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
 

INTRODUCTION

THE MEDICARE PROGRAM: AN OVERVIEW

MANAGED CARE OPTIONS: TRADITIONAL MANAGED CARE
        AND THE NEW, MEDICARE+CHOICE PLANS

MEDICARE AND AAC DEVICE FUNDING: CURRENT
        GUIDANCE IN LAW, POLICY, HEARING DECISIONS
        Hearing Decisions Have Awarded Funding

THE MEDICARE APPROVAL PROCESS FOR AAC DEVICES:
        EASIER TO NEGOTIATE UNDER MANAGED CARE
        All Managed Care Plans, Including Medicare+Choice Plans and
                Medicare HMOs, Will Follow a Prior Approval Model

MEDICARE AAC DEVICE CLAIMS: REQUIRED DOCUMENTATION

MEDICARE AAC DEVICE DECISION MAKING AND APPEALS PROCESS
Step 1: Initial Decision
Step 2: Reconsideration
Step 3: Administrative Law Judge Hearing
Step 4: Departmental Appeal Board
Step 5: Judicial Review

SUMMARY: MEDICARE DECISION MAKING & APPEALS PROCESS
        FOR AAC DEVICES (HMO AND OTHER M+C PLAN PARTICIPANTS
        GOVERNED BY 42 C.F.R. PART 422)

SUMMARY: MEDICARE DECISION MAKING & APPEALS PROCESS
        FOR AAC DEVICES (MANAGED CARE ORGANIZATIONS
        GOVERNED BY 42 C.F.R. PART 417)

ADDITIONAL INFORMATION AND ASSISTANCE
        Advocates & Attorneys for Medicare AAC Device Claims
        National Technical Assistance Providers
        Additional Resources Available
        Options for Funding AAC Devices in Your State

SLP AAC ASSESSMENT AND ASSESSMENT REPORT INSTRUCTIONS
        AAC Assessment
        How Will the Assessment Report be Used?
        For additional information
 

Medicare will provide payment/reimbursement for the cost of purchase or rental for augmentative and alternative communication 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 serves 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) that says AAC devices are convenience items and are not covered by Medicare. Despite the existence of the NCD, experience tells us that Medicare will provide payment or 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," "fee-for-service" program, also known as "original Medicare." For them, reimbursement will come from the federal government. Others are enrolled in one of several managed care options, including a traditional managed care plan through a health maintenance organization (HMO) or through a growing list of Medicare+Choice (M+C) plans. The HMO is also the most common M+C option. Their AAC device payment will come from the HMO or other entity which oversees the managed care or M+C plan.

A booklet published in April 1999 described the traditional, fee-for-service program. This booklet describes the managed care program. It provides answers to the most common questions a Medicare beneficiary, family member, service provider or advocate may have regarding the Medicare decision making and appeals steps that apply to AAC device payment claims:

• what documentation or proof has to be submitted?
• 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.
 

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 a 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 2000). State Medicaid programs may pay the Part B premiums for persons with low income. This usually is done through the Qualified Medicare Beneficiaries (QMB) or Specified Low-Income Medicare Beneficiary (SLMB) programs.

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. ALJ hearing decisions have cited this category as available for funding AAC devices.

Medicare and You 2000, a consumer handbook published by the federal Health Care Financing Administration (HCFA), describes the range of M+C options and classifies them all under the category of managed care. Since HCFA uses the term managed care to classify all of the M+C options, we will also do so in this booklet.

For several years now, Medicare managed care programs have been operated through health maintenance organizations (HMOs). In many parts of the country, they have offered an alternative to the traditional Medicare program. The Balanced Budget Act of 1997 expanded the number of alternatives to traditional Medicare through what is know as Medicare Part C, the Medicare+Choice (M+C) program. Now, every individual entitled to Medicare Part A and enrolled under Part B, except for individuals with end-stage renal disease, may elect to receive benefits through either the existing Medicare fee-for-service program or a managed care plan, including one of the new M+C plans. This booklet will not attempt to describe the many new M+C plan options available to Medicare beneficiaries.

