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|Volume 20, No. 1 - Winter 2012||
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Marissa L. Band
Staff Attorney, Disabilities Law Program
Community Legal Aid Society, Inc.
All students in publicly funded schools have a right to learn and to have access to instructional materials that will allow them to do so. Some students, however, may find it difficult or impossible to use “traditional” school materials, such as paper textbooks, because of their visual, print, or other disability that interferes with their ability to read standard text. These students may need what is called Accessible Instructional Materials, or “AIM”, which is a term for school materials that are in an alternative format, such as large print, Braille, audio, or electronic/digital text.
The good news is that there are several laws that protect students with disabilities who need AIM in order to benefit from their education. These laws include the Individuals with Disabilities Education Act “IDEA”, Section 504 of the Rehabilitation Act “Section 504”, and the Americans with Disabilities Act “ADA.” All students who meet the definition of an individual with a disability under Section 504 and the ADA are protected by those laws, including students in special education (students with Individual Education Programs under IDEA). Not all students with disabilities need “special education” (sometimes, students with disabilities simply need a minor change to the school program in order to benefit from their education, rather than requiring the specialized instruction provided under IDEA). Let us first begin with the IDEA and then we will broaden our discussion to Section 504 and the ADA.
IDEA requires that students who are blind or who have a print disability receive instructional materials in accessible formats and in a timely manner. The IDEA regulations clarify that students (even if they are not blind or have a print disabilityi, as discussed below) are entitled to instructional materials in other formats if they need them because of their disabilities. Under the IDEA, students must be provided with AIM if it is necessary to ensure that a student receives a free, appropriate, public education “FAPE.” In Delaware, for special education, FAPE has a definition that offers students more protection than the standard established by the federal rules. For Delaware students, briefly stated, FAPE is specially designed instruction and related services that are required to assist a student with a disability to benefit from the student’s education. In Delaware, FAPE means an education that provides significant learning to the child with a disability and confers meaningful benefit on the child with a disability, that is gauged to the child’s potential. In Delaware, schools must provide students with AIM at no cost if needed for FAPE; in other words, if the AIM is needed to provide significant learning, for the student to meaningfully benefit from their education, which is gauged to their potential, it must be made available to that student. Under the IDEA, AIM should also be provided to students with disabilities to enable them to be educated with peers without disabilities to the maximum extent appropriate. For example, if providing a student with AIM would allow them to continue to be educated in the general education classroom, rather than a separate classroom, then AIM must be provided. IDEA also requires that if equipment is necessary in order to utilize the AIM, the student must be provided with a device – at no cost – for the student to do so; school districts may need to provide training and technical assistance for the student and/or parents regarding the use of the AIM. In cases where the AIM is delivered via a device, the district is required to pay for repairs, batteries, or other services to keep the equipment working well. If the device providing the AIM must be taken away for repair, the school must provide similar supports while the device is gone.
IDEA regulations require that, when developing IEPs, IEP teams must discuss certain specific considerations, called “special factors”; there are five such factors in the federal regulations.ii Several of these “special factors” are relevant to the AIM discussion. For students who are blind or visually impaired, the IEP team must specifically consider and include in the IEP whether the child will be instructed in Braille, unless, after consideration of an evaluation of the student’s reading and writing skills, needs, future need of Braille, and appropriate reading/writing media, that instruction of Braille is not appropriate for a child. Another required topic that must be addressed when developing an IEP is the student’s need for assistive technology devices and services, which includes AIM in forms such as audio and electronic text. Communication needs, including some specific needs of students who are deaf/hearing impaired, are also a “special factor.” Significantly, Delaware has demonstrated notable innovation in adding an additional “special factor” in the Delaware special education regulations, which directly addresses AIM: IEP teams have a specific requirement to consider the need for AIM for students who are blind, visually impaired, and/or have a physical or print disability.iii On the actual IEP document, these “special factors” have specific check-boxes that must be checked indicating whether or not the student has a need for the “special factors”; if “yes” is checked the need should be addressed in the IEP.
