Funding Of Assistive Technology
To Make Work A Reality
Funding for Work-Related Assistive Technology
Through Special Education Programs, State Vocational
Rehabilitation Agencies, Medicaid, Medicare and
SSI's Plan for Achieving Self Support
James R. Sheldon, Esq.
Supervising Attorney
Email: jsheldon@nls.org
Ronald M. Hager, Esq.
Staff Attorney
Email: rhager@nls.org
National Assistive Technology Advocacy Project
Neighborhood Legal Services, Inc.
295 Main Street, Room 495 FAX: (716) 847-0227
TDD: (716) 847-1322
www.nls.org
September 2004
© Copyright 2004 – Neighborhood Legal Services, Inc.
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This version of the publication, Funding of Assistive Technology to Make Work a Reality, is published through the National Assistive Technology (AT) Advocacy Project of Neighborhood
Legal Services, Inc. as part of its Funding of AT booklet series. Information about the AT Advocacy Project, and the federal grant that supports it, appears in the Publication Credits and Disclaimer on page iii, below.
This document was originally published in 2001 to meet the needs of the two advocacy programs established through the Ticket to Work and Work Incentives Improvement Act of 1999 (see Part One, section I, below), the Benefits Planning, Assistance and Outreach (BPA&O) and the Protection and Advocacy for Beneficiaries of Social Security (PABSS) projects. Both the BPA&O and PABSS projects are mandated to provide services to beneficiaries of Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) who face one or more barriers in their movement from benefits to work, with the PABSS projects authorized to represent beneficiaries in administrative appeals and litigation (other than litigation against the Social Security Administration). In fact, the original Policy and Practice Brief has been used to provide training to many attorneys and advocates employed by PABSS projects and other Protection and Advocacy programs. We are targeting the current version of this publication to both attorneys and advocates who work for Protection and Advocacy for Assistive Technology (PAAT) programs and those who work for any other Protection and Advocacy (P&A) programs who might be expected to deal with these issues.
This article or booklet has been built around a case scenario involving Sharon, a 16 year old with a severe physical disability who will face multiple needs for AT as she completes her special education program, attends college, and eventually moves on to her employment goal. In walking through several years of her life, she is faced with the need to access several different benefit programs as funding sources for AT, including the special education program, the state vocational rehabilitation agency, Medicaid, Medicare, and SSI's Plan for Achieving Self Support.
We purposely picked a transition-aged student with a disability for this scenario. This allows us to look at the interplay of one program, special education, which serves only children and very young adults, and another, vocational rehabilitation, that overlaps with special education in its obligation to serve young adults. It allows us to look at one health insurance program, Medicare that serves only adults, and contrast it with Medicaid, which serves both adults and children. As we plan Sharon's movement from her third year of high school, through college, and eventually law school, we can see how proactive benefits planning can help to ensure that all the pieces of the puzzle are in place (i.e., that she has the needed AT and other services) so that she can truly benefit from her high school and college education on the road to gainful employment.
One of the tricky things that face students like Sharon, her parents, and the advocates who serve them is the different funding criteria that will be used by these diverse programs for approving the various AT devices which Sharon will need. This presents a challenge to those who will assemble the paperwork to justify why a particular item is needed. While our publication does not discuss any of the funding sources exhaustively, we do point out that each program will look at funding through its own perspective or mandate. So, for example, Sharon may be able to justify funding for a laptop computer as related to her education (the special education system) or her long-term work goal (the vocational rehabilitation program, SSI's PASS), but cannot justify it as satisfying a medical need (Medicaid or Medicare). However, if we combine the laptop with a device that serves as an augmentative and alternative communication device, the Medicaid program will probably fund it.
Several of the items that Sharon will seek are expensive, like the power wheelchair and the AAC device. Others, like the sophisticated, voice-activated computer equipment, may be on the cutting edge of technology and not familiar to some funding sources. Still other items may not even be available right now but emerge on the marketplace during the six or more years that we follow Sharon's progress. With both expensive AT and new technology, we can expect a significant number of denials through agencies like those discussed in the article.
