U.S. Department of Justice
Civil Rights Division

U.S. Department of Education
Office for Civil Rights
Office of Special Education and
Rehabilitative Services

November 12, 2014
Dear Colleague:
Students with disabilities, like all students, must be provided the opportunity to fully participate
in our public schools. A critical aspect of participation is communication with others. We have
enclosed a document, entitled “Frequently Asked Questions on Effective Communication for
Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary
Schools” (FAQs), which explains the responsibility of public schools to ensure that
communication with students with hearing, vision, or speech disabilities is as effective as
communication with all other students.
Three Federal laws – the Individuals with Disabilities Education Act (IDEA), Title II of the
Americans with Disabilities Act of 1990 (Title II), and Section 504 of the Rehabilitation Act of
1973 (Section 504) – address the obligations of all public schools to meet the communication
needs of students with disabilities, but do so in different ways. In particular, the IDEA requires
that schools make available a free appropriate public education (FAPE), consisting of special
education and related services, to all eligible children with disabilities (including those with
disabilities that result in communication needs). Title II requires schools to ensure that
students with disabilities receive communication that is as effective as communication with
others through the provision of appropriate auxiliary aids and services.1
Public schools must apply both the IDEA analysis and the Title II effective communication
analysis in determining how to meet the communication needs of an IDEA‐eligible student with
a hearing, vision, or speech disability. In many circumstances, an individualized education
program under the IDEA will also meet the requirements of Title II. However, as a recent
Federal court decision highlighted, the Title II effective communication requirement differs

1

Because compliance with the IDEA can satisfy Section 504’s requirement to provide FAPE to a student with a
disability for the vast majority of students covered by the FAQs, and because, in general, a violation of Section 504
is a violation of Title II, the focus of the FAQs is on the IDEA and the specific Title II regulatory requirements for
effective communication.

Page 2 – Dear Colleague Letter: Effective Communication
from the requirements in the IDEA.2 In some instances, in order to comply with Title II, a school
may have to provide the student with auxiliary aids or services that are not required under the
IDEA. In other instances, the communication services provided under the IDEA will meet the
requirements of both laws for an individual student.
The FAQs address the interplay of these IDEA and Title II requirements. Our hope is that the
FAQs are helpful to schools, parents, and others in explaining students’ rights and schools’
obligations to address the communication needs of students with hearing, vision, or speech
disabilities.
Thank you for your continued efforts to ensure that all students, including students with
disabilities, have access to equal opportunities at school.
Sincerely,
/s/

/s/

Vanita Gupta
Michael K. Yudin
Acting Assistant Attorney General Acting Assistant Secretary
Civil Rights Division
Office of Special Education and
U.S. Department of Justice
Rehabilitative Services
U.S. Department of Education

/s/
Catherine E. Lhamon
Assistant Secretary
Office for Civil Rights
U.S. Department
of Education

Attachment as stated

2

The United States Court of Appeals for the Ninth Circuit addressed the IDEA and Title II effective communication
obligations in K.M. v. Tustin Unified School District, 725 F.3d 1088 (9th Cir. 2013), cert. denied, 134 S. Ct. 1493
(2014), available at http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/07/11‐
56259%20web%20revised.pdf. The United States government filed an amicus (friend of the court) brief in this
case when it was before the Ninth Circuit; that brief can be found at
http://www.justice.gov/crt/about/app/briefs/kmtustinbr.pdf.


U.S. Department of Justice
Civil Rights Division

U.S. Department of Education
Office for Civil Rights
Office of Special Education and
Rehabilitative Services

Frequently Asked Questions on
Effective Communication for Students with Hearing, Vision, or Speech
Disabilities in Public Elementary and Secondary Schools
Introduction
Students with disabilities, like all students, must have the opportunity to fully participate in our
public schools. A critical aspect of participation is communication with others. Three Federal
laws – the Individuals with Disabilities Education Act (IDEA),1 Title II of the Americans with
Disabilities Act of 1990 (ADA) (Title II),2 and Section 504 of the Rehabilitation Act of 1973
(Section 504)3 – address the obligations of public schools, including charter schools, to meet the
communication needs of students with disabilities, but do so in different ways.4 Public schools
must comply with all three laws, and while compliance with one will often result in compliance
with all, sometimes it will not.
This document focuses on the different approaches used by the IDEA on the one hand, and Title
II on the other, to determine what a school must do for a student with a hearing, vision, or
1

20 U.S.C. §§ 1400‐1482. Throughout this guidance, references to the IDEA are to Part B of the IDEA. 20 U.S.C.
§§ 1400‐1419; 34 C.F.R. pt. 300. The term “hearing, vision, or speech disabilities” is used throughout this
document to reference disabilities for the purposes of Title II of the Americans with Disabilities Act of 1990 and
encompasses eligible disability categories in IDEA (e.g., deafness, hearing impairment, deaf‐blindness, visual
impairment including blindness, speech or language impairment). For additional clarification of IDEA terminology
and requirements related to addressing the communication needs of students with disabilities, see Appendix B
below. For general information regarding IDEA requirements, please refer to http://idea.ed.gov/.
2

42 U.S.C. §§ 12131‐12134; 28 C.F.R. pt. 35. For general information about the ADA, please see www.ada.gov.

3

29 U.S.C. § 794; 34 C.F.R. pt. 104. As noted below, this document focuses on the IDEA and the specific Title II
regulatory requirements for effective communication, rather than on Section 504. In general, a violation of
Section 504 is a violation of Title II. Additionally, the vast majority of students covered by this guidance will be
IDEA‐eligible, and for these students, the Section 504 analysis concerning a free appropriate public education will
align with the IDEA.
4

While this document does not specifically address children with disabilities in preschools, the Title II provisions
discussed in this document apply equally to children with disabilities attending public preschools. In addition, to
the extent consistent with State law or practice, or order of any court, respecting the provision of public education
to children of those ages, the IDEA requires school districts to make a free appropriate public education available
to eligible children aged three through five, inclusive. 20 U.S.C. § 1412(a)(1); 34 C.F.R. §§ 300.101‐300.102. See
also, 20 U.S.C. § 1419 (preschool grants).
Issued November 2014

Page 2 – Frequently Asked Questions: Effective Communication
speech disability.5 While the IDEA requires that schools make available a free appropriate
public education (FAPE), consisting of special education and related services, to all eligible
children with disabilities (including those with communication needs), the Title II regulations
have a specific effective communication requirement for individuals with disabilities.6 As a
recent Federal court decision highlighted, the Title II requirement for effective communication
differs from the IDEA requirements on this point.7
Public schools must apply both the IDEA analysis and the Title II effective communication
analysis in determining how to meet the communication needs of an IDEA‐eligible student with
a hearing, vision, or speech disability. In some instances, in order to comply with Title II, a
district may have to provide the student with services that are not required under the IDEA. In
other instances, the communication services provided under the IDEA may meet the
requirements of both laws for an individual student. Schools need to be knowledgeable about
requirements of both Federal laws in order to meet the communication needs of students with
disabilities.
After a brief overview, this document outlines the factors applicable to the IDEA analysis and
the Title II effective communication analysis in a series of questions and answers and provides
additional information in two appendices. Appendix A contains hypothetical case studies that
consider whether a student who is receiving special education and related services under the
IDEA also needs different or additional auxiliary aids and services in order to meet the effective
communication requirements of Title II. Appendix B provides additional clarification of IDEA
terminology and requirements addressing the communication needs of IDEA‐eligible students
with disabilities.
Title II and Section 504 also apply to individuals with disabilities who are not students, such as
family members and members of the public seeking information from, or access to, the
services, programs, and activities of the public school. These individuals also have a right to
effective communication. This document briefly addresses those obligations as well.

5

This includes a student with multiple disabilities who has a hearing, vision, or speech disability.

6

28 C.F.R. § 35.160.

7

The United States Court of Appeals for the Ninth Circuit addressed the IDEA and Title II effective communication
obligations in a case entitled K.M. v. Tustin Unified School District, 725 F.3d 1088 (9th Cir. 2013), cert. denied, 134
S. Ct. 1493 (2014), available at http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/07/11‐
56259%20web%20revised.pdf. The United States government filed an amicus (friend of the court) brief in this
case when it was before the Ninth Circuit; that brief can be found on the United States Department of Justice
website at http://www.justice.gov/crt/about/app/briefs/kmtustinbr.pdf.

