Winter 2002 -Spring, 2003 AT Advocate Newsletter

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Advocate
Newsletter of the National Assistive Technology Advocacy Project
A Project of Neighborhood Legal Services, Inc.
295 Main Street, Ste. 495 · Buffalo, New York 14203 · (716) 847-0650
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e-mail: atproject@nls.org · Web Page: www.nls.org

Funded through a grant from the National Institute on Disability and Rehabilitation Research,
U.S. Department of Education, under contract number H224B990002. The opinions expressed do not
necessarily reflect the position of the U.S. Department of Education, and no official endorsement by the
U.S. Department of Education of the opinions expressed herein should be inferred.

Volume VIII Issue 1 Winter 2002 - Spring 2003

In this issue ...
MEDICAID, ASSISTIVE TECHNOLOGY, AND THE COURTS
An Updated Summary of AT-Related Federal and State Court Decisions
Funding of AT: Some key concepts
Interpretive Guidance used by the Courts
Key AT-Related Case Law
- The Exclusive List Cases
- Denial of Funding on the Basis of Age
- Specific Categories of AT or DME
Medicaid Resources on National AT Advocacy Project’s Website
Key Websites to Support Your Medicaid Advocacy

MEDICAID, ASSISTIVE TECHNOLOGY, AND THE COURTS
An Updated Summary of AT-Related Federal and State Court Decisions

The Medicaid program was established by Congress in 1965 as Title 19 of the Social Security Act. Nearly 40 years later, this federal-state partnership provides an entitlement to medically necessary health care to approximately 40 million low income individuals, families, and persons with disabilities across the country. The federal Centers for Medicare and Medicaid Services (CMS) has described Medicaid as the nation’s largest health care provider, covering the needs of more Americans than Medicare or any other health insurer.

Those of us who specialize in assistive technology (AT) advocacy also recognize Medicaid as the largest single funding source for AT devices in most, if not all states. State Medicaid programs, including the optional Home and Community Based Waiver programs, have paid for many AT devices for both children and adults with disabilities, including: custom and power wheelchairs/scooters, augmentative communication devices, specialized strollers and car seats for children, therapy vests, electronic lifting devices, and specialized beds and cribs, to name just a few.

AT advocates have also come to know that even wheelchairs are not routinely funded in every case and in every state. As the customization of or adaptations to the wheelchair or other pieces of equipment become more expensive, there is a greater chance that it will take a hearing or even litigation to get the item approved. In some cases, litigation has been necessary to establish that the equipment in question is medically necessary. In other cases, litigation has been necessary because the state Medicaid agency has, through payment limits or outright exclusions, precluded funding for a whole class of AT or what is most typically classified as durable medical equipment.

This article will summarize many of the most important AT-related court decisions going back to the mid 1980s, with most of these decisions published during the 1994 - 2003 period (i.e., since the Protection and Advocacy for Assistive Technology or PAAT programs have been funded). The great majority of these cases involved attorneys from P&A programs or attorneys who we could identify as part of our extended AT advocacy network. Given the limitations of space, this article will not highlight unreported court decisions (i.e., not reported in either official reporters or Westlaw) or court settlements, except insofar as later reported cases relied on the unreported or settled case in some way. Limitations of space will also mean that some important decisions may either get left out of this summary or be summarized more briefly than some other decisions.

This article will not attempt to provide a general overview of Medicaid funding of AT (see our April-May 1997 on that topic, available on the National AT Advocacy Project’s website at www.nls.org/av/av-0597.htm). However, in order to give the remaining discussion some context, we will provide a brief discussion of some of the key Medicaid concepts that should be familiar to the AT advocate.

Although states participate in the Medicaid program at their option, all states do so. Congress has created 14 categories of required Medicaid services that states must cover, 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(1) - (5), 1396a(a)(17), 1396a(a)(21), and 29 categories of services that are optional. 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(12). While there may be 10 or more required and optional categories under which AT may be covered, the most common coverage category for AT is durable medical equipment (DME), a category that has no federal definition. (See 42 U.S.C. § 1396d(a)(7); 42 C.F.R. § 440.70(b)(3), providing that “medical supplies, equipment and appliances” are mandatory home health services.) Other categories for potential coverage of AT include physical therapy, occupational therapy, and speech, hearing and language therapy. see 42 C.F.R. § 440.110 (with each category covering necessary supplies and equipment); prosthetic devices, id. § 440.120(c); and rehabilitation services, id. § 440.130(d).

