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 3 April/May 1997
FUNDING OF ASSISTIVE
TECHNOLOGY THROUGH MEDICAID
Copyright 1997, Neighborhood Legal Services, Inc.
INTRODUCTION
Medicaid has historically been the most important funding source for assistive technology (AT) in most states. Among Protection and Advocacy for Assistive Technology (PAAT) advocates, Medicaid cases typically make up 70 percent or more of caseloads. Among Protection and Advocacy and Legal Services advocates who have handled just a few AT cases, it is most likely they have worked with Medicaid as the funding source.
Persons with disabilities have accessed a variety of AT devices through Medicaid, including the following:
· Motorized and custom-made wheelchairs
· Augmentative communication devices
· Vehicle modifications, including wheelchair lifts and hand controls
· Electronic lifting devices
· Assistive listening devices, including hearing aids and personal FM units
· Home modifications, including ramps, lifts and stair glides
· Environmental control devices
· Specialized car seats and strollers
These devices and others have been obtained through regular Medicaid funding for adults or through the Early Prevention, Screening, Diagnosis and Treatment (EPSDT) program for children. Additional AT devices may be available under one or more Medicaid waiver programs which are unique to your state. The National AT Advocacy Project has collected Medicaid fair hearing decisions in its Resource Library which have approved funding for each of the listed devices.
This article presents an overview of Medicaid and the funding available for AT under Medicaid. We differentiate between the funding available to children within a state under EPSDT and the funding available to adults under the State Medicaid Plan. We do not discuss AT that may be available through Medicaid waiver programs because they vary from state to state. The bulk of this article and much more will appear in 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, an article authored by Jim Sheldon and Ron Hager of the National AT Advocacy Project which will appear in the May-June 1997 issue of Clearinghouse Review. After publication in Clearinghouse (late May 1997), it will then appear on our Web Page (www.nls.org).
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 not provide any goods or services directly; rather, it provides money to pay for them.
This article provides 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. In back issues of AT Advocate, you will also find summaries of hearing decisions and court decisions in which the basic principles discussed herein are applied. [For a more thorough discussion of Medicaid, see NATIONAL HEALTH LAW PROGRAM, AN ADVOCATE'S GUIDE TO THE MEDICAID PROGRAM (1993).]
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.
Hunter v. Chiles, 944 F.Supp. 914, 916 n.1 (S.D.Fla.
1996); Fred C. v. Texas Health and Human Services Commission, 924 F.Supp. 788, 791
n.2 (W.D.Tex. 1996).
Return to Table of Contents
Medicaid is a complicated maze of state and federal laws, regulations and policies. There are many Medicaid recipient categories under the federal law, with eligibility criteria that apply to each category. Some of these eligibility provisions 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., The Welfare Law and Its Effects on Medicaid Recipients, 30 CLEARINGHOUSE REV. 1008 (Jan.-Feb. 1997).]
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. [See box, p. 60,
describing special provisions which allow some former SSI recipients to continue
eligibility for Medicaid.]
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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.
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 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
· Home health care services (medical supplies, equipment and appliances)
· EPSDT (for children)Optional Service Categories for AT Funding
· 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) (preventive services), 440.130(d) (rehabilitation
services).
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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. [If your state has provided a specific AT device under its state Medicaid plan, and not under a specific waiver, you should be able to use this as precedent for future cases. A state's failure to provide the same device to your client would violate § 42 U.S.C. 1396a(a)(10)(B)(i), which requires that medical assistance made available to any individual, within the state, shall "not be less in amount, duration, or scope than medical assistance made available to any other such individual." See also 42 C.F.R. § 440.240(a).
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. [Although your state's Medicaid agency is not bound by decisions of other states, advocates have been successful in convincing a state that it should cover a particular device by showing that other states have covered the device in one of the optional categories covered in your state.]
