UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
In the Matter of Celia C.
On Appeal from the Denial of
Medicare Part B Benefits H. Anyel, A.L.J.
APPELLANT'S MEMORANDUM OF LAW IN SUPPORT OF
COVERAGE FOR AN AUGMENTATIVE COMMUNICATION DEVICE
August 27, 1998
Lewis Golinker, Esq.
Suite 507, 202 East State Street
Ithaca, New York 14850
voice: 607-277-7286; fax 607-277-5239
Mrs. Celia C., a Medicare beneficiary, age 79, brings this hearing to seek approval and
funding for a "Lightwriter," a type of augmentative communication device. Mrs. C. seeks a
Lightwriter because it is the only form of treatment that will provide functional improvement for
her severe speech disability.
Mrs. C. has Amyotrophic Lateral Sclerosis, commonly known as ALS or "Lou Gehrig's
Disease." ALS is a fatal, neurological disease that is marked by the progressive deterioration of
motor nerve cells. ALS causes weakness and atrophy of muscles, and corresponding loss of
function, including that of speech.
In July 1997, Mrs. C. was evaluated by Ms. Jeri Weinstein, Chief of Speech-Language
Pathology Services, Beth Israel Medical Center, and was diagnosed as having anarthria, an
impairment characterized by the complete inability to speak. Anarthria represents the most
severe degree of speech disability caused by ALS.
Despite its severity, speech-language pathology treatment exists for anarthria.
Augmentative communication devices are a long-recognized form of speech-language pathology
treatment for severe expressive communication disabilities, including anarthria. Augmentative
communication also is well recognized as a form of treatment for functional speech losses caused
by ALS. Most significantly, for persons with ALS recommended for augmentative
communication devices, they will represent the only form of treatment that will be effective for
achievement of functional, speech-language pathology goals.
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.
Mrs. C. is enrolled in a Medicare HMO, the HIP Health Plan of Florida. In July 1997,
based on Ms. Weinstein's recommendation and with the concurrence of her treating physician,
Mrs. C. requested that the HMO approve and provide funding for this device.
In response, the HMO denied her claim initially and on appeal. The sole reason offered
was that augmentative communication devices are not covered as Medicare benefits. Upon
review, however, these decisions are incomplete: they address only whether augmentative
communication devices are covered under the Medicare durable medical equipment benefit,
omitting entirely consideration whether the Lightwriter is covered as a prosthetic device. Even
as to durable medical equipment, these decisions are based solely on guidance that is not
binding on Administrative Law Judges. Moreover, that guidance, according to the Health Care
Finance Administration, has no known basis, and it is overwhelmingly contradicted by
professional medical literature, policy and practice, and by two decades of policy and practice by
other funding and benefits programs. Most significantly, this guidance has not been followed
by other Medicare Administrative Law Judges in identical circumstances.
In sum, Mrs. C.'s appeal must be approved for four reasons: first, because the
augmentative communication device recommended and prescribed for her use meets all the
relevant criteria for two benefits categories covered by Medicare Part B; second, because the
Lightwriter represents the only form of treatment that will be effective for Mrs. C.'s
communication disability; third, because there are no Medicare limitations or exclusions
applicable to her request.
Finally, Mrs. C.'s request for a Lightwriter must be approved, now, because time is
fleeting: she has a fatal, progressive impairment, one component of which -- her speech disability
-- is readily treatable. However, due to the nature of Mrs. C.'s enrollment in a Medicare HMO,
she does not yet have access to this treatment and unless and until a favorable decision on this
appeal is rendered, Mrs. C. will continue to be denied the benefits of this treatment.
STATEMENT OF FACTS
A. Personal Facts
Celia C.’s anarthria makes it impossible to obtain personal information directly.
Instead, the following personal information was obtained from her husband: preparing this
section of this memorandum of law is a paradigm of the issues presented by this hearing: Mrs. C.
is an intelligent person who is capable of providing these facts as well as engaging in all other
aspects of preparation for her appeal hearing, except she has no way of expressing her answers
to her attorney’s or her husband’s questions.
From her husband, the following facts were learned: Celia C. is 79 years old. She was
born in 1919 in Warsaw, Poland, and emigrated to the United States in 1940, after the Nazi
invasion of her country, to escape persecution. At the time she entered the United States she
spoke no English. As a young adult, she worked in a millinery factory and ultimately became a
supervisor in a clothing manufacturing company in New York City. She retired from her
employment in 1980.
Mrs. C. has been married to her husband Jack, for 55 years. She has two children, a son
and a daughter, and two grandchildren, ages 19 and 23. She also has 2 sisters and a brother still
living; her husband also has a sister who is still living. These siblings have created a wide
extended family with many nieces and nephews. Before the onset of her ALS, Mrs. C. enjoyed
frequent communication with these family members, including conversations with her children
on a weekly or more frequent basis.
The C.s have lived in New York City throughout the marriage and also have a
cold-weather month residence in south Florida.
