COMMON FUNDING "EXCUSES" RELATED TO
COMPUTERS & ENVIRONMENTAL CONTROL DEVICES

Lew Golinker, Esq.
May 8, 1995
        
SPECIAL EDUCATION

Excuse # 1:  Schools Are Not Required To Provide
Computers:  If The Child Needs One,  Someone Else Must
Pay For It

Response:  Student use of computers in public schools is not
new.  They have been available for many years, but they
usually have had restricted access and limited use.  In many
schools, computers were first acquired to supplement
science or math courses and to provide opportunities for
children in so-called "gifted and talented" programs.

By contrast, many school districts have only recently directed
their attention to the use of computers to aid learning by
children with disabilities, and in some districts, there still has
been no thought or planning on this subject.

Those school districts that have explored the use of
computer technology for children with disabilities have
discovered that there are almost limitless potential benefits
from their integration into children's educational programs.

Computers can increase students' ability to access the
curriculum, increase students' opportunity for social
interaction; enhance students' communication options and
skills; and develop students' personal productivity skills.
Computers also can help bridge the segregation/isolation of
children with disabilities that has historically been associated
with special education.

Computers can aid in the identification of disabilities and in
the development of an Individualized Education Plan ("IEP").
Assessment software can aid evaluators in the identification
of specific learning deficits and impairments.  Other software
programs are available to aid in the development of IEP
goals based on the child's age, academic level, and learning
deficits.

Computers also can be the principal means by which a child
with a disability accesses the educational curriculum.

Computers with speech synthesizers and augmentative
communication devices can supply a voice for children who
are non-speaking;

-word processing programs, with thesaurus, spell check
and grammar check features can make written expression
meaningful for children with learning disabilities;

-voice output, scanning for input, enlarged or reformatted
text, adapted keyboards, switch scanning, and voice
recognition for input, and Braille printing features can permit
both reading and writing by children with visual impairments
and children with severe physical impairments; and

-an extraordinary array of educational programs can
promote mastery of material by repetitive drill and practice;
provide tutorial/practice opportunities to augment instruction;
aid development of generalizable problem solving skills;
provide supplementary instruction; and increase personal
productivity for children with cognitive impairments and other
learning disabilities.

The most common use of computers in schools is to provide
the opportunity for "drill and practice" of already covered
material: the computer serves as a substitute for flash cards
and worksheets.  Through computer generated problems,
children can gain mastery of curriculum content, and
increase the speed of their responses to questions.

This computer function is most valuable for children who
require repetition in order to master concepts or information,
and for those who require problems to be broken down into
multiple steps.  Their greatest asset in this regard is their
lack of emotion, their infinite patience.  Computers will allow
children to proceed at their own pace, to make mistakes, and
to search out the correct response.

They also can provide instant feedback, which is impossible
for a human teacher.  Also unlike people, computers do not
have "bad days," they will not become frustrated, and they
are non-judgmental about errors.  In fact, they can be
precisely the opposite: existing software has many features
that reward children for correct answers, and which
otherwise increase their motivation to continue.

A related benefit of these programs is that they free the
classroom teacher to provide more meaningful assistance
and instruction to all the children in the class.

A second area of computer potential is as a tutor or
instructor: commercial software or software designed or
adapted by school staff, can provide instruction of new
material.  Educational software is available that addresses
almost all curriculum subjects and grades.  They use a
variety of written explanations, graphics, and problems to
provide instruction.

The software also is sophisticated enough to generate
additional problems when children demonstrate difficulty in
grasping the concepts being taught.

This use of computer technology is especially important for
the integration of children with cognitive impairments into
mainstream educational settings.  Integrated programs that
tailor instruction to the educational levels of individual
students are currently being advocated as the model
program for educational services delivery to children with
disabilities.

In integrated classrooms, all children in a class will have
common instructional periods for various subjects: math, for
example, but learning is individualized to the child's ability.  If
a child with a disability is not capable of benefitting from the
same instruction as is offered to the class as a whole, s/he
can receive individualized instruction through the computer.

With proper lesson planning, the child can be integrated into
the class lesson for part of the session, and be directed to
the computer for other parts.

This use of the computer also will provide benefits to children
who have no cognitive impairments, but who have been
unable to participate in regular education settings because of
sensory and/or severe physical impairments.  Computers
may provide an alternative for children who may not be
physically able to manipulate class texts and paper.

For example, there are many different ways a computer can
present information in a textbook: it can read the text aloud;
it can display the text on a screen in normal size; and it can
alter the text display, such as by increasing the size of the
print, or re-printing the text in Braille or large type.

Another alternative is to provide a substitute learning
experience for a child whose physical limitations interfere
with his or her participation in certain activities, such as a
chemistry lab.  Software exists to allow students to model the
same experiments on the computer and thereby gain the
same knowledge as his or her classmates.

Yet another alternative is perhaps the most obvious: the
computer can serve as a pen, paper and notebook for
children who are unable to write, take notes, or complete
assignments due to a variety of disabilities.

Finally, computers have the ability to teach children
generalized problem solving skills that will supply benefits
throughout their lives.  Programs can teach children
organizational skills, problem simplification, fact analysis,
and permit trial and error solutions.

Despite the extraordinary variety of uses to which computer
technology can be put in schools, they will be of no benefit to
children with disabilities unless the schools make computer
aided instruction part of the child's program.  Parents can
rely on many resources to demand that computer aided
instruction be considered for their child, and that it actually
be provided.  Parents have the right to insist:

- that their children receive an appropriate evaluation by
knowledgeable professionals;

- that appropriate an accessible computer hardware and
software be purchased;

- that computer access be provided in all subject areas in
which it will provide benefit to the child's learning; and if
necessary,

- that a computer be made available for the child's sole use.

There is a strong legal foundation to support parent
demands that their children with disabilities be provided
computer access.

The Individuals With Disabilities Education Act ("IDEA,"
formerly the Education for All Handicapped Children Act
("EHA")), is an effective means to secure computer access
by students with disabilities.  Under the IDEA, children
between age 3 and 21 are entitled to a "Free Appropriate
Public Education" (FAPE).

A FAPE consists of 3 interrelated parts:  special education,
related services, and least restrictive environment.  Access
to a computer can constitute any or all of these components
of an educational program for a child with disabilities.

Any serious question regarding the obligations of school
districts to provide computers or other assistive technology
devices and services ended in August 1990, when the Office
of Special Education Programs issued a policy letter that
expressly prohibits school districts from categorically
refusing to consider assistive technology as part of the
development or review of a child's IEP, or to refuse to
provide assistive technology identified as necessary.

The policy letter states further that assistive technology
devices and services can be either special education, a
related service, or a supplementary aid or service that
supports a student's least restrictive placement.  In October
1990, Congress confirmed the substance of the OSEP policy
letter.  In the Individuals with Disabilities Education Act
Amendments of 1990, Congress supplied definitions to the
terms "assistive technology devices" and "assistive
technology services."

Read together, the OSEP Policy Letter and 1990 IDEA
Amendments make clear that computer evaluations, devices,
and follow along services fall within the scope of the IDEA,
and that they must be provided by school districts when
determined to be necessary.

Section 504 of the Rehabilitation Act of 1973 prohibits
schools from discriminating against children with disabilities.
This will include school assertions that there simply are not
enough computers to go around, or that computer access is
available only for some children, but not others. Section 504
prohibits schools from denying children with disabilities
access to aids benefits or services provided to other
children.

It also prohibits schools from limiting their participation in, or
benefit from an aid, benefit or service provided to others.
Where children without disabilities have access to computers
in school, the denial of computers to children with disabilities
will constitute a violation of Section 504.

A third legal mandate for schools to supply computers
needed by children with disabilities is the Americans with
Disabilities Act, passed in 1990.  Title III of the ADA prohibits
discrimination against persons with disabilities by operators
of public accommodations and services providers, including
places of education.

Excuse # 2:  Parents Or Private Health Insurance Should
Pay For The Device

The "Free" in FAPE is extremely significant with regard to
children with disabilities who may require assistive
technology.  As stated in the IDEA and regulations, all
aspects of the special education and related services
provided to a child must be "at no cost to the parents."  This
term is interpreted broadly.

The "at no cost" rule prohibits school districts from refusing
to include equipment, services or programs on the IEP
based on its expense.  And, once stated on the IEP, the
school district must provide the equipment, services, and
program needed to provide a FAPE.

The only time "cost" can be taken into consideration is where
two alternatives exist that would each enable the child to
receive an "appropriate" education.  In that circumstance, the
district may choose the less expensive option.

If school districts must provide a FAPE in a cost-blind
manner, immediate attention will be directed to opportunities
for cost-shifting to other sources.  Among the most obvious
sources are the parents' themselves, and private health
insurance policies.

i.  Schools Cannot Require Parents To Pay
For Programs, Services Or Equipment Listed On A Child's IEP

School districts cannot evade the "at no cost to parents" rule
by telling parents they must pay for the needed equipment,
services, or programs themselves.

Schools cannot state that, because a computer can and will
be used at times when school is not in session (such as
before and after the school day, on weekends and holidays)
the school is therefore not obligated to provide it.  This
"excuse" makes no real sense:  everything children are
taught and learn in school is intended to be used and further
refined beyond the school setting.  That is the whole purpose
of school: preparation for life.

When viewed in terms of the goals of education as a whole,
the 'out of school' benefit excuse ceases to make any sense.
It could just as easily be applied to justify not providing
mathematics or science instruction.  Obviously this is not a
valid criterion to determine the school's duty to provide
services.

Schools also cannot refuse to provide a needed computer by
claiming that the child can bring the device from home.  This
"excuse" also cannot pass a common sense test: children
are not asked whether they have copies of reading materials
at home, and if so, books are not provided at school.
Children are not asked whether they have basketballs or
footballs at home, and if so, gym equipment is not provided.
Children are not asked whether they have bicycles, or
whether their parents have cars, and if so, transportation is
not provided.

Why then should it matter whether a child has a an assistive
device at home?  In fact, it does not.  While there is no
barrier to a child bringing assistive technology from home to
school, schools have no authority to mandate it.

