                                                                                       ACCEPTED
                                                                                   03-15-00226-CV
                                                                                           5697644
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                              6/16/2015 2:49:54 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                       CASE NO. 03-15-00226-CV

                    IN THE COURT OF APPEALS           FILED IN
                                               3rd COURT OF APPEALS
                 FOR THE THIRD JUDICIAL DISTRICT AUSTIN, TEXAS
                        AT AUSTIN, TEXAS       6/16/2015 2:49:54 PM
                                                          JEFFREY D. KYLE
              Texas Health & Human Services      Commission, Clerk
                              Appellant,
                                   v.
                             Linda Puglisi,
                               Appellee.

             On Appeal from Cause No. D-1-GN-14-000381
           53rd Judicial District Court of Travis County, Texas
              Honorable Judge Gisela D. Triana Presiding.


                            APPELLANT’S BRIEF


KEN PAXTON                          EUGENE A. CLAYBORN
Attorney General of Texas           State Bar No.: 00785767
                                    Assistant Attorney General
CHARLES E. ROY                      Deputy Chief, Administrative Law Division
First Assistant Attorney General    OFFICE OF THE ATTORNEY GENERAL OF TEXAS
                                 P.O. Box 12548, Capitol Station
JAMES E. DAVIS                   Austin, Texas 78711-2548
Deputy Attorney General for Telephone: (512) 475-3204
Civil Litigation                 Facsimile: (512) 320-0167
                                   eugene.clayborn@texasattorneygeneral.gov
DAV ID A. TALBOT, JR.
Chief, Administrative Law Division Attorneys for Texas Health and
                                   Human Services Commission


ORAL ARGUMENT REQUESTED                                     June 12, 2015
                IDENTITIES OF PARTIES AND COUNSEL

Defendants/Appellant: Texas Health & Human Services Commission

COUNSEL:

EUGENE A. CLAYBORN
State Bar No. 00785767
Assistant Attorney General
Deputy Chief, ADMINISTRATIVE LAW DIVISION
OFFICE OF THE TEXAS ATTORNEY GENERAL
P. O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-3204
Facsimile: (512) 320-0167
eugene.clayborn@texasattorneygeneral.gov

Plaintiffs/Appellee:    Linda Puglisi

COUNSEL:

MAUREEN O’CONNELL
State Bar No.: 00795949
SOUTHERN DISABILITY LAW CENTER
1307 Payne Avenue
Austin, Texas 78757
moconnell458@gmail.com


                   ORAL ARGUMENT REQUESTED

Pursuant to Rule 39, Texas Rules of Appellate Procedure, Appellant
requests oral argument in this case. Appellant believes that oral argument
will be beneficial to the court, given the complexity and novelty of the legal
issues identified herein.




                                        ii
                                     TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ........................................................ ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES.................................................................................... vi
I. STATEMENT OF THE CASE ..............................................................................1
II. ISSUES PRESENTED ..........................................................................................2
III. STANDARD OF REVIEW .................................................................................3
IV. JUDICIAL DEFERENCE TO AGENCY INTERPRETATION ........................4
V. FACTS OF THE CASE ........................................................................................7
VI. SUMMARY OF THE ARGUMENT ..................................................................8
VII. ARGUMENT AND AUTHORITIES ................................................................9
     A. Since Medicaid is the payor of last resort and Medicare is the payor of first
        resort, Puglisi’s dual eligible status requires her to seek prior authorization
        via the CMS Medicare DME process before seeking prior authorization for
        Medicaid services. Therefore, this suit is no longer ripe for adjudication.....9
              1. This suit is not ripe because of Puglisi’s dual eligibility status........10
              2. Medicare has its own preauthorization process. ...............................11
     B. The trial court erred in failing to remand pursuant to Tex. Gov’t Code
        §2001.175 based on Puglisi’s dual eligible status........................................12
     C. Puglisi’s suit for judicial review is not meritorious and HHSC’s decision
        affirming Molina Healthcare’s decision should not have been reversed. ....13
     D. HHSC’s decision affirming Molina Healthcare’s decision complies with
        applicable state and federal Medicaid regulations, therefore, the decisions
        are not arbitrary, capricious, or unreasonable. .............................................15
     E. Substantial evidence supports HHSC’s decisions because Puglisi failed to
        meet her burden to show that the Group 4 power wheelchair, integrated
        standing feature, and power seat elevation system are medically necessary,
        that their appropriateness has been properly documented, or that Puglisi has
        obtained prior authorization pursuant to 1 TAC §§ 354.1035(b),
        .1039(a)(4), and .1040(d). ............................................................................16
              1. Although the Group 4 custom power wheelchair is a covered DME
                 Medicaid home health benefit, it is not medically necessary, its
                 appropriateness has not been properly documented, or Puglisi has
                 not obtained prior authorization in this case.....................................18
                                                      iii
   a. A Group 4 PMD is not medically necessary to correct or ameliorate
      Puglisi’s medical need for mobility and independence. ................20
   b. Puglisi’s documentation failed to satisfy the prior authorization
      criteria described in TMPPM § 2.2.14.12.5. ..................................22
   c. Exceptional circumstances review of Puglisi’s request for a group 4
      power wheel chair is not required because it is listed DME..........23
2. The integrated standing feature is not a covered reimbursable
   benefit, therefore, it should not be considered medically necessary,
   appropriate, or prior authorized. .......................................................23
   a. Mobile power standing systems are not a covered benefit pursuant
      to TMPPM § 2.2.14.26...................................................................24
   b. Puglisi did not request exceptional circumstances review of her
      request for an integrated standing feature. ...................................256
   c. Koenning v. Suehs was vacated and dismissed as moot, therefore
      Puglisi’s reliance on this case is misplaced. ..................................27
   d. CMS policy letters and recent federal case law support exclusion of
      mobile power standers....................................................................29
   e. Puglisi’s Texas Government Code § 2001.038 rule challenge lacks
      merit. ..............................................................................................30
       i. Puglisi cannot maintain an action for declaratory relief. ............30
       ii. Section 2001.038 allows suits for declaratory relief only before a
            final order issues in a contested case. ......................................31
       iii. Legal precedent confirms that declaratory relief is available to
            challenge a rule in general but unavailable to alter the
            application of a rule after the fact. ...........................................37
       iv. The redundant remedies and separation-of-powers doctrines
           negate Puglisi’s ability to bring a § 2001.038 claim in this
           suit............................................................................................38
3. In this case, a power seat elevation system is not medically
   necessary, appropriately documented, or prior authorized...............41
   a. Puglisi failed to satisfy the requirements of medical necessity and
      prior authorization for the requested power seat elevation
      system. ............................................................................................43
   b. Exceptional circumstances review for the requested power seat
      elevation system is not required in this case. .................................44

                                             iv
      F. Puglisi received adequate due process relating to Molina Healthcare’s
         denial of her request for Group 4 power wheelchair, integrated standing
         feature, and power seat elevation system. ....................................................44
              1. Puglisi has no protected due process right to Home Health Services
                 program services because the program’s existing rules do not confer
                 a protected interest in Medicaid benefits to her................................45
              2. Molina Healthcare’s denial notice is sufficient. ...............................46
              3. The Reviewing Attorney fulfilled his statutory duties. ....................46
VIII. CONCLUSION & PRAYER ..........................................................................47
CERTIFICATE OF COMPLIANCE .......................................................................49
CERTIFICATE OF SERVICE ..........................................................................49
ACRONYMS ...........................................................................................................50
APPENDICES .........................................................................................................52




                                                          v
                                        INDEX OF AUTHORITIES

Cases
20801, Inc. v. Parker,
  249 S.W. 3d 392 (Tex. 2008) .................................................................................6
All Saints Health Sys. v. Tex. Workers’ Comp. Comm’n,
  125 S.W.3d 96 (Tex. App.—Austin 2003, pet. denied) .......................................36
Atmos Energy Corp. v. Cities of Allen,
  353 S.W.3d 156, 160 (Tex. 2011) ..........................................................................6
Bd. of Regents v. Roth,
  408 U.S. 564 (1972) .............................................................................................45
Beacon Nat’l Ins. Co. v. Montemayor,
  86 S.W.3d 260 (Tex. App.—Austin 2002, no pet.)..............................................38
BFI Waste Sys. v. Martinez Envtl. Grp.,
  93 S.W.3d 570 (Tex. App.—Austin 2002, pet. denied) .......................................14
Charlie Thomas Ford v. A.C. Collins Ford,
  912 S.W.2d 271 (Tex. App.—Austin 1995, writ dism’d) ............................. 34, 37
Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res.
  Conservation Comm’n, 124 S.W.3d 844 (Tex. App.—Austin 2003, pet.
  denied) ..................................................................................................................37
City of El Paso v. Pub. Util. Comm’n,
  883 S.W.2d 179, at 185 ......................................................................................3, 4
Dep’t of Pub. Safety v. Latimer,
  939 S.W.2d 240 (Tex. App.—Austin 1997, no writ) .............................................3
Detgen ex. rel. v. Janek,
  752 F.3d 627 (5th Cir. 2014) .................................................................................25
Detgen v. Janek,
  945 F.Supp.2d 746, 759 (N. D. Tex. 2013) ..........................................................30
Envoy Med. Systems, v. State,
  108 S.W.3d 333, 337 (Tex. App.—Austin 2003, no pet.) ...................................14
Friends of Canyon Lake v. Guadalupe-Blanco River Auth.,
  96 S.W.3d 519, 529 (Tex. App.—Austin 2002, pet. Denied) ....................... 32, 37
Galbraith Eng’g Consultants, Inc. v. Texas Citizens for a Safe Future &
  Clean Water,
  336 S.W.3d 619 (Tex. 2011) ..................................................................................6
HHSC v. El Paso County Hospital District,
  351 S.W.3d 460 (Tex. App.—Austin, 2011), aff’d, 400 S.W.3d 72
  (Tex.2013) ............................................................................................................36
Johnson v. Guhl,
  91 F.Supp.2d 754 (D.N.J. 2000)...........................................................................46
                                                             vi
Keeter v. Tex. Dep’t of Agric.,
  844 S.W.2d 901 (Tex. App.—Austin 1992, writ denied) ....................................31
KEM Tex. Ltd. v. Tex. Dep’t of Transp.,
  No. 03-08-00468-CV, 2009 WL 1811102, at *6 n.6 (Tex. App.—Austin
  June 26, 2009, no pet.) (mem. op.) .......................................................................37
Koenning v. Janek,
  539 Fed.Appx. 353, (5th Cir. 2013) .....................................................................28
Koenning v. Suehs,
  897 F.Supp.2d 528 (S.D. 2012) ..................................................................... 27, 28
Koenning v. Suehs,
  Civil Action No. V-11-5, 2013 WL 6491075, at *1 (S.D. Tex. Dec. 9,
  2013) .....................................................................................................................28
Liberty Mut. Ins. Co. v. Texas Dep't of Ins.,
  187 S.W.3d 808, 827 (Tex. App.—Austin 2006, pet. denied) .............................45
Lopez v. Pub. Util. Comm’n,
  816 S.W.2d 776, 782 (Tex. App.—Austin 1991, writ denied) ..................... 35, 38
Marks v. St. Luke’s Episcopal Hosp.,
  319 S.W.3d 658 (Tex. 2010) ..............................................................................4, 6
McMillan v. Tex. Natural Res. Conservation Comm’n,
  983 S.W.2d 359 (Tex. App.—Austin 1998, pet. denied) .....................................14
Meier Infinity Co. v. Motor Vehicle Bd.,
  918 S.W. 2d 95 (Tex. App.—Austin 1996, writ denied) .......................................4
Neuwirth v. La. State Bd. of Dentistry,
  845 F.2d 553 (5th Cir.1988) .................................................................................45
Northwestern Nal’t Cnty. Mut. Ins. Co. v. Rodriguez,
  18 S.W.3d 718 (Tex.App.—San Antonio 2000, pet denied) .................................6
Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc.,
  971 S.W.2d 439 (Tex. 1998) ......................................................................... 10, 11
Perry v. Del Rio,
  66 S.W.3d 239 (Tex. 2001) ..................................................................................11
Public Util. Comm’n v. Gulf States Utils. Co.,
  809 S.W.2d 201 (Tex. 1991) ..................................................................................7
R.R. Comm’n of Tex. v. Centerpoint Energy Res. Corp., et al.,
  Nos. 03-13-00533-CV, 03-13-00534-CV, 03-13-00535-CV, 2014 WL
  4058727, at *2 (Tex.App.—Austin Aug. 14, 2014, no pet.)................................10
Rutherford Oil Corp. v. Gen. Land Office,
  776 S.W.2d 232 (Tex. App.—Austin 1989, no writ) ...........................................33
Star Houston, Inc. v. Tex. Dep’t of Transp.,
  957 S.W.2d 103 (Tex. App.—Austin 1997, pet. denied) .....................................32


                                                             vii
State Bd. of Ins. v. Deffebach,
  631 S.W.2d 794 (Tex. App.—Austin 1982, writ ref’d n.r.e.) ..............................33
Sw. Pharm. Solutions, Inc. v. THHSC,
  408 S.W.3d 549 (Tex. App.—Austin 2013, pet. denied) .......................................6
SWEPI LP v. R.R. Comm’n,
  314 S.W.3d 253, 269-270 (Tex.App.—Austin 2010, pet. Denied) .....................39
TAMU v. Hole,
  194 S.W.3d 591 (Tex. App.—Waco, 2006, pet. denied) .....................................10
Tarrant Appraisal Dist. v. Moore,
  845 S.W.2d 820 (Tex. 1993) ................................................................................13
Tenn. Gas Pipeline v. Rylander,
  80 S.W.3d 200 (Tex. App.—Austin 2002, pet. denied) .......................................14
Tex. Comm’n of Licensing & Regulation v. Model Search Am., Inc.,
  953 S.W.2d 289 (Tex. App.—Austin 1997, no writ) ...........................................40
Tex. Dep’t of Licensing & Regulation v. Roosters MGC, LLC,
  No. 03-09-00253-CV, 2010 WL 2354064, at * 6 (Tex. App.—Austin
  June 10, 2010, no pet.) (mem. op.) ................................................................ 34, 40
Tex. Gen. Indem. v. Tex. Workers' Comp. Comm'n,
  36 S.W.3d 635 (Tex. App.—Austin 2000, no pet.)..............................................14
Tex. Health Facilities Comm’n v. Charter Med.-Dall.,
  665 S.W.2d 446 (Tex. 1984) ..................................................................................4
Tex. Mun. Power Agency v. Pub. Util. Comm’n,
  253 S.W.3d 184 (Tex. 2007) ..................................................................................4
Tex. Rivers Prot. Ass’n v. TNRCC,
  910 S.W.2d 147 (Tex. App.—Austin 1995, writ denied) ......................................4
Tex. State Bd. of Med. Exam’rs v. Scheffey,
  949 S.W.2d 431 (Tex. App.—Austin 1997, writ denied) ......................................3
Tex. Water Comm’n v. Dellana,
  849 S.W.2d 808 (Tex. 1993) (per curiam) ...........................................................34
Texas Bd. of Chiropractic Exam’rs v. Texas Med. Ass’n,
  375 S.W.3d 464 (Tex. App.--Austin 2012, pet. denied) ........................................7
TGS-NOPEC Geophysical Co. v. Combs,
  340 S.W.3d 432 (Tex. 2011) ..................................................................................7
Tobias v. Univ. of Tex. at Arlington,
  824 S.W.2d 201 (Tex.App.—Fort Worth 1991, writ denied) ..............................46
Weyth v. Levine,
  555 U.S. 555 S. Ct. 1187, 173 L.Ed.2d 51 (2009) .................................................7
Woody v. Dallas,
   809 F.Supp. 466 (N.D.Tex. 1992) ............................................................... 45, 46


                                                      viii
Statutes
Tex. Gov’t Code § 311.021(2) .............................................................................6, 33
Tex. Gov’t Code § 311.023(1)-(5) .............................................................................6
Tex. Gov’t Code § 531.019......................................................................... 31, 35, 37
Tex. Gov’t Code § 531.019(c) (West 2004 and Supp. 2009) ..................................47
Tex. Gov’t Code § 531.019(e)(2) (West 2004 and Supp. 2009) .............................47
Tex. Gov’t Code § 531.019(g) (West 2000 & Supp. 2008) ......................................3
Tex. Gov’t Code § 531.021(a) ...............................................................................5, 6
Tex. Gov’t Code § 531.021(b)(2) (West 2012) .........................................................5
Tex. Gov’t Code § 531.021(d)(1) (West 2012) .........................................................5
Tex. Gov’t Code § 531.021(d)(2) (West 2012) .........................................................5
Tex. Gov’t Code § 2001.003(1) ...............................................................................33
Tex. Gov’t Code § 2001.003(6)(A) .........................................................................33
Tex. Gov’t Code § 2001.038............................................................................ passim
Tex. Gov’t Code § 2001.038(d) ...............................................................................34
Tex. Gov’t Code § 2001.038(e) ...............................................................................36
Tex. Gov’t Code § 2001.054....................................................................................32
Tex. Gov’t Code § 2001.171............................................................................ passim
Tex. Gov’t Code § 2001.174....................................................................................39
Tex. Gov’t Code § 2001.174(2)(D) .........................................................................39
Tex. Gov’t Code § 2001.174(D) ..............................................................................34
Tex. Gov’t Code § 2001.175............................................................................ passim
Tex. Hum. Res. Code § 32.021(a) .........................................................................5, 6
Tex. Hum. Res. Code § 32.021(c) (West 2001) ........................................................5
Tex. Hum. Res. Code § 32.050(b) .........................................................................2, 9
Texas Human Resources Code, Chapter 32...............................................................5
Other Authorities
42 C.F.R. § 430.10 .....................................................................................................5
42 U.S.C. § 1396 ........................................................................................................5
42 U.S.C. § 1396a(a)..................................................................................................5
42 U.S.C. § 1396b(a) .................................................................................................5
42 U.S.C. § 1396c ......................................................................................................5
42 U.S.C. § 1396d(b) .................................................................................................5
42 U.S.C. § 13896(b) .................................................................................................5
TMPPM § 2.2.2........................................................................................... 20, 21, 43
TMPPM § 2.2.14.12.................................................................................................19
TMPPM § 2.2.14.12.1..............................................................................................19
TMPPM § 2.2.14.12.5........................................................................... 19, 22, 23, 44
TMPPM § 2.2.14.15.1..............................................................................................42

                                                           ix
TMPPM § 2.2.14.15.2..............................................................................................42
TMPPM § 2.2.14.22.......................................................................................... 24, 25
TMPPM § 2.2.14.26......................................................................................... passim
TMPPM § 2.2.14.6 ...................................................................................................28
TMPPM § 2.2.14.6.2................................................................................................19
Rules
1 Tex. Admin. Code § 354.1031 ...................................................................... passim
1 Tex. Admin. Code § 354.1031(12) .......................................................................28
1 Tex. Admin. Code § 354.1035 ...................................................................... passim
1 Tex. Admin. Code § 354.1035(b) .....................................................................3, 16
1 Tex. Admin. Code § 354.1039 ...................................................................... passim
1 Tex. Admin. Code § 354.1039(a) ............................................................ 14, 17, 24
1 Tex. Admin. Code § 354.1039(a)(4).................................................................3, 16
1 Tex. Admin. Code § 354.1039(a)(4)(A) .................................................. 15, 18, 41
1 Tex. Admin. Code § 354.1039(a)(4)(D) .................................................. 23, 26, 44
1 Tex. Admin. Code § 354.1040 ...................................................................... passim
1 Tex. Admin. Code § 354.1040(d) .............................................................. 3, 16, 18
1 Tex. Admin. Code § 354.1040(e) .........................................................................18
1 Tex. Admin. Code § 354.1041 ............................................................................2, 9
1 Tex. Admin. Code § 357.19(e) .............................................................................47
1 Tex. Admin. Code § 357.703(5) ...........................................................................47
Other Authorities
13 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal
  Practice & Procedure § 3532.1 at 136–37 (2d ed. 1984) .....................................11
DME MAC Jurisdiction C Supplier Manual, CGS: A Celerian Group
  Company (Apr. 01, 2015).................................................................................9, 11




                                                          x
                          CASE NO. 03-15-00226-CV

                       IN THE COURT OF APPEALS
                    FOR THE THIRD JUDICIAL DISTRICT
                           AT AUSTIN, TEXAS

                 Texas Health & Human Services Commission,
                                 Appellant,
                                     v.
                                Linda Puglisi,
                                  Appellee.

                On Appeal from Cause No. D-1-GN-14-000381
              53rd Judicial District Court of Travis County, Texas,
                  Honorable Judge Gisela D. Triana Presiding.

                            APPELLANT’S BRIEF


TO THE HONORABLE JUDGE OF THIS COURT:

      COMES NOW the Texas Health and Human Services Commission (HHSC)

and submits Appellant’s Brief.

                       I. STATEMENT OF THE CASE

      United Seating & Mobility, Puglisi’s Durable Medical Equipment (DME)

provider, requested prior authorization for a Group 4 power wheelchair, an

integrated standing feature, and power seat elevation system. A.R. at 47–161.

Molina Healthcare of Texas (Molina Healthcare), Puglisi’s Medicaid Managed Care

Organization (MCO), denied her request for a Group 4 power wheelchair because it

was not medically necessary. A.R. at 42–46, Appendix 1. In addition, Molina

Healthcare denied Puglisi’s request for a mobile stander or integrated standing
feature because it was not a covered benefit and not medically necessary. A.R. at

27–46. Also, Molina Healthcare denied Puglisi’s request for a power seat elevation

system because it was not medically necessary.

      Thereafter, Puglisi requested a fair hearing to contest the denial of United

Seating & Mobility’s request for prior authorization of DME. However, HHSC’s

Hearing Officer sustained Molina Healthcare’s decision to deny Puglisi’s request.

A.R. at 330–36, Appendix 2. After administrative review, the Reviewing Attorney

sustained the Hearings Officer’s order. A.R. at 339–47, Appendix 3. Also, the

Hearing Officer adopted the Reviewing Officer’s findings and conclusions. A.R.

at 339–47. Thereafter, on February 7, 2014, Puglisi sought judicial review of the

decisions. However, on May 1, 2014, Puglisi’s eligibility status changed and she

became qualified for Medicare services. C.R. at 261–262. Nevertheless, the trial

court denied HHSC’s Motion to Dismiss and issued its final judgment reversing and

remanding the case to HHSC. C.R. at 314, 348–49, Appendix 9 and Appendix 10.

                            II. ISSUES PRESENTED

   1. Whether the case should be dismissed for lack of subject matter jurisdiction
      because Medicare is the payor of first resort and Medicaid is the payor of last
      resort pursuant to Tex. Hum. Res. Code § 32.050(b) and 1 TAC § 354.1041.

   2. Whether the trial court should have remanded the Medicare eligibility issue
      to HHSC to take additional evidence and hold an appropriate hearing pursuant
      to Texas Gov’t Code § 2001.175.

   3. Whether HHSC’s interpretation and application of Texas’ Medicaid
      regulations and policies are entitled to more deference from the trial court.
                                         2
   4. Whether the Hearing Officer’s and the Reviewing Attorney’s decisions are
      consistent with federal and state law.

   5. Whether substantial evidence supports the Hearing Officer’s Order and the
      Reviewing Attorney’s Decision affirming Molina Healthcare’s denial of
      Puglisi’s request because she failed to meet her burden to show that the Group
      4 power wheelchair, integrated standing feature, and power seat elevation
      system are medically necessary, appropriate, and prior authorized pursuant to
      1 Tex. Admin. Code §§ 354.1035(b), .1039(a)(4), .1040(d).

   6. Whether Puglisi received adequate due process relating to Molina
      Healthcare’s denial of her request for a Group 4 power wheelchair, integrated
      standing feature, and power seat elevation system.

                           III. STANDARD OF REVIEW

      “Judicial review of a decision made by a hearing officer for the commission

or a health and human services agency related to public assistance benefits is under

the substantial evidence rule and is instituted by filing a petition with a district court

in Travis County, as provided by Subchapter G, Chapter 2001.” Tex. Gov’t Code

Ann. § 531.019(g) (West 2000 & Supp. 2008). Under this standard, the reviewing

court is concerned only with the reasonableness of the administrative order, not the

correctness of the order. The test for review of an agency decision is not whether

the agency reached the correct conclusion, but whether some reasonable basis exists

in the record for the agency’s action. City of El Paso v. Pub. Util. Comm’n, 883

S.W.2d 179, 185 (Tex. 1994); Tex. State Bd. of Med. Exam’rs v. Scheffey, 949

S.W.2d 431, 437 (Tex. App.—Austin 1997, writ denied); Dep’t of Pub. Safety v.

Latimer, 939 S.W.2d 240, 244 (Tex. App.—Austin 1997, no writ); Meier Infinity
                                            3
Co. v. Motor Vehicle Bd., 918 S.W.2d 95, 98 (Tex. App.—Austin 1996, writ denied).

      Puglisi has the burden of proof in her suit for judicial review. “[F]indings,

inferences, conclusions, and decisions of an administrative agency are presumed to

be supported by substantial evidence, and the burden is on the contestant to prove

otherwise.” Pub. Util. Comm’n, 883 S.W.2d at 185 (citing Tex. Health Facilities

Comm’n v. Charter Med.-Dall., 665 S.W.2d 446, 452–53 (Tex. 1984)). As long as

a properly supported finding given in the order supports an agency’s action, the court

will uphold the action despite the existence of other findings that are irrelevant or

unsupported by the record. Tex. Rivers Prot. Ass’n v. TNRCC, 910 S.W.2d 147,

155 (Tex. App.—Austin 1995, writ denied).

      In addition, matters of statutory construction are reviewed de novo. Tex. Mun.

Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192 (Tex. 2007).                In

construing a statute, a court applies the plain meaning of the text unless a different

meaning is supplied by legislative definition or is apparent from the context or the

plain meaning leads to absurd results. Marks v. St. Luke’s Episcopal Hosp., 319

S.W.3d 658, 663 (Tex. 2010).

      IV. JUDICIAL DEFERENCE TO AGENCY INTERPRETATION

      Medicaid Home Health Services is a part of the Texas Medicaid program.

The Texas Legislature has given HHSC broad discretion to “establish methods of

administration and adopt necessary rules for the proper and efficient operation of the


                                          4
program.” Tex. Hum. Res. Code § 32.021(c) (West 2001). Additionally, the

Texas Legislature has given HHSC broad discretion to “adopt reasonable rules and

standards governing the determination of fees, charges, and rates for medical

assistance payments under Chapter 32, Human Resources Code, in consultation with

the agencies that operate the Medicaid program.” Tex. Gov’t Code § 531.021(b)(2)

(West 2012). Further, “[i]n adopting rules and standards required by Subsection

(b)(2), the commission may provide for payment of fees, charges, and rates in

accordance with: (1) formulas, procedures, or methodologies prescribed by the

commission rules; (2) applicable state or federal law, policies, rules, regulations, or

guidelines.” Tex. Gov’t Code § 531.021(d)(1), .021(d)(2) (West 2012). In a recent

opinion, the Third Court of Appeals described the cooperative nature of the Texas

Medicaid program as follows:

      Medicaid is a cooperative federal-state program that provides health
      care to needy individuals. See generally 42 U.S.C. §§ 1396–96w
      (Grants to States for Medical Assistance Programs). While federal law
      establishes Medicaid’s basic parameters, each state decides the nature
      and scope of its Medicaid program and submits a State plan describing
      its program to the federal Center for Medicare and Medicaid Services,
      which must approve the plan and any amendments. See 42 U.S.C.
      § 1396a(a), 13896(b); 42 C.F.R. § 430.10. The federal government
      agrees to pay a specified percentage of a state’s expenditures for
      covered services provided by the state under an approved State plan.
      See 42 U.S.C. §§ 1396b(a), 1396c, 1396d(b). . . . In Texas, HHSC is
      the agency designated to administer federal medical assistance
      programs, including Medicaid. See Tex. Hum. Res. Code § 32.021(a);
      Tex. Gov’t Code § 531.021(a).



                                          5
See Sw. Pharm. Solutions, Inc. v. THHSC, 408 S.W.3d 549, 552 (Tex. App.—Austin

2013, pet. denied). Like the plaintiff in Southwest Pharmacy, Puglisi is asking this

Court to construe the Medicaid statutes, rules, policies, and procedures that HHSC

is responsible for implementing in Texas.

      Furthermore, the Third Court of Appeals described the “rules of construction”

as follows:

      Of primary concern is the express statutory language. See Galbraith
      Eng’g Consultants, Inc. v. Texas Citizens for a Safe Future & Clean
      Water, 336 S.W.3d 619, 624 (Tex. 2011). We apply the plain meaning
      of the text unless a different meaning is supplied by legislative
      definition or is apparent from the context of the plain meaning leads to
      absurd results. Marks v. Luke’s Episcopal Hosp., 319 S.W.3d 658, 663
      (Tex. 2010). “We generally avoid construing individual provisions of
      a statute in isolation from the statute as a whole [,]” Texas Citizens, 336
      S.W.3d at 628, we must consider a provisions’ role in the broader
      statutory scheme, see 20801, Inc. v. Parker, 249 S.W. 3d 392, 396 (Tex.
      2008), and we presume that “the entire statute is intended to be
      effective[,]” Tex. Gov’t Code § 311.021(2). A court may consider the
      law’s objective; the circumstances under which the statute was enacted;
      legislative history; former statutory provisions; and the consequences
      of a particular construction when construing statutes, whether or not the
      statute is ambiguous. Tex. Gov’t Code § 311.023(1)-(5); Atmos
      Energy Corp. v. Cities of Allen, 353 S.W.3d 156, 160 (Tex. 2011).
      “Construction of a statute must be consistent with its underlying
      purpose and the policies it promotes.” Northwestern Nal’t Cnty. Mut.
      Ins. Co. v. Rodriguez, 18 S.W.3d 718, 721 (Tex.App.—San Antonio
      2000, pet denied).

      Here, we must construe statutes and rules that HHSC is charged with
      administering. See Tex. Hum. Res. Code § 32.021(a); Tex. Gov’t
      Code § 531.021(a). “[A]n agency’s interpretation of a statute it is
      charged with enforcing is entitled to ‘serious consideration,’ so long as
      the construction is reasonable and does not conflict with the statute’s
      language.” Texas Citizens, 336 S.W.3d at 624. When a statutory
                                          6
      scheme is subject to multiple interpretations, we must uphold an
      enforcing agency’s construction if it is reasonable and in harmony with
      the statute. Id. at 629 (observing that “governmental agencies have a
      ‘unique understanding’ of the statutes they administer”) (quoting Weyth
      v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 173 L.Ed.2d 51 (2009)). This
      deference is particularly important in construing a complex statutory
      scheme like that governing Texas Medicaid. See id. at 629-30. We
      construe administrative rules in the same manner as statutes. TGS-
      NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011).
      We defer to an agency’s interpretation of its own rules unless it is
      plainly erroneous or contradicts the text of the rule or underlying
      statute. Public Util. Comm’n v. Gulf States Utils. Co., 809 S.W.2d
      201, 207 (Tex. 1991); Texas Bd. of Chiropractic Exam’rs v. Texas Med.
      Ass’n, 375 S.W.3d 464, 475 (Tex. App.--Austin 2012, pet. denied).

See Sw. Pharm. Solutions, 408 S.W.3d at 557–58.            In this instance, HHSC’s

interpretation of 1 Tex. Admin. Code (TAC) §§ 354.1035, .1039, and .1040, as

expressed in the Texas Medicaid Providers Procedures Manual (TMPPM), should

be upheld because its interpretation is reasonable and does not conflict with state and

federal statutes, regulations, policies and guidance. Appendix 4 and Appendix 5.

                            V. FACTS OF THE CASE

      Appellant adopts the Findings of Fact as set forth in the Hearings Officer’s

Order and the Reviewing Attorney’s Decision. A.R. at 333–34, 344–46, Appendix

2 and Appendix 3. Essentially, Molina Healthcare denied Puglisi’s request for a

Group 4 power wheelchair because it was not medically necessary. In addition, the

Hearing Officer concluded that the integrated standing feature was not medically

necessary and was not a covered benefit. Also, the Hearing Officer determined that

the power seat elevation system was not medically necessary. After considering the
                                          7
evidence in the record, the factual findings, and applicable law, the Hearing Officer

decided that “therefore, Molina Healthcare’s action to deny a group 4 power

wheelchair with an integrated standing feature is SUSTAINED.” A.R. at 334, 346,

Appendix 3. In addition, the Reviewing Attorney determined that “[t]he record

reflects that Molina properly denied Appellant’s request for a Group 4 custom power

wheelchair with an integrated standing feature and power seat elevation system in

accordance with applicable law and policy.” A.R. at 347, Appendix 4.

                    VI. SUMMARY OF THE ARGUMENT

      This case should have been dismissed for lack of subject matter jurisdiction

or remanded to the agency to take and adjudicate additional evidence regarding

Puglisi’s dual eligibility status. Regardless, the Hearing Officer and Reviewing

Attorney correctly affirmed Molina Healthcare’s denial of Puglisi’s request for a

Group 4 power wheelchair, the integrated standing feature, and the power seat

elevation system based on substantial evidence in the record as well as the proper

interpretation and application of applicable agency rules, policies, and procedures.

In total, Puglisi has received all the process that she was due. Therefore, the trial

court’s judgment should be: (a) reversed because the trial court lacks subject matter

jurisdiction, (b) reversed because Molina Healthcare’s and HHSC’s decisions are

supported by substantial evidence, or (c) remanded to Molina Healthcare and HHSC

to take additional evidence pursuant to Tex. Gov’t Code § 2001.175.


                                         8
                   VII. ARGUMENT AND AUTHORITIES

A.    Since Medicaid is the payor of last resort and Medicare is the payor of
      first resort, Puglisi’s dual eligible status requires her to seek prior
      authorization via the CMS Medicare DME process before seeking prior
      authorization for Medicaid services. Therefore, this suit is no longer ripe
      for adjudication.

      The Court erred in concluding “this DME item” must receive prior

authorization from Texas Medicaid. C.R. at 348–49. Since Puglisi has acquired

dual eligible status, she must present her request for DME through the Centers for

Medicare and Medical Services (CMS) Medicare DME preauthorization process.

See Affidavit of Daneen Machicek, C.R. at 269–70.        Specifically, Texas law

requires HHSC to analyze claims submitted under Medicaid to ensure claims are

submitted first under Medicare to the extent allowed by law. Tex. Hum. Res. Code

§ 32.050(b) (West 2013), C.R. at 271. Medicare is the primary payor when a person

is eligible for both Medicaid and Medicare. 1 TAC § 354.1041, C.R. at 273. The

CMS Medicare DME preauthorization process is described in the Durable Medical

Equipment Medicare Administrative Contractor (DME MAC) Jurisdiction C

Supplier Manual. C.R. at 285–313, Appendix 11. The Celerian Group Company

(CGC) is the DME MAC for Jurisdiction C, which includes Texas, that was selected

by CMS to process Durable Medical Equipment, Prosthetics, Orthotics, and Supplies

(DMEPOS) claims for the Medicare program. C.R. at 292.




                                        9
      1. This suit is not ripe because of Puglisi’s dual eligibility status.

      Puglisi affirms that her new Medicare-Medicaid status is Medicaid Qualified

Medicare Beneficiary (MQMB). For MQMB recipients, Medicare is the primary

payor for DME authorized via the CMS Medicare prior authorization process. See

Affidavit of Daneen Machicek, C.R. at 269–70. In this instance, Puglisi’s new dual

eligible status requires her to seek assistance under Medicare before seeking

assistance under Medicaid.      Puglisi’s new dual eligible status is a significant

intervening event that renders the underlying issues of this suit unfit for judicial

review and also alleviates any contingent or hypothetical hardship that Puglisi may

experience in the absence of a judicial decision at this time.

      The ripeness doctrine should be applied to the post-filing circumstances or

intervening events that have occurred in this case. “Ripeness is a threshold issue

that implicates subject-matter jurisdiction and emphasizes the need for a concrete

injury.” TAMU v. Hole, 194 S.W.3d 591, 593 (Tex. App.—Waco, 2006, pet.

denied)(citing Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc., 971

S.W.2d 439, 442 (Tex. 1998)). In this case, the ripeness issue must account for

significant “intervening events” or “post-filing circumstances” that have occurred

after the initial suit was filed. See R.R. Comm’n of Tex. v. Centerpoint Energy Res.

Corp., et al., Nos. 03-13-00533-CV, 03-13-00534-CV, 03-13-00535-CV, 2014 WL

4058727, at *2 (Tex.App.—Austin Aug. 14, 2014, no pet.) (“Ripeness should be


                                          10
decided on the basis of all the information available to the court, and we may

consider intervening events that occur after the decision in the lower court.”)(citing

Perry v. Del Rio, 66 S.W.3d 239, 250 (Tex. 2001)); 13 Charles Alan Wright, Arthur

R. Miller, & Edward H. Cooper, Federal Practice & Procedure § 3532.1 at 136–37

(2d ed. 1984); Patterson, 971 S.W.2d at 442.

      2. Medicare has its own preauthorization process.

      Puglisi declared that “Medicare does not require prior authorization for

DME.”     See Plaintiff’s Response In Opposition To Defendant’s Motion To

Dismiss, FN6, p.8, C.R. at 254.            However, the CMS Medicare DME

preauthorization process is described in the DME MAC Jurisdiction C Supplier

Manual.    C.R. at 285–313, Appendix 11.         The CGC is the DME MAC for

Jurisdiction C, which includes Texas, which was selected by CMS to process

DMEPOS claims for the Medicare program.             C.R. at 285–313; DME MAC

Jurisdiction C Supplier Manual, CGS: A Celerian Group Company (Apr. 01, 2015),

http://cgsmedicare.com/jc/pubs/supman/. Since Puglisi has acquired dual eligible

status, she is required to avail herself to the CMS Medicare prior authorization

process and procedure in the first instance.




                                         11
B.       The trial court erred in failing to remand pursuant to Tex. Gov’t Code
         §2001.175 based on Puglisi’s dual eligible status.


         The trial court’s order states that “this matter is hereby REVERSED and

REMANDED back to the Texas Health and Human Services for further proceedings

consistent with [this] decision, including any other required determinations related

to Medicare and Medicaid issues not currently before the Court.” C.R. at 348. The

“REVERSAL” component of the order, however, is in conflict with the “REMAND”

component. Specifically, the court’s order does account for the undisputed fact

Puglisi is now dually eligible for both Medicare and Medicaid. Even though the

undisputed evidence of Puglisi’s dual eligible status was presented to the trial court

during the hearing on the motion to dismiss and was presented in our objections to

the trial court’s letter ruling in the trial on the merits, the trial court failed to consider

Puglisi’s dual eligible status in the context of the suit for judicial review. At a

minimum, the trial court’s rulings should include a determination as to whether

Puglisi’s dual eligibility status is material to the determination of whether she is

required to request the DME from CMS’s Medicare DME MAC in the first instance.

If the trial court had properly considered the significance of Puglisi’s dual eligibility,

the trial court should have simply remanded the case to HHSC without adjudicating

unripe     issues   relating   to   coverage,     reimbursement,       medical    necessity,

appropriateness, and prior authorization.


                                             12
      Since the dual eligibility issue is material to this case and occurred after the

administrative review, the trial court should “order that the additional evidence be

taken before the agency on conditions determined by the court” pursuant to Tex.

Gov’t Code § 2001.175. In summary, Molina Healthcare, the entity that made the

initial determination, and the administrative tribunal, in its appellate role, should

have been given the opportunity to “change its findings and decision by reason of

the additional evidence” relating to dual eligibility pursuant to Tex. Gov’t Code

§ 2001.175. The issue of dual eligibility is material and good reasons exist to

explain why the evidence of dual eligibility was not presented to the administrative

tribunal.

C.    Puglisi’s suit for judicial review is not meritorious and HHSC’s decision
      affirming Molina Healthcare’s decision should not have been reversed.

      The trial court’s judgment states that “Plaintiff’s appeal is meritorious and

Defendant’s administrative decision should be reversed.”        C.R. at 348.     This

statement, however, is erroneous because the trial court has not given any deference

to HHSC’s interpretation of Texas Medicaid DME regulations that HHSC has the

responsibility to administer on behalf of the truly needy individuals in Texas. It has

long been the rule that “[c]onstruction of a statute by the administrative agency

charged with its enforcement is entitled to serious consideration, so long as the

construction is reasonable and does not contradict the plain language of the statute.”

See Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993); see also
                                         13
Envoy Med. Systems, v. State, 108 S.W.3d 333, 337 (Tex. App.—Austin 2003, no

pet.) (explaining that an -administrative agency has the power to interpret its own

rules and that interpretation is entitled to deference by a court called upon to interpret

or apply such rules); BFI Waste Sys. v. Martinez Envtl. Grp., 93 S.W.3d 570, 575

(Tex. App.—Austin 2002, pet. denied)(finding that because an agency's

interpretation represents the view of the regulatory body that drafted and administers

the rule, the interpretation actually becomes a part of the rule itself); Tenn. Gas

Pipeline v. Rylander, 80 S.W.3d 200, 203 (Tex. App.—Austin 2002, pet.

denied)(illustrating greater deference given to an interpretation that is longstanding

and applied uniformly); Tex. Gen. Indem. v. Tex. Workers' Comp. Comm'n, 36

S.W.3d 635, 641 (Tex. App.—Austin 2000, no pet.)(stating that an agency's

construction of its rule is controlling unless it is plainly erroneous or inconsistent);

McMillan v. Tex. Natural Res. Conservation Comm’n, 983 S.W.2d 359, 362 (Tex.

App.—Austin 1998, pet. denied)(stating that the agency interpretation becomes part

of the rule itself and represents the view of a regulatory body that must deal with the

practicalities of administering the rule).

      Instead of giving due deference, the trial court’s final judgment essentially

negates or nullifies HHSC’s interpretation and application of the Texas Medicaid

DME regulations, including but not limited to the following:

      1 TAC § 354.1039(a) . . . Home Health Services Benefits and
      Limitations - “The State determines authorization requirements and
                                             14
      limitations for covered home health service benefits. The home health
      agency is responsible for obtaining prior authorization where specified
      for the healthcare service, supply, equipment, or appliance. [Emphasis
      Added];

      1 TAC § 354.1039(a)(4)(A) . . . DME must (i) be medically necessary
      and the appropriateness of the . . . equipment, or appliance prescribed
      by the physician for the treatment of the individual recipient and
      delivered in his place of residence must be documented in the plan of
      care and/or the request form. (ii) be prior authorized unless otherwise
      specified by the department; . . . [Emphasis Added].

D.    HHSC’s decision affirming Molina Healthcare’s decision complies with
      applicable state and federal Medicaid regulations, therefore, the
      decisions are not arbitrary, capricious, or unreasonable.

      The trial court erred in finding “that the Commissions’ decision fails to

comply with the controlling and applicable federal and state law, and thus is

arbitrary, capricious, and unreasonable.”    C.R. at 348.    In this case, Molina

Healthcare and HHSC’s decisions comply with 1 TAC §§ 354.1031, .1035, .1039,

and .1040 as well as applicable Texas Medicaid Provider Procedures, which

establish and explain the “authorization requirements” and “limitations” for Group

4 power wheelchairs, mobile standers, and power seat elevation systems. In fact,

Puglisi failed to satisfy the requirements of applicable agency regulations, which

unequivocally provide that covered and reimbursable DME must be medically

necessary, that the appropriateness of the DME must be documented in the request

form, and that the home health agency must obtain prior authorization. 1 TAC

§ 354.1039(a)(4)(A).


                                        15
E.    Substantial evidence supports HHSC’s decisions because Puglisi failed to
      meet her burden to show that the Group 4 power wheelchair, integrated
      standing feature, and power seat elevation system are medically
      necessary, that their appropriateness has been properly documented, or
      that Puglisi has obtained prior authorization pursuant to 1 TAC
      §§ 354.1035(b), .1039(a)(4), and .1040(d).

      In its judgment, the trial court “finds that the Commission’s decision to deny

Medicaid coverage for the DME custom power wheelchair with an integrated

standing feature as recommended by her treating medical providers, because

Plaintiff has not demonstrated medical necessity, is also not supported by substantial

evidence and Plaintiff has established her entitlement based on medical necessity

under that applicable law.” C.R. at 348. The trial court’s finding shows that it

utilized a truncated one-part test to determine Puglisi’s eligibility for the requested

DME. However, Medicaid rules and provider procedures require application of a

multi-part test. Specifically, the applicable rules and procedures provide: (a) that

the DME must be covered DME, (b) that the DME must be reimbursable DME, (c)

that the DME must be medically necessary, (d) that the appropriateness of the DME

must be properly documented in the request form, and (e) that the DME must receive

prior authorization. In this case, the trial court discarded crucial parts of the correct

multi-part test.   In other words, the trial court failed to consider whether the

requested DME was covered, reimbursable, appropriate, and prior authorized.

      Puglisi asserts that “an individualized determination of DME coverage must

be made by ascertaining whether the requested item of medical equipment meets the
                                           16
state’s definition of DME.” C.R. at 57. However, Puglisi’s definition of the scope

of DME coverage is truncated and otherwise inconsistent with the much broader

scope of coverage for DME described in 1 TAC §§ 354.1031, .1035, .1039, and

.1040 as well as applicable Texas Medicaid Provider Procedures. Appendix 4 and

Appendix 5. Hence, the salient question is whether Puglisi is required to satisfy all

or only part of the regulatory prerequisites necessary to acquire the requested DME.

In this case, Puglisi is required to satisfy all of the necessary prerequisites. As such,

the trial court should have applied the correct multi-part test but failed to do so.

      Accordingly, 1 TAC § 354.1039(a) provides that “[t]he State determines

authorization requirements and limitations for covered home health service

benefits.” (emphasis added).      All of HHSC’s DME rules and procedures are

consistent with Centers for Medicare and Medicaid Service (CMS) policy on DME

coverage as articulated in the May 21, 2013 letter from CMS to HHSC. A.R. at

303. HHSC’s DME rules and procedures are also consistent with CMS policy on

DME coverage that is described in the Desario Letter dated September 4, 1998.

Appendix 6. As a result, a plain reading of applicable agency rules and provider

procedures show that just because a given item meets the Puglisi’s narrowly defined

scope of coverage for DME does not also mean: (a) that the item is covered DME,

(b) that the item is reimbursable DME, (c) that the item is medically necessary, (d)

that the appropriateness of the item is properly documented in the request form, or


                                           17
(e) that the item has received prior authorization.

      1. Although the Group 4 custom power wheelchair is a covered DME
         Medicaid home health benefit, it is not medically necessary, its
         appropriateness has not been properly documented, or Puglisi has not
         obtained prior authorization in this case.


      There is no dispute that a Group 4 power wheelchair is a covered Medicaid

home health benefit in Texas. Specifically, 1 TAC §§ 354.1031, .1035, .1039, and

.1040 as well as applicable Texas Medicaid Provider Procedures establish and

explain the “authorization requirements” and “limitations” for Group 4 power

wheelchairs.   Accordingly, applicable agency rules unequivocally provide that

covered and reimbursable DME must be medically necessary, that the

appropriateness of the DME must be documented in the request form, and that the

requestor must obtain prior authorization.        1 TAC § 354.1039(a)(4)(A).   In

addition, the DME supplier must receive prior authorization from HHSC.     1 TAC

§ 354.1040(d). Furthermore, prior authorization requires that the DME supplier

submit documentation, “in a manner approved by HHSC or its designee” for a Group

4 power wheelchair that consists of the physician’s prescription, documentation of

medical need, a clinical assessment, and “[a]ny other documentation deemed

necessary by HHSC or its designee to adequately explain the medical necessity of

the requested equipment.” 1 TAC § 354.1040(e).




                                          18
      Moreover, the Texas Medicaid Provider Procedures Manual (TMPPM),

consistent with the dictates of the “Desario Letter,” describes “reasonable and

specific criteria” for medical necessity, proper documentation, and prior

authorization of power wheelchairs. Specifically, TMPPM § 2.2.14.6.2 shows that

prior authorization for a power wheelchair is predicated on “proper documentation

supporting medical necessity and an assessment of the accessibility of the client’s

residence.” Appendix 5, DM-62. In addition, TMPPM § 2.2.14.6.2 describes the

documentation necessary to demonstrate medical necessity for a power wheelchair.

Appendix 5, DM-62. Also, TMPPM § 2.2.14.12 describes the power wheelchair

and its standard components.      Appendix 5, DM-68.        Furthermore, the prior

authorization requirements specified in TMPPM § 2.2.14.12.1 describe the

additional documentation required to demonstrate that the client can operate and care

for a custom power wheelchair. Appendix 5, DM-69. And, TMPPM § 2.2.14.12.5

lists more requirements for Group 4 power wheelchairs, as well as additional prior

authorization and documentation criteria. Appendix 5, DM-71. In particular,

TMPPM § 2.2.14.12.5 requires Puglisi to show when, where, and how she will be

using the Group 4 power wheelchair to perform certain Mobility Related Activities

of Daily Living (MRADLs) outside her home on a routine basis. Appendix 5, DM-

71.

      Based on the evidence presented by Molina Healthcare and Puglisi in the


                                         19
administrative record, the Hearing Officer determined that “Appellant was able to

maneuver a power wheelchair group 3 independently during the hearing.” A.R. at

334. In addition, the Reviewing Attorney determined that “Appellant presented

insufficient evidence that she would (a) routinely use the requested Group 4 power

wheelchair for mobility-related activities of daily living outside her home, (b)

routinely use the requested Group 4 wheelchair on rough or uneven surfaces, and (c)

encounter obstacles in excess of 2.25 inches.” A.R. at 345-46.

             a. A Group 4 PMD is not medically necessary to correct or
                ameliorate Puglisi’s medical need for mobility and
                independence.

      “Texas Medicaid defines DME as: Medical equipment or appliances that are

manufactured to withstand repeated use, ordered by a physician for use in the home,

and required to correct or ameliorate a client’s disability, condition, or illness.”

TMPPM § 2.2.2., Appendix 5, DM-13.             Additionally, the TMPPM states the

following:

      Since there is not single authority, such as a federal agency, that confers
      the official status of “DME” on any device or product, HHSC retains
      the right to make such determinations with regard to DME benefits of
      Texas Medicaid. DME benefits of Texas Medicaid must have either a
      well-established history of efficacy or, in the case of novel or unique
      equipment, valid, peer-reviewed evidence that the equipment corrects
      or ameliorates a covered medical condition or functional disability.



TMPPM § 2.2.2., Appendix 5, DM-13. This section of the TMPPM appears to


                                          20
define medical necessity to mean that requested DME is “required to correct or

ameliorate a client’s disability, condition, or illness.” In other words, the requested

DME cannot be requested as matter of convenience.

      In contrast, Puglisi’s description of medical necessity for the mobility base is

that it is “required to enable functions of the wheelchair as a whole and thus allow

Linda to maneuver within her home independently in a safe and reliable manner.”

A.R. at 190. However, a review of the administrative record shows that Molina

Healthcare determined that Puglisi failed to satisfy criteria to demonstrate medical

necessity for the Group 4 power wheelchair. Specifically, the record shows that

Molina Healthcare made a determination as follows:

      This request for a Group 4 custom power wheelchair cannot be
      approved. The group 4 power chair is requested in order to
      accommodate the Power Stand and Drive function; E2301 Power stand
      and drive feature is not considered medically necessary because driving
      standing up is not a medical necessity. In addition, HCPC code E2301
      is not a TMHP payable code/covered benefit. A dynamic stander can
      be requested with submission of appropriate clinical information. A
      group 4 power wheelchair cannot be approved because a Group 3 power
      wheelchair will meet the member’s needs for mobility and
      independence.

A.R. at 27. Also, Molina Healthcare stated that “[t]his request of a custom power

wheelchair cannot be approved because criteria for Medical Necessity are not met.”

A.R. at 57. Molina Healthcare’s Rehab Review notes state the following:



      The difference between the grp 3 & 4 are very specifically for rugged
                                          21
      outdoor use and not necessarily a medical necessity. They have
      additional capabilities that are not necessary for in home use. The
      requested power stander only comes with a group 4 PMD. But if the
      specific advantages of the group 4 are not a medical necessity it is
      recommended that this be down coded to a group 3 K0861.

A.R. at 140. Additionally, Molina Healthcare states that the “Group 4 Power

Mobility Device (PMD) K0884 cannot be approved because a Group 3 power

wheelchair will meet the member’s needs for mobility and independence; . . . .”

A.R. at 167. Moreover, Molina Healthcare asked Puglisi to “[p]lease replace the

group4 PMD with a group3 PMD. As the group 3 PMD will accommodate all the

listed medical needs for Linda.” A.R. at 201.

            b. Puglisi’s documentation failed to satisfy the prior authorization
               criteria described in TMPPM § 2.2.14.12.5.

      When asked to describe the medical necessity for the Group 4 power

wheelchair and power seat elevation system, Puglisi responded that “Permobile

C500 VS Stander power mobility base, required to enable functions of the

wheelchair as a whole and thus allow Linda to maneuver within her home

independently in a safe and reliable manner.” (Emphasis added) A.R. at 190. In

addition, when asked to describe the medical necessity for the Group 4 power

wheelchair versus a manual wheelchair, Puglisi replied that “[w]ith a power seating

system of this kind, Linda will be able to provide for her mobility and functional

needs to access items and perform ADL and household tasks in a safe and effective

manner.” (Emphasis added) A.R. at 193. In short, Puglisi’s documentation failed
                                        22
to address the prior authorization criteria described in TMPPM § 2.2.14.12.5.

Appendix 5, DM-71. As a result, Molina Healthcare could not approve Puglisi’s

request for a Group 4 power wheelchair.

            c. Exceptional circumstances review of Puglisi’s request for a
               group 4 power wheel chair is not required because it is listed
               DME.

      Exceptional circumstances review applies to unlisted DME. See 1 TAC

§ 354.1039(a)(4)(D). Specifically, power wheelchairs (code number K0884) are

listed. See TMPPM § 2.2.14.26, Appendix 5, DM-84. Exceptional circumstances

review, therefore, was not warranted in this case because power wheelchairs are

listed as covered DME.

      2. The integrated standing feature is not a covered reimbursable benefit,
         therefore, it should not be considered medically necessary,
         appropriate, or prior authorized.

      Puglisi asserts that certain “state definitions of wheeled mobility systems

establish the scope of Medicaid coverage of custom power wheelchairs and do not

authorize the exclusion of custom wheelchair components that may be medically

necessary for individuals with certain disabilities or medical conditions.” C.R. at

59. Puglisi’s assertion is based on two significant assumptions. Specifically,

Puglisi incorrectly assumes that the integrated standing feature is a covered and

reimbursable benefit. In addition, Puglisi erroneously assumes that, even if it were

deemed a covered reimbursable benefit, the integrated standing feature would be


                                          23
medically necessary, appropriate, and prior authorized.

      Regardless, TMPPM § 2.2.14.22 provides a less costly, yet equally effective,

alternative to the excluded mobile power stander. Appendix 5, DM-78.        TMPPM

§ 2.2.14.22 provides as follows:

      A stander is a device used by a client with neuromuscular conditions
      who is unable to stand alone. Standers and standing programs can
      improve digestion, increase muscle strength, decrease contractures,
      increase bone density, and minimize decalcification (this list is not all
      inclusive).

Appendix 5, DM-78. It is no small coincidence that the fact that the benefits

associated with the stand-alone dynamic stander are similar to the alleged benefits

associated with the mobile stander. The significant difference, however, is that the

stand-alone dynamic stander is on the list for covered DME whereas the mobile

stander is on the list of DME excluded from coverage. Therefore, Puglisi should

have requested the stand-alone dynamic stander to meet her medical mobility needs.

            a. Mobile power standing systems are not a covered benefit
               pursuant to TMPPM § 2.2.14.26.

      Pursuant to its regulatory authority under 1 TAC § 354.1039(a), HHSC has

determined that mobile standers are not a covered benefit. Specifically, TMPPM

§ 2.2.14.26 provides that “. . . [m]obile standers, power standing systems on a

wheeled mobility . . .” are not a benefit of Home Health Services. Appendix 5, DM-

89. Accordingly, Molina Healthcare denied Puglisi’s request for the integrated

standing feature.   A.R. at 27.    In addition, the Hearing Officer adopted the
                                         24
Reviewing Attorney’s conclusion that “[b]ecause power standers on wheeled

mobility systems are specifically excluded from coverage under Texas Medicaid

Home Health Services, Molina’s decision to deny the requested Group 4 power

wheelchair with an integrated standing feature was supported by the facts and

applicable laws, procedures, and program rules.” A.R. at 349.

      Regardless, TMPPM § 2.2.14.22 provides a less costly, yet equally effective

alternative to the excluded mobile power stander. Appendix 5, DM-78. As to the

reasonableness of HHSSC’s categorical exclusion of certain DME (i.e. ceiling lifts),

the Fifth Circuit recently stated the following:

      It is hardly unreasonable for a state to exclude—even categorically—
      any medical device whose purpose can be served by a more cost-
      effective method. Not only has Texas not violated the plain language
      of the statute, but also the reasonableness standard in the text likely
      supports its imposition of reasonable categorical exclusions. The
      plaintiffs’ notion that it would be unreasonable for a state not to provide
      particular equipment within its definition of DME sounds plausible,
      except that the state can choose by definition to exclude ceiling lifts.
      FN6. Moreover, a categorical exclusion based on the availability of
      cost-effective alternatives cannot mean that the state has denied a
      medically necessary device, even if the statute did impose such a
      standard.

Detgen ex. rel. v. Janek, 752 F.3d 627, 632 (5th Cir. 2014) (Medicaid recipient

brought suit against HHSC challenging the denial of their request for the installation

of ceiling lifts to transfer the recipient to and from bed, bath, etc.). See Appendix 8.



             b. Puglisi did not request exceptional circumstances review of her
                                          25
                  request for an integrated standing feature.

      Exceptional circumstances review applies to unlisted DME. See 1 TAC

§ 354.1039(a)(4)(D). Arguably, mobile power standers are listed as excluded from

DME coverage.           See TMPPM § 2.2.14.26, Appendix 5, DM-89.           Hence,

exceptional circumstances review may not be warranted in this case because mobile

power standers are listed as excluded non-reimbursable DME.

      On the other hand, even if mobile power standers are considered to be unlisted

DME, the record shows that Molina Healthcare determined that the mobile stander

was not medically necessary. Specifically, Molina Healthcare’s Rehab Reviewer

states the following:

      The provider has offered very detailed benefits of standing. They note
      that the member is unable to reap these benefits unless they have the
      stander on their chair to go with them everywhere. Having a separate
      stander would provide great benefits in standing as would its inclusion
      on the power chair Most plans will provide the least costly alternative
      and that would be to provide a separate standing device. This final
      decision is up to Molina to interpret.

A.R. at 140. Accordingly, Molina Healthcare’s Nurse Review states the following

interpretation:

      Request for E2301 should be denied as this is not a tmhp payable code,
      the vendor should possibly resubmit for an independent stander if
      deemed necessary. As the standing feature with code e2301 is not
      available mbr could be downgraded to the group 3 pwc instead of the
      group 4 as requested.

A.R. at 141. Hence, Molina Healthcare’s Medical Doctor concluded as follows:


                                         26
      The group 4 power chair is requested in order to accommodate the
      Power Stand and Drive function; E2301 Power stand and drive feature
      is not considered medically necessary because driving standing up is
      not a medical necessity. In addition, HCPC code E2301 is not a
      TMHP payable code/covered benefit.

A.R. at 144. Based on statements of Molina Healthcare’s Rehab Review, Nurse

Review, and Medical Doctor Review, the Hearing Officer determined the following:

      On or about June 4, 2013, Molina Healthcare forwarded the DME
      request to Rehab Review for a third party review for medical necessity
      of the DME requested. Rehab Review is a Rehabilitation Engineering
      and Assistive Technology Society (RESNA) certified entity contracted
      to conduct independent reviews for medical necessity of DME.

       ...

      Appellant requires maximum assistance with all activities of daily
      living including transfers. Appellant requires caregiver assistance to
      transfer in and out of her bed and wheelchair.

      Molina healthcare recommended approval of a group 3 power
      wheelchair with a stand-alone dynamic stander to meet the Appellant’s
      needs; however Appellant is unable to transfer independently and
      would require assistance from one or two caregivers to transfer to the
      dynamic stander.

A.R. at 334.     Puglisi needs maximum assistance from her caregivers for all

MRADLs. Therefore, a mobile stander is not medically necessary to correct or

ameliorate Puglisi’s disability, condition, or illness, given that her caregivers are

already assisting her with all transfers and standing.

             c. Koenning v. Suehs was vacated and dismissed as moot, therefore
                Puglisi’s reliance on this case is misplaced.



                                          27
      Nevertheless, Puglisi asserts that the integrated standing feature should be a

covered benefit merely because its meets the general definitions of DME described

in 1 TAC § 354.1031(12) and TMPPM § 2.2.14.6. But, Puglisi relies on a vacated

opinion and judgment to support her erroneous proposition. See Koenning v. Suehs,

897 F.Supp.2d 528, 549 (S.D. 2012), vacated and dismissed as moot, Koenning v.

Janek, 539 Fed.Appx. 353, (5th Cir. 2013). Appendix 7. In Koenning v. Suehs,

the Court states the following:

      The district court opinion and judgment contain meaningful errors.
      For example, the district court opinion incorrectly states that Texas law
      does not provide for state court review of adverse administrative
      hearing decisions. The district court opinion and judgment also
      purport to ‘remand’ the case to a non-state, non-party entity (namely,
      THMP [sic]) however, the parties agree that such a remand is improper.
      Finally, although the district court opinion orders declaratory and
      injunctive relief, its judgment does not. Thus, uncertainty exists about
      the relief that is in effect. For these reasons, we conclude that the
      public interest supports vacating the district court’s opinion and
      judgment.

Id.   In subsequent litigation, the trial court stated that “[d]espite Plaintiff’s

assertions to the contrary, the Fifth Circuit did not vacate the Court’s Opinion and

Judgment because they were moot.” See Koenning v. Suehs, Civil Action No. V-11-

5, 2013 WL 6491075, at *1 (S.D. Tex. Dec. 9, 2013). “The Fifth Circuit vacated

the Court’s Opinion and Judgment because they were erroneous.” Id. Appendix 7.

Therefore, Puglisi’s reliance on Koenning v. Suehs is misplaced and has no merit.




                                         28
             d. CMS policy letters and recent federal case law support exclusion
                of mobile power standers.

