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 5
August/September 1997
Copyright 1997, Neighborhood Legal Services, Inc.
IDEA REAUTHORIZATION: MORE
SERVICES FOR
CHILDREN, GREATER ROLE FOR PARENTS
AND INCREASED RELIANCE ON AT
INTRODUCTION
After years of debate, the amended Individuals with Disabilities Education Act (IDEA) became law on June 4, 1997. The new law, on balance, enhances services available to children with disabilities, strengthens the role of parents and increases reliance on AT to ensure that students receive an appropriate education.
This article focuses on the most significant changes to IDEA, especially as they relate to AT. Most changes became effective immediately. Some are effective on July 1, 1998. Unless indicated otherwise, all changes became effective immediately.
DEFINITION OF APPROPRIATE
Advocates regularly confront the Supreme Court's test for appropriate: a school need not provide a child with the best education or one which will maximize a child's potential, but only one which ensures educational benefit. Board of Education v. Rowley, 458 U.S. 176, 188-89 (1982).
While IDEA still requires an "appropriate" education, findings in the new statute may expand a school's obligation to children. Significantly, Congress found that the education of children with disabilities can be made more effective by supporting development of school personnel to ensure that children "have the skills and knowledge necessary to enable them--
20 U.S.C. § 1400(c)(5)(E)(emphasis added).
Congress stressed that an appropriate education should meet students' unique needs and "prepare them for employment and independent living." Id. § 1400(d)(1)(A). States must, commencing July 1, 1998, develop goals for the performance of children with disabilities which will promote this requirement. Id. § 1412(a)(16)(A)(i).
IEP DEVELOPMENT
The statute significantly changes the individualized education program (IEP) development process. It codifies what had only been in regulation, adds new requirements and changes others. Effective July 1988, the IEP team must include the parent and at least one regular education teacher if the child is or may be participating in "the regular education environment." Id. § 1414(d)(1)(B).
Evaluations
Evaluations should be more functional to help determine whether the student has a disability and, if so, to determine his or her educational needs. Id. § 1414(a)(1)(B). They must be conducted before the initial provision of services and before a student is declassified. Reevaluations must be conducted every three years, and more frequently if conditions warrant or if the teacher or parent requests it. Id. § 1414(a)(1)(A) and (2),(c)(5).
IEP Content
Several noteworthy changes go into effect in 1998. The IEP must list all supplementary aids and services, program modifications, and supports for school personnel which will help the child to: attain annual goals; participate and progress in the general curriculum, if appropriate; and participate in extracurricular and nonacademic activities with both disabled and nondisabled peers. Id. § 1414(d)(1)(A).
When developing the IEP, the IEP team must consider the use of braille for blind and visually impaired students; the use of and instruction in the child's language and mode of communication for deaf or hard of hearing students; and, for all students, whether the child requires AT. Id. § 1414(d)(3)(B).
Transition Services
The new law removes any doubts about whether AT could be provided as part of transition services. The transition services definition was amended to add related services to the types of services to be provided. Id. § 1401(30)(C).
Effective in 1998, the initiation dates for transition planning are also changed. Beginning at age 14, the IEP must include the transition service needs relating to the student's course of study. Id. § 1414(d)(1)(A)(vii)(I). Beginning no later than age 16 actual transition services are to begin, including any interagency responsibilities. Id. § 1414(d)(1)(A)(vii)(II).
LEAST RESTRICTIVE ENVIRONMENT
The statute fosters increased efforts to educate students with disabilities in the least restrictive environment. Id. § 1414(d)(1)(A)(i) - (iv). IDEA now has a definition for "supplementary aids and services." These include aids, services and other supports, and are to be made available in regular education classes and "other education-related settings" to enable children with disabilities to be educated with their nondisabled peers to the maximum extent appropriate. Id. § 1401(29). Clearly, AT devices and services are included in this definition. These supports must be provided in settings other than the classroom, such as extracurricular settings. See 34 C.F.R. § 300.306. Thus, it is now even clearer, for example, that students who need alternative communication systems should be able to use them in after school and other nonacademic settings. Any such use must be listed on the IEP. Id. § 1414(d)(1)(A)(iii).
