STAR Point Transcript - Minnesota Disability Law Center
Guest: Jennifer Giesen
Host: Earle Harrison
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EH: Hello, and welcome to another edition of STAR Point. STAR Point is a project of the Minnesota STAR Program. STAR stands for a System of Technology to Achieve Results. Our guest today is Jennifer Giesen, an attorney for the Minnesota Disability Law Center. Welcome, Jennifer.
JG: Thank you.
EH: Why don't we start out by telling us what the Disability Law Center does.
JG: Sure. The Minnesota Disability Law Center is a statewide project of the Legal Aid Society of Minneapolis. Essentially, we're a nonprofit law firm for people with disabilities, and we work on a variety of issues ranging from healthcare issues to school law issues to access issues or questions that may come up under the Americans with Disabilities Act, for example, a whole wide range of issues, but the vast majority of the kind of work we do is in helping people to access and get services either through the state or through the county. There's no charge for our services and there's no income test to get our services. Essentially, you have to be a person with a disability that has a legal issue related to their disability, and it has to be an issue that our office will work on or has expertise in.
EH: Is it a federally-funded program or --
JG: We -- our primary funding sources do come from the federal government, although we are not part of the federal government or part of the state government. We are a nonprofit. Then we receive some other funding through sources such as the United Way and other private foundations.
EH: Okay. So you mentioned that you deal a lot with access issues. Anything having to do with assistive technology or --
JG: Sometimes we'll help -- first of all, we'll help people access county and state funding sources for assistive technology, and then sometimes we'll work on issues of helping people to gain access to use their assistive technology in a school setting or a post-secondary or college setting. Sometimes we'll help people with access issues related to public services or public accommodations, those kinds of things.
EH: And what are the funding sources, and who funds assistive technology?
JG: Well, there are several major programs that fund assistive technology. Medicare and Medicaid are probably the two biggest funding sources for people with disabilities for medical types of assistive technology. Of course, school districts also fund assistive technology when it is necessary for a student to receive a free and appropriate public education. The Rehabilitation Services Division of the Department of Economic Security here in our state, also known as Voc Rehab, funds assistive technology for people who need it in order to get or keep a job, so workplace assistive technology. And, of course, private insurance is also another major funding source for people who have private insurance. And again, that would fund more medical types of the assistive technology.
EH: And when does Disability Law Center step in for students, say, K through 12?
JG: Well, I think school districts do recognize that they have the burden of identifying and providing assistive technology when it is necessary for the student to receive FAPE, the free, appropriate, public education, but the Disability Law Center could step in at a variety of stages. Sometimes we get a call from a parent who just wants to know, "Is there assistive technology that can help my child learn better in school?" And we might give them some advice about what -- you know, what the steps are to proceed with trying to look at and ultimately obtain some assistive technology.
In the school setting, school districts are required by IDEA, the Individuals with Disabilities Education Act, to ask, for every single student, whether there is assistive technology that the student needs. They're required to do that for every student who is on an individual education plan no matter what the disability is. And so the first step is that at every annual IEP team meeting the team must ask, "Is there any assistive technology that we should look at for this student?" And the next step -- if the team feels there may be some assistive technology that the student would require, the next step then is to do an assistive technology evaluation with people who have knowledge and expertise about assistive technology. And then what happens next depends on what the outcome of that evaluation is and what the recommendations of that evaluation is. But, ultimately, that information would come back to the IEP team, and it would be the IEP team that would determine whether or not assistive technology is necessary for the student to receive FAPE.
The Disability Law Center then, the majority of the kind of work we would do is to then, if the -- if the evaluation were to recommend assistive technology and the school were refusing to provide it, to step in and help parents through the administrative hearing process, which is the legal proceeding to try to work out a disagreement that you might have with the school district about the types of services that they are providing.
EH: Okay. And what about Medicaid? Where do you guys come in when there's a piece of technology that is necessary but nobody is willing to pay for it?
JG: Sure. Medicaid is probably the area where we do our greatest amount of work, and, again, we can be involved at many stages of the process. Sometimes it's providing people information about how do you get technology through Medicaid, and in our state Medicaid is called the Medical Assistance Program, or MA. And so sometimes it's outlining what the process will be for people, and, again, we could intervene at any point in that process. That process also should begin always with an evaluation by a medical expert, either an occupational therapist, a physical therapist or some sort of medical doctor who does an evaluation to determine what kind of assistive technology you need.
