Below is a comprehensive guide on obtaining accesses to assistive
technology from your neighborhood school. Remember that this topic may be
new to the staff at your local school so doing your homework on tech and
non-tech options will go a long way in helping make decisions that will
yield long term success.
kelly
URL: http://www.nls.org/specedat.htm
FUNDING OF
ASSISTIVE TECHNOLOGY
The Public School's Special Education
System as a Funding Source: The Cutting Edge
June 1999
Assistive Technology Funding & Systems Change Project
United Cerebral Palsy Associations
Suite 700, 1660 L Street, N.W.
Washington, D.C. 20036
(V) 1-800-872-5827; (fax) 202-776-0414
(email) [log in to unmask]
National Assistive Technology Advocacy Project
A Project of Neighborhood Legal Services, Inc.
Buffalo, New York
Individual Author:
Ronald M. Hager, Esq.
National Assistive Technology Advocacy Project
Neighborhood Legal Services, Inc.
295 Main Street, Room 495
Buffalo, New York 14203
(v) 716-847-0650; (fax) 716-847-0227
(tdd) 716-847-1322
(email) [log in to unmask]
(web page) www.nls.org
This Publication is Funded Through a Contract Received From the
National Institute on Disability and Rehabilitation Research, U.S.
Department of Education.
The Assistive Technology Funding & Change Project is fully funded
under Contract # HN9404001 from the National Institute on Disability
and Rehabilitation Research, U.S. Department of Education, to United
Cerebral Palsy Associations, Inc. and its subcontractors.
The opinions expressed herein do not necessarily reflect the position
of the U.S. Department of Education, and no official endorsement by
the U.S. Department of Education of the opinions expressed herein
should be inferred.
TABLE OF CONTENTS
A LISTING OF ACRONYMS AND ABBREVIATIONS
I. INTRODUCTION
II. OVERVIEW OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT
A. Free Appropriate Public Education
1. General Standards
2. The Supreme Court's Decision in Rowley
B. Least Restrictive Environment
1. Judicial Standard for LRE
2. New LRE Requirements Mandated by IDEA'97
C. The Written Individualized Education Program
1. Parental Participation in IEP Development
2. Evaluating the Child
3. IEP Team
4. IEP Content
D. Transition from Special Education to Adult Life
1. Transition Services
2. Developing a Transition Services IEP
3. Special Education and Vocational Rehabilitation Services
E. Private School Placements
1. Services to Students in Private and Parochial Schools
2. Unilateral Private School Placements
F. Due Process Protections
1. General Due Process Requirements
2. Status Quo: The Right to Retain Existing Services Pending
Appeal
3. Compensatory Education
4. Mediation
5. Attorneys' Fees are Available When the Student Wins an
Appeal
G. Discipline of Students with Disabilities
1. Introduction
2. IDEA'97
III. ASSISTIVE TECHNOLOGY REQUIREMENTS UNDER IDEA
A. History
1. Technology-Related Assistance for Individuals with
Disabilities Act of 1998
2. IDEA Amendments of 1990
3. IDEA'97
B. General Standards for Obtaining AT
1. Basic Eligibility Criteria
2. Evaluations
3. Examples of AT
4. Least Restrictive Environment and AT
5. Implementation
C. Special Issues
1. Home Use
2. Personally Prescribed Devices
3. Private Insurance and Medicaid
4. Repairs and Damages
D. AT Used with School Health Services
1. The Tatro Decision
2. The Garret F. Decision
IV. MAXIMIZATION OF A STUDENT'S POTENTIAL
A. The Rowley Decision
B. LRE and Uses of AT
C. Students in Transition
D. Effect of IDEA'97
V. EDUCATIONAL METHODOLOGY
A. Implications of the Rowley Decision
B. IDEA'97
C. Rowley Revisited
D. Methodology and AT
VI. OBLIGATIONS OF SCHOOL DISTRICTS UNDER SECTION 504
A. Introduction
B. Free Appropriate Public Education
C. Least Restrictive Environment
D. Due Process and Procedural Safeguards
E. Assistive Technology
VII. SYSTEMIC ENFORCEMENT OF RIGHTS UNDER IDEA AND SECTION 504
A. Complaint to the Office for Civil Rights
B. Complaint Resolution Procedure
C. Class Action or Other Litigation
VIII. CONCLUSION
A LISTING OF ACRONYMS AND ABBREVIATIONS
AT:
Assistive technology
EHLR:
Education for the Handicapped Law Reports
FAPE:
Free appropriate public education
IDEA:
Individuals with Disabilities Education Act
IDEA'97:
The 1997 amendments to the Individuals with Disabilities Education Act
IDELR:
Individuals with Disabilities Education Law Reports (formerly EHLR)
IEP:
Individualized education program
IEP Team:
The group of people, including the parent(s), responsible for
developing the IEP
LRE:
Least restrictive environment
OSEP:
The U.S. Department of Education's Office of Special Education
Programs
VR:
Vocational rehabilitation
I. INTRODUCTION
Assistive technology (AT) offers children with disabilities the
ability to meet their full potential. Specialized computer keyboards,
screen magnification systems and specially-designed software offer
children with physical, visual or cognitive impairments the
adaptations they need to allow them to benefit from 1990s technology
that we take for granted. Similarly, items like augmentative
communication devices and FM systems offer students with speech or
hearing impairments the ability to fully participate in the
educational experience. Other AT devices, and the training needed to
understand their use, will help prepare students as they transition
from special education programs to adult activities.
Most of the AT that is available today did not even exist when the
federal special education mandates first took effect in the late
1970s. In fact, many of the AT devices that are available to children
today were not available when the United States Supreme Court issued
its landmark decision in the Rowley case in 1982.
How will school districts, state educational agencies, the United
States Department of Education and the courts interpret the mandates
of the Individuals with Disabilities Act (IDEA), 20 U.S.C. §§ 1400, et
seq., in light of what AT now offers to students with disabilities?
Have these answers now changed under the 1997 amendments to IDEA and
the Department of Education's regulations which were issued on March
12, 1999? Is the Rowley decision still good law and how does it apply
in the AT context? Are there special mandates, under section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794, that apply when a
school-aged student needs AT?
These and other issues which arise in the context of using AT to
benefit a student with a disability in the public school setting are
clearly "at the cutting edge" of the law. As explained below, many of
these issues are addressed, at least in part, in the 1997 amendments
to IDEA and the 1999 regulations. They are also addressed in United
States Department of Education policy letters that have been issued
over the past 10 years.
The focus of this booklet is on IDEA and section 504 as funding
sources or enforcement tools to ensure that children with disabilities
get needed AT. Our intent is to provide the reader with a working
knowledge of the relevant laws, regulations and interpretations of
them as they relate to a school's obligation. Armed with this
knowledge, attorneys and advocates who specialize in special education
law should be well-prepared to advocate for AT.
Since IDEA is a very comprehensive statute, the first section of this
booklet is devoted to a detailed analysis of its legal framework. That
is followed by a similarly comprehensive analysis of how IDEA can be
used as a tool for obtaining AT. We then go through some of the major,
"cutting edge" issues involving maximization of a student's potential
and uses of educational methodology. We will follow a similar approach
with section 504. Finally, we go through remedies available when
parents disagree with a decision made by the school and the remedies
available when attorneys or advocates seek to address more systemic
problems.
II. OVERVIEW OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT
Historically known as Public Law 94-142, IDEA was initially passed in
1975 and was effective on September 1, 1978. We have, therefore,
celebrated the 20th anniversary of its implementation during the
1998-99 school year. Although the statute has been amended several
times during this period, the basic provisions have remained the same.
Nevertheless, there are still significant problems with compliance.
IDEA is a sweeping statute. States are given federal money to help
meet the costs of educating students with disabilities. In turn, they
must agree to comply with the terms of the law. This booklet will
provide a detailed analysis of the basic provisions of IDEA before
going into the standards for obtaining AT. It will then look at
specialty problem areas which also effect the availability of AT for
the student.
On June 4, 1997, President Clinton signed into law a significant
amendment to IDEA (IDEA '97). The law, which passed both houses of
Congress with near unanimous support, followed several years of
debate. Several proposals which emerged during this period suggested
significant limits on the rights of children. However, the final
product, on balance, enhanced the services available to children with
disabilities, strengthened the role of parents and increased the
reliance on AT to ensure that students receive an appropriate
education.
The tenor of the changes is best captured by the Congressional finding
that education of children with disabilities can be made more
effective by: (1) having high expectations and ensuring access to the
general curriculum to the maximum extent possible; (2) strengthening
the role of parents and ensuring that families "have meaningful
opportunities to participate in the education of their children"; (3)
coordinating IDEA requirements with other school improvement efforts
to ensure that students benefit from those efforts and that special
education becomes a service for children rather than a place where
they are sent; (4) providing appropriate special education and related
services and aids and supports in the regular classroom" whenever
appropriate; (5) "supporting high-quality, intensive professional
development for all personnel working" with children; (6) "providing
incentives for whole-school approaches and pre-referral interventions
to reduce the need to label children" to obtain services; and (7)
"focusing resources on teaching and learning while reducing paperwork
and requirements that do not assist in improving educational results."
20 U.S.C. § 1400(c)(5)(emphasis added).
On March 12, 1999, the final federal regulations implementing IDEA '97
were issued. Federal Register, pp. 12406, et seq., 3/12/99. As with
IDEA '97, which required that IEP Teams consider the potential need
for AT for all students with disabilities, the new regulations add
provisions governing the availability of AT to meet students' needs.
The effective date of the regulations is May 11, 1999, but compliance
is not required until the receipt of fiscal 1999 money, or by October
1, 1999, whichever is earlier. Id., p. 12406. The regulations
incorporate changes made by IDEA'97, as well as longstanding
interpretations of IDEA by the U.S. Department of Education's Office
of Special Education Programs (OSEP). Id. As all of the requirements
of IDEA'97 are currently in effect, any of the regulations which
merely restate IDEA 97 must be implemented immediately. Id., p. 12407.
A. Free Appropriate Public Education
1. General Standards
Part B of IDEA guarantees that all students with disabilities aged 3
through 21 have the right to a "free appropriate public education"
(FAPE). 20 U.S.C. §§ 1401(8), 1412(a)(1)(B) and 1419(b)(2). [Part
C, which this article will not discuss, covers children with
disabilities from birth through age two.] But, the statute now allows
a State to exclude from the requirements of IDEA individuals between
the ages of 18 and 21 who are incarcerated in adult correctional
facilities and who had not been classified or had an individualized
education program (IEP) in the last educational placement prior to
being incarcerated. 20 U.S.C. § 1412(a)(1)(B)(ii).
The right to a FAPE also ends when a student graduates with a regular
high school diploma. 34 C.F.R. § 300.122(a)(3)(i). This does not
include students who have received a certificate of attendance or a
certificate of graduation that is not a regular high school diploma.
Id. § 300.122(a)(3)(ii). However, graduation is considered a change of
placement, requiring notice and the right to an impartial hearing. Id.
§ 300.122(a)(3)(iii). It does not require a reevaluation. Id. §
300.534(c)(2).
All services provided under IDEA must be at no cost to the parents or
student. 20 U.S.C. § 1401(8)(A). To be eligible, the student must meet
the definition of one of several enumerated disabilities and, "by
reason thereof," need special education and related services. 20
U.S.C. § 1401(3).
Pursuant to what is referred to as the "child find" requirement,
schools must identify, locate and evaluate all children with
disabilities within their jurisdiction, including those attending
private schools. Id. § 1412(a)(3)(A). The new regulations specifically
mention that this requirement applies to highly mobile children such
as migrant and homeless students and to students suspected of having a
disability who are advancing from grade to grade. 34 C.F.R. §
300.125(a)(2).
IDEA also includes a concept referred to as "zero reject": all
children are entitled to a FAPE "regardless of the severity of their
disabilities." 20 U.S.C. § 1412(a)(3)(A); Timothy W. v. Rochester,
N.H., School Dist., 875 F.2d 954 (1st Cir. 1989), cert. denied, 493
U.S. 983 (1989).
2. The Supreme Court's Decision in Rowley
When Congress enacted IDEA, it did not use an objective measure to
determine whether a student was receiving an appropriate education. In
other words, Congress did not say that all children with disabilities
have the right to services in a special education class or all
students have the right to AT or all students will make one year of
progress each school year. Because every child's needs are different,
these measures are not helpful. Instead, Congress used a very general
and subjective term, "appropriate." In Board of Ed. of the Hendrick
Hudson Sch. Dist. v. Rowley, 458 U.S. 176 (1982), the United States
Supreme Court set forth the standard for determining whether a student
was receiving the appropriate education required by IDEA.
The parents of Amy Rowley, a deaf student with minimal residual
hearing and excellent lip reading skills, sought the services of a
full-time interpreter in her regular classes. Amy had been provided
with an FM trainer, a teacher of the deaf for one hour per day and
speech for three hours per week. Even though Amy was missing about
half of what was being discussed in class, she was very well adjusted,
was performing better than the average child in the class and was
"advancing easily from grade to grade." Id. at 184-185.
Based on these facts, the Supreme Court determined that Amy was
receiving an "appropriate" education without the sign interpreter. In
reaching this opinion, the Court concluded that the obligation to
provide an appropriate education does not mean a school must provide
the "best" education or one designed to maximize a student's
potential. Id. at 199.
However, the program must be based on the student's unique individual
needs and be designed to enable the student to benefit from an
education. In other words, the student must be making progress. Id. at
188, 189. More than a minimal benefit is required for the program to
be appropriate. The IEP must confer "meaningful benefit," which means
that it must provide for "significant learning." In determining how
much benefit is enough, the student's intellectual potential must be
considered. Polk v. Central Susquehanna Intermediate Unit, 853 F.2d
171 (3rd Cir. 1988), cert. denied, 488 U.S. 1030 (1989); See Ridgewood
Board of Ed. v. N.E., 30 Individuals with Disabilities Law Report
(IDELR) 41 (3rd Cir. 1999). In the case of a student being educated in
regular classes, the Supreme Court determined that in most cases, if
the student was advancing from grade to grade with the benefit of
supportive services, the student was receiving an appropriate
education. Rowley at 203.
Noting the importance of the procedural safeguards for developing a
student's program, the Court developed a two-part test to determine if
the program was appropriate. The test comes down to these questions:
First, did the school comply with IDEA's procedures? Second, was the
IEP reasonably calculated to enable the child to benefit from his or
her educational program? In answering this second question, the
Supreme Court cautioned that lower courts should not substitute their
view of appropriate educational methodology for that of the
educational experts. The Court ruled that once a lower court
"determines that the requirements of [IDEA] have been met, questions
of methodology are for resolution by the States. Id. at 206-208.
Not surprisingly, these standards on maximization of potential and
educational methodology set by the Supreme Court have been the subject
of an incredible amount of litigation. They also go to the heart of
determining the availability of AT. A separate section of this booklet
will more fully analyze their impact on obtaining AT from the school
system.
B. Least Restrictive Environment
IDEA requires that all students receive their educational services in
the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5).
Removal from regular education classes is to occur only when the
student cannot be successfully educated in that setting even with
supplemental aids and services. 34 C.F.R. § 300.550(b)(2).
However, in determining the LRE for a student, the program must still
be appropriate to meet the student's individual needs. 34 C.F.R. §
300.550(b)(1). Accordingly, schools must have available a continuum of
alternative placements, ranging from services in regular classes to
separate classes, separate schools and even residential programs. Id.
