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 III     Issue 1                                  December 1997/January 1998
Copyright 1998, Neighborhood Legal Services, Inc.

In this issue......

THE INTERNET AS A RESOURCE TOOL                  SPECIAL FEATURES:
Introduction                                                                     AT Court Watch I
Your Client's Problems                                                    New SSI Rates for 1998
First Internet Solution                                                       Administrative Hearings
Legal Research Links                                                       AT Court Watch II
Second Internet Solution                                                  AT Conference - March 1998
Conclusion

THE INTERNET AS A RESOURCE TOOL
FOR AT ADVOCATES: PART II

INTRODUCTION

     In our October/November 1997 newsletter we introduced the reader to the Internet as a research tool. We explained, in practical terms, what the Internet is, what a web page is and how one goes about locating useful web pages. We explained the use of bookmarks on your computer as a means of indexing the useful web pages that you will want to come back to again. Finally, we urged the reader to maximize their time on the Internet by using the links already created on web pages, which provide access to a wide range of laws, regulations and other legal resources.

     In this article, we will provide some concrete examples of how you can use web pages to address the issues which arise in your own caseloads. Specifically, we will show you how to use the National AT Advocacy Project's web page and the links within it to identify the Internet resources you will need to better serve your clients.
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YOUR CLIENT'S PROBLEMS

     You just got off the phone with Mary, who is 18 years old. Mary injured her spinal cord as an 11 year old and is now completing her senior year in high school. Both Mary and her mother are thrilled with you because you successfully represented her in a Medicaid hearing last month after she was denied funding for a HiRider wheelchair &emdash; the kind that allows the user to rise to a standing position. You had doubts when Mary's mom first called you about the case four months ago, but after hearing about Steve Elliott's victory in Minnesota's state appellate court [see box, p. 90], you obtained the decision and Steve's brief from the National AT Advocacy Project's brief bank. You presented a copy of the Minnesota court decision and your own written arguments at the hearing. The hearing officer in Mary's case was persuaded by the arguments which you, in large part, borrowed from Steve's brief.

     A few other things you know about Mary. She is a very good student and has told you in the past that she wants to be a lawyer. Although Mary's mother has a good job as an elementary school teacher, the family is in significant debt because her father recently died after a long illness. Mary has been getting SSI benefits of $494 per month [see box below regarding 1998 SSI rates], but is now informed that she will qualify for $634 of monthly Social Security Disabled Adult Child's benefits on the account of her dad.

First Internet Solution

     You want to find out whether Mary can retain Medicaid despite her loss of eligibility for SSI. You know that previous AT Advocate newsletters have discussed both Medicaid and SSI. You also know that Ron Hager and Jim Sheldon of the National AT Advocacy Project co-authored an article in the May-June 1997 issue of Clearinghouse Review, Funding Assistive Technology for Persons with Disabilities: The Availability of Assistive Technology Through Medicaid, Public School Special Education Programs, and State Vocational Rehabilitation Agencies.

     In some offices the articles may be within arms reach. In your case they are not. Your office does not subscribe to Clearinghouse, and one of your agency's special education advocates probably has the notebook with the newsletters in it, as you recommended that she read the August-September 1997 newsletter on IDEA Reauthorization. At any rate, you cannot find the newsletters. Alternatively, the publications in question may not be available because you are in one of your program's satellite offices or are sitting in front of your home computer. The good news is that you can access the newsletters and the Clearinghouse article from our web page.

     Using your Internet provider (such as America Online, Prodigy or AT&T WorldNet), you go onto the Internet. If you bookmarked the Neighborhood Legal Services web page as we suggested in our last issue, you go right to our page using the bookmark. You may want to bypass what is known as the NLS home page or front page and set your bookmark so that it takes you right to our National AT Advocacy Project's sub page. If you have not bookmarked it, you will have to type in our web address or URL (www.nls.org) to get to our page.

     When you get to the NLS home page, you will be asked to select either "text" or "graphics." If you are visually impaired and use voice output software or screen readers, you will want to select "text." Having made your selection, you are taken to what we call our "main menu" page, which gives you several options to go to sub-pages: e.g., "National AT Advocacy Project," "Public Assistance" or "SSI Work Incentives." Select National AT Advocacy Project (i.e., click on it with your mouse) and you will be taken to our project's sub-page.

     You are now confronted with a new menu for sites within the project's sub page. You decide to first check out our newsletters to see if they offer any guidance. You select "AT Advocate - The Project's Previous Newsletters." This takes you to a table of contents for our newsletters and you scan that screen. You see two newsletters you want to check out, one dealing with SSI issues (February-March 1997) and one dealing with Medicaid (April-May 1997). You decide to check out the Medicaid article first, so you select it.

