WHT Law

Assistive Technology: What is the Bottom Line?

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Assistive Technology:
What is the Bottom Line?

Issue:

What assistive technology should or must a local school district make available to students and parents – and at what cost?

Summary of Information:

This memorandum first presents relevant definitions of assistive technology based on statutory and regulatory citations.  It then examines decisional case law examinations of what assistive technologies have been requested by parents or guardians of disabled students, whether the school districts provided these technologies, and why or why not.

Definitions of assistive technology and assistive technology service (From CFR Part 300):

Assistive technology device means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability (300.5).  Assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, use of an assistive technology device.  The term includes:

  • The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child’s customary environment;
  • Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by a child with a disability;
  • Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
  • Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;
  • Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or other individuals who proved services to , employ, or are otherwise substantially involved in the major life functions of that child. 20 USC Sections 1401(1) and (2);  (300.6).

State Regulations, 23 IAC 226:

Assistive technology device:  Any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability. (226.75).  Assistive technology service:  Any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device as defined in Section 226.75 of this Part.  Examples include:

  • The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child’s customary environment;
  • Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by a child with a disability;
  • Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
  • Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;
  • Training or technical assistance for a child with a disability or, if appropriate, that child’s family; and
  • Training or technical assistance for individuals providing education or rehabilitation services, employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of a student with a disability. (226.310(a)).

Note:  at no cost means that all specially-designed instruction is provided without charge, but does not preclude incidental fees that are normally charged to non-disabled students or their parents as a part of the regular education program (300.26(b)(1)).

IDEA, 20 USC Section 1412 (a)(12)(B)(i):

Obligation of public agency.

In general:  If any public agency other than an educational agency is otherwise obligated under Federal or State law, or assigned responsibility under State Policy or pursuant to subparagraph (A), to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services described in Sections 1401 (1) relating to assistive technology devices, 1401(2) related to assistive technology services)…that are necessary for ensuring a free appropriate public education to children with disabilities within the State, such public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement. (Emphasis Added).

Integrated overlay of 34 CFR Section 300.308.  Assistive Technology:

  • Each public agency shall ensure that assistive technology devices or assistive technology services, or both, are made available to a child with a disability if required as part of the child’s…(a)(1) Special education under Sec. 300.246; (b)(2) Related services under Sec. 300.224; or (c)(3) Supplementary aids and services under Secs. 300.268 and 300.550(b)(2).
  • On a case-by-case basis, the use of school-purchased assistive technology devices in a child’s home or in other settings is required if the child’s IEP team determines that the child needs access to those devices in order to receive FAPE.  (Emphasis Added).

From the 2000 Illinois Register, Volume 24, Issue 38, September 15, 2000:

Section 226.220, Factors in Development of the IEP:

The [IEP] team shall consider whether the child requires assistive technology devices and services.

From Appendix A to IDEA Federal Regulations, Re: In-house Use:

Question:  Under what circumstances is a public agency required to permit a child with a disability to use a school-purchased assistive technology device in the child’s home or in another setting?

Response:  Each child’s IEP team must consider the child’s need for assistive technology (AT) in the development of the child’s IEP (Section 300.346(a)(2)(v)); and the nature and extent of the AT devises and services to be provided to the child must be reflected in the child’s IEP (Section 300.346(c)).

A public agency must permit a child to use school-purchased assistive technology devices at home or in other settings, if the IEP team determines that the child needs access to those devices in non-school settings in order to receive FAPE (to complete homework, for example).  Any assistive technology devices that are necessary to ensure FAPE must be provided at no cost to the parents, and the parents cannot be charged for normal use, wear and tear.  However, while ownership of the devices in these circumstances would remain with the public agency, state law, rather than Part B, generally would govern whether parents are liable for loss, theft, or damage due to negligence or misuse of publicly owned equipment used at home or in other settings in accordance with a child’s IEP.

Section 226.310, Related Services:

…The most commonly provided related services include assistive technology…

Assistive Technology:  Any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device as defined in Section 226.75 of this Part…

Section 226.750, Additional Services:

The additional services and activities referred to in this Section shall be provided to students whose IEPs require them.  In each such case, the relevant requirements of this Section shall apply.

Assistive Technology 1) The responsible school district shall furnish such assistive technology devices as a child’s IEP may prescribe, including providing these in the child’s home if required in order for the child to receive FAPE.  2) Each school district shall ensure that hearing aids and assistive technology or adaptive devices are functioning properly.

