NM center on law and poverty
 

Comments on Durable Medical Equipment and Medical Supplies

May 11, 2004

Pamela Hyde, Secretary, JD

Human Services Department

P.O. Box 2348

Santa Fe, NM 87504

Re:  Comments on Proposed regulations contained in New Mexico Human Services Register, Vol. 27, No. 9

SENT VIA FACSIMILE AND US MAIL

Dear Secretary Hyde: 

     The New Mexico Center on Law and Poverty submits the following comments to the Human Services Department’s proposed regulations regarding the provision of durable medical equipment and medical supplies.  At the outset, we would note that the Department appears to have cited the incorrect federal enabling regulation.   The regulatory governing the provision of Durable Medical Equipment and Medical supplies is 42 CFR §440.70(b) (3) not 42 CFR §440.70(c).as indicated at MAD 754.  Additionally, the New Mexico Center on Law and Poverty is concerned not only by what is included in these regulations, but also by what is excluded. 

Proposed Regulation 754.4(2) “Diapers will be limited to 96 diapers per month”

     The Department proposes adding the above sentence in its entirety.  The Center on Law and Poverty is concerned by this limitation.  Individuals will essentially be covered for only three diaper changes per day, which is unlikely to adequately meet the needs of many individuals.  Accordingly, the proposed regulation may violate amount, scope, and duration of services requirements.  (See 42 CFR § 440.230(b)  Individuals who are forced to forego diaper changes, may suffer skin breakdowns and skin infections which will increase Medicaid’s costs.    The Center on Law and Poverty recommends that the Human Services not adopt this proposed language. 

Proposed Regulation 754.31(7) – “Disposable sterile gloves are limited to 100 per month.  Disposable non-sterile gloves are limited to 200 per month.  Recipients are limited to obtaining either sterile or non-sterile gloves each month”

     Again, the Human Services Department proposes adding the above language in entirety.  The Center on Law and Poverty feels that the change is ill advised.  The limitation exists irrespective of the individuals medical needs.  Gloves are used for hygiene and to prevent infections and should not be limited without reason.  For example, if an individual must have a wound/dressing change four times a day, he/she  should be able to obtain 240 gloves a month.  If the same individual has a Hickman catheter that requires sterile gloves for dressing changes, he/she should be able to obtain an additional supply of sixty sterile gloves.  Again, artificially limiting the number of gloves an individual can receive for budgetary reasons may violate amount duration and scope of service requirements.  The Center on law and Poverty does not think that the Department should include this regulation in the final regulations.

     The Human Services Department currently covers the cost of repairs for Durable Medical Equipment (MAD 754.32), and customized wheelchairs.  With prior authorization, it also covers enteral nutritional supplements, disposable diapers, certain types of support and positioning devices, helmets and pads, railings, monitoring devices, passive motion exercise equipment, decubitus care equipment, hospital beds and a host of other devices. (See MAD 754.41)  The Department proposed adding the word “may “ at the front of each of these regulations thereby making the provision of these items permissible, but not obligatory.  The Center on Law and Poverty strenuously opposes this proposed change.  There are no published guidelines that indicate when a device or item will be covered.   This could cause problems because the regulations might not be applied in a consistent uniform manner throughout the state.  Furthermore, it frustrates the intent of the public hearings by giving the Department unfettered discretion and precluding the public from being able to suggest when such items should be covered.
 

     Most troubling, is the fact that the regulations do not describe the procedure an individual follows when he or she is seeking coverage of an item that the state does not ordinarily cover.   Federal Law mandates that individuals have such rights as CMS noted in a letter sent to state Medicaid Directors on September 4, 1998.   In that letter, former CMS Director Sally Richardson notes that “A state may develop a list of pre-approved items of [medical equipment] as an administrative convenience because such a list eliminates the need to administer an extensive application process for each [medical equipment] request submitted.  [A medical equipment] policy that provides no reasonable and meaningful procedure for requesting items that do not appear on a State’s pre-approved list, is inconsistent with the federal law.”  A copy of this letter is attached.  In January 1999 the United States Supreme Court remanded a case to lower court with explicit instructions that the court review its decision in light of this interpretive letter.  Slekis v. Thomas, 525 U.S. 1098 (1999) (Medicaid denied coverage of air conditioner and humidifier)  More recently, the Colorado Court of Appeals applied the same analysis and found that the Defendant Department of Health Care Policy and finance violated a client’s rights by excluding Medicaid coverage of hot tubs without affording Plaintiff the right to argue it was medically necessary.   T.L. v. Colorado Department of Health Care Policy and Finance, 42 P.3d 63 (2001) The New Mexico Human Services Department’s proposed regulations do not set out the process a client follows when he/she seeks coverage of normally excluded items.  Accordingly the New Mexico Center on Law and Poverty concludes that the proposed regulations do not comply with federal law. 

     Thank you for the opportunity to comment on the Human Services Department’s proposed regulations.  If you have questions regarding any of our suggestions, please do not hesitate to call me at 255-2840.

Sincerely,

Jama Fisk

Staff Attorney