Volume II Issue 4
March/April 1997
Copyright 1997, Neighborhood Legal Services, Inc.
Newsletter of the Assistive
Technology Advocay Project
A Project of Neighborhood Legal Services, Inc · 295 Main Street, Room 495 · Buffalo NY
14203
(716) 847-0650 · (716) 847-0227 FAX · (716) 847-1322TDD · NLS01@sprynet.com ·
http://www.nls.org
Charities; Don't Overlook them as a Funding Source for AT
INTRODUCTION
Since its beginning, in October 1995, this newsletter has focused on funding sources for assistive technology (AT) that come from either state or federal law. Approval of funding from these sources is generally a matter of regulation or policy. In some cases, the battles are won through administrative hearing decisions (see box, page 67) or by court rulings (see box, page 70). The key to accessing these funding sources is in verifying a specific need for AT by establishing that it is medically, educationally, or vocationally necessary.
Because these funding sources are accountable to the public purse, limitations are often placed on the amount of goods and services a person can receive. When the regulations or policy do not specify limitations on coverage, agencies often rely on extremely narrow interpretations of their regulations to deny funding. For these reasons, persons may run a gauntlet of obstacles keeping them from receiving the AT they need. When time and medical intervention are of the essence, looking for help from other sources may be the only way to go.
Unlike funding sources created by law, charities have no legal obligation to assist people with disabilities. They establish their own criteria and there is rarely any appeal or review process to challenge a denial. However, it may be easier getting help from a charity because: there are many of them at local, state, and national levels; their decision makers may believe that they have a moral commitment to assist a person; their eligibility criteria may be liberal; and they can bend their rules, if they want.
Charities receive their funds from private donations. Therefore, they should be considered a payer of last resort and never used to replace the obligations of state or federal funding sources. Rather, they should be used only when there are no other options available or as a way to offset the cost of equipment so that strategically an application to a third-party payer, like Medicaid, is more acceptable.
The AT Advocacy Project, which produces this newsletter, will continue to invest time to identify charities that are available to assist persons with disabilities, including national, state and local organizations. With the assistance of others, including our readers, we will maintain a clearinghouse of information about charities, with information about who they will help and under what circumstances. Please send us any information you may have concerning charities that may help persons with disabilities obtain AT devices such as wheelchairs, computers, access ramps, vehicle modifications or other items.
A charity may be a source for full payment, partial payment or payment for an accessory not otherwise approvable through a public agency. They may also be available as an equipment loaning agency. Loan closets work on a borrowing principal and the goods must be returned when they are no longer needed. Loan closets may be physically located with a not-for-profit agency or with an equipment vendor that has the necessary technicians and equipment to evaluate the functional safety and sanitary conditions of any equipment before it is recycled. Equipment donations made to loan closets may be tax exempt charitable contributions.
There are a growing number of equipment exchange programs, offering opportunities to obtain used AT devices that will be either donated or sold at a very low cost. For example, the New York State Office of Advocate for Persons with Disabilities, through its TRAID Project, operates the TRAID-IN project to link equipment with prospective users. For more information about this project, you can call TRAID at 800-522-4369 (toll free, voice and TDD).
As we try to find funds for those who need AT, it is not uncommon for us to stumble upon entities that we never thought of as a funding source. For instance, anyone who has ever worked with Medicaid knows that Medicaid will not give prior approval for experimental goods or services. Under most circumstances, Medicaid would not be considered the proper funding source for an experimental device. However, the group funding the research study for the experimental good or service is often looking for subjects for the study. Frequently, this is a research project at a university. By asking a few questions, you may be able to get an individual into the study, enabling him or her to receive the goods and services at no cost.
We do not think of big business as a charity, but they may provide funding for AT, either as a public service or as an incentive for persons with disabilities to purchase their product. NYNEX, IBM and General Motors, to name a few, all have programs that assist in acquiring AT. Again, like charitable organizations, those businesses which offer a program set their disability-related and financial criteria. Obviously, these businesses offer programs that reflect their business interest. Therefore, IBM offers a program that relates to computer technology, whereas NYNEX offers phone communication services and devices.
