Volume II Issue 1 September/October 1996
THE DEPARTMENT OF VETERANS
AFFAIRS
AS A FUNDING SOURCE FOR ASSISTIVE TECHNOLOGY
Copyright 1996, Neighborhood Legal Services, Inc.
INTRODUCTION
This is our eleventh issue of IMPACT, now a bi-monthly publication. During our first year, we discussed many standard assistive technology (AT) funding sources like Medicaid, vocational rehabilitation agencies and public school special education programs. Now, as we continue in our second year, we will investigate and report on several additional funding sources, some of which you may not have considered as sources for funding AT. As always, we hope to provide information to assist you as you consider a variety of funding sources so that your clients or consumers have every possible chance of obtaining the AT they need.
This issue we report on the Department of Veterans Affairs (VA) as a funding source for AT. This article explains what the VA is; how one qualifies for VA services; the criteria governing approval of AT; and how to appeal a denial by the VA. We hope that many of our readers will look to the VA as a funding source for those men and women who meet the eligibility criteria.
WHAT IS THE VA?
WHO QUALIFIES FOR VA SERVICES?
The Department of Veterans Affairs, often referred to as the Veterans Administration, oversees programs providing a wide range of benefits for qualifying veterans. These include, for example, cash benefits, educational assistance, health care, home loans and life insurance. The emphasis of this article is the funding available, under the health care category, to pay for AT for qualifying veterans.
Like most funding sources we have discussed in IMPACT, the VA has core eligibility criteria that limits who qualifies for its range of benefits. Like Medicaid for example, the underlying VA program has many complicated requirements that one must satisfy before you even get to the issue of eligibility for AT.
Eligibility for most VA benefits is based on discharge from active military service, under other than dishonorable conditions, after a minimum period of service. Active service generally means service as a member of the Army, Navy, Air Force, Marines, Coast Guard, or as a commissioned officer of the Public Health Service, the Environmental Services Administration or the National Oceanic and Atmospheric Administration. Although all qualifying veterans are eligible for some VA benefits, including the treatment available through VA hospitals, a wider range of services are available to those who qualify for cash benefits under the VA pension and compensation programs.
The core eligibility issues will present more of a challenge, in many cases, than the subsequent issue of whether the qualifying veteran is entitled to a particular item of AT. For example, one set of rules applies to persons who have a service-connected disability and a tougher set of rules applies if the disability is not service-connected. A veteran who has served during "wartime" (for example, during the 1964 through 1975 period defined for Vietnam era veterans), will have a more liberal set of rules to follow than the veteran who served during peacetime.
Many veterans will face a challenge in establishing disability or the severity of disability (graded up to 100%). Others will face the challenge of showing that the disability was service connected. Still others may need to convince the VA that the disability is not the result of the veteran's willful misconduct. With any of these issues, it is possible that the veteran will have to pursue an appeal to establish the right to VA benefits.
These and other core VA eligibility issues are beyond the scope of this article and will not be discussed further. Those who wish more information concerning these issues are directed to the law and regulations or the many reference materials put out by the VA and various advocacy and service organizations.
We recommend that a veteran consult with one of the Veterans' Service Organizations if they expect a challenge in establishing VA eligibility. Many of these agencies will help the veteran with the application itself and continue to work with the person if VA benefits are denied and an appeal is pursued. If the issue faced by the veteran relates to core eligibility, we recommend contacting one of the Veterans' Service Organizations. If the issue faced concerns eligibility for AT specifically, it is appropriate to contact the AT Advocacy Project.
AT AS A MEDICAL SERVICE FOR QUALIFIED VETERANS
The VA provides a very wide range of services under its "Prosthetic and Similar Appliances" category. The VA also uses the term "adaptive technology" for modifications made to cars and vans. In this article, we will use the term assistive technology (AT) to cover prosthetics, similar appliances and adaptive technology.he amount of AT devices and services available to qualifying veterans, through the VA, is in many cases more extensive than available to a person through any other funding source. Also, it would appear that the VA is more willing than many funding sources to provide the device or service upon a showing that the veteran can benefit from it.
The personal situation of one veteran we spoke with recently is illustrative. Chuck is in his 50s and has multiple sclerosis, a non service-connected disability that has left him unable to meet most of his needs, dependent on the use of a wheelchair and legally blind. During the last several years, the VA has provided the following AT devices without any charge to the veteran: a $20,000 custom made electric wheelchair; a special mattress, using air-exchange technology to reduce the incidence of decubitus ulcers; a Hoyer lift; a voice enhancer for his telephone; a lift on the outside of his home to allow for exit and entry; and an environmental control unit, which allows him to use the phone and operate other electronic devices within his home environment.
