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April 17, 1985

CAROL A. ROTH, as Executor of the Estate of FLOYD W. STRIFFLER, Plaintiff,

The opinion of the court was delivered by: CURTIN

This is an appeal from a final decision by the Secretary of Health and Human Services denying payment of extended care benefits for care received by the decedent while he was in a skilled nursing facility. Jurisdiction is based upon section 1869(b) of the Social Security Act, 42 U.S.C. § 1395ff(b). Both parties have moved for judgment on the pleadings.


 Floyd Striffler was transferred from Lockport Memorial Hospital to the Briody Nursing Home on December 9, 1981. Briody is a skilled nursing care facility. On the same day, Striffler's daughter was notified that the services to be furnished to her father did not meet the requirements for coverage under Medicare. This finding was affirmed by the Medicare intermediary and upon reconsideration. A hearing before an Administrative Law Judge [ALJ] was held in September 1982. The ALJ issued his decision on October 7 and concluded that Mr. Striffler did not require or receive skilled nursing care or other skilled rehabilitative services on a daily basis at any time on or after December 9, 1981. The ALJ's decision became the final decision of the Secretary on April 14, 1983, when the Appeals Council denied review. This appeal followed.


 On November 10, 1981, at age 78, Mr. Striffler was admitted to Lockport Memorial Hospital with a fractured left hip and atherosclerotic myocardial disease. Surgery was performed on his hip on the date of admission. A long-stemmed prosthesis was inserted while Mr. Striffler was under a spinal anesthesia.

 Mr. Striffler also suffered from confusion during his hospital stay. Haldol was prescribed to address this problem, and dosages were reduced over time. A transurethral resection of the prostate was performed on December 1, 1981. Mr. Striffler experienced some trouble urinating and required catheterization. He was discharged from Lockport Memorial on December 9, 1981.

 Mr. Striffler entered Briody Nursing Home on December 9. His treatment program included gait training, a bland diet, and bladder training, but it is not clear that he ever received bladder training. He could walk with assistance of a walkerette (Tr. at 95). The record also indicated that he was given aldol for "restlessness" and "agitation" from January 7 - 15, 1982. This prescription was effective. During the same period, motrin was prescribed for arthritis. Mr. Striffler had also been given aldol from December 21 through December 25, 1981. Tr. at 85. Clots were found in his urine on December 23. No clots were noted thereafter. Id.

 On the forms reflecting Mr. Striffler's transfer to Briody, it was noted that his condition was unstable, so that a registered nurse needed to evaluate the need for medication and treatment on a daily basis. It was also noted that there was a "high probability that complications would arise in caring for the patient without skilled nursing supervision of the treatment program on a daily basis." Tr. at 101. Moreover, Mr. Striffler was said to need "complex skilled nursing supervision" seven days a week and skilled physical therapy a minimum of five days a week. Tr. at 101-02. The record contains a summary of his physical therapy. The summary consists of reports by physical therapists indicating some progress but continued problems with rapid foot movements. Tr. at 92-96.

 A report dated January 6, 1982, was filed by Dr. C. R. Gona. Dr. Gona was the physician who performed the transurethral resection upon Mr. Striffler. He noted that Mr. Striffler was blind, had very poor hearing, and was prone to confusion. He concluded that the patient had "multiple problems" and that he needed "skilled nursing care and rehabilitation." Tr. at 106. However, Dr. Gona's report listed Mr. Striffler's age as 89, when he was actually 78. Another physician, Dr. Carl Contrad, also stated that Mr. Striffler required a skilled nursing facility due to severe osteoarthritis. Tr. at 108.

 Curiously, the forms indicating the need for skilled care and close supervision were prepared by the same registered nurse who prepared the notice sent to Mr. Striffler's daughter indicating non-coverage under Medicare. Compare Tr. pp. 50, 101-02. The notice of non-coverage was the only statement in the record from a professional indicating that Mr. Striffler did not need skilled care. The ALJ stated in his opinion that forms prepared by hospital personnel "clearly stated" that Mr. Striffler needed "custodial care. " The ALJ did not refer to any particular report. The Secretary's brief echoes the ALJ's remark. The Secretary also does not cite a hospital report. Instead, she cites the ALJ's unannotated statement. The court's review of the record found no "clear statement" to this effect from hospital personnel.


 The Social Security Act provides that benefits shall be paid to eligible persons who receive "post-hospital extended care services." 42 U.S.C. § 1395d(a)(2). Post-hospital extended care services are services given in a skilled nursing facility after a period of hospitalization of at least three days. 42 U.S.C. § 1395x(i). Extended care services include nursing care provided under the supervision of a registered nurse, physical therapy, medication, and other services provided by skilled nursing facilities. 42 U.S.C. § 1395x(h). However, benefits are not paid for "custodial care." 42 U.S.C. § 1395y(a)(9).

 Custodial care is not defined in the Social Security Act. Courts generally define it as care which can be provided by non-professionals and which does not require the continued attention of trained personnel. Kuebler v. Secretary of Health and Human Services, 579 F. Supp. 1436, 1438 (E.D.N.Y. 1984); Hayner v. Weinberger, 382 F. Supp. 762, 766 (E.D.N.Y. 1974); Samuels v. Weinberger, 379 F. Supp. 120, 123 (S.D. Ohio 1973).

 The Secretary's regulations provide that post-hospital skilled nursing care is covered only if the services are 1) ordered by a physician, and 2) require skills of persons such as physical therapists. 42 C.F.R. §§ 409.30, 409.31(a). A skilled service is one which is "so inherently complex that it can be safely and effectively performed only by, or under the supervision of, professional or technical personnel." 42 C.F.R. § 409.32(a). Services which are not normally ...

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