Estate of Jayne Bonham v. Burwell

Filing 31

ORDER signed by Magistrate Judge Deborah Barnes on 3/10/17 ORDERING that Plaintiff's 24 motion for summary judgment is DENIED. The final decision of the Secretary is AFFIRMED. The Clerk is directed to enter judgment for the defendant. CASE CLOSED (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Estate of JAYNE BONHAM,

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Plaintiff,

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No. 2:14-cv-2465 DB

v.

ORDER

SYLVIA MATHEWS BURWELL,
SECRETARY OF HEALTH AND
HUMAN SERVICES OF THE UNITED
STATES OF AMERICA,

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Defendant.

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This action is before the court seeking judicial review of the decision of the Medicare

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Appeals Council and was submitted without oral argument for ruling on plaintiff’s motion for

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summary judgment.1 For the reasons explained below, plaintiff’s motion is denied, the final

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decision of the Secretary is affirmed, and judgment is entered for the defendant.
BACKGROUND

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On June 5, 2011, beneficiary Jayne Bonham was admitted to ManorCare Health Services,

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(“ManorCare”), a skilled nursing facility, (“SNF”), to receive intravenous antibiotics and

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rehabilitation following left foot surgery. (Administrative Record (“AR”) at 126, 241-42.) On

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Both parties have previously consented to Magistrate Judge jurisdiction in this action pursuant
to 28 U.S.C. § 636(c). (See ECF Nos. 17 & 19.)
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July 19, 2011, Becky Hobbs, a ManorCare “RN Case Manager” reviewed Bonham’s records,

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noted that “IV antibiotics were completed” on July 15, 2011, that Bonham was “now refusing

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therapy,” and recommended that further SNF coverage be denied. (Id. at 229.) On July 20, 2011,

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Dr. Steve Smith agreed with Hobbs’ assessment. (Id. at 239.)

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That same day, Bonham’s Medicare Advantage Organization, (“MAO”), United

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Healthcare, notified her that SNF coverage would end effective July 22, 2011. (Id. at 137-39.)

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On July 22, 2011, Health Services Advisory Group, (“HSAG”), a Medicare Quality Improvement

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Organization, (“QIO”), reviewed the July 20, 2011 decision and “agree[d] with the

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discontinuation of coverage for the skilled services.” (Id. at 55.) Bonham requested

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reconsideration, and on July 25, 2011, HSAG notified Bonham that the “initial decision to end

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coverage was upheld by a second HSAG physician.” (Id. at 58) (emphasis in original).

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On August 18, 2011, Bonham filed an appeal of the July 25, 2011 denial of

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reconsideration with the Office of Medicare Hearings and Appeals (“OMHA”). (Id. at 106-08.)

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Bonham was discharged from ManorCare on October 3, 2011. (Id. at 18.) A hearing was held

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before an Administrative Law Judge, (“ALJ”), on October 7, 2011. (Id. at 468-523.) Plaintiff

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was represented by an attorney and testified at the administrative hearing. (Id. at 475, 500.)

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Bonham passed away on February 22, 2012. (ECF No. 30 at 5.) On March 21, 2012, the ALJ

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issued a fully favorable decision, finding that the “MAO’s decision to terminate coverage of SNF

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services was not medically appropriate.” (AR at 29.)
On May 18, 2012, the Medicare Appeals Council, (“MAC”), received a request for review

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by the MAO. (Id. at 14.) On May 23, 2014, the MAC issued a notice of decision, reversing the

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ALJ’s decision, and finding that “the enrollee’s services were appropriately terminated on July

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22, 2011.” (Id. at 7.) Plaintiff, the estate of Jayne Bonham, sought judicial review pursuant to 42

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U.S.C. § 405(g) by filing the complaint in this action on October 20, 2014. (ECF No. 1.)

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LEGAL STANDARD

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The Medicare Act allows district courts to review the Secretary’s final decision with

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regard to Medicare coverage to ensure the decision is supported by substantial evidence.2 42

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The MAC’s ruling is the final decision of the Secretary. Conahan v. Sebelius, 659 F.3d 1246,
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U.S.C § 405(g) (incorporated through 42 U.S.C § 1395w-22(g)(5)). Substantial evidence is such

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relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

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Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v. Chater, 108 F.3d 978,

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980 (9th Cir. 1997). Moreover, “[t]he agency’s interpretation of its own regulations receives

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‘substantial deference’ and ‘must be given controlling weight unless it is plainly erroneous or

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inconsistent with the regulation.’” Conahan v. Sebelius, 659 F.3d 1246, 1249 (9th Cir. 2011)

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(quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)); see also International

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Rehabilitative Sciences Inc. v. Sebelius, 688 F.3d 994, 1000 (9th Cir. 2012) (“The Secretary’s

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denial of coverage will be affirmed unless it is arbitrary, capricious, an abuse of discretion, or

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otherwise not in accordance with law.”).

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APPLICATION

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The MAC found that “termination of services furnished to the enrollee as of July 22,

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2011, was appropriate.” (AR at 5.) Plaintiff argues that the MAC’s decision “is contrary to the

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decision of the Administrative Law Judge and is not supported by facts, evidence or law.” (Pl.’s

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MSJ (ECF No. 24) at 3.) In this regard, plaintiff argues that the MAC’s decision failed to

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consider the July 21, 2011 opinion of Bonham’s treating physician, Dr. Reinhardt Hilzinger. (Id.