All managed care and M+C organizations are required to cover the full range of Medicare benefits that beneficiaries would have been able to receive under the original, fee-for-service program. This means that any of the successful arguments for funding of AAC devices, through traditional Medicare, will also apply to the range of managed care or M+C plans. Historically, the attraction of some managed care plans was that they offered coverage for items, such as prescription drugs, not covered by traditional Medicare. This will likely be true for the new range of M+C options. Remember, a M+C plan can offer more, but not less, than is available under traditional Medicare.

This booklet will not cover the many requirements governing how one enrolls in a M+C plan. Nor will it discuss the myriad of new federal requirements governing the range of M+C options. [See 42 C.F.R. Part 422.] An important thing to remember, however, is that a Medicare beneficiary who is unhappy with the M+C plan they selected can, subject to some limitations, return to the original Medicare program or select a different M+C plan.

Note: The new M+C plans, including most Medicare HMOs, are regulated by 42 C.F.R. Part 422. However, some Medicare HMOs, generally "cost contract plans," continue to be regulated by 42 C.F.R. Part 417. The time frames for decision making and appeals are slightly different under these two sets of regulations. To avoid confusion, the text and tables in this booklet state the time frames applicable to the majority of managed care plans, as set forth in the Part 422 regulations. Where differences exist, the time frames for decision making and appeals will be stated in footnotes, as set forth in the Part 417 regulations.
 

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 as not eligible for DME coverage, claiming they are convenience items and not primarily medical in nature. This policy is binding on HMO and other M+C plan decision makers. It will also be binding on other independent reviewers at levels of appeal prior to the administrative law judge (ALJ) hearing. It is not binding on ALJs, the Departmental Appeal Board or the federal courts. Although this policy does not address the prosthetic category, our experience is that Medicare decision makers prior to the ALJ level have treated the NCD as a bar to AAC device coverage. One should present the claim to an HMO as eligible for prosthetic device coverage, but expect a denial and the need to appeal.
 

Described below are six 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 for a Canon Communicator to a 69 year old man who had a stroke, finding that the device met the definitions of DME and prosthetic device.

Matter of Celia C. (N.Y. 9/98):

The ALJ awarded Part B benefits to a 79 year old woman for a Lightwriter, finding that the device was DME and "reasonable and necessary" to overcome the person's inability to speak due to ALS.

Matter of Bernadine A. (Wyoming 4/99):

The ALJ awarded Part B benefits for a Macaw for this woman who had a stroke. The ALJ determined that the device met the definitions of DME and prosthetic device, finding that it was "medically reasonable and necessary in order to alleviate the severity of her mental impairments and enable her to more effectively participate in her overall care."

Matter of Donald S. (Idaho 10/99):

The ALJ awarded Part B benefits for a Delta Talker for a 25 year old man with cerebral palsy and severe dysarthria. The ALJ determined that the device met the definitions of DME and prosthetic device. In reaching these conclusions, and finding that the device is "medically reasonable and necessary," the ALJ specifically cited three of the previous ALJ decisions, including Blanche B., Celia C., and Bernadine A.

[All six of these decisions are available through the National Assistive Technology Advocacy Project (716-847-0650).]
 

In our April 1999 booklet, we pointed out that the traditional, fee-for-service Medicare program has no prior approval process. Medicare's application process, for the majority of Medicare recipients enrolled in the traditional program, 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). [For more information about traditional Medicare, we refer you back to our April 1999 booklet.]

If an individual is enrolled in any of the traditional managed care or M+C plans, including a Medicare HMO, prior approval is available. A prior approval request is submitted directly to the HMO or other entity responsible for administering the M+C plan. Under this prior approval system, there is no need to secure payment ahead of time as there is under traditional Medicare. However, under a prior approval procedure, the Medicare beneficiary generally must wait without the AAC device as the claim goes through the Medicare decision making and appeals process.

A Possible Exception: Some M+C plans may permit plan members to purchase an item or service after a request for prior approval has been submitted and denied. By permitting this, the request to the M+C plan changes from one for "prior approval" to one for reimbursement. It also will allow a plan member to begin receiving the benefits of the requested treatment while the appeal is pending. Whether an M+C plan member is able take advantage of this opportunity to obtain an AAC device while an appeal is pending, and thereby convert a prior approval request into one for reimbursement will be based on the language of the M+C or other managed care plan documents.
 

