Chapter 11

MEDICARE

1. What is Medicare?

Medicare is a federal health insurance program for persons ages 65 and over and eligible younger persons with disabilities. Medicare has four Parts. Part A helps pay for hospital care and other medical services. Part B helps pay for doctor services and other health care. Parts A and B are original, fee-for-service Medicare. Part C, Medicare Advantage, (MA), covers primarily managed care plans providing Part A, B and usually D services. Part D pays for prescription drugs provided through private prescription drug plans, (PDPs), each with its own list of covered drugs, or through a Medicare Advantage or PPO plan (MA-PDPs).

Medicare Part A is funded by federal payroll taxes paid by workers and employers. Part B is funded by the federal government and monthly premiums paid by Medicare beneficiaries. Part C Medicare Advantage plans are funded by Part A, B and, usually, D plus premiums from the Medicare beneficiary when applicable. Part D is funded by the federal government and monthly premiums. The federal government runs the Medicare program. You can qualify for Medicare regardless of your financial situation.

This chapter focuses on access to durable medical equipment (wheelchair, hospital bed, walker, home oxygen equipment, etc.), prostheses (artificial eye, larynx, leg, etc.) and orthotics (brace, truss, customized seating system etc.) under Part B. For questions and information about the Medicare program, you can telephone these agencies:

· The Medicare Beneficiary Contact Center which is run by the Medicare program, 1-800-MEDICARE or 1-800-633-4227; TTY/TDD 1-877-486-2048.

· Your local California Health Insurance Counseling and Advocacy Program (HICAP) at 1-800-434-0222 to find out how to contact your local HICAP program.

A great deal of information about the Medicare program is available online at www.cms.hhs.gov. In Question 48, the last question in this chapter, we set out some additional resources.

Confused about some of the terms and acronyms or abbreviations used in Medicare and Social Security? Look at the glossary at the end of this chapter.

2. What government agency runs the Medicare program?

The federal Centers for Medicare & Medicaid Services (CMS), formerly known as the Health Care Financing Administration (HCFA), oversee the Medicare program. The state has nothing to do with the administration of the Medicare program except that it pays premiums for Medi-Cal recipients who are also covered by Medicare. CMS contracts with private entities, usually health insurance companies, in different regions of the country to review Medicare claims and process payments. The Medicare program is phasing out the contractors formerly known as “Fiscal Intermediaries” for Part A claims and as “Carriers” for Part B services. The contracting is being restructured with the new entities known as Medicare Administrative Contractors or MACs. Section 1874A of the Social Security Act, 42 U.S.C. § 1395kk-1, added by the Medicare Modernization Act of 2003 (2003 MMA), Section 911 of Pub.L. 108-173.

The Social Security Administration administers Medicare beneficiary eligibility under the program, including collecting premiums from Social Security checks and enrollment in Part A, B and D.

3. What Part B contractors process claims for durable medical equipment (DME), prosthetics and orthotics?

The 2003 MMA led to the restructuring of how Medicare Part B claims for DME prosthetics and orthotics are handled. The country continues to be divided into four regions and California continues to be in Region D. Instead of a single DMERC – Durable Medical Equipment Regional Center – those functions have been divided as follows for Region D which includes California:

· The Medicare Beneficiary Contact Center will handle initial beneficiary questions and will link to the DME MAC when appropriate: 1-800-MEDICARE or 1-800-633-4227; TTY/TDD 1-877-486-2048; www.medicare.gov.

· The Payment Safeguard Contractor is both IntegriGuard as the DME Benefit Integrity Support Center (DME-BISC) and its parent Electronic Data Systems or EDS. The two are responsible for the medical necessity review of DME, educational and other activities to prevent fraud and abuse, and, with Noriguard, the development and updating of Local Coverage Determinations (LCDs): Contact them via the Medicare Beneficiary Contact Center.

· Noridian Administrative Services, LLC, is the MAC DME responsible for the payment of claims that are submitted by providers and beneficiaries. Noridian, with IntegriGuard, is also responsible for the development of LCDs. Noridian also handles Medicare beneficiaries’ requests for a redetermination, the first step in the administrative appeal process.

4. What does Medicare cover?

Part A covers:

· Inpatient hospital care;

· Skilled nursing facility (SNF) care;

· Hospice care; and

· Some home health care.

Part B covers:

· Physicians’ services;

· Outpatient hospital services;

· Rural health clinic services;

· Comprehensive outpatient rehabilitation facility services;

· Physical and occupational therapy;

· Speech pathology services;

· Prosthetic and orthotic devices;

· Durable medical equipment (DME);

· Drugs administered via DME (i.e., via nebulizer) or prosthetic device (i.e., parenteral nutrition), and supplies related to DME (glucose testing strips) or a prosthetic device (colostomy supplies);

· Certain cancer, immunosuppressant, and dialysis related drugs;

· Diagnostic tests; and

· Some health care.

Part D covers:

· Prescription drugs that are not covered under Part A or B;

· Vaccines, blood and blood derivatives, and other biological products; and

· Insulin and supplies related to the administration of insulin.

5. What does Medicare exclude from coverage?

Medicare under Part A and B does not generally cover routine or preventative services with certain exceptions. For example, Medicare does not cover: routine physical examinations except an initial examination; most dental care (except for emergency restorative services or where the jaw or bone supporting the teeth is involved);[1] routine eye examinations, eyeglasses or contact lenses (except when associated with eye disease or injury); hearing aids and related examinations; orthopedic shoes (except when you need them for symptoms of diabetes, or if they are an integral part of leg braces); and routine foot care.

Medicare under Part D excludes vitamins and minerals except prenatal vitamins and fluoride preparations; drugs or agents for anorexia, weight loss or gain, fertility, cosmetic or hair growth, for symptomatic relief of colds or cough, barbituates. Part D also excludes the benzodiazepines class of drugs which includes clonazepam (Klonopin), alprazolam (Xanax), and diazepam (Valium). It does not usually cover drugs that have not been approved by the FDA.

6. What preventative benefits does Medicare cover?

Medicare now covers a limited number of preventative benefits. These include:

· Flu, pneumonia, and hepatitis B vaccines;

· An annual mammogram for women age 40 and older;

· Pap smears every two years (but yearly if you are high-risk or have prior abnormal results);

· Annual prostate cancer screening for men age 50 and older;

· Colorectal cancer screening tests for persons age 50 and older;

· Outpatient diabetes self-management services, blood testing strips, and monitors;

· Bone mass measurement tests;

· Medical nutrition therapy services for persons with diabetes or kidney diseases;

· Routine glaucoma screening for persons at risk for glaucoma;

· Tobacco use counseling for those with a smoking related disease or taking medicine that may be affected by tobacco use; and

· Physical examination if performed within 6 months of initially qualifying for Medicare.

7. How do I get my health care through Medicare?

You have two options for receiving care covered by Part A and B. You can enroll in the original fee-for-service Medicare program (“traditional Medicare”), or you can choose a Medicare health plan if there is one in your area. Medicare health plans, which are usually HMOs but can include PPOs (preferred provider organizations), are called Medicare Advantage plans. (Another Medicare Advantage option is Private Fee for Service, but in 2007 enrollment was suspended in California because of reports of marketing abuses and problems accessing services.) You must be enrolled in Parts A and B to enroll in a Medicare Advantage plan. You cannot enroll in a Medicare Advantage plan if you have end-stage renal disease. But if you are already in a Medicare HMO when you get end-stage renal disease, the Medicare Advantage plan must continue to serve you. If your Medicare Advantage plan leaves the Medicare program and you have end-stage renal disease, you can join another Medicare Advantage plan if one is available.

Regardless of whether you are enrolled in traditional Medicare or a Medicare Advantage plan, you are entitled to receive coverage for the full range of Part A and Part B services. Often, Medicare Advantage plans offer additional benefits. However under Medicare HMO plans you must use your MA plan for all medical care unless you need emergency or urgent care.

Under Part D drugs are provided through private prescription drug plans (PDPs). If you have enrolled in a Medicare Advantage Plan that is a MA-PDP, you usually will get Part D prescription drugs through the Medicare Advantage plan. However, if Part D prescription drugs are not included in your Medicare Advantage plan, you will be unable to get Part D coverage through a separate plan.

8. Which Medicare Part do I need to get assistive technology devices and services?

When Medicare covers assistive technology devices and services, it will generally be under Part B. Medicare refers to assistive technology using the terms “durable medical equipment” (DME), “prostheses,” or “orthotics.”

Theoretically, if you are under institutional care being paid for by Medicare, you can get the technology you need under Part A as part of the Medicare payment for institutional care services. This may include prosthetics, orthotics, durable medical equipment, and other devices also covered under Part B. The criteria for coverage are generally the same.

Since most assistive technology devices and services fall under Part B, this chapter focuses on Part B.

9. How would I know if I am eligible for Medicare?

To be eligible for Medicare, without any premium for Part A hospital insurance, you must qualify under one of the following categories.

A. Age-based eligibility

You must be 65 years of age or older and be eligible for one of the following (even if not yet old enough to receive cash benefits without deductions for earnings):

· Social Security Retirement Benefits under Title II of the Social Security Act; or

· Federal Civil Service Retirement Benefits; or

· The Railroad Retirement System; or

· Enough quarters of Medicare coverage from either employment covered by Social Security or Medicare-qualified government employment, or both. 42 U.S.C. § 1395c; 42 C.F.R. § 406.15. How many quarters of coverage you need will vary depending upon the year you will retire. 42 C.F.R. §§ 406.11, 407.10.

B. Disability-based eligibility

· You are eligible for Medicare if you have received Social Security Disability Insurance or Railroad Disability Benefits for at least 24 months – and for those entitled to retroactive benefits, including up to 12 months prior to the month of application.

· If you are a disabled widow or widower, you can receive credit for months you received “mothers benefits” or early retirement benefits if you were also eligible for widow or widower benefits during that time period. 42 C.F.R. § 406.12(c) (5).

· Effective July 1, 2001, if you have Amyotrophic Lateral Sclerosis (ALS or Lou Gehrig’s Disease), the 24-month waiting period for Medicare does not apply. 42 U.S.C. § 426(h).

· You are eligible for Medicare with at most a two-month waiting period if you have end-stage renal disease (ESRD). Medicare coverage will end 36 months after you have had a successful kidney transplant. You can be eligible based on your own work history, or the work history of a spouse or, if you are a dependent child, the work history of a parent even if the parent or spouse is not receiving or eligible to receive Title II benefits. A dependent child includes those who, on first day of ESRD, were under age 22, or under age 26 if half the support is from parent(s), or disabled since before age 22. 42 C.F.R. § 406.13

10. If I have Medicare based on my disability, what happens if I start working?

Nothing can happen to your Medicare benefits until after your nine-month trial work period, and after that, not until your work is determined to be substantial gainful activity (SGA). If your Social Security cash benefits stop because Social Security says your work is at the SGA level after your trial work period, your Medicare Part A benefits will continue at no cost for at least 77 months after the month in which you receive your last benefit check, and under some circumstances for more months. This is called the Extended Period of Medicare Coverage or EPMC. How long the EPMC lasts depends on when your benefits stopped because of work after your nine-month trial work period. Ask your Social Security office to tell you the month in which your free Part A will stop if you continue working and continue to be under a disability. Once your benefits stop, you will be billed quarterly for the cost of your Part B coverage. If you have other health insurance, you can suspend your Part B and would be eligible to have your Part B reinstated later without penalty when you no longer had other coverage. Your Medicare continues automatically so long as you continue to be medically disabled during this period. 42 C.F.R. § 406.12 (e) (2).

A. What about my Medicare if after my trial work period and after my benefits stopped because they were suspended due to SGA, I went back on benefits during my “extended period of eligibility” or EPE?

