FUNDING OF
ASSISTIVE TECHNOLOGY FOR
PERSONS WITH DISABILITIES
The
Availability of Assistive Technology Through
Medicaid, Public School Special Education Programs
and State Vocational Rehabilitation Agencies
Copyright 1997, Neighborhood Legal Services, Inc.
This article was first published in
31 Clearinghouse Review page 50
May-June 1997
March 1997
Written by:
James R. Sheldon, Jr.
Supervising Attorney, and
Ronald M. Hager
Staff Attorney
National Assistive Technology
Advocacy Project
A Project of Neighborhood Legal Services, Inc.
237 Main Street, 4th Floor
Buffalo, New York 14203
716-847-0650
Table of Contents
Click on a topic to jump to it
I. Introduction
II. What is Assistive Technology?
III. Why AT is an Important Area of Advocacy
IV. Discussion of Primary Funding Sources for AT
A. Medicaid
1. Eligibility for Medicaid
2. What AT Devices can be Funded Under
Medicaid?
a. AT Available to
Adults Under Medicaid
b. AT Available to
Children Under Medicaid's EPSDT Program
3. Medical Necessity
4. Interpretive Guidance in Law and
Regulation
5. Application of Medicaid Law to Specific
Requests for Assistive Technology
B. Special Education and the Public Schools
1. Special Education Law: the Basics
2. AT in the Schools -- What is it?
3. How to Obtain AT from the Special Education
System
a. Send Request to the IEP Committee
b. Evaluations at LEA Expense
c. Criteria for AT Approval
d. Who Owns the AT Device?
4. Appeals
5. Section 504 of the Federal Rehabilitation Act
a. Procedures for Obtaining AT
under Section 504
C. The State Vocational Rehabilitation (VR)
Agency
1. State VR Agencies: What are They?
2. Basic Eligibility Criteria
3. The Individual Written Rehabilitation
Program
4. Available Services
5. Financial Need Criteria
6. Maximization of Employability
7. Comparable Services Requirement
a. Purchase of AT for Special
Education Students in Transition: Who Pays?
b. AT for the College Student:
Who Pays?
8. Appeal and Hearing Rights
9. The Client Assistance Program
V Conclusion
A new subject matter for advocacy is the funding of assistive technology (AT) for persons with disabilities. This article explains what is encompassed by the term "assistive technology" and presents an overview of three AT funding sources: Medicaid, the public schools' special education system and state vocational rehabilitation (VR) agencies.
This article does not discuss several other AT funding sources.
These additional funding sources include Medicare, private insurance, the Early
Intervention Program under Part H of the Individuals with Disabilities Education Act, the
Department of Veterans Affairs, the Supplemental Security Income (SSI) Plan for Achieving
Self Support and private charities. Readers who wish to explore Medicaid, special
education or VR agencies in greater depth or who wish to explore these other funding
sources should contact the National Assistive Technology Advocacy Project.
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II. What is Assistive Technology?
Assistive technology is a term that gained popularity after it appeared in the Technology Related Assistance for Individuals with Disabilities Act in 1988. Pub. L. 100-407, 102 Stat. 1044, 29 U.S.C. '' 2201 et seq. Known by many as the Tech Act, 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. 29 U.S.C. ' 2202(2).
* * * * *
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. Id. '' 2202(3).
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. Id.
The popular use of the term assistive technology is of recent vintage and very few funding sources have adopted it to date. The special education system has fully adopted assistive technology (AT) as a term of art. See section IV.B, infra. Although this new term of art is helpful, advocates need to communicate with funding sources in the language which has meaning to them. Typically, when dealing with Medicaid or private insurers, the terms "durable medical equipment," "prosthetic equipment" or "orthopedic appliances" will be used to describe traditional items like wheelchairs, artificial limbs and hospital beds. A state vocational rehabilitation agency will use the term "rehabilitation technology" to describe the various devices it will fund. You may also hear terms like adaptive equipment, accessibility modifications and similar language. The term AT is particularly helpful for advocates as 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 and hearing impairments. AT devices include:
!
Motorized and custom-made wheelchairs! Augmentative communication devices, including talking computers
! 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 one or more of the funding sources discussed in this article.
Low-tech AT may cost under $50. Some devices are much more
expensive, however. For example, a package of computer equipment for a blind computer
programmer may cost more than $10,000. Similarly, many motorized wheelchairs sought
through Medicaid or private insurance will cost more than $10,000. As the cost escalates,
the likelihood that a funding source will deny approval increases.
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III. Why AT is an Important Area of Advocacy
This article is written for a primary audience of attorneys, paralegals and advocates who work in Protection and Advocacy (P&A), Legal Services, Legal Aid and Client Assistance Program (CAP) agencies. All of these agencies or programs serve clientele who lack resources to retain private attorneys to fight their legal battles.
P&A and CAP advocates are mandated to serve persons with disabilities. For Legal Services and Legal Aid programs, that are mandated to serve persons who are poor, the disabled are among the most needy of their clients -- subject to the dual disadvantage of having limited income and a disability.
The AT devices sought by our clients will, in many cases, allow them to independently perform basic activities like movement from place to place (using a wheelchair) or communication with family, friends, co-workers and service providers (using an augmentative communication device). The use of AT will allow our clients to overcome their disabilities and reach their highest levels of independence. Indeed, in many cases the person may be able to use AT as a way to obtain gainful employment and escape from poverty.
Congress recognized the importance of AT advocacy in 1994 when it
reauthorized the Tech Act and created a specific funding stream for the Protection and
Advocacy for Assistive Technology (PAAT) programs. Pub. L. 103-218, ' 4(7), 29 U.S.C. '
2202(9); Pub. L. 103-218, ' 102(7)(I), 29 U.S.C.
' 2212(e)(20). With a PAAT funded in every
state, the amount of AT advocacy has greatly expanded since 1994. Unfortunately, the
statutory authorization for PAATs lapses after five years meaning that this source of AT
advocacy may end within two years of the publication of this article. Pub. L. 103-218, ' 4(7), 29 U.S.C. '
2202(9); Pub. L. 103-218, ' 102(7)(I), 29 U.S.C.
' 2212(e)(20). This sunset to the PAAT funding
underscores the importance of Legal Services, Legal Aid, P&A (other than PAAT) and CAP
programs becoming more involved in this emerging category of case work.
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IV. Discussion of Primary Funding Sources for AT
The great majority of AT advocacy has involved one of three funding
sources: Medicaid, the public school special education system and the state vocational
rehabilitation agency. We will discuss each of these funding sources.
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A. Medicaid
Medical Assistance or Medicaid is a cooperative Federal-State program authorized by Title XIX of the Social Security Act. 42 U.S.C. '' 1396 et seq. A state's Medicaid program provides funding for medical care, rehabilitation and other services for eligible individuals "whose income and resources are insufficient to meet the costs of necessary medical services." Id. ' 1396. States are not required to operate a Medicaid program, but if they choose to do so, they must submit a state Medicaid plan to the Secretary of Health and Human Services (HHS)[Id. '' 1396, 1396a; Schweiker v. Gray Panthers, 453 U.S. 34, 36-37 (1981); Harris v. McRae, 448 U.S. 297, 301 (1980], which must be approved if it meets all requirements of Title XIX and its implementing regulations. 42 U.S.C. '1396a(b).
Medicaid is best described as a vendor payment program. A state's Medicaid program does no t provide any goods or services directly; rather, it provides money to pay for them. Medicaid is clearly the most important funding source for AT at this time.
