The following has been extracted from a memo dated January 11, 2002, which analyzes a change in federal policy that will have a significant impact on coverage of benefits important to people with disabilities and chronic illnesses. The memo has been reproduced with the permission of Peter Thomas of Powers, Pyles, Sutter & Verville, P.C., Twelfth Floor, 1875 Eye Street, NW, Washington, DC 20006-5409.
Late in the 2001 congressional session, Congress passed by wide margins the Defense Reauthorization Act of 2001 and President Bush signed the bill into law on December 28th (Public Law 107-107). Among other things, the bill addresses the Department of Defense health care program known as TRICARE, formerly CHAMPUS, which serves active duty military, their dependents, and retirees. The new law dramatically improves the TRICARE benefit package to better meet the needs of TRICARE enrollees with disabilities and chronic illnesses, especially in the area of coverage of assistive technologies and rehabilitation therapies.
The new package of covered devices and services will benefit thousands of people with disabilities served by the TRICARE program. The greater significance of the new law, however, may be in its precedential value for sister federal health programs such as Medicare and Medicaid, the Federal Employee Health Benefits Program, the Veterans Administration and private health plans. The new TRICARE benefit package is a model for modernizing coverage of health care benefits required by people with physical disabilities and chronic conditions.
The new law was spearheaded by Senator Kennedy (D-MA) with strong support from Senators Levin (D-MI), Chairman of the Senate Armed Services Committee, and Senator Warner (R-VA), ranking member of the committee. The Bush administration endorsed the new package of benefits, demonstrating its commitment to enhancing access to assistive technologies for people with disabilities. I worked extensively with Connie Garner and Menda Fife of Senator Kennedy’s office on the specific legislative language. With the assistance of Justin Hunter, an associate with my firm, I drafted the initial benefit language and worked with Senator Kennedy’s office to refine the draft statute. This work proceeded throughout 2001 largely under the radar screen.
The new law stands in stark contrast to the existing TRICARE benefit package. “Any durable medical equipment” and “any rehabilitative therapies” that improve, restore, or even prevent deterioration in the function of a patient are considered covered benefits. Hearing aids are no longer excluded but are covered in certain circumstances. Augmentative communication devices (AAC’s) are specifically covered as voice prostheses without restrictions. Prostheses (artificial limbs) and orthotics (braces) continue to be covered benefits but all accessories and supplies, as well as training in the use of these devices are covered as well. The new law also calls for a study on the adequacy of TRICARE’s mental health benefits and institutes meaningful changes in TRICARE’s long term care benefit.
In short, the new TRICARE benefit package sets a strong example for other federal programs and private payers and may lead to government-wide/industry-wide expansions of coverage in this important area of health care benefits. Following is an analysis of the specific language of the new law.
Prosthetics (Artificial Limbs) and Orthotics (Braces)
While orthotic braces and prosthetic limbs have been covered by TRICARE for years, the statute and regulations simply made reference to these benefit categories without elaboration. The new law makes it clear that the authority to provide a prosthetic device under the TRICARE program includes the authority to provide “any accessory or item of supply that is used in conjunction with the device for the purpose of achieving therapeutic benefit and proper functioning.” The new law also will cover “[s]ervices necessary to train the recipient of the device in the use of the device.” The type of provider who may provide this training is not spelled out in the bill, but in addition to prosthetists, it would stand to reason that therapists would be considered appropriate providers of prosthetic training services.
The statute also makes clear that repairs of the device for normal wear and tear or damage are covered, as they are under the Medicare program. Replacements are covered if the device is lost or irreparably damaged or the cost of repair would exceed 60 percent of the cost of replacement. Replacements will also continue to be covered if there is a change in the patient’s condition that requires a new device, although the new law does not restate this. Again, this new policy is consistent with Medicare coverage for prosthetics. These same policies on repairs and replacements apply to orthotics as well but the new law does not restate this explicitly. This will be an issue to be addressed as regulations are developed on these provisions.
Finally, like the recently-enacted Medicare law, the statute limits the provision of prostheses to qualified prosthetic practitioners. The statute states that “A prosthetic device customized for a patient may be provided under this section only by a prosthetic practitioner who is qualified to customize the device,” as determined by regulations developed by the Secretary. These regulations may or may not be impacted by Medicare’s Negotiated Rulemaking Committee, scheduled to meet later this year and expected to address essentially the same issue.
For the first time, the new law authorizes coverage of hearing aids under the prosthetics benefit. Hearing aids are restricted to “dependent[s] of a member of the uniformed services on active duty and only if the dependent has a profound hearing loss, as determined under standards prescribed in regulations” by the Secretary. While this restriction may be a significant limitation on this new benefit, it represents a major advancement in coverage of assistive technology by a government health program and the private health plans that participate in TRICARE.
Augmentative Communication Devices
Similar to hearing aids, the statute states that “[a]n augmentative communication device may be provided as a voice prosthesis...” No restrictions on this benefit are included in the statute. This provision represents a tremendous advance in assistive technology coverage. It is tantamount to a national coverage determination for AACs, a step that the Medicare program has not yet taken but has been considering. The fact that AACs are explicitly covered as “voice prostheses” is also very significant, for it establishes a precedent that a device that replaces the function of a malformed body part, rather than the body part itself, can be considered a covered prosthetic device.
Durable Medical Equipment
The new coverage language for durable medical equipment (DME) is perhaps the most significant change in the TRICARE benefit package. The existing TRICARE benefit covered DME, “such as wheelchairs, iron lungs, and hospital beds.” This antiquated statutory language resulted in a dismal and completely inappropriate DME benefit under the TRICARE program. The new law explicitly restates coverage for these three categories but includes coverage for “Any durable medical equipment that can improve, restore, or maintain the function of a malformed, diseased, or injured body part, or can otherwise minimize or prevent the deterioration of the patient’s function or condition.” [Emphasis added].
The statute continues by also specifying coverage for “Any durable medical equipment that can maximize the patient’s function consistent with the patient’s physiological or medical needs.” Taken together, these two provisions represent a quantum leap in the adequacy of DME coverage for people with disabilities and chronic illnesses and clearly serve as a model for other third party payers. Finally, the new law covers any customization of DME, as well as any accessory or item of supply of DME as long as it is “essential for the achievement of therapeutic benefit for the patient, making the equipment serviceable, or otherwise assuring the proper functioning of the equipment.” The new law authorizes the agency to provide certain DME to TRICARE enrollees on a rental basis, consistent with the approach used by the Medicare program.
Finally, the new law expands TRICARE coverage to “[a]ny rehabilitative therapy to improve, restore, or maintain function, or to minimize or prevent deterioration of function, of a patient when prescribed by a physician. The existing statute only referenced coverage of “outpatient care,” with no specific reference to rehabilitation therapies. This new language expands significantly the range of therapies that will be considered covered benefits for TRICARE enrollees with disabilities and chronic conditions.
There is great value in TRICARE’s new benefit package for enrollees of that health care program. The greatest value, however, lies in the impact that these changes may have on other federal health programs and private payers. The new TRICARE benefit package is a model benefit package for people with physical disabilities and chronic conditions and represents the achievement of some of the most long-standing and meaningful health policy goals of the disability community.