AT ADVOCATE
Newsletter of the National
Assistive Technology Advocacy Project
A Project of Neighborhood Legal Services, Inc.
295 Main Street, Ste. 495 · Buffalo, New York 14203 · (716) 847-0650
(716) 847-0227 FAX · (716) 847-1322 TDD · e-mail: nls01@sprynet.com · Web Page:
http://www.nls.org
Supported by the National Institute on Disability and Rehabilitation Research,
U.S. Department of Education, Through a Subcontract with United Cerebral Palsy
Associations.
Volume II Issue 4 June/July 1997
MEDICARE: A NEW PRIORITY
FOR
ASSISTIVE TECHNOLOGY ADVOCATES
Copyright 1997, Neighborhood Legal Services, Inc.
INTRODUCTION
Although Medicare covers 14 percent of the U.S. population, assistive technology (AT) advocates have all but ignored this funding source for items like wheelchairs and augmentative communication devices. Despite 1994 Medicare enrollment of 37 million, most Protection and Advocacy (P&A), Legal Services and Legal Aid offices have not handled Medicare appeals.
One advocate referred to Medicare as the "last frontier" for AT advocacy, suggesting that P&A programs target Medicare as a priority. We concur. During the next year, the AT Advocate will devote considerable space to Medicare with the hope that our readers will become more active in advocating for Medicare-funded AT.
This article presents an overview of Medicare as an AT funding source. We discuss: what Medicare is; who is eligible; Part A and Part B benefits; the availability of AT through the durable medical equipment, prosthetic and orthotic device categories; the approval process for AT; Medicare funding of augmentative communication devices; and Medicare appeals. Although this article provides advocates with a good summary of Medicare, we have provided a list of other resources for your reading. (See box, p. 67).
WHAT IS MEDICARE?
Medicare is a federal health insurance program for persons over 65 and persons with disabilities. Social Security Act, Title 18, 42 U.S.C. §§ 1395 et seq.; 42 C.F.R. Parts 405-424. Medicare Part A, known as Hospital Insurance, covers inpatient care, skilled nursing facility care, hospice care, home health services, and durable medical equipment. Medicare Part B, known as Supplemental Medical Insurance, covers various outpatient services, including physician services, durable medical equipment, prosthetic devices, orthotic devices and home health services.
Premiums, Deductibles and Co-Payments
Part A coverage is generally automatic and not subject to a premium payment. Part B is optional and requires premium payment. For those required to pay a Part A premium [See 42 U.S.C. § 1395i-2(d)], the 1997 premium is $311 per month. The 1997 Part B premium is $43.80 per month. State Medicaid programs may pay these premiums for low-income individuals. Most voluntary enrollment of this type happens through the buy-in program for Qualified Medicare Beneficiaries (QMB). The QMB program allows state Medicaid programs to pay the Part A and B premiums to enroll low-income individuals. 42 U.S.C. §§ 1395i-2(g), 1396d(p)(1).
Deductibles and co-payments apply to some covered services. 42 U.S.C. § 1395e. Each Fall, the federal Health Care Financing Administration (HCFA) announces the Part A hospital deductible for a spell of illness beginning in the following calendar year. See 61 Fed.Reg. 55002 (October 23, 1996) setting the 1997 inpatient hospital deductible at $760. Part B generally requires a copayment of 20 percent of Medicare-determined reasonable charges, after an annual $100 deductible.
Medicare and Managed Care
Some Medicare beneficiaries are enrolled with managed care organizations (MCOs). The enrollee may be required to pay an additional premium to the MCO for what amounts to Medicare and a back-up policy rolled into one. As of 1996, 10 percent of Medicare enrollees are under managed care contracts.
MEDICARE ELIGIBILITY
Who is Eligible?
Medicare is almost universal for U.S. residents age 65 and older. Persons eligible for Social Security or Railroad Retirement benefits automatically qualify for Part A benefits and qualify for Part B, at their option, by paying a monthly premium. Persons age 65 or older, who do not automatically qualify for Part A, may enroll by paying the Part A premium. States and public organizations may purchase Part A, on a group basis, for retired or current employees who are 65 or older.
