MEDICARE FUNDING OF ASSISTIVE TECHNOLOGY
Copyright  2004 Neighborhood Legal Services, Inc. & Arizona Center for Disability Law.  All rights reserved.

James R. Sheldon, Jr., Supervising Attorney
National Assistive Technology Advocacy Project
Neighborhood Legal Services, Inc.
295 Main Street, Room 495
Buffalo, New York 14203
716-847-0655 ext. 262, 0227 (fax), 1322 (tdd)
jsheldon@nls.org * www.nls.org

Sally Hart
Staff Attorney
Center for Medicare Advocacy &
Arizona Center for Disability Law
100 North Stone Avenue, Suite 305
Tucson, AZ 85701
520-327-9547 Voice/TDD
800-922-1447 Voice/TTY(nationwide)
520-884-0992 Fax
shart@acdl.com
www.medicareadvocacy.org
www.acdl.com (Ariz. Ctr. for Disability Law)

 

  1. Resources to Support Your Medicare Work
    1. The law, regulations and policy
      1. Social Security Act, Title 18, 42 U.S.C. '' 1395 et seq.
      2. Center for Medicare and Medicaid Services (CMS) regulations, 42 C.F.R. Parts 405-424.
      3. CMS Manuals
        1. Available through the CCH Medicare-Medicaid Guide or through CMS=s Medicare website, www.medicare.gov (go to www.cms.hhs.gov/manuals to locate manuals)
        2. The ACoverage Issues Manual,@ governing durable medical equipment and prosthetic device decisions: www.cms.hhs.gov/manuals/06_cim/ci00.asp (then go to section 60).
      4. Durable Medical Equipment Regional Carrier (DMERC) Manuals for four regional DMERCs
        1. HealthNow (Region A): www.umd.nycpic.com/dmerc.html (then select publications).
        2. Associated Insurance Companies, Inc. - AdminaStar (Region B): www.adminastar.com (see specifically, www.adminastar.com/Providers/DMERC/DMERC.html)
        3. Palmetto GBA (Region C): www.palmettogba.com (then select manuals)
        4. CIGNA Health Care (Region D): www.cignamedicare.com (then select publications)
    2. Books, articles, other reference materials (most are available through the National AT Advocacy Project)
      1. In general
        1. Medicare: A New Priority for Assistive Technology Advocates, AT Advocate newsletter (National AT Advocacy Project June-July 1997). This will very soon be replaced by an updated newsletter.
        2. Judith A. Stein & Alfred J. Chiplin, 2003 Medicare Handbook (A Panel Publication, Aspen Publishers, Inc.)(2003).
      2. Specific to augmentative and alternative communication (AAC) devices

        3. Medicare Withdraws AAC Device Non-Coverage Decision, AT Advocate (newsletter of National AT Advocacy Project), April-May 2000 (available at www.nls.org/av/av-0400.htm).

