Notice: This CMS-approved document has been submitted - Philips ...

CMS-1403-FC
In the Competitive Acquisition for Certain Durable
Medical Equipment, Prosthetics, Orthotics, and Supplies
(DMEPOS) proposed rule (hereinafter referred to as the
May 1, 2006 proposed rule (71 FR 25654, at 25659 and
25687)), we proposed to revise §411.15(b), which provides
certain specific exceptions to the eyeglass coverage
exclusion, to expressly state the scope of the eyeglass
exclusion. In proposing this revision, we were mindful
that three United States District courts found that the Act
does not prohibit payment for video magnifiers. (Collins
v. Thompson, No 2:03-cv-265-FtM-29SPC (M.D. Fla. June 4,
2004); Davidson v. Thompson, No. Civ. 04-32 LFG (D.N.M.
2004); Currier v. Thompson, 369 F. Supp. 2d 65 (D. Me.
2005)). We also noted that the Currier case recognized
that the statute was ambiguous, and the Supreme Court has
recognized that a prior judicial construction of an
ambiguous statute does not categorically control an
agency’s contrary construction (National Cable &
Telecommunications Association v. Brand X Internet
Services, 545 U.S. 967, 982 (2005)).
We have a longstanding practice of denying claims for
low visions aids and have stated in both judicial and
administrative processes our position that low vision aids
fall within the statutory eyeglass exclusion. The purpose
985