Your free Medicare always continues during your re-entitlement to Social Security disability benefits and will continue as long as you receive benefits. The question is what happens to your Medicare if you want to try to work again. The answer is complicated because your Extended Period of Medicare Coverage starts to run when your work is SGA after your trial work period and how long the EPMC runs also depends on whether your SGA occurs prior to or after your 14th month of your EPE and if prior to that, whether you are still performing SGA on your 16th month of your EPE. We recommend that you ask Social Security how long your extended period of Medicare eligibility will last. Remember, as explained below, even if free Part A Medicare ends, you will be able to purchase Part A and continue to pay for Part B and D.

B. What happens to my Medicare at the end of the Extended Period of Medicare Coverage that gives me free Part A benefits?

As a qualified working disabled individual, you can buy into Part A by starting to pay the Part A premiums and continue paying Part B premiums and Part D premiums based on the prescription drug plan you chose. In 2008 the rate for Part A is $423 a month. That amount is reduced to $223 in 2008 if you have 30 or more quarters of work credits, or your spouse or your deceased spouse to whom you were married for at least a year had 30 or more quarter credits, or if you were married for 10 or more years and when divorced your spouse had 30 or more quarter credits. Your initial enrollment period is the 8 months after losing free Medicare. Thereafter you may enroll during open enrollment periods from January through March. If your disability benefits were based on a parent’s work history (DAC or CDB benefits), special rules may apply when you elect to delay enrollment because covered under a group health plan. Check with Social Security.

C. Are there any programs that will help me pay my Medicare Premiums including the Part A premiums after my Extended Period?

Yes. California has a Medi-Cal 250% working disabled program with sliding scale premiums that will pay all the Medicare premiums including Part D. That translates to gross earned income, until March 31, 2008, of $4,337 a month. However, coverable income can even be higher if there are Impairment Related Work expenses or funds placed in a cafeteria plan at work. Spousal income and significant spousal resources are exempt; your retirement plan and savings accumulated while working under Medi-Cal are also exempt.

If you are not eligible for Medi-Cal under any program (because if you were, that Medi-Cal program would pay all the Medicare premiums), then California will pay the Part A premium under the Qualified Working Disabled Individual (QWDI) program. 42 U.S.C. § 1396(a)(10)(E)(ii); MEDI-CAL ELIGIBILITY PROCEDURES MANUAL § 5-I. You are eligible if your countable monthly income does not exceed 200% of the federal poverty level ($1,733 for one person in 2008,) and you have no more than $4000 ($6000 if a couple) in nonexempt resources.

D. What happens to my Medicare if I apply for expedited reinstatement (EXR) benefits?

You qualify for expedited reinstatement of benefits (a) if your benefits previously stopped because of earnings from work, (b) you are beyond your extended period of eligibility (EPE) in which you could be put back on benefits for any month in which your earnings were below SGA, (c) you continue to be disabled, (d) you apply within 60 months after the end of your EPE or if your SGA came after that, within 60 months after your last benefit month. You will receive six months of provisional Social Security Disability benefits while your disability is being reviewed under the medical improvement standard. Medicare comes automatically with the provisional benefits.

Often no determination has been made on your expedited reinstatement application when the provisional benefits end. If you are in your extended period of Medicare coverage (EPMC), your Medicare, including premium free Part A, will continue. If you came to the end of your EPMC, including while you were receiving provisional benefits, you can continue your Medicare Part A by paying the premium. Your receipt of either provisional benefits or Medicare satisfies the disability criterion under the Medi-Cal programs, which would pay for your premiums, including Part A.

In addition, once your provisional benefits stopped, you would be eligible for Medi-Cal under the Qualified Medicare Beneficiary program – once known as QMB or “quimby,” and now called the Medicare Savings Program or “MSP.” You are eligible if your income is not more than 100% of the federal poverty level ($867per month for one person in 2008) and your nonexempt resources are not more than $4000 ($6000 couple). You probably qualify for the low-income subsidy (LIS) under the Part D program. Medi-Cal pays the premiums, deductibles, and co pays (to the extent that what Medi-Cal would pay is more than what Medicare pays, and only up to the Medi-Cal level,) but does not cover items and services not covered by Medicare – i.e., no vision or dental.

If Social Security determines you are no longer eligible for disability benefits because you have medically improved, that means your Medicare will stop as well. However, if you request for reconsideration within 10 days of receiving the notice and ask that your Medicare continue, your Medicare will continue until the reconsideration decision.

11. How do I enroll in Medicare?

You can get enrolled in Medicare in two ways:

· Medicare will automatically enroll persons ages 65 and older in Parts A and B when they get Social Security or Railroad Retirement benefits, as well as younger persons if you have received Social Security or Railroad Disability Benefits for at least 24 months. About three months before you qualify, you should receive a packet of Medicare information, which includes your Medicare card. If Medicare does not send you this information, you should call the Social Security Administration at 1-800-772-1213.

· If you do not receive Social Security or Railroad Retirement or disability benefits, you can voluntarily apply for Medicare at your local Social Security office or through the 800 number. This may include persons who are 65 years of age but not yet old enough for retirement benefits without regard to earnings. Call this number to apply or to find your local Social Security office: 1-800-772-1213.

· You can apply for Medicare at your local Social Security Office as early as 21 months after receiving disability benefits. 42. C.F.R. § 406.12(e)(2). This will allow you to receive benefits earlier than if you waited for Medicare to automatically enroll you after the 24-month waiting period.

· If you qualify for Medicare because you have end-stage renal disease (ESRD), you must apply for Medicare at your local Social Security office or through the Social Security 800 number. If you are receiving Social Security disability benefits but you are still in your 24-month waiting period, going on dialysis will start your Medicare early. As explained above at page 6, Medicare covers a spouse or children including adult disabled children with ESRD.

12. Will I have to pay a premium for Medicare?

There is no Part A premium if you are automatically eligible for Medicare. If you wish to enroll in Part B, you must pay a premium, which is $96.40 monthly in 2008 if your annual income is $82,000 or less for an individual and $164,000 for a couple. This Part B premium amount goes up on a sliding scale for persons with higher adjusted gross incomes.

Your Part D premium depends on what Prescription Drug Plan you chose. CMS projects the cost of a PDP in 2008 to average $25 a month.

If you are not automatically eligible for Medicare, you may voluntarily enroll in Medicare if you are 65 years of age, and either a citizen or a legal alien who has lived in the U.S. for at least five years. You will pay a premium. The Part A premium for 2008 is $423 per month if you have 29 or fewer quarters of Social Security coverage, with a sliding scale for more covered quarters. An individual may voluntarily enroll in Part B, which covers most assistive technology, without enrolling in Part A. But if the voluntary enrolls in Part A, she must also enroll in Part B. Voluntary enrollment is not available if you are under age 65, even if you have a disability, except as part of a work incentive program as described in Question 10.C. above.

13. How do I sign up for a Medicare Advantage Plan?

In general, you can join a Medicare Advantage plan when you first become enrolled in Medicare or during the annual election period between November 15 to December 31 of every year, and during the Medicare open enrollment period of January 1 through March 31. During those time periods Medicare beneficiaries also can change plans or return to the traditional fee-for-service Medicare system. If you are eligible for Medi-Cal as well as Medicare you can make these changes at any time throughout the year.

You can find out the plan options in your area through the Medicare Beneficiary Contact Center referenced in Question 1. We strongly recommend that you also consult with your Local HICAP program (contact information also in Question 1) before moving from traditional Medicare to Medicare Advantage and for help in selecting a plan. Medicare Advantage plans are required to provide at least the same scope of benefits as traditional Medicare and often provide additional benefits such as dental or vision. The Preferred Provider and other care coordination options available through Medicare Advantage may assist Medicare beneficiaries in rural areas in getting the services they need where Medicare Advantage HMOs are not available. However, any plan limits your access to those providers that participate in the plan.

Medicare Advantage plans provide one important procedural protection not available in traditional Medicare: the ability to challenge in the fair hearing process the denial of prior authorization for durable medical equipment or a prosthetic or orthotic device. In traditional Medicare you have to purchase the item before you can challenge Medicare’s refusal to cover.

14. Can I be eligible for Medicare and Medi-Cal at the same time?

If you are eligible for Medicare either automatically or by voluntary enrollment, you may also be eligible for Medi-Cal. Medi-Cal eligibility is beyond the scope of this chapter but see Question 10. above. In addition to coverage under one of the regular Medi-Cal programs, you may be eligible for premium assistance under one of the “Medicare Savings Programs” such as the QMB program discussed in question 10.D. above and the QWDI program discussed in question 10.C. above.

Normally we advise against purchasing a Medigap policy (see question 15 below) if you have Medi-Cal as well as Medicare. However, for those individuals whose countable income is above the ceiling for the Aged & Disabled Federal Poverty Level (A&DFPL) Program ($1081per month through March, 2008), it may be something we would recommend where the alternative would be a share of cost of all your countable income above $600 a month. See discussion below.

15. If I do not qualify for Medi-Cal, is there other insurance that I can get to help me pay for the costs of original Medicare? What about Medigap?

There are 12 standardized Medigap policies labeled A through L, which help pay some of the costs (deductible and co pays) that traditional Medicare does not cover. Although under federal law there are no open enrollment rights for Medicare beneficiaries under the age of 65, California law requires certain access protections for Medicare recipients under age 65 (except for those with ESRD) but limits them to 6 out of the 12 standardized plans. The primary open enrollment period for persons under the age of 65 is the first 6 months of receiving Medicare. For those who were Medicare beneficiaries before turning 65, the first six months after turning 65 is also an open enrollment period. For Medicare beneficiaries over the age of 65, their open enrollment is the six months after they began receiving Medicare Part B. Other events may trigger either an open enrollment period or a guaranteed issue period (usually 63 days). Deciding whether to buy a policy and choosing a policy are complicated and individualized matters. We recommend that you consult with your local Health Insurance Counseling and Advocacy Program (HICAP) at 1-800-434-0222. See, also, the website http://www.calmedicare.org/medigap/index.html.

Some Medicare beneficiaries who are retired have retiree health insurance from their union or former employer. Retiree coverage may pay some of the health care costs that Medicare does not cover.

16. If I have traditional Medicare, how much do I have to pay for Part B services in addition to the premium?

There is a deductible for Part B services that goes up annually ($135 per year in 2008). After you meet this deductible in a year, Medicare pays 80% and you pay 20% of the “Medicare-approved amount.” The Medicare-approved amount is the amount that Medicare says a service or item should cost. Your costs may be more if your doctor or supplier does not accept assignment.

17. What does it mean if my doctor or supplier “accepts assignment?”

Some providers and suppliers in traditional Medicare have agreed to provide services and equipment on an assignment basis. This means that the provider agrees to accept, as payment in full, the Medicare-allowed amount. The allowed amount is paid 80% by Medicare and 20% by you. Part B Medicare providers are only required to accept assignment in cases involving: lab tests; ambulance services; Medicare-covered drugs and biologicals related to the use of DME; prosthetics; orthotics; and supplies (i.e. medicine used in a nebulizer for a person with asthma). Otherwise providers are not required to accept assignment and thus can pick and choose when to accept assignment and when not to accept assignment.

Ask the equipment provider if they would agree to provide services on an assignment basis. There is an obvious advantage to purchasing services and equipment from providers who have agreed to accept assignment. Carriers have to give you a complimentary copy of the current (in 2007 issued in May) Medicare Participating Physicians/Suppliers Directory (MEDPARD) if you ask for it. It lists all physicians and suppliers in the area that have agreed to accept assignment. MEDICARE CARRIERS MANUAL § 7551(E). Lists of local participating DME providers by the type of equipment needed are available on line at www.medicare.gov and also by calling 1-800-663-4227.

18. What if my doctor does not accept assignment?

If your doctor does not accept assignment, he/she can charge you more than the Medicare-allowed amount. This is called “balance billing.” However, federal law limits the amount a doctor can balance bill. Ordinarily, a doctor who does not accept assignment cannot bill you for more than 115 percent of the Medicare-allowed amount. This is called the “limiting charge.”