Section 226.840, Qualifications of Evaluators:

The following list identifies the credentials required to administer certain types of evaluations.  Where no requirements are established, an evaluation may be performed by an individual who is qualified to administer it according to the technical specifications of the publisher.

Types and Required Qualifications:

  • Assistive Technology – To the extent that a test is used in performing this assessment, qualification for administering the test is according to the instructions provided by the test’s publisher.

Decisional Case Law:

Augmentative Communication:  Tuscaloosa City Board of Education, (Alabama) 34 IDELR 83 (August 2, 2000)

A 15 year old student suffering from severe expressive language impairment used a Superhawk agumentative communication device both at school and at home.  The school district required each classroom teacher to incorporate the use of the device into the curriculum and to provide the student with an aide trained in its use.  The parent sought a due process hearing in an effort to require the school to replace the Superhawk with an alternative augmentative  communication device known as the Dynavox.

The decision, in finding for the school district, found that the child had benefited and would continue to benefit from the device provided by the district.  While the device requested by the parent is more advanced, there was insufficient evidence that the child had reached the potential of the current technology provided  by the district.  Thus, the hearing officer found that “In providing this Child with a Superhawk augmentative communication device along with specialized instruction relating to the use of that device and related services incorporating the device into the educational setting, the Tuscaloosa City Board of Education has provided and is providing this Child with a free and appropriate public education as required by federal and state law. “

Augmentative Communication Device: Independent School District No. 623 (Minnesota), 31 IDELR 17 (July 7, 1999).

An 8 year old student was diagnosed with autism and was considered to have a severe language disorder.  Parents sought a private evaluation with regard to use of an augmentative communication device.  The  review officer found that the school district’s failure to implement an evaluation of particular forms of assistive technology devices in a timely manner was a FAPE  violation.

The burden of proof is on the School District to show by a preponderance of the evidence that its actions and the IEP were appropriate and provided the student with a free and appropriate education.

FAPE is defined as “special education and related services that:

1) Have been provided at public expense, under public supervision and direction, and without charge;

2) meet the standards of the state educational agency;

3) include an appropriate pre school, elementary or secondary school education in the state involved; and 4) are provided in accordance with the individualized education program required under section 1414(d).  20 U.S.C. Section 1401(8).

In the appeal from the opinion of the hearing officer, the court decision emphasized that 20 U.S.C. Section 1414 (d)(3)(B)(v) requires an IEP team, in developing each child’s IEP, to consider whether the child requires assistive technology devices and services.  IEP team requirements and definitions of assistive technology are from IDEA 97 which went into effect July 1, 1997.

Prior regulations and policy interpretations contained similar definitions of assistive technology (34 C.F.R. 300.5 – 300.6) and treated it as a related service. “OSEP indicated as early as 1993 that “participants at the meeting held to develop a child’s IEP must determine whether, in light of a particular child’s educational need, the public agency must make an assistive technology device and/or service available in order for the child to receive FAPE.”    Letter to Seiler, 20 IDELR 1216 (OSEP 1993).  Thus, the current law codifies what was earlier required by regulation and policy.

The court continued:

“Based on both prior regulations and policy interpretations and upon current law, assistive technology is thus not a methodology to be determined by a school district’s professionals.  Similarly, failure to assess and provide such technology may be a violation of both procedural and substantive FAPE.  Finally, since it is a duty of the IEP team to determine a pupil’s need for such technology, there can be no requirement that a parental request is necessary to trigger the provisions of the law.”

Furthermore, “The need for assistive technology is a determination to be made separate from the need for other related services.  Thus the fact that [the student] made progress in speech and language goals is not dispositive of the issue whether or not [he] needed assistive technology, or should have been evaluated for such technology and services.” (Emphasis Added).

The reviewing body found that “there is credible evidence in the record that a dynamic augmentative communication device will assist Student in communicating his needs, at least in certain environments.”   In addition, it did not matter that parents did not specifically notify the school district of their intention to obtain an evaluation for augmentative communication devices.  “Such notice is not required when, as here, District erred by not conducting such an evaluation, or agreeing to such an evaluation after a specific request, in a timely fashion.”

It was found that “at such time as it becomes apparent that Student can benefit educationally (and behaviorally) from the use of DynaMyte, District shall pay at least a portion of its cost and maintenance to Parents’ insurer.  Such proportionate share shall be determined by the relative use of DynaMyte for educational relative to other uses.”  It was also ordered that the IEP team meet to determine any additional services that are necessary to successfully implement Student’s use of the assistive technology.

