Volume I Issue 9 June 1996
ASSISTIVE TECHNOLOGY
NOT JUST WHEELCHAIRS
Copyright 1996, Neighborhood Legal Services, Inc.
INTRODUCTION
Our first eight issues of IMPACT covered several assistive technology (AT) funding sources: Medicaid, the special education system, the state vocational rehabilitation agencies (VESID and the Commission for the Blind), SSI's Plan for Achieving Self Support (PASS) and the Physically Handicapped Children's Program. We stressed that AT can take many forms and assist both children and adults who have a wide range of disabilities.
The AT Advocacy Project encourages readers to call us regarding any funding source and any item of AT. Why then do the majority of our callers ask about Medicaid funding of wheelchairs?
Our articles always emphasize how to appeal an adverse decision. We often cite examples of AT where funding only follows a successful appeal. Why then do so many readers seem to accept, as the final word, the statement of a government agency, school or private insurance company when they say: "No, we cannot pay for that . . .?"
We will use the major part of our June and July issues to discuss a variety of novel AT devices and funding sources. Case examples using the standard reasons for not funding an item will show how good advocacy enabled the individual to obtain the device in question.
EXPAND YOUR DEFINITION OF AT
The definition you use for AT often depends on the disability you are working with. The more involved you are with a specific disability, the more likely you are to narrow your working definition of AT to fit that population. For example, if you work for persons with spinal cord injuries, you may think of AT as wheelchairs.
Your working definition may also vary with funding sources. Typically, the definition of AT relates to the purpose of the program or funding source. For example, when you work with Medicaid, you face a definition that relates to medical needs. When you work with special education, you face a definition that relates to educational needs.
We should all use an expansive definition of AT. If we work with persons with severe physical disabilities, we should not think of AT only as wheelchairs. We should think of other devices the person can use to achieve their highest degree of functioning and independence.
A funding source may offer a very restrictive interpretation of what AT devices it will cover. However, unless they can point to controlling laws or regulations to justify the interpretation, do not be quick to take their word for what they cannot do. Also, be careful not to apply your own restrictive interpretation of AT to limit what might be available to a person with a disability.
CASE HISTORIES
In this article, we will share case histories involving Medicaid and some unique items of equipment that were approved through the fair hearing process. Next month we will provide several more case histories involving other funding sources.
Medicaid: Durable Medical Equipment
In our January 1996 issue, we explained that Medicaid refers to AT as durable medical equipment (DME) and we provided you with the relevant legal references governing its prior approval. We explained the prior approval process where the State Department of Health (DOH) reviews all DME requests.
DOH issues the Medicaid Management Information System (MMIS). The MMIS contains lists of frequently requested DME items under Medicaid. It provides Medicaid coding information for use by providers, but does not define what is medically necessary. The MMIS is neither law nor regulation and should in no way limit what is available through Medicaid.
The MMIS has taken on a role of far greater importance than it legally has a right to. Too often, we do not request prior approval when items are not listed in the MMIS. By expanding the definition of AT, many advocates have obtained unique items of DME through the Medicaid fair hearing process to assist persons with disabilities.
In David R., the treating practitioner made a request for an air conditioner for an active two year old, who suffered recurring bouts of asthma. His mother could not keep him in his bed, in an oxygen tent. His doctor decided that an air conditioner could effectively control David's environment while allowing him to move about his bedroom. DOH denied approval for an air conditioner stating that its use was not efficient.
A provider loaned the family an air conditioner. Its use hastened a significant improvement in the child's condition as evidenced by fewer trips to the emergency room. The doctor monitored David's reaction to the air conditioner and informed DOH in a supporting letter that "it still remains my professional opinion, as David's treating physician, that an air conditioner is medically necessary to help prevent, alleviate, and allow David to maximize a normal functional capacity for a child his age." This language helped persuade the administrative law judge to overrule DOH's denial.