Pages 68 and 69 contain a chart with information about some of the more important national charities. Since many of them, such as the Multiple Sclerosis Society or the Lions Club, have local or regional chapters, we have left the last column blank to allow you to fill in local chapter information. Keep in mind that this chart represents only a small sample of the national charities available to pay for AT in particular cases. Many other national and local charities should be available. Based on information available as this went to press, we have listed at the bottom of the chart information on assistance available through General Motors. This chart will be expanded as we find more information and we will include the updated chart on our Web Page.
FINAL VOCATIONAL REHABILITATION
REGULATIONS
APPEAR IN FEDERAL REGISTER
New vocational rehabilitation (VR) regulations appeared in the Federal Register on February 11, 1997 and became effective on March 13, 1997. 34 CFR Part 361, 62 Fed. Reg. 6308-62. Believe it or not, these regulations were issued to implement 1992 amendments to the federal Rehabilitation Act. The Rehabilitation Act is up for re-authorization during the current term of Congress.
These regulations govern New York's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) and the Commission for the Blind and Visually Handicapped (CBVH). Although most of the basic rules remain unchanged, there are some noteworthy changes which have application to persons seeking AT. [Our March 1996 issue of IMPACT explained how AT can be funded through either VESID or CBVH.]
The new regulations have added definitions for "assistive technology device" and "assistive technology service," using terminology that already appears in the Technology Related Assistance for Individuals with Disabilities Act (known as the Tech Act). These terms are then included under an expanded definition of Rehabilitation Technology. 34 CFR 361.5(b)(6), (7) and (39). In developing and implementing an Individual Written Rehabilitation Plan, VESID or CBVH must consider a person's need for rehabilitation technology and approve funding for what is needed to achieve a particular goal.
Transportation is defined in the new regulations as "travel and related expenses that are necessary to enable an applicant or eligible individual to participate in a vocational rehabilitation service." 34 CFR 361.5(b)(49). A note, following the regulation, states that "[t]he purchase and repair of vehicles, including vans" is an example of an expense that would meet the definition of transportation. Under this provision, it would appear that VESID will have the obligation to purchase a vehicle in cases where it is the most cost-efficient means of transportation to a vocational or educational program. The same note states that modifications to the vehicle would not be a transportation expense, but would fall within the definition of rehabilitation technology.
The new regulations reaffirm the obligation of the person with a disability to seek comparable benefits, i.e., other sources of payment, before turning to VESID or CBVH for payment. The regulations make it clear, however, that this provision only applies to benefits that are available, without delay, at the time needed. If the benefits are available from another source, but not at the time needed, VESID or CBVH would be required to provide payment for the services until they become available from the other source. The regulations also reaffirm the principle that rehabilitation technology is exempt from the comparable benefit requirement, meaning that the consumer of VESID or CBVH services is not required to seek out the alternate source of payment first. 34 CFR 361.53.
Internet users can access the full text of these regulations and other materials which appear in the Federal Register at the following Web site: www.access.gpo.gov/su_docs/aces/aces140.html
TAX TIPS FOR INDIVIDUALS
OR FAMILIES
WHO MUST PURCHASE
ASSISTIVE TECHNOLOGY
The Flexible Spending Account
Under the authority of section 125 of the Internal Revenue Code, an employer may establish what is sometimes known as a Flexible Spending Account (FSA). It may also be described as part of an employer's "cafeteria plan" for health care coverage. If the employer has established an FSA, employees may obtain a very significant tax break if they spend FSA funds to purchase AT devices such as wheelchairs, hearing aids, a TDD phone for the deaf or many other items. Any employer may institute an FSA, but the employer is not required to do so. This short article explains how an FSA for unreimbursed medical expenses will allow an employee to realize a tax break when using FSA money to purchase a wheelchair.
Here is how the FSA could be used in a specific case. Mr. Jones works for a company which allows employees to designate up to $5,200 per year in an FSA. Any amount put into the FSA by Mr. Jones is not considered taxable income for federal or state tax purposes, nor is it considered income for Social Security purposes. With an FSA, Mr. Jones can re-direct dollars he already intends to spend on medical expenses and pay these expenses on a "before tax" basis.