§ 300.551. Moreover, in determining the student's actual placement, it
should be as close as possible to the child's home and, unless the IEP
calls for some other arrangement, the child should attend the school
he or she would attend if not disabled. Id. § 300.552(c). As will be
noted below, the provision of AT is intended to redefine the
availability of placements in the LRE.
IDEA'97 strengthened the LRE mandate. Prior to this, although the
language in the statute had remained unchanged, several courts
interpreted the LRE provisions to open the door for increased
inclusion of students with more severe disabilities in the regular
education classroom than ever before.
1. Judicial Standard for LRE
Daniel R.R. v. State Board of Education
, 874 F. 2d 1036 (5th Cir. 1989), is one of the leading cases opening
the door to increased inclusion of children with disabilities in
regular education classes. The court noted that Congress created a
strong preference in favor of mainstreaming," i.e., educating the
student in the regular education classroom with supports. Ironically,
the court determined that it was not appropriate to include the child
in that case in full time regular education. However, the court's
analysis of the LRE requirement, especially its interpretation of what
is meant by providing supplementary aids and services in the regular
classroom, has been followed by a number of other courts.
In determining whether it is appropriate to place a student with
disabilities in regular education, the student need not be expected to
learn at the same rate as the other students in the class. In other
words, part of the required supplementary aids and services must be
the modification of the regular educational curriculum for the
student, when needed. The court in Daniel R.R. noted, however, that
the school need not modify the program "beyond recognition." Also, in
looking at whether it is "appropriate" for the child to be in regular
education, in other words, whether the student can benefit
educationally from regular class placement, the school must consider
the broader educational benefit of contact with nondisabled students,
such as opportunities for modeling appropriate behavior and
socialization.
A school may consider the demands on the regular classroom, such as
discipline problems the student may have or the extent of time the
regular education teacher may need to spend with the student. However,
the court stressed that the supplementary services a student may need
to be successful in a regular education placement can include the
assignment of an aide to minimize these concerns. Finally, the court
emphasized that if full time placement in regular education cannot be
achieved satisfactorily, the school must ensure that the child is
educated with nondisabled students to the maximum extent appropriate
during the school day.
In Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993), the court
applied the test established in Daniel R.R. and determined that the
school did not comply with the LRE mandate. It noted that even though
the student had significant behavioral difficulties the last time he
was placed in the regular education environment, these difficulties
were exacerbated by the inadequate level of services provided while he
was placed in that environment. The court found that he could be
successfully educated in the regular education environment with
supplementary aids and services such as:
[T]he assistance of an itinerant instructor with special education
training, special education training for the regular teacher,
modification of some of the academic curriculum to accommodate [the
student's] disabilities, parallel instruction to allow him to learn at
his academic level, and use of a resource room. Id. at 1222.
The court, in Sacramento City School Dist. v. Rachel H., 14 F.3d 1398
(9th Cir. 1994), cert. denied, 512 U.S. 1207 (1994), determined that
the appropriate placement for a child with an IQ of 44 was full-time
regular education with some supplementary aids and services. The court
found that the academic and non-academic benefits weighed in favor of
placing the student in full-time regular education classes. The court
noted that "all of her IEP goals could be implemented in a regular
education classroom with some modification to the curriculum and with
the assistance of a part time aide." Id. at 1401.
2. New LRE Requirements Mandated by IDEA '97
IDEA '97 fosters increased efforts to educate students with
disabilities in the LRE. For example, as noted below, the IEP Team is
to consider whether and how the child can participate in the general
curriculum, and the IEP is to indicate the extent to which the student
will not be with nondisabled peers. 20 U.S.C. § 1414(d)(1)(A)(i) -
(iv). Prior to IDEA '97, the IEP was to indicate the opposite - the
extent the student would be educated with nondisabled peers.
The new regulations emphasize that students with disabilities cannot
be removed from age-appropriate regular classrooms "solely because of
needed modifications in the general curriculum." 34 C.F.R. §
300.552(e). Additionally, a student cannot be required to demonstrate
a specific level of performance before being considered for regular
class placement. However, the strong preference for placement in
regular education does not mean that a student must fail in the
regular education environment before a more restrictive setting may be
considered. 34 C.F.R. Part 300, Appendix (App.) A, Question (Quest.)
1. Placement decisions must be based on the needs of the student and
not on such factors as the classification of the student, availability
of services, "configuration of the service delivery system,
availability of space, or administrative convenience." Id.
States with a funding system that distributes money based on the type
of setting a student is in must ensure that the funding system does
not result in placements which violate the LRE requirement. In other
words, states cannot use funding reimbursement systems to reward more
restrictive placements. States with no such policies must assure the
Secretary of Education that they will revise their funding mechanism
as soon as feasible. 20 U.S.C. § 1412(a)(5)(B).
The law also reduces the reliance on labeling when placing students in
the special education system. IDEA still requires that a student meet
one of several listed conditions and, by reason thereof, require
special education services. Id. §1401(3)(A). However, IDEA '97 gives
states some options to reduce the use of labels when identifying
students who are eligible for services.
First, for students aged three through nine, an additional, more
broad-based category is available. Students with "developmental
delays" in physical, cognitive, communication, social/emotional or
adaptive development who need special education are also eligible for
services. 20 U.S.C. § 1401(3)(B). (This definition had applied to
children aged three through five.) If a state adopts the definition of
developmental delay, it cannot force a school to use that term. 34
C.F.R. § 300.313(a)(2). Second, states are now allowed to provide
services to students with disabilities without labeling them at all,
as long as all eligible students receive the services to which they
are entitled. 20 U.S.C. § 1412(a)(3)(B).
The statute also, for the first time, has a definition for
"supplementary aids and services." These services include aids,
services and other supports, and are to be made available in regular
education classes and "other education-related settings" to enable
children with disabilities to be educated with their nondisabled peers
to the maximum extent appropriate. Id. § 1401(29). It clarifies that
these supports are to be provided in other settings, in addition to
the classroom, such as extracurricular settings. See 34 C.F.R. §
300.306. As discussed below, AT devices and services are included in
this definition. Therefore, it is now even clearer that a student who
needs an augmentative communication device, for example, should be
able to use that device in after-school and other non-academic
functions.
Based on the court cases discussed above, and other factors, an
increasing number of children with more severe disabilities are being
educated in regular classes. Regular education teachers have raised
concerns that they do not have the training or support to meet the
needs of these students. Parents are often concerned because much of
the discussion at IEP Team meetings about the services and supports
that are needed to make the program successful do not end up on the
IEP. IDEA '97 attempts to remedy this situation, at least to some
degree.
The IEP Team must now include at least one regular education teacher
of the child, if the child is or may be participating in "the regular
education environment." 20 U.S.C. § 1414(d)(1)(B). The purpose of the
regular teacher's involvement in the IEP process is, at least in part,
to help determine behavioral strategies, supplemental aids and
services, program modifications and supports for school personnel. Id.
§ 1414(d)(3)(C).
As noted below, any supplemental aids and services, program
modifications and supports for the school personnel must be listed on
the IEP. Id. § 1414(d)(1)(A)(iii). Prior to this amendment, many
parents were told that the IEP was designed to set forth the services
and goals for the student and there was simply no spot on the IEP nor
any obligation to include services to be provided to the teachers.
Many times, because agreed to supports such as in-service training for
the teaching staff were not on the IEP, there were problems with
implementation.
Because the IEP was silent, parents were also left with fewer legal
safeguards. There is a remedy under IDEA for the failure to provide a
service that is listed in the IEP. See 34 C.F.R. § 300.350(c). As will
be discussed later, the regulations implementing section 504 also
provide rights to students with disabilities in the school setting.
Based on the definition of disability under section 504, any student
classified under IDEA is also protected by section 504. The U.S.
Education Department's Office for Civil Rights enforces section 504.
It has held that the failure to implement the services agreed to in an
IEP under IDEA is also a violation of section 504, which it will
enforce. See OSEP Policy Letter to Anonymous, 18 IDELR 1037 (4/6/92).
However, if the supports are not included in the IEP, none of these
protections will readily apply.
C. The Written Individualized Education Program
The written individualized education program (IEP) is the focal point
of IDEA. In Rowley, the United States Supreme Court noted the
importance of parental participation and compliance with proper
procedures in developing a child's IEP. It stated:
It seems to us no exaggeration to say that Congress placed every bit
as much emphasis upon compliance with procedures giving parents and
guardians a large measure of participation at every stage of the
administrative process ... as it did upon the measurement of the
resulting IEP against a substantive standard. We think that the
Congressional emphasis upon full participation of concerned parties
throughout the development of the IEP ... demonstrates the legislative
conviction that adequate compliance with the procedures prescribed
would in most cases assure much if not all of what Congress wished in
the way of substantive content in an IEP. 458 U.S. 176, 204.
In another decision, the Supreme Court called the IEP the "centerpiece
of the [IDEA's] education delivery system." Honig v. Doe, 484 U.S.
305, 311 (1988). It is obvious that the process of developing the IEP
and the resulting document itself are more than mere technicalities.
The Supreme Court quotes underscore the role that Congress envisioned
for the IEP.
1. Parental Participation in IEP Development
From the beginning, IDEA has given the parents a critical role in the
IEP process. Schools must ensure that the parents are present or are
afforded the opportunity to participate, including: (1) "notifying
parents early enough to ensure that they will have an opportunity to
attend"; (2) "scheduling the meeting at a mutually agreed on time and
place"; and (3) indicating "the purpose, time, and location of the
meeting and who will be in attendance." 34 C.F.R. § 300.345(a) and
(b)(emphasis added). The regulations allow a school to proceed with an
IEP Team meeting without the parents in attendance only in the
following circumstance:
A meeting may be conducted without a parent in attendance if the
[school] is unable to convince the parents that they should attend. In
this case the [school] must have a record of its attempts to arrange a
mutually agreed on time and place such as-
(1) Detailed records of telephone calls made or attempted and the
results of those calls;
(2) Copies of correspondence sent to the parents and any responses
received; and
(3) Detailed records of visits made to the parent's home or place of
employment and the results of those visits. Id. § 300.345(d)(emphasis
added).
The school may ensure parental participation by using individual or
conference telephone calls. Id. § 300.345(c). At the meeting, the
school must take whatever action is necessary to ensure that the
parents understand the proceedings, including arranging for an
interpreter for parents with deafness or whose native language is
other than English. Id. § 300.345(e).
When the IDEA regulations were originally developed, the U.S.
Department of Education included Appendix C, which is a series of
questions and answers concerning the IEP. This is the answer to the
question of the role of parents at IEP meetings:
The parents of a child with a disability are expected to be equal
participants along with school personnel, in developing, reviewing,
and revising the IEP for their child. This is an active role in which
the parents (1) provide critical information regarding the strengths
of their child and express their concerns for enhancing the education
of their child; (2) participate in discussions about the child's need
for special education and related services and supplementary aids and
services; and (3) join with the other participants in deciding how the
child will be involved and progress in the general curriculum and
participate in State and district-wide assessments and what services
the agency will provide to the child and in what setting. Id. Part
300, App. A, Quest. 5 (emphasis added).
Notwithstanding these powerful requirements for full parental
participation in the IEP process and the comments from the Supreme
Court in Rowley, many parents found that they were not viewed by the
school as equal participants in the IEP process. Engel, "Law, Culture,
and Children with Disabilities: Educational Rights and the
Construction of Difference," 1991 Duke Law Journal 166 (1991).
IDEA '97 strengthened the parents' role even further. Perhaps only
making explicit what should already have been obvious, schools must
now consider the results of evaluations, the strengths of the child
and the concerns of the parents for enhancing their child's education
when developing the IEP. 20 U.S.C. § 1414(d)(3)(A). Parents must be
given the opportunity to participate in meetings regarding the
identification, evaluation, educational placement and provision of a
FAPE to their children. Id. § 1415(b)(1). Finally, parents are now
members of the IEP Team. Id. § 1414(d)(1)(B). If a different group
within a school makes the decision about whether a student has a
disability or what the student's actual placement will be, the parents
must also be members of that group. Id. § 1414(a)(4)(A) and (f).
The new regulations make it clear, however, that parents do not have
the right to be present every time school officials discuss their
child. The regulations seem to make a distinction between informal
discussions and decision making. Accordingly, a meeting, at which the
parents have the right to be present, is defined to exclude certain
discussions.
A meeting does not include informal or unscheduled conversations
involving [school] personnel and conversations on issues such as
teaching methodology, lesson plans, or coordination of service
provision if those issues are not addressed in the child's IEP. A
meeting also does not include preparatory activities that [school]
personnel engage in to develop a proposal or response to a parent
proposal that will be discussed at a later meeting. 34 C.F.R. §
300.501(b)(2).
The new regulations also make clear that in light of the parents' role
as equal partners with the school, decisions about the IEP should, as
much as possible, be reached by consensus. Taking a vote is not
considered to be an appropriate way to make decisions. Since the
ultimate responsibility to provide a FAPE rests with the school, if
consensus cannot be reached, the school must make a decision, which
the parents have the right to appeal through use of an impartial
hearing or mediation, which are discussed later in this booklet. Id.
Part 300, App. A, Quest. 9.
2. Evaluating the Child
Developing the IEP begins with a comprehensive, individual evaluation.
As one court has noted, the evaluation provides the foundation for the
IEP. If the evaluation is incomplete, the IEP cannot be appropriate.
East Penn School District v. Scott B., 29 IDELR 1058 (E.D.Pa. 1999).
Either the parents or the school staff may initiate an evaluation. In
either event, before the school may evaluate a student for the first
time, it must obtain parental consent to the evaluation. 20 U.S.C. §
1414(a)(1)(C). The evaluation is to assist the IEP Team in determining
whether the student has a disability and, if so, to determine the
educational needs of the child. Id. § 1414(a)(1)(B). Evaluations must
be conducted before the initial provision of services. Id. §
1414(a)(1)(A).
The evaluation is to include a review of existing data, including that
provided by the parent, and current classroom-based assessments, as
well as observations by teachers and related services providers. Id. §
1414(c)(1). The evaluation is to be designed to assist in developing
the IEP. It must assess the relative contribution of cognitive,
behavioral, physical and developmental factors and obtain information
about the student's prospects for participating in the general
curriculum. Id. § 1414(b)(2). The child must be assessed in all areas
of suspected disability to determine the present levels of performance
and the educational needs of the child. Id. §§ 1414(b)(3)(C) and
1414(c)(1)(B)(ii). The evaluation must be sufficiently comprehensive
to identify all of the child's needs, whether or not they are commonly
linked to the child's classification. 34 C.F.R. § 300.532(h).
No single procedure or criterion may be used. 20 U.S.C. §
1414(b)(2)(B). The evaluation materials may not be racially or
culturally discriminatory. They must be administered in the child's
native language or other mode of communication "unless it is clearly
not feasible to do so." Id. § 1414(b)(3)(A).
If the parents disagree with the evaluation obtained by the school,
they may request an independent evaluation at school expense. 34
C.F.R. § 300.502(b). Parents should submit their request prior to
obtaining the evaluation, but this is not required. OSEP Policy Letter
to Hon. J. Fields, 2 Education for the Handicapped Law Report (EHLR)
213:259 (1989). The school is allowed to ask the parents for the
reasons they are disagreeing with the school's evaluation, but cannot
require it. 34 C.F.R. § 300.502(b)(4). In either event, the school
must, without unreasonable delay, either agree to pay for the
independent evaluation or initiate a hearing to show its evaluations
were appropriate. Id. § 300.502(b)(2).
Reevaluations of the student must be conducted at least every three
years, and more frequently if conditions warrant or if the teacher or
parent requests. 20 U.S.C. § 1414(a)(2)(A). Prior to any reevaluation,
the school is now required to seek parental consent. Id. § 1414(c)(3).