     Now on your screen is the table of contents for the Medicaid article. You see that there is a section on "Eligibility" and you select it. You find that the eligibility section itself says very little, but refers you to a box later in the article which describes special provisions which allow some former SSI recipients to continue eligibility for Medicaid. You scroll down, find that box (it's not actually a box on our web page) and read it. [By the way, you may want to "download" this newsletter or some part of it to your computer or you may want to print it and read it later.]

     As you are reading about these special provisions for retaining Medicaid eligibility, you zero in on the part dealing with Social Security Disabled Adult Child's (DAC) benefit recipients. You read on and learn that under 42 U.S.C. § 1383c(c), a person who loses SSI due to entitlement to or an increase in DAC benefits (also known as Child's Insurance Benefits) can continue automatic Medicaid eligibility. Based on the example used in the newsletter, it seems like Mary will probably be eligible for continued Medicaid under this provision. You decide you should look up 42 U.S.C. § 1383c(c).

     At the end of this newsletter, you are offered this selection &emdash; "NLS Home Page." You hit this with your mouse, and it takes you back to the main menu page where you remember seeing a menu item, "Legal Research Links." You select it and are taken to our "links" page which looks something like this:
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LEGAL RESEARCH LINKS

AMERICANS WITH DISABILITIES ACT

FEDERAL AGENCIES
BACK UP CENTERS - NATIONAL FEDERAL LAWS
BACK UP CENTERS - STATE FEDERAL REGULATIONS
COURTS - FEDERAL FEDERAL REGISTER
COURTS - STATE LAW JOURNALS, PUBLICATIONS
COURT DECISIONS - FEDERAL LEGAL SERVICES/

LEGAL AID/ PROTECTION & ADVOCACY

COURT DECISIONS - STATE MEDICAID

     Go to the box or menu item titled "Federal Laws" and click. That takes you to another screen (or "site") where we have listed web pages that provide access to federal statutes. If you select any one of these "links" you will go directly to that web page (or in some cases, a site within a web page). Under the subheading "U.S. Code," you select "Univ. of Calif., GPO Gate" (www.gpo.ucop.edu/search/uscode.htm). On the GPO Gate page you are offered the opportunity to type the full cite and you type in 42 U.S.C. § 1383c.

     You now have the text of 42 U.S.C. § 1383c on your screen. You scroll down to subsection (c), titled "Loss of benefits [i.e., SSI] upon entitlement to child's insurance benefits based on disability [i.e., DAC benefits]." Upon reading through this section you determine that Mary, who lives in one of the 39 states in which SSI recipients are automatically eligible for Medicaid, should probably still be entitled to automatic Medicaid as if she were still receiving SSI. You print a copy of this statute for your file. You make a note to call Jim Sheldon, as the newsletter on Medicaid mentioned that Jim was involved in litigation in New York regarding the enforcement of section 1383c(c). [We believe the chances are better than 50 percent that this law is not being enforced in your state.]

     We encourage you to go back to the beginning of this part of the article and actually try this search using your own computer. Did it work as it did for us? If you have any problems, we urge you to call attorney, Bill Mastroleo, at the National AT Advocacy Project. Bill is our project's web master and computer guru.

Second Internet Solution

     You are still on the Internet and still on our web page (or you can easily get back to it). The first issue you decide to look into is the issue of home use. You go back to the National AT Project's menu page and select "Article on Funding AT for Persons with Disabilities" (i.e., the May-June 1997 article from Clearinghouse Review). You scan that article's table of contents and click your mouse at the beginning of the special education section. This takes you past the Medicaid section of the article and to the special education section. As you skim this part of the article, you make a note to look up Board of Education v. Rowley, 458 U.S. 176 at 188-89 (1982), regarding the "educational benefit" test for approving special education services. You also make a note to look up 20 U.S.C. §§ 1401(a)(25) and (26), and 34 C.F.R. §§ 300.5 and .6 regarding the definitions of "assistive technology device" and "assistive technology service" under the federal Individuals with Disabilities Education Act (IDEA).

     Mary's question about home use is answered in the Appendix to the article (right after the special education section on the web page version; at the very end of the article in the Clearinghouse version). The Appendix is titled "United States Department of Education Policy Letters Regarding When Assistive Technology is Available for Children with Disabilities." You find the section on home use and find reference to a policy letter from 1991 which states that when an AT device is needed for home use to ensure a free appropriate education, it must be provided. Included is a reference to a commercial reporting service where this policy letter can be located. See 18 Individuals with Disabilities Educ. L. Rep. 627 (OSEP Nov. 21, 1991). You make a note to send an e-mail to us (you can do that right off our web page) to see if we can fax you a copy of the policy letter.