In addition to ongoing contact with family members, the C.s maintained an active social
life. Mrs. C. was described by her husband as outgoing, with many friends. Social contacts
included frequent telephone conversations and in-person socializing.
In general, both Mrs. C. and her husband were in good health, despite their advancing
This description of the C.’s life-style and life-experiences began to change in 1995, when
Mrs. C. began to experience symptoms of Amyotrophic Lateral Sclerosis, more commonly
known as ALS or Lou Gehrig's Disease.
B. Impairments Related to Mrs. C.'s ALS
ALS is a neuro-degenerative disease characterized by loss of upper and lower motor
neurons leading to progressive loss of motor function1 As the disease progresses, the ALS
patient loses the ability to move, speak, swallow and eventually to breathe.
ALS steadily progresses in the majority of cases, and progression may be rapid in
some patients. Muscle weakness may be mild at first but gradually, over time, it
becomes more pronounced and spreads to other regions of the body. The patient
eventually becomes paralyzed and death usually occurs as a result of respiratory
insufficiency related to paralysis.2
ALS is a fatal disease, and once diagnosed, the average life span of a person with ALS is 2-5
Loss of speech function is a well recognized secondary disability related to ALS.
Among the most common speech disabilities associated with ALS is a condition called
dysarthria.4 It is caused by the progressive weakness, incoordination and ultimate paralysis of
the nerves, muscles and other body organs and structures used in speaking.5 Dysarthria can
range from mild speech production problems, where only a few sounds may be slurred or
H. Mitsumoto, M.D., "Diagnosis and Progression of ALS," in R. Miller, M.D., ed.,
Amyotrophic Lateral Sclerosis Standard of Care Consensus Conference, 48 J. NEUROLOGY S-2
(1997)(hereafter, "ALS Care Consensus Conference").
Id. at S-6.
Id. at S-2.
R. Sufit, M.D., "Symptomatic Treatment of ALS," in ALS Care Consensus Conference,
supra, at S-15; THE MERCK MANUAL at 1438 (25th Ed. 1987).
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).
indistinct (unintelligible), to a complete inability to speak intelligibly or even make guttural
sounds. The latter state, anarthria, which describes Mrs. C.'s condition, is characterized by
complete speechlessness, and represents the most severe stage of dysarthria.6 However, neither
dysarthria nor anarthria compromises receptive communication abilities (the ability to
understand what is spoken or written).7
In addition to anarthria, Mrs. C.'s ALS has progressed to the point where she is no longer
able to chew and swallow food, or control the production of saliva. To ensure she receives
adequate nutrition, she has been given a percutaneous endoscopic gastronomy, or P.E.G., a
feeding tube directly into her stomach. She takes no food by mouth. She also is given
medication to control her drooling. Absent such measures, Mrs. C. is at risk of choking, and
possibly death, from her food or her own secretions.
Despite these ALS-related functional losses, Mrs. C. is still ambulatory and is still
capable of leading an active lifestyle.
However, Mrs. C.'s experiences with anarthria reinforce strongly the statement that loss
of the speech function is "not a loss of life, but a loss of access to life."8 For example, Mrs. C.
continues to prepare meals for her husband, but she goes shopping alone only rarely, and only
when she is reasonably certain she will not have to communicate with others. Otherwise, she is
always accompanied by her husband to shop or for any other community-based transactions.
Mrs. C.’s speech function is completely lost and her writing ability is not sufficient to
compensate for her loss of speech. As Ms. Weinstein noted in her evaluation report:
Darley, Aronson & Brown, Motor Speech Disorders 2 (1975).
Id. Mrs. C.'s residual receptive communication abilities are reported by Ms. Weinstein,
in Hearing Exhibit 2.
This statement was made by another adult augmentative communication device user.
See Stuart, Vanderhoof & Beukelman, "Topic and Vocabulary Use Patterns of Elderly Women,"
9 AAC 95 (1993)(quoting D. Beukelman & K. Garrett, "Augmentative and Alternative
Communication for Adults with Acquired Severe Communication Disorders," 3 AAC 104
She tries to communicate by writing, but gets frustrated with the slowness. The
mechanics of her writing are also poorly intelligible which her husband explains
is a pre-morbid deficit.9
As a general matter, Mrs. C.'s husband accompanies her whenever she leaves the house and is
responsible for all communication tasks.
Other examples of "loss of access to life" include the inability to be left alone: although
Mrs. C. has a PERS, or personal emergency response system, which can be used to summon
assistance in an emergency, she has no means by which she can tell those responding to her
distress call what was the matter. In addition, if anything happened to her husband, Mrs. C.
would be unable to explain what had happened; if Mr. C.’s health problem arose while they were
out in the community, Mrs. C. would not even be able to use the PERS to summon help.
Mrs. C. also has suffered the loss of direct contact with other family members, most
notably her children and grand children. Before the onset of ALS, Mrs. C. had spoken to her
daughter in Massachusetts and grandchildren on a weekly or more frequent basis. Due to her
anarthria, however, these communications no longer are possible. Communication with other
family members also is precluded.
