The U.S. Department of Justice (DOJ) together with the U.S. Department of Education’s Office for Civil Rights (OCR) and Office of Special Education and Rehabilitation Services (OSERS) recently issued joint guidance regarding the obligations of public schools to meet the communication needs of students with hearing, vision, or speech disabilities.  The focus of the guidance is these agencies’ interpretation that different standards exist under the Individuals with Disabilities Education Act (IDEA) and Title II of the Americans with Disabilities Act (ADA) for meeting the communication needs of students with disabilities and that compliance with the IDEA will not always result in compliance with the “effective communication” regulation of the ADA. This interpretation is in line with, and cites, a recent U.S. Court of Appeals decision from the Ninth Circuit (covering the western states), which the U.S. Supreme Court declined to review.  See K.M. v. Tustin Unified Sch. Dist., 725 F.3d 1088 (9th Cir. 2013), cert. denied, 134 S. Ct. 1493 (2014).

Public schools have obligations to qualifying students with disabilities under the IDEA, Section 504 of the Rehabilitation Act (Section 504) and the ADA.  The guidance focuses on the distinction between schools’ obligations under the IDEA and the ADA (rather than also analyzing requirements under Section 504) because many of the students affected by these provisions will be covered by the IDEA and compliance with the IDEA, including providing a free appropriate public education (FAPE), generally results in compliance with the related but distinct obligation to provide FAPE under Section 504.  Similarly, compliance with the ADA’s effective communication regulation generally will result in compliance with Section 504’s nondiscrimination requirements.

To meet the FAPE standard under the IDEA, a student’s planning and placement team (PPT) must develop an appropriate individualized education program (IEP) that is reasonably calculated to provide the student with educational benefit based on the student’s individual needs.  The IEP must contain special education and related services, including communication-related auxiliary aids and services, as needed, to meet this standard.

In contrast, the ADA regulations require school districts to take steps to ensure that communications with individuals with disabilities “are as effective as communications with others” and must provide “appropriate auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of” the school district.  28 C.F.R. § 35.160.  Moreover, districts must give “primary consideration” to auxiliary aids and services requested by the individual with a disability when determining what aids or services are necessary.  Id.  According to the guidance, “[t]he public school must honor the choice of the student with the disability (or appropriate family member) unless the public school can prove that an alternative auxiliary aid or service provides communication that is as effective as that provided to students without disabilities.”  School districts must provide such auxiliary aids and services unless the head of the school district (i.e., superintendent), or his or her designee, determines such aids or services would result in a fundamental alteration in the nature of the program or service or would result in undue administrative and financial burdens.  This exception represents a different standard than that of FAPE under either the IDEA or Section 504.  The federal agencies further opine in the guidance that “[c]ompliance with the effective communication requirement would, in most cases, not result in undue financial and administrative burdens.”

In addition, while Section 504 and the ADA are often interpreted in tandem in the context of students with disabilities, given that they share the same definition of an “individual with a disability” and, generally, the ADA must not be construed to apply a lesser standard than Section 504, the guidance does not expressly interpret the ADA’s effective communication requirements to incorporate the procedural requirements of Section 504.  Notably, unlike Section 504, the guidance states that the ADA regulations “do not designate a particular person or group of people to make the determinations about the provision of auxiliary aids and services under Title II.”  For students also covered under the IDEA, districts may, but need not, delegate that role to the PPT.  If the PPT is involved in determining auxiliary aids and services, it must be sure to understand that the analysis for determining appropriate auxiliary aids and services under the ADA’s effective communication regulation is different than determining FAPE.  The guidance also includes some procedural requirements, including an affirmative obligation for school districts to provide auxiliary aids and services to a student it knows has communication needs and a continuing obligation to assess those students’ communication needs.  In addition, while IDEA evaluation reports may be helpful in providing relevant information, the guidance makes clear that school districts may not wait for such evaluations (including, presumably, evaluations conducted at the direction of a 504 team) before providing auxiliary aids and services in compliance with the effective communication regulation.

In sum, the guidance emphasizes the federal agencies’ interpretation that the obligations of public schools to meet the communication needs of students with disabilities are different under the IDEA and the ADA and, if a student is eligible under both the IDEA and the ADA, school districts must comply with both the IDEA’s FAPE standard and the ADA’s effective communication regulation.  At times, the special education and related services contained in an IEP to provide FAPE may meet the effective communication requirements, but in some cases they may not.  As a result, school officials should familiarize themselves with the ADA’s effective communication regulation and their obligations to individuals with communication needs.

The guidance is in the form of an introductory Dear Colleague Letter and a more substantive Frequently Asked Questions document.