Page 3 – Frequently Asked Questions: Effective Communication

Overview of Title II, Section 504, and the IDEA
Title II of the Americans with Disabilities Act (Title II)
Title II and Section 504 are similar, but not identical in their scope. They both use the same
definition of disability; they both protect students with disabilities regardless of their eligibility
for special education and related services under the IDEA; and they both apply to every public
elementary and secondary school in the country. Nonetheless, because the statutes vary in
certain respects, they are each addressed separately.
Title II prohibits disability discrimination against qualified individuals with disabilities by all state
and local governments, regardless of whether or not those entities receive Federal funds.8 Title
II applies to all programs, activities, and services of public school districts, including all public
schools within school districts. This includes all public charter schools and magnet schools.
Under the ADA (including Title II), a disability is (1) a physical or mental impairment that
substantially limits a major life activity; (2) a record of such an impairment; or (3) being
regarded as having such an impairment.9
Public school students with disabilities are covered by Title II regardless of their eligibility for
special education and related services under the IDEA. The United States Department of Justice
(DOJ) is responsible for implementing interpretive regulations for Title II, which are found in the
Code of Federal Regulations (C.F.R.) at 28 C.F.R. pt. 35. These regulations require, among other
things, that public schools provide students with disabilities an equal opportunity to participate
in all school activities and that public schools ensure, through the provision of auxiliary aids and
services, that communication with students with disabilities is as effective as communication
with students without disabilities.10 Both DOJ and the Office for Civil Rights (OCR) in the United

8

Under Title II, “qualified individual with a disability” means an individual with a disability who, with or without
reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements
for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C.
§ 12131(2); 28 C.F.R. § 35.104.
9

42 U.S.C. § 12102(1). The ADA Amendments Act of 2008 amended the definition of disability for Titles I, II, and III
of the ADA as well as Section 504. Pub. L. No. 110‐325, 122 Stat. 3553 (2008). For a discussion of the United States
Department of Justice’s (DOJ’s) interpretation of the changes to the definition, please see DOJ’s Notice of
Proposed Rulemaking to Implement ADA Amendments Act of 2008, 79 Fed. Reg. 4839 (January 30, 2014). See also
the Equal Employment Opportunity Commission’s final ADA title I rule incorporating the ADA Amendments Act of
2008, 76 Fed. Reg. 16977 (March 25, 2011), 29 C.F.R. pt. 1630.
10

28 C.F.R. §§ 35.130 and 35.160. While Title II’s nondiscrimination mandate goes beyond requiring effective
communication, this document only addresses the Title II effective communication requirements for public school
students.

Page 4 – Frequently Asked Questions: Effective Communication
States Department of Education (ED) have responsibility for enforcing Title II and its regulations
in public elementary and secondary education; this includes enforcing the Title II rights of IDEA‐
eligible students.
Section 504 of the Rehabilitation Act (Section 504)
Section 504 prohibits disability discrimination against qualified individuals with disabilities by
recipients of Federal financial assistance.11 Because all school districts receive funds from ED,
Section 504 applies to all the operations of all public school districts, including all public schools
within those school districts. All public charter schools and magnet schools are subject to
Section 504 regardless of whether they are, for example, a school within a school district that
receives ED funds or are recipients themselves. Under Section 504, as under Title II, a disability
is (1) a physical or mental impairment that substantially limits a major life activity; (2) a record
of such an impairment; or (3) being regarded as having such an impairment.12
Public school students with disabilities are covered by Section 504 regardless of their eligibility
for special education and related services under the IDEA. OCR is responsible for issuing
regulations implementing Section 504 for recipients of financial assistance from ED, which are
found at 34 C.F.R. pt. 104. These regulations require, among other things, that public school
students with disabilities have an equal opportunity to participate in school and that they
receive FAPE consisting of regular or special education and related aids and services designed
to meet their individual educational needs as adequately as the needs of nondisabled students
are met.13 OCR enforces Section 504 and its regulations in public elementary and secondary
schools; this includes enforcing the Section 504 rights of IDEA‐eligible students.
In the remainder of this document, Section 504 is not separately discussed. As a general rule,
violations of Section 504 also constitute violations of Title II; therefore, discussing the Section
11

Under Section 504, for purposes of preschool, elementary, secondary, or adult educational services, a student is
a qualified individual with a disability if he or she has a disability and is (i) of an age during which students without
disabilities are provided such services; (ii) of any age during which it is mandatory under state law to provide such
services to individuals with disabilities; or (iii) to whom a state is required to provide a free appropriate public
education under the IDEA. 34 C.F.R. § 104.3(l)(2).
12

29 U.S.C. § 705(9)(B), (20)(B). The ADA Amendments Act of 2008 amended the definition of disability that
applies to Section 504. For a discussion of OCR’s interpretation of the changes to the definition, please see the
January 19, 2012, Dear Colleague Letter and Frequently Asked Questions document (FAQ) entitled “Questions and
Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and
Secondary Schools,” issued by the United States Department of Education’s (ED’s) Office for Civil Rights, available
on ED’s website at http://www2.ed.gov/about/offices/list/ocr/letters/colleague‐201109.html (Dear Colleague
Letter) and http://www2.ed.gov/about/offices/list/ocr/docs/dcl‐504faq‐201109.html (FAQ).

13

34 C.F.R. pt. 104, Subparts A and D.

Page 5 – Frequently Asked Questions: Effective Communication
504 protections separately would not provide additional guidance to public schools, all of which
are subject to both laws. Moreover, in determining whether a recipient’s communication with
an individual with a disability complies with ED’s Section 504 general nondiscrimination
provisions, where applicable, OCR generally would not find a violation if a recipient complied
with the requirements embodied in Title II’s effective communication regulation.14
Similarly, the vast majority of students with hearing, vision, or speech disabilities are IDEA‐
eligible, and one way of meeting a school’s Section 504 FAPE requirements is to comply with
the IDEA FAPE requirements.15 To address the Section 504 FAPE requirements would therefore
not provide additional guidance to public schools in the most common situations.
Individuals with Disabilities Education Act (IDEA)
Part B of the IDEA provides Federal funds to State educational agencies and through them local
educational agencies (hereinafter school districts), for the purpose of assisting them in
providing FAPE to eligible children with disabilities through the provision of special education
and related services.16 States receiving IDEA funds must ensure that school districts locate,
identify, and evaluate children who are suspected of having disabilities and who need special
education and related services. Each eligible child must have a written individualized education
program (IEP), developed by an IEP Team, that, among other things, includes a statement of the
special education and related services that the school district will provide to the child.17 School
districts also must ensure that FAPE is provided in the least restrictive environment to all
eligible children with disabilities. These IDEA protections also apply to children with disabilities
who attend public charter or magnet schools.18 Among other things, the IEP must address the
communication needs of eligible children. The Office of Special Education Programs (OSEP) in
ED’s Office of Special Education and Rehabilitative Services (OSERS) administers the IDEA, and
OSEP’s implementing regulations for Part B are found at 34 C.F.R. pt. 300.

14

34 C.F.R. § 104.4. In situations where the Section 504 general nondiscrimination provisions apply, OCR generally
would look to the effective communication standards in the Department’s Section 504 regulation for Federally
conducted programs, 34 C.F.R. § 105.40. These standards are similar to those found in the Title II effective
communication regulation.
15

34 C.F.R. §§ 104.33(b)(2), 104.35(d), 104.36.

16

20 U.S.C. §§ 1400‐1419; 34 C.F.R. pt. 300. The IDEA includes 13 disability categories: autism, deaf‐blindness,
deafness, emotional disturbance, hearing impairment, intellectual disability, multiple disabilities, orthopedic
impairment, other health impairment, specific learning disability, speech or language impairment, traumatic brain
injury, and visual impairment including blindness. 34 C.F.R. § 300.8(c).
17

34 C.F.R. § 300.320.

18

34 C.F.R. § 300.209(a).

Page 6 – Frequently Asked Questions: Effective Communication
The IDEA does not restrict or limit the rights, procedures, and remedies available under the U.S.
Constitution, the ADA, Section 504, or other laws protecting the rights of elementary and
secondary students with disabilities, except that before filing a case in Federal or State court
seeking relief that is also available under the IDEA, the child’s parents must generally go
through (“exhaust”) the IDEA administrative hearing procedures.19

Questions and Answers
Title II of the Americans with Disabilities Act (Title II)
1. Under Title II, what must public school districts do to provide effective communication to
students with hearing, vision, or speech disabilities?
Answer. Title II and its implementing regulations require public school districts to ensure that
communication with students with hearing, vision, or speech disabilities is as effective as
communication with students without disabilities.
To do this, public schools must provide appropriate “auxiliary aids and services” where
necessary to provide effective communication;20 that is, schools must provide appropriate
auxiliary aids and services so that students with disabilities have an equal opportunity to
participate in, and enjoy the benefits of, the services, programs, and activities of the public
school district.
Title II requires covered entities, including public schools, to give “primary consideration” to the
auxiliary aid or service requested by the student with the disability when determining what is
appropriate for that student.21
If, after complying with the process described in Q&A 6, a public school district can prove that
providing a particular auxiliary aid or service would be a fundamental alteration in the nature of
a service, program, or activity, or be an undue financial and administrative burden, the school
does not need to provide that auxiliary aid or service. However, the school still has an
obligation to provide, to the maximum extent possible, an effective auxiliary aid or service.22
These concepts are discussed in greater detail below.
19