Purchase of scientific graphing calculator:  In Re Board of Education of the Mararoneck Union Free School District,(New York) 34 IDELR 107 (June 21, 2000)

Parents appealed from a hearing officer’s decision finding their son had received an appropriate educational program, including the use of an adequate assistive technology device, a scientific graphing calculator.  The school had provided a particular model of calculator. The parents felt that by not providing a” more advanced”  model the school was discriminating against their son.  The reviewing body found for the school district but issued a cautionary note for the district.  The decision stated that it is the school’s  “responsibility to determine whether a child requires the use of an assistive technology device and the purpose for which the device is to be used (Application of a Child with a Disability, Appeal 94-24).

There appears to have been a general understanding that petitioner’s case study evaluation (CSE) failed to specify the purpose for which the boy could use a calculator in his math class.  In view of the many ongoing changes in technology, it many not be necessary for a CSE to specify the model number of each assistive technology device it recommends for a child.  However, a specific description of the purpose for which the device is to be used is necessary to provide sufficient guidance to the individuals who must implement a child’s IEP.

Touch Talker Communication Board: Highland Local School District, (Ohio) 26 IDELR 224 (June 3, 1997).

The parents of a 14-year old student with cerebral palsy, mental retardation, and microcephaly challenged the school district’s alleged failure to provide a replacement communication board in a timely fashion after the student’s Touch Talker was broken.  The decision was for the District.  It was found that the District had ordered a Dyna Vox Touch Talker communication device in a timely fashion but that the delivery of the device was delayed due to events outside of the control of the District.  The decision also noted that the District provided adequate training to staff on the use of  the Dyna Vox.

Computer software: Board of Education of Harford County v. Bauer, (Maryland) 33 IDELR 267 (September 12, 2000)

Parents had requested that the school district pay for assistive technology in the form of computer software designed to address his speech and language difficulties.  They had also sought reimbursement for the student’s private school placement.  At two due process hearings, the administrative law judges held that the school district must reimburse the parents for their unilateral private placement of their child and that the school district was required to provide to the student appropriate computer software and training.  The district appealed to the federal court which affirmed both due process hearing decisions, against the district.

As to the assistive technology issue, the school district claimed that the parents were only entitled to retroactive reimbursement.  The district court rejected this, citing to the U.S. Supreme Court decision in School Community of Burlington v. Department of Education in which courts were allowed to provide parents with any remedy they deemed appropriate under the IDEA.  Since assistive technology was required under the most recent IEP in this case, it was within the Administrative Law Judge’s discretion to order the school district to provide the student with the computer software, even though the student was privately placed.

Computer and computer software: Williford School  District,(Arkansas) 26 IDELR 1037 (May 19, 1997)

The school district requested a due process hearing to determine whether the student’s IEP should contain an assistive technology plan regarding the student’s use of a computer and the specific software to be used as a related service.  In examining the assistive technology plan developed by the school district and rejected by the parents, the hearing officer concluded the plan did not have to be included in the IEP nor did it have to contain the specifics requested by the parents.

The District provided the student with access to a computer both for school and home use.  The Hearing Officer considered this to be “educational methodology” and not a related service.  Therefore, the choice of the hardware and software was ruled to be the responsibility of the District and need not be included in the student’s IEP.

Note:  This has changed after 1997 IDEA reauthorization assistive technology is considered a related service.

Computer:  Inquiry from parent as printed in 29 IDELR 1089 (November 6, 1997):

Inquiry:  A parent requested assistance in obtaining a computer for her child, a student with dyslexia.  Assistive Technology which is required for FAPE must be provided.  The decision whether a student requires assistive technology is to be made by the IEP team and must be based on the individual needs of the student.  If a student requires a particular assistive technology device in order to receive a FAPE, the district is obligated to provide that device at no cost.  The student’s IEP must include a description of any needed device. If the participants on the IEP team determine that a child with disabilities requires assistive technology in order to receive a free appropriate public education and designates such assistive technology as either special education or related services, the child’s IEP must include a specific statement of such services, including the nature and extent of such services. See 34 CFR Section 300.346(a((3); Appendix C to 34 CFR Part 300, Question 51.

Any assistive technology needs stated on the IEP must be provided at public expense., under public supervision and direction, and without charge.  The IEP team must specifically consider whether the child requires assistive technology devices and services.

