Effective Communication Under Title II of the Americans With Disabilities Act
April 30, 2015

By Mary S. Gerbig

The obligations of public school districts to meet the needs of students with disabilities is addressed in Title II of the Americans with Disabilities Act of 1990 (Title II) as well as Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Individuals with Disabilities Act (IDEA). The Office for Civil Rights (OCR) released guidance on how these regulations, and specifically Title II, impact the communication needs of students in public school districts (school or schools). In light of the growing obligations under the ADA and Title II, schools should review their practices related to Title II prior to the numerous spring annual IEP meetings.

Title II requires public schools to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others. Title II requires schools to provide appropriate auxiliary aids and services, including “real-time computer-aided transcription services,” when necessary, to provide individuals with disabilities an equal opportunity to participate in school programs and activities. Auxiliary aids and services make aurally or visually delivered information so students with hearing, vision or speech disabilities can receive information and convey that information to others as effectively as students without disabilities. Such aids include a wide range of devices, technologies and methods as well as the acquisition or modification of equipment or devices.

Under Title II of the ADA, schools must give “primary consideration” to the request of a student in determining what type of auxiliary aid and service is necessary for that particular student. Schools must provide opportunities for students with disabilities (or an appropriate family member) to request an aid or service that the student thinks is needed to provide him/her with effective communication. Only the person with the disability (or his/her appropriate family member) can provide the necessary relevant information about which aid or service will be the most effective.

Schools must honor a student’s requested aid or service choice unless the school can demonstrate that another equally effective means of communication is available, or that the use of the means chosen would result in a fundamental alteration, or is an undue burden to the public entity. In determining whether a particular aid or service would result in undue financial and administrative burdens, a Title II entity should take into consideration the cost of the particular aid or service in light of all resources available to fund the program, service or activity, and the effect on other expenses or operations. Schools are not required to provide aids or services greater than what is needed to ensure effective communication nor comply with requests about details of the aid or service that are not relevant to its effectiveness, such as particular brands or models.

The head of the school, or his/her designee, is the individual responsible for making this determination and can only make such a decision after he/she has considered all resources available for use by the school in the funding and operation of the service, program or activity. After the head of the school, or his/her designee, has determined that a requested auxiliary aid or service would cause such alteration or burden, his/her decision must be put in writing and detail the reasons for his/her conclusion.

Title II does not require parents or students to make specific requests for different or additional auxiliary aids in order to receive such services. When a school knows that a student needs assistance with communication, the school must provide effective communication under Title II, whether or not specific auxiliary aids and services under Title II are requested. The regulations also require that when a school is providing aids and services, such aids and services must be provided in “accessible formats” to ensure the communication is effective. This regulation provision requires that the auxiliary aid or service must:

  • Permit the person with the disability to access the information;
  • Be provided in a timely manner;
  • Be provided in a way that protects the privacy and independence of the student with the disability; and
  • Be provided in a manner that does not unnecessarily disclose the nature and extent of an individual’s disability.

Although an IEP under the IDEA will usually meet the requirements of Title II, and have the same appropriate auxiliary aids and services, the effective communication requirement under Title II differs from the requirements under the IDEA and Section 504. Because Title II does not require IDEA eligibility and is broader in scope than the IDEA and Section 504, both the IDEA analysis and the Title II effective communication analysis must be applied by schools in determining how to meet the communication needs of an IDEA-eligible student with a hearing, vision or speech disability.

It is important to also note that Title II obligations for effective communication are not limited to students. Schools are obligated to provide effective communication to all individuals who seek to participate in or benefit from a school’s services, programs, or activities (i.e., student registration, parent-teacher conferences, etc.), such as parents, guardians or members of the public. Schools are also prohibited from requiring an individual with a disability to bring another person to interpret for him/her.

Given the fact-specific and individualized analysis in this area, application of the guidance may raise questions and concerns. The attorneys at Davis & Kuelthau, s.c. are prepared to assist school district officials with the individualized analysis and decision making. If you have any questions, please contact your Davis & Kuelthau, s.c. attorney or the author, Mary S. Gerbig, at 920.431.2242 / mgerbig@dkattorneys.com.

Attorney Gerbig and Attorney Uhlenkamp will be presenting a seminar on this topic at the WCASS Spring Conference on May 7, 2015 in Wisconsin Dells, WI from 12:45 p.m. to 1:45 p.m. and again from 2:00 p.m. to 3:00 p.m.

 

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