Finally, schools cannot claim that a particular service
identified as an IDEA "related service" is needed, but for
"medical" as opposed to "educational," reasons.  Congress
identified a wide range of "health" services as educationally
"related;" school districts are not free to ignore or evade that
designation.

Once a service is identified as being "needed" for the child to
benefit from his/her special education program, then the
service must be provided by the schools.  By recognizing the
connection between the service and the child's special
education, the educational/medical distinction ceases to
have any significance.  The only alternative is for the school
to argue that the service is not needed at all.

ii.  Schools Cannot Require Parents' Health
Insurance To Pay For A Child's FAPE

Since 1980, the U.S. Department of Education has stated
that school districts are absolutely forbidden from requiring
the parents of a child with disabilities to use private
insurance proceeds to pay for required services where the
parents would incur a financial loss.  In addition, even if it
could be established that no such loss would occur, coercion
still is forbidden: the use of insurance proceeds must be
voluntary.

The U.S. Department of Education reported on research
findings that 73 % of all health insurance policies had lifetime
dollar caps; 71 % had annual or lifetime limits on coverage
for specific services; that claims use affected future
insurability; and that claims use raised future insurance
costs.  On the basis of this research, OCR restated the
validity the 1980 interpretation.

The possibility that a "cost" will be associated with use of an
insurance policy can be both explicit, and implicit.  For
example, a policy may cover durable medical equipment, as
well as other services that may be IDEA related services.
However, the policy also may include caps on coverage,
deductibles, co-payment responsibilities, or other express or
subtle limitations that would constitute  a "cost" or "financial
loss" if the policy is used for services in school.

Care must be taken to ensure that a policy does not have
such a limitation before a parent considers using his or her
insurance to pay for a computer that would otherwise be the
responsibility of a local school district.

This provision does not preclude school districts from asking
parents whether they have any insurance coverage, but
school districts have no authority to require parents to
disclose those policies, or to permit school authorities to
review them.

Excuse # 3:  None Of Our Staff Is Capable Of Determining
Whether A Computer Is Needed, And None Is Trained To
Provide The Service Even If It Is

Response:  There is an unpleasant irony to schools pleading
ignorance in regard to educational methods and techniques.
More importantly, ignorance is not a valid excuse under the
IDEA.

The underlying premise of the IDEA is that old ways of
educating children with disabilities are no longer acceptable.
New programs, services, and new ways of thinking are all
required.  As technology has been developed to enable
children with disabilities to be better able to receive and
benefit from instruction, the August 1990 OSEP Policy
Letter, and the 1990 IDEA Amendments make clear that
technology must be incorporated into school programs.

The IDEA also recognizes that to be successful, the
instructional staff, the administrative staff, and the staff that
provides specialized services all must be aware of these new
methods and techniques and be capable of applying them.
"Staff development" is a requirement of the IDEA.

For children who will benefit from computer aided instruction,
schools must ensure that all staff that will have contact with
the child will know how the hardware and software is
expected to be used and how it will benefit the child.

It is not necessary or sufficient for the school to require the
child to access the computer in a special education class, or
in some other out of class setting.  It also is not appropriate
for the special education or related services personnel to be
the only school staff knowledgeable about the child's use of
the computer.

These staff should not be delegated unique responsibilities
for these children's needs.  Instead, using staff development,
and appropriate IEP goals development, classroom teachers
and aides,  as well as related services providers should all
be able to address the child's needs, and computer related
activities while in the classroom.

Another consideration is that by providing appropriate
assistive devices, the child's need for separate classes or
pull out services may be able to be reduced.  As noted
above, integrated education programs will permit children of
very different abilities in regular education classes with
computer aided instruction as a cornerstone of the children's
program.

In addition, if schools do not now have qualified staff, it is
clear that children with disabilities do not have to wait until
staff is 'brought up to speed.'  If school staff is not qualified to
conduct an appropriate computer aided instruction
evaluation, parents can secure an independent evaluation by
a qualified professional at school expense.


If school staff is not currently qualified to select hardware or
software, or to provide on-going services to a child who uses
a computer, the school can be required to hire a qualified
"consultant teacher" or "consultant related service provider"
from the community, who will provide instruction to both the
school staff and to the child.

Excuse # 4:  We Do Not Have The Money To Pay For
Computers

Response:  There are a number of 'truisms' relating to
educational expenses for children with disabilities.  One is
that the IDEA applies equally to every school district in each
state.  Its requirements are the same for big city school
districts, wealthy suburban districts, and small, poor, rural
school districts.

Another is that the IDEA does not provide much federal
financial assistance to any state or school district: the costs
of meeting the IDEA's mandates for special education and
related services remain largely a state and local
responsibility.  A third truism is that the cost of providing an
appropriate education to a child with disabilities cannot be a
consideration in determining whether the programs and
services are to be provided.

These truisms will have unequal application because some
districts are more wealthy, and "able" to provide the variety
of services children with disabilities may need.  Yet a
district's "ability/willingness" is not lawfully a factor in
determining its duty to provide an appropriate education.  No
child, anywhere in any state need accept anything less than
what the IDEA mandates: i.e., an appropriate education,
including, where necessary, the provision of computer
technology.

Schools cannot escape consideration of computer aided
instruction for children because of cost.  Schools cannot
escape providing devices and services related to these
needs because of cost.

The only opportunity available to schools to consider cost is
in regard to choosing between two equally appropriate
alternative courses -- the schools are then free to choose the
one that is least expensive.  But that option will have limited,
if any opportunity for application in regard to computer aided
instruction.  For a child who is an appropriate candidate for
computer based instruction, there really will be no alternative
service that will provide equal benefits.  For example:

- a child with a cognitive impairment will be able to have far
more individualized instruction, practice, and feedback
through an appropriate software program than s/he will from
a teacher or aide who is responsible for a class as a whole.
The benefit of the individualized instruction should be greater
learning.  The child may be able to have more ambitious
annual goals written on his/her IEP, and s/he will extract
more learning and skills from the school experience.

- a child with a learning disability may be able to produce
meaningful written work with minimal services, changing the
entire focus of the child's program in relation to written
expression from one of tedious services related to
overcoming his/her impairment, to developing his/her skills
utilizing a word processor and related software.  Similarly, a
child who is non-speaking can obtain a voice through an
augmentative communication device.  Here too, a
fundamental component of learning: expressive
communication, that previously was beyond the reach of this
child, can now be a part of his/her program.

- a child with sensory or severe physical limitations will be
able to participate far more fully in the educational process,
also expanding his/her learning potential, expanding goals,
and increasing total benefit.

- children with either cognitive, sensory or severe physical
limitations may be able to be integrated into a regular
classroom through the use of computer aided instruction.
Even if no individualized goals are changed, the computer
will offer these children a less restrictive placement, which
justifies its provision.

Excuse # 5:  A Computer For Your Child Will Constitute The
Child's Best Educational Program, But Are Not Required For
An Appropriate Program

Response:  All children with disabilities are entitled to a Free
Appropriate Public Education.  Schools that will oppose
specific educational programs or services on the basis of
"appropriateness" almost always are attempting to save
money, protect the school's control over the design of
programs, or both.

"What we provide is appropriate; what parents seek is 'best,'"
is a common response to a request for programs or services
other than what the school district offers.  When school
districts refuse to provide assistive technology, all of these
"excuses" will be at work.

A program is "appropriate" when it confers "educational
benefit."  Unfortunately, there is no substantive requirement
in the IDEA concerning the "degree" of benefit that must be
provided.  While there is no precise standard as to how
much "benefit" must be conferred, it is clear that educational
programs must do more than prevent regression, or provide
'de minimis' (i.e., something greater than zero) benefit.
Rather, the "benefit" must be "meaningful."

Computer aided instruction will very definitely confer
educational "benefits."  They will permit students to be more
integrated with children who have no disabilities, it will
improve their perceptual and psychosocial functioning,
improve their social interaction skills, and improve their
performance in academic subjects.  Each of these "benefits"
is a fundamental part of all children's education.
For some children, the degree of benefit will be the
elimination of the educational limitations imposed by the
child's disability.  This will be most clear for children who
were placed in segregated classes because they had
physical disabilities.

Although this practice never was justified, except by the
prejudices, fears and ignorance of educators, it was done,
and many such classes still remain, even 15 years after the
EHA/IDEA was enacted.  For such children an assistive
device can result in placement in a regular education
classroom, and instruction in the mainstream curriculum.

For other children, the device may permit the development of
new goals related to each of the areas of benefit, based on
new expectations of the child's potential.

But are these improvements "appropriate" or "best"?  The
answer lies in the description of the child's program before
the computer aided instruction is considered.  Questions
must be asked about the child's goals in each of the areas
the assistive device can address:

- Does the child have access to all the instruction and other
activities that are available to other children his/her age?

- Has the child reached the same level of social maturity as
his/her age peers?

- Is the child placed in a regular classroom, receiving the
mainstream curriculum?

For almost all students who are appropriate candidates for
computer aided instruction, the answer to these questions is
almost certainly to be "no."  If so, the next question is
whether the school has set instructional and related services
goals that will enable the child to achieve those performance
levels prior to age 21 when the child's educational
entitlement ends?  That too is likely to be answered in the
negative.

What then, are the levels to which the school is expecting
the child to reach?  It may be that the school district has set
very limited goals for the child, if it has considered his/her
long term goals at all.  Schools that maintain segregated
classes for children with physical disabilities are likely to
have stated the lowest -- and least realistic -- expectations
for these children.

Yet here is where the benefits of computers and other
assistive devices can be seen most clearly.  These devices
may provide significant opportunities for the child that never
before were considered attainable: participation in the
regular education curriculum, employability, independent
living.  Changes in educational programs that will lead to any
of these goals are not "best" programs; rather, the denial of
instruction and/or services that will lead to these goals is not
appropriate.

A critical review of the child's individualized education
program ("IEP") is required.  The IEP should describe the
special education and/or related services designed to
increase the child's integration into regular education;
cognitive development, physical development, social
maturity, and academic skills.

But not every child who is an appropriate candidate for
assistive devices will have such goals on his/her IEP.  Many
children with disabilities may not be receiving any instruction
designed to increase these skills.