Medicare also covers individuals under age 65
who:
Medicare automatically enrolls individuals age 65 or older when they qualify for Social Security or Railroad Retirement benefits, as well as younger individuals after receipt of 24 months of SSDI or Railroad Disability benefits. 42 C.F.R. § 406.6(b). All others must file an application. 42 C.F.R. § 406.6(c).
Medicare Has No Income or Resource Rules
Medicare has no income or resource eligibility test. However, many Medicare recipients live in poverty and qualify for the services of Legal Services and Legal Aid offices that must follow income guidelines. Those low-income Medicare recipients are just as needy and unable to privately finance AT as the Medicaid recipients that these offices have traditionally assisted. P&A offices are not required to limit their services to persons with low income, however, meaning that they can represent all Medicare recipients with disabilities who seek Medicare-funded AT.
What Happens to Medicare When An SSDI Recipient Works?
An SSDI recipient who works can receive a benefit check throughout a nine-month trial work period and, in some cases, throughout a subsequent 36-month extended period of eligibility (EPE). If he or she performs substantial gainful activity by earning more than $500 monthly (or $1,000 monthly if legally blind) after the EPE, the right to a benefit check will end. 20 C.F.R. §§ 404.1574, 404.1592, 404.1592a.
Medicare eligibility continues throughout the trial work period and EPE. Thereafter, if the person earns less than $500 monthly and SSDI benefits continue, Medicare benefits will likewise continue under normal rules. If SSDI benefits are terminated after the 36-month EPE, because the person is working and earning more than $500 per month, Medicare benefits will automatically continue for three more months. 42 U.S.C. § 426(b). Thereafter, the person can continue Medicare eligibility by paying a special premium. 42 U.S.C. § 1395i-2a. [For more information on this topic, see James R. Sheldon, Jr., Work Incentives for Persons with Disabilities Under the Social Security and SSI Programs, 28 Clearinghouse Rev. 236 (July 1994); BENEFITS MANAGEMENT FOR WORKING PEOPLE WITH DISABILITIES: AN ADVOCATE'S MANUAL (Greater Upstate Law Project, annual publication), Chap. 3 (order forms available through AT Advocacy Project).]
WHAT IS COVERED?
WHAT IS EXCLUDED?
Statutory Exclusions
The Medicare law specifically excludes major categories of services, including most prescriptions, routine doctor visits, most foot care, dental care, eye examinations and eye glasses, hearing aids and examinations, cosmetic surgery, and some vaccines. See 42 U.S.C. §§ 1395y(a)(7), (8), (10), (12) and (13).
Medicare's Medical Necessity Test
Medicare coverage is limited to services that are "reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member." 42 U.S.C. § 1395y(a)(1)(A). The quoted language is the basis for Medicare's so-called "medical necessity" test.
National Coverage Decisions
HCFA, the agency which administers Medicare, periodically issues National Coverage Decisions (NCDs) which specify treatments and procedures that are approved or excluded by Medicare. See Medicare Coverage Issues Manual (HCFA-Pub. 6), published at 54 FR 34555 (Aug. 1, 1989) and reprinted as updated in 5 CCH Medicare & Medicaid Guide, ¶27,201, ¶27,211 and ¶27,221.
The Coverage Issues Manual is broken down into sections. For example, section 60 addresses durable medical equipment (DME); section 65 addresses prosthetic devices. Some NCDs allow for coverage of specific items [e.g., a power wheelchair is covered under § 60-5 if it is medically necessary and the person cannot operate a manual wheelchair; a transcutaneous electrical nerve stimulator (TENS) is covered under § 65-8]. Other rules specifically exclude coverage [e.g., a white cane for the blind is excluded under § 60-3; coverage of an augmentative communication device is excluded under § 60-9 (see discussion, pp.69-71 below)]. NCDs will be referenced by Medicare decision makers when they approve or deny coverage. [A more detailed discussion of NCDs is contained in a seven-page memo prepared by Tony Szczygiel, a Buffalo Law School professor, in May 1997 and is available through the AT Advocacy Project.]
