Texas Health and Human Services Commission v. Linda Puglisi

• Court: Court of Appeals of Texas
• Decided: June 16, 2015
• Docket: 03-15-00226-CV
• Status: Published

Opinion

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

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.

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

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

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

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

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

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

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

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

<>

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

http://info.sos.state.tx.us/pls/pub/readtac$ext,TacPage?sl:R&app:9&p-dir-&p-rloc:&p tl,. , 91512014 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

l'lext Jl¡ìiJe P:-evic:us Irac¡e

List of.

il01'1t I TtI^f t\iGlfTER I Tt)('i5 ,iDlllllllTfl.ûTll/E tijDt I 0t¡tll llttlll{6i I lltLi' I

http://info.sos.state,tx,gs/pls/pub/readtac$ext.TacPage?sl:R&app:9 &'p-dit:&p-rloc:&p-tl.,, 91512014 : Texas Administrative Code Page I of2

Next Rule>> <

(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

http:/iinfo,sos.state.tx,us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p-dir&p-rloc=&p tl 9lsl20r4 : Texas Adminisüative Code Page2 of2

915120L4 htç://info.sos,state.O(,usþls/pub/readøc$ext.TacPage?sl=R&apy9&p-dir-&p-rloc=&p-t1.,. : Texas Administrative Code Page I of2

NextRul*> <

(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

http://ínfo.sos.state.tx.us/pls/pub/readtac$ext,TacPage?sl=R&app:9&p-dir&p-rloc=&p-t1,. . 91512014 : 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

Ne x t P.ì qe l' r'r:r,' i ¡lu¡; l)¡r ge

List of Titles Back to List

il0tlE I TTIAS f\tGlfItR I Ttl(,15 ,lDlllllllTlÅ.tlTt ii'DE I 0l'tll l'ltillllúl I tltLI¡ I

91512014 http://info.sos,state.tx,us/pls/pub/readtac$ext,TaoPage?sl:R&app:9&p-dir:&p-rloc=&p-tl' : Texas Administrative Code Page I of6

( 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.

http://info,sos.state,tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p-dir-&p-rloc:&p-t1" ' 91512014 : 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);

http://info,sos.state,tx,us/pls/pub/readtac$ext,TacPage?sl:R&app:9&p1Ji=&p rloc=&pLl" ' 91512014 : 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

http://info.sos,state,tx,us/pls/pub/readtac$ext.TacPage?sl=R&app:9&p-dir&p rloc=&p-tl.. ' 91512014 : 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:

http://info.sos,state.tx.us/pls/pub/readtac$ext.TaoPage?sl:R&app:9&p-dir:&p-rloc:&p-t1., , 91512014 : 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;

http:i/info.sos,state,tx,us/pls/pub/readtac$ext.TacPage?sl=R&,app=9&p-dir:&p-rloc=&pJl" ' 91512014 : 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...

Next Page Prort j i)u! I)rl(lf (:l

ll0 fl E I TtIAS fltGllTtI I ffl(å! 'lDtlllllllfl,ATll,t tDt)t I (rrtll tlttIll6l I tltLt' I

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

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:

http://info,sos.state,tx,us/pls/pub/readtac$ext.TaoPage?sl=T&.app=9&'p-dirF&p-rloc:9739." 915120L4 : 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

l'i:,::; l- l'¿.¡il.l Prevíous Page

List of Titles Back to Llst

ltütlt llEiAf I{tt,iittR I Tt)(,ì5 ,iDlllfillTtlJl,TllE Lt'Ltt I 'lrtll tlttlllr.,s I llttf I

http://info,sos,state.tx,us/pls/pub/readtac$ext.TacPage?sl:T &,app:9&p-dirF&p 9lsl20l4 -rloc:9739 : Texas Administrative Code Page 1 of4

Next Rule>> <

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

http://info,sos.state.tx.us/pls/pub/readtac$ext,TacPage?sl=R&app:9&p-dir-&p-rloc:&p-tl" ' 91512014 : 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;

http://info.sos,state,tx.us/pls/pub/readtac$ext.TacPage?sl=R&app=9&p-dir:&p rloc:&p-tl.. , 91512014 : 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.

