DOJ/DOE Joint Publication: Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools
Implementation
12. How does a parent request auxiliary aids and services for a child under Title II? Can the request be made as part of the IEP process or must it be made through a separate process?
Answer. Title II does not designate a particular responsible person for a parent or student to contact about, or a specific process for individuals to follow, with regard to obtaining services under Title II. The school district can determine whom the parent should contact with requests for auxiliary aids and services and other ADA issues. Title II requires school districts to provide notice about Title II and its applicability to the school districts’ services, programs, or activities.42 The school district or public school should make sure that the identity and contact information of the designated school official is made publicly available in accessible formats.
A best practice is for a district to proactively notify parents and students about the right to effective communication under Title II and identify the designated school official who accepts requests for Title II auxiliary aids and services. In order to carry out a school district’s responsibility to ensure effective communication, district staff, such as teachers and administrative staff, who might reasonably be contacted by parents or students with requests for auxiliary aids or services, need to be knowledgeable about how to handle this type of request. For example, the district’s process might ensure that staff refers parents to the designated school official. As another example, the district’s process might call for the teacher or other staff member to communicate the parent’s request directly to the designated school official and to notify the parent that the request has been so communicated. In addition, a school district’s Section 504 or ADA Coordinator43 (discussed in further detail below) could be the designated school official or facilitate the process.
If a child has an IEP, neither the IDEA nor Title II require that the child’s IEP Team address a parent’s Title II request for his or her child; however, a school district may choose to delegate this responsibility to the child’s IEP Team. Please refer to Q&A 15 for additional information regarding the role of the IEP Team. As discussed below, a parent does not need to make a specific request under Title II before a school considers its responsibilities to provide auxiliary aids and services.
43 A school district that employs 15 or more persons must designate at least one person to coordinate its compliance with Section 504. 34 C.F.R. § 104.7(a). A school district that employs 50 or more persons must designate at least one employee to coordinate its compliance with Title II. 28 C.F.R. § 35.107(a). Nothing prohibits the ADA Coordinator from being the same person as the Section 504 Coordinator.
13. For children who are already receiving special education and related services under the IDEA, do parents have to make specific requests for different or additional auxiliary aids and services to trigger the Title II obligations for effective communication? Also, once the decision is made to provide a particular auxiliary aid or service to a student with a hearing, vision, or speech disability, does the school district have any obligation under either Title II or the IDEA to revisit that decision? If so, when?
Answer. Parents do not have to make a specific request for different or additional auxiliary aids. When the school district knows that a student needs assistance with communication because, for example, he or she has a hearing, vision, or speech disability, the school district also has an affirmative obligation to provide effective communication under Title II, whether or not a parent requests specific auxiliary aids and services under Title II. This obligation is in addition to the requirement that the school district make FAPE available if the student is eligible under the IDEA.
As a best practice, schools should consult with the parent or guardian (and students, as appropriate) at the first opportunity regarding what auxiliary aids or services are appropriate and update information about these preferences at least every year or whenever the parent or guardian requests a change. Nothing prevents the parent, guardian, or student from specifically requesting a particular auxiliary aid or service if not so consulted.
Also, under the IDEA, each school district must ensure that the IEP Team reviews and, if appropriate, revises the child's IEP periodically, but not less than annually.44 In general, a reevaluation under the IDEA must occur at least once every three years.45 Under Title II, the public school has a continuing obligation to assess the auxiliary aids and services it is providing to students with hearing, vision, or speech disabilities to ensure that these students are receiving effective communication.
For information on what parents can do if they disagree with a school district’s decision on what Title II’s effective communication provisions require for their child, please refer to Q&A 18.
45 34 C.F.R. § 300.303(b).
14. Who in a school district participates in the determinations about the provision of auxiliary aids and services under Title II? Does the ultimate decision maker differ depending upon whether the student is covered by the IDEA, Title II, or both?
Answer. The Title II regulations do not designate a particular responsible person or group of people to make the determinations about the provision of auxiliary aids and services under Title II.
The Title II regulations do require that most school districts (those that employ 50 or more persons) select at least one employee to coordinate implementation and compliance with the district’s responsibilities under Title II.46 Such an employee is generally referred to as the ADA Coordinator. A school district may give the ADA Coordinator the responsibility of making decisions about the auxiliary aids and services required under Title II, and may choose to have the ADA Coordinator participate in Title II effective communication decisions and in IEP reviews. The Title II regulations also address who should make determinations concerning whether a particular auxiliary aid or service would create a fundamental alteration or undue burden. Please refer to Q&A 6 for additional information.
If a student is IDEA‐eligible, a school district can also decide that a parent’s request under Title II for a child will be addressed by the IEP team. See Q&A 15.
15. Under what circumstances may the IEP Team make decisions about the provision of auxiliary aids and services required under Title II?
Answer. Under the IDEA, the school must ensure that the child’s educational program, as part of FAPE, is based on the individual needs of the child and is reasonably calculated to enable the child to receive meaningful educational benefit. If a school district designates the IEP Team as having the responsibility of making decisions about the auxiliary aids and services required under Title II, then the IEP Team may make this decision.
However, the IEP Team needs to be aware that the decision regarding the auxiliary aids and services needed to ensure effective communication as required under Title II poses a different question than the FAPE determination under the IDEA and must be made using the Title II legal standards. For additional information on the Title II requirements, please refer to Q&A’s 1 through 9.
