Vol. 6, No. 4 Summer 1998	Previous Issues Subscribe to AT Messenger Download PDF Viewer
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Delaware Legislation Enhances Infant & Toddler Access to AT

Brian J. Hartman, Esq., Project Director, Disabilities Law Program

Delaware is poised to implement legislation formally establishing a comprehensive early intervention program for infants and toddlers with disabilities. This legislation holds great promise for youngsters who would benefit from assistive technology.

Federal Background

In the mid-1980s Congress extended the reach of special education programs to infants and toddlers. The legislative package was commonly known as the "Part H Program" since its provisions were codified as Part H of the Individuals with Disabilities Education Act. Part H authorized Federal funding of services to states with qualifying programs. In exchange for Federal subsidies, states offered a wide variety of services to youngsters with disabilities from birth through their third birthday. In 1997, the legislation was reauthorized through FY (Fiscal Year) 2002 and recodified as "Part C" of the Act effective July 1, 1998.

Delaware Background

Delaware has operated a statewide "Part H" program since 1993. In FY 97, the program served 1,879 children. However, until now, Delaware lacked State legislation formally establishing the program and defining its components. Over thirty five (35) states previously enacted authorizing legislation, including all of Delaware's neighboring states (Pennsylvania, New Jersey, and Maryland). On March 26, 1998, Representative Maroney, a member of the state's Part H advisory council, introduced Delaware's enabling legislation, H.B. No. 531. The bill was drafted by the Disabilities Law Program at the council's request. With broad bipartisan support, the bill passed the House on April 28 by a 41-0 vote. On June 3, it passed the Senate by a 21-0 vote. Signed by the Governor on June 11, the bill will be fully effective within ninety (90) days.

Key Features

Eligibility

To be eligible for services, children must be less than 36 months old and need early intervention services because they are either: 1) experiencing developmental delay; 2) diagnosed as having a physical or mental condition which has a high probability of resulting in developmental delay; or 3) if authorized by regulation, at risk of developing substantial developmental delay in the absence of early intervention services. To date, Delaware has never adopted the third eligibility category, i.e., covering "at risk" children. However, the bill "leaves the door open" for the State to cover such children without separate legislation. Finally, the bill adopts a flexible approach to defining "developmental delay" by deferring the standard to regulations which can be modified based on experience and clinical developments.

Outreach

The legislation requires affirmative efforts to identify eligible children. Key provisions include assurances of both:

1) "prompt identification and evaluation of eligible children" and 2) availability of appropriate early intervention services "to all eligible children." Outreach efforts are often described as "Child Find" or "Child Development Watch" activities. In practice, the Department of Education (DOE) assumes primary responsibility for identifying children with autism, visual impairments, or hearing impairments. The Department of Health & Social Services assumes that role for children with other disabilities. #1

Assistive Technology

A broad array of services must be available through the program. "Assistive technology devices and services" are explicitly included in the bill. Based on Federal law, screening, assessment, selection, procurement and training on assistive technology are authorized (20 U.S.C. §§1401 and 1432; 34 C.F.R. §303.12). "Transportation," which could be specialized to meet a child's needs, is covered. "Audiology services," which could include amplification and hearing aid support, is included. Since speech, occupational, and physical therapy are covered, support for augmentative communication and mobility-related technology is contemplated.

While coverage of assistive technology is clearly within the scope of the program, experts agree that it is often overlooked in early intervention systems. Last year, a national project studied the underutilization of assistive technology assessments within the Part H (now Part C) program. The experts issued a report with the following recommendations:

• What developmental areas should be assessed?

All suspected areas of delay should be assessed. An assistive technology assessment or evaluation should address possible technology devices and services that are appropriate for each area of delay. The assistive technology evaluation should also address the impact of a particular device on other aspects of the child's life. For instance, if the child needs a communication device, the assessment should also address positioning, access to the device, and mobility.

• When can evaluation of assistive technology needs be requested?

An assistive technology assessment can be requested at any time, but should be routinely requested when the child is first assessed for eligibility for Part C services if there is reason to believe that the child could benefit from the use of assistive technology. States should develop a list of indicators or questions to assist team members in determining if an assistive technology assessment is warranted. Such indicators could include, but not be limited to the following:

* Is the child able to play with toys independently?

* Is the child able to communicate effectively?

* Is the child able to sit independently? Stand independently? Walk independently?