Attorneys and advocates must be prepared to pursue administrative appeals and even litigation to address those denials. Those attorneys and advocates can come from the PAAT, the PABSS, or one or more other P&A programs. For example, since Sharon in the case scenario has a childhood diagnosis of cerebral palsy, she could be represented through the P&A for the Developmentally Disabled (PADD) program. If she faced similar needs as an adult with an age 23 spinal cord injury, she could be represented under the P&A for Individual Rights (PAIR) program. In fact, depending on the complexity of a case that goes into litigation, attorneys from two of these programs might collaborate on the case.
We hope this publication gets our readers thinking about the possibilities for funding work related AT and serves as a future resource. We would ask that you take a few minutes and complete the "Reader's Survey and Evaluation" form that appears on page v, below. You can also fill out that form online by following the instructions that appear on the form.
This publication, Funding of Assistive Technology to Make Work a Reality, was originally developed in 2001 as a Policy and Practice Brief by the Northeast Work Incentives Support Center in the Program on Employment and Disability (recently renamed the Employment and Disability Institute) at Cornell University's School of Industrial and Labor Relations. The Northeast Work Incentives Support Center is funded under Contract Number 0600-00-51202 from the Social Security Administration, Office of Employment Support Programs to Cornell University and their subcontractors, including Neighborhood Legal Services, Inc. of Buffalo, New York.* It is being reprinted or republished with the permission of these organizations.
The current version of this publication is published and distributed through the National Assistive Technology (AT) Advocacy Project. That project is fully funded under contract number H224B020004 from the Rehabilitation Services Administration, U.S. Department of Education, to Neighborhood Legal Services, Inc. and its subcontractors.
The co-authors of this publication are James R. Sheldon, Jr., the Supervising Attorney of the National AT Advocacy Project, and Ronald M. Hager, a Staff Attorney with the project. Both authors work part-time with the AT Advocacy Project and both are national experts on the legal issues associated with the five funding sources discussed in the publication. Both authors have presented on these topics to many audiences at national conferences and throughout the country.
The original materials were reviewed for accuracy by the Social Security Administration and other federal agencies as referenced in individual briefs. Since the original publication, some editing has been done to update the information, selectively expand sections of the article, and to provide more extensive citations to law and regulation. The opinions and positions expressed herein are those of the individual authors and do not necessarily reflect the position of the Northeast Work Incentives Support Center at Cornell University's School of Industrial and Labor Relations, the Social Security Administration, the U.S. Department of Education, or any other federal agencies, and no official endorsement by the Social Security Administration, the U.S. Department of Education, or any other federal agency, of the opinions and positions expressed herein should be inferred.
*The National AT Advocacy Project provides technical assistance, training, and a range of other support services, nationwide, to attorneys and advocates who work at Protection and Advocacy programs and specialize in assistive technology issues. For access to our many publications, you can go to our website at www.nls.org/natmain.htm.
The National Assistive Technology Advocacy Project, a project of Neighborhood Legal Services,
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Please return this form to Wilma Castro at the National AT Advocacy Project:
Ø By email: Mail to:
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(Save form to your hard drive, and then attach to the email)
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Wilma Castro
National Assistive Technology Advocacy Project
Project of Neighborhood Legal Services, Inc.
