Myths and Misconceptions
By Lewis Golinker, Esq.
Assistive Technology Is A New Benefit Under The Individuals With Disabilities Education Act
In Weber, Special Education Law & Litigation Treatise, '23.13 (LRP: 1992), the opening sentence of the section on technology states: "assistive technology is a relatively recent addition to the IDEA...."
This is not correct. Assistive Technology is a term of art. It is comprised of two definitions:
"assistive technology devices and assistive technology services. These definitions were first coined in the Technology Related Assistance for Individuals with Disabilities Act of 1988, PL 100-407, 29 USC 2202, and were incorporated into the IDEA in 1990, and its regulations in 1992".
Regardless when these definitions were added, devices that might now may be classified as assistive technology devices and services that now may be classified as assistive technology services have all been within the scope of the IDEA since the enactment of PL 94-142 in 1975. There never has been any justification for schools (LEAs) to refuse to consider, provide or pay for these devices or services, whatever they may have been called or however they may have been described.
The key to whether a device or service is within the scope of the IDEA is not what it is called, but how it is to be used: the purposes it will serve, not its label. The definitions of "special education," "related services," and "supplementary aids and services" are not limited to specific activities, services, techniques or devices, but are written expansively. The definition of "related services" expressly states the list of specific services stated in the IDEA regulations is not exhaustive. 34 C.F.R. 300.16 (comment).
The U.S. Department of Education, the administrative agency responsible for IDEA implementation, supports this view. See e.g., 16 EHLR 1317 (OSEP Aug. 10, 1990) (LEAs may not categorically refuse to consider assistive technology; issued prior to the IDEA amendments).
Further support for this view is found in numerous administrative and judicial decisions issued throughout the IDEA's history. These decisions recognize that a wide variety of assistive devices were within the scope of the IDEA long before the term "assistive technology" was added to the statutory lexicon. A comprehensive review of those decisions is not provided here, but consider the following:
Espino v. Bestiero 520 F.Supp. 905 (S.D.Tx.1981)(requiring LEA to provide an air-conditioned classroom for a student unable to regulate his body temperature);
EHLR 506:325 (SEA MA 1984), re: use of augmentative communication device; taking technology home;
EHLR 506:333 (SEA WA 1985), re: use of Braille;
EHLR 353:307 (OCR 1988), re: auditory trainers;
EHLR 213:186 (OSEP 1988), re: mandate to provide devices;
EHLR 213:187 (OSEP 1988), re: computer conferencing for IEP meetings;
EHLR 509:306 (SEA MA 1988), re: computer and other adaptive equipment;
EHLR 352:592 (OCR 1988), re: typewriter, tape recorder, word processor;
EHLR 213:269 (1989) re: computers and "cutting edge" technology;
EHLR 353:286 (OCR 1989) re: augmentative communication device;
EHLR 213:211 (OSERS 1989), re: duty of student to bring wheelchair to school from home;
EHLR 213:209 (OSERS 1989), re: wheelchair as a related service
These decisions and many others should make clear that students' right to "assistive technology" existed independent of the 1990 IDEA Amendments. There also have been some decisions and policy letters since the 1990 Amendments. Consider, for example: 18 IDELR 627 (OSEP 1991) taking technology home); 18 IDELR 1039 (OSEP 1992) (calculator can be an assistive technology device); 18 IDELR 1037(OSEP 1992) (FM training system can be an assistive technology device); Letter dated Nov. 19, 1993 from Thomas Hehir to Peter Seiler schools may be required to purchase hearing aids as assistive technology devices).
The lesson from even this abbreviated review of the implementation of the IDEA and its PL 94-142 predecessor is that assistive technology devices and services must be provided by schools for the same purposes and goals and in accord with the same substantive considerations and procedures as any other form of special education, related service or supplementary aid or service.
Schools Can Exclude Assistive Technology Devices That Are "Personal Devices" Or That Are "Generally Necessary For A Student's Participation In The Many Dimensions Of Social Living"
by Lewis Golinker, Esq.
