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Narrative descriptions of SGD funding programs will be added on an
ongoing basis. Presently, narrative descriptions
are posted for Medicare
and Tricare. Also posted is information about insurers and
health plans with SGD
clinical criteria, and a database of insurers and plans that have
approved SGDs. 1. Medicare 3. Insurance and Health Benefits Plan Coverage of Speech Generating Devices and Database 4. Federal Employee Health Benefits Plan 5. Department of Veterans Affairs 10. Telecommunications Equipment Distribution Programs
Coming soon...
3. Insurance & Health Benefits Plan Coverage of Speech Generating Devices and Database 3.A. Insurance and Health Benefits Plan Coverage of Speech Generating Devices Introduction Speech Generating Devices (SGDs) are routinely
covered by all health-benefits funding programs in the United States. This includes Medicare, all Medicaid programs,
Tricare, the Veterans Administration, and more than 1,000 insurers and health
benefits plans. This coverage exists even though SGDs (and as a general matter,
other specific types of care or items of equipment) are only rarely identified
by name by these programs. Instead,
health benefits programs describe their scope of coverage by reference to broad
categories of care, examples of which include in-patient hospital care;
physicians’ services; speech-language pathology services; durable medical
equipment; and prosthetic devices. To determine what specific types of care and
equipment are subject to payment by these health-based funding programs, a
four-question “test” is applied. This 4
question test was first described in Fred C. v. Texas Health & Hum. Serv.
Comm’n, 988 F.Supp. 1032 (W.D.Tex. 1997), affirmed per curiam, 167 F.3d 537
(5th Cir. 1998)(applying test to Texas Medicaid); prior decision, 924 F.Supp. 724
(W.D.Tex. 1996), vacated and remanded per curiam, 117 F.3d 1416 (5th
Cir. 1997); 68 Fed. Reg. 55,634,55,635, 2003 WL 22213011 (F.R.)(Sept.
26,2003)(discussing same in the context of Medicare). It asks:
An obligation to pay for requested care or equipment
will arise if each of the first three of these questions is answered “yes,” and
the last question is answered “no.” SGDs have been covered by health insurers and health
benefits plans since they were introduced for sale in the mid-to-late 1970s. Beukelman, Yorkston & Smith, “Third-Party
Payer Response to Requests for Purchase of Communication Augmentation Systems:
A study of Washington State,” 1 AAC 5-10 (1985). SGDs have been “covered” [Question 2 above]
most often as items of “durable medical equipment” (DME) or as “prosthetic
devices,” two health benefits categories that are commonly included in
insurance policies and health benefits plans.
The health benefits programs that cover SGDs and their SGD coverage
designation are listed in Table 1 Speech Generating Devices are items of
durable medical equipment because they “fit” all the typical characteristics of
DME items and “meet” the most common definition of DME used by health-based funding
sources. Table
1: Health Benefits Funding Programs in the United States
Defining
Durable Medical Equipment (DME) There is no one source responsible to define or describe
what constitutes an item of durable medical equipment. Instead, each program is free to write its
own definition. In practice, however,
the Medicare program provides the template for DME definitions used by both
Medicaid programs and insurers. Medicare defines DME as follows: Durable
Medical Equipment is equipment … that: ·
Can withstand repeated use; ·
Is primarily and customarily used to
serve a medical purpose; ·
Generally is not useful to a person in
the absence of illness or injury; and ·
Is suitable for use in the home. 42
C.F.R. § 414.202 Medicare accepts that SGDs meet all of these
criteria. Medicare SGD coverage criteria
adopted in 2001 state SGDs are items of durable medical equipment. See
Medicare National Coverage Decision for Speech Generating Devices, 2001, posted
for review at this link;
Medicare Local Coverage Decision for Speech Generating Devices, 2001 (formerly
known as the Regional Medical Review Policy (RMRP)), posted for review at this link.
This Medicare guidance was written following an 18 month investigation about SGDs
by Medicare staff. A detailed
description of that review process and the information presented to Medicare
staff is posted for review at this link. SGDs
Can Withstand Repeated Use The applicable benefits category is Durable Medical Equipment. According to Medicare, an item that is durable is one that can “withstand
repeated use.” Some insurers use
different vocabulary to describe this characteristic of DME items: they state
that items of DME are not “consumable or disposable.” Regardless how it is phrased, this criterion
is not a significant hurdle for SGDs to pass. All augmentative and alternative communication
devices, including both speech generating devices (SGDs) and aids that do not
produce voice output, are durable;
are not disposable or consumable; and can
withstand repeated use. A
communication board or book is an AAC aid that does not produce speech
output. Typically, they are laminated
pages that are intended for repeated use and are accessed by pointing. Communication boards or books are not
“consumed” as an individual points to a word or picture. Nor is an SGD “consumed” or used up in any
way as a person constructs messages and the device says them as speech. SGDs do run on batteries, but these are
rechargeable and are designed to enable use day after day after day. SGDs are designed to be used on a daily basis
for a period of years. Nor can any of these aids and devices be described
as “disposable.” According to Webster’s New
Collegiate Dictionary, “disposable” is defined as “designed to be used once
and then thrown away.” This is not a
characteristic of any type of AAC aid, either speech generating devices or non-speech
generating devices. A communication book
or board, just described, is the simplest form of AAC aid. They clearly are not single use items. To the contrary, laminating the pages is intended
to protect them specifically to enable them to be used over and over, day after
day. Speech generating devices will, by definition,
produce speech output. They are battery
powered, electronic devices with the capacity to produce speech. They are intended to be used for years – not
used once and then thrown away. Nothing
could be farther from an accurate description of their intended use. That they range in price up to more than $
7,000 should be sufficient rebuttal to any suggestion that SGDs are
“disposable.” In addition to a dictionary definition of
“disposable,” Medicare expressly distinguishes items that are “durable” from
items that are “disposable.” An item is considered durable if it can withstand
repeated use, i.e., the type of item which could normally be rented. Medicare Hospital Manual, § 235.1A, posted for
review at this link. Medicare’s coverage of SGDs makes clear that it
concludes SGDs are “durable” and not “disposable.” Its SGD coverage criteria state plainly that
SGDs are an item of durable medical equipment. Medicare will pay for SGDs both as items to
be purchased, as well as items that are rented.
