A BAKER’S DOZEN OF "EXCUSES" FOR DENYING FUNDING

By

Lewis Golinker

This article discusses 13 common "excuses" offered by four funding programs to deny requests for assistive technology devices, such as power wheelchairs or other seating, positioning and mobility devices, augmentative communication devices, or computers and environmental controls. The four funding programs are Medicaid, special education, vocational rehabilitation, and private insurance. The "excuses" discussed are typical of the "no’s" that will be given when inquiries are made about, or applications submitted for, a variety of assistive devices.

Responses to each excuse are also presented that will enable applicants for theses devices to "get past the ‘no’" to secure funding. The responses explain why each "excuse" is wrong, and why it should not be accepted as a final decision on the funding request. Stated another way: even if applicants cannot secure initial decisions that support funding and thereby "avoid a ‘no,’" the arguments provided here will at least help identify some of the invalid reasons to deny funding, and suggest ways to overcome them.

These 13 "excuses" have been abstracted from a series of three papers - You Want Us to Fund That? [Seating, Positioning and Mobility Devices]; You Want Us to Fund That, Too? [Augmentative Communication Devices]; And Now You Want Controls]; - developed as part of UCPA’s Project Mentor. The papers will be available in late Winter 1992 and may be obtained by writing to UCPA, Suite 1112, 1522 K Street N.W., Washington, D.C. 20005.

Response:

State Medicaid programs are authorized to limit services to those that are "medically necessary". However, it is beyond question that augmentative communication devices will satisfy that criterion. The key is to explore the limitation in the person’s ability to communicate without an augmentative communication device. For example:

A person found appropriate for a communication device is likely to have many of the limitations described above. Each limitation describes a "medical" need: to communicate with a physician and/or principal caregiver in a manner sufficient to determine the person’s care/treatment needs, and to determine whether those needs have been met satisfactorily; to prevent and/or address and emergency medical need, and to prevent and/or address real and/or foreseeable injuries or impairments.

In addition, the devices that will be both necessary and sufficient to meet those medical needs must enable users to communicate as completely as their language and vocabulary skills will permit. There are no fixed number of "Medically related words" that can be identified. People need to express themselves as normally as possible, regardless of the subject of the communication of communicationer. The failure to have this potential may lead to depression and other related impairments.

Medicaid may attempt to deny a seating, positioning, or mobility device by claiming that the device will primarily address the user’s social or education needs, or that it simply will improve the user’s quality of life. These excuses are based not on the medical need for the device, but the uses to which the device will be put. They are frequently cited, but are not relevant to the question whether the device must be supplied by Medicaid.

For residents of intermediate care facilities, improved social functioning and improved quality of life are both requirements of the facility imposed by the Medicaid regulations. In addition, discharge potential is a required assessment criterion. Many less restrictive settings for residents of intermediate care facilities will require independent mobility. Thus, to state that an assistive technology device will address those concerns is a means to demonstrate that the facility is meeting its obligations, not a reason to deny a service.

Even more generally, regardless where the person lives, or whether s/he is a child or adult, accompanying any request for Medicaid services is a prescription by a physician, and a justification of the medical needs to be served by the device. The prescription and justification are the crucial documents in any Medicaid services request. That a device meets medical needs is all that is required. To do so, it must lessen or eliminate impairment related limitations on the prospective user’s ability to function normally, i.e., to perform the tasks as do persons with no disabilities.

It does not matter what other benefits also may be conveyed to the user. In the context of mobility, it does not matter to where the person may want to go, or why. The medical need for the mobility device is setting independent. It is obvious that a power wheelchair will enable the user to take advantage of a wide array of community resources, and that it is not provided solely to enable the user to have in house mobility: that is why power wheelchairs are supplied with batteries, and not extension cords.

In addition, it should come as no surprise that a medical service will improve the recipient’s quality of life. This observation by Medicaid is a statement of the obvious. It is inconceivable that a person will request, or that a physician will recommend a course of care or treatment that will decrease the person’s quality of life. Of course, care, treatment, and services are prescribed to increase the person’s quality of life.

