The Disabilities Law Program (“DLP”) of the Community Legal Aid Society, Inc. provides advocacy services to promote the acquisition, utilization, and maintenance of assistive technology (“AT”) devices and services by persons with disabilities consistent with the Assistive Technology Act of 2004. The Act is codified at 29 U.S.C. §3001 et seq.

The AT Act contemplates that the DLP will engage in a broad array of advocacy activities under the PAAT grant. See, e.g., 29 U.S.C. §§3001(b), 3002(6)(8)(12), and 3004(a). Consistent with that authorization, the DLP intends to address consumer needs through the following: 1) information and referral; 2) self-advocacy and substantive AT training through seminars and articles; 3) formal representation to secure both systemic change and individual access to AT devices and services; 4) coordination of advocacy with Delaware’s lead agency (“DATI”) and other DLP programs; and 5) education of policymakers to promote enhanced access to AT in legislative, regulatory, policy-making, and budgetary contexts.

Individual eligibility for PAAT services is limited to persons with disabilities, defined in the AT Act [29 U.S.C. §3002(10)] as follows:

The term “individual with disability” means any individual –

• who has a disability; and
• who is or would be enabled by an assistive technology device or assistive technology service to minimize deterioration in functioning, to maintain a level of functioning, or to achieve a greater level of functioning in any major life activity.

The AT Act [29 U.S.C. §3002(9)] defines “disability” as follows:

The term “disability” means a condition of an individual that is considered to be a disability or handicap for the purposes of any Federal law other than this chapter or for the purposes of the law of the State in which the individual resides.

The DLP identifies the priorities, outcome measures, and rationale for the PAAT during FY 08 as follows:

I. EDUCATION

       GOAL: The PAAT will secure timely access to appropriate AT for students with disabilities.

      SYSTEMIC ADVOCACY OBJECTIVE:

• A. Collaborate with the DATI and State councils to promote legislative, regulatory, and policy standards which facilitate access to appropriate AT by students with disabilities enrolled in public and private schools.

      INDIVIDUAL ADVOCACY OBJECTIVES:

• A. Provide legal assistance to students experiencing barriers to access to appropriate, important AT devices and services at the preschool, primary, and secondary education levels.
• B. Provide legal assistance to students experiencing barriers to access to appropriate, important AT devices and services at the post-secondary education level.

      OUTCOME MEASURES:

• A. As a result of PAAT intervention, a minimum of 3 laws, regulations, or policies adversely affecting student access to AT will be eliminated or improved.
• B. As a result of PAAT intervention, a minimum of 5 students will secure access to appropriate, important AT devices and services.

      RATIONALE:

The Delaware Department of Education adopted extensive revisions to its IDEA-B regulations in 2007 whose impact on AT is untested. The revisions include new references to provision of AT for home use, routine checking of surgically implanted medical devices, and access to accessible materials [14 DE Admin Code 923, §§5.0, 13.0, and 72]. Moreover, the U.S. Department of Education issued proposed IDEA-C regulations in May, 2007 [72 Fed Reg. 26455 (May 9, 2007)] which may eventually prompt changes in AT-related State law, regulation, and policy. These recent initiatives will predictably result in DLP involvement in legislative, regulatory, and policy development and enforcement.

Individual legal assistance is contemplated for children seeking the following: 1) AT-related assessments; 2) inclusion of AT in IEPs/IFSPs; and 3) remedies for default in provision of IEP/IFSP-listed AT. At the post-secondary level, students may require AT supports and accommodations to provide equal educational opportunity.

II. MEDICAID

      GOAL: The PAAT will secure improved access to AT by Medicaid beneficiaries through promotion of comprehensive Medicaid coverage of AT and compliance with due process standards.

      SYSTEMIC ADVOCACY OBJECTIVE:

• A. Collaborate with the DATI and State councils to promote legislative, regulatory, policy, and funding initiatives which facilitate access to appropriate AT by Medicaid beneficiaries.