As good as this all sounds, we must caution the reader that the availability of AT will vary greatly from veteran to veteran based on a number of individual factors. These factors include: the type of disability (special provisions are in place, for example, for the blind and the deaf veteran); the severity of the disability; the distinction between wartime and peacetime service; and the distinction between service-connected versus non service-connected disabilities.
Like the VA's core eligibility criteria referenced above, a thorough discussion of all the standards for obtaining AT is beyond the scope of this article. We will, however, describe some significant provisions governing AT and provide illustrations of how eligibility for AT will be determined. If the reader wants to determine a specific veteran's eligibility for AT, you need to look to the person's individual circumstances. In many cases, the Prosthetic Representative who works for the VA Medical Center will help ensure that the person gets all the AT to which he or she is entitled. In other cases, you may want to dig more deeply in the law and regulations or consult with a Veterans' Service Organization or other advocacy agency.
SPECIFIC ITEMS OF AT AVAILABLE
I. Prosthetic Services, In General
The definition of "prosthetic and similar appliances" includes: artificial limbs, braces, orthopedic shoes, hearing aids, wheelchairs, medical accessories, similar appliances including invalid lifts and therapeutic and rehabilitative devices, and special clothing made necessary by the wearing of such appliances. Where feasible and medically necessary, the VA will purchase, make or repair the item in question as part of outpatient care or when the veteran is receiving hospital, domiciliary or nursing home care in a VA facility.
II. Specific Devices1
Invalid Lifts
For a veteran who has lost or lost use of both lower extremities and at least one upper extremity
Veteran must be incapable of moving from the bed to a wheelchair or from a wheelchair to the bed
Devices to Overcome Deafness
For profoundly deaf veteran (rated 80% or more disabled and entitled to compensation)
Will provide devices to assist veteran overcome the handicap of deafness
Includes telecaptioning television decoders
Guide Dogs and Equipment for the Blind
For blind veterans entitled to compensation for a service-connected disability
Will be furnished trained guide dog and expenses related to travel, lodging and meals at site where veteran receives training to use dog
Can obtain mechanical and/or electronic communication equipment necessary to overcome blindness
Automobile Adaptive Equipment
For veterans entitled to compensation for loss or lost use of one or both feet, or for certain knee or hip disabilities
VA will pay for the adaptive equipment and its repair, replacement or reinstallation as necessary
Payment is authorized for a wide range of adaptations regardless of whether the veteran will drive or be a passenger
III. Clothing Allowance2
A veteran with a service-connected disability, or a disability compensable as if it were service-connected, is eligible for a $491 annual clothing allowance when the veteran uses certain devices, including wheelchairs, that wear and tear clothing.
IV. Home Improvements and Structural Alterations (HISA)3
HISA helps pay for home improvements to provide access to and within the home, subject to the following limitations:
Payment up to $4,100 for a veteran with a service-connected disability or a non-service connected disability rated at 50 % or more
Payment up to $1,200 to other veterans eligible for outpatient care
Can be used, for example, to widen doorways, lower kitchen counter tops and build ramps
A one-time benefit; once veteran has used the maximum amount, not eligible for another HISA grant.
V. AT As a Part of Vocational Rehabilitation4
The VA provides a wide range of services to allow veterans with service-connected disabilities to overcome an employment handicap. A veteran who is involved in a rehabilitation plan will qualify for all the prosthetic and adaptive devices already discussed and in addition may receive:
Eyeglasses and other corrective or assistive devices
Services to the veteran's family as necessary for effective rehabilitation
Orientation, adjustment, mobility and related services
Telecommunications, sensory and other technical aids and devices
The veteran is eligible for these services during evaluation periods, to the point of employability, and in connection with independent living or employment services.
THE RIGHT TO APPEAL A VA DECISION
Veterans have the right to appeal decisions made by a VA Regional Office or Medical Center. A claimant has one year from the date of a VA decision to file an appeal.
The first step in the appeal process is for the claimant to file a written Notice of Disagreement (NOD) with the nearest Regional Office or Medical Center. Following receipt of the NOD, the VA will furnish the claimant a Statement of the Case (SOC), a written summary of why the AT device or services were denied. There are no regulations stating a time within which the VA must provide the SOC.
