Medicare Funding of Assistive Technology

Hillary Sklar, Esq.Disability Rights California

Los Angeles Regional Office(213) 427-8747

May 3, 2011

PAAT Grant

• PAAT (Protection & Advocacy for Assistive Technology). The PAAT program was created in 1994 when Congress expanded the Technology-Related Assistance for Individuals with Disabilities Act (Tech Act) to include funding for P&As to assist individuals with disabilities in the acquisition, utilization, or maintenance of assistive technology devices or assistive technology services through case management, legal representation and self advocacy training.

Laws, Regulations, and Policy • Social Security Act, Title 18

• Center for Medicare and Medicaid Services (CMS) regulations

• CMS Manuals – 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).

– “Medicare National Coverage Determinations Manual”: www.cms.hhs.gov/manuals/downloads/ncd103c1_Part4.pdf

Laws, Regulations, and Policy cont’d

• Durable Medical Equipment Regional Carrier (DMERC) Manuals for four regional DMERCs

• California = Region D

• Noridian Administrative Services (Region D)

https://www.noridianmedicare.com/dme/index.html%3f

- Local Coverage Determinations (LCD)

Medicare Eligibility

• Medicare is almost universal for U.S. residents age 65 and older.

• Persons age 65 or older, who do not automatically qualify for Part A, may enroll by paying the Part A premium.

Medicare Eligibility cont’d

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; or,

b. Have End-Stage Renal Disease, i.e., a kidney impairment that requires regular dialysis or kidney transplantation to maintain life.

c. NOTE: For persons diagnosed with amyotrophic lateral sclerosis (ALS), sometimes called Lou Gehrig’s disease, there is no 24-month waiting period.

Medicare Eligibility cont’d

• 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. All others must file an application.

Medicare Eligibility cont’d

Medicare has no income or resource rules.

• Unlike Medicaid, Medicare recipients need not have limited income and resources.

• 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 presentation.

Questions on Medicare eligibility?

What is Covered? What is Excluded?

General considerationsA. Statutory exclusions B. Medicare’s Medical Necessity TestC. National Coverage DecisionsD. Local Coverage Determinations

General considerations

• Generally, Medicare expects a piece of equipment to last five years.

• Medicare will cover replacement DME or the cost of repair under certain circumstances if the carrier finds:

- That the item is lost or irreparably damaged; and

- That the loss or damage is not due to misuse or neglect

on your part.

• Advanced Determination of Medicare Coverage (ADMC)

Advanced Determination ofMedicareCoverage (ADMC)

• Advance Determination of Medicare Coverage. A beneficiary can ask for a determination of coverage in advance of actually purchasing durable medical equipment.

• Medicare law emphasizes the importance of an ADMC for customized items. The determination of coverage looks at what is rated in light of Medicare rules, including National Coverage Determinations, Local Coverage Determinations, and the medical documentation of need that you submit.

ADMC cont’d• The key part of getting a favorable ADMC is the medical

documentation for why you need a wheelchair, why that wheelchair needs to be a power wheelchair, and why you need the special features. Because Medicare only covers the DME you need to function in your home, the medical documentation should talk about what you need for activities of daily living in your home.

• See Disability Rights California’s Assistive Technology Manual, Chapter 11 – Medicare – Question 41 and 42. See also, Attachments 11B and 11C to Chapter 11. http://www.disabilityrightsca.org/pubs/533101.pdf

Statutory exclusions

• 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.

Medicare’s Medical Necessity Test

• 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."

• The quoted language is the basis for Medicare's so-called "medical necessity" test.

National Coverage Decisions

• 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. See, https://www.cms.gov/center/coverage.asp

• Some NCDs allow for coverage of specific items; other rules specifically exclude coverage.

• NCDs will often be referenced by Medicare decision makers when they approve or deny coverage.

National Coverage Decisions cont’d

• 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).

– 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.

– NCDs are considered binding on Administrative Law

Judges (ALJ).

Local Coverage Determinations

• 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).

• Medicare contractors have adopted more than 9,000 LCDs under this mandate, and they play an important role in electronic claims processing.

Local Coverage Determinations cont’d

• 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.

• LCDs are binding on the QICs who will soon perform the review/reconsideration level in Medicare appeals.

• LCDs are not binding at the ALJ stage of appeals, although they might be given some deference.

Coverage of Assistive Technology

• 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.

Questions on coverage and exclusions?

DMEDME includes, among other things, "iron lungs, oxygen

tents, hospital beds and wheelchairs ... used in the patient's home ...“

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.

“Home”

• “Home” for purposes of DME coverage means anything other than a hospital or a medical facility that meets the basic definition of a medical facility. “Home” can include a residential care facility (“Board and Care”), or the home of a relative or friend.

• For instance, Medicare will not cover wheelchair features you need for mobility in the community unless you also need those features for mobility in the home.

• Medicare has denied coverage for a portable oxygen system needed to go to the doctor because the need is for use out of the home.

Orthotics• Orthotics include leg, arm, back and neck braces.

• 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.”

• 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.“

Payment Rules

• Medicare pays 80% of the approved charge for DME.

• The beneficiary is responsible for a 20% co-payment when a Medicare-participating supplier is used.

• Medi-Gap: Medicare Supplemental Insurance

• Medi-Medi’s

Questions on DME, Home, Orthotics or Payment Rules?

Medi-Gap

• Medigap policies are a form of private supplemental insurance that pay for part or all of Medicare’s coinsurance and deductibles.

• Unlike certain Medicare Advantage (MA) plans, Medigap policies do not restrict you to a network of providers and facilities. If you have a Medigap policy, you can see any doctor or use any hospital that accepts Medicare.

