Volume IV      Issue 1                                                                      September/October 1998
Copyright 1998, Neighborhood Legal Services, Inc.

    The augmentative communication device (ACD), also referred to as an augmentative and alternative communication (AAC) device, is a form of assistive technology (AT) which allows a person to speak through an artificial voice. It is sometimes called an electronic communicator or talking computer. The term ACD is used here to include a wide range of devices which produce the equivalent of human speech. The ACD allows a person to speak despite a significant speech impairment or no ability to speak at all.

    ACDs have been commercially available for more than 15 years. Many persons who started with ACDs in the 1980s or early 1990s, have now graduated to more technologically advanced devices. The newer ACDs allow their users to say more, say it faster, and say it with greater accuracy.

    The full augmentative communication system may include optional, add-on equipment or peripherals, such as wheelchair mounts, cables, printers and optional software. ACD users may also be offered a choice of voice type. While the typical ACD of the mid-80s came with a stereotypical male computer voice, many current models offer the user a choice of male, female, adult or child voices. Given the cost of the ACD with peripherals - typically in the range of $1,500 to $8,000 - many potential funding sources have balked at approving funding.

    This article covers several different funding sources for ACDs, including Medicaid, Medicare, private insurance, special education programs, the Physically Handicapped Children’s Program, the Office of Vocational and Educational Services to Individuals with Disabilities, and SSI’s Plan for Achieving Self Support. For each, we briefly explain the circumstances under which an ACD would or might be funded, and the process available for appealing an adverse decision. We also refer the reader back to earlier issues of IMPACT for more detailed information on each funding source. We do not provide extensive citations to law, regulation and policy, referring the reader to our earlier newsletters which contained more extensive citations.

    One must follow the procedures and use the forms required by the funding source. It is also important that those individuals, doctors or health professionals who fill out forms and prepare supporting documents do so with an eye to the criteria followed by the funding source. On this point, we refer the reader to our March-April 1998 issue of IMPACT, "Report Writing: Justifying the Need for Assistive Technology." As that newsletter points out, the focus of the supporting report will vary depending on which funding source is involved.

    Since Medicaid is a popular funding source for ACDs, establishing Medicaid eligibility may be the ticket to getting an ACD funded. Therefore, it is worth noting four primary ways of establishing eligibility: eligibility is automatic for Supplemental Security Income (SSI) recipients; eligibility may be established if monthly income is below a set threshhold; eligibility may be established under a special rule, like the section 1619(b) provision allowing Medicaid to continue when a person loses SSI due to wages (see box, p. 141); and eligibility may be established under a Medicaid Waiver, such as the provision allowing Medicaid to ignore the income and resources of a child’s parents when the child meets the admission criteria for a skilled nursing facility.

    To learn more about Medicaid, see the following back issues of IMPACT: "Medicaid Part I: Overview of Eligibility Criteria" (Nov. 1995); "Medicaid Part II: Special Medicaid Rules for Persons with Disabilities" (Dec. 1995); and "Medicaid Part III: Prior Approval of Assistive Technology, Fair Hearings and Court Appeals" (Jan. 1996). To learn about how to obtain or retain SSI in order to qualify for Medicaid, see "Using SSI and Its Income & Resource Rules to Leverage Money for AT" (Jan.-Feb. 1997).

    Medicaid will pay for an ACD as durable medical equipment (DME) if the item is medically necessary - that is, if it meets November 1991 State Department of Heath (DOH) Guidelines for approval of Augmentative Communication Systems. (Copies of the Guidelines are available through the AT Advocacy Project.) It must be prescribed by a physician based on the recommendation of a speech-language pathologist. Under the Guidelines, a person is eligible for an ACD "when their ability to communicate using speech and/or writing is insufficient for normal conversation and . . . an [ACD] will provide the individual with improved communication". [Guidelines, p. 3] "The prescribed system/component(s) should provide the individual with the potential for a level of communication appropriate to his/her physical, language and cognitive abilities. This includes the ability to communicate with any person desired as often and independently as possible." [Guidelines, p. 4] A device/system may be modified or replaced based on the individual’s changing abilities or needs, or based on the availability of improved technology.

    An approved DME vendor must send a prior approval request to the State DOH office responsible for the region where the individual resides. Since the 1991 Guidelines were issued, many requests for funding of ACDs have been routinely approved. If DOH denies the request, their written notice must explain the basis of the denial and advise the person of the right to a fair hearing. If the hearing decision also rules against the individual, the next appeal would be in either state or federal court.

