|Vol. 7, No. 3 Summer 1999||
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Revised IDEA Regulations Promote Student Access to AT
By Brian J. Hartman, Esquire, Project Director, Disabilities Law Program
The special education system has long been a major source of assistive technology (AT) for eligible students. In most cases, students rely on the Individuals with Disabilities Education Act (IDEA) to support AT requests. The Federal Department of Education recently published a comprehensive set of new IDEA regulations that strengthen the role of AT in schools. (1) Buttressed by recent court decisions and agency interpretations, the regulations hold great promise for enhanced student achievement and access to extracurricular activities.
A student's instructional plan is generally defined by a single, key document-the individualized education program (IEP). The new IDEA regulations require educators to focus on AT when developing IEPs, determining whether "the child requires assistive technology devices and services" (2) and explicitly identifying any AT supports in the IEP document.
Although schools are instructed to consider AT in the IEP, parents must work to ensure that a thoughtful process truly occurs. Federal regulations do not require IEP teams to document the consideration of AT needs, creating potential for oversight.(3) Delaware parents are fortunate because the State has adopted a more proactive approach regarding AT needs. During the 1997-98 school year, the DATI conducted a statewide survey of educators which confirmed that over 60.3% favored including an AT section on the IEP document. Consistent with this perspective, the State's March 1998 IEP form included a "check-off" section for team members to indicate whether individual students required AT as a supplementary aid or service. The State's new draft addresses AT in a "general accommodations" section in which "accommodations/ modifications, services, including assistive technology and support for personnel" are listed, with an emphasis on how such accommodations shall be linked to the general curriculum.
The newer IDEA regulations clarify that decisions related to AT should be reached by an IEP team consensus (rather than a "majority vote"), with parents acting as equal partners with school personnel. Yet, as the public agency involved, the school holds ultimate responsibility for ensuring that the IEP includes provision for any service required in order that the child receive a free, appropriate, public education (FAPE).
IEP discussions often spark differences of opinion about the need for a particular device, scope of training, and usage. Some participants may favor a "bare bones" model while others may prefer the deluxe model. In assessing what is "appropriate," recent case law provides some guidance. In March 1999, the Federal Appeals Court covering Delaware criticized a lower court special education decision that denied compensatory education for applying too low a standard of "appropriateness," stressing that a satisfactory IEP must provide "significant learning," "meaningful benefit," and much "more than a trivial educational benefit." Moreover, in the context of a student with high intellectual potential, the Court held that the scope of programming should reflect that capacity for learning. Applied to AT decision-making, this precedent supports the provision of AT devices and services that facilitate genuine, meaningful progress consistent with student potential.
The new Federal regulations stress that necessary AT must be adequately described in the IEP. Consistent with past precedents, the regulations reaffirm that AT may be considered by IEP teams as 1) special education, 2) related services, or 3) supplementary aids/services to keep a student in the least restrictive educational setting.(4) The regulations require a specific IEP statement that describes the nature and extent of AT devices or services when they are recommended under any of these three approved categories.
Scope of Assistive Technology
The regulations affirm that a district's AT training obligation extends to students, parents, and professionals interacting with the students. (5) Although the need for such training seems obvious, districts often supply an AT device without offering full training to facilitate its use.
A 1999 Federal Court decision illustrates this scenario. In East Penn School District vs. Scott B., a district delayed the acquisition of a laptop with a word prediction program for a student with mental retardation and physical disabilities.(6) The Court found that the district compounded its error by failing to train the student's parents, the student's classroom aide, and only partially training his teacher in use of the laptop and programs. The student's training was likewise deficient. In addition to an award of compensatory education for other violations, the Court awarded the student "two years (270 hours) of compensatory education in assistive technology."
2) Non-academic and Home Settings
The new regulations clarify AT's availability outside the classroom. They explicitly authorize districts to provide AT devices for use in settings other than school if an IEP team feels that a child needs access to this technology in order to receive a FAPE (e.g., a youngster may need AT to complete homework).
Apart from home, students may also need AT in extracurricular and non-academic settings, and the revised Federal IEP regulations require equal opportunity for participation in these activities.(7) Activities include such settings as meals, recess periods, counseling services, athletics, transportation, health services, recreational activities, and school-sponsored special interest groups or clubs.(8) IEPs must state the provisions made to allow children to participate in extra-curricular and other nonacademic activities together with nondisabled students and other students with disabilities.
Transportation particularly receives special consideration, promoting the transportation of students with disabilities with nondisabled peers. If necessary, such integrated transportation may be facilitated by provision of AT. This mandate includes proper training of school bus drivers in use of the AT supports.(9)
3) Personal Devices and Services
The new regulations reaffirm the traditional Federal view on personal devices such as eyeglasses and hearing aids. Such items are not covered if the child needs them regardless of school attendance, yet they are covered if characterized as special education, a related service, or a supplementary aid or service and included in an IEP.
A recent Supreme Court decision provides supplemental support for the provision of AT-related personal services. In a highly publicized opinion, the Court held that schools may be required under the IDEA to provide 1:1 staff support (e.g. nurse) to medically fragile students. In this case, a student required repositioning in his wheelchair, suctioning of his tracheostomy tube, catherization, and assistance with his ventilator and eating. The Court held that such activities were "related services" within the scope of the IDEA. Some of this student's supports could certainly qualify as AT services. The Court's endorsement of "intensive" personal support services suggests that the allowable scope of AT services under the IDEA may be equally broad.
4) Examples of AT
While there is no federal "approved list" for AT, (10) the regulation comments do suggest example items that may be covered, which include word prediction software, adapted keyboards, voice recognition and synthesis software, head pointers, enlarged print, captioning, FM systems, hearing aids, cassette recorders, and electronic note-takers.(11)
In sum, the new regulations hold great promise for improving student access to AT. IEP teams must consider AT needs and specifically describe AT supports in the IEP document. The role of parents in the decision-making process is enhanced. The duty to train students, parents, and professionals is reaffirmed. AT availability is not limited to the classroom, but extends to a wide range of extracurricular and nonacademic settings. Finally, while there is no federal "approved list" of AT, regulatory comments endorse a variety of items as acceptable for inclusion in IEPs.
1 The regulations appear at 64 Fed. Reg. 12405 (March 12, 1999). They are generally effective May 11, 1999. However, compliance may be deferred in certain instances until receipt of FY 1999 funds, expected between July 1 and October 1, 1999. 64 Fed. Reg. At 12406-12407. Copies of the regulations are available on several Web sites, including http://www.ed.gov/offices/OSERS/IDEA/regs.html.
2 34 C.F.R. §300.346(2)(v).
3 64 Fed. Reg. at 12591 (March 12, 1999).
4 34 C.F.R. §300.308(a).
5 34 C.F.R. §300.6; 64 Fed. Reg. at 12540 (March 12, 1999).
6 Apart from delayed acquisition, the Court noted that testing at the A.I. duPont Institute confirmed that the word prediction program had not been properly installed. At 1062.
7 34 C.F.R. §§300.306 and 300.553.
9 64 Fed. Reg. at 12551 (March 12, 1999).
10 64 Fed. Reg. at 12540 and 12575 (March 12, 1999); OSEP Policy Letter to Naon, 22 IDELR 888 (January 26, 1995).
11 64 Fed Reg. at 12540 and 12575 (March 12, 1999).
Revised IDEA Regulations Promote Student Access to AT