This part of the larger article does not attempt to provide a treatise on Medicaid. [For a more thorough discussion of Medicaid, see NATIONAL HEALTH LAW PROGRAM, AN ADVOCATE'S GUIDE TO THE MEDICAID PROGRAM (1993).] Nor does it provide an exhaustive discussion of issues involving Medicaid and the funding of AT. It does provide a framework for analysis of the issues that are typically encountered by the advocate who is appealing the denial of funding for an AT device.
An individual who seeks Medicaid funding for AT must generally meet a three-part test:
1. The individual must be eligible for Medicaid;
2. The specific device requested must be one that can be funded by the Medicaid program;
3. The individual must establish that the device requested is medically necessary. [Neither the Medicaid Act nor its implementing regulations spell out this three-part test. However, advocates have determined that, as a practical matter, a person who meets each of these criteria will obtain the AT device he or she is seeking.]
Each of these criteria is discussed below.
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Medicaid is a complicated maze of state and federal laws, regulations and policies. This section will not attempt to discuss the many Medicaid recipient categories under the federal law and the eligibility criteria that apply to each category. Nor will it attempt to summarize all of the categories that have been affected through recent welfare reform legislation. [The major welfare reform legislation from last year is known as the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104-193, 110 Stat. 2105 (Aug. 22, 1996). For a detailed discussion of how this new law affects Medicaid recipients, see The National Health Law Program, et al.,]
This article assumes that your client has met part one of the
three-part test set forth above and is eligible for Medicaid. While the writers recognize
the importance of Medicaid eligibility as a subject for advocacy, our purpose is to focus
on how the Medicaid recipient qualifies for AT.
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2. What AT Devices can be Funded Under Medicaid?
As you consider the extent of Medicaid-funded AT in your state, it
is important to distinguish benefits available to adults aged 21 or older and those
available to children up to age 21 under the Early and Periodic Screening, Diagnosis and
Treatment (EPSDT) program. 42 U.S.C. '
1396d(a)(4)(B); 42 C.F.R. '' 441.50 - 441.62.
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a. AT Available to Adults Under Medicaid
In order to qualify for AT as an adult, the device in question must be available under the state's Medicaid plan [See note 10, supra.] or it must be available under a specific Medicaid waiver program. See, e.g., 42 C.F.R. '' 440.180 (home or community-based services), 440.181 (home and community-based services for individuals age 65 or older). These waivers allow states to provide services to a specific population within a state that are not otherwise furnished under the state's Medicaid plan. Id. By choosing to participate in Medicaid, a state must provide certain mandated services [42 U.S.C. ' 1396d(a)(1)-(5), (17) and (21)]. and may also choose to provide from a list of optional Medicaid services. Id. ' 1396d(a)(6)-(16), (18), (19), (20), (22)-(25).
Based on a reading of the federal regulations and based on the experience of advocates, 11 separate Medicaid service categories have been identified for funding of AT. They are broken down by mandatory and optional categories as follows:
Mandatory Service Categories for AT Funding See, e.g., 42 C.F.R. §§ 440.180 (home or community-based services), 440.181 (home and community-based services for individuals age 65 or older). These waivers allow states to provide services to a specific population within a state that are not otherwise furnished under the state's Medicaid plan. Id.
!
home health care services (medical supplies, equipment and appliances)! EPSDT (for children)
Optional Service Categories for AT Funding 42 U.S.C. § 1396d(a)(1)-(5), (17) and (21)
! home health care (home health aide and personal care services)
! intermediate care facilities
! occupational therapy
! physical therapy
! preventive services
! private duty nursing
! prosthetic devices
! rehabilitation services
! speech, hearing and language therapy
Each service category is specifically defined in the federal regulations. See, e.g., 42 C.F.R. '' 440.70(b)(3) (medical supplies, equipment and appliances, as mandatory items under home health services), 440.110 (physical therapy, occupational therapy, speech, hearing and language therapy), 440.120(c) (prosthetic devices),440.130(c) (preventative services),440.130(d) (rehabilita-tive services).
Suggested Sequence for Analysis of AT Case
To determine if your state's Medicaid program should be expected to cover a specific AT device for an adult, the following analysis is recommended:
1. Determine which of the 9 optional service categories, listed directly above, are a part of your state's Medicaid plan.
2. Review the federal regulations which define each service category (i.e., the mandatory home health services category and the relevant optional categories) and determine which category or categories the AT device potentially fits under.
3. Review your state Medicaid law, regulations and policy to determine: if your state has separately defined the service categories in question; has developed criteria for approval of AT, in general; or has developed criteria for the AT device in question.
4. Determine whether your state has ever funded the item in question or a device in the same family of items. What can be helpful here is to identify previous fair hearing decisions that have approved the device or one like it. [See, e.g., 42 C.F.R. '' 440.70(b)(3) (medical supplies, equipment and appliances, as mandatory items under home health services), 440.110 (physical therapy, occupational therapy, speech, hearing and language therapy), 440.120(c) (prosthetic devices),440.130(c) (preventative services), 440.130(d) (rehabilitative services).]
5. Determine whether the Medicaid agency from another state has funded the item in question under a service category that is available in your state. [See, e.g., 42 C.F.R. '' 440.70(b)(3) (medical supplies, equipment and appliances, as mandatory items under home health services), 440.110 (physical therapy, occupational therapy, speech, hearing and language therapy), 440.120(c) (prosthetic devices),440.130(c) (preventative services), 440.130(d) (rehabilitative services).]
Items 4 and 5 present a special challenge as your state's Medicaid
agency and the Medicaid agencies of other states seldom keep indexed files of what has
been approved at the application stage and what has been approved at the fair hearing
stage. In many states the PAAT program has set up its own resource library of statewide
fair hearing decisions. On a national level, the National Assistive Technology Advocacy
Project has established an AT Resource Library which includes Medicaid fair hearing
decisions which it has collected from advocates nationwide. If a fair hearing resource
library, for AT-related decisions, has not been established in your state, start one today
and send copies of the decisions to the National AT Advocacy Project.
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b. AT Available to Children Under Medicaid's EPSDT Program
The Early and Periodic Screening, Diagnosis and Treatment (EPSDT) is a mandatory service under Medicaid. 42 U.S.C. '' 1396a(a)(10)(A); 1396d(a)(4)(B); 1396d(r). EPSDT services are available for children from birth through age 21. A state must provide to Medicaid beneficiaries under age 21 any service among those listed in the Medicaid Act, including optional services, whether or not the service is included in the state's Medicaid plan. Id. ' 1396d(r)(5); U.S. Department of Health and Human Services, Health Care Financing Administration (HCFA), State Medicaid Manual, Part 5: EPSDT, ' 5110. Since children, under EPSDT, have the full range of optional service categories available to them, many of the breakthroughs in obtaining Medicaid funding for items like augmentative communication devices (ACDs) have first occurred for children under the EPSDT program.
The five-part inquiry to be followed for adults also applies for
children, with one exception -- the advocate need not review the state Medicaid plan to
determine which optional service categories are available. For children, you can simply
measure your client's need for a device against the regulatory language for any of the 11
categories listed above.
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3. Medical Necessity
A state's Medicaid agency will typically follow a prior approval process for determining whether a particular AT device gets funded. See, e.g., 18 N.Y. Codes, Rules and Regulations Part 505, providing for New York's prior approval process for reviewing Medicaid claims seeking durable medical equipment. Assuming that the device is one that can be funded for a person eligible for Medicaid, the question now turns to whether the device is medically necessary.
