Medicaid Reimbursement
for Assistive Technology in Nursing Facilities
Copyright 2004 Minnesota Disability LawCenter.
All rights reserved.
By
Steve Elliot
Minnesota Disability Law Center
430 First
Avenue North
Suite 300
Minneapolis, MN 55401-1780
(612)
332-1441
selliot@midmnlegal.org
I. NURSING
FACILITY SERVICES
A. The purpose of
the Medicaid program is to provide necessary medical care and services to
needy persons and to provide rehabilitation and other services that help such persons
attain or maintain capability for independence and self-care. 42 U.S.C. § 1396. For many Medicaid recipients in nursing facilities,
assistive technology is essential medical care for attaining or maintaining independence.
B. Medicaid
services must be made available in the same amount, scope and
duration to all eligible individuals in a state. 42
U.S.C. § 1396a(a)(10)(B)(i); 42 C.F.R. § 440.240(a). A state's failure to provide the same service or
device to a skilled nursing facility resident that it provides
to persons living in the community violates this provision.
C. Nursing facility
services are a required Medicaid service. 42
U.S.C. § 1396a(a)(10)A. Every
state that has a Medicaid program must provide nursing facility service to its recipients.
1. A
recipient is eligible for nursing facility services if they require services provided by
or under the direction of a nurse on a daily basis or other rehabilitative services, which
as a practical matter, can only be provided in a nursing facility on a daily basis, as an
inpatient. 42 U.S.C. § 1396d(f).
2. Under the
federal regulations, an ICF/MR is not considered a nursing
facility. 42 C.F.R.
§ 483.5. There are separate regulations
governing the provision of services in an ICF/MR. However, many of the concepts and
arguments contained in this outline may be applied when seeking
assistive technology for an ICF/MR resident.
II. HOME HEALTH
SERVICES
A. Home health
services are optional Medicaid services. 42
U.S.C. § 1396a(a)(10)A.
B. States do NOT
have to include home health services in their state plan.
Contact your state Medicaid agency for a copy of the state plan or consult your
state laws to determine what Medicaid services are available in your state.
1. Home
health services include medical equipment and supplies provided to a recipient in their
home. 42 C.F.R. §
440.70.
2. A home
does not include a hospital, nursing facility or ICF/MR.
42 C.F.R. § 440.70.
3. Home
health services include durable medical equipment, which is the most common category of
coverage for assistive technology. Id.
C. States MUST
provide home health services to recipients who are entitled to nursing facility services. 42 U.S.C. § 1396a(a)(10)D.
D. Recipients who
meet the nursing facility level of care and reside in the community are entitled to home
health services, including durable medical equipment.
See, 42 U.S.C. § 1396d(f) for nursing facility
level of care.
1. The state
Medicaid agency may not arbitrarily deny or reduce the amount, duration or scope of the
services required under 42 C.F.R. § 440.220 to eligible individuals based solely on the
individual's diagnosis, illness or condition. 42 C.F.R. § 440.230(c).
2. The
services required under 42 C.F.R. § 440.220 are the services for the medically needy, and
include home health services for recipients entitled to nursing facility services. 42 C.F.R. § 440.220(a)(3).
III. PROSTHETIC AND
ORTHOTIC DEVICES
A. Prosthetic and
orthotic devices are optional Medicaid services. States
do NOT have to include this category of service in their state plan. 42 U.S.C. § 1396a(a)(10)A.
B. A vast majority
of the states include prosthetics and orthotics in their state plan as a covered service.
C. The federal
regulations governing the Medicaid program define prosthetic devices as:
. . . replacement,
corrective, or supportive devices prescribed by a physician . . . to-
(1) Artificially replace a
missing portion of the body;
(2) Prevent or correct
physical deformity or malfunction; or
(3) Support a weak or deformed
portion of the body. 42 C.F.R. § 440.120(c).
D. Many assistive
technology devices meet the prosthetic device definition and are
covered under this service category. They
include augmentative communication devices, wheelchair seating systems and artificial
limbs.