295 Main Street Room 495
Buffalo,
Publication Credits and Disclaimer
Reader's Survey and Evaluation of Publication
A Listing Of Acronyms And Abbreviations
I. The Purpose of This Article
II. AT Definitions and Other Terminology
III. Case Scenario to be Addressed in the Article
DISCUSSION OF FUNDING SOURCES FOR ASSISTIVE TECHNOLOGY
I. The Public Schools: Special Education Programs and Section 504 Obligations
A. The Special Education System
1. Eligibility for Special Education Services
2. Eligibility for AT Through Special Education Programs
3. Sharon's Eligibility for AT
4. Appeals — What if the Parent Disagrees with the IEP Team?
B. The Public Schools and Section 504
II. State Vocational Rehabilitation Agencies
A. Eligibility for VR Services
B. Sharon's Eligibility for AT
B. Eligibility for AT Through Medicaid
C. Sharon's Eligibility for AT
D. Appealing Medicaid Decisions
B. Sharon's Eligibility for AT Through Medicare
C. C. Appealing Medicare Decisions
1. Appeals in the Traditional Medicare System
2. Appeals in the Medicare Plus Choice System
V. SSI's Plan for Achieving Self Support
D. Using "Deemed Income" to Fund a Vocational Objective: PASSes for Spouses and Children
E. Appeals - What if a PASS Proposal is Denied?
AT Assistive Technology
BPA&O Benefits Planning, Assistance and Outreach Project
C.F.R. Code of Federal Regulations
DAC Disabled Adult Child's Benefits (referring to a form of SSDI benefits, officially known as Child's Insurance Benefits)
DME Durable Medical Equipment
IDEA Individuals with Disabilities Education Act
IEP Individualized Education Plan
IPE Individualized Plan of Employment
PABSS Protection and Advocacy for Beneficiaries of Social Security Program
POMS SSA's Program Operations Manual Systems
SSA Social Security Administration
SSDI Social Security Disability Insurance
SSI Supplemental Security Income
U.S.C.
VR Vocational Rehabilitation
Funding of AT to Make Work a Reality
Funding for Work-Related Assistive Technology Through Special Education Programs, State Vocational Rehabilitation Agencies, Medicaid, Medicare and SSI's Plan for Achieving Self Support
I. The Purpose of This Article
The Ticket to Work and Work Incentives Improvement Act of 1999, in its "findings" section, recognizes the importance of assistive technology (AT)[1] in helping individuals with disabilities to work:
Coverage ... for [personal assistance services], as well as for prescription drugs, durable medical equipment, and basic health care are powerful and proven tools for individuals with significant disabilities to obtain and retain employment.[2]
Individuals with disabilities have greater opportunities than ever before, aided by ... innovations in assistive technology, medical treatment and rehabilitation.[3]
The availability of AT can make a tremendous difference in the ability of an individual to work, even when that individual has a severe disability. In the work context, AT serves several functions: it may make it possible to participate in an education or training program; it may make it possible to get prepared to leave the home for work or training; it may make it possible to travel to and from work; and in some cases, the work itself could not be done without the AT.
This article will describe how AT can assist individuals with severe disabilities to overcome barriers to gainful employment. It will also describe several key funding sources available, in all states, to pay for the AT devices and services that will help individuals prepare for, get to, and succeed in employment. Specifically, we will discuss the public school special education system, state vocational rehabilitation agencies, Medicaid, Medicare, and the Supplemental Security Income (SSI) program's Plan for Achieving Self Support.
We originally wrote this for a primary audience of individuals who work for either a Benefits Planning, Assistance and Outreach (BPA&O) project or a Protection and Advocacy for Beneficiaries of Social Security (PABSS) program, both of which are mandated to serve individuals with disabilities who receive either SSI or Social Security Disability Insurance (SSDI) benefits. This article, as recently edited and updated, will also be very useful for attorneys and advocates employed by Protection and Advocacy for Assistive Technology (PAAT) programs. We assume that this article will also be distributed to many SSI and SSDI beneficiaries, their families, and the agencies that serve them.
Although we are urging attorneys and advocates in the other P&A programs to get involved in the various programs summarized in this article, we have not attempted to provide a comprehensive summary of each program. Instead, we are providing enough of a summary of each funding source to provide context for looking to meeting the AT-related needs of the hypothetical Sharon whose situation is described below.
II. AT Definitions and Other Terminology
Assistive technology is a term that gained popularity after it appeared in the Technology Related Assistance for Individuals with Disabilities Act in 1988.[4] Known by many as the Tech Act,[5] this legislation provides definitions for AT devices and services:
The term "assistive technology device" means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of individuals with disabilities.