The provisions authorizing states to establish a medical necessity
standard come out of the statutory and regulatory language governing Medicaid. The
Medicaid Act provides funding for medical care, rehabilitation and other services for
eligible individuals "to meet the costs of necessary medical services."
42 U.S.C. ' 1396(emphasis added). In operating
its Medicaid program a state "may place appropriate limits on a service based on such
criteria as medical necessity or on utilization control procedures." 42 C.F.R.
' 440.230(d)(emphasis added).
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4. Interpretive Guidance in Law and Regulation
The Medicaid law and its implementing regulations do not provide for the funding of any particular AT devices. The law and regulations do not specify whether motorized wheelchairs or augmentative communication devices, for example, are covered items within the scope of any particular mandatory or optional category of coverage. Nor do they spell out a specific test of medical necessity, beyond the language quoted above, or other criteria governing when a person is eligible for a specific device. However, the federal law provides a general framework and the individual federal regulations often spell out, in better detail, what a particular category contemplates.
The federal law indicates, for example, that the primary goal of
Medicaid is to provide medical assistance to persons in need and to furnish them with
rehabilitation and other services to help them "attain or retain capability for
independence or self-care." 42 U.S.C. '
1396; see Meyers v. Reagan, 776 F.2d 241, 243 (8th Cir. 1985)(In finding the
plaintiff entitled to Medicaid funding for an augmentative communication device, the court
reasoned that obtaining or retaining the capability for independence is the "primary
goal of Medicaid."). The federal regulations provide that "each service must be
sufficient in amount, duration and scope to reasonably achieve its purpose." 42
C.F.R. ' 440.230(b). The law of your individual
state may also provide language that can be referenced for interpretive guidance. For
example, New York's law provides that Medicaid will pay for services and supplies which
are "necessary to ... correct or cure conditions in the person that ... interfere
with his capacity for normal activity ...." N.Y. Social Services Law ' 365-a.
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5. Application of Medicaid Law to Specific Requests for Assistive Technology
Most of the advocacy to obtain Medicaid-funded AT occurs at
administrative levels, either at fair hearings [Under federal Medicaid law, a Medicaid
recipient who has been denied approval for an AT device is entitled to a fair hearing. 42
U.S.C. ' 1396a(a)(3); 42 C.F.R. '' 431.200 - 431.250.] or in pre-hearing negotiations.
Although fair hearing decisions are not published through any official reporting service,
the National AT Advocacy Project has established an AT Resource Library which contains
AT-related fair hearing decisions from many states.
Litigation Regarding Augmentative Communication Devices
One fertile area for AT advocacy concerns the funding of augmentative communication devices (ACDs). ACDs include devices which produce a voice by electronic means. See Saideman, E., Helping the Mute to Speak: The Availability of Augmentative Communication Devices Under Medicaid, 17 N.Y.U. REV. L. & SOC. CHANGE 741 (1989/1990). These devices, which first became commercially available in the early 1980s, have undergone many technological advances in the last 10 years. With the cost of ACDs typically ranging from $4,000 to $8,000, some states have been reluctant to spend Medicaid dollars on ACDs.
To date, the only federal appellate court that has addressed Medicaid funding of ACDs has been the Eighth Circuit Court of Appeals in Meyers v. Reagan. 776 F.2d 241 (8th Cir. 1985). This issue will also soon be addressed by the Courts of Appeals for the Fifth and the Eleventh Circuits.
The 1985 Meyers case involved a mentally retarded adult with a speech handicap who lived at a residential care facility in Iowa. She sought Medicaid approval for an ACD known as a Voice 110 under the optional service category for speech, hearing and language disorders. Iowa had opted to offer services under the speech, hearing and language category. 776 F.2d at 243; see 42 C.F.R. ' 440.110(c)(1).
The Eighth Circuit rejected the state's argument that it had discretion to exclude ACDs from coverage under its Medicaid plan. The court reasoned that once Iowa choose to offer this optional category it bound itself to comply with the applicable law and regulations. It emphasized that the applicable regulation provides that the plaintiff is entitled to equipment provided by or under the direction of a speech pathologist and held that the state could not arbitrarily exclude the ACD from coverage. 776 F.2d at 244. See 42 C.F.R. ' 440.110(c)(1) providing that speech, language and hearing services "includes any necessary supplies and equipment."
In Fred C. v. Texas Health and Human Services Commission, [924 F.Supp. 788 (W.D.Tex. 1996).] the 47 year old plaintiff was a resident of a nursing home who sought an ACD, alternatively, under the home health care category, which includes medical supplies, equipment and appliances (called "durable medical equipment" in the Texas Medicaid program), [42 C.F.R. ' 440.70(b)(3); Tex. Admin. Code ' 14.202. Under this regulation, supplies, equipment and appliances are a mandatory service, not an optional service as the court suggests [see 924 F.Supp. at 791].] or the prosthetic devices category. 42 C.F.R. ' 440.120(c). Prosthetic devices is an optional Medicaid category. The parties acknowledged that the state Medicaid agency does fund ACDs for children under the age of 21, but had determined not to cover ACDs for adults. 924 F.Supp. at 789.
The court in Fred C. noted that the state's Medicaid program covers ACDs for children through its EPSDT program, under the durable medical equipment category. Relying on the Arizona Supreme Court decision in Salgado v. Kirschner, [179 Ariz. 301, 302, 878 P.2d. 659, 660 (1994)(en banc), cert. denied, ___ U.S. ___, 115 S.Ct. 1102 (1995).] the court held that "Texas Medicaid's selection of age as the sole criterion for denying benefits is wholly unrelated to the medical decision at hand and cannot meet the fundamental legal concept of reasonableness." 924 F.Supp. at 791.
The court also determined that the ACD was a covered item under the prosthetic devices category, rejecting the defendants' argument that it was not a prosthetic device because it did not replace vocal cords or other speech apparatus. Noting that the Texas Medicaid program covers hearing aids under the prosthetics category as devices used to receive communication, it reasoned that "logic dictates that an ACD to impart communication is also a prosthetic device." Id. at 792.
The defendants have appealed the Fred C. ruling to the Fifth Circuit Court of Appeals. The case has been fully briefed and was argued in early January 1997. As this article went to press, the parties were awaiting the Fifth Circuit's decision.
In Hunter v. Chiles, [944 F.Supp. 914 (S.D. Fla. 1996).] the court was asked to decide whether federal law allows Florida to deny adults coverage for ACDs as durable medical equipment under the home health care category [See 42 U.S.C. ' 1396d(a)(7); 42 C.F.R. ' 440.70(b)(3).] and whether it may deny coverage of ACDs for children under age 21 based on speculation that other payers may exist. Relying upon Fred C. and Salgado v. Kirschner, [See notes 38 and 42, supra.] the court ruled that ACDs are durable medical equipment under the home health care category and are covered under Florida's Medicaid program for adults. 944 F.Supp. at 920.
