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.
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