Assistive Technology and Rights of Persons With Disabilities
People with disabilities, including those who use assistive technology, have many rights. Here is just a summary of some areas with special protections of which you should be aware.
What is "assistive technology"? Assistive technology or "AT" is any item, piece of equipment, or product system that is used to increase the functional capabilities of persons who have a disability. Examples of AT include a device such as a wheelchair, a hearing aid, a ramp to get in and out of your home, or changes in a vehicle designed to accommodate a disability. Likewise, services like training in how to use such a device can be considered assistive technology.
Questions to Consider When Choosing a Device: What will the AT help you do? Will you use it at home, at work or at school? Will you move the device or will it stay in one place? Can you use it on your own or will someone help you? Do you have any physical limits or other limits that would make it hard to use some kinds of devices?
You may ask your doctor, therapist or other health care provider to help you choose a device. Also, if you have insurance, the company may have some requirements about equipment for which it will pay.
Where to Get Assistance
If you are a person who uses AT and have questions about choosing AT or your rights regarding using or paying for AT, you may want to speak to a lawyer or contact a program called EasterSeals Iowa Assistive Technology Program (details are at the end of this article.)
The federal Fair Housing Act forbids discrimination against people with disabilities. It applies to housing that is used as a residence, and includes houses, apartments, condominiums, and even nursing homes. It does not apply to transient stays at motels or hospitals and the like. There are some exceptions to the law. It does not apply to rental units in a building with four or fewer families, if the owner lives in one of the units. The federal Fair Housing Law also requires that landlords make "reasonable accommodations" (changes) for persons with a "handicap." The landlord must make reasonable accommodations in rules, policies, practices, or services, if the changes are necessary for the person with a disability to have equal opportunity to use and enjoy a dwelling. (For example, if there was a no pets policy, the landlord might be required to let you have a seeing-eye dog if you are Blind). The landlord must also allow a tenant to make reasonable modifications for physical changes in a dwelling at the tenant's expense (such as a ramp for wheelchair access, or widening doors). The tenant may have to remove the modification at the tenant's expense. Also any "new" housing (any housing first occupied after March 13, 1991) must meet certain standards of accessibility.
Fair housing rules can be complicated. Tenants who have questions about how these laws apply to them should see a lawyer. To find out which Iowa Legal Aid office serves your area, call 1-800-532-1275 (Voice and TTY). If you are concerned that your rights may be violated, you may also contact the Iowa Civil Rights Commission toll-free at 1-800-457-4416 or call (515) 281-4121. Their fax number is (515) 242-5840.
Several federal laws provide rights to students with disabilities. The Individuals With Disabilities Education Act (IDEA) requires that children with disabilities be given a free appropriate public education. This includes three things:
- specialized education to meet the child's needs;
- related services (such as transportation, speech therapy, physical therapy or counseling, etc.); and
- supplementary aids and services which will help the child function better in regular classrooms. This last item can include AT.
The possible use of AT for a child needs to be considered and written in the child's "individualized education program," usually shortened to "IEP." This is the plan the school will use to educate the child. The IEP is reviewed at least once per year. The parents (and if appropriate, the student) are supposed to be full partners in developing the IEP.
The need for some AT devices or services may be easy to spot. For example, if a child requires a wheelchair to get around, the need is clear. If a child has a reading disability, it may not be as clear that AT is needed. Thousands of AT devices are on the market. Some of them could help children who cannot learn to spell or do not have readable handwriting. Other devices may help impulsive children pay attention to the part of the page they are supposed to work on.
Busy school employees and others at the IEP meeting may not even think of asking for an AT evaluation. For these reasons, parents who want to know about AT for their child may want to make a written request for an AT evaluation. The parents can do this at any time. In Iowa, schools can get help from the Area Education Agency, or AEA. Each AEA has an assistive technology team that can do an AT assessment. If the school for some reason does not follow through with an assessment, the parents could call the AEA directly. The family does not have to pay for the assessment. Parents who do not agree with the AT evaluation by the school can request an independent evaluation at school expense.
If your child needs the AT to succeed in school, either in special education or regular education, the school will probably pay for it. The school doesn't have to do everything possible to compensate for the disability. It does have to ensure that your child is benefitting from instruction. Also, the school must put your child in the "least restrictive environment." This means your child will be in regular classes, and with regular education kids, as much as possible.
