Volume II Issue 6
July/August 1997
Copyright 1997, Neighborhood Legal Services, Inc.
Newsletter of the Assistive Technology Advocay Project
A Project of Neighborhood Legal Services, Inc · 295 Main Street,
Room 495 · Buffalo NY 14203
(716) 847-0650 · (716) 847-0227 FAX · (716) 847-1322TDD · NLS01@sprynet.com ·
http://www.nls.org
Supported by NYS Office of Advocate for Persons with Disabilities,TRAID
Project, a Project
Funded by The National Institute on Disability and Rehabilitation Research, U.S.
Department of Education.
Opinions expressed herein are not necessarily those of either TRAID or NIDRR
MEDICARE & ASSISTIVE
TECHNOLOGY:
A MAJOR FUNDING SOURCE FOR BOTH
YOUNG AND OLDER ADULTS
INTRODUCTION
Medicare covers 14 percent of the U.S. population. Many of these Medicare recipients have disabilities. These numbers suggest that Medicare should be used as a primary funding source for Assistive Technology (AT). This is not always the case, however. Medicare recipients, needing equipment like wheelchairs or augmentative communication devices, often do not get the equipment they need. Regretfully, this may happen because Medicare recipients cannot find an advocate who can assist them in their efforts.
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.
WHAT IS MEDICARE?
Medicare is a federal health insurance program for persons over 65 and persons with disabilities.1 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,2 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.3
Deductibles and co-payments apply to some covered services.4 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. HCFA has set the 1997 inpatient hospital deductible at $760.5 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 were 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. All others must file an application.8
Medicare Has No Income or Resource Rules
Medicare has no income or resource eligibility test. However, this does not mean that all Medicare recipients are financially well off. There is a high cost associated with having a disability, leaving very little money for food, clothing and shelter. When a person with a disability is also affected by age, the effect can be devastating. It is not uncommon to find Medicare recipients who are also eligible for other benefits like Medicaid, Food Stamps, SSI, and public housing subsidies. You should always ask if your client or consumer is receiving Medicare.
What Happens to Medicare
When An SSDI Recipient Works?
A Social Security Disability Insurance (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.9
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.10 Thereafter, the person can continue Medicare eligibility by paying a special premium.11 [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 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.12
WHAT IS COVERED?
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."13 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. Some NCDs allow for coverage of specific items while others specifically exclude coverage. NCDs will be referenced by Medicare decision makers when they approve or deny coverage.
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 also 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 ..."14 The regulations define DME as equipment that
Prosthetic devices are devices "that replace all or part of an internal body organ."16 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."17 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 function of the organ.
Orthotics include leg, arm, back and neck braces.18 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."19 The Medicare Carrier's Manual, at § 2133, 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."20
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).
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 unless an appeal is successful. 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.
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 ask for coverage under the speech-language pathology services category, which does not specify that equipment is covered within the category.21
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."22 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.23 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.24
In Matter of Richard (Idaho 5/97), Idaho 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.
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.25 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.
The procedures for requesting appeals and time limits for requesting appeals will vary depending on the level of appeal and whether Part A or Part B is involved. Also, procedures will vary when managed care is involved. It is necessary to carefully read notices to determine the procedures and time limits which apply to the various Medicare appeals. When in doubt, it is always best to file an appeal within 60 days of the decision in question, as this is the most common and shortest time limit for filing Medicare appeals. In some cases, the time limit for appealing may be greater but it is always best to error on the side of caution.
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 should contact us at the AT Advocacy Project. Future issues of IMPACT 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 materials Tony prepared for an Assistive Technology conference presented by the National Assistive Technology Advocacy Project this March 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 helped to give us an organizational framework for this article.
The regional DMERC which oversees New York claims is:
The MetraHealth Insurance Company
Regional A DMERC
P.O. Box 6800
Wilkes-Barre, PA 18773-6800
Telephone: (717) 735-9400
Fax: (717) 735-9402
______________________________
1 Social Security Act, Title 18, 42
U.S.C. §§ 1395 et seq.; 42 C.F.R. Parts 405-424.
2 See 42 U.S.C. § 1395i-2(d).
3 42 U.S.C. §§ 1395i-2(g), 1396d(p)(1).
4 42 U.S.C. § 1395e.
5 See 61 Fed.Reg. 55002 (October 23, 1996).
6 42 U.S.C. § 426(b).
7 42 U.S.C. §§ 426-1, 1395c, 1395rr; 42 C.F.R. § 406.13(b).
8 42 C.F.R. § 406.6(b); 42 C.F.R. § 406.6(c).
9 20 C.F.R. §§ 404.1574, 404.1592, 404.1592a.
