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Decision by DMMA to deny claim for Durable Medical Equipment


IN RE: Kay Sherlock

Appearances:
Laura J. Waterland, Esq., Community Legal Aid Society, Inc., Counsel for Kay Sherlock, Appellant
Mary Ann Davis, MSPT, Physical Therapist, Witness
Lindsay Hawk, Case Manager, Witness
Gregory E. Smith, Esq., State of Delaware Dept. of Justice, Civil Division, Counsel for Division of Medicaid & Medical Assistance, Diamond State Partners, Appellee
Carol Darby, R.N., Division of Medicaid & Medical Assistance, Witness

I.

Kay Sherlock's (a pseudonym) co-guardians, [redacted] (her mother) and [redacted] (her sister), on behalf of the Appellant, Kay Sherlock (a fifty-seven year-old female diagnosed with cerebral palsy, malabsorption, hiatal hernia and chronic constipation), appeal the decision of Diamond State Partners ("DSP"), to deny additional funding to the Mary Campbell Center ("MCC") (where Kay resides) for Kay's manual tilt-in-space wheelchair.

DSP denied additional funding because the chair is "non-customized". Non-customized wheelchairs are covered in the Medicaid per diem rate provided to MCC for Kay's care. It is the Appellant's argument that the wheelchair at issue is customized, thus, qualifying for a lump-sum payment to MCC for the wheelchair, in addition to the per diem. A Fair Hearing was held on August 3, 2006 concerning this appeal.

II.

Carol Darby R.N. was sworn in and testified for DSP. She stated that in October of 2005, the Division of Medicaid & Medical Assistance (DMMA) received a request from a provider, National Seating and Mobility ("NSM"), for a manual wheelchair for Kay Sherlock. NSM submitted the request with a letter of medical necessity/patient evaluation (State's Exhibit Two, signed by Mary Ann Davis, Kay's physical therapist, and by Dr. E. McConnell); the Medicaid Certificate of Medical Necessity with Appendix B submitted by NSM (State's Exhibits Three and Four); the HCPC codes for the chair and the pricing. (Ms. Darby stated that this acronym stands for: "Health Care Common Procedure Coding System Codes". She stated that every part of a wheel chair has a specific HCPC code assigned to it.)

First, Ms. Darby reviewed the documents submitted by NSM to determine if the wheelchair was medically necessary. Ms Darby stated that Kay Sherlock has been issued a script by her physician for a new manual tilting wheelchair. (State's Exhibit One) The script states that Kay needs a "new manual tilting wheelchair." No one could testify who exactly signed the script but it appeared that it was Dr. McConnell. No doctor testified regarding the specific customization needs of Kay's chair. Apparently, Dr. E. McConnell signed the letter of medical necessity dated August 12, 2005. It does not appear that a doctor signed any other papers on Kay's behalf introduced as evidence in this case (other than Dr. Brazen who signed the State's denial).

As a result of the submissions for Kay Sherlock, Ms. Darby decided that the wheelchair requested was medically necessary; however, Ms. Darby questioned whether or not the wheelchair was customized. Ms. Darby did not question the medical necessity of the items requested in the patient evaluation/letter of medical necessity (States Exhibit Two); however, she questioned whether or not the letter of evaluation specifically referred to Kay's condition. This is because the next-to-the-last paragraph in the document stated that the wheel chair specs were "developed to provide 'Bill' with needed skeletal support, improved positioning for comfort and functional activities, and pressure relief on his skin." Ms. Darby felt this was a sloppy letter of medical necessity and did raise questions because the letter refers to another patient.

Ms. Darby concluded that the items requested were pretty standard except for the foam-in-place kit to mold the back of the chair to Kay's back. She has had other requests for foam-in-place kits. She has seen them previously on certain chairs, but not on every chair by any means.

