1395x

Provider of services (as defined in section 1861(u) of the [Social Security] Act, 42 U.S.C. 1395x(u)), a provider of medical or health services (as defined in section 1861(s) of the Act, 42 U.S.C. 1395x(s)), and any other person or organization who furnishes, bills, or is paid for health care in the normal course of business.3

1395x

"a provider of services (as defined in section 1861(u) of the Act, 42 U.S.C. 1395x(u)), a provider of medical or health services (as defined in section 1861(s) of the Act, 42 U.S.C. 1395x(s)), and any other person or organization who furnishes, bills, or is paid for health care in the normal course of business."

A provider of services (as defined in section 1861(u) of the Social Security Act, 42 U.S.C. 1395x(u)), a provider of medical or health services (as defined in section 1861(s) of the Social Security Act, 42 U.S.C. 1395x(s)), and any other person or organization who furnishes, bills, or is paid for healthcare in the normal course of business. Source(s): NIST SP 800-66 Rev. 1 from 45 C.F.R., Sec. 160.103

(A) Notwithstanding section 3901.71 of the Revised Code, no group or individual policy of sickness and accident insurance that provides coverage for prescription drugs shall limit or exclude coverage for any drug approved by the United States food and drug administration on the basis that the drug has not been approved by the United States food and drug administration for the treatment of the particular indication for which the drug has been prescribed, provided the drug has been recognized as safe and effective for treatment of that indication in one or more of the standard medical reference compendia adopted by the United States department of health and human services under 42 U.S.C. 1395x(t)(2), as amended, or in medical literature that meets the criteria specified in division (B) of this section.

(3) Each article meets the uniform requirements for manuscripts submitted to biomedical journals established by the international committee of medical journal editors or is published in a journal specified by the United States department of health and human services pursuant to section 1861(t)(2)(B) of the "Social Security Act," 107 Stat. 591 (1993), 42 U.S.C. 1395x(t)(2)(B), as amended, as acceptable peer-reviewed medical literature.

Plaintiff was denied Medicare coverage for her second stay at Mt. Sinai on the ground that on February 6, 1980, she was not eligible for a new "spell of illness", as defined in 42 U.S.C. 1395x(a) and discussed more fully below. Upon plaintiff's timely request for a hearing, Administrative Law Judge Gerald Sheindlin (the "ALJ") found on May 28, 1981, that plaintiff was eligible for a new spell of illness and awarded her appropriate relief. On February 22, 1982, the Appeals Council, upon its own motion, issued an order reopening and revising the determination of the ALJ. The Appeals Council held that plaintiff's hospitalization on February 6 did not commence a new spell of illness and, as a result, her subsequent stay at Mt. Sinai was not covered by Medicare. It is from this order of the Appeals Council, constituting the final decision of the Secretary, that plaintiff appeals.

Because the ALJ found, and the parties do not contest, that the Jewish Home is a "skilled nursing facility" as defined by the statute; that plaintiff was admitted to the Jewish Home on a custodial basis only; and that plaintiff did not require or receive skilled nursing service during her stay there, the issue posed is whether plaintiff's custodial residence at the Jewish Home permits her to be characterized during that period as "neither an inpatient of a hospital nor an inpatient of a skilled nursing facility", 42 U.S.C. 1395x(a) (2) (emphasis supplied). If plaintiff cannot be so characterized, as defendant maintains, then the spell of illness that began with her November 18, 1978, hospitalization continued throughout her subsequent residence at the Jewish Home and consequently prevented the commencement on February 6, 1980, of a new spell of illness. Plaintiff, on the other hand, maintains that her residence at the Jewish Home was not in the nature of an "inpatient of a skilled nursing facility" and thus made her eligible for a new spell of illness by February 6, 1980.