A recent issue of the Special Educator attempts to provide guidance to school officials about their obligations to provide devices such as eyeglasses and hearing aids to students with disabilities.
Vol 10, # 12, at p. 179 (Jan. 21, 1995). This question may be of concern to school officials and parents following the issuance of a U.S. Department of Education Policy Letter which states these items fall within the IDEA definition of "assistive technology devices." See Letter dated Nov. 19, 1993 from Thomas Hehir to Peter Seiler, re: school requirement to purchase hearing aids as assistive technology devices.
Hearing aids and eyeglasses are without question within the scope of "assistive technology devices." A straightforward reading of the assistive technology device definition makes this conclusion inescapable. Assistive technology devices are defined to include: "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 abilities of children with disabilities." 34 C.F.R. ' 300.5.
In addition, the process of determining whether a student with a hearing or vision impairment requires a hearing aid or glasses is not difficult. The question then, is this: if hearing aids and eyeglasses are assistive technology devices, and can be shown to be necessary, does it automatically follow that school districts are required to provide them?
The answer is "yes," according to the 1993 OSEP Policy Letter. Unfortunately, the Special Educator provides a different answer, which is wrong.
The U.S. Department of Education position regarding school funding for devices such as hearing aids and eyeglasses has evolved over time. It has addressed hearing aids and eyeglasses in two Policy Letters: first in 1977, and most recently in 1993.
In 1977, OSEP said "no" in response to a question whether schools were required to provide eyeglasses and hearing aids. The 1977 OSEP Policy Letter states:
"Individual prescribed devices (e.g., glasses and hearing aids, etc.) are generally considered to be personal items, which are not required to be provided under Part B [of P.L. 94-142]. I have discussed this letter today with Mr. John Wodach of the Office of Civil Rights and he indicated that it is consistent with the interpretation of Section 504 of the Rehabilitation Act." EHLR 211: 19, 21 (OSEP 1977).
OSEP provided no further analysis. For example, no reference was made to anything in PL 94-142 to authorize this conclusion, regardless whether it is consistent with Section 504. In other contexts, OSEP has stated its authority is limited to interpreting PL 94-142, not Section 504. But as to this issue, no basis in PL 94-142 was stated. In addition, no explanation was provided to distinguish other related services, such as occupational and physical therapy, which typically must be "prescribed" as a condition of reimbursement, e.g., 42 C.F.R. ' 440.110(a) & (b), yet which nonetheless are related services. 34 C.F.R. '300.16(b)(5) &(b)(7).
From 1977 through 1993, there was no subsequent re-assessment of the "personal devices" exception, notwithstanding the decisions and OSEP Policy Letters noted in rebuttal to Myth # 1 that pertained to devices that may also have been "individually" prescribed."
In 1993, the issue of schools' duties to provide needed hearing aids and eyeglasses was raised again, this time in the context of the 1990 addition to the IDEA of the definition of assistive technology devices. The 1993 OSEP Policy Letter reverses its earlier judgment about "personal devices." It makes two points: first, schools must evaluate students who have or are suspected of having hearing and/or vision impairments. This is both a general obligation under the IDEA, 34 C.F.R. '' 300.530 et seq., and it is a specific obligation under the definition of assistive technology services. 34 C.F.R. ' 300.6(a). Second, if those evaluations identify needs for devices that fall within the definition of assistive technology devices, then the school districts must provide them. The Policy Letter explains this duty in the context of the IDEA regulations related to assistive technology.
No further mention is made of the "personal device" exception. The proper conclusion to be drawn from the Policy Letter is that it does not survive the addition by the IDEA of the provisions related to assistive technology.
The Special Educator Interpretation
In January 1995, the Special Educator attempted to clarify this issue for its readers, largely school districts. However, its response is incorrect and if followed will cause the denial of obviously necessary assistive technology devices. Vol. 10 #12 at p. 179 (Jan. 21, 1995).
