Federal Courts Asked to Reverse Maine and Indiana Medicaid Failure To Fund Augmentative Communication Devices

By Lewis Golinker, Esq., Guest Writer

This article is reprinted from the A.T. Quarterly, Volume 2, Number 5 (1991).

Since late January 1991, the Maine and Indiana Medicaid programs have been sued over their refusal to provide funding for augmentative and alternative communication devices (AAC). Two lawsuits, Doyle and Pinkam v. Ives, in Maine, and Bruce v. Scales, in Indiana, were filed in federal district courts to force those states to allow the payment for these assistive technology devices and services with Medicaid funds.

The two lawsuits were brought on behalf of three persons with cerebral palsy. All three are adults with limited speech who lack the fine motor control to use sign language. All three reside in community-based residential facilities. All three are recipients of Medicaid. In addition, the Indiana case was filed as a class action on behalf of all other persons in the state who require augmentative communication devices.

The recommended devices were a Touch Talker, Real Voice, and EvalPac. Speech language pathologists made their recommendations following individual evaluations. The devices also were prescribed by their treating physicians. In addition, for Mr. Doyle and Mr. Pinkam, the recommended devices were available for a trial use period, which was a success. During the trial periods, they demonstrated the ability to use the devices. Also, significant improvements were noted in their ability to communicate, in their behavior, and in their ability to secure adequate medical care.

Absence from Maine's "Exclusive List" of Equipment Cited; Indiana Asserts "Non-Coverage" Of Communication Devices

Maine Medicaid rejected Doyle's and Pinkam's claims. The sole reason stated was that augmentative communication does not appear on a so-called "exclusive list" of durable medical equipment for which Maine Medicaid funding is available. None of the favorable reports were contested. No question was raised as to the medical necessity for the devices or the potential improvements in speech, independence and self care that the use of the devices will offer. No question was raised about the appropriateness of the specific devices recommended, or whether any less costly alternatives were available.

Indiana Medicaid also rejected Bruce's claim. It did not refer to an exclusive list of so-called covered medical equipment. Instead, it simply stated that augmentative communication devices are not "covered services" within the state Medicaid program.

Violation of Federal Medicaid Regulations Charged

The federal actions challenge the Maine "exclusive list," and Indiana's claim that communication devices are "non-covered." Both suits state that the failure to approve the requested devices violates at least three federal Medicaid program regulations.

The regulation most clearly at issue is the one defining speech services, an optional service that both Maine and Indiana, and 34 other states provide to Medicaid eligible adults, and a service that is mandatory for eligible persons less than 21. Those regulations state simply that speech services includes "any necessary supplies and equipment." For persons who cannot speak clearly nor use sign language, augmentative communication devices are equipment necessary to enable them to receive speech services.

Also challenged by the lawsuits are the regulations requiring Medicaid services to be provided in "sufficient amount, duration, and scope" to reasonably achieve its purpose, and the regulatory prohibition on Medicaid services being provided or denied based on individualsū "diagnosis, type of illness or condition." The purpose of speech services is to improve recipientsū ability to communicate effectively. Both suits charge that the refusal to fund augmentative communication denies such persons of the sole means by which these individuals can communicate at all. Likewise, the exception for augmentative communication means that persons who have the most severe speech impairments: those that render the individual non-speaking, and which result from conditions such as cerebral palsy, stroke or amytrophic lateral sclerosis, are denied speech services, while others, with less severe speech impairments are able to receive those services.

In addition, the Indiana case raises another issue: inconsistent decision making. Indiana has approved communication devices in the past. Indiana's rejection of Bruce's claim has been challenged as a violation of the Medicaid requirement that the program be operated with uniform eligibility rules throughout the state.

Four Court Challenges In Past Six Years

The Maine and Indiana lawsuits are the third and fourth court challenges to state attempts to exclude augmentative communication from their Medicaid programs in the last six years. Previously, Iowa and Oregon were forced to reverse their exclusion policies and begin funding augmentative communication. The Iowa challenge, like the ones in Maine and Indiana, was pursued through the courts. In 1985, the federal court of appeals for Iowa ruled that by covering speech services, the state had to also cover augmentative communication devices. In July 1990, Oregon changed its policy in response to a threatened lawsuit by advocates for persons with disabilities.

Note: the Maine and Indiana cases are still pending, and attorney Golinker is very optimistic that as with Oregon and Iowa these cases will be successful. For further information regarding the status of these and similar cases, please contact Lewis Golinker, Esq., funding coordinator for UCPA's Project Mentor, and a funding consultant for the RESNA TA Project at 607/277-7286.

The A.T. Quarterly was a newsletter developed by the RESNA TA Project under a contract with the National Institute on Disability and Rehabilitation Research (NIDRR), U.S. Department of Education (ED). The content, however, does not necessarily reflect the position or policy of NIDRR/ED and no official endorsement of the material should be inferred.

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