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BROWN v. RICHARDSON

December 5, 1973

Harry V. BROWN, Jr., for Harry V. Brown, Sr., Plaintiff,
v.
Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant


McCune, District Judge.


The opinion of the court was delivered by: MCCUNE

McCUNE, District Judge.

 Plaintiff Harry V. Brown, Jr., for Harry V. Brown, Sr., has filed a complaint seeking review of a final order of the Secretary of Health, Education, and Welfare. The action was brought pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

 The case is now before the court on the government's motion for summary judgment.

 There are two issues involved: (1) Whether the plaintiff is entitled as a matter of law to receive certain contested medicare benefits; and (2) Whether the government is estopped from denying that the plaintiff is entitled to the benefits.

 We hold that under the Social Security Act, the plaintiff is not entitled to the contested benefits, but we remand the case to the Secretary on the estoppel question.

 Harry V. Brown, Sr., was admitted to and discharged from various medical facilities numerous times after his first admission to Jameson Memorial Hospital in New Castle, Pa., on April 7, 1968, until his death. Mr. Brown was discharged from his next-to-last stay at Jameson Memorial Hospital on October 5, 1969. He was admitted the same day to the Golden Hill Nursing Home. On January 13, 1970, Mr. Brown was discharged from the nursing home and readmitted to the hospital. He died there 49 days later on April 26, 1970. This suit concerns whether the plaintiff or the defendant is responsible for paying the charges for the 49 days *fn1" of hospital services rendered Harry V. Brown, Sr., between January 13 and April 26.

 The government has refused payment because it contends that there was no period of 60 consecutive days following April 7, 1968, in which Mr. Brown had not been an in-patient of a hospital or facility meeting the requirements of § 1861(j) of the Act, 42 U.S.C. § 1395x(j); therefore, no new spell of illness as defined by § 1861(a) (1) of the Act, 42 U.S.C. § 1395x(a) (1), had begun; and therefore, Mr. Brown, having exhausted his benefits under the initial spell of illness, was not entitled to any benefits for services he received at the hospital on or after January 13, 1970. *fn2"

 There is no dispute that if Mr. Brown had spent the period from October 5, 1969, to January 13, 1970, (the time he was at Golden Hill before entering the hospital for the last time) at the home of one of his sons or at his own home, the 60 day period would have elapsed and a new "spell of illness" would have begun by the time he was hospitalized. Then he would have been entitled to benefits. The plaintiff contends that a new spell of illness should begin in this case because Mr. Brown was "home," in effect, since Golden Hill Nursing Home was his permanent residence. The Secretary argues, however, that regardless of the type of care Mr. Brown received and regardless of whether Golden Hill was his "home," Golden Hill falls within § 1861(j) of the Act, 42 U.S.C. § 1395x(j), and therefore, under § 1861(a) (2), 42 U.S.C. § 1395x(a) (2), the time he spent there cannot be counted toward the 60 day interval before a new spell of illness can begin.

 The Hearing Examiner agreed with the plaintiff's position and held that no monies for overpayment could be recovered from the plaintiff by the government. The Appeals Council, on its own motion, reviewed and reversed the Hearing Examiner's decision.

 We do not think it is necessary to review at length the Appeals Council's decision. Suffice it to say that we think their analysis of the Act is correct. While the result may be harsh, we think the Appeals Council properly interpreted the Congressional intent as expressed in the Act. If the result is to be changed, the Act must be amended by Congressional action, not judicial fiat.

 However, we remand this case to the Secretary on the estoppel question. It appears that the plaintiff raised the issue before the Hearing Examiner but neither the Hearing Examiner nor the Appeals Council considered or decided it. It was, however, raised again at oral argument here.

 The record shows that the plaintiff and his brother testified before the Hearing Examiner that they read and relied on a "Medicare Book" *fn3" which said "You don't have to bother about trying to keep track of how many days or visits you use in each benefit period. The notice you receive from the Social Security Administration after you have used any hospital insurance benefits, will tell you how many benefit days and visits you have left in that benefit period." (T. p. 5). According to ...


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