The Public School's Special Education System as an Assistive Technology Funding Source: The Cutting Edge

THE PUBLIC SCHOOL'S SPECIAL EDUCATION SYSTEM AS A FUNDING SOURCE: The Cutting Edge

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 the 21^st century 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 [1] 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 Dis- abilities Act (the IDEA)[2] in light of what AT now offers to students with disabilities? Did these answers change under the 1997 amendments to the 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 (section 504)[3] 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 the IDEA and the 1999 regulations. They are also addressed in United States Department of Education policy letters that have been issued over the past 20 years.

The focus of this booklet is on the 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 the 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 the 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 to parents who 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 The Education for all Handicapped Children Act of 1975 (EHCA) and Public Law 94-142,[4] the IDEA was initially passed in 1975 and was effective on September 1, 1978.[5] Although the statute has been amended several times during this period, the basic provisions have remained the same. The IDEA is a sweeping statute. States are given extra money from the federal government to help meet the costs of educating students with disabilities, but in turn they must agree to comply with the terms of the law.

In June 1997, there were significant amendments to the IDEA (IDEA'97). The law, which passed both houses of Congress with near unanimous support, followed several years of debate. Several proposals that 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 can best be 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 the 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."[6]

On March 12, 1999, the U.S. Department of Education issued final regulations implementing IDEA'97.[7] The regulations incorporate changes made by IDEA'97, as well as longstanding interpretations of the IDEA by the U.S. Department of Education's Office of Special Education Programs (OSEP). All notes have been eliminated. Their content has either been incorporated into the text of the regulation, added within Appendix A (which replaces Appendix C), or included in the "Analysis of Changes and Comments," Attachment 1. Attachment 3 indicates what happened to each note. Attachments will not be included in the Code of Federal Regulations.

A. Free Appropriate Public Education

Part B of the IDEA guarantees that all students with disabilities aged 3 through 21 have the right to a "free appropriate public education" (FAPE).[8] (The concept of FAPE is both a term of art used in the IDEA and the standard by which a student's educational program is measured for legal adequacy.) However, state law may exempt students between the ages of three and five and 18 to 21 from coverage.[9] All services provided under the IDEA must be at no cost to the parents or student.[10] 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.[11]

The IDEA also includes a concept known as "zero reject." All children are entitled to a FAPE "regardless of the severity of their disabilities."[12] In Timothy W. v. Rochester N.H. School Dist.,[13] the First Circuit held that a school district must provide special education to a child with complex developmental disabilities, spastic quadriplegia, cerebral palsy, a seizure disorder, and cortical blindness, without requiring a demonstration that the child could benefit from special education. The court stated: "The Act mandates an appropriate public education for all handicapped children, regardless of the level of achievement that such children might obtain." In fact, the Act states a priority for providing services "to those children with the most severe handicaps." See also Williams v. Gering Public Schools,[14] where a student with profound retardation, who had a current developmental age of six months or less and who also suffered from congenital blindness and spastic quadriplegia was found not to require a residential placement, although the child could only receive a FAPE if placed in a 12-month pro- gram. While the district did not directly contest whether it was required to serve her, as in Timothy W., it contested the level of service it was required to provide her, given her disabilities.

For children between the ages of three and five, additional grants are available for preschool education, if the state meets the eligibility requirements for school aged children and has an approved plan which assures "a free appropriate public education for all children with disabilities aged three to five, inclusive" in the state.[15] The statute now allows a state to exclude from the requirements of the 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.[16] The right to a FAPE also ends when a student graduates with a regular high school diploma. This does not include students who have received a certificate of attendance or of graduation that is not a regular high school diploma. However, graduation is considered a change of placement, requiring notice and the right to due process.[17] It does not require a reevaluation.[18]

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.[19] 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.[20]

The 1999 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.[21] 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.[22]

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."[23] 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.[24]

When Congress enacted the IDEA, it did not use an objective measure to determine whether a student was receiving an appropriate education (one aspect of the FAPE standard). 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." However, in the Rowley case,[25] the United States Supreme Court set forth the standard for determining whether a student was receiving the appropriate education required by the 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."[26] 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 district must provide the "best" education or one designed to maximize a student's potential.[27]

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.[28] 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.[29] 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.[30]

Noting the importance of procedural safeguards in developing a student's program, the Court developed a two-part test to determine whether a program is appropriate. The test comes down to these questions. First, did the district comply with the IDEA's procedures? Second, was the IEP reasonably calculated to enable the child to benefit? 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 noted that "the primary responsibility for formulating the education to be accorded to [a child with a disability], and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents."[31] It then ruled that once a lower court "determines that the requirements of the [IDEA] have been met, questions of methodology are for resolution by the states."[32]

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. The Appendix lists the standards developed by most of the Circuit Courts in the country for determining whether the IEP is appropriate. A separate section of this booklet will more fully analyze the impact of Rowley in obtaining services from the school system.

The IDEA requires that all students receive their educational services in the least restrictive environment (LRE).[33] 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]

However, in determining the LRE for a student, the program must still be appropriate to meet the student's individual needs.[35] Accordingly, districts must have available a continuum of alternative placements, ranging from services in regular classes to separate classes, separate schools and even residential programs.[36] 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.[37] For cases addressing when it is appropriate to place a student in the neighborhood school see the Appendix.

As will be noted below, 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.

Daniel R.R. v. State Board of Education[38] is one of the leading cases opening the door to increased inclusion of children with disabilities in regular education classes. The U.S. Court of Appeals for the Fifth Circuit noted that Congress created a strong preference in favor of "mainstreaming," educating the student in the regular education classroom with supports. Ironically, the court determined in that case that it was not appropriate to include the child 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 noted, however, that the district 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 district must consider the broader educational benefit of contact with non-disabled students, such as opportunities for modeling appropriate behavior and socialization.

