7

Coverage for Relevant Products and Technologies¹

This chapter reviews the pathways by which individuals may gain coverage of the costs of the relevant products and technologies in each of the four areas of assistive technology (AT) addressed in this report (wheeled and seated mobility devices, upper-extremity prostheses, products and technologies that pertain to hearing, and products and technologies that pertain to communication and speech). The chapter includes discussion of both public and private funding sources, as well as workplace reasonable accommodations (see Annex Table 7-1 at the end of this chapter). In keeping with the committee’s statement of task, the chapter focuses primarily on AT funding for adults, although it includes discussion of youth and young adults who are transitioning from a public school environment to higher education, vocational training, or the workplace since AT may have a profound impact on that transition. As noted elsewhere in this report, however, students often lose access to their AT when they age out of or transition from public school education. Also, as discussed elsewhere in this report, coverage for the costs of devices does not guarantee the availability in all parts of the country of either the devices themselves or the qualified providers and teams with the knowledge, skill, and expertise necessary to properly evaluate, fit, train, and monitor people in the use of the devices.

The first section of the chapter reviews public funding sources, including Medicaid, Medicare, the Veterans Health Administration (VHA), special education programs (for transition-aged youth), state vocational

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¹ Much of this chapter is excerpted or slightly modified from a paper commissioned by the committee for this study (Sheldon and O’Connell, 2016).

rehabilitation (VR) agencies, and state workers’ compensation programs. Private funding sources are then addressed, including self-pay, Supplemental Security Income’s (SSI’s) Plan to Achieve Self-Support (PASS), state alternative financing insurance programs, Achieving a Better Life Experience (ABLE) accounts, charitable programs, and private health insurance and private disability insurance providers. The discussion for each funding source encompasses eligibility for the program, general criteria for funding AT, any specific criteria for each of the above four categories of AT addressed, and the availability of an appeals process if relevant. In addition, workplace reasonable accommodations are addressed with discussion on the Americans with Disabilities Act (ADA) and employer accommodations. The chapter ends with findings and conclusions.

Given the breadth of the discussion in this chapter, only one or two specific devices within each of the four categories of AT are addressed under each funding source. However, the overall discussion within each funding source generally applies to each category. The specific products discussed within each category include the following:

• Wheeled and seated mobility devices—power wheelchairs with specialty features (tilt-in-space, a seat elevator, and/or an integrated standing feature) and, to a more limited extent, lightweight and ultra-lightweight wheelchairs
• Upper-extremity prostheses—myoelectric prostheses (arm or hand)
• Products and technologies that pertain to hearing—hearing aids
• Products and technologies that pertain to communication and speech—both speech-generating devices (SGDs) that are dedicated and dual-purpose devices (i.e., laptops or tablets that can be used as SGDs and for personal computing)

The above AT devices, if properly matched to the user and with adequate training, may help reduce or eliminate the effects of impairments and enhance an individual’s ability to succeed in some work environments. They also tend to be more expensive than the more basic devices within the four categories, making funding more of a challenge in many cases. The Centers for Medicare & Medicaid Services (CMS) and private insurers have implemented competitive bidding for assistive products and technologies as a means of controlling costs (CMS, n.d.-a). Such competitive bidding may result in insurers covering the lowest-cost products and devices and in clinicians being less able to match the needs of their clients because of limited device options. “Medical necessity” is a typical consideration for insurers in their coverage of assistive devices, but devices that are deemed medically necessary may not include features that are most relevant or needed to pursue and support employment.

PUBLIC FUNDING SOURCES

Medicaid

Medicaid is a joint federal–state program authorized by Title XIX of the Social Security Act.² While state participation in Medicaid is optional, state compliance with the Medicaid Act is required.³ CMS is the agency within the U.S. Department of Health and Human Services that provides federal oversight of state Medicaid programs. CMS promulgates regulations and issues policy guidance concerning federal Medicaid requirements to ensure compliance by the states.⁴

Currently, all 50 states, the District of Columbia, and five U.S. territories (American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands) participate in Medicaid, making it “the nation’s main public health insurance program for people with low income and the single largest source of public health coverage in the U.S.” (Paradise, 2015). People with disabilities make up nearly 16 percent of the nearly 70 million individuals eligible for Medicaid nationally (Paradise, 2015). At the state level, a single state Medicaid agency and its designees implement the Medicaid state plan.⁵ Each state plan and any state plan amendments must be submitted to CMS for approval. States receive federal Medicaid funding, known as federal financial participation (FFP), for both the provision of health care services and certain administrative functions.⁶

Medicaid Eligibility Groups and Benefit Categories

Medicaid programs vary from state to state with respect to both the individuals who are eligible to enroll and the health care services covered. This variation stems from the Medicaid Act’s identifying some eligibility groups and service categories as mandatory and others as optional.

Eligibility groups for individuals with disabilities The Medicaid eligibility groups are of particular relevance to individuals with disabilities.

The first group is SSI beneficiaries. In 41 states, the District of Columbia, and the Northern Mariana Islands, SSI beneficiaries who receive a cash payment are automatically eligible for Medicaid. The remaining 9 states, called

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² Social Security Amendments of 1965, Public Law 89-97.

³ See Schweiker v. Gray Panthers, 453 U.S. 34 (1981).

⁴ 42 USC §§ 1396-1396w-5; 42 CFR § 430 et seq.

⁵ 42 CFR § 431.10(b).

⁶ 42 CFR § 433.10(b). The amount of federal funding a state may claim is based on a formula that compares the state’s per capita income with the national average, and it typically ranges from 50 to 83 percent for health care services.

209(b) states, establish their own Medicaid eligibility criteria, of which at least one criterion is more restrictive than the SSI criteria (SSA, 2014a, 2016a).

The second group is medically needy beneficiaries. In many states, this optional eligibility group allows individuals with income exceeding the state’s Medicaid limit to qualify for Medicaid through a spend-down or cost-share provision. For example, an individual whose countable monthly income exceeded the state’s Medicaid eligibility amount by $200 would face a $200 spend-down/cost-share. Once the spend-down or cost-share amount has been paid or incurred, full Medicaid eligibility is established.⁷

Finally, the Section 1619(b) and Medicaid Buy-In work incentives allow for Medicaid eligibility at significant levels of earned income and are important for working individuals with disabilities who lack private insurance or Medicare or who have insurance that does not cover needed services, such as home health services or durable medical equipment (DME).

The Section 1619(b) eligibility group, which exists in every state and the District of Columbia, allows Medicaid eligibility to continue when an individual loses SSI cash payments as a result of earned income above the threshold established by the state (SSA, 2015a). The 2016 threshold ranged from a low of $27,075 in Alabama to a high of $66,520 in Connecticut (SSA, 2016b). A higher eligibility threshold can be established if an individual’s Medicaid-allowed expenses and/or disability-related work expenses are high enough (SSA, 2014b).

The optional Medicaid Buy-In Program was created by Section 4733 of the Balanced Budget Act Amendments of 1997,⁸ with significant changes to the program being enacted as part of the Ticket to Work and Work Incentives Improvement Act of 1999.⁹ As of April 2014, 46 states offered a Medicaid Buy-In Program for individuals with disabilities (Center for Workers with Disabilities/American Public Human Services Administration, n.d.). States commonly establish an eligibility threshold for the program of 250 percent of the federal poverty level, with some states having higher or lower thresholds (Kehn, 2013). States may charge a premium for participation in the program, set their own unique countable asset limits, and determine which assets are counted and which are exempt. States are required to determine countable income using the SSI earned income exclusions, meaning that the first $65 and half of remaining earned income each month is excluded. For states such as New York that allow income up to 250 percent of the poverty level (monthly countable income limit of $2,475),

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⁷ 42 USC § 1396a(a)(10)(C).

⁸ Public Law 105-33 (August 5, 1997).

⁹ 42 USC §§ 1396a(a)(10)(A)(ii) and 1396o.

gross earned income in 2016 could have been as high as $5,035 per month ($60,420 per year) (New York State Department of Health, 2016).

Mandatory and optional benefit categories The Medicaid Act lists 15 mandatory benefit categories every state is required to include in its state plan, as well as 28 optional categories (CMS, n.d.-c). Although states may choose which optional categories they include for adult beneficiaries aged 21 and older, all optional services must be available to children and youth under age 21 pursuant to the Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) requirements of the Medicaid Act (see CMS, 2014a).¹⁰ This broader array of services available through EPSDT is critical for all eligible children and youth, but is particularly important for those with disabilities who are preparing to transition from school to adult life. As discussed in greater detail later in this chapter, it is vital that transition planning for these youth take into account the fact that their eligibility for some optional Medicaid benefit categories may end when they turn 21.

Of the mandatory services available to beneficiaries of any age, the home health benefit, which includes medical supplies, equipment, and appliances, is often the primary source of AT for eligible individuals with disabilities.¹¹ In 2016, CMS defined these services as follows:

Also defined in federal law are several optional benefits that may be a source of AT devices and services.¹⁴ For example, prosthetic devices are defined as

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¹⁰ 42 USC § 1396d(r); 42 USC § 1396a(a)(43);42 USC § 1396d(a)(4)(B).

¹¹ Medicaid programs typically do not use the term “assistive technology” when describing available benefits. Instead, AT devices are often referred to as DME, medical equipment, or prosthetic and orthotic devices.

¹² 42 CFR § 440.70(b)(3)(i).

¹³ 42 CFR § 440.70(b)(3)(ii). The word “disability” was added to the term “illness or injury” in the final home health regulation to avoid the denial of medical equipment and supplies for individuals with “congenital conditions or developmental disabilities.” 81 Fed. Reg. 5540.

¹⁴ The optional nature of a benefit does not lessen the state’s legal obligation to provide this benefit to eligible beneficiaries. Once an optional service is included in the state plan, it must be provided in compliance with all federal requirements. See Lankford v. Sherman, 451 F.3d 496, 504 (8th Cir. 2006); Tallahassee Memorial Regional Medical Center v. Cook, 109 F.3d. 693, 698 (11th Cir. 1997); Weaver v. Reagen, 886 F.2d 194, 197 (8th Cir. 1989); Ellis v. Patterson, 859 F.2d 52, 54 (8th Cir. 1988); Meyers ex rel. Walden v. Reagan, 776 F.2d 241, 243-44 (8th Cir. l985); Eder v. Beal, 609 F.2d 695, 702 (3d Cir. 1979).

States that include this category of service in their state plan may cover a variety of AT devices through this benefit, including prosthetic limbs, orthotic braces, SGDs, and compression therapy products.¹⁶

Other optional benefits relevant to AT include physical, occupational, and speech therapy; preventive services; and rehabilitative services. Importantly, physical therapy, occupational therapy, and speech therapy are each defined to include the services of a licensed therapist and “any necessary supplies and equipment.”¹⁷Preventive services are those that “prevent disease, disability, and other health conditions or their progression; prolong life; and promote physical and mental health and efficiency.”¹⁸Rehabilitative services include services that allow for the “maximum reduction of physical or mental disability and restoration of a recipient to his best functional level.”¹⁹ Given these broad definitions, each of these benefits may provide access to AT for eligible beneficiaries.

Finally, optional home- and community-based services (HCBS) waivers may provide items not otherwise available through state plan benefits, including environmental accessibility adaptations, adaptive aids, specialized medical equipment and supplies, and personal emergency response systems.²⁰ While 1915(c) HCBS waivers and 1915(i) HCBS state plan option programs can be a good source of AT, CMS has clearly advised states that access to certain medical equipment cannot be limited by offering these items only through waiver programs if they also meet the definition of home health medical equipment.²¹ For example, Texas Medicaid previously

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¹⁵ 42 CFR § 440.120(c).

¹⁶ Some overlap exists between prosthetic devices and medical equipment, as certain items meet the definition of both service categories. See Fred C. v. Texas Health and Human Services Commission, 924 F. Supp. 788 (W.D. Tex. 1996) and 988 F. Supp. 1032 (W.D. Tex. 1997), affirmed per curium, 167 F. 3d 537 (5th Cir. 1998) (finding that SGDs meet the definition of DME and prosthetic device).

¹⁷ 42 CFR § 440.110.

¹⁸ 42 CFR § 440.130(c).

¹⁹ 42 CFR § 440.130(d).

²⁰ 42 CFR § 440.180. In developing an HCBS waiver program, states can choose from an array of services, several of which may encompass AT devices and services.

²¹ 81 Fed. Reg. 5538.

limited access to ceiling lifts to HCBS waiver participants, claiming that FFP was not available for this equipment if provided through home health. In 2013, CMS wrote to the Texas Medicaid director to advise that the state’s position concerning this equipment was incorrect (CMS, 2013). According to CMS, “medically necessary ceiling lifts will be reimbursed by CMS as part of the Texas home health benefit if these lifts meet the state’s definition of DME.”²² CMS subsequently advised all states that such restrictions are unacceptable: “States may not restrict access to equipment that meets the criteria for coverage under the home health benefit by carving certain equipment out of home health and offering it only to individuals who qualify under a state’s [HCBS waiver programs].”²³

The broad definitions of these Medicaid benefits are particularly important to individuals seeking AT, as all service categories within the state plan must be “sufficient in amount, duration, and scope to reasonably achieve [their] purpose.”²⁴ According to CMS, “because of the unique nature of medical supplies, equipment, and appliances, scope limitations within the applicable federal and state definitions are not consistent with the sufficiency of the benefit.”²⁵ This means that states cannot simply exclude items of medical equipment from the home health benefit, claiming that such items are not within the scope of the benefit.

Federal Medicaid requirements also prohibit states from “arbitrarily [reducing] the amount, duration, or scope of a required service solely because of the diagnosis, type of illness, or condition.”²⁶ As explained by one federal appeals court, “a state’s failure to provide Medicaid coverage for non-experimental, medically-necessary services within a covered Medicaid category is both per se unreasonable and inconsistent with the stated goals of Medicaid.”²⁷ In fact, the primary goal of this program—“to help families and individuals attain or retain their capability for independence or self-care”²⁸—is met when eligible beneficiaries with disabilities are able to access AT devices and services through Medicaid..

The Prior Authorization Process

Like other features of state Medicaid programs, the process for requesting services differs from state to state. Many states, however, utilize some

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²² Equipment that does not meet the new federal definition under home health may be covered under a section 1915(c) waiver or the 1915(i) benefit. 81 Fed. Reg. 5538.

²³ 81 Fed. Reg. 5538.

²⁴ 42 CFR § 440.230(b).

²⁵ 81 Fed. Reg. 5539.

²⁶ 42 CFR § 440.230(c).

²⁷Lankford v. Sherman, 451 F.3d 496, 511 (8th Cir. 2006).

²⁸ 42 USC § 1396-1.

system of prior authorization to consider requests for medical equipment and other AT.²⁹ To obtain Medicaid prior authorization, eligible beneficiaries, in conjunction with their health care providers and Medicaid-enrolled DME suppliers, may be required to demonstrate that a requested device is (1) covered by Medicaid and (2) medically necessary.

Coverage of medical equipment The central principle governing coverage of medical supplies and equipment is long-standing: an item is covered by Medicaid when it fits within the definition of a category of service included in the state plan.³⁰ In September 1998, the Health Care Financing Administration (now CMS) clarified this basic principle in policy guidance to the states addressing the scope of medical equipment available through the mandatory home health benefit (Richardson, 1998).³¹ Known as the DeSario Letter (Richardson, 1998), this guidance explained that a state’s exclusion of items meeting the definition of medical equipment conflicts with several important Medicaid provisions, including the reasonable standards requirement³²; the amount, duration and scope rule³³; and in some instances, the prohibition on diagnosis-based decision making.³⁴ While CMS advised that states may develop a list of preapproved DME items as an “administrative convenience,” they must also establish a “reasonable and meaningful procedure” for Medicaid beneficiaries to seek “modifications of or exceptions to [the] State’s pre-approved list.”³⁵ This process for determining coverage of medical equipment not on a state’s list must permit

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²⁹ In some states, individuals who are dually eligible for Medicare and Medicaid are unable to access the state’s Medicaid prior authorization process, making it impossible to obtain certain items of medical equipment. In 2016, CMS sought input from the public concerning the extent of this barrier in the states and possible solutions. 81 Fed. Reg. 42,802, 42,864 (June 30, 2016); see Justice in Aging (2016).

³⁰ Most Medicaid services relevant to AT are defined in federal law. In the absence of a federal definition, states must define benefit categories consistent with Medicaid’s amount duration and scope rule (42 CFR § 440.230(b)) and the prohibition on diagnosis-based decision making (42 CFR § 440.230(c)).

³¹ This policy letter was issued in response to the decision in DeSario v. Thomas, which erroneously upheld Connecticut Medicaid’s lists of covered and excluded items. The Supreme Court relied on this guidance in subsequently vacating the Second Circuit decision. 139 F.3d 80 (2nd Cir. 1998), cert. granted, vacated and remanded sub. nom., Slekis v. Thomas, 525 U.S. 1098 (1999).

³² 42 USC § 1396a(a)(17).

³³ 42 CFR § 440.230(b).

³⁴ 42 CFR § 440.230(c).

³⁵ To remain current, a state’s preapproved list must be updated periodically to reflect changes in available technology.

timely individualized decisions based on the definition of DME and must be available to Medicaid beneficiaries of any age.³⁶

In 2016, CMS revised the home health regulation to codify the principles of the DeSario guidance, once again clarifying the prohibition on exclusive coverage lists and lists of DME items that are specifically excluded.³⁷ Importantly, CMS also advised that states cannot characterize an item of medical equipment under an optional category of service that is not included in the state plan for adults in order to limit the availability of that item to beneficiaries under 21³⁸: “To ensure full coverage for medical equipment and appliances, we will require that, to the extent there is overlap in coverage with another benefit, states must nevertheless provide for coverage of these items under the mandatory home health benefit.”³⁹

For the first time, CMS established a federal definition of medical supplies and equipment, in part to address the many inconsistencies across the states regarding coverage of this benefit.⁴⁰ According to CMS, “in the absence of a generally applicable definition of [medical equipment], there has been confusion as to the proper scope of the benefit.”⁴¹ Consequently, CMS acknowledged that in some states, “this rule may expand coverage of medical supplies, equipment and appliances under the home health benefit.”⁴²

Notably absent from this federal definition is the requirement that an item be “suitable for use in the home,” a Medicare criterion that some states have historically included as part of their Medicaid DME definition.⁴³ Because the revised regulation now clarifies that beneficiaries can receive home health services “in any setting in which normal life activities take place,” states can no longer apply an “in the home” limitation to restrict the DME items covered by Medicaid.⁴⁴ As explained by CMS, “the purpose

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³⁶ The addition of a federal definition of medical equipment and supplies provides a regulatory framework for states to follow concerning the DME benefit. 42 CFR § 440.70(b)(3)(i-ii); 81 Fed. Reg. 5538.

³⁷ 42 CFR § 440.70(b)(3)(v).

³⁸ An example of this prohibited practice is when a state claims to provide SGDs through the speech-language pathology benefit, knowing this optional benefit is not included in the state plan for adults and is available only to children and youth through Medicaid’s EPSDT requirement.

³⁹ 81 Fed. Reg. 5535.

⁴⁰ 42 CFR § 440.70(b)(3)(i-ii).

⁴¹ 81 Fed. Reg. 5532.

⁴² 81 Fed. Reg. 5530.

⁴³ 42 CFR § 440.70(c)(1). This provision codifies the principle established in Detsel v. Sullivan, 895 F.2d 58 (2d Cir. 1990), and Skubel v. Fuoroli, 113 F.3d 330 (2d. Cir. 1997), that private-duty nursing and home health services cannot be restricted to services furnished in the home.

⁴⁴ The only exceptions are hospitals, nursing facilities, intermediate care facilities for individuals with intellectual disabilities, and any setting in which payment is or could be made under Medicaid for inpatient services that include room and board. 42 CFR § 440.70(c)(1); 81 Fed. Reg. 5530, 5532.

of this provision is to ensure the delivery of home health services not only in the home, but also in the community when the beneficiary is participating in normal life activities.”⁴⁵ This clarification is a critical change for Medicaid beneficiaries seeking certain medical equipment, in particular, certain custom powered wheelchairs, as states can no longer deny these wheelchairs on the basis that they are needed for use outside of the home.