http://info,sos.state.tx,us/pls/pub/readtac$ext,TacPage?sl=R&app:9&p-dir-&'p-tloc:&p-tl., , 91512014 : 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

ljrlLili!\;li lirl i,"1' lt,f i:'ìi,l ii[,1 I ill];ii ll l I

htç://info.sos.state,tx,us lplslpublrcadtao$ext.Tac,Page?sl=R&app=9&,p-dir&p-rloc=&pJl,., 91512014 : Texas Adminishative Code Page I of 1

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

http://info.sos.state.tx.us/pls/ptrb/readtac$ext.T acPage?sl=R&app:9&p-dir&p-rloc:&p-tl.. , 91512014 : Texas Administrative Code Page I of2

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;

htþ://info,sos,state,tx.us/pls/pub/readtac$ext.TacPage?sl=R&app:9&p-dir&p-rloc=&p-tl'. , 91512014 : 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

llr.tll I I TIilj,5 titr,liTtli I Ttl,lf ¡1lll{llTtr.,l]lft t itit I il|rtll tlttÌllit.! I llt'r I

http://info.sos,state.tx,us/pls/pub/readtac$ext.TacPage?sl=R&app:9&p-dir-&p-rloc:&p-tl.. . 91512014 Texas Administrative Code Page I of I

Rul*> <(Prev Rule Texas Administrative Code Next

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

llrrf r I.It¡,Àj t{ir, jTtt{ I itll,5 ,ÌtJlllhllltlr'filt l.ll[,t I i]ltll llttIlllrr\ I lllLt I

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

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

ItrJ11t lltirì5 llEGlitttl I T[[ii iDllllll!1i1.4'llllt tC't1t I JPtll t1ttllli6! I ltt!l' I

http:/iinfo,sos.state.tx.us/pls/pub/readtac$ext,TacPage?sl:R&app=9&p-dir&p-rloc=&p-tl. .' 91512014 : Texas Administrative Code Page I of2

ADMINISTRATION TEXA,S HEALTH AND HUMAN SERVICES COMMISSION HEARINGS UNIFORM FAIR HEARING RULES Notice and Continued Benefits

(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'

http://info.sos.state,tx.us/pls/pub/readtac$ext.TacPage?sl=R&app:9&p-dir&p-rloc:&p-t1,., 915120t4 : 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

ll(lllt I Ili/ri Il:i, ilt|ì I it;('l ll|illjl!lli.i'Tl!i I lrtl'I I illtll lftl¡lh(,Î I iili[ |

http://info,sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=R&øpp:9&p-dir&p-rloc=&p-t1,,. 91512014 : Texas Administrative Code Page I of2

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;

http;//info,sos.state,tx,us/pls/pub/readtac$ext,TacPage?sl:R&app=9&p-dir&p-rloc:&p-tl. ', 91512014 : 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

lt0t'lt llEIA5 ßtGlSTtR I ftl(¡5 'lDllll{llIftA.Il\rE L0t)t I 0Ptl'l lltt.Illi6\ I lltLt' I

http://info.sos,state,tx,us/pls/pub/reacltao$ext,TacPage?sl:R&.app:9&'p-dir:&p-rloc:&p.-tl', . 91512014 : Texas Administrative Code Page 1 of I

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

il:i11t I Tti.[\ liútiTtî I Itils ,ii]llllìl\ll|.rrli\rt I,tlDt I 0ttli llttlltl6! I l:iLt I

http:/iinfo.sos.state,tx.us/pls/pub/readtac$ext.TacPage?sl=R&app:9&p-dir/x'p tloc=&p-tl., . 91512014 : Texas Administrative Code Page I of 2

< 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'

http://info.sos,state.tx.us/pls/pub/readtac$ext.TacPage?s1=R&app=9&p-dir-&p-rloc=&p-tl,' . 91512014 : 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 lltllt I I¡i6liTt¡ll I[i('1J ltrilllilllLliTlll l-li[,t I uttll llttllh[i I lltLI, I