Mrs. C.'s anarthria also has caused the elimination of both her and Mr. C.'s social lives.
Prior to the onset of ALS, both maintained an active social life. Due to her inability to eat food
by mouth, going to restaurants is no longer possible. Due to her dysarthria and now anarthria,
however, both husband and wife have lost contact with friends and acquaintances.
The cumulative effects of these functional losses and limitations are readily apparent.
Ms. Weinstein noted in her report:
She appears to be an outgoing, warm woman, but cries easily and is
understandably depressed by her total inability to communicate.10
Hrg. Exhibit 2.
Mr. C. also noted the effects his wife’s impairments had on him. In general, life has
become far less fulfilling as he has lost the conversational companionship of his wife of more
than 50 years. He too experiences the losses of contact with family and friends. In general, he
describes the quality of both their lives as significantly poorer as a result of Mrs. C.’s anarthria.
Finally, the current level of Mrs. C.'s mobility, stamina, and other functional abilities,
with the exception of her speech and swallowing, must be seen as fleeting: although the timing
cannot be precisely predicted, ALS will cause the deterioration and ultimate loss of these
functional abilities. Thus, Mrs. C.'s ongoing in-ability to gain access to, and to derive benefit
from the Lightwriter is robbing her of personal, family, social and other opportunities for which
there can be no recovery "later."
C. AAC Evaluation, Medicare Claim and Appeals
Mrs. C. was evaluated by Ms. Jeri Weinstein, M.S., C.C.C.-S.L.P., Chief of
Speech-Language Pathology, Beth Israel Medical Center, on July 16, 1997. Ms. Weinstein is a
speech-language pathologist experienced with evaluation of the speech-language pathology
treatment needs of persons with ALS and is experienced with assessment of the need for
Ms. Weinstein determined that Mrs. C. had anarthria. Thereafter, she outlined a
treatment plan. Its goals will be that Mrs. C. will regain her speech ability sufficient to carry out
communicative interactions in the community, and regain conversational language abilities
sufficient to allow her to communicate with her family, social acquaintances and health care
providers. To realize these goals, Ms. Weinstein further determined that the only appropriate
and available speech-language pathology treatment method or technique is augmentative
The focus then shifted to identify the most appropriate and least costly augmentative
communication device appropriate for Mrs. C.'s use. After considering and ruling out other
Ms. Weinstein's vita is attached as Appellant’s Exhibit 1.
devices that were too sophisticated (a laptop computer), and too heavy (a device called the Link),
Ms. Weinstein concluded the Lightwriter is the least costly, most appropriate augmentative
communication device for Mrs. C.. Mrs. C. was given the opportunity to try the Lightwriter and
demonstrated that she was able to use it and was interested in doing so.
Ms. Weinstein recommended the Lightwriter, to which Mrs. C.’s treatment physician also
agreed.12 On July 17, 1997, a request was submitted to Mrs. C.'s Medicare HMO, HIP Health
Plan of Florida.13 Six days later, on July 23, 1997, the claim was denied. A form notice was
sent to Mrs. C.; the sole reason stated for the denial was that the requested device was "not a
covered HIP benefit." No further explanation was given as to why the Lightwriter was not
On August 7, 1997, Ms. Weinstein, on Mrs. C.'s behalf, filed a request for
reconsideration.15 This letter noted that augmentative communication devices are commonly
classified as durable medical equipment by commercial health insurance providers and that the
Lightwriter should be considered within this covered Medicare benefit category. Ms. Weinstein
also described the Lightwriter as a prosthetic device. The reconsideration letter also stated the
importance of the device to Mrs. C.:
Mrs. C. is virtually unable to verbally communicate medical information to her
physicians without this prosthesis. As I stated in the original justification, this
places her at great physical risk. Consequently, the device should also be viewed
as a medically necessary item. ALS is a terrible disease. The inability to
Hrg. Exhibit 2.
Hrg. Exhibit 2. It is important to note that Mrs. C. submitted a claim to her HMO for
approval of the Lightwriter in advance of receiving it. Unlike the fee-for-service Medicare
program in which claims are filed after the treatment is rendered or device acquired, Medicare
HMO's utilize a prior approval procedure. Thus, Mrs. C. has not yet been able to acquire or
derive the benefits from the Lightwriter.
Hrg. Exhibit 3.
