AT ADVOCATE

Newsletter of the National Assistive Technology Advocacy Project
A Project of Neighborhood Legal Services, Inc.
295 Main Street, Ste. 495 · Buffalo, New York 14203 · (716) 847-0650
(716) 847-0227 FAX · (716) 847-1322 TDD · e-mail: nls01@sprynet.com · Web Page: http://www.nls.org
Supported by the National Institute on Disability and Rehabilitation Research,
U.S. Department of Education, Through a Subcontract with United Cerebral Palsy Associations.

Volume II   Issue 1                                                             December 1996/January 1997

 EARLY INTERVENTION SERVICES
UNDER PART H OF IDEA
Copyright 1997, Neighborhood Legal Services, Inc.

INTRODUCTION

      One of the newer programs serving children with disabilities is authorized by Part H of the federal Individuals With Disabilities Education Act (IDEA). 20 U.S.C. §§ 1471 -1485; 34 C.F.R. Part 303. Often referred to simply as Part H or the Early Intervention Program, this program authorizes funding for a wide range of services for infants and toddlers from birth through age two.

     When enacting Part H, Congress found that there was an urgent and substantial need to enhance the development of infants and toddlers with disabilities; to minimize their potential for developmental delay, need for special education or institutionalization; to maximize their potential for independent living; and to enhance the capacity of families to meet the special needs of infants and toddlers with disabilities. 20 U.S.C. §1471(a).

     This article describes the Early Intervention Program; explains what services are available through the program, including assistive technology (AT) services and how to apply for them; explains how a child's Individualized Family Service Plan (IFSP) is developed; and details the options available when a family wishes to challenge the denial of services.

 WHAT IS THE EARLY
INTERVENTION PROGRAM?

      Part H requires each state to develop a "statewide system of coordinated, comprehensive, multidisciplinary, interagency programs providing appropriate early intervention services to all infants and toddlers with disabilities and their families." 20 U.S.C. § 1476(a); 34 C.F.R. § 303.1(a). Each state must designate a lead agency which bears responsibility for overall implementation, administration and monitoring of the Early Intervention Program. 20 U.S.C. § 1476(9); 34 C.F.R. § 303.142. Although a number of public agencies may be involved in delivering services, the lead agency must also have a procedure in place to ensure that services are provided in a timely manner pending resolution of any disputes between those agencies or the service providers. 20 U.S.C. § 1476(b)(9)(D).

 To be eligible for services a child must be under age three and have a developmental delay in one of five areas of development:

 Physical (including vision and hearing)
Cognitive
Communication
Social or Emotional
Adaptive Development or Self-help Skills 

     A child is also eligible if he or she has a physical or mental condition which is very likely to result in developmental delay in one of the same five areas of development. Finally, states have the option of including children "who are at risk of having substantial developmental delays if early intervention services are not provided." 20 U.S.C. § 1472(1); 34 C.F.R. § 303.16. Each state must specify the criteria by which it measures developmental delay. 20 U.S.C. § 1476(b)(1); 34 C.F.R. § 303.300.

     All services under the Early Intervention Program must be provided at no cost unless Federal or State law allows for payment by families, and States may establish a sliding scale of fee payments. 20 U.S.C. § 1472(2)(B); 34 C.F.R. § 303.12(a)(1)(iv). However, if the State guarantees a free appropriate public education from birth, the State may not charge parents for any services under that State law which are provided to children eligible for early intervention services. 34 C.F.R. § 303.521(c). Each state must establish a policy concerning payment of fees, if any. Such a policy may not allow fees for services a child would otherwise be entitled to receive at no cost and the parents' inability to pay for services cannot result in the denial of services to the child or family. 34 C.F.R. §§ 303.520(b)(3)(i), 303.520(b)(3)(ii).

Moreover, the following services must be provided at no cost:

Implementation of the State's child find requirements
Evaluations and assessments
Service coordination
The development, review and evaluation of the IFSP
Due process [34 C.F.R. § 303.521(b).]

     Although the child need not be eligible for Medicaid, if available the child's Medicaid or private insurance may be used to pay for early intervention services. 20 U.S.C. § 1481(a); 34 C.F.R. § 303.527(a). To prevent the delay of services, however, early intervention funds may be used to pay for services pending payment by the ultimate entity responsible. 34 C.F.R. § 303.527(b)(1).

