Anderson v. Health and Human Services Secretary

Filing 51

OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART 48 REPORT AND RECOMMENDATION. Motion to Reverse the Decisions of HHS 30 is granted, Motion for Order Affirming the Decisions of the Secretary of HHS 34 is denied. The Court hereby ADOPTS the Magistrate Judge's Report and Recommendation with the exception of its recommendations with regard to the stability presumption for observation and assessment services, which the court hereby REJECTS. The court REMANDS this matter to the ALJ for further proceedings. Signed by Judge Christina Reiss on 10/25/2010. (pam)

-jmc Anderson v. Health and Human Services Secretary

Doc. 51

UNITED STATES DISTRICT COURT F O R THE DISTRICT OF VERMONT SANDRA ANDERSON, Plaintiff,
) ) ) ) ) ) ) ) ) ) )

2010 OCT 2S AM II: 04

v.
K A T H L E E N SEBELIUS, Secretary o f Health and Human Services, Defendant.

Case No. 5:09-cv-16

OPINION AND O R D E R ADOPTING IN PART AND REJECTING IN PART MAGISTRATE J U D G E ' S REPORT AND RECOMMENDATION (Docs. 48, 49)

This matter came before the court on the Objection o f P l a i n t i f f Sandra Anderson (Doc. 49) to the Magistrate J u d g e ' s Report and Recommendation ( " R & R"), filed on August 2 7 , 2 0 1 0 (Doc. 48). In the R & R, the Magistrate Judge recommended granting P l a i n t i f f s Motion for an Order Reversing the Secretary's Decision (Doc. 30) and denying the motion by Defendant, Kathleen Sebelius, Secretary o f Health and Human Services (the "Secretary"), to affirm the same (Doc. 34). P l a i n t i f f objects to the R & R insofar as
i t finds that further discovery for her due process claim is not warranted and because i t

concludes that the Administrative Law Judge ("ALJ") did not apply an improper presumption in denying coverage for skilled observation and assessment services. The Secretary opposes P l a i n t i f f s objection to the R & R (Doc. 50), arguing that P l a i n t i f f s objection is moot, that further discovery is not warranted, and that the R & R correctly found that the ALJ did not employ an improper presumption in denying coverage.

Dockets.Justia.com

Plaintiff is represented by Gill Deford, Esq. and Jacob S. Speidel, Esq. The Secretary is represented by Assistant United States Attorney Nikolas P. Kerest.

I.

Standard o f Review.
A district j u d g e m u s t m a k e a de novo determination o f those portions o f a

magistrate j u d g e ' s r e p o r t and recommendation to w h i c h an objection is made. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F . 3 d 4 0 1 , 4 0 5 (2d Cir. 1999). The district j u d g e may "accept, reject, or modify, in w h o l e or in part, the findings or recommendations m a d e by the magistrate j u d g e . " 28 U.S.C. § 636(b)(1); a c c o r d

Cullen, 194 F.3d at 405.
At issue in this case is w h e t h e r the ALJ improperly denied P l a i n t i f f coverage for certain h o m e health services u n d e r the Medicare P a r t A program, based upon the A L J ' s conclusion that the services did n o t meet Medicare coverage criteria. To be covered u n d e r the Medicare statute, the services m u s t be "reasonable and necessary" to be reimbursed. New York ex rei. B o d n a r v. S e c ' y o fHealth & Human Servs., 903 F . 2 d 122, 125 (2d Cir. 1990) (citing 42 U.S.C. § 1395ff(a) (Supp. V 1987); Heckler v. Ringer, 466 U.S. 602, 617 (1984)); see also New York ex re!. H o l l a n d v. Sullivan, 927 F . 2 d 5 7 , 5 8 - 5 9 (2d Cir. 1991) (noting that " [ t ] h e Secretary may n o t provide reimbursement for services t h a t are ' n o t reasonable and n e c e s s a r y ' for diagnosis or treatment o f illness or injury.") (quoting 42 U.S.C. § 1395y(a)(I)(A)). Pursuant to Johnson v. Bowen, 817 F .2d 983, 985 (2d Cir. 1987), the determination o f w h e t h e r services are reasonable and necessary u n d e r the Medicare Act m u s t be b a s e d on substantial e v i d e n c e ' and m u s t be in accordance w i t h correct legal standards. See 42 U.S.C. § 405(g). The reviewing court m u s t defer to the S e c r e t a r y ' s supported fmdings o f fact; it is not, h o w e v e r " b o u n d by the S e c r e t a r y ' s conclusions or interpretations o f law, or an application o f an incorrect legal standard." Exec. Dir. o f

evidence is] more than a mere scintilla. I t means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Zabala v. Astrue, 595 F.3d 4 0 2 , 4 0 8 (2d Cir. 2010) (quoting Richardson v. Perales, 402 U.S. 3 8 9 , 4 0 1 ( 1 9 7 1 » .
1 "[Substantial