E. The
federal regulations DO NOT limit prosthetic and orthotic device coverage to
recipients residing in a home.
IV. SERVICES PROVIDED TO
NURSING FACILITY RESIDENTS
A. Nursing
facilities must perform comprehensive assessments of residents' medical needs.
1. The
assessment must include an assessment of the resident's functional capabilities. 42 U.S.C. § 1396r(b)(3).
2. The
facility must identify the services necessary to improve or maintain the resident's
function, and incorporate the services into a comprehensive care plan. 42 U.S.C. § 1396r(b)(2);
42 C.F.R. § 483.25.
3. Nursing
facilities must perform periodic reassessments of resident needs. These reassessments must be
done at least every three months and must be done when there is a significant
change in the resident's condition. The
information gathered during the reassessment must be incorporated
in the resident's care plan. 42 U.S.C. § 1396r(b)(3)(C); 42 CFR § 483.20(d).
B. A nursing
facility must provide services that allow residents to attain or maintain the highest
practicable physical, mental and psycho-social well being. The facility must also provide services that allow
residents to improve or maintain their ability to perform activities of daily living,
including the ability to ambulate. 42 U.S.C.
§ 1396r(b)(2); 42 C.F.R. § 483.25.
C. Residents must also be provided with opportunities to interact with the
community. 42
C.F.R. § 483.15.
1. Thus,
nursing facility residents are entitled to durable medical equipment and prosthetic
devices (assistive technology) that will allow them to attain or maintain the highest
practicable physical, mental or psycho-social well being, as
identified on the resident's assessment and care plan.
2. A resident
must be provided assistive technology, such as durable medical
equipment and prosthetic devices, if the technology will allow the resident to maintain or
improve their ability to perform activities of daily living, including ambulation.
3. If
assistive technology is necessary to allow a resident to interact with the community, the
facility must provide it.
D. Nursing
facilities are required to provide specialized rehabilitation therapy to residents. 42 C.F.R. § 483.45.
1. Specialized
therapy includes physical therapy, occupational therapy and speech therapy.
2. Under
the federal regulations, these therapies include the therapy service itself and any
necessary equipment and supplies. 42 C.F.R. § 440.110.
3. Therefore,
nursing facility residents are entitled to assistive technology, if it is a necessary part
of their therapy. For example, if a resident
needs an augmentative communication device to effectively communicate,
the ACD would be considered a necessary part of the resident's speech therapy.
E.
Caveat: Although you have a strong legal argument, under federal law and
regulations, to place the burden for funding expensive AT on the nursing facility itself,
the reality of practice in your state may be quite different.
1. In some states, either by
regulation or policy, the nursing home is only responsible for standard, non-custom
equipment that the facility would ordinarily keep in its storeroom. Practically speaking, it makes more sense to go
through regular Medicaid channels (a prior-approval process in most states) to obtain
custom or non-standard equipment.
2.
Your state may also have a
standard contract, between nursing facility and state Medicaid agency, that spells out the
obligation (or lack of obligation) of the facility to provide non-standard or custom
equipment. Typically, this contract will not
burden the facility with the obligation for items like power wheelchairs. Here again, the more practical course of action is
to seek custom or non-standard equipment through regular Medicaid channels.
3.
The
other practical consideration is that referrals often come in through the nursing
facilities, with the expectation that the attorney or advocate will seek funding through
the regular Medicaid channels. If you are
successful in obtaining funding from the facility, will you ever see another referral?
V. REIMBURSEMENT
FOR NURSING FACILITY SERVICES
A. States must
establish rates, usually called a per diem, to reimburse nursing facilities for the cost
of providing comprehensive nursing facility services, as detailed in federal law. 42 U.S.C. § 1396a(a)(13)A.
B. The per diem
must take into account the cost of providing services that allow residents to attain or
maintain the highest practicable physical, mental and psycho-social
well being. 42 U.S.C. § 1396a(a)(13)A.