The school may proceed with the reevaluation without the parents'
consent if it takes reasonable steps to obtain consent and the parents
do not respond. 34 C.F.R. § 300.505(c).
Reevaluations must also be conducted before a student is declassified.
20 U.S.C. § 1414(c)(5). If the school determines, with input from the
parents, that no additional assessments are needed to determine
whether the child continues to have a disability, it must notify the
parents of the basis for that decision and of the parents' right to
request an assessment. Id. § 1414(c)(1) and (4). Note that the
regulations under section 504, which also cover all students
identified under IDEA, require a reevaluation before any significant
change in placement. 34 C.F.R. § 104.35(d).
3. IEP Team
IDEA requires that the IEP be developed at meeting with a group of
people, including the parents. Id. § 300.344. The IEP Team must now be
composed of the following members:
(i) the parents of a child with a disability;
(ii) at least one regular education teacher of such child (if the
child is, or may be, participating in the regular education
environment);
(iii) at least one special education teacher, or where appropriate, at
least one special education provider [such as a speech pathologist] of
such child;
(iv) a representative of the [school] who-
(I) is qualified to provide, or supervise the provision of, specially
designed instruction to meet the unique needs of children with
disabilities;
(II) is knowledgeable about the general curriculum; and
(III) is knowledgeable about the availability of resources of the
local educational agency;
(v) an individual who can interpret the instructional implications of
evaluation results, who may be a member of the team described in
clauses (ii) through (vi);
(vi) at the discretion of the parent or the agency, other individuals
who have knowledge or special expertise regarding the child, including
related services personnel as appropriate; and
(vii) whenever appropriate, the child with a disability. 20 U.S.C. §
1414(d)(1)(B).
As noted above, the purpose of the regular teacher's involvement in
the IEP process is, at least in part, to help determine behavioral
strategies, supplemental aids and services, program modifications and
supports for school personnel. Id. § 1414(d)(3)(C). Depending on the
student's needs and the purpose of the meeting, the regular education
teacher is not required to attend the entire meeting or be at every
single IEP Team meeting.
For example, if the purpose of the meeting is to discuss the physical
therapy needs of the student, the regular education teacher may not
need to attend if the teacher will not be responsible for implementing
that portion of the student's IEP. 34 C.F.R. Part 300, App. A, Quest.
24. The school and parents are encouraged to reach agreement, in
advance, concerning the regular education teacher's involvement. Id.
However, it is anticipated that it will be extremely rare for the
regular education teacher not to be in attendance. Federal Register,
p. 12583, 3/12/99.
The comments provide extensive guidance regarding which teacher should
attend the meeting. For students with more than one regular education
teacher, the school can determine which teacher attends, taking into
account the best interests of the student. 34 C.F.R. Part 300, App. A,
Quest. 26. The teacher:
[S]hould be a teacher who is, or may be responsible for implementing a
portion of the IEP so that the teacher can participate in discussions
about how best to teach the child. Id.(emphasis added).
The school is strongly encouraged to obtain input from any teachers
who will not be attending the meeting. Id.
The new regulations also clarify that the school representative on the
IEP Team must be someone with the authority to commit school resources
and who can ensure that the services set out in the IEP will actually
be provided. Id., Quest. 22.
4. IEP Content
The IEP is a written document, setting out in detail the nature of the
student's educational needs, the services to be provided and specific
goals for the student. The IEP must list the student's present levels
of performance, including how the child's disability affects the
child's involvement and progress in the general curriculum. The IEP
must also list annual goals and short-term objectives or benchmarks.
They must be measurable and relate to meeting each of the child's
educational needs that result from the disability, including those
which will enable the child to be involved in and progress in the
general curriculum. 20 U.S.C. § 1414(d)(1)(A)(i) and (ii).
The IEP must include all special education and related services and
supplementary aids and services to be provided to the child, or on
behalf of the child. It must also list all program modifications, and
supports for school personnel which will help the child to: (1) attain
the annual goals; (2) participate and progress in the general
curriculum, if appropriate; (3) be educated with both disabled and
nondisabled peers; and (4) participate in extracurricular and
nonacademic activities with both disabled and nondisabled peers. Id. §
1414(d)(1)(A)(iii). The projected date for initiating all services and
modifications, as well as their anticipated frequency, location and
duration must be specified. Id. § 1414(d)(1)(A)(vi).
The IEP must also include provisions to assist students in making the
transition from school to adult living. These are called transition
services. Beginning at age 14, the IEP must include the transition
service needs related to the child's course of study under each of the
applicable sections of the IEP, such as "participation in
advanced-placement courses or a vocational education program." Id. §
1414(d)(1)(A)(vii)(I). Beginning at 16, or younger if appropriate,
actual transition services are to begin, including identifying the
responsibilities of agencies other than the schools to provide
services. The IEP must list all such services. Id. §
1414(d)(1)(A)(vii)(II). At least one year before a student reaches the
age of majority under state law, the IEP must include a statement that
the student has been informed of any rights that would normally be
exercised by the parents that will transfer to the student at the age
of majority. Id. § 1414(d)(1)(A)(vii)(III).
The IEP must also list the extent the student will not participate
with nondisabled students in academic and nonacademic activities. Id.
§ 1414(d)(1)(A)(iv). If the student is to participate in state or
school district-wide assessments of student achievement, the IEP must
specify any modifications in the administration of those tests to be
given to the student. Modifications could include such things as extra
time, having the test read, recording answers in an alternative format
(dictating into a tape recorder, to another person or using a
computer), use of a calculator, use of an electronic spell checker or
other appropriate modifications, based on the needs of the student and
subject area being tested. If the student will not be participating,
the IEP must give the basis for that decision, as well as indicate how
the student will be assessed. Id. § 1414(d)(1)(A)(v).
There must be a statement of how the child's progress toward the
annual goals will be measured; how the parents will be informed about
the child's progress; and the extent to which the child's progress to
date is sufficient to enable the child to meet the goals by the end of
the year. These progress reports must be at least as frequent as
progress reports parents of nondisabled students receive. Id. §
1414(d)(1)(A)(viii). Therefore, if a school sends out report cards
every 10 weeks, the parents should be notified of their child's
progress at least that often. If a school sends out notices when
regular education students are in danger of failing at five-week
intervals, they could also send out five-week notices to parents of
students with disabilities when the student is not performing as
expected.
The comments indicate that a written report will normally be
sufficient, but there may be instances where a meeting may be more
effective. Generally, these reports "are not expected to be lengthy or
burdensome." Federal Register, p. 12594, 3/12/99.
The IEP must be reviewed at least annually to determine whether the
annual goals are being achieved. It must be revised as necessary. 20
U.S.C. § 1414(d)(4)(A). Therefore, if problems arise during the year
or if there is any other need to meet to review the student's program,
the parents or school may request a meeting before the year is up.
Federal Register, p. 12592, 3/12/99. In other words, the parents do
not have to wait for the annual review to request a meeting with the
IEP Team.
When developing the IEP, the Team must consider any behavioral
interventions needed for students with behavioral needs; the effect of
limited English proficiency on a student's special education needs;
the use of Braille for blind and visually impaired students; the use
of and instruction in the child's language and mode of communication
for deaf or hard of hearing students; and, for all students, whether
the child requires AT. 20 U.S.C. § 1414(d)(3)(B); 34 C.F.R. §
300.346(a)(2).
A copy of the IEP must be accessible to each regular or special
education teacher, as well as any others who are responsible for
implementing the IEP. Id. § 300.342(b)(2). Additionally, everyone
providing services must be informed of their specific responsibilities
as well as the specific accommodations, modifications and supports for
the student. Id. § 300.342(b)(3). The parents must also be given a
copy of the IEP, at no charge. Id. at 300.345(f).
D. Transition from Special Education to Adult Life
As noted above, schools must begin planning for a student's transition
to the adult world beginning at age 14, when curricular options within
the school are considered. No later than age 16, a full-blown
transition services plan must be included in the IEP.
Transition planning was not part of IDEA when it was first enacted. It
was not added until 1990. Prior to adding the transition planning
requirements, however, there was strong sentiment that students were
not being adequately prepared for the adult world. Accordingly,
transition planning requires that schools develop a long-range plan
for students to prepare them for post-school life, begin to make
connections with adult service providers while students are still in
school and look to others, such as the vocational rehabilitation (VR)
system, to provide services.
1. Transition Services
Transition services are defined as a coordinated set of activities for
a student, designed within an outcome-oriented process, that promotes
movement from school to post-school activities. The areas of adult
living to be considered include preparation for postsecondary
education, vocational training, integrated employment (including
supported employment), continuing and adult education, adult services,
independent living, and community participation. IDEA '97 added
related services to the types of services to be provided, thereby
removing any doubt that transition services may include AT. Id. §
1401(30)(C). Therefore, transition services may be either special
education or related services. 34 C.F.R. § 300.29(b).
Services are to be based on the individual student's needs, taking
into account the student's preferences and interests. The specific
services to be offered include: (1) instruction, (2) related services,
(3) community experiences, (4) development of employment and other
post-school adult living objectives, and (5) if appropriate,
acquisition of daily living skills and a functional vocational
evaluation. 20 U.S.C. § 1401(30); 34 C.F.R. § 300.29(a). The list of
activities is not intended to be exhaustive. Federal Register, p.
12553, 3/12/99. One court noted that specially designed instruction in
driver's education, self-advocacy, and independent living skills such
as cooking and cleaning were appropriate transition services for a
student with an orthopedic impairment who wanted to attend college.
Yankton School Dist. v. Schramm, 93 F.3d 1369,1374 (8th Cir. 1996).
The 1990 amendments to IDEA added rehabilitation counseling services
to the definition of related services. 20 U.S.C. § 1401(22).
Rehabilitation counseling services are to be provided by qualified
personnel in individual or group sessions. They are to focus
specifically on career development, employment preparation, and
achieving independence and integration in the workplace and community.
They include vocational rehabilitation (VR) services provided to
students with disabilities by VR programs funded under the
Rehabilitation Act. 34 C.F.R. § 300.24(b)(11).
2. Developing a Transition Services IEP
If an IEP meeting is to consider transition services for a student,
the school must invite the student and a representative of any other
agency that is likely to be responsible for providing or paying for
transition services. If the student does not attend, the school must
take other steps to ensure that the student's preferences and
interests are considered. If an invited representative does not
attend, the school must take other steps to obtain the participation
of that agency in the planning of any transition services. Id. §
300.344(b).
As noted above, beginning at age 14, the IEP must include the
transition service needs related to the child's course of study under
each of the applicable sections of the IEP, such as "participation in
advanced-placement courses or a vocational education program." 20
U.S.C. § 1414(d)(1)(A)(vii)(I). Beginning at 16, or younger if
appropriate, actual transition services are to begin. The IEP must
list all needed services under each area of transition, including
responsibilities of other agencies to provide services and any
linkages to be developed with other agencies. Id. §
1414(d)(1)(A)(vii)(II); 34 C.F.R. § 300.347(b).
As with other parts of the IEP, the transition planning requirements
are much more than mere technicalities. One court recently found that
a school which only provided for the vocational needs of the student,
failed to meet its transition obligations to him. It did not develop a
plan to help the student "survive an adult life." In other words, the
plan was not functional. The court noted the school: (1) did not
identify any goals for the student for after he left school; (2) did
not perform any transition evaluations, other than a vocational
evaluation; (3) did not provide "the full panoply of services that
transition planning envisions" to prepare him for life outside of
school in such areas as personal needs, getting around the community
and recreation; and (4) failed to meet his individual, unique needs
and instead placed him in an existing generic program with minor
adaptations. East Penn School District v. Scot B., 29 IDELR 1058
(E.D.Pa. 1999).
3. Special Education and Vocational Rehabilitation Services
Many state vocational rehabilitation (VR) agencies are unwilling to
get involved with students until their right to an appropriate special
education is over, citing VR rules that limit VR services when there
is another possible source of funding for those services. This is
referred to as the "comparable benefits" requirement. Where AT is
involved, this can be a significant problem. Schools do not normally
consider AT devices purchased to ensure an appropriate education to be
the student's property. See Federal Register, p. 12540, 3/12/99. If
the AT device will also be essential for college or employment,
significant delays will result if the VR process does not begin until
after a student leaves school. It also makes little fiscal sense for a
school to provide AT, merely to be surrendered upon graduation with
the student then seeking another device from the VR agency. What is
the VR agency's responsibility under these circumstances?
a. Obligations Under IDEA
It is clear that when transition planning was added to IDEA in 1990,
VR agencies, and other public agencies with responsibilities for
students, were intended to be involved both in the planning process
with schools and in the actual provision of services. The legislative
history suggests that the statement of needed transition services
should include a commitment by any participating agency to meet any
financial responsibility it may have in the provision of transition
services. See House Report No. 101-544, p. 11, 1990 U.S. Code Cong. &
Admin. News, pp. 1733-34. A "participating agency" means a state or
local agency, other than the school, that is financially and legally
responsible for providing transition services to the student. 34
C.F.R. § 300.340(b). If a participating agency fails to provide
agreed-upon transition services contained in the IEP, the school must
initiate a meeting as soon as possible to identify alternative
strategies to meet the transition objectives and, if necessary, revise
the IEP. Id. § 300.348(a).
VR agencies are specifically referred to in the IDEA regulations. As
noted above, rehabilitation counseling includes services provided by
the VR agency. Id. § 300.24(b)(11). The definition of AT services
includes coordinating other services with AT devices "such as those
associated with existing education and rehabilitation plans and
programs." 20 U.S.C. § 1401(2)(D)(emphasis added). The regulations
also note that nothing in the transition services requirements
relieves any participating agency, "including a State [VR] agency," of
the responsibility to provide or pay for any transition service that
the agency would otherwise provide. 34 C.F.R. § 300.348(b).
IDEA '97 strengthened the obligations of other public agencies to
provide services to students while they are still in school. All
states must now have interagency agreements to ensure that all public
agencies that are responsible for providing services that are also
considered special education services, fulfill their responsibilities.
The financial responsibility of these public agencies must precede
that of the school. If an agency does not fulfill its obligation, the
school must provide the needed services, but has the right to seek
reimbursement from the public agency. The agreement must also specify
how the various agencies will cooperate to ensure the timely and
appropriate delivery of services to the students. 20 U.S.C. §
1412(a)(12).
b. Obligations Under the VR Laws
During the same time that changes were being made to IDEA, there were
also changes being made to the VR laws concerning the role of VR
agencies in the transition process. Based on 1992 changes to the VR
laws, the VR regulations require the state VR Plan to develop policies
to facilitate the transition from the special education system to the
VR system. The VR regulations contemplate the development of an
individualized plan for employment (IPE) by the VR system, for
students eligible for VR services, before the student leaves the
school setting. 34 C.F.R. § 361.22(a)(1).
But, the legislative history to the 1992 VR laws, the Rehabilitation
Act Amendments of 1992, Pub. L. 102-569, 106 Stat. 4346, states that
schools remain responsible for ensuring a free appropriate public
education to students during the transition years. S. Rep. No. 357,
102d Cong., 2d. Sess., 33 (1992), as quoted at 34 C.F.R. § 361.22,
Note. This seems to contradict the requirements of IDEA, discussed
above. However, the law's intent is to ensure that "there is no gap in
services between the education system and the vocational
rehabilitation system." Id.
