The Administrative Law Judge (ALJ) issued a decision dated July 10, 2004. The appellant has asked the Medicare Appeals Council to review this action. The Council grants the request for review because the action, findings or conclusions of the ALJ are not supported by substantial evidence. See 20 C.F.R. �� 404.967 and 404.970, incorporated by reference in 42 C.F.R. � 422.608.

The Council has carefully considered the record which was before the ALJ, as well as the request for review filed by the appellant, which is marked as Exhibit MAC-1.

The beneficiary was an enrollee in a Medicare+Choice (M+C) plan, Secure Horizons, offered by PacifiCare. She had been diagnosed as suffering from multiple sclerosis and required a wheelchair for mobility. Initially, she used a manual wheelchair, but due to her declining physical condition, she switched to a motorized wheelchair.

The beneficiary's husband constructed two ramps so that the beneficiary could enter and exit her home and van in her manual wheelchair. However, when the beneficiary began using a motorized wheelchair, the ramps built by her husband were not strong enough to support the additional weight of the motorized wheel chair. Accordingly

[a]t the direction and as prescribed by her treating physician, the beneficiary requested that her M+C plan provide or pay for a multi-fold ramp and a threshold ramp in order to allow her to have access to her home and van with her motorized wheelchair. The M+C plan denied coverage, finding that the ramps were "not primarily medical in nature and therefore not a covered benefit."

Dec. at 2.

The beneficiary appealed the M+C plan's denial of authorization for multi-fold and threshold ramps, and the matter was referred to the Center for Health Dispute Resolution (CHDR) for reconsideration. See 42 C.F.R. � 422.592. On reconsideration, CHDR upheld the M+C plan's denial of coverage, finding that the items requested were not covered by Medicare. Specifically, CHDR determined that the "outside wheelchair ramp and a van ramp do not meet the Medicare definition for durable medical equipment. . . . By their very definition, outside wheelchair ramps are not designed to be used within the home." Reconsideration Determination dated August 28, 2002. The beneficiary subsequently requested an ALJ hearing, which was held on March 18, 2003.

On June 27, 2003, an ALJ decision was issued finding that the requested ramps "were covered under Part B of Medicare." Dec. at 4. Accordingly, the M+C plan was found liable for the items at issue. The M+C plan requested review by the Medicare Appeals Council.

On November 19, 2003, the Medicare Appeals Council vacated the ALJ decision and remanded the case for further proceedings, in part because the tape recording of the administrative hearing was not available. In its remand order, the Council noted that the beneficiary was no longer enrolled in the M+C plan. However, it concluded that while the M+C plan may no longer be covering beneficiaries in the service area where she resided, "its obligations to the beneficiary arose at the time the services were requested," i.e., when she was enrolled in the plan, and "the M+C plan is obligated to furnish or pay for services, otherwise covered by Medicare, at the time they are requested by an enrollee, irrespective of any subsequent dis-enrollment." Remand Order at 3. Accordingly, the beneficiary had a right to appeal the M+C plan's denial of coverage. On remand, the Council instructed the ALJ to consider the "applicable law, regulations, and CMS coverage issuances in determining whether the ramps requested by the beneficiary are covered by Medicare," as well as the "law and regulations governing the obligations of M+C plans." Remand Order at 5.

A second administrative hearing was held before a new ALJ, and the ALJ issued a new decision on July 14, 2004. The ALJ found that

The multi-fold ramp and threshold ramp are medically necessary in order to allow [the beneficiary] to have access to her home and van [and] are durable medical equipment as defined under the Act and thus are covered benefits under Part C of the Act.

Dec. at 4. Accordingly, the ALJ decided that the M+C plan "should cover the costs of the ramps in the instant case as they are covered benefits under the Medicare Act." Id.

The M+C plan filed another request for review by the Medicare Appeals Council. It asked that the Council review the second ALJ decision based on the ALJ disregarding "the applicable Medicare statutory, regulatory and coverage policies" in deciding that the requested ramps are durable medical equipment (DME) covered by Medicare. Specifically, it is asserted that

the ALJ neither confirmed that the requested item fell within a Medicare covered benefit category nor did he provide substantial or credible evidence that the item requested met Medicare's definition of DME, nor did he rely on Medicare statutes that support the requested item[s] as medically necessary and reasonable.

Exhibit MAC-1 at 2.

Section 4001 of the Balanced Budget Act of 1997 (Pub. L. 105-33) established the M+C Program. See sections 1851-1859 of the Social Security Act (Act). Pursuant to section 1851, eligible individuals may elect to receive Medicare benefits under the M+C Program by enrolling in an approved M+C plan.