At least two reported decisions have recognized a three-part test for determining the right to Medicaid-funded AT or DME:

Hunter v. Chiles, 944 F.Supp. 914, 916 n.1 (S.D. Fla. 1996); Fred C. v. Texas Health and Human Services Commission, 924 F.Supp. 788, 791 n.2 (W.D. Tex. 1996), vacated, 117 F.3d 1416 (5th Cir. 1997)(in an unreported slip opinion, establishing as a fourth requirement, at least in the context of that case, that the individual meet the eligibility requirements of the relevant coverage category, i.e., home health services).

This article will not discuss part one of the test, including the many ways that individuals with disabilities can establish eligibility for Medicaid or the litigation that has focused on eligibility issues. Rather, the focus of this article is on AT-related court decisions that will deal with parts two or three of this test.

The Medicaid law and its implementing regulations do not provide for the funding of any particular AT devices. The law and regulations do not specify whether motorized wheelchairs or augmentative communication devices, for example, are covered items within the scope of any particular mandatory or optional category of coverage. Nor do they spell out a specific test of medical necessity or other criteria governing when a person is eligible for a specific device. However, the federal law provides a general framework and some federal regulations will spell out, in greater detail, what a particular category contemplates.

The federal law indicates, for example, that the primary goal of Medicaid is to provide medical assistance to persons in need and to furnish them with rehabilitation and other services to help them “attain or retain capability for independence or self-care.” 42 U.S.C. § 1396; see Meyers v. Reagan, 776 F.2d 241, 243 (8th Cir. 1985) (In finding the plaintiff entitled to Medicaid funding for an augmentative communication device, the court reasoned that obtaining or retaining the capability for independence is the “primary goal of Medicaid.”). The federal regulations provide that “each service must be sufficient in amount, duration and scope to reasonably achieve its purpose,” 42 C.F.R. § 440.230(b), a provision that has repeatedly surfaced in the AT-related litigation.

The law of your state may also provide language that can be referenced for interpretive guidance. For example, New York’s law provides that Medicaid will pay for services and supplies which are “necessary to ... correct or cure conditions in the person that ... interfere with [the recipient’s] capacity for normal activity ....” N.Y. Social Services Law § 365-a. See Lagowski v. Whalen, 706 N.Y.S.2d 283 (N.Y.A.D. 4 Dept. 2000), quoting Sabot v. Lavine, 399 N.Y.S.2d 640 (N.Y. 1977)(“[t]he statute ‘must be interpreted and enforced in a reasonable and humane manner in accordance with its manifest intent and purpose.’”); Starkweather v. Wing, 662 N.Y.S.2d 658, 659 (N.Y.A.D. 4 Dept. 1997)(wheelchair was needed for 14 year old boy “to increase the independence and functional ability of petitioner’s infant, especially in emergency situations, and to prevent the development of ‘learned helplessness’”).

The great majority of AT-related court decisions have been published since the PAATs were first funded during the mid-1990s. As a network, we have built off each other’s successes. With help from the National AT Advocacy Project and many of you, we have shared briefs, alerted others to progress on our cases, and shared theories for pursuing both hearings and litigation. This makes the following discussion a bit of a highlight reel of successes within our PAAT and AT advocacy networks.

As an organizational tool, we have broken the cases down under several headings: exclusive list cases, denials based on age, and the category of device. Many of the cases cross over to two or more headings.