The laws governing VR agencies were again amended in 1998. Among other
changes, the law more clearly identifies the responsibilities of the
VR system to special education students, and, hopefully, removes the
apparent contradiction. The State Plan for VR services must now
include procedures to facilitate the transition of students with
disabilities from the special education system to the VR system,
including: (1) consultation and assistance to the educational agencies
in preparing the transition plan in the IEP; and (2) defining the
relative roles and financial responsibilities of the special education
and VR systems to provide services. 29 U.S.C. § 721(a)(11)(D).
Subject to the State VR Plan, the VR agency is required to provide
services to students to facilitate achievement of the employment
outcome as spelled out in the IPE. Congressional Record-House, H6693,
July 29, 1998. "However, State [VR] agencies should not interpret the
'interagency agreement' provisions as shifting the obligation for
paying for specific transition services normally provided by those
agencies to local school districts. State [VR] agencies still have
that responsibility." Id.
c. Reading IDEA and the VR Laws Together
What is the effect of all of these requirements for the student who
needs an AT device? First, the VR agency may and should participate in
the transition planning meetings with the school. Second, if the
graduating student clearly will need the AT device for educational,
training or employment purposes, a reasonable approach would be to
have the VR agency purchase the device in the first instance or
purchase it from the school when the student graduates. The need for
the device would continue to be reflected in the IEP, with reference
to the VR agency as payer (or purchaser upon transfer). The AT device
would also appear in the individualized plan for employment (IPE),
which must be developed by the VR agency before the child finishes
school.
Neither IDEA nor the federal VR laws prohibit the VR agency from
purchasing the AT outright for the student while still enrolled in
high school or from purchasing it from the school. The IDEA
regulations envision other agencies providing services to students in
transition, including VR agencies. 34 C.F.R. § 300.348. The VR
regulations require that the State Plan specify the respective
financial responsibility of the various state agencies serving the
student. Id. § 361.22(a)(2)(v).
E. Private School Placements
As noted above, as part of the continuum of services, schools must
have available the option of placing students in special (or private)
schools. Id. § 300.551. When schools place a student in a private
school to meet their obligation to provide a FAPE, the services are to
be at no cost to the family and an IEP must be developed. Id. §§
300.349 and 300.401.
What are a school's obligations when parents place students in private
or parochial schools? Must schools pay for the tuition costs? Must the
school provide services to all students enrolled in private schools?
May a school refuse to provide services on the site of a parochial
school because of the First Amendment? Are there circumstances where
parents will be reimbursed for private school costs?
1. Services to Students in Private and Parochial Schools
If the school offers a FAPE to the student but the parents decide to
enroll the student in a private or parochial school, the school is not
responsible for the tuition. Id. § 300.403(a). The next question is:
may a school provide services on the site of a parochial school, which
by definition is run by a religious entity, or does that violate the
Establishment Clause of the First Amendment, which prohibits
government support of religion? IDEA '97 states that special education
and related services (which can, of course, include AT) may be
provided on the site of a parochial school "to the extent consistent
with law. 20 U.S.C. § 1412(a)(10)(A)(i)(II). What is "consistent with
law?"
The leading case in this field is Zobrest v. Catalina Foothills School
District, 509 U.S. 1 (1993). In that case, the Supreme Court held that
providing a sign language interpreter to a deaf student attending a
parochial high school did not violate the Establishment Clause.
Relying on the Supreme Court's analysis, the United States Court of
Appeals for the Second Circuit ruled that the Establishment Clause did
not prohibit the provision of a teacher aide and special education
"consultant" teacher on the grounds of a parochial school. Russman v.
Sobol, 85 F.3d 1050 (2d Cir. 1996), vacated on other grounds, ___ U.S.
___, 117 S.Ct. 2502 (1997).
IDEA '97 placed limits on the amount schools must spend on providing
services to students enrolled by their parents in private schools. It
provides that a school must spend a "proportionate share" of its IDEA
dollars for students enrolled in private schools. 20 U.S.C. §
1412(a)(10)(A)(i)(I). Following the passage of IDEA '97, the Supreme
Court ordered that the Second Circuit (and several other Circuits)
reconsider their decisions in the light of this language. See Board of
Educ. v. Russman, ___ U.S. ___, 117 S.Ct. 2502 (1997).
In 1998, the Second Circuit reaffirmed its position that the
Establishment Clause is not violated when services are provided on a
parochial school site. However, the court determined that the IDEA '97
language means that a school is not required to provide services on
site. Moreover, the school is only required to spend a proportionate
share of its federal dollars on services to students enrolled in
private schools. Schools need not spend their own, non-federal, funds
on these students. Russman By Russman v. Mills, 150 F.3d 219 (2d Cir.
1998). The other courts to address this question have also ruled
similarly. See, e.g., Peter v. Wedl, 155 F.3d 992 (8th Cir. 1998);
Foley v. Special School Dist. of St. Louis County, 153 F.3d 863 (8th
Cir. 1998); Fowler v. Unified Sch. Dist. No. 259, 128 F.3d 1431 (10th
Cir. 1997); K.R. v. Anderson Community Sch. Corp., 125 F.3d 1017 (7th
Cir. 1997); Cefalu v. East Baton Rouge Parish School Bd., 117 F.3d 231
(5th Cir. 1997).
The new regulations make it clear that students voluntarily enrolled
in private schools by their parents have no individual right to
services. The schools must meet with private school representatives to
determine the number and needs of private school children and how
those needs will be met. Instead of an IEP, a services plan will be
developed by the IEP Team for those students who will receive
services. 34 C.F.R. § 300.454. If the parents wish to appeal the
decision of the IEP Team, they cannot use the impartial hearing
process, which will be discussed below. They must use the complaint
resolution procedure (CRP), which is also discussed below. Id. §
300.457.
The regulations reaffirm that services may be provided on-site "to the
extent consistent with law." Id. § 300.456(a). The comments note that
providing services on-site is preferred, "to cause the least
disruption in the children's education." Federal Register, p. 12604,
3/12/99. They also note there must be flexibility to take into account
local conditions. Id. If services are not provided on-site, the school
district must provide transportation to and from the site, if needed
for the student to benefit from or participate in the service. 34
C.F.R. § 300.456(b).
The comments also make clear that states and local school districts
"are not prohibited from providing services to private school children
with disabilities beyond those required by this part, consistent with
State law or local policy." Federal Register, p. 12410, 3/12/99,
regarding 34 C.F.R. § 300.453(d). Therefore, a state or school could
choose to mandate services to all students in these schools.
For example, New York creates a right to a FAPE for all students
attending private or parochial schools. N.Y. Educ. Law § 3602-c.
Services may be provided on site, at a neutral site or at a school
site, depending on what is appropriate. See N.Y. State Education
Department Memo from Kathy Ahearn, Counsel and Deputy Commissioner for
Legal Affairs (September 1998). Of course, it is virtually impossible
to envision any AT which could be appropriately provided anywhere
other than on site. Kansas law also provides services for students
with disabilities attending private schools. Kan. Stat. Ann. §
72-5393; Fowler v. Unified Sch. Dist. No. 259, 128 F.3d 1431, 1439
(10th Cir. 1997). In John T. v. Marion Ind. Sch. Dist., 30 IDELR 262
(8th Cir. 1999), the court held that Iowa law required a school
district to provide a full-time aide to a student attending a
parochial school.
2. Unilateral Private School Placements
What if a parent contends that the school did not offer a FAPE? As
will be noted below, in such circumstances, the parents have the right
to request an impartial hearing, but the child is to remain in the
current educational setting pending completion of this process. Must
the child remain in what the parents maintain is an inappropriate
setting? If the parents can afford to move the student to a different
setting may they obtain reimbursement?
Since 1985, when the Supreme Court decided Burlington Sch. Comm. v.
Department of Educ., 471 U.S. 359 (1985), in certain circumstances,
parents are able to obtain reimbursement for unilateral placements in
private schools when the school did not offer a FAPE. The Court set up
a three-prong test. The parents must establish: (1) that the school
did not offer an appropriate placement; (2) that the program selected
by the parents is appropriate; and (3) that equity factors favor
reimbursement. In Florence County School Dist. Four v. Carter, 510
U.S. 7 (1993), the Supreme Court held that if the other prongs of the
test were met, the parents could obtain reimbursement even if the
program was not approved by the state's educational agency.
IDEA '97 codifies, with some modifications, these decisions. Parents
may obtain reimbursement from a court or hearing officer if the school
did not offer a FAPE in a timely manner and the private placement
selected by the parents is appropriate. The private placement can be
appropriate even if it does not meet state standards applicable to
school districts. 34 C.F.R. § 300.403(c); Federal Register, p. 12602,
3/12/99.
However, the parents must first inform the school, at either the IEP
meeting or by letter, of their concerns with the school's proposal,
that they are rejecting the school's proposed placement and that they
intend to place their child in a private school at school district
expense. The parents' request for reimbursement may also be denied if
they refuse to make their child available for an evaluation by the
school or if a court finds that they otherwise acted unreasonably.
Prior notice is not required if the parents are illiterate, if
compliance would endanger the child, if the school prevented the
parents from providing the notice or if the school did not notify the
parents of their rights. 20 U.S.C. § 1412(a)(10)(C).
F. Due Process Protections
1. General Due Process Requirements
As noted in the IEP section above, the Supreme Court emphasized the
importance of the procedures set up by IDEA. Indeed, the rights given
to parents of students with disabilities by IDEA are significantly
greater than the rights given parents of regular education students.
Parents of students with disabilities are co-partners with school
personnel in determining the goals and services to be provided. If
they disagree with the decision, they have the right to a formal,
impartial review of the school's recommendations. These rights, which
are referred to as "procedural safeguards" in IDEA, come from the Due
Process Clause of the U.S. Constitution.
Schools must regularly and fully inform parents of their due process
rights. Id. § 1415(b)(3), (c) and (d)(2). Prior to taking any action
regarding the student, they must also notify the parents of the basis
for their action. This notice must include: (1) a description of the
action proposed or refused; (2) an explanation of why the school made
the decision; (3) a description of any other options considered and an
explanation of why they were rejected; (4) a description of the
records, reports or evaluations used as a basis for the decision; and
(5) a description of any other factors that are relevant to the
decision. Id. § 1415(c).
All parents have the right to review copies of their children's
educational records and to request that false, misleading or
personally invasive records be amended or removed pursuant to the
Family Educational Rights and Privacy Act. Id. § 1232g. The parents of
children with disabilities also have the right to a copy of the
evaluations conducted by the school. Id. § 1414(b)(4)(B). Finally,
when the records relating to a student's special education are no
longer needed, the parents have the right to have them destroyed. 34
C.F.R. § 300.573.
Under IDEA, parents have the right to request an impartial hearing to
appeal all actions taken by a school. 20 U.S.C. § 1415(b)(6). At the
hearing, the parents have the right to be represented by an attorney
or other person with specialized training, to compel the attendance of
witnesses, to present evidence and to cross-examine witnesses. Id. §
1415(f). The parents have the right to a written, or, at their option,
electronic, verbatim transcript of the hearing. 34 C.F.R. §
300.509(a)(4). Impartial hearings have become extremely technical and
complicated. Therefore, it is highly advisable for parents to contact
an attorney or trained advocate if they believe it is necessary to
request a hearing.
The decision of the hearing officer is final, unless there is an
appeal. 20 U.S.C. § 1415(i)(1)(B). States have the option to create a
second, state level of administrative review. In that case either the
parents or school have the right to file an appeal to the state. Id. §
1415(g). Following the hearing decision or state level decision, if
applicable, either the parents or the school have the right to appeal
to state or federal court. Id. § 1415(i)(2).
2. Status Quo: The Right to Retain Existing Services Pending Appeal
The child remains in the current educational placement during all of
the above proceedings, unless the parent and school or state agree
otherwise. Id. § 1415(j); 34 C.F.R. § 300.514(a). This is referred to
as "pendency," "stay put," or "status quo." Status quo applies to the
services listed in the IEP as well as "the setting in which the IEP is
implemented, such as a regular" or self-contained classroom. Federal
Register, p. 12616, 3/12/99. However, a school may change the location
of a child's classroom within the school district. Id.; Concerned
Parents v. N.Y.C. Bd. of Ed., 629 F.2d 751 (2nd Cir. 1980). Status quo
is also not intended to require that a student remain in the same
grade pending an appeal. Federal Register, p. 12616, 3/12/99. Status
quo also applies to children moving from one school to another within
the state. OSEP Policy Letter to L. Rieser, EHLR 211:403 (7/17/86).
However, status quo does not apply when a student moves from one state
to another. Michael C. v. Radnor Township School District, 29 IDELR
958 (E.D.Pa. 1999); OSEP Policy Memorandum 96-5, 24 IDELR 320
(12/6/95).
What if a parent is only challenging part of the IEP? Let's say the
parent and school agree that the student should have a computer in
school to work on written assignments, but disagree on whether the
student may have the computer for use at home on homework. May the
school refuse to provide the computer at school, while the hearing on
the use of the computer at home proceeds? The new regulations clarify
that a school cannot use a parent's refusal to consent to one service
or benefit as a basis to deny another service or benefit. 34 C.F.R. §
300.505(e). Therefore, the school should implement agreed upon
services, such as the computer for use at school, pending resolution
of a disagreement about other services. See Federal Register, p.
12610, 3/12/99.
What if the parents prevail at a state level impartial hearing or at
the state review office and the school is ordered to provide the
computer for use in the home? If the school appeals to court, may it
refuse to implement the state's decision based on the status quo
requirements? Again, the new regulations clarify that if the state
level hearing or review officer rules in the parents' favor, that
constitutes an agreement between the parents and state for purposes of
status quo. Id. § 300.514(c). Accordingly, the school would have to
provide the computer during any subsequent appeals.
Status quo can be a real "two-edged" sword for parents. If the parents
like the services or program and the school seeks to make a change,
the parents can maintain the student in the program while the review
procedures take place. If the parents are seeking a change, say to add
AT, and the school refuses, then the student's program would not
change while the review proceeds. As noted above, however, the parents
can be reimbursed if they change the student's program unilaterally
and they meet the criteria set up by the Supreme Court in Burlington
and Carter.
3. Compensatory Education
What if the school fails to implement the IEP or fails to provide a
FAPE in some other way, but the parents are unable to provide the
services at their own expense? In such a case, the right to get
reimbursed does not help. Is there any other remedy available, if, for
example, the school does not obtain the AT device called for in the
IEP? As noted above, the right to a FAPE ends at the age of 21. Can a
student receive special education services after the age of 21 as a
remedy to compensate for the failure to provide services earlier?
In Burr v. Ambach, 863 F.2d 1071 (2nd Cir. 1988), the student, who was
20 at the time of the decision, was without any educational programing
for almost two years because of unnecessary delays in the impartial
hearing and review process. The court noted that even though IDEA
limited the right to a FAPE until the age of 21, there needed to be
some way to provide a remedy for the clear deprivation of his right to
a FAPE. Accordingly, the court approved the provision of special
education services beyond his 21st birthday. Another form of
compensatory education can be to provide special education services
during the summer, even though the student might not have been
entitled to summer services, instead of waiting until after the
student reached the age of 21. See Johnson v. Bismark Pub. Sch. Dist.,
949 F.2d 1000 (8th Cir. 1991).
In M.C. on Behalf of J.C. v. Central Regional School, 81 F.3d 389 (3rd
Cir. 1996), the court rejected a requirement that there be a "gross"
violation to the right to a FAPE, as occurred in Burr. The court held
that the right to compensatory education is based simply on whether
the IEP is appropriate. The right to compensatory education begins
when the school knows or should know that the student is not receiving
a FAPE. Id. at 396; See Perry A. Zirkel, The Remedy of Compensatory
Education under the IDEA, 95 Ed. Law Rep. 483 (1995).