20 U.S.C. § 1415(l). For further discussion on the IDEA exhaustion requirement, please refer to Q&A 18.

20

28 C.F.R. § 35.160(b)(1).

21

28 C.F.R. § 35.160(b)(2).

22

28 C.F.R. § 35.164.

Page 7 – Frequently Asked Questions: Effective Communication
2. What are examples of auxiliary aids and services for students with hearing, vision, and speech
disabilities?
Answer. In general, auxiliary aids and services make aurally or visually delivered information
available to students with hearing, vision, or speech disabilities so that they can receive
information from, and convey information to, others as effectively as students without
disabilities.
Auxiliary aids and services include a wide range of services, devices, technologies, and methods
for providing effective communication, as well as the acquisition or modification of equipment
or devices.
The Title II regulation lists examples of some, but not all, of these kinds of auxiliary aids and
services.23 For a person who is deaf, deaf‐blind, or hard of hearing, some examples of auxiliary
aids and services are interpreters, note takers, exchange of written materials, real‐time
computer‐aided transcription services (e.g., CART), assistive listening systems, accessible
electronic and information technology, and open and closed captioning.
Interpreters must be qualified.24 This means that the interpreter must be able to interpret both
receptively (having the skill needed to understand what the person with a disability is saying)
and expressively (having the skill needed to convey information to the person with a disability).
For example, an interpreter must be able to sign to the person who is deaf what is being said by
the hearing person, and voice to the hearing person what is being signed by the person who is
deaf. This communication must be conveyed effectively, accurately, and impartially, using any
appropriate specialized vocabulary.25 Thus, a teacher or other staff member who signs “pretty
well” is not a qualified interpreter. Being able to sign “pretty well” does not mean that a
person can process spoken communication into proper signs; nor does it mean that he or she
has the proper skills to observe the person signing and change the signed or finger‐spelled
communication into spoken words.26

23

28 C.F.R. § 35.104.

24

Id.

25

U.S. Department of Justice, Technical Assistance on Effective Communication, at. http://www.ada.gov/effective‐
comm.htm.

26

U.S. Department of Justice, Title II Technical Assistance, II‐7.1200, at http://www.ada.gov/taman2.html#II‐
7.1200.

Page 8 – Frequently Asked Questions: Effective Communication
For a person who is blind, deaf‐blind, or has low vision, some examples of auxiliary aids and
services are qualified readers, taped texts, audio recordings, Braille materials and displays,
screen reader software, magnification software, optical readers, secondary auditory programs
(SAP); large print materials; and accessible electronic and information technology.
For a person with a speech disability, some examples of auxiliary aids or services are a word or
letter board, writing materials, spelling to communicate, a qualified sign language interpreter,
taped texts, a computer, a portable device that writes and/or produces speech, and
telecommunications services.
In general, the services, devices, technologies and methods for providing effective
communication that are “auxiliary aids and services” under Title II could also be provided under
the IDEA as part of FAPE.
3. What does it mean for a public school district to give “primary consideration” to the request
of the student with a disability when making the decision to provide a particular auxiliary aid
or service?
Answer. The Title II regulations require that when a public school is deciding what types of
auxiliary aids and services are necessary to ensure effective communication, it must give
“primary consideration” to the particular auxiliary aid or service requested by the person with
the disability.27
When determining what is appropriate for that student, the school must provide an
opportunity for the person with the disability (or an appropriate family member, such as a
parent or guardian) to request the aid or service the student with a disability thinks is needed
to provide effective communication. It is the person with the disability (or his or her
appropriate family member) who is most familiar with his or her disability and can provide
relevant information about which aids or services will be most effective.
For example, if a high school student was deaf at birth or lost his or her hearing before learning
language, that person may use American Sign Language (ASL) as his or her primary form of
communication and may be uncomfortable or not proficient with other forms of
communication. A high school student who lost his or her hearing later in life and who uses a
cochlear implant may not be as familiar with sign language and may feel most comfortable and
proficient with an oral interpreter or with the use of a computer or other technology. A young
student who is nonverbal and is fluent in ASL but cannot read yet may not be able to use a
27

28 C.F.R. § 35.160(b)(2).

Page 9 – Frequently Asked Questions: Effective Communication
computer with written text and may be most comfortable and proficient communicating with a
sign language interpreter.
The public school must honor the choice of the student with the disability (or appropriate
family member) unless the public school can prove that an alternative auxiliary aid or service
provides communication that is as effective as that provided to students without disabilities. If
the school district can show that the alternative auxiliary aid or service is as effective and
affords the person with a disability an equal opportunity to participate in and benefit from the
service, program, or activity, then the district may provide the alternative.
4. What factors should a public school district consider in determining what auxiliary aids or
services are necessary to afford qualified students with disabilities an equal opportunity to
participate in, and enjoy the benefits of, the public school’s services, programs, or activities?
Answer. The determination of what auxiliary aids or services will provide effective
communication must be made on a case‐by‐case basis, considering the communication used by
the student, the nature, length, and complexity of the communication involved, and the
context in which the communication is taking place. 28
When determining the appropriate method of communication, schools must make an
individualized determination and cannot assume, for example, that simply because a student is
deaf, the student is fluent in ASL.
In addition to giving primary consideration to the particular auxiliary aid or service requested by
the student with a disability, the public school should also consider, for example, the number of
people involved in the communication, the expected or actual length of time of the
interaction(s), and the content and context of the communication. For example, will the
communication with a deaf student be fairly simple so that handwritten or typed notes would
suffice; or is the information being exchanged important, somewhat complex, technical,
extensive, or emotionally charged, in which case, a qualified interpreter may be necessary.
The Title II regulations’ requirements apply to all of a student’s school‐related communications,
not just those with teachers or school personnel. Therefore, given the ongoing exchanges
students experience with teachers, students, coaches, and school officials, any student who
requires a sign language interpreter in order to receive effective communication in an academic

28

28 C.F.R. § 35.160(b)(2).

Page 10 – Frequently Asked Questions: Effective Communication
class would likely need interpreter services throughout the day and may also need them to
participate in school‐sponsored extracurricular activities.29
For a deaf or hard of hearing student, a sign language interpreter or CART may be appropriate
where student comments and discussions are part of the class experience for all students, i.e.,
to enable the student to understand comments and discussions from classmates that all
students are exposed to, in addition to what is being said by the teacher, and to enable the
student to express himself or herself in a manner that permits the teacher and classmates to
fully understand and respond to the student.
Likewise, a student with cerebral palsy who is nonverbal may need a computer that produces
text or speech in order to communicate with the teacher and his or her classmates.
For a blind student, that student’s textbooks and handouts must be accessible for that student,
and all written information used in the classroom should also be read aloud or presented in
other accessible formats.
In determining which auxiliary aid or service to provide, school districts should be mindful that
communications evolve depending on the circumstances. We strongly encourage schools to
reassess the effectiveness of communication regularly as a situation changes. For example,
what may begin as a simple request by a student to check out a book from the school library,
where an exchange of written notes would be sufficient, can evolve into a more complex
communication concerning assistance in completing a research paper, where an exchange of
written notes might not be sufficient to ensure effective communication. For more information
on school districts’ continuing obligation to assess the effectiveness of auxiliary aids and
services, see Q&A 13.

29

Under the IDEA, school districts must also take steps, including the provision of supplementary aids and services,
to provide nonacademic and extracurricular services and activities in the manner necessary to afford every child
with a disability an equal opportunity for participation in those services and activities. 34 C.F.R. § 300.107(a). A
student’s IEP must address the special education, related services, supplementary aids and services, program
modifications, and supports for school personnel to be provided to enable the student to, among other things,
participate in extracurricular and other nonacademic activities. 34 C.F.R. § 300.320(a)(4)(ii).

Page 11 – Frequently Asked Questions: Effective Communication
5. What does it mean for auxiliary aids and services to be provided in “accessible formats, in a
timely manner, and in such a way as to protect the privacy and independence” of a student
with a disability?
Answer. The Title II regulations require that when a public school is providing auxiliary aids and
services that are necessary to ensure effective communication, they must be provided in
“accessible formats, in a timely manner, and in such a way as to protect the privacy and
independence” of a student with a disability.30 This regulatory provision has several
requirements.


First, the auxiliary aid or service provided must permit the person with the disability to
access the information. For example, if a blind student is not able to read Braille, then
provision of written material in Braille would not be accessible for that student. If
homework assignments are available on‐line, then the on‐line program used by the school
must be accessible to students who are blind. Similarly, for a student with limited speech
who does not yet read, a computer that writes words would not be accessible for that
student. Instead, a device that uses pictures to communicate words, thoughts, and
questions may be appropriate.