Mr. Jones has a 12 year old daughter, Sharon, who needs a custom wheelchair that will cost $3,900. His group insurance plan will not pay for wheelchairs and Sharon is not eligible for regular Medicaid benefits or any Medicaid waiver benefits. We will assume that Mr. Jones earns $26,000 per year or $1,000 every two weeks in gross wages.
Mr. Jones decides in November 1997 that he will purchase the $3,900 wheelchair for Sharon during the 1998 tax year. He designates that $3,900 will be put into his 1998 FSA for that purpose. His employer deducts $150 from his paycheck every two weeks and that money is put into the FSA account. Mr. Jones orders the wheelchair in June 1998 and presents the invoice to the company that administers his employer's FSA plan. The company sends Mr. Jones a check for $3,900 and he pays off the wheelchair vendor.
How did Mr. Jones benefit from this? Without the benefit of an FSA account, Mr. Jones has taxable income of $1,000 every two weeks. Federal and state income taxes and Social Security taxes are withheld based on that amount. By putting $150 into the FSA account every two weeks, his taxable income is reduced to $850 every two weeks and less is withheld from his check in taxes.
What are the actual tax savings? That will depend on each individual situation. Let's assume Mr. Jones does not itemize his medical expenses when he does taxes. Let's also assume that his combined tax rate, for state and federal income taxes and Social Security taxes, would be 20 percent. This means he would ordinarily pay combined taxes of $780 on the $3,900 in question. By using the FSA to pay for the wheelchair, he would save $780. If Mr. Jones is in a higher tax bracket and his combined tax rate is 30 percent, his savings would be $1,170. It is important to emphasize that he will realize these savings even if he does not itemize medical expenses on his tax return. (Note: If he uses the FSA approach, he cannot separately itemize the same expense on his taxes. He can itemize any remaining medical expense as permitted by tax law.)
There are two important principles that govern the FSA. First, the employee must declare, before the beginning of the tax year, how much money is to go into the FSA account for unreimbursed medical bills. The money put into the FSA is only returned to the employee based on verified bills or payments. The employee needs to carefully assess medical needs for the upcoming year, as the fund will not return money unless it is allocated for medical expenses. Second, it is important to promptly submit bills for expenses incurred at the end of the year, as the FSA plan will probably not allow reimbursement beyond a short grace period into the next tax year.
This article does not attempt to fully explain all the rules governing the Flexible Spending Plan or some of the other expenses that can be covered through the FSA. Persons wishing more information about how the FSA can benefit them will have to follow up with the employer, the company which administers the FSA or with a tax advisor. In some cases, the employer may need to be encouraged to offer the FSA to its employees.
NEW ADDITIONS TO OUR WEB PAGE
www.nls.org
Check out our Web Page for a feature article on SSI's Plan for Achieving Self Support (PASS). The article was co-authored by attorneys Jim Sheldon of the AT Advocacy Project and Ed Lopez of the Greater Upstate Law Project in Rochester. In standard text form, the article is 50 pages long and includes an example of a completed PASS using the new Social Security Administration (SSA) form. This article was first published in the March-April 1997 issue of Clearinghouse Review, a publication serving Legal Services and Protection and Advocacy advocates nationwide.
Those familiar with the PASS know that it is a significant funding source for AT and other items related to a vocational goal. [See feature article in February 1996 and update in June 1996 issues of IMPACT.] The article, which contains a detailed Table of Contents, should be obtained as a reference by anyone involved in proposing, amending or seeking to extend a PASS under new criteria issued by SSA in 1996.
To find the PASS on our Web Page, go to the Social Security and SSI Work Incentives sub-page and the PASS article will be available to you. If you do not have access to the Internet and would like a copy of this article, call Vivian Cosentino, secretary for the AT Advocacy Project [716-847-0655 ext. 271] or fax your request to her [716-847-0227].
Administrative Hearings
Matter of K.S. (FH# 2532559Y):
HATS OFF to David Chrispell for his success as an advocate. Dave knows that people with disabilities need qualified advocates to assist them in getting AT, so he was the first attorney to jump on board our pro-bono wagon as a volunteer attorney. Dave represented 45-year old K.S., who has spina bifida. He effectively argued that the wheelchair she requested was both medically necessary and cost effective.