The seven year old plaintiff in Hunter sought an ACD under EPSDT as speech and language services, durable medical equipment, prosthetics or rehabilitation services. Id. at 920; see 42 C.F.R. '' 440.70(e), .110(c), .120(c) and .130(d). The defendants did not dispute the claim that ACDs are covered by EPSDT. Rather, they claimed that Medicaid was the payer of last resort and not required to pay for the plaintiff's device because of the availability of other payers. 944 F.Supp. at 920. In rejecting the defendants' argument, the court reasoned that defendants "cannot deny coverage because of speculation that other payers may exist." Id. at 920. The court then held that both plaintiffs met the test of medical necessity and were entitled to ACDs. Id. at 920-21. The writers have learned that the state has appealed the district court's decision in Hunter to the Eleventh Circuit Court of Appeals.
Advocates will be watching the Fred C. and Hunter
cases with keen interest as these cases may set some parameters for when AT is available
to individuals under Medicaid, generally, and for when ACDs are available specifically.
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B. Special Education and the Public Schools
For children up to age 21, the public school's special education
system can be a primary funding source for AT. The provisions discussed in this article
apply to students ages 3 through 21. Part H of the Individuals With Disabilities Education
Act (IDEA), which we do not discuss, covers children from birth through age two. 20 U.S.C.
' 1472(1); 34 C.F.R. ' 303.16(a). Early intervention services for 0-2 year
olds include AT devices and services. [20 U.S.C. '
1472(2)(E)(xiii). For a detailed analysis of the rights of infants and toddlers to AT
under Part H of IDEA, see Obtaining AT Under Part H of IDEA, AT ADVOCATE
(Neighborhood Legal Services, Inc., December 1996-January 1997). The AT ADVOCATE
newsletter is published by the National Asssistive Technology Advocacy Project .] This
section reviews the basic eligibility requirements, procedural safeguards and the
availability of AT under IDEA.
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1. Special Education Law: the Basics
The rules governing special education are in the federal Individuals with Disabilities Education Act (IDEA) and in federal regulations. 20 U.S.C. '' 1400 et seq., 34 C.F.R Part 300. IDEA guarantees eligible children a free appropriate public education (FAPE). Since all special education services, including assistive technology (AT), must be free, a family's income is never a factor. 20 U.S.C. ' 1401(a)(18). The local educational agency (LEA) is responsible for providing special education services without cost to the parents or student. Id. '' 1412(1), 1414(a)(6).
IDEA authorizes the provision of special education and related services to qualified students with disabilities. "Special education" is instruction designed to meet a student=s unique needs. It includes assistance by a special education teacher to the student or to the regular education teacher. It can occur in a regular class, a resource room, a special class for all or part of the day, or in a special school. Id. ' 1401(a)(16); 34 C.F.R. ' 300.17. To qualify for services, a child must have a disability, such as a speech, health, orthopedic, hearing or visual impairment, mental retardation, or a learning or emotional disability, which interferes with the ability to benefit from a regular education program. 20 U.S.C. ' 1401(a)(1); 34 C.F.R. ' 300.7.
"Related services" are developmental, corrective and support services required to assist a student to benefit from education. They include, among other things, occupational and physical therapy, speech pathology, counseling and health services. 20 U.S.C. ' 1401(a)(17); 34 C.F.R. ' 300.16.
The U.S. Supreme Court, in Board of Education v. Rowley, ruled that a school is not required to provide the "best" education possible or one designed to maximize potential. However, the program must be based on the child's unique needs and be designed to enable the student to benefit from the education. 458 U.S. 176, at 188-189 (1982).
IDEA requires that students receive special education services in the least restrictive environment. Removal from regular classes should only occur when a child cannot be successfully educated in regular classes with supplemental services. If removed for part of the day, the student must still be educated in the mainstream as much as possible. 20 U.S.C. ' 1412(5)(B); 34 C.F.R. ' 300.550.
The child's needs and the services to be provided must appear in a written individualized education program (IEP). 20 U.S.C. ' 1401(a)(20); 34 C.F.R. ' 300.346.
The IEP must be developed at a meeting with a group of people, including the parents, who are knowledgeable about the child. The parents are considered "equal participants" with school district officials in developing the IEP.34 C.F.R Part 300, Appendix C, Quest. 26.
The committee or multi-disciplinary team which develops the IEP is known by different names in different states. We will call it the IEP committee in this article.
The IEP must specify the placement, all special education services,
any supplementary aids or related services and how often each will be provided. The IEP
committee must review the IEP at least annually.Id. ' 300.343(d).
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2. AT in the Schools -- What is it?
Since 1990, IDEA has included definitions for AT devices and services that are similar to the definitions found in the Tech Act..
Under IDEA, an "AT device" is one used to maintain or improve functional capabilities of a person with a disability; an "AT service" is one that assists in the selection, acquisition or use of an AT device. AT services include evaluations, adaptations, maintenance or repair of AT devices. AT services also include training or technical assistance for professionals, the individual or, where appropriate, the family. 20 U.S.C. '' 1401(a)(25) and (a)(26); 34 C.F.R. '' 300.5 and 300.6. The more common AT devices used in the schools include computer equipment and adaptations; augmentative communication systems; assistive listening devices; and adaptive seating systems. See representative list of AT devices in section I, supra.
IDEA's legislative history stresses the importance of AT in the lives of students. The House Report notes that advances in AT provide new opportunities for students to participate in educational programs. For many, AT will redefine an "appropriate placement in the least restrictive environment." House Report No. 101-544, 5 U.S. Code Cong. & Admin. News, p. 1730 (1990).
The federal regulations specify that AT may be considered as
special education, related services or supplementary aids and services to ensure placement
in the least restrictive environment. These services must be approved by the IEP committee
and listed in the IEP. Id. ' 300.308;
U.S. Dept. of Educ., Office of Special Education Programs, Policy Letter to S. Goodman
(8/10/90), 16 Educ. Handicapped L. Rep. 1317.
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a. Send Request to the IEP Committee
Requests for special education services, including AT, should be
made in writing to the IEP committee. Under IDEA, this starts the referral process to
determine what is necessary. Id. '
300.531
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b. Evaluations at LEA Expense
Since many special education personnel are unfamiliar with the AT devices available to students, it is important to obtain a good AT evaluation. In many cases, it will be necessary to go outside the school system to obtain the evaluation.
The IEP committee must obtain, without charge to the student or parents, an appropriate evaluation to determine the student's need for AT. 34 C.F.R. ' 300.530; U.S. Dept. of Educ., Office of Special Education Programs, Policy Letter to J. Fisher (12/4/95), 23 Individuals with Disabilities Educ. L. Rep. 565.
If the parents disagree with the school's evaluator or believe that
the evaluation was not appropriate, they can ask for an independent evaluation at school
expense. The school's special education personnel must then either agree to pay for the
independent evaluation or commence a due process hearing to determine whether the original
evaluation is appropriate under IDEA. 34 C.F.R. '
300.503(b); U.S. Dept. of Educ., Office of Special Educations Policy Letter to J. Fisher.
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c. Criteria for AT Approval
Under the Board of Education v. Rowley standard, the IEP
committee must approve an AT device if it is needed to ensure reasonable educational
progress in the least restrictive setting. See note 60, supra. AT should be
approved if it will enable a child to remain in a regular classroom. 34 C.F.R. ' 300.550(b)(2).
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d. Who Owns the AT Device?
When a student moves to a new school district or leaves school upon the completion of their special education studies, does the AT device go with the student? Since IDEA does not require that title to this property pass to the student or parent, the general rule is that the AT device remains the property of the school. Under this general rule, the device remains with the school upon the student's departure.
