Future Reflections Summer/Fall 1999, Vol. 18 No. 2

(back)(contents)(next)

IDEA - PART B FINAL REGULATIONS

Provisions of Interest to Parents and Educators of Blind and Visually Impaired Children

 

Excerpts reprinted from the Federal Register Vol. 64, No. 48, Friday, March 12, 1999/Rules and Regulations

From the Editor: Those of you who also get the Braille Monitor know that we in the National Federation of the Blind respect our readers. We believe you want the chance to study important documents firsthand, and not simply accept someone else's interpretation of them. When, for example, there is an important court case that readers ought to know about, the Braille Monitor editor quite often reprints in full the court decision and other documents, letters, etc. related to the case. So, with this well-established tradition set by the Braille Monitor as my guide, I am reprinting excerpts from the one document with which every parent of a disabled child should become familiar: the rules and regulations to the Individuals with Disabilities Education Act (IDEA) as promulgated by the U.S. Department of Education, Office of Special Education and Rehabilitative Services (OSERS).

As many readers know, IDEA is the law which ensures a "free appropriate education" (FAPE) for all disabled children. IDEA established the Individualized Education Program (IEP) process, ensures the rights of disabled children and their parents, and assists states with funding for the education of disabled children. The law was passed in 1975 and was originally titled "The Education for All Handicapped Children Act." The act has been amended several times over the years. The most recent amendments were passed in 1997. Among many other provisions, the 1997 amendments added sections about Braille and orientation and mobility.

Implementation of the act is the responsibility of OSERS. In order to fulfill that responsibility, OSERS issues rules and regulations, conducts training sessions, and monitors implementation in the states. In October 1997, OSERS issued a Notice of Proposed Rulemaking (NPRM) to amend the IDEA regulations in order to implement the changes made by the 1997 IDEA amendment. OSERS then asked for public comments on the proposed regulations (NPRM). The public’s comments were reviewed, the proposed regulations (NPRM) revised, and, in March 1999, OSERS issued the final regulations. These regulations were published in the Friday, March 12, 1999, Federal Register.

Although there are many sections in the final regulations which are of interest to parents, it seems to me that four parts are particularly important to parents of blind and visually impaired children. They are:

 

* Braille: part 300.346(a)(2)(iii);

* assistive technology: parts 300.5, 300.6, 300.308, and 300.346(a)(2)(v));

* orientation and mobility: part 300.24(b)(6); and

* travel training: part 300.26(a)(2)(ii) and 300.26(b)(4).

It's obvious why I chose Braille and orientation and mobility. These parts were added to IDEA by the 1997 amendments and are the only provisions that specifically address the unique educational needs of this population.

Assistive technology is obviously not specific to blind and visually impaired children, but I decided to include it in this excerpt because of the pervasive importance of technology devices and training in the education of blind and visually impaired children.

Travel training was included because of the potential that this service might be confused with orientation and mobility (O&M) services. It is particularly important for readers to note that O&M is now defined in the regulations as a "related service" and that it is specific to the blind and visually impaired population only. Travel training, however, is a special education service and is not limited to a particular disability group.

Finally, I also chose to reprint the comments pertinent to these parts from "Attachment 1-Analysis of Comments and Changes." These comments are not regulations but rather explanations intended to either clarify the regulations or provide useful guidance in the implementation of the regulations. Nevertheless, these comments do carry weight and are worth studying.

The National Federation of the Blind believes the interpretation given in the comment section regarding the provision of Braille instruction when there is a disagreement between a local education agency (LEA) and parents is inconsistent with the intent of the law. Please see the article on page 23 of this issue for details.

For more information about IDEA and the IDEA regulations you can visit the Department of Education web site at:

<http:/www.ed.gov/offices.OSERS>,

the NFB web site at:

<http:/www.nfb.org>, and/or the PACER web site at:

<http:/www.pacer.org>.

Usually these documents are also available for a small fee from the Governmental Printing House, but we have been informed that the March 12, 1999, Federal Register is sold out. If you do not have Internet access, we suggest you contact your local library and ask if they have, or can get, a copy of the March 12, 1999, Federal Register. You might also contact your senator and/or House representative and ask for their assistance in getting a copy.

IDEA - PART B FINAL REGULATIONS

Provisions of Interest to Parents and Educators of Blind and Visually Impaired Children

Excerpts reprinted from the Federal Register Vol. 64, No. 48, Friday, March 12, 1999/Rules and Regulations

 

300.5 Assistive technology device.

As used in this part, 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 a child with a disability.

(Authority: 20 U.S.C. 1401(1))

 

300.6 Assistive technology service.

As used in this part, Assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device.

