Berman v. Sebelius
1:13-cv-04513
S.D.N.Y.Feb 11, 2015Background
- Sonia Berman received Medicare-covered skilled physical therapy and home-health aide services from Nov. 27, 2007 to Jan. 25, 2008; Medicare coverage was terminated effective Jan. 31, 2008.
- A QIO (IPRO) upheld termination; ALJ (Nov. 5, 2008) and MAC (May 6, 2009) initially affirmed; the case was later remanded to the MAC and then to an ALJ by stipulation and court order (Feb. 14, 2011) for further proceedings.
- On remand the ALJ held a hearing (July 6, 2011) and issued a decision (Aug. 26, 2011) finding termination proper because the record did not show the beneficiary required continued skilled therapy as of Jan. 31, 2008.
- The MAC reviewed de novo, admitted additional exhibits, considered the Jimmo settlement, and on Apr. 30, 2013 adopted the ALJ’s outcome: no skilled service need shown, so no Medicare coverage for dependent home-health aide services; denied request for attorney’s fees.
- Berman appealed, arguing the ALJ and MAC misapplied 42 C.F.R. § 409.44(c)(2)(iii), failed to develop the record, improperly weighed treating-physician evidence, and that the Jimmo settlement required coverage; Secretary argued MAC acted within authority and the decisions were supported by substantial evidence.
- The district court agreed the MAC erred procedurally by applying the wrong review regulations (it used standard MAC appellate regs rather than the remand-by-district-court regs) and remanded the case to the MAC for further consideration under the correct remand regulations; requests for further hearing on damages/fees were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the MAC exceeded its review scope on remand | MAC exceeded 42 C.F.R. § 405.112(c) by deciding issues ALJ did not rule on (esp. § 409.44(c)(2)(ii)) | MAC may make a new, independent decision on the entire record under remand regs | Court: MAC erred procedurally — it applied wrong MAC review regs instead of remand-by-district-court regs; remand to MAC for reconsideration under correct regs |
| Whether ALJ/MAC misapplied 42 C.F.R. § 409.44(c)(2)(iii) (improvement/maintenance standard) | Berman: she met (iii) — had expectation of material improvement and needed skilled services to establish/perform maintenance | Sec’y: ALJ and MAC correctly found record did not show need for skilled PT; coverage requires skill need, not mere potential benefit | Court did not finally decide merits; remanded for MAC to reconsider under correct procedural regs (ALJ findings previously adopted by MAC remain subject to further review) |
| Applicability of Jimmo settlement to her claim | Berman: Jimmo prohibits denial based on an “improvement standard”; it authorizes coverage where skilled care is needed even if restoration potential is limited | Sec’y: Jimmo clarifies policy but does not expand eligibility; here coverage was denied because skilled service was not required, not solely for lack of restoration potential | Court rejected use of Jimmo to resolve now — remand required so MAC can reconsider under proper remand regulation; did not grant relief based on Jimmo |
| Entitlement to attorney’s fees and damages | Berman: seeks fees/damages; contends Social Security Act incorporates Title II fee provisions and Jimmo settlement supports fee awards | Sec’y: No authority to award fees/damages in this context; Jimmo fee award was case-specific settlement, not precedent for this matter | Court denied Berman’s request for further hearing on damages and attorney’s fees in this proceeding; remand ordered for MAC reconsideration only |
Key Cases Cited
- None cited with an official reporter in the opinion (the opinion discusses Jimmo v. Sebelius and statutory/regulatory authorities but does not cite any reported appellate decisions).