The problem for Medicaid is that the "quality of life" excuse is too good: not only could it be used to deny assistive technology devices and services, but it could be used effectively to deny every Medicaid service requested by every recipient. Although such a result may save a state a lot of Medicaid expenses, it also would cause the state Medicaid program to cease to exist.

The educational purpose "excuse" is most often directed to persons less than 21 who are eligible for special education pursuant to the Individuals with Disabilities Education Act. However, state Medicaid programs cannot escape funding seating, positioning and mobility devices simply by claiming the devices are educational. They also cannot otherwise shift the costs of covered services, such as these devices, to schools. In fact, the law permits the reverse: schools can shift the cost of "related services" that are covered by Medicaid to Medicaid. Medicaid cannot deny funding because the seating, positioning or mobility device is to be used at school or because the request for funding comes from a school evaluation. Congress has prohibited Medicaid from refusing to fund "related services" listed on the individualized education programs ("IEP’s") when those services also are covered services in the state Medicaid program. Because EPSDT now requires all services available for federal reimbursement to be provided to persons less than age 21, school age children will have access to Medicaid funding for all necessary health related services, including assistive technology devices and services. Indeed, simply having the devices listed on a child’s individualized education program ("IEP") should be sufficient to secure Medicaid funding for an eligible child.

Response:

Medicaid may state that a person who is able to use scissors-gate, crutches or a manual wheelchair to achieve some mobility is ineligible for powered mobility, either to replace existing aids, or to supplement them. This "all or nothing" excuse finds no support in the Medicaid Act or regulations. There is nothing in the Medicaid Act, and no rule or regulation, that states a person must be chair- or bed-bound as a prerequisite to eligibility for these devices. Rather, persons with disabilities are entitled to seating, positioning and mobility devices that are condition appropriate.

While at home, the short distances and tight indoor spaces may make reliance on crutches or scissors-gate, or a manual wheelchair appropriate. But if a person is able to use scissors gate, crutches or a manual wheelchair to get around the house, there is no requirement that s/he use that means of ambulation for all mobility.

Persons without disabilities are not expected to walk wherever they must go, regardless of distance, conditions or geography; to abandon daily activities that may be more than a few blocks from their homes; or use all their stamina or risk onset of crippling secondary impairments to accomplish those tasks; and they are not expected to arrive at school, a workplace, or social engagement physically exhausted from the effort of traveling from home. On the contrary, persons without disabilities are able to accomplish all of these tasks in a comfortable, non-physically challenging manner, by utilizing an integrated mobility strategy that involves walking and other means of transportation as well. Medicaid must provide persons with disabilities the assistive devices that will provide those same opportunities. For a child or adult living at home, either EPSDT or home health care services must enable the person to live as independently as possible in their home setting.

Response:

An applicant’s age is not a valid factor in determining his or her eligibility for Medicaid funded augmentative communication devices or services. The Medicaid program is only able to consider a person’s degree of medical need in making eligibility determinations.

A person’s appropriateness as a candidate for augmentative communication in general will not be affected by his/her age. There is no minimum age below which a person cannot use an augmentative communication device, and there is no maximum age beyond which a person cannot use a device effectively. Rather, the particular device/system determined to be appropriate will be very much dependent on the person’s age, communication abilities and communication needs. Medicaid has funded devices for persons as young as 5, and as old as 65.

Children between age 3 and 21 are entitled to a "Free Appropriate Public Education" (FAPE) under the Individuals with Disabilities Education Act ("IDEA"). A FAPE consists of 3 interrelated parts: special education, related services, and least restrictive environment.

In August 1990, the US Department of Education, Office of Special Education Programs stated that assistive technology will fall within the definitions of each of these FAPE components. The OSEP Policy Letter also states that school districts may not refuse to consider a child’s need for any form of assistive technology, or to provide the assistive technology devices and services that are determined to be

necessary. In the Individuals with Disabilities Act Amendments of 1990, Congress supplied definitions to the terms "assistive technology devices" and "assistive technology services." Seating, positioning and mobility evaluations, devices and follow along services clearly fall within the scope of these definitions. Read together, the OSEP Policy Letter and 1990 IDEA Amendments make clear that seating, positioning and mobility evaluations, devices, and follow along services fall within the scope of the IDEA, and that they must be provided by school districts when determined to be necessary.