* * * * *
The term "assistive technology service" means any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device.[6]
The term AT service specifically includes evaluations to determine the need for a device, customizing or adapting the device for its user, repairs, maintenance and training on how to use the device.
The popular use of the term AT is of recent vintage and only a few funding sources have adopted it to date, including the special education and the vocational rehabilitation systems.[7] For this reason, individuals with disabilities and the advocates who work with them need to communicate with funding sources, concerning AT, in the language which has meaning to them. When dealing with Medicaid or Medicare, the term "durable medical equipment" is used most frequently to describe traditional items like wheelchairs, augmentative and alternative communication devices, and hospital beds. A wide range of other terms, such as prosthetic device or orthopedic appliance, will often be used to describe what we think of as AT. When the term AT is used by a program or funding source, it will usually include the variety of devices and services which will be encompassed by the many other terms.
Many persons with disabilities can benefit greatly from AT, including those with physical, visual, cognitive and hearing impairments. The following is a list of AT devices that a person may need to receive training, leave the home, travel to work, or perform work:
· Power and custom-made wheelchairs
· Augmentative and alternative communication devices
· Environmental control units
· Lifting devices, such as Hoyer lifts and ceiling track lifts
· Vehicle modifications, including wheelchair lifts and hand controls
· Computer equipment and adaptations, including braille printers, voice output, touch screens, and switches which allow computer access through voluntary movements such as eye blinks or head movements
· Assistive listening devices, including hearing aids and personal FM units
· Home modifications, including ramps, lifts and stair glides
· Work site modifications, including adapted office equipment and environmental control devices
· Classroom modifications, including adaptive seating systems
These devices and others have been obtained for persons with disabilities through a wide range of funding sources, including the special education system, the state vocational rehabilitation agency, the state's Medicaid program, Medicare, the SSI program's Plan for Achieving Self Support, and many others. Sometimes a device will only be funded following an administrative hearing or court appeal.
Low-tech AT may cost under $50. Some devices are much more expensive, however. For example, a package of computer equipment for a computer programmer who is blind may cost more than $10,000. Similarly, many power wheelchairs sought through Medicaid will cost more than $10,000. As the cost escalates, the likelihood that a funding source will deny approval increases.
III. Case Scenario to be Addressed in the Article
To give context for this article, we are providing the reader with a case scenario in which the individual with the disability needs AT to receive training, leave the home, travel to work, and perform work. In order to touch on several funding sources for children and adults, we have made the individual an older teen who can be expected to have certain needs as a young adult. Although our hypothetical individual is a person who is expected to go on to college, AT may be equally useful to the individual who will go straight from a public school program to work or a noncollege training program.
Consider Sharon, who is 17 years old and has cerebral palsy, a diagnosis she has had since birth. She is completing her junior year in high school, has above average grades, and plans to attend college to become an attorney. Sharon's 18th birthday will occur in December of her senior year in high school. Although Sharon attends all regular classes, she receives support services from a special education teacher in the classroom, as well as speech pathology, occupational therapy, and physical therapy services from her school's special education department.
Sharon resides with her mother, stepfather and 12 year old brother who does not have a disability. Her father died when Sharon was young and she now collects $420 in Social Security survivor's benefits on her father's Social Security record. Her parent's combined annual income is about $60,000, which makes her ineligible for SSI at this point because both the parent's and stepparent's income is considered available to Sharon.
Sharon has already visited the School of Industrial and Labor Relations at Cornell University in Ithaca, New York and hopes to attend undergraduate school there. Her good grades and SAT scores should ensure her acceptance at the school. Her home is a 30-mile, round-trip commute from the campus, but public transportation is not available for this travel. Sharon plans to continue living at home and commute to the campus.
Sharon and her parents have identified the following AT, which is needed presently or is an expected need over the next three to five years:
· A power wheelchair: Sharon's existing lightweight wheelchair is something she can self propel on level terrain for distances up to about 200 feet. If she attends college at Cornell (the university and the village of Ithaca are extremely hilly), she will not be capable of independent mobility without a power wheelchair. Even in flat areas, the buildings on this campus (and most campuses) are spaced far enough apart that she could not propel her manual wheelchair between classes.