Under an interpretation of IDEA by the United States Department of Education, some protection is offered to the family that moves and leaves an AT device behind. Under that interpretation, if the new school's IEP committee does not recommend purchase of the AT device and the parents request a hearing, the new school must provide the device until the case is resolved. See U.S. Dept. of Educ., Office of Special Education Programs, Policy Letter to Rieser (7/17/86), 2 Educ. Handicapped L. Rep. 211:403.
The writers understand that in some states steps have been taken to
allow a graduating special education student to retain an AT device upon graduation.
Although IDEA does not require this, it is important that you determine whether special
provisions in your state's special education law or policy would require that a student be
permitted to keep AT purchased by the school. For students coming out of the special
education system, one source of AT could be through your State Vocational Rehabilitation
agency. See Section IV.C, infra.
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4. Appeals
A parent who disagrees with a proposed IEP can request a hearing. 20 U.S.C. ' 1415(b)(1)(E).
The parent can be represented by an attorney or other advocate and can present witnesses and other evidence to support the appeal. Id. ' 1415(d)
If the parent wins the hearing or any subsequent administrative or court appeal, the parent's attorney may recover attorney's fees as the prevailing party. Id. ' 1415(e)(4)(B).
The current program remains in place during the appeal. Id. ' 1415(e)(3); 34 C.F.R. ' 300.513.
If last year's IEP provided for a special computer and the new IEP
eliminates it, an appeal guarantees that the computer is provided during the course of the
appeal.
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5. Section 504 of the Federal Rehabilitation Act
Children whose disabilities do not meet special education criteria, who still need special assistance, including AT, are covered by Section 504 of the Rehabilitation Act. 29 U.S.C. ' 794; 34 C.F.R. Part 104.
Section 504 requires reasonable steps to ensure that students with disabilities have access to the school's full range of programs and activities. 34 C.F.R. '' 104.4, 104,22, 104.34, 104.37. See Eldon (MO) R-I School District, Educ. Handicapped L. Rep. 352:145 ( 1/16/86). If such a student needs an AT device to fully participate in school activities, Section 504 may require the school to provide it. U.S. Educ. Dept. Joint Policy Memorandum, 18 Individuals with Disabilities Educ. L. Rep. 116, 118 (9/16/91); Colton Joint (CA) Unified Sch. Dist., 22 Individuals with Disabilities Educ. L. Rep. 895 (OCR, 4/7/95). Section 504 will, in many cases, also require payment for training, repairs and maintenance.
Section 504 is most appropriate in those cases where a child is fully capable, academically, of participation in the mainstream without special academic assistance, but needs some type of special equipment to function in the regular classroom. For example, consider the case of a child with a physical disability who cannot sit at a typical desk. Since section 504 requires that the school take reasonable steps to ensure participation in a regular classroom, purchase of a specially designed desk would probably be required under section 504.
There may be cases where a student with a disability is not entitled to AT under special education criteria, but may be entitled to it under section 504. U.S. Dept. of Educ., Office of Special Programs Policy Letter to Teague, (2/15/94), 20 Individuals with Disabilities Educ. L. Rep. 1462.
Consider, for example, the case of Larry, a high school freshman who has a vision impairment. Larry is able to pass all his courses with a B average. He would like to use his school's computer lab, which is available to all students, but he cannot read from a conventional computer screen because of his visual impairment. Larry and his parents want the school to purchase a specially designed computer monitor to allow Larry to overcome his visual limitations and use the school's computer lab.
Under the Board of Education v. Rowley criteria, See
note 60, supra. Larry is arguably not entitled to the special computer monitor as a
special education service as he is able to benefit from his education without this
additional device. Under section 504, since the computer lab is available to all students,
the school must take reasonable steps to ensure that Larry can have full access to the
computer lab despite his disability. Under the facts presented, the school may be able to
meet its section 504 obligation by obtaining an overlay to magnify the screen on an
existing monitor, at less expense, if that will provide Larry with reasonable access to
the computer lab in question.
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a. Procedures for Obtaining AT under Section 504
Schools must develop procedures to determine Section 504 eligibility and evaluate the needs of children with disabilities not covered by IDEA. U.S. Dept of Educ., Joint Policy Memorandum, 18 Individuals with Disabilities Educ. L. Rep. 116 (9/16/91). Schools may use special education procedures and the IEP to do this. 34 C.F.R. '' 104.33(b)(2), 104.36. If not, their procedures must include the following:
1. There must be a comprehensive, individualized evaluation of needs, with regular re-evaluations. Id. ' 104.35.
2. Decisions must be made by a group of people, including the parents, who are knowledgeable about the child, the evaluation information and the placement options. Id.
3. The student's needs and services to be given must be identified in writing. U.S. Dept. of Educ., Office of Civil Rights Staff Memorandum, 14 Educ. Handicapped L. Rep. 307:01 (10/24/88).
4. Parents who disagree have due process rights, including the right to a hearing, but do not have the right to an independent evaluation at school district expense nor to continued services pending an appeal. 34 C.F.R. ' 104.36.
UNITED STATES DEPARTMENT OF EDUCATION POLICY LETTERS REGARDING WHEN ASSISTIVE TECHNOLOGY IS AVAILABLE FOR CHILDREN WITH DISABILITIES
The U.S. Department of Education's Office of Special Education Programs (OSEP) has issued many Policy Letters governing when a school must provide AT to students with disabilities. The key OSEP Policy Letters are summarized below by category.
I. Requirements to Provide, Generally
! OSEP Policy Letter to S. Goodman, 16 Educ. Handicapped L. Rep. 1317 (8/10/90)
- Cannot preclude provision of AT; rather, must determine need case-by-case.
- AT may be a special education service, a related service or a supplementary aid or service used to maintain a student in the least restrictive setting.
- Includes AT devices and services.
- AT is required if needed to ensure that student receives a free appropriate public education (FAPE).
- IEP must include a statement of the nature and amount of service.
! OSEP Policy Letter to B. Orenich, Educ. Handicapped L. Rep. 213:166 (8/9/88)
- When AT is used as a "supplemental aid and service" to educate a student in the regular education environment, it must be included in the IEP.
! OSEP Policy Letter to R. Shelby, 21 Individuals with Disabilities Educ. L. Rep. 61 (1/26/95)
- When AT (large print books) used as a "supplemental aid and service" to educate a student in the regular education environment, any modifications to the regular educational program must be included in the IEP.
! OSEP Policy Letter to D. Naon, 22 Individuals with Disabilities Educ. L. Rep. 888 (1/26/95)
- There is no federal "approved list" of AT devices and services covered by IDEA.
- Students are entitled to AT as necessary to ensure a FAPE.
- The question is the relationship between the educational needs of the student and the AT device or service.
! OSEP Policy Letter to Hon. T. Libous, 17 Individuals with Disabilities Educ. L. Rep. 419, 420 (11/15/90) - Even if AT were considered only a related service, it could be provided as the sole component of a summer program.
I. Examples
! OSEP Policy Letter to Anonymous, 13 Educ. Handicapped L. Rep. 213:198 (2/13/89)
- The related services list is not exclusive. It includes orientation and mobility training for students who are blind.
! OSEP Policy Letter to Hon. W. Teague, 20 Individuals with Disabilities Educ. L. Rep. 1462 (2/15/94)
- The related services list is not exclusive. It also includes large print books and adapted spoons.
! OSEP Policy Letter to Anonymous, 18 Individuals with Disabilities Educ. L. Rep. 1037 (4/6/92)
- AT devices include an FM auditory trainer.
