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 I Issue 2 August 1996
OBTAINING ASSISTIVE TECHNOLOGY
THROUGH THE PUBLIC SCHOOLS
Copyright 1996, Neighborhood Legal Services, Inc.
INTRODUCTION
The focus of our lead article is on obtaining assistive technology (AT) from the public schools. We hope to encourage many special education advocates to include AT in their advocacy efforts. We also hope advocates from the Protection and Advocacy for Assistive Technology (PAAT) programs, who have not focused on special education, will begin to see the public schools as a funding source for AT. Finally, we hope advocates will consider section 504 of the Rehabilitation Act as an avenue for funding AT for children with disabilities who are in regular education.
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.
The local educational agency (LEA) is responsible for providing special education services without cost to the parents or student. The provisions discussed in this article apply to students ages 3 through 21. Part H of IDEA, which we do not discuss, covers children from birth through age two. [Early intervention services for 0-2 year olds include AT services and devices. 20 U.S.C. § 1472(2)(E)(xiii).]
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. 20 U.S.C. § 1412 (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, 458 U.S. 176 (1982), 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.
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. 34 C.F.R. § 300.343(A)(d) .
AT IN THE SCHOOLS -- WHAT IS IT?
Since 1990, IDEA has included definitions for AT. 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. It includes evaluations, adaptations, maintenance or repair of AT devices. It also includes training or technical assistance for professionals, the individual or, where appropriate, the family. 20 U.S.C. §§ 1401 (a)(25) & (a)(26); 34 C.F.R. §§ 300.5 & 300.6.
Examples of AT devices used in schools:
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. 34 C.F.R. § 300.308.
HOW TO OBTAIN AT FROM
THE SPECIAL EDUCATION SYSTEM
1. SEND REQUEST TO THE IEP COMMITTEE:
Requests for special education services, including AT, should be made in writing to the IEP committee. This starts the referral process to determine what is necessary.
2. EVALUATIONS AT LEA EXPENSE:
3. CRITERIA FOR AT APPROVAL:
Under the Rowley standard, the IEP committee must approve an AT device if it is needed to ensure reasonable educational progress in the least restrictive setting. AT should be approved if it will enable a child to remain in a regular classroom. 34 C.F.R. § 300.550(b)(2).
4. OTHER ISSUES:
APPEALS
1. The Impartial Hearing:
A parent who disagrees with a proposed IEP can request a hearing. The parent can be represented by an attorney or other advocate and can present witnesses and other evidence to support the appeal. 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.
2. Status Quo Protection:
The current program remains in place during the appeal. 20 U.S.C. § 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.
Also, if a student moves, the new school's IEP committee does not recommend the computer and the parents request a hearing, the new school must provide the computer until the case is resolved. OSEP Policy Letter to Rieser; 2 EHLR 211:403 (7/17/86).
SECTION 504 OF THE 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.
If such a student needs an AT device to fully participate in school activities, Section 504 may require the school to provide it. Section 504 will, in many cases, also require payment for training, repairs and maintenance.
Examples of AT which can be funded under Section 504:
The school must take reasonable steps to ensure participation in a regular classroom. Purchase of a specially designed desk may be required.
The school may be required to purchase a special monitor or computer screen overlay to enlarge characters on the screen. If computers are used in the regular curriculum, the school must take all reasonable steps to make those computers useable by children with disabilities.
OBTAINING AT UNDER SECTION 504
Schools must develop procedures to determine Section 504 eligibility and evaluate needs of children with disabilities not covered by IDEA. Schools may use special education procedures and the IEP to do this. If not, their procedures must include the following:
AT COURT WATCH - 1
Fred C. v. Texas Health and Human Services Commission
924 F. Supp. 788 (W.D. Tex. 1996): Maureen O'Connell and Garth Corbett of Advocacy, Inc. (Texas) and Lewis Golinker, formerly of NAPAS, are co-counsel. Medicaid denied funding for an augmentative communication device (ACD) for a 47 year old nursing home resident. The court granted summary judgment to the plaintiff, Fred C.
