UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
Nov 19 1993
Peter J. Seiler, Ed.D.
Illinois School for the Deaf
125 Webster Street
Jacksonville, Illinois 62650
Dear Dr. Seiler:
This is in response to your letter to Dr. Judy A. Schrag, former Director of the Office of Special Education Programs (OSEP), in which you seek a response to the following question:
If a student needs a hearing aid (assistive device), is the school district responsible for purchasing the device under the new (Individuals with Disabilities Education Act) IDEA if the device is put on the student's (individualized education program) IEP?
Historically, it has been the policy of this Office that a public agency was not required to purchase a hearing aid for a student who was deaf or hearing impaired because a public agency is not responsible for providing a personal device that the student would require regardless of whether he/she was attending school. However, this policy does not apply to a situation where a public agency determines that a child with a disability requires a hearing aid in order to receive a free appropriate public education (FAPE), and the child's individualized education program (IEP) specifies that the child needs a hearing aid.
As your letter recognizes, Public Law 102-476, the Education of the Handicapped Act Amendments of 1990, amended IDEA by adding definitions of the terms "assistive technology device" and "assistive technology service." 20 U.S.C. §1401(a)(25) - (a) (26). In implementing these statutory amendments, the Department amended the regulations implementing Part B of IDEA by adding the following three regulatory provisions. New definitions of the terms "assistive technology device" and "assistive technology service," which essentially tracked the statutory language, were added at §§300.5 - 300.6. As applied to your specific inquiry, the term "assistive technology device," means "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 children with disabilities." 34 CFR §300.5 (copy enclosed). A device such as a hearing aid could be a covered device under this definition.
In addition, under the new §300.308, each public agency must ensure that assistive technology devices and assistive technology services, or both, as those terms are defined in 34 CFR §§300.5 and 300.6, are made available to a child with a disability if required as part of a child's special education under §300.17, related services under §300.16, or supplementary aids and services under §300.550(b)(2). Under Part B, each child's IEP must contain, among other elements, a statement of the specific special education and related services to be provided to the child. 34 CFR §300.346(a)(3). In addition, any supplementary aids or services to be provided to the child in connection with the child' s placement in the regular educational environment must be described in his or her IEP. Appendix C to 34 CFR Part 300, question 48. Therefore, a determination of whether a child with a disability requires an assistive technology device and/or service in order to receive FAPE must be made by the participants on that child's IEP team in accordance with applicable IEP requirements.
Previously, the Department has provided guidance on the scope of a public agency's responsibility to provide assistive technology devices or services to children with disabilities in accordance with the requirements of Part B. In response to public comments on the proposed §300.308, the Department provided the following pertinent discussion in the Analysis of Comments and Changes that accompanied the final regulations:
. . . the requirement in §300.308 limits the provision of assistive technology to educational relevancy - i.e., an assistive technology device or service is required if it is determined, through the IEP process, to be (1) special education, as defined in §300.17, (2) a related service, as defined in §300.16, or (3) supplementary aids and services required to enable a child to be educated in the least restrictive environment. The Secretary believes that the effect of §300.308 is to limit the provision of assistive technology devices and services to those situations in which they are required in order for a child to receive FAPE.57 Fed. Reg. 44794, 44841 (Sept. 29, 1992 (copy enclosed)).
Thus, participants at the meeting held to develop a child's IEP must determine whether, in light of a particular child's educational needs, the public agency must make an assistive technology device and/or service available in order for the child to receive FAPE. In the situation you describe, the IEP team has determined that the child requires a hearing aid in order to receive FAPE, and the child's IEP reflects the need for the hearing aid. Accordingly, the public agency would be responsible for providing the hearing aid at no cost to the child and his or her parents.
I hope that this information is helpful. If I can be of further assistance please let me know.
Office of Special Education Programs
cc: Ms. Gail Lieberman
Illinois State Board