     What does that policy letter really mean within the larger context of the "educational benefit" test from the Supreme Court's 1982 Rowley decision? Can you find Rowley through our web page? Yes you can! Go back to the menu page for our National AT Advocacy Project's web page. Select "Legal Research Links." On our links menu, look under "Court Decisions - Federal" and select "U.S. Supreme Court Opinions" (www.findlaw.com/casecode/supreme.html). This takes you to a new page where you will be offered the choice of typing in a citation. You either type in 458 U.S. 176 (takes you to the first page of the decision) or 458 U.S. 188 (takes you to the page where pertinent discussion starts). You are now taken to the Rowley decision and you have still not left your computer.

     The next thing you want to do is look at the federal regulations. Go back to our "Legal Research Links" menu and select "Federal Regulations." This takes you to the U.S. Government Printing Office's web page. On this page, you have the choice of searching for a specific regulation. You type in 34 C.F.R. § 300.5, and on your screen appears the federal education regulation which defines "assistive technology device." Once again, you can read the text on screen, download it to your hard drive or a disk, or print all or part of the regulatory language.

     The very last thing you want to do is check the Federal Register. You are aware that the U.S. Department of Education issued proposed regulations on October 22, 1997, 62 Fed. Reg. 55025. These regulations implement the IDEA reauthorization amendments. Go back to the "Legal Research Links" menu and this time click on "Federal Register." This will take you again to "GPO Gate," where you will be offered the opportunity to search for the very page where these proposed regulations begin. You do the following: select "Federal Register 1997"; type in under Issue Date, "10/22/97"; and type in under Page, "55025." When you see how long this document is, you decide that you will download the regulations and save them so that you can print them out later.

     We will stop the discussion here, since this article is about using the Internet and not about how AT can be obtained through the special education system. If you want to explore those issues further, we suggest looking at the materials that were referenced in the discussion above. We also suggest that you plan to attend the March 27-28, 1998 conference in Austin, Texas, as our attorney, Ron Hager, will be discussing some of the cutting edge special education issues during one of the sessions.
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CONCLUSION

     In this second part of our two-part article on using the Internet, we showed how you could do significant legal research without ever leaving your computer screen. If you are hooked up to the Internet, you could do this right from your office or you could do it from home. You could do this during business hours, in the evening or at 2:00 a.m. [Someone came onto our web page for an extended visit at 5:00 a.m. Eastern Time on Memorial Day.]

     In the hypothetical above, you used our web page to read newsletter articles and a longer article, all developed by our staff. You then used our legal research links to look up statutes, regulations, the Federal Register and a 1982 U.S. Supreme Court decision. With a limited amount of practice and skill, you could have accomplished this research in less than 45 minutes -- longer if you spent time reading the full text of the longer documents while you were on screen.

     Is this kind of research a substitute for traditional research? In most cases, the answer is no -- this is only a good supplement for the more traditional methods. However, since our staff has done much of the work for you, by arranging materials on our web page and setting up good links, you need only learn your way around our web page and become familiar with what is available through the links we have selected. On selected issues you may save yourself many hours of research time by using your keyboard and mouse.
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AT COURT WATCH I

MINNESOTA'S STATE APPELLATE COURT APPROVES
MEDICAID FUNDING FOR HiRIDER WHEELCHAIR

     In Forest Johnson v. Minn. Dept. Of Human Services, 565 N.W. 2d 453 (Minn. App. June 1997), attorney Steve Elliott of the Minnesota P&A successfully represented this 39 year old man with multiple sclerosis. The state's Medicaid program had denied funding, claiming that the HiRider wheelchair &emdash; which combines a power wheelchair with a passive standing device &emdash; was neither medically necessary nor the least costly alternative to meet his needs. Despite his severe disability, Mr. Johnson was capable of moving between sitting and standing, using the HiRider, by touching two buttons. The evidence in the case showed that during a three-month trial of the HiRider there was noticeable improvement in balance, muscle tone, digestion and diaphragm function. The evidence also showed that Mr. Johnson could not safely and effectively use a less expensive, passive standing aid to accomplish the same thing. Accordingly, the court found that the HiRider was medically necessary and the least costly alternative and affirmed the decision of the lower court.

For copies of the court's decision or Steve's brief, contact Vivian at 716-847-0655 ext. 271
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NEW SSI RATES FOR 1998

The listed rates are federal benefit rates.
States supplement the FBR at their option.