2

Office o f Vt. Health Access ex rei. Carey v. Sebelius, 698 F. Supp. 2d 436, 439 (D. Vt. 2010) (citation and internal quotation marks omitted).

II.

Factual Background.
The parties do not dispute the Magistrate J u d g e ' s recitation o f the operative facts.

The court thus adopts them verbatim. Sandra Anderson began receiving home health services from the Visiting Nurse Association o f Chittenden and Grand Isle Counties ("VNA") on June 7, 2004. She was 60 years old at the time, and had j u s t returned home after being hospitalized for her second stroke. She suffered from urinary incontinence, "acute, but ill-defined" cerebrovascular disease, hypertension, cognitive impairments including memory deficit, limited physical mobility, slurred speech, and newly diagnosed type II diabetes. (AR 175-76, 256.) Because o f her cognitive impairments and immobility, Anderson required 24-hour supervision to remain safe in her home environment. ( A R 172.) Ms. A n d e r s o n ' s treating physician, Dr. Stephen Mann, certified a variety o f skilled nursing services for Anderson that included skilled diabetic foot care, patient education on diabetes management and a diabetic diet, overall management and evaluation o f her care plan, and observation and assessment o f her condition. In addition, Anderson received physical and occupational therapy, medical social services provided by a social worker, and non-skilled personal care. (See, e.g., AR 170-73.) Dr. Mann certified (and re-certified) this care for six 60-day certification periods from June 7 , 2 0 0 4 to June 2 , 2 0 0 5 . ( A R 1 7 0 , 6 0 5 , 9 1 5 , 1238, 1386.) While care was certified into June 2005, Anderson's occupational therapy concluded on September 12, 2004 (AR 216), and she was discharged from physical therapy on December 2 , 2 0 0 4 ( A R 643-44). Associated Hospital Service, the fiscal intermediary tasked with making the initial coverage determination in this case.' covered the services provided to Anderson during the first certification period o f June 7 to August 6, 2004, but denied coverage for the remaining five periods. (AR 343, 728, 862, 1183.) The intermediary upheld the denials on reconsideration, and Maximus Federal Services, a Medicare "Qualified
The Center for Medicaid and Medicare Services ("CMS"), which is the federal agency within HHS that administers the Medicare program, contracts out its claim processing to private companies referred to as "fiscal intermediaries." Fiscal intermediaries are required to reimburse providers only for those items and services covered by Medicare. See generally Yale-New Haven Hasp. v. Leavitt, 470 F.3d 71, 73 (2d Cir. 2006).
2

3

Independent Contractor" ("QIC"), affirmed on October 30, 2007. (AR 123, 5 6 2 , 8 6 1 , 1182.) Anderson then sought review by an Administrative Law Judge ("ALJ"), and a hearing was held on February 1 2 , 2 0 0 8 with Anderson's counsel appearing via video teleconference. (AR 1385-99.) In separate decisions dated February 1 9 , 2 0 0 8 , the ALJ affirmed the denial o f coverage for all 'five o f the challenged certification periods, finding that "[t]he home health services provided to Sandra Anderson . . . did not meet Medicare coverage criteria." (AR 54, 497, 787, 1110.) However, the ALJ also waived Anderson's liability because the VNA did not sufficiently notify Anderson that Medicare would not cover her services. Id.; see 42 U.S.C. § 1395pp(b). This disposition left the VNA solely responsible for the uncovered service charges. Anderson then appealed the denial o f coverage for the second, third, fourth, and fifth periods (August 7 , 2 0 0 4 to April 3, 2005) to the Medicare Appeals Council ("MAC"), and the MAC, in what constitutes the Secretary's final decision, affirmed the A L l ' s decisions on November 2 0 , 2 0 0 8 . (AR 5.) Having exhausted all o f her administrative remedies, Anderson commenced this suit against the Secretary on January 2 2 , 2 0 0 9 . (Doc. 3, CompI.) (Doc. 48 at 1-4, footnote omitted.) In her Complaint, Plaintiff claims that the Secretary violated the Medicare statute, regulations, and policy manual by applying an "informal" and "unlawful" presumption (Doc. 30-1 at 1, 5 ) - h e r e a f t e r , the "stability p r e s u m p t i o n " - w h e r e b y coverage is automatically denied for patients whose conditions are stable during the covered period. Plaintiff claims that this stability presumption violated her Fifth Amendment due process rights. Plaintiff further alleges that the Secretary's factual findings in denying her coverage were not supported by substantial evidence. In the R & R, the Magistrate Judge found that the ALJ did not apply a stability presumption in denying P l a i n t i f f s Medicare coverage. He also rejected P l a i n t i f f s associated argument that her due process rights were violated by the Secretary's alleged practice o f automatically applying a stability presumption. He nonetheless found that reversal and remand were appropriate because the ALJ had committed other legal errors and had made factual findings in denying coverage that were not supported by substantial
4

