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Friedman v. Secretary of Department of Health and Human Services

decided: May 18, 1987.

GEORGE FRIEDMAN, PLAINTIFF-APPELLANT,
v.
SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE



Appeal from a judgment of the United States District Court for the Eastern District of New York (Edward R. Korman, Judge) upholding a denial of Medicare benefits.

Kaufman, Winter, and Mahoney, Circuit Judges.

Author: Winter

WINTER, Circuit Judge:

This is an appeal from Judge Korman's decision upholding the denial by the Secretary of the Department of Health and Human Services ("Secretary") of Medicare benefits for a portion of Friedman's hospital stay during 1982. We initially issued a summary order affirming the judgment under our Rule 0.23, but have since vacated that order at the government's request. We again affirm, but on a different rationale.

BACKGROUND

George Friedman was admitted to the intensive care unit of Southampton Hospital on January 28, 1982, for treatment of head injuries sustained in a fall. Friedman, then age 79, also suffered from Parkinson's disease and phlebitis. He was diagnosed on admission as having a probable skull fracture with subdural hematoma. A Dr. Flores examined Friedman and ordered administration of an EEG and a CT scan.

During Friedman's stay at the hospital, he received various medications, including Dyazide, Haldol, and Tylenol, and his vital signs were monitored. No further testing or substantial changes in his care were ordered, however, after he was transferred out of intensive care on February 20, 1982. The physicians' progress records thereafter consist primarily of notations that Friedman's "condition [is] stable" and "unchanged." After March 6, the physicians' order sheet consists almost exclusively of the notation "renew orders." The nurses' notes indicate that after Friedman's Foley catheter was removed on March 9, his treatment consisted solely of occasional back care, administration of fleet enemas, and application of a posey jacket to restrain his movements. None of these treatments was administered on a daily basis.

On March 8, 1982, the hospital's utilization review committee ("URC") notified Friedman that his care as of that date required the "daily services of skilled personnel" rather than "the service of an acute-care hospital." The notice stated that Friedman's Medicare coverage would continue "provided that efforts are being made to find an alternate skilled facility for you." Notes from the hospital's Social Services Department reflect that from March 8 to September 29, it sought to place Friedman in a skilled nursing facility ("SNF").

On April 9, 1982, the hospital notified Friedman that his stay was no longer necessary and that he was no longer covered by Medicare. The Social Services Department decertified Friedman for coverage as of that date and notified his family of the decertification. The Department's notes indicate that a bed became available at a private nursing home on April 30, but that Friedman's family rejected it. The physicians' progress records in March and thereafter contain the repeated notation that Friedman was "awaiting ECF" (extended care facility). Two DMS-1 forms, filled out by a registered nurse and dated May 13 and September 9, indicated that Friedman's care should involve "skilled nursing supervision."*fn1 In September, New York Blue Cross ("NYBC"), the Medicare program's fiscal intermediary, informed Friedman that no further hospital insurance benefits would be allowed for care after April 12, 1982. Friedman remained in the hospital until October 6, 1982.

Friedman initially sought reconsideration of the termination of his benefits by NYBC. In her comments on the case, NYBC reviewer Nancy Johnsen noted that Friedman received "skilled services 1-28 [to] 4-12; beg[inning] 4-13 care supportive while awaiting SNF." On October 15, 1982, NYBC formally advised Friedman that it had determined that its original denial of benefits was correct.

Friedman, through his attorney,*fn2 then requested a hearing before an Administrative Law Judge ("ALJ") to challenge the denial of Medicare coverage. At the April 1983 hearing, Friedman's son-in-law, William Batkin, testified on Friedman's behalf, and Dr. Meyer Texon, Associate Professor of Medicine at the New York University Medical Center and President of the New York County Medical Society, testified as a medical adviser to the ALJ. Batkin testified that he had visited his father-in-law "a few times" during his nine-month hospitalization and that he had spoken twice to Friedman's doctor. Batkin could not recall the doctor's name, but testified that he would recognize it if he saw it. According to Batkin, the doctor said Friedman "belonged in a skilled nursing home and to send him back home would, literally, destroy and kill Mrs. Friedman," who was 80 years old and herself in sickly condition.

Dr. Texon had not examined Friedman personally but had reviewed his hospital records and medical history. Dr. Texon concluded that Friedman required neither acute hospital care nor skilled nursing care from April 13 to October 6, 1982. He based this conclusion on the facts that after April 12, Friedman's condition was stable, he no longer needed intravenous medication, and his treatment "consisted of just repeating orders at intervals as required." According to Dr. Texon, Friedman "needed care, but not skilled nursing care."

The ALJ denied Medicare benefits as of April 13, 1982, on the ground that Friedman did not require or receive skilled nursing care as of that date. The ALJ's ruling became the final decision of the Secretary when it was approved by the Appeals Council on October 31, 1983. The claimant then sought review of the Secretary's decision in the Eastern District of New York pursuant to 42 U.S.C. ยงยง ...


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