Fighting for Access to Assistive Technology for Kids

Disability Rights Pennsylvania and its predecessors, Disabilities Law Project (“DLP”) and Disability Rights Network (“DRN”), have fought for the rights of children to have access to assistive technology.  Assistive technology is a device or service that helps a person with a disability in their daily activities and become or remain independent.  Assistive technology can be found in the home, workplace, school, and community.

B.B. v Miller, a class action lawsuit, was filed in 2018 in federal court against the Department of Human Services (“DHS”) on behalf of children who needed mobility medical equipment.  The complaint alleged that DHS violated the federal Medicaid statute by failing to pay for such medically necessary equipment.  The settlement required DHS to implement its newly approved state plan amendment which allowed Medical Assistance coverage of wheelchair lifts, stair glides, ceiling lifts, metal accessibility ramps and other items that are used by individuals with mobility disabilities to enter and exit their homes or to support activities of daily living, if the equipment is removable or reusable without damage to the item.  It also authorized Medical Assistance funding for installation of the equipment, including paying for required permits, labor, and parts.

In 2017, two cases were filed that preceded B.B. v. Miller:

J.A. v. Dallas was filed on behalf of a five-year-old Dauphin County boy with physical and intellectual disabilities who remained institutionalized because his Medical Assistance provider denied payment for a wheelchair lift outside his family’s home that he needs to enter and exit.  The complaint alleged that DHS violated the federal Medical Assistance statute by refusing to pay for the lift.  As part of the settlement, DHS approved Medicaid coverage of the wheelchair lift and its installation.

N.Z.S. v. Dallas was filed on behalf of a 16-year-old Philadelphia girl with muscular dystrophy to challenge the failure of her Medical Assistance provider to pay for a wheelchair lift or exterior ramp, without which the individual remained confined to the home and could not attend school.  Under the settlement, DHS required the Medical Assistance provider to cover installation not only for an exterior ramp, but also an interior stair glide to provide access to the second-floor bathroom.

In 2010, DRP filed a due process hearing on behalf of a 12-year-old boy who has a rare metabolic disorder resulting in frequent absences from school due to fevers and other health issues.  His parent had previously asked the school to install a webcam through which the student could observe and participate in the classroom when at home.  The school district agreed to allow the use of the webcam but in a different classroom and would not allow the webcam to be used from the student’s home.

The Hearing Officer determined that the webcam room at school was not useful to the student and that, as part of its obligation to provide education in the least restrictive environment, the school must use technology to give the student access to his regular education environment and peers from home.  The school district was required to permit the student to use a webcam at home to enable him to observe and participate in class when unable to attend school.

Daly v. Pennsylvania Department of Education and Pennsylvania Department of Public Welfare was a class action lawsuit filed in 1996 by DRP’s predecessor and the Education Law Center on behalf of Medicaid-eligible children and youth who were unable to obtain necessary augmentative communication devices (“ACDs”).  The complaint alleged that the Pennsylvania Department of Education (“PDE”) violated the Individuals with Disabilities Education Act (“IDEA”) by failing to provide ACDs to children and that the Pennsylvania Department of Public Welfare (“DPW”) violated the federal Medicaid statute by failing to authorize funding for the ACDs.

After the lawsuit was filed, PDE changed its process for making assistive technology available to students, giving each intermediate unit funds for assistive technology.  Thereafter, local educational entities determined through the Individualized Education Program (IEP) process whether students required assistive technology and, if so, what types.  Additionally, PDE agreed to provide assistive technology to the nearly 200 children whose applications had been pending at the state level when the lawsuit was filed.  Further, DPW reversed its position that Medicaid could not fund assistive technology devices.