Volume I Issue 10 July/August 1996
WHERE TO FIND AT
CASES AND ISSUES
THEY MAY BE RIGHT IN FRONT OF YOU
Copyright 1996, Neighborhood Legal Services, Inc.
INTRODUCTION
Imagine that you stumble upon an interesting cluster of rocks. You pick up several and examine them closely noticing their distinct size, shape and color. Later, you discuss your find with a friend who knows something about rare gems. He mentions a rare gem that is found only at the core of rocks resembling yours and explains that the gem has qualities that will benefit many people. How would you feel at this moment? Most people would be excited, but irritated that they were ignorant of what lay right before their eyes.
Most of us do not look for assistive technology (AT) issues. Rather, we stumble upon them. And, like the person who finds the rocks, we often do not know what we have stumbled upon.
Our lead article seeks to help readers develop a sensitivity to AT issues -- to help you identify them when they are not clearly presented. We discuss where these issues are likely to appear and where they hide. Hopefully, you will find some interesting gems hidden from your view!
AT ISSUES: SOME MAY BE RIGHT IN FRONT OF YOU
We target our newsletter to persons and agencies most likely to have contact with individuals who may need AT devices. Armed with insights gained by reading IMPACT, we hope you will identify when the need for AT exists and advocate for the equipment or device through a funding source we have discussed. If necessary, you will call the AT Advocacy Project to help you locate an attorney or advocate to assist the person in question. Many of you would like to do this, but claim you never see AT issues.
Many advocates at Neighborhood Legal Services (NLS) would say the same thing. We are an office dedicated, primarily, to helping people with welfare, housing or family disputes. Those who specialize in disability law typically get involved in SSI, special education or other issues unrelated to AT. The individuals and families they see do not bring AT issues to their attention, so our staff members assume they do not exist. Over time that mind set is changing at NLS.
When do NLS advocates spot these issues? A man who seeks our help to prevent an eviction is pushed into the office in a manually-operated wheelchair. An elderly woman who faces a utility shut-off for non payment tells of her adult daughter who needs that electricity to run a ventilator. A young woman who is getting divorced states that the child support payments she receives are too low. We then learn that she needs special computer equipment for a son who is blind. In each case the AT issue is secondary to a traditional housing, utility or family law problem.
In each instance, we assist with the presenting problem and also assist with the AT issue. In the first case, we encourage the man to seek Medicaid approval for an electric wheelchair and come back to us if it is denied. In the second case, we arrange for the utility company to continue service under special rules which apply to persons with life-sustaining equipment. In the last case, we point out that the special education system may be required to purchase the computer equipment. With a probing inquiry, we learn that even more AT issues are present in each case. Unfortunately, many advocates have a narrow view of their job and would not have seen these AT issues or potential solutions.
Like our advocates, you also come in contact with many people each day. Depending on your work, you may be alerted to issues by case managers, social workers, discharge planners, therapists, doctors, equipment vendors, other advocates, persons with disabilities or their family members. Frequently, the AT issue is presented as a secondary problem or not presented at all.
WHERE DO POTENTIAL ISSUES HIDE?
Like the rare gems hidden within the rocks, not all issues announce their presence. Sometimes they lie beneath a larger problem. For example, Betty, a 39 year old woman who once did architectural drafting applied for Social Security Disability (SSD) benefits because her arthritis did not allow her to do that work any more. The SSD claim was denied and we represented her at a hearing. After we won the appeal, Betty explained that she would like to return to school and wondered if she might be able to do something with computers despite the arthritis.
We referred Betty to the Office of Vocational and Educational Services for Individuals With Disabilities (VESID). VESID provided her with an AT assessment, found her a good candidate for computer assisted drafting and agreed to pay for her education to pursue that goal. VESID also agreed to pay for hand controls on her car because she is no longer able to operate the pedals. VESID would not pay for a personal computer for home use, claiming that Betty can use her college's computer lab. This last issue was referred to an advocate at the regional Client Assistance Program (CAP), which is funded to assist people in disputes with VESID.
