Law, Culture, and Disability

It is through law that culture and society attempt to ensure rights and access to opportunity to every citizen. Civil rights laws in particular have been enacted to reduce and eliminate discrimination on the basis of race, color, religion, sex, national origin, etc. Just as the civil rights movements of the 1960's led to laws that prohibited discrimination in employment, housing, and public services, the civil rights laws for persons with disabilities have done the same. Discrimination based on race, ethnicity, and skin color is typically based on more overt ignorance, fear, repression, or misguided views of racial domination. Discrimination based on disability is perhaps more subtle. It is based on a misunderstanding or ignorance of the person's needs, perspectives, or abilities, especially when the person is viewed through the lens of "disability." Or it can be based on a misguided sense of obligation to protect those who "suffer" from disabilities

 

Three laws have special significance for technology and people with disabilities:

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1973: Rehabilitation Act / Section 507

The Rehabilitation Act (a.k.a., the Rehab Act), for the first time, prohibited discrimination against persons with disabilities by programs receiving federal funding for education and employment. Section 504 of the Rehab Act specifically extended civil rights to persons with disabilities, both children and adults in employment, education, and other settings. It made reference to "auxiliary aids" (later to become known as assistive technology ) that insures an equal opportunity - "level the playing field". Auxiliary aids, such as special desks, tables, or keyboards, were considered to be "reasonable accommodations". However the Rehab Act had no "teeth" - auxiliary aids could be excluded (not provided) by claiming of lack of funding to pay for them by the agency or organization. And so, not much progress ensued.

1988: Technology-Related Assistance Act

The Technology Related Assistance Act, a.k.a, the Tech Act, recognized the importance of technology in the lives of persons with disabilities and provided funding to states to develop comprehensive service delivery systems for supporting acquisition, evaluation, funding and training related to assistive technology. As already noted , the Tech Act defined assistive technology devices and services for the first time in federal law.

1990: Americans with Disabilities Act

As noted earlier, the Americans with Disabilities Act, commonly known as ADA, is the major civil rights act for people with disabilities that would end discrimination against people with disabilities in employment, services and public accommodations. Discrimination includes not making reasonable accommodations to the known limitations of the person. Prohibits all local, state, and federal agencies from denying persons with disabilities access to any programs and services, including public transportation. Physical access is described in the ADA standards for accessible design. For example, having no ramp or accessible doors in the building denies access to state motor vehicle registration services. Programmatic access includes any policies or procedures which discriminate against persons because of their disabilities. For example, a school district policy that states that no animals are permitted on school buses denies access to transportation services to students with visual impairments who have guide dogs.

 

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Law, Disability, and School

The needs and rights of students with disabilities and their fa milites are addressed under the Rehab Act and under the ADA. But prohibiting discrimination and denial of access (what not to do) does not provide clear guidelines to schools as to what to do. It takes specific laws that address educational policies, programs, procedures, services, etc. to fully inform schools as to the rights of students and the schools' responsibilities in assuring their rights.

  

1975: Education of All Handicapped Children Act

Education for All Handicapped Children (EAHC) was the first "special education" law and it ensured that all children with disabilities would receive a free appropriate public education (FAPE) in the least restrictive environment (LRE). Prior to this law, schools could exclude a student by claiming that they could not provide programs for students with the most significant disabilities. The EAHC Act mandated that all children ages 6-21 with disabilities could not be excluded from or denied access to a public education. In 1986, the Handicapped Children and Toddlers Act extended public school responsibility for the education to preschool children ages 3-5 years.

1990: Individuals with Disabilities Education Act

In 1990, the EAHC Act was reauthorized (a legislative process that occurs periodically with major laws), renaming it the Individuals with Disabilities Education Act (IDEA). IDEA included two signifiant items that affected technology, students with disabilities, and schools.

  • The IEP team should consider whether the student requires AT when developing any IEP.
  • The definitions of AT devices and AT services from the Tech Act were included in IDEA as part of educational, related or supplementary aids and services.

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AT Device:   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 functional capabilities of children with disabilities (P.L. 100-407, 29 U.S.C. 2201, §3(1))

 

AT Service: Any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device (P.L. 100-407, 29 U.S.C. 2201, §3(1))

1997: IDEA Amendments

In 1997, the IDEA was amended by Congress. Among the changes were two significant modifications affecting assistive technology:

  • It was now mandated that the IEP team must consider whether AT is required by the student when developing the IEP.
  • The law indicates that consideration of whether AT is required involves an AT evaluation.

