ACSES Members Maureen O'Leary Burness State Special Education Task Force Matt Devins Stanislaus County SELPA Spring 2020 Denise Edge Dear Colleague: Desert-Mountain SELPA Welcome to our Special Education Symposium! Trina Frazier Fresno County SELPA As we conclude the 2019-2020 season of Symposia, F3 would like to take this Sean Goldman opportunity to express our sincere appreciation for your hard work and Simi Valley Unified School ongoing commitment to serving the needs of your students. We recognize District your participation in today’s event as a demonstration of your dedication to professional excellence and learning. John Laughlin Sonoma County Office of Education We strive to design all our Symposia to provide you with the most current legal information and case law analysis —combined with “practice Rebecca Nobriga pointers”— in selected important topic areas relevant to the provision of Vista Unified School special education services in California. In planning future sessions, we gain District our most valuable insight from your comments. Please use the evaluation form in your binder to let us know your ideas and suggestions for how we can Zhanna Preston Murrieta Valley Unified better serve you. School District We begin today’s session with “ Here and Now: Assistive Technology and Jason Ramirez FAPE. ” Both the IDEA and California law require IEP teams to consider Moreno Valley Unified whether a student with a disability requires assistive technology devices School District and/or services to receive a FAPE. Technology advances and emerging case Linda Simlick law pose increasing challenges for districts to comply with this legal mandate. San Juan Unified School This session examines AT through an overview of statutes — including the District new California law requiring districts to increase students’ access to AT— and regulations, recent decisions and official guidance. Kimberly Velez Temecula Valley Unified In our s econd presentation, “ All Things Considered: English Learners with School District Disabilities, ” our focus on ELs provides legal insight into the process of Janice Von Arx referral and identification, assessment plans and procedures, ensuring San Diego County Office of meaningful parental participation, and the provision of appropriate IEP Education services. Drawing on specific OAH case examples, we will also provide practical take-away compliance strategies to help you better meet your Betty Jo Wessinger educational responsibilities to ELs with disabilities. Folsom Cordova Unified School District After lunch, in “ Spotlight on Practice: Service Animals at School ,” we look at the intersection of various statutes governing the rights of students to bring their service animal to school and provide practical lessons from judicial and administrative decisions — as well as federal regulations and guidance — in this still-developing area of law. The day closes with our popu lar “Legal Update,” where we cover i mportant new case law decisions, recent guidance and other legal developments affecting special education in California. This session helps you stay current with all the latest issues in special education law.
On behalf of everyone at F3, thank you for attending. Please remember to take some time away from the sessions to catch up with friends and colleagues. We hope you have a very enjoyable day! Respectfully, Fagen Friedman & Fulfrost LLP Shawn Olson Brown, Partner Co-Coordinator, Special Education Symposium Anne M. Sherlock, Partner Co-Coordinator, Special Education Symposium Co-Chair, F3 Special Education & Student Practice Group John W. Norlin Content Developer, Special Education Symposium Melanie Larzul Co-Chair, F3 Special Education & Student Practice Group
19 Here and Now: Assistive Technology and FAPE
1 Here and Now Assistive Technology and FAPE 1 1 What We’ll Examine Today . . . Definitions, Exclusions and AT Provider Requirements AT Assessments Law Case Examples AT as Component of Substantive FAPE Law Case Examples AT and “Effective Communication” Obligations Under the ADA 2 2 I. Definitions, Exclusions and AT Provider Requirements 3 3
2 Legal Standard IEP team must consider whether student requires “assistive technology devices and services” in order to receive FAPE Districts must ensure that AT devices and services are made available to each student if required as part of student’s special education, related services or supplementary aids and services (34 C.F.R. § 300.105; 34 C.F.R. § 300.324; Ed. Code, § 56341, subd. (b)) 4 4 AT Definitions Assistive Technology Device “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 the functional capabilities of a child with a disability” (34 C.F.R. § 300.5; Ed. Code, § 56020.5) 5 5 Exclusions AT generally does not include: Surgically implanted medical devices But district must ensure external components of those devices, including cochlear implants, are functioning properly Personally prescribed devices, such as eyeglasses and hearing aids But if device is included in IEP as component of FAPE, then district may be responsible for providing it (34 C.F.R. § 300.113; Ed. Code, § 56345; Letter to Bachus (OSEP 1995) 22 IDELR 629; Letter to Galloway (OSEP 1994) 22 IDELR 373) 6 6
3 AT Definitions Assistive Technology Service Any service that “directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device” Includes: Evaluation Purchase/lease “Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing” device Coordinating, training/technical assistance (34 C.F.R. § 300.6; Cal. Code Regs., tit. 5, § 3051.19) 7 7 AT Provider Requirements Personnel qualified to provide AT services: License in PT or OT License in Speech/Language Pathology OR one of following: Baccalaureate degree in engineering with emphasis in AT Baccalaureate degree in related field of engineering with graduate certificate in rehabilitation technology or AT Certification from Rehabilitation Engineering and AT Society of North America and AT Provider (RESNA/AT) Post-secondary certificate in AT applications Credential for physically impaired, orthopedically impaired or severely impaired (Cal. Code Regs., tit. 5, § 3051.19) 8 8 II. AT Assessments 9 9
4 Legal Requirements No express specific requirements in federal or state law for formal AT assessments OSEP: District must assess student’s functional capabilities and determine “whether they may be increased, maintained, or improved through the use of” AT devices or services (Letter to Fisher (OSEP 1995) 23 IDELR 565) 10 10 Legal Requirements Failure to assess when needed (or inadequate and/or incomplete assessment) can result in procedural denial of FAPE Parents have right to IEE if they disagree with AT assessment or if no assessment is conducted and is needed District may not be liable for failure to conduct (or complete) AT assessment if parents’ actions or lack of cooperation impede assessment (North Hills School Dist. v. M.B., 65 IDELR 150 (Pa. Commw. Ct. 2015); District of Columbia Pub. Schools (SEA DC 2015) 67 IDELR 134; Student v. Garvey School Dist. (OAH 2019) Case No. 2019030004, 119 LRP 38328) 11 11 Comprehensive Assessment Supports Conclusion that Student Did Not Need AT Los Angeles USD (OAH 2019) District conducted AT assessment for 8-year-old Student with autism Assessor thoroughly examined all aspects of Student’s needs, conducted trials, interviewed teachers and service providers, and observed Student Special ed teacher did not report any AT concerns Assessment report appropriately concluded Student did not require AT because it would not help with foundational skills (reading and writing) and Student was not prepared to use AT devices (Student v. Los Angeles Unified School Dist. and Los Angeles Unified School Dist. v. Student (OAH 2019) Case Nos. 2018060459 and 2018100624) 12 12
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