Applying the standards articulated in the M.C. case, a school was
ordered to provide two years of compensatory education because it
failed to provide appropriate AT devices and services to a student.
The court noted that the school "dragged its feet" in acquiring the AT
device, a laptop computer with a word prediction program, and in
training the staff so the student "could realize some benefit from the
technology." East Penn School District v. Scott B., 29 IDELR 1058,
1063 (E.D.Pa. 1999).
4. Mediation
The statute now mandates that states and schools have available a
mediation process to resolve any and all complaints, at least whenever
an impartial hearing is requested. Mediation is to be voluntary and
cannot be used to deny or delay a parent's right to an impartial
hearing. But, if a parent does not choose to use mediation, a school
or state may establish a procedure requiring the parent to meet with a
specified disinterested party to explain the benefits of mediation. 20
U.S.C. § 1415(e).
The state shall bear the costs of mediation. The mediators are to be
impartial, trained in mediation techniques and knowledgeable of
special education law. All discussions during mediation sessions are
to be confidential. Id.
5. Attorneys' Fees are Available When the Student Wins an Appeal
When parents request an impartial hearing, they are entitled to
reasonable attorneys' fees if they ultimately prevail at the hearing,
on review, in court, or through settlement. The fees are to based on
the prevailing rates in the community. The parents' fees may be
reduced if they reject an offer of settlement made by the school, in
writing, and received at least 10 days before the hearing, if the
relief they obtain is not more favorable than the school's offer of
settlement. 20 U.S.C. § 1415(i)(3).
IDEA '97 places some new restrictions on the availability of
attorneys' fees. With a request for an impartial hearing there must be
a statement listing the student's name, address and school attended,
as well as a description of the problem giving rise to the hearing
request and a proposed resolution of the problem to the extent known
and available. Id. § 1415(b)(7). If this statement was not submitted,
attorneys' fees can be limited. Id. § 1415(i)(3)(F)(iv).
Attorneys' fees are also not available for IEP Team meetings unless
the meeting has been convened as a result of an impartial hearing or
court decision. However, states may authorize attorneys' fees for
participation in pre-hearing mediation. Id. § 1415(i)(3)(D)(ii).
G. Discipline of Students with Disabilities
1. Introduction
To what extent do the rights of students with disabilities differ from
nondisabled students in the disciplinary process? As noted above, the
program for a student with a disability is supposed to be developed by
the IEP Team and if the parents request an impartial hearing, the
student is supposed to remain in the current placement pending review.
How do these rights come into play when a student is suspended by the
school? Does it make a difference if the suspension is for a long or
short period?
In Honig v. Doe, 484 U.S. 305 (1988), the United States Supreme Court
provided some answers to these questions. The Court held that
suspensions for greater than 10 days constituted a "change in
placement." Accordingly, the IEP Team would have to be involved in
long term suspensions. Moreover, if the parents requested an impartial
hearing to appeal any decisions from the IEP Team, the status quo
provisions would apply and the student would have to be returned to
his or her prior placement while the hearing proceeded. The Court did
allow for an exception for dangerous students. Schools could get a
court order to change a dangerous student's placement during the
review process.
2. IDEA '97
IDEA '97 makes several changes in the procedures for disciplining
students with disabilities. While this booklet will not go into depth
on this subject, a few brief comments can be made.
States must determine if there are discrepancies between the long term
suspension or expulsion rates of students with disabilities across
schools in the state or when compared to nondisabled students within
schools. If so, the state must review and, if necessary, order the
revision of policies in the school relating to developing and
implementing IEPs, use of behavioral interventions and procedural
safeguards. 20 U.S.C. § 1412(a)(22).
The statute also codifies Honig v. Doe, with some twists. Because
Honig v. Doe was an interpretation of IDEA, now that IDEA has been
amended these new procedures must be followed. The U.S. Department of
Education has stated, however, that in addition to using the hearing
officer process discussed below to change a student's placement,
schools may still go to court to change the status quo of a dangerous
student, as set out in Honig v. Doe. OSEP Memorandum 97-7, 26 IDELR
981 (9/19/97).
Regarding short term suspensions, for less than 10 consecutive school
days, the new regulations make it clear that these suspensions are not
a change in placement. 34 C.F.R. § 300.520(a)(1)(i). Therefore, a
student need not go before the IEP Team for a short term suspension.
During the course of a short term suspension, and up to the time a
student has been removed for 10 days during the school year, the
school does not have to provide educational services to the student,
unless state law requires that nondisabled students receive
educational services during that time. Once a student has been
suspended for a total of 10 days, however, educational services must
be provided during any subsequent short term suspensions. Id. §
300.520(a)(1)(ii).
If a student is subjected to a series of short term suspensions, this
may be considered a "change in placement," requiring the involvement
of the IEP Team, as discussed below. The new regulations indicate that
a change in placement occurs if the short term suspensions constitute
a pattern because they cumulate to more than 10 school days and
because of other factors such as their length and proximity to one
another. Id. § 300.519(b).
Before a student may be suspended for more than 10 consecutive school
days, there must be an IEP Team meeting to determine whether or not
the student's misconduct is a "manifestation" of the disability. 20
U.S.C. § 1415)k)(4)(A). If there is a connection to the disability,
and drugs or weapons were involved or the student's current placement
is substantially likely to result in injury to the student or others,
the student may be placed in an interim alternative educational
setting for up to 45 days. Id. § 1415(k)(1)(A)(ii), (k)(2) and
(k)(3)(A). The alternative setting must enable the child to receive
the services specified on the IEP and include services to ensure that
the behavior does not recur. Id. § 1415(k)(3)(B). If there is a
connection to the disability, and the requirements for placement in an
interim alternative educational setting are not met, the
recommendation of the IEP Team controls the student's program.
If there is no connection between the student's misconduct and his or
her disability, the student may be disciplined in the same way as any
other student. Id. § 1415(k)(5)(A). However, the school must continue
to provide a FAPE (which includes AT), even if there is no connection.
Id. §§ 1412(a)(1)(A) and 1415(k)(5)(A).
In making the "manifestation" decision, the school must look at all
relevant information, including evaluations, observations, and the
student's IEP and placement, and consider the following: (1) whether
the IEP and placement were appropriate, including whether behavior
intervention strategies were provided consistent with the IEP; (2)
whether the student's disability impaired the ability to understand
the consequences of his or her conduct; and (3) whether the disability
impaired the student's ability to control the behavior in question.
Id. § 1415(k)(4)(C).
Parents may request an impartial hearing to review the decision to
place the student in an interim alternative placement as well as the
"manifestation" decision. However, during the appeal the student would
remain in the interim placement, at least for 45 days. Id. §
1415(k)(7).
Students who have not been classified as disabled by the special
education system may avail themselves of these procedural safeguards
if the school knew that they were disabled before the behavior giving
rise to the discipline occurred. The school will be deemed to know the
student was disabled if: (1) the parents expressed concern, in
writing, that the student may need special education, or they had
referred the student for a special education evaluation; (2) the
behavior or performance of the student demonstrated a need for special
education assistance; or (3) a school employee expressed concern about
the student's behavior or performance to the school's special
education director or other school personnel in accordance with the
school's child find or special education referral system. Id. §
1415(k)(8); 34 C.F.R. § 300.567(b)(4).
III. ASSISTIVE TECHNOLOGY REQUIREMENTS UNDER IDEA
A. History
1. Technology-Related Assistance for Individuals with Disabilities Act
of 1998
Interest in AT grew with the passage of the Technology-Related
Assistance for Individuals with Disabilities Act of 1988 (Tech Act).
P.L. 100-407, 102 Stat. 1044, 29 U.S.C. §§ 2201, et seq. The Tech Act
defined both AT "devices" and "services":
The term "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 functional capabilities of individuals with disabilities. Id.
§ 2202(2).
The term "assistive technology service" means any service that
directly assists an individual with a disability in the selection,
acquisition, or use of an assistive technology device. Such term
includes--
(A) the evaluation of the needs of an individual with a disability,
including a functional evaluation of the individual in the
individual's customary environment;
(B) purchasing, leasing, or otherwise providing for the acquisition of
assistive technology devices by individuals with disabilities;
(C) selecting, designing, fitting, customizing, adapting, applying,
maintaining, repairing, or replacing of assistive technology devices;
(D) coordinating and using other therapies, interventions, or services
with assistive technology devices, such as those associated with
existing education and rehabilitation plans and programs;
(E) training or technical assistance for an individual with
disabilities, or, where appropriate, the family members, guardians,
advocates, or authorized representatives of such an individual; and
(F) training or technical assistance for professionals (including
individuals providing education and rehabilitation services),
employers, or other individuals who provide services to, employ, or
are otherwise substantially involved in the major life functions of
individuals with disabilities. Id. § 2202(3).
The legislative history to the Tech Act indicates the broad range of
AT devices that were contemplated:
The Committee includes this broad definition to provide maximum
flexibility to enable States to address the varying needs of
individuals of all ages with all categories of disabilities and to
make it clear that simple adaptations to equipment are included under
the definition as are low and high technology items and software.
Senate Report No. 100-438, 1988 U.S. Code Cong. & Admin. News, p.
1405.
2. IDEA Amendments of 1990
The definitions of AT devices and services were added to IDEA by the
Education of the Handicapped Act Amendments of 1990. P.L. 101-476, 104
Stat. 1103. This statute adopted, almost verbatim, the definitions of
AT devices and services from the Tech Act.
The legislative history underscored Congress' view of the role AT
could play in the education of students with disabilities. Congress
noted that advances in AT have provided new opportunities for students
with disabilities to participate in educational programs. For many,
the provision of AT "will redefine an 'appropriate placement in the
least restrictive environment' and allow greater independence and
productivity." House Report No. 101-544, 1990 U.S. Code Cong. & Admin.
News, p. 1730. AT was added in order:
(1) to clarify the broad range of assistive technology devices and
related services that are available, and (2) to increase the awareness
of assistive technology as an important component of meeting the
special education and related service needs of many students with
disabilities, and thus enable them to participate in, and benefit
from, educational programs. Id., p. 1731 (emphasis added).
The IDEA definition for an AT device is found at 20 U.S.C. § 1401(1)
and 34 C.F.R. § 300.5. The definition for an AT service is found at 20
U.S.C. § 1401(2) and 34 C.F.R. § 300.6. In In the Matter of the
Adoption of Amendments to N.J.A.C. 6:28-2.10, 3.6 AND 4.3, 27 IDELR 27
(N.J. Sup. Ct., App. Div. 1997), the court invalidated New Jersey's AT
regulations covering "any specialized equipment and materials" because
they failed to define the term to ensure compliance with the
definitions in IDEA.
3. IDEA '97
With the passage of IDEA '97, Congress again emphasized AT. As noted
above, the need for AT must now be considered for all students when
developing the IEP. 20 U.S.C. § 1414(d)(3)(B)(v); 34 C.F.R. §
300.346(a)(2)(v). The comments to the new regulations make it clear
that it is "mandatory for the IEP team to consider each child's AT
needs." In doing so, however, the school is not required to document
in writing its consideration of AT for each student. Federal Register,
pp. 12590-91, 3/12/99.
The comments to the 1999 regulations also make it clear that AT
encompasses the individual student's own personal needs for AT, such
as "electronic notetakers, cassette recorders, etc.," as well as
access to AT devices used by all students. If a student needs
accommodations to use an AT device used by all students, the school
"must ensure that the necessary accommodation is provided." Id., p.
12540.
Orientation and mobility (O&M) services were added to the definition
of related services. 20 U.S.C. § 1401(22). O&M services can involve,
in appropriate cases, the use of AT. O&M services are to be provided
to blind or visually impaired students to enable them to "attain
systematic orientation to and safe movement within their environments
in school, home and community." 34 C.F.R. § 300.24(b)(6)(emphasis
added).
The new regulations add "travel training" to the definition of special
education. Id. § 300.26(a)(1)(ii). Travel training may be provided, as
needed, to any student with a disability to teach the student to move
effectively and safely within the student's environment "(e.g., in
school, in the home, at work, and in the community)." Id. §
300.26(b)(4)(emphasis added).
Finally, the new regulations note the importance of AT to allow
students with disabilities to be transported with their nondisabled
peers:
For some children with disabilities, integrated transportation may be
achieved by providing needed accommodations such as lifts and other
equipment adaptations on regular school transportation vehicles. Id.
Part 300, App. A, Quest. 33 (emphasis added).
The comments to the new regulations emphasize that it is assumed that
most children with disabilities will receive the same transportation
provided to nondisabled children. If the child needs transportation to
receive a FAPE or needs "accommodations or modifications to
participate in integrated transportation with nondisabled children,
the child must receive the necessary transportation or accommodations
at no cost to the parents." Federal Register, p. 12551, 3/12/99
(emphasis added).
B. General Standards for Obtaining AT
1. Basic Eligibility Criteria
The first major policy announcement from the U.S. Department of
Education's Office of Special Education Programs (OSEP) concerning AT
was actually published before the AT definitions were added to IDEA.
Over the years, OSEP has issued many other policy letters interpreting
schools' obligations to provide AT. A number of them will be
summarized here.
As with any other special education service, the need for AT must be
determined on a case-by-case basis, considering the unique needs of
each child. OSEP Policy Letter to Anonymous, 29 IDELR 1089 (11/6/97).
The regulations require that AT devices and services are made
available to any student with a disability, "if required." 34 C.F.R. §
300.308. The basic standard to be met is whether the student needs the
AT to receive a FAPE. OSEP Policy Letter to S. Goodman, 16 Education
for the Handicapped Law Reports (EHLR) 1317 (8/10/90); 34 C.F.R. §
300.308.
The question to be considered is the relationship between the
educational needs of the student and the AT device or service. OSEP
Policy Letter to D. Naon, 22 IDELR 888 (1/26/95). As noted above,
"supplementary aids and services" can be used to assist a student in
nonacademic, educationally-related settings. Therefore, when looking
at the AT needs for a student, the "educational" needs must also
include these nonacademic settings. See 20 U.S.C. § 1401(29) and 34
C.F.R. § 300.306.
AT may be considered as special education, related services, or
"supplementary aids and services" to maintain a student in the LRE. 34
C.F.R. § 300.308(a). A 1997 OSEP Policy Letter had this to say about
the decision making process for AT and including AT on the IEP:
The IEP team's decision about any assistive technology needs is made
on a case-by-case basis, taking into consideration the unique needs of
each individual child. If the IEP team determines that a student with
disabilities requires assistive technology, such as a personal
computer, in order to receive FAPE, and designates such assistive
technology as either special education or related service, the IEP
must include a specific statement describing such service, including
the nature and amount of such services. OSEP Policy Letter to
Anonymous, 29 IDELR 1089 (1/6/97). See OSEP Policy Letter to S.
Goodman, 16 EHLR 1317 (8/10/90); OSEP Policy Letter to B. Orenich,
EHLR 213:166 (8/9/88); OSEP Policy Letter to R. Shelby, 21 IDELR 61
(1/26/95).
Note that because IDEA '97 now defines "supplementary aids and
services" and requires that those services also appear on the IEP, the
above quote should be modified to indicate that if the AT is
considered a supplemental aid or service it still must be included on
the IEP. See 20 U.S.C. § 1414(d)(1)(A)(iii).
The new regulations add provisions for services during the summer
months, called "extended school year (ESY) services." Eligibility must
be determined on an individual basis and ESY services must be
provided, if needed to ensure the student receives a FAPE. ESY
services cannot be limited to particular categories of disability and
schools may not "unilaterally limit the type, amount or duration" of
ESY services. 34 C.F.R. § 300.309. The comments note that states are
free to establish their own standards for ESY services as long as the
standard does not deny ESY services to children who need them to
receive a FAPE. Federal Register, p. 12576, 3/1/299.
