Volume VI      Issue 1                                                                              Spring 2001
Copyright 2001, Neighborhood Legal Services, Inc.

Newsletter of the Assistive Technology Advocay Project
A Project of Neighborhood Legal Services, Inc · 295 Main Street, Room 495 · Buffalo NY 14203
(716) 847-0650 · (716) 847-0227 FAX · (716) 847-1322TDD atproject@nls.org · www.nls.org
Supported by NYS Office of Advocate for Persons with Disabilities,TRAID Project, a Project
Funded by The National Institute on Disability and Rehabilitation Research, U.S. Department of Education.
Opinions expressed herein are not necessarily those of either TRAID or NIDRR

INTRODUCTION

        This is Part II in a two-part series on Medicaid. The Summer 2000 issue presented an overview of Medicaid and the special Medicaid rules for persons with disabilities. This issue discusses Medicaid as a funding source for assistive technology (AT) or what Medicaid typically calls durable medical equipment (DME). We discuss the prior approval process and how to appeal a decision that denies funding for DME. This replaces our January 1996 issue on the same topic, providing an updated and more extensive treatment of the subject.

        Medicaid will pay for a wide range of DME, including power and custom wheelchairs, power scooters (see box, p.204), augmentative communication devices, specialized beds and cribs, and many other items. However, in most cases Medicaid recipients cannot go out and purchase DME on their own. They need the formal prior approval of the State Department of Health (DOH).

        Since DME can be expensive, the regional DOH office responsible for your part of the state may deny many requests. We recommend persistence. In our experience, DOH often denies the request only to have the denial reversed at a fair hearing.

        An individual who seeks funding for DME, such as a power wheelchair, must satisfy a three-part test:

1. The individual must be eligible for Medicaid.

2. The item in question must be covered by New York’s Medicaid program, i.e., it must meet the definition of DME or some other coverage category (such as prosthetic devices).

3. The item must be medically necessary and cost effective.

        Medicaid also requires that the individual first seek funding from all available resources, including private insurance and Medicare, before it will pay for DME.

        Our last issue of IMPACT covered Part 1 of this test, eligibility for Medicaid. The premise of that article is that establishing or retaining Medicaid eligibility will be, in many cases, the most important factor in establishing eligibility for funding an expensive item of DME. This article will focus on Parts 2 and 3 of this three-part test — establishing that the item sought meets a Medicaid category for coverage (in nearly all cases this will be DME), and establishing that the item sought is medically necessary. Both of these tests will have to be met through Medicaid’s prior approval process.

        New York’s DOH, by regulation, has established a definition for DME:

        “Durable medical equipment means devices and equipment, other than prosthetic or orthotic appliances, which have been ordered by a practitioner in the treatment of a specific medical condition and which have all of the following characteristics:

(i) can withstand repeated use for a protracted period of time;

(ii) are primarily and customarily used for medical purposes;

(iii) are generally not useful to a person in the absence of illness or injury; and

(iv) are usually not fitted, designed or fashioned for a particular individual’s use. Where equipment is intended for use by only one person, it may be either custom-made or customized.” 18 N.Y.C.R.R. § 505.5(a).

        Most equipment sought by Medicaid recipients will meet the DME definition. For example, the DOH readily acknowledges that items like power and custom wheelchairs meet this definition. When an expensive wheelchair is sought, any controversy surrounding approval will involve the issue of medical necessity, as described below.

        The DOH will sometimes deny prior approval requests on the grounds that an item does not meet the definition of DME. For example, DOH had a longstanding policy that Medicaid funding of power scooters could not be approved. It took the position that scooters did not meet the DME definition as they were not “primarily and customarily used for medical purposes.” In three fair hearing decisions decided the same day, that position was ruled illegal, opening the door for a change of policy and funding of a power scooter in any case where it can be shown that the requested item is medically necessary. [See box, p. 207, below, summarizing the fair hearing decisions in those cases.]

        The prior approval regulations provide some guidance on what amounts to “medical necessity.” DME is considered medically necessary when it will “prevent, diagnose, correct or cure a condition that:

(1) causes acute suffering, or

(2) endangers life, or

(3) results in an illness or infirmity, or

(4) interferes with the capacity for normal activity, or

(5) threatens the Medicaid recipient with a significant handicap.” 18 N.Y.C.R.R.
§ 513.1(a).