16. Is the IDEA evaluation process different than the analysis used when considering an individual’s request for a particular auxiliary aid or service under Title II?
Answer. Under the IDEA, each school district must conduct a full and individual initial evaluation before the initial provision of special education and related services to a child with a disability. The evaluation must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent that may assist in determining whether the child is a child with a disability and needs special education and related services. Evaluations also must be provided and administered in a student’s native language or other mode of communication.47
If a school district has already completed a child’s evaluation under the IDEA, it may rely on information obtained from that evaluation when determining the need for effective communication under Title II. However, the school district must analyze the child’s needs and how to meet those needs based on the Title II standard, and this includes giving primary consideration to a request for a specific auxiliary aid or service. A school district may not ignore information obtained through the IDEA evaluation procedures, but may implement its own procedures to determine whether a child needs a particular auxiliary aid or service to ensure effective communication under Title II. Similarly, as explained above in Q&A 5, a school district must provide the auxiliary aids or services in a timely manner and cannot wait for the IEP process to run its course before providing necessary auxiliary aids and services under Title II. The IDEA does not prohibit a school district from providing the needed auxiliary aids and services under Title II while the IDEA evaluation is pending.
In this situation, the school district must first address the child’s needs for auxiliary aids and services based on the Title II standard while proceeding with the IDEA evaluation process, meaning the school district must provide those aids and services that ensure communication with the child is as effective as communication with students without disabilities and give primary consideration to the parent’s or child’s request for specific auxiliary aids and services, if any. Once the IDEA evaluation is complete, the school district may need to reassess whether the child needs different auxiliary aids or services to ensure effective communication under Title II if the results of the IDEA evaluation provide additional information regarding the child’s needs or the effectiveness of the auxiliary aids and services being used.
17. May a school district determine that, under Title II, all children with a hearing, vision, or speech disability will receive the same auxiliary aid or service as others with that kind of disability?
Answer. No. As stated earlier, when a school district decides what auxiliary aids or services to provide, that decision is made on an individualized, case‐by‐case basis. Because students with disabilities experience varying levels and types of limitations from hearing, vision, or speech disabilities, and because school districts must give primary consideration to the requests of the individual, these determinations must be made on an individual basis. For examples of appropriate auxiliary aids and services in individual cases, see Q&A 4.
18. What dispute resolution mechanisms are available if a parent believes that a school district has improperly denied or limited his or her child’s access to a particular auxiliary aid or service under Title II or has not made FAPE available under the IDEA?
Answer. Under the IDEA, a parent challenging the provision of FAPE may request mediation, may file a complaint with the State educational agency, or may request an impartial administrative hearing by filing a due process complaint and participating in the prescribed resolution process.48 The administrative hearing procedures vary by state and may include one or two levels of administrative review. An administrative hearing decision may be appealed to a State or Federal court empowered to hear such cases. In general, IDEA’s administrative hearing procedures must be utilized before seeking relief in State or Federal court. More information about IDEA’s dispute resolution procedures is available at http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresolutio nqafinalmemo‐7‐23‐13.pdf.
Regardless of whether or not the student also is eligible under the IDEA, a parent of a student with a disability can file a Title II complaint regarding the denial or limitation of a particular auxiliary aid or service with the United States Department of Education’s Office for Civil Rights or with the United States Department of Justice’s Civil Rights Division,49 or file a Title II grievance with the school district if the school district has such a procedure.50
A parent may also choose to file a civil action alleging a violation of Title II in Federal court. However, parents and guardians should be aware that the IDEA requires that, before filing a Federal case under other laws, such as Title II of the ADA, seeking a remedy that is also available under the IDEA, the parent or guardian generally must exhaust the administrative hearing procedures of the IDEA, which means obtaining a final decision under the IDEA’s impartial due process hearing procedures.51
49 Information on how to file a complaint with ED’s Office for Civil Rights is on ED’s website at http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm. Information on how to file a complaint with DOJ’s Civil Rights Division is on DOJ’s website at http://www.justice.gov/crt/complaint/.
50 A school district that employs 50 or more persons must adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by Title II. 28 C.F.R. § 35.107(b). A school district that employs 15 or more persons must adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohibited by Section 504. 34 C.F.R. § 104.7(b).
51 20 U.S.C. § 1415(l). Several Federal courts have applied this provision to specific facts in determining whether administrative exhaustion under the IDEA is required prior to filing a Federal case seeking relief under other Federal laws, including Title II of the ADA. See, e.g., Honig v. Doe, 484 U.S. 305, 327 (1988); J.B. ex rel. Bailey v. Avilla R‐XIII Sch. Dist., 721 F.3d 588, 594 (8th Cir. 2013); Payne v. Peninsula Sch. Dist., 653 F.3d 863, 871‐878 (9th Cir. 2011) (en banc), cert. denied, 132 S. Ct. 1540 (2012), overruled on other grounds by Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014); McCormick v. Waukegan Sch. Dist., 374 F.3d 564 (10th Cir. 2004). Although other Federal circuits have issued decisions on IDEA exhaustion, for a discussion of the Federal government's view of exhaustion, generally, see United States' Brief as Amicus Curiae in Payne v. Peninsula Sch. District (9th Cir. 2011), available at http://www.justice.gov/crt/about/app/briefs/paynebr.pdf.
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