Hrg. Exhibit 4.
communicate, with intact mental and cognitive functions, is perhaps the most
devastating aspect of the disease.16
On September 18, 1997, the reconsideration request was denied. Once again, the sole
reason given for the adverse decision was that "this equipment is not a covered HIP benefit."17
A further appeal was pursued with the Center for Health Dispute Resolution.18 On
November 10, 1997, the most recent adverse decision was issued. For the third time, the sole
reason stated for the denial was that an augmentative communication device is not a covered
benefit. For the first time, however, reference was made to Medicare guidance that purportedly
supports this decision. The letter refers to Medicare Coverage Issues Manual, § 60-9.19 The
There is no doubt that a communication device would be beneficial. However,
the Health Plan cannot be held responsible for coverage of an item that is
expressly excluded from Medicare coverage.20
On January 27, 1998, Ms. Weinstein filed a request for an administrative law judge
hearing.21 The request seeks coverage of the Lightwriter as either an article of durable medical
equipment or a prosthetic device. It also states:
For Mrs. C., this equipment is the only method that will allow for functional
communication. Without it, she can not even express her medical needs.
Unfortunately, she has already been struggling in this situation for many months.22
Hrg. Exhibit 4.
Hrg. Exhibit 6.
Hrg. Exhibit 7.
Hrg. Exhibit 8.
Hrg. Exhibit 9.
Most recently, on July 8, 1998, Ms. Weinstein arranged for the transfer of the hearing
from Florida because Mrs. C. and her husband had returned to their apartment in New York City.
On August 5, 1998, a notice of hearing was issued. It notes that the issue is "whether or
not an augmentative communication device used by the claimant is covered by Medicare."24 As
noted above, at footnote 13, and in a letter from Mrs. C.'s attorney dated August 17, 1998, the
statement of the issue is incorrect in a most important respect: Mrs. C. does not yet have access
to or an ability to benefit from any augmentative communication device.25 Rather, as noted
elsewhere on the Notice of Hearing, this hearing arises in a "pre-service" context. Most
importantly, for more than a year, Mrs. C. has been denied, and as a consequence, has been
unable to use the device identified as the only form of treatment that will be of any benefit to her
The Ability to Communicate is Vital: Speech-Language
Pathology Treatment Makes Communication Possible for
Persons with Severe Expressive Communication Disorders
As Ms. Weinstein noted, the loss of the ability to speak -- to date -- is perhaps the most
devastating aspect of Mrs. C.'s ALS. This conclusion is not unique. In Fred C. v. Texas
Health & Human Serv. Comm’n, the district court made an identical observation about the
impact of loss of speech function when it reviewed the case of an adult who lost his ability to
speak following an accident, and ordered Texas Medicaid to provide funding for an
Appellant's Exhibit 1.
Appellant's Exhibit 2.
Appellant's Exhibit 3.
augmentative communication device. In addition, in both Fred C. and Hunter v. Chiles,27
the district courts added that the ability to communicate is "vital,"28 and to speak and to use
language for communication is recognized as the physical functional ability that most clearly
distinguishes human beings from all other species.29
If the fundamental importance of the ability to communicate effectively is not
self-evident, the life-threatening circumstances30 and outrageous injury31Affidavit of Judith
988 F.Supp. 1032, 1034 (W.D.Tex. 1997)(appeal pending)(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).
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); S.Pinker, The Language Instinct (1994); J. Wilford,
"Ancestral Humans Could Speak, Anthropologists' Finding Suggests," N.Y. Times, April 28,
1998, at A:1.
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,
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:
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-sentient32Ms. 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,33 clearly demonstrate its value.
The loss of speech has caused comparable harm to Mrs. C.. As described herein, it has
denied her "access to life:" the ability to interact with her husband and family, to take care of her
personal needs and health care, to maintain her home and to maintain social contacts. For Mrs.
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.
In re: Anonymous, Case No. 851-0-107314 Slip Op. at 10 (Ohio Dept. of Human Services, Dec. 7,
C., the loss of speech is profoundly isolating, precluding the very communication -- about home,
family, health and social matters -- that research recognizes is typical of older women.34
However, the effects of Mrs. C.'s loss of speech are as disabling as they are unnecessary.
Despite its progressive nature and poor prognosis, some of the symptoms associated with ALS
can be treated, particularly the functional losses in regard to speech:35 speech-language
pathology treatment is readily available to treat Mrs. C.'s anarthria.
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.36
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.37 It is the key to
communicative competence (effectiveness), and improvement in intelligibility is the primary
objective of most speech-language management.38
Stuart, Vanderhoof & Beukelman, "Topic and Vocabulary Use Patterns of Elderly
Women," 9 AAC 95 (1993).
R. Sufit, M.D., “Symptomatic Treatment of ALS,” in ALS Care Consensus Conference at
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).
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
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.39
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."40
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
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.42
The discussion of functional goals concludes with the following explanation:
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).
Medicare Hospital Manual, § 446(A)(3)(a), attached as Appellant's Exhibit 2.
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.43
Ms. Weinstein developed a set of functional treatment goals for Mrs. C. that will permit
her to regain the broadest of these functional communication opportunities. Her proposed
speech-language pathology methodology is augmentative communication, specifically, use of the
Lightwriter augmentative communication device. Moreover, in contrast to the “small change”
in communication permitted in these guidelines, use of the Lightwriter will provide Mrs. C. with
an enormous potential 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.44 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.45
In Myers v. State of Mississippi, the district court correctly defined augmentative communication
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
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 service and that it is within the
scope of practice of speech-language pathologists.47 Augmentative communication also is
generally recognized as an appropriate means of treating the speech losses associated with
ALS.48 Indeed, the ALS Care Consensus Conference expressly cites the Lightwriter, the device
recommended for Mrs. C., as an example of an augmentative communication device that is
commonly used by persons with ALS.49
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
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).
