[Congressional Record Volume 152, Number 93 (Monday, July 17, 2006)]
[Senate]
[Pages S7631-S7632]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BINGAMAN (for himself, Mr. Santorum, Mrs. Murray, Mr. 
        Akaka, Mr. Jeffords, Mr. Kerry, Mr. Harkin, and Mr. Lieberman):
  S. 3677. A bill to amend title XVIII on the Social Security Act to 
eliminate the in the home restriction for Medicare coverage of mobility 
devices for individuals with expected long-term needs; to the Committee 
on Finance.
  Mr. BINGAMAN. Mr. President, I rise today to introduce the Medicare 
Independent Living Act of 2006 with Senators Santorum, Murray, Collins, 
Akaka, Jeffords, Kerry, Harkin, Kennedy, and Lieberman. This 
legislation would eliminate Medicare's ``in the home'' restriction for 
the coverage of mobility devices, including wheelchairs and scooters, 
for those with disabilities and expected long-term needs. This includes 
people with multiple sclerosis, paraglegia, osteoarthritis, and 
cerebrovascular disease that includes acute stroke and conditions like 
aneurysms.
  As currently interpreted by the Centers for Medicare and Medicaid 
Services, CMS, the ``in the home'' restriction prevents beneficiaries 
from obtaining wheelchairs that are necessary for use outside the home. 
This precludes beneficiaries who need a wheelchair to access work, the 
community at-large, his or her place of worship, school, physician's 
offices, or pharmacies.
  On July 13, 2005, 34 senators wrote Secretary Leavitt asking the 
Department of Health and Human Services, or HHS, to modify the ``in the 
home'' requirement so as to ``improve community access for Medicare 
beneficiaries with mobility impairments.''
  Unfortunately, CMS continues to impose the ``in the home'' 
restriction on Medicare beneficiaries in need of mobility devices. The 
result is that people who may not need a wheelchair to get around their 
house but do need one to get around their communities, such as to a 
job, church, or the grocery store, can't get Medicare to pay for one. 
As the Medicare Rights Center in a report entitled ``Forced Isolation: 
Medicare's `In The home' Coverage Standards for Wheelchairs'' in March 
2004 notes, ``This effectively disqualifies you from leaving your home 
without the assistance of others.''
  Furthermore, in a Kansas City Star article dated July 3, 2005, Mike 
Oxford with the National Council on Independent Living noted, ``You 
look at mobility assistance as a way to liberate yourself.'' He added 
that the restriction ``is just backward.''
  In fact, policies such as these are not only backward but directly 
contradict numerous initiatives aimed at increasing community 
integration of people with disabilities, including the Americans with 
Disabilities Act, the Ticket-to-Work Program, the New Freedom 
Initiative, and the Olmstead Supreme Court decision.
  According to the Medicare Rights Center update dated March 23, 2006, 
``This results in arbitrary denials. People with apartments too small 
for a power wheelchair are denied a device that could also get them 
down the street. Those in more spacious quarters get coverage, allowing 
them to scoot from room to room and to the grocery store. People who 
summon all their willpower and strength to hobble around a small 
apartment get no help for talks that are beyond them and their front 
door.''
  In New Mexico, I have heard this complaint about the law repeatedly 
from our State's most vulnerable disabled and senior citizens. People 
argue the provision is being misinterpreted by the administration and 
results in Medicare beneficiaries being trapped in their home.
  The ITEM Coalition adds in a letter to CMS on this issue in November 
25, 2005, ``There continues to be no clinical basis for the `in the 
home' restriction and by asking treating practioners to document 
medical need only within the home setting, CMS is severely restricting 
patients from receiving the most appropriate devices to meet their 
mobility needs.''
  Therefore, our bipartisan legislation would clarify that this 
restriction does not apply to mobility devices, including wheelchairs, 
for people with disabilities in the Medicare Program. The language 
change is fairly simple and simply clarifies that the ``in the home'' 
restriction for durable medical equipment does not apply in the case of 
mobility devices needed by Medicare beneficiaries with expected long-
term needs for use ``in customary settings such as normal domestic, 
vocational, and community activities.''
  This legislation is certainly not intended to discourage CMS from 
dedicating its resources to reducing waste, fraud, and abuse in the 
Medicare system, as those efforts are critical to ensuring that 
Medicare remains financially viable and strong in the future. However, 
it should be noted that neither Medicaid nor the Department of Veterans 
Affairs impose such ``in the home'' restrictions on mobility devices. 
As Senator Brownback said to the Kansas City Star, it is important to 
lift the restriction ``to reflect our goal of ensuring that Americans 
with disabilities are able to live independent, healthy, and productive 
lives.''
  I thank Senators Santorum, Murray, Collins, Akaka, Jeffords, Kerry, 
Harkin, Kennedy, and Lieberman for cosponsoring this important 
legislation, and attached is a fact sheet that I request to be printed 
in the Record. I would also ask unanimous consent to have printed in 
the Record copies of the letter to the administration and the response 
that was received by Capitol Hill.
  There being no objection, the additional material was ordered to be 
printed in the Record, as follows:

                                                  U.S. Senate,

                                    Washington, DC, July 13, 2005.
     Re reconsideration of the Medicare ``In the Home'' 
         requirement on wheelchair coverage.