        DME will be approved when it is necessary to “restore the recipient to his or her best possible functional level ...” Medical necessity “must be determined in light of the recipient’s specific circumstances and the recipient’s capacity to make use of the requested [DME] and appropriate alternatives.” Id. § 513.1(c).

        In most cases, the DME is sought to address some limitation created by a medical condition. Consider the person who seeks a power wheelchair to address their inability to walk. This limitation might be caused by cerebral palsy, muscular dystrophy, multiple sclerosis, or a spinal cord injury. The purpose of the wheelchair would be to allow the person to move about (in the home and in the community) despite the limitations caused by their disability.

        In striving to meet the medical necessity test through reports (and testimony if the case goes to a hearing), the case is strongest if traditional medical needs are stressed first. This would include using the DME to get out of bed, to use the bathroom, to take care of personal hygiene, and to get to medical appointments. The reports or testimony can then stress those activities that deal more with independence and “normal activity,” including doing one’s own shopping, cooking, getting to work or church, and attending recreational activities.

        Often, the focus of a dispute with DOH is not on whether the individual has a particular disability or whether they need equipment to overcome the effects of that disability. Instead, the focus is on what intervention can get the job done at the least cost. See id. § 513.4(d), which requires the ordering practitioner (i.e., doctor) and potential vendor to assure DOH that “adequate and less expensive alternatives have been explored.”

        Let’s go back to the person who seeks the power wheelchair. Medicaid will fund a number of items that are geared to help an individual achieve a higher degree of mobility. Consider the following groupings of mobility-enhancing devices:

• crutches, walkers, and wheeled walkers
  
• standard and manual wheelchairs
  
• custom, light weight, and ultra light manual wheelchairs
  
• power scooters
  
• basic power wheelchairs
  
• power wheelchairs with extra features
  (e.g., tilt in space, power tilt in space, standing mechanism)

        Each item can be and has been funded by Medicaid. However, as we move through this list, the cost will go from under $100 for the crutches to more than $10,000 for some power wheelchairs with special features. In fact, the cheaper items (crutches, walkers, standard manual wheelchairs) are not subject to prior approval and can be obtained with a doctor’s prescription.

        With the more expensive items, there will be a need to establish, through supporting documentation, that the item sought is the least costly alternative that can meet the individual’s medical needs (i.e., is medically necessary). It will also be necessary, in some cases, for the documentation to address the individual’s ability to both safely operate the equipment and receive benefit from its use.

[The prior approval regulations are found at 18 N.Y.C.R.R. Part 513.]

        Most DME is not purchased in a pharmacy or a retail store. Rather, it must be obtained from a participating Medicaid vendor. Many vendors are familiar with the prior approval process and will help Medicaid recipients with the application. Remember, however, that only the Medicaid recipient or those working on their behalf can give a case the individual attention to help assure success.

        As noted above, the Medicaid recipient must establish that DME is “medically necessary.” To do this, they must have the support of health professionals. For example, if a Medicaid recipient needs a power wheelchair, he or she generally needs the support of a physical or occupational therapist and a medical doctor. If they seek an augmentative communication device, they need the support of a speech pathologist and a doctor. In our experience, health professionals like occupational, physical and speech therapists are often the first to identify the need for DME.

        Assuming such support, the Medicaid recipient (or a person acting on their behalf) must then contact an approved vendor. The vendor will then work closely with the individual’s treatment team, including occupational and/or physical therapists. For example, if the individual needs a power wheelchair, the vendor will send an employee to their home or day program to determine the type and size wheelchair that is needed.

        Prior to submitting the prior approval request, the vendor will gather proof of medical necessity. The proof will include, at a minimum, a prior approval form (with or without a prescription) and a medical justification form, with all documents signed by a medical doctor. The medical justification summarizes information about the individual’s condition, the requested equipment, the exploration of other alternatives, and the effect of the requested equipment on the individual's home life, employment, education, and medical needs.

        The vendor and health professionals must assure the DOH that they are recommending the least costly alternative. Therefore, the medical justification should explain the other less costly alternatives that were considered and why they were rejected. The reports might also explain additional features and warranties that make the DME in question a better buy, as contrasted with features that are lacking with less expensive alternatives.

