BACKGROUND: National Coverage Decision (NCD) 60-9 is a policy issued by the federal Health Care Financing Administration (HCFA). It lists augmentative and alternative communication (AAC) devices as not eligible for coverage under Medicare’s durable medical equipment (DME) category, claiming they are convenience items and not primarily medical in nature. The basis for this guidance is cited as section 1861(n) of the Social Security Act, 42 U.S.C. § 1395x(n). This policy is binding on DME Regional Carriers (DMERCs), health maintenance organizations (HMOs), and other Medicare+Choice (M+C) plan decision makers. It is also binding on other independent reviewers at levels of appeal prior to the administrative law judge (ALJ) hearing. However, only NCDs based on the Medicare “reasonable and necessary” provision, section 1862(a)(1) of the Social Security Act, 42 U.S.C. § 1395y(a)(1), are binding on ALJs, the Departmental Appeal Board or the federal courts. 42 C.F.R. § 405.860. Therefore, Medicare reimbursement can be (and has been) obtained for AAC devices if (and when) claims are appealed to a Medicare ALJ. Although this policy does not address the prosthetic category, our experience is that Medicare decision makers prior to the ALJ level have treated the NCD as a bar to AAC device coverage. The following article, written by Lewis Golinker of the Assistive

        On April 26, 2000, the Health Care Financing Administration (HCFA) announced it was withdrawing, effective January 1, 2001, its longstanding Medicare guidance that called AAC devices “convenience items.” Medicare Coverage Issues Manual § 60-9. By taking this step, AAC device reimbursement claims will be able to be considered on their merits at the initial levels of Medicare decision making. By contrast, while this guidance was in effect, the first Medicare decision maker who could review an AAC device claim on the merits was an ALJ.

        This policy change was made in response to a Formal Request for AAC Device National Coverage Decision [text available at www.augcominc.com], submitted to Medicare on December 30, 1999. Six months earlier, in mid-June 1999, Medicare asked the Assistive Technology Law Center to prepare the Formal Request, as part of Medicare’s expressed interest in re-reviewing the “convenience item” guidance. A team of the nation’s most distinguished AAC professionals was then assembled to write this document, which was submitted on behalf of 13 organizations representing every interest related to Medicare coverage of AAC devices: people with disabilities, assessment and treatment professionals, manufacturers and vendors, and advocates. The organizations participating in the Formal Request are identified in Table 1.

        The April 26 policy change announcement is reprinted in Table 2. It consists of five related statements. First, it states that Medicare will be withdrawing its AAC non-coverage decision. Next, it states that AAC devices will be classified by Medicare as “durable medical equipment.” Third, it states that the effective date for the withdrawal of the non-coverage decision will be no later than January 1, 2001. Fourth, it states that Medicare is committed to developing a new national coverage decision for AAC devices, but that the agency is not yet ready to issue new guidance. And fifth, when the withdrawal of the non-coverage decision takes effect, AAC device claims can be decided on their merits by the Medicare DME Regional Carriers and Medicare + Choice providers (managed care organizations or MCO’s), using either case-by-case reviews, or locally-developed coverage criteria.

        The announced withdrawal of the Medicare AAC device non-coverage decision (convenience item guidance) represents a tremendous step forward in the advocacy efforts begun in 1996 to reform Medicare AAC device coverage policy. Even though Medicare describes this announcement as an interim step, i.e., it still plans to develop a new national coverage decision for AAC devices, it is a step that advocates had long sought, and it is a necessary step toward bringing Medicare policy related to AAC coverage into line with the coverage policies and practices of every other health-focused third party funding program.

        It can reasonably be argued that the Medicare AAC device non-coverage decision never should have been issued in the first place, or, that it should have been withdrawn a long time ago.

        In both 1998 and 1999, Freedom of Information Act (FOIA) requests were sent to Medicare asking for documents related to the non-coverage decision, but no records were found. [Letter dated July 8, 1998 to Elizabeth Carder, Esq., from Philip Brown, HCFA Division of Freedom of Information and Policy; Letter dated August 24, 1999 to Lewis Golinker, Esq., from Philip Brown, HCFA Division of Freedom of Information and Policy. (Letters on file at the Assistive Technology Law Center.)] In addition, in response to a related FOIA inquiry in 1999, Medicare revealed that for the national coverage decisions found in Medicare Coverage Issues Manual, § 60-9, which includes the AAC device guidance, no review was conducted of the available medical literature and there was no involvement of a HCFA medical officer. [See response by Grant Bagley, M.D., to Plaintiff’s First Set of Interrogatories, filed in Rhode Island Disability Law Center v. U.S. Department of Health & Human Services, No 98-415T (D.R.I.)[pleadings on file at the National Assistive Technology Advocacy Project and at the Assistive Technology Law Center] Thus, there is no way to tell what was reviewed when the decision initially was written, or, who was involved in the decision. Sadly, Medicare’s admissions confirm that it did not take even the minimally reasonable steps to learn about AAC devices before it issued this decision.