The court held that an ACD is a covered benefit under the home health care and prosthetic devices categories, optional services which Texas includes in its Medicaid plan. The court also criticized Texas Medicaid for covering ACDs for children under 21 through its Early and Periodic Screening, Diagnostic and Treatment (EPSDT) services plan while declining coverage for adults, suggesting that this is a denial of equal protection under the rational basis test.
The state has appealed to the Fifth Circuit Court of Appeals. This will be the first case involving an ACD to go to a Circuit Court since Myers v. Reagan, 776 F.2d 241 (8th Cir. 1985). Briefs are due during August and September.
DEPARTMENT OF EDUCATION
POLICY LETTERS ON AT
The U.S. Department of Education's Office of Special Education Programs (OSEP) has issued many policy letters related to AT. These can generally be found in the Individuals With Disabilities Education Law Reports (IDELR), formerly the Education for the Handicapped Law Reports (EHLR). Some important policy letters are summarized below.
Before AT was specifically defined in IDEA and in federal regulations, OSEP made it clear that AT would qualify as special education, a related service or a supplementary aid or service. OSEP Policy Letter to S. Goodman, 16 EHLR 1317 (8/10/90).
Although computers and other technological equipment are not specified in list of related services, they may be required. Id.
The related services list is not exclusive. It includes orientation and mobility training for students who are blind. OSEP Policy Letter to Anonymous, 13 EHLR 213:198 (2/13/89). It also includes large print books and adapted spoons. OSEP Policy Letter to Hon. W. Teague, 20 IDELR 1462 (2/15/94).
The IEP committee must assess "the student's functional capabilities and whether they may be increased, maintained, or improved through the use of [AT] devices or services." OSEP Policy Letter to J. Fisher, 23 IDELR 565 (12/4/95).
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. Id.
Hearing, vision, communication and motor abilities are properly included in the school's AT assessment. OSEP Policy Letter to T. Bachus, 22 IDELR 629 (1/13/95).
If a student requires eyeglasses in order to receive a free appropriate public education (FAPE), the school must provide the eyeglasses at no cost to the parents. Id.
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. OSEP Policy Letter to D. Naon, 22 IDELR 888 (1/26/95).
Even if AT were considered only a related service, it could be provided during the summer as the sole component of a summer program. OSEP Policy Letter to Hon. T. Libous, 17 IDELR 419,420 (11/15/90).
If a wheelchair is a required related service under 34 C.F.R. § 300.13, the 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. OSEP Policy Letter to J. Stohrer, 13 EHLR 213: 211, 212 (4/20/89).
If parents agree to use family-owned AT to fulfill IEP, school is responsible for maintenance and repair if damaged on schoolbus or at school. OSEP Policy Letter to Anonymous, 21 IDELR 1057 (8/9/94); 34 C.F.R. § 300.6(e)(f).
A parent's use of insurance to pay for special education and related services is voluntary. If the parents refuse to consent to use of insurance, special education services cannot be denied. OSEP Policy Letter to Dr. O. Spann, 20 IDELR 627 (9/10/93).
A school must provide an AT device for home use if needed to ensure that the child receives a FAPE. OSEP Policy Letter to Anonymous, 18 IDELR 627 (11/21/91).
A hearing aid is a covered device under the definition of "AT device." 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 P. Seiler, 20 IDELR 1216 (11/19/93).
Administrative Hearings
Bill Furber, of Maine Advocacy Services successfully represented a three-year old at a hearing regarding Medicaid's denial of a wheelchair ramp. The Maine Medical Assistance Manual specifically states that "any durable medical equipment not listed may be reimbursed by Medicaid with authorization prior to provision (APTP) if the equipment is prescribed by a physician and it is the most cost effective equipment available that meets the medical needs of the recipient. . . " The decision recognized both the doctor's authority and the cost savings as compared to institutionalization. The decision stated that the ramp need not be exclusively for medical use, but must be "primarily and customarily used to serve a Medical purpose."
