Diane Smith


Washington, DC (202) 408-9514

Ronald M. Hager

National AT Advocacy Project

a project of Neighborhood Legal Services, Inc. · Buffalo, New York · (716) 847-0650


I. Introduction

A. Questions from last week

B. Today’s session

1. AT Overview–Ron

2. Methodology–Diane

3. Maximization–Ron


A. Overview

1. History

a. Tech Act–1988

b. IDEA Amendments of 1990

(1) Added definitions

(2) Legislative history emphasizes use for LRE

c. IDEA ‘97

(1) Must consider for all students

(2) Added to new regulations--§ 308

2. Uses

a. AT used by all students–ensure access

b. AT used by the individual student

c. Integrated transportation (p. 29)

B. General Standards

1. Examples (p. 31)

2. Basis for providing--§ 308(a)

a. Special education–significance

b. Related service

c. Supplementary aids and services

3. If needed to provide FAPE (p. 30)

4. Extended school year services (ESY), now in regulations, § 309

5. Evaluations, including independent evaluations at district expense, (p. 31)

6. Implementation

a. Provision for AT must be made when IEP for upcoming year is finalized so AT can be implemented at beginning of next school year (p. 32)

b. Parent training expanded to teach parents the skills needed to help their children reach their IEP goals

c. Classic case–East Penn (p.32)

C. Special Uses

1. Home use if needed to ensure FAPE, now in regulations--§ 308(b)

2. Personally prescribed devices

a. If needed to ensure FAPE

b. School owns, not parents

c. Suggested as last resort

3. Private insurance and Medicaid

a. Policy letters

(1) Free

(2) Voluntary

(3) Practical considerations

(a) Lifetime/annual cap

(b) Waiver cap

(c) Frequency of approval

(d) Copayments and deductibles–school can pay

b. Regulations

(1) Private insurance

(a) Must obtain informed consent with each use

(b) Must include potential consequences of use in notice

(2) Medicaid

(a) Not required to get consent prior to each use

(b) Cannot require parents to sign up for Medicaid

(c) If parents refuse to authorize use, school must still provide services

4. Repairs/damages–now in comments to regulations (p. 35)

a. School cannot make parent responsible for normal wear and tear

b. However, State law, not the IDEA, governs liability for loss due to theft, negligence or misuse

c. However, State law must be administered consistent with FAPE

d. Ignores definition of AT services, which includes repair and maintenance as an obligation of the school

5. School health services

a. Issue is AT and school health related aids to support or maintain

b. In Garret F., Supreme Court established a "bright line" test

(1) If services can be performed by someone other than a physician, they are not an excluded medical service

(2) Service must need to be performed during the school day to enable the student to remain in school

c. Tatro quote re risks of increased liability (p. 36)

d. Garret F. quote re need to train or obtain trained staff (p.37)

III. Methodology–Diane

A. Introduction

1. The district has the authority to determine which educational methods will be used to meet a student’s education needs, and courts and hearing officers will generally defer to the district’s decisions.

2. However, there are times when the method is an integral part of a student’s program and thus must be a part of his/er IEP.

B. There is no legal prohibition against including instructional methodologies in the IEP.

C. 1997 Amendments

The ability of the IEP team to designate a particular methodology in the IEP became somewhat clearer.

1. "Special education" is "specially designed instruction" and specially designed instruction includes adapting the "methodology or delivery of instruction." (34 CFR 300.26).

2. The comments to the March 1999 regulations note that including day to day teaching approaches or lesson plans in IEP’s would be overly prescriptive, (F.R. p. 12552, 3/12/99) but also note that: "...[T]here are circumstances in which the particular teaching methodology that will be used is an integral part of what is

"individualized" about a student’s education and, in those circumstances will need to be discussed at the IEP meeting and incorporated into the student’s IEP..."

C. Parental preference, in and of itself, is not sufficient to dictate educational methodlogy.

D. Special Factors

The 1999 regulations also specify several situations where methodology must be considered.

1. IEP teams must consider the need for braille for blind and visually impaired students and the appropriate mode of communication (e.g. American Sign Language) for deaf students and students who are hard of hearing. In these cases, the method to be used must be included in the student’s IEP. This requirement includes the training of family members in this method of communication when it is necessary for the student to receive FAPE. 34 CFR 300. 346(a)(2)

E. A child's IEP must address his or her involvement in the general curriculum, including the impact of special factors. Appendix A, 34 CFR 300

1. For example, if the IEP team determines that in order for a child who is deaf to participate in the general curriculum he or she needs sign language and materials which reflect his or her language development, those needs (relating to the child's participation in the general curriculum) must be addressed in the child's IEP.

2. AT needs are a special factor 34 CFR 300. 346(a)(2)

IV. Maximization

A. Rowley

1. Appropriate does not mean best

2. Advancing from grade to grade with individualized special education services is normally enough, but not always

a. In Yankton, court found student was eligible for transition even though she was a straight A student

b. New regulations, § 121(e), emphasize that schools are not automatically relieved of their obligation to provide FAPE even though student is advancing from grade to grade

3. Appropriate means ability to benefit from special education services, which is measured by progress


1. Daniel RR–here, we are maximizing something: ability to be placed in LRE

2. Legislative history to 1990 amendments that AT will revolutionize ability to be placed in LRE

3. In Espino v. Besteiro, student needed AT to even exist in LRE

4. Still have case of typewriter v. computer–how much success is to be expected

C. Transition

1. Outcome oriented process consistent with the student’s needs, preferences and interests

a. College

b. AP classes–what if Amy was taking AP classes

2. Prepare for adult living

a. Therefore, nothing to do with academic progress

b. Still have question of how much progress toward goal, but student has to get there

D. IDEA ‘97

1. Language undercutting Rowley (p. 13)

a. Prepare teachers so they know how to best teach the child

b. But, at least one step removed

c. Definition of appropriate itself not changed

2. Outcome oriented process and implications