UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
In the Matter of Kimberly D.
On Appeal from the Denial of
Medicare Part B Benefits D. Lieb, A.L.J.
APPELLANT'S MEMORANDUM OF LAW
IN SUPPORT OF MEDICARE REIMBURSEMENT FOR
AN AUGMENTATIVE COMMUNICATION DEVICE
May 12, 2000
Lewis Golinker, Esq.
Suite 507, 202 East State Street
Ithaca, New York 14850
voice: 607-277-7286; fax 607-277-5239
Attorney for Ms. D.
REQUEST FOR FAVORABLE DECISION ON THE RECORD
Ms. Kimberly Damon, a Medicare beneficiary, presents this Memorandum of Law to
support her request for a favorable decision on the record. However, if the Administrative
Law Judge is unable to grant this relief on the basis of the information thus far presented, Ms.
Damon will appear at the in-person hearing, to supplement the record with live testimony and
additional argument. That hearing is scheduled for May 23, 2000 at 1 p.m.
Kimberly Damon is 42 years old and resides in South Portland, Maine. She has cerebral
palsy, which causes quadriplegia and severe dysarthria, a motor speech impairment. Both of
these conditions are commonly associated with cerebral palsy.
As a result of her quadriplegia, Ms. Damon is unable to use her hands to write.
As a result of her severe dysarthria, her ability to speak, as reported by Mark Hammond,
her speech-language pathologist, is limited to a few utterances that are unintelligible even to
familiar listeners. For this reason, she uses an “augmentative communication device,” (also
known as AAC device or ACD), called a LightWriter.
With the LightWriter, Ms. D. is able to lead a normal adult life. As her uncle explained
in a letter supporting Medicare reimbursement:
[Her communication is enhanced to such a degree with her LightWriter that she
can with relative ease and with increased efficiency converse with anyone she
wishes. She can engage friends, relatives, strangers, associates and officials in
concise, understandable conversation. She can ask questions, get directions or
tell me over the telephone what is going on in her life while inquiring how my
family is doing. She is able to communicate verbally as she should be able to, . .
. , as she has not been able to before the acquisition of the LightWriter too. In
short, she is freed from her non-verbal imprisonment.
Letter dated June 23, 1999 to Medicare Hearing Officer, from Dennis D., attached as Exhibit 1.
The LightWriter is not Ms. D.‟s first AAC device, nor is this her first request for
Medicare reimbursement for an AAC device. From 1984 to 1996, she used another AAC
device, known as the VOIS 140. In September 1986, Medicare provided reimbursement for this
AAC device. However, after approximately a decade of continual use, the VOIS 140 ceased to
function. Ms. D. purchased the LightWriter after she learned the VOIS 140 was no longer being
manufactured or serviced.
Augmentative communication devices are a long-recognized form of speech-language
pathology treatment for severe expressive communication disabilities, including dysarthria, and
AAC devices have a long history of use by individuals with cerebral palsy. The appropriateness
of AAC devices in the treatment of severe dysarthria has recently been confirmed by the
American Medical Association, American Academy of Neurology, American Academy of
Physical Medicine and Rehabilitation, the American Speech-Language-Hearing Association, and
the United Cerebral Palsy Research and Education Foundation.
Augmentative communication devices are covered by Medicare as durable medical
equipment and as prosthetic devices, and are covered by every other health-based funding or
benefits program, including Medicaid, commercial health insurance, CHAMPUS and the
Department of Veterans Affairs. As noted above, Medicare already has provided
reimbursement for one AAC device for Ms. D., in 1986. Medicare has provided reimbursement
for AAC devices since March 31, 1981, and every ALJ who has considered Medicare
reimbursement for AAC devices has approved the request. Among those favorable decisions is
an approval for a LightWriter, the same AAC device Ms. D. uses.
Medicare Coverage Issues Manual § 60-9 is the reason that ALJ hearings are necessary
for AAC devices to be reimbursed by Medicare. C.I.M. § 60-9, which is binding on the
DMERC Region A, states that AAC devices are “convenience items” and directs reimbursement
to be denied. However, that guidance is not binding on administrative law judges:
operationally, Medicare ALJs are the first Medicare decision makers permitted to review AAC
device claims on their merits. And, as noted above, upon review of the merits, no ALJ ever has
denied an AAC device reimbursement request.
No Medicare ALJ has ever applied this guidance because the Health Care Finance
Administration admits it has no known basis, and it is overwhelmingly contradicted by
professional medical literature, policy and practice, and by three decades of policy and practice
by other funding and benefits programs. On April 26, 2000, the Health Care Financing
Administration officially recognized the inappropriateness of this statement about AAC devices
and withdrew the “convenience item” guidance. HCFA now concludes that AAC devices meet
the Medicare definition of durable medical equipment.
In sum, Ms. D. seeks Medicare reimbursement for the LightWriter, an AAC device that is
an essential link to the world. As she stated in her appeal letters from the repeated adverse
DMERC decisions, the LightWriter “allows me to have a voice, be interactive with people and to
be as independent as I possibly can despite my severe disability.” The functional
communication independence Ms. D. achieves with the LightWriter is recognized by Medicare
as a level of communication functioning that will be supported by Medicare under its
speech-language pathology benefit.
There are no facts in dispute regarding her ability to use or benefit from the LightWriter:
with it, she can engage in normal, conversational communication as can any adult living in the
community. The LightWriter allows Ms. D. to meet all of the communication needs that arise in
her daily activities. By contrast, without it, she has no effective means of expressive
Thus, with no facts in dispute, and no legal barriers to the issuance of a favorable
decision, Ms. D. requests that her reimbursement request for the LightWriter be approved on the
STATEMENT OF FACTS
A. Personal Facts
Kimberly D. is an adult with cerebral palsy. This neuro-motor condition has caused two
associated severe impairments: quadriplegia and dysarthria, which combine to make it
impossible to obtain personal information directly. Due to severe dysarthria, Ms. D. is not able
to provide information verbally, and, due to her quadriplegia, she cannot use her hands to write.
However, because she has an augmentative communication device, i.e., the LightWriter, she is
able to respond to her attorney‟s questions and supply information necessary to complete this
Memorandum of Law. Thus, preparing this section of this memorandum of law is a paradigm
of the issues presented in this hearing: Ms. D. is an intelligent adult who is capable of providing
these facts as well as engaging in all other aspects of preparation for her appeal hearing, provided
that she has access to her AAC device.
Ms. D. is 42 years old. She resides with her mother and an uncle in a private residence
located in South Portland, Maine.
As noted above, Ms. D. has two very severe physical impairments associated with
cerebral palsy: quadriplegia and dysarthria. Quadriplegia affects Ms. D.‟s mobility as well as
use of her hands; dysarthria is a motor speech disorder which affects the intelligibility of her
However, Ms. D. has made every effort to keep either of these impairments from being
disabling. As reported by her uncle in a letter to the Carrier Hearing Officer:
I have watched with amazement her growth and development. I have marveled
at her tenacity and determination. She has constantly worked against odds to do
the things that you and I take for granted. The barriers she faces daily in her
struggle to be mobile and to communicate would discourage most people I know
and would cause them to quit. Not Kim. She takes those everyday
inconveniences in stride and moves forward.
To overcome the functional limitations imposed by her quadriplegia, Ms. D. uses a power
wheelchair for mobility, which she controls through the use of a helmet mounted pointer. She
uses this pointing device to operate her LightWriter as well. Her reliance on this head-pointer
led her to use Ms.Unicorn@prodigy.net as a former e-mail name.
Ms. D. receives personal care attendant services for 5 hours per day to assist with
feeding, dressing, bathing, toileting, cleaning, bill-paying and errands. For more than a decade,
Ms. D. experiences the most common functional losses associated with cerebral palsy:
impairments of mobility and of speech.
The most common disabilities affecting the quality of life of persons with cerebral
palsy are impaired mobility and difficulty with verbal communication (i.e.,:
speech). Of these two, people in the disability community consistently rate poor
ability with verbal communication as the more serious of the two. Not being able
to communicate usually has disastrous effects in the home, the school, the
workplace and the community. Also, it is of great importance in interacting with
health care providers dealing with the many clinical issues relevant to disability. .
Letter dated February 24, 2000 to Hugh Hill, M.D., Acting Director, Coverage and Analysis
Group, Health Care Financing Administration, from Murray Goldstein, DO, MPH, Medical
Director and COO, United Cerebral Palsy Research and Educational Foundation, attached as
Ms. D. has been responsible for interviewing and hiring these attendants. She also totally
independent in directing them in the performance of these tasks with the use of her AAC device
-- first the VOIS 140, and now the LightWriter.2
Without an AAC device, Ms. D. would not be able to do accomplish these tasks. Her
attendant stated this directly. In a letter to the DMERC hearing officer, her attendant wrote:
“Since she purchased the LightWriter, my job has been much easier. I am no longer having to
try to understand Kim when she needs me to do something for her.”3
Ms. D.‟s AAC device does more than just enable her to meet her personal care needs.
Her uncle reported:
[H]er communication is enhanced to such a degree with her LightWriter that she
can with relative ease and with increased efficiency converse with anyone she
wishes. She can engage friends, relatives, strangers, associates and officials in
concise, understandable conversation. She can ask questions, get directions, or
tell me over the telephone what is going on in her life while inquiring how my
family is doing. She is able to communicate verbally as she should be able to, ...
as she has not been able to before the acquisition of the LightWriter tool. In
short, she is freed from her non-verbal imprisonment.
Because she has access to the LightWriter, Ms. D. can self report about its importance to
her. She stated to the Carrier Hearing Officer:
I have used my LightWriter constantly since purchasing it a year ago. It amazes
me when I do something new with the LightWriter that I haven‟t been able to do.
A couple of examples of things I have been able to do using the [AAC] device
are: 1) while talking with a friend, I yelled “I need help” when she had an
[epileptic] seizure in front of me. Someone came running! 2) A few months
ago, I stopped a stranger and asked for directions as anyone else would have done
with a voice. That instant, I thought, “Why is Medicare not able to see the
See Letter dated August 6, 1998 to Region A DMERC from Deborah Cerullo, OTR/L,
Independent Living Specialist, Alpha One, attached as Exhibit 3.
Letter dated May 31, 1999 to Medicare Hearings Department, from LeeRay Peterson,
attached as Exhibit 4.
