|Volume 14, No. 4, Fall 2006||
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Lexie McFassel, Esq., Staff Attorney
Disabilities Law Program
In 2004, the Individuals with Disabilities Education Act was re-authorized as the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004). The re-authorization included some changes from the prior law. There are two main impacts of IDEA 2004 regarding assistive technology: one of concern, and one which deserves some applause. The first impact was the exclusion from the definition of assistive technology of medical devices that are surgically implanted, and a correlative exclusion from related services of optimizing such devices. The concern focused largely on devices assisting individuals to hear. The second impact is the inclusion of NIMAS, or the National Instructional Materials Accessibility Standard, which will facilitate the provision of accessible instructional materials for blind, visually impaired, and print disabled students.
Before describing these issues in greater detail, it's important to briefly review the law of IDEA 2004. Essentially, IDEA 2004 requires that public agencies ensure that assistive technology devices or services, or both, as those terms are defined by the statute, be provided to a child with a disability if required as part of the child's special education (300.26), related services (300.24) or supplementary aids and services (300.28, 300.550(b)(2), 34 CFR 300.105).
The definition of assistive technology includes both devices and services. A device is defined as any item, piece of equipment, or product system, whether acquired commercially, modified, or customized from existing material, that is used to increase or maintain or improve the functional capabilities of a child with a disability. The definition is unchanged from the previous definition but adds an exception, which states, "the term (assistive technology device) does not include a medical device that is surgically implanted, or the replacement of such device."
An assistive technology service is defined as any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. The term includes:
- the evaluation of the needs of such child, including functional evaluation in the child's usual environment
- providing for the acquisition of assistive technology devices
- selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices
- coordination of and use of other therapies in conjunction with assistive technology devices
- training or technical assistance for such child, or the family of the child, where appropriate
- training and technical assistance for professionals, employers, or other individuals who provide services to, employ, or are substantially involved in the major life functions of the child (20 U.S.C. §1401).
Neither the statute nor the regulations include, or attempt to include, any type of listing as to what constitutes, specifically, an assistive device or service. The Federal Regulations on IDEA 2004, published on August 14, 2006, indicate in comment that the definitions do not list specific devices, and decline to list specific devices, stating that it would be impractical to include an exhaustive list of qualifying devices (34 CFR 300.5). The comments say essentially the same thing regarding the definition of service. The determining factors are: 1) for a device, that it is "used to increase or maintain or improve the functional capabilities of a child with a disability” and 2) for a service, if it assists the child with a disability in the selection, acquisition, or use of the device, and the IEP team determines that it is necessary to enable the child to receive FAPE (Free and Appropriate Public Education).
The exception that IDEA 2004 makes from this definition is exclusion of a medical device that is surgically implanted, and the replacement of that device. The exception falls under the definition of assistive technology device, and not under the definition of service. However, the definition of "related services" specifically excludes a medical device that is surgically implanted, the optimization of device functioning, maintenance of the device, or the replacement of the device.
From the passage of the new law until the publication of the regulations, there was concern regarding the new exception of assistive technology devices, which specifically excluded medical devices that are surgically implanted. The focus of concern was on the use and mapping of cochlear implants, and whether mapping of the implants would be considered a related service. A cochlear implant is a surgically implanted electronic device which provides a sense of sound to an individual who is deaf, or extremely hard of hearing. It works by using electrical impulses to stimulate any functioning auditory nerves in the cochlea. The device requires extensive "mapping" to the individual by an audiologist.
Several groups, alerted to the concern, commented. Specifically, the National Disability Rights Network stated that the exclusion in related services of a medical device that is surgically implanted, the optimization of device functioning, maintenance of the device or replacement could be specifically used to rule out mapping of cochlear devices, resulting in a relaxing of the school's obligation to provide related services ensuring the proper use of a device. This concern that the exception would result in exclusion of cochlear implants was echoed in comments offered by the Association of Assistive Technology Act Programs, the national organization representing State Assistive Technology Act Programs.
In fact, the comment to the regulations released in August responds directly to these concerns and states that the exclusion regarding "optimization of device functioning" does indeed specifically exclude, pursuant to the regulations, the mapping of a cochlear implant as a related service. The comments suggest that the Senate did not intend that the costs related to a particular course of treatment chosen by the parents, including the costs associated with mapping, be the responsibility of the school district.However, the public agency has a continuing obligation to ensure that hearing aids are functioning properly, and this includes ensuring that the external components of surgically implanted devices are
functioning. The public agency still has a role in providing other assistive technology needed, such as acoustical modifications, educational interpreters or other support services, and routine checking to determine whether the external portion of the device is functioning properly. The new IDEA also includes interpreting services and school nurse services in the definition of related service.
Although one significant impact of IDEA 2004 was an exclusion, another was an inclusion. IDEA 2004 adds definitions and guidance related to NIMAS. NIMAS refers to the National Instructional Materials Accessibility Standard, which is the standard to be used in the preparation of electronic files suitable and used solely for efficient conversion into specialized formats. Specialized formats means Braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities.
As part of the requirements for State eligibility for assistance, a State adopts the National Instructional Materials Accessibility Standard (NIMAS), and may either coordinate with the National Instructional Materials Access Center or give assurances to the Secretary that the agency will provide instructional materials to blind persons, or other people with print disabilities, in a timely manner. According to information found on their website, www.nimac.us, the National Instructional Materials Access Center (NIMAC) is the repository that will contain NIMAS files. IDEA 2004 established this means of assisting States by collecting and storing these files. IDEA requires the State to work collaboratively with the State agency responsible for assistive technology programs in carrying out the plans for accessing this resource.
Each State has responsibility for its coordination with the NIMAC, and must direct the publishers of the books purchased for instructional use to send files to the NIMAC. Educational agencies are responsible for writing contracts, when purchasing books, with terms requiring the publisher to submit the files. Then the educational agency will identify the authorized users who may obtain the files from the NIMAC, and have the files converted to accessible textbooks. There are also provisions which direct specific actions in order to conserve and avoid duplication of resources. Pursuant to the legislation, the NIMAC serves elementary and secondary level students.
The new NIMAS provisions assure that print instructional materials will be made accessible to children with disabilities, defined in 34 CFR 300.172(e)(i) as those who would qualify to receive books and other publications in accordance with the Act entitled "An Act to Provide Books to Adult Blind". This Act indicates that the persons to be served are those certified by competent authority as blind or otherwise disabled in a manner which renders them unable to read normal printed material as a result of physical limitations. Additionally, the statute requires local educational agencies to ensure that children with disabilities who need instructional materials in accessible formats, yet who fall outside the definition of eligibility for access through the NIMAC mechanism, nonetheless be provided with such materials in a timely manner.
The State of Delaware is going to work with NIMAS, and is currently following the process as it develops, according to Martha Toomey, Director of Special Education for the Delaware Department of Education. Delaware expects that working with the NIMAS system will provide benefits that extend beyond the individuals defined to receive services directly from NIMAS. Currently, it is an ongoing process within the State.
IDEA requires that educational agencies consider assistive technology needs when developing individualized educational plans for all children with disabilities. IDEA 2004 goes further by facilitating access to instructional content that has been rendered using a consistent file format. Furthermore, although IDEA 2004 excludes from the definition of assistive technology and related services surgically implanted devices, the educational agencies must still maintain and monitor such devices. The evolution of IDEA continues, and new ideas have been added.Back to top