From the web page http://www.pai-ca.org/pubs/401801.htm Protection & Advocacy, Inc. (PAI) 5321.01 ACCESSING ASSISTIVE TECHNOLOGY From a 17-Chapter Manual Available by Chapter and in Manual Form Written by: Protection and Advocacy, Inc. (PAI) Copyright (c) 1995 by PAI - Revised January 2000 Prepared with funding provided through California Assistive Technology Project supported by funds from the National Institute of Disability and Rehabilitation Research (NIDRR), U.S. Dept. of Education, Grant #H224A30008-94. These materials are based on the laws and court decisions in effect at the time of publication. Federal and state law can change at any time. If there is any question about the continued validity of any information in this manual, contact PAI or a legal resource in your community. Protection and Advocacy, Inc. (PAI), is a private, nonprofit organization that protects the legal, civil, and service rights of Californians who have disabilities. PAI provides a variety of advocacy services, including information and referral, technical assistance, and direct representation. For information or assistance with an immediate problem, call: PAI Toll Free/TDD: (800) 776-5746 9:00 AM to 5:00 PM - Monday through Friday Central Office, 100 Howe Ave., Suite 235-N, Sacramento, CA 95825, Legal Unit - (916) 488-9950 - Administrative - (916) 488-9955 Southern California Area Office, 3580 Wilshire Blvd., Suite 902, Los Angeles, CA 90010, Tel. - (213) 427-8747 San Francisco Bay Area Office, 449 - 15th Street, Suite 401, Oakland, CA 94612, Tel. - (510) 839-0811 PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act, the Protection and Advocacy for Mentally Ill Individuals Act, the Protection and Advocacy for Individual Rights Act, and the Assistive Technology Act of 1998. Any opinions, findings, recommendations or conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations which fund PAI. ACCESSING ASSISTIVE TECHNOLOGY TABLE OF CONTENTS Chapter 1 Introduction and Overview Chapter 2 Advocacy Skills Chapter 3 Private Health Benefit Plans Chapter 4 Regional Centers Chapter 5 California Children's Services Chapter 6 Reasonable Accommodation in Employment Chapter 7 Vocational Rehabilitation (Including Loan Programs) Chapter 8 Social Security Work Incentives Chapter 9 Special Education Chapter 10 Medi-Cal Chapter 11 Medicare Chapter 12 Veteran's Administration Chapter 13 Right to Assistive Technology from Public Entities Chapter 14 Right to Assistive Technology from Private Businesses Chapter 15 Right to Assistive Technology in Higher Education Chapter 16 The Protections of The Lemon Law for Buyers of Assistive Technology Chapter 17 Resource Guide (with Table of Contents) ---------- Chapter 1 INTRODUCTION AND OVERVIEW Table of Contents Question 1. What is assistive technology under the ATA? 1-1 2. What are the goals of the ATA? 1-2 3. What activities is California supposed to do to reach the goals of the ATA? 1-4 4. What activities has California chosen to undertake in order to meet the goals of the ATA? 1-5 5. What advocacy services are available under the ATA? 1-6 Chapter 1 INTRODUCTION AND OVERVIEW The Assistive Technology Act (ATA) of 1998, Public Law 105-394 was passed by Congress in 1998. The ATA replaced an earlier law known as Technology-Related Assistance for Individuals with Disabilities Act of 1988. The ATA gives grants to states to improve access to assistive technology devices and services for individuals with disabilities. The ATA does not provide funds to buy technology for people with disabilities. Instead, it requires states to improve existing programs that are expected to provide technology and services for people with disabilities. Using ATA funds, the state is expected to: * Promote consumer-responsive programs; * Increase access to assistive technology devices and services; and * Empower people with disabilities to achieve greater independence, productivity, and integration within the community and the work force. 29 U.S.C. §§ 3001(b), 3011. California received its first grant under the ATA's predecessor in 1993. The designated lead agency is the Department of Rehabilitation (DR), which will coordinate the state's efforts to expand and improve access to assistive technology. The project in California is known as the California Assistive Technology System (CATS). You can contact CATS staff by writing to CATS, California State Department of Rehabilitation, 2000 Evergreen Street, Sacramento, CA 95815. You can also call (916) 263-8679 voice; (916) 263-8685 (TTY); or send a FAX to (916) 268-8683. 1. What is assistive technology under the ATA? The ATA provides a lengthy definition of assistive technology devices and assistive technology services. The same definition is also used in the special education law (the Individuals with Disabilities Education Act) and the Rehabilitation Act. The ATA definition says: The term assistive technology device means any item, piece of equipment, or product system, whether bought off the shelf, changed, or custom built, that is used to increase, maintain, or improve functional capabilities of individuals with disabilities. The term assistive technology service means any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device. This includes: * Evaluation of your needs, including a functional evaluation in your customary environment(s); * Buying, leasing, or otherwise acquiring assistive technology devices; * Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices; * Coordinating and using other therapies, interventions or services with assistive technology devices, such as those associated with education and rehabilitation plans and programs; * Training or technical assistance for you or, where appropriate, your family; * Training or technical assistance for professionals (including those who provide education or rehabilitation services), employers, or others who provide services to, employ or are otherwise substantially involved in your major life functions. 29 U.S.C. § 3002(a)(4). 2. What are the goals of the ATA? The ATA provides funds so that states can undertake activities that assist in maintaining and strengthening a permanent, complete statewide program of technology-related assistance for people with disabilities of all ages. The goals of California's program are to: * Increase the availability of, funding for, access to, and provision of, assistive technology devices and services; * Increase the active involvement of you and your family members, guardians, advocates, and authorized representatives, in planning, developing, implementing, and evaluating the program; * Increase your involvement and, if appropriate, that of your family members, guardians, advocates, or authorized representatives, in decisions related to the providing of assistive technology devices and services; * Increase outreach to underrepresented and rural populations, to enable these populations to benefit from the programs to the same extent as other populations; * Increase and promote coordination among state agencies, between state and local agencies, and between state, local agencies and private agencies (such as managed care providers) that are involved in carrying out activities under the ATA; * Increase awareness of and facilitate changes in laws, regulations, policies, practices, procedures, and organizations to improve the availability of assistive technology; * Improve assistive technology during transition periods; * Enhance the skills of people who provide assistive technology; * Increase awareness and knowledge of assistive technology among people with disabilities and their family members and associates, public and private agency staff who interact with individuals with disabilities, educators, technology experts, employers, and others; * Increase the capacity of public and private agencies to provide and pay for assistive technology; and * Increase awareness of the needs of people with disabilities for assistive technology devices and services. 29 U.S.C. § 3001(b). 3. What activities is California supposed to do to reach the goals of the ATA? The ATA requires that California do the following activities: * Develop and promote coordination between agencies, including public and private agencies; * Develop and implement laws, regulations, policies, practices, procedures or organizational structures that will improve access to assistive technology devices and services for people with disabilities; * Develop training materials and conduct training in the use of assistive technology devices and services; * Provide technical assistance on rights to assistive technology, on how to consider the need for assistive technology in developing any individualized plan or program authorized under state or federal law, and to increase consumer participation in accessing assistive technology; * Outreach to community organizations, people who qualify for public benefit programs, people of color, people for whom English is not a primary language, and rural populations to increase accessibility of assistive technology devices and services and to train representatives of these people. In addition, California may carry out the following activities: * Establish state or privately financed subsidy programs for accessing assistive technology such as a low-interest loan fund, an interest buy-down program, a revolving loan fund, a loan guarantee or insurance program, or a program operated by a partnership among private entities; * Loan assistive technology devices on a short-term basis to individuals, employers or public entities; * Conduct demonstrations of assistive technology devices; * Operate and expand information and referral activities; * Enter into agreements with other states to increase the ability to assist people with disabilities of all ages to learn about, obtain, use, maintain, adapt, and upgrade assistive technology; * Support partnerships and cooperation between the public sector and the private sector; and * Provide advocacy services. 4. What activities has California chosen to undertake in order to meet the goals of the ATA? * California's assistive technology program is known as the California Assistive Technology System (CATS). It intends to do the following: * Distribute assistive technology information to persons with disabilities, families, and service providers in the State of California; * Increase access to assistive technology by coordinating information and referral about the benefits of assistive technology and the availability of funding; * Increase outreach and distribute assistive technology materials and information to persons from underrepresented and rural populations in the State of California in an culturally accessible and sensitive manner; * Increase and improve the delivery of assistive technology information, devices and services; * Increase funding for assistive technology within the State of California; * Increase coordination and cooperation among state human service programs to develop consumer-responsive policies and procedures as well as provide assistive technology services and devices to people with disabilities and employees with disabilities; * Increase the number of staff able to assist people with disabilities in the use of assistive technology devices and services; and * Increase the ability of state human services agencies and public schools to provide assistive technology services and devices. 5. What advocacy services are available under the ATA? Under the Act, the protection and advocacy agency in California, Protection and Advocacy, Inc. (PAI), provides legal services to people with disabilities with respect to assistive technology devices and assistive technology services. Where appropriate and when resources are available, PAI can represent people with disabilities in all phases of informal or formal administrative and judicial processes. You can contact PAI at (800) 776-5746. The Act also allows states to provide additional advocacy services. These are services provided to assist people with disabilities and their family members, guardians, advocates, and authorized representatives to access assistive technology devices and services. This may include individual case management, representation, and training for successful self-advocacy. These activities will be undertaken by the CATS administrative offices and various ATA contractors. ---------- Chapter 2 ADVOCACY SKILLS Table of Contents Question 1. What is advocacy? 2-1 2. Who can be an advocate? 2-1 3. Do I need a lawyer? 2-1 4. What do I need to know to be a good advocate? 2-2 5. What is evidence? 2-3 6. How can I "discover" what the agency's position is? 2-4 7. What steps can I take to protect my rights? 2-4 8. How can I become a better negotiator? 2-5 9. Where do I find the laws and other rules that apply to a particular agency or program? 2-8 Attachments 2-9 Chapter 2 ADVOCACY SKILLS This manual has information about specific service systems. However, you may need to advocate to get the services and benefits you are entitled to receive. This section will describe general advocacy strategies that may help you get the services you need. 1. What is advocacy? As you will see in the following chapters, there are laws and rules that public agencies must follow. Some of the rules deal with the assistive technology devices and services you need. If you are entitled to assistive technology benefits, but the agency refuses to provide them for you, you can speak up and fight for your rights. This is advocacy. You can appeal or file a complaint against most decisions you disagree with as long as you meet the deadlines. The laws, and sometimes agency policies, create different deadlines. You need to ask what they are. 2. Who can be an advocate? Anyone can be an advocate. You can be an advocate for yourself. You can be an advocate for someone else. You can have someone else be your advocate. Be sure that when you advocate for someone else, or someone advocates for you, both of you agree on what you want to accomplish. It is best to write down that you want someone to be your advocate, or to have the person you are advocating for agree in writing that you will be his advocate. Write out the goal you want, such as getting a new assistive technology device or service, or keeping the device or service you already have. 3. Do I need a lawyer? In some cases you can be just as effective as a lawyer. Sometimes, you can be even more effective than a lawyer. If your case is complicated, you may want to get an advocate to help you. The advocate does not have to be a lawyer, even for a fair hearing before an administrative law judge. You can get advocacy help from a number of agencies in California, including PAI. You can find a list of some of these agencies in Chapter 17 of this manual. PAI can help you advocate for yourself, represent you in some cases, or refer you to other lawyers or advocates. If you want to file a lawsuit, you will probably need a lawyer to do that. 4. What do I need to know to be a good advocate? Common sense is a good guide to being an advocate. Think about what you would want to know about the case if you were a neutral person hearing the facts for the first time. * Gather all the facts. You can get facts by looking at all the documents about the dispute that are in your file at the agency. You can review your own file at any agency. You can get copies of anything in your own file. You may have to pay for copying those papers. California law says that the charge for copying cannot be more than 10¢ per page unless a different amount is set by statute (law).[Note 1] The charge must be for the copies only and not the time it takes for someone to do the copying. You should copy all the documents that are important to the case, even if they may not support your position. You will want to refer to them later. * Learn the rules. Educate yourself about the standard the agency used to deny your request. Use that standard to develop your argument for why the agency should change its decision. In the following chapters, you will become familiar with some of these standards. Standards such as "medically necessary", "educationally necessary", and "reasonable accommodation" are the most common. If you do not know what the standard is, ask the agency or talk with an experienced advocate. Also ask what procedures you need to follow to protect your rights. The procedures vary from one agency to another. If you don't follow them correctly, you may lose your right to challenge the decision with which you disagree. * Keep a diary or log. List everything that you and other people say in a telephone conversation or a meeting. Include a list of who was at the meeting and who said what. It will help to remind you later of what happened. * Ask questions about anything you do not understand. You have the right to have all of your questions answered in a way you can understand and in a language you understand. If there is something you still don't understand, ask more questions. There is no such thing as a "dumb question." * Be a good listener. It is important to listen to arguments by the other side. Each side should be talking about the same issues. What facts does the other side have or say it has? You should try to argue about only those things that are important for this dispute. You should try to make the issues as clear as possible by limiting the discussion to only the facts that are actually in dispute. The clearer the issues are, the more likely your arguments will be heard. * Be prepared. Have all the information you need about what the other side thinks. You might draw a line down the middle of a piece of paper and list your facts and evidence on one side and the agency's facts or evidence on the other side. * Be assertive. You don't need to be angry, but you do need to speak up for yourself. * Get help when you need it. If you feel uncomfortable about going to a meeting alone, don't go alone. You always have the right to take someone with you. That person can help keep you focused on the issues and take notes at meetings. Some moral support always helps. 5. What is evidence? Evidence is anything that can prove a fact. In most hearings, the rules of evidence are relaxed and easier to follow than in a court of law. What a person says in a hearing is evidence. Written records are evidence. Written reports from doctors, occupational or physical therapists, speech pathologists, schools, etc., are evidence. As an example, let's say that you need to prove that you are eligible for an item of durable medical equipment from Medi-Cal. You would submit the reports of evaluations and assessments done by someone like an occupational therapist. If an assistive technology evaluator testifies at a hearing, what he says is evidence. The judge gives some evidence more weight. For example, a person's testimony has more weight than the same person's written report alone. Because there is a disagreement about facts, the other side will probably submit evidence to prove their version of the facts. You will want to know in advance what kinds of evidence the other side has. Getting that information is called "discovery." 6. How can I "discover" what the agency's position is? There are a number of ways to get the agency to state their position on the facts and their reasons for their position. * Have someone from the agency write down the facts he believes support the agency's position. * Have someone from the agency write down what laws or regulations the agency is basing its position on. * Have the agency explain its decision in your native language. You are entitled to have the appeals procedure explained in your native language. Title VI of the Federal Civil Rights Act guarantees these rights. * If you filed an appeal and are going to a hearing, you and the agency, in most cases, must exchange a list of witnesses and the documents you may introduce several days prior to the hearing. Ask the agency or an advocate how many days in advance you need to exchange your lists of witnesses and documents. * In most agency appeals, you have a right to get copies of the documents the agency intends to introduce, a list of the witnesses they expect to call, and a statement about the nature of their testimony several days before the hearing. 7. What steps can I take to protect my rights? * Be assertive. You have a right to receive services; agency staff are there to help you receive services. * If you don't understand, ask questions. You have a right to get information from every agency in a form you understand. Ask the agency to give you information in the language that you understand best. If you don't understand what someone tells you, ask for a further explanation. Ask as many questions as you need to ask in order to fully understand. * Share information. Your opinions are valuable. You know your needs at least as well as the professionals who conducted the evaluations. Don't be afraid to voice your opinion. * Be prepared. Before going to a meeting, review your case file. Be sure you know what you want, and the reasons you want it. Make a list of questions you want answered. * Be willing to listen. After you request an assistive technology device or service or ask a question, listen to the agency's response. As you listen, ask yourself if the response answers your question. If you are unsure of the response, ask more questions. * Keep records. Keep all the papers concerning your case together in a file. Keep a diary or log of verbal contacts. Write down the name of each person you talked to and when you talked to that person and the nature of your discussion. * Get help. If you feel uncomfortable about going to a meeting alone, don't. Take a friend, a relative or a representative from an advocacy organization. You always have the right to take someone with you. That person can often keep you focused on the problem, take notes about what was decided, and give you support. 8. How can I become a better negotiator? Essentially, all the meetings you have with the agency involve negotiation. Negotiation is simply the effort of two parties to reach an agreement. It generally includes discussion, offers or proposals, and give and take. You may not always be able to resolve disagreements using negotiation. In that case, you can use the formal hearing or complaint process discussed in this manual. You can use the approach outlined below to help you prepare for a negotiation. Step 1: Write a one-paragraph description of the problem. Include the causes of the problem as you understand them. Then, clearly set out the changes that you want made. Include a statement of your "bottom line" for a negotiated settlement. This is the point you will not go below, but will go to a hearing or file a complaint instead. Do not share this with the agency, these are your notes to help you negotiate. Step 2: To identify the person you need to begin negotiating with, look for the authority closest to the problem. For example, if the problem is a disagreement with a case manager over the need for assistive technology, you may be able to negotiate with the case manager. If the case manager is denying a service because of an agency policy, you will need to negotiate with someone with more authority, such as a supervisor or higher administrator. It will do no good to negotiate with someone who cannot give you the device or service you believe you need. Demand to speak with someone who has authority to settle the dispute. Step 3: Analyze the strengths and weaknesses of the agency's position. These depend on: * Its consistency with the law; * The facts as you can present them; * Whether you can identify other circumstances where the agency provided similar assistive technology; * Whether you can develop popular support for your issue among other consumers and family members; and * Any influential support (news media, elected officials) you may be able to get. List the strengths and weaknesses of the agency's case and the strengths and weaknesses of your case. Step 4: Identify the stated reasons and what you believe to be any other unstated reasons for the agency's opposition. Make two separate lists. These are the agency's stated and unstated interests. Among others, they could include: * Does not agree that I need the device or service; * Does not want to question or grant an exception to a policy; * Is afraid to set a precedent; * Is afraid of potential liability; * Does not really understand my needs; * Has not seriously considered my request; * Is overwhelmed by my request; * Is committed to long-established habits and procedures; and * Feels the cost is too great. Step 5: Plan and carry out your strategy. Your strategy is your plan for action. It sets out how you will try to get the agency to agree to what you want. Focus your strategy on what you think the agency's interests are, especially its unstated interests. If you can satisfy the agency's interests and still get what you need, it is likely your negotiation will be successful. As part of your plan, you may also want to research facts; bring an expert; prepare an agenda and questions; select possible negotiators; determine negotiable and non-negotiable points; set a convenient date, time, and place for negotiation; anticipate the agency's concerns and strategies; prepare your responses; and set deadlines. Always have a contingency plan to use if your first plan fails. You will find a work sheet that you can use to plan your negotiation at the end of this chapter. See Attachment at page 2-10. 9. Where do I find the laws and other rules that apply to a particular agency or program? You will find the laws and rules that apply to different agencies in a variety of places. Both federal and state statutes govern most agencies. Federal and state regulations, which are also law, must be consistent with the governing statutes. However, court decisions are also important because they interpret the statutes and regulations. Finally, some agencies have established policies. Agency staff sometimes pay more attention to policies than to statutes and regulations. However, these policies do not have the force of law. They are secondary to statues and regulations, and cannot conflict with them. A list of the laws and other rules cited in this manual and in similar manuals is at the end of this Chapter. See Attachment at page 2-11. If you do not have access to these laws and cases, you can ask the agency if they have a copy, or go to a law library. The staff of the library can help you find materials you want to see. ATTACHMENTS TO CHAPTER 2 NEGOTIATION PLANNER Parties Interest Issues Initial Position Fallback Positions Bottom Line Alternatives to a Negotiated Agreement LEGAL AUTHORITY STATUTES United States Code (U.S.C.). These are federal statutes. They are divided into a number of titles by subject. For example, Title 42 of the United States Code concerns health and welfare programs, Title 29 concerns labor, including rehabilitation services. You will see a citation written as 42 U.S.C. § 1396. The "§" is an abbreviation for "section," which refers to one statute or regulation. California State Statutes. California state statutes are divided by categories as well. Categories include the Education (Ed.) Code, Welfare & Institutions (Welf. & Inst.) Code, Government (Gov't.) Code, and several others. A section of the California Education Code would be cited as Calif. Ed. Code § 56000. Code of Federal Regulations (C.F.R.). These are also divided into titles that correspond with subjects. For example, 42 C.F.R. § 483.25 is a Medicaid regulation. California Code of Regulations (C.C.R.). California state regulations are divided into titles based upon subject. Title 22 covers health services such as Medi-Cal. Title 5 covers education. For example, Title 22 C.C.R. § 51521 is a Medi-Cal regulation. CASES Federal Cases. Federal cases are decisions of the federal district courts, federal appellate courts, and U.S. Supreme Court. They are divided into volumes. Cases are cited by name, volume, the page the case begins on, the page the reference section appears on, the year of the case, and the district or appellate circuit the court belongs to. For example, Friedman v. Berger, 409 F.Supp. 1226, 1228 (S.D.N.Y. 1976) refers to the case of Friedman versus Berger, in the 409th volume of the Federal Supplement, beginning on page 1226, referencing a citation on page 1228. It was decided by the Southern District of New York in 1976. Federal appellate court cases are cited as, Myers v. Reagan, 776 F.2d 241, 243 (8th Cir. 1985). This citation refers to a case decided by the 8th Circuit Court of Appeals in 1985. U.S. Supreme Court Cases are cited as Schweiker v. Gray Panthers, 453 U.S. 34, 37 (1981). California State Cases. Only cases decided by the California appellate courts or the California Supreme Court are published. Those decided in the county superior courts are not. Appellate court cases are cited as Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 8. Cases from the California Supreme Court are cited as Lucia Mar Unified School District v. Honig, (1988) 44 Cal.3d 830, 835. Endnote - California Civil Code § 1798.33. ---------- Chapter 3 PRIVATE HEALTH BENEFIT PLANS Table of Contents Question 1. My employer is self-insured. What laws does a self-insured company have to follow? 3-1 2. What evidence do I need to document my need for an assistive technology device? 3-2 3. Can a health benefit plan deny a claim because the policy states it is the provider of last resort? 3-3 4. Can a health benefit plan deny coverage or a benefit because of my disability? 3-4 5. Are there alternatives if I am rejected by a health plan because of a pre-existing condition? 3-5 6. Can I appeal if a health benefit plan rejects my request for assistive technology? 3-6 7. Do I have a right to continue my health benefit plan after I leave my job? 3-7 Chapter 3 PRIVATE HEALTH BENEFIT PLANS Private health benefit plans have no legal requirement to cover assistive technology. Whether a private health benefit plan[Note1] will buy assistive technology for its beneficiaries depends on the terms of the policy. Most health benefit plans are employment benefits. Your employer negotiates the plan and makes it available to you. You probably think of your health benefit plan as a contract between you (the employee) and the provider (the insurance company).[Note 2] The provider's responsibilities and your rights depend on the benefits set out in the policy. Sometimes you have a choice of plans. If access to assistive technology is a concern, you should review each plan's benefits carefully to see which plan gives you the best benefits for the cost. 1. My employer is self-insured. What laws does a self-insured company have to follow? The Employee's Retirement Income Security Act (ERISA), a federal law, covers employer-provided health plans. Your employer must give you information about the health plan. The information must explain benefits and requirements in plain language.[Note 3] The plan administrator must respond to requests for information within 30 days.[Note 4] The plain language version of the policy is usually a booklet called a summary of benefits or summary plan description. Employers often do not show employees the actual benefit plan, but your employer must show it to you if you ask to see it. Some summary booklets do not set out clear lists of covered services and limitations. They may not have adequate information about prior approval requirements, co-payments, or deductibles. It is important to read the summary booklet or plan carefully. If the summary booklet conflicts with the actual plan, the plan provisions control. Most plans do not list specific devices or equipment as plan benefits. You can argue that necessary assistive technology is a benefit if the plan covers durable medical equipment, prosthetic devices, or equipment associated with physical or occupational therapy. You could also argue that the plan covers augmentative and assistive communication devices under these categories or as equipment associated with speech therapy services. 2. What evidence do I need to document my need for an assistive technology device? Your health benefit plan should set out the process for requesting assistive technology. It should also set out what supporting information you need to submit. Many HMO plans say that your primary care doctor must refer you to a specialist - such as an orthopedist, physical therapist or speech therapist. The specialist will then prescribe the equipment. It is important to follow the process and document your need for the technology as required. In some cases, you should ask for a referral to a rehabilitation center, where you will probably get the most thorough and accurate evaluation. Health benefit plans will only buy technology services and equipment that are medically necessary. Your plan should define medically necessary. The definition of medically necessary usually says that the requested service or equipment must cure or alleviate a medical condition, reduce pain, or help maintain or obtain more normal function. A wheelchair is medically necessary if you need it to become more independent. A speech device is medically necessary if you need it to communicate with other people consistent with your potential. Supporting evidence, such as letters or reports from physicians or other professionals, should explain: * Your impairment; * Your functional ability without the equipment; * How the requested device will reduce the impact of your disability; * How the medically necessary definition in the policy is satisfied; * How other requirements are met; * Under which covered service(s) the requested device should be provided; and, if possible * Where in other cases, the plan has previously provided the requested device or equipment. Some plans may claim that the requested equipment is for education or convenience, but is not medically necessary. However, the fact that you will use an item in school, or for recreation, or to make your life easier, does not make it medically unnecessary. Arguments for the equipment should discuss how it will reduce the impact of your disability, regardless of where you use it. 3. Can a health benefit plan deny a claim because the policy states it is the provider of last resort? Many health benefit plans do not cover benefits that are the responsibility of another entity - including government programs such as Medi-Cal. Your response to a denial of benefits will depend on which program the plan thinks should provide the requested device. If you are eligible for Medi-Cal, California Children's Services or regional center services, by law you must use your health plan benefits first. Your plan cannot contradict this law. School districts, however, cannot make you use health benefits to get a device that your child is entitled to through special education. If the school district refuses to provide the device, you will need to decide whether to appeal the denial or ask your health plan to provide the device. (See Chapter 9 on the Right to Assistive Technology through Special Education.) If you decide to ask your health plan to provide the device, you will need a letter of denial from the school district. The health plan should not insist that you appeal the school district's denial prior to providing the requested equipment. 4. Can a health benefit plan deny coverage or a benefit because of my disability? Health benefit plans often try to deny coverage for a "pre-existing condition." Under some circumstances, this may be discrimination. Both the Americans with Disabilities Act (ADA)[Note 5] and California law [Note 6] say that a benefit plan may not, solely because of a physical or mental impairment: * Refuse to insure, or refuse to continue to insure; * Limit the amount, extent, or kind of coverage available; or * Charge a different rate for the same coverage. These laws provide an exception if the benefit plan bases its refusal, limitation, or higher rate on: * Available statistics; or * Actual experience; or * Reasonable projections. The benefit plan must show, using real facts and statistics, that the disability leads to higher health care costs. Otherwise, the plan cannot justify treating people with disabilities differently. It may be possible for you to challenge a denial of coverage. In many cases, the benefit plan has no data that your disability will, in fact, result in higher overall costs. If you have a pre-existing disability, the plan can deny coverage of the costs associated with that disability. However, treatment for illness or injuries not related to the pre-existing condition should still be a plan benefit. The benefit plan cannot make distinctions based on a perception of disability in general, or of your disability. If the plan covers power wheelchairs, refusal to pay for a power wheelchair for people with mental retardation would be discrimination. Even if the plan thinks that no one with mental retardation has the ability to learn to operate it, many people with mental retardation can learn to use a power wheelchair. The plan may only deny purchase of a power wheelchair after proving that your disability, in fact, makes it impossible for you to learn to operate a power chair safely. It is not discrimination, however, for a plan to exclude specific benefits, even if the exclusion would have a greater impact on people with disabilities. Thus, a plan can clearly state that it does not cover assistive communication devices as long as it applies the limitation consistently. In Carparts Distribution Center Inc. v. Automotive Wholesalers of New England Inc., 37 F.3d 12 (1st Cir. 1994), a federal court found that employer-provided health benefit plans might be considered employers under the ADA. In that case, they would be subject to stricter anti-discrimination mandates than health benefit providers in other contexts. 5. Are there alternatives if I am rejected by a health plan because of a pre-existing condition? If your disability does result in a non-discriminatory denial of benefits, an alternative in California may be to enroll in the California Major Risk Medical Insurance Program (MR-MIP). This state-administered program provides coverage for people who, usually because of a pre-existing condition, cannot quality for other health benefits. MR-MIP applicants cannot be eligible for Medi-Cal or for continuation of benefits under the Consolidated Omnibus Reconciliation Act (COBRA). (See Question 7.) Private health benefit plans provide benefits. You or your employer would pay for premiums at a regular competitive rate; the state would then pay the excess premium. State funding for this program comes from tobacco tax funds. Limited funding limits the number of people who can participate. There is usually a waiting list. To find out more about MR-MIP, write or call MR-MIP, 818 K Street, Suite 200, Sacramento, CA 95814; (916) 324-4695. 6. Can I appeal if a health benefit plan rejects my request for assistive technology? Almost all health benefit plans provide for an internal appeal. If you are persistent, you can get a decision reversed-especially if you can provide more documentation of medical necessity or information that the health benefit plan has purchased similar devices in the past. The appeal is often informal. It consists of explaining the need and justification for the device in writing, with copies of supportive documents. Since the plan sets health benefit policies, and does not negotiate them with the beneficiary, a court will usually resolve ambiguities in favor of the beneficiary. Pointing out parts of the policy or summary plan description that could be interpreted to cover assistive technology may help you convincing a plan to provide assistive technology, even if the policy does not specifically mention the device or equipment. If the policy has a provision for arbitration, you must follow it. In arbitration, you and the plan present your arguments to a third party who will decide which of you is correct. The California Department of Insurance has a toll-free consumer information and complaint line: (800) 927-4357. The Department of Insurance will investigate complaints against insurance companies-such as failure to provide plan benefits or refusal to insure because of a pre-existing condition where there is not a sound basis for denial. If the Department of Insurance finds in your favor, it will order the insurance company to provide benefits or insurance. The Department of Corporations governs Health Maintenance Organizations (HMOs). If an HMO provides your plan, you complain to the Department of Corporations at (916) 445-7205 or (800) 400-0815. The Department of Corporations does not have a well-defined complaint process, but it will investigate claims that an HMO is not providing agreed-upon benefits. It will order the HMO to take corrective action if it finds that the claims are justified. The Equal Employment Opportunity Commission (EEOC) will look into complaints against an employer-provided health plan alleging discrimination in violation of the ADA. Your complaint would be against your employer, not the health benefit plan provider. See Chapter 6, Reasonable Accommodation in Employment, for instructions in filing an EEOC complaint. Finally, ERISA says that you can bring claims against an employer-provided health plan in federal court. You may claim that the health benefit plan is not providing services as required under the policy, or that the plan or the employer did not follow required procedures. For example, you could bring an action for failure to provide a clear summary plan description or a clear and complete description of why a requested benefit was denied.[Note 7] A court can order provision of the requested device if it finds that it is a plan benefit. Some courts have ordered provision of benefits for failure to provide a clear summary plan description under the theory that ambiguities are resolved against the benefit plan provider. 7. Do I have a right to continue my health benefit plan after I leave my job? Under COBRA (the federal Consolidated Omnibus Budget Reconciliation Act), you have the right to continue your health benefit plan for 29 months if you have a Social-Security-eligible disability. Coverage must continue for 18 months for people who do not have a disability. You must pay the benefit premiums at the group rate paid by your employer. Endnotes Note 1 - The term "health benefit plan" refers both to traditional health insurance and to benefits offered through health maintenance organizations (HMOs). Note 2 - Many large employers are self-insured. They hire an insurance company or HMO to administer the plan. The terms of the plan still control your right to benefits; you can enforce those terms against your employer. Note 3 - 29 U.S.C. §§ 1001, 1021, 1024. Note 4 - 29 U.S.C. § 1132(c). Note 5 - 42 U.S.C. § 12201 et seq. Note 6. - Insurance Code § 10144. Note 7 - 29 U.S.C. §§ 1001, 1021, 1024. ---------- Chapter 4 REGIONAL CENTERS Table of Contents Question 1. What are regional centers? 4-1 2. What is a developmental disability? 4-1 3. Who is eligible for regional center services? 4-1 4. What is assistive technology under the Lanterman Act? 4-2 5. As a person with a developmental disability, do I have a right to receive needed assistive technology? 4-2 6. What kinds of services and supports can I get? 4-3 7. How can I get assistive technology through the regional center? 4-3 8. How do I apply for regional center services? 4-4 9. What are the procedures for assessment? 4-4 10. What happens after the regional center finds me eligible for regional center services? 4-5 11. What is an Individual Program Plan (IPP)? 4-5 12. Why is the IPP so important? 4-5 13. What is the IPP assessment process? 4-5 14. Who is responsible for creating the IPP? 4-6 15. How do regional centers secure the services and supports I need? 4-7 16. Where must the regional center provide assistive technology for its consumers? 4-7 17. What types of assistive technology can the regional center provide in order to help children with developmental disabilities live at home? 4-7 18. What types of assistive technology are available through the regional center as family supports for adults with developmental disabilities? 4-8 19. Can the regional center provide assistive technology to help me live in my own home? 4-8 20. Who has the responsibility for providing and maintaining assistive technology? 4-8 21. Who pays for the services and supports listed in my IPP? 4-9 22. Can a regional center refuse to provide equipment because it does not have enough money? 4-9 23. Who owns the adaptive equipment the regional center buys? 4-10 24. What can I do if I disagree with a regional center decision? 4-10 25. When must I receive written notice? 4-10 26. What must the regional center include in its written notice? 4-11 27. I do not understand English. How will I understand what the regional center is telling me when it sends me a letter? 4-12 28. What if the regional center makes a change in my services or supports in order to protect my health or safety? When does it have to give me notice? 4-12 29. Can I keep my current services while I appeal a regional center decision? 4-13 30. What do I do if the regional center doesn't send me a notice according to the timelines, or sends a notice but without the required information? 4-13 31. Who can appeal the regional center's decision? 4-14 32. How do I file an appeal? 4-14 33. What if my disagreement is with a developmental center? 4-14 34. What are my rights in the fair hearing process? 4-14 35. Can someone be appointed to help me in my appeal? 4-15 36. What are area boards? 4-15 37. Do I have the right to look at my regional center records? 4-16 38. What is the first step in the hearing process? 4-16 39. What happens at an informal meeting if I decide to have one? 4-16 40. What if I don't speak English? 4-17 41. What is mediation? 4-17 42. What are the pros and cons of going through mediation? 4-18 43. What is the next step if mediation fails or we don't mediate? 44. Do I have to tell the regional center what documents and witnesses I will use at the hearing? 4-19 45. What happens at the fair hearing? 4-19 46. When will I get a decision by the hearing officer? 4-20 47. Is this decision final? 4-21 48. Can I appeal a final administrative decision I don't like? 4-21 49. How do I make a complaint that my rights have been violated? 4-21 50. How do I know which complaint process to use? 4-22 Attachments 4-24 * Regional Centers * Area Boards * Fair Hearing Flow Chart Chapter 4 REGIONAL CENTERS 1. What are regional centers? Regional centers are nonprofit corporations that contract with the Department of Developmental Services (DDS). They provide assessment and case management for people with developmental disabilities. They also buy necessary services and equipment based upon individual needs. There are 21 regional centers throughout California. Each serves a specified geographical area. The law that established regional centers and authorizes services for people with developmental disabilities is called the Lanterman Act. You will find the law in the California Welfare and Institutions Code beginning with Section 4500. There is a list of all 21 regional centers in the attachments to this chapter. 2. What is a developmental disability? Developmental disabilities, for purposes of regional center eligibility, include: mental retardation; cerebral palsy; epilepsy; autism; and "other disabling conditions". "Other disabling conditions" are related to mental retardation or require treatment similar to treatment required for people with mental retardation. The condition must begin before the person is 18 years old, be likely to continue indefinitely, and constitute a substantial disability. Developmental disabilities do not include handicapping conditions that are "solely physical in nature." Welf. & Inst. § 4512(a). Infants who have a high risk of developing a developmental disability are also eligible for regional center services. The Lanterman Act defines "high risk infant" as a child less than 36 months of age whose genetic, medical or environmental history predicts a much greater risk for developmental disability than the risk of the general population. Women who are at high risk of giving birth to a child with a developmental disability are also entitled to services through the regional center system. Welf. & Inst. § 4642. 3. Who is eligible for regional center services? Regional centers must serve people with developmental disabilities, women at high risk of giving birth to a child with a developmental disability, and infants at high risk of becoming developmentally disabled.[Note 1] Welf. & Inst. §§ 4512(a), 4642. You do not need to be a U.S. citizen to receive regional center services. You only need to live in California to qualify. 4. What is assistive technology under the Lanterman Act? The Lanterman Act calls assistive technology adaptive equipment and supplies, and transportation services. Assistive technology is part of the services and supports offered by regional centers that can help in social, personal, physical, or economic habilitation or rehabilitation. Welf. & Inst. § 4512. The Lanterman Act specifies "wheelchairs, hospital beds, communication devices, and other necessary appliances and supplies." But it does not give a complete list of assistive technology that you can ask your regional center to provide. Regional centers must make sure that you get the assistive technology that will help you meet the goals of the Lanterman Act and of your own individual program plans. 5. As a person with a developmental disability, do I have a right to receive needed assistive technology? Yes. As a regional center consumer, you have the right to receive needed services and supports, such as assistive technology, in the least restrictive environment. You must show that the assistive technology is necessary to foster your developmental potential. The AT must help you achieve the most independent, productive, and normal life possible. Welf. & Inst. § 4502. You should be prepared to show that your need for the assistive technology is related to your person's developmental disability. 6. What kinds of services and supports can I get? Under the Lanterman Act, the phrase "services and supports for persons with developmental disabilities" includes equipment, supplies, and transportation services to: (1) Alleviate developmental disabilities; (2) Habilitate or rehabilitate individuals; or (3) To help them achieve and maintain independent, productive, and normal lives. See, generally, Welf. & Inst. § 4512(b). The Individual Planning Process (IPP) determines which equipment you need. The IPP must reflect your needs and preferences or (when appropriate) those of your family. It must also be cost-effective.[Note 2] Welf. & Inst. § 4646. Any equipment should include training in using and caring for the device for you, your family, and your assistants. 7. How can I get assistive technology through the regional center? If you are not a regional center consumer, you must apply for eligibility to the regional center. The regional center does assessments to determine the nature of your disability. Once you become a regional center consumer, you, your representative and the regional center develop an Individual Program Plan (IPP). The IPP describes your goals and objectives, and the services and supports you need necessary to achieve them. The IPP should list any assistive technology you need. 8. How do I apply for regional center services? To start the process you, the individual with a disability (or an advocate or parent) may write to the regional center, telephone, or visit the center. Within 15 working days after you request services, the regional center must complete an initial intake. During initial intake, the regional center will give you information and advice on its services and the services of other agencies. 9. What are the procedures for assessment? A regional center staff person asks questions at the initial intake to determine the nature of your disability. Welf. & Inst. § 4643. The regional center will also conduct an assessment. In the assessment, qualified professionals collect information and evaluate you to find out about your disability. The staff person also decides whether or not assessments are necessary to determine the nature of the disability. A decision on whether or not assessments will be authorized is also made during initial intake. Welf. & Inst. § 4642. Ordinarily, assessments must take place within 120 days after the initial intake. However, they must take place within 60 days if any delay would: (1) Expose you to unnecessary risk of harm to your health and safety; (2) Result in serious delay in your mental or physical development; or (3) Put you at risk for placement in a more restrictive environment. As of July 1, 2000, the 120 days allowed for assessment will change to 60 days. If unusual circumstances prevent completion of the assessment within 60 days, the regional center can extend the assessment time by one 30-day period. However, it must get advance written approval from DDS to extend the time. Welf. & Inst. § 4642. After the assessment is finished, the regional center decides whether you are eligible for services. If the regional center finds that you are not eligible, you may request a fair hearing to challenge the decision. (See questions on hearing procedures starting at question 24.) 10. What happens after the regional center finds me eligible for regional center services? If you are eligible for services, the regional center is responsible for developing an Individual Program Plan (IPP) within 60 days after completing the assessment. Welf. & Inst. § 4646(c). The regional center must then make sure you get the services and supports listed in the IPP. 11. What is an Individual Program Plan (IPP)? An IPP is a written document. It describes your goals and objectives, and the services and supports you need to meet them. For every eligible person, the regional center must develop an IPP based on individual goals and objectives. Welf. & Inst. §§ 4646-4646.5. 12. Why is the IPP so important? The IPP is like an agreement between you and the regional center. It is an agreement to provide services and supports. If there is a service you need, you must make sure it gets written in your IPP. Every service or support should be listed, including any you will get from a "generic agency."[Note 3] If a service is in your IPP, the regional center must either provide it or help you get it from another agency. If a service is not written in your IPP, you cannot count on getting it from the regional center. Welf. & Inst. § 4646.5(a)(4). If the regional center includes a service or support in your IPP but does not provide it, or tries to end it or change it without your agreement, you can file a complaint or an appeal. See Questions 24 - 32 and 48. 13. What is the IPP assessment process? The IPP process starts with gathering information and doing an assessment. Welf. & Inst. § 4646.5(a)(1). The assessment determines your life goals, capabilities, strengths, preferences, barriers, and any concerns or problems. It should consider any assistive technology needs you may have. The assessment process must reflect awareness of, and sensitivity to, your lifestyle and cultural background and when appropriate, it must include that of your family. For a child, the process should include a review of the child's strengths, preferences and needs, and those of the family as a whole. 14. Who is responsible for creating the IPP? A team develops your IPP. The IPP Team may include your service coordinator,[Note4] you and, where appropriate, your parents, legal guardian or conservator. Others may participate in developing the IPP if you or (when appropriate) your parent, legal guardian, or conservator invite them to do so. The IPP team must review your IPP as often as necessary, based on your progress or changing needs, but no less than once every three years. If you or your parent, legal guardian, or conservator ask for an IPP review, a review meeting must take place within 30 days. Welf. & Inst. § 4646.5(b). Your IPP is developed by your planning team. Your planning team is made up of at least you, your authorized representative (if you have one); your parents, your conservator or guardian, if appropriate; anyone else you want to have at the meeting; and one or more representatives of the regional center, including your service coordinator or social worker. Welf. & Inst. § 4512(j). If you live in a developmental center, the developmental center staff will attend. Decisions on services and supports and where you will get them must be made by an agreement between you, your authorized representative, your family (if appropriate), and the regional center. The planning team must make these decisions at the meeting. Welf. & Inst. § 4646(d). 15. How do regional centers secure the services and supports I need? The regional center must get the services necessary to carry out the objectives stated in your IPP. It must give highest preference to services and supports that: * Allow children to live with their families; * Allow adults to live as independently as possible in the community; and * Allow all people with developmental disabilities to positively and meaningfully interact with people who do not have disabilities. The regional center may secure the services you need either by helping you get the services from another agency (such as a public school, California Children's Services, Medi-Cal, etc.) or by purchasing the services from providers. A provider cannot continue to furnish services unless you (or your parent, guardian, or conservator) agree that the provider is giving you the planned services and supports, and that you are making reasonable progress toward your stated objectives. 16. Where must the regional center provide assistive technology for its consumers? A regional center may not deny you services or equipment based on where you live. For instance, a child who lives in a board and care facility is entitled to the same services as a child who lives with her family. The regional center must provide assistive technology as a service or support whether you live in the community in your own home, in a foster care home, in a health care facility, licensed community care facility, or in a residential facility. Welf. & Inst. § 4648(a)(9). 17. What types of assistive technology can the regional center provide to help children with developmental disabilities live at home? The Lanterman Act gives priority to the services and supports needed to help a child with a developmental disability live at home when that is what the family prefers. Regional centers may provide wheelchairs, hospital beds, communication devices, and other necessary appliances and supplies that enable the child to live at home. Welf. & Inst. § 4685(c)(1). The child's IPP should include all necessary assistive technology. If the family is considering out-of-home placement, the regional center must meet with the family to find out what supports would allow the child to stay at home. 18. What types of assistive technology are available through the regional center as family supports for adults with developmental disabilities? People with developmental disabilities have the right to have relationships, to marry, to be a part of a family, and to parent. If you are a parent with a developmental disability, the regional center can provide assistive technology to support your family. That could include adaptive equipment such as wheelchairs, hospital beds, communication devices, and other appliances and supplies that your family needs. Welf. & Inst. § 4687(f). 19. Can the regional center provide assistive technology to help me live in my own home? Yes. If you prefer to live in a home that you own or lease, the Lanterman Act specifically requires that the regional center provide the services or supports that enable you to do so. Welf. & Inst. § 4648(a)(1). This includes the responsibility for securing and maintaining adaptive equipment and supplies necessary for independent living. You should include your preference to live in your own home and any assistive technology you need to do so in your IPP. 20. Who has the responsibility for providing and maintaining assistive technology? The regional center has the primary responsibility to make sure that you get needed supports and services, including assistive technology. Welf. & Inst. § 4648(a). When possible, it can help you get the technology through other agencies, such as school districts and Medi-Cal. It can also contract with private agencies, organizations, or businesses for the appropriate services and supports. Welf. & Inst. § 4648(f). The regional center has the responsibility of monitoring the supports provided to make sure that they meet your needs and that they are satisfactory. Welf. & Inst. § 4689(e). Regional Center staff may help in upgrading equipment when necessary. Welf. & Inst. § 4648(d)(1). 21. Who pays for the services and supports listed in my IPP? The regional center is responsible for making sure that you get assistive technology listed in your IPP. It may pay for the service or support, or help you get all necessary services from other sources. It is important that you get all necessary services and supports, including those that may be the responsibility of another agency. If another public agency is legally responsible for providing a service or support (for example, a school district, California Children's Services, Medi-Cal, SSI), the regional center must help the consumer and family make sure the agency meets its responsibility. The regional center should also find out if a private entity (such as an insurance company) is responsible for any of the costs and help you and your family get that funding. The regional center should make sure that there are no gaps in needed services. If a public agency or private entity refuses to pay promptly for a service or support that you need (and it would otherwise be a regional center responsibility), the regional center should pay for the service until the responsible party agrees to pay. 22. Can a regional center refuse to provide equipment because it does not have enough money? Funds are always limited, but a regional center must base its decisions about which services and supports to provide on your individual needs. The California Supreme Court has said that the Lanterman Act entitles all persons with developmental disabilities to the services and supports they need to lead more independent and productive lives. So long as it has any funds to buy services, the regional center must provide services and supports based on your individual needs and preferences, as determined through your IPP process.[Note 5] You can and should ask for a fair hearing if the regional center says it is denying or reducing services or supports because it does not have enough money. 23. Who owns the adaptive equipment the regional center buys? If the regional center buys equipment for you, the regional center owns the equipment. You have exclusive use of the equipment until you move from the area, outgrow the equipment, or no longer need it. At that time you must return it to the regional center. If you are moving to an area covered by a different regional center, you should ask both the regional centers to work out an arrangement so you can take the equipment with you. 24. What can I do if I disagree with a regional center decision? If you disagree with any regional center or developmental center decision to deny technology (or any other service) that you believe you need, you can appeal. Welf. and Inst. § 4710.5(a). Because there are time limits for giving you notice, starting the appeal, and taking every step of the appeal process, we have included a "Time Line" chart in the attachments to this chapter. The process begins with you telling the regional center you disagree with a decision it made. At that point it must send you written notice within five working days. You must appeal a decision to stop, change or cut back a service or support within 10 days of being notified if you want that service or support to continue until the appeal process is over. Otherwise you have 30 days to file an appeal for a fair hearing. If you wait that long, however, the regional center can stop, cut back or change the services or supports during the appeal process. This is true even if you win your right to those services or supports at the hearing. 25. When must I receive written notice? You must receive written notice when: * You apply for regional center services and the regional center says you not eligible. Welf. & Inst. § 4710(e). * The regional center says that you are no longer eligible. Welf. & Inst. § 4710(a)(2). * The regional center says it will not provide a service that you request. Welf. & Inst. § 4710(b)(2). * The regional center wants to cut back, change or stop a service that is in your IPP, without your agreement. Welf. & Inst. § 4710(a)(1). * The regional center says it does not have the money to provide services for you. Welf. & Inst. § 4710(c). If the regional center decides that it will not provide a service or support you ask for, it must give you written notice by certified mail within 5 working days (weekends and holidays not included). Welf. & Inst. § 4710(b). If you are already receiving the service and the regional center stops, reduces or changes it, you must receive notice at least 30 days before the regional center changes anything. Welf. & Inst. § 4710(a)(1). Sometimes regional centers do not send written notice when they decide to deny or change a service you want or need. That is illegal. You should ask for written notice when you do not agree with a regional center decision. Then you can decide whether or not you want to appeal. 26. What must the regional center include in its written notice? The notice must be clear and in a language you understand. It must include: * Exactly what the regional center intends to do; * The reasons for its action and the date of the action; * The specific law, regulation or policy that the regional center believes allows it to take the action; * Where and how to file an appeal, including telling you about any deadlines; * A description of the appeal process and how you can review your regional center records to help prepare your case; * Where you can get advocacy help; and * Notice that your current services will continue if your request for a fair hearing is postmarked within 10 days of the date you receive the notice. Welf. & Inst. § 4701. Adequate notice is important so that: (1) You will know what the regional center plans to do; (2) You know the specific facts, laws, and policies on which the regional center bases its decision; (3) You can make an informed decision about whether to appeal; and (4) You can prepare adequately for an appeal. 27. I do not understand English. How will I understand what the regional center is telling me when it sends me a letter? All notices that a regional center sends you must be in the language that you or your authorized representative understands. Welf. & Inst. § 4701(h). If you do not understand English, or if you do not understand English well, you must make sure to tell your service coordinator. You should mail your service coordinator a letter, in your own language. Tell him that you need notices in your language. Have him put your letter into your regional center file. If you ever receive a notice that is in a language that you do not understand, call your service coordinator immediately. Ask for a notice in your own language. Timelines will not begin running until you receive a notice that you understand. 28. What if the regional center makes a change in my services or supports in order to protect my health or safety? When does it have to give me notice? If the regional center reduces, changes or stops a service for your health or safety, you do not have to get advance notice. You must get notice no more than 10 days after the regional center takes action. Welf. & Inst. § 4710(f). Time for appealing the action begins running when you receive the notice, not when the action took place. 29. Can I keep my current services while I appeal a regional center decision? The law says that you have a right to continue services that the regional center wants to change or stop if your request for a hearing is postmarked or received by the regional center within 10 days of receiving the written notice. Welf. & Inst. § 4715. This very important right is often called "aid paid pending." 30. What do I do if the regional center doesn't send me a notice according to the timelines, or sends a notice but without the required information? The regional center is supposed to follow the law and provide you with adequate notice. However, it is best not to depend on the regional center for timing your appeal. If you use the timelines in the chart at the end of this chapter, you will be sure not to miss a deadline. If you do not get adequate notice, you should immediately contact the clients' rights advocate (CRA) at the regional center. You should call and write. You should also contact the person who signed the notice (if it arrived later than the timelines indicate). Ask the regional center to cancel the decision and send you a new, proper notice that meets the requirements of the Lanterman Act. If the regional center agrees to cancel the decision and send you a new notice, be sure to follow the timelines for appealing the decision. If the regional center refuses to send a new notice, you can file a complaint. Notify your CRA that the regional center has violated your right to adequate notice. See question 49. You should also file a request for a fair hearing about the issue that you disagree with, even if the regional center does not agree to send a new notice. It is important to protect your appeal right (and your right to continue receiving services during the appeal process) by filing a request for a fair hearing as soon as you can. You should do this even if you believe the notice is inadequate. You can note in your appeal request that you are also submitting a complaint about inadequate notice. 31. Who can appeal the regional center's decision? The following people can request a hearing: The person applying for or receiving services and supports; that person's legal guardian, conservator or authorized representative (someone acting on his behalf); a minor's parent or other person with legal custody. Welf. & Inst. § 4703. 32. How do I file an appeal? When the regional center gives you notice of its action or proposed action, it must also give you the correct forms to fill out to ask for a fair hearing. Welf. & Inst. § 4710.5(a). If you make the request to appeal verbally, the regional center worker must give you the form to make a fair hearing request. That person must ask you if you want help filling out the form and help you if you do. Welf. & Inst. § 4710.5(c). The duty of the regional center to help you fill out the form to request a fair hearing is so important that any employee of the regional center who willfully fails to give you the form and help you fill it out would be guilty of a misdemeanor. Welf. & Inst. § 4710(c). If no one gives you the form, send a letter to the regional center asking for a hearing anyway. 33. What if my disagreement is with a developmental center? The same process and time limits apply for the developmental center to give you notice of a proposed action and for you to appeal the developmental center's action. All of the rules for an appeal to a developmental center and a regional center are the same. We will refer only to regional centers to keep it simpler. 34. What are my rights in the fair hearing process? The regional center must also inform you of your rights in writing. Those rights include: * The right to be present at all proceedings and to give evidence in writing or by speaking; * The right to have your own witnesses and to cross-examine the regional center's witnesses; * The right to appear in person and the right to have a lawyer, advocate or someone else represent you; * The right to have access to regional center records that relate to you and the issues in dispute; * The right to an interpreter who is acceptable to both you and the regional center. Welf. & Inst. § 4710.6(a)(1)-(5); and * The right to receive information on advocacy help, including information on your area board and PAI. Welf. & Inst. § 4710.6(b)(1). 35. Can someone be appointed to help me in my appeal? The area board may appoint a person or agency to help you in the appeals procedure if anyone believes that, without a representative, your rights or interests will not be protected. The appeal must be in writing. Both the area board and your CRA must be notified of this concern. A copy of the appointment must be given to your authorized representative and the regional center. Welf. & Inst. § 4705(e). 36. What are area boards? Area boards oversee the services provided to consumers. There are 13 area boards in California. A list of the area boards, with their addresses, telephone numbers, and the counties they serve are in the attachments to this chapter. The area boards encourage and help in setting up citizen advocacy organizations. Those advocacy organizations provide practical services to people with developmental disabilities and oversee the services other agencies provide. Welf. & Inst. §§ 4590, 4592. The area boards also do public education and outreach. They seek advice from professionals in the field of developmental disabilities, from consumers and their families, and from representatives about services in the area. They help the State Council prepare the state plan and may prepare an area-wide plan. All 13 area boards belong to the Organization of Area Boards (OAB). The OAB, provides advice to state agencies, the State Council, and the Legislature. Welf. & Inst. §§ 4591, 4594, 4597, and 4598. 37. Do I have the right to look at my regional center records? Yes. The regional center (or developmental center) must give you or your authorized representative access to your records within 3 three working days after a written or oral request to see them. Welf. & Inst. §§ 4726 and 4728. You have a right to see any records in your regional center file, including records the regional center got from others. The regional center must also help you understand the records at your request. Welf. & Inst. § 4728. You will want to review your file and get copies of relevant records before the hearing. 38. What is the first step in the hearing process? Within 10 days of receiving your request for a fair hearing, the regional center must offer to meet informally with you (and your representative, if you have one) to try to resolve the dispute. Welf. & Inst. § 4710.7. Because of a recent change in the law, you can now decide to not have an informal meeting. Starting July 1, 1999, the next step in the appeal process is mediation. We think mediation is more likely to result in a fair agreement. However, either you or the regional center can "waive" mediation (decide not to mediate). If that happens, you still have a right to a fair hearing, the last step in the process, without meeting with the regional center informally. It is your choice. 39. What happens at an informal meeting if I decide to have one? An informal meeting is a meeting between you, your representative (if you have one), and the regional center's director or someone acting for the director. Welf. & Inst. § 4710.7. The purpose of the meeting is to see if you can resolve the dispute or, if that is not possible, to see if you can clarify or reduce the areas where you and the regional center disagree. Within 5 days after an informal meeting, the regional center director or the person acting for the director must send you a written decision. Welf. & Inst. § 4710.7(a). The written decision must: (1) identify each issue in the appeal; (2) decide on each issue identified; (3) state the facts supporting each decision; (4) set out the laws, regulations and policies upon which each ruling is based; and (5) explain how to appeal the decision. Welf. & Inst. § 4710.7(c). The decision will go into effect 10 days after you receive it. Welf. & Inst. § 4710.8(d). If you disagree with the informal decision, you must ask for a mediation or a state-level hearing within 10 days of the date you receive it. Welf. & Inst. § 4710.8(d). If you agree with the informal decision, you can withdraw your request for a hearing. 40. What if I don't speak English? The informal meeting is conducted in English. However, if you (or your parent, guardian or conservator who attends the meeting) do not understand English, the regional center must provide an interpreter. The interpreter must be competent and acceptable to the person who needs the interpreter and to the regional center director (or the person acting for the director). The regional center must pay any cost of an interpreter. Welf. & Inst. § 4710.8(c). 41. What is mediation? Starting July 1, 1999, "mediation" will become part of the regional center appeal process. Welf. & Inst. § 4707. DDS will contract for independent, trained mediators to conduct mediations. Either you or the regional center can say you do not want to mediate. In that case, you will go directly to a state-level hearing. Welf. & Inst. § 4711.5. If you both agree to mediation, it must be scheduled within 20 days of the request for an appeal. Welf. & Inst. § 4707. A mediator will sit down informally with you and the regional center and try to resolve the disagreement you have. The mediator will meet with you and the regional center to try to find common ground and issues on which you can agree. Mediators are trained to help people look at new or different solutions. The mediator has no power to force you to agree anything, but tries to help you reach an agreement. Many disputes are settled in mediation. It is in your best interest to be as prepared as possible for a mediation. You should know what all of the documents that relate to your case say. You should have spoken to potential witnesses and know what they are likely to say at a hearing. This will increase your ability to decide what you can or should agree to during mediation. Even if you don't settle in mediation, you will have done some of the preparation for a hearing. 42. What are the pros and cons of going through mediation? We think that mediation is generally a good idea. You should seriously consider mediation. It does take some time, but, other than that, you have nothing to lose. Mediation gives both sides another chance to reach an agreement. The help of an independent mediator increases the possibility you will reach an agreement or resolution. Even if mediation is not successful, it will often give you more information about the regional center's point of view. Such information may be helpful if there is a fair hearing. On the negative side, mediation takes time and energy. If it seems that there is absolutely no hope for agreement, you can decide to waive mediation. We know of many instances, however, where the parties did settle in mediation even though they saw that there was no real hope for agreement before. If you or the regional center do waive mediation, make sure that you are prepared to proceed to the fair hearing. Waiving mediation may result in the hearing being scheduled sooner than if you go to mediation. 43. What is the next step if mediation fails or we don't mediate? If you disagree with the decision from the informal meeting, do not go to mediation, or do not reach agreement through mediation, the next step is a hearing. That hearing will be in front of an administrative law judge (also called a hearing officer). Welf. & Inst. §§ 4710.9(a), 4712. The hearing must be held within 50 days of filing the appeal. A delay can be given by the administrative law judge if either you or the regional center ask, and if there is a good reason -- such as a witness is not available. Welf. & Inst. § 4712(a). A further continuance (delay) is available for: * The death of a spouse, parent, child, brother, sister or grandparent, or the death of your authorized representative, legal guardian or conservator. Welf. & Inst. § 4712(a)(1); * You or your authorized representative are ill. Welf. & Inst. § 4712(a)(2); * Sudden and unexpected emergencies, such as court appearances or scheduling conflicts beyond the control of your authorized representative. Welf. & Inst. § 4712(a)(3); or * Unavailability of a witness or evidence if the absence would result in serious prejudice to your case. Welf. & Inst. § 4712(a)(4). 