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 AT
Advocacy Project has established an AT Resource Library which includes Medicaid fair
hearing decisions collected from advocates nationwide. If a fair hearing resource library
has not been established in your state, start one today. Then send us copies of your
state's decisions so that we can include them in our AT Resource Library.
Return to Table of Contents
AT Available to Children Under Medicaid's EPSDT Program
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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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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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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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 or in
pre-hearing negotiations. [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.] Although fair hearing decisions are not published
through any official reporting service, as noted above, the National AT Advocacy Project
has established an AT Resource Library which contains AT-related fair hearing decisions
from many states.
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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 Ellen Saideman, Helping the Mute to Speak: The Availability of Augmentative Communication Devices Under Medicaid, 17 N.Y.U. REV. L. & SOC. CHANGE 741 (1989/1990) (Ellen is an attorney with the Protection and Advocacy program in Florida.). 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 them.
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 Court of Appeals for the Fifth Circuit.
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 mandatory home health care category, 42 C.F.R. § 440.70(b)(3), which includes medical supplies, equipment and appliances (called "durable medical equipment" in the Texas Medicaid program, Tex. Admin. Code § 14.202) [ Under 42 C.F.R. § 440.70(b)(3), 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 for speech communication 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. [Contact the AT Advocacy Project if you would like copies of the briefs filed in the Fifth Circuit.]
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, 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 State of Florida initially appealed Hunter to the Eleventh Circuit Court of Appeals. Recently, however, the state has withdrawn the appeal and has agreed that ACDs will be available for both children and adults under Florida's Medicaid program. [The briefs filed in the District Court in Hunter are available through the AT Advocacy Project.]
Advocates are excited about the Fred C.
and Hunter decisions, which are the result of many years of aggressive advocacy by
PAAT program attorneys. Advocates are waiting for the Fifth Circuit decision in Fred C.
with keen interest as that case may set some parameters for when AT is available to
individuals under Medicaid, generally, and for when ACDs are available specifically.
Return to Table of Contents
This article has provided the reader with an overview of the Medicaid issues one needs to understand as an AT advocate. Many of these issues are more fully explored in the briefs submitted in various court cases and in the writings of attorney Lew Golinker, whose contributions in the area of AT advocacy cannot be overstated. You may obtain copies of briefs and other materials collected in our AT Resource Library by calling us at the AT Advocacy Project.
REQUEST FOR INFORMATION
One recurring problem faced by advocates concerns the availability of Medicaid-funded wheelchairs for residents of nursing homes. If the wheelchair is a standard ("off the shelf") model, the home will generally provide the chair as part of its per diem rate. The problem comes when the patient needs a power chair or other custom model. Many Medicaid agencies will balk at providing wheelchairs to nursing home residents on the same basis that it provides them to persons living in the community.
This is a major problem in Georgia. If you have information describing how your state funds wheelchairs for nursing home residents, mail or fax the information (decisions, policies, briefs) to: Naomi Tsipora Walker, Esq., Georgia Advocacy Office, 999 Peachtree Street, N.E., Suite 870, Atlanta, Ga. 30309. Phone: 404-885-1234. Fax: 404-607-8286.
Please send a separate copy to Jim Sheldon at the AT Advocacy Project.
AT _ On Point
Medical Assistance decisions were recently received from the following offices:
Agency Funding Source Device
Louisana Protection and Advocacy
Medicaid
Communication Device
Minnesota Disability Law Center
Medicaid
Easy Pivot Transfer Machine
Manual Wheelchair (as P-T)
Power
Wheelchair in Nursing Home
Rhode Island Protection & Advocacy, Inc.
Medicaid
Video Monitor
Tennessee Protection and Advocacy, Inc. Medicaid
Two cases on
Communication Devices
Tennessee Protection and Advocacy, Inc. Special Ed
Portable Computer
Special Ed
Communication Device and Home Computer
These decisions/papers will be included in the next update to the Resource Library expected to be released in June.