One recurring problem with Medicaid hearing decisions is that cases are often remanded or sent back for a second determination to see if a less costly piece of equipment will meet the person's needs. These remand orders leave the person waiting many months as the case works its way through the process.
Dave wisely met this issue head on. He presented evidence showing that a newer model of the same wheelchair had just become available for $800 less. Based on this evidence, the hearing decision orders that Medicaid must approve either the model originally requested or the newer, less expensive model of the same wheelchair. GREAT WORK DAVE!
To obtain a copy of the K.S. decision, call the AT Advocacy Project
CHARITY CRITERA
Organization
Criteria
Services Provided
AT Provided
Payment Policy
Dues
Contact
Organization
Muscular Dystrophy Association (MDA)
3300 East Sunrise Dr.
http://www.mdausa.org
Tucson, AZ 85718-3208
ph#: (520) 529-2000
fax#: (520) 529-5300
e-mail: 74431.2513@ compuserve.c
Criteria
Diagnosis of MD or related condition
Services Provided
·Worldwide re-search grants
·Affiliated hospitals' MD clinics
·Summer camps
·Education
AT Provided
·Augments purchase of power and manual wheelchairs up
to $1700
·Assistance with reasonable repair cost (annually) $300
·Recycled equipment (to the extent feasible)
Payment Policy
·Payment only for those services
not covered by private or public insurance
or other community resources
·Only associated staff can authorize
vendor payment
Dues
None, but you must join MDA
Contact
Local Chapter
National Multiple Sclerosis Society (MS)
733 Third Ave.
New York, NY 10017-3288
ph#: 1-800-FIGHTMS
(212) 986-3240
fax#: (212) 986-7981
e-mail: natl@nmss.org
http://www.mss.org
Criteria
Diagnosis of MS
Services Provided
·Research grants & fellowships
·Affiliated clinics & hospitals
·Support
·Information
·Education
AT Provided
Consumer may be able to receive
up to $300 annually
Payment Policy
·Needs test
·Payment for only those services not provided by public or
private insurance
or other community resources
·Contingent upon availability of funds
Dues
·$25, but waived for MS
patients
·Must be registered through the local chapter
* Not affiliated with MS
Association NJ
Contact
Local Chapter
1- 800 - FIGHTMS
The Shriners Hospitals for
Children
2900 Rocky Point Drive
Tampa, FL 33607
ph#: (813) 281-0300
fax#: (813) 281-8496
U.S. (800) 237-5055
Canada (800) 361-7256
e-mail: mandres@worldfax.com
http://shrinershq.org
Criteria
·Under 18
·Orthopedic, bones muscles, joints, burns
·Must be a patient of the hospital
·Review by hospital's chief of staff for feasible treatment & if treatment elsewhere
would place a financial burden on family
Services Provided
·Research
·Major teaching centers
·Family centered care
Parental stay for one
Scholastic Education
Rehab therapy
Social reintegration therapy
AT Provided
·Based on diagnosis
·Made on the premises
·Recycles equipment
Payment Policy
·Admission is based on medical & financial need
·No charge for treament or services
·All applications are reviewed
on a case-by-case basis
Dues
NA
Contact
Use the 800# or contact your local temple
St. Jude's Children's Hospital
332 N. Lauderdale
Memphis, TN 38105
ph#: (901) 495-3306
fax#: (901) 495-3103
e-mail: deidre.malone@stjude.org
http://www.stjude.org
Criteria
·Children under 18
·Must be patient of St. Jude's
Services Provided
·Research ·Education
·Affiliated with hospitals in Canada Louisianna, Illinois & Tennessee
·Family Centered Care
Parental stay for 1
Food & Meals
Transportation
·Child Life Program-Educ
Child Life Specialists for Assessment, Learning
Center
Two Public School Teachers
AT Provided
As needed, based on diagnosis
Payment Policy
No charge to family for treatment or services
Dues
NA
Contact
Contact St. Jude's directly
Lions Clubs International
300 22nd Street
Oakbrook, IL. 60521-8842
ph#: (630) 571-5466
fax#: (630) 571-8890
http://www.lionsclub.org
Criteria
Services Provided
Vary from chapter to chapter
·SIGHTFIRST:
(eyebanks, surgery, eyeglass collection)