44. Do I have to tell the regional center what documents and witnesses I will use at the hearing? Yes. At least 5 days before the hearing, you and the regional center must trade lists of possible witnesses and copies of the documents you may use at the hearing. Welf. & Inst. § 4712(d). The list of witnesses must include a short statement telling what each witness will testify about. The judge can keep you from using any documents or testimony that you do not disclose. The same goes for the regional center. 45. What happens at the fair hearing? The fair hearing is a formal proceeding. It is recorded (on tape) so the record is clear about what everyone says at the hearing. Welf. & Inst. § 4712(k). DDS contracts with a separate agency to provide the judges. The judge takes testimony under oath. Administrative hearings are not as formal as a hearing in a court of law. The rules of evidence are relaxed, but it is much more formal than an informal hearing or mediation. At a fair hearing you have the right to: * Present evidence both in writing and orally; * Call witnesses to present your side of the case. You can call "lay witnesses" (people who have knowledge of the facts) and "expert witnesses" (such as doctors, psychologists, behavior specialists, vocational therapists, etc.) who have special training and experience; * Have a representative, attorney or advocate in the hearing with you, either to present your case or to help you present your case; and * Have an interpreter if you or your witnesses do not speak English. Welf. & Inst. § 4710.6(a). At the beginning of the hearing, both you and the regional center will have a chance to present the documents you want to use as evidence. Welf. & Inst. § 4712(i). You should bring four sets of your documents - one set for the judge as exhibits, one for the regional center, one to show to witnesses when necessary, and one to use yourself. The regional center is now expected to put on its witnesses first. Welf. & Inst. § 4712(j). You can ask to put on one of your witnesses earlier. However, since the regional center knows why it wants to deny or reduce a service, it is only fair that it present its reasons first. That way, you will be better able to put on evidence that supports your case. You will have a chance to ask questions of the regional center's witnesses. Then you will be able to put on your case by asking your own witness questions. The regional center also gets to ask your witnesses questions. If you want to have someone appear as a witness, but do not believe the person will do so voluntarily, you can call the Office of Administrative Hearings (OAH) and ask for a subpoena. The OAH is the agency that conducts the hearings. If you want the person to bring certain documents to the hearing, you can get a subpoena duces tecum from OAH. On the back of the subpoena you will find instructions for serving it on the person who will testify or bring documents. 46. When will I get a decision by the hearing officer? The judge should issue a written decision within 10 days of the hearing, but no later than 80 days from the date your initial appeal is postmarked (or received by the regional center if you hand delivered it). Welf. & Inst. § 4712.5(a). The judge's decision should: * Give a summary of the facts; * Provide a statement of the evidence on which the judge relied; * Decide each issue or question presented; * Set out the laws, regulations and policies supporting the decision; and * Be in ordinary and concise language. Welf. & Inst. § 4712.5(b). 47. Is this decision final? The judge's decision is sometimes the final administrative decision. Sometimes it is not. If the service at issue in the hearing is not a service paid for by the Medi-Cal Home and Community-Based Waiver, the hearing officer's decision is the final administrative decision. Welf. & Inst. § 4712.5(a). If the service at issue is a service paid for by the Medi-Cal Home and Community-Based Waiver, and the initial notice must say if it is, the judge's decision is only a proposed decision. Welf. & Inst. § 4712.5(c). The director of the Department of Health Services can then review the decision and may change it. In that event, the director writes a new decision. Sometimes the director will not review the decision. In any event, the director must issue a decision within 90 days of the day you requested your appeal, or the judge's decision becomes the final administrative decision. 48. Can I appeal a final administrative decision I don't like? Yes. You can appeal a final administrative decision to court. You must do this within 90 days of receiving the decision. You will probably need a lawyer to do this for you. If you or the regional center do not want the decision to go into effect, the court can be asked to issue a "stay." The regional center can implement a final administrative decision within 10 days. If you don't want a gap in services while you appeal to court, you need to ask the court for a stay within 10 days. The regional center can also appeal a hearing decision. 49. How do I make a complaint that my rights have been violated? You (or your representative acting on your behalf) have a right to make a complaint if you believe that any right to which you are entitled has been abused or kept from you, or has been improperly or unreasonably denied. You can complain against the regional center, developmental center, or a service provider. A service provider might be a community care facility, a day program or transportation providers vendored by the regional center. Welf. & Inst. § 4731. You should complain to your CRA. You can complain on behalf of one person or more. Welf. & Inst. § 4731(a). You can make the complaint in writing, or by speaking with your CRA, or by asking your representative to speak to the CRA. If you want a representative to speak for you, the CRA will check to make sure you actually want that person to make the complaint for you. The CRA then has 10 working days to investigate the complaint and send you a written proposal for resolving the complaint. The CRA will send the proposal to the regional center, developmental center, or service provider. Welf. & Inst. § 4731(b). If you are not satisfied with the CRA's proposal, the CRA must refer the complaint within 5 working days to the director of the regional center or developmental center. Welf. & Inst. § 4731. If the director does not resolve the complaint to your satisfaction within 10 working days, tell him that you are not satisfied. He must then refer your complaint to the director of DDS. Welf. & Inst. § 4731(d). You can add more information to the complaint that goes to DDS if you want. The director of DDS has 45 days to issue a written decision and send it to you. Welf. & Inst. § 4731(d). 50. How do I know which complaint process to use? You should not use the above complaint process in question 49 if there is a dispute about the nature, scope or amount of services and supports that should be in your IPP. Welf. & Inst. § 4731(f). You would use the fair hearing procedure for that kind of dispute. Sometimes it is hard to tell which process to use. For example, what if the regional center is denying a service to you based on a policy that contains a limit on services? The policy says the regional center will not buy computers for consumers under any circumstances. The service is one you want in your IPP, but the regional center will not even consider whether you need it because of its own policy limits. We think you can both file a complaint and request a fair hearing in that case. The two processes do different things. The fair hearing will resolve a disagreement over whether you need a certain service. If you are getting the service, you get to keep the service while the hearing process continues if you file for a hearing within 10 days of getting the notice. A successful complaint will help you (and other people in the future) by stopping the regional center from using a practice or policy that is illegal. However, you would not necessarily get to keep your services during the process. Every year DDS collects all of the complaints filed for each regional center and developmental center. The subject of each complaint and the decision will be published. DDS must make this information available to the public upon request. Welf. & Inst. § 4731(e). Staff must give you or your parent, guardian, conservator or representative a written copy of the complaint procedure, in the language you understand, when you first apply for regional center services or enter a developmental center. You must also get a copy of the complaint procedure at every regularly scheduled planning meeting. Welf. & Inst. § 4731(g). ATTACHMENTS TO CHAPTER 4 REGIONAL CENTER LIST There are 21 Regional Centers located throughout California. They may provide assessment, diagnosis, and counseling to people with developmental disabilities. For more information please call the regional centers that serve your area) Alta California Regional Center 2031 Howe Avenue, Suite 100 Sacramento, CA 95825-0196 Tel: (916) 924-0500 TTY: (916) 924-0645 Fax: (916) 929-1036 Areas served: Colusa, Placer, El Dorado, Alpine, Sierra Nevada, Sacramento, Yuba, Yolo, and Sutter Counties Central Valley Regional Center 5168 N. Blythe Avenue Fresno, CA 93722 Tel: (209) 276-4300 Fax: (209) 276-4360 Areas served: Merced, Mariposa, Madera, Fresno, Kings, and Tulare Counties Eastern Los Angeles Regional Center 1000 S. Fremont Avenue P.O. Box 7916 Alhambra, CA 91802-7916 Tel: (818) 299-4700 Fax: (818) 281-1163 Areas served: East Los Angeles, Northeast Los Angeles, Whittier District, Alhambra District Far Northern Regional Center 1900 Churn Creek Road, #319 Redding, CA 96002 Tel: (530) 222-4791 Fax: (530) 222-6063 Areas served: Butte, Glenn, Shasta, Siskiyou, Tehama, Modoc, Plumas, Lassen, and Trinity Counties Golden Gate Regional Center 120 Howard Street, 3rd Floor San Francisco, CA 94105-1696 Tel: (415) 546-9222 TTY: (415) 546-9222 Fax: (415) 546-9203 Areas served: San Mateo, Marin, and San Francisco Counties Harbor Regional Center 21231 Hawthorne Boulevard Torrance, CA 90503-5591 Tel: (310) 540-1711 TTY: (310) 540-1711 Fax: (310) 540-9538 Areas served: Bellflower, Harbor, Long Beach, and Torrance Health Districts Inland Counties Regional Center, East 674 Brier Drive P.O. Box 6217 San Bernardino, CA 92412-6217 Tel: (909) 890-3000 Fax: (909) 890-3001 Areas served: Riverside and San Bernardino Counties Kern Regional Center 3200 N. Sillect Avenue Bakersfield, CA 93308 Tel: (805) 327-8531 TTY: (805) 327-1251 Fax: (805) 324-5060 Areas served: Kern, Inyo, and Mono Counties Lanterman Regional Center 3440 Wilshire Boulevard, Suite 400 Los Angeles, CA 90010-2197 Tel: (213) 383-1300 TTY: (213) 380-8625 Fax: (213) 383-6526 Areas served: Pasadena, Hollywood, Wilshire, Central Los Angeles, Glendale/Foothill North Bay Regional Center 10 Executive Court, Suite A P.O. Box 3360 Napa, CA 94558 Tel: (707) 256-1100 Fax: (707) 256-1112 Areas served: Napa, Sonoma, and Solano Counties North Los Angeles County Regional Center 15400 Sherman Way, Suite 300 Van Nuys, CA 91406 Tel: (818) 778-1900 Fax: (818) 756-6140 Areas served: San Fernando, Antelope, Santa Clarita, and Conejo Redwood Coast Regional Center 808 E Street Eureka, CA 95501 Tel: (707) 445-0893 Fax: (707) 444-3409 Areas served: Humboldt, Del Norte, Mendocino, and Lake Counties Regional Center of the East Bay 7677 Oakport Street, Suite 1200 Oakland, CA 94621 Tel: (510) 383-1200 Fax: (510) 633-5020 Areas served: Alameda and Contra Costa Counties Regional Center of Orange County 801 Civic Center Drive West P.O. Box 22010 Santa Ana, CA 92701-2010 Tel: (714) 796-5222 Fax: (714) 547-4365 Area served: Orange County San Andreas Regional Center 300 Orchard City Drive, Suite 170 Campbell, CA 95008 Tel: (408) 374-9960 Fax: (408) 376-0586 Areas served: San Benito, Monterey, Santa Clara, and Santa Cruz San Diego Regional Center 4355 Ruffin Road San Diego, CA 92123 Tel: (619) 576-2996 Fax: (619) 576-2873 Areas served: San Diego and Imperial Counties San Gabriel/Pomona Regional Center 761 Corporate Center Drive Pomona, CA 91768 Tel: (909) 620-7722 Fax: (909) 622-5123 Areas served: San Gabriel and Pomona Valley South Central Los Angeles Regional Center 2160 West Adams Boulevard Los Angeles, CA 90018 Tel: (213) 734-1884 Fax: (213) 730-2286 Areas served: Compton, San Antonio, South Los Angeles, Southeast Los Angeles, and Southwest Los Angeles Health Districts Tri-Counties Regional Center 520 East Montecito Street Santa Barbara, CA 93103 Tel: (805) 962-7881 Fax: (805) 966-5935 Areas served: Ventura, Santa Barbara, and San Luis Obispo Valley Mountain Regional Center 709 Danny Drive P.O. Box 692290 Stockton, CA 95269-2290 Tel: (209) 473-0951 Fax: (209) 473-0256 Areas served: Amador, Calaveras, San Joaquin, Stanislaus, and Tuolomne Westside Regional Center 5901 Green Valley Circle, 3rd Floor Culver City, CA 90230 Tel: (310) 337-1155 Fax: (310) 649-2033 Areas served: Inglewood and Santa Monica West Health Districts AREA BOARDS ON DEVELOPMENTAL DISABILITIES Area Board I P.O. Box 245 Ukiah, CA 95482 Tel: (707) 463-4700 Fax: (707) 462-4752 Area Board II 1367 E. Lassen Avenue, #B3 Chico, CA 95296 Tel: (530) 895-4027 Fax: (530) 899-1562 Area Board III 2025 Hurley Way, Suite 105 Sacramento, CA 95825 Tel: (916) 263-1150 Fax: (916) 263 1155 Area Board IV 236 Georgia Street, Suite 201 Vallejo, CA 94590 Tel: (707) 648-4073 Fax: (707) 648-4100 Area Board V 360 22nd Street, Suite 730 Oakland, CA 94612 Tel: (510) 286-0439 Fax: (510) 286-4397 Area Board VI 250 Cherry Lane, Suite 113 Manteca, CA 95336 Tel: (209) 239-6700 Fax: (209) 239-3081 Area Board VII 359 Northlake Drive San Jose, CA 95117-1261 Tel: (408) 246-4355 Fax: (408) 246-6658 Area Board VIII Tel: (209) 222-2496 Fax: (209) 248-2886 770 East Shaw Avenue, Suite 123 Fresno, CA 93710 Area Board IX 7127 Hollister Avenue, Suite 22 Goleta, CA 93117 Tel: (805) 685-8395 Fax: (805) 685-4896 Area Board X 411 North Central Ave., Suite 620 Glendale, CA 91203-2020 Tel: (818) 543-4631 Fax: (818) 543-4635 Area Board XI 250 S. El Camino Real, Suite 110 Tustin, CA 92680 Tel: (714) 731-4787 Fax: (714) 558-4298 Area Board XII 1960 Chicago Avenue, Suite E-8 Riverside, CA 92507 Tel: (909) 781-0722 Fax: (909) 781 0896 Area Board XIII 4711 Viewridge Avenue, Suite 160 San Diego, CA 92123 Tel: (619) 637-5563 Fax: (619) 637-5572 Organization of Area Boards 3000 S Street, Suite 210 Sacramento, CA 95816-7055 Tel: (916) 227-2148 Fax: (916) 227-2361 Insert - Fair Hearing Flow Chart Flow chart available only in hard copy; call 1-800-776-5746 Endnotes Note 1 - Regional centers provide early intervention services to infants and toddlers (from birth through age two) with disabilities: (1) under the Lanterman Act; (2) under Part C of the Federal Special Education Law; and (3) under the Individuals with Disabilities Education Act (IDEA). This chapter does not cover Part C services. For information on Part C services, see Chapter 9 on Assistive Technology Through Special Education and Chapter 12 of PAI's Special Education Rights and Responsibilities Manual. Note 2 - A regional center cannot use "cost effectiveness" to prevent you from receiving particular types of equipment based on your needs and preferences. "Cost effectiveness" only affects how the regional center provides services and supports. For example, if you need and choose a specific communication device, the regional center may not insist that you use another type just because it is cheaper. The regional center may choose a less expensive device if it meets your needs, is as effective as the device you chose, and will meet the goals and objectives of your IPP. Note 3 - Generic agencies are agencies that serve the general public, such as school districts, Medi-Cal and California Children's Services. Note 4 - A service coordinator (also called a program coordinator or case manager) is responsible for implementing, overseeing, and monitoring each IPP. The service coordinator is usually, but not always a regional center employee. The service coordinator can only continue to serve as long as you or your representative agrees to have that person as service coordinator. You, your family, advocate, legal guardian or conservator may perform some or all of the duties of service coordinator or as is appropriate, feasible, and if the regional center director agrees. Welf. & Inst. Code § 4747. Note 5 - The California Supreme Court has ruled that, while regional centers have wide discretion in determining how to implement an IPP, they have no discretion at all in determining whether to implement it -- they must do so. ---------- Chapter 5 CALIFORNIA CHILDREN'S SERVICES (CCS) Table of Contents Question 1. What physically handicapping conditions will result in CCS eligibility? 5-1 2. Does my child have to be a citizen or a resident? 5-3 3. How is CCS funded and operated? 5-3 4. If my child has a diagnosis of mental retardation, is she eligible for CCS services? 5-4 5. How do I get CCS services for my child? 5-4 6. Can my child also receive Medi-Cal? 5-4 7. How does CCS coordinate services with Medi-Cal? 5-5 8. Do we need to pay any charges for our child's CCS services? 5-6 9. How does our child get assistive technology through CCS? 5-7 10. How long does it take for CCS to provide assistive technology? 5-7 11. What medical supplies will CCS buy? 5-7 12. What medical appliances will CCS provide? 5-7 13. What standards does CCS apply in buying durable medical equipment? 5-7 14. What durable medical equipment will CCS buy when it is medically necessary? 5-10 15. What are the standards for CCS purchase of a wheelchair? 5-11 16. What are the standards for CCS purchase of an augmentative communication device? 5-11 17. Does CCS purchase newly introduced durable medical equipment? 5-12 18. Our child is also covered by our own private insurance. Will CCS pay for an assistive technology device that our insurance would not cover? 5-13 19. What can we do if we disagree with a CCS decision? 5-13 20. What are the elements of the CCS appeal process? 5-13 Attachments 5-18 Chapter 5 CALIFORNIA CHILDREN'S SERVICES California Children's Services (CCS) is a statewide program for children under the age of 21, who have physically handicapping conditions, and who meet specified financial guidelines. CCS provides medically necessary services and assistive technology related to a child's CCS eligible condition, including durable medical equipment, medical supplies, medical appliances (such as braces, artificial limbs, or crutches), electronic communication devices, and medications. CCS only provides equipment and services that are not the responsibility of a private health plan or Medi-Cal. Families with an adjusted gross income of less than $40,000 per year, as calculated for California State Income Tax purposes, are eligible for CCS medical treatment services. Some families must pay a part of the cost. However, the Director of the Department of Health Services may authorize treatment services and equipment for children in families with higher incomes if the cost of care in one year is expected to exceed 20% of the family's adjusted gross income. Cal. Health & Safety Code § 123870(a). 1. What physically handicapping conditions will result in CCS eligibility? CCS-eligible conditions are physical handicaps that are severe and serious. Eligible conditions listed in CCS regulations include: * Orthopedic conditions due to infection, injury or congenital malformation; * Conditions requiring plastic reconstruction, such as cleft lip, oro-facial anomalies and burns; * Conditions requiring orthodontic reconstruction, such as cleft palate, severe malocclusion, and oro-facial anomalies; * Eye conditions leading to a loss of vision (not ordinary refractive errors); * Ear conditions leading to a loss of hearing; * Rheumatic fever; * Nephritis, nephrosis, or the nephrotic syndrome; * Phenylketonuria; * Hemophilia; * Hyaline Membrane Disease; * Endocrine or metabolic disorders that pose medical management problems or diagnostic problems; * Convulsive disorders posing medical management problems or diagnostic problems; * Blood dyscrasias; * All neoplasms; * Severe skin disorders such as epidermolysis bullosa; * Chronic pulmonary conditions such as cystic fibrosis, bronchiectasis and lung abscess; * Congenital anomalies that cause disabling or disfiguring handicaps; * Conditions of the nervous system, such as inflammatory disease of the central nervous system, which produces motor disability like paralysis and ataxia, and neuromuscular disease such as cerebral palsy or muscular dystrophy; * Conditions resulting from accidents or poisoning that may cause handicaps, such as complicated fractures, brain and spinal cord injuries, stricture of the esophagus; * Other disabling or disfiguring conditions which are handicapping; 22 California Code of Regulations (C.C.R.) §§ 41800, 41811-41876; and * Severe adverse reaction to an immunization requiring extensive medical and related care. 22 C.C.R. § 42800. Local CCS agency application of CCS policies may result in determinations of ineligibility for children who actually meet the criteria in the regulations. If that happens, you may need to file a CCS appeal to make the local agency follow state regulations. See questions 19 and 20 below. 2. Does my child have to be a citizen or a resident? CCS does not require that your child be a citizen or a permanent legal resident in order to receive CCS services. Nor does CCS consider your immigration status for CCS eligibility. But, your child must be a resident of California. You need to provide proof of your child's residency to CCS. School registration papers should be adequate to show that your child lives in California. CCS will not accept your child's residency if you or your child: * have come to California only to get medical care; * plan to return to your home in another state or country; or * have an immigration visa that says you are visitors, temporary students, or diplomats. If CCS denies eligibility because you or your child are not California residents, your child can still qualify if someone who is a California resident becomes her guardian. 3. How is CCS funded and operated? The State of California and each county jointly fund the CCS program. They use a formula based on expenditures for the 1990-91 fiscal year. Funding for CCS services comes equally from county and state funds. A county may decide to contribute more than the minimum required. In that case, the state will match the larger amount. In counties with a total population of over 200,000 people, the county administers the CCS program at the local level. In smaller counties, the state usually runs the local CCS program. If you live in a small county, you would contact CCS through the county health department. Decisions about eligibility and treatment services come from the state regional office serving the area, however. 4. If my child has a diagnosis of mental retardation, is she eligible for CCS services? Mental retardation itself is not a CCS eligible condition. Your child may be eligible if she has qualifying physical disabilities. If your child has Downs Syndrome and needs medical equipment because of a physical condition, purchase of the medical equipment may be a CCS benefit. 5. How do I get CCS services for my child? To begin with, someone should refer your child to CCS. Anyone can make a referral. Your child's treating doctor is often the one to make a referral to CCS for services. The hospital or clinic where your child goes for medical services should help you complete an application. Referrals should be made to the county CCS agency, which is part of the county department of health. Within five calendar days of receipt of a referral, the county must mail or deliver to you (or to the child's legal guardian, or to the child if he is 18 years of age or older) a written notice that includes the source and date of the referral and a blank application form. 22 C.C.R. § 42000(b). If you complete and return the application form to CCS within 20 days, CCS will consider the date of the referral the same as the date of the application. This means CCS will pay for services from that date. After CCS receives the initial application, it will ask for more information. It may ask for copies of California and federal income tax returns, residential eligibility information, guardianship and custody information, family size, etc. The county must determine financial eligibility for the program within 30 days from the date it receives your information. 22 C.C.R. § 42050(a). 6. Can my child also receive Medi-Cal? During the financial screening process, CCS may find that your child may be eligible for full scope Medi-Cal. In that case, it will refer your child to the county welfare department to apply for Medi-Cal as part of the application and financial screening process. (See Chapter 10 on the Medi-Cal Program.) CCS should not refer your child to the Medi-Cal program if she would be ineligible for Medi-Cal. It should also not refer your child to Medi-Cal if she would qualify for Medi-Cal only with a share of cost. But, it may be in your child's best interest to apply for Medi-Cal with a share of cost. The share of cost under Medi-Cal may be less than that under the CCS program. In addition, Medi-Cal will cover all health care needs, not just those related to the CCS-eligible condition. 7. How does CCS coordinate services with Medi-Cal? There are still problems in coordinating CCS fees and Medi-Cal share-of-cost fees. If your child is eligible for both CCS and Medi-Cal (dual-eligible), CCS manages the treatment services required because of the CCS-eligible condition. This means that CCS uses its more favorable medical-necessity standard. A dual-eligible child should have access to more providers than a child eligible for Medi-Cal only. This is because some hospitals and providers accept CCS but not Medi-Cal. However, dual-eligible children are sometimes treated as though they were Medi-Cal only and in practice cannot get services they could get if they were eligible only for CCS. If your child gets both CCS and Medi-Cal benefits: * Medi-Cal pays for the services it covers, but CCS authorizes those services; * CCS provides the Medi-Cal case management; but CCS must pay for services covered by CCS which Medi-Cal does not cover. Procedures for hearings for dual-eligible children also remain unresolved. CCS and Medi-Cal have granted combined hearings. If your child is dual-eligible and there is a dispute, you should ask for a joint CCS/Medi-Cal hearing. A joint hearing allows you to combine your child's CCS and Medi-Cal claims. 8. Do we need to pay any charges for our child's CCS services? Generally, you need to pay a $20 fee per year for CCS services. You will not have to pay the $20 fee if: * Your child is eligible for full scope Medi-Cal benefits without a share of cost; or * If your child gets physical or occupational therapy at school through CCS based on his or her IEP, or if you have income less than the federal poverty level. You must also pay an annual enrollment fee for participation in the CCS program. This is a sliding fee based on family size and income, and CCS adjusts it regularly to reflect changes in the federal poverty level. You won't have to pay the enrollment fee when: * The only services required are for diagnosis to determine eligibility for services; * The only services required are physical or occupational therapy; or * You have a gross annual income of less than 200 percent of the federal poverty level. Each county collects the enrollment fee established for a family. The county may arrange for periodic payment during the year if a lump sum payment would cause the family a hardship. The state director of CCS may waive all or part of the fee if payment will result in undue hardship. The CCS regulations list two reasons for not having to pay the enrollment fee: * A reduction in family income; or * Unavoidable family expenditures. You can also ask to make monthly payments if paying the whole enrollment fee at once will cause you hardship. Failure to pay (or to arrange for payment or waiver of the enrollment fee) within 60 days of the due date will result in termination of CCS payments for treatment services. 22 C.C.R. § 42125(e). 9. How does our child get assistive technology through CCS? CCS provides medically necessary benefits. These are "those services, equipment, tests, and drugs which are required to meet the medical needs of the client's CCS-eligible medical condition as prescribed, ordered, or requested by a CCS physician." 22 C.C.R. § 41518. CCS services include evaluations and purchase of necessary assistive technology. This includes medical supplies, durable medical equipment (such as wheelchairs or prone standers), medical appliances (braces, artificial limbs, hearing aids, etc.) and electronic or manual communication devices. In addition, CCS provides repairs, maintenance and upkeep of appliances and equipment. Except for emergencies, CCS must authorize assistive technology before you buy it. Unless there is a prior authorization, CCS will not pay for assistive technology. The need for most assistive technology is discussed in a medical therapy unit conference. The need for equipment and services should be based upon individual needs. 10. How long does it take for CCS to provide assistive technology? There is no specified time limit for CCS to agree or refuse to provide requested services and technology. It should provide benefits within a reasonable period of time, however. It is not uncommon for a child to wait months after her doctor sends a request to CCS. Parents and advocates must be persistent in contacting CCS and speaking with higher level administrators if necessary. In some cases, it may be helpful to write to: Chief, CCS Division Department of Health Services 714\744 "P" Street Sacramento, California 95814 Phone: (916) 654-0832 After you have waited longer than you believe is reasonable, you should treat CCS failure to act upon a request as a denial. File a written request for an appeal with the local CCS administrator even if you have not received a denial. See questions 19 and 20 below. 11. What medical supplies will CCS buy? CCS will buy medical supplies necessary to treat a CCS-eligible condition in a hospital or at home. For example, oxygen and supplies necessary to administer it, sterile dressings, and tracheostomy suctioning supplies are CCS benefits. 12. What medical appliances will CCS provide? CCS provides medical appliances that it finds to be medically necessary to treat or alleviate a CCS-eligible condition. Appliances are: "manufactured articles or devices which contribute to the correction of a physical defect or facilitate function. These include, but are not limited to, braces, artificial limbs, crutches, eyeglasses and other optical appliances [but not to correct near or far sightedness only], hearing aids and accessories including batteries, earmolds, and insurance against loss or damage." CCS Manual of Procedures § 1.4.1 - 4.2. CCS may also authorize repairs, maintenance, and upkeep of appliances. CCS will buy materials necessary to construct special appliances. CCS will buy prescription shoes when prescribed by an authorized physician. CCS will buy ordinary well-made shoes when use of a brace or correction of a handicap is delayed because the family cannot afford to buy the shoes. CCS Manual of Procedures § 1.4.1 - 5. 13. What standards does CCS apply in buying durable medical equipment? CCS buys durable medical equipment (such as manual or power wheelchairs) that are medically necessary for a child's habilitation or rehabilitation, but are not covered as benefits of third party payers (such as private insurance or Medi-Cal). CCS Numbered Letter 12-0490. In addition, CCS applies the following criteria when deciding whether to provide requested equipment: * Equipment should be adjustable to accommodate growth whenever possible. * Recommended equipment should not duplicate or serve essentially the same purpose as existing equipment. Philosophical differences of parents, care providers, agencies, or therapists do not justify change of equipment when existing equipment is functional and can be repaired to ensure safety. * The physical setting of the home should accommodate the equipment. * The family should be able to care for and, if necessary, transport the equipment. * Practical and functional use shall have been demonstrated and documented. * Equipment for school use is the responsibility of the local education agency. * CCS purchases standard durable medical equipment that is the most cost effective to meet the medical, growth, and safety needs of the child. * CCS shall not pay for repairs or maintenance of equipment which has been superseded by another device serving the same purpose. Even though some items may be used in treatment or may be useful for you or your child, they are not CCS benefits. These include bicycles, bolsters, crawlers, cribs, exercise mats, fixed recline wheelchairs, motorized caster carts, personal computers and accessories, sand bags, side-lying positioners, strollers, tricycles, van lifts, wedges, weights, wheelchair carriers, and convenience accessories for mobility (book bags, diaper bags, horns, mirrors, etc.). CCS Numbered Letter 07-0291. You may need to challenge a CCS standard. Numbered letters such as the one quoted above are not regulations and do not have the force of law. For example, CCS may be responsible for purchasing a wheelchair or positioning device even though your child will use it at school. Some of the items excluded, such as van lifts, wedges, and weights, may be a CCS responsibility if they are medically necessary. From time to time, CCS reverses itself on the medical necessity of items previously excluded. For example, CCS had listed side-lying positioners as an excluded item in Numbered Letter 07-0291. Two years later, it acknowledged that it would purchase a side-lying positioner and listed the criteria for establishing medical necessity in Numbered Letter 23-0793. Similarly, CCS has added automobile orthopedic positioning devices (AOPDs) to its list of covered items in Numbered Letter 01-0298. AOPDs include car seats and harness vests. CCS will buy only nonstandard AOPDs for children four and older weighing 40 pounds or more. 14. What durable medical equipment will CCS buy when it is medically necessary? CCS lists the following medically necessary equipment as durable medical equipment it will buy: bath seats/chairs/rails, hand-held showers and accessories, bed baths, communication devices (including head wands), light wands, switches, expanded keyboards, membrane keyboards, keyguards, portable electronic communication devices and carrying cases, drool/splash guards, mounting brackets, dressing aids, electrically and manually operated feeders, arm supports, utensils (including non-slip surfaces or suction devices), reachers, commode seats/chairs, bidets, safety rails, transfer lifts, transfer boards, walkers of various types, crutches of various types, canes of various types, manual and power wheelchairs (including posture control types), wheelchair positioning devices (including custom seating), power wheelchairs with a standing component, buggies (Pogan or McClaren types), caster carts, attendant-propelled stretchers, prone scooters, self-propelled stretchers, helmets for head protection, seats and sitters, side lying positioners, tilt tables, prone standers, standing tables and standing frames. CCS Numbered Letter 07-0291. In addition, CCS has added flutter valves, Therapy vests, Dynamic orthotic cranioplasty head bands and Cochlear implants to its list of covered benefits. CCS Numbered Letters 02-0197, 03-0297, and 02-0796. CCS may be responsible for providing durable medical equipment that is not listed if it is medically necessary for a CCS-eligible condition. CCS has established standards for medical necessity for the above-listed equipment in Numbered Letter 07-0291. Some of the more important are discussed below. Numbered Letter 07-0291 is included at the end of this chapter and lists the criteria CCS has established for purchase of other equipment. 15. What are the standards for CCS purchase of a wheelchair? CCS has established medical necessity standards and criteria for the various types of wheelchairs or other mobility devices it will buy. To buy a travel wheelchair, CCS says that your child must need total postural support and attendant-propelled transportation in a sitting position. Your child must have a severe, complicated skeletal/motor condition, be two years old or weigh more than 25 pounds, and will not be able to use a manual wheelchair. CCS may buy a posture control chair when your child meets the standards for a travel wheelchair, needs more support to maintain body alignment and has no independent sitting ability. For the purchase of a manual wheelchair, your child must be able to be placed in a sitting or semi-reclining position and has sufficient arm strength and coordination to propel the chair or must have outgrown other types of attendant-propelled transport chairs. To get a motorized wheelchair, your child must not be able to use a manual chair and need an efficient way to get around and take part in community activities. He must have shown ability to use the control device and maneuver the chair. His independent use of the chair must be consistent, safe and responsible. CCS pays for training in wheelchair use for children who have the potential to learn. In addition, your home must be accessible to a power wheelchair. CCS will not authorize power wheelchairs for a child under five unless it is shown he has adequate judgement. CCS Numbered Letter 07-0291. 16. What are the standards for CCS purchase of an augmentative communication device? To see if your child can use assistive communication, CCS considers whether your child: * Makes eye contact; * Is aware of her own environment and changes in the environment; * Tries to control you or others; * Shows curiosity; * Indicates her wants/needs/preferences; * Shows interest in toys; or * Responds to his or her name. CCS Numbered Letter 14-0590. Before CCS will buy an augmentative communication device, your child must show (through an occupational therapy program) that she can manipulate single switches or other mechanisms to operate an electronic device. When your child does so, CCS will refer her to a speech and language pathologist for an evaluation. The pathologist will be one who specializes in augmentative and alternative communication devices. For children who are enrolled in school, CCS expects the school district to do this evaluation. CCS does not provide ongoing training in the use of an electronic communication device. CCS requires that you locate training from a school district, regional center, or Department of Rehabilitation or other agency before buying a device. CCS also requires that your child show effective functional use of the device and may rent one for this purpose before buying it. The device must be expected to meet your child's needs for a minimum of at least three years. You need to show you can maintain and care for the equipment. The device must be the most cost effective option that will meet your child's needs. It should adjust to your child's increasing communication skills and abilities. When CCS buys a device for your child, it becomes your child's property. CCS Numbered Letter 14-0590, Manual of Criteria § 4.8.3.A. CCS will also buy necessary head wands, keyguards, mounting brackets and carrying cases. 17. Does CCS purchase newly introduced durable medical equipment? According to CCS, newly introduced durable medical equipment is equipment that has come on the market within the last six months. CCS buys such equipment with some restrictions. Newly introduced medical equipment, prosthetics, and orthotics costing over $2,000 are subject to review and approval by the state CCS office before they can become a program benefit. You need to make a special request for such a review. You must wait for state approval before buying the item. CCS Numbered Letter 12-0490. 18. Our child is also covered by our own private insurance. Will CCS pay for an assistive technology device that our insurance would not cover? When your child is also covered by another health plan, CCS will pay for your child's medical expenses if the health plan will not cover the services or will pay only part of the bill. This might happen when your insurance has limited coverage of certain services such as durable medical equipment, medical supplies and prostheses. We recommend that you get CCS approval for the device first, even if the insurance or health plan may cover all or part of the charge. Once CCS approves, the provider should bill your private insurance. Then CCS will pay for anything your insurance does not cover. 19. What can we do if we disagree with a CCS decision? You and your child have the right to appeal CCS decisions you disagree with through a formal hearing process. 22 C.C.R. § 42700 and following. Such decisions may include cases where: * CCS denies eligibility for services; * Denies specific services or equipment for your child; * Reduces or stops a current service; or * Sets a fee too high. You can file an appeal to challenge a CCS policy if it seems inconsistent with your child's right to services under the CCS statutes or regulations. In some cases, local CCS agencies have told families that appeal would be futile or that there is no appeal process. You need to be informed and persistent. The CCS appeal process is the only formal way to challenge a CCS decision to deny, reduce or stop services, or to deny requested assistive technology. 20. What are the elements of the CCS appeal process? Notice of Action. The first element of the CCS appeal process is issuance of a written notice of action. The local CCS agency must send you a notice any time it makes a decision with which you or your child's representative disagree. 22 C.C.R. § 42701(a). The notice of action must include: * A description of the action from CCS; * The basis (reason) for the action; * The date of the notice of action; * The effective date of the action; * The law, regulation or policy supporting the action; * The business address, phone number, and name of the program director of the CCS agency taking the action; and * Information explaining your child's right to appeal, right to request continuation of services during appeal, right to review the medical record, right to appoint a representative, how to initiate an appeal, the appeal deadlines, and where to get detailed information and help with the process. The local CCS agency may fail or refuse to provide such a notice. If it does after you ask for one, you should appeal anyway. Send a written request for hearing to the local CCS agency. CCS regulations state that reducing, stopping or modifying services or benefits does not require a written notice of action if: * The CCS physician who is supervising your child medically orders the change; or * If your child is in a licensed acute care or subacute medical care facility. These limitations may violate constitutional guarantees of due process. You or your child's representative should be able to appeal a CCS decision to reduce, deny, or stop services even if your child's CCS doctor approves of the change. As a practical matter, you will have to find another doctor to support your child's needs for the services. Without that support, you cannot present a good case. Similarly, children who are in licensed acute care or subacute medical facilities should be able to appeal CCS decisions to deny payment for services, even though current regulations deny such a right. Again, it may be necessary to get legal help to challenge a CCS refusal to provide notice and the opportunity for a hearing. CCS regulations say that CCS will not provide notice of service termination if it authorized the services for a limited period, advised you of the time limit and the actual termination date is the same as the end of the limited time. If the termination date is acceptable, there is no reason to appeal. But, if you now believe that the services should continue, even though the proposed termination date once seemed reasonable, you should be able to change your mind. You might have new information, or your child may not have achieved the goal of the treatment. The best approach is to talk to the CCS agency when it first appears that the termination date may not be acceptable. Don't wait until the date set for service termination. Demand notice and the right to a hearing if CCS stops the services. Legal help may be necessary in this case. If you disagree with the decision of a CCS panel physician to deny a request for assistive technology, CCS regulations say that you are not entitled to a "notice of action" or a hearing. This may be unconstitutional. The regulations do say that you have the right to choose a doctor from a list of three "expert physicians" who will evaluate your child at CCS expense. The opinion of the expert physician is final. 22 C.C.R. § 42702. The process CCS allows here may seem acceptable in some instances. You should, however, be able to choose a physician and present testimony about your child's need for service at an administrative hearing if you are not satisfied with the opinion of the panel expert. When faced with this situation, you may want to seek legal advice. Continuation of Services. If stopping or changing your child's medical services will result in injury, loss of life, loss of physical functioning, or risk of making your child's condition worse, the services must be continued. 22 C.C.R. § 42708. Your child's prescribing physician decides whether your child will continue to receive current services or assistive technology if the appeal is about medical financial or residential eligibility. If the appeal is about medical necessity for the services in question, an expert physician decides whether to continue. The expert physician cannot be an employee or under contract with CCS. You choose the physician from a list of three supplied by the CCS agency. The agency then arranges an evaluation at a mutually acceptable time. If the physician finds that services should not continue, a court order is the only way to secure continuation. You will need to get legal advice about getting such an order. First Level Appeal. Your request to appeal a CCS decision must be postmarked within 30 calendar days of the date of the notice of action. 22 C.C.R. § 42703(a). No form is required to request an appeal. You should send a letter of appeal to the CCS agency that sent you the notice of action. This may be the county CCS agency or, in smaller counties, the regional CCS office. The local CCS agency must help you file an appeal if you ask. Your request for an appeal should set out what CCS action you disagree with, information that supports your child's position, and a request to continue current CCS services (if you want them to continue). Within 21 calendar days of receiving a written appeal, the CCS agency must review the appeal. If enough information is available, the agency must mail you a response. The response should explain the basis for the decision, including pertinent facts and supporting statutes or regulations. If the agency needs more information to make the decision, it must respond to the appeal within 21 calendar days of receiving the additional information. If this first decision is unfavorable, you may ask for a CCS fair hearing. 22 C.C.R. §§ 42703(e)(f). CCS Fair Hearing. You must file a request for a CCS fair hearing with the director of the Department of Health Services (DHS) within 14 calendar days of the date of an unfavorable written first level decision. 22 C.F.R. § 42705. You should send your hearing requests to: Director - Department of Health Services 714\744 "P" Street Sacramento, California 95814 You must include a copy of the first level appeal decision with your request for a hearing. Your child must sign the request if she is over 18. If she is a minor, you or her legal guardian will sign the request. The request should set out the decision you are appealing and why you disagree with the decision. If DHS finds that your request is not specific or that it lacks necessary information, DHS must notify you within 14 days. You must submit additional information within 14 calendar days. The hearing officer may defer or deny your request for a fair hearing if you do not provide the additional information within 14 calendar days. Written notice of the time and place of the CCS fair hearing must be mailed to you at least 30 calendar days before the date of the hearing. 22 C.C.R. § 42706. The fair hearing must be at a time and place reasonably convenient to you. 22 C.C.R. § 42707. Before the hearing, CCS must make available a list of the names and addresses of witnesses it intends to call at the hearing. You can inspect and copy records in CCS possession, but you need to make a written request. CCS can ask for a list of witnesses you intend to call and for copies of documents that you may have. 22 C.C.R. § 42710. The hearing officer can issue a subpoena to compel a witness to testify at the hearing. 22 C.C.R. § 42711. A hearing officer conducts the CCS fair hearing. Currently, CCS hearing officers come from DHS. At the hearing, each side presents written evidence or oral testimony from witnesses. Both sides should have necessary evidence and witnesses present at the hearing and be ready to proceed. Although it is not required, it is a good idea to get help from an experienced advocate or attorney before pursuing a fair hearing. After the hearing, the hearing officer prepares a proposed decision. The director of DHS will either adopt the proposed decision as the final agency decision, or change the proposed decision before issuing it. Many people feel that it is unfair to allow the DHS director to issue the final decision. However, the state CCS agency does overturn local decisions on occasion. Further, your child must complete this administrative proceeding before you can ask a court to hear the dispute. Any court action will rely on the facts presented at the administrative hearing, so it is an important proceeding. ATTACHMENTS TO CHAPTER 5 CALIFORNIA CHILDREN'S SERVICES DURABLE MEDICAL EQUIPMENT GUIDELINES FOR RECOMMENDATIONS FOR PURCHASE FEBRUARY 1, 1991 Department of Health Services 714/744 P Street P.O. Box 942732 Sacramento, CA 94234-7320 (916) 322-1602 NL: 07-0291 Date: February 1, 1991 Index: Durable Medical Equipment TO: County CCS Administrators, Medical Consultants, Supervising Therapists and State CCS Regional Offices SUBJECT: Guidelines for Durable Medical Equipment Recommendations for Purchase These guidelines have been updated to provide you with the current program guidelines for therapists in developing recommendations for the purchase of durable medical equipment. Our thanks to those of you who contributed to this revision. Please continue to inform our therapy consultants of recommended changes and additions. Maridee A. Gregory, M.D., Chief California Children Services Branch Enclosures CCS GUIDELINE FOR RECOMMENDATION FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT (DME) Purpose * To list those items which may be a CCS benefit for an individual whose physical handicap prevents full participation in self-care, in the home and in the community. * To establish criteria which must be met before recommending equipment to the treatment team for consideration and prescription. Use * As a guide for prescription to the physician. * As a management tool for supervising therapists and state consultants. The guidelines on the following pages have been developed by a committee of CCS supervising therapists to assist staff in making timely and appropriate equipment decisions and assist counties and state regional offices in achieving uniformity in CCS purchases. State CCS staff wishes to express their appreciation to all of the CCS therapists who contributed to this guide by writing, reviewing, commenting, and rewriting. February 1, 1991 CCS GUIDELINE FOR RECOMMENDATION FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT Criteria for Recommending Equipment for Prescription and Purchase * Equipment should be adjustable to accommodate growth whenever possible. * Recommended equipment should not duplicate or serve essentially the same purpose as existing equipment. Philosophical differences of parents, care providers, agencies, or therapists do not justify change of equipment when existing equipment is functional and can be repaired to ensure safety. * The physical setting of the home should accommodate the equipment. * The family should be able to care for and, if necessary, transport the equipment. * Practical and functional use shall have been DEMONSTRATED and DOCUMENTED. * Equipment for school use is the responsibility of the local education agency. * CCS purchases standard DME that is most cost effective to meet the medical, growth, and safety needs of the child. * CCS shall not pay for repairs or maintenance of equipment which has been superseded by another device serving the same purpose. The following items may be used in treatment or be useful for the child or family, but are not CCS benefits: Bicycles motorized caster carts van lifts bolsters personal computers and accessories wedges car seats sand bags weights crawlers side lying positioner wheelchair carriers cribs strollers fixed recline wheelchair exercise mats tricycles Convenience accessories for mobility, i.e., book bags, diaper bags, horns, mirrors, etc. February 1, 1991 CCS GUIDE FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT ADL: Bathing - Seats/chairs Safety rails Hand shower Bed bath ADL: Communication - Interfaces Portable communication devices EQUIPMENT MEDICAL NECESSITY CRITERIA RELATED CONSIDERATIONS BATHING: Bath seats/chairs/rails Requires support to sit, transfer, and/or be bathed safely. Functional use has been established and documented. Hand held showers and accessories Requires sitting position for all bathing needs. Has supported or independent sitting balance. Has functional upper extremity use and equipment will increase independence. Installation is not a CCS benefit. Bed baths Requires total assistance for bathing. Cannot be transferred to tub or shower. Poor prognosis for change in condition. COMMUNICATION (See N.L. 14-0590) Interfaces: Head wand Light wand Switches Expanded keyboards Membrane keyboards Keyguard Requires interface to alert others. Demonstrates to the MTC team effective functional use. Must be the most cost effective device unless a medical reason for another choice is documented. Switch may be rigged to activate toys purchased by the family. Portable communication device Requires device to communicate with others. Demonstrates to the MTC team effective functional use with family and in school setting. A physician has confirmed diagnosis of dysarthria or significant speech delay in the absence of severe developmental disability. Must be the most cost effective device that meets criteria. Equipment should be adjustable to accommodate increased communication skills and abilities. CCS GUIDE FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT ADL: Communication - Portable communication devices (cont'd) Drool/splash guard Mounting bracket EQUIPMENT MEDICAL NECESSITY CRITERIA RELATED CONSIDERATIONS School or other agency has agreed in writing to provide ongoing training. COMMUNICATION: Portable communication device (continued) Rental or trial of loaned device recommended prior to purchase. Family has demonstrated compliance by utilizing the device on a daily basis. Must meet the child's needs a minimum of 3 years. Family demonstrates the ability to maintain and care for the equipment. Parent and child acceptive to the use of equipment. No purchases of equipment made during the training period. CCS will purchase when the child is ready to use device on a 24 hour basis as medical necessity. Drool/splash guard Safety and maintenance. Required to protect the integrity of the equipment. Mounting bracket Requires attachment to wheelchair or tray. Child has own wheelchair and tray. Children who are in power wheelchairs may require a second bracket for the back wheelchair in order to make device available at all times. CCS GUIDE FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT ADL: Communication - Carrying Case ADL: Communication ADL: Dressing Aids ADL: Feeding Feeders Arm Supports EQUIPMENT MEDICAL NECESSITY CRITERIA RELATED CONSIDERATIONS COMMUNICATION: (cont.) Carrying case Requires assistive device for independent dressing. Child is ambulatory with/without assistive devices. DRESSING: Dressing aids Requires assistive device for independent dressing. Is able to sit independently. Device augments limited arm and hand use. Can be homemade. Cost may be minimal that is not cost effective to authorize. FEEDING: Feeders; electrically and manually operated Requires feeder device for partial independence in feeding. Has demonstrated ability to functionally utilize device. Manual: Has ability to hold head against gravity. Has ability to lean forward in chair. Has ability to remove food from spoon and swallow. Can use hands/arms to operate device. Electric: Has ability to hold head against gravity. Is unable to lean forward in wheelchair. Has inability to operate a manual feeder. Family has demonstrated compliance by utilizing device in home on daily basis for at least three months. Arm supports Requires anti-gravity arm support. Has shoulder girdle weakness or upper extremity coordination problems. Arm support has been demonstrated to measurably increase function in ADL. CCS GUIDE FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT ADL: Feeding - Utensils EQUIPMENT MEDICAL NECESSITY CRITERIA RELATED CONSIDERATIONS FEEDING: (cont.) Utensils (including nonslip surfaces or suction devices). Requires adaptive equipment for partial or total independence in feeding. Has ability to use device. Standard utensils may be modified. Standard child care equipment to be purchased wherever possible. Cost may be so minimal, it may not be cost effective to authorize. CCS GUIDE FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT ADL: Reachers ADL: Toileting - Commode seats/chair Bidet Safety rails ADL: Transfer Lift Transfer board EQUIPMENT MEDICAL NECESSITY CRITERIA RELATED CONSIDERATIONS REACHERS: Requires assistive device for partial independence. Has sufficient upper extremity function and strength to operate device. TOILETING: Commode seats/chairs Requires a safe supported sitting position for Toileting due to moderate to severe physical handicap. Has physiological and cognitive readiness for training. Has outgrown standard child training chair or requires more support than a standard chair can provide. Consider standard commercial items before custom made. Some models may also be used as bath or shower seats. Bidet Requires support for sitting and/or independent or assisted transfer. Has ability to bear weight on lower extremities. Has some functional use of upper extremity. Installation not a CCS benefit. Some rental homes or apartment do not allow installation. Safety rails Requires support for sitting and/or independent or assisted transfer. Has ability to bear weight on lower extremities. Has some functional use of upper extremity. Installation not a CCS benefit. Some rental homes or apartment do not allow installation. TRANSFER: Lift Requires total assist for transfer. Is totally dependent in transfers. Rent or loan prior to purchase. Consider size of rooms in which it will be used. Transfer board Requires means of transfer in sitting position with or without assistance. Has sitting balance. Could be homemade. CCS GUIDE FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT ADL: Mobility - AMBULATORY ASSIST Ambulators Walkers EQUIPMENT MEDICAL NECESSITY CRITERIA RELATED CONSIDERATIONS AMBULATORS: Full-body suspension walker Requires external trunk and/or pelvic stability in order to ambulate. Must be able to bear partial weight on upper extremities to propel and maneuver. Must be able to advance lower extremities. Needs attendant assist to be positioned in device. Ring walker As above. Must be able to propel walker in a purposeful manner with lower extremities. As above. Axillary suspension walker As above. Must have stability of hip, knee, and ankle joints and normal function of upper extremities. As above. Torso suspension walker As above. Must be able to bear weight and to advance lower extremities. Must have some upper extremity control to steer, or lower extremity and trunk control to maneuver. As above. Weight-relieving walker As above. Must be able to bear weight and to advance lower extremities to propel walker. As above. WALKERS: Four-wheel walkers Requires an external fixed-base support to maintain balance in upright position in order to ambulate. Has supportive weight control of upper extremities and reliable upright balance to maintain directional control. Is able to transfer in and out of the walker independently or with minimal assistance. CCS GUIDE FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT ADL: Mobility - AMBULATORY ASSIST Walkers EQUIPMENT MEDICAL NECESSITY CRITERIA RELATED CONSIDERATIONS WALKERS: (cont.) Two-wheel walkers (e.g., Rollator type) As above. Is able to maintain upright position and have reliable upper extremity function to steer. Pick-up walkers Requires an external fixed-base support to maintain balance in upright position in order to ambulate. Is able to slide or lift device forward while maintaining upright posture. Must be able to bear full body weight. Reverse walkers As above. Is able to slide or lift device forward while maintaining upright posture. Must be able to bear weight on extended elbows bilaterally. CCS GUIDE FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT ADL: Mobility - AMBULATORY ASSIST Crutches Canes EQUIPMENT MEDICAL NECESSITY CRITERIA RELATED CONSIDERATIONS CRUTCHES: Axillary Requires external nonfixed support to maintain balance and/or full weight-bearing. Has ability to maintain upright posture through fair trunk strength and good to normal upper extremity strength and coordination. Triceps As above. Has ability to maintain upright posture through fair trunk strength, good shoulder girdle, and hand strength coordination. Forearm As above. Has ability to maintain upright posture through good to normal trunk and upper extremity strength and coordination, good triceps, and wrist stability. CANES: Quad cane Requires external nonfixed support to maintain balance or redistribute weight. Patient has trunk and lower extremity ability to maintain upright posture. Has fair to good upper extremity coordination and strength. Functional design cane As above. Has fair to good upper extremity coordination. Platform crutch As above. Cannot take weight through dorsiflexed wrists because of pain or deformity. Standard As above. Has ability to maintain an upright posture. Has good to normal upper extremity coordination. CCS GUIDE FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT ADL: Mobility - Attendant Propelled Self-Propelled Seated Wheelchairs Travel Posture Control Chair Buggy Caster Cart EQUIPMENT MEDICAL NECESSITY CRITERIA RELATED CONSIDERATIONS WHEELCHAIRS: Travel Needs total postural support and requires attendant-propelled transportation in a sitting position. Has severe complicated skeletal/motor condition; is two years of age or weighs in excess of 25 pounds. Has poor prognosis to propel manual wheelchair. Posture control chair (e.g., Molholland or Gunnell types) Requires attendant propelled transportation in a sitting position, but needs additional postural support to maintain body alignment. Has no independent sitting ability. Same as above. May not be easily transportable. Buggy (Pogan or McClaren types) Requires attendant propelled transportation in a sitting position. Is functionally nonambulatory and has outgrown commercially available baby stroller. May serve a base for posture insert. CCS benefit if device does not duplicate another non-motorized seated mobility device owned by patient. Is possibly a cost-effective alternative to a standard wheelchair for a prospective ambulator. Caster cart Requires safe means of locomotion to protect skin, paralyzed limbs, and/or fragile bones. Development level and size preclude wheelchair use. Has good upper extremity function. Motorized caster carts are not a CCS benefit. CCS GUIDE FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT Mobility - Attendant Propelled Self-Propelled Seated Wheelchairs Manual Motorized EQUIPMENT MEDICAL NECESSITY CRITERIA RELATED CONSIDERATIONS WHEELCHAIRS: (cont.) Manual wheelchair Requires sitting position for independent and/or attendant propelled mobility. Is able to assume or be placed in sitting or semi-reclining position. Has sufficient upper extremity function, strength and coordination to propel chair or has outgrown other types of attendant-propelled transport chairs. Precaution: Light weight chair should be checked for tendency to tip backwards, ease of propulsion, setting posture, etc. Motorized wheelchair Requires sitting position for independent mobility and requires efficient means of mobility to participate in community activities. Is able to assume or be placed in sitting or semi-reclining position. Is able to operate selected control device and maneuver chair in a consistent, safe, and responsible manner independently. Ability to operate has been demonstrated and documented. Home must be accessible for power wheelchair. Can parent transport a power wheelchair? Should not be authorized for child under five without documentation of judgment criteria. Buggy (Pogan or McClaren types) Requires attendant propelled transportation in a sitting position. Is functionally nonambulatory and has outgrown commercially available baby stroller. May serve a base for posture insert. CCS benefit if device does not duplicate another non-motorized seated mobility device owned by patient. Is possibly a cost-effective alternative to a standard wheelchair for a prospective ambulator. CCS GUIDE FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT Positioning - PRONE Stretchers Scooter Boards Prone Scooters Self-Propelled Stretchers Head Protection Helmet EQUIPMENT MEDICAL NECESSITY CRITERIA RELATED CONSIDERATIONS POSITIONING: Stretcher Attendant-propelled Requires extended periods in prone position. Is able to assume or be placed in recumbent position. For rental only - unless price exceeds purchase cost. Scooter board Prone scooters As above. Is able to propel with arms or legs. Is of developmental level and size which precludes use of self-propelled stretcher. Has normal head and trunk control. Consider short-term loan, home construction. Self-propelled stretcher As above. Has independent function of upper extremities. Recommended for rental only. Would rarely be considered for long-term use. HEAD PROTECTION: Helmet Requires protection for head. Documented danger of head injury. Sports type helmets should be considered. CCS GUIDE FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT Positioning - SEATED Floor sitters Feeder seats Positioning devices and/or inserts for wheelchairs EQUIPMENT MEDICAL NECESSITY CRITERIA RELATED CONSIDERATIONS SITTERS: Floor sitters Requires a supported sitting position which accommodates flexed and abducted hips/extended knees. Has head control and is at least 18 months of age. Noncommercial variety preferred. No existing equipment of child meets same need. Loan or homemade chairs should be considered for children younger than 18 months. Feeder seats Requires support of head and trunk to maintain a sitting position. When necessary for feeding, the child is at least 9 months of age; when necessary as a mobility insert, child weighs at least 25 pounds. No existing equipment of child meets same need. WHEELCHAIR POSITIONING DEVICES: A. Commercial Requires skeletal support in sitting to prevent further deformity and to enhance function. Has severe complicated skeletal/motor condition; weighs in excess of 25 pounds. 1. Requested equipment does not duplicate the function of the existing equipment. 2. System should accommodate child's growth for a projected four-year period. B. Custom Requires skeletal support in sitting to prevent further deformity and to enhance function. As above. Commercial systems have been evaluated and do not provide required skeletal support. Same as number 1 above. CCS GUIDE FOR PURCHASE OF DURABLE MEDICAL EQUIPMENT Positioning - STANDING Tilt Tables Prone Standers Standing Tables Standing Frames EQUIPMENT MEDICAL NECESSITY CRITERIA RELATED CONSIDERATIONS POSITIONING: Tilt tables Prone standers Requires weight bearing through lower extremities to promote bone density and requires a daily standing program over a prolonged period of time with or without augmentation from therapy program. Has ability to clear air passages. Is nonfunctional in standing and walking. Family and child have demonstrated ability to implement a daily home standing program. Consideration should be given to cost when choosing between commercial and noncommercial types. for home use only. Standing table Standing frames Requires weight bearing position for promoting and/or maintaining standing pivot transfers and/or requires a daily standing program over a prolonged period of time. Has functional truncal endurance for upright posture. Has neck and upper trunk control. Family and child have demonstrated ability to implement a daily home standing program. See above. Requested equipment does not duplicate existing equipment. For home use only. ---------- Chapter 6 REASONABLE ACCOMMODATION IN EMPLOYMENT Table of Contents Question OVERVIEW 1. What is the ADA? 6-2 2. Who is protected by the ADA? 6-2 3. What does "essential job functions" mean? 6-4 4. What does "substantial limitation in a major life activity" mean? 6-4 5. What factors are considered in determining whether I am substantially limited in a major life activity? 6-5 6. What is a substantial limitation in the life activity of "working"? 6-5 7. Does the ADA cover temporary disabilities? 6-6 8. In what areas of employment does the ADA prohibit discrimination? 6-6 9. Must my employer know I have a disability before I am protected by the ADA? 6-7 10. Do I have to inform my employer of my disability during the hiring process? 6-7 11. How do I prove to an employer that I am disabled? 6-7 OTHER DISABILITY LAWS 12. I work for the federal government. What law protects me? 6-8 13. I work for an employer who has a contract with the federal government. What law protects me? 6-8 14. I work for an entity that receives funds from the federal government. What law protects me? 6-9 15. Is there any California law that protects employees with disabilities? 6-10 16. What employers are covered by the state laws? 6-10 REASONABLE ACCOMMODATIONS 17. What is a "reasonable accommodation"? 6-11 18. How do I ask for a reasonable accommodation? 6-12 19. I need an assistive device to do my job. May I ask my employer to provide it? 6-12 20. I know what equipment meets my work-related needs. Am I entitled to it? 6-13 21. I use my own computer for work. It is breaking down. Can I have my employer pay for its repair? 6-13 22. In what areas of employment can I ask for an assistive device? 6-14 23. For what types of assistive devices can I ask? 6-14 24. I have a mobility impairment and need to use a wheelchair. Can I ask my employer to make one available to me at work? 6-16 25. I have a visual impairment and cannot read print. Do I have a right to have the job application and other job information in an alternative format? 6-17 26. I work full time. To accommodate me, my employer lets me work from home for part of the time. Can I ask for special equipment to help me with the work I do from home? 6-18 27. My company is undertaking significant modifications to our current computer system. As a result, I no longer can use my special equipment. What can I do? 6-18 28. What do I need to do to get the right equipment for work? 6-18 29. I have a written evaluation done by the Department of Rehabilitation which states the assistive devices I need. How can I use this evaluation? 6-19 30. Can my employer require me to obtain a letter from my doctor stating what kind of equipment I need? 6-19 31. Is my employer obligated to provide any accommodation that I request? 6-20 32. What is an "undue hardship"? 6-20 INFORMATION ON FILING EMPLOYMENT DISCRIMINATION COMPLAINTS 33. Can the laws help me if I think that my employer is discriminating against me because I have a disability? 6-21 34. How do I know whether to file a state or federal complaint? 6-21 35. Where and when can I file an ADA complaint? 6-22 36. I filed a complaint with the DFEH (or the EEOC). What can I expect to happen? How long will it take for the agency to help me? 6-22 37. What will happen if my complaint is found to be true? 6-23 38. Does it make any difference whether I am in a union or not? 6-23 39. What about mediation? Is it a faster way to resolve my concerns? 6-24 40. I am employed by a federal agency. Where and when do I file my Section 501 complaint? 6-24 41. I am employed by an employer who has a contract with the federal government. Where and when do I file my Section 503 complaint? 6-25 42. I am employed by an employer who receives federal funds. Where and when do I file my Section 504 complaint? 6-26 43. Where and when can I file my state law complaint? 6-26 ATTACHMENTS * Sample Reasonable Accommodation Request * Sample Doctor's Letter Supporting a Need for an Accommodation * OFCCP Offices in California Chapter 6 REASONABLE ACCOMMODATIONS IN EMPLOYMENT The right to assistive technology in employment is tied to the right to reasonable accommodation. The laws that make discrimination on the basis of disability illegal requires employers to make changes and adjustments so that qualified people with disabilities can enjoy equal employment opportunities. Such changes and adjustments are called "reasonable accommodations." These may include providing new devices or changing current equipment so that an employee with a disability can perform his job. There are six main federal and state laws that protect people with disabilities from discrimination in employment. These are: * The Americans with Disabilities Act (ADA). 42 U.S.C. § 12001 and following; * Sections 501, 503, and 504 of the Rehabilitation Act; 29 U.S.C. §§ 791, 793, and 794; * The California Fair Employment and Housing Act (FEHA). Cal. Govt. Code § 12900 and following; and * The California Government Code § 11135. In this chapter, we will generally refer to the terms and provisions of the ADA unless other laws differ significantly. We will, however, explain other federal and state laws in a section in this chapter called OTHER DISABILITY LAWS so that you become familiar with the additional rights they may give you. Keep in mind that more than one law may apply in your case. In addition, the ADA does not apply to all situations. For example, the ADA does not cover employees of the federal government. Federal employees are protected by Section 501 of the Rehabilitation Act, however. OVERVIEW 1. What is the ADA? The Americans with Disabilities Act (ADA) is a federal law that makes discrimination based on disability illegal. It gives civil rights protection to people with disabilities and prohibits discrimination in employment as well in public services. The ADA has several titles that are like chapters in a book. Titles I and II of the ADA prohibit employment discrimination. Title I covers private employers and labor unions with 15 or more employees or members. Title II covers state and local government agencies regardless of the number of people they employ. The legal standards of Title I apply equally to Title II. Therefore, we will refer mainly to Title I provisions in this chapter. See question 35 for information on how to file an ADA complaint. Some employers are exempt from the ADA. They are the Federal Government, the United States, Indian tribes, and private membership clubs. 42 U.S.C. § 12111(5)(B). 2. Who is protected by the ADA? The ADA protects "qualified individuals with a disability." This means that you must: * Be qualified to perform the essential functions of the job (in other words, with or without a reasonable accommodation). You must have the minimum requirements necessary to perform the job such as the necessary education, experience, or licenses; 42 U.S.C. § 12102(8); 29 C.F.R. § 1630.2(g) and * Have a disability that is a physical or mental impairment that substantially limits one or more major life activities (such as working, learning, performing manual tasks, walking, seeing, hearing, speaking, breathing, and caring for yourself)[Note] or * Have a record of such an impairment (such as a condition in remission); or * Be regarded as having such an impairment. For instance, if your impairment does not limit your ability to do your job, but your employer treats you as if it does, then you are regarded as having an impairment. 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). The ADA also protects anyone discriminated against because he or she is associated with or related to someone who has a disability. The definition of a disability does not include transvestitism, sexual behavior disorders, or current illegal drug use. 3. What does "essential job functions" mean? Essential job functions means job tasks that are important to the job. Important job tasks are necessary job duties of the position. Consideration is given to the employer's judgment about what parts of a job are essential. If an employer has prepared a written job description before advertising or interviewing applicants for the job, this description is evidence of the essential functions of the job. Marginal functions are tasks that are not essential to the position. Often they are duties that are included in a job description as "other duties as assigned." The employer must consider you for a job as long as you can do the important functions of a job with or without reasonable accommodation. Employers may not deny you a job simply because you cannot do marginal job functions if the inability to perform them is because of your disability. 4. What does "substantial limitation in a major life activity" mean? The term substantial limitation in a major life activity means: * Being unable to perform a major life activity that the average person in the general population can perform; or * Being significantly restricted as to the condition, manner, or length of time under which you can perform a particular major life activity as compared to the condition, manner, or length of time which the average person can perform that same activity. For example, if you must rest for a long time after walking a few blocks, you are "substantially limited" in that major life activity. 5. What factors are considered in determining whether I am substantially limited in a major life activity? The following factors are considered in determining whether you are substantially limited in a major life activity: * The nature and severity of the impairment; * The duration or expected duration of the impairment; * The permanent or long term impact, or the expected permanent or long-term impact of or resulting from the impairment; and * Whether the effect of the impairment can be reduced by common measures such as the wearing of eye glasses. 