See Medicare SGD coverage
criteria; see also Medicare fee
schedule for purchase and rental of SGDs, posted for review at this link.
Medicare guidance also states: Medical supplies of an expendable nature such as
incontinent pads, lamb wool pads, catheters, ace bandages, elastic stockings,
surgical face masks, irrigating kits, sheets and pads are not considered
“durable” within the meaning of the definition [of durable medical equipment]….
Medicare Hospital Manual, § 235.1A, posted for
review at this link. Like the dictionary definition of “disposable,”
Medicare recognizes that disposable items are intended for one time or short
time use, and durable items are intended for repeated use over a long period of
time. SGDs are recognized by Medicare –
and by all other systems of benefits – as examples of durable items. SGDs are “durable” because they are designed and
built to last many years of daily use.
As a class, all SGDs have been designed as sturdy, durable communication
devices. Their cases are designed and
manufactured to withstand the often rough handling they typically are subjected
to when carried or when mounted to a wheelchair, as well as when they are
used. One SGD manufacturer calls one of
its models the “Toughbook.” They are so-named for
good reason: they are housed in “ruggedized” cases that are used in
military and industrial applications. In
general, our devices are used for the life of the patient. Letter dated March 13, 2002 to Lewis Golinker from
Ronald F. Creeley, Vice President, Marketing, Words Plus, Inc., posted for
review at this link. Another SGD manufacturer estimated the useful life
of its products is 3-5 years. Letter
dated January 23, 2002 to Lewis Golinker from Gregory Lesher, Ph.D., President,
Enkidu Research, posted for review at
this link. Prentke Romich, one of the first SGD manufacturers,
described one of its earlier devices, the Delta Talker, as follows: One of our most
successful devices is the Delta Talker, which was introduced in
the summer of 1995. . . . This device is very durable. Before the
device was shipped to the public, it went through a series of durability
tests, such as: dropping it from several locations, throwing it down a flight
of stairs, and standing on the device.
Occasionally, we have seen a
cracked outer case on the Delta Talker, however, this does not affect the
operation of the device. . . . We estimate the expected life span of this device
to be 7-10 years. Letter dated December 4, 2001 to Lewis Golinker from
Angie Neveadomi, Funding Coordinator, Prentke Romich Company, posted for review
at this link. The same report is available from Dynavox
Technologies, the leading manufacturer of SGDs and from Tobii, another of the
largest SGD manufacturers. Dynavox reported: To serve the needs of our clients, Dynavox SGDs are
built to be extremely durable. Durability – to be able to withstand the often rough
handling given to them by their users – and longevity – to be able to remain in
use for years – are both absolutely necessary.
Our products must be able to meet our clients’ needs day in and day out,
for years: whenever and wherever their communication needs arise. The durability of our products also can be
demonstrated by the fact that many of the original Dynavox models are still are
in use, in some cases, for the past 10 years.
In general the life expectancy for Dynavox devices tends to be 5-8
years. Letter January 17, 2002 to Lewis Golinker from
Michele Rimmel, Funding Supervisor, Dynavox Systems; see also Letter dated April 23, 2010 to Lewis Golinker from Deb
Jennings, Director of Funding, Tobii, ATI, posted for review at
this link. These SGD manufacturers are providing essentially
the same message. All of their SGDs are
durable; they are all able to withstand repeated use. Benefits and funding program decisions have addressed
this question and concluded SGDs are durable and able to withstand repeated
use. For example, a Medicare ALJ noted
that the beneficiary’s former SGD, a VOIS 130 (which is no longer made), had
been in continuous use for 8 years before it ceased to function, leading to a
request to Medicare that it be replaced. In re:
Kim D., Slip Op. at 4, No. 000-19-3751 (Social Security Admin. Office of
Hearings & Appeals July 28, 2000, posted for review at this link.
. In another Medicare ALJ decision, the judge noted that a Delta Talker was
durable because it ran on rechargeable batteries and was not a disposable
supply. In re:
Martin B., Slip op. at 3, No. 999-07-9279 (Social Security Admin. Office of
Hearings & Appeals November 29, 2001), posted for review at this link. Typically, that SGDs are “not disposable,” “not
consumable,” and are “durable,” because they
can “withstand repeated use,” is not a matter of controversy. SGDs
Are Primarily and Customarily Used to Serve a Medical Purpose The second Medicare DME criterion states that DME
items are “primarily and customarily used to serve a medical purpose.” As with the “durability” criterion, the text
used to describe this DME characteristic may vary among benefits and funding
programls. Some state that DME items
must serve as “treatment” or a “therapeutic” purpose instead of a “medical
purpose.” These words all share a common
meaning. We, however, must give the word “medical” its
ordinary sense, as referring more usually and broadly to the treatment, cure,
or alleviation of any health condition, including disability…. Blue v. Bonta,
99 Cal App.4th 980, 989, 121 Cal.Rptr.2d 483 (First District 2002). Just as the concepts of “treatment” and “medical” are
synonyms, so too is “therapeutic.”
