Volume V      Issue 3                                                          LateWinter/Early Spring 2000
Copyright 2000, 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 atproject@nls.org · 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

INTRODUCTION

        Our July-August 1997 issue of IMPACT discussed the availability of Medicare as a funding source for assistive technology (AT). What we refer to as AT has typically been covered by Medicare under its durable medical equipment (DME) or prosthetic devices categories. Subject to reimbursement rates and a 20 percent co-payment, Medicare has routinely covered items such as custom and power wheelchairs, walkers, hospital beds, and many other items. We are also aware of at least seven administrative law judge decisions that have approved funding for augmentative and alternative communication (AAC) devices and one hearing decision that approved funding for a stair glide. Our project has won Medicare appeals involving wheelchairs and an AAC device, and is currently representing one individual who was denied funding for a stair glide. Individuals with disabilities are increasingly looking to Medicare for a wide range of AT devices.

        Medicare is divided into Parts A and B. Part A, known as hospital insurance, covers inpatient care, nursing home care, hospice care, home health services, and DME. For most beneficiaries, there is no premium required to obtain Part A. Part B, known as supplemental medical insurance, covers various outpatient services, including physician services, DME, prosthetic and orthotic devices, and home health services. Depending on what happens in this term of Congress, Medicare may soon start covering prescription drugs. To enroll in Part B, a beneficiary must pay a $45.50 monthly premium. State Medicaid programs may pay the Part B premiums for persons with low income, through either the Qualified Medicare Beneficiaries (QMB) or Specified Low-Income Beneficiary (SLMB) programs.

        Our 1997 newsletter described the criteria for obtaining AT devices through Medicare Part B and discussed the appeals available to challenge denials of coverage. The primary focus of that newsletter was on traditional, fee-for-service Medicare. Although most Medicare recipients receive benefits through the traditional program, an increasing number are now enrolled in various managed care options. This article describes the application and appeals process for individuals seeking an AT device or other services under Medicare managed care.

        Medicare and You 2000, a consumer handbook published by the federal Health Care Financing Administration (HCFA), describes the range of Medicare+Choice (M+C) options and classifies them all under the category of managed care. Since HCFA uses the term managed care to classify all of the M+C options, we will also do so in this article.

        For several years now, Medicare managed care programs have been operated through health maintenance organizations (HMOs). In many parts of the country, including many parts of New York State, they have offered an alternative to traditional Medicare. The Balanced Budget Act of 1997 expanded the number of alternatives to traditional Medicare through what is know as Medicare Part C, the M+C program. Now, every individual entitled to Medicare Part A and enrolled under Part B, except for individuals with end-stage renal disease, may elect to receive benefits through either the existing fee-for-service program or a managed care plan, including one of the new M+C plans.

        All managed care and M+C organizations are required to cover the full range of Medicare benefits that beneficiaries would have been able to receive under the original, fee-for-service program. This means that any of the successful arguments for funding of AT devices, through traditional Medicare, will also apply to the range of managed care or M+C plans. Historically, the attraction of some managed care plans was that they offered coverage for items, such as prescription drugs, not covered by traditional Medicare. This will likely be true for the new range of M+C options, which can offer more, but not less, than is available under traditional Medicare.

        This article will not describe the many new M+C options, the requirements governing how one enrolls in a M+C plan, nor will it discuss the myriad of new federal requirements governing these options. [See 42 C.F.R. Part 422.] An important thing to remember, however, is that a beneficiary who is unhappy with the M+C plan they selected can, subject to some limitations, return to the original Medicare program or select a different M+C plan.

        Note: The new M+C plans, including most Medicare HMOs, are regulated by 42 C.F.R. Part 422. However, some Medicare HMOs, generally “cost contract plans,” continue to be regulated by 42 C.F.R. Part 417. The time frames for decision making and appeals are slightly different under these two sets of regulations. To avoid confusion, the text in this article states the time frames applicable to the majority of managed care plans, as set forth in the Part 422 regulations. Where differences exist, the time frames for decision making and appeals will appear as italicized notes or bracketed text.

        Our 1997 article explained that the traditional, fee-for-service Medicare program has no prior approval process. The application process, in the traditional program, starts when an individual takes delivery of the item. Thereafter, the vendor submits a claim for payment to the private insurance carrier responsible for making Medicare decisions. For Part B claims, the carrier is known as the DME Regional Carrier (DMERC).