Parents should be particularly alert to IEPs that omit any
functional skills development and/or academic skills
development goals for children with disabilities (for example,
the elimination of expressive communication goals for a child
who is non-speaking).  When any of these fundamental
educational goals are omitted, the schools are stating their
assumption that the child has no potential to benefit from
instruction in that subject.

Such conclusions stated for any child, particularly in light of
the vast array of educational software programs that are
available should be suspect.

For these children, computer aided instruction may enable
them to develop and benefit from many different academic
and social opportunities.  Increased learning, increased
communication skills, less restrictive placements will all
increase the child's general level of benefit from the
educational experience.

By being able to be more attentive and receptive to
instruction, these children may be able to benefit from
instructional opportunities, develop friendships, and
participate in extra- curricular clubs and activities that
previously were thought unattainable.

By contrast, where no such goals are stated on a child's IEP,
the school district will be required to demonstrate that the
child could not develop such skills even with computer aided
instruction, an augmentative communication device, and/or
appropriate follow-along services.  Like the proof of any
"negative assertion" this is likely to be an impossible task.

For school districts that are supplying "some" computer
instruction, or other services that address social and
academic skills development, the degree of these services
must be measured in regard to the abilities of children
without disabilities who are the same age.

The district will have to prove that either the current level of
services enables the child to develop these skills to the same
degree as his or her age peers; or that even with computer
aided instruction, that the child would not develop these skills
at a rate or to a degree significantly greater than s/he will
without the device.  This standard also is unlikely to be met.

In general, computer technology may open up many new
opportunities for children with disabilities.  Schools cannot
use the criterion of an "appropriate" education to retard their
development.

Excuse # 6:  This Computer Is The School's Property: You
May Use It In School, But You May Not Take It Home

Response:  This educational plan.  However, some school
districts may provide computer access during the school day,
but then state that the device cannot be removed from
school property.  It will not be permitted home after school,
on weekends, or during school holidays.  The school's
reasons will most likely be that the device is school property,
it is expensive, it is fragile, it is not portable, and it is not
provided solely for the benefit of only one child.

These statements may have some superficial appeal, but
they are nothing more than "excuses."  Not one of these so-
called rationales is valid.    A 199 policy letter from OSEP
confirmed the right for students with disabilities to take
equipment home when the equipment was needed in order
for the student to benefit from the educational plan.

All can be identified as either "discrimination" in violation of
Section 504 of the Rehabilitation Act of 1973, or a form of
categorical denial of assistive technology, a violation of the
IDEA.

A school that asserts its "ownership" of the computer as the
reason to restrict the device to school grounds is making out
a clear case of discrimination.  It is relatively easy to point
out that not all school owned property is restricted to school
grounds:

- School books are the property of the school, yet children
are expected, even required to take them home to perform
homework and continue their studies.

- School supplies are the property of the school, yet which
parents have not covered their refrigerator with their child's
artwork? (Here is an example of the school not only allowing
its property to leave school grounds, but to be given away.)

- School owned musical instruments are another example of
school property that are permitted, if not required to travel
home with children.

All of this school property either is permitted, or even
required to leave school grounds after the school day, on
weekends, and during school holidays.  For this reason,
school ownership is being asserted selectively to restrict
"certain" school property, that which is needed by a child
with a disability.

Of course a school can counter this list by providing an even
longer list of school property that does not leave school
grounds: desks, chairs, chalkboards, etc.  But a computer
does not serve the same purpose for a child with a disability
as does a chair or desk.

Instead, it is because the computer, software, and/or
communication device has intended uses that are identical to
those of other school property that can be taken home that
the selective restriction constitutes discrimination and is a
violation of IDEA.

For example, children with disabilities may use a computer
and software as textbooks, as worksheets, as pen and
paper.  It may be the only means by which the child can
write, or read.  If the child is denied access to the computer
outside of school, the child cannot do homework, cannot
review material that was interesting or confusing, cannot
study for tests.

In addition, refusing to permit the computer to go home will
deny the opportunity for parents of these children to
participate in their children's education.  Yet these are very
likely to be expectations of other children in the class, and an
opportunity, if not an expectation imposed on other children's
parents.

In such a case, providing opportunities and imposing
demands on some children, while denying those
opportunities to and demands on a child with a disability
constitutes discrimination in violation of Section 504.

For a child who seeks to take home a school owned
communication device, a similar case of discrimination can
be established.  Here, the child is being denied the
opportunity to practice in home, social and recreational
settings the rules of grammar, vocabulary, and other
expressive communication skills that are a fundamental part
of all children's education.

Children are not taught English, language arts, and spelling
solely to be able to communicate in school.  These subjects,
indeed, all of a child's education is intended as preparation
for life beyond the education system.  Math, social studies,
science are all required to permit the student to function as
an adult in today's world.  On what basis, then, can a school
state that some students can utilize, practice, and refine
those lessons only in the school building during the school
day?

This too constitutes discrimination.

Schools also may claim that the computers are fragile, and
will seek to prevent loss and/or damage by restricting their
circulation.  There are a number of possible responses to
this claim.  First, OSEP has issued a policy letter  that
clarifies the schools liability for devices.  Second, the school
probably has few, if any facts to base a claim that the device
will be lost or stolen if it is allowed to be taken home.

Also, if the child's IEP is properly written to include specific at
home goals related to the use of the device, including
parental participation, the likelihood of misuse, damage or
theft is far smaller.

Second, concern about loss or damage is no different than a
concern about cost.  Loss/damage control is nothing but a
claim that it will be too expensive to fix or replace the
computer if it is stolen or broken.  Yet the school is not
permitted to consider the cost of a service in its
determination of what is appropriate for a child.

Cost factors are no more permissible a basis to refuse to
allow an assistive device to go home than they are to refuse
to provide the device at all.  Also, schools can get and
probably have insurance against such loss and damage, and
neither cost, nor an insurance policy can interfere with a
child's educational opportunities.

Another possible excuse is that the device used by the child
in school is not portable.  This will be an easy fact for the
school to establish, but that is not the end of the matter.  The
schools may have purchased these devices, or had them
donated, but no child with a disability is required to accept
what is available as the measure of his or her educational
opportunity.

The IDEA requires programs for children with disabilities to
be individualized.  If a child requires a service that the school
does not presently have within its resources, it must acquire
it.

Consider the possibility that a school's science teacher
retired.  Or that its special education teacher moved to
another district.  Will the school tell parents that their children
are not going to be given science next year?  Can the school
refuse to provide any special education to children with
disabilities?

The parallel extends to non-personnel resources as well.  If
the district has not computers, but one is identified as being
needed by a child with a disability, it must acquire it.  If the
school has a computer, but the child with a disability cannot
access it due to his or her sensory or physical limitations, the
school must acquire a second one that can be accessed by
that child.

And, if the school has a computer that can be accessed, but
which is not portable, the school faces the identical duty: get
another.

Finally, the school may assert that the computers in school
are not provided for the sole use of any one child, and it is
unreasonable to expect schools to provide computers to
every child with a disability who may use one during the
course of the school day.  This is the "if for one, for
everybody" excuse that children and adults are given
whenever decision makers seek to avoid individualized
solutions.

But such individualized decisions cannot be avoided for
children with disabilities.  Each child is entitled to an
individualized education program ("IEP"), and each may
have computer aided instruction goals that will necessitate
access to a computer at home.  Not every child may require
access to a computer at home every night; in those
circumstances, computers can be shared at home, as at
school.

But this is no reason to justify refusing to permit a computer
to be taken home by a child whose need for it can be
established.

In general, if the computer can be justified for school use,
there can be no valid basis to restrict it to that setting.

The 'school only' excuse may best be approached by careful
crafting of the child's IEP.  Here the goal must be to equate
the device with other 'things' children are permitted/expected
to take home with them.  For example, an IEP goal should
state that the child is to develop greater functional skill in the
use of the device.

If this is present on the IEP, learning the device becomes a
substantive part of the child's program.  As such, the child
would be able to take the device home to the same extent
any other child can take home a textbook or other school
resource to practice his/her lessons or further his/her
learning.

Equally true, the IEP should ensure that the child will be
assigned "homework" related to the curriculum, and to use of
the device, just as other children receive homework in their
academic subjects.

Another IEP goal must focus on a child's instructional
partners, such as parents, siblings and friends.  Use of
assistive devices requires some skills on the part of these
persons.  The IEP should list goals and as needed, provide
services to these persons so that they can assist the student
to use and benefit from the device.

With IEP goals such as these, schools will be hard pressed
to justify restricting computers, software and/or
communication devices to school grounds.  The 'can't take it
home' excuse should be undercut by careful preparation of
the IEP, and rejected out of hand if ever it is raised.

-----
VOCATIONAL REHABILITATION

Excuse # 1:     We Are The Payor Of Last Resort: You Must First
Exhaust All Other Possible Sources Of Funding

Response:       This statement is correct: in general, vocational
rehabilitation programs are payors of last resort.  But this criterion is
not applicable to "rehabilitation engineering."  This service, added
to the Rehabilitation Act in 1986, is defined as:

    the systematic application of technologies, engineering
methodologies, or scientific principles to meet the needs of and
address the barriers confronted by individuals with [disabilities] in
areas that include education, rehabilitation, employment,
transportation, independent living, and recreation.

This definition is broad enough to cover both the evaluations and
planning related to selection and installation of a computer and/or
environmental control device, as well as the acquisition of the
devices themselves.

One additional characteristic of rehabilitation engineering, is that it
exempts this service from the general vocational rehabilitation
status of "payor of last resort."  Rehabilitation engineering services
must be provided without regard to the availability of "similar
benefits," i.e., other potential sources of funding for the devices or
services.

In light of the definition of this service, and its exemption from
similar benefits calculations, a person determined to be an
appropriate candidate for a computer and/or environmental control
device can seek full vocational rehabilitation payment for the
devices and services without regard to the person's eligibility for
any other benefits program.

Excuse # 2:     We Will Not Provide A Computer Or Environmental
Control Device Because We Do Not Believe You Have Vocational
Potential

Response:       A common "excuse" by vocational rehabilitation
agencies has been to deny the existence of vocational potential to
persons whose employment opportunities may require a lot of work,
time and/or cost.  In large measure, persons with severe disabilities
have been the ones excluded from receiving vocational
rehabilitation services on this basis.