The revised regulation also addresses other barriers to coverage of medical equipment. For example, the rule makes clear that eligibility for medical equipment and supplies is not contingent upon a beneficiary’s requiring other home health services, such as nursing services or therapy.⁴⁶ Moreover, the new rule reiterates that states cannot restrict medical equipment and supplies to individuals who are “homebound,” as the application of this requirement for home health services has long been prohibited.⁴⁷ Importantly, CMS also advised that states’ coverage of medical equipment must be “updated periodically to reflect changes in available technology” (Richardson, 1998).

Medical necessity The requirement that Medicaid services be “medically necessary” is long-standing, dating back to the inception of the Medicaid program. The beneficiary’s physician is the “key figure in determining utilization of health services,” and it is this physician who “certifies the medical necessity of the services furnished.”⁴⁸ In 2016, CMS reaffirmed this fundamental principle in the preamble to the revised home health rule, explaining that approval of medical equipment and supplies must be based on the physician’s judgment of medical need, consistent with accepted standards of medical practice.⁴⁹

The Medicaid Act does not define “medical necessity” for beneficiaries aged 21 or older. Typically, state Medicaid programs define this term in

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⁴⁵ 81 Fed. Reg. 5530, 5532.

⁴⁶ 42 CFR § 440.70(b).

⁴⁷ 42 CFR § 440.70(c)(1). According to policy guidance issued by CMS on July 25, 2000, the provision of Medicaid services must comply with the ADA so that individuals with disabilities can live in the most integrated setting possible. As explained by CMS, conditioning Medicaid home health benefits on a homebound requirement violates Medicaid regulations related to “amount, duration, and scope of services” at 42 CFR § 440.230 and “comparability of services” at 42 CFR § 440.240. See Olmstead Letter No. 3, Attachment 3-g (HHS, 2000a).

⁴⁸ See S. Rep. No. 404, 89th Cong., 1st Sess., reprinted in 1965 U.S.C.C.A.N. 1943. See also Weaver v. Reagan, 886 F.2d 194, 200 (8th Cir. 1989) (“The Medicaid statute and regulatory scheme create a presumption in favor of the medical judgment of the attending physician in determining the medical necessity of treatment.”); Pinneke v. Preisser, 623 F.2d 546, 550 (8th Cir. 1980) (“The decision whether or not certain treatment or a particular type of surgery is ‘medically necessary’ rests with the individual recipient’s physician and not with clerical personnel or governmental officials.”)

⁴⁹ 81 Fed. Reg. 5541; 81 Fed. Reg. 5533.

statute, rule, or policy, often requiring that the requested Medicaid service be appropriate for the beneficiary’s medical condition or disability and be provided in conformity with accepted standards of medical practice. For example, Colorado Medicaid describes medical necessity in the context of a good or service that

1. Will, or is reasonably expected to prevent, diagnose, cure, correct, reduce, or ameliorate the pain and suffering, or the physical, mental, cognitive, or developmental effects of an illness, condition, injury, or disability. This may include a course of treatment that includes mere observation or no treatment at all;
2. Is provided in accordance with generally accepted professional standards for health care in the United States;
3. Is clinically appropriate in terms of type, frequency, extent, site, and duration;
4. Is not primarily for the economic benefit of the provider or primarily for the convenience of the client, caretaker, or provider;
5. Is delivered in the most appropriate setting(s) required by the client’s condition;
6. Is not experimental or investigational; and
7. Is not more costly than other equally effective treatment options.⁵⁰

For children and youth under age 21, medical necessity is defined in federal law and refers to the requirement that requested health care, diagnostic services, treatment, or other measures be necessary “to correct or ameliorate defects and physical and mental illnesses and conditions.”⁵¹ Thus, for children and youth under 21, Medicaid services must be provided if they are needed to correct, compensate for, or improve a condition or prevent it from worsening.⁵²

Generally, an item of medical equipment is medically necessary when it addresses an individual’s medical or functional needs and there is no less costly, equally effective alternative device. States sometimes go beyond their own general medical necessity standard, however, and establish equipment-specific criteria that dictate the circumstances under which a particular item will be considered medically necessary. When requesting prior authorization, the health care provider and equipment supplier must fully address

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⁵⁰ 10 CCR 2505-10 Sec. 8076.1.8.

⁵¹ 42 USC § 1396d(r)(5).

⁵² See Ekloff v. Rodgers, 443 F.Supp. 2d 1173, 1181 (D. Ariz. 2006) (holding that “the phrase ‘to correct or ameliorate’ within the EPSDT provision is meant to include incontinence briefs for preventive purposes for Plaintiff children”). See also A.M.T. v. Gargano, 781 F. Supp. 2d 798, 806-07 (S.D. Ind. 2011) (adopting the definition of “ameliorate” used by the district court in Ekloff—“to make better or more tolerable” in light of “Congress’ intent to be inclusive rather than exclusive with EPSDT”).

these equipment-specific criteria in the evaluation report or letter of medical justification (see NLS, 2011a). To the extent that these criteria are either overly restrictive or otherwise do not comport with current standards of medical practice, Medicaid beneficiaries may have to seek administrative or judicial remedies. This is particularly true given that, nationally, more than half of all Medicaid beneficiaries are now enrolled with Medicaid managed care organizations (Kaiser Family Foundation, n.d.). Given that many of these managed care entities are insurers that typically establish their own medical necessity criteria in their private insurance contracts, Medicaid beneficiaries and their advocates must ensure that those criteria are consistent with the purpose of the Medicaid program and the federal Medicaid requirements governing home health and other relevant benefits.

Medicaid Coverage of Selected AT Devices

As state Medicaid programs begin to amend their home health benefit to comply with the recently revised federal regulation, access to funding for AT devices should become more uniform across the states.⁵³ Compliance with the new rule should lessen disagreements about Medicaid coverage of a particular item of equipment, turning the focus to the beneficiary’s medical need for the requested device.

Powered wheelchair with tilt, seat elevation, and integrated standing feature A custom powered wheelchair configured in this manner meets the four elements of the home health medical equipment definition as it (1) is primarily and customarily used to serve a medical purpose; (2) generally is not useful to an individual in the absence of disability, illness, or injury; (3) can withstand repeated use; and (4) is reusable or removable. It should not matter that the standing feature may have some ancillary use that is not primarily medical in nature, such as enhancing social interaction or supporting psychosocial development, as this feature is an integral part of a therapeutic program of supported standing and is primarily and customarily used to serve numerous medical purposes. Therefore, a custom powered wheelchair with these specific components theoretically should be covered by every state Medicaid program through the home health benefit. However, at least one state continues to expressly exclude wheelchair standing features from coverage through the home health benefit.⁵⁴

As to the medical necessity of this custom powered wheelchair, evidence

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⁵³ Recognizing the “operational and budgetary implications” of this rule, CMS delayed states’ compliance with the new provisions to July 1, 2017, or July 1, 2018, depending on when the state legislature meets. 81 Fed. Reg. 5530; 81 Fed. Reg. 5535.

⁵⁴ Texas Medicaid policy states that power standing systems on a wheeled mobility device are not a benefit of home health (TMHP, 2016, p. 97).

varies with respect to the medical benefits of supported standing. The Rehabilitation Engineering and Assistive Technology Society of North America (RESNA) supports the position that “wheelchair standing devices are often medically necessary,” citing research indicating that frequent standing by wheelchair users can assist in maintaining vital organ capacity and bone mineral density; improving passive range of motion; lessening abnormal muscle tone and spasticity; and reducing the occurrence of pressure sores, contractures, and skeletal deformities (Arva et al., 2009; Dicianno et al., 2016, p. 3). However, a systematic review of literature published between 1980 and September 2015 examined the effectiveness of home-based standing programs in adults with chronic neurological conditions (Paleg and Livingstone, 2015). The review indicated that these programs have an impact on range of motion and activity outcomes, while the evidence was less certain for other outcomes. The review identified 36 studies on the impact of a standing intervention on adults with subacute or chronic neurological conditions, including stroke and spinal cord injury, that met the inclusion criteria. The authors found stronger evidence supporting the positive effects of “home-based supported standing programs on range of motion and activity, primarily for individuals with stroke or spinal cord injury” (Paleg and Livingstone, 2015, p. 1). Evidence supporting the effect of standing programs on bone mineral density was mixed, and the evidence for other outcomes (e.g., strength and spasticity; skin, cardiorespiratory, bowel, and bladder function) and populations was determined to be weak or very weak (Paleg and Livingstone, 2015).

Whether a state Medicaid program will agree that a wheelchair with these custom components is medically necessary for a particular individual likely depends on several factors, including the expertise of the medical professionals conducting the wheelchair evaluation, the quality and thoroughness of the evaluation, the specific medical conditions and functional needs to be addressed by the recommended wheelchair, and an explanation as to why a separate standing device or other alternative equipment is not equally effective in meeting the individual’s medical need to stand. Litigation to resolve these types of issues has been necessary in several states.⁵⁵

Myoelectric upper-extremity prostheses Myoelectric limbs also meet the four elements of the federal medical equipment definition and thus, theoretically, should be covered through the mandatory home health benefit,⁵⁶ although states vary in this regard. Additionally, these devices meet the federal

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⁵⁵ See footnote 69.

⁵⁶ Myoelectric limbs are controlled by electrical signals generated by the user’s own muscles, and in many instances they are considered to be more functional than other replacement limbs. For some individuals with very high-level amputations, myoelectric limb replacement is the only possible alternative.

definition of prosthetic devices and can be covered through this optional category of service if it is included in the state plan for adults.⁵⁷ The medical necessity of limb replacement appears straightforward, as such devices are neither experimental nor a matter of convenience. More problematic with respect to coverage is the type of prosthesis for which Medicaid will pay. For example, will Medicaid pay for a myoelectric prosthesis or only a less costly body-powered device? Thus, thorough documentation of the individual’s medical and functional need for this specific item by qualified medical professionals is critical to obtaining Medicaid approval and funding. Yet, given that CMS does not have a Local Coverage Determinations (LCDs) document related to upper-limb prosthetics, there exist no clear and agreed-upon “reasonable and necessary conditions of coverage,” making recommendation and justification of myoelectric devices difficult.

Hearing aids Under the EPSDT program, states must provide hearing screening and appropriate diagnostic and treatment services, including hearing aids, hearing aid accessories, and related services, to Medicaid beneficiaries under 21 years of age. In addition, such services “must be provided periodically at intervals that meet reasonable standards of medical practice” (HLAA, 2015). For adults aged 21 and older, Medicaid coverage for hearing aids varies from state to state (HLAA, 2015). As of January 2015, only 28 states covered the purchase of hearing aids for adult beneficiaries, and these states varied in their requirements for coverage (e.g., level of hearing loss, type of hearing aid), prescription, repairs, and replacements (HLAA, 2015; NASEM, 2016).

Dual-purpose SGD and personal computing device A dedicated SGD is one that performs the sole function of speech generation. Such devices clearly meet the four elements of the home health medical equipment definition and theoretically should be covered through the mandatory home health benefit in every state.⁵⁸ For individuals who may not qualify for home health services, such as those residing in nursing facilities, these devices also meet the definition of prosthetic devices and speech-language pathology services and can be covered through these other benefit categories when included in the state plan.

By contrast, a dual-purpose device is one that both generates speech and performs the functions of a personal computer. State Medicaid programs

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⁵⁷ As previously explained, CMS has cautioned states that to “ensure full coverage for medical equipment and appliances, we will require that, to the extent there is overlap in coverage with another benefit, states must nevertheless provide for coverage of these items under the mandatory home health benefit.” 81 Fed. Reg. 5535.

⁵⁸ In fact, access to SGDs through state Medicaid programs has been the subject of extensive litigation in numerous states. See footnote 68.

may attempt to avoid coverage of these dual-purpose devices on the basis that they are useful in the absence of disability, illness, or injury and thus do not meet the definition of medical equipment. In some instances, state Medicaid programs have required the personal computing function of dual-purpose SGDs to be locked when the item is delivered to the beneficiary, thereby limiting its function to speech generation. The personal computing function then can be unlocked after delivery for a nominal cost. As with all high-tech devices, a thorough evaluation of the individual’s medical need for the recommended device is required. Importantly, the participation of an occupational or a physical therapist, along with the speech-language pathologist, may be required to conduct the SGD evaluation.

Medicaid Appeal Rights

Medicaid beneficiaries are entitled to timely and adequate notice and the opportunity for a fair hearing when a service request “is denied or is not acted upon with reasonable promptness.”⁵⁹ Medicaid regulations require that denial notices explain, among other things, why the requested DME was denied, the specific regulations supporting the denial, the right to a fair hearing, how to request this hearing, and the time limit within which one must request the hearing.⁶⁰ This notice is also required when a requested service is approved with modification, as the state’s changes to the recommended service may not fully meet the individual’s medical needs.⁶¹ For example, an individual may seek a custom wheelchair with several seating and positioning components. If the Medicaid agency approves the wheelchair but denies some of the requested components, the beneficiary is entitled to a fair hearing to challenge this partial denial.

States’ Medicaid fair hearing systems must be authorized to determine whether an adverse coverage decision is contrary to federal requirements and whether a requested item is medically necessary. In most cases, hearing decisions must be issued within 90 days of the request for a hearing.⁶² Typically, Medicaid beneficiaries who receive an adverse hearing decision can seek judicial review of the agency’s final decision in state court.⁶³ Litigation in federal court is also an option for challenging state Medicaid requirements that deprive beneficiaries of the AT devices and services they require.

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⁵⁹ 42 USC § 1396a(a)(3); 42 CFR § 431.200 et seq.

⁶⁰ 42 CFR § 431.210. The required content of notices sent to beneficiaries enrolled in Medicaid managed care organizations is set forth in 42 CFR § 438.404(b).

⁶¹ See Ladd v. Thomas, 962 F. Supp. 284 (D. Conn. 1997) (holding that notice and an opportunity for a fair hearing are required when a request for DME is approved with modification).

⁶² 42 CFR § 431.244.

⁶³ 42 CFR § 431.245.

Access to AT Through Advocacy and Litigation

In 1994, Congress authorized the creation of a Protection and Advocacy for Assistive Technology (PAAT) program in each state. The purpose of these programs is to provide legal representation and other advocacy to individuals with disabilities seeking AT devices and services.⁶⁴ During fiscal years (FYs) 2009 and 2010, PAAT programs reported serving a combined 2,255 and 2,317 individuals with disabilities, respectively. Thirty-seven percent of the 2009 cases and 34 percent of the 2010 cases entailed health care issues, typically involving Medicaid, Medicare, or private insurance (U.S. Department of Education, 2014).

In fact, legal representation has been necessary to secure Medicaid coverage and approval of various medical supplies, equipment, and AT over the past three decades. For example, Medicaid beneficiaries in Arizona, Florida, Louisiana, Missouri, and Rhode Island have litigated their right to access incontinence briefs through the home health medical supply benefit.⁶⁵ In Indiana and New York, Medicaid beneficiaries have litigated the issue of access to compression stockings and orthopedic shoes.⁶⁶ Lawsuits have also been brought in Louisiana, Pennsylvania, Rhode Island, and Vermont to obtain hearing aids and eyeglasses.⁶⁷

For individuals requiring more advanced technology, beneficiaries in Connecticut, Florida, Georgia, Mississippi, Texas, and Utah have had to challenge various barriers to coverage for SGDs in court.⁶⁸ The same is true for complex custom wheelchairs, which have been the subject of

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⁶⁴ 29 USC § 3001 et seq.

⁶⁵Alvarez v. Betlach, 572 F. App’x 519 (9th Cir.) cert. denied, 135 S. Ct. 870 (2014); S.D. ex rel. Dickson v. Hood, 391 F.3d 581 (5th Cir. 2004); Hiltibran v. Levy, 793 F. Supp. 2d 1108 (W.D. Mo. 2011); Smith v. Benson, 703 F. Supp. 2d 1262 (S.D. Fla. 2010); Ekloff v. Rodgers, 443 F. Supp. 2d 1173, 1181 (D. Ariz. 2006); Bristol v. R.I. Dept. of Hum. Serv., 1997 WL 839884 (R.I. Super. January 30, 1997).

⁶⁶Davis v. Shah, No. 14-543-cv (2d Cir. 2016); Davis v. Shrader, 687 N.E.2d 370 (Ind. App. 1997).

⁶⁷Jasset v. R.I. Dept. of Hum. Serv., 2006 WL 2169891 (R.I. Super. July 31, 2006); Ledet v. Fischer, 638 F. Supp. 1288 (M.D. La. 1986); Simpson v. Wilson, 480 F. Supp. 97 (D. Vt. 1979); White v. Beal, 555 F. 2d 1146 (3d Cir. 1977).

⁶⁸Conley v. Dept. of Health, 287 P.3d 452 (Utah. Ct. App. 2012); William T. ex rel. Gigi T. v. Taylor, 465 F. Supp. 2d 1267 (N.D. Ga. 2000); DeSario v. Thomas, 139 F. 3d 80 (2nd Cir. 1998), cert. granted, vacated and remanded sub. nom., Slekis v. Thomas, 525 U.S. 1098 (1999); Fred C. v. Texas Health and Human Services Commission, 924 F. Supp. 788 (W.D. Tex. 1996) and 988 F. Supp. 1032 (W.D. Tex. 1997), affirmed per curium, 167 F. 3d 537 (5th Cir. 1998); Hunter v. Chiles, 944 F. Supp. 914 (S.D. Fla. 1996); Myers v. State of Mississippi, 3:95 CV 185 LN (Slip Op. S.D. Miss. 1995); Meyers ex rel. Walden v. Reagan, 776 F. 2d 241 (8th Cir. 1985).

litigation in at least six states (Florida, Minnesota, New York, North Carolina, Pennsylvania, and Texas).⁶⁹

While challenges remain, CMS’s recent revisions to the Medicaid home health regulation are a critical step in addressing the barriers to obtaining medical equipment and AT devices that Medicaid beneficiaries with disabilities often face. Timely implementation and enforcement of the new federal home health regulation may reduce or eliminate many of these barriers. These new requirements, in conjunction with medical necessity determinations that reflect current standards of practice, should increase access to the AT devices individuals with disabilities may require to sustain their health, support their independence, and strengthen their quality of life.

Medicare

Medicare Eligibility

Medicare is a federal health insurance program administered by CMS. More than 55 million people participate in Medicare, including

• individuals aged 65 and older;
• individuals receiving Social Security Disability Insurance (SSDI) payments (including many adults with developmental disabilities who receive SSDI on the earnings record of a parent, and many who receive SSDI as widows or widowers) or railroad retirement benefits based on disability⁷⁰;
• persons with end-stage renal disease⁷¹; and
• certain Medicare-qualified federal employees (CMS, 2015b).⁷²

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⁶⁹Koenning v. Suehs, 897 F. Supp. 2d 528, 552-53 (S.D. Tex. 2012) vacated sub nom. Koenning v. Janek, 539 F. App’x 353 (5th Cir. 2013); Correa v. North Carolina Department of Health and Human Services, 09-CVS-18112 (Gen. Ct. of Justice, Sup. Ct. Div. 2010); Matter of Sorrentino v. Novello, 295 A.D.2d 945 (NY AD 4th Dept. 2002); Esteban v. Cook, 77 F. Supp. 2d 1256 (S.D. Fla. 1999); HHSC v. Lukefahr, 2016 WL 5874871 (October 6, 2016); Johnson v. Minn. Dept. of Human Serv., 565 N.W.2d 453, 456 (Minn. App. 1997); Starkweather v. Wing, 242 A.D.2d 961, 962 (NY AD 4th Dept. 1997); Matter of Johnson v. Wing, 237 A.D.2d 960 (NY AD 4th Dept. 1997); Matter of Ray v. Wing, 238 A.D.2d 958 (NY AD 4th Dept. 1997); Gartz v. Wing, 236 A.D.2d 890 (N.Y.A.D. 4th Dept. 1997); Dobson v. Perales, 175 A.D.2d 628 (N.Y.A.D. 4th Dept. 1991); Baker v. Commonwealth of Pa. Dept. of Pub. Welfare, 502 A.2d 318 (Pa. Commw. 1985).

⁷⁰ SSDI beneficiaries are eligible for Medicare 24 months after SSDI eligibility. This 24-month waiting period is waived for individuals diagnosed with amyotrophic lateral sclerosis (ALS). SSA Program Operations Manual System (POMS) DI 45605.001.

⁷¹ 42 USC § 1395c.