· An augmentative and alternative communication (AAC) device: Sharon's speech is understandable only to familiar listeners. She currently has a sevenyear old device that allows her to speak by electronic means. This device is constantly in for repairs and it has become more difficult to find the parts to repair it.
· A laptop computer with adapted keyboard and voice input software: Sharon has extreme difficulty writing and currently has a note taker in school, funded through the special education program. She uses her family's six-yearold personal computer at home, with an adapted keyboard, to do all school assignments. Despite her severe speech problems, a local university's evaluation recommends the latest in software technology to allow her to dictate notes, assignments and papers into the computer. The evaluators tell Sharon that the software program will be able to pick up her speech patterns and capture what she says with up to 90 percent accuracy. (Sharon's speech pathologist is recommending that she consider a combination laptop computer/AAC device that can meet both the speech input and personal computer functions at a fraction of the cost of the two devices combined.)
· A ceiling track lift: Currently, Sharon's parents use a traditional Hoyer lift to get her into and out of bed, and to meet her needs in the bathroom. Her mother finds it increasingly difficult to operate the lift and her stepfather's business requires frequent out-of-town trips. The more expensive, state-of-theart ceiling track lift would allow Sharon to more safely and efficiently meet her needs in order to get out of the home to attend college.
· Access ramp at the home: Currently, Sharon and her wheelchair must go up and down stairs to enter or exit the home. The family uses a makeshift method with two long planks to allow her to move up and down the stairs. She also needs two persons to guide the wheelchair up or down. A ramp will allow Sharon to safely come and go without a second person to help her. The ramp will become particularly important when Sharon starts using the heavier power wheelchair.
· A van, specifically modified for a wheelchair user: Based on a recent driver evaluation, Sharon was found capable of driving a van equipped with the various modifications that allow her to drive from her wheelchair (hydraulic lift, wheelchair lock down, hand controls, etc.). If she can obtain the van while she is in college, she will avoid the expense of a private wheelchair van service to take her to college. The van will be needed for travel to work after she leaves college.
This article will discuss the following potential funding sources for AT:
· the public schools, including their special education programs and obligations under section 504 of the federal Rehabilitation Act
· state vocational rehabilitation agencies
· Medicaid
· Medicare
· SSI's Plan for Achieving Self Support
For each funding source, we will go through the key criteria to obtain funding for AT, including:
· How one becomes eligible for the program or service
· The criteria that program follows for covering AT devices and services, and the likelihood that the program would fund the devices sought by Sharon
· Any appeal procedures for challenging a denial of funding
I. The Public Schools: Special Education Programs and Section 504 Obligations[8]
A. The Special Education System
1. Eligibility for Special Education Services
The special education rights of children and parents, as well as the responsibilities of school districts, are spelled out in a major federal law, the Individuals with Disabilities Education Act (IDEA).[9] The IDEA guarantees, in every state, that all eligible children with disabilities receive a free appropriate public education, which is designed to meet their unique needs. It must be at no cost to the parents or student.[10] Since there can be no income test for special education services, it does not matter, for example, that Sharon's parents have an annual income of $60,000. The income could be half that amount or double that amount and she would be eligible for the same services.
The IDEA applies to all students aged 3 through 21, or until the student receives a regular high school diploma.[11] To qualify for special education services, a child must have a disability, such as a speech, mobility, orthopedic, health, hearing or visual impairment, mental retardation, or a learning or emotional disability, because of which the child requires special education and related services.[12] Special education is defined as specially designed instruction to meet the unique needs of the child.[13] Related services are defined as developmental, corrective and other support services required to assist a student with a disability to benefit from an education and include occupational therapy, physical therapy, speech pathology, counseling, health services, and parent training.[14] Sharon is eligible for special education and related services (i.e., speech pathology, occupational therapy and physical therapy), even though she attends all regular classes. This is because she needs the extra services to adequately benefit from her education.