She described the foam-molding process. There is a kit that comes and it's like a plaster cast and it is put on the chair. Then, they take the patient and actually have them sit against it, and it makes a form. Then they mix up the ingredients—she is not sure what they are, but it is a type of foam—and it is molded to the back. If there is a scoliosis or something, the foam is molded to the shape of the patient's back. She is not sure how the foam back is attached to the chair. The foam back can be removed after it is placed on the chair. She stated that if you have a wheelchair that has a molded back, someone else could use it if a pillow, a piece of foam, or a gel cushion—anything—were put in front of the molded back Also, the wheelchair could be used for another person by removing the back and putting on a new one.

Ms. Darby testified that under the Delaware Long Term Care Institutional Guidelines § 3.4 for Durable Medical Equipment ("DME") (State's Exhibit Five), which she followed, Kay's chair was non-customized. That section states in pertinent part, that "Non-customized durable medical equipment, including wheelchairs, is included in the nursing facility per diem rate for . . . adults who are residents of long term care facilities." She stated that a facility per diem rate includes the cost of room and board, food, any type of needed equipment. It's all included. This is money that the State is already paying on a daily basis to MCC for a Medicaid-qualifying patient. Ms. Darby read additional pertinent parts from the DME policy. That policy is set forth in full in the "Applicable Law" section herein below.

Based on the DME policy, Ms. Darby recommended denial of a lump-sum (or fee-for-service) payment to MCC for the wheelchair. She reviewed Medicaid guidelines to determine which wheelchairs are customized and which are not. She reviewed the guidelines completely and determined that the one ordered for Kay was not custom under those guidelines. She then forwarded the information to Dr. Brazen for him to review. Dr. Brazen agreed and made the denial.

Appellant introduced the Institutional Policy Manual Section 3.4 concerning Supplies and Durable Medical Equipment, entitled "Authorization for Specialized Wheelchairs" (Appellant's Exhibit One). This section is also set forth herein below under the Applicable Law.

Purportedly there was an internal appeal from Dr. Brazen's decision. Ms. Darby had no first-hand knowledge regarding the internal appeal. Appellant introduced an unsigned letter appearing to have been written by Dr. E. McConnell, Physician, and Mary Ann Davis, MSPT Physical Therapist, which, apparently, requested an appeal. (Appellant's Exhibit Two) This letter also sets forth a summary of why the wheelchair at issue is customized to Kay's trunk. The internal appeal resulted in denial. (Appellant's Exhibit Three) These documents were included in the State's record in this matter. A document showing the breakdown of the chair and its parts was introduced. (Appellant's Exhibit Four)

Lyndsay Hawk, Kay Sherlock's Case Manager was sworn in and testified. She is an advocate for Kay. She prepares Kay's schedule, takes care of her shopping needs, and advocates. Kay has been a resident of MCC since 1977. MCC is a long-term care facility that focuses on active treatment. Kay participates in many different activities in and out of the center. She is provided with PT, OT, Speech and physical development. She gets up around 8:00 a.m. She has her T.V. Depending on the day, she has different activities. She does PT, and uses the hot tub for joint mobility. She participates in a "paws and claws" program. She does a memory-makers educational program for speech and orientation activities, bible study, etc. Her typical personal schedule was introduced. (Appellant's Exhibit Six) (Appellant's Exhibit Five was withdrawn.)

MCC is different from most nursing homes. Kay has an individual program plan ("IPP") (Appellant's Exhibit Seven) which is developed every year and she has goals she works on for a year. She is in a wheelchair from the time she gets up until the time she goes to bed except when in the hot tub, when she is in bed, or when she is getting dressed. Six months out of the year, two times per week, Kay practices bocce and bowling for the Special Olympics. To benefit from the program at MCC, Kay must be able to participate in the active treatment and programs. There is no point in the day when Kay's wheelchair would be available for someone else to use. At night, it must be kept in her room so that it is available to exit her in case of fire.

The chair Kay has been using, her old chair, impeded Kay's abilities because the upright position of the chair put too much pressure on her bottom area. When she is able to tilt back, she's more mobile with her arms and can participate in more activities because she can move. She can move and do bocce and bowling better. In the old chair she leans forward, she drools and drains. She communicates through some verbalization, but mostly facial communication. With the old chair her face hangs down, and it is hard for Kay to communicate with facial expressions. She can't push her head up. In the old chair she cannot do head nods to communicate yes or no. A usual resident of MCC will be a lifetime resident.

