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Obtaining an Augmentative and Alternative Communication (AAC) Device through Medicare
The Decision Making and Appeals Process for Non-HMO Participants
April 1999
Assistive Technology Funding & Systems Change Project
United Cerebral Palsy Associations
Suite 700, 1660 L Street, N.W.
Washington, D.C. 20036
(V) 1-800-872-5827; (fax) 202-776-0414
(email) atproject"ucpa.org
National Assistive Technology Advocacy Project
A Project of Neighborhood Legal Services, Inc.
Buffalo, New York
Individual Authors:
Lewis Golinker, Esq. James R. Sheldon, Jr., Esq.
Director, Assistive Technology Law Center National Assistive Technology Advocacy Project
Suite 507, 202 East State Street Neighborhood Legal Services, Inc.
Ithaca, New York 14850 295 Main Street, Room 495
(v) 607-277-7286; (fax) 607-277-5239 Buffalo, New York 14203
(email) Lgolinker@aol.com (v) 716-847-0650; (fax) 716-847-0227
(tdd) 716-847-1322
(email) jsheldon@nls.org
This Publication is Funded Through a Contract Received From the National Institute on Disability and Rehabilitation Research, U.S. Department of Education.
The Assistive Technology Funding & Change Project is fully funded under Contract # HN9404001 from the National Institute on Disability and Rehabilitation Research, U.S. Department of Education, to United Cerebral Palsy Associations, Inc. and its subcontractors.
The opinions expressed herein 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.
TABLE OF CONTENTS
INTRODUCTION
THE MEDICARE PROGRAM: AN OVERVIEW
MEDICARE AND AAC DEVICE FUNDING: CURRENTGUIDANCE IN LAW, POLICY, HEARING DECISIONS
Hearing Decisions Have Awarded Funding
THE MEDICARE APPROVAL PROCESS FOR AAC DEVICES
No Medicare Prior Approval Process
Purchase or Rental of the AAC Device Must Precede Filing of the Claim
MEDICARE AAC DEVICE CLAIMS: REQUIRED DOCUMENTATION
MEDICARE DURABLE MEDICAL EQUIPMENT REGIONAL CARRIERS
MEDICARE AAC DEVICE DECISION MAKING AND APPEALS PROCESS
Step 1: Initial Decision
Step 2: Reconsideration
Step 3: Carrier Hearing
Step 4: Administrative Law Judge Hearing
Step 5: Departmental Appeal Board
Step 6: Judicial Review
Summary Table: Timelines and Monetary Thresholds for Medicare Decision Making and Appeals
ADDITIONAL INFORMATION AND ASSISTANCE
Options for Funding AAC Devices in Your State
Advocates & Attorneys for Medicare AAC Device Claims
National Technical Assistance Providers
SLP AAC ASSESSMENT AND ASSESSMENT REPORT INSTRUCTIONS
AAC Assessment
How Will the Assessment Report be Used?
For additional information
INTRODUCTION
Medicare will provide reimbursement for the cost of purchase or rental for augmentative and alternative communication (AAC) devices.
An augmentative and alternative communication (AAC) device, often referred to as an augmentative communication device, allows a person to speak by electronic means. The AAC device is typically either a dedicated unit, used solely for producing speech, or a personal computer (laptop or notebook) which doubles as a communication device.
The cost of a device may be $1,000 or less, but is often $4,000 or more and can be as high as $8,000 or more. Most state Medicaid programs and many private insurance plans will cover AAC devices when they are necessary to treat a severe expressive communication disability.
Medicare decision makers have historically stated that AAC devices are not covered. They have relied on a National Coverage Decision (NCD) which says that AAC devices are convenience items and are not covered by Medicare. Despite the existence of the NCD, experience tells us that Medicare will provide reimbursement for the cost of purchase or rental if a person goes through the appeals process and presents his or her case to an administrative law judge (ALJ).
Medicare funding for AAC devices will come from one of two sources, based on the way in which the recipient is enrolled in Medicare. Most recipients are part of the "traditional" or "fee-for-service" Medicare program, and for them, reimbursement will come from the federal government. Other recipients are enrolled in a managed care plan through a Medicare health maintenance organization (HMO); their AAC device reimbursement will come from the HMO.
This booklet describes the traditional, fee-for-service program. A separate document has been developed for persons enrolled in Medicare HMOs. It can be obtained from United Cerebral Palsy Associations or the National Assistive Technology Advocacy Project. See Additional Resources, p. 14. This booklet provides answers to the most common questions a Medicare beneficiary, family member, services provider or advocate may have regarding the Medicare decision making and appeals steps that apply to AAC device reimbursement claims:
- what documentation or proof has to be submitted to Medicare?
- where should information be sent and who reviews it?
- how is the review conducted (on the record; by telephone; in person)?
