Ken Nelson has been in the business of selling wheelchairs since 1963. “I was there when Medicare started,” he says. “And this new CMS clarification is one of the worst things that has ever happened.” On Dec. 9, 2003, CMS–the Centers for Medicare and Medicaid Services–issued a policy clarification that limits coverage on power mobility devices to people who are strictly nonambulatory: “Power wheelchairs … are covered only for patients who are nonambulatory. If a patient can only bear weight to transfer from a bed to a chair or wheelchair, the patient is considered nonambulatory,” reads the clarification.

Nelson, president of Wheelchair Works in Milwaukie, Ore., says Medicare beneficiaries who are unstable and at risk of falling are being denied power wheelchairs. “We’re sitting on 30 to 40 orders for power chairs because we don’t know what to do.” According to Nelson, Medicare will not reimburse his company if the power wheelchairs are delivered. “If they can walk at all,” he claims, “I have to say, ‘I’m sorry, I can’t sell you a chair.’ It gets my blood pressure boiling.”

Sources in the durable medical equipment industry say the strict clarification is the result of an overaggressive CMS crackdown on fraudulent sales and billing scams that caused an astronomical increase in Medicare payouts for power wheelchairs and scooters–mostly intended for use by elderly people–over the past two years. “We’re being looked at with a jaundiced eye,” says Nelson, a past board member of the National Registry of Rehabilitation and Technology Suppliers, “but we didn’t do the fraud, and ultimately it hurts the end user.”

Wheelchair Works is about a 10-minute drive from Portland’s Care Medical, one of eight stores Care owns in Oregon and Washington. Becky Ruecker oversees the claims process as compliance officer. Unlike others in the industry, Ruecker doesn’t see financial calamity on the horizon, at least not for Care Medical. “We have always held strictly to Medicare guidelines, and the ‘clarification’ is what we have been doing for years.” Another reason Ruecker feels mostly unaffected is that Care sells very few scooters to elderly homebound people. Most of their power wheelchair business comes from rehab centers.

Still, Ruecker, who says she has seen Medicare’s “knee-jerk reactions” before, recognizes that the durable medical equipment industry is being hit hard. She thinks further clarification of existing guidelines is necessary. “I’d like to see them explore the language of ‘functionally ambulatory,'” she says, an issue she has tried to raise in correspondence with CIGNA, one of four national carriers (called DMERCs) who administrate Medicare claims processing. CIGNA is responsible for DMERC’s Region D [see sidebar, page 29].

“What about the patient who can take a few steps but cannot function in the home without a wheelchair?” she inquired in a letter written to CIGNA about a year and a half ago. And what about those who may be able to walk a few feet but are at “high risk for falls” or a “patient [who] can walk five feet on parallel bars” but is very unstable, she asked in a subsequent letter. “Although these patients can technically take steps,” she concluded, “they cannot functionally ambulate by any measure.” She says her efforts to discuss the issue of functional ambulation were quashed by Region D’s medical director, Dr. Robert D. Hoover Jr.

The Real Losers
No doubt the DME industry is feeling the squeeze, but the real losers are the consumers. Certain elderly people–“wall walkers”–can be fairly characterized as accidents waiting to happen. When they are denied power wheelchairs, not only are their lives put at risk, but Medicare itself may be threatened as well: DME industry sources say dollars saved from denying wheelchairs under Part B of Medicare are easily used up in paying for costly surgeries and treatments funded under Medicare’s Part A.

The elderly may not be the only group affected by the clarification. People whose active lifestyles depend upon being able to use power wheelchairs also fall under the Medicare program because of low income, inability to work or discriminatory hiring practices. Others are covered by Medicaid, which is influenced by Medicare policy. Many are partially ambulatory or are advised by their doctors to conserve their energy, such as those with multiple sclerosis–who have good and bad days–and polio survivors who experience fatigue and other complications due to post-polio sequelae. Denying power wheelchairs to these groups invites future medical complications. And people with incomplete spinal cord injuries who may be able to walk a few steps but have used manual chairs for decades are at risk of developing repetitive strain injuries in their upper limbs–meaning probable surgery–if denied power wheelchairs.

The list of those potentially affected draws from many more disability groups–people with cerebral palsy, amputation, muscular dystrophy and amyotrophic lateral sclerosis, to name a few. The threat of power wheelchair replacements being denied–even retroactively, due to stricter CMS enforcement–is also a possibility.

Many in the DME industry think the clarification, issued without public or industry input, is tantamount to a policy change, which usually only happens as part of a public process. Some claim that the CMS clarification amounts to denial of due process.

Charges of discrimination have been strongly implied. A recent letter sent by faculty members of the University of Pittsburgh’s respected Department of Rehabilitation Science and Technology to Dr. Paul J. Hughes, medical director of DMERC’s Region A, states: “Restricting coverage for a powered mobility device until a beneficiary is nonambulatory is inappropriate. There are no other medical or rehabilitation benefits under the Medicare program that have such coverage restrictions.”

