20 CFR 405.126, 405.127, 405.128, 405.310 and 405.1627(a)(2)
Where claimant for hospital insurance benefits was hospitalized November 26, her condition stabilized by December 16, and constant availability of physician and complex medical equipment generally found only in hospital were no longer required but physician recertified her continued need for hospitalization pending availability of bed in skilled nursing facility, held, care received after December 16, a supportive level of care, does not come within purview of section 405.1627 of Social Security Administration Regulations No. 5, which is applicable only if evidence demonstrates need of a covered level of post-hospital extended care services and not merely custodial care.
P, a hospital insurance beneficiary, was admitted to X Hospital by stretcher on November 26, 1970, after a fall in which her left shoulder was fractured. Four years previously she had fractured a hip and had experienced a gradual deterioration of physical powers with a loss of ability to ambulate and loss of coordination in her limbs. Other ailments included double vision, a marked stress tremor, and a poor appetite. It was noted that she fell easily, could barely feed herself, and had no urinary control.
Physician's orders called for a house diet as tolerated, routine lab tests, chest X-ray, Demerol for pain as needed, and medication for Parkinson's disease. An indwelling catheter was used to control P's incontinence. During the first week P was very lethargic, sleeping at long intervals. During the period of December 4, 1970 through December 7, 1970, she was awake for longer periods and was more talkative. From December 8-11, she was walking some with help but was very confused. From December 12-15, although still confused, P had made improvement in both eating and ambulation. By December 16, she was speaking clearly, seemed much more alert and oriented, and was up in a chair.
Hospital insurance benefits were paid on P's behalf for the period November 26 through December 16, 1970. Further payment was denied on the basis that the type of care she received thereafter was primarily in the area of supportive noncovered care, such as assistance in bathing, dressing, and personal hygiene. P appealed this determination, seeking payment for the remainder of her hospitalization from December 17, 1970 through January 20, 1971.
The specific issue herein is whether it was medically necessary for P to receive inpatient hospital and related services during all or part of the period in question, given the fact that no skilled nursing facility beds were available, on the grounds that P was in need of at least skilled nursing care.
Section 1814 of the Social Security Act, in pertinent pat, provides:
(a) Except as provided in subsections (d) and (g) and in sections 1876, payment for services furnished an individual may be made only to providers of services which are eligible therefore under section 1866 and only if—[*]
* * * * * * *
(3) with respect to inpatient hospital services (other than inpatient psychiatric hospital services and inpatient tuberculosis hospital services) which are furnished over a period of time, a physician certifies that such services are required to be given on an inpatient basis for such individual's medical treatment, or that inpatient diagnostic study is medically required and such services are necessary for such purpose, . . .
Section 1862 of the Act provides, in pertinent part:
(a) Notwithstanding any other provision of this title, no payment made be made under part A or part B for any expenses incurred for items or services—
(1) which are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member;—
* * * * * * *
(9) where such expenses are for custodial care . . .
The evidence shows that P required skilled medical attention in a hospital after admission since close observation of her multifarious conditions was necessary and the dosage of several medications had to be closely monitored. Therefore, it was not unreasonable for payment to have been made for the period November 26 through December 16, 1970.
However, on December 16, 1970, P was up in a chair and was able to be up regularly until her discharge. Her appetite, which previously had been poor, was noticeably better. She spoke more clearly and frequently and seemed more conscious of her surroundings. It was at this point when her condition seemed to have stabilized and she was no longer in any immediate danger. She no longer required the constant availability of physicians and complex medical equipment generally found only in a hospital.
The evidence further indicates that on December 13, 1970, and on January 12, 1971, the attending physician recertified as to the need for the claimant's continued hospitalization because she was awaiting a bed in a skilled nursing facility.
Section 405.1627(a) of Social Security Administration Regulations NO. 5, provides in pertinent part:
(2) A physician may certify or recertify to the need for continued hospitalization if he finds that the patient could receive proper treatment in a skilled nursing facility but no bed is available in a participating skilled nursing facility. Where this is the basis for the physician's certification or recertification, the required statement should so indicate; also, the physician should attempt on a continuing basis to place his patient in a participating skilled nursing facility as soon as a bed becomes available.
Payment for continued hospitalization may be made when the attending physician certifies in accordance with the above and the evidence shows that the patient no longer requires a hospital level of care, but does require a covered level of post-hospital extended care services and no bed is available in a participating skilled nursing facility.
Section 405.126 of Regulations No. 5 defines "post-hospital extended care" as:
. . . that level of care provided after a period of intensive hospital care in a patient who continues to require skilled nursing services. . . on a continuing basis . . . but who no longer requires the constant availability of medical services provided by a hospital.
Section 405.127 of the Regulations No. 5 defines a "skilled nursing service" as:
(a) . . . one which must be furnished or under direct supervision of licensed nursing personnel and under the general direction of a physician in order to assure the safety of the patient and achieve the medically desired result . . .
* * * * * * *
(c) Evaluation of Services as Skilled or Unskilled. In evaluating whether services not enumerated in paragraph (b) of this section are skilled or unskilled nursing services, the following principles shall be applied:
(1) The classification of a particular services as either skilled or unskilled is based on the technical or professional training required to effectively perform or supervise the services. For example, a patient following instructions, can normally take a vitamin pill. Consequently, the act of giving the vitamin pill to the patient because he is too senile to take it himself would not be a skilled service. Similarly, State law may require that all institutional patients receive medication only from a licensed nurse. This fact would not make administration of a medication a skilled nursing service if such medication can be prescribed for administration at home without the presence of a skilled nurse.
(2) The importance of a particular service to an individual patient does not necessarily make it a skilled service. For example, a primary need of a nonambulatory patient may be frequent changes of position in order to avoid decubiti. Since changing of position can ordinarily be accomplished by unlicensed personnel, it would not be a skilled service.
* * * * * * *
(d) Specific Services; Supportive or Unskilled Services. Supportive services which can be learned and performed by the average non-medical person . . . include but are not limited to:
(1) Administration of routine oral medications, eye drops, and ointments;
* * * * * * *
(3) Routine services in connection with indwelling bladder catheters;
* * * * * * *
(12) Assistance in dressing, eating, and going to the toilet.
Section 405.310 of Regulations No. 5 as amended, provides in part. . .
—Notwithstanding any other provisions of this Part 405, no payment may be made for any expenses incurred for the following items or services.
* * * * * * *
(g) Custodial care (in the case of extended care services, any care which does not meet the definition of extended care in §§405.126—405.128);
During the period December 17, 1970, to January 20, 1971. P received catheter care, attention to her diet, aid in eating, and aid in personal hygiene. She also required assistance in taking oral medications for a variety of conditions which were either stable on admission or had since stabilized. The mental confusion which persisted did not appear to cause any complicating problems.
Thus, the evidence shows that the claimant required and received services which were primarily custodial in nature during the contested period. Custodial care does not come within the purview of 20 CFR 405.1627(a)(2), which is applicable only if the claimant requires a covered level of post-hospital extended care services and no bed is available in a participating skilled nursing facility. Accordingly, it is held that payment may not be made on P's behalf to the hospital for the services provided her for the period December 17, 1970 to January 20, 1971.
[*] References to "(g)" and to "section 1876" were added by the 1972 amendments (P.L. 92-603).
 Section 278 of Public law 92-603 (the Social Security Amendments of 1972) changed the term "extended care facility" to "skilled nursing facility."