Although such decision making never was proper, the 1986
Amendments to the Rehabilitation Act clearly proscribe such
conduct.  The Act prohibits vocational rehabilitation agencies from
issuing determinations that a person lacks vocational potential
without first considering whether the person could benefit from
"rehabilitation engineering services."

This service, defined above, includes evaluations to determine
whether any assistive technology will enable the person to
demonstrate a reasonable expectation of employability; it also
includes the provision of equipment or devices to the individual, and
the adaptation of the physical environment (home and/or
workplace) to enable persons to work or to perform everyday
activities.
Both computers and environmental control devices are
rehabilitation engineering services.

An initial question to ask is whether any consideration of
rehabilitation engineering was given prior to the issuance of the
adverse finding.  It is likely the answer will be "no," and for this
reason the adverse finding cannot stand.  The person seeking
vocational rehabilitation services can insist on receiving a
rehabilitation engineering assessment prior to the issuance of a
rehabilitation potential determination.

Even if the agency claims that rehabilitation engineering was
considered, it is unlikely the agency could sustain an adverse
determination.  There are no objective tests to measure the
appropriateness of rehabilitation engineering services, and no
generally accepted criteria to determine the skills level of the
evaluator.

Rather, to date, the scope of the service has been limited only by
the skills and imagination of the person with disabilities, the
rehabilitation counselor, the evaluator, and potential employers.

Determining the vocational potential of a person who requires a
computer or environmental control device may require some effort
by the rehabilitation counselor, but it will be the rare person indeed,
a person with exceptional disabilities, who will not be able to
satisfactorily perform any of the 9 possible "outcomes" for which
vocational rehabilitation services will be provided.  These outcomes
include:

full time or part time competitive work
the practice of a profession
self employment
homemaking
farm or family work
sheltered employment
home based employment
supported employment
other gainful work.

For this reason, persons with disabilities should reject any
contention that they lack vocational potential absent a specific
inquiry regarding the ability of a computer to provide vocational
related assistance and support.

-----
MEDICAID

Medicaid is a public benefits program that provides medical
assistance to poor persons.  Medicaid is jointly funded and
administered by the state and federal governments.
Congress and the U.S. Health Care Finance Administration
(HCFA) set general program criteria and provide financial
assistance to the states.

The states, or state and local governments, are responsible
to administer the program, including eligibility decisions, and
to meet part of the program's costs.  Every state participates
in the Medicaid program.

Medicaid operates by providing reimbursement to providers
of covered medical equipment, services, supplies and
treatment to eligible persons.  Medicaid does not directly
supply medical services or a cash grant to recipients.
Emphasis is added because not all necessary medical
services may be included in a state's Medicaid program, and
not all poor persons may be eligible.

However, there are at least some eligible persons in every
state for whom computers and/or environmental control
devices are covered services.

In general, there are nine Medicaid services that can be
seen as resources for assistive technology funding.  These
services include:

Home Health Care/Durable Medical Equipment
Early, Periodic Screening, Diagnosis & Treatment ("EPSDT")
Intermediate Care Facility Services for Persons with Mental
Retardation
Prosthetic Devices
Rehabilitation Services
Speech-Language Pathology
Occupational Therapy
Physical Therapy
Preventive Services

Persons seeking computers and/or environmental control
devices must first learn which of these services are included
as part of their state's Medicaid program.  These services
are not all provided in every state, to all Medicaid recipients.
A chart listing the services in each state's program is
attached.

Once the covered services in the state Medicaid program are
identified, funding justifications for computers and/or
environmental controls must then be prepared to respond to
the definitions stated for each service.  This process is
described in the responses to the "excuses" listed below.

Excuse # 1:     Computer & Environmental Controls Are Not
Covered Medicaid Services In This State

The most general response to this "excuse" is that Medicaid
should fund all three components of the funding process for
computers and environmental control devices: evaluations,
device/system purchase or rental, and follow-along services.
These devices should be available to both children and
adults, and be available regardless whether the recipient
lives at home or in a residential care facility.

As noted above, Medicaid funding for assistive technology
depends on the ability of the requested devices and services
to fit within the definition of covered Medicaid services.
Computers and environmental control devices are covered
within the definitions of speech language pathology,
occupational therapy, prosthetic devices, durable medical
equipment, and rehabilitation and preventive services.

The service that will apply to any particular request will
depend on the list of services covered by the state Medicaid
plan, the individual characteristics of the person requesting
the device, and the characteristics of the device itself.

Among the characteristics of the person with disabilities who
is requesting the computer technology, the person's age and
residence are the most important:

  A.  Response if the applicant is age 21 or older and is living
at home

Adults residing at home in every state should have access to
needed computers and/or environmental control devices
through Medicaid home health services.  Home health
services is a required Medicaid service: it is one that all
states must provide.

One of the components of home health services required by
the federal Medicaid rules is durable medical equipment.
There is no single Medicaid definition of durable medical
equipment, but among the state definitions, there are four
common characteristics:  DME must be equipment which is
able to withstand repeated use, be primarily and customarily
used to serve a medical purpose, not generally be useful to a
person in the absence of illness or injury, and be appropriate
for use in the home.

Access to Medicaid home health services is based on a
physician's home health care plan.  The plan will identify the
person's home health services needs, and set goals for the
services to address.

Home care goals must be consistent with the purposes for
which Medicaid home health services are provided.  One of
those purposes is to enable persons with severe
impairments to remain at home, rather than be
institutionalized in a hospital, intermediate care facility, or
nursing facility.

For this reason, two key ingredients in a justification for
durable medical equipment provided as a Medicaid home
health service must be (1) a statement that establishes that
the requested equipment meets the definition of durable
medical equipment; and (2) an explanation of how the
equipment will promote and/or increase the recipient's
independence, self care and/or self determination.

When the durable medical equipment consists of computer
technology, the plan of care and justification must identify
specific goals related to how the technology will be used to
promote and/or increase the recipient's independence, self
care and/or self determination.

In many states, access to Medicaid funding for computers
may appear non-existent.  State Medicaid guidelines may
expressly identify computers as being excluded from
coverage as durable medical equipment.  The stated
rationales often are that computers are not primarily and
customarily used for medical purposes and they are
generally useful to persons with no disabilities.

These statements should not be read as total funding
exclusions.  Computers can and will be funded by state
Medicaid programs.  The words used in the definition of
durable medical equipment are not absolutes: they do not
limit medical equipment to devices that are "solely" used for
medical purposes, and "solely" by persons with illness or
injuries.  Rather, the definition uses "primarily," "customarily,"
and "generally."

These words permit individual exceptions, but will require
professional justifications that are very strong.  The computer
must be shown to serve a therapeutic purpose, i.e., improve
functional abilities, and also that the therapeutic
effects/improved functioning cannot be obtained through
other, less costly means.

The term "environmental control devices" as used in this
memorandum will apply to 2 different groups of devices.
One group is needed by persons with severe respiratory
impairments and other conditions that are affected by
temperature, humidity, and pollution.  The environmental
control devices in this group include air conditioners, air
filters and similar equipment.

The second group of devices is needed by persons with
severe physical impairments that limit mobility and/or fine
motor control.  The environmental control devices in this
group will control the physical environment, such as devices
to answer telephones and operate lights, doors and
appliances.   These devices often are electronic and operate
by remote control, through single or multiple switches.

The equipment in both groups is frequently cited by state
Medicaid programs as being excluded from coverage as
durable medical equipment.  These devices are described as
mere convenience items, rather than durable medical
equipment.

However, just as with computers, Medicaid funding can be
obtained for air conditioners, air filters, and computer based
and/or electronic devices that control the physical
environment.

The key to funding is the justification, which must make the
same showing as for a computer: that is, that the
environmental control device will serve a therapeutic
purpose (lessen the effects of an impairment and/or improve
functional abilities), and also that the therapeutic
effects/improved functioning cannot be obtained through
other, less costly means.

Five other Medicaid services that can serve as computer and
environmental control device funding resources also may be
available to adults living at home.  In contrast to home health
services, which is a mandatory component of each state's
Medicaid program, these five services are "optional."  States
are free to choose whether to include them in their Medicaid
program.

These services include: speech-language pathology,
occupational therapy, prosthetic devices, and rehabilitation
and preventive services.

If your state Medicaid program covers any of these services,
adults residing at home will be eligible for Medicaid
evaluations, devices, and follow along services.  In some
states, however, none of these optional services are
included in the state Medicaid program.  In those states,
persons with disabilities still can secure funding for needed
computers and environmental control devices and services
through home health services.

Speech-Language Pathology:      The Medicaid rules
applicable to services for persons with speech and language
impairments includes services provided by a licensed
speech-language pathologist, and "any necessary supplies
and equipment."

Electronic augmentative communication devices are
"necessary equipment" for persons who lack the ability to
communicate sufficiently by oral or manual means, whether
through injury, illness or condition.  Candidates for these
devices will be identified by speech language pathologists,
following a communication evaluation.

These devices work through the application of computer
technology.  Some, such as the Touch Talker, Light Talker,
and Vois 160, are specialized computers designed as
communication devices.  Others, such as the ACS Real
Voice, are simply laptop or micro-computers, with
specialized communication software.

Both the dedicated communication devices and the software
driven devices include models that are able to store letters,
words and phrases, synthesize speech, and provide written
output.  Some devices integrate all of these functions into a
single device, or they may be able to be joined to ("interfaced
with"), telephones, other computers and printers to broaden
their potential uses.

Occupational Therapy:  The common "definition" of
occupational therapy ("OT"), found in general medical
references, states that this service includes "the therapeutic
use of self care, work and play activities to increase function,
enhance development and prevent disability; it may include
modification of tasks or the environment to enable the patient
to achieve maximum independence and to enhance the
quality of the person's life."

The Medicaid rules applicable to occupational therapy
services is wholly consistent with this definition.  Medicaid
OT services include direct services provided by a licensed
occupational therapist, and "any necessary supplies and
equipment."