Second, the auxiliary aid or service must be provided in a timely manner. That means that
once the student has indicated a need for an auxiliary aid or service or requested a
particular auxiliary aid or service, the public school district must provide it (or the
alternative, as discussed above) as soon as possible. If the student is waiting for the
auxiliary aid or service (as opposed to requesting and arranging for it in advance), DOJ and
ED strongly advise that the public school keep that student (and parent) informed of when
the auxiliary aid or service will be provided. This requirement is separate from the provision
of special education and related services under the IDEA. For example, where the student
or his or her parent(s) requests auxiliary aids and services for the student under Title II, the
appropriate aids and services must be provided as soon as possible, even if the IDEA’s
evaluation and IEP processes are still pending.



Third, the auxiliary aid or service must be provided in a way that protects the privacy and
independence of the student with the disability. For example, for someone who is deaf and
uses ASL, if other people in the environment understand ASL, then conversations that
involve sensitive information must be conducted privately. Additionally, auxiliary aids and
services must be provided in a manner that does not unnecessarily disclose the nature and
extent of an individual’s disability. For example, if a student who is hard of hearing needs

30

28 C.F.R. § 35.160(b)(2).

Page 12 – Frequently Asked Questions: Effective Communication
assistance with taking notes, a teacher should not call out for volunteers in the front of the
whole class. Auxiliary aids and services also must be provided in a way that protects the
independence of the student. For example, if a blind student requested an accessible
electronic book (e‐book) reader to complete in‐class reading, instead of using a reading
aide, the school district should provide the e‐book reader because it would allow the
student to go through the material independently, at his own pace, and with the ability to
revisit passages as needed.
6. What happens if the public school district thinks that providing a particular auxiliary aid or
service would result in a fundamental alteration in the nature of a service, program, or
activity, or an undue financial and administrative burden?
Answer. A school district must provide a particular auxiliary aid or service that is otherwise
required unless the district can prove that such an auxiliary aid or service would result in a
fundamental alteration in the nature of the service, program, or activity or in undue financial
and administrative burdens.
The head of the school district or his or her designee (i.e., another school official with authority
to make budgetary and spending decisions) must make the determination that a particular
auxiliary aid or service would result in a fundamental alteration in the nature of the service,
program, or activity or in undue financial and administrative burdens after considering all
resources available for use by the school district in the funding and operation of the service,
program, or activity.31 Such a determination must be accompanied by the decision maker’s
written statement of the reasons for concluding that a requested auxiliary aid or service would
cause such alteration or burdens.32 In those circumstances, the school district has the burden
of proving that providing the requested auxiliary aid or service would result in such alteration or
burdens.33 Compliance with the effective communication requirement would, in most cases,
not result in undue financial and administrative burdens.
While there is nothing in the ADA that would prevent the head of the school district from
delegating this authority to an appropriate member of the child’s IEP team, that designee must
have authority to make budgetary and spending decisions and must have the knowledge
necessary to consider all resources available to the school district for use in the funding and
operation of the service, program, or activity.

31

28 C.F.R. § 35.164.

32

Id.

33

Id.

Page 13 – Frequently Asked Questions: Effective Communication
In situations where the school district decides not to provide a particular aid or service and can
prove that doing so would result in a fundamental alteration or undue burdens, the district
must take other steps that would not result in such an alteration or such burdens but would
nevertheless ensure that, to the maximum extent possible, the individual with a hearing, vision,
or speech disability can participate in, and receive the benefits or services provided by, the
school district’s program or activity.34 Generally, this would involve the provision of an auxiliary
aid or service that would not result in a fundamental alteration or undue burden.
7. Under what circumstances is a public school required to provide auxiliary aids and services to
persons with a hearing, vision, or speech disability who are not students, such as parents,
other relatives, and members of the public, who seek to participate in or benefit from a
district’s services, programs, or activities?
Answer. Title II’s effective communication obligations are not limited just to students —
schools are obligated to provide effective communication to all individuals who seek to
participate in or benefit from a school district’s services, programs, or activities such as student
registration, parent‐teacher conferences, meetings, ceremonies, performances, open houses,
and field trips. All of the same Title II requirements and considerations discussed in the context
of students with hearing, vision, or speech disabilities apply to other individuals with disabilities
who are covered by this requirement.
8. May a public school require an individual with a hearing, vision, or speech disability to bring
another person to interpret or facilitate communication, or to rely on a person who
accompanies an individual with such a disability?
Answer. The Title II regulations expressly prohibit a public school from requiring an individual
with a disability to bring another person to interpret for him or her.35 Assuming the provision
of an interpreter or other auxiliary aid or service is required, a school is prohibited from relying
upon a person who accompanies a child or adult with a hearing, vision, or speech disability to
interpret or facilitate communication except in two distinct circumstances.36 First, in an
emergency involving an imminent threat to the safety or welfare of an individual or the public
where there is no interpreter available, the school may ask either a minor child or an adult to
interpret or facilitate communication.37 In no other circumstances may a school rely on a minor

34

Id.

35

28 C.F.R. § 35.160(c)(1).

36

28 C.F.R. § 35.160(c)(2).

37

28 C.F.R. §§ 35.160(c)(2)(i), (c)(3)

Page 14 – Frequently Asked Questions: Effective Communication
child to interpret or facilitate communication.38 Second, where the individual with the hearing,
vision, or speech disability specifically makes the request, an accompanying adult may interpret
or facilitate communication if the accompanying adult voluntarily agrees to provide the
assistance and the school’s reliance on the accompanying adult is appropriate under the
circumstances.39
9. Can public schools charge for the provision of auxiliary aids or services?
Answer. No. Public schools cannot charge for the auxiliary aids or services that they provide to
meet the effective communications provision in the Title II regulations. DOJ and ED strongly
advise school districts that they inform students with disabilities and their parents that the
district can and will provide auxiliary aids and services, and that there will be no cost for such
aids or services.
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

38

28 C.F.R. § 35.160(c)(3). A school is prohibited from relying on a minor child to interpret or facilitate
communication in situations in which an interpreter or similar auxiliary aid is required. It would not be a violation
of the prohibition applicable to the use of a minor child to interpret or facilitate communication if the situation
does not require that the school provide an interpreter or similar auxiliary aid or service. For example, it would not
be a violation if a child, accompanying her deaf parent, assisted her parent in requesting a copy of the school
newsletter.
39

28 C.F.R. § 35.160(c)(2)(ii). For more information on the use of companions as interpreters, see U.S. Department
of Justice, Technical Assistance on Effective Communication, at http://www.ada.gov/effective‐comm.htm.

40

Bd. of Educ. v. Rowley, 458 U.S. 176, 201 (1982); Deal v. Hamilton Cnty. Bd. of Educ., 392 F.3d 840, 862 (6th Cir.
2004), cert denied, 546 U.S. 936 (2005).

Page 15 – Frequently Asked Questions: Effective Communication
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.

41

Rowley, 458 U.S. at 198‐200.

Page 16 – Frequently Asked Questions: Effective Communication
Implementation
12. How does a parent request auxiliary aids and services for a child under Title II? Can the
request be made as part of the IEP process or must it be made through a separate process?
Answer. Title II does not designate a particular responsible person for a parent or student to
contact about, or a specific process for individuals to follow, with regard to obtaining services
under Title II. The school district can determine whom the parent should contact with requests
for auxiliary aids and services and other ADA issues. Title II requires school districts to provide
notice about Title II and its applicability to the school districts’ services, programs, or
activities.42 The school district or public school should make sure that the identity and contact
information of the designated school official is made publicly available in accessible formats.
A best practice is for a district to proactively notify parents and students about the right to
effective communication under Title II and identify the designated school official who accepts
requests for Title II auxiliary aids and services. In order to carry out a school district’s
responsibility to ensure effective communication, district staff, such as teachers and
administrative staff, who might reasonably be contacted by parents or students with requests
for auxiliary aids or services, need to be knowledgeable about how to handle this type of
request. For example, the district’s process might ensure that staff refers parents to the
designated school official. As another example, the district’s process might call for the teacher
or other staff member to communicate the parent’s request directly to the designated school
official and to notify the parent that the request has been so communicated. In addition, a
school district’s Section 504 or ADA Coordinator43 (discussed in further detail below) could be
the designated school official or facilitate the process.
If a child has an IEP, neither the IDEA nor Title II require that the child’s IEP Team address a
parent’s Title II request for his or her child; however, a school district may choose to delegate
this responsibility to the child’s IEP Team. Please refer to Q&A 15 for additional information
regarding the role of the IEP Team. As discussed below, a parent does not need to make a
specific request under Title II before a school considers its responsibilities to provide auxiliary
aids and services.

