2. Medicaid

3. Insurance and Health Benefits Plans Database

4. Federal Employee Health Benefits Plan

5. Department of Veterans Affairs

6. Tricare

7. Special Education

8. Early Intervention

9. Vocational Rehabilitation

10. Telecommunications Equipment Distribution Programs

2. Medicaid

Coming soon...

3. Insurance and Health Benefits Plans Database

In 2003, the ATLC asked 5 SGD manufacturers [Assistive Technology; Dynavox; Enkidu; Prenke Romich; Words Plus] to produce a list of the insurance companies and health benefits plans that had approved and paid for their products.  The manufacturers were asked to generate this list any way available to them, e.g., through computerized customer records or hand review of their files – whatever procedure they were willing to follow. 

Each of the companies responded with some information.  Assistive Technology and PRC also have been sending updated reports, but the other companies have not. 

The Insurance and Health Benefits Plans Data Base contains the information reported.  The data base states the names of more than 1100 insurers and health benefits plans that have approved SGDs.  In addition, the data base lists how many times the manufacturers reported each insurer and health plan approved a device. 

This data base is admittedly incomplete.  Data was not sought from every SGD manufacturer.  The data provided by the companies spans only a few years, from the mid-to-late 1990s to 2003, but insurance funding for SGDs extends back to the late 1970s.  Also, insurance and health plan funding for SGDs extends to the present, and in general, it is expanding in scope, but only 2 companies are reporting their ongoing approval data.  Finally, no effort was made to control the completeness of the various searches. 

Admitting these limitations in no way detracts from the value of the data base.  It always was intended as an advocacy tool, not as scientific research.  And, as an advocacy tool, the data base is extremely valuable. 

That the data base is incomplete is itself of value: it supports the conclusion that both the total number of insurers and health benefits plans that approved SGDs and the total number of approved devices is larger, perhaps substantially larger.  

In addition, as a practical matter, the presence of an insurer or plan on this list is more valuable than the total number of companies or devices listed.  Specifically, insurers and health plans on the list will have obligations that must be honored before any SGD funding request can be decided.  Failing to honor these obligations will have procedural and may have substantive consequences.  Procedurally, failing to honor these obligations will preclude the denial of an SGD funding request.  Substantively, the information generated by fulfilling these obligations may make it impossible for the insurer or plan to deny the SGD funding request.

General Importance of the Extent of Insurance SGD Funding

Knowledge about the extent of insurer and health plan funding for SGDs can have many uses.  These data support conclusions that SGD coverage by insurers and health plans is extensive; that SGD funding by insurers and plans is appropriately viewed as “the rule;” and that non-coverage is “the exception” and most often, is not justified.  These conclusions support an expectation that an SLP’s SGD recommendation will lead to device access.  They also are important as general information to insurers and health plans that are considering SGD funding requests for the first time. 

This knowledge already has paid dividends.  In the 1990s, PRC maintained a list of insurance coverage of its SGDs.  The total number of insurers from that list was cited routinely in court pleadings filed to force expansion of Medicaid program SGD coverage.  In addition to data about the extent of SGD coverage by other Medicaid programs, the insurer total was offered to show that there was widespread acceptance of SGDs by other funding programs as well. In Myers v. State of Mississippi, 3:94 CV 185 LN (S.D.Miss. 1995), the District Court expressly referred to these data when it rejected Mississippi Medicaid’s refusal to cover SGDs – based on its claim that SGDs were not ‘medically necessary.’

Though this fact is certainly not controlling, the court does find it instructive that forty other Medicaid programs do pay for AAC devices, i.e., finds them medically necessary [reference omitted]... Moreover, over 200 health insurance providers pay for AAC devices. [reference omitted].

Slip Op. at 12.

Importance of the Extent of Insurance SGD Funding to Individual SGD Funding Requests & Appeals

Knowledge of past insurer and plan SGD approvals also is a valuable asset in individual funding requests and appeals.  It becomes one of the four pillars supporting current SGD funding requests and appeals.  The other three are:

Ø                  the legal duty of insurers and health plans to investigate the facts of funding claims;

Both insurers and health plans have legal duties to investigate the facts and the proper interpretation of key criteria related to a claim for benefits.  For policies, the duty to investigate will arise under state common-law, state statute or regulation, or it may be an express provision of the policy.  See 14 Couch on Insurance (3d Ed) § 198:27 (2005).  For health benefits plans, the duty to investigate is a central element of a plan administrator’s fiduciary duty to act as would a “prudent person” under the circumstances.  29 U.S.C. § 1104(a)(1)(B).  A leading treatise on health benefits plans describes this duty as follows: Prudence focuses on the process that the fiduciary undertakes in reaching a decision.  That is, prudence is a test of conduct and procedure, not results. . . . [A] fiduciary’s duty to investigate is a key facet of prudence . . . . Jorden, Phlepsen, & Goldberg, ERISA Litigation  (2d Ed.) § 3.03[A], at p. 3-58-59 (2004). 