In most cases, it will be appropriate to look at a variety of factors
"(e.g., likelihood of regression, slow recoupment, and predictive data
based on the opinions of professionals)", "but for some children, it
may be appropriate to make the determination of whether the child is
eligible for ESY services based only on one criterion or factor." Id.
In any event, to receive AT during the summer, a student need not be
in a full-day educational program. A single special education service
(including AT) may be provided during the summer as the sole component
of a summer program. See OSEP Policy Letter to Hon. T. Libous, 17 EHLR
419 (11/15/90).
2. Evaluations
As with any other component of a student's program, providing
appropriate AT begins with a good, comprehensive assessment. The IEP
Team must assess "the student's functional capabilities and whether
they may be increased, maintained, or improved through the use of [AT]
devices or services." OSEP Policy Letter to J. Fisher, 23 IDELR 565
(12/4/95). Hearing, vision, communication and motor abilities are
properly included in the school's AT assessment. OSEP Policy Letter to
T. Bachus, 22 IDELR 629 (1/13/95).
A parent has the right to an independent AT evaluation, at school
expense, if the parent disagrees with the evaluation obtained by the
school, and the school fails to show that its evaluations were
appropriate. OSEP Policy Letter to J. Fisher, 23 IDELR 565 (12/4/95).
3. Examples of AT
There is no federal "approved list" of AT devices and services covered
by IDEA. OSEP Policy Letter to D. Naon, 22 IDELR 888 (1/26/95). AT can
be quite simple and inexpensive, such as a calculator, OSEP Policy
Letter to C. Lambert, 18 IDELR 1039 (4/24/92), large print books, or
adapted spoons. OSEP Policy Letter to Hon. W. Teague, 20 IDELR 1462
(2/15/94). It can include more sophisticated devices, such as an
auditory FM trainer for a student who is hearing impaired, OSEP Policy
Letter to Anonymous, 18 IDELR 1037 (4/6/92), a personal computer, OSEP
Policy Letter to Anonymous, 29 IDELR 1089 (11/6/97), or a closed
circuit TV for a student who is blind. OSEP Policy Letter to
Anonymous, 18 IDELR 627 (11/21/91). As noted above, IDEA '97 also
includes O&M services. See also OSEP Policy Letter to Anonymous, 13
EHLR 213:198 (2/13/89).
The comments to the new regulations indicate that it is not
appropriate to give examples of covered AT devices in the regulations.
However, the comments note that captioning, computer software, FM
systems and hearing aids are appropriate AT devices for students with
hearing impairments. The comments also note other examples of AT
devices include electronic notetakers, cassette recorders, word
prediction software, adapted keyboards, voice recognition and
synthesis software, head pointers, and enlarged print. Federal
Register, pp. 12540, 12575, 3/12/99.
4. Least Restrictive Environment and AT
The legislative history adding AT to IDEA, referred to above, also
stresses how AT can assist a student to be educated in the LRE. To
ensure meaningful integration with nondisabled peers, a federal court
has ruled that a child who could not regulate his body temperature was
entitled to a fully air-conditioned classroom, not an air-conditioned
plexiglass cubicle where he would be isolated from his peers. Espino
v. Besteiro, 520 F.Supp. 905 (S.D.Tex. 1981).
As noted above, the use of O&M services and travel training, which can
include AT, should be designed to promote more independent travel
within the school, home and community. 34 C.F.R. § 300.24(b)(4) and
(6). The comments to the new regulations also indicate that AT may
allow a student in a wheelchair, for example, to be transported on a
regular bus. Id. Part 300, App. A, Quest. 33.
5. Implementation
The comments to the new regulations, noting that each student's need
for AT must be made on an individual basis, indicate that:
[D]eterminations regarding the provision of AT must be made when the
child's IEP for the upcoming school year is finalized so that the AT
can be implemented with the IEP at the beginning of the next school
year. Federal Register, p. 12591, 3/12/99 (emphasis added).
To support implementation of AT goals, the definition of AT services
includes training for the student with a disability, as well as the
family, if appropriate. 34 C.F.R. § 300.6(e). The new regulations
strengthen this concept by adding to the definition of "parent
counseling and training." The definition now includes "[h]elping
parents to acquire the necessary skills that will enable them to
support implementation of their child's IEP." Id. § 300.24(b)(7)(iii).
The comments note that this change is consistent with "the more active
role acknowledged for parents" by IDEA '97. Federal Register, p.
12549, 3/12/99. It is hoped that teaching parents the skills to help
their children reach their IEP goals will:
[A]ssist in furthering the education of their children, and will aid
the schools as it will create opportunities to build reinforcing
relationships between each child's educational program and
out-of-school learning. Id.
A federal court has recently determined that a school did not provide
appropriate AT to a student with multiple disabilities. It was agreed
that the student needed a laptop computer with a word prediction
program. The court found, however, that the school did not properly
implement this recommendation. East Penn School District v. Scott B.,
29 IDELR 1058 (E.D.Pa. 1999).
To support its conclusion, the court found that the school: (1) took a
year to obtain the computer and an additional semester to get the
computer up and running; (2) took another semester before the teacher
and some of the other staff were trained; (3) never trained the aide
or the parents; (4) inadequately adapted the keyboarding instruction
to the student's physical needs; (5) did not design the use of the AT
device so it would permeate the student's day; and (6) chose a
software program that would not provide meaningful educational benefit
to the student. Id.
C. Special Issues
1. Home Use
What if a student using AT needs the device at home? Say a high school
student with a learning disability uses a computer to do written work.
Can the student take the computer home (if it is a laptop) or ask the
school to provide a computer or software for home use? The U.S.
Department of Education has stated that if the IEP Team determines
that an AT device is needed for home use for a student to receive a
FAPE, the technology must be provided. The example given by the
Department of Education was a closed-circuit TV for a student who is
blind and needed to use the device at home to complete homework
assignments. OSEP Policy Letter to Anonymous, 18 IDELR 627 (11/21/91).
The new regulations state that schools may be responsible for
providing AT in the home, or in other settings, if the IEP Team
determines, on a case-by-case basis, that the student will need the AT
in that setting to receive a FAPE. 34 C.F.R. § 300.308(b).
2. Personally Prescribed Devices
Historically, the U.S. Department of Education has ruled that schools
are not required to provide a personal device which a student would
require whether or not in school. However, because the definition of
AT device does not include this limitation, the Department of
Education has changed its position. It has stated that a hearing aid
is covered under the definition of "AT device." Therefore, if the
child requires a hearing aid in order to receive a FAPE, the school
must provide it at no cost to the child or parents. OSEP Policy Letter
to P. Seiler, 20 IDELR 1216 (11/19/93); OSEP Policy Letter to J.
Galloway, 22 IDELR 373 (12/22/94). Similarly, if a student requires
eyeglasses in order to receive a FAPE, the school must provide the
eyeglasses at no cost to the parents. OSEP Policy Letter to T. Bachus,
22 IDELR 629 (1/13/95). The same analysis would apply to a pulmonary
nebulizer. See OSEP Policy Letter to Anonymous, 24 IDELR 388
(1/23/96). The comments to the new regulations confirm this position.
Federal Register, p. 12540, 3/12/99.
The definition of related services includes transportation in and
around school buildings and can involve specialized equipment. 34
C.F.R. § 300.24(b)(15). Based on this definition, the Department of
Education has issued an opinion that if a wheelchair is required, the
school must provide the service at public expense and without charge,
regardless of whether the parents possess a wheelchair or can obtain
one through private insurance. However, the school is not required to
provide the wheelchair for personal use while the student is not in
school. OSEP Policy Letter to J. Stohrer, 13 EHLR 213:211, 212
(4/20/89).
3. Private Insurance and Medicaid
IDEA '97 specifically authorizes the use of Medicaid. The regulations
also authorize the use of a parent's private insurance. 34 C.F.R. §
300.301(b). May a school compel a parent to use Medicaid or private
insurance when it is available to the family? The U.S. Department of
Education has stated that this use must be voluntary. A school cannot
deny services if parents refuse to authorize the use of Medicaid or
private insurance. Moreover, such use must not result in any cost to
the parents, such as: copayment, deductible, or reduction of an annual
or lifetime cap on coverage. OSERS Policy Letter to Rose, 18 IDELR 531
(4/19/91).
The school can eliminate the possibility of cost to the parents by
paying for the deductible or copayment. Nevertheless, there may be
circumstances where parents will still not want to use the private
insurance policy, or Medicaid. For some students with significant
needs, even a very substantial lifetime cap could be quickly used up,
requiring the family to be very careful about when the insurance
policy is used. Both Medicaid and private insurance companies may
limit how frequently they will pay for an item. Therefore, a parent's
use of insurance or Medicaid to pay for special education and related
services is voluntary. If the parent refuses to consent to their use,
special education services cannot be denied. OSEP Policy Letter to Dr.
O. Spann, 20 IDELR 627 (9/10/93); OSEP Policy Letter to W. Cohen, 19
IDELR 278 (7/9/92).
The regulations codify these principles. A school may use parents'
private insurance only with the parents' informed consent, each time
the school seeks to use their insurance. The school must tell parents
that their refusal to consent to the use of their private insurance
does not relieve the school of its obligation to provide services. 34
C.F.R. § 300.142(f). The comments add that parents may not be aware of
potential future consequences resulting from the use of their
insurance. Accordingly, schools should inform parents of potential
consequences, such as exceeding a cap on benefits, and encourage
parents to check with their insurance provider before giving consent.
Federal Register, p. 12567, 3/12/99.
Unlike private insurance, a school is not required by IDEA to obtain
advance consent each time it uses a public insurance program, such as
Medicaid. Id., p. 12569. But, a school may not require parents to sign
up for public insurance. Nor can the school require the parents to use
public insurance where there is "financial cost." Financial cost
includes: (1) out-of-pocket expenses such as deductibles or
copayments; (2) a decease in available lifetime coverage or any other
benefit, including the family paying for services that would otherwise
have been covered; (3) risk of loss of eligibility for home and
community-based waiver programs; and (4) an increase in premiums or
the discontinuation of the insurance. 34 C.F.R. § 300.142(e).
A school may pay the costs of accessing the private or public
insurance for parents who would otherwise have consented to the use of
the insurance. Id. § 300.142(g)(2). However, as with private
insurance, a child's right to a FAPE is not dependent upon whether
parents consent to the use of public insurance, such as Medicaid.
Federal Register, p. 12569, 3/12/99. If the parents refuse to give
consent to using Medicaid, the school is still responsible for
providing the recommended services.
4. Repairs and Damages
The definition of AT services includes repairing, maintaining and
replacing AT devices. 20 U.S.C. § 1401(2); 34 C.F.R. § 300.6(c).
Therefore, if an AT device is damaged during the course of its use,
the school should be responsible for any repairs. Accordingly, the
U.S. Department of Education has stated that if parents agree to use
family-owned AT to fulfill the IEP, the school is responsible for
maintenance and repair if it was damaged on the school bus or at
school. The Department of Education reasoned that if the school did
not use the family-owned device, it would be responsible for providing
and maintaining a needed device itself. OSEP Policy Letter to
Anonymous, 21 IDELR 1057 (8/9/94).
Nevertheless, the Department of Education made the following
observations in a policy letter on repairs and maintenance of AT
devices: If the IEP Team determines that a student needs an AT device
at home to receive a FAPE, the device must be provided at no cost to
the parents. This means a school cannot charge parents for normal use
and wear and tear. However, state laws govern "whether parents are
liable for loss, theft, or damage due to negligence or misuse of
publicly-owned equipment used at home in accordance with a student's
IEP." OSEP Policy Letter to S. Culbreath, 25 IDELR 1212 (2/7/97). This
policy letter does not discuss how the definition of AT service, which
includes maintenance and repair, applies. It did, however, note that
any state laws must still be implemented consistently with IDEA and
the right to a FAPE. Id. The comments to the new regulations restate
this proposition: that parents cannot be charged for normal use, and
wear and tear, but that state law, not IDEA, will generally govern
parent liability for theft, loss, or damage due to negligence or
misuse of AT at home or in other settings. Federal Register, p. 12540,
3/12/99.
D. AT Used with School Health Services
IDEA allows for the provision of "medical services," but they are
limited to diagnosis and evaluation. 20 U.S.C. § 1401(22). The
regulations define "medical services" as those "provided by a licensed
physician to determine a child's medically related disability." 34
C.F.R. § 300.24(b)(4). The regulations also include "school health
services," which are to be provided by "a qualified school nurse or
other qualified person." Id. § 300.24(b)(l2). Therefore, according to
the regulations, the services a physician is authorized to perform are
limited to evaluations and diagnoses. Direct medical types of services
by non-physicians, such as nurses and trained laypersons are
permitted.
1. The Tatro Decision
This regulatory scheme was upheld by the Supreme Court in Irving
Independent Sch. Dist. v. Tatro, 468 U.S. 883 (1984). Amber Tatro was,
at the time of the decision, an eight year old with spina bifida. As a
result, she needed to be catheterized every three to four hours. Clean
intermittent catheterization (CIC) is a simple procedure that can be
performed by a layperson with less than an hour's training. It was
expected that Amber would soon be able to perform the procedure
herself. The school, nevertheless, refused to provide this service to
her.
The Court ruled that CIC is a permissible related service for students
with disabilities. The Court reasoned that catheterization is a
related service because it "enables a handicapped child to remain at
school during the day . . . [similar to] services that enabled the
child to reach, enter or exit the school." Id. at 891. In determining
whether a medically related service is permissible as a "school health
service" or excluded as a "medical service," the Court stated that the
service must be required to be performed during the school day and
must be able to be performed by someone other than a physician. Id. at
894.
The Court rejected the school's concern about increased liability if
it performed this service as not relevant to whether CIC is a related
service. The Court went on to note that:
[IDEA] creates numerous new possibilities for injury and liability.
... Congress assumed that states receiving the generous grants under
the Act were up to the job of managing these new risks. Whether [the
school] decides to purchase more liability insurance or to persuade
the State to extend the limitation on liability, the risks posed by
CIC should not prove to be a large burden. Id. at p 893, fn. 12.
Based on dicta in Tatro, several courts had adopted a multi-factor
test to determine whether IDEA required a school to provide health
services to students. See Neely v. Rutherford County School, 68 F.3d
965 (6th Cir. 1995), cert. denied, 517 U.S. 1134 (1996); Detsel v. Bd.
Of Ed. Of Auburn Enlarged City School Dist., 820 F.2d 587 (2nd Cir.
1987), cert. denied, 484 U.S. 981 (1987).
2. The Garret F. Decision
On March 3, 1999, the Supreme Court reaffirmed its decision in Tatro.
The Court adopted a "bright line" test for determining whether health
services are required under IDEA and ordered a school district to
provide a ventilator-dependent student with one-to-one school health
services. It rejected a multi-factor test to determine the need for
school health services. Cedar Rapids Community Sch. Dist. v. Garret
F., ___ U.S. ___, 119 S.Ct. 992 (1999).
Garret is described as a "friendly, creative, intelligent young man"
who is successfully attending regular education classes. Id. at 995.
He is paralyzed from the neck down because of a motorcycle accident
when he was four years old. He operates his motorized wheelchair
through a puff and suck straw and operates a computer with a device
that responds to head movements. He is ventilator dependent for
breathing and requires additional assistance for several health care
needs during the school day. Garret needs someone to assist with CIC,
suctioning his tracheotomy tube, food and drink at lunch, getting him
into a reclining position for five minutes every hour and manually
pumping an air bag for him to breath while his electric ventilator is
being maintained. Id. and fn. 3. Garret's needs were attended to by an
18 year old aunt for one year and then by a licensed practical nurse
which the parents hired with proceeds from the accident settlement.
