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UPDATE: THIS FILE LAST EDITED 5-2005

Medicare

AT HEARINGS

- AT = ASSISTIVE TECHNOLOGY

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A PUBLICATION FROM THE...

SIGHT LOSS

INFORMATION

DETECTIVE

.....ALL RIGHTS RESERVED

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SHOULD THE READER WANT TO SUGGEST ANY ADDITIONS OR CORRECTIONS FOR THIS BULLETIN, PLEASE SEND YOUR IDEAS - GO TO LINK, SEND A MESSAGE, NEAR THE TOP OF THIS WEBPAGE.

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NOTE: THIS INFORMATION IS NOT INTENDED AS AN ENDORSEMENT OR RECOMMENDATION, AND IS PRESENTED SIMPLY AS A CONVENIENCE TO THE READER. BECAUSE OF THE CHANGING AVAILABILITY OF PRODUCTS AND SERVICES, THE COMPLETENESS OF THIS LISTING IS NOT GUARANTEED.

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ON SEPTEMBER 30, 1999 A POSITIVE RULING WAS ISSUED ON AN AUGUST 31, 1999 MEDICARE APPEAL HEARING FOR AN OCR READING APPLIANCE, AS FOLLOWS:

Mr. XXXXX XXXXXX:

Notice Of Decision-Fully Favorable

Enclosed is the Administrative Law Judge's decision on your claim. Please read this notice and the decision carefully.

This Decision is Fully Favorable To You

Your Medicare contractor will process the decision and send you a letter about your benefits. If you do not hear anything about this decision for 60 days, contact your Medicare contractor or local Social Security office.

The Appeals Council May Review The Decision On Its Own Motion

The Appeals Council may decide to review the Administrative Law Judge's decision on its own motion within 60 days from the date show above. Review at the Appeals Council's initiative could make the decision less favorable or unfavorable to you.

If You Disagree With The Administrative Law Judge's Decision

To file an appeal, you or your representative must request the Appeals Council to review the decision in writing. You may use our Request for Review form (HA-520) or write a letter. You may file a request at any local Social Security office. Health Care Financing Administration office, or hearing office, or mail it to Departmental Appeals Council, DHHS, Medicare Operations Division, Hubert H, Humphrey Building, Room 637D, 200 Independence Ave. SW, Washington, DC 20201. Please include the Health Insurance Claim Number (HICN) (or Medicare Part B Docket Number, if applicable) shown above on any appeal you file.

If you wish to appeal the decision, you must file your request for review within 60 days from the date you receive this notice. The Appeals Council will assume that you received the notice within five days after the date shown above unless you show you received it later. If you file a request for review after the 60-day period, the Appeals Council will dismiss the request unless you show you had a good reason for not filing it on time.

Social Security Administration regulation 20 CFR 404.968 specifies that you should submit any evidence you wish the Appeals Council to consider with your request for review.

Appeals Council Action On Your Appeal

The Appeals Council may deny or grant your request for review. The Appeals Council will review the hearing decision if one of the bases for review listed in regulation 20 CFR 404.970 is present.

Requesting review places the entire record of your case before the Appeals Council. If the Appeals Council decides to review your case, it will review the parts of the decision with which you disagree and the parts with which you agree. The Appeals Council may make any part of the decision more or less favorable or unfavorable to you.

The Appeals Council will send you a notice explaining its action. If the Appeals Council finds no reason to change the decision, the notice will explain why and tell you about your right to file a civil action in Federal District Court. If the Appeals Council grants review to issue a decision that is fully favorable considering your appeal, the notice will enclose the decision. If the Appeals Council grants review to consider issues in your case, the notice will identify the issues to be considered and provide you an opportunity to comment. If the Appeals Council decides that your case must be returned to an Administrative Law Judge, the notice will enclose a remand order that explains why the Appeals Council is returning your case and tells you about the actions the Administrative Law Judge will take.

If No Appeal And No Review On The Appeals Council's Own Motion

If the Appeals Council does not review the decision on its own motion and you do not appeal the decision within the time permitted, you will lose your right to as a Federal court to review the decision. This decision will become a final decision that cannot be revised, at your request or our initiative, except in certain circumstances.

Your Right To Representation

You may appoint an attorney or other qualified person to represent you in any appeal you may file with the Appeals Council. Your local Social Security office has a list of groups that can help you find an attorney.

Some private attorneys do not charge a fee unless you receive additional benefits. Some legal services organizations can provide legal services free of charge if you meet the organization's qualifying requirements. A representative may not collect a fee for services performed in representing you in dealing with us unless we have approved the fee. Providers or suppliers of Medicare services may not charge a fee for representing an individual to whom they have provided services.