 REFERRAL

      As part of its required comprehensive child find system, each state must develop and publicize its procedures for referring children for early intervention services. 34 C.F.R. § 303.321(d)(1). Parents who believe their child needs early intervention services may make the referral directly. The list of others who may make referrals is very broad. 34 C.F.R. § 303.321(d)(3).

THE SERVICE COORDINATOR

      Once a child has been referred to the Early Intervention Program, a service coordinator must be appointed by the agency implementing the program. 34 C.F.R. § 303.321(e)(1). The service coordinator is responsible for overall implementation and coordination of the early intervention services to be provided. 20 U.S.C. § 1477(d)(7); 34 C.F.R. § 303.344(g)(1). The service coordinator must be from the profession most relevant to the child or family's needs or otherwise qualified to carry out all of his or her responsibilities. Id. The service coordinator's role is an ongoing and active one, designed to be a single point of contact for the family to ensure that they receive all the rights to which they are entitled. It is the duty of the service coordinator to be "continuously seeking the appropriate services and situations necessary to benefit the development of each child" throughout the child's eligibility. 34 C.F.R. § 303.22(a).
     The specific duties of the service coordinator include:

 Coordinating the evaluation process
Assisting the family in identifying potential service providers
Setting up the initial IFSP meeting and any review meetings
Coordinating and monitoring the timely delivery of services
Coordinating early intervention services with other services, such as medical services which are           not covered by the Early Intervention Program
As a child nears age three, facilitating the plan to help move the child from early intervention               services to preschool or other services, if needed
Informing the family of their rights under this program, including appeal rights and the availability         of advocacy services. [34 C.F.R. §§ 303.22(a)(3), (b).] 

SPECIFIC SERVICES AVAILABLE

       A wide range of services must be available, designed to meet the developmental needs of the child. 20 U.S.C. § 1472(2)(C); 34 C.F.R. § 303.12(a)(1). They are to be selected in collaboration with the parents. 34 C.F.R. § 303.12(a)(2). Whenever possible, services are to be provided in a natural setting such as the home or a day care center. 20 U.S.C. § 1472(2)(G); 34 C.F.R. § 303.12(b). 

Assistive Technology

      Both assistive technology (AT) devices and services are available under the Early Intervention Program and have the same definitions as they do for preschool and school aged special education programs.

     An "AT device" is any item or piece of equipment used to maintain or improve the functional capabilities of a person with a disability. An "AT service" means any service that assists an individual with a disability in the selection, acquisition, or use of an AT device. It includes evaluations, acquiring, adapting, maintaining, repairing, or replacing AT devices. It also includes training or technical assistance for professionals, the individual or, where appropriate, the family. 34 C.F.R. 303.12(d)(1). Some examples of AT devices used by infants and toddlers:

 Manual or electric wheelchairs
Specialized strollers or car seats to accommodate the needs of a child with a disability
Specially adapted toys and recreation equipment
Augmentative communication systems including talking computers
Assistive listening devices including hearing aids, personal FM units and closed caption TV
Assistive feeding devices including electric feeders

THE EVALUATION

      Once a referral is received, there must be a comprehensive, multidisciplinary evaluation designed to identify the "child's unique strengths and needs and the services appropriate to meet those needs." 20 U.S.C. § 1477(a); 34 C.F.R §§ 303.322 (a) (1) , (b)(2)(i). The evaluation will include a review of health and medical records and an assessment of the functioning level and unique needs of the child in each of the following areas of development: cognitive, physical, communication, social and emotional, and adaptive behavior. 34 C.F.R. § 303.322(c)(3).

     The multidisciplinary evaluation must be nondiscriminatory and in the family's native language or "other mode of communication, unless it is clearly not feasible to do so." 34 C.F.R. 303.323. A "Family Assessment" must also be offered to help identify the concerns, resources and strengths of the family. However, this is voluntary on the part of the family. 34 C.F.R. § 303.322(d).

     If the child or family needs immediate services, they may be available before an evaluation takes place. In such a case an interim IFSP must be developed which lists the early intervention services which have been determined to be necessary immediately and identifies a service coordinator to be responsible for implementing the interim IFSP. 34 C.F.R. § 303.345. This allows the child and family to receive services until the evaluation is completed and a final IFSP is written.

