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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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