Individual:                                                         $494.00
Individual (w/one third reduction):                   $329.34

Couple:                                                              $741.00
Couple (w/one third reduction):                        $494.00

SOCIAL SECURITY ADMINISTRATION (SSA) ISSUES
NEW POLICIES GOVERNING PASS

     We previously reported on SSI's Plan for Achieving Self Support (PASS) as a unique funding source for assistive technology. See AT Advocate (September 1996). On November 28, 1997, SSA issued Emergency Instructions governing the PASS. Responding to severe criticism from persons with disabilities and their advocates, SSA's new policy clarification [EM-97-191] addresses many of the major concerns about the implementation of policies issued in April 1996. On December 1, 1997, SSA's Carolyn Colvin, Deputy Commissioner for Programs and Policy, issued a Statement and attached Summary Sheet which describes the policy changes. Both documents (i.e., the new policy and SSA's statement), along with a summary prepared by us, appear on our web page (www.nls.org). You can also obtain hard copies of these documents by calling Vivian at 716-847-0655 ext. 271.

     Two of the major provisions found in the new policy address the issues of approvable vocational goals and installment payments as approvable expenses. The new policy liberalizes what qualifies as a vocational goal, allowing approval of goals that are beyond the entry level under some circumstances. The policy also makes it clear that installment payments can be approved as a PASS expense. We will publish a more complete discussion of these new policy changes in a future newsletter.
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Administrative Hearings

     Matter of Anonymous (Arizona Health Care Cost Containment System, on petition for rehearing, Sept. 1997): The state's Medicaid program denied coverage of a cochlear implant, a surgical implant to restore hearing, contending that the item was a hearing aid which is specifically not covered under the state's Medicaid program. The Arizona Center for Disability Law, the state's P&A office, lost a fair hearing on the issue. The P&A then filed a petition for rehearing, a procedure available in only some states. On rehearing, the state director approved funding noting that the Medicaid decision maker conceded that the cochlear implant was needed and that the sole basis for denial was a finding that the item was precluded as a hearing aid. Since the state director found that the cochlear implant is not a hearing aid, he reversed the hearing decision and awarded funding.

Call Vivian at 716-847-0655 ext. 271 if you would like a copy of the decision or the brief filed by the Arizona Disability Law Center.
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AT COURT WATCH II

WILL FIFTH CIRCUIT AGAIN CONSIDER MEDICAID
FUNDING OF AUGMENTATIVE COMMUNICATION DEVICES?

     We have previously reported on the Texas P&A's challenge to a state Medicaid policy which makes augmentative communication devices (ACDs) available to children, but not to adults. In 1996, the lower court ruled that ACDs are available under both the home health services category as durable medical equipment and under the prosthetic devices category. Fred C. v. Texas Health and Human Services Commission, 924 F.Supp. 788 (W.D. Tex. 1996). Following the state's appeal, the Fifth Circuit Court of Appeals, without addressing the issue of whether ACDs are covered under Medicaid, vacated and remanded the case for a determination of whether Fred C. is eligible under the home health services category. Unpublished Opinion, No. 96-50417 (5/27/97). The District Court has again ruled for Fred C., finding that he qualifies under the home health services category and confirming its earlier holding &emdash; i.e., that he is Medicaid eligible, that ACDs are covered by Medicaid and that the ACD was medically necessary for Fred C. ___ F.Supp. ___ (W.D.Tex. 12/4/97). Plaintiff's counsel, Maureen O'Connell, informs us that the state again plans to appeal to the Fifth Circuit. Good luck Maureen and co-counsel, Garth Corbett of Advocacy, Inc. and Lew Golinker of Ithaca, New York.

For copies of this latest decision, contact Vivian at 716-847-0655 ext. 271.
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Assistive Technology Conference for
Protection and Advocacy Advocates
Presented by the National AT Advocacy Project

Agenda Highlights (March 27-28)

Agenda Highlights;-- "Intro to AT Advocacy" (March 26)

  Attention Newer AT Advocates -- "Intro to AT Advocacy"
will be held Thursday, March 26, from 9:30 - 4:30
(Cost: Additional fee of $25 plus hotel accommodations night of 3/25 if necessary)

Call Vivian at (716) 847-0655 ext. 271
if you have questions or need registration forms

The National Assistive Technology Resource Library

     We have designed a word-searchable digest, using computer technology, to store and retrieve hearing decisions, pleadings, briefs and other documents from our resource library. Please send us your hearing decisions, briefs and other documents involving AT.

Please send information to:                  TEL: (716) 847-0650                Handsnet: HN0627
Attn.: Vivian Cosentino                      FAX: (716) 847-0227               e-mail: nls01@sprynet.com
Neighborhood Legal Services, Inc.    TDD: (716) 847-1322
Ellicott Square Building                      Web Page: http://www.nls.org
295 Main Street, Rm 495
Buffalo, NY 14203ternative format, please let us know.

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.

In future issues.....
- Private Insurance Funding of AT
- Medicaid Funding of AT in Nursing Homes

NOTE: The AT Advocate is now issued bi-monthly

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