⁷² POMS HI 00801.400 et seq. During this extended coverage period, an individual can receive cost-free Part A coverage and optional Part B and Part D coverage, with premiums and

As with Medicaid, there are extended Medicare work incentive programs for certain beneficiaries. For example, working SSDI recipients who have completed their 9-month trial work period may continue to receive Medicare for an additional 93 months or more in some cases, even when their SSDI cash benefits have ended (SSA, 2015b,c). This extension is particularly important when Medicare is the only source of health care, including AT, for working beneficiaries.

Medicare Benefits

The Medicare program consists of four parts. As explained below, Parts A, B, and D provide a distinct group of benefits for eligible beneficiaries, while Part C allows Medicare beneficiaries to receive their health care through private managed care organizations.⁷³

Medicare Part A, often called hospital insurance, generally covers inpatient hospital care, skilled nursing facility care, home health services following hospitalization, and hospice care (SSA, 2015d). Most beneficiaries pay no premium for Part A coverage but may pay a deductible and copayments for these services.

Medicare Part B, or supplemental medical insurance, covers outpatient services, including physician services, therapy services, DME, prosthetic and orthotic devices, and home health services (SSA, 2014c). To enroll in Part B, beneficiaries must pay a monthly premium ($134.00 if newly enrolled in 2017, but less if receiving Medicare prior to 2017). Part B beneficiaries are also responsible for certain deductibles and copayments. State Medicaid programs may pay the Part B premiums and other costs for some beneficiaries with limited incomes through Medicare Savings Programs, including the Qualified Medicare Beneficiaries, Specified Low-Income Medicare Beneficiaries, and Qualified Individual programs (Center for Medicare Advocacy, n.d.-b; SSA, 2011). Eligibility for these three programs is set at 100, 125, and 135 percent of the federal poverty level, respectively, with corresponding countable income limits of $990, $1,188, and $1,337 for a one-person household in 2016. The state Medicaid agency must use an SSI budgeting methodology in determining countable income, meaning, for example, that the first $65 plus 50 percent of remaining earned income exclusion applies.

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other out-of-pocket expenses. Following this extended eligibility period, coverage through the Premium Medicare for the Working Disabled program can be purchased.

⁷³ Note that Medicare Supplemental Insurance (Medigap) policies are designed to cover some health care costs associated with original Medicare (e.g., coinsurance, deductibles, copayments); these policies may be purchased from a private insurer (CMS, 2017). However, Medigap policies do not cover items that are not covered by original Medicare (e.g., mobile augmentative and alternative communication technologies, hearing aids) (CMS, 2017).

Medicare Part C, also called Medicare Advantage plans, is an optional benefit. It allows beneficiaries to choose to purchase a managed care option from Medicare-approved private insurers instead of receiving traditional fee-for-service benefits provided by Medicare Parts A and B (SSA, 2015e). Although most beneficiaries participate in the original Medicare program under Parts A and B, about 30 percent chose the Part C option in 2015 (CMS, 2015b). Individuals may prefer the Part C option if they are able to pay an extra monthly premium to receive a broader range of outpatient services than those available through original Medicare. Hearing aids, for example, an item that is otherwise excluded from Medicare coverage, may be available through a Medicare Advantage plan, depending on the plan selected.

Medicare Part D, the prescription drug benefit, has been a part of the program since 2006. Part D is not administered by the federal government, but by various private health insurance plans. Part D generally is not relevant to the acquisition of AT.

Medicare Coverage of Assistive Technology: DME and Prosthetic Devices

DME Medicare covers DME, including AT devices such as powered wheelchairs and SGDs, through the Part B benefit.⁷⁴ Medicare defines DME as equipment that

• can withstand repeated use;
• effective after January 1, 2012, has an expected life of at least 3 years;
• is primarily and customarily used to serve a medical purpose;
• generally is not useful to a person in the absence of an illness or injury; and
• is appropriate for use in the home.⁷⁵

Prosthetic devices Medicare also covers certain AT as prosthetic devices, defined as

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⁷⁴ 42 USC §§ 1395x(n), 1395x(s)(6).

⁷⁵ 42 CFR § 414.202.

Medicare Claims Processing

Unlike Medicaid, original Medicare typically does not provide prior approval of DME.⁷⁷ One exception is the Prior Authorization of Power Mobility Devices Demonstration Project, which CMS implemented in September 2012 and which continues through August 2018. Limited to beneficiaries in 19 states, this demonstration project provides a prior authorization process for those seeking scooters or certain powered mobility devices.⁷⁸

In original Medicare, one of four Durable Medical Equipment-Medicare Administrative Contractors (DME-MACs) processes Durable Medical Equipment Prosthetics, Orthotics, and Supplies claims for a defined geographic area or “jurisdiction” (see CMS, 2016g). This claims process begins when the individual takes delivery of an item from the DME supplier. Once the item has been delivered, the supplier submits a claim to the applicable DME-MAC for payment.⁷⁹ For the beneficiary, a critical issue is whether the supplier “accepts assignment.” Accepting assignment means the supplier agrees to accept the Medicare-approved payment for the item. Medicare pays 80 percent of this approved amount, with the beneficiary paying the remaining 20 percent. For example, if Medicare pays for a powered wheelchair with an approved rate of $10,000, Part B will pay $8,000, and the beneficiary will be responsible for a $2,000 copayment. For individuals who qualify for the Qualified Medicare Beneficiaries program, state Medicaid agencies pay this copayment (SSA, 2011). This is particularly beneficial for low-income Medicare beneficiaries who otherwise could not afford the copayment for certain AT devices.

In some instances, the Medicare-approved amount is less than what the supplier typically charges for an item of DME. If the supplier refuses to accept this rate, the beneficiary may owe far more than 20 percent of the purchase price.⁸⁰ Moreover, if the supplier is not confident that the

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⁷⁶ 42 USC § 1395x(s)(8-9).

⁷⁷ DME items provided to enrollees in a Medicare Advantage plan typically receive prior authorization from the private company administering the plan.

⁷⁸ For a listing of states participating in this demonstration project and other information, see CMS (2015c).

⁷⁹ Even though there is generally no prior authorization process for DME in original Medicare, a beneficiary can seek an Advance Determination of Medical Coverage (ADMC) (see CMS, 2016f, Section 5.16). Although a positive ADMC does not guarantee approval of funding by the DME-MAC, it does make that a likely result—something to discuss with the equipment supplier.

⁸⁰ For an excellent summary of these and other claims issues, see Center for Medicare Advocacy (n.d.-a).

DME-MAC will ultimately agree that the item is available for payment, the supplier may refuse assignment, meaning that the individual must agree to pay for the item if Medicare does not pay the claim. In Medicare Advantage plans, claims are submitted to the managed care organization in which the individual is enrolled. In most instances, the DME item has received prior authorization from the plan, so there is less risk of nonpayment by Medicare.

National and Local Coverage Determinations

CMS maintains a National Coverage Determinations (NCD) Manual, which includes a “Durable Medical Equipment Reference List” (CMS, 2005b). This list identifies more than 100 DME items and indicates whether each (1) is “covered,” and under what circumstances it can be approved; (2) must be “denied”; or (3) is subject to coverage criteria listed elsewhere within the NCD Manual. For example, coverage criteria for SGDs are in section 50.1, while those for mobility assistive equipment (MAE) are in section 280.1. In addition to NCDs, the DME-MACs may adopt LCDs that apply to specific DME items. A summary of coverage policy for the four categories of selected equipment follows.

Powered wheelchairs, including those with a seat elevator, tilt-in-space, or integrated standing system Medicare coverage of powered wheelchairs is governed by NCD 280.3 (CMS, 2005c). At the regional level, powered wheelchairs are covered as “power mobility devices” pursuant to LCD 33789, an LCD that has been adopted by all four DME-MACs (see CMS, n.d.-b). NCD 280.3, effective May 5, 2005, states, in part:

This national policy sets forth the referenced clinical criteria for MAE coverage, including a series of nine questions geared to connecting the beneficiary’s mobility limitation to an inability to complete MRADLs in the home; the ability to use other MAE, a cane or walker, or a caregiver to adequately address any limitations; the suitability of the home environment for use of the MAE; the ability to use a power operated vehicle/scooter

rather than a powered wheelchair to complete MRADLs; and the need for any additional features a powered wheelchair offers to accomplish one or more MRADLs.

The goal of this policy is not to ensure that individuals will attain functional mobility in or outside the home. Under NCD 280.3, Medicare will not pay for a powered wheelchair needed for reasons other than to accomplish MRADLs or for one to be used outside the home. This outright exclusion of MAE, including powered wheelchairs, when needed only outside the home greatly limits the ability of many Medicare beneficiaries to participate in the workforce. Notably, once a powered wheelchair has been approved, neither the NCD nor the LCD precludes its use outside the home to go to and from work or to accomplish work-related tasks.⁸¹

LCD L33789 governs the day-to-day decision making of the four DME-MACs and includes more-detailed policies than NCD 280.3. Specifically, this LCD sets forth criteria for approving Group 1, 2, and 3 wheelchairs for funding. Group 3 powered wheelchairs involve complex rehab technology and are often more expensive than Group 1 or 2 wheelchairs. Noridian, the DME-MAC for Jurisdiction D, explains the basic criteria governing Group 3 wheelchair coverage (Noridian Healthcare Solutions, 2016):

• The beneficiary’s mobility limitation must be due to a neurological condition, myopathy or congenital skeletal deformity.
• There must be a specialty evaluation performed by a licensed/certified medical professional, such as a physical therapist, occupational therapist, or physician who has specific training and experience in rehabilitation wheelchair evaluations that documents the medical necessity for the wheelchair and its special features.
• The wheelchair must be provided by a supplier that employs a RESNA-certified assistive technology professional (ATP) who specializes in wheelchairs and who has direct, in-person involvement in the wheelchair selection for the beneficiary.

Noridian further explains the additional criteria for Group 3 powered wheelchairs with either single or multiple power options:

• The beneficiary must require a drive control interface other than a hand or chin-operated standard proportional joystick (examples include but are not limited to head control, sip and puff, switch control); or

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⁸¹ See CMS (2005a, Part VII.B.8) (“CMS would like to reassure the community that the DME benefit category does not prevent beneficiaries from using their wheelchairs outside of the home.”).

• The beneficiary must meet coverage criteria for a power tilt or a power recline seating system and the system is being used on the wheelchair; or
• The beneficiary will use a ventilator which is mounted on the wheelchair.

Finally, Noridian states that Group 3 wheelchairs are reserved for “the severely impaired patient,” with diseases such as ALS or late-stage multiple sclerosis or spinal cord injuries resulting in quadriplegia. While a beneficiary must meet the threshold criteria discussed above (i.e., MAE needed to accomplish MRADLs in the home), a Group 3 powered wheelchair can greatly enhance one’s ability to get to and from work and to move about during the workday.

Under L33789, Group 4 wheelchairs are not covered as they “have added capabilities that are not needed in the home. Therefore . . . they will be denied as not reasonable and necessary.” Generally, a Group 4 wheelchair base is needed to support an integrated standing feature, making a standing powered wheelchair unavailable through Medicare. Although Group 5 pediatric wheelchairs are covered by Medicare, they are not commonly used by adult Medicare beneficiaries.

In summary, Medicare will pay only for wheelchairs that are required for an individual to accomplish MRADLs within the home. If an individual can navigate his or her home sufficiently to accomplish MRADLs without the use of a wheelchair, whether manual or powered, Medicare will not pay for one regardless of whether the individual requires one to participate in work or other activities outside of the home.⁸²

Myoelectric upper-extremity prostheses Medicare regulations authorize Part B payment for certain equipment categorized as prosthetic devices, including

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⁸² The discussion in this section does not include the Medicare competitive bidding process for wheelchair coverage, legislated by Congress with a phase-in period beginning in 2008. A thorough discussion of this requirement appears in GAO (2016).

⁸³ 42 CFR §§ 410.36(a), 414.202.

CMS policy also lists artificial limbs as an example of prosthetic devices (CMS, 2016b, Section 10.1.2; CMS, 2016d, Section 120A).

Presently, no NCD or LCD governing upper-body prostheses generally or myoelectric devices specifically appears to exist.⁸⁴ Absent a specific policy, CMS must take a case-by-case approach to approving specific devices. In general, Medicare coverage and payment are contingent on a determination that

• A service is in a covered benefit category;
• A service is not specifically excluded from Medicare coverage by the Act; and
• The item or service is “reasonable and necessary” for the diagnosis or treatment of an illness or injury, to improve functioning of a malformed body member, or is a covered preventive service. (CMS, 2016c, Section 10.2)⁸⁵

Because a myoelectric arm or hand is listed as a covered prosthetic device and is not specifically excluded by the Medicare Act, Medicare funding theoretically will depend on whether the item is deemed medically necessary, that is, reasonable and necessary to improve functioning of the malformed or missing limb. In the absence of prior authorization in original Medicare, a prosthetics supplier likely would not deliver this item and accept assignment unless there was a track record of adequate payment for such devices.

If the Medicare beneficiary is enrolled in a Medicare Advantage plan, the supplier must work with the beneficiary and his or her physician to fully document medical necessity for the device (CMS, 2016c, Section 10.12.3).⁸⁶ In such cases in which there is no NCD or LCD to guide the decision-making process, CMS guidelines allow Medicare Advantage plans to make coverage determinations by applying an objective process based on authoritative evidence (CMS, 2016c, Section 90.5). For example, Regence Medicare Advantage Plan, covering Oregon, Utah, Idaho, and parts of Washington State, provides specific criteria for determining medical necessity for a myoelectric upper-limb prosthesis. Key criteria include the following:

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⁸⁴ Billing codes do exist for several myoelectric limb replacements. See, for example, billing codes L6935, L6955, and L6967 on the Noridian DME-MAC website (Noridian Healthcare Solutions, 2017).

⁸⁵ Although this manual is specific to Medicare Advantage plans, the policy applies to original Medicare as well.

⁸⁶ Notably, Medicare policy does require that a “[Medicare Advantage] plan . . . provide all brands and manufacturers of Prosthetics and Orthotics without limitation.”

• The patient has an amputation or missing limb at the wrist or above (forearm, elbow, etc.); AND
• Standard body-powered prosthetic devices cannot be used or are insufficient to meet the functional needs of the individual in performing activities of daily living; AND
• The remaining musculature of the arm(s) contains the minimum microvolt threshold to allow operation of a myoelectric prosthetic device, as demonstrated by functional testing using a physical or computer model prosthesis; AND
• The patient has demonstrated sufficient neurological and cognitive function to operate the prosthesis effectively; AND
• The patient is free of comorbidities that could interfere with the functioning of the prosthesis (neuromuscular disease, etc.); AND
• Functional evaluation by a qualified professional (e.g., prosthetist) indicates that with training, use of a myoelectric prosthesis and associated components is necessary to meet the functional needs of the individual (e.g., automatic grasp features; microprocessor control features; or other components to aid gripping, releasing, holding, and coordinating movement of the prosthesis) when performing activities of daily living. This evaluation should consider the patient’s needs for control, durability (maintenance), function (speed, work capability), and usability. Both of the following criteria must be met:
  • The device is necessary for the patient to perform instrumental activities of daily living, including job functioning.
  • The device is not primarily for the purpose of allowing the patient to perform leisure or recreational activities. (Regence, 2016, pp. 3-4)

Similar policies have been established by other Medicare Advantage plans and other insurers (see Aetna, 2016b; BlueCross BlueShield of Tennessee, 2016). Although original Medicare has not developed detailed guidance for these devices, the guidance used by Medicare Advantage plans provides a good model. This is particularly important given that Medicare covers these devices when medically necessary, including when necessary for “job functioning.”

Hearing aids Unlike Medicaid, original Medicare has express coverage exclusions, with the noncoverage of hearing aids being incorporated in the Medicare Act.⁸⁷ Although Medicare Part B covers diagnostic hearing and balance exams if ordered by a physician or other medical provider, it does not cover “hearing exams, hearing aids, or exams for fitting hearing aids” (CMS, n.d.-d). In addition, aside from hearing exams ordered by a physician

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⁸⁷ 42 USC § 1395y(a)(7).

or nonphysician medical practitioner, Medicare does not cover services provided by audiologists (CMS, 2016a), “such as counseling about hearing test results, conducting a functional communication assessment, management planning, or auditory rehabilitation, even though these services are within the scope of practice for audiologists” (NASEM, 2016, p. 210). Although many have urged Congress to revisit Medicare’s exclusion of hearing aids in light of the high incidence of hearing loss among older Americans, combined with their underutilization of hearing aids (NASEM, 2016; Richtman, n.d.; Whitson and Lin, 2014), original Medicare continues to deny coverage of this DME. Lack of access to hearing aids is a barrier to independent living and successful employment (Dalton et al., 2003; Kochkin, 2010). As discussed earlier, Medicare Advantage plans may cover hearing aids, depending on the plan selected.

Speech-generating devices Medicare has covered SGDs since 2001 (CMS, 2015a). NCD 50.1 describes SGDs as “speech aids that provide an individual who has a severe speech impairment with the ability to meet his functional speaking needs.” As published in 2001, the policy states that an SGD can include devices with “software that allows a laptop computer, desktop computer or personal digital assistant (PDA) to function as a speech generating device,” but it notes that nondedicated laptops or other devices that can be used for personal computing are not covered because they are not primarily medical in nature—a policy similar to that of some state Medicaid programs, as discussed above.

This allowance for use of a laptop or PDA, or more recently a tablet computer, combined with the policy precluding the funding of nondedicated devices, resulted in the long-standing strategy discussed above by which the supplier delivered the laptop or tablet with the personal computing functions locked. In fact, CMS confirmed that computer- and PDA-based SGDs were covered when they had been modified to run only SGD software (see Hoyer, 2001). As with some state Medicaid programs, however, nothing in the original CMS policy or its follow-up letter prohibited the Medicare beneficiary from paying to unlock or activate personal computing functions after receiving the device.

Effective July 29, 2015, CMS revised NCD 50.1 to support Medicare coverage of both purpose-built and off-the-shelf computer-based SGDs (CMS, 2014b). As a result, the personal computing functions do not have to be locked when the item is delivered. However, the revised policy makes clear that Medicare will not fund a laptop or tablet from any commercial source and separately purchased SGD software. The SGDs provided under this revised policy still must be provided for the primary purpose of speech generation, and SGD manufacturers and suppliers remain responsible for

ensuring that their products meet CMS’s expectations.⁸⁸ In particular, an SGD must meet Medicare’s DME criteria, including the requirement that it be “suitable for use in the home.” This requirement should not create a barrier to device acquisition as any individual who needed an SGD to achieve functional communication outside the home would also have a need for in-home communication. Thus, Medicare is a viable funding option for beneficiaries who require SGDs to maximize their employability.

Appealing Medicare Decisions

The appeal process for Medicare DME denials may vary depending on whether an individual receives original Medicare or is enrolled in a Medicare Advantage plan. The time periods for requesting an appeal also vary depending on the level at which the most recent decision was made. Notably, there are potentially five levels of appeal available to Medicare beneficiaries: redetermination by the DME-MAC, reconsideration by a qualified independent contractor, hearing before an administrative law judge, review by the Medicare Appeals Council, and judicial review in a United States District Court (CMS, 2016e). As with other benefit programs, a beneficiary’s best chance of prevailing is if he or she is represented by an attorney or advocate who is experienced in health law (Tergesen, 2012).

Veterans Health Administration

The VHA is a comprehensive, integrated health care system that serves more than 8.9 million veterans each year (VA, n.d.-d). Its mission is to “honor America’s Veterans by providing exceptional health care that improves their health and well-being” (VA, n.d.-d).

Eligibility for VHA Benefits

Any active duty service member who is “separated under any condition other than dishonorable” potentially qualifies for U.S. Department of Veterans Affairs (VA) health care benefits (VA, n.d.-a).⁸⁹ A minimum duty requirement applies to “most Veterans who enlisted after September 7, 1980, or entered active duty after October 16, 1981” (VA, n.d.-a). These veterans “must have served 24 continuous months or the full period for which they were called to active duty in order to be eligible”; however,

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⁸⁸ For a more detailed discussion of the implications of the revised NCD 50.1, see Golinker (2015).

⁸⁹ Active duty service members typically receive health benefits from the U.S. Department of Defense through TRICARE.

there are a number of exceptions to this requirement, leading the VA to encourage “all Veterans to apply so that [it] may determine their enrollment eligibility” (VA, n.d.-a). For example, combat veterans from Operation Enduring Freedom, Operation Iraqi Freedom, and Operation New Dawn “can receive cost free medical care for any condition related to their service in the Iraq/Afghanistan theater for five years after the date of their discharge or release” (VA, n.d.-b).