EH: And can you give us some examples -- of course, without mentioning any names -- of some cases where you've needed to intervene and it's just been a very difficult process but you've managed to get the job done and get the person the equipment that they needed?
JG: Sure. I'll give you two examples of where we intervened at different stages in the process. One case involved a woman who was trying to obtain a standing wheelchair, and we ultimately -- we came into that process very late. She was at the point where Medical Assistance had denied her request for a wheelchair several times, and we helped her to file an appeal at the Department of Human Services, where we then had a fair hearing in front of the Department of Human Services referee and proved -- or presented enough evidence to the referee to convince her to order the Department of Human Services to provide the standing wheelchair.
And an administrative hearing is sort of like what you might see on a television courtroom show in the sense that you present your evidence through the calling of witnesses and asking questions and presenting documents and other exhibits, and then ultimately in the end the referee issues a decision, much like a judge would. However, it's not like a courtroom in the sense that it's a much more relaxed and informal proceeding for people to go through. It doesn't have all of the formalities, for example, of a courtroom.
Another example where we intervened much earlier in the process was for a young man who was trying to obtain what's called a rotational tilt on his wheelchair. He likewise had been denied the funding by Medical Assistance for the rotational tilt, but we stepped in much earlier in the process, and instead of going through the administrative hearing process, we then were able to help him collect additional documentation that we submitted to the Department of Human Services, and based on that additional documentation, they ultimately approved the device and he was -- he did not have to go through hearing to get that. So we tend to intervene at several different places in the process.
I think the most frustrating situations and cases where we have not been successful are when -- it usually comes down to a question of: Is this the least appropriate costly alternative for this person? Under Medical Assistance, when you request a piece of equipment, there are essentially six things you have to prove to them. The first thing you have to show is that the device you're requesting is medically necessary as determined by the prevailing medical community standards or usage, meaning it's the kind of thing that doctors would recommend for people with that type of disability. The second thing you have to show is that the device is appropriate and effective to the medical needs of the recipient, or the person requesting the device. It has to be timely, considering the nature and present state of the person's medical condition, meaning we don't want to provide a device that is not going to be effective at this point in time for someone.
The fourth thing you have show is that it has to be furnished by a provider with appropriate credentials, meaning a provider who has basically contracted to be a Medical Assistance provider with the Department of Human Services. It has to be the least expensive appropriate health service available. And, finally, the last criteria is that it has to be an effective and appropriate use of program funds.
Now, most often in the types of cases that the Disability Law Center would get involved in where we -- where I, at least, experience the most frustration is when the criteria of whether or not it's the least expensive appropriate alternative comes into dispute. In other words, from the Medical Assistance program's perspective, they're not required to fund the best or the most expensive device for a person, they're only required to fund the least expensive appropriate service available. And oftentimes there are good reasons why a person may need or want a more expensive device that's out there. For example, if you were looking at a variety of wheelchairs and one wheelchair cost a hundred dollars but the one you wanted costs $200, you have to show Medical Assistance why you're requesting the more expensive wheelchair and why the hundred-dollar wheelchair does not meet your needs.
Oftentimes what frustrates me is, again, Medical Assistance is a very medically -- a medical model type of program, so they're going to look at your medical needs and how this device meets your medical needs. But oftentimes people need equipment to help them simply be more independent in their home, more independent in the community, and the dispute or the disagreement often arises in that issue of whether somebody needs it simply to be more independent or whether somebody needs it because it's actually medically necessary. So, for example, that issue can come up not only with somebody wanting a wheelchair that has different features on it but may make them more independent in their home, but it can also come up with things like stair elevators or different kinds of lifts that someone may install in their home, and sometimes we can run into problems there. Those cases are the most frustrating for me, because my job as an advocate for the person is to try to get them the best device that I really can get for them that will make them the most independent and the most comfortable and so forth in their home. So --
EH: Okay. So, given a scenario that somebody's identified a need and they've got all the professional support that they need in terms of an assessment or an evaluation, you go before a referee and the answer is no. Is that the end of it?