evidence. Finally, the Magistrate Judge found that Plaintiff was not entitled to declarative, injunctive, or mandamus relief.

III. Subject Matter Jurisdiction.
The Magistrate Judge, sua sponte, invited the parties to b r i e f the issue o f standing and found that, although P l a i n t i f f "was not left financially liable for the VNA services, she retains standing to sue in federal court." (Doc 48 at 3 n.2.) The Secretary asserts that this court no longer retains subject matter jurisdiction because the case is now moot.
3

The Secretary contends that P l a i n t i f f has already received the r e l i e f she seeks, has no fmancialliability for denied services, and thus no longer has a personal stake in the litigation. A n action is moot " w h e n the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481 (1982) (internal quotation marks and citations omitted). Generally, in a Medicare or Social Security case, mootness is measured by whether a claimant receives the benefits he or she is seeking. See Headen v. Sullivan, 1992 WL 471168, at *2 (S.D.N.Y. Sept. 8, 1992) (opining that, in a Social Security action seeking payment o f benefits, "the actual payment o f those benefits generally moots the action.") (citations omitted). Here, a fmal coverage determination as to P l a i n t i f f s benefits has not yet been made. Accordingly, the case is not moot under Headen.
I n addition, although the ALJ waived P l a i n t i f f s financial responsibility for the

services in question, a beneficiary retains his or her "injured" status when the Secretary refuses to pay providers for Medicare benefits the beneficiary has received. See Longobardi v. Bowen, 1988 WL 235576, at *2 (D. Conn. Oct. 25, 1988) (observing that even though p l a i n t i f f would not be the recipient o f any benefit payments, Medicare statute created entitlement, and plaintiff had standing because " i t is in the distribution o f a

The only case cited by the Secretary, Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981), is inapposite. In Ellis, the government argued the case was moot because the p l a i n t i f f had been notified that she would not lose her disability benefits. The court held that the still-outstanding emotional suffering damages that p l a i n t i f f claimed saved the case from mootness. I d at 83. Similarly, in this case, the still-outstanding coverage issues save the case from mootness.
3

5

benefit p a y m e n t w h i c h comprises a portion o f her Medicare entitlement" that gives p l a i n t i f f a stake in the coverage determination). The case is not moot for the further reason that, i f the A L I ' s denial o f coverage is ultimately affirmed, P l a i n t i f f will retain an injury-in-fact because she will be presumed to have knowledge t h a t the denied services will not be covered in the future and will thus be legally bound to her detriment by the outcome o f this case. See 42 U.S.C. § 1395pp(b) (providing that, " i n the case o f comparable situations arising thereafter with respect to such individual, [she] shall, by reason o f such notice . . . be deemed to have knowledge that p a y m e n t cannot be m a d e for such items or services."). This constitutes an injury-infact for standing purposes. See Dennis v. Shalala, 1994 WL 708166, at *1 n.1 (D. Vt. Mar. 4, 1994) ("[T]here is a justiciable case or controversy because, following an unfavorable determination, a Medicare recipient will be presumed for subsequent coverage issues to have knowledge t h a t services will not be covered. 42 U.S.C. § 1395pp(b). "). Finally, the Medicare statute t h a t authorizes judicial review o f an A L I ' s decision provides that, after a final decision has been rendered, "irrespective o f the amount in controversy," an individual may obtain a review o f that decision by filing a civil action. 42 U.S.C. § 405(g). As a result, even i f a beneficiary qualifies for a limitation o f l i a b i l i t y and has no fmancial responsibility for services w h e r e coverage had b e e n denied (as happened in this case), the beneficiary is, nevertheless, the sole p e r s o n who can bring an action unless he or she declines to appeal (in which case the provider can exercise the b e n e f i c i a r y ' s rights). See 42 U.S.C. § 1395pp(d). Here, the beneficiary has chosen to appeal. F o r the foregoing reasons, this case is not m o o t and the court has jurisdiction to consider P l a i n t i f f s objections to the R & R.

