Weir v. Richardson

• Citation: 343 F. Supp. 353
• Decision Date: 06 June 1972
• Docket Number: Civ. No. 11-326-C-2.
• Parties: Henrietta WEIR, Plaintiff, v. Elliot Lee RICHARDSON, Secretary of Health, Education and Welfare of the United States of America, Defendant.
• Court: United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa

343 F. Supp. 353

Henrietta WEIR, Plaintiff, v. Elliot Lee RICHARDSON, Secretary of Health, Education and Welfare of the United States of America, Defendant.

Civ. No. 11-326-C-2.

United States District Court, S. D. Iowa, C. D.

June 6, 1972.

Marvin E. Duckworth, Des Moines, Iowa, for plaintiff.

Allen L. Donielson, U. S. Atty., and John B. Grier, Asst. U. S. Atty., Des Moines, Iowa, for defendant.

MEMORANDUM AND ORDER

HANSON, Chief Judge.

The Court has before it defendant's Motion for Summary Judgment filed on January 17, 1972, and plaintiff's Motion for Summary Judgment filed on May 5, 1972. This is a proceeding to review the administrative decision of the Secretary of Health, Education and Welfare of the United States, brought under 42 U.S.C., Sections 405(g) & 1395ff(b) and the Court concludes that it has jurisdiction over the subject matter thereof. Plaintiff complains to this Court of a decision adverse to her by the Secretary with respect to a claim for extended care benefits. Section 405(g) provides "where a claim has been denied by the Secretary . . . because of failure of the claimant . . . to submit proof in conformity with any regulation prescribed under subsection (a) of this section, the court shall review only the question of conformity with such regulations and the validity of such regulations." Section 405(g) contemplates review by the Court solely upon the pleadings and transcript before the Secretary. No new evidence may be admitted before this Court in such a proceeding. 42 U. S.C., Section 405(h). With respect to the use of summary judgment in a proceeding under Section 405(g), this Court in Throgmartin v. Richardson, Civil No. 10-240-C-2 (S.D.Iowa, Feb. 28, 1972) (unreported), concluded: "Such a procedure under 42 U.S.C., Section 405(g) does not admit the use of summary judgment, since summary judgment procedure allows new factual evidence to be admitted in the form of affidavits. . . . McMullen v. Celebrezze, 335 F. 2d 811 (9th Cir. 1964), cert. denied, 382 U.S. 854 86 S.Ct. 106, 15 L.Ed.2d 92; Ayala v. Secretary of Health, Education and Welfare, 51 F.R.D. 505 (D.P.R. 1971)." Accordingly, the Court will deny the Motions for Summary Judgment and proceed to the merits of the case.

Plaintiff, Henrietta Weir, of Des Moines, Iowa, an octigenarian, was hospitalized at Iowa Methodist Hospital, Des Moines, from October 31, 1969 to November 17, 1969, primarily for treatment of epigastric distress and also because of mental confusion. On November 25, 1969, eight days after her discharge from the hospital, she was admitted to the Americana Nursing Center, Des Moines, where she remained as a patient until January 7, 1970. Shortly thereafter she filed for benefits under Section 1812(a) (2) of the Social Security Act (42 U.S.C., Section 1395d(a) (2)), which provides for payment for post-hospital extended care services under certain conditions. The Bureau of Health Insurance, Social Security Administration, denied Mrs. Weir's claim with respect to the confinement at Americana Nursing Center. Mrs. Weir filed a request for hearing, and on March 9, 1971, the Hearing Examiner rendered a decision granting her claim. The Appeals Council reviewed the Examiner's decision on its own motion, and on July 1, 1971, filed its decision reversing the Examiner and denying Mrs. Weir's claim. The decision of the Appeals Board became the final decision of the Secretary.

Mrs. Weir was, at the time of her confinement, qualified for hospital insurance benefits for the aged under the Social Security Act. 42 U.S.C., Section 1395c. The Social Security Act provides for payment to qualified persons such as Mrs. Weir for "post-hospital extended care services for up to 100 days during any spell of illness." 42 U.S.C., Section 1395d(a) (2). The Act provides that payment for services to an individual may be made to providers of services but only if:

"a physician certifies . . . that . . . in the case of post-hospital extended care services, such services are or were required to be given on an inpatient basis because the individual needs or needed skilled nursing care on a continuing basis for any of the conditions with respect to which he was receiving inpatient hospital services . . . prior to transfer to the extended care facility. . . ." 42 U.S.C., Section 1395f(a) (2) (C).