      Puglisi alleges that “THHSC erred in concluding that the standing feature of

the recommended wheelchair is not covered by Medicaid by relying on unlawful

TMHP policy that violate both federal and state Medicaid requirements and the

Texas APA.”      C.R. at 54, 60. TMPPM § 2.2.14.26, however, does not violate

federal and state Medicaid requirements because “[a] State may develop a list of pre-

approved items of ME [Medical Equipment] as an administrative convenience

because such a list eliminates the need to administer an extensive application process

for each ME request submitted.”        See CMS letter dated September 4, 1998,

Appendix 6. Moreover, CMS guidance provides that:

       . . . [A] State will be in compliance with federal Medicaid requirements
      only if, with respect to an individual applicant’s request for an item of
      ME, the following conditions are met:

   • The process is timely and employs reasonable and specific criteria by
     which an individual item of ME will be judged for coverage under the
     State’s home health services benefit. These criteria must be
     sufficiently specific to permit a determination of whether an item of
     ME that does not appear on a State’s pre-approved list has been
     arbitrarily excluded from coverage based solely on a diagnosis, type of
     illness, or condition.

   • The State’s process and criteria, as well as the State’s pre-approved list
     of items, are made available to beneficiaries and the public.

   • Beneficiaries are informed of their right under 42 C.F.R. Part 431
     Subpart E, to a fair hearing to determine whether an adverse decision is
     contrary to the law cited above.

                                         29
See CMS letter dated September 4, 1998, Appendix 6. In addition to the federal

guidance described in the Desario Letter, Detgen v. Janek provides that: “[t]he rule

the court employs is this: where a State has explicit guidance from CMS that FFP

will not be available for an item of DME, that State acts reasonably when it

categorically excludes such an item from coverage in its Medicaid policies.”

Detgen v. Janek, 945 F.Supp.2d 746, 759 (N. D. Tex. 2013) (“The court finds that

Texas Medicaid’s policy categorically excluding ceiling lifts from coverage does not

conflict with the Medicaid Act’s ‘reasonable standards’ requirement, the ‘amount,

duration, and scope’ regulation, or the Desario letter’s guidance.”). Appendix 12.

Furthermore, recent CMS guidance provides that “items of DME meeting the state’s

definition of coverage is to be provided to individuals (of any age) meeting the

State’s medical necessity criteria.” See CMS letter dated May 21, 2013 (“This

means that medically necessary ceiling lifts will be reimbursed by CMS as part of

the Texas home health benefit if these lifts meet the state’s definition of DME

[coverage].” (Emphasis added).        A.R. at 303.     HHSC’s exclusion of mobile

standers, therefore, is consistent with state and federal statutes, rules, and guidance.

             e. Puglisi’s Texas Government Code § 2001.038 rule challenge
                lacks merit.

                    i. Puglisi cannot maintain an action for declaratory relief.

      Contrary to Puglisi’s assertions, 1 TAC §§ 354.1031, .1035, .1039, .1040 and

TMPPM § 2.2.14.26 do not violate the Texas Administrative Procedure Act (APA).

                                          30
Puglisi’s request that the trial court declare 1 TAC §§ 354.1031, .1035, .1039, .1040

and TMPPM § 2.2.14.26 invalid is in essence a request for declaratory relief under

Tex. Gov’t Code § 2001.038 to modify the Medicaid Home Health Services

program. C.R. at 60-63. Bringing a § 2001.038 challenge in this judicial review

action under Tex. Gov’t Code §§ 531.019 and 2001.171 fails because the claim has

been brought after HHSC entered its final administrative orders in the underlying

administrative proceeding. Puglisi’s remedy, if any, should be limited to remand

or reversal of the administrative orders denying her request for Home Health

Services program services.

      A § 2001.038 challenge brought after the entry of a final agency order in a

§ 2001.171 proceeding must be dismissed unless the party seeks to foreclose

separate, future administrative proceedings by obtaining declaratory relief. This

result is mandated by (1) the text of § 2001.038, (2) the Court’s precedent governing

the justiciability of § 2001.038 claims, and (3) the redundant-remedies and

separation-of-powers doctrines.

                   ii. Section 2001.038 allows suits for declaratory relief only
                   before a final order issues in a contested case.

      The text of Tex. Gov’t Code § 2001.038 limits the subject matter of any

declaration, but it places no additional procedural limitations on suit. E.g., Keeter

v. Tex. Dep’t of Agric., 844 S.W.2d 901, 902 (Tex. App.—Austin 1992, writ denied)

(contrasting the APA procedural requirements for declaratory-judgment with the
                                         31
exhaustion requirement in a suit for judicial review).      The plain language of this

section demonstrates that the legislature intended to restrict the scope of declaratory

relief to a limited set of legal questions, with few procedural requirements. If a

contested-case proceeding is involved, a § 2001.038 declaratory relief must be

sought before the final administrative order issues.

Section 2001.038 provides:

      The validity or applicability of a rule . . . may be determined in an action
      for declaratory judgment if it is alleged that the rule or its threatened
      application interferes with or impairs, or threatens to interfere with or
      impair, a legal right or privilege of the plaintiff.

Tex. Gov’t Code § 2001.038 (emphasis added).                Section 2001.038 allows

challenges based only on the “validity or applicability” of a “rule.”           Thus, a

§ 2001.038 claim is limited to legal issues regarding an administrative –rule—it is

not a mechanism for reviewing an agency’s compliance with the APA. Friends of

Canyon Lake v. Guadalupe-Blanco River Auth., 96 S.W.3d 519, 529 (Tex. App.—

Austin 2002, pet. Denied); see also Star Houston, Inc. v. Tex. Dep’t of Transp., 957

S.W.2d 103, 111 (Tex. App.—Austin 1997, pet. denied) (illustrating that section

2001.038 does not allow courts to enforce § 2001.054 of the APA). And this

challenge must both (1) relate to a “rule or its threatened application” and (2) be

limited to “validity or applicability” rather than the rule’s application.           This

language emphasizes that § 2001.038 is focused on pre-enforcement legal questions.

If the statute were designed to review the outcome of a particular contested-case
                                          32
proceeding, the legislature would have used the word application, rather than the

word applicability. A court has power to determine only the applicability of a rule

whose application is threatened, not to issue a declaration regarding the impact of a

rule on a particular, already-complete contested-case proceeding.

       Section 2001.038 must also be read in line with the APA’s statutory

definitions. See Tex. Gov’t Code § 311.021(2). The statutory definition of the

term “rule” defines the scope of a rule in terms of “applicability.” See Tex. Gov’t

Code § 2001.003(6)(A) (rule is a “statement of general applicability.”).               This

language further confirms that “applicability” refers to the prospective scope of a

rule’s effect, not to its application in a particular contested-case proceeding. See id.

§ 2001.003(1).

       The Third Court of Appeals has recognized that § 2001.038 allows a rule

challenge before the rule is applied. E.g., Rutherford Oil Corp. v. Gen. Land Office,

776 S.W.2d 232, 235 (Tex. App.—Austin 1989, no writ) (“The purpose of this

statute is to obtain a final declaration of a rule’s validity before the rule is applied.”).

The statute removes any need to wait until a rule is actually applied before

challenging it—thus it addresses applicability, not application, of rules. See State

Bd. of Ins. v. Deffebach, 631 S.W.2d 794, 797 (Tex. App.—Austin 1982, writ ref’d

n.r.e.).   But apart from these limits on subject matter, the provision has no strict

procedural requirements and does not require exhaustion of administrative remedies.


                                            33
Tex. Gov’t Code § 2001.038(d) (allowing declaration regardless of whether plaintiff

asked the state agency to rule on the rule’s validity or applicability); see, e.g., Tex.

Dep’t of Licensing & Regulation v. Roosters MGC, LLC, No. 03-09-00253-CV,

2010 WL 2354064, at * 6 (Tex. App.—Austin June 10, 2010, no pet.) (mem. op.)

(Correctly finding jurisdiction absent exhaustion of administrative remedies where

plaintiff was not a party to pending or concluded administrative proceedings).

Allowing declaratory judgments regarding the application of a rule in a particular

case would frustrate the Legislature’s intent in both adopting § 2001.038 and placing

a strict exhaustion requirement on § 2001.171 suits, because a § 2001.038 claim

would be available to reverse the application of a rule in a particular contested-case

proceeding.

      By contrast to § 2001.038’s low procedural hurdles and narrow legal scope,

§ 2001.171 includes a strict, jurisdictional exhaustion requirement, but allows a

plaintiff to raise “any” legal error related to a particular administrative order. Tex.

Gov’t Code §§ 2001.171 and 2001.174(D); e.g., Tex. Water Comm’n v. Dellana, 849

S.W.2d 808, 810 (Tex. 1993) (per curiam). If a plaintiff seeks only to change the

outcome of a particular administrative proceeding, therefore, he cannot do so in a

§ 2001.038 challenge to the rules underlying the decision because the only object he

can challenge is the agency’s application of the rule. Charlie Thomas Ford v. A.C.

Collins Ford, 912 S.W.2d 271, 275 (Tex. App.—Austin 1995, writ dism’d) (“A


                                          34
declaratory judgment, as to the validity or applicability of the rule in question, cannot

have legal effect outside the context of Collins’s contested case and its suit for

judicial review of the Commission’s final order in the case. That case has been

decided . . . .” (internal citations omitted)); see also Lopez v. Pub. Util. Comm’n, 816

S.W.2d 776, 782 (Tex. App.—Austin 1991, writ denied) (concluding that

administrative rule applying only in the context of a contested-case proceeding

cannot be challenged after a final order is entered). This makes practical sense

because the agency retains jurisdiction to change the outcome of an administrative

proceeding until the final order issues.

      Taken together, the text of the two provisions confirms that a § 2001.038

claim must be brought before a party’s claims become subject to a final

administrative order. A rule cannot be challenged under § 2001.038 unless, on its

face, its threatened application impairs a protected right or privilege. By contrast,

once a final contested-case order is entered, the proper review mechanism is a

§ 2001.171 claim, which Puglisi has brought in this instance through Tex. Gov’t

Code § 531.019.      This relationship is useful because § 2001.038 provides a

mechanism to avoid contested-case proceedings entirely, or to obtain legal guidance

on pure issues of law before an administrative proceeding on particularized facts.

It is, thus, appropriate in some cases to abate a contested-case proceeding—or an

entire category of proceedings—while waiting for final resolution of a § 2001.038


                                           35
suit. See, e.g., All Saints Health Sys. v. Tex. Workers’ Comp. Comm’n, 125 S.W.3d

96, 101–02 (Tex. App.—Austin 2003, pet. denied), abrogated on other grounds by

HHSC v. El Paso County Hospital District, 351 S.W.3d 460 (Tex. App.—Austin,

2011), aff’d, 400 S.W.3d 72 (Tex. 2013).

      But the legislature did not intend for § 2001.038 claims to serve as a basis for

delaying or abating all contested-case proceedings. Subsection (e) provides that a

declaratory-judgment action may not be “used to delay or stay a hearing in which a

suspension, revocation, or cancellation of a license by a state agency is at issue

before the agency after notice of the hearing has been given.” Tex. Gov’t Code

§ 2001.038(e).    Subsection (e) thus recognizes that, in administrative proceedings

that do not involve license revocation, it is entirely appropriate to file a § 2001.038

suit before a final order is entered, and the administrative body has discretion to

abate the proceeding. If the two procedures were intended to run simultaneously,

subsection (e) would not limit the availability of pre-final-order declaratory-

judgment claims for licensing proceedings.

Section 2001.038 limits the immunity waiver for validity or applicability claims to

those brought before a rule is applied because application of the rule must be

threatened—not actual. An administrative body has authority to abate a pending

proceeding that involves a rule until a court resolves a simultaneous § 2001.038

action, except in license-revocation proceedings.        But, absent abatement, the


                                          36
agency has authority to resolve a particular contested case and moot a pending rule

challenge. Once a party’s interest is reduced to a final administrative order, any

legal challenge to that –order—including a challenge to the rules applied in the

order—must be contained within the procedural mechanism for challenging the

application of administrative rules: a suit for judicial review under § 2001.171 or, in

this case, under Tex. Gov’t Code § 531.019.

                    iii. Legal precedent confirms that declaratory relief is
                    available to challenge a rule in general but unavailable to
                    alter the application of a rule after the fact.

      Section 2001.038 justiciability precedent confirms HHSC’s plain-text

argument. A plaintiff cannot participate in a contested case until its conclusion,

then use § 2001.038 to circumvent the APA’s procedural requirements, even to raise

a pure question of law. E.g., Chocolate Bayou Water Co. & Sand Supply v. Tex.

Natural Res. Conservation Comm’n, 124 S.W.3d 844, 852–53 (Tex. App.—Austin

2003, pet. denied) (holding that exceptions to exhaustion-of-administrative-

remedies doctrine do not apply when a party waits until after the issuance of a final

order following a long contested-case proceeding in which the claim could have been

raised). This is because the entry of a final administrative order, in most cases,

moots the claim for declaratory relief. E.g., KEM Tex. Ltd. v. Tex. Dep’t of Transp.,

No. 03-08-00468-CV, 2009 WL 1811102, at *6 n.6 (Tex. App.—Austin June 26,

2009, no pet.) (mem. op.); Friends of Canyon Lake, 96 S.W.3d at 529; Charlie


                                          37
Thomas Ford, 912 S.W.2d at 275. Section 2001.038 gives courts authority to make

declarations about administrative rules, but not to raise unexhausted issues parallel

to a suit for judicial review. Lopez, 816 S.W.2d at 782 (“Even if the district court

should declare the validity or applicability of [the administrative rule] that court

would be powerless to revive in some manner the plaintiffs’ appeal [from final

administrative order], the only context in which the court’s declaratory judgment

could have legal effect.”). The entry of a particularized order allows a challenge

under § 2001.171, while § 2001.038 is limited to rule challenges before a

particularized order is entered or when an agency decision is governed by an

administrative rule, but does not proceed through a contested-case proceeding.

Precedent on mootness follows the same trajectory as the limits set on § 2001.038

by its own text -- declaratory relief is available to attack a rule in general, but not to

change the application of a rule in a particular administrative proceeding.

                    iv. The redundant remedies and separation-of-powers
                    doctrines negate Puglisi’s ability to bring a § 2001.038 claim
                    in this suit.

      The Third Court of Appeals has long recognized the “redundant remedies”

doctrine, under which a declaratory judgment action “will not lie” if it is redundant

to another statutory cause of action. E.g., Beacon Nat’l Ins. Co. v. Montemayor, 86

S.W.3d 260, 267 (Tex. App.—Austin 2002, no pet.).               The Court applies this

doctrine to the relationship between § 2001.038 and § 2001.171 claims. SWEPI LP


                                           38
v. R.R. Comm’n, 314 S.W.3d 253, 269-270 (Tex.App.—Austin 2010, pet. Denied)

(“A declaratory judgment claim ‘will not lie’ when it is ‘redundant’ of a parallel

administrative appeal and the ‘remedy under APA is same as that provided under

the [Act]’--reversal of the agency’s final order.”). A § 2001.038 claim is redundant

to a § 2001.171 claim that could address the same legal argument and, therefore, will

not lie.

       Application of the redundant remedies rule to § 2001.038 claims makes sense.

Because a § 2001.171 proceeding provides the appropriate mechanism for

vindicating a plaintiff’s legal issues with regard to a particular administrative

dispute, any § 2001.038 claim is redundant to the § 2001.171 proceeding from the

time the agency enters its final administrative order. The standard of review set out

in § 2001.174 encompasses every legal error that could be challenged in a

§ 2001.038 hearing because that standard allows reversal based on any legal error.

See Tex. Gov’t Code § 2001.174(2)(D). Thus, a § 2001.171 suit necessarily includes

any issue regarding the validity or applicability of a relevant administrative rule—

rendering a § 2001.038 claim redundant to such a challenge to the outcome of a

particular contested-case proceeding.

       The rule that judicial interference in administrative proceedings is limited to

a suit for judicial review once a final administrative order has been entered derives,

likewise, from the background separation-of-powers principles undergirding Texas


                                          39
administrative practice. See Roosters, 2010 WL 2354064, * 4 (citing Tex. Comm’n

of Licensing & Regulation v. Model Search Am., Inc., 953 S.W.2d 289, 291-293

(Tex. App.—Austin 1997, no writ) (distinguishing a suit for declaration regarding

the scope (applicability) of a rule from a judicial attack on a final contested-case

order). With a few exceptions, there is no background right to judicial review of

particular administrative orders for the very reason that executive-branch

determinations should not be determined by the courts de novo. See Model Search,

953 S.W.2d at 291–92. (“The separation of government powers mandated in the

State constitution forbids a court to review the actions of an administrative agency

unless the legislature has, in a proper statute, authorized a cause of action for that

purpose or the plaintiff complains the agency action is ultra vires or unconstitutional

in its effect upon the plaintiff or his property.”).        Stretching § 2001.038 to

encompass any and all claims a plaintiff might bring parallel to his contested-case

suit for judicial review would ignore this background principle.

      Put another way, the only mechanism the Legislature has provided for a court

to reverse an agency’s actions in a particular case is § 2001.171. Section 2001.171

provides a judicial mechanism for changing a particular administrative outcome.

Section 2001.038, by contrast, does not confer jurisdiction to challenge the outcome

of an agency proceeding or to determine whether its order comports with the APA.

It allows a declaratory judgment regarding only the validity or applicability of a rule.


                                          40
Once a final administrative order is in place, therefore, § 2001.038’s text does not

give a court authority to change the result of an already-final contested-case

proceeding because a declaratory judgment about a rule has nothing to do with the

outcome of a contested-case proceeding.

      For the foregoing reasons, to the extent that Puglisi is seeking declaratory

relief under Tex. Gov’t Code § 2001.038 by asking the Court to declare the DME

requirements unconstitutional and to modify the Home Health Services program

eligibility requirements, such relief must fail.

      3. In this case, a power seat elevation system is not medically necessary,
         appropriately documented, or prior authorized.

      There is no dispute that a power seat elevation system is a covered Medicaid

home health benefit in Texas. Specifically, 1 TAC §§ 354.1031, .1035, and .1039

as well as applicable Texas Medicaid Provider Procedures establish and explain the

“authorization requirements” and “limitations” for power seat elevation system.

Accordingly, applicable agency rules unequivocally provide that covered and

reimbursable DME must be medically necessary, that the appropriateness of the

DME must be documented in the request form, and that the requestor must obtain

prior authorization. 1 TAC § 354.1039(a)(4)(A).

      Moreover, the Texas Medicaid Provider Procedures Manual (TMPPM)

consistent with the dictates of the Desario Letter, describes “reasonable and specific

criteria” for medical necessity, proper documentation, and prior authorization of
                                           41
power seat elevation systems. TMPPM § 2.2.14.15.1 shows the following:

         • A power seat elevation system may be prior authorized to
           promote independence in a client who meets all of the following
           criteria:

         • The client does not have the ability to stand or pivot transfer
           independently.
         • The client requires assistance only with transfers across unequal
           seat heights, and as a result of having the power seat elevation
           system, the client will be able to transfer across unequal seat
           heights unassisted.

         • The client has limited reach and range of motion in the shoulder
           or hand that prohibits independent performance of MRADLs
           (such as, dressing, feeding, grooming, hygiene, meal preparation,
           and toileting).

Appendix 5, DM-75.          In addition, TMPPM § 2.2.14.15.2 describes the

documentation necessary to demonstrate “how the power seat elevation system will

improve the client’s function.” Appendix 5, DM-75.

      Based on the evidence presented by Molina Healthcare and Puglisi in the

administrated record, the Hearing Officer determined the following:

      Appellant requires maximum assistance with all activities of daily
      living including transfers.
       ...
      Appellant requires caregiver assistance to transfer in and out of her bed
      and wheelchair.
       ...
      Appellant would not be able to transfer across unequal seat heights
      unassisted by using a power seat elevation system.




                                         42
A.R. at 334. In addition, the Reviewing Attorney determined that “[a]ppellant is

unable to transfer independently even with the assistance of a power seat elevation

system.” A.R. at 345.

                a. Puglisi failed to satisfy the requirements of medical necessity
                and prior authorization for the requested power seat elevation
                system.

      As stated previously, “Texas Medicaid defines DME as: Medical equipment

or appliances that are . . . required to correct or ameliorate a client’s disability,

condition, or illness.” TMPPM § 2.2.2, Appendix 5, DM-13. In contrast, Puglisi’s

description of medical necessity for the power seat elevation system is as follows:

       . . . required when using the standing feature. Power seat elevator will
      also decrease caregiver burden when assisting the patient with lateral
      transfers by adjusting the seat height to make transfer downhill. The
      seat elevator allows for Linda to access items in upper cabinets and
      countertops that she would otherwise be unable to reach. Patient may
      also use seat elevator to improve independence with and functional
      reach activities as her neurological function continues to improve.

A.R. at 191.    However, a review of administrative record shows that Molina

Healthcare determined that Puglisi failed to satisfy criteria to demonstrate medical

necessity for the power seat elevation system. Specifically, the record shows that

Molina Healthcare made the following determination:

      A E2300/power seat elevator cannot be approved as medical necessity
      cannot be established. According to the Texas Medicaid Provider
      Procedure Manual Section 2.2.14.15 regarding the power seat elevator
      system, a power seat elevator may be approved when it will facilitate
      independent transfers, particularly uphill transfers, to and from the
      wheelchair and augment the client’s reach to facilitate independent
                                         43
      performance of mobility related activities of daily living in the home.
      The clinical information submitted indicates that you require maximum
      assistance in all activities of daily living and you are unable to perform

      mobility related activities of daily living independently.      The
      documentation submitted did not indicate how the power seat elevator
      system would promote independence. Therefore, the guidelines for
      coverage of this equipment are not met.

A.R. at 27. Also, Molina’s Rehab Review notes state the following:

      The vendor has listed out the specific reasons that a seat elevator is
      needed but has not provided specific activities that this member will
      encounter that require this function. The generic information is good
      but we still do not see how it applies directly to the member.

A.R. at 140.    In short, Puglisi’s documentation failed to address the medical

necessity and prior authorization requirements authorized in 1 TAC §§ 354.1035,

.1039, and described in TMPPM § 2.2.14.12.5. As a result, Molina Healthcare

could not approve Puglisi’s request for a power seat elevation system.

                b. Exceptional circumstances review for the requested power
                seat elevation system is not required in this case.

      Exceptional circumstances review applies to unlisted DME. See 1 TAC

§ 354.1039(a)(4)(D). Specifically, power seat elevation systems (code number

E2300) is listed. See TMPPM § 2.2.14.26, Appendix 5, DM-86. Exceptional

circumstances review, therefore, was not warranted in this case because power seat

elevation systems are listed as covered DME.



F.    Puglisi received adequate due process relating to Molina Healthcare’s
                                         44
      denial of her request for Group 4 power wheelchair, integrated standing
      feature, and power seat elevation system.
      Puglisi alleges that the “denial notice issued by Molina did not comport with

federal Medicaid requirements because it failed to include the required specificity as

to the reasons Molina contended that the standing feature was not a covered benefit

and why the recommended wheelchair was not medically necessary for Linda.”

C.R. at 75. In addition, Puglisi alleges that “THHSC’s attorney cannot supplement

Molina’s bases for denial after the hearing to further bolster the agency’s decision.”

C.R. at 76. These claims are not meritorious because Puglisi lacks a protected

property interest in the DME she was denied, and she received all the process that

she was due.

      1. Puglisi has no protected due process right to Home Health Services
         program services because the program’s existing rules do not confer a
         protected interest in Medicaid benefits to her.

      To have a substantive due process right, an individual must show they have a

protected interest. Liberty Mut. Ins. Co. v. Texas Dep't of Ins., 187 S.W.3d 808, 827

(Tex. App.—Austin 2006, pet. denied); citing Neuwirth v. La. State Bd. of Dentistry,

845 F.2d 553, 558 (5th Cir.1988), Woody v. Dallas, 809 F.Supp. 466, 473 (N.D.Tex.

1992). To have a protected interest, the individual must have a legitimate claim of

entitlement, which is more than a unilateral expectation. Bd. of Regents v. Roth,

408 U.S. 564, 577 (1972). Further, property interests are created and defined by

existing rules or from independent sources like state law. Id. Importantly, to have


                                         45
an interest in a specific state created benefit, the individual must have already

acquired the benefit.    Woody 809 F.Supp. at 473; Tobias v. Univ. of Tex. at

Arlington, 824 S.W.2d 201, 208 (Tex.App.—Fort Worth 1991, writ denied).

      Here, Puglisi could not have acquired a protected interest in the requested

DME prior to satisfying all the necessary prerequisites for obtaining the requested

DME. Thus, Puglisi has no protected interest in Home Health Services program

services and her claim of a substantive due process right must fail. See Johnson v.

Guhl, 91 F.Supp.2d 754, 772 (D.N.J. 2000) (Plaintiffs who had never been granted

Medicaid benefits had no protected property interest in benefits they had never been

deemed qualified to receive.).

      2. Molina Healthcare’s denial notice is sufficient.

      Molina Healthcare’s denial notice sufficiently notified Puglisi of why her

request was denied, how much time she had to appeal the denial, who to call for help

understanding the denial, and who to call for low cost legal services. A.R. at 27–

29.   Specifically, Molina Healthcare’s notice of denial lists “Molina Member

Appeal Rights,” which include “You have the right to obtain a copy of the guidelines

used by MHT to decide the outcome.” A.R. at 28.

      3. The Reviewing Attorney fulfilled his statutory duties.

      Additionally, “[b]efore an applicant for or recipient of public assistance

benefits may appeal a decision of a hearing for the commission . . . , the applicant or


                                          46
recipient must request an administrative review by an appropriate attorney of the

commission or a health and human services agency, as applicable.” Tex. Gov’t

Code § 531.019(c) (West 2004 and Supp. 2009). Also, the Reviewing Attorney has

a statutory duty to complete “an administrative review of the decision and notify the

applicant or recipient in writing of the results of that review.” Tex. Gov’t Code

§ 531.019(e)(2) (West 2004 and Supp. 2009). Further, “[a]n administrative review

of a hearing decision is provided as set forth in §§ 357.701 – 357.703 of this chapter

(relating to Purpose and Application, Definitions and Process and Timeframes).” 1

TAC § 357.19(e).      Next, “[w]hen an administrative review is conducted, the

attorney makes the final decision for the HHS system agency and its designees.” 1

TAC § 357.703(5).

                        VIII. CONCLUSION & PRAYER

      The evidence supporting Molina Healthcare’s and HHSC’s decisions is not

only substantial but also probative and reliable because it is based upon indisputable

facts. In short, there is more than a mere scintilla of evidence in the record to

support the Hearing Officer’s and the Reviewing Attorney’s findings and

conclusions. After reviewing the whole record, reasonable minds can reach the

same factual and legal conclusions as the Hearing Officer and Reviewing Attorney.

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully asks that

this Court: a) reverse the trial court and dismiss this suit for lack of subject matter


                                          47
jurisdiction, b) reverse the trial court because Molina Healthcare and HHSC’s

decisions are supported by substantial evidence, or c) reverse and remand the case

to Molina Healthcare and HHSC to take additional evidence pursuant to Texas

Government Code § 2001.175.

                            Respectfully Submitted,

                            KEN PAXTON
                            Attorney General of Texas

                            CHARLES E. ROY
                            First Assistant Attorney General

                            JAMES E. DAVIS
                            Deputy Attorney General for Litigation

                            DAV ID A. TALBOT, JR.
                            Chief, Administrative Law Division

                            /s/ Eugene A. Clayborn
                            EUGENE A. CLAYBORN
                            State Bar No.: 00785767
                            Assistant Attorney General
                            Deputy Chief, Administrative Law Division
                            O FFICE OF THE A TTORNEY G ENERAL OF T EXAS
                            P.O. Box 12548, Capitol Station
                            Austin, Texas 78711-2548
                            Telephone: (512) 475-3204
                            Facsimile: (512) 320-0167
                            eugene.clayborn@ texasattorneygeneral.gov

                            Attorneys for Texas Health & Human Services
                            Commission



                                       48
                       CERTIFICATE OF COMPLIANCE

I certify that the brief submitted complies with Texas Rule of Appellate Procedure
9 and the word count of this document is 11,159. The word processing software
used to prepare this filing and calculate the word count of the document was
Microsoft Word 97-2003.

Dated: June 16, 2015


                                /s/ Eugene A. Clayborn
                                EUGENE A. CLAYBORN
                                Assistant Attorney General


                       CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing document has
been served on this the 12th day of June, 2015 on the following:


Maureen O’Connell                            Via: Electronic Service
State Bar No.: 00795949
S OUTHERN D ISABILITY L AW C ENTER
1307 Payne Avenue
Austin, Texas 78757
moconnell458@gmail.com
Attorneys for Appellee
                                      /s/ Eugene A. Clayborn
                                      EUGENE A. CLAYBORN
                                      Assistant Attorney General




                                        49
                     CASE NO. 03-15-00226-CV


                  IN THE COURT OF APPEALS
               FOR THE THIRD JUDICIAL DISTRICT
                      AT AUSTIN, TEXAS


             Texas Health & Human Services Commission,
                             Appellant,
                                  v.
                            Linda Puglisi,
                              Appellee.


            On Appeal from Cause No. D-1-GN-14-000381
          53rd Judicial District Court of Travis County, Texas
             Honorable Judge Gisela D. Triana Presiding.


                        APPELLANTS’ BRIEF


                             ACRONYMS

ADL                  Activity of Daily Living
APA                  Administrative Procedure Act
A.R.                 Administrative Record
CCP                  Comprehensive Care Program
CGC                  Celerian Group Company
CMS                  Centers for Medicare and Medicaid Services
C.R.                 Clerk’s Record
DME                  Durable Medical Equipment
DME MAC              Durable Medical Equipment Medicare Administrative
                     Contractor
DMEPOS               Durable Medical Equipment, Prosthetics, Orthotics, and
                     Supplies
DOS                  Date of Service
FFP                  Federal Financial Participation

                                   50
grp            Group
mbr            Member
MCO            Managed Care Organization
ME             Medical Equipment
MHT            Molina Healthcare of Texas
MRADL          Mobility Related Activities and Daily Living
MQMB           Medicaid Qualified Medicare Beneficiary
PMD            Power Mobility Device and/or Power Wheeled Mobility
               System
pwc            Power Wheel Chair
QRP            Qualified Rehabilitation Professional
THHSC / HHSC   Texas Health and Human Services Commission
THMP           ([sic])
TMHP / tmhp    Texas Medical Health Partnership
TMPPM          Texas Medicaid Providers Procedures Manual




                            51
                        CASE NO. 03-15-00226-CV
    ___________________________________________________________
                      IN THE COURT OF APPEALS
                  FOR THE THIRD JUDICIAL DISTRICT
                            AT AUSTIN, TEXAS
   ____________________________________________________________
               Texas Health & Human Services Commission,
                                   Appellant,
                                      v.
                                 Linda Puglisi,
                                   Appellee.
   ____________________________________________________________
               On Appeal from Cause No. D-1-GN-14-000381
             53rd Judicial District Court of Travis County, Texas
                Honorable Judge Gisela D. Triana Presiding.
   ____________________________________________________________
                           APPELLANT’S BRIEF
 _________________________________________________________________

                             APPENDICES

No. 1.    Molina Healthcare’s Decision
No. 2     Fair Hearing Decision
No. 3     Reviewing Officer’s Decision
No. 4     Relevant Texas Administrative Code Provisions
No. 5     Relevant Texas Medicaid Provider Procedure Manual Provisions
No. 6     Desario Letter
No. 7     Koenning v. Suehs Case
No. 8     Detgen v. Janek 5th Cir. Case
No. 9     Order Denying Motion To Dismiss
No. 10    Final Judgment
No. 11    DME Medicare Administration Contractor
No. 12    Detgen v. Janek U.S.D.C. – N.D., Texas Case




                                   52
APPENDIX 1
      San Antonío' TX 78216
_-(4:t+>665-4G22-

                                                                                                   Data: 61612013
       LfSA R WENZEL MD
      Po Box 200901
      I{ousto¡t. TX7'1216



       MembcrNatnc: LINDA MYSTINE PUGLISI
       DOB:-
       Msmbcr ldentilìcation Numbor:                 lff
       Primary Care Physician: ANUSUYA N SENDOS MD
                                                                       backestand leg               ref.   batterics, footplatcs, joystlck and mounring
       Rcqucstcd service(s): c.up-l*.-*tor pã\uø rvrrc"r"noir, sliding
       hardrvnre, powcr scat clevalor
       Denied Daie(s) of Scoico: SDO?Oß & Forward
       Request Date: 05/20i201            I                                              Neoessâry
       rüp";;.     f'quesr : Denied Notification for Rcduction of scrvic¿s not Medically
       Date of Denial: 6/512011

       Dear LISA R WIINZEL:
                                                                                                           AftercarcfulrevicwoFyourrcqucst'adccisíon
       Thislerteristoletyouknowthatwerecelvedarequei[forthescrvicè(s)listedabove.
       was nladc to deny ihcrcgucsl duo to tho reasons listed below:




                                                                                    ,tnd dr¡ve functlon ls not approvcd, thc rcquest for




                  indcpcndent tronsfcrs' pertlcuhrly uphill fransfers' to anr
                                                                                                          tn thc homc' Thc cllnical informatlon
                  facílit¡tc rn,repun,rcnii'"ifo.nron"o oimobfltty retricd actlvitlcs of daily living
                                        that  you requlre    m¡rimum   assist¡nce in ull act¡vitlca of dally llvlng and you are unâblo to pciform
                  subrnittad indicatc¡
                                                                indcpcndcntly.  The  rlocumcnt¡tlon    submlttcd   did not lndlcllc horv thc power
                  rnobility relatcd rctivilles of <laliy living
                  sc6telcv¡trorry*t.-rvouiap.oritulni.p"nå"n"e. T'hereforo,thoguldellncsforcoverageofthiscquipmcntarenotmct'
                  Plcasc discu¡¡ thls         notiflcation wfth your dt¡ctor and vendor'
                                                                                  (HCS) department policy and proccdure'
       This lcrtsr tollows thc Molln¡ Hcalthcare of Tcras -lfc¡lthcorc Servlcc¡ -
       your provider has bccn sent r copy ofthis letter. You may wlnt to              discuss this decision rvith your Providcr to makc sure )'our provldcr
       submined all ofthc docut¡cnts neccssary to suPport yourrequcsl'



                                                                                                                      98t9TX0lt2
       li,l H   l'Âurchu-lf AlRt lf(N(ì. 02520 z
                                      1          1




                                                                                    z3


            000042
     84 NE Loop 410, Suite 200 -'
     San              TX 79216
     (877)

     lf you   nccd help undcrstanrllng thlS noticc                   or if you want to learn ùoror yon of your rcPresentâtlv€ can call Mollna Healthcsre
     ¿l l-877-665-4622, Extension 201050' or rvrlts to:
                                                                              Molina Heafthcarc of 'fexas
                                                                            6999 MoPhsrson Ave., Suíto 212
                                                                                     Latcdo,   TX   78041
                                                                           Attn: Healthcare Serviccs APPcals

     FalÉ hearlng:    See attachcd document (attachrnent B) to find out how to ask lor a fair hearing.
     À<Jdi¿lonal  Asslstance:  lf you need assistance ln obtaining medical cate, you may be eligiblc for medical case managemont sr¡rvloes.
     F.or rnorc inforrnation about medicol caso managoment, you nray contact THSteps Oureach and Information tlotline, llee of charge at
     I -877-THSTEPS ( I -877.847-837Ð,


     lf yôu   rynnt to nppcal fhis. decísionr you neeil to d.o.so rvithin 30 days of the day that you received this lcttcr, A falr hearing
     must be lÌlerl rvlthln 90 days of the date thatyou recclvcd this notlcc.

     N¿lollna lllember Apponl RÍghts:

                      l,         you hoyo tho right'Io appoar in pers<ln ancUor appoinr someonc to act and speok on yottr behalf. This pet'son can
                                 represcnt yott at any level ofthe appeal'
                      Z.         You have ihc ¡ight to spcak rvith Molina Heulthcore ol'Texas (MH1), This can be in persttn. by phone, by ernail, by
                                 rnail, by fax ol by ûr¡y orher lneirlìs.
                      3,         You lrave tho ríght to send comr¡ents. docunìcnts or othcr infonna¡íon about tlre appeal in n,riting.
                      4.         you have the riglrt to ol¡tain a copy of tlro guidelines used by MHT to decide rhe outconle, To receive a copy, pleasc
                                 call rhcllealrhcãrasprvices(HCS)departrnentatl-87?-665-4622,Youcanalsof'axarcquestto                l-866'420'3639,
                      5,         you or your Docror or your Representative, itrcluding your larvyer. have the right to talk rvith us aboul fhe dcnlal'
                                 You oryo¡tr l)octorcnn calì the l{CS Depnrtment atthe numbcr listed above.
                      6.         Y6u ¡ave tfie right to ask lbr coples ofall doounrents aboul your appcal. You cun send thc requosÈ to the Appeuls
                                 Coordinator.
                      7,         Youhavctheì.ighttocontac¡thoAppealsCoordinator.                       Youcunalsorequesthelpfi'otnalvtenrberAdvocate.Yott
                                 can coll in or rvritc to thenl ilt:
                                                                                          Molina Healthcare of Texas
                                                                                        6999 McPhcrson Avc., Suite 212
                                                                                               l-arcdo.'lexas 78041
                                                                                    Attentíon: I'l.ealthcaie Scrvices Appeals
     - l.-.".-        B.         lf¡,ouusklbranappeal rvirhin l0daysofthedateolthisletÌer.yournaybeobletokeeplhescrVicesbeingdenied.
                      g,  Wc rvill give ¡,ou an ûnswer rvithin 30 days of asking lor an appeal.
                      10. lfvou or yout doctor think that rvniting up to 30 days is too long and could hult ¡'our health, please lct us knorv rvhy
                          ¡'ou think rhis. lt'rve âgre¡r, wc nill let you knurv u,ithin I rvorkirtg days of your appeal.'l'o stult this
                                                                                                                                           plocess. cull
                          lr4olino llcalthcurc ol'Texas at l-817-665-462?,, Extension 301050 alrd ask lor a trlenrber advocrttc. ln çascs of
                          urge¡t carc or ongoing trentnìent. rlrc expcdited process rnay be ieqttcsted at the s¡ltnc titÍe ari tltê regtllsr proccss. ln
                          an expedited process, rve wi I I send your nppcal lequest to atr oursidc revietver,

     you rnay qualily lor fiee or                lorry cost legal sr¡rvir:es.   À list of lcgal aid providers that tníty be ablc to help you is incltrded   ìn
     Arrachrncnt A.

     lf you rreed solleone to help yau tnanagc your health this is callcd Medic¿l Casc Manogetrent.'l'o reccivc this                            tpe   of help, plcose call
     l-,977-665-4622 ¡ltd ask to speak lo a Flealthcîre Servíces Case Manager,

     Sincerely,



     N.ll{'r'NMNuilt6 I 0   .r   02520   I   2                                                                                        981ó't'



,Ð
                                                                                           2+


      000043
                                             @                                @

          s$
Ð                       fuîOLENA'                      -. _
                        H EA tT !=f.CA R E-        -
          84 NE Loop 410, Suhe 200
          San Antonio, TX'182.16

    --(877rfiJ5--4622


           L-,-
                 )*t ,"/o*f*'" fril>
          Freda Gardirer, MD
          Medicaj Diroctor

          Molina l{calthcare oFTclas
          Encl: Attachnlcnt À-Lorv Cost Legal, .Attachtnent B' Fair Hoaring




Ð




          Mt |TNMNLTR6t 0   . I   0252011                                         98 I ô1'



Ð
                                                                       25


          000044
.,Ð
                                                             Attachment A
                                                    [ow Cost Legal Service Directory
                                                      Xm¡rittO                                 Austin
      Legal Aid of Northwest Texas                    Legal Aid of Northwest Texas             American Civil Liberties
      - Abilene                                       - Amarillo                               Union of Texas (ACLU)
      it I 5tì                                        'ß t.ic                                  P,O. Box',l2905 Austin, fX7s711
      50O'Chestnut, Suite 901 Abilene, TX             203 W. 8th St., Sulte 600 Amarillo, TX   512478-7300
      79602                                           7q1q1                                    http : //www. aclutx.        org/
      325-677-8591                                    806-37È6808
      htto :/^fl!vw,        I   a   riwt. orq         htto://www.lanwt.oro

      Austin                                          Cornus Christi                           Dallas
      Texas Legal Services Center                     Gxas Rl"Cr"nãe Legal Aid -               Legal Aid of Northwest Texas
      815 Brazos St. Suite 1100 Austin, TX            Corpus Ghristi CouÉhouse                 - Dàllas
      78701                                           1Lt.Kl        .
                                                                                               îgl.gj
      512-477€000                                     901 Leopard Street, room ',l05 CorPus    1   515 Maln Sheat Dallas. 'lX 75201
      http://www,tlsc.org                             Chrisü, TX 78401                         21+748-1234
                                                      361-888-0282                             http://www.lanwLorg
                                                      htto://www,trla.oro
      trl Paso                                        Ilarlinsen                               Houston
      Texas RioGrande Legal Aid                 -     Texas RioGrande Legal Aid -              Lone Star Legal Aid (Houston
      El Paso                                         Harlingen                                Office)
      ig     l-Sr.:                                   itlsc                                    t' f.sc
      1331 Texas Avenue El Paso, TX 799q1             308 E Harrison Adams Gardens, TX 78550   1415 Fsnnin St. Clulch City, TX 77002
      91 5-585-51 00                                  956-364-3800                             713-652-0077
      htto://www.trla.orq                             htto://www,trla,orq                      ht'to://www,loneetarleqal,ors
      [-aredo                                         LonWÌew                                  Lu.bbock
      Texas RioGrande Legal Aid -                     Lone Star Legal Aid                      Legal Ald of Florthwest Texas
      Laredo                                          (Longview Office)                        - Lubbock
      5L lS(.'                                        il l,St                                  TL   l-\C
      1702 Converit Avenue Larddo¡ TX 78040           140 East Tyler, Ste. 150 Longvlew, TX    17'l 1 Avenue J Lubbock, l-X 79401
      950-71 8-4600                                   75601                                    s0&763-4557
      http://www.trla.org                             903,758-S123                             http://www,lanwt.org
                                                      htto://www. lonestarleqal, org

      San Antonio                                     Texarkana                                Wichita Falls
      Texas RioGrande Legal Aid -                     Lone Star Legal Ald                      Legal Aid of Northwest Texas
      San Antonio                                     (Texarkana Office)                       - Wlchita Falls
      'l!.   f.((:    .._
                                                      '¡g' I -ci:                              tl, l-.i{:
      1111 N'Main Olmos Park, 1X78212.                1425 Collegg Dtlve 9te; 100 Red Rlver    703 Scott, Ste. 100 Wlchlla Falls, TX
      210-212-3700                                    Army Depot, TX 75501                     78301
      hltp:i/www.trla.org                             903-793-7661 or 903-793-7865             94ú723-6542
                                                      htto://www.lonestarlegal.org             htto://www.   la nv'rt. o   ro




                                                                         26


        000045
        (&ì@
                     MOfl-HNA
 tilfi               I-I EA     tT   I-I   CA   R   E
84 NE Loop 410, Suit6 200
Søn     Antonio,'|X78216
(877) 665-4622

                                                           Afiachmc'nt B - Fail llearini l(ights
                                                       YOU HAVE A RIGIJT TO A FAITT I{EARINC
                                                     IF YOU DO NOT ACREÉ WII'IJ TI-Í]S DECISION

y()u musl                   tiir hearing within g0      clays lrorn ¡he dato o[ this ìafter.   lf you do not ask for a fair henring    bel'ore 9/4/20   l3 you
               ask for a                                                                                                                                  '
rvill   losc your light to a t'air henring'

Your rights in a thir hcnting arcl

        .                                                                                                      you by writing u lettcr to Molinn
            Thc right to rcpresent yorrrself. or have a. larv1,er. rclative, filend. or othcr pcrson rePrcscnt
            tclling us thc nnllle of the person that you \vant to rÈpresent you'
        "    lfyouask, l,oralairlrent.in-ervlthinl0cùiysofthedaieofthislcncror.5l20l20l3.younlrybeablerokee¡lgertingan)'service
                          that is beírrg terriinated, rrrp.nd"d, ()r reducecl ty.Molina. aI lcast unlil tbe lÌnal hearing decision is
                                                                                                                                             rnacle'
             o¡. l¡enc1ìt
                              request ã hír henring by    th is datq, the serv ice or benetil rvill bc tcrln inated, suspended, or reduced    '
             I l. you do
        "                'ot                                                                                             service or berlet'it to you while
        .    lTyou lose your lair hearing opp.il, Ñlotinu rnay bc ablo to reoover rhe costs of providing the
             tlìc àppcal rvus Pending.
                                                                                                                                                    thchcaring.
        "    llyourrsktbrafalrhc'ãring,yourvill getopacket,oFinforr¡ationlcningyouknowthodale.tirneandlocationof
             Most healings are held by lalephone.
        o    you cun    ¿rlso contact the HHSC hcarlngs oflicer if you rvould like thc.hearing to
                                                                                                     be held in-person'
        n                                                                                                   you disaglee wirh Molin4's ¿otion,
             Dr¡ring the heuring, ),ou or your roprcsentotive can tell why you need thé service or why
        o                              henrlng. you havc the right to scc your öase fìlc and oll of the docunlent5  that arc to bÙ trsed by Molitta
             13cl,ore che datc ot''ihc


        "o iirÏ   Ïili,lT..o,n'no¿otÌons tbr a <tisatrility. including interprcter setviceg.
           'lhe right to rcqLrest a languagc interPrctcr.


yor¡ can cilll us ro talk about r¡is lcrcr. cvcn if you arc not sure you want a falr hearing. You can call us fiee of chargo àt l-866-149'
                                                       g:00 a.¡n. to 5:00 p.r'fi. ro speok with a Melnber Advocatc' 'l'his is the sante tclopltotre
6g4g. Exrurrsion 201050, lVf onday through Friday,
                                                                                                                  for a disabillty. or
ntun6er 1,ou shoulcl call if you r*nt to a-sk.for a lair hearing, anrl ilyou need to t'equest atl accomnlodation
                scrviccs. Yor¡ cnn also rvr'ite us at Molin¡r l'leal¡hcaro olTe.ras nr:
li,r,:':ïl;,
                                                                     Molinu l'lcalthcuro   olT.*u,
                                                                  69t)9 McPhelso¡l i\ve Sui¡e ?12
                                                                         Laredo, 'fX 7804 I
                                                               Atlention; Flealthcare Service Appeols

 l-ll.lSC rvill glve you a linal decision rvithin 90 days lïonr thc dure you asked fbr thc hcaring.




                                                                                                                       98t9',1'X03I?
 lvlHTÁnachl3-liAlRl IRNC. I 02i20 I 2


                                                                               27


 000046
APPENDIX 2
                                     ]                                       )
                                             APPEAL NO. I6J9469

                                                         s
                      IN THE &IATTER                     $            ORDER OF TIIE
                            OF                           $       TEXÀS HEALTTI A¡ID HUTVIAN
                       LINDA PUGLISI                     $         SERVICES COIVIMISSION
                                                         $

                                                    ORDER

     The undersigned designee of the Executive Commissioner, having received and considered the evidence
     submitted in this m&tter, is of the opinion that the preponderance of the evidence establishes that the
     agency's action IS in accordance with applicable law and policy. Therefore, that action is SUSTAINED,




     FINDINCS OF FACT AND CONCLUSIONS OF LAW ARE ATTACHED




\-

     signed        Å'24uv
              on tni,           rr,/H,ko/r,           20t3




     Health and Human Services Commission




L
         000330
                                                 )         AppEAL No.       l6Je46e ì
                                                                   Before the
                                       rexa s IIea lth
                                                         "'o
                                                             tTäå'Ìîfftt":"      mmlss ion   tH'sc)
     J
                                                                        s
                                 IN THE MÂTTER                          $              FAIR HEARTNG
                                       oF'                              $                DECISION
                                  LINDA PUGLIST                         $

                                                             t.   INTRODUCTION
             Appellant: Linda Puglisi
             A face to face hearing was convened October 30,2013 at 1459 E. 40th Street in Houston, Texas and the
             hearing record closed the same day.

             Appearances:

             Linda Puglisi,                  Appellant
             Mauree¡r O'Connell,             Attorney atLaw with Southern Disability Law Center
             Michael Duenas,                 New Motion representative and Appellant's witness
             Susie Castilleja, Rn            Mo lina Healthcare representative
         Yvette Kuntscher, Rn                Mo I ina Healthcare representative
         CarrenZysk,                         Molina Healthcare representative
         Wendy Tseng                         Legal counsel for Molina Healthca¡e

         Purpose of Fair llearing
L,
         The purpose of the fair hearing was to determine whether the action taken by Molina Healthcare to deny
         Appellant's request for a group 4 power wheelchair with an integrated standing feature was in accord¿nce
         with applicable law and policies.

         Legal Authorlty

         The fair heoring was conducted under the authoríty provided by Titte 1, Section 357.1 through 357.25 of
         the Texas Administrative Code (TAC) and relat d law.



                                                     IT. PROCEDURAL HISTORY

         I   .   On June 6,20L3, Molina Healthcare notified Appetlant of the denial of a group 4 power wheelchair
                 with an integrated standing feature because it was not medicatty necessary.

         2,      Appellant disagreed with the agency's decision and requested an appeal June26,2013,

         3.      A notice of the fair hearing was mailed to Appellant luly 22,2013, by f,rrst class mail for a
                 teleconference hearing scheduled for Septernb er 24,2013.

         4.      On or about July 24,2013, Appellant requested a face to face hearing therefore the appeal was

It               reassigned to area 4 for a reset.

                                                                   Páqe 3



                  000331
                                                ')                                             ')
             5, A notice of fair hearing was mailed    to Appellant and her legal representative on July 25,2013, by f,rrst
                 class mail for the face to face hearing scheduled for September 5, 2013.

\   .ãt 6. On Septemb er        3   , 2013, the hearing was reasslgned to this heæing officer.

             7. A notice of the fair hearing was mailed to Appellant       and her legal representative on September 9,
                2013, by hrst class mail for the face to face hearing scheduled for October 30,2013.

          8. A face to face hearing       was convened October 30, 2013 at 1459 E.      401h   Street, Houston, TX77022.


                                                     III. RELEVANT AUTHORITIES


         Texas Medicaid Providers Procedures Manual:

         Policy section 2.2.14,15 titled Power Seat Elevation System states that a pow€r seat elevation system is
         used  to raise and lower the client in their seated position without changing the seat angles to provide
         varying amounts of added vertical access. The use of a power seat elevation system will:
                    . Facilitate independent transfers, particularly uphill transfers, to and from the wheelchair, and
                    . Augment the client's reach to facilitate independent performance of MRADLs in the home,

         Policy section 2.2.14.15.1 titled Prior Authorization indicates a power seat elevation system may be prior
         authorized to promote independence in a client who meets all of the following criteria:

         . The client does not have the ability to stand or pivot transfer independently.
h/       . The client requires assistance only with transfers across unequal seat heights, and as a result of
           having the power seat elevation system, the client will be able to transfer across unequal seat heights
              unassisted.
         '   The client has lirnited reach and range of motion in the shoulder or hand that prohibits independent
             performance of MRADLs (such as, dressing, feeding, gtooming, hygiene, meal preparation, and
             toileting).

         Policy section 2.2.14,15,2 titled Documentation Requirements indicates that the submitted documentation
         must include an assessment completed, signed, and dated by a physician or a licensed occupational or
         physical therapist that includes the following:

         . A description of the client's current level of fi.¡nction without the device
         '   Documentation that identiftes how the power seat elevation system will improve the client's
            function
         . A list of MRADLs the client will be able to perform with the power seat elevation system that the
           client is unable to perform without the power seat elevation system and how the device will increase
             independenco
         . The du¡ation of time the client is alone during the day without        assisúance
         '   The client's goals for use of the power seat elevation system

        Note: A power seat elevation system option will not be authorized for the convenience of a caregiver,
              or if the device will not allow the client to become independent with MRADLs and transfers.

q,
I
                                                                      Lt




                 000332
                                     zo title¿)Procedure Codes and Lirnitations for   #,,    ity Aids indicates: The
               t-ollowing mobility aids are not a benefit of Home Hearth services:

 t,/        '    Feeder seats, floor sitters, comer chairs, and travel chairs are not consiclered medically necessary
            devices

            ' Items including but not limited to tire pumps,    a   color for a wheelchair, gloves, back packs, and flags
            are not considered medically necessary

            '   Mobile standers, power standing system on a wheeled rnobility device

            .   Vehicle lifts and modifrcations

           . Permansnt ramps, vehícle rarnps, and home modifications
           . Stairwell lifts of any type
           . Elevators or platform lifrs of any type
           . Patient lifts requiring attachment to walls, ceilings, or floors
           .    Chairs with incorporated seat lifts

           ' An ¿ttendant control, for safety all power chairs are to include a stop switch
           . Powered mobility device for use only outside the home
{-         Texas Medicaid does not reimburse separately for associated DME charges, inclucling battery disposal
           fees or state taxes. Reimbursernent for associated charges is included in the reimbursánent for thå
           specific piece of equipment. White canes for the blind are considered self help adaptive aids and are
           not a benefit of Home Hedlth Serr¡ices.

           Note: THSteps'eligible clients who have a medical need for sewices beyond the timifs of this Home
           Health Services benefit may be considered under CCp.


                                                IV. SUMMARY OF EVIDENCE


       The hearing officer has ca¡efully considere.d the evidence contained in the hearing record and makes fìndings
                                                                                                                  ¿
       of fact and conclusions of law based on the weight of the evidence presented andln accordance with         the
       burdens of proof explained    in I TAC     357.9,



                                                      V.   FTNDINGS OF FACT


       Findlng of Fact No. l: Appellant is a member of Molina Health managed           care orgrnization.




"{'

            000333
          Finding of Fact No. 2: Appel l.ä ,, u twenty six year old female Oi"gn,,   .ì with quadriplegia due to a
          spinal cord injury caused by surgery completed November 3, 201l.

         F'inding of Fact No.3: On February 13,2013, Appellant was admitted to Texas Institute for Research
ir.¡a    and Rehabilitation (TIRR) hospital where sbe was evaluated for DME. During her stay at TIRR Appellant
         was able to maneuver and operate a custom power wheelchair C500VS which included an integrated
         standing feature. Appellant was able to stmd five times for approximately 5 to l0 minutes each time.

         Finding of Fact No. 4¡ On or about May 21,2013, Molina Healthca¡e received a request for prior
         authorization of a custom power wheelchair group 4 with an integrated standing featrue and seat elevation
         system.

         Finding of Fact No. 5: On or about June 4,2013, Molina Healthcare forwarded the DME request to
         Rehab Review for a third party review for medical necessity of the DME requested, Rehab Review is a
         Rehabilitation Engineering and Assistive Technology Society (RESNA) certified enrity contracted by
         Molina Healthcare to conduct independent reviews for medical necessity of DME.

         Finding of X'act No.   6:   Appellant was able to maneuver a power wheelchair group 3 independently
         during hearíng,

         Finding of Fact No. 7: A group 3 power wheelchair differs from the group 4 power wheelchair in that it
         does not include a seat elevation system and the stand alone feature.

        Finding of Fact No. 8: Appellant requires mæ<imum assistance with all activities of daily living
        including transfers. Appellant requires caregiver assistance to transfer in and out ofher bed and
        wheelchair.


Lt      Finding of Fact No. 9: Appellant is able to move her hands and fingers and requires the
        supports to facilitate some ADL's.
                                                                                                      use   of sling arm


        tr'inding of Fact No. 10: Molina healthcare recommended approval of a group 3 power wheelchair with a
        stand-alone dynamic stander to meet the Appellant's needs; however Appellant is unable to transfer
        independently and would require assistance from one or two caregivers to transfer to the dynamic stander.

        Finding of Fact No. l1¡ Appellant would not be able to transfer across unequal seat heights unassisted by
        using a power seat elevation system,


                                                 VI. CONCLUSIONS OF LAW

        Based on the findings of fact and applicable authority, the hearing offìcer concludes that:

        The decision made by Molina Healthcare on June 6,2013 to deny Appellant a group 4 power wheelchair
        with an integrated standing feature tilAS in accorda¡ce with applicable law and policy. Appellant
        requires total assistance with all transfers and is not lirnited to transfers across unequal seat heights. A
        seat elevation system will not facilitate independent transfers to and from the wheelchair for the
        Appellant. All the criteria noted in Texas Medicaid Providers Procedures Manual section 2.2.14.15.1 were
        not met. Mobile standers, power standing system on a whEeled mobility device are not a benefit of Home
        Health Services; therefore Molina Healthcare's action to deny a group 4 power wheelchair with an
        integrated standing feature is SUSTAINED.


                                                            rûgç o


             000334
                                         )            VII. EXHIBITS               )
      Exhibit I admitted on behalf of Molina Healthcarc:

           Page l'7: Notice.of Hearing dated July 22,2013 a¡d Fair Hearing Summary
 ø         Page 8'27: Denial Notice from Molina Healthcare to Appellant dãted June
                                                                                      forrn 4g00.
                                                                                   é, 2013.
           Page 27 -30: united seating and Mobirity request for DME dated May z0, zóß.
          Page 3l-33: Letter from Lisa Wenzel, M.D. submitted May 20,2013 toMolina Healthcare.
          Page 34-36: Prior Authorization request submitted May 20,2013.
         .- Page 37'41: Prior Authori_zation request submítted to   Molina Healthcare April 4,2013.
          Page 40-98: Physicians order for DME, DME assessment, and DME literatu¡e.
          Page 99-122: Rehab Review report dated May 30, ZOl3,
          Page 123'l3l: Texas Medicaid providers procedures Manual policy.
          Page 132-142: Molina Healthcare policy and procedure.


     Exhibit 2 ¡dmitted on behalf of Molina Healthcare:

          Page   l:   Fair Hearing Request Summary form 4800.
          Page 2: Procedure code F'2301 search results,
          Page 3: Texas Medicaid Providers procedures Manual policy.
          Page 4-9: Molina Healthcare Interrogatory responses.



     Exhibit 3 admitted on behalf of Molina Healthcare:


t'       Page l-2: Molina Healthca¡e Member Handbook.
         Page 3-l4l Needs Assessment Questionnaire and Task/Hour Guide fo¡m2060 completed September ZO,Z0l3.


     Exhibit   4 admitted on behalf of Appellanr:

         Page I - 13: ïVheelchair/Scooter/Stroller Seating Assessment.
         Page 14-16: unired seating and Mobility requesr for DME dated May 20,20t3.
         Page t7-19: Letter from Lisa'wenzel, M,D. submitted May 20,2013 to TMHP.
        Page20-22: Prior Autho¡ization request submitted May 20,2013,
        Page23'25: Prior.Authorization request submitted to Molin¿ Healthcare Apnl 4,2013.
        Page26-84: Physicians o¡der for DME, DME assessment, and DME literature.
        Page 85-88: Denial Notice to Appellant from Molina Healthcare to Appellant dated
                                                                                         June 6, 2013.
        Page 89: Letter of legal counsel representation da ted June 24, ZOl3 ,
        Page 90-97: Petition of Interrogatories dated July I g, 201 3.
        Page 98-99: Letter from southern Disability Law center dated August 14,2013,
        Page 100: Letter from Southem Disability Law Center to the hearÌng offióer dated Augu
                                                                                                  st 14,2013.
       Page l0l: Letter from Southern Disability Law Center to Molina HJalthcæe dated
                                                                                            Augusf 14,Zll:.,
       Page 102-104:Texas Medicaid providers procedures Mzurual policy,
       Page 105; Letter from Southern Disability Law Center to the hearingofficerdated August
                                                                                                   19, 2013.
       Page l0ó: Letter from Southem Disability Law Center to the hearing officer dated Augu
                                                                                                 st26,2013.
       Page I 07- I 08: Lettor from Soutbern Disability Law Center to the heãring officer aated
                                                                                                Augus t 26, 2013,
       Page 109-110: Letter of MedicalNecessity from ,isa Wenzel, M,D. datJd September 26,10ß.
       Page I I l-114: Declarations of Assístive Technorogy professionals.

&      Page 115-117: Aflidavit of Assistive Technology professíonal.

                                                       rage

        000335
                                       þ3
        . Page I 18-126: Notice of Hearing dated September 9, 2013 and Fair Hearing Summary form 4800.
         .Page-!T=lZ8.tÇ-entcrs. for Mçdica¡e-& Medicaid Services polic¡rclarificationregædingDME-dated
,J       P
                          May 21,2013.
             age I 29 -132 : Exceptional Circumstances policy.
         Page 1 33 -1 47 : Petitioner's Memorandum for appeal 1 639469.
         Page 148-152: Molina Healthcare's response to intenogatories.




                                                     /nr. 2013
v    sìgnedonthis   Á*               /Årrn


                                 Officer
     Health and Human Services Commission




                                                         Y^ge ó


         000336
APPENDIX 3
                                   )                                          )


,ú                     TEXAS HEALTH AND HIIMAN SERVICES COtvtMISStON
                                     APPEALS DIVISION

        IN rHe   M¡rreR                                 $
                                                        $
       OF                                               $                         APPE^L No. 1639469
                                                        $
       LINDA PUCLIST                                    $




                          ADIvTINISTRÀrryp RBv¡Bw       or FITn HEARINc Decnlou

                                                  Jurisdiction

              This administ¡ative review is conducted pursu¡rnt to the authority of the Texrr

       Government Code $ 53I.019,      I Tex¡s   Administrotive Code $$ 357.1-3j7,25, .utd I   Tex¿rs

       Administrative Code $$ 357.701-357.7o3. and pursuunt to Appeltunt's timely written rcquesr

       for ¡n administrutíve revíew postmarked on December 19, 2013.

                                 Purpose of the Àdministrative Revlew
Lt            The purpose of this udministrutive review is to dcterminc whether or not the hearings

      officer followed thc appticable laws, procedures, and progrm rules in the above-referenced-

      and-numbercd heuring decision rendered on November 22,20L3,

                                            Proceduml Hlstory

              On June 6,2013, Molina Heulthcqre of Texas sent App€llant û notice denying her

      request for a Group 4 custom power wheelchalr with an integrated standing feature and

      power seat elevation system becouse it wus not medically necessary and it was not o covered

      benefit. Appellant requested un appeol on June 26,zol3, on July 22, zol3, u hearings

     officer sent a notice to Appellunt scheduling a telephone hearing for Septemb er 24,2013, On

     or ¡rbout luly 24,2013, Appellant rcquested a fuce-to-fuce heiuing. On September9,20L3,




L
     000340
                                          i                                            )


,Ð     the heurings officer sent a notice to Appellant scheduling a telephone hearing for October 30,

       20   t3. The hearings offlrcer convened the heuring in Houston, Texas, on October 30, 2013.

       On November 22,2013, ttre henrings officer issued an order sustaining Molina Healthcare's

       decision to deny he request for o Group 4 custom power wheetchair with an integrated

       standing featur€ utd power seut elevation system in accordance with applicable law and

       policy. Appellant submitted            a timely request for an administrative review by letter

       postmarked on December 19,2013.

