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School Liability for Family-Owned AT

UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
400 Maryland Ave., SW, Washington D.C. 20202

AUG 9 1994

Dear _____:
This is in response to several letters to the Office of Special Education Programs (OSEP) regarding a school district's liability for a family-owned assistive technology device under Part B of the Individuals with Disabilities Education Act (Part B). _____ wrote to this Office regarding this matter in separate letters dated January 21, 1994, May 6, 1994 and May 16, 1994, and _____ wrote jointly to this Office by letter dated June 9, 1994.

Because these inquiries are related, we have consolidated our responses. We apologize for the delay in issuing our response. Your questions and OSEP's responses appear below.

In _____ letter dated January 21, 1994, ________ explains that _____ individualized education program (IEP) states _________ will improve communication skills. Given the proper augmentative communication device _________ will. . . " to achieve FAPE." _____________ further indicates that "[i]t was later determined that the ________________ was the proper augmentative communication device." However, ______ does not indicate that this device is identified in __________ IEP as the device to be used for ________. Rather than having the school district purchase the device, ______ and _________ purchased the __________ for _____ "to insure that _____ was able to access the device continually."

Specifically, ________________ asks:

Since the school district needs the device to implement [my child's] IEP, should they assume liability of the device from the time ______ gets on the school bus, until _______ gets home?

If the school district is not liable, since we provided the device, then is the school district responsible for purchasing a device for __________ to be used at school?
_____ and ______ joint letter of June 9. 1994 also seeks clarification of the liability of a school district for family-owned assistive technology devices, used to implement a child's IEP at school or at home.

In recognizing the importance of assistive technology in meeting the unique educational needs of students with disabilities, Congress amended the Individuals with Disabilities Education Act by adding new definitions of the terms "assistive technology device" and "assistive technology service" as part of the Education of the Handicapped Act Amendments of 1990, Pub. L. 101- 476 (1990 Amendments). 20 U.S.C. 1400 (a) (25) and (a)(26); see also 34 CFR 300.5-300.6. A new regulation at 300.308 provides further clarification of a school district's obligations with respect to assistive technology, and reads as follows:

300.308 Assistive technology Each public agency shall ensure that assistive technology devices or assistive technology services, or both, as those terms are defined in 300.5-300.6, are made available to a child with a disability if required as a part of the child's --
(a) Special education under 300.17;
(b) Related services under 300.16; or
(C) Supplementary aids and services under
300.550(b) (2).
(Authority: 20 U.S.C. 14l2(2), (5)(3))

In the comments and responses published with the final regulations, the following pertinent discussion of these regulations was provided:

...The Secretary believes that assistive technology devices and services may be essential to the provision of FAPE to certain children with disabilities. Section 300.308 provides only that these devices and services must be made available if they are required under current provisions of the regulations relating to special education, related services, and supplementary aids and services. A determination as to whether an assistive technology device or service is required in order for a child to receive FAPE must be made on an individual basis using the evaluation procedures, the procedures for developing IEPs, and the procedures for placement described in these regulations. Similarly, a decision as to whether a child may use a device or service in settings other than the child's school (e.g., the child's home or other parts of the community) also must be made on an individual basis. Under 300.301, a public agency may use whatever State, local, Federal, and private sources of support are available to provide or pay for services, including assistive technology services or devices. These services and devices must be provided at no cost to the child or parent under 300.8 and 300.300.
57 Fed. Req. 44794, 44845 (Sept. 29, 1992) (copy enclosed).

In a telephone conversation with _____, Ms. Rhonda Weiss of my staff confirmed that the regulations and interpretations referenced above reflect the obligations of public agencies with respect to the provision of assistive technology devices or services to students with disabilities. If a public agency determines that a child with a disability requires an assistive technology device or service as part of a free appropriate public education (FAPE) for that child, the above regulations require the public agency to provide the device or service at no cost to parents. In addition if the device that the parents have agreed to furnish is no longer in working order, and therefore is no longer available for purposes of implementing the student's IEP, the public agency is responsible for either continuing to implement the student's IEP by providing a substitute device, or for reconvening the student's IEP team for purposes of reviewing the student's IEP, and if appropriate, revising its provisions. 34 CFR 300.343(a).

As reflected above, under Federal law, the general rule is that the school district is responsible for assistive technology devices that are a part of the child's special education, related services, or supplementary aids and services, and that those devices and/or services must be provided at no cost to parents. Federal law, however, does not specify the responsibility of a public agency in the situation described in your inquiries, where parents elect to purchase a needed device from their own funds, and the public agency, with parental permission, uses the family-owned device in connection with implementation of the student's IEP, in school or at home, as specified in the IEP. In many cases, it may be reasonable for public agencies to assume liability for family-owned devices used to implement a child's IEP either at school or at home, since the public agency is responsible for providing assistive technology devices and services that are necessary parts of the child's special education, related services, or supplementary aids and services, as specified in the child's IEP. Further, without the use of the family-owned device specified in the IEP, the public agency would be required both to provide and maintain the needed device. On the other hand, there may be situations in which assuming liability for a family-owned device would create a greater responsibility for the public agency than the responsibility that exists under Federal law.

We understand that School District _____ has agreed to be responsible for the device purchased by the _____ family.As their letter of May 24, 1994 to _____ explains, the Illinois State Board of Education (ISBE) has determined that absent advice to the contrary from us, the School district shall assume responsibility for an assistive technology device if the utilization of the device is specified as a supplemental aid in the student's IEP. We believe that it is reasonable for States to require school districts to assume liability for an assistive technology device that is family-owned, but used to implement a child's IEP.

I hope that the above information has been helpful. If we can be of further assistance, please let me know.

Sincerely,
Thomas Hehir
Director
Office of Special Education Programs

Enclosure

cc: Ms. Gail Lieberman
Illinois State Board of Education