It had become clear that the earlier use of should did not communicate well enough what the law required. "Should" seemed to have been interpreted as somehow being an option. As a result, the wording of the law was changed to shall. In legal language shall means must - there is no option.

IDEA 1990 did not specify what is meant to consider whether AT was required - it left open to interpretation what it meant for a group professionals and parents to consider whether AT was required. In many cases, consideration was a yes/no check box on the IEP used to document that AT was considered. To provide an explanation of how the determination was made, The 1997 IDEA amendments stated that consideration involved an AT evaluation

 

2004: Individuals with Disabilities Educational Improvement Act

In 2004, the IDEA was reauthorized and renamed the Individuals with Disabilities Educational Improvement Act (IDEIA). This version of IDEA aligned it with the No Child Left Behind (NCLB) Act of 2001, revised requirements for evaluating students with learning disabilities, and stressed measurable student progress in the general education curriculum. IDEIA had two significant changes affecting the use of assistive technology in the schools.

  • It was now mandated that the IEP team must consider whether AT is needed by the student when developing the IEP.

 

 

 

AT: Required v. Needed?

Require would seem to imply that AT is used only if the student cannot otherwise function. Only if the student is ineffective (cannot complete a task, cannot walk unassisted, cannot speak clearly enough to be understood) can AT be used. On the other hand, need seems to imply a less restrictive or strict criterion. If the student is effective but inefficient, need suggests that AT could be used, while require does not.

Example 1: A middle school student (grade 8) who can read textbooks at a 5th grade vocabulary level, but at a much slower rate, with average comprehension might not be provided with AT such as a text-to-speech device under the require criterion. The student can read but not at the level expected for an 8th grade student (text level, rate, and comprehension). Using the need criterion, the student would be provided with the AT because it is needed for the student to acquire and use the information from the 8th grade textbook at the expected level of comprehension (and perhaps even speed of information acquisition).

Example 2: A 4th grader can be pushed by another person to get from class to class or activity to activity, but not always within the typical amount of time.   A powered-wheelchair controlled by the student might not be required because the student can get from place to place (but only with assistance).   A powered wheelchair is needed for the student to "independently" get from place to place and within the time allowed.

It has been suggested that such a lower threshold may confuse educational teams acting under this new wording, but may ultimately increase the number of students using AT devices and services.

 

AT: Not surgically implanted?

Cochlear_implant.jpg IDEIA also addresses the problems of ever increasing development in medical technology. Medical technology is constantly decreasing in size and increasing in power. Such things as cochlear implants, insulin pumps, heart regulating devices, or other devices that assist in eating, breathing, etc. make it possible for children with serious physical, sensory, or health problems to attend school, participate in the classroom, and make educational progress. So, are these AT and does the school bear the cost of providing for surgical implantation and replacement? IDEIA now specifically excludes such surgically implanted devices from the definition of AT devices and from the definition of AT services. However, it does permit services related to checking hearing aids or the external components of surgically implanted devices to determine whether they are turned on and functioning or to provide for maintenance (changing a hearing aid battery).

 

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Technology in the Schools: Instructional v. Assistive Technology

We have already explored the overlap of information and communication technology (ICT) and instructional technology (IT). Much of the IT used in schools today is ICT that has come to school. What is the overlap and what is the difference between IT and AT?

IT supports teaching (planning, preparation, learning, management of data, etc.) whether used during initial teaching or remedial instruction (which is the purpose of special education
instruction). The technology is supplemental to instruction -- the students could learn without it, but IT increases teaching and learning productivity.

 

AT is compensatory. AT allows the student to do tasks which cannot be done at the expected level of performance without the AT. This the compensatory benefit of AT. And, in a school setting, a device or application can be both depending on who is using it and for what.

 

 

 

For example: The calculator. After students learn to do basic computation (addition, subtraction, multiplication, division) the focus of instruction is on solving applied problems using reasoning, strategies, formulas, etc. The calculator focuses all students on math reasoning instead of computation. The typical student is faster with the calculator (more efficient).  However, if the student can still do computation without it, the calculator is IT. For the student with learning or cognitive disabilities, as assistive technology, the calculator compensates for the student's inability to recall "math facts" while focusing on math reasoning (increased effectiveness)It is AT because the student with disabilities cannot do computation without the calculator.

And to be clear, students with disabilities also use IT.

The difference between IT and AT here is in the unique needs of the student, not in the type of disability they have. AT is uniquely matched to the needs of the student. IT is matched to the teaching and learning needs of the teacher and the many students in a classroom.

 

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