    This federal insurance program is for persons over 65 and for persons with disabilities who receive Social Security benefits. Medicare Part A, known as Hospital Insurance, covers inpatient care, nursing facility care, hospice care, home health services and durable medical equipment (DME). Medicare Part B, known as Supplemental Medical Insurance, covers outpatient services, including physician services, DME, prosthetic devices, orthotic devices and home health services. We know of seven or eight ACDs which have been funded, following hearing decisions or at the application stage, under either the DME or prosthetic devices categories. For more information on Medicare, see our July-Aug.1997 issue of IMPACT, "Medicare and Assistive Technology: A Major Funding Source for Both Young and Older Adults."

    For the majority of Medicare recipients, who are not covered by managed care plans, there is no prior approval process for an ACD. A claim will move forward only if the equipment vendor delivers the item and either: 1) "accepts assignment" and agrees to take whatever rate Medicare approves; or 2) does not accept assignment and bills the patient or another payor (e.g., Medicaid or private insurance). A vendor that accepts assignment will only be paid by Medicare if the claim is later approved by the Durable Medical Equipment Regional Carrier (DMERC) which covers New York. For the 10 percent of Medicare recipients enrolled in a managed care plan, a prior approval request can be submitted to their Medicare health care maintenance organization.

    Funding of ACDs under Medicare is a significant challenge. In part, this is because Medicare’s existing policy, known as National Coverage Decision (NCD) 60-9, lists augmentative communication device and communicator as items not eligible for DME coverage because they are not considered by Medicare to be primarily medical in nature. It is also because a majority of Medicare recipients cannot submit a prior approval claim for an ACD and vendors are reluctant to accept assignment because the DMERC is expected to deny coverage based on NCD 60-9. NCD 60-9 does not apply to the prosthetic devices category.

    Matter of Emlyn J. (Calif. 8/93) awarded Part B benefits for a computer and supplies to allow a 70 year old stroke victim to communicate orally. The Administrative Law Judge (ALJ) held 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."

    Matter of Blanche B. (NY 5/95) awarded Part B benefits for a Real Voice laptop talking computer. The ALJ held that the device met the definition of DME and that NCD 60-9 was not binding on him and did not preclude a finding that the Real Voice meets the DME definition. The ALJ pointed out that only NCDs which are promulgated (i.e., enacted) under section 1862(a)(1) of the Social Security Act and published in the Federal Register, are binding on ALJs. NCD 60-9 was not so promulgated.

    Matter of Richard (Idaho 5/97) awarded Part B benefits for a Canon Communicator for a 69 year old stroke victim, finding that the device met the definitions of DME and prosthetic equipment. The ALJ did not discuss or reference NCD 60-9.

    Matter of Celia C. (NY 1998) awarded Part B benefits for a Light Talker for a 79 year old woman with Lou Gehrig’s disease. The ALJ ruled orally after taking evidence at the hearing. As this went to press, the ALJ’s written decision had still not been issued. [The first three hearing decisions (and fourth, when it is written) are available through the AT Advocacy Project.]

    Our AT Advocacy Project is part of a national effort to address barriers to Medicare funding of ACDs. A national work group includes attorneys and advocates from more than 20 states, including Mary Jo Butler of Idaho and Lew Golinker of Ithaca, New York, the attorneys who represented the individuals in Matter of Richard and Matter of Celia C.

    Since NCD 60-9 is not binding on ALJs, many appeals should succeed if they reach an ALJ hearing. Therefore, we encourage individuals to appeal any denial of coverage and to contact us if they need representation. [An explanation of hearing rights appears in the July-Aug.1997 issue of IMPACT.] If an unfavorable hearing decision is issued, an appeal to the Appeals Council should be considered. Some appeals may need to go into federal court if the Appeals Council rules against a request for funding.

    This topic was summarized in our two-part series, "Private Insurance Contracts and Assistive Technology: Part I" (Nov.-Dec. 1997) and "Part II" (Jan.-Feb. 1998). Except as governed by state or federal law, both the extent of items covered and the administrative appeals available to challenge a denial are governed by the insurance contract.

