Rescinded 1981

SSR 75-29c: Sections 1861(b) and 1862(a)(1) and (9) (42 U.S.C. 1395x(b) and 1395y(a)(1) and (9))—Hospital Insurance Benefits—Inpatient Hospital Services—Level of Care—Weight of Physician's Opinions

20 CFR 405.116 and 405.310(g) and (k)

SSR 75-29c

Halse v. Weinberger, USDC Northern District of Iowa, No. C 74-2007 (12/10/74)

The 74-year old beneficiary was a hospital inpatient from August 4 to August 26 and from September 4 to October 4, 1971, in the same hospital. Her claim for hospital insurance benefits resulted in payment for the period of August 4 to August 11 only. The claimant contested she should have received benefits for the entire period. Held, the claimant's condition from August 4 to August 11, 1971, was of sufficient severity to require covered inpatient hospital services, but beginning August 12 the services became custodial in nature and thus excluded under the Act. Further held, the examining physician's opinions are to be weighed with all evidence before the Secretary, but are not of controlling weight rather, conflicting medical testimony and inference drawn therefrom are to be resolved by the Secretary.

McMANUS, Chief Judge:

This matter is before the court for review of a final decision made by the Secretary of Health, Education, and Welfare denying certain Medicare benefits.

Plaintiff Maggie Halse, age 74 at the time, incurred expenses while an inpatient at Winneshiek County Memorial Hospital, Decorah, Iowa, from August 4 to August 26, 1971, and again from September 4 to October 4, 1971. Upon filing a claim for Medicare benefits under Title XVIII of the Social Security Act, 42 U.S.C. §1394 et. seq., payment of hospitalization benefits under Part A of Title XVIII was initially made by the intermediary insurance carrier only for the period August 4 to August 11, 1971.

This determination was upheld after reconsideration on April 10, 1972. Plaintiff's son thereupon requested a hearing before an administrative law judge, who held said hearing in Waterloo and issued an order on August 29, 1973, declaring the expenses for the full term of forty-four days of hospital confinement payable under the Act.

On its own motion, the Appeals Council reviewed the Hearing Examiner's decision and reversed his conclusions, thereby reinstating the initial administrative determination to allow payment for only the August 4 to August 11 hospitalization costs. Plaintiff asks the court to review the decision of the Appeals Council pursuant to 42 U.S.C. §1395ff(b)(1)(e) since the amount in controversy exceeds $1000.00.

The central issue to be resolved in the administrative hearings was whether plaintiff's hospital care for the periods August 12 to August 26 and September 4 to October 4 was "inpatient hospital services" as defined in 42 U.S.C. §1395x(b) and 20 CFR 405.116, or was merely "custodial care" excluded from coverage by 42 U.S.C. §1395y(a)(9) and 20 CFR 405.310(g). The Appeals Council concluded that only the treatment furnished plaintiff from August 4 to August 11 required the constant availability of hospital medical personnel and facilities so as to constitute inpatient medical services.

The court's function in reviewing a final decision by the Secretary denying reimbursement of hospital expenses under Part A of Title XVIII, as with judicial review of other final decisions under the Act by the Secretary, is prescribed in §205(g), 42 U.S.C. §405(g). Johnson v. Richardson, 336 F.Supp. 390, 391 (E.D. Pa. 1971). The court's role is limited solely to ascertaining whether the Secretary's determination is supported by substantial evidence. Brasher v. Celebrezze, 340 F.2d 413 (8th Cir. 1964); Delk v. Richardson, 365 F. Supp. 627 (D. S.C. 1973); Johnson v. Richardson, supra; Reams v. Finch, 313 F. Supp. 1272 (N.D. Ia. 1970), aff'd, 428 F.2d 1225 (8th Cir. 1970).

The legal standards generally applicable in review actions of this type were summarized in Brasher, supra at 414:

[A] the claimant has the burden of establishing his claim; (b) the Act is remedial and is to be construed liberally; (c) the Secretary's findings and the reasonable inferences drawn from them are conclusive if they are supported by substantial evidence; (d) substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (e) it must be based on the record as a whole; (f) the determination of the presence of substantial evidence is to be made on a case-by-case basis; (g) where the evidence is conflicting it is for the Appeals Council on behalf of the Secretary to resolve those conflicts: . . .

The Appeals Council concluded, inter alia, as follows:

We find that as of August 12 and on readmission September 4, that all the medical evidence of record reveals no basis for disputing the prior determination that the claimant received general institutional care. A review of the records confirms that claimant received only minimal treatment consisting of diet, oral medical and bed rest. While the record shows during some days she was experiencing some pain and restlessness, no remarkable medical treatment was instituted, or change of orders was found to be necessary to relieve said condition. (Tr. p. 7.)

The court recognizes that less weight need be given to the Appeals Council's findings when it rejects the Hearing Examiner's findings than when it sustains the latter, and that the Hearing Examiner's report must be consulted to determine substantiability of the evidence. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 491-97, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Tucker v. Celebrezze, 220 F.Supp. 209, 211 (N.D. Ia. 1963). The Hearing Examiner placed primary reliance upon written comments made by Dr. Larson, the attending physician, who did request that the Secretary allow plaintiff's total hospitalization claim. (Tr. p. 28.)

The record discloses that two other physicians, who reviewed plaintiff's medical history but did not personally examine her, decided that her hospital treatment from August 12 thenceforth was of a custodial nature. (Tr. pp. 28, 65, 113, 179.) The examining physician's opinions are not of controlling weight in Medicare cases because of the potential personal interest which might be at stake on the physician's part. Weir v. Richardson, 343 F. Supp. 353, 357 9S.D. Ia. 1972). See Johnson v. Richardson, supra at 394-95. Rather the attending doctor's statements are properly weighed against all other evidence before the Secretary.

Reviewed in this light, it is the court's view that the decision of the Appeals Council is supported by substantial evidence. Conflicting medical testimony and inferences drawn therefrom are to be resolved by the Secretary. Martin v. Finch, 415 F.2d 793 (5th Cir. 1969); Dixon v. Gardner, 406 F.2d 1035 (4th Cir. 1969); Johnson v. Richardson, supra.

Plaintiff was suffering from several chronic conditions, including osteoarthritis, stroke residuals, and parkinsonism, when initially admitted to the hospital on August 4. At that time she also exhibited a urinary infection, but this infection was cleared up by August 12. Plaintiff was reimbursed for her expenses up to this point.

Thereafter she received oral medications, soft diet, routine lab tests, and physical assistance in walking and other activities, but no specialized medical treatment or physical therapy which would qualify her care as inpatient services. See Johnson v. Richardson, supra. Cf. Schoultz v. Weinberger, 375 F. Supp. 929 (E.D. Wis. 1974).

The attending physician's progress notes indicate that plaintiff was readmitted to the hospital on September 4 for "nursing care" and had been specifically advised that Medicare might not cover her hospitalization expenses. (Tr. p. 123.) The same notes state that her "general condition [was] about same" on September 30. (Tr. p. 124.) While both the physician's and the nurses' comments show that plaintiff's emotional state varied considerably from day to day, no acute physical problems or treatment thereof is apparent from the notes.

The court sympathizes with the debilitating effects of plaintiff's chronic illnesses and the financial strain which her plight places upon family financial resources, but the Medicare program was designed to reimburse only expenses for the sophisticated health services which must be rendered by skilled professional personnel. The evidence before the Appeals Council reasonably supports their conclusions that benefits should be denied for the period indicated.

It is therefore


The decision of the Secretary is affirmed.