Rescinded 1981

SSR 77-34c: Section 1814(d)(1) (42 U.S.C. 1395f(d)(1)) Hospital Insurance Benefits—Emergency Services—Nonparticipating Hospital

20 CFR 405.152(b) and 405.192

SSR 77-34c

Fink v. Mathews, USDC, S.D.Fl., Civ. No. WPB 75-258-Civ-CF(11-15-76)

The claimant was admitted to a nonparticipating hospital for treatment of severe abdominal pain. An "acute abdominal series" was done upon admission. Twenty-six days later she was transferred to a convalescent center and 2 months later was transferred to a participating hospital where abdominal surgery was performed. Held, the services performed by the non-participating hospital are excluded from coverage under section 1814(d)(1) of the Social Security Act because the services furnished did not meet the definition of "emergency services" as set out in section 405.152(b) of the regulations since the claimant's life or health would not have been endangered had she been taken to a participating hospital within her area of residence.

FULTON, District Judge:


This is a review of a final decision of the Secretary of Health, Education and Welfare of the United States of America, who has denied the application of plaintiff, Sadie Fink, for hospital insurance benefits under the provisions of 42 U.S.C. §1395 et seq.

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For its consideration in this case, the Court has the Complaint and the defendant's Motion for Summary Judgment and memorandum in support thereof, which was filed together with a certified transcription of the record, including the evidence upon which the findings and decision complained of are based. No request for oral argument has been filed.


On January 10, 1974 plaintiff filed a claim for the payment of "emergency hospital services" furnished by the Good Samaritan Hospital in West Palm Beach, Florida for a period extending from July 30, 1973 to August 25, 1973, see Section 1814 of the Social Security Act; Title 42, U.S.C. §1395f(d)(1). Such claim for hospital insurance benefits was initially denied by the Program Officer of the Social Security Administration on March 12, 1974; reconsideration was denied on August 6, 1974.[*]

On May 20, 1975 plaintiff secured a final hearing before Administrative Law Judge Samuel C. Berson to review the aforementioned reconsidered denial of hospital insurance benefits. Section 205(b) of the Social Security Act; Title 42, U.S.C. §405(b). Plaintiff did not attend such hearing (which was conducted in New York), but was represented by counsel. Moreover, her son (Dr. Stephen Leslie) and daughter (Mrs. Elsie Karp) testified in her behalf.

On May 30, 1975, the Administrative Law Judge entered his written decision affirming the initial determination and denying reimbursement for the inpatient services provided the plaintiff at the Good Samaritan Hospital from July 30, 1973 to August 25, 1973. The decision of the Administrative Law Judge was affirmed by the Appeals Council on October 14, 1975, and became the final decision of the Secretary. In this action, plaintiff seeks medical review of the Secretary's final decision pursuant to Section 205(g) of the Social Security Act, Title 42, U.S.C. §405(g).


Section 1812 of the Social Security Act, Title 42, U.S.C. §1395(d) provides that a person entitled to hospital insurance benefits has the right to have payment made on his behalf for inpatient hospital services furnished for a period of time in excess of that involved herein. The payment of such benefits is limited, however, to such hospitals which have entered into an agreement with the Secretary pursuant to Section 1866 of the Social Security Act.[1] See Title 42, U.S.C. §1395cc. However, payments for inpatient hospital services furnished shall be paid to hospitals which have not entered into an agreement with the Secretary if "such services were emergency services" Title 1814(d) of the Social Security Act; Title 42, U.S.C. §1395f(d)(1). Title 20 C.F.R. §405.152(b) defines emergency services as follows:

"For purposes of the hospital insurance benefits program, "emergency services" are those inpatient hospital services (see §405.116) and out-patient hospital diagnostic services (furnished before April 1968—see §405.145) which are necessary to prevent the death or serious impairment of the health of the individual, and which, because of the threat to the life or health of the individual necessitate the use of the most accessible hospital (see §405.192) available and equipped to furnish such services. (With respect to outpatient hospital services furnished on or after April 1, 1963—see §405.249.)" [emphasis added]

In this regard, Title 20 C.F.R.§405.192(b) specifically limits reimbursement for emergency inpatient hospital services provided by non-participating hospitals to situations where transport of the patient to a participating hospital would be medically inadvisable, e.g.,

"the participating hospital would have taken longer to reach and the patient's condition necessitated immediate admission for hospital services; and for so long as that condition precluded the patient's discharge or removal to a participating hospital." Id.

