	Volume 15, No. 3, Fall 2007	Previous Issues Subscribe to AT Messenger Download PDF Viewer
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Cochlear Implants and Auditory AT: Must They Be Provided?

Dan Atkins, Legal Advocacy Director
Disabilities Law Program

Hearing aids, assistive technology amplifying sound, are commonplace and do not elicit much controversy. Since their inception in 1978, cochlear implants, however, have been lightning rods for contentiousness in the Deaf community. Cochlear implants are electronic devices which, when implanted under the skin on the skull, convert sound waves into digital signals, which can then be understood by the brain as speech. With the implant, sound is transmitted past the damaged cochlea to the brain. While the implants do not "cure" deafness (in fact the implants often destroy what remaining hearing an individual may have), they do offer users the potential to develop language based on spoken communication. Thus, it has been considered by some in the Deaf community to be a rejection of deafness, its culture, and its unique language-American Sign Language. Gradually, however, the implants have become an accepted form of assistive technology for some children and adults with recent profound hearing loss but who have intact auditory nerves. More than 35,000 people in the United States have received them, and the number is increasing by about 30 percent each year.

Medicaid Coverage

Cochlear implants are prohibitively expensive-they can cost between $50,000 and $60,000. Post- operative costs, like programming of the device and frequent follow-up appointments, especially when medical complications arise, can equal the cost of the procedure. As a result, the government effectively depresses the demand-at least for the 80 million people who rely on Medicaid and Medicare for health insurance-in a few ways. First, the Centers for Medicare and Medicaid Services (CMS) practically ensures that adults who are poor will not be able to afford an implant by setting its reimbursement level to hospitals at about $20,000. Despite federal regulations that require Medicaid providers to accept Medicaid payment as payment in full, most hospitals circumvent the regulation by simply refusing to conduct the procedure at all. Second, Medicaid is a federal-state partnership, with the federal government setting broad parameters, but at the same time leaving states with significant discretion to tailor their packages to meet what states perceive to be the needs of their residents. Curiously, Delaware remains one of the few states not to cover cochlear implants for adults on Medicaid. However, it remains to be seen whether Delaware's exclusion could withstand legal challenge. If a beneficiary could show that the procedure is medically necessary, and could be fit within a category of covered services, perhaps Delaware could be compelled to provide the procedure (case by case administrative challenges were successful in Arizona and Utah).

Children on Medicaid whose doctors prescribe a cochlear implant as necessary and most effective to alleviate their hearing loss should be eligible for one. The 1989 Early Periodic Screening Diagnosis and Treatment (EPSDT) Act requires that state Medicaid programs cover any services for children under the age of 21 that are necessary to correct or ameliorate defects or conditions whether or not they are specifically covered under the State plan. Nevertheless, the same dilemma that confronts poor adults plagues poor children: with reimbursement rates not coming close to the cost of the procedure, finding hospitals and doctors to perform the work at the CMS rate is very difficult. As a result, while 45,000 children in the United States are eligible for the procedure, only about 10,000 have received it.

Medicare Coverage

Medicare is purely a federally operated health insurance program for 39 million Americans, primarily over 65, though over 10 percent of beneficiaries qualify based on disability rather than age. Medicare regulations consider cochlear implants as prosthetic devices-a coverable benefit. Until 2005, only beneficiaries with profound hearing loss were eligible to receive implants. Regulations have expanded eligibility to include moderate hearing loss. However, reimbursement caps limit the availability of the procedure.

Private Insurance

For those fortunate individuals with private insurance, there are varying degrees of luck. Some insurance companies cover the procedures and some do not. Typically, commercial health plans like Blue Cross and Aetna are more likely to cover it, while managed care plans are not so generous. How "necessary" is a cochlear implant? It is hard to argue that it is a life saving procedure, and so the insurance industry may not view it as "necessary." Nevertheless, private insurance beneficiaries should look carefully at their benefits package for the following:

Most health plans include benefits covering the diagnosis of a disease or illness, so the assessment and evaluation of the hearing loss may be covered.
Some benefits plans will explicitly cover or exclude cochlear implants. Some plans which include "prosthetics" may cover the implants.
Most plans will cover surgical procedures-in-patient and out-patient.
4) Post-operative audiology services should be considered rehabilitation, treatment, or therapy, though reimbursement may be capped.

Legislative Initiatives

Given the data supporting the safety and efficacy of hearing aids and cochlear implants, one wonders why states are not requiring insurance companies and state Medicaid programs to cover the assistive technology. The answer is that states are trying, incrementally at least. Connecticut, Kentucky, Louisiana, Maryland, Minnesota, Missouri and Oklahoma require that health benefit plans in their state pay for hearing aids for children. There are differences among these states with regard to the ages covered, amount of coverage, and hearing loss eligibility. Rhode Island requires the coverage for children and adults. Presumably because of cost, and effective lobbying by insurance companies, laws requiring coverage for cochlear implants have not been successful. In 2007, a Rhode Island state legislator, Robert B. Jacquard, proposed legislation requiring health insurance providers to provide coverage for cochlear implant surgery. It has not yet been voted upon.

Until Medicaid reimbursements are increased to reflect the actual cost of the procedure, children and adults who are poor and deaf will not in any meaningful numbers have access to cochlear implants. Until state legislation requires health insurance plans to cover the procedures, only the richest among us will be able to benefit. The French writer and social critic, Anatole France, once noted "[T]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread" (The Red Lily, 1894). With Medicaid and Medicare funding of cochlear implants falling thousands of dollars short of the cost of surgery, advocates for the deaf and hard of hearing surely can appreciate the intended irony of France's quotation all too well.

If a doctor has prescribed a hearing aid, cochlear implant, or other assistive technology and your health insurance provider has denied coverage to you or your child, please consider contacting the Disabilities Law Program (DLP) at the Community Legal Aid Society. The DLP has an office in each county in Delaware, and has attorneys and paralegals available to provide legal representation, advice, and referrals where appropriate. DLP services are available free of charge to Delaware residents with disabilities.