Storman v. U.S. Office of The Secretary of Health and Human Services

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, who is proceeding pro se, appeals the decision of the Medicare Appeals Counsel denying his request for ongoing home health services. ECF No. 1, 13 at 1. This case is before the Magistrate Judge for adjudication by the consent of all parties. ECF Nos. 9 and 21; see 28 U.S.C. § 626(c)(1). Before the court are cross motions for summary judgment. ECF Nos. 24 (plaintiff's motion for summary judgment) and 25 (defendant's motion for summary judgment). For the reasons explained below, defendant's motion is GRANTED, and plaintiff's motion is DENIED.

         I. Background

         Unless otherwise specified, the following facts have been provided by the Administrative Record (AR) filed at ECF No. 14.

         1. Medical History

         Plaintiff is a male born in 1950 who has several chronic health conditions including hypertension, osteoarthritis of the knee, hiatal hernia, basal cell carcinoma, Barrett's esophagus, left keratoconus, obsessive compulsive disorder, autism spectrum disorder, major depression, hemochromatosis, gastroesophageal reflux disease (“GERD”), Tourette's Syndrome, chronic conjunctivitis, prediabetes, and drug-induced Parkinsonism. AR 42. The record does not include any indication of a change or worsening of plaintiff's various chronic conditions. See AR 37-59. Plaintiff lives in a retirement community and does not drive, but he is able to perform all activities of daily living (“ADL”). See AR 42; AR 56 (at 12/4/2017 dermatology appointment, Plaintiff “ambulated from the room”). Plaintiff is enrolled in Kaiser Permanente Senior Advantage Medicare Medi-Cal Plan North. AR 16, 167.

         In November of 2017, plaintiff told his primary care physician, Garth Davis, M.D., that he was interested in home health services on a permanent basis. AR 54. Dr. Davis explained to him that such services are typically for short-term rehabilitation after a patient has an acute decline in function, but informed plaintiff that he would ask the social work team if there was more that could be done for him. Id. On December 4, 2017, plaintiff told Dr. Davis that “he should receive home care every week or 2 indefinitely due to his multiple conditions.” AR 57. Dr. Davis noted that plaintiff was “[n]ot able to articulate his skilled nursing need other than his mental and emotional state are not stable.” Id. Plaintiff stated “I need someone to tell me what to eat . . . And I cannot handle all this stress . . . I need someone to check my blood pressure.” Id. Plaintiff's blood pressure, however, was “well controlled” and “at goal.” AR 49 (10/23/2017 telephone consult with Dr. Davis); AR 50 (11/1/2017 examination by Dr. Davis). Dr. Davis declined to prescribe home health care services because plaintiff “does not have a skilled nursing need that would justify home health.” AR 58 (12/20/2018); see AR 54, 57. Dr. Davis recommended that plaintiff use the resources available to him, including transportation through Kaiser.

         Plaintiff received treatment for his GERD from a gastroenterologist, Dr. Chhaya Hasyagar. AR 44-45 (8/21/2017 telephone call “[o]verall doing better”), 48 (10/16/2017 telephone call “overall doing better” and decreasing GERD episodes), 37 (3/5/2018 telephone appointment noting Plaintiff “[o]verall doing well except when he eats too fast or eats food that he is not supposed to”). On 3/5/2018, Dr. Hasyagar noted that plaintiff asked for home health support, and she “informed him that while it sounds reasonable, [she is] not actively following him for his other chronic conditions that he needs help for” and advised him to follow up with his primary care physician. AR 164. There is no record of an in-person examination or appointment with Dr. Hasyagar and no record of further discussion between the two regarding home health services. See AR. Plaintiff also received treatment from a dermatologist, Sima Zahra Torabian, M.D., who examined him in person on December 4, 2017. AR 55-56. Dr. Torabian conducted a punch biopsy, performed cryotherapy on plaintiff's face, and noted that plaintiff “tolerated the procedure well” and that plaintiff “ambulated from the room.” AR 56. Dr. Torabian did not order home health services for plaintiff. See AR.

