Rescinded 1981

SSR 73-34c: Sections 1862 (a) (9) and 1861(i) (42 U.S.C. 1395(y) and 1395(x) (i) ).-Hospital Insrance Benefits Skilled Nursing Facility Failure to Provide Extended Care Services Within 14 Day Transfer Period

20 CFR 405.120

SSR 73-34c

Garoni v. Richardson, Civil Action No. 1515-71, U.S.D.C., D. N.J. (6/20/72)

Where hospital insurance beneficiary, following a qualifying 3-day hospital stay, entered a participating skilled nursing facility within 14 calendar days of discharge from hospital, but neither required nor received covered extended care services within such 14 day period, held, beneficiary not entitled to have benefits paid on her behalf for the stay in skilled nursing facility even though beneficiary later did receive skilled nursing care before being discharged from the facility; timely admittance must be coupled with level of care prescribed by statute and regulations, for beneficiary entitlement to payment for services provided to her.

FISHER, District Judge: Plaintiff Chadwick Garoni, executor for the estate of the deceased Mrs. Amelia Garoni, seeks judicial review of a final decision by the Secretary of Health, Education and Welfare, in accordance with 42 U.S.C. 405(g). The challenged decision denied payment of benefits to the Jersey Shore Medical Center, Neptune, New Jersey, under Part A of the Social Security Act [1] for alleged extended care provided Mrs. Garoni from December 22, 1969 and thereafter. Accordingly, I have examined the record, findings and conclusions of the Hearing Examiner.

Mrs. Amelia Garoni was hospitalized on December 10, 1969, being taken by ambulance from her home to the Jersey Shore Medical Center. Her illness was diagnosed as carcinoma of the ovary with metastasia. Twelve days later Mrs. Garoni was transferred from the hospital unit into the Booker Pavilion, the extended care facility of the Jersey Shore Medical Center. Plaintiff seeks extended care benefits for her stay in this facility A, under 42 U.S.C. 1395 (d). [2] Mrs. Garoni remained at the Booker Pavilion for over 100 days but the claim is only for payment for 100 days, as provided by the statute. This claim teas rejected by the Secretary of Health, Education and Welfare in adopting the recommendation of the Social Security Administration's Hearing Examiner.

The basis for the disallowance of plaintiff's claim was because of the Secretary's interpretation of Section 1861 ( i ) of the Social Security Act, 42 U.S.C. 1395(x) ( i ). This section allows payment for extended care treatment if it is rendered within fourteen days of a qualifying hospital stay. Both sides here agree that Mrs. Garoni's stay in the Jersey Shore Medical Center's hospital facility teas such a qualifying star. There is disagreement. However, as to when she began receiving skilled, rather than merely custodial, care in the extended care facility. If the Secretary's interpretation is correct, Mrs. Garoni did not receive the covered care within fourteen days of her discharge from the hospital. Plaintiff takes the position that the statutory provision means only that a patient has to be admitted to an extended care facility within fourteen days from a qualifying hospital stay to recover benefits, with no requirement as to when skilled services begin.

This Court is in agreement with the Secretary's interpretation of the fourteen day provision. Reading the provision in this manner serves to create a direct nexus between the hospital stay and the extended care treatment.

Once this judgment is made, it becomes necessary to determine whether Mrs. Garoni received the type of care that would be covered [3] within the initial post-discharge two weeks. The Secretary has found that she did not. In situations involving judicial review of this type of administrative decision, the Court's role is clear.

This Courts decision to review the challenged decision is limited to the determination of whether that decision is supported by substantial evidence. 42 U.S.C. 405 (g) states, "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . .". To go further would be to overstep well established judicial guidelines" . . . where there is substantial evidence to support the Secretary's determination, the trial court has no power to overrule that determination". Celebrezze v. Zimmerman, 339 F. 2d 196 (5th Cir. 19641 at 497 : and similarly Walker v. Altmeyer, 137 F. 2d 531 (2nd Cir. 19431: United States and Social Security Board v. LaLone, 152 F. 2d 43 (9th Cir. 1945) ; and Livingstone v. Folsom, 231 F. 2d 5 (3rd Cir. 1956).

On the record before the Court I must conclude that the decision of the Secretary was supported by substantial evidence. A careful and thorough review of the record has convinced the court that the Hearing Examiner was acting in accord with the weight of the evidence when he disallowed plaintiff's claim.

When Mrs. Garoni was admitted to the extended care facility, she was independently ambulatory, alert, with hearing and sight normal, able to feed herself and communicate. She exhibited good cooperation with the staff and was on a regular diet. She received no intravenous fluids or any sort of therapy. All medication was oral and self administered. The patient did exhibit some dizziness and did require some assistance in bathing.

Section 1861 of the Social Security Act provides for coverage for extended care treatment for "skilled nursing care and related services for patients who require medical or nursing care . . .". Section 1862 of the Social Security Act states at (a) that "no payment may be made . . . for any expenses incurred for items or services . . . (9) where such expenses for custodial care . . ." What services Mrs. (Garoni received during the crucial fourteen daddischarge period, were only custodial in nature and, thus, not the type of service covered by the Act. These services were not the sort which involved the rendering of skilled nursing care or medical expertise.

Plaintiff has raised questions as to whether Mrs. Garoni did in fact receive that skilled type of treatment during her first fourteen days in the extended care facility. This Court, as noted earlier, is bound to accept the findings of the Secretary as to facts, so long as these findings are supported by substantial evidence. Here his findings are supported in the proofs and the Court will not disturb them.

[1] Reference is to Part A of Medicare, Title XVIII of Social Security Act. [Ed.]

[2] Reference is to section 1812 of Title XVIII of the Social Security Act. [Ed.]

[3] Such care refers to skilled nursing services that would qualify an individual for Payment of extended care facility benefits. [Ed.]