                                                    Relevant Authorities

       Excerpts from Texas Medlcald Provider Procedures Manual: Yol,2rDursble lVledical
       Equipment, ùIedical Supplies, and Nutrltlonnl Producis Handbook (Jan. 20L2r.

               2.2.14,6 Weeled MobíIity Systems

               2.2. I 4.6.   I   Definitíons and Responsíbilítíes


U              ' MRADL - An uctivity of daily living reguiring
               feeding, dressing, grooming, and bathing).
                                                                         lhe use of mobility aids (í.e. roilering,




               2,2.14,12 Power tlltheeled Mohílity Systems
                                                                    - Group I through Group S
               A power wheeled mobility system or powered mobility device (pMD) is a
               profcssionally manufactured device that provides motorized wheeled mobilify and
               body support specifically for individuals with impoircd mobility. PMDs ure [our- or
               six-wheeled motorized vehicles whose steering is operuted by un electronic device or
              joystick to control direction, lurning, and alternative electronic ft¡nctions, such as sett
              controts.


              2.2.14.12,5 Group 4 PMDs

              All Group 4 PMDs must have dl              the specifted basic components and meet ull tÌ¡e
              following requírements:

              . Stand¡rd integrated or remote proporrionûl joystick
              . Nonexpondable controller



b                                                             2




     000341
                                                                                       ')
                                          )


    I                 . Capable of upgrade to expandable
                      . Capable of upgrade to alternative
                                                           controller
                                                          control deyices
                      . May not have cross bruce constn¡ction
                      ' Accommodutes seating and positioning items (e.g., seut and back cushions,
                      headrests, luteral tnrnk supports, toteralÍip.upports,
                                                                             mediar thigh supports [except
                      captains chairs])
                      ' Drive wheel su.spension to reduce vibrution
                      . Length - less than or equol to 4g
                                                           ínches
                      . Width - less thr¡n or equal to 34 inches
                     . Minimum top end speed -
                                                    6 mph
                     . Minimum rûnge - 16 mjles
                     . Mini¡num obstacle clirnb - 75 mm
                     . Dynumic stability inctine - 9 degrees

                     Prior AuthorizatÍon Requlrements

                     A.Grou.p
                              1
                                PyD moy be considered for prior authorization for renral or purchase
                     when all the following criteria are met:

                  . [n addition to using rhe pMD
                                                    in the home, the client will rourinety use the pMD
                  MRADLs outside the home.                                                             for
                 . The client will routinely
                                              use the pMD on rough, unpaved or uneven surfaces.
                 'The   client will encounter obstactes in excess of Z.zs inches.
U                'The client has a documented medical need for u feature ttuì is not uvril¡ble on a
                 lower level PMD.

                 I)ocumentatlon Requlrements

                                                                  PMD must include     I    completed
                                                                 sician or   ¡ licensed occupationul or
                                                                ù.
                                                                tt.

                 o A description of the environment where the pMD will be used
                                                                                       in the routine
                 performunce of MRADLs.
                 ' A lisring of the  vnnfls     rhar would be possible witrr rhe use of u
                                                                                           Group 4 pMD
                 that would not be possible without rhe Croup 4 pMD,
                                 the ctient is expecred to routÍnety truvel on u doily
                                                                                           busib with rhc Group
                 ;lfiS:r,-ce
                          Nole: The enhancedfeatureslound on a Group 4 pMD
                                                                                    musr be metricizily
                          trccessary ro ueet rhe clïent's routíne tvlRADL and
                                                                              will not be approvedfor
                          Ie isure o r rec reatìonal actìvitìes,




þ

        000342
                                             )                                    )


'.d                In sddition to meeting criteria for Group 2 through Group 4 pMDs, the submitted
                   documentation of ¡nedical necessity mu$t demonstrate thût the clien¡ requires the
                   requested power option (e.g., the need for I power recline or tilt ìn spûce, or a
                   combinution power tilr and power recline), the no-power opt¡on, single-power option,
                   or multiple-power option as defined in subsection2,2,L4.lZ,.'Po',ver Wheeled
                   Mobility Systems- Croup I through Croup 5" in this handbook.


                   2.2.14.15 Power Seøt Elevatlon Systetn

                   A power seut elevation system is used to raise and lower the client in-their seated
                   position without chonging rhe seut ungles to provide varying rmounts of added
                   verticol üccess.

                The use of a power seut elevation system                  will;
                . Fucilitate independent transfers, particularly uphill transfers, to and from the
                wheelchair, and
                ' Augment the client's reach to facilitate independent performance of MRADLs in the
                home.

               2.2.14. I 5, I Príor Authorization

               A power seat elevation system may be prior authorized to promote independence in          a
               client who meets all of the following críteria:

                . The clie¡rt does not have the ability to stand or pìvot transfer independently.
                ' The clíent requires assistance only with trnnsfers across unequul seat heights, und    us
               a result of having the power seal elcvoiion system, the client will be uble to trensfer
               [cross unequal seut helghts unassisted.
                . The client h¡s limited reach and range of mot¡on in thc shoulder or hand that
               prohibits independcnt performance of MRADLs (such as, dressing, feeding,
               grooming, hygiene, meal preparation, und toileting).

               2,2.   1   4. I   5.2 Docum entation   Re   qui reìnents

               The .submitted document[t¡on must include ûn âssessmcnt compteted, signerl, and
               dated by t physician or u licensed occupationul or physical therapist that includes the
               following:

               '  A description of the client's current level of function without the device
                ' Documenfation that identifies how the power seut elev¡.tion system will improve the
               client's function




u                                                                  4



      000343
                                            )                                            )


    ¿                  ' A list of MRADLs úe client will be uble to perform wirh the power seat elev¿tion
                      system that the client is. unuble to perform without the power
                                                                                     ,"¡it elevution systern
                      und how the device wil[ increase independence
                       'The duration of ti¡ne the client is alõne during the day without assistance
                      ' The client's goals for use of thc power seat eievation syrtem -
                             Note: A porver        ereuatíon system opriott wilr not be autrtorizedfor
                                             .seat                                                        the
                             conveníence of a. caregìven or íÍ the devíce wíll not
                                                                                     ollo¡v the clíent to become
                             ìrclependent tvith MRADI-s and hansfers.


                  2.2-14.26 Procedure codes and Ltmltations
                                                                     lor Mobìttty Atdt
                  The following mobiliry aids ure nor a benefÌt of Home Heatth
                                                                               services:
                  a

                  a    Mobile stunders, power standing system on a wheeled mobiliry
                                                                                    devicc
                  t


                                                     Findings of Fact

                  l'    Appellont received Home Healtlr Services from Molina Heolthcore,
                                                                                         a Medicaid
qt        man oged-care     orgunization.

                 2' Appellant is a 26-year-ofd      female who has quadriplegia due to a spinal-cord injury

         caused by a surgical procedure in Novcmber, 2011,
                                                           lo remove tr tumor neor her spinc.

                 3'    Due to the nature of her injury, Appellant depends on power
                                                                            ü      wheelchair for
         indcpendent     mobility. Appellant rcquires    ussist¿rnce to   ransfer in und out of her bed ¡nd
         wheelchai¡.

                 4' on February 13,20L3, Appetlant was udmitted             to Tex¿s Institute for Re seurch and

         Reh¡rbilitation (TIRR) hospitul where she wus evaluoted for
                                                                     DME. During her stay at TIRR,
        Appellunt was able to mtneuver und operate a Permobil c500
                                                                                vs   power wheelchuir, which

        included un integrated sfanding feature. Appellant w¡s able
                                                                    to stûnd five times within un

        hour, approximately 5 to      l0   minutes each time.



û

        000344
                                            þ                                           )


    /                5' Molinl Heulthcare received      o request   for prior uuthorization of n permobil

           C500 VS Croup 4 custom power wheelcbuir with an integrated standing feature and                  po¡er
           seat elevation system.


                     6. Molinu     Healthcare reviewed the request und determined that the requested Group 4

           custom power wheelchair rvith an integruted .standing feature und power seat elevatjon

           system w:rs not covered because lt rvns not medicuJly necessary and it wns a not
                                                                                                    ¡ covered
           benefit. Molina Healthca¡e recommended tl¡at Appellant request a Group 3 power

          wheelchair ¡¡nd 0 stand-alone dynamic stander to meet her needs.

                     7, The primary dífference between a Group 3 custom power wheelchair           and a

          Group 4 custorn power wheelchair is that a Group 4 custom power wheelchair may be used

          routinely outsidç the home and on rough or uneven surfaces. Also, the intÊgrated standing

          fe¡ture and seuþelevation Eystcm are not tvailable with the Group 3 cusrom power
L,        wheelchair.

                 8. Appellunt was oble to mûneuver         u Group 3 power wheelchuir independently during

          the hearing.

                 9. Appellant       is unable to transfer independently and would require ¡ssistance from

         one or two curegivers to transfer to a dynamic stsnd€r.

                 10. Appellant is unuble to trunsfer independently Êven with the assistance of a power

         seat elevation system.

                 I   l.   Appellont presented insufficient evidence that she would (a) routinely use the

         requested Group 4 custom power wheelchair for mobility-reluted uctivities of daily living




ü                                                            6




        000345
                                        )                                        )

 t¿       outsirle her home, (b) routinely use the requestcd Group 4 wheetchair
                                                                                on rough or uneven

          surfaces, and (c) encounrer obstactes in excess of 2.25 inches.


                                                 Concluslons of Lsw

                 l.   Becuuse there   wu insufficient evidence that Appellant would (l)   rouuinely use rhe

         requested Group 4 custom power wheelchair for mobility-related
                                                                        ¡ctivities of duily tiving
         outside her home' (b) routinely use the requested Croup 4 wheelchair
                                                                              on rough or uneven
         surfaces, und (c) encounter obstacles in excess ol 2,25 inches, Molina's
                                                                                  decision to deny the

         requested Group 4 custom Power wheelchdr w¿¡s supported by thc facts
                                                                              and policy the facts

         and applicoble luws, procedures, und progrurn rules.

                2.    Because Appellant is unoble lo trmsfer independently, even with
                                                                                      the assistance    of
        o Powet seat elevation system,      Molinu's decision to deny the requested Group 4 custom


It      power wheelch¡ir with power se¿t elevation system wns supported

        laws, procedures, und progrom rules.
                                                                        by the facrs ond applÍcable



               3.    Bccause power stmders on wheeted mobitiry systems are specificully
                                                                                        excluded

        from coverage under Texus Medicaid Horne Health Sewices, Molina's decision
                                                                                   to deny the
        reguested Group 4 power wheelchair       with an integrated standing feoture was supported by

       the facts and upplicuble laws, procedures, and program rulcs.

               4. The heurings officer followed applicabte taws, procedures, and progrûm rules in

       thc appeal hcuring and tlre final decision rendered on Novembe t 22.    zol3,

                                                       Order
               Bæed on my review of this m¿ttler, I have determined that the heruings
                                                                                      otficer
       developed the record appropriutety and followed applicuble luws, procedures,
                                                                                    nnd program



,L
      000346
                                     )                                         )


 t.;'¿     rules. The record reflects that Molina properly denied Appellant's request for a Group 4

           custom power wheelchuir with un integrated standing feature und power seut etevation

           system in accordance with applicuble low and policy. It is thereforc ordered thot the hearings

           officer's decision in this matter is SUSTAINED,

                   Signed: Jonuary 14, 2014,




                                                            Edwin J. Cook
                                                            Reviewing
                                                            Texus Health and Human Services
                                                            Commission


          ADOPTED:




\'                â,î*<¿.\



          Javier Contreras, Hcurings Offrcer
          Texus Health and Human Services Commission




Ét                                                      I

         000347
APPENDIX 4
: Texas   Administrative Code                                                                    Page 1 of2



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  T'ITLE 1                   ADMINISTRATION
  PART 15                    TEX,\S HEALTH A}TD HUI\4AN SERVICES COMMISSION
  CHAPTER 354                MEDICAID HEALTH SERVICES
  SUBCHAPTER A               PURCHASED HEALTH SERVICES
  DIVISION 3                 MEDICAID HOME HEA].TH SERVICES
  RULE $354.1031             G,eneral


(a) Purpose. The purpose of this subchapter is to establish rules for the Title   XIX (Medicaid) home
health benefits.

(b) Definitions. The following words and terms when used in this subchapter, shall have the following
meanings, unless the context clearly indicates otherwise.

                                                       ent, appliances and supplies which are provided
                                                      dence by home health agency staff, providers of
                                                      upplies under federal regulations 42 CFR $440,70
                                                       f Care) and $354,1039 of this title (relating to
Home Health Benefits and Limiøtions).

 (2) Home health agency--A public or private agency or organization, licensed by the state to provide
hòme health servicei and qualified to participate as ¿ Medicare home heallh agency under 42 CFR, Part
484, $$484.1-484.52 (Conditions for Participation of Home Health Agencies).

 (3) plan of care--A written regimen established and periodically reviewed by a pþsician in
cònsultation with home health agency staff, which meets the plan of care standards at 42 CFR $484'18
and $354.1037 of this title.

 (4) Home health aide--An individual who meets the Medicare home health agency personnel
qùáincations and training requirements established for home health aides at 42 CFR $484.4 and
$484.36.

  (5) Home health aide services--services which can be provided by a qualified home health aide,
including those listed at 42 CFR $484.36.

 (6) Department:The Texas Department of Health and or its designee.

  (7) part-time--Home health aide or skilled nursing services provided any number of days per week
less than eight hours per daY.

  (g) Intermittent--Home health aide or skilled nursing services provided less than on a daily basis less
than eight hours per daY.

 (9) Medicare fee schedule--The fee schedule established by the Medicare plogram for expendable
medical supplies and durable medical equipment.

  (10) Expendable medical supply acquisition fee'-The fee determined by the department ot its designee



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Texas Administrative Code                                                                                                                      Page? of2



by periodic sampling of suppliers or from information provided in manufacturer's publications,
whichever is lesser.

 (l l) Expendable medical supplies--Medical supplies which meet                                                    one or both of the following criteria:


  (A) the typical te¡m of use is within one year of purchase; or

  (B) reimbursement is made at a cost of $1,000 or less,

 (12) Durable medical equipment--Machinery and/or equipment which meets one or both of the
following criteria:

  (A) the projected term of use is more than one year; ol

  (B) reimbursement is made at a cost more than $1,000.

Source Note: The provisions of this $354.1031 adopted_to be effective June 26, 1997,22 TexReg
5826;transferred eifective Septembei l, 2001, as published in the Texas Register }day 24,2002,27
TexReg 4561; amended to be effective November t4,2002,27 TexReg 10588

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                                                   List of.


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: Texas Administrative Code                                                                            Page   I of2


                                                                                                     Next Rule>>
<<Prev Rule
                            Texas Administrative Code
  TITLE 1                    ADMINISTRATION
  t¡AItT 15                  TEXAS HEALTH AND HUMAN SERVICES COMMISSION
  CHAPTER 354                MEDICAID HEALTH SERVICES
  SUBCHAPTER A               PURCHASED HEALTH SERVICES
  DIVISION 3                 MEDICAID HOME HEALTH SERVICES
  RULE S3s4.103s             Recipient Qualifications for Home Health Sen¡ices

(a) An eligible Medicaid recipient must meet the following requirements to       qualiff for Medicaid home
health services:




by their physician within 30 days prior to the start of
waive¿ *nãn u diagnosis has alreády been established by the physician and the_recipient is under.the .
                                                                                            physician's
continuing ,ur. unã medioal supervision of the physician..Any waiver must be based on the
statemenithat an additional evaluation visit  is not medically necessary;

                                                             s as documented in the recipient's plan         of care
                                                                  ttlåli"it1;t'31 tJåt         titre (rerating to
                                                            il:                          "is

  (3) receive services that meet the recipient's existing medical needs, subject to $354'1039, of this title
(reíating to Home Health Services Benèfïts and Limitations) and that can be safely provided in the
recipient's home.

(b) The home health service, supply, equipment, or appliance must:

  (l)   be prior authoizedby the department, unless otherwise specified by the department;

  (2) be prescribed by a physician who is currently licensed;

 (3) be medically necessary, as documented in the plan of care and/or the request form, in accordance
*ití, gls+.t 037 and $354.íó39 (of this title (relating to Written Plan of Care and Home Health Services
Benefits and Limitations) ;

  (4) be provided to a recipient in their place of residence; and

  (5) meet acceþted industry standards for safety where applicable.

 Source Note: The provisions of this $354.1035 adopted to be effective June 26,1997,22TexReg
 igi1;amended to be effective July t, tggg,24 TexReg 4365;ïansferred effective September
                                                                                               L,200.1,
    p"'Ufirfr.d in the Texas Registei }y'ray 24,2002,27 TexReg 4561; amended to be effective November
 ",
 14, 2002, 27 TexReg 1 0588

                                    N.,::ì   []   F¿iqe   Previ-ou¡-   P¿,tge




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: Texas   Adminisüative Code                                                        Page2   of2




                                                                                        915120L4
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: Texas   Administrative Code                                                               Page   I of2


                                                                                          NextRul*>
<<Prev Rule
                             Texas Administrative Code
  TITLE I                       ADMINISTRATION
  PART 15                       TE)GS HEALTH AND HUMAN SERVTCES COMMISSION
  CHAPTER 354                   MEDICAID HEALTH SERVICES
  SUBCHAPTER A                  PURCHASED HEALTH SERVICES
  DIVISION 3                    MEDICAID HOME HEALTH SERVICES
  RULE $3s4.1037                Written Plan of Care



(a) A plan of care must be recommended, signed and dated by the recipient's attending physician'

(b) The plan of care must contain the following information:

 (1) all pertinent diagnoses;

 (2) mental status;

 (3) types of services including amount, duration and frequency;'

 (4) equipment required;

 (5) prognosis;

 (6) rehabilitation potential;

 (7) functional limitations;

 (8) activities permitted;

 (9) nutritional requirements;

 (10) medications;

 (11) treatments including amount and frequency;

 (12) safety measures to protect against   itj*y;
 (13) instructions for timely discharge or refenal; and

 (14) date the recipient was last seen by the physician.

(c) Physician orders for therapy services must include:

  (1) the specific procedures and modalities to be used;

  (2) fhe amount, frequency, and duration; and


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: Texas    Administrative Code                                                                                                              Page2 of2



 (3) the therapist who participated in developing the plan of care'

(d) The plan of care must be reviewed by the physician and the home health agency personnel as often
às'the severity of the patient's condition requires or at least once every 60 days.

(e) Oral physician orders may only be given to                    per                                           to receive them under state and
ì"â"rul låw, fney must be reduceá to writing,                    sign                                           the registered nurse or qualified
therapist r.tponribb for fumishing or                        supervising                                        ice, and placed in the recipient's
chart,

(f) The plan of care shall be initiated by the registered nurse.

Source Note: The provisions of this $354,1037 adopted to be effective June 26, 1997,22 TexReg
5826; transfened eifective September I,2007, as published in the Texas Register May 24,2002,27
TexReg 4561

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                                                                                                                                                91512014
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: Texas Administrative Code                                                                       Page   I of6


(<Prev Rule                                                                                    Next RulÈ>
                           Texas Administrative Code
  TITLE 1                   ADMINISTRATION
  I'ART 15                  TEXA,S HEALTH AND HUMAN SERVICES COMMISSION
  CTIAPTER 354              MEDICAID HEALTH SERVICES
  SUBCHAPTER A              PURCHASED HEALTH SERVICES
  DIVISION 3                MEDICAID HOME HEALTH SERVTCES
  RULE $3s4.1039            Home Health Sewices Benefits and Limitations

(a) The State determines authorizationrequirements and limitations for covered home health servioe
benefits. The home health agenoy is responsible for obtaining prior authorization where specified for
the healthcare service, supply, equipment, or appliance. Home health service benefits include the
following:

  (1) Skilled nursing. Nursing services provided by a registered nurse (RN) who is currenlly licensed by
the.Board of Nurse Examiners for the State of Texas and/or a licensed vocational nurse (LVN) licensed
by the Texas Boa¡d of Vocational Nurse Examiners provided on a part-time or intermittent basis and
furnished through an enrolled home health agency are covered benefits. Billable nursing visits may also
include:

   (A) nursing visits required to teach the recipient, the.primary garegiver, a family- member and/or
n.igtrbor hoù to administer or assist in a service or activity which is necessary to the care and/or
üeatment of the recipient in a home setting;

  (B) RN visits for skilled nursing observation, assessment, and evaluation, provided a physician
specifically requests that a nurse visit the recipient for this purpose.

    (i) The physician's request must reflect the need for the assessment visit,

    (ii) Nursing visits for the primary pu{pose of   assessing a reoipient's care needs to develop a plan     of
care axe considered administrative and are not billable; and

  (C) RN visits for general supervision of nursing care provided by a home health aide and/or others
over whom the RN is administratively or professionally responsible.

 (2) Home health aide services. Home health aide services to provide personal care under the
sipervision of an RN, licensed physical therapist (PT), or oocupational therapist (OT) employed by the
home health agency are covered benefits.

  (A) The primary purpose of a home health aide visit must be to provide personal care services.

  (B) Duties of a home health aide include the p                                                         I aarc,
ambulation, exercise, rurLge of motion, safe trans                                                       to
health care athome, assistance with medications th
changes in the patient's condition and needs, and completing appropriate records.

  (C) Written instructions for home health aide services must be prepared by an RN or therapist        as

appropriate.



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: Texas Administrative Code                                                                       Page 2   of6


  (D) The requirements for home health aide supervision are as follows.

    (i) When only home health aide services are being furnished to a recÞient, an RN must make a
r,rpèiiroty visit to the recipient's residence at least once every 60 days, These supervisory visits must
occur when the aide is furnishing patient care.

    (ii) When skilled nursing care, PT, 9r OT are also being furnished to a recipient,   an RN must make
a supervisory visit to the reclpient's residence at least every two weeks.

    (iii) When only PT or OT is fumished in addition to the home health aide services, the appropriate
skillèd'therapist may make the supervisory visits in place of an RN.

  (E) Visits made primarily for performing housekeeping seruices are not covered services,

 (3) Medical supplies. Medicat supplies are covered benefits     if they meet the following criteria.

   (A) Medical supPlies must be:

    (i) documented in the recipient's plan of cæe as medically necessary and used for medical or
therapeutic purposes;

    (ii) supplied through an enrolled home health agency in oompliance with the recipient's plan of
care; oI

    (iii) supplied by   an enrolled medical suþplier under written, signed, and dated physician's
prescription; and

    (iv) prior authorized unless otherwise specified by the department.

   (B) Items which a¡e not listed in subparagrap
thetieatment or therapy of qualified recipients.
items consideration will be given to the request,
items may be given if circumstances justiff the ex

   (C) Covered items include, but are not limited to:

    (i) colostomy and ileostomy care supplies;

    (ii) urinary catheters, appliances and related supplies;

    (iii) pressure pads including elbow and heel protectors;
                                                                                                      for
    (iv) incontinent supplies to include incontinent pads or diapers for clients over the age of four
 medìcát necessity as determined by the physician;

    (v) crutch and cane tiPs;

    (vi) irrigation sets;

     (vii) supports and abdominal binders (not to include braces, orthotics, or prosthetics);


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: Texas   Administrative Code                                                                           Page 3   of6


    (viii) medicine chest supplies not requiring a prescription (not to include vitamins or personal care
items such    ¿rs   soap or shampoos);

    (ix) syringes, needles, IV tubing and/or IV administration setups including IV solutions generally
used for hydration or prescriptive additives;

    (x) dressing supplies;

    (xi) thermometers;

    (xii) suction catheters;

    (xiii) oxygen and related respiratory oare supplies; or

    (xiv) feeding related suPPlies.

 (4) Durable medical equiprnent (DME). Durable Medical Equipment must meet the following
requirements to qualiff for reimbursement under Medicaid home health services.

   (A) DME must:

   (i) be medically necessary and the appropriateness ofthe health care service, supply, equipment,,or
appùan.r prescribåd by the physician roittre ûeatment of the individual recipient and delivered in his
pia"" of reìidence morì b" documented in the plan of care and/or the request form.

    (ii) be prior authorized unless otherwise specified by the department;

    (iii)   meet the recipient's existing medical and treatment needs;

    (iv) be considered safe for use in the home;

    (v) be provided through an enrolled home health agency under a current physician's plan of care; or

    (vi)    be provided through an enrolled   DME supplier under    a   wtitten, signed and dated physician's
prescription

   (B) The department will determine whether DME will be rented, purchased, or repaired based upon
the duration and use needs of the recipient.

    (i) Periodic rental payments are made only for the lesser of:

      (I) the period of time the equipment is medically necessary; or

      (II) when the total monthly rental payments equal the reasonable purchase cost for the equipment.

    (ii) purchase is justified when the estimated duration of need multiplied by the rental payments
*orrìd exceed the reasonable purohase cost of the equipment or it is otherwise more practical to
purchase the equiPment.

    (iii) Repair of durable medical equipment      and appliances   will   be considered based on the age of the



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: Texas Administrative Code                                                                         Page 4   of6



item and the cost to repair the item.

     (I) A request for repair of dwable medical equipment or appliances must include a statement or
medical information from the attending physician substantiating that the medical appliance or
equipment continues to serve a specific medical purpose aqd an itemized estimated cost list of the
repairs, Rental equipment may bé provided to replace purchased medical equþment or appliances for
thè period of time it will take to make necessary repairs to ptrchased medical equipment or appliances.

     (II) Repairs will not be authorized in situations where the equipment has been abused or neglected
by the patient, patient's family, or cæegiver'

     (III) Routine maintenance of rental equipment       is the responsibility of the provider'

   (C) Covered medical appliances and equipment (rental, purchase, or repairs) include, but are not
limited to:

    (i) manual or powered wheelchairs;

     (I) non-customized including medically justifred seating, supports and equipment; or

     (II) customized, specifioally tailored or individualized,powered wheelchairs including appropriate
mediòalþ justified seaîing, supports and equipment not to exceed an amount specified by the
department.

    (ii)   canes, orutches, walkers, and trapeze bars;

    (iii) bed pans, urinals, bedside commode chairs, elevated commode         seats, bath chairs/benches/seats;


    (iv) electric and non-electric hospital beds and mattresses;

    (v) air flotation or air pressure mathesses and cushions;

    (vi) bed side rails and bed traYs;

    (vii) reasonable and appropriate appliances for measuring blood pressure and blood glucose suitable
to the recipient's medical situation to include replacement parts and supplies;

    (viii) lifts for assisting recipient to ambulate within residence;

    (ix) pumps for feeding tubes and IV administration; and

    (x) respiratoty or oxygen related equipment,

                                                 isted in subparagraph (C) of this paragraph may, in
ex                                                payment when it can be medically substantiated as a part
of                                                serve a specific medical purpose on an individual case
basis,

  (5) physical therapy. To be payable as a home health beneftt, physical therapy services must:



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: Texas Administrative Code                                                                        Page 5   of6


   (A) be provided by a physical                                 licensed by the Texas Board of Physical
ffràrápy Éxaminers, or physical                                  icensed by the Texag Board of Physical
Theraþ Examiners who assists                              a licensed physical therapist;


  (B) be for the treatment of an acute musculoskeletal or neuromuscular condition or an acute
exàcérbation of a chronic musculoskeletal or negromuscular condition;

   (C) be expected to improve the patient's condition in a reasonable and generally predictable-period of
tinìíUãrfiãnthe physician's asseìsment of the patient's restorative potential after any needed
consultation with the therapist; and

  (D) not be provided
services designed to m
not a benefit. Sorvices
exercises to promote overall fitness and flexibility
motivation are not reimbursable'

 (6) Occupational therapy. To be payabte as a home health benefit, occupational therapy services must
be:

                                 scunently registered and licensed by the Texas Board of Occupational
                                 occupatioîal Iherapist assistant who is licensed to assist in the practice of
                                 upervised by an occupational therapist;

   lB) for the evaluation and function-oriented treatment of individuals whose ability to function in life
t"ù;i;h;;;d          by recent or cunent physical illness, injury or condition; and


ro
ph
                                             å1T;;;'3trülilíi"å:i;åi:i'lig'î:Î"î:ffiåiåirl;åTÍ.

                                                                                         requirements to
  (7) Insulin syringes and needles. Insulin syringes and-needles must meet the following
 qùufify for reímbursement under Medicaid home     health services.

   (A) pharmacies enrolled in the Medicaid Vendor Drug Progrîn.may dispense insulin syringes
                                                                                             and
 n"èàí.r i" ãtigitf. Medicaid recipients with a physician's prescription.

      (B) prior authorization is not required for an eligible recipient to obtain insulin syringes and needles.

    (C) Insulin syringes and needles obøined in accordance with this section will be reimbursed
                                                                                                through
 the Medicaid Vendor Drug Program'
                                                                                              syringes and
   (D) A physician's plan of care is not required for an eligible recipient to obtain insulin
 needles under this section'

                                                                                             equipment
  (g) Diabetic supplies and related testing equip_ment, Diabetic supplies and 1el{ed testing
                                                                             Medicaid home health
 must meet the following requirements tõquãliry for reimbursement under
 services.

      (A) diabetic supplies and related testing equipment must be prescribed by a physician;



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: Texas    Administrative Code                                                                                                        Page 6   of6


  (B) prior authorization is required unless otherwise specified by the department; and

(b) Home health service limitations include the following.

 (l)   Patient supervision,

                                                                                           in 30 days prior to the start of home health services.
                                                                                            s has already been established by the attending
                                                                                           tive medical care and treatment' Such a waiver is
                                                                                             evaluation visit is not medically necessary.

  (B) Patients receiving home health care services must remain under the care and supervision of a
physícian who reviewsãnd revises the plan of care at least every 60 days or more frequently as the
physician determines necessary.

 (2) Time limited prior authorizations.

Cont'd...



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http://i¡fo.sos,state,tx.us/pls/pub/readtac$ext.'l'acPage?sl:R&app:9&p-dir:&p-rloc:&p-tl.,                                                9lsl20l4
: Texas Administrative Code                                                                      Page 1   of2


<<Prev Rule
                               Texas Administrative                   Code                    NextRule>>

  TITLE         1                ADMINISTRATION
  PART 15                        TEXA"S HEALTH ANID HUMAN SERVICES COMMISSION
  CHAPTER 354                    MEDICAID HEALTH SERVICES
  SUBCHAPTER A                   PURCHASED HEAI,TH SBRVICES
  DIVTSTON 3                     MEDICAID HOME HEALTH SERVICES
  RULE $354.1039                 Home Healtlr Sen¡ices Benefrts and Limitations

   (A) Prior authorizations for payment of home health servioes may be issued by the departmentfol a
servióe period not to exceed 60 days on any given authorization. Specific authoizations may be limited
to a timè period less than the established                                    health services exceeds
60 days, ôr when there is a change in the                                    n prior approval and
retain the physician's signed and dated orders with

  (B) The provider shall be notified by the department in writing of the authorization (or denial) of
requested services,

    (C) Prior authorization requests for covered Medicaid home health services must include the
foll owing information :

    (i) The Medicaid identification form with the following information:

     (I) full name, age, and address;

     (II) Medical Assistance Program Identification number;

     (lII)     health insurance claim number (where applicable);

     (IV) Medicare number;

    (ii) the physioian's written, signed and dated plan of care (submitted by the provider if requested);

    (iíi) the clinical record data (completed and submitted by provider if requested);

    (iv)   a   description of the home or living environment;

    (v)    a   composition of the fanilylcategiver;

    (vi) observations pertinent to the overall plan of care in the home; and

    (vii) the type of service the patient is receiving from other community or state agencies.

  (D) If inadequate or incomplete information is_provided, the provider will be requested to furnish
additional documentation as required to make a decision on the request,

 (3) Medication administation. Nursing visits for the pufpose of administering medications are not
covered if:



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: Texas Administrative Code                                                                                                                        Page2 of2



    (A) the medication is not considered medically necessary to the treatment of the individual's illness;

   (B) the administration of medication exceeds the therapeutic frequency or duration by accepted
standards of medical practice;

    (C) there is not a medical reason prohibiting the administration of the medication by mouth; or

   (D) the patient, a primary caregiver, a famity member and/or neighbor has been taught or oan be
taught to administer intramuscular (IM) and intravenous (IV) injections,

 (4) Prior approval. Services or supplies furnished without prior approval, unless otherwise specified
by the department, are not benefits.

 (5) Recipient residence. Services, equipment, or supplies fu¡nished to a recipient who is a resident or
pàtíent in a hospital, skilled nursing facility, or intermediate care facility are not benefits.

(c) Home health services are subject to utilization review which includes the following:

                                                                         ing                                          a copy   ofthe plan ofcare and/or   a
s                                                                        me                                            health care service, suPPlY,
e                                                                        the                                          e needs; and


 (2) the home health services provider is                               re                                                  the amount, duration, and scope
oi services in the recipient's plan of care,                            th                                                  equest, and the client record
based on the physician's orders. This information                                      i                                    ctive review; and

 (3) the State or its designated contractor may establish_ ralqo- and targeted utilization review
pioô.r.", to ênsure the ãppropriate utilization of home health benefits and to monitor the cost
effectiveness of home health services.


Source Note: The provisions of this $354,1039 adopted to b_e effective June 26, 1997 ,22 TexReg
isie;amended to be effective July t:1999,24 TexReg 4365; transfened effective September l, 2001,
u, potlirh.d in the Texas Registei }/ray 24,2002,27 TexReg 4561; amended to be effective November
14, 2002, 27 T exReg 1 05 88

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                                                                                                                                      -rloc:9739
: Texas Administrative Code
                                                                                                 Page 1 of4



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                             Texas Administrative Code
                             ADMINISTRATION
                             TEXA,S HEALTH A}TD HIJMAN SERVICES COMMISSION
                             MEDICAID H EALTH SERVICES
                             PURCHASED HEALTH SERVICES
                             MEDICAID HOME HEALTH SERVICES
                             Requirements for l,Vheeled Mobility Systems

                                                                                       provision of or
(a) purpose. This section details the requirements for receiving reimbursement for the
ìÉ ilr'f"rr""nce of a major modification to, a wheeled mobility system. This section implements
 ç32,0424 of the Human Resources Code.

(b) Dehnitions. The following wolds a1f terms when used in this section shall have the
                                                                                       following
àãanings, unlçss the context clearly indicates otherwise'

 (l) Occupational therapist (OT)-A,person licensed by the Texas Board of Occupational Therapy
Bi-í^in.r, to practice oärupàioi therapy, as defined in g454.002(4), of the Texas occupations code
(relating to Definitions).
                                                                                           Examiners to
 (2) physical therapist (pT)--A persoï-r licensed by the Texgs Board of Physical Therapy
pì;Aõ jfrysical ttt"rupy, ás defined in g354.1121 of this chapter (relating to Definitions).
                                                                                  of the following
  (3) eualifred rehabilitation professional (QRP)--A person who holds one or more
 certifications:
                                                                                         engineering
   (A) Holds a certification âs an assistive technology professional or a rehabilitation
                                                                        Engineering   and Assistive
 tecLíologist iszued by, and in goodtk"glg-Yith,     the Rehabititation
 Technolõgy Society of North America [RESNA);
                                                                                    good standing with,
   (B) Holds a certification as a seating and mobility specialist issued by, and in
 RESNA; and/or
                                                                                        bY, and in good
    (C) Holds a certification as a certified rehabilitation technology supplier issue-d
                                                                       Suppliers  (NRRTS)'
 .tÀdir,g with, the National Registry of Rehabilitation Technotogy
                                                                     (DME)
  (4) Wheeled Mobility system--An item^of durable medical equipment           th{ is athe
                                                                                        customized
                                                                                          following
 pài"rro or manual;biíilð, e"vice or a feature or component of'the device, including
    (A) Seated positioning components;

    (B) Powered or manual seating options;

    (C) Speciaþ driving controls;

    (D) Multiple adjustment frame;

    (E) Nonstandard performance options; and



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: Texas Administrative Code                                                                           Page2 of 4




  (F) Other complex or specialized components,

                  onsibilities, The                     when referenced in this section, shall have the
                  the provision of                     e of a major modification to, a wheeled mobility
                   context clearlY i

  (1) Occupational therapist (OT)--The occupational therap                                                  ical
assessment of a recipient required for obtaining a wheeled
include detailed documentation of medical need for specifi
necessary accessories.

                                                                                   g the   clinical

                                                                                   ùïfiåHi*"li,
necessary accessories,

 (3) Qualified rehabilitation professional (QRP)--The QRP is required tor

  (A) Be present for and involved in the clinical   assessment of the recipient;


  (B) Be present at the time of delivery of the wheeled mobility system to direct the fitting of the
*nàete¿ mobility system to ensure that the system is appropriate for the recipient; and

   (C) Verify that the wheeled mobility system fr¡nctions correctly relative to the recipient.

 (4) A person that is licensed as an OT and/or a PT, and is also certified as a QRP, may perform.eilhel
thìiorei of the therapisi ãi the Qnp during the clinical assessment of the client, but cannot serve in both
roles at the same time.

(d) Beneht. Wheeled mobility systems are a Medicaid benefit when the following criteria are met,

 (l) Allthe requirements for DME, as detailed     in $354.1039 of this chapter (relating to Home Health
Services Benefits and Limitations) are met.

 (2) Wheeled mobility systems are provided by an enrolled DME supplier that directly employs or
contracts with a QRP,

 (3) An enrolled DME supplier obtains prior authorizationfor wheeled mobility systems from the
fèias Health and Human Services Commission (HHSC) or its designee.
(e) prior authorization requiremdnts, The following documentation must be submitted in a manner
àpprou.O by HHSC or its designee to obtain prior authorization for a wheeled mobility system'

  (1) A signed and dated physician's prescription, or-other such document¿tion as directed by IIHSC,
tt uí o"taír a wheeled .óuiiity ryrte-, including all necessary components, needed by the recipient;

 (2) A clinical assessment that includes detailed documentation of medical need for specific mobility or
,àuíing equipment and all necessary accessories, signed and dated by an oT or PT authorized to
perform the assessment;



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: Texas Administrative Code                                                                      Page 3   of4


 (3) Documentation in a form or manner directed by HHSC or its designee attesting that a QRP was
present for and involved in the clinical assessment of the rocipient; and

 (4) Any other dooumentation deemed necessary by HHSC or its designee to adequately explain the
medical necessity of the requested equipment.

(f¡ Requirements for reimbursement. Reimbursement for the provision of, or the performance of a
major modification to, a wheeled mobility system will be oonsidered only when:

 (1) The system is delivered to a recipient by a Medicaid-enrolled DME provider that directly employs
oi óontracis with, a QRP, and the QRP was present and involved in the clinical     assessment   of the
recipient for the requested wheeled mobility system;

 (2) At the time the wheeled mobility system is delivered to the recipient, the QRP is present and
responsible for:

  (A) directing the fitting to ensure that the system is appropriate for the recipient; and

  (B) veriffing that the system functions conectly relative to the recipient.

(g) Documentation requirements for reimbursement, The following documentation must be submitted
ùy tt enrolled DME iupplier with the claim for consideration of reimbursement for a wheeled mobility
     " in a manner approved by HHSC or its designee,
system

 (l) A signed and dated HHSC DME      Certifrcation and Receipt Form as required in $354'1185 of this
                                                                           (DME) Certification
        lretating to Provider Complianoe with Durable Medical Equipment
"¡upt.t
Requirements); and

 (2) Documentation in a form and manner as directed by HHSC or íts designee attesting that a QRP
was present at the time of delivery and:

   (A) directed the fitting of the wheeled mobility system to ensure that the system was appropriate for
the recipient; and

  (B) verified that the wheeled mobility system functions correctly relative to the recipient.

(h) Effective dates for services provided. The provisions of this section apply to the following services:

 (1) Wheeled mobilþ systems delivered on or after September        7,20II;

 (2) A major modification to a wheeled mobility system provided on or after September I,2011; and

 (3) QRP functions, including participating in a clinical¿ssessment of a client and directing the f,ttting
oiá *t eeted mobility system, ielated to the provision of, or a major modification to, a wheeled
mobilíty system when:

   (A) the wheelod mobility system is delivered on or after September 1,2011; and

  (B) the eRP frrnctions are performed after the effective date of the associated rates as determined by
HHSC.



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: Texas   Administative Code                                                           Page 4   of4



Sourco Noto: The povisions of this $354.1040 adopted to be effective February 3,2011, 36 TexReg
407

                                      Next      Pâge            Prevíous     Page




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: Texas    Adminishative Code                                                                                           Page   I of 1


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                                                ADMINISTRATTON
                                                TEX,\S HEALTH ANTD HUMANT SERVICES COMMISSION
                                                MEDICAID HEALTH SERVICES
                                                PURCHASED HEALTH SERVICES
                                                MEDICAID HOME HEALTH SER\rICES
                                                Benefits for Medicare/Medicaid Recipients

For recipients who are eligible for both Medioare and Medicaid (dual eligible), Medicare is the primary
payor.

 (1) Medicaid   wil                                              eduotible and coinsurance subject to the limitations described in
$jS+.f 143  of this                                              to Coordination of Medicaid with Medicare Parts A, B, and C)
for qualified recip                                               services.

  (2) Eligible recipients who have exhausted their home health benefits under Medicare are not entitled
to rêceiie all home health services under the Medicaid program. Home health aide services, DME,
supplies, or appliances may be a covered service if:

  (A) an eligible Medicaid recipient enrolled in Medicare does not glalifu for home health services
unà.í Medicäre because skillednursing care, physical therapy, speech therapy or occupational therapy
is not an essential element of the recipient's treatment plan; and/or

   (B) the medical supplies, equipment, or appliances for use in the eligible recipient's place of
resid"nce are not otherwise available as a Medicare Part B benefit.


Source Note: The provisions of this $354.1041 adopted to be effective June 26, 1997,22 TexReg
5826; transfened eifective September 1, 2001, as published in the Texas Register May 24,2002,27
TexReg 4561; amended to be effective January 1,2012,36 TexReg 9282

                                                          Nczl:     P;r.ge                l?re\¡iol-rs Page




          ilrll'1t |   il,il\j lttûiiTti I itl,1i li,llllil!Tl.tTl?t (tltrt I iitttl llttlllrtr! I lltri   I




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: Texas   Administrative Code                                                                        Page   I of2


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                                ADMINISTRATION
                                TÐ{ÀS HEALTH AI..[D HUI\4AN SERVICES COMMISSION
                                HEARINGS
                                UNIFORM FAIR HEARING RULES
                                Hearings Offr cer Responsibilities


(a) Fair hearings are conducted by an impartial hearings officer who:

 (1) does not have a personal involvement in the case;

 (2) was not involved in the initial determination of the action that is being contested; and

  (3) was not the agency representative who took the action or the immediate supervisor of that
representative.

(b) The hearings officer's supervisor may reassign the fair hearing to another officer.

(c) Responsibilities. The hearings officer conducts the fair hearing as_an informal proceeding, not as a
ioimal õourt hearing, and is not required to follow the Texas Rules of Evídence or the Texas Rules of
Civil Procedure.

 (1) General duties, The hearings offtcerl

   (A) determines whether       a   client requested a fair hearing in a timely manner, or had good cause for
failing to do so;

      (B) schedules   a pre-hearing conference to resolve issues   ofprocedure, jurisdiction, or representation,
if   necessary;

      (C) requires the attendance of agency representatives, or witnesses, if necessary;

    (D) is prohibited fiom engaging ín e¡ parte communication, whether oral or witten, with a party or
tlte pá¡yt representative orwftnels relating to matters to be adjudicated; and

      (E) auanges for reasonable accommodations for disclosed disabilities.

     (2) During the hearing, the hearings offïcer:

      (A) makes the official recording of the hearing;

      (B) ensures that the appellant's and agency's rights are protected;

      (C) determines whether there is a need for an interpreter;

      (D) limits the number of persons in attendance atthe hearing if space is limited;


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: Texas   Administrative Code                                                                                                                 Page2 of2



  (E) controls the use by others of cametas, videos, or other reoording devices;

  (F) administers oaths and affirmations;

   (G) ensures consideration of all relevant points at issue and facts pertinent to the appellant's situation
at the time the action was taken;

  (H) considers the appellant's changed circumstances, when appropriate and possible;

  (I) requests, receives, and makes part of the record all relevant evidence;

   O   regulates the conduct and coutse ofthe fair hearing to ensure due process and an orderly hearing;

   (K) conducts the hearing in a way that makes the appellant feel most                                                        at ease; and


  (L) orders, if determined to be necessary, an independent medical assessment or professional
evàlúation to be paid for by the agency or the agency's designee,

 (3) After the hearing, the hearings officer:

   (A) makes a decision based on the evidence presented at the hearing;

   (B) determines if the agency's or its designee's action is in compliance with statutes, policies, or
procedrues;

   (C) allows the appellant to request and receive a copy of the recording at no charge;

   (D) except as provided in subparagraph (E) of this parugraph, issues a timely written decision, and
incìuâes nnaingi of fact, conclusions of law, pertinent statutes, and a final order;

  (E) issues a decision in THSteps cases cont¿ining the purpose of the hearing, the legal authority,
p.õa*a history, surnmary of ihe evidence, findings of fact, conclusions of law, and relevant
authorities; and

   (F) to ensure compliance, orders the agency, its represenlative or designee to implement the order
*iìhí,,.in. äme limiti specifred in the relévant fede¡'al regulation, monitors compliance with the ordet,
and notifies program management if the order is not implemented,


Source Note: The provisions of this $357.5 adopted to be effective June 29,2009,34TexReg4292

                                                                 llcxl.       P.ìge                     Pr-e.,,ir>us F¿cte




                                                                 of Titles


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Texas Administrative Code                                                                                                    Page    I of I


                                                                                                                                   Rul*>
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                                             ADMINISTRATION
                                             TEXAS HEALTH AND HUMAN SERVICES COMMISSION
                                             HEARINGS
                                             UNIFORM FAIR HEARING RULES
                                             Agency and Designee Responsibilities

(a) The agency must:

 (l) accept a request for a fair hearing submitted within 90 days from the date on the notice of agency
actíon, or, under the Supplemental Nutrition Assistance Program, at any time during the SNAP
certification period;

 (2) notiff the HHSC Appeals Division within frve days of the date the client expresses a desire to
appeal; and

 (3) allow the client to appeal more than one action at the same time.

(b) The agency or the agency's representative or designee must:

 (l)   allow the appellant to review the appeal procedures in HHSC's policies;

 (2) provide to the hearings officer and the appellant, at no cost, copies of all documentation and
evidence to be used in the fair hearing;

 (3) appear at the scheduled,hearing;

 (a) be prepared to explain and defend the decision or action taken against the appellant; and

 (5) implement the hearings offrcer's final order within the time limit specifred in the relevant federal
regulation.

Source Note: The provisions of this 5357,7 adopted to be effective June 29,2Q09,34TexReg4292

                                                        ¡l e   >i   1;   !''.ì   cf   È   F   r':¡.; i cir   s I)agc




                                                  List of Titles                                                  to List


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htþ://info,sos.state.tx,usipls/pub/readtac$ext,TacPage?sl=R&app:9&p-dir:&p-rloc:&p-tl.                                       ..    91512014
: Texas   Administrative Code                                                                                                 Page    I of I


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                                            ADMINISTRATION
                                            TEX,{S HEALTH A\TD HUMAN SERVICES COMMISSION
                                            HEARINGS
                                            UNIFORM FAIR HEARING RULES
                                            Burd.en of Proof in a Fair Hearing

The burden of proof in a fair hearing regarding a specific issue is progf_bf a preponderance of the
evidence. The irarty that bears the burdãn of pioof meets the burden if the stronger evidence, on the
whole, favors that barty, as determined by the hearings officer. Depending on the type of hearing, the
following apply:

 (1) The agency or its designee bea¡s the burden ofproof'

 (2) The nursing facility bears the burden of proof in transfer and discharge hearings.

Source Note: The provisions of this $357.9 adopted to be effective June 29,2009,34'fexReg4292

                                                         Ne>tt Pilc¡i:                        Pler¡i ous             Page:




                                                        of


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: Texas Administrative Code                                                                       Page     I of2


<(Prev Rule
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                             ADMINISTRATION
                             TEXA,S HEALTH AND HUMAN SERVICES COMMISSION
                             HEARINGS
                             UNIFORM FAIR HEARING RULES
                             Notice and Continued Benefits

(a) The agency must:

 (l) follow the notice requirements   set forth in the appropriate state or federal law or regulation for the
affected program;

 (2) give clients timely and adequate notice, as appropriate, of the right to a fair hearing;

 (3) explain the right of apPeal;

 (4) explain the procedures for requesting anappeal1,

 (5) explain the rightto be represented by others, including legal oounsel;

 (6) provide information about legal services available in the community;

 (7) continue benefits if required to do so by state or federal law or regulations of the affected program;
and

 (8) not reinstate or continue SNAP benefits-if a client requests a fair hearing after the date his
certification period has ended'

(b) In Medicaid cases, except as specifically provided in federal regulations, the following apply:

 (1) The written notice to an individual of the individual's right to a hearing must:

   (A) contain an explanation of the circumstances under which Medicaid is continued if a hearing is
requested; and

  (B) be mailed at least l0 days before the date the individual's Medicaid eligibilily or service is
scheáuled to be terminated, suspended, or reduced, except as provided by federal rules.

 e)If    ahearing is requested before the date a Medicaid recipient's service, including a service that
,"qnir"r prior aúthorization,is scheduled to be terminated, suspended, or reduced, the agency may not
tate tfrat proposed action before a decision is rendered after the hearing unless:

   (A) it is determined at the hearing that the sole issue is one of federal or state law or policy; and

  (B) the agency promptly informs the recipient in writing that services are to be terminated,
suspended, or reduced pending the hearing decision'




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: Texas Administrative Code                                                                                               Page2 of2



Source Note: The provisions of this $357.11 adopted to bc effective June 29,2009,34TexReg4292

                                                       Next         Page                       Previous            Fage




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: Texas Administrative Code                                                                       Page   I of2


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  TITLE I                      ADMINISTRATION
  PART      15                 TE)G,S HEALTH AI.ID HUMAN SERVICES COMMISSION
  CHAPTBII3ST                  HEARINGS
  qUBCHAPTETI A                TINIFORM FAIR HEARING RULES
  RULE $3s7.13                 Appellant Rights and Responsibilities

(a) Requesting an Appeal. Only the appellant or the appellant's authorized representative has the right
to appeal an action bY an agencY'

(b) Dwing the appeal process, the appellant has the right to;

 (1) reapply for assistance;

 (2) receive continued benefits ifrequired by state or federal regulation or statute;

 (3) confer with supervisory staff within the appropriate agency about the case prior to the hearing;

  (4) continue with the fair hearing after a case adjustment or correction is made;

 (5) request that reasonable accommodations due to disability or language comprehension be provided
at the hearing at no cost;

  (6) make an audio recording of the fair hearing;

  (7) examine at a reasonable time before the date of the hearing and during the hearing:

   (A) the content of the appellant's case file; and

  (B) all documents and records to be used by the agency or the skilled nursing facility or nursing
facility at the hearing;

  (8) review the appeal procedures outlined in agency policy; and

  (9) request a copy ofthe official recording at no charge after the decision is issued.

   An
 (c)                                                      al counsel may send written interrogatories or.
reques                                                    rmation. The written interrogatories mustte clear
and co                                                 d be submitted no less than 20 days prior to the
 hearing,

 (d) Procedural Rights. The appellant has the right to:

  (1) present the case personally or   with the aídof others, including but not limited to the appellant's
 representative or legal counsel;

  (2) bring witnesses;



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: Texas Administrative Code                                                                                               Page2 of2



 (3) present information about all pertinent facts and circumstances;

 (4) present arguments or address anything about the case without undue interference;

 (5) confront and cross-examine adverse witnesses; and

  (6) submit documentary evidence to the hearings officer before, during, or after the hearing as allowed
Uy ífre hearings officer. Evidence submitted after the hearing, if accepted, must be entered into the
record and shared with all parties'

(e) Appellant's Responsibilities, The appellant or the appellant's authorized representative is responsible
for:

 (1) participating in the fair hearing; and

 (2) informing the hearings officer prior to the fair hearing that the appellant needs an interpreter or
other accommodation due to a disability.


Source Note; The provisions of this $357.13 adopted to be effective June 29,2009,34TexReg4292

                                                   trlrly.1. P:.iqc                 1:r, q19 ir..r¡1   5 P.¡r¡c




                                            List of Titles                                                 Back to List


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: Texas   Administrative Code                                                                                                                 Page 1   of I


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      TITLE I                                   ADMINISTRATION
      PART 15                                   TEXAS HEALTH AND HUMAN SBRVICES COMMISSION
      CHAPTER 357                               HEARINGS
      SUBCTIAPTER A                             UNIFORM FAIR HEARING RULES
      RULE S357.1s                              Scheduling Hearings and Notice Requirements

(a) Scheduling:

 (1) Except as provided by paragraph (2) ofthis subsection, the hearings officer schedlles fair hearings in the
oi¿êr in whi"tt ihe requests âre rèceived and determines a reasonable date, time, and place for the fair hearing,

  (2) For good cause, the hearings officer may schedule fair hearings other than in the order in which the
requests were received.

  (3) The hearings officer must expedite hearing requests as provided in $357.17(b) of this subchapter (relating
to Types of Hearings).

(b) Notioe Requirements. No less than 14 days prior to the                                         fq
                                                                hearing, the fair hearings.office sends all parties
ùotl"r of the dàte, time, and place of the scheduled hearing. The notice informs the appellant:

 (l) ofthe    basis for the action or intended action taken by the agency or its designee;

 (2) ofthe fair hearing Procedures;

 (3) of the name, address, and telephone number of the person to notiff in the event the appellant cannot attend
the hearing;

 (4) of legal services that may be available to provide representation at the hearing;

 (5) ofthe requirement to contact the hearings officer before the soheduled hearing to request reasonable
aôcommodations due to disability or language comprehension;

 (6) that the fair hearing           will    be dismissed for failure to appear without good cause;

 (7) that documents to be used in the fair hearing are available for appellant's examination at a reasonable time
before, during, and after the hearing; and

 (8) that the case file is available for review upon request.

Source Note: The provisions of this $357,15 adopted to be effective June 29,2009,34TexReg4292

                                                              llrlxl      Facìai                  ¡¡¡;.7jr,rr1s       pDcle




                                                      Llst of Titles


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: Texas   Administrative Code                                                                        Page    I of 2


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                            ADMINISTRATION
                            TEXA,S HEALTH AND HUIVIAN SERVICES COMMISSION
                            HEARINGS
                            UNIFORM FAIR HEARING RULES
                            Other Procedures

(a) Postponement, The hearings officer considers a posþonement for a hearing only if the appellant or
his authorized representative oontacts the appropriate appeals office before the scheduled hearing is to
occur.

 (l) SNAP Fair Hearings--The appellant is entitled to receive one posþonement of up to 30 days.
Additional posþonements may be approved if the hearings offioer determines that there is good oause.

 (2) All other Fair Hearings--The hearings offrcer may posþone a fair hearing       if the hearings offtcer
determines that good cause exists,

 (3) The hearings officer must state in writing the decision on the request to postpone and send it to the
appellant and agency,

(b) Dismissals.

 (1) The hearings officer dismisses the fair hearing   if the appellant fails to appear   at the scheduled
hearing,

  (2) The appellant will have 30 days to submit in writing a request to re-open the hearing and the
reasons that he failed to appear at the scheduled fair hearing.

 (3) The hearings officer will consider the request and determine whether the appellant had good cause
for missing the écheduled hearing, If the hearings officer detormines the appellant had good cause for
failing to ãppear, the hearings officer will re-open the hearing and set a new hearing date'

 (4) The hearings officer documents the dismissal in writing and sends the decision to the parties.

(c) 'Withdrawals,

 (1) Only the appellant or his or her authorized representative can withdraw the request for appeal'

  (2) The appellant or his or her authorized representative must make the request to.withdraw in writing
tothe hearings offioer, anageîoy representative, or designee.

 (3) If the appellant or his authorized                                 to withdraw the appeal, he mu_st
                                                                                                          -
cònfirm theiãquest in writing. If a wr                                  the hearings officer must notiff the
appellant in writing that if thé written                                 l0 days, the appeal will be
withdrawn based upon the original oral request'

 (a) An oral request to withdraw during a hearing   will   be accepted in lieu of a written withdrawal'



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: Texas   Administrative Code                                                                                                 Page? ofZ



  (5) If an appellant dies during the appeal process, the hearings officer considers the appeal withdrawn
unless the hearings offìcer is notified that the authorized representative or the appellant's executor
intends to pursue the appeal.

(d) Recessed Fair Hearings, Once the hearing has begun, the hearings officer may recess the hearings
proceedings if the hearings officer finds good cause for the recess. Following notice to both sides, the
hearings officer may reconvene the hearing, if necessary,

(e) Administrative Review, An administrative review of a hearings decision is provided as set forth in
$$357.701 - 357.703 of this chapter (relating to Purpose and Application, Definitions a¡rd Process and
Timeframes).

(f) Procedural Review. A procedural review is available to clients and applicants for hearings decisions
relating to programs not covered under Chapter 31 (TANF), Chapter 32 (Medicaid), or Chapter 33
(Nutrition Assistance Programs) Human Resources Code.

 (1) An appellant or his or her authorized representative may make a timely request for a review of the
decision,

  (2) A request for a review of the decision must be postmarked within 30 days of the date of notice                                 of
the hearings officer's decision, and must be addressed to the hearings administrator.

 (3) The scope of the review is limited to determining whether the hearings officer followed laws,
procedures, and program rules introduced in the hearing,


Source Note: The provisions of this $357.19 adopted to be effective June 29,2009,34 TexReg 4292;
amended to be effective June 14,2010,35 TexReg 5033

                                                            Nex    L   f aqe                   ['r](:rv-i-ous Iracle




                                                                                                                       Llst

                   .Itl{¡5
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http:/iinfo.sos,state.tx.us/pls/pub/readtac$ext,TacPage?sl:R&,app:9&p-dir:&p-rloc=&p-tl..                                     .   915/2014
: Texas   Administrative Code                                                                   Page   I of2


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                             ADMINISTRATION
                             TE)GS HEALTH A}TD HUIVIAN SERVICES COMMISSION
                             HEARINGS
                             UNIFORM FAIR HEARING RULES
                             Hearings Offrcer Decision and Actions

(a) Time Limits for Issuing Decisions.

 (1) SNAP hearings--60 days from the date the appeal request is received by the agency or designee.

 (2) Non-SNAP hearings--90 days from the date the appeal request is received by the agency or
designee.

 (3) The time limit for issuing a decision may be extended by as many days as the fair hearing is
postponed or recessed at the request ofthe appellant.

(b) Decisions by Hearings Officer. The hearings offtcer issues a decision based exclusively on
testimony and evidence introduced at the hearing. The hearings offtcer must:

 (1) issue a written decision in English;

 (2) provide the appellant with a copy of the decision; and

  (3) provide a tanslated cover letter in Spanish for hearing decisions where a Spanish interpreter was
use¿, fne cover letter instructs the appellant to call the hearings officer if he needs assistance to
understand the decision. An appellant who indicates by telephone, in person, or in writing tþat
assistance is needed to understand the decision must receive an explanation of the hearing decision
from bilingual persomel within a reasonable period.

(c) Sustained Decisions in THSteps Appeals--If the decision sustains the agency action reducing,
suspending, denying, or terminating a requested service:

 (l) on the basis that there is no federal financial participation, the decision must contain an
eìplanation of the basis for the hearings officer's decision, applying the state and federal law to the
individual's particular request; or

  (2) on the basis that the servioe is not medically necessary, the decision must contain an explanation of
the medical basis for the hearings offlrcsr's decision, applying the agency's policy or the accepted
standards of medical practice to the individual's particular medical circumstances; and

 (3) All THSteps decisions must contain legal authority, purpose of the hearing, procedural history,
summary of evidence, relevant authorities, findings of fact, and conclusions of law,

(d) Decisions that are Reversed. The hearings offrcer reverses a decision of the agency or designee if
thä action or inaction is not supported by the evidence introduced at the hearing, and is not supported
by statutes, policies, or procedures applicable atthe time the action or inaction occurred. The agency


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: Texas   Administrative Code                                                                                                                      Page2 of2


may be instructed to issue retroactive payments or restored benefits in accordance with applicable rules,
regulations, and statutes,

(e) Decisions that are Upheld. The hearings officer upholds a decision of the agency or its designee                                                      if
the action is in accordance with statutes, policies, and procedures introduced at the hearing,

(f) Reopened Hearings--Appellant. The hearings officer may reopen an appeal and reconsider the
decision if, within l2 months of the decision date, the appellant presents evidence that:

 (1) the hearings offrcer has determined the information would have affected the outcome of the
original decision;

 (2) shows the original decision was not valid; and

 (3) was not presented at the hearing by the appellant.

(g) Authority of the Hearing Officer to Re-issue a Decision. The hearings offìcer has the authority to
withdraw, revise, and re-issue a decision, The hearings officer may re-issue the decision within 20 days
of the date of the original decision if the hearings offtcer becomes aware of an error of law or fact that
would have affected the outcome of the deoision.

Source Note: The provisions of this 5357 .23 adopted to be effective June                                                      29   , 2009 , 34 TexReg 4292

                                                            I'J<':xt- i'i'i,.;l'.           f.r:r,ir;u-s IarJ':



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Texas Administrative Code                                                                                                                    Page   I of   I



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TITI,E    1                                ADMINISTRATION
PART     15                                TEXAS HBALTH A}ID HUMAN SERVICES COMMISSION
C]ITAPTER 357                              HEARINGS
SUBCHAP'IIIR R                             JUDICIAL AND ADMINISTRATTVE REVIEW OF HEARINGS
RULE $357.701                              Purpose and Application

The purpose of this subchapter is to address the process for requesting administrative and judicial
review ófhearings. This subchapter applies to those hearings provided in this chapter that are related to
benefits provided under the public assistance programs of Chapters 3 I (TANF), 32 (Medicaid) and 33
(Nutrition Assistance Programs) Human Resources Code,

Source Note: The provisions of this $357.701 adopted to be effective September                                                      l, 2007,32 TexReg
5353;amended to be effective June 14, 2070,35 TexReg 5033

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: Texas Administrative Code                                                                     Page   I of2

<<Prev Rule
                           Texas Administrative                       Code                   NextRule>>

TITLD    1                ADMINISTRATION
PART 15                   TEXAS HEALTH A}TD HI,]MANT SERVICES COMMISSION
CHAPTER 357               HEARINGS
SUBCHAPTDR R              JUDICIAL A\TD ADMINISTRATTVE REVIEW OF HEARINGS
RULE $3s7.703             Process and Timeframes

(a) The hearing offrcer makes the final administrative decision in a hearing for the HHS System agency
and its designees, unless, in those instances related to benefits provided under the public assistance
programs of Chapters 31,32 and33, Human Resources Code, the appellant or the appellant's
representative files a request for an adminisüative review of the hearing decision.

(b) The following provisions establish the process and timelines for an administrative review under this
subchapter.

