ACCESSING ASSISTIVE TECHNOLOGY THROUGH MEDICAID 

I.      INTRODUCTION

II.    MEDICAID REQUIREMENTS FOR AT

III.   COVERAGE FOR ADULTS OVER AGE 21

IV.  COVERAGE FOR PERSONS UNDER AGE 21

V.    HOW TO APPEAL A DENIAL OR NO ACTION BY MEDICAID

I. INTRODUCTION

If you or someone you know is in the process of looking for assistive technology ("AT"), you may be amazed at the variety and scope of technology that is available. You may find the process of identifying the AT that meets your unique needs both complex and time-consuming. Once you have made your selection, you may face a much bigger challenge -- finding a way to pay for your AT. This manual is intended to be a guide for people with disabilities and their advocates who are seeking Medicaid payment for AT.

Medicaid (also called "Medical Assistance") is a government health insurance program which pays for most medical needs of low-income people. Both the state and federal governments pay for Medicaid, so the rules that cover it are a complicated mix of state and federal laws. While every state has a Medicaid program, there are differences between states, both as to whom is covered and the kinds of services that are provided. This manual will describe how Medicaid can pay for AT in Idaho. Sometimes we will mention the federal or state sources of the rules to help you be better informed about some areas where the rules are in doubt.

The term "assistive technology" generally is not used in Medicaid law. This is not surprising because AT services and devices may include things which traditionally have not been considered "medical." People with disabilities and their advocates will need to be creative in describing their AT needs. You will need to fit your request for AT into the existing categories of Medicaid-covered services and devices. This manual describes the Medicaid services categories which could most probably cover AT services and devices.

The law concerning Medicaid coverage of AT is not well-settled. In Idaho, as in every other state, this law is still in process of developing. For this reason, we have included within this manual a description of appeal rights within the Idaho Medicaid system. Since Medicaid law is not well-settled, your exercise of your appeal rights may well result in a reversal of an unfavorable decision. Because Medicaid regulations are often revised and may then contradict the information in this manual, you should always review the current law and regulations.

Because Medicaid is a program meant to provide payment for medical care, the services you can obtain under Medicaid must have a purpose that can be considered "medical." This is true for supplies and equipment, including AT devices, as well as services such as examinations, surgery, etc. To "justify" any device or service under Medicaid, you will need to show the device or service is "medically necessary." The Idaho Department of Health and Welfare has promulgated rules to define medical necessity as Areasonably calculated to prevent, diagnose, or treat conditions in the client that endanger life, cause pain, or cause functionally significant deformity or malfunction@ and no other equally effective, more suitable or substantially less costly course of treatment is available or suitable. IDAPA 16.03.09.36.

To demonstrate "medical necessity", you will need to show that: (1) the device is included specifically within the state plan or it is included in another specific funding option; and (2) the device is "medically necessary" for you specifically. You will need a doctor's and/or other qualified individual's statement of your medical need.

B. COVERED DEVICES

To determine whether a specific AT device or service can be generally covered by Medicaid you need to determine if the requested device or service is either specifically mentioned in the regulations or whether it could be included under one of the general definitions of the available options. Because of a special law expanding services to children, coverage for adults and children under age 21 is different. Adults are limited to the services that Idaho has included in its state plan or waiver programs. Children, as explained below, have a much broader menu of services without as many constraints. Therefore, coverage will be discussed below first for adults and then for children.

Current Idaho Medicaid regulations define Durable Medical Equipment (DME) as:

1. "Equipment which can withstand repeated use,"

2. "Primarily and customarily medical in nature," and

3. "Generally not useful to a person who does not have an illness or injury."

The second requirement will usually be the key question. It involves an analysis of whether your needed AT device is "medical in nature," and how it is "primarily and customarily" used. Services that we think of as "medical in nature" are those used to diagnose, cure, prevent the worsening of, or alleviate an illness, injury, or disability of the patient.

The word "alleviate" is emphasized because it will often best fit the purpose of an AT device. "Alleviate" could also be the most crucial concept in a dispute with Medicaid. The Medicaid agency might try to insist that a form of treatment is "medical" only if it "cures" the patient's condition, not if it only "alleviates" something about the condition.

The simplest example is the wheelchair, which has customarily been considered "medical" equipment. But it does not cure, for example, multiple sclerosis, or the loss of use of the legs that multiple sclerosis may have caused. The wheelchair does alleviate MS or the paraplegia, though, by restoring the function of mobility that was lost.

Idaho Medicaid has an exclusive list of DME and services it provides in its state regulations. This list can be challenged through a hearing and court process. The regulations also impose limits on the purchase of equipment. Medicaid is required to provide you with the regulations at your request and the regulations are available in many libraries.