- how long will the review take to decide?
- can I win at this decision making or appeal level?
- what do I do next and how long do I have to do it? what help is available?
- what can I do if the process does not follow the outline provided here?
Caution: This booklet is specific to AAC devices. Under current Medicare policy and practice, AAC devices will not be approved until one gets to an ALJ hearing. However, many other items, like custom wheelchairs, are often approved upon first application or at an earlier appeal level.
THE MEDICARE PROGRAM: AN OVERVIEW
Medicare is the nation's largest health services funding program. Many people who need AAC devices, whether the need arises from a congenital impairment, such as cerebral palsy, or an acquired impairment, such as ALS or stroke, can obtain funding for their AAC devices from Medicare.
This federal health insurance program covers three classes of recipients:
- persons age 65 or older
- persons receiving Social Security Disability Insurance (SSDI) payments (including many adults with developmental disabilities who receive SSDI on the earnings record of a parent)
- persons with end stage renal disease
Medicare is divided into two parts, known as Part A and Part B. Medicare Part A, known as hospital insurance, covers inpatient care, nursing home care, hospice care, home health services and durable medical equipment. For most Medicare beneficiaries, there is no premium required to obtain Part A coverage. Medicare Part B, known as supplemental medical insurance, covers various outpatient services, including physician services, durable medical equipment, prosthetic and orthotic devices, and home health services. To enroll in Part B, a Medicare beneficiary must pay a monthly premium ($45.50 in 1999). State Medicaid programs may pay the Part B premiums for persons with low income. This usually is done through the Qualified Medicare Beneficiaries or QMB program.
AAC devices will be covered under Part B as an item of durable medical equipment or as a prosthetic device:
- Durable Medical Equipment (DME): Medicare's regulations define DME as equipment that (1) can withstand repeated use; (2) is primarily and customarily used to serve a medical purpose; (3) generally is not useful to an individual in the absence of illness or injury; and (4) is appropriate for use in the home. The dedicated AAC device would meet this definition and ALJ hearing decisions have cited the DME category as available for funding AAC devices.
- Prosthetic Devices: These are devices "that replace all or part of an internal body organ." Medicare policy expands on this statutory definition to include devices that "replace all or part of the function of a permanently inoperative or malfunctioning external body member or internal body organ." AAC devices can replace the function of the impaired speech center of the brain; of impaired nerve pathways between the brain and speech production organs and structures; and of impairments directly to the speech production organs and structures.
MEDICARE AND AAC DEVICE FUNDING: CURRENT
GUIDANCE IN LAW, POLICY, HEARING DECISIONS
Neither the law nor the Medicare regulations mention AAC devices. The law and regulations do mention the DME and prosthetic devices categories which have been referenced in hearing decisions as available to cover AAC devices.
National Coverage Decision (NCD) 60-9 is a policy issued by the federal Health Care Financing Administration. It lists augmentative communication devices and communicators as not eligible for DME coverage, claiming they are not primarily medical in nature. It does not address the prosthetic devices category. This policy is binding on decision makers at the DME Regional Carrier (DMERC) levels of initial review and appeal. It is not binding on administrative law judges (ALJs), the Departmental Appeal Board or the federal courts.
Hearing Decisions Have Awarded Funding
Described below are four AAC device appeals that resulted in favorable ALJ hearing decisions.
Matter of Emlyn J (Calif. 8/93):
The ALJ awarded Part B benefits for a computer and supplies to allow a 70 year old man who had a stroke to communicate orally. The ALJ determined that the computer met Medicare's definition of prosthetic device, as it "has essentially replaced ... the malfunctioning part of his body (brain) that caused significant communication limitations."
Matter of Blanche B. (N.Y. 5/95):
The ALJ awarded Part B benefits for a Real Voice. The ALJ determined that the device met Medicare's DME definition. The ALJ also determined that NCD 60-9 was not binding on him and did not preclude the award of funding.
Matter of Richard A. (Idaho 5/97):
The ALJ awarded Part B benefits to a 69 year old man who had a stroke. The ALJ awarded a Canon Communicator, finding that the device met the definitions of DME and prosthetic devices.
Matter of Celia C. (N.Y. 9/98):
The ALJ awarded Part B benefits to a 79 year old woman for a Lightwriter. The ALJ concluded that the device was "reasonable and necessary" to overcome the person's inability to speak due to ALS.
[All four of these decisions are available through either United Cerebral Palsy Associations (800-872-5827) or the National Assistive Technology Advocacy Project (716-847-0650).]
THE MEDICARE APPROVAL PROCESS FOR AAC DEVICES
No Medicare Prior Approval Process
Unlike Medicaid, the traditional fee-for-service Medicare program has no prior approval process. Medicare's application process starts when an individual takes delivery of the item. Thereafter, the vendor submits a claim for payment to the private insurance carrier responsible for making Medicare decisions. For Part B claims, the carrier is known as the DME Regional Carrier (DMERC).