 (1) An appellant or the appellant's representative may make a timely request for an administrative
review of a hearing officer's decision,

 (2)To be timely, a request for an administrative review of the hearing offtcer's decision must be
postmarked not iater than the 30th day after the date of the notice of the decísion and must be addressed
to the hearings administrator, A request for administrative review will be considered timely if filed after
30 days, where Appellant demonstrates good cause. Exception: The 30 days does not begin until a new
decision is issueôif the appellant or appellanfs representative is working with the hearing officer to
reopen or reschedule the hearing.

 (3) Within l0 days of receipt of the request for administrative review, the Commission designates a
HHS System attomey to haridle the administrative review of the hearing decision on behalf of the HHS
System Agency. The assigned attorney reviews the hearing decision and the hearings record upon
which it iJbased for error,s of law and errors of fact using the "preponderance of evidence" standard.
This standard means that the evidence as a whole shows that the fact sought to be proved is more
probable than not.

 (4) The attomey completes the administrative review and notifies the appellant in writing of the results
not later than the 15th business day after the date the attorney receives the request for review.

 (5) When an administrative review is conducted, the attorney makes the final decision for the HHS
system agency and its designees.

(c)If the attomey's final decision in the administrative review is adverse to the appellant, judioial
review may be obtained by filing for review with a district court in Travis County not later than the
30th day after the date of the notice of the final decision as provided under Government Code Chapter
2001.

SourceNote:Theprovisionsofthis 9357.703 adoptedtobeeffectiveSeptembert,200T,32TexReg
5353; amended to be effective June29,2009,34 TexReg 4292; anended to be effective June 14, 2010,
35 TexReg 5033




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: Texas   Adminishative Code                                                                Page2 of2


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APPENDIX 5
                                         r




TE)ITS MEDICAID
PnOVIDER PNOCEDURE                              S MAN   UAt

                              Volume     PNOVIDER
                                     2   HNSDBOOKS

        DURABI¡ MEDICAI EqU IPMENT, MEntCnl SUpPLIES,
          AND NUTRITIONAI- PROOUCTS HAN DBOOK

ancl Hunt¡tn Scrvíccs Colnlrirsìon
TE)(AS MEDICAID Pfl0VIDER PR0CEDURES   MAIIUA[: V0[.          2




     DURABLE MEDICAL EQUIPMENT, MEDICAL
      SUPPLIES, AND NUTRITIONAL PRODUCTS
                               HANDBOOK




                             u|    TEXAS
                                       Health   and   Human
                                       Servlces Commlssion




                                 January 201          Z
TEX,{S MEDICÂID PROVIDER PROCEDURFJ MANUAL: VOL.2




                                                                   DM-2
                             CP'I' ONLY . COPYRJGTfT 20I I AMßRICAN MIiDICAL ÁSSOCÍÀTION. ALL NGHTS ßESIjRVBD'
                            DURABLE MBDICAL EQUIPMENT, MEDICAL SUPPL¡ES, AND NUTRITIONAL PRODUCTS HANDBOOK




DURABLE MEDICAL EQUIPMENT, MEDICAL
SUPPLIES, AND NUTRITIONAL PRODUCTS
             HAN DBOOK

Table of Contents
1. Generlllnformatlon                                                                                         .'"""DM-9
2, Texa¡ Medlcald (Tltle XIX) Home Health Servlce¡                                                                " 'DM-9
   2,1 Enrollment.                                                                                              ""'DM-9
       2,1 ,1 ChangeofAddressorTelephoneNumber                                                                """'DM'l0
       2.1,2 Pendlng Agency Certlflcatlon ,                                                                        ' ' DM-l 0
   2.2 Servlces, Beneflts, Llmltatlons and Prlor Authorlzatlon                                                 ' ' ' ' 'DM'f 0
       2.2.1 Home Health Servlces.., ,. '.                                                                      ., ,,, DM-l1
           2.2.1.1 CllentEllglbllity'..,,.
           2,2,1.2 Prior Authorlzation Requests for clients with Retroactlve Ellglblllty . ' ' '        DM-l1
           2.2.1,3 Prlor Authorlzat¡on.  .
                                                                                                        DM.l2
       2,2.2 Durable Medical Equipment     (DME) and Supplles,.. , . .,                                 DM-I3
                                                                        '
           2.2,2,1 Modìflcations,Adjustments,and Repalrs.
               2,2,2,1.1 Accessorles,
           2,2,2,2 PriorAuthorlzation'.                                                        ""'DM-ló
       2,2.3 Medical SuPPlles,'                                                                     ,. DM-l8
                                                                                                    . . DM-19
           2,2,3.1 5upplY Procedure Codes
           2,2,3,2 PrlorAuthorlzation...,.,                                                         ,. DM-19
           2.2,3,3 Cancelllng a Prior Authorizatlon   ,                                               ' DM-20
       2,2.4 Augmentatlve Communlcatlon       Device (ACD) System                                 " ' ' DM-20
           2,2,4,1 AGDSystemAccessories.                                                  "'"'''DM-22
               2,2,4.1.1 CorrytngCose,,,                                                         ""'DM-22
               2,2,4,1,2 Nonwarrantyïepolrs,,                                               ''"''"DM-22
               2,2.4,1,3 Trlal Perlod .                                                            ...DM-22
               2.2.4.1,4 Rental                                                                    .,. DM-23
                2.2.4.r.5     Purchase                                                                             ...DM-23
              2,2,4.1,6 RePlacement',,,"',                                               .DM-23
              2,2.4.1,7 Software                                                        ,,DM.23
           2.2.4,2 Non-Covered ACD System ltems,. ' ' ' '                                  DM-23
           2,2.4,3 Prlor Authorlzatlon '                                                    ÐM-24
       2,2,5 Bath and Bathroom   EqulPment.
           2.2.5.1 Hand-Held Shower Wand . . ..
           2.2,5.2 BathEqulPment.                                                     ,., DM-26
               2.2.5.2,1 Eoth or Shower Cholrs,Tub Stool or Bench, Tub Transfer Bench     ' DM-26
                                                                                            DM-27
           2,2,5.3 Bathroom EquiPment
                2.2.5,3.1     Non-flxed Totlet Rall, Bothtub Roll Attochment, and Rolsed Tollet Seat, , DM-27
                2.2,5.3,2     Toilet Seot Llfts , ,.,, .,
               2.2.5,3,3      Commode Cholrs and Foot Rests'
               2,2,5,3,4 Portoble Sltz Bdth ', ' .,
               2.2.5.3.5 Both Llfts                                                                                    DM-30
            2,2,5.4 PriorRutfrortzat¡on
            2.2.5.5 Documentatlon Requlrements,                    '''
                2,2.5,5.1 Tollet Seat Llfts


                                                                 DM.'
                        CPl'ONLY ' COgYRICHT   ZO¡   I AMERICAN MEDICÁL ASSOCIATfON. ALL RICTI'Is RISERVED'
rEX.As MEDIC^ID PROVIDER PROCEDURES MANU,\L: VOL,2




              2,2.6 Blood Pressure Devlces'                                                                                                   DM-32
                  2.2.6,1 Prior Authorizatlon,              .                                                                    . ,.. DM-33
                                                                '
                                                                                                                                 , ... DM-33
              2,2.7   Breast PumPs
                  2.2,7,1 PrlorAuthorlzatlon                                                                                       ,., DM-34
              2,2,8 Cochlear lmPlants..,.,., '                                                                                                DM-34
              2.2,g Contlnuous Passive Motion                   (CPM)   Devlce.                                              ""      ' ' ' DM-34
                   2.2.9.1 Prlor Authorlzatlon ' ' ,                                                                                          DM-34
              2.2.10 Diabetic Equlpment and 5upplies                                                                                          DM-34
                   2,2."t0.1 Obtalning Equlpment and SuPP lles Through a Title XIX Form. '                                       .   ,..      DM-35
                   2.2.10,2 Obtalnlng EquiPment and SuPP lles Through a Verbal or Detalled
                              Wrltten Order. ,                                                                                            ,   DM-3s
                   2.2,'10,3 Glucose Testing Equipment and Other Supplies,                                                            ' ' DM-36
                         2.2.10.3.1 PriorAuthorlzotion                                                                                        DM-37
                   2.2,10,4 Blood Glucose Monltors                                                                                        .   DM-37
                         2.2,10.4,1 PrlotAuthorlzation                                                                                        DM-37
                   2.2,10.5 External lnsulln Pump and Supplies.                                                                               DM-37
                         2.2.10,5,1 PrlorAuthor¡zatlon.,,                                                                                     DM-38

                   2,2J0.6 lnsulln and lnsulin Syringes.                                                                                      DM-39
              2,2, 11 Hospital Beds and Eguipment , '                                                                                 ,, DM40
                  2,2,11,1 Prlor Authorizatlon.,,,.,                                                                                  ,, DM-40
                  2,2,11,2 Documentatlon Requlrements, '. ' '.                                                                        ., DM-41
                  2,2,11,3 Mattresses and 5upport Surfaces , . '                                                                      ,, DM4l
                       2,2.t1.3,1          DocumentationRequlrements                                                                 ,,,DM-42
                       2,2,1   1.3.2       Group I SupportSurfaces. ',. '                                                                 ,.DM-42
                       2.2.1   1,i,3       GrouP 2 SuPPort Surfoces,
                       2.2.1   ,3.4
                               1           Group    j SuPPort Surfaces,                                                                       DM 44
                                                                                                                                              DM-45
                  2,2.11.4 Equlpment and Other Accessorles
                       2,2,1   L4,1        Prlor Authorlzotion                                                                                DM45
                  2,2,11,5     DecubitusCareAccessories,,.,,                                                                           "DM45
                  2.2,'11.6 Replacement,                                                                                                  ,, DM-46
                       2.2,1 1,6,1 Prlor Authorlzdtion                                                                                        DM.46
                  2.2.11,7 Non-covered ltems..,,,,,                                                                                           DM46
                   2.2.11.8 Hospital Beds and Equlpment Procedure Code Table                                  '                  ' ' ' ' ' DM-46
              2,2,'12 lncontinence SuPPlles'
                                                                                                                                     ... DM-47
                    2.2.12.1 Skln Sealants, Protectants, Moisturizers, and Olntments                              for
                                   lncontinence-Assoclated Dermatitis,,.                                                                  .,ÐM-47
                   2.2.12.2 Dlapers, Briefs, Pull-ons, and Liners , ,, '                                                                  ,. DM-48
                   2,2,12.3 DlaPer WiPes . ' , ., ,.                                                                                      .. DM-48
                   2,2J24 UnderPads.                                                                                                      ,. DM-48
                   2.2.'1'2.5 Ostomy SuPPlles " ' ,
                   2.2.12.6 lndwelling or lntermittent Urlne Collectlon Devices , " ' " '
                        2,2,12,6,1 Indwelllng Cathetets and Related Insertion Supplies' ' '
                        2.2.12.6.2 lntermtttent Cotheters and Relqted lnsertion Supplies '
                        2.2,12.6,3 ExternalUrlnaryCollectlonDevlces,'                                                        .,.....DM-50
                        2,2,12,6,4 Urinals and Bed Pans .                                                                    .......DM-50
                   2.2,12,7 Prior Authorlzatlon, , '                                                                         ,....,,          DM-50
                   2,2.12,8 Documentatlon Requlrements,.,, ' ', '.,, '                                                       ..., ,, . DM-50
                   2.2,'12.9 lncontinence Procedure Codes wlth Llmltatlons                                                   ,..,, ,, DM-50
               2,2.13 lntravenous (lV) Therapy Equlpment and Supplies ' ' ' '                                                .,..,,,          DM-5s
                    2.2,13.\ Prlor Authorization, , ,                                                                        .   ,., , ,, DM-56
                    2.2.13,2 Documentatlon Requirements.. '..                      ,
                                                                                                                             ....     ,   ,. DM-57



                                                                            DM.4
                                     CpI ONLY - COPYRICHT 20l I AN'lEftlCAN MBDICAL ASSOCIA'tlON'         RICHTS RtiSDRVüD
                                                                                                    ^LL
                        DURADLB MEDICAL EQUIPMENT, MEDIC.A,I, SUPPLIES, AND NUTRITIONAL PRODUCTS HANDBOOK




2.2.14 Mobility Aids.      ,.

    2,2,14,1     Canes, Crutches, and Walkers
    2,2J4.2 Wheelchairs,                                                                                                              DM-58
        2,2.14.2.1 PrlorAuthorlzation                                                                                                 DM-58
        2,2,1    4,2,2
                   Documentatlon Requlrements                                              DM-58
    2.2.14.3 Manualwheelchalrs-Standard, Standard Hemi, and Standard Reclinlng. , . . DM-59
        2.2,14.3.1 Prlor Authorlzatlon ', ' ,                                              DM-59
    2,2.14.4 Manualwheelchairs-Lightwelght and    Hlgh-strength Llghtwelght ,. , ,. , ,,.  DM-óo
        2,2,14.4.1 PrlorAuthorlzotlon                                                      DM 60
    2.2,14,5 Manual Wheelchairs-Heavy-Duty    and Extra Heavy                         .
                                                                                        '' DM-60 Duty
        2.2,14.5,1         Prlor Authorlzatlon              ,   ., . ' '                                                         ..DM-6t
    2,2.14,6 Wheeled Moblllty Systems ', ...                                                                                      .   DM-61
        2,2.14.6.1         Definitlons and Responslbilitles',,,,                                                                 ,.DM-61
         2,2,14,6.2        Prlor   Authorizatlon,.,,,,,                                                                          .. DM-62
         2,2,14.6.3Documentatlon Requlrements,',,',                                                                              .. DM-62
    2.2.14,7 Manual Wheeled Mobility System - Tilt-in-5pace                                                                         DM-ó3
    2.2.14.8 Manual Wheeled Mobility System- Pediatric Slze                                                                         DM-63
    2,2.14,9 Manual Wheeled Moblllty System -Custom (lncludes Custom
                 Ultra-Lightwelght) ,,, ', ,.                                                                                     .  DM-63
         2.2.14.9.1        Prior Authorlzatlon              ,                                                                       ,DM-64
    2.2.14.10 seatlng Assessment for Manual and Power custom                                      wheelchalrs.                   ' ' DM-ó5
         2.2.14,t0,1  PriorAuthorlzation...                                                                         ',.,".DM-65
         2,2,14.10,2 Documentatlon Requlrements                                                                                       ' DM'66
    2,2,14,11 Flttlng of Custom Wheeled MobilÍty Systems,                                                               '   ""        DM-66
         2.2.14,1 l,l Prior Author¡zotlon                                                                                             DM 67
         2.2.14,1    1,2 Documentat¡on Requlrements,'..'                                                                              DM 68
    2,2,14,12 PowerWheeled MobllltySystems-Group 1through                                          Group5           '   '' '"         DM-68
         2,2,14,12.1 Prior          Authorlzation...,','..,'                                                                          DM.69
                                                                                                                                      DM 69
         2.2,14,12.2       Group I PMDs "              ",
         2.2,14.12.3       Group 2 PMDs                                                                                     .....DM-70
         2.2,14.12.4       Group 3 PMDs                                                                                     .. , .. DM-70
                                                                                                                            ..,,.DM-71
         2.2,14.12.5       GrouP 4 PMDs           "
         2,2.1   4,12,6 2,2.14.12,6 Additíonol                      Requlrements - Group 2 thtough Group 4
                           No-Power Optlon.,                                                                                     ,. DM-72
         2,2,14,1    2,7   Group 2 through Group 4 Slngle-Power Option                                                           .. DM-72
         2,2,14.1    2.8   Group 2 through Group 4 Multlple'Power OPtlon                               ,,,,,   '    """"               DM-72

         2.2.14,12.9 Group           5 PMDs                                                                                            DM 72
         2.2.14.12,10 Group 5 MultlPle-PMDs...,,                                                                                       DM 74
     2,2,14,13 Wheelchalr Ramp-Portable and Threshold . '                                                           ,,,...DM-74
     2,2,14.14 Power Elevating Leg Llfts,                                                                           .,. , .. 0M-74
         2,2,1 4,1   4,1
                      Prior Authorlzotìon                                                                               ,.....DM-74
                                                                                                                        . ... .. DM-75
          2.2,14.14.2 Documentotlon Requlrements. '                                     '. ' '
     2.2.14.15 Power Seat Elevatlon System                                                                              .,..,.DM-75
         2.2.1 4,1   5,1    Prlor   Authorlzatlon,.',,                                                              ,,,.,..DM-75
         2.2.14.15.2 Documentatlon Requirements.                                       ...'.                        ,.....,DM-7s
     2.2.14,16 Seat Llft Mechanisms                ,
                                                                                                                        .,,,.,         DM-7ó
          2.2.14,16.1 Prlor Authorlzotion ,, '                       ,



          2,2.14,1 6,2 Documentatlon Requlrements                                  .                                        ,   ,... DM-76
     2.2.14,17 Batteries and Battery Charger., .'.                                ",                                            .... DM-76
          2.2.14.1 7.1 Prlor Authorlzation.,,,                                                                              ,., .. DM-77
          2,2,14.1 7,2 Documentatlon Requlrements                                                                           ...,.DM-77



                                                                           DM-5
                     CP'f'ONLY . COf)YRIGHT 2¡I   I ÁMERICÀN MEDIC¡{L ASSOCIATION' '{LL          RIGHTS RESERVBD.
TIiX S MBDICAÍD   PROVIDER PROCEDURES MANUÂL: VOL'                2




                      2,2.14,18 Power Wheeled Moblllty Systems- Scooter                           '
                                                                                                                                                DM.77
                          2,2,14.18,1 PrlorAuthorlzation,,              ",'.'
                           2.2,14.1   8,2 Documentatlon Requiremenîs                                                                            DM-78
                      2.2J4.19 Cllent Lift                                                                                                DM-78
                           2.2.14,19.1 Prlor Authorization ,,., ' '                                                                       DM.78
                      2,2,14,20 Electrlc Lift, . .                                                                                        DM-78
                      2.2,1 4,21 Hydraulic Lift.                                                                                      ... DM-78
                           2,2.14,21.l Documentatlon Requlrements' . ' , ' ' ' , ' . , .                                                        DM-78
                      2.2.14.22 Standers                                                                                                     DM-78
                            2.2.14.22.1 Prlor Authorlzatlon , . ",                                                                           DM-79
                           2,2.14,22,2 Documenìatlon Requlrements
                      2.2,1 4,23 Ga it Tra iners
                            2.2,1 4,23,1 Prior Authorlzation .
                      2.2,l4.24Accessorles,Modificatlons,AdJustmentsandRepalrs                                                    .,,.,,DM-79
                           2,2,1   4,24.1Authorlzotlon
                                            Prlor                                                                                     ,,, DM-80
                      2,2,14,25 Replacement.,, ..
                       2.2.14,26 Procedure Codes and Limitations for Moblllty Alds ..                    ,
                                                                                                      ,, . , ' DM-81
                  2,2.15 Nutrltlonal (Enteral) Products, Supplles, and Equlpment., . ',,                     ,
                                                                                                          ' '. DM-89
                       2,2.15,1 Enteral Nutrltlonal Products, Feedlng Pumps, and Feedlng Supplies . ' , , ' '. DM-89
                      2,2,15,2 PrlorAuthorlzationRequlrements                          .,,                                         ', '.,DM-90
                           2.2.15,2.1 EnterqlFormulas                                                                                  ,,DM-91
                           2,2,1   5.2,2    Nasogastric, Gastrostomy, or Jeiunostomy Feeding Tubes,                      ',   ...,.¡.,...       DM-91
                           2.2,15,2,3 Enteral Feedlng PumPs
                           2,2,15,2,4 EnteralSupplles.,,,..",.,,.,
                      2,2J5.3 Documentation            Requlrements. ' .. ' '                                                      ..,,. DM-92
                  2.2,16 Osteogenic Stlmulation,.,,.                                                                               .... . DM-92
                       2,2,16.1 Ultrasound Osteogenlc Stlmulator, '                                                                ..,,. DM-93
                       2,2,16.2 Professlonal Servlces                                                                                           DM-93
                       2.2.16,3 Prlor Authorizatlon. ,                                                                                          DM-93
                           2.2,16.3,1 Noninvasive ElectrlcalOsteogenlc Stlmulator                     ,,.   ,,                                  DM-93
                           2,2,1   6.i.2    lnvaslve Electrlcal Osteogenic st¡mulotor                                                           DM-94
                           2.2,16.3,3 Ultrasound             Osteogen¡c ít¡mulator           ,.   ,                               ,,,,.,,DM-94
                      2,2.16,4 Documentation Requlrements.                       ',   ,..                                         ,,,,..DM-94
                  2.2) 7 Phololhera PY Devf ces,                                                                                   .,....       DM-9s
                  2.2.1 8 Prothrombln Tlme/lnternational Normallzed Ratio (PTllNR) Home
                        Testing Monitor.                                                                                           ... ., , DM-95
                      2,2.18.1 PrlorAuthorizatlon                                                                                          DM-95
                                                                                                                                            ,

                  2.2.19 Resplratory Equipment and Supplles                            ..                                                  DM-96
                                                                             ,   '..
                      2,2J9,"1 PrlorAuthorlzatlon                                                                                       ,. DM-gó
                      2.2,19.2 Nebullzers                                                                                               ,. DM-96
                           2.2,19.2,1       Prior Authorlzotion ',      '.                                                             .,. DM-97
                      2,2,19.3 Vaporlzers                                                                                               ,. DM-97
                           2,2.19,3.1 PriorAuthorlzation,",,,',,                                                                          ,DM-97
                      2.2,19.4 Humidlflcatlon Unlts                                                                                     ,. DM-97
                      2.2,19,5 Secretion Clearance Devices..,, ' '                                                                         DM-98
                          2.2.19.5.1 lncentlveSpirometer.'.',,,'                                                                          .DM-98
                           2.2,19,5.2 lntermlttent Posltlve-Pressure Breothlng (IPPB) Devices, ' ' '                                      ,DM.98
                           2,2,19.5.3 Mucous ClearanceVolve',,.,                                                                ,,',,,''.DM-98
                           2.2.19.5,4       Prlor Authorlzation..'...,.,,                                                                    ,DM-98
                       2.2,19.6     Electrlcal Percussor                                                                               ...    DM-99
                           2,2,19.6.1       Prior Authorlzotion       ,,,, ', ',,,      '
                                                                                                                                       ... DM-99



                                                                            DM.6
                                      CPT ONLY . COPYRICHT   20II AMúRICAN MIDICAL ASSOCfAI'ION' ALL IìIGHTS RESBRVED.
                        DURABLE ME,DICAL EQUIPMENT, MEDICAL SUPPLIES, AND NUTRITIONAI, PRODUCTS }IANDBOOK




   2.2,19.7 Chest Physlotherapy Devlces                                                                              ,,,,      DM-99
        2.2.t9.7.1        HFCWCS.                                                                                    .,,.,DM-99
        2,2,1   9.7.2     Cough-Stlmuloting Device (Cofflotor),                                                      .,,,,DM-99
        2.2.19.7.3 PrlorAuthorlzotlon',,,                                                                            ...,DM-|00
        2,2,19,7,4 Documentatlon Requlrements                                                                                  DM-100
   2.2.19.8 Posltlve Alrway Pressure System Devlces, ..
        2,2,19,8,1 PrìorAuthorizatlon                                                                                     ,DM-t01
   2,2,19,9 Contlnuous            Posltlve Airway Pressure (CPAP) System
        2.2.19.9.1 Adult CPAP (19 years of age and                         older)    .

        2.2.19,9,2 PedìotrlcGPAPCrlterla
        2.2.19,9.3 PrlorAuthorlzatlon,,,                                                                                  .,DM-102
   2,2,19,10 Bl-level Posltlve Alrway Pressure System (BiPAP S) Without Backup . , , , . , , DM-1 02
        2,2,19.10.1       PriorAuthorlzqtlon,,,                                                                    ,",,,DM-103
   2.2.19,11 Bi-level Posltlve Alrway Pressure System With Backup (BIPAP                                   5T),           ,DM-103
        2.2,1 9.1   Ll    Prlor Authorlzation                                                                             .DM-103
    2,2.19,12 Home Mechanlcal Ventllatlon Equlpment,                                ,,.                                  ,.,DM-103
        2.2.19.1    2,1   Prlor   Authorlzatlon,,',.                                                                       ,DM-104
    2,2]9,13 Volume Ventilators, ' ,                                                                             ........DM-l04
        2.2.1   9,r3,1    Ventilatìon Modes,'...,                                                                          ,DM-104
        2.2,1 9.1 3.2     Breath Types                                                                                     ,DM-104
        2,2.19.1    i,3   Prior   Authorizatlon',,.,                                                                       .DM-t04
    2,2,19,14 Negatlve Pressure Ventllators' .                                                                   .,,..,,.DM-'t04
         2,2.19,1 4,1 Prlor Authorlzatlon , , ' , ,                                                                       ..DM-|05
    2.2.19,15 Ventilator Servlce Agreement                 ,
                                                                                                                               DM-10s
         2.2.19.1 5.1 Prior Authorlzatlon . ' , '                                                                              DM-105
         2.2,19,1 5.2 Documentatlon Requlrements.',.,
    2,2.19 Jl6 Oxygen Therapy                                                                                              ,   DM-l0s
    2,2,19,17 Oxygen Therapy Home Delivery System ' ' ' ' '                                                               .DM-106
    2.2,19.18 Prlor Authorization. , ' ,                                                                                  ,DM-106
    2.2.1 9.19 Documentatlon Requlrements,
          2,2,19,19,1 OxygenTherapy Recertlflcatlon., ¡ "'.,,.¡.. ¡ ¡.
    2,2,'l 9,20 TracheostomY Tu bes,
         2,2,19,20,1 Prior Authorizotlon . , , ' ,                                                                       ,,.DM-108
    2,2,19,21 Pulse Oximetry                                                                                              ,.DM-l08
         2.2.19,21.1 Prlor Authorlzatlon . '. '                                                                            .,DM-!08
    2.2J9,22 Procedure Codes and Llmltations for Resplratory EqulPment
               and Supplles                                                                                                    DM-108
2.2,20 Special Needs Car Seats and Travel Restralnts                                                                           DM-1',t1

2.2.21 Subcutaneous lnjection Ports                                                                                            DM-111
     2.2.21 ,1 Prior Authorlzatlon ' , ,
    2,2,21,2 Documentatlon Requlrements'..,. ' ' '., ' '                                                             ..,,DM-il2
2.2.22 Total Parenteral Nutrltion FPN) Solutions,, , '                      '.. '                                    . ..,DM-t 13
     2,2,22j Prior Authorlzatlon. ,                                                                                  ..  ,.DM-l14
    2,2.22,2 Documentation Requirements'. '.                       ,   ,                                             ....DM-114
2,2.23 Wound Care Supplies or Systems
     2,2,23J Wound Care SuPPlles '., ,                                                                                         DM-l16
    2,2,23,2 Wound Care SYstem.                                                                                                DM-116
         2.2.23.2.1 NPW| System                                                                                                DM-!16
         2,2,23.2,2 Pulsottle Jet lrrlgatlon             Wound Care System '                                                   DM-ll7
    2.2.23,3 Noncoveled Services.,..
    2,2.23.4 Prior Authorization....,'


                                                            DM-7
                    CPT ONLY . COPYRICH'I'20I   I AMÊRICAN MSDICAL ASSOCIATION' AI,L      RICI I'IS RESIIRV¡D'
TEXAS MEDICÁID PROVIDER PROCEDURES MANU,{L: VOL.2




                         2.2,23,4,1      Wound Care SuPPlies ' ' ' '                                             "DM-tt7
                         2.2,23,4,2      Wound Core SYstem ,, ,, '
                     2.2.23.5 Documentatlon Requilements'
                          2,2,23.5.1     Wound Care SuPPlles.,.     ,


                          2,2,23,5,2     Wound Care SYstems . ' '   ,


                   2,2,23,6 Wound Care Procedures and Limltatlons
               2.2.24 Llmliallons, Excluslons ,,
               2.2.25 Procedure Godes That Do Not Requlre Prior Authorlzatlon,,                  .,,'' "
            2.3 Other/Speclal Provl¡|ons...'.                                                                    , DM-l24
               2,3,1    Medlcaid Relatlonshlp to Medlcare '        ,.                                            ,.DM-l24
                   2.3,1.1 Possible Medicare Clients'.. , ' , .                                                  .,   DM-124
                   2.3.1,2 BenefìtsforMedicare/Medlcald Cllents                                                  ,.DM-l25
                   2,3.1.3 Medicareand Medlcald PrlorAuthorlzat¡on.,.,.'.,.                                      .,DM-l25

            2.4 Cla¡ms Flllng and Relmbur¡ement ..
               2.4.1 Clalms lnformation.
                   2,4.1,1 Beneflt Code
               2.4.2 Relmbursement.,,,
               2,4,3 Prohibltlon of Medicald Payment to Home Health Agencies Based
                        on OwnershiP,     ,   ,




      3. Clalms Re¡ources                                                                                        '    DM'128

      4. GontactTMHP.                                                                                           "DM-129
                                                                                                                      DM-129
      5. Forms .
                                                                                                                      DM-130
            DM.l   DME Certiflcatlon and Receipt Form (4 pages)
            DM,2 External lnsulin PumP
            DM.3 Home Health Services (Title XIX) DME/Medical Supplles Physlclan order
                Form lnstructlons (2      pages).                                                                ' 'DM-135
                                                                            (DME)/Medical
            DM.4 Home Health Servlces (Tltle XIX) Durable Medical Equipment
                   SuppllesPhyslcianOrderForm                                                                 """'DM-137
            DM.5 Addendum to Home Health Servlces (Tltle XIX) DME/Medlcal Supplles Physlclan
                Order    Form                                                                                        ' 'DM-138
            DM.ó Home Health Services Plan of Care (POC) lnstructions
                                                                                                                      DM-l39
                                                                                                                      DM-l40
            DM.7 Home Health Services Plan of Care (POc)
            DM.8 Home Health 5ervlces Prlor Authorlzatlon Checkllst
                                                                                                                ..,,DM-l41
            DM.9 Medicald certlficate of Medlcal Necesslty for chest Physiotherapy Devlce
                   Form-lnitlal Request.                                                                        ,.,,DM-142
            DM.l O Medicaid ceftificate of Medlcal Necesslty for chest Physlotherapy Devlce
                   Form-Extended Request',         .'                                                          ...,,DM-143
            DM.1 1 Medlcald Certificate of Medlcal Necesslty for CPAP/BiPAP or Oxygen Therapy
                                                                                              ,..,,DM-l44
                                    Form,,,,'.                                                .,,,.DM-145
            DM.f 2 Pulse Oxlmeter
            DM.l3  Statement for  lnltlal Wound Therapy System   ln-Home Use (2 pages)        ,,,,.DM-l46
                                                                                       (2
            DM.l4 Statement for Recertlflcation of Wound Therapy System ln-Home Use Pages) , ' . , , DM-148
            DM.l 5 Ventilator Servlce Agreement                                                                       .DM-l50
            DM.16 wheelchair/scooter/Stroller Seatlng Assessment Form (CCPlHome Health
                                                                                                                       DM   151
                   Servlces) (7 pages)
       ó.   Clalm Form ExamPles
                                                                                                                    DM-l58
            DM.t 7 Home Health Setvlces DME/Medlcal 5upplies                                                     ,.,DM-l59
       lndex..                                                                                                    ' DM-lóo




                                                                        DM.8
                                  cPToNLY.coPYRlcH.t20llAMERlc^NMEDlcALAssocl^TloN.ÀLLßlcH,I'sfl'fisEIVIJD.
                                  DURÂBLE MEDICAL EQUIPMENT, MEDICAL STJPPTIES, AND NUTRITIONAL PRODUCTS HANDBOOK




DURABLE MEDICAL EQUIPMENT, MEDICAL
SUPPLIES, AND NUTRITIONAL PRODUCTS
             HANDBOOK
1. GENERAL INFORMATION
The lnformation in this handbook is intended for Texae Medicaid home health durable medical
eguipment (DME), DME medical suppller, and medical supply company providers. This handbook
pio*'la.r iniormation about the Texai Medicaid benefìts, policies, and procedures that are appllcable to
these providers,

This handbook contains information about Texas Medicaid fee-for-service benefits. For information
about managed care benetts, refer to the Texas Medicaid ManagedCare Handbook.
Managecl care carve-out services are administered as fee-for-sen¡lce benefits, A list of all carve-out
                                                                                                     (Vol'
servicãs ß available ín Section 8, "Carye-Out Servlces" lnthe Medícsíd Managed Cøre Handbook
2, Provider Handbooks),

All providers   are required to report suspected chlld abuse               or neglect as outlined in subsection L,5'l'2'
"Reporting Child Abuse or Neglect" in            Section 1,        "Provider Enrollment and Responsibllitles" (Vol J,
GenerøI   Information).

lmportønt All províders        øre requíred to read ønd comply Jvith Sectton Províder Bnrollment and
  '                                                                          -1:
                neíponslbiltttes. tn àddttlon to requìred complìance with all req-uirements speciJic to Texøs
               ¡øidicøld, it ís a vlolation of Texas Medtcøid rules when a proúder fails to prortlde healthcøte
                servìces or ìtems to Medicald clients in accordønce with accepted medìcøI communlty
               standørds ønd standqrds that govern occuPotìons, qs elcplairred in 1 Texas Admìnistrøtíve
               Code (TAC) 5371,1617(a)(6)(A). Accordingly, in addítíon to being subiect to sønctionsfor
              føilure   to comply with the requirements that are specífc to Texas Medicøìd, prot)ders can
              'alsobe
                     subiectto                                                                   health-care
                       seryice
                items ønd                                                                                          censure and
                certifcatlonrequ                                                                                   mentatìon and
                recotd møintenance,

  Reþr to;      Section l: Provider Bnrollment and Responsibllities (VoL I, Generallnformøtlon) for more
                information about enrollment procedr res.


2. TEXAS MEDICAID (TITLE XIX) HOME HEALTH                                                     SERVICES

2.1 Enrollment
Enrolled providers of D                                                                                                          )
provlder identiffer that
DME/MedicaI SuPPlier
All DME providers must be Medicare-certifìed be
providers that render custom DME wheeled mobtlity systems to Texas Medicaid clients must enroll in
                                                                                     at least one
Texas Medicaid as a specialÍzed/custom wheeled mobilify grouP provider and must have
qualifìed rehabilitation professlonal (QRP) Performing provlder'
Certiûed eRp provlders must enroll in Texas Medicaid as performing providers under DME provider
grouPs,




                                                                        DM.9
                            CPT   ONLY. COPYIUCIfT 20I   J   AMIiRICAN MED¡CALÂSSOCIATION. AÙL RICHTS RIISßRVED.
TEXAS MEDICAID PROVIDBR PROCEDURBS MANUAL: VOL.2




     To enroll in Texas Medicaid as a QRP performing provider, indlvÍdual professionals must be certífìed
     by the National Registryof Rehabilitation TechnologySuppliers (NRRTS) or Rehabilitation Bngineerlng
     aåd Assistlve Tech-nology Socieby of North America (RESNA) and must enroll as a performing provider
     under a Specialized /Custom Wheeled Mobility group.
      proyiders may download the Texas MedÌcaíd Provider Bnrollment Application at www.tmhp,com or
      request a paper application form by contactlng TMHP directly at 1-800-925-9f26.
      providers may also obtain the paper enrollment application by writing to the following address:

                                    Texas Medlcaid & Healthcare Partnership
                                                   Provider Enrollment
                                                          PO Box 200795
                                                 Austin, TX78720-0795
                                                          I   -800-925-9 126
                                                    Fax; (512) 514-4214

      Providers may request prior authorÍzation for home health services by contacting:
                                    Texas Medicaid & Healthcare Partnership
                                                  Home Health Services
                                                          PO Box 202977
                                                  Austin, TX78720-2977
                                                          I   -800-925-8957
                                                    Fàx: (512) 514-4209

      2.1,1 Change of Address orTelephone Number
      A current physical and mailing address and telephone number must be on fìle for the agency or comPany
      to receive-Remlttance & Status (R&S) reports, reimbursement checks, Medicaid provider procedures
      manuals, the Tøxøs Medlcaid Bulletîn (bimonthly update to the Texøs Medìcøld Provlder Procedures
      Manuql),and all other TMHP correspondence, Promptly send all address and telephone numb-er
      .hong", io TMHP províder Enrollment at the address listed above under subsection 2.1, "Enrollment"
      in this handbook.

      2.1,2 Pendlng Agency Certificatlon
      DMEH suppliers that submlt claims before the enrollme¡rt Process is complete or wlthout prior autho-
      rizatlon for services Íssued by the TMHP Home Health Servlces Prior Authorization Department will
      not be reimbursed, The eftþctive date of enrollment ls the date on which all Medicaid provider
      enrollment forms have been received and approved by TMHP'
      Upon the receipt of notice of Medlcaid enrollment, the supplter must contact the TMHP Home Health
      Se'rvices prior Ãuthorization Department before rendering to a Medicaid client services
                                                                                              that require a
      prior authorization number. Priòr authorization cannot be issued before MedicaÍd enrollment has been
      completed, Regular prlor authorization procedures are followed at that time.
      providers must not submit home health services claims for payment until they have received their
      Medicaid certifìcation and a prior authorization number has been assigned.
         Referto: Subsection2,l.l,"ClinicalLaboratoryImProvementAfnendments(CLIA)"inthe
                    Radlolog and Lab oratory       servlces Handb ook         (vol, 2, Proyider Høndb          ooks),



      2.2 Services, Benefits, Llmitations and Prlor Authorizatlon
      Home health services include         ursing (SN), home health aide (HHA), physical
      therapy (pT), and   occupatlon       esi DME; and expendable medical supplies that are
      proviãed to eligible Medicaid       of resldence'

            Notet   T4Steps-eltgtble clients who qualify for medìcølly necessary seru-ices beyond the limits of this
                    Home-Heallh Services benefit møy rcceiye those services through CCP.


                                                                     DM-IO
                               CFT ONLY - COPYRICHT 20I   I AMBRICAN MEDICAL ASSOCIATÍON' ALL   RICHTS RËSERVED'
                                   DURABLE MEDICÁL EQUIPMENT, MED]CAL SUPPLIES, AND NUTRITIONÄL PRODUCTS HANDBOOK




  Referto: Subsection 5,l,l, "Overyiew" in the Children's ServicesHandbook(Vol,2,Prottlder
   '             Handbooks) for more information on clients birth through 20 years of age,
                            ,,Home
                 section 3,        Health Nursing aad Therapy seryices" in the Nursíng and Therøpy
                  Services Handbook (Vol, 2, Provider Handbooks) for more information on nursing and
                 theraPy services'

2.2.1 Home Health Servlces
The benefìt period for home health professional services is up to 60 days with a current plan of
                                                                                                 care
(pOC). for å[ pU¡    and medical supplies with or without  prior authorizatlon requirements,  providers
must complete a Horne Health Services (T
Supptl.r P'hysician Order Form except âs o                                                                                     d
stable situations, the Home Health Service
Supplies Physician Order
phyii.i.n', sìgnature on     t                                                                                            nd
supplies that are ordered
(Ptø¡)/tvte¿ical      Supplies                                                                                            h
medical necessity determlnation' Because Medicat




Services  Prior Authorizalion Department, Provide
                                                                                                      HHSC
forms, delivery slips, and invoicãs for all supplíes provided to a client and must disclose them to
                                   records  and  claims must be retained  for a minimum   of fìve years from
or its designee oniequest. These
the date oiservice  (DOS)   or until audit questions, appeals, hearings, investlgations, or court  cases are

resolved, Use of these services ts subject to retrospective review'

2,2,1,1 Client EllglbllìtY
Home health clients do not have to be homebound to qualify for services.
                                                                                         must:
To quallff for home health services, the Medicaid client must be eligible on the DOS and
 . Have a medical need for home health professional services, DME, or supplies that is documented in
    the client's POC and considered a benefìt under home health services,

 .    Receive services that meet the cllent's existing medical needs and can be safely
                                                                                       provided in the
       client's home.
  .    Receive   prior authorization from TMHP for most home health professlonal services, DME, and
       supplies,

Unless otherwise noted in this handbook, certain DME/supplies may be obtained
                                                                              without prior autho-
ttr.tion although providers must retain a Home Health                         Services   (Title XIX) Durable Medical
¡qr-ip..rt (Oifnj¡Ueaical            Supplies Physician Order Form that has been reviewed, signed, and dated
by the treating physician for these clients'

      Refer   to: "Automated Inquiry       system (AIS)" in "Preliminary Information" (vol, 1, Generøl
                   Informøtion).
                   Section 6: Claims Filing in Children's Services Handbook (Vol, 2, Provider HøndbookÐ
                                                                                                        for
                   more information on    clients who are 20 years of age and younger'

2,2,1,2 Prtor Authorlzatlon Requests fot cllents wlth Retroactlve Ellglbtltty
                                                                                          is before the date on
Retroactive eligibility occurs when the effective date of a client's Medicaid coverage
                                                    TMHP's     eligtbilty fìle, which is called the "add date."
which the clieit's Medicaid eligibilty is added  to




                                                                      DM-¡I
                              CPT ONLY - COPYRICHT 20l I              MúDlC/rL ASSOCI^l toN'         RICI]TS RESERVI'D'
                                                           ^MERIC^N                            ^LL
TEXAS M!,DICÀID PROVIDER PROCEDURES M,¿\NUAL: VOL' 2




      For clients with retroactive eligibility, prior authorization requests must be submltted after the client's
      add date and before a claim is submitted to TMHP'

      Ior   service sprovided to fee-for-service Medicaìd clients during the client's retroactive eligibility period
      (i.e,, the peritd from the effective date to the add date), prior authorlzation must be obtained within 95
      days of the client's add date and before a claim for those sewices is submitted to TMHP' For services
      präuid.d on or after the client's add date, the provider must obtain prior authorization within 3 buslness
      days of the date of service.

      The provider is responsible for veriffìng eligibitity, The provider is strongly encouraged to access the
      Autómated Inquiry System (AIS) or TexMedConnect to verify eligibility frequentlywhile providing
      services to the client. if serviceo are discontinued before the client's add date, the provlder must still
      obtain prior authorization within 95 days of the add date to be able to submlt claims.
         Refer   to:    Section 4: Client Eligibility (Vol. 1, General Informatìon).

      2.2.1,3 Prlor Authorlzatlon
      prior authorization must be obtaÍned for some supplies and most DME from TMHP wlthin three
      business days of the DOS, Although providers may supply some DME and_medical supplies to a client
      without priår authorization, they muìt still retain a copy.of the Home Health Services (Title XIX)
      Durable-Medical Equipment (DME)/Medical Supplies Physician Order Form that has Section B
      completed, signed, ãnà dated by the cllent's attending physician' unless otherwise noted in this
      handbook.
      The following prior authorization requests can be submitted on the TMHP website at www,tmhp,com:
        .    External Insulin PumP
        .    Home Health Services (Title XIX) Durable Medical Equipment (DME)/Medical Supplies Physician
             Order Form
        o    Home Health Services POC
        .    Medicaid certilìcate of Medical Necessity for CPAP/BiPAP or Oxygen Therapy
        .    Medicaid Certifìcate of Necessity for Chest Phystotherapy Device Form-Initial Request
        .    Medicaid Certificate of Necessity for Chest Physiotherapy Device Form-Extended Request
        .    Statement for Initial Wound Therapy System In-Home Use

        .    Statement for Recertifìcation of Wound Therapy System In-Home Use
        .    Wheelchair/Scooter/Stroller Seating Assessment Forrn (CCP/Home Health Services)
                                                                                             (Attachments
             will be sent separately due to size and detailed information)

            Referto: Subsectiou5.5.l,"PriorAuthorizationRequestsThroughtheTMHPWebsite"ínSection5,
             '          "prlo.Authorizatlon" (Vol, 1,GeneralInformation) formoreinformation,including
                        mandatory documentation requirements.

       If a client's primary coverage ls private insurance and Medicaid is secondary, prior authorization is
       required foi tvte¿lcaid reim-'bursãment. If the primary coverage is Medìcare, Medicare approves the
       ,.r.u1.., and Medicaid Ís secondary, prior authorization is not required. TMHP will pay only the
                                                                                                             required.
       coinsurance or deductible. IfMedicare denied the service, then Medicaidprior authorization is
       TMHp must receive        a prior authorization request within 30 days of the date  of Medlcare's  fìnal dispo-
               The   Medicare   Remittance   Advice  Notice (MRAN)   containing   Medicareb   final disposition  must
       sition.
       accompany the prior authorizatlon request, If the se rvice is a Medlcald-only     service, prior authorization
       ir r.quìrri rrithìn three business days of the DOS. The provider is responsÌble for determiningwhether
       eligiúillty is effective by uslng AIS, iexMedConnect, or an electronlc eligibility inquiry through the
       TMHP EDI gateway,



                                                                                 DM.I2
                                    cpr oNLY . coPYßlcHT   201   I               MsDlC^L AliSOClA',rlON, ALL RICHT   S   ltttslÌllvtlD.
                                                                     ^MEßlC,\N
                               DURABLB MEDICAL IIQUIPMENT, MBDICAL SIIPPLIES, AND NUTRITIONÁL PRODUCTS Hr{NDBooK




The provider must contact the TMHP Home Health Services Prior Authorization DePartment within
threé business days of the DOS to obtain prior authorization for DME and medical supplíes.

If inadequate or incomplete information is provided or medical necessity is lacking, Úre provider wlll be
asked to'furnish any required or additional documentation so that a decision about the request
                                                                                                     can be
made. Because the åocumentation must often be obtained from the client's physician, providers have
two weeks to submit the requested documentation. If the addttional documentation is received within
the two-week period, prior ãuthorization can be considered for the original date of contact, If
                                                                                                   the
additional documentaìion     is received more than two weeks after the request  for the documentation,
prior autJrorization is not considered before the d                        nal documentation is received.
it i, th. DME supplier's responsibillty to contact                         the requested addltional
documentation, tï. physi.ìan must maintain docu                            necessity In the cllent's record.

TMHP Home Health Services toll-free number is l-800-925-8957,
  Reþr to: Subsection 2,2,2.2,"Prior Authorization" in this handbook for DME prior authorization
              informatton,
               subsection 2,3,1, "Medicaid Relationship to Medicare" in this handbook.

Client eligibility for Medicaid is for one month at a time, Providers should verifr their client's
                                                                                                   ellgibility
every month. Prlor authorization does not guarantee      payment'

2.2.2 Du¡able Medical Equipment (DME) and Supplies
Texas Medicaid defìnes     DME     asl
                                                                                                 a physician
Medicøl equipment or appliances that are manufactured to withstandrepeated use, orderedby
                                                         a          dßabìIity, condition, or íllness'
¡oiitt ¡rihi ho*r, anà'required to coffeÇt or ømeliorqte   clìent's

Since there ls no single   authorify, such                    that confers the offlcial status of "DME" on
                                               as a federal agency'
anyd.vi.. o, produc-t, HHSC reiains the right to  make  such  determinations with regard toDME benefits
of îexas Medìcaid. DME benefìts of     Texas tøedicaid must   have  either a well-establlshed history of
,fiìru.yor, in the case of novel or unlque equipment,  valid,  peer-reviewed   evidence that the equipment
.o.r..i,   or ameliorates a covered medical condition or functional disabtlity,
                                                                             defìnition of DME, The majority of DME
                                                                             a service cannot be provÌded for a client
                                                                             es, these services may be covered through



To be reimbursed as a home health benefit:
  .   The client must be eligible for home health benefits'
  .   The criteria listed for the requested equipment or supply must be met.

  .                                                                                       Partici-
      The requested equipment or supply must be medically necessary and Federal Financial
      pation (IFP) must be available,
  .   The client's health status would be compromised without the requested equipment
                                                                                      or supply'

  .   The requested equipment or supplies must be safe for use in the home,
  .   The client must be seen by a physician wíthin one year of the DOS'

The pro
pages)"
 Paymen
 include
 of the provider and the client or primary caregiver.
 in the client's record.



                                                                 DM.I3
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      The sígned and dated DME Certifìcation and Receipt Forrn rnust be submitted to TMHP for claims and
      appeals for DME that meet or exceed a billed amount of $2,500,00. The form must also be submitted
      when multÍple items that meet or exceed a total billed amount of $2,500,00 are billed for the same DoS'
      The form is required in addition to obtaínfng prior authorization, when applicable,
      If the DME Cefification and Receipt Form is not submitted to TMHP, the claim payment or appeal will
      be reviewed and will be eligible for recoupment, Incomplete forms will be returned to the provider for
      correction and resubmission.
      TMHP will contact clients that received DME that meets or exceeds a billed amount of $2,500,00 to
      verifr that services were rendered. If the delivery of the equipment cannot be verifìed by the client, the
      claim payment will be eligible for recoupment,
      The provider must keep all Home Health Services (Title XIX) Durable Medical Equipment
      (DME)/Medical Supplies PhysÍcian Order Forms and Addendum to Home Health Services (Title XIX)
      DME/Medical Supplies Physician Order Forms on file, Provlders must retaln delivery slips or l¡voices
      and the signed and dated DME Certiflcation and Receipt Form documenting the item and date of
      delivery for all DME provided to a client and must disclose them to HHSC or its designee on request,
       .   The DME must be used for medical or therapeutic purposes, and supplied through an enrolled
           DMEH provider in compliance with the client's POC.
       .   These records and claims must be retained for a minimum of fìve years from the DOS or until audit
           questions, appeals, hearings, investigations, or court cases are resolved. Use ofthese services is
           subject to retrosPective review,

            Note:   AII purchased equipment must be new upon delìvery to clíent, Used equipment may be
                    utilizedJor lease, but when purchesed, mustbe replaced with new equipment.
      HHSC/TMHP reserves the right to request the Home Health Services (T'itle XIX) Durable Medical
      Equipment (DME)/Medical Supplies Physician Order Form or Addendum to Home Health Services
      (Title XIX) DME/Medical Supplies Physician Order Form at any time.

      DME must meet the following requirements to qualify for reimbursement under Home Health Services;
       .   The client received the equipmeut as prescribed by the physician,

       .   The equlpment has been properly fitted to the client or meets the client's needs.
       .   The client, the parent or guardian of the client, or the primary caregiver of the client, has received
           training and instruction regarding the equipment's proper use and maintenance,
      DMEmust:
       .                                       or injury or to improve the functioning of a body part, as
           Be medically necessary due to lllness
           documenteà by the physician in the client's POC or the Home Health Services (Title XIX) Durable
           Medical Equipment (DME)/Medical Supplies Physician Order Form.
       .   Be prior authorized by the TMHP Home Health Servlces Prior Authorization Department for rental
           or purchase of most equipment, Some equipment does not require prior authorization, Príor autho'
           rizãtion for equipment rental can be issued for up to six months based on diagnosis and medical
           necessity, Ifan eitension is needed, requests can be made up to 60 days before the start ofthe new
           prior authorization period with a new Home Health Services (Title XIX) Durable Medical
           Equipment (DME)/Medical Supplies Physlcian Order Form.
       .   Meet the cltent's existing medlcal and treatment needs,
       .   Be considered safe   for use in the home,




                                                                         DM-I4
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                                  DUR.?ôTBLE        MEDICAL EQUIPMENT, MEDICAL                  SI,JPPLIES,      AND NUTRITIONAL PRODUCTS }IANDBOOK



 .     Be provided through an enrolled                DMEH Provider or suPPlier.
           Notet TilSteps-eligibte clients who quøIifufor medically necessary services beyond thelimits of thìs
                  home heølth beneft will receive those services through CCP,

DME that has been delivered to the client's home and then found to be inappropriate for the client's
condition will not be eligible for an upgrade wtthin the ftrst six months followlng purchase unless there
has been a signifìcant change in the client's condition, as documented bythe physician familiar with the
client. All adjustments and modiflcations within the fìrst six months after delivery are considered part
of the purchase price,

^AllDME purchased for a client becomes the Medicaid client's property uPon receipt of the ltem. This
properly includes equipment delivered whlch witl not be prior authorized or reimbursed in the
following instances:
 o     Equipment delivered to the client before the physician signature date on the Home Health ServÍces
       (fitle XIX) Durable Medical Equipment (DME)/Medical Supplies Physlcian Order Form or
       Addendum to Home Health Services (Tide XIX) DME/Medical Supplies Physician Order Form'
  .    Equipment delivered more than three business days before obtaining prior authorization from the
       ffr¿flp Home Health Services Prior Authorization Department and meets the criteria for purchase,
Additional criteria;
  .    A determination as to whether the equipment will be rented, purchased, replaced, repaired, or
       modifìed wilt be made by HHSC or its designee based on the client's needs, duration of use, and age
       of the equipment.
  .    periodic rental payments are made only for the lesser of either the period of time the equipment is
       medically necesiary, or when the total montily rental payments equal the reasonable purchase cost
       for the equipment,
  .    purchase is justifìed when the estimated duration of need multiplied by the rental payments would
       exceed the ieasonable purchase cost of the equipment or it is otherwise more practical to purchase
       the equipment.
  .    If a DME/medical supply provider is unable to deliver a prior authorized piece of equipment or
       supply, the provider shoulã a[ow the clientthe option of obtaining the equiPment or supPlies from
       another provider,
Items or services are reimbursed at the lesser of;

       The provider's billed charges

       The published fee determined by HHSC

       Manual pricing as determined by HHSC based on one of the following:
       .     The manufacturer's suggestcd retail price (MSRP) less l8 percent
       .     The provider's documented lnvoice cost
Ifan item is manually priced, providers must submit documentation of one of the following for consid-
eratlon ofpurchase or rental with the appropriate procedure codes:
  .    The MSRP or average wholesale prÍce (AWP), whichever is applicable
  .    The provider's documented invoice cost

2,2,2,1 Modlflcatlons, Adtustments, and Repøirs
Modificattons are the replacement of components because of changes in the client's condition, not
replacement because the component is no longer functioning as designed, All modiflcations and adjust-
mãnts within the ftrst six months after dellvery are consldered part of the purchase price,



                                                                              DM.I5
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                                                                  ^MtiRICÂN                           ^LL
TEXAS MEDICAID PROVIDER PROCEDURIS MANUALT VOL' 2




      Modifìcations to custom equlpment may be prlor authorized should a change occur in the client's needs,
      capabiJities, or physical and mental status which cannot be anticipated.

      Documentation must include the following:
       .   A,ll projected changes   in the client's mobllity needs
       .   The date of purchase, and serial number of the current equipment
       .   The cost of purchasing new equiPment versus modifying the current equipment
      All modifications within the first six months after delivery             are considered part of the purchase price'

                                                                                                                       er deliverywill
                                                                                                                       considered part
                                                                                                                       uthorized as


      Repairs to client-owned eguipment maybe prior authorlzed as needed wlth documentatlon of medical
      neiessity. Technician fees arJ considered part      of                     equire the replacement
      of components that are no longer functional,        Pro                    taining documentation
      in the client's medical record.specifying the      repairs                 essity'

      A DME repair will be considered based on the age of the item and cost to repair it.
                                                        nt or medical information from the attending
                                                                   or eguipment continues to serve a specifìc medlcal
                                                                   evendor or DME provider of the repairs, Rental
                                                                   edical equipment for the period of tlme it will take
                                                                   ipment,

      Repairs will not be prior authorized in situations where the equþment has been abused or neglected by
      thá client, client's fãmily, or caregiver. Routine maintenance of rental equipment is the provider's
      responsibility, For clients requirtñg wheelchair repairs onl¡ the date last seen by physician does not need
      to be fìlled in on the Home Health Services (Title XIX) Durable Medical Equipment
                                                                                               (DME)/Medical
      Supplies Physician Order Form,

      2.2.2,1,1 Accessories
      Equipment accessories including, but not llmited to, pressure suPPort cushions, may be prior authorized
      with documentation of medical necessity,
      2,2,2,2 Prlor Authorlzatlon
      prior authorizatlon is required for most DME and supplles provided through Home Health                                Services'
      These services include aciessories, modifìcations, adjustments, and repairs for the equipment,
      providers must submit a completed Home Health Services (Title XIX) Durable Medical Eguipment
      (DME)/Medical Supplies Physictan Order Form to the TMHP Home Health Servlces Prior Authori-
      zation Department,
      Unless otherwise noted in this handbook, a completed Home Health Services
                                                                                      (Title XIX) Durable
      Medical                                               an Order Form     prescribíng   the DME or supplies
      must be                                               esentative  of the DME/Medical      Supply provider
      familiar                                          orization for  all DME   equipment     and supplies' All




      Form must lnclude the procedure codes and nume




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                             DURABLE MBDICAL EQUIPMENT, MEDICÀL SUPPLIÉ,S, AND NUTRITION.AL PRODUCTS H^NDBOOK




The completed, signed, and dated form
physician in the client's medical record.
Medical Equipment (DME)/Medical Su
must be maintained by the prescribing physician,
To complete the prior authorization process by paper, the provider ry9! l* or mail the completed
Home Health Services (Title )CX) Durable Medical Equipment (DME)/Medical Supplies Physícian
Order Form to the Home Health Services Prior Authorization Department and retain a copy of the
signed and dated form in the client's medical record at the provider's place of business.

To complete the prior                                              tcall¡ the provider must submit the prior authori-
zatíon råqulre**tu ttr                                methods and retain a copy of thesigned and dated
Home Health Services                                Equtpment (DME)/Medical Supplies Physician
order Form in the client's medical record at the provider's place of business'
Retrospective review may be performed to ensure that the documentation included
                                                                                     in the client's
medical record supports the medical necessity of the requested seryices.
The date last seen by the physicìan must be within the Past l2 months-unless a physician waiver
                                                                                                     is

oUt.in.¿, The physician's siþarure on the Home lealth Services      (Title XIX) Durable    Medical
Equipment (pivlÉ)lfr¡e¿i.at Supplies Physician Order Form is onlyvalld for 90 days before the
                                                                                                 initiation
ofì.*i.rr, The requestíng   p.ovid.t may be asked  for additional information   to clartfy or complete   the
request.
providers must obtain prior authorization withln three buslness days of provtding the service by calling
TMHp Home Health Segces Prior Authorization Department or faxing the llome Health                                      Servrces
(Tirle xIX) Durable Medical Equipment (DME)/Medical supplies Physician order Form,
                                                                                       requesting prior
To facilitate a determiuation of medical necessity and avold unnecessary denials when
                                                        complete information  supporting  the medical
authorízation, the physician must provide correct and
necessity of the equipment or supplies requested,  including:

 .    Accurate diagnostic information pertaining to the underlying dtagnosisi condition as well
                                                                                                as any

      other medica'Í diagnoses/conditions, to include the client's overall health status.

 .    Diagnosis/condition causing the impairment resulting in a need for the equipment or supplies
      requested,
purchased DME is anticipated to last a minimum of 5 years, unless otherwise noted, and may be
considered for replacemeit when the time has passed or the equipment is no
                                                                               longer functional or
                   ofthe        or fìre report, when appropriate, and the measures to be taken to Prevent
i.p.it"Ufr. A copy       police
reoccurrence must be submitted.
prior authorization for equipment replacement                is constdered        within fìve years of equipment purchase
when one of the following occurs:
  .   There has been a signlficant change in the client's condrtion such that the current
                                                                                          equipment no
      longer meets the client's needs.
                                                                                                    to
  . The equipment is no longer functional and either cannot be repalred or it is not cost-effective
    repair,
                                                                               has occurred, The
Replacement of equipment is also considered when loss or irreparable damage
foliowing must be submitted with the prior authorization request:
  .   A copy of the police or fire report, when appropriate
  .   A statement about the ¡neasures to be taken in order to Prevent reoccurrence




                                                                    DM.T7
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TEXAS MEDICAID PROVIDDR PROCEDURES MANUAL: VOL' 2




      Payment may be prior authoriz€d for repair of  pu                                                     rental equiPment
      1ln'cludfng.ep.irs) is the supplier's   respõnsibility'                                               MHP Home Health
      Services Prior Authorizationbepartmènt is    l-800-9                                                  must include the cost
      estimate, reasons for repairs, age of equipment, and serlal number'

      2.2.3 MedicalSuPPlies
      Medical supplíes are benefìts of the Home Health Servlces Program lf they meet the
                                                                                           following criteria:

       . unless e                                                                                ply provider
                                                                                                 Health
         and a ph
                                                                                                 Order Form
         Services
                                                              g prior authorization for the DME or supplics,
                                                              óriginal, and handwritten. Computerized or
                                                           current signature and date Ís valld for no more
                                                          ior authorization or the initiation of service, The
                                                         rable Medical Equipment (DME)/Medical Supplies
                                                        ure codes and numerical quantities for the services
            requested,
       .                                                                           supplies to the client and
            The provider must contact TMHP within 3 business days of providing the
            obtain prior authorization, if required,
                                                                                              (Title XIX)
       .    The requesting provider and orderlng physician must keep all Home.Health Services
            Durabrå ruediãar Equipment (DME)/rr¡edical           su
                                                                             ;,iåçË:i.,ï'å:ff.'i"ü,t*iï::$ü'"
                                                                                                (Title XIX) Durable
                                                                          d Flome Health Services
                                                                    hyslcian Order Form in their records;
                                                                                      that document the date of
        .   ProvÍders must retain indivídual delivery slips or invoices for each Dos
                                                               must disclose them to ÉIHSC  or its designee upon
            ã.ti*,..y øt all supplies provided to a cliånt ãnd
            ,.qrr..i. Documentation of delivery must include one of the followingr
            .   Delivery slip or invoice signed and dated by client or caregiver'
                                                                                                                      printed from
            .   A dated carrier tracking document with shipping date and dellvery date must
                                                                                                                 be
                                                                                       and delivered. The dated
                the carrier's website as"confìrmation that ttre supplies were shipped
                carrier trackÍng document must be attached to the delivery slíp   or lnvoice.

        .   The datecl delivery slip or invoice must include the   cli                               address to which supplies

            were delivered, *¿ un itemlzed list of goods tbat    inclu                               sand numerical quantities
            of the supplies deliyered to the client,ihis      document                               prices, shipping weights'
            shipping charges, or other descrlptions,
            All claims submitted for medical suppltes mtut include the same q-uantities or units that
                                                                                                      are
        ,                                                                              (Title XIX) Durable
            documented on the delÍvery slip or ìnvoice and on the Home Health Services




            one dated delivery slip or invoice for each claim submitted for each client,
                                                                                          All claims submitted for
                                                     date    the delivery slip or invoice and the same tlmeframe
            medical supplies musi reflect the same        as




                                                                     DM.Iß
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                                      DURABLD MEDICAL BQUIPMENT, MßDIC.AL SUPPLIES, AND NUTRITIONAL PRODUCTS HANDBOOK




         covered by the Home Health Services (Title XIX) Durable Medical Equipment (DME)/Medical
         Supplies Physician Order Form. The DME Certification and Receipt Form is still required for all
         equipment delivered'
          Note:      These records ønd cløims must be            retainedfor a minìmum offive yearsfrom the DOS or until
                     audìt questions, appeal¡ hearings, ìnvestigations, or court                       cqses are resolved, Use of these
                     servlces is subject to retrospective rev¡ew.

