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Last Updated: 11/20/2017
 

 Ask the Attorney with John Brower, J.D.

 

Question:  My son is deaf and uses assistive technology to assist his hearing. If the device is broken while at school who is financially responsible to repair or replace it?

Answer:  As many issues in the law - the answer as to what law, if any, applies is not a straightforward answer. First, issues of harm to property are generally a matter of state and not federal law. Therefore, each state may handle the issue differently. Next, the answer may well depend on who provided the device, and if its use is included as part of the student's IEP.
In terms of the need for such a device, the regulations supporting IDEA state as follows:
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))

In terms of responsibility for loss, theft, damage or normal wear and tear the federal Office of Special Education Programs (OSEP) stated the following in its Letter to Culbreath that was written in response to a similar inquiry:

If the student's IEP team determines that the student needs to take a required assistive technology device home in order to receive an appropriate education, that device must be provided at no cost to the parents. This means that a district could not assess a charge on parents for normal use and wear and tear. State laws rather than Part B, however, generally would govern whether parents are liable for loss, theft, or damage due to negligence or misuse of publicly-owned equipment used at home in accordance with a student's IEP. Therefore, you should look to State law concerning the extent to which persons lawfully in possession of the property of another are financially responsible for its damage or loss.

It appears from this opinion that OSEP accepts the school holding the parent financially responsible for devices it supplied in cases of loss or theft and in cases where the equipment is damaged due to the parent's or child's negligence or abuse. However, the school cannot require parents to assume financial responsibility for normal use or wear and tear, as that would be a denial of a FAPE.

In my opinion a claim for replacement or repair would be even weaker if the parent provided the device, particularly if it is not included as part of the student's IEP. To avoid future problems the parent may want to discuss the need for the device with the IEP Team. On the other hand, if there is a claim that a school staff member damaged the device intentionally or negligently in my opinion if the school refused to address the claim, it could be addressed by personal insurance coverage or if needed, in small claims court. If court action is considered, be aware a state immunity statute may limit or ban such an action against a public employee unless the act rises to the level of gross negligence or considered an intentional act.

Hope this helps your understanding.

John F. Brower, JD
Education Law Center
www.michedlawcenter.com

 

Education Law Center, PLLC 810-227-9850 www.michedlawcenter.com 

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