        At the time this guidance was issued, estimated to be 1987, extensive medical and professional literature already existed about AAC interventions. The Food and Drug Administration had recognized AAC devices as “medical devices,” and classified them as “physical medicine prosthetic devices,” the same category used for power wheelchairs.¹ The FDA’s recognition that AAC devices are “intended for medical purposes,” is directly contrary to the Medicare AAC non-coverage decision which asserts they are not “medical in nature.” Medicare never made any attempt to reconcile this difference in opinion about AAC devices. And, the Veterans Administration, numerous Medicaid programs and hundreds of insurers were covering and providing AAC devices.²

        In addition, at least 2 AAC devices were approved for Medicare beneficiaries in the years prior to issuance of the non-coverage decision [documents on file at the AT Law Center], and in the 13-year period since the non-coverage decision was issued, every Medicare administrative law judge that has reviewed an AAC device appeal, has approved the requested device [documents on file at the National AT Advocacy Project and at the AT Law Center]. Also, this Medicare guidance remained unchanged despite the continued expansion of Medicaid program coverage of AAC devices to the point, today, where every state that has been asked to cover and provide these devices, does so.³ Medicare’s assertion that AAC devices are a “convenience” also flies in the face of prominent individuals, such as Bob Williams, a Deputy Assistant Secretary of the Department of Health & Human Services, and of Stephen Hawking, the world-renowned physicist, who each use AAC devices to speak.

        Whether viewed singly or as a whole, these factors all support the elimination of the non-coverage guidance.

        The April 26 decision states that HCFA is still interested in developing national coverage guidance for AAC devices but that more information is needed to complete that process. The AT Law Center and the AAC professionals who prepared the Formal Request believe all the information HCFA needs to issue new national coverage guidance already has been submitted in the text, appendices and the more than 200 professional literature references cited in the Formal Request, and in the supplemental information that has been filed, including the findings of peer reviews of reviews guidance Deputy Assistant Secretary of the Department of Health & Human Services, and of Stephen Hawking, the world-renowned physicist who each use AAC devices to speak.

        The April 26 decision states that HCFA is still interested in developing national coverage guidance for AAC devices but that more information is needed to complete that process. The AT Law Center and the AAC professionals who prepared the Formal Request believe all the information HCFA needs to issue new national coverage guidance already has been submitted in the text, appendices and the more than 200 professional literature references cited in the Formal Request, and in the supplemental information that has been filed, including the findings of peer reviews of the Formal Request conducted by the American Medical Association, American Academy of Neurology, and American Academy of Physical Medicine and Rehabilitation [letters on file at the National ATAdvocacy Project and at the AT Law Center]. In addition, more than two dozen neurologists and other physicians wrote individually in support of the Formal Request, which included proposed coverage criteria for AAC devices.

        Additional meetings with HCFA administrators are being scheduled to determine what, if anything, still must be submitted before new national coverage guidance can be issued, and to identify the operational details that will have to be completed before new guidance or even the withdrawal of the existing guidance can take effect.

        It is too soon to provide much in the way of definitive information about what the April 26 decision means, except to note the obvious: HCFA has concluded that it will remove clearly detrimental guidance related to Medicare coverage of AAC devices. Also, because the change is not effective until January 1, 2001, there will be no immediate effect on claims currently pending at decision making levels below the ALJ, but it is reasonable to predict that the decision will make any hearings before ALJs easier to win. Currently, there are approximately a dozen such cases awaiting ALJ hearings or decisions.