LightWriter for what it really is? The LightWriter is my artificial voice, ... which
I desperately need.4
Ms. D.‟s successful use of the LightWriter also allows her to express her thoughts and
personality for the purposes of self-advocacy. This is an important role for AAC device users,
particularly because they are likely to participate in and must negotiate multiple services systems
in addition to those adults without disabilities will encounter.5 Ms. D.‟s skill in this role has
enabled her to impress a wide circle of others of the importance of her AAC device. One such
observer: Congressman Tom Allen. He wrote to the Carrier Hearing Officer:
Ms. D. has cerebral palsy. She is wheelchair bound and unable to speak. Her
only controlled motion is in her head and neck. Through a determined spirit and
a wheelchair that she controls with a pointer attached to her head, she is able to
navigate in the world. But it is no good to go out in the world, if you cannot
communicate with your fellow human beings. Her LightWriter allows her to
speak. In appealing her denial, Medicare gave her three choices: in person
hearing, telephone hearing, or on the record hearing. Without a LightWriter, she
would be able to have only an on the record hearing.6
As Congressman Allen and these others have acknowledged, with the power wheelchair,
the LightWriter, and her head-pointer, Ms. D. is able to be an active adult, traveling throughout
the local community by accessible public transportation. Because she has independent mobility
as well as the ability to communicate, she is able to shop, go to restaurants, meet with friends,
Letter dated October 25, 1999 to Medicare Fair Hearing, from Kimberly D., attached as
See D. Bryen, G. Slesaransky, & D. Brown, “Augmentative Communication and
Empowerment Supports: A Look at Outcomes,” 11 AAC 79 (1995).
Letter dated June 16, 1999 to Medicare, Hearings Department, from the Hon. Tom Allen,
Member of Congress, attached as Exhibit 6. See also, Letter dated May 26, 1999 to Medicare
Hearings Dept. from L. Marie Guimont, attached as Exhibit 7 (a local bank employee describing
her interactions with Ms. D. both with and without the LightWriter).
participate in community activities and take advantage of the many opportunities that exist in any
community, and which individuals without disabilities take for granted. In 1990, Ms. D. was
the recipient of a state “independent living” award based on her ability to maintain her
independence, despite her impairments.
In addition, Ms. D. also has the ability to be a far more equal member of her household.
Just as Ms. D. reported she was able to summon help for a friend in need, her attendant described
an important element of her family role is to be able to respond if her mother or uncle became ill.
[And] another thing, if there ever was a reason for Kim or her mother needed
emergency medical attention Kim would be able to tell them what she needed.
Where as before she got the LightWriter it would have been almost impossible.
Unfortunately, that circumstance arose just in the past few days. At the end of the first week of
May, Ms. D.‟s mother experienced chest pains that required emergency hospitalization. This
presented two challenges for Ms. D.. As she reported: “with my [LightWriter], I called my
attendant and was able to arrange coverage for the care my mother usually does when the
attendant isn‟t there.”7 In addition, Ms. D. was able to use her LightWriter to stay in contact
with her mother, by telephone, as well as alert other family members and friends of her
condition.8 Thus, Ms. D.‟s cerebral palsy imposes functional impairments that require her to
use adaptive devices for both mobility and speech. But with these devices, she is able to lead an
active, full life, as an adult in her family and in her community.
B. AAC Evaluation, Medicare Claim and Appeals
E-mail message  dated May 6, 2000 to Lewis Golinker from Kimberly D., attached as
E-mail message  dated May 6, 2000 to Lewis Golinker from Kimberly D., attached as
Ms. D. acquired the LightWriter following an evaluation on January 20, 1998 by Mark
Hammond, M.S., C.C.C.-S.L.P., a speech-language pathologist located in Portland, Maine. Mr.
Hammond is an SLP experienced with the evaluation of the speech-language pathology
treatment needs of individuals with severe communication disorders, including the
recommendation of and services delivery for augmentative communication. His experience
includes having worked with Ms. D.‟s attorney in 1991-92 to convince the Maine Medicaid
program to cover and provide AAC devices.9
Mr. Hammond‟s report is attached as Exhibit 11. It notes that Ms. D. has severe
dysarthria, the most common speech disability associated with cerebral palsy.10 Dysarthria is
caused by weakness, incoordination and/or paralysis of the nerves, muscles and other body
organs and structures used in speaking.11 It can range from mild speech production problems,
where only a few sounds may be slurred or indistinct (unintelligible), to a complete inability to
speak intelligibly or even make guttural sounds.12
Ms. D.‟s dysarthria is at the more severe end of this range. Her speech has been
described by Mark Hammond, her speech-language pathologist as “limited to a few utterances
which are unintelligible to familiar listeners. Functional speech output is not available at this
time.” Exhibit 11, at page 1.
See L. Golinker, “Freedom of Speech,” 4 Team Rehab Report 24 (1993)(attached as
Exhibit 10)(Describing efforts to persuade Maine Medicaid to cover and provide AAC devices;
the individuals presented as typical individuals who will need AAC devices were two adults with
Research estimates that dysarthria arises in 31-88 %of individuals with cerebral palsy.
K. Yorkston, D. Beukelman & K. Bell, Clinical Management of Dysarthric Speakers (San Diego,
CA: College-Hill Press 1988).
Darley, Aronson & Brown, Motor Speech Disorders (1975); see also Darley, Aronson &
Brown, "Differential Diagnostic Patterns of Dysarthria," 12 J.Speech and Hearing Research
246-269 (1969); Darley, Aronson & Brown, "Cluster of Deviant Speech Dimensions in the
Dysarthrias," 12 J.Speech and Hearing Research 462-496 (1969).
Darley, Aronson & Brown, Motor Speech Disorders 2 (1975).
However, dysarthria does not compromise receptive communication abilities (the ability
to understand what is spoken or written).13 Ms. D. was described by Mr. Hammond as
“functioning at an adult level in her receptive language.” Id. In addition, Ms. D. has no
cognitive limitations. She has completed two and one half years of college. Mr. Hammond
also reported that she “presents as an individual functioning within normal limits for an adult
her age,” that her expressive language capability is“syntactically and grammatically correct,” and
there are “[n]o concerns regarding her expressive language capability.” Id.
Mr. Hammond‟s report recommends use of an augmentative communication device as
treatment for Ms. D.‟s dysarthria. His report concludes:
Kimberly D. is a woman who is in need of an extensive vocabulary and the ability
to formulate novel messages. Therefore, the most appropriate devices to
accomplish this purpose would be those devices that would allow text-to-speech
output. Those devices allow the user to type in the messages and have them
spoken. She would also benefit from a device which would allow her to
preprogram many of the words that she wishes to say in order to accelerate her
speech. The device should allow direct selection with her head stick and provide
a female voice quality.
Id. at page 2.
Mr. Hammond then identified a group of AAC devices that may meet Ms. D.‟s
communication needs. Of the four devices that were identified as equally effective alternatives,
the LightWriter is between $ 2000 to 3000 less expensive, and on July 6, 1998, the LightWriter
was prescribed for Ms. D.‟s use by her treating physician, David Scotton, M.D. Attached as
Ms. D. then purchased the LightWriter and submitted a Medicare reimbursement claim to
the DMERC, Region A on December 11, 1998. On December 17, 1998, six days later, the
claim was denied. It was followed by two reconsideration denials, issued on March 31, 1999
and April 26, 1999. Both are form letters which explain their rationale in full as follows: “This
is not covered. It‟s not a medical or durable item based on our rules.” Attached as Exhibit 13
and 14. These decisions were followed by a Carrier Hearing decision, issued September 23,
1999. In this decision, the denial offered the following rationale:
Region A DMERC Supplier Manual, Section 12-43 and Coverage Issues Manual,
§ 60-9 specifically state that an Augmentative Communication Device or
Communicator is a non-covered item. Both the Coverage Issues Manual and the
DMERC Supplier Manual state the item is a convenience item and not primarily
medical in nature.
Attached as Exhibit 15. This decision was followed by a request for an ALJ hearing.
The Ability to Communicate is Vital: Speech-Language
Pathology Treatment Makes Communication Possible for
Persons with Severe Expressive Communication Disorders
As Dr. Goldstein of the UCP Research and Educational Foundation noted, impaired
communication ability is generally recognized as among the most significant functional losses
associated with cerebral palsy. This conclusion is not unique. In Fred C. v. Texas Health &
Human Serv. Comm’n, the district court observed that the loss of the ability to speak is the most
devastating aspect of any disability. The Court was reviewing the case of an adult who lost his
ability to speak following an accident, and its judgment was to order Texas Medicaid to provide
funding for an augmentative communication device.14R. Sienkiewicz-Mercer & S. Kaplan, I
Raise My Eyes to Say Yes (1989).
988 F.Supp. 1032, 1034 (W.D.Tex. 1997), affirmed per curiam, 167 F.3d 537 (5th Cir.
1998)(Table)(Fred C.-II); Fred C. v. Texas Health & Human Services Commission, 924 F.Supp.
788, 789 (W.D.Tex. 1996), vacated and remanded on other grds, 117 F.3d 1416 (5th Cir.
1997)(Table)(Fred C.-I). See also E. Saideman, "Helping the Mute to Speak," 17 N.Y.U. J. Law
& Social Change 741 (1989/1990).
The Court‟s observation about the impact of the loss of speech is based on statements by
Ruth Sienkiewicz-Mercer. Ms. Sienkiewicz-Mercer is an adult with cerebral palsy and severe
dysarthria, who was one of the first individuals provided access to an electronic AAC device.
That device was made available to her in 1971. Ms. Sienkiewicz-Mercer stated:
In addition, in both Fred C. and Hunter v. Chiles,15 the district courts added that the
ability to communicate is "vital,"16 based on the half-century long, generally accepted
recognition by speech-language pathologists, neuro-science researchers, and the public at large,
that the ability to speak and to use language for communication is the physical functional ability
that most clearly distinguishes human beings from all other species.17
Other individuals who have been provided access to AAC devices describe their ability to
communicate as a way to retain their human-ness. Rich Creech, an adult with cerebral palsy,
[When a person who is unable to communicate is among other people] people
[will be] talking behind, beside, around, over, under, through, and even for you.
But never with you. You are ignored until you feel like a piece of furniture.
Without a doubt, my inability to speak has been the single most devastating aspect
of my handicap. If I were granted one wish and one wish only, I would not
hesitate for an instant to request that be able to talk, if only for one day, or even
944 F.Supp. 920 (S.D.Fl. 1996), the district court directed Florida Medicaid to cover and
provide augmentative communication devices to both children and adults.
Fred C.-II, 988 F.Supp. at 1036; Hunter v. Chiles, 944 F.Supp. at 920; Fred C.-I, 924
F.Supp. at 792.
Judicial notice can be taken of this fact, which has achieved cliche' status. Fed.R.Evid.
Rule 201, 803(18). The American Speech-Language-Hearing Association (ASHA) and the
United States Society for Augmentative and Alternative Communication (USSAAC) have both
asserted, as a matter of organizational policy, that "communication is the essence of human life."
