We are currently remodeling

Skip Navigation

Main Navigation Bar (Deactivated)

Education

UCP’s Education Channel provides resources for parents, teachers, and others involved in the education of students with disabilities and other special needs.

Go back to top

Education

For Families

OSEP Policy Letters

Adapted for the Assistive Technology Funding and Systems Change Project
March 29, 1995

The following documents are texts of OSEP Policy Letters issued:
August 10, 1990
November 27, 1991
January 21, 1993
The beginning of each letter is marked by ***

***

United States Department of Education
Office of Special Education and Rehabilitative Services

August 10, 1990

Ms. Susan Goodman
Lawyer/Consultant
18182 Headwaters Drive
Olney, Maryland 20832

Dear Ms. Goodman:

This is in response to your recent letter to the Office of Special Education Programs (OSEP) concerning obligations of public agencies under Part B of the Education of the Handicapped Act (EHA-B) to provide assistive technology to children with handicaps.

Specifically, your letter asks:

  1. Can a school district presumptively deny assistive technology to a handicapped student?

  2. Should the need for assistive technology be considered on an individual case-by-case basis in the development of the child's Individual Education Program?

In brief, it is impermissible under EHA-B for public agencies (including school districts) "to presumptively deny ;assistive technology" to a child with handicaps before a determination is made as to whether such technology is an element of a free appropriate public education (FAPE) for that child. Thus, consideration of a child's need for assistive technology must occur on a case-by-case basis in connection with the development of a child's individualized education program (IEP).

We note that your inquiry does not define the term "assistive technology" and that the term is not used either in the EHA-B statute or regulations. The Technology-Related Assistance for Individuals with Disabilities Act of 1988, Pub. L. 100-407, contains broad definitions of both the terms "assistive technology device" and "assistive technology service." See Section 3 of Pub. L. 100- 407, codified as 29 U.S.C. 2201, 2202. Our response will use "assistive technology" to encompass both "assistive technology services" and "assistive technology devices."

Under EHA-B, State and local educational agencies have a responsibility to ensure that eligible children with handicaps receive FAPE, which includes the provision of special education and related services without charge, in conformity with an IEP. 20 U.S.C. 1401(18); 34 CFR 300.4, (a) and (d). The term "special education" is defined as "specially designed instruction, at no cost to the parent, to meet the unique needs of a handicapped child . . . . " 34 CFR 300.14(a). Further, "related services" is defined as including "transportation and such developmental, corrective, and other supportive services as are required to assist a handicapped child to benefit from special education." 34 CFR 300.13(a).

The EHA-B regulation includes as examples 13 services that qualify as "related services" under EHA-B. See 34 CFR 300.13(b)(1)-(13). We emphasize that this list "is not exhaustive and may include other developmental, corrective, or other supportive services...if they are required to assist a handicapped child to benefit from special education." 34 CFR 300.13 and Comment. Thus, under EHA-B, "assistive technology" could qualify as "special education" or "related services."

A determination of what is an appropriate educational program for each child must be individualized and must be reflected in the content of each child's IEP. Each child's IEP must be developed at a meeting which includes parents and school officials. 34 CFR 300.343-300.344. Thus, if the participants on the IEP team determine that a child with handicaps requires assistive technology in order to receive FAPE, and designate such assistive technology as either special education or a related services, the child's IEP must include a specific statement of such services, including the nature and amount of such services. 34 CFR 300.346(c); App. C to 34 CFR Part 300 (Ques.51).

EHA-B's least restrictive environment (LRE) provisions require each agency to ensure "(t)hat special classes, separate schooling or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 34 CFR 300.550(b)(2); see also Analysis to Final Regulations published as Appendix A to 45 CFR Part 121a, 42 F.R. 42511-13 (August 23, 1977). Assistive technology can be a form of supplementary aid or service utilized to facilitate a child's education in a regular educational environment. Such supplementary aids and services, or modifications to the regular education program, must be included in a child's IEP. Id. Appendix C to 34 CFR part 300 (ques. 48).

In sum, a child's need for assistive technology must be determined on a case-by-case basis and could be special education, related services or supplementary aids and services for children with handicaps who are educated in regular classes.

I hope the above information has been helpful. If we may provide further assistance, please let me know.

Sincerely,
Judy A.Schrag, Ed.D.
Director
Office of Special Education Programs

***

United States Department of Education
Office of Special Education and Rehabilitative Services

November 27, 1991

Dear (name deleted)

This is response to your recent letter to the Office of Special Education Programs (OSEP) requesting a copy of any OSEP policy clarifications on assistive technology, as well as asking specific questions concerning the assistive technology needs for your (deleted). You also ask a question about the time limits for implementation of an individualized education program (IEP).

In response to your request, I am enclosing a copy of OSEP's August 10, 1990 letter to Ms. Susan Goodman concerning the obligations of public agencies under Part B of the Individuals with Disabilities Education Act (Part B), formerly cited as part B of the Education of the Handicapped Act, to provide assistive technology to children with disabilities, along with some additional information on assistive technology and a copy of the Part B regulations. I would also like to provide you with OSEP's response to each of your specific questions as stated below.

"I would like to make the request to the appropriate officials for another CCTV for home use to accomplish the same results as is done in school. (For homework, reading books, any assignment from school)."

The IEP, which must be developed at a meeting that includes parents and school officials, must contain, among other things, a statement of the specific special education and related services to be provided to the child. See 34 CFR 300.343-300.346. As stated in OSEP's letter to Ms. Goodman, if the IEP team determines (that a child with disabilities requires assistive technology in order to receive a free appropriate public education (FAPE), and designate such assistive technology as either special education or a related service, the child's IEP must include a specific statement of such services, including nature and amount of such services. See 34 CFR 300.346 (c); App. C to 34 CFR Part 300 (Ques. 51). The need for assistive technology is determined on a case-by-case basis, taking into consideration the unique need of each individual child. If the IEP team determines that a particular assistive technology item is required for home use in order for a particular child to be provided FAPE, the technology must be provided to implement the IEP.