The ITEM coalition–Independence Through Enhancement of Medicare and Medicaid–made up of various organizations representing aging and disability populations, sent a letter to Secretary Tommy Thompson of the Department of Health and Human Services on Jan. 23 asking him “to rescind the wheelchair policy clarification and, in the alternative, issue a proposed policy that seeks public comment.” Over 70 organizations make up ITEM, including the American Association of People with Disabilities, Christopher Reeve Paralysis Foundation, National Organization on Disability, National Spinal Cord Injury Association, National Center for Independent Living and Paralyzed Veterans of America.

ITEM’s letter claims the CMS clarification represents a return to an “antiquated regulatory standard” of many years ago that requires that wheelchair users be “bed or chair confined.” It is a Medicare policy that in recent years has been bypassed in favor of a more modern, practical application stating that a patient “require[s] and use[s] a wheelchair to move around in their residence.” The intent of the CMS clarification–to curb fraud in the Medicare claims process–has instead, according to AAPD’s Andy Imparato, “thrown the baby out with the bathwater.”

Sharon Webb, vice president of sales for Reading Medical West–one of Webb Medical System’s handful of retail locations in Pennsylvania–and her husband have owned their business for the past 25 years. She says the impact on their sales has not been as great as on others, but she has noticed a “Medicare backlash”–private insurance carriers requiring more documentation and a lengthier claims process–over the last six months. “We’re working twice as hard,” she says, “which means extra labor that drives up the cost. It’s really not fair.” She says her company is facing tougher times in trying to get private insurance carriers to cover equipment for people with neurological impairments. It’s well known that insurance companies are not shy about finding ways to deny claims or downsize payments, and Webb feels they are using the fraud issue “as a justification for denying claims.”

But she says those who are most obviously affected are seniors in assistive living centers who can walk a few steps using a walker in their small apartments but need a power wheelchair do go anywhere else, for instance a common dining or recreation area. It used to be that Medicare considered the entire facility as their home; now Medicare only considers their small individual living area as their home. By enforcing the new language of clarification, Medicare is denying power wheelchair claims for those who can walk even a few steps in their “homes.”

Webb worries about others as well. “I have CP customers who can walk a few steps. What will happen to them?” She attributes much of the problem to certain companies who have “created an impulse item” that contributed to fraudulent sales of scooters and power wheelchairs. But she agrees that the CMS clarification has gone too far.

In a recent letter to Sen. Arlen Specter, R-Pa., Webb writes: “We are concerned that the area of total bed or chair confinement may eliminate those who have neurological or neuromuscular disorders who have bad days, but on some better days they are able to take a few steps.”

Chuck Walters has owned Quality Care, in Lodi, N.J., for 20 years. In 2003 he supplied as many as 30 to 40 power wheelchairs to polio survivors being counseled by Richard Bruno, Ph.D, NM contributing editor, author and recognized expert in the diagnosis and treatment of PPS. “Almost every one of Dr. Bruno’s patients was ambulatory,” says Walters. Bruno’s motto of “conserve to preserve” makes sense if you are a polio survivor and you want to continue living a productive life. Now Walters worries that Bruno’s ambulatory patients may be denied power wheelchairs based on the new clarification. “It’s too early to know just yet,” he says. He’s warily waiting for pending Medicare decisions on claims.

Walters also has concerns about people with amyotrophic lateral sclerosis. The process of evaluating need, receiving, delivering, and getting payment for a power wheelchair now takes so long that some with ALS may not have time to enjoy the freedom their wheelchairs make possible before they lose the ability to operate them. In the past, when ambulation was not a black-and-white issue that determined approval or denial, patients would receive power wheelchairs in time for them to be beneficial. Now Walters envisions starting the claims process much earlier, when the patient is still ambulatory, possibly even eliminating providing a manual chair first. But will the new clarification, which states that the patient must be nonambulatory, result in a denial?

What Now?
Changes in Medicare practices eventually filter down to Medicaid and private insurance companies. Walters says Medicaid is starting to become “just as bad” as Medicare. It used to be that when Medicare denied payment, Medicaid would often pick up the tab. “That’s a thing of the past,” says Walters, “at least in New Jersey.” In an effort to save money, something every budget-beleaguered state in the union is trying to do, New Jersey has embarked on a recycling program.

It works like this: Walters goes out and evaluates the consumer, calling out exactly what is needed in a power chair. Medicaid then takes the specs and measurements and passes them on to the one company in the state that collects and refurbishes used wheelchairs. Then, according to Walters, “they pull one out of the closet” and ship it to him. He installs a seating system, delivers the chair, makes sure it fits and the recipient knows how to operate it. For his services, he receives no reimbursement; only the seating system itself is paid for. The wheelchair recycling company, on the other hand, gets paid in full for supplying the refurbished chair. “They’re using us as a free service. It’s insane, and very unfair,” says Walters. “It could put us all out of business.”

