Law, Learning, and Technology

FROM THE YELLIN CENTER NEWSLETTER - FALL 2013 - THE TECHNOLOGY EDITION

Law, Learning, and Technology

What is the obligation of a school system to provide technological devices to a student?

Brad Flickinger/Flickr

For students with learning, medical, and other challenges, technological innovations have changed the entire landscape of their school experience. Tasks that once posed significant barriers to learning, testing, and classroom activities are now made relatively simple by devices and applications that are improving all the time. One question that arises in the face of this array of technology is what is the obligation of schools to provide these devices and applications to their students?

K-12 Students

Let’s start by looking at K-12 students covered by the Individuals with Disabilities Education Act (IDEA) or who receive services under Section 504 (of the Rehabilitation Act of 1973). All of these students are entitled to “special education and related services and supplementary aids and services” which provide them with a “free, appropriate, public education” or “FAPE.”

The IDEA requires that the IEP, the Individualized Education Program, which includes the services and goals for each child, set forth a statement of supplementary aids and services to be provided to each student, to enable the student to advance academically and to be educated, to the extent possible, in the general educational setting. Such aids include “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,” but do “not include a medical device that is surgically implanted, or the replacement of such device.”

In addition, under the IDEA or Section 504, students are not just entitled to use of an aid or device, but to an array of services to assist in “the selection, acquisition, or use of an assistive technology device.”

The IDEA goes on to state that these services include:

“(A) the evaluation of the needs of such child, including a functional evaluation of the child in the child's customary environment;
(B) purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by such child;
(C) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
(D) coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;
(E) training or technical assistance for such child, or, where appropriate, the family of such child; and
(F) training or technical assistance for professionals (including individuals providing education and rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of such child.”

Furthermore, while the general requirement is for a device to be provided for use in school, in situations where the student requires use of a particular device or technology at home (such as a laptop computer or text to speech software) in order to complete schoolwork, he may be entitled to either take it home or have an additional device or software for home use. Note that subsection (C), above, requires that assistive technology devices be maintained, repaired, and replaced.

The only specific exclusion to this broad list of equipment, technology, and services is that it does not include a medical device that has been surgically implanted, or replacement of such a device. So, while hearing aids for a student with a hearing impairment would fall within the list of devices that could be provided under an IEP, a cochlear implant would not.

One other aspect of technology in the IDEA is the creation of National Instructional Materials Accessibility Standard (NIMAS), which creates uniform requirements for states (and thus for the publishers who supply them) to make materials accessible for students with print disabilities. At the present time, NIMAS materials are only available to students with IEPs who have visual impairments or print disabilities.

After High School: College and Beyond

Once students graduate from high school, they are no longer covered by the IDEA and their rights with respect to learning or other disabilities are governed by the ADA, the Americans with Disabilities Act. Section 504, a bit of a chameleon law, largely mirrors the ADA for students beyond high school.

The ADA is a civil rights law, prohibiting discrimination on the basis of disability. It does not require FAPE, but does require colleges and workplaces to do what is reasonably necessary to make their environments accessible to individuals with disabilities, including providing auxiliary aids and services. However, if providing such aids or services would be an “undue hardship” (defined as “an action requiring significant difficulty or expense”) then they would not be required.

The list of available auxiliary aids and services under the ADA is quite extensive, but is subject to the limitation that no covered entity (such as a college) shall be required to provide “personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing.” So, a student whose high school IEP noted that he needed a hearing aid to access information in the classroom and who was provided a hearing aid, would no longer be eligible to receive a hearing aid once his IDEA eligibility ended and he was covered by the ADA.

It is important to keep in mind that the laws we have been discussing only relate to what students must be provided with by their schools or colleges. Nothing in the IDEA, Section 504, or the ADA limits what kinds of technology a student can use, only who is responsible for providing or paying for it.

Photo: Brad Flickinger/Flickr

ABOUT THE AUTHOR

Susan Yellin, Esq. is the Director of Advocacy and College Counseling Services at The Yellin Center for Mind, Brain, and Education. She is the award-winning co-author of Life After High School: A Guide for Students with Disabilities and their Families.

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Auxiliary Aids & Services

The term “auxiliary aids and services” in the ADA includes:

(A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
(B) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;
(C) acquisition or modification of equipment or devices; and
(D) other similar services and actions.