R. Sufit, M.D., "Symptomatic Treatment of ALS," in ALS Care Consensus Conference at
communication devices.50 Currently, the best practice for persons with severe dysarthria or
anarthria is augmentative communication treatment.
For persons such as Mrs. C., the use of augmentative communication is the least costly
and the only effective course of treatment for her anarthria.51 For Mrs. C. specifically, the
Lightwriter is a compact, lightweight, easy to learn and easy to use device that will enable her to
meet the broad, speech-restorative treatment goals set by Ms. Weinstein. The Lightwriter will
enable Mrs. C. to “say” words, phrases, sentences, even entire messages -- whatever she wishes
-- in the most intelligible synthesized voice currently available.52 The Lightwriter has software
that will enable Mrs. C. to communicate effectively and efficiently despite her less than perfect
spelling skills. 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 Mrs. C.’s
message, in addition to the synthesized voice, which also will increase the intelligibility of her
messages. In sum, the Lightwriter is the least costly device that will accomplish a primary goal
of speech-language pathology treatment for persons with ALS:
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 (2d 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).
National Joint Committee on the Communicative Needs of Persons with Severe
Disabilities, "Guidelines for Meeting the Communication Needs of Persons with Severe
Disabilities," 34 Asha (Suppl. 7) 1-9 (1992).
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....”)
A person with Amyotrophic Lateral Sclerosis (ALS), for example, who becomes
incapable of speaking and writing, can be provided with augmentative techniques that
allow full access to expression of ideas, wants, and needs.53
In addition, Mrs. C.’s use of the Lightwriter will accomplish one of the primary aims of
augmentative communication intervention in general:
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
comment on current, past and future events, to specify preferences and emotions, or to
simply “chat” that facilitates social and emotional involvement. . . .54
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."55 Among the "items and services" provided by Medicare Part B are
durable medical equipment56 and prosthetic devices.57 Augmentative communication devices,
such as the Lightwriter requested by Mrs. C. in this case, satisfy all the criteria stated in the
Medicare definitions of both the durable medical equipment and prosthetic device benefit
H. Shane, Ph.D., “Goals and Uses,” in S. Blackstone, Ph.D., Ed., Augmentative
Communication: An Introduction 29, 40 (1986).
Id. at p. 37.
42 U.S.C. § 1395(y)(a)(1)(A).
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
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.59
Augmentative communication devices satisfy all of these criteria. Without question they are
able to withstand repeated use. The Lightwriter with the scanning accessory requested for Mrs.
C. is expected to be of use to her for the rest of her life.
Augmentative communication devices also are used solely to serve a medical purpose.
As discussed in this memorandum, augmentative communication devices are a speech-language
pathology treatment method for severe expressive communication disabilities, such as dysarthria
and anarthria. 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
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)(appeal pending), 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
42 C.F.R. § 402.202.
medical purpose as speech language pathology. In addition, the distributor of the Lightwriter
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 ALS.60
This statement also addresses 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 means.
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.
In In re: Blanche B., ALJ Kenneth Levin considered whether another model of
augmentative communication device, known as a Real Vois, was durable medical equipment.
The Medicare beneficiary in that case also had ALS. Judge Levin'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.61
That augmentative communication devices meet these four criteria is further supported
by comparison to Medicaid coverage of augmentative communication devices under its durable
Affidavit of Kim Wright, Medical Accounts Manager, Zygo Industries, Appellant's
Exhibit 3, at ¶ 3.
In re: Blanche B., No. 000-24-0399 Slip Op. at 6 (Social Security Admin. Office of
Hearings & Appeals May 8, 1995), attached as Appellant's Exhibit 4.
medical equipment benefit.62 Medicaid, governed by Title XIX of the Social Security Act,63
covers durable medical equipment,64 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.65 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.66 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 65, 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)(pending)(Alabama also
classifies augmentative communication devices as durable medical equipment). This article is
attached as Appellant's Exhibit 5.
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
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, §
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.67
The appropriateness of augmentative communication device coverage also can be
established by review of other items of durable medical equipment covered by Medicare. For
example, in In re: Irving M.68 a Medicare Administrative Law Judge concluded that a device to
aid a person with low vision, called a Telesensory high contrast black and white magnification
system, was an item of durable medical equipment. The beneficiary was losing his vision
function due to diabetes, macular degeneration and cataracts. He asserted this device was
necessary because his failing vision made it impossible for him to meet the vision demands of his
general medical regimen, which included testing and recording his blood glucose level four time
per day, measuring doses of other medications, and performing other writing related tasks, such
as check-writing, which are part of his routine daily tasks. In In re: Anonymous,69 a Medicare
Administrative Law Judge approved a similar device, called a Visualtek Read/Write System.