DEVELOPING THE IFSP

      If the evaluation team determines that a child is eligible for services, an Individualized Family Services Plan (IFSP) meeting will be held at a time and place convenient for the parents. 20 U.S.C. § 1477; 34 C.F.R. §§ 303.342(a), (d)(1)(i). The meeting will be attended by the evaluator, the service coordinator, service provider(s), as appropriate, and parents, along with any other persons the parents invite, including an advocate. 34 C.F.R. § 303.343(a). At the IFSP meeting, the same service coordinator may be assigned for ensuring implementation of the IFSP or a new service coordinator may be selected. 34 C.F.R. § 303.344(g)(2). The name of the service coordinator must be listed on the IFSP. 34 C.F.R. § 303.344(g)(1).

     The IFSP meeting must be held no later than 45 days after the early intervention official receives the referral. 34 C.F.R. § 303.321(e)(2). The IFSP must be in writing and include:

 The Child's Current Development: Current level of physical development (including vision and hearing), cognitive development, speech and language skills, social or emotional development and adaptive or self help ability.

Family Information: With the family's consent, the family's strengths, priorities and concerns relating to enhancing the child's development.

Major Expected Outcomes: Results that the child and family are expected to achieve and how to evaluate progress.

Early Intervention Services: The specific early intervention services to be provided to meet the unique needs of the child and family, including the location, start-up dates, duration and frequency.

Payment Arrangements, if any.

Other Services: The services, other than early intervention services, which may be needed but which are not required to be provided as early intervention services.

Transition Plan: A plan to prepare for the transition from early intervention services to preschool special education or other services, when appropriate. [34 C.F.R. § 303.344.]

     Parents must give informed written consent before services may begin. If there is not agreement on all services, only agreed upon services will be provided. 20 U.S.C. § 1477(e); 34 C.F.R. § 303.342(e).

     Services must be initiated "as soon as possible" after the IFSP meeting. 34 C.F.R. § 303.344(f). The IFSP must be reviewed at least every six months and evaluated at least annually at an IFSP meeting. 20 U.S.C. § 1477(b); 34 C.F.R. §§ 303.342(b), (c). Additionally, the parents may request a review of the IFSP at any time. 34 C.F.R. § 303.342(b)(1).

THE TRANSITION PLAN

      A transition plan must be developed to support and prepare the child and family for the time when the child will be too old to receive early intervention services. With parental consent, a meeting must be held at least 90 days before the child is eligible for preschool special education services, to review preschool eligibility. If the child is not thought to be eligible for preschool special education, other options for providing early childhood and other support services may be discussed. The parents must give permission before any records such as evaluations or the IFSP are sent to the school district. 20 U.S.C. § 1478(a)(8); 34 C.F.R. §§ 303.148, 303.344(h). For children eligible for preschool special education, the transition planning process must include "mechanisms to ensure the uninterrupted provision of appropriate services to the child." 34 C.F.R. § 303.148, Note 1. 

THE RIGHT TO APPEAL

      Parents must be informed of their appeal or due process rights throughout the process. They are entitled to written notice a reasonable period of time before there is a proposal or refusal to "initiate or change the identification, evaluation, placement" or provision of early intervention services. 20 U.S.C. § 1480(6); 34 C.F.R. § 303.403(a). The notice must describe the action and reasons for it and include due process rights. 34 C.F.R. § 303.403(b). The notice must be in the native language or dominant method of communication of the parents (including sign language, braille or oral communication). 34 C.F.R. § 303.403(c). The parents also have the right to confidentiality of records and the right to review and inspect records concerning the child and family. 20 U.S.C. §§ 1480(2), (4); 34 C.F.R. § 303.402.

     An appeal can be pursued to resolve disagreements concerning any matter to which the parents were entitled to notice. 20 U.S.C. § 1480(1); 34 C.F.R. § 303.420. Parents may request mediation, an impartial hearing or file a system complaint. However, if mediation is offered, it must be voluntary and cannot be used to delay or deny a parent's rights, including the right to have a decision within 30 days. 34 C.F.R. § 303.420, Note 2. 

The Impartial Hearing 

     Each State must develop an administrative process for resolving complaints through impartial hearings. States may adopt the due process procedures under Part B, the preschool and special education provisions. In such circumstances, the status quo protection must be modified to reflect the requirements of Part H, discussed below. States may also develop a separate administrative process, as set forth below. 34 C.F.R. § 303.420.