This line of case law had its genesis with a very bad U.S. Court of Appeals decision in DeSario v. Thomas, 139 F.3rd 80 (2nd Cir. 1998), cert granted, judgment vacated, Slekis v. Thomas, 525 U.S. 1098 (1999). In DeSario, the Second Circuit held that Connecticut’s Medicaid program can limit the availability of DME to items which appear on an exclusive list. Following the plaintiffs’ filing of a petition for certiorari with the U.S. Supreme Court, with the Court agreeing to hear the case, the Second Circuit’s decision was vacated upon the issuance of the very important State Medicaid Director letter by the federal Health Care Financing Administration (HCFA, now renamed CMS) (located at http://cms.hhs.gov/states/letters/smd90498. asp). This September 1998 HCFA letter clarified agency policies concerning the coverage of “medical equipment.” The policy allows state Medicaid agencies, for administrative convenience, to maintain lists of pre-approved DME. However, the federal policy letter requires states to provide individuals “a meaningful opportunity for seeking modifications of or exceptions to a State’s pre-approved list.”

In short, the HCFA or CMS policy letter requires a procedure for seeking approval of items not on the state’s pre-approved list. The natural extension of this policy is that states should also not be permitted to maintain lists of items that are never covered as DME. See T.L. decision, below. Since its issuance in September 1998, several court decisions have cited it in striking down a state Medicaid program’s policy of not approving a whole class of DME.

In Estaban v. Cook, 77 F.Supp. 2d 1256 (S.D. Fla. 1999), the plaintiffs brought this class action to challenge a state Medicaid policy that covered both motorized and custom mobility devices for individuals under 21, but limited coverage of mobility devices for adults to wheelchairs costing $582 or less. Citing the September 1998 HCFA letter, the court reasoned that the state failed to provide a reasonable and meaningful procedure for requesting items (in that case, custom and power wheelchairs) that do not appear on the state’s pre-approved list. 77 F.Supp. 2d at 1260. The court went on to hold that the state’s absolute limitation on coverage for wheelchairs “runs counter to its articulated purpose for including wheelchairs under its DME coverage: to minimize the effects of mobility impairments.” Id. at 1261.

In T.L. v. Colorado Department of Health Care Policy and Financing, 42 P.3d 63 (Colo. App. 2001), the Colorado Court of Appeals declared as illegal the state Medicaid agency’s use of a list of items that cannot be approved as DME, relying heavily on the September 1998 HCFA or CMS letter. At issue was a prior approval request for a hot tub which was prescribed for therapeutic purposes to treat an arthritic condition which causes constant hip pain. The court ruled that, “by expressly excluding home health [i.e., DME] coverage for hot tub or jacuzzi acquisitions under all circumstances and without regard to medical necessity,” the state regulation “violates federal law and the objectives of Title XIX [of the Social Security Act] and is therefore invalid.” Id. 42 P.3d at 67. The court then remanded the case to the administrative law judge to determine: i) whether the hot tub meets the DME definition; ii) whether the hot tub therapy is medically necessary for T.L.; iii) whether, and at what cost, T.L. could obtain that therapy outside the home (i.e., whether the home-based therapy is the least costly alternative); and iv) whether the primary purpose of the hot tub is to “enhance the comfort of T.L.”

In Bell v. Agency for Health Care Administration, 768 So.2d 1203 (Fla. App. 1 Dist. 2000), the appellant was an adult Medicaid recipient whose doctor prescribed an insulin pump and supplies. He was able to obtain the insulin pump through his Medicaid health maintenance organization (HMO), apparently having opted for service through managed care. Although the appellant’s HMO continued to pay for supplies for the insulin pump, he wanted to change back to the regular Medicaid program but did not want to do so until he was assured of coverage of his insulin pump supplies. If he was a child under age 21, the regular Medicaid program could have approved the supplies under a miscellaneous code; however, as an adult, the Florida Medicaid rules included an exclusive list of DME and supplies for adults and the insulin pump supplies did not appear on that list.

The court observed that the Florida Medicaid rules did not provide a procedure for adult beneficiaries to seek insulin pump supplies or any other item of DME or DME supplies not on the exclusive list. Citing both Estaban v. Cook, supra, and the September 1998 HCFA letter, the court held the Florida rule in question invalid, reasoning that “[t]his disparity in coverage discriminates against Florida Medicaid recipients age 21 and older and violates federal law by arbitrarily and unreasonably excluding coverage of benefits that may be medically necessary.” 768 So.2d at 1205.