Most often, these services will be provided as part of physical or occupational therapy services, which are listed as related services under the Act. The key will be to show that the child requires these services in order to "benefit from his or her special education." For children with extremely severe impairments, the special education they receive may be primarily devoted to proper seating or positioning; for others, appropriate services may be necessary to enable the child to sit properly, and thereby be able to be attentive throughout the school day. In either case, seating and positioning assistance is required.

The "Free" in FAPE is extremely significant with regard to children with disabilities who may require assistive technology. As stated in the IDEA and regulations, all aspects of the special education and related services provided to a child must be "at no cost to the parents." This term is interpreted broadly.

The "at no cost" rule prohibits school districts from refusing to include equipment, services or programs on the IEP based on its expense. And, once stated on the IEP, the school district must provide the equipment, services, and program needed to provide a FAPE. The only time "cost" can be taken into consideration is where two alternatives exist that would each enable the child to receive an "appropriate" education. In that circumstances, the district may choose the less expensive option.

If school districts must provide a FAPE in a cost-blind manner, immediate attention will be directed to opportunities for cost-shifting to other sources. Among the most obvious sources are the parents’ themselves, and private health insurance policies.

Schools Cannot Require Parents To Pay For Programs, Services OrEquipment Listed On A Child’s IEP

School districts cannot evade the "at no cost to parents" rule by telling parents they must pay for the needed equipment, services, or programs themselves. Schools cannot state that because a seating, positioning or mobility device can and will be used at times when school is not in session, such as before and after the school day, and on weekends and holidays, the school is therefore not obligated to provide it. This "excuse" makes no real sense: everything children are taught and learn in school is intended to be used and further refined beyond the school setting. That is the whole purpose of school preparation for life.

Children receive physical education instruction, as well as seating and posture instruction, in order to promote their physical development for life as a whole. They do not receive these services just to develop the physical stamina to make it through the school day. When viewed in terms of the goals of education as a whole, the ‘out of school’ benefit excuse ceases to make any sense. It could just as easily be applied to justify not providing mathematics or science instruction. Obviously this is not a valid criterion to determine the school’s duty to provide services.

Schools also cannot refuse to provide a needed seating, positioning or mobility device on the basis that the child can bring the device from home. This "excuse" also cannot pass a common sense test: children are not asked whether they have copies of reading materials at home, and if so, books are not provided at school. Children are not asked whether they have basketballs or footballs at home, and if so, gym equipment is not provided. Children are not asked whether they have bicycles, or whether their parents have cars, and if so, gym equipment is not provided. Children are not asked whether they have bicycles, or whether their parents have cars, and if so, transportation is not provided. Why then should it matter whether a child has an assistive device at home? In fact, it does not. While there is no barrier to a child bringing assistive technology from home to school, schools have no authority to mandate it.

Finally, schools cannot claim that a particular service identified as an IDEA related service" is needed, but for "Medical" as opposed to "educational," reasons. Congress identified a wide range of "health" services as educationally "related;" school districts are not free to ignore or evade that designation. Once a service is identified as being "needed" for the child to benefit from his/her special education program, then the service must be provided by the schools. By recognizing the connection between the service and the child’s special education, the educational/medical distinction ceases to have any significance. The only alternative is for the school to argue that the service is not needed at all.

Schools Cannot Require Parent’s Health Insurance To Pay For A Child’s FAPE

Since 1980, the U.S. Department of Education has stated that school districts are absolutely forbidden from requiring the parents of a child with handicaps to use private insurance proceeds to pay for required services where the parents would incur a financial loss. In addition, even if it could be established that no such loss would occur, coercion still is forbidden: the use of insurance proceeds must be voluntary.

