IMPACT
Volume III Issue 1
September/October 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
Supported by NYS Office of Advocate for Persons with Disabilities,TRAID
Project, a Project
Funded by The National Institute on Disability and Rehabilitation Research, U.S.
Department of Education.
Opinions expressed herein are not necessarily those of either TRAID or NIDRR
In this issue......
SPECIAL EDUCATION AMENDMENTS OF 1997
Introduction
Definition of Appropriate Education
IEP Development
Evaluations
IEP Content
Least Restrictive Environment
Assistive Technology
Policy Letters
Private School Placements
Mediation
Attorney's Fees
Student Discipline
Conclusion
SPECIAL FEATURES
Vocational Rehabilitation Update
Administrative Hearings I
Administrative Hearings II
Administrative Hearings III
SPECIAL EDUCATION AMENDMENTS OF 1997 MORE SERVICES FOR CHILDREN, GREATER ROLE FOR PARENTS AND INCREASED RELIANCE ON AT
INTRODUCTION
After years of debate, the amended Individuals with Disabilities Education Act (IDEA) became law on June 4, 1997. The new law, on balance, enhances services available to children with disabilities, strengthens the role of parents and increases reliance on assistive technology (AT) to ensure that students receive an appropriate education.
This article focuses on the most significant changes, especially as they relate to AT. Most changes became effective in June 1997. Some are effective on July 1, 1998. Unless indicated otherwise, all changes became effective in June.
This article supplements the feature article which appeared in the April, 1996 issue of IMPACT. The full text of the new IDEA can be found on the Internet at www.lrp.com.
DEFINITION OF
APPROPRIATE EDUCATION
Advocates regularly confront the U.S. Supreme Court's test for an appropriate special education program: a school need not provide a child with the best education or one which will maximize a child's potential, but only one which ensures educational benefit. Board of Education v. Rowley, 458 U.S. 176, 188-89 (1982).
While IDEA still requires an "appropriate" education, findings in the new law may expand a school's obligation to children. Significantly, Congress found that the education of children with disabilities can be made more effective by supporting development of school personnel to ensure that children "have the skills and knowledge necessary to enable them &emdash; (i) to meet developmental goals and, to the maximum extent possible, those challenging expectations that have been established for all children; and (ii) to be prepared to lead productive, independent, adult lives, to the maximum extent possible." 20 U.S.C. § 1400(c)(5)(E)(emphasis added).
Congress stressed that an appropriate education should meet students' unique needs and "prepare them for employment and independent living." Id. § 1400(d)(1)(A). States must, commencing July 1, 1998, develop goals for the performance of children with disabilities which will promote this requirement. Id. § 1412(a)(16)(A)(i).
IEP DEVELOPMENT
The law significantly changes the individualized education program (IEP) development process. It puts into law what had only been in regulation, adds new requirements and changes others. Effective July 1988, the Committee on Special Education (CSE) must include the parent and at least one regular education teacher if the child is or may be participating in "the regular education environment." Id. § 1414(d)(1)(B).
Evaluations
Evaluations should be more functional to help determine whether the student has a disability and, if so, to determine his or her educational needs. Id. § 1414(a)(1)(B). They must be conducted before the initial provision of services and before a student is declassified. Reevaluations must be conducted every three years, and more frequently if conditions warrant or if the teacher or parent requests it. Id. § 1414(a)(1)(A) and (2); (c)(5).
IEP Content
Effective July 1998, the IEP must list all supplementary aids and services, program modifications, and supports for school personnel which will help the child to:
When developing the IEP, the IEP team must consider: the use of Braille for blind and visually impaired students; the use of and instruction in the child's language and mode of communication for deaf or hard of hearing students; and, for all students, whether the child requires AT. Id. §§ 1414(d)(1)(A) & (d)(3)(B).