If an individual is enrolled in a Medicare managed care plan, prior approval is available. A prior approval request is submitted directly to the HMO. (A separate booklet, which describes the HMO process is also available. See AAdditional Resources Available," page 14.)
Purchase or Rental of the AAC Device
Must Precede Filing of the Claim
There are several potential ways to do this:
1. Private payment: An individual can pay for the AAC device, in cash or by credit card, and then seek Medicare approval and reimbursement.
2. Vendor delivery without payment: With fairly standard items of DME, a vendor will Aaccept assignment," meaning the vendor gets paid only if the requested item is later approved. However, at present no AAC vendor will accept assignment for an AAC device.
3. Medicaid, other third-party payment: For individuals eligible for Medicaid and Medicare, Medicaid may be more likely to approve payment if an advocate agrees to pursue the Medicare appeal. If Medicaid pays for the device and Medicare later approves funding, with or without an appeal, Medicaid will be reimbursed up to 80 percent of the cost of the device. Other potential third party payment sources include private insurance companies and state vocational rehabilitation agencies.
4. Charitable funding: Many charities have special accounts set up to help persons in need. A charity may be more likely to pay for an AAC device if the person agrees to pursue Medicare funding and an appeal in the event that funding is denied. Under an agreement with the charity, the charity can be reimbursed the full amount that is paid out by Medicare.
Taking delivery, as a result of purchase, rental or vendor acceptance of assignment, is required by the Medicare fee-for-service program before a funding claim, for reimbursement of those costs, can be submitted. The remainder of this booklet assumes that the Medicare beneficiary is able to take delivery of the AAC device.
MEDICARE AAC DEVICE CLAIMS: REQUIRED DOCUMENTATION
The initial Medicare claim for an AAC device will consist of 3 documents, described below. The claim will be submitted by the AAC device vendor.
1. AAC Evaluation and Funding Justification -- Prepared by an SLP
This booklet contains model speech-language pathologist (SLP) instructions (see pages 15 - 19, below). It identifies the functional areas that must be part of the SLP evaluation and the related topics the SLP must address in his or her funding justification (report and recommendation to the treating doctor).
2. Prescription and Certificate of Medical Necessity -- Prepared by the Beneficiary's Treating Doctor
The SLP's funding justification must be submitted to the beneficiary's treating doctor. The doctor must then write a prescription letter, also called a Certificate of Medical Necessity. This is a written statement by the doctor why the AAC device is needed. There is no specific format required for this letter, but it should identify the Medicare beneficiary's expressive communication diagnosis, and state that the AAC device being recommended is being prescribed as treatment for that diagnosis.
3. Proof of Purchase or Rental of the AAC Device
Medicare is a cost reimbursement program which requires the beneficiary to acquire the AAC device first, before submitting the claim to Medicare. For AAC devices, Medicare beneficiaries must first buy or rent the AAC device before a Medicare claim can be submitted. [Note: For Medicare beneficiaries who are enrolled in a managed care plan through an HMO, a prior approval request to fund the AAC device can be submitted to the HMO.]
These documents will provide the information necessary to establish the recommended and prescribed AAC device meets the key Medicare criteria for funding approval, i.e., that the AAC device is "reasonable and necessary" for treatment of the beneficiary's expressive communication disability.
Where Should the Initial Claim Information be Sent?
Initial Medicare AAC device claims will be submitted by the AAC device vendor to one of four insurance companies who contract with Medicare to review all DME and prosthetic and orthotic device claims. These insurance companies are known as "durable medical equipment regional carriers," or DMERCs. Each DMERC is responsible for a group of states. [Contact information for the DMERCs and the regions which they cover is listed on page 6.]
MEDICARE DURABLE MEDICAL EQUIPMENT REGIONAL CARRIERS
(DMERCs)
DMERC States Covered
DMERC Region A Connecticut, Delaware, Maine,
United Healthcare Massachusetts, New Hampshire, New Jersey,
P.O. Box 6800 New York, Pennsylvania, Rhode Island,
Wilkes-Barre, PA 18773-6800 Vermont
Telephone: 1-800-842-2052
Fax: 717-735-9402
DMERC Region B District of Columbia, Illinois, Indiana,
AdminiStar Federal, Inc. Maryland, Michigan, Minnesota, Ohio,
P.O. Box 7027 Virginia, West Virginia, Wisconsin
Indianapolis, IN 46207-7027
Telephone: 1-800-270-2313
DMERC Region C Alabama, Arkansas, Colorado, Florida,
Palmetto Government Benefits Administrators Georgia, Kentucky, Louisiana, Mississippi,
Medicare DMERC Operations New Mexico, North Carolina, Oklahoma,
P.O. Box 100141 Puerto Rico, South Carolina, Tennessee,
Columbia, S.C. 29202 Texas, Virgin Islands
Telephone: 1-803-691-4300
DMERC Region D Alaska, American Samoa, Arizona,
CIGNA California, Guam, Hawaii, Idaho, Iowa,
Medicare Region D DMERC Kansas, Mariana Islands, Missouri,
P.O. Box 690 Montana, Nebraska, Nevada, North Dakota,
Nashville, TN 37202 Oregon, South Dakota, Utah, Washington,
Wyoming
Telephone: 1-800-899-7095
MEDICARE AAC DEVICE DECISION MAKING AND APPEALS PROCESS
A Medicare AAC device claim can travel through six decision making and appeals levels.
