I’m not a big fan of guidances for several reasons: I find that lawyers rely on them as a crutch unnecessarily in many cases; the guidances oftentimes push an agenda and are not based on case law or regulations; as guidances they are not regulations and so therefore are subject to being ignored by the courts; and are frequently unnecessary, though not always so. However, none of these statements apply to the recent joint guidance from the US Department of Justice and the US Department of Education on effective communication. I find that the guidance is extremely easy to read, is a fair interpretation of the law, extremely practical, and contains a lot of useful information. This particular blog entry will go over that guidance.

I have previously discussed the effective communication regulation, including here here and here.

The Guidance

1. The guidance does a nice job of explaining that k-12 school need to worry about three different laws: IDEA, ADA, and § 504 of the Rehabilitation Act, and notes that the requirements of each are not the same necessarily.

2. The guidance does say that as a general rule violations of § 504 the Rehabilitation Act also constitute violations of title II and therefore, it didn’t make any sense to discuss § 504 protection separately as it would not provide additional guidance to public schools, all of which are subject to both laws. That is absolutely true. However, it should be pointed out that a violation of the ADA is not necessarily a violation of § 504 the Rehabilitation Act because the causation standard is different between the two laws.

3. Title II of the ADA and its implementing regulations require that a public school ensure that communication with students with hearing, vision, or speech disability is as effective as communication with students without disabilities. That means schools must provide appropriate auxiliary aids and services (what is an auxiliary aid and service can be found at 42 U.S.C. § 12103(1) as well is in the implementing regulations), where necessary in order to provide effective communication.

4. The effective communication regulation requires that public schools give primary consideration to the auxiliary aid or service requested by the student with a disability when determining what is appropriate for that student because it is the person with a disability, or his or her appropriate family member, who is most familiar with his or her disability and can provide the best information about which aids or services are most effective. Further, the school has to honor the choice unless the school can prove that an alternative auxiliary aid or service provides communication that is as effective as that provided to students without disabilities.

5. If providing the particular auxiliary aid or service constitutes a fundamental alteration in the nature of the service, program, or activity or is an undue financial or administrative burden, the school did not have to provide that of auxiliary aid or service, but they still have to provide, to the maximum extent possible, an effective auxiliary aid or service.

6. Interpreters for the deaf must be qualified and any such communication must be conveyed effectively, accurately, and impartially, using any appropriate specialized vocabulary.

7. It is very interesting that when the guidance talks about how a person who is deaf or hard of hearing may or may not use ASL, that hearing aids aren’t even mentioned. Rather, cochlear implants are mentioned. Cochlear implants are not a substitute for hearing aids. They are used in different situations. Nevertheless, it shows just how prevalent cochlear implants have become.

8. Auxiliary aids or services have to be decided on a case-by-case basis. That is, don’t put people with the same kind of disability in the same box as they may go about their world completely differently.

9. The effective communication regulations of title II apply to all of a student’s school -related communications and not just to those of teachers or school personnel.

10. For a deaf or hard of hearing student, a sign language interpreter or computer-assisted real-time (CART) may be appropriate where student comments and discussions are part of the class experience for all students. This is going to come down to a matter of choice by the particular student. ASL interpreters and CART do different things. ASL is a language just like French is a language. CART, which I had the privilege of using at a recent American Bar Association convention, essentially acts as a real-time transcript of what is going on. If the class is one where people are constantly talking and oftentimes at once, CART could be extremely helpful in addition to or in lieu of an ASL interpreter. An ASL interpreter is simply not going to be able to keep up with the different conversations but CART can. Thus, in this situation, the school is going to have to assess with the particular student whether one or the other or both should be employed.

11. Any auxiliary aids and services necessary to ensure effective communication have to meet several requirements. They have to be provided in an accessible format, in a timely manner, and in such a way as to protect the privacy and independence of a student with a disability.

A. With respect to accessible format, just because a student is blind does not mean that they know how to read braille (you would be surprised how many blind students do not read braille). Therefore, supplying materials in braille would be no good for that student.

B. With respect to timely manner, once the student indicates the need for an auxiliary aid or service or requested a particular auxiliary aid or service, the public school must provide it as soon as possible.