The term includes-

(a)The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child's customary environment;

(b) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;

(c) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;

(d) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;

(e) Training or technical assistance for a child with a disability or, if appropriate, that child's family; and

(f) Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of that child.

(Authority: 20 U.S.C. 1401(2))

 

300.308 Assistive technology.

(a) 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—

(1) Special education under 300.26

(2) Related services under 300.24; or

(3) Supplementary aids and services under 300.28 and 300.550(b)(2).

(b) On a case-by-case basis, the use of school-purchased assistive technology devices in a child's home or in other settings is required if the child's IEP team determines that the child needs access to those devices in order to receive FAPE.

(Authority: 20 U.S.C. 1412(a)(12)(B)(i))

 

300.346 Development, review, and revision of IEP.

(a)(iii)(2) Consideration of special factors.

The IEP team also shall-

(i)…

(ii)…

(iii) In the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;

(iv)…

(v) Consider whether the child requires assistive technology devices and services.

(Authority: 20 U.S.C. 1414(d)(3) and (4)(B) and (e))

 

300.24 Related Services

(b)(6) Orientation and mobility services

(i) Means services provided to blind or visually impaired students by qualified personnel to enable those students to attain systematic orientation to and safe movement within their environments in school, home, and community; and

(ii) Includes teaching students the following, as appropriate;

(A) Spatial and environmental concepts and use of information received by the senses (such as sound, temperature, and vibrations) to establish, maintain, or regain orientation and line of travel (e.g. using sound at a traffic light to cross the street);

(B) To use the long cane to supplement visual travel skills or as a tool for safely negotiating the environment for students with no available travel vision;

(C) To understand and use remaining vision and distance low vision aids; and

(D) Other concepts, techniques, and tools.

(Authority: 20 U.S.C. 1401(22))

 

300.26 Special education.

(a) General. (1) As used in this part, the term special education means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including-

(i)….

(ii) Travel training; and

(iii)…

(b) Individual terms defined. The terms in this definition are defined as follows:

(1)…

(2)…

(3)…

(4) Travel training means providing instruction, as appropriate, to children with significant cognitive disabilities, and any other children with disabilities who require this instruction to enable them to-

(i) Develop an awareness of the environment in which they live; and

(ii) Learn the skills necessary to move effectively and safely from place to place within that environment (e.g. in school, in the home, at work, and in the community).

(5)…

(Authority: 20 U.S.C. 1401(25))

Attachment 1-Analysis of Comments and Changes

[Page 12537] The following is an analysis of the significant issues raised by the public comments received on the NPRM published on October 22, 1997 (62 FR 55026), and a description of the changes made in the proposed regulations since publication of the NPRM….

[Page 12589] Comment: With respect to the special factor considered for a child who is blind or visually impaired, [emphasis added] commenters requested that the regulation clarify that (1) Braille materials must be provided to students who are blind or visually impaired at the same time that their sighted peers receive the materials; (2) a child may not be denied Braille services on the basis that modified reading and writing media, other than Braille, are being provided; (3) when there is a disagreement about the use of Braille, Braille instruction must be provided until lawful procedures have culminated in a final decision; and (4) any child who meets the legal definition of blindness should be taught Braille.

Commenters also stated that other options besides Braille may be needed for certain students, as described in the "Policy Guidance on Educating Blind and Visually Impaired Students" (OSEP 96-4, dated 11/3/95), and requested that a note be added that includes much of the content of that document, or that a reference be made to that policy guidance paralleling Note 2 relating to students who are deaf or hard of hearing.

Discussion: Section 300.346(a)(2)(iii) of these final regulations adopts verbatim the statutory language at Section 614(d)(3)(B)(iii) of the Act. Under this requirement, in the case of a child who is blind or visually impaired, the IEP team must make provision for instruction in Braille and the use of Braille, unless the IEP team determines, after the evaluations described in the statutory provision, that instruction in Braille or the use of Braille is not appropriate for the child. Changes to statutory language requested by commenters should not be made.

Contrary to a suggestion of commenters, a regulatory provision making it mandatory for Braille to be taught to every child who is legally blind would contravene the individually-orientated focus of the Act, as well as the statutory requirement that the IEP team must make individual determinations for each child who is blind or visually impaired based on relevant evaluation data. As explained in OSEP Memorandum 96-4, Policy Guidance on Educating Blind and Visually Impaired Students, the IEP team's determination as to whether a child who is blind or visually impaired receives instruction in Braille or the use of Braille cannot be based on factors such as availability of alternative reading media, such as large print, recorded materials, or computers with speech output.