Defendant argues that section 1395x(a) manifests the intent on the part of its drafters to establish two differing tests to be used in computing the length of a spell of illness: Paragraph (1) of that subsection, concerning the determination of the beginning of a spell of illness, employs terminology relating to the nature of services received by the individual, i.e., "inpatient hospital services" and "extended care services", defined at 42 U.S.C. 1395x(b), (i), respectively; paragraph (2) of section 1395x(a), relating to determining when a spell of illness is deemed to have ended, refers to the nature of institution in which the individual is found, i.e., "hospital" and "skilled nursing facility", defined at 42 U.S.C. 1395x(e), (j), respectively. Thus, argues defendant, any consideration with regard to section 1395x(a) (2) of the nature of services rendered plaintiff while at the Jewish Home is improper. Under the defendant's view, plaintiff was, from March 27, 1979, to February 6, 1980, an "inpatient of a skilled nursing facility" solely by virtue of the fact that she resided at the Jewish Home, a skilled nursing facility.

The Court, however, is of the opinion that the drafters of section 1395x(a) (2) intended more than mere physical presence by their use of the term "inpatient". While we concur with defendant's statement that "inpatient" is not a defined term in the statute, we do not feel compelled, as apparently does defendant, to find the word relieved of its plain meaning, viz., a patient who "received lodging and food as well as treatment", the term "patient" meaning a "sick individual especially one awaiting or under the care and treatment of a physician or surgeon." Webster's Third World New International Dictionary, quoted in Eisman v. Mathews, 428 F. Supp. 877, 879 (D.Md. 1977). Accordingly, the phrase "inpatient in a skilled nursing facility" must be understood to refer to an individual who both resides in a skilled nursing facility and receives the "skilled nursing care", the provision of which characterizes an institution as a skilled nursing facility pursuant to 42 U.S.C. 1395x(j) (1). Where, as here, the latter factor is concededly absent, an individual cannot properly be said to be an inpatient of a skilled nursing facility.

To adopt defendant's interpretation of section 1395x(a) (2) would result in denying benefits to an individual who, because of the unavailability of other accommodations, must upon successful completion of hospital treatment move directly into a nursing home, while granting benefits to an individual fortunate enough to be able to return from the hospital to his family. In light of this Circuit's well-established principle that the Social Security Act is a remedial statute, to be broadly construed and liberally applied, Rosenberg v. Richardson, 538 F.2d 487, 490 (2d Cir. 1976); Herbst v. Finch, 473 F.2d 771, 775 (2d Cir. 1972); Haberman v. Finch, 418 F.2d 664, 666 (2d Cir. 1979), we cannot put aside our plain reading of section 1395x(a) (2) in favor of one that would effect such an inequitable and unjustifiable anomaly. We note, too, that in so holding we join the majority of courts that have considered this issue. See Picard v. Secretary of Health & Human Services, Medicare & Medicaid Guide (CCH) 30,722 (S.D.N.Y.1980) (Werker, J.); Eisman v. Mathews, supra; Gerstman v. Secretary of Health, Education & Welfare, 432 F. Supp. 636 (S.D.N.Y.1977); Hasek v. Mathews, Medicare & Medicaid Guide (CCH) 28,345 (N.D.Cal.1977); Fineberg v. Secretary of Health, Education & Welfare, 363 F. Supp. 1382 (W.D.N.Y.1973); but see Stoner v. Califano, 458 F. Supp. 781 (E.D. Mich.1978), and Brown v. Richardson, 367 F. Supp. 377 (W.D.Pa.1973) (remanding on alternative grounds).[1]

[1] The Court finds unpersuasive defendant's argument that Congress, by failing to act, has acquiesced in the Secretary's interpretation of section 1395x(a) (2), as articulated in Social Security Ruling 69-42, Cum.Bull.1969, at 146. No evidence suggesting that Congress has been made aware of the Secretary's position, cf. Zenith Radio Corp. v. United States, 437 U.S. 443, 98 S. Ct. 2441, 57 L. Ed. 2d 337 (1978), or preferred it to the numerous judicial rulings to the contrary, has been brought to the Court's attention. 041b061a72