For example, you visit your doctor who does not accept assignment. The doctor’s bill is $500, but the Medicare-allowed amount is only $200 for the service. The doctor must thus reduce the bill to $230. Medicare will pay $160 (80 percent of $200). The doctor cannot charge you more than $70 ($230 minus the Medicare payment of $160).

Doctors may elect to opt out of the Medicare program totally and thereby be exempt from the “limiting charge.” If they do opt out by no longer being a Medicare-enrolled provider, the doctor must opt out for a minimum of two years. Neither Medicare nor a Medigap policy will reimburse you for the part Medicare or the Medigap policy would have paid had the physician not opted out.

The “limiting charge” and “assignment” protections apply only to services that Medicare would cover. If the service is for something that the doctor contends is not coverable by Medicare, the physician’s office will ask you to sign a waiver of liability.

19. Does the “limiting charge” apply to suppliers and physical therapists who do not accept assignment?

No. Unlike physicians, suppliers and those providing outpatient rehabilitation services as well as other providers who do not agree to assignment (called “participating”) are not subject to the limiting charge. They can charge more and still be enrolled in the Medicare program. Our experience is that assignment is often agreed to by the outpatient rehabilitation therapists (occupational and physical therapy, speech therapy,) although there is an annual limit on Medicare coverage of outpatient therapy services, which is $1,810 in 2008, except for patients who can prove that they need additional therapy days. However, DME suppliers usually do not accept assignment – at least with respect to the expensive equipment our clients often need. DME providers who are enrolled and “participating” accept assignment but usually only with respect to certain types of equipment or supplies. While enrolled providers not accepting assignment are required to bill Medicare to be paid directly by Medicare for 80% of the Medicare-allowed rate, providers who are not enrolled do not bill Medicare. You have to seek reimbursement on your own by filing a claim with Medicare. However, you must deal with an enrolled provider on rented items, diabetes supplies, and Part B covered medications and supplies that are used with equipment including prostheses.

The Medicare-enrolled suppliers may charge you the market price. You will be expected to pay any amount above the amount Medicare allows, plus the 20% of the allowed amount which is your co-pay. In reality, this can be a lot of money, especially for expensive items like custom wheelchairs. It is not uncommon for Medicare to set the allowed amount at only 40% or 50% of the market value of a custom wheelchair. The difference between the market value and the allowed amount can easily total $5,000 or $6,000. You can appeal the inadequacy of the allowed amount, but in original Medicare Parts A and B you have to buy the item before you can appeal. So for many, no appeal is possible.

20. I have both Medicare and Medi-Cal. Do I also have to pay the amount Medicare does not allow?

No. In your case, Medi-Cal is responsible for paying the amount that is above Medicare’s rate. This is because of a court order called the Charpentier injunction. The injunction comes from a decision in the case of Charpentier v. Belshe, CCH Medicare and Medicaid Guide, New Dev. 43,123 (E.D. Cal. 1994). The Charpentier injunction applies to medical equipment and supplies such as customized wheelchairs.

Under Charpentier, you and the provider must first apply for prior approval from Medi-Cal for the equipment through a Treatment Authorization Request (TAR). See Chapter 10 of this manual for information on Medi-Cal. If Medi-Cal approves the TAR, it will tell the provider how much Medi-Cal will pay. The provider then delivers the equipment to you and submits a bill electronically to Medicare. After Medicare pays what it considers to be 80% of the Medicare-approved rate, the billing goes electronically to Medi-Cal which pays 20% of the Medicare rate. The provider then does a balance billing for the difference between what was paid in the electronic crossover billing process and the amount Medi-Cal would pay were it the only payor. In our experience the underlying reason for the disconnect between what Medicare and Medi-Cal will cover is the Medicare limitation of DME to that which you need to get around in your own home versus the Medi-Cal standard of covering what you need for mobility in the community as well as in the home.

For more information on the Charpentier injunction, you may want to ask Disability Rights California for a publication called “Obtaining Durable Medical Equipment for Persons Eligible for Both Medicare and Medi-Cal.”

21. How can I tell whether Medicare will cover the assistive technology I need?

Medicare will only pay for services and equipment that it finds to be reasonable and necessary for the diagnosis or treatment of illness or injury, or to improve the functioning of a malformed body member. 42 U.S.C. § 1395y (a)(1)(A); 42 C.F.R. § 411.15(k). This is the Medicare medical necessity standard. In addition, Medicare interprets the statute as covering only the durable medical equipment you need to use in your home. 42 U.S.C. § 1395x (n).

For certain types of services and equipment Medicare has made a determination about whether and when a piece of equipment or service will be covered as reasonable and necessary. Those determinations are the National Coverage Determinations (NCDs) that are binding on all the DME MACs and through the QIC and ALJ stages of appeal. 42 U.S.C. §§ 1395ff(3)(B)(ii)(I) and 1395ff(f)(1)(A)(i). However they can be challenged at the last stage of appeal in federal court. Currier v. Leavitt, 490 F.Supp.2d 1, 5-7 (D.Me. 2007). The Local Coverage Determinations (LCDs) for California are issued by the DME MACs discussed in Question 3. The starting point is looking to see whether there is any National Coverage Determinations or Local Coverage Determinations that address the item you need. Go to this website – www.cms.hhs.gov/mcd/overview.asp - which allows you to search the data base. Or you can call the Medicare Beneficiary Center to get their help directly or through referral to Noridian to get copies of the NCDs and LCDs you need. (See Question 3 infra.) In the Attachments B and C we have included edited versions of the NCDs and LCDs for “mobility assistive equipment” or “power mobility devices,” CMS terms that include wheelchairs. These or any NCD or LCD for any covered service or equipment provides a road map for the medical necessity justification that needs to be provided.

22. Why is it that Medicare will only cover the kind of wheelchair I need to get around in my home but not what I need to go out in the community?

The Medicare statute that includes “durable medical equipment” defines DME as equipment “used in the patient’s home.” Section 1861(n) of the Act, 42 U.S.C. § 1395x(n). Although advocates contend that Congress used that term simply to exclude from coverage equipment used in a hospital or other medical facilities, CMS has interpreted “used in the patient’s home” as part of the medical necessity coverage definition. MEDICARE BENEFIT POLICY MANUAL, Ch. 15 § 110, CMS Pub. 100-02. For instance, Medicare will not cover wheelchair features you need for mobility in the community unless you also need those features for mobility in the home. Medicare has denied coverage for a portable oxygen system needed to go to the doctor because the need is for use out of the home.

23. How does Medicare define my home for purposes of durable medical equipment? How does the DME home limitation differ from the Home Health Care “homebound” limitation?

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

The Medicare DME only-what-you-need-in-the-home rule is less draconian than the “homebound” limitation for Medicare home heath care. You would not be considered “homebound” and would be denied all Medicare home health care if you went to work two days a week even if you, as a person with quadriplegia who uses a ventilator, need home health care to get out of bed each day and to stay alive. S.S.A. §§ 1814(a), 1835(a); 42 U.S.C. §§ 1395f (a), 1395n (a).

24. What if the DME provider says Medicare won’t cover what I need? What if my doctor agrees I need an upgrade on the equipment Medicare would cover?

If your doctor or supplier believes that Medicare may not pay for an item or service that is usually covered by Medicare, they must give you a written notice called an Advance Beneficiary Notice (ABN). 42 U.S.C. § 1395pp. The ABN form (CMS-R-131-G, 6-02) must explain the items and services in question and the reasons the doctor or supplier thinks that Medicare will not pay.

When you receive an ABN, you have two options:

· You can request that the provider give you the service or item and agree to pay for the service or item yourself (or through other insurance) if Medicare does not pay. The provider will submit a claim to Medicare for an initial determination. If Medicare denies coverage, the provider can bill you personally for the service. You also can appeal the denial.

· You may decline to receive the health care. In this case, your doctor will not submit a claim to Medicare and you will not receive a Medicare decision about payment.

· The ABN procedure also applies on upgrades. For instance, when a Medicare beneficiary’s physician and occupational therapist prescribes a wheelchair with wheels that can handle rutted streets and sidewalks, the DME provider would issue an ABN explaining that because DME is limited to what you need to get around your home, Medicare won’t pay for the additional features you need for mobility in the community. MEDICARE CLAIMS PROCESSING MANUAL, Chapter 30, § 50.7.5 (10-01-03.)

25. What can I do to be sure Medicare will not deny my request?

The key to submitting a successful Medicare claim is good medical documentation of medical necessity and reasonableness that expressly addresses the standards in any applicable National Coverage Determination or Local Coverage Determination. See Attachments B and C and Questions 21. Physicians and suppliers must provide detailed reports that:

· Establish your diagnosis, prognosis, and the nature and extent of your functional limitations;

· List devices and therapeutic interventions that you have tried in the past; and

· Record the results and your past experience with the suggested item. The physician must establish that the requested equipment is medically necessary, is part of your course of treatment, has a potential functional outcome, and that no less expensive appropriate equipment is available.

· If there are multiple parts, like special features on a wheelchair, explain why each and every item is needed.

· If the item is durable medical equipment, remember that Medicare will only consider what you need to perform your activities of daily living within your home. Medicare does not cover what you need to function outside your home and in the community.

26. How can I determine if the equipment I need is durable medical equipment (DME) under Medicare Part B?

Medicare says that DME:

· Can withstand repeated use;

· Is primarily and customarily used to serve a medical purpose;

· Generally is not useful to you in the absence of an illness or injury;

· Is appropriate for use in the home; 42 U.S.C. §§ 1395m(a)(13), 1395x(n); 42 C.F.R. § 414.202; and

· Is necessary and reasonable to treat an illness or injury, or to improve functioning; 42 U.S.C. § 1395y(a).

All of these elements must be satisfied before Medicare will cover an item of DME. In special situations, it is better to classify an item as a medical supply, appliance, or device than as DME. This is because Medicare will not cover DME if you use it in a hospital or skilled nursing facility. 42 U.S.C. §§ 1395x(n), 1395x(e)(1), 1395i-3(a)(1). See Warder v. Shalala, 149 F.3d 73 (1st Cir. 1998).

27. What items of durable medical equipment (DME) does Medicare cover?

See the listing of items at Section 280.1 of the National Coverage Determination Manual, Attachment A, also available on line at www.cms.hhs.gov/manuals/IOM, Publication 100-03. Medicare covers DME such as:

· Iron lungs, respirators, intermittent positive pressure breathing machines, and oxygen tents;

· Hospital beds;

· Wheelchairs, including power chairs, customized chairs, and power vehicles (like tri-wheelers);

· Crutches, canes, trapeze bars, or walkers;

· Inhalators and nebulizers;

· Commodes;

· Suction machines;

· Traction equipment;

· Heart pacemakers;

· Infusion pumps;

· Whirlpool baths;

· Blood-testing strips and blood glucose monitors (if you are diabetic); and

· A seat-lift mechanism (not including the seat-lift chair).

Medicare will also pay for institutional dialysis services and supplies, and for home dialysis supplies and equipment. 42 U.S.C. § 1395x(s).

Items such as hospital beds and wheelchairs are presumed to be medical in nature. CMS Pub. 100-02, MEDICARE POLICY BENEFITS MANUAL (MPBM), Ch.15 § 110.1.B.1. Equipment which is generally used for nonmedical purposes is presumed to be nonmedical. Medicare will not pay for nonmedical equipment. This is true even though the item has some medically related use. For example, an air filter may be necessary if you have severe allergies. An air conditioner may be necessary if you have difficulty controlling internal body temperature because of impairment in your autonomic nervous system. Medicare does not consider either item to be medical equipment because the primary and customary use of a filter or an air conditioner is a nonmedical one. MPBM, Ch. 15, § 110.1.B.2 See, also, CMS IOM Pub. 100-03, Ch. 1, Pt. 4 § 280.1 which sets out a DME reference list of what is covered and not covered.

