Issues: Provision of Appropriate Assistive Technology/Accommodations

Key - accommodationThe information below has been derived from sections of the law, Office of Special Education Program comments and discussion provided at  http://idea.ed.gov/explore/home. The guidance provided in that website helps clarify the intent of IDEA and may be useful to professionals and parents alike who are trying to advocate appropriate services and supports for children with hearing loss. Another valuable and brief summary is athttp://www2.ed.gov/about/offices/list/ocr/docs/hq9806.html 

NOTE: the information below this does NOT constitute legal advice

Refer HERE for information about Schools Purchasing for Hearing Aids for Students

Summary of Situation Topics

Information is provided on the following 3 topics. Scroll below for details.

FM systems (assistive technology)

Speech-to-Text Translation (assistive technology) / CART Services  

Hearing Loss / Hearing Aids

FM systems (assistive technology)

1. The student is getting good grades or appears to have typical development on school entry. The team says that an FM system is not necessary for the child to learn.

 FM technology allows the student to maximize how well they hear the teacher and therefore supports full involvement in the regular education setting, assuming the teacher accommodates by repeating key information from classroom discussion. 

Sec. 300.39(b)(3) (proposed Sec. 300.38(b)(3)) defines specially designed instruction as adapting the content, methodology, or delivery of instruction to address the unique needs of the child and to ensure access to the general curriculum so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children. In addition, ensuring that children with disabilities have access to the general curriculum is a major focus of the requirements for developing a child’s IEP. For example, Sec. 300.320(a)(1) requires a child’s IEP to include a statement of how the child’s disability affects the child’s involvement and progress in the general education curriculum; Sec. 300.320(a)(2)(i) requires annual IEP goals to be designed to enable the child to be involved in and make progress in the general education curriculum; and Sec. 300.320(a)(4) requires the IEP to include a statement of the special education and related services the child will receive, as well as the program modifications or supports for school personnel that will be provided, to enable the child to be involved in and make progress in the general education curriculum.

The IEP requirements in Sec. 300.320(a), consistent with section 614(d) of the Act, clarify that children with disabilities must be provided special education and related services and needed supplementary aids and services to enable them to be involved in and make progress in the general curriculum.

2. The school team says that the old FM technology available is sufficient as they only have to provide appropriate technology, not ‘the Cadillac’.

The following guidance provides support to provide the assistive technology that maximizes how a child performs in the classroom. The team may need to do trial periods with one or more types of FM and gather objective data to verify the degree of benefit. 

Section 614(d)(3)(B)(v) of the Act, requires the IEP Team to consider whether the child needs assistive technology devices and services. Sec. 300.704(b)(4)(v) that allows States to use funds to support the use of technology to maximize access to the general education curriculum for children with disabilities. …. Whether an augmentative communication device, playback devices, or other devices could be considered an assistive technology device for a child depends on whether the device is used to increase, maintain, or improve the functional capabilities of a child with a disability, and whether the child’s individualized education program (IEP) Team determines that the child needs the device in order to receive a free appropriate public education (FAPE).

3. The student was late-identified and some members of the school team are suggesting use of an FM system at home and community events so that he can be exposed to more language and catch up with peers more readily.

Sec. 300.105 Assistive technology. (a) Each public agency must ensure that assistive technology devices or assistive technology services, or both, as those terms are defined in Sec. Sec. 300.5 and 300.6, respectively, are made available to a child with a disability if required as a part of the child’s–(1) Special education under Sec. 300.36; (2) Related services under Sec. 300.34; or (3) Supplementary aids and services under Sec. Sec. 300.38 and 300.114(a)(2)(ii). (b) On a case-by-case basis, the use of school-purchased assistive technology devices in a child’s home or in other settings is required if the child’s IEP Team determines that the child needs access to those devices in order to receive FAPE.

Section 300.117 (Nonacademic settings) has been changed to clarify that each public agency must ensure that each child with a disability has the supplementary aids and services determined by the child’s individualized education program (IEP) Team to be appropriate and necessary for the child to participate with nondisabled children in the extracurricular services and activities to the maximum extent appropriate to the needs of that child.

