1999 Conference Proceedings

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Michael Kluk
Senior Attorney
Protection and Advocacy, Inc.
100 Howe Ave.
Suite 235N
Sacramento, CA 95825
(916) 488-9950

Recipients of Supplemental Security Income (SSI), Aid to Families With Dependent Children (AFDC) and In-Home Supportive Services (IHSS) automatically receive Medicaid. Others may receive Medicaid under the Medically Needy and Medically Indigent Child Medicaid programs, though often there is a monthly charge or share of cost. Some qualify under one of the Federal Poverty Level Programs. This paper will assume eligibility for Medicaid and discuss Medicaid's responsibility to provide technology to recipients.

Assistive technology under the Medicaid program will generally be classified as medical supplies, durable medical equipment or prosthetic or orthotic equipment and will require prior approval. Many Medicaid services are provided subject to "utilization controls." For example, physical and occupational therapy visits are often limited by state regulation. In addition, some states have lists of approved services or equipment.

The existence and use of such lists is currently controversial. The federal Health Care Financing Administration has said that such lists cannot be used unless they have a clear and well publicized exception process.

Each state is allowed to establish a definition for medical necessity. It is important to know how your state defines the term and to be able to argue that the equipment or services needed come within the definition. In all instances, technology and service must be considered medically necessary. A commonly used definition requires proof that the device is necessary to preserve bodily functions essential to activities of daily living or to prevent significant physical disability. Items promoting comfort or well-being alone are covered only if their primary purpose satisfies this criteria.

Medicaid will generally not pay for treatment, medicines or devices that are considered experimental. It generally will cover, with prior authorization, services which are investigational. For certain low incidence disabilities, what may appear to be "investigational" in fact is not if the treatment is one which is generally accepted by those health care professionals who treat the low incidence disability.

The federal courts have determined that the question of medical necessity is first one for the individual's treating physician, not agency personnel or even Medicaid physician consultants. There is a presumption in favor of the treating doctor to determine medical need.

In some cases a different medical necessity standard is applied. For persons in nursing facilities, federal law provides that individuals who are in long-term care facilities are entitled to receive "the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accord with the comprehensive assessment and plan of care." This, is broader than the definition of medical necessity adopted by most states.

The Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program is a federal Medicaid obligation imposed on the states as a condition of receiving federal Medicaid money. Under EPSDT, recipients up to the age of 21 (referred to as children by the program) are not limited to the Medicaid services available to adults but may, based on medical necessity, be entitled to an expanded scope of benefits.

There is a very broad treatment mandate under EPSDT. Ordinarily, states have the option of not covering certain services in their state plan. However, under EPSDT, each state is required to cover any optional service -- that is anything it could have opted to include in its Medicaid program -- if the EPSDT medical necessity definition is met.

A Medicaid recipient's doctor or medical provider must normally submit a treatment authorization request with documentation of the recipient's need for the requested services, medicine or device. The documentation must explain why the service is necessary to protect life, to prevent significant illness or disability, or to alleviate severe pain. The provider must submit complete medical justification with the TAR form because that is the only thing the Medicaid analyst reviews.

Most technology will come under the broad category of durable medical equipment. This is generally defined as equipment prescribed by a licensed practitioner to meet medical equipment needs of the patient. On its face, this is a very broad definition. It includes equipment such as canes, crutches, walkers, oxygen therapy equipment, basic and custom wheelchairs and other devices. The other large category that covers technology is prosthetic and orthotic appliances. These are appliances prescribed by a physician, dentist or podiatrist for the restoration of function or replacement of body parts.

The provision of durable medical equipment and medical supplies requires the prescription of a qualified provider in all instances. Household items, items not generally used primarily for medical care and articles of clothing are not covered even if they meet a legitimate medical need. If a household item will serve a recipient's medical needs, a medical device will not be authorized. Air conditioners, air filters, food blenders, orthopedic mattresses and the modification of automobiles are not covered. Authorization for durable medical equipment is limited to the lowest cost item that will adequately serve the recipient's medical needs.

Federal regulations require that skilled nursing facilities, intermediate care facilities (long term care facilities) and intermediate care facilities for persons with mental retardation provide their residents with some necessary technology. Residents of long term care facilities must receive the necessary services to attain and maintain the highest possible mental and physical functional status, as defined by the comprehensive assessment and plan of care. They must receive services that will enhance their ability to "use speech, language or other functional communication systems" and their "ability to transfer and ambulate." Available devices should include wheelchairs, medical equipment, some prosthetics and even some AAC devices. Long term care facilities are required to provide supportive services including speech, occupational and physical therapy and audiology services.

Increasingly, states are beginning to authorize payment for alternative and augmentative communication (AAC) devices. Most states have now acknowledged that such devices are a covered benefit when found to be medically necessary. There are several basis under which AAC devices can be claimed as a Medicaid benefit. Such devices meet the definition of durable medical equipment and even of prosthetic devices. Most directly, however, the federal definition of speech therapy services includes "any necessary supplies and equipment."

Thus, if an AAC device is the only means available to provide a recipient with the ability to communicate effectively, it should be a Medicaid benefit. A Medicaid recipient has the right to challenge any decision Medicaid makes or doesn't make which the recipient believes to be wrong. This can be denying the request for purchase of durable medical equipment, or the repair or servicing of a device or refusing to continue rental of equipment. Medicaid decisions are challenged by requesting an administrative hearing. While the actual process may vary from state to state, each state is required to provide an opportunity for the recipient to explain why he or she disagrees with a denial of requested technology. An unfavorable decision can be appealed to state or federal court.

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