Legal Update Memo No. 41-2019 - AB 605 – Special Education Student Access to AT Device (K-12) - School & College Legal Services of California

Download pdf: 41-2019 – AB 605 – Special Education Student Access to AT Device (CDC)

On September 5, 2019, the Governor approved Assembly Bill (“AB”) 605, which effective January 1, 2020, allows for a special education student, whose Individualized Education Program (“IEP”) provides the student with an Assistive Technology (“AT”) device for use outside of the school setting, to continue to be provided an AT device for use outside the school setting for up to two months even after the student leaves a Local Educational Agency (“LEA”) and enrolls in a new LEA.[1]

AT Generally

The Individuals with Disabilities Education Act (“IDEA”) mandates a special education student must be provided AT devices and/or services as special education, a related service, or as a supplementary aid and service if the student requires the AT device or service in order to receive a Free Appropriate Public Education (“FAPE”)[2]

AT Device & Service Defined

The definition for an AT device is quite broad:

…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. The term does not include a medical device that is surgically implanted, or the replacement of such device.[3]

The California Department of Education (“CDE”) has a detailed non-exhaustive list of AT devices available on its website: https://www.cde.ca.gov/sp/se/sr/atexmpl.asp.

AT service is defined under both federal and state law as:

(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.[4]

Right to Access AT Device Outside of School

The IDEA mandates that on:

…a case-by-case basis, the use of school-purchased assistive technology devices in 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.[5]

AB 605 clarifies the right for a student to access an AT device outside of school:

(b) (1) A local educational agency shall be responsible for providing an individual with exceptional needs who requires the use of an assistive technology device with continued access to that device, or to a comparable device when that individual, due to enrollment in another local educational agency, ceases to be enrolled in that local educational agency.

(2) The responsibility of the local educational agency under paragraph (1) shall be in force until alternative arrangements for providing the individual with exceptional needs with continuous access to the assistive technology device, or to a comparable device, can be made or until two months have elapsed from the date that the individual ceased to be enrolled in that local educational agency, whichever occurs first. (Emphasis added).[6]

LEAs Should Develop Written Agreements with Parents Regarding AT Devices

We advise that LEAs develop a written agreement requiring parents to acknowledge their responsibility to replace a lost and damaged (beyond normal “wear and tear”) AT device. We also advise the written agreement clarify the responsibility of the parents for a student leaving a LEA by notifying the sending LEA when the receiving LEA has provided the special education student with an AT device or two months has lapsed, whichever is shorter, along with instructions on returning the original AT device to the sending LEA.

Our office will be developing a model written agreement on this issue. Your Special Education Local Plan Area (“SELPA”) may already have developed an AT student use written agreement, but the document should be updated to reflect the new requirements of AB 605.

For your convenience, please see the following link to AB 605:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB605.

Please contact our office with questions regarding this Legal Update or any other matter.

Legal Update written by Carl D. Corbin, General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

[1] The definition of LEA includes a charter school pursuant to Education Code § 56040.3(c).

[2] 34 CFR § 300.105(a).

[3] 34 CFR § 300.5.

[4] 34 CFR § 300.6 and 5 CCR § 3051.19.

[5] 34 CFR § 300.105(b).

[6] Education Code § 56040.3(b).

Legal Update Memo No. 41-2019 – AB 605 – Special Education Student Access to AT Device (K-12)

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