United States District Court, E.D. California
MICHAEL D. STORMAN Plaintiff,
v.
U.S. OFFICE OF THE SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
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 ...