Appeal from an order of the United States District Court for the Eastern District of New York (Eugene H. Nickerson, Judge), affirming a denial by the Secretary of Health and Human Services of Medicare benefits on the ground that the claimant had not received skilled nursing care for a portion of a hospital stay. Because the claimant was receiving skilled nursing care for part of the period for which benefits were denied, the decision of the district court is affirmed in part and reversed in part.
Oakes and Winter, Circuit Judges, and Cedarbaum, District Judge.*fn*
This appeal concerns a denial by the Secretary of Health and Human Services ("Secretary") of Medicare benefits on the ground that the claimant did not receive skilled nursing care during a portion of a hospital stay. Because the claimant did receive skilled nursing care for part of the period for which benefits were denied, we affirm in part and reverse in part.
On September 4, 1981, William Hurley, who was seventy-one years old, was admitted to the Community Hospital at Glen Cove, New York and diagnosed by his treating physician, Dr. Robert Goodman, as having suffered a stroke. The admitting report states that he had suffered a sudden loss of consciousness and had fallen and struck the back of his head. During his hospital stay, Hurley was frequently agitated and confused. He was treated with sedatives and psychotropic drugs, including Librium, Thorazine, Vistaril and Haldol. Tests were run, including a CAT (computerized dial tomography) scan on September 10, 1981 which revealed moderate generalized cerebral atrophy. Possible alcoholism was also diagnosed. Apparently he suffered another fall on the night of September 13, 1981 but there was no evidence of head trauma.
In mid-September, his condition vacillated between alertness and confusion. Toward the end of the month, however, he was improved and more cooperative. On October 1, 1981, the Hospital Utilization Review Committee ("URC"), of which Dr. Goodman was Chairman, notified Hurley that he no longer needed acute care services in a hospital and that as of October 2, 1981, he would accordingly no longer be entitled to acute care hospital benefits under Medicare or Medicaid. The Social Work Department in the hospital began seeking an alternative placement for Hurley, and records indicate that by October 1, 1981, the Department had contacted twelve nursing homes without apparent success. Hurley, who had decided to appeal the URC's decision, remained in the hospital.
Hurley suffered a temporary relapse during the first eleven days of October. Early on the morning of October 1, 1981, Hurley was found walking in the halls, trying to leave the hospital. He was agitated and confused and refused to return to his room. Fifty milligrams of Thorazine was administered to Hurley at approximately 4:00 a.m. At 2:00 a.m. on October 2, Hurley was found wandering in another patient's room and cursing the nurses. He was returned to his bed and given an intramuscular injection of 25 milligrams of Vistaril. At 2:30 p.m. that same day, he was found on the wrong floor of the hospital and was restrained in a chair. At 4:00 a.m. on October 3, he was found to have locked himself in a bathroom with a pair of scissors. The scissors were taken away and he was put back to bed. At 12:30 p.m. he was again found wandering and was restrained in a chair. At dinner he repeatedly asked for alcoholic drinks and became agitated when told none were available. He tried to use the phone to call the police and was placed in restraint. After the restraint was removed at 8:30 p.m., Hurley was found by a guard in the hall looking for a pay phone. He was returned to bed.
At 12:30 a.m. on October 4, 1981, Hurley was found agitated and given an intramuscular injection of 1 milligram of Haldol and restrained. At 10:00 a.m. he received his morning care while in a chair restraint. At 10:00 p.m. he was awake in bed with a safety jacket on. At 1:30 a.m. on October 5, Hurley was found trying to get off the floor. He was given an intramuscular injection of 1 milligram of Haldol.
On October 6, 1981 Dr. Goodman saw Hurley. The two discussed where Hurley would go after discharge, either to a nursing home or home to his wife. On October 9 at midnight, Hurley was agitated and trying to get out of bed. He was restrained in a safety jacket and given an intramuscular injection of 2.5 milligrams of Haldol. At 6:00 a.m., he was awake and confused, asking for scissors to cut the safety jacket off. At 1:30 p.m. and again at 7:30 p.m. he was found wandering on a different floor. At 8:30 p.m. he was in bed with the safety jacket on. At 10:00 a.m. on October 10, 1981 Hurley was placed in a chair restraint. A chair restraint was also used at 2:30 p.m. on October 11.
While Hurley was observed as confused on several occasions between October 11, 1981 and his discharge on October 23, neither restraints nor medication were needed during this period. The record indicates that by October 20, Hurley had improved considerably, to the point that nursing home care would be unnecessary and that Hurley could be sent home.
On November 13, 1981, Hurley's appeal from the URC determination was denied by the Nassau Physician's Review Organization on the ground that there "[was] no documentation in the medical record to support the need for acute care services under Medicare guidelines." Hurley appealed this decision to the Secretary pursuant to Section 473 of the Health Care Financing Administrative Regulations, 42 C.F.R. § 473 (1987). At a de novo hearing before an Administrative Law Judge ("ALl") held on September 15, 1982, Hurley's counsel conceded that Hurley did not need acute care after October 1, 1981. However, he also argued that Hurley was entitled to Medicare benefits after this date because he required skilled nursing care and remained in the hospital only because no bed in a skilled nursing home was available. Hurley's wife testified that Dr. Goodman had advised her of the necessity of such care. A letter from Dr. Goodman dated April 6, 1982 stating that "[d]uring this time [Hurley] was awaiting placement in a skilled nursing facility as it was felt he had a permanent organic brain syndrome which would require continued skilled nursing care" was also submitted.*fn1
On October 26, 1982, the ALJ affirmed the denial of benefits on the grounds that the evidence indicated that Hurley needed only custodial care during the period between October 2 and October 23, 1981 and that there was no evidence in the record that a skilled nursing home was unavailable. Hurley sought review from the Appeals Council, which vacated the ALJ's decision and remanded because the ALJ had failed to seek evidence from an impartial medical advisor.
A medical advisor was retained, and he reviewed Hurley's hospital records. At a hearing on September 13, 1983, the medical advisor testified that, based upon his review of Hurley's records and the transcript of the prior hearing before the ALJ, Hurley did not need acute medical care after October 2, 1981 or skilled nursing care after October 11, 1981. However, the medical advisor described the period between October 1 and October 11, 1981 as a "grey area" because anti-psychotic ...