According to the Stedman’s Medical Dictionary, the term
“therapeutic” means “related to treatment of disease,” which also is the
definition of “therapy.” Specifically, all SGDs are recommended, prescribed,
and used to implement a program of speech-language pathology (SLP) treatment
for severe communication impairment. The
generally accepted principle – established by both professional medical
literature and adopted as the coverage standard by systems of health benefits –
is that SGDs are medically necessary and appropriate treatment when an SLP
determines an individual cannot meet daily communication needs using natural
communication methods, such as oral speech or writing. The American Speech-Language-Hearing
Association (ASHA) has for approximately 3 decades formally recognized AAC
intervention, including use of an SGD, as a SLP treatment methodology and
within the scope of practice of speech-language pathologists. ASHA, “Position Statement on Non-Speech
Communication,” 23 Asha 577-581 (August 1981). This position has been renewed and updated
and it remains ASHA's current and official position. Am. Speech-Lang.-Hearing
Assoc., Scope of Practice in Speech-Language Pathology, at p. 7 (2007);
Am. Speech-Lang.-Hearing Assoc., Preferred Practice Patterns for the
Profession of Speech-Language Pathology: § 26 Augmentative and Alternative
Communication Assessment;” “§ 27 Augmentative and Alternative Communication
Intervention; §28 Prosthetic/Adaptive Device Assessment; §29 Prosthetic/Adaptive
Device Intervention, at pp. 75-88
(2004); Am. Speech-Lang.-Hearing Assoc., Roles and Responsibilities of
Speech-Language Pathologists with Respect to Augmentative and Alternative
Communication: Technical Report (2004); Am. Speech-Lang.-Hearing Assoc., Augmentative
and Alternative Communication: Knowledge and Skills for Service Delivery
(2002); Am. Speech-Lang.-Hearing Assoc., Scope of Practice in
Speech-Language Pathology, at pp. I- 28, 30 (2001); Am.
Speech-Lang.-Hearing Assoc., Preferred Practice Patterns for the Profession
of Speech-Language Pathology, at § 12.3 Augmentative and Alternative
Communication Assessment, § 15.2 Augmentative and Alternative Communication
System and/or Device Treatment/Orientation, at pp. I -141-42; 165-166 (1997);
Am. Speech-Lang.-Hearing Assoc., Preferred
Practice Patterns for Speech-Language Pathology, § 30.3 Augmentative and
Alternative Communication Assessment,; § 31.1 Augmentative and Alternative
Communication System Fitting/Orientation,” at pp. 61-62; 87-88 (1992); Am.
Speech-Lang.-Hearing Assoc., Augmentative and Alternative Communication:
Position Statement, 33 Asha (Suppl. 5), 8 (1991); Am.
Speech-Lang.-Hearing Assoc., Competencies for Speech-Language-Pathologists
Providing Services in Augmentative Communication, 31 Asha 107-110 (1989). AAC treatment
methodologies include unaided strategies, which rely on a person’s residual
speech ability, gesture or sign language; and aided strategies, which include
non-voice output aids, such as writing, communication boards, or notebooks; and
voice output aids, i.e., SGDs. In short,
SGDs are one form of AAC treatment. The treatment role of
SGDs, in general, is well documented in the professional medical literature and
in professional policy guidance written by the American Speech-Language-Hearing
Association. There are more than 40
years of professional literature and practice related to augmentative
communication interventions, including SGDs, as treatment for severe expressive
communication disabilities and to prevent the adverse effects associated with
an inability to speak or otherwise expressively communicate. Zangari, Lloyd
& Vicker, "Augmentative and Alternative Communication: An Historic
Perspective," 10 AAC 27-59 (1994); G. Vanderheiden and D. Yoder,
"Overview," in S. Blackstone, Ph.D., Ed. Augmentative &
Alternative Communication: An Introduction 10-13 (1986); see also
Hourcade, Pilotte, West and Parette, “A History of Augmentative and Alternative
Communication for Individuals with Severe and Profound Disabilities, 19 Focus
on Autism and Other Developmental Disabilities 235-244 (2004). The common goal of all treatment involving AAC
interventions including SGDs is to overcome or ameliorate the communication
limitations that preclude or interfere with the person's meaningful
participation in dairy activities. Beukelman & Mirenda, Augmentative and
Alternative Communication 104 (1992).
See also Beukelman, Garrett
& Yorkston, Augmentative Communication Strategies for Adults with Acute
or Chronic Medical Conditions 4
(Baltimore: Brookes Publ. 2007)(“The general definition for AAC used in most
legal, educational and funding activities is similar to the following: AAC is
needed by individuals with such complex communication limitations that they are
unable to meet their daily communication needs through natural speech (and/or
language).”); Medicare RMRP (now LCD) for Speech Generating Devices (2001),
posted for review at this link.;
Myers v. State of Mississippi, No. 3:94- CIV- 185 LN (S.D. Miss. June
23, 1995) (SGDs are “electronic and non‑electronic
devices that allow individuals to overcome, to the maximum extent possible,
communication limitations that interfere with their dairy activities.”).
Meaningful participation means effective and efficient communication of
messages in any form the person chooses.
National Joint Committee for the Communicative Needs of Persons with
Severe Disabilities, "Guidelines for Meeting the Communication Needs of
Persons with Severe Disabilities," 34 Asha
(Supp. 7) at 2‑3 (1992). The American Medical Association, American Academy
of Neurology, American Academy of Physical Medicine and Rehabilitation, and
American Academy of Pediatrics, all recognize the role of SGDs as medical
treatment for a range of severe communication impairments. The American Academy of Neurology stated: In general, the American Academy of Neurology
supports a policy that includes Augmentative and Alternative Communication
(AAC) devices to be covered … when incorporated into a speech language
pathology treatment plan. The treatment
plan which authorizes this coverage should … conclude[] the individual is
unable to meet communication needs arising in the course of daily activities
using natural communication methods. * * * * * The AAN believes that augmentative and alternative communication devices are a form of durable medical equipment which can be of great help to selected individuals with neurological disorders unable to communicate during the course of daily activities. They can be a successful form of treatment as part of a speech language therapy plan in carefully selected and evaluated individuals. Letter dated March 22, 2000 to Hugh Hill, M.D., from
Francis I. Kittredge, Jr., M.D., President, American Academy of Neurology,
posted for review at this link. AMA stated: The AMA agrees with the American Academy of
Neurology that these devices are medically necessary for severely
speech-impaired patients to meet the communication needs arising in the course
of their daily activities… Letter dated March 21, 2000 to Hugh Hill, M.D., from
J. Ratcliffe Anderson, Jr., M.D., Executive Vice President, American Medical
Association posted for review at this link. The AAPMR stated: the Academy strongly believes that augmentative and alternative communication (AAC) devices are medically necessary aids for communication.... * * * * * The Academy lends its full support for Medicare coverage of these devices for patients with severe communication impairments, such as dysarthria, apraxia and aphasia, regardless of the motor or neurological condition that gives rise to the communication impairment. * * * * * They are necessary to meet the communication needs
arising in daily activities. Letter dated March 23, 2000 to Hugh Hill, M.D., from
Ronald Henrichs, Executive Director, American Academy of Physical Medicine and
Rehabilitation posted for review at this link. Most recently, the American Academy of Pediatrics
stated: Many children and youth with special health care
needs can improve day-to-day functioning with the aid of assistive technology,
including alternative and augmentative technology.” L. Desch, D. Gaebler-Spira, and Council on Children with Disabilities, Special Report: Prescribing Assistive-Technology Systems: Focus on Children with Impaired Communication, 121 Pediatrics, 1271-1280 (June 2008). This documents is posted for review at this link. The general acceptance that SGDs serve a medical, therapeutic, or treatment purpose or role also extends to other federal agencies. For example, the United States Food and Drug Administration (FDA) is a regulatory, not a funding agency. The FDA is the federal agency responsible for classification of medical devices. It reached the conclusion that SGDs serve a medical purpose in 1983. At that time, the FDA created a classification called “powered communication systems,” which it defined as: An AC- or battery-powered device intended
for medical purposes that is used to transmit or receive
information. It is used by persons
unable to use normal communication methods because of physical impairment. . .
