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    April 6, 1992

    Dear :

    This is in response to your letter to the U.S. Department of Education's Office of Special Education Programs (OSEP), concerning your son, who has a bilaterally sloping hearing loss. According to your letter, the local school system has not permitted him to use an FM auditory training system, and you are requesting any information available on the criteria used in schools to allow or deny the use of such systems.

    Part B of the Individuals with Disabilities Education Act (Part B) requires that a free appropriate public education (FAPE) must be made available to all eligible children with one or more of thirteen specified disabling conditions who are identified and evaluated as needing special education and related services. As part of the local educational agency's (LEA) obligation to provide FAPE, the LEA must make available to the child special education and related services without charge, in conformity with an individualized education program (IEP). See 34 CFR 300.4(a) and (d) of the enclosed Part B regulations. The IEP developed for a child must contain, among other components, a statement of the specific education and related services to be provided to the child. See 34 CFR 300.346(c). This IEP must be developed at a meeting that includes parents and school officials. See 34 CFR 300.343-300.344. OSEP's August 10, 1990 letter to Ms. Susan Goodman (copy enclosed), on the subject of the provision of assistive technology devices and services, states that if the participants on the IEP team determine that a child with disabilities requires assistive technology in order to receive FAPE, and designate such assistive technology as either special education or as a related service, the child's IEP must include a specific statement requiring the provision of such services, including the nature and amount of such services. A State educational agency (SEA) or an LEA may have certain criteria to follow in the development of the IEP. However, any criteria that are established must be consistent with Part B requirement.

    The United States Congress recognized the emerging role of "assistive technology devices" and "assistive technology services" in the provision of special education and related services when, as part of its reauthorization of Part B by the Education of the Handicapped Act Amendments of 1990, it included definitions for both of these terms. An "assistive technology device" is defined as "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 individuals with disabilities." See 20 U.S.C. 1401(a)(25). An FM auditory system is an "item or piece of equipment" that would be considered an assistive technology device, and it could be designated as special education or as a related service by an IEP team.

    Your letter does not state whether your son is currently receiving special education and related services in accordance with a properly-developed IEP. If your son has a current IEP, the use of the FM auditory system should have been discussed as part of the meeting to develop the IEP. If the use of this device was not discussed at the IEP meeting, you can request that the IEP meeting be reconvened to discuss the use of the FM auditory system. If your son is not currently receiving special education and related services, you can request that your local school district conduct an evaluation to determine your son's educational needs, and, if a disability is identified, to develop an IEP. If the evaluation determines that special education and related services are required and an IEP subsequently is developed, you can, at that time, emphasize your son's need for the FM auditory system. In either instance, if you feel that your son is entitled to but is not receiving FAPE, you can request that the LEA conduct an impartial due process hearing. See 34 CFR 300.506. The Part B regulations at 34 CFR 300.506-300.513 set forth the procedures that must be followed in conducting due process hearings, including the requirement that a final decision must be reached in the hearing not later than 45 days after the receipt of your request for such a hearing.

    In addition to your right to request a due process hearing, you can file a complaint with the SEA. The Education Department General Administrative Regulations (EDGAR), AT 34 CFR 76.780-76.782 (copy enclosed), require that the SEA resolve any complaint alleging that the State or a subgrantee is violating a Federal statute or regulation, within 60 calendar days after it receives such a complaint. You can file a complaint with the SEA official listed below, at the following address and telephone number:
    Dr. Raymond A. Horn
    Assistant Superintendent
    Division of Special Education
    Ohio Department of Education
    933 High Street
    Worthington, Ohio 43085-4087
    Telephone: (614) 466-2650

    Your allegation that your local school district did not permit your son to use the FM auditory training system also raises a possible violation of Section 504 of the Rehabilitation Act of 1973 (Section 504). Section 504 is a Federal law that prohibits discrimination against persons with disabilities by programs or activities that receive Federal financial assistance. The U.S. Department of Education's Office for Civil Rights is responsible for enforcing Section 504. Because of the possibility of a Section 504 violation, we have referred your letter to OCR. If you wish to contact OCR directly concerning your allegation, you can write to the OCR official listed below at the following address:
    Ms. Jean P. Pellen
    Acting Director
    Policy and Enforcement Service
    Office for Civil Rights
    U.S. Department of Education
    Switzer Building, Room 5036
    400 Maryland Avenue, SW
    Washington, DC 20202-1174
    For tracking purposes, OSEP has assigned this case the following number:

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

    Judy A. Schrag
    Office of Special Education Programs



1 ECLPR  216

Requests for a copy of the original letter, or questions regarding the letter, may be directed to OSEP.  

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