Laws Related to Assistive Technology
(42 U.S.C. §1396 et seq.) The Medicaid program was established in 1965 pursuant to Title XIX of the Social Security Act. Medicaid is a federal-state entitlement program through which a variety of health care services are available to eligible beneficiaries. Medicaid can provide medically necessary assistive technology assessments, interventions, and needed equipment. Arizona's Medicaid program is known as the Arizona Health Care Cost Containment System (AHCCCS). Medicare: (42 U.S.C. §1395 et seq.)
Medicare is a federal health insurance program for persons over 65 and persons with disabilities. Medicare specifically excludes major categories of services, including most prescriptions, routine doctor visits, most foot care, dental care, eye examinations and eyeglasses, hearing aids and examinations, cosmetic surgery, and some vaccines. See 42 U.S.C. §§ 1395y(a)(7), (8), (10), (12) and (13) . Medicare coverage is limited to services that are "reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member." 42 U.S.C. § 1395y(a)(1)(A).
Part A (Hospital Insurance) Covers Care in hospitals as an inpatient, critical access hospitals (small facilities that give limited outpatient and inpatient services to people in rural areas), skilled nursing facilities, hospice care, and some home health care. Part B (Medical Insurance) Doctors, services, outpatient hospital care, and some other medical services that Part A does not cover, such as the services of physical and occupational therapists, and some home health care. Part B helps pay for these covered services and supplies when they are medically necessary which is determined to be "reasonable and necessary".
Social Security Disability Insurance (SSDI):
(42 U.S.C. §§ 402(d), (e), (f), 423 et seq.)
SSDI is an insurance program. To qualify, one must meet an earnings or "insured status" test, i.e., a wage earner must have put money into the Social Security trust fund. Both the wage earner and person with a disability who was dependent upon a wage earner may be eligible for SSDI benefits. Because it is an insurance program, current income will not affect the amount of one's SSDI check. Earnings, however, may affect whether the person is considered disabled.
Supplemental Security Insurance (SSI):
(42 U.S.C. §1381 et seq.)
SSI is a program for individuals with limited income and resources. SSI can be a person's only source of income or it can supplement some other source of income, such as SSDI. Because SSI is a needs-based program, the amount of one's income is always relevant in determining the amount of the monthly SSI check. Under section 1619(a), however, once a person has been approved for SSI, the amount of earnings will never affect the determination of whether that person continues to be disabled.
Ticket to Work and Work Incentives Improvement Act of 1999 (TWII):
President Clinton signed the Ticket to Work and Work Incentives Improvement Act of 1999 on December 17. This new law: increases beneficiary choice in obtaining rehabilitation and vocational services; removes barriers that require people with disabilities to choose between health care coverage and work; and assures that more Americans with disabilities have the opportunity to participate in the workforce and lessen their dependence on public benefits. The provisions of the law become effective at various times, generally beginning one year after enactment. They are described below. Establishment of the Ticket to Work and Self-Sufficiency Program The program will be phased in nationally over a three-year period beginning January 1, 2001, with the first Tickets issued early in 2001. Social Security and Supplemental Security Income (SSI) disability beneficiaries will receive a "Ticket" they may use to obtain vocational rehabilitation (VR), employment or other support services from an approved provider of their choice. The Ticket program is voluntary. Expanded Availability of Health Care Services The law includes several enhancements to Medicaid and Medicare that are effective October 1, 2000. States will have the option to provide Medicaid coverage to more people ages 16-64 with disabilities who work. States will have the option to permit working individuals with incomes above 250 percent of the federal poverty level to buy in to Medicaid. The law creates a new Medicaid buy-in demonstration project to provide medical assistance to workers with impairments who are not yet too disabled to work. The law also extends Medicare coverage for people with disabilities who return to work. It extends Part A premium-free coverage for 4 1/2 years beyond the current limit for Social Security disability beneficiaries who return to work. Expedited Reinstatement of Benefits Effective January 1, 2001, when a person's Social Security or Supplemental Security Income disability benefits have ended because of earnings from work, he or she would be able to request reinstatement of benefits. Beneficiaries must be unable to work because of their medical condition. They must file the request for reinstatement with Social Security within 60 months from the month of their termination. While Social Security is making a new determination, beneficiaries may receive up to six months of provisional benefits, including Medicare and Medicaid, as appropriate. If Social Security decides that the medical condition no longer prevents the individual from working, the provisional benefits paid would not be considered an overpayment. Continuing Disability Reviews Effective January 1, 2001, Social Security cannot initiate a continuing disability medical review while a Social Security or SSI disability beneficiary is using a ticket. Cash benefits may be subject to termination if earnings are substantial. Effective January 1, 2002, work activity by a Social Security disability beneficiary who has received