        It also is too soon to provide guidance to Medicare beneficiaries or speech-language pathologists explaining how the April 26 decision will affect claims that will be pending at any decision making level below the ALJ on January 1, 2001. Medicare beneficiaries, service providers, and advocates will all argue that the withdrawal of the non-coverage decision should be applicable to all claims pending on or lawfully filed after the effective date. Following this interpretation, when the non-coverage decision is withdrawn, any Medicare decision maker will have the discretion to review the merits of the AAC device claim and to approve it at that point in the decision making or appeal process. This scenario recognizes Medicare beneficiaries’ interests in getting AAC devices as soon as is possible so that they can begin to reap the benefits they provide.

        On the other hand, it is possible that HCFA will adopt an interpretation that makes the withdrawal of the non-coverage decision applicable only to claims whose “date of service,” i.e., the date the device is purchased, is after January 1, 2001. Under this interpretation, for any existing claims on the effective date, the old policy will continue to apply, thus forcing existing claims to ALJ decisions, but more importantly, deterring individuals from getting devices and filing of claims in the eight months between the announcement date and the effective date of the policy change. This is not consistent with the interests of beneficiaries.

        The meetings with senior HCFA officials that will be raising these and other issues that are essential to bringing the national coverage decision process to a conclusion and to making the April 26 decision operational. Additional information about the resolution of issues will be posted at the National Assistive Technology Advocacy Project web-site, www.nls.org.

American Speech-Language-Hearing Association
Amyotrophic Lateral Sclerosis Society
Brain Injury Association
Center on Disability and Health
Communication Aid Manufacturers Association
Communication Independence for the Neurologically Impaired
International Society for Augmentative and Alternative Communication
National Association of Protection and Advocacy Systems
National Multiple Sclerosis Society
Rehabilitation Engineering Society of North American (RESNA)
Sunrise Medical
United Cerebral Palsy Associations
United States Society for Augmentative and Alternative Communication

www.medicare.gov  - The federal Health Care Financing Administration’s (HCFA) Medicare site.

www.hcfa.gov/pubforms/program.htm   - This site provides access to HCFA’s Medicare (and Medicaid) manuals, transmittals and program memos.

www.hcfa.gov/regs/rulings.htm - Contains HCFA rulings involving both Medicare and Medicaid.

www.nls.org/caidcare.htm   - The National AT Advocacy Project’s “Medicaid-Medicare” site, with links to the HCFA sites referenced above.

www.healthlaw.org  - The National Health Law Program’s site, with a wealth of material on Medicare and Medicaid.

www.nsclc.org  - The National Senior Citizens Law Center’s site, which also contains a wealth of Medicare-related material.

2000 Medicare Premiums and Deductibles

Deductible

• $776.00 (Per Benefit Period)

Coinsurance

• $194.00 a day for the 61st - 90th day each benefit period
• $388.00 a day for the 91st - 150th day for each lifetime reserve day (total of 60 lifetime reserve days - non-renewable).

Premium

• $301.00 per month (Note: This premium is paid only by individuals who are not otherwise eligible for premium-free hospital insurance.)
• $331.10 must be paid by those who must pay a premium surcharge for late enrollment.
• In addition, there is a Part A premium of $166.00 for those individuals having 30 or more Quarters of Coverage. These individuals must pay a premium plus surcharge total of $182.60 for late enrollment.

Skilled Nursing Facility Coinsurance

• $97.00 a day for the 21st - 100th day each benefit period.

Part B: (Medical Insurance)

• Deductible = $100.00 per year
• Premium = $45.50 per month

Review Issues

Augmentative and Alternative Communication Devices
(#CAG-00055)
Decision Memorandum
April 26, 2000

        This means that, when this change has taken effect, carriers, as required under Section 1862(a)(1)(A), will make coverage decisions for claims for any AAC devices on either a case-by-case basis or through a local policy. We expect to be able to issue a national coverage decision with detailed coverage guidelines after review of the additional information we are hereby requesting. Until we are able to develop a national policy, local discretion prevails.

Booklets: MEDICARE, MANAGED CARE AND AAC DEVICES: Obtaining an AAC\Device through Medicare; The Decision Making and Appeals Process for HMO and Other Medicare+Choice Participants (December 1999); Medicare & AAC Devices for Non-HMO Participants (April 1999)

Newsletters: “Medicare and Managed Care: the Application and Appeals Process,” IMPACT (our state newsletter) (Winter 2000); “Medicare: a New Priority for at Advocates?”, AT ADVOCATE (June-July 1997)

Hearing Decisions: We now have more than 25 administrative law judge decisions involving Medicare, approving a wide range of assistive technology devices, including: AAC devices (seven decisions), a custom manual wheelchair, a motorized scooter, a baclofen pump, a closed circuit television (CCTV) magnification system, a stairlift, a continuous positive airways pressure (CPAP) sleep monitoring machine, and a seat lift chair. In some cases, we also have the briefs or written arguments filed by the advocates.