Coverage of AT Under Medicare
Medicare does not use the term assistive technology (AT). Items we think of as AT fall under one or more Medicare categories such as durable medical equipment (DME), prosthetic devices or orthotics. All three categories are included under Medicare Part B. Although Part A covers DME, most AT advocacy to date involves Part B.
DME includes, among other things, "iron lungs, oxygen tents, hospital beds and wheelchairs ... used in the patient's home ..." 42 U.S.C. § 1395x(n). The regulations define DME as equipment that (1) can withstand repeated use; (2) is primarily and customarily used to serve a medical purpose; (3) generally is not useful to an individual in the absence of an illness or injury; and (4) is appropriate for use in the home. 42 C.F.R. §§ 410.38(a), 414.202.
Prosthetic devices are devices "that replace all or part of an internal body organ." 42 U.S.C. § 1395x(s)(8); 42 C.F.R. § 410.36(a)(2). The Medicare Carriers Manual, at § 2130, expands on this definition to include devices that "replace all or part of the function of a permanently inoperative or malfunctioning external body member or internal body organ." See CCH Medicare & Medicaid Guide ¶3152. It is important to note the inclusion of the term "function" in the expanded definition. Many devices may not technically replace an internal organ, but may qualify as a prosthesis if they replace the functioning of the organ.
Orthotics include leg, arm, back and neck braces. 42 U.S.C. § 1395x(s)(9); see also 42 C.F.R. §§ 410.36(a)(3), 414.202. A related regulation, listing comprehensive outpatient rehabilitation facility services, defines "orthotic device services" to include "orthopaedic devices that support or align movable parts of the body, prevent or correct deformities, or improve functioning." 42 C.F.R. § 410.100(g). The Medicare Carrier's Manual, at § 2133 [See CCH Medicare & Medicaid Guide ¶ 3156, further explains that a brace is "a rigid or semirigid device which is used for the purpose of supporting a weak or deformed body member or restricting or eliminating motion in a diseased or injured part of the body."
Suggested Sequence for Analyzing AT Case Under Medicare
To determine your client's potential
eligibility for Medicare-funded AT, we suggest the following sequence of analysis:
PROCESSING MEDICARE CLAIMS FOR AT
Unlike Medicaid, there is no Medicare prior-approval process. With Medicare, the application process starts when the individual or patient takes delivery of the item. Thereafter, the vendor submits a claim for payment to the insurance carrier: in the Part A context the carrier is known as a Fiscal Intermediary; in the Part B context, it is known as a Durable Medical Equipment Regional Carrier (DMERC). [Information about the four regional DMERCs is found below.] This discussion will emphasize the process involving Part B claims.
In order for the claim to move forward, the vendor must deliver the item and either: 1) "accept assignment" and agree to take whatever rate Medicare approves; or 2) not accept assignment and bill the patient or some other payor. The other payor might be Medicaid or some other form of third party insurance. Vendors will typically accept assignment for items which are routinely approved by the DMERC, like hospital beds. Vendors are more reluctant to accept assignment if the item is one for which an adverse NCD exists, such as NCD 60-9, precluding coverage of augmentative communication devices under the DME category. If the vendor accepts assignment and the DMERC denies the claim, the vendor will not get paid. If the vendor refuses to accept assignment and no other payment is available, no claim goes to the DMERC and no Medicare decision is ever issued. [Our next issue of AT Advocate will explore how individuals may be able to obtain a "prior-approval" Medicare decision if they are enrolled in managed care.]
MEDICARE FUNDING OF AUGMENTATIVE COMMUNICATION DEVICES
Legal Basis for Funding
Augmentative communication devices (ACDs), also referred to as Augmentative and Alternative Communication (AAC) devices, have been funded, following hearing decisions (see below), under two Medicare categories -- durable medical equipment and prosthetic devices. One can also argue for coverage under the speech-language pathology services category, which does not specify that equipment is covered within the category. See 42 C.F.R. § 410.62.
