HEARING - U.S. Senate Special Committee on Aging

145
MEMORANDUM RE: SIGNIFICANCE OF THE JUDGEMENT ISSUED IN FOX V.
BOW- ON JANUARY 13, 1987.
Jose A. Cabranes, U.S. District Court Judge for the District of
Connecticut, has issued a detailed Judgement to effectuate the
Memorandum of Decision and Order entered in Fox v. Bowen, (Civil
Action No. H-78 541)(JAC), on April 23, 1986. In the April 23rd
Memorandum, Judge Cabranes ruled that the Medicare
administration's practice of arbitrarily denying Medicare skilled
nursing facility coverage to Connecticut's residents requiring
daily physical therapy treatments violates the Medicare statute
and regulations and the due process clause of the United States
Constitution.
The recent Judgment, filed on January 13, 1987, provides for both
retroactive and prospective relief. Every living member of the
Plaintiff class, including those patients denied Medicare nursing
home coverage as early as October 1978, will be notified of the
Court's ruling by first-class mail, and offered the opportunity
to request a good-faith, individualized redetermination of their
entitlement to coverage, free from the arbitrary rules of thumb
and presumptions formerly used by the federal government to deny
benefits.
In its Jud"ment the District Court provides for the appointment
of a <strong>Special</strong> Master to oversee Medicare's nursing home coverage
determination process. Subsequent to the entry of the Judgement,
the Court appointed yale Law School Professor Robert A. Burt to
be the <strong>Special</strong> Master. Professor Burt will conduct a training
seminar for all Connecticut intermediary and provider personnel
during which he will explain the rulings of the court, including
the requirement that beneficiaries receive an individualized
assessment of their entitlement to skilled nursing facility
benefits.
Following the completion of the training seminar, Professor Burt
will receive copies of all redeterminations issued by Medicare
fiscal intermediaries for members of the Plaintiff class
(Connecticut residents who received daily physical therapy
treatments in skilled nursing facilities), as well as copies of
all initial coverage determination issued by skilled nursing
facilities during a six month trial period. In addition,
Professor Burt will undertake an in-depth analysis of randomly
selected cases on a sample basis to determine whether the rulings
of the Court have been properly implemented. This analysis will
include examination of the actual medical record in the sample
cases. Professor Burt is also empowered to interview patients,
nursing home personnel, and attending physicians, concerning the
sample cases he selects.
After the six month trial period is completed, Professor Burt
will report to the Court concerning whether the government has