BAYONNE, NJ – Sometime in the recent past, CMS had made a determination that it would only provide physically disabled beneficiaries with sufficient ambulatory equipment to enable the performance of the so-called “MRADL” or the “Mobility Related Activities of Daily Living.”

This had been defined as: bathing, dressing, grooming, toileting, preparing meals and generally being able to move from one part of the residence to another. If the beneficiary needed to leave home to get food, see a doctor, work part time or attend religious services, they were left to the mercy of inconsistent state programs to provide any additional assistance. This so-called “in-home” rule has governed Medicare decision making for several decades, yet strangely, its legality has never been questioned. Perhaps it is time for a closer look.   

In my opinion, the in-home rule could be ruled discriminatory because it empowers HHS to arbitrarily restrict the freedoms and rights of disabled beneficiaries as guaranteed both by the Constitution and the ADA. There is no defensible reason for a federal judge to uphold the rule, because it only exists to save Medicare money by denying full medical benefits that would otherwise help restore full functionality and social equality to the disabled at a reasonable cost. This principle has been established through many court cases.

Here is a legal snapshot:
1) Among the Constitutional rights given to all citizens are: life, liberty, freedom to travel, vote, etc, and to seek court protection from abusive government actions that seek to infringe upon these freedoms  (due process of law). These rights were further expanded by the ADA (Americans with Disabilities Act) for disabled persons, to include all the day-to-day activities we take for granted, e.g. walking (or independent mobility), education, working, and so on.
2) The Medicare and Medicaid programs were enacted to first serve the best interests of the beneficiaries. All rule-making and program implementations must first consider the benefit or detriment to the patient, before any legislative goals are adopted and program modifications are implemented.
3) The accepted principal in approving claims within all government and private health insurance plans, is not simply to treat the medical condition, but to help restore the patient to the highest level of function that is reasonably possible, as determined by the treating practitioners. This principle has guided medical treatment decisions for many decades. It was reinforced by Olmstead vs L.C., which required that all disabled persons be brought to their highest level of function and reintegrated into the community to enjoy full social equality.
4) The patient has certain Constitutional rights that must be protected from abusive, negligent, incompetent and or ignorant administrative actions, and that could prove harmful to the beneficiary’s well-being or recovery. Such rights must be protected by a due process requirement, which cannot be suspended or precluded for the sake of advancing other economic or non-medical legislative goals.
5) The so-called “in-home rule” fails to conform to the above principles because:
a) It is not in the best interest of the patient and only exists to provide a limited cost savings to the program.
b) It empowers executive branch administrators to deny or limit patients their physical freedom outside the home, without a due process remedy within the accessible and free administrative court system, thereby forcing costly Constitutional challenges that are usually beyond the means of chronically ill or disabled beneficiaries.
c) Limits the patient from achieving their highest level of functionality within society.
d) Denies beneficiaries equipment that would adequately support an economically productive lifestyle, or the ability to pursue an education.
e) Creates unhealthy social isolation that is conducive to creating additional mental stress, illness and depression. All of these contribute to a medically unacceptable outcome.
f) Violates the principles of social equality as promised in the Americans with Disabilities Act by relegating such beneficiaries to second class citizenship without all the rights to live as other citizens.

We must recognize that physically disabled citizens cannot be the pawns of arbitrary rule making by administrative bodies. All such rules must be subject to prior screening by a qualified, independent body of legal experts and citizens, to ensure that the principles outlined above are strictly followed.

Clearly the time has come to strike down the “in-home rule” and all other rules that promote the principle of parsimony above considerations for the rights of beneficiaries. A simple class action lawsuit filed by a citizen’s rights foundation would do the job.

Herb Paserman, a 30-year-veteran of the HME industry, is marketing manager at Jerrys Drug and Surgical, Bayonne, NJ. Paserman can be reached via e-mail: [email protected].