IV.

Whether the Evidentiary Record is Incomplete.
P l a i n t i f f contends that "[i]t is not possible to determine whether the legal and

factual errors made by the S e c r e t a r y ' s reviewers w e r e [d]ue [p]rocess violations without the addition o f information not included in the administrative record." (Doc. 49 at 3.) 6

She raises the discovery argument with the caveat that she is doing so "[t]o the extent necessary to preserve her right to further appeal." (Doc. 49 at 2.) P l a i n t i f f s argument reiterates the same argument that she previously made in an Objection to a July 2009 R & R, upon which the court has already ruled, rejecting that claim. "The law o f the case doctrine commands that ' w h e n a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent stages in the same case' unless ' c o g e n t and compelling reasons militate otherwise.'" Johnson v. Holder, 564 F.3d 9 5 , 9 9 (2d Cir. 2009) (quoting United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)). The doctrine "expresses the practice o f courts generally to refuse to reopen what has been decided . . . . " Messenger v. Anderson, 225 U.S. 436, 444 (1912) (citations omitted). Essentially, P l a i n t i f f is asking the court to reconsider its adoption o f the July 2009 R & R. The law o f the case doctrine precludes such an exercise. To the extent Plaintiff merely seeks to preserve her objection to the denial o f further discovery, whether and to what extent she has done so is properly directed to the court that may hear her appeal.

V.

W h e t h e r t h e A L J Applied a S t a b i l i t y P r e s u m p t i o n in Denying C o v e r a g e for C e r t a i n Services.
P l a i n t i f f challenges the A L l ' s denial o f coverage for skilled observation and

assessment services, arguing that the ALJ erred by applying a retrospective "stability presumption" and evaluating P l a i n t i f f s need for skilled services from the benefit o f hindsight rather than from the perspective o f the attending physician at the time the services were ordered. P l a i n t i f f describes the "stability presumption" as "an unlawful presumption that Medicare coverage should be denied for all patients whose condition is chronic or stable . . . . [T]his stability presumption contradicts Medicare regulations requiring individualized assessments and explicitly proscribing the denial o f coverage based solely on a p a t i e n t ' s stability." (Doc. 48 at 9, citations omitted.) The R & R concludes that the ALJ did not impose a "stability presumption" and further finds that hindsight was "different f r o m - a n d not necessarily symptomatic o f the alleged error o f ignoring A n d e r s o n ' s individual needs in favor o f a presumption that
7

stable patients are not covered by Medicare." (Doc. 48 at 15). P l a i n t i f f objects to both conclusions. To receive Medicare benefits for home health care services, a beneficiary must be: (a) confined to the home; (b) under the care o f a physician; (c) in need o f skilled services; and (d) u n d e r a p l a n o f care. 42 C.F .R. § 409 A2( a)-( d). Skilled services " m u s t be consistent with the nature and severity o f the beneficiary's illness or injury, his or h e r particular medical needs, and accepted standards o f medical and nursing practice." 42 C.F.R. § 409.44(b)(3)(i). As the R & R points out, the issue before the A L l was whether P l a i n t i f f was " i n need o f skilled nursing . . . services throughout the relevant time p e r i o d - ,that is, whether she received compensable skilled services and whether such services were ' r e a s o n a b l e and necessary."? (Doc. 48 at 6, quoting 42 U.S.C. § 1395y(a)(1)(A) (providing that the fundamental r e q u i r e m e n t for Part A Medicare coverage is that the provided items and services be "reasonable and necessary for the diagnosis o r treatment o f illness or injury[.]")). Consideration is given to whether there is a "likelihood o f a future complication or acute episode" and whether the b e n e f i c i a r y ' s condition and vital signs are " p a r t o f a longstanding pattern o f the p a t i e n t ' s condition, and there is no attempt to change the treatment to resolve them." Medicare Benefit Policy M a n u a l ("MBPM"), CMS Pub. 100-02, § 40.1.2.1. The touchstone for determining whether skilled services are "reasonable and necessary" is from the forward-looking vantage point o f the physician: The determination o f whether the services are reasonable and necessary should be made in consideration t h a t a physician has determined that the services are reasonable and necessary. The services must, therefore, be viewed from the perspective o f the condition o f the patient w h e n the services were ordered and w h a t was, at that time, reasonably expected to be appropriate treatment for the illness or injury throughout the certification period.