42
43

28 C.F.R. § 35.106.

A school district that employs 15 or more persons must designate at least one person to coordinate its
compliance with Section 504. 34 C.F.R. § 104.7(a). A school district that employs 50 or more persons must
designate at least one employee to coordinate its compliance with Title II. 28 C.F.R. § 35.107(a). Nothing prohibits
the ADA Coordinator from being the same person as the Section 504 Coordinator.

Page 17 – Frequently Asked Questions: Effective Communication
13. For children who are already receiving special education and related services under the IDEA,
do parents have to make specific requests for different or additional auxiliary aids and
services to trigger the Title II obligations for effective communication? Also, once the
decision is made to provide a particular auxiliary aid or service to a student with a hearing,
vision, or speech disability, does the school district have any obligation under either Title II or
the IDEA to revisit that decision? If so, when?
Answer. Parents do not have to make a specific request for different or additional auxiliary
aids. When the school district knows that a student needs assistance with communication
because, for example, he or she has a hearing, vision, or speech disability, the school district
also has an affirmative obligation to provide effective communication under Title II, whether or
not a parent requests specific auxiliary aids and services under Title II. This obligation is in
addition to the requirement that the school district make FAPE available if the student is
eligible under the IDEA.
As a best practice, schools should consult with the parent or guardian (and students, as
appropriate) at the first opportunity regarding what auxiliary aids or services are appropriate
and update information about these preferences at least every year or whenever the parent or
guardian requests a change. Nothing prevents the parent, guardian, or student from
specifically requesting a particular auxiliary aid or service if not so consulted.
Also, under the IDEA, each school district must ensure that the IEP Team reviews and, if
appropriate, revises the child's IEP periodically, but not less than annually.44 In general, a
reevaluation under the IDEA must occur at least once every three years.45 Under Title II, the
public school has a continuing obligation to assess the auxiliary aids and services it is providing
to students with hearing, vision, or speech disabilities to ensure that these students are
receiving effective communication.
For information on what parents can do if they disagree with a school district’s decision on
what Title II’s effective communication provisions require for their child, please refer to
Q&A 18.

44

34 C.F.R. § 300.324(b).

45

34 C.F.R. § 300.303(b).

Page 18 – Frequently Asked Questions: Effective Communication
14. Who in a school district participates in the determinations about the provision of auxiliary
aids and services under Title II? Does the ultimate decision maker differ depending upon
whether the student is covered by the IDEA, Title II, or both?
Answer. The Title II regulations do not designate a particular responsible person or group of
people to make the determinations about the provision of auxiliary aids and services under
Title II.
The Title II regulations do require that most school districts (those that employ 50 or more
persons) select at least one employee to coordinate implementation and compliance with the
district’s responsibilities under Title II.46 Such an employee is generally referred to as the ADA
Coordinator. A school district may give the ADA Coordinator the responsibility of making
decisions about the auxiliary aids and services required under Title II, and may choose to have
the ADA Coordinator participate in Title II effective communication decisions and in IEP reviews.
The Title II regulations also address who should make determinations concerning whether a
particular auxiliary aid or service would create a fundamental alteration or undue burden.
Please refer to Q&A 6 for additional information.
If a student is IDEA‐eligible, a school district can also decide that a parent’s request under Title
II for a child will be addressed by the IEP team. See Q&A 15.
15. Under what circumstances may the IEP Team make decisions about the provision of auxiliary
aids and services required under Title II?
Answer. Under the IDEA, the school must ensure that the child’s educational program, as part
of FAPE, is based on the individual needs of the child and is reasonably calculated to enable the
child to receive meaningful educational benefit. If a school district designates the IEP Team as
having the responsibility of making decisions about the auxiliary aids and services required
under Title II, then the IEP Team may make this decision.
However, the IEP Team needs to be aware that the decision regarding the auxiliary aids and
services needed to ensure effective communication as required under Title II poses a different
question than the FAPE determination under the IDEA and must be made using the Title II legal
standards. For additional information on the Title II requirements, please refer to Q&A’s 1
through 9.

46

28 C.F.R. § 35.107(a). Smaller school districts may have only a Section 504 Coordinator, 34 C.F.R. § 104.7(a), who
can serve the same functions.

Page 19 – Frequently Asked Questions: Effective Communication
16. Is the IDEA evaluation process different than the analysis used when considering an
individual’s request for a particular auxiliary aid or service under Title II?
Answer. Under the IDEA, each school district must conduct a full and individual initial
evaluation before the initial provision of special education and related services to a child with a
disability. The evaluation must use a variety of assessment tools and strategies to gather
relevant functional, developmental, and academic information about the child, including
information provided by the parent that may assist in determining whether the child is a child
with a disability and needs special education and related services. Evaluations also must be
provided and administered in a student’s native language or other mode of communication.47
If a school district has already completed a child’s evaluation under the IDEA, it may rely on
information obtained from that evaluation when determining the need for effective
communication under Title II. However, the school district must analyze the child’s needs and
how to meet those needs based on the Title II standard, and this includes giving primary
consideration to a request for a specific auxiliary aid or service. A school district may not ignore
information obtained through the IDEA evaluation procedures, but may implement its own
procedures to determine whether a child needs a particular auxiliary aid or service to ensure
effective communication under Title II. Similarly, as explained above in Q&A 5, a school district
must provide the auxiliary aids or services in a timely manner and cannot wait for the IEP
process to run its course before providing necessary auxiliary aids and services under Title II.
The IDEA does not prohibit a school district from providing the needed auxiliary aids and
services under Title II while the IDEA evaluation is pending.
In this situation, the school district must first address the child’s needs for auxiliary aids and
services based on the Title II standard while proceeding with the IDEA evaluation process,
meaning the school district must provide those aids and services that ensure communication
with the child is as effective as communication with students without disabilities and give
primary consideration to the parent’s or child’s request for specific auxiliary aids and services, if
any. Once the IDEA evaluation is complete, the school district may need to reassess whether
the child needs different auxiliary aids or services to ensure effective communication under
Title II if the results of the IDEA evaluation provide additional information regarding the child’s
needs or the effectiveness of the auxiliary aids and services being used.

47

34 C.F.R. §§ 300.301,300.304.

Page 20 – Frequently Asked Questions: Effective Communication
17. May a school district determine that, under Title II, all children with a hearing, vision, or
speech disability will receive the same auxiliary aid or service as others with that kind of
disability?
Answer. No. As stated earlier, when a school district decides what auxiliary aids or services to
provide, that decision is made on an individualized, case‐by‐case basis. Because students with
disabilities experience varying levels and types of limitations from hearing, vision, or speech
disabilities, and because school districts must give primary consideration to the requests of the
individual, these determinations must be made on an individual basis. For examples of
appropriate auxiliary aids and services in individual cases, see Q&A 4.
18. What dispute resolution mechanisms are available if a parent believes that a school district
has improperly denied or limited his or her child’s access to a particular auxiliary aid or
service under Title II or has not made FAPE available under the IDEA?
Answer. Under the IDEA, a parent challenging the provision of FAPE may request mediation,
may file a complaint with the State educational agency, or may request an impartial
administrative hearing by filing a due process complaint and participating in the prescribed
resolution process.48 The administrative hearing procedures vary by state and may include one
or two levels of administrative review. An administrative hearing decision may be appealed to
a State or Federal court empowered to hear such cases. In general, IDEA’s administrative
hearing procedures must be utilized before seeking relief in State or Federal court. More
information about IDEA’s dispute resolution procedures is available at
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresolutio
nqafinalmemo‐7‐23‐13.pdf.
Regardless of whether or not the student also is eligible under the IDEA, a parent of a student
with a disability can file a Title II complaint regarding the denial or limitation of a particular
auxiliary aid or service with the United States Department of Education’s Office for Civil Rights
or with the United States Department of Justice’s Civil Rights Division,49 or file a Title II
grievance with the school district if the school district has such a procedure.50

48

34 C.F.R. §§ 300.506, 300.507.

49

Information on how to file a complaint with ED’s Office for Civil Rights is on ED’s website at
http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm. Information on how to file a complaint with DOJ’s Civil
Rights Division is on DOJ’s website at http://www.justice.gov/crt/complaint/.
50

A school district that employs 50 or more persons must adopt and publish grievance procedures providing for
prompt and equitable resolution of complaints alleging any action that would be prohibited by Title II. 28 C.F.R.
§ 35.107(b). A school district that employs 15 or more persons must adopt grievance procedures that incorporate
(footnote continued on following page)