A M+C plan must offer its enrollees "basic benefits," i.e., "All services that are covered by Part A and Part B of Medicare . . .and available to beneficiaries residing in the plan's service area." 42 C.F.R. � 422.101(a). In providing "basic benefits," a M+C plan must comply with national coverage determinations (NCDs) issued by CMS, "[g]eneral coverage guidelines included in original Medicare manuals and instructions unless superceded by operational policy letters or regulations . . . ," and local medical review policies (LMRPs) issued by Medicare intermediaries and carriers. 42 C.F.R. � 422.101(b). At its discretion, a M+C plan may also offer additional (or "supplemental") benefits beyond those covered by "traditional" Medicare. 42 C.F.R. � 422.102. All benefits are typically set forth in an "Evidence of Coverage," issued to an enrollee upon enrollment "and at least annually thereafter." 42 C.F.R. � 422.111(a).

Section 1832(a) of the Act provides for Medicare Part B coverage of "medical and other health services." Section 1861(s)(6) of the Act specifies that "medical and other health services" includes DME. See also section 1861(n) of the Act. Medicare will cover an item under the DME benefit if it (1) meets the statutory and regulatory definition of DME, and ((2) is medically "reasonable and necessary" within the meaning of section 1862(a)(1)(A) of the Act. Medicare regulations define covered DME as equipment that:

• Can withstand repeated use;
• Is primarily and customarily used to serve a medical purpose;
• Generally is not useful to an individual in the absence of an illness or injury; and
• Is appropriate for use in the home.

42 C.F.R. � 414.202. The Medicare Coverage Issues Manual (MCIM), � 60-9. now known as the Medicare National Coverage Determinations (NCD) Manual, � 280.1, provides guidance regarding coverage of specific items of DME. ⁽¹⁾ In addition, the Medicare Carriers Manual (MCM), � 2100.1, now known as the Medicare Benefits Policy Manual, � 110.1, sets forth information regarding the definition of covered DME.

We find that the ALJ's findings and conclusions regarding Medicare coverage of the requested ramps as DME are not supported by the evidence of record. Specifically, the ALJ erred in deciding that the requested ramps met the regulatory definition of covered DME.

As noted above, in order to be covered by Medicare as DME, an item is required to meet all of the regulatory criteria. The ALJ correctly recognized these requirements. Dec. at 3. However, he incorrectly applied them in this case.

First, he found that "[t]he ramps are able to withstand repeated use." Dec. at 3. The Council concurs with this finding.

Second, he determined that their "primary purpose is to serve a medical purpose, to allow the beneficiary to use her motorized wheelchair outside her home and to be able to use her automobile to transport her to physician appointments, work and other places outside of her home." Dec. at 3-4. The Council does not agree that these activities are primarily medical.

The Council does not find that the requested ramps are "primarily and customarily used to serve a medical purpose." 42 C.F.R. � 414.202. Ramps serve a variety of purposes, including the movement of heavy or bulky loads from one level to another. The Council does not dispute that the beneficiary can benefit from the availability and use of ramps. However, the primary and customary use of a ramp does not serve a medical purpose. A ramp is useful even when there is no illness or injury present.

Section 110.1 of the Medicare Benefits Policy Manual states that "[e]quipment which is primarily and customarily used for a nonmedical purpose may not be considered 'medical' equipment for which payment can be made . . . . This is true even though the item has some remote medically related use." Furthermore, "[e]quipment which basically serves comfort or convenience functions or is primarily for the convenience of a person caring for the patient, such as elevators, stairway elevators, and posture chairs do not constitute medical equipment." See MCIM � 60-9. By analogy, a ramp which assists the beneficiary in entering and exiting her home and vehicle is not a piece of equipment that is primarily and customarily used to serve a medical purpose. Even if the beneficiary uses the ramps when she goes to medical appointments, as referenced by the ALJ, this usage does not support a determination that such devices are "primarily and customarily used to serve a medical purpose."

Third, the requested ramps do not meet the requirement that the item at issue "[g]enerally is not useful to an individual in the absence of an illness or injury." 42 C.F.R. � 414.202. As noted above, ramps are useful in a variety of settings where no illness or injury may exist.

Finally, the requested ramps to do not meet the fourth requirement that the item "[i]s appropriate for use in the home." Id. The ALJ found that the requested ramps are "attached to the home and used to access the home from outside," thus meeting this criterion. Dec, at 4. This is incorrect as the actual words of the regulation require that an item be used within the home, and not to solely aid in leaving and entering the home. See also 42 C.F.R. � 410.38(a).

In conclusion, the Council finds that the requested ramps are not a covered Medicare benefit because they do not constitute DME under the statute and regulations. Because the ramps are not covered by Medicare, the M+C plan is not obligated to cover them as "basic benefits." 42 C.F.R. � 422.101. Moreover, there is no evidence in the record to support the proposition that the M+C plan should cover the requested items as "supplemental benefits." 42 C.F.R. � 422.102.

DECISION

It is the decision of the Medicare Appeals Council that the appellant M+C plan is not obligated to cover and pay for the ramps requested by the beneficiary.

Date: November 28, 2004

Thomas E. Herrmann
Administrative Appeals Judge

M. Susan Wiley
Administrative Appeals Judge

1. Effective October 1, 2003, all CMS manuals can be found at http://www.cms.hhs.gov/manuals.