         Plaintiff also received vision services from an optometrist (“OD”), Judith Lightman, who is not a medical doctor. AR 36. Lightman examined plaintiff on March 19, 2018 and noted that plaintiff “needs speech therapy, therapy for depression and blood pressure monitoring and blood tests at home. He has minimal to almost no transportation and is in need of Home Healthcare in general.” AR 36 (3/19/2018 visit). The record does not include any evidence that Lightman treated plaintiff, or was qualified to treat plaintiff, for any speech conditions, depression, or blood pressure conditions. See AR.

         2. Procedural History

         On December 26, 2017, plaintiff requested approval of home health services from Kaiser. AR 414, 428-431. On January 9, 2018, Kaiser denied plaintiff's request for home health services, concluding that plaintiff was not qualified for home health services. AR 424. Plaintiff appealed the denial to his Plan, the Kaiser Foundation Health Plan, which agreed with the denial and sent plaintiff's case to an independent reviewer, Maximus Federal Services. AR 412. On March 6, 2018, Maximus affirmed Kaiser's denial on grounds that plaintiff did not meet the requirements for home health services because skilled nursing or therapy services are not medically necessary, indefinite home health services is not reasonable and necessary for treatment, and because plaintiff is not home bound. AR 405-407. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) to appeal the Maximus determination. AR 39-40.

         A hearing was scheduled for April 30, 2018, and plaintiff submitted additional medical records for review including the March 19, 2018 letter from optometrist Lightman and a March 5, 2018 telephone appointment with gastroenterologist Dr. Hasyagar. AR 34-37. On April 30, 2018, ALJ Steven R. Parrish held a hearing at the Office of Medicare Hearings and Appeals in Kansas City, Missouri. AR 438-455 (transcript). Both plaintiff and a Plan representative appeared and testified. AR 445-54. Plaintiff testified that he was seeking home health services to be renewed every 60 days for the rest of his life “solely to preserve my longevity and to live a longer more fruitful life.” AR 445. He submitted the March 19, 2018 Lightman letter and the March 5, 2018 gastroenterologist telephone appointment in support of his request. AR 445-46. On May 9, 2018, the ALJ issued an unfavorable decision, holding that the Plan was not required to approve plaintiff's request for home health care. AR 16-23 (decision). The ALJ noted that the record included no evidence that plaintiff was homebound and that plaintiff's request for home health services 1-2 times per week was for blood pressure monitoring and general care. AR 17, 23 (referring to March 2018 Lightman letter and December 2017 primary care physician records). To qualify for Medicare coverage of home health services, a plan of care ordered by a physician for home health services is required; the ALJ explained that plaintiff's record did not reflect a plan of care ordering home health services for plaintiff, and such a plan is “necessary to determine what services are necessary and the frequency with which they need to be provided.” AR 23.

         Plaintiff appealed the ALJ's denial to the Medicare Appeals Council (“MAC”). AR 10. On September 20, 2018, the MAC held that plaintiff did not qualify for lifetime home health services and adopted the ALJ's decision. AR 3-7. In addition to adopting the ALJ's decision, the MAC made the following factual findings: that the “record does not indicate that a physician ordered home health services for the enrollee, established a plan of care of the enrollee, or requested pre-authorization for home health services. Moreover, the record does not demonstrate that the enrollee requires or has been receiving skilled care.” AR 6. The MAC also addressed plaintiff's request for home health services every 60 days for the remainder of his life, concluding that the MAC did not have authority to grant lifetime or indefinite home health services because home health services must be re-certified every 60 days for the services to continue over a period of time. AR 6.

         On September 28, 2018, plaintiff filed this lawsuit. ECF No. 1. Defendant answered on April 22, 2019. ECF No. 13. The parties filed cross motions for summary judgment. ECF No. 24 (plaintiff's ...