LEAST RESTRICTIVE ENVIRONMENT
The statute fosters increased efforts to mainstream or educate students with disabilities in the least restrictive environment. Id. § 1414(d)(1)(A)(i) - (iv). IDEA now has a definition for "supplementary aids and services." These include aids, services and other supports, and are to be made available in regular education classes and "other education-related settings" to enable children with disabilities to be educated with their nondisabled peers to the maximum extent appropriate. Id. § 1401(29). Clearly, AT devices and services are included in this definition. These supports must be provided in settings other than the classroom, such as extracurricular settings. See 34 C.F.R. § 300.306. Thus, it is now even clearer, for example, that students who need alternative communication systems should be able to use them in after-school and other nonacademic functions. Any such use must be listed on the IEP. 20 C.F.R. § 1414(d)(1)(A)(iii).
ASSISTIVE TECHNOLOGY
Effective July 1998, the need for AT must be considered for all students. Id. § 1414(d)(3)(B)(v). Effective immediately, all states must have interagency agreements so that all public agencies, including Medicaid, that are responsible for providing services that are also considered special education services (including AT), fulfill their responsibilities. The public agency's financial responsibility must come before that of the school. If an agency does not meet its obligation, the school must provide the services, but may seek reimbursement from the public agency. The agreement must specify how various agencies will cooperate to ensure timely and appropriate delivery of services. Id. § 1412(a)(12).
What is the effect of these changes for persons seeking AT? The definitions for AT devices and services were added to IDEA in 1990. As originally defined, AT services included coordinating other services with AT devices "such as those associated with existing education and rehabilitation plans and programs." Id. § 1401(a)(26), now renumbered as § 1401(2)(D). Other requirements underscored the responsibility of vocational rehabilitation agencies like VESID and the Commission for the Blind to provide services to students while they were still in school. See 34 C.F.R. § 300.347(b).
A couple of examples will illustrate how these requirements might work out. Consider 13 year old John, who is Medicaid eligible. Evaluations show that John needs an electronic communication device known as a Dynavox, at a cost of $7,800, in order to communicate with teachers and other students. It is identified as an educational need in John's IEP and the school is prepared to pay for it. Medicaid has also paid for devices like this in many cases. If Medicaid is prepared to approve funding for the device, the Medicaid obligation to pay will precede that of the school district.
The competing obligations of the special education system and an agency like VESID are more complicated. Consider 17 year old Mary, who is a high school junior, receives some special education services and has been identied as a candidate for a college program in graphics design. Upon entering college, Mary will need a laptop computer with voice-activated software and other features to accomodate for her disability. Those who have evaluated Mary's computer needs agree that the laptop should be purchased for her this year, voice activated software should be installed and a training course on use of the computer and software should be scheduled next summer through a local community college. This will allow Mary to devote her senior year to mastering use of the computer to allow her to excel during her college career.
Under the holding of the Supreme Court in Rowley (see above), the school may argue that Mary is not entitled to the computer, software and training because she was achieving "educational benefit" without it. Does the new IDEA language quoted above (see pp. 91-92) put a higher obligation on the school to prepare Mary for college and future employment? There is a strong argument that the school should fund these items.
Might VESID have an obligation to pay for some of these items? Traditionally, VESID did not begin providing services until Mary left high school. Now, VESID is expected to be an active participant in planning for college and the amended IDEA envisions an interagency agreement that spells out a process for determining who buys the computer, the software and pays for the training. The federal regulations govering VESID require that an Individual Written Rehabilitation Plan (IWRP) be written for Mary before she graduates. 34 C.F.R. § 361.22(a)(1). Nothing in those regulations would preclude VESID from purchasing equipment and services for Mary while she is still in high school. VESID must also ensure that there is no delay in services in between high school and college. Id.
How should Mary's case be resolved? A good solution would be for a CSE meeting in the Spring of her junior year which is attended by a VESID counselor. VESID agrees to purchase the laptop, which will remain Mary's property upon graduation. The school agrees to purchase the software and arrange for any necessary training. Absent such agreements, Mary or her advocate might be forced to pursue due process hearings against either the school, VESID or both.
POLICY LETTERS
The law limits the use of U.S. Department of Education policy letters. They cannot be used to establish rules for compliance, but are to provide informal guidance and are not legally binding. Each quarter, the Secretary of Education must publish in the Federal Register, and widely distribute, a list and summary of the policy letters issued. Any which the Secretary determines to be of national significance must have a statement to that effect and must be widely distributed. Within one year the Secretary must issue formal written guidance on those policies. 20 U.S.C. § 1406.
