Volume 14, No. 1, Winter 2006	Previous Issues Subscribe to AT Messenger Download PDF Viewer
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Disabilities Law Program Activities Outlined in AT Act

Dan Atkins, Legal Advocacy Director, Disabilities Law Program

Robin is fourteen years old, born with Cerebral Palsy, and relies on a wheelchair for mobility. A treating orthopedist prescribes a therapeutic exercise device which will improve circulation, bone strength, and cardiovascular fitness. Citing the device’s cost of $10,000, Robin’s Managed Care Organization contends that the service is not a covered benefit, is not cost effective, and is essentially a home exercise device—and therefore not medically necessary.

The Disabilities Law Program

Unfortunately, Robin’s case is not hypothetical. Robin (a pseudonym to protect her confidentiality) is a client of the Disabilities Law Program (DLP). Through its Assistive Technology grant, the DLP represented her in a Medicaid hearing. Community Legal Aid Society, Inc. (CLASI) is a non-profit law firm representing poor, disabled, or elderly Delawareans free of charge. The DLP is a special project of CLASI, advocating for people with disabilities (mental or physical) in a number of different spheres. There are no income requirements or fees for DLP services. The DLP has projects focusing on the rights of people with mental illness, developmental disabilities, and traumatic brain injury, in addition to several projects which cut across disabilities by focusing on individual rights, voting rights, removing barriers to work for recipients of social security benefits, and assistive technology.

The AT Act

Through the reauthorization of the Assistive Technology Act of 1998, the DLP receives federal funding to provide advocacy services to promote the acquisition, utilization, and maintenance of assistive technology (AT) devices and services by individuals with disabilities. Individuals with disabilities are defined in the Act as those who have a disability and who would be enabled by an AT device or 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 familiar Americans with Disabilities Act definition of disability will determine what a disability is—the disability must substantially limit a major life activity. Major life activities have been construed by the courts to include walking, talking, breathing, working, procreating, and thinking. Disabilities which can be remediated by medication or a device may not be considered substantially limiting. For instance, someone with vision problems whose sight can be corrected with eyeglasses, or someone with hypertension which can be controlled by medication, may not have a substantially limiting impairment. However, someone who exclusively relies on a wheelchair for mobility most certainly would qualify, since the person may be mobile with the wheelchair, but the major life activity of walking is still impaired.

DLP Priorities under the AT Grant

In a non-profit organization, demand typically outstrips resources. As a result, the DLP solicits input from the community and then develops priorities to reduce subjectivity in case selection, and to leverage our limited resources to meet client needs and address systemic issues. The DLP employs a multi-faceted advocacy approach when confronting AT problems. The DLP handles cases both on the individual level (directly representing consumers in administrative and court hearings) and on the systemic level (advocating through committees and public policy forums). For instance, in the area of Medicaid litigation, the DLP, in addition to representing individual clients like Robin, is advocating through multi-disciplinary councils for the state to adopt a Medicaid Buy-In Program, which would significantly expand the number of clients eligible for Medicaid services, and as a result make AT devices and services more widely available for consumers.

In addition to the area of Medicaid advocacy, the DLP also represents children eligible for special education services who are seeking technology to improve their ability to benefit from their curriculum. For instance, electronic versions of instructional materials are crucial to students with visual impairments. The DLP represents a number of children in their efforts to seek payment from Medicaid, or school districts, for devices or services which they could not otherwise afford. Children with autism, mental retardation, or cerebral palsy may have limited ability to speak. Small handheld computers may be able to give a voice to a child who otherwise would need to rely on a rudimentary point at the picture book to communicate. The AT device strengthens vocabulary, enhances communication, and promotes the child’s independence.

On a systemic level, the DLP collaborates with the Delaware Assistive Technology Initiative (DATI) and state councils to promote legislative, regulatory, and policy standards which facilitate access to appropriate AT devices and services. The DLP sees the emergence of Charter Schools in Delaware as an opportunity to improve the availability of assistive technology to students with disabilities by ensuring that these schools properly implement the mandates of the Individuals with Disabilities Education Act.

A third DLP AT priority area is assisting AT consumers in maintaining their independence and helping employees, who rely on AT to work, receive vocational rehabilitation. In the coming year, important priorities for the DLP will include: 1) ensuring that AT (e.g., a wheelchair) has adequate warranties through enforcement of the AT Lemon Law, which was drafted by the DLP; and 2) advocating for employers to provide AT as reasonable accommodations.

Conclusion

Robin awaits a decision from the Medicaid Hearing Officer on whether she will be able to receive an AT device that remains beyond her family’s financial means. The DLP argued that AT, while expensive up front, is cost effective in the long run. Robin’s doctor pointed out that without the device, it is certainly possible that Robin’s condition could deteriorate, she could suffer broken bones, and she could need in-patient care, or worse, institutionalization in the near future. Paying $10,000 now to keep a child with her parents, rather than paying tens of thousands of dollars later to institutionalize her, seems so obvious. However, victory is anything but guaranteed.

Robin’s case is an example of the work the DLP is doing on behalf of individuals with disabilities in their effort to acquire AT. This article has highlighted just a few of the major areas of the law within which the DLP fulfills its responsibilities under the AT Act. The full DLP priorities are published on the CLASI website at www.declasi.org. In some cases, technical assistance or a referral only may be provided. Nevertheless, please consider calling the DLP in any of its three offices in Delaware should a person with a disability have any concerns about the provision, acquisition, or maintenance of an AT service or device.

Contact information for the DLP is as follows:

New Castle County
100 W. 10th St., Suite 801
Wilmington, DE 19801
(302) 575-0690

Kent County
840 Walker Rd.
Dover, DE 19904
(302) 674-8145

Sussex County
144 E. Market St.
Georgetown, DE 19947
(302) 856-613

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