JG: No, that's not necessarily the end of it. You have the right to the appeal, and if you lose the appeal, you have the right to ask the Department of Human Services for what's called reconsideration, which is, I have some more evidence I want to submit to try to show why the appeal should be overturned and I should essentially win my case. If you are unsuccessful with reconsideration, you then have the right to go into either state district court or federal district court with your appeal, and then there's appellate courts above even that.
But I think one of the things that people should be aware of is that, long before you even get to the appeal process, you are going through what's called the prior authorization process where you take all this information and you submit it to the Department of Human Services, the evaluation write-up that the physical therapist or occupational therapist does and any other documentation that you have of why you need this piece of equipment. That is submitted to the Department of Human Services and then reviewed by a team of experts there, and they are the people that make the decision for "yes" or "no." And oftentimes if there's a question, if you're requesting for something that is perhaps more expensive than something they usually would request or something that perhaps is not standard but more unusual, they may come back with more questions: "Give us more documentation. We have questions surrounding certain issues," and then you can submit additional information to them.
And I think one thing people should be aware of is that this can go back and forth several times, and so this process of asking for prior authorization can sometimes go on for several months, even before you get to the appeal stage, and so people need to be sort of prepared for that wait time. And that can be frustrating for people as well, because they need the equipment today.
EH: So I guess the lesson is, if you know you need the equipment, don't take "no" for an answer.
JG: Yeah. I mean, start the process early. You know, recognize that, you know, if you have a wheelchair and it's getting old or not working quite as well as it used to or going in for a lot more repairs, that you may need to start the process now of asking for a new one before the one you have totally breaks down. I think the second thing is never -- never take "no" for an answer. That is almost -- it's true in the Medical Assistance context, but it's really true in the private insurance world that oftentimes denials will get issued without much consideration given to it, and as you go down their appeal steps, many people are able to resolve their case far ahead of any -- any appeal hearing. So always appeal, appeal, appeal. That's my advice.
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EH: Hello, and thank you for listening. You're tuned to STAR Point, a project of the Minnesota STAR Program. My name is Earle Harrison, and my guest today is Jennifer Giesen, an attorney and advocate for Minnesota Disability Law Center, a nonprofit organization that focuses on a myriad of issues involving persons with disabilities in the state of Minnesota, and most notably for the work that they do in assuring that folks with disabilities who need assistive technology get it. If you're listening to this program via STAR's automated stream and you'd like to hear it again, fear not, you can find all of the STAR Point programs in the on-demand section of this site at www.admin.state.mn.us. Enjoy the rest of the show. This program was recorded September 9, 2003.
Talk a little bit about some of the controversy that arises with certain augmentative communication devices.
JG: Well, augmentative communication device controversies have come up in a couple of different situations. First of all, oh, ten years ago the Disability Law Center was doing lots and lots of appeals under Medical Assistance to try to get people augmentative communication devices. Now, ten years later, we are not seeing as many appeals as we used to because there is more of a history of funding that type of device, and the experts out there, the speech-language pathologists who do these augmentative communication device evaluations, they know what kind of evidence they need to submit in support of a request for a communication device. So the Medical Assistance funding of the communication devices is going better.
Medicare just recently, within the last couple of years, started funding communication devices. You know, prior to that people had a great deal of difficulty getting funding for communication devices under Medicare, and still under Medicare they will only fund a communication device for people who need it in their homes. So, for example, people who are in nursing homes are still being denied funding for communication devices through the Medicare system.
EH: Is there an underlying rationale for that or --
JG: Well, the underlying rationale is that Medicare is covering augmentative communication devices as part of their home health services. It's under that category of services. So it's funded for people who are in their homes, but then not funded for people who are in nursing homes or those sorts of living situations. Which is terrible, because the people who are in nursing homes, who, you know, may even be young but are there as a result of a stroke, where they lost their ability for speech and require a communication device in order to -- in order to have that ability to communicate with people. So, again, that would be covered if they were on Medical Assistance and in a nursing home, but not if they're on Medicare.
The other place where we run into a great deal of controversy regarding communication devices, of course, is in the school system. School districts could be required to fund augmentative communication devices. They are a more expensive piece of technology, costing, you know, up to six, seven thousand dollars sometimes, depending on how sophisticated the device is. There have been a number of court cases that have gone both ways regarding whether or not the school district has to provide communication devices.