In an earlier article, published in a national journal, we summarized the AT-related policy letters. See James R. Sheldon, Jr. and Ronald M. Hager, Funding Assistive Technology for Persons with Disabilities: The Availability of Assistive Technology Through Medicaid, Public School Special Education Programs, and State Vocational Rehabilitation Agencies, 31 CLEARINGHOUSE REVIEW 50, 70-72 (May-June 1997)(available on our Web Page: www.nls.org or call us to request a copy of the article). This new language regarding policy letters should not deter advocates who have relied on them in the past, as the new language simply states what the law has always been. Policy letters, as an official interpretation of the Department of Education, should carry considerable weight as to the proper interpretation of IDEA.
PRIVATE SCHOOL PLACEMENTS
Several changes relate to children placed in private schools by their parents. Special education and related services, including AT, may be provided on the site of a parochial school "to the extent consistent with law." 20 U.S.C. § 1412(a)(10)(A)(i)(II).
MEDIATION
The new law mandates that states and school districts have available a mediation process to resolve complaints, at least whenever a hearing is requested. Mediation must be voluntary and cannot be used to deny or delay a parent's right to a hearing. Mediators must be impartial, trained in mediation techniques and knowledgeable of special education law. All discussions during mediation sessions are to be confidential. Id. § 1415(e).
ATTORNEY'S FEES
New restrictions limit the availability of attorneys' fees. With a request for a hearing there must be a statement describing the problem giving rise to the hearing request and a proposed resolution, to the extent known and available. Id. § 1415(b)(7). If this statement was not submitted, attorneys' fees can be limited. Id. § 1415(i)(3)(F)(iv). Fees are also not available for IEP team meetings unless the meeting was convened as a result of an impartial hearing or court decision. States may authorize attorneys' fees for participation in pre-hearing mediation. Id. § 1415(i)(3)(D)(ii).
STUDENT DISCIPLINE
The law makes several changes regarding student discipline. While this article will not go into depth on this subject, a few brief comments can be made. The obligation to provide a free appropriate public education (FAPE) to all children between the ages of 3 and 21 has been amended to require the provision of a FAPE (which includes AT) to children who have been suspended or expelled, regardless of whether or not there is a connection between the student's misconduct and his or her disability. Id. §§ 1412(a)(1)(A) and 1415(k)(5)(A). For example, consider the learning disabled student who is disciplined for fighting and who uses a laptop computer for class notes, homework assignments and tests. It is determined there was no connection between his misconduct and his disability. He can now be disciplined to the same extent as other, nondisabled students. Id. § 1415(k)(5). However, because he is still entitled to a FAPE, he would still be entitled to educational services, including the laptop computer.
CONCLUSION
The reauthorization of IDEA is, in balance, a very positive move forward for children with disabilities. In reviewing this amended law, one is struck with the very strong statements from Congress that would suggest that the new test for what is "appropriate," under IDEA, is an education that prepares students with disabilities to lead "productive, independent, adult lives, to the maximum extent possible." While it is premature to suggest the new law tacitly overrules the U.S. Supreme Court's Rowley decision, advocates should be encouraged to push for a more liberal standard of what is appropriate and a more liberal availability of AT to ensure that children with disabilities are prepared for "employment and independent living."s
VOCATIONAL REHABILITATION UPDATE
New Federal Policy Requires
VESID and CBVH
to Provide Assistance that Will Maximize Employment
On August 19, 1997, the federal Rehabilitation Services Administration (RSA) issued a Policy Directive, RSA-PD-97-04, which governs State Vocational Rehabilitation (VR) agencies. This new directive requires New York's Office of Vocational and Educational Services to Individuals with Disabilities (VESID) and the Commission for the Blind and Visually Handicapped (CBVH) to approve vocational goals and the services to meet these goals to enable persons with disabilities to maximize their employment potential. This directive represents a dramatic shift in RSA policy and should be publicized to all who may be affected by it.