ASHA, "Report: Augmentative & Alternative Communication," 33 Asha 9 (Suppl. 5) (1991);
USSAAC, By-laws, Article II, § 1. However it is phrased, this fact is generally accepted by
the scientific community, among the judiciary, and among the public at large. See Fred C.-II,
988 F.Supp. at 1034; Hunter v. Chiles 944 F.Supp. at 920; Fred C.-I., 924 F.Supp. at 789; see
also J.Light, "'Communication is the Essence of Human Life;' Reflections on Communicative
Competence," 13 AAC 61-70 (1997); D. Bickerton, Language and Human Behavior (1995);
S.Pinker, The Language Instinct (1994); M. Batshaw & Y. Perrett, Children with Handicaps: A
Medical Primer (2d Ed 1986); M. Fisher, Ed., Illustrated Medical & Health Encyclopedia (1956);
J. Wilford, "Ancestral Humans Could Speak, Anthropologists' Finding Suggests," N.Y. Times,
April 28, 1998, at A:1.
C. Musselwhite & K. St. Louis, Communication Programming for Persons with Severe
Handicaps (2d. Ed. 1988).
Jean Daemonic-Bauby, the former editor of the fashion magazine Elle, who lost his
ability to speak and developed locked-in-syndrome following a severe stroke, wrote with the aid
of a crude eye-gaze device:
“On June 8, it will be six months since my new life began.” . . . Those were the
first words of the first mailing of my monthly letter . . . [T]hat first bulletin caused
a mild stir and repaired some of the damage caused by rumor. . . . The gossipers
[in Paris had] left no doubt that henceforth I belonged on a vegetable stall and not
to the human race. . . . [In response] I would have to rely on myself if I wanted to
prove that my IQ was still higher than a turnip‟s.
J. Bauby, The Diving Bell and the Butterfly (1997).
Beukelman and Mirenda, authors of the most well regarded treatise on augmentative
communication, wrote: “clearly, someone who has not „been there‟ cannot understand the
experience of having a severe communication disorder.” D. Beukelman & P. Mirenda,
Augmentative and Alternative Communication (2d. Ed. 1998). An earlier article explained why
this statement is true:
For the normal adult who has spoken without difficulty since early childhood, the
prospect of being unable to communicate through natural speech is
incomprehensible. Efficient communication with colleagues, family, and friends
is taken for granted.
D. Beukelman & K. Garrett, “Augmentative and Alternative Communication for Adults with
Acquired Severe Communication Disorders,” 4 AAC 104 (1988).
If the fundamental importance of the ability to communicate effectively is not
self-evident, the life-threatening circumstances18 and outrageous injury19Affidavit of Judith
See e.g. D. Wedemeyer, "His Life Is His Mind," N.Y. Times Magazine, at 22-25 (Aug.
18, 1996)(describing the question posed to Dr. James Hall, a renowned psychiatrist, who
experienced "locked in syndrome" following a severe stroke. Initially, Dr. Hall was only able to
communicate by blinking his eyes. Shortly after his stroke, he was asked whether, due to his
condition, he wanted medical treatment to continue. The question, however was asked
incorrectly: one blink for "yes," two for "no." An involuntary twitch, causing a second blink,
almost cost Dr. Hall his life. The questioner recognized his error and asked the question again,
Frumkin, Feb. 11, 1995, ¶ 80, submitted in Myers v. State of Mississippi, No. 3:94-CIV-185 LN
(S.D.Miss. June 23, 1995). experienced by people who lacked the ability to speak, and the
perceptions by others that they are non-sentient20Ms. Tavalaro, a New York City Medicaid
recipient who now uses an augmentative communication device, has become an accomplished
poet and published author. See In re: Julia Tavalaro, FH # 099304J (NYS Dept. of Social
Services May 7, 1987)(awarding augmentative communication device); D. Martin, "When
Paralysis is no Match for P-O-E-T-R-Y," N.Y. Times March 16, 1991); J. Tavalaro, Look Up for
Yes at 123 (1997)(memoir, written with augmentative communication device, describing
post-stroke experiences). or even non-human,21In re: Anonymous, Case No. 851-0-107314 Slip
Op. at 10 (Ohio Dept. of Human Services, Dec. 7, 1988). clearly demonstrate its value.
reversing the meaning of the responses. Dr. Hall, who now uses an augmentative
communication device, has returned to the practice of medicine.
For example, the mother of a young adult Medicaid recipient in New York State reported
the preventable tragedy that befell her son:
Andrew has a burn scar on his hand which occurred because he couldn‟t tell his
attendants at school that they had pushed him up against a radiator and locked his
wheels in a position where his hand was trapped to sear until the flesh melted off.
Consider the example of Julia Tavalaro. In 1966, she suffered a severe stroke, and was
considered brain dead. For the next seven years she remained in the back ward of a public
institution where she had no input related to any aspect of her life. When she finally was seen
by a speech-language pathologist knowledgeable about augmentative communication
intervention and who treated her as an intelligent person able to communicate, she later wrote:
I raise my eyes for yes, hardly able to believe that someone is asking permission
before she does something to me.
For example, an Ohio Medicaid recipient's treating doctor described in these shocking
terms his difficulties obtaining information from his patient:
Current inability to communicate has greatly limited his access to medical care
and indeed has reduced it to approximately veterinary proportions.
Ms. D., thankfully, has not experienced the harm that is all too common among
individuals with cerebral palsy and severe dysarthria. However, the pragmatic, day-to-day
impact of her communication impairment -- which would preclude Ms. D. from controlling any
aspect of her life -- are completely unnecessary. Despite its severity, speech-language
pathology treatment, in the form of augmentative communication interventions, is readily
available to treat Ms. D.‟s dysarthria.
Speech-language pathologists (SLPs) are health care professionals educated and trained
to evaluate, diagnose, treat and prevent speech, language and swallowing disabilities in children
and adults. Speech-language pathology treatment focuses on preventing the worsening of a
disorder or alleviating the adverse functional effects of a condition, rather than correcting the
root cause, such as ALS, cerebral palsy, traumatic brain injury, or stroke.22 [add reference to ALJ
An issue of general concern in speech-language pathology is speech intelligibility.
Speech intelligibility can be defined simply as the ability of a listener to extract meaningful
information from speech, which allows for information transfer and exchange.23 It is the key to
communicative competence (effectiveness), and improvement in intelligibility is the primary
objective of most speech-language management.24
For persons with dysarthria, speech intelligibility is progressively more impaired as the
condition increases in severity. Speech-language pathology treatment, however, can
substantially alleviate or ameliorate these effects, and the effectiveness and efficiency of
ASHA, "Preferred Practice Patterns for the Professions of Speech-Language Pathology,"
ASHA Desk Reference (1997).
R. Kent, "Speech Intelligibility," in D.Yoder and R. Kent, Decision Making in
Speech-Language Pathology, 39-40 (1988); K. Yorkston and D. Beukelman, "A Comparison of
Techniques for Measuring Intelligibility of Dysarthric Speakers," 11 J.Communication
Disorders 499 (1978).
Beliveau, Hodge & Hagler, "Effects of Supplemental Linguistic Cues on the
Intelligibility of Severely Dysarthric Speakers," 11 AAC 197 (1995).
communication in all speaking situations can be increased. The goal of such treatment is to
overcome or ameliorate the communication limitations that preclude or interfere with the
person's meaningful participation in daily activities.25 The appropriateness of this goal was
recently confirmed by the American Medical Association, American Academy of Neurology,
American Academy of Physical Medicine and Rehabilitation, and the American
Speech-Language-Hearing Association. The AMA stated:
The AMA agrees with the American Academy of Neurology that these devices
are medically necessary for severely speech-impaired patients to meet the
communication needs arising in the course of their daily activities.26
The scope of Medicare coverage of speech-language pathology treatment is consistent
with these general principles. Medicare guidelines state that coverage requires the
speech-language pathologist to identify "functional goals" that state the "level of communicative
independence the patient is expected to achieve outside the therapeutic environment."27
The functional goals reflect the final level the patient is expected to achieve, are
realistic, and have a positive effect on the quality of the patient's everyday
D. Beukelman and P. Mirenda, Augmentative and Alternative Communication 104
(1992). Meaningful participation means effective and efficient communication of messages in
any form the person chooses. National Joint Committee for the Communicative Needs of
Persons with Severe Disabilities, "Guidelines for Meeting the Communication Needs of Persons
with Severe Disabilities," 34 Asha (Supp. 7) at 2-3 (1992).
Letter dated March 21, 2000 to Hugh Hill, M.D., Health Care Financing Administration,
from E.Ratcliffe Anderson, M.D., American Medical Association; see also, Letter dated March
22, 2000, to Hugh Hill, M.D., from Francis Kittredge, Jr. M.D., American Academy of
Neurology; Letter dated March 23, 2000 to Hugh Hill, M.D., from Ronald Henrichs, American
Academy of Physical Medicine and Rehabilitation; Letter dated March 20, 2000 to Hugh Hill,
M.D., from Jeri Logemann, Ph.D., American Speech-Language-Hearing Association. These
letters were submitted to HCFA in support of the Formal Request for National Coverage
Decision for Augmentative and Alternative Communication Devices, and are attached as Exhibits
16, 17, 18, and 19.
Medicare Hospital Manual, § 446(A)(3)(a). An identical provision is found in the
Medicare Intermediary Manual, HCFA Publ. 13, § 3905.3(A). attached as Exhibit 20.
The guidance provides four examples of communication goals designed to achieve "optimum
-- communicate basic physical needs and emotional status;
-- communicate self-care needs;
-- engage in social communicative interaction with immediate family or friends;
-- carry out communicative interactions in the community.29
The discussion of functional goals concludes with the following explanation:
A functional goal may reflect a small, but meaningful change which enables the
patient to functional more independently in a reasonable amount of time. For
some patients, it may be the ability to give a consistent "yes" or "no" response; for
others, it may be the ability to demonstrate a competency in naming objects
using auditory/verbal cues. Others may receptively and expressively use a basic
spoken vocabulary and/or short phrases; and still others may regain
conversational language skills.30
Mr. Hammond recognized that the LightWriter will provide Ms. D. with the ability to
meet the highest level of communication functioning stated in the Medicare SLP services
guidance: carrying out communicative interactions in the community and engaging in
conversational communication. Ms. D.‟s actual use of this device for almost two years while
this reimbursement request has been pending confirms the appropriateness of this prediction. In
addition, in contrast to the “small change” in communication functioning permitted in the
Medicare SLP services guidelines, use of the LightWriter, as compared to the use of natural
speech, or to the letter-board she used between the date the VOIS 140 ceased to function and the
date the LightWriter was delivered, provides Ms. D. with an enormous increase in speech
production and intelligibility.
