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Chamberlain v. Leavitt

February 10, 2009

MARY CHAMBERLAIN, AS EXECUTRIX OF THE ESTATE OF MARGARET R. CHAMBERLAIN, PLAINTIFF,
v.
MICHAEL LEAVITT, AS SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Mary Chamberlain brings the above-captioned action pursuant to 42 U.S.C. § 1395ff(b) of the Social Security Act, seeking review of the decision of the Secretary of Health and Human Services ("Secretary") denying Medicare benefits to Margaret Chamberlain ("Beneficiary" or "Patient") under 42 U.S.C. § 1395d(a)(2)(A). (Dkt. No. 1). This action involves payment for services and treatment from December 17, 2001 through December 28, 2001. Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

II. FACTUAL BACKGROUND

On December 3, 2001, Margaret Chamberlain was admitted to Fort Hudson Nursing Home.*fn1 The patient was a resident of Fort Hudson until March 2002 and died in April 2002. (T. 204). Plaintiff brought this action on her mother's behalf.

Admission Records

On December 3, 2001, the patient, then 84 years old, was transferred from Eden Park Nursing Home in Glens Falls, N.Y. to Fort Hudson Nursing Home in Fort Edward, N.Y. (T. 55). Upon admission, the attending physician was Dr. Larson. (T. 199BR). At the time of admission, the attending registered nurse prepared a Patient Transfer Form and noted the patient's diagnosis as "Alzheimer's and dementia".*fn2 (T. 55). The nurse noted the patient had a history of deep vein thrombosis, paranoid behavior, atrial fibrillation, vascular dementia, alcoholism, vitamin B12 deficiency, depression and right breast cancer with lymphedema of the right arm.*fn3 (T. 61). The patient was noted as "pleasant and quiet with limited mobility". (T. 199BR). The nurse also noted the patient could feed herself with her left hand but needed assistance to eat. (T. 56). The nurse noted the patient was previously "determined not to be a candidate for further therapy including physical, occupational, and speach [sic] secondary to her dementia and lack of progress in therapies at time of admission". (T. 55).

The nurse noted that on October 8, 2001, Dr. Mastrodeneto recommended a fat based nutritional supplement.*fn4 (T. 56). The nurse also noted that on November 5, 2001, Dr. Jorgensen recommended discontinuing physical therapy and "no further treatment from therapies".*fn5 (T. 56). The nurse also noted that on November 20, 2001, Dr. Lenihen found the patient's symptoms consistent with dementia with no evidence of Parkinson's or depression.*fn6 (T. 56). The nurse noted plaintiff frequently visited her mother and the patient had a brother in Buffalo who was "supportive". (T. 56).

On December 3, 2001, Dr. Larson prepared a Certification stating "SNF services are required to be given on an inpatient basis because of the above named patient's need for skilled nursing care on a continuing basis for the condition(s) for which he/she was receiving inpatient hospital services prior to his/her transfer to the SNF". (T. 199E).

On December 3, 2001, a Comprehensive Care Plan was prepared targeting the patient's various problems including impaired decision making due to dementia, poor nutrition and incontinence, deficits in self care, lymphedema, anemia, risk of bleeding and unsteady gait/weakness. (T. 199AP - 199AV).

Therapy Records

On December 4, 2001, the patient underwent an evaluation by a physical therapist.*fn7 (T. 58). The patient was diagnosed with "difficulty ambulating/unsteady gait". (T. 58). The therapist noted the patient required minimal assistance/supervision for activities of daily living and mobility. (T. 199AB). The therapist recommended the patient receive physical therapy "for maintenance" twice a week for 30 days. (T. 58, 199AB). From December 17, 2001 through December 28, 2001, the patient received three physical therapy treatments. (T. 63).

On December 7, 2001, an occupational therapist evaluated the patient.*fn8 (T. 199AA). The therapist noted the patient was alert and oriented with decreased short and long term memory. (T. 199AA). The therapist noted the patient ate independently but required assistance dressing, toileting, bathing and with hygiene. (T. 199AA). The therapist noted "no further occupational therapy required". (T. 199AA).

On December 17, 2001, an occupational therapist evaluated the patient for "screening of adaptive silverware and plate".*fn9 (T. 62). The therapist noted the patient was able to feed herself with her left hand, manipulate a fork successfully and drink from a variety of containers. (T.62). The therapist noted the patient had difficulty with her spoon. (T. 62). The therapist recommended a plate guard and built-up handle for the patient's spoon. (T. 62).

On December 27, 2001, the patient's social worker, Tina M. Golden, noted the patient was "settling in" but "her daughter has some adjustment problems". (T. 65).

Progress Records

On December 12, 2001, a "Progress Note" was prepared entitled ...


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