In this issue......
OBTAINING ASSISTIVE TECHNOLOGY FROM THE SCHOOLS: Limiting the Impact of the
Rowley Decision Under Recent IDEA Changes and through a Fresh Look at Section 504
analysis under idea
analysis under section 504
analysis of rowley in light of this section 504 standard
SPECIAL FEATURES:
proposed social security and ssi regulations will improve work incentives
russman briefs available

INTRODUCTION

        Anyone seeking assistive technology (AT) from the special education system must confront the Supreme Court’s decision in Board of Ed. of the Hendrick Hudson Sch. Dist. v. Rowley, 458 U.S. 176 (1982), interpreting the meaning of a free “appropriate” public education (FAPE) under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq. We hope this article will stimulate discussion on how to overcome the restrictive “educational benefit” test of Rowley, paving the way for increased access to AT and other services for students with disabilities.

        Do the most recent amendments to IDEA provide a basis for overcoming the limitations of Rowley? Will Section 504 of the Rehabilitation Act of 1973 be of greater assistance than advocates have thought in the past? Would Amy Rowley have gotten her sign interpreter if the case had been brought under Section 504? If a similar case were brought today under Section 504, seeking to obtain the latest in technology for a student like Amy, would the family be successful? We believe the answers to all these questions should be yes.

        We will start by reviewing the Supreme Court’s decision in Rowley and amendments to IDEA which tend to limit or modify that decision’s impact. Next, we will review Section 504's standard for providing a FAPE. Finally, we will revisit the lower court decisions in Rowley, which were based on the definition of FAPE from the Section 504 regulations and provide a framework for analysis under 504.

        The parents of Amy Rowley, a deaf student with minimal residual hearing and excellent lip reading skills, sought the services of a full-time sign 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 and was “advancing easily from grade to grade.” 458 U.S. at 184-185, 215. The Supreme Court held that IDEA’s obligation to provide a FAPE to students with disabilities did not mean that school districts must maximize a student’s potential or provide the best education possible. Id. at 199. When a child is 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 a FAPE. Id. 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].” Id. at 203, note 25 (emphasis added).

        Given this limitation, how can one obtain AT under IDEA when a school district argues that a child is currently receiving an appropriate education under the Rowley standard? As noted in our booklet, FUNDING OF ASSISTIVE TECHNOLOGY – The Public School’s Special Education System as a Funding Source: The Cutting Edge (June 1999), the 1997 amendments to IDEA (IDEA ‘97) provide some basis for expanded services because of changes made to the transition services requirements and to the definition of an appropriate education.

        Transition services are defined as a coordinated set of activities, designed within an outcome oriented process, promoting movement from school to adult living. 20 U.S.C. § 1401(30). Therefore, when considering transition services, the inquiry should not be limited to issues of academic progress. Rather, the issues should be what the goal will be for this student as an adult, where the student is now in reaching that goal, and what the student will 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.

        IDEA ‘97 modified the transition requirements. Now, starting 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 [AP] courses or a vocational education program.” Id. § 1414(d)(1)(A)(vii)(I) (emphasis added). Amy Rowley was advancing from grade to grade even though she was missing half of what was said in her classes. How would she have faired in an AP class if she missed half of what was occurring? What if she needed the sign interpreter or real time captioning to pass AP History? Since transition planning may now include AP courses, if she needed one of those services to pass the class, she should be entitled to it. Moreover, under the transition mandates, if Amy’s goal (i.e., the outcome sought) includes college attendance, it may not be enough to provide her services to enable her to simply pass the AP course. She should be entitled to services to prepare her for the academic, social and living demands of college.

        Also, the scope of an appropriate education has been expanded. IDEA ‘97 added that an appropriate education should prepare students for “employment and independent living.” Id. § 1400(d)(1)(A). 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.

        Therefore, in determining whether a student is benefitting from an education, the analysis cannot be limited 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 took what already applied 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. Again, if Amy’s goal was college, she should be entitled to services to prepare her, not only for the academic demands of college, but also for the social demands and living arrangements she will experience in college.

        If the Rowleys brought their case under Section 504, would they have obtained the interpreter? Section 504 prohibits discrimination in any program or activity receiving federal financial assistance. In relevant part, the law states:

No otherwise qualified individual with a disability ... 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).

Section 504 has its own definition of FAPE:

The provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped [current regulations still use the term “handicapped”] persons as adequately as the needs of nonhandicapped persons are met and (ii) are based on adherence to procedures [under these provisions]. 34 C.F.R. § 104.33(b)(1).

