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LEVI v. HECKLER

November 23, 1983

HERMAN LEVI, By His Surviving Spouse and Executrix, Alice Levi, Plaintiff, against MARGARET M. HECKLER, Secretary of HEALTH AND HUMAN SERVICES, Defendant.


The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

 This is an appeal from a decision of the Secretary of Health and Human Services *fn1" 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. Levy'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":

 "[T]he 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 ...


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