CMS Rescinds Controversial Power Wheelchair Clarification, But Issues Remain
After a campaign of letters, emails, phone calls, newspaper and television reports, and personal testimony in open-door forums, the Centers for Medicare and Medicaid Services (CMS) seemed to get the message that the December 9, 2003, clarification of its Medicare power wheelchair coverage policy had created such confusion that qualified beneficiaries were not receiving the powered mobility aids they needed. Accordingly, on March 18, it sent a memo to congressional members and staff saying it would rescind the clarification and, on March 31, it followed up with an open-door meeting.

“I particularly want to thank the people who have either called me directly, written me directly, or emailed me directly,” said Tim Hill, director of CMS’s Office of Financial Management, in the open-door meeting. “It is tremendously valuable to me to hear directly from people, and the feedback I have gotten from individual providers across the country has done as much as or more than any other dialogue we have done here in terms of understanding some of the issues and themes with a bit more clarity.”

In the meeting, Kim Brand, the acting director of CMS’ Program Integrity Group, and John Warren, of her staff, outlined primary themes they had drawn from all the comments they had received. These included the need to clarify that Medicare is legally not empowered to cover products for use outside the home—even though there may be patient benefits for doing so—and that the power wheelchair coverage criteria clarification article issued in December was in no way intended to be a change in CMS’ medical coverage policy for power wheelchairs.

“Under the long-standing CMS national policy that dates back to 1985, to be eligible for a power wheelchair, the beneficiary must be nonambulatory—that is, bed or chair confined—must need the power wheelchair for use in the home—as required by the statute—and must not have the upper body strength to use a manual wheelchair,” Brand said. “This is not a matter of counting steps.”

However, Brand and the other CMS officials in the meeting were reluctant to offer any more specific guidance as to what defines “bed or chair confined” other than saying it was not about the number of steps a person could walk. Doing so, they reasoned, would remove flexibility from the system, which is key because each patient’s case is unique.

“I know that many of you have been asking us and wanting us to give you a bright line rule on this, and unfortunately there is no bright line that we can give,” Brand said.

This left some participants with as many questions as they had before the meeting.

“I think it was a positive step that CMS held the meeting and is continuing the dialogue with the industry, but there really was no clarification of the policy,” said Seth Johnson, director of public policy for the American Association for Homecare.

CMS officials did say that the certificate of medical necessity would remain sufficient to file a claim for a power wheelchair, unless the DME Regional Carriers asked for, in writing, additional documentation and that, under the Medicare Prescription Drug, Improvement, and Modernization Act, it would eventually look into using accreditation criteria to reduce the likelihood of power wheelchair fraud without penalizing honest—and, in theory, accredited—providers.

For more details on this story, please see our special report starting on page 26.

Tom Scully

Fight Is Far From Over, Scully Warns AAHomecare Leadership
In his presentation at the American Association for Homecare’s February Leadership Conference in Rancho Bernardo, Calif, AAHomecare consultant and former Centers for Medicare and Medicaid Services (CMS) Director Tom Scully warned the industry that even though it was highly unlikely that Congress would take legislative action on any home health care issues related to last year’s Medicare Prescription Drug, Improvement, and Modernization Act, this was no time for the industry to rest on its laurels. Much is likely to happen on a policy level as CMS begins to implement the provisions in the new Medicare law, and congressional contacts could help the industry exert pressure on CMS by writing letters to and calling CMS officials.

In addition, with growing pressure on Congress to bring the soaring budget deficit under control, additional Medicare and Medicaid cuts were not out of the question, Scully warned, and he advised the industry to not let up on its efforts to build relationships with elected officials and CMS staff.

Kay Cox

“In this environment, having someone with Scully’s name recognition working with AAHomecare is all the more important,” says Kay Cox, AAHomecare’s president and CEO. “Tom Scully is truly a marquee player in Washington, and he brings access influence and credibility to all of AAHomecare’s issues this session,” she explains. “Tom will also play a vital role in raising AAHomecare’s visibility with both Democrats and Republicans, and his efforts will elevate our position as the industry fights for progress with Congress, the US Department of Health and Human Services, the White House, and any other group that we need to focus our efforts on.”

The next AAHomecare meeting will be its legislative conference, which will be held at the Loews L’Enfant Plaza hotel in Washington, DC, on June 7-9. To obtain details about attending, visit AAHomecare’s Web site at www.aahomecare.org or call the association at (703) 836-6263.

Coalition Supports Rehab Exemption From Competitive Bidding
The first of three recently released position papers from the National Coalition for Assistive and Rehab Technology (NCART) calls for Congress and the Centers for Medicare and Medicaid Services to exempt rehabilitation technology products and services from national competitive bidding.