After reviewing the SOC, if the veteran still disagrees with the determination he can submit additional information and/or ask for a hearing at the Regional Office. At this hearing, the veteran can submit more evidence, explain why he believes the VA is wrong or both.5
If the veteran feels frustrated by his efforts to resolve his problem at the Regional Office, he may request a Substantive Appeal before the Board of Veterans Appeals (BVA). A request for a Substantive Appeal must be made within 60 days from the date of the SOC or one year from the date of the original VA denial, whichever is later. At the BVA Substantive Appeal, the veteran may present new documentary evidence and witnesses. 6
Veterans who lose at the BVA can appeal the decision before the U.S. Court of Veteran Appeals. A Notice of Appeal must be filed within 120 days of a BVA decision. As in all court appeals, the appellant should be represented by an attorney.
CONCLUSION
A large problem facing veterans and their advocates is ignorance -- ignorance of how the VA operates, what AT is available, what laws and regulations apply and what to do when a claim for AT is denied. Armed with the information in this article, we hope more advocates will consider the VA as a funding source for their clients or consumers who need AT. If you know a veteran that might benefit from this article, share it with them. Also, let them know that they can contact their local VA Medical Centers, the various Veterans' Service Organizations or the AT Advocacy Project for further information and assistance.
LAW & REGULATIONS GOVERNING VA ACTIONS
Law: Title 38, U.S. Code
Regulations: Title 38, Code of Federal Regulations
NOTES:
_______________________________
1.38 C.F.R. §§ 17.150-.156.
2.38 C.F.R. § 3.810.
3.38 U.S.C. § 1717
4.38 U.S.C. Chapter 31; 38 C.F.R. § 21.240.
5.38 U.S.C. § 5104; 38 C.F.R. § 3.103
6.38 U.S.C. Chapter 71; 38 C.F.R. §§ 19 et seq.
VETERANS' SERVICE ORGANIZATIONS
These national service organizations may be available in your region for free representation before the VA Regional Office or the Board of Veterans' Appeals:
· American Legion
· AmVets
· Catholic War Veterans
· Disabled American Veterans
· Jewish War Veterans
· Military Order of the Purple Heart
· Paralyzed Veterans of America
· Veterans of Foreign Wars
· Vietnam Veterans of America
Generally, these organizations, which are independent of the VA, will have offices in the VA's regional offices. To contact a service officer with one of these organizations, look in the phone book under U.S. Government, Department of Veterans Affairs or under the name of the organization.
GUIDEBOOKS AND OTHER REFERENCES
FOR THE VA ADVOCATE
Federal Benefits for Veterans and Dependents (Department of Veterans Affairs, 1996 Edition): For sale by the U.S. Government Printing Office; also available on the Internet on the VA World Wide Web Home Page at http://www.va.gov/
K. Snyder, Paralegal's Guide to Veterans' Administration Advocacy, 23 Clearinghouse Rev. 236 (July 1989).
The National Veterans Legal Services Program (NVLSP) has produced a number of self-help guides for veterans. Among these guides, AT advocates should consider the Self-Help Guide on VA Claims and the Self-Help Guide on VA Health Care. To obtain these guides, contact the NVLSP at 2001 S Street, N.W., Suite 610, Washington, DC 20009, 202-265-8305.
ACKNOWLEDGMENTS
We wish to thank Dennis Kessel, Prosthetic Representative at Buffalo's VA Medical Center and Anthony Szczygiel, Clinical Professor at Buffalo Law School for their contributions to this issue.
Administrative Hearings
Matter of J.B. (FH# 2429214Y): JB, age 29, resides alone in the community and has a diagnosis of cerebral palsy. He can ambulate for very short distances, but only with an unsteady, unsafe gait. He cannot self-propel a manual wheelchair. In May 1995, Medicaid funded a Guardian Grand Tour walker to allow JB to travel short distances.
In February 1996, JB's doctor requested Medicaid prior approval for a Quickie P200, power wheelchair with accessories. The Department of Health (DOH) denied the request, stating that JB was provided a walker to meet his ambulation needs after the breakdown of his scooter. However, as reported to DOH, the doctor stated that JB could not safely use a walker. JB approached exhaustion every time he used the walker and began to lose weight, dropping from 132 to 120 pounds. He was so exhausted he could not eat. While using the walker he suffered falls and developed severe knee pain. His physical therapist testified that she observed JB using the walker and he could not do so safely even when healthy.
The AT Advocacy Project represented JB at a fair hearing. Following the hearing, a hearing decision was issued ordering approval of the power wheelchair. Since the nature of the testimony and the evidence offered at the hearing was provided to DOH by JB's counsel several days before the hearing, the hearing decision directed that the wheelchair be approved rather than remanding the case for further review by DOH.
For copies of this decision, contact the AT Advocacy Project. Identify the hearing as J.B., FH# 2429214Y, decision date July 2, 1996.