. 48 Fed. Reg. 53049 (November 23, 1983), codifying 21
C.F.R. § 890.3710(emphasis added). Another example is supplied by Medicare and
Medicaid. Not only are SGDs classified
as items of DME by both programs, both Medicare and Medicaid are required to offer covered services
consistent with “accepted medical
practice.” Congress expressly prohibits
Medicare from providing reimbursement for any item or service that is “not
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). Medicare guidance expressly
states the concept of “reasonable and necessary” limits coverage only to
“services or supplies that are needed for the diagnosis or treatment of your medical condition and meet accepted standards
of medical practice.” Medicare & You, 2011, at p. 129,
posted for review at this link.
Medicaid programs are required to make
determinations about coverage of items or services consistent with accepted
standards of medical practice. Detsel
v. Sullivan, 895 F.2d 58, 64 (2nd Cir. 1990). As to the conclusion that SGDs serve a medical,
therapeutic or treatment purpose, there is no evidence to the contrary, from
any source. A closer examination of
the “medical purpose” served by SGDs:
treatment for severe communication impairment, reveals that it is the same as
the medical purpose served by all other speech-language pathology treatment
methodologies. All SLP services treat
severe communication impairments by improving the individual’s ability to meet
daily communication needs. Peggy Locke,
the former president of the Communication Aid Manufacturers Association stated: The medical purposes served by the AAC devices and related products manufactured by CAMA member companies offer treatment to persons with severe expressive communication disabilities. The people who use and benefit from AAC devices have historically been those whose communication disabilities are so severe that improved expressive communication was believed to be impossible. But with AAC devices, they are able to get their needs met, live successfully in the community, lead active lifestyles, and be employed. Letter dated October 23, 1999 to Lewis Golinker from
Peggy Locke, President, Communication Aid Manufacturers Association. This letter was submitted to Medicare staff
as part of that program’s development of its current SGD coverage criteria, and
is posted for review at this link. Stated most simply, a person with no severe
communication impairment that precludes accomplishment of daily communication
needs using natural communication methods will never be assessed for, never be
appropriate for, never be recommended for, and never need or use an SGD. That an SGD is needed for no purpose other
than as treatment for severe communication impairment – a medical purpose – is
a conclusion easy to test: but for
(solely because of) ______________ the person would be able to
meet his or her daily communication needs using natural communication methods,
such as oral speech. Only one reason or “purpose” can fill the blank in
the preceding statement and make it true.
It is only because the person has a severe
communication impairment that an SLP assessment will be conducted, that
consideration will be given to various methods of SLP treatment, and that the
ultimate recommendation will be of an SGD as the most appropriate treatment
method. These general statements about SGDs serving a
“medical,” “therapeutic,” or “treatment” role or purpose are supplemented by a
large volume of professional literature that is addressed to specific speech
and language impairments, such as dysarthria, apraxia, aphasia, and aphonia, see e.g., L. Golinker, Esq., Ed., Formal Request for National Coverage
Decision for Augmentative and Alternative Communication Devices, Chapter 3 (1999)(describing
the professional literature related to SGD use as effective treatment for
dysarthria, apraxia and aphasia). The Formal Request was prepared by the
nation’s leading AAC and SGD clinicians, educators and researchers and was
submitted to Medicare staff to aid their development of Medicare SGD coverage
criteria. The AMA described this section
of the Formal Request “an excellent
summary of the strong clinical evidence for the efficacy and effectiveness of
AAC devices for the treatment of dysarthria, apraxia and aphasia.” Letter dated March 21, 2000 to Hugh Hill,
M.D., from E. Ratcliffe Anderson, Jr., M.D., Executive Vice President and CEO,
American Medical Association, posted for review at this link. Medicare staff were the first to acknowledge
the ability of SGDs to be effective for people with aphonia. This observation subsequently was confirmed
by ASHA. See Memorandum dated June 27, 2000 to Lewis Golinker from Steven
White, Ph.D., American Speech-Language-Hearing Association, posted for review
at this link.
