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Funded through a grant from the National Institute on
Disability and Rehabilitation Research,
U.S. Department of Education, under contract number H224B990002. The opinions expressed 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.
Volume VII Issue 1 Spring 2002 |
Copyright 2002 Neighborhood Legal Services, Inc.
In this issue ...
Special Education Revisited: An Assistive Technology Funding Source for Students with
Disabilities
SPECIAL EDUCATION LAW: THE BASICS
AT IN THE SCHOOLS - WHAT IS IT?
HOW TO OBTAIN AT FROM THE SPECIAL EDUCATION SYSTEM
APPEALS
SECTION 504 OF THE REHABILITATION ACT
OBTAINING AT UNDER SECTION 504
Special Features:
SPECIAL EDUCATION RESOURCES ON THE WEB
A VICTORY FOR BENEFICIARIES OF HMO PLANS
WESTSIDE MOTHER’S IS REVERSED
Special Education Revisited
An Assistive Technology Funding Source for Students with Disabilities
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 to benefit from 21st century technology. Similarly, items like augmentative communication devices and FM systems offer students with speech or hearing impairments the ability to fully participate in school. 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.
Our first special education article appeared in the August 1996 issue of AT Advocate. Three later newsletters and part of a fourth address this topic. Materials from these earlier newsletters are combined in this updated article, which will address obtaining AT from the public schools under both the Individuals with Disabilities Education Act (IDEA) and section 504 of the Rehabilitation Act. We will give a general overview of both federal laws, with specifics on obtaining AT. For a comprehensive review of IDEA and section 504, see our booklet from the Funding of AT series, The Public School’s Special Education System as a Funding Source: The Cutting Edge (available on our website at www.nls.org/specedat.htm). The second edition of this booklet will be available later this year.
SPECIAL EDUCATION LAW: THEBASICS
The federal rules governing special education are in IDEA and in regulations. 20 U.S.C. §§ 1400 et seq., 34 C.F.R. Part 300. The IDEA was amended in 1997 (IDEA ‘97) and implementing regulations were published in the federal register on March 12, 1999. 64 Fed. Reg. 12406. IDEA ‘97 enhanced the services available to children with disabilities, strengthened the role of parents, and increased the use of AT to ensure an appropriate education.
To qualify for services, a child must have a disability, such as a speech, orthopedic, hearing or visual impairment, mental retardation, or a learning or emotional disability, which interferes with the ability to benefit from a regular education program and requires special education and related services. 20 U.S.C. § 1401(3). The IDEA guarantees eligible children a free appropriate public education (FAPE). Since all special education services, including AT, must be free, family income is never a factor. A school district must ensure that the special education services a student needs are provided. This article applies to students ages 3 through 21, or until they receive a regular high school diploma if before age 21. Part C of IDEA, which we do not discuss, covers children from birth through age two and includes coverage for AT devices and services. Id. § 1432(4)(E)(xiii).
Special education is specially designed instruction to meet a student’s unique needs. It includes assistance by a special education teacher to the student or to the regular education teacher. It can occur in a regular class, a resource room, a special class for all or part of the day, or in a special school. "Specially designed instruction" includes adapting the "content, methodology, or delivery of instruction" to meet the student’s needs and to ensure access to the general curriculum. 34 C.F.R. § 300.26(b)(3) (emphasis added).
Related services are developmental, corrective and support services required to benefit from an education. They include, among others, occupational and physical therapy, speech pathology, counseling, and health services. 20 U.S.C. §1401(22); 34 C.F.R. § 300.24(a). In Cedar Rapids Community Sch. Dist. v. Garret F., 526 U.S. 66 (1999), the U.S. Supreme Court ruled that a school was required to provide a ventilator dependent student with one-to-one school health services. In a comment that extends far beyond the issues in Garret F., the Court noted that schools "cannot limit educational access simply by pointing to the limitations of existing staff. ... The IDEA requires school districts to hire specially trained personnel to meet disabled student needs." 526 U.S. at 69.
Regarding the definition of "appropriate," in Board of Education v. Rowley, 458 U.S. 176 (1982), the Supreme Court ruled that a school is not required to provide the "best" education or one designed to maximize potential. However, the program must be based on the child’s unique needs and be designed to enable the student to benefit from an education. Therefore, when seeking AT for a student, it is important to avoid phrases like "best" or "maximize." Rather, discuss how the AT will enable the student to benefit from an educational program.