The initial Medicare claim for an AAC device will consist of 2 documents, described below.

1.     AAC Evaluation and Funding Justification -- Prepared by an SLP

This booklet contains model speech-language pathologist (SLP) instructions (see pages 19 - 23). 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 written statement explains 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 prescribed as treatment for that diagnosis.

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. Since Medicare HMOs and other M+C plans will be administered by a wide range of insurance companies or similar entities, it is likely that some M+C plans may require that prior approval requests be submitted on specific forms and that they follow procedures specific to the plan. For this reason, it is important to review benefits booklets or communicate directly with the HMO or other M+C plan to determine the specific procedures that must be followed.

Requesting Expedited Review

The Part 422 regulations, which govern M+C plans, state that the HMO or other M+C organization generally has 14 days to rule on a funding request. However, an expedited decision (i.e., within three days) is required "if the physician indicates that applying the standard time frame for making a determination could seriously jeopardize the life or health of the [beneficiary] or the [beneficiary's] ability to regain maximum function." Since we can expect that AAC device claims will be denied by the HMO, we recommend that, whenever possible, the doctor's supporting letter include a request for an expedited decision using language similar to the quoted language.⁽¹⁾ This will allow the initial claim to be decided quickly. The claim can then move through the reconsideration to the administrative law judge hearing where a favorable decision can be rendered.⁽²⁾

Where Should the Initial Claim Information be Sent?

Initial Medicare AAC device claims should be submitted by the SLP or beneficiary directly to the Medicare HMO or to the entity responsible for administering the M+C plan which serves the individual. If the HMO or other M+C plan requires a specific process for submitting claims, that process must be followed.
 

The procedures outlined in this section will apply to all M+C plans and are governed by the Part 422 regulations. However, since the great majority of managed care recipients are enrolled in Medicare HMOs, the examples will reference the HMO. Where the Part 417 regulations provide different requirements, those are noted in footnotes.

For HMO participants, a Medicare AAC device claim can travel through five decision making and appeal levels.

Decision 1                  Decision 2                           Decision 3                          Decision 4                     Decision 5

HMO                          Reconsideration                  ALJ Hearing                     Departmental                Judicial Review
Initial                                                                                                                 Appeal
Decision                                                                                                             Board

Expect a "no"            Expect a "no"                      Expect a "yes"

The goal is to get to Decision 3. This is the first point where a favorable final decision can be expected. (A favorable decision is very rarely issued at Decisions 1 or 2, but claims must pass them anyway.)

By following the expedited application and appeals procedures, it will be possible to obtain Decisions 1 and 2 and request an administrative law judge hearing within two to three weeks of submitting the original prior approval request. At the initial decision stage, at the reconsideration stage controlled by the HMO, and at the reconsideration stage controlled by the Center for Health Dispute Resolution, expedited decisions are available within three days of submitting a properly-documented request. Thus, even allowing extra time for decisions and appeal requests to go through the mails, a persistent beneficiary or advocate can ensure very quick movement of this claim through the initial decision and reconsideration stages.
 

The initial decision is made by HMO staff, who will review the information submitted to support the claim. 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 HMO staff.

An initial decision on an AAC device claim must be made within 14 calendar days after the claim is received. The HMO or M+C organization may extend the time frame by up to 14 calendar days if the beneficiary requests the extension or if the organization justifies the need for additional information and how the delay is in the interest of the beneficiary. If no decision is issued within the mandated time frame, this failure constitutes an adverse decision and can be appealed. [42 CFR 422.568]

The beneficiary or his/her physician can request an expedited initial decision. This oral or written request is directed to the HMO or M+C organization. If the request is made by the beneficiary, the HMO must provide an expedited determination if it determines that applying the standard time frame could seriously jeopardize the life or health of the beneficiary or his/her "ability to regain maximum function." Again, if the request is supported by a physician, the HMO must provide the expedited determination "if the physician indicates that applying the standard time frame for making a determination could seriously jeopardize the life or health of the [beneficiary] or the [beneficiary's] ability to regain maximum function." Generally, an expedited determination must be made within three days. [42 C.F.R. 422.570-572]⁽³⁾

Can I Win at the Initial Decision Making Level?