6. What is a substantial limitation in the major life activity of "working"? With respect to the major life activity of working: Substantial limitation means being significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having similar training, skills, and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. In addition to the factors listed, the following factors may be considered in determining whether you are substantially limited in the major life activity of working: * The geographical area to which you have reasonable access; * The number and types of jobs for which you are not qualified because of your impairment which require similar training, knowledge, skills, or abilities that are within that geographical area. 7. Does the ADA cover temporary disabilities? No, the ADA does not cover temporary disabilities. One of the factors that may be considered to determine whether a disability is "substantially limiting" is the length of time the disability will continue. This is considered on a case-by-case basis. There are no set time limits for determining whether an impairment will last long enough or be considered substantially limiting. There are, however, a few basic guidelines. Generally, conditions that last for only a few days or weeks and have no permanent or long-term effects on your health are not substantially limiting impairments. Examples of such short-term conditions are common colds, influenza, and most broken bones and sprains. The mere fact that you may have required absolute bed rest or hospitalization for such a condition does not alter the fact that it is temporary. Even surgery, without more, is not enough to raise a short-term condition to the level of a disability. Although short-term restrictions are not protected, a disability does not have to be permanent to be substantial. Some conditions may be long-term, or potentially long-term, in that their duration is indefinite and unknowable or is expected to be at least several months. Such conditions, if severe, may constitute protected disabilities. Thus, if you have been blinded or paralyzed but are expected to recover at some time in the future, you should be protected by the ADA. 8. In what areas of employment does the ADA prohibit discrimination? Under the ADA, employers may not discriminate because of your disability in application procedures, hiring, firing, promotion, pay, training and other terms and conditions of employment. This includes advertisements, tenure, layoffs, leave time, benefits, and all other employment-related activities. Refusing to provide a reasonable accommodation is also discrimination. See question 17. In addition, the ADA applies to contracts the employer may have with other businesses. 42 U.S.C. § 12112(a),(b); 29 C.F.R. § 1630.4(a)-(i). 9. Must my employer know I have a disability before I am protected by the ADA? Yes. The ADA prohibits discrimination only on the basis of a known disability. 42 U.S.C. § 12112(4); 29 C.F.R. § 1630.8. In order to request a "reasonable accommodation" or file a complaint against your employer for discrimination under the ADA, you must be able to show that your employer knew you had a disability. Once you tell your employer that you are disabled, you may request a reasonable accommodation. 42 U.S.C. § 12112(5)(A); 29 C.F.R. § 1630.9. Employers will not be faulted for failure to accommodate a disability that they were not informed about. 42 U.S.C. § 12112(4); 29 C.F.R. §§ 1630.8-9. It is your responsibility to let your employer know you have a disability and to request a "reasonable accommodation" if needed. PAI recommends that you request accommodations for your disability in writing. A sample Reasonable Accommodation Request letter is included in the attachments to this chapter. 10. Do I have to inform my employer of my disability during the hiring process? No. In fact, a potential employer may not ask you if you have a disability during the hiring process. 42 U.S.C. § 12112(3)(A); 29 C.F.R. § 1630.13. A potential employer may ask if you have the job skills necessary to perform the functions of the job for which you are applying. 42 U.S.C. § 12112(7)(B). This may be done by asking about your past work experience, job training, or other relevant skills. However, a potential employer may not ask you whether you have a disability at any time during the hiring process. 11. How do I prove to an employer that I have a disability? Under the ADA you are disabled whenever: * you have a physical or mental impairment that substantially limits one or more of your major life activities; * you have a record of such an impairment; or * you are regarded as having such an impairment. 42 U.S.C. § 12102(2). Sometimes a disability will be obvious, such as when you use a wheelchair. Or it may not be obvious, such as a learning disability. When a disability is obvious, generally you will not need to prove you have a disability, although you must if your employer wants documentation. If your disability is not obvious, you will need to provide your employer with information from your doctor that describes your disability. A sample doctor's letter is included in the attachments to this chapter. OTHER DISABILITY LAWS 12. I work for the federal government. What law protects me? Section 501 of the Rehabilitation Act covers all federal departments and agencies. 29 U.S.C. § 791. It prohibits disability-based discrimination against federal employees and requires that reasonable accommodations be provided in the same manner as the ADA. In fact, Section 501 uses the same concepts and definitions as the ADA. But unlike the ADA, Section 501 does not prohibit discrimination against individuals because someone they are related to or associated with has a disability. Section 501 also has its own complaint procedures which are different from procedures under the ADA. See Question 40 for when and where to file a Section 501 complaint. Section 501 protections cover all aspects of employment within federal agencies and departments, including recruitment, hiring, promotion, benefits, and any other privilege of employment. Section 501 also requires employers to have affirmative action plans for hiring, placement, and advancement of people with disabilities. 29 U.S.C. § 791(b). Affirmative action requirements are separate from the requirement to make reasonable accommodations. 13. I work for an employer who has a contract with the federal government. What law protects me? Section 503 of the Rehabilitation Act covers contractors and subcontractors who have contracts of $10,000 or more with the federal government. 29 U.S.C. § 793; 41 C.F.R. § 60-741.1. Section 503 prohibits federal contractors from discriminating against their employees with disabilities. To avoid discrimination, federal contractors must, among other things, provide reasonable accommodations - including assistive technology - to those employees with disabilities who need such devices and services to perform the essential functions of their jobs. Section 503 has virtually identical provisions to the ADA. It does not, however, protect individuals who are discriminated against because someone they are related to or associated with has a disability. For information on when and where to file a Section 503 complaint, see question 41 in this chapter. Section 503 protections cover all aspects of employment including recruitment, hiring, promotion, benefits, and any other privilege of employment. Section 503 also requires federal contractors with contracts of $50,000 or more and 50 or more employees to use affirmative action plans for the employment and advancement of people with disabilities. 29 U.S.C. § 793. Affirmative action requirements are separate from the requirement to make reasonable accommodations. 14. My employer receives funds from the federal government. What law protects me? Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability by any agency or business receiving federal funds. Section 504 offers essentially the same protections as the ADA. It protects qualified individuals with disabilities employed by agencies or businesses that receive federal funding. It also covers programs conducted by the federal government - such as the Medicare program, Social Security Administration, and federal housing programs. Section 504 has the same definitions for a "qualified individual" and for "disability" as the ADA, except Section 504 does not protect individuals from discrimination because of their association with or relation to a person with a disability. Section 504 requires employers covered by Section 504 to provide reasonable accommodations, such as assistive technology, to employees with disabilities. Failing to provide reasonable accommodation is considered discrimination based on disability. See question 42 for filing Section 504 complaints. The regulations to Section 504 of the Rehabilitation Act say that employees shall not be discriminated against due to the absence of "auxiliary aids for participants with impaired sensory, manual, or speaking skills." (In employment or employment-related training programs, this section applies only to intake, assessment, and referral services.) Assistive technology that is included as part of auxiliary aids means brailled and taped materials, equipment to make information available for persons with hearing impairments, equipment adapted for use by persons with manual impairments, and other similar services and actions. mployers are not required to provide individually prescribed devices and services or devices of a personal nature. 29 C.F.R. § 32.4(b)(7). The Rehabilitation Act also requires that programs that receive federal funds take appropriate steps to ensure that communications with applicants, employees, and beneficiaries are available to people with impaired vision and hearing. 29 C.F.R. § 32.4(e). This may include telephones, TDDs, or equally effective telecommunications systems. (See Department of Labor regulations at 29 C.F.R. § 33.11(a)(2).) 15. Is there any California law that protects employees with disabilities? Yes. There are two California laws that prohibit discrimination based on disability in employment. They are: * The Fair Employment and Housing Act (FEHA); and * California Government Code Section 11135 (Section 11135). Under the FEHA, employers may not discriminate against a person with a disability in hiring, training programs, firing, compensation, or other terms and conditions of employment. Cal. Govt. Code § 12940. Section 11135 provides at least the same protection as the ADA. The FEHA and Section 11135 cover all disabilities covered by the ADA, except that the FEHA does not require that physical disabilities cause a substantial limitation of a major life activity. See question 43 for filing complaints under FEHA and Section 11135. 16. What employers are covered by the state laws? Under the FEHA, an employer may not discriminate against individuals with disabilities (except mental disabilities) when it employs five or more people, in the State of California or any political/civil subdivision of the state, or in a city. Cal. Govt. Code § 12926(d). In the case of individuals with mental disabilities, employers with 15 or more employees may not discriminate against these individuals. Cal. Govt. Code § 12926(d)(2). The FEHA does not apply to religious organizations and corporations not organized for private profit. Section 11135 covers any employer that is funded directly by the state, that receives funds from the state, and that has five or more employees. The employer must receive a total of $10,000 per year from the state or at least $1,000 per arrangement. Cal. Govt. Code § 11135; 22 C.C.R. § 98010. REASONABLE ACCOMMODATIONS 17. What is a "reasonable accommodation'? Under Title I of the ADA, "reasonable accommodation" includes modifications or adjustments that enable employees with disabilities to perform the essential functions of their job. 42 U.S.C. § 12111(9). Some examples of possible accommodations include: * providing assistive technology; * a wheelchair accessible work site; * a sign language interpreter; * materials in alternative formats; * allowing an employee to take time off from work for doctor appointments or visits to a therapist; * allowing an employee a flexible work schedule so that the employee may work more hours when possible and fewer hours when necessary; * changing the job duties to eliminate non-essential functions; or * simply educating and changing co-worker attitudes. Finally, the company may offer you a job transfer. Transfers to other positions should be the last option to be considered. The new position must be equal to your current position in all respects such as pay, benefits, status, and opportunity for promotion. See Appendix to 29 C.F.R. § 1630.2(o). Your employer cannot offer you an inferior position unless that is the only one available. You cannot ask to be transferred to a superior position either. You also cannot require your employer to create an entirely new position in order to accommodate you. The ADA does not require employers to hire a set number of people with disabilities. It only requires that employers give qualified people with disabilities employment opportunities equal to those given employees without disabilities. 42 U.S.C. § 12101. You must be able to perform the essential functions of your job, either with or without reasonable accommodation to be protected under the ADA. 42 U.S.C. § 12111(8). Employers are not required to hire or keep a person who cannot perform the essential functions of a job with reasonable accommodations. 18. How do I ask for a reasonable accommodation? You need to tell your employer: * that you have a disability; * how your disability interferes with your ability to do your job functions; and * what accommodations you need in order to do your job functions. You may make your request orally or in writing. However, if your employer does not respond in a reasonable amount of time to an oral request, you should then make a written request. A sample reasonable accommodation letter is included at the end of this chapter. You should ask your employer to give you a response within a specific amount of time because you will need to take further action if your request is denied. 19. I need an assistive device to do my job. May I ask my employer to provide it? Yes. The ADA says that one of the ways your employer may accommodate you is by providing new equipment or modifying existing office equipment. 29 C.F.R. § 1630.2(o)(2)(ii). If you need a special device to be effective in your work, you may request it as an accommodation. Like other forms of accommodation, your request for equipment must be reasonable. The equipment you want should be consistent with the nature and the operations of the business you are working for, and it should be affordable in light of the resources of the business. 29 C.F.R. §§ 1630.2(p), 1630.15(d). 20. I know what equipment meets my work-related needs. Am I entitled to it? If you know exactly what you need, you should suggest it when discussing your needs with your employer. Finding the right accommodation should be a cooperative process in which you and your employer consider different options together. 29 C.F.R. § 1630.2(o)(3). Your employer should always consult you and must give primary consideration to your preference. Appendix to 28 C.F.R. 630 et seq. But it doesn't have to provide the precise item or brand you ask for. In fact, the ADA gives your employer discretion on how it chooses to help you. Of course, whatever it offers as accommodation must be effective. It should help you overcome the limitations caused by your disability so you can do your job. If the offered device works in the sense that you will be able to do your job to your employer's satisfaction, it need not do more. You can turn down the offered equipment, but you may face the prospect of being disqualified if you cannot perform without it. 29 C.F.R. § 1630.9(d). You can always offer to supply your own equipment. In that case, you can choose what it will be. You have the right to bring in your own equipment if it is compatible with the technology used at your office, does not interfere with the ability of other employees to do their job, and is not likely to need too much support. 29 C.F.R. § 1630.2(p)(2)(v) and Appendix to 29 C.F.R. § 1630.2(o) under Reasonable Accommodation. 21. I use my own computer for work. It is breaking down. Can I have my employer pay for its repair? The ADA does not cover this issue directly. However, your willingness to use your own computer clearly confers a benefit on your employer. You can make a strong argument that as an accommodation, your employer should at least provide the necessary support such as cost of maintenance and repair of your equipment. Once again, cost is a factor. If repairing your computer is too expensive, your employer may not be responsible for it. To assure that your employer is clear as to its obligations, you should write out the terms of your agreement with the employer. The agreement should include a statement reflecting the employer's duty to repair your technology. 22. In what areas of employment can I ask for an assistive device? The right to special equipment is available in all stages of a job - recruitment, employment, and benefits. 29 C.F.R. § 1630.2(o)(1). Naturally, each phase dictates different needs. Given the uncertainty of the hiring process, the employer is not likely to purchase costly technology in this phase. It can use other ways to meet your needs. Enjoyment of benefits and privileges of employment generally does not require equipment either. However, you need to be aware that the ADA makes this right available in case you can show a need in these circumstances. You are most likely to get special equipment for the core job duties you are hired to complete. The ADA calls these duties "essential functions of the job." On the other hand, there are often tasks that are marginal to the work you do. The ADA provisions do not apply to such tasks. Therefore, your employer is not required to furnish adaptive equipment so you can perform nonessential functions of your job. 23. What types of assistive devices can I ask for? The ADA doesn't rigidly limit the type of equipment you can ask for. Anything that helps you do your work may be a reasonable accommodation. It may be a simple tool such as a one-handed typewriter for a person who can only use one hand. It could also be a high-tech device such as specially manufactured communication equipment that helps a person with a speech disability communicate. To give you an idea of the range of equipment your employer may be expected to provide under the ADA, here is a list of the examples the Equal Employment Opportunities Commission (EEOC) has said are reasonable accommodations in its Technical Assistance Manual. This list is only illustrative. You may need something entirely different. * TDD's (Telecommunication Devices for the Deaf) make it possible for people with hearing and/or speech impairments to communicate over the telephone. * Telephone amplifiers are useful for people with hearing impairments. * Special software for standard computers and other equipment can enlarge print or convert print documents to spoken words for people with vision and/or reading disabilities. * Tactile markings on equipment in brailled or raised print are helpful to people with visual impairments. * Telephone headsets and adaptive light switches can be used by people with cerebral palsy or other manual disabilities. * Talking calculators can be used by people with visual or reading disabilities. * Speaker phones may be effective for people who are amputees or have other mobility impairments. * A timer with an indicator light allowed a medical technician who was deaf to perform laboratory tests - cost $27.00. * A clerk with limited use of her hands was provided a "lazy susan" file holder that enabled her to reach all materials needed for her job - cost $85.00. * A groundskeeper who had limited use of one arm was provided a detachable extension arm for a rake. This enabled him to grasp the handle on the extension with the impaired hand and control the rake with the functional arm - cost $20.00. * A desk layout was changed from the right to left side to enable a data entry operator who is visually impaired to perform her job - cost $0. * A telephone amplifier designed to work with a hearing aid allowed a plant worker to retain his job and avoid transfer to a lower paid job - cost $24.00. * A blind receptionist was provided a light probe, which allowed her to determine which lines on the switchboard were ringing, on hold, or in use. A light-probe gives an audible signal when held over an illuminated source - cost $50.00 to $100.00. * A person who had use of only one hand, working in a food service position could perform all tasks except opening cans. She was provided with a one-handed can opener - cost $35.00. * Purchase of a lightweight mop and a smaller broom enabled an employee with Down syndrome and congenital heart problems to do his job with minimal strain - cost under $40. * A truck driver had carpal tunnel syndrome, which limited his wrist movement and caused extreme discomfort in cold weather. A special wrist splint used with a glove designed for skin divers made it possible for him to drive even in extreme weather conditions - cost $55.00. * A phone headset allowed an insurance salesman with cerebral palsy to write while talking to clients - rental cost $6.00 per month. * A simple cardboard form, called a "jig," made it possible for a person with mental retardation to properly fold jeans as a stock clerk in a retail store - cost $0. 24. I have a mobility impairment and need to use a wheelchair. Can I ask my employer to make one available to me at work? Generally no. One important exception to the kind of equipment you can ask for is personal devices you use regularly for your daily activities. See EEOC's Technical Assistance Manual Section 3.10.6. If you use a wheelchair every day whether you are at work or not, your wheelchair is a personal item and your employer doesn't have to provide one so you can use it at the work place. But even in this case, there may be a situation where your employer would be responsible. For instance, let's assume you have sufficient upper body strength to use a manual wheelchair for your personal needs. But, the work environment, such as terrain or the texture and depth of the office carpeting, may prevent you from using your manual wheelchair. Your employer may have to provide a power wheelchair in such cases. Most items that your physician prescribes for your health and normal living activity are personal devices. They include eyeglasses, hearing aids, canes, crutches, medical equipment, prostheses, and orthotic appliances. Nonprescription items such as wheelchair lifts are also personal in nature and are your own responsibility. The line between personal items and work-related equipment is sometimes blurred. A hearing impaired person needs a telephone amplifier both for personal purposes and for talking to people on the phone at work. But as you can see from the list in the previous question, EEOC describes telephone amplifiers as reasonable accommodations. It would be safe to say that if you need equipment, a tool, some supplies, or an item of technology to carry out a specific work duty, your employer should provide it regardless of whether you may also need a similar device at home. 25. I have a visual impairment and cannot read print. Do I have a right to have the job application and other job information in an alternative format? You have a right to be treated equally as others in all stages and all aspects of employment. This means you have a right to have an opportunity to read and fill out the job application. You have a right to know about and have access to other job information given to all employees including information on employment policies, benefits, tax deductions, and so on. But the ADA does not obligate your employer to provide the information in the form you want. Your employer may choose among the options that are effective in your case. Audio recording of the materials is one of the most typical choices. If this is not adequate, you need to explain why it isn't and suggest the best way to meet your needs. For filling out the job application and other forms, your employer could offer you a personal assistant to read the information and complete the forms upon your instructions. 29 C.F.R. § 1630.2(o)(2)(ii). Given the sensitivity and personal nature of some information, you can insist that the assistant be a person who would normally be able to see this information anyhow, such as someone from the Human Resources Department. 26. I work full time. To accommodate me, my employer lets me work from home for part of the time. Can I ask for special equipment to help me with the work I do from home? In theory, yes. If you are permitted to work from home and need special equipment to do your job, your employer should provide it. Since you also work at the office, you presumably need the same supports there too. Providing the same accommodation in both locations may prove to be too expensive. The ADA does not force an employer to pay for an item or items that are too costly for that business. Your employer, by agreeing to alter your work schedule and allowing you to work from home, is not automatically bound to supply everything you need regardless of how much it costs. If the equipment is portable, you may have a right to only one set and may need to take it back and forth. 27. My company is making a big change to our current computer system. As a result, I can no longer use my special equipment. What can I do? You still have a right to reasonable accommodation. 29 C.F.R. § 1630.9(a). Your company should find other ways to enable you to do your work. There are many alternatives. It may be feasible to adjust the computer system so that you can continue working as before. The company may have to provide different equipment too. It may have to offer you support staff to assist you with your work. It could even modify your work responsibilities so you will no longer have to use a computer. You also cannot expect the company to stay with the current system if the change is made because of business necessity. Generally, courts will accept the judgment of a business that the technological change is, in fact, necessary. 28. What do I need to do to get the right equipment for work? The process begins with letting your employer know that you have a disability and need an assistive device to do your work. Then you should ask for a meeting to discuss the specifics of your needs. If you or your employer know enough about assistive technology, you can agree upon what meets your needs. You should document the contents of your discussion and the terms of your agreement accurately. If you don't know enough or cannot agree on the same device, your employer should seek an assessment by an evaluator who can recommend an effective option. See Appendix to 29 C.F.R. § 1630.9 under Process of Determining the Appropriate Reasonable Accommodation. Your employer is not required to purchase the most expensive or the most recently developed equipment. In fact, it doesn't have to purchase anything if your needs can be met some other way. If there is no reasonable choice because devices are all too costly for example, you should be given the chance to provide it yourself. Moreover, your employer cannot rely on the cost of an item as a reason to do nothing. When one option is ruled out, the employer should consider other reasonable alternatives. 29. I have a written evaluation by the Department of Rehabilitation which states the assistive devices I need. How can I use this evaluation? Since such evaluations are fairly comprehensive, you can use them for different purposes. You can use them as proof of your disability and your functional limitations that affect the performance of your job. You can also use them as evidence of your need for assistive technology and the specific items you need. But the ADA does not require your employer to accept some other agency's assessment or conclusions. Your employer is free to make its own judgments based on the nature and resources of its business. There may be a practical reason for accepting the Department of Rehabilitation's (DR) evaluation, however. Assessments done by DR are part of a rehabilitation plan in which DR is required to assure the achievement of its goals. This generally means that DR should financially help in the purchase of the assistive devices you have identified in the plan. If your employer agrees with DR's assessment results, it may be able to negotiate with DR to share the cost of the technology you need. 30. Can my employer require me to obtain a letter from my doctor stating what kind of equipment I need? No. In most instances, a physician does not have adequate knowledge to recommend assistive technology. There are professional evaluators who assess technology needs of persons with disabilities. Depending on your disability and the place you live, you can find them in a variety of places. Some work in rehabilitation units of hospitals. Others can be found in disability organizations. There are also private companies that do technology evaluations. A counselor at DR, a specialist at an independent living center, or a case manager at a regional center should be able to refer you to one. See Chapter 17 of this manual for a list of resources including technology centers. Your employer should obtain an assessment that would reveal the equipment you need. Your employer is only entitled to know the physical and mental limitation you experience because of your disability. This may require some type of a statement from your doctor. However, your doctor need not and should not divulge all of your medical records and information. She should only state that you have a disability or medical condition and describe, with some specificity, the functional limitations that affect your ability to do your job. If you can provide this information through other reliable documentation, there is no need for your doctor to be involved at all. 31. Must my employer provide any accommodation that I request? No. Employers are required to provide "reasonable accommodations." Employers must make reasonable efforts to determine the appropriate accommodation for you by listening to you and seriously considering your needs and preference. The employer may however, select a less expensive alternative as long as it is appropriate. 32. What is an "undue hardship"? Employers are not required to provide an accommodation if it would be an "undue hardship" to the employer. 42 U.S.C. § 12111(10). Determinations of "undue hardship" are based on a balancing of factors including the size of the employer, the number of employees, and the cost of the accommodation requested. 42 U.S.C. § 12111(10)(B). An accommodation that could be provided by a larger employer with little or no hardship might be a substantial hardship for a smaller employer. For example, for an employer with more than one receptionist, it might present no hardship to allow one receptionist to take a longer lunch or arrive later. For a small employer with only one receptionist, the same request could create a more substantial hardship. A court might find in the second case, that allowing the receptionist to arrive late or take a longer lunch on a regular basis would create an "undue hardship." The court would probably find that being at work and able to answer phones from 9:00 a.m. to 5:00 p.m. is an essential function of the job. It is impossible to predict with certainty how a court would rule in a case like this or, for that matter, how flexible or creative your employer will be in working with you to devise a reasonable accommodation. However, it will be to your advantage in a situation where you think your disability is impairing your work performance, inform your employer of your disability and try to negotiate a "reasonable accommodation." Once you have been fired, it is too late to ask for a reasonable accommodation or claim that you were fired because of your disability unless you can show that your employer knew of your disability. INFORMATION ON FILING EMPLOYMENT DISCRIMINATION COMPLAINTS 33. Can the laws help me if I think my employer is discriminating against me because I have a disability? Yes. The laws discussed in this chapter prohibit employment discrimination and allow you to file complaints and sometimes lawsuits in court. In most situations you must file a complaint before you can go to court. If you file a complaint or a lawsuit, you will have to follow through by appearing at hearings or court proceedings, writing statements, and being interviewed by your employer's representatives or lawyers. 34. How do I know whether to file a state or a federal complaint? You must first figure out which law covers you, your employer, and your complaint. You may find that both state and federal law covers you and that you may file a complaint with a state or federal agency. You should talk to an advocate or an attorney to help you figure out which laws cover you and where to file your complaint. Sometimes, federal and state agencies have agreements about who will handle your administrative complaint if you can file with both. For example, often you can file a complaint with both the Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunities Commission (EEOC). The agencies should let you know who will investigate your complaint. If you file a complaint with the EEOC, your complaint will automatically be referred to the DFEH. If you file your complaint with the DFEH, however, you must request that the DFEH forward a copy of your complaint to the EEOC if you want your complaint filed at both agencies. 35. Where and when can I file an ADA complaint? For violations of Title I of the ADA (private employers), you may file a complaint with the EEOC. Their telephone number is (800) 669-4000. A complaint must be filed with the EEOC within 300 days of the discrimination. If the EEOC issues a right-to-sue letter (a letter saying you may file in court), you have 90 days to sue in U.S. District Court. You must receive a right-to-sue letter from the EEOC before filing an action under Title I in court. For violations of Title II of the ADA (public employers), the EEOC has a work-sharing agreement with the Department of Justice (DOJ). The DOJ is primarily responsible for investigating employment discrimination complaints against most employers covered by Title II. The telephone number of the DOJ is (800) 514-0301. Complaints must be filed with the DOJ within 180 days of the discrimination. Courts have held that it is not necessary to obtain a right-to-sue letter from the DOJ before filing a Title II action in court. Such lawsuits should be filed within one year of the discrimination. In California, you may also file an ADA complaint with the DFEH. The EEOC or the DFEH will let you know which agency will investigate your complaint. 36. I filed a complaint with the DFEH (or the EEOC). What can I expect to happen? How long will it take for the agency to help me? DFEH Once you file a complaint with the DFEH, a consultant decides whether the DFEH will accept the complaint or decline to accept it. If a complaint is accepted, DFEH will write a formal complaint and send it to you for signature within one week. When you have signed the complaint and returned it to DFEH, they will serve it on your employer. Your employer has 21 days to respond to the complaint. When the response is received by DFEH, the consultant decides if there was cause for the complaint, that is, if your employer discriminated against you. DFEH makes this determination under both the state law which is the Fair Employment and Housing Act (FEHA) as well as the ADA. If DFEH finds discrimination, it will ask your employer if it is interested in settling the matter through the process of conciliation. If the employer does not want to settle, DFEH will file an administrative complaint against the employer under the FEHA. The administrative complaint is called an "accusation", and is filed with the Fair Employment and Housing Commission (FEHC). The FEHC will hold a hearing and receive evidence from the DFEH and the employer, and make a decision on your complaint. Once the administrative process begins, you may no longer file a formal complaint in court. If an accusation is not issued, DFEH will notify you that you may request a right-to-sue notice and sue in court within one year of the date the right-to-sue letter is mailed. If your employer looses at the administrative hearing, the FEHC can require your employer to compensate you for back and future pay, pain and suffering, and even emotional distress. When the DFEH finds discrimination under the ADA, it will refer the case to the EEOC. EEOC After you file a complaint with the EEOC, the employer charged with violating the ADA should receive written notification of the charge within 10 days. The EEOC will investigate charges of discrimination. If the EEOC believes that the employer has discriminated against you, it will try to resolve the charge through conciliation and obtain full relief for you. If conciliation fails, the EEOC will file suit or issue a "right to sue" letter to you so that you may file an action in court. 37. What will happen if my complaint is found to be true? Under the ADA you may get injunctive relief (an order to perform or not perform an act). That includes, for example, reinstatement, making a building accessible, hiring an employee to assist you, and back pay. You may also get compensatory damages (payment to compensate you) for any losses you may have experienced and for pain and suffering. You may also be able to get punitive damages (money to punish), depending on whether your employer's discrimination was intentional. 38. Does it make any difference whether I am in a union or not? No. If you are covered by a union, you may be entitled to representation by your union. Additionally, your union contract may also be violated by your employer's actions, violate laws other than the ADA. If you are a union employee, you should contact your union for help, in addition to filing complaints with the EEOC or DFEH. 39. What about mediation or conciliation? Is it a faster way to resolve my concerns? The EEOC and DFEH complaint processes both include an attempt at "conciliation." Through the conciliation process, the EEOC or DFEH consultant will attempt to reach a settlement agreement between you and the employer. If the conciliation fails and no agreement is reached, you may still file a lawsuit. Conciliation may be much faster than litigation, which is often a very long process. 40. I work for a federal agency. Where and when do I file my Section 501 complaint and when can I file a complaint in court? Under Section 501, governing federal departments and agencies, you must first consult with an internal EEO (Equal Employment Opportunity) counselor within 45 days of the incident of discrimination and try to informally correct the discrimination. The 45 day period may be extended when you do not know of this time limitation or are prevented from contacting the EEO counselor by circumstances beyond your control. 29 C.F.R. § 1614.105. If it cannot be corrected within 30 days, the EEO counselor will give you written notice. You may extend this period by an additional 60 days. If your agency has a dispute resolution procedure and you agree to use it instead of contacting the EEO counselor, you have 90 days to resolve the dispute. If you want to continue your complaint, you must file a written complaint with the agency that discriminated against you within 15 days of receiving the notice from the EEO counselor. 29 C.F.R. § 1614.106. The agency must conduct a fair investigation of your complaint within 180 days from the date you filed your complaint unless you and the agency agree in writing to a longer period. Upon expiration of this period, your agency must inform you that the investigation is completed, provide you with a copy of the investigation, notify you of your right to request a hearing before an administrative judge within 30 days of receiving the investigation file or receive the final agency decision. 29 C.F.R. § 1614.108. If you request a hearing, you have a right to "discovery" which means you can ask for relevant information from the agency relating to the facts of your complaint. The administrative judge will limit the appearance of witnesses to those with direct knowledge relating to the complaint and will regulate the proceeding. At the hearing, you can present your evidence and question the agency officials. The administrative judge will issue a decision regarding your complaint within 180 days of the date you requested the hearing. Within 60 days of the receipt of the hearing decision, your agency may reject or modify it and issue its own final decision. If your agency does not reject or modify the hearing decision within 60 days, then the hearing decision will become the agency's final decision. If you disagree with the agency's final decision, you may appeal to the EEOC within 30 days of receiving notice of the final decision on the matter. You must file a complaint with EEOC before you can file in court. The EEOC will review the file on the complaint, may request additional information from either party and issue a decision. You may request a reconsideration of the EEOC decision within 30 days of receipt of the decision or within 20 days of your agency's request for reconsideration. 29 C.F.R. § 1614.407. A private court action may be filed only: * within 90 days of receipt of the final decision if no appeal is filed; * after 180 days from the date you filed your complaint if an appeal is not filed and a final decision is not issued; * within 90 days of receipt of the EEOC's final decision on an appeal; or * after 180 days from the date of filing an appeal with the EEOC if there has been no final decision by the EEOC. 29 C.F.R. § 1614.408. 41. I work for an employer who has a contract with the federal government. Where and when do I file my Section 503 complaint? Under Section 503, covering federal contractors, you must file your Section 503 complaint at a local office of the Office of Federal Contracts Compliance Programs (OFCCP) at the Department of Labor within 300 days of the discriminatory event(s). 41 C.F.R. § 60-741.61(b). Courts have said that you cannot file a private lawsuit under Section 503. This administrative complaint is your only remedy. See attached list of local OFCCP offices at the end of this chapter. 42. I work for an employer who receives federal funds. Where and when do I file my Section 504 complaint? Under Section 504, you can both file an administrative complaint and sue in court for the discrimination you have experienced. The time periods for these actions begin from the date of the discrimination and run simultaneously. To file an administrative complaint against an employer who receives federal funds, you should file with the Office for Civil Rights at the federal agency which provides funding to the employer. For example, for complaints of discrimination as an elementary school teacher, file with the Department of Education's Office for Civil Rights. An administrative complaint must be filed within 180 days of the discriminatory conduct. If you also choose to file a lawsuit in court, you have one year from the date of the discrimination to file your suit in a federal district court. It is not necessary to first file an administrative complaint under Section 504 in order to file a lawsuit against a federally funded employer. However, it is necessary to first file an administrative complaint under Section 501 if the complaint is against the federal government itself. 43. Where and when can I file my FEHA and Section 11135 complaint? Under the FEHA you may file with the DFEH within one year from the discrimination. If the DFEH issues a "right to sue" letter, you may then file a private lawsuit in state court. If you think you may have an ADA complaint in addition to the FEHA complaint, you should file with the DFEH or the EEOC within 300 days, since the time line for filing an ADA complaint is 300 days. Under Section 11135, you must file a complaint within one year from the date of the discriminatory action with the state agency that administers the program involved. If you are not aware of the discriminatory action until more than one year from the event, you have 90 days from the date you discover the discriminatory action. 22 C.C.R. § 98344. The state agency may stop funding to the program and may forward the complaint to the DFEH. The administering state agency has authority to investigate and resolve discrimination claims. In addition, you may bring a court action to force an administering state agency to comply with the requirement that it investigate and resolve complaints. Otherwise, individuals do not have a right to file an action in court under Section 11135. 22 C.C.R. §§ 98002, 98003; Arriaga v. Loma Linda University, 10 Cal. App. 4th 1556, 13 Cal. Rptr. 2d 619 (1993). Endnote In June, 1999, the United States Supreme Court issued a series of decisions that affect this part of the definition of "qualified individual with a disability": Sutton v. United Airlines, Murphy v. United Parcel Services, and Albertson's, Inc. v. Kirkingburg. These three cases limit who is protected by the ADA. In these decisions, the Supreme Court held that the effects of any "mitigating measures" taken by the individual to reduce the impact of the disability must be considered when determining whether a person has a disability under the ADA. "Mitigating measures" are things used to control or reduce the effects of an individual's disability. Some examples of mitigating measures include the use of medication, therapy, or assistive devices (like eye glasses, hearing aids or prosthetic limbs). In Sutton, the court held that two individuals with severe vision limitations were not disabled. The court reasoned that because their vision was 20/20 or better with eyeglasses, they were not substantially limited in the major life activity of seeing. In Kirkingburg, the court found a truck driver with 20/200 vision in his left eye was not disabled. The Murphy case concerned a man with high blood pressure who used medication to lower his blood pressure. The court held that once Mr. Murphy took his medication, he was no longer a person with a disability under the ADA because his major life activities were no longer restricted. In all these cases, the Supreme Court ruled that in deciding whether an individual is disabled, you should look at the person's actual circumstances, with or without the use of mitigating measures. Thus, for example, if the person is taking medication, wearing eyeglasses, or has a prosthetic device, you must consider that in deciding whether he or she is a person with a disability. On the other hand, if the person was not using any mitigating measures at the time of the alleged discrimination, then whether he or she is disabled should be decided without considering the use of the mitigating measure. As a result of these decisions, many people will have a more difficult time showing a court that they meet the definition of "qualified individual with a disability" and are protected against discrimination by the ADA. The Supreme Court did not say in these cases, however, that using a mitigating measure automatically means that you are not a person with a disability. It only means that you have to look more carefully to see if the definition of disability is met. Even if you use mitigating measures, you still may be a "qualified individual with a disability." If you can show that the side effects of a medication or other mitigating measure themselves result in a substantial limitation on your major life activities, you may still be "disabled." The courts also recognize that sometimes mitigating measures do not fully control the effect of the disability. For example, even with medication, a person with a bipolar disorder may still have symptoms on occasion, resulting in periods of substantial limitation. In some situations, you may also argue that you have a disability when there are legitimate obstacles to your use of the mitigating measure. For example, although therapy may be a mitigating measure, we believe the court should not consider it in a circumstance in which a person with a mental health condition is prevented from using the mitigating measure because his or her employer refuses to provide a flexible work schedule to attend therapy as a reasonable accommodation. In addition, you could focus on other parts of the ADA definition of disability by showing that you were discriminated against because you have a record of having an impairment that substantially limits one or more major life activities, or because you are regarded as being substantially limited, even though you are not. ATTACHMENTS TO CHAPTER 6 SAMPLE REASONABLE ACCOMMODATION REQUEST [Date] Dear Employer: I am a disabled employee. My disability is a physical disability that causes substantial limitations in my ability to work in that I am unable to [You should describe here the limitations you are experiencing in your job because of your disability. Example: reach high shelves or use current office building due to physical inaccessibility.]. In order to do the essential functions of my job I need a reasonable accommodation. The accommodation I need is: [You should list here the accommodations you need and be as specific as possible. Remember that the accommodations must enable you to do the essential functions of your job; if they do not, then it is not a reasonable accommodation. Example: using equipment within your reach and adding access features such as a ramp to the building.]. Please let me know in 10 days whether you will grant my accommodation request so that I may pursue other action as necessary. Sincerely, SAMPLE DOCTOR'S LETTER SUPPORTING A NEED FOR AN ACCOMMODATION [Date] Dear Employer: [Your name] is my patient and has a physical disability that causes functional limitations. [Your name] has the following functional limitations: [Your doctor should list your limitations here that apply to your ability to work. Example: has limited reach or must use a wheelchair to get around.]. [Your name] may be accommodated for his/her disability in the following way: [Your doctor should list the accommodations you need here. Example: by using accessible buildings and equipment which he can reach and operate.]. Sincerely, Your Doctor OFCCP OFFICES IN CALIFORNIA Los Angeles District Office Mr. Roscoe Ballard District Director for OFCCP/ESA U.S. Department of Labor 3660 Wilshire Blvd., Suite 602 Los Angeles, CA 90010 213-252-7542 Los Angeles District Office (at Van Nuys) Mr. Roscoe Ballard District Director for OFCCP/ESA U.S. Department of Labor 14546 Hamlin Street, Suite 220 Van Nuys, CA 91411 818-904-6285 Oakland District Office Mr. Edgar A. Collins District Director for OFCCP/ESA U.S. Department of Labor 1301 Clay Street, Suite 1080N Oakland, CA 94612 510-273-4055 San Diego District Office Mr. Albert Padilla District Director for OFCCP/ESA U.S. Department of Labor 5675 Ruffin Road, Suite 320 San Diego, CA 92123 619-557-6489 San Francisco District Office Ms. Myra Stratton District Director for OFCCP/ESA U.S. Department of Labor 211 Main Street, Suite 328 San Francisco, CA 94105 415-744-6630 San Jose District Office Mr. Arthur C. Oroz District Director for OFCCP/ESA U.S. Department of Labor 60 South Market, Suite 420 San Jose, CA 95113 408-291-7384 Santa Ana Area Office Mr. Frank J. Galaz District Director for OFCCP/ESA U.S. Department of Labor 34 Civic Center Plaza, Room 712 P.O. Box 12800 Santa Ana, CA 92712 714-836-2784 ---------- Chapter 7 VOCATIONAL REHABILITATION (INCLUDING LOAN PROGRAMS) Table of Contents Question GENERAL PROVISIONS 1. Who is eligible for rehabilitation services? 7-2 2. What does "benefit in terms of an employment outcome" mean? 7-3 3. If the state has funding limitations, who will be eligible for services? 7-3 4. What is the Client Assistance Program? 7-4 VOCATIONAL REHABILITATION SERVICES 5. What are vocational rehabilitation services? 7-4 6. How do I become a Department of Rehabilitation (DR) client? 7-6 7. What is an Individualized Plan for Employment (IPE)? 7-6 8. What must my Individualized Plan for Employment (IPE) contain? 7-7 9. What are community rehabilitation services? 7-8 10. How does the Department of Rehabilitation (DR) determine and document the services I need? 7-8 11. What type of assistive technology may be included in my Individualized Plan for Employment (IPE)? 7-10 12. What type of assistive technology does Department of Rehabilitation (DR) provide as vocational rehabilitation services? 7-10 13. What is rehabilitation technology? 7-11 14. What is an assistive technology device? 7-11 15. What is an assistive technology service? 7-11 16. What are vocational and training services? 7-11 17. What are physical and mental restoration services? What kind of devices are available under this category? 7-12 18. What type of occupational tools and equipment can I get through Department of Rehabilitation (DR)? 7-12 19. Does the Department of Rehabilitation (DR) have to help me communicate by providing necessary assistive technology? 7-13 20. What are transportation services? What kind of devices can I get under this service? 7-13 21. Am I eligible for any other devices? 7-14 22. Do I have to pay for any vocational rehabilitation services? 7-14 23. Are there times when Department of Rehabilitation (DR) can expect me to get services or equipment from another agency? 7-15 24. When may Department of Rehabilitation (DR) terminate its services? 7-15 25. What is supported employment? 7-16 26. Who is eligible for supported employment? 7-16 27. How long can Department of Rehabilitation (DR) provide supported employment services? 7-17 28. What are extended services? 7-17 29. What can I do if I disagree with a Department of Rehabilitation (DR) decision? 7-17 30. How can I appeal an internal administrative review decision? 7-18 31. What do I need to know about mediation? 7-19 32. What is a fair hearing and what do I need to know about it? 7-19 33. What happens to my services during the appeal process? 7-21 34. Is there an appeal from the final Rehabilitation Appeals Board (RAB) decision? 7-21 INDEPENDENT LIVING SERVICES 35. What are independent living services? 7-21 36. Who is eligible for independent living services? 7-21 37. What assistive technology is available through independent living services? 7-22 38. What is the appeal process if I don't like a decision regarding independent living services? 7-22 LOAN GUARANTEE PROGRAMS 39. What are Loan Guarantee Programs? 7-22 40. Who are eligible lenders for Department of Rehabilitation (DR) loan guarantees? 7-23 41. What are the general eligibility requirements for loan guarantees? 7-23 42. Who is eligible for transportation loan guarantees? 7-23 43. Who is eligible for assistive technology loan guarantees? 7-24 44. What is the approval process for loan guarantees through Department of Rehabilitation (DR)? 7-24 45. What is the appeal process for the Loan Guarantee Programs? 7-25 46. When can Department of Rehabilitation (DR) terminate a loan guarantee? 7-26 Chapter 7 VOCATIONAL REHABILITATION (INCLUDING LOAN PROGRAMS) The federal Rehabilitation Act (Act) provides for vocational and independent living services to people with disabilities. States that choose to participate in the program receive federal money to provide services. In exchange, the states must follow the Act's federal mandate. The California agency responsible for providing vocational rehabilitation services is the Department of Rehabilitation (DR). Under state law, DR also administers the loan guarantee program. Assistive technology is a vocational rehabilitation service. Eligible people can get the tools they need from DR to achieve their employment goals. In this chapter, we will explain the Act's eligibility criteria for specific categories of service that provide for assistive technology. In 1998, Congress amended the Rehabilitation Act. The 1998 amendments combined two assistive technology provisions into one. Rehabilitation technology now includes: telecommunications aids and devices; sensory aids and devices; and other technological aids and devices. Allowing people who get DR services to make informed choices is now an important part of the program. DR must help eligible people make informed choices in selecting assessments, employment outcomes, services, service providers, how services will be provided, and where the services will be provided. Another important amendment to the Act is the new requirement that the state must provide a mediation process for resolving disputes. Mediation will be voluntary and will not affect the right to an impartial hearing. Because of the amendments to the Act, there will be new federal regulations to implement the changes in the law. In addition, the state changed its statutes and regulations to bring them into compliance with federal law. You should consult an attorney or contact PAI regarding the latest legal developments. GENERAL PROVISIONS 1. Who is eligible for rehabilitation services? You are eligible for rehabilitation services under the Act if: * You have a physical or mental disability which constitutes or results in a substantial impediment to employment; * You can benefit in terms of an employment outcome from vocational rehabilitation services. 29 U.S.C. § 705(20)(A), Cal. Welf. & Inst. § 19151; and * You require vocational rehabilitation services to prepare, secure, retain or regain employment. 29 U.S.C. § 722 (a)(1)(B). You are considered an "individual with a significant disability" (which makes you eligible for independent living services and first priority for services if the state does not have enough money to serve all eligible individuals) if: * you have a severe physical or mental disability which seriously limits one or more functional capacities, such as mobility, communication, self-care, self-direction, interpersonal skills, work tolerance, or work skills; * your vocational rehabilitation can be expected to require multiple vocational rehabilitation services over an extended period of time; and * you have one or more physical or mental disabilities resulting from amputation, arthritis, autism, blindness, burn injury, cancer, cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, hemiplegia, hemophilia, respiratory or pulmonary dysfunction, mental retardation, mental illness, multiple sclerosis, muscular dystrophy, musculo-skeletal disorders, neurological disorders (including stroke and epilepsy), paraplegia, quadriplegia and other spinal cord conditions, sickle-cell anemia, specific learning disabilities, end-stage renal disease; or * you have another disability or combination of disabilities, determined on the basis of an assessment for determining eligibility and vocational rehabilitation needs, which cause comparable substantial functional limitations. 29 U.S.C. § 705(21)(A). DR must use the reports and conclusions reached by other agencies, particularly education officials, in establishing eligibility for DR services. 29 U.S.C. § 722(3)(A). If you receive SSDI or SSI, you are considered to be a person with significant disabilities; you are presumed eligible for DR services provided you intend to achieve an employment outcome and you are able to benefit from vocational rehabilitation services in terms of an employment outcome. 29 U.S.C. § 722 (a)(3)(i). 2. What does "benefit in terms of an employment outcome" mean? Employment outcome means entering or keeping full-time or, if appropriate, part-time competitive employment in the integrated labor market. This includes supported employment, self-employment, telecommuting, or business ownership. 29 U.S.C. § 705(11). The law presumes that you can "benefit in terms of an employment outcome" from vocational rehabilitation services. If DR disagrees, it must show "by clear and convincing evidence" that you cannot "benefit in terms of an employment outcome" due to the severity of your disability. 29 U.S.C. §§ 722(2)(A), 722(3)(A). DR must explore your abilities, capabilities and capacities to perform in work situations through the use of trial work experiences with appropriate supports. 29 U.S.C. § 722(2)(B). 3. If the state has funding limitations, who will be eligible for services? Federal law requires that people with the most significant disabilities must be served before other individuals with less significant disabilities any time the state cannot provide services to all eligible persons because of a lack of funding. See question 1 for the definition of an "individual with a significant disability." 29 U.S.C. § 721(a)(5). 4. What is the Client Assistance Program (CAP)? The Client Assistance Program (CAP) is available to inform and advise all clients and applicants of all available benefits under DR and under the Americans with Disabilities Act (ADA), especially those who have been traditionally underserved by DR programs. Upon request, CAP can assist and advocate for clients or applicants: * regarding programs that provide vocational rehabilitation services; * regarding other services directly related to employment; and * in pursuing legal, administrative, or other remedies to protect the rights of individuals and access to services. 29 U.S.C. § 732. All programs that provide services under the Act, including ILC services, must advise you and, as appropriate, your authorized representative or family, of the availability and purposes of CAP and how to ask for help. 29 U.S.C. § 717. In California, CAP services are generally provided through independent living centers. See Chapter 17 - Resource Guide for a listing of independent living centers in California. VOCATIONAL REHABILITATION SERVICES 5. What are vocational rehabilitation services? Vocational rehabilitation services include any service described in an Individualized Plan for Employment (IPE) that you need to help you prepare for, secure, keep or regain an employment outcome that is consistent with your strengths, resources, priorities, concerns, abilities, capabilities, interests and informed choice. Services can include: * Assessment to determine eligibility and vocational rehabilitation needs including (if appropriate) an assessment by personnel skilled in rehabilitation technology; * Counseling and guidance; * Referral and other services to secure needed services from other agencies if the services are not available through DR; * Job-related services, including job search and placement, job retention services, follow-up services, and follow-along services; * Vocational and other training services, including the provision of personal and vocational adjustment services, books, tools, and other training materials (DR will not pay for training services at an institution of higher education unless you and DR have tried to secure some grant assistance from other sources to pay for it); * Diagnosis and treatment of physical and mental disabilities, including prosthetic and orthotic devices, eyeglasses and visual services, and special services (including transplant and dialysis), artificial kidneys, and supplies necessary for the treatment of end-stage renal disease if financial support is not readily available from a source other than DR such as your health insurance or comparable services and benefits; * Additional costs of participating in an assessment to determine eligibility and vocational rehabilitation needs, or while receiving services under an IPE; * Transportation; * On-the-job or other related personal assistance services while you are receiving other services; * Interpreter services if you are deaf or hard of hearing, and reader services if you are blind; * Rehabilitation teaching services, and orientation and mobility services if you are blind; * Occupational licenses, tools, equipment, and initial stocks and supplies; * Technical assistance and other consultation services if you are pursuing self-employment, telecommuting, or establishing a small business as an employment outcome; * Rehabilitation technology, including telecommunications, sensory, and other technological aids and devices; * Transition services for students with disabilities; * Supported employment services; * Services that your family needs to help you achieve an employment outcome; and * Specific post-employment services necessary to assist you to retain, regain, or advance in employment. 29 U.S.C. § 723. 6. How do I become a Department of Rehabilitation (DR) client? To apply for DR services, you complete and sign a request for services form or otherwise request services; provide information necessary to initiate an assessment to determine eligibility and priority for services; and be available to complete the assessment process. 34 C.F.R. 361.41 (b)(2). This can be done at a DR district or branch office. District and branch offices are located throughout the state. They are listed in telephone directories under the State of California, Department of Rehabilitation. DR must make a determination about your eligibility within 60 days unless: * there are exceptional and unforeseen circumstances beyond its control and you agree to a specific extension of time; or * DR is determining eligibility through the use of trial work experiences. 29 U.S.C. § 722(a)(6)(A). 7. What is an Individualized Plan for Employment (IPE)? An IPE is a written document prepared on forms provided by DR. Your IPE sets out your employment outcome, the specific vocational rehabilitation services DR will provide, and how DR will get these services for you. The IPE must be developed and implemented in a way that gives you the opportunity to exercise informed choice. After your agreement and DR's approval, both you and DR must sign the IPE. DR must give you or your representative a copy of the IPE. If appropriate, it must be in your native language or mode of communication, or that of your representative. You and DR must review your IPE at least once a year. You and DR must amend your IPE if there are substantive changes in your employment outcome, the vocational rehabilitation services provided, or the service providers. The changes will not take effect until both you and DR agree to and sign the amended IPE. 8. What must my Individualized Plan for Employment (IPE) contain? An IPE must contain: * A description of your proposed employment outcome which, to the maximum extent appropriate, will result in employment in an integrated setting; * A description of the specific vocational rehabilitation services that you need to reach your employment outcome, including, as appropriate, assistive technology devices, assistive technology services, and personal assistance services provided in the most integrated setting appropriate for the service involved; * Timelines for achieving your employment outcome and for beginning the services; * A description of the vocational rehabilitation services provider and how the provider will deliver services; * A description of how DR will evaluate your progress toward your employment outcome; * Any other terms and conditions of the IPE, including, as appropriate, DR's responsibilities and your responsibilities - such as which costs you will pay and your responsibility to apply for and secure comparable benefits; and * A statement of any expected need for post-employment services. If you have a significant disability and supported employment is an appropriate employment outcome, the IPE must have information on the extended services you need and the source of those extended services. If DR cannot identify the source of the extended services during development of the IPE, there should be a description of how and when the source will become available. 29 U.S.C. § 722(3). 9. What are community rehabilitation services? Community rehabilitation services help you get the vocational rehabilitation services you need to have the best chance at gaining employment or career advancement. 29 U.S.C. § 705(5), Cal. Welf. & Inst. § 19152. Services provided under this program may include assistive technology - such as rehabilitation technology. Services could also include testing, fitting, or training in the use of prosthetic and orthotic devices. [See also Cal. Welf. & Inst. § 19152(2)]. 10. How does the Department of Rehabilitation (DR) determine and document the services I need? As soon as DR says you are eligible for vocational rehabilitation services, DR must perform a comprehensive assessment (if needed) of your unique strengths, resources, priorities, interests, and needs. The assessment should consider whether you need supported employment. During this assessment, DR gathers information necessary to determine your rehabilitation needs and develops an IPE. To the extent possible, DR must rely on information that you and your family provide or other existing information. It may include assessment in real work situations. 29 U.S.C. § 705(2). Comprehensive assessment activities may include: * Assessment of your personality, interests, interpersonal skills, intelligence and related functional capacities; * Assessment of your educational achievements, work experience, vocational aptitudes, personal and social adjustments, and employment opportunities; * Assessment of the medical, psychiatric, psychological, vocational, educational, cultural, social, recreational, and environmental factors that affect your employment and rehabilitation needs; * Evaluation of your work behavior and the services you need to acquire occupational skills, develop work attitudes, work habits, and work tolerance; * Evaluation of social and behavioral patterns necessary for successful job performance; * Evaluation of your work in real job situations to assess and develop your work skills; * Referral for rehabilitation technology services necessary to assess and develop your ability to perform in a work environment; and * Exploration of your abilities, capabilities, and capacity to perform in work situations (which must be assessed during trial work experiences) including experiences in which you have appropriate supports and training. If DR determines that you are eligible for vocational rehabilitation services, DR must provide information on your options for developing an IPE. This information must be provided in writing and, if necessary, in another appropriate mode of communication. It must include: * How to get help from a qualified vocational rehabilitation counselor in developing all or part of your IPE; * The availability of technical assistance in developing all or part of your IPE; * A description of everything that must be included in an IPE; * An explanation of the financial commitments DR must make to help you reach the work outcome in your IPE; * The availability of help in completing DR forms required to develop your IPE; * A description of the rights and remedies available to you; * A description of the availability of CAP, and information about how to contact CAP; and * Any other information you request or DR thinks is necessary. 29 U.S.C. § 722(b)(1). 11. What type of assistive technology may be included in my Individualized Plan for Employment (IPE)? If you need technology to achieve your employment goals, your IPE must include: * The specific rehabilitation technology services you need; * How the technology will be provided to you in the most integrated setting; and * Who will provide the technology and any services related to its acquisition and use. 12. What type of assistive technology does Department of Rehabilitation (DR) provide as vocational rehabilitation services? Assistive technology items and services are available when they are necessary to help you become employable. You may get these items and services under one of the following categories: * assessment to determine the technology you need; * rehabilitation technology services; * vocational and training services; * physical and mental restoration services; * occupational equipment and tools; * alternative modes of communication; * transportation services; and * other goods and devices you need, including architectural barrier removal. 13. What is rehabilitation technology? The Act defines rehabilitation technology as "the use of technology, engineering, or scientific principles to meet the needs of and address the barriers faced by people with disabilities in areas which include education, rehabilitation, employment, transportation, independent living, and recreation. Rehabilitation technology is divided into three categories: Rehabilitation Engineering, Assistive Technology Devices, and Assistive Technology Services." 29 U.S.C. § 705(30). State regulations limit rehabilitation engineering services to the time a qualified person spends evaluating you and designing, fabricating, or modifying assistive devices. 9 C.C.R. § 7024.4. 14. What is an assistive technology device? An assistive technology device is any item, piece of equipment, or product system that is used to increase, maintain, or improve your functional capabilities. The item may be purchased from a dealer or store, changed or customized especially for you. 15. What is an assistive technology service? An assistive technology service is any service that directly helps you select, acquire, or use an assistive technology device. See Chapter 1 for an overview of the Assistive Technology Act of 1998 and a complete definition of assistive technology. 16. What are vocational and training services? Vocational and training services include: * vocational, prevocational, or personal adjustment training that contribute to your rehabilitation; * books, supplies, and other training materials you require; * training you to use artificial limbs, hearing aids, and other appliances and devices; and * any other training you need to meet your rehabilitation needs. 9 C.C.R. § 7028.5. 17. What are physical and mental restoration services? What kind of devices are available under this category? Physical and mental restoration services are services necessary to correct and substantially modify, within a reasonable period of time, a physical or mental condition that is stable or slowly progressive. They include a wide range of medical services. The type of assistive devices and services available under this category are: * prosthetic, orthotic, or other assistive devices essential to obtaining or retaining employment; * eyeglasses and visual services; * physical therapy; * occupational therapy; * speech or hearing therapy; and * special services to treat individuals suffering from end-stage renal disease, including transplants, dialysis, artificial kidneys, and supplies. 9 C.C.R. § 7020. 18. What type of occupational tools and equipment can I get through Department of Rehabilitation (DR)? DR defines tools as items customarily required for a worker to perform efficiently on the job. 9 C.C.R. § 7028.4. DR may provide occupational tools, licenses, and equipment when you need these items in the following circumstances: * To achieve "suitable employment"; * For training programs, or to enable you to become suitably employed (limited to those items that trainees or employees normally have to provide and special tools you need because of your disability); and, * To participate in an occupation or when you need such items because of your disability. 9 C.C.R. § 7173. 19. Does the Department of Rehabilitation (DR) have to help me communicate by providing necessary assistive technology? To the extent funds are available, DR must provide for your special language needs if you rely on alternate modes of communication, such as manual, tactile, oral and nonverbal communication devices. 20. What are transportation services? What kind of devices can I get under this service? Transportation services are supportive services. They can include travel expenses connected to: * a determination of rehabilitation potential; * counseling and placement services; * your participation in an approved program of vocational rehabilitation services; and * post-employment services. 9 C.C.R. § 7161. DR may provide a wide range of transportation services such as: * public transportation and privately owned transportation; * car pools; and * payments to coworkers and car rental agencies. It may include, when necessary, providing you with a private vehicle or modifying your vehicle. 21. Am I eligible for any other devices? DR may provide other goods and services, including assistive technology, when necessary to the successful outcome of your vocational rehabilitation. 9 C.C.R. § 7174. These may include modifications and repairs to home or apartment. However, they would be limited to removing barriers, constructing partitions, and installing other portable modular components. In addition, the DR may provide any vocational rehabilitation service to members of your family if the service is necessary to support your vocational adjustment or vocational rehabilitation. 9 C.C.R. § 7175. This may include training to use the technological aids DR provides. 22. Do I have to pay for any vocational rehabilitation services? DR can sometimes require you to contribute toward the cost of vocational rehabilitation services you need. 9 C.C.R. § 7190. DR will take into account your income and liquid assets, the number of members in your household, and your medical exemptions to compute the amount you should contribute. You would not have any financial participation when: * You receive SSDI, SSI/SSP, and other public assistance like general relief or general assistance, or AFDC (now called TANF - Temporary Assistance for Needy Families); or * You receive the following vocational rehabilitation services: evaluation of rehabilitation potential, including diagnostic and related services; counseling, guidance, and referral services; placement; training, tutoring, books, and other training materials; tools necessary to perform an occupation; personal services like attendant care, deaf and language interpreter, note taker, driver, and readers; transportation costs; and job coaching services. 9 C.C.R. § 7191. 23. Are there times when the Department of Rehabilitation (DR) can expect me to get services or equipment from another agency? DR is the payor of last resort for many services. It will not pay for a service, in many cases, if a comparable service or benefit is available through some other agency or program. 29 U.S.C. § 721(a)(8). The following services are exempt from the comparable benefits requirement: * evaluation of rehabilitation potential; * counseling, guidance, and referral services; * vocational and other training services including personal and vocational adjustment training, books, tools, and other training materials provided by a resource other than an institution of higher education; * placement; * rehabilitation technology; and * job coaching services. 9 C.C.R. § 7196. You do not have to use comparable benefits if getting those benefits would interrupt or delay progress toward achieving your employment outcome, an immediate job placement, or services if you are at extreme medical risk. 34 C.F.R. § 361.47(3). 24. When may Department of Rehabilitation (DR) terminate its services? DR can stop its services when you successfully complete your IPE. It can also stop services if you are certified as not capable of achieving a vocational goal. That certification makes you ineligible. If DR finds you are no longer eligible, it must consult you or your representative and document why it found you ineligible in an amendment to your IPE. The amendment should set out the reasons for finding you ineligible. You must receive information about your rights and how to appeal DR's decision as well as information about the services available to you from the Client Assistance Program (CAP) and how to contact CAP. If DR finds you ineligible for services you may request (on a yearly basis) that DR consider whether you have become eligible again. 29 U.S.C. § 722(a)(5). 25. What is supported employment? Supported employment is competitive work in integrated work settings with the necessary assistance, including assistive technology. Supported employment services include ongoing support services and other appropriate services needed to support and maintain people with the most significant disabilities in employment. It also includes transitional employment for people with significant disabilities due to mental illness. Services are based on the individual needs. Supported employment services are provided to help you enter or maintain integrated, competitive employment. If you have a significant disability, DR provides ongoing support services at least twice a month, to assess your work site or situation to coordinate specific intensive services you need to maintain employment. They include: * Assessments in addition to the comprehensive one usually performed; * Any devices or training in the use of devices needed to work; and * Any other services provided for in the Rehabilitation Act. 29 U.S.C. § 705(27). 26. Who is eligible for supported employment? Individuals with the most significant disabilities are eligible for supported employment. You would be eligible if you: * have not engaged in competitive employment; or * have engaged in interrupted or intermittent competitive employment as a result of a significant disability; and * because of the nature and severity of your disability, you need intensive supported employment services or extended services in order to perform the work. 29 U.S.C. § 705(35). 