"If the committee approves this request, it will go to the School Board for approval. I would like to know what happens if the School Board doesn't approve the proposal? Is it impartial hearing time?"

As part of the public agency's Part B obligation to provide FAPE to an eligible child with disabilities, the public agency must ensure that special education and related services are provided in conformity with an IEP which meets the requirements of 34 CFR 300.340-300.349. One requirement, at 34 CFR 300.343(a), is that the public agency conduct a meeting to develop, review, and revise a child's IEP. The Regulations require that certain participants attend the IEP meeting. See 34 CFR 300.344. The role of the participants at the IEP meeting is to determine the specific special education and related services that a child needs in order to receive FAPE. Once the determination is made at a meeting convened pursuant to 34 CFR 300.343(a), Part B does not recognize any authority on the part of a local School Board to unilaterally change the statement of special education and related services contained in the IEP. After the IEP is developed and the placement decision is made by a group of persons knowledgeable about the child, the meaning of the evaluation data and placement options, the public agency must implement the IEP. See 34 CFR 300.533 (a) (3). Without reconvening the IEP meeting, the local school board could not change the IEP.

"Is there a time limit on implementation of updated IEP's (?) Every year I have long delays on implementation of Board approved IEP's(.) "

Part B imposes no specific time limits for the implementation of IEPs. The Part B regulations at 34 CFR 300.342(b) require that an IEP (1) must be in effect before special education and related services are provided to a child; and (2) must be implemented as soon as possible following the meetings required to develop, review or revise a child's IEP. The answer to Question 4 in Appendix C to the Part 300 regulations states that no delay is permissible between the time a child's IEP is finalized and when special education and related services is provided. It is expected that the special education and related services set out in the IEP will be provided by the agency beginning immediately after the IEP is finalized. In certain circumstances such as when the IEP meeting occurs during the summer or a vacation period, or where there are circumstances which require a short delay (e.g. working out transportation arrangements) the implementation may not be immediate. See Comment 34 CFR 300.342.

I hope that this information is helpful to you. Please let us know if you have any additional questions or concerns.

Sincerely,
Judy A. Schrag
Director
Office of Special Education Programs
Enclosures

***

United States Department of Education
Office of Special Education and Rehabilitative Services

January 21, 1993

Ms. Janet McCarty
Director, Private Health Plans Branch
Healthcare Financing Division
American Speech-Language-Hearing Association
10801 Rockville Pike
Rockville, Maryland 20852

Dear Ms. McCarty:

This is in response to your letter dated January 30, 1992, in which you requested clarification regarding the impact of Part B of the Individuals with Disabilities Education Act (Part B) on the responsibility of health insurance companies and health plans to pay for healthcare services, such as speech-language pathology and audiology, to children with disabilities who are eligible to receive similar services as educational services under Part B.

Part B sets forth the responsibility of each State to ensure that needed special education and related services are made available, as part of a free appropriate public education, to each eligible child with a disability. 34 CFR 300.300. Special education and related services that a child needs as part of a free appropriate public education must be provided "without charge" to the child or the child's family. See 34 CFR 300.8(a). Part B neither prescribes nor restricts the responsibility of health insurance companies or health plans to pay for healthcare services to which a child might also be entitled as special education or related services under Part B; the responsibility of health insurance companies or health plans to pay for healthcare services to which a child might also be entitled as special education or related services under Part B; ;the responsibility of those providers must be determined under the terms of the relevant contracts or agreements and State law. part B does, however, clarify at 34 CFR 300.301, that: "Each State may use whatever State, local, Federal, and private sources of support are available in the State to meet the requirements of (Part B). . . . .Nothing in this part relieves an insurer or similar third part from an otherwise valid obligation to provide or to pay for services provided to a child (with a disability)."

Although Part B does not relieve insurers of their responsibility to pay for services, as explained in the enclosed Notice of Interpretation, published at 45 Fed. Reg. 86390 (December 30, 1980), it does prohibit public agencies from "requiring parents, where they would incur a financial cost, to use insurance proceeds to pay for services that must be provided to a (child with disabilities) under the "free appropriate public education requirements" of (Part B and Section 504 of the Rehabilitation Act of 1973)." (Emphasis added).

In December 1980 Notice of Interpretation, we clarified that:

the requirements that a free appropriate public education be provided "without charge" or without cost" .. . mean that an agency may not compel parents to file an insurance claim when filing the claim would pose a realistic threat that the parents of children (with disabilities) would suffer a financial loss not incurred by similarly situated parents of children (who do not have disabilities). Financial losses include, but are not limited to, the following:

  1. A decrease in available lifetime coverage or any other benefit under an insurance policy;
  2. An increase in premiums under an insurance policy; or
  3. An out-of-pocket expense, such as the payment of a deductible amount incurred in filing a claim.

Further, a public agency may not deny special education or related services to a child because the parent does not consent to the use of private insurance to pay for services to which the child is entitled as part of a free appropriate public education.

I hope that this response will be of assistance to you. If you have any further questions, please call Larry Ringer of my staff at (202) 205-9079.

Sincerely,
Judy A. Schrag
Director
Office of Special Education Programs
Enclosures

The opinions expressed herein do not necessarily reflect the position or the policy of the U.S. Department of Education, and no official endorsement by the U.S. Department of Education of the opinions expressed herein should be inferred.