Three ALJ Decisions Have Approved Funding
In Matter of Emlyn J. (California 8/93), the administrative law judge (ALJ) awarded Part B benefits for a computer and supplies to allow this 70 year old stroke victim to communicate orally. The ALJ determined that the computer met the definition of prosthetic device, as it "has essentially replaced ... the malfunctioning part of his body (brain) that caused significant communication limitations." ALJ Decis., pp. 4-5. See 42 U.S.C. § 1395x(s)(8); Medicare Carriers Manual § 2130. Although he did not need to reach the issue, the ALJ affirmed the prior decision finding that the computer and supplies are not DME because the computer is not primarily and customarily used to serve a medical purpose, and is useful in the absence of injury.
In Matter of Blanche B. (New York 5/95), the ALJ awarded Part B benefits for a Real Voice laptop talking computer. The ALJ determined that the device met the definition of DME. See 42 U.S.C. § 1395x(n); 42 C.F.R. § 410.38. The ALJ also determined that National Coverage Decision (NCD) 60-9 was not binding on him and, therefore, did not preclude the determination that the Real Voice meets the DME definition. [NCD 60-9 lists Augmentative Communication Device and Communicator as items not eligible for DME coverage because they are not primarily medical in nature.] The ALJ pointed out that only NCDs which are promulgated under section 1862(a)(1) of the Act [42 U.S.C. § 1395y(a)(1)] and published in the Federal Register, are binding on ALJs. NCD 60-9 was not so promulgated. ALJ Decis., p.7. See 62 Fed. Reg. 25844 - 25855 (May 12, 1997), amending the regulations govening the Medicare appeal process and effective June 11, 1997. [The next issue of AT Advocate will summarize the effect of these regulations.]
In Matter of Richard (Idaho 5/97), P&A attorney, Mary Jo Butler, of Co-Ad, Inc. represented this 69 year old stroke victim. The ALJ awarded Part B benefits for a Canon Communicator, finding that the device met the definitions of DME and prosthetic equipment. The ALJ found that the device met the four-part definition of DME and did not discuss or reference NCD 60-9. The ALJ did not specifically analyze the definition of prosthetic device. [All three ALJ decisions are available through the AT Resource Library.]
Why Only Three ALJ Decisions?
The Barriers to Funding
Medicare has no prior-approval system for persons seeking AT devices. In the three hearing decisions cited above, the individual obtained the device and then appealed when the DMERC denied approval. In Blanche B., the device was furnished to the person in June 1991 (i.e., the vendor "accepted assignment") and the ALJ issued his decision in May 1995. Since we can expect all of these cases to be denied at the DMERC level, no cases will get to the ALJ level unless either: 1) the individual can finance or obtain a loan to finance the device, or 2) a vendor will accept assignment, knowing that an ALJ decision will come two to four years in the future.
The existence of NCD 60-9 makes it unlikely that vendors will accept assignment. Vendors routinely call their regional DMERC for guidance on whether a device will be covered. If the item is an ACD, they can probably expect to hear that the item is not covered with reference to NCD 60-9. Since they cannot wait two to four years for an ALJ decision, allowing them to collect on the sale, they simply tell the customer the device is not covered and no Medicare claim is pursued.
National Work Group to
Address
Medicare Funding of ACDs
Previous newsletters have reported on the ACD Work Group -- 12 or 13 attorneys and advocates from various states who gather by teleconference to discuss cases, strategy and other issues related to the funding of ACDs, primarily through Medicaid. On May 27th, a group of P&A attorneys and advocates (several of whom were already involved with the ACD Work Group) gathered at the United Cerebral Palsy Associations' offices in Washington, D.C. for a day-long training and discussion concerning Medicare funding of ACDs. The work of the ACD Work Group will now be expanded to include the Medicare issues.s Jim Sheldon of the National AT Advocacy Project will continue to organize and chair the meetings of the work group. Lew Golinker of Ithaca, New York will play a lead role in the specific Medicare effort. Plans are to make Medicare the focus of the Work Group's meeting every other month. During alternate meetings the group will discuss Medicaid and other funding sources. As this went to press, 20 or more attorneys and advocates were scheduled to join a July 23rd teleconference to discuss Medicare. We will periodically report on the progress of work on the Medicare issues.