ASSISTIVE TECHNOLOGY
Effective in 1998, the need for AT must be considered for all students. Id. § 1414(d)(3)(B)(v). Effective immediately, all states must have interagency agreements so that all public agencies, including Medicaid, that are responsible for providing services that are also considered special education services (including AT), fulfill their responsibilities. The public agency's financial responsibility must precede that of the school. If an agency does not meet its obligation, the school must provide the services, but may seek reimbursement from the public agency. The interagency agreement must specify how various agencies will cooperate to ensure timely and appropriate delivery of services. Id. § 1412(a)(12).
What is the effect of this change? The definitions for AT devices and services were added to IDEA in 1990. As originally defined, AT services included coordinating other services with AT devices "such as those associated with existing education and rehabilitation plans and programs." Id. § 1401(a)(26), now recodified as § 1401(2)(D). Other transition requirements underscored the responsibility of the vocational rehabilitation (VR) agency to provide services to students while they were still in school. See 34 C.F.R. § 300.347(b). It would now seem clearer that the obligations of VR agencies, where there is dual eligibility, would precede the obligations of local school districts.
POLICY LETTERS
The law limits the use of U.S. Department of Education policy letters. They cannot be used to establish rules for compliance, but are to provide informal guidance and are not legally binding. Each quarter, the Secretary of Education must publish in the Federal Register, and widely distribute, a list and summary of the policy letters issued. Any which the Secretary determines to be of national significance must have a statement to that effect and must be widely distributed. Within one year the Secretary must issue formal written guidance on those policies. 20 U.S.C. § 1406.
In earlier articles, we have summarized the AT-related policy letters. See August 1996 issue of AT Advocate, pp. 10-11; James R. Sheldon, Jr. and Ronald M. Hager, Funding Assistive Technology for Persons with Disabilities: The Availability of Assistive Technology Through Medicaid, Public School Special Education Programs, and State Vocational Rehabilitation Agencies, 31 CLEARINGHOUSE REVIEW 50, 70-72 (May-June 1997). This new language regarding policy letters should not deter advocates who have relied on them in the past, as the new language simply states what the law has always been.
Policy letters, as an official interpretation of the Department of Education, should carry considerable weight as to the proper interpretation of IDEA. Courts and others charged with enforcing the law must give considerable deference to an agency's interpretation of a statute that it administers, and may "not substitute its own reading unless the agency's interpretation is unreasonable." Skandalis v. Rowe, 14 F.3d 173, 178 (2d Cir. 1994)(citing Chemical Mfrs. Ass'n v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125 (1985); Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)).
PRIVATE SCHOOL PLACEMENTS
Several changes relate to children placed in private schools by their parents. Special education and related services, including AT, may be provided on the site of a parochial school "to the extent consistent with law." 20 U.S.C. § 1412(a)(10)(A)(i)(II). As a result of this amendment, the Supreme Court sent three cases back to their respective circuits for reconsideration based on this language. United Sch. Dist. No. 259 v. Fowler, 117 S. Ct. 2503 (1997); Bd. of Educ. v. Russman, 117 S. Ct. 2502 (1997); K.R. v. Anderson Comm. Sch. Corp., 117 S. Ct. 2502 (1997).
MEDIATION
The statute mandates that states and school districts have available a mediation process to resolve complaints, at least whenever a hearing is requested. Mediation must be voluntary and cannot be used to deny or delay a parent's right to a hearing. Mediators must be impartial, trained in mediation techniques and knowledgeable of special education law. All discussions during mediation sessions are to be confidential. Id. § 1415(e).
ATTORNEY'S FEES
New restrictions limit the availability of attorneys' fees. With a request for a hearing there must be a statement describing the problem giving rise to the hearing request and a proposed resolution, to the extent known and available. Id. § 1415(b)(7). If this statement is not submitted, attorneys' fees can be limited. Id. § 1415(i)(3)(F)(iv). Fees are also not available for IEP team meetings unless the meeting is convened as a result of an impartial hearing or court decision. But, states may authorize attorneys' fees for participation in pre-hearing mediation. Id. § 1415(i)(3)(D)(ii).