Since 1989, Medicaid’s Early and Periodic Screening, Diagnosis and Treatment (EPSDT) program has required states to cover all medically necessary mandatory and optional services for Medicaid eligible children under the age of 21. 42 U.S.C. § 1396d(r). This means, for example, that a state must cover the optional categories of dental services and physical therapy for children, but could opt to not cover those service categories for adults. In the cases in which the courts have held that state Medicaid agencies cannot treat children more favorably than adults, the cases involved a request for AT under a mandatory coverage category or under an optional category which the state had chosen to cover in its adult program.

One of the first AT-related decisions to deal with the disparity in coverage for adults compared to children was Hunter v. Chiles, 944 F.Supp. 914 (S.D. Fla. 1996). The court in Hunter held that augmentative communication devices, which were potentially covered as DME for Medicaid recipients under age 21 through Florida’s EPSDT program, could not be denied to an adult plaintiff with severe speech difficulties, solely on the basis of age. Id. at 920. The court cited, with approval, the Arizona Supreme Court’s decision in Salgado v. Kirschner, 878 P.2d 659, 660 (holding it was unreasonable to allocate treatment, i.e., liver transplants, within a service category solely on the basis of age). Both the Hunter and Salgado holdings were cited by the court in Estaban, supra, in holding that Florida’s absolute limitation of $582 on the coverage of wheelchairs, resting entirely on the basis of age, “fails the reasonableness test and is contrary to the purposes of the Medicaid statute.” 77 F.Supp. 2d at 1261-62. See also, Fred C. v. Texas Health and Human Services Comm’n, 924 F.Supp. 788, 791-92 (W.D. Texas 1996), vacated on other grounds, 117 F.3rd 1416 (5th Cir. 1997); Bell v. Agency for Health Care Admin., supra, 768 So.2d at 1204-05.

Augmentative Communication Devices (ACDs). These are also referenced as augmentative and alternative communication (AAC) devices. The first reported decision to address ACDs was Meyers v. Reagan, 776 F.2d 241 (8th Cir. 1985). Now nearly 20 years old, this decision continues to be important in two major ways. First, as noted in the section above on interpretative guidance, the Eighth Circuit in finding the plaintiff entitled to Medicaid funding for what it referred to as an electronic speech device, confirmed that the primary goal of Medicaid is to provide services to help the recipient “attain or retain capability for independence or self-care.” Id. at 243 (citing 42 U.S.C. § 1396). Second, the court analyzed the plaintiff’s eligibility for the device under the optional category of services for individuals with speech, hearing, and language disorders, which includes funding for any necessary supplies and equipment. 42 C.F.R. § 440.110(c)(1). The court reasoned that once Iowa’s Medicaid program chose to offer these services under the broader optional category of “physical therapy and related services,” it was bound to cover any service within that optional category. 776 F.2d at 243 (quoting Eder v. Beal, 609 F.2d 695, 702 (3rd Cir. 1979)(“[O]nce a state elects to participate in an ‘optional’ program, it becomes bound by the federal regulations which govern it.”).

The Hunter and Fred C. cases are the important ACD cases decided by the courts in more recent years. In Hunter v. Chiles, supra, the Florida Medicaid agency did not cover augmentative communication devices for adults and claimed it only covered them for those under 21 after all other funding sources had been exhausted. Regarding the claim of the adult plaintiff, the court observed that ACDs met the general characteristics of DME and were considered to be DME for those under 21. The court then rejected the state’s argument, that it could cover only some services within the DME category, citing Meyers, supra, and held that ACDs are covered as DME under Florida’s home health care provision. 944 F.Supp. at 919-920.

Regarding the seven-year-old plaintiff’s claims, keep in mind that pursuant to the EPSDT program, children under 21 are entitled to services under all mandatory and optional Medicaid categories, including those optional categories not covered for adults in any given state. 42 U.S.C. § 1396d(r)(5). The plaintiffs argued that, pursuant to EPSDT, the ACD was covered under the optional categories of speech therapy, prosthetics, and rehabilitation services, in addition to DME. Without specifying whether the device was covered in all these categories, the court held that ACDs are covered for children under age 21 through the EPSDT program. 944 F.Supp. at 920-921.