MEDICARE APPEALS
The Medicare appeals process will differ depending on whether Part A or Part B is involved. It will also be different if the person is enrolled in Medicare Managed Care.
For Part B, the appeal process outside
managed care will follow this sequence:
For Part A, a "reconsideration" replaces the carrier review and carrier hearing steps and the threshold drops to $100 for ALJ hearings.
Under managed care, the appeals process is somewhat different. See 42 C.F.R. §§ 417.600-694. A review by the Health Maintenance Organization (HMO) is the first step. If the HMO cannot provide what the claimant wants, the review is transferred to the Network Design Group (NDG). NDG has the national contract for reconsidering all HMO denials or adverse decisions. The remaining steps follow the Part A process and thresholds.
CONCLUSION
This article should serve as a starting point for educating our readers on the availability of Medicare as a funding source for AT. Readers who wish more information on Medicare can obtain copies of additional written materials referenced on page 67, above. Future issues of AT Advocate will address additional issues faced by the person who seeks to obtain AT through Medicare, including the special problems faced by persons eligible for both Medicaid and Medicare.
We wish to express our gratitude to our colleague, Tony Szczygiel, of the Buffalo Law School. Significant parts of this article were excerpted from the materials Tony prepared for our March 1997 conference in Austin, Texas. We also wish to express our gratitude to Lew Golinker who practices out of the Assistive Technology Law Center in Ithaca, New York. Lew's writings on this topic also helped to give us an organizational framework for this article.
RESOURCES
AVAILABLE ON
MEDICARE FUNDING OF ASSISTIVE TECHNOLOGY
1. Medicare Long Term Care Coverage and Assistive Technology (February 1997)(21 pages), Anthony Szczygiel, Associate Clinical Professor, University of Buffalo School of Law (used as handout at 3/97 AT conference in Austin, Texas).
2. Medicare Funding for Augmentative and Alternative Communication Devices (May 1997) and Medicare Funding for Closed-Circuit Television (CCTV) and Other Low Vision Aids (May 1997), Lewis Golinker, Director, Assistive Technology Law Center. These articles appeared in the early spring issue of the Tech Express newsletter which is published by the United Cerebral Palsy Associations.
3. Memorandum: Section 504 Claims (To Challenge Medicare Augmentative and Alternative Communication Device Funding Barriers) (May 1997)(25 pages), Lewis Golinker, Director, Assistive Technology Law Center.
4. Medicare National Coverage Decisions (Concerning Durable Medical Equipment and Augmentative and Alternative Communication Devices) (May 1997)(7 pages), Anthony Szczygiel, Associate Clinical Professor, University of Buffalo School of Law.
5. Funding and Assistive Technology: Medicare as a Funding Source (November 1996)(16 panels in brochure format), N.Y. State Office of Advocate for Persons with Disabilities, TRAID Project; content prepared by Medicare Rights Center, New York City.
All of these items are available to readers through the National AT Advocacy Project.
DURABLE
MEDICAL EQUIPMENT
REGIONAL CARRIERS (DMERC)
Northeast Region - Region A
Connecticut, Delaware, Maine, Massachusetts, New Hampshire, New
Jersey,
New York, Pennsylvania, Rhode Island, and Vermont.
Carrier: The MetraHealth Insurance Company
Address: Regional A DMERC
P.O. Box 6800
Wilkes-Barre, PA 18773-6800
Telephone: (717) 735-9400 Fax: (717) 735-9402
Mid-Atlantic & North Central Region - Region B
District of Columbia, Illinois, Indiana, Maryland, Michigan,
Minnesota, Ohio,
Virginia, West Virginia, and Wisconsin.