Decision 1 Decision 2 Decision 3 Decision 4 Decision 5 Decision 6
DMERC DMERC DMERC ALJ Hearing Departmental Judicial Review
Initial Reconsideration Carrier Appeal
Decision Hearing Board
Expect a "no" Expect a "no" Expect a "no" Expect a "yes"
The goal is to get to Decision 4 of this process. This is the first point where a favorable final decision can be issued. (A favorable decision cannot be issued at Decisions 1, 2 or 3, but claims must pass them anyway.)
Step 1: Initial Decision
The initial decision is made by DMERC staff, who will review the information submitted by the AAC device vendor. This is an on-paper review, and most likely it will be made without additional communication with the beneficiary, treating doctor or SLP, and without in-person appearances by the beneficiary before, or evaluations of the beneficiary by the DMERC staff.
An initial decision on an AAC device claim must be made within 60 calendar days after the claim is received. [42 CFR 405.802 as amended, May 12, 1997]. If no decision is issued within 60 days, the beneficiary should immediately request a carrier hearing [Step 3], skipping reconsideration [Step 2]. [42 CFR 405.801(a), as amended May 12, 1997]
Can I win at the initial decision making level?
No. Although Medicare will provide reimbursement for AAC devices, it will not approve AAC device claims at the initial decision making level or at either of the two appeals levels administered by the DMERCs. A "no" is required: Medicare has guidance called "National Coverage Decisions," one of which applies to AAC devices and the Medicare "durable medical equipment benefit." This guidance calls AAC devices "convenience items" (see page 3, above). It is binding on the DMERCs and compels a "no" response to all AAC device claims.
Despite the mandatory "no," there is no way to avoid this level of review.
Because an unfavorable DMERC decision is absolutely certain, the goal of every Medicare beneficiary seeking an AAC device is to get past the three DMERC controlled decision making levels as quickly as possible. To support this goal, it is recommended that the beneficiary and/or SLP obtain the specific date the AAC device vendor sent in the claim, and to keep close watch over the time period allowed for decision making. As soon as a decision is received, or if no decision is made on the funding request by the 60th day after it is submitted, the beneficiary should file an appeal.
Step 2: Reconsideration
The initial decision will be issued in writing and will be mailed to the beneficiary and to the AAC device vendor. The decision will state the claim has been denied and identify a reason, e.g., AAC devices are not covered by Medicare. As explained above, this result is required. It should be expected and ignored.
The decision also will state there is a right to appeal the initial decision. The filing of an appeal is called requesting reconsideration or review. The request for reconsideration must be filed by the Medicare beneficiary or by some other person who is acting on their behalf. Requests for reconsideration or review must be filed no later than six months after the initial decision is received. However, this step should be taken immediately: there is no advantage to delay. The beneficiary also must follow the instructions for requesting reconsideration stated in the DMERC letter. It is recommended that correspondence with the DMERCs be done by "certified mail, return-receipt requested."
How is the Reconsideration Conducted?
How Long Will Reconsideration Take to Decide?
Reconsideration will be decided on the basis of the documentation in the initial claim. Absent a major change in the beneficiary's condition, there is no need to submit additional information at this step of the process.
The reconsideration decision will be issued within 45 days of the filing of this appeal [Region A; Region C Supplier Manual]. If no decision is issued within 45 days, the beneficiary should immediately request a carrier hearing [Step 3].
Can I Win at this Level?
No. As with the initial decision, the reconsideration decision is controlled by the National Coverage Decision that excludes AAC devices from coverage.
A written reconsideration decision will be issued and will be mailed to the beneficiary. The decision will state the reconsideration has been denied and state a reason, e.g., AAC devices are not covered by Medicare. As noted above, this result is required. It should be expected and ignored.
