OSEP Policy Letter Re: Providing FM
1 ECLPR 216
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OSEP Policy Letter Re: Providing FM
1 ECLPR 216
Anonymous, Letter to (Assistive Technology)
Office of Special Education Programs
[Inquirer's Name Not Provided]
Digest of Inquiry
October 18, 1991
Digest of Response
April 6, 1992
Use of FM Training System Should Be Discussed During IEP Process
If a student with a hearing impairment has a current IEP, but the IEP
does not discuss the use of an FM auditory training system, then the
parent may request that an IEP meeting be reconvened to consider the use
of such a system. On the other hand, if the student does not have a
current IEP, the parent may request an evaluation and, if a disability
is identified, an IEP must be developed, at which time the use of an FM
system can be discussed. In either case, if the parent believes that the
student is entitled to, but is not receiving FAPE due to the denial of
an FM system, then a request can be made to the school district to
conduct an impartial due process hearing, or a complaint can be filed
with the state educational agency.
Text of Inquiry
I would like to request any information available on the criteria used
in schools to allow or deny the use of an (FM) Frequently Moderation
auditory training devices for hearing impaired students.
I am interested in my 6-yr-old son, who has bilaterally sloping hearing
loss to the profound level. He currently has bilateral hearing aids and
has been denied the use of an FM unit key by our local School system.
Any information would be greatly appreciated.
Text of Response
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
Director
Office of Special Education
Programs
07/25/06