latter factor is concededly absent, an individual cannot properly be said to be an inpatient of a skilled nursing facility. Ibid. Mr. Levi was therefore eligible for...