Some items that Medicare will not cover include: all environmental control devices, including items such as air filters and humidifiers (not medical in nature); Braillers and Braille texts (educational in nature); all exercise equipment (not primarily medical in nature); eyeglasses and contacts, except one pair after cataract surgery; and telephones and television set rental fees during hospital stays. MBPM, Id.; Bedford County General Hospital v. Heckler, 574 F. Supp. 943 (E.D. Tenn. 1983).

The binding effect of National Coverage Determinations and CMS manuals in the administrative appeal process makes it very difficult, short of litigation, to turn around a denial based on the ground that the item is not medical. But a careful threading of the needle in the absence of an express exclusion might duplicate the case where Medicare approved a computer to help a stroke victim communicate. The man could not speak or write legibly. The Medicare Appeals Council found the computer to be a prosthetic device that replaced the injured portion of his brain. Similarly, on appeal Medicare covered a Visualtek read/write system, an electronic device which can magnify an item to over 60 times its original size, as a reasonable and necessary medical/optical aid for use with low vision. Medicare Fair Hearing Decision, HIC No. 062-44-0658-A, 1980. See also Currier v. Leavitt, 490 F.Supp.2d at 11-15.

Medicare may cover a few special items even though they are useful in the absence of illness or disability. These include gel pads, and pressure and water mattresses (when prescribed because you are susceptible to bedsores) and heat lamps (if you have an established medical need for heat therapy). MEDICARE BENEFITS POLICY MANUAL§ 110.1.B.3.

28. What factors do the Medicare DME MACs consider when deciding whether or not to pay for an item of durable medical equipment (DME)?

The factors required to be considered are set out in the MEDICARE BENEFITS POLICY MANUAL at Ch. 15, § 110.1.C.

· The equipment is medically necessary for you. It must be expected to make a meaningful contribution to the treatment of your illness or disability. The carrier must also get a prescription and other information establishing why you need the device.

· The equipment is reasonable. To determine this, the carrier considers:

· Whether the cost of the item is too high in relation to its therapeutic benefit;

· Whether the item costs much more than another medically appropriate item that would serve the same purpose; and

· Whether the item serves the same purpose as equipment already available to you.

If the DME MAC finds that a less expensive, but appropriate, alternative device will meet your need, it will limit payment to the reasonable charge for that device.

29. What is the federal rule for buying or renting assistive technology?

The basic rule is that you will rent DME. It caps the monthly rental payment at 10% of the “national limited payment amount” for the equipment for the first three months of use. The national limited payment amount is calculated according to a formula. After the third month, the rental payment is 7.5% of the national limited payment amount. Rental payments are made while you have a medical need for the equipment, but for no longer than 13 continuous months for rental periods beginning on or after January 1, 2006.

At the end of the thirteenth month, Medicare will have the supplier transfer title of the item to you. After that, rental/purchase payments stop, but Medicare may make maintenance and servicing payments. To participate in the Medicare program, suppliers must agree to accept the 13 payments as payment in full. A supplier who knowingly and willfully bills more than that amount is subject to fines and exclusion from the program. 42 U.S.C. §§ 1395m(a)(11), 1395u(j)(2).

In reaching the maximum of 13 continuous months, there can be an interruption in use for up to 60 days, plus the days you did not use it in the month use stopped. For example, you rent an item in January for 12 months. Then you go to the hospital on May 15, and stay for 50 days in June and July. The beginning of the rental period still began at the time of the initial rental. The same continuous rental period policy applies to breaks in medical necessity. 42 C.F.R. § 414.230(c)(3). The provider may pick up the equipment but must return it when you return home, or when the equipment is again medically necessary. An interruption of more than 60 days requires new justification of medical necessity and the beginning of a new rental period. 42 C.F.R. § 414.230(d). If you move, your move is not necessarily an interruption in the period of continuous use. However, new equipment may trigger a new period of continuous use, unless the equipment is new due to a change in supplier.

As a beneficiary, you may sell equipment you bought that you no longer need. Medicare cannot ask you to reimburse it in such a circumstance.

30. Are there any exceptions to Medicare’s equipment rental rule?

There are five exceptions to the basic rental rule. For each of these exceptions, different rules apply for coverage and the ownership arrangement:

· Inexpensive or routinely purchased equipment;

· Items that need frequent and substantial servicing;

· Customized items such as wheelchairs;

· Prosthetic and orthotic devices (non-durable medical equipment); and

· Oxygen and oxygen equipment.

Inexpensive or routinely purchased equipment is equipment that costs less than $150 or which is bought rather than rented at least 75% of the time. These items can be rented or paid for in a lump sum. Examples include accessories used with nebulizers, aspirators or ventilators. CMS Pub. 100-04, Medicare Claims Processing Manual (MCPM), Ch. 20, § 30.1. If rented, the 13-month rule does not apply, but the total payments cannot exceed the purchase price. 42 U.S.C. § 1395m(a)(2).

Equipment that requires frequent and substantial servicing, such as ventilators, aspirators, and nebulizers, will be rented on a monthly basis only, or will be bought outright. If rented, the total rental amounts cannot exceed the purchase price. 42 U.S.C. § 1395m(a)(3).

Customized items (those that need substantial modification to meet your individual needs) will be bought with a single payment. 42 U.S.C. § 1395m(a)(4). A lump sum payment may also be made for maintenance and servicing. Whether a device needs substantial modification is a question of fact. For example, adding custom seating and positioning pads to a wheelchair may result in it being considered a custom item. Buying an item that will be used over a period of years with a single payment is generally favorable to you.

Prosthetic and orthotic devices, items that are not considered DME are purchased on a lump sum basis only. 42 U.S.C. § 1395m(a)(6). The exceptions include items requiring frequent and substantial servicing, parenteral/enteral nutrition supplies and equipment, and intraocular lenses. CMS Pub. 100-04, MCPM, Ch. 20, § 30.4.

Oxygen and oxygen equipment is covered on a rental basis only. 42 U.S.C. § 1395m(a)(5).

31. When does Medicare repair or replace durable medical equipment (DME)?

Generally, Medicare considers DME to have a lifetime of at least five years during a continuous period of medical need. But CMS may set a different reasonable lifetime for certain items. Medicare will cover replacement DME at the end of the lifetime of an item as long as it is still medically necessary. Medicare will also cover replacement DME or the cost of repair under certain circumstances if the carrier finds:

· That the item is lost or irreparably damaged; and

· That the loss or damage is not due to misuse or neglect on your part.

CMS Pub. 100-02, MBPM, Ch. 15, § 110. A carrier will not pay for a replacement due to misuse or neglect because coverage for replacement in this circumstance is not reasonable. 42 U.S.C. § 1395y(a)(1)(A). Repair is not covered for rented equipment since these charges are normally part of the rental charge. CMS Pub. 100-04, MCPM, Ch. 20, § 10.2.

32. What prosthetic and orthotic appliances does Medicare cover?

Medicare will cover reasonable and necessary prosthetic devices that replace all or part of an internal body organ including colostomy bags and supplies; leg, arm, back, and neck braces; artificial larynxes; and artificial legs, arms, and eyes. This is not a complete list. You can argue for purchase of any device that replaces the function of any body part. As technology increases, the kinds of available prosthetics should also increase. Medicare will cover the supplies that are necessary for the effective use of prosthetic devices, such as the batteries needed to operate an artificial larynx.

33. What medical supplies and appliances does Medicare cover?

Medicare will cover medical supplies and appliances when:

· Your physician certifies them as medically necessary for you; and

· Medicare says they are reasonable. 42 U.S.C. § 1395y(a)(1)(A). This includes surgical dressings, splints, casts, and other devices you need for fractures and dislocations.

34. What is Medicare’s coverage for dialysis and dialysis services?

Medicare will cover dialysis and dialysis services when medically necessary and provided through an approved facility. Medicare will also cover the purchase or rental, installation, and maintenance of all dialysis equipment necessary for home dialysis. Dialysis equipment includes artificial kidney and automated peritoneal dialysis machines; and support equipment such as blood pumps, bubble detectors, and other alarm systems. Medicare also provides home dialysis support services when specified in a written treatment plan. Support includes periodic monitoring, emergency visits by qualified personnel, and maintenance of equipment. 42 C.F.R. §§ 410.50, 410.52.

35. Is Medicare coverage available outside of the U.S?

Medicare will not cover services provided outside of the United States and its territories. It makes an exception for:

· Emergency services in a hospital; or

· A foreign hospital that is much closer to your home than any hospital in the United States. 42 C.F.R. § 411.9.

36. What are National Coverage Determinations (NCDs) and Local Coverage Determinations (LCDs)?

National Coverage Determinations are CMS rulings on whether and when a particular service or item is covered under Medicare. 42 U.S.C. § 1395ff(f)(1)(B). NCDs set out national rules used to determine whether a particular service or item is medically necessary under Section 1862(a)(1)(A) of the Social Security Act, 42 U.S.C. § 1395y(a)(1). NCDs also address scope of benefit questions – i.e., whether a particular device is to be considered durable medical equipment, when a particular device is an excluded personal comfort item, etc. The NCDs are required to be followed nationally by the DME contractors reviewing and processing claims, by Medicare Advantage plans, and in all steps of the administrative appeal process challenging the denial of a claim. 42 U.S.C. §§ 1395ff(c)(3)(B)(2)(ii), 1395ff(f)(1)(A)(i); 20 C.F.R. §§ 405.732, 405.860, 405.968(b)(1) Attachment 11 B at page 11-52, is the NCD on “mobility assistive equipment,” CMS’ term for power wheelchairs, scooters, etc.

Local Coverage Determinations are contractor rulings on the medical necessity of a particular service or item under Medicare. 42 U.S.C. § 1395ff(f)(2)(B). They are issued by a region’s Medicare Administrative Contractors responsible for the medical review and payment of claims. For California, which is in Region D, the contractors for DME and related items are IntegriGuard with its parent EDS and Noriguard. See Question 3 above. The LCDs are binding on the medical review and payment contractors and in any reconsideration (the first step in an appeal) by the contractor. In other steps of the appeal the LCD is not binding but shall be considered. 42 U.S.C. § 1395ff(c)(3)(B)(ii). The regulations go much farther than the statute and say that at the reconsideration, ALJ hearing and Medicare Appeals Council steps in the appeal process, the LCDs will be given “substantial deference” and if not followed, the decision must explain why. 42 C.F.R. § 405.968(b)(2),(3) and § 405.1062(a), (b). Some Medicare Advantage plans – and the second step reconsideration appeal contractors in reviewing Medicare Advantage prior authorization denials - may use LCDs as guidelines

37. How do National Coverage Determinations (NCDs) and Local Coverage Determinations (LCDs) affect me? How will I know if an NCD or LCD was used to deny payment?

NCDs and LCDs are the rules used to determine what Medicare will pay for and what it will not. Because of a settlement in a case called Erringer v. Thompson, the denial notices are required to tell you when an LCD was used to deny payment, tell you its identification number, and tell you where you call to get a copy of the LCD. Medicare contractors are also required to tell you when a denial is based on an NCD. CMS Pub 100-08, MEDICARE PROGRAM INTEGRITY MANUAL, Ch. 3 § 3.4.2. Once you have the NCD or LCD that applies to the durable medical equipment you wanted Medicare to pay for, you may be able to identify additional information to include with your request for redetermination by the Medicare Contractor. The redetermination is the first step in the appeal process discussed in Question 43, below.

38. What if I disagree with an LCD or NCD – for instance that a particular device should be covered for someone with my disability limitations or in my situation. What can I do about it? Can I challenge the LCD or NCD in the regular appeal process?

