Laws and Policies
- The Individuals with Disabilities Education Improvement Act (IDEA 2004)
- Definition of Assistive Technology and Services under IDEA
- History of Assistive Technology under the IDEA
- IDEA 2004, Part B (children 3-21 years)
- The Least Restrictive Environment (LRE)
- Connecticut Special Education Laws and Regulations
- The Rehabilitation Act of 1973—Section 504 Eligibility
Several important laws contain sections that relate to the provision of AT for children with disabilities: the Individuals with Disabilities Education Improvement Act; Connecticut special education laws and regulations; Section 504 of the Rehabilitation Act; and the Americans with Disabilities Act (ADA). In addition, the U.S. Department of Education has issued several policy letters, and the U.S. Supreme Court has ruled on questions that affect decision-making related to assistive technology devices and services.
For further information regarding laws that relate to the provision of AT for children with disabilities, such as the ADA, the federal Assistive Technology Act, and Connecticut’s assistive technology lemon law, please refer to appendix 4.
The IDEA governs all aspects of serving children with disabilities from birth through 21 years of age. The information below contains basic definitions under IDEA and their application to AT. The remaining chapters of the guidelines will include legal references related to the process of considering the technology needs of students where appropriate.
Throughout the various reauthorizations of IDEA, the definition has remained constant 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 the functional capabilities of a child with a disability.” However, when the Individuals with Disability Education Improvement Act was released in 2004, an exception was added for the “term does not include a medical device that is surgically implanted or the replacement of such device” (Sec. 602[A]; 34 CFR §.300.5). For example, cochlear implants would fall under this exception.
AT devices range on a continuum from simple low-technology (e.g., highlighters, pencil grips, straws or Velcro) through mid-technology (e.g., switch-operated toys, tape recorders, and calculators) to the most sophisticated and cutting-edge high-tech tools (e.g., computers or motorized wheelchairs). Under IDEA AT includes both assistive technology devices and assistive technology services and is applicable for (or to) infants, toddlers, preschool, and school-age students with identified disabilities.
An assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an AT device. Under Section 34 CFR §300.6, the term includes:
- 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 AT devices by children with disabilities;
- selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing AT devices;
- coordinating and using other therapies, interventions, or services with AT 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 (including individuals providing education or rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of that child.
It is important to recognize the equal importance that the law places on provisions of AT services as well as the actual devices the student or young child needs. Ensuring that a child accesses and benefits from needed AT devices requires the provision of a number of services, as described above and expanded on throughout these guidelines.
As the IDEA and its regulations have been reauthorized or amended, AT has played a more prominent role in the developmental and educational plans for children with disabilities. AT was first mentioned when the 1975 Education for All Handicapped Children Act (P.L. 94-142) was reauthorized as the Individuals with Disabilities Education Act in 1991, and in its accompanying 1992 regulations. Under this reauthorization, the IDEA required AT devices and services to be made available to infants and toddlers with disabilities if deemed an appropriate part of their early intervention program in natural settings described in their Individual Family Service Plans (IFSPs). For preschool and school-age children with disabilities, school districts were required to provide AT devices and services, if needed, as part of their special education, related services, or supplementary aids and services in their individualized education programs (IEPs), designed to address their unique needs.
When Congress reauthorized IDEA in 1997 and released the amended regulations in 1999, school districts were required to do more than just ensure the availability of necessary AT. While the law did not require that every preschool and school-age child needing special education and related services receive AT devices and services, the planning and placement team (PPT)/individualized education program (IEP) team had to consider the use of AT whenever this group of professionals and families developed an IEP for a child with a disability. The latest improvement act of 2004 maintained the language about AT for infants and toddlers and the requirement to consider the need for AT in the development of an IEP (IDEA 2004, Sec. 614[d][B][v]; 34 CFR §300.324[a][v]; 34 CFR §300.105).
For more information about early intervention services, refer to part 2 of this publication, AT Guidelines for Infants and Toddlers under IDEA Part C.
Note: AT devices and services continue to be listed as one of the early intervention services that infants and toddlers may need to have included in their IFSPs (see AT Guidelines for Infants and Toddlers under IDEA Part C). Neither the statutes nor the regulations elaborate on what needs to be done to effectively consider AT for children. The chapters that follow provide guidance for accomplishing that task.
