Dear Dr. Seiler:
This is in response to your letter to Dr. Judy A. Schrag, former Director of the
Office of Special Education Programs (OSEP), in which you seek a response to the following
question:
If a student needs a hearing aid (assistive device), is the school district
responsible for purchasing the device under the new (Individuals with Disabilities
Education Act) IDEA if the device is put on the student's (individualized education
program) IEP?
Historically, it has been the policy of this office that a public agency was not
required to purchase a hearing aid for a student who was deaf or hearing impaired because
a public agency is not responsible for providing a personal device that the student would
require regardless of whether he/she was attending school. However, this policy does not
apply to a situation where a public agency determines that a child with a disability
requires a hearing aid in order to receive a free appropriate public education (FAPE), and
the child's individualized education program (IEP) specifies that the child needs a
hearing aid.
As your letter recognizes, Public Law 101-476, the Education of the Handicapped Act
Amendments of 1990, amended IDEA by adding definitions of the terms "assistive
technology device" and "assistive technology service." 20 U.S.C. § 1401(a)
(25)-(a) (26). amended the regulations implementing Part B of IDEA by adding the following
three regulatory provisions. New definitions of the terms "assistive technology
device" and "assistive technology service," which essentially tracked the
statutory language, were added at §§ 300.5-300.6. As applied to your specific inquiry,
the term "assistive technology device," means "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
children with disabilities." 34 CFR § 300.5 (copy enclosed). A device such as a
hearing aid could be a covered device under this definition. In addition, under the new §
300.38, each public agency must ensure that assistive technology devices and assistive
technology services, or both, as those terms are defined in 34 CFR §§ 300.5 and 300.6,
are made available to a child with a disability if required as part of a child's special
education under § 300.17, related services under § 300.16, or supplementary aids and
services under § 300.550 (b) (2). Under Part B, each child's IEP must contain, among
other elements, a statement of the specific special education and related services to be
provided to the child. 34 CFR § 300.346 (a) (3). In addition, any supplementary aids or
services to be provided to the child in connection with the child's placement in the
regular educational environment must be described in his or her IEP. Appendix C to 34 CFR
Part 300, question 48. Therefore, a determination of whether a child with a disability
requires an assistive technology device and/or service in order to receive FAPE must be
made by the participants on that child's IEP team in accordance with applicable IEP
requirements.
Previously, the Department has provided guidance on the scope of a public agency's
responsibility to provide assistive technology devices or services to children with
disabilities in accordance with the requirements of Part B. In response to public comments
on the proposed § 300.38, the Department provided the following pertinent discussion in
the Analysis of Comments and Changes that accompanied the final regulations:
...the requirement in § 300.308 limits the provision of assistive technology to
educational relevancy--i.e., an assistive technology device or service is required if it
is determined, through the IEP process, to be (1) special education, as defined in §
300.17, (2) a related service, as defined in § 300.16, or (3) supplementary aids and
services required to enable a child to be educated in the least restrictive environment.
The Secretary believes that the effect of § 300.308 is to limit the provision of
assistive technology devices and services to those situations in which they are required
in order for a child to receive FAPE.
57 Fed. Reg. 44794, 44841 (Sept. 29, 1992 (copy enclosed) ).
Thus, participants at the meeting held to develop a child's IEP must determine
whether, in light of a particular child's educational needs, the public agency must make
an assistive technology device and/or service available in order for the child to receive
FAPE. In the situation you describe, the IEP team has determined that the child requires a
hearing aid in order to receive FAPE, and the child's IEP reflects the need for the
hearing aid. Accordingly, the public agency would be responsible for providing the hearing
aid at no cost to the child and his or her parents.
I hope that this information is helpful. If I can be of any further assistance
please let me know.
Sincerely,
Thomas Hehir
Director
Office of Special Education Programs