     Once a hearing has been requested, an impartial hearing officer will be appointed. The hearing officer must have knowledge about the law and familiarity with the needs of and services for children and their families. 34 C.F.R. § 303.421. The hearing officer must make a written decision, including findings of fact and conclusions of law, within 30 calendar days of receipt of the request by the early intervention agency. 34 C.F.R. §§ 303.421(a)(2)(ii), 303.422(b)(5), 303.423(b). A verbatim record of the hearing must be made. 34 C.F.R. § 303.422(b)(4).

     The hearing must be scheduled at a "time and place that is reasonably convenient to the parents." 34 C.F.R. § 303.423(a). Parents have the right to bring an attorney or other person with special knowledge or training on early intervention. Parents have the right to testify, to present evidence, cross-examine, and compel the attendance of witnesses. The parents have the right to exclude any evidence not disclosed to them at least five days before the hearing. 34 C.F.R. § 303.422(b).

     Either party may file an appeal in State or Federal court. In such cases, as under Part B, the court is to receive the administrative record, hear additional evidence on request and render a decision based on the preponderance of the evidence. 20 U.S.C. § 1480(1). There is no provision for attorney's fees under Part H, but such a right may exist under State law. Additionally, the rights available under Part H are enforceable under 42 U.S.C. § 1983 which has its own attorney's fees provision &emdash; 42 U.S.C. § 1988. Marie O. v. Edgar, 1996 WL 48515, 23 IDELR 709 (N.D.Ill., Feb. 1, 1996). (State of Illinois was not in "meaningful compliance" with Part H, due to significant waiting lists and delays in obtaining services.)

     When a hearing is requested, the child is entitled to receive all of the services that are not in dispute, and to continue to receive any services already being provided, until a decision is made by the hearing officer or until an appeal to court is concluded. 20 U.S.C. § 1480(8); 34 C.F.R. § 303.425. Moreover, parents have the right to decline a service or withdraw their consent to a service without jeopardizing their right to receive other services. 20 U.S.C. § 1480(3); 34 C.F.R. § 303.405. 

System Complaints 

     A complaint may also be filed with the lead State agency implementing Part H for individual or systemic violations. The complaint may be filed by either an individual or organization. 34 C.F.R. §§ 303.510, 303.511.

 Some examples of systemic violations include:

Charging for evaluations
Providing services without parental consent
Refusing to consider serving children in natural settings
Not meeting the time requirements for evaluations or developing IFSPs.

CONCLUSION

      The Early Intervention Program can provide children with disabilities the services to get them started on the right track and minimize their need for special education services later in life. In many cases this program should be available to fund assistive technology where no other funding source is available to purchase the equipment in question.

 Some of the Most Common Services Available through
the Early Intervention Program

Early Identification, Screening and Assessment
Medical Services for Diagnosis and Evaluation
Health Services to Allow the Child to Benefit from Early Intervention
Nursing Services
Family Training, Counseling, Home Visits, Parent Support Groups
Special Instruction
Speech Pathology and Audiology
Physical and Occupational Therapy
Psychological Services
Nutritional Services
Service Coordination
Social Work
Vision Services
Assistive Technology Devices and Services
Transportation
Respite and other family support services

20 U.S.C. § 1472(2) (E); 34 C.F.R. § 303.12(d)

AT COURT WATCH I

Fred C. v. Texas Health and Human Services Commission

Reported at 924 F.Supp. 788 (W.D.Tex. 1996). Plaintiff-appellee is represented by Maureen O'Connell, Garth Corbett of Advocacy, Inc., Texas and Lew Golinker, Ithaca, N.Y. As previously reported, the lower court held that an augmentative communication device is a covered benefit under the home-health-care and prosthetic-devices categories of the Texas Medicaid plan.

     During the week of January 6, 1997, arguments were heard in the United States Court of Appeals for the 5th Circuit on the defendants' appeal. We will report on the decision when it is issued. To obtain copies of the briefs filed by the parties, contact the National AT Advocacy Project.

 AT COURT WATCH II

Cline v. Gloeckler (Sup. Ct. Albany County 12/6/96)
In our November 1996 issue of AT Advocate, we discussed the law and court decisions which establish a state vocational rehabilitation (VR) agency's obligation to provide services to allow an individual to maximize employability. In this case, New York Client Assistance Program attorney, Bill Mastroleo (who also works part-time for the National AT Advocacy Project) contended that his hearing impaired client was entitled to an advanced degree to maximize her ability to obtain work as a social worker. 