The IDEA also requires that students receive their special education assistance in the least restrictive environment appropriate to meet their needs. This means that removal from regular education classes occurs only when a student cannot be successfully educated in regular classes, even with "supplemental aids and services." When a student is removed from the regular educational environment for part of the day, the student must still be educated with nondisabled peers as much as possible.[15]
The needs of the student and the services to be provided must be designated, in writing, on an individualized education program (IEP). The IEP must be developed at a meeting with a group of people, including the parents and teachers. The IEP must specify all of the educational services planned for a child, including the child's placement, the special education services, and any supplementary aids or related services.[16] The IEP will also indicate how often these services will be provided. The IEP Team must review the IEP at least once per year and more often if requested by a parent or teacher.[17]
2. Eligibility for AT Through Special Education Programs
In 1990, the IDEA was amended and the definitions of AT were added.[18] AT may be considered as special education, related services or supplementary aids and services to ensure placement in the least restrictive environment.[19] The services are to be decided upon by the IEP Team and indicated in the IEP.[20]
Any request for special education services, including AT, should be made, in writing, to the IEP Team. This starts the process to determine what, if any, AT may be necessary to meet the child's educational needs. Before the IEP Team can determine a child's need for AT, it is required to obtain an appropriate evaluation.[21] If the parent disagrees with the findings of the school district's evaluator, the parents can request that the school pay for an independent evaluation.[22]
The key question is whether the AT is needed to ensure that the student receives a free appropriate public education. The decision must always be made based on the individual needs of the student as determined by the participants at the IEP Team meeting.[23] AT can be approved if it is needed to assist the child to achieve meaningful educational progress, remain in the least restrictive setting, or prepare him or her for the transition to adult life. AT should always be considered before a decision is made to place a student in a more restrictive setting.
3. Sharon's Eligibility for AT
The AAC device is an item that special education programs have frequently funded. It would meet the definition of AT device as a supplementary aid, special education, or a related service.[24] As her only effective means of communicating with teachers and peers, it will ensure that Sharon can effectively participate in the regular classroom. If specialized software is needed, or if training is needed to learn how to use the AAC device, those items would be AT devices and services, respectively, and could also be approved by the special education system. Finally, in order to fully learn to use the device, benefit from its use, and to develop her communication abilities, Sharon should be allowed to take it home, despite any increased chances of damage to this expensive item.[25]
The laptop computer with specialized keyboard and voice input software are items that can be funded through a special education system.[26] They will become important to Sharon as she and the special education system plan her "transition" from the public school system to college and eventual employment. The school may argue that she does not need the laptop to benefit from her education, as she can use the computers in the school library. Sharon may counter that the laptop is needed to meet the increased homework demands during her last two years of high school. Since the special education program has an obligation to prepare Sharon for the transition to higher education, her later need for the laptop will be an added argument for providing it while she is still in high school.[27] Based on the limited facts we are given, it appears that Sharon will have a strong case for the computer and accessories, which may depend on how well she is able to both succeed in high school and prepare for the transition to college without them.
Since both the AAC device and the laptop (or one dual purpose device) will be very important to Sharon as she enters college, it will be very important that any devices she receives during high school stay with her as she leaves. This can be a problem, as most special education programs around the country will retain ownership of equipment purchased by them and the equipment will remain with the school when the student graduates.[28] For this reason, Sharon may wish to investigate funding of these items by another entity, such as Medicaid or her state's vocational rehabilitation (VR) agency, that will allow her to retain ownership.[29]
The special education program will probably not be responsible for purchasing the ceiling track lift, the access ramp, or the modified vehicle as they are not directly connected to whether Sharon benefits from her education. Nor are they needed, as special education or related services, to prepare her for the transition to adult life. However, a special education system will be responsible to provide Sharon with accessible transportation to and from school, including any off site programs that are part of her curriculum.[30] Based on the facts presented, it would also not appear that the school is responsible for the power wheelchair, as it is not needed for Sharon to benefit from her education. Special education programs have been required to pay for mobility equipment, like wheelchairs, under limited circumstances.[31]
In Sharon's case, it appears that she can propel her manual wheelchair to meet her
