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Provision of FAPE under the IDEA May Not Satisfy ADA for Students with Communication Impairments


September 18, 2013

By Kendra Berner

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. 

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