The court also rejected the defendants assertions that Medicaid need not pay for these devices because funding is available for ACDs through various other programs. The court deemed these assertions to be “self-serving and conclusory” and not supported in the record. Id. at 920. The court specifically rejected the availability of funding from local special education programs as a basis for denying funding, noting that “[t]he Medicaid statute clearly states that the availability of special education funds cannot be used to deny medically necessary services under Medicaid.” Id. at 921 (citing 42 U.S.C. § 1396b(c)).

Fred C. v. Texas Health and Human Services Com’n has a more involved history than Hunter. 924 F.Supp. 788 (W.D. Tex. 1996)(Fred C. I), vacated, 117 F.3d 1416 (unreported slip opinion remanded case to determine whether plaintiff is qualified to receive home health services under state’s Medicaid program); on remand (Fred C. II), 988 F.Supp. 1032 (W.D. Tex. 1997), aff’d, 167 F.3d 537 (5th Cir. 1998). In Fred C. I, the court ordered that the ACD was covered under the Texas Medicaid program as both DME and a prosthetic device. It is noteworthy that the court, in addressing the DME issue, analyzes the pivotal role communication plays in the lives of Medicaid recipients (enabling “adult Medicaid recipients to live on their own, maintain employment, pay taxes, and become productive members of the community rather than wards of the state”). 924 F.Supp. at 792. In analyzing the prosthetic devices issue, the court emphasized that the ability to speak through the ACD was necessary in order for the plaintiff “to be restored to ‘his best functional level.’” Id. at 792-93.

On appeal, the lower court’s decision was vacated and remanded “for the purpose of establishing whether Fred C. is qualified to receive home health services under the Texas Medicaid program.” 988 F.Supp. at 1033. On remand, the state defendants did not question the plaintiff’s eligibility to receive home health services (and thus, DME). Instead, they requested the lower court to reject its previous findings that the ACD is a covered benefit. In a decision strikingly similar to the Fred C. I decision, the court in Fred C. II held that the ACD was covered as both DME and a prosthetic device.

Standing Wheelchairs. One of the recent technological innovations is the wheelchair adaptation that allows the wheelchair (and its user) to rise to a standing position. The potential social, vocational, and practical benefits of this innovation should be obvious (e.g., the individual can interact with others from a standing position, can reach objects in cupboards at home, or in bookshelves at a job). The two reported cases, discussed below, have justified this standing mechanism based on the documented medical benefit to be derived from an intervention known as passive standing.

In Forrest Johnson v. Minnesota Dept. of Human Services, 565 N.W.2d 453 (Minn. App. 1997), the court went through an extensive recitation of the individual’s medical condition associated with the diagnosis of multiple sclerosis. The court also referenced the extensive testimony of his treating physician on the benefits of passive standing that can be achieved through the standing device on the wheelchair, potentially alleviating many of the problems caused by prolonged immobility, including bone calcium loss, urinary tract and bladder infections, muscle spasticity, muscle contractures, loss of range of motion, muscle atrophy, and decubitus ulcers. The court also recited similar testimony from the individual’s physical therapist and occupational therapist. Id. at 454-457. Based on the record of this testimony, the court held that the administrative hearing decision could not be sustained on the findings that the standing wheelchair was neither medically necessary nor the least expensive appropriate alternative. Accordingly, the court affirmed the decision of the lower court, ordering the Medicaid agency to pay for the item.

Similarly, in Sorrentino v. Novello, 744 N.Y.S.2d 592 (N.Y.A.D. 4th Dept. 2002), the court awarded Medicaid funding for a standing power wheelchair. This decision recites evidence and testimony that supported this man’s need for the standing device to promote circulation, bone density, bladder and bowel function, prevent pressure sores, prevent loss of muscle mass and muscle atrophy.

