Assistive Technology Legislation and Legal Issues

Assistive technology encompasses a broad range of services that are needed to ensure students with disabilities receive a free and appropriate education in the least restrictive environment. Although assistive technology is mandated by law and requires school districts to provide appropriate services and devices to students with disabilities, educators still face the challenges of providing effective assistive technology services. Unfortunately, these challenges sometimes result in disputes between school personnel and the parents of disabled students. Left unresolved, these disputes are settled in court. The purpose of this paper is to define assistive technology, highlight the federal laws and litigation pertaining to assistive technology, and discuss the implications for school districts.

Assistive Technology: Legislation and Legal Issues

Technology has become an essential element in every aspect of our daily lives. Technology has not only impacted the lives of nondisabled individuals but also individuals living with disabilities who are now able live more productive lives through the use of technology. Students with disabilities are using technology to assist them with being more productive in their regular classrooms settings. Technology is helping to decrease their isolation and provide a way for them to receive a free and appropriate education (Cavanaugh, ). The advancement of technology provides a huge market of available technological resources which makes educators, individual with disabilities, and their families more willing to consider the use of technology for increasing independence. However, the mass of available technologies brings not only accessibility issues but also difficulty in determining the right fit between the technological device and the person.

This problem persists even though the 1997 reauthorization of the Individuals with Disabilities Education Act (PL 105-17) acknowledges the importance of technology for students with disabilities, by requiring the committees that develop the Individual Education Programs (IEPs) to consider assistive technology as a way to provide appropriate education for those in need (Lahm & Sizemore, 2002). However, disputes between the public school districts and students and their families occur and if unresolved, subsequently, may lead to litigation. The purpose of this paper is to provide an overview of assistive technology by discussing its benefits and costs. A review of the legislation, laws, and litigation pertaining to assistive technology and implications for school districts will also be presented.

Defining Assistive Technology

Assistive technology also referred to as AT, are tools and services used to support individual students to increase, maintain or improve their functional capabilities. AT makes certain tasks easier for individuals with disabilities. AT tools range from low technology devices to high technology devices depending on the student’s disability. Low technology devices include adapted furniture, tools, or utensils, raised line, colored, or grid paper, highlighter tapes, pens, magnifiers or pencil grips. Most of the high technology devices are relatively expensive and may include talking calculators or word processors, specialized computer software, or other communication devices. AT is more broadly defined in the Technology-Related Assistance for Individuals with Disabilities Act of 1988

Federal Legislation and Assistive Technology

Assistive Technology Act of 1988

The Technology-Related Assistance for Individuals with Disabilities Act of 1988 also known as the Tech Act, was passed by Congress in 1988 as a 10-year program to enable states to create systems for improving access to AT devices through public awareness, public policy initiatives, and training and technical assistance. The Tech Act provided federal funds to states and territories to develop training and delivery systems for assistive technology devices and services. It required states and territories to develop statewide, consumer-responsive programs of technology-related services for individuals with disabilities of all ages. This act promoted the availability and quality of AT devices and services to all individuals, including children.

The Tech Act also made a distinction between assistive technologies devices and assistive technology services (Edyburn, 2004). The Tech Act first defined AT device & service. As a device, AT includes any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customize, that is used to increase, maintain, or improve functional capabilities of a child with a disability. AT service is defined as any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. Assistive technology services also include the following:

The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child’s customary environment.

Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities.

Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing of assistive technology.

Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs.

Training or technical assistance for a child with a disability or, if appropriate, that child’s family; and

Training or technical assistance for professionals who provide services for, or are otherwise substantially involved in the major life functions of children with disabilities (20 U.S.C. 1401(2)).

Assistive Technology Act of 1998

The Assistive Technology Act of 1998, signed into law by President Clinton, builds on its predecessor, the Tech Act, and reaffirms that technology is a valuable tool that can be used to improve the lives of Americans with disabilities. It also affirms the federal role of promoting access to assistive technology devices and services for individuals with disabilities. The Tech Act extended the funding of the 50 states and six territories to develop permanent, comprehensive, statewide programs of technology-related assistance. The purposes of the Assistive Technology Act are as follows:

Support states in sustaining and strengthening their capacity to address the assistive technology needs of individuals with disabilities.

Support the investment in technology across federal agencies and departments that could benefit individuals with disabilities.

Support micro-loan programs to individuals wishing to purchase assistive technology devices or services.

Assistive Technology and IDEA

The IDEA of 1990 first outlined the school district’s responsibility to provide AT to students with disabilities. IDEA also included a specific statement about the school district’s role. The statement maintains that “each public agency shall ensure that assistive technology devices or assistive technology services or both, as those terms are defined in 300.5 – 300.6 are made available to a child with a disability if required as part of the child’s

(a) Special education under 300.17;

(b) Related services under 300.16; or

(c) Supplementary aids and services under 300.550(b)(2).”

The IDEA of 2004 makes a legal connection between AT and public schools because it mandates that all students with an individualized education program (IEP) must be considered for assistive technology devices or services.