        If an individual is enrolled in any of the managed care or M+C plans, including a Medicare HMO, prior approval is available. A prior approval request is submitted directly to the HMO or other entity responsible for administering the M+C plan. Under this system, there is no need to secure payment ahead of time as there is under traditional Medicare. However, under a prior approval procedure, the beneficiary generally must wait without the AT device as the claim goes through the decision making and appeals process.

        A Possible Exception: Some M+C plans may permit plan members to purchase an item or service after a request for prior approval has been submitted and denied. By permitting this, the request to the M+C plan changes from one for "prior approval" to one for reimbursement. It also will allow a plan member to begin receiving the benefits of the requested item while the appeal is pending. Whether an M+C plan member is able take advantage of this opportunity to obtain an AT device while an appeal is pending, and thereby convert a prior approval request into one for reimbursement may be based on the language of the M+C or other managed care plan documents.

        The initial claim will generally consist of two documents: an AT evaluation and funding justification; and a prescription and Certificate of Medical Necessity, prepared by the beneficiary’s treating doctor.

        Generally, these documents will be prepared by health professionals who are not physicians. For example, in the case of a wheelchair, a physical therapist often performs the evaluation and provides the report. In the case of an augmentative communication device, the evaluation and report will be done by a speech language pathologist. These documents will be presented as a report and recommendation to the treating physician.

        The health professional’s funding justification must be submitted to the treating doctor. The doctor must then write a prescription letter, also called a Certificate of Medical Necessity. This written statement explains why the device is needed.

        These documents will provide the information necessary to establish that the recommended device meets the key Medicare criteria for funding approval. Since Medicare HMOs and other M+C plans will be administered by a wide range of insurance companies or similar entities, it is likely that some M+C plans may require that prior approval requests be submitted on specific forms and follow procedures specific to the plan. For this reason, it is important to review HMO handbooks or communicate directly with the HMO to determine the specific procedures that must be followed.

        Initial claims should be submitted directly to the Medicare HMO or to the entity responsible for administering the M+C plan. If they require a specific process for submitting claims, that process must be followed.

        The procedures outlined below will apply to all M+C plans and are governed by the Part 422 regulations. However, since the great majority of managed care recipients are enrolled in Medicare HMOs, the examples will reference the HMO. Where the Part 417 regulations provide different requirements, those are noted. For HMO participants, a claim can travel through five decision making and appeal levels.

        This decision is made by HMO staff who review the claim information. This is an on-paper review, most likely without additional communication with the beneficiary, treating doctor or other health professionals, and without in-person appearances by the beneficiary before, or evaluations of the beneficiary by the HMO staff.

        An initial decision must be made within 14 calendar days after the claim is received. The HMO or M+C organization may extend the time frame by up to 14 calendar days if the beneficiary requests the extension or if the organization justifies the need for additional information. If no decision is issued within the mandated time frame, this failure constitutes an adverse decision and can be appealed. [42 CFR 422.568]

        The beneficiary or his/her physician can request an expedited initial decision. This oral or written request is directed to the HMO or M+C organization. If it is made by the beneficiary, the HMO must provide an expedited determination if it determines that applying the standard time frame could seriously jeopardize the life or health of the beneficiary or his/her “ability to regain maximum function.” If the request is supported by a physician, the HMO must provide the expedited determination “if the physician indicates that applying the standard time frame for making a determination could seriously jeopardize the life or health of the [beneficiary] or the [beneficiary’s] ability to regain maximum function.” Generally, an expedited determination must be made within three days. [The HMO which is subject to Part 417 will have 60 days to make an initial decision and three days to make an expedited decision. Unlike Part 422, there is no mandate in Part 417 for an expedited decision based on a properly worded doctor’s letter.]

        The initial decision will be issued in writing and mailed to the beneficiary. It will state that there is a right to appeal the initial decision. The filing of an appeal is called requesting reconsideration or review. The request for reconsideration must be filed by the Medicare beneficiary or by some other person who is acting on their behalf. Requests for reconsideration must be filed no later than 60 days from the date of the notice of HMO or other M+C organization determination. The beneficiary also must follow the instructions for requesting reconsideration stated in the HMO letter. Generally, the request for reconsideration can be made by filing the written request with the HMO or with a Social Security Administration (SSA) office. It is recommended that correspondence with the HMO or SSA be sent by "certified mail, return-receipt requested."