M B P M § 40.1.1. A p a t i e n t ' s chronic or stable condition does not provide a basis for automatically denying coverage for skilled services: 8

The determination o f whether a patient needs skilled nursing care should be based solely upon the p a t i e n t ' s unique condition and individual needs, without regard to w h e t h e r the illness or injury is acute, chronic, terminal, or expected to extend o v e r a long period o f time. In addition, skilled care may, depending on the unique condition o f the patient, continue to be necessary for patients whose condition is stable.

ld.
In finding that a stability presumption did not impact the A L J ' s denial o f coverage, the Magistrate Judge erroneously concluded that skilled services for observation and assessment o f a p l a i n t i f f s condition are covered "only when there is a reasonable potential for a complication or further acute episode, and not w h e n a p a t i e n t ' s condition is stable and unlikely to change." (Doc. 48 at 13-14, citing, inter alia, M B P M § 40.1.2.1.) This improper limitation was based in p a r t upon the Magistrate J u d g e ' s interpretation o f the applicable regulation which provides: Observation and assessment constitute skilled services w h e n the skills o f a technical or professional person are required to identify and evaluate the p a t i e n t ' s need for modification o f treatment or for additional medical procedures until his or her condition is stabilized. 42 C.F.R. § 409.33(a)(2)(i). Pursuant to the regulation, "stabilization" determines the

duration o f skilled services. I t does not, however, negate the possibility that "skilled
care may, depending on the unique condition o f the patient, continue to be necessary for patients w h o s e condition is stable." M B M B § 40.1.1. Accordingly, while the Magistrate Judge is correct in concluding that the ALJ appropriately analyzed the P l a i n t i f f s stability during the covered period, he is incorrect in concluding that skilled services are not covered " w h e n a p a t i e n t ' s condition is stable and unlikely to change." (Doc. 48 at 14 (citations omitted)). The court is also not convinced that the A L l ' s evaluation was free from the taint o f a retrospective stability presumption. Although the ALJ concluded that the "documentation [regarding P l a i n t i f f s condition] does not support the likelihood o f a future complication or acute episode [or] a 'reasonable potential for c o m p l i c a t i o n s ' " (Administrative Record ["AR"] 73), she appears to have at least in part: (1) evaluated

9

Plaintiffs condition from the benefit o f hindsight; and (2) denied coverage because Plaintiff's condition was stable during the covered period: For the dates at issue in this case, the Beneficiary h a d no d o c u m e n t e d c l i n i c a l instability. There are no documented changes in medications, changes in the plan o f care, or changes in the [ P l a i n t i f f s ] baseline medical status that required skilled intervention. . . . The documentation does not support the likelihood o f a future complication or acute episode, a . reasonable potential for complications, or t h a t the [ P l a i n t i f f s ] condition or treatment regimen was unstable and required continued observation and assessment by a skilled nurse. Rather, the record indicates that the [ P l a i n t i f f s ] condition was c h r o n i c a l l y stable; it reflects a longstanding pattern o f her condition . . . . On the basis o f this record, the undersigned ALJ finds the documentation does not support that the Beneficiary either needed or received [skilled nursing] services in accordance with Medicare criteria for coverage during the [home health] episode at issue. (AR 73-74) (emphasis supplied). This court has previously rejected both the use o f hindsight and a stability presumption in denying coverage for services. For example, in Colton v. S e c y o fHealth
& H u m a n Servs., 1991 WL 350050, at *5 (D. Vt. Jan. 30, 1992), the court held that the

" A L J was incorrect in applying a retrospective analysis to the question o f [beneficiary's] stability." The court reaffirmed this holding in F o l l a n d ex rei. Smith v. Sullivan, 1992 WL 295230 (D. Vt. Sept. 1, 1992), wherein it rejected a denial o f services based on a "retrospective review o f [the beneficiary's] vital signs," finding that "[t]he A L I ' s interpretation o f [the beneficiary's] condition is . . . flawed because it impermissibly relies on the benefit o f hindsight, which o f course is always 20-20." Id. at *7. The court further rejected the A L I ' s reliance on a retrospective stability presumption: The determination o f whether the services are reasonable and necessary should be made in consideration that a physician has determined that the services ordered are reasonable and necessary. The services must, therefore, be viewed from the perspective o f the condition o f the patient w h e n the s e r v i c e s w e r e o r d e r e d and what was, at that time, reasonably expected to be appropriate treatment for the illness or injury throughout the certification period.