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).
In re: Irving M., No. 000-44-0379 (Social Security Admin. Office of Hearings & Appeals
June 16, 1995), attached as Appellant's Exhibit 6.
In re: Anonymous, No. 062-44-0658 (Social Security Admin. Office of Hearings &
Appeals Feb. 5, 1980), reprinted in CCH Medicare and Medicaid Guide, ¶ 30,387. Attached as
Appellant's Exhibit 7.
The Lightwriter will serve the same general purposes as these low vision devices: both
address deteriorating functional abilities caused by disease or disability. Both enable their users
to participate effectively and efficiently in their health care -- one to communicate health
concerns, the other to implement a treatment program; both also enable their users to continue to
perform their routine daily activities -- one in regard to speech; the other in regard to reading.
And, as noted previously, Medicare speech-language pathology billing guidelines expressly state
that functional goals should be written to enable patients to achieve "optimum communication
independence," including "carry[ing] out communicative interactions in the community."70 In
this regard, i.e., the provision of an assistive device that enables its user to maintain important
functional abilities that are deteriorating due to disease or disability, the purpose of providing
augmentative communication devices is the same as that of a wheelchair or other mobility device
which is statutorily recognized as an item of Medicare durable medical equipment.71
Medicare Hospital Manual, § 446(A)(3), attached as Appellant's Exhibit 2.
42 U.S.C. § 1395(x)(n).
B. Augmentative Communication Devices Are 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 . . ."72 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."73 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
(for a person with dysarthria), or for Mrs. C. (due to her anarthria), 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,
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.
vocal folds or cords, tongue, teeth, and lips74 yield intelligible speech. For Mrs. C., by contrast,
the functioning and coordination of these body organs and other body structures has been lost
due to ALS; the result is that no speech is possible.
In this regard, there is no difference between Mrs. C.'s loss of function of these same
body structures and her need for a functional substitute (to ensure her access to nutrition) of the
P.E.G. Medicare expressly covers similar services (parenteral and enteral therapy) as prosthetic
devices.75 Moreover, that multiple interconnected and inter-related parts of the body are
involved in the production of speech is not material. Nor is it material that not every body
structure contributing to speech production be identified as impaired. There is nothing in the
Medicare definition of prosthetic devices -- and common sense belies the notion -- that for a
device to be a prosthetic device, it must be a substitute for the specific function of a single,
muscle, organ, nerve or other specific body structure. When multiple body parts must work
together to produce a vital function, such as speech, but cannot do so due to disease or disability,
a device that will provide a substitution for the ultimate body function -- speech -- squarely
satisfies the Medicare criteria for classification as a prosthetic device. Medicare guidance is in
complete accord: noted above is Medicare's coverage of parenteral and enteral nutrition therapy
as a prosthesis: such therapy is utilized when patients, due to chronic illness or trauma cannot be
sustained through oral feeding. This type of therapy replaces a host of organs utilized in
nutrition and the digestive process. See 5 CCH Medicare & Medicaid Guide, ¶ 27,201, at p.
9081 (National Coverage Decision 65-10). In addition, in many instances, only one organ
related to digestion may be dysfunctional.
See G. Shames and E. Wiig, Human Communication Disorders 77 (3d Ed. 1990)(Figure
3.1: Human vocal organs). Attached as Appellant's Exhibit 8.
See 1 CCH Medicare & Medicaid Guide, ¶ 3152.55, at p. 1162 (Feb. 1994); see also Fred
C-II, 988 F.Supp. at 1037; Fred C-I, 924 F.Supp. at 792(equating functional substitution role of
augmentative communication device and feeding tubes).
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.76 The
other is commonly known as a tracheostomy speaking valve.77 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.78In re: Blanche B., supra, slip op. at 5.
More directly on point regarding coverage of augmentative communication devices is In
re: Emyln J.,79 In re: Emyln J. also is notable because, like the Blanche B. decision discussed in
footnote 78, the ALJ in this case also concluded that the requested augmentative communication
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). Attached as Appellant's Exhibit 9.
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 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 will have for Mrs. C.:
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. . . ."80
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
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
Id., slip op. at 3.
prosthetic device as it replaces part of the function of an impaired body organ, Mr.
J's brain. 81
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 "access to life." The ALJ expressly noted that for this
[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.82
In addition, at least four other Medicare decisions -- one additional A.L.J. decision, one
issued by a Medicare HMO and two issued by DMERCs, have all approved augmentative
communication devices similar to the Lightwriter as prosthetic devices.83
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.84
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
Id. at 4-5.
Id. at 5.
See In re: Richard A., Dkt No. 000-06-0110 (Social Security Admin. Office of
Hearings & Appeals March 24, 1997), attached as Appellant’s Exhibit 10; 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).