! OSEP Policy Letter to C. Lambert, 18 Individuals with Disabilities Educ. L. Rep. 1039 (4/24/92) - Calculators may qualify as an AT device.
II. Evaluations
! OSEP Policy Letter to J. Fisher, 23 Individuals with Disabilities Educ. L. Rep. 565 (12/4/95)
- The IEP team must assess "the student's functional capabilities and whether they may be increased, maintained, or improved through the use of AT devices or services."
- A parent has the right to an independent AT evaluation, at school expense, under the terms of 34 C.F.R. ' 300.503(b), if the parent disagrees with the evaluation obtained by the school.
! OSEP Policy Letter to T. Bachus, 22 Individuals with Disabilities Educ. L. Rep. 629 (1/13/95) - Hearing, vision, communication and motor abilities are properly included in the school's AT assessment.
III. Personally Prescribed Devices
! OSEP Policy Letter to J. Stohrer, 13 Educ. Handicapped L. Rep. 213: 211, 212 (4/20/89)
- If a wheelchair is required as a related service under 34 C.F.R.
' 300.13, the local education agency (LEA) must provide the service at public expense and without charge [see 34 C.F.R. ' 300.4(a)], regardless of whether the parents possess a wheelchair or can obtain one through private insurance.- Related services include transportation in and around school buildings and can involve specialized equipment, such as a wheelchair.
- The LEA is not required to provide the wheelchair for personal use while the student is not in school.
! OSEP Policy Letter to P. Seiler, 20 Individuals with Disabilities Educ. L. Rep. 1216 (11/19/93); OSEP Policy Letter to J. Galloway, 22 Individuals with Disabilities Educ. L. Rep. 373 (12/22/94)
- A hearing aid is covered under the definition of "AT device."
- Historically, the LEA is not required to provide a personal device which a student would require whether or not in school.
- However, if the child requires a hearing aid in order to receive a FAPE, the school must provide it at no cost to the child or the parent(s) in accordance with 34 C.F.R. ' 300.308.
! OSEP Policy Letter to T. Bachus, 22 Individuals with Disabilities Educ. L. Rep. 629 (1/13/95) - If a student requires eyeglasses to receive a FAPE, the school must provide them at no cost to the parents.
IV. Home use
! OSEP Policy Letter to Anonymous, 18 Individuals with Disabilities Educ. L. Rep. 627 (11/21/91)
- If IEP team determines that an AT device is needed for home use to ensure a FAPE, it must be provided.
- Example given: closed circuit TV for student who is blind and needs to use the device at home to complete homework assignments.
V. Funding Sources
! Office of Special Education and Rehabilitation Services (OSERS) Policy Letter to Rose, 18 Individuals with Disabilities Educ. L. Rep. 531 (9/19/91)
- The AT must be at no cost to parent or child.
- The LEA may access Medicaid or private insurance
A. Use must be voluntary; cannot deny services if parent refuses to authorize use.
B. Use of other insurance must not result in any cost to parent, such as:
1. copayment
2. deductible
! OSEP Policy Letter to Dr. O. Spann, 20 Individuals with Disabilities Educ. L. Rep. 627 (9/10/93); OSEP Policy Letter to W. Cohen, 19 Individuals with Disabilities Educ. L. Rep. 278 (7/9/92)
- A parent's use of insurance is voluntary. If the parents refuse to consent to use of insurance, special education services cannot be denied.
! OSEP Policy Letter to Anonymous, 21 Individuals with Disabilities Educ. L. Rep. 1057 (8/9/94); 34 C.F.R. ' 300.6(e)(f).
- If parents agree to use family-owned AT to fulfill IEP, school is responsible for maintenance and repair if damaged on school bus or at school.
- If the school did not use the family-owned device, it would be responsible for providing and maintaining a needed device.
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C. The State Vocational Rehabilitation (VR) Agency
1. State VR Agencies: What are They?
Congress, pursuant to Title I of the Rehabilitation Act, [29 U.S.C. '' 701 et seq.; 34 C.F.R. Part 361. Final amendments to the vocational rehabilitation regulations appeared in the Federal Register on February 11, 1997. 62 Fed. Reg. 6308 (Feb. 11, 1997). These amendments are effective March 13, 1997. Id. Citations to the regulations are as amended.] gives money to states to provide vocational rehabilitation (VR) services for persons with disabilities. To receive funding, a state must submit a plan consistent with the law. 29 U.S.C. ' 721.
It must designate a single state agency to administer the plan unless it designates a second agency to provide services to individuals who are blind. Id. ' 721(a)(1).
VR agencies can fund a wide range of goods and services, including
"rehabilitation technology," that are connected to a person's vocational goal.
Congress has stated that VR services are to enable individuals to maximize employability,
self-sufficiency, independence and integration into the work place and the community
through comprehensive and coordinated state-of-the-art programs. Id. ' 701(b)(1).
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2. Basic Eligibility Criteria
To receive services an individual must be disabled [See id. ' 706(8)(A).] and require VR services to prepare for, enter, engage in, or retain gainful employment. Id. ' 722(a)(1). Employability is defined as full or part-time competitive employment to the greatest extent practicable, supported employment or other employment consistent with the individual's strengths, abilities, interests and informed choice. Id. ' 706(5); 34 C.F.R. ' 361.5(b)(15).
Persons must show a mental, physical or learning disability that interferes with the ability to work. The disability need not be so severe as to qualify the person for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits. The disability must only be a substantial impediment to employment. 29 U.S.C. ' 706(8)(A). Persons who receive SSDI or SSI benefits are presumed to meet the disability criteria. 34 C.F.R ' 361.42(a)(3). Although VR services may be denied if a person cannot benefit from them, a person is presumed capable of employment despite the severity of a disability unless the VR agency shows by clear and convincing evidence that he or she cannot benefit from services. 29 U.S.C. ' 722(a)(4); 34 C. F.R. ' 361.42(a)(2).
Prior to determining that a person with a severe disability is incapable
of benefitting from VR services, the state VR agency must conduct an extended evaluation.
34 C.F.R. ' 361.42(d).
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3. The Individual Written Rehabilitation Program
After eligibility is established, the individual and the VR counselor must develop an Individual Written Rehabilitation Program (IWRP). 29 U.S.C. ' 722(b). Any service to be provided or funded by the VR agency must be specified on the IWRP. It is to be jointly developed, agreed to and signed by the individual and the counselor. 34 C.F.R. ' 361.45(b)(1). The IWRP should enable the individual to achieve the agreed upon employment objectives and must include the following: 29 U.S.C. ' 722(b)(1)(B).
!
Long term employment goal! Intermediate rehabilitation objectives
! Specific VR services, with projected start-up dates
! Rehabilitation technology (i.e., AT) services to be provided
! Specific on-the-job and related personal assistance services, if necessary
! Assessment of the expected need for post employment and extended services
! A description of how the individual was informed about and involved in choosing among alternative goals, objectives, services and providers
! Due process rights and availability of the Client Assistance Program
The IWRP must be reviewed annually and, if necessary, amended to
meet changing needs and abilities. Id. '
722(b)(2).
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4. Available Services
VR services are defined as "any goods or services to render an individual with a disability employable." Id. ' 723(a). Services must include, but are not limited to, the following: Id. ' 723(a); 34 C.F.R. ' 361.48(a).
!