Page 21 – Frequently Asked Questions: Effective Communication
A parent may also choose to file a civil action alleging a violation of Title II in Federal court.
However, parents and guardians should be aware that the IDEA requires that, before filing a
Federal case under other laws, such as Title II of the ADA, seeking a remedy that is also
available under the IDEA, the parent or guardian generally must exhaust the administrative
hearing procedures of the IDEA, which means obtaining a final decision under the IDEA’s
impartial due process hearing procedures.51
Funding
19. Under what circumstances may a school district use IDEA funds to pay for auxiliary aids or
services for IDEA‐eligible students to ensure effective communication as required by Title II?
Answer. The IDEA provides that grant funds must be used only in accordance with the
applicable provisions of the IDEA and to pay the excess costs of providing special education and
related services to children with disabilities.52 Therefore, IDEA funds may be used only to pay
for auxiliary aids and services under Title II that also are required to be provided under the
IDEA, such as assistive technology or interpreter services that are included in the student’s IEP.
If a child receives auxiliary aids and services under Title II that are not included in the child’s IEP,
IDEA funds may not be used to pay for those services.

appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging
any action prohibited by Section 504. 34 C.F.R. § 104.7(b).
51

20 U.S.C. § 1415(l). Several Federal courts have applied this provision to specific facts in determining whether
administrative exhaustion under the IDEA is required prior to filing a Federal case seeking relief under other
Federal laws, including Title II of the ADA. See, e.g., Honig v. Doe, 484 U.S. 305, 327 (1988); J.B. ex rel. Bailey v.
Avilla R‐XIII Sch. Dist., 721 F.3d 588, 594 (8th Cir. 2013); Payne v. Peninsula Sch. Dist., 653 F.3d 863, 871‐878 (9th
Cir. 2011) (en banc), cert. denied, 132 S. Ct. 1540 (2012), overruled on other grounds by Albino v. Baca, 747 F.3d
1162, 1171 (9th Cir. 2014); McCormick v. Waukegan Sch. Dist., 374 F.3d 564 (10th Cir. 2004). Although other
Federal circuits have issued decisions on IDEA exhaustion, for a discussion of the Federal government's view of
exhaustion, generally, see United States' Brief as Amicus Curiae in Payne v. Peninsula Sch. District (9th Cir. 2011),
available at http://www.justice.gov/crt/about/app/briefs/paynebr.pdf.

52

34 C.F.R. § 300.202(a). In using IDEA funds for these purposes, an LEA must comply with the excess costs
requirement in 34 C.F.R. § 300.202(b). (For more information please refer to App. A. to 34 C.F.R. Part 300.)

Page 22 – Frequently Asked Questions: Effective Communication
Resources
20. Where can a school district or parent get more information about these issues?
Answer. For information about Section 504 or Title II, school districts and parents can contact
the OCR office for the state in which the school is located. Contact information for the OCR
office that serves each state is available at
http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm. Districts and parents can also call
OCR’s customer service line at 800‐421‐3481 (voice) or 800‐877‐8339 (TDD) to obtain this
contact information.
In addition, for information about Title II requirements for effective communication, school
districts and parents can call DOJ’s toll‐free ADA Information Line, 800‐514‐0301 (voice) or
800‐514‐0383 (TTY), or consult DOJ’s ADA website, http://www.ada.gov.
For information about the IDEA requirements for children with disabilities and communication
needs, school districts and parents can contact OSEP at (202) 245‐7459 or consult OSEP’s
website at http://www2.ed.gov/about/offices/list/osers/osep/index.html. In addition, a list of
OSEP’s State contacts can be found at
http://www2.ed.gov/policy/speced/guid/idea/monitor/state‐contact‐list.html.
Below are links to several relevant Federal documents.


U.S. Department of Justice. (2014). Technical Assistance Document on Effective
Communication. Retrieved October 1, 2014, from http://www.ada.gov/effective‐
comm.htm



U.S. Department of Education. (2013). Office of Special Education Programs Memorandum
13‐08‐‐July 23, 2013‐Dispute Resolution Procedures under Part B of the Individuals with
Disabilities Education Act. Retrieved October 1, 2014, from
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresol
utionqafinalmemo‐7‐23‐13.pdf



U.S. Department of Education. (2013). Dear Colleague Letter from the Assistant Secretary
for Special Education and Rehabilitative Services and the Director of Special Education
Programs‐June, 19, 2013‐Braille instruction. Retrieved October 1, 2014, from
http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/brailledcl‐6‐19‐13.pdf



U.S. Department of Justice. (2012). K.M. v. Tustin Unified School District, 725 F.3d 1088 (9th
Cir. 2013) amicus brief. Retrieved October 1, 2014, from
http://www.justice.gov/crt/about/app/briefs/kmtustinbr.pdf

Page 23 – Frequently Asked Questions: Effective Communication


U.S. Department of Education. (2011). Questions and Answers On Individualized Education
Programs (IEP's), Evaluations, and Reevaluations. Retrieved October 1, 2014, from
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C3%2C



U.S. Department of Education. (2011) Questions and Answers on Accessible Technologies.
Retrieved October 1, 2014, from http://www2.ed.gov/about/offices/list/ocr/docs/dcl‐
ebook‐faq‐201105.html



U.S. Department of Education and U.S. Department of Justice. (2010). Dear Colleague
Letter from the Assistant Secretary for Civil Rights, U.S. Department of Education, and the
Assistant Attorney General for Civil Rights, U.S. Department of Justice – Emerging
Technologies in Education‐June 29, 2010. Retrieved October 1, 2014, from
http://www2.ed.gov/about/offices/list/ocr/letters/colleague‐20100629.html

Page 24 – Frequently Asked Questions: Effective Communication
Appendix A
Case Studies Illustrating the Proper Application
of the IDEA Analysis and the Title II Effective Communication Analysis
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.

Page 25 – Frequently Asked Questions: Effective Communication
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.
Case Study #2: The appropriate auxiliary aids and services under Title II are the same as special
education and related services required under the IDEA.
Julie is a student with a visual impairment. She has been evaluated under the IDEA and
determined eligible for special education and related services. Through the second grade, as
part of her IEP and placement, Julie has been receiving Braille instruction, and the school
district provided materials in Braille. In the summer before third grade, Julie began using an
accessible e‐book reader. Her parents, therefore, have requested that prior to the new school
year Julie’s IEP be revised to include an accessible e‐book reader in addition to Braille
instruction.
FAPE determination under the IDEA: Prior to the new school year, Julie’s IEP Team convenes to
discuss her IEP for the upcoming school year. The IEP Team agrees that because Julie now uses
an accessible e‐book reader she should use the e‐book reader in addition to Braille materials.
All agree that these services are reasonably calculated to enable Julie to receive meaningful
educational benefit.

Page 26 – Frequently Asked Questions: Effective Communication
Effective communication determination under Title II: Because Julie is a student with a visual
impairment already identified under the IDEA, the school district also has an affirmative
obligation under Title II to ensure that she receives effective communication. In Julie’s school
district, the district delegated the responsibility of determining effective communication to the
public school district representative who participates in the school’s IEP Team meetings.
Shortly after becoming aware that Julie’s parents requested an accessible e‐book reader, the
IEP Team discusses whether any additional appropriate auxiliary aids and services are necessary
to provide Julie with effective communication under Title II. Julie’s parents make no specific
request for additional services beyond the accessible e‐book reader. After considering how to
ensure Julie receives communication that is as effective as communication with students
without disabilities, the team, including the school district representative delegated to make
effective communication decisions, determines that the use of an accessible e‐book reader in
addition to Braille materials will provide effective communication under Title II. As discussed
above, the use of the e‐book reader in addition to Braille materials also ensures the provision of
FAPE under the IDEA. Julie, therefore, will not receive additional auxiliary aids and services
under Title II because the IEP meets both the IDEA and Title II standards to meet her
communication needs.

Page 27 – Frequently Asked Questions: Effective Communication
Appendix B
Individuals with Disabilities Education Act (IDEA) and Communication Needs
Under Part B, evaluations of all children suspected of having a disability are subject to the IDEA
evaluation and eligibility requirements.53 The purpose of the Part B evaluation is to determine
whether the child has a disability and the nature and extent of the special education and
related services that the child needs.54 The school district must provide the parents prior
written notice describing any evaluation procedures the agency proposes to conduct.55 In
conducting the evaluation, the school district must use a variety of assessment tools and
strategies to gather relevant functional, developmental, and academic information about the
child, including information provided by the parent that may assist in determining whether
the child is a child with a disability and the child’s educational needs.56 No single measure or
assessment may be used as the sole criterion for determining whether a child is a child with a
disability and an appropriate educational program for the child.57 Assessments or other
evaluation materials must be provided and administered in the child’s native language or
other mode of communication and in the form most likely to yield accurate information on
what the child knows and can do academically, developmentally, and functionally, unless it is
clearly not feasible to do so.58 For an individual with deafness or blindness, or for an
individual with no written language, the mode of communication is that normally used by the
individual (such as sign language, Braille, or oral communication).59
Once a child is determined eligible to receive special education and related services under the
IDEA, a school must provide a free appropriate public education (FAPE) to the child with a
disability through a properly developed individualized education program (IEP). An IEP is a
written statement for a child with a disability that is developed, reviewed, and revised in
accordance with Part B of the IDEA. Under the IDEA, the child’s IEP must be reasonably
calculated to enable the child to receive meaningful educational benefit.