        We recommend supplementing the medical justification form with additional support if possible. This could come from another doctor,
(e.g., surgeon, cardiologist, etc.), occupational therapist, physical therapist, nurse, home health aide, psychiatrist, psychologist, or counselor. Professional letters of support from health professionals should be written on letterhead; summarize the writer’s professional qualifications; recite the length of time the writer has worked with the Medicaid recipient; provide details on the recipient’s diagnosis and prognosis; and explain clearly and simply, in compelling terms, why the DME, in his or her professional opinion, is medically necessary. [For a detailed guide to preparing reports, see our March-April 1998 issue of IMPACT, Report Writing: Justifying the Need for Assistive Technology, available on our website at www.nls.org/at/at0398.htm.]

        The Medicaid recipient should consider submitting letters from other sources, including schools, employers, case managers, family members, personal care aides, and neighbors. These letters can address more practical issues and explain why the individual needs the DME for matters of safety, independence, maximizing potential, and conducting activities of daily living. Remember, a piece of DME is “medically necessary” if it prevents or corrects a condition that “interferes with the capacity for normal living.” The letters should be on letterhead (where appropriate), neatly and legibly written, dated, and signed with a phone number and address.

        Once the prior approval form, the medical justification form, and the other supporting documents are gathered, the vendor will submit them to DOH, which has 21 days to grant approval, deny approval, or modify the request (unless DOH asks for additional information). If DOH requests additional information, it should be provided as soon as possible. If DOH denies the request, voids the request, or otherwise fails to act upon it within a reasonable time, the recipient can ask for a fair hearing to challenge the denial before the New York State Office of Temporary and Disability Assistance (OTDA), formerly the State Department of Social Services.

THE FAIR HEARING

        The DOH must send the recipient a written denial notice which should contain the reasons and the legal basis for the denial. (However, in the case of voided applications or items DOH refuses to recognize as DME, the DOH will probably not provide a notice.) If you receive a denial, it must also contain both a toll-free number to call and an address where the recipient may write to request a hearing. Since the toll-free number is usually busy, you may want to write to request a hearing. If you do so, we recommend that you mail the request from the Post Office and ask for a certificate of mailing. It costs about $.50 and will serve as proof that you mailed it. You can also request a hearing by FAX (518-473-6735), the method our office uses for requesting most hearings. Be sure to keep the fax receipt. Remember to include all of the reasons why you are asking for the hearing. Keep in mind that the hearing must be requested within 60 days of the date of the denial notice!

        Although DOH made the decision, the hearing request goes to OTDA. Following receipt of the fair hearing request, OTDA will send the recipient two notices. The first confirms receipt of the hearing request. The second notice contains the date, time and location of the hearing. The hearing will be before an administrative law judge (ALJ), who is an employee of OTDA with no prior knowledge of the case. The Medicaid recipient can appear with or without a
representative. Anyone can represent the individual at the hearing — it does not have to be an attorney. We recommend representation by a trained advocate.

        Prior to the hearing, the individual’s representative will want to review all documents that DOH will submit at the hearing. To do so, you must get a written authorization from your client allowing you to review the records. Send DOH the authorization and a letter requesting a copy of all documents to be submitted at the hearing. When you receive these documents, pay particular attention to the “Fair Hearing Summary” since it will contain the detailed reasons for their decision.

        The ALJ will conduct the hearing, hear the testimony of witnesses, and ask the witnesses questions. The entire hearing will be tape recorded. The ALJ will not issue a decision at the end of the hearing. Rather, he or she will make a recommendation to the Commissioner of OTDA. The Commissioner or his/her designee will then issue a decision.

        Medicaid DME hearings are unlike most other OTDA fair hearings. Often, no one from the DOH will testify on why it denied the prior approval request. Rather, DOH will submit the same documents it previously sent to you. If DOH does not intend to appear at the hearing, it must submit a waiver of appearance request. This waiver request should be included in the DOH file sent to you. If it is not, and a waiver request is not produced at the hearing, point this out to the ALJ.

        The hearing is the representative’s chance to show why the DME is needed The representative should make a complete presentation. Remember, the final decision maker will not be present at the hearing. Also, if you lose the hearing, you can appeal the decision in court. You must make a complete record at the fair hearing to increase your chances of success on appeal. The good news is if the vendor submitted a complete package at the application phase, much of your work is already done. If that package was incomplete, you can now gather further support to present to the ALJ.

        At the hearing, the representative should produce witnesses who are able to testify to the individual’s need for DME. Typically, this might include the individual, a friend or family member, and a health professional as witnesses. If you are the representative, you will be the first person to question witnesses and the ALJ may ask questions after you are done. We recommend that you prepare an outline of the questions you will ask so that you do not forget any. If the recipient can testify, have them do so. Through your questions, have them tell their story. What is the nature of their disability? How long has he or she been disabled? How does the disability affect their daily life? The ability to leave home? The ability to care for himself or herself? The ability to conduct daily living activities? The individual’s testimony can be very compelling, especially if you bring out one or more anecdotes that illustrate the problems they face without the DME they are seeking.

