The opinion of the court was delivered by: HECKMAN
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of judgment. Plaintiff initiated this action pursuant to 42 U.S.C. § 405(g) to seek review of the final decision of the Secretary of Health and Human Services (the "Secretary") denying payment under Medicare Part A, 42 U.S.C. § 1395 et seq., and the Secretary has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the following reasons, the Secretary's motion is denied and the case is remanded for calculation of benefits.
Plaintiff brought this action on behalf of his mother, Mary Pfalzgraf, who died on April 3, 1992. On March 28, 1991, Mrs. Pfalzgraf was admitted to Lake Shore Hospital. She was 86 years old at the time. She had become unresponsive at home, and was not eating or drinking. Her diagnosis upon admission to the hospital was ketoacidosis secondary to dehydration, hyperosmolar acidosis, diabetes mellitus, senile dementia, urosepsis, rheumatoid arthritis, arteriosclerotic cardiovascular disease, Klebsiell pneumonia, multiple decubital changes in the buttocks and sacral area, and incontinence (T. 93).
She responded positively to intravenous hydration and medication, and was gradually put on oral medications. However, as noted by Dr. Russell Joy in his discharge summary, Mrs. Pfalzgraf "was unable to return home to her former status, and long-term placement was indicated" (id.); see also Report of treating physician Dr. George Groff ("Her general poor health, skin breakdown, and so on suggested she is in need of Social Services evaluation and that perhaps the family is not able to care for her appropriately at home")(T. 92).
On April 22, 1991, Mrs. Pfalzgraf was discharged to the Park Shore Health Care Center. a skilled nursing facility ("SNF") (id.). Upon admission to Park Shore, Mrs. Pfalzgraf was alert and oriented to self, but orientation to time and place was "difficult to assess" due to her limited verbalization (T. 110). Communication was limited to grunts and one-syllable words (T. 207). She had a Stage II decubitus ulcer on her left hip (T. 89). She weighed sixty-nine pounds (id.). She was incontinent of bladder and bowel, and required total care of activities of daily living ("ADL's") (T. 90).
On April 22, 1991, Dr. Nestor Cifuentes, Park Shore's medical director, examined Mrs. Pfalzgraf. He summarized her condition as "deteriorating" as a result of "dementia, arthritis 4 [four] extremities, stiffness, diabetes" (T. 134). Her prognosis was poor. He noted her long history of chronic diseases, and that she was "getting worse progressively" (T. 133). He recommenced "medical care as needed" (id.). A "Physician's Order Data Record" dated April 22, 1991, signed by Dr. Cifuentes, indicated that Mrs. Pfalzgraf required a "skilled" level of care (T. 118).
On April 25, 1991, plaintiff was notified by Park Shore that Mrs. Pfalzgraf's care would not be covered by Medicare (T. 135). As stated in the "Skilled Nursing Facility (SNF) Determination on Admission," dated April 24, 1991:
Medicare covers medically necessary skilled nursing care needed on a daily basis. You only needed oral medications, assistance with your daily activities and general supporting services. There is no evidence of medical complications or other medical reasons that required the skills of a professional nurse or therapist to safely and effectively carry out your plan of care. Therefore, we believe your care cannot be covered under Medicare.
On October 29, 1993,
Gail Lavezzari, R.N., from Medicare Part A sent plaintiff a letter in which she stated as follows:
(T. 136). The letter informed plaintiff that Medicare did not cover any of the services provided to Mrs. Pfalzgraf at Park Shore during the period from April 22, 1991 through May 31, 1991 (T. 137).
Plaintiff requested a hearing to review this determination. On June 28, 1994, a hearing was held before Administrative Law Judge ("ALJ") Charles J. Fiorella (T. 239-62). Plaintiff did not appear at the hearing, and his presence was deemed waived.
On August 3, 1994, ALJ Fiorella found that the services provided to Mrs. Pfalzgraf by Park Shore were "entirely custodial in nature," and were therefore not covered by Medicare (T. 74).
On December 30, 1994, the Appeals Council remanded the case for further consideration, finding that the ALJ's determination "[did] not reflect consideration of the beneficiary's total condition and its relationship to the need for skilled services as required by 42 C.F.R. 409.33(a)" (T. 52). On August 16, 1995, a further hearing was held before ALJ Fiorella (T. 177-237). Plaintiff testified, and was represented by counsel.
On December 19, 1995, ALJ Fiorella again found that the services provided to Mrs. Pfalzgraf during the period at issue were "custodial in nature" (T. 14). ALJ Fiorella stated that he "considered the beneficiary's total condition during the period . . . and [found] no evidence that ...