·Camps for disabled children
·Grants for: humanitarian services disaster relief, vocational assistance
AT Provided
·Eye glass collection
·Hearing impairment Assistance
·Medical Equipment
·Loan Closets
Payment Policy
Generally there is no needs based test, but some local
chapters may be working with organizations requiring a
financial review. Check your local chapter
Dues
NA
Contact
Contact your local chapter
Spina Bifida Association of
America
4590 MacArthur Blvd. N.W.
Suite 250
Washington DC 20007-4226
ph#: (202) 944-3285
fax#: (202) 944-3295
e-mail spinabifda@aol.com
http://www.infohiway
Criteria
Diagnosed with spina bifida
Services Provided
·Information
·Support
·Medical Equipment Fund
·Educational Scholarship
AT Provided
·Brace & Equipment Fund&emdash; up to $300 annually
·Educational Scholarship Fund&emdash; up to $500 annually
Payment Policy
Use public or private insurance first
Dues
$20 annually for national & local chapters $10 annually for local only
Contact
Contact your local chapter
GM Mobility Assistance Center*
PO Box 9011
Detroit MI 48202
ph#: (800) 323-9935
fax#: (313) 974-4383
TTY: (800) 833-9935
Criteria
·Hearing loss as evidenced by hearing threshold
audio-logical testing results of 30 dB
·Physical disability
Services Provided
·Free Roadside assistance
·GMAC financing
·Information
AT Provided
·Vehicle Modifications
·Deaf or hard-of-hearing alterting devices
Payment Policy
Up to $1000 rebate to to customer after claim is
processed
Dues
NA
Contact
Nearest Chevrolet/ GEO, Pontiac, Olds, Buick, Cadillac, and GMC dealers
* Ford has a similar program. Contact your local Ford dealer for information.
AT COURT WATCH
AT Advocacy Project Wins Two
Medicaid
Appeals in New York's Appellate Division
Bill Mastroleo, an AT Advocacy Project attorney, recently won two separate Medicaid appeals to obtain specialized wheelchairs for his clients.
In Matter of Gartz v. Wing, NY Appellate Division, 4th Dept. (Feb. 7, 1997), he successfully appealed a fair hearing decision which had affirmed Medicaid's denial of funding for a customized manual wheelchair. What makes this case unique is that his 23-year old client already had a motorized wheelchair, but established that it could not be used to go to her eye doctor, an orthopedic clinic, to access a bathroom at her work site or to visit her family. The court cited, with approval, Dobson v. Perales, 175 A.D.2d 628 (4th Dept., N.Y. 1991) (handled by AT Advocacy Project attorney, Jim Sheldon), where the court also reversed a fair hearing decision which denied funding for a customized manual wheelchair for a woman who already had a motorized wheelchair.
In Matter of Johnson v. Wing, NY Appellate Division, 4th Dept. (March 14, 1997), Bill successfully appealed a fair hearing decision which had affirmed Medicaid's denial of a funding request for a power wheelchair. The court found that the wheelchair's tilt and space and elevating leg rest features are medically necessary to promote circulation and prevent further incidents of decubitus (i.e., pressure sores). The court cited, with approval, both the Gartz and Dobson decisions.
To obtain a copy of either decision or copies of our supporting briefs, contact the AT Advocacy Project.
Welcome to Neighborhood Legal Services' data bank!
Do you have decisions of interest relating to assistive technology in the following areas? Medicaid, Medicare, Vocational Rehab, VA, Special Education, Physically Handicapped Children's Program, Private Insurance, etc.
Other advocates can benefit from your experience. If you have fair hearing decisions or are involved in or have completed litigation in these areas, we want to know about it.
Please send information to:
FAX: (716)
847-0226
Attn.: Marge Gustas
Handsnet: HN0627
Neighborhood Legal Services
e-mail: nls01@sprynet.com
Ellicott Square Building
Web Site: www.nls.org
295 Main Street Room 495
Buffalo, NY 14203
(716) 847-0650
(716) 847-1322 TDD