Augmentative communication interventions, including devices such as the LightWriter
have been developed over the past 40 years to treat severe expressive communication disabilities
and to prevent the adverse effects associated with an inability to speak or otherwise expressively
communicate.31 The American Speech-Language-Hearing Association defines augmentative
communication intervention as an area of clinical, research and educational practice that attempts
to compensate, either temporarily or permanently, for the impairment and disability patterns of
individuals with severe expressive communication and/or language comprehension disabilities.32
In Myers v. State of Mississippi, the district court correctly defined augmentative communication
electronic and non-electronic devices that allow individuals to overcome, to the
maximum extent possible, communication limitations that interfere with their
For almost two decades, augmentative communication intervention has been recognized
by ASHA as a type of speech-language pathology treatment methodology and that it is within the
scope of practice of speech-language pathologists.34 Augmentative communication has long
Zangari, Lloyd & Vicker, "Augmentative and Alternative Communication: An Historic
Perspective," 10 AAC 27-59 (1994); G. Vanderheiden and D. Yoder, "Overview," in
S.Blackstone, Ph.D., Ed. Augmentative & Alternative Communication: An Introduction 10-13
ASHA, "Augmentative and Alternative Communication," 33 Asha (Suppl. 5) 9-12
No. 3:94-CIV-185 LN (S.D.Miss. June 23, 1995). This definition was itself taken from
the leading text related to augmentative communication, D. Beukelman & P. Mirenda,
Augmentative and Alternative Communication: Management of Severe Communication
Disorders in Children and Adults 104 (1992).
ASHA, "Position Statement on Non-Speech Communication," 23 Asha 577-581 (August
1981). This position was recently renewed and updated and it remains ASHA's current and
official position. ASHA, "Augmentative and Alternative Communication," 33 Asha (Suppl. 5)
9-12 (1991); ASHA, "Scope of Practice: Speech-Language Pathology," 38 Asha (Suppl. 16)
16-20 (1996); see also ASHA, "Preferred Practice Patterns for the Professions of
Speech-Language Pathology," ASHA Desk Reference (1997)(providing guidance re:
augmentative communication assessment and treatment).
been recognized as an appropriate means of treating the speech losses associated with cerebral
Augmentative communication also is widely known as an appropriate treatment for
dysarthria and anarthria. Specifically, augmentation of the natural speech ability and
alternatives to natural speech are needed when dysarthria is or becomes so severe that the person
is unable to produce understandable speech to meet his or her communication needs. For
persons at this level of severity, treatment involves training in the use of augmentative
communication devices.36 Currently, the best practice for persons with severe dysarthria or
anarthria is augmentative communication treatment.
For Ms. D., the use of augmentative communication is the least costly and the only
effective course of treatment for her dysarthria.37H. Shane, “Goals and Uses,” in S. Blackstone,
E.g., L. LaFontaine & F.DeRuyter, “The Nonspeaking Cerebral Palsied: A Clinical and
Demographic Database Report,” 3 AAC 153 (1987); J. Angelo, “Comparison of Three
Computer Scanning Modes as an Interface Model for Persons with Cerebral Palsy,” 46
J.Occupational Therapy, 217 (1992); D. McNaughton & J. Tawney, “Comparison of Two
Spelling Instruction Techniques for Adults who use Augmentative and Alternative
Communication,” 9 AAC 72 (1993); D. Beukelman & P. Mirenda, Augmentative and Alternative
Communication 246-49 (d. Ed 1998).
See Beukelman & Mirenda, Augmentative & Alternative Communication (1992);
LaPointe, "Neurogenic Disorders of Speech," in Shames & Wiig, Eds., Human Communication
Disorders 462-496 (1990); Kearns & Simmons, "Motor Speech Disorders: The Dysarthrias and
Apraxia of Speech," in Lass, McReynolds, Northern & Yoder, Eds., Handbook of
Speech-Language Pathology and Audiology 592-621 (1988); Yorkston, Beukelman & Bell,
Clinical Management of Dysarthric Speakers (1988); Rosenbek & LaPointe, "The Dysarthrias:
Description, Diagnosis & Treatment," in D.F.Johns, Ed., Clinical Management of Neurogenic
Communicative Disorders (d. Ed. 1985); J.C. Rosenbek, "Treating the Language Disorder," 5
Seminars in Speech & Language 359-84 (1984); R. Rubow, "A Clinical Guide to the
Technology of Treatment in Dysarthria," in J. Rosenbek, Ed., "Current Views of Dysarthria," 5
Seminars in Speech & Language (1984); Beukelman & Yorkston, "A Communication System
for the Severely Dysarthric Speaker with an Intact Language System," 42 J. Speech & Lang.
Disorders 265-270 (1977).
The LightWriter allows Ms. D. to achieve one of the primary aims of augmentative
A principal aim of augmentative interventions is to provide individuals with the tools
necessary to converse effectively. It is the ability to request goods and services, to
Ed., Augmentative Communication: An Introduction 29, 37 (Rockville, MD: American
Speech-Language-Hearing Association 1986). The LightWriter is a compact, lightweight, easy
to learn and easy to use device that enables Ms. D. to meet the broadest, speech-restorative
treatment goals that are recognized by Medicare. The LightWriter enables Ms. D. to “say”
words, phrases, sentences, even entire messages -- whatever she wishes -- in the most intelligible
synthesized voice currently available.38 It also offers a unique feature: a “dual display,” i.e., a
small display is provided on the communication partner‟s side of the device that will provide a
written version of Ms. D.‟s message, in addition to the synthesized voice, which also increases
the intelligibility of her messages. In addition, as compared to other devices Mr. Hammond
recommended as equally effective alternatives, i.e., that have the same speech-restorative
potential, the LightWriter is much less expensive.
Augmentative Communication Devices Meet All
the Medicare Coverage Criteria for
Durable Medical Equipment and Prosthetic Devices
The Medicare Part B program, governed by Title XVIII of the Social Security Act,
provides reimbursement to eligible recipients for "items and services which are reasonable and
necessary for the diagnosis and treatment of illness or injury, or to improve the functioning of a
malformed body member."39 Among the "items and services" provided by Medicare Part B are
comment on current, past and future events, to specify preferences and emotions, or to
simply “chat” that facilitates social and emotional involvement. . . .
The LightWriter uses a speech synthesizer called DECTalk, which has been demonstrated
to provide the most intelligible synthesized speech available. Rupprecht, Beukelman & Vrtiska,
“Comparative Intelligibility of Five Synthesized Voices,” 11 AAC 244-247 (1995)(“DECTalk
has become the “standard” synthesized voice of the AAC field....”)
42 U.S.C. § 1395(y)(a)(1)(A).
durable medical equipment40 and prosthetic devices.41 Augmentative communication devices,
such as the LightWriter requested by Ms. D., satisfy all the criteria stated in the Medicare
definitions of both the durable medical equipment and prosthetic device benefit categories.42
A. Augmentative Communication Devices are Durable Medical Equipment
An item of durable medical equipment (DME) under the Medicare program must have
(1) can withstand repeated use;
(2) is primarily and customarily used to serve a medical purpose;
(3) generally is not useful in the absence of illness or injury; and
(4) is appropriate for use in the home.43
Augmentative communication devices satisfy all of these criteria. Without question they
are able to withstand repeated use. The VOIS 140 which was approved by Medicare for Ms. D.
in 1986, see Exhibit 21, was used for a period of approximately 9 years. The LightWriter which
42 U.S.C. §§ 1395(x)(n); 1395(x)(s)(6).
42 U.S.C. § 1395x(s)(8).
The definitions of durable medical equipment and prosthetic devices overlap sufficiently
to permit specific items to meet the criteria of both categories. In the Medicaid program, where
Congress also outlined broad categories of medical care as covered benefits, Beal v. Doe, 432
U.S. 438, 444 (1977), it is generally accepted that specific types of treatment can fall within
more than benefits category. Planned Parenthood Affiliates of Michigan v. Engler, 73 F.3d 634,
636 (6th Cir. 1996); Hope Med. Grp. for Women v. Edwards, 63 F.3d 418, 425 (5th Cir. 1995);
Little Rock Fam. Planning Serv. v. Dalton, 860 F.Supp. 609, 616 (E.D.Ark. 1994); affirmed 60
F.3d 497, 499 (8th Cir. 1995); Hern v. Beye, 57 F.3d 906, 910 (10th Cir. 1995). This finding
also has been expressly applied to augmentative communication devices under the Medicaid
program. In Fred C. v. Texas Health & Human Serv. Comm'n, 924 F.Supp. 788 (W.D.Tex.
1996); vacated and remanded on other gr'ds, 117 F.3d 1416 (5th Cir. 1997)(Table); on remand,
988 F.Supp. 1032 (W.D.Tex 1997) affirmed per curiam, 167 F.3d 537 (5th Cir. 1988)(Table), the
district court twice held that augmentative communication devices, such as the LightWriter,
satisfy the Medicaid standards applicable to both the durable medical equipment and prosthetic
device benefit categories. In addition, in Meyers v. Reagen, 776 F.2d. 241 (8th Cir. 1985), the
court concluded augmentative communication devices fit a third category of Medicaid benefits:
speech-language pathology services.
42 C.F.R. § 402.202.
has replaced that AAC device already has been in use for 2 years, and is expected to be of use to
Ms. D. for many years into the future.
Augmentative communication devices are used solely to serve a medical purpose. The
Food and Drug Administration reached this conclusion about AAC devices in 1983. At that
time, the FDA created a classification of medical devices called “powered communication
systems,” which it defined as:
An AC- or battery-powered device intended for medical purposes that is used to
transmit or receive information. It is used by persons unable to use normal
communication methods because of physical impairment. . . .
48 Fed. Reg. 53049 (November 23, 1983), codifying 21 C.F.R. § 890.3710(emphasis added).
As discussed in Section I of this memorandum, augmentative communication devices are
a speech-language pathology treatment method for severe expressive communication disabilities,
such as dysarthria. They are recommended when the level of severity of these disabilities
precludes effective or efficient use of natural speech. Augmentative communication devices
serve the same medical purpose as speech language pathology, a covered Medicare benefit. In
addition, the distributor of the LightWriter states:
Zygo Industries' augmentative communication devices and other products,
including the LightWriter, are designed to serve the needs of persons with severe
speech and language disabilities, and have been and continue to be sold
exclusively for use by persons with severe speech and language disabilities.