Rehabilitation and Prosthetic Services

The VA’s Rehabilitation and Prosthetic Services “is responsible for the national policies and programs for medical rehabilitation, prosthetic and sensory aids services that promote the health, independence and quality of life for Veterans with disabilities” (VA, 2016a). Rehabilitation and Prosthetic Services encompasses a number of national programs relevant to the categories of assistive products and technologies discussed in this report, including physical medicine and rehabilitation, prosthetics and sensory aids service, and audiology and speech pathology. “Rehabilitation and Prosthetic Services is committed to providing the highest quality, comprehensive, interdisciplinary care; the most advanced medical devices and products that are commercially available; and, promoting advancements in rehabilitative care and evidence-based treatment” (VA, 2016a).

Coverage of Selected AT Devices

Wheeled and seated mobility devices Wheelchairs and accessories represented the fifth-largest category of prosthetics and sensory aids provided to veterans in FY 2015. In that year, wheelchair accessories (e.g., custom seats, cushions, back rests, batteries) accounted for the largest set of expenditures within the wheeled mobility category. Lifts that include the wheelchair and scooter lifts represent the next-largest category of expenditure. The VA provides motorized wheelchairs when indicated, as well as manual and customized manual chairs. The VA system can provide wheelchair or scooter lifts to help ensure that veterans can get to their medical appointments and participate in their own health care (Nechanicky, 2016).

The VHA Handbook provides updates on VHA procedures for providing wheelchairs and special mobility devices to veteran beneficiaries. A basic or stock wheelchair is provided to VA beneficiaries who need a wheelchair but have the ability to stand and transfer, or have a disability that is temporary (VA, 2008). Lightweight or ultra-light wheelchairs may be considered for beneficiaries who meet the criteria for normal wheelchairs. However, modifications in the height of the seat and back; in the angle of the seat,

back, and footrests; and in the wheel chamber must be considered for ultralight wheelchair users (VA, 2008). Sport model wheelchairs are considered for beneficiaries who have disabilities “resulting in anatomical loss, or loss of use, of at least one lower extremity which prohibits their participation in normal sports activities” (VA, 2008, p. 3).

Wheelchair replacements may be authorized for a variety of reasons, although not solely because a new model has been manufactured. Replacement wheelchairs may be authorized if loss or destruction occurs that is beyond the control of the veteran, when a wheelchair no longer meets the patient’s needs because of change in his or her medical condition, or when the wheelchair prescription has changed (VA, 2008).

If a wheelchair requires repair, a prosthetic representative or designee will determine whether it is more cost-effective to repair or replace the wheelchair. Repair rather than replacement is required if the cost of repair is less than half that of replacement (VA, 2008, p. 5). Various sources may be used to obtain wheelchair repairs, such as VA Form 10-2501, a Prosthetic Service Card, a Purchase Card, or local VA repair facilities. The Prosthetic Service Card lists preauthorized repairs, and if repairs exceed this limitation, they must be approved by the VA beneficiary’s prosthetic representative (VA, 2008). The cost of wheelchair repair without prior authorization for a veteran will be paid if “obtaining the repairs locally was necessary, expedient, and not a matter of preference over using authorized sources” and if “it is determined that the costs were not excessive or unreasonable” (VA, 2008, p. 5). If damage to the wheelchair was intentional or caused by negligence, the beneficiary will be responsible for the cost of repair.

Upper-extremity prostheses More than 50,000 individuals with major limb loss receive care through the VA (Office of Rehabilitation Services, 2016). The Amputation System of Care (ASoC) is a special program that provides comprehensive, lifelong care and care coordination to eligible veterans and, in partnership with the U.S. Department of Defense, service members with limb loss due to injury or disease. The program is designed to provide specialized expertise and the most up-to-date clinical care, prosthetic technology, and rehabilitation. The Commission on Accreditation of Rehabilitation Facilities (CARF) offers specialty accreditations to programs providing distinguished amputation care and expertise; approximately 38 percent of programs recognized by CARF (24 programs) are VA Medical Centers.

Access to care is based on such factors as level of services required to maximize function, health of the residual and contralateral limb, geographic proximity to the patient’s home, and the patient’s personal preference (Office of Rehabilitation Services, 2016). Telehealth amputation clinics and other measures are aimed at ensuring access to appropriate clinical care

and prosthetic devices regardless of the patient’s geographic location (Office of Rehabilitation Services, 2016).

Hearing aids Hearing loss, most commonly high-frequency sensorineural, is among the top three service-connected disabilities (Office of Rehabilitation Services, 2015a). All veterans with VHA benefits are eligible to receive comprehensive audiology services, including hearing screenings, diagnostic hearing evaluations, hearing aid fittings (where applicable), and aural rehabilitation, along with other services (Office of Rehabilitation Services, 2015a). The VA employs more than 1,100 audiologists and is the largest employer of audiologists in the United States. Veterans who are eligible for VA health care are eligible for a hearing aid(s) if it “assists them in their ability to participate in their own health care,” regardless of whether their hearing loss is service-connected (Nechanicky, 2016). In particular, the VA will provide hearing aids to veterans “with a hearing impairment resulting from diseases or the existence of another medical condition; those with significant functional or cognitive impairment evidenced by deficiencies in the ability to perform activities of daily living; those who have hearing impairment or combined visual and hearing impairments severe enough that it interferes with their ability to participate actively in their own medical treatment; and veterans who have a service-connected hearing disability that contributes to loss of communication ability” (VA, n.d.-e).

Augmentative and alternative communication devices The VA provides comprehensive speech and language pathology services, including “the screening, evaluation, and treatment of a broad range of communication and swallowing disorders” (Office of Rehabilitation Services, 2015b). Examples of available assistive technologies include picture boards coupled with a pointer, applications for tablets or smartphones, and SGDs that can be accessed by an eye gaze switch (Office of Rehabilitation Services, 2015b).

VA speech-language pathologists provide services to veterans and service members of all ages who have speech, language, and swallowing disorders resulting from numerous medical conditions, including brain injury, progressive neurological disorders, oral and laryngeal cancer, and spinal cord injury and dysfunction. The VA employs more than 400 speech-language pathologists (Office of Rehabilitation Services, 2015b). Nearly 356,000 patient encounters involving VA speech-language pathologists were reported in FY 2014 (Office of Rehabilitation Services, 2015b). These pathologists provide services in outpatient and inpatient settings as well as in patients’ homes. Telehealth services are also provided to patients.

Geographic Barriers to Care

The VA recognizes geographically based disparities in access to health care services that affect veterans living in rural communities in particular, such as lack of providers and longer travel distances. In an effort to improve access to care, it has implemented Veterans Transportation Services in more than 80 rural communities nationwide (VA, n.d.-c). The program provides free transportation to and from VA-authorized medical care facilities. As noted above, the VA also provides telehealth options, for example, within its ASoC, audiology, and speech-language pathology programs (Office of Rehabilitation Services, 2015a,b, 2016).

Generally, VA health care is delivered within VA facilities. However, exceptions are made to allow veterans to receive care in non-VA facilities, “such as when VA facilities/services are not feasibly available or cannot be economically provided to the Veteran” (VA, 2016b). In these circumstances, the VA may purchase non-VA care provided that “eligibility and other program criteria are met” (VA, 2016b).

Additionally, the Veteran’s Choice program is a new temporary benefits program that allows eligible veterans to receive care outside of the VA if they live more than 40 miles from the closest VA medical facility; if they need to travel to that facility by plane or boat; if travel is excessively burdensome for other reasons; or, for veterans from states without full-service VA medical centers, if they live more than 20 miles from a full-service VA medical facility in another state (VA, 2015). Eligible veterans may also utilize the Veteran’s Choice program if they are told that they must wait more than 30 days for a needed appointment.

Special Education Programs as an AT Funding Source for Transition-Aged Youth

The Individuals with Disabilities Education Act (IDEA) guarantees, in every state, that all eligible children receive a free appropriate public education—at no cost to the child or the child’s parents—designed to meet their unique needs.⁹⁰ IDEA applies to eligible children aged 3 to 21, or until the child receives a regular high school diploma.⁹¹ Since the focus of this report is on the use of AT to achieve employment outcomes, the discussion in this section addresses the AT available to “transition-aged students”—in particular, AT that will support education, training, and/or the ultimate employment goal. IDEA requires that transition services begin no later than age 16.⁹²

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⁹⁰ 20 USC § 1400(d)(1)(A).

⁹¹ 34 CFR §§ 300.101, 300.102.

⁹² 20 USC § 1414(d)(1)(A)(viii).

Eligibility for Special Education Services and AT

To qualify for special education services, a child must have a disability, such as a speech, mobility, orthopedic, health, hearing or visual, intellectual, learning, or emotional disability, that requires the child to receive special education and related services.⁹³ Prior to the start-up of a child’s special education program, an individualized education plan (IEP) must be developed for that student, with the input of the student and parent(s). Any item or service the student will receive, including any AT device or service, must be included in the IEP.⁹⁴

Special education is defined as instruction specially designed to meet the unique needs of the child. Related services are defined as developmental, corrective, and other support services required to assist a student with a disability in benefiting from an education; they include occupational therapy, physical therapy, speech pathology, counseling, health services, and parent training.⁹⁵

IDEA⁹⁶ fully adopts the definitions of AT devices and services that first appeared in the Technology Related Assistance for Individuals with Disabilities Act in 1988,⁹⁷ known by many as the Tech Act and more recently as the AT Act⁹⁸:

The IDEA legislation and regulations require that the need for AT be considered for all students in developing their IEP.¹⁰⁰ All of the selected equipment referenced above and discussed below should meet the definition of an AT device as each is a piece of equipment, in some cases modified or customized, used to increase or maintain the functional capabilities of

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⁹³ 34 CFR § 300.8.

⁹⁴ 20 USC § 1414(d).

⁹⁵ 34 CFR § 300.34 & 39.

⁹⁶ 34 CFR §§ 300.5, 300.6.

⁹⁷ Public Law 100-407, former 29 USC §§ 2201 et seq.

⁹⁸ Congress reauthorized this legislation as the Assistive Technology Act of 1998 and later as the Assistive Technology Act of 2004, both codified at 29 U.S.C. §§ 3001 et seq.

⁹⁹ 29 USC §§ 3002(4) & (5).

¹⁰⁰ 20 USC § 1414(d)(3)(B)(v); 34 CFR § 300.324(a)(2)(v).

an individual with a disability. Importantly, even if the special education system does not purchase the AT in question, the availability of AT services will be important while the student remains in the public school program, particularly for training of the student and school staff, as noted below.

The AT used in schools ranges from low- to high-tech. Examples of the former include simple communication boards, highlighters, modified eating utensils, splints, and graphic organizers (Cook and Polgar, 2008). Examples of the latter include wheelchairs, electronic communication devices, and computers. Applying the principles of universal design for learning, secondary students with disabilities can benefit from various forms of educational technology to improve their academic outcomes. Universal design for learning is a framework used to remove barriers in teaching methods and curriculum materials (Rose and Meyer, 2002). Its central premise is that “curriculum should include alternatives to make it accessible and appropriate for individuals with different backgrounds, learning styles, abilities, and disabilities in widely varied learning contexts” (Rose and Meyer, 2002).

Izzo and colleagues (2009), for example, designed a study to examine the effects of using a text-to-speech support program on the achievement of seven high school students with a variety of disabilities (high-functioning autism, cognitive disability, emotional disability, learning disabilities) within an online transition curriculum in their resource room. All students in the study were reading below grade level according to the AIMSweb Maze reading assessment. A reversal design was used to measure the effects of the text-to-speech program in a 10-unit transition curriculum. Study results indicate that most students improved their reading comprehension and all improved their mean unit quiz scores on the transition curriculum with the use of the text-to-speech program. Importantly, the definition of AT services is very broad and encompasses an AT evaluation, “including a functional evaluation in the individual’s customary environment”; “selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing of assistive technology devices”; “training or technical assistance for an individual with disabilities, or, where appropriate, the family members, guardians, advocates, or authorized representatives of such an individual”; and “training or technical assistance for professionals (including individuals providing education and rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of individuals with disabilities.”¹⁰¹

IDEA also requires that students receive their special education assistance in the least restrictive environment appropriate to their needs.¹⁰²

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¹⁰¹ 29 USC § 3002(5).

¹⁰² 20 USC § 1412(a)(5).

This means that removal from regular education classes occurs only when a student cannot receive a free appropriate public education in regular classes even with “supplemental aids and services,”¹⁰³ which could include AT devices or services. When a student is removed from the regular educational environment for part of the day, he or she must still be educated with nondisabled peers to the extent possible.

Transition Services Requirement

No later than age 16, a child’s IEP must include a transition services plan.¹⁰⁴ Transition planning requires that schools develop long-range plans for students to prepare them for postschool life; begin to make connections with adult service providers while students are still in school; and look to others, such as the state VR agency, to provide services.

When a Special Education Program Is Required to Provide AT Devices and Services

In determining whether a special education program is likely to pay for an AT device or service, the key question is whether the AT is needed to ensure that the student receives a free appropriate public education. The decision must always be based on the individual needs of the student as determined by the participants in the IEP team meeting. AT can be approved if it is needed to assist the child in achieving meaningful educational progress, remaining in the least restrictive setting, or being prepared for the transition to adult life. AT should always be considered before a decision is made to place a student in a more restrictive setting.

Which of the Selected AT Devices Can Be Funded by the Special Education System

The U.S. Department of Education has made clear that there is no “approved list” of AT devices and services covered by IDEA.¹⁰⁵ Historically, the department had ruled that school districts were not required to provide a personal device that a student would require regardless of whether he or she were in school.¹⁰⁶ Because the definition of an AT device does not include this limitation, however, the department changed its position. It has

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¹⁰³ 20 USC § 1412(a)(5)(A).

¹⁰⁴ 20 USC § 1414(d)(1)(A)(viii).

¹⁰⁵ Office for Special Education Programs (OSEP) Policy Letter to D. Naon, 22 Individuals with Disabilities Education Law Report (IDELR) 888 (January 26, 1995).

¹⁰⁶ Policy Letter to Minsky, Education for the Handicapped Law Report (EHLR) 211:19 (April 7, 1978).

stated, for example, that a hearing aid is covered under the definition of an AT device. Therefore, if the child requires a hearing aid to receive a free appropriate public education, the district must provide it at no cost to the child or the child’s parents.¹⁰⁷

A number of practical matters need to be considered for each of the selected AT devices in the four categories discussed here. For example, the special education system need only fund AT required to achieve a free appropriate public education. This means it must fund not necessarily the most expensive AT, just that which works for the intended purpose. Should the school system deny a more expensive item, the student/family can appeal; however, time becomes a major factor for a transition-aged youth who may be graduating or otherwise leaving the public school system in the near future. Finally, the issue of school ownership can become the ultimate barrier to use of an AT device after the student leaves the public school system, since the school owns the device (see the section on ownership below).

A powered wheelchair with seat elevator, tilt-in-space, and integrated standing system meets the definition of an AT device. The use of a wheelchair could also meet the definition of related services, which encompasses transportation in and around school buildings and can involve specialized equipment.¹⁰⁸ Based on this definition, the U.S. Department of Education issued an opinion that if a wheelchair is required, the school district must provide the service at public expense and without charge, regardless of whether the parents possess a wheelchair or can obtain one through private insurance. However, the district is not required to provide the wheelchair for personal use while the student is not in school.¹⁰⁹ The reality, however, is that a school district would likely fund only the most basic manual wheelchair that would allow someone to push the child around the school. While a strong case could be made for a wheelchair the student could operate independently, thus enabling the child to acquire independent living skills as part of a transition services plan,¹¹⁰ at best a school might provide a very basic powered wheelchair. A special education program is unlikely to fund a powered wheelchair with expensive custom items such as those noted above.

A myoelectric prosthesis would meet the definition of an AT device. Since the prosthesis is attached to the limb through a prosthetic socket and is not a surgically implanted device (which is an exclusion), it would not

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¹⁰⁷ OSEP Policy Letter to P. Seiler, 20 IDELR 1216 (November 19, 1993); OSEP Policy Letter to J. Galloway, 22 IDELR 373 (December 22, 1994).

¹⁰⁸ 34 CFR § 300.34(c)(16).

¹⁰⁹ OSEP Policy Letter to J. Stohrer, 13 EHLR 213:211, 212 (April 20, 1989).

¹¹⁰ See 34 CFR § 300.43(a)(2).

be barred based on that exclusion.¹¹¹ Without this intervention, a child would be left to participate in school activities with a missing arm or hand, arguably needing this AT to achieve a free appropriate public education. However, the U.S. Department of Education does not appear to have addressed the issue of a child’s needing this kind of upper-body prosthesis.

There appears to be only one court case, a 2011 decision of the U.S District Court in Connecticut, that addresses whether a child is entitled to a myoelectric arm funded through the special education program.¹¹² That case involved the parents of a 3-year-old girl (at the time of the due process hearing) who sought reimbursement for a myoelectric arm they had purchased. The parents appealed an adverse hearing decision to the court, which ruled for the school district. The case involved many unrelated issues, but on the issue of the right to funding of the myoelectric arm, the court held that it was not needed to achieve a free appropriate public education: “J.C. can obtain a meaningful benefit and appropriate educational services without such technology. The video of J.C. and testimony regarding J.C.’s ability to perform tasks with or without the myoelectric arm, demonstrates that the myoelectric arm is not necessary to provide a [free appropriate public education].”

This decision reinforces an important principle of special education law. Even if an item meets the definition of an AT device, it need be funded by the school district only if necessary to achieve a free appropriate public education. With different facts, the court might have reached a different conclusion. Still, any AT device a school might provide to address the child’s missing arm or hand might not be in the class of devices of an expensive myoelectric prosthesis.

Binaural hearing aids also meet the definition of an AT device. As noted above, the U.S. Department of Education has stated that a school district must provide a hearing aid, at no cost to the student or parents, if needed to receive a free appropriate public education. This policy would help a student obtain a basic hearing aid in order to benefit from his or her education. However, it is unlikely that a school would fund the more expensive binaural hearing aids to enable the student to communicate fully in a range of other environments outside of school. A case could be made for a child to receive the more expensive binaural hearing aids if this would ensure that the child could hear enough of the content from lectures and classroom discussions to benefit from his or her education.

SGDs are particularly important in the special education context. They

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¹¹¹ See 34 CFR § 300.34(b), providing that related services do not include surgically implanted devices, such as cochlear implants.

¹¹² See J.C. ex rel. C. v. New Fairfield Board of Education, 2011 Westlaw 1322563 (D. Conn. 2011).

meet the definition of an AT device as a supplementary aid or a special education or related service.¹¹³ If such a device is a student’s only effective means of communicating with teachers and peers, it will ensure that he or she can participate effectively in the regular classroom.¹¹⁴ If specialized software or training in how to use the SGD is necessary, it would represent an AT device or service, respectively, and could also be approved by the special education system.¹¹⁵ Finally, to fully learn to use the device, benefit from its use, and develop communication abilities, the student should be allowed to take the device home, despite any increased chances of damage to this expensive item.¹¹⁶ A dual-purpose laptop or tablet that is used as an SGD would become particularly important if the student were transitioning to higher education, and it could be funded by the special education system to ensure that the student would benefit from the special education program and could prepare for the transition to college.

The Right to an Administrative Hearing If an AT Device or Service Is Denied

Under IDEA, parents have the right to request an impartial hearing to appeal actions taken by a school district.¹¹⁷ At the hearing, the parents have the right to be represented by an attorney or other person with specialized training to compel the attendance of witnesses, to present evidence, and to cross-examine witnesses.¹¹⁸ The decision of the hearing officer is final unless there is an appeal. States have the option to create a second, state level of administrative review.¹¹⁹ In that case, either the family or the school district has the right to file an appeal to the state.¹²⁰ Following the hearing decision or state-level decision, if applicable, either the family or the school district has the right to appeal to state or federal court.¹²¹

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¹¹³ 34 CFR § 300.105(a).

¹¹⁴ See School Board of Independent School District No. 11, Anoka-Hennepin v. Pachl, 36 IDELR 263 (D. Minn. 2002) (in awarding compensatory education for delays in providing an SGD, the court noted that the student did not receive a free appropriate public education because she was “bereft of the ability to communicate”).

¹¹⁵ 34 CFR §§ 300.5 & 300.6.

