By Ronald S. Stadler, Esq.*
Technology changes, but one thing that seems to stay the same is that when the latest gadgets hit the shelves, schools see an increase in requests for the inclusion of that technology in the classroom, with a claim that it is required for the child’s free appropriate public education. For example, a GPS and voice-monitoring device/app is now available that allows a parent to “map” the student’s location and to engage in two-way communication with the child. Such devices can be useful for parents, but whether it is required by law is a separate issue that needs to be individually analyzed. Schools must ask whether the device is required for the child to receive FAPE under the IDEA. Additionally, one cannot overlook that the device could be viewed as an effective communication aid required under Title II of the ADA or a reasonable accommodation under Section 504.
Regardless of the nature of the device, a school must look at the following considerations in determining whether a piece of technology is required.
- Is it a related service?Congress has defined FAPE to include the provision of related services. Thus, the IEP team must consider whether the technology is a related service. “Related services” mean developmental, corrective, and other supportive services as may be required to assist a child to benefit from special education. 20 USC 1401 (26). Related services “broadly encompasses” services that “may be required to assist a child … to benefit from special education.” Cedar Rapids Comm. Sch v. Garret F., 20 IDELR 966 , 526 US 66, 73 (1999).
- Is it assistive technology?The IDEA also requires schools to provide AT devices — “any item, piece of equipment, or product system … that is used to increase, maintain, or improve functional capabilities of a child with a disability.” Certainly, new technology could fall into this definition. The IEP team must therefore answer the question of whether that device is required to increase, maintain, or improve the child’s functional capabilities.
- Is it supplementary aids and services?A school must provide “aids, services, and other supports” in the regular education setting “to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate.” 20 USC 1414 (d)(1)(A)(IV). Thus, an IEP team must consider whether the technology is necessary to allow the student to be mainstreamed in regular education to the extent possible.
Title II of the ADA and Section 504
An item of technology may not be required for the provision of FAPE, but that does not end the inquiry. The Office for Civil Rights has explicitly advised that complying with IDEA requirements may not be enough to comply with the ADA or Section 504, noting that to comply with both the IDEA and the ADA, “a school may have to provide additional and different aids and services.” Letter to Negron, 65 IDELR 304 (DOJ/OSERS/OCR 2015).
Pollack and Quirion v. Regional School Unit 75, 69 IDELR 271 (D. Me. 2017), aff’d, 118 LRP 11675 (1st Cir. 03/26/18),highlights the Title II issue. In that case, the parents sought to have their child with autism wear a two-way audio device while at school. The school declined the request, citing its electronic device policy. The parents sued under Title II of the ADA and Section 504, relying on the “effective communications regulation” found at 28 CFR 35.160. That regulation has two components. First, a school must take steps to ensure that communication with students with disabilities is as effective as communication with others. Second, a school must furnish auxiliary aids and services where they are necessary to afford an equal opportunity to participate in the program or service. In rejecting the parents’ claim, the District Court in Pollack noted that effective communication between the student and his non-disabled parents is not within the scope of the regulations. The District Court’s analysis is a useful guide. It found that because the device was not required for the student’s communication within the school program, the device was not required under Title II of the ADA.
When parents request the newest technology for their child, schools must make an individualized determination under the IDEA and the ADA/Section 504 to determine if that technology is required. More importantly, one must remember that the answer under one statute may not lead to the same conclusion under the other. Guide your IEP team to make a case by case analysis under both.
*Ronald S. Stadler, is an attorney with Mallery & Zimmerman S.C. in Milwaukee. He has more than 25 years of experience in litigating labor and employment matters, school law matters, and commercial disputes. Ron’s school law practice entails assisting school districts and higher education institutions with every aspect of education law, including special education and constitutional issues.
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