    To determine if an ACD is covered by an insurance contract, one must obtain a copy of the actual contract and any amendments, supplemental policies and riders. Few policies will refer to an ACD specifically, either as an item that is covered or one that is excluded from coverage. More likely, you will need to look for provisions regarding durable medical equipment (DME), prosthetic devices or appliances, or medical supplies. These provisions are often found in a major medical rider. The policy is also likely to contain language stating that it covers only those items that are medically necessary. It is likely that the language of the DME or prosthetics clauses, for example, will leave open the issue of coverage for the ACD. In that case it is important to remember that the courts have ruled that unclear or ambiguous provisions are to be interpreted in favor of the beneficiary. [See our Jan.-Feb. 1998 issue of IMPACT, at p. 110, on this point.] If funding for an ACD is obtained, most policies will require a copayment, typically 20 percent of the cost.

    If the insurance company denies coverage, consult the policy concerning how to file an administrative appeal. Usually, a letter to the insurance company will do. Our experience is that insurance companies will often reverse their denial of coverage for an ACD if their decision is formally challenged. If the administrative appeal is unsuccessful, the next step would usually be to file a civil action in state court for breach of contract.

    We discussed special education programs in our April 1996 issue of IMPACT, "Obtaining Assistive Technology Through The Public Schools." Under state and federal laws and regulations governing special education, an AT device will be funded if it is needed to ensure that a child benefits from his or her educational program.

    We know of many children who have obtained ACDs through special education funding. When a special education program purchases an ACD, it is recognizing that the ability to communicate through speech is an educational need. If the school does purchase an ACD, it is important that the school also provides training to the child on how to use it and makes sure that the ACD is appropriately programmed. The school’s responsibility for training, programming and repairs should be spelled out on the child’s individualized educational program (IEP). If the school denies approval of the ACD, the parents may request an impartial hearing to challenge the denial.

    Children with disabilities, aged three and four, are often served through a public school’s Committee on Preschool Special Education (CPSE). Although the procedures for obtaining services will be somewhat different from those followed in the regular Committee on Special Education, the criteria that governs a child’s need for services and equipment will be the same. A child will be entitled to an ACD if it is needed to ensure that the child benefits from his or her preschool special education program. If the CPSE denies a request to fund an ACD or any other service, an impartial hearing is available to contest the denial.

    Children with disabilities from birth through age two are often served through the state’s Early Intervention (EI) Program. See Nov.-Dec. 1996 issue of IMPACT, "Obtaining Assistive Technology Through New York’s Early Intervention Program." Like services provided through a special education program, EI services must be provided without regard to the family’s income and resources.

    EI services are provided pursuant to an Individualized Family Service Plan. Among those services available are AT devices and services. An ACD should be available under the EI Program when a child’s speech skills are delayed or nonexistent and use of an ACD will allow the child to communicate. The argument parents may face with EI Programs is that their child is too young to benefit from an ACD. In such cases the evaluation and recommendations of a licensed speech pathologist are critical. If a child is found ineligible for an ACD, the child’s parent(s) may appeal through either a voluntary mediation process or an impartial hearing.

    The Physically Handicapped Children’s Program (PHCP) is an optional program that is unique to New York State. [See May 1996 issue of IMPACT, "The Physically Handicapped Children’s Program."] It is generally operated by a county’s Health Department and will, in most counties, provide funding for medical services and equipment for children under age 21 who have physical disabilities. The State Department of Health reimburses 50 percent of the County’s approved costs.

    Each county sets its own financial eligibility guidelines. Some counties use a "sliding scale" in which families with higher levels of income pay a share of the costs related to the needed services and equipment. In most counties, the financial eligibility threshold is high enough that a family will qualify for PHCP benefits even though their income is much too high to qualify for Medicaid.

    ACDs can be covered by a county’s PHCP if it opts to cover them. This means that the State DOH will provide 50 percent reimbursement to the county if it purchases an ACD. We know of several counties that have paid for ACDs in the past.

    State law and regulations do not require a county appeal process. However, in many counties the PHCP decision maker will consider a letter or phone call which challenges a decision. Many county PHCPs have changed a decision and awarded funding for a service or item of equipment when confronted by the challenge of a parent or advocate. Even in counties where there is no formal appeal process, the PHCP applicant or recipient may appeal the denial in state court once the county’s decision becomes final.