Stairway Chairlifts. In Blue v. Bonta, 121 Cal.Rptr.2d 483, 99 Cal. App. 4th 980 (Cal. App. 1st Dist. 2002), the California appellate court ruled that the state’s Medicaid agency cannot, by regulation, specifically exclude stairway chair lifts (sometimes referred to as stair glides) from the scope of coverage under Medi-Cal’s DME category. The plaintiff was a woman with severe physical disabilities who had difficulty going up and down stairs to use the home’s only bathroom. The court pointed out that Ms. Blue had once fallen while attempting to climb the stairs which forced her to remain on the upper floor for days, unable to leave the home in the event of a daytime emergency when her daughter was working.

The decision turned on whether the device in question met California’s definition of DME, with the state arguing that the chair lift does not serve a “medical” purpose. In finding that this device meets California’s DME definition (very similar to the Medicare definition), the decision contains some good language that attorneys may find useful in pending or future cases (e.g., “a stairway chair lift alleviates a medical condition such as osteoarthritis by restoring the ability to move about the different levels of a home, where this is medically necessary for a patient.”; “As in the case of a wheelchair, a stairway chair lift restores mobility lost as a result of a medical condition or disability, enabling the patient to reside at home rather than in an institution.”; “the evil to be remedied by the relevant Medicaid and Medical statutes is the denial of necessary medical equipment for use in home health care, leading to unnecessary disability or institutionalization.”). 99 Cal. App. 4th at 989-990.

Surprisingly, the court did not address the issue of this regulation acting as an exclusive list. Pursuant to the analysis of the court used in the T.L. case, supra, an item or list of items of DME specifically classified as not available should be held to run counter to the 1998 CMS policy letter prohibiting the use of exclusive lists.

Specialty Features on a Wheelchair. Johnson v. DeBouno, 654 N.Y.S.2d 902 (N.Y.A.D. 4 Dept. 1997), involved a man with quadriplegia who required a power wheelchair with a built in power tilt-in-space feature so that he could reposition himself during those periods he was alone to promote better circulation and prevent further incidents of decubitus ulcers (i.e., pressure sores). The court determined that the power tilt-in-space was both DME as well as medically necessary for the petitioner. This same court’s decision in Ray v. Wing, 661 N.Y.S.2d 163 (N.Y.A.D. 4 Dept. 1997), also approved a wheelchair with specialty features that would promote a medical purpose in addition to the increased mobility that always comes with a wheelchair. Specifically, the Enduro Hemi-Height Wheelchair with custom seating was approved in that case as petitioner established it would “prevent skin breakdown, decubitus ulcers and edema, . . . would provide better support and prevent back, shoulder and neck pain ...” Id. 661 N.Y.S.2d at 164.

A Back-Up Manual Wheelchair. A New York appellate court approved Medicaid funding, in two cases, in which the petitioner established the need for a customized manual wheelchair to back up a power wheelchair for those occasions when the existing wheelchair cannot reach environments the individual must access or because of the periodic need for a back up when the primary wheelchair is in for repairs. See, Gartz v. Wing, 654 N.Y.S.2d 702 (N.Y.A.D. 4 Dept. 1997); Dobson v. Perales, 572 N.Y.S.2d 562 (N.Y.A.D. 4 Dept. 1991).

A CCTV. In Brisson v. Dep’t of Social Welfare, 702 A.2d 405 (Vt. 1997), the Supreme Court of Vermont held that the state Medicaid agency’s refusal to cover a closed circuit television (CCTV), under the optional eyeglasses category, was an impermissible limitation on the amount, duration, and scope of that service category because the state failed to provide for those in greatest need of that service. Id. at 408; 42 C.F.R. § 440.230(b). The plaintiff, who had a diagnosis of macular degeneration, was legally blind and could read only if print was magnified to eight times its normal size. The court held that the CCTV met the federal definition of eyeglasses, 42 C.F.R. § 440.120(d), an optional category of coverage. In addressing the state’s arguments that it could deny coverage for the CCTV because of its expense, the court cited evidence that the plaintiff, if not given the CCTV, would be either confined to a nursing home or require full-time, Medicaid-funded nursing care. It then reasoned that the state “cannot credibly maintain that coverage is too expensive where providing a CCTV would be fiscally expedient and would maintain the recipient’s ability to live independently.” 702 A.2d at 408, citing 42 U.S.C. § 1396. More recently, the Vermont Supreme Court reaffirmed much of this reasoning in ruling that the state Medicaid agency’s exclusion of all coverage for partial dentures was an impermissible limitation of services under the optional dental services provision. Cushion v. Department of PATH, 807 A.2d 425 (Vt. 2002), citing 42 U.S.C. § 1396d(a)(10); 42 C.F.R. § 440.100.

