The Americans with Disabilities Act (ADA)
The ADA aims to eliminate discrimination and level the playing field for people with disabilities. Under Title II, it prohibits public entities, including government, public schools, recreational programs, and private schools that accept public funding, and private entities, under Title III, including other private schools and testing companies, from discriminating on the basis of disability in services, programs, and activities. The ADA provides a specific right to “effective communication” for individuals with communication-related disabilities.
Public Entities (Title II)
Statute – 42 U.S.C. §§ 12101-03, 12131-34: http://bit.ly/2vL8D5Z
Implementing Regulations – 28 C.F.R. Part 35: http://bit.ly/2tzvBAp
Ensure effective communication supports and services: 28 C.F.R. § 35.160 http://bit.ly/2uSO6jA
- “Shall … ensure that communications with [individuals] with disabilities are as effective as communications with others. … [and] shall furnish appropriate auxiliary aids and services where necessary to afford … an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.”
- “In determining what … auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities.”
Honor the individual’s choice: 28 C.F.R. Part 35, Appendix A: http://bit.ly/2eDURi0
- “The public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice. … [and] shall honor the choice unless it can demonstrate that another effective means of communication exists or [is not] required under § 35.164.”
Public entity’s obligations: 28 C.F.R. § 35.164: http://bit.ly/2uldT2i
- Public entity must provide the requested services unless it can prove in writing that the services would “fundamental[ly] alter … the nature of a service, program, or activity or [cause] undue financial and administrative burdens. … after considering all resources available for use in the funding and operation of the service, program, or activity.”
- Even then, the public entity still must “take any other action” to “ensure … to the maximum extent possible” the individual “receive[s] the benefits or services.”
Private Entities (Title III)
Statute – 42 U.S.C. §§ 12181-89: http://bit.ly/2umb5QT
Implementing Regulations – 28 C.F.R. Part 36: http://bit.ly/2uKGqzk
Which Entities: 42 U.S.C. § 12181 (called “public accommodations”): http://bit.ly/2uTgKB4
- Anything generally open to the public, like restaurants, movie theaters, stadiums, retail stores, banks, gas stations, pharmacies, doctors’ offices, museums, amusement parks, private schools, private camps, daycares, bowling alleys
Effective communication rights: 28 C.F.R. § 36.303(c)(1): http://bit.ly/2tPPC0O
- Private entity “shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities” and “should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the [private entity], provided that the method chosen results in effective communication.”
- Alternatives (28 C.F.R. § 36.303(h)): If a particular auxiliary aid or service “would result in a fundamental alteration in the nature of the goods, services, facilities, privileges, advantages or accommodations being offered or in an undue burden, i.e., significant difficulty or expense,” the private entity “shall provide an alternative … that would not result in an alteration or such burden but would nevertheless ensure that, to the maximum extent possible” the individual can “receive” the private entity’s “goods, services, facilities, privileges, advantages, or accommodations.”
The Individuals with Disabilities Education Act
Statute – 20 U.S.C. §§ 1400 et seq.: https://bit.ly/2usa4rA
Implementing Regulations – 34 C.F.R. Part 300: https://bit.ly/2nud2bL
- 20 U.S.C. § 1401(1): “The term “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 functional capabilities of a child with a disability.”
- 20 U.S.C. § 1401(2): “The term “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. Such term includes— … (C) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices; … (E) training or technical assistance for such child, or, where appropriate, the family of such child; and (F) training or technical assistance for professionals (including individuals providing education and rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of such child.”
- 20 U.S.C. § 1401(26)(A): “The term “related services” means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, …) as may be required to assist a child with a disability to benefit from special education”
- 20 U.S.C. § 1401(33): “The term “supplementary aids and services” means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with section 1412(a)(5) of this title.”
- 34 C.F.R. § 300.105: “Assistive Technology. (a) Each public agency must ensure that assistive technology devices or assistive technology services, or both … are made available to a child with a disability if required as a part of the child’s—(1) Special education …; (2) Related services …; or (3) Supplementary aids and services ….”
- 34 C.F.R. § 300.324(a)(2): “The IEP Team must … (iv) Consider the communication needs of the child, … ; and (v) Consider whether the child needs assistive technology devices and services.”
- 20 U.S.C. § 1412(a)(6)(B): “Testing and evaluation materials and procedures utilized for the purposes of evaluation and placement of children with disabilities … shall be provided and administered in the child’s … mode of communication, unless it clearly is not feasible to do so, and no single procedure shall be the sole criterion for determining an appropriate educational program for a child.”
- 20 U.S.C. § 1414(b)(3): “Each local educational agency shall ensure that—(A) assessments and other evaluation materials used to assess a child under this section—… (ii) are provided and administered in the … form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is not feasible to so provide or administer.”