The purpose of the testimony of Ms. Hawk is to show that Kay needs this wheelchair, and to show how much she uses the chair, how much she is in the chair, and that no other person would be in her chair. She has no basis for saying that Kay's chair could never be used by anyone else. She did not know whether or not anyone else could ever use Kay's new chair. She has no authority to request or requisition equipment and is not involved with that process at MCC. A couple of the residents at MCC have wheelchairs that don't tilt back.

Mary Ann Davis, MSPT, Physical Therapist and Consultant at MCC was sworn in and testified. Her qualifications include a Master's Degree in Physical Therapy from the University of Medicine and Dentistry of New Jersey. She has worked as a physical therapist for seven years. She has worked at MCC for five years. Kay has been her patient for five years.

She is in charge of the Physical Therapy department. They do annual assessments of the sixty-four residents who live there. She is part of the goal development team. She develops physical therapy goals for patients, on a year-end basis, based on medical changes that come up annually. She works very closely with the wound-care nurse regarding prevention and healing of wounds. This is a very large part of her job.

Ms. Davis testified that she prepared Kay's letter of medical necessity. The proposed wheelchair for Kay costs approximately $4,500. As to the confusion regarding State's Exhibit Two, she stated that when she does the letters of medical necessity, she cuts and pastes the last paragraph and signature line from another letter. She believes when she did that in this case, she grabbed something from "Bill's" letter during the cut-and-paste process. She stated that if there was a question at the time of the denial, she could have cleared up the issue with a phone call.

Kay is a non-ambulatory patient who is dependent for all of her care. She is now unable to eat by mouth, so she is too thin. She is dependent on her wheelchair for mobility. Her current chair is approximately seven years old. The life span of a typical chair at MCC is widely varied, but after three or four years, with normal use, you start replacing different parts and pieces of it. Five years and beyond it is considered an old chair. If a patient's medical condition remains status quo (which they rarely do), she would say the normal life is five years.

About two years ago Kay had a pretty severe change in medical status. She became extremely rigid—so rigid that she was not able to chew. She also wasn't swallowing, and it led to a decrease in nutritional status. She wound up having skin break down on her bottom. They tried to manage it as best they could, but they realized that she needed to be hospitalized and have a feeding tube inserted. When she came back from the hospital, Kay was slumped over to the side. She was drooling a lot. She had circulatory issues that weren't there before. They don't know exactly what was the cause of all this, but she had a lot of mottling in her lower extremities.

Regardless of what Ms. Davis did, no matter what support Ms. Davis attached to the chair (like a tray or different things on the side), Kay was falling in front and leaning to the side, and looking down as well. To add to it, the skin break out on the bottom was greatly increased by not getting the pressure off of her bottom. Her activities and communication were greatly impacted because Kay was leaning to the side and looking down.

Once MCC found that the new chair was being denied, Ms. Davis spoke with the wheelchair company, NSM, and they loaned Kay a chair that is very similar to the one that MCC requested, except it does not have the molded back, so it does not get the pressure off of Kay's spine. She has been using that loaned chair for about ten months now. Kay was brought to the hearing in the old chair that she had not been placed in for the last ten months. The new chair creates an upright posture which is better for wound prevention. The new chair does not have a molded back. If NSM has another need for the chair, they may take it back. They could take it back to use it as a demo—i.e. loan it to another patient for a week to see if this type of chair would also work for someone else. They might take it back if there was someone else who wanted to try it, the tilt function especially, and see if it could work for them.

Ms. Davis testified that MCC has sixty-four patients, sixty of which use wheelchairs. She believes that only one or two of the sixty patients use non-customized wheelchairs. She believes almost all sixty wheelchairs at MCC are considered customized. There are no other wheelchairs available at MCC that Kay could use. Ms. Davis stated that there are no typical bodies at MCC. There is an over-sized chair that could be stuffed with pillows, but someone else is using that right now, and it would not be appropriate for Kay's long-term use.