The U.S. Department of Education reported on research findings that 73% of all health insurance policies had lifetime dollar caps; 71 % had annual or lifetime limits on coverage for specific services; that claims use affected future insurability; and that claims use raised future insurance costs. On the basis of this research, OCR restated that validity the 1980 interpretation.

The possibility that a "cost" will be associated with use of an insurance policy can be both explicit, and implicit. For example, a policy may cover durable medical equipment, as well as other services that may be IDEA-related services. However, the policy also may include caps on coverage, deductibles, co-payment responsibilities, or other express or subtle limitations that would constitute a "cost" or "financial loss" if the policy is used for services in school. Care must be taken to ensure that a policy does not have such a limitation before a parent considers using his or her insurance to pay for a seating, positioning or mobility device or physical or occupational therapy services that would otherwise be the responsibility of a local school district.

This provision doe not preclude school districts from asking parents whether they have any insurance coverage, but school districts have no authority to require parents to disclose those policies, or to permit school authorities to review them.

There are a number of "truisms" relating to educational expenses for children with disabilities. One is that the IDEA applies equally to every school district in each state. Its requirements are the same for big city school districts, wealthy suburban districts, and small, poor, rural school districts. Another is that the IDEA does not provide much federal financial assistance to any state or school district: the costs of meeting the IDEA’s mandates for special education and related services remain largely a state and local responsibility. A third truism is that the cost of providing an appropriate education to a child with disabilities cannot be a consideration in determining whether the programs and services are to be provided.

These truisms will have unequal application because some districts are more wealthy, and "able" to provide the variety of services children with disabilities may need. Yet a district’s "ability/willingness" is not lawfully a factor in determining its duty to provide an appropriate education. No child, anywhere in any state, need accept anything less than what the IDEA mandates: i.e., an appropriate education, including, where necessary, the provision of seating, positioning and mobility. Schools cannot escape consideration of seating, positioning or mobility for children because of cost. Schools cannot escape providing devices and services related to these needs because of cost.

The only opportunity available to schools to consider cost is in regard to choosing between two equally appropriate alternative courses—the schools are then free to choose the one that is least expensive. But that option will have limited, if any, opportunity for application in regard to seating, positioning or mobility. For a child who is an appropriate candidate for assistive devices or services, there really will be no alternative service that will provide equal benefits. Also, few of the many devices/systems available have features that permit direction comparisons, and hence cost comparisons.

Response:

All children with disabilities are entitled to a Free Appropriate Public Education. Schools that will oppose specific educational programs or services on the basis of "appropriateness" almost always are attempting to save money, protect the school’s control over the design of programs, or both. "What we provide is appropriate; what parents seek is ‘best’" is a common response to a request for programs or services other than what the school district offers. When school districts refuse to provide assistive technology, all of the these "excuses" will be at work.

A program is "appropriate" when it confers "educational benefit." Unfortunately, there is no substantive requirement in the IDEA concerning the "degree" of benefit that must be provided. While there is no precise standard as to how much "benefit" must be conferred, it is clear that educational programs must do more than prevent regression, or provide ‘de minimis’ (ie., something greater than zero) benefit. Rather, the "benefit" must be "meaningful."

For some children, the degree of benefit will be the elimination of the educational limitations imposed by the child’s disability. This will be most clear for children who were placed in segregated classes because they had physical disabilities. Although this practice never was justified, except by the prejudices, fears and ignorance of educators, it was done, and many such classes still remain, even 15 years after the EHA/IDEA was enacted. For such children an assistive device can result in placement in a regular education classroom, and instruction in the mainstream curriculum. For other children, the device may permit the development of new goals related to each of the areas of benefit, based on new expectations of the child’s potential.

But are these improvements "appropriate" or "best"? The answer lies in the description of the child’s program before the computer aided instruction is considered. Questions must be asked about the child’s goals in each of the areas the assistive device can address:

For almost all students who are appropriate candidates for computer aided instruction, the answer to these questions is almost certainly to be "no." If so, the next question is whether the school has set instructional and related services goals that will enable the child to achieve those performance levels prior to age 21 when the child’s educational entitlement ends? That, too, is likely to be answered in the negative.