      3. General Accounting Office (GAO) reports
        1. Since 1993, the GAO has issued more than a dozen Medicare-related reports, including several related to AT issues.
        2. How to order GAO reports
          1. By mail: U.S. General Accounting Office, P.O. Box 37050, Washington, D.C. 20013.
          2. GAO web page (the best way to quickly access this information): www.gao.gov. You can order one free copy of any GAO report by completing an order form on their web page.
    3. Medicare-related web sites
      1. CMS sites: general site - www.cms.gov; Medicare consumer information site - www.medicare.gov
      2. Center for Medicare Advocacy site - www.medicareadvocacy.org
      3. National Health Law Project site - www.healthlaw.org
      4. National Senior Citizens Law Center - www.nsclc.org
      5. National AT Advocacy Project - www.nls.org/natmain.htm
    4. A National Work Group on Funding of AT
      1. Meets approximately eight times per year by teleconference. Meetings last 60 to 90 minutes and are run by the National AT Advocacy Project.
      2. Participation is now at no cost to participants.
      3. A forum to discuss and get input from others in group on ongoing cases related to AT (or DME as referenced by most funding sources).
      4. Contact Jim Sheldon at 716-847-0650 ext. 262 or jsheldon@nls.org if you would like to join us.
  2. What is Medicare?
    1. A federal health insurance program for persons over 65 and persons with disabilities.
    2. Medicare Part A
      1. Known as Hospital Insurance
      2. Covers inpatient care, skilled nursing facility care, hospice care, home health services, and durable medical equipment.
    3. Medicare Part B
      1. Known as Supplemental Medical Insurance
      2. Covers various outpatient services, including physician services, durable medical equipment, prosthetic devices, orthotic devices, and home health services.
    4. Medicare Part C
      1. Formerly known as Medicare + Choice this Part will soon be called Medicare Advantage or AMA@. Note: the official federal name for Medicaid is Medical Assistance and in some states they often just call it AMA.@
      2. Authorizes a variety of alternative private medical insurance and delivery systems, including -- primarily -- managed care health maintenance organizations (HMOs), but also medical savings accounts (MSAs), private fee for service plans, and (new in 2006) regional preferred provider organizations (PPOs).
      3. The substantive discussion contained in this outline (e.g., What criteria govern the approval of a power wheelchair?) applies to both traditional Medicare and Medicare HMOs. An HMO plan can provide more than traditional Medicare; it cannot provide less.
    5. Medicare Part D
      1. Known as the Prescription Drug Plan or APDP@.
      2. Authorizes private prescription drug insurance that will be voluntary for Medicare beneficiaries starting in 2006. (For updates on the implementation of this new program, check the Center for Medicare Advocacy=s website: www.medicareadvocacy.org/Materials_MainPage.htm.
    6. Premiums, deductibles and co-payments
      1. Part A coverage is generally automatic and not subject to a premium payment. Part B is optional and requires premium payment.
        1. For those required to pay a Part A premium [See 42 U.S.C. ' 1395i-2(d)]
          1. The 2004 premium is $189 for people having 30-39 quarters of Medicare-covered employment.
          2. The 2004 premium is $343.00 per month for people who are not otherwise eligible for premium-free hospital insurance and have less than 30 quarters of Medicare-covered employment.
        2. The 2004 Part B premium is $66.60 per month.
          1. State Medicaid programs may pay these premiums for low-income individuals.
          2. Most voluntary enrollment of this type happens through the buy-in program for Qualified Medicare Beneficiaries (QMB) or Selected Low-Income Medicare Beneficiaries (SLMB). The QMB and SLMB programs allow 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).
      2. Deductibles and co-payments apply to some covered services. 42 U.S.C. ' 1395e. The 2004 deductible and co-insurance amounts include:
        1. Part A: For each benefit period the Medicare beneficiary pays:
          1. A total of $876 for a hospital stay of 1-60 days
          2. $219 per day for days 61-90 of a hospital stay
          3. $438 per day for days 91-150 of a hospital stay (Lifetime Reserve Days)
          4. All costs for each day beyond 150 days
        2. Part A, Skilled Nursing Facility Coinsurance: $109.50 per day for days 21 through 100 each benefit period.
        3. Part B: $100.00 per year (The beneficiary pays 20 percent of the Medicare-approved amount for services after meeting the $100.00 deductible.)
      3. Costs for beneficiaries who voluntarily enroll in a M+C or (now) MA alternative to traditional fee for service Medicare vary among the plans that are offered, but always include at least the Part B premium.
      4. The new Prescription Drug Plans will charge a monthly premium to those who chose to enroll, which is estimated to be approximately $35 per month in the first year, 2006.
        1. There will be an annual deductible of $250.
        2. There will be 25 % cost sharing on costs for formulary drugs from $251 - $2250; no coverage for costs from $2251 - $5100 (the doughnut hole); and a 5 % copayment on the catastrophic coverage of drug costs exceeding $5100 per year.
    7. Traditional Medicare and Medicare HMOs
      1. Most recipients are part of the Atraditional@ or Afee-for-service@ system.
      2. Other recipients are enrolled in a managed care plan through a Medicare health maintenance organization (HMO).
      3. The substantive discussion contained in this outline (e.g., What criteria governs the approval of a power wheelchair?) applies to both traditional Medicare and HMO plans. An HMO plan can provide more than traditional Medicare; it cannot provide less.
      4. The procedural discussion contained in this outline (e.g., How does one apply for coverage of a wheeled walker? How does one appeal a denial of coverage?) may differ depending on whether one is enrolled in traditional Medicare or an HMO plan.
  3. Medicare Eligibility