        In cases involving AT device claims, reconsiderations will involve either a one-step or a two-step process. First, the case will be reviewed again within the HMO or other M+C organization. If that review results in an approval of coverage, the review will end there. If it results in a denial, there will be a second step. Following denial by the HMO, the case will be automatically forwarded to an “independent entity,” the Center for Health Dispute Resolution (CHDR), for an additional review. This second step is automatic: the beneficiary does not have to take any action for it to occur.

        Reconsideration of AT device claims will be based on the documentation in the initial claim. Unless there was a lack of documentation supporting the initial claim or there is now a major change in the beneficiary's condition, there is no need to submit additional information at this step of the process. The HMO’s reconsideration decision must be made within 30 days. The HMO may extend the time frame by up to 14 calendar days if the beneficiary requests the extension or if the HMO can justify the delay. If no decision is issued within the mandated time frame, this failure constitutes an adverse decision and can be appealed. [42 CFR 422.590] If the HMO’s reconsideration results in an adverse decision, it must prepare a written explanation and send the case file within 24 hours to CHDR for the second step of the reconsideration process.

        The beneficiary or his/her physician can request that the HMO make an expedited reconsideration. In considering this request, the HMO must follow the same criteria, listed above, for initial determinations. Generally, an expedited reconsideration determination must be made within three days. [Under the Part 417 regulations, a managed care organization has 60 days to issue a reconsideration decision and three days to issue an expedited decision.]

        The Health Care Financing Administration (HCFA) has contracted with CHDR to serve as the outside independent entity to review and resolve HMO or other M+C organization reconsiderations that uphold the earlier denial of coverage. CHDR’s reconsideration consists of a review of the record, i.e., a review of the documents that were submitted to support the initial request for funding of the AT device.

        The regulations governing CHDR’s review require that it “must conduct the review as expeditiously as the [beneficiary’s] health requires ....” [42 C.F.R. 422.592] The CHDR Medicare+Choice Reconsideration Process Manual is more specific. Section 4.6 of the manual provides that, effective January 1, 1999, CHDR is responsible for completing reconsiderations within the same time frames and standards as apply to HMOs or other M+C organizations. This means that CHDR must render its decision within 30 days or within three days in the case of an expedited decision. [HCFA has also contracted with CHDR to process reconsiderations under the Part 417 regulations. Under Part 417, CHDR automatically reviews the managed care organization’s adverse reconsideration decision. CHDR has 30 days to issue its reconsideration decision and 10 days to issue an expedited decision.]

        As noted above, CHDR’s reconsideration decision will be issued in writing and will be mailed to the beneficiary. If it denies the claim again, the next appeal level is the administrative law judge (ALJ) hearing. [Both the Part 422 and the Part 417 regulations have identical requirements governing ALJ hearings, Departmental Appeal Board review, and judicial review.]

        Written requests for ALJ hearings must be filed no later than 60 days from the date of the reconsideration decision. In addition, the Medicare payment being sought must be $100 or more. The beneficiary may request an ALJ hearing by writing to the address stated in CHDR’s decision. Requests for ALJ hearings also can be filed with the Social Security Administration office nearest the beneficiary's home. We recommend that correspondence requesting an ALJ hearing be done by "certified mail, return-receipt requested."

        The hearing is conducted by an ALJ who is not associated with an HMO, other M+C organization, or CHDR. The hearing can be on the record (an on-paper review) or it can be an in-person proceeding. The beneficiary, family members, treating doctor and/or other health professionals can all describe, directly to the ALJ, the characteristics and impacts of the individual’s disability; the treatments considered; and how the specific device being recommended will meet the individual’s needs. Additional information can be submitted, both through documents and oral statements at the hearing. The likelihood of a favorable ALJ decision is greatly enhanced if the beneficiary is represented by an attorney or other advocate.

        Unfortunately, there are no time limits for an ALJ to schedule a hearing, or to issue a decision after a hearing. However, beneficiaries and their advocates should explain in their hearing request letter that -- unlike typical Medicare claims -- the beneficiary in this appeal does not yet have access to the requested device and instead is still waiting for access to an essential device or treatment. These remarks should be for the purpose of requesting that the hearing be held as soon as possible. It is not possible to estimate precisely when a hearing will be conducted or when the ALJ decision will be issued. A fair estimate is that the hearing will be held six to nine months after the request is filed, and the decision will be issued two to three months later.