needs in the public school. Her problem will occur when she goes to Cornell
4. Appeals — What if the Parent Disagrees with the IEP Team?
Any time a parent or guardian disagrees with the services proposed on the IEP, a hearing can be requested. The parent has the right to be represented by an attorney or other advocate and can present witnesses and other evidence in support of the appeal.[32]
The current program is to remain in place while any appeal is pending.[33] For example, if last year's IEP provided for use of a special computer and this year's IEP eliminated that provision, a hearing request would guarantee that the computer is provided during the course of the appeal. Additionally, if a student moves from one school district to another in the State, and the new school district refuses to recommend the computer and the parents' request a hearing, the new school district must provide the computer until the case is resolved.[34]
B. The Public Schools and Section 504
The rights of children whose disabilities do not meet the criteria for special education, but who still may need some specialized assistance, including AT, are covered by section 504 of the Rehabilitation Act of 1973 (section 504).[35] Under section 504, schools must take reasonable steps to ensure that these students have access to the full range of programs and activities offered by the school and ensure that students receive a free appropriate public education.[36]
To determine a student's eligibility and needs, school districts may choose to simply use the IEP Team procedures and IEP. If other procedures are used, they must include the following:
· the student must be provided with a comprehensive, individualized evaluation of his or her needs, with regular reevaluations;
· the decision about eligibility and services must be made by a group of people, including the parents, knowledgeable about the child, the evaluation information, and the placement options;
· the student's needs must be specifically identified in writing; and
· parents have due process rights if they disagree with the district's recommendations, including the right to an impartial hearing.[37]
Although section 504 does not include the right to an independent evaluation at school district expense,[38] it does include the right to appeal the evaluation conducted by the school district. It also includes the right to "status quo," i.e., the continuation of existing services pending an appeal.[39]
In the event that Sharon did not meet the criteria as a special education student, section 504 would still be available to ensure that she has full access to the school and its services. For example, to allow Sharon to move about the school, section 504 may require the installation of access ramps to allow her to enter and leave the building. It may also require the installation of an elevator to allow her to reach various locations in the school, if other means of ensuring access are not available. If the school provides access to computers for students, section 504 would require that adaptations be provided to allow Sharon to use the computers despite her severe disability.[40] Section 504 may also require the use of AT to enable the student to participate in the educational program.[41]
II. State Vocational Rehabilitation Agencies
A. Eligibility for VR Services
State VR agencies can play a critical role in assisting people with disabilities to enter the work force.[42] VR services are to "empower individuals . . . to maximize employability, economic self-sufficiency, independence, inclusion and integration into . . . the work place . . . [and the community through] comprehensive and coordinated state-of-the-art programs."[43] The comments to the 2001 regulations reaffirm this "maximization" requirement. They note that States must "look beyond options in entry-level employment for VR program participants who are capable of more challenging work."[44]
An eligible individual must be disabled and require VR services "to prepare for, secure, retain or regain employment."[45] Persons must show a mental, physical or learning disability that interferes with the ability to work. It need not be so severe as to qualify the person for SSDI or SSI benefits. It need only be a substantial impediment to employment.[46] Recipients of SSDI or SSI disability benefits are presumed to be eligible for VR services, if they intend to achieve an employment outcome.[47] Although VR services may be denied if a person cannot benefit from them, a person is presumed capable of employment, unless the VR agency shows by clear and convincing evidence they cannot benefit.[48] Any service an individual is to receive from the VR system must be connected to an ultimate employment goal.