C. Generally,
states by regulation establish the per diem and what it pays for. States usually describe the services paid for under
the per diem in very general terms. Some
states specifically exclude custom equipment from the per diem.
D. The following
examples illustrate how some states handle reimbursement for custom equipment for nursing
facility residents.
Pennsylvania - The Medicaid program
provides separate reimbursement outside of the facility per diem for durable medical
equipment for nursing facility residents, if the equipment is
significantly customized. Expensive
noncustomized equipment, such as power wheelchairs, is not separately
reimbursed outside of the per diem.
Wisconsin - The Wisconsin Medical
Assistance program will separately reimburse for wheelchairs for nursing home residents
if:
1. The medically necessary custom adaptive wheelchair
positioning system or powered wheelchair is personalized in
nature,
custom-made to fit only one recipient, and is justified by the
resident’s
diagnosis, prognosis and occupational or vocational activities;
or
2. the resident
has a long-term disability and the wheelchair requested constitutes basic and necessary
health care for the resident and maximizes the resident's potential for independence, or
the
resident
is about to be transferred from the nursing home to a more
independent
setting.
Rickaby
v. Wisconsin Dept.
of Health and Soc. Services, 297 N.W.2d 36 (Wis. Ct.
Ap. 1980). See also, Trott v. Wisconsin Dept. of
Health & Family Services, 242 Wis.2d 397, 626 N.W.2d 48 (Wis. Ct. Ap. 2001) where
the court interpreted the relevant state regulation as listing two distinct exceptions
qualifying for separate reimbursement for wheelchairs as stated above.
Minnesota
- A provider who furnishes durable medical equipment for a recipient who is a resident of
a hospital or long-term care facility may submit a separate claim for medical assistance
payment if the equipment has been modified for the recipient or the item is necessary for
the continuous care and exclusive use of the recipient to meet the recipient's unusual
medical need according to the written order of a physician. Minn. R. 9505.0310, Subp. 2, A.
E. Nursing
facilities providing Medicaid services generally sign contracts with the state Medicaid
agency. These contracts outline the services
the facility is obligated to provide. You
should examine these contracts closely to determine if assistive technology is a service
that the facility has contracted to provide.
F. Even if
your state does not specifically exclude custom equipment from the nursing facility per
diem or contract, you can infer that custom equipment is excluded, if the state
regulations, regarding per diems, and the nursing facility contract speak of equipment in
general terms.
G. When trying to
obtain reimbursement outside the per diem for assistive technology, you should focus on
the resident's individual medical needs. The
focus should not be on the facilities’ ability to pay for the equipment or ability to
recover the cost of the equipment. In re anonymous, Docket No. 53242, Minnesota
Department of Human Services, November 4, 1998.
H. Most states
provide reimbursement outside of the per diem to nursing facilities for specialized
rehabilitation therapy.
I. States
must assure that facilities receiving payments for Medicaid nursing facility services are
providing the services required under federal law. 42 U.S.C. § 1396a(a)(28).
J. If the
per diem established by the state is not adequate to ensure the provision of assistive
technology, or any other nursing facility service, the state must separately reimburse for
the service or increase the per diem.
VI. USING PASARR TO
OBTAIN ASSISTIVE TECHNOLOGY
[This section prepared by
Stacey Siebrecht, Disability Law Center, Boston, Mass.]
A. Preadmission
Screening And Annual Resident Review (PASARR)
1. OBRA
a. Omnibus
Budget Reconciliation Act of 1987 - amends Title XIX of Social Security Act (i.e., the
Medicaid title).
b. Includes
nursing home reform amendments which include a provision on
PASARR.
