Nov 12, 2014
Today, November 12, 2014, the Department of Justice (DOJ), and Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) with the Department of Education have issued a joint letter and FAQ to public school educators ( http://www2.ed.gov/about/offices/list/ocr/docs/dcl-faqs-effective-commun...) explaining that the:
"Three Federal laws – the Individuals with Disabilities Education Act (IDEA), Title II of the Americans with Disabilities Act of 1990 (Title II), and Section 504 of the Rehabilitation Act of 1973 (Section 504) – address the obligations of all public schools to meet the communication needs of students with disabilities, but do so in different ways. In particular, the IDEA requires that schools make available a free appropriate public education (FAPE), consisting of special education and related services, to all eligible children with disabilities (including those with disabilities that result in communication needs). Title II requires schools to ensure that students with disabilities receive communication that is as effective as communication with others through the provision of appropriate auxiliary aids and services."
The letter and FAQ goes on to say that public schools must consider the IDEA analysis and the Title II of the ADA effective communication analysis in determining how to meet the communication needs of an IDEA eligible student with a hearing, vision, or speech disability. Many times an IEP might meet the requirements of both the IDEA and ADA, but there are times when the effective communication requirements of the ADA may be different than the requirements of the IDEA. In those cases, the letter states:
"...in order to comply with Title II, a school may have to provide the student with auxiliary aids or services that are not required under the IDEA. In other instances, the communication services provided under the IDEA will meet the requirements of both laws for an individual student."
This letter is based on a 9th Circuit Court of Appeals decision, K.M. v. Tustin Unified School District, 725 F.3d 1088 (9th Cir. 2013), cert. denied, 134 S. Ct. 1493 (2014),(http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/07/11‐ 56259%20web%20revised.pdf).
Interestingly, the United States government filed an amicus (friend of the court) brief in this case when it was before the Ninth Circuit; that brief can be found at http://www.justice.gov/crt/about/app/briefs/kmtustinbr.pdf.
The bottom line is schools cannot assume that by providing a free appropriate public education through an IEP that they have also met the communication needs under the ADA of students with vision, hearing, or speech disabilities. The school may need to consider providing additional auxiliary aids and services in order to comply with Title II of the ADA.