    .    The requesting proyider or ordering physician must document medical supplies as medically
         necessary in the client's POC or on a completed Home Health Services (Title XIX) Durable MedÍcal
         Equipment (DME)/Medical Supplies Physician Order Form and Addendum to Home Health
         Services (Title XIX) DME/Medical Supplies Physician Order Form,

HHSC/TMHP reseryes the right to request the signed and dated Home Health Services (Title XIX)
Durable Medical Equipment (DME)/Medlcal Suppltes Physician Order Form or Addendum to Home
Health Services (Title XIX) DM[/Medical Supplies Physician Order Form at anytime,
          Note: Client eligibilìty      can change monthly, Providers are responsiblefor verifuíng eligibility beþre
                     Providlng   suPPlies.

The DOS is the date on which supplies are delivered to the client or shipped by a carrier to the client as
eyidenced by the dated tracking document attached to the invoice for that date. The provider must
maintain the signed and dated records supporting documentation that an item was not billed before
delivery. These records are subject to retrosPective review'
          Note: TilSteps-eligible    clients who qualify for medicøIly necessary serrices beyond the limits of this
                     home health benefit wíll receive those servìces through CCP,
        Reþr   to:   Form DM,3, "Home Health Services (Title XIX) DME/Medical Supplies Physician Order
                     Form Instructions (2 pages)" ln this handbook,
                     Form DM.4, "Home Health Services (Title XIX) Durable Medical Equipment
                     (DME)/Medical Supplies Physician Order Form" in this handbook,
                     Subsection 2.4, "Durable Medical Equipment (DME) Supplier (CCP)' in Children's
                     Services Handbook (Vol. 2, Provìder Høndbooks) for speclfìc informatlon about certain
                     DME and medical .supplies.
                     Subsection 2.2.L.L, "Client Eltgibility" in this handbook,

2,2,3.1 Supply Procedure Codes
When submitting supplies on the CMS-1500 claim form, itemize the supplles, including quantities, and
also provide the Healthcare Common Procedure Coding System (HCPCS) national procedure codes.

        Referto:     Subsection 6.3.3, "Procedure Coding" in Section 6, "Claims Fillng" (Vol, 1, Generallnfor-
                     mation) for more information about HCPCS procedure codes.

2,2,3.2 Prìor Authorizatìon
TMHP must prior authorize most medical supplies, They must be used for medical or therapeutic
purposes, and supplted through an enrolled DMEH provlder ln compliance with the client's POC,

Some medical supplies may be obtained                  without prlor authorlzation; however, the provider must retain
a copy of the completed POC or Home Health Services (Title XIX) Durable Medical Equipment
(ptutÈ)¡tr¡"¿i.al Supplies Physiclan Order Form in the client's fìle, Unless otherwise noted in this
hanclbook, a completed Home Health Services (Title XIX) Durable Medical Equipment (DME)/Medícal
Supplies Physician Order Form for medical supplie s not requirlng prior authorizatlon may be valid for
a maximum of six months, unless the physician indicates the duration of need is less, If the physician




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      indicates the duration of need is less than six months, then a new Home Health Services
                                                                                                (Title XIX)
      Durable Medical   Equipment   (DME)/Medical     Supplies Physicían Order Form is required  at the end of
     the determined duration of need,
     For a list of DME/medical supplies that do not require prior authorization, providers can refer to-
     Subsection Z.2.25,"Procedurã-Codes That Do Not Require Prior Authorization" in this handbook,

      Clients with ongoing needs may receive up to six months of prlor authorlzatlons for some expendable
      medical suppliei unáer Home Health Services when requested on a Home Health Services
                                                                                                      (Title XIX)
      Durable Ueãic4 Equlpment (DME)/Medtcal Supplies Physician            Order  Form.  Providers may   dellver
      medical supplies as oráered on a Home Health      Services  (Title XIX) Durable  Medical  Eguipment
      (DMg)/ÀaËdical Supplles Physlclan Order Form for up to six months from the date of the physician's
      iignature, In these initun.er, ã r.view of the supplies requested by the physician familiar with the cllent's
      .Jrditior,, and a new Home Health Services (fitle XIX) Durable Medical Equipment (DME)/Medical
      Supplies physician Order Form is required for each new priot authorization request' Requests for prior
      auihorization can be made up to 60 áays before the start ofthe new prior authorization period' Profes-
      sional Home Health Servicesþrior authbrization re ¡uests require a review by the physician familiar
                                                                                                              with
      the client's conclition and a physician signature every 60 days when requested on a POC,
            Note:   These records ond claims must be retainedfor a minimum offive years from the DOS or until
                    øudìt questions, øppeals, hearings, lntestigations, or court coses are resolved. Use of these
                    services is subject to retrospective revieu/,

      2,2.3.3 CancellÍng     a   Prlor Authorlzotton
      The client has the right to choose his DME/medical supplyprovider and change providers' If the client




      effectlve date, Prior authorization for the new pr
      before the date TMHP receives the change of provi
      xIX) Durable Medical Equipment (DME)/Medical supplies Physician order Form'
      2.2.4 Augmentat¡ve Communicatlon Device ÍACD) System
      An ACD system, also known as an augmentative and alternative communication (AAC) device system,
      allows a client with an expressive speãch language disorder to electronically represent vocabulary and
      express thoughts or iclearin orcler to meet the client's functional speech needs,

      Digitized speech devices and synthesized speech devices are benefìts of Texas Medicaid Title XIX Home
      Health Services,
      A digitized speech device, sometimes referred to as a "whole message" speech output device, uses words
      o, pfirur., that have been recorded by someone other than the ACD system user for playback upon
      command by the ACD system user,
      provlders must use procedure codes E2500,I;2502,F2504,and82506 when billing for a dìgitized speech
      device.
                                        technology that translate
                                        guistic rules, Users of sYn
                                        independentlY create me
                                        require the user to make
      screen, or other dtsplay containing letters,

      Providers must use procedure code E2508 when billing for a synthesized speech devlce'




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TIXAS MEDICAID PROVIDER        PROCEDURES MÂNUAL:           VOL,2



      For more frequent IV tubing or add-on changes, supporting documentation must have evidence that
      includes, but is not limited to, the following:
       .    Phlebttis
       .    IV catheter-related infection
       .    The administered infusion requires more freqnent tubing changes

      2.2.14 Mob¡l¡tyA¡ds
      Mobility aids and related supplies, including, but not limited to canes, crutches' walkers, wheelchairs,
      a¡d ramp, are a benefit throt gt fiUe XIX l{ome Flealth Servtces to assist clients to move about in their
      environment,
               Note¡ A mobility aidfor a client who is birth through                     20 yeørs of age is medícally necessary when   it
                        is requireid to correct   or amelíorøte a dßability or physicøl illness ot condítìon'

      2.2,14,1 Canes, Crutches, and Walkers
      Canes, crutches, and walkers may be prior authorized as a home health service with documentation
      supporting medical necessify. This documentation must be provicled by a physician familiar with the
      cliãnt and must include informatíon on the client's impaired mobility'

      2,2,14,2 Wheelchalrs
      A wheelchair ls a non-customized chair mounted on four wheels that incorporates a non-adjustable
      frame, a sling or solld back and seat, and arm rests, Optional items included tn this definition include,
      but are not limlted, to the followingr
       ,      Handles at the back
       .      Foot rest
       .      Seat belt or safety restraint

      A wheelchair lncludes all of the following:
       .      Standard (manual) wheelchairs
       .      Standard hemi (manual) wheelchairs
       .      Standard reclining (manual) wheelchairs
       .      Lightweight (manual)wheelchairs
       .      High strength lightweight (manual) wheelchairs

      2,2.1   4,2.1 Prlor Authorizqtion
      A wheelchair may be prior authorieed for short-term rental or for purchase wlth documentation
      supporting mediial nècessity and an assessment of the accessíbility of the client's residence to ensure
      thåithe wheelchair is usable in the home (i.e., doors and halls wtde enough, no obstructions). The wheel-
      chair must be able to accommodate a2}percent change in the client's height or weight,

          4.2,2 Documentotion Requlrements
      2,2.1

      Documentation by a physician familiar with the cltent must include information on the client's impaired
      mobiltty and physical rèquirements, [n addition, the following information must be submitted with
      documentation of medical necessity:
        .     Why the client is unable to ambulate a minimum of l0 feet due to their condition (including, but
              not iimited to, AIDS, sickle cell anemia, fractures, a chronic diagnosis, or chemotherapy)
        .     If the client is able to ambulate further than I0 feet, wby a wheelchair is required to meet the client's
              needs



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                                  DUAáBr.E MEDICAL EQUIPMENT, MEDICAL SUPPLIBS, AND NUTRITIONAL PRODUCTS                            II   NDBOOK




2,2,1 4,3     Manual Wheelchalrs-Standord, Stondaú Heml, and Standard Recllnlng
A standard manual wheelchair is defìned as a manual wheelchair thatl
 .    Weighs more than 36 pounds,
 .      Does not have features to appropriately accept speclalized seatlng or positioning,
 .      Has a weight capacity of 250 pounds or less.
 .      Has a seat depth ofbetween l5 and 19 inches,

 .      Has a seat width of between l5 and 19 inches,
 .      Has a seat hetght of 19 ilrches or greater.
 .      Is fixed height only, fìxed, swing away' or detachable armrest'

 .      Is fixed, swing   awa¡ or detachable footrest,
A standard hemi (low seat) wheelchair is deflned                       as a   manual wheelchair that:

 .      Has the same features as a standard manual wheelchair,

 .      Has a seat to floor height of less than 19 inches.

A standard reclining wheelchair is defìned as a manual wheelchair that:
 .      Has the same features as a standard or standard hemi manual wheelchair,
 .      Has the ability to allow the back of the wheelchair to move independently of the seat to provide a
        change in orientation by opening the seat-to-back angle and, in combination with leg rests,
                                                                                                    open the
        knee angle,

2,2.1   4.3,1 Prior Authorizotion
A standard manual wheelchair may be considered for prior authorization for short-term rental or
purchase when all the following criteria are met:
 .      The client has impaired mobility and is unable to ambulate rnore than l0 feet.
 .      The clíent does not require speciaþ seating comPonents'

 .      The client is not expected to need powered mobility within the next S-year period,

A standard heml wheelchaÌr maybe considered for prior authorization for short-te rm rental or
                                                                                               purchase
when the client meets criteria for a standard manual wheelchair and the followlng criteria is met:
 .      The client requires alowseat-to-floor height'
 .      The client must use their feet to propel the wheelchair.
                                                                                                   or
A standard reclining wheelchair may be considered for prior authorization for short-term rental
purchase when    the ãlient meets criteria for a standard manual wheelchair and one or more of the
following critería are met:
  .     The cllent develops fatigue with longer periods of sitting upright'
  .     The client is at increased risk of pressure sores with prolonged upright position.
  .     The client requires assistance with respirations in a reclining positlon'
  .     The client needs to perform mobility related activities of daily living
                                                                                (MRADLs) in a reclinlng
        position,
  .     The client needs to improve yenous return from lower extremity in                                 a   reclining posítion,

  .     The client has severe sPasticity'




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TEXAS MEDICAID PROVIDER PROCEDURES MANUAL; VOL,2




       .    The client has excess extensor tone ofthe trunk muscles'

       .    The client has quadrlPlegia,
       .    The client has a 0xed hlP angle,
       .    The client must rest in a reclining position two or more times per day'
       .    The client has the inability or has great dlffÌculty transferring from wheelchair to bed,

       ,      The client has trunk or lower extremity câsts or braces that require the reclining feature
                                                                                                         for
              positioning.

      2,2,1    4,4 Monual wheetchairs-Lightwetght and Hìgh-stength Lightwelght
      A lightweíght manual wheelchalr is defìned as a manual wheelchair that:
       .      Has the same features as a standard or hemi manual wheelchair'
       .      Weighs 34lo 36 Pounds.
       .      Has available arm styles that are height adjustable.

      A high-strength lightweight wheelchair is defìned as a manual wheelchair that:
       .      Has the same featu¡es as a lighrweight manual wheelchair'
       .      Weighs 30 to 34 Pounds,
       .      Has a lifetime warranty on side frames and cross braces'

      2.2.1   4,4.1 Prlor Authorization
                                                                                           or purchase when
      A lightweight manual wheelchair may be considered for prior authorization for rental
      all the following criterla are met:

       .      The client is unable to propel a standard manual wheelchair at home.

       .      The client is capable of independently propelling           a   lighfweight wheelchair to meet their MRADLs
              at home.

      A high-strength lightweight wheelchair may be considere d for prior authorization
                                                                                           for rental or purchase
                      miets   aliof the criteria forã üghtweight manual wheelchair    and meets   one or more of
      whei the cliJnt
      the following criteria:
        .  The high-strength lightweight wheelchair will allow the client to self-propel while
                                                                                                 engaging in_
                      p"rfðrmeá activíttes that cannot otherwlse be completed
              frequeãtly                                                         in a standard   or lightweight
              wheelchair,
        .     The client requires frame dimensions (seat width, dePth,.or height) that cannot be
                                                                                                   accommodated
              in a sturdardlhghtweight, or hemi wheelchair  and  thi wheelchair is used at least 2 hours a day,

      2.2,14.5 Monual Wheelchalrs-Heavy'Duty and Extra Heavy Duty'
      A heavy duty wheelchair is deffned as a manual wheelchair that:
        .     Meets the standard manual wheelchalr defìnition'
        .     Has a weight capaclty greater than 250 pounds,

      An extra heavy drrty wheelchair ís defìned           as a manual        wheelchair that:

        .      Meets the standard manual wheelchair detnition'
        .      IJas a weight capacity greater than 300 pounds'




                                                                         DM.6O
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                                                                                                       HANDBOOK
                                DURABI,E MEDICAL BQUIPMENT, MEDICAL SUPPLIES, AND NUTRITIONAL PRODUCTS




2,2,1   4.5,1 Prior Author¡zatlon
                                                                                          purchase
A heavy-duty wheelchair maybe considered for prior authorízation for short-term rental or
when the client has severe spasticity or all the following criteria are meti

 .      The client meets criteria for a standard manual wheelchair'

 .      The client weighs between 250 and 300 pounds,
                                                                                               or
An extra heavy duty wheelchair may be considered for prior authorization for short-term rental
purchase when all the following criteria are met:
 .      The client meets criteria for a standard manual wheelchair'
 .      The client weighs more than 300 pounds.

2,2, 1 4,6 Wheeled îllobllltY SYstems
                                                                                            power or
A wheele¿ mobility system is a manual or power wheelchair, or sçooter that is a customized
manual mobility device, or a feature or component of the mobility device, includtng but not limited to,
the followingr
  .     Seated   positioning comPonents
  .     Powered or manual seating options
  .     Specíalfl drMng controls for powered chairs
  .     Adjustable frame
  .     Other complex or specialized components
A wheeled mobility system includes all of the following:
  . Tilt-in-space (manual) wheelchairs
  o Pediatric size (manual) wheelchairs and strollers
  . Custom ultra lightweight (manual) wheelchairs
  . All power wheelchairs
  . All scooters
2.2.1    4.6.1 Definitions ond Responsib¡litles
The following defìnitions and responsibilities apPly to the provision of wheeled
                                                                                 mobility systems:

 . Major Modifìcation - The addition of, or modification to a custom feature or component of a
    wháeled mobility system, including, by not limited to, the followíng:
        .   Seated Positioning comPonents

        .   Powered or manual seating options

        .   Speciaþ driving controls
        .   Adjustable frame
        .   Other complex or speciallzed comPonents
  .     MMDL - An activity of daily livíng requiring             the use of mobility aids (i,e, toileting, feeding,
         dressing, grooming, and bathing)'
  .      Occupatlonal Therapist - A person who ís currently licensed by the Executive Council
                                                                                              of Physical
         Therápy & Occupational Thirapy Examiners to practice    occupational therapy,




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                             CPT ONLY . COPYRIGHT 20I I AMÊRII.)AN MÈDICA L ASSOCfATION. ALL
                                                                                             NJCHfS RESERVBD'
TEXAS MEDICAID PROVIDER PROCEDURF.S MANUAL: VOL' 2




       .    phystcal Therapist - A person who is currently licensed by the Executive Council of Physical
            Therapy & Ocáupational Therapy Examiners to practlce physical therapy. An occupational or
            physiä therapisi is responsible for completing the seating assessment of a client requlled for
            obtaining a wheeled mobÍlity system,
       .    eualifìed Rehabilitation Professional (QRP) - A QRP is a person who meets
                                                                                      one or more of the
            following criteria:
            . Holds a certiôcation as an Assistive Technology Professional (ATP) or a Rehabilitation
                Engineering Technologist (RET) issued b¡ and in good standing with, the Rehabilitation
                Engineerin[ and Assistive Technology Society of North America (RESNA);
            .       Holds a certlflcation as a Seating and Mobilíty Specialist (SMS) issued by, and in good standing
                    with, RESNA; and/or
            .       Holds a certification as a CertifÌed Rehabilitation Technology Supplier (CRTS) issued b¡ and ín
                    good standing with, the National Registry of Rehabilitation Technology Suppliers (NRRTS).

            .       The QRP is resPonsible for:
                     .   Being present at and involved ín the seating assessment of the client for the rental or
                         purchãse of a wheeled mobility systetn.
                     .   Being present at the time of delivery of the wheeled mobility system.to direct the fitting of
                         tttr r!s'te* to ensure that the system functions correctly relative to the client.
      2.2. 1 4.6,2 Prior Authorization
      A wheeled mobility system may be prior authorized for short-term rental or for purchase with
      documentation supporting medicafnecessity and an assessment of the accessibiliry of the client's
      residence to ensurã that the wheelchair is usable in the home (i,e,, doors and halls wide enough, no
      obstructions). The wheelchair must be able to accornmodate a 20 Percent change in the client's height or
      weight,

      2.2,1   4,6.3 Documentqtion Requlrements
      f)ocumentation by a physicia¡r familiar with the client must include information on the client's impaired
      mobility and physicai requirements. In addition, the following information must be submitted with
      documentation of medical necessity:
       .      Why the client is unable to ambulate a minimum of l0 feet due to their condition (including, but
              not iimited to, AIDS, sìckle cell anemla, fractures, a chronic diagnosis, or chemotherapy), or
       .      If the client is able to ambulate further than l0 feet, why                 a   wheelchair is required to meet the client's
              needs,

       .        completed Wheelchair/Scooter/Stroller Seating Assessment Form with seating measurements
              ,4.
              that includes documentation supporting medical nccessity
        .     A¡ itemized component list for custom manual or power wheeled mobillty                                 systems.

      When medically necessary, prior aUthorizatlon may also be considered for the rental or purchase of an
      alternative wheelchalr on a case-by-case basis, as follows¡
        .     A rnanual wheelchair will be considered for a client who owns or is requesting                                 a   Power wheeled
              mobility system with no custom features,
        .     A manual wheelchair or a manual whçeled mobility system will be considered for a client who owns
              or is requesting a power wheeled mobility system with custom features,




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                                     cp r oNLY ' COPYI{IGHT   201   I AMERICAN MtiDICAL ASSOCI¡\TtON' ALL RICHl S RESERVED
                                     DURADLE MEDICAL EQUIPMENT, MBDICÀL SUPPL¡ES, AND NUTNITIONAL PRODUCTS
                                                                                                           HANDBOOK




2,2,t     4,7 litlanual Wheeled Mobtltty                  System      ' fllt'ln'Space
                                                                                            the
A tilt-in-space manual wheeled mobility system is deffned as a manual wheelchair that meets
following   requirements:
 .       Has the ability to tilt the frarne of the whe elchair greater than or equal to 45 degrees
                                                                                                   from horizontal
         while maintainÌng a constant back to seat angle to provide a changeof orientation and redistribute
                                                                                             (such as the trunk and
         pressure from onó area (such as the buttocks and the thigh$ to another area
         the head)
 .       Adult size has   a   weight capacity of at least 250 pounds
 .       Pediatric size has a seat width or depth ofless than 15 inches
2,2,1 4,7 .1    Prior Authorization
                                                                                                 rental
A tilt-in-space wheeled mobilfty system may be considered for prlor authorization for short-term
or purchase when all the followìng criteria are met:
 .       The client meets criterla for a standard manual wheelchair'
 .       The client has a conditlon that meets criteria for a tilt-in-space feature, including but
                                                                                                   not limited to:

         .    Severe spasticitY

         .    Hemodynamic Problems
         .    Quadriplegia
         .    Excess extensor tone

         .    Range of   motion limitations prohibit              a   reclining system, such        as   hip flexors, hamstrings, or even
              heterotoPic ossifìcation
                                                                                                has an inability
         .    The need to rest in a recumbent position two or more times per day and the client
              to transfer between bed and  wheelchair  without assistance

         .    Documented weak upper extremiry strength or                       a disease    that will lead to weak upper extremlties

         .    At risk for skin break down because ofinability to reposition body in                            a   chair to relieve pressure
              areas

2,2,14,8 Manuol Wheeled Moblllty System' Pedldtrlc Slze
A pediatric sized wheeledmobility system is defìned as a manual standard/custom wheelchair (including
thåse optimally confìgured for propulsion or custom seatlng) that has a seat
                                                                             width or depth of less than
 l5 lnches.
2,2,1        4,g Monual Wheeled MobilttySystem -Custom (lncludes Custom Ultrø-Llghtwelght)
                                                                                meets criterla for a
 Custom manual wheeled mobility systems may be considered for a client who
                                                             seating, and cannot safely utilize a stanclard
 manualwheelchair, has a conditiån ihat requires specialized
 manual wheelchaÍr,
                                                                                           wheelchair for
 A custom ultra lightweight wheeled mobility system is deflned as an optimally configured
                                                    in   standard, lightweight, or high-strength light-
 iiã.pria*r proldsioi     which cannot be  achleved    a

 weight wheelchair  that:

   r Meêts the high-strength lightweight deflnition and weighs less than 30 pounds,
     .                                                                                  seating or positioning:
          Has one or more of the following features to approprtately accept specialized
          .    Adjustable seat-to-back angle
          .    Adjustable seat dePth
          .    Independently adjustable front and rear seat-to-floor dimensions


                                                                            DM.6'
                                  CPT ONLY   -   COPY[JCHT 20I I AMDRICAN MIiOICÀL ASSOCIATION, ALL ßIGH'I'S II'!$IjRVXD'
TEXAS MEDICAID PROVIDER PROCEDURES MANUAL: VOL' 2




            .   Adjustable caster stem hardware
            .   Adjustable rear axle
            .   Adjustable wheel camber
            .   Adjustable center of gravitY
       .    Has a lifetime warr'¿nty on side frames and cross braces

      2,2.1 4.9.   I Prior Authorizat¡on
                                                                                                          for
      A custom ultra-lightweight wheeled mobtlity system may be co¡sidered for prior authorization
                purchasãwhen-the    client meets all ihe criteria for a llghtweight manual wheelchair and one or
      rental or
      more of the following criteria:
       ,    The client is able to self-propel, will have independent mobility with the use of an optimally
            configured chair, and meets all of the following criteria:
            .   The client uses the wheelchair for       a   signifìcant portion of their day to complete MRADLS.

            .   The client uses the wheelchair in the cornmunity to complete MRADLs,
            .   Powered mobilily is not anticipated within the next 5-year period'

        .   The client ts able to self-propel, will have independeut mobilify with the use of an optimally
                                                                                                                on
            co¡rfìgured chair, has a medical condition that cannot be accommodated by the seating available
            a stan-dard, lighrweight, or high-strength lightweight wheelchair 1n! 9ne   or more  of the following
            features needed by the client to ensure optimal indepe'dence with MRADL':
            .   Adjustable seat to back angle,
            .   Adjustable seat depth.
            .   Independentþ adjustable front and rear seat-to'floor dimensions'
            .   Adjustable caster stem hardware,
            .   Adjustable rear axle (adjustable center ofgravity),
            .   Powered mobilify is not anticipated within the next S-year period'

        .   The client meets all of the following criteria:
            .   The client is unable to self-propel.
            .   The clie¡rt has a documented condition that requlres custom seating, including, but not
                                                                                                        limited
                toi
                    .   Poor trunk control.
                    .   Contractures ofelbowor shoulders'
                    .   Muscle spasticitY,
                    .   Tone imbalance through shoulders or back'
                    .   Kyphosis or Lordosis.
                    .   Lack of flexlbiltty in pelvis or spine.
                    The client requires custom seatlng that cannot be accommodated on a standard' light-
                    .
                    weight, or hemi-wheelchair.
       prior authorization for labor to create a custom motded seating system is limited to a maximum of 15
       hours,




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                                    CPI'ONLI-COPYRI(JH1':OIIAMf'RICANMEDfCALASSOCIATION'ALLRICHTSRIJSI¿RVII)
                                        DURABLB MEDICAL EQU]PMENT, MEDICAL SUPPI,IES, AND NUTRITIONAL PRODUCTS TIANDBOOK




2,2,1 4,     I   0   Seoting Assessment for Manuol and Power Custom Wheelcholrs
A seating assessment is required for:
 .   The rental or purchase of any device meeting the definition of a wheeled mobility system as deffned
     under subsection2,2,14.6, "Wheeled Mobility Systems" in this handbook,
 .   The rental or purchase of any device meeting the defìnition of a wheeled mobility system or a wteel-
     chair as defìnèd under subse ction2.2.L4.2,"Wheelchairs" or subsection 2,2.l4,6, "Wheeled Mobility
     Systems" in this handbook for a client with a congenital or neurological condition, myopathy, or
     skeletal deformiry which requires the use of a wheelchair or wheeled mobility system.

A seating assessment with measurements, including speciffcations for exact mobilify/seating equipment
and all necessary accessories, must be completed by a physician, licensed occupational therapist, or
licensed physical therapist.

A QRP directly employed or contracted by the DME provider must be present at and participate in all
seating assessments, including those provided by a physician.

Upon completion of the seating assessment, the QRP must attest to his or her participation in the
uri"ruorniby siguing the Wheelchair/Scooter/Stroller Seattng Assessment Form. This form must be
submitted with all requests for wheeled mobility systems,
When the practitioner completing the seating assessment is an occupational or physical therapist, the
occupational or physical therapist may perform the seating assessment as the therapist, or as the QRP,
but maynot perfãrm in both roles at the same time, If the occupational or physical therapist is attending
the seating aisessment as the QRP, the occupational or physical therapist must meet the credentialing
requirements ancl be enrolJed ln Texas Medicaid as a QRP.
If the practitioner completing the seating assessment is a physícian, the seating assessment is considered
part of the evaluation and management seryice providecl'
       Note: If        ø   client who   is         20 yeørs oJ age reqt+ires seating supPort and meets the criteria
                                             birth throug|r
                     jor                  stroller may be considered through CCP, or ø wheelchøir may be
                           ø seøting system, ø
                     considered through Texas Medicøid Title XIX Home Health Services.

2.2. I 4,1   0.1 Prlor Authorìzation
A seati¡g assessment performed by an occupational theraplst, physical therapist, or a physlcian,wíth the
participition of a QRÞ, does not require prior authorization, A seating assessment performed by a
physician is considered part of the physician evaluation and management service.
The QRP's participation in the seating assessment requires authorization before the service can be
relmbursed. Authorization must be requested at the same time and on the same prior authorizalion
request form as the prior authorization request for the QRP fìtting and the wheeled mobiliry system or
major modifìcation to the wheeled mobility system,
prior authorization requests for the QRP's participation in the seating assessment will be returned to the
provider if the seating assessment is requested separately from the prior authorization for the QRP
htting and the wheeled mobility system or major modifÌcation to the wheeled mobility system.
The QRP participating in the seating assessment must be directly employed by or contracted with the
DME providet tèqu.rting the wheeled mobilíty system or major modifìcatiou to a wheeled mobility
system,

An authorization for the QRP's participation in the seating assessment for a wheeled mobility system or
major modiûcation to a wheeled mobility system may be issued to the QRP in 1S-minute increments,
for a time period of up to one hour (4 units).
If the seating assessment is completecl by a physician, reimbursement is considered part of the physician
office visit and will not be relmbursed separately.



                                                                     DM.ó5
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          The practitioner (occupational therapist or physical therapist) comPleting the assessment must submit
          procedure code 97001 or 97003 with modifier Ul, in order to bill for the seating assessment,
          Services for the QRP's participation in the seating assessment must be submitted for reimbursement by
          the DME provider bi[íng for the wheeled mobility system using procedure code97542 wíth modifìer
          Ul. The OUn proøder irust include the QRP specialty as the Performing provider on the claim for all
          components of the wheeled mobility system, including the QRP's particiPation in the seating
          assessment,

          Seating assessment services performed by a QRP is limited to four units (one hour),

          2.2.1 4,1   0,2 Documentation Requirements
          The seating assessment must:
           .    Explain how the client or family wtll be trained in the use of the equipment.
           .    Anticipate changes Ín the client's needs and include anticipated modifications or accessory:teeds,
                us welf as the growth potential of the wheelchair. A wheelchair must haYe growth potential that will
                accommodate a2Q percentchange in the client's height andior weight'
           .    Include signifìcant medical informatlon pertinent to the client's mobility and how the requested
                equipmeni will accolnmodate these needs, including intellectual, postural, physical, sensory (visual
                and auditory), and PhYslcal status'
           .    Address trunk and head control, balance, arm and hand functioll, existence and severity of ortho-
                pedic deformities, as well as any recent changes in the client's physical and/or functional status, and
                ãny expected or potential surgeries that wíll improve or further limit mobilify'
           .    Include information on the client's current mobllity/seating equipment, how long the clíent has
                been in the current equipment and why it no longer meets the client's needs,
           .    Include the client's height, weight, and a description of where the equipment is to be used,
           .    Include seating measurements.
           .    Include the accessibility ofclient's residence.
           .    I¡clude rnanufacturer's information, includlng the description of the specific base, any attached
                seating system components, and any attached accessories, as well as the manufacturer's retail pricing
                information and itemized pricing for manually prlced components'
            .   Include documentation supporting medical necessity for all accessories.
            ,   Be documented on the Wheelchair/Scooter/Stroller Seating Assessment Form, which must be
                slgned and dated by the qualifìed practitioner completing the assessment (occupational therapist,
                pñysÍcal therapist, or physician), and the QRP who was present and participated in the assessment.
                AIi rignatut..ãnd daies'must be current, unaltered, original, and handwritten' Computerized or
                stamped signatures and dates will not be accepted,
            .   Be submitted with the prior authorization request for the wheeled                            mobility system' The Form must
                be completed, signed and dated as outlined above.

          2,2,14.1  I Fttting of Custom Wheeled Moblllty Systems
          The fitting                          is defined as the time the Q                                                          tting the
          various sys                         system   to the client. It may                                                         ning the
          client or ca                        led  mobilify  system, Time s                                                          or travel
          time without the client present' is not included.
          A fitting is required for any device meeting the definition of a wheeled mobility system as defined under
          subsecti,on Z,i,A.e, "Wheeled Mobility Systems" in thls handbook'




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                                 DURABLE MEDICAL EQUIPMDNT, MEDIC,{L SUPPLIES, AND NUTRITIONAL PRODUCTS
                                                                                                        HANDBOOK




The fitting of   a   wheeled mobility system must ber

 .    perforrned by the same QRP that was present for, and participated iu, the seating assessment of the
      client,
 .    Completed prior to submitting a claim for reimbursement of                     a   wheeled mobiliry system.

The QRP performing the fìtting will:
 .    verifi   the wheeled mobility system has been properly fìtted to the client,

 .    Veri$, that the wheeled mobility system will meet the client's functional needs for seating,
      positioning, and mobility.
 .  Verify that the client, parent, guardian ofthe client, and/or caregiver ofthe client has received
    training and instructiòn r"gu.âitrg the wheeled mobility system's proper use and maintenance.
The eRp must complete and sign the DME Certifìcation and Receipt form after the wheeled mobility
sy$tem has been delivered and fitted to the client,
components of the fltting as outlined above have
submission of a claim for a wheeled mobility syst
instructions on the form to a.llow for proper claims processing,
Services forfìtting of a wheeled mobility system by the QRP must be submitted for reimbursement by
the DME providei of the wheeled mobiiity system using procedure code 97542 with modifìer
                                                                                                U2, The
                                                   in the seating assessment as the  performing provider
UME provider must list the QRP who partÍcipated
on the claim for all components  of the wheeled mobility  system, including the fittlng performed by the

QRP,
All adjustments and modifications to the wheeled mobility system, as well as the associated sewices by
the eÍfp for the seating assessment and fitting, within the first six months after delívery are considered
part of the purchase price and will not be separately reimbursed'
procedure code 97542with modifier U2 must be billed on the same claim                            as the   procedure code(s) for
the wheeled mobility system in order for both seryices to be reimbursed,

2,2.1 4,1 1.1 Prior    Authorlzation
prior authorization is required for the QRP performing the frtting of a wheeled mobility system, and
must be included with the request for the wheeled mobility system'
                                                                                              and
The eRp must be directly employed by or contracted with the DME company providing the system,
must be the same QRP who was present at and participated in the client's seating assessment,

A prior authorization may be issued to the QRP in
hours (8 units), for the fitting of any manual or po
hour (4 units) may be authorized to the QRP with
that fÌtting of three or more major systems is required, or that additional client training is required
                                                                                                        for
such  syste-ms,  Major systems  can  include, but are not limited to, the f<rllowing:

  ,   Complete complex seating system (planar system with trunk supports and hip supporfs
                                                                                          o¡ abcluctor
      or custom contoured seañng syste- such as a molded system) Off-the-shelf seat and back cushions
      do not constitute a complex seating system,
  .   Alternative drive controls (such as         a head    array, mini-proportional system, etc,),

  .   Additional specialty control features (such            as   infrared access)'

  .   Power positioning features (such as power tllt, power recline)'
  .   Specific purpose specialty features (such as power seat elevation systems, power elevating
                                                                                                 leg rests),




                                                                   DM 67
                                                                                              RI6HTS RßSDRVED'
                              CP'I'ONLY - COPYRIGHT 20I I AMNR{CAN MI!ÞICAI, ÀSSOCIÄIION' ALL
TEX   S   MEDICÂID PROVIDER PROCEDURES MANU'{L: VOL' 2



          2.2.1 4,1 1,2   Documentation Requirements
          When the eRp that participated in the assessment of the client is not available to conduct the fìtting of
          the wheeled mobility system, the DME provider must update the prior authorization for the wheeled
          mobility system and fìtting by submitting all of the followlng informatiotr:
           .    A letter written on the DME provider's letterhead, signed and dated by a representative of the DME
                provider other than the ncw QRP,
           .    Documentation explaining why the original QRP could not conduct the fitting, Examples may
                include, but are not limited to, documentation that the QRPI
                .    Is no longer associated    with the DME provlder requesting the wheeled mobility system,
                .    Is on an extended leave from the DME provider requesting the wheeled mobility system,

                    Notet   For purposes of thß policy, an extended leove is any leeve of more than 30 consecutive
                            cølendar daYs'

           ,    The name, TpI, and NPI of the original QRP who performed the initial assessment, and the date the
                assessment was comPleted,

           .    The name, TPI, and NPI of the QRP who will be performing the fitting'
           .    A copy of the original, physician-signed Home Health Services (Title XIX) DME/Medical Supplies
                Physician Order Form.

          A copy of this documentation must be mairrtained by the provider in the client's medical record and be
          available upotr request by HHSC or its designee,

          2.2,14.1    Power Wheeled Mobillty Systems- GtouP I through Group 5
                      2
          A power wheeled mobility system or powered mobility device (PMD) is a^professionally manufactured
          device that provides motórized wheeled mobility and body support specifically for
                                                                                                   individuals with
          impaired *iUitity.  pMDs    are four- or six-wheeled   motorized  vehicles whose  steering  is operated by an
          electronic device or joystick to control  direction, turning, and  alternative electronic functions,  such as
          seat controls,

          Each pMD must include all of the following basic components that may not be billed separately:
            .   Lap belt or safety belt (This does not include multiple-attachment-point                                    positioning belts or padded
                belts,)
            .   Battery charger, siûgle mode
            .   Batteries (initial)

            .   Complete set of tires and casters, any type
            .   Leg rests
            .   Foot rests or foot Platform
            .   Arm rests
            .   Anyweight-specifìc components (braces, bars, upholstery, brackets, motors, gears, etc,)                                     as   required
                by client weight caPacitY
            .   Controller and inPut device
           The following defìnitions apply to PMDs:
            .   No-power Option - A category of PMDs that cannot accommodate a Power tilt, recline, or seat
                                                                                                              no-
                elevation ,yri.¡¡, A pMD that can accept only power-elevating leg rests is considered to be a
                power option chair'



                                                                                      DM-6E
                                        CP1' ONLY - COPYRIGHT   20 t   ì              MEDIC¿{L                   ALL RlGt fl'S ßESËRVltD'
                                                                           ^MERICAN              ^SSOCI¡AlION'
                                  DURABI,E MEDICAL EQUIPMENT, MBDICAI. SUPPLIES, AND NUTRITIONAL PRODUCTS HANDBOOK




 .    Single-Power Option - A category of PMDs that can accept and operate a Power tilt, power recline,
      o. ipo*"r seat ãlevation system, but not a combination power tilt and recline seating system. A
      singlì-power option PMD might be able to accommodate power elevating leg rests, or seat elevator,
      in åmlinatton with a powe. iilt or po*.r recline. A PMD does not have to be able to accommodate
      all features to meet this defìnition.
 .    Multiple-Power Option - A category of PMDs that can accept and operate a combinatlon power tilt
      and rôcüne seating system, A multiple-power option PMD might also be able to accommodate
      power elevating le-g iests, or a power seat elevator, A PMD does not have to accommodate all
      features to qualìfy to meet this defÌnition'

        2.1 Prlor Authorization
2.2,1 4.1
prior authorization for a power wheeled mobility system/PMD require s the following documentation in
addition to all documentation required for a custom manual wheelchair;
 .    The client's physical and mental ability to receive and follow instructions related to responsibilities
      of using equþàent. The client must be able to operate a PMD independently. The therapist must
      proviaã wiitten documentatlon that the client is physically and cognitively capable of managing a
      PMD.
 .    How the PMD will be operated (i.e,, joystick, head pointer, puff-and-go)'
 .    The capability of the client to understand how the PMD operates.

 .    The capability of the caregiver or client to care for the PMD and accessories,

2.2,14,12.2 Group I PMDs
All Group I PMDs must       have all the specified basic comPonents and meet all the following
requírements:
  .   Standard integrated or remote proportional joystick
  .   Nonexpandablecontroller
  .   Incapable of upgrade to expandable controller
  .   Incapable ofupgrade to alternatíve control devÌces
  .   May have cross brace construction
  ,   Accommodates nonpowered options and seating systems (e,g., recline-only backs, manually
      elevatlng leg rests [except captains chairs])
  .   Length - less than or equal to 40 inches
  .   Width - less than or equal to          24 inches

  .   Minimum top end      sPeed     -   3   mPh

  .   Minimum range - 5 miles
  r   Minimum obstacle climb - 20 mm
  .   Dynamic stability lncline - 6 degrees

Prior Authorization Requirements
A Group I pMD maybe cãnsidered for prior authorization for rental or purchase when all the following
criteria are met:
  .   The client will use the PMD for less than 2 hours per day'
  .   The client will use the PMD indoors on smooth, hard surfaces'

  '   The client will not encounter obstacles in excess of 0.75 inch'


                                                                  DM.69
                            CPT   oNLY ' coPYRICHT 20ll AMER¡C¡\N MEDIC,{L                 /lLL   RlCllls   Rr}SURVIiD'
                                                                             ^SSoÜÀlloN'
TEXAS MEDICAID PROVIDER PROCEDURES MANUAI,: VOL' 2




      2.2.14.12.3 GrouP 2 PMDs
      All Group  PMDs must have all the specified basic components and meet all the following
                     2
      requirements:
       .       Standard integrated or remote proportional joystick
       .       May have cross brace construction
       .                                                                                            lateral trunk
               Accommodates seating and positioning items (e,g,, seat and back cushions, headrests,
               supports, lateral hip.rippottt, medical thigh supports [except caPtains chairs])

       .       Len$h - less than or equal to 48 inches
       .       Width - less than or equal to 34 inches
       .       Minimum toP end sPeed - 3 mPh
       .       Minimum range - 7 miles
       .       Minimum obstacle climb - 40 mm
       .       Dynamic stability incline - 6 degrees

      Prlor Authorization Requirements
                                                                                          the following
      e Croof Z PMD may be äonsidered for prior authorization for rental or purchase when
      criteria are met:
        .      The client will use the PMD for 2 or more hours per day'
        .      The client will not routinely use the PMD for MRADLs outside the
                                                                                home'

        .      The client will not ençounter obstacles in excess of 1'5 inches'

      2.2.14.12,4 GrouP       j   PMDs
                                                                                     following
      All Group 3 PMDs must have all the specifìed baslc components and meet all the
      requirements:
        .      Standard integrated or remote Proportional joystick
        .      Nonexpandable controller
        .      Capable ofupgrade to expandable controller
        .      Capable ofupgrade to alternative control devrces
        .      May not have cross brace construction
        .                                                                                    headrests, lateral trunk
               Accomrnodates seating and posltioning items (e,g., seat and back cushions,
                                                             supports         captains chaits])
               supports, lateral hip t,ippottt, medial thigh          [except

           .    Drive wheel suspension to reduce vibration
           .    Len$h - less than or equal to 48 inches
           .    Width - less than or equal to 34 inches
           .    Minimum toP end sPeed - 4'5 mPh
           .    Minimum tange'12 miles
           .    Minimum obstacle climb - 60 mm
           .    Dpramic stability incline - 7.5 degrees




                                                                      DM.7Q
                                    cPtoNlY.coPYRlcH.I.20llÀMr'RIcANM!DlcALAssoclATloN.ÀLLRIGIlTsR6ssRvEo'
                                DURÁBLE MEDICÀL EQUIPMENT, MEDICAL SUPPLIES, AND NUTRITIONAL PRODUCTS H.ANDBOOK




Prior Authorization Requirements
A Group 3 PMD may be lonsidere<l for prior authorization for rental or purchase when the following
criteria are met:
 .    The client's mobility limitation is due to a neurological condition, myopathy, or congenital skeletal
      deformity.
 .    The client may routinely use the PMD for MRADLs outside of the home,
 .    The client will use the PMD primarily on smooth or paved surfaces,
 .    The client will not encounter obstacles in excess of 2,5 inches'

2,2,1 4,1   2.5 GrouP 4 PMDs
All Group 4 PMDs must have all the specified          basic comPonents and meet all the                              following
requirements:
 .    Standard integrated or remote proportional joystick
 .    Nonexpandablecontroller
 .    Capable of upgrade to expandable controller
 .    Capable ofupgrade to alternative control devices
 .    May not have cross brace construction
 .    Accommodates seating and positioning items (e,g., seat and back cusbions, headrests, lateral trunk
      supports, lateral hip supports, medial thÍgh supports [except caPtains chairs])
 .    Drive wheel suspension to reduce vibration
 .    Length - less than or equal to 48 inches
 .    Width - less than or equal to 34 lnches
 .    Minimum top end sPeed - 6 mPh
 .    Minimum range -     16   miles

 .    Minimum obstacle climb - 75 mm
 .    Dynamic stability incline - 9 degrees

Prior Authorization Reguirements
A Group 4 pMD may be considered for prior authorization for rental or purchase when all the following
criteria are met:
  .   In addition to using the PMD in the home, the client will routinely use the PMD for MRADLs
      outside the home.
  .   The client will routinely use the PMD on rough, unpaved or uneven surfaces.
  .   The client wtll encounter obstacles in excess of 2,25 inches,
  .   The client has a documented medical need for           a   feature that is not available on a lower level PMD,

Do    cumentation Requirements
                                                                                                is sígned
The submitted documentation for a Group 4 PMD must include a completed assessment that
and dated by a physician or a lìcensed occupational or physical therapist and includes the following:

  .   A description of the environment where the PMD will be used in the routine Performance of
      MRADLs.
  .   A listing of the MRADLs that would be possible with the use of a Group 4 PMD that would not be
      possible without the GrouP 4 PMD,


                                                              Df,t-7   I
                           cpT oNLY . COPYRTCHT 201I ÀM0RICAN MEDTCÄL                            fllcti'|.! lll¡ltsRVrill
                                                                           ^SSOCIA'l'tON. ^l,L
TEXAS MEDICAID PROVTDER PROCEDURBS MANUAL: VOL,2




       .    The distance the client is expected to routinely travel on a daily basis with the Group 4 PMD'

             Notet     The enhanced features found on a Group 4 PMD must be medically necessary to meet the
                       client's routin, Un¡Ot and will not be approt'ed for leisure or recreational activities.

      In additton to meeting criteria for Group     through Group 4 PMDs' the submitted documentation of
                                                         2
     medical necessity muit demonstrate that the client requires the requested power option (e.g., the need
     for a power recline or tilt in space, or a combination power tilt and power recline), the no-power option'
     single-power option, or multiple-power option as defined in subsection 2'2'14'12, "Power Wheeled
     tvtobiliÇ systems- Group I through Group 5" in this handbook,

     2.2.14.12,6 2,2.l4.t2,6AddittonalRequirements'Group2throughGroup4No-PowerOptlon
     Group 2 through Group 4 no-power option PMDs must have all the specified basic components and
      meet all the following requirements:
       .    Nonexpandableco¡rtroller
       .    Incapable ofupgrade to expandable controller

       .    Incapable ofupgrade to alternative control devices
       .    Meets the defìnition of no-power option
       .    Accommoclates nonpowered options and seating systems (e,g., recline-only backs, manually
            elevating leg rests Iexcept captains chairs])

      2.2,14,1   2.7 Group 2 through Group 4 Single-Power Optlon
      Group 2 through Group 4 single-power option PMDs must have all the speciûed basic components and
      meet al1 the following requirements:

       '    Nonexpandablecontroller
       ,    Capable of upgrade to expandable controller

       .    Capable of upgrade to alternative control devices
       .    Meets the defìnition of single-power option

      2.2.14,12.8 Group 2 through Group 4 Multiple'Power Option
      Group 2 through Group 4 multiple-power option PMDs must have all the speclfìed basìc components
      and meet all the following requirements:
       .    Nonexpandablecontroller
       .    Capable ofupgrade to expandable controller
       .    Meets the defìnition of multlple-power option
       .    Accommodates       a   Yentilator

      2,2.14,12.9 GrouP 5 PMDs
      All Group    5   pMDs must have all the specifìed basic components and meet all the following
      requirements:
        .   Standard integrated or remote joystick
        .   Nonexpandablecontroller
        ,   Capable ofupgrade to expandable controller
        .   Seatwidth - minimum of 5 one-inch options
        r   Seat depth -   minimum of 3 one-inch options



                                                                      DM-71.
                                     CPTONLY-COPYRICHl'20ltAMERlC'1NMßDlCÁLAI|SOCIAI]ON
                                                                                          ^LLlUCHlsREsriRvED'
                              DUR.ABLEMEDICALDQUIPMENT,MEDICALSUPPLIBS,ANDNUTRITIONALPRODUCTSHANDBOOK



 .   Seat height - adjustment requirements = 3 inches

 .   Back height - adjustment requirements minimum of 3 options
 .   Seat-to-back angle range of adjustment - minimum of 12 degrees
 .   Accommodates nonpowered optlons and seating systems
 .   Accommodates seating and positioning ltems (e.g,, seat and back cushions, headrests, lateral trunk
     supports, Iateral hip suPports, medial thigh supports)
 .   Adjustability for growth (minimum of 3 inches for width, depth, and back height adjustment)
     Special developmental capability (i.e', seat to floor, standing, etc')
 '
 .   Drive wheel suspension to recluce vibration

 '   Len$h - less than or equal to 48 inches
 .   Width - less than or equal to 34 inches
 .   Minimum top end sPeed - 4 mPh
 .   Minimuni runge -    12 miles

 .   Minimum obstacle climb - 60 mm
 .   Dynamíc stability incline - 9 degrees
 .   Passed crash test

Prior Authorization Requlrements
A Group   5pediatric pMd may be considered for prior authorization for rental or purchase when all the
followtng criteria are meti
 .   The client weìghs less than 125 p<lunds,

 .   The client is expected to grow in height.
 .   The client may reguire growth of up to 5 inches in width,
 .   The client may reguire a change in seat to floor height up to 3 inches'
 .   The clie¡t may require    a seat   to back angle range of adjustment in excess of 12 degrees,

 .   The client requires special developmental capability (i,e., seat to floor, standing, etc.).

2,2,14.12,10 Group 5 Single-PMD.
                                                                                                          ,nd have the
                                                                                                           not a combination
                                                                                                          ting leg rests, or seat


Prior Authotization Requlrements
                                                                            authorlzation for rental
A Group 5 pediatric pMD with singte power option maybe considered for prtor
or purchase when all the following critetia are meti
 .   The client meets criteria for a Group 5 PMD.
 .   The client requires a drive control interface other than a hand or chin-operated-standard Propor-
     tional joystick (examples include but are not limited to head control, sip and pufl or
                                                                                            switch control),




                                                               DM.71
                           CI'IL]NLY.COPYRICIITzOIIAMÚIIÌCÁNMEDICÀI,ÂSSOCIA'ì'IONÀLt'RICHTSRDSIiRVIjIJ'
TEXAS MEDICAID PROVIDER PROCEDURES MANUÂL: VOL.2




                0 Group 5 MultiPle'PMDs
     2,2.1 4,1 2.1

     Group 5  multiple-power optlon PMD must have all the specifìed basic components and meet all the
     following requirements:
       .    Has the capability to accept and operate a combination power tilt and recline seating system, and
            may also bã able io accommodate power elevatlng leg rests, or a power seat elevator.
       .    Accommodates a ventilator,

      Prior Authorization Requirements
      A Group      5   pediatric PMD with multiple power option may be considered for prior authorization for
      rental or purchase when the following criteria are met:
       .    The client meets criteria for a Group 5 PMD.
       .    'Ihe client requires a drlve control ínterface other than a hand or chÍn-operated standard Propor-
            tional joystick (examples include but are not limited to head control, stp and puff, switch control)'
       .    The client has a documented medical need for a power tilt and recline seating system and the system
            is being used on the wheelchair or the client uses a ventilator which is mounted on the wheelchair.

      2,2,1 4,1    3   Wheelchaìr Ramp'Pottable and fhreshold
      Portable and threshold ramPs are a benefìt of Texas Medicaid'
                                                                                                           no more
      A portable ramp is defìned as a unit that is able to be carried as needed to access a home, weighs
      thån 90 pounds, or measures   no more   than   l0 feet in length, A threshold ramp   is defined as a unit that
      provides access over elevated thresholds.
                                                                                                  for prior authori-
      One portable ramp and one threshold ramp for wheelchair access may be considered
      zation when documentation supports medical necessity, The following documentation supporting
      medical necessity is required:
       .    The date of purchase and seríal number of the client's wheelchair or documentation of                       a   wheelchair
            request being reviewed for purchase
       .    Diagnosls with duratíon of expected need
       .    A,   diagram of the house showlng the access points with the ground-to-floor elevation and any
            obstacles

      Ramps may be considered for rental for short term disabilities and for purchase
                                                                                              for long term disabil-
                                                                             not   benefìt of Texas Medicaid,
      iri... ttAoUiílty aid lifts for vehicles and vehicle modifications are     a


      2.2,1 4,1    4 Power Elevatlng Leg Llfts
                                                    adedicated motor and related electronics with or without variable
                                                   ws the leg rest to be raised and lowered independently of the recline
                                                   includes a switch control which may or may not be integrated with
      the power tllt and/or recline control(s),

      2.2.1 4.1   4,1 Prior Authorizotlon
      power elevating leg lifts rnay be prior authorized for clients who have compromised uPper extremity
                                                                                                         crlteria for
      function that liiritõ the client's uUitity to use manual elevating leg rests, The client must meet
      a PMD with a reclining    back   and at  least one of the following:

        .   The client has a musculoskeletal condÍtion such as flexion contractures of the knees and
                                                                                                     legs, or the

            placement   of a brace that prevents 90-degree flexlon at tl¡e knee'

        .   The client has signiflcant edema of the lower extremities that requires elevating the client's
                                                                                                           legs,

        .   The client experiences hypotensive episodes that require frequent positioning changes,



                                                                          DM-74
                                    CPT ONLY   . COPYRÍGHT 20I I AMERICAN MET'ICAL ASSOCIATION ALL RÌCII'TS RESIRVID.
                                       DUR.ABLE MEDICAL EQUIPMENT, MEDICAL SUPPLIES, A'ND NUTRITIONAL PRODUCTS HANDBOOK




 .    The client Deeds power tilt-and-recline and ls required to maintain anatomically correct positioning
      and reduce exPosure to skin shear.

2.2.1 4,1   4.2 Documentatlon Requ¡rements
The submitted documentation must include an assessment comPleted, signed, and dated by a physician
or a licensed occupational or physical therapist that includes the following:
 .    A description of the client's current level of function wlthout the device
 .    Documentation that identifies how the power elevating leg lifts will improve the client's function
 .    A list of MRADLs the client will be able to perform with the power elevating leg lifts that the client
      is unable to perform without the power elevating leg lifts and how the device will increase
      independence
 .    The duration of time the client is alone during the day without assistance
 .    The client's goals for use of the power elevating leg lifts

2,2,14,15 Power Seat Elevotlon System
A power seat elevation system is used to ralse and lower the client in their seated position without
chãnging the seat angles to provide varying amounts of added vertical access.
The use of       a   power seat elevation system willl
  .   Facilitate independent transfers, particularþuphill transfers, to and from the wheelchair, and
  .   Augment the client's reach to facilitate Índependent performance of MRADLs in the home.

2.2. 1 4, 1 5,   1   Pri or   Authorization
A power scat elevation system may be prior authorized to promote independence in a client who meets
all of the following criteria:
  .   The client does not have the ability to stand or pivot transfer independently.
  .   The client requires assistance only wlth transfers across unequal seat heights, and as a_result of .
      having the power seat elevation system, the clíent will be able to transfer across unequal seat heights
      unassisted,
  .   The client has limited reach and range of motion in the shoulder or hand that prohibits independent
      performance of MRADLs (such as, ãressing, feeding, grooming, hygiene, meal preparation, and
      toileting).

2.2.1 4.1   5.2 Documentatlon Requ¡rements
The submitted documentation must include an assessment completed, signed, and dated by a physÍcian
or a licensed occupatíonal or physical therapist that includes the following:
  .   A description of the client's current level of function without the device
  .   Documentation that ldentifies how the power seat elevation system will improve the client's
      functlon
  .   A list of MRADLs the client will be able to perform with the Power seat elevation system that the
      client is unable to perform wlthout the power seat elevation system and how the device will increase
       independence
  .    The duration of time the client is al<¡ne during the day without assistance
  .    The client's goals for use of the power seat elevation system
         Note: Apowerseatelevationsystemoptionwillnotbeauthorizedfortheconvenienceofa.caregiu_er,
               oi ¡t¡, device will not'allow the client to become ìndependent with MRADLs ønd trønsfers'


                                                                         Irìt.7s
                                    cp'ÍoNr,Y - coPYRlCHl'l0ll ÀMltRlcAN MllDlcALÁssocl^TtoN               llf':sFlRVÊD'
                                                                                               ^lLRfcHTs
TEXÂS MEDICAID PROVIDER PROCEDURBS MANUAL¡ VOL' 2




      2,2,1 4,1       6 Seat Llft    Mechanlsms
                                                                                                    by the client'
      A medically necessary seat lift rñechanism is one that operates smoothl¡ can be controlled
      and effectively assists the client in standing up and r itting down without other assistance'

                                                                                                     the amount
      The payment for a recliner or chair with the incorporated seat lift mechanism ts limited to
      of the seat lift mechanism.

      2.2.1 4.16,1 Prior Author¡zotion
      A seat lift mechanism may be prior authorized for clients who meet all the
                                                                                 following qiteria:

       .    The client must have severe arthritis of the hip or knee or have a severe neuromuscular
                                                                                                     dísease,

       .                                                                                   and be prescribed to
            The seat lift mechanism must be a part of the physician's course of treatment
            correct or ameliorate the client's condition,
       .    Once standing, the client must have the ability to ambulate'

       .                                                                                   or any chair in their
            The client must be completely incapable of standing up from a regular armchair
            home,
                                that a client has dificulty or is even
                                                                                                                                     ticulørly
              Note:       The Jøct
                         ølow chair, ís not suffícíeiíjustificationfo'
                                                                                                                                     who are
                  '       capable of atnbulatiig       ro, gtt      out of      øn'ord                                               ate ønd
                          the chøir has arms.
                                                                                             moothly, can be controlled by the cllent, and
                                                                                              without other assistance' A seat lift operated
                                                                                              motion and jolts the client from a seated to
                                                                                   id.

      2,2.1 4.1   6.2 Documentat¡on Requirements
                                                                               signed, and dated by a physician
      The submitted documentation must include an assessment completed,
      or a licensed occupational or physical therapist that includes the followtng:

        .   A description of the client's current level of function wíthout the device
        .                                                                                   client's function
            Documentation that identiffes how the seat lÍft mechanism will improve the
                                                                                                 that the client is
        .   A list of MRADI6 the client wilt be able to perform with the seat lift mçchanism
            unable to perform without the seat lift mec-hanism and  how  the dcvice  will increase   independence

        .   The cluration of time the client is alone during the day without assistance
        .   The client's goals for use of the seat lift mechanism
                                                                                 that all appropriate therapeutic
       Supporting documentatir¡n must be kept in the client's record that shows
                                                         have  been tried and that theyfailed to enable the client
       móáditieJ(.,rch as medication, physical therapy)
       to transfer from a chair to a standing position'

       2.2,14.17 Batterles and Eotlery Charger
                                                                                        a PMD' Replacement
       A battery charger and initial batteries are inclucled as part of the purchase of
                                                    may  be considered   for reimbursement  if they are no longer
       batteries or a replacement battery charger
       under warrantY,
                                                                                  Labor is not reimbursed
       A maximum of one hour of labor may be considered to install new batteries.
       with the purchase of a new PMD or wíth replacement battery chargers,




                                                                                     DM-76
                                        CPl' ONLY   ' COPIRICHT   20 I   I ÀMEIIICAN MgDICAI, ÁSSOCIATION' ALL RICH'IS   RÉSERVED'
                                     DURABLE MEDICAI, BQUIPMENT, MEDICAL SUPPLIES, AND NUTRITIONAL PRODUCTS }IANDBOOK




2.2,1 4.1 7.1 Prior      Authorlzallon
Batteries andbatterychargerswill notbe prior authorized for replacementwithin sixmonths of delivery.
Batteries and battery chaigers within the ffrst six months after delivery are consiclered part of the
purchase price.

A maximum of one hour of labor maybe prior authorized to install newbatteries. Labor will not be prior
authorized for a new power wheelchair or for replacement battery chargers.

2.2.1 4.1 7.2     Documentotlon Requ¡rements
To request prior authorization for replacement batteries or a replacement battery charger, the provider
must ãocument the date of purchaseãnd serial number of the currently owned wheelchair as well as the
reason for the replacement batteries or battery charger,

Documentation required supporting the need to replace the batteries or battery charger must include;
 .   Why the batteries are no longer meetlng the client's needs, or
 .   Why the battery charger is no longer meeting the client's needs

2,2, 1 4.1 8 Power Wheeled Moblllty Systems' Scooter
A scooter is a professionally manufactured three- or four-wheeled motorized base operatcd by a tlller
with a professionally manufactured basic seating system for clients who have little or no positioning
needs,

A scooter must meet all the following requirements:
 .   Length- less than or equal to 48 inches
 .   Width-       less   than or equal to 28 inches
 .   Mínimum top end sPeed' 3 mPh
 ,   Minimum range-            5 milcs

 .   Minimum obstacle climb-              20   mm
 .   Radius pivot turn ofless than or equal to 54 inches
 r   f)ynamic stability incline- 6 degrees
Custom seating for scooters is not a benefit of Texas Medicaid Title XIXHome Health Services. Repairs
to scooters wilIbe considered only for a scooter purchased by the Texas Medicaid.

2,2.1 4,   I   8,1 Prtor Author¡zat¡on
A scooter may be prior authorized for ambulatory-impaired clients with_good head, trunk, and
arm/hand controt, without a diagnosis of progressive illness (including, but not limited to, progressive
neuromuscular diseases such as amyotrophic lateral sclerosis [AtS])'
To request prior authorization for a scooter, the client must not own, or be expected to require, a Power
wheelchair within fìve years of the purchase of a scooter,
A scooter may be prior authorized for a short-term rental or an initial three-month trial rental period
based on documentation supporting the medical necessity and approprlatencss of the devlce,

Assessment of the accessibility of the client's residence must be completed and included in the prior
authorization documentation to ensure that the scooter is usable in the home (i,e,, doors and halls wide
enough, no obstructions).
A scooter must be able to accommodate a 20 percent change in the client's height and/or weight,




                                                                             DM.77
                                 CPT ON LY . COPYRICH'¡'   20 I   I AMSRICAN MNDICAL   ASSOC'A'TION,   ÁLL ßfCHl'S IIESERVIiD.
TBXAS MEDICAID PROVIDER PROCEDURES MANUAL: VOL,2




     2.2.1 4,1   8,2 Documentotion Requ¡rements
      prior authorization for a scooter requires all the documentation reguired for a standard power wheel-
      chair and meets all the following críteria:
       .     The client's physical and cognitive ability to receive and follow instructions related to the responsi-
             bilitÍes of using the equiPment'
       .     The ability of the client to physically and cognitively operate the scooter independently.
       .     The capabÌlity of the client to care for the scooter and understand how it oPerates,

     2.2.14,19 CltentLlft
      A ltft is a portable transfer system used to move             a   nonambulatory client over a short distance from bed
      to chair and chair to bed,
      A client lift for the convenience of a caregiver ls not                  a   benefìt of Texas Medtcaicl.