Experience tells us the answer will be no in nearly every case. Although Medicare will provide reimbursement for AAC devices, HMOs are not expected to approve AAC device claims at the initial decision making level or at the reconsideration appeal level administered by the HMO. A "no" is expected: As noted above, 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 4, above). It is binding on HMOs and other M+C organizations. It compels the HMO to say "no" to all AAC device claims under the DME category. As noted on page 4, one should present the claim to the HMO as eligible for prosthetic device coverage, but expect a denial and the need to appeal.

Despite the expected "no," there is no way to avoid this level of review.

Because an unfavorable HMO decision is nearly certain, the goal of every Medicare beneficiary seeking an AAC device is to get past the two HMO-controlled decision making levels as quickly as possible. To accomplish this, we recommend that, whenever possible, the doctor's supporting letter include a request for an expedited decision using language similar to the language quoted on pages 6 and 8. This will allow the initial claim to be decided quickly. The claim can then move through the reconsideration to the administrative law judge hearing where a favorable decision can be rendered. To support this goal, it is recommended that the beneficiary and/or SLP 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 14th day after it is submitted (three days for an expedited request), the beneficiary should file an appeal.⁽⁴⁾
 

The initial decision will be issued in writing and will be mailed to the beneficiary. The decision will very likely 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 almost certain. It should be expected, ignored and appealed.

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 60 days from the date of the notice of HMO or other M+C organization determination. 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 HMO letter. Generally, the request for reconsideration can be made by filing the written request with the HMO or with a Social Security Administration (SSA) office. We recommend that the request for reconsideration be filed with the HMO, as the time frame for the HMO to conduct its review begins when it receives the request. It is also recommended that correspondence with the HMO or SSA be sent by "certified mail, return-receipt requested."

How is the HMO's Reconsideration Conducted?
How Long Will the HMO Take to Decide?

In cases involving AAC device claims, all reconsiderations will involve a two-step process. First, the case will be reviewed again within the HMO or other M+C organization. That will very likely result in another denial of coverage. Second, following denial by the HMO, the case will be automatically forwarded to an "independent entity," the Center for Health Dispute Resolution (CHDR), for an additional review. This second step is automatic: the beneficiary does not have to take any action for it to occur. The expected result is also a denial of coverage.

Reconsideration of AAC device claims will be made 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 HMO's reconsideration decision must be made within 30 days. The HMO or M+C organization may extend the time frame by up to 14 calendar days if the beneficiary requests the extension or if the organization justifies the need for additional information and how the delay is in the interest of the beneficiary. If no decision is issued within the mandated time frame, this failure constitutes an adverse decision and can be appealed. [42 CFR 422.590] If the HMO's reconsideration results in an adverse decision, which will be the case in all AAC device claims, the HMO or other M+C organization must prepare a written explanation and send the case file within 24 hours to CHDR for the second step of the reconsideration process.

The beneficiary or his/her physician can request that the HMO make an expedited reconsideration. This oral or written request is directed to the HMO or M+C organization. As with initial decisions, if the request is made by the beneficiary, the HMO must provide an expedited reconsideration determination if it determines that applying the standard time frame could seriously jeopardize the life or health of the beneficiary or his/her "ability to regain maximum function." If the request is supported by a physician, the HMO must provide the expedited reconsideration determination "if the physician indicates that applying the standard time frame for conducting a reconsideration could seriously jeopardize the life or health of the [beneficiary] or the [beneficiary's] ability to regain maximum function." Generally, an expedited reconsideration determination must be made within three days.⁽⁵⁾

Can I Win at the HMO Reconsideration Level?

As with the initial decision, experience tells us the answer will be no in nearly every case. Thus, the beneficiary and SLP should anticipate this decision and be prepared to file the next appeal immediately after it is received. Because an unfavorable HMO reconsideration decision is nearly certain, we recommend that, whenever possible, the doctor's supporting letter include a request for an expedited decision using language similar to the quoted language. This will allow the claim to quickly move through the reconsideration to the administrative law judge hearing where a favorable decision can be rendered.