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

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

http://info.sos,state.tx.us/pls/pub/readtac$ext,TacPage?sl:R&app:9&p-dir:&p-rloc:&p-tl', ' 91512014 : 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':

Llst of Titles Back to Llst

'til¡,s il0tlE t r(tGlSTtP. l TÜ(,ll lt)lllllllTtrATllE t|]Dt I 0Ptll tlttllltcl I llttt' I

http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl:R&app:9&p_dir:&p_rloc:&p_tl.. . 91512014 Texas Administrative Code Page I of I

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

irlox L P;rqct ['reviorrs Ilarìe

ll0l'lt I Tttl,i tltGlSTtFr I rt}('ìl ütl1'lllllITRITIVt Lr]tjt I 0Ptll t'lttllltrl I llttt' I

http://info,sos,state.tx.us/pls/pub/readtac$ext,TacPage?sl:R&app:9&p-dir:&p-rloc:&p-tl, ,. 91512014 : Texas Administrative Code Page I of2

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

http://info,sos.state.tx,us/pls/pub/readtac$ext,TacPage?sl=R&app:9&p-dir:&p-rloc=&p-tl,, ' 91512014 : Texas Adminishative Code Page2 of2

iitiLilii,,",lr_r il;l ',,',:,,',r''ll,l',tr,,irt Lli i lll It l[, I I

htþ://info,sos,stête.tx.us lplslpubheadtac$ext.TacPage?sl=R&app=9&p-dir&p-rloc:&pJl,,. 91512014 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 RESÉRVËD' CPf ONLY . COPYRIGI{'t'20I ) AMB(fCAN MBDICAT ASSOCIATION, ALL f(ICHTS TEXAS MEDICAID PROVIDER PROCEDURIIS MANUAL: VoL, 2

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 CPT ONLY - COPYRICHT 20l r A¡,tËRlC¡{N MBDICAL ALL fUGH'fS RÙSliRVlD' ^SSOCÍ,{TIoN, 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 cP'I' oNLY - COPYnlClll'!O¡ ¡ MfiDlC¿tL ASSOCI^TIoN RrGl t'fS ÂIJSÊRVED' ^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

DM.I6 Cf/T ONI,Y - COPYRICHT 20I ! AMERICAN MEDICAL ASSOCI ATION' ALL RfCHTS RESERVIJD' 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 CP'f ONLY - COPYRIGH'I' 20t I ¡{¡.lERlCAN MEDfC^L RICH'r'S nESERVËl)' ^SSOCIATION' ^LL 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 cPToNLY'coPYRlcflT20ll^MÍRIcANÌylBDlc^LAssocl^TloNALLRlcIlTfiRI's!RvtjD, 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

Dùt-lt CPT ONLY - COpYRIGHT 20l t AltfERlC^N MliDlCÁL ALl. RfCHTS RßSERVID ^SSOCI^'fiON. TEXAS MEDICAID PROVIDER PROCEDURES MANUALT VOL.2

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'

IJM-20 CPT ONLY . COPYRIGH'l'201 I AMÊRtC N lvfliDlCAL ÁSSOCI'11lON' ALL RtCHi s [nSBRvtiD 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

DM-58 cl"T oNLY - COf YRlCHl r0l I MtIDICAL ASSOC!¿\TloN, ÀLL RrCH'l'S RItSERV¿D' ^MËRlCl{N 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'

DM.59 cpl' oNl.Y - coI,YRICHT 201 ¡ ÂM¡RICAN MEDIc^1. ,ìLL RJCIITS ÂËSllRVllD' ^ssocl^TloN' 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 CPT ONLY . COPYRICH'I'20I I AMIiRfCÄN MEDICAL ASSOCIATION' ALL RIG}ITS RISERV[D' 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,

DM.óI 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,

D$-62 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,

DM.64 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 cpl'oNl.Y. coPYR|cHl'20u ÀMDÌlCÂN MEDIC^L^SSOCIAîlON,Ât,t RlGlflsRuslRy[D TEX S MBDICAID PROVIDERPROCIDURES M^NUAL: VoL. 2