Step 3: Carrier Hearing
Reconsideration decisions also will state there is a right to further appeal. The second level of appeal is called a "carrier hearing." (A carrier hearing also is the next step if an appeal is filed because the initial decision is not issued in 60 days.) Carrier hearing requests must be filed no later than six months after the initial decision is received. In addition, the Medicare reimbursement being sought must be $100 or more. This appeal should be filed immediately: there is no advantage to delay. As long as the DMERC issues the decision, the National Coverage Decision objecting to AAC device coverage will be binding. As a result, the beneficiary's interests are to have all these decisions issued as quickly as possible. The beneficiary also must follow the instructions for requesting a carrier hearing stated in the DMERC letter. It is recommended that correspondence with the DMERCs be done by "certified mail, return-receipt requested."
How is the Carrier Hearing Conducted?
How Long will the Carrier Hearing take to decide?
The carrier hearing is the 3rd level of DMERC decision making and the second level of Medicare appeal. It is conducted by yet another DMERC staff member, one not involved in either of the other two decisions. The carrier hearing can be conducted on the record (by review of the documentation), by telephone, or as an in-person hearing. An on the record hearing is recommended because it may permit the decision to be issued more quickly. Because the decision still is controlled by the National Coverage Decision objecting to AAC device coverage, there is no need to bother accommodating the schedules of the beneficiary, witnesses, advocates, or hearing officer.
Carrier hearing decisions must be issued "as soon as practicable." [42 CFR 405.834]. The beneficiary should file an ALJ hearing request if the carrier hearing decision is not issued within 60 days of the date the carrier hearing was requested. In no case should more than 120 days pass without a decision after the carrier hearing request was filed.
Can I Win at the Carrier Hearing?
No. Carrier hearings are conducted by DMERC staff. As a result, the National Coverage Decision objecting to AAC device coverage will determine the outcome. As noted earlier, the goal is to get past the DMERC. Carrier hearings are the last place the DMERC has decision making responsibility, and the last place the National Coverage Decision will have an outcome controlling effect.
Step 4: Administrative Law Judge Hearing
The carrier hearing decision will be issued in writing and will be mailed to the beneficiary. The decision will state the appeal has been denied and state a reason, e.g., AAC devices are not covered by Medicare. As noted throughout this booklet, this result is required. And, as before, it should be expected and ignored.
The decision also will state there is a right to further appeal. The next appeal level is the administrative law judge (ALJ) hearing. This appeal should be filed immediately: this is the step the beneficiary has been waiting to reach. It is the first point in the Medicare decision making process for AAC device claims where the National Coverage Decision objecting to AAC device coverage does not apply or control the outcome of the decision. Most importantly: to date, every Medicare AAC device appeal that has reached the ALJ hearing stage has yielded a favorable decision!
Written requests for ALJ hearings must be filed no later than 60 days after the carrier hearing decision is received. In addition, the Medicare reimbursement being sought must be $500 or more. The beneficiary may request an ALJ hearing by writing to the address stated in the carrier hearing decision. Requests for ALJ hearings also can be filed with the Social Security Administration office nearest the beneficiary's home. It is recommended that correspondence related to ALJ hearings be done by "certified mail, return-receipt requested."
How is the ALJ Hearing Conducted?
How Long will the ALJ Hearing take to decide?
The ALJ hearing is the 4th level of Medicare decision making and the third level of appeal. It is conducted by an ALJ who is not associated with a DMERC. Most importantly, the ALJ is not required to follow the National Coverage Decision objecting to AAC device coverage. Instead, the ALJ will decide whether an AAC device is an item of durable medical equipment or a prosthetic device, as those terms are defined by the Medicare Act and regulations. The ALJ also will decide whether the AAC device being sought is "reasonable and necessary" for treatment of the beneficiary's expressive communication disability.
The ALJ hearing can be on the record (an on-paper review) or it can be an in-person proceeding. The beneficiary, family members, treating doctor and/or SLP can all describe directly to the ALJ, the characteristics and impacts of the expressive communication disability; the treatments considered; and why AAC intervention in general and the specific device being recommended and prescribed is the most appropriate form of treatment. Additional information can be submitted, both through documents and oral statements at the hearing.
The likelihood of a favorable ALJ decision is greatly enhanced if the beneficiary has an attorney or other advocate. It is recommended that every beneficiary pursuing an ALJ hearing have an advocate or attorney. Advocacy resources are listed on page 14.
It is not possible to estimate precisely when an ALJ hearing will be conducted or when the ALJ decision will be issued. A fair estimate is that the hearing will be held six to nine months after the request is filed, and the decision will be issued two to three months later.
Can I Win at the ALJ Hearing?
YES! To date, the ALJ hearing has been the place where all Medicare AAC device appeals have stopped: all have received favorable decisions. In the cases decided to date, ALJs either ignored, or expressly rejected the applicability of the National Coverage Decision that required the DMERCs to issue unfavorable decisions. Because beneficiaries, advocates and witnesses were able to show AAC devices fit the Medicare definitions of durable medical equipment and prosthetic devices, and clearly are "reasonable and necessary" forms of treatment for expressive communication disabilities, their appeals were approved.