Ms. Davis was specifically asked how she designed the chair for Kay. The chair was designed based on (1) what Kay was required to do to stay at MCC (she must be able to participate in federally-mandated activities to be able to stay); and (2) her body dimensions.

Ms. Davis explained the process she used for selecting the chair that was ordered for Kay. First, they looked at her history of the sacrococcygeal wound; the history of her change in tone; the idea that they wanted to have her face lifted up so she could have vertical view, maintain eye contact and socially interact, lift her head; and the drooling they wanted to manage. She also had edema and discoloration in her legs. These were considerations for the "tilt" feature, and have been very well managed since Kay began to use the loaner chair.

The fact that Ms. Davis had used different supports to prevent Kay from falling to the right and none were successful was the reasoning for the customized seat back. Experience also taught them that putting someone like Kay in a tilted back could put undue pressure on her spine and could cause spine breakdown. They thought the molded back would help that because the pressure is more-evenly distributed. They measured Kay's leg lengths, and torso length, and hip width.

Ms. Davis ordered chair parts from five different suppliers to develop Kay's chair. When the chair comes in, adjustments are made to fit Kay's body. They adjust each component of the chair. They would adjust the leg rest to the right length, the seat back and height (in this case they would create the seat back). The head rest they have to adjust, the arm-rest height would be adjusted.

To get the molded back, you order a hard plastic shell. You take a plastic bag and put it behind the patient, but in front of the shell and pull it around her sides. The therapist holds Kay into a position at which they would like Kay to sit. A mix of chemicals is poured into the bag. In three minutes, the liquid blows up into foam and fills up all the gaps surrounding the body, between the chair and the body. Once it's done in foam, you have a mold of the person in the back of the chair in the position that you want. If there is a change in their posture in the future, they have to remove the molded foam back, make a new molded back and replace it on the chair.

No one else could really use the molded back. Ms. Davis said she would absolutely never put something in front of the mold to make it usable for someone else, as Ms. Darby had suggested. To do that would push the patient forward, which would affect the amount of support under the thighs, and the amount of room to put the feet on the foot plates. A gel pillow would also push someone forward. That could not be a permanent situation.

If someone passes away, they scrap the chair and hope that the parts can be re-used. Nobody else would use Kay's chair. The foam back from the chair can be removed. If the foam back is removed a patient with the same hip width and leg length might be able to use the chair, as long as they fit orthopaedically into that chair. It is Ms. Davis' position that a customized wheel chair is person-centered and that all wheelchairs except two at MCC are custom wheelchairs. If Kay were to pass away, unless they could take off the back and let somebody else use it with another back, it would be scrapped. If somebody else needed parts, it would be scrapped. They would re-use parts that still had good integrity and could be interchanged with other wheelchairs.

Ms. Davis reviewed the chair order part-by-part. The tilt feature is included in the wheelchair frame. The frame does not include the back, wheels, footplates, or seat. She went down the quotation list and explained each part on the wheelchair. The frame allows the chair to tilt. The transit option allows the chair to be tied down during transportation. The standard seat pan allows a cushion. Height-adjustable armrests are requested to support her elbows. Angle-adjustable footplates were ordered to keep her feet from sliding off. The leg rest can possibly be attached to another frame. The pneumatic castors are just small wheels. The fold-down extension handles allow her wheelchair to be pushed. Anti-tip bars are especially necessary with a tilting chair. A multi-access bracket keeps her headrest off-center which she needs. They are using the same headrest as she used on her old chair. This model worked well for her. The seat belt is long lasting. The jay cushion is one that is standard; Kay has used this model forever and it works for her.

III.

The factual findings of an administrative officer must "be supported by substantial evidence on the record as a whole." See 31 Del. C. § 520. Dean v. Delaware Dept. of Health and Soc. Serv., 2000 Del. Super. LEXIS 490, aff'd sub. nom. 781 A.2d 693; 2001 Del. LEXIS 205 (Del. 2001).

Appellant, Kay Sherlock, is a fifty-seven-year-old female diagnosed with cerebral palsy, malabsorption, hiatal hernia and chronic constipation. Kay Sherlock has been issued a script by her physician for a new manual tilting wheelchair. (State's Exhibit One) The script states that Kay needs a "new manual tilting wheelchair." The wheelchair costs approximately $4,500.