STUDENT DISCIPLINE
The statute makes several changes regarding student discipline. While this article will not go into depth on this subject, a few brief comments can be made. The obligation to provide a free appropriate public education (FAPE) to all children between the ages of 3 and 21 has been amended to require the provision of a FAPE (which includes AT) to children who have been suspended or expelled, regardless of whether or not there is a connection between the student's misconduct and his or her disability. Id. §§ 1412(a)(1)(A) and 1415(k)(5)(A). For example, consider the learning disabled student who is disciplined for fighting and who uses a laptop computer for class notes, homework assignments and tests. It is determined there was no connection between his misconduct and his disability. He can now be disciplined to the same extent as nondisabled students. Id. § 1415(k)(5)(A). However, because he is still entitled to a FAPE, he would still be entitled to educational services, including the laptop.
CONCLUSION
The reauthorization of
IDEA is, in balance, a very positive move forward for children with disabilities. In
reviewing this amended law, one is struck with the very strong statements from Congress
that would suggest that the new test for what is "appropriate," under IDEA, is
an education that prepares students with disabilities to lead "productive,
independent, adult lives, to the maximum extent possible." While it may be premature
to suggest the new law tacitly overrules the Rowley decision, advocates should be
encouraged to push for a more liberal standard of what is appropriate and a more liberal
availability of AT to ensure that children with disabilities are prepared for
"employment and independent living."
AT COURT WATCH
[This issue highlights two cases from the Federal District Court in Connecticut. Both cases are co-counseled by attorneys, Shelley A. White and Sheldon V. Toubman of New Haven Legal Assistance. Briefs for both of these cases are available through the AT Advocacy Project.]
Second Circuit Will Decide if
Connecticut's
Medicaid Program can Limit Availability of AT
to Items Which Appear on Exclusive List
In September 1997, the U.S. Court of Appeals for the Second Circuit will hear arguments in DeSario v. Thomas, a case decided in January 1997. 963 F.Supp. 120 (D.Conn. 1997). DeSario is a class action challenging two Connecticut Medicaid regulations: one permits the state to deny coverage for any items of durable medical equipment (DME) not listed on the state's DME fee schedule; the other excludes specific pieces of DME from coverage, including air conditioners, air purifiers and room humidifiers. The plaintiffs challenged these provisions under the Medicaid Act and the Due Process Clause of the Fourteenth Amendment.
The named plaintiffs sought DME under the federal home health services category. 42 U.S.C. § 440.70(b)(3) ("medical supplies, equipment, and appliances suitable for use in the home"). The specific devices requested included: an environmental control unit, an air conditioner, an air purifier, a humidifier and an oil-based liquid mattress.
The District Court held that plaintiffs had satisfied preliminary injunction criteria by showing a likelihood of success on the merits with respect to two specific claims. First, it held that the state's use of an exclusive DME list "violates federal Medicaid law because it improperly limits the amount, duration, and scope of medically necessary durable medical equipment." 963 F.Supp. at 130; see 42 C.F.R. § 440.230(a). Two factors were critical to this holding: there is no procedure to update the list as new equipment comes on the market, even if the new items meet the state's general definition of DME; and there is no mechanism for a recipient to demonstrate that unlisted but medically necessary equipment otherwise meets the definition of DME, such that it can be added to the list or otherwise be considered for prior approval.
The court was careful to point out that plaintiffs did not establish a likelihood of success on the merits of its claim that the use of a list is unlawful per se. Citing the Supreme Court's holding in Beal v. Doe, 432 U.S. 438, 444 (1977)(the Medicaid Act "confers broad discretion on the States to adopt standards for determining the extent of medical assistance" offered in their Medicaid programs), and the Health Care Financing Administration (HCFA) Medical Assistance Manual, § 5.50-00 (February 16, 1977) (permitting a state to list those items for which it will reimburse), the court held that the use of a list would be valid under federal regulations so long as there are reasonably available procedures for seeking either modifications or exceptions to the list. 963 F.Supp. at 131-132.
The court next held that the state's categorical exclusion of coverage for air conditioners, air purifiers and room humidifiers, without considering medical necessity, violates federal Medicaid law. The court was again careful to point out that it was not holding that a state could not, in an appropriate case, make the decision that certain items of DME are never medically necessary:
Under the Medicaid Act, a state may "reasonably exclude some procedures on the basis that they are never, or generally never, of sufficient medical necessity." 963 F.Supp. at 133, quoting Hodgson v. Board of County Commissioners, County of Hennepin, 614 F.2d 601, 607 (8th Cir. 1980).