The assessment to determine eligibility and needs! Counseling, guidance and job placement services to maintain, regain, or advance in employment
! Vocational and other training, including higher education and the purchase of tools, materials and books
! Rehabilitation technology services (i.e., AT), including vehicular modification
! Supported employment
! Occupational licenses, tools, equipment, initial stocks and supplies
! Personal assistance services while receiving VR services
! Transportation, including van purchase [Under the new regulations, transportation is defined as "travel and related expenses that are necessary to enable an applicant or eligible individual to participate in a [VR] service." 34 C.F.R. ' 361.5(b)(49). A note, following the quoted regulation, specifically states that "[t]he purchase and repair of vehicles, including vans" is an example of an expense that would meet the definition of transportation. Id. (Note).]
! Interpreter services for individuals who are deaf and readers for individuals who are blind
! Telecommunications and other technological aids and devices
! Physical or mental restoration to reduce or eliminate impediments to employment
! Maintenance for additional costs incurred during rehabilitation
The rehabilitation technology services envisioned by Title I of the
Rehabilitation Act can take many forms and are in no way limited by the Act. The State
Plan must also describe the "manner in which the broad range of
rehabilitation technology services will be provided," including training and the
provision of AT. Id. ' 361.48(b)
(emphasis added).
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5. Financial Need Criteria
There is no requirement that a state consider financial need when providing VR services. Id. ' 361.54(a).
If a state VR agency chooses to establish a financial needs test it must establish written policies which govern the determination of financial need and which identify the specific VR services that will be subject to the financial needs test. Id. ' 361.54(b)(2).
The following services must be provided without regard to financial
need: diagnostic services; counseling, guidance and referral services; and job placement. Id.
' 361.54(b)(3).
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6. Maximization of Employability
The purpose of the Rehabilitation Act is to "develop and implement . . . comprehensive and coordinated programs of vocational rehabilitation and independent living for individuals with handicaps in order to maximize their employability, independence and integration into the work place and the community." 29 U.S.C. ' 701 (emphasis added).
This language was added by 1986 amendments. Pub. L. 99-506, ' 101. The legislative history emphasizes Congressional intent: "[T]he overall purpose of the Act is to develop and implement comprehensive and coordinated programs of rehabilitation for handicapped individuals which will maximize their employability, independence and integration into the work place and the community. The Committee views [the Act] as a comprehensive set of programs designed to meet the broad range of needs of individuals with handicaps in becoming integrated into the community and in reaching their highest level of achievement." S. Rep. No. 388, 99th Cong., 2d Sess. 5 (1986)(emphasis added), as quoted in Polkabla v. Commission for the Blind, 183 A.D.2nd 575, 576, 583 N.Y.S.2d 464, 465 (1st Dept. 1992).
Several courts have applied this standard to fund VR services which a VR agency had denied. [See Buchanan v. Ives, 793 F.Supp. 361 (D. Me. 1991)(A "cost efficiency analysis" cannot be the major determinant to deny funding of services and the goal of "maximizing employability" cannot be equated with the ability to do any job. Title I requires a highly individualized analysis of the client's goals and, within reason, services to enable the client to reach highest possible level of achievement.); Polkabla, supra, note 116 (Title I requires services to enable blind paralegal to reach the highest achievable vocational goal, college and law school, and not merely suitable employment.); Chirico v. Office of Vocational and Educational Services for Individuals with Disabilities (VESID), 211 A.D.2d 258, 627 N.Y.S.2d 815 (3rd Dept. 1995)(Funding for voice activated computer for job-related paper work at home to enable individual to reach highest level of achievement. Attainment of position as guidance counselor by working two to four extra hours, six days a week, was not his full potential.); Indiana Dept. of Human Services v. Firth, 590 N.E.2d 154 (Ind. Ct. of App., First Dist. 1992)(Continued VR services while attending law school. The VR agency found person's deafness was not a substantial handicap to employment as he had the present capacity to work as a writer. Notwithstanding present writing abilities, court cited need for VR-funded interpreter services to maximize employability to become a lawyer.)]
One other court, in an unreported opinion, has held to the
contrary. See Romano v. Office of Vocational and Educational Services to Individuals
with Disabilities, N.Y. Slip Op 00584 (3rd Dept., January 11, 1996)(Funding for
Masters in Social Work degree, prior to entry into profession, not required to enable
individual to reach highest achievable goal of social work in therapeutic counseling, nor
did the individual's disability preclude advancement in chosen profession.).
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7. Comparable Services Requirement
VR agencies are the payer of last resort for many services. This means they will not pay for a service if a similar benefit is available through some other agency or program. 29 U.S.C. ' 721(a)(8).
For example, if an applicant qualifies for personal assistance services through Medicaid, the VR agency will not provide those services. By contrast, the VR agency cannot deny payment for college tuition because an individual could obtain student loans. Student loans, which must be repaid, are not similar benefits. U.S. Dept. of Educ., Rehab. Services Admin., Policy Directive RSA-PD-92-02 (11/21/91). Additionally, a person does not have to exhaust similar benefits if the application process for the similar benefit would delay services to an individual at extreme medical risk; if an immediate job placement would be lost due to delay; or if diagnostic services, VR counseling, vocational or other training, job placement or rehabilitation technology (i.e., AT) is involved. 29 U.S.C. '' 721(a)(8), 723(a)(12); 34 C.F.R. ' 361.54(b) and (c).
Two applications of this requirement warrant further discussion.
The first involves the interplay between a public school's obligation to provide a free
appropriate public education under the Individuals with Disabilities Education Act (IDEA)
[See Section IV.B, supra.] and the VR agency's responsibilities when a child
is in "transition" from the special education system to adult programs. The
second involves the interplay between a college or university's obligation to provide
auxiliary aids and services under either Section 504 of the Rehabilitation Act (Section
504) [29 U.S.C. ' 794.] or the Americans with
Disabilities Act (ADA) [42 U.S.C '' 12101 et
seq.] and the VR agency's obligation to provide those services.
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a. Purchase of AT for Special Education Students in Transition: Who Pays?
IDEA requires that no later than age 16 school districts include in each student's Individualized Education Plan (IEP) a transition plan to aid in the student's move to adult life. 34 C.F.R. ' 300.346(b)(1). As part of the plan, schools must identify appropriate adult service providers and foster linkages with those agencies. Id. Many VR agencies are unwilling to get involved with students until their right to an appropriate special education is over, citing the comparable benefits requirement.
Where AT is involved, this can be a significant problem. As noted in the special education discussion above, schools do not normally consider AT devices purchased to ensure an appropriate education to be the student's property. See Section IV.B.3.d, supra.
If the AT device will also be essential for college or employment, significant delays will result if the VR process does not begin until after a student leaves school. It also makes little fiscal sense for a school to provide AT, merely to be surrendered upon graduation with the student then seeking another device from the VR agency.
What is the VR agency's responsibility under these circumstances? The regulations require the State Plan to develop policies to facilitate the transition from the special education system to the VR system, including the development of an IWRP for students eligible for VR services before the student leaves the school setting. 34 C.F.R. ' 361.22(a)(1). The legislative history to the Rehabilitation Act Amendments of 1992 [Pub. L. 102-569.] states that school districts remain responsible for ensuring a free appropriate public education to students during the transition years. S. Rep. No. 357, 102d Cong., 2d. Sess., 33 (1992), as quoted at 34 C.F.R. ' 361.22, Note. However, the law's intent is to ensure that "there is no gap in services between the education system and the vocational rehabilitation system." Id.