There is substantial evidence on the record, and it is undisputed by the State, that a manual tilting wheelchair (as described in the letter of medical necessity and pursuant to the doctor's script) is medically necessary for Kay. This is also established by the testimony of Kay's Case Manager, her Physical Therapist, and Ms. Darby, the DMMA/DSP nurse.

No doctor testified regarding the specific customization needs for Kay's chair. No one could testify as to who signed the script. Ms. Davis testified that she prepared the letter of medical necessity dated August 12, 2005. Apparently, Dr. E. McConnell signed the letter of medical necessity dated August 12, 2005, but no one authenticated his signature. It does not appear that a doctor signed any of the other papers on Kay's behalf introduced as evidence in this case (other than Dr. Brazen who signed the state's denial). Ms. Davis explained that she selected the wheelchair that was ordered, and she explained her reasoning process. This was not a physician-directed process.

Kay's requested chair could be used by someone else with adjustment and/or removal and exchange of the foam-molded seat back. There is no testimony on the record that Kay's chair could not be used for someone else. Ms. Hawk and Ms. Davis testified that it was unlikely that the chair "would" be utilized by someone else, and that it would not be available to anyone else. Ms. Hawk stated she did not know, and had no basis to know, whether or not anyone else "could" ever use Kay's new chair. Ms. Davis stated that, upon Kay's demise, if no one needed the chair for parts, it was possible that they "could" take off the back and let someone else use it. Ms. Davis stated that the chair Kay now uses (which is the same as the chair requested, except for the back) "could" be taken back by the chair company and loaned to someone else.

The wheelchair frame and accessories were pretty standard. Ms. Darby testified to this and Ms. Davis explained that Kay's chair is basically a tilt-back (reclining) chair of a different size due to Kay's hip width. She testified that the chair will come with the following non-permanent wheelchair accessories that can be added and removed according to Kay's medical needs. The transit option allows the chair to be tied down during transportation. The standard seat pan allows a cushion. Height-adjustable armrests are requested to support her elbows. Angle-adjustable footplates were ordered to keep her feet from sliding off. The leg rest can possibly be attached to another frame. The pneumatic castors are just small wheels. The fold-down extension handles allow her wheelchair to be pushed. Anti-tip bars are especially necessary with this reclining chair. Multi-access bracket keep her headrest off-centered. They are using the same headrest as she used on her old chair. The seat belt is long-lasting. The jay cushion is one that is standard.

Ms. Davis' testimony established that MCC would consider the new chair as facility owned, and it would direct the use of the chair, its accessories and/or repairs during its use by Kay, and upon her demise.

IV.

The issue in this case is: who is paying for Kay's medically necessary wheelchair? The Appellant argues that Kay's wheelchair is customized; therefore, it must be paid for by Medicaid, over and above the per diem payments made to MCC for Kay's care. The State's position is that the wheelchair has already been paid for by Medicaid in the per diem sums paid to MCC for Kay's care, because per diem rates cover non-customized durable medical equipment, and this wheelchair is not custom.

V.

The mandate of the hearing officer, with respect to Medicaid statutes and regulations, is to "apply the State rules except to the extent they are in conflict with applicable federal regulations." 16 DSSM § 5406.1(1). "[T]he decision of the hearing officer [must be] supported by substantial evidence and [be] free of legal error." Brooks v. Meconi, 2004 Del. Super. Lexis 363, *3 (Del. Super. Ct. 2004).

Neither party disputes that the Delaware Institutional Provider Policy Manual ("IPPM") controls how payments for wheelchairs are made to institutions receiving per diem payments for patients needing such equipment. Both parties have submitted different sections of the IPPM to support their respective positions on the issue of customization of Kay's chair.

The State submits § 3.4 of the chapter entitled "Institutional Policy Manual" (State's Exhibit Five) for the proposition that Kay's wheelchair is not custom under that section. Appellant submits § 3.4 of a different chapter, entitled "Authorization for Specialized Wheelchairs" (Appellant's Exhibit One), for the proposition that chairs with HCPC codes can be considered customized.