NCART, based in Washington, DC, says the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 gives the US Department of Health and Human Services Secretary the authority to exempt certain products when competitive acquisition “is not likely to result in significant savings.” The act also states that in implementing competitive acquisition authority, “the Secretary may consider the clinical efficiency and value of specific items within codes, including whether some items have a greater therapeutic advantage to individuals.”

“NCART feels the products and services provided by suppliers of high-tech rehab and assistive technology are exactly what Congress had in mind when drafting the ‘therapeutic advantage’ provision,” reads the position paper.

In the second position paper, NCART describes its support of better-defined powered wheelchair codes, more appropriate clinical indicators, more precise coverage criteria, and equitable reimbursement. The third delineates NCART’s stance on state-level consumer protection legislation addressing the provision of seating and wheeled mobility services. NCART also has compiled a legislative language template to assist state associations and local rehabilitation technology suppliers in crafting appropriate language for their own letters to policy makers.

In addition, NCART released its State Medicaid Advocacy Support Program Plan on its Web site, www.ncart.us. By May 1, NCART intends to serve as the compiler and disseminator of resources for state leaders advocating for the provision of rehab and assistive technology.

Health Law Center Seeks to Form NSC Task Force
An increase in activity by the National Supplier Clearinghouse (NSC) in the past 6 months has created dire problems for many honest home health care providers, says Neil B. Caesar, president of the Health Law Center, Greenville, SC.

According to Caesar, the NSC is revoking the supplier numbers of providers across the country for often relatively minor violations of unclear and inconsistently enforced regulations during surprise inspections. Furthermore, once the NSC has revoked a number, it has become very difficult to get that number turned back on because, Caesar says, the NSC is not reviewing documents submitted on a timely basis, is failing to respond to inquiries, is refusing to grant hearing rights to suppliers who request that the NSC reconsider the revocation, is only allowing suppliers 60 days to appeal a revocation, and is refusing to schedule hearings within 1 week of an appeal request, as its own regulations require.

“If you are not perfect during the inspection, good luck to you,” Caesar says.

Concerned about the drastic increase in cases like these among his own clients, Caesar is seeking input from manufacturers, provider groups, trade groups, and state associations. He hopes to find out how many providers may have been affected by the NSC’s actions and how willing the industry is to push for a moratorium on the revocations until NSC can clarify the regulations that are leading to the revocations and provide a timely appeals process. In addition, Caesar would like to see a mechanism for pursuing compensation for companies that have been hurt by an unfair loss of their supplier numbers.

“This is probably not a case of bad actors at the NSC,” Caesar says. “They are simply overwhelmed.”

He urges providers and other industry players with information about this issue and interest in joining a task force to contact the Health Law Center by email at info@healthlawcenter.com.

Kerry Pledges to Support Americans With Disabilities
Presidential hopeful Senator John Kerry (D-Mass) says he has a solution for restoring Medicare. If elected, Kerry plans to implement a four-step plan during his first 100 days in office aimed primarily at ensuring uninsured seniors have access to lower-priced medications. The Democratic nominee’s 2004 campaign Web site also says he will protect and strengthen Medicaid, fully implement the Olmstead Decision and fund the Individuals with Disabilities Education Act, and enhance Medicare, part of which includes “modernizing Medicare benefits” to include DME for Americans with disabilities.

“Medicare should cover the devices, supplies, and services that are both reasonable and medically necessary to assist a beneficiary to gain, improve, or sustain their health and independence in their home, community, or competitive employment setting,” reads Kerry’s Web site.

In addition, Kerry’s campaign Web site includes an Americans With Disabilities Blog—or Web log—where site visitors can post messages and discuss the issues.

The Web site, however, does not include details on how Kerry plans to fund his efforts, and his press office did not respond to inquiries about details of his plan.

Kerry’s Medicare restoration and enhancement agenda also faces the grave projection an anonymous source gave to The Associated Press in March. The unnamed source said that, sans program changes, Medicare will run out of money by 2019, 7 years earlier than previously predicted. The source blamed the program’s imminent demise in part on the new prescription drug benefit offered by the recently passed Medicare Prescription Drug, Improvement, and Modernization Act of 2003.

Medtrade Spring keynote speaker Bruce Vladeck, former administrator of the agency that is now the Centers for Medicare and Medicaid Services, predicted similar doom for the federally funded health care program for seniors. He told Medtrade Spring attendees that he anticipates the HME market will double as early as 2010, further straining the Medicare program.

Kerry announced his plan for Americans with disabilities during a nationwide conference call in January.

“As president, you have the privilege and obligation to make choices,” Kerry said. “In the first 100 days of my administration, we will choose to take steps to enhance freedom, independence, and provide more choices to Americans with disabilities.”