• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer
  • Donate Now
  • Sign Up

Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

  • Eligibility/Enrollment
  • Coverage/Appeals
    • Medicare Costs (2021)
    • Self Help Materials – Toolkits & More
  • Topics
    • Basic Introduction to Medicare
    • COVID-19 and Medicare
    • Medicare Costs (2021)
    • Home Health Care
    • Improvement Standard and Jimmo News
    • Nursing Home / Skilled Nursing Facility Care
    • Outpatient Observation Status
    • Part B
    • Part D / Prescription Drug Benefits
    • Medicare for People Under 65
    • Medicare “Reform”
    • All Other Topics
    • Resources
      • Infographics
  • Publications
    • CMA Alerts
    • Fact Sheets & Issue Briefs
    • Infographics
    • The Medicare Handbook
    • SNF Enforcement Newsletter
    • Elder Justice Newsletter
    • Medicare Facts & Fiction
    • Articles by Topic
  • Litigation
    • Litigation News
    • Cases
    • Litigation Archive
    • Amicus Curiae Activities
  • Newsroom
    • Press Releases
    • Editorials & Letters to the Editor
    • CMA Comments, Responses, and Letters
    • Medicare Facts & Fiction
    • CMA in the News
  • About Us
    • Mission Statement
    • CMA FAQs
    • Annual Report
    • Personnel & Boards
    • The Center for Medicare Advocacy Founder’s Circle
    • Connecticut Dually Eligible Appeals Project
    • Ossen Medicare Outreach, Education and Advocacy Project
    • National Medicare Advocates Alliance
    • National Voices of Medicare Summit
    • CMA Webinars
    • Products & Services
    • Testimonials
    • Career, Fellowship & Internship Opportunities
    • Contact Us
  • Support Our Work
    • Donate Now
    • Join the Center for Medicare Advocacy Founder’s Circle
    • Take Action
    • Share Your Health Care Story
    • Tell Congress to Protect Our Care
    • Listen to Medicare & Health Care Stories
    • Sign Up

Center Complaint to Office of Civil Rights Re: Proposed LCD for Lower Limb Prostheses

October 8, 2015

Print Friendly, PDF & Email

Proposed LCD DL 33787 unfairly and illegally restricts Medicare coverage for, and discriminates against, Dr. Roger Catlin, an above-knee amputee who wears an elevated vacuum socket, micro-processor knee and energy storing foot.

Dr. Catlin breaks all assumptions the proposed LCD makes about his co-morbidities related to his functional potential. He ambulates independently, runs a tractor, walks over 300,000 documented steps a quarter and has documented variable cadence in his gait. Under the proposed LCD, his current prosthesis would be denied. It states he should not be a level 3+ ambulatory, thus Medicare would not cover his micro-processor knee, elevated vacuum suspension, nor energy storing foot.

The new criteria in the proposed LCD arbitrarily limits coverage, adds discriminatory prerequisites, and prohibits coverage to “improve the functioning of a malformed body member,” as required by law. It treats prostheses users like second class citizens, unentitled to proper fitting prosthetic limbs with components needed to achieve normal levels of function and independence. Dr. Catlin would have to “demonstrate the appearance of a natural gait” to qualify for coverage. Medicare has no such “natural gait appearance” requirement for those with natural limbs. The proposed LCD also violates Medicare’s “reasonable and necessary” standard by not considering expert opinions from licensed/certified prosthetists in the prosthetic device selection process.

The Law

45 C.F.R. § 85.21(a) “prohibits an agency from limiting a qualified individual with handicaps in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving any aid, benefit or service.” 

45 C.F.R. § 85.21(b)(3)(i) states “[t]he agency may not directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would subject qualified individuals with handicaps to discrimination on the basis of handicap.”

Medicare coverage is available for services and items “reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member.” Social Security Act 1862(a)(1)(A), 42 U.S.C. § 1395y(a)(1)(A)(emphasis added). Whether a covered service or item is reasonable and necessary is determined through referring physician documentation. CMS, Medicare Program Integrity Manual (PIM), Pub. No. 100-08, ch.5, § 5.2.1, §5.2.4. The physician works with a supplier to determine the most appropriate prosthesis.

Application of the Law

The proposed LCD imposes limitations on people with lower limb prostheses that aren’t imposed on others. It limits coverage based on “current” functioning and does not allow consideration of potential functional improvement. It relegates those who use prostheses to outdated technology, far below accepted standards of care. It undermines coverage for people with disabilities.

The proposed LCD contains discriminatory criteria against people needing lower limb prostheses. It humiliates and strips away the dignity of people with disabilities. It imposes a subjective, discriminatory process of strength, capacity, intelligence, posture, and control testing to obtain an item based on how results compare to others. The opinions of expert prosthetists aren’t considered in the development of the plan of care. Proper fittings are disallowed as not reasonable or necessary in ways that other Medicare services would never be evaluated – as just “good enough.” It is a cruel, discriminatory basis for claim denials for people with disabilities, like Dr. Catlin.

The proposed LCD illegally prohibits reasonable and necessary Medicare coverage by not allowing functional improvement of a malformed body member. But, the statute deliberately includes the word, “improve” in this context. To take potential functioning away from someone, while restoring it to others, is discriminatory. We, therefore, ask that CMS rescind this proposed LCD.

Filed Under: Uncategorized Tagged With: comment

Primary Sidebar

Easy Access to Understanding Medicare

The Center for Medicare Advocacy produces a range of informative materials on Medicare-related topics. Check them out:

  • Medicare Basics
  • CMA Alerts
  • CMA Webinars
  • Connecticut Info & Projects
  • Health Care Stories
  • Se habla Español

Sign Up for CMA Alerts

Jimmo v. Sebelius

Medicare covers skilled care to maintain or slow decline as well as to improve.

Improvement Isn’t Required. It’s the law!

Read more.

Medicare: Build Back Better

By prioritizing Medicare beneficiaries and the health systems that serve them, we can avoid drastic national consequences. The Center for Medicare Advocacy proposes a five-part plan that will make Medicare a bulwark against the worsening health and economic challenges facing the American people.

Learn more.

Latest Tweets

  • A powerful message about #LongTermCare from @LastWeekTonight with @iamjohnoliver explains the insufficient oversigh… https://t.co/iKp8Mi8WSU, 15 hours ago
@CMAorg

Footer

Stay Connected:

  • Contact Us
  • Sitemap
  • Products & Services
  • Copyright/Privacy

© 2021 · Center for Medicare Advocacy