B.  AT AS "PROSTHETIC DEVICES"

Artificial limbs are the most familiar kind of prosthetic devices. But the general idea can include other AT devices. Prosthetic devices are defined as "replacement, corrective, or supportive devices" that are prescribed to fulfill at least one of three purposes:

1. "Artificially replace a missing portion of the body;

2. "Prevent or correct physical deformity or malfunction; or

3. "Support a weak or deformed portion of the body."

The first and third purposes will cover things like artificial limbs that replace a physically "missing" part of the body, or an item that is physically attached to the body for support, like a splint. But the second purpose of "correcting [a] malfunction" can reach a broader range of devices. For example, an augmentative and alternative communication device corrects the malfunctions of speech organs and/or the nervous system that led to a loss of speech. It should meet the definition of a prosthetic device. Hearing aids and eyeglasses are also available under certain conditions.

C.  AT AS "HOME HEALTH SERVICES"

Home Health Services include among other things:

• Medical supplies, equipment, and appliances

• Physical therapy

• Occupational therapy

• Speech pathology and audiology services

To receive an AT device or service as "home health care," the device or service must be:

(1) part of a physician's written plan of care, which is reviewed by a physician every 60 days;

(2) provided by a home health agency ("HHA") at the recipient's home; and

(3) suitable for use in the home.

Federal law gives no further definition of the term "medical supplies, equipment, and appliances." The phrase probably means about the same thing as "durable medical equipment" ("DME") used in the Idaho regulations. As mentioned in the DME section above, before approving any device under this category, Medicaid may question whether the device has a "medical" purpose. That is, does it diagnose, cure, prevent the worsening of, or alleviate an illness, injury, or disability? Idaho Medicaid has an exclusive list of medical supply items it will provide. 

D.  AT AS "PHYSICAL THERAPY, OCCUPATIONAL THERAPY, OR SERVICES FOR INDIVIDUALS WITH SPEECH, HEARING, AND LANGUAGE DISORDERS"

These three therapies should all be clear sources of AT, because, according to federal regulation, each includes "any necessary supplies and equipment." Each of these therapies justifies a corresponding kind of AT device.

Physical Therapy is concerned with "restoration of function and prevention of disability," and "preventing, correcting, alleviating and limiting physical disability and physical dysfunction."

Wheelchairs and other mobility devices, especially where special seating and positioning features are needed, are therefore a form of physical therapy -- perhaps the most familiar form. Physical therapy can also include the "alternative access" add-on features needed because of motor impairments for a computer or communication device: special switches, pointer mounting devices, etc.

Occupational Therapy is concerned with "increasing independent function, enhancing development, and preventing disability," and "includes adaptations of tasks or of the environment to achieve maximum independence and optimum quality of life." Equipment, such as environmental control units for the home, needed to carry on the activities of daily living independently, are prime examples of AT that should often be considered to be occupational therapy. Although communication devices are most commonly thought of as correcting speech deficits, they can actually extend to restoring functions in written language as well. Computer-based devices to aid in writing can come within the definition of occupational therapy and be provided to restore communication skills in written language.

Speech Pathology and Audiology Services cover diagnostic, screening, preventive or corrective services. Equipment is included within the definition. It should include providing any augmentative or alternative communication device necessary to restore speech. In Idaho, speech pathology is provided from a developmental disabilities center. A decision by a Medicaid Hearing Officer in February of 1998 stated that an augmentative communication device is a covered service for adults under the speech pathology service category in the Idaho Medicaid plan. Therefore, Idaho Medicaid should fund a communication device for any adult recipient who can document that a recommended device is medically necessary.

E.  AT AS "REHABILITATIVE SERVICES"

Rehabilitation services are: "... any medical or remedial services recommended by a physician or other licensed practitioner of the healing arts, within the scope of his practice under State law, for maximum reduction of physical or mental disability and restoration of a recipient to his best possible functional level."

This federal definition focuses on what AT is meant to do: to restore the functioning of the consumer. It does not focus on "curing" the illness that creates the consumer's impairments, as do some limited concepts of "medical" treatment. The decision by the Medicaid Hearing Officer mentioned under the discussion of speech pathology services also stated that an augmentative communication device is a covered service for adults in the Idaho state Medicaid plan under the rehabilitative services category. This would be another category through which an adult could request funding for a communication device in Idaho.

F.  AT AS A "HOME AND COMMUNITY BASED WAIVER" SERVICE

Waiver Programs (often called just "waiver") are like smaller "mini-Medicaid" programs, added on to the "regular" Medicaid program. There are special eligibility requirements for each, targeted to different types of disability and/or old age. There is a specific group of people who are "on" each of the Waivers. The number of "slots" for each waiver is limited. So, even if you meet the standards for eligibility, you may have to wait to get "on" each of the Waivers.

The HCBSW in Idaho provides Medicaid eligibility and services for individuals who need intensive levels of care. The waiver for individuals with developmental disabilities is limited to approximately 400 people. This waiver, which has only been implemented since July 1995, includes categories for equipment. These include "specialized medical equipment" and "environmental modifications." Communication devices should be available through the waiver. A waiver recipient must still document medical need on a plan.

