Is More Than FAPE Required? KingSpry

Is More Than FAPE Required? The Departments of Education and Justice Issue Guidance Suggesting Some Students May Need More

Photo of Timothy E. Gilsbach

Posted on January 2nd, 2015
by Timothy E. Gilsbach

The United States Departments of Education and Justice recently issued a letter and frequently asked questions document regarding effective communication services for students with hearing, vision or speech disabilities that school districts and other public educational entities should be aware of. Communication services are given special consideration.

While the document itself appears to rehash existing regulations, there are two points of which school entities should take note.

First, by issuing this document, it appears that the Departments of Education and Justice are taking more of an interest in this area and as a result, issues related to it may be subject to more scrutiny than in the past by these two Departments.

Second, both Departments have adopted as policy a decision of the Ninth Circuit Court of Appeals, which establishes the standard for the nation.  Specifically, as per the Ninth Circuit,  in addressing the communication needs of students with hearing, vision or speech disabilities, compliance with the IDEA and IEP process, even if found to be an offer of a FAPE, may not be enough to meet the requirements of Section 504 and/or the ADA.

This is a fairly significant shift from past case law and Section 504’s implementing regulations, which consistently found that compliance with the IDEA through the IEP process typically meets the legal requirements under Section 504 and the ADA.

As a result of these developments, school entities must carefully review the requirements under Section 504, the ADA and implicating regulations issued by both the Department of Education and the Department of Justice with respect to these students.

Some of the highlights that are detailed in the guidance provided by the Departments of Education and Justice include the following:

  • Communication with students with disabilities in these areas must be as effective as it is with students without disabilities.
  • Districts must give primary consideration to the auxiliary aids and services requested by the student or his/her family to determine what is appropriate for the student.
  • The district must honor the aid or service chosen by student or family or prove that the aid or service requested “would result in a fundamental alteration in the nature of the service, program or activity or in undue financial and administrative burden.”
  • In determining the aid or service to be provided, the district must consider the length and complexity of the communications involved.
  • The service or aid, including an interpreter, must be provided during both the school day and at all school-sponsored extra-curricular activities the student will need the service or aid in order to participate.
  • The district must review and revisit the aid or services provided on a regular basis.
  • The aids or services must allow the student to access the information needed and must be done in a timely manner.
  • Districts must provide a communication method that allows for privacy to the same extent that non-disabled students are provided privacy.
  • The obligations apply not just to students, but to all who may access the district’s programing and activities.


The Bottom Line

As a result, educational entities must review with their staff the provisions applicable to these students and ensure that they comply with the same.  Given the additional attention being paid to this issue, educational entities must ensure that they comply not only with the requirements of IDEA, but also the expanded obligations attendant to the primary given communication services.

If you have any questions, contact your legal counsel or one of the education law attorneys at KingSpry.


School Law Bullets are a publication of the KingSpry Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.