If you are someone who needs a service or item that you cannot get or Medicare won’t pay for because of an LCD or NCD – that is, if you are an “aggrieved party” in CMS language - there is a procedure where you can challenge all or part of an LCD or NCD. 42 U.S.C. § 1395ff(f); 42 C.F.R. §§ 426.100 through 426.587. There is also a procedure where you can request that CMS issue an NCD with respect to a particular service or item. 42 U.S.C. § 1385ff(f)(4). Filing a complaint for “review” of an LCD or NCD is a process separate from and different than filing an appeal of Medicare’s refusal to pay for a device or equipment. In the complaint for “review” of an LCD or NCD you are challenging the rule that applies or was applied to you. In the appeal you are not challenging the NCD or LCD rule that was applied to you but rather saying that the rule was incorrectly applied to you, that you qualify under the NCD or LCD. You can pursue both at the same time.

There are initial timelines for filing a complaint seeking review of a provision of an LCD or NCD: If a claim for payment has been denied, a complaint must be filed within 120 days of receiving the initial determination. This is the same amount of time you have to file an initial request for redetermination under the original or traditional Medicare program appeal process.

You may also file a complaint challenging a provision of an LCD or NCD before you secure the service or item. You can challenge an LCD or NCD even if you have not received the service or item as long as your doctor says you need it. Your complaint must be filed within 6 months of the doctor’s prescription or statement that you need the service or item.

39. What happens if I win my challenge to an LCD or NCD or to a provision of an LCD or NCD? Does that mean Medicare will pay for the service or item?

What you win is the removal of the LCD or NCD as a barrier to processing your claim or request for an Advance Determination of Medicare Coverage (ADMC). The Medicare medical necessity and other rules still apply when your claim is processed. So winning does not necessarily mean Medicare will pay for the service or item.

40. I need a power wheelchair with special features. Is there any way I can find out whether or not Medicare will pay for it before I agree to buy it?

Yes! Medicare law says that a beneficiary can ask for a determination of coverage in advance of actually purchasing durable medical equipment. 42 U.S.C. § 1395m(a)(15)(C). This is called an “Advance Determination of Medicare Coverage” (ADMC). Medicare law emphasizes the importance of an ADMC for customized items. The determination of coverage looks at what is rated in light of Medicare rules, including National Coverage Determinations, Local Coverage Determinations, and the medical documentation of need that you submit. See CMS Pub. 100-08, MEDICARE PROGRAM INTEGRITY MANUAL, Ch. 5, §§ 5.16 and 5.17.

41. How do I go about submitting an Advance Determination of Medicare Coverage (ADMC) for the power wheelchair with the special features that I need?

You submit an ADMC request through your durable medical equipment provider. The provider will put together the cover sheet and other papers explaining the particular DME you are asking about. You are responsible for getting the medical justification for the wheelchair and for the special features you need. The ADMC request is mailed or sent via facsimile to IntegriGuard, the current “Payment Safeguard Contractor” and DME “Benefit Integrity Support Center” for Region D, which includes California. It is responsible for making the ADMC on durable medical equipment.

The key part of getting a favorable ADMC is the medical documentation for why you need a wheelchair, why that wheelchair needs to be a power wheelchair, and why you need the special features. Because Medicare only covers the DME you need to function in your home, the medical documentation should talk about what you need for activities of daily living in your home. Attachment 11 B, starting at page 11-52, is the National Coverage Determination about “mobility assistive equipment” (a CMS term for wheelchairs and scooters collectively). Attachment 11 C, starting at page 11-57, is the Local Coverage Determination on “power mobility devices” (another CMS term for power wheelchairs and scooters) that expands on the NCD. These are the rules that will be applied when reviewing your medical records. Look at the NCD and LCD as a roadmap for what should be included in your medical documentation. If your ADMC is denied, and you decide you were denied because you did not include enough information, you have to wait six months before submitting another ADMC on that item.

42. Can the occupational therapist who sometimes works for the DME provider do the assessment that goes with the ADMC request – or supports the reimbursement request if I go ahead and get the wheelchair without an ADMC request first? What if I pay for the assessment directly to the therapist?

No. And your paying the therapist directly won’t fix the problem. There has to be a declaration that there is no financial relationship generally between the medical professionals providing the medical documentation and the DME provider.

43. What is my doctor’s role in the ADMC request or medical justification or the reimbursement request?

There has to be a face-to-face meeting with the doctor who signs the certificate of need and prescribes the wheelchair you need, even though the bulk of the assessment has been done by an occupational therapist.

44. If the ADMC decision is a denial, can I appeal? Is there anything else I can do?

You cannot appeal an ADMC denial. Under Medicare rules you can only appeal a denial of payment for something you received. However, you can challenge a denial that was based on a provision of a Local Coverage Determination or a National Coverage Determination. See questions 35 and 36 above.

If there was a denial and you think additional information could change the outcome, you can resubmit the ADMC if you wait six months.

45. If the ADMC decision is an approval, does that mean Medicare will pay my claim when I purchase the item?

The Medicare Contractor is bound by the favorable medical necessity decision provided the claim is submitted within 6 months of the ADMC decision. However, despite the ADMC there may be a problem with your Medicare eligibility when the claim is submitted or you may disagree with the amount allowed. So you may end up appealing, but for reasons other than medical necessity.

46. What rights do I have if Medicare refuses to pay my claim or a Medicare Advantage plan refuses to authorize what I need?

If Medicare denies coverage for the claim, you have the right to appeal. You have these rights whether you are in traditional or original Medicare or in a Medicare Advantage plan. The procedures for appeals under traditional or original Medicare are explained in Question 45. The procedures for appeals for those enrolled in Medicare Advantage plans are explained in Question 46.

Congress enacted legislation in 2001 to create a uniform appeal system for Parts A and B of traditional Medicare. The regulations enacting the changes at 42 C.F.R. §§ 405.900 – 405.1140 went into effect May 1, 2005. CMS Pub. 100-04, MEDICARE CLAIMS PROCESSING MANUAL, Ch. 29. Among the changes are timelines for each step in the process.

One possible difference between Medicare Advantage appeals and appeals under the original Medicare program is how you count the time to appeal when triggered by a notice. The original Medicare program expressly provides that you count the time to appeal from the date of receipt and that there is a rebuttable presumption that a notice mailed to you was received 5 days after the date on the notice assuming that is the date mailed. The Medicare Advantage regulations are silent on this.

Medicare hearings used to be conducted in-person by Social Security Administrative Law Judges in one of the many Social Security Hearings & Appeals Offices. The Medicare Modernization Act of 2003 shifted this hearing function to the Office of Medicare Hearings and Appeals in the Department of Health and Human Services. Hearings are now held in only four locations in the country, including one in Irvine, California. Instead of in-person hearings, the only viable options are telephone or videoconference hearings -- even though federal law says the hearing rights under Medicare are to be the same as those under Social Security. 42 U.S.C. § 1395ff(b)(1)(A). The Medicare Office of Hearings and Appeals routinely denies authorization for in-person hearings even when claimants are willing to travel to one of the four office location.

In 2000 only 3% of denied Part B claims were appealed. Of the claims that were not resolved at the initial carrier level, Medicare beneficiaries or providers were partly or wholly successful in half of those appeals.

There are similar themes in each of the Medicare appeals systems. These include:

· The right to a review of a denied, reduced or terminated health care service or item;

· The right to receive a written notice that explains the reason for the claim denial and the steps for appealing it;

· The right to file a late appeal when good cause is shown;

· The right to a hearing by an Administrative Law Judge, where you can present evidence and testimony to support your case; and

· The right to seek review by a federal judge if you lose at the administrative appeal level.

47. If the Medicare Contractor denies my claim for durable medical equipment, how will I know?

You will receive a notice in the mail. Your notice is called a Medicare Summary Notice (MSN) (sent just once every 90 days) or Explanation of Medicare Benefits (EOMB). This is called an initial determination. There will be an explanation of the reason for the denial, whether the denial was based on a National Coverage Decision or Local Coverage Decision, and if so, how to get a copy. There will be a toll free number to call for more information.

48. What are my appeal rights if I am in traditional or original Medicare and Medicare denies payment for an item of durable medical equipment?

Your appeal rights start with your receipt of your initial determination – the MSN or EOMB - such as the denial of payment for a device.

The first step in the appeal process is filing a written request for redetermination by the Medicare contractor who denied your claim. You have 120 days from receiving the initial determination to do this. Attachment 11 D includes information and an appeal form you can fill out and send in to the Medicare contractor that denied your claim to:

DME MAC, P.O. Box 6727, Fargo ND 58108-6727,

Fax 1-888-408-7405

However, before you file you may want to get more information about the reason for the denial so that you will know if there is additional information to submit. The Medicare contractor has 60 days to make the redetermination. If you send in additional information after you file your request for redetermination, it will add 14 days to the time period for the redetermination decision.

The second step in the appeal process is filing a written request for reconsideration by the Qualified Independent Contractor (QIC). For durable medical equipment, prosthetic and orthotic devices, and related medications and supplies, the QIC is:

River Trust Solutions, Inc., P.O. Box 180208, Chattanooga TN 37401-7208.

River Trust is a subsidiary of Blue Cross/Blue Shield. You have 180 days from receiving the redetermination denial to request for reconsideration. Attachment 11 D includes information and an appeal form you can mail to River Trust as indicated on the redetermination form. The redetermination denial, among other things, will identify missing documents that need to be submitted as part of the request for reconsideration, and advise that any evidence to be submitted in the appeal process should be submitted with the request for reconsideration. If, when you file your reconsideration request and any additional evidence, you think there may be further evidence, say that on the form. You should include a statement that sets out the “allegations of fact or law related to the issue in dispute and explain[s] why [you] disagree with the initial determination ... redetermination.” 42 C.F.R. § 405.966(a). The QIC is supposed to be independent and have the medical expertise in order to evaluate the underlying medical merits of your claim. The time period for issuing a reconsideration decision is 60 days from the request, plus an additional 14 days every time additional evidence is submitted. If the QIC has not issued a reconsideration decision at the end of the time period, the QIC notifies the claimant that he or she has a right to elect to escalate to an ALJ hearing.

The third step in the appeal process is a hearing before an administrative law judge with the Office of Medicare Hearings and Appeals (OMHA). You can go to this step only if the amount in controversy is $120 or more in 2008 – with the amount to be increased by the cost of living in subsequent years. Claims can be aggregated to satisfy the amount in controversy requirement under certain circumstances. 42 C.F.R. § 405, 1006(e),(f). You have 60 days from receiving the QIC decision to request an ALJ hearing. Attachment D includes information about the ALJ hearing and the form for requesting an ALJ hearing, which should be sent to the address indicated in the QIC decision or to:

OMHA Western Regional Office

27 Technology Dr., Ste. 100, Irvine, CA 92618-2364

Telephone 866-495-7414

Hearings are by telephone or video conference. Rarely are in-person hearings authorized even when the Medicare beneficiary and witnesses are willing to travel to Irvine. The regulations do not set out any time lines for the issuance of an ALJ decision.

The fourth and final step in the administrative appeal process is a review by the Medicare Appeals Council (MAC). You have 60 days from the receipt of the ALJ decision to request a review. Attachment D includes an appeal form which should be sent to the address indicated in the ALJ decision if different from this:

DHHS, Departmental Appeals Board, MS 6127, Medicare Appeals Council,

330 Independence Avenue, S.W. Room G-644, Washington D.C. 20201

If the MAC decision is adverse, a lawsuit may be filed in the federal district where the Medicare beneficiary lives. Any lawsuit must be filed within 60 days of receiving the MAC decision provided the amount in controversy is $1180 or more in 2007.

49. What if my Medicare Advantage plan denies authorization for the wheelchair prescribed by my doctor?

In addition to the expedited and regular appeals discussed here, there is also a “fast track” appeal process for beneficiaries in Medicare Advantage plans who are about to be discharged from a hospital, skilled nursing facility, home health care agency or a comprehensive rehabilitation facility. 42 C.F.R. §§ 422.620 – 422.626.