Section 3.4 of the IPPM Chapter entitled "Institutional Policy Manual" states in pertinent part:

3.4  Durable Medical Equipment

Non-customized durable medical equipment, including wheelchairs, is included in the nursing facility per diem rate for both children and adults who are residents of long term care facilities. The per diem rate covers the cost of room and board, medical services and medical supplies and equipment routinely provided to nursing facility residents. Nursing facilities are expected to provide wheelchairs of varied types (standard, roll about chairs, semi-reclining, fully reclining, amputee, hemi-height, lightweight, heavy duty, etc.); and wheelchairs of different sizes (standard, standard power, extra small and extra wide size, etc.). Nursing facilities must have sufficient numbers of wheelchairs to meet the needs of their patients according to the overall medical profile of their population. Furthermore, nursing facilities are expected to provide non-permanent wheelchair accessories that can be added and removed according to the client's medical need(s), including, but not limited to: adjustable arm rests, cushions, trays, anti-tipping devices, seats, seat belts, leg rests, and positioning devices. Medicaid will not provide fee-for-service reimbursement for accessories or repairs for facility-owned durable medical equipment, including wheelchairs.

Medicaid considers durable medical equipment to be customized if it is medically necessary that the device be designed so that only the individual client can use it. In contrast, non-customized DME can be used by other clients either without modification or following the removal or attachment of accessories. In general, Medicaid does not consider a wheelchair or other durable medical equipment to be customized if the selection of the equipment and all significant adaptations can be coded using HCPCS procedure codes. However, the fact that a piece of equipment or an adaptation cannot be .coded using HCPCS codes does not necessarily indicate that it meets the definition of customized DME.

It is not expected that many nursing facility residents would qualify for a custom wheelchair as the standard wheelchairs described above should meet the needs of most residents in a nursing facility where there is continuous assistance available for indoor mobility needs. Medicaid will consider requests for fee-for-service reimbursement for custom wheelchairs for those clients who have complex medical, seating, positioning and mobility needs, and who require an individually designed wheelchair. Medicaid will also consider requests for fee-for-service reimbursement for other DME for nursing facility residents if it meets this definition for customization.

When a HCPCS code is not available for a component the provider may use the appropriate miscellaneous HCPCS code and indicate the complete name of the manufacturer, serial/product number, a detailed description of the components, and the cost for each component. A CMN without this breakdown will be returned to the provider for correction.

Section 3.4 of the IPPM Chapter entitled "Authorization for Specialized Wheelchairs" states in pertinent part:

3.4  Durable Medical Equipment

Authorization for Specialized Wheelchairs

When requesting prior authorization for specialized/custom wheelchairs, the DME supplier must indicate specific HCPCS codes for the wheelchair and each component. This information must be listed on the CMN or on an attachment.

After the CMN for a specialized custom wheelchair is reviewed and approved, prior authorization will be given under HCPCS Code E1220 so the equipment may be billed as a one line item. When billing, the provider must use code El 220 and indicate the total cost of the specialized/custom wheelchair.

VI.

The wheelchair requested for Kay Sherlock is defined as non-customized durable medical equipment under the precise language of the IPPM Chapter entitled "Institutional Policy Manual" § 3.4 Durable Medical Equipment. Consequently, MCC is expected to pay for such equipment out of the nursing facility per diem rate provided to it for Kay.

Under that section, nursing facilities are expected to provide wheelchairs of varied types including reclining types, as well as provide "non-permanent wheelchair accessories that can be added and removed according to the client's medical need(s), including, but not limited to: adjustable arm rests, . . . anti-tipping devices, seats, seat belts, leg rests, and positioning devices." Id. All of these were ordered for Kay's chair here. Under this policy, the molded back cannot be paid for in a lump-sum because "Medicaid will not provide fee-for-service reimbursement for accessories . . . for facility-owned durable medical equipment, including wheelchairs. " Id. Ms. Davis' testimony shows that Kay's wheelchair will be owned by MCC.