If the graduating student clearly will need the AT device for
educational, training or employment purposes, a reasonable approach would be to have the
VR agency purchase the device in the first instance or purchase it from the school
district. The need for the device would continue to be reflected in the IEP with reference
to the VR agency as payer (or purchaser upon transfer). The AT device would also appear in
the IWRP which is developed before the child finishes school. There is nothing to prohibit
the VR agency from purchasing the AT outright for the student while still in special
education or from purchasing it from the school district. The IDEA regulations envision
other agencies providing services to students in transition, including VR agencies. 34
C.F.R. ' 300.347. The VR regulations require
that the State Plan specify the respective financial responsibility of the various state
agencies serving the student. 34 C.F.R. '
361.22(a)(2)(v).
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b. AT for the College Student: Who Pays?
A similar problem arises when a VR agency refuses to provide AT for a college student, arguing that the college's responsibility under the ADA or Section 504 is a comparable benefit. See "Several Vocational Agencies Stop Paying For Auxiliary Aids," Section 504 Compliance Handbook, Supp. No. 213, p. 1 (Thompson Publishing Group, August 1996).
The regulatory history to the Section 504 regulations governing colleges indicates that the Department of Education envisioned that colleges could normally meet their obligation to provide auxiliary aids "by assisting students in using existing resources for auxiliary aids such as state vocational rehabilitation agencies and private charitable organizations. Indeed, the Department anticipates that the bulk of auxiliary aids will be paid for by state and private agencies, not by colleges or universities." 34 C.F.R. Part 104, App. A, note 31 (emphasis added). The purpose of these comments was to highlight that the provision of auxiliary aids would not be an undue burden on the colleges. See U.S. v. Board of Trustees for U. of Ala., 908 F.2d 740, 745 (11th Cir. 1990).
Addressing this question relative to Section 504, the Seventh Circuit, in Jones v. Illinois Dept. of Rehabilitation Services, held that the state VR agency has the primary responsibility to provide auxiliary aids in the form of interpreter services. 689 F.2d 724 (7th Cir. 1982).
In dicta, the court also noted its approval of the district court's opinion that the similar benefits requirement did not even apply to colleges or universities. Id. at note 6. In Schornstein v. N.J. Div. of Voc. Rehab., the court held that the VR agency's policy of refusing to provide interpreter services to college students violated Title I of the Rehabilitation Act. 519 F. Supp. 773 (D. N.J. 1981), aff'd, 688 F.2d 824 (3d Cir. 1982).
The regulations under Section 504 exempt colleges from providing auxiliary aids and services for personal use or study. 34 C.F.R. ' 104.44(d)(2). The relevant ADA regulations also exempt personal devices and services. 28 C.F.R. '' 35.135 and 36.306.
Therefore, if a college is under no obligation to provide AT in
such circumstances, there is no comparable benefit. Finally, as noted above, AT
(rehabilitation technology) is exempt from the comparable benefit requirement. The
Department of Education's Rehabilitation Services Administration is preparing a policy on
the VR agency's role in providing auxiliary aids for college students. See "Several
Vocational Agencies Stop Paying For Auxiliary Aids," Section 504 Compliance
Handbook, supra, note 133, p. 3.
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8. Appeal and Hearing Rights
Anyone seeking or receiving VR services who is dissatisfied with a decision by the VR agency has a right to appeal. The agency must notify the individual of the reasons for the decision, the right to appeal and the availability of the Client Assistance Program. 29 U.S.C. ' 722(a)(6).
The Director of the state VR agency must establish procedures governing appeals, which must include the right to an administrative hearing before an impartial hearing officer (Administrative Law Judge or ALJ). Id. ' 722(d)(2).
The individual has the right to be represented at the hearing by an attorney or other advocate. Both the individual and the agency can present evidence and cross examine witnesses. 34 C.F.R. ' 361.57(b)(3).
The ALJ's decision is final and must be implemented unless the VR agency Director decides to review it. Id. ' 361.57(b)(6). The Director has 20 days from the mailing of the ALJ's decision to notify the individual that he or she will review the decision. 29 U.S.C. ' 722(d)(3)(A).
If the Director opts to review the hearing decision, the individual has the right to submit additional evidence. 34 C.F.R. ' 361.57(b)(8). The Director must render a final decision within 30 days of notice to the individual of the intent to review the ALJ's decision. id. ' 361.57(b)(10). The Director cannot overturn or modify the ALJ's decision unless there is "clear and convincing evidence" that the decision is "clearly erroneous on the basis of being contrary to Federal or State law, including policy." 29 U.S.C. ' 722(d)(3)(C)(i); 34 C.F.R. ' 361.57(b)(9).
While a hearing or other appeal is pending, and until the final decision on the appeal, all previously approved benefits under the IWRP must be continued unless the individual requests otherwise. 29 U.S.C. ' 722(d)(5).
The majority of courts have found no private right of action directly under Title I of the Rehabilitation Act. Johnson-Lloyd v. Vocational Rehabilitation Office, 813 F. Supp. 1120, 1123-24 (E.D.Pa. 1993); McGuire v. Switzer, 734 F. Supp. 99, 111 & n. 11 (S.D.N.Y. 1990); Ryans v. New Jersey Comm'n for the Blind and Visually Impaired, 542 F. Supp. 841, 845-46 (D.N.J. 1982).
However, an individual may appeal the final decision under 42
U.S.C. ' 1983. Marshal v. Switzer, 10
F.3d 925 (2nd Cir. 1993); Scott v. Gloeckler, 92-CV-6194T (W.D.N.Y. 1993); Ryans,
supra, note 151. An appeal may also be available in state court, under state laws
regarding the review of state administrative agency determinations. See, e.g.,
Article 78 of the New York Civil Practice Laws and Rules, governing appeals from final
state agency hearing decisions.
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9. The Client Assistance Program
The Client Assistance Program (CAP) is funded under the Federal Rehabilitation Act. 29 U.S.C. ' 732. CAP is designed to provide information to individuals concerning their rights in the VR process and to provide advocacy services in resolving disputes, including representation at fair hearings. Any time an individual does not understand the proposed IWRP, rights under the Rehabilitation Act, or receives an adverse decision from the VR agency, he or she should consider contacting the appropriate CAP office for assistance.
In reality, CAP may not have sufficient resources in your state to
handle all of the needed fair hearings and litigation. We hope that our readers from the
Protection and Advocacy, Legal Services and Legal Aid networks will strongly consider
taking on these cases, particularly those involving AT.
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To date, very few advocates from the Legal Services and Legal Aid networks have become involved in assistive technology advocacy. There has been more advocacy within the Protection and Advocacy network; however, outside of those advocates specifically working under PAAT grants, the advocacy has been sporadic. Many Client Assistance Program advocates have been involved with AT advocacy, but it has often been limited to issues dealing directly with funding through the state VR agency.
This article was written with the hope that many Legal Services, Legal Aid, P&A and CAP advocates will consider AT advocacy as a casework priority. For those already working on AT cases, the hope is that you will expand your thinking beyond one primary funding source and look to others.
The discussion of the three topics, above, has not been exhaustive,
but it should provide a solid foundation for any advocate entering this area of advocacy.
It should also provide the experienced advocate a handy reference guide to the underlying
law, regulations and policy governing the funding of AT through Medicaid, special
education programs and state VR agencies. Readers who wish to explore these topics in
greater depth or who wish to explore other AT funding sources, should contact the National
AT Advocacy Project
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