The direct services provided by occupational therapists are
many and varied.  They include both developmental and
functional skills, such as visual perceptual and psychosocial
development, attention span, concentration and memory,
problem solving, conceptualization and comprehension skills
development, and activity of daily living skills development.
The "equipment" that occupational therapists may
recommend includes assistive and adaptive devices and
environmental adaptations.

Computers and software can be recommended as
occupational therapy equipment, when necessary to assist a
recipient with any and all of these skills development goals.

In addition, appliances with remote control devices and the
ability to program their timing and/or their functions have
become common features in the modern home.  This same
technology, recommended by occupational therapists, offers
persons with disabilities an almost unlimited potential to
independently control their physical environments.
        
Prosthetic Devices:  The Medicaid definition of "prosthetic
devices" includes replacement, corrective, or supportive
devices that will artificially replace a missing portion of the
body, prevent or correct physical deformity or malfunction, or
support a weak or deformed portion of the body.

The scope of prosthetic devices has been expanded greatly
beyond artificial limbs and other body parts.  Strict
interpretations have not been given to this definition, which
has permitted persons with disabilities to obtain equipment
that substitutes for non- or poorly- functioning parts of the
body.

The key has been that the purposes for, and the functions
and uses to which the equipment will be put by persons with
disabilities are the same as those of persons whose limbs or
body parts have been amputated, or are physically
deformed.

For example, augmentative communication devices are often
described as "speech prostheses,"  which substitute for the
body's non-functioning speech mechanism, but cannot
correct or replace those muscles, nerves and tissues.  These
devices have been funded as Medicaid prostheses because
they are identical in function and use to an "artificial larynx" a
traditional, and commonly covered prosthesis.

Similarly, computers and environmental control devices have
the ability to serve as "prosthetics" because their uses,
purposes and functions will artificially substitute for non
working parts of the body, just as a traditional prosthetic
device will artificially replace those body parts.  In both
examples, the goal of the prosthesis is to improve or restore
the recipient's functional abilities.

Rehabilitation Services:  The Medicaid definition of
rehabilitation services includes any medical or remedial
service for the maximum reduction of physical or mental
disability and restoration of a recipient to his best possible
functional level.

The key element of the definition is that the goal of the
services is the restoration of functional abilities.  Computers
and environmental control devices have the ability meet that
goal, and computers have been funded by Medicaid for
persons who are recipients of comprehensive rehabilitation
services.  For example, for a person with a traumatic brain
injury, computers can aid in the restoration of cognitive,
language, perceptual and fine motor skills, among others.

For a person with a progressive neuro-muscular impairment,
a computer and/or environmental control device can enable
the person to maintain the ability to perform many
independent living tasks that would otherwise be lost.

Preventive Services:  The Medicaid definition of preventive
services includes services that are provided to prevent
disease, disability and other health conditions or their
progression, prolong life and promote physical and mental
health and efficiency.

Computers and environmental control devices have the
ability to serve many different preventive goals, in particular,
to minimize the disabling effects of illnesses, injuries or
conditions.  For example, computer technology will permit
adults to maintain a wide range of functional abilities,
including independent living skills.  For children, it can
promote cognitive development that is essential to the
prevention or lessening of developmental delays and other
handicaps.

  B.  Response if the recipient is less than age 21 and living
at home

The Medicaid Act requires each state to provide "Early,
Periodic Screening, Diagnosis & Treatment" ("EPSDT") as
part of the state Medicaid plan.  EPSDT covers persons
between birth and age 21.

Stated most generally, EPSDT is to health as Head Start is
to education.  Head Start provides training to pre-schoolers
whose poverty and family circumstances may interfere with
development of the basic skills that are essential to success
in school.  Head Start programs help these children develop
basic skills so that when they enter school they will be ready
to learn.  Experience has shown Head Start to be an
extraordinary success in improving at risk children's
educational performance.

EPSDT may be considered a "Health Start" program.  It is a
public policy recognition that by providing health services as
early as possible after a physical or mental impairment is
identified in children, the disabling or handicapping effects of
those impairments can be reduced or eliminated.

EPSDT works through a set of mandatory, periodic health
screenings for children.  The goal of these screenings is to
monitor the children's health, and to diagnose impairments
as early as they develop.
Then, and of greatest importance, the EPSDT program
requires states to provide all appropriate treatment that will
address the impairments.

The scope of treatment available under EPSDT includes the
equipment and services needed by children with disabilities
who may be able to benefit from computer technology and/or
environmental controls.  EPSDT entitles children to receive
any service that is covered by the Medicaid Act regardless
whether the state has chosen to provide the service as part
of its general Medicaid program for adults.

For this reason, the description in the preceding section of all
the services that may support computer funding will be
available to children in every state.

In addition, many state Medicaid plans do not cover all the
services that serve as computer technology funding
resources. As a result, these states may have no knowledge
of the full scope of those services.  For this reason, it is
appropriate to consider the experience of others states that
do cover those services, particularly those that have
provided computer funding.

It should be argued that if computer technology is funded in
any state, for adults or children, then a child in any other
state should be able to receive the service through the
EPSDT mandate.  A nationwide review of computer
technology and environmental control devices funding would
reveal that the following equipment should be covered in
every state:

communication devices, because more than half the states
provide these devices;

computers, at least when they are to be used for "cognitive
development,"  which have been funded by the New York
State Medicaid program;

environmental control devices such as air conditioners, and
air filters, which have been funded by both the New York
State and Minnesota Medicaid programs;

environmental control devices that will control the physical
environment, which are specifically identified by the Maine
Medicaid program as covered equipment within the definition
of occupational therapy services.

In addition, the EPSDT screenings will enable persons less
than age 21 to receive an evaluation that includes
consideration of computer technology, and if the person is
determined to be an appropriate candidate, s/he is eligible to
receive both the device and all the follow-along services
required to become familiar with its use.

  C.  Response for Adults or Children Residing In
Intermediate Care Facilities:

The Medicaid home health services rules state that the word
"home" does not include intermediate care facilities.  Thus,
persons residing in intermediate care facilities, which include
"long term care facilities" and "intermediate care facilities for
persons with mental retardation and developmental
disabilities" ("ICF/MR-DD") regardless of their age, must
utilize another service to secure needed computers and/or
environmental control devices.

Intermediate care facility services is an optional Medicaid
service that every state except Arizona includes in their
Medicaid programs.  Intermediate care facility services will
provide coverage for computer technology and
environmental control devices.

Long Term Care Facilities are required to provide care and
services necessary to promote maintenance or
enhancement of each resident's self determination and
individuality.  Residents are given the right to choose
activities, set their own schedules, interact with others, both
in and outside of the facility, consistent with their individual
interests.

These rights cannot be exercised if residents cannot
communicate, cannot control their physical environment
sufficiently, or are unnecessarily confined to a chair or bed.

The long term care facility regulations require facilities to
ensure that residents maintain their highest level of mental
and physical functioning, including their psychosocial
functioning.  Specifically, facilities must ensure that residents
do not become withdrawn, angry, or depressed, which are
definite risks if a person is not able to communicate, get
around, or control the light, heat, television, or telephones in
his or her environment.

To meet all these requirements, facilities conduct individual
assessments of each resident, and develop care and
treatment plans that address each resident's needs.  For
residents who will benefit from computers and/or
environmental controls, facilities must provide occupational
therapy, physical therapy, prostheses, or other services,
including assistive devices.

ICF/MR-DD's are required to provide active treatment, which
will include computer technology and environmental control
devices. ICF/MR-Dds are intended to be treatment facilities
that enable residents to achieve as much self determination
and independence as possible.  Persons with physical
impairments must be integrated with other persons with
different impairments in the facility, rather than be
segregated.

Facilities must furnish, maintain in good repair and teach
residents to use and to make informed choices about the use
of adaptive devices and equipment that are identified as
needed.

One important benefit of assistive technology in general, and
computer technology and environmental controls in
particular, is that these devices create new opportunities for
their users.  Among the new opportunities for persons who
reside in intermediate care facilities is the possibility of
discharge to a less restrictive community based setting.

Independent communication and control over one's physical
environment, often are stated as pre-requisites to life outside
of institutional settings.  Facilities must provide all the
devices and services required for a resident to be able to
discharged to the community.

Excuse # 2:  Computers & Environmental Control Devices
Are Not Medically Necessary

Response:  State Medicaid programs are authorized to limit
services to those that are "medically necessary."  Computers
and environmental control devices can be funded by
Medicaid because they can satisfy that criterion.

The phrase "medical need" is a term of art in the Medicaid
program.  To have a medical need for a device and/or
service does not require proof that they either constitute
medical care, or are needed to aid the person to obtain
medical care.  Instead, medical need is a far broader
concept.  A typical wording of a medical need definition is the
one used by Florida Medicaid.  It states that "medical
necessity" consists of:

   a service which is reasonably necessary to diagnose, cure,
alleviate or prevent the worsening of conditions that
endanger life, or cause suffering or pain, or result in illness
or infirmity, or threaten to cause or aggravate a handicap, or
cause physical deformity or malfunction, and there is no
other equally effective more conservative or substantially
less costly course of treatment available or suitable for the
recipient requesting the service.

This definition is almost identical to the one used by the New
York and Washington state Medicaid programs.

This definition of medical need has four essential parts.  To
establish an entitlement to Medicaid services a person must
demonstrate:

First, the person must have an illness, injury or condition
(hereafter, "condition") that has been diagnosed by a
physician.  The cause of the condition, for example, from a
birth impairment, injury or disease, does not matter.

Second, the condition must have significant handicapping
effects (cause functional limitations).  The description of
effects will constitute the heart of the professional
justification for Medicaid funding for all assistive technology.
For this reason, it is essential that the full scope of the
relevant effects are described.

Persons preparing justifications must measure these effects
by the degree to which they impair the person's ability to
function as does a person without any impairments.  Stated
another way: the person must have a condition that
threatens, causes or aggravates a significant handicap, or
interferes with his or her capacity for "normal activity."   The
comparison point for the handicap, and for normal activity,
are the functional abilities of persons without impairments.