Additionally, although these regulations do not specify that a child for whom Braille instruction is determined appropriate must receive Braille materials at the same time they are provided to their sighted peers, once the IEP team determines that a child requires instruction in Braille, such instruction, along with other aspects of the child's IEP, must be implemented as soon as possible following the child's IEP meeting, and in any case, without undue delay. If there is disagreement between the parents and school district over what constitutes an appropriate program for a child who is blind or visually impaired, when the IEP team has determined that instruction in Braille would not be appropriate for the child, the parents of the child would have the right to request a due process hearing and mediation. In addition, parents have available to them mediation and complaint resolution by which they can file a complaint with the SEA under the State complaint procedures in these regulations.

Although the LEA would not be required to provide instruction in Braille while the dispute is being resolved, the LEA would be required, both by Part B and Section 504, to ensure that the child receives instructional materials in an alternative medium to enable the child to participate in the LEA's program.

The OSEP Policy Guidance on Educating Blind and Visually Impaired Students should not be included in these final regulations since many of the statutory and regulatory provisions cited in the policy guidance have been replaced by the requirements of Pub. L. 105-17. In some important respects, particularly with regard to consideration of instruction in Braille, Pub. L. 105-17 substantially revised the requirements of prior law….

[Page 12548] A number of commenters recommended that the final regulations clarify that orientation and mobility services [emphasis added] may be required by children with other disabilities, and that the services may be provided by personnel with different qualifications other than those serving persons who are blind or visually impaired. Other commenters requested that (1) the term "qualified personnel" should be deleted because using this term in this definition creates personnel problems for rural areas and for many urban settings, that orientation and mobility personnel are not used for all purposes listed, and not every state has a classification called orientation and mobility specialist; and (2) the option of providing orientation and mobility services in a student’s home would apply to students who may not be home-schooled and would violate the least restrictive environment requirements of the Act.

Several comments were also received on Note 2 (relating to orientation and mobility services and travel training). Some commenters requested that travel training be added as a separate related service with its own definition. The definition would be based on, or incorporate, the language from Note 2 relating to travel training. Other commenters suggested that it would be more accurate to refer to this type of training as mobility training.

A number of commenters requested that Note 2 be deleted because it was too expansive. Other commenters stated that (1) all references to travel training be dropped, since the term is not defined or even mentioned in the statute; (2) Note 2 expands services beyond the statute and will make orientation and mobility services extremely expensive and adversarial by requiring new personnel that are not available in rural areas and many urban areas; (3) Note 2 should not require a deliverable standard against which a school system might be held liable; and (4) travel training may be appropriate for other children with disabilities, but orientation and mobility specialists are not the personnel to provide these services....

[Page 12549] As stated by the commenters, some children with disabilities other than visual impairments need travel training [emphasis added] if they are to move safely and effectively within and outside their school environment, but these students (e.g., children with significant cognitive disabilities) do not need orientation and mobility services as that term is defined in these regulations. "Orientation and mobility services" is a term of art that is expressly related to children with visual impairments, and includes services that must be provided by qualified personnel who are trained to work with those children. No further changes to the definition of "orientation and mobility services" are needed, since the definition as written does not conflict with the Act's least restrictive environment requirements.

For some children with disabilities, such as children with significant cognitive disabilities, "travel training" is often an integral part of their special educational program in order for them to receive FAPE and be prepared for post-school activities such as employment and independent living. Travel training is important to enable students to attain systematic orientation to and safe movement within their environment in school, home, at work, and in the community. Therefore, the definition of "special education" should be amended to include a provision relating to the teaching of travel training, as appropriate, to children with significant cognitive disabilities, and any other disabled children who require such services. The regulations should not substitute the term "mobility training," since the legislative history (S Rep. No. 105-17, p. 6; H.R. Rep. No. 105-95, p. 86) recognizes that "orientation and mobility" services are generally recognized as for blind children while children with other disabilities may need travel training. In light of this regulatory change, Note 2 following this section of the NPRM should be removed.

[Page 12539] Assistive Technology Devices and Services (300.5 and 300.6)

Comment: Some commenters recommended that assistive technology devices and services be listed as a related service under 300.22, as well as defined separately under 300.5 and 300.6. Some commenters also recommended changes that would alter the statutory definitions of these terms. A few commenters requested that 300.5 and 300.6 be amended to add language clarifying that assistive technology devices and services are only required for a disabled child if necessary for the child to benefit from special education. A few commenters stated that the regulations should clarify public agency responsibility for providing personal devices, such as eyeglasses, hearing aids, braces, and medication, while other commenters recommended that the regulations make explicit that public agencies are not responsible for providing personally-prescribed devices under these regulations. Commenters also requested that the regulations include examples of assistive technology devices for children, including a range of high to low technology devices, such as postural supports, mobility aids, and positioning equipment. Commenters also requested clarification on how school districts draw distinctions between a child's need for an assistive technology device and a parent's desire for the child to have the newest and best device on the market.

