Medicare coverage of
and low vision devices
The Medicare Statute Excludes Coverage of "Routine" Eyeglasses
When Congress established the Medicare program in 1965 it excluded coverage of certain items and services it believed were routinely needed and low in cost. Such excluded items included physical examinations, drugs, hearing aids, dental services, and eyeglasses. The statute still excludes payment for most eyeglasses, in the following language:
where such expenses are for routine physical checkups, eyeglasses (other than eyewear described in section 1861(s)(8)) or eye examinations for the purpose of prescribing, fitting, or changing eyeglasses, procedures performed (during the course of any eye examinations) to determine the refractive state of the eyes, hearing aids or examinations therefore, or immunizations (except as otherwise allowed under section 1861(s)(10) and subparagraph (B), (F), (G), (H), or (K) of paragraph (1)).
The exception to the eyeglass exclusion mentioned here is for "prosthetic devices . . . including one pair of conventional eyeglasses or contact lenses furnished subsequent to each cataract surgery with insertion of an intraocular lens."
The Medicare regulations parrot the limitations on coverage of eyeglasses in the Medicare statute.
The Centers for Medicare & Medicaid Services (CMS) Allows Coverage of Some Optical Devices in Its Policy Manuals
The Medicare Benefit Policy Manual, Pub. 100-02 (MBPM) elaborates on the primary statutory exception to the exclusion of eyeglasses, which is eyeglasses or contact lenses following cataract surgery. In addition to the intraocular lens inserted during the surgery, the policy allows coverage after surgery for:
1. prosthetic bifocal lenses in frames; 2. prosthetic lenses in frames for far vision and prosthetic lenses in frames for near vision; 3. when prosthetic contact lenses for far vision have been prescribed, those contact lenses plus prosthetic lenses in frames for near vision and prosthetic lenses in frames for when the contacts have been removed; and 4. lenses with ultraviolet absorbing or reflecting qualities if medically reasonable and necessary.
While Medicare covers post-surgical eyeglasses, it will pay for only standard frames. It allows the patient to be charged the difference between the cost of standard frames and deluxe frames, if chosen by the patient. The program does not cover cataract sunglasses. Furthermore, Medicare does not cover the cost of the refractive services necessary to prescribe post-surgical eyeglasses under the general exclusion of such services in the statute.
Although intraocular lenses (IOLs) inserted during cataract surgery are covered under the statute, Medicare policy denies coverage for astigmatism-correcting IOLs that combine the functions of conventional IOLs and post-surgical prosthetic eyeglasses, (which are covered). CMS has also denied coverage of IOL models not fully approved by the FDA.
The Center for Medicare and Medicaid Services (CMS) issues National Coverage Determinations (NCDs) that are binding in decisions on claims up to the Administrative Law Judge level of appeal. The Medicare NCD Manual allows coverage of some technologies that serve optical functions but are deemed not to fall into the category of routine eyeglasses. It provides that hard contact lenses (scleral shells or shields) used as artificial eyes or in treating dry eye with artificial tears are covered. CMS has also stated that hydrophilic (soft) contact lenses used as bandages for the treatment of corneal pathology such as dry eyes, corneal ulcers and erosion, etc. will be covered by Medicare. Although hydrophilic contact lenses are covered as treatment when prescribed for patients lacking the eye's natural lens ("aphakic" patients), they are categorized by CMS as non-covered eyeglasses within the exclusionary language of the Medicare statute when used to treat nondiseased eyes with spherical ametrophia, refractive astigmatism, and/ or corneal astigmatism.
Courts Have Supported Expanded Medicare Coverage of Devices Related to Vision
A recent decision by a federal district court in Maine held that a video monitor (VM) or personal reader used by a Medicare beneficiary suffering from macular degeneration must be covered as durable medical equipment. The VM uses a camera and a video monitor to greatly magnify the size of print, and is used by the beneficiary to read prescriptions, therapy instructions, financial documents, and to engage in activities of daily living.
In an earlier decision in the same case, the district court had rejected the CMS argument that the VM fell within the statutory exclusion for eyeglasses. In this decision, the judge held that the eyeglass exclusion in the Medicare statute excludes coverage only of routine eyeglasses but not more elaborate treatments. He cited two other court cases coming to the same conclusion regarding coverage of low vision technology; Davidson v. Thompson, No. CIV 04-32 LFG, slip op. (D.N.M.2004) and Collins v. Thompson, No. 2:03-cv-265-FtM-29SPC, slip op. (M.D.Fla.Jul.19, 2004). Although these latter decisions are not officially reported, they provide support for the position that the eyeglass exclusion should be given a limited scope.
The official CMS policy remains opposed to coverage of such low vision aids, based on the agency’s restrictive reading of the statutory eyeglass exclusion. The Departmental Appeals Board recently upheld a Local Coverage Determination (LCD) stating that low vision devices will be covered only as prosthetic devices for beneficiaries with congenital absence or surgical removal of the lens of the eye.
Even more directly, CMS has proposed a change in its regulations, at 42 C.F.R. § 411.15(b), that would expressly exclude coverage of low vision aids under the eyeglasses exclusion. It defines them as "all devices irrespective of their size, form, or technological features that use one or more lenses to aid vision or provide magnification of images for impaired vision." The proposed regulation would allow coverage only of the following optical devices:
(i) Post-surgical prosthetic lenses customarily used during convalescence for eye surgery in which the lens of the eye was removed (for example, cataract surgery). (ii) Prosthetic intraocular lenses and one pair of conventional eyeglasses or contact lenses furnished subsequent to each cataract surgery with insertion of an intraocular lens. (iii) Prosthetic lenses used by Medicare beneficiaries who are lacking the natural lens of the eye and who were not furnished with an intraocular lens.
Medicare's limited coverage for eyeglasses and vision assistance is a significant gap that poses a problem for many beneficiaries. CMS's proposed regulation only adds to these problems. However, while the restrictive proposed regulation is discouraging, it should be kept in mind that it may be successfully challenged in litigation, based on the three federal court decisions that have interpreted the Medicare statute as allowing coverage of low vision devices.
 42 U.S.C. § 1395y(a)(7), SSA § 1862(a)(7) (emphasis added).
 42 U.S.C. § 1395x(s)(3), SSA § 1861(s)(8).
 42 C.F.R. § 411.15(b).
 MBPM, Ch. 15, § 120. The General Accounting Office recommended years ago that this provision for coverage of eyeglasses after cataract surgery be eliminated from the statute, asserting a contradiction between it and the provision denying coverage for eyeglasses generally. GAO Report, No. HRD-90-31, Feb. 8, 1990.
 Medicare Claims Processing Manual, Pub. 100-04 (MCPM), Ch. 1, § 30.3.5.
 MBPM, id.
 MCPM, Transmittal No. 1228, April 27, 2007.
 56 F.R. 19874 (April 30, 1991).
 NCD Manual 80.5.
 NCD Manual 80.1.
 NCD Manual 80.4.
 Currier v. Leavitt, 490 F.Supp.2d 1, 2 (D.Me, 2007).
 Currier v. Thompson, 369 F.Supp.2nd 65, (D.Me. 2005).
 In re CMS LCD Complaint: Low Vision Aids (V2600-V2615), HHS Departmental Appeals Board, Civil Remedies Division Doc. No.C-06-705, Dec. No. CR1603, (May 31, 2007), HHS-DEC, MED-GUIDE, ¶121,162.
 71 F.R. 25659 et seq. (May 1, 2006).
© Center for Medicare Advocacy, Inc. 09/06/2013