Part B of the IDEA defines a school-age child with a disability as one who has been identified as having any of the 13 disabilities described in the law and who needs special education and related services as a result. These disabilities are autism, deaf-blindness, deafness, emotional disturbance, hearing impairment, mental retardation (intellectual disability in Connecticut), multiple disabilities, orthopedic impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment (IDEA 2004). Eligibility for special education and related services and their particular educational needs, including the need for AT, are determined through a comprehensive evaluation that is planned, conducted, and reviewed by a multidisciplinary team.
Young children (ages 3 to 6 in Connecticut) are eligible for IDEA services if determined to have a developmental delay as described in the law or any of the other disabilities mentioned above.
The AT requirements of IDEA are not limited to any particular disability. Children with any of the disabilities covered by the law have the right to have their AT needs addressed.
The hallmark of disability eligibility in Part B of IDEA is that the identified problems must be shown, through evaluation, to adversely affect the child’s educational performance. Included in Part B are several mandates to include that each eligible child be provided with a free appropriate public education (FAPE) in the least restrictive environment (LRE) with his or her nondisabled peers to the maximum extent appropriate.
The term “free appropriate public education” means special education and related services are:
- provided at public expense, under public supervision and direction and without charge;
- meet the standards of the state education agency (i.e., the Connecticut State Department of Education);
- include an appropriate preschool, elementary school, or secondary school education; and
- are provided in conformity with an IEP that meets legal requirements (IDEA 2004).
The term “special education” means specially designed instruction, at no cost to parents or guardians, to address the unique needs of a child with a disability and to ensure access of the child to the general curriculum, so that the child can meet the educational standards, including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and instruction in physical education.
As members of their child’s PPT/IEP team, parents have the right to be involved in all decisions relating to their child’s identification, evaluation, and placement. Part B also assures that children with disabilities and their parents or guardians are protected by due process in decision-making about the child’s special education and related services (IDEA 2004). When the PPT/IEP team is considering the use of AT devices and/or services, decisions should be made with consideration of FAPE, LRE, parental involvement, and parents’ due process rights.
The term “related services” means those services that are required to help a child with a disability benefit from special education. All the specifically listed related services may have a direct or indirect relationship to AT, namely transportation; speech-language pathology and audiology services; interpreting services; psychological services; physical and occupational therapy; recreation, including therapeutic recreation; social work services; school nurse and health services; counseling services, including rehabilitation counseling; orientation and mobility services; medical services for diagnostic or evaluation purposes; early identification and assessment of disabling conditions; and parent counseling and training. Although AT is not specifically mentioned in the list of related services, the list is not exclusive—meaning that a service not on the list can be considered a related service if the PPT/IEP team determines it is necessary to support a child’s special education. Therefore, AT could be included in a child’s IEP as a related service (OSEP Policy Letter to S. Goodman, 16 EHLR 1317, [8/10/90]).
The “free” in free appropriate public education means that all aspects of the special education and related services provided to children with disabilities between the ages of 3 and 21 must be at “no cost to the parents.” This rule prohibits schools from refusing to include equipment or services in an IEP because it is too expensive. The only time “cost” can be a consideration is when two equal alternatives exist that would each enable the child to receive an appropriate education —in this case, the school may choose the less expensive option. In addition, schools cannot require parents to pay for devices and services that appear as part of their child’s IEP, (even if that IEP includes language that the use of AT occurs at home). Parents cannot be required to use private insurance to pay for devices and services, especially if they would suffer a financial loss as a result (loss has been defined to include a decrease in coverage, depletion of a lifetime cap, raised premiums, and/or discontinuation of a policy to pre-existing condition exclusions). If a family agrees to allow the school access to its private insurance or to pay for the device out of pocket, this decision must be strictly voluntary (Wolfenden, 1995).
The term “appropriate” in FAPE does not mean “best.” School systems are required to provide a student with a disability with an “appropriate” education. IDEA does not define the term “appropriate.” However, the U.S. Supreme Court looked at the issue of “appropriate” vs. “best” in the Board of Education of the Hendrick Central School District v. Rowley (1982) case. The court ruled that the special education and related services offered to a child with disabilities must meet two criteria to be “appropriate” for the purposes of the IDEA:
The IEP must be developed in accordance with the procedures set forth in IDEA, including those governing resolution of disputes between parents and school systems.
The IEP must be “reasonably calculated to enable the child to receive educational benefits” (Boundy and Ordover, 1991).
