IMPACT
Volume IV Issue 4 March/April 1999Newsletter of the Assistive Technology Advocay Project
In this issue.....
.THE FEDERAL SPECIAL EDUCATION
REGULATIONS OF 1999
INTRODUCTION
A public school’s special education program can be an important funding source for assistive technology (AT). See April 1996 issue of IMPACT. Students with disabilities, including those with physical, mental and sensory disabilities, may need a wide range of AT devices to ensure that they fully benefit from their education.
We previously covered the 1997 amendments to the Individuals with Disabilities Education Act (IDEA ‘97). See September-October 1997 issue of IMPACT. The final regulations implementing the 1997 amendments were issued by the United States Department of Education on March 12, 1999, to be in effect May 11, 1999. Compliance is required upon the receipt of fiscal 1999 money, or by October 1, 1999, whichever is earlier. As all of the of the requirements of IDEA ‘97 are currently in effect, any of the regulations which merely restate IDEA ‘97's mandates must be implemented immediately.
This newsletter will summarize the major provisions of the 1999 regulations. We will specifically address those provisions that go beyond the mandates of IDEA ‘97. We will also address those provisions that will have impact on the funding of AT for children attending special education programs funded by the public schools. Since a number of our readers are attorneys or special education advocates, we are providing extensive references to both IDEA ‘97 and the new regulations.
PROVISION OF A FREE APPROPRIATE PUBLIC EDUCATION
When Does the Right to Special Education Services End?
Part B of IDEA covers students aged 3 through 21. The new regulations clarify that the right to a free appropriate public education 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 receiving a certificate of attendance or what is sometimes called the "Individual Education Plan (IEP) Diploma." Id. § 300.122(a)(3)(ii). A special education student’s graduation is considered a change of placement, requiring notice and the right to a hearing. Id. § 300.122(a)(3)(iii). However, a reevaluation of the student is not required prior to graduation. Id. at § 300.534(c)(2).
Definition of Disability
To be eligible for special education services, a student must have of one of several listed disabilities. Id. § 300.7(a)(1). The new regulations add Attention Deficit Disorder and Attention Deficit Hyperactivity Disorder as examples within the definition of other health impaired. Id. § 300.7(c)(9). They also permit a student to be classified as autistic, even if the characteristics of autism are manifested after age three. Id. § 300.7(c)(1)(ii).
The new regulations also clarify the eligibility of students advancing from grade to grade. Schools are not relieved of their obligation to these students simply because they are making academic progress. The decision of whether a student is still in need of services is to be made on an individual basis by the Committee on Special Education (CSE). 34 C.F.R. § 300.121(e). This is also true for students who have not yet been classified as special education students. Id. § 300.125(a)(2)(ii).
Scope of Special Education Services
IDEA ‘97 expands the scope of an appropriate education, adding that it should meet students’ unique needs and "prepare them for employment and independent living." 20 U.S.C. § 1400(d)(1)(A). The proposed regulations noted:
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:
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.
The Right to Summer School Services
The new regulations add services during the summer months, called "extended school year (ESY) services." Eligibility must be determined individually and services must be provided, if needed, to ensure a free appropriate public education (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 to the final regulations note that states are free to establish their own standards, as long as they do not deny ESY services to children who need them to receive a FAPE. Federal Register, p. 12576, 3/12/99. In most cases, a variety of factors may be considered "(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 New York, ESY services or 12-month programming is available if needed to prevent "substantial regression." See 8 N.Y.C.R.R. § 200.6(j)(1).
A Family’s Use of Private Insurance
The new regulations authorize the use of private and public insurance to pay for special education services. 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 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 from using 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. 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," including: (1) out-of-pocket expenses such as deductibles or copayments; (2) a decrease in available lifetime coverage; (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). Moreover, as with private insurance, a child’s right to a FAPE is not dependent upon whether parents consent to the use of public insurance. Federal Register, p. 12569, 3/12/99. Therefore, if parents refuse to give consent, the school is still responsible for providing the services.
Parents must often take a practical approach to the use of private insurance or Medicaid. Even though the law may not mandate the use of outside insurance, it may be easier to resolve issues in dispute if the parents agree to use outside insurance when it is available. Parents must be cautioned, however, particularly with respect to private insurance, that it is important to check with their insurance company to ensure that they are not adversely affected by their decision.
The Choice of Educational Methodology
The new regulations add to the definition of special education a definition for "specially designed instruction," which includes "adapting the content, 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 explain its importance:
[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. Federal Register, p. 12552, 3/1/2/99.
Instructional methodology does not need to be addressed in the IEPs of students not needing a particular methodology to receive educational benefit. In all cases, the CSE decides whether to address methodology in the IEP. Id.
The CSE must 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). If the CSE 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.