A district 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 district must ensure that the child is educated with non-disabled students to the maximum extent appropriate during the school day.

In Oberti v. Board of Educ.,[39] the Third Circuit applied the test established in Daniel R.R. and determined that the district did not comply with the LRE man- date. 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 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.[40]

The Ninth Circuit, in Sacramento City School Dist. v. Rachel H.,[41] 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."[42] For cases addressing the issue of whether the student has been placed in the least restrictive environment, please see the Appendix.

IDEA'97 fosters increased efforts to educate students with disabilities in the LRE. For example, as noted below, the IEP Team must consider whether and how the child can participate in the general curriculum[43] and the IEP must indicate the extent to which the student will not be educated with non-disabled peers.[44] Prior to this, the IEP was to indicate the opposite = the extent the student would be educated with non-disabled peers.

The 1999 regulations emphasize that students with disabilities cannot be removed from age-appropriate regular classrooms "solely because of needed modifications in the general curriculum."[45] 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. 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."[46]

States with a funding system that distributes money based on the type of setting in which a student is placed must have policies and procedures to ensure that the funding system does not result in placements which violate the LRE requirement. States with no such policies and procedures must assure the Secretary of Education that they will revise their funding mechanism as soon as feasible.[47]

The law also reduces the reliance on labeling when placing students in the special education system. The IDEA still requires that a student meet one of several listed conditions and, by reason thereof, require special education services in order to be found eligible under the IDEA. 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.[48] (This definition had previously applied to children aged three through five.) 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.[49]

The statute also, for the first time, contains a definition of "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 non-disabled peers to the maximum extent appropriate.[50] It clarifies that these supports are to be provided in other settings, in addition to the classroom, such as extracurricular activities.[51] As discussed below, AT devices and services are included in this definition. Therefore, it is now even more 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.

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."[52] The purpose of the regular education teacher's involvement in the IEP process is, at least in part, to help determine the necessary behavioral strategies, supplemental aids and services, program modifications and supports for school personnel.[53]

As noted below, any supplemental aids and services, and program modifications and supports for the school personnel must be listed on the IEP.[54] 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 teacher. Many times, because agreed to supports such as in-service training to 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 the IDEA for the failure to provide a service set out in the IEP[55]. As will be discussed later, section 504 also provides rights to students with disabilities in the school setting. Based on the definition of disability under section 504, any student classified under the IDEA is also protected by section 504. The U.S. Education Department's Office for Civil Rights (OCR), which enforces section 504, has held that the failure to implement the services agreed to in an IEP under the IDEA is also a violation of section 504, which it will enforce.[56] However, if the supports are not included in the IEP, none of these protections will readily apply.

The IEP is the focal point of the IDEA. In Rowley, the 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.[57]

In another decision, the Supreme Court called the IEP the "centerpiece of the [IDEA's] education delivery system."[58] It is obvious that the process of developing the IEP and the resulting document itself are more than mere technicalities. The Supreme Court quote underscores the role that Congress envisioned for the IEP.

From the beginning, the IDEA has given parents a critical role in the IEP process. In Rowley, the Supreme Court also noted that Congress intended to maximize parental involvement in the education of each child with a disability.[59] Districts 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."[60] The regulations allow a district to proceed without the parents in attendance only in the following circumstance:

A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. In this case the public agency must have a record of its attempts to arrange a mutually agreed on time and place such as=

The district may ensure parental participation by using individual or conference telephone calls.[62] At the meeting, the district 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.[63]

When the IDEA regulations were first developed, the U.S. Department of Education included Appendix C, a series of questions and answers concerning the IEP.[64] 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.[65]

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 the district did not view them as equal participants in the IEP process.[66]

IDEA'97 strengthened the parents' role even further. Perhaps only making explicit what should already have been obvious, districts 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.[67] Finally, parents are now members of the IEP Team.[68] If a different group within a district 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.[69]

The 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.[70]

The 1999 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.[71]

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 in- complete, the IEP cannot be appropriate.[72] Either the parents or the school staff may initiate an evaluation. In either event, before the district may evaluate a student for the first time, it must obtain parental consent to the evaluation. 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. Evaluations must be conducted before the initial provision of services.[73]

The evaluation must 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.[74] 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.[75] 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.[76]

No single procedure or criterion may be used.[77] 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."[78]

If the parents disagree with the evaluation obtained by the district, they may request an independent evaluation at district expense.[79] Parents should submit their request prior to obtaining the evaluation, but this is not required.[80] The district is allowed to ask the parents for the reasons they are disagreeing with the district's evaluation, but cannot require that the parent answer the question.[81] In either event, the district must, without unreasonable delay, either agree to pay for the independent evaluation or initiate a hearing to show its evaluations were appropriate.[82]

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.[83] Prior to any reevaluation, the district is now required to seek parental consent.[84] The district may proceed with the reevaluation without the parents' consent if it takes reasonable steps to obtain consent and the parents do not respond.[85]

Reevaluations must also be conducted before a student is declassified.[86] If the district 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.[87] Note that the regulations under section 504, which also cover all students identified under the IDEA, require a reevaluation before any significant change in placement.[88]

The IDEA requires that the IEP be developed at meeting with a specified group of people, including the parents.[89] The IEP Team must now be composed of the following members:

FUNDING OF ASSISTIVE TECHNOLOGY SERIES

Preface

Table of Contents

THE PUBLIC SCHOOL'S SPECIAL EDUCATION SYSTEM AS A FUNDING SOURCE: The Cutting Edge