Yesterday, November 12, 2014, the U.S. Department of Education’s Office for Civil Rights (“OCR”) and Office of Special Education and Rehabilitative Services (“OSERS”), together with the U.S. Department of Justice’s Civil Rights Division (“DOJ”), issued a joint Dear Colleague Letter (“DCL”) and Frequently Asked Questions (“FAQ”) document regarding the responsibility of schools to ensure effective communication for students with hearing, vision or speech impairments.  In the DCL and FAQ, the agencies addressed the interplay between the requirements of the IDEA and Title II of the Americans with Disabilities Act (“ADA”) as they bear on the rights of students with hearing, vision, or speech impairments.  The agencies remind districts that they have an obligation to comply with the requirements of both laws, and that while in general compliance with one law will result in compliance with both, there are times when this will not be true.
 
Title II of the ADA requires districts to take appropriate steps to ensure that communication with students with disabilities is as effective as communication with students without disabilities.  To comply with Title II districts must provide appropriate auxiliary aids and services so students with disabilities have an equal opportunity to participate in and enjoy the benefits of the district’s services, programs and activities.  Title II also requires that districts give primary consideration to the auxiliary aid or service requested by the student with a disability when determining what is appropriate for that student.  In the FAQ, the agencies remarked that, while in some instances the provision of FAPE under the IDEA might also meet the district’s obligation to provide effective communication under Title II, there may be times when districts will need to go beyond what is required under the IDEA to meet their Title II obligations.
 
The FAQ outlines the factors applicable to the IDEA analysis and the Title II effective communication analysis.  The FAQ also has two appendices.  Appendix A contains hypothetical case studies that consider whether a student who is receiving special education and related services under the IDEA is entitled to different or additional auxiliary aids and services under Title II.  Appendix B provides additional clarification of IDEA terminology and requirements addressing the communication needs of IDEA-eligible students with disabilities.
 

A copy of the DCL and FAQ can be found in the Legal References-Guidance Documents-“Federal” section of this website. 

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