Shelley Green’s company, American Wheelchairs, is also struggling financially. Her only protection, she says, is having to tell consumers they must pay before the equipment is delivered. “They [Medicare] just don’t want to pay for power wheelchairs anymore,” she says. “And it’s because of the jerks who took advantage before and did the fraud.” It is Green’s misfortune to be doing business in Florida, within DMERC Region C, which encompasses many of the southern states, including Texas, where the most notorious fraud cases have been prosecuted.

Each region, even though governed by the same Medicare policies, tends to interpret and enforce policies in their unique way. Region C has a reputation for having been lax–by CMS standards–in the past. In Texas, sales of motorized wheelchairs in Harris County alone soared from 3,100 in 2001 to 31,000 in 2002. HME News editor Jim Sullivan points out that most of this occurred as a result of a single fraudulent operation that took place in Houston’s Nigerian community. Another more recent case in the Dallas area seems to have been run in a similar way. Fraud has also been detected in Miami. In these three locations alone, fraudulent claims exceeded $70 million.

Nationally, according to CMS, total Medicare payments for motorized wheelchairs were $289 in 1999, $538 million in 2001, and $845 million in 2002. Payments for 2003, many still under investigation, may top $1 billion. The dramatic rise in sales is not solely due to fraud, according to the DME industry. The ITEM Coalition specifically notes “an expansion in public awareness of the medical necessity and accessibility of power wheelchairs by beneficiaries during this time period” [due in part to aggressive marketing strategies]. Also key is enactment of the Ticket to Work law, which “extends Medicare coverage to SSDI beneficiaries when, in contrast to the in-the-home requirement, they leave their homes and return to work.” Lax enforcement of Medicare policy may also have played a role.

Whatever the cause or causes, power wheelchair sales have dropped off dramatically since the CMS clarification. The biggest loser financially has been the Scooter Store, based in New Braunfels, Texas. In February they had to lay off 230 employees nationwide. Along with other industry mainstays, they have created a coalition to fight the clarification: Restore Access to Mobility Partnership (RAMP) also includes Pride Mobility, the American Association for Homecare, Invacare Corp., The MED Group, Mobility Products Unlimited, and Sunrise/Quickie Medical.

Darren Jernigan, director of governmental affairs for Permobil–another industry giant–thinks the industry’s public relations approach in fighting the clarification is good, but may not be enough. He makes his living as a lobbyist (see sidebar, page 30) and knows how federal government works. “The feds use a hammer to get your attention,” he says. “But CMS went drastic to eliminate fraud. I think we should be looking at more aggressive possibilities,” he says. “Legal action is definitely an option.”

Alphabet Soup

AAPD: American Association of People with Disabilities–“the largest national nonprofit cross-disability member organization in the United States, dedicated to ensuring economic self-sufficiency and political empowerment for the more than 56 million Americans with disabilities.”

CIGNA: The private insurance company that administers DMERC Region D. Clarification: An official explanation of existing Medicare policy that can potentially result in changes in enforcement of that policy. A change in Medicare policy usually takes place as part of a process that includes public hearings and comment, while a clarification need only be posted and made public.

CMS: Centers for Medicare and Medicaid Services–federal agency that administers the Medicare and Medicaid programs under the Department of Health and Human Services.

DME: Durable Medical Equipment–wheelchairs, walkers, hospital beds, etc.–ordered by a doctor and used in the home.

DMERC: Durable Medical Equipment Regional Carrier. A private insurance company (carrier) that contracts with Medicare (through CMS) to process claims for DME, prosthetics, orthotics and supplies. There are four DMERCs in the United States: Region A–10 Northeastern states, including New York; Region B–8 Northern-Central states plus the District of Columbia; Region C–13 Southern states, Colorado, Puerto Rico and the Virgin Islands; Region D–17 Western and Midwestern states and three U.S. territories. HME: Home Medical Equipment. A broad category that includes many products sold by medical supply companies for use in the home.

ITEM: Independence Through Enhancement of Medicare and Medicaid. A coalition of over 70 members–disability organizations, aging organizations, consumer groups, labor organizations, voluntary health associations, and nonprofit provider associations. ITEM raises awareness and advocates for policies to improve access to assistive devices, technologies and other services for people of all ages with disabilities and chronic conditions.

NRRTS: National Registry of Rehabilitation Technology Suppliers. Certified members adhere to ethical and professional standards in providing and servicing wheeled mobility, seating and positioning. RAMP: Restore Access to Mobility Partnership, a coalition of major manufacturers and suppliers of power wheelchairs that advocates for rescinding the CMS clarification.