This definition is significantly different from IDEA’s because it is drawn from Section 504's anti-discrimination background.

        Why didn’t the Rowleys add a claim under Section 504 when they brought their case? A little history may help. The Rowleys were not the only ones who failed to look to Section 504 for assistance in special education cases. Section 504 seemed to be the forgotten orphan. Although Section 504 was passed in 1973, the regulations did not come out in final form until 1977, soon before IDEA went into effect in 1978. Because of their similarity, and the perceived greater rights under IDEA, Section 504 was rarely invoked.

        In our view, it was not until the 1990 passage of the Americans with Disabilities Act that Section 504 began to get much attention. Additionally, two memoranda from the U.S. Department of Education around this time increased interest in Section 504. First, was a policy memorandum from the Office for Civil Rights (OCR), which enforces Section 504, explaining the differences between IDEA and Section 504. OCR Senior Staff Memorandum, EHLR 307:01 (OCR 10/24/88). Second, was a joint memorandum from OCR and the Office of Special Education and Rehabilitative Services (OSERS), which enforces IDEA, on the interplay between Section 504 and IDEA for students with attention deficit disorder. U.S. Department of Education Joint Policy Memorandum, 18 IDELR 116 (9/16/91).

        Another limit to the use of Section 504 may be a Supreme Court decision which can be viewed as the Section 504 equivalent of Rowley. That case, Southeastern Community College v. Davis, 442 U.S. 397 (1979), upheld a college’s decision not to allow an individual with a hearing impairment to enroll in an associate’s degree program in nursing. The Court held that the individual was not a qualified individual with a disability because she could not meet the technical standards for admission into the college’s program, as required by 34 C.F.R. § 104.3(k)(2).

        At issue was the Court’s interpretation of Section 504 regulations applicable to colleges, not those applicable to elementary and secondary schools. Dicta in the decision, however, has been read by many to build in a reasonable accommodation requirement (or limitation) to all of Section 504. The relevant language from the Court’s opinion is:

If [the Section 504] regulations were to require substantial adjustments in existing programs beyond those necessary to eliminate discrimination against otherwise qualified individuals, they would do more than clarify the meaning of § 504. Instead they would constitute an unauthorized extension of the obligations imposed by [Section 504]. 442 U.S. at 410 (emphasis added).

        A subsequent Supreme Court decision, Alexander v. Choate, 469 U.S. 287 (1985), reaffirmed this perception. The Court found that reducing annual inpatient hospital stays under Medicaid did not violate Section 504, even though individuals with disabilities were disproportionately affected. The Court relied on Davis for the proposition that “[s]uch a ‘fundamental alteration [advocated by plaintiffs] in the nature of the program’ was far more than the reasonable modifications the statute or the regulations required.” 469 U.S. at 300 (quoting Davis, 442 U.S. at 410).

        OCR was confronted with this interpretation several years ago. OCR Policy Letter to Zirkel, 20 IDELR 134 (8/23/93). Professor Zirkel asked whether OCR recognized that Section 504's FAPE standard “implicitly incorporates a reasonable accommodation, reasonable modification, or other such cost-conscious limitation.” Id. at 135. If not, how does such an interpretation square with the Supreme Court’s decisions in Davis and Alexander? He urged OCR to read such a limitation into Section 504's FAPE requirements to more accurately reflect Congressional intent “as decided by appropriate judicial authority.” Id. at 136. OCR’s response was a surprise:

The key question in your letter is whether OCR reads into that Section 504 regulatory requirement for a (FAPE) a “reasonable accommodation” standard, or other similar limitation. The clear and unequivocal answer to that is no. Id. (emphasis added)

        As support, OCR reviewed the regulatory history, noting the regulation was subject to Congressional review and received no objections. Accordingly, it is OCR’s opinion

that the FAPE requirement in the Section 504 regulation does reflect congressional intent. Since that time there have been no actions by the Congress, the Federal courts, or the agencies and administrative tribunals of the executive branch that would require OCR to modify § 104.33, or its interpretation thereof, to allow for some limitation of the FAPE guarantee. Id.

        OCR reviewed other sections of this regulation, noting the provisions governing employment, as well as those governing higher education and vocational education, include a “reasonable accommodation” limitation. The provisions governing elementary and secondary education do not. OCR concluded this was intentional:

We conclude therefore that the regulation writers intended to create a different standard for elementary and secondary students than for employees or postsecondary/vocational students. Id.

