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O'KEEFE v. BOWEN

September 12, 1986.

Josephine O'KEEFE, Plaintiff,
v.
Otis BOWEN, Secretary of Health and Human Services, Defendant; Louis SCHEIBELER, Plaintiff, v. Otis BOWEN, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: KORMAN

MEMORANDUM & ORDER

KORMAN, District Judge.

 Josephine O'Keefe and Louis Scheibeler were patients admitted to the Belair Nursing Home, a post-hospital extended care facility. Mrs. O'Keefe was admitted on December 12, 1980, after being treated at Massapequa General Hospital for a broken hip. Mr. Scheibeler was admitted on April 25, 1981, after being treated for cellulitis at Wyckoff Heights Hospital. *fn1" This proceeding was commenced pursuant to 42 U.S.C. § 405(g) and 1395ff(b) to obtain review of final determinations of the Secretary of Health and Human Services denying plaintiffs' claims for payment of benefits for the first hundred days of care at the Belair Nursing Home.

 The benefits which plaintiffs seek are available to qualified patients for the first one hundred days of their stay at a post-hospital extended care facility, such as the Belair Nursing Home, pursuant to the "Medicare Part A" portion of the program of health insurance for the aged or disabled (42 U.S.C. § 1395 et seq.). A qualified patient is one who, inter alia, requires post-hospital extended care services "because the individual needs or needed on a daily basis skilled nursing care . . . or other skilled rehabilitation services, which as a practical matter can only be provided in a skilled nursing facility on an inpatient basis". 42 U.S.C. § 1395f(a)(2)(B). Payment of benefits, however, is not authorized for any expenses incurred for post-hospital extended care services that are not "reasonable and necessary" for diagnosis or treatment. 42 U.S.C. § 1395y(a)(1)(A). Moreover, payment of benefits is proscribed for "custodial care" rendered at post-hospital extended care facilities. 42 U.S.C. § 1395y(a)(9); 42 C.F.R. § 405.310(g).

 The Administrative Law Judges here found that Mrs. O'Keefe "did not require or receive on a daily basis skilled nursing or rehabilitation services at the Bel Air [sic] Nursing Home" (O. Tr. 12) and that Mr. Scheibeler "did not receive skilled nursing services at the Belair Nursing Home" (S. Tr. 9). Specifically, the Administrative Law Judge in Scheibeler found that the services "rendered to the beneficiary at the nursing home were custodial in nature and therefore not covered by the Medicare program" (S. Tr. 9). These determinations became the final decisions of the Secretary when the Appeals Council denied the applications which were made for further review (O. Tr. 2-3; S. Tr. 2-3).

 The memoranda filed by the parties focused on the issue whether the decisions of the Secretary were supported by substantial evidence. At oral argument, however, the Assistant United States Attorney called attention to the absence in the records of a certification by a physician that either Mr. Scheibeler or Mrs. O'Keefe required skilled nursing or skilled rehabilitative care on a daily basis. Since such certifications are a prerequisite to recovery of benefits under the applicable Medicare regulations, their absence compels the affirmance of the denial of benefits, whether or not the Secretary's decisions are otherwise supported by substantial evidence.

 I

 Section 1395f(a)(2)(B) of Title 42 of the United States Code provides, in pertinent part, that payments for post-hospital extended care services may be made "only if . . . a physician certifies (and recertifies, where such services are furnished over a period of time, in such cases, with such frequency and accompanied by such supporting material appropriate to the case involved, as may be provided by regulations . . .) that . . . such services are or were required to be given because the individual needs or needed on a daily basis skilled nursing care. . . or other skilled rehabilitation services, which as a practical matter can only be provided in a skilled nursing facility on an in-patient basis, for any of the conditions with respect to which he was receiving in patient hospital services. . . [emphasis supplied]."