In the case before the court, however, the state did not take the position that air conditioners, air purifiers and room humidifiers are never medically necessary to treat certain conditions. Instead, the items were excluded under the state's definition of DME because the items are useful to individuals in the absence of illness or injury &emdash a rationale rejected by the court.
For preliminary injunction purposes, the court rejected plaintiffs' claim that its policy denied coverage of DME due to diagnosis, type of illness or condition. 963 F.Supp. at 134-135; see 42 C.F.R. § 440.230(c). The court found that, based on the record supporting the preliminary injunction motion, there was not sufficient evidence to establish that either the environmental control unit or room humidifier were rejected because of the particular person's diagnosis or condition.
The state has appealed the District Court's decision. The Second Circuit's decision, expected to be issued in late 1997 or early 1998, will be a very important one for AT advocates.
Connecticut District Court
Explains
Due Process Requirements in Prior Approval
Process for DME Under Medicaid
In Ladd v. Thomas, 962 F.Supp. 284 (D.Conn. 1997), a class action was filed alleging violations of federal Medicaid law and constitutional due process in processing requests for prior approval of durable medical equipment (DME). Plaintiffs alleged that the state never provided notices of decisions or the right to a fair hearing when DME was involved. The state conceded that it was required to provide a notice and the right to a fair hearing whenever a DME request is denied outright.
The court granted partial summary judgment to plaintiffs, holding that federal Medicaid law also requires the state to provide notice of its decision and of the right to request a fair hearing: whenever approval amounts to a modification of the request and reduces what the Medicaid recipient has requested; and whenever the state issues an oral denial of services in response to a prior approval request made by a vendor on a recipient's behalf. The court also held that when the state fails to act upon a request with "reasonable promptness" [see 42 U.S.C. § 1396a(a)(3)], the recipient is entitled to notice of the delay and the right to a hearing.
The court held that no notice is required when the state issues a "pink slip," stating that additional information is needed to rule on the request. The court reasoned that notice is only required when the state "acts" on a request for DME [see 42 C.F.R. § 431.206(b) & (c)(2)] and that issuance of the pink slip does not constitute such action. 962 F.Supp. at 289-290. The court did hold that issuance of the pink slip does not relieve the state of its obligation to act with reasonable promptness, however. As noted above, upon failure to act with reasonable promptness, the court held that a notice is required which explains the delay and the right to a fair hearing. Noting that federal law does not define "reasonable promptness," the court urged the parties to agree on a time frame for ruling on prior approval requests or the court would do so for them. 962 F.Supp. at 291 (citing two cases where courts have imposed 21-day and 15-day time limits for agency action).
The court rejected plaintiffs' arguments seeking the right of recipients to submit DME requests directly, rather than through vendors. 962 F.Supp. at 294-295. The court did rule, however, that notice of decisions must be sent to the recipient and that notice to the physician or the DME vendor would not suffice. The court reasoned that "[f]ederal Medicaid law clearly gives the recipient the right to notice and a hearing because it is the recipient who has the 'property right,' the right to a covered Medicaid service." Id. at 292, citing 42 U.S.C. § 1396a(a)(3).
VOCATIONAL REHABILITATION UPDATE
New Federal Policy Requires
State VR Agencies
to Provide Assistance that Will Maximize Employment
On August 19, 1997, the federal Rehabilitation Services Administration (RSA) issued a Policy Directive, RSA-PD-97-04, which governs State Vocational Rehabilitation (VR) agencies. This new directive requires State VR agencies to approve vocational goals and the services to meet them to enable persons with disabilities to maximize their employment potential. This directive represents a dramatic shift in RSA policy and should be publicized to all who may be affected by it.