Matter of Michael B. (FH# 2456079R): Michael B., age 49, suffers from progressive multiple sclerosis. He is quadriplegic and can move only his head. He must be turned at least every two hours around the clock, if not more often, to prevent skin breakdown. Michael's wife has been responsible for turning him, but due to the increased strain on her back, she cannot keep up this regimen. Michael's doctor requested Medicaid prior approval for a DFS mattress system -- a computer controlled, automatic weight shifting mattress, costing $4700. His request was denied.
The AT Advocacy Project represented Michael at a fair hearing and presented evidence showing that this system was the least costly alternative available to meet Michael's medical needs. Based on this evidence, a hearing decision was issued directing prior approval of the mattress system.
For copies of this decision, contact the AT Advocacy Project. Identify the hearing as Michael B., FH# 2456079R, August 21, 1996.
AVOIDING MEDICAID FAIR HEARING REMANDS
Advocates who represent individuals at Medicaid fair hearings may have noticed more and more hearing decisions that remand the case back to the Department of Health (DOH) for a new determination. How do we avoid the delay of a remand when all the evidence to justify approval is available at the hearing?
One strategy for preventing remands can be found in 18 N.Y.C.R.R. § 513.8(c). The regulation directs the State Department of Social Services to order a remand for several reasons, the most important being when new and material evidence has been received at the hearing. We have found that presenting all documents to the local DOH's Office of Health Systems Management (OHSM) prior to the hearing and explaining that this is the evidence to be presented at the hearing, removes this evidence from the "new and material" category. We submit our cover letter at the hearing to verify to the Administrative Law Judge (ALJ) that OHSM is in control of the same documents that are being presented at the hearing and that there has not been any offer made to withdraw the notice of denial. This opens the door for the ALJ to make a determination on the evidence presented at the hearing and denies OHSM a second opportunity for a second denial.
NEW YORK'S MOTORIZED WHEELCHAIR LEMON LAW
New York's General Business Law section 670 is commonly known as the Motorized Wheelchair Lemon Law. The law protects persons who purchase or lease a motorized wheelchair that turns out to be a lemon.
The Lemon Law requires that the manufacturer provide the consumer with an express written warranty, covering both parts and labor. The consumer who seeks to enforce the warranty should first attempt to resolve the problem informally, making sure to keep a complete record of any problem and all attempts to remedy the problem through repairs. If the problem is not resolved after reasonable attempts to repair within one year of first delivery, the consumer may choose a full refund or a comparable new replacement wheelchair. If repairs are not successful and the manufacturer refuses to issue a refund or replacement wheelchair, the consumer can either participate in the state-run arbitration program or sue the manufacturer in court.
The law presumes that there have been reasonable attempts to repair if, within the express warranty period but not less than one year from the delivery date, either:
1) The same problem has been subject to repair four or more times, the wheelchair is out of service for at least 30 days and the problem continues to exist; or
2) The wheelchair is out of service due to a warranty-related defect for at least 60 days, after having been returned to the manufacturer, lessor or authorized dealer for repairs, and the problem continues to exist.
The 30 and 60-day periods set forth in the law are aggregate periods. So, for example, if the wheelchair is out of service for 6 separate 10 day periods, the 60-day requirement is met.
The new law does not ensure against all problems a consumer may encounter during the useful life of a motorized wheelchair. However, if enforced it should protect the consumer whose wheelchair continually breaks down during its first year of operation.
Those consumers who are unable to resolve their disputes will generally opt for arbitration which is less complicated, less time consuming and less costly than going to court. To begin the arbitration process, the consumer must complete a "Request for Arbitration" form which may be obtained from any of the Attorney General's regional offices. The arbitration hearing is informal and strict rules of evidence do not apply. The arbitrator's decision is binding on both parties and can only be overturned by a court under very limited circumstances.
If the consumer goes to court and wins, the law directs the court to award the successful plaintiff twice the amount of any monetary loss plus costs and reasonable attorney's fees. Faced with these potential penalties, most wheelchair manufacturers and dealers can be expected to work with consumers to avoid the need for arbitration or litigation.
The State Attorney General's Office has written an excellent pamphlet, New York's Motorized Wheelchair Lemon Law: A Guide for Consumers.
To obtain free copies of this pamphlet, which contains copies of the Lemon Law and the regulations governing arbitration (13 N.Y.C.R.R. §§ 301.1-301.19), write to:
The Office of Public Information
New York State Department of Law
120 Broadway
New York, NY 10271
or contact any regional office of the Attorney General.