The Rowley decision, as the ruling has come to be known, established a “basic floor” for special education quality by holding that the IDEA does not require the school to provide an educational program that is designed to maximize a student’s potential. The educational program must, however, “confer a benefit to the student that is more than trivial.” The IEP must be one “under which educational progress is likely” (Boundy and Ordover, 1991). Applying the Rowley decision to AT, appropriate means the use of any device or service that a child needs to benefit from his or her educational program. It also means proper assessment from knowledgeable professionals with parental input and training of all the individuals involved in the student’s program (Goodman, 1991).
The LRE requirement in the IDEA states that to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled; and, special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (34 CFR §300.114[a][i and ii]).
According to the report of the Harris Commission on Education and Labor regarding P.L. 101-476 (the IDEA), “Advances in the development and use of AT have provided new opportunities for children with disabilities to participate in educational programs. For many children with disabilities, the provision of AT devices and services will redefine an appropriate placement in a least restrictive environment and allow greater independence and productivity.”
Aids, services, and other supports that are provided in regular education classes, other education-related settings, and in extracurricular and nonacademic settings, to enable children with disabilities to be educated in the LRE are called “supplementary aids and services”. By providing tools that help a student function either more independently and/or more successfully in the regular classroom, AT can impact both the curriculum and staff supports that a student requires. The use of AT devices may also raise a student’s achievement in the least restrictive environment. For example, certain computer technologies provide ways in which students can be less dependent on staff supports for reading and writing tasks, thereby providing these students with the least restrictive environment for completing these tasks.
Connecticut’s special education laws and regulations essentially mirror the provisions of the IDEA. Notable exceptions are the use of the term planning and placement team (PPT) that is synonymous with individualized education program team (IEP team); the composition of the PPT/IEP team and member attendance requirements that supplement IDEA requirements; and the timelines for conducting activities related to referrals, evaluations, and IEP implementation. These requirements under state law will be cited, as appropriate, in the chapters dealing with best practice and procedures for addressing the AT needs of children and youth with disabilities, ages 3-21.
The Rehabilitation Act was introduced to prevent intentional or unintentional discrimination and to eliminate barriers that excluded individuals with disabilities. Section 504 of the Rehabilitation Act of 1973 is a civil rights law that prohibits agencies and programs that receive federal funds from discriminating against individuals with disabilities.
The Office of Civil Rights at the U.S. Department of Education oversees the implementation of Section 504 by agencies and programs that receive federal funds. Public schools receive federal funds and, therefore, are subject to the provisions of Section 504. The law states, “No otherwise qualified individual with handicaps in the United States...shall, solely by reason of his handicap, be excluded from participation in, be denied the benefit of, or be subject to discrimination under any program or activity receiving federal financial assistance...(29 U.S.C. §794).”
Students who do not qualify for special education under the IDEA but are determined disabled under Section 504 of the Rehabilitation Act of 1973 are eligible for accommodations that may include AT devices and/or services. Note that Section 504 uses the term “handicapped” while the IDEA uses the term “disability.” The definition of disability under Section 504 is different from the definition of disability under IDEA. Under Section 504, an “individual with handicaps” is defined as a person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.” Major life activities include walking, sleeping, seeing, hearing, learning, caring for oneself, performing manual tasks, speaking, breathing, and working (29 U.S.C. §706[B]). This means that the definition of individuals with handicaps under Section 504 is broader than the definition of children with disabilities under the IDEA.
Section 504 applies to preschool and elementary and secondary schools that receive or benefit from federal financial assistance. These programs are required to provide students with disabilities a free appropriate public education. Section 504 defines appropriate as the provision of regular or special education and related aids and services that are designed to meet the individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons. Programs subject to Section 504 must ensure that students with disabilities are afforded an equal opportunity to participate in all academic and extracurricular school programs. Benefits and services provided to students with disabilities must be equal to, and as effective as, the benefits and services afforded to other students (34 CFR §104.4[b][ii-iii]).
For more information on laws and policies, refer to appendix 4.
Schools may have to make special accommodations, including the provision of AT devices and/or services, to allow students with disabilities to have access to the full range of programs and activities available to nondisabled students. These are documented under “accommodations” in the 504 plan designed for each student according to individual need. For further information about Section 504 and public schools’ responsibilities under the provisions of Section 504, please contact the Northeast Regional Office of Civil Rights at 617-289-0111 or the U.S. Department of Education.