District Wins: Brainfingers Not Required for Student with Severe Multiple Disabilities

What Happened

Student is a young man with severe multiple disabilities resulting from a near-drowning accident at age two, which left him with profound brain damage, spastic quadriplegia, a seizure disorder (approximately 20–30 seizures per day), cortical visual impairment, and cognitive functioning estimated at the level of a child under 18 months old. He is nonverbal, wheelchair-bound, and requires 24-hour nursing care. Since at least 2005, he had been attending a special day class at a Los Angeles County Office of Education facility (Lincoln) for limited hours per week, while also receiving home hospital instruction funded by the district.

Parent became interested in a technology called Brainfingers — a headband-based system that reads facial muscle movements, eye movements, and brainwave activity to allow hands-free computer access. Student's classroom teacher had been informally using Brainfingers with him during school, and Parent believed it was helping him communicate and access his curriculum. In April 2007, the district removed Brainfingers from Student's classroom without holding an IEP meeting or providing written notice to Parent. Parent filed for due process, arguing that: (1) the district was required to give written notice before removing Brainfingers; (2) the district should have held an IEP meeting and included Parent in the decision; and (3) the district had failed since fall 2005 to provide Student with any appropriate assistive technology or augmentative communication (AAC) device.

What the ALJ Found

The ALJ ruled in favor of the district on all three issues. The central finding was that Brainfingers was not required for Student to receive a free appropriate public education. Expert witnesses — including a pediatric neurologist and a certified AAC specialist who had worked with Student for six years — testified that Student's severe cognitive and visual impairments prevented him from meaningfully using Brainfingers to communicate or access his curriculum. The ALJ credited that testimony over the opinions of the inventor of Brainfingers and Student's classroom teacher, finding that the inventor lacked expertise in special education and had a financial interest in promoting his product, and that the teacher's claims about Student's abilities were not supported by contemporaneous documentation and were contradicted by multiple other witnesses.

Because Brainfingers was not necessary for FAPE, the district was not required to give written notice before removing it, and was not required to hold an IEP meeting. The ALJ also found that Parent had not been excluded from the decision-making process — her views had been documented in multiple assessment reports and IEP meetings, and the district's decision followed consideration of those views alongside professional evaluations. The ALJ further found that the district had continuously provided appropriate assistive technology since 2005, including switches, voice output devices, specialized communication software, and computers, and that Student had made progress on his IEP goals using those tools.

What Was Ordered

1. Student's requests for relief were denied in their entirety.
2. The district was not ordered to provide Brainfingers at school or at home.
3. The district was not ordered to reimburse Parent for the Brainfingers system she purchased.
4. No compensatory education was awarded.
5. The district prevailed on all issues heard and decided.

Why This Matters for Parents

1. Districts have discretion over which assistive technology tools to use, as long as they are providing FAPE. The law does not require a district to provide the specific device a parent prefers. What matters is whether the student is receiving educational benefit from the technology being used — not whether a different device might work better.

2. An AT device that is used informally in the classroom — but never formally written into the IEP — may not be protected. In this case, Brainfingers was used sporadically and was mentioned in only one goal in one IEP. Because it was not a formal part of Student's educational program, the district could remove it without triggering the procedural protections (written notice, IEP meeting) that apply to changes in placement or services.

3. Expert credentials matter in due process hearings. The ALJ gave significant weight to a neurologist who could explain how Student's specific brain injury affected his ability to use Brainfingers, and discounted the testimony of the device's inventor because he had no special education training and a financial stake in promoting the product. If you are relying on an expert's opinion, make sure that expert has relevant qualifications and no conflicts of interest.

4. If you want a specific technology to be protected, get it written into the IEP. Parent's strongest argument might have been stronger if Brainfingers had been formally included in Student's IEP as a required service. Once a service is in the IEP, the district cannot remove it without notice and a team meeting. Informal classroom use does not carry the same protections.