To request a copy of this decision, refer to Anonymous in Maine, Docket 95-103, Decision date 4/29/96
Jim Engstrand, of Rhode Island Protection and Advocacy System, Inc. successfully represented a 17-year-old at a hearing regarding Medicaid's EPSDT denial of an environmental control system. The denial stated that the ECS did not fall within the scope of Section 1905 of the Social Security Act. The decision found that the appellant had proven that the device would ameliorate the effects of her severe disabilities and did fall within the scope of EPSDT services.
To request a copy of this decision, appellants initial post-hearing memorandum, and/or appellants reply post-hearing memorandum, refer to M.H. in Rhode Island, Docket 95-1300, Decision date 6/18/96.
Steven Elliot, of Minnesota Disability Law Center, successfully represented an 11-year-old boy with multiple severe disabilities at a hearing regarding Medicaid's denial of a Red Chief stand-up wheelchair. The issue on appeal was medical necessity. The decision quoted from letters submitted by doctors on behalf of the child and stated that "the Petitioner has established by a clear preponderance of the evidence that the requested equipment will maximize his function. . . is medically necessary . . . is the most appropriate, least [expensive] health service for him and is an effective use of medical assistance funds."
To request a copy of this decision, refer to F. P. in Minnesota, Docket 44641, Decision date 6/21/96.
AT COURT WATCH - 2
Ralabate v. Wing
93-CV-0035E(H) (W.D.N.Y. 6/26/96): James M. Morrissey of New York's PAAT program in Buffalo and attorney for the National AT Advocacy Project represented the plaintiffs. Plaintiffs, dually entitled for both Medicaid and Medicare, sought Medicaid funding for electric wheelchairs. Like similar persons in other states, plaintiffs could not obtain the wheelchairs because Medicaid would only pay an amount which would bring the purchase price up to the amount approved by Medicare through its fiscal intermediary (a regional insurance carrier).
The court ruled that the policies and practices involved do not violate the federal Medicaid laws and regulations cited by plaintiffs, including: (1) the single agency requirement, (2) the comparability of services requirement, (3) the sufficiency of services requirement, (4) the equal access requirement and (5) the fair hearing requirement. A decision on whether to appeal to the Second Circuit has not yet been made. We have learned, however, that the problem has subsided since Medicare appointed a new fiscal intermediary for our region.
NOTE: Copies of the briefs and other pleadings are available.
NATIONAL AT ADVOCACY PROJECT
Acknowledges
ATTORNEY ADVISORY BOARD
A six-member Attorney Advisory Board has been appointed to assist the National AT Advocacy Project:
Jack Bach, Esq., Mississippi P&A System for DD, Inc.
Cynthia Berger, Esq., Disabilty Law Center of Alaska
Julie Lippman, Esq., The Advocacy Center for Persons
with Disabilities (Florida)
Monica Murphy, Esq., Wisconsin Coalition for Advocacy
Ed Myers, Esq., MAP-DLC (Montana)
Maureen O'Connell, Esq., Advocacy Inc. (Texas)
The Advisory Board will meety monthly by telephone conference to advise and assist the National AT Project in several areas including: Identification of national and regional AT funding barriers, identifying advocacy strategies to overcome them; development of training programs for PAAT attorneys and advocates; prioritizing how the National Project uses its limited resources to assist PAAT advocates in their advocacy efforts.
ACKNOWLEDGMENTS
The AT Advocacy Project acknowledges the contributions of Ronald M. Hager of Neighborhood Legal Services to this Special Education article.
We also acknowledge the use of training materials provided to us by Brian Hartman and Bill Fleener, attorneys with the Delaware and Michigan PAAT programs.
Please send us any training materials you may have prepared.