¹¹⁶ See 34 CFR § 300.105(b) (allowing special education students to take AT devices home when doing so is necessary to ensure that they benefit from their education).

¹¹⁷ 20 USC § 1415(b)(6).

¹¹⁸ 20 USC § 1415(f).

¹¹⁹ 20 USC § 1415(i)(1)(B).

¹²⁰ 20 USC § 1415(g).

¹²¹ 20 USC § 1415(i)(2).

The Issue of Ownership

The question of who owns an AT device is a major one for the transition-aged student. Ordinarily, when a school special education program purchases equipment, it retains ownership. This means that when a student graduates or otherwise completes his or her special education studies and leaves the public school program, an AT device provided to that student will be returned to the school. For this reason, it is important that the student and family consider one of the following strategies if the AT will be important during the transition to higher education, postschool vocational training, or employment:

• Focus on another funding source, such as Medicaid or the state VR program, for purchase of the device or any replacement device that is needed during the last few years of school.
• Determine whether the school has a policy that provides for selling the used AT device, at a discounted rate, either to the student or to the state VR agency to support the student.

Neither IDEA nor the federal VR laws prohibit a VR agency from purchasing an AT device outright for a student who is still enrolled in high school or from purchasing it from the school at graduation. In fact, the U.S. Department of Education has indicated that it is permissible for a school district to transfer an AT device costing more than $5,000 to a state VR agency if the school district will no longer need the device for other students. The department envisions that most such devices will have been modified for the individual student and therefore will no longer be needed by the district when that student graduates. For devices costing less than $5,000, this limitation does not apply, meaning a district could transfer such a device to a VR agency regardless of whether it was needed for other students. The department agrees that coordination between school districts and state VR agencies to enable students with disabilities to continue using AT devices as they move from one program to another is an efficient, cost-effective means of facilitating the transition from school- to work-related services and fully supports this type of cooperation.¹²²

The Importance of AT Services for Evaluation, Education, and Training

As a practical matter, it is unlikely that transitioning students can rely on a special education program to fund AT devices they can retain after leaving school. This is particularly true for the very expensive custom

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¹²² OSEP Policy Letter to S. Goodman, 30 IDELR 611 (June 21, 1998).

powered wheelchairs, binaural hearing aids, and myoelectric prostheses discussed above. However, a special education program could still fund a comprehensive AT evaluation, for example, to determine which SGD system would work best for a student as he or she transitioned to college. If that system could be purchased, such as through Medicaid or a VR agency, training could be implemented through the student’s IEP to ensure that he or she would learn to use the device before going on to college. In fact, it is critical that any AT services be spelled out in the student’s IEP. The special education system also could be required to provide training, as an AT service, to the student and in some cases to school staff to allow the student to adapt to using an item such as a powered wheelchair with specialty features or a myoelectric prosthesis. To the extent that this AT service allowed the transitioning student to benefit fully from a recent AT acquisition, it would increase the likelihood of success in postschool training, higher education, and ultimately employment.

Transition from High School to the Workplace

According to a recent national survey of service providers conducted by researchers from the Aspen Institute Workforce Strategies Initiative (Jain et al., 2015), nearly 6.7 million young adults aged 16 to 24 are out of school and out of work. The July 2015 unemployment rate among young adults was 12.2 percent, more than double the national average of 5.3 percent (DOL and BLS, 2015). Unemployment is even more severe for young adults of minority groups, particularly African Americans, who have an unemployment rate of 20.7 percent. Moreover, the likelihood of poor employment outcomes tends to increase with severity of disability (Crisp, 2005; Meade et al., 2004; Ozawa and Yeo, 2006; Wagner et al., 2005), with being less well educated (Krause and Terza, 2006; Randolph and Andresen, 2004), and with living in a rural area (Kusmin, 2006). Nationally, almost half of youth who are African American, Hispanic, and Native American drop out of public schools each year (Bridgeland et al., 2006).

An additional challenge is that those who qualify often enroll in benefit programs and are more likely to become lifelong recipients of such programs. As studies of the SSA database indicate, the probability of young adults with disabilities aged 18 to 25 leaving the SSI or SSDI system to go to work is less than 0.1 percent (SSA, 2001). Given the challenges faced by youth with disabilities, successful transitions as well as supports for successful employment and/or vocational preparation are essential.

Overall, successful transition outcomes for ethnic minority youth with disabilities who live in poverty are very limited (Hasnain and Balcazar, 2009; Wells et al., 2003). The social needs of these youth, including limited English proficiency, high rates of mobility and dropout, and teenage

parenthood, challenge educators (Taylor-Ritzler, 2007). In fact, many graduating students with disabilities who lack the appropriate training and preparation have a very low likelihood of finding a job that would offer them career advancement opportunities, which in turn translates into fewer opportunities for social mobility (Center for Mental Health in Schools at UCLA, 2008).

Evidence also suggests that environmental barriers may prevent successful transition outcomes. Among these are attitudinal barriers toward youth with disabilities, including low family expectations regarding work and independence and limited opportunities for making choices in childhood through adolescence (Stewart et al., 2010). These barriers make improving transition outcomes even more critical.

Studies of promising practices for transition-aged youth with disabilities suggest that facilitators of successful employment outcomes include, but are not limited to, increasing collaboration and coordination among providers serving these youth (Oertle and Trach, 2007), encouraging youth participation in the workforce during the high school years (Wittenburg and Maag, 2002), encouraging participation in postsecondary education (Weathers et al., 2007), providing work-specific and community participation support (Balcazar et al., 2004), and involving employers in transition programs (Fabian, 2007). Some of these practices, such as youth participation in the workplace during high school and employer participation in transition programs, have been developed primarily for particularly high-risk groups, such as minority youth from urban areas (e.g., Garcia-Iriarte et al., 2007).

Awsumb and colleagues (2016) conducted a study examining VR transition outcomes in youth with disabilities aged 14 to 22. The results showed relationships between race and the chances of being rehabilitated, with white participants being more likely than their African American counterparts to be rehabilitated [χ² [1, n = 5,492] = 15.52, p <0.001) and experience successful closure (Awsumb et al., 2016). Overall, African American participants had a higher chance of being nonrehabilitated, while Hispanic participants had the highest percentage of rehabilitation closure and were significantly more likely to be rehabilitated (χ² [3, n = 6,252] = 18.17, p <0.001) (Awsumb et al., 2016). Although the number of Hispanics in the sample was relatively small, this finding is important, as it indicates that certain minority groups may have better chances of being rehabilitated than others in the VR system. In addition, participants living in small towns were more likely than those living in large urban areas to have successful outcomes. One possible explanation for this finding is that students living in small towns are likely to find farm jobs, especially during the summer when there is greater demand for labor, and to face less competition for employment compared with students in urban areas, who are competing with many other potential workers.

Summary

In summary, transition-aged youth with disabilities experience many disparities compared with their peers without disabilities in terms of education, employment, and independent living outcomes (Employment and Disability Institute, 2013; Stewart et al., 2010). These disparities may include early dropout, low educational attainment, welfare dependency, and youth unemployment (Ayres, 2013). Ensuring services for successful employment and/or vocational preparation and continued access to appropriate assistive products and technologies is vital to promoting a successful transition from high school to pathways to employment.

State Vocational Rehabilitation Agencies

States are given money to provide VR services to persons with disabilities under Title I of the Rehabilitation Act.¹²³ Each state must designate a single state agency to administer the VR program unless it designates a second agency to serve individuals who are legally blind.¹²⁴

VR agencies can fund a wide range of goods and services that are connected to a person’s vocational goal. Congress has stated that VR services are intended to empower individuals to maximize employability, economic self-sufficiency, independence, and integration into the workplace and the community through “comprehensive and coordinated state-of-the-art programs.”¹²⁵

Eligibility for VR Services and the Individualized Plan of Employment

To receive VR services, an individual must be disabled and require such services “to prepare for, secure, retain or regain employment.”¹²⁶ Any approved service must be connected to the individual’s employment goal. Employment goals include full- or part-time competitive employment in an integrated setting; supported employment; or other employment, such as self-employment, telecommuting, and business ownership.¹²⁷

To be eligible for VR services, an individual also must have a mental, physical, or learning disability that interferes with the ability to work. The disability need only be a substantial impediment to employment; it need not be so severe as to qualify the individual for SSDI or SSI benefits.¹²⁸ An SSDI

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¹²³ 29 USC § 701 et seq.; 34 CFR Part 361.

¹²⁴ 29 USC § 722(a)(2).

¹²⁵ 29 USC § 701(b)(1).

¹²⁶ 29 USC § 722(a)(1).

¹²⁷ 34 CFR § 361.5(b)(16).

¹²⁸ 29 USC § 705(20)(A).

or SSI beneficiary is presumed eligible for VR services as an individual with a significant disability provided he or she intends to achieve an employment outcome.¹²⁹ VR services may be denied to those who cannot benefit from them. However, applicants are presumed capable of employment, despite the severity of a disability, unless the VR agency shows by “clear and convincing” evidence that they cannot benefit.¹³⁰

Many may think of the state VR agency as an adult services program, a concept that is changing as new mandates of the Workforce Innovation and Opportunity Act (WIOA) of 2014 are implemented. WIOA and the federal regulations of 2016 that implement it now require a state VR agency to provide “pre-employment transition services,”¹³¹ serving students with disabilities aged 16 to 21 unless the state decides to provide such services to a different age range under IDEA.¹³² Coupled with the new WIOA mandate to serve “youth with disabilities” up to age 24¹³³ and the continuing mandate for special education programs to serve this population through age 21 or when they exit the public school program (as previously discussed), this requirement theoretically should enhance the ability of youth and young adults with disabilities to acquire AT that will enable them to benefit fully from employment opportunities as well as adult training and education programs, including higher education that will lead to employment.

The state VR agency delivers services pursuant to a written Individualized Plan for Employment.¹³⁴ The Individualized Plan for Employment is developed following a required comprehensive assessment that is performed as necessary to determine the employment goal and objectives and the necessary nature and scope of VR services. The assessment entails evaluating the unique strengths, resources, priorities, abilities, and interests of the individual.¹³⁵ It may also include a referral for the provision of rehabilitation technology (i.e., AT) services “to assess and develop the capacities of the individual to perform in a work environment.”¹³⁶

If a state lacks the resources to provide VR services to all eligible individuals who seek them, it must establish an “order of selection” to be followed in determining which individuals will receive services. The order of selection must ensure that individuals with the most significant disabilities are selected first to receive VR services.¹³⁷ The VR agency may not use

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¹²⁹ 29 USC § 722(a)(3).

¹³⁰ 29 USC § 722(a)(2); 34 CFR § 361.42(a)(2).

¹³¹ 34 CFR § 361.65(a)(3).

¹³² 34 CFR § 361.5(c)(51).

¹³³ 34 CFR § 361.5(c)(59).

¹³⁴ 29 USC § 722(b)(2)(A).

¹³⁵ 29 USC § 705(2)(B).

¹³⁶ 29 USC § 705(2)(c).

¹³⁷ 36 CFR § 361.43.

any of the following factors in establishing an order of selection: duration of residency; type of disability; age, gender, race, color, or national origin; source of referral; type of expected employment outcome; need for specific services or anticipated cost of services; or individual or family income.¹³⁸

Funding for a Range of AT Devices and Services to Support an Employment Goal

Available VR services include any that are necessary to assist an individual with a disability in “preparing for, securing, retaining, or regaining an employment outcome.”¹³⁹ The VR agency must ensure that all necessary services are provided and cannot choose to provide only some services to save costs. In fact, the “severity of an individual’s disability or the cost of services [including expensive AT] can have no bearing on the scope of services the individual receives.”¹⁴⁰ Once an individual has been determined eligible for services, the VR agency must provide funding for all services reasonably necessary to meet the person’s approved employment goal subject to his or her obligation to first seek any “similar benefits” that may be available, as discussed below. The VR agency may not place “any arbitrary limits on the nature and scope of VR services to be provided to achieve an employment outcome.”¹⁴¹

The VR regulations, published by the federal Rehabilitation Services Administration (RSA), provide an extensive list of categories within which services can be provided to support an employment goal.¹⁴² This list includes counseling, guidance, and job placement services provided by the VR agency’s staff or through an outside entity. It encompasses, for example, funding for vocational and other training, including higher education; personal assistance while receiving VR services; interpreter services for individuals who are deaf; readers and orientation/mobility services for individuals who are blind; tools, equipment, initial stock, and supplies to support a self-employment goal; other goods and services determined necessary to achieve an employment goal; and postemployment services necessary to retain, regain, or advance in employment.

AT devices and services are clearly available through state VR agencies to support an employment goal. Title I of the Rehabilitation Act and RSA’s VR regulations use the definitions of AT devices and services contained in the AT Act¹⁴³ and in IDEA. Importantly, the definition of AT services is very

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¹³⁸ 34 CFR § 361.36(d)(2).

¹³⁹ 29 USC § 723(a).

¹⁴⁰ Comments to 2001 regulations, 66 Fed. Reg. 4426.

¹⁴¹ 34 CFR § 361.50(a).

¹⁴² 34 CFR § 361.48.

¹⁴³ See 29 USC § 3001 et seq. (AT Act).

broad and includes evaluation to determine the need for a device, customizing or adapting the device for the user, repairs, maintenance, and training in use of the device. Available VR devices and services that may meet these definitions include prosthetic and orthotic devices; eyeglasses; orientation and mobility services, which can include AT; rehabilitation technology services; telecommunications; sensory devices; and other technological aids and devices.¹⁴⁴

Requirement to Seek “Similar Benefits” Through Other Funding Sources

VR agencies will not pay for a service if a similar or comparable benefit is available through another provider.¹⁴⁵ For example, if an applicant qualifies for personal assistance services through Medicaid, the VR agency will not fund that service. However, the agency cannot deny payment for college tuition because a student loan is available, as loans, which must be repaid, are not similar benefits (U.S. Department of Education, 1991). Comments to the 2001 VR regulations also make it clear that SSI’s PASS, discussed below, is not a similar benefit.¹⁴⁶ Additionally, diagnostic services, counseling, referral services, job placement, and rehabilitation technology (i.e., AT) are exempt from the similar benefit requirement.¹⁴⁷

The VR agency may ask an individual to apply to either Medicaid or Medicare (if eligible for one of those programs) to fund, for example, a powered wheelchair or an SGD, even though those items are exempt from the similar benefit requirement if classified as rehabilitation technology. Both Medicaid and Medicare may be expected to fund such items when they are medically necessary. Advocates often encourage individuals to foster good will with the VR agency by first seeking Medicaid or Medicare funding for these items (Sheldon and Hager, 2011).

Financial Need Criteria for VR Agency Services

A state is not required to consider financial need when providing VR services. However, if a state VR agency chooses to use a financial needs test, it must establish written policies that govern the determination of financial need and that identify the specific VR services that are subject to the test.¹⁴⁸

The VR agency’s financial needs test must consider the individual’s

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¹⁴⁴ 29 USC § 723(a).

¹⁴⁵ 29 USC § 721(a)(8).

¹⁴⁶ 66 Fed. Reg. 4419.

¹⁴⁷ 34 CFR § 361.53(b).

¹⁴⁸ 34 CFR § 361.54(a) and (b)(2)(i).

disability-related expenses. Although the individual may be required to contribute to the cost of a service, the level of that contribution must not be so high as to “effectively deny the individual a necessary service.”¹⁴⁹ The following services must be provided without regard to financial need: diagnostic services; counseling, guidance, and referral services; job placement; and personal assistance services. The regulations also exempt from a financial needs test “any auxiliary aid or service,” such as interpreter or reader services, that the individual needs to participate in the VR program and that are mandated under Section 504 of the Rehabilitation Act or the ADA.¹⁵⁰

Additionally, individuals “determined eligible for Social Security benefits under Titles II [SSDI] and XVI [SSI] of the Social Security Act” must be exempt from the financial needs test.¹⁵¹ This definition applies not only to cash beneficiaries of SSDI and SSI but also to former SSI cash beneficiaries who lost SSI benefits because of work and wages and who continue to receive Medicaid under section 1619(b). Section 1619(b), contained in Title XVI of the Social Security Act, states that for purposes of Medicaid eligibility, a 1619(b) recipient “shall be considered to be receiving [SSI] benefits under” Title XVI.¹⁵²

AT Devices and Services a VR Agency Can Fund

All the items discussed above should meet a VR agency’s definition of an AT device as they are all designed to allow an individual to overcome the effects of a disability, provided that a device will allow an individual to benefit from another VR service (such as education or training) and/or achieve a vocational goal. As noted above, many individuals may seek Medicaid or Medicare payment for items under the four device categories discussed herein as an act of goodwill, allowing the VR agency to pay for items and services only it can fund.

A separate challenge is the need to establish that an individual is seeking the least costly device within a category that will meet his or her need to benefit from education or training and/or to succeed in a job. In some cases, the device sought may serve both a medical and a vocational purpose. The result may be the possibility of different funding sources each suggesting it is the other funder’s obligation to pay for the device. In such cases, an advocate may seek to negotiate a resolution in which two

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¹⁴⁹ 34 CFR § 361.52(b)(2)(iv).

¹⁵⁰ 34 CFR § 361.54(b)(3)(i).

¹⁵¹ 34 CFR 361.54(b)(3)(ii).

¹⁵² 42 USC § 1382h.

funding sources, such as Medicaid and the VR agency, each agree to pay a portion of the cost.

Listed below is a sample of devices that could support individuals as they receive VR services or allow them to work after receiving those services. For each, the theory that might support funding the item is described:

• Powered wheelchair with tilt-in-space, seat elevator, and integrated standing feature—As discussed earlier, although the power function and other features can all be medically justified in many cases, Medicaid agencies have been known to deny funding for the standing feature, often claiming both that the medical benefit of “passive standing” is not proven through medical research and that the standing feature serves primarily a vocational function. Similarly, VR agencies, which can fund a wheelchair as rehabilitation technology, may claim that one or more of the special features is medical in nature and does not contribute to the person’s vocational goal. As noted above, in this situation, an advocate may be able to negotiate a resolution in which Medicaid and the VR agency agree to share the funding to allow the individual to receive the needed wheelchair.
• Myoelectric upper-extremity prostheses—Medicaid may agree that a prosthetic device is needed but claim that a less costly prosthesis will be adequate to allow the individual to function in most environments. While Medicaid’s decision might be challenged through an appeal, a good case can be made that this cutting-edge prosthesis should be funded by the VR agency to allow the individual to benefit fully from education or training and/or to function fully in the expected work environment.
• Hearing aids—As noted above, original Medicare does not cover hearing aids. If the individual has original Medicare coverage only, with neither Medicaid nor a private insurance plan that would cover hearing aids, the VR agency will likely be the only possible payer.
• Dual-purpose tablet or laptop serving as an SGD and personal computing device—In the case of individuals who are supported by the VR agency in a college or community college program as a step toward their vocational goals, funding for a personal computing device (laptop or tablet) can be justified to allow them to complete assignments. If the SGD is needed to communicate with teachers and peers, it, too, could be funded by the VR agency to allow the student to benefit from the education program. If the need for the personal computing device and the SGD can be justified, payment for a dual-purpose device should also be justifiable. Such a device

Social Security’s VR Cost Reimbursement Program

The U.S. Social Security Administration’s (SSA’s) Cost Reimbursement (CR) program allows for full reimbursement of costs if an SSDI or SSI beneficiary served by a VR agency is employed successfully at the “substantial gainful activity” (SGA) level (in 2017, $1,170 per month for the nonblind and $1,950 for the “statutorily blind”) for 9 consecutive months.¹⁵³ A beneficiary can meet the “9 consecutive months” criterion by working 9 of 10 consecutive months at the SGA level if “statutorily blind,” or by working any 9 of 12 consecutive months at the SGA level if the non-SGA months are for reasons beyond the individual’s control and unrelated to his or her disability.¹⁵⁴ The CR provisions allow a VR agency to fully recoup the cost of very expensive AT, such as a powered wheelchair with an integrated standing feature or a myoelectric arm or hand, as long as these earnings requirements are met. The CR program allows for payment to the VR agency with no need to show that the SGA-level work resulted in a termination of benefits.

The state VR agency may also elect to serve an individual under SSA’s Ticket to Work program as an “employment network” (EN). The Ticket to Work program’s two alternative payment systems each pay the EN flat dollar amounts as the beneficiary progresses toward self-supporting employment and elimination of dependence on benefits.¹⁵⁵ Since these are flat-rate payment systems, the EN, or the VR agency acting as an EN, has no extra incentive to pay for expensive AT to enable the beneficiary to succeed in employment at the highest earnings levels.