These devices serve as a functional substitute for the organs and body structures
required to produce intelligible speech which have been adversely affected by
illness, injury or disease, including Cerebral Palsy.44
The FDA classification of AAC devices provides yet another perspective on their medical
purpose. The FDA placed AAC devices in the same category of medical devices as power
wheelchairs. It recognized that both devices provide identical benefits: they permit an
individual to accomplish a specific functional intent, i.e., to move from place to place, or to
Affidavit of Kim Wright, Medical Accounts Manager, Zygo Industries, submitted in In
re: Celia C., Dkt. No. 196-14-0195 (Social Security Admin. Office of Hearings & Appeals
December 2, 1998), attached as Exhibit 22, at ¶ 3.
speak, by by-passing body parts that are necessary for the normal accomplishment of that intent,
but which are not working due to disability. For mobility, the brain generates an intent to move
from point A to point B; it then generates motor instructions for the muscles of the legs to
accomplish that intent; and it sends those instructions along the nerves to the muscles to
implement that intent. If, due to disability, those instructions cannot be carried out in the normal
fashion, the brain can by-pass the non-functioning body parts, and re-direct the instructions to the
arms and hands, which can propel a manual chair, or control a power wheelchair joystick. Thus,
by by- passing the non-functional body parts and with the aid of an item of durable medical
equipment, the original intent can be accomplished.
The same by-pass exists for AAC devices. In a recent letter, Peggy Locke, the President
of the Communication Aid Manufacturers Association, described this process as follows:
AAC devices allow their users to achieve [their communication] goals by
providing a functional substitute for body organs and structures that are necessary
for the production of speech but which are non-functioning or mal-functioning
due to illness, injury, disease or condition. Another way to describe the purpose
of AAC devices is as a functional by-pass of these non- or mal-functioning body
structures, i.e., they allow the AAC device user to express a thought (message) as
speech, by by-passing the nerves, muscles, and organs of speech which, due to
impairment, make natural speech ineffective. The AAC device is the by-pass.
Viewed in this way, AAC devices provide the same benefits and serve the same
functional purposes as power wheelchairs. . . .45
As Ms. Locke stated: the brain generates a thought; it is then linguistically encoded into
speech; motor instructions are generated for the speech organs; the nerves then carry those
instructions to the speech organs, but one or more of them are non-functional, due to disability.
To accomplish that original intent, the brain re-directs the instructions to the hands, which can
generate the message by use of an AAC device. As with the wheelchair, by by-passing the
Letter dated October 23, 1999 to Lewis Golinker, from Peggy Locke, attached as Exhibit
24. This letter was submitted to HCFA as part of the Formal Request for National Coverage
Decision for Augmentative and Alternative Communication Devices, CAG-00055, filed
December 30, 1999, and decided, April 26, 2000.
non-functional body parts and with the aid of an item of durable medical equipment -- the
LightWriter -- the original intent is accomplished.
Ms. Wright‟s Affidavit and Ms. Locke‟s letter also address the third criterion of the DME
definition: that augmentative communication devices are not useful to or used by people whose
natural speech is sufficient to engage in functional communication. No person who is able to
speak using their natural voice will have any reason to consider an augmentative communication
device, whether the LightWriter or any other. The rate at which people can produce speech is
far faster and more flexible than the rate at which they can produce a message by any other
Finally, it is without question that augmentative communication devices in general and
the LightWriter in particular are appropriate for use in the home. These devices are designed to
be portable: they are intended to be used wherever the person has a need for communication.
As to all of these factors, Ms. D.‟s request for Medicare reimbursement for a LightWriter
as DME does not raise questions of first impression. In six of the seven known Medicare AAC
administrative law judge (ALJ) hearing decisions, the ALJ approved the requested device under
the Medicare DME benefit.46 (In the other case, the ALJ approved the requested device under
the Medicare prosthetic device benefit.)47
In re: Charles MacP, Dkt No. _____________ (Social Security Admin. Office of Hrgs
& Appeals March 27, 2000); In re: Donald S., Dkt No. 000-89-3072 (Social Security Admin.
Office of Hrgs & Appeals October 1, 1999); In re: Bernadine A., Dkt No. 000-86-0336 (Social
Security Admin. Office of Hrgs & Appeals April 27, 1999); In re: Celia C., Dkt. No.
196-14-0195 ( (Social Security Admin. Office of Hrgs & Appeals December 2, 1998); In re:
Richard A., Dkt No. 000-06-0110 (Social Security Admin. Office of Hrgs & Appeals March 24,
1997); In re: Blanche B., Dkt. No. 000-24-0399 (Social Security Admin. Office of Hrgs &
Appeals May 8, 1995), attached as Exhibit 23.
In re: Emlyn J., Dkt. No. 360-09-1983 (Social Security Admin. Office of Hrgs &
Appeals August 18, 1993), attached as Exhibit 23.
In the earliest of these decisions, In re: Blanche B., the ALJ considered whether another
model of augmentative communication device, known as a Real VOIS, was durable medical
equipment. The ALJ‟s conclusion:
There is no doubt whatsoever in my mind that the computer in this case meets the
general definition of "durable medical equipment" set forth in the regulations.48
In In re: Donald S., one of the most recent, the ALJ relied on prior ALJ decisions, and reached
the same conclusion that AAC devices are DME. The ALJ in Donald S. also noted the
functional equivalence of AAC devices and wheelchairs:
The Medicare [Carrier] Hearing Officer noted that the ACD [AAC device] did not
primarily and customarily serve a medical purpose and she drew a distinction
between items used to reduce or eliminate an illness or reduce or eliminate the
effects of an illness. The opinion of the speech pathologist, the precedent of
Administrative Law Judge decisions, and common sense leads to a different
conclusion. With regard to common sense, many commonly recognized items
that Medicare approves as durable medical equipment do not cure an illness but
rather treats the effects of an illness. A wheelchair is an obvious example. It is
the means to treat the effects of an illness and provides a substitute for the body
part that is not functioning. . . .49
And, in In re: Celia C., the ALJ approved a LightWriter under the Medicare DME
benefit. The ALJ concluded:
The augmentative communication device at issue meets the definition of durable
medical equipment. It is constructed and designed for repeated use and is used in
the home. It is primarily and customarily used to serve the medical purpose of
enabling its user to communicate when she could not do so due to a serious
medical condition. It would not be useful for an individual without such serious
In re: Blanche B., Dkt. No. 000-24-0399 Slip Op. at 6 (Social Security Admin. Office of
Hearings & Appeals May 8, 1995).
In re: Donald S., Dkt. No. 000-89-3072 Slip Op. at 3-4 (Social Security Admin. Office of
Hrgs & Appeals October 1, 1999)
In re: Celia C., Dkt. No. 196-14-0195 Slip Op. at 5 (Social Security Admin. Office of
Hrgs & Appeals December 2, 1998).
That augmentative communication devices meet these four criteria is further supported
by comparison to Medicaid coverage of augmentative communication devices under its durable
medical equipment benefit.51 Medicaid, governed by Title XIX of the Social Security Act,52
covers durable medical equipment,53 but neither the statute nor the federal Medicaid regulations
provide an operational definition of this term. Instead, each state participating in Medicaid has
the discretion to create its own definition. As a general matter, durable medical equipment is
the most common benefit category under which augmentative communication devices are
classified by state Medicaid programs.54 At least eight states have copied the Medicare DME
definition in whole or substantial part and also classify, cover and provide augmentative
communication devices within the durable medical equipment benefit.55 In addition, the Health
Although Medicaid and Medicare are independent programs, comparisons between the
two are common and appropriate. For one, their statutory and regulatory terms, particularly for
durable medical equipment and prosthetic devices, are not materially different. Moreover, for
augmentative communication, reference to the Medicaid program is particularly appropriate,
because of it has a long history of coverage of augmentative communication devices. The
earliest Medicaid programs to cover augmentative communication devices did so in the
mid-to-late 1970's. See In re: Anthony M., No. 1360-79 (N.J. Office of Admin. Law July 17,
1979). In addition, Medicaid coverage is almost universal. See note 54 infra.
42 U.S.C. § 1396 et. seq.
42 U.S.C. § 1396d(a)(7); 42 C.F.R. § 440.70. Durable medical equipment is classified as
a mandatory component of the Medicaid home health care services benefit category.
Every Medicaid program that has been asked to provide augmentative communication
devices have agreed to do so. To date, 46 of the 50 Medicaid programs have had such requests
presented to them. Of this total, half classify augmentative communication devices as DME.
The second most common benefit category is prosthetic devices. See L. Golinker, "Speaking
Up In Court," 8 Team Rehab Report 19, 20(Table 1) (Feb. 1997)(listing 45 states that to that date
had approved augmentative communication devices.) In the period since that article was
published, Alabama became the 46th state to cover and provide these devices, approving its first
request in July 1998. Brown v. James, CV-98-M-663-N (M.D.Ala. 1999)(Alabama also
classifies augmentative communication devices as durable medical equipment). This article is
attached as Exhibit 25.
The states are Illinois, Ill. Dept. of Public Aid, Medical Assistance Provider Manual, §
II-M-3, M-201.2 (Dec. 1992); Indiana, 470 IAC 1-7, § 27(g), at p. A2-49 (Oct. 1, 1994); Iowa,
Iowa Dept. of Human Serv., Coverage & Limitations, Medical Equipment and Supply Dealer,
Chapt. E, page 2(b)(Jan 1, 1994), see also Iowa Medicaid Augmentative Communication Device
Care Finance Administration, the federal agency that administers both Medicaid and Medicare,
also has recognized that augmentative communication devices can be classified as Medicaid
durable medical equipment.56
Finally, as is explained in Section IV of this Memorandum, on April 26, 2000, the Health
Care Financing Administration formally announced its acknowledgment that AAC devices are
durable medical equipment under the Medicare Program.
B. Augmentative Communication Devices Are Prosthetic Devices
Funding Criteria, Medical Equipment and Supply Dealer Manual, Chapt. E, p. 12, ¶ D (Oct. 1,
1988); New Jersey, N.J. Medicaid, Medical Equipment and Supplies Supplier Manual,
Sub-Chapt. I, § 1.2 (Nov. 1979); New York, 18 N.Y.Code of Rules and Regulations, §
505.5(a)(1); North Dakota, N.D. Dept. of Human Serv., Medical Assistance Program, DME
Supplies and Guidelines, ¶ 1., South Carolina, S.C. Medicaid Home Health Serv. Manual, at p.
2-1; and Wisconsin, Wisc. Admin. Code, HSS, § 101.03(50).