Disclosure And Privacy Act Notice

Any identifying information (including the name, address, Health Insurance Claim Number (HICN) or any other personal identifiers) relating to the named beneficiary(ies) in this decision is protected from disclosure to anyone other than the appellant or the named beneficiary(ies) by the Social Security Act and the Privacy Act. Disclosure of such identifying information without the express written consent of the named beneficiary(ies) is a violation of section 1106 (a) of the Social Security Act, punishable by a $1,000.00 fine and/or one year imprisonment.

Do You Have Any Questions?

If you have any questions please contact your local Social Security office. If you visit the office, please bring this notice and decision with you.

Procedural History

This case is before the Administrative Law Judge pursuant to a request for hearing filed by the appellant, XXXXX X. XXXXXX, on March 15, 1999. At the hearing held in Portland, Oregon on August 31, 1999, Mr. XXXXXX was represented by XXXX XXXXXXX of the Oregon Advocacy Center. The medical provider, Kaiser Foundation Northwest, did not have a representative at the hearing. All documentary evidence has been introduced and made part of the record.

Issues

The issues to be determined are whether the VERA (Very Easy Reading Device) is considered either to be Durable Medical Equipment (DME) or a prosthesis and, whether this device is considered medically necessary for the diagnosis or treatment of illness or injury to improve the functioning of a malformed body member. Also to be considered is whether the VERA meets the definition of either a DME or prosthesis to be covered under the Medicare Plan.

Conclusion

It is the conclusion of the Administrative Law Judge that the appliance requested is durable medical equipment which is a functional replacement of an inoperative organ, the purchase of which is both reasonable and necessary.

Evaluation

The appellant experiences the hereditary degenerative condition of retinitis pigmentosa which causes progressive atrophy of the retina, resulting in very restricted vision to the extent that he is legally blind and magnification is of little, if any, help to him. With an appropriate written prescription from his treating physician, XXXXX XXXXXXXX M.D., the appellant requested that the health maintenance organization approve coverage of the VERA, which would enable him to hear written material. The approximate cost of this machine, and hence the amount in controversy, is $3,000.00. The HMO denied coverage under the premise that this reading appliance is neither an item of durable medical equipment nor a prosthetic device.

This was also the position of the Center for Health Dispute Resolution which, on February 9, 1999, held that the requested item is neither durable medical equipment nor a prosthesis (Exhibit 4). The argument given was that it is not durable medical equipment as it does not contribute to the reversing or retarding of a disease process and it is not a prosthetic device as it does not replace all or part of an internal body organ or replace function of a permanently inoperative or malfunctioning organ.

The representative in this case, Ms. XXXXXXXX, has submitted a comprehensive analysis of the issues involved (Exhibit 10). Also included are a number of prior Office of Hearings and Appeals decisions finding such devices to be covered under the Act and Regulations.

In the analysis it is argued that a device such as a VERA meets the characteristics of an item of durable medical equipment in that it can withstand repeated use, is primarily and customarily used to serve a medical purpose, generally is not useful in the absence of illness of injury, and is appropriate for use in the home. The device is warranted; designed for repeated use; is manufactured to remediate the medical problem of the inability to read printed text due to blindness; and the design is appropriate for home use. As a prosthetic device this machine operates to replace and function of a permanently inoperative or malfunctioning internal body organ; in this instance the eye.

Not addressed in the prior determinations are whether such a device is reasonable and necessary for the treatment of illness or injury. Equipment is necessary when it can be expected to make meaningful contribution to the treatment of illness or injury or to the improvement of a malformed body member. Reasonableness considers whether the expense of the item be clearly disproportionate to the therapeutic benefits which could ordinarily be derived from use of the equipment; is the item substantially more costly than a medically appropriate and feasible alternative pattern of care; and does the item serve the same purpose as equipment already available to the individual? Such an adaptive item is necessary as Mr. XXXXXX no longer has any ability to use magnification of any type for reading. It is substantial, the price appears competitive, and the beneficiary has no such equipment. Finally, this appliance has no characteristics in common with items subject to exclusion.

Consideration of all factors supports the position of the appellant and, furthermore supports the conclusion that the prescribed appliance is a benefit which is covered under the Act.

Findings

After careful consideration of the entire record, the Administrative Law Judge finds:

1. The VERA is durable medical equipment

2. The VERA is a prosthetic device

3. The VERA is both reasonable and necessary

4. This prescribed item should be provided for the appellant

Decision

It is the conclusion of the Administrative Law Judge that the VERA reading appliance is a Medicare covered benefit which should be approved for the beneficiary-appellant.

Wilmer B. Hill

Administrative Law Judge

Dated September 30, 1999

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