Volume I Issue 7 April 1996
OBTAINING ASSISTIVE TECHNOLOGY
THROUGH THE PUBLIC SCHOOLS
Copyright 1996, Neighborhood Legal Services, Inc.
SPECIAL EDUCATION LAW: THE BASICS
The rules governing special education are in the federal Individuals with Disabilities Education Act (IDEA), the State Education Law and in federal and state regulations.1 IDEA guarantees eligible children a free appropriate public education. Since all special education services, including assistive technology (AT), must be free, a family's income is never a factor.
The local school district (the "District") is responsible for providing special education services without cost to the parents or student. The provisions discussed in this article apply to students ages 3 through 21. (Part H of IDEA, which we do not discuss, covers children from birth through age two.)
Special education is instruction designed to meet a student's unique needs. It includes assistance by a special education teacher to the student or to the regular education teacher. It can occur in a regular class, a resource room, a special class for all or part of the day, or in a special school. To qualify for services, a child must have a disability, such as a speech, health, orthopedic, hearing or visual impairment, mental retardation, or a learning or emotional disability, which interferes with the ability to benefit from a regular education program.
Related services are developmental, corrective and support services required to assist a student to benefit from education. They include, among other things, occupational and physical therapy, speech pathology, counseling and health services.
The U.S. Supreme Court, in the Rowley case,2 ruled that a school is not required to provide the "best" education or one designed to maximize potential. However, the program must be based on the child's unique needs and be designed to enable the student to benefit from the education.
IDEA requires that students receive special education services in the least restrictive environment. Removal from regular classes should only occur when a child cannot be successfully educated in regular classes with supplemental services. If removed for part of the day, the student must still be educated in the mainstream as much as possible.
The child's needs and the services to be provided must appear in a written individualized education program (IEP). The IEP must be developed at a meeting with a group of people, including the parents, who are knowledgeable about the child. In New York, the Committee on Preschool Special Education (CPSE) develops the IEP for 3 and 4 year olds and the Committee on Special Education (CSE) serves this function for students between ages 5 and 21.
The IEP must specify the placement, all special education services, any supplementary aids or related services and how often each will be provided. The CSE must review the IEP at least once per year and more often if requested by a parent or teacher.
AT IN THE SCHOOLS -- WHAT IS IT?
Since 1990 IDEA has included definitions for AT. An AT Device is anything used to maintain or improve functional capabilities of a person with a disability. An AT Service is one that assists in the selection, acquisition or use of an AT device. It includes evaluations, adapting, maintaining or repairing AT devices. It also includes training or technical assistance for professionals, the individual or, where appropriate, the family.3
Some examples of AT devices used in schools:
· Computer Equipment and Adaptations: including Braille printers, voice output and use of switches, allowing computer access through movements of the eye, head or neck
· Augmentative Communication Systems: including talking computers
· Assistive Listening Devices: including hearing aids, personal FM units and closed caption TV
· Assistive Feeding Devices: including electric feeders
The legislative history for IDEA stresses the importance of AT in the lives of students. The House Report notes that advances in AT provide new opportunities for students to participate in educational programs. For many, AT will redefine an "appropriate placement in the least restrictive environment." 4
The federal regulations specify that AT may be considered as special education, related services or supplementary aids and services to ensure placement in the least restrictive environment. These services must be approved by the CSE and listed in the IEP.5
New York has yet to adopt IDEA's AT definitions, but requires the IEP to indicate "any specialized equipment or adaptive devices needed for the student to benefit from education."6 The State Education Department has also issued a helpful 1995 memo, "Assistive Technology Devices and Services," which provides an in-depth analysis of AT in schools.
HOW TO OBTAIN AT FROM THE SPECIAL EDUCATION SYSTEM
1. Send Request to CSE:
Requests for special education services, including AT, should be made in writing to the CSE or CPSE Chair. This starts the referral process to determine what AT may be necessary.
2. Evaluations at District Expense:
· Primary Evaluation: Before the CSE can determine the need for AT, it must obtain an appropriate evaluation.
· Independent Evaluation: If the parents disagree with the school's evaluator, they can ask the school to pay for an independent evaluation.