The IDEA requires that students receive special education services in the least restrictive environment. Removal from regular classes should only occur when a child cannot be successfully educated in regular classes with supplemental services. 34 C.F.R. § 300.550(b)(2). If removed for part of the day, the student must still be educated with nondisabled students as much as possible. Pursuant to IDEA ‘97, students with disabilities cannot be removed from "age-appropriate regular classrooms solely because of needed modifications in the general curriculum." Id. § 300.552(e).
IDEA ‘97 also defines supplementary aids and services to include aids, services and other supports, which 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. 20 U.S.C. § 1401(29). These supports are to be provided in other settings such as extracurricular activities. 34 C.F.R. § 300.306. Since AT devices and services are included in this definition, it is now clear that a student who needs an alternative communication system, for example, should be able to use that system in after-school and other nonacademic functions.
The child’s needs and the services to
be provided must appear in a written individualized education program (IEP). It must be
developed at a meeting with a group of people, including the parents, who are
knowledgeable about the child. The parents are considered "equal participants"
with school officials in developing the IEP. 34 C.F.R. Part 300, Appendix A, Quest. 5. The
IEP team must 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)(ii). 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).
Beginning at age 14, the IEP must include the transition service needs related to the
child’s course of study under each applicable section of the IEP, such as
"participation in advanced-placement courses or a vocational education program."
Beginning at 16, or younger if appropriate, actual transition services are to begin,
including any responsibilities of other agencies to provide services. Id. §
1414(d)(1)(A)(vii).
The IEP must specify the placement, all special education services, any supplementary aids or related services, and how often each will be provided. The IEP team must also consider, for all students, whether the student requires AT. Id. § 1414(d)(3)(B). The team must review the IEP annually and more often if requested by a parent or teacher.
AT IN THE SCHOOLS -- WHAT IS IT?
Under IDEA’s AT definitions, an AT device is one used to maintain or improve functional capabilities of a person with a disability. An AT service is one that assists in the selection, acquisition or use of an AT device. It includes evaluations, adaptations, maintenance or repair of AT devices. It also includes training or technical assistance for professionals, the individual or, where appropriate, the family. Id. §§ 1401(a)(25) & (a)(26); 34 C.F.R. §§ 300.5 & 300.6.
As indicated in legislative history to the Technology Related Assistance for Individuals with Disabilities Act, from which IDEA borrowed its definitions, the terms were intentionally made broad "to provide maximum flexibility to ... address the varying needs of individuals ... with all categories of disabilities and to make it clear that simple adaptations to equipment are included ... as are low and high technology items and software." Senate Report No. 100-438, 1988 U.S. Code Cong. & Admin. News, p. 1405. The IDEA’s legislative history stresses that AT is "an important component" in meeting the needs of many students with disabilities. Moreover, advances in AT provide new opportunities for students to participate in educational programs. For many, AT will redefine an "appropriate placement in the least restrictive environment." House Report No. 101-544, 1990 U.S. Code Cong. & Admin. News, pp. 1730-31.
Comments to the 1999 regulations make it clear that AT includes the student’s personal needs for AT, such as "electronic notetakers, cassette recorders, etc.," and access to 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." 64 Fed. Reg. 12540.
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 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), or a closed circuit TV for a student who is blind. OSEP Policy Letter to Anonymous, 18 IDELR 627 (11/21/91). Comments to the 1999 regulations 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. 64 Fed. Reg. 12540, 12575.
The regulations specify that AT may be
considered as special education, related services, or supplementary aids and services to
ensure placement in the least restrictive environment. These services must be approved by
the IEP team and listed in the IEP. 34 C.F.R. § 300.308; OSEP Policy Letter to Anonymous,
29 IDELR 1089
(1/6/97).
HOW TO OBTAIN AT FROM THE SPECIAL EDUCATION SYSTEM
Send Request to the IEP Team: The IEP team must consider whether each student will need AT. If the team determines that a student does not require AT and the parents disagree, the parents can appeal. The parents can also independently request AT, as with any other special education service. Such requests should be made in writing to the IEP team. This starts the referral process to determine what is appropriate.
Evaluations at School District Expense: Like any 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).
Criteria for AT Approval: Under Rowley, the IEP team must approve an AT device or service if it is needed to ensure reasonable educational progress in the least restrictive setting. AT should be approved if it will enable a child to remain in a regular classroom. 34 C.F.R. § 300.550(b)(2).