Ø                  the legal rule that policy or plan vocabulary must be given reasonable or non-arbitrary and capricious interpretations;

A general rule of insurance interpretation is that when terms are subject to multiple possible interpretations, i.e., they are “ambiguous.” See generally B. Ostrager & T. Newman, Handbook of Insurance Coverage Disputes, § 1.02 at p. 9 (9^th Ed 1998)(“An ambiguity exists when a word or phrase is reasonably susceptible to more than one construction.”).  A second general rule of insurance policy interpretation is that any reasonable interpretation of the policy language that supports coverage will be controlling of the outcome.  The leading treatise on insurance law states:  The words, “the contract is to be construed against the insurer” comprise the most familiar expression in the reports of insurance cases. It purports to be an application of the rule contra proferentem.[footnote omitted] If an insurer uses language that is uncertain, any reasonable doubt will be resolved against it; if the doubt relates to extent or fact of coverage, whether as to peril insured against, the amount of liability, or the person or persons protected, the language will be understood in its most inclusive sense, for the insured's benefit.2 Couch on Insurance (3d Ed.), § 22:14

 Ø                  the legal conclusion that different interpretations of the same facts at different times is “capricious.”

If no objective basis for the difference in conclusion exists, the decision on a current request will represent merely an arbitrary or capricious decision, based on personal opinion of the decision makers. In general, this is a paradigm of capricious action. See Lefrak Forest Hills Corp.  v. Galvin, 40 A.D.2d 211, 388 N.Y.S.2d 932,937 (2d Dept. 1972) affirmed, 32 N.Y.2d 796, 345 N.Y.S.2d 547, cert. denied, 414 U.S. 1004 (1973); Mayer v. Wing, 922 F.Supp. 902, 911(S.D.N.Y. 1996).

Knowledge of past SGD approvals, plus these legal rules help current SGD funding requests in the following way: 

Ø                  Whenever a funding request is received, the insurer and plan has a duty to investigate to see if it should be approved.  A complete investigation must be done to honor this obligation.  Specifically, the insurer or plan should be searching to see if an SGD “fits” within the language of this policy or plan.   This determination should be based on how the policy or plan terms have been interpreted before, if this is knowable, and not just on the basis of personal opinion of the insurer or plan reviewer. 

Ø                  Where to look?  Why not start with the earlier decisions approving SGDs made by the same insurer or plan?  If the terms are the same, then the result should be the same: approve the device. 

Ø                  For insurers, its own interpretation of the same terms will constitute a “reasonable interpretation” of those terms, and as a matter of law, a reasonable interpretation supporting coverage must control.  For a plan, looking at the same terms on two separate days and reaching opposite conclusions is the definition of arbitrary and capricious action.

In other words, the data base supplies a starting point for an insurer or plan to investigate current SGD funding requests. In particular, to justify a denial, the decision maker should be required to explain how each earlier favorable decision is based on a scope of coverage different from the current policy or plan.  Moreover, the decision maker should be required to explain not only that there is some difference in scope of coverage, but that the difference is so significant as to justify a “yes” to the earlier request, but that a “no” is appropriate now. 

Procedurally, insurers and plans are unlikely to engage in this type of factual investigation when they make their initial determination.  For this reason, every denial issued by an insurer or plan listed in the data base should be appealed, and specific reference to the existence of earlier SGD approvals should be noted. 

If the insurer or plan issues a new decision and again fails to explain how these earlier approvals are based on substantially different coverage criteria, this denial should be appealed again, and again, until it is set aside.  In short, if the insurer or plan is listed on the data base, absent specific reference to and explanation of past decision making, a denial decision is fatally flawed. 

No insurer or plan can say these earlier decisions are not important.  They may point to their freedom to use unique language in every policy or plan.  That it true, but what matters is what these policy or plan documents did say, not what they could say. Only by looking at past policies and plan documents can it be determined whether the same or different language was used.  And, to the extent the language used is the same, how will insurers or plans argue that their own prior interpretations are not reasonable, or that contradicting them now is not arbitrary? 