27. How long can Department of Rehabilitation (DR) provide supported employment services? The federal law states that DR must only provide supported employment services for up to 18 months. Under special circumstances, you and your rehabilitation counselor may jointly agree to extend the time in order to achieve the objectives in your IPE. 29 U.S.C. § 705(36)(c). However, state agencies or other resources may fund extended services beyond 18 months. For example, people with developmental disabilities can get more help under state law through the habilitation program (Cal. Welf. & Inst. Code § 19350). People on SSI could get funding for extended support through a PASS and/or IRWE without affecting their SSI grant or earnings. (See Chapter 8 on Social Security Work Incentives.) 28. What are extended services? Extended services are ongoing services needed to support and maintain people with the most significant disabilities in supported employment. These services: * are provided alone or in combination and are organized and made available to help maintain supported employment; * are based on a determination of your needs as specified in your IPE; and * are provided by a state agency, a nonprofit private organization, an employer, or any other appropriate resource after you have made the transition from DR support. 29 U.S.C. § 705(13). 29. What can I do if I disagree with a Department of Rehabilitation (DR) decision? If you disagree with any DR decision, you have one year to ask for an internal administrative review. You can make your request to the district administrator in person, by telephone or in writing. In your request, you must state the reason for the appeal and what you think DR should do. A district administrator then has 15 days to review the matter with you or your representative present (unless you say that is not necessary), and send you a written decision by certified mail. The written decision must inform you that, if dissatisfied, you may file a written request for a fair hearing within 30 days of receiving the decision. If you do not wish to appear in person for this review, you need to waive your right to appear in writing and authorize DR to review your case on the existing record. Cal. Welf. & Inst. Code § 19704(b)(2); 9 C.C.R. § 7353. 30. How can I appeal an internal administrative review decision? If the internal review results in an unfavorable decision, you can challenge the decision through mediation and/or in a due process hearing. DR must notify you in writing of: * your right to review DR decisions in an impartial due process hearing; * your right to pursue mediation prior to a hearing; and * the availability of CAP assistance. 29 U.S.C. § 722(c)(2)(A). DR must give you this notice: * when you apply for vocational rehabilitation services; * when your IPE is developed; and * when DR reduces, suspends, or cuts off your vocational rehabilitation services, including assistive technology. 29 U.S.C. § 722(c)(2)(B). DR must give you a chance to submit evidence at the mediation or hearing. You have a right to be represented in the mediation session or hearing by a person that you select. 31. What do I need to know about mediation? Any time you have a right to a due process hearing, you also have a right to use the mediation process to resolve your disputes with DR. Mediation is voluntary. It cannot be used to deny or delay your right to a hearing. It must be conducted by a qualified and impartial mediator who is trained in effective mediation techniques. DR must maintain a list of qualified mediators who are knowledgeable in vocational rehabilitation services laws. DR must pay for the cost of the mediation process. Mediation sessions must be scheduled in a timely manner and be held in a location that is convenient to both you and DR. Any agreement you reach with DR in mediation must be set forth in a written mediation agreement. Discussions that occur during the mediation process are confidential. No one can use them as evidence in any subsequent due process hearing or civil proceeding. You and other parties to the mediation process may have to sign a confidentiality pledge before the process begins. 29 U.S.C. § 722(c)(4). 32. What is a fair hearing and what do I need to know about it? A fair hearing is your opportunity to go before a seven-member panel called the Rehabilitation Appeals Board (RAB) and tell them why you think DR has made a wrong decision. The RAB acts as an impartial hearing officer. At least three members of the RAB must be present for the hearing. The RAB meets at a time and place convenient and accessible to you and the Board. If you need transportation to be at the hearing or if you need interpreters and readers for the hearing, DR should provide them. But you must request them in advance. You may go to the hearing alone, or go with your representative, or have your representative attend the hearing for you. CAP advocates (see question 4) can act as authorized representatives at DR hearings. The DR employee who made the decision, or the employee's supervisor, usually represents DR. The rules about attendance at the hearing are strict. When the RAB sends out your hearing notice, they will include a "Hearing Confirmation Form" and a self-addressed, stamped envelope. You must complete this form and return it to the RAB at least seven days before the hearing (remember to allow time for it to reach them by mail). Using this form, you must give written notice that you intend to attend the hearing or request that the RAB decide the matter on the written record in your absence. If you do not notify DR in writing, the hearing will be cancelled and the RAB will send you a notice informing you that you have 14 days from the date the notice was mailed to make a written request for a new hearing. The hearing will be rescheduled only in you can show good cause for failing to send written confirmation of your attendance or preference that the matter be decided on the written record. 9 C.C.R. §§ 7355(m); 7356(a). The hearing will also be cancelled if you do not appear within 30 minutes of the scheduled time. It will be rescheduled only if you provide a written statement within 14 days of receiving the notice canceling the hearing. This statement must how "good cause" for your not going to the hearing. Good cause means a death in the family, personal illness or injury to you or your representative, or sudden and unexpected emergencies. If you have already confirmed in writing that you will attend the hearing, and then something suddenly comes up which prevents you from attending, you will again have to send a letter to the RAB asking for a new hearing date and giving good cause as to why you could not attend the hearing. 9 C.C.R. §§ 7356(a) and (b). The RAB will dismiss your appeal if you: * Fail to file a timely request for a fair hearing within one year; * Fail to raise an issue within the jurisdiction of the RAB; * Fail to show good cause for failing to attend or failing to confirm attendance; or * Fail to request a new hearing within the 14 day deadline. 9 CCR §7355(n)(1)-(4). You may withdraw your request for the hearing at any time, but you must do so in writing. The RAB may postpone the hearing for up to 90 days for good cause if your request is made at least five days before the hearing. The RAB may also postpone a hearing to get more evidence. It may close the hearing and hold the record open for 30 days to get more written evidence. The RAB must make any new evidence available to both sides for a written response. Cal. Welf. & Inst. Code §§ 19705, 19706, 19708; 9 C.C.R. §§ 7350-7357. The RAB will send a final decision to DR, to you, and to your representative within 45 days. 9 CCR § 7358. 33. What happens to my services during the appeal process? Until the RAB makes its final decision, DR must continue the services you were receiving when the dispute arose. The exception to this rule is when services have been obtained as a result of misrepresentation, fraud, collusion, or criminal conduct. 29 U.S.C. § 722(c)(7). 34. Is there an appeal from the final Rehabilitation Appeals Board (RAB) decision? If you are dissatisfied with the RAB's final decision, you can appeal the decision in Superior Court within six months. Cal. Welf. & Inst. Code § 19709. You have the right to ask CAP for a legal review to help you decide whether to go to court. INDEPENDENT LIVING SERVICES 35. What are independent living services? Independent living services include a wide variety of services which are designed to enhance your ability to live independently in the community or with your family. In some cases, independent living services may help you secure and maintain employment. Typically, you would get independent living services through a local center for independent living (CIL). A CIL is a "consumer-controlled, community-based, cross-disability, nonresidential, private, nonprofit agency that...is designed and operated within a local community by individuals with disabilities." 29 U.S.C. §§ 796a(1), 705(18). 36. Who is eligible for independent living services? Any individual with a significant disability, defined as "...an individual with a severe physical or mental impairment whose ability to function independently in the family or community or whose ability to obtain, maintain, or advance in employment is substantially limited and for whom the delivery of independent living services will improve the ability to function, continue functioning, or move toward functioning independently in the family or community or to continue in employment..." is eligible for independent living services. 29 U.S.C. § 705 (21)(B). 37. What assistive technology is available through independent living services? Independent living centers may provide a variety of services, including transportation, rehabilitation technology, equipment maintenance and evaluation, training in independent living skills, mobility assistance, communication assistance, prostheses, and other needed appliances and devices. They may also provide advocacy services and adaptive housing services, including accommodations and modifications. To the extent that you need training and assistance to use assistive technology devices, they are available through independent living centers. 29 U.S.C. § 705(18); Cal. Welf. & Inst. Code § 19801(d). 38. What is the appeal process if I don't like a decision regarding independent living services? If you disagree with a decision relating to services you have requested from an ILC, you can ask for a review under the policies and procedures established by that ILC. The ILC must provide you with information regarding their particular appeal process in a format that is accessible to you. 34 C.F.R. § 364.58. LOAN GUARANTEE PROGRAMS 39. What are Loan Guarantee Programs? The California State Treasury has a permanent revolving fund called the Rehabilitation Revolving Loan Guarantee Fund. It has Transportation and Supported Employment and Adaptive Technology Revolving Loan Guarantee Accounts. The fund is available to guarantee loans to eligible persons to buy vans, automobiles, and special equipment. This includes modifications to vehicles and purchase of durable equipment, adaptive aids, and assistive devices to help you live more independently or obtain or maintain regular or supported employment. Cal. Welf. & Inst. Code § 19460. Under this program, the state will guarantee 100% of the principal and interest of any loan it approves. Cal. Welf. & Inst. Code § 19462. The maximum amount of a loan per individual is $20,000. Cal. Welf. & Inst. Code § 19469. The state will only grant loans up to the amount contained in the Fund. Cal. Welf. & Inst. Code § 19464. 40. Who are eligible lenders for Department of Rehabilitation (DR) loan guarantees? An eligible lender is a financial institution that is organized, chartered, or has a license or authorization certificate under a law of California or the United States to make loans or extend credit. The lender must be subject to supervision by an official or agency of California or the United States. Cal. Welf. & Inst. Code § 19461(c); 9 C.C.R. § 7263(a)(2). 41. What are the general eligibility requirements for loan guarantees? To be eligible for a loan guarantee, you must meet all of the following requirements: * Have household income (after deducting your costs for housing, utilities, food, attendant care, and loan payments) at least equal to the amount of the monthly loan payment plus the cost of operating and maintaining the item you plan to buy; * Have a credit record that shows you will not default on the loan; and * Have an approved loan request from an eligible lender, contingent on DR's agreement to guarantee the loan, that does not exceed the actual cost of the item plus costs of the application process, not to exceed $20,000. Cal. Welf. & Inst. Code § 19469; 9 C.C.R. § 7264(a). 42. Who is eligible for transportation loan guarantees? In addition to the general requirements listed in question 41, you must: * be ineligible to receive vocational rehabilitation services; * have household income that does not exceed the level prescribed for moderate-income families; and * be either: * the parent(s) of a child with disabilities who is living at home and who requires a modified vehicle for mobility, or * an employed person who requires a modified vehicle for work, and who has been found ineligible for vocational rehabilitation services from DR. Cal. Welf. & Inst. Code § 19461(b); 9 C.C.R. § 7264.2. 43. Who is eligible for assistive technology loan guarantees? In addition to the general requirements listed in Question 39, you must be either an adult with a disability, the parent of a child with a disability, or the private employer of an individual with a disability. You or your family must be ineligible for vocational rehabilitation services and/or independent living rehabilitation services. The items you will buy with the loan must be necessary for employment or to enable you to live more independently. They must be certified by a physician or by DR. The item(s) must not be available from another free or less costly source, or from Medi-Cal, Medicare, or from other funding sources such as insurance companies or health maintenance organizations. 9 C.C.R. § 7264.4. 44. What is the approval process for loan guarantees through Department of Rehabilitation (DR)? To apply for loan guarantees, you must provide DR with: * The name, address, and telephone number of the person who will use the item, documentation of monthly household income and expenses, and proof of steady employment or income for a minimum of one year prior to the loan request; * A physician's verification of the need for the assistive technology for mobility or employment purposes, or a written description from a knowledgeable individual of your functional capabilities and the type of device needed; * The actual or estimated amount of the loan request; * For transportation loans, the approximate mileage that you will put on the vehicle each month; and * Any other information DR says is necessary to determine eligibility. 9 C.C.R.§ 7263.5. Any costs associated with the approval process are your responsibility, but you may include them in the loan amount. 9 C.C.R. § 7263.5(b). You can apply at any district or branch DR office. Within five days of receiving the necessary information, DR will make a preliminary eligibility determination based on nonfinancial criteria. If you meet that test, a Program Administrator will make a preliminary eligibility determination based on financial criteria within five days. The Program Administrator will consider if there is enough money to cover the loan guarantee, your income, your employment status, and your credit record. The Program Administrator may deny the loan guarantee request if: * there are insufficient funds in the appropriate account to cover the amount of the loan request; * you do not meet the financial eligibility criteria; or * you refuse to cooperate with any phase of the preliminary eligibility determination. 9 C.C.R. § 7264.6. If the Program Administrator approves the loan guarantee, he will contact an eligible lender. The lender will send you a loan application to complete. The administrator, working with the lender, will determine an affordable monthly payment and interest rate, and will execute a loan agreement with the lender. You will make monthly payments directly to the lender. If the lender denies the request, the Program Administrator will tell you. 45. What is the appeal process for the Loan Guarantee Programs? If your loan guarantee request is denied at any stage, a notice must be sent to you in writing. It must contain the specific reasons why you are not eligible and the legal support for them. The appeal process is the same as for vocational rehabilitation services, as described in questions 29 through 34. 9 C.C.R. § 7265. 46. When can Department of Rehabilitation (DR) terminate a loan guarantee? DR can terminate a loan guarantee agreement either when you have repaid the loan or when the borrower fails to meet the conditions of the loan guarantee agreement. 9 C.C.R. § 7266. ---------- Chapter 8 SOCIAL SECURITY WORK INCENTIVES Table of Contents Question 1. How can I know if I am eligible for Supplemental Security Income (SSI)? 8-1 2. How does Social Security determine benefits? How do earnings affect Social Security Disability Income (SSDI) benefits? 8-2 3. How does Social Security calculate Social Security Income (SSI) benefits? How do earnings affect SSI benefits? 8-2 4. What are the work incentive programs under Social Security? 8-3 5. What is Substantial Gainful Activity (SGA)? 8-4 6. What is a Plan to Achieve Self Support (PASS)? 8-4 7. What types of assistive technology can I pay for under the Plan to Achieve Self Support (PASS) program? 8-5 8. How does a Plan to Achieve Self Support (PASS) affect my benefits? 8-5 9. How can I get a Plan to Achieve Self Support (PASS)? 8-5 10. What are Impairment Related Work Expense (IRWE) deductions? 8-6 11. What types of assistive technology can I deduct as Impairment Related Work Expenses (IRWE)? 8-7 12. What are the criteria for Impairment Related Work Expense (IRWE) deductions? 8-9 13. Are there limits on Impairment Related Work Expense (IRWE) deductions? 8-10 14. What kinds of payments can I deduct as Impairment Related Work Expenses (IRWE)? How do I deduct them? 8-10 15. What is the relationship between Impairment Related Work Expenses (IRWE) and a Plan to Achieve Self Support (PASS)? 8-11 16. What are Blind Work Expenses (BWE)? 8-11 17. What is the relationship between Blind Work Expenses (BWE) and Impairment Related Work Expenses (IRWE)? 8-11 18. If Social Security denies my Plan to Achieve Self Support (PASS), Impairment Related Work Expenses (IRWE), or Blind Work Expenses (BWE), can I appeal? 8-12 Chapter 8 SOCIAL SECURITY WORK INCENTIVES Social Security provides cash benefits to eligible people with disabilities. In this chapter, we will discuss two programs. Supplemental Security Income (SSI) is a joint federal and state benefit for people who become disabled before they have a substantial work history. This includes people born with disabilities or disabled in accidents during childhood. SSI provides a guaranteed grant for each eligible person. Social Security Disability Income (SSDI) is a federal pension for people who became disabled after working for some time and who paid into the Social Security trust fund through payroll deductions. The amount of your monthly SSDI check depends on the amount of money you have paid into the Social Security system. Social Security does not directly buy or provide assistive technology devices or services. However, Social Security has several work incentive programs that allow you to work and limit the impact your salary will have on your SSI or SSDI benefits. This chapter will discuss three work incentive programs - Plan to Achieve Self Support (PASS), Impairment Related Work Expense (IRWE), and Blind Work Expense (BWE). These programs allow you to shelter the amount you spend for employment-related assistive technology from consideration as income. Sheltering part of your income this way limits its impact on your SSI or SSDI benefits. Social Security programs can be complex. This manual only covers work incentive programs through which you may access assistive technology. It is intended for people who receive SSI or SSDI and who work or would like to work. For more information on Social Security programs, see PAI's manual entitled "Social Security: Service Rights and Entitlements Affecting Disabled Californians." 1. How can I know if I am eligible for Supplemental Security Income (SSI)? You must apply in person at the local Social Security office. If you cannot leave home due to a disability, a worker should come to your home. You must complete the application and return it to the Social Security office. If approved, Social Security will pay benefits back to the first day of the month following application. As an adult, you are eligible for Social Security benefits if you are unable to engage in substantial gainful activity (SGA) because of a medically determinable physical or mental impairment. The impairment must be expected to last 12 months or longer, or to result in death. There are different criteria for children to be eligible for benefits. Since Social Security has no programs for children to access assistive technology, this manual does not discuss coverage for children. You must be a U.S. citizen to be eligible for Social Security benefits. 2. How does Social Security determine benefits? How do earnings affect Social Security Disability Income (SSDI) benefits? SSDI is like an insurance program. The amount of benefits you receive depends on the amount you have paid into Social Security from your earnings before becoming disabled. To be eligible for SSDI, you must be medically disabled and either not working or earning less than the substantial gainful activity (SGA) level which is $700 per month for most people. (See Question 5 for an explanation of SGA.) If you work, the amount of your earnings will affect your eligibility for SSDI. If you earn above SGA, then you may not be eligible for any SSDI payment. But, you can earn up to the SGA level without affecting the amount of your monthly SSDI payment. Work incentive programs enable you to work and maintain SSDI eligibility by allowing you to deduct certain work-related expenses from your countable income before determining whether you have reached SGA. These expenses include costs of assistive technology. When Social Security calculates your eligibility each month, it will subtract those expenses from the amount of your earnings to determine countable income. Then it will compare your income to the SGA amount. The result is that you will be able to buy the assistive technology you need to work and keep a job, and continue to receive SSDI. (For a thorough discussion of countable income, see PAI's manual entitled "Social Security: Service Rights and Entitlements Affecting Disabled Californians.") 3. How does Social Security calculate Supplemental Security Income (SSI) benefits? How do earnings affect SSI benefits? SSI is a need-based program, which means that you may only have a certain amount of income and resources before losing your eligibility for benefits. To be eligible for SSI, you must be medically disabled and either not working or earning less than the substantial gainful activity (SGA) level. (See question 5 for more information on SGA.) To receive SSI, you may not have more than $2,000 in resources (excluding resources such as personal belongings, a primary residence, or a car) and must meet certain income (earnings) limitations. When you have earned income, such as salary from a job, the earnings will reduce your SSI grant amount for the month. Unearned income, such as a gift, will also reduce your SSI grant amount. Social Security looks at both your earned and your unearned income to determine countable income. (Both earned and unearned income are subject to certain exclusions and deductions. PAI's manual entitled "Social Security: Service Rights and Entitlements Affecting Disabled Californians" explains these exclusions and deductions fully. If you work and have countable income that exceeds SGA, you will not be eligible to begin receiving SSI benefits. But, once you become eligible for SSI, SGA is not considered and you will be eligible for SSI until your income becomes too high to receive any grant. Your income can be higher than the SGA amount before you become ineligible for any cash grant. See PAI's manual entitled "Social Security: Service Rights and Entitlements Affecting Disabled Californians" which explains how income affects your SSI grant. Work incentive programs allow you to deduct certain work expenses from your earnings, including the cost of work-related assistive technology, when calculating your countable income. You may then be able to reduce countable income below the SGA level becoming eligible for SSI or SSDI. It may also help you keep more of your monthly SSI grant. 4. What are the work incentive programs under Social Security? Social Security work incentive programs are designed to encourage people with disabilities to seek employment without fear of losing their SSI or SSDI benefits. The goals of the work incentive programs are for you to: * become employed; * increase your independence and autonomy; and * become self-supporting. Social Security has many work incentive programs. This manual covers only those through which you may get assistive technology devices and services. These programs are: * Impairment-Related Work Expense (IRWE) deductions; * Plans for Achieving Self-Support (PASS); and * Blind Work Expenses (BWE). These programs provide a work incentive because they allow you to work and earn money, but your income will not affect your benefits as much as it would otherwise. 5. What is Substantial Gainful Activity (SGA)? SGA is a level of work that is substantial and gainful. It is defined as "work activity that involves doing significant physical or mental activities" even if you only do it part-time. 20 C.F.R. § 404.1572(a). Monthly countable earnings of more than $700 usually demonstrate SGA. 20 C.F.R. § 404.1574. For SSDI beneficiaries who are blind, SGA is earnings over $1050 per month. Activities such as personal care, household tasks, therapy, school attendance, club activities, or social programs are not considered SGA. 20 C.F.R. § 404.1572(c). Social Security uses SGA to determine your initial and continuing eligibility for SSDI and your initial eligibility for SSI. 6. What is a Plan to Achieve Self Support (PASS)? A PASS allows you to set aside income and resources for an occupational objective. 42 U.S.C. §§ 1382a(b)(4)(A)(iii), (B)(iv); 20 C.F.R. §§ 416.1180-1182. You can save a small amount each month towards a particular goal. A PASS can help you establish or maintain SSI income eligibility. It can also increase or help maintain your SSI payment amount as you gain the capacity for self-support. A PASS may now last beyond four years, and can be for education, vocational training, starting a business, or buying support services that enable you to work. The purpose of a PASS is to increase your ability to earn income, thus reducing your reliance on government benefits support in the long run. For Social Security to approve a PASS, there must be: * A reasonable chance that you can achieve your occupational goal; and * A clear connection between your goal and your ability to earn more money. 7. What types of assistive technology can I pay for under the Plan to Achieve Self Support (PASS) program? The PASS program allows you to deduct from your income the costs of assistive technology such as: * equipment and supplies you need to establish and carry on a trade or business; * equipment or tools you need because of your condition or for your job; * modifications to buildings and vehicles to accommodate your disability; and * the purchase and maintenance of a private vehicle. 8. How does a Plan to Achieve Self Support (PASS) affect my benefits? Social Security does not count the income and resources set aside in a PASS when it determines your eligibility for SSI or figures the amount of your SSI benefit. A PASS will not affect countable income under the SSDI program. Through a PASS, you can set aside earned income, unearned income, and resources, but not SSI benefits. 9. How can I get a Plan to Achieve Self Support (PASS)? You need to complete a PASS application form. You can get a form from a Social Security office, in person, or by mail. You should write your PASS with the help of a rehabilitation specialist or an advocate. Your PASS should include: * A clearly stated occupational objective; * A schedule of when you will finish each step; * A list of expenditures with accurate costs; and * The income and resources you will exclude. Social Security cannot turn down your PASS if it meets the proper criteria. There is no time limit for Social Security to decide on your PASS application. If you do not get a response within 30 days of submitting an application, you should call the Social Security office to ask about the status of your application. If Social Security does not approve your PASS, you may resubmit it with changes. You have the right to appeal a PASS disapproval. Instructions for appealing should be on the back of the decision. 10. What are Impairment Related Work Expense (IRWE) deductions? An IRWE is an expense for an item or service that: * is directly related to enabling you to work; and * that is related to a physical or mental impairment. Congress established IRWE deductions in 1980 for SSI and SSDI recipients in response to concern over the limited number of people with disabilities who tried to work. 20 C.F.R. § 416.976(a). Through an IRWE, you can deduct the cost of certain items and services needed for work from your earnings, whether or not you also need the items for your normal daily activities. The SGA level is determined after these expenses are deducted. The result is that IRWE deductions may reduce your earnings below the SGA level for purposes of SSI or SSDI eligibility. IRWE deductions may reduce earned income in determining your SSI benefit and your eligibility for special SSI status under section 1619(b) of the Social Security Act. Unlike a PASS, IRWE's and BWE's (discussed in questions 16 and 17) don't allow you to shelter a small amount each month towards a big goal, such as a lift-equipped van. They are for regular monthly expenses or purchases you can make now. But, they may be easier to establish. See question 15 for a further discussion of advantages and disadvantages. 11. What types of assistive technology can I deduct as Impairment Related Work Expenses (IRWE)? Allowable expenses that you may deduct as IRWE include payments for: * the purchase, installation, maintenance, and repair of an impairment-related item; and * an impairment-related service that is necessary for work. There is no separate deduction for the repair or maintenance of vehicles you use to get to and from work. These costs are already included in a separate deduction for mileage. Expenses that are related to the work setting, transportation expenses for travel to and from work, and community residence expenses are all deductible as IRWE. Medicare or Medi-Cal may provide many of the items that are listed below. Any assistive technology that you get through Medicare or Medi-Cal is not deductible as IRWE. There are several categories of assistive technology that are deductible is as IRWE. These categories include: * Medical Devices. Medical devices (durable medical equipment): * can withstand repeated use; primarily serve a medical purpose; and * generally would not be useful to you in the absence of an illness or injury. Medical devices include wheelchairs, hemodialysis equipment, respirators, intermittent positive pressure breathing machines, pacemakers, inhalators, nebulizers, suction machines, traction equipment, braces (leg, arm, back and neck), and similar items. 20 C.F.R. §§ 416.976(c)(2), 404.1576(c)(2). * Prostheses. Prostheses include devices that replace internal body organs or external body parts. They include artificial hips and artificial replacements of arms, legs, or other body parts. Payments for prosthetic devices that are primarily for cosmetic purposes, rather than functional purposes, are usually not deductible. * Work-Related Equipment. This is equipment (other than medical devices and prostheses) that you may need to perform your job, to move from home to transportation, or to control the disabling condition so you can function in a work activity. Costs for these expenses are deductible only when you pay for them. They are not deductible if your employer pays for them. Examples might include one-handed keyboards, page-turning devices, measuring instruments, vision and sensory aids for the blind, telecommunications devices for the deaf, and tools which have been specifically designed to accommodate your employment. Training to use the equipment is also deductible. If you otherwise deduct these as a business expense, and you are self-employed, they are not deductible as IRWE. 20 C.F.R. §§ 416.976(c)(4), 404.1576(c)(4). * Residential modifications. You may deduct the costs of modifying your residence as IRWE if the expense is necessary for you to get to your means of transportation to work. For example, exterior ramps, railings, or pathways are part of the total process of getting you to and from work. Generally, interior modifications are not deductible since they primarily help you in the home. 20 C.F.R. §§ 416.976(c)(4)(ii), 404.1576(c)(4)(ii). * Residential modifications. If you work at home, you may deduct the cost of residential modifications that pertain specifically to your in-home work space. These may include enlarged doorways into an office or work space, or modifications to your work area to accommodate problems in dexterity. Any tax deductions you take as self-employment expenses are not deductible as IRWE. 20 C.F.R. §§ 416.976(c)(4)(ii), 404.1576(c)(4)(ii). * Essential nonmedical appliances and equipment. Portable room heaters, air conditioners, humidifiers, dehumidifiers, electric air cleaners, and posture chairs which ordinarily are not used for medical purposes, are not deductible as IRWE. However, if you can establish an impairment-related and medically verified need for such an item, it may be deductible. To be essential, the item must be so vital that you could not function at work without it. If, for example, you have a severe respiratory condition, an air cleaner may be deductible as IRWE. Items such as exercise machines are not deductible unless: * your treating physician prescribes it; and * you need it to be able to work. 20 C.F.R. §§ 416.976(c)(4)(iii), 404.1576(c)(4)(i)(iii). * Routine drugs and medical services. If you pay for them, you can deduct drugs and medical services if you need them to control your disabling condition so you can work. 20 C.F.R. §§ 416.976(c)(5), 404.1576(c)(5). * Other items and services. You may be able to deduct as IRWE: * eyeglasses (if they correct a disabling visual impairment); * expendable medical supplies such as bandages, face masks, incontinence pads, etc.; and * the cost of buying and maintaining a guide dog. 20 C.F.R. §§ 416.976(c)(6)(ii), 404.1576(c)(6)(ii). * Vehicle modification. If you need a specially modified vehicle in order to work, the cost of the modification (but not the cost of the vehicle) is deductible as an IRWE (if you pay for it). You may also deduct the operating costs of a modified vehicle that are directly related to work. You may not deduct any modifications paid for by the Department of Rehabilitation. 12. What are the criteria for Impairment Related Work Expense (IRWE) deductions? IRWE deductions must meet the following criteria: * the expense must be impairment-related; * you must need the item or service to work; * you must have verification that you actually used the item or service; and * you must pay for the item or service out-of-pocket (it cannot be funded, subsidized, or reimbursed). The amount of the expense must be within "reasonable limits." The expense must correspond to a month in which you worked and used the item or service. 13. Are there limits on Impairment Related Work Expense (IRWE) deductions? "Reasonable limits," apply to the allowable deduction for IRWE. Generally, the amount you pay for medical services and devices, prostheses, and medically related items is reasonable if the cost is no more than the prevailing rate for the same item or service in your community. 20 C.F.R. § 404.1576(f)(1). Social Security can use Medicare guidelines, if available, to determine reasonable cost, which is generally less than the prevailing rates. But, Social Security almost always accepts the actual cost paid for a device if it appears reasonable and consistent with prevailing costs in the community. If the amount you paid is higher than the prevailing rate, you can deduct an amount equal to the prevailing rate. 14. What kinds of payments can I deduct as Impairment Related Work Expenses (IRWE)? How do I deduct them? You can deduct recurring expenses, such as monthly rental charges or installment payments, as you pay the expenses, including interest, tax, and other charges. 20 C.F.R. §§ 416.976(e)(1), 404.1576(e)(1). You can choose to deduct non-recurring expenses entirely in one month, or you can spread the deductions over 12 consecutive months. A non-recurring expense might be a down payment or a single large purchase. Payments that you make in anticipation of work may also be deducted if you make them within 11 months before you began working. If the item is useful during months you are not working, only the portion related to the months you work is deductible. 20 C.F.R. §§ 416.976(e)(4), 404.1576(e)(4). 15. What is the relationship between Impairment Related Work Expenses (IRWE) and a Plan to Achieve Self Support (PASS)? Expenses that you have deducted as PASS expenses are not allowed as IRWE deductions. If PASS does not cover the entire cost of the item or service, however, you may deduct the remainder as IRWE. The expense must be within a reasonable limit, and it must meet IRWE requirements. In determining SGA, the entire amount of the item or service, up to the reasonable limit, is deductible. Because of the way Social Security determines countable income, if you can deduct an item as either an IRWE or PASS expense, it is to your benefit to deduct the expense through a PASS. 16. What are Blind Work Expenses (BWE)? If you are blind, Social Security does not count any work expenses you incur in order to work in determining your SSI eligibility and payment amount if you are: * Under age 65, or * Over 65 and received SSI due to blindness for the month before you turned 65. Some examples of assistive technology that may be BWE are Braille printers, visual or sensory aids, scanners, "talking" computers, and "talking" Braille materials. 17. What is the relationship between Blind Work Expenses (BWE) and Impairment Related Work Expenses (IRWE)? If you are blind, BWE deductions allow you to shelter income to meet work expenses similar to IRWE deductions. There are some differences, however. BWE deductions apply only to SSI benefits, not SSDI benefits. The exclusions under BWE and IRWE are similar, but not identical. Expenses deductible under a BWE need not relate directly to your impairment; it can be any work expense if you are blind. IRWE must be directly related to your impairment. Because of the way budgets are calculated, if you can deduct an item as either BWE or IRWE, it is better to use the BWE deduction. 18. If Social Security denies my Plan to Achieve Self Support (PASS), Impairment Related Work Expenses (IRWE), or Blind Work Expenses (BWE), can I appeal? You can appeal any decision made by Social Security. This includes denial or reduction of benefits, overpayment, or a dispute over PASS, IRWE, or BWE deductions. The time for appealing is generally 60 days from when you receive a notice with which you disagree. If you file the appeal within 10 days, you may continue to receive current benefits pending the outcome of the appeal. If you lose the appeal, you may have to pay for the benefits you received during your appeal. The administrative appeals process has three levels: * Reconsideration by either case review, informal conference, or formal conference. You can choose which method of reconsideration you want. In a case review, someone at Social Security not involved in the original decision reviews your file and agrees or disagrees with the decision. In both informal and formal conferences, you meet with someone at Social Security who was not involved in the original decision. The difference is that in a formal conference, you can subpoena witnesses. For PASS and IRWE disputes, a formal conference is generally preferable as you can bring witnesses and/or a representative. It may take longer than a case review, however. * If you are not satisfied with the result of the reconsideration, you may go to the second level, a hearing in front of an administrative law judge. * If you do not like the administrative law judge's decision, you may request the third level of the administrative appeals process, an appeals council review. You can appeal an unfavorable appeals council decision to state or federal court. ---------- Chapter 9 SPECIAL EDUCATION Table of Contents Question 1. What is special education? 9-1 2. What are related services? 9-1 3. What is assistive technology in special education? 9-1 4. Who is eligible to receive assistive technology under IDEA? 9-4 5. Are there different rules for different age groups? 9-4 6. Which agencies have responsibility for providing assistive technology in special education? 19-5 7. What is an "educational agency" or a "local educational agency?" 9-6 8. How can my child get assistive technology through the school? 9-6 9. Will the school evaluate my child's need for assistive technology? 9-6 10. What is an IEP and how does it work? 9-7 11. How can I get assistive technology included in my child's IEP? 9-7 12. Who owns assistive technology that the school buys for a special education student? 9-8 13. Can the school district make us buy equipment with Medi-Cal or private insurance? 9-9 14. Can our child take home equipment that the school district buys? 9-9 15. Does the school district provide training to use an assistive technology device? 9-9 16. Who is responsible for repairing and maintaining assistive technology devices? 9-10 17. Is cost a factor in determining whether my child can get assistive technology? 9-10 18. I have a child with some hearing loss in both ears. Can we ask his school district for hearing aids? 9-10 19. My child needs eyeglasses to do her schoolwork. Can she get them from her school district? 9-11 20. Our child is blind. We want him to learn Braille. What can we ask his school district to do? 9-11 21. Who is responsible for Brailling school materials for my child? 9-12 22. Our child has Medi-Cal coverage. She needs a communication device. Can her school district refuse to provide it because Medi-Cal now pays for these devices? 9-12 23. My child is in a private school. Can he get assistive technology from the school district? 9-13 24. Our child uses her own talking computer for schoolwork. What rights do we have if the computer is damaged at school? 9-14 25. We would like our child to use the same computers in school as other kids do. What can we do? 9-14 26. What if we disagree about the need for, or type of, assistive technology? 9-15 27. How does the hearing process work? 9-15 28. What happens to the assistive technology device or service during the hearing process? 9-16 29. What factors will the hearing officer look at to see if my child is entitled to assistive technology? 9-16 30. What can we do if the school district does not comply with the law? 9-17 31. Are there any other ways to resolve a disagreement? 9-18 32. My child does not qualify for special education. Can she get assistive technology through the school district? 9-18 33. What can we do if the school district does not give my child a reasonable accommodation? 9-19 34. Do school districts get special funding to provide assistive technology? 9-19 35. What is AB 3632/882? How does it affect assistive technology? 9-20 36. Can my child get assistive technology to take part in vocational education? 9-20 37. What are early intervention services? How do they affect assistive technology? 9-21 38. How can my child get assistive technology through Part C? 9-21 39. What should we do if the agency will not provide services? 9-22 ACCESSING ASSISTIVE TECHNOLOGY Chapter 9 SPECIAL EDUCATION 1. What is special education? Congress enacted the Individuals with Disabilities Education Act (IDEA) in 1975. IDEA is a federal law that authorizes special education and related services, including assistive technology. 20 U.S. §§ 1400 and following. California patterned its own statutes on IDEA. California laws govern special education services in California. California Education Code (Cal. Ed. Code) §§ 56000 and following. Special education is instruction that is specially designed to meet the unique needs of students with disabilities at no cost to parents. This includes classroom instruction, home instruction, instruction in hospitals and institutions, vocational education, and physical education. 2. What are related services? Related services are supportive services that students require in order to benefit from their special education programs. California calls related services Designated Instruction and Services (DIS). Cal. Ed. Code § 56363; 5 C.C.R. §§ 3051 and following. Education for children with disabilities includes independent living skills and vocational education, and not just academics. Special education students may need a broad range of related services. Assistive technology devices (and the services necessary to help a child select, acquire, or use an assistive technology device) are available if your child requires them as part of her special education or related services. 20 U.S.C. § 1401(1) and (2); 34 C.F.R. §§ 300.308, 300.6. 3. What is assistive technology in special education? In special education, "assistive technology" refers to any devices or services: * That your child needs to benefit from his special education or related services; or * That enable your child to get his education in the least-restrictive environment. 34 C.F.R. § 300.308. The 1990 amendments to IDEA added the term "assistive technology" and its definition. The IDEA definition says: The term assistive technology device means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of children with disabilities. 20 U.S.C. § 1401(1). The term assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. The term includes: * The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child's customary environment; * Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities; * Selecting, designing, fitting, customizing, adapting, applying maintaining, repairing, or replacing of assistive technology devices; * Coordinating and using other therapies, interventions or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs; * Training or technical assistance for a child with disabilities or, where appropriate, the family of a child with disabilities; * Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or other individuals who provide services to, employ or are otherwise substantially involved in the major life functions of individuals with disabilities. 20 U.S.C. § 1401(2). Assistive technology in special education also includes specialized transportation equipment such as "special or adapted buses, lifts, and ramps." 34 C.F.R. § 300.16(b)(14). An Office of Special Education Programs (OSEP) letter said that the definition of "related services" includes assistive technology. 16 EHLR [Note 1] 1317 OSEP, 1990. The letter emphasized the hallmark of special education law =485; that: * The determination of what constitutes a free, appropriate public education must be made on an individual basis, and * Any needed services must be included in the student's IEP. A 1992 OSEP letter stated that calculators, tape recorders, and teachers' notes can be considered assistive technology. Lambert, 18 IDELR 1039, 1992. Other OSEP policy letters and hearing decisions clarify the types of assistive services and devices that IDEA covers. SEP found that related services include: * An Apple IIe computer (In Re Mary H 1984-1985 EHLR 506:325); * Auditory training equipment (Cleveland Public School District, EHLR 353:307 OCR 1988); * Computer assistance (Eldon MO R-1 School District EHLR 352:144 OCR 1986); * A computerized communication system (San Francisco USD 1985-1986 EHLR 507:416); * A device for loading/unloading students from a bus (Davis USD 18 IDELR 696, 1992); * A $7,000 liberator communication device (19 IDELR 355, 1992); and * Hearing aids (Seiler, 20 IDELR 1216, 1993). 4. Who is eligible to receive assistive technology under IDEA? Children who have disabilities and need special education services to benefit from education have the right to special education and related services. Related services include assistive technology. Eligible disabilities include sensory impairments (hearing, vision, speech, language), orthopedic impairments, mental retardation, autism, serious emotional disturbance, specific learning disabilities, or other health impairments. Children with traumatic brain injuries also qualify for special education under federal law. 20 U.S.C. § 1401(3); 34 C.F.R. § 300.7. California law refers to "individuals with exceptional needs." Cal. Ed. Code § 56026; 5 C.C.R. § 3030. Children who meet these criteria who are between the ages of three years and 18 years, inclusive, are eligible for special education. Cal. Ed. Code § 56026(c)(2) and (3). Individuals between 19 and 21 who are enrolled in or are eligible for special education programs prior to their 19th birthdays, and who have not completed their prescribed courses of study (or who have not met prescribed proficiency standards), are eligible for special education. Cal. Ed. Code § 56026(c)(4). 5. Are there different rules for different age groups? Yes. From age 3 to age 18 - Children who have a qualifying disability are eligible for special education if they are at least three years old, but have not yet turned 19. Cal. Ed. Code § 56026(c)(2) and (3). From age 19 to age 21 - Students between 19 and 21 are eligible for special education if they: * Are enrolled in (or are eligible for) special education programs before their 19th birthday; and * Have not completed their prescribed course of study (or have not met prescribed proficiency standards). Cal. Ed. Code § 56026(c)(4). From age 3 to age 5 - Children aged three to five years are eligible under the same criteria as school-age children. There is also one new category for three to five-year olds, called established medical disability. To qualify, this medical condition or congenital syndrome must have a high predictability of requiring special education. Cal. Ed. Code § 56441.11. From birth to age 3 - Infants and toddlers under age three are eligible for early intervention services if they: * Have developmental delays; * Are at risk for developmental delays; or * Have low-incidence disabilities (vision, hearing, or orthopedic impairments) and are not otherwise eligible for regional center services. PL 99-457 (Part C of IDEA); Cal. Gov. Code §§ 95000 and following. 6. Which agencies have responsibility for providing assistive technology in special education? Regional centers are the responsible lead agencies for infants and toddlers who have developmental delays or are at risk for delays. School districts have responsibility for those who have solely low-incidence disabilities. (See questions 37 and 38 for information about assistive technology for infants and toddlers available through the regional center and the school district.) The rules and protections of IDEA, not the Lanterman Act, usually govern early intervention. If your child also has developmental disabilities under state law, she would have a right to any additional benefits under the Lanterman Act. School districts may also have to provide assistive technology for students as a reasonable accommodation under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973. Students who are not eligible for Special Education under the IDEA (perhaps because they do not fit into one of the defined categories, or because their learning problems are not severe enough) may still qualify for assistive technology to allow them equal access and opportunity to participate with non-disabled peers. (See question 32 for information on students eligible under Section 504 and ADA.) 7. What is an "educational agency" or a "local educational agency"? The terms "education agency" or "local educational agency" or "school district" refer to the agency that administers your child's school. For simplicity, we call them "schools." 8. How can my child get assistive technology through the school? You should include any necessary special education services, including assistive technology, in your child's Individualized Education Program (IEP). To begin the process, you should ask the school, in writing, for the assistive technology that your child needs. If you do not know exactly what type of device your child needs, simply say why your child needs assistive technology. For example, if your child has a hearing impairment, you can say that she needs help understanding what people are saying in the classroom. In the assessment and IEP process, the IEP team should determine your child's needs for assistive technology along with her placement, transportation, related services, and other needs. Once you make the request, the school district has 15 days to provide a proposed assessment plan. This plan must contain a notice of your rights as the child's parent. You have at least 15 days to consent to the proposed assessments. Once the school district receives your consent, it has 50 days to complete the assessments and hold an IEP meeting. 9. Will the school district evaluate my child's need for assistive technology? Yes. Once you ask for assistive technology (or other special education services, the school district does a complete evaluation of your child's need for the device or service. There is no cost to your family. If you disagree with the school district's findings, you can get an independent evaluation. The school district is responsible for the cost of your child's independent evaluation as well. However, the school district does not have to pay for your child's independent evaluation if it can show that the school's assessment was accurate, complete, and met the proper requirements. 34 C.F.R. § 300.503; Cal. Ed. Code § 56329. 10. What is an IEP and how does it work? The Individualized Educational Program (IEP) is a legal document. The IEP sets out your child's present levels of educational performance, goals and objectives, special education and related services, and placement for each school year. An IEP team develops the document. The IEP team must include you as the parent, your child (if appropriate), your child's teacher, and a school administrator. It may include a regional center caseworker. It may also include others who provide speech and language therapy, occupational therapy, counseling, etc. Each year, the IEP team must meet to review and revise the IEP for the following year, based on your child's progress and educational needs. If your child needs assistive technology devices and services, you should specifically include them in the IEP. You must sign the IEP document before it can go into effect. If there is a disagreement about the IEP team's recommendations, you should not sign the IEP. You can ask for a due process hearing or some other means of dispute resolution. 11. How can I get assistive technology included in my child's IEP? IDEA regulations say that you can include assistive technology in an IEP for three reasons: * As part of special education; * As a related service; or * As a supplemental aid or service to allow the child to be educated in the least restrictive environment. 34 C.F.R. § 300.308. Although these distinctions may seem confusing, the basic standard is that your child needs the assistive technology to benefit from special education. First: Assistive technology may be part of your child's goals and objectives for special education. 34 C.F.R. § 300.17. For example, your child may need a communication device so he can answer questions and talk to his teacher and peers. His IEP goal might say: "Using an electronic communication device, John will respond appropriately to questions from teacher and classmates five out of five times." Second: Assistive technology may be part of related services. 34 C.F.R. § 300.16. It may be the related service itself, or it may enable your child to benefit from a related service. For example, your child may need a lift on the school bus so he can ride to school with his peers. Davis USD 18 IDELR 696, 1992. A related service may also be training or evaluation to help him use a device. For example, occupational therapy may involve finding the correct position to use a computer keyboard or a communication board. Third: Assistive technology may be a supplementary aid or service that enables your child to be educated in the least restrictive environment. 34 C.F.R. § 300.550(b)(2). The IEP team should consider and approve assistive technology to allow your child to stay in the regular classroom setting before considering a more restrictive setting. For example, a listening device that would help your hearing impaired child take part in a regular class would be allowable if, without the device, he would have to be in a more restrictive setting. If the IEP team includes assistive technology in your child's IEP, the school district must buy the device or service. As of July 1, 1998, the law requires the IEP team to specifically consider a child's need for assistive technology devices and services when developing an IEP. 20 U.S.C. § 1414(d)(3)(B)(v). This requirement means that, while developing your child's IEP, the school must consider whether she needs assistive technology to assure that she will benefit from special education. In addition, if your child is blind or has visual impairments, the IEP team must provide for instruction in Braille and the use of Braille. The only exception is when the IEP team determines, after evaluating your child's current and future needs, that instruction in Braille or the use of Braille is not appropriate for her. 20 U.S.C. § 1414(d)(3)(B)(iii). 12. Who owns assistive technology that the school buys for a special education student? Any equipment purchased by the school belongs to the school district. If your child moves to another school district, the equipment stays with the district that bought it. The school should allow your child to take the equipment home, however, if he needs it to benefit his education. For example, he might need it to do homework or to practice communication skills outside the classroom. 13. Can the school district make us buy equipment with Medi-Cal or private insurance? Using other funding sources such as Medi-Cal or private insurance must be voluntary. The child's family must give permission. The school district cannot make you suffer a financial loss that parents of nondisabled students do not have to suffer. Such losses might include: * Decreased availability of lifetime insurance coverage or other benefits; * Increased premiums; * Canceled policy; * Out-of-pocket deductible expenses; * Limits on the amount of services you can claim. Be sure to find out if using your own insurance will limit the amount of insurance protection available for future family use. Even if you volunteer to use other payment sources for assistive technology, the school district still has an obligation to provide all services included in the IEP. If your insurance or Medi-Cal does not cover the entire cost of the equipment, the school must assume the rest of the cost, so that there is no charge to you. 14. Can our child take home equipment that the school district buys? Yes. If your child needs the equipment at home to benefit from its use, and your child's IEP calls for home use, then he may take it home. 18 IDELR 627, 1992. Hearing officers consistently rule that, while the school district owns the device, it cannot limit its use to school grounds if a student needs the device at home or in a community setting in order to receive a free, appropriate public education (FAPE). That means, if your child needs the device to complete his homework or to practice skills outside of school, he can take it home. The IEP team should discuss how and when your child could take the equipment home. 15. Does the school district provide training to use an assistive technology device? Yes. The school must give your child, you, other family members, and school personnel adequate training to assure proper use of the device. IDEA includes such training in the definition of assistive technology service. The school district must pay for the training. 20 U.S.C. § 1401(2)(E). 16. Who is responsible for repairing and maintaining assistive technology devices? The school district is responsible for repairing and maintaining the devices it buys. You and the school district should look at all warranties and maintenance contracts that come with devices to see if they cover these services. The IEP team should discuss training, repair, and maintenance with the school district. Everyone should agree on the arrangements before implementing the IEP. The school district should review its property insurance policy to see what the policy covers and whether it will cover loss or damage at school and at home. 17. Is cost a factor in determining whether my child can get assistive technology? The school district may consider cost in deciding whether to provide a device but only if a less expensive device is also appropriate. One hearing officer ruled that cost was a factor, but then authorized a $7,000 Liberator communication device. 19 IDELR 355, 1992. Cost may not be a factor if the other choice will deny your child access to FAPE. 18. I have a child with some hearing loss in both ears. Can we ask his school district for hearing aids? Yes. If your child is a special education student and needs hearing aids as part of his special education program, or related services, or supplementary aids and services. 34 C.F.R. § 300.308. Normally, hearing aids are considered personal devices and school districts do not have to supply them. But, it is different when you can show that your child needs hearing aids to increase, maintain, or improve his functional capabilities as set out in his IEP goals and objectives. 34 C.F.R. § 300.5. OSEP Policy Letter to P. Seiler, 20 IDELR 1216 (11/19/93) and OSEP Policy Letter to J. Galloway 22 IDELR 373 (12/22/94). How to determine the educational need for hearing aids is part of the IEP process. After assessment, it is up to you and the rest of the IEP team to set your child's educational goals and objectives. If your child's hearing loss interferes with his progress toward these goals and objectives, you must make sure that his IEP says so. The IEP team must write his goals and objectives clearly, so the school district understands why it must make the hearing aids available. You can justify your child's need for hearing aids under one of the three main IEP areas - special education, related services, and supplementary aids and services. (See questions 1 and 2 for explanations of these terms.) If your child has Medi-Cal, CCS, or private insurance benefits, the school can ask them to provide the hearing aids. See question 22 for information about your right to agree or refuse to use these benefits for items related to special education. 19. My child needs eyeglasses to do her schoolwork. Can she get them from her school district? Like hearing aids, eyeglasses are personal devices. Normally, school districts do not have to provide them. But, when the devices are necessary for your child to receive a FAPE, the school district does have to provide them. OSEP Policy Letter to T. Bachus, 22 IDELR 629 (1/13/95). As part of the assistive technology evaluation, your child may have her vision tested to identify her needs. See OSEP Policy Letter to Bachus. If the examination shows that she needs eyeglasses to read, write, or take part in the school program: * The IEP team should discuss the need for eyeglasses; and * The school district must furnish the required eyeglasses. In most cases, children with visual impairments need eyeglasses. However, OSEP has said it is possible that children with other disabilities, such as learning disabilities, may need eyeglasses too. According to OSEP, if your child needs glasses to achieve her IEP goals, then the school district must supply them. See Letter to Bachus above. 20. Our child is blind. We want him to learn Braille. What can we ask his school district to do? You can ask his school to teach him Braille and to provide materials in Braille. Under the law, your child's IEP team must consider using Braille as his primary means of communication. The law makes an exception if the IEP team finds that a different means of communication is appropriate for him. 20 U.S.C. § 1414(d)(3(B)(iii). 21. Who is responsible for Brailling school materials for my child? The simple answer is that a "qualified" person should Braille the materials. his is what the federal law says, but it does not say what "qualified" means in terms of education or experience. States can set their own qualification standards. California's Education Code has no certification or licensing requirements for Braille transcribers. Some courses (like math, physics, chemistry and geography) may require specialized knowledge or experience. You should insist that your child's school choose a transcriber who has the necessary skills for Brailling texts, maps, graphs, diagrams, charts, and any special terms or symbols used in your child's classes. 22. Our child has Medi-Cal coverage. She needs a communication device. Can her school district refuse to provide it because Medi-Cal now pays for these devices? No. Under part B of the IDEA, state and local education agencies have an ongoing responsibility to provide a FAPE to eligible children with disabilities. These agencies carry out that duty by providing the services set out in the child's IEP. Augmentative communication devices have long been recognized as an educational benefit under IDEA. If your child needs an augmentative communication device, you must state it in his IEP and his school must supply it. The law allows schools to use available federal and state resources to meet their obligations. That may include use of Medi-Cal services. But the school cannot suspend or postpone delivery of special education services because such resources are also available. Since 1996, Medi-Cal has become a steady source of funding for augmentative communication devices and services. Access to augmentative communication through Medi-Cal requires a carefully prepared evaluation by a licensed speech pathologist. Without it, Medi-Cal will deny or defer requests until you send them adequate justification. See question 33 of Chapter 10 in this manual. If you face a prolonged delay in obtaining authorization from Medi-Cal, the school must act immediately and buy or rent the device. The school can ask for reimbursement when Medi-Cal approves the device. 20 U.S.C. § 1412(a)(12)(B). 23. My child is in a private school. Can he get assistive technology from the school district? Whether your child has a right to get assistive technology from the school district depends on why he is in a private school. If your child's placement in a private school resulted from a school district decision, then he has a right to a FAPE, just like children who attend public schools. His need for assistive technology to benefit from his private schooling follows the same principle. Each year, when writing a new IEP, his IEP team must consider whether he needs assistive technology to achieve the goals set out in his IEP. If the IEP team finds that an item of technology is necessary, the district must provide it at no cost to you. But the district may not be responsible if you acted on your own to put your child in a private school. If you did, you have the right to reimbursement of the cost of his schooling and any related services or assistive technology only if a hearing officer or judge rules that: * His school district failed to provide or offer him a FAPE; and * His current placement is in fact appropriate. Burlington Sch. Comm. v. Department of Educ. 471 U.S. 359 (1985). Thus, if your child is in a private school, and you buy assistive technology for him, you can get reimbursement only if you can show: * that the two conditions above are met; and * that the expense was necessary to help him benefit from his private placement. The law now requires parents to first inform the district, at either the IEP meeting or by letter, of their concerns. You need to tell the district that you disagree with the proposed placement, that you reject that placement, and that you intend to place your child in a private school at district expense. This prior notice is not necessary under four circumstances: * when the parents are illiterate; * when compliance would endanger the child; * when the school prevents the parents from giving the notice; and * when the district does not notify the parents of their rights. 20 U.S.C. § 1412(a)(10)(C). If your child could receive a FAPE in a public setting, but you prefer to send him to a private school, the district does not have to meet his individual needs. However, the district has a general obligation to spend a proportionate share of federal Part B funds on your child. The amount is small and would not allow the district to meet every need of every child placed in a private school by a parent. 24. Our child uses her own talking computer for schoolwork. What rights do we have if the computer is damaged at school? The law does not require your child's school to assume responsibility for any damage to any assistive technology it does not own. But, OSEP has advised schools to do so if you bought the device for school purposes. Schools cannot compel you to let your child use a family-owned device at school. Your child's school must provide the equipment the IEP team says he needs. OSEP Policy Letter to Anonymous, 21 IDELR 1057 (8/9/94) 34 C.F.R. § 300.6(c). In many cases, schools find that it costs less to pay for repair or replacement than to buy a device. 25. We would like our child to use the same computers in school as other kids do. What can we do? More and more schools are making computers part of their general class work. Your child has a right to learn about and benefit from new educational technologies the same as nondisabled students. The root of this right is in IDEA and in anti-discrimination laws such as the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. Under IDEA, you can use the IEP process to get adequate access for your child. Most of the time, you should be able to write the need for computer access into your child's IEP as a special education service. Or, you could argue that the requirement for least restrictive environment goes beyond sharing classrooms. Thus, inclusive education requires use of the same or similar technologies as your child's nondisabled peers use. Title II of the ADA and Section 504 provide an even more direct and powerful legal basis for seeking equal access to technologies. Under these laws, people with disabilities have a right to full and equal access to the services of any public program, or any program that gets federal funds. Providing educational technology in schools is such a program. Your child has a right to use and receive its benefits to the same extent as nondisabled children. On October 10, 1997, the U.S. Department of Education issued a memorandum entitled Consenting Access to Educational Technology. That memo, which stresses schools' responsibilities in this area, includes a letter from the Secretary of Education to school districts, as well as a technical guide on how to make educational technologies accessible to students with disabilities. To get a copy of this memo, contact the Clearinghouse on Disability Information at (202) 204-8241. For more information on Title II of the ADA and how you can enforce it, see Chapter 13 in this manual. 26. What if we disagree about the need for, or type of, assistive technology? Your child's IEP team should discuss any disagreements and try to resolve them informally. If you disagree with the proposed IEP, you can file for a due process hearing with the state Special Education Hearing office. 27. How does the hearing process work? You must send a hearing request in writing to: Special Education Hearing Office Institute for Administrative Justice McGeorge School of Law 3200 Fifth Avenue Sacramento, CA 95817 The Hearing Office will schedule a date for a hearing in case you cannot resolve the disagreement through mediation. The Hearing Office will also give you the name and telephone number of a mediator. If both you and the other parties want to schedule a mediation before the hearing, you can call the mediator. Because you can resolve most cases in mediation, we strongly recommend it. The Hearing Officer must hold the hearing and make a decision within 45 days of receiving the hearing request. Both you and the school district have a right to be represented by an attorney or advocate at the mediation and at the hearing. If you win, the school district may have to pay for your reasonable attorney's fees. 28. What happens to the assistive technology device or service during the hearing process? A stay put provision keeps your child's current IEP in effect while a hearing is pending. Say, for example, the current IEP provides for a special computer, but the new IEP cuts that provision. Once you file for a hearing, your child's current IEP stays in effect until the dispute is settled. The school district has to provide all services in the current IEP, including the computer, throughout the appeal process. 29. What factors will the hearing officer look at to determine if my child is entitled to assistive technology? In deciding whether your child is entitled to an assistive technology device or service, the hearing officer follows basic legal mandates for providing a FAPE. The hearing officer will look at: * whether your child needs the device or service to benefit from special education; and * whether the device or service is part of the school district's obligation to educate students with disabilities in the regular education environment, if possible. In applying these standards, hearing officers have considered: * The importance of language in education, lack of alternative systems, and predicted success (in ordering a school district to provide a communication device); * Whether a lift would improve gross motor skills, safety, normalcy, and family acceptance of the device (in deciding the most acceptable way to help a child get on and off the bus); and * Whether the IEP appropriately considered the child's potential. 30. What can we do if the school district does not comply with the law? When you believe the school district has violated a part of special education law or procedure you (or any other person, public agency or organization) can file a complaint with the California State Department of Education (CDE). Examples of non-compliance could be when the school district: * Does not provide a device that is in your child's IEP; * Does not follow time lines for assessment and referral; * Does not inform you of an IEP meeting; or * Does not implement a due process hearing decision. When the CDE investigates a complaint, it will determine whether the school district was out of compliance with the law or with your child's IEP. If the CDE finds the school district out of compliance, it will order the school district to come back into compliance. The CDE may also order the agency to submit a plan of correction. A plan of correction sets out the steps the school district has taken, and will take, to make sure the problem does not occur again, either to your child or to other children. The CDE sometimes orders compensatory services or reimbursement for out-of-pocket costs a family incurred as a result of the school district's non-compliance. To file a compliance complaint with CDE, write to: Complaint Management and Mediation Unit Special Education Division California State Department of Education 515 L Street, Suite 270 Sacramento, CA 95814 CDE must investigate and resolve the complaint within 60 calendar days from receipt of the complaint. If the Complaint Management and Mediation Unit does not respond within 10 days after the complaint is mailed, call the Unit at (916) 445-4632 to follow up. 31. Are there any other ways to resolve a disagreement? Yes. When you have a disagreement, you may ask for a "pre-due process" mediation. You send this request to the Special Education Hearing Office at the address listed in question 27. This pre-due process mediation is not mandatory. You may skip it and just file for a due process hearing. A pre-due process mediation is exactly like a due process mediation. The state provides a mediator to sit down informally with both sides and try to resolve the disagreement. The Special Education Hearing Office probably will not offer a regular due process mediation after an unsuccessful pre-due process mediation. There are three major disadvantages to pre-due process mediation. First, an attorney or independent contractor cannot represent you at a pre-due process mediation. Second, and the reason most advocates do not recommend pre-due process mediation, "stay-put" protections do not necessarily apply until you ask for a due process hearing. Cal. Ed. Code §§ 56500.3 and 56501. "Stay-put" protections guarantee that your child will stay in his existing placement, or get existing services, until the dispute is resolved. Third, there are no set time lines for completing a pre-due process mediation. 32. My child does not qualify for special education. Can she get assistive technology through the school district? Some students with disabilities are not eligible for special education under the IDEA. They may still need assistive technology devices and services to take part in school activities, however. If your child is in this category, she may be covered under the anti-discrimination provisions of the ADA or Section 504 of the Rehabilitation Act. If your child is covered under the ADA or Section 504, she may get assistive technology as a reasonable accommodation. Does your child need the device or service to take part in education equally with other students? If so, she might get assistive technology to overcome functional limitations even if she does not need special education. If she uses a wheelchair, for example, she might need a specially designed desk to do her classroom work. Or, if she has a visual impairment, she might need a special computer monitor or software to enlarge characters on the screen. 33. What can we do if the school district does not give my child a reasonable accommodation? If the school district does not provide assistive technology as a reasonable accommodation, you can file a complaint with the Office of Civil Rights at the U.S. Department of Education. You, or your advocate, should write or call OCR and ask for a copy of the complaint form and instruction sheet for filing it. OCR's address and telephone number are: U.S. Department of Education Office for Civil Rights Region IX Office Old Federal Building 50 United Nations Plaza, Room 239 San Francisco, CA 94102 Telephone: (415) 556-4275; TDD (415) 437-7786 OCR will acknowledge the complaint within 15 days of receiving it. But, if it needs more information, OCR may take up to 45 days or longer to review the complaint. If it finds the school district is out of compliance, OCR will seek voluntary compliance within 60 days. If the school district does not comply, OCR will begin enforcement within 30 days. 34. Do school districts get special funding to provide assistive technology? The IDEA provides funding for special education in general, including assistive technology devices and services. Under Part G, the IDEA also provides grants for school districts to make assistive technology more available. 