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

Interplay Between Title II and the IDEA

10. How do the IDEA FAPE and the Title II effective communication requirements differ with regard to the obligation to provide communication for students with disabilities attending public elementary and secondary schools?

Answer. The Title II regulations explicitly require that a district take appropriate steps to ensure that communications with persons with disabilities are “as effective as” communications with other persons. They further require that a district provide appropriate auxiliary aids and services where necessary to afford a person with a disability an “equal opportunity” to participate in and enjoy the benefits of the district’s services, programs, or activities. Under the IDEA, FAPE must be individually designed to provide meaningful educational benefit to the child.⁴⁰ The IDEA does not require that a district compare the effectiveness of communications with a student with a disability to the effectiveness of communications with students without disabilities, although there is nothing in the IDEA that precludes districts from doing so as part of FAPE.⁴¹

For a student with a disability who is covered under both laws ‐‐ such as all IDEA‐eligible students with hearing, vision, or speech disabilities ‐‐ the school district must ensure that both sets of legal obligations are met, and that none of the student’s rights under either law are diminished or ignored. For many students, the special education and related services that they receive under the IDEA will also ensure that communication with those students is as effective as communication with other persons. In other instances, the services, devices, technologies and methods for providing effective communication that are provided to a particular student as “auxiliary aids and services” under Title II may not necessarily be the same as those determined under the IDEA. Further, if the special education and related services provided under the IDEA are not sufficient to ensure that communication with the student is as effective as communication with other persons, the Title II obligations have not been met. Thus, depending on the circumstances, the services and aids that a student receives under the IDEA may be the same as or greater than the services and aids that would be provided under Title II; in other circumstances, a student may receive more services and aids under Title II than those provided under the IDEA.

A student with a disability does not, and cannot be asked to, give up his or her rights under Title II in exchange for, or because he or she already receives, special education and related services under the IDEA. That is, the provision of FAPE under the IDEA does not limit a student’s right to effective communication under Title II.

11. Must a student be eligible under the IDEA in order to be provided auxiliary aids and services needed to ensure effective communication under Title II? (In other words, must a student with a disability have an IEP to access effective auxiliary aids and services?)

Answer. No. Title II does not require IDEA eligibility. While many students who have communication needs based on a hearing, vision, or speech disability are eligible under the IDEA and have IEPs, these are not prerequisites for receiving auxiliary aids and services needed to ensure effective communication under Title II.