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Hultzman v. Weinberger

decided: April 18, 1974.



Hunter and Weis, Circuit Judges, and Miller, District Judge.

Author: Hunter

HUNTER, Circuit Judge:

This appeal involves the denial of Medicare coverage by the Secretary of Health, Education and Welfare ("HEW") for inpatient hospital services which the Secretary believed could have been rendered in a lesser care facility. Jurisdiction resides in this Court by virtue of 42 U.S.C. § 1395ff(c), 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.

From July 13 through September 3, 1970, appellant, Mrs. Dora Hultzman, was hospitalized at the Albert Einstein Medical Center, Philadelphia, Pennsylvania, on the order of her family physician, Dr. Kravitz. Mrs. Hultzman, who was 73 years old at the time she was admitted to the hospital, had suffered from severe rheumatoid arthritis for many years. She had previously received therapy for her arthritis by Dr. Kravitz at the Moss Rehabilitation Center, a rehabilitation hospital. Mrs. Hultzman had felt increasing pain in the months preceding her hospitalization, and she had great difficulty in moving about, even with the aid of two canes. Dr. Kravitz noted in the discharge summary that she was completely helpless at the time of admission.

Although the primary purpose for the hospital admission was to receive physical and occupational therapy, Dr. Kravitz was equally concerned with several other ailments of Mrs. Hultzman: persistent iron-loss anemia, urinary tract infection, eye problems and previous gastrointestinal bleeding. Dr. Kravitz ordered hospitalization because Mrs. Hultzman "could not have gotten her treatment as an outpatient because she was non-ambulatory and she could not be transferred to a less acute facility such as Moss Rehabilitation Hospital because of the urinary problem and the anemia." Dr. Kravitz, who had previously treated Mrs. Hultzman at the Moss Rehabilitation Center, this time chose to treat her at the Albert Einstein Medical Center so that her many other ailments could be taken care of at the same time that she was receiving physical therapy.

Throughout Mrs. Hultzman's hospitalization, both Dr. Kravitz, her family and attending physician, and the utilization review committee of the hospital*fn1 certified that care in the hospital was medically necessary and that it was medically necessary for Mrs. Hultzman to remain in the hospital for as long as she did.

The patient progress notes show the following entry by Dr. Kravitz on September 1: "Pain unabated -- patient seems to be trying very hard but we have reached an impasse." On September 3, Mrs. Hultzman was discharged from the hospital.

Subsequently, the hospital submitted a request for payment for services rendered to Mrs. Hultzman to appellee's fiscal intermediary, Blue Cross of Greater Philadelphia, which initially handles such a claim. Acting on behalf of the intermediary, Dr. H. Hopkins examined the medical records and concluded that there had been an "overutilization," i.e., that only during the first seven days of Mrs. Hultzman's hospitalization did she require inpatient hospital services and the remainder, which he concluded was mostly for physical therapy, could have been rendered in some lesser facility.

Concurring with Dr. Hopkins, the Hearing Examiner held that the hospital services provided to Mrs. Hultzman from July 13 to September 3, 1970, "were not reasonable and necessary inpatient hospital services and are specifically excluded from coverage [by 42 U.S.C. § 3195y [1395y] (a) (1)."] The Hearing Examiner's decision subsequently became the final decision of the Secretary. On July 19, 1973, the district court upheld the Secretary, finding the decision to be supported by substantial evidence. This appeal followed. We reverse.

In drafting the Medicare legislation, Congress provided for benefits for "inpatient hospital services." 42 U.S.C. § 1395d(a) (1). This section contains only one condition: benefits are not payable beyond a maximum number of days in the hospital.*fn2 This limitation on the reimbursable length of stay is reinforced by a requirement that a "spell of illness" would continue until sixty days after discharge, thereby precluding coverage of a rehospitalization during that period. 42 U.S.C. § 1395x(a) (2).

The Medicare statute defines "inpatient hospital services" as follows:

"(b) The term 'inpatient hospital services' means the following items and services furnished to an inpatient of a hospital and (except as ...

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