HEARING - U.S. Senate Special Committee on Aging

10,940
142
New Developments
i92 586
physical therapy to which they may he entitled
C R'etl,-l
under Medicare, may actually reduce the "fiscal
The issur of relief has not i1Ken extensively
burdens" on the federal and state treasuries by
briefed by the
enabling more elderly persons to live indepen-
tartics to this action. Hloever,
the plaintiffs have suggested that the Secretary
dently outside nursing hitnmes. See Finding of
be required to adopt a presumption of Medicare
Fact 17.
coverage whenever the patient's treating physi-
Accordingly. foe the reasons siated above, the cian prescribes a program of daily physical ther-
court concludes that the dcfendant's practices of apy; the Secretary could rebut this presumption,
determining eligibility for skilled physical ther- according to the plaintilffs by offering substanapy
benefits under Part A of Medicare violate tial evidence (based on more than a "paper
the Due Process Claus of the Fifth Amend- record") that the services prescribed by the phyment.9sician
are not covered by Medicare. The court
finds that such a procedure is unsupported by
2. Ibe Secretary's Procedures for Reviewing any statutory or regulatory authority and is
SNF Coverage Decisions
likely to saddle the government with "fiscal and
The plaintiffs also contend that the Secre- administrative burdens" beyond those that
lary's "presumption of non-liability," see Find- would be appropriate under the balancing test
rngsf Fac. 23, 24. has caused the SNFa' initial of alhews v. Eldridge; indeed, the effect of
determinations of Medicare coverage to be such a procedure could be to permit doctors to
impermisslibly biased against the granting of dispense Medica re benefits without the con-
benefits. In support of this claim, the plaintiffs straints of intermediary review.
have offered testimony that some SNF person- Although the plaintiffs are not entitled to the
nel have tended in "questionable" situations to remedy that they have requested, they are enti.
"'effIl always on the side of denying, rather than tled to some relief. Accordingly, an order shal
allowing" coverage in order to preserve their enter declaring unlawful the intermediaries'
"presumption of non-liability." See Finding of improper practices of denying claims for physi-
Fact 24.
cal therapy benefits, enjoining the future use of
The Secretary has sirsce the conclusion of this such practices and instructing the Secretary
trial promulgated regulations that terminated
properly to supervise determinations of physical
therapy coverage made by his intermediaries.
the "presumption of non-liability" effective
March 24, 1986 See 51 Fed Reg. 6222. Accord-
Members of the plaintiff class whose claims
ingly, the plaintiffs' challenge to the Secretary's
were denied based on practices of the
"presumption of non-liability" procedure must
intermediaries that have been found to be
unsupported by applicable regulations, see Sec-
be deemed moot.
tion IIB(l), sopr', a*nd who have not prevailed
It appears that the new regulations have not on appeal, are entitled to reconsideration of
eliminated certain other practices that were their claims. See generally City of New York,
criticized by the plaintiffs in connection with supra, 742 F2d at 739-740.
their chalenge to the "presumption of non-liability."
For example, the intermediaries presum-
The parties shall confer and submit to the
ably may continue to scrutinizre SNFs' atwardsi of
court, by no later than June 20, l986, a pro-
coverage more thoroughly than SNFs' denials of
posed judgment effectuating this decision. The
proposed judgment shall include a description of
coverage. Sec Findings of Fact 22,Zi. Hoewever.
the record contains insufic~ient evidence to per-
the procedure that is to be used by the Secretary
suaide the court that the Secretairy's eurrent
in reconsidering the plaintiffs' caims for bene-
precedures for reviewing SNF coverage determifits.nations
operate in a manner that is impermissi-
Conclusion
bly biased against the members of the plaintiff
The court has jurisdiction over this action
class.
pursuant to 42 U.S.C. § 405(g). The plaintiffs
Moreover, to the extent that the SNFs may ore entitled to judgment with respect to their
have fell undue pressure in the past to deny challenge to the intermediaries' improper prac-
arguably meritorius claims for physical therapy tices of evaluating claims for physical therapy
coverage, any such pressure is likely to be benefits under Part A of Medicare. The plain-
reduced substantially as a result of the remedy tiffs' challenge to the drfendant's "presumption
to be provided in this action, It is to this ques- of non-liability" has been rendered moot by the
tion that the court now turns.
defendant's termination of that procedure. By
"T t paiatiiffit, Iyini -Jenf ' CAUX.a4 576 F24d I
(2d Cir. 195). tl itise an nial protectio n a ainig ula,
thi ihce dbty Pe* ho pes a ther 4elh ad Mr4car,
rammerr aiaey isrise atil. *hilb ths abo do
roAt Appeal aOe peemanetnoy de pi-d (-ara Althourh
1 35,374
the -aan nre4 not rech ia .i. clm in igti5t at titonition
o6 the plinltilfl ar taseo cahalkinir to the 4ilrts, lnd '
ea.-ere 4tl trr niiojcn prees the -oan oarn sn p-ais
that Je / . C' O5NO ir detot di4hinjoiui h , boib
krelly alnd touno Iro. It'. lb, -at h.,
01986, Commerce Clearing House, Inc.