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at 4.) The ALJ’s decision relied on Dr. Hilzinger’s opinion, stating that “[t]he Beneficiary’s

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physician noted that she was benefiting from therapy and required continued therapy.” (AR at

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29-30.)
However, the MAC found that Bonham’s “condition had plateaued, and even regressed by

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July 22, 2011.” (Id. at 5.) The finding of the MAC is supported by substantial evidence. In this

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regard, the July 21, 2011 “Detailed Explanation of Non-coverage” explained that prior to her

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admission, Bonham “was noted to be Independent with dressing and requiring Moderate Assist

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(Mod A) with bathing.” (Id. at 140.) On June 6, 2011, a “Physical Therapy (PT) Evaluation”

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stated:

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1249 (9th Cir. 2011) (citing Heckler v. Ringer, 466 U.S. 602, 607 (1984)).
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Documentation showed her to require Mod A with Bed mobility
and transfers due to being Non-weight bearing (NWB) on the left
foot. Sitting balance was Fair+/F, standing balance was Not tested
due to NWB on left foot. Gait was not tested either. Wheel Chair
(WC) mobility was 70’ with Mod A.
(Id.) An Occupational Therapy evaluation performed that same day found Bonham to be “Mod A
for Upper Body (UB) dressing and Maximum Assist (Max) for Lower Body dressing.” (Id.)
Bonham was then reviewed regularly thereafter. A July 12, 2011, review

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. . . reflected a regression with bed mobility now requiring
mod/max A. Transfers from chair to bed were fluctuating from
Max to mod/max. Gait was declined secondary to increased
fatigue. There was no change with OT functions. She remained
Non-Weight Bearing.
(Id. at 141; see also at 226.)
A July 19, 2011 review found:

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Her Level of Assist with bed mobility had not changed, she refused
chair to bed transfers, sitting balance remained Fair/Fair. She
remained unable to ambulate secondary to increased fatigue. There
was no change with ADL transfers.
(Id. at 142; see also at 228.) “Notes through 7/20 were requested as [Bonham] had not made
improvements with therapy . . . and had also been refusing therapy.” (Id. at 142.) “The
documentations confirmed no progress had been made.” (Id.)
Neither plaintiff’s argument nor Dr. Hilzinger’s opinion refutes the evidence noted above.
To the contrary, while Dr. Hilzinger’s opinion states that Bonham had “gained some strength” it
also reflects that Bonham suffered from “[m]uscle wasting in upper and lower extremities with
chronic weakness.” (Id. at 116.)
Moreover, Dr. Hilzinger’s opinion erroneously states that Bonham was “progressing with
her physical therapy despite having some setbacks a couple of weeks ago.” (Id. at 117.) As the
MAC’s decision noted, “[o]n multiple instances [Bonham] was unable to participate in PT and/or
OT.” (Id. at 6.) In this regard, it appears from the record that Bonham refused, declined, or did
not perform some or all portions of her physical therapy and/or occupational therapy on June 7, 8,
9, 10, 14, 17, 23, 24, 25, 27 and 28, 2011, and on July 4, 6, 9, 15 and 16, 2011. (Id. at 165-68,

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170-72, 175, 178.)

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Medicare regulations explain that “skilled nursing and skilled rehabilitation services

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means services that . . . [a]re furnished directly by, or under the supervision of” technical or

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professional personnel. 42 C.F.R. § 409.31 (a). “The beneficiary must require skilled nursing or

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skilled rehabilitation services, or both, on a daily basis.” 42 C.F.R. § 409.31(b)(1). “To meet the

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daily basis requirement specified in § 409.31(b)(1) . . . . [s]killed nursing services or skilled

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rehabilitation services must be needed and provided 7 days a week.” 42 C.F.R. § 409.34(a)(1).

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Finally, Medicare coverage, in general, does not extend to custodial
care. 42 U.S.C. § 1395y(a)(9) (“Notwithstanding any other
provision of this subchapter, no payment may be made under part A
or part B of this subchapter for any expenses incurred for items or
services . . . where such expenses are for custodial care.”).
Custodial care is defined in the regulations as “any care that does
not meet the requirements for coverage as SNF care as set forth in
§§ 409.31 through 409.35 of this chapter.” 42 C.F.R. § 411.15(g).

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United HealthCare, 774 F.Supp.2d at 1020. In this regard, the MAC stated that “any failure to

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participate [in therapy] of any frequency or significance, whether based on mere refusal or on a

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legitimate medical basis, will require discharge from SNF care.” (AR at 6.)

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Here, Bonham was authorized for SNF services to receive intravenous antibiotics and

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rehabilitation following left foot surgery. (Id. at 126, 241-42.) By July 22, 2011, Bonham had

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received her intravenous antibiotics. Moreover, by July 22, 2011, Bonham had not been

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receiving rehabilitation, in the form of physical and occupation therapy, on a daily basis.

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For the reasons stated above, the court finds that the MAC’s decision was supported by

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substantial evidence and that the agency’s interpretation of its own regulations was not plainly

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erroneous or inconsistent.

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CONCLUSION

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Having found no error, the court finds that plaintiff is not entitled to relief with respect to
its claim.

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Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s motion for summary judgment (ECF No. 24) is denied;

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2. The final decision of the Secretary is affirmed; and

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3. The Clerk of the Court is directed to enter judgment for the defendant.

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Dated: March 10, 2017

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DLB:6
DB\orders\orders.consent\bonham2465.ord

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