20 U.S.C. §§ 1461, 1462. Under California law, school districts must provide the equipment needed to implement your child's IEP. State law provides money for school districts to buy equipment required in IEPs for students with low-incidence disabilities (visual, hearing, or solely orthopedic impairments). That would include Braille equipment for blind students or communication devices for students with speech or hearing disabilities. School districts also have to buy equipment needed to provide related services such as occupational and physical therapy. Cal. Ed. Code § 56771; Cal. Gov. Code § 7575(d). Even though schools get specific funding for students with low-incidence disabilities, they still have to provide assistive technology for all eligible students. The school district cannot deny devices and services because your child does not meet the low-incidence disability criteria, or because the school district has already spent all its low incidence funds. 35. What is AB 3632/882? How does it affect assistive technology? Assembly Bill (AB) 3632/882 is a law that says state agencies (like the Departments of Education, Health Services, Social Services, and Mental Health): * Must provide services to children with disabilities; and * Must coordinate and share the resources (people and money) necessary to provide them with a FAPE. AB 3632/882 delegates responsibility for providing certain services to the agencies when consistent with their statutory obligations. For instance, California Children's Services (CCS) might be required to provide occupational therapy in order for an eligible child to use an assistive technology device. Children must meet the agency's criteria in order for AB 3632/882 to apply, which in the case of CCS means the child must need the therapy under the CCS medical necessity standard. School districts are responsible for children who are not eligible for AB 3632/882 services. Furthermore, if a child is eligible for services under AB 3632/882, it is the school district's responsibility to ensure that the child receives any services that are necessary. In the event that the other agency fails to provide a service, the school district is responsible for providing it and seeking reimbursement from the agency. (See PAI's "Special Education Rights and Responsibilities" manual, Chapter 9 for more on AB 3632/882.) 36. Can my child get assistive technology to participate in vocational education? Yes. All special education students can get career development or vocational education services. Depending on your child's age and ability level, these services may include grooming skills, social skills training, and general work behaviors in the classroom, workplace and community. 34 C.F.R. § 300.16(b)(10). Common assistive technology to modify the vocational education curriculum might include accessible desks, talking computer terminals, and sound or light signals. If your child needs modifications to take part in a regular vocational education program, be sure to include the modifications in your child's IEP. 37. What are early intervention services? How do they affect assistive technology? In 1986, PL 99-457 amended the IDEA. These amendments include early intervention services as part C of the IDEA. Early intervention services are available for children from birth through 36 months. They can include any necessary assistive technology. 34 C.F.R. § 303.12(D)(1). School districts must provide services to children with solely low-incidence disabilities (visual, hearing, severe orthopedic impairments, or any combination of these) from birth through age 36 months. Regional centers have responsibility for children who are regional center clients, or who are at risk of becoming developmentally disabled, through age 36 months. This includes those children who are also eligible for special education. An infant with Down Syndrome, for example, would receive part C services through the regional center. A child with only blindness would receive services through the school district. Regional center Part C services include early intervention services. 34 C.F.R. § 303.12. Protections and rules are similar to those that apply to children under the IDEA. Children age three and over who are eligible for special education will get services from the school district. Before a child reaches her third birthday, the school district must develop a plan for transition to preschool. The transition plan may include assistive technology. 34 C.F.R § 300.154. Available assistive technology under Part C is the same as under the IDEA. 34 C.F.R. § 303.12(d)(1). Assistive technology is part of the "supports and services necessary to enhance families' capacity to meet the developmental needs of the child." 38. How can a child obtain assistive technology through Part C? The process for getting services under Part C, including assistive technology, is the same whether your child receives services through the school district or through the regional center. Your child's Individual Family Service Plan (IFSP), which is similar to an IEP, must include assistive technology. Once your child is referred to the appropriate agency, that agency: * Appoints a service coordinator; * Completes an evaluation; * Conducts an IFSP meeting within 45 days; and * May provide interim services within the 45-day period. 34 C.F.R. § 303.321(e), 303.322(e), 303.342(a). 39. What should we do if the agency will not provide services? If you disagree with an agency about early intervention services (whether you disagree with the regional center or the school district) you may file for a due process hearing. To start the process, write to: Office of Administrative Hearings 560 J Street, Suite 300 Sacramento, CA 95814 (916) 445-4926 This process is similar to the special education hearing process. If both you and the agency agree, the hearing officer has 30 days to hold a mediation and a hearing, if necessary, and mail a written decision to the parties. 34 C.F.R. § 303.420 and following. During the hearing process, services must continue as set out in your child's IFSP. 20 U.S.C. § 1439(b). Endnote "EHLR" refers to the Education of the Handicapped Law Reporter. It is now called IDELR (Individuals with Disabilities Education Law Reporter) to reflect the change in the name of the Act. ---------- Chapter 10 MEDI-CAL Table of Contents Question ELIGIBILITY 1. Who is eligible for Medi-Cal? 10-1 2 How could I be eligible for Medi-Cal automatically? 10-2 3. What kind of links to a category or mandate would make me eligible for Medi-Cal? 10-2 4. How would I be eligible for Medi-Cal under a medically needy or medically indigent program? 10-5 5. Who is eligible for Medi-Cal under Federal Poverty Level (FPL) programs? 10-5 6. What is a transition Medi-Cal program? Who would be eligible? 10-6 7. What are the special Medi-Cal programs? How could I qualify for those programs? 10-6 8. How do Medicare-related programs work? How would I qualify? 10-6 INCOME AND RESOURCES 9. What counts as resources in figuring Medi-Cal eligibility? What are the resource limitations for Medi-Cal eligibility? 10-9 10. Can my disabled spouse receive Medi-Cal if our family income is too high to qualify for SSI? 10-10 11. I am eligible for Medi-Cal with a share of cost. What is a share of cost and how is income reported? 10-11 12. Can I use bills from other family members to meet my share of cost? 10-11 13. What if I am in a nursing facility with a share of cost? 10-11 14. Who authorizes services if my child is eligible for both California Childrens' Services (CCS) and Medically Needy Medi-Cal? 10-12 15. What if I agree to pay bills in an amount equal to my share of cost, but a relative or friend pays the bill? What if a regional center pays the bill? What if the doctor says I do not have to pay the bill? 10-13 PRIOR AUTHORIZATION, SERVICE LIMITATIONS, MEDICAL NECESSITY AND ACCESS TO SERVICES 16. What services and equipment does Medi-Cal provide? 10-13 17. What is the EPSDT program and how does it work? 10-14 18. What is the EPSDT medical necessity standard? 10-15 19. What kinds of services are not available as regular Medi-Cal services, but are available under EPSDT? 10-15 20. How can I get Medi-Cal authorization for EPSDT diagnostic or treatment services? 10-16 21. What does Medi-Cal consider to be medically necessary for the regular Medi-Cal (non-EPSDT) program? 10-17 22. How can I get prior authorization for a medical service or assistive device? 10-19 23. What can I do if prescribed medication is not on the Medi-Cal medicine list (Medi-Cal Formulary)? 10-20 24. I have both Medicare and Medi-Cal. Why won't Medi-Cal pick up the 20 percent Medicare doesn't pay? 10-21 25. What is durable medical equipment (DME)? 10-21 26. What are prosthetic and orthotic appliances? 10-21 27. When will Medi-Cal provide durable medical equipment, or prosthetic and orthotic appliances? 10-21 28. What limitations does Medi-Cal put on DME and medical supplies? 10-23 29. When will Medi-Cal provide a light weight or power wheelchair? 10-23 30. Will Medi-Cal provide DME if I live in a skilled nursing facility or intermediate care facility? 10-24 31. Will Medi-Cal pay for home alterations? 10-25 32. Will Medi-Cal pay for the self-help aids I need to complete activities of daily living? 10-25 33. Will Medi-Cal pay for augmentative and alternative communication devices (AAC)? 10-26 34. What special problems are encountered by individuals who are eligible for both Medicare and Medi-Cal? 10-27 35. If I disagree with Medi-Cal, what can I do? 10-28 36. What actions can I challenge in a fair hearing? 10-28 37. What can I do if Medi-Cal denied a device or service that my doctor prescribed because it was not a covered service? 10-29 38. How do I file for a fair hearing? 10-30 39. What happens to my Medi-Cal benefits during the appeal process? 10-31 40. What happens to my rights if I am in Medi-Cal managed care? 10-32 Attachment 10-35 Chapter 10 MEDI-CAL Medi-Cal is a state and federally funded program. It pays for medically necessary treatment services, medicines, durable medical equipment, and medical supplies. It covers people with disabilities who satisfy income and resource guidelines. As a condition of California receiving federal Medicaid funds for its Medi-Cal program, California must follow federal Medicaid requirements. You will probably find this chapter to be the most complex and confusing of any in this manual. You are in good company. Federal judges have also found the Medicaid system to be difficult to understand. An appellate court termed the Medicaid statutes "almost unintelligible to the uninitiated." Friedman v. Berger, 547 F.2d 724, 727, n. 7 (2nd Cir. 1976). The trial court in the same case found the Medicaid statutes to be "an aggravated assault on the English language, resistant to attempts to understand it." Friedman v. Berger, 409 F.Supp. 1226, 1226 (S.D.N.Y., 1976). Medi-Cal is a world populated by "Pickle People," "Pseudo-Pickle DACs" and "QMBs" (Quimbies). Most of the complexity is in the eligibility rules. If you are already eligible for Medi-Cal, that part is behind you. Now you can concentrate on whether the item of technology you need is a benefit of the Medi-Cal program. We start with eligibility, but if you are already eligible, you can skip to question 16. ELIGIBILITY 1. Who is eligible for Medi-Cal? There are many ways to qualify for Medi-Cal. You may qualify automatically if you are eligible for a "linked" program such as SSI or by meeting a separate set of factors. Depending on how you qualify, Medi-Cal may pay for all of your medical care, some of your care, or just part of another source of care. Medi-Cal eligibility: * May be automatic; * May be because you qualify under a special category or mandate; * May make you eligible after you pay a specified amount each month; * May provide services for a limited time; or * May pay part or all of the premiums for a Medicare program. This manual includes only a brief description of medical eligibility standards. For a more extensive discussion of eligibility, call 1-800-776-5746 and ask for PAI's Medi-Cal manual. 2. How could I be eligible for Medi-Cal automatically? People who get Supplemental Security Income (SSI) and In-Home Supportive Services (IHSS) automatically receive Medi-Cal. 3. What kind of links to a category or mandate would make me eligible for Medi-Cal? CalWORKS - Families who receive CalWORKS almost automatically get what is called Section 1931 Medi-Cal.[Note 1] Although you are not automatically eligible for Medi-Cal if you are eligible for CalWORKS, you apply for both at the same time. The Section 1931 Medi-Cal program covers people who are eligible for benefits under CalWORKS, and would have been eligible for AFDC benefits under the old AFDC program. SSI and Section (§) 1619 - If you get regular SSI, or you get SSI for people who work even though disabled (§ 1619 programs), you are eligible for Medi-Cal. * The § 1619(a) program provides cash benefits. * The § 1619(b) program provides benefits if your income is too high for cash benefits, but below the income level that would suspend your SSI status. Under § 1619(b), you are considered to be an SSI beneficiary. You get benefits (such as Medi-Cal) you would receive if you were receiving regular SSI. You can be eligible for § 1619(b) benefits if your countable income does not exceed the point at which your income will make you ineligible for SSI by more than California's average Medi-Cal expenditure for a person with a disability.[Note 2] Refugee Assistance: You could be eligible for categorically linked Medi-Cal if you get Cuban or Indo-Chinese refugee assistance or other assistance for refugee new entrants. Countable Income: Your child may be eligible for Medi-Cal if he is not eligible for SSI (or would not have been eligible for AFDC) and the reasons for ineligibility do not apply to Medi-Cal. * SSI counts a stepparent's income and resources to see if a child is eligible, Medi-Cal does not. * AFDC/CalWORKS deems both a stepparent's and a child's income to all family members, Medi-Cal does not. * Medi-Cal counts only the income of parents.[Note 3] Lost SSI: If your child used to get SSI, but is no longer eligible under the narrower definition of disability for children in the 1996 welfare reform laws, she will still qualify for Medi-Cal with no share of cost. The 1997 Balanced Budget Act (Public Law 105-33) protects her rights to Medi-Cal benefits. Pickle Program: You may be eligible for Medi-Cal with no share of cost under the Pickle program if: * You received SSI (Title XVI) in addition to Social Security Disability benefits at any time after April of 1977; and * You are no longer eligible for SSI because cost-of-living increases in your Social Security benefits were greater than the increases in SSI, so that your Social Security benefit is now too high for you to qualify for SSI; and * You meet all SSI eligibility requirements other than income.[Note 4] Disabled Adult Child (DAC): You may be eligible for Medi-Cal with no share of cost under a special program for people who receive Social Security Disabled Adult Child (DAC) benefits if: * You received SSI in July of 1987 or later; and * You first qualified for Title II DAC benefits, or for an increase in DAC benefits, on June 1, 1987, or after and your DAC benefits have increased so that they make you ineligible for an SSI grant. People in this category are known as pseudo-Pickle DACs - believe it or not. Disabled/Early Retirement/Widows/Widowers: If you are in this category, and you were eligible for SSI immediately before you received Social Security widow/widowers benefits, you are eligible for Medi-Cal as long as: * You are not eligible for Medicare Part A (See Medicare, Chapter 11 of this manual); * You were receiving SSI at the point your widow/widower benefits began; and * But for the widow/widowers benefits, you would be eligible now for SSI. 4. How would I be eligible for Medi-Cal under a medically needy or medically indigent program? Medically Needy: You are eligible to receive Medically Needy Medi-Cal if you meet the resource and other eligibility standards for SSI or the former AFDC program, but your income is too high. That includes persons who would otherwise qualify for SSI on the basis of age, blindness or disability. Often, there is a share or cost or required payment for services and equipment. Medi-Cal figures the payment on a sliding scale, based on your income. See question 11. 5. Who is eligible for Medi-Cal under Federal Poverty Level (FPL) programs? Children and pregnant women may qualify under one of three Federal Poverty Level (FPL) programs. The FPL changes every year. To find out what the FPL is at this time, call your Social Security office or county welfare department. Medi-Cal counts only income, not resources, in finding eligibility for these programs. Pregnant women and infants under age one: You and your baby would qualify under this program if your family income, after deductions, is at or less than 200% of the FPL. A pregnant woman counts as two people. Children from age one to age six: If family income, after deductions, is at or less than 133% of the FPL, the children qualify for Medi-Cal. Children age six but not yet 19: If the family income after deductions is at or less than 100% of the FPL, the children qualify for Medi-Cal. 6. What is a transitional Medi-Cal program? Who would be eligible? The transitional Medi-Cal program provides Medi-Cal benefits for a limited time. You would quality for transitional Medi-Cal if: * You qualified for Medi-Cal related to CalWORKS for three of the last six months; and * You are no longer eligible for Medi-Cal. You would be eligible for transitional Medi-Cal benefits for up to 12 months if you lost Medi-Cal because of earned income or because of marriage or family reunification. If you lost Medi-Cal because you are receiving spousal or child support, you could get transitional Medi-Cal benefits for up to four months. 7. What are the special Medi-Cal programs? How could I qualify for those programs? Medi-Cal has special programs if you need (1) kidney dialysis or (2) parenteral hyperalimentation (intravenous nutrition), but you do not otherwise qualify for Medi-Cal. California Welfare & Institutions (Welf. & Inst.) Code §§ 14140 through 14144.5. Cal. Code Reg. Title 22 §§ 50801-50831. In either program you would pay an amount equal to 2% of your nonexempt annual worth or 1% of your nonexempt annual worth if working. The dialysis program requires that you have an SSI eligible condition. The parenteral hyperalimentation program does not. There is also a special program for persons who have tuberculosis. Welf. & Inst. Code § 14005.20. You would apply for this program through a clinic that treats tuberculosis. 8. How do Medicare-related programs work? How would I qualify? If you qualify for Medicare, Medi-Cal has four programs to help pay your Medicare premiums. (1) Qualified Medicare Beneficiaries (QMB or Quimbies): Under this program, Medi-Cal will pay Medicare Part A or Part B premiums, and deductibles and co-insurance required under Medicare. You would qualify as a QMB if: * Your resources are $4,000 or less ($6,000 or less for a couple); and * Your countable family income is not above 100% of the FPL ($687 per month for one person and $922 for couples in 1999). In figuring countable income to see if you qualify as a QMB, you have deductions for children and an ineligible spouse just as you would have under SSI. (2) Qualified Disabled Working Individual (QDWI) program : If you lost Medicare because of work, Medi-Cal will pay your Part A premiums if: * You are still disabled; * You are still eligible for Medi-Cal under a work incentive program;[Note 5] * You are under age 65; * You are not eligible for any other Medi-Cal program; * Your resources are within the resource amount for a QMB; and * You have countable earned income under 200% of the FPL. You would still have to pay your own Part B premiums. See Medicare, Chapter 11 of this manual. You figure countable income the same way you figure countable income under the SSI program. You may deduct Impairment Related Work Expenses (IWRE) and 50% of earned income. [Note 6] Thus, if you are single, and you have no IRWE deductions and no unearned income, you would qualify if your gross earned income were $2,829 a month or less in 1999. (We based this figure on 200% of $1,374 - the 1999 monthly FPL. Check with your county welfare department or social security office to find out what the FPL is now.) (3) Specified Low Income Medicare Beneficiaries or SLMB: Medi-Cal will pay your; Medicare Part B premiums if: Your income is at or below 120% of the FPL; and You meet the same resource limitations as for a QMB. You would want this program only if you do not otherwise qualify for the QMB program or for no-share-of-cost Medi-Cal. (4) Qualified Individual Programs (QI-1 and QI-2): Under the QI-1 program, Medi-Cal will pay your Part B premium if your countable income is below 135% of the FPL. Under the QI-2 program, Medi-Cal will give you a very small grant toward your Part B premium if your countable income is below 175% of the FPL. INCOME AND RESOURCES 9. What counts as resources in figuring Medi-Cal eligibility? What are the resource limitations for Medi-Cal eligibility? Resources are cash or anything you can convert to cash for your maintenance and support. However, the following resources are exempt (do not count): * The home you live in; * Money you get from the sale of your home or other real property used to purchase a home (for six months); * Other income-producing real property or a trust deed from sale of your property, but not more than $6,000 in assessed value (not the same as face value); * One motor vehicle;[Note 7] * Clothing and household goods; * Musical instruments; * Wedding and engagement rings, heirlooms, and any other item of jewelry with a market value of $100 or less; * Real and other property used for self-support;[Note 8] * Burial funds,[Note 9] trusts, or contracts with a value of $1500 or less; burial plots; * Retirement accounts (IRA, Keogh, tax-sheltered annuity) of your spouse or parent are exempt (but the cash value of your own accounts counts against the resource limitation); * Recreational items (except boats, trailers, and campers) unless the item is a principal residence; * A child's savings from his or her own earnings; * Cash or convertible resources - a single person may have $2,000 ($3,000 under the Section 1931 Medi-Cal); a couple or a two-person household may have $3,000; a family of 10 or more people can have up to $4,200. The Skilled Nursing Facility (SNF) Model Waiver program waives certain resource and income limitations. The SNF program bases its waivers on community income or income deemed from a spouse or parent. It allows you to receive limited Medi-Cal services at home if you would qualify for nursing facility care. [Note 10] A child or an adult may be eligible for this program even if income and resources exceed Medi-Cal limits. 10. Can my disabled spouse receive Medi-Cal if our family income is too high to qualify for SSI? Your disabled spouse may qualify under the ABD Medically Needy Medi-Cal program. In addition, if your disabled spouse is in a medical facility paid for by Medi-Cal, but would not be eligible for Medi-Cal at home because of family income or resources, your spouse may qualify for Medi-Cal under the Model Waiver program (see answer to prior question) if he returns home. 11. I am eligible for Medi-Cal with a share of cost. What is a share of cost and how is income reported? If you qualify for the Medically Needy program, you receive Medi-Cal with a share of cost or required payment. Medi-Cal bases the share of cost on your family income. A share of cost is the amount Medi-Cal requires you to pay each month, or to agree to pay in the future, before Medi-Cal begins to pay. You may meet your share of cost either by paying for, or by agreeing to pay for, medical goods and services. You can meet your share of cost by paying for services or things Medi-Cal does cover or does not cover. For instance, you could pay for occupational therapy, which Medi-Cal would not cover: (1) under its stringent medical necessity standards; or (2) under its two-visits-a-month service limitation. In addition, you may meet a share of cost by paying off or paying down an old medical bill. You may use a bill only once. However, if the bill is more than the share of cost, you can carry the excess over into other months. That is, you may pay part of what you owe in one month, and more of what you owe in the next month. You can meet your share of cost with services that Medi-Cal does not cover -- such as over-the-counter medications and supplies your doctor ordered. Ask your doctor to write the order on a prescription form. Pay for the item at the pharmacy window so that what you paid can be entered against your share of cost. 12. Can I use bills from other family members to meet my share of cost? Yes. The medical expenses of ineligible family members do count. 42 CFR § 435.831(b). For instance, in a family where the children are eligible but not the parents, the parents' medical bills will reduce the share of cost. 13. What if I am in a nursing facility with a share of cost? When you are in a nursing facility, you may use your share of cost to pay for services and equipment other than nursing facility care. The services or equipment must be consistent with the plan of care ordered by your physician. [Note 11] For instance, you may be able to satisfy your share of cost by making installment payments on a needed wheelchair instead of trying to get Medi-Cal to pay directly. 14. Who authorizes services if my child is eligible for both California Childrens' Services (CCS) and Medically Needy Medi-Cal? Under Medically Needy Medi-Cal, your child will have a monthly share of cost before Medi-Cal begins to pay. Under CCS your child will have an annual share of cost for treatment services. There is no cost, and therefore no share of cost, for diagnostic services, for occupational or physical therapy, or for other services provided through a CCS Medical Treatment Unit (MTU) attached to a public school. After your child is found eligible for Medi-Cal through the county welfare office, CCS will handle the case management for treatment of physical disabilities. This means that CCS, not Medi-Cal, will review prior authorization requests when they are: (1) for something related to the CCS eligible condition; and (2) for something that CCS provides. There are unresolved questions about coordinating benefits and rights when a child is covered by both Medi-Cal and CCS: (1) How CCS & Medi-Cal coordinate fair hearing procedures; and (2) How CCS and Medi-Cal coordinate CCS payment obligations and Medi-Cal share of cost obligations. We find that families with earned income, whose children meet the SSI disability standard so that they would qualify for ABD Medi-Cal, are better off establishing their CCS eligibility through Medi-Cal rather than independently through CCS. This is because: * Medi-Cal will cover all your child's health care needs, not just those related to the qualifying handicapping condition, * Under Medi-Cal, you can use unpaid bills from other months to meet the share of cost in a month you need services; and * You can deduct insurance premiums in figuring your share of cost under Medi-Cal, something you cannot do under CCS. 15. What if I agree to pay bills in an amount equal to my share of cost, but a relative or friend pays the bill? What if a regional center pays the bill? What if the doctor says I do not have to pay the bill? You meet your share of cost by incurring an obligation to pay. It does not matter if a relative, a friend, or the regional center pays the bill afterwards. If the regional center reimburses you for your Medi-Cal share of cost, there are no income consequences. This is assistance with state funds based on need, which Medi-Cal does not count as income. However, if your relative or friend gives you the money instead of paying the bill directly, you must count that money as income. PRIOR AUTHORIZATION, SERVICE LIMITATIONS, MEDICAL NECESSITY AND ACCESS TO SERVICES 16. What services and equipment does Medi-Cal provide? Federal law requires that Medi-Cal provide certain services. These services include: * Physicians' services; * Inpatient hospital care; * Outpatient hospital care; * Laboratory & x-ray services;* * Skilled nursing facility services for persons 21 and older;* * Home health services for persons 21 and older;* * Rural health clinic services; and * EPSDT services for children under age 21. California has chosen to provide certain other services. Having agreed to provide them, California must do so in accordance with federal law and regulations. Those non-mandatory services which are most important to the provision of assistive technology include: * Rehabilitation services;* * Physical therapy;* * Occupational therapy;* * Speech therapy;* * Audiology;* * Services provided by intermediate care facilities for the developmentally disabled;* * Hemodialysis;* * Emergency and essential diagnostic and restorative dental services;* * Home health care services;* * Prosthetic and orthotic devices and eyeglasses;* * Hearing aids;* * Durable medical equipment;* * Medical supplies; and * Transportation to doctor visits and to other medically necessary covered services.* Your service provider must get Medi-Cal approval before providing the "*" services. To get approval, the provider completes a Treatment Authorization Request (TAR) and submits it to Medi-Cal. Medi-Cal then has 30 calendar days to approve or deny the TAR. If Medi-Cal does not approve or deny it or ask for more information within 30 days, the law says the TAR is approved. Welf. & Inst. Code § 14103.6. Medi-Cal puts assistive technology in a number of categories. For example it may be called medical supplies, durable medical equipment, or a prosthetic device. Medi-Cal often places "utilization controls," or limits, on its services. For example, Medi-Cal limits physical and occupational therapy visits to two per month. 17. What is the EPSDT program and how does it work? The Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program is a federal Medicaid requirement. It is the Medicaid/Medi-Cal program for people up to age 21. States must follow EPSDT requirements in order to receive federal Medicaid money. EPSDT does not limit Medi-Cal services like the adult program. That means EPSDT recipients may, based on medical necessity, receive more benefits than adults. There are two parts to the program: (1) screening and (2) diagnosis and treatment. Screening services include periodic screens (like scheduled "well baby" examinations) and interperiodic screens (like doctor visits for follow-up evaluations). 42 U.S.C. § 1396d(r)(1)(A). In California, Medi-Cal often provides periodic screens under the Child Health and Disability Prevention Program (CHDP). [Note 12] EPSDT says that services found to be necessary in a screen must be provided. Ordinarily, states have the option of not covering certain services in their state plan. However, under EPSDT, states must cover all optional services. 42 U.S.C. § 1396d(r)(5). 18. What is the EPSDT medical necessity standard? The definition of medical necessity under EPSDT is broader than the definition for regular Medi-Cal. Children eligible for Medi-Cal have the right to "necessary health care, diagnostic services, treatment, and other measures ... to correct or ameliorate defects and physical and mental illnesses and conditions discovered [Note 13] by the screening services, whether or not such services are covered under the state plan." 42 USC § 1396d(r)(5); 22 C.C.R. § 51184(b). 19. What kinds of services are not available as regular Medi-Cal services, but are available under EPSDT? EPSDT includes services beyond the visit or treatment limits under regular Medi-Cal. For example, Medi-Cal allows only two physical therapy visits a month for adults, but that limitation does not apply for children. Although Medi-Cal covers only short visits under its home health services, shift nursing and other services are available to children. In-home behavior management, behavior aides and private duty nursing are also available to children, even if those services are not available to adults. EPSDT may require that Medi-Cal provide services in less restrictive and more natural environments when the treating physician believes that is medically necessary, even though Medi-Cal normally provides those services only in institutions. Technology should be more readily available under EPSDT as well. 20. How can I get Medi-Cal authorization for EPSDT diagnostic or treatment services? Your EPSDT TAR must explicitly say that you are submitting it pursuant to EPSDT. It must include the following information: * Primary diagnosis and other important diagnoses; * Prognosis; * Date of onset of the illness or condition, and origin if known; * Impairment caused by the illness or condition; * Specific types of services to be rendered by each discipline with physician's prescription where applicable; * The goals to be achieved by each service and anticipated time for achievement of goals; * The extent to which health care services have been previously provided to address the illness or condition, and the results; and * Any other documentation necessary to show that the services are needed. We recommend that any TAR documentation include headings that track these categories. They are found in regulation 22 C.C.R. § 51340(d). 21. What does Medi-Cal consider to be medically necessary for the regular Medi-Cal (non-EPSDT) program? State law defines medically necessary as those services, medicines, supplies and devices necessary to protect life, to prevent a significant illness or disability, or to alleviate severe pain. Welf. & Inst. Codes §§ 14059.4, 14133.3. Medically necessary services include rehabilitation and other services needed to attain or retain the capability for normal activity, independence or self care. Medi-Cal will not pay for treatment, medicines or devices that it considers experimental. 22 C.C.R. § 51303(g). Medi-Cal will cover, with prior authorization, services that are investigational, provided they meet the criteria in 22 C.C.R. § 51303(h). [Note 14] What may appear to be "investigational" may not be. If the treatment is generally accepted by health care professionals who treat the disability, then it is not "investigational." Federal courts have said that your treating physician should decide the question of medical necessity, not Medi-Cal personnel or even Medi-Cal physician consultants. Case law favors the treating doctor to determine medical need. Weaver v. Reagan, 886 F.2d 194, 200 (8th Cir. 1989); Pinneke v. Preisser, 623 F.2d 546, 550 (8th Cir. 1980). But you may still need to go to a hearing to challenge a denial. See questions 35-40. In some cases Medi-Cal applies a different medical necessity standard. Children: The restrictive Medi-Cal definition of medical necessity does not apply to treatment of children's health needs through the EPSDT program. The applicable definition is the federal EPSDT standard: diagnostic or treatment services which are medically necessary "to correct or ameliorate defects and physical and mental illness and conditions discovered" during a regular (periodic) screen or an interperiodic screen. 22 C.C.R. § 51184(b). Medi-Medis: Individuals who are eligible for both Medicare and Medi-Cal, known as Medi-Medis, may use the Medicare standards of medical necessity. Medicare defines medically necessary more broadly than does Medi-Cal. For example, Medi-Cal will pay for cataract surgery for loss of vision in one eye only if both eyes are affected; Medicare will pay for cataract surgery to restore sight even if only one eye is affected. People in nursing facilities: Federal law says that people who are in long-term care facilities [Note 15] are entitled to "the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care." 42 CFR § 483.25 This, too, is broader than California's medically necessary standard for Medi-Cal. Dual eligible (CCS & Medi-Cal) children: Children who are covered by both Medi-Cal and CCS can have CCS evaluate TARs for services related to their physically handicapping condition using its own definition of medical necessity. CCS uses a common sense medical necessity standard, providing services to minimize the long-term disabling effects of an eligible condition. CCS should act as case manager for services such children need because of their CCS-eligible condition. CCS should ask Medi-Cal to provide services when necessary. 22. How can I get prior authorization for a medical service or assistive device [Note 16] Your doctor or medical provider must submit a TAR form that describes why you need the requested services, medicine or device. The TAR and information attached to it must explain why the service is necessary to protect your life, to prevent illness or disability, or to relieve severe pain. The provider must submit complete medical justification with the TAR form, because that is the only thing the Medi-Cal analyst reviews. Your doctor should show medical necessity in a supporting report submitted with the TAR. The medical documentation has to stand alone unless the TAR is for medical transportation. The report should: * Include information about your disability and functional limitations; * Establish why the requested device is necessary to increase your independence, safety or functional abilities, or to alleviate the impact of disability; * Explain why the recommended device is the least expensive one that will adequately meet your needs; * Describe alternatives considered and rejected, and why; * Attach any written material that describes the requested device, it's use; and * Document any cases where Medi-Cal (or other private health benefit plans or Medicare) has bought a similar device. If the TAR is for a custom or power wheelchair, or other durable medical equipment, it is particularly important that the report be detailed. In reviewing denied TARs for assistive devices and durable medical equipment, we often find that there is not enough information to enable us to represent the person in a Medi-Cal fair hearing. The doctor usually has to resubmit the TAR with more information. Sometimes Medi-Cal then approves the TAR without the need for a fair hearing. Medi-Cal must return the TAR form to your provider, with an approval or denial and the reason for the denial or a request for more information, within 30 days. If within 30 days after receiving, it Medi-Cal does not do one of these things, the TAR is deemed approved by operation of law. Welf. & Inst. Code § 14103.6. If Medi-Cal denies your TAR, it must send you a written notice that explains why it denied the authorization and with information about your appeal rights. If you need the requested device or service on an emergency basis, such as repair of a power wheelchair, the provider can make the initial request over the phone. If Medi-Cal approves over the phone, the provider will then send in a written TAR. 23. What can I do if prescribed medication is not on the Medi-Cal medicine list (Medi-Cal Formulary)? If the medication you need is not on the formulary, Medi-Cal can approve it by prior authorization. Have your treating doctor write a letter explaining: * Why none of the drugs or items on the formulary meet your needs; * Why you need the particular drug or item to protect your life, to prevent significant illness or disability, or to alleviate severe pain; and * Why there is a risk to your life or a risk of significant illness or disability if you don't get the prescribed drug. A pharmacist can phone in or fax the request for authorization with the justification letter. For drug TARs Medi-Cal must provide "a response by telephone or other means of telecommunication within 24 hours of the receipt of an authorization request." Welf. & Inst. § 14133.37(a). If you need the medicine right away, you may pay for the medicine, and the pharmacist will reimburse you when Medi-Cal pays the pharmacy. If it is an emergency, the pharmacist can give you 72 hours worth of medication. Welf. & Inst. § 14133.37(b). If Medi-Cal denies the request, you have the right to a fair hearing to challenge the denial. 24. I have both Medicare and Medi-Cal. Why won't Medi-Cal pick up the 20 percent Medicare doesn't pay? People who are eligible for both Medicare and Medi-Cal are generally referred to as Medi-Medi's. Medicare pays 80 percent of the approved cost of a covered benefit. If you are covered by both Medi-Cal and Medicare, you look to Medi-Cal to pick up the 20 percent differential. However, Medi-Cal will not supplement Medicare above what Medi-Cal would pay if it were the only source of payment. For instance, if Medicare says $100 is a reasonable cost for a procedure, it pays $80. If Medi-Cal says that it would not pay more than $90 for the procedure, it will pay only $10 after Medicare pays $80. 25. What is durable medical equipment (DME)? California regulations define durable medical equipment as equipment prescribed by a licensed practitioner to meet medical equipment needs of the patient. Title 22 C.C.R. § 51160. This is a very broad definition. It includes equipment such as canes, crutches, walkers, oxygen therapy equipment, basic and custom wheelchairs, and other devices. Title 22 C.C.R. § 51521. 26. What are prosthetic and orthotic appliances? Prosthetic and orthotic appliances are those appliances prescribed by a physician, dentist or podiatrist to restore function or replace body parts. 27. When will Medi-Cal provide durable medical equipment, or prosthetic and orthotic appliances? In almost all instances Medi-Cal will provide durable medical equipment, and prosthetic or orthotic appliances, only after prior authorization (submission and approval of a TAR). However, if an item is on the Medi-Cal list of approved devices, you do not have to submit a TAR for: * Prosthetic devices or services that cost less than $500; * Orthotic devices or their repair if the cost is less than $ 250; Welf. & Inst. Code § 14132.765. * DME if it costs less than $100; and * Repair and maintenance of DME if the cost does not exceed $250. Title 22 C.C.R. § 51321. If an item is not on an approved list, Medi-Cal requires prior approval, regardless of cost. In all instances, the item must be medically necessary. Medi-Cal states: "Durable medical equipment items are covered as medically necessary only to preserve bodily functions essential to activities of daily living or to prevent significant physical disability." Medi-Cal Policy Statement 82-21. California does not claim that its list of DME includes all of the equipment it will buy. However, California seems unwilling to buy some devices that it should provide as DME such as environmental control devices. Further, Medi-Cal often questions whether the requested equipment is the least expensive way to meet your needs. Medi-Cal sometimes argues that you have not shown medical need unless the device is necessary for you to get medical care. Medi-Cal argues that a device used for social or educational purposes is not medically necessary. This is a common argument when you request a device that Medi-Cal does not normally acknowledge as a benefit. However, it is not consistent with Welf. & Inst. Code § 14059, which sets out the purposes of Medi-Cal services: ...for conditions that cause suffering, endanger life, result in illness or infirmity, interfere with capacity for normal activity, including employment, or for conditions which may develop into some significant handicap. (Emphasis added.) Medi-Cal does not make such an argument when considering other DME such as wheelchairs. These items, of course, may also serve social or educational purposes as well as help with trips to the doctor. The key to demonstrating medical necessity is to show that the proposed device is the most reasonable treatment for your disability. Whether you need it to help you to walk, speak, or perform other activities of daily living, the DME does not just help you get medical services. 28. What limitations does Medi-Cal put on DME and medical supplies? DME and medical supplies always require the prescription of a qualified provider. Medi-Cal does not cover household items, items not used primarily for medical care, and articles of clothing - even if they meet a legitimate medical need. If a household item will serve your medical needs, Medi-Cal will not authorize a medical device. Medi-Cal does not cover air conditioners, air filters, food blenders, orthopedic mattresses or automobile modifications. [Note 17] Medi-Cal limits authorization for DME to the lowest-cost item that will adequately serve your medical needs. Cal. Code Regs., Title 22 § 51321. 29. When will Medi-Cal provide a light weight or power wheelchair? Medi-Cal will only pay for the least expensive item that meets your medical needs. Therefore, Medi-Cal will buy a lightweight or power wheelchair only when you can justify it. Essentially, Medi-Cal will buy lightweight or ultra lightweight chairs only if you do not have the arm strength to self-propel a heavier chair. Medi-Cal Policy Statement 88-11. Sports chairs are not a Medi-Cal benefit. If you lack the upper arm mobility or strength to operate a manual chair, Medi-Cal may approve a power wheelchair. The type and nature of the power wheelchair and the attachments or modifications Medi-Cal may approve will be based on your medical needs. You must show that your need for power or modifications is central to your mobility and necessary for you to perform daily living activities. Medi-Cal considers mobility inside and outside your home a basic activity of daily living. If you ask only for social, educational or job placement needs, Medi-Cal will deny your request. Medi-Cal Policy Statement 82-21. In our opinion, however, Medi-Cal cannot rely on its policy statement when the statement conflicts with state and federal Medi-Cal/Medicaid statutes and regulations. Medi-Cal has been reluctant to buy lightweight or power wheelchairs for people who live in long-term care facilities. Medi-Cal's theory is that staff is available to push you where you want to go. Medi-Cal does not consider the limitation this places on your ability to choose activities or companions. It does not consider your inability to be mobile in the community, even though that is a factor in determining whether Medi-Cal will buy a power chair for you if you live in your own home. This policy is questionable. If you live in a long-term care facility, you have a right to services and equipment that will maximize your mental, physical and social well being under the Nursing Home Reform Act. Thus you are entitled to services that enhance your mobility. See discussion in question 30, below. When residents of nursing facilities have had strong advocacy, Medi-Cal has agreed to buy power chairs. 30. Will Medi-Cal provide DME if I live in a skilled nursing facility or intermediate care facility? Federal regulations require that skilled nursing facilities, intermediate care facilities (long term care facilities) and intermediate care facilities for persons with mental retardation provide some necessary technology for their residents. Long term care facilities must provide residents with the services they need to attain and maintain the highest possible mental and physical functional status, as defined by the comprehensive assessment and plan of care. 42 C.F.R. § 483.25. Residents must receive services that will enhance their ability to "use speech, language or other functional communication systems", 42 C.F.R. § 483.25(a)(1)(v), and their "ability to transfer and ambulate", 42 C.F.R. § 483.25(a)(1)(ii). Available devices should include wheelchairs, medical equipment, some prosthetics, and even some augmentative and alternative communication devices. Long term care facilities must provide supportive services including speech, occupational and physical therapy and audiology services. Welf. & Inst. Code § 14132(c). Intermediate care facilities for the developmentally disabled (ICF/DD) must provide active treatment. This includes necessary assistive technology such as communication aids, 42 C.F.R. § 483.470(g)(2), and mechanical supports, 42 C.F.R. § 483.440(c)(6)(iii). ICF/DD's must also provide speech, occupational and physical therapy, and audiology services. Welf. & Inst. Code § 14132(c). Long term care facilities and ICF/DD facilities only have to provide common equipment and devices, not unusual or customized devices. Regulations provide that Medi-Cal will provide DME if the equipment is necessary for your continuous care, or to meet your unusual medical needs. Medi-Cal may authorize canes, crutches, wheelchairs, and walkers when you need a custom made or modified item to meet your unusual medical needs, and the needs are expected to be permanent. Medi-Cal may authorize suction and positive pressure apparatus when you will use the item continuously or when you must have it immediately available for one month or more. 22 C.C.R. § 51321(g). Medi-Cal also says it will pay for such items as alternating pressure mattresses, portable aspirators, portable gas oxygen systems and variable height beds. 22 C.C.R. § 51511(c). You should ask the facility to provide necessary devices. If the facility refuses, you should be prepared to ask your doctor to submit a TAR to Medi-Cal for the device. Do not let the facility and Medi-Cal bounce you back and forth. If Medi-Cal says the facility is responsible for purchase of a device, tell Medi-Cal to make sure the facility buys it for you. Finally, residents of nursing facilities and ICF/DD facilities have a right to passes for overnight visits with family, friends, etc. The regulations and laws do not specifically say that you have a right to equipment that goes with you when you visit family, but that seems to be required by the intent of the Nursing Reform Act. 31. Will Medi-Cal pay for home alterations? No, Medi-Cal will not pay for home alterations through the regular Medi-Cal program, except when necessary to provide home dialysis services. Medi-Cal will pay for some necessary alterations through its Nursing Facility waivers if you qualify medically for nursing facility care. 32. Will Medi-Cal pay for the self-help aids I need to complete activities of daily living? Yes. Medi-Cal will pay for self-help aids essential to the performance of common activities of daily living. Such aids include specially designed eating utensils, utensil holders, buttoning aids, raised toilet seats, flexible shower hoses, standing tables, and many other items. Since Medi-Cal does not list them as DME, they all require prior approval, regardless of cost. Medi-Cal Policy Statements 49-73 & 73-11. 33. Will Medi-Cal pay for augmentative and alternative communication devices (AAC)? Medi-Cal recipients can now get augmentative and alternative communication (AAC) devices and services through the Medi-Cal program. On August 6, 1996, Medi-Cal issued a policy acknowledging the medical advantages of speech technology and has since then begun approving requests for AAC. This new benefit is available to Medi-Cal recipients who have been diagnosed with a significant communication disorder. Recipients can get these devices and services the same way as all other speech and language therapy services. In order to be approved, TAR's for AAC devices must include a medical assessment showing: (1) the recipient's condition, and (2) the benefits he/she will realize through use of an appropriate device. Under Medi-Cal's new policy, an AAC device is a therapy option that a speech therapist selects as part of a patient's treatment. Coverage extends to all three phases of access to AAC - (1) initial assessment, (2) device acquisition, and (3) services such as setup and training after delivery. A speech and language therapist, licensed by the State of California, must conduct the initial assessment. As part of a treatment plan, a speech therapist needs to consider a patient's physical impairments in selecting appropriate speech equipment, the assessment must include other health care professionals such as occupational and physical therapists. A general practitioner must prescribe the device before Medi-Cal will authorize a treatment request. The assessment report must cover three distinct areas. The first section must include the following information about the patient: * medical diagnosis, * significant medical history, * sensory and receptive communication impairments, * current communication abilities and limitations, * physical abilities and limitations, * how the beneficiary will use AAC given physical abilities and limitations, * current and future communication needs, * communication partners, * communication environments, and * any previous treatment of communication problems. The second part must contain specific information about the device including: * vocabulary requirements, * representational systems, * display organizations, * message characteristics, * access techniques, * portability and durability, * cost, and * whether the beneficiary has had a trial period to use the recommended device. The last portion of the assessment is (1) the doctor's prescription and (2) the therapist's treatment plan. In the therapist's plan, he/she describes: * how long the beneficiary will need the device, * how much, how long, and why the beneficiary will need any related services, * short-term and long-term goals, * how to measure the beneficiary's progress toward those goals, and * what service providers the beneficiary will need to carry out the plan. Medi-Cal will also pay to modify, repair and replace the devices it authorizes. To get these services, the recipient must submit a separate treatment authorization request with adequate justification. 34. What special problems are encountered by individuals who are eligible for both Medicare and Medi-Cal? Before October 1990, people who qualified for both Medicare and Medi-Cal (known as Medi-Medis) had many problems getting reimbursement for DME. Medi-Cal said you had to go to Medicare first for funding of DME. Unfortunately, Medicare will not provide prior approval for DME. In addition, the amount that Medicare authorizes for many items of DME is very low. Medi-Cal would only pay the reasonable rate established by Medicare, even though it was often much lower than what Medi-Cal would otherwise pay. In October 1990, in the case of Charpentier v. Kizer, the Federal District Court for the Eastern District of California ordered Medi-Cal to stop this procedure for buying DME. Medi-Cal must treat Medi-Medis as if they only had Medi-Cal. Medi-Cal must use a prior approval procedure and its reimbursement rates. If you run into a problem like that described above, tell the Medi-Cal field office that they must follow Charpentier. If that does not solve the problem, get a lawyer. Legal Aid organizations and disability rights organizations should all be familiar with Charpentier. 35. If I disagree with Medi-Cal, what can I do? You have the right to challenge any decision Medi-Cal makes or doesn't make that you believe to be wrong. This could be denial of your request for DME, or denial of the repair or servicing of a device, or refusing to continue equipment rental. You challenge Medi-Cal decisions by asking for a fair hearing. You do not have to have a written notice of action to request a fair hearing, but you should ask for one anyhow because it will tell you why Medi-Cal has denied your request. 36. What actions can I challenge in a fair hearing? In a fair hearing, you can challenge Medi-Cal's actions in any or all of the following areas: * Refusal to process or delay in processing your Medi-Cal application; * Determination that you are not eligible for Medi-Cal, or are no longer eligible for Medi-Cal; * Amount of your monthly share of cost; * Denial of a prior authorization request (be sure to check the packet you sent to Medi-Cal to see if you want to resubmit with more complete documentation instead of appealing; and/or * Termination of a service, such as medical transportation to receive dialysis. 37. What can I do if Medi-Cal denied a device or service that my doctor prescribed because it was not a covered service? First: Review the request or TAR that the doctor sent to Medi-Cal requesting prior authorization. If the TAR does not include a letter from the treating doctor, or other documents explaining why the service or device is medically necessary, have the doctor send the TAR again and include a letter or documents and any records that support your need for the item requested. Second: If Medi-Cal denies the prescription despite the submission of a TAR with documentation of medical necessity, you will have to file for a fair hearing to challenge the denial. Third: As soon as you get an acknowledgement of your fair hearing request with the hearing number, write to the Medi-Cal field office that denied the TAR. The address is on the TAR denial notice. Ask to review the file and the authority Medi-Cal is relying upon. Your letter might follow the example attached to the end of this chapter. Some of the Medi-Cal policies you may ask for are Field Instruction Notices (FINs), Policy Statements, and Operating Instruction Letters (OILs). These are important because they explain how the Medi-Cal program defines medical necessity when they approve or deny devices or services like the ones you requested. For instance, some FINs set out the rules the Medi-Cal program will apply when asked to purchase an electric wheelchair. The FINs, Policy Statements and OILs are not regulations but guidelines. The Administrative Law Judge who will hear the case does not necessarily have to follow them. Fourth: If you get copies of relevant material, show them to your treating doctor. The doctor may need to explain the documents submitted with the TAR. It may be necessary for the doctor to translate the documents into simple language. If the Medi-Cal field office does not give you access to the information, call the 800 number on the hearing request acknowledgement and ask them to explain how to have a subpoena duces tecum (pronounced sah-PEE-na due-ses TEK-um) issued. That is a subpoena that orders Medi-Cal to bring the documents to the hearing. Ask for time to go over the materials at that time. 38. How do I file for a fair hearing? To file for a fair hearing fill out and mail the reverse side of the Medi-Cal notice-of-action form. Or, you can send a letter to: Chief Administrative Law Judge State Hearings Division Department of Social Services 744 P Street Sacramento, CA 95814 RE: Medi-Cal Fair Hearing Your Name Your State Medi-Cal number or Social Security number The letter should include a general statement about why you want a hearing. For instance: * The county is taking too long to process your Medi-Cal application. * You are eligible for Medi-Cal. * You need an electric wheelchair because you are too disabled to use a manual wheelchair. * You need an electronic speech device because you cannot communicate any other way. You have 90 days from the date of the Medi-Cal action to ask for a fair hearing. You can also file a hearing request by telephoning (800) 743-8525, but the line is almost always busy. You can fax your appeal to: (916) 229-4110. 39. What happens to my Medi-Cal benefits during the appeal process? If you ask for a fair hearing within 10 days of the date of Medi-Cal's written notice, current benefits will continue until an Administrative Law Judge issues a hearing decision. If you receive a notice terminating kidney dialysis, chemotherapy or radiation treatments, transportation, in-home medical care services, or a stay in a skilled nursing facility or an intermediate care facility, benefits will continue until the hearing decision if you file for a fair hearing within 10 days of the notice date or before the benefits end. In certain circumstances, Medi-Cal services can continue pending a hearing decision when Medi-Cal refuses to reauthorize the services. Some non-acute hospital services can continue pending a hearing decision (or pending completion of the request for reauthorization if earlier) if: * Medi-Cal receives the reauthorization TAR within 10 days after the expiration of a prior authorization; and * You submit a hearing request within 10 days of the post mark on the denial notice, or before the prior TAR expires, whichever is later. The following services are included in this category: * Long-term care (SNF, ICF and subacute); * Chronic hemodialysis (including all related services such as transportation); * In-home medical care services (and all related services); * Skilled Nursing Facility waiver services (and all related services); * Model Community-Based waiver services (and all related services); * All other non-acute services when your treating doctor substantiates on the TAR that services should continue because the treatment goal on the original TAR has not been met. If Medi-Cal denies a request to reauthorize acute care that has been approved for at least five days, and a treating doctor determines that you cannot be discharged from the hospital because you still need that level of care, Medi-Cal funding at the acute care rate can continue pending a hearing. Medi-Cal will have the notice of denial delivered to you personally by the first working day following the denial--unless a treating doctor says the notice should be delivered by other means for health reasons. Medi-Cal coverage of the acute care services will continue pending the hearing if you ask for a fair hearing within 10 days of the notice denying reauthorization. See Cal. Code Regs., Title 22 §§ 51014.1, 51014.2. 40. What happens to my rights if I am in Medi-Cal managed care? Managed care under Medi-Cal may come about through a federally approved waiver of your federal right to freedom of choice among providers. The states must operate a program uniformly statewide with no difference in benefits. No federal waiver is required if the state elects managed care under the 1997 Balanced Budget Act. Your rights under Medi-Cal managed care are the same as under regular Medi-Cal, except for limits on your choice of providers. Under regular fee-for-service Medi-Cal, your doctor is your advocate in the system. That is not necessarily the case in managed care. For more information about California's Medi-Cal managed care programs, visit the website of the National Health Law Program -- www.healthlaw.org. You can also find out about how to order the new National Health Law Program manual on managed care. Managed Care Models If you qualify for Medi-Cal on the basis of age, blindness or disability, you must enroll in Medi-Cal managed care if you live in one of the six county- operated health systems: Orange, Napa, Solano, San Mateo, Santa Barbara, and Santa Cruz County. If you qualify for Medi-Cal in these counties (including persons who get both Medi-Cal and Medicare), you must enroll. Twelve counties are "two-plan model" counties: Alameda, Contra Costa, Kern, Fresno, Los Angeles, Riverside, San Bernardino, San Francisco, San Joaquin, Santa Clara, Stanislaus, and Tulare. In those counties, you have the choice between a commercial plan and a "local initiative." A "local initiative" is a semi-public entity created by the county. It includes "safety net" clinics and providers. If you qualify for Medi-Cal under Section 1931 or through CalWORKS, you must enroll in managed care. Two counties provide "Geographic Managed Care:" Sacramento and San Diego. The Department of Health Services contracts directly with several competing plans in those two counties. Each plan in turn contracts with providers. Appeals and Grievances Your access to the Medi-Cal fair hearing process is the same as under fee-for-service Medi-Cal. When a managed care plan denies or terminates a service, you are entitled to a hearing. You also have access to the managed care plan's internal grievance procedure. You can pursue both a fair hearing and grievance at the same time. We recommend that you pursue both because the grievance may resolve the problem without the need for a hearing. You have a right to file a grievance or fair hearing even when you have a disagreement with your primary doctor. For instance, if you ask your doctor for a referral to a special clinic but she says no, you should file both a grievance and a fair hearing request. If you need a second opinion -- such as whether you need an assessment or a referral to a specialist -- the administrative law judge can order a second opinion. 42 C.F.R. § 431.240(b). CCS Services In most cases, CCS services are "carved out" of managed care. That means that CCS will provide services your child needs because of a CCS eligible condition in the CCS-managed fee-for-service system. The carve out also means that Medi-Cal's In-Home Operations with CCS usually determine the need for EPSDT nursing services. There are exceptions: The Napa/Solano County Operated Health System and the Santa Barbara County Operated Health System do things differently. Mental Health Plans Mental health services for children and adults that had provided county departments of mental health and the fee-for-service system have been grouped into Mental Health Plans. Counties usually, but not always, run the Mental Health Plans. For more information, ask PAI to send you our manual called Medi-Cal Mental Health Managed Care. ATTACHMENT TO CHAPTER 10 To Review File and Medi-Cal's Authority Sample Letter (Date) Medi-Cal Field Office Address City, CA, Zip Code RE: State Hearing No._________ Medi-Cal No.______________ Your Name, Address, Phone Number Prior to the hearing, I will want to review my Medi-Cal case file [or the case file of an individual you are authorized to represent]. At that same time, I will want to review the following: * The specific regulations (including the applicable Manual of Criteria section) that relate to the requested services/device and * Any Field Instruction Notices (FINs), Policy Statements or Operating Instruction Letters (OILs) that concern when or whether the Medi-Cal program covers [the requested service or device]. After reviewing this information, I may want to photocopy some or all of these documents and submit them to the administrative law judge hearing the case. I consider the rules and policies on which you base your decision to be as much a part of my file as the TAR documents. I will call to set up an appointment to review the file and applicable policies and rules. If you are unable or unwilling to make the requested information available to me, please let me know so that I can ask the Chief Administrative Law Judge to issue a subpoena. I assume there will be no charge for any copies I make to submit as part of the hearing record. Sincerely, * * * * * * * * * * * Send a copy of this letter to the Chief Administrative Law Judge at the address indicated in the brochure you receive with the hearing request acknowledgement. Alternatively, if what you want is a copy of any Field Instruction Notice or Policy Memo, at the time you request a fair hearing you can send a California Public Records Act request to the Department of Health Services Office of Legal Services, 714 P Street, Sacramento CA 95814, with a copy to the field office that denied the TAR. In the letter, indicate that the request for these documents is related to a fair hearing request and ask that copies of the Field Instruction Notices or Policy Memos be sent to you without cost. Note 1 - Section 1931 of the Social Security Act, 42 U.S.C. § 1396u-1, was enacted by the Personal Responsibility and Work Opportunity Act of 1996 (PRWORA), Pub. L. 104-193. See Department of Health Services' (DHS) All-County Welfare Directors Letters (ACWDL) Nos. 98-43 (9/30/98), 99-02 (1/12/99), 99-02E (5/7/99), 99-18 (4/16/99) and 99-20 (5/7/99). Note 2 - For an SSI recipient who is not blind, the amount is $1,914.50. You get to this amount by starting with the income at which a person with a disability (who is not blind) will not be eligible for SSI in California. That is $1,437 per month: $676 x 2 (because SSI is only reduced 50 cents for every dollar earned) plus the $65 work exemption plus the $20 (any income exemption) equals $1,437. To that you add the average monthly Medi-Cal costs of $477.50. (See PAI's Social Security manual for a detailed discussion.) If you are blind, the amount is $1,941.50. Using the same method based on a monthly state-supplemented grant of $732 per month. This is based on the latest (1997) figures issued by Social Security, POMS SI-02302.200-N. The income ceiling may be increased by funds set aside through Plan to Achieve Self Support (PASS) or by Impairment Related Work Expenses (IRWE), or by Medi-Cal and attendant care costs in excess of the average. See discussions in the Social Security Chapter in this manual. Note 3 - 42 USC § 1396a(a)(17(D); Sneede v. Kizer, 728 F. Supp. 607 (N.D. Cal. 1990); Gamma v. Belshe', Case No. C-940852 THE (N.D. Cal. 11/16/95), CCH Medi-Cal Guide New Dev. 7798. See also DHS All County Welfare Director's Letters Nos. 96-29 (6/21/96), 97-33 (8/5/97), 97-36 (9/19/97), 97-62 (12/10/97), 99-23 (5/19/99). Note 4 - In our opinion, earned income would not disqualify an individual as "Pickle" unless his/her earned income were adequate in itself to render the person ineligible for SSI. This is because without the intervening Title II Cost of Living (COLA) increases, the individual would qualify for continued SSI beneficiary status and Medi-Cal under Social Security's 1619(b) program, 42 USC § 1382h. Note 5 - 42 USC § 426(b); 42 CFR §§ 406.12(e), 406.20(c), 407(a)(1). See Chapter 8 for a discussion of SSI PASS and IRWE programs. Note 6 - For more information about SSI deductions from earned income, see PAI's Social Security Manual or ask Social Security to give you a copy of its Red Book on Work Incentives. Note 7 - Under the Section 1931 program, the car is exempt if used on the job or for self-employment, to transport a person with a disability who lives in the home, to transport fuel or water for the home, or as a home. Otherwise, it is not counted if the fair market value is under $4,650. If any vehicle is not otherwise exempt and worth more than $4,650, it is still exempt if the equity value is under $1,500. Note 8 - See DHS ACWDL No. 91-28 (3/21/91). The exemption includes real property, inventory, cash in a business operating account, and, if used on the job, another automobile. Note 9 - The burial fund must be a separate bank account which you have designated to be for burial purposes. It cannot be commingled with other funds. For instance, you cannot say that $1500 of a $3,000 bank account is a burial fund but you can move $1500 of that account into a separate account. Note 10 - For more information, you can call the Medi-Cal In-Home Operations Unit: (916) 324-1020 (in Sacramento); (213) 897-6774 (in Los Angeles). Note 11 - Johnson v. Rank, Case No. 84-5979-SC, consent decree 11/22/85, modified effective 10/1/89, E.D.Cal., CCH Medicare and Medicaid Guide New Dev. ¶ 35,026; DHS ACWDL Mp/ 90-54 (7/24/89). Note 12 - For low income children who are not eligible for Medi-Cal, CHDP evaluations, assessments and follow-up treatment services are funded by money from the Proposition 99 tobacco tax. Note 13 - Under EPSDT, children are entitled to treatment for conditions that existed prior to eligibility for Medicaid. Note 14 - Regulation criteria include demonstrating that conventional therapy will not adequately treat the condition nor prevent progressive disability or premature death, that the provider has a record of safety and success, and that there is a reasonable expectation that the investigational service will significantly prolong life or will maintain or restore a range of physical and social function. However, if you otherwise qualify for inpatient care, treatment involving "Investigational New Drugs, clinical trials or other ancillary or investigational services...shall not in itself be construed to be part of a research study protocol, and shall not constitute grounds for denial on that basis." Welf. & Inst. § 14137.8. For persons with AIDS, ARC or who are HIV positive, Medi-Cal covers medications classified by the Food and Drug Administration or the State Department of Health Services as an Investigational New Drug. Welf. & Inst. § 14137.6. Note 15 - Long-term care facilities include skilled nursing facilities (SNFs) and intermediate care facilities (ICFs). However, federal regulations [42 CFR § 483.5] provide that the various intermediate care facilities for the developmentally disabled (ICF/DD, ICF/DD-H, and ICF/DD-N) are not "Nursing Facilities" even where the ICF/DD facilities otherwise meet the criteria of nursing facilities under federal Medicaid law. 42 USC § 1396r(a). As a consequence, residents of ICF/DD facilities are denied the benefit of the protections and care standards afforded residents of other nursing facilities through the Nursing Home Reform Laws. Note 16 - See Questions 17-20 about securing prior authorization from Medi-Cal for EPSDT services. Note 17 - However, if the cost would be $750 or less, such an item could be funded under the Special Circumstance Grant program for persons who receive SSI or IHSS. For instance, room air conditioners needed by person who have spinal cord injuries which have affected their autonomic nervous system and ability to regulate body temperature can be funded under this program. You apply for this program through your county welfare department. ---------- Chapter 11 MEDICARE Table of Contents 1. What is Medicare? 11-1 2. What does Medicare cover? 11-1 3. Which carrier provides durable medical equipment (DME)? 11-2 4. How would I know if I am eligible for Medicare? 11-2 5. Will I have to pay a premium? 11-3 6. Can I also be eligible for Medi-Cal? 11-4 7. Which Medicare Part do I need to obtain assistive technology devices and services? 11-4 8. What does Medicare not provide? 11-5 9. Do I have to pay anything for Part B services? 11-5 10. I have both Medicare and Medi-Cal. Do I also have to pay the amount Medicare does not allow? 11-6 11. How does Medicare decide when to provide benefits such as assistive technology? 11-7 12. What can I do to be sure Medicare will not deny my request? 11-8 13. How can I know if the equipment I need is durable medical equipment under Medicare Part B? 11-8 14. What items of durable medical equipment does Medicare provide? 11-9 15. What factors does a Medicare carrier consider before providing an item of durable medical equipment (DME)? 11-11 16. What is the federal rule for buying or renting assistive technology? 11-12 17. Are there any exceptions to Medicare's equipment rental rule? 11-13 18. When does Medicare repair or replace Durable Medical Equipment (DME)? 11-14 19. What prosthetic and orthotic appliances does Medicare cover? 11-14 20. What medical supplies and appliances does Medicare cover? 11-15 21. What is Medicare's coverage for dialysis and dialysis services? 11-15 22. Is Medicare coverage available outside of the U.S.? 11-15 23. How do I ask for assistive technology from Medicare? 11-16 24. What is the appeals process for Medicare Part B? 11-16 25. What is Medicare Part C? 11-18 26. What is a Provider Sponsored Organization (PSO)? 11-19 27. What is a Private Fee-For-Service Plan (PFFS)? 11-19 28. How does a Medical Savings Account (MSA) work? 11-19 29. What is the process for Part C grievances and appeals? 11-19 30. How do I file a grievance? 11-20 31.When would I file an "organization determination?" 11-20 32. How does the organization determination process work? 11-21 33. Can I appeal an organization determination? 11-23 34. How will the HMO handle my request for reconsideration? 11-23 35. What can I do if I do not agree with my HMOs decision after reconsideration? 11-26 36. When would I ask for an administrative hearing? 11-26 37. What is a Departmental Appeals Board Review? 11-27 38. What is Judicial Review? 11-27 39. What does it mean to reopen a determination or decision? 11-27 40. What is the process for Part A appeals? 11-28 Attachments 11-29 Chapter 11 MEDICARE 1. What is Medicare? Medicare is a federal health insurance program for people who are elderly or who have disabilities. Private insurance companies (carriers) administer the program locally. Employer and employee payroll taxes fund the Medicare program. To receive Medicare, you need to apply for benefits at a local Social Security office. Social Security should answer any questions you have about benefits as well. The number to call for information is (800) 772-1213. 2. What does Medicare cover? Medicare benefits are divided into Part A, Part B, and Part C. * Part A covers hospital care, nursing home, and home health care services for some people. * Part B covers outpatient hospital care, physician services, physical therapy, medical transportation, durable medical equipment (DME), prostheses, and home health care for most people. * Part C plans are supposed to provide most Part A and Part B services - including assistive technology. They also provide any other services specified in the Medicare Part C policies. Since most assistive technology devices and services fall under Part B, this chapter will focus on Part B. Medicare Health Maintenance Organizations (HMOs) also provide Medicare. They are now classified as Medicare Part C plans. They still operate the same as before. Medicare Part C appeals apply to HMOs. See question 29 for more information. 3. Which carrier provides durable medical equipment (DME)? Only four regional carriers in the entire nation deal with DME under Part B. These carriers make decisions on your benefits. They issue notices about their decisions directly to you. California is in Region D. CIGNA, in Nashville, Tennessee runs Region D. 42 C.F.R. § 421.210. You should ask questions about your benefits first at your local Social Security office. If you don't like the answer, you can contact CIGNA at P.O. Box 690, Nashville, TN 37202, phone (800) 899-7095. 4. How would I know if I am eligible for Medicare? To be automatically eligible for Medicare, without any premium for Part A hospital insurance, you must qualify under one of the following categories. A. Age-based eligibility. You must be 65 years of age or older and be eligible for one of the following (even if not actually receiving cash benefits): * Social Security Retirement Benefits under Title II of the Social Security Act; or * Federal Civil Service Retirement Benefits; or * The Railroad Retirement System; or * Enough quarters of Medicare coverage from either employment covered by Social Security or Medicare-qualified government employment, or both. 42 U.S.C. § 1395c; 42 C.F.R. § 406.15. How many quarters of coverage you need varies depending upon the year you retire. 42 C.F.R. §§ 406.11, 407.10. B. Disability-based eligibility. * You are eligible for Medicare if you have received either of the following for at least 24 months: * Social Security Disability Benefits under Title II of the Social Security Act; or * Railroad Retirement Disability Benefits. If you are a disabled widow or widower, you can receive Medicare in as little as 12 months from when you apply if you can show that you were eligible for Medicare 12 months before your application. 42 C.F.R. § 406.12(c)(5), 42 C.F.R. § 406.6(d)(2). * You are eligible for Medicare if you are in the Qualified Disabled and Working Individuals program, received Social Security benefits before, and are below certain income and resource levels. * You are eligible for Medicare if you have end-stage renal disease. Medicare benefits can continue for up to two years after you stop receiving disability benefits because you successfully completed a trial work period. If you become disabled again within five years after completing a trial work period, your Medicare begins immediately. You do not need to go through a second two-year waiting period. 5. Will I have to pay a premium? There is no Part A premium if you are automatically eligible for Medicare. If you wish to enroll in Part B, you must pay a premium, which is $45.50 monthly in 1999. If you are not automatically eligible for Medicare, you may voluntarily enroll in Medicare if you are 65 years of age, and either a citizen or a legal alien who has lived in the U.S. for at least five years. You will pay a premium. The Part A premium for 1999 is $309 per month; the 1999 Part B premium is $45.50 per month. You can enroll in Part B, which covers most assistive technology, without enrolling in Part A. But if you enroll in Part A, you must enroll in Part B. Your premiums for voluntary enrollment may be less if you have worked some quarters, but not enough to qualify for automatic enrollment. Voluntary enrollment is not available if you are under age 65, even if you have a disability. 