      INDIVIDUAL ADVOCACY OBJECTIVE:

• B. Provide legal assistance to Medicaid beneficiaries denied coverage of appropriate, important AT devices and services.

      OUTCOME MEASURES:

• A. As a result of PAAT intervention, a minimum of 5 laws, regulations, policies, Medicaid waivers, and budgetary initiatives affecting access to AT will be adopted or improved.
• B. As a result of PAAT intervention, a minimum of 5 Medicaid beneficiaries will secure access to appropriate, important AT devices and services.

      RATIONALE:

The Medicaid program has historically been a primary source of a broad range of AT devices and services. However, burgeoning Medicaid costs have prompted Federal and State initiatives and proposals to curtail program and services eligibility. PAAT advocacy will include the following: 1) deterrence of discretionary restrictions on access to AT influenced by changes in Federal or State law or funding; 2) support for implementation of Medicaid Buy-in and Money Follows the Person initiatives included in the FY 08 State budget; 3) promotion of inclusion of AT supports (including environmental modifications) in State Medicaid waivers; 4) promotion of improved access to durable medical equipment (DME) consistent with CMS State Medicaid Director Policy Letter (September 4, 1998) and conforming caselaw; 5) improvements in procedural safeguards (e.g. Medicaid notices and appeal policies). For example, beneficiaries whose pharmacy refuses to fill an AT-related prescription (e.g. for inhaler or nebulizer solution) do not currently receive a proper denial notice with appeal rights. Medicaid waivers, in particular, are an important context of anticipated advocacy. State has multiple waivers which are pending submission to CMS, (e.g. DSAAPD acquired brain injury and DDDS family support). The latter waiver is expected to offer “consolidated developmental services” which is defined as including environmental modifications. The PAAT also envisions collaboration with multiple agencies to assess prospects for development of a children’s acquired brain injury waiver to include AT.

Individual assistance is contemplated for beneficiaries unreasonably denied access to AT devices or services. In particular, Medicaid MCOs have manifested a constrictive approach to approval of AT for both children and adults. This results in resort to both internal appeals and administrative hearings.

III. OTHER STATE AGENCY AT SOURCES

      GOAL: The PAAT will secure improved access to AT through government agencies and entitlement programs in contexts other than education and Medicaid.

      SYSTEMIC OBJECTIVE:

• A. Collaborate with the DATI and State councils to promote legislative, regulatory, policy, and funding initiatives which facilitate access to appropriate AT by persons with disabilities in contexts other than education and Medicaid.

      INDIVIDUAL OBJECTIVE:

• B. Provide legal assistance to persons with disabilities experiencing barriers to access to appropriate, important AT devices and services in contexts other than education and Medicaid.

• A. As a result of PAAT intervention, a minimum of 5 non-Federal laws, regulations, policies, and funding initiatives affecting access to AT will be adopted or improved.
• B. As a result of PAAT intervention, a minimum of 5 persons with disabilities will secure access to appropriate, important AT devices and services.

      RATIONALE:

Apart from the Medicaid and education contexts, there are several other government sources of AT, including the Medicare program, Division of Vocational Rehabilitation, Division of Public Health, Division of Developmental Disabilities Services, and Division of Aging and Adults with Physical Disabilities. For example, DSAAPD maintains a fund for environmental modifications and administers an attendant services program which includes AT support services. DVR offers funding to cover the costs of vocationally-related vehicle modifications. DPH maintains a hearing aid loan program for children which was reauthorized by H.B. No. 178 in July 2007. DDDS clients often have AT related to mobility, communication, or implementation of behavioral plans. State program eligibility standards and budgets affect constituent access to AT.

The PAAT anticipates that State agencies (e.g. Insurance Department) will pursue legislation affecting AT in 2008. For example, legislation is pending to expand CHIP financial eligibility (H.B. No. 128) and create a State-subsidized insurance pool (S.B. No. 6; H.R. No. 38) The PAAT also envisions preparation of legislation to require State-regulated insureers to cover hearing aids and other hearing-related AT. Finally, the PAAT anticipates preparation of draft uniform statewide accessibility code legislation.