Reconsideration By the Center for Health Dispute Resolution (CHDR)

The Balanced Budget Act of 1997 mandated that the Health Care Financing Administration (HCFA) contract with an independent, outside entity to review and resolve HMO or other M+C organization reconsiderations that uphold the earlier denial of coverage. HCFA has contracted with CHDR to serve as this outside independent entity.

How is CHDR's Reconsideration Conducted?
How Long will CHDR's Reconsideration Take to Decide?

The CHDR reconsideration will occur automatically following the HMO's adverse reconsideration decision. CHDR's reconsideration consists of a review of the record, i.e., a review of the documents that were submitted to support the initial request for funding of the AAC device.

The regulations governing CHDR's review require that it "must conduct the review as expeditiously as the [beneficiary's] health requires ...." [42 C.F.R. 422.592] The CHDR Medicare+Choice Reconsideration Process Manual is more specific. Section 4.6 of the manual provides that, effective January 1, 1999, CHDR is responsible for completing reconsiderations within the same time frames and standards as apply to HMOs or other M+C organizations. As noted on page 10, this means that CHDR must render its decision within 30 days or within three days in the case of an expedited decision.⁽⁶⁾

CHDR must mail a notice of its reconsidered determination to the beneficiary. The notice must state the reasons for the decision. If the decision is against the beneficiary, as will be the case for nearly all AAC device claims, it must inform him or her of their right to an ALJ hearing if the amount in controversy is $100 or more. The notice must also inform the beneficiary of the procedures to follow to obtain an ALJ hearing.

Can I Win the CHDR Reconsideration?

Here again, experience tells us the answer will be no in nearly every case. The National Coverage Decision excluding AAC devices from coverage is expected to determine the outcome. As noted earlier, the goal is to get past this level of review since the National Coverage Decision will very likely control the decision. In the managed care context, CHDR reconsiderations are the last place the National Coverage Decision will have an outcome controlling effect.

Although CHDR's review is automatic, we recommend sending CHDR a copy of the doctor's request for an expedited reconsideration upon learning of the HMO's adverse reconsideration decision. As already stated, we recommend that, whenever possible, the doctor's request for an expedited decision use language similar to the language we have quoted on page 10, above. This will allow the claim to quickly move through to the administrative law judge hearing where a favorable decision can be rendered.
 

As noted above, CHDR's reconsideration 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, ignored and appealed.

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 excluding to AAC devices from 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 -- including some for Medicare HMO participants -- has yielded a favorable decision!

Written requests for ALJ hearings must be filed no later than 60 days from the date of the notice of reconsideration decision. In addition, the Medicare payment being sought must be $100 or more. The beneficiary may request an ALJ hearing by writing to the address stated in CHDR's 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 third level of Medicare decision making and the second level of appeal. It is conducted by an ALJ who is not associated with an HMO, other M+C organization, or CHDR. Most importantly, the ALJ is not required to follow the National Coverage Decision excluding AAC devices from 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 18.

Unfortunately, there are no time limits for an ALJ to schedule a hearing, or to issue a decision after a hearing. However, beneficiaries and SLPs should explain in their hearing request letter that -- unlike typical Medicare claims -- the beneficiary in this appeal does not yet have access to the requested device and instead is still waiting for access to essential treatment. These remarks should be for the purpose of requesting that the hearing be held as soon as possible. Until a hearing is scheduled, beneficiaries should make regular contacts with the ALJ's office to request information about the status of the appeal. 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 -- including those filed by Medicare HMO participants -- 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 HMOs, M+C organizations, and CHDR 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 brochure: information about how they can be obtained is stated on page 18. 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.
 

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 $100 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 review 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.
 

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. 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.

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.

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 18.
 

