MEDICARE FUNDING OF ASSISTIVE TECHNOLOGY
Additional Resources to Support Your Advocacy
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
[Much of the content of this handout is borrowed from a
longer handout that was co-authored by Mr. Sheldon and
Sally Hart, a Staff Attorney with both the Center for Medicare
Advocacy and the Arizona Center for Disability Law]
April 2006
I. Resources to Support Your Medicare Work
A. 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
a. 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).
b. “Medicare National Coverage Determinations Manual”: www.cms.hhs.gov/manuals/downloads/ncd103c1_Part4.pdf
(1) This now replaces what was contained in the “Coverage Issues Manual,” governing durable medical equipment and prosthetic device decisions.
(2) “Medical and Surgical Supplies” is located at section 280 of this manual.
(3) The “Durable Medical Equipment Reference List” is located at section 280.1.
(4) The new National Coverage Decision for “Mobility Assistive Equipment,” effective May 5, 2005, is located at section 280.3.
(5) Other National Coverage Decisions, setting forth Medicare’s funding criteria, can be found in other sections of the manual. See, e.g., section 50.1 (Speech Generating Devices), section 50.3 (Cochlear Implantation).
4. Durable Medical Equipment Regional Carrier (DMERC) Manuals for four regional DMERCs
a. HealthNow (Region A): www.umd.nycpic.com/dmerc.html (then select publications).
b. Associated Insurance Companies, Inc. - AdminaStar (Region B): www.adminastar.com (see specifically, www.adminastar.com/Providers/DMERC/DMERC.html)
c. Palmetto GBA (Region C): www.palmettogba.com (then select manuals)
d. CIGNA Health Care (Region D): www.cignamedicare.com (then select publications)
B. Books, articles, other reference materials (most are available through the National AT Advocacy Project)
1. In general
a. 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.
b. 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
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
a. Since 1993, the GAO has issued more than a dozen Medicare-related reports, including several related to AT issues.
b. 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.
C. Medicare-related web sites
1. CMS sites: general site - www.cms.hhs.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
D. 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.
II. Medicare Eligibility
A. 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:
a. 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,
b. 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).
c. 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).
B. Medicare has no income or resource rules.
1. Unlike Medicaid, Medicare recipients need not have limited income and resources.
2. An exception to this would be eligibility for the Medicare Part D low income subsidy program. Part D, involving the new prescription drug program, is beyond the scope of this handout.
C. 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 $860 monthly in 2006 (or $1,450 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 $860 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, 2004 & 2006 Supp.), Chap. 3 (order forms available through AT Advocacy Project).
III. What is Covered? What is Excluded?
A. 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).
B. 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.
C. 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 National Coverage Determinations Manual,” part I.A.3, above.
2. Some NCDs allow for coverage of specific items; other rules specifically exclude coverage.
3. NCDs will often be referenced by Medicare decision makers when they approve or deny coverage.
4. 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).
a. 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.
b. 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 are probably no longer valid statements of the current law.
D. 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 “not 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.
a. 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).
b. 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:
a. 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.
b. 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.
E. 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 “complaint” 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.
a. If filed before the requested service has been received, it must be accompanied by a written statement from the aggrieved party’s treating practitioner.
b. 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.
a. The aggrieved party may submit additional evidence to show that the particular NCD or LCD at issue should be modified.
b. The decision-maker may independently consult scientific and clinical experts, and may order discovery.
c. The standard of review is whether the NCD or LCD is “reasonable” based on the record.
3. If the decision maker concludes that a coverage rule is not “reasonable” 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.
IV. Coverage of Assistive Technology Under Medicare’s Durable Medical Equipement (DME), Prosthetic Devices, and Othotics Categories
A. 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.
B. 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
a. can withstand repeated use;
b. is primarily and customarily used to serve a medical purpose;
c. generally is not useful to an individual in the absence of an illness or injury; and
d. is appropriate for use in the home. 42 C.F.R. §§ 410.38(a), 414.202.
C. 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.
D. 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."
V. Suggested Sequence for Analyzing AT Case Under Medicare
To determine an individual's potential eligibility for Medicare-funded AT, under the DME category or a related category of coverage, we suggest the following sequence of analysis:
A. 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.
B. Determine if device is specifically excluded from Medicare coverage by statute.
C. 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.
D. 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.
E. 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.
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.
F. .Determine whether device is medically necessary.
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