A Body Brace. In Ohlson v. Weil, 953 P.2d 939 (Colo. App. 1997), as modified on denial of rehearing, 7/17/97, cert denied, 4/27/98, the plaintiff, who had muscular dystrophy and used a wheelchair, sought Medicaid funding for a molded plaster body brace in order to sit up and breathe properly in her wheelchair. The device was not to be surgically implanted, but rather clamped to the outside of her body and would need replacement once per year. The state Medicaid agency conceded that the brace was medically necessary, but argued that it did not meet the state’s DME definition because it was not an item that would be needed for a finite period of time, but would be needed for the rest of the plaintiff’s life. Basing its DME analysis wholly on an interpretation of the state regulation, the court found nothing in the regulation’s plain language that would support this position. Moreover, the court noted that the state’s interpretation of the regulation “is belied by its coverage, as [DME], of such items as wheelchairs, wheelchair seating devices, and other wheelchair attachments.” Id. at 942. It held that the brace met the state criteria and must be covered as DME. Noting that state regulations were amended while the case was pending, the court ordered reimbursement for past costs related to the brace and remanded the case to determine whether the brace would be covered under the new regulations under a prosthetic device category. In remanding the case to the lower court, the court held that the state Medicaid agency “failed to show that Colorado’s refusal to cover all non-surgically implanted prosthetic devices is an appropriate limit based on medical necessity under 42 C.F.R. § 440.230(d).” 953 P.2d at 945 (emphasis added).

Hot Tubs, Jacuzzis. See discussion of Blue v. Bonta with the exclusive list cases, above.

Swimming Pool Lift. In Kindron v. DeBuono, 697 N.Y.S.2d 794 (N.Y.A.D. 4 Dept. 1999), a 15 year old girl with spinal muscle atrophy requested Medicaid funding for purchase of a swimming pool lift which would allow her to engage in therapeutic activities in her home swimming pool. In reversing the fair hearing decision, the court noted that the hearing record “established that the medical benefits of hydrotherapy for Jennifer include increases in her ranges of motion, muscle strength and bone density, a reduction in cardiovascular deterioration and the prevention of venostasis and osteoporosis,” noting that the treating physical therapist testified that those benefits would not be realized through other forms of physical therapy. Observing that the state Medicaid agency offered no proof to challenge this evidence of medical necessity or the contention that it was DME within that state’s definition, the court held that the hearing decision was not supported by substantial evidence and must be annulled.

Incontinence Underwear. In S.D. v. Hood, 2002 WL 31741240 (E.D.La. 12/5/02), a 16 year old plaintiff with spina bifida brought an action to assert his right to “medically necessary” incontinence underwear pursuant to EPSDT requirements. The district court found that the state’s policy of refusing to provide incontinence underwear for Medicaid beneficiaries for whom such “medical assistance” has been found medically necessary by EPSDT screenings violates the federal Medicaid Act. The court compared this medical assistance to the plaintiff’s wheelchair, which allows him to move about his home, to travel, and to engage in age appropriate activities.

This article has summarized most of the important AT-related Medicaid case law decided during the last 20 years. It should not be lost on the reader that 90 percent of these cases have been decided since 1996, i.e., after the PAAT projects were established and fully operating in every state. Nearly every one of these post-1995 decisions was a case handled by a Protection and Advocacy Program or a Legal Services/Legal Aid office that we could identify as part of our broader AT advocacy network.