See e.g., HCFA Regional Office VI, Medicaid Services Letter 95-31 (March 7,
1995)(augmentative communication devices can be classified as durable medical equipment,
prosthetic devices or an inherent component of a therapy service); HCFA Region VI, Medial
Services Letter 93-110 (Nov. 22, 1993)(citing same scope of coverage); HCFA Regional Office
III, Medicaid Letter No. 93-98 (Oct. 26, 1993)augmentative communication devices can be
classified for Medicaid coverage under the durable medical equipment, prosthetic devices or
speech-language pathology benefit categories (necessary supplies and equipment are included in
the definition of speech-language pathology benefits, 42 C.F.R. § 440.110)); HCFA Regional
Office III, Medicaid Letter 93-97 (1993)(same scope of services); HCFA Regional Office X,
State Agency Letter 93-25 (March 12, 1993)(augmentative communication devices can be
durable medical equipment or prosthetic devices).
The Medicare statute and regulations define prosthetic devices as devices "which replace
all or part of an internal body organ (including colostomy bags and supplies directly related to
colostomy care . . ."57 Other Medicare guidance clarifies this definition by noting that the focus
of the definition is functional replacement, not physical replacement. This guidance defines
prosthetic devices as devices "which replace all or part of the function of the permanently
inoperative or malfunctioning internal body organ."58 The broader "function-related"
definition may be seen as required because Medicare covers equipment like cardiac pacemakers
as prosthetic devices. Pacemakers do not replace all or part of the heart itself. Instead, they
provide electronic pulses which regulate and support heart function. Thus, to cover devices of
this kind, Medicare acknowledges that functional substitution or restoration, rather than actual
substitution of the body part itself, is a characteristic of prosthetic devices. This reasoning
applies equally to explain Medicare coverage of cochlear implants as prosthetic devices.
Cochlear implants do not replace the inner ear; rather, they substitute for and enhance its
function. See 5 CCH Medicare & Medicaid Guide, ¶ 27,210 at p. 29,283 (Oct. 1996)(current
Augmentative communication devices, including the LightWriter, satisfy these criteria.
Without question, these devices provide a functional substitute for the severely mal-functioning
or permanently inoperative body organs and other body structures needed to produce speech.
The proof of this assertion is simple and direct: when no impairment is present, the
proper functioning and coordination of the nerve pathways and muscles that control the larynx,
vocal folds or cords, tongue, teeth, and lips59 yield intelligible speech. For Ms. D., by contrast,
42 U.S.C. § 1395x(s)(8); 42 C.F.R. §§ 410.36; 414.202.
Medicare Carriers Manual, § 2130 (emphasis supplied.) Also compare 42 U.S.C. §
1395x(s)(9), which specifically identifies items that serve as physical replacements for body
organs and structures that are missing, e.g., artificial limbs and eyes.
See G. Shames and E. Wiig, Human Communication Disorders 77 (3d Ed. 1990)(Figure
3.1: Human vocal organs).
the functioning and coordination of these body organs and other body structures is substantially
impaired as a result of her cerebral palsy. The result is that she lacks intelligible speech, i.e. she
has severe dysarthria.
There is no question that Medicare recognizes speech loss as a function sufficiently vital
to provide prosthetic devices. Medicare has express guidance identifying two types of devices
that provide functional substitutions for the larynx and thereby help their users produce speech
using their natural voice mechanisms. One is commonly known as an artificial larynx.60 The
other is commonly known as a tracheostomy speaking valve.61 In contrast to these devices,
augmentative communication devices, such as the LightWriter, also provide a functional
substitution for the speech function, but they are necessary in different circumstances: when
disease or disability makes it impossible for the person to use his/her natural voice to produce
functional speech.62In re: Blanche B., supra, slip op. at 5.
More directly on point regarding coverage of augmentative communication devices is In
re: Emyln J.,63 In re: Emyln J. also is notable because, like the Blanche B. decision, the ALJ
5 CCH Medicare & Medicaid Guide, National Coverage Decision 65-5, ¶ 27,201, at p.
29,277 (April 1993).
5 CCH Medicare & Medicaid Guide, National Coverage Decision 65-16, ¶ 27,201, at p.
29,284 (October 1996).
In In re: Blanche B., Judge Levin compared these two types of speech prostheses and
concluded, correctly, that the artificial larynx and tracheostomy speaking valve and an
augmentative communication device such as the LightWriter, are not comparable.
The simple fact is that the item [a RealVois augmentative communication device]
is not an "electronic speech aid" as described in that NCD [national coverage
decision] --it is an entirely different type of electronic equipment that substitutes
voice simulation [sic: synthesis] evoked by non-speech organs for ordinary or
augmented speech generated in part by the customary vocal apparatus. I
therefore do not conclude . . . that NCD precludes a finding that the item here at
issue is not a covered "prosthetic device" within the meaning of § 410.36(b) of the
In re: Emyln J., No. 360-09-1983 (Social Security Admin. Office of Hearings & Appeals
Aug. 18, 1993).
also concluded that the requested augmentative communication device is not a device
comparable to the artificial larynx. Thus, the ALJ in this case made no findings that the national
coverage decision related to the artificial larynx had any direct effect on the question of
augmentative communication device coverage. in which a Medicare Administrative Law Judge
expressly ruled that a computer-based augmentative communication device is covered as a
Medicare prosthetic device. The beneficiary in that case had a stroke, and had been provided
with a lap-top computer that functioned as an augmentative communication device (through the
addition of a speech-synthesizer and speakers, and augmentative communication software). At
the ALJ hearing, the beneficiary, through the computer, was able to state directly the effects of
and benefits derived from use of the device. These are identical to the intended effects the
LightWriter have for Ms. D.:
He [the beneficiary] explained how the computer had opened up his life to
express himself . . . "My computer has opened up my life again by allowing me to
express my thoughts coherently to myself and others. Through the computer, my
doctors and I estimate that 95 percent of my pre-stroke vocabulary had returned.
Although the typing process is slow and laborious for me, the joy of expression
and communication is unsurpassed. . . ."64
In In re: Emyln J., the Medicare ALJ specifically concluded the requested device
satisfied the Medicare definition of prosthetic devices, concluding that the augmentative
communication device provides a functional substitute for the "functioning of his damaged
cerebral speech/communication center."
The evidence clearly demonstrates that the claimant, now age 70, suffered a
severe stroke rendering the right side of his body nonfunctional and significantly
damaged the communication/transmission part of his brain to the extent that he is
mute. His introduction to the computer and subsequent learning of the device
has resurrected to a great measure his ability to communicate and become much
more functional to the extent that he can maintain greater independent living. It
has essentially replaced, as argued by counsel, the malfunctioning part of his body
(brain) that caused significant communication limitations. . . . The Act does not
preclude a computer from being a prosthetic device. In fact, due to the peculiar
Id., slip op. at 3.
facts of this case as well as the unusual medical and related facts involved, it [the
augmentative communication device] clearly satisfies the statutory definition of a
prosthetic device as it replaces part of the function of an impaired body organ, Mr.
The ALJ continued, and addressed a factor previously mentioned here: that one of the effects of
the loss of speech function is the loss of connection to the world. The ALJ expressly noted that
for this beneficiary,
[t]here is no question, given the evidence, that the computer has restored and
improved his life. . . . Without this device, as the evidence points out, the
claimant's life would continue to be severely restricted and his ability to enjoy the
fruits of life would not be available.66
In addition, at least 7 other Medicare decisions -- 4 additional A.L.J. decisions, one
decision issued by a Medicare HMO and two issued by DMERCs, have all approved
augmentative communication devices similar to the LightWriter as prosthetic devices.67
As with DME, further support for the conclusion that augmentative communication
devices in general, and the LightWriter in particular, are prosthetic devices can be gleaned by
comparison to the Medicaid program. Medicaid defines prosthetic devices as devices which:
(1) artificially replace a missing portion of the body;
(2) prevent or correct physical deformity or malfunction; or
(3) support a weak or deformed portion of the body.68
Id. at 4-5.
Id. at 5.
See In re: Charles MacP __________ (Social Security Admin. Office of Hrgs & Appeals
March 27, 2000); In re: Donald S., Dkt. No. 000-89-3072 (Social Security Admin. Office of
Hrgs & Appeals October 1, 1999); In re: Bernadine A., Dkt. No.000-86-0336 (Social Security
Admin. Office of Hrgs & Appeals April 27, 1999); In re: Richard A., Dkt. No. 000-06-0110
(Social Security Admin. Office of Hearings & Appeals March 24, 1997), attached as Appellant‟s
Exhibit 23; In re: Bertha K., Member No. 363324167-1 (Mcare Medicare HMO March 4,
1998)(approving a Link augmentative communication device as a prosthetic device); In re:
Ruth G., Claim No. 212-05-3650 (Region B DMERC Jan. 10, 1998)(same); In re: Jesse K.,
Claim No. 587-50-1488A (Region C DMERC April 24, 1998)
42 C.F.R. § 440.120(c).
Augmentative communication devices, such as the LightWriter, satisfy the second sub-¶
of this definition, which is not substantively different than the Medicare prosthetic device
definition. Both require prosthetic devices to address physical malfunction: for Medicare, the
devices "replace" lost function; for Medicaid, they "correct" lost function. Prosthetic devices is
the second most common benefit category under which state Medicaid programs classify
augmentative communication devices.69
Medicaid programs throughout the country recognize that under the federal Medicaid
regulations, "prosthetic devices can be defined in functional terms,"70 and that augmentative
communication devices satisfy the prosthetic device definition because they correct a physical
malfunction of the body, namely a malfunction of the speech centers of the brain and vocal
muscles,71 and other body organs and structures involved in the production of speech, by
providing augmented or alternative speech.
Clearly, an [augmentative communication device] is a replacement device to
correct a physical malfunction of the body and therefore, qualifies as a prosthetic
device as defined by 42 CFR § 440.120 . . . . As stated, an [augmentative
communication device] satisfies the federal definition of Prosthetic Devices . . . .72
See "Speaking Up In Court, supra, note 54, Exhibit 25. It identifies 12 states that as of
late 1996 classified augmentative communication devices as prosthetic devices. More recently,
the Colorado legislature enacted legislation that classifies augmentative communication devices
as prosthetic devices. Mapp v. Beuscher, No 98 CA 0287, Motion for Voluntary Dismissal, ¶¶
2-4 (Colo. Court of Appeal filed May 13, 1998).
In re: Donald R., Dkt. No. 343-002967-2-01 Slip Op. at 5 (Ohio Dept. of Human Serv.
Jan. 13, 1989); see also Fred C-II, 988 F.Supp. at 1037; Fred C.-I, 924 F.Supp. at 792.
In re: Sharon H., Appeal No. 13,919 (Vermont Human Services Board Jan. 8, 1996).
In re: Anonymous, Dkt. No. 4110013, Slip Op. at 7 (Louisiana Dept. of Health &
Hospitals June 13, 1995). Accord, In re: Betty J., Dkt. No. 405310 Slip Op. at 6-7 (Louisiana
Dept. of Health & Hospitals Dec. 24, 1994); see also In re: Stephanie M., Appeal No.
