HEARING - U.S. Senate Special Committee on Aging

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the Medicare Act. A copy of the Hooper decision is
appended here. The Secretary of the Department of
Health and Human Services responded to the court ruling
by publishing the same criteria as a Ruling' in July
1985. On behalf of the plaintiffs, the Center then
urged the court to find that the criteria as published
violate- the Administrative Procedure Act because they
were published without an opportunity for public
comment, and also to find that they violate the
Medicare Act because they establish criteria which are
more restrictive than the Act.
On May 13, 1986, the court Issued a pre-trial order
requiring the parties to attempt to reach a settlement.
Despite the Center's best efforts, and the support of
over 30 physicians and other rehabilitation hospital
specialists, the Health Care Financing Administration
refused to accept any changes to Medicare's coverage
criteria. The case has now been scheduled for another
court appearance.
4. The Center is producing written materials to help
Medicare patients, their helpers, and providers, assess
Medicare denials for inpatient hospital rehabilitation
and to appeal cases through the first stage of appeal,
the 'Reconsideration. center attorneys are also
speaking at gatherings of patients and providers
concerned with this issue of vital importance to the
elderly and disabled.
V. TNAPPROPRTAIE MEDICARE DENTALS AND TP TNEFFrICArV OF APPPAT
Even if it is not possible to extend current statutory
entitlements to meet the full cost of catastrophic illness,
certainly the coverage presently mandated by law should actually
be available in the field. Unfortunately, the Health Care
Financing Administration has taken steps to ensure that Medicare
skilled nursing facility, home health, and hospital
rehabilitation coverage is radically restricted.
The United States District Court for Connecticut has recently
recognized Medicare coverage abuses in the skilled nursing
facility area. District Court Judge Jose A. Cabranes issued a
Memorandum of Decision on April 23, 1986 in the case of Fox v.
Bowen (Civil Action No. 5-78-541 (JAC)), a class action lawsuit
originally filed in 1978. A copy of the FX decision is appended
here. Judge Cabranes found that although Medicare law requires
that coverage be granted to patients receiving daily physical
therapy treatments, the Health Care Financing Administration
actually awarded coverage 'to only a small number of patients who
demonstrate a rapid recovery of body function. Even these
patients generally receive no more than two weeks of coverage.'
Judge Cabranes found that RCFA uses arbitrary presumptions or
'rules of thumb' to deny coverage, rather than conducting 'an
individualized assessment of [a patient's] need for daily
physical therapy based on the facts and circumstances of his
particular case.'
The judge also noted that patients unfairly denied Medicare
coverage are forced to pay for physical therapy with their own
funds. As Judge Cabranes stated: 'in such circumstances, many
patients forego medically necessary physical therapy because they
or their families believe they cannot afford to pay for such
therapy themselves.' Loss of therapy jeopardizes the patient's
recovery. If 'more elderly persons receive physical therapy
after sustaining a stroke or fracture, fewer of these persons
would have to spend the remainder of their lives in nursing
homes." Moreover, if patients were able to live independently,
it would 'actually reduce the 'fiscal burdens' on the federal and