Discussion: As stated in the note following 300.6 of the NPRM, the definitions of "Assistive technology device" and "Assistive technology service" in sections 602(1) and 602(2) of the Act are substantially identical to the definitions of those terms used in the Technology-Related Assistance for Individuals with Disabilities Act of 1988, as amended (Tech Act). Since 300.5-300.6 essentially adopt the statutory definitions of these terms, no changes to these statutory definitions should be made in these final regulations. However, consistent with Part B, the words "child with a disability" were substituted for the statutory reference to individual with a disability found in the definitions contained in the Tech Act. In addition, in light of the general decision not to use notes in these final regulations, the note to 300.6 of the NPRM should be removed.

Section 300.308 of these regulations specifies that an assistive technology device or service is only required if it is determined, through the IEP process, to be (1) special education, as defined in 300.26, (2) related services, as defined in 300.24, or (3) supplementary aids and services, as defined in 300.28. No further clarification should be provided, and references to 300.308 should not be included in the definition of "related services" under 300.24 or "special education" under 300.26. Section 300.308 is sufficient to explain how a determination about a child's need for an assistive technology device or service is made.

As a general matter, public agencies are not responsible for providing personal devices, such as eyeglasses or hearing aids or braces, that a disabled child requires regardless of whether he or she is attending school. However, if a child's IEP team specifies that a child requires a personal device in order to receive FAPE, the public agency must provide the device at no cost to the child's parents. Consistent with section 612(a)(12) of the Act, public agencies that are otherwise obligated under Federal or State law or assigned responsibility under State policy or interagency agreement or other mechanisms to provide or pay for any services that are also considered special education or related services, including devices that are necessary for ensuring FAPE, must fulfill that obligation or responsibility, either directly or through contract or other arrangement.

Regarding responsibilities relative to medication under 300.5, medication is an excluded "medical service," and is not the responsibility of a public agency under these regulations; therefore, the change suggested by commenters is not warranted.

Further examples of assistive technology are not necessary within these regulations. Because the definitions of assistive technology devices and services have been included in these regulations for over five years and have been included in the Tech Act since 1988, most public agencies should be informed about those devices and services for purposes of implementing these regulations. Examples of assistive technology devices and services and other relevant information may be available through one of the technical assistance providers funded by the National Institute on Disability and Rehabilitation Research in the Office of Special Education and Rehabilitative Services (OSERS) or other technical assistance providers funded by OSERS.

Changes: the note following 300.6 has been removed.

Comment: Some commenters asked for clarification that (1) the statutory provision encompasses both a child's own assistive technology needs (e.g., electronic note takers, cassette recorders, and speech synthesizers), as well as access to general technology used by all students, (2) a child with a disability may take assistive technology devices home for use on homework and other assignments, as well as for use in the community, and (3) school districts have continuing responsibility for installation, repair, and maintenance of devices. These commenters added that in order to fully benefit from assistive technology, children with disabilities must be able to use it on all school-work assignments, whether done in the classroom or at home or in the community; and LEAs must ensure that children, their teachers, and other personnel receive the necessary in-service instruction on the operation and maintenance of technology. Other commenters requested that the final regulations specify in the text of the regulations or in a note (1) the right of children with disabilities to take devices home or to other settings, as needed, and (2) the issue of ownership and responsibility.

Discussion: The provision of assistive technology devices and services is limited to those situations in which they are required in order for a disabled child to receive FAPE. However, subject to this limitation, commenters are correct that (1) "assistive technology" encompasses both a disabled child's own personal needs for assistive technology devices (e.g. electronic note takers, cassette recorders, etc.), as well as access to general technology devices used by all students, and (2) if an eligible child is unable, without a specific accommodation, to use a technology device used by all students, the agency must ensure that the necessary accommodation is provided. Further, commenters are correct that LEAs must ensure that students, their teachers, and other personnel receive the necessary in-service instruction on the operation and maintenance of technology.

Finally, 300.308 of these final regulations should be amended to clarify that, on a case-by-case basis, the use of school-purchased assistive technology devices in a child's home or in other settings is required if the child's IEP team determines that the child needs to have access to those devices in order to receive FAPE. The assistive technology devices that are necessary to ensure FAPE must be provided at no cost to the parents, and the parents cannot be charged for normal use, and wear and tear. However, while ownership of the device in these circumstances would remain with the public agency, State law, rather than Part B. generally would govern whether parents are liable for loss, theft, or damage due to negligence or misuse of publicly-owned equipment used at home or in other settings in accordance with a child's IEP.

Changes: No change has been made to this section in response to these comments. However, 300.308 has been amended, consistent with the above discussion.

(back)(contents)(next)