Provision Of FAPE Under The IDEA May Not Satisfy ADA For Students With Communication Impairments

by Franczek Radelet P.C.
Contact

In combined cases K.M. v. Tustin Unified School District and D.H. v. Poway Unified School District, the Ninth Circuit determined that although the school districts provided the students with hearing impairments with a free and appropriate public education (FAPE) under the IDEA, the court could not automatically conclude that the districts had satisfied their obligations under Title II of the Americans with Disabilities Act (ADA). Guided by an amicus brief by the Department of Justice, the court found that the ADA regulations include requirements related to individuals with communications impairments that are different from the IDEA’s requirements.

K.M. and D.H. each had IEPs that provided various services and accommodations to address their communication needs related to their hearing impairments. Both students were making educational progress and receiving meaningful educational benefit. The parents of both students requested that their respective districts provide Communication Access Realtime Translation (CART), a service where a trained stenographer provides captioning that appears on the student’s computer in real-time. When the districts refused these requests, the parents filed due process complaints. Hearing officers in both cases found that the districts provided the students FAPE.

Both the IDEA and Section 504 of the Rehabilitation Act include a FAPE requirement for students with disabilities. The Section 504 regulations state that providing an appropriate IEP satisfies the Section 504 FAPE requirement. Additionally, Section 504 and Title II of the ADA use very similar language to prohibit disability discrimination. As such, providing FAPE under the IDEA is often assumed to satisfy a district’s responsibilities under Section 504 and the ADA. The statutes, however, have different requirements and defenses:

"Substantively, the IDEA sets only a floor of access to education for children with communications disabilities, but requires school districts to provide the individualized services necessary to get a child to that floor, regardless of the costs, administrative burdens, or program alterations required. Title II and its implementing regulations, taken together, require public entities to take steps towards making existing services not just accessible, but equally accessible to people with communication disabilities, but only insofar as doing so does not pose an undue burden or require a fundamental alteration of their programs."

The ADA requires that public entities must “furnish appropriate auxiliary aides and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of a service, program, or activity conducted by a public entity.” Additionally, the public entity must give primary consideration to the requests of the individual when determining what type of auxiliary aide or service is necessary. While the IDEA requires that the IEP team consider a student’s communication needs and whether assistive technology is needed, the ADA’s requirement to provide an equal opportunity to participate and strong preference for the student’s chosen aide or service go beyond the IDEA’s requirements (though unlike the IDEA, the ADA’s requirements are limited to those that will not cause an undue burden or fundamental alteration to the program).

The Ninth Circuit therefore concluded that although the district court had determined that both students were receiving FAPE under the IDEA, in order to decide the ADA claims, the district court also needed to determine whether the aides and services provided by the districts offered the students equal access to their classes as provided their nondisabled peers, while considering the students’ preferences for CART and whether CART would impose an undue burden on the districts or fundamentally alter their programs.

In some cases, the services and aides a district provides a student with a communication impairment through an IEP will also satisfy the ADA. But districts should carefully consider their obligations under both the IDEA and the ADA because in some cases the statutes may require different actions. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.