In this decision the Court determined that New York's VR agency lacked jurisdiction to review on its own motion and subsequently reverse a fair hearing decision which favored Bill's client because the agency failed to notify her, within 20 days of the mailing of the decision by the Administrative Law Judge, as required by 34 C.F.R. §§ 361.48(c)(2)(iv). The ALJ's decision became the final decision. Although this case did not involve AT, it illustrates how we can win our cases against government agencies on procedural grounds. To obtain copies of the decision or plaintiff's brief, contact the National AT Advocacy Project.

Administrative Hearings

     Attorney Melissa Rodden of the Kentucky P&A represented a 43-year old woman at an administrative hearing and an Appeal Board review regarding Medicaid's denial of her request for a light box. The appellant has been diagnosed as manic depressive with an additional seasonal component of SAD (Seasonal Affective Disorder). Light boxes are a therapy frequently used to lessen the swings into deep depression that the winter months cause due to the loss of daylight. The appellant was prescribed multiple medications, light therapy in a clinical setting and the Sunbox light therapy device for use in her home.

     It was proven in the clinical setting to assist the appellant. Ms. Rodden provided the agency with 8 exhibits in support of the Appellant's request for a light box, including several letters from providers and the list of excluded durable medical equipment (DME) which did not include a light box.

     Ms. Rodden argued that the light box fit the state's requirements for DME as it must (1) be ordered by a physician as required in the treatment of the patient and (2) be suitable for the patient to use in the home. She argued that it was arbitrary and without justification that Medicaid did not designate light boxes as DME. The Appeal Board found the light box to be a reasonable form of treatment and stated that "items not covered by that program may be "separately specified for coverage by the cabinet." Congratulations Melissa!

 For a copy of the memorandum and appeal board decision, please refer to NLS FH#0276.

VISIT OUR NEW INTERNET HOME PAGE:
http://home.sprynet.com/sprynet/nls01 

Neighborhood Legal Services has recently established a Home Page on the Internet. Within the NLS Home Page is a sub-page called the "Assistive Technology Funding Link." This is a work-in-progress and currently includes: 

Our AT Advocate newsletters which serve a national audience of attorneys and advocates

Our AT Resource Library Digest &emdash; a word searchable digest containing abstracts of administrative hearing decisions, policies and other documents from across the nation. This digest will soon be expanded to contain abstracts of court decisions, briefs and other court-related documents..

A listing of State PAAT's addresses and phone numbers

Come visit us on the Internet and watch for additional AT-related features in the near future !

Registration has begun for
Bridges to Better Advocacy

 CONFERENCE FOR P&A ADVOCATES

 March 7-8 1997
Hyatt Regency, Austin, Texas

 Agenda Highlights:

Medicaid: Overview, Emerging Issues
Special Education: Overview, Emerging Issues
Accessing Multiple Funding Sources: A Case History
ADA, Section 504 and AT
Medicare as a Funding Source
Using Expert Evidence and Testimony to Win your AT Case

Conference cost of $385 includes:
3 Nights in Hotel, Double Occupancy (March 6-8, 1997)
Two Full Conference Days (Friday and Saturday)
Conference Lunches, Refreshments
Session Handouts Call the National AT Advocacy

Project for details. . .

The National Assistive Technology Resource Library

PAATs have asked us for hearing and court decisions previously available through the National Association of Protection and Advocacy Systems (NAPAS). The NAPAS library, as supplemented, is available to you.

We have designed a word-searchable digest, using computer technology, to store and retrieve these documents. Our first priority is administrative hearing decisions. Please send us your hearing decisions and other documents involving AT. 

Please send information to:           TEL: (716) 847-0650       Handsnet: HN0627
Attn.: Teresa Amspacher                   FAX: (716) 847-0227       e-mail: nls01@sprynet.com
Neighborhood Legal Services, Inc.    TDD: (716) 847-1322
Ellicott Square Building                      Web Page: http://home.sprynet.com/sprynet/nls01
295 Main Street, Rm 495
Buffalo, NY 14203

If you would like the AT Advocate Newsletter
sent to you in a large-print or other
alternative format, please let us know. 

In our next issue.....

Using SSI's Income and Resource
Exclusion Rules to Leverage Money
for Assistive Technology

NOTE: The AT Advocate is now issued bi-montly

The AT Advocacy Project will provide nationwide services to PAAT projects including technical assistance to advocates wanting to access funding for assistive technology for individuals with disabilities.

NLS Home Page| Feedback