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.85
Medicaid programs throughout the country recognize that under the federal Medicaid
regulations, "prosthetic devices can be defined in functional terms,"86 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,87 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 . . . .88
See "Speaking Up In Court, supra, note 65, Appellant's Exhibit 5. 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.
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
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.90
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 66, supra.
The Administrative Law Judge in In re: Richard A., attached as Appellant’s Exhibit
10, reached this conclusion: that augmentative communication devices similar to the Lightwriter
met the Medicare criteria applicable to both durable medical equipment and prosthetic devices.
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."91 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.92
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?
(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 the Lightwriter sought by Mrs. C., are
entitled to Medicare coverage and funding because they squarely meet these standards.
Augmentative communication devices are necessary, first, because they are treatment for
severe expressive communication disabilities, such as dysarthria and anarthria. 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
42 U.S.C. § 1395y(a)(1).
Medicare Carriers Manual, § 2100.2, reprinted in 1 CCH Medicare & Medicaid Guide, ¶
3144, at p. 1120 (1994).
Id. ¶ 3144, at 1121.
enable persons with such disabilities to regain functional speech abilities. As to Mrs. C., there is
no question that providing her with a Lightwriter will make a "meaningful contribution" to
treatment of her anarthria.
The degree of this contribution also makes clear that providing augmentative
communication devices is reasonable. For Mrs. C., the expense of the Lightwriter will be
insignificant when compared to the therapeutic benefits it will provide, i.e., by the degree of
functional communication improvement that will be realized. Ms. Weinstein expects the degree
of improvement to be full conversational communication, the highest level of functional
communication recognized by Medicare criteria and the closest to normal functioning. With --
and only with -- the Lightwriter, Mrs. C.'s functional communication will improve from the
speechlessness that distinguishes anarthria, to the potential for full conversational
communication. This will represent the greatest possible degree of improvement in her
functional communication abilities.
Moreover, as noted above, the emotional benefits to Mrs. C. and her husband by again
being able to speak -- to each other, to other family members, to friends and to others -- are
incalculable. It truly will return to her the "access to life" that she has lost due to her ALS.
The Medicare decisions previously mentioned herein provide further support. Each
prior decision approved funding for augmentative communication devices and other similar
devices, such as low vision aids, 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 Mrs. C..
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.94 This list includes other federal health-benefits programs,
such as Medicaid programs,95 CHAMPUS96 and the Department of Veterans Affairs,97 as well as
private health-benefits programs, including hundreds of commercial health insurance providers
and managed care organizations.98 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,99 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."100 Likewise, in Meyers v. Reagen,101 Fred C.,102
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,
attached as Appellant's Exhibit 11; Affidavit of Yvette Walden, Supervisor of the Funding
Department, Dynavox Systems, Inc., ¶ 4, attached as Appellant's Exhibit 12; see also fn 65,
See Appellant's Exhibits 11 and 12; 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.
and Hunter,103 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 the Lightwriter sought by Mrs. C. to support the
same conclusion: that it, too, satisfies the Medicare “reasonable and necessary standard.
There are No Coverage Limitations Or Program
Exclusions that Preclude Medicare Coverage
and Funding for Augmentative Communication Devices
As noted by Judge Levin in In re: Blanche B.:104
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
Upon review, Judge Levin concluded there is no binding authority that precludes a finding in
favor of Medicare coverage and funding for augmentative communication devices. This
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)(appeal pending).
944 F.Supp. 914 (S.D.Fl. 1996).
In re: Blanche B., No 000-24-0399 (Social Security Admin. Office of Hearings &
Appeals May 8, 1995), attached as Appellant's Exhibit 4.
Id., Slip Op. at 4-5.
conclusion also was reached by each of the other Medicare Administrative Law Judges who have
reviewed and approved augmentative communication device funding requests.106
First, as explained in Section II of this memorandum, there is a match between the
statutory and regulatory factors required to affirmatively establish coverage: i.e., the
characteristics, uses and purposes served by augmentative communication devices and the
relevant statutory and regulatory definitions and coverage criteria applicable to two covered
benefits categories: durable medical equipment and prosthetic devices. Also, as explained in
Section III, there is a match between the role of augmentative communication as the only, and
also as a significantly effective form of treatment for severe communication disabilities such as
dysarthria and anarthria, and the statutory standards of medical necessity and reasonableness.
Next, as those prior Medicare augmentative communication device decisions further
attest, none of the statutory exclusions from coverage and funding are properly applied to
augmentative communication devices.107
Lastly, there are no binding regulatory provisions which preclude coverage and funding
of augmentative communication devices and there are no binding National Coverage
Determinations that require that result. In regard to the latter guidance, Judge Levin noted that
there is one National Coverage Determination related to augmentative communication devices,
within the durable medical equipment benefit.108 It states that funding requests should be denied
because augmentative communication devices are convenience items and are not medical in
nature.109 The record of this case reveals this National Coverage Determination served as the
sole basis for the prior adverse decisions on Mrs. C.'s claim.110
See Appellant's Exhibits 9 and 10.