When an SSDI or SSI beneficiary has expensive AT needs, it makes the most sense for the VR agency to opt for the CR payment system. The CR system guarantees full reimbursement for AT purchases as long as the beneficiary achieves the more modest earnings outcome, i.e., 9 months of SGA-level work.

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¹⁵³ 20 CFR Part 404, Subpart V; 20 CFR Part 416, Subpart V.

¹⁵⁴ 20 CFR § 404.2110; 20 CFR § 416.2110.

¹⁵⁵ 20 CFR § 411.350; see Ticket to Work (2017) and links to payment charts for both the Outcome Payment System and the Milestone/Outcome Payment System.

Appeal Rights and the Client Assistance Program

If an individual is dissatisfied with a decision by the VR agency, he or she has the right to appeal. Appeals can be pursued through mediation or an administrative hearing before an impartial hearing officer.¹⁵⁶ The Client Assistance Program is available in every state to assist individuals who have questions or who are appealing a VR decision.¹⁵⁷ The individual may also seek assistance from a protection and advocacy (P&A) agency. A P&A agency is available in every state to advocate for individuals with disabilities on a range of issues.¹⁵⁸ Many P&A agencies house the Client Assistance Program.

State Workers’ Compensation Programs

Workers’ compensation is a system of insurance designed to compensate employees injured within the normal course of their employment. Each state has its own workers’ compensation law, which provides for the rules and benefits in its state, while the federal government administers workers’ compensation programs for federal employees and certain other federal programs. Under workers’ compensation, employees give up their right to sue their employers for negligence, and are exempt from the requirement to prove the employer was negligent, in exchange for receiving medical care and other benefits to compensate for injuries and illnesses sustained in the normal course of employment and to restore their level of functioning to their preinjury status. While the benefits vary by state, several states cover the cost of AT and the services of professionals, clinicians, and teams that can evaluate the need for appropriate assistive devices and train individuals in their use to restore their function. Depending on state law and the extent of advocacy available to the injured worker, these benefits may include the four categories of devices discussed in this report. For example, Iowa’s law provides for the payment of all “reasonable and necessary medical care” and “appliances” to treat injuries that are compensable. The word “appliances” has been interpreted to “include many types of medical equipment, also called Assistive Technology” (Iowa Compass, Center for Developmental Disabilities, 2016).

Depending on state law, however, workers’ compensation cases often involve a hearing process of some kind by which an injury or illness is declared covered or “compensable.” Once an illness or injury has been declared compensable, the employee may have to go through additional

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¹⁵⁶ 34 CFR § 361.57(b)(1)(i) & (ii).

¹⁵⁷ 34 CFR § 361.57(b)(1)(v).

¹⁵⁸ See National Disability Rights Network (2017) to link to state P&A agencies.

hearing processes to “convince” the employer or workers’ compensation carrier to pay for expensive AT devices.

Some states allow for reimbursement for attorney’s fees incurred in contesting these matters, but such reimbursement is not guaranteed. In Zuback v. Worker’s Compensation Appeals Board, 892 A.2d 41, 48 (2006), for example, Mr. Zuback sought repair or replacement of two stair glides that allowed him to move from floor to floor in his home following a compensable work-related injury that caused him to lose his left leg, his left arm, and two toes on his right foot. A Pennsylvania court held that an employer had a reasonable basis for contesting the benefits the injured worker sought if the suit “was brought to resolve a genuinely disputed issue, not merely to harass the claimant.” The court reasoned that since the stair glide issue was a case of first impression, attorney’s fees for the injured employee were not required.

Since workers’ compensation laws vary from state to state, it is difficult to generalize about what is covered. Yet, since most workers’ compensation covers some form of wage replacement—usually a percentage of the injured worker’s salary—workers’ compensation carriers and employers have an incentive to pay for AT and related services that will help return injured workers to work. These decisions are made on a case-by-case basis, depending on state law and the costs involved, and not all devices will be available uniformly from vendors across the country, nor will professionals trained to evaluate injured workers to determine their need for such a device and teach them how to use it.

PRIVATE FUNDING SOURCES

Self-Pay

Purchasing AT on one’s own is always an option. However, many assistive products and technologies cost thousands of dollars, eliminating self-pay as a full payment option for many individuals. Private health insurance (discussed later in the chapter), for individuals who have access to it, is one mechanism for covering at least a portion of the cost of required products and technologies. Private disability insurance also may serve as a source of funding for some work-related AT. Current beneficiaries of SSI and SSDI are generally on fixed incomes with high medical expenses, putting self-pay for expensive AT out of reach for most without assistance from Medicare, Medicaid, or a VR agency. In addition, several programs, including SSI’s PASS, state financing of low-cost loans, and ABLE accounts, may assist individuals in financing the acquisition of needed AT, as described below.

Supplemental Security Income’s Plan to Achieve Self-Support

SSI is a means-tested program administered by SSA. An SSI beneficiary must have limited income and resources.¹⁵⁹ SSI can be an individual’s only source of income, or it can supplement another source of income, such as SSDI or wages.

The maximum SSI federal benefit rate (FBR) is $735 per month in 2017. States have the option of supplementing the FBR. The example below uses the FBR with no state supplement. The SSI payment is determined by subtracting countable income from the state’s maximum SSI rate or base rate (i.e., the FBR plus optional state supplement).

The SSI program allows many income exclusions; for example, the first $65 plus 50 percent of any remaining earned income in a month is excluded and not part of countable income. The SSI program also allows up to $2,000 in countable resources. Many items are excluded from countable resources; for example, a vehicle used as transportation by the SSI beneficiary or another household member is excluded and not counted against the $2,000 resource limit (SSA, 2016c).

Eligibility for a PASS

SSI’s PASS allows an individual with a disability to exclude income and/or resources that otherwise would be countable when they will be used to support an occupational objective.¹⁶⁰ By doing so, the person retains SSI, becomes eligible for more SSI, or becomes eligible for SSI as a new applicant. The PASS enables the individual to achieve an occupational objective, i.e., self-support, through use of this excluded income and resources. For example, the PASS may enable a person to pay for education or training needed to become self-supporting or for items related to setting up a business, such as an accessible food truck.

People with disabilities receiving SSI must submit their proposed PASS to SSA in writing, preferably using SSA Form 545.¹⁶¹ Anyone, including the SSI applicant or beneficiary, can write a PASS. Given the detail required to complete the PASS form, however, individuals may want to seek assistance with its completion. Staff at SSA-funded Work Incentives Planning and

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¹⁵⁹ See 20 CFR § 416.1100 et seq. (income) and § 416.1201 et seq. (resources).

¹⁶⁰ 42 USC §§ 1382a(b)(4)(A)(iii) and (B)(iv), 1382b(a)(4); 20 CFR § 416.1180 et seq.; POMS SI 00870.001 et seq. For a more detailed discussion of the PASS, see Sheldon and Lopez-Soto (n.d.).

¹⁶¹ SSA’s Form 545, although not mandatory, should be used by individuals and their advocates to submit PASS proposals. This form is available at www.ssa.gov/online/ssa-545.pdf (accessed January 22, 2017).

Assistance projects, which are funded in every state,¹⁶² may be able to assist with drafting a PASS proposal.

Several items must be included in the written PASS proposal, including¹⁶³

• a specific occupational objective,
• specific savings and planned disbursement goals related to the objective,
• a list of goods and services requiring savings or payments and anticipated amounts,
• a specific time frame for achieving the objective,
• identification and segregation of any money or other resources being accumulated, and
• a detailed business plan when self-employment is a goal.

The PASS proposal can be approved for as long a period as necessary, with a beginning date and reasonable ending date as necessary to meet the occupational objective.¹⁶⁴ If the PASS will pay for items related to an undergraduate program, for example, a reasonable time frame might be 4 or 5 years and possibly longer if the objective requires a master’s degree.

Items That Can Be Funded Through a PASS

Money set aside through a PASS can be used for anything that is related to achieving the individual’s approved occupational objective. The following is a representative list of goods and services that can be purchased with the income or resources set aside in the PASS if reasonable and necessary to achieve this objective (SSA, 2012a):

• tuition, books, supplies, fees, and costs connected to education or occupational training
• costs for room and board when attending educational, training, employment, trade, or business activities
• equipment, supplies, operating capital, and inventory required to establish and carry on a trade or business
• equipment/tools either specific to the individual’s condition or designed for general use
• medically related items, including specialized equipment (i.e., AT)

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¹⁶² See SSA (2017) and follow links to locate the Work Incentives Planning and Assistance project for a state or region of a state.

¹⁶³ 20 CFR § 416.1181; POMS SI 00870.006.

¹⁶⁴ 20 CFR § 416.1181.

• operational or access modifications to buildings, vehicles, etc., to accommodate disabilities
• transportation costs, including lease/rental or purchase of a vehicle, public transportation and common carriers, fuel costs, registration fees, and initial cost of insurance premiums
• job search or relocation services
• taxes and government-imposed user fees (e.g., permits, licenses) connected with obtaining any of the above
• finance and service charges and/or maintenance costs for any of the above

The PASS can also include any other costs that are reasonable and necessary to attain the occupational objective.

As discussed in the section on public funding above, some of the selected items in each of the four AT categories could potentially be funded through Medicaid, Medicare, a special education program, or a state VR agency. All of the AT devices selected for discussion in each of the four categories could be funded with money deposited into a PASS account as long as they had a demonstrated connection to the chosen occupational objective. Since a PASS is a short-term funding source and an individual is allowed only one PASS for the same occupational objective, a PASS should be viewed as a source of supplemental funding for an item, as the source of funding for an item that cannot be funded through other means, or as an alternative to a loan that must be repaid. For example, even though strategies are available for obtaining Medicaid or Medicare funding for a dual-purpose laptop or tablet, an individual may have a reason to obtain a specific laptop or tablet to meet school-related personal computing needs, with the purchase of SGD software to follow. This requirement could make Medicaid or Medicare funding a challenge.

Hypothetical Example: Use of a PASS to Fund an AT Device to Support an Occupational Objective

This example involves an individual who receives $620 in SSDI and $135 in SSI per month. The person uses a powered wheelchair and has a single hearing aid to address his severe hearing deficit. He attends college with the objective of becoming a math teacher and is completing the first year of an expected 6-year program leading to the bachelor’s and master’s degrees needed to achieve this objective. The state VR agency is paying for tuition, related costs to attend college, and specialized transportation to and from the campus in his powered wheelchair.

In addition, the individual seeks PASS funding for a modified van ($29,000 for the van, $40,000 for van modifications) that will allow him

to travel to student teaching assignments, then employment as a teacher following graduation; a second, lightweight wheelchair ($2,800) that will serve as a back-up when his powered wheelchair is undergoing predictable repairs and can be used for work-related mobility in places where a powered wheelchair is not easily used; and binaural hearing aids ($4,200), which will allow him to achieve a higher degree of functional hearing in a classroom setting when he becomes a teacher. This scenario assumes that the person’s state VR agency will pay for the vehicle modifications but not the vehicle itself; that neither Medicaid nor Medicare will pay for the second wheelchair, each claiming that his needs are met through the powered wheelchair; and that neither Medicaid nor Medicare will pay for the binaural hearing aids, each claiming that his needs are met by the current single hearing aid he uses.

The individual submits a PASS proposal to save for all three items at a total cost of $36,000. For purposes of this scenario, starting in July and continuing for 5 years (60 months), he will put $600 per month into a designated bank account to save for these items. His plan, as approved by SSA, provides that he will purchase the lightweight wheelchair and binaural hearing aids during his final year of undergraduate school, allowing him to begin using both items prior to his required student teaching. He will purchase the van during the same year, using savings to make a large down payment and using PASS funds to make installment payments through the end of the PASS approval period. SSA’s PASS policy is flexible and will permit amendments as needed, for example, to allow the individual to pay for 1 or more years of van insurance or to purchase needed software or apps for his laptop or tablet. This is how the individual’s SSI payment would be calculated:

• Total income—$620 unearned (SSDI), $0 unearned
• Total expenses for PASS: $600 per month; $0 earned
• SSI calculation—total countable income = $0 ($620 – $600 PASS expense = $20 – $20 unearned income exclusion = $0); new SSI payment amount = $735 ($735 SSI FBR – $0 countable income after PASS exclusions = $735)

Thus, the PASS would enable this individual to achieve

• accumulation of $36,000 toward the purchase of a vehicle, a lightweight wheelchair, and binaural hearing aids;
• the leveraging of $40,000 from his state VR agency to pay for van modifications (allowing him to travel with his wheelchair);

• maintenance of monthly income, for living expenses, at the same level; and
• retention of automatic eligibility for Medicaid in most states (ensuring a continued funding source for AT and many other items).

Appeal if a PASS Proposal Is Denied

The denial of a PASS proposal, or any part of the proposal, is considered a decision affecting the right to SSI benefits and is subject to the SSI appeals process. This process involves three potential appeals before SSA (reconsideration, administrative law judge hearing, and Appeals Council) and a potential appeal to the federal district court.¹⁶⁵ Following any adverse decision (i.e., denial of the proposal or denial following a reconsideration or hearing), the PASS applicant is allowed 60 days from receipt of that decision to request an appeal or review of the most recent decision. Similarly, if the SSI beneficiary loses an appeal at the reconsideration, administrative law judge hearing, or Appeals Council stage, he or she has 60 days to appeal to the next level.

State Alternative Financing Programs: A Source of Low-Cost Loans

The federally funded Alternative Financing Program (AFP) exists in more than 30 states.¹⁶⁶ AFPs provide loan financing for AT, with low or reduced interest rates for persons with disabilities who meet the program criteria. Additionally, several states have AFP-like AT loan programs that are funded differently (CATADA, 2017a,b). This section describes all such programs as AFPs.

An AFP may be a source of funding for AT when no other funding source exists. It may be able to extend or arrange for credit when the individual with a disability or his or her family would not ordinarily meet the standards of creditworthiness. Every AT device discussed herein could be funded through an AFP loan.

Typical Operation of AFPs

Generally, AFPs may use three different methods: a revolving loan, a loan guarantee, or an interest rate buy-down. Some programs offer one or two of these methods, some all three. Key aspects of the loan program may include the following:

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¹⁶⁵ See 20 CFR § 416.1400 et seq.

¹⁶⁶ See CATADA (2017a) for information on participation in state financing and other state-level activities.

• Dollar ranges for loans—For federal FY 2010, the national average of loans made was $10,498, with a range of under $1,000 to more than $50,000 (see U.S. Department of Education, 2014).
• Interest rates—For federal FY 2010, reported rates varied from 0 percent to 10.24 percent (RESNA Catalyst Project, 2017).
• Term for repayment—The term typically ranges from 2 to 7 years, but some programs offer a longer repayment period for home equity loans.
• Creditworthiness issues—Although a loan program will want to have reasonable assurance that loans will be repaid, some programs, unlike traditional lenders, will offer loans to individuals without a good credit rating.

Items Purchased with Loan Funds

The items commonly purchased with loan funds include many that are not easily funded through traditional funding sources, such as Medicaid, Medicare, a state VR agency, or special education programs. In some cases, another funding source will pay up to a funding limit or provide funding subject to a copayment, and an AFP loan can be used to pay for the balance. The following are the common categories for loans, along with one or more examples of a non-loan funding source:

• Vehicle modifications and transportation—State VR agencies can fund vehicle modifications to support an occupational objective.
• Computers and related equipment—iPADs and similar devices have become popular items funded through a loan program and could include a dual-purpose laptop or tablet that would be used as an SGD. State VR agencies may fund these costs if related to an occupational objective, and both Medicaid and Medicare can be funding sources for dual-purpose laptops or tablets that also serve as SGDs.
• Mobility, seating, and positioning equipment—These items can often be funded through Medicaid, Medicare, or a private insurance plan. Both Medicare and private insurance may require a significant copayment that could be financed through an AFP loan.
• Environmental adaptations and home modifications—If the item in question is considered outside the scope of traditional Medicaid, a Medicaid waiver program, if available, may be able to cover this cost. Waiver programs, however, typically have dollar limits on what they will pay for each year, making an AFP loan an attractive supplement.

• Hearing—Medicaid may be a funding source. As discussed earlier, Medicare by law excludes funding for hearing aids. Many private insurance plans may also specifically exclude coverage of hearing aids.

For FY 2010, the four most common categories of AT purchased through AFP loans were vehicle modifications and transportation; hearing; environmental adaptations and home modifications; and mobility, seating, and positioning in that order (U.S. Department of Education, 2014, Table 30).

A state AFP can be an important source of funding for AT when no other funding is readily available. An AFP loan can also be used to fund AT pending an appeal to another funding source, such as Medicaid or a state VR agency. An AFP loan can be used as well to pay for vocationally related items not available through the state VR agency but written into an approved SSI PASS. The money to be set aside in the PASS would then be used later to pay off the loan after the individual had already purchased and received the equipment. In the PASS example described earlier, for example, the individual might not have good credit scores and could use an AFP loan to purchase the van. He would use PASS savings for a down payment, then use the PASS savings to make payments on the loan.

Achieving a Better Life Experience Accounts

The Stephen Beck, Jr., Achieving a Better Life Experience Act was signed into law on December 19, 2014, with an effective date of December 18, 2015. This law, Internal Revenue Code 529A, creates a tax-advantaged account that can be used to save funds for the disability-related expenses of a “designated beneficiary,” who must be blind or disabled by a condition that began before the individual’s 26th birthday.¹⁶⁷ ABLE accounts can be established and maintained by a state or a state agency directly, or by contract with a private company as an instrument of the state.

During 2016, the first ABLE accounts were authorized in seven states: Florida, Kentucky, Michigan, Nebraska, Ohio, Oregon, and Tennessee.¹⁶⁸ The Florida accounts are available only to Florida residents, while the other states operate what are known as national ABLE accounts. An eligible individual can open an ABLE account through a national ABLE program in any state.

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¹⁶⁷ 26 USC § 529A; 80 Fed. Reg. 35602-35620 (proposed regulations, dated June 22, 2015); POMS SI 01130.740.

¹⁶⁸ The ABLE National Resource Center (2017) homepage includes a regularly updated U.S. map that provides links to active state ABLE account programs.

Disability Criteria for the Designated Beneficiary

To qualify as a designated beneficiary, the individual must

• be eligible for SSDI or SSI disability benefits, based on a disability or blindness that began before age 26; or
• be an individual who has certified, or have a parent or guardian that has certified, that he or she has a medically determinable impairment—i.e., disability or blindness occurring before age 26—“which results in marked and severe functional limitations” that have lasted or are expected to last 12 consecutive months, or are likely to result in death.¹⁶⁹

The law provides that the certification of disability must be filed with the secretary of the treasury.¹⁷⁰ Interim guidance issued by the Internal Revenue Service (IRS) on November 20, 2015, pending final regulations, provides that the disability certification is deemed to have been filed with the secretary of the treasury once the state ABLE program has received the certification (IRS, 2015a). This guidance goes on to provide that the certification requirements are met if the individual, the individual’s agent under power of attorney, or his/her parent or guardian certifies, under penalty of perjury, that he or she has a “signed physician’s diagnosis” and that the signed diagnosis will be retained and provided to the ABLE program or the IRS upon request (IRS, 2015b, pp. 8-9).

Contributions to an ABLE Account

Any “person” can contribute to an individual’s ABLE account, including the designated beneficiary. A person, as defined by IRS rules, includes a trust or an estate. The maximum combined contributions cannot exceed the current year’s IRS gift tax-exempt amount—$14,000 in 2016.¹⁷¹

Use of Funds in an ABLE Account for Qualified Disability Expenses

The designated beneficiary is permitted to withdraw money from the ABLE account to meet qualified disability expenses (QDEs). Although the law characterizes these as expenses “related to the blindness or disability of the designated beneficiary and for the benefit of the designated beneficiary,” comments to the proposed regulations note that “the Treasury Department and the IRS conclude that the term ‘qualified disability expenses’ should

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¹⁶⁹ 26 USC § 529A(e).

¹⁷⁰ 26 USC § 529A(e)(1).