The Special Educator opinion fails to acknowledge the existence of either the 1993 or 1977 OSEP policy letters. It also invents and suggests schools apply a "test" that could easily be used by schools to refuse to provide hearing aids and eyeglasses, but in addition, a wide range of both assistive technology devices and ordinary related services. The "test" proposed by the Special Educator is stated as follows:
"The best response is probably that the burden of providing individually prescribed items such as glasses and hearing aids would fall upon your school system only if the special education-eligible child's IEP planning team finds that such devices are uniquely essential to his or her reasonable participation in the designed educational program.
If, on the other hand, such assistance is generally necessary for the child's participation in the many dimensions of social living, then your school's responsibility would be merely to assist the parents to locate and maintain such equipment." (emphasis supplied)
There is no clear explanation of the underlying basis for this test. One possibility, though not stated explicitly, is the following statement in the 1993 OSEP Policy Letter:
"Historically, it has been the policy of this Office that a public agency was not required to purchase a hearing aid for a student who was deaf or hearing impaired because a public agency is not responsible for providing a personal device that the student would require regardless of whether he/she was attending school. However, this policy does not apply to a situation where a public agency determines that a child with a disability requires a hearing aid in order to receive a FAPE, and the child's IEP specifies that the child needs a hearing aid."
The first sentence quoted here appears to cast the definition of "personal devices" in terms of the student's need for the device beyond school, i.e., "that the student would require regardless of whether he/she was attending school." This is a narrower, but similar concept to the position stated in the Special Educator.
Regardless of its basis, this so-called "test" will not work. It fails as a matter of common sense, it is not consistent with the basic principles of the IDEA, and as noted above, it is contradicted by the 1993 OSEP Policy Letter. As a matter of common sense, the most fundamental flaw in this "test" is that there is no purpose for providing any element of a student's general or special education program unless it will benefit the student in his or her life beyond school walls. If benefits to a student in "the many dimensions of social living" is the generally applied standard to exclude a device or service, there would be no duty to teach academic subjects. For what reasons other than preparation for "participation in the many dimensions of social living" do students learn math or science concepts and to read?
This "test" also fails under the most general standards applicable to the IDEA.
Measured against the definitions of the component parts of a FAPE, eyeglasses and hearing aids are most likely to be classified as related services. The definition of a related service is a service "required to assist a child with a disability to benefit from special education." 34 C.F.R. ' 300.16(a). There is no reference to whether the child can benefit from the service "in the many dimensions of social living." And, a "required to enable a child ... to benefit" standard is not as strict as the one stated in the "test:" that the devices "are uniquely essential to his or her reasonable participation in the designed educational program."
In addition to its wording, this "test," if actually applied to the specific question of eyeglasses and hearing aids, amounts to a transparent "excuse" for schools never to provide them. No student will be able to show either eyeglasses or hearing aids are not "generally necessary for the child's participation in the many dimensions of social living." Children may not see or hear clearly at home or in their community, and their need for hearing aids or eyeglasses may be identified as they enter school. But it is without question or debate that these children have a need to see and hear clearly not only in the school building, but throughout their day, both at home and school. Yet that obvious conclusion would be the determining factor under this so-called "test," to justify schools' refusal to provide these devices.
If this "test" is applied beyond hearing aids and eyeglasses, it would excuse schools from responsibility to provide almost any related service. A school would not have to provide "clean intermittent catheterization" to a student in school; it is obvious the child will have to urinate out of school as well. But see Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883(1984).
Other student health services would face similar barriers. For example, a student who required prescription medication at home and in school would not be able to require the school to dispense it under this test. Nor would a child on a ventilator or with respiratory care needs be able to receive the aide or nursing services necessary to monitor the device or provide the necessary services. But see 34 C.F.R. ' 300.16(b)(11); Neely v. Rutherford.
Common Funding "Excuses" Given In Response To Requests For Funding Of Computers & Environmental Control Devices in the Major Funding Programs
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