More importantly, however, the molded back can be considered a positioning device which the IPPM defines as a non-custom accessory, because it can be removed and the wheelchair can then be used by another. The testimony here shows that the foam back can be removed and replaced with a regular back (or another foam back if needed).

On the other hand, IPPM Chapter entitled "Authorization for Specialized Wheelchairs" § 3.4 Durable Medical Equipment does not stand for the proposition that because a chair has HCPC codes, it is customized, as the Appellant suggests. Under the applicable Delaware Institutional Provider Policy Manual, the use of HCPC codes is not determinative of the issue of wheelchair customization.

Moreover, Appellant's contention that customization can be shown by a reasonable expectation that Ms. Sherlock will use the chair for its usable life is not accurate. Such an expectation is not determinative of the issue of customization. The issue is "can" someone else be able to use it, not "will" someone else be able to use it. If a reasonable expectation of solo use were the standard for customization, an off-the-rack chair is customized when there is a reasonable expectation that someone else will be using it for its useful life. That is clearly not what is expressed in the Delaware provider policy. That policy and "Medicaid consider[ ] durable medical equipment to be customized if it is medically necessary that the device be designed so that only the individual client can use it." IPPM Chapter entitled "Institutional Policy Manual" § 3.4 Durable Medical Equipment.

The controlling standards are set forth in the Delaware Provider Policy Manual Regulation § 3.4 concerning Durable Medical Equipment. As a result, under that policy there is substantial evidence on the record that the wheelchair requisitioned for Kay Sherlock, as described and set forth by the testimony of the witnesses and described within the Exhibits admitted in the hearing, is non-customized, and is composed of non-permanent accessories that can be added or removed according to Kay's, or someone else's, medical needs.

VII.

WHEREFORE, the decision of Diamond State Partners/DMMA is AFFIRMED.

Date: September 2, 2006

MARY F. HIGGINS
HEARING OFFICER

THE FOREGOING IS THE FINAL DECISION OF THE DIVISION OF MEDICAID & MEDICAL ASSISTANCE.

cc: Laura J. Waterland, Esq., Appellant
Gregory E. Smith, Esq., Appellee

EXHIBITS

STATE'S EXHIBITS

  • State's Exhibit # 1 (one page) is a script issued by Kay Sherlock's physician for a new manual tilting wheelchair.
  • State's Exhibit # 2 (two pages) is a copy of a Letter of Medical Necessity/Patient Evaluation by Dr. McConnell.
  • State's Exhibit # 3 (two pages) is a Certificate of Medical Necessity dated 10/5/05
  • State's Exhibit #4 (one page) is Appendix B – Medicaid Certificate of Medical Necessity dated 6/22/05
  • State's Exhibit #5 (two pages) is a copy Delaware's Long Term Care Institutional Guidelines for Durable Medical Equipment (Section 3.4)

APPELLANT'S EXHIBITS

  • Appellant's Exhibit #1 (five pages) consists of a Letter of Medical Necessity dated 1/24/06 signed by Mary Ann Davis, MSPT and a letter from DHSS signed by Glyne Williams to the Mary Campbell Center, Inc.
  • Appellant's Exhibit #2 (one page) is an unsigned Letter of Medical Necessity dated 10/27/06 from Dr. McConnell requesting an appeal.
  • Appellant's Exhibit #3 (two pages) consists of a letter from Anthony J. Brazen III, D.O. outlining a denial of request for wheelchair.
  • Appellant's Exhibit #4 (two pages) consists of a quotation breakdown from National Seating Mobility, Inc. for the wheelchair for Kay Sherlock.
  • Appellant's Exhibit #6 (one page) is a copy of a typical personal schedule for Kay Sherlock.
  • Appellant's Exhibit #7 (one page) consists of a copy of Kay Sherlock's individual program plan ("IPP")

APPELLANT'S WITHDRAWN EXHIBITS

  • Exhibit #5 Withdrawn by Appellant (one page) consists of a list of activities Kay Sherlock attended in 2006.
  • Exhibit #8 Withdrawn by Appellant (one page) is a Physical Therapy Progress Note dated 4/15/06.


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