Social Security disability benefits for at least 24 months could not be used as a basis for conducting a disability review. However, the individual would be subject to regularly scheduled medical reviews. Again, cash benefits may be subject to termination if earnings are substantial. The law also directs Social Security to establish a corps of work incentives specialists within Social Security. Protection and Advocacy The law authorizes Social Security to make payments to protection and advocacy systems established in each state to provide information, advice, advocacy and other services to disability beneficiaries. Earned Income Exclusion The first $65 ($85 if the individual has no income other than earnings) (as of 1999) of any monthly earned income plus one-half of remaining earnings are excluded for SSI benefit computation purposes. This general earned income exclusion is intended to help offset expenses incurred when working. It assures that SSI recipients who are working will be rewarded for their efforts by having greater total income than those who do not work. Impairment-Related Work Expense Exclusion The cost of certain impairment-related services and items that a disabled (but not blind) individual needs in order to work are excluded from earned income in determining monthly countable income. In calculating these expenses, amounts equal to the costs of certain attendant care services, medical devices, equipment, prostheses and similar items and services are deductible from earnings. The costs of routine drugs and routine medical services are not deductible unless these drugs and services are necessary to control the disabling condition. Work Expenses of the Blind Exclusion The work expense provision for individuals who are blind is more liberal than the impairment-related work expense provision for individuals who are disabled. Any earned income that a blind individual uses to meet expenses relating to work is not counted in determining SSI eligibility and benefit amounts. A deductible expense need not be directly related to the worker's blindness; it need only be an ordinary and necessary work expense of the worker. Some frequently excluded work expenses include transportation to and from work, meals consumed during work hours, job equipment, licenses, income or FICA taxes, and costs of job training. Student Earned Income Exclusion The student earned income exclusion is an additional exclusion for an individual who is neither married nor the head of a household, under age 22 and regularly attending school. It is intended to help defray the cost of educational training. Under current regulations, up to $400 of earned income per month but no more than $1,620 per year may be excluded. Plan for Achieving Self-Support A plan for achieving self-support (PASS) allows a disabled or blind individual to set aside income and resources to get a specific type of job or to start a business. This may involve setting aside funds for education or vocational training. Funds can even be set aside to purchase work-related equipment or pay for transportation related to the work goal. The income and resources that are set aside are excluded under the SSI income and resources tests. The individual must have a feasible work goal, a specific savings or spending plan, and must provide for a clearly identifiable accounting for the funds which are set aside. The PASS also must be approved by SSA. The individual must then follow the plan and negotiate revisions as needed. SSA monitors the plans once approved by reviewing them periodically to ensure the individual's progress towards attaining the work goal. Vocational Rehabilitation Referral/Reimbursement Since the beginning of the SSI program, SSA has made provision for blind or disabled individuals who are receiving SSI benefits to be referred to the State Vocational Rehabilitation (VR) agencies. If the State agency does not accept the referral, SSA can refer recipients to an alternate provider. SSA reimburses the VR agency for services provided in situations where the services result in the individual's working at the substantial gainful activity level for a continuous period of 9 months, and in certain other limited situations. Individuals receiving SSI benefits who improve medically and, therefore, are no longer considered disabled or blind can continue to receive SSI benefits if they are actively participating in an approved VR program and completion of the program would increase the likelihood that they will be permanently removed from the SSI rolls. SSI benefits and Medicaid generally continue until the rehabilitation services are completed or until the individual ceases to participate in the program. Individuals age 16 or older who receive SSI benefits due to blindness or disability and who refuse, without good cause, to accept available rehabilitation services based upon a referral from SSA shall be ineligible for SSI.
Section 255 of the Telecommunications Act of 1996:
(47 U.S.C. §255) Section 255 provides that a manufacturer of telecommunications equipment or customer premises equipment shall ensure that the equipment is designed, developed, and fabricated to be accessible to and usable by individuals with disabilities, if readily achievable. A provider of telecommunications services shall ensure that the service is accessible to and usable by individuals with disabilities, if readily achievable. Whenever either of these is not readily achievable, a manufacturer or provider shall ensure that the equipment or service is compatible with existing peripheral devices or specialized customer premises equipment commonly used by individuals with disabilities to achieve access, if readily achievable. People with disabilities will have access to a broad range of products and services - such as telephones, cell phones, pagers, call-waiting, and operator services.