        OCR carefully distinguished Davis and Alexander. First, the provisions interpreted in those cases were not those applicable to elementary and secondary education. And, as noted above, those provisions do not include the reasonable accommodation limitation. Second, OCR concluded that the caution in Davis that the Section 504 regulations should not “require substantial adjustments to existing programs beyond those necessary to eliminate discrimination,” 442 U.S. at 410, “has no impact on 34 C.F.R. § 104.33(a) because that section does not require changes beyond those necessary to eliminate discrimination.” Zirkel at 137. OCR continued:

If a school district is meeting the needs of children without disabilities to a greater extent than it is meeting the needs of children with disabilities, discrimination is occurring. By meeting the educational needs of children with disabilities as adequately as it meets the needs of other children, the school district is eliminating discrimination, and even substantial modifications required to bring about this result are not suspect under the Davis decision. Id. (emphasis added).

        Similarly, OCR distinguished a series of lower court cases cited by Professor Zirkel:

Those cases that determine what a school district must provide to an elementary or secondary student with a disability under Section 504 restate the Davis interpretation: Section 504 is a statute that prohibits discrimination, rather than requiring affirmative action to overcome a student's disability. ... This coincides with OCR’s interpretation set forth above that the FAPE regulation requires school districts to meet the individual needs of all students to the same extent, though not necessarily by providing the same programs or services. Id.

        Finally, OCR determined that its investigations under Title II of the ADA would be governed by the same standard because “Title II shall not be construed to apply a lesser standard than the standards applied under” Section 504. Id. at 137-38.

        How does this apply to our analysis of Rowley? We believe the OCR opinion letter would require the school district, under Section 504, to provide Amy an individual sign interpreter under an analysis similar to the district court’s in Rowley.

        The district court ruled for the family, finding the school district did not provide a FAPE to Amy. Even though the case was brought under IDEA, the court relied on Section 504's definition of FAPE. As noted above, under Section 504 a FAPE is defined as:

The provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based on adherence to procedures [under these provisions]. 34 C.F.R. § 104.33(b)(1).

        The court set up three possible tests to determine whether a student was receiving a FAPE under this definition. The first two tests were:

An “appropriate education” could mean an “adequate” education that is, an education substantial enough to facilitate a child’s progress from one grade to another and to enable him or her to earn a high school diploma. An “appropriate education” could also mean one which enables the handicapped child to achieve his or her full potential. 438 F.Supp. at 534.

Notably, the first standard sounds very similar to the standard ultimately adopted by the Supreme Court under IDEA. The district court rejected these two options and found a middle ground:

Between those two extremes, however, is a standard which I conclude is more in keeping with the regulations, with the Equal Protection decisions which motivated the passage of the Act, and with common sense. This standard would require that each handicapped child be given an opportunity to achieve his full potential commensurate with the opportunity provided to other children. Id.

The court noted that using this standard would not be easy.

It requires that the potential of the handicapped child be measured and compared to his or her performance, and that the resulting differential or “shortfall” be compared to the shortfall experienced by non-handicapped children. Id.

This standard sounds remarkably similar to OCR’s interpretation of the meaning of FAPE under Section 504.

        Applying this standard to Amy, the court held the school district had not provided Amy with a FAPE. The court found the district established that while “Amy is receiving an ‘adequate’ education, since she performs better than the average child in her class and is advancing easily from grade to grade,” it established little more. Id. at 534. Again, for the Supreme Court, this was enough under IDEA. However, the district court noted Amy, who was very bright, understood considerably less of what went on in class than if she were not deaf. Accordingly, she was “not learning as much, or performing as well academically, as she would without” her disability. Id. at 532. The court noted Amy’s educational shortfall is greater than that of her peers and is inherent in her disability. “It is precisely the kind of deficiency which the Act addresses in requiring that every handicapped child be given an appropriate education.” Id at 535. Therefore, the court mandated the services of an interpreter.

        Noting that “this case is about Amy,” the Second Circuit affirmed, but limited its decision to the facts of her case. Rowley v. Bd. of Ed. of Hendrick Hudson, 632 F.2d 945 (2d Cir. 1980). The Second Circuit agreed with the district court that Amy needed “a sign language interpreter in her classroom to enable her to have the same educational opportunity as her classmates.” Id. Again, this standard is very similar to OCR’s interpretation of Section 504. Holding IDEA had its own definition of appropriate, the Supreme Court reversed. The Supreme Court refused to follow the analysis of appropriate based on Section 504, established by the lower courts, and set out its own test for appropriate based on IDEA. However, why wouldn’t the lower courts’ interpretations of Section 504's definition of FAPE still be good law in a case brought under Section 504 instead of IDEA?

