Tracy Lapreziosa  0:06  
Welcome back to Assistive Technology and Special Education Law. This is Episode Five, Case Law - Failure to Implement Recommendations for Assistive Technology. If this is your first time joining us, don't forget to catch up with other episodes in this series.

Judy Gran  0:22  
The next group of cases is about failure to implement recommendations for assistive technology. Christy's case involved a student in high school, whose district was ordered to conduct an independent evaluation for assistive technology as, as you probably know under IDEA a parent can request an independent evaluation at public expense whenever she disagrees with the school district's evaluation and The burden then passes to the district to prove that its own evaluation is appropriate. And it would have to do that in a due process hearing, or else it has to pay for the independent evaluation and let it go forward. And the district apparently didn't do the do the right thing with respect to that. So it was ordered to provide the independent evaluation and that evaluation identified assistive technology needs. However, the district then went on to develop an IEP for Christie that had no assistive technology goals. And the hearing officer held that that IEP was inadequate, because it did not address her identified needs for assistive technology.

Judy Gran  1:48  
The next case, Carola's, involved a student who had Reflex Sympathetic Dystrophy and Regional Pain Syndrome. And her physician, because this is a medical condition, had suggested the use of a computer for note taking and school writing assignments. And her parents asked for a laptop from the district and the district didn't provide it. So they had a hearing. 

Judy Gran  2:23  
And after the hearing she received an independent evaluation and compensatory education in the form of video, audio and software programs. That's kind of an interesting point that compensatory education can take many forms. It is really up to the hearing officer to decide how to award it. After the hearing, after that order came down, the district provided a device called a Dream Writer and two instruction manuals but they didn't provide anyone with any training and her family was unable to Figure out how to use the dream writer. And 10 months later took it back to the district without having used it. And then there were some other glitches along the way, which happened in school districts such as the independent evaluation being delayed because the district assistive technology staff were not available for the IEP meeting.

Judy Gran  3:24  
And another due process hearing took place after that. And the hearing officer ordered two hours a day of compensatory education as a remedy for the district's failure to implement the assistive technology recommendations in a timely manner, including of course, the training recommendation.

Judy Gran  3:46  
Hakeem, sorry, I gave him another name at some point. Hakeem had cerebral palsy and significant delays in language. And the issue in his case was whether a school district could limit the use of a laptop or other assistive technology device to the classroom as the district wanted to do. The school district had made a laptop available, but only in the classroom. And after a due process hearing, the district was ordered to provide the laptop in and out of school to use at home and in and in the community.

Judy Gran  4:24  
And the school district still refused to provide the laptop. And there had to be a second hearing and an appeal to the appeals panel to get them to actually do it. And the hearing officer found that this student would require special educate special software and peripherals to derive even a even a minimal benefit from the use of a computer. So the district was ordered to provide a laptop, voice activation Software, a printer, and a modem. 

Judy Gran  5:06  
The case of Alba, which was decided just recently by a federal court in New York is a very moving and in some ways tragic case. Some of you may have heard of Alba, about goodness, 14 years ago, when President Clinton was at a an open house at the White House, there was some sort of event at the White House. And Alba had a twin named Anastasia. And they were quite young at the time. So in elementary school, I think, and Anastasia came up to President Clinton and talked about her sister who had severe disabilities including quadraplegia, cerebral palsy, and she didn't speak. And she was placed in a different school building and segregated classrooms. And Anastasia asked President Clinton why her sister couldn't go to the same school that she did. And as a result, the President took a personal interest in Alba's situation and used his influence to enable her to go to school in her home school with her twin. And she did. The only problem was that she really wasn't provided services there. I'm not sure that the school district could have provided the services in any setting that she needed.

Judy Gran  6:49  
But she was really kind of languishing in the classroom and no one really was able to evaluate her because she didn't speak and she had so many more motoric problems that all the testing that can be done to that relies on either speech or motor control it just wasn't, wasn't working with her. Finally in 1991 1993 sorry this was shortly after President Clinton had met her and Alba was nine at the time. an assistive technology specialist named Dr. Blau evaluated Alba and found that she had an IQ of 132. But she was performing at a first grade level, and no assistive technology was being used. And her recommendations were presented to the Board of Education of the New York City schools. And they chose not to implement those recommendations. 

Judy Gran  8:03  
Alba was placed in regular class and provided a watered down curriculum rather than the services recommended by Dr. Blau. That meant that the district simply simplified everything in the regular curriculum. They modified it. But she really didn't need a watered down curriculum. She didn't need it to be simplified. She needed to be taught how to read, write and use technology to be able to do those things. 

Judy Gran  8:34  
Finally, skipping forward to 2002. Many years later, Alba graduated from high school and her skills at that point were at a kindergarten to fourth grade level depending on the subject. She's really not benefited as she should have from her education there. At that point, Dr. Blau came back into the picture and developed a program for Alba. And finally the Department of Education agreed to implement the program at Queens College on the campus.

Judy Gran  9:11  
And it was a pretty intensive program. But it had to be because Alba was really far behind. And it consisted of a full time teacher, a full time paraprofessional, transportation, and extensive use of computer technology, including a laptop, loaded with specialized software and mounted on her wheelchair. And that was her primary communication device. And Alba benefited tremendously from this program. Her communication skills increased dramatically. She began to read books, communicate by email, initiate conversations, make phone calls, she began to live a pretty normal life. And she did so well and she really seemed on the path to a career that in 2006, her mother sought a two year extension of the program. And she sought that as - as compensatory education as a remedy for the denial of an appropriate education that Alba had experienced from kindergarten through high school.. 

Judy Gran  10:27  
And the case went to a hearing the hearing officer and a review officer. In New York they have a two tier system similar to Pennsylvania's - but they ruled against Alba based on an agreement that her mother had signed. Earlier on, when the New York City Schools agreed to provide the services recommended by Dr. Blau at Queens College for an additional year, and the District had basically made Alba's mother sign away all rights to - to future services or to compensation. So the hearing officer denied relief based on that.

Judy Gran  11:13  
And then the review officer said, Well, he didn't know whether that was right. But it didn't matter because the statute of limitations under IDEA there's a two year limit on how far back you can go to to raise claims about having been denied an appropriate education. So at that point, Alba's parent appealed to federal court. And the District Court reversed everybody and said that the earlier agreement didn't bar compensatory education. And the statute of limitations didn't bar it either, and sent the case back to the administrative process.

Judy Gran  12:03  
And although the court didn't go into the merits of the case in the decision, it sent some very strong signals to the school district and suggested that the Department of Education had failed to use methods and technologies that were known and available before 2002, when Alba graduated from high school. To this, I think the suggestion was that the court wasn't saying that Alba had to use exactly the methods and devices and technologies that were recommended by Dr. Blau, the independent evaluator, but that it had to use something. And the court quoted Alba's special education teacher when she was in high school, who said basically, "I taught Alba what I was given to teach her. I did what was - what was available to me. I did what the school district does". 

Judy Gran  13:05  
And I think the failure of the district to search out a more appropriate approach to teaching Alba was really what swayed the district court and felt that this was just such an outrageous dereliction that something had to be done. And I won't go into all the legal ins and outs of why the court didn't find the earlier agreement signing away the rights was enforceable and why why the statute of limitations didn't bar those claims, but the court had had good legal reasons for for finding that and I'm sure we'll be hearing more about this case as it goes up to a higher court on appeal. This case was only decided last February.

Tracy Lapreziosa  13:58  
This concludes today's episode. of assistive technology and special education law. We hope this program has been helpful to you and welcome your comments. Please join us for other episodes in the series.

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