SOME FORMER SSI RECIPIENTS
RETAIN
ELIGIBILITY FOR AUTOMATIC MEDICAL ASSISTANCE
Supplemental Security Income (SSI) provides cash disability benefits to persons with limited income and resources. In 39 states, an SSI recipient qualifies for Medicaid automatically. In several situations a person who loses SSI due to increased income can continue automatic Medicaid eligibility.
Social Security Widow's/Widower's Recipients
A person who loses SSI when they become entitled to Social Security widow's or widower's benefits will retain automatic Medicaid if SSI eligibility would continue in the absence of the Social Security benefits. Eligibility continues only for so long as the person remains ineligible for Medicare -- a period of 24 months following eligibility for Social Security. 42 U.S.C. § 1383c(d).
Social Security Disabled Adult Child's Recipients
Recipients of Social Security Child's Insurance Benefits, often referred to as Disabled Adult Child's (DAC) benefits, can continue automatic eligibility for Medicaid if, after July 1, 1987, the person lost SSI due to entitlement to or an increase in DAC benefits. 42 U.S.C. § 1383c(c). DAC benefits are available through the Social Security record of a parent who is now disabled, retired or deceased. If the adult child would still be eligible for SSI if the DAC benefits, or increase in DAC benefits, were ignored, he or she is eligible for continued Medicaid under this provision.
Consider James, a man in his 30s with cerebral palsy who receives $484 in monthly SSI and automatic Medicaid. His father dies and James becomes eligible for $720 in Social Security DAC benefits. Since James loses SSI, ordinarily he would now have to apply separately for Medicaid to retain eligibility. In many states, James could retain Medicaid but only by paying a spenddown. Under these facts, however, James is eligible for continued automatic Medicaid without a spenddown under the provisions of 42 U.S.C. § 1383c(c).
This provision has been the subject of two lawsuits -- one in West Virginia, Carter v. Willis-Miller, and one in New York, McMahon v. Dowling, originally co-counseled by Jim Sheldon of the AT Advocacy Project. Both lawsuits addressed the failure by the state's Medicaid agency to properly implement this 1987 law. In New York, for example, the interim settlement incorporated the promulgation of new regulations and policies to provide guidance to the county Medicaid agencies responsible for implementation of the law. It is very likely that many states have failed to properly implement this law. [For more information about this special Medicaid provision, see Judith K. Munger, Categorical Medicaid Eligibility for Recipients of Disabled Adult Child Social Security Disability Benefits, 29 CLEARINGHOUSE REV. 1044 (March 1996)(Judith is currently a co-counsel on the McMahon case.]
Section 1619(b) Medicaid
If an SSI recipient goes to work, the first $85 they make each month is not counted. The SSI check is then reduced by $1 for every additional $2 they make in gross monthly wages. For a person who receives the SSI Federal Benefit Rate of $484 per month, SSI eligibility will cease if they make $1,053 or more per month.
Section 1619(b) allows automatic Medicaid to continue if a person loses SSI due to increased wages. 42 U.S.C. § 1382h; 20 C.F.R §§ 416.266-.269; Social Security Program Operations Manual System (POMS) SI 02303.010B; Benefits Management for Working People With Disabilities: An Advocate's Manual, Chapter 3 (an annual publication). If the person is still disabled and would be eligible for SSI if the wages were not counted, Medicaid should continue under this provision. Each state has it own eligibility threshold which is published in Social Security's Program Operations Manual System (see POMS SI 02302.200). Call us at the AT Advocacy Project if you would like the eligibility figures for your state. [In New York, the 1996 income limit for eligibility was $28,892 in wages per year. The income limit can be even higher if medical expenses are high enough.]
FINAL VOCATIONAL REHABILITATION
REGULATIONS
APPEAR IN FEDERAL REGISTER
New vocational rehabilitation (VR) regulations appeared in the Federal Register on February 11, 1997 and became effective on March 13, 1997. 34 C.F.R. Part 361, 62 Fed. Reg. 6308-62. Believe it or not, these regulations were issued to implement 1992 amendments to the federal Rehabilitation Act. The Rehabilitation Act is up for re-authorization during the current term of Congress.