Assistive Technology and the Individual Education Program

Each child receiving special education services is required to have an IEP or a 504 plan. The IEP is a written plan for educating a child with a disability. The IEP describes the student’s specific special education needs as well as any related services, including assistive technology. A multidisciplinary team including school staff, service providers, and the students’ parents develop the IEP. This collaborative process is used to ensure students with disabilities receive the services that they need to be successful in school. The students’ parents should be encouraged to participate in the IEP process. Once a student is deemed eligible for special education, he or she needs to be considered for AT devices or devices in order to receive a free appropriate education in the least restrictive environment.

When considering students for AT, the multidisciplinary team needs to consider the student’s needs, environment, and tasks that the student needs to accomplish. The team needs to consider the tools/strategies that the student currently uses to complete tasks and ideas for new or additional tools and strategies. The team can also decide that an evaluation is needed to determine what assistive technology is necessary. Once assistive technology is found to be necessary for a student, the services are included in the IEP and provided at no cost to the parents.

Benefits and Costs of Assistive Technology

Benefits

AT affords many benefits to students with disabilities. When disabled students receive AT services or devices their self-reliance and self-esteem increase. They are finally able to perform difficult tasks in school that they were not able to complete before which also increases their sense of independence. AT enables students with disabilities to perform functions that can be achieved by no other means. With At disabled students are able to participate in programs or activities which otherwise would be unavailable to them. When assistive technology is effectively integrated into the classroom curriculum, students become productive, independent, and successful. AT is not only beneficial to students but also to teachers. Teachers can better instruct students with different learning styles through computer-based instruction, which provides immediate feedback and can increase motivation.

Costs

AT costs vary depending on the type of devices or services that the students may need. Low technology devices are less expensive than the high technology devices.

Assistive Technology Litigation

When parents do not feel the evaluation, device, or service is adequate, they are entitled to pursue an impartial hearing to appeal the school’s decisions. If parents are not satisfied with the ruling(s) in the impartial hearing, they can pursue the case further in the court system. Assistive technology litigation has involved a number of issues including medical, mobility, or health-related devices and assistive technology for instructional purposes. The following summation of assistive technology litigation includes three cases that resulted in decisions that were in favor of the student and school district. The first of the three cases is the East Penn. School District v. Scott B. (1999). The school district challenged the administrative panel’s decision that the IEP that the Plaintiff had developed violated the standards established under the IDEA. The Plaintiff was a nearly 21 year old student residing at the East Penn. School District. He had multiple disabilities including mental retardation and other physical disabilities.

The dispute focused on whether the transition and AT sections of the IEP were appropriate. In regard to AT, the court agreed with the Appeals Panel’s assessment that the transition plan was insufficient because it did not meet Scott’s individual needs. The Appeals Panel further maintained that the AT component was inappropriate and would not confer an meaningful educational benefit to Scott. The Panel found that the AT was inappropriate because: (1) it was designed to permeate Scott’s entire school day; (2) the keyboarding instruction that Scott received was inadequately adapted to his physical needs; (3) the district delayed obtaining and setting up the assistive device; and (4) the school district failed to offer an educational justification for the use of the Telepathic program.

The parent’s expert witness testimony regarding the educational benefits of the Co-Writer which is a word prediction program was very compelling. The expert testified that Scott needed to use the laptop computer and word prediction program in a functional manner as a tool for language. On the other hand, the district’s case for the Telepathic program did not present any evidence showing the Telepathic program would confer a similar educational benefit to Scott. The court affirmed the administrative panel’s decision holding that the IEP was insufficient as stipulated in the IDEA. The Panel awarded 675 hours of compensatory education based on the determination IEPs from three previous school years. However, the court reduced the amount of compensatory education awarded to reflect a reasonable amount of time for the plaintiff to reformulate its IEP.

The second case is Barber v. Bogalusa City School Board (2001). Ericka Barber was a special education student at the Bogalusa City High School. Although not completely blind, Ericka has profound diminished vision. Ericka’s parents challenged whether an IEP was reasonably calculated to enable her to receive educational benefit. The Plaintiff received an AT device, a reading machine, and occupational and physical therapy. Additionally, she received numerous modifications in the regular education classroom such as a tape recorder, auditory aids, and large print/Braille. Although Ericka’s mother signed and approved the IEP, she later through an attorney, requested a due process hearing. At the hearing, the Independent Hearing Officer (IHO) ruled that the IEP was inadequate because it failed to provide occupational therapy, physical therapy, and adaptive physical education. The IHO also ruled that an adult aide, a computer, and other measures could assist Ericka’s education.

The Bogalusa School Board appealed the IHO’s decision to the Louisiana State Level Review Panel (SLRP). THE SLRP found that “there was some testimony as to the complaints of both physical therapy and occupational therapy but none of this testimony indicated the services provided were not adequate. As for the AT, the SLRP agreed with the IHO that an IEP meeting was immediately needed to address the suggested the AT services, including the availability of a computer. Ericka’s current teacher testified that she would benefit from the use of a computer in a manner similar to a reading machine even though her previous teacher did not believe that she would. The court rejected the Plaintiff’s argument that the IEP was deficient for failing to require the use of a computer and ruled in favor of the school district stating the student was receiving sufficient AT services.

Implications for School Staff