Carrier: AdminaStar Federal Inc. (Associated
Insurance Companies, Inc.
d.b.a. Blue Cross and Blue Shield of Indiana)
Address: DMERC Operations
P.O. Box 7078
Indianapolis, Indiana 46207-7078
Telephone: (317) 841-4425 Fax: (317) 841-4691
South and Southwest Region - Region C
Alabama, Arkansas, Colorado, Florida, Georgia, Kentucky,
Louisiana, Mississippi,
New Mexico, North Carolina, Oklahoma, Puerto Rico, South Carolina, Tennessee, Texas,
& the Virgin Islands.
Carrier: Palmetto Government Benefits
Administrators
(Blue Cross and Blue Shield of South Carolina)
Address: Medicare DMERC Operations
P.O. Box 100141
Columbia, South Carolina 29202-3141
Telephone: (803) 735-1034 Fax: (803) 691-2188
Western Region - Region D
Alaska, Arizona, California, Guam, Hawaii, Idaho, Iowa, Kansas,
Missouri, Montana,
Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming.
Carrier: Connecticut General Life Insurance
Company
Address: CIGNA
Medicare Region D DMERC
P.O. Box 690
Nashville, Tennessee 37202
Telephone: (615) 728-4511 Fax: (615) 244-6242
AT COURT WATCH
Fred C. v. Texas Health and Human Services Commission, 924 F.Supp. 788 (W.D. Tex. 1996), vacated and remanded, unpublished, No. 96-50417 (5th Cir. 5/27/97): The District Court held that 47 year old Fred C. was entitled to Medicaid funding for an augmentative communication device (ACD). The court found plaintiff entitled to the ACD under both the mandatory home health services category, as durable medical equipment, and under the optional category for prosthetic devices. 42 C.F.R. §§ 440.70(b)(3) and 440.120(c).
The Fifth Circuit two-page opinion vacates the District Court's judgment and remands for further proceedings. The court found abundant proof in the record to establish that Fred C. is Medicaid eligible, that the ACD is medically necessary and that it is provided by Texas in its home health services program. It then remanded the case for the limited purpose of determining whether Fred C. is qualified for benefits under the home health services category. The Fifth Circuit never discussed the lower court's holding that plaintiff was entitled to the ACD as a prosthetic device. As such, we believe that it was improper to vacate that part of the judgment as the plaintiff need not be eligible for home health services to qualify for benefits under the prosthetics category.
To obtain a copy of this decision contact the AT Advocacy Project.
National AT Advocacy Project Staffing Change
In June, our paralegal, Teresa Amspacher,
left us. Teresa provided much of the energy behind creation of the system and database set
up for our AT Resourse Library and Digest. She will be missed.
Please send any written materials (hearing decisions. briefs, etc.) to
our secretary, Vivian Cosentino. You can also call Vivian at ext.271 if you want specific
materials from our Resource Library.
The National Assistive Technology Resource Library
We have designed a word-searchable digest, using computer technology, to store and retrieve hearing decisions, pleadings, briefs and other documents from our resource library. Please send us your hearing decisions, briefs and other documents involving AT.
Please send information to: TEL: (716)
847-0650 Handsnet: HN0627
Attn.: Vivian Cosentino FAX: (716) 847-0227 e-mail: nls01@sprynet.com
Neighborhood Legal Services, Inc. TDD: (716) 847-1322
Ellicott Square Building Web Page: http://www.nls.org
295 Main Street, Rm 495
Buffalo, NY 14203
In our next issue.....
Reauthorization of the Individuals with
Disabilities Education Act (IDEA)
- How it affects AT approval
NOTE: The AT Advocate is now issued bi-monthly
The AT Advocacy Project will provide nationwide services to PAAT projects including technical assistance to advocates wanting to access funding for assistive technology for individuals with disabilities.