4. There is a high functioning student that struggles to keep up with directions and participate in classroom discussions. Our team is considering a 504 Plan that includes use of an FM amplification system. Because it is a 504 Plan and not special education, the team does not want the educational audiologist or teacher of the deaf/hard of hearing involved in any way.

The information below comes from a settled court case that illustrates that (1) it is appropriate to provide FM technology as part of a 504 Plan, (2) it is important to have someone knowledgeable about the FM technology involved in an ongoing basis, and (3) it is necessary to consider what will be done in a timely manner if the technology is not functioning: The school district developed a 504 Plan for a student with a hearing impairment. The initial plan was developed during his fourth grade year in elementary school and included: preferential seating; oral directions and instruction should take place so that the speaker is facing the student; gain the student’s visual attention before providing instruction or directions; provide a specified area in which the student can work if requested/needed; check to see that the student understands directions; clarify if necessary; and the use of an FM system for amplification. The school guidance counselor was responsible for communicating the 504 plan to the student’s teachers and she did so by placing a copy in their mail boxes. She did not provide the teachers with any instructions on how to use the FM system. The student used the system through his fourth grade year, but in fifth grade, during the student’s first year of middle school, problems began. The middle school teachers did not know how to use the device or how to “sync” it. The principal arranged for the speech language pathologist to teach the principal, the school nurse, and the guidance counselor how to synchronize the system. However, the FM device only worked intermittently and eventually was sent to be repaired. The student went months without the FM device. During that time no one checked with the student to determine how not having the device was affecting him. Moreover, no one made any effort to compensate for the unavailable system. As a result, the student’s mother noted that he often came home crying because he had missed the teacher’s instructions, particularly during the confusion at the end of a school day. The mother called his friends to check on his assignments. Frustrated, she filed a complaint with the Office for Civil Rights (OCR) alleging a violation of 504. The school district explained to OCR, that since the student had continued to maintain “A” and “B” grades while the FM device was unavailable, they felt he was not affected by the district’s failure to follow his 504 Plan. The Office for Civil Rights, however, agreed with the student’s mother that his maintenance of good grades was due to his own diligence. Thus, the OCR determined the district’s failure to implement the 504 Plan and failure to implement mitigating measures denied the student a free appropriate public education and violated 504. … The lesson for school districts from this case is to develop a back-up plan for what to do if the device breaks. School districts and 504 planning teams should anticipate that AT devices will break and determine, ahead of time, where the device can be repaired and what to do in the interim. Good communication between parents and school staff can help avoid and/or resolve disputes. So, as part of the 504 Plan, involve parents in devising the back-up plan. Finally, school districts should not rely solely on the adequacy of a student’s grades in determining eligibility for services or the impact on the student when required services are not provided.

Speech-to-Text Translation (assistive technology) / CART Services 

1. The student is not keeping up with the pace of classroom learning. Some members of the team conclude that only a sign language interpreter will assure that the child will receive FAPE, even though the child only has a few signs.

Speech-to-text translation, whether provided by a human captionist or by computer translation software, allows the student to maximize their access to what is said by the teacher and therefore supports full involvement in the regular education setting, assuming the teacher accommodates by repeating key information from classroom discussion. 

Sec. 300.34(c)(4) added includes “transcription services such as communication real-time translation (CART), C-Print, and TypeWell” to the definition of interpreting services in paragraph (c)(4)(i).

Whether an augmentative communication device, playback devices, or other devices could be considered an assistive technology device for a child depends on whether the device is used to increase, maintain, or improve the functional capabilities of a child with a disability, and whether the child’s individualized education program (IEP) Team determines that the child needs the device in order to receive a free appropriate public education (FAPE).