G.  AT AS "SERVICES IN A NURSING FACILITY OR IN AN INTERMEDIATE CARE FACILITY FOR PEOPLE WITH MENTAL RETARDATION"

This manual does not cover in detail your rights to equipment, or other services, while in these type of facilities. You should be aware that there are some rules applying to facilities that give you some substantial rights. A resident should request the equipment from the facility personnel.

A nursing facility must provide care and services "to attain and maintain the highest practicable physical, mental and psychosocial functional status." You have a right to treatment that will maintain and improve your abilities in activities of daily living. The services must include specialized rehabilitative services, which include occupational therapy, physical therapy, and speech-language pathology. Since those services include the necessary supplies and equipment, these rules are a good basis for getting the AT you need.

In an intermediate care facility for people with mental retardation, you have a right to "communication aids, braces, and other devices" and to "mechanical supports, if needed to achieve proper body position, balance and alignment." Generally, the facility must provide treatment needed to maintain your "current optimal functional status."

The types of services you are entitled to under Medicaid expand greatly for people under 21, due to a part of the federal law called Early & Periodic Screening, Diagnosis & Treatment ("EPSDT"). As long as you have a Medicaid card and are under 21 years old, you have the right-- automatically -- to the expanded services EPSDT provides.

EPSDT aims to deal with people's health problems early in life, and target more intensive resources to children, in order to prevent or minimize the development of major, lifelong problems. As the program name implies, screening for childhood health problems is an important part of EPSDT. But that is not all EPSDT does. The treatment part of EPSDT gives young Medicaid recipients very strong rights to services. It works like this:

All services categories that COULD be covered by Medicaid, MUST be covered, according to the federal list of services categories, and to the full extent of the federal definitions.

For example, if you are under 21 and need "Durable Medical Equipment," you are not restricted to the limited list Idaho includes on its state plan. You get to rely on the federal definition of D.M.E. Communication devices are available to children under EPSDT. Also the limits on purchasing equipment in the state plan do not apply to children if medical necessity is documented. It is important when requesting equipment for children to ask that the request be considered under the "EPSDT" program.

V. HOW TO APPEAL A DENIAL OR NO ACTION BY MEDICAID

A.  YOUR RIGHT TO NOTICE

Whenever Medicaid plans to take any action affecting you, the agency must send you a notice which tells you what action it plans to take and about your right to be heard if you disagree with that action.

The written notice must tell you:

a. what the agency intends to do,
b. their reasons for doing it.
c. the specific regulations or other laws supporting the action, and
d. an explanation of

1. your right to request a hearing,
2. what you need to do to obtain a hearing,
3. the procedures the agency will use to conduct its hearing, and
4. your right to represent yourself or to be represented by legal counsel.

B.  YOUR RIGHT TO A HEARING

Whenever you find that Medicaid denied your request or is taking an unreasonable time to provide you with AT services or devices, you have the right to a hearing and to a written decision based on the law.

Once you have received a notice denying you the AT services or device, you have 30 days from the date on the Notice of Decision form to appeal the decision. Your request for a hearing must be made in writing by you or a representative. Sometimes approval for a device or service will be given that is different from the item you requested. This "authorization" can still be appealed because your request was, in fact, denied.

A Hearing Officer employed by the state will hear your case and make a decision within 45 days unless you agree to an extension. Prior to a hearing you should review your entire Medicaid file relating to the denial and review the relevant regulations. You can request a pre-hearing conference with Medicaid personnel and they will further explain their decision. At the hearing you are entitled to present witnesses and cross-examine the Department's witnesses. Usually if you do not appear with an attorney, the Department will not be represented by an attorney general. Your case should clearly relate to the requirements in the regulations.

It is possible to challenge the Medicaid payment rate for a specific AT device. The federal law requires that payment levels be "sufficient to enlist enough providers so that services are available with Medicaid at least to the extent that they are available to the general population," and "sufficient to reasonably achieve the purpose of the service." If Medicaid approves your AT device, but indicates it will pay an amount which is so low no vendor will sell the device at that price, you have a right to challenge Medicaid's approved amount at a hearing.

C.  HELP WITH THE APPLICATION AND APPEAL PROCESS

For further information or assistance with appealing a denial contact:  Co-Ad, Inc.

This document has been adapted for Idaho from "A Guide to Medicaid Payments for Assistive Technology" produced by Rhode Island Protection and Advocacy System, Inc. It has been adapted by the staff of Co-Ad, Inc. and does not necessarily reflect the views of any of Co-Ad's funding sources or the Idaho Department of Health and Welfare. Federal and state laws are subject to change at any moment. Therefore, readers are encouraged to research any changes in the legal requirements before using the information contained in this document. Revised: March 1998