* Is the child able to feed himself/herself independently?

If the answer to any of these questions is "no", then an assistive technology evaluation should be conducted. #2

Interagency Collaboration

Since many agencies serve young children with disabilities, coordination is of critical importance. The State legislation confirms that the Department of Health & Social Services will continue as the "lead agency" in implementing the Federal early intervention program. However, it also requires that State agencies and contractors cooperate with the Department to "ensure effective system implementation, coordination, and non-duplication of activities." This legislative mandate reinforces the Department's ability to prompt development of interagency agreements and discourages "ostracism" by agencies reluctant to share resources.

Individualized Family Services Plan

Eligible children are provided with an individualized family service plan ("IFSP"). This plan, which is designed in active collaboration with parents, identifies the nature and extent of services to be provided to the eligible child and family. Consumers must be vigilant to ensure that appropriate assistive technology is included in any plan when necessary to meet a child's identified needs. To minimize interagency disputes, the State legislation identifies the IFSP as the paramount service delivery model for the child. Specifically, the bill recites that "the individualized family service plan shall serve as the primary comprehensive service plan" among agencies and contractors providing early intervention services and "be accorded deference in determining the developmental, educational, and medical necessity of included early intervention services." For example, if the IFSP of a Medicaid-eligible child includes specific assistive technology, Delaware's Medicaid agency should not "second guess" its propriety when processing a funding request. #3

Dispute Resolution

Several options for resolving disputes are available. Interagency disputes are subject to resolution through grievance systems identified in interagency agreements. #4 Consumers may opt for mediation, an administrative hearing, or complaint to the Department of Health & Social Services. 20 U.S.C. §1439; Proposed 34 C.F.R. §§ 303.511-303.512, 62 Fed. Reg. 55026, 55123 (October 22, 1997).

Conclusion

All in all, passage of Delaware early intervention legislation holds great promise for improving access to assistive technology. The statutory mandate to conduct outreach activities, coupled with the program's enhanced visibility by inclusion in the Delaware Code, should result in an increase of covered youngsters. Finally, since the legislation specifically identifies assistive technology as a core service, and other agencies are encouraged to defer to services included in IFSPs, disputes over coverage and funding should be minimized.

Footnotes

1. DHSS, DOE, and DSCY&F Interagency Agreement for the Delaware Early Intervention System Under Part H of the Individuals with Disabilities Education Act (July 9, 1996).
   Assistive Technology Funding & Systems Change Project, Part C Policy Group, "Part C: Infants &
2. Toddlers With Disabilities Assistive Technology Policy", No. 97-21 (Summer, 1997). The Project, which is funded by the U.S. Department of Education, has a mailing address of 1660 L Street, N.W., Suite 700, Washington, D.C. 20036. It can be reached by phone at (202)776-0406, by e-mail at atproject@ucpa.org, or through its website at http://www.ucpa.org/html/innovative/atfsc index.html.
3. This provision codifies and expands current practice. The DHSS, DOE, and DSCY&F Interagency Agreement for the Delaware Early Intervention System Under Part H of the Individuals with Disabilities Education Act (July 9, 1996) recites as follows:

The existence of Part H funds notwithstanding, Medicaid is obligated to pay for allowable services covered through the EPSDT Program....Federal regulations permit Medicaid to pay for services provided to Medicaid beneficiaries under Title V and for those Medicaid allowable services covered in an IEP or an IFSP. Medicaid allowable services prescribed in an IFSP are deemed to be medically necessary when authorized by the Primary Care Physician of a child eligible for the Child Development Watch program.

This is consistent with commentary from the Secretary of the Department of Health and Social Services:

Regarding "medically necessity," the Managed Care Organizations participating in Delaware's Medicaid program have been instructed to honor the plan of care on the IFSP as the validation of "medical necessity" for the items included in that plan for children receiving services under Part H, in that this plan is the result of the consensus among the Primary Care physician, the Child Development Watch Team and the family.

Commentary on Delaware Medicaid Utilization Report Submitted by DHSS to the Developmental Disabilities Planning Council (April 18, 1996).

For example, the DHSS, DOE, DSCY&F Interagency Agreement for the Delaware Early Intervention System Under Part H of the Individuals with Disabilities Education Act (July 9, 1996) establishes a 6-part appeal process which eventually culminates in resort to the Governor's Office.