Because the ALJ hearing is the most important step in the Medicare decision making process, two types of assistance are available: first, advocates can contact Lewis Golinker, Esq. or the National Assistive Technology Advocacy Project to discuss questions about hearing procedures and strategy; and second, supportive documents have been written to increase the likelihood of a favorable decision. These include: (i) a model memorandum of law that can be submitted to the ALJ by an advocate or attorney; (ii) a model set of proposed findings of fact and conclusions of law to aid the ALJ in writing the decision. These documents are too long to include in this booklet: information about how they can be obtained is stated on page 14. Information about contacting Lewis Golinker or the National Assistive Technology Advocacy Project is printed on the Title Page of this booklet.
Although there can be no guarantee every ALJ hearing will yield a favorable decision, by using the available supportive materials, a favorable decision is a reasonable expectation.
Step 5: Departmental Appeal Board
Despite the great expectations associated with ALJ hearings, some decisions will not approve AAC device funding. If this occurs, the beneficiary still has two additional appeal opportunities. Of these two remaining appeal opportunities, Step 6: judicial review, is the more important. Nonetheless, Medicare appeals must be pursued in order, so review by the Departmental Appeal Board must be requested first.
Requests for Departmental Appeal Board reviews must be filed no later than 60 days after the ALJ decision is received. As with the ALJ hearing, the Medicare reimbursement in dispute must be $500 or greater. This appeal should be filed immediately: there is no advantage to delay.
How is the Departmental Appeal Board Review Conducted?
How long will the Departmental Appeal Board Review take to Decide?
The Departmental Appeal Board is conducted by reviewing the documentation that comprises the claim and all the documents (exhibits) and statements made at the ALJ hearing. In almost all cases, the advocate or attorney will submit a memorandum of law explaining why the ALJ decision is incorrect. This will have to be done on a case-by-case basis. Unless some significant new fact or circumstance arises, in general, there is no opportunity to submit new information at this level of appeal.
It is not possible to estimate precisely when the Departmental Appeal Board will issue its decision. A fair estimate is that the decision will be issued six to nine months after the request is filed.
Can I Win at the Departmental Appeal Board?
Because each appeal will be case-specific, and because no AAC device claim has ever been rejected by an ALJ, it is not possible to predict whether the Departmental Appeal Board decision will be favorable or unfavorable. In general, however, beneficiaries should not expect these decisions to be favorable, and beneficiaries must pursue the final appeal option, judicial review.
Step 6: Judicial Review
The final appeal available to Medicare beneficiaries seeking AAC device funding is an appeal to the federal courts. This is a step that technically can be, but as a practical matter never should be pursued without an attorney.
Beneficiaries should not assume their AAC device claims are weak solely because they face the prospect of a court appeal. Medicare claims for AAC devices are very new to Medicare and the existing National Coverage Decision is profoundly flawed. In addition, Medicare has not even attempted to develop new AAC device coverage and reimbursement policies based on current professional knowledge, practice or standards. All of these factors -- which are totally independent of the quality of the beneficiary's claim -- may affect the outcome of the claim and make it necessary to seek court review.
Requests for judicial review must be filed no later than 60 days after the Departmental Appeal Board decision is issued. In addition, the Medicare reimbursement being sought must be $1,000 or greater.
Because no AAC device claim ever has reached the judicial review level and because any decision by a court may have broad implications for other beneficiaries, it is recommended that the beneficiary and/or the beneficiary's attorney seek out and work closely with the national technical assistance providers for Medicare AAC device claims. They are identified on page 14.
SUMMARY TABLE
TIMELINES AND MONETARY THRESHOLDS FOR
MEDICARE DECISION MAKING & APPEALS PROCESS
FOR AAC DEVICES (NON-HMO PARTICIPANTS)
Decision Making Time Limit Time Limit Monetary Threshold
Level & Decision for Request for Decision in Dispute
Maker
Initial Determination --- 60 days ---
[DMERC]
Reconsideration 6 months 45 days ---
[DMERC] after Initial
Determination
Carrier Hearing 6 months after 60-120 days $100 or more
[DMERC] Reconsideration
decision
ALJ Hearing 60 days after no time limit, $500 or more
[Administrative Law Carrier Hearing expect about
Judge] decision 2-3 months
Departmental 60 days after no time limit, $500 or more
Appeal Board ALJ decision expect about
[Departmental 6-9 months or
Appeal Board] longer
Judicial Review 60 days after none $1,000 or more
[Federal Court Departmental
Judge] Appeal Board
decision
ADDITIONAL INFORMATION AND ASSISTANCE
Options for Funding AAC Devices in Your State
Always consider the following sources: Medicaid, special education programs (for children age 21 or younger), state vocational rehabilitation agencies, private insurance contracts, programs operated by state, county or local government and charities.