In urban areas, where both participating and non-participating hospitals are similarly available, it will be presumed that the services could have been provided in a participating hospital. 20 C.F. R. §405.192(b)(2). The presumption can be overcome only by "clear and convincing evidence showing the medical or practical necessity in each individual case for taking the patient to a non-participating hospital instead of a similarly available participating hospital. Id. [emphasis added]

Even though prompt removal of a patient to a hospital is required, services provided in a non-participating hospital are not covered as "emergency inpatient hospital service" if there was a participating hospital in the same general area but further away from the place where the emergency occurred provided that professional judgment confirms that the additional time required to take the patient to a participating hospital would not be hazardous to him. Title 20 C.F.R. §405.192(b)(3).

In other word, the "accessibility" requirements of the emergency rule will not be met under the following circumstances:

"(1)(i) The diagnosis in the emergency claim or other evidence indicates there was some time for getting the individual to a hospital, and no immediate need to rush him to one; and

(ii) There is a participating hospital in the area which is further away for the point at which the emergency occurred than the non-participating hospital, but is equipped to handle such an emergency; and

(iii) The additional time it would have required to take the individual to the participating hospital would not have been hazardous to the patient; . . ." Title 20 C.F.R. §405192(d).

The following factors are not considered relevant as to a determination of the accessibility question:

". . . (b) The personal preference of a patient, or of his physician, or of members of his family, or others, in the selection of a hospital, will not be considered a factor in determining whether services were furnished by the most accessible hospital. Nor will the non-availability of staff privileges to the attending physician in a participating hospital which is available and most accessible to the patient, or the location of previous medical records, be considered a factor in the determination of accessibility." 20 C.F.R. §405.192(b)(4).


Predicated upon the factual considerations, outlined infra, the undersigned shall now address himself to the single narrow issue of whether the Secretary's decision (as rendered by the Administrative Law Judge) that plaintiff was not entitled to hospital insurance benefits is supported by substantial evidence in the record. Such decision would appear to necessarily require a determination as to whether plaintiff's condition constituted an "emergency" as defined by Title 20 C.F.R. §405.152(b).

As an initial consideration, the undersigned wishes to acknowledge that there can be no dispute as to the fact that plaintiff's condition required "prompt" hospitalization to prevent the "serious impairment of her health." The difficulty herein would seem to hinge upon the second prong of the emergency test, i.e., whether plaintiff's "life or health would have been threatened had she been taken to a participating hospital in the area of her residence", instead of the "closer" non-participating hospital.

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Substantial evidence has been defined as that evidence which a "reasoning mind would accept as sufficient to support a particular conclusion." Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972); Hayes v. Gardner, 376 F.2d 517, 520 (4th Cir. 1967); Johnson v. Richardson, 336 F.Supp. 390 (E.D. Penn. 1971). Moreover, the burden of proof is upon one who seeks the benefit of the statute.Id.


The evidence before the Administrative Law Judge reflected that at about 6:55 P.M. on July 30, 1973, plaintiff called her physician (Dr. Joseph R. Skyer) and complained of "severe abdominal pains" and nausea. Without making a house call, Dr. Skyer placed petitioner in Good Samaritan Hospital where she arrived by ambulance at 7:50 P.M.

The hospital records reflect that the provisional (admitting) diagnosis was that of "severe abdominal pain-intestinal obstruction and acute pancreatitis." The primary diagnosis, in addition to the above, listed "probable diabetes mellitus, combined internal and external hemorrhoids and rectal bleeding." An "acute abdominal series" was done on admission.