What, then, are the levels to which the school is expecting the child to reach? It may be that the school district has set very limited goals for the child, if it has considered his/her long term goals at all. Schools that maintain segregated classes for children with physical disabilities are likely to have stated the lowest - and least realistic - expectations for these children. Yet here is where the benefits of computers and other assistive devices can be seen most clearly. These devices may provide significant opportunities for the child that never before were considered attainable: participation in the regular education curriculum, employability, independent living. Changes in educational programs that will lead to any of these goals are not "best" programs; rather, the denial of instruction and/or services that will lead to these goals is not appropriate.

A critical review of the child’s individualized education program ("IEP") is required. The IEP should describe the special education and/or related services designed to increase the child’s integration into regular education; cognitive development; physical development; social maturity; and academic skills. But not every child who is an appropriate candidate for assistive devices will have such goals on his/her IEP. Many children with disabilities may not be receiving any instruction designed to increase these Skills.

Parents should be particularly alert to IEPs that omit any functional skills development and/or academic skills development goals for children with disabilities (for example: The elimination of expressive communication goals for a child who is non-speaking). When any of these fundamental educational goals is omitted, the schools are stating their assumption that the child has no potential to benefit from instruction in that subject. Such conclusions stated for any child, particularly in light of the vast array of educational software programs that are available, should be suspect.

For these children, computer aided instruction may enable them to develop and benefit from many different academic and social opportunities. Increased learning, increased communication skills, and less restrictive placements will all increase the child’s general level of benefit from the educational experience. By being able to be more attentive and receptive to instruction, these children may be able to benefit from instructional opportunities, develop friendships, and participate in extra-curricular clubs and activities that previously were thought unattainable.

By contrast, where no such goals are stated on a child’s IEP, the school district will be required to demonstrate that the child could not develop such skills even with computer aided instruction, and augmentative communication device, and/or appropriate follow-along services. Like the proof of any "negative assertion," this is likely to be an impossible task.

For school districts that are supplying "some" computer instruction, or other services that address social and academic skills development, the degree of these services must be measured in regard to the abilities of children without disabilities who are the same age. The district will have to prove that either the current level of services enables the child to develop these skills to the same degree as his or her age peers; or that even with computer aided instruction, the child would not develop these skills at a rate or to a degree significantly greater than s/he will without the device. This standard also is unlikely to be met. In general, computer technology may open up many new opportunities for children with disabilities. Schools cannot use the criterion of an "appropriate" education to retard their development.

Some school districts may provide a communication device, and then attempt to limit the child’s access to it by stating the device cannot be removed from school property. The "excuse" will be that the devices are expensive and, to some degree, fragile. Schools will seek to prevent loss and/or damage by restricting their circulation. While these "excuses" may have some superficial appeal, they also limit the development of the child who uses the device. Loss/damage control, which is synonymous with "cost", is no more permissible a basis to refuse to allow a communication device to go home than it is to deny providing the device at all. If the device can be justified for school use, there can be no reasonable basis to restrict it to that setting. To look at "ownership" is to ask the wrong question. Indeed, ownership is not a relevant factor. School books are the property of the school, yet children are expected, even required, to take them home to perform homework and continue their studies. School supplies are the property of the school, yet which parents have not covered their refrigerator with their child’s artwork? School owned musical instruments are another example of school property that is permitted to travel home with children.

The correct question is to examine how the devices are used, and in this regard communication devices fall into a unique category: they can be most closely compared to a part of the child’s body, substituting for his/her non-working vocal apparatus and fine motor control. Communication devices have no parallel to school books, desks, chairs, or any other items constituting school property. Viewed in this way, it is obvious that a child will not leave "part of him/herself" in school at the end of the day or week or during vacations.

The "school only" problem can be avoided by careful crafting of the child’s IEP. Here the goal must be to equate the device with other "things" children are permitted/expected to take home with them. For example, an IEP goal should state that the child is to develop greater functional skill in the use of the device. If this is present on the IEP, learning the device becomes a substantive part of the child’s program. As such, the child would be able to take home a textbook or other school resource to practice his/her lessons or further his/her learning. Equally true, the child should be assigned "homework" related to use of the device, just as children receive homework in their academic subjects.