Many states have a low-interest loan program for funding disability-related equipment. (This information should be available through your state "Tech Act Project." Contact information for Tech Act Projects is available through RESNA: 703-524-6686, www.resna.org.)
Advocates & Attorneys for Medicare AAC Device Claims
Each state will have a Protection and Advocacy program and a Legal Services or Legal Aid program. If you cannot find contact information for these agencies, call the National Assistive Technology Advocacy Project at 716-847-0650.
National Technical Assistance Providers
Lewis Golinker, Esq.
Assistive Technology Law Center
Suite 507, 202 East State Street
Ithaca, New York 14850
(v) 607-277-7286; (fax) 607-277-5239
(email) LGolinker@aol.com
National Assistive Technology Advocacy Project, Neighborhood Legal Services, Inc.
295 Main Street, Room 495
Buffalo, New York 14203
(v) 716-847-0650; (fax) 847-0227
(tdd) 847-1322; (email) atproject@nls.org
Additional Resources Available
The following are available through the United Cerebral Palsy Associations (see title page), the National Assistive Technology Advocacy Project or Lewis Golinker's office.
L. Golinker, Medicare Funding for AAC Devices,
UCPA Tech Express, No. 97-9 (Early Spring, 1997)
Assistive Technology Funding & Systems Change Project, et al.,
Medicare AAC Device Decision Making and Appeals Process for HMO Participants, 1999
Medicare Decisions Approving AAC Devices
Model Memorandum of Law in Support of Medicare Coverage and Reimbursement for AAC Devices
Model Proposed Findings of Fact & Conclusions of Law
SLP AAC ASSESSMENT AND ASSESSMENT REPORT INSTRUCTIONS
A Speech-Language Pathologist (SLP) must complete an AAC assessment and prepare a complete report for every Medicare funding request for an AAC device. The SLP report, along with the treating doctor's Certificate of Medical Necessity, and information about the device's purchase, supplied by the AAC device vendor, are the three documents which comprise a basic Medicare funding claim.
AAC Assessment:
There are no "official" Medicare AAC assessment criteria. The following list of 12 assessment factors is provided as a guide for SLPs to conduct a complete assessment and prepare a complete report.
1. SLP Information: Describe the SLP's education, licensure and experience as an SLP, including experience, training and expertise related to AAC intervention. A copy of the SLP's curriculum vitae can be attached to the Assessment Report.
2. Beneficiary Information: Provide identifying information, including:
a. The date of the assessment
b. Medical diagnosis
c. Identification and description of the beneficiary's communication impairment diagnosis (e.g., dysarthria, apraxia, aphasia, anarthria). Describe how the recommended AAC device is "necessary," i.e., how the device "is expected to make a meaningful contribution to the treatment of the beneficiary's communication impairment." It will be very helpful to provide references from the professional literature that show AAC devices constitute treatment for the beneficiary's specific communication impairment diagnosis. SLPs needing assistance identifying such references can contact the Assistive Technology Law Center [lgolinker"aol.com] or the USSAAC national office [ussaac"northshore.net].
d. Describe the adverse impacts of the communication impairment on all communication settings: personal, social and familial. Stated most simply, how will the AAC device address the practical adverse impacts caused by the inability to speak? What benefits will it convey?
Emphasis should be given here to describing interactions that have been adversely affected by the communication impairment. These effects will be severe for all persons needing AAC devices, but they are particularly pronounced for persons with acquired communication impairments. The effects of acquired communication impairments have been described as "not a loss of life, but a loss of access to life." It is essential the SLP report describe this loss in detail. (Please note: Medicare does not focus solely on communication with health care providers or about health issues.) For example, the loss can be described in terms of:
personal issues: mood personality change
changes in activities: activities that have been reduced in frequency, level of competence, level of enjoyment or sharing with others (e.g., activities with friends), or activities completely abandoned
changes in roles among family or household members: shopping, running the household, caring for a spouse or other family members, being left alone, making social appointments, communication with children, siblings, other family members
In addition, compensatory techniques should be discussed, particularly when writing is not a functional alternative.
3. Sensory Status and Receptive Language: Describe visual, hearing, tactile and receptive communication impairments or disabilities and their impact on the beneficiary's expressive communication.
4. Postural, Mobility & Motor Status: Describe motor status, optimal positioning, access methods and mounting options for the AAC device. Also consider access methods and options, if any, for integration of mobility with the AAC device.
5. Current Speech, Language & Expressive Communication Status: Describe current communication abilities, behaviors and skills, and the limitations that interfere with meaningful participation in current and projected daily activities.