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'

DM-6ó CPT ONLY - COI'YRJ(ìI IT 20I I AMERICAN MËDICAL '{SSOCfi{TION' A LL RICH ]S RËSERVI'f)' 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

, 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

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

. 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

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

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¡

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

@ 2014 Thomson Rcuters, No Claim to Orig' US Gov, Works 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;

@ 2014 Thomson Rcuters, No Claim to Orig, US Gov' \Vorks, 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-

@ 2014 Thomson Reuters, No Claim to Orig, US Gov. Vy'orks 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-

@2014 Thomson Reutcrs, No Cl¿im to Orig, US Gov, Works, 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

@2014 Thomson Reuters, No Claim to Orig, US Gov, Works, PageT 752F,3¿.627,Med, & Med GD (CCH) P 304,943 (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

@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.

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 Phone number

. Physician'sinformatlon o Name

o NPI

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-

A 2015 Thomson Reuters. No Claim to Orig. US Gov. Works Page2 945 F.Supp.2d 746,Med & Med GD (CCH) P 304,372 (Cite as: 945 F.Supp.2d 746)

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-

@ 2015 Thomson Reuters. No Claim to Orig. US Gov. Vy'orks. Page 3 945 F.Supp.2d 146,Med & Med GD (CCH) P 304,372 (Cite as: 945 F.Supp.2d 746)

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

O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works Page 4 945 F.Supp.2d 746,Med & Med GD (CCH) P 304,372 (Cite as: 945 F.Supp.2d 746)

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

O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works, Page 5

945 F.Supp.2d'746,Med & Med GD (CCH) P 304,372 (Cite as: 945 F.Supp.2d 746)

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

@ 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 6 945 F.Supp.2d 746,Med & Med GD (CCH) P 304,372 (Cite as: 945 F.Supp.2d 746)

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-

@ 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 7 945 F,Supp.2d 746,Med & Med GD (CCH) P 304,372 (Cite as: 945 F.Supp.2d 746)

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-

O 2015 Thomson Reuters. No Claim to Orig, US Gov. Works, Page 8 945 F.Supp.2d 746,Med & Med GD (CCH) P 304,372 (Cite as: 945 F.Supp.2d 746)

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-

@ 2015 Thomson Reuters, No Claim to Orig. US Gov, Works. Page 9 945 F.Supp.2d 746,Med & Med GD (CCH) P 304,372 (Cite as: 945 F.Supp.2d 746)

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

O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works Page 10 945 F.Supp.2d 746, Med & Med GD (CCH) P 304,372 (Cite as: 945 F.Supp.2d 746)

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

O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page I I 945 F.Supp,2d 746,Med & Med GD (CCH) P 304,372 (Cite as: 945 F.Supp.2d 746)

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-

O 2015 Thomson Reuters. No Claim to Orig. US Gov. Works Page 12 945 F.Supp.2d 746,Med & Med GD (CCH) P 304,372 (Cite as: 945 F.Supp.2d 746)

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

@ 2015 Thomson Reuters. No Claim to Orig. US Gov. Works, Page 13 945 F.Supp.2d 746,Med & Med GD (CCH) P 304,372 (Cite as: 945 F.Supp.2d 746)

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

@ 2015 Thomson Reuters, No Claim to Orig. US Gov. Works. Page 14 945 F,Supp.2d 746,Med & Med GD (CCH) P 304,372 (Cite as: 945 F.Supp.2d 746)

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."

@ 2015 Thomson Reuters. No Claim to Orig, US Gov. Works. Page 15 945 F.Supp.2d 746,Med & Med GD (CCH) P 304,372 (Cite asr 945 F.Supp.2d 746)

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

O 2015 Thomson Reuters, No Claim to Orig. US Gov. Works. Page 16 945 F,Supp.2d 746,Med & Med GD (CCH) P 304,372 (Cite as: 945 F.Supp.2d 746)

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

@ 2015 Thomson Reuters. No Claim to Orig. US Gov, Works,