When the family asked the school to begin paying for this service, it
refused, stating it was not required to provide continuous one-on-one
nursing care. Id. at 995-996.
In Garret F., the school urged the adoption of a multi-factor test
that would look at whether the care was continuous or intermittent,
whether existing school health personnel could provide the service,
the cost of the service, and the potential risk if the service was not
performed properly. Id. at 998. The Supreme Court, noting that all of
the school's factors really boil down to cost, rejected them as a
basis for determining whether a student needs health related services.
The Court stated the school's multi-factor test "is not supported by
any recognized source of legal authority." Id. Moreover, while more
extensive than the services at issue in Tatro, Garret's needs were no
more "medical." Id.
The Court reaffirmed the use of its two-part test developed in Tatro
and referred to above (i.e., whether the service must be performed
during the school day and will be provided by a non-physician). It was
conceded that Garret required the requested services, during the
school day, to be able to attend school and that the services did not
need to be performed by a physician. Therefore, the Court affirmed the
responsibility of the school to provide the services.
Finally, in a comment that can be extended beyond the issues involved
in Garret's case, the Court noted that schools "cannot limit
educational access simply by pointing to the limitations of existing
staff." "[T]he IDEA requires school districts to hire specially
trained personnel to meet disabled student needs." Id. at p. 999, fn.8
(citations omitted).
IDEA requires that states have what is referred to as a comprehensive
system of personnel development to ensure there are sufficient
qualified personnel to meet the needs of its students with
disabilities. 34 C.F.R. § 300.135. In keeping with the theme raised in
Garret F., the comments to the new regulations note that "each State
must have a mechanism for serving children with disabilities if
instructional needs exceed available (qualified) personnel, including
addressing those shortages in its comprehensive system of personnel
development if the shortages continue." Federal Register, p. 12408,
3/12/99, regarding 34 C.F.R. § 300.136(g)(3).
IV. MAXIMIZATION OF A STUDENT'S POTENTIAL
As with any other specialized services a student with a disability
will receive under IDEA, the basic question will always be: is this AT
device or service necessary to enable the student to receive a FAPE?
Therefore, the definition of appropriate is critical in determining
the availability of AT. What, if any, arguments can be made to limit
the impact of the Rowley case when looking at the AT needs of a
student?
A. The Rowley Decision
As stated above, in 1982 the United States Supreme Court determined
that the obligation to provide a FAPE did not mean a school was
required to "maximize" a student's potential or provide the best
education possible. The Court noted that the program must be based on
the student's unique individual needs and be designed to enable the
student to benefit from an education. In other words, the student must
be making progress. Rowley, 458 U.S. 176 at 188, 189. However, more
than a minimal benefit is required for the program to be appropriate.
Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171 (3rd Cir.
1988), cert. denied, 109 S. Ct. 838 (1989); See Ridgewood Board of Ed.
v. N.E., 30 IDELR 41 (3rd Cir. 1999).
In the case of a student being educated in regular classes, the Court
determined that in most cases, if the student was advancing from grade
to grade with the benefit of supportive services, the student was
receiving an appropriate education. Rowley at 203. The Court
cautioned, however, that not "every child who is advancing from grade
to grade in a regular public school system is automatically receiving
a [FAPE]." Rowley at p. 203, fn. 25 (emphasis added). Consistent with
this comment, the new regulations make clear that schools are not
relieved of their obligation to provide a FAPE to students even though
they are advancing from grade to grade. The decision of whether a
student is still in need of services is to be made by the IEP Team. 34
C.F.R. § 300.121(e).
Accordingly, one court has found that a student with an orthopedic
impairment, who desired transition services to assist her move from
high school to independent living at college, was still eligible for
services even though she was an "A" student. Yankton School Dist. v.
Schramm, 93 F.3d 1369 (8th Cir. 1996). The court stressed that the
student received shortened and modified writing assignments,
instruction on how to type, copies of class notes, related services to
address her slowness in walking and hand strength, special
transportation to school on a lift bus and mobility assistance within
the school building. Id. at 1374. In reaching its conclusion, the
court noted that all of these services were necessary because of her
impairment and that but for this specialized instruction and services,
her educational performance would be adversely affected. Id. at 1375.
B. LRE and Uses of AT
IDEA requires that students are educated in the least restrictive
environment (LRE) to the "maximum" extent appropriate. Here, we are
looking at maximizing something - the placement of a student in the
regular education environment. Accordingly, the Rowley test for
determining whether a program is appropriate is not particularly
helpful when LRE is at issue. See Daniel R.R., 874 F.2d 1036 at 1045
("The Rowley test thus assumes the answer to the question presented in
a mainstreaming case.").
This is even more true when the issue is LRE combined with AT. The
legislative history adding AT to IDEA emphatically recognized the role
AT might play in implementing the LRE requirement: AT "will redefine
an 'appropriate placement in the least restrictive environment' and
allow greater independence and productivity." House Report No.
101-544, 1990 U.S. Code Cong. & Admin. News, p. 1730. In LRE cases,
therefore, the question to be answered is, again, not the degree of
academic progress being made, but the need for the AT for the student
to be successful in the regular education setting. Recall that in
Espino v. Besteiro, 520 F.Supp. 905 (S.D.Tex. 1981) the court ordered
the school to provide an air conditioned classroom for a student to
enable him to interact with his peers in the classroom.
C. Students in Transition
Transition planning requirements were first added to IDEA in 1990.
Transition services were defined as a coordinated set of activities,
designed within an outcome oriented process, which promotes movement
from school to adult living. 20 U.S.C. § 1401(30). Transition services
were to begin no later than age 16. Id. § 1414(d)(1)(A)(vii)(II).
Therefore, since 1990, when considering transition services for
students, the question to be answered should not have been limited
solely to issues of academic progress when considering whether a
student is receiving an appropriate education. Rather, the issue
should have been what will the goal be for this student as an adult,
where is the student now in reaching that goal, and what will the
student need between now and when the student completes high school or
ages out to be ready to meet that goal. That is what an "outcome
oriented approach" means.
Of greater significance is the change to transition planning
requirements made by IDEA '97. Now, beginning at age 14, schools are
to begin considering the transition needs related to a student's
course of study such as "participation in advanced placement courses
or a vocational education program." Id. §
1414(d)(1)(A)(vii)(I)(emphasis added).
In Amy Rowley's case, Amy was advancing from grade to grade even
though she was missing about half of what was being said in her
classes. Rowley, 458 U.S. at 184-85. How would she have faired in an
advanced placement (AP) class if she missed half of what was
occurring? What if she needed the sign language interpreter or real
time captioning to pass AP History? Since transition planning now
includes, where applicable, AP courses, if she did need one those
services to pass the class, she should be entitled to it.
D. Effect of IDEA '97
When passing IDEA '97, Congress did not specifically modify the
definition of FAPE itself. See 20 U.S.C. § 1401(8). However, Congress
did make some profound statements which seem to undercut the Supreme
Court's analysis in Rowley. First, in its statement of findings,
Congress found that the education of students with disabilities can be
made more effective by supporting professional development of those
working with them to ensure that students with disabilities:
[H]ave the skills and knowledge necessary to enable them--
(i) [T]o meet developmental goals and, to the maximum extent possible,
those challenging expectations that have been established for all
children; and
(ii) [T]o be prepared to lead productive, independent, adult lives, to
the maximum extent possible ... . Id. § 1400(c)(5)(E)(emphasis added).
More importantly, in delineating the purposes of IDEA, Congress also
enlarged the scope of an appropriate education by requiring that not
only should it meet students' unique needs, it should also "prepare
them for employment and independent living." Id. § 1400(d)(1)(A). This
addition is more than mere window dressing, as states must develop
goals for the performance of children with disabilities which will
promote meeting this requirement. Id. § 1412(a)(16)(A)(i).
The U.S. Department of Education, in the commentary to its proposed
regulations implementing IDEA '97, stressed:
This change represents a significant shift in the emphasis of
[IDEA]-to an outcome oriented approach that focuses on better results
for children with disabilities rather than on simply ensuring their
access to education. Federal Register, p. 55029, 10/22/97 (emphasis
added).
The comments to the final regulations reaffirm this position:
Therefore, it is correct to state that the 1997 amendments [to IDEA]
place greater emphasis on a results-oriented approach related to
improving educational results for disabled children than was true
under prior law. Federal Register, p. 12538, 3/12/99.
Nevertheless, because the phrase "appropriate" is still used in the
definition, it is unlikely that these comments mean that Rowley has
been effectively overruled by Congress in all circumstances. However,
in determining whether a student is benefitting from an education, the
analysis cannot be limited solely to academic achievement. Even if a
student is making significant academic progress, that can no longer be
the end of the inquiry.
By adding that the purpose of IDEA is to prepare students for
employment and independent living, Congress simply took what already
applied to students during the transition years and applied it to
students of all ages. IDEA '97 expands the question of what the
purpose of an education is. Therefore, if a student will need AT to
prepare for adult living, even if he or she is making academic
progress, the AT should be provided.
V. EDUCATIONAL METHODOLOGY
A. Implications of the Rowley Decision
In Rowley, the Supreme Court also stated that courts should not
substitute their judgement about particular types of educational
methodology for that of education officials. The Court commented that
IDEA was "by no means an invitation to the courts to substitute their
own notions of sound educational policy for those of the school
authorities which they review." Rowley, 458 U.S. at 206. Over the
years many courts have, based on this language, deferred to the
judgement of the educators when reviewing choices of educational
method.
Nevertheless, schools must still ensure that the IEP is appropriate
for the student. Rowley at 207. The warning not to second guess a
school's choice of educational methodology does not mean that the
court should ignore its obligation to enforce IDEA. Oberti v. Board of
Education, 995 F.2d 1204, 1214 (3rd Cir. 1993). Moreover, there is
nothing to prohibit including an instructional method on the IEP. See
Ridgewood Bd. Of Ed. v. N.E., 30 IDELR 41 (3rd Cir. 1999)(IEPs
included Orton Gillingham and Wilson reading methods).
B. IDEA '97
The regulations implementing IDEA '97 amend the definition of special
education to include a definition of "specially-designed instruction."
Specially-designed instruction includes adapting "methodology or
delivery of instruction" to meet the unique needs of a student with a
disability and to ensure access to the general curriculum. 34 C.F.R. §
300.26(b)(3)(emphasis added). The comments to the regulations note
concerns raised in the legislative history to IDEA '97, that IEPs
should not be overly-prescriptive by including a day-to-day teaching
approach or lesson plan. Federal Register, p. 12552, 3/12/99. They
also note that while case law has recognized the important role
instructional methodology can play in providing a FAPE, courts "will
not substitute a parentally preferred methodology for sound
educational programs developed by" the school. Id.
In discussing the importance of adding "methodology" to the definition
of specially-designed instruction, however, the comments note:
[T]here are circumstances in which the particular teaching methodology
that will be used is an integral part of what is "individualized"
about a student's education and, in those circumstances will need to
be discussed at the IEP meeting and incorporated into the student's
IEP. For example, for a child with a learning disability who has not
learned to read using traditional instructional methods, an
appropriate education may require some other instructional strategy.
... There is nothing in the definition of "specially designed
instruction" that would require instructional methodology to be
addressed in the IEPs of students who do not need a particular
instructional methodology in order to receive educational benefit. In
all cases, whether methodology would be addressed in an IEP would be
an IEP team decision. Id.
C. Rowley Revisited
The discussion of educational methodology in the Rowley case arose in
the context of the appropriate method for teaching a student who was
deaf. Rowley, 458 U.S. at 207, fn. 29. At issue in the case was
whether Amy Rowley needed a full-time sign language interpreter. As
noted above, IDEA '97 now requires that the IEP Team consider the use
of Braille for blind and visually impaired students and the use of and
instruction in the child's language and mode of communication for deaf
or hard of hearing students. 20 U.S.C. § 1414(d)(3)(B); 34 C.F.R. §
300.346(a)(2).
The comments to the new regulations make it clear that this
requirement effectively overrules the Rowley decision. They note that
if the IEP Team determines that a student who is deaf needs a sign
language interpreter in order to participate in the general
curriculum, those needs must be addressed in the IEP. Id. Part 300,
App. A, Quest. 2. The comments go on to add that if the student needs
to expand his or her vocabulary in sign language, that need must be
addressed, and that the IEP Team may want to consider training family
members in sign language, if needed for the student to receive a FAPE.
Id.
D. Methodology and AT
IDEA defines AT devices and services as either special education,
related services or supplementary aids and services. 34 C.F.R. §
300.308(a). As noted above, IDEA '97 requires that the IEP include the
special education, related services and supplementary aids and
services the student will receive. 20 U.S.C. § 1414(d)(1)(A)(iii).
Accordingly, as with any other special services a student may receive,
the IEP must include a specific statement describing such service,
including the nature and amount of such services. OSEP Policy Letter
to Anonymous, 29 IDELR 1089 (1/6/97).
What about a student's need for computer software? Will the choice of
software be akin to educational methodology and be limited by the
Rowley decision? As noted above, the AT definitions under IDEA were
taken from the Tech Act. The legislative history to the Tech Act noted
that computer software is included in the definition of an AT device.
Senate Report No. 100-438, 1988 U.S. Code Cong. & Admin. News, p.
1405. As noted above, the comments to the new regulations also include
computer software in the examples of AT devices. Federal Register, pp.
12540, 12575, 3/12/99. Therefore, computer software would also be
included in the definition of an AT device under IDEA, to be included
in the IEP as would any other AT device or service.
This is not to say that schools have no discretion in selecting a
particular brand of AT hardware or software. However, the AT selected
by the school must be appropriate to the needs of the student, and the
parents are entitled to pursue an impartial hearing to appeal the
school's choice. For example, in East Penn School District v. Scott
B., 29 IDELR 1058 (E.D.Pa. 1999), it was agreed that the student
needed a laptop computer with a word prediction program. The school
selected a word prediction program called Telepathic. The parents
appealed and the court found that this program was not appropriate
because it would not provide meaningful educational benefit to the
student. The court found that the student needed a program which would
also provide word recognition and grammar prediction, such as
Co:Writer.
VI. OBLIGATIONS OF SCHOOL DISTRICTS UNDER SECTION 504
A. Introduction
Section 504 was included in the Rehabilitation Act of 1973. The major
thrust of the Rehabilitation Act of 1973 was to provide federal
funding and a mandate for vocational rehabilitation services for
people with disabilities. Section 504, however, which prohibits
discrimination on the basis of disability, was modeled after the Civil
Rights Act of 1964. It is codified at 29 U.S.C. § 794, but because it
is so often referred to simply as section 504, that is what it will be
called in this booklet. The section 504 regulations which cover
schools are found at 34 C.F.R. Part 104. Section 504 also served as
the foundation for the Americans with Disabilities Act (ADA). 42
U.S.C. §§ 12101 et seq. However, because the ADA does not provide any
rights to students with disabilities beyond what are included in
section 504, this booklet will not discuss the ADA.
Section 504 is a very broad statute. It prohibits discrimination in
any program or activity receiving federal financial assistance. It
also applies to any programs run by the U.S. government. The relevant
part of the law is:
No otherwise qualified individual with a disability in the United
States, as defined in section 706(8) of this title, shall, solely by
reason of her or his disability, be excluded from the participation
in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance or
under any program or activity conducted by [the U.S. government]. 29
U.S.C. § 794(a).
