	Volume 12, No. 4, Fall 2004	Previous Issues Subscribe to AT Messenger Download PDF Viewer
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Accessing AT Through the Special Education System

MaryBeth Musumeci, Staff Attorney, Disabilities Law Program

The range of assistive technology devices and services available today, from augmentative communication devices to FM systems and specialized computer software programs, presents an unprecedented wealth of opportunities for school-aged children with disabilities to learn and participate with peers in integrated educational environments. However, the prospects of assistive technology are often overlooked or not fully considered in educational planning and programming for students with disabilities. This article will address the legal requirements for the consideration of assistive technology (AT) in the special education context under the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act. Also discussed will be the interplay between the IDEA and the vocational rehabilitation system, and the IDEA and Medicaid as funding sources for AT.

The Provision of AT Under the IDEA

Most parents of children with disabilities are well aware that an Individualized Education Program (IEP) is the basic document that sets up all of the special education and related services that will be provided to a qualifying child by a school district under the IDEA. The IEP is developed by a team of people including teachers, school district representatives, and persons with special knowledge and expertise in various areas. A parent of a child with a disability is a member of the child's IEP team and should attend and participate actively in IEP meetings. While the law requires that an IEP be reviewed, at a minimum, annually, a parent may request an IEP meeting at any time.

Evaluations Prior to an IEP

Prior to the drafting of a student’s IEP, the IEP team must first consider the school district’s evaluation of the child's disabilities and educational needs in various areas. After the initial evaluation establishes eligibility for special education services, a child must be re-evaluated every three years. However, a parent has the right to request an evaluation of a child at any time. An assessment of the child's assistive technology needs should be included as part of the evaluation process and should be performed by a professional with knowledge and skill in the area of AT. A person specially qualified to interpret the results of the evaluation should participate in the IEP team meeting as well. If a parent disagrees with the school district's evaluation, the parent has the right to obtain an independent evaluation for the IEP team's consideration.

Definition of AT Under the IDEA

As the IDEA has been amended over the years, Congress has reaffirmed its commitment to the consideration and provision of AT in the special education context. It is now mandatory for IEP teams to consider the AT needs of every child with a disability. Congress also has noted the "broad range" of AT devices and services available as an "important component" of enabling children with disabilities to benefit from educational services.(1) Consequently, AT is broadly defined in the IDEA. The IDEA defines an "assistive technology device" as "any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of a child with a disability."(2) An "assistive technology 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...[including] the evaluation [of the child's needs]; purchasing, leasing, or otherwise providing for the acquisition of [AT] devices by such child; selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing of [AT] devices; coordinating and using other therapies, interventions, or services with [AT] devices...; [and] training [for the child, family, and other persons who provide services to or are otherwise substantially involved in the child's major life functions]."(3)

AT and Free Appropriate Public Education

One of the fundamental principles underlying the IDEA is that a "free appropriate public education" (FAPE) must be provided to all students with disabilities ages 3 through 21. As with any other component of an IEP, AT needs must be considered according to the individual needs of each child. A determination must then be made as to whether AT is required in order to provide the child with FAPE. It is imperative that any AT-related services be written down in the IEP in order to be enforceable. The terms about what the school district will provide should be as specific as possible. Consideration should be given to the school district's obligation to provide AT-related services,

including any necessary training in the use of the device for the teacher, student, and parent.

AT and the Least Restrictive Environment

Another foundational element of the IDEA is its requirement that children with disabilities be educated in the "least restrictive environment" (LRE). Technological advances in AT have the potential to make the inclusion of children with disabilities in the regular education environment possible for more students than ever before. When the IDEA was amended in 1997, Congress endorsed the provision of "appropriate special education and related services and aids and supports in the regular classroom" to children with disabilities.(4) Supplementary aides and services, such as AT, should be provided both in the classroom and in "other education-related settings," such as after-school extracurricular activities, to enable children with disabilities to be educated alongside their nondisabled peers "to the maximum extent appropriate."(5) A student with a disability should be removed from the regular education classroom only if the student cannot receive FAPE with supplemental aids and services in that setting. Consequently, when the IEP team is determining a child's placement, adequate consideration should be given to the role of AT to enable a student to participate in a less restrictive educational environment.