6. Can I also be eligible for Medi-Cal? Almost everyone eligible for Medicare either automatically or by voluntary enrollment is eligible for Medi-Cal. Your income must be below the federal poverty level. Medi-Cal will pay the Part B premium and the Part A premium, if necessary. In addition, if your income is up to 135% of the federal poverty level and you have limited resources, you are eligible to have Medi-Cal pay the Part B premium. 7. Which Medicare Part do I need to get assistive technology devices and services? When Medicare covers assistive technology devices and services, it will generally be under Part B. Part B services include: * Physicians' services; * Outpatient hospital services; * Rural health clinic services; * Comprehensive outpatient rehabilitation facility services; * Physical and occupational therapy; * Speech pathology services; * Prosthetic devices; * Durable medical equipment (DME); and * Diagnostic tests. If you are under institutional care, you can get the technology you need under Part A as part of the Medicare payment for institutional care services. This may include prosthetics, orthotics, durable medical equipment, and other devices also covered under Part B. The criteria for coverage is generally the same. 8. What does Medicare not provide? Medicare does not cover routine or preventative services, such as: * Routine physical examinations; * Most dental care (except for emergency restorative services or where the jaw or bone supporting the teeth is involved) [Note 1]; * Routine eye examinations, eyeglasses or contact lenses (except when associated with eye disease or injury; * Hearing aids and related examinations; * Orthopedic shoes (except when you need them for symptoms of diabetes, or they are an integral part of leg braces); and * Some immunizations. 9. Do I have to pay anything for Part B services There is a deductible of $100 per year for Part B services. You meet this deductible only by incurring charges that Medicare would allow, which may be less than the full amount of the bill. In addition, you must pay a 20% copayment for most services and devices provided under Part B. Physicians and other providers can charge more than Medicare will pay for the covered service in certain circumstances. They expect you to pay these extra charges separately. Even though physicians and suppliers of equipment may charge more than the Medicare rate, some providers have agreed to provide services and equipment on an assignment basis. This means that the provider agrees to limit charges to the Medicare allowed amount. (The allowed amount is paid 80% by Medicare and 20% by you). But, if an equipment supplier does not agree to assignment, and most do not, it may charge you the market price. You will be expected to pay any amount above the amount Medicare allows, plus the 20% of the allowed amount which is your co-pay. In reality, this can be a lot of money, especially for expensive items like custom wheelchairs. It is not uncommon for a Medicare carrier to set the allowed amount at only 40% or 50% of the market value of a custom wheelchair. The difference between the market value and the allowed amount can easily total $5,000 or $6,000. You can appeal the inadequacy of the allowed amount. But, you have to buy the item before you appeal. So for many, no appeal is possible. Ask the equipment provider if they would agree to provide you services on an assignment basis. There is an obvious advantage to your purchasing services and equipment from providers who have agreed to accept assignment. Carriers have to give you a complimentary copy of the Medicare Participating Physicians/Suppliers Directory (MEDPARD) if you ask for it. It lists all physicians and suppliers in the area that have accepted assignment. Medicare Carriers Manual § 7551(E). 10. I have both Medicare and Medi-Cal. Do I also have to pay the amount Medicare does not allow? No. In your case, Medi-Cal is responsible for paying the amount that is above Medicare's rate. This is because of a court order called the Charpentier injunction. The injunction comes from a decision in the case of Charpentier v. Belshe, CCH Medicare and Medicaid Guide & 43,123 (E.D. Cal. 1994). The Charpentier injunction applies to medical equipment and supplies such as customized wheelchairs. Under Charpentier, you and the provider must first apply for prior approval from Medi-Cal for the equipment through a Treatment Authorization Request (TAR). See Chapter 10 of this manual for information on Medi-Cal. If Medi-Cal approves the TAR, it will tell the provider how much Medi-Cal will pay for the equipment. The provider then delivers the equipment to you and submits a bill to Medicare for the amount Medi-Cal approved. Medicare then pays at 80% of the Medicare approved rate. Medi-Cal then pays the provider the amount approved on the TAR, less the amount that Medicare paid. For more information on the Charpentier injunction, you may want to ask for PAI's publication called Obtaining Durable Medical Equipment for Persons Eligible for Both Medicare and Medi-Cal. 11. How does Medicare decide when to provide benefits such as assistive technology? Medicare will only pay for services and equipment that it finds to be reasonable and necessary. 42 U.S.C. § 1395y(a)(1)(A); 42 C.F.R. §§ 411.15(k). The provider's report must justify the need for the item by describing your condition and how the recommended item will help you. Medicare expects carriers to refer to lists of approved and disapproved devices when deciding if an equipment or service is medically necessary. If an item is on the approved list, Medicare can pay for it if you can establish a need for it. If an item is on the disapproved list, carriers will not approve its purchase. The only recourse is to appeal, but it will be hard to win. Federal courts have upheld such Medicare rulings. If the requested item does not appear on either an approved or disapproved list, you can make a case for its medical necessity. The carrier may approve. If not, you can appeal. See questions 24 and 29 below on appeals. DME suppliers know whether a particular item is on an approved or disapproved list. You should talk with them before you buy anything. Under Medicare, health care providers cannot bill for services that Medicare denied on the basis that they are not reasonable and necessary pursuant to 42 U.S.C. § 1395y(a)(1) unless: * the provider did not know and could not be reasonably expected to know that Medicare would not pay for the services on this basis; or * the physician gave you notice before providing the service that Medicare was not likely to pay for the specific service, and after receiving the notice, you signed a statement agreeing to pay the provider for the service. Medicare Carriers Manual § 7330. 12. What can I do to be sure Medicare will not deny my request? The key to submitting a successful Medicare claim is good medical documentation of medical necessity and reasonableness. Physicians and suppliers must provide detailed reports that: * establish your diagnosis, prognosis, and the nature and extent of your functional limitations; * devices, and therapeutic interventions that you have tried in the past; and * the results, and your past experience with the suggested item. The physician must establish that the requested equipment is medically necessary, is part of your course of treatment, has a potential functional outcome, and that no less expensive appropriate equipment is available. For more information on how to prepare effective medical documentation for Medicare, see PAI's publication called Obtaining Durable Medical Equipment to Persons Eligible for Both Medicare and Medi-Cal. Physicians and suppliers often have to talk to carriers about your need for the equipment or service and any guidelines the carrier will apply in making a decision. Physicians and suppliers are responsible for completing and submitting the proper forms to the Social Security office. 13. How can I know if the equipment I need is durable medical equipment (DME) under Medicare Part B? Medicare says that DME is one which: * Can withstand repeated use; * Is primarily and customarily used to serve a medical purpose; * Generally is not useful to you in the absence of an illness or injury; * Is appropriate for use in the home; 42 U.S.C. §§ 1395m(a)(13), 1395x(n); 42 C.F.R. § 414.202; Medicare Carriers Manual § 2100.1; and * Is necessary and reasonable to treat an illness or injury, or to improve functioning; 42 U.S.C. § 1395y(a); see Section 6. All of these elements must be satisfied before Medicare will cover an item of DME. In special situations, it is better to classify an item as a medical supply, appliance, or device than as DME. This is because Medicare will not cover DME if you use it in a hospital or skilled nursing facility. 42 U.S.C. §§ 1395x(n), 1395x(e)(1), 1395i-3(a)(1). See Warder v. Shalala, 149 F.3d 73 (1st Cir. 1998). Medicare will pay for DME under Part B under a lease-purchase, lump sum payment, or rental. Medicare has rules on which payment option you should use for each item. In some circumstances, the Medicare carrier determines whether rental rather than lease-purchase or lump sum purchase is more cost effective. In other cases, you may choose between rental and purchase. 42 C.F.R. § 405.514(c). 14. What items of durable medical equipment (DME) does Medicare provide? Medicare provides DME such as: * Iron lungs, respirators, intermittent positive pressure breathing machines, and oxygen tents; * Hospital beds; * Wheelchairs including power chairs, customized chairs, and power vehicles (like triwheelers); * Crutches, canes, trapeze bars, or walkers; * Inhalators and nebulizers; * Commodes; * Suction machines; * Traction equipment; * Heart pacemakers; * Infusion pumps; * Whirlpool baths; * Blood-testing strips and blood glucose monitors (if you are diabetic); and * A seat-lift mechanism (not including the seat-lift chair). Medicare will also pay for institutional dialysis services and supplies, and for home dialysis supplies and equipment. 42 U.S.C. § 1395x(s). Items such as hospital beds and wheelchairs are presumed to be medical in nature. Medicare Carriers Manual § 2100.1. Equipment which is generally used for nonmedical purposes is presumed to be nonmedical. Medicare will not pay for nonmedical equipment. This is true even though the item has some medically related use. For example, an air filter may be necessary if you have severe allergies. An air conditioner may be necessary if you have difficulty controlling internal body temperature. Medicare does not consider either item as medical equipment because the primary and customary use of a filter or an air conditioner is a nonmedical one. Medicare Carriers Manual § 2100.1. Some items that Medicare will not provide include: all environmental control devices including items such as air filters and humidifiers (not medical in nature); Braillers and Braille texts [Note 2] (educational in nature); all exercise equipment (not primarily medical in nature); eyeglasses and contacts, except one pair after cataract surgery; and telephones and television set rental fees during hospital stays. Medicare Coverage Issues Manual § 2100.1, Bedford County General Hospital v. Heckler, 574 F. Supp. 943 (E.D. Tenn. 1983). Obviously, many of these items do perform a medical function by helping you overcome the impact of a disability. Medi-Cal may consider some items as medically necessary which Medicare does not. In some cases, you should ask for an administrative hearing to challenge a denial. Strong advocacy has resulted in the purchase of items which a carrier or Medicare initially found to be nonmedical in nature. In one case, Medicare approved a computer to help a stroke victim communicate. The man could not speak or write legibly. The Medicare Appeals Council found the computer to be a prosthetic device that replaced the injured portion of his brain. Medicare may cover a few special items even though they are useful in the absence of illness or disability. These include gel pads, and pressure and water mattresses (when prescribed because you are susceptible to bedsores) and heat lamps (if you have an established medical need for heat therapy). Medicare Carriers Manual § 2100.1. 15. What factors does a Medicare carrier consider before providing an item of durable medical equipment (DME)? To provide an item of DME, the carrier must determine that: * The equipment is medically necessary for you. It must be expected to make a meaningful contribution to the treatment of your illness or disability. The carrier must also get a prescription and other information establishing why you need the device. Medicare Carriers Manual § 2100.2. * The equipment is reasonable. To determine this, the carrier considers: * Whether the cost of the item is too high in relation to its therapeutic benefit; * Whether the item costs much more than another medically appropriate item that would serve the same purpose; and * Whether the item serves the same purpose as equipment already available to you. If the carrier finds a less expensive appropriate alternative device, it will limit payment to the reasonable charge for that device. 16. What is the federal rule for buying or renting assistive technology? The basic rule is that you will rent DME. It caps the monthly rental payment at 10% of the "national limited payment amount" for the equipment for the first three months of use. The national limited payment amount is calculated according to a formula. After the third month, the rental payment is 7.5% of the national limited payment amount. Rental payments are made while you have a medical need for the equipment, but for no longer than 15 continuous months. During the tenth continuous month of Medicare-covered rental, Medicare must offer you the option of buying the item. You have one month to accept the offer. 42 U.S.C. § 1395m(a)(7)(A)(iii). If you accept, Medicare will have the supplier transfer title of the item to you in the 13th month. At that time, rental/purchase payments stop. After the 15th month, Medicare may make maintenance and servicing payments. If you decide not to buy the item, and the rental period extends beyond 15 months, title to the equipment remains with the supplier. But, Medicare will make no further rental payments. To participate in the Medicare program, suppliers must agree to accept the 15 payments as payment in full. A supplier who knowingly and willfully bills more than that amount is subject to fines and exclusion from the program. 42 U.S.C. §§ 1395m(a)(11), 1395u(j)(2). In reaching the maximum of 15 continuous months, there can be an interruption in use for up to 60 days, plus the days you did not use it in the month use stopped. For example, you rent an item in January for 12 months. Then you go to the hospital on May 15, and stay for 50 days in June and July. The beginning of the rental period still began at the time of the initial rental. The same continuous rental period policy applies to breaks in medical necessity. 42 C.F.R. § 414.230(c)(3). The provider may pick up the equipment but must return it when you return home, or when the equipment is again medically necessary. An interruption of more than 60 days requires new justification of medical necessity and the beginning of a new rental period. 42 C.F.R. § 414.230(d). If you move, your move is not necessarily an interruption in the period of continuous use. However, new equipment may trigger a new period of continuous use, unless the equipment is new due to a change in supplier. In making the decision to rent or buy, you must consider that if you buy equipment, you will be responsible for 20% of the service charge each time the equipment is serviced and for any unassigned amount. However, for equipment you rent for 15 months, your are responsible for a 20% copayment on a maintenance and servicing fee payable twice per year -- whether or not the equipment is actually serviced. As a beneficiary, you may sell equipment you bought that you no longer need. Medicare cannot ask you to reimburse in such a circumstance. 17. Are there any exceptions to Medicare's equipment rental rule? There are five exceptions to the basic rental rule. For each of these exceptions, different rules apply for coverage and the ownership arrangement: * Inexpensive or routinely purchased equipment; * Items that need frequent and substantial servicing; * Customized items; * Prosthetic and orthotic devices (non-durable medical equipment); and * Oxygen and oxygen equipment. Inexpensive or routinely purchased equipment is equipment that costs less than $150 or which is bought rather than rented at least 75% of the time. These items can be rented or paid for in a lump sum. If rented, the 15-month rule does not apply, but the total payments cannot exceed the purchase price. 42 U.S.C. § 1395m(a)(2). Equipment that requires frequent and substantial servicing, such as ventilators, aspirators, and nebulizers will be rented on a monthly basis only, or will be bought outright. If rented, the total rental amounts cannot exceed the purchase price. 42 U.S.C. § 1395m(a)(3). Customized items (those that need substantial modification to meet your individual needs) will be bought with a single payment. 42 U.S.C. § 1395m(a)(4). A lump sum payment may also be made for maintenance and servicing. Whether a device needs substantial modification is a question of fact. For example, adding custom seating and positioning pads to a wheelchair may result in it being considered a custom item. Buying an item that will be used over a period of years with a single payment is generally favorable to you. Prosthetic and orthotic devices, items that are not considered DME are purchased on a lump sum basis only. 42 U.S.C. § 1395m(a)(6). Oxygen and oxygen equipment is covered on a rental basis only. 42 U.S.C. § 1395m(a)(5). 18. When does Medicare repair or replace durable medical equipment (DME)? Generally, Medicare considers DME to have a lifetime of five years during a continuous period of medical need. But the Department of Health and Human Services may set a different reasonable lifetime for certain items. Medicare will cover replacement DME at the end of the lifetime of an item as long as it is still medically necessary. Medicare will also cover replacement DME or the cost of repair under certain circumstances if the carrier finds: * that the item is lost or irreparably damaged; and * that the loss or damage is not due to misuse or neglect on your part. A carrier will not pay for a replacement due to misuse or neglect because coverage for replacement in this circumstance is not reasonable. 42 U.S.C. § 1395y(a)(1)(A). Repair is not covered for rented equipment since these charges are normally part of the rental charge. Medicare Carriers Manual § 2100.4. 19. What prosthetic and orthotic appliances does Medicare cover Medicare will cover reasonable and necessary prosthetic devices that replace all or part of an internal body organ including colostomy bags and supplies; leg, arm, back, and neck braces; artificial larynxes; and artificial legs, arms, and eyes. This is not a complete list. You can argue for purchase of any device that replaces the function of any body part. As technology increases, the kinds of available prosthetics should also increase. Medicare will cover the supplies that are necessary for the effective use of prosthetic devices, such as the batteries needed to operate an artificial larynx. 20. What medical supplies and appliances does Medicare cover Medicare will cover medical supplies and appliances when: * your physician certifies them as medically necessary for you; and * Medicare says they are reasonable. 42 U.S.C. § 1395y(a)(1)(A). This includes surgical dressings, splints, casts, and other devices you need for fractures and dislocations. 21. What is Medicare's coverage for dialysis and dialysis services? Medicare will cover dialysis and dialysis services when medically necessary and provided through an approved facility. Medicare will also cover the purchase or rental, installation, and maintenance of all dialysis equipment necessary for home dialysis. Dialysis equipment includes artificial kidney and automated peritoneal dialysis machines; support equipment such as blood pumps; bubble detectors, and other alarm systems. Medicare also provides home dialysis support services when specified in a written treatment plan. Support includes periodic monitoring, emergency visits by qualified personnel, and maintenance of equipment. 42 C.F.R. §§ 410.50, 410.52. 22. Is Medicare coverage available outside of the U.S? Medicare will not cover services provided outside of the United States and its territories. It makes an exception for: * emergency services in a hospital; or * a foreign hospital that is much closer to your home than any hospital in the United States. 42 C.F.R. § 411.9. 23. How do I ask for assistive technology from Medicare? Medicare generally does not require prior approval to buy equipment or services. However, under a Medicare HMO option, prior authorization is required for most services. In addition, federal law authorizes the Secretary of Health and Human Services to develop lists of items that must have prior authorization. 42 U.S.C. § 1395m(a)(15); Medicare Coverage Issues Manual. Medicare will reimburse you only for medically necessary equipment. This places you in the position of sometimes being denied reimbursement for equipment you have already bought because the carrier says it is not medically necessary. In addition, Medicare will only rent, not buy, some items. If you buy a rental-only item, Medicare may refuse to reimburse you. The carrier makes the initial determination of whether Medicare will pay for a device or service and, if so, how much it will pay. Carriers often base initial determinations on average practice "norms" using computerized data analysis programs rather than the facts of your case. You can change the carrier's determination through the appeal process. Since you cannot be sure Medicare will reimburse you, it is important that you find out before making a purchase. You should make sure that the supplier does business with Medicare. The supplier should be able to tell you whether the item is generally provided through Medicare and, if so, whether it is normally purchased or rented. You can also get this information from the carrier. The carrier in California is CIGNA at (800) 899-7095. You should also ask the supplier whether your doctor's supporting statements are likely to be accepted by Medicare as medical justification for the purchase. Ask the supplier to suggest additional documentation if necessary. 24. What is the appeals process for Medicare Part B? Once a carrier makes a decision on your claim, you should receive a Medicare Summary Notice. 42 C.F.R. § 405.804. (See Appendix for examples of forms). The statement on the form should give you information about the reason for the decision and how the carrier arrived at the amount it has determined you owe. The form is often unclear and may not fully explain why a claim was denied or reduced. Each carrier has a toll-free telephone number, listed on the notice. You can call for an explanation of the decisions and find out what additional information may change the outcome. For California, the number is (800) 899-7095. As a claimant, you have the right to ask the carrier to perform a paper review. You can request the paper review up to six months after the initial decision, or later if you can show good cause. 42 C.F.R. §§ 405.801(a), 405.807. Some examples of good cause for late filing include: * you had a serious illness that prevented you from attending to personal business; * you did not understand the appeal requirements; or * you did not receive the Medicare Summary Notice and your Notice of Appeal Rights. You can begin the paper review by completing a Request For Review of Part B Medicare Claim form. (See Appendix). Most sections of the form are self-explanatory. You can submit the form to the carrier, to a Social Security office, or to the Health Care Financing Administration (HCFA). 42 C.F.R. § 405.821. HCFA is a federal agency within the Department of Health and Human Services. It is responsible for administering the Medicare program. You can contact HCFA at (800) 638-6833. You should, if possible, also submit additional documentation from a physician and/or supplier explaining why the equipment is medically necessary and reasonable. 42 C.F.R. § 405.809. You should keep the original of the documents and send a copy. The review is performed by an employee of the carrier who did not make the initial determination. The carrier then sends you written notice of the determination, advising you of the right to a carrier hearing if the amount is more than $100. 42 C.F.R. §§ 405.811, 405.815. To calculate the amount, you can add two or more claims together, as long as each claim has been reviewed, and no more than six months has passed since the review. 42 C.F.R. § 405.817. You have the right to a face-to-face hearing, but you can ask to have it by phone. The hearing officers for Part B claims are employees of the carriers. They must apply HCFA policies and rules as if they were law, even if they appear to conflict with Medicare statutes and regulations. Even so, many appeal hearing decisions result in more benefits for the claimant. If you are not satisfied with the results of the hearing before the carrier and have $500 or more in controversy, you can ask for a hearing with an administrative law judge (ALJ) employed by the Social Security Administration. 42 C.F.R. § 405.855(a). You can reach the amount in controversy in several ways: On a single claim, adding together several claims, or adding together your claims with other individuals' if there are common issues involved. 42 C.F.R. § 405.817. It takes several months to obtain a Part B ALJ hearing. If you are willing to submit the case to the hearing officer without an actual hearing, the process will move faster. The decision to do so is a tactic that will depend on the facts of your case. In many cases, it is better to go to a hearing and present your reasons in person. If not satisfied with the results of this hearing, you may request review with the Departmental Appeals Board (DAB). 42 C.F.R. § 405.856; 20 C.F.R. § 404.967. If you do not like the DAB decision, or the DAB denies review of the hearing decision (and you have $1,000 or more in controversy), you have the right to request judicial review in federal district court. 42 U.S.C. § 405(g); 42 C.F.R. § 405.857; 20 C.F.R. § 422.210. 25. What is Medicare Part C? Part C was created by Congress in 1997, named Medicare + Choice. Medicare + Choice includes HMO and PPO options which previously existed under Medicare, plus other possible options. 42 U.S.C. § 1395w-21. Part C plans include: * Medicare HMOs; * Provider Sponsored Organizations (PSO); * Private Fee-for-Service Plan (PFFS); * Medical Savings Accounts (MSA). No other options will be available in California until at least the year 2000. All Part C programs, with the exception of MSAs, must provide benefits and services covered under Medicare Part A and B, other than hospice care. 42 U.S.C. § 1395w-23(h); 42 C.F.R. § 417.440. If you are in a Part C plan, you can receive hospice services under Part A and B. 42 C.F.R. § 422.266. MSA plans must cover the same services as other Part C plans, after you meet the deductible. Remember, Medicare Part C options must cover at least any and all services covered by Parts A and B. 42 U.S.C. § 1395w-22(a). Most Part C plans provide additional coverage, but any additional coverage is specific to the Part C plan in which you may be enrolled. Finally, Medicare HMOs are now classified as Part C benefits. 26. What is a Provider Sponsored Organization (PSO)? PSOs are similar to HMOs but must be operated by a health care provider, such as a hospital, or by a group of providers. The provider-operator must provide a substantial part of the covered services. 27. What is a Private Fee-For-Service Plan (PFFS)? PFFSs are operated by private insurance companies which pay providers on a fee-for-service basis at a rate determined by the plan, not by Medicare. If you are in a PFFS plan, you are not restricted to providers who contract with the plan. But, you may have large out-of-pocket expenses because providers will be less restricted in billing for amounts beyond that paid by the plan. 28. How does a Medical Savings Account (MSA) work? If you choose an MSA, you must buy a catastrophic health plan with a deductible and other out-of-pocket expenses of not more than $6,000. The premium is paid with Medicare funds. The difference between the premium for this catastrophic policy and the amount Medicare makes available for an MSA is placed in your MSA. You use that money for medical expenses not covered by the catastrophic policy, including the $6000 deductible. After a time, if any money in your MSA is not used, you may withdraw the money. The MSA option may not be a good idea if you have substantial health care needs. You cannot use an MSA if you also have Medi-Gap insurance. 29. What is the process for Part C grievances and appeals? The procedures outlined in this manual are from the statutes and regulations. They went into effect January 1, 1999. They apply to all Medicare Part C (Medicare + Choice) plans, including HMOs. There are still questions about the new procedures. Some have not yet been implemented or fully defined. If you filed an HMO appeal before January 1, 1999, it will follow the procedures outlined at 42 C.F.R. § 417.600. The federal Ninth Circuit Court of Appeals has set out different procedures in the case of Grijalva v. Shalala. The Grijalva procedures would give you more protections and rights. However, the Grijalva case may be appealed. The citation for the case is Grijalva v. Shalala, 152 F.3d 1115 (9th Cir. 1998). 30. How do I file a grievance? You need to decide first whether you should file an "organization determination" or a "grievance." 42 U.S.C. §§ 1395w-22(f) & 1395w-22(g)(1)(A); 42 C.F.R. §§ 422.561, 422564(b) & 422.566. A "grievance" is for non-coverage issues. You file a grievance if your complaint is about anything not related to your coverage for services. For example, if HMO staff did not treat you courteously, you could file a grievance. You file the grievance directly with your HMO. Your HMO must have a meaningful procedure to resolve grievances. You have no right to appeal if you are not satisfied with the result. 42 U.S.C. § 1395w-22(f); 42 C.F.R. § 422.564. You should treat any complaint related to coverage or access to services as an "organization determination." 31. When would I file an "organization determination?" An "organization determination" is for coverage issues. You would file an "organization determination" if you have a complaint about your coverage for services. 42 U.S.C. § 1395w-22(g)(1(A); 42 C.F.R. § 422.566. Examples of reasons you might file an organization determination include disagreements with your HMO about: * Whether you are a member of the plan; * Whether you are entitled to receive a health service from the plan; * How much you have to pay for a service; * Whether the plan covers assistive technology; * Whether you have access to specialists; * Whether you can get diagnostic tests; * Whether you have coverage for mental health services; * When you can get emergency services or urgently needed services; * How you can get follow-up care; * Whether the plan covers prescriptions and medications; or * Whether the plan can discontinue a service it was providing. 42 C.F.R. § 422.566(b). 32. How does the organization determination process work? You can ask for an organization determination on either a standard time frame or an expedited (speeded up) time frame. How the process works depends on which time frame you choose. Standard Time Frame On the standard time frame, you make a request for service. Your HMO must notify you of its decision within 14 calendar days from the day it receives your request. 42 C.F.R. § 422.568(a). Either you or the HMO can extend this period another 14 days. The HMO, however, must justify why it needs the extension - for example, to get more information for your benefit. Expedited Time Frame On the expedited time frame: * You (or a doctor) must submit a request directly to the HMO (or to the HMO's designated [dispute resolver]). 42 C.F.R. § 422.570(c)(2). * The doctor must show (or the HMO must find) that using the standard time frame could seriously jeopardize your life, health, or recovery. 42 C.F.R. § 422.570(c)(2). * The doctor may submit information supporting the request for an expedited determination. 42 C.F.R.§ 422.570(b)(2). * Requests and information can be oral; they do not have to be in writing. * If the HMO denies your request for an expedited determination, it must: * Tell you promptly about the denial; and * Follow up within two working days with a letter explaining; * That the HMO will follow the standard time frame; and * That you have the right to file a grievance if you disagree with the decision. 42 C.F.R. § 422.570(d). If the HMO approves your request for an expedited determination, it must tell you within 72 hours after receiving your request. 42 C.F.R. § 422.572(a). If the HMO needs more medical information from out-of-plan providers, the 72-hour period begins when the HMO receives that information. 42 C.F.R. § 422.572(d). The plan may extend the deadline by up to 14 calendar days upon your request, or the plan's justification of an extension due to a need for additional information for your benefit. 42 C.F.R. § 422.572(b). If the [plan] first notifies you of its expedited determination orally, it must mail you written confirmation within two working days of the oral notification. 42 C.F.R. § 422.572(c). If your HMO denies a service or payment (or even a part of it) it must notify you in writing. 42 C.F.R. § 422.572(c). It must also notify you in writing of an expedited determination, whether it is in your favor or not. 42 C.F.R. § 422.572(c). The notice must give you: * Specific reasons for the denial, in understandable language; * Information on your right to a reconsideration and appeal; and * A description of the reconsideration and appeal processes. 42 C.F.R. §§ 422.568(e). If your HMO does not provide this notice in a timely manner, that failure is an adverse organization determination. You can appeal an adverse organization determination. 42 C.F.R. §§ 422.568(e) & 422.572(f). 33. Can I appeal an organization determination? Yes. There are four steps in appealing an organization determination. The steps are: * Ask for reconsideration within the HMO; * Ask the Center for Health Dispute Resolution (CHDR) to review the HMO's decision; * Ask for an administrative hearing; and * Appeal the administrative hearing officer's decision. 34. How will the HMO handle my request for reconsideration? In a reconsideration: * The HMO reviews its adverse organization determination, the evidence of findings it used to make the original decision, and any other evidence submitted. 42 C.F.R. §§ 422.580 & 422.586; * Someone who was not involved in making the original organization determination must conduct the reconsideration. 42 C.F.R. § 422.590(g); and * If your dispute is about medical necessity, a physician with expertise in the appropriate field of medicine must make the reconsidered determination. There are two time frames for reconsideration of organization determinations B standard and expedited. 42 C.F.R. § 422.578. Standard Reconsideration You file a request for standard reconsideration with your HMO. You can also file it with a SSA office, which will forward your request to the HMO. If you are a qualified railroad retirement beneficiary, you may file with a Railroad Retirement Board office. 42 C.F.R. § 422.582(a). However, the time limits for the HMO to complete its review do not begin until the HMO receives your request. You must file your request for reconsideration within 60 calendar days from the date on the notice of organization determination. You can file it later for good cause. 42 C.F.R. § 422.582. You will find the procedures for filing a late request at 42 C.F.R. § 422.582(c). On a reconsideration of your request for services the HMO must either: * Give you the service you ask for in the reconsideration; or * Send a written explanation of its determination, with your case file to the Center for Health Dispute Resolution (CHDR) within 30 days. 42 C.F.R. § 422.590(a). Either you or the HMO can extend this period another 14 days. The HMO, however, must justify why it needs the extension B for example, to get more information for your benefit. On a reconsideration of your request for payment, the HMO must either: * Make the requested payment; or * Send a written explanation of its adverse determination, with your case file, to the Center for Health Dispute Resolution (CHDR) within 60 days. 42 C.F.R. § 422.590(b). Expedited Reconsideration Either you or a physician may make a request for expedited reconsideration. You must file the request directly with the HMO 42 C.F.R. § 422.584(a). The reason for your request must be that: * The HMO refused to provide a service; or * The HMO terminated an existing service. 42 C.F.R. §§ 422.566(b)(3) & 422.566(b)(4). The HMO must expedite its reconsideration if the physician says (or the plan decides) that the standard time for reconsideration of its determination could seriously jeopardize your life, health, or recovery. 42 C.F.R. § 422.584(c)(2). If your HMO denies a request for expedited reconsideration, it must tell you, and give you written notice, that it has automatically transferred the request to the standard time frame. The HMO must tell you about your right to file a grievance if you disagree with the decision not to expedite. 42 C.F.R. § 422.584(d). If the HMO approves your request for expedited reconsideration, it must notify you within 72 hours after receiving the request. Either you or the HMO can extend this period another 14 calendar days. The HMO, however, must justify why it needs the extension - for example, to get more information for your benefit. 42 C.F.R. § 422.590(d). If the HMO needs medical information from out-of-plan providers, the 72-hour period begins when the HMO receives that information. 42 C.F.R. § 422.590(d)(4). The HMO must either: * Give you the service within 72 hours; or * Forward the case file, with a written explanation of the decision, to the CHDR within 24 hours. 42 C.F.R. § 422.590(d)(4). At the same time, the HMO must notify you that it has forwarded the matter to CHDR. 42 C.F.R. § 422.590(e). 35. What can I do if I do not agree with my HMO's decision after reconsideration? If you do not agree with the result of your HMO's reconsideration, the Center for Health Dispute Resolution (CHDR) can review it. If some issues have been resolved, CHDR can review just those that remain in dispute. CHDR is an independent agency that contracts with HCFA. 42 C.F.R. § 422.592(a). CHDR must conduct the review as quickly as your health condition requires. 42 C.F.R. § 422.592(b). Under this contract with HCFA, CHDR cannot take longer than 60 days for its review. When CHDR has completed its reconsideration, it must mail you a notice that: * Sets out the reasons for its decision; and * Tells you about your right to an administrative hearing. 36. When would I ask for an administrative hearing? You may ask for an administrative hearing if: * The amount of money you and the HMO do not agree on is more than $100; or * The projected value of the requested service is over $100. 42 C.F.R. § 422.600. You may file the hearing request form with your HMO, with CHDR, or with a Social Security office. [Note 3] There is a sample form in the Appendix of this manual. 42 C.F.R. § 422.602(a) & 422.582(a). You must file your request within 60 days of the date on CHDR's notice of reconsideration. 42 C.F.R. § 422.602(b). You can extend this time limit if you can show good cause. 20 C.F.R. §§ 404.933(c) & 404.911. The waiting period to get a hearing date can be quite long, sometimes up to 12 months. There is no prescribed time limit for an administrative law judge to issue a decision. 37. What is a Departmental Appeals Board Review? You, or the HMO, or any other party to the hearing, may request a review of the administrative hearing decision from the Departmental Appeals Board (DAB). 42 C.F.R. § 422.608. 38. What is Judicial Review? Anyone who is not satisfied with a DAB decision (or denial of review) may request judicial review of the decision if the amount in controversy is $1,000 or more. 42 U.S.C. § 405(G); 42 C.F.R. § 422.612 & 20 C.F.R. § 422.210. 39. What does it mean to reopen a determination or a decision? At any point in your dispute with the HMO, through the DAB determination, you can petition the entity who made the decision to reopen and revise its decision. 42 C.F.R. §§ 422.616 & 405.750. A petition for reopening can be especially useful if your time to appeal has elapsed. You have 12 months from the date of the given notice to file a petition for reopening, and up to four years if you can show good cause. 42 C.F.R. § 405.750. The petition for reopening may also be the only available option if you are dissatisfied with a CHDR decision, and the amount in controversy is less than $100. 40. What is the process for Part A appeals? Part A generally covers institutionalized care, but you can ask for durable medical equipment or prosthetics as part of in-patient services while you are in an institution. If the HMO denies evaluations or devices you feel it should cover under Part A, you may need to pursue the Part A appeal process. 42 C.F.R. § 405.701. An intermediary makes the initial determination of Part A coverage. 42 C.F.R. §§ 405.702 & 405.704. If your HMO denies Medicare coverage for a requested device or service, you may ask the intermediary for reconsideration within 60 days of the date on the notice of initial determination. 42 C.F.R. §§ 405.710 & 405.711. You can extend this deadline for good cause. 42 C.F.R. § 405.712. The reconsideration consists of a review of the case file, including any written arguments or additional evidence you chose to submit. An employee of the intermediary who did not participate in the original decision does the reconsideration review. 42 C.F.R. § 405.715. You have 60 days to ask for an administrative hearing if: (1) you are not satisfied with the reconsideration decision; and (2) the amount in controversy is more than $100, 42 C.F.R. §§ 405.716, 405.720 & 405.722. You may extend this period for good cause. 42 C.F.R. § 405.722. If the administrative hearing decision is unfavorable, you have 60 days to request a review by the Departmental Appeals Board (DAB). 42 C.F.R. § 405.724; 20 C.F.R. § 404.967. You can submit additional evidence to the DAB. Generally, the DAB is concerned with whether there are errors in the administrative hearing decision — such as a misinterpretation of the law. You have the right to appeal an unfavorable DAB decision in federal court. 42 U.S.C. § 405(g); 42 C.F.R. § 405.730. You must file the case within 60 days of the DAB decision, and there must be at least $1,000 in controversy. ATTACHMENTS* TO CHAPTER 11 Explanation of Your Medicare Part B Benefits - (Example 1) Explanation of Your Medicare Part B Benefits - (Example 2) Explanation of Your Medicare Part B Benefits - (Example 3) Explanation of Your Medicare Part B Benefits - (Example 4) Request for Review of Part B Medicare Claim *Attachments are available only in hard copy. Call 1-800-776-5746 to ask for a copy of this chapter with the attachments. Endnotes Note 1 - If you are hospitalized or in a skilled nursing facility, more extensive dental coverage is available under Part A. Note 2 - However, Medicare will apparently pay for a Visualtek read/write system, an electronic device which can magnify an item to over 60 times its original size, as a reasonable and necessary medical/optical aid for use with low vision. Medicare Fair Hearing Decision, HIC No. 062-44-0658-A, 1980. Note 3 - Qualified railroad retirement beneficiaries may file their requests at a Railroad Retirement Board office. ---------- Chapter 12 VETERAN'S ADMINISTRATION (VA) Table of Contents Question 1. Does the Veterans Administration have programs to help me access assistive technology? 12-1 2. Who is eligible for VA benefits? 12-1 3. How can I apply for VA benefits? 12-2 4. Which programs will pay for specially adapted housing? 12-3 5. Which programs will pay for special housing adaptations? 12-4 6. What other VA programs may pay for housing or housing adaptations? 12-5 7. Are there VA programs that will pay for automobiles or adaptations to automobiles? 12-5 8. Can I get a clothing allowance related to assistive technology? 12-6 9. What types of vocational training and related assistive technology can I get through VA? 12-7 10. Who is eligible for vocational rehabilitation services? 12-7 11. How do I apply for rehabilitation programs? 12-8 12. How long do rehabilitation services last? 12-8 13. What assistive technology is available as part of my rehabilitation plan? 12-8 14. What types of medical equipment can I get while I am in rehabilitation? 12-9 15. Can I get prosthetic devices and services through VA? 12-10 16. What assistive technology is available for blind veterans? 12-13 17. What other medical equipment can I get through VA? 12-13 18. What is the VA's appeal process? 12-14 Chapter 12 VETERANS ADMINISTRATION 1. Does the Veterans Administration have programs to help me access assistive technology? If you are a veteran with a service-connected (and sometimes non-service-connected) disability, you may be able to get assistive technology devices and services through the Veterans Administration (VA). Programs that provide assistive technology include: * Vocational rehabilitation and education programs; * Prosthetics and other medical supplies; * Grants for automobiles and automobile adaptations; and * Loans and grants for adapted homes and adaptations to existing homes. 2. Who is eligible for VA benefits? Veterans who leave active military service with an honorable or general discharge are eligible for VA benefits. 38 C.F.R. § 3.1(d). Active service generally means full-time service as: * A member of the Army, Navy, Air Force, Marines, or Coast Guard; * Certain World War II Merchant Marine services; or * A commissioned officer of the Public Health Service, the Environmental Services Administration, or the National Oceanic and Atmospheric Administration. If you completed at least six years of honorable service in the Selected Reserves, you may receive home-loan benefits even if you were not an active service member. An honorable or general discharge will qualify you for most VA benefits. Some VA benefits require wartime service. Veterans who have non-service-connected disabilities (such as diabetes) are entitled to pension benefits which may include assistive technology such as prosthetics. Veterans with less than fully honorable discharges can get basic eligibility for VA benefits through successful application to the military's Discharge Review Boards or Boards for Correction of Military Records. The VA may grant basic eligibility for benefits through a "Character of Service Determination" in all cases except those few that include a bad conduct or dishonorable discharge given as part of the sentence of a General Court Martial. 38 C.F.R. § 3.12 3. How can I apply for VA benefits? You can apply for benefits in various places, depending on what kind of benefits you need. Generally, you can apply for benefits that include assistive technology at your local VA office. VA claim form 21-526 is available at all VA regional offices and county Veterans' Service offices. When filing a claim with the VA for the first time, you should include a copy of your service discharge form (DD 214), which documents service dates and type of discharge. Or, simply give your full name, military service number, branch of service, and dates of service. Initial claims may include your statement and any medical or other documentation of your service-connected conditions. Once you file a claim, your VA file number ("C" number) or Social Security number becomes your identifier. The VA regional office will ask you for any additional information and schedule a C&P (compensation and pension) exam. The C&P exam will be at the VA medical facility nearest you. VA doctors, who are specialists in the conditions you claim and are not your treating physician, will examine you. The C&P exam reports go to the Adjudication Section of the VA regional office. There, the VA makes an initial determination based on the reports and all other evidence you submitted. You and your representative have the right to a copy of the C&P exam reports. In California VA regional offices are located at: Federal Building 11000 Wilshire Blvd. Los Angeles, CA 90024 310-235-6199 (Inyo, Kern, Los Angeles, Orange, San Bernardino, San Luis Obispo, Santa Barbara, and Ventura counties) 1301 Clay Street, Rm. 1300N Oakland, CA 94612 510-637-1325 24-hour recording 510-974-0138 (Northern California counties) 2022 Camino Del Rio North San Diego, CA 92108 619-297-8220 (Imperial, Riverside, and San Diego counties) 1201 Terminal Way Reno, NV 89520 775-329-9244 (Alpine, Lassen, Modoc and Mono counties) The toll-free number for the statewide office (including the Reno regional office) is: 1-800-827-1000. 4. Which programs will pay for specially adapted housing? You may be entitled to receive grants of up to $43,000 for building, buying, or remodeling an adapted home. 38 U.S.C. §§ 2101(a), 2102(a). To be eligible for a grant, you must be entitled to compensation for permanent and total service-connected disability due to: * Loss, or loss of use, of both lower extremities, requiring the use of braces, crutches, canes or a wheelchair; or * Blindness in both eyes (having only light perception) and loss, or loss of use, of one lower extremity; or * Loss, or loss of use, of one lower extremity, together with residuals of organic disease or injury; or the loss, or loss of use, of one upper extremity, which affects balance or propulsion so that you require the use of braces, canes, crutches or a wheelchair. 38 U.S.C. § 2101(a), 38 C.F.R. § 3.809(b). In addition, it must be medically feasible for you to live in the housing unit. The housing unit must be suitably adapted to your needs. You must be financially able to buy the house with help from the VA. You may receive a one-time grant of not more than 50 percent of the cost of building, buying or remodeling an adapted home, or paying off debt on a home you already bought, up to $43,000. 38 U.S.C. § 2101(a). For more information on specially adapted housing, ask the local VA regional office for its brochure 26-69-1 entitled Questions and Answers on Specially Adapted Housing and Special Housing Adaptations for Veterans. 5. Which programs will pay for special housing adaptations? You can be eligible for a one-time grant of up to $8,250 for special housing adaptations that the VA determines to be reasonably necessary. 38 U.S.C. §§ 2101(b), 2102(b). You may use the grant to adapt housing that you or your family owns or plans to purchase. You may also use the grant to help buy an already adapted residence. In this case, the VA will base the amount of the grant on the fair market value of the adaptations, not the cost. To be eligible, you must be entitled to compensation for permanent and total service-connected disability due to: * Blindness in both eyes; or * Anatomical loss, or loss of use, of both hands. 38 U.S.C. § 2101(b), 38 C.F.R. § 3.809a(b). Adaptations may include: special lighting; sliding doors; handrails; smoke, fire, and burglar detectors; intercoms; storage rooms for equipment; heating and cooling for those storage rooms; a covered porch; a swimming pool; fencing to overcome a safety hazard; additional outlets to accommodate equipment; special fixtures, switches, or doorknobs; adjustment of counters, cabinets, windows and doors; automatic garage door openers; special locks or devices to open and close doors; safety corrections; and other adaptations that the VA approves. 6. What other VA programs may pay for housing or housing adaptations? You may get loans or a loan guarantee from VA to supplement a grant to buy a specially adapted home or adaptations. You will need to have available loan guarantee entitlement. 38 U.S.C. § 3710. In addition, VA will pay for home improvements and structural alterations through the HISA (Home Improvements and Structural Alterations) program. HISA will pay for improvements necessary: to allow you to continue treatment; or to provide access to the home, and essential lavatory and sanitary facilities. For alterations, the VA will pay up to $4,100 if you are being treated for service-connected disabilities. It will pay up to $1,200 for non-service-connected disabilities if you are receiving post-hospital care or if you are rated 50 percent or more disabled. 38 U.S.C. §§ 1710(a), 1717. 7. Are there VA programs that will pay for automobiles or adaptations to automobiles? Yes. To be eligible, you must be a veteran of active military service; and must have service-connected loss of one or both hands or feet; or have permanent loss of use or permanent impairment of vision in both eyes. 38 C.F.R. § 3.808. If you are entitled to compensation for ankylosis (abnormal immobility) of one or both knees, or one or both hips, you also qualify for adaptive equipment for an automobile. 38 C.F.R. § 3.808(b). You must be physically and legally able to obtain a drivers' license under the applicable state standards. 38 C.F.R. § 3.808(c), 38 C.F.R. § 17.156. You may get adaptive equipment for an automobile, or up to $8,000 towards the purchase of an automobile or other conveyance, if you qualify. 38 U.S.C. § 3902(a). Adaptive equipment is defined as: "that equipment which must be part of or added to a conveyance manufactured for sale to the general public to make it safe for use by the [veteran] and to assist him or her in meeting the applicable standards of licensure of the proper licensing authority...[and includes] a basic automatic transmission for veterans who have lost or lost the use of a limb...[as well as] power steering, power brakes, power window lifts and power seats." 38 C.F.R. § 3.808(e) The term also includes: * air-conditioning equipment when necessary for your health and safety; * special equipment necessary to help you get into or out of the vehicle; * modification of the vehicle's interior to help you get in and out or operate the vehicle; and * other equipment that the Chief Medical Director of VA deems necessary for you. 38 C.F.R. § 17.157. VA will pay for adaptive equipment, and for repair, replacement, or reinstallation required because of a disability, and for the safe operation of a vehicle purchased with VA assistance or independently. VA may also reimburse you for repairs and adaptive equipment you purchased independently, subject to certain caps. 38 C.F.R. § 17.158. To apply, you should contact a VA regional office or the prosthetic office at a VA medical center. Ask for the Application for Automobile or Other Conveyance and Adaptive Equipment. You may be eligible for adaptive equipment for up to two vehicles at a time in a four-year period, except when the vehicle is not available for your use due to circumstances beyond your control. These circumstances include loss of the vehicle due to fire, theft, accident, court action, or when repairs are too expensive, or when a change in vehicles is necessary because of your physical condition. 38 C.F.R. § 17.158(a)(1). 8. Can I get a clothing allowance related to assistive technology? Yes. You may get an annual clothing allowance of $528.00 if you are entitled to compensation for a service-connected disability and: * The wheelchair, prosthesis or other appliance you use because of the disability tends to tear or wear out your clothing; 38 U.S.C. § 1162; or * The medication you use because of the disability damages your clothing. 38 C.F.R. § 3.810. 9. What types of vocational training and related assistive technology can I get through VA? As a disabled veteran, you may receive: * Employment assistance; * Self-employment assistance; * Training in a rehabilitation facility, sheltered workshop or home; * Educational training at a college or university; * Vocational training; * Apprenticeships or on-the-job training; or * On-farm training. If you are a severely disabled veteran, you may receive assistance to improve your ability to live independently. During vocational rehabilitation, you may get assistive technology to enable you to work - including prosthetic devices, other equipment and supplies, and transportation costs related to your disability. Any income you earn will affect the amount of your pension. 10. Who is eligible for vocational rehabilitation services? If you served in the Armed Forces after September 15, 1940, you are eligible to apply for vocational rehabilitation benefits for the 12-year period following either your discharge date or the date that you received a service-connected disability rating of 20 percent or greater. 38 C.F.R. § 21.41. You must also meet one of these four conditions: * You have a service-connected disability of 20 percent or more, which would entitle you to 20 percent compensation, or would do so if you did not receive military retirement pay. 38 C.F.R. § 21.40(a)(1). * You may also be eligible if you have less than a 20 percent disability rating and if you have a serious employment handicap and filed an original application before November 1, 1990. 38 C.F.R. § 21.40(a)(3); * You were discharged or released under other than dishonorable conditions, or you are hospitalized awaiting discharge or release for a disability which will likely be rated at 20 percent or more. 38 C.F.R. § 21.40(a)(2); * You need rehabilitation to overcome an employment handicap regardless of the percentage of disability rating awarded. 38 C.F.R. § 21.40(b). Vocational rehabilitation is not an absolute entitlement. Meeting the criteria entitles you to consideration for vocational rehabilitation. Generally, VA uses independent vocational rehabilitation experts to assess your aptitude, etc., and recommend a program that is designed for your abilities and interests. 11. How do I apply for rehabilitation programs? You should ask the local VA regional office for VA Form 28-1900, entitled Disabled Veterans Application for Vocational Rehabilitation. When you complete the application, send it to the VA regional office. 12. How long do rehabilitation services last? Generally, the training portion of a vocational rehabilitation program may not last for more than 48 months. You must complete your rehabilitation program within 12 years of discharge or of notice of diagnosis of a qualifying disability. After training, VA may provide counseling, job placement, and post-placement services for up to 18 more months. 13. What assistive technology is available as part of my rehabilitation plan? Supplies may include books, tools, and other supplies and equipment that are necessary for your rehabilitation program. 38 C.F.R. § 21.210(b). Supplies may be furnished during extended evaluations, during rehabilitation to the point of employability, while you get employment services, and in independent living services programs. 38 C.F.R. §21.210(b). The types of supplies available depend on your program. (See 38 C.F.R. §§ 21.212 and 21.214 for specific needs and availability.) Special equipment is available as necessary for you to participate in a rehabilitation program. Types of special equipment include: * Equipment for educational or vocational purposes, such as talking calculators if you are blind, or other equipment ordinarily used by nondisabled persons. 38 C.F.R. § 21.216(a)(1); * Sensory aids or prostheses, ranging from eyeglasses and hearing aids to closed circuit TV systems to amplify reading materials; and other items designed to mitigate or overcome the effects of your disability. 38 C.F.R. § 21.216(a)(2); * Modifications to improve access to programs, including adaptive equipment for automobiles, or adaptations or supplies to make your home useful for training or self-employment. 38 C.F.R. § 21.216(a)(3). Other incidental goods and services, such as calculators, may be provided at your case manager's discretion, if you need them to implement your rehabilitation plan. Generally, these costs may not exceed five percent of the training costs for any 12-month period. 38 C.F.R. § 21.156. Additionally, another VA program must find you ineligible for equipment before VA can authorize the equipment through a rehabilitation program. 38 C.F.R. § 21.216(b). The school or training facility will generally provide the supplies for you. 38 C.F.R. § 21.218(a). 14. What types of medical equipment can I get while I am in rehabilitation? While you are in a VA rehabilitation program, you may get: * Assistive technology such as prosthetic appliances, eyeglasses, and other corrective or assistive devices; and * Telecommunications, sensory and other technical aids and devices. 38 C.F.R. § 21.240(b). You can get these items during your initial evaluation, extended evaluation, rehabilitation to the point of employability, independent living services programs, employment services, and at other times when necessary to facilitate rehabilitation. 38 C.F.R. § 21.240(c). You can get these assistive technology items through VA medical centers. 38 C.F.R. § 21.242. 15. Can I get prosthetic devices and services through VA? Yes. You may apply for prosthetic devices and services to treat any condition when you are receiving outpatient, hospital, domiciliary or nursing-home care in a VA facility. Prosthetic aids include artificial limbs, braces, orthopedic shoes, hearing aids, wheelchairs, medical accessories, similar appliances including lifts and therapeutic and rehabilitative devices, and special clothing if necessary, based on a determination of feasibility and need. 38 C.F.R. § 17.150. VA will pay for repairs to prosthetic appliances, or similar appliances, therapeutic aids or devices when necessary and when the cost is reasonable. 38 C.F.R. § 17.122. VA will also pay for fitting and training in the use of prosthetic and similar appliances. 38 C.F.R. § 17.153. As a veteran who meets the basic requirements for outpatient medical treatment, you may get needed prosthetic services from VA: * For a service-connected disability or related condition; * For any medical condition if you have a service-connected disability rated at 50 percent or more or if you are a veteran receiving compensation as a result of treatment in a VA facility; * For a disability that caused your discharge or release from active service; * As a veteran participating in a VA vocational rehabilitation program; * As part of outpatient care to complete treatment of a disability for which hospital, nursing home or home care was provided; * As a veteran who gets an increased pension or allowance based on needing aid and attendance or being permanently housebound; * As a veteran of World War I or the Mexican Border period; and * As a former prisoner of war. Eligibility requirements for outpatient care are as follows. * VA must provide you with unlimited outpatient care: * For service-connected disabilities; * For any disability, if you have a 50 percent or more service-connected disability; * For that condition only, if you suffered an injury as a result of VA hospitalization. * VA must furnish you with outpatient care for any condition to prevent the need for hospitalization, to prepare for hospitalization, or to complete treatment after hospital care, nursing-home care, or home care if: * Your service-connected disability rates 30-40 percent; or * Your annual income is not greater than the maximum annual pension rate of a veteran who needs regular aid and attendance. * VA may provide you with outpatient care without limitation if: * You are in a VA-approved vocational rehabilitation program; * You are a former prisoner of war; * You are a World War I or Mexican Border period veteran; * You are a veteran who receives increased pension or compensation based on the need for regular aid and attendance of another person, or who is permanently housebound. * VA may provide you with outpatient care to avoid hospitalization, to prepare for hospitalization, or to treat a condition for which you were hospitalized if: * You are a veteran with a 0-20 percent service-connected disability; * You are a veteran who was exposed to a toxic substance during service in Vietnam, or to ionizing radiation following the detonation of a nuclear device, or to environmental contaminants in the Persian Gulf (for conditions related to such exposures); * You are a mandatory category veteran whose income is more than the pension rate for a veteran who needs regular aid and attendance; * You are a discretionary category veteran, subject to a copayment of $36 per outpatient visit; * You are an allied beneficiary, beneficiary of other federal agencies, and are a certain other non-veteran. * VA may provide you with appliances or repairs as a part of hospital care if: * A non-service-connected disability aggravates a service-connected disability; or * A non-service-connected disability is one for which hospital admission was authorized; or * A non-service-connected disability is associated with and aggravating a non-service-connected disability for which hospital admission was authorized; or * A non-service-connected disability is one for which treatment may be authorized under the provisions of § 17.47(f). 38 C.F.R. § 17 150(b). * VA may provide you with assistive technology if it is necessary as part of home care or nursing home care. 38 C.F.R. § 17.150(c) and (d). 16. What assistive technology is available for blind veterans? Assistive technology for blind veterans includes low-vision aids and training in their use, approved electronic and mechanical aids for the blind (38 C.F.R. § 17.154(b)) and their necessary repair and replacement. It also includes talking books, tapes and Braille literature from the Library of Congress. The HISA program may provide for special adaptations to homes. See question 6 for more information on HISA. You are eligible for VA blind services if your blindness is a service-connected disability, if you are entitled to compensation from VA for any service-connected disability, or if you are eligible for VA medical services. If you have corrected vision of 20/200 or less in the better eye or a field defect of 20 degrees or less, VA considers you blind. If you are a blind veteran, you need not be receiving compensation or a pension to be eligible for admission to a VA blind rehabilitation center or clinic, or to receive services at a VA medical center. 17. What other medical equipment can I get through VA? VA may supply a lift if: * You have loss, or loss of the use, of both lower extremities and at least one upper extremity; * A doctor has determined that you are incapable of moving to and from bed to a wheelchair without the aid of an attendant; and * A lift would accomplish the necessary maneuvers between bed and wheelchair, and is medically necessary. 38 C.F.R. § 17.151(c) & (d). VA may supply assistive listening devices, including telecaptioning television decoders, if you are profoundly deaf (rated 80% or more disabled for hearing impairment) and you are entitled to compensation on account of the hearing impairment. 38 C.F.R. § 17.152. 18. What is the VA's appeal process? You can appeal any rating decision made by a VA regional office. You must appeal a VA rating decision within one year of notification of the rating decision. You should file a written Notice of Disagreement with the office that made the rating decision. After the office receives the notice, it will give you a Statement of the Case setting forth the issue, facts, applicable law and regulations, and the reason for VA's decision. Within 60 days of receiving the Statement of the Case, or within one year from notice of the original rating decision (whichever is later), you must file an appeal with the Board of Veterans' Appeals (BVA). The next step is an appeal hearing before the BVA. This hearing can be held either in Washington, DC, or at a VA regional office. An advocate or an attorney may represent you. The BVA will conduct the hearing and issue a written decision regarding your benefits. BVA decisions are published. You can review them at VA regional offices. You may appeal a BVA decision to the Court of Veterans Appeals (CVA), a seven-judge court separate from the VA. You must file an appeal with the CVA within 120 days of the date the BVA mailed its final decision. The CVA will review the record that was available to the BVA but will not hear new evidence. Either party may appeal the CVA's decision to the U.S. Federal Court of Appeals and to the U.S. Supreme Court. For more information about the CVA's rules and procedures, contact the clerk's office at 625 Indiana Ave., NW, Suite 900, Washington, DC 20004, or call 1-800-869-8654. Attorneys may not charge more than $10 to represent you at any stage of a claim until the BVA has issued a final decision. Then, an attorney may enter into a retainer agreement to represent you at the CVA. The retainer agreement cannot exceed 20% of any retroactive award of benefits made after the CVA reverses the BVA's decision or sends it back to the BVA. Some legal services offices provide free paralegal or attorney representation to low-income veterans. Many recognized traditional veterans organizations provide free non-attorney representation for VA claimants. Among them are Disabled American Veterans, American Legion, and Veterans of Foreign Wars. County veterans service offices may also provide free non-attorney representation for VA claimants in conjunction with the California Department of Veterans Affairs. ---------- Chapter 13 RIGHTS TO ASSISTIVE TECHNOLOGY IN PUBLIC PROGRAMS Table of Contents Question 1. What agencies do the laws cover? 13-1 2. How can I know if these laws protect me? 13-2 3. What kind of actions are discriminatory under the laws? 13-3 4. I need a special device in order to participate in a public program. How can I get it? 13-4 5. Who decides which type of assistive technology I can get? 13-5 6. Must a public agency provide a telecommunication device for the deaf (TDD)? 13-6 7. Does a public agency always have to provide assistive technology? 13-6 8. What does an agency have to do if it finds a "fundamental alteration" or an "undue burden?" 13-7 9. Does a public agency have to provide a personal device? 13-8 10. Can a public agency make me ask for an accommodation before I need it? 13-8 11. Do I have to provide proof of my disability to get an accommodation? 13-8 12. What do I do if the agency refuses to give me the accommodations I need, or discriminates against me because of my disability? 13-8 13. How do I file an internal grievance or appeal with a public agency? 13-9 14. When and how do I file a complaint with a federal agency? 13-9 15. How do I know which federal agency should handle my complaint? 13-10 16. When and where can I file a lawsuit? 13-11 Attachment 13-12 Chapter 13 RIGHTS TO ASSISTIVE TECHNOLOGY IN PUBLIC PROGRAMS Federal and state laws guarantee the right of people with disabilities to participate in and receive the benefits of any public service to the same extent as other people. Public agencies that do not provide equal opportunities to people with disabilities are engaging in illegal discrimination. Public agencies and programs you may be familiar with are: Medi-Cal, California Children's Services (CCS), California Department of Education, California Department of Motor Vehicles, California Department of Rehabilitation, state courts, school districts, city and county agencies, and public transportation. The three main laws that prohibit discrimination based on disability; and require equal opportunities for people with disabilities are: * Section 504 of the Rehabilitation Act (Section 504); * The Americans with Disabilities Act (ADA); and * California's Unruh Civil Rights Act (Unruh Act). 1. What agencies do these laws cover? Section 504 Section 504 prohibits discrimination based on disability in two types of public programs: * Programs and activities conducted by federal agencies such as the Medicare program, the Social Security Administration and federal housing programs; and * Programs and activities conducted by any agency that receives federal money. Most public programs receive, directly or indirectly, some form of financial assistance from the federal government. The ADA The ADA extends the prohibitions of discrimination based on disability to all public agencies whether or not they receive federal funds. Under the ADA, "public entity" means any state or local government; any department, agency, special purpose district, or other part of a state or local government; the National Railroad Passenger Corporation; and any commuter authority. The ADA has five titles, like chapters in a book. Title II of the ADA says that public agencies cannot discriminate against people with disabilities in their programs, services, and activities. Besides setting out the specific obligations of public agencies, the ADA has a general requirement known as "program access." Program access entitles people with disabilities to effective access to the services provided to others. This means that, even if it cannot furnish a benefit as the law requires, an agency must use equally effective alternatives to provide the benefit. For example, if a city provides services in an older building and the cost of making the building accessible is so high that the law excuses the city from making the changes, it must still provide the same services at another accessible location. The Unruh Act The Unruh Act is a state law. It prohibits discrimination based on disability by any business establishment, which includes all public agencies. The Unruh Act does not provide for assistive technology. But, any violation of the ADA is also a violation of the Unruh Act. This is important since the state law provides remedies different from those under the ADA and Section 504. See Question 16 below for more information. 2. How can I know if these laws protect me? To be protected by these laws you must meet two conditions. First, you must be qualified for the program or for the benefit. Secondly, you must have a legally recognized disability. You are "qualified" if, with or without reasonable accommodations, you meet the basic eligibility criteria for participation. 28 C.F.R. § 35.104. For instance, to get a driver's license, you must satisfy the safety and competency standards established by the DMV. If you have a disability that prevents you from passing the required practical and writing tests (even if you have reasonable accommodations), you will not qualify for a driver's license. You may meet the standard for a "legally recognized disability" in one of three ways: * You have a physical or mental impairment that substantially limits one or more of your major life activities (such as learning, working, seeing, hearing, speaking, performing manual tasks, walking, breathing, and caring for yourself); or * You have a record of such an impairment (such as a disease that is in remission); or * Other people believe you have such an impairment (for example, you have scarring from severe burns, but have no impairments). 42 U.S.C. § 12102;(2) 28 C.F.R. § 35.104, 28 C.F.R. § 36.104 (ADA); 29 U.S.C. § 706(8)(B); 34 C.F.R. § 104.3(2) (Rehabilitation Act); California Civil Code § 54(b). 3. What kind of actions are discriminatory under the laws? The main purpose of these laws is to ensure that you have access to the same public programs, services and activities as others have. The laws say that public agencies cannot take any action that has the purpose or effect of denying you any right, privilege, advantage, or opportunity enjoyed by others. The ADA and Section 504 establish the following actions as discriminatory. * Using eligibility criteria that might screen out qualified people with disabilities. 28 C.F.R. § 35.130(b)(8) * Denying you the right to participate in or benefit from any benefit or service it provides to others. The agency must provide you benefits and services equal to those provided to others. They must give you equal opportunity to get the same result or benefits, or to reach the same level of achievement as others. 28 C.F.R. § 35.130(b)(1) * Providing you different and separate benefits or services than are provided to others, unless such action is necessary to provide you with benefits or services that are as effective as those provided to others. 28 C.F.R. § 35.130(b)(1)(iv). The agency may not deny you the opportunity to participate in its regular programs. 28 C.F.R. § 35.130(b)(2). Moreover, the agency must administer its services, programs and activities in the most integrated setting appropriate to your needs; 28 C.F.R. § 35.130(b)(8)(d) * Using criteria and methods of administration that deny you access to its programs and activities. 28 C.F.R. 35.130(b)(3). The phrase "criteria and method of administration" includes both the official written policies of the agency and its actual practices; * Perpetuating discrimination against you by providing significant assistance to an agency that discriminates on the basis of disability in providing any benefit or service to applicants and beneficiaries of the agency; 28 C.F.R. § 35.130(b)(1)(v) * Selecting sites that have the effect of excluding you, denying you benefits, or otherwise subjecting you to discrimination; 28 C.F.R. § 35.130(b)(4)(i) * Using criteria that discriminates against you on the basis of disability in selecting contractors. 28 C.F.R. § 35.130(b)(5); and, * Discriminating against you on the basis of disability in granting licenses and certifications. 28 C.F.R. § 35.130(b)(6). 4. I need a special device in order to participate in a public program. How can I get it? To make sure its programs and activities are fully accessible to you, a public agency must provide you with appropriate accommodations. One way to accommodate you is to provide assistive technology. This may include any device that enables you to overcome your disability so that you can participate in the program or activity. The ADA and Section 504 do not use the term "assistive technology." Instead, they use terms such as "auxiliary aids for effective communication and modification to policies, practices and procedures." Auxiliary Aids Public agencies must communicate with applicants and participants with disabilities as effectively as they communicate with others. 28 C.F.R. § 35.160. To do so, if necessary, these agencies must furnish auxiliary aids and services. 28 C.F.R. § 35.160(b)(1). Auxiliary aids and services are a wide range of services and devices such as: * Qualified interpreters, note takers, transcription services, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed captioned decoders, open and closed captioning, telecommunications devices, Videotext displays, etc.; * Qualified readers, taped texts, audio recordings, brailled materials, large print materials, etc.; * Acquisition or modifications of equipment or devices; and * Other similar services and actions. 28 C.F.R. § 35.104. Reasonable Modifications Public agencies must make reasonable modifications to their policies, practices, and procedures when necessary to afford equal treatment to people with disabilities. For instance, an agency may have to change its procurement policy to be sure any computer equipment it buys is accessible. Public agencies cannot make you pay for the actions they take to accommodate you. Appendix to 34 C.F.R. § 104; 28 C.F.R. § 35.130(f); 5. Who decides which type of assistive technology I can get? Most public agencies have an ADA or Section 504 coordinator who can tell you about the process for requesting accommodations. You and the agency should work together to find the right accommodation. Public agencies must, however, consider your requests first. 28 C.F.R. § 35.160(b)(2). They must honor your preference unless they can show that an equally effective accommodation exists. See DOJ's Title II Tech. Assist. Manual, Section II-7.1100. For example, if you ask for information in Braille instead of audio tapes, the agency should honor your preference for Braille. You should make your accommodation request in writing. Identify yourself as a person with a disability, describe how your disability affects your participation in the program, and set out the specific accommodations (including assistive technology) you need. Your request should also specify a date by which you expect an answer to your request. 