The other thing that I just want to make people aware of is that even if the school district is not funding a communication device for a student who needs it, they have other resources they can use. Oftentimes private insurance will cover a communication device. Some policies do cover it, some policies do not. And then there are other funding programs they can look at, either Medical Assistance or, if they're already on Medical Assistance, they could also look at a waivered program.
EH: And it can only be a communication device, it can't have any other function?
JG: Well, they're getting more and more sophisticated, or so I'm told. There are some communication devices that are -- have the functional capability of things like a computer. And, again, you have to remember that most of the funding programs -- for example, private insurance or Medical Assistance funding -- they are medical model programs, so they are going to look at medical needs and do not want to fund devices that look more like a computer than a communication device. Again, when making a request, it's very important to stay focused on the medical necessity of the communication device as opposed to some of the other features the device may have that are not necessarily medically-based.
EH: Can it ever be justified, for example, a student -- you know, they've got their communication device, but they also need their computer in school. Can it actually serve that dual purpose under Medical Assistance or --
JG: It could potentially, as long as the -- again, the primary reason for the device is based on the medical need of having a method of communication. Some of the communication devices may come as just sort of an all-in-one package where they come with some other features, and, you know, at this point Medical Assistance wouldn't deny the communication device because it came with this other feature so long as its primary function was to be a communication device. I think that's the important thing. And technology is going to change, so what these devices may look like in five or ten years may be very different, and it's important to remember that when you're requesting funding from a source like Medical Assistance or a private insurance to stay focused on the medical necessity, not all the sort of neat other things the device can do.
EH: Okay. I heard that they actually -- in order for Medical Assistance to pay for a device, some of the -- if it's got the functionality of a computer, some of those features actually need to be disabled before they'll pay for it, which --
JG: Yeah, I've heard that too. Of course, under Medical Assistance you still have the option of paying for -- yourself for add-on features. So, for example, if you -- if Medical Assistance is going to fund the communication device and the person or parent wanted to purchase some sort of add-on feature to the device, there's nothing that prevents them from doing that. That's permissible under Medical Assistance laws. What they cannot do is say they're going to get Device A, which is the basic device, and get permission for that, and then actually go out and purchase Device B, which is much more sophisticated or has a bunch of different things on it. You have to be honest with Medical Assistance about what it is you're purchasing, but you are certainly allowed to purchase add-ons for your equipment. That would be permissible.
EH: Does MA ever work in partnership with other agencies, such as Voc Rehab?
JG: They do, and in fact they're required by law to work with them. I'll give you an example. There was a young man up in northern Minnesota who, prior to his accident, had been training sled dogs, and he was then in an accident and became disabled as a result of that accident and required the use of a wheelchair. After he had gone through a rehabilitation period, he decided he wanted to move back up to northern Minnesota and continue to train sled dogs. However, in northern Minnesota in the winter, with all the snow and everything else that they have up there, you're sort of standard power wheelchair is not going to be able to get through the snow and be something that he could effectively use in training sled dogs.
So what happened in that case -- it was through the assistance of actually another attorney at the Disability Law Center. We helped him approach and sort of get Voc Rehab and Medical Assistance together where Medical Assistance funded the sort of basic wheelchair components that they would normally fund, and then Vocational Rehabilitation funded those parts and pieces of the wheelchair that he needed in order to be able to get through the snow in northern Minnesota in training of sled dogs. He ultimately ended up getting -- I call it sort of the Humvee of wheelchairs. It has a special sort of suspension system and things much like a car would have to be able to get through the snow and the rugged terrain where he trains sled dogs. So that's an example of those two systems coming together.
Another example -- it doesn't always have to be two state agencies that are working together. Another example is, I had a client that had private health insurance through his employer and was going to request a new power wheelchair. He worked as a person in an automobile repair shop who gave the estimates. When you bring your car in for damage and they're going to give you an estimate of what it costs to repair it, he was the person that gave those estimates. And he needed to be able to stand up to see the roofs of the cars to see if there was any damage to the roof or -- or the structure of the car.
Now, again, his need to be able to stand up was primarily related to his job. His need for a regular power wheelchair was primarily related to his medical need of needing to have a means of mobility. So what happened in that case, again, is that his private insurance paid for sort of the basic components of the regular power wheelchair, and it was Vocational Rehabilitation that paid for the standing feature that came along with the chair. So it was sort of the -- combining the use of those funds to get him one singular device that he was able -- that was able to both meet his medical needs and his work-related needs.