 The regulations promulgated by the Secretary mirror the statutory requirement. 42 C.F.R. § 405.1632. Specifically, in the case of a skilled nursing facility ("S.N.F."), 42 C.F.R. § 405.1632(f) provides that certifications and recertifications must be signed by "the physician responsible for the case or, if authorized by the responsible physician, by a physician on the staff of the facility, or the physician who is available in case of an emergency who has knowledge of the case." The regulations permit certification and recertification to be entered on or included in forms, notes, or other records a physician normally signs in caring for a patient. 42 C.F.R. § 405.1625(c). While there is no requirement that a specific procedure or specific forms be used, whatever procedure is used must permit "a verification to be made that the requirement of a physician certification" has been met. 42 C.F.R. § 405.1625(c).

 An examination of the records here does not permit "a verification to be made that the requirement of a physician certification" has been met. 42 C.F.R. § 405.1625(c). The physicians responsible for the care of Mrs. O'Keefe and Mr. Scheibeler at the hospitals in which they were patients, prior to transfer to the S.N.F., did not make the requisite initial certification. Indeed, in the case of Mrs. O'Keefe, the testimony of her son suggests that it was the opinion of the social worker, not the treating physician, that she should be placed in a skilled nursing facility (O. Tr. 26). While Mr. Scheibeler's son testified that his father's attending physician recommended a skilled nursing facility (S. Tr. 15), the "Standard Discharge Summary" at Wyckoff Heights Hospital, which was signed by Dr. E. Stevens, contains no recommendation or certification regarding a skilled nursing facility. Instead, in the space after the words "disposition and recommendations", Dr. Stevens observed only that the "patient should be taken out of bed daily, depending upon his general condition, and placed in a chair, length of time discretionary" (S. Tr. 61).

 Moreover, the certifications made by the physician or physicians on the staff of the Belair Nursing Home, even if authorized by "the physicians responsible for the[ir] case" (42 C.F.R. § 1632(f)), likewise do not constitute certifications that either Mrs. O'Keefe or Mr. Scheibeler required "on a daily basis skilled nursing care . . . or other skilled rehabilitation service . . ." 42 U.S.C. § 1395f(a)(2)(B). On the form prepared upon the initial physical examination at Belair, the physician in the O'Keefe case wrote, in the space following "certification for medical care": "Pt. needs RNC & PT for rehab" (O. Tr. 64). The handwritten note in the same space by the physician in Scheibeler appears to read: "Care ADL" (S. Tr. 62). Although the writing is barely legible, this note presumably means that the patient needs care with respect to all aspects of daily living. Such a certification, like the certification that Mrs. O'Keefe needed registered or routine nursing care and physical therapy for rehabilitation, is not the equivalent of a certification that these patients needed skilled nursing care or other skilled rehabilitation service "on a daily basis" for "any of the conditions with respect to which [they were] receiving in-patient hospital services." *fn2" 42 U.S.C. § 1395f(a)(2)(B).

 Care with respect to all aspects of daily living, without more, may constitute "personal care services" which, under the regulations, do not require the skills of qualified professional personnel and are thus not "skilled" services. 42 C.F.R. 409.33(d). Moreover, in the case of Mr. Scheibeler, there is a serious question as to whether the necessity for the prescribed care arose from "any of the conditions with respect to which he was receiving in-patient hospital services . . . "42 U.S.C. § 1395f(a)(2)(B). *fn3" The certification of the Belair physician does not even speak to this issue.

 II

 The only other arguably material documents in the file are the so-called DMS-1 forms. These forms, which are discussed in some detail in the opinions in Blum v. Yaretsky, 457 U.S. 991, 1006-1011, 1016-1027, 102 S. Ct. 2777, 2786-2789, 2792-2797, 73 L. Ed. 2d 534 (1982), are not related to the administration of the Medicare Act, which provides the authorization for the benefits at issue here, i.e., up to 100 days of S.N.F. care without regard to financial need. Rather, the DMS-1 forms are used by the State of New York to administer the Medicaid Act, pursuant to which the United ...


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