There also is
professional literature describing the effectiveness of SGDs as treatment for specific
conditions, such as ALS and autism. SGD use is recognized by the American
Academy of Neurology as the standard of care for treatment of the communication
impairments associated with ALS. See 48 Amyotrophic Lateral Sclerosis
Standard of Care Consensus Conference, 48 J. Neurology Supp. 4
(1997). SGD use also is recognized as
effective by evidence based peer reviewed professional literature as effective
treatment to improve the functional communication of people with autism. See
generally, Letter dated June 15, 2011 to Lewis Golinker from Pamela Mathy,
Ph.D., Kennedy Krieger Institute, posted for review at this link; see
also Ganz, et al, “A Meta Analysis of Single Case Research Studies on Aided
Augmentative and Alternative Communication Systems with Individuals with Autism
Spectrum Disorders,” J. Autism & Developmental Disorders (Published
on-line March 5, 2011); van der Meer & Rispoli, “Communication Intervention
Involving Speech-Generating Devices for Children with Autism: A Review of the
Literature,” 13 Developmental Neurorehabilitation, 294-306 (2010). Yet another way to look at the medical purpose
served by SGDs is to review the items to which SGDs have been compared. The most common comparison is between SGDs
and power wheelchairs. The U.S. Food and Drug Administration, which is
responsible for classification of medical devices, places SGDs and power
wheelchairs in the same category of medical devices. See
21 C.F.R. § 890.3710. The FDA recognized
that both devices provide their benefits through the same mechanism: both permit
an individual to accomplish a specific functional intent, i.e., to move from place to place, or to speak, by by-passing the body parts necessary for
the normal accomplishment of that intent, but which are not working due to
disability. For mobility, the brain
generates an intent to move from point A to point B; it then generates motor
instructions for the muscles of the legs to accomplish that intent; and it
sends those instructions along the nerves to the muscles to implement that
intent. If, due to disability, those
instructions cannot be carried out in the normal fashion, the brain can by-pass the non-functioning body parts
and re-direct the instructions to the arms and hands, which can propel a manual
wheelchair or control a power wheelchair through a joystick. Thus, by by-
passing the non-functional body parts
and with the aid of an item of durable medical equipment, the original
intent can be accomplished. The same by-pass
exists for SGDs. Ordinarily, speech is
the outcome of a series of linked physiological steps. The “communication chain,” a metaphor for how
the body produces expressive communication (and extends to the steps related to
hearing and receptive communication), was coined by Crystal & Varley, in
their text Introduction to Language
Pathology, now in its fourth edition.
This metaphor is almost 100 years old. (The origin of the communication
chain metaphor can be traced to F. deSaussure Course in General Linguistics (1916).
It also is used in C. Shannon & W. Weaver, The Mathematical Theory of
Communication (1949); P. Denes and E. Pinson, The Speech Chain: the
Physics and Biology of Spoken Language (1963) and most recently D. Crystal
& R. Varley, Introduction to Language Pathology (4th Ed.)(Baltimore: Brookes Publ. Co.1999)). The “communication chain” states that expressive
communication results from a series of 5 linked steps that must work properly
to be successful. These steps include: the brain generates a thought; it is
then linguistically encoded into speech; motor instructions are generated for
the speech organs; the nerves then carry those instructions to the speech
organs; and the speech organs execute the motor instructions. Viewed graphically, the communication chain
can be represented as follows:
Disability can affect any of these “links” or steps
in the communication chain. ALS, for
example, directly interferes with the fourth link of the chain: it causes the
loss of the motor neurons that carry instructions from the brain to the speech
organs. And, because those body parts
are no longer receiving motor instructions, they cease to function and atrophy,
making them unable to function. When there is a break in the communication chain,
items of durable medical equipment, such as an SGD, are available to provide a
by-pass around the non-functioning body part or link and enable the person to
perform the speech task. For example, a
person with ALS who still has the use of her hands will by-pass the
non-functioning motor neurons to the speech organs and instead re-direct the
motor instructions for speech to the hands, which will direct an SGD to create
and speak a message. Peggy Locke, the former President of the
Communication Aid Manufacturers Association, explained this to Medicare staff
as follows: AAC devices allow their users to achieve [their
communication] goals by providing a functional substitute for body organs and
structures that are necessary for the production of speech but which are
non-functioning or mal-functioning due to illness, injury, disease or
condition. Another way to describe the
purpose of AAC devices is as a functional by-pass of these non- or
mal-functioning body structures, i.e.,
they allow the AAC device user to express a thought (message) as speech, by
by-passing the nerves, muscles, and organs of speech which, due to impairment,
make natural speech ineffective. The AAC
device is the by-pass. Viewed in this
way, AAC devices provide the same benefits and serve the same functional
purposes as power wheelchairs. . . . Letter dated October 23, 1999 to Lewis Golinker from
Peggy Locke, President, Communication Aid Manufacturers Association. (This letter was submitted to Medicare as
part of the Formal Request), posted
for review at this link. This “functional equivalence” between wheelchairs
and SGDs has long been recognized by decision makers for health benefits and
funding programs. For example, this fact
was acknowledged in decisions by Medicaid programs in the late 1970s and 1980s
and in Medicare decisions in the 1990s. See In
re: Donald S., Slip Op. at 3-4, No. 000-89-3072 (Social Security Admin.
Office of Hrgs & Appeals October 1, 1999); In re: Anonymous-I (Minn. Dept. Of Human Services April 30, 1984); In re: Anonymous-II (Minn. Dept. Of
Human Services April 30, 1984); In re:
John P., No. 7454-82 (NJ Office of Admin. Law Dec. 8, 1982); In re: Kevin K., No. 2938-81 (NJ Office
of Admin. Law Sept 1, 1981); In re:
Anthony M., No. 1360-79 (NJ Office of Admin. Law July 17, 1979). All of the foregoing supports the conclusion that
SGDs are used for “medical,” “therapeutic” or “treatment” purposes and are
medically appropriate and effective treatment for individuals with severe
communication impairments. No evidence
exists to question the role or effectiveness of SGDs as treatment for severe
communication impairment. SGDs
Generally Are Not Useful To A Person In The Absence Of Illness Or Injury The third Medicare DME criterion states that a DME
item “generally is not useful to a person in the absence of illness or
injury.” That SGDs are not useful to and are not used by
people whose natural speech is sufficient to engage in functional communication
already has been discussed. No person
who is able to speak using his or her natural voice will have any reason to
consider an SGD. Among the obvious
reasons for this conclusion is that the rate at which people can produce speech
is far faster and more flexible than the rate at which they can produce a
message by any other means. See D.