CART SERVICES CASE LAW: The 9th US Circuit Court of Appeals has ruled in favor of the plaintiff in KM v. Tustin Unified School District  (No. 11-56259). The ruling is a victory for students with hearing loss, who can now have access to Computer-Assisted Realtime Transcription (CART) as an accommodation in K-12 classrooms. In the case, the Court of Appeals reversed summary judgment against KM and another high school

Gavelstudent who sought CART, a service in which a transcriptionist provides live captioning, from their school districts as an accommodation under the Americans with Disabilities Act (ADA). The Court ruled that compliance with the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act of 1973, two federal laws that provide special education services and accommodations for students with disabilities, does not mean compliance with the Americans with Disabilities Act (ADA). The requirements of the ADA are broader and more stringent. Under the ADA, public schools must provide students who are deaf and hard of hearing with equal and effective communication.

KM was diagnosed at 13 months with bilateral severe to profound hearing loss. Her parents chose a listening and spoken language outcome for her, and KM received a cochlear implant in her right ear when she was 3 years old and then received a second cochlear implant at age 15. After her seventh grade teacher noted that KM was “lost” during class discussions, the family requested that her school district provide her with CART for her classes. The school denied the accommodation, noting that as long as a student with a disability is passing her classes, no accommodation is necessary under precedent interpreting the IDEA. The family filed an unsuccessful due process compliant.

KM brought suit against the school district in a federal court in California not only under IDEA, but also under the ADA and Section 504 of the Rehabilitation Act of 1973. While the district court was sympathetic to KM, the court agreed with the school district that as long as KM was passing her classes, no further accommodation was necessary.

KM appealed to the 9th US Circuit Court of Appeals arguing that the ADA’s standard is different from that of IDEA, and that CART interpreting is necessary for students who are deaf to receive full and equal access in the classroom. It was also noted that courts have held that captioning is necessary for access for individuals who are deaf and hard of hearing in a variety of contexts, such as for watching movies and participating in courtroom proceedings, arguing that access for the classroom was no different. The US Department of Justice also filed an amicus brief in the case, essentially agreeing with these arguments.

This case sets a national standard for all public schools, requiring them to acquiesce to requests for speech-to-text translation (captioned by a person or via technology)  by students who are deaf and hard of hearing as an auxiliary aid when needed to provide equal and effective communication access. Public schools can no longer hide behind the IDEA which only requires a basic floor of opportunity.   SOURCE

Hearing Loss / Hearing Aids

1. There is a student with a hearing loss who appears to have had a significant change in hearing requiring a change in the level of accommodations, services and supports provided. The family has transportation issues and no insurance. The district will not pay for an audiological evaluation. 

Sec. 300.34(a) includes medical services for diagnostic and evaluation purposes, consistent with section 602(26) of the Act. The Department continues to believe that using language from the Act to define medical services is essential.

If transportation to an evaluation outside the school environment is necessary, the public agency would have to provide it, as a part of its obligation to ensure that all eligible children are located, identified, and evaluated. However, we do not believe that the parents need to be notified of this fact because, in most cases, children can be evaluated at school during the school day and there is no requirement that a parent be present during the evaluation.
 
2. There is a student with a progressive hearing loss. The IEP team does not want to convene more than once a year.

S. Rpt. No. 108-185, p. 33, and H. Rpt. No. 108-77, p. 112, recognized the special situations of children withmedical conditions that are degenerative (i.e., diseases that result in negative progression and cannot be fully corrected or fully stabilized). For children with degenerative diseases who are eligible for services under the Act, both reports state that special education and related services can be provided to help maintain the child’s present levels of functioning for as long as possible in order for the child to fully benefit from special education services. The reports also state, “The IEP Team can include related services designed to provide therapeutic services prior to loss of original abilities to extend current skills and throughout the child’s enrollment in school. These services may include occupational and physical therapy, self-help, mobility, and communication, as appropriate.”

3. There is a student in his neighborhood school who uses hearing aids. He receives consultative services from a teacher of the deaf/hard of hearing. It seems like he isn’t hearing as well lately and I wonder if it is a problem with the hearing aids.

Regulations: Part 300/B /300.113 / a(a)      Hearing aids. Each public agency must ensure that hearing aids worn in school by children with hearing impairments, including deafness, are functioning properly. [For a hierarchy of skills and age expectations related to amplification monitoring refer to the SEAM – Student Expectations for Amplification Management  https://successforkidswithhearingloss.com/resources-for-professionals/self-advocacy]

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