        Given the similarities between the standard established by the district court and the Second Circuit, based on their interpretation of the Section 504 regulation, and that established by OCR, it is very likely that Amy would be entitled to her interpreter under Section 504. The test established under Section 504 is to eliminate discrimination, which is defined as equalizing educational opportunity based on one’s disability. In such cases, even substantial modifications to a program may be required. For a student such as Amy, therefore, who is missing a significant amount of material each day because of her disability, whether she is receiving passing grades would be irrelevant to whether she was receiving a FAPE under Section 504.

        Fast forward Amy’s case to the present. New technology, combining existing computer and peripheral hardware, and software based on word processing, voice recognition and multi-tasking, may revolutionize the education of students who are deaf or hearing impaired. The teacher speaks into a microphone, the student’s computer (laptop or desktop) simultaneously converts the speech into real-time text on the computer screen and, if desired, sign language. If the student has residual hearing, the student can also simultaneously receive the teacher’s voice into a cochlear implant or FM device. While this technology will not entirely replace classroom interpreters, the possibilities seem remarkable. Because of the multi-sensory approach, this technology also shows promise for teaching students who are deaf to better read and write English. This technology can be viewed at www.teachthedeaf.com. Given the standard enunciated under Section 504, this technology could very well be obtained for a student, even if she is passing from grade to grade.

        Nearly 20 years after Rowley, advocates are still grappling with the apparent limitations it imposed. 1997 amendments to IDEA offer a path around the Rowley limitation when the special interventions (including AT) are connected to either a transition goal or a long-term need to prepare for a life of independence. Moreover, a fresh look at Section 504, as interpreted by OCR, provides an additional path around Rowley, even in those situations where the interventions sought could be described as substantial modifications to the program.

On August 11, 2000, the Social Security Administration (SSA) published in the Federal Register proposed Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) regulations. These proposals represent another positive step in the efforts of SSA to encourage more individuals to work without quickly losing benefits. SSA proposes to:

• Make automatic adjustments each year to the substantial gainful activity level (currently $700) for individuals with impairments other than blindness, based on any increases in the national average wage index;
  
• Increase (from the current $200 to $530) the minimum amount of monthly earnings that SSA considers as showing that an SSDI recipient has worked a trial work month as part of a nine-month trial work period, and automatically adjust the amount annually based on increases in the national average wage index; and,
  
• Increase the maximum monthly (from $400 to $1,290) and yearly (from $1,620 to $5,200) Student Earned Income Exclusion amounts they use in determining SSI eligibility and payments, and automatically adjust the monthly and yearly exclusion amounts annually based on increases in the cost of living index.

The proposed regulations may be found at www.ssa.gov/regulations/rin0960_af12.htm. The deadline for sending comments to SSA is October 10, 2000.

The proposed regulations may be found at www.ssa.gov/regulations/rin0960_af12.htm. The deadline for sending comments to SSA is October 10, 2000.

        Russman v. Bd. of Educ. City of Watervliet involves a child with a disability’s right to attend private school and receive special education services. The family sought services on-site at a parochial school so their daughter could participate in an inclusion program. The case has been to the Supreme Court (521 U.S. 1114) and back. Because of changes to IDEA in 1997, only two issues remain. First, does New York require services to be provided based on the individual needs of the student or does the district have unfettered discretion to decide how to provide services? Second, does a district violate the Free Exercise Clause when it treats students attending secular private schools differently from students attending parochial schools? The case is slated for oral argument in the Second Circuit this Fall. The parents’ brief and an amicus brief, drafted in part by Ron Hager of Neighborhood Legal Services, as a part-time Protection and Advocacy for Individual Rights (PAIR) attorney, are in our court documents library. The district’s brief will be added when it arrives.

We have designed a word-searchable digest, using computer technology, to store and retrieve hearing decisions and other administrative documents. We also have indexed more than 400 documents from more than 100 pending and decided court cases. All documents are available through our AT Resource Library. Please send us your hearing decisions, briefs and other documents involving AT.

Please send information to:                              TEL: (716) 847-0650
Attn.: Diane Dustin                                             FAX: (716) 847-0227                  e-mail: atproject@nls.org
Neighborhood Legal Services, Inc.                  TDD: (716) 847-1322
Ellicott Square Building                                      Web Page: www.nls.org
295 Main Street, Rm 495
Buffalo, NY 14203

- Medicaid and Persons With Disabilities:
Special Medicaid Eligibility Provisions for Persons With Disabilities

- New Obligations Under Section 508 of the Rehabilitation Act

The AT Advocacy Project will provide nationwide services to PAAT projects including technical assistance to advocates wanting to access funding for assistive technology for individuals with disabilities.

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