Since, as far as we know, all public school districts receive federal
funds, they are covered by section 504. Additionally, any private
schools which receive federal funds, including those run by religious
organizations, are also covered, even if they receive the money
indirectly. 34 C.F.R. § 104.3(f). Many private schools may receive
federal funds from the local school district in which they are located
in the form of textbook aid, or aid for school breakfast or lunch and,
therefore, are covered by section 504. However, there is no separate
funding available under section 504 to assist schools in meeting their
responsibilities under section 504. By receiving federal money for
other programs, such as IDEA, they are required to comply with section
504.
To be eligible for services under IDEA, a student's disability must
meet the definition of one of several listed disabilities and, as a
result, the student must require special education services. 20 U.S.C.
§ 1401(3)(A). The definition of disability under section 504 is much
broader. The statute defines an "individual with a disability" as:
[A]ny person who (i) has a physical or mental impairment which
substantially limits one or more of such person's major life
activities, (ii) has a record of such an impairment, or (iii) is
regarded as having such an impairment. 29 U.S.C. § 706(8)(b).
Additionally, under section 504, students with disabilities are
eligible even if they do not need any special education services. A
student would be eligible if the only services received were
modifications in the regular education program. See 34 C.F.R. §
104.33(b)(1).
Therefore, students whose disabilities do not meet the criteria under
IDEA, but who still may need some specialized assistance, including
AT, are covered by section 504. U.S. Dept. of Ed., Joint Policy
Memorandum, 18 IDELR 116 (9/16/91); OSEP Policy Letter to Teague, 20
IDELR 1462 (2/15/94). Furthermore, if a school determines that a
student with a disability is not eligible for services under IDEA, it
must have a process in place to determine whether the student is
covered by section 504. See U.S. Dep't of Ed., Joint Policy
Memorandum, 18 IDELR 116 (9/16/91).
In Southeastern Community College v. Davis, 442 U.S. 397 (1979), the
Supreme Court ruled that section 504's prohibition on discrimination
was not a mandate for affirmative action. Accordingly, section 504
does not require a recipient to undertake substantial revision of its
program. The Court left open, however, the possibility that in certain
circumstances a recipient of federal funds could be required to take
affirmative steps to avoid discriminatory treatment. Affirmative steps
would be required if those steps did not impose undue financial and
administrative burdens. Id. at 412. See New Mexico ARC v. New Mexico,
678 F.2d 847 (10th Cir. 1982).
In keeping with the basic tenor of section 504, to prevent
discrimination, schools must take all reasonable steps to ensure that
students with disabilities have access to the full range of programs
and activities offered by the school. 34 C.F.R. §§ 104.4, 104.21,
104.22, 104.34, 104.37. See Eldon (MO) R-I School District, EHLR
352:145 (OCR, 1/16/86); Beaver Dam (WI) Unified Sch. Dist., 26 IDELR
761 (OCR, 2/27/97)(Access to chorus room and auditorium); Saddleback
Valley (CA) Unified Sch. Dist., 27 IDELR 376 (OCR, 5/5/97). A school
district is not required to make every part of every building it owns
fully accessible. However, it is responsible for ensuring that all of
its programs are accessible to students with disabilities. 34 C.F.R. §
104.21. In meeting this program accessibility mandate, a school does
not need to make structural changes to existing facilities if other
effective methods are available. However, the school must give
priority to those methods which enable students with disabilities to
participate "in the most integrated setting appropriate." Id. §
104.22(b).
B. Free Appropriate Public Education
As with IDEA, section 504 guarantees that students with disabilities
receive a FAPE. However, section 504 defines FAPE a little
differently. Under section 504, it is defined as regular or special
education and related aids and services that are designed to meet
individual educational needs of students with disabilities as
adequately as the needs of nondisabled students are met. Id. §
104.33(b)(1). All services are to be without cost to the students or
their parents, except for those fees that are imposed on nondisabled
students or their parents. Id. § 104.33(c)(1).
OSEP, in a policy memorandum about attention deficit disorders (ADD),
indicated that the following services are available under section 504.
U.S. Dept. of Ed., Joint Policy Memorandum, 18 IDELR 116 at 118
(9/16/91):
State educational agencies and [schools] should take the necessary
steps to promote coordination between special and regular education
programs. Steps also should be taken to train regular education
teachers and other personnel to develop their awareness about ADD and
its manifestations and the adaptations that can be implemented in
regular education programs to address the instructional needs of these
children. Examples of adaptations in regular education programs could
include the following:
a. Providing a structured learning environment
b. Repeating and simplifying instructions about in-class and homework
assignments
c. Supplementing verbal instructions with visual instructions
d. Using behavioral management techniques
e. Adjusting class schedules and modifying test delivery
f. Using tape recorders, computer-aided instruction, and other
audio-visual equipment
g. Selecting modified textbooks or workbooks
h. Tailoring homework assignments.
Other provisions range from consultation to special resources and may
include reducing class size; use of one-on-one tutorials; classroom
aides and note takers; involvement of a "services coordinator" to
oversee implementation of special programs and services, and possible
modification of nonacademic times such as lunchroom, recess and
physical education.
C. Least Restrictive Environment
As with IDEA, section 504 requires that each student with a disability
is to be educated with students who are not disabled, to the maximum
extent appropriate. There is also a similar preference for educating
students in the regular education setting. Students are to be placed
in the regular educational environment unless it is demonstrated by
the school that the education of the person in the regular environment
with the use of supplementary aids and services cannot be achieved
satisfactorily. For students placed in a setting other than the
regular educational environment, the school shall take into account
the proximity of the alternate setting to the person's home. 34 C.F.R.
§ 104.34(a).
D. Due Process and Procedural Safeguards
Schools are required to develop a procedure to determine the student's
needs. Schools may choose to simply use the IEP procedures under IDEA
to determine a student's needs under section 504. Id. §§ 104.33(b)(2),
104.36. However, because most of the services under section 504 will
be provided by regular education staff within the school, many schools
have set up building level teams to implement section 504. In such
cases, the procedures developed must conform to section 504. Most of
the requirements are similar but not identical to IDEA's requirements.
Prior to providing any services under section 504, the student must be
provided with a comprehensive, individualized evaluation of his or her
needs. Once the student begins receiving services, there must be
regular reevaluations. There must also be a comprehensive reevaluation
before any significant change in placement. Id. § 104.35(a), (b) and
(d). Decisions about the services the student will receive must be
made by a group of people, knowledgeable about the child, the
evaluation information and the placement options. Id. § 104.35(c). The
parents must be involved in the process. See Id. § 104.36. There is no
requirement that the school develop an IEP for the student. However,
the student's needs and the services to be provided must be
specifically identified, in writing. OCR Senior Staff Memorandum, EHLR
307:01 (10/24/88).
Parents have due process rights if they disagree with the school's
recommendations under section 504, including the right to an impartial
hearing and a review procedure. The school may use the due process
procedures under IDEA to satisfy the section 504 mandates, but is not
required to do so. 34 C.F.R. § 104.36. The due process rights under
section 504 do not include the right to an independent evaluation at
school expense. However, the U.S. Department of Education's Office for
Civil Rights (OCR), which enforces section 504, has determined that an
impartial hearing process must include "status quo," i.e., the right
to continued services pending an appeal. OCR Policy Letter to P.
Zirkel, 22 IDELR 667 (5/15/95).
E. Assistive Technology
If a student with a disability, who is not receiving special education
services, needs an AT device to fully participate in school
activities, section 504 may require that the school provide the
device, as well as any training needed to effectively use the device.
U.S. Dept. of Ed., Joint Policy Memorandum, 18 IDELR 116 at 118
(9/16/91); Colton Joint (CA) Unified Sch. Dist., (OCR, 4/7/95).
Because services under section 504 are to be free, the school should,
as under IDEA, be responsible for repairs and maintenance.
Over the years, OCR has issued a number of rulings concerning the use
of AT. In a number of these cases OCR found that there was no
violation of section 504 because the school was providing the AT
device in question. For example, OCR recently determined that there
was no violation of section 504 where the school purchased a MacIntosh
computer for the student to use while in school. The student could use
his IBM compatible computer at home for homework, store the work on
disk, bring the disk in and have the work converted to MacIntosh
format at school. Glendale (AZ) High Sch. Dist., 30 IDELR 62 (OCR
1998). The following cases serve as an illustrative list of AT devices
which could be funded by schools under section 504:
1. Modification and adaptation of a computer to enable a student with
quadriplegia to use the computer without assistance. Colton Joint (CA)
Unified Sch. Dist., (OCR, 4/7/95).
2. Classroom hearing assistive device and reduction of noise levels
for a student with a hearing impairment. Cobb County (GA) Sch. Dist.,
27 IDELR 229 (OCR, 5/22/97).
3. Use of a computer for a student with a mobility impairment to
access the library. However, the school was not required to install an
elevator to make the library accessible. Newton (MA) Pub. Schs., 27
IDELR 233 (OCR, 5/30/97).
4. Use of a closed caption decoder for a student with a hearing
impairment while viewing videotapes. Chapel Hill-Carrboro (NC) City
Schs., 27 IDELR 606 (OCR, 1997).
5. Use of tutorial software and a laptop computer for a student with
narcolepsy. Bacon County (GA) Sch. Dist., 29 IDELR 78 (OCR, 3/13/98).
6. Use of an Arkenstone scanner to scan and read text for a learning
disabled student. However, OCR determined that there was no violation
of section 504 when the student was not allowed to use the device for
a State reading exam. Alabama Dept. of Educ., 29 IDELR 249 (OCR,
4/10/98).
VII. SYSTEMIC ENFORCEMENT OF RIGHTS UNDER IDEA AND SECTION 504
Anyone who has been a special education advocate for long is likely to
encounter issues which go beyond the needs of the individual student.
Whether it is a school policy which applies to all students or a lack
of resources which is affecting a large number of students, the use of
an impartial hearing for one student is not likely to resolve the
larger issue. Are there less adversarial or more efficient ways to
address these concerns?
A. Complaint to the Office for Civil Rights
As noted above, the U.S. Department of Education's Office for Civil
Rights (OCR) enforces section 504. Complaints may be filed concerning
individual students or groups of students. However, OCR will not
investigate cases which question the decision of the Section 504 Team
on such matters as the accommodations or services to be provided.
Those cases will need to go through the impartial hearing process. See
Beverly (MA) Pub. Schs., 29 IDELR 981 (OCR 1998); Glendale (AZ) High
Sch. Dist., 30 IDELR 62 (OCR 1998).
OCR will accept cases alleging procedural violations, lack of
accessibility, failure to provide agreed upon services and claims of
discriminatory treatment. Additionally, because all students
classified under IDEA are also covered by section 504, a failure to
provide services identified in an IEP is also a violation of section
504, which OCR will investigate. See OSEP Policy Letter to Anonymous,
18 IDELR 1037 (4/6/92).
From the parents' perspective, one of the advantages of an OCR
complaint is that OCR will conduct the investigation. On the other
hand, as a result, the process is not in the parents' direct control.
Of benefit to both parents and schools, OCR will attempt to resolve
the complaint through early dispute resolution.
B. Complaint Resolution Procedure
The Complaint Resolution Procedure (CRP) is now under IDEA Part B
regulations at 34 C.F.R. §§ 300.660 - 300.662. Until 1992, the process
was set out in the Education Division General Administrative
Regulations (EDGAR) at Id. §§ 76.1 - 76.902, and, therefore, was known
as the EDGAR complaint process.
Each state must establish procedures for investigating and resolving
complaints concerning the provision of special education services
under IDEA. Id. § 300.660(a). An organization or individual may file a
complaint. The complaint must be signed and in writing. It must
include a statement that the school has violated IDEA and the facts
upon which that statement is based. The complaint must be filed within
one year, unless the violation is ongoing. If the complaint is
requesting compensatory services, it must be filed within three years.
Id. § 300.662.
The state educational agency must conduct an independent on-site
investigation, if necessary. It must allow the complaining party the
opportunity to submit additional information, and issue a written
decision within 60 days. Id. § 300.361(a). But, there must be a
procedure to allow for extensions of time in exceptional
circumstances. Id. § 300.361(b). The CRP cannot be used for issues
where there is an impartial hearing pending or an impartial hearing
decision, unless the complaint concerns implementation of the
decision. Id. § 300.361(c).
The advantage of the CRP is that if the state finds a violation of
IDEA, it must not only fashion a remedy for the individual student, it
must also address the future provision of services for all children in
the school district. Appropriate remedies for individual students can
include monetary reimbursement and compensatory services. Id. §§
300.360(b) and 300.362(c). On the other hand, as with OCR complaints,
the process is out of the parents' direct control.
One court has determined that the CRP was an administrative proceeding
for which attorneys' fees are available under IDEA. Upper Valley
Association for Handicapped Citizens v. Blue Mountain Union School
District No. 21, 973 F. Supp. 429 (D.Vt. 1997). The court's reasoning
is consistent with cases which have required the exhaustion of the
EDGAR (now CRP) process before bringing a court action under IDEA for
some systemic violations, if that process will be effective in
resolving the issue. See Hoeft v. Tucson Unified School Dist., 967
F.2d 1298 (9th Cir. 1992); Emma C. v. Eastin, 26 IDELR 1279 (N.D.Cal.
1997).
C. Class Action or Other Litigation
As noted in the section on due process, IDEA includes an
administrative procedure to follow prior to filing a court action.
Courts have consistently required that these procedures be exhausted
before a court action can be filed. Riley v. Ambach, 668 F.2d 635 (2nd
Cir. 1981); Thomas v. East Baton Rouge Parish Sch. Bd., 29 IDELR 954
(M.D. La. 1998). Parents cannot by-pass the exhaustion requirements
under IDEA by attempting to file a court action under section 504, or
any other federal law, if the case is one which could be brought under
IDEA. 20 U.S.C. § 1415(l).
However, courts have recognized that there are circumstances where
exhaustion is not required under IDEA. In Riley v. Ambach, the court
recognized that exhaustion would not be required if it would be
"plainly inadequate." It gave the following examples: (1) exhaustion
would cause delay which would effectively deny the relief sought; (2)
the agency may not have the authority to grant effective relief; (3)
the administrative body predetermined the issue; and (4) exhaustion
would otherwise prove futile. Riley at 640-641. Courts have also held
that where schools have denied access to IDEA's procedural safeguards,
a separate action could be maintained under 42 U.S.C. § 1983 to
enforce the rights that were denied under IDEA. See Quackenbush v.
Johnson City School Dist., 716 F.2d 141 (2nd Cir. 1983), cert. denied,
465 U.S. 1071 (1984).
Courts have used these concepts in class actions. In class actions
which allege that there is widespread systemic failure to comply with
IDEA, particularly where there had been some attempt to at least
exhaust for some students, courts have excused the failure to exhaust.
Jose P. v. Ambach, 669 F.2d 865 (2nd Cir. 1982); Blackman v. District
of Columbia, 28 IDELR 1053 (D.D.C. 1998).
VIII. CONCLUSION
Assistive technology offers many students with disabilities the
ability to meet their potential. With the appropriate AT available,
even students with very severe disabilities can often participate
fully in educational activities to prepare them for employment and
independent living.
The issues involving AT and students with disabilities are clearly at
the "cutting edge." The AT devices being sought for students are often
items that did not even exist a few years ago. And the legal
requirements regarding AT have, in many cases, emerged only very
recently. It is our hope that this booklet will ensure that the
attorney or advocate will be well-prepared to advocate for AT under
both IDEA and section 504.
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