The Americana Nursing Center is a qualified extended care facility under the Social Security Act. 42 U.S.C., Section 1395x(j). "Extended care services" include nursing care provided by or under the supervision of a registered professional nurse; physical, occupational, or speech therapy provided by the extended care facility; medical social services; and, such drugs, biologicals, supplies, appliances, and equipment as are ordinarily furnished by the facility. 42 U.S.C., Section 1395x(h). Section 1862(a) of the Act (42 U.S.C., Section 1395y(a)) provides inter alia:

Notwithstanding any other provision of this title, no payment may be made under part A or part B for any expenses incurred for items or services . . . (9) where such expenses are for custodial care.

The Secretary found that Mrs. Weir's expenses with respect to her confinement in the Americana Nursing Center were for custodial care, and thus denied her claim on the basis of Section 1862(a) (9) of the Act. Thus, the issue before this Court is whether there is substantial evidence to support the decision of the Secretary that payment may not be made on behalf of plaintiff for the services rendered to her during her stay from November 25, 1969 to January 7, 1970 at the Americana Nursing Center for reason that the services required and received were "custodial" in nature and, therefore, specifically excluded from coverage under Section 1862(a) (9) of the Social Security Act, as amended, 42 U.S.C., Section 1395y(a) (9).

Section 405(g) of Title 42 of the United States Code provides: "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." The finality accorded the Secretary's findings extends not only to the evidentiary or basic facts, but also to ultimate facts drawn therefrom as inference or conclusion. Martlew v. Celebrezze, 320 F.2d 887, 889 (5th Cir. 1963); Ferenz v. Folson, 237 F.2d 46, 49 (3d Cir. 1956) cert. denied, 352 U.S. 1006, 77 S.Ct. 569, 1 L.Ed.2d 551 (1957); Livingstone v. Folsom, 234 F.2d 75, 77 (3d Cir. 1956); United States v. La Lone, 152 F.2d 43, 44 (9th Cir. 1945); Social Security Bd. v. Warren, 142 F.2d 974, 976 (8th Cir. 1944); Walker v. Altmeyer, 137 F.2d 531, 533 (2d Cir. 1943). See also 4 K. Davis, Administrative Law Treatise, Section 29.05 and cases cited therein. "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. of New York v. N. L. R. B., 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938). In order to be "substantial evidence," the evidence in support of an administrative determination "must do more than create a suspicion of the fact to be established." N. L. R. B. v. Columbian Enameling and Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660 (1939).

After carefully reviewing the pleadings and the record before the Secretary, the Court concludes that there is sufficient relevant evidence in the record for a reasonable mind to accept the conclusions of the Secretary. The primary purpose of Mrs. Weir's admission to Iowa Methodist Hospital was to treat her gastrointestinal problems. (Tr. 22 & 23). The certifying doctor's report at discharge indicated that she was also admitted to the hospital because of mental confusion (Tr. 22), but his report made at the time of her admission speaks of only the gastrointestinal problems. (Tr. 23). She was discharged with certain medications to be administered at home. She remained home for 8 days before she was admitted to the nursing center. The physician's goals for the extended confinement, as shown by nursing center records (Tr. 28-32), were to relieve gastric distress, and to control mental confusion, diabetes and a cardiac condition. Her medications remained the same as those she was taking at home; the physician's only other orders were for daily diabetic testing and elevation of the head of the bed, both of which could be done by an ordinary person at Mrs. Weir's home. The certifying doctor's hospital discharge report shows that the cardiac condition, the diabetes, and the mental confusion were under medical control to the extent possible prior to Mrs. Weir's admission to the hospital, and that nothing changed with respect to these problems while she was in the hospital. (Tr. 22). The gastrointestinal problem was brought under medical control to the extent possible while Mrs. Weir was in the hospital; the medication prescribed for the problem when she went home and through her stay and release at the nursing center was such that an ordinary lay person could safely administer it. The mental confusion was the result of cerebral arteriosclerosis and was irreversable. There is no substantial evidence in the record indicating that the mental confusion was a problem requiring skilled nursing care; the contrary is indicated by the facts...