Step One – Organization Determination

Under Medicare Advantage plans, the plan rather than the DME Medicare Contractor makes the initial determination about whether Medicare will cover an item or service – for instance, to authorize a wheelchair. The initial decision is called an “organization determination.” 42 C.F.R. § 422.566. Examples of organization determinations include decisions about:

· Payment for out-of-network renal dialysis, emergency, or urgent care services;

· Whether you are entitled to receive various health services from the plan, such as assistive technology or diagnostic tests;

· Whether you can have access to specialists; and

· Whether the plan can terminate a service.

You can ask for an organization determination on either a standard time frame or an expedited (speeded up) time frame. How the process works depends on which time frame you choose.

Standard time frame: Under the standard time frame, your Medicare Advantage plan must notify you of its decision within 14 calendar days of a request for a service, and within 30 days of a request for payment. 42 C.F.R. § 422.568. Either you or the Medicare Advantage plan can extend this period another 14 days in requests for service. The Medicare Advantage plan, however, must justify why it needs the extension--for example, to get more information for your benefit.

Expedited Organization Determination: You may be entitled to an expedited organization determination if using the standard time frame could seriously jeopardize your life, health or recovery. 42 C.F.R. § 422.570. The MA plan must grant the request for an expedited determination if your physician submits an oral or written statement supporting your need for the quicker time frame because the standard time frame would seriously jeopardize your life or health or your ability to regain maximum function. 42 C.F.R. § 422.570(b). Your doctor need not be affiliated with the MA plan; he or she need only be familiar with your condition. 42 C.F.R. § 422.570(a). You may still request an expedited organization determination without a physician statement, but the MA can deny the request.

If the Medicare Advantage plan approves your request for an expedited determination, it must give you a decision no later than 72 hours after receiving your request. 42 C.F.R. § 422.572(a). If the MA plan needs more medical information from out-of-plan providers, it may extend the deadline by up to 14 calendar days upon either your request or the plan’s justification of an extension due to a need for additional information for your benefit. 42 C.F.R. § 422.572(b). If the MA plan tells you orally “no,” it must mail you written confirmation within three working days of the oral notification. 42 C.F.R. § 422.572(c).

If the MA denies your request for an expedited determination, it must transfer the request to the standard time frame track and tell you promptly about the denial. 42 C.F.R. § 422.570(d). It must then follow up within three working days with a letter explaining:

· That the HMO will follow the standard time frame;

· That you have the right to file a grievance if you disagree with the decision; and

· That you have the right to resubmit the request with a supporting statement from your physician.

Written notice of denial: If your Medicare Advantage plan denies your expedited request for a service or payment (or even a part of it) it must notify you in writing. 42 C.F.R. § 422.572(c). The notice must contain:

· Specific reasons for the denial, in understandable language; and

· Information on your right to a reconsideration and appeal including the right to an expedited reconsideration and appeal.

Step Two – Reconsideration

If you disagree with the Medicare Advantage plan’s organization determination, you can request a standard or expedited reconsideration. 42 C.F.R. § 422.578. Someone who was not involved in making the original organization determination must conduct the reconsideration. When the issue involves the medical necessity of an item or service, a doctor with expertise in the relevant field of medicine must conduct the review. 42 C.F.R. § 422.590(g).

Standard Reconsideration: You must file a signed, written request for a standard reconsideration with your Medicare Advantage plan [42 C.F.R. § 422.582(a)] within 60 days of the initial determination notice. 42 C.F.R. § 422.582(b). You can file it later for good cause. 42 C.F.R. § 422.582.

On a reconsideration of your request for services the Medicare Advantage plan must either:

· Give you the service you ask for in the reconsideration; or

· Send a written explanation of its determination with your case file to the Independent Review Entity (IRE) with which Medicare has contracted to perform a review: Maximus Center for Health Dispute Resolution (Maximus CHDR) within 30 days. 42 C.F.R. § 422.590(a).

Either you or the MA plan can extend this period another 14 days. The MA plan, however, must justify why it needs the extension; for example, to get more information for your benefit.

On a reconsideration of your request for payment, the Medicare Advantage plan must either:

· Make the requested payment; or

· Send a written explanation of its adverse determination, with your case file, to the IRE with which Medicare has contracted to perform the review: Maximus Center for Health Dispute Resolution (CHDR), within 60 days. 42 C.F.R. § 422.590(b).

Expedited Reconsideration: Either you or a physician may make a request for expedited reconsideration directly with the Medicare Advantage plan to challenge a refusal to provide or pay for a service or the discontinuance or reduction of a service. 42 C.F.R. § 422.584(a). As with an organization determination, the MA plan must expedite its reconsideration if the physician says (or the plan decides) that the standard time for reconsideration of its determination could seriously jeopardize your life, health or recovery. 42 C.F.R. § 422.584(c)(2).

If your Medicare Advantage plan denies a request for expedited reconsideration, it must tell you by giving you written notice that it has automatically transferred the request to the standard time frame. 42 C.F.R. § 422.584(d).

If the MA approves your request for expedited reconsideration, it must notify you within 72 hours after receiving the request. Either you or the Medicare Advantage plan can extend this period another 14 calendar days if justified. 42 C.F.R. § 422.590(d). If the MA plan needs medical information from out-of-plan providers, the MA plan must request that information within 24 hours of receiving the request. 42 C.F.R. § 422.590(d)(4).

The MA plan must either:

· Give you the service within 72 hours; or

· Forward the case file, with a written explanation of the decision if any, to the Independent Review Entity with which Medicare has contracted to perform a review: Maximus Center for Health Dispute Resolution (Maximus CHDR) within 24 hours. 42 C.F.R. §§ 422.590(d)(5), (f). At the same time, the MA plan must notify you that it has forwarded the matter to Maximus CHDR. 42 C.F.R. § 422.590(e).

Step Three – Review by the Maximus Center for Health Dispute Resolution

If you do not agree with the result of your MA’s reconsideration, the Maximus Center for Health Dispute Resolution (Maximus CHDR) can review it. If some issues have been resolved, CHDR can review just those that remain in dispute. CHDR is an independent agency that contracts with CMS. 42 C.F.R. § 422.592(a). CHDR must conduct the review as quickly as your health condition requires. 42 C.F.R. § 422.592(b). Under its contract with CMS, Maximus CHDR time frames are 72 hours to 17 days for an expedited review, 30 to 44 days for service denials, and 30 to 60 days for payment denials.

When Maximus CHDR has completed its reconsideration, it must mail you a notice that:

· Sets out the reasons for its decision; and

· Informs you about your right to an administrative hearing before an administrative law judge if any part of the reconsideration decision is adverse. 42 C.F.R. § 422.594.

Step Four – Administrative Law Judge hearing

You may ask for an administrative hearing if:

· The amount of money you and the HMO do not agree on is more than $120 in 2008; or

· The projected value of the requested service is over $120 in 2008.

· 42 C.F.R. § 422.600. As with ALJ hearings involving the original Medicare program, the amount in controversy for an ALJ hearing will go up each year with the cost of living.

The form for requesting a hearing before an administrative law judge with the Office of Medicare Hearings and Appeals is included in Attachment 11 D and should be sent to the address listed in the reconsideration decision. You must file your request within 60 days of the date on Maximus CHDR’s notice of reconsideration. 42 C.F.R. § 422.602(b). Although not expressly referenced, we presume the time to request a hearing may be extended upon a showing of good cause under the standard in 42 C.F.R. § 405.1014(c).

Step Five – The Medicare Appeals Council (MAC) Review

You, or the Medicare Advantage plan, or any other party to the hearing, may request a review of the administrative hearing decision by the Medicare Appeals Council. 42 C.F.R. § 422.608. Note that while the plan can request review by the MAC, the regulations expressly prohibit the plan from requesting an ALJ hearing. 42 C.F.R. § 422.596.

Step Six - Reopening a Determination

At any point in your dispute with the HMO, through the MAC determination, you may petition the entity that made the decision to reopen and revise its decision. 42 C.F.R. §§ 422.616, 405.980. A petition for reopening can be especially useful if your time to appeal has elapsed. You have 12 months from the date of the given notice to file a petition for reopening, and up to four years if you can show good cause. 42 C.F.R. § 405.980(b). The petition for reopening may also be the only available option if you are dissatisfied with a Maximus CHDR decision, and the amount in controversy is less than $120, so that you cannot proceed to an ALJ hearing.

Step Seven – Judicial Review

Anyone who is not satisfied with a MAC decision (or denial of review), including the Medicare Advantage plan, may request judicial review of the decision if the amount in controversy is $1180 or more in 2008. 42 U.S.C. § 405(g); 42 C.F.R. § 422.612

50. What are my rights when I have a complaint against a Medicare Advantage plan that does not involve an organization determination and the regular appeal process?

Besides the appeals process, all plans must have separate grievance procedures to handle issues that do not involve organization determination issues such as coverage and payment for medical care. Grievances may be used to address issues such as wait time for appointments, the right to an expedited review, and problems with customer service. Medicare requires plans to have a meaningful grievance process that timely resolves complaints and informs you how to use the grievance process. See 42 C.F.R. § 422.564.

In addition to the appeals and grievances, if you have a quality of care issue you are concerned about, you can file a complaint with your Quality Improvement Organization (QIO). For California that is Lumetra, 800-841-1602, a group of practicing doctors and health professionals with experience addressing quality issues beyond the Medicare Advantage arena.

51. If I have Medicare questions, where can I get help?

For information about Medicare eligibility, enrollment, and premiums call the Social Security Administration at 1-800-772-1213.

To get general help with Medicare questions, you can call 1-800-Medicare (1-800-633-4227) to speak with a CMS representative. The TTY/TDD line is 1-877-486-2048. Information is also available on the CMS website at www.medicare.gov.

To receive free, individualized counseling about Medicare and help with appeals, call 1-800-434-0222 to meet with a Health Insurance Counseling and Advocacy Program (HICAP) counselor in your county. Persons with disabilities may also wish to call Disability Rights California at 1-800-776-5746.

For information about the Medicare program in California, as well as the options for covering health costs not paid for by Medicare, you can use www.calmedicare.org, a website sponsored by the California HealthCare Foundation.

Other websites with useful information include the following:

· www.Medicare.gov, the Medicare Beneficiary Contact Center

· Daniel_Schreiner@cms.hhs.gov, the CMS Medicare ombudsman.

· www.cahealthadvocates.org, the website for the California HICAP programs.

· www.medicareadvocacy.org, the Center for Medicare Advocacy, a public interest legal center based in Washington, D.C., Connecticut and Arizona.

· www.medicareright.org, the Medicare Rights Center, a consumer advocacy organization based in New York.

· www.vcu-barc.org, the Virginia Commonwealth University’s program assisting persons on disabilities and SSI or SSDI benefits attempting to work

· http://www.cms.hhs.gov/manuals/ which gets you to the Medicare manuals which explain the Medicare rules. Look particularly at the online manuals.

(Blank Page)

ATTACHMENTS TO CHAPTER 11

Attachment 11-A

Medicare National Coverage Determinations Manual

Chapter 1, Part 4 (§ 200 – 310.1) - Coverage Determinations

§ 280 - Medical and Surgical Supplies (Rev. 1, 10-03-03)

§ 280.1 - Durable Medical Equipment Reference List (Rev. 37, Issued: 06-03-05; Effective: 05-05-05; Implementation: 07-05-05)

The durable medical equipment (DME) list that follows is designed to facilitate the contractor’s processing of DME claims. This section is designed as a quick reference tool for determining the coverage status of certain pieces of DME and especially for those items commonly referred to by both brand and generic names. The information contained herein is applicable (where appropriate) to all DME national coverage determinations (NCDs) discussed in the DME portion of this manual. The list is organized into two columns. The first column lists alphabetically various generic categories of equipment on which NCDs have been made by the Centers for Medicare & Medicaid Services (CMS); the second column notes the coverage status.