Comprehensive System of
Personnel Development
The United States Supreme Court recently observed that "IDEA requires school districts to hire specially trained personnel to meet a disabled student’s needs." Cedar Rapids Community Sch. Dist. v. Garret F., ___ U.S. ___, 119 S.Ct. 992, 999, fn.8 (1999). As part of its comprehensive system of personnel development, states must have a system to ensure sufficient personnel to meet the needs of its students with disabilities. 34 C.F.R. § 300.135. The comments to the new regulations note "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).
ASSISTIVE TECHNOLOGY
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 state that it is "mandatory for the IEP team [in New York, the CSE] 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. The decision about AT must be made when the IEP for the upcoming school year is finalized so the AT can be implemented at the beginning of the year. Federal Register, pp. 12590-91, 3/12/99. AT encompasses the student’s own personal needs for AT, 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.
The comments give examples of covered AT devices, such as captioning, computer software, FM systems and hearing aids for students with hearing impairments. 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. Id., pp. 12540, 12575. Orientation and mobility and travel training were added to the definition of related services. 20 U.S.C. § 1401(22); 34 C.F.R. §§ 300.24(b)(6) and 300.26(a)(1)(ii). Both services may be provided to teach students to move effectively and safely within the school, home and community.
The new regulations emphasize the use of AT to allow students with disabilities to be transported with 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 assume most children with disabilities will receive the same transportation as 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." Federal Register, p. 12551, 3/12/99 (emphasis added).
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 add to the definition of "parent counseling and training": "[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 this change is consistent with "the more active role acknowledged for parents" by IDEA ‘97. Federal Register, p. 12549, 3/12/99.
The new regulations also adopt several U.S. Department of Education, Office of Special Education Programs (OSEP) policies on using AT. They indicate schools may be responsible for providing AT in the home, or in other settings, if the CSE determines, on a case-by-case basis, the student will need AT in that setting to receive a FAPE. 34 C.F.R. § 300.308(b). As a corollary they note 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 outside of school. Federal Register, p. 12540, 3/12/99. The new regulations also state that although schools are not normally responsible for personal items, such as hearing aids or eyeglasses, if the CSE determines that a student needs such a device to receive a FAPE, the school must provide it. Id.
LEAST RESTRICTIVE ENVIRONMENT
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). The "general curriculum" is defined as the same curriculum as for nondisabled children. Id. § 300.347(a)(1)(i).
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 a student must fail in that environment before considering a more restrictive setting. Id., Part 300, App. A, Quest. 1. Placement decisions must be based on the student’s needs and not on such factors as the student’s classification, availability of services, "configuration of the service delivery system, availability of space, or administrative convenience." Id.
INDIVIDUALIZED EDUCATION
PROGRAM DEVELOPMENT
Developing the individualized education program (IEP) begins with a comprehensive, individualized evaluation of the student by the school. If the parents disagree with that evaluation, 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. U.S. Dept. of Education, Office of Special Education Programs (OSEP) Policy Letter to Hon. J. Fields, 2 Education for the Handicapped Law Report (EHLR) 213:259 (1989). Pursuant to the new regulations, schools may ask parents to give reasons for their disagreement with the school’s evaluation, but cannot require this. 34 C.F.R. § 300.502(b)(4). 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).
IDEA ‘97 strengthened the parents’ role in developing their children’s IEP. Parents are now members of the IEP Team (i.e., the CSE). Id. § 1414(d)(1)(B). However, 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 about such items as lesson plans and preparatory activities, and decision making about what will actually appear on the IEP. 34 C.F.R. § 300.501(b)(2).
The new regulations also make clear that decisions about the IEP should, as much as possible, be reached by consensus. Taking a vote is not considered 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. Id. Part 300, App. A, Quest. 9.
IDEA ‘97 adds the regular education teacher as a member of the CSE for any student who is or may be receiving services in the regular education classroom. 20 U.S.C. § 1414(d)(1)(B). 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. The school and parents are encouraged to reach agreement, in advance, concerning the regular education teacher’s involvement. 34 C.F.R. Part 300, App. A, Quest. 24. 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. For students with more than one regular education teacher, the school can determine which teacher attends. The school is strongly encouraged to obtain input from any teachers who will not be attending. 34 C.F.R. Part 300, App. A, Quest. 26.
The new regulations also clarify that the school representative on the CSE must have the authority to commit school resources and ensure that the services in the IEP will actually be provided. Id., Quest. 22. 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).
PRIVATE SCHOOL PLACEMENTS
IDEA ‘97 limited the amount school districts must spend on providing services to students enrolled by their parents in private schools. 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). However, states "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).
Under the quoted language, a state or school could choose to mandate services to all students who attend private schools. For example, New York has created a right to a free appropriate public education for all students with disabilities attending private or parochial schools. N.Y. Education 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 almost impossible to envision any AT which could be appropriately provided anywhere other than on site.