Even when a student is making significant "academic progress," AT devices or services may still be needed to meet other educational needs. Orientation and mobility 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." Id. § 300.24(b)(6)(emphasis added). For students with other disabilities, travel training may be provided 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). The 1999 regulations note the importance of AT to allow students with disabilities to be transported with their nondisabled peers:
. . . 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).
To emphasize this point, IDEA ‘97 redefined an appropriate education to include preparation for employment and independent living. 20 U.S.C. § 1400(d)(1)(A). The U.S. Department of Education noted that "this change represents a significant shift in the emphasis of [IDEA]- to an outcome oriented approach" for students. 62 Fed. Reg. 55029.
A remaining question is whether the IEP team may list specific AT devices or software on the IEP. Many schools, based on a misreading of the Rowley case, have said no. Rowley actually requires a detailed discussion by the IEP team of the methodology to be used for the student, with input from the parents. As the Supreme Court stated, "the primary responsibility ... for choosing the educational method most suitable to the child’s needs, was left by the Act to [the] educational agencies in cooperation with the parents." 458 U.S. at 207 (emphasis added). Consistent with this requirement, the 1999 regulations amended the definition of special education to include a definition of "specially-designed instruction" which 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).
Other Issues
APPEALS
The Impartial Hearing: A
parent who disagrees with a proposed IEP or any other school district actions can request
an impartial hearing. 20 U.S.C. § 1415(b)(6). The parent can be represented by an
attorney or other advocate and can present witnesses and other evidence to support the
appeal. Id. § 1415(f). Impartial hearings are very complicated, making it advisable for
parents to contact an attorney or trained advocate if they believe it is necessary to
request a hearing.
The hearing officer’s decision is final, unless it is appealed. States may create a
second, state level of administrative review. In that case either the parents or school
have the right to appeal. Following the hearing decision or state level decision, if
applicable, either the parents or the school can appeal to state or federal court. Id. §
1415(g) & (i). If the parents prevail, their attorney has the right to reasonable
attorney’s fees from the school. Id. § 1415(i)(3).
Status Quo Protection: The child remains in the current educational placement during all appeals, 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. 64 Fed. Reg. 12616. Therefore, if last year’s IEP provided for a special computer and the new IEP eliminates it, requesting a hearing guarantees that the computer will be provided during the course of the appeal. However, a school may change the location of a child’s classroom within the school district. Id. Status quo also applies to children moving from one school to another within the state, so if a student moves and the new school does not recommend the computer, when the parents request a hearing, the new school must provide the computer during the appeal. OSEP Policy Letter to L. Rieser, EHLR 211:403 (7/17/86). However, status quo does not apply when a student moves to another state. OSEP Policy Memorandum 96-5, 24 IDELR 320 (12/6/95).
SECTION 504 OF THE REHABILITATION ACT
Children whose disabilities do not meet special education criteria, who still need special assistance, including AT, are covered by section 504 of the Rehabilitation Act. 29 U.S.C. § 794; 34 C.F.R. Part 104. Section 504 requires reasonable steps to ensure that students with disabilities have access to the school’s full range of programs and activities. If the student needs an AT device to fully participate in school activities, section 504 may require the school to provide it. Section 504 will, in many cases, also require payment for training, repairs and maintenance.
Over the years, the U.S. Department of Education’s Office for Civil Rights (OCR), which enforces section 504, has issued a number of rulings concerning 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 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 is an illustrative list of AT devices which could be funded by schools under section 504:
OBTAINING AT UNDER SECTION 504
Schools must develop procedures to determine section 504 eligibility and evaluate needs of children with disabilities not covered by IDEA. Schools may use special education procedures and the IEP to do this. If not, their procedures must include the following:
CONCLUSION
This article, in a brief overview format, has presented an up-to-date summary of the IDEA and section 504 of the Rehabilitation Act as they relate to a student’s right to obtain AT from the public schools. If you have questions about any of these issues, you should contact Ron Hager at the National AT Advocacy Project (716-847-0650 ext. 225, rhager@nls.org).
Special Education resources on the web
• U.S. Department of Education - www.ed.gov/index.jsp
This will take you to the highly indexed home page of this federal agency. Since so many of the individual sites have URLs (i.e., individual web addresses) that are too long to list, we leave the navigation to you.
