The Advocate:
Access to Durable Medical Equipment in Nursing Facilities

Prepared by Protection & Advocacy

This article will discuss the rights of residents of nursing facilities to receive the medical equipment that they need. Nursing facilities (NF's) include skilled nursing facilities (SNF's) and Intermediate Care Facilities for the Developmentally Disabled (ICF-DD's). Because most residents of NF's are Medi-Cal recipients, this article will discuss when a resident of a NF has the right to receive equipment from the facility and when a resident has a right to receive equipment from the Medi-Cal program directly. Understanding the difference and how to appeal a denial may be the key to getting the equipment that a resident needs.

There are three primary ways for a resident of a NF to get durable medical equipment. Several factors, discussed below, will determine which route will work best in a particular circumstance. These include:

• Provision of equipment by the NF
• Provision of the equipment by Medi-Cal directly
• For residents who have a Medi-Cal share of cost, use of the share of cost payments to purchase necessary equipment

Responsibilities of NF's to Provide Medical Equipment 

NF's have a responsibility to provide medical equipment to their residents. There are some limitations to this responsibility but it makes sense to begin by considering whether or not the facility is responsible.

A federal law called the Nursing Home Reform Act requires that all SNF's provide services to their residents that will help residents reach or maintain their highest possible mental and physical well being. [i] Residents must receive services that will allow them to communicate better and improve their ability to travel and ambulate.[ii] The devices and equipment necessary to reach these goals are also required. This would include wheelchairs, walkers and even some communication devices. SNF's must also provide supportive services such as speech, occupational and physical therapy services.[iii] These therapists will often be the source for a recommendation that the resident needs certain equipment.

ICF/DD's must provide active treatment. This includes necessary speech, occupational and physical therapy and other training.[iv] It also includes securing necessary equipment such as communication aids and mechanical supports.[v]  

NF's must only provide common equipment, not unusual or custom equipment. Medi-Cal must directly provide custom equipment that is necessary to meet unique medical needs. How those responsibilities are interpreted and allocated is very important.

Residents can and should ask that the long-term care facility provide necessary equipment. As a practical matter, it may be difficult for a resident to aggressively pursue purchase of equipment by the facility he or she is residing in. But unless the equipment is obviously Medi-Cal's responsibility because it is custom equipment, it makes sense to request purchase of the equipment by the facility first. The request should be made in writing.

If the facility denies the request but it still appears that, in fact, the facility is responsible, Medi-Cal should help secure it for the resident. Medi-Cal is still ultimately responsible to ensure that residents of NF's get what they are entitled to. NF's rates are paid by Medi-Cal. The resident or his or her representative should speak with the Medi-Cal to ask for assistance. The San Bernadino Field Office now serves all nursing homes in California. The toll free number is (800) 472-2300. That office is a good place to start for residents from any part of the state. It is also possible to file a complaint with the Licensing Division of the State Department of Health Services Licensing as discussed below.

Responsibility of Medi-Cal to Provide Medical Equipment to Residents of NF's

Medi-Cal's regulations state that it will directly provide equipment for residents of NF's when the equipment is custom made and necessary to meet a unique medical need.[vi] A resident may be considered to have unusual medical needs when a disease or medical condition is made worse by physical characteristics such as height, weight and body build. Physical characteristics, in and of themselves, shall not constitute an unusual medical condition however.[vii]

The regulations state that canes, crutches, wheelchairs, wheelchair cushions and walkers may be provided directly by Medi-Cal when they must be custom made or modified to meet the unusual medical needs of the patient and the need is expected to be permanent. A custom wheelchair is defined as one that has been constructed to address a particular patient's individual medical needs for positioning, support and mobility. [viii]

Medi-Cal issued new regulations in May of 2000 that may affect a resident's opportunity to obtain equipment directly from Medi-Cal. The new regulations say that Medi-Cal will directly purchase equipment for residents of long-term care facilities when the equipment is all of the following:

• necessary for the continuous care of the patient;
• necessary to meet the unusual medical needs of the patient; and
• custom-made or modified to meet the unusual medical needs of the patient

It appears that these regulations may be an attempt to narrow Medi-Cal's responsibility to directly provide equipment to residents of long-term care facilities from the previous regulations. The ultimate impact will only be evident after a number of residents have requested equipment and Medi-Cal has responded. It may be that the new regulations illegally restrict the access that residents have to equipment but it is still too early to conclude that. 

Requesting equipment from Medi-Cal

If needed equipment appears to be "custom equipment to meet an unusual medical need", then Medi-Cal should be asked to provide it. If the equipment costs more than $100, which it almost always will, the seller or "vendor" of the equipment will need to submit a Treatment Authorization Request (TAR). It is important to work with a vendor that is familiar with the Medi-Cal system.

 "Vendors" are normally medical equipment providers. Find a vendor by asking friends, physicians or therapists or looking in the yellow pages under "medical equipment."  For speech devices, a vendor will generally be a provider of augmentative communication devices. These vendors may not have an office in California. Therefore, a vendor can most easily be located through a speech therapist trained to make recommendations concerning communication devices.  Friends or associates may be able to make a recommendation or speech therapists listed in the phone book can be called to find one competent to evaluate the need for a communication device. It is always best to find a vendor that is familiar with requesting Medi-Cal payment for equipment.