      A hydraulic Iift is for a client who is unable to assist in their own transfers and ls operated by the weight
      or pressure ofa liquid,
      An electric lift is operated by electricity and may be considered when                       a   hydraulic lift will not meet the
      client's needs,

               Note: Portable lifts that can         outside the home setting hydraulìc or electrtc, are not ø benefit
                                               be used
                      through   iitl, Xlxuo^e      HealthSeryices. For cllents who øre birth through 20 years of age,
                      portatle lífts that can be used outside the home setting may be consldercd through CCP'

      2.2.1 4.1 9.1 Prior   Authorization
      A äient lift will not be prior authorized for the convenience of a careglver,

      A client limit must be able to accommodate a20 percentchange in the client's height and/or weight,

      2,2,14,20 Electt¡cL¡ft
      prior authorization for an electric líft may be considered when the client meets criteria for a hydraulic
      liftand additional documentation explains why a hydraullc lift will not meet the client's needs,

               Note: portabte lifis thøt cøn be used outside the home setting, hydtaulic or electric, øte not a benefit
                     through iitlt XIX Ho-e Heqlth Seryices, For clients who øre bìrth through ,20 yeøts_of age,
                     portøtle ltfts thøt cen be used outside the home seltíng møy be considered through CCP,

      2,2.1 4,21 Hydraullc        Lift
      Hydraulic lifts require prior authorization,

      2.2.1   4.21,1 Documentation Requlrements
      prlor arrthorization for a hydraulic Iift may           be considered            with the following documentation:

        .     The inability of the client to assist in their own transfers
        .     The weight of the client and the weight capacity of the reguested                    lift
        .     The availabitity of a caregiver to operate the            lift
        .     Training by the províder to the client and the caregiver on the safe use of the lift

      2,2,14,22 Stonders
      A stander ís a device used by a client with neuromuscular conditions who is unable to stand alone.
      Standers and standlng p.ogiams can improve digestion, increase muscle strength, decrease contrac-
      tures, increase bone d'ettsity, and minlmize decalclfìcation (this list is not all inclusive),




                                                                         ftM-78
                                   CPT ONLY - COPYRICHT 20I   I AMCRICAN MIJDICAI' ASSOCIATION. ALL RICHTS Rf.SERVED
                                       DURABLE MEDICAL EQUIPMENT, MEDÍCAL SUPPLIES, AND NUTRITIONAL PRODUCTS
                                                                                                             HANDBOOK




2.2.1     4,22.1 Prlor Authorization
Standers, including all accessories, regulre prior authorization. Standers and gait trainers
                                                                                             will not be
prior authorized for a client within  one year of each other.

2,2.1 4.22.2        Documentation Requìrements
prior authorization may be considered for the                    standers     with the following documentation;

 . Diagnoses relevant to the requested equipment, including functioning level and ambulatory status
 . Antícipated benefìts of the equípment
 . Frequency and duration of the client's standing program
 . Anticipated length of time the client will require this eguipment
 o Client's height, weight, and age
          Anticipated changes in the client's needs' anticipated modiflcations' or accessory needs'                            as   well as
  '
          the growth potential of the stander

2.2, I 4.23 Golt Tralners
                                                                                            provide the
Gait trainers are devices with wheels used to train clients with ambulatory potentlal, They
same benefits  as the stander, in addition to assisting with gait training.

2,2,1 4,23.1 Prior      Authorlzation
Prior authorization for      gait trainer may be considered wÌth documentation supporting medical
                             a
necessíly and ur,                ofthe accessibility ofthe client's re                                                                    is

usable  in the
                  "r..rrrrrùrt
               home  (i,e., doors   and halls are wide enough and h                                                                       n
familiar with the cllent documents that the client has ambulato
                                                                                                                                          it
training program, and when the client meets the criteria for a stander.

2,2,1      4.24 Accessories, ModÎficatlons, Adtustments and RePalrs
Accessories, modifìcations, adjustments, and repalrs are benefìts of Texas Medicaid as
                                                                                       outlined below,

  .       All modifìcations, adjustments, and repairs to standard mobility aid equipment within the fìrst ¡ix
          months after delivery are considered part of the purchase price'
  .       All modifications and adjustments to a wheeled mobility system, as well as the associated services
          by the eRp for the seating assessment and fitting, within the first six months after delivery
                                                                                                        are

          considered part of the purchase price.

Mobility aids that have       been purchased are anticipated to last a                      minimum of fìve years,
                                                                                    new seating assessment
 A major modification to a wheeled mobility system requires the completion of a
 by a qualifierl practitioner (physician, occupational therapist, or physical theraplst), with the partici-
 pation of a QRP.
 prior authorizatlon for equipment replacement is considered within five years of equipment purchase
 when one of the followlng occurs:
      .                                                                                       equipment no
          There has been a signifìcant change in the client's condition such that the current
          longer meets the client's needs.
                                                                                           cost-effective to
      .   The equipment is no longer functional and either cannot be repaired or it is not
          repair.




                                                                          DM.79
                                 cpl   oNl,Y - coPYRlc H't ?0t I AMl,RlCÀN MÈDtcÀt.                  At.L RICIITS RIISERVED'
                                                                                      ^ssoclÂTloN,
TEXÂS MEDICÂID PROVTDER PROCEDURES MANUAL: VOL,2




      A wheeled mobility system that has been fìtted and delivered to the client's home by a QRP and then
      found to be inappiopriate for the client's condition will not be eligible for an upgrade, replacement, or
      major modiffcuiion *ithir, the fìrst six months following purchase unless. there has been a slgnificant
      .hang. in the client's condition, The sÍgnificant change in the client's condition must be documented by
      a physician familiar with the client.

     2.2.1   4,24.1 Prior Authorization

      Modifications
      Modifìcations to custom equipment after the first six months from fìtting and delivery may be prior
                                                                                                      that cannot
      authorizecl when a change òccurs in the client's needs, capabilities, or physical/mental status
      be anticipated,

      Modifìcations are the replacement of components due to changes in the client's condition, not
      replacement due to the component no longer functioning as designed. All modifìcations within the first
      six months after delivery are consÍdered part of the purchase price'

      Documentation must ínclude:
       .     All projected changes in the client's mobility needs
       .     The date ofpurchase, the serial number ofthe current equipment, and the cost ofpurchasing new
             equipment as opposed to the cost of modifying current equipment
      Major modifications to a wheeled mobilily system also require a new seatlng assessment be completed
      anã submitted with the prior authorization request for the major modifìcation, A request
                                                                                                 for authori-
      zation of the eRP's participation in the seating assessment for the major modifìcation must be included
      with the prior authorization request  for the major modifìcation'

      A wheeled mobility system that has been fìtted and delivered to the client's home by a QRP and then
      found to be inappropriate for the client's condítion will not be eligible for an upgrade, replacem^ent, or
      major modifìcuiion withi" the first six months following purchase unless tbere has been a signifìcant
                                                                                                            by a
      ch.nge in the client's condition, A significant change in the client's condition must be documented
      physician familiar with the client,

      Adjustments
      Adjustments must be prior authorized and do not require supplies'
      Adjustments within the ffrst slx months after delìvery, includingadjustments to a wheeled mobility
      sysiem within the fìrst six months after fìtting and delivery by a QRP will not be
                                                                                          prior authorized.
      Ád¡ustments within the fìrst six months after delivery are considered  part  of the purchase price.

      A maximum of one hour of labor for adjustments may be príor authorized                              as    needed after the   trst   six
      months from delivery.

      Repairs
      Reiairs require replacement of components that are no longer functional,
                                                                                                 of medical
      Repairs to client-owned equipment may be prior authorized as needed with documentation
      neiessify. Technician fees are considered part of the cost of the repaír.
      providers are responsible for maintaining documentation in the client's medical record specifying the
      repairs and supporting medical necessity.
                                                                                       of rental equipment
      Rentals may be prior authorized during the period of repair. Routine maintenance
      is the provider's resPonsibilitY,




                                                                        DM.6O
                                  CP'¡ ONLY - COPYRICH'r 20l L{MÊRIC^N l'ILDICAL ASSOCI^TION         RlOHl s   lUiS[tvED'
                                                                                               ^LL
                                   DUR.'\Br,F, MF.DICAL EQUIPMENT, MEDICAL SUPPLIE.g, AND NUTRITIONAL PRODUCTS r{A¡*DBOOK




2,2,14,25 Repløcement
Replacement of equipment is also considered when loss or irreparable damage has occurred, The
following must be submitted with the prior authorization request:
 .   A copy of the police or fire rcport, when appropriate'
 .   r\ statement about the measures to bc taken in order to Prevent reoccurrence,
 .   Replacement equipment for clients who are birth through 20 years of age and do not meet the
     criieria in this handbook may be considered for prior authorization through ccP,

2,2,14.26 Procedure Codes and Llmltatlonsfor Mobility Alds

 Proce<lrtre   Cotlc       M¿rxirutrln Litrlit
 Cones
 E0100                     I per 5 years
 E0105                     I per 5 years
 Crutches
 4463s                     As needed
 E0l r0                    I   purchase every 5 years
 EOl   ll              ,I      purchase every 5 years; l-month rental
 E0112                     I purchase every        5 years;          l-month rental
 Eol l3                    I purchase every        5 years;          l-month rental
 E0l14                     I   purchase every 5 years; l-month rental
 E0l 16                    I   purchase every 5 years; l-month rental
 801s3                     I   purchase every 5 years
 Wolkers
                           As needed
 ^4636
 44637                     As needed
 E0130                     I purchase every        5 years;          l-month rental
 E0135                     I   purchase every 5 ycars; l-month rental
 E0l4l                 '   I purchase every        5 years;          l-mouth rental
 80r43                     I   purchase every 5 years; l-month rental
 E0144                     1   purchase every 5 years; l-month rental
 EOt47                   I purchase every 5 years; l-month rental
 E0148                 r 1 purchase every 5 years; l-month rental
 80149                   1 purchase every 5 years; l-month rental

 E0ls4                     I per 5 years
 E0155                     I per 5 years
 E.0157                    I per 5 years
 E0158                     I per 5 years
 80159                     I per 5 years
 Gaít Tralners
 E8001                 j I purchase        every   5 years




                                                                             D¡r'l-81
                                cpT oNLY - COPYRICHl   20   1   I ÄMERIC^N   M   EDICÀL ASS0C|A   flON           Rl(ìllTs l\tisÉÂvËD.
                                                                                                         ^1,t,
'l'llxAS MEDICAID PROVIDER PROCEDURES MANUAL: VOL'                       2




       l)nrccrlurcCode        NI¿txinrtrrlr Lir¡ri[
       Seating Assessments
       97Q01                  As needed
       97003                  As needed
       Wheelchai¡s
       Er050                I purchase every 5 years; l- month rental
       Er060              I t purchase every 5 years; 1-month rental
       81070              ' I purchasc every 5 years; l-month rental
       E1083              I I purchas. every 5 years; l-month re¡rtal
       81084              i       1 pu¡chase every 5 years;                  1   -month rental
       El 085             i I purchase                every 5 years; I -month rental

       81086                      I       purchase every 5 ycars; l-month rental
       81087                      I purchase every             5 ycars;      1-month rental
       8r088                      I purchase          every 5 years; l-month rental
       Ël 089                     I purchase          every 5 years; l-month rental

       Er 090                     t purchase          evcry 5 years; I-month rental

       8r092                      I purchase          every 5 years

       81093                      1       purchase every5 years; I-month rental
       81100                      I purchase every5 years; l-month rental
       Eill0                      I purchase every 5 years; l-month rental
       El130                      I purchasc every 5 years; l-month rental
       E1140                      I       purchase every 5 years; l-month rental
       El   150                   I purchase every 5 years; l-month rental
       El160                      I purchase every 5 years; l-month rental
        Et r61                    I       purchase every 5 years; l-month rcntal
        Er 170                    I purchasc           every 5 years; l-month rental
        El t7l                    I purchase           every 5 years; l-month rental
        Ett72                     I purchase           every 5 years; l-month rcntal

        El180                     I purchase           every 5 years; 1-month rental
        El 190                    I purchase every 5 years; l-month rental
        Elr95                     I purchase everySyears; l-month rental
        Il r 200                  I purchase every 5 years; l-month rental
        81220                     I per        5 years

        81229                     I per        5 years
                              '   I purchase every 5 years; l -month rental
        I.lt23l
        81232                 i I purchase             every 5 years; 1-month rental

        Í,1233
                              ' 1 purchase                l-month rental
                                                       everT 5 years;

        81234                 ¡ I purchase every 5 years; l-month rental
        E   t2t5                I purchase every 5 years; l-month rental
        81236                         I   purchase every 5 years; 1-month rental
        81237                         1   purchase every 5 years; l-month rental




                                                                                   DM-62
                                           CP1' ONLY - COPYRICHI'20I   I AM ERICAN MEDICAI, ASSOCIÁTION' ALL ¡IICI IIS RÙSJIÍIVSD
                               DURAìlLE tvtEDrC^L EQUIPMIINT, MEDICAL SUPPLIßS, AND NUTRITIONAL PRODUCTS HANDBOOK




Procc<lnt'e(ir¡tlc l\'li¡xilltul¡r l,iltlil
8t238              I purchase every 5 years; 1-rnonth rental
Lr239              I per 5 years
81240              I purchase every 5 years; l-month rental
8r250              I purchase every 5 years; l-month rental
81260                  I purchase every       5 years;   1-month rental
81270                  I   purchase every 5 years; I-month rental
81280                  I   purchase every 5 years; l-month rental
EI 2E5                 I   purchase every 5 years; l-rnorrth rental
EL29O                  I   purchase every 5 yearsi l-month rental
8t295                  I purchase every 5 years; l-month rental
Power Wheelchai¡s
K001 0                 I per   5 ycars

K00r   I               I   per 5 years
K0012                  I per   5 years

K08r3                  I   purchase every 5 years; 1-month rental
K08r4                I purchase every 5 years; I-month rental
K081s                I purchase every 5 years; l-month rental
K0816              : I purchase every 5 years; l-month rental
K0820              , I purchase every 5 years; l-mouth rental
K0821                  1   purchase every 5 years; l-nronth rental
KOB22                  I purchase every 5 years; 1-month rental
K0823                  I purchase every 5 years; 1-month rental
K0824                  1 purchase every 5 years; l-month rental

K0825              '  purchase cvery 5 years; l-month rental
                       1

K0826              , purchase every 5 years; l-month rental
                    I
K0827               I purchase every 5 years; 1-month rental
K0828               I purchase every 5 years; l-month rental
K0829                  1 pr.rrchase   every 5 years; l-month rental
K0835                  I purchase every 5 years; I -month rental
KOs36                  1   purchase every 5 years; l -month rcntal
K0837                I purchase every 5 years; l -month rental
K0838                I purchase every 5 yearsi l-month rental
K0839              ; I purchase every5 years; l-month rental
KOB40              ' I purchase every 5 years; I -month rental
KOB4l                I purchase every 5 yearsi I -month rental
KOB42                  I purchase every       5 years;   1-month rental
KOB43                  I purchase cvery       5 years;   1-month rental
                   I
K0848              , I purchase       evcry 5 years; l-month rental
K0849                  I prtrchase every      5 years;   l-month rcntal
K0tÌ50             , l put.hase everySyears; l-month rental


                                                              DM 8J
                           ctr|oNr.Y-[:oPYRfcHl'2011ÀMÙRlcÀNllÉDlc^l.Assoc]^lfoN^l.llìl(;l115R¡isIiRV[D
TEXAS MEDICAID PROVÍDER PROCEDURÍS MÂNUÂLI VOL.2




       l,roccrlrrrc(Ì¡tlc       Àl¡rxillttl¡tl I'illlil
       K0851                , I purchase every 5 years; l-month rental
       K0852                  I purchase every 5 years; 1-month rental
       K0853                i I purchase        every 5 years; 1-month rental
       K0854                 I       purchase every 5 years; 1-month rental
       K0855                ,I       purchase every 5 years; 1-month rental
       K08s6                 I       purchase every 5 years; i-month rental
       K0857                ;I       purchase every 5 years; l-month rental
       K0858                    1 purchase every 5 years; l-month           rental
       K0859                    I purchase every 5 years; l-month           rental
       K0860                    1 purchase every 5 years; l-month            rental
       K0861                    1 purchase every 5 years; l-month            rental
       K0862                    1    purchase every 5 years; 1-month rental
       K0863                L1       purchase every 5 years; 1-month rental
       K0864                I I purchase every 5 years; l-month rental
       K0868                  I purchase        cvery 5 years; 1-month rental
       K0869                  I purchase        every 5 years; 1-month rental
       K0870                , I purchase        every 5 years; 1-month rental
       K0871                | 1 purchate        every 5 years; l-month rental
       K0877                    1    purchase every 5 years; 1-month rental
       K0878                    I    purchase every 5 years; l-month rental
       K0879                '   I    purchase every 5 years; l-rnonth rental
       K0880                    I purchase       every 5 years;   l-month rental
       K0884                    I    purchase every 5 years; 1-month rental
       K088s                .I       purchase every 5 years; l-month rental
       K0886                    I purchase every 5 years; 1-month rental
       K0890                    I    purchase every 5 years; I -month rental
       K0891                    I purchase every5 years; l-month rental
       K0898                    I purchase every 5 years; 1-month rental
       K0899                    I purchase every 5 years; l-month rental
       Scooters
       87230
       K0800
       K0801
       K0802
       Wheelchair Parts
       E,0942                    I per year
       E,0944                   2 per ycar

       80945                    2 per year
       80950                     I   per year
       E0951                    2 per year




                                                                         Drt-¡4
                                      cpl'oNl.Y-coPYRlcHl20lIAMERICANMllDlCÁLÀS50Cl^flON   ALf RlcH'lsRESIìRV[D'
                                                                                                               HANDBOOK
                                       DURABLB MBDICAL EQUIPMENT, MEDICAL SUPPLIES, /A,ND NUTRITION^L PRODUCTS




['¡'oeetlute   (]rrtlu,\'l¿triltlrrtn Littlil
F,0952                      2 per yeat

E0955                       As needed
E;0957                      As needed
E0958                   r I per year
E0960                   I As needed

E0961                       2 per year

E0969                       1   per 5 years
80970                       I pair      per yeat
EO97r                       2 per year
80973                       2 per year
E:0974                      Zper year
80978                       I   per year
80980                       1 per year

E0981                       As needed
E0982                       As needed
80990                       2 per yeat
E,0992                      I   per year
80994                       2 per year
80995                       2 per year
E1002                       I per 5 years
E1003                       I per 5 years
8r004                       I per 5 years
E1005                       I per 5 years
81006                       I per 5 years
E1007                       I per 5 years
E1008                       I per 5 years
E1009                       1    per    5 years

81010                   , lperSyears
81011                   '   As needed
E1014                       I per 5 years
81015                       2 per year
81016                       2 per year
81017                       2 per year
E1018                       2 per year
81020                           I per   5 years

B,LO28                          I per 5 years
ELO29                           I per 5 years
8L296                           I per 5 years
 8t297                          I per 5 years
 Et298                          I per 5 years



                                                                       DM^å5
                                  CPT ONLY .   COPYRJOHTMII AMEI¡CAN MEOICAL ASSOCIATÍON. ALL RICHfi R!56RVED'
TEX.AS MBDICAID PROVIDBR PROCEDURES MANUAL: VOL' 2




       l)r'occtlut'e ( lotlc       i\'l¡rrirttt¡trr I i¡rril
       E,2201                      1   per 5 years
       F,2202                      1   per   5   years
       82203                       I per 5 years
       82204                       I per 5 years
       82205                       1   per 5 years
       82206                       1   per 5 years
       F,2207                      I purchase every            5 years

       82208                       I purchase every 5 Years
       82209                       I purchase every 5 years
       E22LO                       4per year
       E22LL                   ,2peryear
       822L2                       2 per yeat
       E2Zl3                       2 per year
       82214                       2 per year
       822t5                       2 per year
       82216                       2per year
       82217                   ¡2
                                  per year
                               t 2p"ry"u,
       822t8
       82219                   ,2peryeal
       F,2220                      2 per year
       F,222L                      2 per year

       82222                       2 per year
       E,2224                      2 per year
       82225                       2 per year
       82226                       2 per yeat
       82227                       I per 5 years
       82228                       1    per 5 years
       8229r                   'lperSyears
       82292                   r lper5years
       B,2293                    I per 5 years
       82294                       lperSyears
                               ,
       P,2300                    I per 5 years
       823t0                     I per 5 years
       E23LL                     I per 5 years
                               ' I purchase every              5 years;   l-rnonth rental
       F,2312
       82313                   I lPer5years
        82321                  i lpersyears
        82323                    I per 5 years
        82324                       lperSyears
                               ,
        ß2325                       1   per   5   years




                                                                              DM-8ó
                                        CPI'ONLY . COPYRIGHT2OI I AMERICAN MEDICAL ASSOCÍATION. ALL RICTITS RBSEßV¿D'
                                 DURABLE MBDICAL EQUIPMENT, MEDICAL SUPPLIES, AND NJTRITIONAL PRODUCTS I{ÂNDBOOK




82326                    I per 5 years
82327                    I per 5 years
82328                I lperSyears
82329                , lperSyears
E2330                  I per 5 years
82340                  I per 5 years
E,234L                 I per 5 years
E,2342               I lpersyears
82343                  I per 5 years
8235L                , lperSyears
82359                  I per 5 years
82368
                     'lperSyears
F,2369               i I perSyears
B,2370               I lperSyears
82373                I lperSyears
82374                , l perSyears
82375                1   lper5years
82376                ¡ lperSyears
82377                    I per   5   years
8238L                , 2per year
n2382                    2 pet year
82383                  2 per year
82384                r 2peryear

E2385                    2 per year
82386                    2 per year
82387                    2 per yeat
E2388                    2 per year
82389                t 2peryear
82390                ,2Peryeat
8239I                            year
                     ,2per
82392                    2 per yeat
                     'lperSyears
82394
82395                  I per 5 years
P,2396                 I per 5 years
Wheclch al¡/Preseu    rel?oe ltlonlng
E0r90                  I per 3 years
E26OI                  I per year
82602                    1   peryear
B.2603                   I   per year
82604                    I   per year




                                                                   Dt\4-A7
                             CEI' ONLY . COPYRICH'f 2¡I I Á.N{SRICAN MBDfCAL ASSOCIA'I]ON. ALL RIGHTS RESERVED.
TEXÂS MEDICAID PROVIDER PROCEDURES MANUALT VOL.                           2




       l)l'occrlttt'e   (lt¡<lc l\'laxinrrrlll Liltrit
       E,2605                  : I per year
       82606                   I I per year
       82607                   I I per year
       E2608                     I per year
       E,2609                  i I per year
       E26lt                     I per year
       826t2                         I per year
       F,26t3                        I per year
       82614                         I per year
       82615                         1   per year
       82676                         I   per year
       E,26t7                        t peryear
       826t9                         I per year
       Ë'2620                        I peryear
       F.26?t                        I per year
       82622                         I per year
       8262t                     '   I per year
       82624                     r I per year
       8262s                         I   per year
       Batteries
       8236r
       82363
       E?366
       82371
       K0733
       Safety Equipment
       80700                         2 per year
       E070s                         I per 5 years
       Lifte
       80628
       F,0629
       E0630
       E0635
       E0638                         I pcr 5 years
       E0641                         I   per 5 year.r
       Miecellaneous
       A'9900                        As needed
       8t399                         As needed
       K0108                         As needed
       K0739                         As needed




                                                                                      DM.88
                                          cp'f' oN t.Y ' coPYlilGH'r 201I AM ËlUC^N   MÍiDl C^   L                        LL RlCH',tS R8S8ßV   11|',.

                                                                                                     ^Ssc)Cl^1lON.   ^'
                                 DURABLE MEDICAL EQUTPMßNT, MEDICAL SUppLrES, AND NUTRITION.AL PRODUCTS                             II   NDBOOK




The following mobility aids are not a benefìt of Home Health Servlces;
 .    Feeder seats, floor sitters, corner chairs, and travel chairs are not considered medica\necessary
      devices

 .    Items lncluding but not limited to tire pumps, a color for a wheelchair, gloves, back packs, and flags
      are not considered medically necessary

 .    Mobile standers, power standing system on a wheeled mobiliry device
 .    Vehicle lifts and modifications
 .    Permanent ramps, vehicle ramps, and home modifications

 .    Stairwell lifts of any type
 .    Elevators or platform lifts of any type
 .    Patient lifts requiring attachment to walls, ceilings, or floors
 .    Chairs with incorporated seat lÍfts
 .    An attendant control, for safety, all power chairs are to lnclude                        a   stop switch
 .    Powered mobility device for use only outslde the home

Texas Medicaid does not reimburse separately for associated DME charges, including battery disposal
fees or state taxes, Reimbursement for associated charges ls included in the reímbursement for the
speciffc piece of equipment, White canes for the blind are considered self help adaptive aids and are not
a benefìt of Home Health Services.

        Note: Tilstepveligible      clients who haye ø medìcal need for services beyond the limits of this Home
                 Health Services benefit may be considered under CCP,
     Reþr to: Subsection 2.2.l.L, "Client Eligibiltty" in this handbook.
2,2,15 Nutrltional (Enteral) Products, 5upplles, and Equ¡Pment
Enteral nutritional products are those food products that are included in an enteral treatment protocol.
They serve as a therapeutic agent for health maintenance and are required to treat an identifìed medícal
condition, Nutritional products, suppltes, and equlpment may be a benefit when provided in the home
under Home Health Services.

2.2.15.1 EnJeral NuÛltlonal Products, Feedlng Pumps, and Feedlng Supplles
Enteral nutritional products and related feeding supplies and equipment are a benefìt through Home
Health Services for clients who are 2l years of age and older and require tube feeding as their primary
source of nutrition, The enteral product, suppl¡ or equipmentmustbepart of the medical POC outlined
and maintained by the treattng physician,

Enteral nutritional products may be relmbursed with the following procedure codes:

 l)l'oectlrtt'c ( lrrlcs
 84r00          84104 i 8'4149         84150            84152       r 84153           B'4L54             84155             B'4t57




                                                                    DM.89
                            CPT ONLY - COPYß.lGHT 201   I ¡\MÉt(lc^N MUDIC^L                   ¡tLL   RlcH'ls   RESÉRVßD
                                                                               ^ssoclAl'loN.
APPENDIX 6
                DEPARTMENT OFHEALTH & HUMAN SERVICES
                Health Care Financius Admlnlstration
                                                                                                           Center for Medic¡id and State Operatlons
                                                                                                                            7500 Securlty Boulevard
                                                                                                                         Baltlmore, MD 21244-1850
September    4,1998
Dear State Medicaid Director;
We have received a number of inquiries regarding coverage of medical equipment (ME) under the Mcdicaid program in light of the
rulìng of the United States Court of Appeals for the Second Cirouit in pefu¡þ9!!q49. In that case, the court examined the
circumstancçs under which a State may use a list to determine coverage of ME and offered its interpretation of HCFA's policies. We
have concluded that it would be helpful to provide States with interpretive guidance olariffing our polioies concerning ME coverage
under the Medicaid program and the use of lists in making such coverage determinations. This guidance is applicable only to ME
coverage policy,

As you know, the mandatory home health services benefÌt under the Medicaid program includes coverage of medical supplies,
equipment, and appliances suitable for use in thc home (42 C,F.R, $ 440.70(bX3)). A State may establish reæonable standards,
consistent with the objectives of the Medicaid statute, for determining the extent of suoh ooverage (42 U.S,C. $ 1396(aX17)) based on
such criteria as mcdical neoessity or utilization control (42 C,F,R. $ 440.230(d), In doing so, a State must ensure tl¡at the amount,
duration, and scope ofcoverage are reasonably suffioient to achieve the purpose ofthe service (42 C,F,R, $ 440.230(b)). Fulhermore,
a State may not impose arbiÍary limitations on mandatory services, suoh as home health sewices, based solely on diagnosis, type of
illness, or condition (42 C,F,R. $ a40,230(c)),
A State may develop    a list of pre-approved items of ME a^s an administrative convenience beoause such a list eliminates the need to
administer an extensive application process for each ME request submitted, An ME policy that provides no reasonable and meaningful
procedure for requesting items that do not appear on a State's pre-approved list, is inconsistent with the federal law discussed above, In
evaluating a request for an item of ME, a State may not use a "Medicaid population as a whole" test, which requires a benefioiary to
demonstrate that, absent coverage of the item requested, the needs of "most" Medicaid recipients will not be met. This test, in the ME
context, establíshes a standard that virtually no individual item of ME oan meet. Requiring a beneficiary to meet this test as a crite¡ion
for determining whether an item is covered, therefore, fails to provide a meaningful opportunity for seeking modifications of or
exceptions to a State's pre-approved list, Finally, the process for seekíng modifications or exceptions must be made available to all
benefioiaries and may not be limited to sub-classes ofthe population (e.9., benefioiaríes under the age of2l),
In light of this interpretation of the applioablç statute and regulations, a State will be in compliance with federal Medicaid
requirements only íÇ with respect to an índividual applioant's request for an item of ME, the following conditions âre meti
    .      'l-he process is timely and employs reasonable and specific criteria by which an individual item of ME will be judged for
           coverage under the State's homo health services benefit. These criteria must be sufficiently specific to permit a determination
           of whether an item of ME that does not appear on a State's pre-approved list hæ been arbitrarily excluded from coverage
           based solely on a diagnosis, type ofillness, or condition,

    '      The State's process and criteria,   as   well   as   the State's list ofpre-approved items, are made available to beneficiaries and the
           public,
    .      Beneficiaries are informed of their right, under 42 C.F,R. Part 431 Subpart E, to a fair hearing to determinc whether an
           adverse deoision is contrary to the law cited above.

We encourage you to be oognizant of the approval deoisions you make regarding items of ME that do not appear on a pre-approved
list, to ensure that the item of ME is covered for all beneficiaries who are similarly situated, In addition, your list of pre-approved
items of   ME should   be viewed as an evolving document that should be updated periodically to reflect available teohnology.

HCFA,s Regiolal Offices will be monitoring complianoe with the statute and regulations that are the subject of this guidance.               Any
questions concerning this letter or the ME benefit may be referred to Mary Jean Duckett of my staff at (410) 786-3294,
                                                                                                Sincerely,
                                                                                                    /sl
                                                                                                Sally K. Richardson
                                                                                                Director


All HCFA Regional Administrators
All HCFA Associate Regional Administrators for Medicaid                  and State Operations
Lee Partridge Anrerican Health Services Association
Joy 'vVilson National Conference of State Legislatures
bcc: HCFA Press Office CMSO Sçnior Staff
APPENDIX 7
Weittaw"
                                                                                                         Page I

Slip Copy, 2013 WL 6491075 (S'D,Tex.)
(CIte as: 2013 \ryL 6491073 (S.D,Tex.))




H                                                         ment, granting in part Plaintiffs' Motion for Sum-
Only the Westlaw citation is currently availablo,         mary Judgment and remanding the oase to TMHP
                                                          for further action, (Dkt. Nos, 33 & 34,) On Novem-
            Unitcd States District Court,                 ber 14, 2012, lhe Court entered a second Memor-
                    S,D. Texas,                           andum Opinion & Order awarding Plaintiffs
             Victoria Division.                           $158,331,60 in attorneys' fees and $6,847'63 in
 Bradley KOENNINC, Brian Martin, and Morgan               court costs based on thcir stafus as "prevailing
                  Ryals, Plaintiffs,                      parties" on summary judgment, (Dkt. No' 43') In an
                                                          October 4, 2Ol3 per curium opinion, fhe United
Thomas SUEHS, in his offioial capacity as Execuþ          States Court of Appeals for the Fifth Circuit dis-
 ive Commissioncr, Texas Health and Human Ser-            missed PlaintifTi' claims on appeal as moot and va-
         vices Commission, Defondant,                     cated the Court's September 18,2012 Opinion and
                                                          Judgment in "the public interest," finding that the
             Civil Action No, V-11-6.                     Court's decision "oontain[ed] meaningful errors,"
                   Dec.9,2073,                            (Dkt. No. 50 at 3-4,) Defendant now tnovos thç
                                                          Court to vacate its November 14, 2012 Otóet
Maureen O'Contrell, Southern Disability Law Cen-
                                                          awarding Plaintiffs their attorneys' fees and court
ter, Austin, TX, for Plaintiff,
                                                          costs,
Drew L, Haruis, Office of the Attorney General,
                                                          II. Legal St¡ndard
Jonathan Franklin Mitchell, Douglas Dcan Geyscr',
                                                               Federal Rulc ofCivil    Proccdure 60(b) provides
Texas Attorney General, Austin, TX, for Defend-
                                                          that a district oourl. may relieve a party from a final
ant.
                                                          judgment or order that is "based on an earlier judg-
                                                           ment that has been reversed or vacated," FED' R'
               OPINION & ORDER                             CIV, P, 60(bX5), Numerous courts, inoluding the
JOHN D, RAINEY, Senior District Judge'                    Fifth Circuit, have "ma[d]c it clear that FED,        R'
   *1 Pending before the Court is Dofendant's             CIV. P. 60(b) (5) is an appropríate method for sook-
Rule 60(b)(5) Motion for Relief from AftçrneYs'
                                             ,.' Ex-      ing relief from a judgment of attorney's fees once
Fecs (Dkt, No. 49), frled by Kyle L. Jauek,^              the underlying judgrnent has bçen reversed," Am,
ecutive C<¡mmissioner of the Texas Flcalth and Hu-        Really 'fvvs¡, Inc. v. Matisse Purtners, L'L'C., 2003
man Services Commission (THHSC)'               acting     WL 231'75440, +3 n. 5 (N.D,Tex, Dec.15, 2003)
through the Texas Medicaid and Healthoare Part-           (citing Flou,er¡' v, S, Reg'l Physlcìan Settts', Inc',
nership (TMHP) (hereinafTer "I)efendant"),                286 F.3d 798, S0l-02 (5th Cir'2002); CaL Med'
Plaintiffs Bradley Koenniug, Brian Martin, and            Ass'n v, Shalala,207 F.3d 575,577-79 (gth
Morgan Ryals ("Plaintiffs") have responded to De'         Cir.2000), Mother Goo¡e Nursery Sch          , lnc'   v,

fendant's motion, (Dkt. No, 53 ')                         Sendak, 710 F.2d 668,676 (7th Cir'1985)),

         ItNl. Kyle L. Janek  succeeded Thomas             III.Analysts
         Suehs as Executive Commissioner of TH-                Despite Plaintiffs' assertions to the contrary,
         HSC on Septembor 1,2012.                          thc Fifth Circuit did not vacate the Court's Opinion
                                                           and Judgment because they were moot' The Fiflh
[. Background                                              Circuit vacated the Court's Opinion and Judgment
    On September 18, 2072', tho Court issucd its           becauso they were e¡Toneous.
Memorandum Opinion & Order and Final Judg-




                            @2}l4Thomson Routers, No Claim to Orig, US Gov' Works,
                                                                                    Paga2
Slip Copy, 2013 WL 6491075 (S.D.Tex.)
(Cite rs: 2013 \ryL 6491015 (S.D.Tex.))




    Because the Court's award of attorneys' fees
was based on an edoneous judgment that has since
been vacatod by the Fifth Circuit, the feo award
must be vacated pursuant to Rtile 60(bX5). ,See
Flowers, 286 F,3d at 802 (Vacatur of a fee award
was appropriate under Rulc 60(b)(5) where the
'þart of the judgment that formed the basis of the
granting of attorney's fees was vacaled."): Clul.
Med, Ass'n,207 F,3d at 577.-78 (lVhere an award of
attorncys' fses is based on the morits of the judg-
mont, "reversal of the merits removes the underpin-
nings of the fee award."); t5B CHARLES ALAN
wRrcHT ET AL, FED, PRAC, & PROC, fi 391s.6
(If no appeal is taken from an award of attorney's
feos, "some means must be found to avoid the un-
soemly spectacle of enforcing a fee award based on
ajudgmenf that has been reversed."),

IY. Concluslon
    *2 For the reasons set forth abovc, Defendant's
Rule 60(bX5) Motion for Relief from Attornoysl
Fees (Dkt, No. 49) is GRANTED, and the Court's
November 14, 2012 Memorandum Opinion & Or'
dcr awarding Plaintiffs $158,331,60 in attornoys'
fees and 56,847,63 in court costs (Dkt, No' 43) is
VACATED.

    It is so ORDERED.

S.D,Tex,,20l3.
Koenning v. Suehs
Slip Copy, 2013 WL 6491075 (S.D.Tex,)

END OF DOCUMENT




                         @2014 Thomson Reuters, No Claim to Orig. US Gov' Vy'orks
APPENDIX 8
Westiaw
                                                                                                              Page I
752F.3d 627,Med & Med GD (CCH) P 304,943
(Cite as: 752F,3d 621¡




H                                                                      360k1ti.79 k. Social seourity ancl publio
                                                           welfare. Most Cited Cases
         United States Court of Appeals,                       Disabled Medicaid recipients had implied
                  Fifth Cirouit.                           private cause of action under Supremacy Clause
 Scott DETGEN, by His Next Friend, L,C, DET-               against Texas Health and Human Sorvices Commis-
GEN; Juanita Barrazo, by Her Next F-riond, Yolan-          sionor to challonging categorical donial of their ro-
    da   Villareal; Brandon Doycl; Joshua Vargas,          quest for benefits for installation of ceiling lift de-
                  Plainti ffs-Appcl lants,                 signed to assist them in transfer to and from bed,
                          v.                               bath, and other su¡faces, U,S,C.A. Const. Art, 6, cl.
Dr, Kyle JANEK, in His Official Capacity as Exoc-          2.
utive Commissionor', Tgxas Health and Human Ser-
      vices Commission, Defendant-Appellee'                J2lActlon       13   þ3
                    No, l3-10396,                          l3 Action
                    May 16,2014,                                I   3l Grounds and Conditions Precedent
                                                                       I3k3 k. Statutory rights of aotion, Most Citod
Background: Disablcd Medicaid recípients filed             Cases
suit under $ 1983 against Texas Health and Human                Normally a cause of action must be found in a
Servicos Commissioner, challenging categorioal             statute; like substantivc fcdcral law itself, privatc
denial oftheir reques! for benofits for installation of    rights of action to enforce federal law must be cre-
ceiling lift designed to assist thenr in transfer to and   ated by Congress,
from bed, bath, and other surfaoes' The United
Statcs District Court for the Northern District of         [3[ States 366       þ18.3
Texas, A. Joe Fish, Senior District Judgo, 945
                                                           360 Stotçs
fi,Supp.2d 74ó, granted summary iudgment for de-
                                                                3ó01   Political Status and Relations
fendant, Plaintiffs appealed.
                                                                      360l(B) Federal Supremacy; Preemption
Holdings: The Court of Appeals, Jetry ts. Srnith,                         360k18.3 k, Preemption in general. Most
Circuit Judge, held that:                                  Cited Cases
(l) plaintiffs had implied private cause of action
under Supremacy Clatrse and
                                                           United States 393         e:82(2)
(2) categorical exclusion on ceiling lifts based on
                                                           393 United States
availability of cost-offective alternatives could not           393VI Fiscal Matters
mean that state had dcnied medically neccssary                    393k82 Disbttrsoments in General
device,                                                               393k82(2) k. Aid to state and local agen-
                                                           cies in gcneral, Most Citcd Cases
     Affinned.
                                                                Supremacy Clausc confers an implicd private
                    West Headnotcs                         cause of action to enforce all Spending Clause le-
                                                           gislation by bringing preemption actions. U.S,C,A.
H   States 36n   @18.79                                     Const. Art. 6, cl.2.

360 States                                                  [4lActlon 13 þ3
    3601 Political Status and Relations
         360I(B) Federal Supremacy; Preemption              13 Action




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                                                                                                                    Page2
7 52 F,3d 627,Med& Med GD (CCH) P 304,943

(Clte asr 152F,3d627)




      131 Crounds and    Conditions Precedent                       ment and were medically necessary, statutory lan-
           13k3 k. Statutory rights of action, Most Citecl          guage did not plainly prohibit categorical exclu-
Casos                                                               sions and reasonableness standard in thc text likely
                                                                    supported imposition of reasonablc categorical ex-
Health t98H         æ507                                            clusions. Medicaid Act, $ 1902(a)(17),42 U.S,C'A'
                                                                    {i 1396a(aXl 7); 42 C.F,R. (i 440.230(b),
l98l{ Health
   I 98Hlll Government Assistance                                   f7l He¡lth 193¡¡     @473
             l98HII(B) Medical Assistance in      General;
Medicaid                                                            l98H Health
               198Hk506 Judicial Review; Actions                       1    98HIIl Government Assistance
                    198Hk507 k. In general. Most Cited                          198HIll(B) Medical Assistance in General;
Cases                                                               Medicaid
     When a state violates thc federal requirements                              198Hk472 Beneftts and Services Covered
of the Mcdicaid Act, a privatc plaintiff can sue the                                  l9SHk473 k, In genoral. Mos[ Cited
state to cnforce those requirements, Medioaid Act,                  Cases
                                                                            States have broad discretion to adopt standards
$ 1902(a),42 U.S,C.A, $ 1396a(a)'
                                                                    for dcfermining the extent of medical assistence;
[5]Ilcalth      l98Hæ462                                            the standards only have to be "reasonable" and
                                                                    "consistent with the objectives" of the Act, Medi-
l98H Health                                                         caid Act, $ 1902(aXl7), 42 U'S,C'A. ç
     SHIII Govemment Assistanoe
      I9
                                                                    1396a(aX17); 42 c.F,R. $ 440.230(b).
        198HlI1(B) Medical Assistance in General;
Medicaid                                                            f8l Health 193¡¡     Q-478
         198Hk462 k, State participation in federal
programs, Most Citocl Cases                                         l98H Health
          Although paficipation     in   the Medicaid pro-              I   98HIll Covemment Assistance
gram is entirely optional, onoe a State elects to par-                          198HIII(B) Medical Assistance in Oeneral;
tioipato, it must conrply wifh the requirements of                  Medicaid
Title XIX, Medioaid Act, $ 1902(a)' 42 U,S'C'4. $                                l98iík472 Benefits and Services Covered
I   396a(a).                                                                             198Hk478 k, Medical equiPment;
                                                                    wheelchairs, Most Cited Cases
16l   Health 193¡¡    {æ478                                             Medicaid permits a stete to adopt a list of pre-
                                                                    approved dcvices for convenience and a list of oat-
l98tl      Health                                                   egorioal oxclusions if based on reasonable groullds,
      I   98HIII Government Assistance                              such as the availability of more cost-effoctive al-
             l98HIl1(B) Metlical Assisfance in General;             temativeó, and permits a beneficiary to demonstrato
Medicaid                                                            nced for an item on neither list, Medicaid Act, $
               lgïflkÍ72 Benefits   and Servioes Covcrod
                                                                    1902(a)(17), 42 U,S.c,A, $ I396a(a)(17); 42 C.F'R.
                       198Hk478 k' Medical     equiPment;
                                                                     $ 440,230(b),
wheelchairs. Most Cited Cascs
    Categorioal excluslon on ceiling lifts based on                  lgf Health 1991¡@473
availability of cost-effective alternatives could not
mean that state had denied medically necessary                       198H Health
device under Medicaid; even if ceiling lifts fell                       I 98HlIl Govemrnent Assistonce

within state's defînition of durable medical equip-                          l98I-IIII(B) Medical Assistance in General;




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                                                                                                            Page   3

752F.3d627,Med & Med GD (CCH) P 304,943
(Clte as: 752F,3d 627)




Medicaid                                                     which are classified as durable medical equ¡pment
             l98Ilk472 Benefits and Services Covered         ("DME"). Such lifts are expensive but would allow
                   198Hk473 k, In general. Most Citcd        the disablcd beneftciaries to move with straps at-
Cascs                                                        tached to oeilings. Texas denied covorsge under a
   Under Medicaid, a state cannot deny a treat-              categorical exclusion in the state's implementing
ment solely based on diagnosis, type of illness, or          Medicaid rcgulations. The district court granted
condition,                                                   summary judgmenl for the state on the ground thet,
                                                             so long as federal monies were not available to re-
[0]   Health r98H    æ473                                    imburse it, it did not need to provide the lifts.

198H Health                                                      Thc Conter for Medicare and Medicaid Ser-
   I 98HI ll Governmçnt Assistance                           vicçs ("CMS") has since offered             guidanco,
        198HIfI(B) Medical Assistance in General;            howÇver, that federal financial participation would
Medicaid                                                     be available, In addition to appealing the judgment,
             198Hk472 Benefits and Services Covered          the plaintiffs movo this cour( lo vacate it for reoon-
                  198Hk473 k. In general' Mosl. Cited        sideration, In thc appeal, they maintain that the
Cascs                                                        stafe's categorical exclusions are preempted by fed-
      Under Medicaid, a state may not limit a treat-         eral law or otherwise violate their procedural due-
ment that     is generally available fbr   non-medical       process rights. Texas responds that categorical ex-
reasons.                                                     clusions are not preempted and, rnoreover, that a
                                                             state can ncver violate the Medicaid Act ¿nd that
*629 Maureen À, O'Connell, Southern Disability
                                                             the plaintiffs do nof have a private cause of action
Law Center, Austin, 'I'X, Lewis Alan Colinker,               to enforco it,
Esq,, Assistive Technology Law Center, Ithaoa,
NY, for Plaintiffs-APPellants'                                   Under binding precedent, these plaintiffs have
                                                             an impliod private cause of action under the Su-
Jon¿than F.  Mitchell, Solicitor General, Douglas D'         premacy Clause to pursue this challenge, \Èr'e addi-
Goyser, Esq., Office   of the Solicitor General, for         tionally note that the state must comply with the re-
the State of Texas, Erika M, Kane, Assistant Attor-          quirements of the Medicaid Act, but the Act does
ney General, Office of the Attorney General, Gen-            not preempt the statots categorical exclusions. We
eral Litigation Division, Austin, TX, for Defend-            therefore affirm the summary judgment and deny
ant-Appellec.                                                the motion to vacate.

                                                                                         I.
Appeal from thc United States f)istriot Court for the
                                                                  [l][2]  The plaintiffs assert that they have an
Northern Distriot of Texas,
                                                             implied cause of action to pursue thcir claims, Nor-
Before JONES, SMITI{, and OWEN, Circuit                      mally a ceuse of action must be found in a statute:
Judges.                                                      "Like substantive federal law itself, private rights
                                                             of action to onforce federal law must be created by
                                                             Congress," Ák¿xander v, Sttndoval, 532 U,S' 2'15,
JERRY E, SMITH, Circuit Judge:                               286, l2l S.Ct, l5l I, 149 L.EtJ.zd 517 (2001), Thc
    The four plaintiffs are Medicaid bcnefltciaries          plaintiffs' theory of an implied cause of action does
with near total physioal disabilities' requiring con-        not depend on any rights-oreating language in the
stant personal assistancc and care, On the advice    of      Medicaid Act; rethgr, they rcly on the *630 Su-
professionals, they asked Texas's Health and Hu-             premacy cluurr,FNl The Supreme court recently
man Services Commission to pay for ceiling lifts,            dodged the question-incidentally in a case in-




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                                                                                                                  Page 4

752F.3d 627,Med & Med GD (CCH) P 304,943
(Cite asr 752FJd 6271




volving the Medicaid Act-whether the Suprcmacy                             Act).
Clause provides & cause of action itself in the ab-
                                                                           FN4, The Tenth Circuit has only recently
sence of a stattltory private cause of action, S¿e
Dougla.r v, Indep, Livìn¡¡ Ctr, of S. Cal., Ittct',
                                                                           come  to the opposite conclusion. See
                                                    -                      Planned Parenthood ttf Kan. & Micl-Mct. t'.
u,s.-, 132 s,cr. 1204,182 L.Ed.2d l0l (2012)                               Moser,747 F.3d 814 (lOth Cir.2014)
                                                                           (holding that the Supremacy Clausc does
         FNl. Plaintiffs rely on 42 U'S'C, $       1983                    not providc a privotc cause of nction).
         for their due-process claims.
                                                                                              II.
    [3] In light of the Court's failure in Douglas to                  [a] The stete mâkes the alternative ergument
hold to the contrary, this appeal is govemed by                   that cven if plaintiffs have a cause of action' it is
Planned Parenlhood o.l'Houston & Sttuthcasl Texas                 impossible for a state to violate the Medicaid Act'
v. Sanchez (" PPHST "), 403 F,3d 324,330-35 (5th                  The state analogizcs the Act to legislation tying
Ci1,2005). There this court held that the Supremacy               highway funds to a ccrtain maximum spcod limit: A
Ctause confers an implied private cause of action to              state mey lawfully establish a higher limit, but it
enforcc all SpendingoQ\quse legislation by bringing               will forgo funds, Thus, the state claims' here it may
preemption aclions,   '''- The state is correct lhat              lawñ:lly pass nonconforming Medicaid legislation
since then, the Suprerne Court has held that certain              at the risk of losing federal funds, but not at the risk
fedçral statutes contain no private right of action,              of private lawsuits. It rcasons that unlikc other le-
FN3                                                               gislation that can preempt state law, this fodcral law
      b.rt that was true when PPHST was decided.
See, e,g,, Sand<¡val, 532 U'S at 288-93, l2l S.Ct.                does not include language such as "shall," com-
151 l. In Sandoval, Hctpe, arrd Brunner, it appears               manding a state to perform a celain function.
that the plaintiffs never made the alternative claim
that if the statutç does not prQv-ide a cause of action,             [5] Thc provision on which plaintiffs rely,
                                                                  however, does contain suçh languagç: "A State plan
the Supremacy Claure do.r'FN4
                                                                   for medical     assistance must ,., include reasonable
         FN2, PPfl'yI, 403 F,3d ot 333 ("Whilc                     standards for         determining eligibility..'."    42

         [prior cascs] do not directly address the is'             U,S.C. $ 13964(a) (emphasis added). Additionally,
         sue of whether a valid causs of action oxis-              several courts, including the Supreme Court, have
         ted [under the Supremacy Clause], we as-                  held that oncç a stato accepts federal funding, it
         sumçd that one did. Today we hold that                    must conform to the requiremçnts of the relevant
         one does. Other circuits have similarly re-               federal law, including fhe Medioaid Act: "Although
         cognized an impliod cause of action to                    participation in the Medicaid program is entirely
         bring proemption claims seeking injunctive                optional, once a State elccts to participate, it must
         and declaratory relief even absent an expli-              comply with the requirements of Title XlX," Harris
         cit statutory claim'"),                                   v, Mc:Rae,448 U,S, 291 ,301, 100 S.Ct. 2671, 65
                                                                   L.B1.2.J 7tl4 (1980); see also llope Med. Grp' fitr
         FN3. See, e,g,, Ilorne v. Flores, 557 U'S.                Ilomen v. Edwords, 63 F'3d 418, 421                  (5th
         433,456 n. 6, 129 S.Ct. 2579, 174 L,Etl.2d                Cir.l995),
         406 (finding no private cause of aotion to
                                                                        *631 Intleed, a contrary ruling would contradict
         enforce the No Child Loft tsehind Act);
         Brunner v, Ohio Republìcan Pctrty, 555                    PPHST, which held that there is an implicd privatc
         U.S, 5, 6, t29 S,Cl, 5, 172 L.Ed.2d 4                     oôuse of action under the Supremacy Clause to en-
         (2008) (suggesting no private oause of ac-                force all Spending Clause legislation. Under the
         tion to enforçe thc Help America Vofe                     slate's theory, the holding in PPHST would have




                             @ 2Ot4 Thomson Reuters,       No Claim to Orig' US Gov, lvVorks'
                                                                                                             Page   5

752F3d627,Mad & Med CD (CCH) P 304,943
(Clte asr 752F,3d627)-




been totally unnecessary because it is impossible                    and withhold approval or funding   if   ncces-

for a state to violate a Spending Clause statute, so a               sary.").
private canse of action does plaintiffs no good, tüe
                                                                                    III,
agree that if no private cause of action oxisted, if
                                                               [6]Regarding the merits, the basis for this
would be up to the federal government to decide
                                                          challengc is the requirement that "[a] State plan for
how to enforcc compliance, and it could choose to
                                                          medical assistance must,,. include ¡easonable
withhold funds, That, indeed, is how at least two
                                                          standards .,. for detcrmining eligibility for and thc
Suprcme JQgurt Justices would interpret the Medi-
                                                          extent of medical assistance under the plan '.,
caid Act,rN) But this court in PPIíST,403 F,3d at
                                                          which are consistent with the objectives of this
332 & n. 34, spocifically discounted thoso two
                                                          subchapter," 42 U.S,C. $ 1396a(aXl7), and the im-
views in coming to its conclusion. Although it is
                                                          plementing regulation requiring that each provided
quite possible, as Texas maintains, that no state has
                                                          sewice "must be sufficient in amount, duration, ancl
made such an argument, PPHST necessarily (even
                                                          scope to roasonably aohieve its purpose," 42 C.F'R.
if implicitly) directs that when a state violates the
federal requirements of the Medicaid Act, a private        {i 440,230(b). 'Ihe plaintiffs rely on this statutory
                                                           language, an agçncy guidance letter, and precedent
plaintiff can suc the statc to enforce those require-
                                                           to contend that the   staters categorical exclusion is
ments.
                                                           not a "reasonable standard,"
         IrN5, ,See Phann, Research &. MJrs' o/'Am'
         v, Walsh, 538 U.S. 644, 675, 123 S'Ct'                 [?] States have broad cliscrotion to implement
                                                           the Medicaid Act: "This [statutory] languago con-
          1855, 155 L.Ed.2d tt89 (2003) (Scalia, J.,
                                                           fers broad discretion on the Statos to adopt stand-
         concurring in the judgment) ("I would re-
         ject petitioner's sta[utory claim on      the     ards for determining the extent of medical assist-
         ground that thc remedy for the State's fail-
                                                           ance, requiring only that such standards              be
                                                           'rcasonable' and 'consistent with the objectives' of
         ure to comply with the obligations it has
                                                           the Aqt." Beal v. Doe, 432 U.S. 438, 444,97 S,Ct'
         agreed [o undertake under the Medicaid
                                                           236(t, 53 L.Ed.zd 464 (1917).In combination with
         Act is set forth in the Act itself: termina-
                                                           the presumption against preemption and its con-
         tion of filnding by the Secretary of the De-
                                                           comitant clear-statement rule, the discrotion con-
         partmcnt of Health and Human Services,
                                                           fcrrcd in Doe leaves little doubt that we must affirm
         Petitioner must seek enforcement of the
                                                           the summary judgment if lhe statutory language
         Msdicaid sonditions by that authority.,',"
                                                           does not plainly prohibit categorical exclusions.
         (internal citations omitted)); íd, al 682, 123
          S.Cl, 1855 (Thomas, J,, concurring in the             As we have noted, the statute requires that "[a]
         judgment) ("[T]he Secretary's mandate             State plan for medical assistance must ,'. include
          from Congross is to conduct, with greater        reasonable standards ,., for detcrmining oligibílity
         oxpertise a¡rd resources than courts, tho in-     for and thc oxtont of medical assistance under the
         quiry into whether fstate law] upsets the         plan," Additionally, the Medicaid Aof requires a
         balance contemplated by the Medicaid Act.         state prograrn to cover "honre health services," 42
         Congress' delegation to the agency to per-        U,S.C, {i t396a(a)(10)(D), which *632 include
         form this cornplex balancing task pre-            "[m]edical supplies, equipment, and appliances
         cludes federal-court intervention on the          suitable for use in the home," 42 C.F.lì, {i
         basis of obstacle pre-emption-it does not         440,70(bX3). But, as plaintiffs acknowledge, the
         bar the Secretary from pcrforming his duty        Act does not identifl the specific cquipment that a
         to adjudge whother [the State's law] upsets       state must offer, and the scopc of offerings is gov-
         the balancc the Medicaid Act contemplates         erned by thc "reasonableness" standard in the stat-




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                                                                                                          Page 6
752F,3d 627,Med & Mcd GD (CCH) P 304,943
(Clte as: 752F.3d6271




ute, Plaintiffs maintain that the categorical exclu-                is over $1,000. 1 Tex. Admin. Code          g

sion of oeiling lifts is unreasonable because ceiling               354. 103 1(bX2). But Texas's Medicaid Pro-
lifts fall within the state's defini|ion of DME and                 vider Procorlurcs Manual explains that not
arc medically necessary,                                            all DME will be considered reimbursable
                                                                    as a home health service; rathor, the DME
     The state calegorically excludes such lifts frorn              must meet a list of critcria after which it
coverage for a number of reasons. Although the dis-                 "may" be a oovered bencfit. Section
trict court spccifically relicd on the lack of federal                     of the manual speoifioally ox-
                                                                    2.2.14.27
financial assistance for its ruling-a ruling that is                cludes many DMEs, including home modi-
undermined by subsoquent CMS guidance to the                        fications.
contrary-the state also flatly excludes such lifts
because they require structural modifications to res-          Plaintiffs rely heavily on a 1998 guidance letter
idences. Texas also excludes from the definition of        from CMS's predecessor (lhe " DeSario letter") to
DME, in the home services category, ramps, elevat-         support their assertions. The letter explains that a
ors, stairwell lifts, and platform lifts, Further, the     state mey "develop a list of pre-approved itoms of
state explains in its brief that it provides more cost-    fmedical equípment] as an administrative conveni-
effective altornatives such as "ttansfer boards,           ence," but a "policy that providcs no reasonable and
freestanding track (or 'Niklas') lifts, transfer chair     meaningful prooedure for requesting items that do
systems for use with the bath or commode, and              not appear on a Stato's nre-lpfrçoved list [ ] is in-
manually or electronically operated floor lifts (also      consistent with federal law,"   ' '''
known as 'Hoyer' lifts)," The ceiling lifts at issue
here would cost the state bçtween $15,000 and                       FN7, Letter from Sally K. Riohardson, Dir-
$20,000, and çven the insurers Aotna and Cigna                      eator, Ctr, for Medicaid and State Opera-
deny coverage for such equipment.                                   tions, Dep't of Health & ÉIuman Servs. to
                                                                    State Medicaid Directors (Sept, 4, 1998),
    It is hardly unreasonable for a state to ex-                    avaílable at httpl/ tlownloads, cms, gov/
clude-even oategorically-any medical device                         cmsgov/ archived- downloads/ SMDL/
whose purpose c&n be served by a more cost-                         downloads/ SMD 090498, pdf.
effectivc mcthod. Not only has Texas not violated
the plain language of fhe statute, but also the reas-          [8] Deference to the guidance letter is not an is-
onableness standard   in the text likely supports    its   sue, because the state has not violated its require-
imposition   of  reasonable categorioal exclusions,        ments: The letter says only that if a state has a pro-
The plaintiffs' notion that it would be unreasonable       approved list, there must be some way to prove
for a state not to provido particular equipment wifå-      need for items not on it. This letter says nothing
ìn lts definitioz of DME sounds plausible, except          about the possibility of a stato's deciding that some
that the statg- gqn choose by de/ìnilìon to exclude        items shall be on a "never approved*633 list," that
ceiling lifts,FN6 Moreover, a categorical exclusion        is, that some items may be categorically cxcluded,
based on the availability of cost-effoctive alter¡at-      It would be perfectly consistent with federal law
ivcs cannot mean that the state has denierl a medic-       and this letter to adopt   a list of pre-approved
ally necessary devico, cven if tho statute did impose      dcviccs for convenience and a list ofcategorical ex-
such a standard.                                           clusions ifbased on reasonable grounds, such as the
                                                           availability of more cost-effective alternatives, and
         FN6. The state defines DME at a high              to permit a benoficiary to demonstrate noed for an
         level of generality, saying that it includes      item on neither list, In short, nothing i¡the DeSario
         equipment with a projected term of use of         letter prohibits categorical exclusions, which might
         more than one year or   if   the reimbursement    even be eminently rçasonable and thus consistent




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                                                                                                            PageT
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(Cite as: 752F.3d 627)




with the starutory language,                              vices are coverod under the State plan," which sug-
                                                          gosts that the states must bo able to offer some bé-
     [9][l01 Contrary to the plaintiffs' assertions, no   nefits to shildren that they do not have to offer
decision of this court prohibits crtegorical exclu-       adults,
sions, and none of the cases they cite is on point,
Our decision in Rush v. Parham, 625 lr,2d 1150,                We need not read Frecl C. as plaintiffs wish,
1157 n, 12 (5th Cir, 1980), merely stands for the         There the distriot oourt had held that a device
proposition that a state cannot deny a treatment          provided for children under twenty-one must also
solely based on "diagnosis, type of illness, or con-      bo provided to adults as medically necessary, On
dition," which is an explioit requirement of the          the second appeal, we affirmed bocause the district
Code of Federal Regulations, As îor Hope Medìcal          court was governed by thc "law of tho case" as es-
Group,'an important distinction is thaf Íhere      the    tablished by a previous short per curiam opinion,
trcatment in question was generally available, but        Fred C. v, Texa,ç Ilealth & Human Services Com-
the state had limited its availability for non-medical    nr[ssion, I t7 F.3d l4l6 (5th Cir,l997), In that first
reasons. See lIo¡te Med, Gr¡t,, 63 F',3d aI 427. That     appeal the court had remanded for a determination
situation is thus distinguishable from a catogorical      of whether the plaintiff was even eligible for home
exçlusion of an item, which might be basecl on a          services; we implied that if that requirement was
reasonable ground suoh as the availability of morc        met, he would be eligible, The court never actually
cost-effective alternatives.                              addressed the merits of the district court's age-
                                                          based reasouing, and it never held (although it may
     The plaintiffs rely most heavily on Fred C. v,       have assumed) as thc distric.t court did that because
Texa,s Heallh & I'Iuman Services Commissi<nt,988          the device was provided for childron under twenty-
t'.Supp, 1032 (W.D,Tex,l997), al|d, 167 F.3d 537          one, it must also be provided to adults,
(5th Cir.l998), Plaintiffs aver that that case stands
for tho proposition that if the statc's Medicaid pro-         Moreovor, wc lster noted that, although a state
gram provides a medical service or devioe for an in-      must provide certain benefits to children under
dividual under age twenty-one, it must also provide       twenty-one, it need not provide those same benefits
that service, if medically ncc€ssary, to a persoo         to adults:
over that age. Such an outcome would benefit the
                                                              *634 Further, the   {i I 39rid(a)(7) catogory of
plaintiffs because the state provides coiling lifts to
[hose younger than twenty-one.
                                                            home health çere services is an optional, not a
                                                            mandatory, c tegory of medical assistance, $
    As thc stete contends here, however, even if            1396a(a)(10)(A). Thus, tho state was not required
Fred C. could be read fbr that proposition, it would        to provide this category of care and services to
be absurd: The states are requiredby federal law to         individuals over the age of twenty-one af all,.,.
provide any and all services to individuals uncler          CMSrs approval of the effective exclusion indic-
tì¡/enty-one if medically neccssary, "whether or not        ates only that the exclusion may bc an appropri-
such services arc covered under the State plan," 42         ate limitation on the soope of the home health
U.S.C, |j 1396d(rX5), But if states do so and thçre-        care benefit as    it   applies   to   recipients over
forç must also so provide for anyone over twenty-           twenty-onc years of age, It does not express or
one, the special federal rule for the provision of          imply that CMS has approved an exclusion ap-
more expansive benefits to children would be unne-          plicable to EPSDT beneflrts [for childrcn].
cessary because the standards for children and the
standards for adults would be collapsed into the              S.D. ex rel. Dickson v. Ho<tcl, 391 F.3d 581,
same standard, The plaintiffs' reading would render       597 (sth Cir.2004), Therefore, plaintiffs' reading of
superfluous the language "whether or not such ser-        Fred C, is not how this court has subsequontly in-




                           @2014 Thomson Reuters, No Claim to Orig, US Gov, Works,
                                                                                             Pago   8

752F.3d627,Med & Med GD (CCH) P 3M,943
(Clte rr: 752F,sd627,




terpreted tho law rospecting Medicaid, and it   i¡ not
how we construo it now.

