Bridges to Better Advocacy
April 2005

Lewis Golinker, Esq., Director
Assistive Technology Law Center
300 Gateway Center
401 East State Street
Ithaca, New York 14850
607-277-7286 (v)
607-277-5239 (fax)
Lgolinker@aol.com (e-mail)

• All Medicaid programs must cover and provide DME to:
• All children pursuant to EPSDT;
• All adults who are eligible for nursing facility care
• 42 USC § 1396a(a)(10)(A)(1396d(a)(4) is mandatory service); § 1396d(a)(4)(A)(nursing facility services); § 1396a(a)(10)(D)(home health services must be offered to all recipients eligible for NF care)

• Medicaid programs must provide any item of equipment that:
• "fits" the program’s definition of DME
• is determined to be "medically necessary"
• is not experimental
• represents the only or least costly equally effective form of treatment for the recipient’s condition.

Common Barriers

• To be DME or Not to be DME, That is the Question
• Not Covered by Medicare
• Schools Should Pay, Not Medicaid
• Not Covered for Adults
• Not Covered by Exclusive List
• Not Covered for Nursing Facility Residents
• Not Medically Necessary
• Not Least Costly
• Cost Above Payment Limit

To be DME or Not to be DME, That is the Question

• 4 question template: Common to all health care benefits programs

• Is the person "eligible?"
• Is the item or service "covered?"
• Is the item or service "medically necessary?"
• Do any special eligibility rules or limitations apply, and if so, are they satisfied?

Is the Item or Service "Covered?"

• Item or service must fit the definition of at least one covered service
• "durable medical equipment"
• "prosthetic devices"
• "rehabilitation services"
• Therapy (OT, PT, SLP) services "equipment"
• EPSDT
• Nursing Facility Services equipment
• Intermediate Care Facility services

• No Federal Medicaid Statutory or Regulatory definition of "DME"
• States have discretion to define this benefit
• Medicare Definition [42 C.F.R. 414.202]:
• Equipment which:
• Can withstand repeated use;
• Primarily and customarily is used to serve a medical purpose;
• Generally is not useful to a person in the absence of an illness or injury; and
• Is appropriate for use in the home.
• At least 30 states copy this definition in whole or substantial part

DME Coverage Issues (I)

• What is "a medical purpose?"
• Medical purpose = treatment for illness, injury, disability, condition
• Can Medicaid insist that sole use be medical use?
• Yes, but not if "primarily and customarily" is in DME Definition
• If "sole use" is standard, a lot of common DME items won’t be covered: hospital beds; bath chairs

DME Coverage Issues (II)

• What does "generally not useful…" mean?
• Cannot be used
• Would not be wanted – not functionally useful; extremely costly in comparison to functional alternative

DME Coverage Issues (III)

• "Convenience Items" -- a denial excuse under coverage or medical need
• "Convenience" for whom? For recipient or caregiver
• Measured how; by what?
• Is it name-calling? Is there an objective standard?
• Compare other programs :
• Medicare: carafes, overbed tables, raised toilet seats, telephone arms and air conditioners. Medicare Coverage Issues Manual, Section 60-9.
• Tricare: "Personal, comfort, or convenience items such as beauty and barber services, radio, television and radio. 32 C.F.R. Section 199.4(g)(64).

• Tests:
• Item Specific / Definition Specific:
• Do you have proof the item meets all the elements of the state definition?
• Does any other Medicaid program have an identical DME definition and paid for it?
• Item Specific:
• Is there a HCPCS Code for the item?
• Do Medicare, Tricare, or the DVA cover and pay for it?
• Do insurers cover and pay for it?

• Wheelchair lift van – not DME
• Service dog supplies – not DME
• Computer software – not DME
• Hot tub – DME
• Stairway lift – DME

• Medicaid programs have said "we cover what Medicare covers"
• Prohibited: Program goals are different
• Prohibited: Denial of due process (no way to challenge substantive non-coverage decision if made by Medicare

Schools Should Pay, Not Medicaid (I)

• Medicaid and IDEA have many services that overlap.
• Medicaid is "payor of last resort."
• Medicaid wanted nothing to do with coverage of in-school related services.
• Tried to create bright line (moat) around school buildings – lost – first in the Courts

• Then lost in Congress 42 USC 1396b(c)
• "Nothing in this subchapter shall be construed as prohibiting or restricting or authorizing the Secretary to prohibit or restrict, payment under subsection (a) of this section for medical assistance for covered services furnished to a child with a disability because such services are included in the child’s [IEP] established pursuant to part B of the [IDEA], or to an infant or toddler with a disability because such services are included in the child’s [IFSP] adopted pursuant to part H of such Act."
• Then lost in the Courts, again – Hunter; Will T.

• Adult coverage is required when:
• item is covered for children;
• DME is covered for adults;
• Medicaid program has only 1 DME definition; and
• Adults and children are "similarly situated," i.e., they have the same ability to benefit from access to and use of the requested equipment.