¹⁷¹ See proposed regulations, 26 CFR § 1.529A-2.

be broadly construed to permit the inclusion of basic living expenses and should not be limited to items for which there is a medical necessity or which provide no benefits to others in addition to the benefit to the eligible individual.”¹⁷²

Section 529A(e)(5) of the law provides a list of expenses that would be considered QDEs, including

• education and employment training and support,
• housing and transportation,
• AT and personal support services,
• health and prevention and wellness,
• financial management and administrative services and expenses for ABLE account oversight and monitoring,
• legal fees, and
• funeral and burial.

The law then goes on to add “other expenses” approved by the treasury secretary,¹⁷³ interpreted by the interim guidance and proposed regulations to include basic living expenses.¹⁷⁴

Clearly, ABLE account funds can be used to purchase or contribute to the cost of any of the AT devices that fit into the four categories discussed herein. As with a PASS, the individual with a disability or designated beneficiary of the ABLE account should always look to other funding sources first, relying on ABLE funds to pay for those items that cannot be funded, for example, through Medicaid or Medicare. Since medical necessity need not be demonstrated for an ABLE account QDE, the use of ABLE funds would be appropriate, for example, when a funder such as Medicaid did not find the requested AT to be medically necessary.

Examples of how ABLE funds could be used to fund AT devices include the following:

• Powered wheelchair with integrated standing feature—If the Medicaid agency would pay for the powered wheelchair and other features but not the standing feature, the individual could arrange with Medicaid and the equipment supplier for the extra cost of the standing feature to be paid through the ABLE account.
• Binaural hearing aids—If the individual’s only insurance coverage were through Medicare, which excludes hearing aids from coverage, the ABLE account could be the best way to fund the item.

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¹⁷² 80 Fed. Reg. 35608.

¹⁷³ 26 USC § 529A(e)(5).

¹⁷⁴ 80 Fed. Reg. 35614-15, proposed 26 CFR § 1529A-2(h).

• A dedicated SGD—If the individual’s only insurance coverage was Medicare and the individual was not eligible for the Qualified Medicare Beneficiaries Program (which would pay for the Part B 20 percent copayment [see the Medicare discussion above]), the ABLE account could fund the copayment (e.g., $1,200 if the cost of the device were $6,000).

How ABLE Accounts Affect Continued SSI Eligibility

The SSI program has issued policy provisions governing the treatment of money placed in ABLE accounts, the funds held in those accounts, the status of SSI and Medicaid when the total value of an ABLE account exceeds $100,000, and the use of ABLE funds to meet designated disability expenses (SSA, 2016d). These provisions provide that

• contributions of the designated beneficiary still count as income for SSI, while contributions from all other sources are excluded and not counted as income;
• earnings from the ABLE account are excluded by SSI; and
• up to $100,000 of the account balance is excluded by SSI and not counted toward the $2,000 SSI resource limit.

ABLE account distributions The SSI policy provides that ABLE account distributions are not income of the designated beneficiary for SSI purposes but a “conversion of a resource from one form to another . . . regardless of whether the distributions are for non-housing QDEs, housing QDEs, or non-qualified expenses” (SSA, 2016d).¹⁷⁵ The exclusion of housing-related QDEs from income is extremely important, as the payment of housing expenses (e.g., rent, mortgage, utility costs) by a third party, including a trust, would ordinarily be considered in-kind income and could reduce the SSI payment by up to one-third of the SSI FBR (i.e., $245 per month in 2017) (SSA, 2012b).

When the ABLE account balance exceeds $100,000 As noted, SSI eligibility is not affected as long as the ABLE account balance does not exceed $100,000. No designated beneficiary is expected to exceed the $100,000 limit in the near future because of the yearly $14,000 cumulative limit on contributions. However, individuals with disabilities need to understand these provisions for future planning purposes.

When the ABLE account balance exceeds $100,000, the SSI program

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¹⁷⁵ Readers must keep in mind, however, that the use of ABLE funds for nonqualified expenses may have tax consequences.

will count any of the excess money toward the $2,000 resource limit. SSI policy calls for an indefinite benefit suspension and continuing eligibility for Medicaid during periods of excess resources attributable to an ABLE account (SSA, 2016d). Ordinarily, if an individual exceeded SSI’s $2,000 resource limit for 12 consecutive months, the person would be terminated from benefits and would need to submit a new application if his or her resources fell below $2,000 in a future month (SSA, 2016e). This special provision allows SSI to be suspended for 12 months or longer, allowing the designated beneficiary to return to payment status in any future months in which his or her countable resources, including ABLE account funding in excess of $100,000, are within the $2,000 limit.

The retention of Medicaid during the period of indefinite suspension is very important to any individual who will need continuing Medicaid to cover a range of expenses, including AT devices. This provision is particularly important for individuals who are no longer dependent on the modest SSI payment they were receiving but need Medicaid for AT and other health-related costs. It is also important for individuals who are no longer receiving SSI payments because of the budgeting of earnings and retain Medicaid through the 1619(b) work incentive discussed in the section on Medicaid above.

Impact of the ABLE Account on Other Key Federally Authorized Benefits

The U.S. Department of the Treasury has said that “[in] general, neither the ABLE account nor distributions from the account are treated as income or resources of a designated beneficiary . . . in determining that designated beneficiary’s qualification for federal benefits [other than SSI and Medicaid].”¹⁷⁶ However, no provision in the law or the proposed regulations references how any specific federal benefit program will implement this provision. The discussion here is limited to the interrelationship between ABLE accounts and four other AT funding sources discussed herein: Medicaid’s Buy-In Programs for working individuals, Medicare Savings Programs (MSPs), the state VR agencies, and SSI’s PASS.

Medicaid Buy-In Programs This powerful work incentive, discussed earlier in the section on Medicaid, allows individuals with disabilities to qualify for Medicaid at countable earnings levels set by individual states. For example, a number of states set their countable income standard at 250 percent of the federal poverty level. Federal criteria governing Medicaid Buy-In Programs require that SSI rules be applied for counting of income and resources unless specific provisions enacted by a state provide for more liberal rules.

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¹⁷⁶ Interim Guidance, IR-2015-130, p. 2.

Since the ABLE-related SSI rules discussed above are now a part of SSI’s income and resource rules, a Medicaid Buy-In Program is required, for example, to follow the rules that allow for exclusion of ABLE accounts even if they total more than $100,000 to allow an individual to retain Medicaid.

MSPs As outlined earlier in the section on Medicare, MSPs provide for Medicaid agencies to pay Medicare Part B premiums and, in some cases, copayments if a financial needs test is met. As noted, in determining countable income and assets for MSP eligibility, states must follow all SSI income and resource exclusion rules. Since ABLE account resources up to $100,000 are now exempt in the SSI program, they are also exempt in determining MSP eligibility. This means that a Medicare beneficiary can retain a significant balance of his or her ABLE account and still qualify for the Qualified Medicare Beneficiaries program, which will pay for both Part B premiums and the 20 percent copayment on any AT device covered by Medicare as DME.

State VR agencies As noted earlier in the section on state VR agencies, an SSI or SSDI beneficiary automatically meets the VR agency’s financial need criteria for receipt of funding for a range of services, including AT devices and services. Since individuals can now retain SSI cash payment status notwithstanding ABLE account resources up to $100,000, financial eligibility for VR agency funding will continue as well.

SSI’s PASS The PASS, as explained above, allows for exclusion of both income and resources to be used in support of an approved occupational objective. Since up to $100,000 in an ABLE account is an exempt resource for SSI purposes, there is no requirement that an individual exhaust his or her ABLE funds before using the PASS to purchase needed AT, for example. To the extent that the PASS savings are insufficient to support the occupational objective in an individual case, an ABLE account distribution can be used to supplement those funds available in the PASS, for example, to pay for needed AT.

Charitable Programs

The ability to find funding for a specific AT device will vary from case to case. It may depend on whether the individual is eligible for one of the funding sources discussed above, such as Medicaid or Medicare. It may also depend on the ability to show that the item is needed to benefit from a child’s special education program or the ability to convince the state VR agency that the item is needed to progress toward an occupational objective when the state VR program has enough money remaining in its budget

to pay for it. In some cases, one of the public funding sources discussed above may have denied the requested item, which will mean initiating a time-consuming appeal to have even a chance of receiving funding.

When an individual or family cannot identify a public or noncharitable private funding source to pay for needed AT, a charitable organization may be an option. The charity might be a well-known state or national entity or a lesser-known one found through word-of-mouth or Internet research. It might even be a local charity that makes funding available only for residents.

Charities are unlike public funding entities in several respects. For example, a charity may choose to target only one type of disability for assistance, provide funding only for a specific type of equipment, or pay only a percentage of the purchase price of AT. In some cases, a charity may be available to fund a large copayment required to obtain an AT device, such as the 20 percent Medicare Part B copayment required to fund an expensive wheelchair or SGD.

The item(s) a charity is willing to fund may vary from year to year depending on its updated priorities or the amount of donations it has received to support its annual activities. Some charities may require proof that the individual seeking assistance has exhausted other sources of funding, such as Medicaid and private insurance, while others may request a written statement of need and allocate their limited resources based on a committee’s review of competing applications. If a charity declines to provide funding for an item, an individual may be able to express his or her concerns in writing to the organization’s funding manager, but charities are not known to offer formal appeals to challenge their decisions. Over time, charities have been known to change their focus, merge with other charities, or even cease operations. For these reasons, a charity should typically be viewed as a last resort for AT funding.

This section first describes strategies for locating a national charity that could be a funding source for AT devices—strategies that may work at the state and local levels as well. It then provides some examples of national charities that, at the time of this writing, were potential funding sources for the categories of AT that are the focus of this report.

Strategies for Locating a National Charity

Internet searches on any major search engine should lead to information about national, state, or local charities. Sometimes these searches will yield specific organizations that make funds for AT or the AT itself available at little or no cost. The searches may also lead to websites that compile lists of potential charitable funding sources for AT. For example, the United Spinal Association’s “Spinal Cord Resource Center Page” provides a range

of links to sources of grants and loans and other funding sources, including other funding source compilation sites (United Spinal Association, 2015). As the person searching compiles a list of potential funding sources, it is always best to contact the source directly (by email or phone) to confirm that the information on the site is still current.

Internet searches can be time-consuming and create the challenge of finding a way to deftly sort through what the search yields. One approach is to open a separate word processing document, such as a Word file, making sure to save it for future reference. Each time a useful or apparently useful website is found, “block and paste” can be used to drop the full Internet address or URL into the word processing document, giving it a descriptive name such as “Spinal Cord Resource Center Page.” At a later time, this funding source document can be better organized by AT category or type of funding source. This can also be a good way for an individual to retain any lesser-known public funding sources, such as the state-operated crime victims compensation program or workers’ compensation program, both of which in some cases could be a fruitful AT funding source.¹⁷⁷

Examples of National Charities

The examples below are provided by way of illustration. They are representative of the type of assistance that may be available through national charities. In a specific case, a good Internet search may turn up any number of better examples for an AT device that cannot otherwise be funded. Any in-depth research should encompass state and local charities as well. Overall, although charities may never be a substitute for a well-funded public system of funding, they can be a life saver in individual cases.

United Cerebral Palsy (UCP) Elsie S. Bellows Fund This national program, operated by UCP, provides grants for purchasing or repairing AT devices for individuals with disabilities. Individuals with disabilities and their families who are in financial need and lack other funding resources are eligible (United Cerebral Palsy, 2015). Funding is made available through UCP’s local affiliates, which directly assess an individual’s AT needs and financial qualifications. Examples of allowable AT requests include manual and powered wheelchairs, computer equipment (presumably including the dual-purpose laptop/tablet and SGD), and hearing aids.

Friends of Disabled Adults and Children (FODAC) FODAC provides adults and children with disabilities, nationwide, with free or low-cost

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¹⁷⁷ For more information on the crime victims and workers’ compensation programs, see NLS (2011b, 2015).

wheelchairs and other DME, vehicle and home adaptations, and more (FODAC, 2017). The organization depends, in part, on donations of new and used DME. Its volunteer-run repair shop cleans and refurbishes the equipment and matches it to the specifications of the new user. Relevant to the discussion herein, FODAC can provide free or low-cost new and used wheelchairs, as well as low-cost repairs, to individuals not otherwise able the cover those costs.

Foundation for Sight and Sound Through its Help America Hear Program, the Foundation for Sight and Sound provides new high-quality hearing aids, nationwide, to men, women, and children with limited financial resources (Foundation for Sight and Sound, 2016). The organization’s website asks individuals to exhaust all other financial resources, including but not limited to available credit, family support, money market accounts, mutual funds, 401(k) plans, trust funds, annuities, and savings/checking and state-sponsored programs, before turning to this charity.

Private Health Insurance

Private (or commercial) health insurance encompasses any nongovernmental health insurance. Employers and individuals can contract with private health insurance providers either to administer or to pay specified health care costs for eligible individuals. When employers are “self-insured,” they are responsible for health care costs, although their plans typically are administered by an insurance company (Community Health Advocates, 2012). By contrast, “fully insured” employers pay premiums to the insurance company, which is then responsible for the covered costs when an eligible employee needs care (Community Health Advocates, 2012). Fully insured plans must comply with federal and state regulations (Community Health Advocates, 2012; Kubrin, 2016).

Private health insurance varies considerably in price and the benefits offered. Factors affecting what benefits are available, the rights of the client, and the like, include the type of insurance the client has (e.g., health maintenance organization [HMO]), preferred provider organization, point of service), whether the plan is self-insured or fully insured, the state in which the employer is based, whether the employer is covered by the Employee Retirement Income Security Act, and whether the plan is “grandfathered” under federal health care reform (Community Health Advocates, 2012).

Eligibility for coverage and payment of benefits depend on the terms of the plan. As with private disability insurance, employers can specify eligibility criteria for coverage of their employees.

Funding for Selected AT Devices

Fully insured private health insurance plans provide coverage for DME and prostheses and orthotics. Most of the variation in coverage relates to the level of cost sharing rather than the types of devices covered (Kubrin, 2016). For fully insured commercial HMO or deductible HMO plans, deductible levels range from $250 to $5,000; coinsurance ranges from zero to 40 percent; and out-of-pocket costs range from around $500 to $5,000, with two or three times that for the family deductible (Kubrin, 2016).

Powered wheelchairs and accessories The Tufts Health Plan (2017d) may cover a powered wheelchair when a number of criteria are met, including the individual’s being unable to “propel a manual wheelchair more than 50 feet”; “propel a manual wheelchair sufficient distances to manage within the community, including but not limited to attending appointments, working and managing household responsibilities, at least three times per week”; and “meet the criteria for” or safely use a power operated vehicle (i.e, a three- or four-wheeled device with tiller steering and limited seat modification capabilities [Tufts, 2017c]). Tufts (2017d) expressly excludes “coverage of a power wheelchair and/or accessories and components” when used for convenience, primarily for recreation or leisure, or for community mobility only. In addition, it excludes coverage when the powered wheelchair is requested in addition to the individual’s “primary mobility device (e.g., manual wheelchair, power operated vehicle).” It also does not cover certain wheelchair modifications or accessories, including any type of powered seat elevation system, any type of powered standing system, a powered wheelchair seat cushion, or an environmental control unit (Tufts, 2017d).

Likewise, Aetna may cover powered wheelchairs if they are considered medically necessary under specified conditions. Powered wheelchairs expressly are not considered medically necessary if needed only for use outside of the home, and Group 4 wheelchairs are not considered to be medically necessary because they have added capabilities that are not needed for use in the home (Aetna, 2016d).

Myoelectric upper-extremity prostheses A review of general coverage of myoelectric upper-extremity prostheses among several private health insurance carriers indicates a number of common criteria for the medical necessity of such a device (Aetna, 2016b; Amerigroup, 2016; Tufts, 2016). Several of the criteria relate to the ability to use the device, for example, having (1) “sufficient neurological, myocutaneous, and cognitive function to operate the prosthesis effectively,” (2) “sustained a minimum of a wrist or above partial limb amputation,” and (3) “sufficient microvolt threshold in the residual limb to allow proper function of the prosthesis” (Tufts, 2016;

see also Aetna, 2016b; Amerigroup, 2016). Aetna (2016b) and Amerigroup (2016) also include a requirement that there be no comorbidities, such as neuromuscular disease, “that could interfere with maintaining function of the prosthesis.” Amerigroup (2016) and Tufts Health Plan (2016) each stipulate as well that the individual not function “in an environment that would inhibit function of the prosthesis,” such as wet environments or situations involving electrical discharges. Notably, all three carriers also require as a criterion for medical necessity that a “standard body powered prosthetic device cannot be used” or is “insufficient to meet the functional needs” of the person (Aetna, 2016b; Amerigroup, 2016; Tufts, 2016) “in performing activities of daily living” (Aetna, 2016b; Tufts, 2016).

Hearing aids Hearing aids often are not covered under private health insurance, or coverage may be sold as an optional rider (unless state mandated) (Andrews, 2012; Calderone, 2017b). Aetna, for example, excludes coverage of hearing aids from most of its benefit plans. Such exclusions apply to “air conduction hearing aids, implantable hearing aids and semi-implantable hearing aids” (Aetna, 2016a). Individuals who are covered must satisfy the criteria for medical necessity (Aetna, 2016a). However, the Tufts Health Plan covers “medically necessary audiology evaluations and related services for hearing disorders” as specified in its policies, including coverage for hearing aids for members aged 21 and younger in Massachusetts and adults in New Hampshire and Rhode Island in accordance with state requirements (Tufts, 2017a). New Hampshire and Rhode Island are two of four states that require hearing aid coverage for adults; Arkansas and Connecticut are the other two (ASHA,2017). Twenty states, including Massachusetts, require hearing aid coverage for children (ASHA, 2017). Although approximately 60 percent of respondents to Consumer Reports’ survey of 131,686 readers with hearing challenges found that “none of the initial hearing-aid costs were covered by health insurance,” 37 percent indicated that they saved some money on hearing aids through their private health insurance plans (Calderone, 2017a,b). Some insurers, such as Aetna, offer discounts on hearing aids through arrangements with outside companies (Calderone, 2017a). And United Healthcare now offers lower-cost hearing aids through a collaboration with hi HealthInnovations, an Optum business, and UnitedHealth Group (UnitedHealth Group, 2017).

Speech-generating devices The Tufts Health Plan covers SGDs as DME when medically necessary, subject to a copay of up to 30 percent (Tufts, 2017b). The plan “does not compensate for devices, accessories or software programs that are considered to be not the least intensive level of services (E2508, E2510, E2511, E2512)” (Tufts, 2017b, p. 9). Aetna (2016c) considers SGDs to be medically necessary DME and will cover them for

individuals who meet all of the requisite criteria. Provided the SGD is used only by “a person with a severe speech impairment and is primarily used for the purpose of generating speech,” it does not have to be dedicated to speech generation for it to be considered DME. Although devices such as computers, tablets, and smartphones are not covered because they are not dedicated SGDs, “software that enables such devices to function as a SGD is considered an SGD; however, installation of the program or technical support is not separately reimbursable” (Aetna, 2016c). For a given individual, Aetna (2016c) considers only one SGD or speech-generating software program at a time to be medically necessary.

Private Disability Insurance

As part of the information gathering for the committee’s review of selected disability compensation programs, representatives from two private disability insurance providers, Unum and Prudential Financial, addressed the committee during open session. Since private disability insurance is a potential source of funding for certain assistive products and technologies, a brief discussion is included in this chapter. Greater detail on private disability programs is provided in Chapter 8.

Eligibility for Private Disability Insurance Benefits

Employers and individuals can contract with private disability insurance providers to pay monetary benefits when a covered individual becomes disabled and unable to work. Eligibility for coverage and payment of benefits depend on the terms of the contract between the employer or individual and the insurance provider. Employers can specify eligibility criteria for coverage of their employees based, for example, on the number of hours they work (Jackson, 2016).

Funding for Selected AT Devices

Notably, private disability insurers typically define disability “based on the essential functions of the occupation” (Jackson, 2016). When deciding a claim, the insurer must determine whether the claimant’s medical condition supports the inability to perform the occupation (Jackson, 2016; see also Tugman and Kramschuster, 2016). For claimants who may be able to return to work with reasonable accommodations, including AT, the insurer may provide certain products or technologies or reimburse the employer for at least a portion of the cost of work site modifications “that will assist the employee in performing the substantial and material duties of the occupation” (Jackson, 2016; see also Tugman and Kramschuster, 2016).

Private disability insurers utilize assistive products and technologies in support of occupational functioning, which is different from supporting activities of daily living (ADLs) or instrumental activities of daily living (IADLs) (Jackson, 2016).