In our March 1996 issue of IMPACT and in an article we published through Clearinghouse Review, we discussed State VR agencies as funding sources for assistive technology (AT). In the Clearinghouse article, we specifically discussed the concept of maximization of employability. See James R. Sheldon, Jr. and Ronald M. Hager, Funding Assistive Technology for Persons with Disabilities: The Availability of Assistive Technology Through Medicaid, Public School Special Education Programs, and State Vocational Rehabilitation Agencies, 31 CLEARINGHOUSE REVIEW 50, 65 (May-June 1997) (available on our Web Page:www.nls.org or call us to request a copy).
We pointed out that both the statutory language in Title I of the Rehabilitation Act and the legislative history to Title I require state VR agencies to provide assistance that will enable individuals with disabilities to "maximize employment, economic self-sufficiency, independence, and inclusion and integration into society." 29 U.S.C. § 701(b)(1); see also S. Rep. No. 388, 99th Cong., 2d Sess. 5 (1986). (We refer the reader to the Clearinghouse Review article for a discussion of case law on the maximization issue, most of which is favorable to the individual seeking VR agency sponsorship.)
RSA is that branch of the United States Department of Education which oversees the delivery of VR services under Title I of the Rehabilitation Act. It also issues regulations to implement the requirements in Title I. See 34 C.F.R. Part 361 (final VR regulations which appeared in February 11, 1997 issue of the Federal Register). RSA also periodically issues Policy Directives which provide extensive interpretations of the mandates of the relevant law and regulations.
The August 1997 Policy Directive concerns the "employment goal" for an individual with a disability. It rescinds a 1980 policy and describes the standard for determining an employment goal under Title I. RSA's 1980 policy, 1505-PQ-100-A, identified "suitable employment" as the standard for determining an appropriate vocational goal for an individual with a disability. In that policy and in an earlier, 1978 policy (1505-PQ-100), RSA described "suitable employment" as "reasonable good entry level work an individual can satisfactorily perform."
The 1978 and 1980 policies, which are now rescinded, led many state VR agencies to drastically limit the employment goals that would be approved under an individualized written rehabilitation program (IWRP). This has, at times, been a source of disagreement between VESID or CBVH and the individuals they serve. Both agencies have, at times, balked at the notion of sponsoring a person seeking an advanced degree to maximize employment. This, in turn, led to litigation, in New York and in other states.
RSA's clear change in policy is best expressed in the following quote from the August 1997 Policy Directive:
"The guidance provided through this Policy Directive is intended to correct the misperception that achievement of an employment goal under Title I of the Act can be equated with becoming employed at any job. As indicated above, the State VR Services program is not intended solely to place individuals with disabilities in entry-level jobs, but rather to assist eligible individuals to obtain employment that is appropriate given their unique strengths, resources, priorities, concerns, abilities, and capabilities. The extent to which State units should assist eligible individuals to advance in their careers through the provision of VR services depends upon whether the individual has achieved employment that is consistent with this standard."
This new directive clarifies that cost or the extent of VR services an individual may need to achieve a particular employment goal should not be considered in identifying the goal in the IWRP. So, for example, an individual who has the capability of becoming a lawyer or a certified public accountant should be sponsored to pursue that goal even if it will require extensive funding of assistive technology (AT) to allow the person to work in the typical office setting. The new directive also clarifies that a person who is currently employed will, in appropriate cases, be eligible for VR services to allow for "career advancement" or "upward mobility." This could allow, for example, an individual who is blind and employed in a low-paying job answering telephones to pursue the education needed to pursue a better position within the same setting or a separate career as a teacher or rehabilitation counselor. This could certainly involve the need for AT to meet educational or job-related requirements.
The new Policy Directive emphasizes that the State VR agency must still determine whether the individual's career choice is consistent with his or her vocational aptitude. In an effort to meet the maximization of employability requirements, however, state agencies like VESID and CBVH are encouraged to make these determinations through a comprehensive assessment (such as a trial placement in a real work setting) or by establishing short-term objectives in the IWRP (such as a trial semester in college). In many cases, these trial work or educational placements should be accompanied by the availability of AT as a means of overcoming a disability-related deficit.
We at the AT Advocacy Project believe that RSA's new policy is simply a clear statement of what has been the law for many years. However, since this new directive represents a dramatic departure from previous RSA policy, it is important that information about the new directive be disseminated to individuals with disabilities and their advocates. Copies of the new policy directive are available through the AT Advocacy Project (call Vivian at 716-847-0655 ext. 271) and can be downloaded from our Web Page (www.nls.org).