Not Covered by Exclusive List

• Exclusive lists of covered items or Lists of Expressly Excluded Items are prohibited
• 9/4/98 State Medicaid Director Letter
• Medicaid recipients must have an opportunity to show that the item the seek "fits" the Medicaid DME definition and is medically necessary, and therefore, should be covered.

• "Not covered" is not the proper excuse label – a resident of a NF has a right to equipment that will provide a functional improvement
• Appropriate question is: "who pays:" Medicaid or the NF?
• 3 groups of Medicaid programs:
• Group 1 agrees to pay for "non-routine" equipment;
• Group 2 says all equipment is the responsibility of the NF;
• Group 3 does not state clearly where the payment obligations rest.

• The Medicaid Act and regulations do not define "medical need" or "medical necessity."
• 5 General Medical Need Criteria:
• Recipient must have an illness, injury, or condition;
• I/I/C must cause adverse functional effects
• Adverse effects must be sufficiently severe such that a physician will recommend treatment
• Treatment must be safe, effective, and appropriate to the condition, its course and severity
• Treatment must be least costly equally effective alternative

• What must DME do?
• DME must address adverse functional effects of illness, injury, or condition.
• "Alleviate," "ameliorate," "palliate," "correct"
• DME does not "cure" nor is it required to do so.
• Blue v. Bonta – cure is not a "medical need" requirement

• Who Decides? Medical need for DME is established and documented by a rehabilitation therapist’s evaluation and report, and a doctor’s prescription.
• A long line of decisions directs Medicaid to defer to treating doctor recommendations.
• Beal v. Doe, 432 U.S. 438, 445n.9 (1977)
• Hope Med. Grp. for Women v. Edwards, 860 F.Supp. 1149, 1151 (E.D.La. 1994), aff’d 63 F.3d 418 (5rh Cir. 1995), cert. denied 517 U.S. 1104 (1996).
• Weaver v. Reagen, 886 F.2d 194, 199-200, (8^th Cir. 1989)(citing S.Rep. 404, 89^th Cong. 1^st Sess., reprinted in [1966] U.S.Code Cong. & Admin. News, 1943, 1986)
• Rush v. Parham, 625 F.2d 1150, 1156 (5th Cir. 1980)
• Pinnecke v. Preisser, 623 F.2d 546, 550 (8th Cir. 1980)("The decision of whether or not certain treatment or a particular type of surgery is ‘medically necessary’ rests with the individual recipient’s physician and not with clerical personnel or government officials.")
• Montoya v. Johnston, 654 F.Supp. 511, 513 (W.D.Tex. 1987)
• A.M.L. v. Dept. Of Health, 863 P.2d 44, 48 (Utah 1993).

• Is DME "treatment?"
• Is DME "experimental?"
• Not often a concern re: DME, but has arisen – Sanders (non-CF use for pneumatic vest)
• Test 1: can recipient show the item has come to be generally accepted by the professional medical community as an effective and proven treatment for the condition for which it is being used? Miller v. Whitburn, 10 F.3d 1315 (7^th Cir. 1993); Rush v. Parham, 625 F.2d 1150, 1156 (5th Cir.1980) (citing Enclosure # 2 to Intermediary Letters Nos. 77-4 & 77-5 [1976 transfer binder] Medicare & Medicaid Guide (CCH) ¶ 28,152 (1976)).
• Test 2: can recipient show that even if the item is rarely used, novel or relatively unknown, is there authoritative evidence that it is safe and effective? Miller v. Whitburn, 10 F.3d 1315 (7^th Cir. 1993); McLaughlin v. Williams, 801 F.Supp. 633, 639 (S.D.Fla.1992)

• Medicaid is a public welfare program: costs must be taken into account. It is a standard element of medical need – treatment selection decision making.
• Which treatment will be least costly is the last assessment before a recommendation and prescription is made
• Key is that the consideration must be of "equally effective" alternatives, not just the alternative that will be less costly, regardless of the value it provides. This is not IDEA "some benefit." The difference can be between

• Medicaid must ensure "equal access" to covered items and services
• Must offer payment rates that result in services providers to treat Medicaid recipients equally in comparison to people with other public or private health care coverage. 42 USC 1396a(a)(30)
• Medicaid must establish "reasonable standards" for access to covered services 42 USC 1396a(a)(17)
• Covered services must be available in sufficient amount, duration and scope to meet their purpose. 42 C.F.R. 440.230(b).

• Historically, court challenges to DME exclusions and limitations has been through 42 USC § 1983, to enforce the "reasonable standards" provision, 42 USC § 1396a(a)(17).
• Since Gonzaga, finding a basis for litigating in federal court has been much more of a challenge.
• 3 approaches must be considered:
• 42 USC § 1983 – using EPSDT; a(a)(10); a(a)(30)
• ADA – Rodde v. Bonta,357 F.3d 988 (9^th Cir. 2004)
• Supremacy Clause – Planned Parenthood of Houston v. Sanchez, 2005 WL 579912 (5^th Cir. Mar. 11, 2005); Kerr v. Holsinger, 2004 WL 882203 (E.D.Ky Mar. 24, 2005)

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