Laptop Computer:  Granite School District (Utah), 22 IDELR 405 (March 22, 1995).

Hearing officer ruled it was sufficient that the school district provided the student access to a computer.  The district was not required to provide a laptop computer, as requested by the student’s parents.

Parents alleged that the school district should be required to provide their child with a laptop computer to “assist him in written expression, assignment completion, note-taking, etc.  The parents allege that a lap top computer should have been included on the IEP.  The level II hearing officer held that it was sufficient that the School District provided the student with access to a computer, stating:

“No case law was offered by either side or discovered by the hearing officer in researching this law that spoke to this issue directly.  Therefore, the determination concerning the provision of an assistive technology device – specifically, a lap-top computer – must be made by considering [the student’s] needs and the extent to which a lap-top computer will enable [the student] to receive benefit from his educational program.  In giving due consideration to the testimony of the parents’ witnesses, [the student’s] educational needs, and the clearly expressed intent of the District to provide [the student] easy access to a computer, the District’s IEP was not deficient in omitting a lap-top from the IEP as a related service/assistive technology device that would enable [the student] to benefit from special education services.  The evidence and testimony presented simply did not provide a sufficiently convincing rationale that a lap-top computer was required to enable the student to benefit from special education.”  (Emphasis Added).

Laptop Computer: Board of Education of the City School District of the City of New York, (New York) 21 IDELR 265  (June 7, 1994)

The school district appealed from the decision of a hearing officer  which directed the District to provide a 15-year old student with a lap top computer and printer for the child’s exclusive use until the child reaches 21 years of age.

The parents alleged that the school district denied a free appropriate public education because it required the child to complete homework assignments on a compatible computer owned by the parents.  The level II hearing officer rejected the parents’ claim, stating:

“States and school districts may use whatever public and private sources of support which are available to provide a free appropriate public education (34 CFR 300.301).  I find that there is no basis in the record for finding that the child’s use of an existing family computer conflicts with the regulatory requirement that special education and related services be provided without charge to the parent.”

Computer with Voice Synthesizer:  Clarion-Goldfield Community School District, (Iowa) 22 IDELR 267 (October 18,1994).

A due process hearing was requested by parents of an 8-year old student with Down’s Syndrome, developmental delays, and communication deficits to determine whether the IEP was appropriate.  Witnesses for the parents testified to the need for assistive technology in the form of a computer with an adaptive keyboard and voice synthesizer to help the student to learn to communicate.  The parents had requested a dedicated computer for Joseph’s use in the classroom.   The decision quotes the definition of assistive technology device (“any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of individuals with disabilities.”) and finds that the school district had not yet properly screened for the  student’s need for assistive technology.  The student was found to be entitled to this screening.

The District is then charged with conducting an evaluation “if one is indicated by the screening and with providing the assistive technology if such is required to provide an appropriate program.”

Eyeglasses:  OSEP response to following inquiry, 22 IDELR 629, (April 12, 1994).

If a student with a vision impairment requires eyeglasses regardless of whether he or she was attending school, then a public agency will NOT be required to provide them to the student.  However, if the public agency determines that the child with a disability requires eyeglasses in order to receive FAPE and the child’s IEP specifies that the child needs eyeglasses, then the public agency must provide the eyeglasses at no cost to the parents and could seek funds from outside of the agency to do so.  When evaluating a student, the public agency must assess all areas related to the suspected disability, including if appropriate, vision and hearing, Thus, if the student is suspected to have visual or hearing deficits, then the public agency is responsible for the costs of the vision and hearing assessments.

It should be noted that shortly after the passage of the Education of the Handicapped Act in 1978, the Bureau of Education for the Handicapped in the U.S. Department of Education issued a policy letter opining that individually prescribed devices such as glasses and hearing aids “are generally considered to be personal items, which are not required to be provided under [EHA].  Minsky, EHLR 211:19 cited in Northville Pub. Sch. May 14, 1990, 16 Educ. for the Handicapped Law Rep. 847.

FM Unit:  Board of Education of the City School District of the City of New York, (New York) 34 IDELR 163 (September 8, 2000).

The parent disagreed with the school district’s recommended general education placement for their daughter who was found to have “hearing sensitivities.”  They claimed that the school was not carpeted, exposing their daughter to unacceptably high noise levels.

