H. Glenn Ziegenfuss v. Secretary of Health and Human Services

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12629
Non-Argument Calendar
____________________
H. GLENN ZIEGENFUSS,
for the Estate of Margaret Ziegenfuss,
Plaintiff-Appellant,
versus
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cv-02373-SDM-CPT
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2 Opinion of the Court 22-12629
____________________
Before R OSENBAUM , JILL PRYOR , and TJOFLAT, Circuit Judges.
PER CURIAM:
H. Glenn Ziegenfuss, proceeding
pro se on behalf of his
mother’s estate, appeals the District Court for the Middle District
of Florida’s order granting summary judgment to the Secretary of
Health and Human Services (the “Secretary”) on his claim seeking
Medicare Part A coverage for skilled nursing services furnished to
his now-deceased mother, Margaret Ziegenfuss, who was a Medi-
care beneficiary. He argues that Margaret met Medicare Part A’s
three-day inpatient-stay requirement before being transferred to a
skilled nursing facility because Cleveland Clinic Hospital intended
to admit his mother on December 27, 2007, rather than on Decem-
ber 28, 2007, resulting in a stay of three days until December 30,
2007.
Ziegenfuss sought judicial review of the Secretary’s final de-
cision in the District Court, as he was entitled to do.
See 42 U.S.C.
§§ 405(g), 1395ff(b). When an appeal is taken from summary judg-
ment granted in favor of the Secretary under 42 U.S.C. § 405(g), we
perform the same review functions as the district court without
presuming that it was correct.
McDaniel v. Harris, 639 F.2d 1386,
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22-12629 Opinion of the Court 3
1388 (5th Cir. 1981).1 Our review of the Secretary’s decisions is
limited to determining whether they are arbitrary, capricious, an
abuse of discretion, not in accordance with law, or unsupported by
substantial evidence.
Fla. Med. Ctr. of Clearwater, Inc. v. Sebelius,
614 F.3d 1276, 1280 (11th Cir. 2010). Substantial evidence is “more
than a scintilla and is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.”
Id. (internal
quotation marks omitted). We may not “decide the facts anew,
reweigh the evidence, or substitute our judgment for that of the
Secretary.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983).
Medicare Part A is a hospital insurance program under the
Social Security Act that covers the costs of care at facilities such as
hospitals, skilled nursing facilities, and hospice care facilities for el-
igible people over 65 years old.
See 42 U.S.C. §§ 1395c–1395i-6.
Coverage for services provided in skilled nursing facilities extends
to “post-hospital extended care services.”
Id. § 1395d(a)(2)(A). The
Act defines “post-hospital extended care services” to mean “ex-
tended care services furnished an individual after transfer from a
hospital in which he was an inpatient for not less than 3 consecutive
days before his discharge from the hospital in connection with such
transfer.”
Id. § 1395x(i);
see also 42 C.F.R. § 409.30(a)(1) (A patient
1 Decisions of the Fifth Circuit issued on or before September 30, 1981, are
binding precedent in the Eleventh Circuit.
Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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4 Opinion of the Court 22-12629
is eligible for skilled nursing facility coverage only if he or she has
been “hospitalized . . . for medically necessary inpatient hospital or
inpatient [critical access hospital] care, for at least 3 consecutive cal-
endar days, not counting the date of discharge.”) (originally en-
acted in 42 C.F.R. § 405.120(c),
see 31 Fed. Reg. 10,116, 10,119 (July
27, 1966)). The Act does not define “inpatient.”
The
Medicare Benefit Policy Manual provides that time
spent in observation or in the emergency room before inpatient
admission does not count toward the three-day qualifying
stay. CMS,
Medicare Benefit Policy Manual, Publ’n 100-02, ch. 8,
§ 20.1, https://www.cms.gov/Regulations-and-Guidance/Guid-
ance/Manuals/Internet-Only-Manuals-IOMs-Items/CMS012673.
It further states that inpatient status begins with the calendar day
of hospital admission, but the day of discharge is not counted as a
hospital inpatient day.
Id. A practitioner’s order to admit as an
inpatient is a “critical element” in clarifying when a patient has
been admitted as an inpatient and is required for coverage under
Part A.
Id., ch. 1, § 10.2. The
Medicare Claims Processing Manual
provides that a patient is an inpatient “upon issuance of written
doctor’s orders to that effect.” CMS,
Medicare Claims Processing
Manual, Publ’n. 100-04, ch. 3, § 40.2.2(K),
https://www.cms.gov/Regulations-and-Guidance/Guid-
ance/Manuals/Internet-Only-Manuals-IOMs-Items/CMS018912.
The regulations generally allow doctors to make verbal orders, but
state that they must be dated, timed, and authenticated by an ap-
propriate practitioner. 42 C.F.R. § 482.24(c)(2).
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22-12629 Opinion of the Court 5
Interpretations in agency manuals warrant deference under
Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161 (1944), mean-
ing they are entitled to deference to the extent that they have the
“power to persuade.”
Moore ex rel. Moore v. Reese, 637 F.3d 1220,
1235 n.26 (11th Cir. 2011) (internal quotation marks omitted) (ap-
plying
Skidmore deference to the CMS Medicaid Manual).
Skid-
more deference to an agency interpretation is dependent upon “the
thoroughness evident in its consideration, the validity of its reason-
ing, its consistency with earlier and later pronouncements, and all
those factors which give it power to persuade, if lacking power to
control.”
Skidmore, 323 U.S. at 140, 65 S. Ct. at 164.
Here, Ziegenfuss has not shown that the Secretary’s denial
of Medicare Part A coverage on the basis that Margaret did not
meet the qualifying three-day inpatient-stay requirement before
being transferred to the skilled nursing facility was arbitrary, capri-
cious, an abuse of discretion, contrary to the Social Security Act, or
unsupported by substantial evidence. Since Margaret was dis-
charged on December 30th, which is not included in the three-day
calculation, she needed to be admitted on December 27th or earlier
to have a qualifying three-day stay. But substantial evidence sup-
ported the finding that Margaret only stayed at the hospital for two
days—from December 28, 2007, to December 30, 2007. All medical
records showed that she was admitted on December 28th and dis-
charged on December 30th. The admissions order was signed on
the 28th, the transfer order listed admission and discharge dates of
12/28/07 and 12/30/07, and summary records and medication
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6 Opinion of the Court 22-12629
administration reports listed the admission date as December 28th
with the length of stay as two days. There was no documentation
in the record of a physician’s verbal order to admit Margaret to the
hospital on December 27th to support a finding that she was admit-
ted on that date. Accordingly, we affirm.
AFFIRMED.
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