     Hon. Michael O. Leavitt,
     Secretary, Department of Health and Human Services, 
         Washington, DC.
       Dear Secretary Leavitt: The undersigned members write to 
     request that you modify the ``in the home'' requirement in 
     Medicare's wheeled mobility benefit to improve community 
     access for Medicare beneficiaries with mobility impairments.
       We commend CMS for its dedication to reducing waste, fraud 
     and abuse in the Medicare system, particularly under the 
     mobility device benefit, and fully support your intention to 
     protect precious Medicare funds and resources. Additionally, 
     we commend the agency for recently taking on the task of 
     creating a new and, hopefully, more appropriate Medicare 
     coverage criteria for mobility devices. However, we are 
     concerned that CMS' current interpretation of the ``in the 
     home'' requirement may continue to act as an inappropriate 
     restriction in meeting the real-life mobility needs of 
     Medicare beneficiaries with physical disabilities and 
     mobility impairments.
       Recently CMS announced a final National Coverage 
     Determination (NCD) for mobility assistance equipment (MAE) 
     that fails to adequately address the concerns of 
     beneficiaries and other parties with the ``in the home'' 
     restriction.
       In order to ensure that the ``in the home'' requirement 
     does not act as a barrier to community participation for 
     Medicare beneficiaries with disabilities and mobility 
     impairments; we ask that you modify this requirement through 
     the regulatory process. Additionally, if your agency 
     concludes that the ``in the home'' requirement cannot be 
     addressed through the regulatory process, we request that you 
     respond with such information as quickly as possible, so that 
     Congress may begin examining legislative alternatives.

[[Page S7632]]

       We thank you for your consideration of this matter.
           Sincerely,
         Jeff Bingaman, Rick Santorum, John Kerry, Joseph I. 
           Lieberman, Barbara Mikulski, Maria Cantwell, Edward M. 
           Kennedy, Patty Murray, Evan Bayh, Mark Dayton, Jack 
           Reed, Johnny Isakson, Sam Brownback, Jon S. Corzine, 
           James M. Talent, Pat Roberts, Frank Lautenberg.
         James M. Jeffords, Christopher S. Bond, Mike DeWine, 
           Daniel K. Akaka, Mary L. Landrieu, Debbie Stabenow, 
           Charles E. Schumer, Ron Wyden, Herb Kohl, Patrick J. 
           Leahy, Arlen Specter, Hillary Rodham Clinton, 
           Christopher J. Dodd, John McCain, Carl Levin, Tom 
           Harkin, Olympia J. Snowe.
                                  ____

                                                  The Secretary of


                                    Health and Human Services,

                                 Washington, DC, October 25, 2005.
     Hon. Charles F. Bass,
     House of Representatives,
     Washington, DC.
       Dear Mr. Bass: Thank you for your letter regarding the ``in 
     the home'' requirement for Mobility Assistive Equipment 
     (MAE).
       The Centers for Medicare & Medicaid Services (CMS) is 
     required to follow section 1861(n) of the Social Security Act 
     (the Act) which states ``the term `durable medical equipment' 
     includes iron lungs, oxygen tents, hospital beds, and 
     wheelchairs (which may include a power-operated vehicle that 
     may be appropriately used as a wheelchair, but only where the 
     use of such a vehicle is determined to be necessary on the 
     basis of the individual's medical and physical condition and 
     the vehicle meets such safety requirements as the Secretary 
     may prescribe) used in the patient's home (including an 
     institution used as his home other than an institution that 
     meets the requirements of subsection (e)(1) of this section 
     or section 1819(a)(1)), whether furnished on a rental basis 
     or purchased. . . .'' CMS further defined the durable medical 
     equipment (DME) benefit category at 42 CFR section 414.202 to 
     include equipment that can (a) withstand repeated use, (b) is 
     primarily and customarily used to serve a medical purpose, 
     (c) is not generally useful in the absence of illness or 
     injury, and (d) is appropriate for use in the home.
       There are two practical requirements that must be satisfied 
     for coverage of DME which are a logical resu1t of the 
     definition of DME:
       (1) The equipment must be appropriate for use in the home. 
     This requirement excludes a gasoline-powered vehicle, for 
     example.
       (2) The patient must have a need to use the equipment in 
     the home. This requirement excludes equipment that is only 
     necessary for use outside the patient's home.
       Therefore, we do not cover equipment if it is exclusively 
     needed outside of the home. However, if DME is needed in the 
     home and the beneficiary also uses it outside the home, the 
     equipment would still be covered. For example, a high 
     strength wheelchair may be covered when appropriate for home 
     use even though it may also be useful outside the home. We do 
     not have any restrictions on the use of the equipment outside 
     of the home as long as there is also a need to use it in the 
     home.
       I hope this information has been helpful. Please call me if 
     you have any further thoughts or questions. I will also 
     provide this response to the cosigners of your letter.
           Sincerely,
     Michael O. Leavitt.

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