        You should also try to have one or more of the persons who submitted supporting documentation testify. Through your questions, they should speak to their professional qualifications (if any), their knowledge of the recipient, and their knowledge of the individual’s disability. Through your questions, they should speak to why the DME is “medically necessary.”

        As a practical matter, the health professionals who submitted documents may not be available to testify. When this is the case, have them write a supplemental letter on why the decision to deny the request for prior approval is wrong. They can add further details (if any) on why the DME is medically necessary. Submit the additional documents at the hearing.

        Last, we recommend that you prepare a short opening and closing statement. The opening statement should clarify the equipment that is at issue and how the evidence will establish that it is medically necessary. If there are other critical issues, those should be addressed with an explanation of how the evidence will establish the key facts. The closing statement is your opportunity to sum up your case and convince the ALJ why the denial of prior approval should be reversed.

        If you lose the fair hearing, you may appeal it in court. Generally, these appeals are filed as Article 78 proceedings in State Supreme Court. Alternatively, you may want to consider filing a civil action in federal district court. If a person is considering a court appeal, they should consult a lawyer and do so promptly, as the law provides strict time limits within which you may appeal
(e.g., four months for an Article 78 appeal in state court). A successful petitioner or plaintiff is often entitled to recover attorney’s fees from the defendant under either the State Equal Access to Justice Act or 42 U.S.C. § 1988 (on a federal claim filed pursuant to 42 U.S.C. § 1983). [Attorneys can obtain sample pleadings and briefs by calling the AT Advocacy Project at 716-847-0650.]

        This article has discussed the prior approval process for obtaining Medicaid funding of durable medical equipment. Vendors and community agencies who frequently deal with prior approval requests may want to keep this newsletter handy for reference, along with a copy of the March-April 1998 newsletter on Report Writing.

        Where an individual faces an appeal – either a fair hearing or a court appeal – a call to the AT Advocacy Project at 716-847-0650 will allow us to help you to identify the next steps in the process. If necessary, we may also be able to help you find an attorney or other representative to assist you with the appeal. Representatives who are doing their first Medicaid appeal should also feel free to call us.

Our last issue of IMPACT was our Summer 2000 issue containing our feature article, Medicaid Part I: Overview of Eligibility Criteria; Special Disability-Related Provisions. Despite our best intentions, our newsletter publication schedule suffered this past year as we adjusted to reductions in funding at a time when demand for our services has been the highest.

Our plan is to continue IMPACT as a quarterly publication. Our next issue, with important news about Medicare policy changes for funding augmentative and alternative communication (AAC) devices, should be out by mid-summer.

AT COURT WATCH

Medicaid Denials of Custom and Power
Wheelchairs for Nursing Home Residents Challenged

        Two New York cases challenge the Department of Health’s routine denial of custom and power wheelchairs to residents of skilled nursing facilities. In Taher v. Novello (N.Y. App. Div., 4^th Dept.) (co-counseled by our State AT Project, the Western New York Law Center and the private firm of Hodgson, Russ, et al.), the three petitioners each sought custom reclining wheelchairs. In Spina v. Novello (E.D.N.Y.)(handled through Cardozo Law School in New York City), the two plaintiffs sought power wheelchairs. In both cases, the DOH denied the requests without considering individual needs, contending that the nursing home was responsible for meeting any of these needs as part of its per diem rate.

        In three fair hearing decisions issued on October 18, 2000, the State Office of Temporary and Disability Assistance (OTDA) has ruled that power scooters can be funded by Medicaid when they are medically necessary.

Welcome to Neighborhood Legal Services’ data bank!

        Do you have decisions of interest relating to assistive technology in the following areas? Medicaid, Medicare, Vocational Rehab, VA, Special Education, Physically Handicapped Children’s Program, Private Insurance, etc.

        Other advocates can benefit from your experience. If you have fair hearing decisions or are involved in or have completed litigation in these areas, we want to know about it.

New criteria for Medicare Funding of Alternative and Augmentative Communication (AAC) Devices
We will also be updating a number of our older articles.

Previous IMPACT Newsletters Table of Contents | NLS Home Page | Feedback