Accessing AT Through Section 504

Some children with disabilities may not qualify for special education and related services under the IDEA, but instead may qualify for AT-related services as an accommodation under Section 504 of the Rehabilitation Act of 1973. Section 504 prohibits discrimination against persons with disabilities by any entity that receives federal funding. In addition, the protections of Section 504 also extend to all children with IEPs. Under Section 504, a school district is required to make accommodations in order to ensure that the programs and services it provides are accessible to students with disabilities. A "504 Plan" is the basic document that sets the specific

accommodations that a school district will provide to a qualifying child, which can include AT devices and services.

AT in the Transition From the Special Education System to Vocational Rehabilitation

Another important consideration is the role AT will play as a child with a disability transitions out of the special education system. The IDEA requires that transition planning for a student with a disability begin as part of the regular IEP process at age 14. By age 16, the IEP must include a full-blown transition services plan. Both the IDEA and the Rehabilitation Act (which governs state vocational rehabilitation agencies) envision the state division of vocational rehabilitation (VR) as a key player in this process. The VR agency should attend and participate in the student's IEP meetings and develop its own service plan for eligible students to help them achieve their employment goals. AT needs are among the various services that should be considered in this process. There is an important distinction between the school district and the VR agency's provision of AT to a student. Typically, when a school district provides an AT device to a student, the district owns the device. However, when the VR agency provides an AT device through its service plan, the individual client will retain ownership of the device.

IDEA vs. Medicaid—Who Pays?

Access to AT devices can become more complicated if the student is also entitled to Medicaid health insurance benefits. In general, the Medicaid program is the payor of last resort. However, in the special education context, the IDEA is clear that the Medicaid program's obligation precedes the school district's obligation to pay for a medically necessary device or service included in a child's IEP. Medicaid laws and regulations also provide that payment for medically necessary services by the Medicaid program is not precluded because the service is included in the child's IEP. This principle applies to all services which are both necessary to ensure a FAPE to children with disabilities under the IDEA and medically necessary under Medicaid, explicitly including AT devices and services. However, the school district cannot require a parent to apply for Medicaid benefits in order to receive special education and related

services. Parents also cannot be required to pay any out-of-pocket costs such as deductibles or co-pays if the school district wishes to access AT through a student's public health insurance benefits.

Perhaps the most important and most overlooked part of the law regarding the provision of medically and educationally necessary AT is the IDEA's mandate that, should a payment dispute arise between the Medicaid agency and the educational agency, the school district must pay for the services and then seek reimbursement from the Medicaid program. The IDEA also requires that the school district and the Medicaid agency institute an interagency agreement to coordinate services and make services available during a dispute. The law clearly intends to ensure that students with disabilities do not have to wait for interagency payment disputes to be resolved in order to access AT. However, in practice, students with disabilities are often caught in the middle of these disputes. Sometimes students are forced to wait out an often protracted Medicaid appeals process in order to finally be able to exercise their right to necessary AT devices and services. While the dispute is being resolved, school districts are often reluctant to advocate with the Medicaid program on behalf of the student and fail to live up to their obligation to provide the AT to the student in the interim while the dispute is resolved.

Additional Resources

For a comprehensive treatment of fundamental special education law principles as they relate to assistive technology, you may wish to consult the National Assistive Technology Advocacy Project's publication, The Public School's Special Education System as an Assistive Technology Funding Source: The Cutting Edge (2d ed., April, 2003), available at http://www.nls.org/specedat.htm.

Individuals who encounter difficulty accessing AT devices or services through an IEP and/or the Medicaid program may contact the Disabilities Law Program (DLP) for specific legal advice.

The DLP may be reached at:

New Castle County, (302) 575-0690

Kent County, (302) 674-8500

Sussex County, (302) 856-0038