10

Home H e a l t h A g e n c y Manual § 205. 1(A)(4) (emphasis added). See Colton No. 90-244, slip. op. at 12-13 (accord). The fact t h a t Smith did not experience the complications sought to be avoided by the type o f care described in §§ 409.33(1)-(2) does not m e a n t h a t those services w e r e not reasonably expected to be appropriate treatment throughout the certification period, and thus reasonable and necessary. To hold otherwise w o u l d be illogical. The fact t h a t skilled care has stabilized a c l a i m a n t ' s health does n o t r e n d e r that level o f care unnecessary. A n elderly claimant n e e d n o t risk a deterioration o f h e r fragile health to validate the continuing requirement for skilled care.

Id. at *7.
In Smith ex rei. McDonaidv. Shalala, 855 F. Supp. 658 (D. Vt. 1994), the court again reversed the A L l ' s determination t h a t a beneficiary did not require a skilled level o f care because the b e n e f i c i a r y ' s condition w a s stable. Ruling t h a t the A L l ' s decision was not supported by substantial evidence, the c o u r t further found t h a t the A L l "impermissibly relie[d]" on a "retrospective review" o f p l a i n t i f f s vital signs. Id. at 663.
I t pointed out that, "[t]he fact that [beneficiary] did not experience the complications

s o u g h t to be avoided by the type o f care described in §§ 409.33(a)(1)-(2) does not m e a n t h a t those services were not reasonably expected to be appropriate treatment throughout the certification period, and thus reasonable and necessary." Id. M o r e recently, this court rejected the A L l ' s decision that, because the beneficiary was in a "clinically stable condition" w i t h normal vital signs, a static treatment regimen, and no complications during the service periods in question, the beneficiary did not require skilled nursing services u n d e r 42 C F R § 409.33(a)(2)(i). Carey, 698 F. Supp. 2d at 454. The court n o t e d t h a t the M B P M recognizes that " s k i l l e d care may, depending on the unique condition o f the patient, continue to be necessary for patients whose condition is stable." Id. (quoting M B P M § 40.1.1. at p. 36). Application o f the foregoing principles to the A L l ' s determinations h e r e leads the c o u r t to conclude t h a t it m u s t r e m a n d this case to allow the A L l to reexamine the n e e d for skilled services for observation and assessment from the perspective o f the condition o f P l a i n t i f f at the time t h e services w e r e ordered, free from any presumption that i f

11

hindsight reveals P l a i n t i f f s condition was stable throughout the covered period, coverage for skilled services should be denied. VI. R e m a n d Recommended by the Magistrate Judge. N e i t h e r p a r t y has objected to the Magistrate J u d g e ' s recommendation that the A L l ' s decisions denying coverage for physical and occupational therapy be reversed on the ground that these decisions were not supported by substantial evidence. The parties also do not object to a r e m a n d so t h a t the ALJ may properly consider Dr. M a n n ' s physician certifications. Finally, the parties do not object to a r e m a n d so that the ALJ may adequately evaluate w h e t h e r P l a i n t i f f required skilled home services for the management o f h e r care and p a t i e n t education. H a v i n g carefully reviewed the R & R ' s recommendations in this respect, the court finds t h e m well-reasoned and hereby ADOPTS t h e m in full. CONCLUSION F o r the reasons stated above, the court h e r e b y A D O P T S the Magistrate J u d g e ' s Report and Recommendation with the exception o f its recommendations w i t h regard to the stability p r e s u m p t i o n for observation and assessment services, w h i c h the court hereby REJECTS. The court R E M A N D S this m a t t e r to the ALJ for redetermination consistent w i t h the rulings set forth herein. SO ORDERED. D a t e d at Burlington, in the District o f Vermont, this

2~y o f October, 2010.

cm'~

12