DOJ/DOE Joint Publication: Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools

Case Study #1: Auxiliary aids and services under Title II are different from special education and related services under the IDEA.

Tommy is a thirteen‐year‐old student with significant hearing loss. He has a cochlear implant, and also relies on lip‐reading and social cues to communicate with others. He has been evaluated under the IDEA and determined eligible for special education services.

When addressing the communication needs of a child who is deaf or hard of hearing, the IEP Team must consider the child's language and communication needs, opportunities for direct communication with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode. The IEP Team also must consider whether the child needs assistive technology devices and services. For the past three years, Tommy’s IEP Team, which includes Tommy’s parents, agreed that Tommy would use FM technology, which consists of a microphone held by the teacher and a receiver that transmits to Tommy’s implant. During this time period, Tommy has maintained above average grades, completed grade level work, and interacted appropriately with his peers. Recently, however, Tommy expressed concern that he cannot hear other classmates during class discussions and often must “fake it.” He also stated that the FM system transmitted static and background noises and interfered with his ability to focus. Based on these concerns Tommy’s mother requested that he receive communication access real‐time translation (CART) services, which is an immediate transcription of spoken words to verbatim text on a computer screen.

FAPE determination under the IDEA: After Tommy expressed his concerns about the FM system and requested CART services, Tommy’s IEP Team timely reconvened. Under the IDEA, the IEP Team must determine the special education and related services necessary to provide FAPE and ensure those services are reasonably calculated to enable Tommy to receive meaningful educational benefit. Included in this analysis is whether CART services are necessary for Tommy to receive FAPE. Based on Tommy’s above average grades, his grade‐ level work and teachers’ reports on Tommy’s interactions in class with his peers, the IEP Team determined that transcription services (e.g., CART) were not necessary for Tommy to receive FAPE. The IEP Team did, however, recommend that Tommy receive an updated FM system and preferential seating in classrooms, and that teachers repeat student’s comments, use closed‐ captioning videos, and provide Tommy with course notes.

Effective Communication determination under Title II: Because Tommy is a student with a hearing disability already identified under the IDEA, the school district also has an affirmative obligation under Title II to ensure that he receives effective communication. Under Title II, the school district must take appropriate steps to ensure that communication with Tommy is as effective as communication with students without disabilities. The school district also must provide appropriate auxiliary aids and services, where necessary, to afford Tommy an equal opportunity to participate in, and enjoy the benefits of, the school program. In determining what auxiliary aids and services are appropriate for Tommy, the school must give primary consideration to the requests made by Tommy and his parents.

Tommy’s school district has delegated the responsibility of determining the appropriate auxiliary aids and services needed to ensure effective communication to the ADA Coordinator. As soon as Tommy made his request, his teacher alerted the ADA coordinator about Tommy’s request for CART services. In this case, Tommy cannot hear many of the students in the classroom, and by not hearing a student’s question or comment, he does not always understand a teacher’s response. The ADA coordinator timely determined that because Tommy cannot fully hear or understand all that is said in the classroom, he is not receiving effective communication. The Coordinator gives primary consideration to Tommy’s request for CART services and agrees that CART services would provide Tommy with effective communication. Because the CART services would not result in a fundamental alteration or in undue financial and administrative burdens, Tommy will receive CART services as an auxiliary service under Title II and not as a related service under the IDEA.