Beukelman and P. Mirenda, Augmentative and Alternative Communication 73
(2nd Ed. 1998)(discussing rate of speech production in natural
speech and with SGDs). Even to the extent a person has a communication
impairment, consideration of SGD needs will occur in the course of an SLP
evaluation only after it is determined that no other SLP intervention or
treatment will be sufficient to enable the person to meet daily communication
needs. See Formal Request at Chapter 3, posted for review at this link
(scroll to bottom of the page). In addition, for more than a decade, SGD
manufacturers have been producing devices that are “Medicare-compliant,” i.e., that conform to the Medicare SGD
coverage guidance and therefore will be covered and reimbursed by
Medicare. Medicare guidance states that
only devices that are “dedicated speech generating devices, used solely by the
individual who has a severe speech impairment,” will be covered. Medicare National Coverage Decision for
Speech Generating Devices, (2001), posted for review at this link. Medicare recognizes and accepts that some
SGDs will be computer based or PDA-based, but will cover and provide
reimbursement only for those devices that “have been modified to run only AAC
software.” Letter dated May 4, 2001 to Lewis Golinker from Thomas Hoyer, Health
Care Financing Administration, posted for review at this link. Dedicated SGDs, whether purpose built or computer
based, will be of no interest to and of no use to anyone who does not have a
severe communication impairment, which is exactly why Medicare imposed these
limitations. SGDs
Are Suitable For Use In The Home The fourth and final characteristic of an item of
DME as stated in the Medicare definition is that it is “suitable for use in the
home.” Another phrasing for this
criterion states that DME items must be “designed for outpatient use.” All SGDs meet this criterion. SGDs clearly are
suitable for use in the home, as well as anywhere else the person with a severe
communication impairment happens to be.
SGDs are intended to provide a “voice” to people who are unable to meet
daily communication needs using speech, or other natural means of
communication, such as sign language or writing. For this reason, SGDs are intended to come
and go with the person and be used wherever and whenever a communication need
arises. This includes the person’s home
and everywhere else in the community the person goes and wants to speak. Common among SGDs is that they were expressly designed
to be portable, either to be carried by the person or to be mounted to a
wheelchair. The phrase “designed for outpatient use” is intended
to distinguish (and exclude) equipment that is most often used by individuals
who are in a hospital or residents of some form of long-term care facility or
institution. Although SGDs can and are used by individuals in these settings, these uses just prove
the prior point that SGDs are intended to be used and are suitable for use in
any setting in which the person has something to say. There is nothing about SGDs that reflect
“design” for use in these settings, and hospitals or long-term care facilities
and institutions are not common funding sources for SGDs. Rather, SGDs are most commonly provided to individuals
who reside in their own homes or their family homes. There is no basis to conclude that SGDs are
hospital-based or institutional equipment.
That Medicare covers SGDs as DME provides strong evidence to support
this conclusion. DME is an element of
Medicare Part B; hospital benefits are provided through Medicare Part A. Moreover, Medicare does not provide DME
items for residents of institutions. 42
U.S.C. § 1395x(n)(Medicare items of DME are not covered for individuals who
reside in hospitals or nursing facilities.) Regardless where their users reside, SGDs have been
designed to enable their users to meet daily communication needs in all
settings in which those needs will arise.
They are intended to be used in any and every place where the user has the
desire to speak. Overwhelmingly, they
are provided to individuals who live in their own home or in their family’s
home, as compared to an institution. Conclusion More than 10 years ago, the American Academy of
Physical Medicine & Rehabilitation stated: “Clearly there is no substitute
for these devices [SGDs] for individuals with disabilities who require them….” Letter dated March 23, 2000 to Hugh Hill,
M.D., from Ronald Henrichs, Executive Director, American Academy of Physical
Medicine and Rehabilitation, posted for review at this link. Because of their unique role and importance:
“Language is the principal skill distinguishing human beings from other
animals. The inability to speak can be
the single most devastating aspect of any handicap, Fred C. v. Texas Health & Hum. Serv.
Comm’n, 988 F.Supp. 1032, 1034 (W.D.Tex. 1997), affirmed per curiam, 167 F.3d 537 (5th Cir. 1998), it is
essential that SGDs are recognized by all systems of health benefits as routinely
covered items of equipment. As explained above, SGDs “meet” or “fit within” the
definitions of Durable Medical Equipment stated most frequently health benefits
and funding programs. The Medicare DME
definition is the most common definition used by these programs which includes
the majority of Medicaid programs, and most insurers and health plans. United Healthcare, for example, one of the
nation’s largest insurers and a frequent claims and appeals fiduciary for
employer sponsored health benefits plans, approved dozens if not hundreds of
SGDs because they met the plans’ DME definitions which were substantively
identical to the Medicare DME definition.
As to all of the information presented here, there
is no objective basis whatsoever to support a conclusion to the contrary. 3.B. Insurance and Health Benefits Plans Database In 2003, the ATLC asked 5 SGD
manufacturers [Assistive Technology; Dynavox; Enkidu; Prenke Romich;
Words Plus] to produce a list of the insurance companies and health
benefits plans that had approved and paid for their products.
The manufacturers were asked to generate this list any way available
to them, e.g., through computerized customer records or hand review
of their files – whatever procedure they were willing to follow.
Though this fact is certainly not
controlling, the court does find it instructive that forty other
Medicaid programs do pay for AAC devices, i.e., finds them medically
necessary [reference omitted]... Moreover, over 200 health
insurance providers pay for AAC devices. [reference omitted].
Both
insurers and health plans have legal duties to investigate the facts
and the proper interpretation of key criteria related to a claim for
benefits. For policies, the duty to investigate will arise
under state common-law, state statute or regulation, or it may be an
express provision of the policy.
See 14
Couch on Insurance (3d Ed) § 198:27
(2005). For health benefits plans, the duty to investigate is
a central element of a plan administrator’s fiduciary duty to act as
would a “prudent person” under the circumstances. 29 U.S.C. §
1104(a)(1)(B). A leading treatise on health benefits plans
describes this duty as follows: Prudence focuses on the
process that the
fiduciary undertakes in reaching a decision. That is, prudence
is a test of conduct and procedure, not results. . . . [A]
fiduciary’s duty to investigate is a key facet of prudence . . . .