        Beneficiaries are urged to strongly consider an ALJ appeal if their claim is denied through the reconsideration level of appeal. In some cases, the ALJ will not be bound by more restrictive Medicare policies that govern earlier decisions. For example, an ALJ is not required to follow certain National Coverage Decisions which would otherwise bar HMOs from approving coverage for specific devices.

        If the ALJ decision denies funding for the AT device, a beneficiary may request review by the Departmental Appeal Board. Requests for Appeal Board review must be filed no later than 60 days after the ALJ decision is received. As with the ALJ hearing, the Medicare reimbursement in dispute must be $100 or greater.

        Appeal Board review is conducted by reviewing all the documents supporting the claim, as well as the testimony given at the hearing. In almost all cases, the advocate or attorney will submit a memorandum of law (or letter brief) explaining why the ALJ decision is incorrect. This will have to be done on a case-by-case basis. Unless some significant new fact or circumstance arises, in general, there is no opportunity to submit new information at this level of appeal.

        We cannot estimate precisely when the Appeal Board will issue its decision. A fair estimate is that the decision will be issued six to nine months after the request is filed. Because each appeal will be case-specific, it is not possible to predict whether the Appeal Board decision will be favorable or unfavorable. In general, however, beneficiaries should not expect these decisions to be favorable, and beneficiaries must pursue the final appeal option, judicial review.

        The final appeal available to Medicare beneficiaries is an appeal to the federal courts. This is a step that technically can be, but as a practical matter never should be, pursued without an attorney. Requests for judicial review must be filed no later than 60 days after the Appeal Board decision is issued. In addition, the Medicare reimbursement being sought must be $1,000 or greater. Beneficiaries should not assume their claims are weak solely because they face the prospect of a court appeal.

        This article has provided a summary of the application and appeals process that will be followed under Medicare managed care when a beneficiary seeks funding for an assistive technology device. If the reader has more specific questions about Medicare funding, we urge you to call us at the New York AT Advocacy Project.

NOTE: This article is excerpted from a 23-page booklet, “Medicare, Managed Care and AAC Devices: Funding Augmentative and Alternative Communication (AAC) Devices Through Medicare - The Decision Making and Appeals Process for HMO and Other Medicare+Choice Participants,” (December 1999) a joint effort of the national United Cerebral Palsy Associations and our National AT Advocacy Project. This booklet, and an earlier booklet on funding of AAC devices through the traditional Medicare program, were both co-authored by Jim Sheldon of our project and attorney, Lew Golinker, of Ithaca, New York. Copies of the booklets can be obtained by calling Diane Dustin at 716-847-0655 ext. 218.

HCFA DECISION WILL MAKE IT EASIER TO
GET MEDICARE APPROVAL FOR AAC DEVICES

On April 26, 2000 the federal Health Care Financing Administration (HCFA) issued a “Memorandum Decision” in which it withdrew a longstanding policy which had made it impossible to obtain funding for augmentative and alternative communication (AAC) devices unless the Medicare beneficiary appealed the case to an administrative law judge hearing. The policy in question, part of National Coverage Decision 60-9, currently states that AAC devices are convenience items and do not meet the definition of durable medical equipment (DME). HCFA’s decision withdraws that policy, effective January 1, 2001, and provides that AAC devices meet the DME definition.

DECISIONS OF INTEREST
New York Court Orders Medicaid to Fund Swimming Pool Lift

In Matter of Charles M. (3/27/00), a Medicare administrative law judge (ALJ) from Buffalo has ordered a managed care plan to fund a Dynamite 3100 augmentative and alternative communication device for a man diagnosed with amyotrophic lateral sclerosis (ALS), finding that this device meets the requirements as durable medical equipment and a prosthetic device. This is only the seventh ALJ decision identified, nationwide, in which an AAC device has been approved for Medicare funding. Attorney, Ron Hager of Neighborhood Legal Services represented the claimant under our Protection and Advocacy for Individual Rights (PAIR) program.

        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.

_ Highlights of AT-Related Hearing Decisions and Court Decisions

_ Special Medicaid Eligibility Rules for Persons with Disabilities

— The American with Disabilities Act (ADA) and AT

— The New York AT Advocacy Project: An Update on Resources Available

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