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12/19/2006 12:00:00 AM

Lawsuit Regarding Access to DME for Dual Eligible Consumers

Subject: Lawsuit Regarding Access to DME for Dual Eligible Consumers


 For further information, contact: Judi Gerson, Vice President, Policy & Program Services

The Neighborhood Legal Services (NLS) / Assistive Technology Advocacy Project has filed a lawsuit against the NYS Department of Health (DOH) on behalf of Medicaid / Medicare dual eligible consumers as a result of their inability to access the Medicaid prior approval process for Durable Medical Equipment (DME). Currently, Medicaid requires that an application, denial and appeal first proceed through Medicare, even when it is known that Medicare will not approve the equipment. The Medicare process also requires the vendor to deliver the equipment first, without any guarantee of payment from either Medicare or Medicaid. As a result, many dually eligible individuals have been unable to get the equipment they need.

As you know, CP of NYS has been concerned about this issue for many years, and despite numerous attempts to resolve the problem with DOH, including through the recently formed DME Work Group, no substantial progress has been made.

The lawsuit, Price & Turner vs. Novello, currently has two named plaintiffs and additional plaintiffs are likely to be added. NLS has arranged with the Attorney General’s office for DOH to allow the prior approval process to go forward for the two named plaintiffs, and it is also possible the potential plaintiffs may be able to access the prior approval process as well.

This lawsuit has the potential to resolve the long-standing problem by requiring DOH to proceed with the prior approval process for all dual eligible consumers and the more individuals that can be identified as benefiting from the outcome, the better its chances of success.  If you are aware of consumers experiencing the same difficulty who may want to be included in the lawsuit, or be considered potential plaintiffs, you can contact Jessica Abbott at Neighborhood Legal Services, 1-716-847-0655, extension 228.

Please also let me know if you are referring any individuals to NLS as potential plaintiffs. Thank you.

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