93-98-7-4 Slip Op at 8 (Idaho Dept. of Health & Welfare April 29, 1993)("an [augmentative
communication device is] . . . an instrument for the mitigation of disease which is intended to
affect the function of the body . . . to mitigate the effects of the neuromuscular disorder by
assisting the function of the hand and tongue in communication."); In re: Nicholas R., Dkt. No.
92-SHCO-588 Slip Op. at 4 (Ohio Dept. of Human Services Jan. 5, 1992)("The rule speaks to
the correcting of physical deformity or 'malfunction.' There is no dispute that Appellant is
incapable of forming words due to physical malfunction."); In re: Donald R., Dkt. No.
In addition, the Health Care Finance Administration has issued numerous policy letters which
acknowledge that augmentative communication devices can be classified within the prosthetic
In sum, augmentative communication devices such as the LightWriter satisfy the criteria
of both the Medicare durable medical equipment and prosthetic device benefits categories.
Augmentative Communication Devices are Reasonable
and Necessary for Treatment of Illness or Injury
The Medicare Act provides payment only for covered "items or services" that are
"reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the
functioning of a malformed body member."74 Medical necessity is described in other Medicare
guidance as follows:
Equipment is necessary when it can be expected to make a meaningful
contribution to the treatment of the patient's illness or injury or to the
improvement of his malformed body member.75
Reasonableness is likewise further defined to be based on the following factors:
(1) would the expense of the item to the program be clearly disproportionate to the
therapeutic benefits which could ordinarily be derived from use of the equipment?
343-002967-2-01 Slip Op. at 5 (Ohio Dept. of Human Services Jan. 13, 1989)("the Touch Talker
[another model of augmentative communication device] functions as a prosthesis and/or orthosis
. . . when the device is used to correct a physical malfunction. Although appellant's larynx may
be operational, the brain centers controlling speech are non-functional . . . ."); Lloyd, Fuller &
Arvidson (eds.), Augmentative and Alternative Communication: Handbook of Principles and
Practices 11, 523, 538 (1977)(defining augmentative communication devices as prosthetic
devices, i.e., artificial devices, often mechanical or electrical, used to replace a missing part or
assist a defective part of the body).
See note 56, supra.
42 U.S.C. § 1395y(a)(1).
Medicare Carriers Manual, § 2100.2, reprinted in 1 CCH Medicare & Medicaid Guide, ¶
3144, at p. 1120 (1994).
(2) is the item substantially more costly than a medically appropriate and realistically
feasible alternative pattern of care?
(3) does the item serve essentially the same purpose as equipment already available to the
Augmentative communication devices, like Ms. D.‟s LightWriter, are entitled to
Medicare coverage and reimbursement because they squarely meet these standards.
Augmentative communication devices are necessary, first, because they are generally
recognized by the professional medical community, and extensive published, professional
research literature as treatment for expressive communication disabilities, such as Ms. D.‟s
severe dysarthria.77 Such treatment is necessary because, as has been noted in this
memorandum, the ability to speak and communicate is "vital," and because these devices
represent the only form of treatment that will enable persons with such disabilities to regain
functional speech abilities. As to Ms. D., there is no question that her LightWriter -- like her
Medicare reimbursed VOIS 140 14 years ago -- will make a "meaningful contribution" to
treatment of her dysarthria.
The degree of this contribution also makes clear that providing augmentative
communication devices is reasonable. For Ms. D., the expense of the LightWriter is
insignificant when compared to the therapeutic benefits it will provide, i.e., by the degree of
functional communication improvement that will be realized. As others have stated in the
Exhibits filed with this Memorandum, and as Ms. D. has stated herself, she is able to achieve full
conversational communication, the highest level of functional communication recognized by
Medicare criteria and the closest to normal functioning. With -- and only with -- the
Id. ¶ 3144, at 1121.
See Exhibits 16 - 20. See also, the Formal Request for National Coverage Decision for
Augmentative and Alternative Communication Devices, which offers a comprehensive review the
professional literature regarding AAC interventions. The Formal Request can be reviewed a the
LightWriter, Ms. D.‟s functional communication has improved from completely unintelligible
even to familiar listeners, as reported by Mr. Hammond, her SLP, to as close to normal
communication as can be achieved with an AAC device. This represents the greatest possible
degree of improvement in her functional communication abilities.
Moreover, as noted above, the emotional benefits to Ms. D. and her family to be able to
speak -- to each other, to other family members, to friends and to others -- are incalculable.
The Medicare decisions previously mentioned herein provide further support. Each
prior decision approved funding for augmentative communication devices because these devices
were determined to have satisfied the reasonable and necessary standard. In each case, the
decision makers reported the functional gains made possible by these devices. As noted above,
these functional gains are the same as -- or less significant than -- those expected for Ms. D..
A finding that augmentative communication devices as a class of devices are medically
necessary and reasonable is also supported by the policy and practices of every major
health-focused funding and benefits program -- including Medicare, as noted above -- which
cover and provide these devices.78 This list includes other federal health-benefits programs,
such as Medicaid programs,79 CHAMPUS80 and the Department of Veterans Affairs,81 as well
as private health-benefits programs, including hundreds of commercial health insurance
As a general matter, disputes and appeals related to augmentative communication device
funding is the exception rather than the rule. Far more typical is that policy-based decisions
about coverage as well as individual fact-based decisions regarding funding are made without
controversy, and have supported both augmentative communication device coverage and
See Affidavit of Phil Saines, Funding Coordinator of Assistive Technology, Inc., ¶ 2,
submitted in In re: Celia C., and attached as Exhibit 26; Affidavit of Yvette Walden, Supervisor
of the Funding Department, Dynavox Systems, Inc., ¶ 4, submitted in In re: Celia C., and
attached as Exhibit 27; see also fn 54, supra.
providers and managed care organizations.82 All of these programs provide funding only for
treatments that are medically necessary, and all insist that only the least costly equally effective
alternative treatment be provided.
In addition, all of the federal courts that have considered the medical necessity of
augmentative communication devices within the Medicaid program have concluded that they
met this standard. One case, Myers v. State of Mississippi,83 was an omnibus challenge to a
state policy that augmentative communication devices never were medically necessary. Upon
review of testimony outlining more than two decades of professional literature, policy and
practice regarding augmentative communication, however, the district court rejected the state's
position. The court concluded the view that augmentative communication devices are never
medically necessary was "manifestly wrong."84 Likewise, in Meyers v. Reagen,85 Fred C.,86 and
Hunter,87 the courts all concluded that augmentative communication devices were medically
necessary for specific individuals and directed that they be provided.
In sum, there is abundant evidence about augmentative communication in general to
conclude that these devices satisfy the Medicare reasonable and necessary criteria. Likewise,
there are sufficient facts specifically regarding Ms. D.‟s LightWriter to support the same
conclusion: that it, too, satisfies the Medicare “reasonable and necessary” standard.
See Exhibits 26 and 27; see also Myers v. State of Mississippi, 3:94-CV-185 LN Slip Op.
at 12 (S.D. Miss. June 23, 1995)(acknowledging fact that hundreds of insurers provide
augmentative communication devices).
3:94-CV-185 LN (S.D.Miss. June 23, 1995).
Id. Slip Op. at 13.
776 F.2d 241 (8th Cir. 1985)
924 F.Supp. 788 (W.D.Tex. 1996), vacated and remanded on other grounds 117 F.3d
1416 (5th Cir. 1997)(Table) on remand 988 F.Supp. 1032 (W.D.Tex. 1997), affirmed per
curiam, 167 F.3d 537 (5th Cir. 1998)(Table).
944 F.Supp. 914 (S.D.Fl. 1996).
There are No Coverage Limitations Or Program
Exclusions that Preclude Medicare Coverage
and Funding for Augmentative Communication Devices
As noted by the ALJ in In re: Blanche B.:
There are three sources of law to which an Administrative Law Judge must look
in determining whether an item or service is covered under the Medicare Part B
program: the statute (Social Security Act, Title XVIII); regulations officially
promulgated pursuant thereto; and certain formally-published National Coverage
Determinations (NCD's) issued by the Health Care Financing Administration
In re: Blanche B., No 000-24-0399, Slip Op. at 4-5. (Social Security Admin. Office of Hearings
& Appeals May 8, 1995), attached as Exhibit 23. Upon further review, the ALJ concluded there
is no binding authority that precludes a finding in favor of Medicare coverage and funding for
augmentative communication devices. This conclusion also was reached by each of the other
Medicare Administrative Law Judges who have reviewed augmentative communication device
claims, and approved them.88
The Medicare Act and regulations describe the “certain ... National Coverage
Determinations” referenced above. National Coverage Determinations (NCD‟s) are “binding”
on ALJs when they are based on the Medicare “reasonable and necessary” provision, 42 U.S.C. §
HCFA makes NCDs either granting, limiting, or excluding Medicare coverage for
a specific medial service, procedure or device. NCDs are made under section
1862(a)(1) [42 U.S.C. § 1395y(a)(1)] of the Act or other applicable provisions of
the Act. An NCD is binding on all Medicare carriers . . . . when published in
HCFA program manuals or the Federal Register.
Under section 1869(b)(3) of the Act [42 U.S.C. § 1395ff(b)(3)] only NCDs made
under section 1862(a)(1) of the Act are subject to the conditions of paragraphs
(b) through (d) of this section.
See Exhibit 23.
See 42 U.S.C. § 1395ff(b)(3)(A).
(b) Review by an ALJ. (1) An ALJ may not disregard, set aside or otherwise
review an NCD.90
Other Medicare guidance provides instructions regarding how to tell whether a National
Coverage Determination is based on § 1395y(a)(1) and is therefore binding.
All [National Coverage] decisions that items, services, etc. are not covered are
based on § 1862(a)(1) of the Social Security Act (the “not reasonable and
necessary” exclusion) unless otherwise specifically noted. Where another
statutory authority for denial is indicated that is the sole authority for the
The highlighted passages in the preceding paragraphs were provided because they
establish that the National Coverage Decision related to AAC devices, found at Medicare
Coverage Issues Manual, § 60-9, is NOT binding on administrative law judges.
The AAC device NCD states in full that AAC devices are “convenience items; not
primarily medical in nature (§ 1861(n)) of the Act.”
Applying the rules set forth in the Medicare regulations and manuals, the AAC National
Coverage Determination is NOT binding on ALJs. This guidance is not binding because it is
not based on 42 U.S.C. § 1395y(a)(1), but instead, it states it is based on § 1861(n) of the Act,
which is the definition of durable medical equipment.92 According to the regulations, only
National Coverage Determinations based on 42 U.S.C. § 1395y(a)(1) are binding.