These regulations govern your state's vocational rehabilitation agency. Although most of the basic rules remain unchanged, there are some noteworthy changes which have application to persons seeking AT. [Our November 1996 issue of AT Advocate explained how AT can be funded through your state VR agency.]
The new regulations have added definitions for "assistive technology device" and "assistive technology service," using terminology that already appears in the Technology Related Assistance for Individuals with Disabilities Act (known as the Tech Act). These terms are then included under an expanded definition of rehabilitation technology. 34 C.F.R. §§ 361.5(b)(6), (7) and (39). In developing and implementing an Individual Written Rehabilitation Plan, the VR agency must consider a person's need for rehabilitation technology and approve funding for what is needed to achieve a particular goal.
Transportation is defined in the new regulations as "travel and related expenses that are necessary to enable an applicant or eligible individual to participate in a vocational rehabilitation service." 34 C.F.R. § 361.5(b)(49). A note, following the regulation, states that "[t]he purchase and repair of vehicles, including vans" is an example of an expense that would meet the definition of transportation. Under this provision, it would appear that your VR agency will have the obligation to purchase a vehicle in cases where it is the most cost-efficient means of transportation to a vocational or educational program. (Some states may need to be pushed to enforce this new mandate.) The same note states that modifications to the vehicle would not be a transportation expense, but would fall within the definition of rehabilitation technology.
The new regulations reaffirm the obligation of the person with a disability to seek comparable benefits, i.e., other sources of payment, before turning to the state VR agency for payment. The regulations make it clear, however, that this provision only applies to benefits that are available, without delay, at the time needed. If the benefits are available from another source, but not at the time needed, the VR agency would be required to provide payment for the services until they become available from the other source. The regulations also reaffirm the principle that rehabilitation technology is exempt from the comparable benefit requirement, meaning that the consumer of VR agency services is not required to seek out the alternate source of payment first. 34 C.F.R. § 361.53.
Internet users can access the full text of these regulations and other materials which appear in the Federal Register at the following Web site:
www.access.gpo.gov/su_docs/aces/aces140.html.
AT-Related Sessions at NAPAS Conference
Staff from the National AT Advocacy Project will be trainers for two separate sessions, neither of which was part of the agenda at the March conference in Austin, Texas:
SSI's Plan for Achieving Self Support (PASS) (Friday, 5/30, 8:30 to 11:45) This two-part session will be co-presented by Jim Sheldon of the AT Project and Edwin Lopez-Soto, an attorney with the Greater Upstate Law Project in Rochester, New York. Part I will be an overview of the PASS, with an emphasis on 1996 policy changes. Part II will be a PASS-writing workshop, with trainees working in small groups to write up PASS proposals. The presenters will emphasize use of the PASS to fund the purchase of AT.
Transition: School to Work from Classroom to Career (Part I) (Saturday, 5/31, 9:30 to 11:00) This session, which is listed as part of the Client Assistance Program track, will be co-presented by attorneys Ron Hager and Jim Sheldon of the AT Project. The focus will be on the respective obligations of special education programs, state vocational rehabilitation agencies and colleges to fund services (including AT) for students coming out of secondary schools. This session will complement rather than duplicate the separate session on transitioning which is offered earlier during the conference.
We will also hold a meeting of PAAT projects on Thursday, May 29th 11:30 a.m. - 12:45 p.m. This will be an opportunity to get acquainted and to share hot issues and cases. At that time, we will share some of the special initiatives of the National AT Advocacy Project and will update advocates on the results of the recent surveys each program was asked to complete.
AT ADVOCACY PROJECT WEB PAGE
UPDATE
www.nls.org
AT Advocacy Project attorney, Jim Sheldon, and co-author, Edwin Lopez-Soto of the Greater Upstate Law Project in Rochester, New York, have written an extensive article on SSI's Plan for Achieving Self Support (PASS). The article, which originally appeared in the March-April 1997 issue of Clearinghouse Review, now appears on our Web Page.