Rehabilitation Act of 1973, as amended, Title I
The Rehabilitation Act of 1973 (Vocational Rehabilitation), as amended, authorizes the allocation of Federal funds on a formula basis for the administration and operation of a vocational rehabilitation (VR) program to assist individuals with disabilities in preparing for and engaging in gainful employment. The VR program provides a wide range of services, including assistive technology, and job training to people with disabilities who want to work.. To be eligible for VR services from a State VR agency, a person must have a physical or mental impairment that is a substantial impediment to employment; be able to benefit from VR services in terms of employment; and require VR services to prepare for, enter, engage in, or retain employment. The state of Arizona' VR program is known as Rehabilitation Services Administration a division of the Department of Economic Security.
Developmental Disabilities Program
Any Arizona resident who has a chronic disability which is attributable to mental retardation, cerebral palsy, epilepsy or autism that was manifested before the age of 18 may be eligible for services. The disability also must result in substantial functional limitations in three or more of the following areas of major life activity: • self-care • receptive and expressive language • learning • mobility • self-direction • capacity for independent living • economic self-sufficiency Children under the age of six years may be eligible for services if there is a strongly demonstrated potential that the child is, or will become, developmentally disabled.
Assistive Technology Act of 1998
Title III of the Assistive Technology Act provides matching grants to states who wish to operate an alternative loan financing program to fund assistive technology. For states that receive grants, persons with disabilities will have the option of applying for an affordable loan that they may not be able to get through traditional lending sources.
Civil Rights and Congressional Mandates
Americans with Disabilities Act of 1990
Title I-Employment Title I of the Americans with Disabilities Act of 1990, which took effect July 26, 1992, prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment. An individual with a disability is a person who: • Has a physical or mental impairment that substantially limits one or more major life activities; • Has a record of such an impairment; or • Is regarded as having such an impairment. A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to: • Making existing facilities used by employees readily accessible to and usable by persons with disabilities. • Job restructuring, modifying work schedules, reassignment to a vacant position; • Acquiring or modifying equipment or devices, adjusting modifying examinations, training materials, or policies, and providing qualified readers or interpreters. An employer is required to make an accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources and the nature and structure of its operation. An employer is not required to lower quality or production standards to make an accommodation, nor is an employer obligated to provide personal use items such as glasses or hearing aids. The U.S. Equal Employment Opportunity Commission issued regulations to enforce the provisions of Title I of the ADA on July 26, 1991. The provisions originally took effect on July 26, 1992, and covered employers with 25 or more employees. On July 26, 1994, the threshold dropped to include employers with 15 or more employees.
Title II-State and Local Government
Title II of the Americans with Disabilities Act, Pub. L. 101-336, which prohibits discrimination on the basis of disability by state and local governments. It protects qualified individuals with disabilities from discrimination on the basis of disability in the services, programs, or activities of all State and local governments. The law extends the prohibition of discrimination in federally assisted programs established by section 504 of the Rehabilitation Act of 1973 to all activities of State and local governments, including those that do not receive Federal financial assistance, and incorporates specific prohibitions of discrimination on the basis of disability from titles I, III, and V of the Americans with Disabilities Act. The regulations adopt the general prohibition of discrimination established under section 504, as well as the requirements for making programs accessible to individuals with disabilities and for providing equally effective communications. Department of Justice has enforcement authority over Title II.
Title III-Places of Public Accommodation
Title III of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181), prohibits discrimination on the basis of disability by places of public accommodation and requires places of public accommodation and commercial facilities to be designed, constructed, and altered in compliance with accessibility standards issued by the Department of Justice. The Department of Justice has enforcement authority over Title III.
Sections 501 through 505 of the Rehabilitation Act
Section 501 of this act prohibits discrimination on the basis of disability in Federal employment and requires Federal agencies to establish affirmative action plans for the hiring, placement, and advancement of people with disabilities in Federal employment.
Section 504 of the Rehabilitation Act
Section 504 prohibits discrimination based on disability in federally funded and federally conducted programs or activities in the United States, including employment programs.
Section 508 of the Rehabilitation Act
Section 508 requires Federal departments and agencies that develop, procure, maintain, or use electronic and information technology to ensure that Federal employees and members of the public with disabilities have access to and use of information and data, comparable to that of the employees and members of the public without disabilities-unless it is an undue burden to do so.
Section 508 standards relate to six technical areas: Software Applications and Operating Systems; Web-based Intranet and Internet Information and Applications; Telecommunications Products; Video and Multimedia Products; Self Contained, Closed Products; Desktop and Portable Computers.