Hopefully, this article will serve as a resource to attorneys and advocates who are involved in or contemplating AT-related litigation in state or federal courts. Readers should keep in mind, however, that the reported cases discussed in this article represent only a fraction of the litigation that has been handled by the P&As and other organizations (see box, p.283, regarding the material available through our Court Documents Library). For specific questions, about the cases discussed, readers should contact Jim Sheldon at the National AT Advocacy Project [716-847-0650 ext. 262 or jsheldon@nls.org].

We encourage the reader to visit our project’s website www.nls.org/natmain.htm from time to time to check on the Medicaid-related resources available. These include newsletters, articles, and training handouts prepared by our staff, and similar documents prepared by others for distribution at our national conferences, including the following that were recently distributed as handouts at our April 2003 “Bridges to Better Advocacy” conference in Austin, Texas:

Most of the other handouts from our annual conference are also available on the website at www.nls.org/conf03.htm.

NOTE: Using the Medicaid home page and the site for laws and regulations, the user can access a menu of many other resource materials.

Most state Medicaid agencies now have web sites. You can probably locate the state web site by doing a search by the agency’s name with one of the popular internet search engines like Google www.google.com/ or Alta Vista www.altavista.com/.
Advocacy Group Sites

• National Health Law Project - www.healthlaw.org (probably your best, up-to-date source of Medicaid information for the attorney or advocate; regular updates to legislation and regulations; written analysis of key Medicaid provisions; most materials available for free, some publications are for sale)(highly recommended)
• Families USA - www.familiesusa.org/site/PageServer (a great wealth of information, from both an advocacy and watchdog perspective, on the range of health care options available to Americans)
• Kaiser Family Foundation - www.kff.org (Follow links to the Kaiser Commission on Medicaid and the Uninsured - a policy institute and forum for analyzing health care coverage and access for the low-income population and assessing options for reform, striving to bring increased public awareness and expanded analysis to the policy debate over health coverage and access, with a special focus on Medicaid and the uninsured)
• Neighborhood Legal Services, Inc. of Buffalo www.nls.org and its National AT Advocacy Project www.nls.org/natmain.htm - includes many newsletters, selected training materials, and links to other resources.

Our National AT Advocacy Project maintains two resource libraries to support the work of AT advocates, nationwide.

Our Court Documents Library is best described as a brief and pleadings bank, containing complaints, briefs, discovery papers, unreported decisions, and other court papers to support AT and related litigation in the state and federal courts. Many of the more recent documents are now available in electronic format. Although we have many of the complaints and briefs that supported cases like the Fred C., Estaban, and T.L., cases discussed in the feature article, we also have collected documents from many cases that never resulted in a reported decision. Copies of relevant documents can be mailed or emailed (if available electronically) to support your work. Currently, we have several hundred documents from more than 130 cases, nationwide.

Our Hearing Decisions Library contains primarily hearing decisions, any supporting briefs and memoranda of law supplied to us by attorneys and advocates, and a few miscellaneous policy documents (such as policy letters from CMS). These are almost all documents that are not published anywhere. All of our hearing decisions have been abstracted and put into a word-searchable database that you can access through our website: www.nls.org/resource.htm. For example, by typing in the words “car seat,” the user can view five separate abstracts of hearing decision in which Medicaid funding was approved for a child’s adaptive car seat or similar device. You can then email Wilma Castro if you know which decisions you would like. All decisions and supporting documents, if any, are available in hard copy and we are gradually converting this whole system to PDF files so that we can more quickly get documents to you.

NOTE: Our resource libraries are only as good as the materials we get to put into them. During the past year of so, submissions of materials to our National AT project has gone down substantially. Please get us your materials so that everyone can benefits from them.

If you would like the AT Advocate Newsletter sent to you in a large-print or other alternative format, please let us know.

We have designed a word-searchable digest, using computer technology, to store and retrieve hearing decisions and other administrative documents. We also have indexed more than 400 documents from more than 100 pending and decided court cases. All documents are available through our AT Resource Library. Please send us your hearing decisions, briefs and other documents involving AT.

The AT Advocacy Project will provide nationwide services to PAAT projects including technical assistance to advocates wanting to access funding for assistive technology for individuals with disabilities.