In an earlier issue of AT Advocate and in the article we published through Clearinghouse Review, we discussed State VR agencies as funding sources for assistive technology (AT). In those articles, we specifically discussed the concept of maximization of employability. See November 1996 issue of AT Advocate, pp. 31-32; James R. Sheldon, Jr. and Ronald M. Hager, Funding Assistive Technology for Persons with Disabilities: The Availability of Assistive Technology Through Medicaid, Public School Special Education Programs, and State Vocational Rehabilitation Agencies, 31 CLEARINGHOUSE REVIEW 50, 65 (May-June 1997). We pointed out that both the statutory language in Title I of the Rehabilitation Act and the legislative history to Title I require state VR agencies to provide assistance that will enable individuals with disabilities to "maximize employment, economic self-sufficiency, independence, and inclusion and integration into society." 29 U.S.C. § 701(b)(1); see also S. Rep. No. 388, 99th Cong., 2d Sess. 5 (1986). (We refer the reader to these two articles for a discussion of case law on the maximization issue, most of which is favorable to the individual seeking VR agency sponsorship.)
RSA is that branch of the United States Department of Education which oversees the delivery of VR services under Title I of the Rehabilitation Act. It also issues regulations to implement the requirements in Title I. See 34 C.F.R. Part 361 (final VR regulations which appeared in February 11, 1997 issue of the Federal Register). RSA also periodically issues Policy Directives which provide extensive interpretations of the mandates of the relevant law and regulations.
The August 1997 Policy Directive concerns the "employment goal" for an individual with a disability. It rescinds a 1980 policy and describes the standard for determining an employment goal under Title I. RSA's 1980 policy, 1505-PQ-100-A, identified "suitable employment" as the standard for determining an appropriate vocational goal for an individual with a disability. In that policy and in an earlier, 1978 policy (1505-PQ-100), RSA described "suitable employment" as "reasonable good entry level work an individual can satisfactorily perform."
The 1978 and 1980 policies, which are now rescinded, led many state VR agencies to drastically limit the employment goals that would be approved under an individualized written rehabilitation program (IWRP). Under the old policies, many State VR agencies would not approve goals, in most instances, if they required advanced degrees. Many agencies would not approve the training and other services needed to allow a person to maximize employment potential. This led to the litigation discussed in the earlier articles.
RSA's clear change in policy is best expressed in the following quote from the August 1997 Policy Directive:
"The guidance provided through this Policy Directive is intended to correct the misperception that achievement of an employment goal under Title I of the Act can be equated with becoming employed at any job. As indicated above, the State VR Services program is not intended solely to place individuals with disabilities in entry-level jobs, but rather to assist eligible individuals to obtain employment that is appropriate given their unique strengths, resources, priorities, concerns, abilities, and capabilities. The extent to which State units should assist eligible individuals to advance in their careers through the provision of VR services depends upon whether the individual has achieved employment that is consistent with this standard."
This new directive clarifies that cost or the extent of VR services an individual may need to achieve an employment goal should not be considered in identifying the goal in the IWRP. So, for example, an individual who has the capability of becoming a lawyer or a certified public accountant should be sponsored to pursue that goal even if it will require extensive funding of assistive technology (AT) to allow the person to work in the typical office setting. The new directive also clarifies that a person who is currently employed will, in appropriate cases, be eligible for VR services to allow for "career advancement" or "upward mobility." This could allow, for example, an individual who is blind and employed in a low-paying job answering telephones to pursue the education needed for a better position within the same setting or a separate career as a teacher or rehabilitation counselor. This could certainly involve the need for AT to meet educational or job-related requirements.
The new Policy Directive emphasizes that the State VR agency must still determine whether the individual's career choice is consistent with his or her vocational aptitude. In an effort to meet the maximization of employability requirements, however, state agencies are encouraged to make these determinations through a comprehensive assessment (such as a trial placement in a real work setting) or by establishing short-term objectives in the IWRP (such as a trial semester in college). In many cases, these trial work or educational placements should be accompanied by the availability of AT as a means of overcoming a disability-related deficit.
We at the AT Advocacy Project believe that RSA's new policy is simply a clear statement of what has been the law for many years. However, since this new directive represents a dramatic departure from previous RSA policy, it is important that information about the new directive be disseminated to individuals with disabilities and their advocates. Copies of the new policy directive are available through the AT Advocacy Project (call Vivian at 716-847-0655 ext. 271) 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.: 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 14203
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.....
- Legal Resources on the Internet
- Private Insurance Funding of AT
- Medicaid Funding of AT in Nursing Homes
NOTE: The AT Advocate is now issued bi-monthly