C. The auxiliary aid or service has to be provided in a way that protects the privacy and independence of the student with a disability. The example used in the guidance is a bit unfortunate. The example used is someone who is deaf and uses ASL should have their conversation containing sensitive information conducted privately where other people in the environment understand ASL. Here is the problem with that. Of the kids who are deaf, it is frequently reported that 90% of them have hearing parents. Also, it is frequently reported that 90% of deaf parents have hearing kids. Thus, it is entirely possible that there may be a hearing person in the classroom that knows ASL and that fact may or may not be known to the school. The auxiliary aid or service must also be provided in a way that the tax the independence of the student. For example, an e-book might foster more independence than a reading aide.

12. Should a school district try to defend on the ground that the auxiliary aid or service is a fundamental alteration or constitute an undue financial or administrative burden after considering all resources available for use by the school district in the funding and operation of the service, program, or activity, the head of the school district or his or her designee must make that determination (you can find the certification requirement discussed here. With respect to whether the school district had could delegate the decision regarding the undue burden certification to a designee, that designee would have to be a person with the authority to make budgetary and spending decisions and must have the knowledge necessary to consider all resources available to the school district for use in the funding and operation of the service, program, or activity.

13. The effective communication obligations are not limited just to students. Rather, schools have the obligation to provide effective communication to all individuals seeking to participate in or benefit from the school district’s services, program, or activities.

14. Title II of the ADA regulations expressly prohibit a public school from requiring an individual with a disability to bring another person to interpret for him or her except in the case of an emergency involving an imminent threat to the safety or welfare of the individual or to the public where there is no interpreter available or where the person with a hearing, vision, or speak disability specifically make the request that an accompanying adult may interpret or facilitate communication providing the accompanying adult voluntarily agrees to provide the assistance and providing the school’s reliance on the accompanying adult is appropriate under the circumstances. Regarding the second exception, careful consideration to both elements is called for. The school wants to make sure that the consent of the adult it truly voluntary. Second, the school wants to make sure that relying on the accompanying adult is appropriate under the circumstances. It may not always be. For example, it would not be appropriate to rely on the adult if the situation was a due process hearing, § 504 planning meeting, meeting of the IEP team, etc. Some may be close calls. For example, certain information may be so critical so that it is essential that any errors be minimized, such as a medical emergency.

15. Unlike the Americans with Disabilities Act, IDEA does not require a district to ensure that the effectiveness of communication for student with a disability matches the effectiveness of communication for students without disabilities.

16. The provision of a free appropriate public education under IDEA does not limit a student’s right to effective communications under the ADA. Also, to be protected under title II and to utilize the effective communication regulations of that title, does not require eligibility under IDEA.

17. A best practice is for a district to proactively notify parents and students about the effective communication regulations under title II and let the students and parent know just whom that official is. As pointed out in the guidance, it makes sense that the responsibility could, though it doesn’t have to be, given to the § 504 or ADA coordinator.

18. Parents do not have to make a specific request for different or additional auxiliary aids. Rather, the school district has the affirmative obligation to provide effective communication regardless of whether the parent request specific auxiliary aids and services.

19. School districts have a continuing obligation to assess auxiliary aids and services that it is providing the students in need of those services in order to ensure that those students are receiving effective communication.

20. If a student is IDEA eligible, a school district can also decide that a parent’s request under title II will be addressed by the IEP team. However, while that may be the case, the IEP team would not be making the determination based upon whether the auxiliary aids and services were reasonably calculated to enable the child to receive meaningful educational benefit. Instead, they would have to make the decision based upon the effective communication regulations under title II, an entirely different question since it demands that communications be as effective as those for without disabilities. This means that the IEP team has to receive training on the effective communication regulations.

21. A school district cannot wait for the IEP process to run its course before providing necessary auxiliary aids and services.

22. Guidance points out that if a person has an IEP, they must exhaust that process first before proceeding to a lawsuit alleging violations of the ADA or § 504. You can find more of that discussion here.

23. IDEA funds may be used only for auxiliary aids and services under title II where those auxiliary aids and services are also required to be provided under IDEA. If auxiliary aids and services under title II are not included in the IEP, then IDEA funds may not be used to pay for those services. Here is my concern with that. Since money drives everything, the concern is that school districts will push students with disabilities into the IDEA system. That decision has significant legal and day-to-day implications and should not be done lightly.

In summary, for those familiar with the effective communication regulations, there isn’t anything that is surprising here. What it does do is reiterate that school systems need to be aware that their universe is more than just IDEA but also includes ADA and § 504. Whether the regulation create the incentive of pushing people into the special education system when that is not necessary is something that should be followed.