Mayburg v. Secretary of Health and Human Services, 84-1022

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation740 F.2d 100
Docket NumberNo. 84-1022,84-1022
Parties, Medicare&Medicaid Gu 34,082 Rose MAYBURG, et al., Plaintiffs, Appellees, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellant.
Decision Date02 August 1984

Harold J. Krent, Atty., Appellate Staff, Civ. Div., Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., William F. Weld, U.S. Atty., Boston, Mass., and Anthony J. Steinmeyer, Atty., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., were on brief, for defendant, appellant.

Daniel S. Manning, with whom Sally Hart Wilson, was on brief, for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and PETTINE, * Senior District Judge.

BREYER, Circuit Judge.

With certain qualifications, the Medicare Act, Part A, provides eligible persons with 90 days of hospital "inpatient" coverage and 100 days of post-hospital "extended care" coverage during each "spell of illness." 42 U.S.C. Sec. 1395d(a). The Act defines "spell of illness" as a period

(1) beginning with the first day (not included in a previous spell of illness) (A) on which such individual is furnished inpatient (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.

hospital services or extended care services, and (B) which occurs in a month for which he is entitled to benefits under part A, and

42 U.S.C. Sec. 1395x(a). This language seems to say that the "spell of illness" clock begins to tick when one first receives covered services; and it is not turned off and reset unless, and until, one is no longer ("an inpatient of a hospital" or) "an inpatient of a skilled nursing facility" for at least sixty days.

This case asks how this language applies to a person who lives in a skilled nursing facility, a very old person who receives no medical treatment at the facility, but who can no longer be kept at home. Does her "spell of illness" clock, once started, never turn off? Once she uses up the full treatment allowance offered for a single "spell of illness" (and a lifetime reserve), is she out of luck? The Department of Health and Human Services ("HHS") believes so. It has long interpreted the words "inpatient of a skilled nursing facility" to include one who receives only "custodial" care in the facility, i.e., one who simply lives there. And HHS believes that such people consequently cannot reset the "spell of illness" clock.

The plaintiff in this case, Rose Mayburg, is an 88 year old woman who lives in a "skilled nursing facility" but who receives only "custodial" care. Medicare Part A does not reimburse the cost of this custodial care. But Medicare Part A does pay for any hospital (and related) treatment. Since April 1977 she has been admitted to a hospital at least four times, sometimes for fever and sometimes because of rectal bleeding. In each instance she returned to the nursing facility where she lives. Blue Cross told her that Medicare Part A would not cover her after March 4, 1980, for she had used up the benefits pertaining to one "spell of illness;" and she had elected not to use her special lifetime allowance; since she lives in a nursing home, her "spell of illness" clock could not be reset. She appealed this decision through HHS and finally to the district court.

The district court found that HHS erroneously interpreted the statute. The words "inpatient of a skilled nursing facility" do not apply to one who receives only custodial care at a skilled nursing facility. Thus, such a person's "spell of illness" clock turns off (after sixty days of no treatment) and begins to run again. 574 F.Supp. 922. HHS appeals this holding. After considering the arguments and reading the legislative history of the statute, we conclude that the district court is correct.


We can state our reasons for agreeing with the district court briefly. First, the court's decision is consistent with the overwhelming weight of judicial authority. Three separate circuits, the Second, Third, and Sixth, as well as many district courts, have rejected the Secretary's interpretation of the statute. Levi v. Heckler, 736 F.2d 848 (2d Cir.1984) (per curiam); Kaufman v. Harris, 731 F.2d 370 (6th Cir.1984) (per curiam); Friedberg v. Schweiker, 721 F.2d 445 (3rd Cir.1983); Henningson v. Heckler, Slip Op. No. 83-3077 (N.D.Iowa Oct. 27, 1983); Steinberg v. Schweiker, 549 F.Supp. 114 (S.D.N.Y.1982); Estate of Picard v. Secretary of Health and Human Services, [1980-1981 Transfer Binder] Medicare & Medicaid Guide (CCH) p 30,722 (S.D.N.Y. Sept. 2, 1980); Levine v. Secretary of Health, Education and Welfare, 529 F.Supp. 333 (W.D.N.Y.1981); Burt v. Secretary of Health, Education and Welfare, No. S-77-619 (E.D.Cal. Feb. 22, 1979); Eisman v. Mathews, 428 F.Supp. 877 (D.Md.1977); Gerstman v. Secretary of Health, Education and Welfare, 432 F.Supp. 636 (W.D.N.Y.1977); Hasek v. Mathews, [1977-1978 Transfer Binder] Medicare & Medicaid Guide (CCH) p 28,345 (N.D.Cal. Feb. 8, 1977); Hardy v. Mathews, [1976-1977 Transfer Binder] Medicare & Medicaid Second, the court's decision adopts the meaning that the plain language of the statute suggests. The word "patient" ordinarily refers to one who receives treatment. Webster defines an "inpatient" as "a patient ... who receives lodging and food as well as treatment." Webster's Third New International Dictionary 1167 (1976 unabridged). One like Mrs. Mayburg, who receives only custodial care, receives "lodging and food" but not "treatment." Hence, ordinary English usage places her outside the scope of the term "inpatient."