Jorden, Phlepsen, & Goldberg, ERISA
Litigation (2d Ed.) § 3.03[A], at p. 3-58-59 (2004). Ø the legal rule that policy or plan vocabulary must be given reasonable or non-arbitrary and capricious interpretations; A general rule of insurance interpretation is that when terms are subject to multiple possible interpretations, i.e., they are “ambiguous.” See generally B. Ostrager & T. Newman, Handbook of Insurance Coverage Disputes, § 1.02 at p. 9 (9th Ed 1998)(“An ambiguity exists when a word or phrase is reasonably susceptible to more than one construction.”). A second general rule of insurance policy interpretation is that any reasonable interpretation of the policy language that supports coverage will be controlling of the outcome. The leading treatise on insurance law states: The words, “the contract is to be construed against the insurer” comprise the most familiar expression in the reports of insurance cases. It purports to be an application of the rule contra proferentem.[footnote omitted] If an insurer uses language that is uncertain, any reasonable doubt will be resolved against it; if the doubt relates to extent or fact of coverage, whether as to peril insured against, the amount of liability, or the person or persons protected, the language will be understood in its most inclusive sense, for the insured's benefit.2 Couch on Insurance (3d Ed.), § 22:14 Ø the legal conclusion that different interpretations of the same facts at different times is “capricious.” If no objective basis for the difference in conclusion exists, the decision on a current request will represent merely an arbitrary or capricious decision, based on personal opinion of the decision makers. In general, this is a paradigm of capricious action. See Lefrak Forest Hills Corp. v. Galvin, 40 A.D.2d 211, 388 N.Y.S.2d 932,937 (2d Dept. 1972) affirmed, 32 N.Y.2d 796, 345 N.Y.S.2d 547, cert. denied, 414 U.S. 1004 (1973); Mayer v. Wing, 922 F.Supp. 902, 911(S.D.N.Y. 1996). Knowledge of
past SGD approvals, plus these legal rules help current SGD funding
requests in the following way: Ø
Whenever a funding
request is received, the insurer and plan has a duty to investigate
to see if it should be approved. A complete
investigation must be done to honor this obligation.
Specifically, the insurer or plan should be searching to see if an
SGD “fits” within the language of this policy or plan.
This determination should be based on how the policy or plan terms
have been interpreted before, if this is knowable, and not just on
the basis of personal opinion of the insurer or plan reviewer. Ø
Where to look?
Why not start with the earlier decisions approving SGDs made by the
same insurer or plan? If the terms are the same, then the
result should be the same: approve the device. Ø
For insurers, its
own interpretation of the same terms will constitute a “reasonable
interpretation” of those terms, and as a matter of law, a reasonable
interpretation supporting coverage must control. For a plan,
looking at the same terms on two separate days and reaching opposite
conclusions is the definition of arbitrary and capricious action. In other
words, the data base supplies a starting point for an insurer or
plan to investigate current SGD funding requests. In particular, to
justify a denial, the decision maker should be required to explain
how each earlier favorable decision is based on a scope of
coverage different from the current policy or plan. Moreover,
the decision maker should be required to explain not only that there
is some difference in scope of coverage, but that the difference is
so significant as to justify a “yes” to the earlier request, but
that a “no” is appropriate now. Procedurally,
insurers and plans are unlikely to engage in this type of factual
investigation when they make their initial determination. For
this reason, every denial issued by an insurer or plan listed
in the data base should be appealed, and specific reference to the
existence of earlier SGD approvals should be noted. If the
insurer or plan issues a new decision and again fails to explain how
these earlier approvals are based on substantially different
coverage criteria, this denial should be appealed again, and again,
until it is set aside. In short, if the insurer or plan is
listed on the data base, absent specific reference to and
explanation of past decision making, a denial decision is fatally
flawed. No insurer or
plan can say these earlier decisions are not important. They
may point to their freedom to use unique language in every policy or
plan. That it true, but what matters is what these policy or
plan documents did say, not what they could say. Only
by looking at past policies and plan documents can it be determined
whether the same or different language was used. And, to the
extent the language used is the same, how will insurers or plans
argue that their own prior interpretations are not reasonable, or
that contradicting them now is not arbitrary? Together,
facts about earlier SGD approvals and these legal rules create a
presumption that a current SGD funding request or appeal should be
approved. The insurer or plan can rebut this presumption, but
only by producing information to show there is a significant
difference between the way the benefits were described in the
current policy or plan and those earlier cases. Also, the
greater the number of earlier SGD approvals, the stronger the
presumption applicable to the current claim. The greater the
number of earlier approvals, the greater the likelihood that one or
more were based on the same coverage vocabulary as is used in the
current claim. Because the insurer or plan already interpreted
that vocabulary to support coverage, to not do so again, is not
reasonable and instead, is arbitrary and capricious. Armed
with these data, what is past, is prologue. The
Insurance & Health Plan SGD Approval Database
The database
is a table with two columns. One lists the names of insurers
and health plans; the other identifies the number of SGD approvals
reported by the manufacturers. How to Use the Insurance &
Health Plan SGD Approvals Database
SLPs,
families, funding staff of SGD manufacturers and suppliers, funding
staff at government programs such as Medicaid, and advocates all
should examine the data base. Whenever a client has insurance
or a health benefits plan as the primary funding source, the
presence of an insurer’s or plan’s name on the data base means it
has paid for an SGD before, and a presumption should be created that
it should approve the current request. If the insurer or plan
already has said no to funding request, its presence on the data
base provides grounds for appeal. Insurers and
health benefits plans are listed alphabetically. The names of
the insurers are printed as they were
reported by the manufacturers. Search to match the current
insurer or plan against the database list. Care should be
taken to consider all common spelling variations, and common
variations on the names of the insurers. NOTE:
Insurers often act as plan administrators. Whenever an insurer
has this role, the Database should be searched for the insurer as
well as for the plan. If a match is
found, the next step is to note how many SGD approvals are reported. For any one
listing, this task is easy: the number printed to the right of the
insurer or plan name represents the number of approvals reported.