42 U.S.C. § 1395y(a).
In re: Blanche B. Slip Op. at 6-8, referring to National Coverage Determination 60-9.
National Coverage Determination 60-9, reprinted in 5 CCH Medicare & Medicaid Guide,
¶ 27,221 at p. 29,802 (Oct. 1992).
See Hearing Exhibit 8.
However, this National Coverage Determination is not binding on Administrative Law
Judges. It is not binding because it is based on § 1861(n) of the Act, which is the definition of
durable medical equipment.111 Binding National Coverage Determinations, by contrast, are
those based on 42 U.S.C. § 1395y(a)(1).112
The augmentative communication device National Coverage Determination is not only
not binding, it deserves no deference. 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.113 Moreover,
this National Coverage Determination does not appear to have been reviewed or updated.
That failure stands in stark contrast to the almost 20 years of speech-language pathology
professional literature, policy, and practice that contradicts its 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 coverage and funding
of AAC devices. These programs apply principles and vocabulary that is identical or
substantially similar to Medicare, and all conclude augmentative communication devices are
durable medical equipment, prosthetic devices, and both reasonable and necessary. In
addition, augmentative communication devices such as the Lightwriter have no characteristics in
42 U.S.C. § 1395x(n).
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 Appellant's
Exhibit 13. The preamble to the regulations confirms the correctness of Judge Levin's analysis
and conclusion that the augmentative communication device National Coverage Determination is
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 Appellant's Exhibit 14.
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."114 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.115
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.
Lastly on this point, in Detsel v. Sullivan,116 the Second Circuit struck down HCFA
guidance that was not materially different than the National Coverage Determination for
augmentative communication devices. In that case, HCFA had issued guidance in the mid-1960's
purporting to impose at-home limits on the location where Medicaid private duty nurses could
perform their services. No effort ever was made to update this guidance, even though by the
mid-1980's, the medical technology available as well as the standards of practice of nursing had
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. Persons like Mrs. C., who use augmentative
communication devices, had speech for 75 years and then lost it due to ALS. 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 anarthria, it would be a futile effort.
895 F.2d 58 (2d Cir. 1990)
changed considerably. These changes allowed nursing to become "setting independent" which
contrasted starkly with the HCFA "at home limit." When a challenge was brought to the
limitation, HCFA could locate none of the original documents related to development of this
guidance, and upon review, the Second Circuit struck it down because it did not reflect current
nursing care standards, policy or practice.117
For Mrs. C., it is neither necessary nor appropriate for an Administrative Law Judge to
"strike down" the National Coverage Determination -- rather, it will be sufficient for it to be
disregarded, as Judge Levin had done in In re: Blanche B., and as is supported by the
information presented here on behalf of Mrs. C..
In the final analysis, there is no material difference between the Emyln J., Blanche B. and
Richard A. decisions, and the issues presented here. The devices and the benefits they are to
provide are not distinguishable, and all the applicable coverage and funding criteria are the same.
Thus, no basis exists for this appeal to reach any result other than the approval of the Lightwriter
Mrs. C. seeks.
As a general matter, augmentative communication devices have the ability -- like other
items of durable medical equipment and prosthetic devices that Medicare covers and provides --
such as wheelchairs,118 low vision aids,119 artificial limbs,120 pacemakers,121 and cochlear
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.
implants122-- to overcome significant physical limitations and to restore functional abilities
sufficient to allow their users to participate fully in society. They can accomplish this 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.
In light of Mrs. C.'s anarthria, that the Lightwriter will permit "normal activities" is
hardly proof that the device is merely a convenience -- as is clear from the approval of
augmentative communication devices in the three cases cited above. Indeed, the functional
abilities the Lightwriter will provide to Mrs. C. would be far more accurately described as an
extraordinary event: one that might seem more like magic than medicine. ALS and in
particular, anarthria, has reduced Mrs. C. to an empty shell of a person. She is unable to
effectively express her needs, thoughts, feelings, or wishes; unable to participate in a meaningful
way in conversation; unable to fully enjoy and share the companionship of her husband of 55
years, her family and friends, and unable to be independent and able to care for herself and her
The Lightwriter -- and nothing else -- can change that. It will, in the words of the
claimant in as the claimant in In re: Emyln J. “open up [her] life again”123 and thereby enable her
to reclaim her person-hood, no less significant an occurrence than if she were to awaken from a
coma. Moreover, that the Lightwriter will restore Mrs. C.’s "access to life," is completely
consistent with every relevant Medicare coverage and funding criterion.
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 Appellant's Exhibits 6 and 7.
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).
Appellant’s Exhibit 9, Slip op. at 3.
Therefore, based on the foregoing, Mrs. C.'s appeal should be upheld, and her Medicare
HMO be directed to provide her with the Lightwriter she seeks.
Dated: Ithaca, New York
August 26, 1998
Attorney for Celia C.
Suite 507, 202 East State Street
Ithaca, New York 14850