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Estate of Frohnhoefer v. Leavitt

March 19, 2007


The opinion of the court was delivered by: Feuerstein, J.


I. Introduction

Plaintiff, the Estate of Theresa Frohnhoefer ("Plaintiff"), appeals the final determination of the defendant, Michael O. Leavitt, Secretary of the United States Department of Health and Human Services (the "Secretary"), denying Medicare coverage for care provided to beneficiary Theresa Frohnhoefer (the "Beneficiary" or "Frohnhoefer"). The Secretary now moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons set forth below, the Secretary's motion is granted.

II. Statutory and Regulatory Background

A. The Medicare Program

The Medicare program, established under Title XVIII of the Social Security Act (commonly known as the Medicare Act, codified at 42 U.S .C. § 1395 et seq.), pays for covered medical care to eligible elderly and disabled persons. The Department of Health and Human Services ("HHS"), through the Secretary, administers the Medicare program and has delegated this function to the Center for Medicare and Medicaid Services ("CMS").

Medicare "Part A," is a hospital insurance program covering inpatient care and certain post-hospital services including home health services furnished by a home health agency. 42 U.S.C. §§ 1395c-1395i-5. This case involves Part A payments to post-hospital skilled nursing facility ("SNF") care.

To receive Medicare coverage for post-hospital SNF care, the beneficiary must have been an inpatient in a qualifying hospital for at least three (3) consecutive calender days, not including the day of the discharge, and must have been discharged in or after the month he or she became eligible for Medicare. 42 C.F.R. § 409.30(a). Further, the beneficiary must be in need of post-hospital SNF care, be admitted to a SNF facility, and receive such care within thirty (30) days after the date of discharge from the hospital. 42 C.F.R. § 409.30(b)(1). Medicare benefits include coverage for up to one hundred (100) days of post-hospital extended care services during any spell of illness. 42 U.S.C. § 1395d(a)(2)(A).

For Medicare to pay the costs of post-hospital extended care services, a physician, nurse practitioner, or clinical nurse specialist must certify and recertify that such services are or were required because the individual needs daily skilled nursing and/or rehabilitative care for any condition for which the beneficiary received inpatient hospital services. 42 U.S.C. § 1395f(a)(2)(B). The initial certification must be obtained at the time of admission of the beneficiary into the SNF. 42 C.F.R. § 424.20(b)(1). An initial recertification is required within fourteen (14) days of post-hospital SNF care. 42 C.F.R. § 424.20(d)(1). Subsequent recertifications are required at least every thirty (30) days after the first recertification. 42 C.F.R. § 424.20(d)(2).

In general, covered skilled nursing or rehabilitative services are (1) ordered by a physician; (2) require the skills of technical or professional personnel; and (3) are furnished directly by, or under the supervision of, such personnel. 42 C.F.R. § 409.31(a). In addition, these services must be needed by the patient on a daily basis and "must be ones that, as a practical matter, can only be provided in a SNF, on an inpatient basis." 42 C.F.R. § 409.31(b).

The list of services that qualify as skilled nursing services includes: (1) intravenous or intramuscular injections or intravenous feeding; (2) tube and gastrotomy feeding; (3) aspiration; (4) insertion and replacement of catheters; (5) application of dressings; (6) treatment of widespread skin disorders; (7) physician ordered heat treatments; (8) administration of medical gases; and (9) rehabilitation such as bowel and bladder training programs. 42 C.F.R. § 409.33(b).

Medicare expressly excludes coverage items and services that are not medically reasonable and necessary, as well as "custodial services." 42 U.S.C. § 1395y(a)(1)(A), (9). Custodial care consists of care which does not satisfy the requirements for coverage as SNF care.

42 C.F.R. § 411.15(g). Personal care services that do not require the skills of qualified technical or professional personnel are not skilled services and therefore are not covered by Medicare. 42 C.F.R. § 411.15(d). Such personal care services include administration of oral medication; bathing and treatment of minor skin problems; assistance in dressing, eating and going to the toilet; and general supervision of previously taught exercises and assistance with walking. Id. These personal care services are considered custodial care and are generally not covered by Medicare. See 42 C.F.R. § 411.15(g). However, overall management and evaluation of a care plan involving personal care services may constitute skilled services when, in light of the patient's condition, the aggregate of these services require the involvement of technical or professional personnel. 42 C.F.R. § 411.33(a)(1)(I). In addition, observations and assessment by a technical or professional person may constitute skilled service when such skills are required to identify the patient's need for modification of treatment or for additional procedures until his or her condition is stabilized. 42 C.F.R. § 409.33(a)(2).

Pursuant to the Medicare statute's "limitation on liability" provision, a beneficiary is not liable for services that are not covered by Medicare if he or she could not reasonably be expected to know that they were not covered. 42 C.F.R. ยง 1395pp(a). A beneficiary is considered to have known that the services were not covered if written notice has been given to the beneficiary or someone acting on his or her behalf, explaining that the services did not meet Medicare coverage guidelines. 42 C.F.R. ...

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