The United States Department of Education requires that states which receive federal funding under the Assistive Technology Act of 1998 must comply with Section 508's technical standards.
Individuals with Disabilities Education Act of 1998 (IDEA)
PART B: Provides that children with disabilities receive a "Free and Appropriate Public Education" through the age of 21. Special education provides a range of services that include assistive technology, transportation, speech, occupational and physical therapy, as well as transition from school to work or school to independent living.
PART C: Enhance the infant's or toddler's development and the family's capacity to meet their child's developmental needs. Children from birth through age two who - have diagnosed mental or physical condition that has a high probability of resulting in a developmental delay, or are experiencing developmental delays, as defined by the State, in one or more developmental areas ( cognitive; physical, including vision and hearing; communication; social; emotional, adaptive), or at State discretion, are at risk of having substantial developmental delays if early intervention services are not provided. Arizona Early Intervention Program occurs from 0-36 months, it is known as AzEIP.
Television Decoder Circuitry Act of 1990 and Section 305 of the Telecommunications Act of 1996
(47 U.S.C. §305)
Another Federal law that increases accessibility for persons with disabilities is the Television Decoder Circuitry Act of 1990. Television Decoder Circuitry Act requires that since July of 1993, all television sets sold in the United States with screens 13 inches or larger (measured diagonally) to have built-in decoder circuitry for closed captioning.
In addition, under Section 305 of the Telecommunications Act of 1996, the FCC has adopted rules requiring closed captioning of most, though not all, television programming. The rules became effective January 1, 1998. The rules create transition periods during which the amount of closed-captioned programming will gradually increase. Under the rules, there are two categories of programming: new programming and pre-rule programming. Certain exemptions from the captioning requirements apply to both categories of programming.
Hearing Aid Compatibility Act of 1988 (HAC Act)
(47 USC §610)
The intent of the HAC Act is to ensure reasonable access to telephone service by persons with hearing disabilities. As of August 16, 1989, all telephones manufactured or imported for use in the U.S. have been required to be hearing aid compatible. Cordless telephones manufactured or imported for use in the U.S. have also been required to be hearing aid compatible since August 16, 1991. Secure telephones are exempt, as are telephones used with public mobile services or private radio services.
The Assistive Technology Lemon Law
Effective August 21, 1998, assistive technology manufacturers must give consumers with disabilities in the state of Arizona a one-year express warranty for all newly purchased assistive devices (except hearing aids). Consumers with disabilities now have the right to request repair, replacement, or refund of their assistive device when persistent problems impair the use, value, or safety of their device. Any assistive device, which is leased or sold in the state of Arizona, is entitled to the one-year warranty whether or not the manufacturer provides a written warranty to the consumer.
Assistive devices covered under the warranty include: wheelchairs (manual or electric); motorized scooters; any equipment or computer software which allows the sight-impaired person to communicate, such as voice activated computers, optical scanners, talking software, or a Braille printer; or any equipment which allows the disabled person to communicate, see, hear, speak, move about or control their surroundings. Demonstrators are also included under the warranty.
According to the law, if the manufacturer does not repair the consumer's device after two attempts for the same problem, or if the device is out of service for at least thirty days for repair, the consumer may request one of the following options:
1. The manufacturer shall accept return of the device and replace it with a comparable device or; 2. The manufacturer shall accept return of the device and refund the full purchase price plus any finance charge.
For example, if a consumer had an electric wheelchair which was repaired twice for the same problem during their one-year warranty, and continued to experience the same problem following the repairs, the consumer could return the device to the dealer/manufacturer and request either a refund or a new wheelchair.
Passage of the Assistive Technology Lemon Law demonstrates the strength of the disability community when it works cooperatively.------------------------------------------------------------------------
For more information on legislative issues relating to assistive technology, please contact:Edward L. Myers III
To learn more about Assistive Technology and AzTAP, please contact:Jill Oberstein, Project Director
To Learn More About Assistive Technology:
AzTAP has funded several Regional Resource Centers (RRCs) in Arizona. These RRCs provide direct assistive technology services to persons with disabilities, and are available to help consumers select the most appropriate devices, and advocate for themselves on order to acquire funding for the devices and services.ASSIST! to Independence
This document was developed by the Arizona Technology Access Program. Funding is provided by the U.S. Department of Education, National Institute on Disability and Rehabilitation Research (NIDRR) Grant #H224A40002. The contents of this publication do not necessarily reflect the views of NIDRR or the U.S. Department of Education, and do not imply endorsement by the U.S. Government.