Matter of G.S. (FH # 2457413J, Aug. 27, 1997): Lorne Marshall does it again! Lorne, a paralegal intern with our AT Advocacy Project, represented a nine year old child with a diagnosis of spastic quadriplegia, cerebral palsy and visual impairment. The child's doctor requested Medicaid prior approval for a MacLaren Buggy, a Whitmyer Headrest, and a Carrie Rover Seat. All three were denied. Lorne argued the medical necessity and cost effectiveness of each piece of equipment. He also brought to the Administrative Law Judge's attention the Department of Health's inadequate medical review. The fair hearing decision, citing the agency's failure to consider the facts related to medical necessity and its lack of medical evidence to refute an expert opinion, overturned the agency's denial. Great work Lorne!
For copies of this decision, ask for Matter of G.S. (FH# 2457413J).
Matter of C.P. (FH# 2605093, July 10, 1997): Theresa Simmons, a paralegal with Neighborhood Legal Services' Public Benefits Unit in Buffalo, successfully advocated for a seven year old with Osteogenesis Imperfecta. Osteogenesis Imperfecta is a genetic disorder characterized by bones that break easily, often from little or no apparent cause. The child was denied Medicaid prior approval for a Quickie 2 custom manual wheelchair because the Department of Health (DOH) claimed the child had equally suitable equipment, a caster cart. The caster cart left the child out of the visual range of his classmates thereby raising the potential for repeated injury. Thanks to Theresa's efforts the hearing record showed sound medical necessity and, on remand to the local DOH, the agency immediately gave prior approval for the wheelchair.
For copies of this decision, ask for Matter of C.P. (FH# 2605093Y).
Matter of S.F. (FH #2694517Z): Our pro bono affiliates give us the hat trick for administrative hearings. Kevin Kearney, an attorney with the Hodgson, Russ firm in Buffalo, represented a 33 year old skilled nursing facility resident with a primary diagnosis of severe mental retardation, severe scoliosis, and cerebral palsy who was denied Medicaid prior approval for a power wheelchair with a tilt in space feature. The chair was denied on the grounds that the resident had less costly alternatives available to meet his needs. In his zealous efforts to represent his client, Kevin laid fact after fact of medical necessity and cost effectiveness for the requested equipment before the administrative law judge. Overwhelmed by this compelling evidence, the state issued a decision which overturned the local DOH and awarded funding for the wheelchair.
For a copy of this decision, ask for Matter of S.F. (FH# 2694517Z)
SPECIAL NOTE: We are proud to acknowledge the Buffalo office of Hodgson, Russ, Andrews, Woods and Goodyear, LLP, for their commitment to the New York State Assistive Technology Project and our clients. Over the next year, Hodgson, Russ has agreed to work with us by advocating for people with disabilities on related Medicaid appeals. The volunteer efforts of firms like Hodgson, Russ will help us to provide more services for individuals like S.F. at a time when budget cuts to agencies like ours threaten access to a critical source of advocates for people with disabilities.
LOOKING
FOR SCHOLARSHIPS FOR PERSONS WITH DISABILITIES?
Consider this Source . . .
The Scholarship Book, by Daniel J. Cassidy, is a must have resource for the collegiate bound. It's a collection of scholarships, fellowships and loans offered by schools, organizations, individuals, foundations, trusts and governments. The book's format is user friendly, listing its funding sources under such headings as "general," "ethnic," etc. There is even a listing for the DISABLED! Some of the funding sources invite the reader to request more information, but others list the necessary criteria for the applicant and what the funds can be used for. For example, The American Foundation for the Blind sponsors the Helen Keller Scholarship Fund, which is open to all fields of study and can be used for the purchase of assistive technology.
The Scholarship Book is printed by Prentice Hall. If you are interested in purchasing this book, contact your local book store. You can also contact Prentice Hall through their Web Page: www.phdirect.com.
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
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Web Site:
www.nls.org
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Buffalo, NY 14203
(716) 847-0650
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In our Upcoming Issues...
AT Related Resources on the Internet
AT and Private Insurance