Conference Handouts: Several handouts are available from our 1999 and 2000 annual conferences.

NOTE: The booklets, newsletters and several of our conference handouts are available on our website (www.nls.org/ natmain.htm).

        If you expect to use our website often (we hope you do), you should set your bookmark to www.nls.org - the home page of Neighborhood Legal Services, Inc. (NLS), our parent organization. You could also set the bookmark to www.nls.org/natmain.htm, the home page of the National AT Advocacy Project. We recommend the former, nls.org, as your bookmark as it allows you to check our “What’s New” and a variety of other sites that may also relate to your work.

        What will you find on our AT Project’s sites? You will find all of our AT Advocate newsletters dating back to 1996; the six booklets in our “Funding of AT” series; articles written for other publications; our AT Resource Library Digest (abstracts of hearing decisions); special sections for special education, Medicaid-Medicare, vocational rehabilitation, and SSI work incentives; and separate pages with links to disability organizations and legal research sources. What useful information will you find on the remainder of the NLS website? For starters you will find our New York State AT Advocacy Project’s sites. New York readers will find state regulations, 18 N.Y.C.R.R., which include both welfare and Medicaid regulations. You might also want to check out the Project Dandelion sites, containing a wealth of information on welfare-to-work issues - a growing area of interest among disability advocates.

        Is it easy to find what you are looking for on our website? We hope so. We have worked hard to organize and re-organize our layouts. It should be easier to get around the site than it was a year ago and we plan to keep improving. However, unless you are a frequent visitor, you may not have totally figured out the best way to find things.

        An alternative to a search using the menus or indexes is to use the “Search NLS Website” tool. Here is an example of how it might work. You want to see if we have any information or links to information about the 1999 decision of the United States Supreme Court, Olmstead v. L.C., a decision involving the community integration mandates of the Americans with Disabilities Act (ADA). You search using the terms “Olmstead v. L.C.” You get nothing. This is because, unlike some other search engines, this search engine has rejected the “v” and “L.C.” as non words. You now search using the term “olmstead” (you need not capitalize). You now are provided with a link to “Supreme Court ADA/504 Cases.” Clicking on it with your mouse, you now find a listing containing a link to the actual Olmstead decision using Findlaw. This same search has also provided you with a link to a 2000 conference handout prepared by Tim Sindelar of Massachusetts, dealing with Olmstead and the ADA’s integration mandate.

        Many important court cases or decisions are identified by initials or by a first name and last initial to maintain confidentiality. Similar to the L.C. problem above, a search for Garret F. or Fred C. will yield nothing. Try searching only using “Garret” and you find a list containing the article, “Tatro to Detsel to Garret F.: A Personal Reflection on the Evolution of the IDEA School Health Services Provisions,” by Lew Golinker. Try searching under “Fred” and you find a list containing a link to briefs filed in the Fred C. case in the Seventh Circuit Court of Appeals. The list contains several other links to documents mentioning the case. Luckily, there are not a lot of other documents on our website with references to men named Fred.

        Given that word searches are literal what if you don’t know how to spell Olmstead? If you search under the misspelling, “Olmsted,” you get one irrelevant document containing an address in North Olmsted, Ohio. You can experiment with spellings or variations on the same word root. Or, you can use the asterisk as a “wild card” for missing letters at the end of a word. Now, you try searching under “Olmst*” and get the exact same results you did above.

       We have designed a word-searchable digest, using computer technology, to store and retrieve hearing decisions and other administrative documents. We also have indexed more than 400 documents from more than 100 pending and decided court cases. All documents are available through our AT Resource Library. Please send us your hearing decisions, briefs and other documents involving AT.

Please send information to:                           TEL: (716) 847-0650
Attn.: Diane Dustin                                             FAX: (716) 847-0227                         e-mail: atproject@nls.org
Neighborhood Legal Services, Inc.                    TDD: (716) 847-1322
Ellicott Square Building                                     Web Page: www.nls.org
295 Main Street, Rm 495
Buffalo, NY 14203

NLS Home Page| Feedback