3. Criteria for AT Approval:
The key issue is whether AT is needed to ensure an appropriate education. This must be addressed by the CSE based on evaluations and other information about the child. Using the Supreme Court's standard in Rowley, an AT device can be approved if needed to ensure reasonable educational progress in the least restrictive setting. AT should be approved if it will enable a child to remain in a regular classroom.
4. Other issues:
· Ownership: AT remains the school's property. If the student graduates or moves, the device stays with the original District. Of course, the new District must itself provide appropriate services to the student.
· Medicaid or Private Insurance: The District may request use of Medicaid or insurance to pay for AT, but use must be voluntary. If the parents refuse, the District must pay. Also, if there is a co-pay or deductible, parents should ask the District to pay that part. Parents must be careful about paying for items the District is required to purchase if their insurance has lifetime limits. If Medicaid or insurance are used, the family owns the device even if the District pays a portion.
· Taking Equipment Home: Many students could benefit by having the AT device on evenings, weekends and vacations. If this will be an issue, the parent(s) should seek an IEP provision allowing home use.
· Training: of the child, parent and key school staff may be critical to ensure full use of a device. Training is included in the definition of AT services.
· Repairs and Maintenance: The District should cover these expenses if it purchased the device. Even if the parents obtained the device, if the device ensures an appropriate education, the District should be responsible for its repair and maintenance. The IEP should clarify the responsibility for training, repairs and maintenance.
APPEALS
1. The Impartial Hearing:
A parent who disagrees with a proposed IEP can request a hearing. The parent can be represented by an attorney or other advocate and can present witnesses and other evidence to support the appeal.
2. Status Quo Protection:
The current program remains in place during the appeal. If last year's IEP provided for a special computer and the new IEP eliminates it, an appeal guarantees that the computer is provided during the course of the appeal. Also, if a student moves, if the new District does not recommend the computer and the parents request a hearing, the new District must provide the computer until the case is resolved. Finally, if a child received a computer through the CPSE and, upon becoming school aged, the CSE refuses to recommend the computer and the parents request a hearing, the District must provide the computer in the interim.
SECTION 504 OF THE REHABILITATION ACT
Children whose disabilities do not meet special education criteria, who still need special assistance, including AT, are covered by Section 504 of the Rehabilitation Act.7 Section 504 requires reasonable steps to ensure that students with disabilities have access to the school's full range of programs and activities.
If such a student needs an AT device to fully participate in school activities, Section 504 may require the school to provide the device. Section 504 will, in many cases, also require payment for training, repairs and maintenance.
Examples of AT which can be funded under Section 504:
· Child with physical disability cannot sit at typical desk
The school must take reasonable steps to ensure participation in a regular classroom. Purchase of a specially designed desk may be required.
· Child with vision problem cannot read from typical computer screen
The school may be required to purchase a special monitor or computer screen overlay to enlarge characters on the screen. If computers are used in the regular curriculum, the school must take all reasonable steps to make those computers useable by children with disabilities.
OBTAINING AT UNDER SECTION 504
For children with disabilities not covered by IDEA, Districts must develop a procedure to determine Section 504 eligibility and to evaluate the child's needs. Districts may choose to use CSE procedures and the IEP to evaluate a student's needs. If not, the procedures developed must include the following:
· There must be a comprehensive, individualized evaluation of needs, with regular reevaluations.
· Decisions must be made by a group of people, including the parents, who are knowledgeable about the child, the evaluation information and the placement options.
· The student's needs and services to be given must be identified in writing.
· Parents who disagree have due process rights, including the right to a hearing. Section 504, however, does not mandate the right to an independent evaluation at District expense nor to "status quo."8
NOTES:
______________________________________________________
1 See IDEA, 20 USC 1400 et seq. and 34 CFR Part 300.
See also NY Education Law, Article 89 and 8 NYCRR Part 200.
2 Board of Education v. Rowley, 458 U.S. 176 (1982).
3. 20 USC 1401 (a)(25) & (a)(26); 34 CFR 300.5 & 300.6.
4. House Report No. 101-544, p. 1730.
5. 34 CFR 300.308.
6. 8 NYCRR 200.4(c)(vii).
7. See 29 USC 794, 34 CFR Part 104.
8. 34 CFR 104.36.