6. Does a public agency have to provide a telecommunication device for the deaf (TDD)? Agencies that communicate with the public by telephone must provide TDDs, or use equally effective telecommunication systems to communicate with people who have impaired hearing or speech. 28 C.F.R. § 35.161. Generally, they can meet this requirement by using relay services. See DOJ's Title II Tech. Assist. Manual, Section II-7.2000. If an agency has telephones for public use, it must also make TDDs available for people who have impaired hearing or speech. For example, a city that provides telephones for public use at its airport, must also install TDDs at the same location. 7. Does a public agency always have to provide assistive technology? No. A public agency does not have to provide assistive technology when it would: * Fundamentally alter the nature of the program, or * Create an undue financial or administrative burden. Fundamental Alteration of a Program A "fundamental alteration" is one that is so great that it changes the essential nature of the service or program. See DOJ's Title III Tech. Assist. Manual, Section III-4.3600. Undue Financial Burden An "undue burden" is a significant difficulty or expense on the public agency. 28 C.F.R. § 36.104. To determine whether providing assistive technology creates an undue financial burden, the agency must consider every aspect of its funding and operations: * The nature and cost of the action; * The overall financial resources of the site or sites involved, the number of persons employed at the site, the effect on expenses and resources, legitimate safety requirements necessary for safe operation, or any other impact of the action on the operation of the site; * The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or agency; and * If applicable, it must also consider every aspect of its parent corporation or agency's funding and operation. 28 C.F.R. § 35.164 8. What does an agency have to do if it finds a "fundamental alteration" or an "undue burden?" When an agency finds that providing the assistive technology you need would fundamentally alter the program, or would create an undue financial burden, it must provide you with an alternate, if one exists, that would not result in an alternation or burden. The alternative must ensure that, to the maximum extent possible, you can participate in or receive its programs and services. 28 C.F.R. § 35.164. Under the ADA, if a public agency decides that an action would result in a fundamental alteration or an undue burden, the decision must be made by the head of the agency. A written statement of the reasons for reaching the conclusion must accompany the decision. 28 C.F.R. § 35.164. 9. Does a public agency have to provide a personal device? No. Public agencies do not have to provide individually prescribed devices, or other devices of a personal nature. 28 C.F.R. § 35.135. Personal devices are those items that you use regardless of your participation in a public program. Examples include wheelchairs, durable medical equipment, prosthetic devices, etc. Many of these items, however, are available as health benefits under public health insurance plans (including Medi-Cal and CCS.) Beneficiaries of these programs are entitled to these devices if they are eligible. 10. Can a public agency make me ask for an accommodation before I need it? Yes. An agency can ask you to request an accommodation a reasonable time before you will need the accommodation so the agency can make appropriate arrangements. See DOJ's Title III Tech. Assist. Manual, Section III-4.6100. In court proceedings, (including mediation, arbitrations and administrative hearings), you must follow established procedures to ask for the device or assistance you need. For instance, if you have a hearing impairment you may request an assistive listening device or computer-aided transcription system. You must, however, give five days advance notice of your need. Cal Civ Code § 54.8(a). See PAI's publication Access to the Courts. 11. Do I have to provide proof of my disability to get an accommodation? You might. Public agencies only have to accommodate known disabilities. If your disability is not obvious, or the agency cannot verify your disability because it communicates with you only by phone, it may ask for proof of your disability. To show that you are entitled to accommodation, it is best to get a letter from a medical professional who is familiar with you and your disability. See Question 16 of Chapter 15 in this manual for suggestions on what your letter should say. 12. What do I do if the agency refuses to give me the accommodations I need, or discriminates against me because of my disability? If a public agency refuses to provide you with the accommodations you need, or discriminates against you because of your disability, you can: * File an internal grievance or appeal with the public agency; or * File a complaint with the federal agency that has authority over the agency; or * File a lawsuit. 13. How do I file an internal grievance or appeal with a public agency? If you want to file an internal grievance, you should talk to the ADA or Section 504 coordinator to find out what the agency's grievance process is. You should file your internal grievance as soon as possible. You do not have to file an internal grievance before you file a complaint with the federal agency that has authority over the agency. 14. When and how do I file a complaint with a federal agency? You may file a complaint with the federal agency that has authority to oversee the public agency's compliance with the ADA. 28 C.F.R. § 35.170(a), (c). The federal agency must receive your complaint no later than 180 days from the date of the alleged discrimination. 28 C.F.R. § 35.170(b). If you don't know which federal agency to file with, you can file with the United States Department of Justice (DOJ). The DOJ will forward your complaint to the appropriate federal agency. To file a complaint, send a letter to the DOJ that includes: * Your full name, address, and telephone number; * The name of the party discriminated against if you are filing on someone else's behalf; * The name of the agency that you believe discriminated against you; * A description of the discrimination; * The dates that the discrimination took place; * The names of the people who you believe discriminated against you; and * Any other information that you believe necessary to support your complaint. The address for the Department of Justice is: Disability Rights Section Civil Rights Division U.S. Department of Justice Post Office Box 66738 Washington, D.C. 20035-6738 15. How do I know which federal agency should handle my complaint? The appropriate federal agency is the one that has jurisdiction over the agency that discriminated against you. The following list shows which federal agencies have jurisdiction over different areas: * Department of Agriculture: Farming and raising livestock, including extension services. * Department of Education: Education systems, institutions (other than health-related schools) and libraries. * Department of Health and Human Services: Schools of medicine, dentistry, nursing, and other health-related schools; health care and social service providers and institutions, (including "grass-roots" and community services organizations and programs); and preschool and day care programs. * Department of Housing and Urban Development: State and local public housing, housing assistance and housing referral. * Department of Interior: Lands and natural resources, parks and recreation, water and waste management, environmental protection, energy, historic and cultural preservation, and museums. * Department of Justice: Public safety, law enforcement, administration of justice (including courts and correctional institutions); commerce and industry (including banks and finance, consumer protection, and insurance); planning, development, and regulation (unless otherwise assigned); state and local government support services; and all other government functions not assigned to other agencies. * Department of Labor: Labor and the work force. * Department of Transportation: Transportation, including highways, public transportation, traffic management (non-law enforcement), automobile licensing and inspection, and driver's licensing. 16. When and where can I file a lawsuit? From the moment you experience discrimination you have the right to file a lawsuit in court. You do not have to file a grievance with the public agency or file a complaint with a federal agency before you file a lawsuit. For violations of the ADA and Section 504, you would file a lawsuit in federal court. It is a good idea to have an attorney represent you in court, although you can represent yourself. Before you go to court, you need to file a Tort Claims Act request within 180 days of the alleged discrimination. Court actions under the ADA and Section 504 for discrimination on the basis of disability by a public agency must be filed within one year of the date of discrimination. You can go to court even if the federal agency finds no discrimination. Under the Unruh Act, you could be able to recover damages for a violation of the ADA even if the public agency didn't intend to discriminate against you. The Unruh Act states that a violation of the ADA is also a violation of the Act. California Civil Code § 51. If you win, you will be entitled to $1,000 or three times your actual monetary loss, whichever is greater, and attorneys fees. California Civil Code § 52(a). If you want damages in an amount less than $5,000, you can file a complaint in small claims court. California Civil Code § 52.2; Code of Civil Procedure § 116.220. Small claims courts have jurisdiction only over monetary claims so you cannot get an order providing you with assistive technology. Attorneys cannot appear in small claims courts. You are limited to two small claims actions in which the amount demanded does not exceed $2,500 anywhere in the state in any calendar year. California Code of Civil Procedure § 116.231. ATTACHMENT TO CHAPTER 13 SAMPLE DOCTOR'S LETTER SUPPORTING A NEED FOR AN ACCOMMODATION To Whom it May Concern: [Your name] is my patient and has a disability that causes functional limitations. [Your name] has the following functional limitations: [Your doctor should list your limitations here that apply to your ability to participate in the public program or activity. Example: has limited reach or must use a wheelchair to get around.] [Your name] may be accommodated for his/her disability in the following way: [Your doctor should list the accommodations you need here.] Example: by using accessible buildings and equipment which he can reach and use effectively. Sincerely, Your Doctor ---------- Chapter 14 RIGHT TO ASSISTIVE TECHNOLOGY FROM PRIVATE BUSINESSES Table of Contents Question 1. What is the ADA? 14-2 2. What is Section 504? 14-2 3. Is there any California law that prohibits discrimination by private businesses? 14-2 4. What private businesses does the ADA cover? 14-3 5. What private businesses do the state laws cover? 14-4 6. What is prohibited by the ADA? 14-5 7. Who is protected from discrimination by private businesses? 14-5 8. I need a special device in order to enjoy a service from a private business. How can I get it? 14-7 9. Who decides which type of assistive technology I can get? 14-8 10. Must a private business provide a Telecommunication Device for the Deaf (TDD)? 14-9 11. Must a place of lodging or a hospital provide closed caption decoders? 14-9 12. When does a private business not have to provide assistive technology? 14-9 13. What must a private business do if it finds a fundamental alteration or an undue burden? 14-11 14. Can a private business prevent me from receiving its goods and services? 14-11 15. Does a private business have to provide a personal device? 14-11 16. Can a private business charge me a fee for assistive technology? 14-12 17. Can a private business require me to request an accommodation before I need it? 14-12 18. Do I have to provide proof of my disability to get an accommodation? 14-12 19. What can I do if the private business doesn't provide me with assistive technology? 14-12 Attachment 14-15 Chapter 14 RIGHT TO ASSISTIVE TECHNOLOGY FROM PRIVATE BUSINESSES The right to assistive technology from private businesses is part of your right to have full and equal enjoyment of goods and services. Federal and state laws generally refer to private businesses as public accommodations. Public accommodations are privately owned or privately operated businesses. Most businesses -- such as stores, restaurants, hotels; offices of lawyers, doctors, and accountants; and private schools and colleges -- are public accommodations. In this chapter, we will use the more commonly understood term of "private businesses." Private businesses must, by law, avoid discrimination on the basis of disability. Avoiding discrimination means that they must make sure that people with disabilities have an equal opportunity to benefit from their goods and services. At times, they must furnish some form of additional help so that you can enjoy their goods and services. Providing assistive technology is one of the ways private businesses can assist you. There are four laws that may require private businesses to provide you with assistive technology. They are: * The Americans with Disabilities Act (ADA); * Section 504 of the Rehabilitation Act (Section 504); * The Unruh Civil Rights Act (Unruh Act); and * California Civil Code Section 54. Section 504, the Unruh Act, and Civil Code Section 54 establish requirements very similar to those of the ADA. In this chapter, we will concentrate on the ADA. We will, however, point out the main differences among the laws. We will also refer to a manual developed by the United States Department of Justice (DOJ) which explains the ADA's requirements for private businesses. We will cite to this manual as DOJ's Title III Tech. Assist. Manual. If you would like to have a copy of this manual, contact the DOJ's ADA information line at (800) 514-0301 and ask for the Technical Assistance Manual on Title III of the ADA. 1. What is the ADA? The ADA is a federal law. It makes discrimination based on disability illegal. It gives civil rights protection to people with disabilities and prohibits discrimination in private businesses, in employment and in public services. The ADA has several titles -- like chapters in a book. Title III of the ADA applies to private businesses. Title III prohibits private businesses from discriminating against people with disabilities in the goods, services, facilities, privileges, advantages, and accommodations they provide. This means you have a right to enjoy the goods and services of a private business to the same extent as any other person. Title III gives you the right to ask for and receive an accommodation if it is necessary for your full and equal enjoyment of the business's goods and services. Such an accommodation may include assistive technology. 2. What is Section 504? Section 504 of the Rehabilitation Act is also a federal law. It prohibits any business that gets federal financial assistance from discriminating on the basis of disability. Few federal agencies provide financial assistance to private businesses. As a result, we will not discuss Section 504 in this chapter. To learn more about Section 504, read Chapters 13 and 15 of this manual. 3. Is there a California law that prohibits discrimination by private businesses? Yes. There are two state laws that you need to know about: * The Unruh Civil Rights Act (Unruh Act) and * California Civil Code Section 54. The Unruh Act prohibits businesses from discriminating against people with disabilities. California Civil Code § 51. The Unruh Act does not have any specific requirements for businesses to provide assistive technology. But, it says that a violation of Title III of the ADA is also a violation of the Unruh Act. Moreover, the Unruh Act uses terms and concepts very similar to the ADA. There are, however, some differences between the two laws. Each law defines private businesses in slightly different ways. As a result, some businesses may be covered by one law but not the other. The Unruh Act differs from the ADA in that it provides its own remedies, which are different from those under the ADA. See question 19 below. Civil Code Section 54 and its related sections are state laws. Section 54 says that people with disabilities have the same rights as the general public to the full and free use of medical facilities, including hospitals, clinics and physicians' offices, public facilities and other public places. Like the Unruh Act, Section 54 has few specific requirements for providing assistive technology, but Section 54 also says that a violation of the ADA is a violation of Section 54. This means if you experience discrimination in violation of the ADA, you can sue under the ADA as well as under one of the two state laws. Section 54's remedies are also different from those under the ADA. Therefore, you need to know when and where to use each law. 4. What private businesses does the ADA cover? The ADA covers private businesses that own, lease, are leased to, or operate a place of public accommodation. A place of public accommodation affects commerce and falls within one of the following categories: * Places of lodging (inns, hotels and motels, except for owner-occupied establishments renting fewer than six rooms); * Places that serve food or drink (restaurants and bars); * Places of exhibition or entertainment (motion picture houses, theaters, concert halls, and stadiums); * Places of public gathering (auditoriums, convention centers, and lecture halls); * Sales or rental establishments (bakeries, grocery stores, hardware stores, and shopping centers); * Service establishments (Laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, and hospitals); * Public transportation terminals, depots, or stations (not including facilities relating to air transportation); * Places of public display or collection (museums, libraries, and galleries); * Places of recreation (parks, zoos, and amusement parks); * Places of education (elementary, secondary, and under-graduate or post-graduate private schools); * Social service center establishments (day care centers, senior citizen centers, homeless shelters, food banks, and adoption agencies); and * Places of exercise or recreation (gymnasiums, health spas, bowling alleys, and golf courses). DOJ's Title III Tech. Assist. Manual, Section III-1.2000. Public entities, religious organizations or entities controlled by religious organizations, and some private clubs are exempt from complying with the ADA's requirements for private businesses. 42. U.S.C. 12187; 28 C.F.R. § 36.102.(e). 5. What private businesses do the state laws cover? The Unruh Act applies to all business establishments of every kind whatsoever. California Civil Code § 51. This is a broader definition than the one under the ADA. Thus, potentially, there may be some entities that are covered by the Unruh Act but not by the ADA. California Civil Code Section 54 covers medical facilities (hospitals, clinics, physicians' offices); all common carriers (airplanes, trains, buses, etc.); telephone facilities; adoption agencies; private schools; lodging places (hotels, motels); places of public accommodation (amusement or resort); and other places to which the general public is invited. 6. What is prohibited by the ADA? The purpose of the ADA is to prohibit the exclusion, segregation, or the denial of people with disabilities of equal opportunities based on presumptions, patronizing attitudes, fears, or stereotypes about disability. To accomplish this purpose, a private business may not discriminate against you on the basis of disability in the full and equal enjoyment of its goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a). In addition, private businesses may not provide you with goods, services, facilities, privileges, advantages, and accommodations that are different or separate from those provided to others, unless such action is necessary to ensure that you will receive goods and services that are as effective as that provided to others. 28 C.F.R. § 36.202(c). Private businesses are also prohibited from doing indirectly what they cannot do directly. In other words, they may not enter into contractual, licensing, and other arrangements which have the effect of discriminating against you. 28 C.F.R. § 36.2029(a). 7. Who is protected from discrimination by private businesses? The ADA protects individuals with disabilities from discrimination by private businesses. Disability means: * having a physical or mental impairment that substantially limits one or more of your major life activities (such as personal care, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working); or * having a record of such an impairment (such as a disease in remission); or * being regarded as having such an impairment (such as a person who has severe burns but has no impairments). 42 U.S.C. § 12102(2); 28 C.F.R. § 36.104. [Note 1] 8. I need a special device in order to enjoy a service of a business. How can I get it? To make sure you have access to its goods and services to the same extent as others, a private business must provide you with appropriate accommodations. One form of accommodation is provision of assistive technology which includes any device that enables you to overcome your disability so that you can enjoy or receive the benefits of a good or service. The ADA does not use the term assistive technology. Instead, it uses terms such as auxiliary aids for effective communication and reasonable modification to policies, practices, and procedures. 42 U.S.C. §§ 12182(b)(2)(A)(ii) and (iii). Auxiliary Aids Private businesses must communicate with individuals with disabilities as effectively as they communicate with others. 28 C.F.R. § 36.303. To do so, if necessary, these entities must furnish auxiliary aids and services. Use of the most advanced technology is not required so long as effective communication is ensured. Appendix to 28 C.F.R. § 36.303. An example of a business providing an auxiliary aid would be a hospital using a computer assisted real-time transcription service for communicating with hearing-impaired patients. Another example would be a private school providing taped texts for vision-impaired students. Factors that should be considered in deciding what assistive technology is necessary for effective communication in your case include your impairment, what devices and services are available, and the length and complexity of the communication involved. DOJ's Title III Tech. Assist. Manual, Section III-4.3200. Auxiliary aids and services are a wide range of services and devices such as: * qualified interpreters, notetakers, transcription services, written materials, telephone handset amplifiers, assistive listening devices and systems, telephones compatible with hearing aids, closed captioned decoders, open and closed captioning, telecommunications devices for deaf persons, videotext displays, and other effective methods of making aurally delivered materials available to individuals with hearing impairments; * qualified readers, taped texts, audio recordings, brailled materials, large print materials, or other effective methods of making visually delivered materials available to individuals with visual impairments; 28 C.F.R. § 36.303(b)(1) * acquisition of new or modifications of existing equipment or devices; Appendix to 28 C.F.R. § 36.303 and * other similar services and actions. Appendix to 28 C.F.R. § 303. Reasonable Modifications In addition, private businesses must make reasonable modifications to their policies, practices, and procedures when such modifications are necessary to afford equal treatment to people with disabilities. For instance, a large bank may have to modify its procurement policy requiring that the ATM machines purchased or rented by the bank have accessible features. 9. Who decides which type of assistive technology I can get? As a general rule, finding the right accommodation should be an interactive process in which you and the private business consider different options together. But ultimately, the business entity can choose among various alternatives as long as the result is effective accommodation. Appendix to 28 C.F.R. § 36.303. For example, if a person with a visual impairment attends a play, the theater may decide to provide the patron with a tape-recording of its printed program. In such case, the theater will not have to provide a brailled version of the program as well. We suggest you make your accommodation request in writing. In your request you should identify yourself as a person with a disability, describe the way your disability affects your enjoyment of the business's goods and services, and identify the specific accommodations, including assistive technology, you need. Your request should also specify a date by which you expect an answer to your request. 10. Must a private business provide a Telecommunication Device for the Deaf (TDD)? When a private business offers its customers, clients, patients, or participants the opportunity to make outgoing telephone calls on more than an incidental convenience basis, it must also make available, on request, a TDD for the use of an individual who has impaired hearing or speech. 28 C.F.R. § 36.303(d)(1). But the business does not have to use a TDD for receiving and making telephone calls as part of its operation. 28 C.F.R. § 36.303(d)(2). For example, TDD's must be made available, on request, to hospital patients or hotel guests since these places offer their customers or patients the opportunity to make outgoing telephone calls on more than an incidental convenience basis. On the other hand, retail stores, doctors' offices, restaurants, or similar establishments are generally not required to have TDD's because they do not provide their clients and customers the opportunity to make outgoing telephone calls on more than an incidental convenience basis. 11. Must a place of lodging or a hospital provide closed caption decoders? Yes. Places of lodging that provide televisions in five or more guest rooms in a lodging, and hospitals that provide televisions for patient use must provide, upon request, a means of decoding captions for use by an individual with impaired hearing. 28 C.F.R. § 36.303(e). 12. When does a private business not have to provide assistive technology? A private business does not have to provide assistive technology when it would: * fundamentally alter the nature of the business, or * create an undue financial burden. 28 C.F.R. § 36.303(a). Fundamental Alteration A fundamental alteration is a modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, and accommodations of the business. DOJ's Title III Tech. Assist. Manual, Section III-4.3600. Undue Burden An undue burden means a significant difficulty or expense on the business. To determine whether the provision of assistive technology such as an auxiliary aid creates an undue financial burden, a business entity must consider all resources available for use in the funding and operation of the business. Factors to be considered include: * the nature and cost of the action; * the overall financial resources of the site or sites involved, the number of persons employed at the site, the effect on expenses and resources, legitimate safety requirements necessary for safe operation, or any other impact of the action on the operation of the site; * the geographic separateness, and the administrative or fiscal relationship of, the site or sites in question to any parent corporation or entity; * if applicable, the overall financial resources of any parent corporation or entity, the overall size of the parent corporation or entity with respect to the number of its employees, the number, type, and location of its facilities; and * if applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity. 28 C.F.R. § 36.104; DOJ's Title III Tech. Assist. Manual, Section 111-4.3600. 13. What must a private business do if it finds a fundamental alteration or an undue burden? When a private business determines that providing an accommodation would fundamentally alter its business or create an undue financial burden, it must provide you an alternate accommodation, if one exists, that would not result in an alteration or burden. 28 C.F.R. § 36.303(f). 14. Can a private business prevent me from receiving its goods and services? A private business is not required to permit an individual with a disability to participate in or benefit from its goods and services when that individual poses a direct threat to the health and safety of others. 28 C.F.R. § 36.208(a). A direct threat means a significant risk to the health and safety of others which cannot be eliminated by a modification of policies, practices, and procedures of the private business or by the provision of auxiliary aids and services. 28 C.F.R. § 36.208(b). The determination that a direct threat exists requires an individualized assessment based on reasonable judgment that relies on current medical evidence, or on the best available objective evidence to determine: * the nature, duration, and the severity of the risk, * the probability that the potential injury will actually occur; and * whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids will mitigate or eliminate the risk. 28 C.F.R. § 36.208(c). 15. Does a private business have to provide a personal device? No. Private businesses do not have to provide individually prescribed devices, or other devices of a personal nature. 28 C.F.R. § 36.306. Personal devices are those items that you use in your daily life. Examples include wheelchairs, durable medical equipment, prosthetic devices, etc. In some cases, however, you may be entitled to a device that can be described as personal. For instance, an entity putting on a conference at a convention hall may have to provide assistive listening devices for individuals with hearing impairments if it knows that such individuals will be attending the conference. 16. Can a private business charge me a fee for assistive technology? No. A private business cannot impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of auxiliary aids or reasonable modifications in policies, practices, or procedures. 28 C.F.R. § 36.301(c). 17. Can a private business require me to request an accommodation before I need it? Yes. A private business can require you to request an accommodation a reasonable time prior to when the accommodation is needed so it can make appropriate arrangements. For example, a theater may reasonably require that patrons with visual impairments who need taped versions of the program make their request a few days prior to the performance. This would allow the theater to tape the program and ensure that a cassette player be available at the performance. 18. Do I have to provide proof of my disability to get an accommodation? You might. Private businesses are only required to accommodate known disabilities. If your disability is not obvious or if the private entity cannot verify your disability because it communicates with you only by phone, it may request proof of your disability. To show that you are entitled to accommodation, it is best to get a letter from a medical professional who is familiar with you and your disability. See the attached sample letter for suggestions on what your doctor's letter should say. 19. What can I do if the private business doesn't provide me with assistive technology? Generally, there are two things that you can do. First, you can file a complaint with the United States Department of Justice. If the Department determines that a person or group of persons is engaged in a pattern or practice of discrimination in violation of the ADA, or if the discrimination raises an issue of general public importance, it could file an action against the private entity. 28 C.F.R. § 36.503. Any action taken by the Department would be on behalf of the United States. The Department does not act as your attorney or representative. If the Department prevails in the lawsuit, the court can require the business to provide an auxiliary aid or service or to modify a policy, practice, or procedure. If requested by the Department, the court could award monetary damages to you as an individual victim of discrimination. The court could assess a civil penalty against the covered entity in an amount not exceeding $50,000 for the first violation and not exceeding $100,000 for any subsequent violations. 28 C.F.R. § 36.504. However, the Department would not be your lawyer and would not sue for monetary damages for you. To file a complaint, write a letter to: Department of Justice Disability Rights Section Civil Rights Division P.O. Box 66738 Washington D.C. 20035-6738 In the letter, you should include: * your full name, address, and telephone number; * the name and address of the business, organization, or institution that you believe has discriminated against you; * a description of the act or acts of discrimination, the date or dates of the discriminatory acts, and the name or names of the individuals who you believe discriminated against you; and * other information that you believe necessary to support your complaint. Second, you could file a lawsuit to require the private business to provide an auxiliary aid or service or modify a policy, practice, or procedure under the ADA, Section 504, the Unruh Act, or Section 54. You, in your private lawsuit, cannot recover monetary damages against private businesses under the ADA. 28 C.F.R. § 36.504(a). But if you prevail in court, you will be entitled to attorneys' fees. 28 C.F.R. § 36.505. If the business entity receives federal financial funding, you can sue under Section 504. You can recover monetary damages under Section 504 only if you prove that the business intended to discriminate against you. State laws, on the other hand, provide additional remedies. Under the Unruh Act or Section 54, you can recover monetary damages for a violation of the ADA. This is because these statutes state that a violation of the ADA is a violation of these laws. California Civil Code §§ 51 and 54(c). If you win, you will be entitled to three times your actual monetary loss or $1,000, whichever is greater, and attorneys' fees. California Civil Code § 52 and 54.3(a). You can recover under the Unruh Act or Section 54, but not both statutes. California Civil Code § 54.3(c). If the amount of damages is less than $5,000, you can file a complaint in small claims court. California Civil Proc. Code § 52.2. Importantly, no person may file more than two small claims actions in which the amount demanded exceeds $2,500 anywhere in the state in any calendar year. California Civil Code § 116.231. ATTACHMENT TO CHAPTER 14 SAMPLE DOCTOR'S LETTER SUPPORTING A NEED FOR AN ACCOMMODATION Dear Business: [Your name] is my patient and has a physical disability that causes functional limitations. [Your name] has the following functional limitations: [Your doctor should list your limitations here that apply to your ability to work. Example: has limited reach or must use a wheelchair to get around.] [Your name] may be accommodated for his/her disability in the following way: [Your doctor should list the accommodations you need here. Example: by using accessible buildings and equipment which he can reach and operate.] Sincerely, Your Doctor Endnotes Note 1 - In June, 1999, the United States Supreme Court issued a series of decisions that affect this part of the definition of "qualified individual with a disability": Sutton v. United Airlines, Murphy v. United Parcel Services, and Albertson's, Inc. v. Kirkingburg. These three cases limit who is protected by the ADA. In these decisions, the Supreme Court held that the effects of any "mitigating measures" taken by the individual to reduce the impact of the disability must be considered when determining whether a person has a disability under the ADA. "Mitigating measures" are things used to control or reduce the effects of an individual's disability. Some examples of mitigating measures include the use of medication, therapy, or assistive devices (like eye glasses, hearing aids or prosthetic limbs). In Sutton, the court held that two individuals with severe vision limitations were not disabled. The court reasoned that because their vision was 20/20 or better with eye glasses, they were not substantially limited in the major life activity of seeing. In Kirkingburg, the court found a truck driver with 20/200 vision in his left eye was not disabled. The Murphy case concerned a man with high blood pressure who used medication to lower his blood pressure. The court held that once Mr. Murphy took his medication, he was no longer a person with a disability under the ADA because his major life activities were no longer restricted. In all these cases, the Supreme Court ruled that in deciding whether an individual is disabled, you should look at the person's actual circumstances, with or without the use of mitigating measures. Thus, for example, if the person is taking medication, wearing eye glasses, or has a prosthetic device, you must consider that in deciding whether he or she is a person with a disability. On the other hand, if the person was not using any mitigating measures at the time of the alleged discrimination, then whether he or she is disabled should be decided without considering the use of the mitigating measure. As a result of these decisions, many people will have a more difficult time showing a court that they meet the definition of "qualified individual with a disability" and are protected against discrimination by the ADA. The Supreme Court did not say in these cases, however, that using a mitigating measure automatically means that you are not a person with a disability. It only means that you have to look more carefully to see if the definition of disability is met. Even if you use mitigating measures, you still may be a "qualified individual with a disability." If you can show that the side effects of a medication or other mitigating measure themselves result in a substantial limitation on your major life activities, you may still be "disabled." The courts also recognize that sometimes mitigating measures do not fully control the effect of the disability. For example, even with medication, a person with a bipolar disorder may still have symptoms on occasion, resulting in periods of substantial limitation. In some situations, you may also argue that you have a disability when there are legitimate obstacles to your use of the mitigating measure. For example, although therapy may be a mitigating measure, we believe the court should not consider it in a circumstance in which a person with a mental health condition is prevented from using the mitigating measure because his or her employer refuses to provide a flexible work schedule to attend therapy as a reasonable accommodation. In addition, you could focus on other parts of the ADA definition of disability by showing that you were discriminated against because you have a record of having an impairment that substantially limits one or more major life activities, or because you are regarded as being substantially limited, even though you are not. ---------- Chapter 15 RIGHTS TO ASSISTIVE TECHNOLOGY IN HIGHER EDUCATION Table of Contents Question 1. Which laws apply to which colleges? 15-2 2. Do the laws cover professional, trade, and technical colleges? 15-3 3. Do the ADA and Section 504 cover religious colleges? 15-3 4. How can I know if I am protected by the laws? 15-3 5. What kind of actions are discriminatory under the laws? 15-5 6. I need a special device in order to participate in my educational program. Does my college have to provide it? 15-6 7. For what college programs can I request assistive technology? 15-8 8. Who decides which type of assistive technology I can get? 15-9 9. Must a college provide a telecommunications device (TDD) for the students or applicants who are deaf? 15-10 10. When does a college not have to provide assistive technology? 15-11 11. What must my college do if it finds a fundamental alteration or an undue burden? 15-12 12. Can my college charge me for the assistive technology? 15-13 13. Can I ask my college for a personal device? 15-13 14. Can my college make me ask for an accommodation before I need it? 15-13 15. Do I have to provide proof of my disability to get an accommodation? 15-13 16. What should my doctor's letter say to support my request for accommodations? 15-13 17. What can I do if my college refuses to give me the accommodations I need, or discriminates against me because of my disability? 15-14 18. How do I file an internal grievance or appeal with my college? 15-15 19. Do I have to file a grievance with my school before I can file a complaint with the DOJ or with the OCR? 15-15 20. When and how would I file a complaint with the DOJ? 15-15 21. When and how do I file a complaint with the OCR of the Department of Education? 15-16 22. What if I file my complaint with the wrong department? 15-16 23. What if I don't file my complaint with OCR on time? 15-16 24. What should my complaint to the DOJ or OCR say? 15-17 25. What happens after I file my complaint? 15-18 26. How can private mediation help me? 15-19 27. When and where can I file a lawsuit? 15-20 28. If the DOJ or OCR says I was not discriminated against, does that mean I can't go to court? 15-20 29. Are there any laws that will protect me from retaliation? 15-20 30. How can I protect myself from discrimination by my college? 15-21 Attachment 15-22 Chapter 15 RIGHTS TO ASSISTIVE TECHNOLOGY IN HIGHER EDUCATION There are four laws that prohibit discrimination based on disability by higher education institutions (such as colleges and universities). [Note1] Because of these laws, colleges must provide equal opportunities to people with disabilities in all their programs, services, and activities. They are: * Section 504 of the Rehabilitation Act (Section 504); * The Americans with Disabilities Act (ADA); * California's Unruh Civil Rights Act (Unruh Act); and * California Civil Code Section 54. The first two laws are federal, which means they apply to colleges in the entire country. The last two are California laws and only cover colleges within California. There are many similar provisions and requirements in all four laws. But, there are also important differences among them. It is critical that you know which law applies to your college. Under some situations, all four laws may apply. In that case, you need to know which law gives you the best protection. Colleges must take necessary steps to ensure that people with disabilities can access any aid, benefit, or service they make available to non-disabled people. In some cases, they may fulfill this obligation by providing assistive devices, auxiliary aids, and other technologies that can help you receive the same benefits as others. In this chapter, we will describe the laws that apply to colleges and the actions that are discriminatory. We will also explain how you should go about asking for a device you need, and what you can do if your college discriminates against you. Finally, we will outline what type of devices and accommodations your college is not required to provide. 1. Which laws apply to which colleges? Section 504 Section 504 of the Rehabilitation Act prohibits colleges that receive federal financial assistance from discriminating on the basis of disability. Virtually all colleges receive some form of federal funds. Student financial aid loan programs are one example. Section 504 has precise rules on what colleges must do. These rules are found in title 34 of the Code of Federal Regulations (C.F.R.). The ADA The ADA extends the prohibitions of discrimination based on disability to most public and private colleges, whether or not they receive federal funds. Since virtually all public colleges receive federal funds, they are covered by both the ADA and Section 504. The ADA is modeled after Section 504. Thus, the rules under these laws are very similar. In some cases, however, Section 504 is more precise and provides more remedies. In these cases, courts will read the ADA consistent with Section 504. That means if you make a complaint under the ADA, you will be entitled to the higher protection of Section 504. The ADA has five titles, like chapters in a book. Two of these titles cover colleges. Title II prohibits public agencies (state and local colleges such as public community colleges, California State Universities, and the University of California), from discriminating against people with disabilities in their programs, services, and activities. You can find references to Title II regulations under 28 C.F.R. Part 35. Title III prohibits public accommodations (private colleges and universities, and private trade colleges), from discriminating against people with disabilities in their services, facilities, privileges, advantages, or accommodations. Title III rules can be found in 28 C.F.R. Part 36. The Unruh Act and California Civil Code Section 54 The Unruh Act is a California state law. It prohibits discrimination based on disability by any business establishment, including all public and private colleges. Civil Code section 54 and its related sections is a second state law that guarantees you, as a member of the general public, full and equal access to accommodations, advantages, and facilities or public accommodations. Although neither law provides for assistive technology, any violation of the ADA is also a violation of the Unruh Act and Civil Code Section 54. This is important, since these two state laws provide remedies different from those under the ADA and Section 504. See question 27 below for more information. 2. Do the laws cover professional, trade and technical colleges? Yes, they do. To know which law covers a particular professional, trade or technical program, you should use the same criteria as in question 1. That is, it depends on whether the program is public or private, and on whether the school gets federal funds. 3. Do the ADA and Section 504 cover religious colleges? The ADA does not cover private colleges that are run by religious organizations. But if a college gets federal funds, it will be covered by Section 504. 4. How can I know if I am protected by the laws? To be protected by these laws, you must qualify for the educational program or college activity in which you want to participate. And, you must have a disability. You are "qualified" if, with or without reasonable accommodation, you meet the academic and technical standards required for admission or participation. 34 C.F.R. § 104.3(k)(3). [Note 2] Say, for example, you want to apply for law school. You take the admission test, with accommodations. If your score is below that required for non-disabled students, you might not qualify for admission. You "have a disability" if you fall into one of these categories: * You have a physical or mental impairment that substantially limits one or more of your major life activities (such as learning, working, seeing, hearing, speaking, performing manual tasks, walking, breathing or caring for yourself); or * You have a record of such an impairment (for example, you have a disease that is in remission); or * You are regarded as having such an impairment (for example, you have scarring from severe burns but you have no impairments). 42 U.S.C. § 12102(2); 28 C.F.R. § 35.104; 28 C.F.R. § 36.104 (ADA); 34 C.F.R. § 104.3 (Rehabilitation Act); Cal. Civil Code § 54. [Note 3] 5. What kind of actions are discriminatory under the laws? The purpose behind the laws described in this chapter is to ensure you have an equal opportunity to participate in and benefit from the programs, services and activities provided to other students. It is, therefore, discriminatory for colleges to take actions, or refuse to take appropriate actions, that have the purpose or effect of denying you the enjoyment of any right, privilege, advantage, or opportunity enjoyed by other students. The ADA and Section 504 have specific provisions that establish what actions are discriminatory. The following are some of the provisions of these laws that apply to colleges and universities. It is discriminatory for a college or university to: * Use eligibility criteria that screen out, or tends to screen out, qualified people with disabilities. 28 C.F.R. § 35.130(b)(8); * Deny you the right to participate in or receive any aid, benefit, or service it provides. This means that your college must provide you with aids, benefits, and services equal to those provided to others. They must be as effective in affording you equal opportunity to obtain the same result, to gain the same benefits, or to reach the same level of achievement as those provided to others. 28 C.F.R. § 35.130(b)(1); * Provide you with different and separate benefits or services than are provided to others. The law makes an exception if such action is necessary to provide you with services that are as effective as those provided to others. 28 C.F.R. § 35.130(b)((1)(iv). Your college must allow you the opportunity to participate in programs or activities that are not separate or different, even if it has permissibly separate or different programs. 28 C.F.R. § 35.130(b)(2). Moreover, the law requires your college to administer its programs in the most integrated setting appropriate to your needs. 28 C.F.R. § 35.130(b)(8)(d); * Keep up discrimination against you by providing significant assistance to an agency that discriminates on the basis of disability. 28 C.F.R. § 35.130(b)(1)(v); and * Select a site or locate a facility where it would prevent you from using that facility or its services. 28 C.F.R. § 35.130(b)(4). 6. I need a special device in order to participate in my educational program. Does my college have to provide it? To make sure its programs and activities are fully accessible to you, your college must provide you with reasonable accommodations. One form of reasonable accommodation is to provide assistive technology. That may include any device that enables you to overcome your disability so that you can participate in the program. The ADA and Section 504 do not use the term "assistive technology." Instead, they use terms such as "auxiliary aids and services for effective communication" and "modification to policies, practices, and procedures." Effective communication means that colleges must communicate with applicants and students who have disabilities as effectively as they communicate with others. 28 C.F.R. § 35.160. To do so, and to give you equal opportunity to participate in their programs, colleges must furnish auxiliary aids and services. 28 C.F.R. § 35.160(b)(1). Colleges communicate with their applicants and students in a variety of settings, including admissions, financial aid programs, classes and graduations. Communications may be written or oral. For example, in a classroom, the professor provides information both orally and by handing out written course materials. Students with disabilities have the right to receive such information in a format as effective as that provided to others. Auxiliary aids and services cover a wide range of services and devices. They can include: * Taped texts; * Interpreters; * Video displays; * Television enlargers; * Talking calculators; * Electronic readers; * Braille calculators, printers, or typewriters; * Telephone handset amplifiers; * Closed caption decoders; * Open and closed captions; * Voice synthesizers; * Specialized gym equipment; * Calculators or keyboards with large buttons; * Reaching devices for library use; * Raised-line drawing kits; * Assistive listening devices or systems; * TDDs. The listed examples are in an OCR publication, Auxiliary Aids and Services for Postsecondary Students with Disabilities: Higher Education's Obligations under Section 504 and the ADA, U.S. Department of Education, Office of Civil Rights, Washington, D.C., Revised October 1996. See also, 34 C.F.R. § 104.44(d)(2). Colleges must make reasonable modifications to their policies, practices, and procedures when they are necessary to make sure students with disabilities receive equal treatment. A college, for instance, may have to waive a ban on taping classes to allow a visually impaired student to benefit from the course. Or, a college may have to modify its policies in order to allow a disabled student to link an adaptive device to its computerized library system to do a research project. 7. For what college programs can I request assistive technology? If you are eligible for any college program, you can ask for assistive technology to use in that program. Programs, services, and activities that colleges provide which are covered by federal and state law include: * Admissions; * Academics; * Research; * Occupational training; * Housing; * Health insurance; * Counseling; * Financial aid; * Physical education; * Athletics; * Recreation; * Transportation; and * Extracurricular. 34 C.F.R. §§ 104.43(a) [Note 4], 104.42(a). Admissions: Your college must modify and administer admissions tests so that test results accurately reflect your aptitude, knowledge or achievement level, not your sensory, manual or speaking abilities, except where such skills are what the test is designed to measure. 34 C.F.R. § 104.42(b)(3); 28 C.F.R. § 36.309(a), (b). Academics: Your college must modify any academic requirements that would discriminate on the basis of disability. Modifications might include the way courses are conducted. 34 C.F.R. § 104.44(a); 28 C.F.R. §§ 36.309(c)(3), (5). For example, if your disability prevents you from meeting course attendance requirements, the college could provide the course content through videotape or cassettes. Course examinations: Your college must provide ways to evaluate your achievement in the course. 34 C.F.R. § 104.44(c); 28 C.F.R. § 309(b)(i). For example, if you have an impairment that makes writing difficult, the college may have to give you more time to complete the exam. Or the college could let you type your answers. To avoid discriminating against you if you are blind, the college could tape record the questions on a test and allow you to record, rather than write the responses. Other rules: Your college may not impose rules that have the effect of limiting your participation, such as prohibiting tape recorders or dog guides in classrooms. 34 C.F.R. § 104.44 (b). 8. Who decides which type of assistive technology I can get? The process for getting accommodations will differ from school to school. Finding the right accommodation should be an interactive process in which you and your college consider different options together. To find out what the process is at your school, contact the Disabled Student Services Program. Many colleges also have an ADA or Section 504 Coordinator. If neither resource exists at your school, you can ask the Dean of Student Affairs or your academic advisor to explain the process for requesting accommodations. If you are not sure what type of accommodations you need, the Disabled Student Services Program and your doctors (or other people familiar with your disability) may be able to help you figure that out. If you are a client of the Department of Rehabilitation, your rehabilitation counselor may also be of some help to you. Public colleges must give primary consideration to your requests. 28 C.F.R. § 35.160(b)(2). That means that the college must honor your preference unless it can show that an equally effective accommodation exists. For example, if you ask for course handouts in Braille instead of audio tapes, the college should honor your preference for Braille. Private colleges should consult with you first before deciding what you need. The ultimate decision, however, rests with the college as long as it results in effective accommodation. Colleges covered by Section 504 have flexibility to choose the method by which the aid will be supplied. For example, a college may hire a student or use an outside source to record texts for people with visual impairments. Appendix to 34 C.F.R. § 104. You should make your accommodation request in writing. In your request you should: * Identify yourself as a student with a disability; * Describe the way your disability affects your participation in school; * Set out the specific accommodations, including assistive technology, you need; and * Give a date for the college to answer your request. If you do not receive an answer by that date, you should assume that the college has denied your request, and start appeal and complaint procedures. 9. Must a college provide a telecommunication device (TTD) for students or applicants who are deaf? Colleges do not usually have to provide TDDs. But, if they provide telephones for students to make outgoing calls, they must also provide a TDD for you if you need one. 28 C.F.R. § 36.303(d)(1). For example, if a college provides telephones in student dormitories, and a student with a hearing or speech impairment asks for a TDD, the college must provide it. When a college communicates by telephone with students, it must provide TDDs (or equally effective telecommunication systems) in order to communicate with people who have impaired hearing or speech. 28 C.F.R. § 35.161. Relay services will normally satisfy this requirement. See DOJ's Title II Tech. Assist. Manual, Section II-7.2000. 10. When does a college not have to provide assistive technology? A college does not have to provide assistive technology when it would: * Fundamentally alter the nature of the program; or * Create an undue financial or administrative burden. Fundamental Alteration of a Program A fundamental alteration is such a big change that it alters the essential nature of the service or program. An example of a fundamental alteration of a program would be admitting a student into a nursing school who would attend academic but not clinical courses. In such a case, the Supreme Court held that whatever benefits the nursing school student might receive, she would not "receive even a rough equivalent of the training a nursing program normally gives." Southeastern Community College, v. Davis, 442 U.S. 397, 409-10 (1979). But, the court noted that future technological advances may allow similar applicants to benefit from the nursing program. In that case, the school's refusal to modify the program would be unreasonable and discriminatory. Undue Burden An undue financial burden means a significant difficulty or expense. 28 C.F.R. § 36.104. To find out whether providing assistive technology such as an auxiliary aid creates an undue financial burden, your college must consider all resources available for funding and operating the program. 28 C.F.R. § 35.164. There are many factors to consider. They may not all apply in each case. These factors are: * The nature and cost of the action; * The overall financial resources of the site or sites involved; * How many people work there; * The effect on expenses and resources; * Legitimate safety requirements necessary for safe operation; * Any other impact of the action on the operation of the site; * The geographic separateness and the relationship of the site to any parent organization; * If applicable, the overall financial resources, etc., of any parent organization; and * If applicable, the operation and structure of any parent organization. See DOJ's Title III Tech. Assist. Manual, III-4.3600. 11. What must my college do if it finds a fundamental alteration or an undue burden? If your college finds that providing the auxiliary aid you request would fundamentally alter the program, or create an undue burden, it must still consider whether a different auxiliary aid would not alter the program or cause an undue burden. The alternate aid must still enable you to participate in the program or receive services. You can decide whether to challenge the college's denial of your choice or accept the service it may offer. 28 C.F.R. § 35.164; 28 C.F.R. § 36.303(f). Under the ADA, only the head of a public college can decide that an action would result in a fundamental alteration or an undue burden. But, the head of the college may designate someone else to make that decision. The decision must include a written statement of the reasons for reaching the conclusion. 28 C.F.R. § 35.164; 28 C.F.R. § 36.303(f). There is no similar requirement for private colleges. 12. Can my college charge me for the assistive technology? No. The college cannot charge you for the cost of assistive technology or any other accommodation the law requires it to give to you. Appendix to 34 C.F.R. § 104; 28 C.F.R. § 35.130(f); 28 C.F.R. § 36.303(f). To reduce its costs, the college may help you get assistive technology from rehabilitation agencies or private organizations. Appendix to 34 C.F.R. § 104. 13. Can I ask my college for a personal device? No. Colleges do not have to provide individually prescribed devices or other devices of a personal nature. 34 C.F.R. § 104.44(d)(2); 28 C.F.R. § 35.135; 28 C.F.R. § 36.306. Personal devices are those items that you use regardless of your college attendance. Examples include wheelchairs, durable medical equipment, prosthetic devices, etc. 14. Can my college make me ask for an accommodation before I need it? Yes. A college can require that you ask for an accommodation a reasonable time before you need it. That gives the college time to make appropriate arrangements. See DOJ's Title III Tech. Assist. Manual, Section III-4.6100. 15. Do I have to provide proof of my disability to get an accommodation? You might. Colleges must only accommodate known disabilities. If your disability is not obvious, and the college asks for proof of your disability, you must provide it. To show that you are entitled to reasonable accommodation, you should get a letter from your doctor. 16. What should my doctor's letter say to support my request for accommodations? The more specific the letter is, the more effective it will be. The letter should include at least the following information: * Your doctor's name, credentials, and specialty, any special qualifications for helping people with your disability, and where your doctor works; * Any tests, assessments, and evaluations that your doctor performed on your behalf, and any records or other materials reviewed as part of the testing process; * Your disability-related impairments, and how they relate to your ability to learn and participate in a college program; * Your disability and your specific diagnoses. This should include how you meet diagnostic criteria, and the facts and observations upon which your doctor based the diagnosis; * A list of school accommodations that your doctor would recommend to help you compensate for your disability and how the accommodation would enable you to participate fully in your college program; and * How your doctor decided what accommodations to recommend for you including any prior experience your doctor has had working with students who have disabilities. 17. What can I do if my college refuses to give me the accommodations I need, or discriminates against me because of my disability? If your college refuses to provide you with the accommodations you need, or discriminates against you because of your disability, you can: * File an internal grievance/appeal with the college; * File a complaint with the Office for Civil Rights (OCR) of the U.S. Department of Education; * File a complaint with the U.S. Department of Justice (DOJ); * Try to resolve things informally through private mediation; or * File a lawsuit. 18. How do I file an internal grievance or appeal with my college? Every college has its own grievance and appeal procedures. If you want to file an internal grievance with your college, you should talk to the Disabled Student Services Program, the ADA or Section 504 Coordinator, or the Dean of Student Affairs. That person can tell you what the grievance/appeal process is. You should file your internal grievance as soon as possible, but no later than 180 days after the discrimination occurred. 19. Do I have to file a grievance with my college before I can file a complaint with the DOJ or with the OCR? No. You do not have to file an internal grievance with your school to be able to file a complaint with the DOJ or the OCR, but it may be helpful to do so. If you have filed an internal grievance, the investigator assigned to your case may tell you that you need to refile with the OCR within 60 days of the date the internal grievance is final. 20. When and how would I file a complaint with the DOJ? The DOJ is the federal agency that enforces Title III of the ADA. Title III is the part of the ADA that covers private colleges. If your college is covered by Title III, and you want to file a discrimination complaint, you should write to this address: United States Department of Justice Civil Rights Division Office on the Americans with Disabilities Act P.O. Box 66118 Washington DC 20035-6118 (800) 514-0301 Phone (800) 514-0383 TTY (202) 514-6193 Electronic Bulletin Board You can file complaints with the DOJ at any time, but you should file your complaint as soon as possible. Although there is no time limit for filing Title III complaints with the DOJ, there are time limits on lawsuits filed under Title III. 21. When and how do I file a complaint with the OCR of the Department of Education? OCR is part of the Federal Department of Education. OCR investigates violations of Title II of the ADA and Section 504. Title II is the part of the ADA that covers public colleges. Section 504 covers any colleges that receive federal funds. To file a complaint with OCR, you can write a letter describing your situation, or you can use the OCR complaint form. Send your OCR complaints to this address: United States Department of Education Office for Civil Rights Region IX Old Federal Building 50 United Nations Plaza, Room 239 San Francisco, CA 94102 (415) 556-2475 Phone You must file your complaint with OCR within 180 days of the date the college discriminated against you. If you have already gone through your college's internal grievance process, you must file your OCR complaint within 60 days of the college's final decision on your grievance. 22. What if I file my complaint with the wrong department? If you don't know what law covers your college, or if you file with the wrong department, your complaint will be forwarded to the proper department. 23. What if I don't file my complaint with OCR on time? If you file your OCR complaint late, OCR won't investigate unless you can get a waiver. OCR will notify you in writing that you can request a waiver. You can get a waiver of the 180-day filing requirement only under these limited circumstances: * You could not reasonably be expected to know that what happened to you was discriminatory within the 180-day period, and you filed your complaint within 60 days after you became aware that what happened to you was discriminatory; * You couldn't file a complaint on time because you were ill or otherwise incapacitated during the 180-day period, and you filed the complaint within 60 days after you recovered; * You filed a complaint alleging the same discriminatory conduct and within the 180-day period, with another federal, state, or local civil rights enforcement agency, and you filed a complaint with OCR within 60 days after the other agency completed its investigation or notified you that it would take no further action; or * You filed an internal grievance with your college within the 180-day period, alleging the same discriminatory conduct that is the subject of the OCR complaint, and you filed the complaint no later than 60 days after the internal grievance is concluded. 24. What should my complaint to the DOJ or OCR say? If you are using the OCR complaint form, all you need to do is answer all the questions on that form and mail it in. If you are filing a complaint with the DOJ, or you want to write your own complaint letter to OCR, your complaint should give at least the following information: * Your name, address, and telephone number; * The name of anyone who is helping you file the complaint; * The name and address of your college, and the names of the departments or individuals you think discriminated against you because of your disability; * The reasons why you think you were discriminated against because of your disability; * The dates when the discrimination happened; * If you have filed an internal grievance with your college, when you filed your grievance, and what happened; * If you have already filed a complaint with any other federal, state, or local civil rights agency about the same acts of discrimination, state when you filed your complaint, and what happened; and * If you have already filed a lawsuit in any federal or state court about the same acts of discrimination, state when you filed your complaint, and what happened. Be as specific as possible. You should also send copies of any letters or documents that help show how you were discriminated against. Don't send originals, you may not get them back! Finally, make sure you sign and date your complaint. Your complaint won't be accepted unless it is signed. 25. What happens after I file my complaint? What happens with your complaint depends on where your complaint is filed: OCR When you file a complaint with OCR, you have the choice of asking for Early Complaint Resolution (ECR), or going ahead with an evaluation or investigation. An ECR lets you and your college try to resolve your complaint together. If both you and the college are willing to do an ECR, OCR will work with you to resolve your complaint. OCR will help you reach an agreement but will not take sides. OCR will not monitor your ECR agreement. If your college does not do what it said it would do during ECR, you should file another complaint with OCR. If you and your college cannot resolve your concerns using ECR, or you decide not to do an ECR, OCR will do an initial evaluation of your complaint. OCR may call you for more information or documentation. If the OCR investigator assigned to your case finds support for your complaint, she/he will do an investigation. The investigator may interview witnesses and ask for more information as part of the investigation. Investigation will continue until one of the following things happens: * OCR finds that there is no discrimination and dismisses your complaint; * You withdraw your complaint; * Your complaint is resolved; or * OCR gives your school a "voluntary resolution plan." The voluntary resolution plan is a written agreement that says what your school has to do to resolve your concerns. OCR will monitor this agreement to make sure the school does what it is supposed to do to comply with the law. DOJ When you file a complaint with the DOJ, you have a choice of going to mediation or not. If you want mediation through the DOJ, you need to specifically ask for it in your complaint. For information on DOJ mediators in your area, call the Key Bridge Foundation at (800) 528-1609 (voice); (800) 514-0383 (TDD). The Key Bridge Foundation is the agency that supplies mediators for the DOJ. Any agreement reached in mediation is binding, which means you can enforce it court. If you don't go through mediation, or your school refuses mediation, the DOJ will hold on to your complaint to evaluate and investigate your discrimination claims. If the DOJ believes that the college discriminated against you, it can file a court action on your behalf. Keep in mind however, that the DOJ will not act like a private attorney and will not be able to get you money damages. 26. How can private mediation help me? Private mediation centers can help you resolve disputes informally. Some of these centers may have experience with disability-related issues and discrimination. To find out if there is a mediation center near you that has experience with disability issues, call your local Independent Living Center or check a local phone book. Private mediators should be able to help you regardless of the type of college you attend. 27. When and where can I file a lawsuit? From the moment you experience discrimination you have the right to file a lawsuit in court. You do not have to file a grievance with your college or file a complaint with the DOJ or OCR to be able to file a lawsuit. For violations of the ADA and Section 504 you can file a lawsuit in federal or state court. It is a good idea to have an attorney represent you in court, although you can represent yourself. Court actions under the ADA and Section 504 for discrimination by a school on the basis of disability must be filed within one year of the date of discrimination. If you seek money damages only, and the amount is $5,000 or less, you could file a complaint in small claims court under the Unruh Act or Civil Code Section 54. Cal. Civil Code §52.2. Both the Unruh Act and Civil Code Section 54 provide that a violation of the ADA is a violation of these statutes. Cal. Civil Code §51 and 54(c). If you win, you will be entitled to three times your actual monetary loss or $1,000, whichever is greater, not to exceed $5,000. Cal. Civil Code § 52 and 54.3(a). You could recover under the Unruh Act or Section 54, but not both statutes. Cal. Civil Code § 54.3(a). No one may file more than two small claims actions demanding more than $2,500 each anywhere in the state in any calendar year. Cal. Civ. Proc. Code § 116.231. 28. If the DOJ or OCR says the college did not discriminate against me, does that mean I can't go to court? No. You can go to court no matter what the DOJ or OCR says. 29. Are there any laws that will protect me from retaliation? Title V of the ADA prohibits private and public colleges from retaliating against you when you try to enforce your rights under the ADA. If a college retaliates against you, you can file a new complaint with OCR or the DOJ. 30. How can I protect myself from discrimination by my college? To protect yourself; * KNOW YOUR RIGHTS; * Document and keep copies of everything related to your disability and education; * Write down the names of people you speak to about accommodations for your disability; * Write down the dates and times you talked to them; * Keep copies of all the letters you send to, and receive from, your college. If your college discriminates against you, having this information will make it easier for you to prove your case and resolve your concerns. ATTACHMENT TO CHAPTER 15 SAMPLE DOCTOR'S LETTER SUPPORTING A NEED FOR AN ACCOMMODATION To Whom It May Concern: [Your name] is my patient and has a physical disability that causes functional limitations. [Your name] has the following functional limitations: [Your doctor should list your limitations here that apply to your ability to learn. Example: has a visual impairment, or learning disability.] [Your name] may be accommodated for his/her disability in the following way: [Your doctor should list the accommodations you need here. Example: by being provided information in an alternative format, or be provided with additional time for completing assignments/tests.] Sincerely, Your Doctor Endnotes Note 1 - In this chapter, we will refer to all "higher education institutions" as "colleges." The term includes junior colleges, colleges, universities, professional schools, trade or technical schools. Note 2 - Titles II and III of the ADA provide similar provisions. Title II says that a qualified person with a disability is one who meets the essential eligibility requirements to receive services or participate in programs or activities provided by a public agency with or without reasonable modifications, or auxiliary aids or services). 28 C.F.R. § 35.104.3(k)(3). Title III does not use the term "qualified individual with a disability." Instead, it simply uses the term "individual with a disability", which is defined only as a person with a disability. 28 C.F.R. § 26.104. Note 3 - In June, 1999, the United States Supreme Court issued a series of decisions that affect this part of the definition of "qualified individual with a disability": Sutton v. United Airlines, Murphy v. United Parcel Services, and Albertson's, Inc. v. Kirkingburg. These three cases limit who is protected by the ADA. In these decisions, the Supreme Court held that the effects of any "mitigating measures" taken by the individual to reduce the impact of the disability must be considered when determining whether a person has a disability under the ADA. "Mitigating measures" are things used to control or reduce the effects of an individual's disability. Some examples of mitigating measures include the use of medication, therapy, or assistive devices (like eye glasses, hearing aids or prosthetic limbs). In Sutton, the court held that two individuals with severe vision limitations were not disabled. The court reasoned that because their vision was 20/20 or better with eye glasses, they were not substantially limited in the major life activity of seeing. In Kirkingburg, the court found a truck driver with 20/200 vision in his left eye was not disabled. The Murphy case concerned a man with high blood pressure who used medication to lower his blood pressure. The court held that once Mr. Murphy took his medication, he was no longer a person with a disability under the ADA because his major life activities were no longer restricted. In all these cases, the Supreme Court ruled that in deciding whether an individual is disabled, you should look at the person's actual circumstances, with or without the use of mitigating measures. Thus, for example, if the person is taking medication, wearing eye glasses, or has a prosthetic device, you must consider that in deciding whether he or she is a person with a disability. On the other hand, if the person was not using any mitigating measures at the time of the alleged discrimination, then whether he or she is disabled should be decided without considering the use of the mitigating measure. As a result of these decisions, many people will have a more difficult time showing a court that they meet the definition of "qualified individual with a disability" and are protected against discrimination by the ADA. The Supreme Court did not say in these cases, however, that using a mitigating measure automatically means that you are not a person with a disability. It only means that you have to look more carefully to see if the definition of disability is met. Even if you use mitigating measures, you still may be a "qualified individual with a disability." If you can show that the side effects of a medication or other mitigating measure themselves result in a substantial limitation on your major life activities, you may still be "disabled." The courts also recognize that sometimes mitigating measures do not fully control the effect of the disability. For example, even with medication, a person with a bipolar disorder may still have symptoms on occasion, resulting in periods of substantial limitation. In some situations, you may also argue that you have a disability when there are legitimate obstacles to your use of the mitigating measure. For example, although therapy may be a mitigating measure, we believe the court should not consider it in a circumstance in which a person with a mental health condition is prevented from using the mitigating measure because his or her employer refuses to provide a flexible work schedule to attend therapy as a reasonable accommodation. In addition, you could focus on other parts of the ADA definition of disability by showing that you were discriminated against because you have a record of having an impairment that substantially limits one or more major life activities, or because you are regarded as being substantially limited, even though you are not. Note 4 - Titles II and III of the ADA, as well as the Unruh Act and Civil Code Section 54, have similar, but less detailed, non-discrimination provisions. 42 U.S.C. 12132; 28 C.F.R. § 35.130(a) (Title II); 42 U.S.C. 12182; 28 C.F.R. §§ 36.201(a), 309(a) (Title III); Cal. Civil Code Section 51 (Unruh Act); Cal. Civil Code Section 54 and 54.1. ---------- Chapter 16 THE PROTECTIONS OF THE LEMON LAW FOR BUYERS OF ASSISTIVE TECHNOLOGY Table of Contents Question 1. What is the Lemon Law? 16-1 2. What does the Lemon Law do? 16-1 3. Who does the Lemon Law protect? 16-1 4. What is an assistive device? 16-2 5. What is an express warranty? 16-2 6. How does the express warranty protect me if I buy an assistive device? 16-3 7. Where do I find the written warranty statement? 16-3 8. I plan to buy a new wheelchair. What should the express warranty on a wheelchair say? 16-3 9. Do I have a right to know that the wheelchair I plan to buy was returned because it was defective? 16-3 10. What is an implied warranty? 