10 42 U.S.C. § 426(b).
11 42 U.S.C. § 1395i-2a.
12 See 42 U.S.C. §§ 1395y(a)(7), (8), (10), (12) and (13).
13 42 U.S.C. § 1395y(a)(1)(A) (emphasis added).
14 42 U.S.C. § 1395x(n).
15 42 C.F.R. §§ 410.38(a), 414.202.
16 42 U.S.C. § 1395x(s)(8); 42 C.F.R. § 410.36(a)(2).
17 See CCH Medicare & Medicaid Guide ¶3152.
18 42 U.S.C. § 1395x(s)(9); see also 42 C.F.R. §§ 410.36(a)(3),
414.202.
19 42 C.F.R. § 410.100(g).
20 See CCH Medicare & Medicaid Guide ¶ 3156.
21 See 42 C.F.R. § 410.62.
22 ALJ Decis., pp. 4-5. See 42 U.S.C. § 1395x(s)(8); Medicare Carriers
Manual § 2130.
23 See 42 U.S.C. § 1395x(n); 42 C.F.R. § 410.38.
24 ALJ Decis., p.7. See 62 Fed. Reg. 25844 - 25855 (May 12, 1997),
amending the regulations governing the Medicare appeal process and effective June 11,
1997.
25 See 42 C.F.R. §§ 417.600-694.
Administrative Hearings I
Congratulations to our student intern, Lorne Marshall, on his advocacy efforts for his client, Andrew M. Andrew M. is a 15 year old child who was denied Medicaid prior approval for a power wheelchair. In its summary, the Department of Health (DOH) stated that Andrew had less costly alternatives at hand, like family members and school aides to push him from place to place, but Andrew's notice only stated that there were less costly alternatives. Lorne brought several agency actions to the immediate attention of the administrative law judge (ALJ), thereby weakening the agency's case. First, Lorne argued that the DOH accepted Andrew's doctor's statement of medical necessity as evidenced by the agency restating the doctor in the DOH Staff Findings. Second, he argued that the notice informed Andrew that there were less costly alternatives, but did not state what any of them may be. Third, Andrew was asking Medicaid to only pay the remaining balance of what his parent's insurance did not pay for the wheelchair, a mere $1000.
The ALJ stated "the agency's fair hearing summary conceded that a power wheelchair is medically necessary, and failed to set forth any less costly alternatives. The Appellant's evidence established that he did consider an alternative, and it was more costly and less versatile. Therefore, the agency's determination is not correct."
For copies of this decision, ask for Matter of Andrew M. (F.H. # 2702151Z)
Administrative Hearings II
Mark Wattenburg does it again! In the Matter of Jeffery P., Mark, an attorney with Southern Tier Legal Services, successfully advocated for a standing frame (i.e., a "Stand Aid") for his client. Jeffery P. is a 38 year old male with pressure sores, ecoptic calcification, hyperventilation, bladder problems and low blood pressure due to prolonged sitting in his wheelchair. Jeffery asked Medicaid to give him prior approval for a Stand Aid, which the agency refused because it claimed the requested equipment was a convenience.
Mark ended up with the medical necessity half of this battle being won at an Article 78 court appeal with a remand to the Department of Health (DOH) on the cost effectiveness portion of the prior approval requirement. Mark was successful in showing that the Stand Aid was the most cost effective means for providing standing therapy. The agency's determination to deny Jeffery P. his prior approval request was reversed.
Thanks Mark for being such a tenacious advocate.
For copies of this decision, ask for Matter of Jeffery P. (F.H.# 2660754P)
Conference Announcement !
Employment and Persons with Disabilities:
The Impact of Employment on Disability Benefits and Medicaid
Sessions Cover:
October 30-31, 1997
Sheraton University Hotel & Conference
Center
Syracuse, New York
$150 Registration Fee covers two days training, lunches, refreshments,conference manual & handouts
To Obtain a Conference Brochure and
Registration Form
Call Vivian Cosentino at Neighborhood Legal Services, Inc.
716-847-0655 ext. 271, -0227 (fax), -1322 (tdd), or e-mail us at: nls01@sprynet.com
Welcome to Neighborhood Legal Services' data bank!
Do you have decisions of interest relating to assistive technology in the following areas? Medicaid, Medicare, Vocational Rehab, VA, Special Education, Physically Handicapped Children's Program, Private Insurance, etc.
Other advocates can benefit from your experience. If you have fair hearing decisions or are involved in or have completed litigation in these areas, we want to know about it.
Please send information to:
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HN0627
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In our Upcoming Issues...
- Reauthorization of the Individuals
with Disabilities Education Act (IDEA)
- AT Related Resources on the Internet
- AT and Private Insurance