VESID AND THE COMMISSION
FOR THE BLIND

    New York’s Office of Vocational and Educational Services for Individuals with Disabilities (VESID) and Commission for the Blind and Visually Handicapped (CBVH) can fund a wide range of goods and services, including rehabilitation technology (i.e., AT), that are connected to a person’s vocational goal. See March 1996 issue of IMPACT, "Vocational Rehabilitation Agencies: Using VR Dollars to Fund Assistive Technology." Both VESID and CBVH are subject to the same federal laws and regulations governing approval of services.

    An individual who is eligible for VESID or CBVH services will be entitled to funding for an ACD if the device is necessary to allow him or her to obtain, retain or advance in employment. It would also be available if needed to allow the person to complete an approved program of education or training.

    An individual who disagrees with a VESID or CBVH decision may appeal. Generally, the appeal will first be addressed informally within the VESID or CBVH office. If not resolved informally, the individual is entitled to a fair hearing.

    The Supplemental Security Income (SSI) program’s Plan for Achieving Self Support (PASS) was described in our May-June 1997 newsletter, "SSI’s PASS: Where Do Things Stand After 1996 Changes to Policy and Procedure?" The PASS is an income and resource exclusion rule which allows a person to establish SSI eligibility, or increase the level of benefits, when income or resources are used toward a vocational goal. If the proposed use of income or resources is approved, that income/resource will not be counted in determining SSI eligibility.

    An individual who currently receives Social Security benefits, but no SSI, could save for the purchase of an ACD by putting all or part of the Social Security benefits into a dedicated savings account. In most cases, he or she will now be eligible for an SSI check to replace the full amount of money that has been set aside.

    If a person is already receiving some amount of SSI, a PASS will probably not be needed to purchase an ACD. This is because an SSI recipient is automatically eligible for Medicaid. Medicaid, in most instances, should approve funding for an ACD.

    Augmentative communication devices are a form of assistive technology which can have a dramatic impact on the lives of persons with disabilities. Since nearly every facet of a person’s life involves communication with others, the inability to communicate through speech can be devastating. The ACD offers its user the ability to participate more completely in the medical, social, educational and vocational areas of interaction which most of us take for granted.

    This newsletter highlights the potential for obtaining an ACD through 10 different funding sources. Although funding of ACDs may be more common with a funding source such as Medicaid, each of the 10 represents a potential funding source. If space permitted, we could discuss several other potential sources of funding or ways to pay toward the purchase of an ACD, including: the leveraging of money through SSI’s income and resource rules [see IMPACT, Jan.-Feb. 1997]; charities [see IMPACT, March-April 1997]; and use of a Flexible Spending Account to reduce federal income taxes [see IMPACT, March-April 1997, p. 71]. If you are missing any of the older issues of our newsletter, please call Diane Dustin at 716-847-0650 ext. 218 to request copies.

    The 1619-b Medicaid program allows former SSI recipients to continue eligibility for Medicaid when they lose SSI benefits because they receive wages that are too high to continue receiving cash benefits. In New York State, the 1998 SSI benefit rate for a person living alone is $580 per month. When such an individual works, the SSI program will ignore the first $85 in gross wages and reduce their SSI check by $1 for every $2 in gross earnings. When the person’s gross wages reach $1245 per month, they will lose the right to a cash benefit. Despite the person’s loss of cash benefits, he or she can retain Medicaid in many cases under the 1619-b program.

    In mid-October 1998, the Social Security Administration announced the annual income limits governing 1619-b eligibility for New Yorkers during 1998. That annual figure is $28,736. So long as annual income is below $28,736 and other eligibility criteria are met, the individual will remain eligible for automatic Medicaid. If a person has extremely high Medicaid-reimbursable health care costs, including costs for home health care, the annual income allowed may be much higher.

    For a full explanation of the 1619-b eligibility criteria, see Benefits Management for Working People with Disabilities: An Advocate’s Manual (1998), pp.36-37. Order forms for the manual are available from the AT Advocacy Project.

    Twice in the last two months the State has issued a fair hearing decision ruling that the local Department of Health (DOH) erred in denying durable medical equipment that is needed to correct a condition, i.e., the inability to ambulate, which clearly interferes with the capacity for normal activity. Both hearings were held before the same Western New York Administrative Law Judge, James Parwulski, although the actual decisions were rendered under the name of the designee of the State DOH Commissioner.

    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.

Marge is the only person who works full-time on the project. Jim, Bill, Trish and Diane also work part-time with the National AT Advocacy Project.

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