As noted here, the handicapping effects and functional
limitations the person experiences are not limited to the act
of securing medical care.  While it is essential to describe
any condition-related difficulties the person has had securing
medical care (for example, delay in receiving appropriate
care), that is not the only relevant criterion.

In addition, it is essential to consider all impairment related
limitations on the person's ability to engage in normal
activity, including the ability to live independently, have self
determination, and engage in self care.

Third, the person must be able to identify a device or service
that will lessen or eliminate the impairment related limitations
on normal activity.  The device or service selected must be
the one that is the least costly service that is capable of
achieving the highest degree of functional improvement.

The facts stated here will address the need for the device
and/or service to constitute "treatment" for the condition.
Persons completing medical need justifications must state
clearly and forcefully that the assistive technology being
requested is treatment for the person's condition:

A communication device will constitute treatment by a
speech language pathologist for a person who is non-
speaking;

a computer will constitute treatment by an occupational
therapist for a child engaged in cognitive development;

a computer will constitute treatment by an occupational
therapist for a person of any age engaged in cognitive
rehabilitation;

an air conditioner will constitute treatment by a physician for
a person with a chronic respiratory or neuro-muscular
impairment that is adversely affected by high heat and
humidity.

In general, assistive technology is treatment.  It "treats"
various conditions by reducing or eliminating their residual,
handicapping effects.  By contrast, there is no medical or
factual principle that can support a conclusion to the
contrary: that technology cannot be treatment because it
does not affect the underlying condition itself.

Technology will permit persons with disabilities to function
more normally despite their impairments.  It is the treatment
method of choice for persons with some of the most severe
impairments.  Technology is now one of the treatment
methods being applied to a wide variety of persons with
disabilities.

It is replacing other types of care, and extending the benefits
of treatment to persons who previously were thought beyond
assistance.  Through technology, these persons are now
able to see significant improvement in their ability to function.

Fourth, the person must be able to establish that the device
and/or service s/he seeks fits within the definition of a
service covered by the state Medicaid plan.

If all four criteria are satisfied, the person will have
established a medical need for that device or service and
Medicaid funding should be provided.

A medical need for computers and environmental controls
can be established because they can lessen or eliminate the
functional limitations imposed by a wide variety of
impairments.

Computers will permit expressive communication through
oral and written means to persons not otherwise capable of
speaking or writing; they will aid the cognitive development
for infants as well as cognitive rehabilitation for persons with
brain injuries; computer controlled robots can permit
individuals with severe physical impairments to feed
themselves, and to independently control their physical
environment, among many other uses.

The key point in demonstrating medical need for computers
and environmental control devices is to identify the
limitations in the person's ability to function independently,
across a wide variety of activities, without an assistive
device.  In addition, a prospective judgment is required that
estimates the degree to which those limitations will be
lessened or eliminated when the device is provided.

It is helpful as well for the justifications for computers and
environmental control devices to demonstrate that improved
access to health care, and/or improved health will be a
consequence of the person's use of the device.

Improved communication with physicians, improved psycho-
social functioning due to decreased communication based
frustration, improved cognitive development, improved
cognitive rehabilitation, and improved independence, self
care and/or self determination are all important factors to be
included, where appropriate.

Excuse # 3:  Facility Staff Or Other Care Givers Are
Available To Meet All Your Needs

Response:  Persons who reside in health care facilities:
hospitals, nursing homes, intermediate care facilities,
community residences, etc., may have skilled staff on the
premises on a 24 hour a day basis.  Persons who reside at
home most likely will have relatives living in the same
household.  Why shouldn't they be able/required to meet all
of a person's needs?

This "excuse" is one of the most frequently stated reasons
for the denial of power wheelchairs to persons who are
incapable of independent mobility, and of augmentative
communication devices to persons who are non-speaking.
But it is an excuse just the same, and it should not be
accepted as a valid reason to deny Medicaid funding for
those devices or for computers or environmental control
devices.

Reliance on staff or family care givers is not a valid Medicaid
criterion.  Such reliance eliminates the development of
independence or self determination for facility residents, two
skills that are essential if community based living ever is to
occur.  In addition, the development of both characteristics
are specific mandates of Medicaid rules applicable to these
facilities.

There are also many common sense reasons, seemingly
never considered by Medicaid decision makers, which make
it abundantly clear that staff cannot realistically meet all
residents' needs.

For example:

   Persons who reside in facilities with 24 hour staff do not
have staff assigned on a 1:1,  staff- to-resident basis.  There
will be a few staff per ward or floor.  And, these facilities are
not hotels: they are health care facilities, and residents there
require health care services.  Meeting those services needs
is what staff will be doing throughout their shifts.  They do
not have time to meet the individual needs of each resident
for mobility, or environmental control.

    The impact of reliance on staff is that residents are denied
access to activities within the facility, or they are moved to
and from those activities according to staff availability.
Funding justifications should discuss non-attendance, late
arrival, and early departure from meals, social interaction,
recreation, education and rehabilitation programs will be the
result.  Also to be discussed are activities in the community
that follow a similar pattern: they will occur at all, and their
duration will be determined solely by staff convenience.

For Medicaid recipients at home, the answer is even more
clear.  Medicaid has absolutely no right to require family
members to assume responsibility for the provision of any
health care service to a recipient living in the same
household, whether an adult or child.

Most importantly, a requirement that family members provide
all feeding, mobility and environmental control functions is
inconsistent with Medicaid regulations.  EPSDT services
enable persons less than age 21 to receive any Medicaid
service which is available for federal reimbursement.
Rehabilitation services is one of these services.

Rehabilitation services are provided to ensure that recipients
achieve "maximum reduction of physical ... disability and
restoration of a recipient to his/her best possible functional
level."   That standard cannot be met if a child is not given
the opportunity to communicate, reach developmental
milestones, or control his or her environment independently.

Likewise, for adults living at home, home health care
services, including durable medical equipment, is a required
Medicaid service.  At a minimum, those services must be
provided in sufficient scope to enable the person to continue
to live at home.  Home care services are not provided only to
persons who have relatives living with them; if a person has
no spouse, or if a spouse dies, or moves to a nursing home,
or if an adult child moves away, the right to home health care
services continues.

Each person must be able to independently engage in
normal life activities, whether within his/her home, or in the
community.  Medicaid cannot deny the durable medical
equipment needed by a recipient to meet that standard.

Other rationales for rejecting an "excuse" of requiring family
members to provide for needs that could be addressed by
computer technology include:

   Medicaid may claim to be the payor of last resort, which
means that families may be asked to exhaust their financial
resources before becoming eligible for services, but
Medicaid is not the provider of last resort, also requiring
family members to exhaust their physical resources as well.
Medicaid has no more authority to require parents to control
their child's environment "just because it is simple," or
"because they are present already,"  than it has to require
parents to perform an appendectomy, a "simple operation,"
on their child.

    As a practical response, parents, like facility staff, are
likely to have competing demands for their time and
attention.  Medicaid has no authority to require parents to re-
order those priorities to provide services to one child with
disabilities instead of providing care to another child, or of
engaging in employment, or any other activity.

Excuse # 4:  Computers & Environmental Control Devices
Will Increase Your Social        Interaction, Quality Of Life Or
Meet Your Educational Needs

Response:  Medicaid may deny requests for computers and
environmental control devices by claiming that they will
primarily address the user's social, recreational or
educational needs, or that they simply will improve the user's
quality of life.

These excuses are frequently cited, but are not relevant to
the question whether the device must be supplied by
Medicaid.  Their basis is not related to the medical need for
the device, but the uses to which the device will be put.

One of the intended benefits of computers and
environmental control devices will be to permit the user to
have greater independence and self determination, which
may lead to greater social interaction and recreation.
Everyone involved in the device/system selection process
would agree that these are true benefits that should support
funding.

Medicaid, by contrast, will look not to these goals as being
factors that are part of the Medicaid definition of "medical
need."   Instead, Medicaid will look only to the list of activities
in which the person will be engaged: if it includes increased
socialization or recreation, then Medicaid deems the device
not to be necessary.  Medicaid may concede that it will
supply benefits, but not benefits that it is responsible to
provide.

This rationale is wrong.  First, the intended uses of the
device, spelled out in the funding justification, will establish
medical need.  The device will increase the user's functional
abilities, including overall health, self care, independence,
and self determination.  At that point, a favorable funding
decision is required.  That the full scope of activities includes
socialization and recreation simply is not relevant, based on
the other benefits the technology will deliver.

For residents of intermediate care facilities, this Medicaid
excuse is directly contradicted by the ICF regulations.  They
require facilities to provide services, for which Medicaid
reimbursement is provided, that will improve residents' social
functioning and quality of life.

In addition, discharge potential is a required assessment
criterion.  A person who is unable to communicate or control
his/her environment may not be able to live in a less
restrictive setting.  Thus, to state that a computer or
environmental control device will address those concerns
does no more than demonstrate that the facility is meeting its
obligations; it is not a reason to deny a service.

Even more generally, regardless where the person lives, or
whether s/he is a child or adult, a statement ("justification") of
the medical needs to be served by the device, and a
physician's prescription must accompany any request for
Medicaid services.  The justification must be prepared by a
competent professional, who serves as a consultant to the
person's physician.

The prescription and justification are the crucial documents
in any Medicaid services request.  They must explain clearly,
completely, and forcefully that the requested device meets
the person's medical needs.

The justification must explain why a computer, as opposed to
another device or service is necessary.  The justification also
must explain what software is being requested, and how the
hardware and software will improve the user's functional
abilities.  In addition, the treating physician must prescribe
the device, based on the recommendation contained in the
professional's justification.

These documents are likely to be the only supportive
information contained in a Medicaid services application.
They will constitute the only information Medicaid decision
makers will have about the person, his or her impairments,
and the ability of the requested device to lessen or eliminate
the functional limitations caused by those impairments.
Medicaid reviewers are required to base their decisions
solely on this information.

The Medicaid excuse that a computer will be used for social
or recreational purposes arises not from the record, but from
the prejudices and cynicism of the Medicaid reviewers.  They
may see a computer only as a means to play games; they
may have no independent knowledge of the way in which
computer technology has developed to aid persons with
disabilities.