    1. Medicare is almost universal for U.S. residents age 65 and older.
      1. 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.
      2. 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.
      3. Medicare also covers individuals under age 65 who:
        1. Have received 24 months of Social Security Disability Insurance (SSDI) benefits, or 24 months of Railroad Retirement disability benefits [42 U.S.C. ' 426(b)]; or,
        2. Have End-Stage Renal Disease, 42 U.S.C. '' 426-1, 1395c, 1395rr, i.e., a kidney impairment that requires regular dialysis or kidney transplantation to maintain life. 42 C.F.R. ' 406.13(b).
        3. NOTE: For persons diagnosed with amyotrophic lateral sclerosis (ALS), sometimes called Lou Gehrig=s disease, there is no 24-month waiting period.
      4. 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. Id. ' 406.6(b). All others must file an application. Id. ' 406.6(c).
    2. Medicare has no income or resource rules.
      1. Unlike Medicaid, Medicare recipients need not have limited income and resources.
    3. What happens to a Medicare recipient when an SSDI recipient works?
      1. 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 $810 monthly in 2004 (or $1,350 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.
      2. Medicare eligibility continues throughout the trial work period and EPE. Thereafter, if the person earns less than $810 monthly and SSDI benefits continue, Medicare benefits will likewise continue under normal rules.
      3. Under extended Medicare benefit provisions, as liberalized under the Ticket to Work and Work Incentives Improvement Act of 1999, Medicare coverage can continue under normal rules (Part A, cost free; Part B optional and subject to premium payment) for at least 93 months following the SSDI trial work period, even if SSDI benefits have been terminated because of earnings. 42 U.S.C. ' 426(b). Thereafter, the person can continue Medicare eligibility by paying a special premium. 42 U.S.C. ' 1395i-2a.
      4. For more information on this topic, see James R. Sheldon, Jr., Work Incentives for Persons with Disabilities Under the Social Security and SSI Programs, Clearinghouse Rev. (March-April 2002), www.nls.org/work_incentives.htm or www.nls.org/pdf/work_incentives.pdf; 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).
  4. What is Covered? What is Excluded?
    1. Statutory exclusions
      1. The Medicare law specifically excludes major categories of services, including routine doctor visits (except one physical examination upon enrollment in Part B), 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).
    2. Medicare=s Medical Necessity Test
      1. 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).
      2. The quoted language is the basis for Medicare's so-called "medical necessity" test.
    3. National Coverage Decisions
      1. CMS, 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), reprinted as updated in 5 CCH Medicare & Medicaid Guide, &27,201, &27,211 and &27,221.
      2. The Coverage Issues Manual is broken down into sections. For example, section 60 addresses durable medical equipment (DME); section 65 addresses prosthetic devices. These manuals are now on the CMS website (see, e.g., www.cms.hhs.gov/manuals/06_cim/ci60.asp, a link to section 60).
      3. 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 (however, see discussion below, regarding the recent DMERC initiative to strictly enforce a restrictive policy clarification on power wheelchairs); a transcutaneous electrical nerve stimulator (TENS) is covered under ' 65-8].
      4. Other rules specifically exclude coverage [e.g., a white cane for the blind is excluded under ' 60-3; coverage of an augmentative communication device was, prior to January 2001, excluded under ' 60-9 (see discussion, below)].
      5. NCDs will often be referenced by Medicare decision makers when they approve or deny coverage.
      6. The binding effect of NCDs on various Medicare decision makers is spelled out in 42 U.S.C. '' 1395ff(c)(3)(B)(1) and 1395ff(f).
        1. An NCD is binding on all Medicare Durable Medical Equipment Regional Carriers (DMERCs) and HMOs when it is published in HCFA program manuals or the Federal Register.
        2. In the past, an NCD was only binding on administrative law judges (ALJs) when it has been promulgated under section 1862(a)(1) of the Social Security Act, 42 U.S.C. ' 1395ff(b)(3)(A).
          1. Under the recent statutory amendments, all NCDs are now considered binding on ALJs.
          2. Accordingly, many of the old hearing decisions in which ALJs were able to ignore NCDs (e.g., when there was an NCD that forbid funding of AAC devices) are probably no longer valid statements of the current law.
        4. Using the Medicare Coverage Issues Manual and the National Coverage Decisions (NCDs) to your advantage:
          1. Sometimes an NCD may help you obtain funding for an AT device.
          2. For example, many items are specifically listed as covered under one of the NCDs.
            1. A power wheelchair is covered under ' 60-5 if it is medically necessary and the person cannot operate a manual wheelchair (but see discussion below regarding recent DMERC policy clarification).
    4. Local Coverage Determinations
      1. CMS requires its contractors (formerly known as intermediaries and carriers) to adopt Local Coverage Determinations (LCDs) to be applied in the geographic areas that they administer. Sometimes called Local Medical Review Policies (LMRPs), these LCDs are based on 42 U.S.C. ' 1395y(a)(1)(A) which prohibits coverage of items and services Anot reasonable and necessary@. 42 U.S.C. ' 1395ff(f)(2)(B).
      2. Medicare contractors have adopted more than 9,000 LCDs under this mandate, and they play an important role in electronic claims processing.
      3. The four Durable Medical Equipment Regional Carriers (DMERCs) who process claims for Durable Medical Equipment each have their own manuals with the LCDs applied to such claims.
      4. The binding effect of LCDs is spelled out in the Medicare statute at 42 U.S.C. ' 1395ff.
        1. LCDs are binding on the QICs who will soon perform the review/reconsideration level in Medicare appeals. 42 U.S.C. ' 1395ff(c)(3)(B)(I).
