September 29,2005

Grassley Seeks Further Refinement of Power Wheelchair Rules

WASHINGTON – Sen. Chuck Grassley, chairman of the Committee on Finance, today urgedthe Centers for Medicare and Medicaid Services to create a smooth transition to new coverage and payment policies for power wheelchairs. These new rules appear to be overly restrictive, confusing, and impossible to successfully implement in the proposed time frame – fueling fraud, waste and abuse in the Medicare program.

The text of Grassley’s letter to the Health and Human Services secretary and director of the Centers for Medicaid and Medicaid Services follows.

September 29, 2005

Via Electronic Transmission
Original via USPS Mail

The Honorable Michael O. Leavitt
Department of Health & Human Services
200 Independence Avenue, SW
Washington, DC 20201

Dr. Mark McClellan
Centers for Medicare & Medicaid Services
200 Independence Avenue, SW Room 339G
Washington, DC 20201

Dear Secretary Leavitt and Administrator McClellan:

Since the Committee on Finance (Committee) held its hearing entitled, Taking Taxpayers for a Ride:Fraud and Abuse in the Power Wheelchair Program, I have urged the Centers for Medicare andMedicaid Services (CMS) to strengthen its oversight and program integrity efforts, while maintainingbeneficiary access to medically necessary devices. As Chairman of the Committee, I have a numberof concerns regarding CMS’s revised coverage and payment policies for power mobility devices(PMDs).

In FY 2003 Medicare paid $1.2 billion for PMDs. In light of the historical fraud, waste, and abusesurrounding this benefit, CMS must get the PMD policy right the first time and ensure a transparentand seamless transition to new coverage and payment policies. CMS has made considerable effortssince the Committee’s hearing, including streamlining beneficiary access for medically necessarywheelchairs, publishing an interim final rule, creating a National Coverage Determination (NCD),and revising the Healthcare Common Procedure Coding (HCPC) system. For this, I am grateful.However, it appears that in the sprint to publish these requirements, CMS may have added anunnecessary degree of subjectivity to this process.

Accordingly, I request that CMS carefully consider the following concerns:


Elimination of the Certificate of Medical Necessity (CMN) without a scripted form may open thedoor to fraud, confusion, and subjectivity. Therefore, CMS should consider a scripted prescriptionor similar form with open-ended questions that directly link to the NCD. Under the proposed rule,a treating practitioner will need to sort through the NCD, Mobility Assisted Equipment (MAE) tool,patient chart, and other educational documents to determine what is appropriate to include in theprescription. The new Local Coverage Determination (LCD) alone is approximately 18 pages inlength. Practitioners are already pressed for time, without having to read and comprehend an 18 pageLCD. In the interim final rule, CMS stated that the CMN was eliminated because “suppliers betterknow how to properly evaluate and document a beneficiary’s medical condition and appropriatelyprescribe PMDs.” This statement is at odds with the confusion and lack of understanding voiced bysuppliers at the open door forum last week.

Please state whether or not CMS has considered creating a scripted prescription to walk the treatingpractitioner through the mobility algorithm. A one-page scripted prescription or similar form mayhelp the treating practitioner document the medical record and understand the NCD in a clear andconcise manner, as opposed to promoting an 18-page LCD. This script could also include an openspace for the treating practitioner to explain the coverage decision and link MAE questions toHCPCS codes. Most importantly, CMS should include an attestation certification with reference tothe False Claims Act to strengthen program integrity efforts.


In addition, the October 25, 2005, effective date of the interim-final rule appears to be unrealistic.Given that most practitioners are unaware of the rule changes, LCD, and revised HCPCS codes,CMS may want to reconsider this timeline. In fact, final comments on the LCDs are not due untilOctober 31, 2005, and the Durable Medical Equipment Regional Carriers (DMERCs) will notfinalize these coverage decisions until the end of November. Carriers will not even be able toimplement the new codes until April 2006. It seems as if CMS is trying to finish a puzzle with someessential pieces missing. Postponing the effective date of the rule will provide CMS with time tofully educate providers and suppliers and ensure a transparent and smooth transition to the new PMDcoverage and payment guidelines. Indeed, as eager as I am to see this rule implemented, I am equallycommitted to ensuring that we do this right the first time – with all the pieces of the puzzle intact.


CMS should also consider working with contractors to decrease subjectivity and ensure consistencyas the four DMERCs work to develop their LCDs. In the past, CMS retracted coverage decisionsbecause of inconsistent interpretations of “bed or chair confined.” The new NCD is equally ripe forinconsistent interpretation and application across the four DMERCs.

Chapter 13 of CMS’s Program Integrity Manual states, “The contractor shall ensure that all LCDsare consistent with all statutes, ruling, regulations, and national coverage, payment, and codingpolicies.” CMS should not abandon this important task to the contractors, but have an active role inthe oversight of LCDs. With CMS’s lack of oversight, there is already confusion and uncertainty.

For example, one LCD requires a beneficiary who needs a “specific use or high activity specific usepower wheelchair” to have a face-to face comprehensive evaluation by a RESNA (RehabilitationEngineering & Assistive Technology Society of North America) Assistive Technology Partner(ATP). However, six states have only five or fewer ATP’s and in Iowa, there are only 17 ATPs.Moreover, not all 17 ATPs in Iowa are even licensed to conduct a power wheelchair exam. Thiscurrent policy is jeopardizing access for beneficiaries not only in Iowa, but across the Nation. CMSshould meticulously review the LCDs to ensure consistency and to ensure that beneficiaries in ruralareas have access to medically necessary PMDs.

At the very least, CMS must not only clarify the NCD, but also provide additional guidance on the30-day rule and the home assessment provisions. After all, CMS must not only protect the PMDbenefit from fraud, but also ensure that beneficiaries have access to medically necessary PMDs ina timely manner.

In light of the aforementioned concerns, as Chairman of the Committee, I request that CMS respondto the following questions by October 11, 2005.

1. CMS estimates the add-on G-code payment will cost the Medicare program approximately $5million annually. However, it appears this estimate only includes payment for prescribed scootersand power wheelchairs. If a physician conducts the full examination, documents the medical record,and determines a lightweight manual wheelchair is medically appropriate; will the physician receivethe add-on payment? If not, why?

2. If the beneficiary meets with the nurse practitioner and the physician, will CMS provide the add-onpayment to both providers or will CMS provide one payment per prescription? Will CMS providethe nurse specialist and physician the same amount for the add-on G-code payment?

3. Provide a crosswalk from the 49 codes released on February 2005 to the 63 codes released onSeptember 14, 2005. Include a detailed explanation of each change along with any new testingrequirements.

4. Provide the number of manual wheelchairs, POVs, and power-wheelchairs prescribed andreimbursed from January 1, 2003, to current. Include a collective summary per DMERC.

5. Please explain how the competitive bidding program and new quality standards for DMEPOS willaffect the PMD benefit.

Thank you in advance for your assistance on this matter. I would appreciate a response to theenumerated request and concerns raised in this memo no later than October 11, 2005.


Charles E. Grassley