   Beoauso plaintiffs havs not shown an ontitle-
ment to the ooiling lifts, thoir duo piocess olaims
åil    well, Tho summary judgmantis AFFIRMED,
      os
and the motion to vacate is DENIED.

C.4.5 (Tex,),2014.
Detgen ex rol, Detgon v. Janek
752F.3d627,Mod & Med GD (CCH) P 304,943

END OFDOCUMENT




                         @ 2014 Thomson Rzuters.         No Claim to Orig. US Gov. lVorks'
APPENDIX 9
                                                                    ,li+l&lJ83J;u,.+.._.#-



                            No. D-l-GN-14-000381                    A
                                                                    A


LINDA PUGLISI                          $            IN THE DISTzuCT COURT
    Plaintiff,                         $
                                       $
vs.                                    $         OF TRAVIS COUNTY, TEXAS
                                       $
TEXAS HEALTH AND HUMAN                 $
SERVICES COMMISSION,                   $
      Defendant.                       $            2OOth   JUDICIAL DISTRICT


                   ORDER DENYING MOTION TO DISMISS

      Defendant's Motion to Dismiss Plaintiffs Petition for Judicial Review came

before the Court on November 12, 2014. Upon consideration of the pleadings and

the argument of counsel, this Court has determined that the motion should be

denied.

      IT IS THEREFORE ORDERED that Defendant's Motion to Dismiss is
herein DENIED

      Signed on this 14th day of November,20l4




                                           A^^'! 0)
                                           Gisela D. Triana
                                                               ?w*
                                           Judge Presiding
APPENDIX 10
a




                                               c OPY
                                          No, D-l-GN-14-000381
                                                                                    Filed tn Th e D¡strict
                                                                                     of        c
                                                                                                           Court
                                                                                                         Texas
                                                                                                              4
     LINDA PUGLISI,                                    $                  IN         D
                Plaintiff,                             $
                                                       $
     vs.                                                              OF TRAVIS COLINTY, TEXAS
                                                       $
                                                       $
     TEXAS FIEALTH AND HUMAN                           $
     SERVICES COMMISSION,                              $
               Defendant.                              $                    53'd   JUDICIAL DISTRICT

                                           FINAL JUDGMENT

               On Novembet 12,2014,the Court heard oral argument on the merits of Plaintiffs appeal
     ofan administrative hearing decision issuecl by the Texas Health and Human Services
     Commission ("the Commission") in on Durable Meclical Equipment ("DME") in Appeal No.
     1639469, issued on November     22,2013, and the agency's administrative review of the fair
     hearing decision, issued on January 14,2014, Plaintiff is a 27 year old Medicaid beneficiary
    who sustained quadriplegia as the result of a Cl-4 spinal cord injury during a surgical procedure
    in 2011, and it is undisputed that she now suffers from severe limitations and relatecl health
    issues for which her treating medical proviclers have sought to address with the DME.

           The Court has considered the administrative record, the briefìng, the arguments of
    counsel and applicable law, and now finds that Plaintiffs appeal is meritoriol¡s and Defendant,s
    administrative decision shoulcl be reversed. The Court finds that the Commission's decision fails
    to comply with the controlling and applicable federal and state law, and thus is            arbitrary,
    capriciotts, and unreasonable. The Court further finds that the Commission's decision to
                                                                                             deny
    Medicaid coverage for the DME custom power wheelchair with an integrated standing f'eature as
    recommended by her treating meclical providers, because Plaintiff has not demonstrated medical
    necessity,      is also not supported by   substantial evidence and Plaintiff has established her
    entitlement based on medical necessity under that applicable   law.   Because this DME item must
    receive prior authorized from Texas Medicaid, the Court reverses the administrative decision       of
    the Texas Health and Hltman Services Comnrission on plior authorization presented.




    No. D-l-GN-14-000381
    Final Judgmcnt; ptgc I ol2
È




                IT IS THEREFORE ORDERED that this matter is             hereby REVERSED ?nd
     REMANDED back to the Texas Health and Human Services Commission for further
     proceedings consistent with decision, includin g any other required determinations related
                                                                                                to
     Medicare and Medicaid issues not curently before the Court.
                All   taxable court costs are assessed against the party who incuned them. This judgment
     frnally disposes of all parties and allclaims in the entire suit and is appealable,
                Signed this l5th day of January,20l5,



                                                                        c)
                                                             Gisela D. Triana
                                                             Jr.rdge Presiding
                                                             200rh District Court




    No. D-l-CN-14-000J81
    Final Judgmentl page 2   of2
APPENDIX 11
                                                                   DME MAC
                                                                  Jurisdiction C
     a.¡taaa.aaa                 aaaltaa       a¡    aat
     alacaa        aa.aaato.tt             I   l ttta




o   CGS
    A CELERIAN GROUP        cOMPANY        G) ?-O14 Côpyright, CGS Admrnrstrators,   LLC
                                                                                                        rvts
                                                                                           crNTEtas FoR MEDIC^RE & MÉDlC¡lO SÉßVICES



                                                                                            EXHIBIT                            2
t



    Table         of           tents

    DME MAC Jurisdiction C Supplier Manual
    Table of Contents


    1,          Introduction

                   Welcome
                   .   CGS's Role as a DME MAC
                   .   What is Medicare?
                   r   What is DME?
                   .   Deductible and Coinsurance
                   .   Eligibility
                   '   Medicare Health lnsurance Claim Number (HICN)
                   .   The Medicare Card
                   .   Termination of Enrollment
                   '   Medicare Advantage Plans
                   .   Other Government lnsurance Plans
                   '   Privacy Actol 1974 and HIPPA Privacy Rules
                   .   Freedom of lnformation Act (FOIA)

    2.      Supplier Enrollment

                   Overview
                   .  National Provider ldentifier (NPl)
                   .  National Supplier Clearinghouse (NSc)
                   .  Supplier Standards
                   .   Reenrollment
                   .   Change of lnformation
                   '   Participating/Nonparticipating
                   .   Site Visits
                   .   Do Not Forward
                   .   Directory of Medicare Suppliers
                   .   Change of Ownership
                   '   NSC Resources
                   .   Supplier Audit and Compliance Unit (SACU)

    3.      Supplfer Documentation
                   .   General lnformation
                   .   Definition of Physician
                   .   Prescription (Orders) Requirements
                   .   Documentation in the Patient's Medical Record
                   .   SignatureRequirements
                   .   Refills of DMEPOS ltems Provided on a Recurring Basis



    Fall 2014                      DME MAC Jurisdiction C Supplier Manual      Page   1
Table                       fs

              '   BenefìciaryAuthorization
              .   Proof of Delivery (POD)
              '   Advance Beneficiary Notice (ABN)
              '   Miscellaneous Documentation lssues
              .   Evidence of Medical Necessity: Power Mobility Devices (PMD)
              .   Comprehensive Error Rate Testing (CERT)

4.         Certificates of Medical Necessity (CMNs)

                  Certificates of Medical Necessity (CMNs) and DME MAC lnformation Forms (DlFs)
                  CMN and DIF Completion lnstructions
                  CMNs as Orders and Claim Submission
                  Oxygen CMNs
                  CMN Common Scenarios

5.         DMEPOS Fee Schedule Categories

              lntroduction
              .    lnexpensive o¡ Other Routinely Purchased DME (lRP)
              .    ltems Requiring Frequent and Substantial Servicing
              .    Certain Customized ltems
              .    Other Prosthetic and Orthotic Devices
              '   Capped Rental ltems
              .   Oxygen
              .   Medicare Advantage Plan Beneficiaries Transferring to Fee-For-Service Medicare
              '   Supplies and Accessories Used with Beneficiary-Owned Equipment
              .   Repairs, Maintenance, and Replacement
              .   DMEPOS Competitive Bidding

6.     Claim Submission

              lntroduction
              .    Mandatory Claim Filing
              .    Assignment Agreement
              .    Administrative Simplification Compliance Act (ASCA)
              .    CMS-1500 Claim Form
              .    Guidelines for Filing Paper Claims
              .   Claim Completion lnskuctions
              .   Claim Filing Jurisdiction
              .   Time Limit for Filing Claims
              .   Clean Claims - Payment Floor and Ceiling
              .   Electronic Funds Transfer (EFT)
              '   Place of Service
              '   Consolidated Billing




Fall2014                       DME MAC Jurisdic'tion C Supplier Manual                        Page2
 Table of Con
               .     DMEPOS and an lnpatient Stay
               .     DMEPOS and Hospice
               .     Upgrades
               .     PWK(Paperwork)Segment
               .     Electronic Submission of Medical Documentation (esMD)

7.         Crossover Claims

              lntroduction
              .      Coordination of Benefits Agreement
              '      Medigap

8.         Electronic Data lnterchange (EDl)

              lntroduction
              .    Benefits of EDI
              '      ASCA
              .      Transmitting Claims to Other DME MACs
              .      Additional Electronic Options (CSl/BE and ERNs)
              '      Additionallnformation

9.         Coverage and MedicalPolicy

              lntroduction
              .    DMEPOS Benefit Categories
              .    Medical Review Program
              .    Medical Policies
              .    Advance Determination of Medicare Coverage (ADMC) for Wheelchairs
              .    Prior Authorization of Power Mobility Devices (PMD)

10.        Pricing

              lntroduction
              .    Fee Schedules
              .    Reasonable Charges
              .    Drug Pricing
              .    Single Payment Amount
              .      lndividualConsideration

11.        Medicare Secondary PaYer (MSP)

              lntroduction
              .    Employer Sponsored Group Health Plan Coverage
              .      AccidenUlnjurylnsurance
              .      Other Government-Sponsored Health Plans
              .      Electronic Billing of MSP Claims



Fall2014                          DME MAC Jurisdiction C Supplier Manual               Page 3
Table of Contents
                  Medicare Secondary Claim Filing Tips
                  MSP on Capped Rental ltems
              I   MSP Payment Calculation
                  MSP Overpayment Refunds
                  Benefits Coordination & Recovery Center (BCRC)

12.        Overpayments

                  Overpayments and Refunds
                  Overpayment Offsets
                  Refenal of Delinquent Debt
                  Extended Repayment Plan
              a   Overpayment Appeals

13.        lnqulries, Reopenlngs, and Appeals

                  Telephone lnquiries
                  Written lnquiries
                  myCGS-The Jurisdiction C Web Portal
                  Provider Outreach and Education (POE) Department
                  Reopenings for Minor Errors and Omíssions
                  Appeals
                  Redeterminations
                  Reconsiderations
                  Administrative Law Judge (ALJ)
                  Departmental Appeals Board Review
                  Federal Court Review
                  Documentation in the Appeals Process

14.        Fraud and Abuse

              lntroduction
              . Zone Program lntegrity Contractors (ZPlCs)
              . Defining Fraud and Abuse
              . Procedures for Handling Fraud and Abuse Situations
              . Protect Yourself from Fraud
              . ZPIC Contact lnformation
15.        Resources

              lntroduction
              .   Durable Medical Equipment Medicare Administrative Contractors (DME MACs)
              '   Jurisdiction C Resources
              .   Additional Resources
              .   Web Resources



Fall2O14                      DME MAC Jurisdic'tion C Supplier Manual                        Page 4
Table        of
16.        Coding

              .     The Pricing, Data Analysis and Coding (PDAC)Contractor
              .     Levelll HCPCS Codes
              .     Coding Jurisdiction
              '     Modifiers

17.        System OutPuts

              !     Claim Development Procedures
                    Medicare Summary Notice (MSN)
              !     Medicare Remittance Notice (MRN)
              ¡     Biller Purged Claim Report
                    ANSI Codes

18.        Acronyms and Abbrevlations


Appendix A - Level ll HCPCS Codes




Fall2O14                         DME [/tAC Jurisdiction C Supplier Manual    Page 5
Introdu           n                                                                   Chaoter       I
Chapter 1 Gontents
Welcome
1. CGS's Role as a DME MAC
2. What is Medicare?
3, What is DME?
4. Deductible and Coinsul'ance
5, Eligibility
6. Meclicare Health lnsurance Claim Number (HICN)
7. The Medicare Card
L Termination of Enrollment
9. Medicare Advantage Plans
10. Other Government lnsurance Plans
11. Privacy Act of 1974 and HIPAA Privacy Rules
12. Freedom of Information Act (FOIA)



Welcome
Welcome to the Durable Medical Equipment Medicare Administrative Contractor(DME MÔC)
Ju¡sdiction C Supplier Manual. This manual is provided forsuppliers of Durable Medical Equipment,
prosthetics, Orthòiics, and Supplies (DMEPOS) who serve beneficiaries in Jurisdiction C. This
manual contains an overview òi important and useful information for DMEPOS suppliers regarding
the Medicare program, lt is the first resource that you should use for Medicare billing questions.

The Supp/ler Manualis updated on a quarterly basis. lf yo¡_!r1v^e.!illed a claim to Jurisdiction C in
t11Jpãü'f à months, then'you willautomatically receìve à CD-nOfU containing our_quarterly-Suppller
 Manuatupdates, as well ás the most recent isiue of our quarterly newsletter, the DME MAC lnsider.

                            Manualrevision, all text that has been added or revised from the previous
                           nual is shown in red text. All unchanged text is shown in black text.
                           revisions do not necessarily denote a change in policy, Some
additions/revisions are added solely to provide greater clarity and understanding'

To stay up-to-date on the most recent Medicare news, you s.hould.be sure to subscribe to our
ListSeñ¿, ine CCS electronic mailing list, ListServ gives you immediate access to the latest
                                                                                             Medicare
information, including: Medicare pu-blications, important updates, educational workshops, and
medical review information. To join the ListServ, visit our website at http://www.cgsmedicare.com.

lnternet-only Manual (lOM) Referencea

Most of the information in this manual is derived from the Centers for Medicare and Medicaid



components, providers, contractors, Medicare Ad
use the lOMs to administer CMS programs. They
information for the general public.




                             DME MAC Jurisdiction C Supplier Manual                             Page    1
Fall2014
lntroduction                                                                                           Chapter               1

ln order to give you an easy way to cross-reference the information in the IOM with the information in
the DME MAC Jurisdiction C Supplier Manual, you will find references to the applicable IOM
sections throughout each chapter of the Supplier Manual. The references are listed beneath title
headings in the following format:
CMS Menual System, Publlcatlon Numbor, Publlcatlon lVame, Chapþr' gsectlon

You can access the lOMs at the following website: http://www,cms,ctov/Requlations-and-
Guidance/Guidance/Manuals/lnternet-Only-Manuals-lOMs.html      (refer to Chapter 15 in this manual
for more information about the CMS  Manual System).



1. CGS's Role as a DME MAC
The Centers for Medicare & Medicaid Services (CMS), the government agency which oversees the
Medicare program, selected four companies to process DMEPOS claims for the Medicare program.
These companies function as DME MACs Each DME MAC is responsible for processing DMEPOS
claims for beneficiaries residing in their specific jurisdiction.

CGS is the DME MAC for Jurisdiction C. Jurisdiction C includes Alabama, Arkansas, Colorado,
Florida, Georgia, Louisiana, Mississippi, New Mexico, North Carolina, Oklahoma, Puerto Rico, South
Carolina, Tennessee, Texas, U,S Virgin lslands, Virginia, and WestVirginia.

Our role is strictly that of processing and paying Medicare claims in accordance to the Social
Security Act, Me'dicare Modemization Act health insurance regulations and laws, and the Centers
for Medicare & Medicaid Services rulings.

For the administration of the DME MAC Jurisdiction C contract, our offices are located in Nashville,
Tennessee.



2. What ls Medicare?
CMS Manual System, Pub.   100{1, Medtcare Generat tnformatton, Ellglbtllty and Enttttemenl Manual, Chaqleî f '   SS10-f   0'l E
f 0.3


The Medicare program is a federal health insurance program for:
    .      People age 65 or older,

    .      People under age 65 with certain disabilities, and

    .   People of all ages with End-Stage Renal Disease (permanent kidney failure requiring dialysis
        or a kidney transplant),

Medicare is run by the Centers for Medícare & Medicaid Services (CMS) of the United States
Department of Health and Human Services (DHHS).

Medicare is divided into several different parts which pay for certain types of services or situations.
Hosp1al insurance (Medicare Part A) helps pay for inpatient hospital care, inpatient care in a skilled
nursing facility, home health care, and hospice care. Medical insurance (Medicare Part B) helps pay
for meãically necessary services by a physician, outpatient hospital services, home health care, and
a number oi other medical services and supplies that are not covered by Part A, including durable
medical equipment, prosthetics, orthotics, and supplies (DMEPOS) for home use,




Fall2014                          DME MAC Jurisdiction C Supplier Manual                                             Page 2
Introduction                                                                                          Chaoter I

Prescription Drug Coverage (Medicare Part D), effective January 1, 2006, pays for prescription
drugs for Medicare-eligible beneficiaries who are enrolled in a Medicare prescription drug plan.
Meðicare prescription drug plans are available in every part of the country and all plans cover both
brand name and generic drugs,

All topics covered in this manual refer to Medicare Part B DMEPOS.



3. What ls DME?
CMS Manual 3y3t€m, Pub. lO0-2, Medlcaro Benoflt Pollcy i/lanual, chapter   l6' $110'f

Durable medical equípment is equipment which:

    .      Can withstand repeated use,

    .      ls primarily and customarily used to serve a medical purpose,

    .      Generally is not useful to a person in the absence of an illness or injury, and

           ls appropriate for use in the home,

All requirements of the definition must be met before an item can be considered to be durable
medical equipment.



4. Deductible and Goinsurance
CMS Manual Systom, Pub. 100.{tl, Medlcare Generat lnformation, Ettglbllity and Entitlemenl Manuar, Ch¡pter 3' 5S20.1'2

Medicare beneficiaries must meet a deductible each calendar year before payment can be made by
Medicare Parl B. The beneficiary may be billed for any amount applied to the deductible on both
assigned and nonassigned claims. The deductible is applied to approved charges only-(the-
dedüctible is not appliðd to any non-covered charge), The Medicare Part B deductible for 2014is
$147. The deductible is subject to change every calendat yeat'

ln order for Medicare Part B to reimburse for covered medical seryices, a beneficiary must satisfy
the annual deductible regardless of when during the calendar year he or she became eligible.

NOTE: Expenses are allocated to the deductible in the order in which claims are received and
processed by Medicare, not necessarily in order of date of service.

Our lnteractive Voice Response (lVR) Unit (which can be reached at 866-238-9650) is available to
determine current deductible status fór a beneficiary. Please see Chapter 13 of this manual for more
information about the lVR,

After the Medicare Part B deductible has been satis,fied for the calendar year, Medicare reimburses
B0 percent of the amount allowed by Medicare for an item/service. The remaining 20 percent of the
allowed amount is the responsibilityof the beneficiary, This amount is referred to as the coinsurance.




Fall2Ol4                          DME MAC Jurisdiction C Supplier Manual                                          Page 3
Introduction                                                                                       Chaoter         I
5. Eligibility
CMS Manual System, Pub. 100{1, Medlcarø General lnfomatlon, El¡glbillty and Entitlement Manual, Chaplet 2

Medicare eligibility is determined by the Social Securíty Administration (SSA). An individual may
become entitled through Social Security based on his or her own earnings or that of a spouse,
parent, or child, Anyone who becomes entitled to premium-free hospital insurance (Medicare Part A)
is automatically enrolled in medical insurance (Medicare Part B), except in Puerto Rico, Medicare
Part B is a voluntary program for which the insured must pay a monthly premium; therefore,
individuals who do iròt wãnt coverage may refuse Medicare Part B enrollment. The effective date of
Medicare Part B coverage depends on the month in which enrollment takes place. An individual's
Medicare Part B coverage ends when the individual requests disenrollment, does not pay premiums,
dies, or, for individuals less than 65 years of age, when hospital insurance entitlement ends.
Beneficiaries who have Medicare Part A (Hospital lnsurance) and/or Medicare Part B (Medical
lnsurance) are also eligible for Medicare Part D (Prescription Drug Coverage).

You should check the Medicare cards of your beneficiaries at least once every year because the
Health lnsurance Claim Numbers (HlCNs) and suffixes can change according to the beneficiary's
record of entitlement. This is especially important in the case of female beneficiaries, since their
name and HICN can change according to marital status'
you may contact the DME MAC Jurisdiction C IVR at 1,866.238.9650 to determine eligibility. Please
see Chapter 13 of this manual for more information about the lVR.

Aged lnsureds (65 Years of age)
An aged insured is a person 65 years of age or older who is eligible for monthly Social Security or
Railróad Retirement iash benefiis or equivalent federal government benefìts, Premium-free hospital
insurance becomes effective on the first of the month in which the individual reaches age 65 if he or
she applies for the benefit within six months of his/her birth month. Age 65 is considered to be
reacn'e'O on the day before the 65th birthday. For instance, an individual born on August'1st reaches
age 65 on July 31st, and thus hospital insurance vould be effective July 1st,

Some aged individuals do not qualify for premium-free hospital insurance due to insufficient Social
Security-Quarters of Coverage but may purchase Medicare Part A coverage, The indivídual must be
a United States resident and either a citizen or an alien lawfully admitted for permanent residence
who has lived in the United States continuously for five years or more. This person must also enroll
(or already be enrolled) in Supplementary Medical lnsurance (SMl). This type of enrollee must pay a
monthly piemium tor Oòth Medicare Part A and Medicare Part B coverage. lf the premium is not paid
within a specified period, then coverage is terminated,

Under Age 65 with Permanent Kidney Failure (End Stage Renal Disease)
Eligibility for coverage of a permanent kidney failure patient begins the third month after the month in
wh'ích a'course of renal dialysis begins, unless the individual receives a kidney transplant on or
before the third month. ln tirat case, eligibility begins the month the individual is admitted as an
inpatient to a hospital for procedures in preparation for,      or                            ney transplant,
provided that the transplant surgery takes place within        the                            When the
transplant is delayed more than two months after the          prep                            eligibility begins
with the second month prior to the month of transplant,

Also, Medicare entitlement can begin in the first month of a course of dialysis if the individual
participates in a self-dialysis training program in a Medicare-approved facility prior to the.third month
äfter tñe course of dialysis. The individual is expected to complete the training and self-dialyze
thereafter. lf a beneficiary is entitled to Medicare only because of permanent kidney failure, Medicare




Fall2O14                         DME MAC Jurisdiction C Supplier Manual                                      Page 4
                                                                                                     c
protection will end 12 months after dialysis ends or 36 months after the month of a kidney transplant.
lf the transplant fails during or after that 36-month period and the beneficiary again resumes
maintenance dialysis or receives another transplant, Medicare coverage will continue or be
reinstated immediately without any waiting period,

Under Age 65 and Permanently Disabled
Medicare entitlement for the disabled begins with the 25th month after an individual has been eligible
for Social Security Disability benefits. Subseguently, if the beneficiary is no longer entitled to Social
Security disability payments, then his or her Medicare coverage will generally continue for one more
calendar month after he/she is sent notlce of the termination of the disability payments.



6. Medicare Health lnsurance Claim Number (HICN)
Ctrfs Manual System, Pub, 100-01, Medicara General lnfomalton, Ellglblllty and En0ilement Manuar, ChapÛor 2, SS50'2'
õ0.4,2

The Health lnsurance Claim Number (HICN), also known as the Medicare number, serves as the
beneficiary's identification number for Medicare entitlement. The HICN is shown on the beneficiary's
Medicare card.

The general format of the Medicare number is XXX-XX-XXXX preceded or followed by a suffix. Some
Railróad Retirement Board (RRB) beneficiaries may have a number with a difierent format (see
"Other Government lnsurance Plans" below for additional information)'

NOTE: The HICN may be different than the beneficiary's Social Security number,

The HICN is probably the most important piece of information you can have about your Medicare
patient, Claims cannot be paid if the HICN is missing or incorrect.

ÃdOit¡onat information about the HICN, including valid HICN prefixes and suffixes, can be found in
the CMS lnternet-Only Manual (lOM), Pub, 100-01 , Medicare General lnformation, Eligibility and
                                                     -
Entittement Manua!, Óhapter 2, Section 50.2 50.4.2. You can find the IOM on the CMS website at

lOMs.html.



7. The Medicare Card
A Medicare card is issued to every person who is entitled to Medicare benefits. This card identifies
the Medicare benefìciary and includes the following information:
 I .       Name (exactly as it appears on the Social Security records)
 j .       Medicare Health lnsurance Claim Number (HICN)
 : .       Beginning date of Medicare entitlement for hospital (Part A) and/or medical (Part B)
           lnsurance

    I      Sex

    .    A place for the beneficiary's signature




Fall2014                          DME MAC Jurisdiction C Supplier Manual                                         Page 5
lntroduc                                                                                                 Chapter        1


The following is an example of a Medicare card


  Tho p€lcnfs r¡Emo and hoa[n lru¡¡ranc¿
  clÉlm numbû{ nlJd bú shotvn ofi sll
  Mcdcaro chlme oil@ ss üoy ¡ro slrown                            s(F,¡¡! t¡t(l.ñtY
  o¡ the peüort! csrd - lndudhg tho le{ltr.                                           ^ct
                                               l*tða ÍJ{.f(}tir
                                                     JANE CIOG
                                                       r,l4f,R
                                               EIr;,¡¡({.¡r                   hr
                                                   r?t{5-ôtûi                         tEHAt¡
                                -Þ-
  tho tr{'lodoil tot¡r @ð{ìl ñæ ÍE slìowr'l
  heie. IIOTE: ll yout prllonfe heultt
                                               fçfPrì?9rç                     itñrìÌlt!ìlí:
                                                                                               lJtn,   EfbdvË dÊtc(Ê,
  ¡rr8umnæ card sho$E tM fio/Et!6 hts
                                               HofffnÆ" tNtt.E^l{cÊ          ft¡tt Al
  ,troßdÞl lnaranæ bonolts onlf yoúr           láçÞEÁl        l¡v5ulùA rcF   lP  ír Ff
  ssrvlcæ CAM{Of bo púb hr by Modtcwo.                                          i..(,i,.
                                               æ.

Note: More recent cards íssued by CMS show the 1-8OO-Medicare number (see example.below). lf
the beneficiary has a card that shows something different (such as the example above), it is still valid
and can be used to get medical care.




             1€0GMEDICARE (r
  NAME OF BENEFICIAFìY
      JÂTE   DOE
  MEOICAFE CLAIM NUMBEFI


  6   ENIITLËO
                                              07-01-1986
                                              07.01 -1 s86


  HEFE




We recommend that you obtain a copy of the Medicare card and incorporate it in the beneficiary's
file for accuracy of claim submissions.



8. Terminat¡on of Enrollment
There are times when a beneficiary's enrollment in Medicare may terminate for various reasons.
This may not be reflected on the Medicare card, lf you receive a denialfrom Medicare indicating no
entitlemånt for the dates of service on the claim, ,here are several items you can check:
 I 1, Did you copy the correct and complete HICN from the Medicare card?
   2, ls this the correct date of service? Be sure to check the year,
      3   Has the beneficiary's enrollment been terminated? Check with the beneficiary to veriff-this
          possibility. The DME MAC generally does not have any details regarding the reason of
          termination of a beneficiary's enrollment,




Fall2014                              DME MAC Judsdiction C Supplier Manual                                         Page 6
                                                                                                     Chaoter          I
9. Medicare Advantage Plans
CMS Manual Syatem, Pub, 100{1, Medlcare Genenl lnformatlon, Eliglblllty and Entltlement M¡nual' Chapter 2, 560

As an alternative to the traditional fee-for-service Medicare plan, beneficiaries have the option of
enrolling in a Medicare Advantage Plan. Medicare Advantage Plans include Medicare Health
Maintenãnce Organizations (HMOs), Preferred Provider Organizations (PPOs), Medicare Special
Needs Plans, anà Medicare Private Fee-for-Service Plans. Claims for these plans must be filed with
the contractor administering that particular plan, Do not file claims for Medicare Advantage Plans to
CGS.



10, Other Government lnsurance Plans
Railroad Retirement Board (RRB/
Claims for DMEPOS items for beneficiaries eligible for Railroad Retirement Board (RRB) benefits
are also processed by CGS for beneficiaries in Jurisdiction C, lt is easy to recognize a beneficiary
covered by RRB by looking at the HICN. The RRB HICN will have one or more letters in front of the
numbers. For all other Medicare numbers, the lette(s) follow the numbers.

Example:4555-'11-2222 = RRB orWA123456 = RRB, 555-11-22224 = Medicare

United Mine Workers Association (UMWA)
There is no easily recognizable number for beneficiaries with coverage by the United Mine Workers
Association (UMWA), The beneficiary should be able to advise if his/her coverage is through UMWA.
ln the event a claim is fìled to our office for UMWA, the claim will be returned to you to resubmit to
the UMWA for processing. A statement to that effect will be printed on your Medicare Remittance
Advice. A statement will ãlso be printed on the beneficiary's Medicare Summary Notice (MSN).
These notices will let you and the beneficiary know that future claims should be filed with the
appropriate office. Coirtact lnformation for the Uf\fl /A can be found in Chapter 15 of this Supplier
Manual.




11. Privacy Act of             ß74 and HIPAA Privacy Rules
CMS Manual Systãm, Pub, 100-01, Medlcare Gonørat lnlo¡ma'lon, Ettgtblllty and Entltlement Manøal, Chepter 6' SS10 A 190

The purpose of the Privacy Act and HIPAA Privacy Rules is to provide safeguards for individuals
agaiñst an invasion of privacy. Federal agencies are required to permit individuals to:

     1. Determine what records        pertaining to him/her are collected, used, or disseminated by such
 I        agencies.

 : l.     Prevent records pertaining to him/her from being used for another purpose without their
          consent.
 I

     3,   Gain access to information pertaining to him/her in federal agency records, and to correct
 ,        such records when aPProPriate.

Disclosure of information about a beneficiary to any party other than the beneficiary (or his/her legal
guardian) him/herself is prohibited without the beneficiary's (or legal guardian's) explicit written
authorization. This authorization may be in any form, but it must:




Fall2014                          DME MAC Jurisdiction C Supplier Manual                                         Page 7
lntroduction                                                                                 Chapter          I
       .   lnclude the beneficiary's name, and HICN;

       .   Specify the individual, organizational unit, class of individuals or organizational units who
           may make the disclosure;

       r   Specify the individual, organizational unit, class of individuals or organizational units to which
           the information may be disclosed;

       .   Specify the records, information, or types of information that may be disclosed;

       .   A description of the purpose of the requested use or disclosure (if the beneficiary does not
           want to provide a statement of the purpose, he/she can describe the use as "at the request
           of the individual");

       .   lndicate whether the authorization is for a one-time disclosure, or give an expiration date or
           event that relates to the individual or the purpose of the use or disclosure (e.9,, for the
           duration of the beneficiary's enrollment in the health plan);

       .   Be signed and dated by the beneficiary or his/her authorized representative. lf signed by the
           representative, a description of the representative's authority to act for the individual must
           also be provided;

       .   A statement describing the individual's right to revoke the authorization along with a
           description of the process to revoke the authorization;

       .   A statement describing the inability to condition treatment, payment, enrollment, or eligibili$
           for benefits on whether or not the beneficiary signs the authorization;

       .   A statement informing the beneficiary that information disclosed pursuant to the authorízation
           may be redisclosed by the recipient and may no longer be protected.

Blanket consents to disclose all of the beneficiary's records to unspecified individuals or
organizations will not be honored. The consent must specity the item/service for which the disclosure
is iequested and should only include those items/seruices prescribed by the beneficiary's physician.




12. Freedom of lnformation Act (FOIA)
The Freedom of lnformation Act (FOIA) requires that most records in custody of CMS (and its
contractors) be made available to the general public when requested. The FOIA does not apply to
materials specifically prepared for public distribution or sale, e,9,, press releases, speeches, fact
sheets, listings (names and business addresses) of Medicaid and/or Medicare providers, information
brochures, and any publication which has been assigned a CMS, Health and Human Services,
Government Printing Office, or National Technical lnformation Service (NTIS) publication number,
etc.

The FOIA covers records (paper or electronic/tape) only, lt does not cover information which may be
requested and imparted orally or in writing. For example, requests for dates, addresses, figures such
as the Medicare enrollment for a state, which need not be responded to wíth the production of a
document are not FOIA requests. Such requests should be directed to the proper public inquiries
office.




Fal 2A14                        DME MAC Jurisdiction Ç Supplier Manual                                 Page   I
lntroduction                                                                             Chaoter I

FOIA examples:
    .      Existing records (handwritten, printed, or electronic)
    .      Excerpts from the Medicare manuals, Code of Federal Regulations, supplier manuals, and
           newsletters
    .      Supplier name lists
    .      Fee schedules
    .      Cod¡ng reports and letters
    .      Claim data reports

Non-FOIA examples:
    a      Requests for dates
    a      Addresses
    a      Figures (i.e,, Medicare enrollment for a state)
    a      General questions about coverage or policy interpretation
    a      HCPCS coding information

All FOIA requests are subject to fees for search, review, and copy/duplication, Before submitting
your request, you may want to see if the information can be obtained from our website,
http://www.coémedicare.com, FOIA requests must be submitted in writing and should provide details
that will help us identify and find the records being requested. lf there is insufficient information, we
will ask you for more. lnclude your name and telephone numbe(s) to help us reach you if we have
questions.

Please send FOIA requests to the following address:

GGS
Attn: DME MAC Freedom of lnformation Coordinator
2 Vantage Way
Nashville, TN 37228




Fall2014                         DME MAC Jurisdiction C Supplier Manual                            Page 9
Þ




    Coveraoe a nd Medical Policv                                                                      c hanter I
    Chapter 9 Contents
    lntroduction
    1. DMEPOS Benefit Categories
    2. Medical Review Progranr
    3.   Medical Policies
    4. Advance Determination of Medicare Coverage (ADMC) for Wheelchairs
    5. Prior Authorization of Power Mobility Equipment (PMD)

    lntroduction
    ln this chapter, you will find information regarding DMEPOS benefit categories, the DME MAC
    Medical Review Department, medical policies, Advance Determination of Medicare Coverage
    (ADMC) process, and Prior Authorization of Power Mobility Equipment. ln order for any item to be
    òovered by the DME MAC, it must fall into one of the benefit categories defined below. The medical
    policies used by the DME MAC to make coverage determinations may be either national or local.
    The national policies can be found on the CMS website in the Medicare NationalCoverage
    Determinations Manualand in the Medicare Benefit Policy Manual. Both of these manuals can be
    viewed at
    lOMs.html. The local policies can be found in Local Coverage Determinations (LCDs),rrvhich are
    avaiøOle at htto://www.cqsrrledicare.com/ic/coveraqe/LCDinfo.ilml. See the "Medical Policies"
    section below for more specific information.



    1. DMEPOS Benefit Gategories
    CMS Manual Syetem, Pub. 100{2, Medlcare Benefrt Poltcy Manuar, Chapter 1q5560'6.1'60.6 &ll0'140
    CMS Manual Slstem, pub. 100{3, Medlcere Naltonal Determlnatlons Manual, Chapter l, $180

    All Medicare Part B covered services processed by the DME MAC fall into one of the following
    benefit categories specified in the Social Security Act (S1861(s)):

         1.    Durable medical equipment (DME)

         2.    Prosthetic devices (including nutrition)

         3,    Leg, arm, back and neck braces (orthoses) and artificial leg, arm and eyes, including
               replacement (Prostheses)

         4. Surgical dressings
         5. lmmunosuPPressive drugs
         6. Therapeutic shoes for diabetics
         7: Oral anticancer drugs
         L Oralantiemetic drugs (replacement         for intravenous antiemetics)

         L lntravenous immune globulin
    General definitions and coverage issues relating to the preceding categories are listed below.



    Fall2O14                         DME MAC Jurisdiction C Supplier Manual                                 Page   1
Coveraoe and                           Policv                                           Chaoter 9

Durable Medical Equipment (DME)
Durable medical equipmenf is equipment which (a) can withstand repeated use, (b) is primarily and
customarily used to serve a medical purpose, (c)generally is not usefulto a person in the absence
of an illness or injury, and (d) is appropriate for use in the home'

Supplies and accessories that are necessary for the effective use of medically necessary DME are
covered. Supplies may include drugs and biologicals that must be put directly into the equipment in
order to achieve the therapeutic benefit of the DME or to assure the proper functioning of the
equípment,

Repairs, skilled maintenance, and replacement of medically necessary DME are covered,

Prosthetic Devices
Prosthetic devices are items which replace all or part of an internal body organ or replace all or part
of the function of a permanently inoperative or malfunctioning internal body organ. The test of
permanence is considered met if the medical record, including the judgment of the attending
physician, índicates that the condition is of long and indefinite duration.

ln addition to artificial arms and legs, coverage under this benefit includes, but is not limited to,
breast prostheses, eye prostheses, parenteral and enteral nutrition, ostomy supplies, urological
supplie's in patients with permanent urinary incontinence, and glasses or contact lenses in patients
with aphakia or pseudophakia,

Enteral and Parenteral Nutrition therapy is covered under the prosthetic device benefit provision,
which requires that the patient must have a permanently inoperative intemal body organ or function
thereof,

Supplies that are necessary for the effective use of a medically necessary prosthetic device are
covered. Equipment, accessories, and supplies (including nutrients) which are used directly with an
enteral or parenteral nutrition device to achieve the therapeutic benefìt of the prosthesis or to assure
the proper functioning of the device are covered.

Repairs, adjustments, and replacement of medically necessary prosthetic devices are covered.

Dental prostheses (i.e., dentures) are excluded from coverage. Claims for internal prostheses (e.9.,
intraocular lens, joint implants, etc,) are not processed by the DME MAC.

Braces (Orthotics)
A brace is a rigid or semi-rigid device that is used for the purpose of supporting a weak or deformed
body member or restricting or eliminating motion in a diseased or injured part of the body.

Repairs, adjustments, and replacement of medically necessary braces are covered.

Surgical Dressings
Surgical dressings are therapeutic and protective coverings applied to surgical wounds or debrided
wounds. Surgicat dressings include primary and secondary dressings.




Fall2014                     DME MAC Jurisdiction C Supplier Manual                               Page2
                  and Medical                    cv                                                              I
lmm unosuppressive Drugs

lmmunosuppressive drugs used in patients who have received a Medicare-covered organ transplant
are covered. lmmunosufpressive drugs used for indications other than transplantation do not fall
into the DME MAC's jurisdiction.

Supplies used in conjunction with parenterally administered immunosuppressive drugs are not
covered under this benefit category,

Therapeutic Shoes for Diabetics
Custom molded or extra-depth shoes and inserts for use by patients with diabetes are covered
under this benefit.

OralAnticancer Drugs
Certain oral cancer drugs are covered if they have the same chemical composítion and indications
as the parenteral form of the drug.

Oral Antiemet¡cs (used as full replacement for lV form)
                                                                                            (lV)
Certain oral antiemetic drugs are covered when used as full replacement for the intravenous
form of the same drug during chemotherapy treatment'

lntravenous lmm une Globulin
lntravenous immune globulin is covered when it is administered in the home to treat primary
immunoOeficiency. lníusion pumps and other administration supplies are not covered under this
beneflt.



2. Medical Review Program
cMs Manual system, Pub, 100-08, Medicaro Program lntegriu Manua,, chaptor   1,   sl'3'E

The goal of  t                     ram is to reduce        pa                             ing and add-ressing-
billin! errors                     nd coding made          by                              review staff at CGS
consi-sts of a                     cian), clinical staff    (                             ther allied health
professionals), and experienced support personnel'

Medical Review Res Ponsibilities
    .   Develop LocalCoverage Determinations(coverage policies)

    a   Analyze claim data

    o    Perform probe reviews and audits to validate if problems exist

    a   perform corrective actions to reduce errors, including prepay review of claims with clinical
        staff
    a   Advance Determination of Medicare Coverage (ADMC)

    a    Prior Authorization of Power Mobility Equipment




                                DME MAC Jurisdiction C Supplier Manual                                    Page 3
Fall 2014
Co                       and Medical                                                             nter     I
     a      Develop an annual Medical Review Strategy, based on data analysis, that details the
            problems and interventions in the jurisdiction

            Partner with the Communications Department to otfer provider outreach and education



3. Medical Policies
CMS Manual System, Pub. 100-03, Medlcare Natlonal Coverage Determlnatlons Manual
CMS Manual Sistom, Pub, 100{8, Madlcare Program tntegrlly Manual' Chapter 13

General lnformation
Medical policies may be either national or local,

National medical policies are established by the Centers for Medicare and Medicaid Services (CMS)'
These policies are found on the CMS website in the Medicare National Coverage Determinations
Manua'tand in the Medicare Benefit PolÌcy Manual. Both manuals can be viewed at

lOMs.html, You can search for National Coverage Determinations (NCDs) using the Medicare
Coverage Database at
search.ãsox. The DME MACs, CERT, Zone Program lntegrity Contractors (ZPlCs), and
Ãdministrative Law Judges (ALJ) follow national policy when it exists,

Local medical policies are developed by the DME MACs, The DME MACs have the authority and
responsibility tò establish local policies when there is no national policy on a subject.orwhen there is
a nbed to fuither define a national policy, The DME MACs' medical directors jointly develop local
medical policies. The medical policies are identical for all DME MACs'

Local medical policies consist of two separate, though closely related, documents: a Local Coverage
Determination it-CO¡ and a Policy Article, A link to the CMS Medicare Coverage Database can be
found on the hòme page of CGSis DME MAC Jurisdiction C website, listed under Coverage &
pricing. The LCDs óan Oe viewed at http://www.cqsmedicare com/lclcQYelagq/Lç81-[-lo'¡l¡0!.

Major Sections of an LCD
Cove rag e    In   d i catio n s, Li m ita ti o n s, a n d /o   r M e d i cal Necessify

 '       Dufin", coverage criteria based on a determination of whether an item is eligible for a defined
         Medicare benefit category, reasonable and necessary for the diagnosis or treatment of illness
         or injury or to improvelhé functioning of a malformed body member, and meets all other
         apptíca'nte Medicare statutory and regulatory requirements, ltems addressed in this section are
         bäied on Social Security Aci S1862(a)(1XA) provisions. When an item does not meet these
         criteria, it will be denied as "not medically necessary."

HCPCS Codes and Modifiers

         A list of the HCPCS codes and modifiers that are applicable to the LCD, The presence of a
 ,       code in this section does not necessarily indicate coverage,

tCD-9 Codes and Diagnoses that Support MedicalNecesslfy

         A list of the ICD-9 codes that relate to coverage criteria described in the lndications and
         Limitations of Coverage and/or Medical Necesslfy section.




Fall20'14                                  DME MAC Jurisdiction C Supplier Manual                      Pagø 4
Coveraqe                          d Medical Policv                                        c haoter I
Docu me    n   tatio   n   Req   u i re m   e   nts

      States the necessary documentation requirements that you must have on file and/or submit
      with your claim.

Revision History

Attachments

      CMN or DIF (if applicable)

      Other suggested forms (if applicable)

Major Sections of a PolicY Article
Non-Medical Necessify Coverage and Paymenf Rules

      ldentifies situations in which an item does not meet the statutory definition of a benefit category
      (e.g., durable medical equipment, prosthetic devices, etc,) or when it doesn't meet other
  ,   i"q-uirerents specified in règulations. lt also identifies situations in which an item is statutorily
  ,   exòluded from coverage for ieasons other than medical necessity, ln these situations, the term
      used to describe the dlnial is "noncovered." This section may also include statements defining
      when an item wíll be denied as "not separately payable" or situations in which claim processing
      for the item is not within the DME MAC's jurisdiction.

Coding Guidelines

ICD-9 Codes that are covered

 ;    A list of the ICD-9 codes that relate to statutory or regulatory coverage issues, as described in
      tne Non-Medical Necessity Coverage and Payment Rules section.

Revision History

At the end of each LCD, there is a link to the related Policy Article and at the end of each Policy
Article there is a link to the related LCD. New or revised policies are generally released on a
quarterly basis: March, June, September, and December. Posting of new and revised policies will be
dnnounóed in a ListServ message from CGS and on our website at http;//www.cgsmedicare.com/ic.

Most new or revised policies have a future effective date at the time o!Rosting, The LCD page on
ourwebsite includes links to current/active LCDs and Policy A¡ticles, Future LCDs and Policy
Articles, Draft LCDs, and Retired LCDs and Policy Articles, This page can be viewed at
htto://www cgsmedicare. cqm/ic/coverage/LC Dinfo. html'

Development of Local Coverage Determinations
The development of Local Coverage Determinations (LCDs) is a collaborative effort led by the
medical directors of the DME MAC1, The intent of the policy development process is to provide the
opportunity for input from the supplier and medical community to assure that the final policy is
consistent with sound medícal practice.

The initial stage of the process is the development of a draft policy. This stage is based on. a review
of the medicai l¡teraturè and the contractor's knowledge of medical practice relating to the item. The
medical directors seek input from various individuals and groups during the drafting phase of policy
development.



Fall2O14                                         OME MAC Jurisdiction C Supplier Manual              Page 5
                   and Medical Po lÍcv                                                              I
Drafts of new medical policies or revised policies that propose more restrictive medical necessity
coverage criteria are sent for comment to a wide spectrum of national and regional organizations
represãnting manufacturers, suppliers, physicians, and other healthcare professionals. The_se draft
mäO¡cat policies are announced in a ListSàru message from CGS anda posting.on.!he CGS website
at                                                  rfo html, The DME MAC website lists both a mail
address and an email address to   which       comments        sent. There are 45 days allowed for
comments to draft policies, The website lists the start date and end date of the comment period.

The DME MAC encourages written comments to its draft policies, lf commentators disagree with any
aspects of the policy, they should otfer specific alternative wording and support their suggestions
with references from the published medical llterature.

The DME MAC also holds an open meeting to hear public comments on each draft policy that is sent
for comment, The meeting is scheduled duiing the comment period for a draft policy. Notice of the
meeting is placed on the ÓUe UnC website. The notice includes the date, time, and location of the
meetin! anb instructions for those who wish to make a presentation at the meeting. lnterested
parties-may present scientific, evidence-based information, professional consensus opinions, or any
ôther relevânt information, The meeting is led by tl"e DME MAC Medical Director'

After the close of the comment period, the DME MAC medical directors review all of the comments
that have been received and revise the policy as appropriate. The medical directors summarize the
comments and provide a response to each indicating whether or not they agree with the.suggestion.
lf they do not agree, they givè reasons for the decision, This "Response to Comments" document is
found as an LC-D attachment link at the end of the LCD. Following adoption, final medical policies
are posted on the DME MAC website,

LCD Reconsideration Process
There is a formal process for requesting revision of a LCD. lnformation can be found on the Medical
                                                                :




Claim Determination in the Absence of Medical Policy
The DME MACs and ZPICs have the authority to review any claim even if there is no formal national
or local policy. ln those situations, the contractor first    dete                           a
statutory ¡enitit category that is within its jurisdiction. lf it                           ether
the item is reasonable and necessary for the individual pa
pertinent medical literature, lt also includes review of      deta                    ..    g
                                                                     of the item.
þhysician/practitioner and supplier supporting the medical necessity



4. Advance Determination of Medicare coverage (ADMG) for
Wheelchairs
CMS Manual System, Pub' 'lOO{8, Medtcare Program Integrity Manua,' ChapÛer 6' S5'16

Advance Determination of Medicare Coverage (ADMC) is an optional process by which the DME
MAC provides you and the þeneficiary with a coverage decision prior to delivery of an item.

An ADMC is available only for the following wheelchair base HCPCS codes and related options and
accessones:

Manual Wheelchairs



                                 DME MAC Jurisdiction C Supplier Manual                          Page 6
Fall2O14
Coveraoe and Medical                          cv                                     Chaoter         I
E1161

81231-É',,234

K0005

K0008

K0009

Power Wheelchalrs

Group   2:     K0835-K0843

Group   3:     K0848-K0855 [only if an alternative drive control interface (82321-82322,82325,
               82327-82330) will be provided at the time of initial issuel
               K0856-K0864

Group   5:     K0890-K0891

Custom Motorized/Power Wheelchair: K0013

When a particular wheelchair base is eligible for ADMC, all wheelchair options and accessories
ordered 6y the physician/practitioner for that beneficiary along with the base HCPCS code will be
eligible for ADMC,

The ADMC request should include the wheelchair base and each option and accessory that is to be
provided. Oo n'ot submit an ADMC request for options and/or accessories without a wheelchair base.

All requests for Advance Determination of Medicare Coverage should be submitted to CGS. Cleafi
indÍcate "ADMG" on the first page of all requests. For your convenience, an ADMC request form
is províded on the DME MAC Jurisdiction C website. You can access and fill out the form online at
htto://www. cgsmedicare com4c/forms/pdf/JC-ADMC rqq uest form. pdf.

ADMC requests may be faxed to (615)7824647 or mailed to the following address, ADMC request
cannot be submitted electronically.

CGS
Attn:ADMC
P.O. Box 20010
Nashville, TN 37202

The first page of the ADMC request must contain all of the following demographic information:

    a      Beneficiary information

        o     Name

        o     HICN

        o     Address

        o     Date of birth

    a      Place of service




Fall2014                      DME MAC Jurisdiction C Supplier Manual                             Page 7
 Coveraqe and Medical Policv                                                            Chaoter 9
     .     ICD-9 diagnosis code (narrative description is not sufficient)

     .     Supplier information

           o   Company Name with a contact name

           o   NSC number

           o   Address

           o   Phone number

     .     Physician'sinformatlon
           o   Name

           o   NPI

           o   Address

           o   Phone number

lf the lnformatlon listed above is not present, the requestwill be reJected. You will receive
written notification of the rejection.

Rejections
ADMC requests are reviewed to determine whether or not they meet the requirements for ADMC
requests. Reasons to reject an ADMG request include:

     1. The item being submitted is not one of the ADMC eligible wheelchair bases
     2. The request exceeds the limit of two within six months,
     3, The beneficiary does not live in Jurisdiction C.
     4, The request is missing demographic information (i.e,, beneficiary's name, current address,
           date of birth, Medicare identífication number [HICN], the supplieis National Supplier
           Clearinghouse [NSC] number and/or the provide/s National Provider ldentification [NPl]
           number).

   5. lt is the 2nd request, but no new information was submitted
   6, The place of service is a hospital or skilled nursing facility.
 ' 7. Two different wheelchair base item codes (HCPCS) are listed on the request and it cannot
           be determined which base is to be reviewed for medical necessity.
 ,
     8. A faxing error has occuned which resulted in missing, blackened,    partial and/or incomplete
           documentation,

     L     A duplicate request is submitted.
 I   10. A request is submitted for an advance determination on previously denied accessories
           and/or additional accessories when the base was previously approved.




Fall2014                        DME MAC Jurisdiction C Supplier Manual                           Page   I
Coveraqe and                      edical PolÍcv                                              Chaoter 9
      11, The item that is being submitted for advanced determination is NOT a wheelchair.
            -fhe
      12.          base is covered under the prior authorization demonstration for PMD (see section 5
            below).

Power Wheelchair Documentation
lnclude all of the following items with the ADMC request:

1.    The wrltten order (also referred to as the 7-element order) that you received within 45 days
      following the completion of the in-person examination. This order must be written by the treating
      physician/practitioner and contaín the following elements:

         i.        Beneficiary name

        ii.        Description of the item. This may be general- e.9., "power wheelchai/' or "power
                   mobility device" - or mây be more specific,

        ¡ii,   Date of the in'person examination. lf the evaluation involved multiple visits, enter the
               date of the last visit. Refer to the Power Wheelchairs policy for additional information.

  , iv,            Pertinent diagnoses/conditions that relate to the need for the power wheelchair.

     v.        Length of need

    vi.        Physician's/practitioner's signature (refer to Ghapter 3 of this manual for signature
               requirements)

       vii.    Date of physician/practitioner signature (refer to Chapter 3 of this manual for sígnature
               requirements)

      You must document the date in which you received the physician's/practitioner's order           -   there
      must be a clear date stamp or equivalent.

      You may provide a template order listing the seven required elements, but you are prohibited
      from completing any part of it, lt is a statutory requirement that the treating physician/practitioner
      who conducted the face-to-face requirements write the 7-element order. The 7-element order
      may only be written after the completion of the face-to-face exam requirements. Refçr to the
      Power Mobility Devices (PMD) Policy Article, Nonmedical Necessity Coverage and Payment
      Rules section for information regarding the statutory requirements for PMDs.

      lf you do not receive a written order containing all of these required elements within 45 days afrer
      completion of the face-to-face examination, an EY modifier must be added to the HCPCS codes
      for the PMD and all accessories. The order must be available on request.

2',   A detailed product description. Once you have determined the specific power mobility device
      that is appropriate for the patient based on the physician's/practitioner's 7-element order, you
      must prepare a written document (termed a detailed product description), Thlo detailed product
      description (DPD) must comply with the requirements for a detalled written order as
      ouflindd in Chapter 3 of thls manual and the CMS Program lntegrity Manual (CMS Manual
      System, Pub. '100-8), Chapter 5. Regardless of the form of the description, there must be
      súfficient detail to identify the item(s) in order to determine that the item(s) dispensed is properly
      coded.




Fall2014                           DME MAC Jurisdiction C Supplier Manual                                   Page 9
 Coveraoe and Medical Policv                                                                Chaoter          I
      The physician/practitioner must sign and date the detailed product description and you must
      receive it prior to delivery of the power wheelchair or power operated vehicle. A date stamp or
      equivalent must be used to document the supplier receipt date. The detailed product description
      must be available on request.

3. A report of the in-person examination, The treating      physician/practitioner must conduct an in-
      person examination of the beneficiary before writing the order, Refer to the Power Mobility
      Devices Policy Article for guidance about the type of information to be included in the in-person
      examination and specialty evaluation,

4.    Attestation of "no financial involvement." The PMD LCD requires a signed and dated
      affirmation from the supplier that the licensed/certified medical professional (LCMP) performing
      the specialty evaluation has no financial relationship with the supplier. CGS will also accept an
      attestation of no financial relationship from the LCMP conducting the specialty evaluation.

5.    Evidence of RESNA certification by the eupplier's Assistive Technology Profeseional
      (ATP). This can be documented by providing a copy of the RESNA certificate or a printout from
      the RESNA website showing that the individual's ATP credentials are current, The RESNA
      website is www. resna.ore,

6;    Evidence of "direct, in-person involvement" in the selection of the product..Documentation
      of direct in-person interaction with the patient by the ATP in the wheelchair selection process
      must be complete and detailed enough so a third party can understand the nature of the ATP
      involvement. Just "signing off' on a form completed by another individual does not adequately
      document direct, in-pèrson involvement, Also, merely signing a statement such as, "l am a
      RESNA-certifìed professional specializing in wheelchairs and had direct, in-person involvement
      in the wheelchair selection for this patient" does not sufficiently verify that this policy requirement
      was met. Finally, a home assessment completed by a supplier-employed ATP does not meet the
      requirement uniess the documentation shows how the ATP applied the assessments and
  '   measurements to the wheelchair selection process.

7. A report of the on-site home assessment which establishes           that the beneficiary is able to use
      the wheelchair ordered to assist with Activities of Daily Living (ADLs) in the home.

Manual Wheelchair Documentation
lnclude all of the following items with the ADMC request:

1. Detaíled written   order that lists the specific wheelchair base that is to be provided and each
      option/accessory that will be separately þilled. This information may be entered by the supplier
      but the order must be signed and dated by the physician/practitioner (refer to Chapter 3 of this
      manual for signature requirements).

2.    lnformation from the beneficiary's medical record that documents that the coverage criteria
      defined in the LCD on ManualWheelchairs have been met.

3. A home assessment       which establishes that the beneficiary or caregiver is able to use the
      wheelchair ordered to assist with ADLs in the home,

Additional Guidance on Documentat¡on
Any information that is provided that explains the medical necessity for separately-billed options and
acðessories must use the same short description for the item that is used in the detailed product
description or detailed written order.



Fall2Q14                        DME MAC Jurisdiction C Supplier Manual                               Page    l0
Coveraae and                  dical Policv                                               Chaoter         I
lf the beneficiary's weight and/or height are needed to support the medical necessity for items that
are ordered, that information should be included on the first page of the ADMC request.

Even if the majority of the in-person examination for a power wheelchair (PWC) is performed by an
LCMP, the ADMC request must also include the report of the in-person examination with the
physician.

Forwheelchair cushions, include the manufacturer, product name, model number, and the width of
the wheelchair cushion(s) that is provided. Make certain that the product is listed on the Pricing,
Data Analysis and Coding (PDAC) Contractor Product Classification List and that the HCPCS code
on the ADMC is the one specified by the PDAC (consult the PDAC website at
https://www dmepdac,com/) See Chapter 16 of this manual for information about the PDAC.

lf the beneficiary currently has a wheelchair or a power operated vehicle (POV), the ADMC request
must indicate the reason why it is being replaced.

ADMC Process
Upon receipt of an ADMC request, the DME MAC will make a determination within 30 calendar days,
The DME MAC will provide you and benefìciary with its determination, either affirmative or negative,
in writing. lf it is a negative determination, the letter will indicate why the request was denied - e.9.,
not medically necessary, insufficient information submitted to determine coverage, statutorily non-
covered.

lf a wheelchair base receives a negative determination, all accessories will also receive a negative
determination. lf a wheelchair base receives an affirmative determination, each accessory will
receive an individual determination,

An affirmative determination only relates to whether the item is reasonable and necessary based on
the information submitted. An affirmative determination does not provide assurance that the
beneflciary meets Medicare eligibility requirements nor does it provide assurance that any other
Medicare iequirements (e.g., place of service, Medicare Secondary Payer) have been met, Only
upon submission of a complete claim can the DME MAC make a full and complete determination. An
aifirmative determination does not extend to the price that Medicare will pay for the item.

An affirmative ADMC is only valid for items delivered within six months following the date of the
determination. lf the wheelchair is not delivered within that time, you have the option of either
submitting a new ADMC request (prior to providíng the item) or filing a claim (after providing the
item).

When submitting a claim with HCPCS code K0108 for the ADMC approved options/accessories, the
nanative description on the claim must be the same description used in the ADMC request.

A negative ADMC may not be appealed because it does not meet the regulatory definition of an
initiafdetermination since no request for payment is being made. However, ll the ADMC request for
the wheelchair base is denied and if you obtain additional medical documentation, an ADMC request
may be resubmitted. ADMC requests may only be resubmitted once during the six-month period
follówing a negative determination. lf the wheelchair base is approved, but one or more accessories
are denied, an ADMC request may not be resubmitted for those accessories. lf you provide a
wheelchair and/or accessories following a negative determination, a claim for the item should be
submitted, lf new information is provided with the claim, coverage will be considered, lf the claim is
denied, it may be appealed through the usual process (see Chapter 13 of this manual for information
about appeals).




Fall2O14                      DME MAC Jurisdiction C Supplier Manual                              Page   11
Coveraoe and Medical Polrcv                                                           Chaoter         I
Finally, the DME MAC may review selected claims on a pre-payment or post-payment basis and
may deny a claim or request an overpayment if it determines that an affirmative determination was
made based on incorrect information.



5. Prior Authorization of Power Mobility Devices (PMD)
On September 1,2012, the Medicare Fee-for-Service Program began a prior authorization
demonstration for certain PMDs, The new prior authorization process is for orders written on or after
September 1,2012, and applles to beneficiaries who permanently reside the Jurisdiction C states of
North Carolina, Florida, and Texas.
On October 1,2014, the demonstration was expanded to include beneficiaries permanently residing
in the states of Georgia, Louisiana, and Tenrlessee and is available for orders written on or after
October 1,2014

The prior authorization process under this demonstration is available for the following HCPCS codes
for Medicare payment:

    .   Group 'l Power Operated Vehicles (K0800-K0802 and K08f 2)

    o   All standard power wheelchairs (K0813-K0829)

    .   All Group 2 complex rehabilitative power wheelchairs (K0835-K0843)

    .   All Group 3 complex rehabilitative power wheelchairs without power options (K0848-K0855)

    ¡      Pediatric powerwheelchairs (K0890-K0891)

    .   Miscellaneous power wheelchairs (K0898)

    Note: Group 3 complex rehabilitative power wheelchairs with power options (K0856-K0864) are
    excluded.

The goal of this program is to develop and demonstrate improved methods for the investigation and
prosõcution of fräuO-¡n the provision ôf pn¡Os, The CMS plans to test this process and com.pare the
iesults to traditional pre-payment review in order to evaluate whether, and to what extent, the two
processes are effective in investigating and prosecuting fraud. Letters have been sent to suppliers _
änd physicians/practitioners who have provided a PMD for a Medicare beneficiary residing in one of
the demonstration states within the past three years,

It is important to keep in mind that the prior authorization demonstration does not create new
documentation requirements for physicians/practitioners or suppliers-it simply requires them to
provide the informätion earlier in the claims process. The prior authorization request can be
iubmitted by either the physician/practitioner or the supplier (referred to as a "submitted').
Forbeneficiaries residing in GA FL, LA NC TN. orTX, mailorfaxthe priorauthorization request
with accompanying documentation to the address or fax number below'

        CGS - DME Medical Review      -   Prior Authorization
        PO Box 24890
        Nashville, TN 37202-4890
        Fax: 615.664.5960




FaI 2414                     DME MAC Jurisdiction C Supplier Manual                              Page 12
 Coveraae and Medical Policv                                                             c hanter       9

A Prior Authorization Request (PAR) coversheet is available on our website at
htto://www.cqsmedica                                                            . Use of the coversheet
will help to ensure that you have included all relevant documentation with your request,

The submitter of a prior authorization request must include all relevant documentation to support
Medlcare coverage of the PMD item, This includes:

        1.   The seven element written order for the PMD,

        2.   Documentation of the face-to-face examination where the physician/practitioner evaluated
             the patient's need for the PMD, and

        3. The detailed   product description,

The Local Coverage Determination requires physicians/practitioners to originate the seven element
order, face-to-face encounter documentation, and any other clinical documentation such as progress
notes that are necessary to supporl the medical necessiÇ of the item. ln addition, you (the supplier)
are required to complete the detailed product description.

After receipt of all relevant documentation from the submitter, the DME MAC will review and
communicate a decision within 10 business days on whether the PMD meets all Medicare coverage
requirements. ln rare cases the physician/practitioner may seek an expedited review of the prior
authorization request-under an emergency situation we will attempt to review and communicate
within 48 hours a decision on the prior authorization request. The DME MAC will send the decision
letter regarding prior authorization (affirmative or non-affirmative) to the physician/practitioner, the
supplier, and the Medicare beneficiary. The decision letter will also contain information about why
the þrior authorization reguest is non-affirmative, ln addition a prior authorization tracking number
willbe provided when a decision is made. This numbershould be suþmitted on the claim forthe
PMD.

lf the prior authorization is non-affirmed by the DME MAC, you may send subsequent prior
authoiization requests The DME MAC will make every effort to conduct a review and communicate
a decision within 20 business days on each subsequent prior authorization request. lf a claim, with a
non-affirmative decision, is still submitted to the DME MAC for payment, it will be denied. The
supplier andlor beneficiary can use the claim appeal process for a claim deniaf but not a non-
affirmative prior authorization decision from the DME MAC.

