Technology Assistance Program Position Paper

Funding for Assistive Technology Devices and Services for Persons with Developmental Disabilities through Florida's Residential Services Programs

ATTENTION: All individuals with developmental disabilities, parents, family members, guardians, advocates, disability organizations and other interested or effected parties: if you are an individual with a developmental disability (DD) or know someone who is, you have the right to receive adequate and appropriate assistive technology (AT) devices and related services. This includes the right to be assessed for AT with a qualified evaluator.

In the federal Bill of Rights for Individuals with DD, the U.S. Congress provides the right to appropriate treatment, services, and habilitation in the most integrated setting. 42 U.S.C. § 6009(1) and (2).

The Advocacy Center for Persons with Disabilities, Inc. (Advocacy Center) Technology Assistance Program (TAP), is working to protect the lawful rights of individuals with DD in obtaining needed, adequate, and appropriate AT devices and services. The Advocacy Center is currently litigating in Prado-Steiman v. Chiles, on behalf of individuals with DD who are receiving inadequate services or who have been denied services under the Home and Community-Based Waiver (HCBW). This litigation includes AT devices and services. This lawsuit seeks to enforce individual's right to due process and to adequate community supports and services.

Currently, there are more than 20,000 individuals with DD who are eligible for services under the HCBW. TAP contends that the state through the Department of Children and Families Developmental Services Program (DCF/DS), as a matter of practice, unlawfully denies and routinely terminates services, including AT devices and services. Unfortunately, for too many individuals with DD, their families, and representatives, the denial of critical HCBW services results in the forced institutionalization of individuals with DD.

The Eleventh Circuit Court has issued two recent decisions - both strongly endorsing community inclusion for persons with disabilities, incorporating AT devices and services as an essential component.

Without AT devices, supports and services provided in the community, far too many individuals with DD will continue to be forced to live in restrictive environments or institutions in order to receive services. These services should be provided at home and in the most integrated settings in the community.

For your reference and information, AT devices, supports and services are defined in the Assistive Technology Act of 1998, signed November 13, 1998, P.L. 105-394, as follows:

Assistive technology device: Any item, piece of equipment, or product system, whether acquired commercially off-the-shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of individuals with disabilities.

Assistive technology service: Any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology service, including training and support services.

As a result of Florida's DCF/DS program's failure to provide appropriate and adequate services, including AT devices, supports and services, individuals with DD are unconscionably subjected to pain and emotional harm. Furthermore, individuals with DD experience atrophy and regression, losing skills that they may have previously gained in school and through other therapeutic services, such as speech, occupational and physical therapies. In some cases, without the appropriate and adequate AT devices and services individuals with DD are at risk of death. For too long, DCF/DS's practice of applying arbitrary standards for services covered under the HCBW has resulted in discrimination on the basis of disability. Florida remains in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. 794(a); 45 CFR 84.4(b)(4)(i) as well as the Americans with Disabilities Act (ADA). If the state would have provided appropriate and adequate AT devices and services, institutionalization in many cases might have been prevented.

On July 6, 1998, the U.S. Department of Justice (DOJ) left no doubt that the ADA integration mandates applies to community-based services for individuals with disabilities. DOJ stated that the "integration requirement applies to all State activities, including the provision of community-based services to individuals with disabilities."

The state is required to comply with all relevant provisions of the Medicaid Act and its regulations in regards to HCBW. For your information, the federal government reimburses Florida Medicaid for approximately 55% of the medical services it provides to the public. Each state participating in the Medicaid program must cover certain mandatory services, such as AT devices and services. 42 U.S.C. § 1396a(a)(10)(A).

The U.S. Congress created the HCBW in order to allow individuals with disabilities to live in the most integrated settings in their communities. The creation of this important Waiver is intended to avoid the unnecessary warehousing of individuals with disabilities in restrictive environments or in institutions. Section 1915(c) of the Medicaid Act permits states to offer, under a waiver of statutory requirements, an array of home and community-based services that an individual with a disability needs to avoid institutionalization.

In addition under HCBW, there are provisions that states may include as "medical assistance" the cost of home or community-based services. This includes AT devices, supports and services, which, if not provided, would result in services being provided in a nursing home or an Intermediate Care Facility for Individuals with Developmental Disabilities (ICF/DD).

Congress intends that a Waiver should not be granted unless the State provides assurances that "necessary safeguards (including adequate standards for provider participation) have been taken to protect the health and welfare of individuals provided services under the waiver."

In Does 1-13 v. Chiles, 136 F.3d 709 (11th Cir. Court 1994), the Court held that ICF/DD services, which include the provision of AT devices and services, must be provided timely, within 90 days. The Court also recognized that individuals eligible for ICF/DD services who had chosen the HCBW services in the community are entitled to the same promptness, therefore, it is incumbent upon the State to provide for its most vulnerable citizens. Congress asserts that the goals of the Nation properly include the goal of providing opportunities and support to "achieve full integration and inclusion in society, in an individualized manner, consistent with unique strengths, resources, priorities, concerns, abilities, and capabilities of each individual." 42 U.S.C. § 6000(a)(10).

A policy that complies with federal statutory and regulatory guidelines must be developed to provide immediate services and supports with reasonable promptness for persons who require the use of AT devices and supports. If you, or someone you know with a disability is having difficulty obtaining adequate and appropriate AT devices and services or assessments, you may contact the Florida Alliance for Assistive Services and Technology (FAAST) at 1-800-322-7881 or the Advocacy Center.

Notice: This fact sheet is not a substitute for legal advice.