This focus on returning the claimant to work with his or her employer has implications for the types of assistive products and technologies private insurers provide. Musculoskeletal conditions are among the most common for both short- and long-term disability claims. Common assistive devices provided include sit/stand workstations; antifatigue mats; ergonomic workstations, chairs, and keyboards; special shoes, gloves, and belts; transfer devices (scissor lift, pivot disc); speech-to-text software; and the like (Jackson, 2016; Tugman and Kramschuster, 2016). Private disability insurers may provide scooters or other wheeled mobility devices if required to restore or maintain occupational functioning, although the provision of such devices is less common (on the order of 5 percent) (Jackson, 2016). Other commonly provided products and technologies address visual and auditory conditions: text-to-speech software, magnification, and closed-caption television for visual impairments; amplification, text telephone, and vibrating pagers for notification for hearing impairments; and white noise machines for tinnitus (Jackson, 2016; Tugman and Kramschuster, 2016). Private disability insurers do not provide assistive products and technologies unless the devices directly support occupational functioning (Jackson, 2016; Tugman and Kramschuster, 2016). Thus, the types of assistive products and technologies required by individuals to engage in ADLs and IADLs, including those described in this report, typically are not covered by private disability insurers.

WORKPLACE REASONABLE ACCOMMODATIONS

Americans with Disabilities Act

Congress passed the ADA in 1990 to end discrimination in the form of, among other things, the “failure to make modifications to existing facilities and practices, [and] exclusionary qualification standards and criteria” for people with disabilities.¹⁷⁸ After a series of Supreme Court cases narrowed the application of the ADA in employment cases, Congress passed the ADA Amendments Act of 2008 (Public Law 110-325) to restore its original intent for a broad interpretation of ADA protections.

The ADA prohibits discrimination against individuals with disabilities in the areas of employment in Title I, state and local government services in Title II, places of public accommodations in Title III, and transportation

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¹⁷⁸ 42 USC § 12101(a)(5).

and other areas not relevant to employment. As summarized in Chapter 1, it provides three definitions of disability, only one of which an individual must meet to qualify as a person with a disability. The first definition requires having a physical or mental impairment that substantially limits one or more major life activities. This definition is often referred to as the “actual disability” prong.¹⁷⁹ Congress prescribed a broad interpretation for all of the terms in this definition. The second definition requires having “a record of a physical or mental impairment that substantially limited a major life activity.”¹⁸⁰ Some refer to this as the “record of” prong. This definition applies to someone who, although not currently experiencing a physical or mental impairment that substantially limits a major life activity, met the definition in the past. The third definition applies to people whom others regard as having a substantially limiting impairment.¹⁸¹ This means that others treat the individual differently, including committing actions prohibited by the ADA, because of an actual or a perceived impairment that is not both “transitory and minor.”¹⁸²

Individuals who seek employment fall under Title I’s ADA protections if they are “qualified individuals with disabilities.” Qualified individuals with disabilities are those who satisfy “the requisite skill, experience, education and other job-related requirements of the employment position” they want and “with or without reasonable accommodation, can perform the essential functions of such position.”¹⁸³

The ADA defines reasonable accommodations as modifications to the job application process to allow for access to the process, modifications to the work environment or the way work is usually performed that enable a person to perform the essential functions of the job, and/or other modifications that allow an individual to enjoy all of the privileges of employment.¹⁸⁴ Absent undue hardship, employers must make reasonable accommodations for individuals who meet the “actual disability” and “record of” definitions¹⁸⁵ if requested. The employer also needs to be aware that the individual is a person with a disability, which requires that the employee or potential employee disclose his or her disability.^186,187

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¹⁷⁹ 29 CFR § 1630.2(g).

¹⁸⁰ 29 CFR § 1630.2(g)(1)(ii).

¹⁸¹ 29 CFR § 1630.2(g)(1)(iii).

¹⁸² 29 CFR § 1630.2(g)(1)(iii).

¹⁸³ 29 CFR § 1630.2(m).

¹⁸⁴ 29 CFR § 1630.2(o)(1). This section was not affected by the ADA Amendments Act of 2008.

¹⁸⁵ Employers need not make reasonable accommodations for people who only meet the “regarded as” prong for the definition of individuals with disabilities.

¹⁸⁶ 29 CFR § 1630.9.

¹⁸⁷Morisky v. Broward County, 80 F.3d 445 (11th Cir. 1996).

The ADA defines undue hardship as “an action requiring significant difficulty or expense” when viewed in the context of four factors¹⁸⁸: the nature and cost of the accommodations, the overall financial resources of the facility or facilities and the business entity itself, the potential impact of the accommodations on operations, and the type of operation of the business. Thus, while cost may be an issue for a small business, other circumstances may render accommodations an undue hardship for larger businesses for other reasons, such as the accommodations’ interfering with the ability of other employees to perform their jobs.

For example, the Equal Economic Opportunity Commission’s (2002) Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act explains that as a reasonable accommodation, employers are not required to lower production rates or quality standards, nor are they required to eliminate essential functions. Further, employers are not required to provide personal-use items such as eyeglasses, wheelchairs, and hearing aids for use outside the workplace. As the guidance states:

Thus, reasonable accommodations are limited to enabling the performance of a specific job for which an applicant with a disability applies, and the legal obligation to make reasonable accommodations applies only to work site and workplace accommodations that are not an undue hardship. Employers are not required to provide items considered personal items, such as wheelchairs, hearing aids, augmentative communication devices, and prosthetic devices, that are specifically excluded from the definition of reasonable accommodations under the ADA.

It is important to note as well that air carriers are exempt from the ADA, although the act covers airports and the services provided within them. The Air Carrier Transportation Act (ACTA) provides guidelines for the transport of people with disabilities within aircraft,¹⁹⁰ but while an important piece of legislation, it has significant shortcomings. Some jobs require periodic air travel, especially as one advances within an organization. Unfortunately, ACTA does not require and most airlines do not provide

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¹⁸⁸ 42 USC § 12111 (10)(A)(B).

¹⁸⁹ The section referenced was not affected by the ADA Amendments Act of 2008.

¹⁹⁰ Air Carrier Access Act, codified at 14 CFR § 382.1 et seq. (2009).

adequate seating for individuals with severe disabilities, especially in coach. In addition, such individuals often find bathrooms on aircraft inaccessible, and onboard wheelchairs are inadequate.

Employer Accommodations

Subject to the limitations concerning undue hardship and personal-use items, the ADA provides that “reasonable accommodations” made by employers

The Job Accommodation Network (JAN) is a service of the U.S. Department of Labor’s Office of Disability Employment Policy (JAN, 2016). In 2004, JAN initiated an ongoing study based on interviews of employers, representing a variety of sizes and industries, who had contacted JAN with questions about workplace accommodations and/or the ADA.¹⁹³ Employers consistently report that most accommodations they make are at no or low cost (JAN, 2016). Of the 700 employers who provided cost information related to accommodations, 410 (59 percent) reported that accommodations needed by employees were provided at no cost; 36 percent (n = 256) provided the accommodations for a one-time cost; only 4 percent (n = 25) reported that providing accommodations “resulted in an ongoing, annual cost to the company”; and 1 percent (n = 9) reported that accommodations resulted in a combination of one-time and annual costs (JAN, 2016). Available employer cost data show that “the typical one-time expenditure by employers was $500” (JAN, 2016, p. 4).

At the federal level, section 504 of the Rehabilitation Act of 1973 protects “qualified individual[s]” who have a disability from exclusion from, denial of benefits of, or discrimination under any program that receives federal monies or any federal employer. Although each federal agency develops its own section 504 regulations, common requirements include “reasonable accommodation for employees with disabilities; program

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¹⁹¹ 42 USC § 12111(9) (1994); 29 CFR § 1630.2(o)(2)(i-ii) (1997).

¹⁹² The section referenced was not affected by the ADA Amendments Act of 2008.

¹⁹³ Between January 2004 and December 2006, 1,182 employers were interviewed, and between June 28, 2008, and July 31, 2016, 1,157 were interviewed.

accessibility; effective communication with people who have hearing or vision disabilities; and accessible new construction and alterations” (U.S. Department of Justice, 2009, Rehabilitation Act). The Computer/Electronic Accommodations Program (CAP), for example, is a centrally funded program that provides reasonable accommodations for Department of Defense employees with disabilities. The program’s mission “is to provide assistive technology and accommodations to support individuals with disabilities and wounded, ill and injured Service members throughout the Federal Government in accessing information and communication technology” (CAP, 2017). In 2000, CAP was granted “the authority to provide assistive technology, devices and support services free of charge to Federal agencies that have a partnership agreement with CAP” (CAP, 2017).

Among states, employment of people with disabilities is addressed in different ways. In 2009, for example, Massachusetts developed and adopted its Strategic Plan to Make Massachusetts a Model Employer for People with Disabilities (Commonwealth of Massachusetts, 2009). In 2010, as part of this plan, the state began to collect data on the reasonable accommodations it provided to its own employees. Data for three quarters of 2010 showed that the state had made a total of 1,319 reasonable accommodations “ranging from duty and schedule modifications to furniture and equipment acquisition” (AT Program News, 2011):

• The most common type of accommodation made was in the category of furniture and equipment (from specialized seating to computers), at an average cost of $262.00.
• The most expensive category tracked was telecommunications, with an average cost of $530.00.
• The average cost of all reasonable accommodations made during these quarters was $170.00.

Several global and national employers have targeted hiring for people in certain disability groups. For example, Walgreens and CVS target people with developmental disabilities and autism in their targeted hiring program. SAP, Microsoft, and AT&T target autistic adults. Ernst and Young has won awards for its diversity hiring; it has also targeted autistic adults to fill 1 percent of its workforce. These employers often go above and beyond what the ADA requires, providing special training, such as assistance with time management, communication, and workplace rules and etiquette. While there is no standard set of AT that autistic people use, the assumption is that these exemplar employers provide some AT to meet each individual’s needs for an accessible workplace.

JAN is “the leading source of free, expert and confidential guidance on workplace accommodations and disability employment issues” (ODEP,

n.d.). “Working toward practical solutions that benefit both employer and employee, JAN helps people with disabilities enhance their employability, and shows employers how to capitalize on the value and talent that people with disabilities add to the workplace” (JAN, n.d.). JAN offers free one-to-one consultation on workplace accommodations and the ADA via phone and online (JAN, n.d.). Common reasonable accommodations include physical alterations to buildings and/or equipment to provide access for someone with mobility issues, flexible scheduling of work hours, purchase/installation of AT that is not a personal-use item, and allowing employees to work from home (Balser, 2007). Most of the accommodations provided are low-cost solutions that do not include the AT that is the subject of this report.

HEALTH LITERACY, EDUCATION, AND KNOWLEDGE OF ASSISTIVE PRODUCTS AND TECHNOLOGIES

Health literacy is defined as “the degree to which individuals have the capacity to obtain, process, and understand basic health information and services needed to make appropriate health decisions” (HHS, 2000b, 2007, p. 2.1). A variety of personal and systemic factors affect individuals’ health literacy, including the knowledge of health topics and communication skills of professionals as well as lay persons, culture, and situational demands (HHS, 2007). People’s health literacy affects their ability to

• Navigate the health care system, including filling out complex forms and locating providers and services
• Share personal information, such as health history, with providers
• Engage in self-care and chronic disease management
• Understand mathematical concepts such as probability and risk. (HHS, 2007, p. 2.1)

The 2003 National Assessment of Adult Literacy (NAAL), which included a component on health literacy, examined the English literacy of more than 19,000 adults (aged 16 and older) in the United States (Kutner et al., 2006). The health literacy measures focused on three domains: clinical, prevention, and navigation of the health care system. Tasks typically associated with a provider–patient encounter were represented in the clinical domain. Prevention involved tasks associated with “maintaining and improving” one’s health, including disease prevention, early intervention, and managing chronic illness (Kutner et al., 2006, p. 3). “Activities related to understanding how the health care system works and individual rights and responsibilities” were included in the domain of navigating the health care system (Kutner et al., 2006, p. 3).

The materials presented were “selected to be representative of real-world health-related information, including insurance information, medicine directions, and preventive care information” (Kutner et al., 2006, p. 3). There were 28 health literacy tasks “designed to elicit respondents’ skills for locating and understanding health-related information and services and to represent the three general literacy scales—prose, document, and quantitative—developed to report NAAL results” (Kutner et al., 2006, p. 3).

Overall, 53 percent of respondents demonstrated intermediate health literacy, 12 percent demonstrated proficient health literacy, 22 percent demonstrated basic health literacy, and 14 percent demonstrated below basic health literacy (Kutner et al., 2006). Notably, women demonstrated a higher average health literacy than men, and adults aged 65 and older demonstrated lower average health literacy than those in younger age groups. White and Asian/Pacific Islander adults demonstrated higher average health literacy than black, Hispanic, American Indian/Alaska Native, and multiracial adults. Hispanic respondents demonstrated the lowest average health literacy among the different racial/ethnic groups. English language proficiency and education level also were associated with health literacy. Individuals who spoke English only prior to high school demonstrated higher average health literacy than those who were non-English speakers or who spoke other languages in addition to English. Average health literacy increased with educational level, beginning with high school: 49 percent of individuals who “never attended or did not complete high school” demonstrated below basic health literacy, while just 15 percent of high school graduates and 3 percent of college graduates (bachelor’s degree) demonstrated below basic health literacy. Poverty level also was associated with health literacy, with individuals living below the poverty level demonstrating lower average health literacy than those living above it (Kutner et al., 2006).

The complexity of health information may contribute to lower health literacy than one might expect even among individuals with higher levels of educational achievement (HHS, 2007). In addition, differences in language and culture may affect health literacy. Not only is limited proficiency in English a potential barrier to understanding health information; health care specialties also have their own languages that are acquired by practitioners, which may complicate communication with the lay public (HHS, 2007). Culture (i.e., medical culture as well as different world cultures) also plays a role in health literacy. Different cultures may demonstrate different approaches to matters of health, disease, disability, and authority (e.g., health care providers, insurance programs and providers), which can affect how individuals respond to health information they receive. Cultural and linguistic competency among health professionals can facilitate health literacy.

As in all areas of health care, consideration of health literacy is important when thinking about the use of assistive products and technologies. One study looking at a sample of written materials available to amputees containing information about preoperative care, the surgical procedure, and postoperative prosthetic care concluded that “more than one-third to half of the general population would have difficulty understanding the written information” in the materials (Hrnack et al., 2009). Several studies examining health literacy and hearing health care indicate a similar mismatch between the language used in written materials and by providers and the literacy levels of the individuals receiving care (Atcherson et al., 2013; Caposecco et al., 2014; Nair and Cienkowski, 2010; NASEM, 2016, p. 239ff.).

Education of professionals with respect to health literacy and cultural and linguistic competency is a first step toward increasing the health literacy of their clients in terms of understanding their health challenges and options for addressing them (AAA, 2012; Smith and Gutman, 2011). Education of the public with respect to disability, impairments, and the variety of assistive products and technologies available is important as well. Such education not only may provide a basis on which health care providers could build when interacting with patients but also could help inform users and potential users of assistive products and technologies about the range of options available to them. Individuals’ acquisition of assistive devices may be promoted by their knowledge of their device options, their needs, their coverage options, and their means of pursuing the device(s) they need.

Community-based education as well as education campaigns targeted toward employers may help dispel myths, misperceptions, stereotypes, and fears often associated with disability (Lengnick-Hall et al., n.d.; McNaughton et al., 2003; Shinohara and Wobbrock, 2011). Employers and others unfamiliar with AT and disabilities may place barriers on the pathway to employment for individuals who use AT based on misperceptions about their ability to perform the job (Lengnick-Hall et al., n.d.; Shinohara and Wobbrock, 2011). Dissemination of publicly available, evidence-based information on assistive products and technologies and their use by individuals in the workplace may help reduce barriers to employment.

FINDINGS AND CONCLUSIONS

Findings

7-1. Financial access to assistive products and technologies and qualified providers varies significantly across reimbursement and funding sources in the United States.

7-2. Numerous pathways exist to access assistive products and technologies and related services based on eligibility for coverage.

7-3. Different coverage sources vary with respect to their mission, their eligibility requirements, and the types of assistive products and technologies and related services they cover:

• Medicaid programs vary from state to state with respect to both the individuals who are eligible to enroll and the health care services that are covered.
• Medicare funds only wheelchairs that are required for an individual to accomplish mobility-related activities of daily living within the home.
• Original Medicare (Part B) does not cover hearing aids.
• Medicare Advantage plans may cover hearing aids, depending on the plan selected.
• Private health insurance coverage for assistive products and technologies varies depending on the plan and, in some cases (e.g., hearing aids), the state in which the beneficiary resides.
• Some coverage options are designed specifically to provide pathways to employment or return to work, while others focus on medical necessity.
• The Veterans Health Administration (VHA) is an integrated health care system that provides high-quality, comprehensive, interdisciplinary care and assistive products and technologies to veterans.

7-4. Thorough documentation by qualified medical professionals of an individual’s medical and functional need for specific assistive products and technologies is often critical to obtaining Medicaid approval and funding.

7-5. Accurate assessment and selection of assistive products and technologies are critical for users as many Medicaid programs and other sources of coverage maintain an expected duration of use for particular devices and will not provide a replacement until this time period has elapsed.

7-6. Individuals’ acquisition of assistive devices may be promoted by their knowledge of their device options, their needs, their coverage options, and their means of pursuing the device(s) they need.

7-7. Representation by an attorney or advocate who is experienced in health law could help individuals secure Medicaid or Medicare coverage and approval of various medical supplies, equipment, and assistive devices.

7-8. The distribution of funds varies among state vocational rehabilitation agencies and school districts.

7-9. Loss of coverage of and access to assistive products and technologies and related services among youth of transition age is a significant impediment to their successful transition to work, vocational readiness, or further education.

7-10. Workplace reasonable accommodations are limited to enabling the performance of specific jobs for which an applicant with a disability applies, and the legal obligation to make reasonable accommodations applies only to work site and workplace accommodations that are not an undue hardship. Employers are not required to provide items considered personal, such as wheelchairs, hearing aids, augmentative communication devices, and prosthetic devices, which are specifically excluded from the definition of reasonable accommodations under the Americans with Disabilities Act.

7-11. Health literacy, which may include knowledge about assistive products and technologies, varies greatly among adults in the United States, although individuals at lower socioeconomic levels generally demonstrate lower average health literacy.

Conclusions

7-1. Coverage generally is quite limited for assistive products and technologies and for the services of qualified providers and teams with the knowledge, skill, and expertise to properly evaluate, fit, train, and monitor people in the use of those products and technologies. Coverage varies considerably from case to case, state to state, district to district, urban to rural and frontier areas, and funding source to funding source. [Findings 7-1, 7-2, 7-3]

7-2. Although coverage for the cost of assistive products and technologies may be available, considerable variation exists from case to case, state to state, district to district, urban to rural and frontier areas, and funding source to funding source in the availability of the devices themselves and of the services of qualified providers and teams with the knowledge, skill, and expertise to properly evaluate, fit, train, and monitor people in their use. [Findings 7-4, 7-5, 7-8]

7-3. Individuals of low socioeconomic status are limited in their access to coverage for assistive products and technologies and related services, as well as in their ability to obtain the devices and services when they are covered. [Findings 7-6, 7-8]

7-4. A variety of personal factors, including ethnic, cultural, and language barriers, may affect access to assistive products and technologies and related services when they are covered. [Findings 7-1, 7-2, 7-6, 7-8, 7-9, 7-10]

7-5. Salient regulations and coverage policies do not appear to be keeping pace with advances in assistive products and technologies and their potential to enhance activities and participation for individuals with impairments. [Findings 7-3, 7-8, 7-9]

7-6. Some coverage models, such as those of the VHA, vocational rehabilitation agencies, private disability carriers (e.g., Unum and Prudential), and some private health insurers, are more holistic than others, providing access to a greater range of assistive products and technologies and related services that are appropriate to meeting individuals’ needs and facilitating their ability to work. [Finding 7-3]

7-7. Ensuring continued access to appropriate assistive products and technologies and related services is vital to promoting a successful transition from high school to pathways to employment. [Finding 7-10]

7-8. Knowledge and training that empower users to self-advocate or have a significant other (e.g., family member, friend, or professional) advocate for them can lead to successful access to appropriate assistive products and technologies and related services. [Findings 7-6, 7-7, 7-11]

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ANNEX TABLE 7-1
Summary of Payer or Coverage Options for Assistive Devices

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