2. PASARR
a. Preadmission
Screening and Annual Resident Review for individuals with mental illness and mental
retardation. 42 U.S.C. § 1396r(e)(7)(A)-(G).
b. Congress
replaced the requirement for an annual review in October of 1996. PASARR now requires a resident review to occur when
there is a "significant change in physical or mental condition of a resident who is
mentally ill or mentally retarded." Id. § 1396r(e)(7)(B).
c. Mentally
retarded includes persons with a related condition. Id. § 1396r(g);
see also 42 C.F.R. § 435/1009 which defines related condition.
d. The
screening is completed by:
(1) the state
mental health authority for those with mental illness to determine both whether the persons
requires the level of services of nursing facility and whether specialized services are
necessary, basing this determination on an independent physical and mental evaluation
performed by someone other than the mental health authority.
42 C.F.R. § 483.106(d)(1); and
(2) the state MR and DD authority makes the determinations and the
evaluations for those individuals with mental retardation and related conditions. Id. at § 483.106(d)(2).
3. Specialized
Services are:
a. Definitions: Different definitions of Specialized Services for
MR and MI.
(1) For MI,
specialized services are only those that result in "continuous and aggressive
implementation of an individualized plan for care that - . . . prescribes specific
therapies and activities for the treatment of persons experiencing an acute episode of
serious mental illness which necessitates supervision by trained mental health
personnel." 42 C.F.R. § 483.120(a)(ii) (emphasis added).
(2) For MR,
specialized services are: "the services
specified by the State which, combined with services provided by the NF or other service
providers, results in treatment which meets the requirements of 483.440(a)(1)." Id. § 483.120(a)(2)
(3) The section
for specialized services for individuals with MR refers you to the "active
treatment" definition at 42 C.F.R. § 483.440(a).
See, Rolland v. Cellucci, 198 F.Supp.2d 25
(D.Mass. May
3, 2002), aff’d. sub nom. Rolland v. Romney, 318 F.3d 42 (1st
Cir.(Mass.) Jan.28, 2003) where the district court ordered the state to establish and
implement a clear policy of “active treatment” to all class members
(developmentally disabled and mentally retarded nursing home residents) who need
specialized services.
b. Look to
your state’s definition of "specialized services."
c. An
evaluation must include:
(1) This section
sets forth the minimum data needed or process required for state MR authorities to
determine whether the individual needs specialized services analogous to active treatment. 42 C.F.R. § 483.136(a).
(2) For example, it
requires that the assessment identify the following: (8)
sensorimotor development such as ambulation, positioning, transfer skills, gross motor
dexterity, . . . and the extent to which prosthetic, orthotic, corrective, or mechanical
supportive devices can improve the individual's functional capacity; (9) speech and
language development . . . and the extent to which amplification devices or a program of
amplification can improve the individual's functional capacity. 42 C.F.R. §§ 483.136(b)(8)
and (9).
d. What the
NF must provide:
(1) NF must
provide services of lesser intensity. 42 C.F.R. § 483.120(c).
(2) NF must
provide a variety of services under section 42 U.S.C. § 1396r(b)(4) (setting forth
requirements for the provision of services and activities which include "nursing and
related services and specialized rehabilitative services to attain or maintain the highest
practicable physical, mental, and psychosocial well being of each resident." 42 U.S.C. § 1396r(b)(4)(A)(i).
e. Who
pays: State must pay.
(1) "The
State must provide or arrange for the provision of specialized services in accordance with
this subpart to all NF residents with MI or MR whose needs are such that continuous
supervision, treatment and training by qualified mental health or mental retardation
personnel is necessary, as identified by the screening . . . ." 42 C.F.R. § 483.120(b).
B. Argument That
Assistive Technology Is A Specialized Service.
1. Specialized
services include the provision of adaptive equipment necessary to facilitate the requisite
therapies including physical or speech therapy. See,
e.q. Hillburn by Hillburn v. Maher, 795 F.2d 252 (2d
Cir. 1986), aff'g 1985 WL 2364 (D.Conn. 1985).
See also, Rolland (198 F.Supp.2d 25 at 41)
where the court cites testimony regarding a resident who was not able to use an electric
wheel chair at her nursing home but thrived with such use at the day habilitation center.
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