53

34 C.F.R. §§ 300.304, 300.305, 300.306.

54

34 C.F.R. § 300.15.

55

34 C.F.R. § 300.304(a).

56

34 C.F.R. § 300.304(b)(1).

57

34 C.F.R. § 300.304(b)(2).

58

34 C.F.R. § 300.304(c)(1)(ii). For additional information regarding a school district’s responsibilities regarding
IDEA evaluation procedures, see “Questions and Answers on Individual Education Programs (IEPs), Evaluations and
Reevaluations, September 2011.”
http://idea.ed.gov/explore/view/p/%2Croot%2Cdynamic%2CQaCorner%2C3%2C.
59

34 C.F.R. § 300.29(b).

Page 28 – Frequently Asked Questions: Effective Communication
A child’s IEP must include a statement of the child’s present levels of academic achievement
and functional performance, including how the child’s disability affects the child’s involvement
and progress in the general education curriculum. The IEP also must include:




a statement of measurable annual goals;
a description of how the child’s progress toward meeting the annual goals will be
measured; and
a statement of the special education and related services and supplementary aids and
services provided to the child and a statement of the program modifications or supports
for school personnel that will enable the child to:
o advance toward attaining the annual goals,
o be involved in and make progress in the general education curriculum, and
o participate in extracurricular and other nonacademic activities.

An IEP Team is a group of individuals responsible for developing, reviewing, or revising an IEP
for a child with a disability. In general, the IEP Team must include the parent(s) and/or legal
guardian(s) of the child; not less than one regular education teacher of the child; not less than
one special education teacher or service provider of the child; a representative of the school
district; an individual who can interpret the instructional implications of evaluation results;
other individuals who have knowledge or special expertise regarding the child; and, whenever
appropriate, the child.
The IEP must address the communication needs of each child with a disability. For a child who
is deaf or hard of hearing, the IEP Team must consider: (1) the child's language and
communication needs; (2) opportunities for direct communication with peers and professional
personnel in the child's language and communication mode; (3) academic level; and (4) full
range of needs, including opportunities for direct instruction in the child's language and
communication mode.60 In the case of a child who is blind or has a visual impairment, the IDEA
requires that Braille instruction be provided unless the IEP Team determines, based on an
evaluation of the child’s current reading and writing skills and needs and appropriate writing
and reading media, that such instruction or use is not appropriate.61 For all children with

60

34 C.F.R. § 300.324(a)(2)(iv).

61

Because the evaluation also must assess a child’s future needs for instruction in Braille or the use of Braille, a
child’s current vision status should not necessarily determine whether it would be inappropriate for that child to
receive Braille instruction while in school. This is particularly true for a child with a degenerative vision condition
who may have a high degree of functional vision when the evaluation is conducted. The evaluation of such a child
would need to assess whether, despite the child’s current vision status, the child still could benefit from Braille
instruction while in school to increase the likelihood that the child will obtain productive employment and be able
(footnote continued on following page)

Page 29 – Frequently Asked Questions: Effective Communication
disabilities, including children with communication needs, the IEP Team also must consider
whether the child needs assistive technology devices and services as part of the determination
of special education, related services, and supplementary aids and services that are needed to
enable the child to receive meaningful educational benefit.
Special education means specially designed instruction, i.e., adapting, as appropriate to the
needs of an eligible child, the content, methodology, or delivery of instruction: (1) to address
the unique needs of the child that result from the child’s disability; and (2) to ensure access of
the child to the general curriculum. Special education may include instruction in the use and
mastery of sign language or Braille.
The term “related services” means such developmental, corrective, and other supportive
services as are required to assist a child with a disability to benefit from special education. They
include services such as speech‐language pathology and audiology services, oral transliteration
services, cued language transliteration services, sign language transliteration and interpreting
services [interpreters], and transcription services, such as communication access real‐time
translation (CART), C‐Print, and TypeWell for students who are deaf or hard of hearing, and
mobility and orientation training for students with low vision or blindness.
Supplementary aids and services are aids, services, and other supports that are provided in
regular education classes, other education‐related settings, and extracurricular and
nonacademic settings, to enable children with disabilities to be educated with nondisabled
children to the maximum extent appropriate.62 Such aids and services may include large print
materials or Braille materials.
Under the IDEA, an assistive technology device means any item, piece of equipment, or product
system, whether acquired commercially off the shelf, modified, or customized, that is used to
increase, maintain, or improve the functional capabilities of a child with a disability.63 For a
person with a speech‐related disability, a common example of an assistive technology device is
a communication board. For a person with a vision disability, examples of assistive technology
devices include refreshable Braille displays and accessible e‐book readers.
Likewise, an assistive technology service means any service that directly assists a child with a
disability in the selection, acquisition, or use of an assistive technology device. Assistive
to participate more fully in family and community life. See Office of Special Education Programs Dear Colleague
Letter on Braille, June 19, 2013 at http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/index.html.
62

34 C.F.R. § 300.42.

63

34 C.F.R. § 300.5.

Page 30 – Frequently Asked Questions: Effective Communication
technology services include the evaluation of the needs of a child with disability, including a
functional evaluation of the child in the child’s customary environment; purchasing, leasing, or
otherwise providing for the acquisition of assistive technology devices; and selecting, designing,
fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology
devices. Assistive technology services also include coordinating and using other therapies,
interventions, or services with assistive technology devices and training or technical assistance
for the child, the child’s family, and any professionals, employers, or other individuals who
provide services to or are otherwise involved in the major life functions of the child.64
If a child’s IEP Team determines related services or supplementary aids and services are
required as part of FAPE, the school district also must determine whether the child needs
assistive technology devices and services.
Public schools cannot charge students and parents for the special education, related services,
and supplementary aids and services, including assistive technology devices and services, that
are part of a student’s IEP and provided under the IDEA.

64

34 C.F.R. § 300.6.


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND
REHABILITATIVE SERVICES

November 3, 2014
Atlee Reilly
Staff Attorney
Disability Rights Center
24 Stone Street, Suite 204
Augusta, Maine 04330
Dear Mr. Reilly:
This is in response to your letter to me regarding a State educational agency’s (SEA) authority to
assign the burden of proof to complainants filing a State complaint under 34 CFR §§300.151300.153 of the Individuals with Disabilities Education Act (IDEA). Specifically, you ask
whether the assignment of burden of proof to the complainant in an IDEA complaint
investigation is consistent with the responsibilities of the SEA under 34 CFR §§300.151300.153.
The Part B State complaint procedures are a powerful tool used to address noncompliance with
Part B of the IDEA and its implementing regulations in a manner that both supports and protects
the interests of children with disabilities and their parents, and facilitates ongoing compliance by
the State and its public agencies with the IDEA and its implementing regulations. 71 Fed. Reg.
46540, 46601 (Aug. 14, 2006). After a State complaint is filed, it is the SEA’s responsibility to
review all relevant information and make an independent determination under 34 CFR
§300.152(a)(4) as to whether the public agency has violated the IDEA. Within 60 days of the
date that the complaint was filed, subject to allowable extensions, an SEA is required to issue a
written decision to the complainant that addresses each allegation in the complaint and contains:
(1) findings of fact and conclusions; and (2) the reasons for the SEA’s final decision. 34 CFR
§300.152(a)(5). In addition, under 34 CFR §300.152(b)(2), the SEA must have procedures for
effective implementation of its final decision, if needed, including technical assistance activities,
negotiations, and corrective actions to achieve compliance. Question B-30 in Questions and
Answers on IDEA Part B Dispute Resolution Procedures, revised July 2013. This document is
available at: http://idea.ed.gov/explore/home .
The State complaint process is intended to be less adversarial than the more formal filing of a
due process complaint and possible due process hearing. The State complaint procedures in 34
CFR §§300.151-300.153 do not provide the parties with the extensive procedural rights provided
to parties in a due process hearing. For example, the State complaint process does not require
parties to provide evidence, nor do they require that a State allow parties to review the
submissions of the other party or to cross-examine witnesses. 71 Fed. Reg. 46540, 46605 (Aug.
14, 2006).

