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STEINBERG v. SCHWEIKER

September 16, 1982

PAULINE STEINBERG, Plaintiff, against RICHARD S. SCHWEIKER, Secretary of Health and Human Services, Defendant.


The opinion of the court was delivered by: SAND

SAND, J.

This action seeks review of the final decision of defendant denying plaintiff's claim for certain hospitalization benefits under the Medicare provisions of the Social Security Act, as amended, 42 U.S.C. §§ 1395 et seq. The Court's jurisdiction in this matter is founded on 42 U.S.C. §§ 405(g), 1395ff(b). There being no dispute between the parties as to the applicable facts, it is appropriate that this matter be decided on the cross-motions for judgment on the pleadings.

 FACTS

 Plaintiff entered Mt. Sinai Hospital in New York City ("Mt. Sinai") on November 18, 1978, and was discharged on March 27, 1979, whereupon she became a resident of the Jewish Home and Hospital for the Aged, a skilled nursing facility in New York City (the "Jewish Home"). Plaintiff remained at the Jewish Home until February 6, 1980, when she was again admitted to Mt. Sinai, from which she was discharged on February 29, 1980.

 Plaintiff was denied Medicare coverage for her second stay at Mt. Sinai on the ground that on February 6, 1980, she was not eligible for a new "spell of illness", as defined in 42 U.S.C. § 1395x(a) and discussed more fully below. Upon plaintiff's timely request for a hearing, Administrative Law Judge Gerald Sheindlin (the "ALJ") found on May 28, 1981, that plaintiff was eligible for a new spell of illness and awarded her appropriate relief. On February 22, 1982, the Appeals Council, upon its own motion, issued an order reopening and revising the determination of the ALJ. The Appeals Council held that plaintiff's hospitalization on February 6 did not commence a new spell of illness and, as a result, her subsequent stay at Mt. Sinai was not covered by Medicare. It is from this order of the Appeals Council, constituting the final decision of the Secretary, that plaintiff appeals.

 ISSUES

 Plaintiff argues two grounds for setting aside the decision of the Appeals Council and reinstating that of the ALJ. First, plaintiff contends that defendant's decision finding that plaintiff was ineligible for a new spell of illness on February 6, 1980, is erroneous as a metter of law. Second, plaintiff claims that defendant lacked "good cause" to reopen plaintiff's case, as required by 42 C.F.R. § 405.750(b) (2) and 20 C.F.R. § 404.989(a) (3) where such opening occurs more than six months after an intermediate administrative determination.

 DISCUSSION

 Spell of Illness

 Section 1395(a) (1) of Title 42 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 this section.

 The term "spell of illness" is defined at 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."

 Because the ALJ found, and the parties do not contest, that the Jewish Home is a "skilled nursing facility" as defined by the statute; that plaintiff was admitted to the Jewish Home on a custodial basis only; and that plaintiff did not require or receive skilled nursing service during her stay there, the issue posed is whether plaintiff's custodial residence at the Jewish Home permits her to be characterized during that period as "neither an inpatient of a hospital nor an inpatient of a skilled nursing facility", 42 U.S.C. § 1395x(a) (2) (emphasis supplied). If plaintiff cannot be so characterized, as defendant maintains, then the spell of illness that began with her November 18, 1978, hospitalization continued throughout her subsequent residence at the Jewish Home and consequently prevented the commencement on February 6, 1980, of a new spell of illness. ...


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