                Guide (CCH) p 28,031 (D.Minn. July 28, 1976).  Only two district courts have upheld the Secretary, and neither of their opinions analyzes the issue in much detail.   Stoner v. Califano, 458 F.Supp. 781 (E.D.Mich.1978);  Brown v. Richardson, 367 F.Supp. 377 (W.D.Pa.1973)

Third, the Secretary's interpretation creates a curious anomaly. Had Mrs. Mayburg lived at home, sixty days after she was released from the hospital (and after any "extended care" was no longer necessary), her "spell of illness" would have terminated and the clock would have been reset. Because she lived in a nursing home, the Secretary believes the "spell" does not terminate. Yet, there is no medical difference between the actual Mrs. Mayburg who lives in the nursing home and the hypothetical Mrs. Mayburg who lives at home. Why should the place of residence then create a difference in result?

Fourth, the administrative and technical arguments that the Secretary advances in favor of a more technical meaning for "inpatient" are weak. The Secretary points out that administratively it is easier to determine (1) whether a person is living in a nursing home than to determine (2) whether a person living in a nursing home is receiving only custodial care or treatment as well. But, the force of this administrative argument is weakened by the fact that the Secretary typically must determine treatment levels anyway--to decide, for example, when a "spell of illness" begins or whether expenses are to be reimbursed. The Secretary also points to the use of "inpatient" in two neighboring sections of the Act, defining "extended care services," 42 U.S.C. Sec. 1395x(h) and "skilled nursing facility," 42 U.S.C. Sec. 1395x(j). But the Secretary does not demonstrate any significant administrative or interpretive problem that would arise if the word "inpatient" in those sections, as well as in the "spell of illness" section, were interpreted to refer to a resident who receives some form of treatment. (See Appendix A for text.) Juxtaposing these sections reveals no linguistic anomaly sufficient to justify the practical anomaly to which the Secretary's interpretation leads.

Fifth, the district court's position is consistent with the general principle that the Social Security Act should be broadly construed, so as to carry out Congress's intent to provide medical expense coverage for all qualifying individuals. Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir.1965); Rowe v. Finch, 427 F.2d 417, 419 (4th Cir.1970).


The Secretary makes two sets of arguments in favor of her interpretation that warrant further discussion.

a. She claims that the legislative history of the statute supports her interpretation of the word "inpatient," to include all who live at a skilled nursing facility. We have read the history, however, and have not found significant support for her interpretation.

Congress enacted the statutory provision in 1965. The parties have found nothing in the legislative history of that 1965 statute that is on point. The 1965 history suggests, at most, that Congress did not intend to finance longterm hospital stays; but, any such intent is consistent with either "inpatient" definition.

For the most part the legislative history that the Secretary cites developed two years later in 1967 when Congress considered amending the statute. The President present law does not authorize any distinction between a beneficiary who is receiving skilled nursing care and other services in an extended care facility and one who [simply] resides in a nursing home.... Once the resident who is domiciled in such a nursing home has used up his presently authorized ... days of extended-care facility benefits, he cannot start a new spell of illness and become entitled to further care [unless he changes his residence] ....

of Blue Cross then testified, for example, that

Proposed amendment to the Social Security Act: Hearings before the Senate Comm. on Finance, 90th Cong. 1st Sess. 915, 919 (1967). And, other witnesses testified similarly. Id. at 920, 924 (statement of Walter McNerney, President, Blue Cross Association); id. at 1023, 1027 (statement of Garland Bonin, Commissioner of the Louisiana Dept. of Public...

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