• Center for Law and Education - www.cleweb.org
This longstanding national back-up center is a wealth of resources on federal educational issues, including special education issues. Many of their written materials are either available or are advertised on this site. This is a good starting place for anyone looking for legal resources on special education issues. Rather than try to improve on CLE’s superior list of links, we will leave it to you to go through them.
A VICTORY FOR BENEFICIARIES OF HMO PLANS
U.S. Supreme
Court’s Ruling Holds That Illinois’ Law, Allowing for an Independent Review
of Claims Denials, Was Not Preempted by Federal ERISA Law
On June 20, 2002, the Supreme Court, in the case of Rush Prudential HMO, Inc. v. Moran, ruled 5 to 4 that an Illinois state law which, in effect, allows for an independent review of a health maintenance organization’s (HMO’s) medical necessity decisions, is not preempted by the federal Employee Retirement Income Security Act of 1974 (ERISA). The case in dispute involved the HMO’s denial, on medical necessity grounds, of a request to approve a surgical procedure. Since the decision turned on the nature of review provided by the state law and not on the nature of treatment sought, this broad ruling should have application to a wide range of assistive technology cases in which HMO decision makers deny requests on medical necessity grounds.
For the many employee health benefit plans that are regulated by ERISA, the federal law provides that ERISA shall supercede or preempt any and all state laws insofar as they may now or hereafter relate to any employee benefit plan. 29 U.S.C. § 1144(a). However, under what is described as a "savings clause," ERISA specifically exempts from this preemption any state law which regulates insurance. Id. § 1144(b)(2)(A). The Moran decision held that section 410 of the Illinois HMO Act fell within the savings clause as a state law regulating insurance.
Commentators have suggested that this ruling could affect close to 70 million Americans covered by insurance that employers purchase from health insurance companies. However, the decision will not help the estimated 60 million people covered by self-insured plans, as ERISA’s savings clause does not protect that group.
The National AT Advocacy Project is hoping to do a private insurance publication in the upcoming year as part of its Funding of AT booklet series. This publication, dependent on our continued funding, would include a section outlining how ERISA impacts on appeals available to challenge denials of coverage.
WESTSIDE MOTHERS IS REVERSED
Sixth Circuit Holding Allows Plaintiffs to Enforce Medicaid’s EPSDT Provisions in Federal Court
In Westside Mothers v. Haveman, 133 F. Supp. 2d 852 (E.D. Mich. 2001), the District Court held, among other things, that Medicaid was only a contract between a state and the federal government, that spending power programs such as Medicaid were not the supreme law of the land, that the U.S. Supreme Court’s Ex parte Young doctrine was not available to the plaintiffs, and that even if it were, 42 U.S.C. § 1983 did not create a cause of action available to plaintiffs to enforce the Medicaid Act and its Early Prevention, Screening, Diagnosis and Treatment (EPSDT) provisions. In other words, Medicaid beneficiaries and providers could never enforce the provisions of the Medicaid Act in federal court. In a May 15, 2002 decision, the Sixth Circuit has reversed all of these holdings. The decision is reported at (Click Here) 289 F.3d 852 (6th Cir. 2002).
A longer summary of the decision appears on the National Health Law Project website at www.healthlaw.org/pubs/200205.westside.html. Congratulations to Jane Perkins of the National Health Law Project and her co-counsel for a job well done. Jane has provided us with a copy of her 6th Circuit brief for our resource library. Contact Wilma Castro (716-847-0650 ext. 262, wcastro@nls.org) if you would like a copy of this brief.
If you would like the AT Advocate Newsletter sent to you in a large-print or other alternative format, please let us know.
Update on The National Assistive Technology Resource Library
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:
Attn.: Jim Sheldon TEL: (716) 847-0650
Neighborhood Legal Services, Inc. FAX: (716) 847-0227
Ellicott Square Building TDD: (716) 847-1322
295 Main Street, Rm 495 e-mail: atproject@nls.org
Buffalo, NY 14203 Web Page: www.nls.org
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.
In our Upcoming Issues
“ SSI’s Plan for Achieving Self Support (PASS): An Overlooked AT Funding Source
(update of earlier article)
“ ERISA and Private Insurance Contracts: A Practical Guide for AT Advocates
NOTE: The AT Advocate is now issued quarterly
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