The written Individualized Plan for Employment (IPE) lists the employment goal and the specific services to be provided.[49] This plan is to be developed by the consumer, with assistance from the VR counselor if requested, and approved by the VR agency.[50] Prior to developing the IPE there must be a comprehensive assessment, to the extent necessary to determine the employment outcome, objectives and nature and scope of VR services.[51] It may also include a referral for the provision of rehabilitation technology services, "to assess and develop the capacities of the individual to perform in a work environment."[52]
The VR agency must ensure that all necessary services are provided to equip the individual for employment. It cannot choose to provide only some services to eligible individuals to save costs. The "severity of an individual's disability or the cost of services can have no bearing on the scope of services the individual receives."[53]
The services available from the VR system are incredibly broad and varied. The following are representative VR services under which AT could be funded: (1) an assessment by someone skilled in rehabilitation technology (i.e., AT); (2) services needed for the diagnosis and treatment of physical or mental impairments, including prosthetic and orthotic devices, eyeglasses and visual services; (3) transportation, including the purchase and repair of vehicles, including vans; (4) interpreter services, readers, rehabilitation teaching, and orientation and mobility services; (5) AT, including vehicular modification, telecommunications, sensory, and other technological aids and devices; (6) transition services for students with disabilities; (7) other goods and services determined necessary to achieve an employment outcome; and (8) post-employment services necessary to assist an individual to retain, regain or advance in employment.[54]
States need not consider financial need when providing VR services.[55] However, any financial needs test must take into account the individual's disability-related expenses. The individual's level of financial contribution must not be so high as to "effectively deny the individual a necessary service."[56] SSI and SSDI recipients are totally exempt from any financial needs test.[57]
The following services must be provided without regard to financial need: (1) diagnostic services; (2) counseling, guidance and referral services; (3) job placement; (4) personal assistance services; and (5) "any auxiliary aid or service," such as interpreter or reader services, that the individual needs to participate in the VR program and which would be mandated under section 504 of the Rehabilitation Act or the Americans with Disabilities Act.[58]
VR agencies will not pay for a service if a comparable benefit is available through another provider.[59] For example, if an applicant qualifies for personal assistance services through Medicaid, the VR agency will not provide them. But, loans, which must be repaid, are not similar benefits.[60] A Plan for Achieving Self Support (PASS) is not a comparable benefit.[61] Additionally, AT is exempt from the comparable benefit requirement.[62]
B. Sharon's Eligibility for AT
Most of the items listed in the Sharon scenario, above, can potentially be funded through a state VR agency if she can establish: i) that she needs the item to reach her vocational goal; and ii) that she meets the VR agency's financial need criteria, if any.[63] Generally, she would also need to show that she has exhausted any comparable benefits that may be available to pay for the item. However, since each of the items sought should meet the definition of an AT device or service, their funding is exempt from the comparable benefit requirement.
More than likely, the VR agency will refer Sharon to either Medicaid or Medicare (if she is eligible for those programs) to fund the power wheelchair and AAC device, even though those items are exempt from the comparable benefit requirements. Both Medicaid and Medicare will routinely fund those items when they are medically necessary. Sharon should be encouraged to foster good will with the VR agency by first seeking Medicaid or Medicare funding for these items.
The laptop computer, with accessories, and the access ramps are items that are likely to be funded through the VR agency if Sharon can show they are necessary for the success of her vocational plan. It is less likely that Medicaid or Medicare will be able to fund these items.[64] Sharon need not exhaust SSI's PASS as a potential funding source as that is not considered a comparable benefit.
The ceiling track lift is a more difficult argument. A VR agency can fund home modifications, under the category of rehabilitation technology, when necessary to allow a person to leave the house to attend a training program, set up a home business, or go to work. Although the ceiling track lift, which is typically used to get a person to and from the bed or bath, may be viewed more like a personal hygiene aid, personal assistance is a service that can be covered by the VR program. Sharon's best approach is to argue that the ceiling track lift, like the access ramp and the van modifications, is necessary to get her out of the house and to school.
In a few states, the VR agency will fund a vehicle lease or purchase if needed to participate in a VR program. It is clear that the federal VR regulations permit a state to fund vehicles, but less clear whether it would require that they do so in all cases.[65] Under the facts presented, however, one should argue that since the purchase or lease of a vehicle would be less expensive than a private transportation service to and from college for four years, a vehicle should be purchased or leased for Sharon. In all states, the agency should pay for the modifications to allow Sharon to get into the van and drive it from her wheelchair.