In the case of equipment categories that have been determined by CMS to be covered under the DME benefit, the list outlines the conditions of coverage that must be met if payment is to be allowed for the rental or purchase of the DME by a particular patient, or cross-refers to another section of the manual where the applicable coverage criteria are described in more detail. With respect to equipment categories that cannot be covered as DME, the list includes a brief explanation of why the equipment is not covered. This DME list will be updated periodically to reflect any additional NCDs that CMS may make with regard to other categories of equipment.

When the contractor receives a claim for an item of equipment which does not appear to fall logically into any of the generic categories listed, the contractor has the authority and responsibility for deciding whether those items are covered under the DME benefit.

These decisions must be made by each contractor based on the advice of its medical consultants, taking into account:

MEDICARE CLAIMS PROCESSING MANUAL, Chapter 20, “Durable Medical Equipment, Prosthetics and Orthotics, and Supplies (DMEPOS).”

Whether the item has been approved for marketing by the Food and Drug Administration (FDA) and is otherwise generally considered to be safe and effective for the purpose intended; and

Whether the item is reasonable and necessary for the individual patient.

The term DME is defined as equipment which:

· Is primarily and customarily used to serve a medical purpose;

· Generally is not useful to a person in the absence of illness or injury;

· Is appropriate for use in a patient’s home; and,

· Can withstand repeated use; i.e., could normally be rented and used by successive patients.

Durable Medical Equipment Reference List

Item	Coverage
Air Cleaners	Deny--environmental control equipment; not primarily medical in nature (§1861(n) of the Act).
Air Conditioners	Deny--environmental control equipment; not primarily medical in nature (§1861(n) of the Act).
Air-Fluidized Beds	(See Air-Fluidized Beds §280.8 of this manual.)
Alternating Pressure Pads, Mattresses and Lambs Wool Pads	Covered if patient has, or is highly susceptible to, decubitus ulcers and patient’s physician specifies that he/she will be supervising the course of treatment.
Audible/Visible Signal/ Pacemaker Monitors	(See Self-Contained Pacemaker Monitors.)
Augmentative Communication Devices	(See Speech-Generating Devices §50.1 of this manual.)
Bathtub Lifts	Deny--convenience item; not primarily medical in nature (§1861(n) of the Act).
Bathtub Seats	Deny--comfort or convenience item; hygienic equipment; not primarily medical in nature (§1861(n) of the Act).
Bead Beds	(See §280.8.)
Item	Coverage
Bed Baths (home type)	Deny--hygienic equipment; not primarily medical in nature (§1861(n) of the Act).
Bed Lifters (bed elevators)	Deny--not primarily medical in nature (§1861(n) of the Act).
Bedboards	Deny--not primarily medical in nature (§1861(n) of the Act).
Bed Pans (autoclavable hospital type)	Covered if patient is bed-confined.
Bed Side Rails	(See Hospital Beds §280.7 of this manual.)
Beds-Lounges (power or manual)	Deny--not a hospital bed; comfort or convenience item; not primarily medical in nature (§1861(n) of the Act).
Beds (Oscillating)	Deny--institutional equipment; inappropriate for home use.
Bidet Toilet Seats	(See Toilet Seats.)
Blood Glucose Analyzers (Reflectance Colorimeter)	Deny--unsuitable for home use (see §40.2 of this manual).
Blood Glucose Monitors	Covered if patient meets certain conditions (see §40.2 of this manual).
Braille Teaching Texts	Deny--educational equipment; not primarily medical in nature (§1861(n) of the Act).
Canes	Covered if patient meets Mobility Assistive Equipment clinical criteria (see §280.3 of this manual).
Carafes	Deny--convenience item; not primarily medical in nature (§1861(n) of the Act).
Catheters	Deny—non-reusable disposable supply (§1861(n) of the Act). (See Medicare Claims Processing Manual, Chapter 20, DMEPOS).
Item	Coverage
Commodes	Covered if patient is confined to bed or room. NOTE: The term “room-confined” means that patient’s condition is such that leaving the room is medically contraindicated. The accessibility of bathroom facilities generally would not be a factor in this determination. However, confinement of a patient to a home in a case where there are no toilet facilities in the home may be equated to room confinement. Moreover, payment may also be made if a patient’s medical condition confines him to a floor of the home and there is no bathroom located on that floor.
Communicators	(See §50.1 of this manual, Speech Generating Devices.)
Continuous Passive Motion Devices	Continuous passive motion devices are devices covered for patients who have received a total knee replacement. To qualify for coverage, use of the device must commence within 2 days following surgery. In addition, coverage is limited to that portion of the 3-week period following surgery during which the device is used in the patient’s home. There is insufficient evidence to justify coverage for longer periods of time or for other applications.
Continuous Positive Airway Pressure (CPAP) Devices	(See §240.4 of this manual.)
Crutches	Covered if patient meets Mobility Assistive Equipment clinical criteria (see section 280.3 of this manual).
Cushion Lift Power Seats	(See Seat Lifts.)
Dehumidifiers (room or central heating system type)	Deny--environmental control equipment; not primarily medical in nature (§1861(n) of the Act.
Diathermy Machines (standard pulses wave types)	Deny--inappropriate for home use (see §150.5 of this manual).
Digital Electronic Pacemaker Monitors	(See Self-Contained Pacemaker Monitors).
Item	Coverage
Disposable Sheets and Bags	Deny--nonreusable disposable supplies (§1861(n) of the Act).
Elastic Stockings	Deny--nonreusable supply; not rental-type items (§1861(n) of the Act.) (See §270.5 of this manual.)
Electric Air Cleaners	Deny--(see Air Cleaners.) (§1861(n) of the Act).
Electric Hospital Beds	(See Hospital Beds §280.7 of this manual.)
Electrical Stimulation for Wounds	Deny--inappropriate for home use. (See §270.1 of this manual.)
Electrostatic Machines	Deny--(see Air Cleaners and Air Conditioners.) (§1861(n) of the Act).
Elevators	Deny--convenience item; not primarily medical in nature (§1861(n) of the Act).
Emesis Basins	Deny--convenience item; not primarily medical in nature (§1861(n) of the Act).
Esophageal Dilators	Deny--physician instrument; inappropriate for patient use.
Exercise Equipment	Deny--not primarily medical in nature (§1861(n) of the Act).
Fabric Supports	Deny—non-reusable supplies; not rental-type items (§1861(n) of the Act).
Face Masks (oxygen)	Covered if oxygen is covered. (See §240.2 of this manual.)
Face Masks (surgical)	Deny—non-reusable disposable items (§1861(n) of the Act).
Flowmeters	(See Medical Oxygen Regulators.) (See §240.2 of this manual.)
Fluidic Breathing Assisters	(See Intermittent Positive Pressure Breathing Machines.)
Fomentation Devices	(See Heating Pads.)
Gel Flotation Pads and Mattresses	(See Alternating Pressure Pads and Mattresses.)
Grab Bars	Deny--self-help device; not primarily medical in nature (§1861(n) of the Act).
Heat and Massage Foam Cushion Pads	Deny--not primarily medical in nature; personal comfort item (§1861(n) and 1862(a)(6) of the Act).
Item	Coverage
Heating and Cooling Plants	Deny--environmental control equipment not primarily medical in nature (§1861(n) of the Act).
Heating Pads	Covered if contractor’s medical staff determines patient’s medical condition is one for which the application of heat in the form of a heating pad is therapeutically effective.
Heat Lamps	Covered if contractor’s medical staff determines patient’s medical condition is one for which the application of heat in the form of a heat lamp is therapeutically effective.
Hospital Beds	(See §280.7 of this manual.)
Hot Packs	(See Heating Pads.)
Humidifiers (oxygen)	(See Oxygen Humidifiers.)
Humidifiers (room or central heating system types)	Deny--environmental control equipment; not medical in nature (§1861(n) of the Act).
Hydraulic Lifts	(See Patient Lifts.)
Incontinent Pads	Deny—non-reusable supply; hygienic item (§1861(n) of the Act).
Infusion Pumps	For external and implantable pumps, see §40.2 of this manual. If pump is used with an enteral or parenteral nutritional therapy system, see §180.2 of this manual for special coverage rules.
Injectors (hypodermic jet)	Deny--not covered self-administered drug supply; pressure- powered devices (§1861(s)(2)(A) of the Act) for injection of insulin.
Intermittent Positive Pressure Breathing Machines	Covered if patient’s ability to breathe is severely impaired.
Iron Lungs	(See Ventilators.)
Irrigating Kits	Deny—non-reusable supply; hygienic equipment (§1861(n) of the Act).
Lambs Wool Pads	(See Alternating Pressure Pads, Mattresses, and Lambs Wool Pads.)
Leotards	Deny--(See Pressure Leotards.) (§1861(n) of the Act).
Item	Coverage
Lymphedema Pumps	Covered (See Pneumatic Compression Devices §280.6 of this manual.)
Massage Devices	Deny--personal comfort items; not primarily medical in nature (§1861(n) and 1862(a)(6) of the Act).
Mattresses	Covered only where hospital bed is medically necessary. (Separate Charge for replacement mattress should not be allowed where hospital bed with mattress is rented.) (See §280.7 of this manual.)
Medical Oxygen Regulators	Covered if patient’s ability to breathe is severely impaired. (See §240.2 of this manual.)
Mobile Geriatric Chairs	Covered if patient meets Mobility Assistive Equipment clinical criteria (see §280.3 of this manual). (See Rolling Chairs).
Motorized Wheelchairs	Covered if patient meets Mobility Assistive Equipment clinical criteria (see §280.3 of this manual).
Muscle Stimulators	Covered for certain conditions. (See §250.4 of this manual.)
Nebulizers	Covered if patient’s ability to breathe is severely impaired.
Oscillating Beds	Deny--institutional equipment; inappropriate for home use.
Over-bed Tables	Deny--convenience item; not primarily medical in nature (§1861(n) of the Act).
Oxygen	Covered if oxygen has been prescribed for use in connection with medically necessary DME. (See §240.2 of this manual.)
Oxygen Humidifiers	Covered if oxygen has been prescribed for use in connection with medically necessary DME for purposes of moisturizing oxygen. (See §240.2 of this manual.)
Oxygen Regulators (Medical)	(See Medical Oxygen Regulators.)
Oxygen Tents	(See §240.2 of this manual.)
Paraffin Bath Units (Portable)	(See Portable Paraffin Bath Units.)
Item	Coverage
Paraffin Bath Units (Standard)	Deny--institutional equipment; inappropriate for home use.
Parallel Bars	Deny--support exercise equipment; primarily for institutional use; in the home setting other devices (e.g., walkers) satisfy patient’s need.
Patient Lifts	Covered if contractor’s medical staff determines patient’s condition is such that periodic movement is necessary to effect improvement or to arrest/retard deterioration in condition.
Percussors	Covered for mobilizing respiratory tract secretions in patients with chronic obstructive lung disease, chronic bronchitis, or emphysema, when patient/operator of powered percussor receives appropriate training by a physician/therapist, and no one competent to administer manual therapy is available.
Portable Oxygen Systems	1. Regulated Covered (adjustable covered under conditions specified in a flow rate). Refer all claims to medical staff for this determination. 2. Preset Deny (flow rate deny emergency, first-aid, or not adjustable) precautionary equipment; essentially not therapeutic in nature.
Portable Paraffin Bath Units	Covered when patient has undergone a successful trial period of paraffin therapy ordered by a physician and patient’s condition is expected to be relieved by long-term use of this modality.
Portable Room Heaters	Deny--environmental control equipment; not primarily medical in nature (§1861(n) of the Act).
Portable Whirlpool Pumps	Deny--not primarily medical in nature; personal comfort items (§§1861(n) and 1862(a)(6) of the Act).
Postural Drainage Boards	Covered if patient has a chronic pulmonary condition.
Item	Coverage
Preset Portable Oxygen Units	Deny--emergency, first-aid, or precautionary equipment; essentially not therapeutic in nature.
Pressure Leotards	Deny--non-reusable supply, not rental-type item (§1861(n) of the Act).
Pulse Tachometers	Deny--not reasonable or necessary for monitoring pulse of homebound patient with/without a cardiac pacemaker.
Quad-Canes	Covered if patient meets Mobility Assistive Equipment clinical criteria (see §280.3 of this manual).
Raised Toilet Seats	Deny--convenience item; hygienic equipment; not primarily medical in nature (§1861(n) of the Act).
Reflectance Colorimeters	(See Blood Glucose Analyzers.)
Respirators	(See Ventilators.)
Rolling Chairs	Covered if patient meets Mobility Assistive Equipment clinical criteria (see §280.3 of this manual). Coverage is limited to those roll-about chairs having casters of at least 5 inches in diameter and specifically designed to meet the needs of ill, injured, or otherwise impaired individuals. Coverage is denied for the wide range of chairs with smaller casters as are found in general use in homes, offices, and institutions for many purposes not related to the care/treatment of ill/injured persons. This type is not primarily medical in nature. (§1861(n) of the Act.)
Safety Rollers	Covered if patient meets Mobility Assistive Equipment clinical criteria (see §280.3 of this manual).
Sauna Baths	Deny--not primarily medical in nature; personal comfort items (§§1861(n) and (1862(a)(6) of the Act).
Seat Lifts	Covered under conditions specified in §280.4 of this manual. Refer all to medical staff for this determination.
Item	Coverage
Self-Contained Pacemaker Monitors	Covered when prescribed by a physician for a patient with a cardiac pacemaker. (See §§20.8.1 and 280.2 of this manual.)
Sitz Baths	Covered if contractor’s medical staff determines patient has an infection/injury of the perineal area and the item has been prescribed by the patient’s physician as part of planned regimen of treatment in patient’s home.
Spare Tanks of Oxygen	Deny--convenience or precautionary supply.
Speech Teaching Machines	Deny--education equipment; not primarily medical in nature (§1861(n) of the Act).
Stairway Elevators	Deny--(See Elevators.) (§1861(n) of the Act).
Standing Tables	Deny--convenience item; not primarily medical in nature (§1861(n) of the Act).
Steam Packs	These packs are covered under same conditions as heating pads. (See Heating Pads.)
Suction Machines	Covered if contractor’s medical staff determines that the machine specified in the claim is medically required and appropriate for home use without technical/professional supervision.
Support Hose	Deny (See Fabric Supports.) (§1861(n) of the Act).
Surgical Leggings	Deny--non-reusable supply; not rental-type item (§1861(n) of the Act).
Telephone Alert Systems	Deny--these are emergency communications systems and do not serve a diagnostic/therapeutic purpose.
Toilet Seats	Deny--not medical equipment (§1861(n) of the Act).
Traction Equipment	Covered if patient has orthopedic impairment requiring traction equipment that prevents ambulation during period of use. (Consider covering devices usable during ambulation; e.g., cervical traction collar, under brace provision.)
Item	Coverage
Trapeze Bars	Covered if patient is bed-confined and needs a trapeze bar to sit up because of respiratory condition, to change body position for other medical reasons, or to get in/out of bed.
Treadmill Exercisers	Deny--exercise equipment; not primarily medical in nature (§1861(n) of the Act).
Ultraviolet Cabinets	Covered for selected patients with generalized intractable psoriasis. Using appropriate consultation, contractor should determine whether medical/other factors justify treatment at home rather than at alternative sites, e.g., outpatient department of a hospital.
Urinals autoclavable	Covered if patient is bed-confined (hospital type).
Vaporizers	Covered if patient has a respiratory illness.
Ventilators	Covered for treatment of neuromuscular diseases, thoracic restrictive diseases, and chronic respiratory failure consequent to chronic obstructive pulmonary disease. Includes both positive/negative pressure types. (See §240.5 of this manual.)
Walkers	Covered if patient meets Mobility Assistive Equipment clinical criteria (see §280.3 of this manual).
Water and Pressure Pads and Mattresses	(See Alternating Pressure Pads, Mattresses, and Lambs Wool Pads.)
Wheelchairs (manual)	Covered if patient meets Mobility Assistive Equipment clinical criteria (see §280.3 of this manual).
Wheelchairs (power-operated)	Covered if patient meets Mobility Assistive Equipment clinical criteria (see §280.3 of this manual).
Wheelchairs (scooter/POV)	Covered if patient meets Mobility Assistive Equipment clinical criteria (see §280.3 of this manual).
Item	Coverage
Wheelchairs (specially-sized)	Covered if patient meets Mobility Assistive Equipment clinical criteria (see §280.3 of this manual).
Whirlpool Bath Equipment	Covered if patient is homebound and has a (standard) condition for which the whirlpool bath can be expected to provide substantial therapeutic benefit justifying its cost. Where patient is not homebound but has such a condition, payment is restricted to the cost of providing the services elsewhere; e.g., an outpatient department of a participating hospital, if that alternative is less costly. In all cases, refer claim to medical staff for determination.
Whirlpool Pumps	Deny--(See Portable Whirlpool Pumps.) (§1861(n) of the Act).
White Canes	Deny-- (See §280.2 of this manual.) (Not considered Mobility Assistive Equipment)