In addition, the AAC device National Coverage Determination deserves no deference.
In the period generally believed to be before the AAC Device NCD was written, Medicare had
42 C.F.R. §§ 405.860(a)(1); (a)(2); (b)(emphasis supplied).
Medicare Coverage Issues Manual, Forward, § A.
42 U.S.C. § 1395x(n).
42 C.F.R. § 405.860(b). In May 1997, HCFA issued revised administrative appeal
regulations applicable to Medicare claims which made clear the distinction between different
types of coverage determinations. See 62 Fed. Reg. 25,844 25,848 (May 12, 1997) attached as
Exhibit 28. The preamble to the regulations confirms the correctness of the ALJ‟s analysis and
conclusion in In re: Blanche B., that the augmentative communication device National Coverage
Determination is not binding.
approved at least 2 AAC devices. The first, in March 1981, approved an AAC device as a
prosthetic device; then in September 1986, Medicare approved Ms. D.‟s first device, concluding
that her VOIS 140 was not a personal comfort item, but instead, was both an item of durable
medical equipment and a prosthetic device.94 Since 1993, notwithstanding the NCD, no
Medicare ALJ (the first Medicare decision maker with discretion not to follow the NCD) has
found it to be credible or persuasive.95
Of greatest significance, according to the Health Care Financing Administration, there is
no known basis for this National Coverage Determination. No records exist to identify when it
was first written, the expertise of the person(s) who wrote it, or what was considered before it
was issued. There appears to be no administrative record whatsoever related to this National
Coverage Determination -- it merely exists.96 Moreover, HCFA has admitted that no search of
relevant professional literature was conducted before this national coverage determination was
issued, and no input was sought from HCFA medical officers.97 This National Coverage
Determination also has never been reviewed or updated.
The AAC device NCD stands in stark contrast to the almost 30 years of speech-language
pathology professional literature, policy, and practice that contradicts its “convenience item”
conclusion, as well as the continued policy development of all other similar funding programs --
including Medicaid, which also is administered by HCFA -- which now offer almost universal
The 1981 AAC device approval is attached as Exhibit 29 Ms. D.‟s 1986 AAC device
approval is attached as Exhibit 21.
See Exhibit 23.
See Letter dated July 8, 1998 to Ms. Elizabeth Carder, Esq., from Philip Brown, Director,
HCFA Division of Freedom of Information and Privacy, attached as Exhibit 30
Grant Bagley, M.D., Former Director of the Coverage and Analysis Group, HCFA Office
of Clinical Standards and Quality, stated in response to questions posed about the development
of the guidance found in Coverage Issues Manual § 60-9 that no medical literature search ever
was conducted and no staff-prepared background paper exists for AAC devices. Response by
Grant Bagley, M.D., to Plaintiff‟s First Set of Interrogatories, filed in Rhode Island Disability
Law Center v. U.S. Department of Health & Human Services, No. 98-415T (D.R.I.)
coverage and funding of AAC devices. These programs apply principles and vocabulary that
are identical or substantially similar to Medicare, and all conclude AAC devices are durable
medical equipment, prosthetic devices, and both reasonable and necessary. In addition,
AAC such as the LightWriter have no characteristics in common with items that Medicare
identifies as convenience items within the durable medical equipment benefit category. These
items are described as "[e]quipment which basically serves comfort or convenience functions or
is primarily for the convenience of a person caring for the patient, such as elevators, stairway
elevators, and posture chairs."98 A brief review of some of the other types of equipment
designated as convenience items in the same list of National Coverage Determinations -- carafes,
overbed tables, raised toilet seats, telephone arms, and air conditioners, for instance -- makes all
the more clear that this designation is inappropriate for augmentative communication devices.99
Augmentative communication devices, in contrast to these others, restore a vitally
important basic human functional ability lost due to illness or disease: expressive
communication. As noted previously in this memorandum, the ability to speak and to use
language is a defining characteristic of the human species -- none of these other devices
addresses functional issues of comparable significance.
Yet another reason not to offer deference to the AAC Device National Coverage
Determination is that HCFA has re-reviewed it and determined that it should be withdrawn. In
June 1999, an aide to the HCFA administrator contacted Ms. D.‟s attorney and asked that he
submit a Formal Request for Medicare to re-review the AAC device “convenience item”
guidance. On December 30, 1999, a Formal Request for National Coverage Decision for
1 CCH Medicare & Medicaid Guide, ¶ 3144.14, at p. 1128.
Id., at ¶ 27,221 at 29,802-07. One of these devices is called a speech-teaching machine.
However, the type of device this refers to is unknown. It clearly is not an augmentative
communication device like the LightWriter. Ms. D., for example, has had more than 2 years of
college education. She does not seek and she does not need a "speech teaching device." Rather
she seeks a device that will let her produce speech. She has no need to be "taught" to speak; the
LightWriter will not do this; and based on her dysarthria, it would be a futile effort.
Augmentative and Alternative Communication Devices, was filed by Ms. D.‟s attorney, on behalf
of 13 organizations representing every interest related to Medicare coverage of AAC devices.
That document can be reviewed at www.augcominc.com. Following its submission to HCFA,
the Formal Request was peer-reviewed by the American Medical Association, the American
Academy of Neurology, and the American Academy of Physical Medicine and Rehabilitation.
Each of these professional medical societies found the Formal Request to be a complete and
correct description of the professional literature about AAC interventions, and about the clinical
decision making process leading to AAC device recommendations and prescriptions. See
Exhibits 16 - 20.
On April 26, 2000, HCFA announced its response to the Formal Request. It stated that it
will withdraw the “convenience item” guidance, and concluded that AAC devices constitute
durable medical equipment.
The decision that AAC devices were "convenience items" and thus did not fit a
benefit category had been made a number of years ago. In response to the
requestors, CHPP has reversed this decision and has now decided that AAC
devices are a Medicare benefit in the category of durable medical equipment
Thus, there is no binding national Medicare guidance that precludes a favorable decision
on Ms. D.‟s appeal, and even the Health Care Financing Administration now acknowledges that
its non-binding AAC guidance is incorrect and will be withdrawn.
Coverage Policies, Review Issues, Augmentative and Alternative Communication
Devices, (#CAG-00055), Decision Memorandum, April 26, 2000, attached as Exhibit 31. See
also Letter dated May 8, 2000 to Nancy Ann Min DeParle, Administrator, Health Care Financing
Administration, from the Representative Tom Allen, attached as Exhibit 32.
Augmentative communication devices have the ability -- like other items of durable
medical equipment and prosthetic devices that Medicare covers and reimburses -- including
wheelchairs,101 artificial limbs,102 pacemakers,103 and cochlear implants104 -- to by-pass or
substitute for non-functioning body parts and to thereby restore functional abilities sufficient to
allow their users to participate fully in society. They accomplish these goals even though none
of these devices "cures" impairments. Rather, they eliminate impairments' limiting effects on
individual functioning and allow their users to participate in normal activities. See In re:
Donald S., Slip Op. at 3-4.
In light of Ms. D.‟s quadriplegia and dysarthria, that the LightWriter permits "normal
activities" proves beyond question that it is not a convenience -- a conclusion long recognized by
Medicare ALJs and by every other health-benefits funding program in the United States, and
now officially recognized by Medicare itself. See Exhibit 32. Indeed, the functional abilities
the LightWriter will provide to Ms. D. would be far more accurately described as an
extraordinary event: one that might seem more like magic than medicine. As Ms. D.‟s uncle
Medicare coverage for wheelchairs is authorized by 42 U.S.C. § 1395x(n). In the
Medicaid program, numerous states have equated the functional purposes served by wheelchairs
with those served by augmentative communication devices. For example, New Jersey and
Minnesota Medicaid, which have covered and provided augmentative communication devices
-- for both children and adults -- since 1979 and 1984, respectively, both recognize the
equivalent functional benefits and roles of communication devices and wheelchairs. See In re:
Anonymous-I (Minn. Dept. of Human Services April 30, 1984); In re: Anonymous-II (Minn.
Dept. of Human Services April 30, 1984); In re: John P., No. 7454-82 (NJ Office of Admin.
Law Dec. 8, 1982); In re: Kevin K., No. 2938-81 (NJ Office of Admin. Law Sept. 1, 1981); In
re: Anthony M., No. 1360-79 (NJ Office of Admin. Law July 17, 1979).
See 42 U.S.C. § 1395x(s)(9).
See 1 CCH Medicare & Medicaid Guide ¶ 3152 at p. 1152 (Jan. 1990).
Cochlear implants are covered by Medicare pursuant to National Coverage Determination
65-14. 5 CCH Medicare & Medicaid Guide, ¶ 27,201, at p. 29,283 (Oct. 1996).
xplained, cerebral palsy and dysarthria has “imprisoned” her in a body that does not function
across a wide spectrum of abilities and tasks that others take for granted.[cite]
Access to augmentative communication, formerly through the VOIS 140, and now
through the LightWriter -- and nothing else -- has changed that. Its effect, in the words of the
claimant in as the claimant in In re: Emyln J. “opens up [her] life”105 and enables her to function
as an active, articulate, independent adult. These abilities are no less significant an occurrence
than if Ms. D. were to awaken from a coma.
That the LightWriter enables Ms. D. to have a normal life, despite her communication
disability, is completely consistent with every relevant Medicare coverage and funding
criterion. Indeed, there is an unfortunate irony here: Ms. D. already demonstrated -- 14 years
ago -- that an AAC device she uses meets all the relevant Medicare standards for coverage and
necessity, and yet, she must go through a lengthy appeal process at this time. But no basis exists
for there to be a different outcome: there have been no material changes in her condition, the
device she uses is a replacement for one that lasted for 8 years and then ceased to function, and
there have been no relevant changes in law or regulation.
In sum, this case is ready for summary determination on the record: there are no facts in
dispute, there are no legal impediments to providing Medicare reimbursement to Ms. D., and
there is no material difference between this appeal and any of the others in which reimbursement
for AAC devices was awarded. The devices sought in those cases include the same one as Ms.
D. uses: the LightWriter, and other devices that are indistinguishable in terms of both their
capabilities and benefits conveyed. The only possible barrier to a favorable decision here is the
AAC device national coverage decision, but this has been withdrawn and would not otherwise be
entitled to any deference.
Exhibit 23, Slip op. at 3.
Thus, no basis exists for this appeal to reach any result other than the award of
reimbursement for the LightWriter Ms. D. uses.
Dated: Ithaca, New York
May 12, 2000
Attorney for Kimberly D.
Suite 507, 202 East State Street
Ithaca, New York 14850