• Note: You do not need Medigap coverage if you have an MA plan, or receive full Medi-Cal benefits.

• Consult with your local Health Insurance Counseling and Advocacy Program (HICAP) at 1-800-434-0222. http://www.cahealthadvocates.org/HICAP/

Medi-Medi’s• Medi-Cal is responsible for paying the amount that is

above Medicare’s rate. Charpentier v. Belshe, 1994 WL 792591 (E.D. Cal. Dec. 21, 1994).

• You and the provider must first apply for prior approval from Medi-Cal for the equipment through a Treatment Authorization Request (TAR). If Medi-Cal approves the TAR, it will tell the provider how much Medi-Cal will pay. The provider then delivers the equipment to you and submits a bill electronically to Medicare. After Medicare pays what it considers to be 80% of the Medicare-approved rate, the billing goes electronically to Medi-Cal which pays 20% of the Medicare rate.

Medi-Medi’s cont’d

• See DRC’s Assistive Technology Manual - Chapter 10 - for information on Medi-Cal.

• Medical justification is critical. Why you need a wheelchair, why that wheelchair needs to be a custom manual or custom power wheelchair, and why you need the special features.

• The appropriate Medi-Cal medical necessity standard must also be addressed as part of the medical justification.

Any questions on Medi-Gap or Medi-Medi?

Medicare Appeals

The Medicare appeals process will be different if the person is enrolled in traditional/original Medicare or Medicare Managed Care (Medicare Advantage).

Step 1: Redetermination*

Step 2: Reconsideration by Qualified Independent Contractor*

Step 3: Administrative Law Judge Review*

Step 4: Medicare Appeals Council*

Step 5: Federal Court*

* Must mind the established timelines or your appeal will be unsuccessful

Traditional/Original Medicare Appeals Process

Step 1: Reconsideration by Plan*

Step 2: Reconsideration by Independent Review Entity*

Step 3: Administrative Law Judge Review*

Step 4: Medicare Appeals Council*

Step 5: Federal Court*

* Must mind the established timelines or your appeal will be unsuccessful

Medicare Advantage Appeals Process

Traditional Medicare Appeals

For detailed information about appeal rights and timelines:

http://www.cahealthadvocates.org/appeals/coverage.htm

http://www.disabilityrightsca.org/pubs/533101.pdf

Medicare Managed Care Appeals

For detailed information about appeal rights and timelines:

http://www.cahealthadvocates.org/appeals/appeals.html

http://www.disabilityrightsca.org/pubs/533101.pdf

Questions on Medicare appeals?

Other Issues

• The Affordable Care Act of 2010

• DMEPOS (Competitive Bidding)

The Affordable Care Act of 2010

• Affordable Care Act of 2010, Pub. L. 111-148, enacted March 23, 2010, effective for DME ordered after January 1, 2010.

• A face-to-face encounter with a physician is required before DME can be prescribed. § 6407(b).

• Only Medicare enrolled physicians or other “eligible professionals” can prescribe DME. §6405(a)-(c).

The Affordable Care Act of 2010 cont’d

– An “enrolled physician” is one who has registered with Medicare in accordance with rules established by the Secretary of HHS. §6405(a)

– An “eligible professional” is one who has enrolled under Medicare’s Quality Care Reporting System for providers. §6505(a).

• For additional information, see CMS’ “Open Door Forum: Home Health, Hospice, & Durable Medical Equipment, (https://www.cms.gov/OpenDoorForums/17_ODF_HHHDME.asp)

DMEPOS (Competitive Bidding)

• DMEPOS = Durable Medical Equipment Prosthetics Orthotics Supplies

• Equipment and supplies covered under Medicare Part B• Changes:

– The way Medicare pays– How much is paid– Who can furnish DMEPOS items

• Called “Competitive Bidding Program”– Began July 1, 2008– In California, San Bernardino, Ontario, and Riverside are initial

competitive bidding areas (CBAs)– Applies if residing in or visiting a CBA

DMEPOS (Competitive Bidding) cont’d

• Purposes:– Limit fraud and abuse– Save beneficiaries money

• Affects beneficiaries who have Original Medicare only• DMEPOS (among others) affected:

– Standard power wheelchairs and scooters– Complex rehabilitative power wheelchairs

• Beneficiaries must use the contract supplier selected by Medicare

DMEPOS (Competitive Bidding) cont’d

• Repairs – may be installed by either a contract supplier or any Medicare enrolled, non-contract supplier.

• Complete replacement – must be completed by a contract supplier in the CBA.

• Call 1-800-MEDICARE for more information

• www.medicare.gov/supplier (DEMOS supplier locator)

Questions on the Affordable Care Act of 2010 or

Competitive Bidding?

Resources

• Accessing Assistive Technology manual, Chapter 11, Medicare

http://www.disabilityrightsca.org/pubs/533101.pdf

http://www.disabilityrightsca.org/pubs/533101.htm

(available in English, Spanish, and Chinese)

• Accessing Assistive Technology manual, Chapter 10, Medi-Cal

http://www.disabilityrightsca.org/pubs/533001.htm

(available in English, Spanish, and Chinese)

• “

Resources cont’d

• Preparing Letters of Medicaid Medical Justification letters:

http://www.nls.org/av/winter06.htm

• CMS Durable Medical Equipment (DME) Center

https://www.cms.gov/center/dme.asp

• HICAP (Health Insurance Counseling and Advocacy Program)

1-800-434-0222; http://www.cahealthadvocates.org/index.html

Contact Disability Rights California

• www.disabilityrightsca.org• Regional Offices

– Sacramento– Bay Area – Fresno– Los Angeles– San Diego

Toll Free: (800) 776-5746

TTY: (800) 781-4546