        2. LCDs are not binding at the ALJ stage of appeals. 42 U.S.C. ' 1395ff(f), although they might be given some deference.
      5. Using the LCDs to your advantage:
        1. In an appeal, request a copy of any LCD that might have been the basis for a denial decision. Under a settlement agreement in Erringer v. Thompson, CV 01-112 TUC BPV (D.Ariz. filed 2001), Medicare has agreed to revise its denial notices to inform beneficiaries when a LCD was used, and to send them copy of the LCD upon request.
        2. Often the LCD does not absolutely prohibit coverage, but spells out the circumstances under which a service will be covered. You can submit additional evidence showing that the required circumstances were present to win an appeal.
    5. A new process for obtaining review of the validity of NCDs and LCDs without going to court has recently been established. 42 U.S.C. ' 1395ff(f); 42 C.F.R. '' 426.100 - 426.587. This is in addition to the ability of an individual to challenge an NCD or LCD in the course of the regular appeal process.
      1. The review process begins by the filing of a written Acomplaint@ by an aggrieved party with the Departmental Appeals Board (DAB) for NCDs, and with the office designated by CMS on its website, www.medicare.gov/coverage/static/appeals.asp, for LCDs.
        1. If filed before the requested service has been received, it must be accompanied by a written statement from the aggrieved party=s treating practitioner.
        2. If filed after the requested service has been received, must be within 120 days of the initial denial notice.
      2. NCDs will be reviewed by the Departmental Appeals Board, while LCDs will be reviewed by Administrative Law Judges.
        1. The aggrieved party may submit additional evidence to show that the particular NCD or LCD at issue should be modified.
        2. The decision-maker may independently consult scientific and clinical experts, and may order discovery.
        3. The standard of review is whether the NCD or LCD is Areasonable@ based on the record.
      3. If the decision maker concludes that a coverage rule is not Areasonable@ the rule at issue can no longer be applied to the aggrieved party=s claim and to the claims of other beneficiaries. The decision maker cannot order that any language be added to a coverage rule.
      4. Decisions in these review processes are appealable by the aggrieved party, the Medicare contractor, and CMS.
  5. Coverage of Assistive Technology Under Medicare
    1. 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.
    2. 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).
      1. 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.
    3. 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).
        1. 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.
        2. 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.
    4. 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.
        1. 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).
        2. 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."
    5. Coverage of augmentative and alternative communication (AAC) devices under the DME category:
        1. Background
          1. Historically, until January 1, 2001, the CMS Coverage Issues Manual, ' 60-9 (or NCD 60-9) provided that these devices could not be approved as they were considered convenience items.
          2. This created a very practical problem for the majority of Medicare recipients who are enrolled in the traditional (i.e., non managed care) Medicare program. Since a prior approval decision was not available to them, they could not even obtain an initial decision until they took delivery of the AAC device, by either agreeing to pay for it or by having a vendor agree to accept assignment (i.e., agree to accept what Medicare approved as payment, less a 20 percent recipient co-payment).
          3. This explains why so few cases ever made it the ALJ hearing level, where the success rate was nearly 100 percent (18 wins, one denial recently overturned, of cases known to have gone that far). Even the successful cases took two to four years to go through all appeals, reach the ALJ level, and receive a favorable ALJ decision. A significant number of those older cases were handled by P&A attorneys/advocates or by our friend, Lew Golinker of the AT Law Center in Ithaca, NY.
          4. The AAC cases were nearly always winners at the ALJ level because the ALJ was not bound by the NCD 60-9 policy governing AAC devices.
        2. In November 2000, the Health Care Financing Administration (now renamed as CMS) issued new NCD 60-23, establishing that AAC devices are, effective January 1, 2001, considered to fall within the DME benefit category as "Speech Generating Devices."
          1. The new NCD, as written, covered many of the AAC devices on the market and promised to open the door (and has opened the door) to approval of funding without the need to appeal.
          2. However, the new NCD 60-23 precluded coverage of "non-dedicated device" (e.g., devices such as laptop computers that are simultaneously capable of also running software for purposes other than speech generation).
          3. This dedicated device issue has been resolved by allowing those devices to be approved so long as the non-speech producing functions (e.g., word processing, internet access, etc.) are not working or disabled prior to sale. As a practical matter, the end user (or Medicare recipient) can purchase a kit to enable the other functions to work.
        3. A pre-2001 AAC device denial and post-2001 appeal decided favorably by Departmental Appeal Board (DAB)(as reported by Lew Golinker).
          1. On March 2, 2004, the DAB reversed that ALJ decision, and awarded a fully favorable decision to the appellant. Thus, every Medicare beneficiary between 1993-2001 who was able to purchase an AAC device and then pursued a claim and appeals for reimbursement, was successful.
          2. The DAB decision is very short, but its operative paragraph confirms the correctness of everything our network of advocates did regarding Medicare. AAC devices always fit the Medicare definition of DME and, therefore, never should have been excluded. The DAB wrote:

      "Advances in modern electronic hardware and software have produced devices with capabilities far in excess of those available only ten or twenty years ago. We have independently applied the long standing criteria for DME and conclude that the device at issue met the definition of DME when furnished. Moreover, consistent with the present criteria for coverage of [a Speech Generating Device], it is clear that it would have been covered for this beneficiary under the current, more detailed standards as well. Accordingly, we find that the SGD at issue was covered as DME and was medically necessary for [ ] when furnished." In re: P.M., o/b/o JM (deceased), Dkt No. 999-15-7712 Slip Op. at 3 (US Dept. of HHS, Departmental Appeals Board)(March 4, 2004).

    6. Coverage of power wheelchairs under the DME category - - December 2003 DMERC Power Wheelchair Policy Clarification, Reactions to It, and the Subsequent Rescission of the Clarification
        1. Background
          1. The Medicare regulations provide a four-part definition for durable medical equipment. Part 4 of the definition requires that DME Ais appropriate for use in the home.@ 42 C.F.R. '' 410.38, 414.202.
          2. The Medicare Coverage Issues Manual 60-9, issued by the federal Centers for Medicare and Medicaid Services (CMS), states that Medicare will cover a wheelchair if the patient=s condition would otherwise confine him or her to a bed or chair. A power wheelchair is covered if the patient is unable to operate a wheelchair manually.
          3. With this as the policy, many individuals have obtained power wheelchairs funded through Medicare as DME.
          4. In 2003, the CMS Office of Inspector General issued a 10-point initiative called AOperation Wheeler Dealer@ to curb fraud and abuse of the Medicare power wheelchair benefit.
        2. December 2003: The policy clarification from the four DMERCs
          1. The DME regional carriers oversee the Medicare program as contractors of the federal agency. They also develop LCDs, described above, to implement federal Medicare law and regulation.
          2. In December 2003, the four DMERCs announced a clarification of the local review policy for power wheelchairs and the adoption of Aa consistent approach@ to medical review of power wheelchair claims.
          3. Here is an excerpt from that policy:

            4. AIf a patient can only bear weight to transfer from a bed to a chair or wheelchair, the patient is considered nonambulatory. However, if the patient is able to walk either without any assistance or with the assistance of an ambulatory aid, such as a walker, the power wheelchair is denied as not medically necessary. If the patient is nonambulatory and qualifies for a wheelchair, a power wheelchair is covered only if the patient is unable to self-propel a manual wheelchair within their home. Medicare coverage of durable medical equipment is limited to items that are necessary for use within the home. Although a power wheelchair may be useful to allow the beneficiary to move extended distances, especially outside the home, Medicare statute and national policy do not currently provide coverage solely for those uses.@

          4. Early indications were that all four regional DMERCs would be interpreting this policy very strictly.
        3. Reactions to the policy
          1. Posted on the internet, 2/29/04: AFive companies have committed at least $250,000 to lobby against Medicare=s policy ....@ The five companies:
            1. Invacare
            2. Sunrise Medical
            3. The Scooter Store
            4. Pride Mobility
            5. Mobility Products Unlimited
          2. Letter from the ITEM Coalition (Independence Through Enhancement of Medicare and Medicaid), dated 1/23/04
            1. Available at: www.itemcoalition.org/press/thompson_ltr.html
            2. Highly critical of defacto change in policy, urging either rescission or issuance of proposed policy for public comment.
        4. CMS retracts the new policy
          1. Following the December 2003 issuance of the policy guidance and the subsequent uproar in the vendor and disability communities, on March 19, 2004 CMS issued a statement specifically rescinding the policy guidance that had been issued by the DMERCs.
          2. The following is an excerpt from a memo sent to key Congressional staff persons from Amelia Steed, a Congressional Liaison within CMS:

    AI know that many of you have inquired with concerns regarding power wheelchairs and a recent bulletin which suppliers have asserted represents a change in CMS policy. Accordingly, I wanted to let you know that CMS has decided to retract the December 9, 2003 Durable Medical Equipment Regional Carrier (DMERC) Article which was intended to reiterate our coverage policy on power wheelchairs. The coverage policy remains unchanged from when it was originally put into place in 1985. CMS will continue to pay claims as it has prior to and following the issuance of the December 9, 2003 DMERC Article.

    We are taking this action in response to concerns voiced by the power wheelchair community which were brought to the agency's attention through our Open Door Forums and Listening Sessions held in February and March. We will be providing more information on additional action steps that will soon follow. Specifically, CMS is planning to issue a press release shortly which will review the eight primary themes garnered from the multiple Listening Sessions and Open Door Forums on this issue, and will provide CMS' response to the issues raised. In addition, we will soon hold a follow-up Open Door Forum at which all four Medical Directors from the DMERCs will be present. We will continue to keep you updated as we have additional information. If you have questions, please contact Tricia Rodgers (690-5445) on my staff. Thank you.@

  6. Suggested Sequence for Analyzing AT Case Under Medicare

    7. To determine an individual's potential eligibility for Medicare-funded AT, we suggest the following sequence of analysis:

    1. Determine if person is eligible for Medicare Part A and optional Part B coverage (steps could be taken to voluntarily enroll person). Generally, you will be looking to Part B to fund the AT device.
        1. Determine if the person is eligible through traditional, fee-for-service Medicare or through a managed-care HMO plan.
    2. Determine if device is specifically excluded from Medicare coverage by statute.
    3. Determine what categories of Part A or Part B coverage device potentially falls under (e.g., DME or prosthetic devices category).
        1. If person is enrolled in a managed care plan, obtain contract to determine if it offers services in addition to those offered by traditional Medicare.
    4. Determine whether a National Coverage Decision exists which addresses the device. If NCD would preclude coverage:
        1. If the NCD would preclude coverage, does it leave open the possibility for coverage under a second category (e.g., if an NCD addresses only the DME category, this may leave open possible coverage as a prosthetic device)?
        2. Consider challenging the NCD if it appears to be more restrictive than the Medicare statute, either through the usual individual appeals process or through the new process for reviewing coverage rules (see IV.E, above).
    5. Determine whether a Local Coverage Determination exists which addresses the device. If so:
        1. Obtain a copy of the LCD. This can be done by requesting a copy from the DMERC, or by searching the DMERC=s website. Try www.cms.gov/coverage/lmrp_contractors_index.asp.
        2. Determine whether the item or service could be covered under the terms of the LCD with the submission of some additional evidence.
        3. Consider challenging the LCD if it appears to be more restrictive than the Medicare statute, either through the usual individual appeals process or through the new process for reviewing coverage rules (see IV.E. above).
    6. Determine whether device is medically necessary.
  7. Processing Medicare Claims for AT
    1. Traditional, fee-for-service Medicare
      1. Unlike Medicaid, there is no Medicare prior-approval process for recipients enrolled in the traditional program.
      2. With Medicare, the application process starts when the individual or patient takes delivery of the item as a purchase or rental.
        1. Thereafter, the vendor submits a claim for payment to the insurance carrier:
          1. In the Part A context the carrier is known as a Fiscal Intermediary.
          2. In the Part B context, there are special contractors who handle claims for DME known as Durable Medical Equipment Regional Carriers (DMERCs) as designated in 42 C.F.R. ' 421.210.
            1. In Region A the DMERC is Health Now which covers the following states: Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, and Delaware.
            2. In Region B the DMERC is AdminaStar Federal which covers the following states: Maryland, the District of Columbia, Virginia, West Virginia, Ohio, Michigan, Indiana, Illinois, Wiconsin and Minnesota.
            3. In Region C the DMERC is Palmetto which covers the following states: North Carolina, South Carolina, Kentucky, Tennessee, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, Oklahoma, New Mexico, Colorado, Puerto Rico and the Virgin Islands.
            4. In Region D the DMERC is CIGNA which covers the following states: Alaska, Hawaii, American Samoa, Guam, the Northern Mariana Islands, California, Nevada, Arizona, Washington, Oregon, Montana, Idaho, Utah, Wyoming, North Dakota, South Dakota, Nebraska, Kansas, Iowa and Missouri.
          3. This discussion will emphasize the process involving Part B claims.
        2. 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.
          3. Vendors will typically accept assignment for items which are routinely approved by the DMERC, like hospital beds.
          4. 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 stair glides and many other items under the DME category.
          5. 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.
    2. Managed Advantage plans, including primarily managed care, must generally provide the same package of benefits as is available under traditional fee-for-service Medicare in their regions. 42 U.S.C. ' 1395w-22(a)(1).
      1. For managed care there is a prior approval process.
      2. The request for Medicare funding would be submitted to the HMO for approval.
    3. Paperwork to support the claim for funding
      1. Evaluation and funding justification report, prepared by the appropriate health professional. (E.g., if seeking an AAC device, the report would be prepared by a speech-language pathologist; if seeking a power wheelchair, the report(s) might be prepared by a physical therapist or occupational therapist.)
      2. Doctor=s prescription and ACertificate of Medical Necessity,@ prepared by the beneficiary=s treating doctor.
      3. With traditional Medicare claims, there must be proof of purchase or rental of the item in question.
      4. For managed care cases, the HMO may have some of its own paperwork requirements.
      5. All of this paperwork must be gathered by or provided to the equipment vendor. The vendor will then forward it to the DMERC (traditional Medicare) or to the HMO (managed care).
    4. Time frame for initial decision
      1. An initial decision on a Part B claim must be made within 60 calendar days after the claim is received. 42 C.F.R. ' 405.802.
      2. If no decision is issued within 60 days, the beneficiary can immediately request a carrier hearing, skipping reconsideration. 42 CFR ' 405.801(a).
  8. Medicare Appeals
    1. 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.
    2. Traditional Medicare

      3. For Part B, the decision making and appeal process outside managed care will follow this sequence [42 C.F.R. '' 405.801 et seq.]:

      1. Notice of initial decision [' 405.804] - The written notice shall inform the party of the right to have such determination reviewed.
      2. Reconsideration or right to carrier review [' 405.807-812] - The regulations refer to the DMERC as the Acarrier.@
        1. The beneficiary has six months from the date of an adverse initial decision to request this review.
        2. The carrier=s written notice of review determination must state the basis of the determination and advise the party of the right to a carrier hearing.
      3. Carrier hearing [' 405.815, 821-836]
        1. The reimbursement being sought must be at least $100.
        2. The beneficiary has six months from the date of the adverse review determination to request a carrier hearing. The request must be filed at an office of the carrier or at an office of SSA or CMS.
        3. The carrier may, upon the request of the party affected, extend the period for filing the request for hearing.
      4. Administrative Law Judge (ALJ) hearing [' 405.855]
        1. The reimbursement being sought must be at least $500
        2. The beneficiary has 60 days from the date of the adverse carrier hearing decision to request an ALJ hearing.
      5. Departmental Appeal Board review [' 405.856]
        1. These appeals are governed by the Social Security regulations regarding Appeals Council review. See 20 C.F.R. '' 404.967 et seq.
        2. The reimbursement sought must be at least $500.
        3. The beneficiary has 60 days from the date of the adverse ALJ decision to request Appeal Board review. 20 C.F.R. ' 404.968.
      6. U.S. District Court review [' 405.857]
        1. The reimbursement sought must be at least $1,000.
        2. The court appeal is filed in accordance with 42 U.S.C. ' 405(g) which governs Social Security appeals.
        3. The beneficiary has 60 days from the date of the adverse Appeal Board decision to request file a court action.
    3. Under managed care, the appeals process is somewhat different. See 42 C.F.R. '' 422.564.
      1. Notice of adverse decision [' 422.564]
        1. The regulation refers to this as an Aadverse organization determination.@ Failure to provide timely notice (i.e.,within 14 days of a request for services or 30 days of a request for payment) is an adverse decision and may be appealed.
      2. Right to Reconsideration
        1. The beneficiary has 60 days from the date of the notice of the organization determination to request a reconsideration. ' 422.582.
        2. If the MA reconsideration decision is not entirely favorable to the beneficiary, the appeal will be automatically forwarded to an independent review contractor, the Center For Health Care Dispute Resolution (CHDR) for a further reconsideration. ' 422.592.
      3. Right to an ALJ hearing [' 422.600]
        1. The reimbursement being sought must be at least $100.
        2. A request for hearing must be filed within 60 days of the date of the notice of reconsidered determination.
      4. Departmental Appeal Board review [' 422.608]
        1. These appeals are governed by the Social Security regulations regarding Appeals Council review. See 20 C.F.R. '' 404.967 et seq.
        2. The reimbursement sought must be at least $100.
        3. The beneficiary has 60 days from the date of the adverse ALJ decision to request Appeal Board review. 20 C.F.R. ' 404.968.
      5. U.S. District Court review [' 422.612]
        1. The reimbursement sought must be at least $1,000.
        2. The court appeal is filed in accordance with 42 U.S.C. ' 405(g) which governs Social Security appeals.
          1. The beneficiary has 60 days from the date of the adverse Appeal Board decision to request file a court action.
      6. In addition to the foregoing standard review process, there is an expedited appeal process for Medicare managed care claims.
        1. Expedited appeal is available when the standard time frame would Aseriously jeopardize the life or health of the enrollee or the enrollee=s ability to regain maximum function.@ 42 C.F.R. ' 422.584.
        2. An expedited appeal must generally be resolved by the plan within 72 hours (42 C.F.R. ' 422.590(d)), and if appealed to CHDR, within another 72 hours.
      7. The Medicare appeals process is in a state of considerable flux. In BIPA of 2000, and again in the Medicare Prescription Drug, etc. Act of 2003 Congress mandated the inclusion of an independent medical review by a Qualified Independent Contractor (QIC) effective October 1, 2002. This would replace the current review stage of appeal. However, CMS has not yet implemented this process and it is not clear when that will happen.
  9. The ALJ Hearing: Some Pointers for Advocates
    1. Find out who your administrative law judge (ALJ) is.
      1. Most Medicare ALJs primarily hear SSDI and SSI appeals.
      2. The SSDI/SSI advocates in your area should be able to tell you something about the ALJ.
    2. Obtaining the Exhibits File
      1. At the time the notice of hearing date goes out, and often before that date, the exhibits file becomes available to the appellant and his/her attorney or advocate.
      2. You will want to review the file and copy key exhibits for your records.
    3. Submitting additional evidence
        1. You will want to put additional documents into the record that are not in the exhibits file and would enhance the chance of prevailing on appeal.
        2. Additional evidence can be submitted prior to the hearing or, with the ALJ=s permission, after the hearing.
    4. Request for an On-The-Record (OTR) decision
        1. ALJs are busy people and most ALJs will issue an OTR favorable decision, without the necessity of a hearing, if you can present them with a persuasive written argument.
        2. In most instances, your written argument can take the form of a letter (i.e., a ALetter Brief@) and should not be more than two to four pages unless the case is very complicated.
    5. Other pre-hearing communications with the ALJ
        1. Many of the ALJs you will see are accustomed to 20 to 30 minute pro se Social Security hearings.
        2. If your case will involve two hours of testimony from three witnesses, let the ALJ know ahead of time so that he or she does not schedule three other hearings for the two hour block of time.
    6. Holding the record open after the hearing
        1. This is routinely done in Social Security hearings and should be allowed, within reason, in Medicare hearings.
        2. Typically, the record is left open to allow the attorney or advocate to obtain additional evidence or to submit written arguments.

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