Together, facts about earlier SGD approvals and these legal rules create a presumption that a current SGD funding request or appeal should be approved.  The insurer or plan can rebut this presumption, but only by producing information to show there is a significant difference between the way the benefits were described in the current policy or plan and those earlier cases.  Also, the greater the number of earlier SGD approvals, the stronger the presumption applicable to the current claim.  The greater the number of earlier approvals, the greater the likelihood that one or more were based on the same coverage vocabulary as is used in the current claim.  Because the insurer or plan already interpreted that vocabulary to support coverage, to not do so again, is not reasonable and instead, is arbitrary and capricious.  Armed with these data, what is past, is prologue.

The Insurance & Health Plan SGD Approval Database

The database is a table with two columns.  One lists the names of insurers and health plans; the other identifies the number of SGD approvals reported by the manufacturers.

How to Use the Insurance & Health Plan SGD Approvals Database

SLPs, families, funding staff of SGD manufacturers and suppliers, funding staff at government programs such as Medicaid, and advocates all should examine the data base.  Whenever a client has insurance or a health benefits plan as the primary funding source, the presence of an insurer’s or plan’s name on the data base means it has paid for an SGD before, and a presumption should be created that it should approve the current request.  If the insurer or plan already has said no to funding request, its presence on the data base provides grounds for appeal. 

Insurers and health benefits plans are listed alphabetically.  The names of the insurers are printed as they were reported by the manufacturers.  Search to match the current insurer or plan against the database list.  Care should be taken to consider all common spelling variations, and common variations on the names of the insurers.   

NOTE:  Insurers often act as plan administrators.  Whenever an insurer has this role, the Database should be searched for the insurer as well as for the plan.

If a match is found, the next step is to note how many SGD approvals are reported. 

For any one listing, this task is easy: the number printed to the right of the insurer or plan name represents the number of approvals reported.  However, some companies are listed multiple times, which may only reflect differences in the way the manufacturers reported the names to the ATLC.  For example, there is little doubt that “Aetna,” “Aetna Insurance,” and “Aetna US Healthcare” are the same insurer, or that “Cigna” and “Cigna Health Care” are the same insurer.  It is recommended, therefore, that all the policies and plans listed for a particular company be included in the total. 

Example:  Aetna has 19 distinct listings in the database, but it is reasonable to assume all these policies were issued by the same parent company, and as a result all the approvals for these 19 listings can be added together (214).  This total represents the number of earlier decisions Aetna must distinguish from the current policy or plan in order to justify a denial.  (If Aetna wishes to claim that not all of these approvals are appropriate for consideration, it is free to do so as part of a response.  Also, because the number of earlier approvals is so large, the likelihood the scope of benefits in the current policy or plan will match none of these earlier policies or plans is very small.  Thus, when Aetna is the insurer for a current client, the family, SLP and advocates should hold a strong presumption that an SGD funding request will be approved.)

NOTE: whenever earlier approvals are reported, the number should be described in correspondence as “at least ___ SGD approvals have been issued,” based on the incomplete nature of the database. 

Once a match is found, the insurer or plan should be put on notice, in writing, that this information is known, and that to justify denial of the current SGD funding request, the insurer or plan will have to investigate and explain the difference between the current request and every previous SGD approval. 

One way to insist that this investigation be conducted is to request the documents from those earlier decisions.  Producing these documents will permit an independent review.  Individuals who are insured, or who are health plan participants, should demand in writing that the insurer or plan produce all records related to earlier SGD approvals. In addition, these requests should seek production of the description of the scope of benefits, including the definition or characteristics of durable medical equipment in the policy or plan. 

Sample request for records from individual insured by policy: 

“Produce all records describing the scope of benefits, including the definition of, or characteristics of durable medical equipment, in all policies issued by ___________[name of insurer] and for all health benefits plans administered by __________ [name of insurer] in which an SGD has been approved.  Information in the Insurer & Health Plan SGD Approvals Database, posted at www.aacfundinghelp.com reveals that at least ___ earlier SGD approvals have been issued by ________ [name of insurer]. 

As part of your duty to conduct a good faith investigation of the facts surrounding my claim for SGD funding, please produce these data within 30 days of the date of this letter.  If you fail to produce the requested information, you must explain in writing the steps taken to conduct a reasonable search. You are on notice that the SGD manufacturers who supplied data to the Database can identify each individual for whom an earlier SGD approval was issued, and from that information, all relevant policy and plan terms can be located.  Once located, they can be compared against the comparable terms of my policy.  If the vocabulary used to describe the scope of benefits is the same, the result must be the same – the approval of my requested SGD.  Insurers are obligated to accept any reasonable interpretation supporting coverage.  Certainly your own earlier interpretations of the same terms or phrases will be deemed reasonable. 