However, some companies are listed multiple times, which may only
reflect differences in the way the manufacturers reported the names
to the ATLC. For example, there is little doubt that “
Example:
NOTE:
whenever earlier approvals are reported, the number should be
described in correspondence as “at least ___ SGD approvals have been
issued,” based on the incomplete nature of the database.
Once a match
is found, the insurer or plan should be put on notice, in writing,
that this information is known, and that to justify denial of the
current SGD funding request, the insurer or plan will have to
investigate and explain the difference between the current request
and every previous SGD approval. One way to
insist that this investigation be conducted is to request the
documents from those earlier decisions. Producing these
documents will permit an independent review. Individuals who
are insured, or who are health plan participants, should demand
in writing that the insurer or plan produce all records
related to earlier SGD approvals. In addition, these requests should
seek production of the description of the scope of benefits,
including the definition or characteristics of durable medical
equipment in the policy or plan. Sample
request for records from individual insured by policy: “Produce all
records describing the scope of benefits, including the definition
of, or characteristics of durable medical equipment, in all policies
issued by ___________[name of insurer] and for all health benefits
plans administered by __________ [name of insurer] in which an SGD
has been approved. Information in the Insurer & Health Plan
SGD Approvals Database, posted at
www.aacfundinghelp.com reveals that at least ___ earlier SGD
approvals have been issued by ________ [name of insurer]. As part of
your duty to conduct a good faith investigation of the facts
surrounding my claim for SGD funding, please produce these data
within 30 days of the date of this letter. If you fail to
produce the requested information, you must explain in writing the
steps taken to conduct a reasonable search. You are on notice that
the SGD manufacturers who supplied data to the Database can identify
each individual for whom an earlier SGD approval was issued, and
from that information, all relevant policy and plan terms can be
located. Once located, they can be compared against the
comparable terms of my policy. If the vocabulary used to
describe the scope of benefits is the same, the result must be the
same – the approval of my requested SGD. Insurers are
obligated to accept any reasonable interpretation supporting
coverage. Certainly your own earlier interpretations of the
same terms or phrases will be deemed reasonable. If you claim
the vocabulary describing the scope of benefits is different, your
written report should explain why the differences are so significant
that a different outcome is justified. In lieu of
conducting the search and analysis stated above, or producing the
records to permit independent analysis of the relevant terms, you
may approve the requested SGD.” Sample
paragraph for participant in a health benefits plan or where an
insurance company serves as plan administrator: “Pursuant to
29 USC § 1104, and 29 CFR §§ 2560.503-1(b)(5); (j)(3); & (m)(8),
within 30 calendar days of the date of this letter, produce, without
charge, all records describing the scope of benefits, including the
definition of, or characteristics of durable medical equipment, in
all policies issued by ___________[name of plan or of insurer acting
as plan administrator] and for all health benefits plans
administered by __________ [name of plan or of insurer acting as
plan administrator] in which an SGD has been approved.
Information in the Insurer & Health Plan SGD Approvals Database,
posted at
www.aacfundinghelp.com reveals that at least ___ earlier SGD
approvals have been issued by ________ [name of plan or of insurer
acting as plan administrator]. As part of your fiduciary duty, you must conduct a complete investigation of the facts surrounding my claim for SGD funding. You are on notice that the SGD manufacturers who supplied data to the Database can identify each individual for whom an earlier SGD approval was issued, and from that information, all relevant policy and plan terms can be located. Once located, they can be compared against the comparable terms of my plan. If the vocabulary is the same, the result must be the same – the approval of my requested SGD. Different interpretations of the same terms on different days is arbitrary and a violation of ERISA. Even if the vocabulary is different, you must explain why the differences are so significant that a different outcome is justified. In lieu of
conducting the search and analysis stated above, or producing the
records to permit independent analysis of the relevant terms, you
may approve the requested SGD.” Go to Insurer and Health Plan SGD Database How to use the Insurer & Health Plan SGD Approvals Database
4. Federal Employee Health Benefits Plan Coming soon...
5. Department of Veterans Affairs Coming soon...
Tricare Coverage of AAC Devices The Tricare program, formerly known as CHAMPUS, is a publicly funded health benefits program established for dependents of active duty military personnel and military retirees and their dependents. The Tricare program has covered AAC devices for many years. Until the end of 2001, however, Tricare/CHAMPUS AAC device coverage had been limited to the dependents of active duty military personnel. The military retirees and their dependents were not able to get Tricare/CHAMPUS funded AAC devices. This coverage limitation has now
been eliminated. On December 28, 2001, President Bush signed the FY
2002 military reauthorization bill, which includes Tricare reforms.
In one of those reform provisions, Congress authorizes Tricare to
cover AAC devices as a prosthetic device. Prosthetic devices are a Tricare benefit that is available to all enrollees. Specifically, Pub. L. No. 107-107, Section 702(2) (2001), amends the Tricare scope of prosthetic device coverage. 10 U.S.C. Section 1077(a)(15). The statutory amendment states, simply and clearly: An augmentative communication device may be provided as a voice prosthesis under subsection (a)(15). After this statutory change was enacted, advocates sought to persuade Tricare administrators to adopt SGD coverage criteria as soon as possible. Letter dated March 20, 2002 to Peter Thomas, Esq., from Lewis Golinker (describing proposal to Tricare to adopt Medicare SGD Coverage Criteria); Letter dated April 17, 2003 to Ms. Ann Fazzini; Letter dated June 13, 2003 to Tricare Management Authority. Tricare's SGD coverage criteria mirror the Medicare national coverage decision for SGDs. These criteria became effective on April 1, 2005. Tricare Policy Manual Table of Contents (TPO2) and SGD Coverage Policy (TP02 Chapter 7); Tricare Policy Manual, Chapter 7, Section 23.1. For an unknown reason, Tricare suspended these criteria during the summer of 2005 and then made them effective again on September 1, 2005. Change 26 (June 13, 2005) from Office of the Assistant Secretary of Defense, Health Affairs. These criteria were not changed in any way and they remain in effect today.
Coming soon...
Coming soon...
Coming soon...
10. Telecommunication Equipment Distribution Programs
Coming soon...
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