16-4 11. I intend to buy an assistive device. What are my implied warranty rights? 16-4 12. How long should express and implied warranties for assistive devices last? 16-5 13. I have sent my wheelchair back to the manufacturer for repair. Does the manufacturer have to provide me with a temporary replacement? 16-5 14. Are there any assistive devices that are not covered by implied or express warranties? 16-6 15. I intend to buy a used assistive device. How does the Lemon Law protect me? 16-6 16. The warranty that came with my assistive device says that the device is sold "as is" Does this mean that I do not have any warranty rights? 16-6 17. Can anyone force me to waive my Lemon Law rights? 16-6 18. I recently exchanged an old assistive device for a new device. The new device does not work and the seller refuses to do anything about it. Can I get my old equipment back? 16-7 19. A public agency or private health plan has bought an assistive device for me. The equipment is not appropriate for my needs. Is the equipment covered by the Lemon Law? 16-7 20. I need to send my assistive device for repair. What should I do? 16-7 21. What should the manufacturer do if the same problem keeps happening? 16-7 22. What can I do if the manufacturer of my assistive device does not have a service facility in this state? 16-8 23. How long does the manufacturer have to repair the problem? 16-8 24. What are my options if I find problems with the device at the time I receive it? 16-8 25. What are my options if I find problems with the device after I accept it? 16-9 26. What can I do if the manufacturer refuses to deliver my assistive device? 16-9 27. What are incidental and consequential damages? 16-10 28. How long do I have to sue under the Lemon Law? 16-10 29. Can I sue in small claims court? 16-10 Chapter 16 THE PROTECTIONS OF THE LEMON LAW FOR BUYERS OF ASSISTIVE TECHNOLOGY Many people have asked whether California's Lemon Law covers assistive technology devices. It does. The questions and answers in this chapter should help you understand how the Lemon Law protects Californians who buy assistive technology devices that don't work as they should. 1. What is the Lemon Law? In California, the term "Lemon Law" refers to the Song-Beverley Consumer Warranty Protection Act (Act). The Act includes laws that provide legal remedies for people who buy consumer goods. Consumer goods include assistive devices. Generally, laws that apply to consumer goods also apply to assistive devices. There are, however, some important additional protections just for people who buy assistive devices. For instance, under the Act, "consumer goods" generally refers only to new products used primarily for personal, family, and household purposes. However, assistive devices that are covered can include both new and used products. This chapter will explain the additional rights buyers of assistive devices enjoy under the Lemon Law. Cal. Civil Code § 1790 and following. 2. What does the Lemon Law do? Essentially, the Lemon Law says that any assistive device sold at retail must be usable by, and fit for, the needs of the person with a disability who will use it. If the device is defective, you have a series of rights against the seller, the distributor, and the manufacturer of the device. These protections, which are implied and express warranties, come with the retail sale of all assistive devices. Cal. Civil Code § 1790 and following. 3. Who does the Lemon Law protect? The Lemon Law protects you when you buy new and used assistive devices at retail. A "buyer" is anyone who buys or rents from a person or a company that sells, rents, distributes, or manufactures assistive devices. Cal. Civil Code §§ 1791(b), 1792.2. While the statute does not explicitly cover beneficiaries of public programs such as Medi-Cal or private health plans, we believe you can claim protection under the Act as a "buyer" if the device was purchased for you. 4. What is an assistive device? An assistive device is any piece of equipment that helps you overcome your disability. It may be a medical device (e.g., a prosthetic, wheelchair, or hospital bed), an audio or tactile device for the blind, a TDD machine, a communication device, or any other instrument that lessens the effects of your disability or replaces an impaired function. It does not, however, cover prescriptive lenses and ophthalmic goods if you are not blind. Cal. Civil Code § 1791(p). 5. What is an express warranty? The term "express warranty" has two distinct meanings. The first meaning refers to a written statement. In that statement, the seller, distributor, or manufacturer of an assistive device guarantees the utility and performance of the device, or guarantees that you will receive compensation if the device does not perform as promised. The law requires that a written express warranty be given. The written statement must contain the following language: "This assistive device is warranted to be specifically fit for the particular needs of you, the buyer. If the device is not specifically fit for your needs, it may be returned to the seller within 30 days of the actual receipt by you or completion of fitting by the seller, whichever occurs later. If you return the device, the seller will either adjust or replace the device or promptly refund the total amount paid. The warranty does not affect the protections and remedies you have under other laws." Cal. Civil Code § 1793.02(a). The second meaning refers to a legal guarantee. A device you buy must perform as well as any floor sample or model. This warranty is present even if it is not written. If you try out the display model of an assistive device before you buy it, the device you get must perform the same functions and have the same features as the one you tried out. Cal. Civil Code § 1791.2. 6. How does the express warranty protect me if I buy an assistive device? The written statement must guarantee that the device will perform the specific functions for which you intend to use it. If it does not perform those functions, you have 30 days to return the device. At that point, the seller must either adjust the device so it does perform those functions or replace it with another device that meets your needs. Otherwise, the seller must promptly refund the total amount you paid for the device. Cal. Civil Code § 1793.02(a). 7. Where do I find the written express warranty statement? The statement must appear on the first page of the warranty in at least 10-point bold type. The seller must give you the warranty when you buy the device, not when you receive it. Cal. Civil Code § 1793.02(b). 8. I plan to buy a new wheelchair. What should the express warranty on a wheelchair say? An express warranty for a wheelchair is different from the warranty for other assistive devices. It is a written statement by the manufacturer that the chair is free of defects. The manufacturer does not have to recite any specific language in this warranty. The warranty applies to all types of wheelchairs - new and used, manual and power, standard and customized. Used wheelchairs must, however, be refurbished or reconditioned. An express warranty covers a wheelchair even if you do not receive a written warranty statement when you buy it. Cal. Civil Code § 1793.025(a). 9. Do I have a right to know that the wheelchair I plan to buy was returned because it was defective? Yes. If a wheelchair is returned and then put up for sale or lease, the reasons for its return must be fully disclosed to the person who intends to buy or rent it. When sold or leased, a returned wheelchair comes with the same express and implied warranties as any other new or used wheelchair. Cal. Civil Code. § 1793.025(d). 10. What is an implied warranty? An implied warranty is a legal guarantee implied in law that the device must meet an acceptable level of performance. That is to say, regardless of any disclaimers by the seller or manufacturer, the law says the device must be fit for the purposes for which it is sold. 11. I intend to buy an assistive device. What are my implied warranty rights? You receive two implied warranties - merchantability and fitness. Merchantability is a guarantee by the seller and manufacturer that the assistive device: * Performs the functions described in the contract and on the label; * Is fit for the purposes for which it is ordinarily used; * Is adequately packaged and labeled; and * Meets the industry's standard. If your device fails to meet these requirements, that is a breach of implied warranty of merchantability. You may be able to have the device repaired or have your money reimbursed by the retail seller and the manufacturer of the device. You may also be able to recover damages that are caused by a faulty device. Fitness requires the retail seller, but not the manufacturer, to guarantee that the assistive device is specifically fit for your particular needs. This warranty is very important because it means the seller must insure that the assistive device performs the specific functions for which you intend to use it. If the device does not perform those functions, then you may have recourse - but only against the seller. The only time you can recover damages from the manufacturer for breach of an implied warranty of fitness is when the manufacturer knows about your special needs and you rely on her skills and judgment to choose a suitable device. Cal. Civil Code §§ 1792.1, 1792.2(b). 12. How long should express and implied warranties for assistive devices last? Assistive devices other than wheelchairs must come with a minimum 30-day express warranty. The 30-day period begins on the day you receive the device or on the date the seller completes fitting the device to your needs, whichever is later. How long express warranties for wheelchairs last depends on whether the wheelchair is new or used. For new wheelchairs, the express warranty must be for a minimum of one year. However, this period can be as low as 60 days for used wheelchairs. The express warranty for both new and used wheelchairs begins on the first date that the chair is actually delivered to the person who intends to use it. The seller and the manufacturer can always voluntarily offer a longer warranty period. Cal. Civil Code §§ 1793.02(a), 1793.025(a). Implied warranties last as long as express warranties. But, they cannot be for less than 60 days nor for more than a year. Therefore, if an express warranty is to last for 60 days to one year, the express and implied warranties will cover the same time period. If the express warranty is for less than 60 days, the implied warranties will have the minimum 60-day period. If the express warranty is for more than a year, the implied warranties will be for the maximum one-year period. When the express warranty does not have any stated duration, then the implied warranties are valid for one year. Cal. Civil Code § 1791.1(c). 13. I have sent my wheelchair back to the manufacturer for repair. Does the manufacturer have to provide me with a temporary replacement? Yes. If the repair of your wheelchair is going to take more than one day, the manufacturer must give you a temporary replacement if you ask for it. The manufacturer can charge you a fee for this service, but cannot charge more than the cost. In other words, the manufacturer cannot make a profit from providing you with a temporary replacement. The manufacturer can always voluntarily assume the cost of the temporary replacement. Cal. Civil Code § 1793.025(e). 14. Are there any assistive devices that are not covered by implied or express warranties? Yes. A retailer does not have to guarantee that the following devices are specifically fit for your particular needs: * Any assistive device that you buy through a catalog, except hearing aids; * Any assistive device that has a retail price of less than $15.00; * A surgical implant performed by a physician or surgeon; or * Restoration or dental prosthesis provided by a dentist. Cal. Civil Code § 1793.02(e). 15. I intend to buy a used assistive device. How does the Lemon Law protect me? When you buy or lease a used assistive device, you have the same rights as buyers of new devices. You get the same express and implied warranties, and you have the same rights against retail sellers, distributors, and manufacturers. Cal. Civil Code §§ 1793.02(g), 1795.5. One exception is used wheelchairs. See question 12. 16. The warranty that came with my assistive device says that the device is sold "as is." Does this mean that I do not have any warranty rights? No. The use of the words "as is" or "with all faults" in the contract, in the warranty, or on the label does not affect your express or implied warranty rights. Such terms can affect your rights when you buy other consumer goods, however. Cal. Civil Code §§ 1792.3, 1793.02(f). 17. Can anyone force me to waive my Lemon Law rights? No. The law guarantees your express and implied warranty rights. No one can make you waive those rights. If you sign a waiver, under any circumstances, the waiver is legally void and unenforceable. Cal. Civil Code § 1790.1. 18. I recently exchanged an old assistive device for a new device. The new device does not work and the seller refuses to do anything about it. Can I get my old equipment back? Yes. If the seller does not adjust or replace the device, he must promptly refund any money you paid and return your old equipment to you. In addition, he must promptly cancel the contract you signed and return any security you gave for the new device. The seller cannot charge you any fees for purchasing, fitting, financing, or returning the device. Cal. Civil Code § 1793.02(c). 19. A public agency or private health plan has bought an assistive device for me. The equipment is not appropriate for my needs. Is the equipment covered by the Lemon Law? Yes. When the seller knows that any other individual, organization, or agency is buying the device for you, she must guarantee that the device is specifically fit for you, the ultimate user of the device. Cal. Civil Code § 1793.02(d). 20. I need to send my assistive device for repair. What should I do? Generally, it is your responsibility to return the device to the manufacturer or the service facility for repair. However, it becomes the manufacturer's responsibility if, because of the weight, size, assembly difficulties, or the nature of the problem, you cannot return it. In this situation, you must give the manufacturer written notice of the problem and the reason you cannot return it. The manufacturer can, of course, repair the device at your home, pick it up, or arrange to transport it to a service facility. If the manufacturer decides to transport the device, the manufacturer must assume the transportation cost. The same rule applies to the seller if the manufacturer does not have a service facility in this state. Cal. Civil Code § 1793.2(c). 21. What should the manufacturer do if the same problem keeps happening? If, after a reasonable number of repairs, your assistive device still has the same problem, the manufacturer must either replace it or refund your money. The manufacturer can charge you for use of the device before it had any problems. Cal. Civil Code §§ 1793.02(c), 1793.2(d). If the assistive device is a wheelchair, a "reasonable number of repairs" means that, during the warranty period, the wheelchair has been repaired four times for the same problem (and it still has the problem). Or it means that the wheelchair has been out of service for a total of 30 days because of the need for repair. Cal. Civil Code § 1793.025(c). For other devices, "reasonable number" is not defined. You need to decide when to ask for a new device or a refund. 22. What can I do if the manufacturer of my assistive device does not have a service facility in this state? You can return the device to the retail store where you bought it or to another retailer who sells this type of device. The seller can repair the device, direct you to a place that repairs such devices, replace the device, or refund your money. If it is economical, you can have the device repaired by an independent service facility. If you have it repaired, the manufacturer must reimburse you for the actual and reasonable cost of the repair, including transportation. Cal. Civil Code § 1793.3. 23. How long does the manufacturer have to repair the problem? The manufacturer has 30 days to correct the problem. This time period can only be extended for reasons beyond the manufacturer's control. Cal. Civil Code § 1793.2(b). 24. What are my options if I find problems with the device at the time I receive it? You have two options. You can either: * Require that the seller or the manufacturer correct the problem; or * Reject the device. If you reject the device, you have the right to buy a substitute device and recover from the original seller or manufacturer any payment you have already made, the reasonable expenses of buying the substitute device, as well as other damages you might have suffered, such as lost wages. If the device stays in your possession or control, you retain a security interest in it for payments you have already made, and for reasonable expenses for inspection, receipt, transportation, and care of the rejected device. You may even sell the device to recover these damages. 25. What are my options if I find problems with the device after I accept it? During the warranty period, the seller or the manufacturer must repair the device if you request it. Or you can recover four types of damages: * Any loss you have suffered resulting from the problem in the ordinary course of events; * The difference between the value of the device you received and the value of the warranted device; * Any foreseeable damages you have suffered resulting from the problem; and * Any other damages that result from the failure of the device. 26. What can I do if the manufacturer refuses to deliver my assistive device? You can either: * Get a court order forcing the manufacturer to turn over the device to you, or * Buy a substitute device within a reasonable time. If you choose the second option, you can recover from the first manufacturer any payment you have already made and any reasonable expense you incur to obtain the substitute device. You also have the right to any other damages you suffer because of the failure to deliver the device. 27. What are incidental and consequential damages? Incidental damages include: * Expenses you incur for the inspection, receipt, transportation, care, and custody of the defective device you intend to reject; * Charges and commissions you pay to find a substitute after you send back the defective device or when the seller fails to deliver the device to you; and * Any reasonable expenses you incur due to delay in the delivery or return of the device. Consequential damages are injuries you suffer to yourself and to your property as the result of a breach of warranty. They include loss of wages, medical expenses, and cost of replacement and repair for other damaged goods. 28. How long do I have to sue under the Lemon Law? You have four years to bring a Lemon Law action to recover the damages you have suffered. The four-year period begins on the date you discover the problem with the device in violation of the express and implied warranties -- not the date you bought the device. [Note 1] 29. Can I sue in small claims court? Yes. You can bring an action in small claims court to recover your Lemon Law damages. You cannot, however, sue for more than $5,000 per calendar year. And you cannot bring more than two cases for more than $2,500 each in any one calendar year. Endnote Note 1 - Krieger v. Nick Alexander Imports, Inc. 234 Cal.App.3d 205, 285 Cal.Rptr. 717 (Cal.App. 1991). ---------- Chapter 17 RESOURCE GUIDE This Resource Guide is largely the work of the California Governor's Committee for Employment of Disabled Persons, Medical and Rehabilitation Subcommittee. The Committee's permission to republish is greatly appreciated. Resource Guide Table of Contents Introduction 17-1 Assistive Technology Service Provider List 17-3 Independent Living Centers 17-12 Regional Centers 17-17 High-Tech Centers for the Disabled 17-20 Specialized Services 17-24 Vehicle Modifications 17-26 Special Services for Persons with Hearing Impairments 17-28 Sources of Procurement Assistive Listening Systems 17-30 Professional and Interdisciplinary Resources 17-31 Organizations 17-32 Advocacy Resource Guide 17-34 Health Insurance Counseling and Advocacy Program "HICAP" 17-36 Publications 17-40 Chapter 17 Resource Guide Introduction This Assistive Technology Resource Guide is presented to make information available to persons with disabilities, health professionals, employers and other interested individuals to help identify and locate assistive technological equipment and devices. These devices and equipment can enable persons with disabilities to more effectively work, learn and access community services and resources. The inclusion of any organization or product in the guide does not indicate or imply official endorsement of approval of such organization or product by the California Assistive Technology System or the State of California. In considering the application of assistive technology, there are three important principles which must be stressed: The importance of a thorough evaluation, the team approach and consumer involvement. Evaluation: In most cases an evaluation of the device or equipment should be carried out by professionals in the field related to the technology involved. For example, there are many types of aids for persons with visual impairments, including special glasses, closed-circuit TV cameras which enlarge print, and "talking" computer terminals. They all have certain advantages and drawbacks and should be appropriately evaluated for each user to make sure they match his/her needs. In some cases, the selection of inappropriate equipment can even aggravate the user's impairment. The Team approach: Ideally, the evaluation should be carried out by a team of professionals with the active involvement of the consumer. Depending on the technology involved, the evaluation team can be composed of individuals from various disciplines, such as an occupational therapist, physical therapist, physician, rehabilitation counselor, equipment vendor, computer expert, and others. The key to any team's success is the active involvement of the consumer. Consumer Involvement: It is the consumer who will have to adapt to and live with the technology (i.e., device, equipment, computer software) after a determination is made by the evaluation team. Therefore, it is crucial that he/she play as active a role as is possible. The consumer must, as much as possible, let the evaluation team know what the purpose of technology is (e.g., independent living, working or transportation). During the evaluation, the consumer must advise the team of any problem or discomfort in using the recommended technology. The consumer must also ensure the device or equipment is adequately maintained after obtaining it. The important component of any assistive-technology system is the user. Assistive Technology Service Provider List The following programs can provide assessment and recommendations of assistive devices. They are listed geographically. (Once again, we emphasize the importance of individuals obtaining a thorough evaluation.) Northern California and Central Valley Name: Sacramento Center for Assistive Technology Address: 650 Howe Avenue, Suite 300 Sacramento, CA 95825 Phone: (916) 927-7228 Name: Mercy Outpatient Rehabilitation Center Address: 2288 Auburn Blvd, Suite 101 Sacramento, CA 95821 Phone: (916) 486-2145 Contact: Kathleen Ernst Services: Driving evaluations, seating and wheeled mobility evaluations, home and worksite evaluations, work capacity and physical capacity evaluation. Therapeutic swimming pool. Name: Department of Rehabilitation Address: Offices throughout the State. Check phone book for listing. Phone: (800) 952-5544 Services: Worksite and home evaluations, assessments, and referral. Name: Easter Seals Society of Superior California Address: 3205 Hurley Way Sacramento, CA 95864 Phone: (800) 409-2395 (916) 485-6711 Contact: Joan Dermody/P. A. Kramer Services: Vocational assessment, Functional Capacity Evaluations, Worksite and home evaluations and assessment for persons with traumatic brain injuries and other physical disabilities, body mechanics and Activities of Daily Living training, and device procurement, modification, and training. Name: United Cerebral Palsy of Greater Sacramento Address: 191 Lathrop Way, Suite N Sacramento, CA 95815 Phone: (916) 565-7700 Services: Independent living skills Name: United Cerebral Palsy of the North Bay Address: P.O. Box 7788 Santa Rosa, CA 95407-0788 Phone: (707) 566-8647 Contact: Jim Yukich Services: Referrals, and social/entertainment. Name: United Cerebral Palsy of San Joaquin, Calaveras & Amador Counties Address: 333 West Benjamin Holt Drive, Suite 1 Stockton, CA 95207 Phone: (209) 956-0290 Contact: Mendel Uychutin Services: Assistive Technology, and therapy services. Seating, positioning and mobility assessment. Alternative and augmentative communication, environmental access and control, work-site/educational access assessments, Occupational, speech and language therapy, follow along services. Name: United Cerebral Palsy of Stanislaus County, Inc. Address: 950 10th Street, #8 Modesto, CA 95354 Phone: (209) 577-2122 Contact: Joan Bialer Services: Daily living skills, assistive technology (i.e. computers). Name: United Cerebral Palsy of Central California Address: 4224 North Cedar Avenue Fresno, CA 93726-3700 Phone: (559) 221-8272 Contact: Kelly Cunningham Services: Assistive Technology (i.e. computers), AAC evaluations, & standing frame. Name: Clark Consulting Address: P.O. Box 1972 Chico, CA 95927-1972 Phone: (530) 894-6706 Contact: Susan Clark Services: Assistive technology; augmentative communication evaluations, set-up and training. Bay Area Name: Adaptive Driving Aid Address: 3155 Willamsburg Drive San Jose, CA 95117 Phone: (408) 866-7237 Contact: Sam Graf Service: Install adaptive driving equipment in cars and vans. Evaluate and instruct disabled drivers. Name: Adaptive Engineering Services Sonoma Developmental Center Address: P.O. Box 1493 Eldridge, CA 95431 Phone: (707) 938-6445 Contact: Emmett Band Services: Design, fabrication, modification, and evaluation for seating and mobility systems and adaptive equipment. Name: Assistive Technology Resource Services (ATRS) Address: Sonoma Development Center P.O. Box 1493 Eldridge, CA 95431 Phone: (707) 938-6452 Contact: Ray Veal Services: Provide computer access, environmental control, and augmentative communication devices evaluation for inpatient and referral clients. Name: Augmentative Communication News Address: 1 Surf Way, #215 Monterey, CA 93940 Phone: (408) 649-3050 Contact: Sarah Blackstone Services: Augmentative communication assessment and training. Consultation to families, schools, hospitals, regional centers, agencies, etc., re: Individual aspects of the delivery of augmentative communication services. Publish an international publication six times per year that highlights topics related to augmentative communications. Name: Davies Medical Center California Pacific Medical Center Campus Address: Castro & Duboce Streets San Francisco, CA 94114 (415) 923-3667 Contact: Tina Kuwada Services: Vocational evaluations, functional capacity evaluations, work hardening, upper extremity and hand evaluations, industrial rehabilitation, seating and mobility evaluations, and driving evaluations. Name: Center for Accessible Technology Address: 2547 Eighth Street, 12-A Berkeley, CA 94710 Phone: (510) 841-3224 Services: Assistive technology resources including hands-on training, consulting, evaluations and workshops in the areas of education, work and independent living. Name: The Hearing Society for the Bay Area Address: 870 Market Street, Suite 330 San Francisco, CA 94102-3008 Phone: (415) 693-5870 (Voice) (415) 834-1105 (TDD) Contact: Helen Louie Services: Evaluation and assessment of hearing aids. Display and demonstration of all types of assistive devices for persons with hearing loss (alerting, signaling, informing, etc.) Name: John Muir Therapy Center Address: 1981 North Broadway, Suite 180 Walnut Creek, CA 94596 Phone: (925) 947-5300 Contact: Beth Dana Services: Driving evaluations for autos only, no vans. Work hardening, physical capacity evaluations, upper extremity and hand evaluation and therapy. Name: Santa Clara Valley Medical Center Address: 751 South Bascom AvenueSan Jose, CA 95128 Phone: (408) 299-6034 Contact: Susan Lillie Services: Adaptive Driving Evaluation Program. Car and van driving evaluations, vocational evaluations, hand clinic, seating and wheeled mobility evaluations. Name: Sensory Aids Foundation New Name: Sensory Access Foundation Address: 1142 West Evelyn Avenue Sunnyvale, CA 94086 Phone: (408)-245-7330 Contact: Diana Drews Services: Onsite job evaluations to determine appropriate access technology for blind, visually impaired, deaf, and hearing impaired persons. Provides loan equipment to use on the job until they get their own equipment. Name: Silicon Valley Independent Living Center Address: 1601 Civic Center Drive, Suite 100 Santa Clara, CA 95050 Phone: (408) 985-1243 Contact: Sherri Burns, O.T.R. Services: Home and work site assessments; wheelchair evaluations; Activities of Daily Living, device procurement, and computer training. Name: Smith-Kettlewell Eye Research Institute Address: 2232 Webster Street San Francisco, CA 94115 Phone: (415) 561-1677 Contact: William Gerry Services: Design and modification of sensory aids for blind & visually impaired persons. Custom computer interface modification. Consultation on job site modification. Name: Stanford University Childrens Hospital Rehabilitation Engineering Center Address: 725 Welch Road (Hospital) 1010 Corporation Way (Engineering Center) Palo Alto, CA 94304 Phone: (650) 237-9200 Contact: Services: Evaluation, design, fitting, and modification in the following areas: orthotics, prosthetics, communication and control systems, seating systems, mobility systems, protective devices, and workstations. Name: United Cerebral Palsy of Santa Clara & San Mateo Counties Address: 480 San Antonio Road, Suite 215 Mountain View, CA 94040-1218 Phone: (650) 917-6900 Contact: Patricia Serra Services: Counseling, referral. High Tech Futures Program, sophomore in high school to sophomore in college business awareness and mentoring. Name: United Cerebral Palsy--Pathways Address: 1970 Broadway, Suite 305 Oakland, CA 94612 Phone: (510) 832-7430 Contact: Genny Axten Services: Peer/Mentor program using technology to gain employment and independent living. Southern California Los Angeles Name: Braille Institute Address: 741 North Vermont Avenue Los Angeles, CA 90029 Phone: (213) 663-1111 Contact: Heidi Gilston Services: Library, education, and career service for persons who are blind or visually impaired. Offers demonstrations and evaluation in the use of computer access and other electronic devices for blind and visually impaired persons. Provides financial subsidy for purchase of job-related devices. Name: Center for Applied Rehabilitation Technology (CART) Address: Los Amigos Research & Education Institute, Inc. 7601 E. Imperial Highway, HB 223 Downey, CA 90242 Phone: (562) 401-7464 Contact: Kathy Gross, Carlene McBride or Molly Doyle Services: Custom equipment modification, setup, and training. Seating, positioning and mobility; augmentative and alternative communication; environmental control; ergonomics for home, school and work; computer access and use. Name: California State University, Northridge - Computer Access Lab/Center on Disabilities Address: 18111 Nordoff Street Northridge, CA 91330 Phone: (818) 677-1200 ext.2684 Contact: Gail Pickering--Assistive Technology Specialist Services: Assessment of CSUN students on an individual basis. Specialized hardware, peripherals, and software are offered. Full service disabled student program including: Tutoring, readers, writers, proctoring exams, disability management counseling, parking, priority registration, assessment. Name: Casa Colina Hospital Address: 255 East Bonita Avenue Pomona, CA 91767 Phone: (909)596-7733 Contact: Out-Patient Admissions Services: Physical Rehabilitation. Driving evaluations for cars and vans. Driver training. Home and work site evaluations. Hand therapy. Name: Center for the Partially Sighted Address: 12301 Wilshire Boulevard, Suite 600 Santa Monica, CA 90025 Phone: (310) 458-3501 Services: Low vision, mobility, and daily living skills evaluations. Counseling and support groups. Name: Computer Access Center Address: 6234 West 87th Street Culver City, CA 90045 Phone: (310) 338-1597 Contact: Francia Bailey, Mary Ann Glicksman, Eric Lawson Services: Consult with parents, consumers, and professionals; software opportunities for hands-on experiences; workshops on various aspects of computer technology for people with disabilities. Name: Daniel Freeman Memorial Hospital Address: 333 North Prairie Avenue Inglewood, CA 90301 Phone: (310) 674-7050 ext. 3324 Services: Driving evaluations for autos only, communication disorder evaluation, seating, and wheelchair evaluations. Work re-entry services. Technology evaluation and equipment recommendation. Name: Department of Rehabilitation Mobility Evaluation Program Address: 7601 East Imperial Highway, Building 305 Downey, CA 90242 Phone: (562) 803-6691 Services: Passenger and driver evaluation including all available vans. Wheelchair evaluations. Worksite and home evaluations, assessment, and referral. Name: House Ear Institute/Center for Deaf Children Address: 2100 West Third Street Los Angeles, CA 90057 Phone: (213) 483-9930 ext. 7005 voice/TDD (213) 483-4431 Clinic, Institute Services: Hearing evaluations for profoundly deaf children. Name: La Palma Intercommunity Hospital Address: 7882 Walker Street, Suite 101 La Palma, CA 90623-1764 Phone: (714) 670-6235 Contact: Therese Molly-Martinez Services: Driving evaluations for autos only, no vans. Name: Nonverbal Assessment/Augmentative Communications Program Address: Widne High School Reseda, CA 93135 Phone: (323) 732-1976 or (323) 731-8633 Contact: Sherry Purcell, Ph.D. Services: Augmentative communication assessment and intervention for children (birth-22). Name: Northridge Hospital Medical Center Address: 18300 Roscoe Boulevard Northridge, CA 91328 Phone: (818) 885-5333 Contact: Susan Shamban Services: Driving evaluations for autos only, no vans. Name: SACC Assistive Technology Center Address: Simi Valley Hospital, North Campus P.O. Box 1325 Simi Valley, CA 93062 Phone: (805) 582-1881 Contact: Debi Schultze Service: Consultation with parents, consumers, professionals. Provide software opportunities for hands-on experiences; workshops on various aspects of computer technology for people with disabilities. Name: Team of Advocates for Special Kids (TASK) Address: 100 West Cerritos Avenue Anaheim, CA 92805 Phone: (714) 533-8275 Contact: Joan Tellefsen Services: Consultation with parents, consumers, professionals; software opportunities for hands-on experiences; workshops on various aspects of computer technology for people with disabilities. Open computer lab. Member of the Alliance of Technology Access. Provide advocacy, referral, and counseling regarding the rights of disabled youth. Name: Ventura Assessment Center New Name: Goodwill Industries of Southern California, Ventura/ Santa Barbara Counties Address: 3130 Paseo Mercado Oxnard, CA 93030 Contacts: Dan Muchahy, Janice Johnson, and Vicky Shallenberger Services: Computer, Clerical, and Work services training. Accredited Secondary School. Work experience. Name: West Orange County Consortium for Special Education (WOCCSE) Address: 10251 Yorktown Avenue Huntington Beach, CA 92646 Phone: (714) 964-3339 Services: Provides assessment and training to children (0-22) within the county and consultation to parents and professionals. Name: United Cerebral Palsy of the Inland Empire Address: 71321 Highway 111, Suite 4 Rancho Mirage, CA 92270 Phone: (760) 340-2282 Contact: Jan Warner Services: Respite program, after-school programs, referral. Name: United Cerebral Palsy of San Luis Obispo Address: 1160 Marsh Street, Suite 102 San Luis Obispo, CA 93401 Phone: (805) 543-2039 Contact: Mark Shafer Services: In-home respite care, counseling/peer groups, transportation, in-hospital counseling children and parents. Name: United Cerebral Palsy of Orange County Address: West Harvard Street Santa Ana, CA 92704 Phone: (714) 557-1291 Contact: Joanne Miner, Ph.D. Services: Adult and child day care program. Name: United Cerebral Palsy of Santa Barbara County Address: 423 West Victoria Street Santa Barbara, CA 93101 Phone: (805) 966-1112 Name: United Cerebral Palsy of Los Angeles and Ventura County Address: 7630 Gloria Avenue Van Nuys, CA 91406 Phone: (818) 782-2211 Contact: Ronald Cohen, Ph.D. Services: Occupational Therapist, evaluation for wheelchair needs, and residential day program. San Diego Name: Assistive Device Assessment Program Address: Interdisciplinary Center, Health & Human Services San Diego State University San Diego, CA 92182 Phone: (619) 594-6121 Contact: Elisabeth Allen Services: Provides assessment and evaluation in communication/control/ computer/application/ seating/wheeled mobility. Name: Community Service Center for the Disabled/Spoke Shop Address: 1295 University Avenue San Diego, CA 92103-3333 Phone: (619) 296-8012 Contact: Brian Reeder Service: Seating and wheeled mobility assessment and evaluation. Name: Sharp Hospital Rehabilitation Engineering Services Address: 3449 Balboa Ave., Suite 101 San Diego, CA 92123 Phone: (619) 541-3070 Contact: Ken Kozole Service: Wheelchair orthotic seating systems evaluation and fitting. Manual and electric powered wheelchair evaluation and fitting. Control evaluation and setup for a variety of devices including wheelchairs, communication aids, environmental controls, and computer interfaces. Worksite and tool evaluations and modifications. Name: Sharp Rehabilitation Center Address: 2999 Health Center Drive San Diego, CA 92123 Phone: (619) 541-3328 Contact: Tom Antkow Services: Driving evaluations and training, including vans. Name: United Cebral Palsy of San Diego Address: 1390 East Grand Avenue Escondido, CA 92027 Phone: (760) 743-1050 Contact: Mary Krieger Services: Provide information referral for adaptive technology regarding communication and computer equipment. Name: United Cerebral Palsy of San Diego Address: 3821 Calle Fortunda, Suite C San Diego, CA 92123 Contact: Carmen Taylor Phone: (619) 571-7803 Services: Augmentative communication lab and assessments. Sheltered workshop, recreation and water sports, information and referrals, supportive employment, motor, vocational and adult living programs, toys and computer software lending library up to 5 years old. Independent Living Centers Independent Living Centers (ILCs) are private, nonprofit organizations that receive State funding. They are consumer controlled and provide a wide range of services to assist individuals with disabilities to live independently in their chosen communities. Client Profile It is projected that ILCs will directly serve over 22,000 Californians with disabilities this year. Clients have a wide range of disabilities including physical, sensory, and developmental disabilities. Services Profile Categories of services provided by the 29 Independent Living Centers include: Attendant Referral and Training: The services may include referral of an individual to an attendant or referral of an attendant to a client in need of such services. Many centers will also train individuals interested in being employed as attendants. Counseling: Benefits counseling, financial management counseling, and peer counseling services are available through the centers. Housing Assistance: Many centers perform HUD Section 8 (low income housing) certification, moving assistance, and referral to accessible housing and modification programs. Transportation: Some centers provide transportation services directly, while others arrange transportation for clients by using community resources. Employment: A range of employment services are available through the centers, including employment preparation, job-seeking skills, and job placement. Advocacy: Centers conduct both general and personal advocacy activities, including development of new referral sources for clients, legal advocacy on behalf of an individual, community education and organizing in behalf of groups of persons with disabilities. Special Services for People with Hearing and Vision Impairments: Centers provide special services to persons who are deaf or blind, such as interpreter services, reader services, brailling, mobility instruction, etc. Information & Referral: Centers provide information and referral services to both individuals and other agencies. THE ACCESS CENTER OF SAN DIEGO 1295 University Avenue, Suite 10 San Diego, CA 92103-3333 San Diego County (619) 293-3500 ADULT INDEPENDENCE DEVELOPMENT CENTER OF SANTA CLARA CO., INC. 1601 Civic Center Drive, Suite 100 Santa Clara, CA 95050 Santa Clara County (408) 985-1243 Cheryl Cairns, Executive Director CALIFORNIA FOUNDATION FOR INDEPENDENCE LIVING CENTERS 660 J Street, Suite 270 Sacramento, CA 95814 (916) 325-1690 Patricia Yeager, Executive Director CENTER FOR INDEPENDENCE OF THE DISABLED, INC. 875 O'Neill Avenue Belmont, CA 94002 San Mateo County (415) 595-0783 Kent Mickelson, Executive Director CENTER FOR INDEPENDENT LIVING 2539 Telegraph Avenue Berkeley, CA 94704 Alameda County (510) 841-4776 Larry Watson, Executive Director CENTER FOR INDEPENDENT LIVING 3475 West Shaw, Suite 101 Fresno, CA 93711 Fresno County (559) 276-6777 Janet Carmichael, Executive Director CENTRAL COAST CENTER FOR INDEPENDENT LIVING 234 Capitol Street, Suite B Salinas, CA 93901 (831) 757-2968 Elsa Quezada, Executive Director COMMUNITY ACCESS CENTER 4960 Arlington Avenue, Suite C Riverside, CA 92504-3812 (909) 637-6900 Lucille Walls, Executive Director COMMUNITY REHAB SERVICES 4716 Caesar Chavez Avenue Building B, Room 75 Los Angeles, CA 90022 Los Angeles County (213) 266-0453 Al Rivera, Executive Director COMMUNITY RESOURCE FOR INDEPENDENCE 2999 Cleveland Avenue, Suite B Santa Rosa, CA 95403 (707) 528-2745 (Voice) (707) 528-2151 (TDD) Michael Humphrey, Executive Director COMMUNITY RESOURCES FOR INDEPENDENT LIVING, INC. 439 "A" Street Hayward, CA 94541 Alameda County (510) 881-5743 Ms. Carol Bradley, Executive Director DAYLE MCINTOSH CENTER FOR THE DISABLED 150 West Cerritos, Building 4 Anaheim, CA 92805 Orange County (714) 772-8285 Voice (714) 772-8366 TDD DISABILITY RESOURCES AGENCY FOR INDEPENDENT LIVING 221 Mc Henry Modesto, CA 95354 Stanislaus County (209) 521-7260 Voice/TDD Dwight Bateman, Executive Director DISABLED RESOURCE CENTER, INC 2750 East Spring Street, #100 Long Beach, CA 90806 Los Angeles County (562) 427-1000 Jeanette Nishikawa, Executive Director F.R.E.E.D. 154 Hughes Road, Suite 1 Grass Valley, CA 95945 Nevada County (530) 272-1732 Tony Sauer, Executive Director HUMBOLDT ACCESS PROJECT 812 6th Street Eureka, CA 95501 Humboldt County (707) 445-8404 Janet Arnot, Executive Director INDEPENDENT LIVING CENTER OF KERN COUNTY 1631 - 30th Street Bakersfield, CA 93301 Kern County (805) 325-1063 David Bolin, Executive Director INDEPENDENT LIVING CENTER OF SOUTHERN CALIFORNIA 14402 Haynes Street, Suite 103 Van Nuys, CA 91401 Los Angeles County (818) 785-6934 Norma Vescovo, Executive Director INDEPENDENT LIVING RESOURCE CENTER 423 West Victoria Santa Barbara, CA 93101 Santa Barbara County (805) 963-0595 Josephine Black, Executive Director INDEPENDENT LIVING RESOURCE OF CONTRA COSTA COUNTY 3200 Clayton Road Concord, CA 94519 (925) 363-7293 Joanne Best, Executive Director INDEPENDENT LIVING RESOURCE CENTER, SAN FRANCISCO 649 Mission Street, 3d Floor San Francisco, CA 94105 San Francisco County (415) 543-6222 Katherine Uri, Executive Director INDEPENDENT LIVING SERVICES OF NORTHERN CALIFORNIA 555 Rio Linda Avenue, Suite B Chico, CA 95926 Butte County (530) 893-8527 Rocky Burks, Executive Director MARIN CENTER FOR INDEPENDENT LIVING 710 Fourth Street San Rafael, CA 94901 Marin County (415) 459-MCIL (6245) Ext. 320 Robert L. Roberts PLACER INDEPENDENT RESOURCE SERVICES, INC. 11768 Atwood Road, Suite 29 Auburn, CA 95603 Placer County (530) 885-6100 Tink Miller, Executive Director RESOURCES FOR INDEPENDENT LIVING 1211 H Street, Suite B Sacramento, CA 95814 Sacramento County (916) 446-3074 Frances Gracechild, Executive Director ROLLING START, INC. 570 West 4th Street, Suite 103 San Bernardino, CA 92401 San Bernardino County (909) 884-2129 Don Vigil, Executive Director SAN BENITO HOME HEALTH CENTER 967 San Benito Street Hollister, CA 95023 (831) 638-1271 SERVICE CENTER FOR INDEPENDENT LIVING 109 South Spring Street Claremont, CA 91711 Los Angeles County (909) 621-6722 Carol Lane, Executive Director SOUTHERN CALIFORNIA REHABILITATION SERVICES 12458 Rives Avenue, Room 202 Downey, CA 90242 Los Angeles County (562) 862-6531 Enid Awad, Executive Director WESTSIDE CENTER FOR INDEPENDENT LIVING 12901 Venice Boulevard Los Angeles, CA 90066 Los Angeles County (310) 390-3611 Voice (310) 398-9204 TTY Regional Centers Regional centers provide services to people of all ages who have developmental disabilities. The regional center serves adults, children, infants, toddlers, and anyone at risk of giving birth to a child with a developmental disability. The following is a listing of Regional Centers throughout California: ALTA CALIFORNIA REGIONAL CENTER 2031 Howe Avenue, Suite 100 Sacramento, CA 95825-0196 (916) 614-0400 (916) 924-0645 TTY Colusa, Placer, El Dorado, Alpine, Sierra, Nevada, Sacramento, Yuba, Yolo and Sutter Counties CENTRAL VALLEY REGIONAL CENTER 5168 North Blythe Avenue Fresno, CA 93722 (209) 276-4300 Merced, Mariposa, Madera, Fresno, Kings, and Tulare Counties EASTERN LOS ANGELES REGIONAL CENTER 1000 South Freemont Avenue P.O. Box 7916 Alhambra, CA 91802-7916 (626) 281-1884 East Los Angeles, Northeast Los Angeles, Whittier District, Alhambra District FAR NORTHERN REGIONAL CENTER 1900 Chum Creek Road, #319 Redding, CA 96002 (530) 222-4791 Butte, Glenn, Shasta, Siskiyou, Tehema, Modoc, Plumas, Lassen, and Trinity Counties GOLDEN GATE REGIONAL CENTER 120 Howard Street, Third floor San Francisco, CA 94105 (415) 546-9222 Voice & TTY San Mateo, Marin, and San Francisco Counties HARBOR REGIONAL CENTER 21231 Hawthorne Blvd. Torrance, CA 90503 (310) 540-1711 Voice & TTY Bellflower, Harbor, Long Beach and Torrance Health Districts INLAND COUNTIES REGIONAL CENTER, EAST (Ontario) 674 Brier Drive P.O. Box 6217 San Bernardino, CA 92412-6217 (909) 890-3000 Riverside, and San Bernardino Counties KERN REGIONAL CENTER 3200 North Sillect Avenue Bakersfield, CA 93308 (805) 327-8531 (805) 327-1251 TTY Kern, Inyo and Mono Counties LANTERMAN REGIONAL CENTER (Los Angeles) 3440 Wilshire Blvd., Suite 400 Los Angeles, CA 90010-2197 (213) 383-1300 (213) 380-8625 TTY Pasadena, Hollywood, Wilshire, Central Los Angeles, Glendale/Foothill NORTH BAY REGIONAL CENTER, (Napa) 10 Executive Court, Suite A P.O. Box 3360 Napa, CA 94558 (707) 256-1100 Napa, Sonoma, and Solano Counties NORTH LOS ANGELES COUNTY REGIONAL CENTER 15400 Sherman Way, Suite 300 Van Nuys, CA 91406 (818) 778-1900 San Fernando, Antelope, Santa Clarita, Conejo REDWOOD COAST REGIONAL CENTER (Eureka) 808 E Street Eureka, CA 95501 (707) 445-0893 Humboldt, Del Norte, Mendocino, and Lake Counties REDWOOD COAST REGIONAL CENTER (Ukiah) Field Office 1116 Airport Park Blvd. Ukiah, CA 95482 (707) 462-3832 REDWOOD COAST REGIONAL CENTER (Lakeport) Field Office 125 Park Street Lakeport, CA 95453 (707) 262-0470 REGIONAL CENTER OF THE EAST BAY (Oakland) 7677 Oakport Street, Suite 1200 Oakland, CA 94621 (510) 383-1200 Alameda and Contra Costa Counties REGIONAL CENTER OF ORANGE COUNTY (Orange) 801 Civic Center Drive West P.O. Box 22010 Santa Anna, CA 92702 (714) 796-5222 Orange County SAN ANDREAS REGIONAL CENTER (San Jose) 300 Orchard City Drive, Suite 170 Campbell, CA 95008 (408) 374-9960 San Benito, Monterey, Santa Clara, and Santa Cruz Counties SAN DIEGO REGIONAL CENTER 4355 Ruffin Road San Diego, CA 92123 (619) 576-2996 San Diego and Imperial Counties SAN GABRIEL/POMONA REGIONAL CENTER 761 Corporate Center Drive Pomona, CA 91768 (619) 620-7722 San Gabriel and Pomona Valley SOUTH CENTRAL LOS ANGELES REGIONAL CENTER 2160 West Adams Blvd. Los Angeles, CA 9018 (323) 734-1884 Compton, San Antonio, South Los Angeles, Southeast Los Angeles, and Southwest Los Angeles Health Districts TRI-COUNTIES REGIONAL CENTER 520 East Montecito Street Santa Barbara, CA 93103 (805) 962-7881 Ventura, Santa Barbara, and San Luis Obispo VALLEY MOUNTAIN REGIONAL CENTER (Stockton) 706 Danny Drive P.O. Box 692290 Stockton, CA 95269-2290 (209) 473-0951 Amador, Calaveras, San Joaquin, Stanislaus, and Tuolomne Counties WESTSIDE REGIONAL CENTER (Culver City) 5901 Green Valley Circle, Third Floor Culver City, CA 90230 (310) 337-1155 Ingelwood, and Santa Monica West Health Districts High-Tech Centers for the Disabled High-Tech Centers are housed at various colleges. They provide disabled individuals with access to microcomputers and adaptive software. Bakersfield Community College Supportive Service Center 1801 Panorama Drive Bakersfield, CA 93305-1299 (805) 395-4334 Donald Johnson Berkeley High School Workability Center/Special Education 2246 Milvia Street Berkeley, CA 94704 (510) 644-6046 Louis Thomas/Vicki Vansteenberg Butte College-CARLO Disabled Students Program & Services 3536 Butte Campus Drive Oroville, CA 95965 (530) 895-2455 Richard Dunn Cabrillo College Learning Skills Program 6500 Soquel Drive Aptos, CA 95003 (408) 479-6379 Frank Lynch CSU-Long Beach Disabled Student Services 1250 Bellflower Boulevard, Room 206 Long Beach, CA 90840 (562) 985-5401 David Sanfilippo CSU-San Jose Disabled Resource Center One Washington Square San Jose, CA 95192-0168 (408) 924-6000 Martin Schulter Cerritos Community College Disabled Students Program & Services 11110 Alondra Boulevard Norwalk, CA 90650 (562) 860-2451 Ext. 2333 Bob Hughlett College of Alameda Program and Services for Students with Disabilities 555 Atlantic Avenue Alameda, CA 94501 (510) 748-2328 Voice (510) 748-2330 TTY Cerry Comton College of Marin Disabled Students Program 835 College Avenue Kentfield, CA 94904 (415) 485-9406 Marie McCarthy College of San Mateo High Tech Center 18-193 1700 West Hillsdale Boulevard San Mateo, CA 94402 (650) 574-6432 Arnett Caviel College of the Desert Disabled Students Program & Services 43-500 Monterey Avenue Palm Desert, CA 92260 (760) 773-2534 Diane Ramirez College of the Redwoods-Eureka Disabled Student Services-Eureka 7351 Tompkins Hill Road Eureka, CA 95501-9302 (707) 476-4280 Cuesta College Assistive Technology Center P.O. Box 8106 Highway 1 San Luis Obispo, CA 93403-8106 (805) 546-3148 Lynn Frady College of the Canyons Disabled Students Services 26455 North Rockwell Canyon Road Santa Clarita, CA 91355 (805) 259-7800 Ext 3341 College of the Redwoods-Del Norte Disabled Student Services 883 West Washington Boulevard Crescent City, CA 95531 (707) 476-4280 College of the Sequoias Enabler 915 South Mooney Boulevard Visalia, CA 93277 (209) 730-3805 Don Mast Cypress College Educational Service Center 9200 Valley View Street Cypress, CA 90630 (714) 761-0961 Cristine Terry Diablo Valley College Disabled Students Programs & Services 321 Golf Club Road Pleasant Hill, CA 94523 (925) 685-1230 Ext. 546 Jan Umbreit East Los Angeles College Disabled Students Program 1301 Brooklyn Avenue Monterey Park, CA 91754 (213) 265-8785 Joseph Najar El Camino College Special Resource Center 16006 Crenshaw Boulevard Torrance, CA 90506 (310) 532-3670 Paul Culton Evergreen Valley College DSP, High Tech Center 3095 Yerba Buena Road San Jose, CA 95135-1598 (408) 270-6447 William Cooksley Fresno City College Disabled Students Program 1101 East University Avenue Fresno, CA, 93741 (209) 442-8237 Janice Emerzian Fullerton Community College Disabled Student Center 321 East Chapman Avenue Fullerton, CA 92634 (714) 992-7270 Cristine Terry Glendale Community College Disabled Students Program & Services 1500 North Verdugo Road Glendale, CA 91208-2894 (818) 240-1000 Ext. 5449 Hartnell College Disabled Students Program 156 Himestead Avenue Salinas, CA 93901 (408) 755-6760 Wayne Davis Imperial Valley College Disabled Students Program & Services P.O. Box 158 Imperial, CA 92251--158 (760) 352-8320 Ext. 312 Melvin Wendrich Inyo County Office of Education ROP 135 South Jackson Independence, CA 93526 (760) 873-7000 Donald Davies Irvine Valley College Supportive Services 5500 Irvine Center Drive Irvine, CA 92720 (949) 541-5243 William Hewitt Kings County ROP Kings Government Center 1144 West Lacey Boulevard Hanford, CA 93230 (209) 582-2823 Ext. 4259 Dr. Don Russell Laney College Disabled Resource Center 900 Fallon Street, Room #-251 Oakland, CA 94607 (925) 464-3428 Carol Dalessio Lassen Community College Disabled Students Program & Services P.O. Box 3000-Highway 136 Susanville, CA 96130 (530) 257-6181 Ext. 156 Richard Springer Los Angeles Harbor College Disabled Students Program & Service 1111 Figueroa Place Wilmington, CA 90744 (310) 522-8281 Deborah Tull Los Angeles Mission College Disabled Student Programs and Services 13356 Elridge Street Sylmyr, CA 91342 (818) 364-7732 Ext. 7732 Rick Scuheri Los Angeles Pierce College Special Services 6201 Winnetka Avenue Woodland Hills, CA 91371 (818) 719-6430 Norm Crozer Merced College Disabled Student Services 3600 M Street Merced, CA 95348-2898 (209) 384-6155 Robert Lenz Merritt College Resources for Students w/ Disabilities 12500 Campus Drive Oakland, CA 94619 (510) 436-2429 Ponnie Rasmussen Modesto Junior College Disability Services Center 435 College Avenue Modesto, CA 95350 (209) 575-6225 Robert Williams Monterey Peninsula College Supportive Service 980 Fremont Boulevard Monterey, CA 93940 (408) 646-4070 Ron Baker Moorpark College Disabled Student Services 7075 Campus Road Moorpark, CA 93021 (805) 378-1461 Jan Andiese Mount San Antonio College Disabled Student Service Center 1100 North Grand Avenue Walnut, CA 91789 (909) 594-5611 Ext 4290 Mayme Thornton South Orange County ROP High Tech Center 310 South Acacia Fullerton, CA 92631 (714) 491-8592 Kay Turley Oxnard College Vocational Education 4000 South Rose Avenue Oxnard, CA 93033 (805) 986-5830 Cherl Sherer Pasadena City College Learning Disabilities Program 1570 East Colorado Boulevard Pasadena, CA 91106 (626) 585-7127 Dr. Kent Yamauchi Palomar College Disabled Students Program & Services Adaptive Resource 1140 West Mission Road San Marcos, CA 92069 (760) 744-1150 Ext. 2598 Jane Mills Rancho Santiago College Learning Center Seventeenth at Bristol Santa Ana, CA 92706 (714) 564-6260 Cheryl Dunn Rio Hondo College Disabled Students Program & Service 3600 Workman Mill Road Whittier, CA 90601 (562) 692-0921 Ext 3420 (Voice) (562) 699-4071 (TDD) Patrick Boyle Saddleback College Special Services 28000 Marguerite Parkway Mission Viejo, CA 92692 (949) 582-4612 Loma Hompkins San Diego Mesa College Disabled Student Services 7250 Mesa College Drive H-201 San Diego, CA 92111 (619) 627-2780 Connie Russert San Francisco Community College High Tech Center John Adams Campus 1893 Grove Street San Francisco, CA 94117 (415) 561-1822 San Francisco Community College High Tech Center Phelan Campus 50 Phelan Avenue San Francisco, CA 94112 (415) 239-2328 Kathleen Kerr-Schochet San Joaquin Delta College Disabled Student Services 5151 Pacific Avenue Stockton, CA 95207 (209) 473-5330 Mark Mekjavich Santa Barbara College Disabled Student Services 721 Cliff Drive Santa Barbara, CA 93109-9990 (805) 965-0581 Ext. 2364 Janet Shapiro Santa Monica College Disabled Student Services 1900 Pico Boulevard Santa Monica, CA 90405 (310) 452-9265 Judith Schwart Santa Rosa Junior College Disabled Resource Department 1501 Mendocino Avenue Santa Rosa, CA 95401 (707) 527-4278 Elisabeth Carlson Solano Community College Enabling Office 4000 Suisun Valley Road Suisun, CA 94585 (707) 864-7145 Will Barnes University of California-Davis Disability Resource Center 160 South Silo Davis, CA 95685 (530) 752-3184 Maureen Brodie Ventura College Special Education 4667 Telegraph Road Ventura, CA 93003 (805) 654-6300 Orlene Bowers West Valley College Disabled Students Services 14000 Fruitvale Avenue Saratoga, CA 95070 (408) 867-2200 Ext. 2010 Pam Luster Yuba College Disabled Student Services 2088 North Beale Road Marysville, CA 95901 (530) 741-6795 Jay Simpson Specialized Services The following programs help provide information about assistive devices. Name: ABLEDATA Address: P.O. Box 826880 MIC 41 Sacramento, CA 94280-0001 Phone: (800) 346-2742 or (415) 853-1650 or (213) 621-7786 Contact: Chuck Kassis Services: This computer search services provides information about manufacturers of assistive devices in the U.S. and Canada. Information about California vendors is also available. The California Governor's Committee for Employment of Disabled Persons operates the service, and the California Employment Development Department funds the service. Name: City of San Jose Department of Neighborhood Services Offices of Therapeutic Services Address: 1530 Blossom Hill Rd. San Jose, CA 95118-3302 Phone: (408) 267-0200 voice (408) 267-2834 fax Contact: Jan Elix, Therapeutic Recreation Specialist Services: Provide recreational opportunities for persons of all abilities. Junior wheelchair sports camp. Name: Job Accommodation Network (JAN) Address: P.O. Box 6080 918 Chestnut Ridge Road, Suite 1 Morgantown, WV 26506 Phone: 1-800-ADA-WORK 1-800-526-7234 Services: JAN operates a no-cost, computerized information network and consulting service of job accommodations. Name: Direct Link Address: P.O. Box 93464 Solvang, CA 93464 Phone: (805) 688-1603 Contact: Linda Harry Services: Direct Link provides one-stop information and assistance for persons with disabilities of all ages, and assists organizations working with disabled individuals and their families to find resources. Name: State Department of Education Clearing House for Specialized Media and Technology Address: P.O. Box 944272 Sacramento, CA 94244-2720 Phone: (916) 445-1290 Voice/TDD Contact: Rod Brawley, Manager Services: This state organization provides resources and technical support for specialized media and access technology for students with disabilities. Name: Rehabilitation Engineering Technology Training Program School of Education BH 221-D San Francisco State University Address: 1600 Holloway Avenue San Francisco, CA 94132 Phone: (415) 338-1333 FAX (415) 338-7019 Contact: Alice Nemon Services: This program provides information about assistive technology and training of engineers, rehabilitation counselors, and others in the area of assistive technology. Name: California Department of Veterans Affairs Address: 1227 "O" Street Sacramento, CA 95814 Phone: (916) 653-2093 FAX (916) 653-2401 Services: This state program provides information and assistance to veterans concerning rehabilitation services and possible funding for assistive technology. Vehicle Modifications ADAPTIVE EQUIPMENT VENDORS Note: Following is a list of vendors who provide vehicle modification services. Their inclusion on this list does not constitute an endorsement of the quality or any other attribute of their work. Alameda County Mobility Systems 1010 Carleton Berkeley, CA 94710 (510) 540-0295 (William C. Fryckman) Butte County Norcal Mobility 1300 Nord Avenue Chico, CA 95926 (530) 893-1111 (Ken Karasinski) Fresno County Traber Engineering 4637 East Turner Ave. Fresno, CA 93702 (559) 251-1520 (Pete Nevarez) Transportation Specialties 4737 North El Capitan Fresno, CA 93722 (559) 275-1251 (Jay Heir Johnson) Kern County Mobile Equipment 3610 Gilmore Street Bakersfield, CA 93308 (805) 327-8476 (Evelyn Stanfill) Los Angeles County Adaptive Driving Systems 21050 Superior Street Chatsworth, CA 91311 (818) 998-1026 (Chuck Kutz) Advanced Mobility 7720 North Sepulveda Blvd. Van Nuys, CA 914055 (818) 982-1004 (Scott Deacon) Driving Systems Inc. 16139 Runnymeade Street Van Nuys, CA 91406 (818) 782-6793 (Bill Butt) Orange County Braun Corporation 15731 Graham Street Huntington Beach, CA 92649 (714) 891-4305 (Ed Kendzierski) Marad Industries New name: Southern California Mobility 11560 Sea Board Circle Stanton, CA 90680 (714) 898-7838 (Bruce Marich) Riverside County Mobile Help 613 South I Street San Bernardino, CA 92410 (909) 383-3883 (Brian Crane) Sacramento County Driving Specialties Limited 2216 Cemo Circle, Suite A Rancho Cordova, CA 95670 (916) 635-2765 (Phil Niles) Time Savers Products, Inc. 9210 Tokay Lane P.O. Box 57147 Sacramento, CA 95826 (916) 383-2452 (Ugo Laurengi) San Diego County Golden Boy of San Diego 12900 East Bookprinter Place, Suite 400 Poway, CA 92064 (619) 748-9414 (Gary Colle) Handi-Van, Inc. 1317 Simpson Way, Suite C Escondido, CA 92025 (760) 432-8785 (Janice Staley) Manufacturing and Product Service Corp. 7948 Ronson Road San Diego, CA 92111 (619) 292-1423 (George Hendrickson) Santa Clara County Adaptive Driving Aid 3155 Willamsburg Drive San Jose, CA 95117 (408) 866-7237 (Sam Graf) Acces Options, Inc. 1255 Alma Court San Jose, CA 95112 (408) 453-7355 Mobility Unlimited, Inc. 1701 B Rogers Ave. San Jose, CA 95112 (408) 453-7355 (Chuck Willams) New Ability Driving Systems 2470 Kruse Drive San Jose, CA 95131 (408) 435-8005 (Al Miller) Solano County Access Development 323 Sutton Place Santa Rosa, CA 95407 (707) 585-6226 Driving Specialties Ltd. 215 Commercial Street Vallejo, CA 94589 (707) 553-1515 (Phil Niles) Tulare County Cruising Unlimited 2415 Valley Oaks Drive Visalia, CA 93291 (209) 627-0581 (Jeff Johnson) Special Services for Persons with Hearing Impairments EDD - DEAF AND HEARING IMPAIRED PROJECT Individuals who are deaf or hearing impaired are eligible for special job-placement assistance through a project located in Employment Development Department (EDD) field offices. This special EDD project is cooperatively administered by nonprofit, community agencies which serve deaf individuals FRESNO Fresno Service Center West 2555 South Elm Avenue Fresno, CA 93706-5086 (209) 268-1765 TDD (209) 445-5112 Voice LOS ANGELES AREA West Covina 933 South Glendora Avenue West Covin, CA 91790-4296 (818) 814-8213 TDD (818) 814-8242 Voice North Hollywood 11049 Magnolia Blvd. North Hollywood, CA 91601-3874 (818) 509-5660 TDD (818) 509-5659 Voice West Los Angeles 10829 Venice Blvd. Los Angeles, CA 90034-7199 (310) 204-3229 TDD (310) 280-2648 Voice ORANGE COUNTY Santa Ana 1001 South Grand Avenue Santa Ana, CA 92705-4175 (714) 558-4562 TDD (714) 558-6774 Voice SACRAMENTO AREA Sacramento South 7001 A East Parkway Sacramento, CA 95823-9000 (916) 262-2423 TDD (916) 262-2424 Voice SAN BERNARDINO/RIVERSIDE AREA Riverside 3460 Orange Street Riverside, CA 92501-2880 (714) 782-3255 Voice/TDD (714) 782-3267 Voice San Bernardino 480 Mountain View Ave. San Bernardino, CA 92402-1131 (714) 383-4666 Voice/TDD SAN DIEGO AREA Deaf Community East 4579 Mission Gorge Place San Diego, CA 92120-4195 (619) 265-4825 TDD (619) 265-4873 Voice SAN FRANCISCO BAY AREA San Francisco 3120 Mission Street San Francisco, CA 94110-4594 (415) 821-6216 TDD (415) 8216219 Voice Fremont 39155 Liberty Street Fremont, CA 94537-5103 (510) 794-3664 TDD (510) 794-3885 Voice San Jose East 50 S. King Road San Jose, CA 95116-2599 (408) 928-1370 TDD (408) 928-1371 Voice Pleasant Hill 363 Civic Drive Pleasant Hill, CA 94523-1987 (510) 676-9913 TDD (510) 676-9912 Voice SANTA ROSA Santa Rosa 606 Healdsburg Avenue Santa Rosa, CA 95401-5187 (707) 576-2063 TDD (707) 576-2068 Voice Sources of Procurement Assistive Listening Systems Following are the names and addresses of firms known to be selling ASSISTIVE LISTENING SYSTEMS (ALS) or components. The list may be incomplete since the industry is becoming very dynamic as the popularity of ALS increases. Write for quotation and/or information. Inclusion in this guide does not indicate endorsement. AUDEX (Infrared systems) 713 N. Fourth street Longview, TX 75601 AUDIO ENHANCEMENT (COM-TEK) (FM broadcast systems) 942 Spoede Road North St. Louis, MO 63146 BY-WORD (AM broadcast systems) 64 Fort Point street East Norwalk, CT 06855 (203) 853-6166 EARMARK, Inc (FM broadcast systems) 1125 Dixwell Avenue Hamden, CT 06514 (203) 777-2130 NADY SYSTEMS (Infrared systems) 145 65th street Oakland, CA 94609 (510) 652-2411 OTICON CORPORATION (Small audio loop systems) 29 Schoolhouse Road Somerset, NJ 08873 (800) 526-3921 OVAL WINDOW AUDIO (Induction lop systems) 4 Collins Road Yarmouth, ME 04096 (207) 846-6250 PHONIC EAR (FM broadcast systems) 250 Camino Alto Hill Valley, CA 94941 (800) 227-0735 RADIO SHACK (Components: Amplifiers, microphones, earphones, cords, etc.) (Refer to local stores) RASTRONICS USA (Personal Audio Loop Systems) 1125 Globe Avenue Union, NJ 07083 (201) 654-6034 SIEMANS HEARING INSTRUMENTS (Infraren systems) 685 Liberty Avenue Union, NJ 07083 (800) 631-7965 SOUND ASSOCIATES, Inc. (Infrared systems) 424 West 45th street New York, NY 10036 TELEX COMMUNICATIONS (FM broadcast systems) 9600 Aldrich Street Minneapolis, MN 55420 (800) 328-8212 WILLIAMS SOUND (Induction loop, FM broadcast systems) 5929 Baker Road Minnetonka, MN 55345 (800) 328-6190 WIREFREE INFRARED SYSTEMS (Infrared systems) C/O George DeVilbiss 3056 Hazelton Street Fall Church, VA 22044 (703) 534-1681 Professional and Interdisciplinary Resources American Academy of Physical Medicine and Rehabilitation 122 S. Michigan Avenue, Suite 1300 Chicago, IL 60603-6170 (312) 922-9366 (312) 922-6754 (Fax) American Occupational Therapy Association 1383 Piccard Drive Rockville, MD 20850 (301) 948-9626 American Physical Therapy Association 1111 N. Fairfax Street Alexandria, VA 22314 (703) 684-2782 American Respiratory Therapy Association 11030 Ables Lane Dallas, TX 75229 (214) 243-2272 American Speech-Language-Hearing Association 10801 Rockville Pike Rockville, MD 20852 (800) 638-8255 (301) 897-5700 International Society for Augmentative and Alternative Communication (ISAAC) AI Dupont Institute 1600 Rockland Road P.O. Box 269 Wilmington, DE 19899 (302) 651-6830 Medical Rehabilitation Information Bureau 1910 Association Drive Reston, VA 22091-1502 (800) GET-REHAB (800) 688-688-6167 (TDD) National Rehabilitation Information Center (NARIC) 8455 Colesville Road, Suite 935 Silver Spring, MD 20910 (800) 346-2742 (301) 587-1967 (Fax) RESNA Technical Assistance Project 1700 N. Moore Street, Suite 1540 Arlington, VA 22209-1903 (703) 524-6686 (703) 524-6639 (TTY) (703) 524-6630 (Fax) National Rehabilitation Association 633 S. Washington Street Alexandria, VA 22314 (703) 836-0850 Organizations Alexander Graham Bell Association for the Deaf 3417 Volta Place, NW Washington, DC 20007-2778 (202) 337-5220 American Association of Retired Persons (AARP) Disability Initiative 601 E Street, NW Washington, DC 20049 (202) 434-2277 (202) 434-2479 (TTY) American Council of the Blind 1155 15th Street, NW, Suite 720 Washington, DC 20005 (800) 424-8666 (202) 467-5081 (202) 467-5085 (Fax) The ARC (formerly the Association of Retarded Citizens) 500 E Border Street, Suite 300 Arlington, TX 76010 (800) 433-5255 Arthritis Foundation 1314 Spring Street, NW PO Box 19000 Atlanta, GA 30309 (800) 283-7800 (404) 872-7100 Center for Accessible Technology 2547 8th Street, 12A Berkeley, CA 94710 (510) 841-3224 Clearinghouse on Computer Accommodation (COCA) 18th and F Street, NW Room 1234, KGDO Washington, DC 20405 (202) 523-1906 Clearinghouse on Disability Information Office of Special Education and Rehabilitative Services Room 3132 Switzer Bldg. 330 C Street, SW Washington, DC 20202-2524 (202) 205-8241 Council for Disability Rights 208 S. LaSalle Suite 1330 Chicago, IL 60604 (312) 444-9484 (312) 444-1977 (Fax) Epilepsy Foundation of America 4351 Garden City Drive Landover, MD 20785 (800) 332-1000 Job Accommodation Network 918 Chestnut Ridge Road, Ste. 1 PO Box 6080 Morgan Town, WV 26506-6080 (800) 526-7234 The Lighthouse Inc. 800 Second Avenue New York, NY 10017 (212) 808-0077 (800) 334-5497 Muscular Dystrophy Association 3300 E. Sunrise Drive Tucson, AZ 85718 (602) 529-2000 National Association of the Deaf 814 Thayer Avenue Silver Spring, MD 20910 (310) 587-1788 National Association of Hearing and Speech Action (NASHA) 10801 Rockville Pike Rockville, MD 20852 (301) 897-8682 National Council on Independent Living 4th & Broadway Troy, NY 12180 (518) 274-0701 National Easter Seal Society 1350 New York Avenue, NW, Suite 915 Washington, DC 20005 (202) 347-3066 (202) 347-7385 (TDD) (202) 737-7914 (Fax) National Federation of the Blind 1800 Johnson Street Baltimore, MD 21230 (410) 659-9314 (410) 685-5653 (Fax) National Head Injury Foundation 1776 Massachusetts Avenue, NW, Suite 100 Washington, DC 20036 (800) 444-6443 National Multiple Sclerosis Society 733 Third Avenue New York, NY 10017 (800) 532-7667 National Organization on Disability (NOD) 910 - 16th Street, NW #600 Washington, DC 20006 (202) 293-5968 National Spinal Cord Injury Association 600 W Cummings Park, Suite 2000 Woburn, MA 01801 (800) 962-9629 National Technology Center American Foundation for the Blind 15 W 16th Street New York, NY 10011 (212) 620-2000 Self Help For Hard of Hearing People, Inc. 7910 Woodmont Avenue, Suite 1200 Bethesda, MD 20814 (301) 657-2248 (391) 657-2249 (TTY) Technical Aids and Assistance for Persons With Disabilities 1950 W Roosevelt Road Chicago, IL 60608 (312) 421-3373 Trace R&D Center S-151 Waisman Center 1500 Highland Avenue Madison, WI 53705 (608) 262-6966 United Cerebral Palsy Associations, Inc. 1522 K Street, NW, Suite 1112 Washington, DC 20005-1202 (800) 872-5827 (202) 842-1266 Veterans Affairs Prosthetic and Sensory Aids Service Washington, DC 20420 (202) 872-1151 Advocacy Resource Guide This listing is not a complete list of advocacy resources in California, however, it should provide a useful starting point for appropriate advocacy or legal services in your geographic area. The services that each organization provides that are relevant to assistive technology are listed here. AIDS Legal Services Santa Clara County Bar Assoc. Law Foundation 111 West St. John Street, Ste. 315 San Jose, CA 95113 (408) 293-3135 Serves income eligible HIV-infected Santa Clara County residents in areas of employment, government benefits and insurance. AIDS Project of Los Angeles Department of Legal Services 1313 North Vine Street Los Angeles, CA 90028 (213) 993-1640 Serves HIV-infected individuals in areas of discrimination and other areas. California Rural Legal Assistance Foundation 2000 "O" Street, Suite 240 Sacramento, CA 95814 (916) 446-7904 Community Alliance for Special Education (CASE) 1031 Franklin Street, Suite B5 San Francisco, CA 94109 (415) 928-2273 Serves students in area of special education. Deaf Counseling Advocacy and Referral Agency (DCARA) 134 North Bay Street San Mateo, CA 94401 Serves individuals who are deaf or hearing impaired. Department of Fair Employment and Housing 2014 T Street, Suite 210 Sacramento, CA 95814-6824 (916) 445-9918 Disability Rights Education and Defense Fund (DREDF) 2212 Sixth Street Berkeley, CA 94710 (510) 644-2555 (Voice/TDD) Serves individuals with disabilities in areas of housing, employment, access discrimination and education. Employment Law Center 1663 Mission Street, Suite 400 San Francisco, CA 94103 (415) 864-8848 (415) 864-8208 (Workers' Rights Clinic) Serves low-income clients in area of employment law, including free telephone and walk-in clinic. Hawkins Center of Law and Services for the Disabled 101 Broadway Avenue Richmond, CA 94804 (510) 232-6611 Serves individuals in areas of SSDI and SSI. Lawyer Referral Services (Call the local Bar Association.) Legal Aid Societies (Look in the telephone book for the local office.) Serves low-income clients, generally in the area of housing and government benefits. National Health Law Program (NHeLP) 2639 South La Cienega Blvd. Los Angeles, CA 90034 (310) 204-6010 Welfare Project Technical Assistance Line (888) 864-8281 (toll free) National Senior Citizens Law Center 3435 Wilshire Boulevard, Ste. 2860 Los Angeles, CA 90010 (213) 639-0930 Serves low-income elderly clients in the areas of Medi-Cal, Medicare, nursing homes, Social Security, and SSI. Project Sentinel 1055 Saratoga Road, Suite 3 Sunnyvale, CA 94087 Serves individuals in the areas of housing discrimination. Protection and Advocacy, Inc. 100 Howe Avenue, Suite 185N Sacramento, CA 95825 (916) 488-9950 (800) 776-5746 Swords to Plowshares 1063 Market Street, 3rd Floor San Francisco, CA 94103 (415) 252-4788 Serves low-income veterans in areas of disability claims and discharge upgrades. Vietnam Veterans of California, Inc. 2455 Bennett Valley Road, #214C Santa Rosa, CA 95404 Serves Vietnam veterans in northern California in areas of Social Security, SSI, SSDI, veterans' benefits and IEPs for disabled children of veterans. Western Center on Law and Poverty 3701 Wilshire Blvd., Suite 208 Los Angeles, CA 90010 (213) 487-7211 or 2000 "O" Street, Suite 230 Sacramento, CA 95814 (916) 442-0753 Serves low-income clients with an emphasis on housing, government benefits, and health. Western Law Center for Disability Rights Loyola Law School 919 South Albany Street. Los Angeles, CA 90015 (213) 736-1031 Serves individuals with disabilities in areas of employment discrimination, government benefits, housing, physical and sensory accessibility. Youth Law Center 114 Sansome Street, Suite 950 San Francisco, CA 94104 (415) 543-3379 Serves children in areas of child welfare and health care, and the coordination of health care. Health Insurance Counseling and Advocacy Program - "HICAP" "...HICAP is a volunteer supported program that provides assistance with Medicare problems and help with health insurance. The program provides unbiased information to help you make the best choice for your individual health care needs. HICAP does not sell, endorse or recommend any specific insurance. Assistance is free, and includes community education services and individual counseling." Client Referral List: LEGAL ASSISTANCE FOR SENIORS 614 Grand Avenue, Suite 400 Oakland, CA 94610 Alameda County (510) 832-3040 (510) 839-0393 CALIFORNIA STATE UNIVERSITY, CHICO First and Ivy Streets, Building D Chico, CA 95929-0792 Butte, Colusa, Glen, Plumas Counties (530) 898-5961 (530) 898-5923 (800) 822-0109 HUMAN RESOURCES COUNCIL P.O. Box 919 956 Mountain Ranch Road San Andreas, CA 95249 Calaveras, Alpine, Amador, Mariposa, Tuolumne Counties (209) 754-3114 (209) 754-0381 (800) 400-8828 CONTRA COSTA COUNTY OFFICE OF AGING 2530 Arnold Drive, Suite 300 Martinez, CA 94553 Contra Costa County (925) 335-8700 (925) 335-8731 VALLEY CAREGIVERS RESOURCE CENTER 5424 North Palm Avenue, Suite 108 Fresno, CA 93704 Fresno County (559) 488-3821 (559) 447-4870 HUMBOLDT SENIOR RESOURCE CENTER 1910 California Street Eureka, CA 95501 Humboldt County (707) 442-3263 (707) 443-9747 KERN COUNTY OFFICE ON AGING 2717 O Street 1415 Truxtun Avenue (mail address) Bakersfield, CA 93301-5215 Kern County (661) 861-2218 KINGS/TULARE AREA AGENCY ON AGING 1920 West Princeton, Suite A Visalia, CA 93277 Kings, Tulare Counties (559) 737-4682 (559) 730-2551 (800) 321-2462 CENTER FOR HEALTH CARE RIGHTS 520 South Lafayette Park Place, Suite 214 Los Angeles, CA 90057 Los Angeles County (213) 383-4519 (800) 824-0780 MERCED COUNTY AREA AGENCY ON AGING 851 West 23rd Street Merced, CA 95340 Merced County (209) 385-7550 (209) 385-7402 (800) 434-0222 ALLIANCE ON AGING 2200 Garden Road Monterey, CA 93940-5329 Monterey County (831) 647-7899 (831) 655-1334 ORANGE COUNTY COUNCIL ON AGING 1971 East 4th Street, Suite 200 Santa Ana, CA 92705 Orange County (714) 479-0107 (714) 560-0424 INLAND AGENCY 6235 River Crest Drive, Suite P Riverside, CA 92507 Riverside, Inyo Counties (909) 697-6584 (909) 697-6560 (800) 273-4227 LEGAL CENTER FOR THE ELDERLY AND DISABLED 2862 Arden Way, Suite 200 Sacramento, CA 95825 Sacramento, El Dorado, Nevada, Placer, San Joaquin, Sierra, Sutter, Yolo, Yuba Counties (916) 488-5298 (916) 973-3148 (800) 626-2200 PRO*TECH HICAP 8775 Aero Drive, Suite 238 San Diego, CA 92123 San Diego County (619) 565-1392 (619) 565-8772 LEGAL ASSISTANCE FOR THE ELDERLY 1453 Mission Street, Suite 500 San Francisco, CA 94103 San Francisco County (415) 861-4444 SELF HELP FOR THE ELDERLY 50 East 5th Avenue San Mateo, CA 94401 San Mateo County (650) 348-6927 (800) 200-0268 CENTRAL COAST COMMISSION FOR SENIOR CITIZENS 208 West Main Street, Suite B Santa Maria, CA 93454-5027 Santa Barbara, San Luis Obispo Counties (805) 928-5663 (800) 548-5497 COUNCIL ON AGING OF SANTA CLARA COUNTY INC. 2115 The Alameda San Jose, CA 95126 Santa Clara County (408) 296-8290 SENIOR NETWORK SERVICES 1777-A Capitola Road Santa Cruz, CA 95002 Santa Cruz, San Benito Counties (831) 462-1433 (831) 462-5510 SENIOR LEGAL CENTER 1647 Hartnell Avenue, Suite 6 Redding, CA 96002 Shasta, Lassen, Modoc, Siskiyou, Trinity Counties (530) 223-6979 (530) 223-0999 (800) 479-8808 NORTH BAY HEALTH RESOURCE CENTER 55 Maria Drive, Suite 837 Petaluma, CA 94952 Sonoma, Lake, Marin, Mendocino, Napa, Solano Counties (707) 762-4591 (800) 303-4477 THE SALVATION ARMY MODESTO CORPS P.O. Box 1663/ 625 I Street Modesto, CA 95353-1663 Stanislaus County (209) 577-4068 HICAP/AREA AGENCY ON AGING 77 North California Street Ventura, CA 93001 Ventura County (805) 641-4420 HICAP 1681 West Main Street, Suite 200 El Centro, CA 92443 Imperial County (760) 873-6364 (877) 462-2298 AREA 1 AGENCY ON AGING 801 I Street Crescent City, CA 95531 Del Norte, Humboldt Counties (707) 464-1114 (707) 443-9747 INYO-MONO AREA AGENCY ON AGING 119 Mac Iver Street, Suite B & C P.O. Box 1799 Bishop, CA 93515 Inyo, Mono Counties (760) 873-6364 (877) 462-2298 FRESNO-MADERA AREA AGENCY ON AGING 5424 North Palm Street, Suite 108 Fresno, CA 93704 Madera County (559) 447-4870; (800) 434-0222 Publications BOOKS Adaptive Housing Guidelines and Planning for an Accessible Community and ADA Implementation. New manual,California Accessibility Reference Manual State Architect Office Access Compliance Dept. 830 K Street Mall Sacramento, CA 95814 (916) 445-2163 (916) 322-4700 Cost: None The Guide to California Multi Family Access Regulations California Building Officials 2215 - 21st Street Sacramento, CA 95818 (916) 457-1103 Cost: $21.50 (includes tax, shipping and handling) Assistive Technology for Persons with Disabilities WC Mann, JP Lane AOTA Products 1383 Piccard Drive P.O. Box 1725 Rockville, MD 20849-1725 (301) 948-5512 Assistive Technology Sourcebook RESNA Press 1700 N Moore Street, Suite 1540 Arlington, VA 22209-1903 (703) 524-6686, (703) 524-6639 (TDD), (703) 524-6630 (FAX) Durable Medical Equipment Review Benkei Publishing Company, Inc. Queen Executive Center 167 Washington Street Norwell, MA 02061 Living in the State of Stuck: How Technology Impacts the Lives of People With Disabilities M Scherer Brookline Books PO Box 1046 Cambridge, MA 02238 (617) 868-0360 Computer Resources for People With Disabilities-A Guide to Exploring Today's Assistive Technology The Alliance For Technology Access Hunter House PO Box 2914 Alameda, CA 94501-0914 (510) 865-5282, (510) 865-4295 (FAX) Physical Medicine and Rehabilitation: Home Health Care and Rehabilitation J. Portnow, Editor Volume 2, No. 3, August 1988 Hanley & Belfus, Inc. 210 S 13th Street Philadelphia, PA 19107 (215) 546-7293 Resources for Elders with Disabilities (1990) Resources for Rehabilitation 33 Bedford Street, Suite 19A Lexington, MA 02173 (617) 862-6455 The Self-Help Sourcebook American Self-Help Clearinghouse St. Clares Riverside Medical Center 25 Pocono Road Denville, NJ 07834 (201) 625-7101 (201) 625-9053 (TDD) CompuServe: 70275, 1003 Technology and Disability Butterworth-Heinemann 80 Montvale Avenue Stoneham, MA 02180-3605 (800) 544-1013 GENERAL PERIODICALS Journal of Visual Impairment and Blind American Foundation for the Blind 15 West 16th Street New York, NY 10011 (212) 620-2000 The Exceptional Parent 605 Commonwealth Ave. Boston, MA 02215 (800) 852-2884 NARIC Quarterly National Rehabilitation Information Center 8455 Colesville Road, Suite 935 Silver Spring, MD 20910-3319 (800) 346-2742 Worklife President's Committee on Employment of People with Disabilities Washington, DC 20036-3470 (202) 376-6200 Independent Living Magazine 150 Motor Parkway Hauppauge, NY 11788-5145 (516) 273-0066 Cost: Available on subscription basis. Accent on Living Magazine P.O. Box 700 Bloomington, IL 61702 (309) 378-2961 Cost: Available on subscription basis. Sports 'n Spokes 2111 East Highland Avenue, Suite 180 Phoenix, AZ 85016-4702 (602) 224-0500 Focus on Technology P.O. Box 7455 Mountain View, CA 94039-7455 Paraplegia News 2111 East Highland Avenue, Suite 180 Phoenix, AZ 85016-4702 (602) 224-0500 Rehabilitation Gazette (&) Polio Network News (&) IVUN News Gazette International Networking Institute 5100 Oakland Avenue, #206 St. Louis, MO 63110 (314) 534-0475 ---------- End of Document