The article contains all the 1996 policy changes, extensive references to controlling policy provisions and advocacy tips for getting around the new restrictive policies governing the PASS. Included as an appendix is a completed PASS proposal, using the new form SSA-545, for a person seeking to purchase a specially modified van. The PASS has always been an important source of funding for AT. (See September 1996 issue of AT Advocate.)
If you would like a copy of
this article (hard copy or disk copy on WordPerfect 5.1 or 6.0/6.1) and do not have access
to Clearinghouse Review or the Internet, call Vivian at the AT Advocacy Project
(716-847-0655 ext. 271).
SPRINGTIME IN
AUSTIN
71 advocates gather for National AT Conference
The Bridges to Better Advocacy conference held March 7-8, 1997 in Austin, Texas was a huge success. The two-day event was held at the Hyatt Regency Hotel and was attended by persons from 38 states and the District of Columbia, including: 56 P&A advocates, 11 persons from Tech Act projects, 1 person from UCPA, 1 law school clinical professor and 1 attorney in private practice.
Our special thanks to co-sponsor, Advocacy, Inc. of Texas and Lois Holmbeck and Maureen O'Connell of Advocacy, Inc., who did so much to set this up. We also could not have done this without the help of our conference planning committee: Jack Bach, Mississippi; Cynthia Berger, Alaska; Monica Murphy, Wisconsin; and Maureen O'Connell, Texas. Finally, thank you to our 12 presenters whose hard work and excellent presentations kept 70 people in a hotel conference room on Saturday.
Based on the conference evaluations which we recently tabulated, it is clear that nearly all who attended were satisfied with the conference and would like to see a similar training program next year. A planning committee will soon convene to begin looking at options for a 1998 program.
If you could not attend the conference, materials are available. Copies of handouts are available for all sessions. We expect that shortly we will have a transcript of Lew Golinker's talk on Medicaid, including case references and citations. We recorded each of the conference sessions on cassette tape and are in the process of making duplicate copies.
If you want any of these materials call Vivian at (716) 847-0655 ext. 271. Let her know if we can meet your needs by sending the materials as an e-mail file. If you need cassette recordings of any sessions we may charge a nominal amount for the tapes and postage.
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.
MEDICAID RESOURCES AVAILABLE
IN THE
NATIONAL AT RESOURCE LIBRARY
We now have more than 180 Medicaid fair hearing decisions in our AT Resource Library, with another dozen about to be added. The great majority of these are favorable decisions awarding funding to purchase the equipment in question.
In addition to the items list on page 53, the following is a sample of the AT devices addressed by decisions in our library:
· Air Conditioner (3 cases)
· Handimove Lift and Track
· Hearing Aid Batteries
· Hospital Bed (2 cases)
· Hospital Crib
· Mattress (special air exchange)
· Myoelectric Hand
· Physical Therapy Ball (2 cases)
· Physical Therapy Bolster
· Physical Therapy Tumble Form Rolls
· Positioning Work Station
· Prone Stretcher (motorized)
· Seating System (14 cases)
· Seat Lift Mechanism
· Stair Glide
· Stair Lift
· Standing Frame (3 cases)
· Stand Up Wheelchair
· Sun Box
· TENS Unit (4 cases)
· Vehicle Modifications
· Voice Synthesizer for Glucometer
· Wheeled Walker
· Whirlpool Unit (2 cases)
Remember, we have developed a word-searchable database that allows you to quickly identify whether we have materials in our library that are relevant to your cases. The database has been sent out to P&A offices on disks and can be downloaded from our Web Page:
(www.nls.org)
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.: 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://www.nls.org
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.....
Medicare as a Funding Source
for Assistive Technology- Basic eligibility criteria
- Approval proces for AT
- AppealsNOTE: The AT Advocate is now issued bi-monthly