The shortest response to this excuse is "so what?"  The
primary purpose for the requested device will be to address
impairment related functional limitations.  The primary
purpose will not be game playing.  Nothing in the Medicaid
law or rules states that funding is limited to devices that
serve only their primary purpose.

The ability of a device to have multiple uses is not a valid
reason to deny funding.  Instead, when Medicaid denies a
computer by claiming that the device will serve recreational
needs, Medicaid really is questioning the validity of the
justification: it is claiming that the primary uses and benefits
stated in the justification really are a sham, and that games
playing is the real intended purpose for the device.

But while that is easy to say, it will prove impossible for
Medicaid to prove.  The information in the file will provide no
basis to support that conclusion, and the cynical opinion of
the Medicaid reviewer will not be sufficient to uphold the
funding denial in an appeal.

Another possible excuse is that the computer will be used by
other members of the person's family.  This too is an excuse,
for which no proof can exist in the funding request.  Medicaid
will have no facts, as opposed to the opinion of its reviewer,
to demonstrate that providing a computer to one member of
a household will mean that other members will use it.  There
simply will be no proof available to support that assertion.

Even more to the point: this "risk" of use by another family
member is not a valid justification to deny the service.
Medicaid cannot deny funding for prescription drugs because
of the "risk" that other members of the household may take
them.

The excuse of benefit to others ("general benefit") will be
used to deny various types of environmental control devices
in addition to computers: air conditioners, in particular.
Medicaid may say "no" because the device will be of general
benefit to all members of the household.

Here too, the proper response is "so what?"  The air
conditioner is being provided to one person, for that person's
clearly justified medical needs.  As long as the device is
appropriate for that purpose, its other possible uses, and its
possible benefits to other persons are not important.

The implication of a "general benefit" excuse is that Medicaid
will provide air conditioners to persons who need them and
who live alone, but deny them to people with equal needs
who live with others.  For the first person there will be no
general benefit; for the second, there may be.  The absurdity
of this response is clear; its inability to be upheld in an
appeal is just as clear.

The clarity and strength of the justification will provide the
ultimate basis to overcome Medicaid's objections.  An air
conditioner may mean the difference between hospitalization
and home care for a person with a chronic respiratory or
neuro-muscular impairment during periods of high heat and
high humidity.  That will not only have great benefit for the
person, but it is likely to be cost effective for Medicaid as
well: hospital care will far exceed the cost of an air
conditioning unit.

In addition, it should come as no surprise that a computer or
environmental control device will improve the user's quality
of life.  This observation by Medicaid is a statement of the
obvious.  It is inconceivable that a person will request, or that
a physician will recommend a course of care or treatment
that will decrease the person's quality of life: that when it is
finished, the person will be worse off than when s/he began?
Of course care, treatment and services are prescribed to
increase the person's quality of life.
The problem for Medicaid is that the "quality of life" excuse is
too good: not only could it be used to deny assistive
technology devices and services, but it could be used
effectively to deny every Medicaid service requested by
every recipient.  Although such a result may save states a lot
of Medicaid expenses, it also would cause the state
Medicaid programs to cease to exist.

The educational purpose "excuse" is most often directed to
persons less than 21 who are eligible for special education
pursuant to the Individuals with Disabilities Education Act.
However, state Medicaid programs cannot escape funding
computers or environmental control devices simply by
claiming the devices are educational.

They also cannot otherwise shift the costs of covered
services, such as these devices, to schools.  In fact, the law
permits the reverse: schools can shift the cost of "related
services" that are covered by Medicaid to Medicaid.

Medicaid cannot deny funding because the computer or
environmental control device is to be used at school, or
because the request for funding comes from a school
evaluation.  Congress has prohibited Medicaid from refusing
to fund "related services" listed on the individualized
education programs ("IEP's") when those services also are
covered services in the state Medicaid program.

Because EPSDT now requires all services available for
federal reimbursement to be provided to persons less than
age 21, school age children will have access to Medicaid
funding for all necessary health related services, including
assistive technology devices and services.  Indeed, simply
by having the devices listed on a child's individualized
education program ("IEP") should be sufficient to secure
Medicaid funding for an eligible child.

Excuse # 5:  The Person Is Too Young/Old To Receive A
Computer Or Environmental Control Device

Response:  An applicant's age is not a valid factor in
determining his or her eligibility for Medicaid funded
computers or environmental control devices.  The Medicaid
program is only able to consider a person's degree of
medical need in making eligibility determinations.

A person's appropriateness as a candidate for a computer or
environmental control device in general will not be affected
by his/her age.  While the uses to which the computer
technology is put, and the benefits derived may differ, there
can be no serious challenge to the assertion that computer
technology is able to provide substantial benefits to persons
of all ages, from earliest infancy, to old age.

For young children, computer technology can assist a child's
cognitive, perceptual, and psychosocial development.  For
example, more than 1,000 children younger than age 4, who
have severe disabilities and who live in 25 states are
participating in the UCLA-UCPA-Apple Project.  This project
provides support to "early intervention" programs that are
making computer technology available to these children.
Other programs target even younger children for computer
aided early development.

These children are successfully utilizing computers to assist
them to reach well known developmental milestones.  For
other children who are not able to participate in specially
funded programs, Medicaid must provide the assistive
devices needed to allow the children to achieve comparable
developmental gains.

Although basic need for assistive devices is not age-related,
the particular device/system determined to be appropriate
will be very much dependent on the person's age, physical
abilities and limitations, and other circumstances surrounding
their daily lives.

Devices/systems for children will have to be viewed as being
appropriate for short durations: children grow and may
outgrow the devices provided to meet their developmental
needs.  Medicaid will have to continue to meet the child's
needs, both at present, and throughout the future.

Similarly, the physical abilities, living arrangements, and life
styles of adults with disabilities also will change.  Medicaid
must be responsive to these changing needs, whenever they
arise.

-----
PRIVATE INSURANCE

Excuse # 1:     Computers & Environmental Control Devices Are Not
Covered Services In This Policy

The first, and most important response to all insurance matters is to
carefully review the insurance policy.  In contrast to Medicaid,
special education and vocational rehabilitation, there are no federal
laws that specify what must be in health insurance policies.  And,
even though many states regulate insurance, including the scope of
coverage, there are many exceptions.

For these reasons, the bottom line is the insurance policy.
Insurance is a contract: the scope of the insurance company's
obligations to pay for medical expenses is limited to the express
terms of the insurance policy and their reasonable interpretation.

A contract is nothing more than an agreement between two people:
one who promises to supply goods or services, in this case the
insurance company, and the other, who promises to provide
payment for those goods or services.

But health insurance is a very unusual contract because the basic
agreement setting out both the scope of coverage and the total cost
is most often made by the insurance company and an employer,
not the employee who will utilize the covered services.

For most people, health insurance is a fringe benefit to
employment.  The health insurance plan, possibly more than one, is
available for the employee to enroll in at the start of employment.
Or, an alternative is that the company (particularly large employers)
may "self insure" meaning that it operates its own health insurance
program.

In either case, the health insurance plan is created for the benefit of
the employees, but in almost every case, the employees have little
or no voice in its terms.  Rather, health insurance is presented as a
'take it or leave it' proposition.   However, due to the extraordinary
costs of health care, few people offered employer provided health
insurance will refuse.

Not only will the people who will benefit from the health insurance
not have a real choice in determining the scope of insurance
coverage, they are not likely ever to see the official documents, i.e.,
the actual contract or self insurance plan.  Rather, they receive a
"summary of benefits" booklet, or a similar publication.  This booklet
generally is provided to employees at the time they are hired.

These booklets are supposed to be written in plain English, but very
often this is not the case.  They confuse because they do not
supply a clearly presented list of which services are covered, which
are limited, and which are not covered.

They should, but do not, supply sufficient information about the
services that the policy will cover, any employee responsibilities for
prior approval, co- payment, or deductibles, and any limitations on
coverage, such as services not covered, and/or limits on services
utilization (e.g., not greater than a certain number of sessions or
total cost per year, or total cost over the lifetime of the policy).

Many times, these booklets leave the employee uncertain whether
certain care, treatment and services are covered or not, or whether
conditions or restrictions will apply.  This is particularly true in
regard to persons requiring assistive technology devices and
services.

Computers and environmental control devices and services
(evaluation, devices/systems purchase or rental, and follow along
services) are unlikely to be identified specifically in the booklet.
Instead, it will be necessary to determine whether the policy covers
any services that can be interpreted to include these devices.

The key to insurance coverage for computer technology is to look at
the list of covered services.  If the policy states that speech
language pathology or speech therapy, occupational therapy,
durable medical equipment, and\or prosthetic devices are covered,
then the policy should cover computers and environmental control
devices.

The rationale for coverage under these services is explained in the
Medicaid excuses of this memorandum.

Once a covered service is found that should include computer
technology, the insurer should be requested to provide funding.
The particulars of the request may be spelled out in the policy.  If
so, special care must be followed to comply with those
requirements.

In general, a physician must prescribe the requested device, and a
speech therapist, occupational therapist or physical therapist must
prepare a justification.  The justification must explain

the prospective user's physical impairments;

his or her functional limitations without the requested device;

how his or her safety and/or medical needs are compromised; and

how the requested technology will be used, and how it will benefit
the user, i.e., how it will improve his or her functional abilities,
improve self care, independence or self determination, or how
safety/medical needs issues will be addressed by the use of the
requested device.

If the insurer rejects the request for funding, the policy may provide
for an internal appeal.  The appeal is often just a letter stating why
the adverse funding decision was improper, and adding any further
information that may have been omitted in the initial application.
The appeal also should make clear the applicant's belief that the
policy in fact covers the requested device, and that the rejection
was inconsistent with the policy.

Working with a knowledgeable physical or occupational therapist
will be very helpful.  The therapist may have worked with this
insurer before, and will be able to cite previous examples of device
funding.  The therapist also may be aware of funding decisions by
other policies with the same covered services.  In either case, these
examples should be included in the appeal letter.  In addition, three
other things should be addressed:

have all the documentation requirements stated in the policy been
followed?  Have all of the necessary forms, justifications, etc. been
submitted? If not, then these documents must be supplied.

the appeal letter should make specific reference should to the
covered service(s) that will support funding (physical therapy,
occupational therapy, durable medical equipment, prosthetics) and
the insurer should be specifically asked to explain why coverage is
not available under any/all of these services.