Starting on December 1,2012, CMS will assess a 25 percent payment reduction on your payable
claim when the first claim was not preceded by a prior authorization request. To avoid the payment
reduction, you must include the prior authorization tracking number on the claim. This 25 percent
reduction in the Medicare payment is for each covered claim not preceded by a prior authorization
request, with one important exception: lf a competitive bidding contract supplier submits a payable
claim for a beneficiary with a permanent residence in a competitive bidding area, the competitive bid
supplier will receive the contractual single payment amount under their contract. You must still
adhere to all other requirements of the demonstration,

Additional information about the demonstration is available on our website at
http://www.cqsmedicare com/iclcoveraqe/mr/prior auth.html and on the CMS website at
http //q o. cm s. g o v/PAD emq.
    :




Fall 2014                          DME MAC Jurisdiction C Supplier Manual                         Page 13
 Prior Authorization Request (PAR) Coversheet
 JURISDICTION                     C

 Power Mobility Demonstration

 Request Date                                                                        Number of Paqes (includins

For HCPCS                                                                            lnitial Request                  0R Subseouent Reouest

Êntity Submitting Supplier                            Practitioner (TP)

Supolier Name                                                                        Phvsician/TP Name

SupplierAddress                                                                      Physician/TP Name




Supplier Phone                                                                       Phvsician/ïP Phone

Suoolier Contact Name                                                                Physician/TP Fax

Suoplier Fax                                                                         PhysicianiTP NPI

Supplier NPI

Suoolier NSC




Beneficiary Name                                                                     Beneficiary HICN

Beneficiary State of Residence                                                       Beneficiarv Date of Birth




Expedited      Request?               Yes        No

Note: Expedited requests require justification to meet expedited requirements,



Expedited Request Justification




Checklisf of PAR information to include;                                           Fax the PAR   to: 1,615,664,5960
   .   Completed coversheet                                                        OR
   .   Tclement'order                                                              Mallthe PAR   to:    CGS
   .   Face-to-Faceassessment                                                                           DME Medical Review    '   Prior Aulhorization
   .   Detailed product description                                                                     P0 Box 24890
   .   Specialty evaluation (if required by policy)                                                     Nashville, TN 372024890
   .   Other relevant medical documentation
For additlonal lnformation, such as the medical policy, please visit our website
ah http//www.cqsmedicare

Revl3sd February
@ 20'14
                     ll,   2014

          Copyright, CGS Adm¡nistrators, LLC.
                                                         mobilitv resources,html

                                                                                               CGS'
                                                                                        A CËLËRI N GffOUÈ COMI'ANY
                                                                                                                                               rvrs
                                                                                                                                  CINITNS fOT M€DICARE & MTDICAID SÉßVICEJ
APPENDIX 12
WeistLaw
                                                                                                              Page I
945 F.Supp.2d 746,Med & Med GD (CCH) P 304,372
(Cite as: 945 F.Supp.2d 746)




H                                                           (5) categorical denial of  requests under Texas
                                                            Medicaid Act did not violate procedural due pro-
         United States District Court,                      cess; and
                 N.D. Texas,                                (6) recipients were not denied fair hearing follow-
               Dallas Division.                             ing denial, in alleged violation ofdue process.
Scott DETGEN by his next friend L.C. DETGEN,
               et al., Plaintiffs,                                    Recipients' motion denied; Commissioner's
                                                            motion granted.
Dr, Kyle JANEK, in his official capacity as Execut-
 ive Commissioner, Texas Health and Human Ser-                                      West Headnotes
             vices Commission, Defendant.
                                                            f   lf   Civil Rights 7gæ1027
           Civil Action No. 3:11-CV-2974-G
                                                            78 Civil Rights
                   March 13,2013.
                                                                78I Rights Protected and Discrimination Prohib-
Background: Disabled Medicaid recipients fìled              ited in General
                                                                   7 8kl 026 Rights Protected
suit under $ 1983 against Texas Health and Human
                                                                       7t1k1027 k. In general. Most Citecl Cases
Services Commissioner, challenging categorical
denial oftheir request for benefits for installation of          Right to sue government actor under $ 1983,
ceiling lift designed to assist them in transfer to and     for "deprivation of any rights, privileges, or im-
from bed, bath, and other surfaces,                         munities," did not mean that cause of action was
                                                            limited to alleged violation of official's legal oblig-
Holdings: On cross-motions for summary judg-                ations; rather, inquiry was whether offìcial's action
ment, the District Court, A. Joe Fish, Senior Dis-          violated right conferred on plaintifî        by law. 42
trict Judge, held that:                                     u.s.c,A. $ r983.
(l) right to sue government actor under $ 1983 for
"deprivation of any rights, privileges, or immunit-         [2] Civil Rights 73          S'1028
ies," did not mean that cause of action was limited
                                                            78       Civil Rights
to alleged violation of official's legal obligations;
                                                                781 Rights Protected and Discrimination Prohib-
(2) statutory right under federal Medicaid Act to
                                                            ited in General
fair hearing before state agency "to any individual
                                                                        78kl 026 Rights Protected
whose claim for medical assistance under plan is
                                                                            78k1028 k. Due process   oflaw and equal
denied" conferred private individual rights on re-
                                                            protection. Most Citod Cases
cipients that was enforceable in action under $
                                                                The Fourteenth Amendment right of due pro-
I   983;
                                                            cess confers an individual right enforceable in a $
(3) whether Texas Medicaid statute and rules were
                                                            1983 suit. U.S.C.A. Clonst.Arnend. l4;42 U.S.C.A.
preempted by federal Act presented question under
                                                            $ r983.
Supremacy Clause, which provided recipients with
implied cause of action for declaratory and injunct-        13l      Civil Rights   73   @1052
ive relief;
(4) Texas Medicaid Act's characterization of ceiling        78 Civil Rights
lift as home modification, and not durable medical             781 Rights Protected and Discrimination Prohib-
equipment (DME), for purposes of eligibility for            ited in General
benefits, was not preempted by federal Act;                         78kl 05 1 Public Services, Programs, and Be-




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nefits                                                            u.s.c.A. $ 1983,
            78k1052 k. In general. Most Cited Cases
     Statutory right under Title XIX of Social Se-                [5l Federal Courts 17¡3          Q2233
curity Act to fair hearing before state agency "to
                                                                   l70ll Federal Courts
any individual whose claim for medical assistance
                                                                        I70BIV Cases "Arising Under" Federal Law;
under plan is denied" conferred private individual
                                                                  Federal-Question Jurisdiction
rights on disabled Medicaid recipients that was en-
                                                                                 lT0llIV(ìl) Particular   Cases, Contexts, and
forceable in action under $ 1983; Congress clearly
                                                                  Questions
intended that any individual whose claim for Mcdi-
                                                                                   17011k2232 Matters of Procedure in Gen-
caid benefits was denied would be benefited by
                                                                  eral
"fair hearing" provision, right to fair hearing was                                    1108k2233 k. In general. Most Cited
not so vague and amorphous such enforcement
                                                                  Cases
strained judicial competence, and statute imposed
                                                                        (Formerly 170Bk192)
mandatory obligation on states to conduct such
hearing. Medicaid Act, $ 1902(a)(3),42 U.S.C,A. S                 Federal Courts 17gg          æ2234
1396a(aX3);42 U.S.C.A. $ 1983.
                                                                   1   708 Federal Courts
[4] Declaratory Judgment 1134 Ç:;a204                                      lT0lllv    Cases   "Arising Under" Federal Law;
                                                                  Federal-Question Jurisdiction
I l8A Declaratory Judgment
                                                                                 l70BIV(B) Particular     Cases, Contexts, and
    I I 8AI I Subj ects of Declaratory Relief
                                                                  Questions
         l l8All(K) Public Officers and Agencies
                                                                                   1708k2232 Matters of Procedure in Gen-
               1 l8Ak204 k. State officers and boards
                                                                   eral
Most Citecl Cases
                                                                                         1708k2234 k. Declaratory relief in
                                                                   general. Most Cited Cases
Injunction 212 @1289
                                                                      (Formerly 170Bk192)
212 Injunction                                                            The federal courts have jurisdiction over          a

        V Particular Subjects of Relief
   2 I 2l                                                          preemption claim seeking injunctive and declarat-
       2121Y(G) Social Securify, Welfare, and Oth-                 ory relief. 28 U.S.C.A. $ 1331.
er Public Payments
            212k1289 k. Health care; Medicare and                  [6] Health 193¡¡       @457
Medicaid. Most Cited C:esos
                                                                   198H Health
    Whether rules, policies, and practices of Texas
                                                                      I 9 SHIII Government Assistance
Health and Human Services Commission in cat-
                                                                           198Hìll(A) In General
egorically denying requests for ceiling lifts de-                                     l9tìHk457 k. Preemption. Most Cited
signed to assist disabled Medicaid recipients in
                                                                   Case s
transferring to and from bed, bath, wheelchair, and
other surfaces, conflicted with goals of federal                   States 360       €Þ18.79
Medicaid     Act   regarding coverage     for   medical
equipment, and therefore, were preempted by Medi-                  360 States
caid Act, presented question under Supremacy                              3601   Political Status and Relations
Clause, which provided recipients with implied                              360l(ll) Federal Supremacy; Preemption
cause ofaction for declaratory and injunctive relief.                            360k18.79 k. Social security and public
LJ.S.C.A. Consl.    Art. 1, {i 8, cl. i; Medicaid Act, $           welfare . Most Cited Cases
1901     et seq., 42  U.S.C.A. $ 1396 et seq.; 42                      Texas Medicaid Act's characterization of ceil-




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ing lift designed to assist disabled Medicaid recipi-        92XXVIl Due     Process
ents in transferring to and from bed, bath, wheel-                  92XXVII(G) Particular Issues and Applica-
chair, and other surfaces, as home modification,          tions
and not durable medical equipment (DME), did not                       92XXVll(G)5 Social Security, Welfare,
conflict with federal Medicaid Act's requirement          and Other Public Payments
that state plan include "reasonable standards for de-                 92k4 I 24 Medical Assistance
termining eligibility for and extent of medical as-                         92k4126 k. Medicaid. Most Citcd
sistance, regulation requiring that service be suffi-     Casos
cient in "&mount, duration, and scope to achieve its
purpose," or DeSario letter criteria, and thus, feder-    Health 198H    €Þ478
al Medicaid Act did not preempt Texas Medicaid
                                                          198H Health
Act; Center for Medicare       &   Medicaid Services
                                                             I 9 SlIIlI Govemment Assistance
(CMS), which was charged with administration of
                                                                   198HIII(B) Medical Assistance in General;
Medicaid statute, expressed in its guidance to Texas
                                                          Medicaid
Health and Human Services Commission its view
                                                                   198Hk412 Benefits and Services Covered
that federal funding was unavailable for certain
                                                                           198Hk478 k. Medical equipment;
items of DME, including ceiling lifts, and Texas
                                                          wheelchairs. Most Cited Cases
was not required to shoulder entire burden of cost
                                                             Disabled Medicaid recipients did not have le-
of ceiling lift under its own Medicaid plan. Medi-
                                                          gitimate claim of entitlement under Title XIX of
caid Act, $ 1902(aXl0)(D), (a)(17),42 U.S.C.A. {i
                                                          Social Security Act to installation of ceiling lifts
l3e6a(a)(10)(D), (a)(l 7); 42 C.F.R. (i{i 440.230(b,
                                                          designed to assist in transfer to and from bed, bath,
c),440.70; I TAC $$ 354.1035,35a.1039(aXa).
                                                          wheelchair, and other surfaces, and thus, Texas
                   @478                                   Health and Human Services Commission's categor-
[7] Health 193¡¡
                                                          ical denial of requests under Texas Medicaid Act
l98lt Health                                              did not violate procedural due process; Center for
   I   98HIII Govemment Assistance                        Medicare & Medicaid Services (CMS), which was
          198Hlll(B) Medical Assistance in General;       charged with administration of Medicaid statute,
Medicaid                                                  expressed in its guidance to Commission its view
          198Hk472 Benefits and Services Covered          that federal funding was unavailable for certain
                  198Hk478 k. Medical equipment;          items of DME, including ceiling lifts, and therefore,
wheelchairs. Most Citcd Cases                             ceiling lifts did not fall within scope of services
     Where a State has explicit guidance from Cen-        provided by statute. U,S,C,A, Const.Anrend. 14;
ter for Medicare & Medicaid Services (CMS) that           Medicaid Act, $ 1901 et seq., 42 U.S.C,A. $ 1396
Federal Financial Participation (FFP) will not be         et seq.
available for an item of durable medical equipment
(DME), that State acts reasonably when it categor-         [9] Constitutional Law 92   æ3874(3)
ically excludes such an item from coverage in its
                                                          92 Constitutional Law
Medicaid policies, because the Medicaid Act never
                                                             92XXVIl Due Process
requires States to shoulder the full burden of the
                                                                   92XXVII(B) Protections Provided         and
cost of services provided under the State's Medicaid
                                                          Deprivations Prohibited in General
plan. Medicaid Act, $ 1901,42 U.S,C.A. S 1396.
                                                                       92k3868 Rights, Interests, Benefits, or
                             Q4126                        Privileges Involved in General
J8f Constitutional Law 92
                                                                        92k3874 Property Rights and Interests
92 Constitutional Law                                                       92k3874(3) k. Benefits, rights and




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interests in. Most Cited Cases                                       I   98HIII Government Assistance
     To have a property interest in a benefit protec-                        lgSlIIII(B) Medical Assistance in General;
ted under the Due Process Clause, a person clearly           Medicaid
must have more than an abstract need or desire for                            198Hk460 k. In general. Most Citecl Cìases
it, or a unilateral expectation of it; he must, instead,                 Potential plaintiffs have a property interest in
have a legitimate claim of entitlement to it,                Medicaid benefits that fall within the ambit of the
U.S.C.A. Const,Arnend.      14.                              statute. Medicaid Act, $ l90l et seq., 42 U.S.C.A. $
                                                             1   3   96 et seq.
ll0l Health 198H €Þ502
                                                             [3f         Constitutional Law 92    æ3875
198H Health
   I 98HIll Government Assistance                            92 Constitutional Law
        l9SIllII(B) Medical Assistance in General;              92XXVll Due Process
Medicaid                                                                  92XXVII(B) Protections Provided and
           1   98Hk499 Administrative Proceedings            Deprivations Prohibited in General
                 l98l-1k502 k. Notice and hearing. Most                 92k3875 k. Factors considered; flexibility
Cited Cases                                                  and balancing. Most Cited Cases
     Disabled Medicaid recipients were not denied                What process is due depends on the circum-
fair hearing following denial by Texas Health and            stances of each case, U.S.C.A. Const.Amcnd. 14.
Human Services Commission of request for install-
                                                             *748 Maureen Colette O'Conncll, Southern Disabil-
ation of ceiling lift designed to assist in transfer to
and from bed, bath, and other surfaces, in alleged           ity Law Center, Austin, TX, Lewis Golinker, Law
violation of due process; recipients were given no-          Offices of Lewis Golinker, Ithaca, NY, Susan D.
tice, hearings were conducted, and Commission's              Motley, Disability Rights Texas, Dallas, TX, for
hearing offlrcer was not required to consider evid-          Plaintiffs.
ence of exceptional circumstances that warranted
                                                             Erika M. Kane, Office of the Texas Attorney Gen-
departure from Texas Medicaid policy. U.S.C.A.
                                                             eral, Austin, TX, for Defendant.
Const,Arnend. ì4; Medicaid Act, $ 1902(a)(3), 42
U.S.C,A. $ 1396a(aX3).
                                                                MEMORANDUM OPINION AND ORDER
Jllf Constitutional      Law 92   Ç3879                      A. JOE FISH, Senior District Judge,
                                                                 Before the court are the cross-motions for sum-
92 Constitutional Law
                                                             mary judgment of the plaintiffs and the defendant
   92XXVIl Due Process
                                                             (docket entries 37 and 39). For the reasons stated
            92XXVIl(B) Protections Provided and
                                                             below, the plaintiffs'motion is denied and the de-
Deprivations Prohibited in General
                                                             fendant's motion is granted.
          92k3818 Notice and Hearing
                     92k3819 k. In general. Most Cited                        I. BACKGROUND
Cases                                                                       A. Factual Background
   Due process requires both notice and a mean-                   Scott Detgen (" Detgen "), Juanita Barazza
ingful opportunity to be heard. U.S.C.A.                      ("Barazza"), Brandon Doyel ("Doyel"), and Joshua
Clonst.Arnencl, 14,                                           Vargas ("Vargas") (collectively, the "plaintiffs")
                                                              bring this suit because the defendant, Dr. Kyle
It2l Health      1931¡   Qa460
                                                              Janek ("Janek"), acting in his offrcial capacity as
198I1Health                                                   the Executive Commissioner of the Texas Health
                                                              and Human Services Commission ("HHSC"), and




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his agents, the Texas Medicaid and Healthcare Part-              (bedroom, bathroom, and stairway),      Id. The pro-
nership    ('TMHP') and Superior Health          Plan,           vider specifically identified a ceiling lift known as
denied the plaintiffs' claims for Medicaid benefrts              the "Roomer 5200," which moves along a track that
for a particular type of ceiling lift, an item of med-           nrns across the ceiling and allows the user to move
ical equipment used to transfer a patient to and                 from bedroom to bathroom or other designated loc-
from bed, bath, wheelchair, and other surfaces.                  ations in the home without additional transfers. /d,

                *749
                                                                 fl l0 at 84.
                   1. Scott Detgen
    Detgen is a 28 year olcl resident of Rockwall                      On October 26, 2010, United Rehab Special-
County, Texas. See Second Amended Complaint                      ists, Inc., the provider of the Roomer 5200, submit-
("Compf aint") T 11 (docket entry 25); Plaintiffs'               ted a request for prior authorization of the recom-
Sealed Appendix in Support of Motion for Sum-                    mended ceiling lift to TMHP. /d. Exhibit 28 at
mary Judgment ("Plaintiffs' Sealed Appendix 1"),                 86-92. On October 29,2010, TMHP issued a denial
Ex, 27 Detgen Affidavit ("Aff,") fl 5 at 83 (docket              notice that stated, in relevant part:
entry 42), He receives Supplemental Security In-
come ("SSI") due to his disability and is categoric-               You have asked for an overhead lift system for
ally-eligible for the Texas Medicaid program. See                  your home. An overhead lift must be attached to
Complaint fl I l, Detgen was diagnosed with cereb-                 the ceilings in your home. Attaching the lift to a
ral palsy at birth and has numerous medical condi-                 ceiling is a structural change to your home.
tions including quadriplegia, legal blindness,                     Equipment that requires a structural change to the
seizure disorder, severe contractures, and a history               home is a home modification. Texas Medicaid
of hip dislocation, Plaintiffs' Sealed Appendix 1,                 does not receive federal financial participation
Ex. 27 Detgen Aff, 1T 2 at 83. He is incontinent ofl               for home modifications because home modifica-
bowel and bladder and is dependent upon his care-                  tions are not listed as Medicaid benefits under
givers to meet his personal care needs, Id. \134 at                Section 1905a of the Social Security Act, Be-
83. He is 5 feet 2 inches tall and weighs approxim-                cause Texas Medicaid does not get federal finan-
ately 95 pounds. Id. n 5 at 83. Detgen is unable to                cial participation for home modifications your re-
                                                                   quest cannot be approved.
walk, bear weight, sit independently, or assist with
repositioning or transferring, and he must be manu-
                                                                     Id, Exhibit29 at93-94.
ally transferred by one or both of his parents from
his bed to the floor, to and from the bathtub, and to                A Medicaid fair hearing was requested on Det-
a stair lift that is used to move him between the first          gen's behalf on November 15, 2010, to challenge
and second floors of his house, Id. nn 4,6 at 83.                TMHP's application of this policy exclusion to Det-
These transfers are necessary for Detgen to main-                gen's request. Id. Ex.27,Detgen Aff. fl 15 at 84.
tain his hygiene and to prevent skin breakdown. Id,              The hearing was held on April 13,2011, before an
fl3at83.                                                         HHSC hearing officer. The hearing decision was is-
                                                                 sued by HHSC on August 25,201 1, and concluded
    To assist with the process of transfers, Det-
                                                                 that "TMHP correctly denied Appellant's request
gen's mother contacted a lifting specialist with a
                                                                 for an overhead lift system" in accordance with
Medicaid-enrolled equipment provider to find a pa-
                                                                 agency policy. Id. Ex.30 at 95-l I 1.
tient lift that would best alleviate Detgen's total de-
pendence on caregivers for transfers. Id. \ 9 at 84.                         *750 2. Juanita Barraza
A ceiling lift was identified as the type of lift that               Banaza is a 45 year old Medicaid recipient in
could meet Scott's transfer needs in the three loca-             the state of Texas. Id. Ex.3l, Villareal Aff. fl 3 at
tions of his home for which transfers were required              112. She has a history of long-standing medical




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conditions and disabilities, beginning at age 2 when           quoted above from its letter to Detgen. Id, F.x.33 at
she contracted nreasles and sustained brain damage.             127. A Medicaid fair hearing was requested on Bar-
Id. As a result of this, Barraza lost the ability      to      raza's behalf in March 201 I to challenge the applic-
walk and talk and was later diagnosed with a signi-            ation of HHSC's policy to Barraza's prior authoriza-
ficant intellectual disability, 1d, Several years later,       tion request for a ceiling lift. Id. Ex. 31 Villareal
she regained the ability to walk and continued to be           Aff. I 11. The hearing was held on July 17,2071,
ambulatory, albeit with a somewhat impaired gait.              and a decision was issued on August 31,2011. Id,
Id. ln 201'0,FNl Bu..uru experienced a number of               'lTlJ 11-12. The hearing offrcer issued a single con-
ischenric strclkes thot left her completely non-               clusion of Iow, stating that:
ambulatory; she was subsequently diagnosed with
paralysis due to cerebral atrophy. Id. I 4 at ll2.               The Texas Medicaid Provider Procedure Manual
                                                                 instructs home health providers to obtain prior
           FNl. The affidavit appears to contain a ty-           authorization for all durable medical equipment;
           pographical error that states Barraza's               moreover, as a state-contracted provider of home
           strokes occurred in 2012. However, given              health services United Rehab Services must fol-
           the timeline implied by the rest of the affi-         low the most current instructions issued by the
           davit, the court will assume that the                 TMHP regarding requests for durable medical
           plaintiffs' summary judgment motion iden-             equipment. In this instance, United Rehab Ser-
           tifies the correct year of the strokes as             vices failed to follow the most current instruc-
           2010. See Plaintiffs' Memorandum in Sup-              tions issued   in   Texas Medicaíd Bulletin 232
           port of Motion for Summary Judgment                   which specifically stated that "patient lifts requir-
           ("Plaintiffs' Motion") at 7 (docket entry             ing attachment to walls, ceilings, and floors"
           40).                                                  were not a çovered item of Texas Medicaid bene-
                                                                 fits; therefore, the TMHP denial was correct.
    Barraza lives at home with her mother who is
her primary caregiver. fd, n 2 at ll2. Following                   Id.Ex.34 at 143 (emphasis in original).
Barraza's return home from hospitalization in late
2010, and after Villareal's assessment that the floor                            3. Brandon Doyel
liftthe hospital had ordered could not be used                     Doyel is a 35 year old Texas resident and
safely, a lifting specialist with a Medicaid-enrolled          Medicaid recipient, born prematurely and, at 18
provider met with Barraza and her mother. 1d. Jlu              years old, diagnosed with quarf iplegia, secondary
7-8 at 112. The purpose of the meeting was to de-              to cerebral palsy. Id. Ex. 35, Doyel Aff. l2 at 145.
termine a lifting solution that would best address             As a result of his medical condition, Doyel is un-
Barraza's transfer needs, given her complete de-               able to walk and has used a power wheelchair for
pendence on her caregiver during transfers to and              mobility since he was 4 years old. Id. *751 Doyel is
from her bed and bath and the physical limitations             5 feet l0 inches tall and weighs approximately 170
of her living space. Id, fl 8 at 1 12. A ceiling lift was      pounds. Id. n3.
identified as an appropriate solution for safely
                                                                    Doyel lives alone and requires a3sistance with
transferring Barraza both in and out of bed and
                                                               activities of daily living from personal care pro-
bath.Id.
                                                               viders, including physical assistance with all trans-
    In February 2011, a request for prior avthoriza-           fers throughout the day. Id, n 4, Doyel's daily trans-
tion of a ceiling lift was submitted to TMHP on                fer needs include transfers from bed to wheelchair,
Barraza's behalf, Id. Ex.32 at 114-123. On Febru-              wheelchair to toilet, wheelchair to bathtub, and
ary    lI,20ll, TMHP denied Barraza's request for a            wheelchair to standìng frame. Id. These numerous
ceiling    lift, using precisely the same language             transfers are performed manually by Doyel's per-




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sonal care providers, Id. Doyel has taken steps to            Id.Yargas is 5 feet 6 inches tall and weighs approx-
reduce his daily number of transfers, including the           imately 140 pounds, 1d. His mother or father manu-
use of a catheter to avoid transfers to the toilet. 1d.       ally transfer him when necessary, because space
tl 7. He also has foregone the use of a "stander" on          limitations in his bedroom and bathroom prevent
a daily basis, because his care providers cannot              use of a floor lift. 1d. He has apparently previously
safely transfer him into the device. .Id.                     been injured during transfers. /d. After an extended
                                                              hospitalization in the summer of 2011, a home
    In December 2010, a lifting specialist with       a       health agency met with Vargas and his mother to
Medicaid-enrolled provider met with Doyel to de-              discuss his daily nursing and pcrsonal carc nccds.
termine a lifting solution that would best address            Id.; see ø/so Plaintiffs' Motion at 12. The agency re-
his transfer needs. Id, fl 8. A ceiling lift was identi-      ferred the Vargases to a Medicaid-enrolled provider
fied as an appropriate solution for transferring              to  assist with determining an appropriate lifting
Doyel throughout the day. Id, In early February               solution for Vargas. Id. A, ceiling lift was identified
2011, a request for prior authorization of a ceiling          as the only patient lift that would effectively meet
lift was submitted to TMHP on Doyel's behalf , Id, \          Vargas's transfer needs. 1d.
10 at 146. On February 9, 2011, TMHP denied
Doyel's request, using precisely the same language                 In October 2011, a request for prior authoriza-
as in its denial of Detgen's request, quoted above,           tion for a ceiling lift was submitted on Vargas's be-
Id. Ex. 37 at 160. On April 11,2011, a Medicaid               half. Plaintiffs' Appendix I Ex. 39 at 167. On Octo-
fair hearing was requested on Doyel's behalf, to              ber 27,2011, the roquest was denied on the basis of
challenge TMHP's denial of the request for a ceil-            the same policy under which Detgenrs, Barraza's,
ing lift. Id. Ex. 35 f I I at 146. The hearing was            and Doyel's requests had been denied, Id. Ex. 40 at
held on July 20,   20lL Id. On March 7,2072, the              179-81. On November 30,2011, Vargas was added
hearing offrcer issued a decision upholding TMHP's            as a plaintiff in this suit. See First Amended Com-
denial, finding the ceiling lift was an "expense that         plaint*752 'lf 1 (docket entry l5). His request for a
is not a benefit of Home Health services," Id. Ex.            ceiling lift was subsequently granted, not under
38 at 164-65. The hearing officer relied on TMHP's            Medicaid's home health benefit provisions but un-
policy exclusion of lifts requiring attachment to             der the home and community-based waiver services
walls, ceilings, or floors.   1d.                             provisions discussed below, See Plaintiffs' Motion
                                                              at 13. These waiver services are subject to annual
                   4. Joshua Vargas                           and lifetime cost caps; thus, the inclusion of the
    Vargas    is a 27 year old Texas resident and             ceiling lift in Vargas's budget for these services
Medicaid recipient diagnosed with Duschenne Mus-              may in the future prevent him from receiving other
cLrlar Dystrophy at age 6. Id. Ex. 39 at 168-170,             benefits under the waiver provisions. Id.
176-78; see also Plaintiffs' Motion at 11. Due to
the progressive nature of this condition, Vargas                           B. Procedural Background
uses a custom power wheelchair for mobility and                     The plaintiffs Detgen andBarraza filed a com-
relies on   a ventilator to assist with breathing.             plaint against Thomas Suehs (at that time the Exec-
Plaintiffs' Appendix 1 Ex, 39 at 168-170, 176-78.              utive Commissioner of HHSC) on October             31,
In addition, Vargas has severe scoliosis and con-              2011, alleging that Texas Medicaid's policies are in
tractures in his upper and lower extremities. 1d,              violation of the Medicaid Act and the Americans
This complicates the process of manual transfers in            with Disabilities Act ("ADA") and that they ( Det-
and out of his bed and wheelchair and into the                 gen and Banaza) were denied due process in viola-
bathtub. Id. Yargas has a history of decubiti, which           tion of the Fourteenth Amendment and the fair
puts him at high risk for ongoing skin breakdown,              hearing provisions of the Medicaid Act. S¿e Com-




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plaint'lftf 61-71 (docket entry l), On November 30,         vice Companv,         39   I   U.S. 253, 2tìtì-89, 88    S.Ct.
2011, the plaintiff Vargas was added to the litiga-          1s7   s, 20 L.Ed.2d 569 ( r968)).
tion in the plaintiffs' amended complaint. ,lee First
Amended Complaint. On April 13, 2012, the                               FN2. Disposition of a case through sum-
plaintiff Doyel was added to the litigation in        a                 mary judgment "reinforces the purpose of
second amended complaint. ,See Second Amended                           the Rules, to achieve the just, speedy, and
Complaint. In all other relevant respects, particu-                     inexpensive determination of actions, and,
larly with regard to the claims alleged against                         when appropriate, affords a merciful end to
Texas Medicaid's executive commissioner, this                           litigation that would otherwise be lengthy
second amended complaint mirrors the initial com-                       and expensive." Fot'ttenot v. Upiohn Cont-
plaint. The defendant filed an answer to the second                    puny,780l'.2d 1190,           1197 (5th Cir.l986).

amended complaint on April 26,2012. See Defend-
                                                                When evaluating a motion for summary judg-
ant's Answer to Second Amended Complaint
                                                            ment, the court views the evidence in the light most
(docket entry 28). On October 7,2012, the parties
                                                            favorable to the nonmoving *753 party. Id, ati255,
flrled the instant motions for summary judgment.
                                                             106 S.Ct. 2505 (citing Adickes v. S.H. Kress &
                    II. ANALYSß                             Company,398 U.S. 144,158-59,90 S.Ct. 1598,26
          ,\, Summary Judgment Standard                     L,F.d.2d 142 (1910)), However, it is not incumbent
     Summary judgment is proper when the plead-             upon the court to comb the record in search ofevid-
ings, depositions, admissions, disclosure materials         ence that creates a genuine issue as to a material
on file, and affidavits, if any, "show[ ] that there is     fact. See Mulacara v. Garber, 353 t".3d 393, 405
no genuine dispute as to any material fact and the          (5th Cir,2003). The nonmoving party has a duty to
movant is entitled to judgmen!_-a_s_a matter of law."       designate the evidence in the record that establishes
FED. R. CtV. P. so(a), (ãXr).FN2 A fu.t is materi-          the existence of genuine issues as to the material
al if the governing substantive law identifies it as        facts. Celote.r Corporalion v. Calrelt, 417 U.5. 317 ,
having the potential to affect the outcome of the           324, 106 S.Cr. 2548, 9I L.Ed.2d 265 (t986).
suit. Ander,çon v. Liberly Lobby, Inc,,4l7 U.5.242,         "When evidence exists in the summary judgment
248, t06 S.Cr. 2505, 91 L.Ed.zd 202 (198ó). An is-          record but the nonmovant fails even to refer to it in
sue as to a material fact is genuine "if the evidence       the response to the motion for summary judgment,
is such that a reasonable jury could return a verdict       that evidence is not properly before the district
for the nonmoving party." Id.; see also Bctzan ex           court." Malctcctt'ct,353 F.3d       a1   405.

rel. Bezan v. Í{iclalgt¡ County, 246 F,3d 481, 489
                                                                            þ.   _Evide ntiary O bj ec t ions
(5th Cir.2001) ("An issue is 'genuine' if it is real                        FN3
                                                                   HHSC             raises several objections       to   the
and substantial, as opposed to merely formal, pre-
                                                             evidence on which the plaintiffs rely             to
                                                                                                         support
tended, or a sham."). To demonstrate a genuine is-
                                                             their motion for summary   judgment.   It objects to
sue as to the material facts, the nonmoving party
                                                             some of the testimony offered through the affidavit
"must do more than simply show that there is some
                                                             of Curtis Merring, on the grounds that such testi-
metaphysical doubt as to the material facß." Mal-
                                                             mony is either unreliable opinion testimony or
sushita ElecÍric lnduslrial Company v, Zenitlt Ra-
                                                             hearsay. See Defendant's Brief in Support of Re-
clio Corporotion, 4T5 tJ.S. 574, 586, 106         S,Clt.
                                                             sponse in Opposition to Plaintiffs'Motion for Sum-
1348, 89 L.Ed.2d 538 (1986). The nonmoving party
                                                             mary Judgment at 74 (docket entry 47). The de-
must show that the evidence is sufficient to support
                                                             fendant also objects on hearsay grounds to state-
the resolution of the material factual issues in his
                                                             ments in the affidavits of L.C. Detgen, Yolanda
favor, And<:r,son, 47J U,S, at 249, 106 S,Ct. 2505
                                                             Villareal, and Brandon Doyel, Id, at 4. Because the
(citing Fir',st Natk¡nal Bank of Arizonq v. Cities Ser-
                                                             court did not find it necessary to rely on this evid-




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ence in support of its decision, these objections are             Wright v. City of' Rctanoke Redeveloptnenl anct
overruled as moot. See Continenlttl Cu,sualty Cont-               Housing Authority,479 U.S. 418, 423, 107 S,Ct.
pany v. Sl. Paul Fit'e         &
                            Mctrinc Insurance Com-                766,93 r..Ed,2d 781 (1987).
pany, 2006 WL 984690 at      *l n. 6 (N.D.Tex. Apr.
14, 2006) (Fitzwater, J,) (overruling as moot objec-                  First, the court notes that there is no mention in
tions to evidence not relied on by the court in its               the statute of a potential defendant's "violation" of
summary judgment decision).                                       his or her legal obligations.*754 Rather, the statute
                                                                  on its face sets up a liability scheme for the
            FN3, Though Dr, Kyle Janek is the named               "deprivation of any rights ..." of a potential
            defendant, because the suit is against him            plaintiff, whether such a deprivation constitutes a
            in his official capacity as the executive             "violation" of the defendant's legal obligations or
            commissioner       of   HHSC, the court will          not. 42 U.S.C. $ 1983. Second, the Wrigltl case
          refer to the defendant throughout               as      does not address the novel argument HHSC ad-
          "HHSC," See, e.g., Koenning v. Suehs, 897               vances   in this litigation. Despite the      language
            F.Supp.2d 528, 531 n. 1 (S.D.Tex.2012).               quoted by HHSC, it is not at all clear that the Court
                                                                  intended to fashion an initial threshold requirement
                  C. SecÍion 1983                                 that the plaintiff in a $ 1983 suit show that the de-
     42 U.S.C, $ 1983 states that                                 fendant "violated" one (or more) of the defendant's
                                                                  legal obligations. It is true that in many cases it will
   [e]very person who, under color of any statute,                be natural to speak of a defendant's deprivation of
   ordinance, regulation, eustom, or usage, of any
                                                                  the plaintiffs rights as such a "violation." But HH-
   State or Territory or the District of Columbia,
                                                                  SC cites no authority that would support this court
   subjects, or causes to be subjected, any citizen of
                                                                  imposing a threshold requirement in g 1983 suits of
  the United States or other person within the juris-
                                                                  showing that a defendant's actions can be character-
  diction thereof to the deprivation of any rights,
                                                                  ized as the "violation of a [defendant's] legal oblig-
  privileges, or immunities secured by the Consti-
                                                                  ation." Rather, the inquiry courts generally pursue
  tution and laws, shall be liable to the party in-
                                                                  is whether the defendant's actions have deprived the
  jured in an action atlaw, suit in equity, or other
                                                                  plaintiff of a right conferred on the plaintiff by law.
  proper proceeding for redress.
                                                                  See, e,g., Wright, 479 tJ.S. at 423-32, 107 S.Ct.
     42 U.S,C. $ 1983                                             766 (examining whether the Housing Act and the
                                                                  Brooke Amendment evince congressional intent to
     |l   The statute by its terms authorizes private             foreclose a {i 1983 remedy and create individual
suits against government officials for                   the      rights enforceable in a $ 1983 action).
"deprivation of any rights, privileges, or immunit-
ies," Id. HHSC makes the creative suggestion that                     HHSC also relies on the Supreme Court's
                                                                  Gonzaga decision for its argument, see Defendant's
"a section 1983 lawsuit cannot get off the ground
unless a litigant fìrst shows that a state officer has            Motion at 15-16, but all that Gonzuga held was that
violated a federal legal obligation." See Defendant's             where a federal statute does not unambiguously cre-
Brief in Support of Motion for Summary Judgment                   ate an individual "right" in a plaintiff, no Seclion
("Defendant's Motion") at l3 (docket enlry 37-1),                 1983 suit can be maintained. See Gonzaga Uni-
It cites lVright v. Cit¡, o.f Roonolce for this sugges-           versity v. I)oe, 536 U.S. 273,283, 122 5.Ct,2268,
                                                                  153 L.Ed.zd 309 (2002). The Court in Gonzaga fo-
tion, which states that " Maine: v. Tltil¡outr¡|, 448
r.J,s, r, r00 s.ct, 2502, 65 L.Ed.2d 55s (1980),                  cused on whether certain provisions of the Family
held that        1983 was available to enforce violations         Educational Rights and Privacy Aú of 1974
            ss
of   federal statutes     by   agents   of the State."   See
                                                                  ("FERPA") contain "rights-creating language" and




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whether those provisions have an "aggregate" or an             is particularly true where the Medicaid regulations
"individual" focus. 1d at287-90, 122 5.Ct.2268.                clarify that the right is coextensive with the right
                                                               articulated in Goldberg v. Kelly, 397 U,S. 254,90
     [2][3] Here, the only claims the plaintiffs bring         s.cr. 101t, 2s L.F.d.2d 287 (1970). 42 C.F.R. fi
that are rooted in $ 1983 are claims of violations of          431.205(d). Courts have vast experience in apply-
due process under the Fourteenth Amendment and                 ing the Goldherg test of due process. And finally,
the Medicaid Act. See Complaint tlt[ 97,                 94.   the statute imposes a mandatory obligation on the
Clearly, the Fourteenth Amendment confers an in-               states, since they "must" provide a faft hearing. 42
dividual right enforceable in a $ 1983 snit. See,              U.S,C. $ 1396a(aX3). Thc Medicaid fair hearing
e.g,, Arnaud v, Oclom,870 F.2d 304,307 (5th Clir,),            provision thus meets        all three of the Bles,sing
cert. denied, 493 U.S. 855,        I   l0   S,Ct. 159,   107   factors,
l..Ed.2d I 1 7 (l 989). The language of the fair hear-
ing provision of the Medicaid Act also unambigu-                   HHSC's threshold argument that all of the
ously confers individual rights. 42 U.S,C.                 $   plaintiffs' claims can be disposed of on a finding
1396a(aX3) states that                                         that the defendant violated "no legal obligation"
                                                               fails.
  [a]   State plan   for medical       assistance musl ...
  provide   for granting an opportunity for a fair                                D. Supremacy Clause
  hearing before the State agency to any individual                [a][5] The plaintiffs rely on the Supremacy
  whose claim for medical assistance under the                 Clause to support their claim that HHSC's rules,
  plan is denied or is not acted upon with reason-             policies, and practices conflict with the "reasonable
  able promptness.,..                                          standards" and "amount, duration, and scope" pro-
                                                               visions and regulations of the Medicaid Act and are
     (emphasis added). The language is mandatory,              thus preempted, See Complaint !f 88, The court
the provision  contains rights-creating language, and          notes as an initial matter that it is clear from the
there is an individual focus, This is enough to show           case law that "the federal courts have jurisdiction
that, in conformity with Gonzøga, the statute unam-            under 28 U.S.C. {i l33l over a preemption claim
biguously confers a private individual right that              seeking injunctive and declaratory relief." Plannecl
may be enforced under $ I 983.                                 Parenîhood of' Houston and Southeasl T'exas v.
                                                               Sanchez,403 F,3d 324,331 (5th Cir.2005). In addi-
    The court also notes that the fair-hearing provr-
                                                               tion, the Fifth Circuit has held that the Supremacy
sion easily satisfies the three-factor Bles,sing test,
                                                               Clause provides plaintiffs with a valid implied
namely, (1) whether Congress intended that the
                                                               cause of action. Id. at 333. Thus, none of HHSC's
provision in question benefit the plaintiff; (2)
                                                               threshold arguments will prevent the court from
whether the right protected by the statute is so
                                                               considering the merits of the plaintiffs' Supremacy
"vague and amorphous" that its enforcement would
                                                               Clause claim. The question the court must proceed
strain judicial competence; and (3) whether the stat-
                                                               to answer is whether there is conflict between the
ute unambiguously imposes a binding obligation on
                                                               Medicaid Act's provisions (and regulations imple-
the States. See Blet;sing v, Freestone, 520 tJ,S. 329,
                                                               menting those provisions) and HHSC's rules,
340-4t, 117 S.Cr. 1353, 137 L.Ed.2d 569 (1991).                policies, and practices with respect to the ceiling
Congress clearly intended that any individual
                                                               lift at issue in this case, such that HHSC's rules and
whose claim for Medicaid benefits was denied                   policies are preempted.
would be benefitted by the fair hearing provision.
The right to a *755 fair hearing that is protected by                     E. Medicaid Act and HHSC's policies
the statute is not so vague and amorphous that its                                  l. Legalfrømework
enforcement would strain judicial competence. This                      Medicaid is a cooperative federal-state program




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that provides medically necessary health care to            type of illness, or condition," 42 C.F.R.            S

low income families and individual with disabilit-          440.230(b)-(c).
ies. See 42 U.S.C. $ 1396 et ,seq, The Centers for
Medicare & Medicaid Services ("CMS") adminis-                   The State plan must, among other things, spe-
ters the federal program, and participating states are      cify the categories of services available to eligible
required to designate a single state agency to ad-          beneficiaries. 42 U.S.C. $ 1396a(a). One such cat-
minister their Medicaid program. See 42 U.S,C. $            egory is home health services, which includes items
 1396a(a)(5). HHSC is the single state agency re-           known as durable medical equipment ("DME'). 42
sponsible for administering Texas's Medicaid pro-           U.S.C, $ 1396a(aXl0XD); 42 C,F.R. $ 440.70. Fed-
gram. See Defendant's Appendix in Support of its            eral statutes do not define DME, but individual
Motion for Summary Judgment ("Defendant's App.              state plans often provide specific guidelines for
l"), Declaration of Robert Perez ("Perez Decl.") t[ 3       what constitutes covered DME. Some states, in-
at 1-2 (docket entry 38).                                   cluding Texas, identify a list of pre-approved DME
                                                            items. See, e.9.,           1 'I'ex. Admin. Code $
    Title XIX of the Social Security Act identifies         35a,1039(a)(4).   In   response   to a Second Circuit
a set of services that all states that participate in       opinion, DeSario       v.
                                                                                    Thoma,s, 139 F.3d 80 (2d
Medicaid must provide to eligible persons, includ-          Cir.1998), cert, granted, judgment vacatedby Slek-
ing but not limited to inpatient and outpatient hos-        i,s v, Thoma,s, 525 U.S. 1098, 119 S.Clt. 864, 142
pital services, Early Periodic Screening, Diagnosis,        L.Ed.2d 767 (1999), addressing the required extent
and Treatment ("EPSDT") services for persons un-            of DME coverage, CMS's predecessor agency (the
der age 21, physician services, home health care,           Health Care Financing Administration) wrote          a
and pregnancy-related services. See 42 U.S.C. $             September  4, 1998 letter providing guidance clari-
1396a et ,req. Title XIX also requires that services        fying its position on DME coverage under Medi-
provided under a Medicaid state plan be: (1) avail-         caid (the " DeSario letter"). Letter from Sally K.
able statewide; (2) the same or comparable for all          Richardson, Director of Centers for Medicaid and
individuals eligible for the program; and (3) avail-        State Operatlons, September 4, 1998, available at
able to individuals determined financially eligible         http:// downloads. cms, gov/ cmsgov/ archived-
through a single standard for determining income            downloads/ SMDL/ downloads/ SMD 090498. pdf
and resource eligibility. Id. lf a state elects to parti-   (last visited Jan. 29,2012). The letter advised that
cipate in Medicaid, it creates and submits for feder-       states limiting DME coverage must meet three con-
al approval a State Medicaid Plan ("the            State    ditions:
plan"). 1d. In order to be eligible for continuing fed-
eral *756 financial support for its Medicaid pro-             (1) The process for deciding coverage must      use

gÍam, a state must comply with the State plan as ap-          reasonable and specific criteria that do not arbit-
proved by CMS. 42 U.S.C. $ 1396c. A state's dis-              rarily exclude items based solely on a type of ill-
cretion in the administration of its plan is further          ness or condition;

limited by the requirement, set forth in $                    (2) The State's process and criteria, as well as its
1396a(a)(17), that its plan "include reasonable
                                                              list of pre-approved DME items, must be publicly
standards ... for determining eligibility for and the
                                                              available; and
extent of medical assistance under the plan," By
regulation, each service "must    be sufficient in            (3) Beneficiaries must be informed of their right
amount, duration and scope to reasonably achieve              to a fair hearing to determine whether an adverse
its purpose," and a state "may not arbitrarily deny           decision is contrary tolaw,Id,
or reduce the amount, duration, or scope of a re-
quired service ... solely because of the diagnosis,             Texas Medicaid provides guidance as to the ex-




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tent of its DME coverage. The Texas Medicaid Pro-            also provides administrative hearings to claimants
vider Procedures Manual ("TMPPM") states:                    who are denied items of DME, and the regulations
                                                             governing these hearings require hearing officers to
  Texas Medicaid defines DME as: Medical equip-              sustain TMHP's denial if it is supported by agency
  ment or appliances that are manufactured to with-          policy. Id. $ 3s1.23(e).
  stand repeated use, ordered by a physician for use
  in the home, and required to correct or ameliorate                            2. Application
  a client's disability, condition, or illness ,.. To be         [6]  The plaintiffs argue that the ceiling lift at
  reimbursed as a home health benefit: ... The re-           issue in this case clearly meets Texas Meclicaid's
  quested equipment or supply must be medically              definition of DME. See Plaintiffs' Memorandum in
  necessary, and Federal Financial Participation             Opposition to Defendant's Motion for Summary
  (FFP) must be available,                                   Judgment ("Plaintiffs' Response") at    1   l-13 (docket
                                                             entry 48). Consequently, they argue, HHSC's cat-
     Texas Medicaid Provider Procedures Manual         $     egorical exclusion of the lift violates the DeSctrio
2.2.2.                                                       letter's guidance, because the DaSario letter's criter-
                                                             ia (referenced above) are supposed to be applied to
    Section 2.2.24    of the TMPPM further states
                                                             any individual request for an item of DME, Id. at 9.
that Texas Medicaid cannot reimburse a beneficiary
                                                             A categorical exclusion thus violates the individual-
"for any service, supply or equipment for which
                                                             ized inquiry the letter requires. Id. Furthermore, the
FFP is not available." Id. at ç 2.2.24. Because of
                                                             plaintiffs argue, in prior case law, states' categorical
this, Texas Medicaid Home Health Services cover-
                                                             exclusions of items of DME have never been up-
age under the State Plan does not include, among
                                                             held as consistent with the Medicaid Act or the.De-
other things, "fs]tructural changes to homes, domi-
                                                             ,Sr¡rlo letter's requirements, Se¿ Plaintiffs' Memor-
ciles, or other living arrangements," as those items
                                                             andum in Support of Motion for Summary Judg-
are not eligible for FFP. 1d. Furthermore, section
                                                             ment ("Plaintiffs'Motion") at 2 (docket entry 40).
2.2.14.26 of the TMPPM states that "[p]atient lifts
requiring attachment to walls, *757 ceilings, or                  HHSC argues that the DeSario letter's require-
floors ,.. are not a benefrt of Home Health Seryiçes"        ments do not apply to ceiling lifts, because both
under Texas Medicaid. Id. at $ 2,2,14.26. The                State and Federal Medicaid guidance and policies
plaintiffs' requests for the particular ceiling lift at      show that ceiling lifts are considered to be "home
issue in this case were denied based on this policy.         modifications" and not DME. ,lee Defendant's Mo-
                                                             tion at 20, Furthermore HHSC argues that, even if
    Texas Medicaid requires claimants to obtain
                                                             ceiling lifts are considered DME, the Texas policies
"prior authorization" for most DME items in order
                                                             sufficiently comply with the DeSiario letter. Id, at
to be reimbursed through Medicaid. See I "l'ex. Ad-
                                                             20-2t.
min. Code $$ 354.1035(bXl) and 354,1039(a), The
Texas Medicaid and Healthcare Partnership                        HHSC also contends that it cannot be in viola-
("TMHP") is an agency with whom HHSC con-                    tion of the Medicaid Act's requirements where its
tracts to administer aspects of the Medicaid pro-            categorical exclusion of a purported benefit (DME
gram, including the prior authorization process.             or not) is in accord with explicit and implicit guid-
See, e.g., Koenning v. Suehs, 897 F.Supp.2d 528,             ance from CMS that FFP will not be available for
533-34 (S.D.Tex.2012). TMHP makes an initial                 that purported benefit, Id. at 9, 18. HHSC points
prior authorization determination in response to a           out that the most recent explicit guidance it has re-
request for an item of DME. When a request is                ceived from CMS about ceiling lifts is that FFP is
denied, TMHP must send a notice of denial to the             unavailable for them. Id. lt also points out that
claimant. I 'fex. Adnin, Code $ 357.11(b), HHSC              CMS has implicitly accepted recent Texas plans




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that: (l) categorically exclude ceiling lifts from the         must be provided with an augmentative communic-
"home health benefit" portion of its Medicaid pro-             ative device, because Texas Medicaid provided
gram, but (2) provide ceiling lifts to patients under          such devices for patients under 2l years of age);
2l via the EPSDT program and to patients over 2l               IIope Medic:al Group For LI/omen v. Edwards, 63
via Medicaid's waiver services provisions. .Id. at             F.3d 418 (5th Cir,1995), cert. denied, 517 U.S,
2-6.                                                           1104, I l6 S.Cr. t319, 134 L.Ed,2d 471 (1996)
                                                               (holding that Louisiana's Medicaid restrictions on
    To this argument, the plaintiffs respond       that        abortion funding, which would not allow for Medi-
HHSC is improperly imposing an "FFP assurance"                 caid funding of abortions in cases ofrape or incest,
standard on claimants in the prior authorization               violated Title XIX); Mitchell t,. .Iohnstor¡ 701 F.2cl
process. See Plaintiffs' Response at 14. In other              33'/, 34041 (5th Clir.1983) (affirming the district
words, the plaintiffs maintain, HHSC's argument                court's finding that Texas's cutbacks in Medicaid
means a claimant will have the burden to assure                dental benefits for children violated Title XIX);
HHSC that, for any requested item of DME, FFP is               Rush v. Parhant, 625 F.2d ll50 (5th Cir.l980)
available, 1d. This, the plaintiffs argue, is too great        (holding that a Georgia Medicaid policy excluding
a burden for *758 any claimant to meet in the prior            funding for transsexual surgery would be appropri-
authorization process. .ld                                     ate if the policy was meant to exclude experimental
                                                               procedures and if transsexual surgery was determ-
    The court agrees that claimants ought not to be
                                                               ined to be such an experimental procedure), In none
required to assure HHSC during the prior authoriza-
                                                               of these cases did a state claim that it had explicit
tion process that FFP will be available for items
                                                              guidance that FFP would not be available for the
they request. However, the court is of the opinion
                                                              benefit in question. In that respect, this case ap-
that this "FFP assurance standard" is not a neces-
                                                              pears to present a question of first impression, at
sary result of accepting HHSC's argument with re-
                                                              least in this circuit.
spect to FFP availability for ceiling lifts, Rather,
the court understands HHSC to be arguing that,                      Neither party cites it, but this court finds the
where the state has explicit guidance that FFP will            rule articulated in Harri,s v, Mcll.ae to be dispositive
not be available for a particular item (DME or not),           with regard to this question. See generally Harri.s v.
the state is not required by the Medicaid Act to               McRae,448 LJ.S, 297,100 S.Ct.2671, 65 L.Ed.2d
provide such an item. Furthermore, since the state             784 (1980). There the Court considered whether
is not required to provide the item, a categorical ex-         Title XIX required a participating state to pay for
clusion is perfectly appropriate and consistent with           medically necessary abortions for which federal re-
the efficient administration of the state's Medicaid           imbursement was unavailable under           the   Hyde
program.                                                       Amendment. Id. at301 ,100 S.Ct.2671, The Court
                                                               determined that the scheme of cooperative federal-
    In   none   of the "categorical exclusion"    cases
                                                               ism Congress enacted in the Medicaid Act evinced
cited by the plaintiffs does a court address the argu-
                                                               no intent to require a participating state to shoulder
ment being advanced by HHSC here. See, e.g.,
                                                               the full costs of any health service provided in a
Koenning v, Suelts', 897 F-.Supp.2d 528, 549-50
                                                               state Medicaid plan. Id. at 308, 100 S.Ct. 2671, ln
(S.D,Tex.20 I 2) (declaring that HHSC's categorical
                                                               addition, the Court found that the Hyde Amend-
exclusion of powered wheelchairs with "standers"
                                                               ment's legislative history contained no indication
violated the Medicaid Act's "reasonable standards"
                                                               that Congress intended to shift the entire cost of
provision); Fred C. v. Te.ras Health and L[utnan
                                                               certain medically necessary abortions to participat-
Services Comntissictn, 167 F.3d 537 (5th Cir. 1998)
                                                               ing states, Id. at 310, 100 S.Ct, 2671. As the Court
(upholding a district court's summary judgment in
                                                               stated:
favor of a Medicaid claimant who argued that he




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  The cornerstone of Medicaid is financial contri-                   plaintiffs themselves solicited from a
  bution by both the Federal Government*759 and                      "senior CMS Central Office official" that
  the participating State. Nothing in Title XIX as                   indicates that FFP might be available for
  originally enacted, or in its legislative history,                 items such as ceiling lifts. ^See Plaintiffs'
  suggests that Congress intended to require a par-                  Response at 16, and Plaintiffs'Appendix in
  ticipating State to assume the full costs of provid-               Opposition   to   Defendant's Motion for
  ing any health services in its Medicaid plan.                      Summary Judgment at 51-53 (docket entry
  Quite the contrary, the purpose of Congress in                     50). At most, this communication reveals
  enacting Title XIX was to providc fcdcral finan-                   some internal disagreement at CMS on the
  cial assistance for all legitimate state expendit-                 extent of DME coverage under Title XIX.
  ures under an approved Medicaid plan.                              Texas Medicaid, however, ought not to be
                                                                     required to search out the opinion of every
      Id. at 308, 100 S.Ct. 2671                                     CMS officer with respect to the availabil-
                                                                     ity of FFP for contested items of medical
    The most apparent difference between that case
                                                                     equipment. It is entitled to rely on the
and this is that congressional intent not to provide
                                                                     guidance provided from its regional office,
funding for certain abortions via the Medicaid pro-
                                                                     since-from the briefs presented to the
gram was clearly expressed in the legislation at is-
                                                                     court-that appears to be one of the nor-
sue  in Harris, i.e,, the Hyde Amendment. Id. at                     mal procedures for obtaining opinions re-
3 10, 100 S.Ct. 2671. Here, CMS, the agency
                                                                     garding the State plan's compliance with
charged with administration of the Medicaid stat-
                                                                     the Medicaid statute.
ute, has expressed in its guidance to HHSC the
view that funding is unavailable for certain items of            [7] The rule the court employs is this: where a
DME (iqcluding ceiling lifts) via the Medicaid pro-         State has explicit guidance from CMS that FFP will
grur.FN4 Seebefend"ant's App, I at 7, 73, 26,               not be available for an item of DME, that State acts
27-28. Whether or not that view of congressional            reasonably when it categorically excludes such an
intent is correct is, ofcourse, open to question. It is     item from covorage in its Medicaid policies. This is
reasonable, however, for HHSC to rely upon the              because, as the Supreme Court has held, the Medi-
guidance of CMS as a correct expression of con-             caid Act never requires States to shoulder the full
gressional intent to limit funding for certain items        burden of the cost of services provided under the
of equipment that might otherwise meet the State's          State's Medicaid plan, See Harri,s, 448 U.S. at 308,
deflrnition of DME. The plaintiffs' dispute is thus         100 s,cr. 267 r.
not properly with HHSC, whose reliance on CMS
guidance is reasonable. See Defendant's Motion at                 The court finds that Texas Medicaid's policy
17-18. The dispute is with CMS, over whether or              categorically excluding ceiling lifts from coverage
not its guidance offers a reasonable interpretation          does not conflict with the Medicaid Act's
of the extent of the Medicaid Act's coverage of cer-         "reasonable standards" requirement, the "amount,
tain items of DME.                                           duration, and scope" regulation, or the DcSario let-
                                                             ter's guidance. It is therefore not preempted by the
          FN4. The guidance Texas Medicaid has re-           Supremacy Clause.
          ceived comes from        a regional office of
          CMS that is apparently based in Dallas and                           F. Due Process
          serves Texas Medicaid. See Defendant's                 [8][9.] The Fourteenth Amendment prevents
          App. I at 7,27-28.In their response to the         States from depriving citizens of property without
          defendant's summary judgment motion, the           due process of law. U.S. Const. Amend. XIV li 1.
          plaintiffs point   to a communication     the      This has been termed "procedural due process."




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See, e.g., Matheú).v t,. Eldridge, 424 LJ,5.319,332,         heard. Goldberg, 397 Li.S. at 267-68, 90 S.Ct.
96 S.Ct. 893,47 L.ErJ.2d l8 (1976). *760 As an ini-          1011. The plaintiffs here do not dispute that they
tial matter, the plaintiff bringing a procedural   due       were given notice of the denial of their claim for
process claim in a ben€fits case like this one must          benefits. Rather, they claim they had no meaningful
show he or she has a property interest in the benefit        opportunity to be heard, because HHSC's hearing
that has been denied, See id. "To have a property            officer was not required to consider evidence of ex-
interest   in a benefìt, a person clearly must have          ceptional circumstances that would warrant a de-
more than an abstract need or desire for it. He must         parture from Texas Medicaid policy for their indi-
have more than a unilateral expectation of it. He            vidual requests, What the plaintiffs fail to point out
must, instead, have a legitimate claim of entitle-           is that Texas provides for state judicial review of
ment to it." Board of Ragents of State College.,s v,         the lawfulness of a policy as applied to a Medicaid
Roth,408 tJ.S. 564, 577,92 S.Ct. 2701,33 L,Ed.2d             beneficiary whose claim has been denied in accord
s48 (1e72).                                                  with such policy. See Defendant's Motion at 24; 1
                                                             Tex. Adrnin. Code $ 357.703; Tex. Gov't. Code $
     The plaintiffs here cannot make out a procedur-         200r,t74(2)(D).
al due process claim, for the simple reason that they
cannot show "a legitimate claim of entitlement" to                    FN5,   It is of course   true that potential
the ceiling lift which was denied them by HHSC,                       plaintiffs have a property interest in Medi-
The contours of the plaintiffs' property interests un-                caid benef,rts that fall within the ambit of
der the Medicaid Act are clarified by CMS in its                      the statute. See, e.g., I.add v. Tltomas, 962
guidance    to HHSC that FFP is not available for                     F.Strpp. 284,289 (D.Conn. I 997).
ceiling lifts, This guidance shows that ceiling lifts
do not fall within the scope of the services provided             | 31 What process is due depends on the cir-
by the statute, There can be no "legitimate claim of         cumstances of each case. See Mathews,424U.S. aL
entitlement" to a benefit that the agency charged            334,96 S.Clt. 893. ln Goldberg, the fact that a wel-
with administration of a benefit statute has determ-         fare recipient depends for his or her continued ex-
ined is not within the ambit of that statute.                istence on the unintemrpted provision of benefits
                                                             weighed in favor of the Court demanding a robust
    [ 0] For the same reason, the plaintiffs'      due       pre-termination hearing. See Goldberg,397 U.S. at
process claims under the Medicaid Act's "fair hear-          264, 90 S.Ct, I01 1. Here, the plaintiffs' current be-
ing" provision fail. That provision, by its terms, ap-       nefits have not in any sense been terminated or re-
plies only to an individual "whose claim for medic-          duced   by TMHP's decision to deny their claim
al assistance under the plan is denied." Here, the                                           lift is not a be-
                                                             based on the policy that the ceiling
plaintiffs' claims for ceiling lifts are not claims          nefit of Texas Medicaid. Rather, the plaintiffs'
"under the plan." Indeed, CMS has provided guid-             claims for this extra benefit were denied consistent
anae to HHSC that suggests that ceiling lifts are            with HHSC's reasonable policy. The plaintiffs were
outside the plan, Thus, the plaintiffs in this case          provided notice of the denial and*761 their right to
have no claim to which the Medicaid Act's fair               a hearing, and a hearing was held. Moreover,    if   the
hearing provision applies,                                   plaintiffs were dissatisfied with Texas Medicaid's
                                                             policy as applied to them, they had the opportunity
    [11]t121 Even were the court to concludq t_hat           to challenge its lawfulness using the mechanism of
these plaintiffs did have a property interest,FN5 it         state judicial review. Under the circumstances, the
would also conclude that these plaintiffs have re-           plaintiffs have been provided with all the process
ceived all the process that was due, consistent with         that was due them,
Goldberg v. Kelly' s mandate. Goldberg requires
both notice and a meaningful opportunity to         be                         TII, CONCLUSION




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945 F,Supp.2d 746,Med & Med GD (CCH) P 304,372
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    For the reasons stated above, the defendant's
motion for summary judgment is GRANTED. The
plaintiffs' motion    for   summary judgment        is
DENIED.

    Judgment   will be entered for the defendant.

    SO ORDERED.

N.D.Tex.,20l3.
Detgen ex rel. Detgen v. Janek
945 F.Supp.2d 746, Med & Med GD (CCH)               P
304,372

END OF DOCUMENT




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