A second IEP goal should state that the child shall develop increased substantive skill in expressive communication, social skill development, and demonstration of academic skills. To achieve these goals, the child will have to take the device home to practice his/her lessons, just as other children take home their texts.

A third IEP goal must focus on communication partners, such as parents, siblings and friends. Use of augmentative communication devices requires special skills on the part of these persons. They must be patient to enable the device user to complete a thought, and must ask questions and communicate in ways that encourage the child to use the device more flexibly and efficiently than just to say " yes/no". Just as the IEP must state that all persons in the child’s school day must learn these skill, so too should it state that these skill will be learned by persons in the child’s home and community. School staff should provide services to the child’s parents, both for their own knowledge, and in a form capable of being passes on to others who regularly participate in their son or daughter’s activities.

With IEP goals such as these, school will not be able to justify restricting communication devices to school grounds. Schools expect their lessons to have carryover beyond school grounds. Lessons learned regarding vocabulary, grammar, syntax, etc., are expected to be practiced after school in weekends, and vacation. Social skills, the development of which also are an important component of education, also are expected to be practiced and refined away from school grounds. Indeed, the assimilation of social skills instruction is principally an extra-curricular matter. For the child who uses a communication device, however, demonstration, practice and further refinement of these skills is possible only if continued access to he device is available. The "can’t take it home" excuse should be undercut by careful preparation of the IEP, and rejected out of hand if ever it is raised.

A common "excuse" by vocational rehabilitation agencies has been to deny the existence of vocational potential to persons whose employment opportunities may require a lot of work, time and/or cost. In large measure, persons with severe disabilities have been the ones excluded from receiving vocational rehabilitation services on this basis.

Although such decision making never was proper, the 1986 Amendments to the Rehabilitation Act clearly proscribe such conduct. The Act prohibits vocational rehabilitation agencies from issuing determinations that a person lacks vocational potential without first considering whether the person could benefit from " rehabilitation engineering services." Rehabilitation engineering includes the provision of equipment or devices to the individual, and the adaptation of the physical environment (home and/or workplace) to enable persons to work or to perform everyday activities.

Thus, an initial question to ask is whether any consideration of rehabilitation engineering was given prior to the issuance of the adverse finding. It is likely the answer will be "no, " and for this reason the adverse finding cannot stand. The person seeking vocational rehabilitation potential determination.

Even if the agency claims that rehabilitation engineering was considered, it is unlikely the agency could sustain an adverse determination. There are no objective tests to measure the appropriateness of rehabilitation engineering services, and no generally accepted criteria to determine the skills level of the evaluator. Rather, to date, the scope of the service has been limited only by the skills and imagination of the person with the disabilities, the rehabilitation counselor, the evaluator, and potential employers.

Determining the vocational potential of a person who requires an assistive device as a rehabilitation counselor, but it will be the rare person indeed, a person with exceptional disabilities, who will not be able to satisfactorily perform competitive work, sheltered work, supported work, or any of the other possible rehabilitation "outcomes" even with the provision of rehabilitation engineering.

This statement is correct: in general, vocational rehabilitation programs are payor of last resort. But this criterion is not applicable to "rehabilitation engineering." This service, added to the Rehabilitation Act in 1986 and which includes seating, positioning and mobility devices, must be provided without regard to the availability of "similar benefits," i.e., other potential sources of funding for the devices or services. A person determined to be an appropriate candidate for a seating, positioning or mobility device can seek full vocational rehabilitation payment for he devices and services without regard to the person’s eligibility for any other benefits program.

Insurance policies, like all other funding sources, attempt to position themselves as the payor of last resort. Both the federal Medicaid and vocational rehabilitation laws have express provisions about their "payor of last resort" status. Many insurance policies have similar provisions. These may be written as coverage limitations stating that:

The first limitation is designed to force people to use government benefits before seeking payment from their insurance policy. The second is specifically designed to force children to use the special education program as the primary payor for required health services. The list of excluded services will parallel the list of "related services" in the Individuals With Disabilities Education Act (IDEA).