Decision Making                 Time Limit                 Time Limit                 Monetary Threshold
Level & Decision                 for Request                for Decision⁽⁸⁾           in Dispute
Maker

Initial Determination                  ---                            14 days                              ---
[HMO, M+C Organization]

Reconsideration                        60 days                     30 days ---
[HMO, M+C Organization]     after Initial
                                               Determination

Reconsideration                        Review is automatic   30 days ---
[Center for Health                    No need to request
Dispute Resolution]                  reconsideration

ALJ Hearing                            60 days after               no time limit,                  $100 or more
[Administrative Law CHDR    decision                      expect about
Judge]                                                                       2-3 months
                                                                                after hearing

Departmental                          60 days after                no time limit,                  $100 or more
Appeal Board                         ALJ decision                expect about
                                                                                6-9 months or
                                                                                longer

Judicial Review                      60 days after                  none                              $1,000 or more
[Federal Court                       Departmental
Judge]                                   Appeal Board
                                            decision
 

Decision Making                  Time Limit                     Time Limit             Monetary Threshold
Level & Decision                  for Request                    for Decision⁽⁹⁾       in Dispute
Maker

Initial Determination                      ---                            60 days                              ---
[Managed Care Organization]

Reconsideration                       60 days                          60 days ---
[Managed Care Org.]              after Initial
                                              Determination

Reconsideration                       Review is automatic       30 days ---
[Center for Health                    No need to request
Dispute Resolution]                  reconsideration

ALJ Hearing                            60 days after                  no time limit,                  $100 or more
[Administrative Law                 CHDR decision            expect about
Judge]                                                                          2-3 months
                                                                                   after hearing

Departmental                           60 days after                  no time limit,                   $100 or more
Appeal Board                          ALJ decision                 expect about
                                                                                  6-9 months or
                                                                                   longer

Judicial Review                        60 days after                  none                              $1,000 or more
[Federal Court                         Departmental
Judge]                                     Appeal Board
                                              decision
 

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 National Assistive Technology Advocacy Project (and its website, www.nls.org) or Lewis Golinker's office.

¤ L. Golinker, Medicare Funding for AAC Devices, UCPA Tech Express, No. 97-9 (Early Spring, 1997)

¤ National Assistive Technology Advocacy Project, et al., Medicare AAC Device Decision Making and Appeals Process for Non-HMO Participants, April 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

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 .)
 

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 are the two 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 severe 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
   

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.

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.

    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.

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 HMO or other M+C organization 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).

1. Although the regulations suggest that the doctor's conclusion on the jeopardy to life or health of the beneficiary is enough to mandate an expedited review, we suggest that the doctor's letter incorporate specific examples of how the delay will create the jeopardy to life or health. For example, the lack of an AAC device may make it impossible for the individual to describe life or health-threatening symptoms to doctors and other care givers; or there may be a history of the individual's inability to use the phone to call outside for health-related assistance. The SLP's funding justification letter may provide a good source for this type of information.

2. If the HMO or other managed care organization is governed by the Part 417 regulations, the HMO has 60 days to make an initial decision or three days to make an expedited decision.

3. The HMO which is subject to Part 417 will have 60 days to make an initial decision and three days to make an expedited decision. Unlike Part 422, there is no mandate in Part 417 for an expedited decision based on a properly worded doctor's letter.

4. Under the Part 422 regulations, a funding request is considered denied if not decided within 14 days. Similarly, under the Part 417 regulations, a funding request is considered denied if not decided within 60 days.

5. Under the Part 417 regulations, a managed care organization has 60 days to issue a reconsideration decision and three days to issue an expedited decision.

6. HCFA has also contracted with CHDR to process reconsiderations under the Part 417 regulations. Under Part 417, CHDR automatically reviews the managed care organization's adverse reconsideration decision. CHDR has 30 days to issue its reconsideration decision and 10 days to issue an expedited decision.

7. Both the Part 422 and the Part 417 regulations have identical requirements governing administrative law judge hearings, Departmental Appeal Board review, and judicial review.

8. The time limit for an expedited decision is reduced to three days at the initial determination level and for reconsideration determinations by an HMO, other M+C organization, or CHDR. This is discussed in the earlier sections of the booklet.

9. The time limit for an expedited decision is reduced to three days at the initial determination level and for reconsideration determinations by the managed care organization. CHDR has 10 days for making an expedited reconsideration decision.