There are several steps that must be taken in order to make a successful application for necessary equipment:

• Obtain an evaluation by a physician.
• If the physician believes the equipment is necessary, he or she must write a prescription. It is best if the physician will also write a letter that includes information about the resident's medical needs and how the equipment will help the resident.
• Generally, it is also important to get a letter or a report from a therapist, such as a physical therapist, occupational therapist or, in the case of communication devices, a speech therapist.
• Take the letters and any other documents that support the need for the equipment to the vendor.
• The vendor will need to complete the Treatment Authorization Request (TAR). The vendor should also prepare a letter or report that describes the device, explains how it is customized, tells how it will help the resident and explains why it is the lowest cost device that will meet the resident's needs. The vendor should attach the letters from the resident's doctor and/or therapist and any literature that describes the device.

Using a share of cost to pay for equipment

Some people have a "share of cost" that they must pay for medical care or equipment each month in order to continue to be eligible for Medi-Cal. For people living in NF's, this money often goes directly to the NF to pay for their care. However, if a resident has a share of cost, he or she can elect to pay that money each month for medical equipment or services that they need but which Medi-Cal will not pay for. Medi-Cal may then have to pay more to the NF for the resident's care, but it is perfectly legal for a resident to decide to use their share of cost to pay for equipment or other services that they need. In fact, the federal law says that a Medi-Cal recipient should first use share of cost to pay for things ordered by their doctor that are not covered by Medi-Cal before they use it to pay for services or equipment that Medi-Cal does cover.[ix]

The resident must first obtain their doctor's prescription for the equipment. They should also tell their NF what they intend to do with their share of cost and that it will need to ask Medi-Cal to cover the difference. They will also need to find a medical equipment vendor who will allow them to make payments for the equipment that they need. Since this is money that they need to spend to maintain Medi-Cal eligibility anyhow, it is to their benefit to spend it on a medical need that would not otherwise be met.

Challenging a Denial of Equipment

If Medi-Cal denies a request for equipment, it is required to provide a written notice. [Medi-Cal will sometime send a notice only to the vendor. This is illegal. The recipient should ask for a notice as well. The recipient has separate appeal rights.] This notice should explain why Medi-Cal is denying the equipment, the statutes, regulations or policies it is relying on and how to file an appeal. If the resident chooses to appeal, they have 90 days to submit a request for a hearing. If the issue involves termination of an existing service, the appeal must be filed within ten days in order to guarantee that the service will be continued pending completion of the hearing process.

The Medi-Cal hearing process is informal. The hearing is in front of an administrative law judge. If Medi-Cal argues that the NF should provide the equipment, the resident should ask the administrative law judge to order Medi-Cal to ensure that the NF provides the equipment if he or she agrees with Medi-Cal. The main argument, of course, should be that Medi-Cal is responsible to directly purchase the equipment because it is custom equipment necessary to meet a unique medical need.  If possible, the resident should ask for advice and assistance from an advocacy organization in preparing for the hearing.

If it appears that the NF is responsible for providing the equipment because it is not customized equipment but the NF denies the request, the resident can file a complaint with the Department of Health Services Licensing and Certification Division. They can file this complaint at the Department of Health Services Licensing Office closest to their residence. They can get the number for the closest office by calling the main office in Sacramento at (916) 445-2070 or look in the state government section of the phone book under Health Services Department, or look at the CANHR web site under how to file a complaint. There is no form. They simply write a letter telling the Licensing Office what the NF has done wrong and why. Staff of the Licensing Office should then investigate.

More information about the right to receive assistive technology is available by calling:

• Protection & Advocacy (PAI) at (800) 776-5746; web site, www.pai-ca.org. There is a separate section on the web site that covers technology access.   
• California Advocates for Nursing Home Reform (CANHR) at (800) 474-1116.
• AT Network- part of the California Foundation for Independent Living Centers at (800) 390-2699; web site, www.atnet.org.

Protection & Advocacy Inc. (PAI) prepared this article under a grant from the California Department of Rehabilitation using funds from the National Institute of Disability and Rehabilitation Research (NIDRR), U.S. Department of Education.

[i] 42 Code of Federal Regulations (CFR) section (§) 483.25
[ii] 42 C.F.R. §§ 483.25(a)(1)(ii) & (v).
[iii] Calif. Welfare & Inst. Code § 14132(c)
[iv] Calif. Welf. & Inst. Code § 14132(c)
[v] 42 C.F.R. § 483.470(g)(2)
[vi] Title 22 Calif. Code of Regulations (CCR) § 51321(h)
[vii] Title 22 CCR § 51321(h)(1)
[viii] Title 22 CCR § 51321(h)(2)
[ix] 42 C.F.R. § 435.831(e)

From the December 2001 Advocate

< back to Advocate archives