Many insurance companies limit coverage of durable medical
equipment to U.S. Food & Drug Administration approved devices.
Many seating, positioning and mobility devices have received FDA
approval. The appeal letter should make specific reference to the
fact that the device being requested is an approved medical device
by the FDA.   This information will be available from the device
manufacturer, and is likely to be known by the therapist who makes
the device recommendation.

Very often, the insurer will not be able to supply a reason why the
device is not within the scope of these covered services, and
funding will be provided.

Excuse # 2:     Computers and Environmental Control Devices Are
Not Medically Necessary

Insurance policies will state that requests for coverage must be
accompanied by a treating physician's prescription.  They also will
state that this document alone will not assure coverage.  Instead,
policies will state that the final determination of medical need will be
made by insurance company staff.

The insurance company staff may conclude that a computer or
environmental control device is not medically necessary and deny
the request.  The reason for the rejection may be that the device
will serve an "educational," "recreational" or "social" purpose, or
that they are a "convenience item."

These "excuses" should not be accepted.  It is beyond question that
computers and environmental control devices address medical
needs.  The phrase "medical need" is a term of art in insurance
policies.  A typical wording of a medical need definition is the one
used by Blue Cross of Maine.  It states that covered services must
be:

1)  medically appropriate for the symptoms, diagnosis, or treatment
provided for your symptom, condition, illness, disease or injury;
2)  the most cost-effective means that can safely be provided to
you;
3)  accepted medical practice and state of the art; and
4)  not primarily for the convenience of the member [person
insured], provider, or professional.

This definition of medical need is broad enough to permit funding
for a wide variety of assistive technology, including computers and
environmental control devices.

These devices will be covered because they constitute treatment;
they are cost effective; they are both accepted medical practice and
state of the art; and the benefits they provide, and the functional
limitations they overcome, cannot be reasonably be described as
mere "conveniences."

Computer technology and environmental control devices do
constitute "treatment" for many different conditions.  Persons
completing medical need justifications must state clearly and
forcefully that the assistive technology being requested is treatment
for the person's condition.  For example:

A communication device will constitute treatment by a speech
language pathologist for a person who is non-speaking;

a computer will constitute treatment by an occupational therapist for
a child engaged in cognitive development;

a computer will constitute treatment by an occupational therapist for
a person of any age engaged in cognitive rehabilitation;

an air conditioner will constitute treatment by a physician for a
person with a chronic respiratory or neuro-muscular impairment that
is adversely affected by high heat and humidity.

an environmental control device that permits a person with a severe
physical impairment to feed him/herself, to open doors, lights,
windows and shades, to use the telephone, to control the heat,
ventilation and air conditioning will constitute treatment by an
occupational therapist for a person with severe functional limitations
due to sensory and/or physical impairments.

In general, assistive technology is treatment.  It "treats" various
conditions by reducing or eliminating their residual,  handicapping
effects.  Treatment, as defined by the medical profession is not
limited to interventions that will affect the underlying condition itself.
Rather, it also intervenes to  maintain or restore a person's
functional abilities.  Technology will directly address its users'
functional abilities: it therefore most definitely will constitute
"treatment."

By contrast, there is no medical or factual principle that supports a
conclusion to the contrary: that technology cannot be treatment
because it does not affect the underlying condition itself.

Technology will permit persons with disabilities to function more
normally despite their impairments.  It is the treatment method of
choice for persons with some of the most severe impairments.

Computers will permit expressive communication through oral and
written means to persons not otherwise capable of speaking or
writing; they will aid the cognitive development for infants as well as
cognitive rehabilitation for persons with brain injuries; computer
controlled robots can permit individuals with severe physical
impairments to feed themselves, and to independently control their
physical environment, among many other uses.

Technology is now one of the treatment methods being applied to a
wide variety of persons with disabilities.  It is replacing other types
of care, and extending the benefits of treatment to persons who
previously were thought beyond assistance.  Through technology,
these persons are now able to see significant improvement in their
ability to function.

The key document in demonstrating medical need for computers
and environmental control devices is the professional justification
submitted along with the physician's prescription.  The justification
must identify the limitations in the person's ability to function
independently, across a wide variety of activities, without an
assistive device.

In addition, it must contain a prospective judgment that estimates
the degree to which those limitations will be lessened or eliminated
when the device is provided.

It is helpful as well for the justifications for computers and
environmental control devices to demonstrate that improved access
to health care, and/or improved health will be a consequence of the
person's use of the device.

Improved communication with physicians, improved psycho- social
functioning due to decreased communication based frustration,
improved cognitive development, improved cognitive rehabilitation,
and improved independence, self care and/or self determination are
all important factors to be included, where appropriate.

Computers and environmental control devices also meet this
definition of medical need because they are accepted medical
practice and state of the art treatment for persons with disabilities
with various conditions.

Technology for persons with disabilities is not experimental; there
has been an almost decade long public policy acknowledgement
that technology can supply great benefits for persons with
disabilities; large sums of public funds are directed to promoting
both technology awareness and technology access; research
journals, conferences, pre-service and in-service training of
professionals.

All of the above are directed to expanding the potential of persons
with disabilities to achieve greater integration into the mainstream
of everyday life.

Technology also is neither a luxury nor a convenience item.  The
"convenience" item excuse may be accompanied by a statement
that a particular device is not funded by the federal Medicare
program.  In fact, Medicare's policy manual states that certain
assistive technology devices are not funded because they are
convenience items.

In response, look at the summary of benefits booklet: there must be
a specific statement in the booklet that the policy will cover only
those devices that are funded by Medicare.  If not, there is no basis
for the insurer to limit coverage to those items.

In further response to such an excuse, the speech, physical or
occupational therapist and physician should explore the person's
ability to function without the requested device or service.  Who
would reasonably say that it is a matter of convenience to have the
ability to communicate privately with one's physician, to have the
ability to read, to live independently in the community, and avoid
hospitalization or institutionalization.  Those are the benefits of
computers and environmental control devices.  Those benefits are
not matters of convenience.

Excuse # 3:     This Policy Will Not Cover Services That Can Be
Obtained Without Charge From Any Other Funding Source

Insurance policies, like all other funding sources, attempt to position
themselves as the payor of last resort.  Both the federal Medicaid
and vocational rehabilitation laws have express provisions about
their "payor of last resort" status.  Many insurance policies have
similar provisions.  These may be written as coverage limitations
stating that

services that can be obtained without charge from any other
funding source are not covered, or

for persons between the ages of 3 and 21, a specific list of services
are not covered if they are required to be provided between the
hours of 8 am and 3 pm.

The first limitation is designed to force people to use government
benefits before seeking payment from their insurance policy.  The
second is specifically designed to force children to use the special
education program as the primary payor for required health
services.  The list of excluded services will parallel the list of
"related services" in the Individuals With Disabilities Education Act
(IDEA).

The response to these "excuses" is that persons eligible for
Medicaid are required by federal law to use their insurance benefits
first, before seeking Medicaid coverage.  No insurance policy can
exempt itself from that federal law.

In fact, people eligible for Medicaid may be able to secure a
computer or environmental control device from Medicaid, and then
"assign" Medicaid the person's rights to reimbursement from their
insurer.  Medicaid will be able to provide reimbursement to the
vendor of the device, and then the state can be reimbursed by the
insurance company.

Persons eligible for vocational rehabilitation services are directed to
utilize "similar benefits" for many VR services.  In addition, they
may be required to make a financial contribution to the total cost of
those services.  If there is a financial contribution requirement by
the state VR program, the service obviously is not available for free,
and the insurance policy limitation will not apply.

Indeed, it may be in the insurer's financial interest to pay the
person's "co-payment" responsibility under the VR program, rather
than pay the full cost of the device under the policy.

If there is no "co-payment" requirement, the VR program will be
required to pay for the full cost of the device.  As noted above,
computers and environmental control devices, and other services
that fall within the definition of "rehabilitation engineering" are
exempt from similar benefits considerations.

For any of these services, the VR program will be required to
provide the service without cost, and a request to VR instead of the
insurer may be appropriate.

Children with disabilities are similarly entitled to a Free Appropriate
Public Education.  Schools are expressly forbidden from refusing to
provide needed services, such as a computer as a means of forcing
the child to utilize insurance benefits, or from making demands on
insurance companies to provide payment for "related services" that
may also be covered services under an insurance policy.

But who pays when the schools and/or the state VR program, which
may be required to provide free services, nonetheless refuse to
provide those services, stating that the computer or environmental
control device fails to meet their program criteria?  Can the insurer
then refuse to provide coverage by still asserting that the device is
available for free from another source?

There is no clear answer to these questions.  The most reasonable
response is that the "assignment model" used by Medicaid should
be carried over to the insurance company: if the insurer asserts that
the device is available for free even though the special education or
VR program has rejected the request for funding, offer to let the
insurance company proceed with an appeal of the rejection from
that other source.

However, before any assignment is made, the person must insist
that the appeal be taken after the insurer has provided funding for
the device itself as a covered service under the policy.  Otherwise,
the person needing the technology becomes a pawn as the various
funding sources debate who is and who is not responsible to
provide payment.


This document was produced by the Assistive Technology Funding
and Systems Change Project, funded under Contract #HN940400
from the National Institute on Disability and Rehabilitation
Research, U.S. Department of Education, to United Cerebral Palsy
Associations, Inc., and its subcontractors.

The opinions expressed herein do not necessarily reflect the
position or the policy of the U.S. Department of Education, and no
official endorsement by the U.S. Department of Education of the
opinions expressed herein should be inferred.

For information, contact:
The Assistive Technology Funding & Systems Change Project
1660 L Street, NW, Suite 700
Washington, DC  20036
Tels:  (202) 776-0406, (800) 833-8272 (TDD)
Fax:  (202) 776-0414
E-mail:  atfscp@aol.com

For individualized technical assistance on AT funding issues,
contact: (800) 827-0093 (voice) or (800) 833-8272 (TDD)