One other thing that I think people should be aware of is that this past legislative session the legislature passed a law that now requires health insurance companies to cover hearing aid devices for children who have a hearing -- congenital hearing loss. That's a change in the law. Many health -- private health plans did not previously cover hearing aids, and under this law they will now be required to. I think some things that people should know about that is that the law is in effect, but it does not affect your current health plan. This law will not apply to your health plan until it comes time to renew it. So, for example, if you normally renew your health policy in January, it will be the health plan in January that will be required to cover hearing aids for children who have congenital hearing loss.
EH: Spend a little time talking about medication waivers.
JG: Sure. Well, Medicaid waivers are programs that essentially -- the state applies to the federal government and asks for some of the more stringent rules, Medicaid rules, to be waived so that they can fund services to people under Medicaid that aren't normally funded by Medicaid. And in Minnesota we have many different types of waivers. The ones that people with disabilities use or would be on most often would be the MRRC waiver, or it's also known as the DD waiver for people who have developmental disabilities. Another waiver would be called the CADI waiver, the Community Alternatives for Disabled Individuals waiver. That would be a waiver most often for people who either have a mental illness or a physical type of disability but would require like a nursing home level of care, meaning I might need some personal care assistant, or PCA, hours, those kinds of services.
Another waiver is called the CAC waiver. And, finally, there's a TBI waiver, or a waiver for people who have traumatic brain injuries. Those would be the waivers that would most often be used by people with disabilities. And they're great, because they cover a much broader range of assistive technology than is normally covered under our state Medicaid or Medical Assistance program, so things like adaptations to a van or ramps on your home or a stair lift or elevator within your home. Also, it might cover recreational equipment, for example, for children who have developmental disabilities, things like adapted tricycles or adapted bicycles. So it funds a number of things that are not normally funded under Medicaid and can be a great resource for people to get those types of equipment.
The other thing is, there's both the DD waiver and the CADI and the CAC waiver, they all fund home modifications. So if you need to have your bathroom adapted for a wheelchair or counters in the kitchen adapted, either raised or lowered for some reason, it would fund those kind of modifications. And to get on a waiver, people need to apply separately. You don't automatically get on it if you're on Medicaid. You have to be on Medicaid or Medical Assistance and then apply separately through your county social service office to be on a waivered program, and they'll help you figure out which waivered program is the right one for you.
EH: Okay. So Minnesota Disability Law Center deals primarily in funding matters. Do you do any work in the area of discrimination?
JG: Probably the biggest area where that question comes up of discrimination, it primarily comes up probably in the workplace, people who need assistive technology in the workplace and their employer is either not providing it or not accommodating it. And the Disability Law Center does not handle employment discrimination issues, simply as a means that we had to set some priorities, and there are private attorneys who do handle employment discrimination issues, but we do have a wealth of information on our website or by calling the Disability Law Center you can request some fact sheets on employment-related discrimination or how to request accommodations such as assistive technology in your workplace. So we do provide some information to folks on that.
EH: Talking with Jennifer Giesen with the Minnesota Disability Law Center. My name is Earle Harrison. You're listening to STAR Point, a project of the Minnesota STAR Program.
Why don't you tell us how people can get in touch with you at the Disability Law Center.
JG: Well we do have a website that people can go on simply to access some information about their rights, and our website is www.mnlegalservices.org, and there's then a place in the upper left-hand corner you can click on the Minnesota Disability Law Center. Or if you're in the metro area, you can call 612-332-1441 and ask for the Disability Law Center intake line, or if you're in outstate Minnesota, you can call 1-800-292-4150 and again ask for the Disability Law Center intake line. Our intake specialist will then do a short interview with you to determine whether you have a legal issue the Disability Law Center can help you with and gather some information about that, and then that will go to the attorney, who will then review it.
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You've been listening to a broadcast of STAR Point, a production of the MN STAR Program, a System of Technology to Achieve Results. If you would like to provide feedback, be a guest on our show, or if you'd like to find out more about the STAR Program, please visit our Web site at www.admin.state.mn.us/assistivetechnology. My name is Earle Harrison. Thank you for listening.