THE RIGHT TO CONTINUED SERVICES
WHEN AN APPEAL IS FILED
Under IDEA, if a an impartial hearing is requested, the student remains in the current educational placement (status quo) until the hearing and any appeals to the state level of review (in New York, the State Review Officer) and to court are completed. 20 U.S.C. § 1415(e)(3). What if a parent is only challenging part of the IEP? 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 pending resolution of a disagreement about other services. See Federal Register, p. 12610, 3/12/99.
What if the parents prevail at the State Review Officer level? If the school appeals to court, may it refuse to implement the state’s decision based on status quo? In that case, the school must implement the state’s decision. The new regulations clarify that if the state rules in the parents’ favor, that constitutes an agreement between the parents and state for purposes of status quo. 34 C.F.R. § 300.514(c).
CONCLUSION
Children with disabilities can benefit greatly from assistive technology that is available in educational settings. With the appropriate AT made available to a student, a school district may be able to meet IDEA 97's promise of helping "prepare them for employment and independent living."
Following the 1997 amendments to IDEA, New York’s State Education Department amended its regulations to conform to the law’s new provisions. We expect that the Education Department will now issue further clarifications in regulation or policy to conform to the changes brought about by the new regulations.
AT IN THE COURTS
PETITIONERS CHALLENGE STATE MEDICAID PRACTICE
OF DENYING APPROVAL OF CUSTOM MADE EQUIPMENT FOR
PERSONS RESIDING IN SKILLED NURSING FACILITIES
For several years now, the Assistive Technology Advocacy Project has confronted a practice of the State Department of Health (DOH) concerning approval of Medicaid funding for custom made equipment for persons who reside in skilled nursing facilities. The DOH, through its Office of Medicaid Management, has repeatedly denied funding for custom made equipment, such as power or manual wheelchairs, contending it is the obligation of the nursing facility to supply the item as part of its daily or "per diem" rate. The AT Advocacy Project, and its network of pro bono attorneys, has repeatedly appealed those decisions and obtained favorable fair hearing decisions for the items in question. Despite the many successful appeals, DOH’s practice has continued.
On April 23, 1999, Matter of Anthony Warner and Diane Sitarek v. N.Y.S. Department of Health was filed in State Supreme Court, Erie County, to challenge DOH’s practice and policy. In this Article 78 proceeding, the petitioners claim that DOH’s actions conflict with the state and federal laws and regulations that govern the Medicaid program. Specifically, they cite DOH’s own regulation, 10 N.Y.C.R.R. 415.26(i)(vii)(k), which states that a skilled nursing facility is responsible for providing ambulatory equipment, unless it is prescribed by a physician for the sole and regular use of a resident; and Medicaid Management Information System (MMIS) 86-0069, which states that custom made durable medical equipment is not covered by a nursing facility’s per diem rate. They contend that in cases such as those of the petitioners, where the individual seeks medically necessary equipment for his or her sole and regular use and it is not customarily stocked by the facility, the item should be approved and funded through the same prior approval process as used for persons who live in the community.
The petitioners in this case are represented by David R. Pfalzgraf, Jr. and R. Anthony Rupp III, of the Buffalo law firm, Hodgson, Russ, Andrews, Woods and Goodyear, Inc. and by Joseph A. Keleman of the not-for-profit, Western New York Law Center, Inc. The firm of Hodgson, Russ has been a leader in our pro bono referral project and has successfully handled several earlier cases in which nursing facility residents were denied medically necessary custom made equipment. They are representing the petitioners without charge.
Welcome to Neighborhood Legal Services’ data bank!
Do you have decisions of interest relating to assistive technology in the following areas? Medicaid, Medicare, Vocational Rehab, VA, Special Education, Physically Handicapped Children’s Program, Private Insurance, etc.
Other advocates can benefit from your experience. If you have fair hearing decisions or are involved in or have completed litigation in these areas, we want to know about it.
Please send information to:
FAX: (716) 847-0226
Attn.: Marge Gustas
e-mail: nls01@sprynet.com
Neighborhood Legal Services
Web Site: www.nls.org
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295 Main Street Room 495
Buffalo, NY 14203
(716) 847-0650
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If you would like the IMPACT
The New York AT Advocacy Project
Our Staff Members
Jim Sheldon, Supervising Attorney
Marge Gustas, Staff Paralegal & Coordinator of Pro Bono Project
Bill Mastroleo, Staff Attorney
Trish Weber, Staff Paralegal
Diane Dustin, Project Secretary
Marge is the only person who works full-time on the project. Jim, Bill, Trish and Diane also work part-time with the National AT Advocacy Project.
Callers who seek services from the New York
AT Advocacy Project should call Marge at
(716) 847-0655 ext. 256
— The American with Disabilities Act (ADA) and AT
— SSI and Family Law: Structuring Child Support & Alimony Settle- ments to Create Funding for AT
ADVOCATESIf you or one of your staff would be interested in
taking
a case pro bono to help individuals with a disability,
contact Marge Gustas at 716-847-0655 ext. 264.