The response to these "excuses" is that persons eligible for Medicaid are required by federal law to use their insurance benefits first before seeking Medicaid coverage. No insurance policy can exempt itself from that federal law. In fact, people eligible for Medicaid may be able to secure a seating, positioning or mobility device from Medicaid, and "assign" Medicaid the person’s rights to reimbursement from their insurer. Medicaid will be able to provide reimbursement to the vendor of the device and then the state can be reimbursed by the insurance company.

Persons eligible for vocational rehabilitation services are directed to utilize "similar benefits" for may VR services. In addition, they may be required to make a financial contribution to the total cost of those services. If there is a financial contribution requirement by the state VR program, the service obviously is not available for free, and the insurance policy limitation will not apply. Indeed, it may be in the insurer’s financial interest to pay the person’s "co-payment" responsibility under the VR program, rather than pay the full cost-of the device under the policy.

If there is not "co-payment" requirement, the VR program will be required to pay for the full cost of the device. As noted above, seating, positioning and mobility devices, and other services that fall within the definition of "rehabilitation engineering" are exempt from similar benefits considerations. For any of these services, the VR program will be required to provide the service without cost, and a request to VR instead of the insurer may be appropriate.

Children with disabilities are similarly entitled to a Free Appropriate Public Education. Schools are expressly forbidden from refusing to provide needed services, such as seating, positioning and mobility devices and services as a means of forcing the child to utilize insurance benefits, or from making demands on insurance companies to provide payment for "related services" that may also be covered services under an insurance policy.

But who pays when the school and/or the state VR program, which may required to provide free services, refuse to provide those services, stating that the seating, positioning or mobility device fails to meet their program criteria? Can the insurer then refuse to provide coverage by still asserting that the device is available for free from another source?

There is no clear answer to these questions. The most reasonable response is that the "assignment model" used by Medicaid should be carried over to the insurance company: if the insurer asserts that the device is available for free even though the special education or VR program has rejected the request for funding, let the insurance company proceed with an appeal of the rejection from that other source. However, before any assignment is made, the person must insist that the appeal be taken after the insurer has provided funding for the device itself as a covered service under the policy.

Insurance companies may respond to a request for or appeal in regard to augmentative communication devices or services, or other types of assistive technology, by stating that the requested device or service is not covered by the policy, but an exception will be made, this time, to grant the request. This response, while positive, should be recognized for the excuse that it is. Insurance companies are not "nice guys" who will grant exceptions because the request is written politely, or because the applicant is a nice person, or truly needy. Rather, insurance companies will grant benefits because they are required to do so. Period.

As noted above, most policies will not explicitly reference communication devices or service. That will require and interpretation of the policy. Stated in other words: there will be an ambiguity in the policy in regard to the request for augmentative communication.

Insurance companies may want you to "feel good" about receiving approval for requested devices or services by calling the approval an "exception." What they are not stating, however, is the absolute certainty that every ambiguity in an insurance policy will be resolved against the insurance company. If the question is coverage, every ambiguity will be resolved in favor of coverage. The courts recognize that insurance is a "take it or leave it" proposition, and that the contracts do not result from typical bargaining. For this reason, the law has evolved in every state to interpret insurance policies against the company: it had total discretion in the policy’s wording. If the company, even with a free hand, could not be clear as to what was covered, or subject to limits, then the policy will be read in favor of the beneficiary.

The importance of "exceptions" is to recognize that yesterday’s exception is tomorrow’s rule. Speech pathologists or other services providers must keep records of policies that cover communication devices and services, and especially those that do so by "exception." Parents also must keep close watch of these "exceptions." Many times, other people will make requests to the same insurer for the same services. Or, requests will be made by the same beneficiary for services that may be similar to those previously approved. In either case, a long memory will force the insurance company to explain why the "exception" will not apply to the later requests, a step they may be unable, or unwilling, to take.