Cross-references:

MEDICARE BENEFIT POLICY MANUAL, Chapters 13, “Rural Health Clinic (RHC) and Federally Qualified Health Center (FQHC) Services,” 15, “Covered Medical and Other Health Services.”

MEDICARE CLAIMS PROCESSING MANUAL, Chapters 12, “Physician/Practitioner Billing,” 20, “Durable Medical Equipment, Prosthetics and Orthotics, and Supplies (DMEPOS),” 23, “Fee Schedule Administration and Coding Requirements.”

http://www.cms.hhs.gov/manuals/iom/

Attachment 11- B

Medicare National Coverage Determination Manual

§ 280.3 - Mobility Assistive Equipment (MAE)

(Effective May 5, 2005)

(Rev. 37, Issued: 06-03-05; Effective: 05-05-05; Implementation: 07-05-05)

A. General

The Centers for Medicare & Medicaid Services (CMS) addresses numerous items that it terms “mobility assistive equipment” (MAE) and includes within that category canes, crutches, walkers, manual wheelchairs, power wheelchairs, and scooters. This list, however, is not exhaustive.

Medicare beneficiaries may require mobility assistance for a variety of reasons and for varying durations because the etiology of the disability may be due to a congenital cause, injury, or disease. Thus, some beneficiaries experiencing temporary disability may need mobility assistance on a short-term basis; while in contrast, those living with chronic conditions or enduring disabilities will require mobility assistance on a permanent basis.

Medicare beneficiaries who depend upon mobility assistance are found in varied living situations. Some may live alone and independently while others may live with a caregiver or in a custodial care facility. The beneficiary’s environment is relevant to the determination of the appropriate form of mobility assistance that should be employed. For many patients, a device of some sort is compensation for the mobility deficit. Many beneficiaries experience co-morbid conditions that can impact their ability to safely utilize MAE independently or to successfully regain independent function even with mobility assistance.

The functional limitation as experienced by a beneficiary depends on the beneficiary’s physical and psychological function, the availability of other support, and the beneficiary’s living environment. A few examples include muscular spasticity, cognitive deficits, the availability of a caregiver, and the physical layout, surfaces, and obstacles that exist in the beneficiary’s living environment.

B. Nationally Covered Indications

Effective May 5, 2005, CMS finds that the evidence is adequate to determine that MAE is reasonable and necessary for beneficiaries who have a personal mobility deficit sufficient to impair their participation in mobility-related activities of daily living (MRADLs) such as toileting, feeding, dressing, grooming, and bathing in customary locations within the home. Determination of the presence of a mobility deficit will be made by an algorithmic process, Clinical Criteria for MAE Coverage, to provide the appropriate MAE to correct the mobility deficit.

Clinical Criteria for MAE Coverage

The beneficiary, the beneficiary’s family or other caregiver, or a clinician, will usually initiate the discussion and consideration of MAE use. Sequential consideration of the questions below provides clinical guidance for the coverage of equipment of appropriate type and complexity to restore the beneficiary’s ability to participate in MRADLs such as toileting, feeding, dressing, grooming, and bathing in customary locations in the home. These questions correspond to the numbered decision points on the accompanying flow chart. In individual cases where the beneficiary’s condition clearly and unambiguously precludes the reasonable use of a device, it is not necessary to undertake a trial of that device for that beneficiary.

· Does the beneficiary have a mobility limitation that significantly impairs his/her ability to participate in one or more MRADLs in the home? A mobility limitation is one that:

· Prevents the beneficiary from accomplishing the MRADLs entirely, or,

· Places the beneficiary at reasonably determined heightened risk of morbidity or mortality secondary to the attempts to participate in MRADLs, or,

· Prevents the beneficiary from completing the MRADLs within a reasonable time frame.

· Are there other conditions that limit the beneficiary’s ability to participate in MRADLs at home?

· Some examples are significant impairment of cognition or judgment and/or vision.

· For these beneficiaries, the provision of MAE might not enable them to participate in MRADLs if the comorbidity prevents effective use of the wheelchair or reasonable completion of the tasks even with MAE.

· If these other limitations exist, can they be ameliorated or compensated sufficiently such that the additional provision of MAE will be reasonably expected to significantly improve the beneficiary’s ability to perform or obtain assistance to participate in MRADLs in the home?

· A caregiver, for example a family member, may be compensatory, if consistently available in the beneficiary's home and willing and able to safely operate and transfer the beneficiary to and from the wheelchair and to transport the beneficiary using the wheelchair. The caregiver’s need to use a wheelchair to assist the beneficiary in the MRADLs is to be considered in this determination.

· If the amelioration or compensation requires the beneficiary's compliance with treatment, for example medications or therapy, substantive non-compliance, whether willing or involuntary, can be grounds for denial of MAE coverage if it results in the beneficiary continuing to have a significant limitation. It may be determined that partial compliance results in adequate amelioration or compensation for the appropriate use of MAE.

· Does the beneficiary or caregiver demonstrate the capability and the willingness to consistently operate the MAE safely?

· Safety considerations include personal risk to the beneficiary as well as risk to others. The determination of safety may need to occur several times during the process as the consideration focuses on a specific device.

· A history of unsafe behavior in other venues may be considered.

· Can the functional mobility deficit be sufficiently resolved by the prescription of a cane or walker?

· The cane or walker should be appropriately fitted to the beneficiary for this evaluation.

· Assess the beneficiary’s ability to safely use a cane or walker.

· Does the beneficiary’s typical environment support the use of wheelchairs including scooters/power-operated vehicles (POVs)?

· Determine whether the beneficiary’s environment will support the use of these types of MAE.

· Keep in mind such factors as physical layout, surfaces, and obstacles, which may render MAE unusable in the beneficiary’s home.

· Does the beneficiary have sufficient upper extremity function to propel a manual wheelchair in the home to participate in MRADLs during a typical day? The manual wheelchair should be optimally configured (seating options, wheelbase, device weight, and other appropriate accessories) for this determination.

· Limitations of strength, endurance, range of motion, coordination, and absence or deformity in one or both upper extremities are relevant.

· A beneficiary with sufficient upper extremity function may qualify for a manual wheelchair. The appropriate type of manual wheelchair, i.e. light weight, etc., should be determined based on the beneficiary’s physical characteristics and anticipated intensity of use.

· The beneficiary's home should provide adequate access, maneuvering space and surfaces for the operation of a manual wheelchair.

· Assess the beneficiary’s ability to safely use a manual wheelchair.

· NOTE: If the beneficiary is unable to self-propel a manual wheelchair, and if there is a caregiver who is available, willing, and able to provide assistance, a manual wheelchair may be appropriate.