We also advised Betty that she may be able to use SSI's Plan for Achieving Self Support (PASS) to pay for those items which VESID cannot fund. The PASS may help Betty pay for a newer vehicle if the present car is not suitable; pay for tuition costs that go beyond VESID's limits; or purchase computer equipment not available through VESID.
Are we done advising Betty of potential AT funding sources that will allow her to return to work and lead a life of independence? Our inquiring advocate also learns that Betty does not have the strength in her legs to go from class to class on a college campus. The advocate advises her that Medicaid should be able to pay for a wheelchair, even if she is able to walk short distances without assistance. Finally, the advocate advises Betty that a prospective employer might be required to provide special equipment to her as a reasonable accommodation under the Americans With Disabilities Act.
What if Betty came to you? Would you spot the AT issues and give her appropriate advice and referrals? If a funding source balked at paying for a needed item, would you advocate for her? Would you refer her to the AT Advocacy Project or to a local advocacy office for assistance? Betty may not make it into our office, but she is likely to see you. You must make it your business to identify whether AT is an issue and take the appropriate steps to assist her.
WHEN DOES THE NEED FOR AT BECOME A LEGAL ISSUE?
Most AT issues can be addressed with information, a referral or some brief intervention by you. In some cases, however, you are presented with a legal issue which is ripe for some formal advocacy strategy or appeal. Generally, you need to be sensitive to any action or lack of action, on the part of a funding source, that denies or stalls the provision of the requested equipment. Also, you should be concerned any time a funding source cannot provide legal authority for its action.
Consider these guidelines to determine when you have a ripe legal issue:
1) your patient, client or consumer has a problem affecting him now, not a hypothetical future problem;
2) the issue is governed by a statute, regulation or agency policy;
3) your patient, client or consumer could benefit directly from some sort of formal advocacy effort.
CONCLUSION
The persons with disabilities that you serve as patients, clients or consumers have complex lives. Often, the problems they present to us can be challenging enough without digging for the AT issues that lie beneath the surface. Digging for AT issues, however, should be part of the way we conduct business.
AT IN THE COURTS
* Ralabate v. Wing, 93-CV-0035E(H) (W.D.N.Y. 6/26/96): James M. Morrissey of Neighborhood Legal Services in Buffalo represented the plaintiffs, dually entitled for both Medicaid and Medicare, who sought Medicaid funding for electric wheelchairs. The plaintiffs could not obtain the wheelchairs because Medicaid would only pay an amount which would bring the purchase price up to the amount approved by Medicare through its fiscal intermediary (a regional insurance carrier). Historically, this amount was much less than the selling price of the wheelchairs.
The court ruled that the policies and practices involved do not violate the federal Medicaid laws and regulations cited by plaintiffs. We decided not to appeal this case to the U.S. Court of Appeals for the Second Circuit. Our decision not to appeal was based, in part, on the fact that all of our named plaintiffs have obtained the wheelchairs they were seeking. According to some equipment vendors, it is no longer as difficult to obtain reasonable wheelchair reimbursement rates for persons who are eligible for both Medicaid and Medicare.
Contact the AT Advocacy Project if you want a copy of the Ralabate decision.
ADMINISTRATIVE HEARINGS
* Matter of Helen S. (FH# 2397633Y): Helen's diagnosis is profound retardation, spastic quadriparesis with predominantly left spastic manifestations, severe scoliosis and compensatory windswept deformity of the hips. She lives in a skilled nursing facility. Her doctor prescribed a custom wheelchair with a one-arm drive. The State Department of Health (DOH) denied Medicaid prior approval because, " [there are] less costly alternatives available to meet [Helen's] medical needs." DOH also took the position that the nursing home was already funded by Medicaid to meet all of Helen's needs and that this wheelchair should be provided by the facility, if it is funded at all.
Marge Gustas of the AT Advocacy Project represented Helen at a fair hearing. The hearing decision reversed DOH's denial and awarded funding. The decision reasoned that the special features of this wheelchair made it a customized item rather than a stock item that a nursing home would be expected to supply to its residents.
For copies of this decision, contact Marge Gustas. Identify this hearing as Helen S., FH#2397633Y, decision date July 5, 1996.