Page 2 – Mr. Atlee Reilly
In Schaffer v. Weast, 564 U.S. 49 (2005), the Supreme Court held that the party seeking relief in
an impartial due process hearing under IDEA section 1415(f)-(j) and 34 CFR §§300.511-300.518
has the burden of proof. However, in the Department’s view, that case is not applicable to State
complaints because both the legal authority and the purpose for State complaints is separate and
broader than for due process hearings. The legal authority for requiring State complaints is 20
U.S.C. § 1221e-3, which is the Secretary’s general authority to implement Department programs.
Like due process hearings, State complaints can address disputes between parents and school
districts regarding the provision of FAPE. Unlike due process hearings, State complaints are
investigative in nature, rather than adversarial, and do not include the same procedural rights
accorded to parties in an impartial due process hearing. Therefore, the Department believes that
it is not consistent with the IDEA regulation for an SEA to treat a State complaint like a due
process complaint and assign the burden of proof to either party. Under 34 CFR §300.152, once
a State complaint is properly filed, it is solely the SEA’s duty to investigate the complaint, gather
evidence, and make a determination as to whether a public agency violated the IDEA. It is not
the burden of the complainant – or any other party – to produce sufficient evidence to persuade
the SEA to make a determination one way or another. Rather, the SEA must independently
review and weigh the evidence, generally by reviewing student and school records, data and
other relevant information, and come to a determination supported by relevant facts. It would
not be inconsistent with the IDEA, however, for a State to use a “preponderance of the evidence”
standard in making independent determinations as to whether a public agency violated a
requirement of Part B of the IDEA, pursuant to 34 CFR §300.152(a)(4), as this is the generally
recognized standard for civil matters.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U.S.
Department of Education of the IDEA in the context of the specific facts presented.
If you have questions, please do not hesitate to contact Jennifer Wolfsheimer at 202-245-6090 or
by email at Jennifer.Wolfsheimer@ed.gov.
Sincerely,

Melody Musgrove, Ed.D.
Director
Office of Special Education Programs


UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

September 29, 2014
Sam Sutton
President
Teach NYS
150 Broadway, Suite 901
New York, NY 10038
David Rubel
Consultant
Teach NYS and Sephardic Community Federation
215 17th Street
Brooklyn, NY 11215
Dear Mr. Sutton and Mr. Rubel,
Thank you for contacting the Office of Non-Public Education (ONPE) in the U.S. Department of
Education (Department) asking whether special education and related services for children with
disabilities enrolled by their parents in private schools could be delivered using inclusion models
that you describe in your letter. ONPE has referred your inquiry to the Office of Special
Education Programs (OSEP), the office in the Department responsible for administering the
Individuals with Disabilities Education Act (IDEA), for a response.
OSEP recognizes and supports the importance of inclusive educational practices, as you do.
Indeed, research has demonstrated that students with disabilities do better when they are given
the opportunity to be educated and interact in extracurricular and nonacademic settings with their
nondisabled peers. Therefore, as a general matter, we believe that in meeting IDEA’s equitable
services requirements, it is important for local educational agencies (LEAs) where private,
including religious, elementary and secondary schools are located, to ensure that services
provided to parentally-placed private school children with disabilities include opportunities for
their meaningful participation in the general curriculum and promote student growth. That said,
we cannot endorse any particular instructional model, such as the collaborative teaching models
you outlined in your letter, because determinations regarding particular instructional models are
matters that rest with State and local officials. Further, with regard to equitable services, under
IDEA, the consultation process is the vehicle for determining the types and amounts of services,
including the manner in which those services are provided. This process and the other IDEA
requirements that govern the provision of equitable services to parentally-placed private school
children with disabilities are described below.
www.ed.gov
400 MARYLAND AVE., SW, WASHINGTON, DC 20202
The Department of Education’s mission is to promote student achievement and preparation for global competitiveness by
fostering educational excellence and ensuring equal access.

Page 2 – Mr. Sam Sutton and Mr. David Rubel
Assuming that a parentally-placed private school child is an eligible child with a disability, as
defined in 34 CFR §300.8, and that such child has been designated to receive services under the
equitable services provisions of the IDEA, a services plan must be developed for the child. The
services plan must include the specific special education and related services to be provided to
the child in light of the services that the LEA has determined, through the consultation process, it
will make available to its parentally-placed private school children with disabilities. Further, a
services plan, must, to the extent appropriate, reflect the IEP content requirements in 34 CFR
§300.320. Under 34 CFR §300.320(a)(4)-(5), the IEP must address the extent to which a child
with a disability will participate and be educated with children with and without disabilities in
the general education curriculum and in extracurricular and other nonacademic activities.
As you know, under 34 CFR §300.134, the LEA where the private school is located, or if
appropriate, the State educational agency (SEA), must consult with private school
representatives and representatives of parents of parentally-placed private school children with
disabilities during the design and development of special education and related services. The
consultation process is very important because discussions between public school and private
school representatives and parents must address, among other matters: how parentally-placed
private school children with disabilities identified through the child find process can
meaningfully participate in special education and related services; how, where, and by whom
special education and related services will be provided; and the types of services to be provided,
including direct services and alternate service delivery mechanisms. 34 CFR §300.134(d)(1).
The LEA where the private school is located must make the final decisions with respect to the
services provided to eligible parentally-placed private school children with disabilities. 34 CFR
§300.137(b)(2). In addition, the special education and related services provided must be secular,
neutral, and nonideological. 34 CFR §300.138(c)(2).
In addition, equitable services for parentally-placed private school children with disabilities may
be provided on the premises of private, including religious, schools, to the extent consistent with
law. 34 CFR §300.139(a). The Department generally believes that, unless there is a compelling
rationale for these services to be provided off-site, LEAs should provide services on-site, at the
child’s private school, so as not to unduly disrupt the child’s educational experience. See
Question F-1, Questions and Answers on Serving Children with Disabilities Placed By Their
Parents in Private Schools (April 2011).
It is our understanding that you would like to present the six collaborative teaching models
described in your letter to public school officials for possible use in connection with the
provision of equitable services to parentally-placed private school children with disabilities
under IDEA. You believe the first three models presented in your letter may be consistent with
the IDEA regulations, and the latter three were designed for children with disabilities, but also
may indirectly benefit the general needs of students enrolled in the private school. We assume
you are suggesting that you believe that these models would confer what we refer to as an
“incidental benefit” on the private school children not receiving equitable services under the
IDEA. See generally 34 CFR §300.208 (permissive use of IDEA funds). It is important to note
that in providing or arranging for the provision of equitable services, an LEA may not use IDEA
Part B funds to finance the existing level of instruction in a private school or to otherwise benefit
the private school. Rather, the LEA must use IDEA Part B funds to meet the special education
and related services needs of parentally-placed private school children with disabilities, and not
to meet the needs of the private school or the general needs of the students enrolled in the private
school. 34 CFR §300.141. Therefore, LEAs should use reasonable measures in assessing
whether Federal funds are being used to benefit private schools. See 64 Fed. Reg. 12406, 12605

Page 3 – Mr. Sam Sutton and Mr. David Rubel
(Mar. 12, 1999).1 The Department has previously advised that 34 CFR §300.141 would not
prohibit other children in the private school from deriving a benefit that is incidental to the
provision of the Federally-funded special education and related services to those parentallyplaced private school children with disabilities designated to receive services under IDEA. For
example, if consultation services are provided to a private school teacher as a means of providing
special education and related services to a particular parentally-placed private school student
with a disability and that teacher uses the acquired skills in providing education to other children,
whatever benefit those other children receive is incidental to the provision of special education
and related services and is not prohibited by 34 CFR §300.141. 64 Fed. Reg. 12605.
As noted previously, we cannot endorse any particular instructional model, and therefore express
no view as to whether any of the collaborative teaching models described in your letter could be
implemented in a manner that would confer only an incidental benefit on the other children in the
private school. Rather, we believe a careful analysis of the particular facts and circumstances
would need to be undertaken in making such a determination, and therefore suggest that you
explore this matter with State and local officials through the consultation process described
above.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as
informal guidance and is not legally binding, but represents an interpretation by the U.S.
Department of Education of the IDEA in the context of the specific facts presented.
We hope this information is helpful to you as you continue to work with the local public school
districts and the State of New York to support the effective implementation of equitable services
under IDEA for eligible children with disabilities enrolled by their parents in private schools.
Should you have additional questions or require further clarification, please contact Dwight
Thomas, Office of Special Education Programs at 202-245-6238,or Pamela Allen, Office of
Non-Public Education at 202-205-9012, directly.
Sincerely,
/s/ Melody Musgrove
Melody Musgrove, Ed.D.
Director
Office of Special Education Programs

1

This clarification was provided in a response to a public comment in the Analysis of Comments and Changes to the
Department’s March 12, 1999 final Part B regulations. See Assistance to States for the Education of Children with
Disabilities and the Early Intervention Program for Infants and Toddlers with Disabilities, Final Rule, 64 Fed. Reg.
12406, 12605 (Mar. 12, 1999).