Consulting physician C.M. Harris, M.D. diagnosed petitioner's condition as "possible acute pancreatitis" and advised "conservative therapy, sedation, intravenous fluids . . .", as well as "further diagnostic studies." The record reflects that plaintiff was released from Good Samaritan Hospital on August 25, 1973 and was transferred to a convalescent center. She was, however, subsequently transferred to the University Hospital in New York on October 25, 1973, where she underwent an abdominal laporotomy for the treatment of a pancreatic cyst on November 6, 1973. Such operation was characterized as a "complication" of plaintiff's original condition.

Although the record leaves no doubt that plaintiff's condition required "prompt" hospitalization, it is somewhat less than clear whether plaintiff's life or health would have been threatened had she been taken to any of the participating hospitals in the general area. The burden of so establishing would be upon Plaintiff.

Distance-wise, Good Samaritan Hospital was the closest to plaintiff's residence (four and one-half miles). However, two participating hospitals in the immediate area also had beds available. In this regard, Doctors Hospital was located seven and one quarter miles form plaintiff's residence and Kennedy Hospital was about eight miles. Although plaintiff's daughter testified as to a "bottleneck" caused by "airport traffic" enroute to the participating hospitals, the Administrative Law Judge took note of the fact that plaintiff's daughter was a New York resident and based her observation upon "winter traffic" conditions. Although the record did reflect that plaintiff's daughter maintained a New York residence, the record is unclear as to what season of the year she was basing her determination upon.

In any event, although emergency treatment was administered to plaintiff upon her admission to Good Samaritan Hospital, the Administrative Law Judge was likewise aware that plaintiff had waited some three hours before first telephoning Dr. Skyer. Moreover, nothing in the record revealed what attempt Dr. Skyer had made to place plaintiff in a participating hospital.

The record reflects, however, that Dr. Skyer was on the staff of only Good Samaritan Hospital and St. Mary's Hospital. Although St. Mary's was a participating hospital and was located about five and one-half miles from plaintiff's residence, the record nonetheless reflects that it did not have a bed available on the date in question. In any event, however, the fact that Dr. Skyer was not on the staff of any of the other participating hospitals would not affect the "accessibility" of such hospitals. Title 20 C.R.F. §405.192(b)(2). Moreover, the record suggest that Dr. Skyer had not even attempted to place plaintiff in St. Mary's Hospital.

Finally, one Dr. Cohn in his medical evaluation dated July 22, 1974 came to the following conclusions:

"Another hospital bed was available for this patient. Considering the delays related to transportation and admission procedures, the delay in diagnosis and therapy would not have been significantly different to justify approval of this case as an emergency. The services rendered subsequent to admission are related to comfort of the patient, but immediate necessity is insufficient to justify the case under the intent of the emergency provision of the Medicare program. The acute abdominal series of X-rays done on admission are considered an emergency measure, but they could have been done at the participating accessible hospital or performed and the patient transferred to the participating hospital.

Moreover, Dr. Leslie testified that plaintiff's state of emergency continued until treatment of all complications. Plaintiff, however, was released prior to the date that all complications were in fact treated. It thus becomes unclear at best as to whether plaintiff could have been transferred, subsequent to her admission to a participating hospital. The witness further indicated that it would be inadvisable to remove the plaintiff to another facility until the complications were treated which he acknowledged to hove occurred on November 6, 1973. Nonetheless, Dr. Leslie later admitted that the plaintiff had in fact been transferred to a convalescent center on August 25, 1973, before all the complications had been treated. In this regard, she underwent an abdominal laporotomy for treatment of a pancreatic cyst in University Hospital, which is located in New York. The witness further testified that there were no other conditions apart from acute pancreatitis justifying immediate hospitalization.


For these reasons, the undersigned must conclude that the finding of the Administrative Law Judge that plaintiff's condition was not an "emergency" within the meaning of 20 C.F.R. §405.152(b) is supported by substantial evidence in the record and the Secretary's decision should, therefore, stand as valid.

[*] That is on reconsideration, the initial denial was affirmed on Aug. 6, 1974. (ed)

[1] Good Samaritan Hospital has not entered into any such agreement and is, therefore, not participating provider in the Medicare program.