Coordinated systemic planning to improve community-based supports is occurring within the Governor’s Commission on Community Alternatives for Individuals with Disabilities established by Executive Order 50 (September 29, 2003). The Commission issued a report on July 17, 2007 which includes AT-related recommendations, including State adoption of home modification tax credits and endorsement of more accessible road signage. The PAAT contemplates facilitating implementation of these recommendations and continuation of input to the Commission on the important role of AT in supporting individuals in the community.

Finally, individuals may be aggrieved by denials of eligibility for AT within discrete public programs. This results in requests for PAAT advocacy to overturn adverse decisions.

IV. AT WARRANTIES

      GOAL: The PAAT will promote implementation and enforcement of the DLP-authored AT “lemon law” (H.B. No. 433) adopted June 29, 2004.

      INDIVIDUAL ADVOCACY OBJECTIVE:

• Provide legal assistance to aggrieved buyers or lessees of defective or non-conforming AT covered by Delaware’s AT “lemon law”.

      OUTCOME MEASURE:

As a result of PAAT intervention, 3 persons with disabilities will benefit from enforcement of Delaware’s AT “lemon law”.

      RATIONALE:

In 2004, Delaware adopted comprehensive PAAT-authored legislation providing warranty protections to purchasers and lessees of AT. However, unless enforced, the legislation may have limited effect. The PAAT anticipates provision of legal assistance to aggrieved individuals with disabilities invoking the protections in the new law.

V. AT FINANCING

      GOAL: The PAAT will support implementation of the Delaware AT Low Interest Loan and Telework Equipment Loan programs.

      SYSTEMIC OBJECTIVE:

• Collaborate with the DATI and Division of Vocational Rehabilitation (“DVR”) to refine operational policies and promote implementation of these programs.

      OUTCOME MEASURE:

Operational policies will be refined and multiple loans will be approved in FY 09.

      RATIONALE:

The PAAT collaborated with the DATI, DVR, and other agencies to facilitate the initial funding and establishment of these programs. The purpose of the programs is to ensure the availability of low cost financing for AT devices, including those not commonly covered by public and private insurance (e.g. ramps; vehicle modifications). The PAAT continues to provide technical assistance through membership in the DATI Loan Program Advisory Board.

VI. TRAINING; SELF ADVOCACY

      GOAL: The PAAT will offer technical assistance and training to individuals and groups to foster consumer knowledge of rights and strategies to access AT.

      INDIVIDUAL ADVOCACY OBJECTIVE:

• A. The PAAT will provide information, referral, and brief technical assistance to soliciting individuals and agencies to facilitate access to AT.

      SYSTEMIC ADVOCACY OBJECTIVE:

• B. The PAAT will offer training on AT-related topics through seminars; training events (including LIFE conference); support for demonstration universal design home to be completed in FY 07; website information; and articles (including PAAT-authored articles regularly prepared for the DATI newsletter).

• A.The PAAT will provide information, referral, and brief technical assistance on AT-related topics to a minimum of 15 soliciting individuals and agencies.
• B. Four thousand persons will receive training in AT through articles, seminars, web-based materials, and other educational activities.

      RATIONALE:

The PAAT can leverage resources and benefit large numbers of constituents through training and technical assistance activities. Such activities also “empower” consumers who can engage in self-advocacy based on knowledge of AT-related rights and access strategies.

Recognizing that the demand for assistance may exceed available resources, the following factors will be considered in determining the level and type of services which will be offered to a group or individual:

• a. potential impact on client;
• b. merits of case (both factually and legally);
• c. realistic alternate sources for referral and assistance (e.g., Delaware Volunteer Legal Services; Client Assistance Program);
• d. applicant’s ability to self-advocate; and
• e. potential impact on other constituents or systems.

All five of the above factors should be considered for each case being evaluated for direct services.