In finding for the school district, the hearing officer cited testimony from the school district’s audiologist “that the controls on the student’s hearing aids could be set at a level that would prevent her from hearing sounds that would be uncomfortable for her. The district addressed the difficulties presented by the student’s hearing sensitivities by providing her with the appropriate assistive technology and instructing her how to use the devices.”  The CSE in its annual review in 1998 recommended that the child receive 30 minutes of hearing education services two times per week in a group with a student-teacher ratio of 3:1.  Her IEP included preferential seating and hearing aids.  The use of FM amplification was listed as an IEP test modification.  The CSE also recommended that the child use a BTE FM device.  Three annual goals related to the child’s ability to speechread, use critical listening skills, and use her FM device in classes.

The issue is whether the environment of a specific placement addresses appropriately a child’s special education needs resulting from her disability.

The appeal by the parents was dismissed.   The  ruling found that the school district had addressed the child’s difficulty by “specifying that she be provided with a BTE  FM unit, and that she be instructed so that she could independently use that assistive technology in each of her classes.”

Frequency of reviewing assistive technology situation: Del Norte County Unified School District, (California) 33 IDELR 50  (April 21, 2000).

Hearing officer ordered that assistive technology needs of the student should be assessed quarterly.

Hearing Aids:  Inquiry Letter to Office of Special Education Programs as reported at 22 IDELR 373 (December 22, 1994).

It has been the policy of OSEP that a public agency was not required to purchase hearing aids for students because the device would be needed regardless of whether the students were attending school.  But the policy does not apply to a situation where it is determined by the agency that a child with a disability requires a hearing aid in order to receive a free appropriate public education and the IEP specifies that the child needs a hearing aid.

Oxygen Tanks: Silsbee Independent School District,(Texas) 25 IDELR 1023 (March 26, 1997).

A hearing officer found that oxygen tanks at school to be used when necessary for a student suffering from a seizure disorder “was a safety measure to ensure the student was capable of attending school,” and as such qualified as “assistive technology devices the district was required to provide.”

Ownership of Assisted Technology Devices: OSEP June 9, 1994 response to following inquiry (as cited in 21 IDELR 1067).

Is a school district responsible for an assistive technology device, purchased by the parent, if that device is utilized by the student in completion of his/her IEP goals and therefore his/her academic work?  Response:   “Although Not Mandatory, Assuming Liability for Family-Owned Assistive Technology Devices is Reasonable… Although a district must provide assistive technology devices that are necessary for FAPE at no cost to parents, federal law does not specify whether a district must assume responsibility for such a device when it is purchased by the parent and used by the district to implement the student’s IEP, either in school or at home.  However, it is reasonable for states to require districts to assume such liability, since the district is responsible for providing services and devices specified in a student’s IEP, and without the use of the family-owned device, the public agency would be required to provide and maintain a needed device.  However, there may be some instances when assuming such liability would create a greater responsibility for the district than exists under federal law.”

SUMMARY

  • School Districts are not obligated to provide most technologically advanced version of technology or a specific brand (Tusacloosa) (Maravoneck).
  • School Districts must provide assistive technology evaluation in  a timely manner (Independent Sch. Dist. #623).
  • An assistive technology evaluation should be conducted if necessary for the student; and not only upon parent initiation. (Independent #623)(Clarian-Goldfield).
  • IEP should contain a specific description of the purpose  for which the device is to be used to provide sufficient guidance to the individuals who implement the IEP (Maravoneck).
  • Privately placed students, where placement is ordered by hearing officer or placed by school district have a right to assistive technology (Harford County).
  • Laptop computers are not required for children who need a computer, unless a lap top is specifically necessary to provide the child educational benefit.  However, if the child’s computer needs are significant, a dedicated PC at the school may be necessary. (Granite Board of Education of City of New York)
  • School Districts only need to provide access to technology at home if the IEP team determines that the child needs home access to those devices in order to receive FAPE (e.g. For homework completion) (Appendix A CFR #36).
  • Devices should be provided at no cost to parents, and this includes normal wear and tear, but may not include costs for extraordinary repair (Appendix A CFR #36). Exception is if parents purchased the device themselves for home and school use, but the student does not need the device at home – the School District is only required to reimburse parents for the proportionate share of use at school.  (Independent #623).
  • If a student requires eyeglasses and hearing aids for functioning outside of school then the School District will not be required to provide.  (Board of Education of City of New York) (March, 1994 Inquiry Letter).