If your child does not need special education, but still has a disability, the child may be protected by another law-Section 504 of the Rehabilitation Act of 1973. This law protects people with disabilities from discrimination in federally-funded programs. Nearly all schools get federal funds, so Section 504 would apply to them. Section 504 also requires reasonable accommodation of a disability. If your child does not need special education, but does need some accommodations, you may want to ask for a "504 plan." The reasonable accommodation requirement of this law may be used to get AT for your child in some cases. Both Section 504 and the IDEA have an appeal process.
Other means such as Medicaid or private insurance may help a family get the AT device a child will use in school. Parents do not have to use these other resources, but they may choose to do so. If a payment problem comes up, you may want to ask for help from Iowa Legal Aid (1-800-532-1275) or Infotech/Iowa Program for Assistive Technology.
Iowa's Assistive Devices "Lemon Law"
In Iowa, the Assistive Devices Warranty Act gives you certain rights concerning the repair or replacement of a new assistive device that isn't working right. The Assistive Devices Warranty Act became law in 1998. It covers the "consumer" who buys or leases an assistive device. In some cases, it also covers someone other than the original consumer who uses the device. The company that sells or leases an assistive device is the manufacturer or dealer. The company cannot require the consumer to give up any rights under the Assistive Devices Warranty Act. Any other rights provided by law or by a guarantee of the manufacturer or dealer are in addition to what the Assistive Devices Warranty Act provides.
The Assistive Devices Warranty Act covers a new assistive device for up to at least a year after delivery to the original consumer. It covers many products such as a walker, a one-handed computer keyboard or a transfer bench for a bathtub. This law does not cover devices implanted into or directly attached to a person's body. The law does not cover hearing aids already covered by a warranty or service agreement from an audiologist or hearing aid dealer. A car is not an assistive device, but a wheelchair lift or a driving control persons who have a disability use to drive would be.
The Assistive Devices Warranty Act warranty guarantees the device will not have any "nonconformity." That means it will not have a serious defect, malfunction or condition that makes it not work right or makes it unsafe. The Assistive Devices Warranty Act warranty does not cover damages a consumer causes by improper use or neglect. If an assistive device is being repaired, the consumer may be entitled to a "loaner" device.
Getting Assistive Technology Through Medicaid
Many people either have or are eligible for Medicaid (Title 19). You can either get it directly by being low-income, or be eligible through a variety of Waiver Programs. To find out if you are eligible for Medicaid, call your local Department of Human Services office. Medicaid in Iowa does pay for a wide variety of AT, as long as that equipment is medically necessary.
If you have Medicaid and you need a specific device, work with your case manager to file a claim and get funding. To get AT covered through Medicaid, you will need a doctor's prescription, and in some cases you will need to file for what is called "prior approval." It is always a good idea to work with a professional who understands the equipment you need to evaluate your situation and make sure to prescribe the most appropriate and beneficial device for you.
Sometimes claims to Medicaid for equipment are denied because the Department of Human Services says the equipment isn't medically necessary or because it's not a covered item. You always have the option to file an appeal and there is help with this process. InfoTech can provide free information on new and used equipment, as well as funding resources. They also can make referrals for legal advocacy specific to AT.
Getting Assistive Technology Through Medicare
You may be eligible for Medicare if you are:
- a Social Security recipients over the age of 65;
- a Social Security recipient who is permanently disabled;
- receiving railroad retirement benefits;
- suffering from end stage renal disease.
Unlike Medicaid, income and assets are not part of the consideration in determining eligibility for Medicare benefits. Procedures for eligibility determination are pretty much the same from state to state.
Medicare pays part of the costs of medical care. Coverage is divided into parts A and B. There are times when deductibles and co-insurance are required, similar to coverage provided by private insurance companies.
AT is addressed under Part B "durable medical equipment." Medicare will pay for medical care and things like wheelchairs or other things that might be "durable medical equipment" if there is evidence that the service or equipment is reasonable and necessary for the Medicare recipient. It also has to really be a "medical" item, and not something simply for your "convenience." Medicare recipients do have appeal rights if claims for payment for medical services or equipment are denied.
Where to Get Help with Assistive Device Consumer Problems
To find out about getting equipment to help with everyday living and getting around, you can call EasterSeals Iowa Assistive Technology Program (866) 866-8782 (toll-free). Their website is at https://iowaaat.org.
If you have problems with an assistive device, you may have some rights under Iowa law. If you need a lawyer but can't afford one, you may be able to get help from Iowa Legal Aid. Call (800) 532-1275 or visit ILAW on the Web at www.iowalegalaid.org. You can also contact the Iowa Attorney General's Consumer Protection Division at 515-281-5926 and the Fax: (515) 281-6771 to file a complaint or for advice. Their website is https://www.iowaattorneygeneral.gov/for-consumers.