In Sarah K., the treating physician created a piece of DME specifically for one patient. Sarah was 17 years old, non-ambulatory and spent most of her waking hours strapped tightly in a wheelchair. She had poorly controlled seizures, marked cerebral atrophy and dementia. When she had a seizure, she had to be removed from her wheelchair immediately and placed in her bed or on the floor.
The doctor designed a "work-positioning area" that resembled a six foot long, mesh play-pen. Its design allowed freedom of movement and access to her family and surroundings. Sarah used her first work-positioning area so much that it wore out. DOH denied prior approval for the construction of the second unit because it "does not cure, correct, or alleviate Sarah's medical condition and is used primarily for non medical purposes."
Sarah's doctor indicated that this item would provide a much safer environment for her because of her frequent and unpredictable seizures and allow for beneficial stimulation by interacting more with others. At the hearing, witnesses established that the work position area facilitated her therapy, contributed to the improvement of her motor skills and enhanced her capacity for more normal activity. The fair hearing decision reversed DOH and awarded funding for the work positioning area.
In Matter of Alice, an attorney argued that an environmental control system was medically necessary. Alice has multiple sclerosis and quadriplegia. Her doctor requested approval for a Quartet Technology Series 5 Simplicity voice-activated environmental control system. His request was denied because the device is "not covered under the [Medicaid] Program because it is used primarily and customarily for nonmedical purposes or is not generally accepted by the medical profession as being therapeutically effective."
The administrative law judge overruled DOH and awarded funding for the device. The evidence presented at the hearing established that the environmental support functions are essential to the maintenance of health and safety in the home.
Sometimes the long-term work of advocates results in a change in policy. During the mid-80s, many advocates and speech pathologists struggled with a very restrictive approach in approving prior approval requests for electronic communication devices such as the Touch Talker. Our regional DOH almost never approved them and we always had to go to fair hearings to seek approval. We won most of these hearings, but our clients would wait many months to obtain a device that allowed them to speak. When we lost, a court appeal was necessary and the wait stretched out to a year or more.
In the late 1980s, a group of speech pathologists were instrumental in working with DOH to establish a new, less restrictive policy for approving electronic communication devices. Several advocates were also instrumental in providing input to this work group. We believe that the years of successful fair hearing advocacy and the willingness to file court appeals contributed to this change in policy. With the new policy we see fewer denials.
The February 1996 issue of IMPACT described SSI's Plan for Achieving Self Support (PASS), a special AT funding source. In April 1996, the Social Security Administration issued revised Program Operations Manual System (POMS) provisions for the PASS. In May 1996, SSA approved a new eight-page PASS application form.
Here are some highlights from the new POMS:
· Generally, the PASS will only assist a person to obtain an "entry level" job.
· A goal beyond entry level will be approved if entry level earnings would not be enough to meet work expenses and other expenses.
· A PASS will only be approved for items to allow a person to start a job or business.
· Generally, a PASS can only be used for down payment costs. The down payment can be the full purchase price if the person cannot afford installment payments.
· Installment payments, such as car payments, are not approvable unless the person cannot meet ordinary living expenses and the continuing costs with income and resources which remain after the amount excluded for PASS expenses.
· The PASS must include a list of steps that show progress toward the work goal and a time frame for when the person expects to reach each step.
The new POMS reinforces the principle that all expenses must be reasonable and necessary. When a person proposes to purchase expensive items, like a computer or a vehicle, they must explain why a less costly alternative was not considered. The new policy also requires the local Social Security office to conduct regular compliance reviews, at least yearly, to make sure the person is meeting the terms of the PASS.
[If you would like a six-page summary of the POMS changes or a copy of the new PASS form (paper copy or disk copy on WordPerfect 5.1), please call the AT Advocacy Project.]
THANKS !!!!!!!
Advocacy Project
The Neighborhood Legal Services' AT staff want to take this opportunity to welcome the members of both the Upstate and Downstate Advisory Councils. These individuals volunteered to commit their time and energy to assist us in maintaining our mission statement. We are looking forward to working with them and wish to say thank you for their participation!