6. Communication Needs Inventory: Describe:
a. Current communication needs;
b. Projected communication needs within the next 2 years;
c. Communication partners and tasks, including any limitations in partner's communication abilities, to the extent they impact AAC device selection and features; and
d. Communication environments and constraints which affect AAC device selection and/or features (e.g., verbal and/or visual output and/or feedback; distance communication needs).
7. Any prior treatment for communication impairments: Describe any prior Medicare covered SLP treatment and explain why the person now has needs that only an AAC device can address.
8. Components of AAC device being recommended: Identify the requested AAC device including all required components, accessories, peripheral devices, supplies, and the device vendor. Also describe:
a. Vocabulary requirements
b. Representational system(s)
c. Display organization and features
d. Rate enhancement techniques
e. Message characteristics, speech synthesis, printed output, display characteristics, feedback, auditory and visual output
f. Access techniques and strategies
g. Portability and durability issues, if any
h. Cost (of device and all accessories also being requested)
i. Any trial use period which demonstrated that the beneficiary is able and willing to use the recommended device effectively
9. Identification of Other AAC Devices Considered for Beneficiary: Identify the characteristics and features of alternate AAC devices considered, and describe why they were not recommended.
10. AAC Device Recommendation: Explain why the recommended AAC device (including accessories being requested) is better able to treat the beneficiary's communication impairment (i.e., overcome or ameliorate the communication limitations that preclude or interfere with the beneficiary's meaningful participation in current and projected daily activities), as compared to the other AAC devices considered.
Be sure to address the Medicare standards of "reasonableness." Reasonableness is established by showing that:
a. There is no less costly alternative way to achieve the same outcome (i.e., communication opportunities; regained ability to participate in activities described above as "losses;" etc.);
b. The recommended device does not duplicate a device or other means of communication currently available to the beneficiary; and
c. The "therapeutic benefits" of the recommended device are not "clearly disproportionate" to the cost of the device. (Note: To address this point, describe all the benefits the device will provide, including the degree of functional improvement to the beneficiary's ability to communicate as well as the benefits to the person arising from the ability to communicate (personal, familial, economic, social, etc.)
11. Treatment Plan: Medicare requires that SLPs prepare a plan of treatment. It must include the expected duration of need for the recommended device and a statement of the "functional communication goals" that are reasonably achievable if the recommended AAC device is provided. To Medicare, "functional goals" may be a "small, but meaningful change that enables the beneficiary to function more independently in a reasonable amount of time." Functional goals represent "the level of communicative independence the patient is expected to achieve outside the therapeutic environment."
Medicare SLP Services Guidance [Medicare Hosp. Manual, ' 446] provides examples of various functional goals representing levels of communicative ability. The SLP can describe the functional goals for the AAC device user by selecting from among the following examples, or by describing how the goals set for the beneficiary are comparable to those listed below:
communicate basic physical needs and emotional status;
communicate self care needs;
engage in social communicative interaction with immediate family members;
carry out communicative interactions in the community.
The Medicare SLP services guidance also provides other examples of functional goals:
For some patients, it [the functional goal] may be the ability to give a consistent "yes" or "no" response; for others, it may be the ability to demonstrate a competency in naming objects using auditory/verbal cues. Others may receptively and expressively use a basic spoken vocabulary and/or short phrases; and still others may regain conversational language skills.
In addition, it is highly recommended that the SLP assert the following five points in the treatment plan:
a. Medicare covers SLP services;
b. Medicare SLP services coverage is tied to identification of reasonably achievable functional goals;
c. The functional goals stated in the SLP services guidance are the same as those SLPs seek to achieve when providing AAC intervention;
d. The beneficiary is capable of achieving the specific functional goals identified in the Medicare SLP coverage guidance; and
e. The only form of SLP intervention that will allow the beneficiary to meet that goal is the AAC device being recommended.
12. Conclusion
The SLP should conclude the report by stating:
the recommended AAC device represents my best professional judgment regarding the appropriate type and degree of SLP treatment services required to address the nature and severity of this beneficiary's communication impairment diagnosis, and achieve the functional goals stated in the treatment plan. The AAC device recommended here should be considered by Medicare for funding under both the durable medical equipment and prosthetic device benefit categories.
How Will the Assessment Report be Used?
The assessment report must be sent to the Medicare beneficiary's treating doctor. The AAC device recommendation stated in the report will serve as the basis for the doctor's prescription (certificate of medical necessity).
The report, plus the prescription will be sent to the vendor for purchase or rental of the AAC device, and the vendor will then send these documents to one of the DMERCs for decision.
For additional information: contact Lewis Golinker, Esq., Assistive Technology Law Center, Suite 507, 202 East State Street, Ithaca, New York 14850; 607-277-7286(v); 607-277-5239(fax); lgolinker@aol.com (e-mail).
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