If you claim the vocabulary describing the scope of benefits is different, your written report should explain why the differences are so significant that a different outcome is justified. 

In lieu of conducting the search and analysis stated above, or producing the records to permit independent analysis of the relevant terms, you may approve the requested SGD.”

Sample paragraph for participant in a health benefits plan or where an insurance company serves as plan administrator:

“Pursuant to 29 USC § 1104, and 29 CFR §§ 2560.503-1(b)(5); (j)(3); & (m)(8), within 30 calendar days of the date of this letter, produce, without charge, all records describing the scope of benefits, including the definition of, or characteristics of durable medical equipment, in all policies issued by ___________[name of plan or of insurer acting as plan administrator] and for all health benefits plans administered by __________ [name of plan or of insurer acting as plan administrator] in which an SGD has been approved.  Information in the Insurer & Health Plan SGD Approvals Database, posted at www.aacfundinghelp.com reveals that at least ___ earlier SGD approvals have been issued by ________ [name of plan or of insurer acting as plan administrator]. 

As part of your fiduciary duty, you must conduct a complete investigation of the facts surrounding my claim for SGD funding.  You are on notice that the SGD manufacturers who supplied data to the Database can identify each individual for whom an earlier SGD approval was issued, and from that information, all relevant policy and plan terms can be located.  Once located, they can be compared against the comparable terms of my plan.  If the vocabulary is the same, the result must be the same – the approval of my requested SGD.  Different interpretations of the same terms on different days is arbitrary and a violation of ERISA.  Even if the vocabulary is different, you must explain why the differences are so significant that a different outcome is justified.

In lieu of conducting the search and analysis stated above, or producing the records to permit independent analysis of the relevant terms, you may approve the requested SGD.”

Go to Insurer and Health Plan SGD Database

How to use the Insurer & Health Plan SGD Approvals Database

4. Federal Employee Health Benefits Plan

Coming soon...

5. Department of Veterans Affairs

Coming soon...

6. Tricare

Tricare Coverage of AAC Devices

The Tricare program, formerly known as CHAMPUS, is a publicly funded health benefits program established for dependents of active duty military personnel and military retirees and their dependents.

The Tricare program has covered AAC devices for many years. Until the end of 2001, however, Tricare/CHAMPUS AAC device coverage had been limited to the dependents of active duty military personnel. The military retirees and their dependents were not able to get Tricare/CHAMPUS funded AAC devices.

This coverage limitation has now been eliminated. On December 28, 2001, President Bush signed the FY 2002 military reauthorization bill, which includes Tricare reforms.  In one of those reform provisions, Congress authorizes Tricare to cover AAC devices as a prosthetic device. 

Prosthetic devices are a Tricare benefit that is available to all enrollees. Specifically, Pub. L. No. 107-107, Section 702(2) (2001), amends the Tricare scope of prosthetic device coverage. 10 U.S.C. Section 1077(a)(15). The statutory amendment states, simply and clearly:

An augmentative communication device may be provided as a voice prosthesis under subsection (a)(15).

After this statutory change was enacted, advocates sought to persuade Tricare administrators to adopt SGD coverage criteria as soon as possible. Letter dated March 20, 2002 to Peter Thomas, Esq., from Lewis Golinker (describing proposal to Tricare to adopt Medicare SGD Coverage Criteria); Letter dated April 17, 2003 to Ms. Ann Fazzini; Letter dated June 13, 2003 to Tricare Management Authority.

Tricare's SGD coverage criteria mirror the Medicare national coverage decision for SGDs. These criteria became effective on April 1, 2005. Tricare Policy Manual Table of Contents (TPO2) and SGD Coverage Policy (TP02 Chapter 7); Tricare Policy Manual, Chapter 7, Section 23.1.

For an unknown reason, Tricare suspended these criteria during the summer of 2005 and then made them effective again on September 1, 2005. Change 26 (June 13, 2005) from Office of the Assistant Secretary of Defense, Health Affairs. These criteria were not changed in any way and they remain in effect today.

7. Special Education

Coming soon...

8. Early Intervention

Coming soon...

9. Vocational Rehabilitation

Coming soon...

10. Telecommunication Equipment Distribution Programs

Coming soon...

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