The newest version of IDEA adopted the National Instructional Materials Accessibility Standard “NIMAS” and established the National Instructional Materials Access Center “NIMAC” to help make sure there is more AIM created for students who are blind or who have print disabilities. For students eligible under NIMAS, this makes it easier for schools (and thus the student) to obtain accessible instructional materials. While this is a good thing for students with print disabilities or who are blind, if a student needs AIM but does not fit into the rules for NIMAS/NIMAC eligibility they may be told, wrongly, that they cannot be provided AIM. While it is true that only those eligible under NIMAS are entitled to NIMAC derived materials, it is not correct that students who need AIM cannot be permitted access to AIM through other sources.
It is very important to remember that, in fact, the IDEA, the ADA, and Section 504 require that students with a disability-related need for AIM, regardless of if they have some type of disability other than print impairment/blindness – hearing impairments, learning or intellectual disabilities, etc. – must still be provided with appropriate AIM in a timely manner.iv The IDEA regulations about NIMAS specifically state that the NIMAS regulations do not relieve the state school systems from ensuring that children with disabilities who need instructional materials in accessible formats, but who are not covered by NIMAS, receive those instructional materials in a timely manner (see 34 CFR § 300.172(b)(3))! The Office of Special Education and Rehabilitative Services also has clarified that the obligation to provide accessible materials to all students who need them remains whether or not the student qualifies for NIMAS-derived files.v In other words, a student not eligible under NIMAS but who nonetheless needs AIM can still get it from another source!vi
Section 504 and the ADA in the context of public schools is about ensuring that schools provide all students, including students with disabilities, the ability to equally participate in their education. Therefore, schools must ensure that school programs are accessible to all students, including students with disabilities. In order to do so for students with disabilities, schools must provide students with reasonable accommodations, or changes to the education program/policies. AIM is one type of accommodation that can be provided.vii Under Section 504, schools are required to provide a free, appropriate, public education or “FAPE” to students with disabilities, so schools must provide AIM, in a timely manner, at no cost to the student/parents if needed for that student to receive an appropriate education. If a student needs a device for the AIM (such as an electronic media audio player or reader), under Section 504, the school must provide that device at no cost.viii The school may be required to provide training on how to use the device, if needed. It is the Disabilities Law Program’s position that the school and not the student/parent is responsible for repairs and maintenance of that device.ix
Students and parents of students, who believe that they have been wrongly denied AIM or that their rights regarding AIM were otherwise violated, should know that they may question this decision through the complaint, appeal, and other procedural safeguards available under the ADA, Section 504, and/or the IDEA. For more information, parents may wish to contact the Delaware Department of Education (http://www.doe.k12.de.us/), the U.S. Department of Education Office for Civil Rights (http://www2.ed.gov/about/offices/list/ocr/index.html), the U.S. Department of Education Office of Special Education Programs (http://www2.ed.gov/about/offices/list/osers/osep/index.html), or the Disabilities Law Program of Community Legal Aid Society, Inc. (http://www.declasi.org/).
iSee 34 CFR § 300.172(b)(3).
ii34 C.F.R. § 300.324(a)(2); see also Delaware regulation: 14 DE Admin. C. § 925.24.2.
iii14 DE Admin. C. § 9126.96.36.199. The checkbox on the Delaware IEP form reads: “Intervention supports and strategies for students who have difficulty accessing and/or using grade-level textbooks and other core materials in standard print formats.”
ivThe U.S. Department of Education has long supported the provision of modified textbooks and workbooks as an adaptation to the educational program pursuant to Section 504. See Office of Special Education and Rehabilitative Services, “Joint Policy Memorandum”, September 16, 1991, 18 IDELR 116.
vIn response to the question, “[a]re students who receive services under Section 504 of the Rehabilitation Act eligible to receive specialized formats from NIMAS-derived files through the NIMAC?” OSERS clarifies that while Section 504 does not entitle students to NIMAS-derived files through the NIMAC unless they are otherwise eligible under IDEA, “SEAs and LEAs are required to provide accessible materials to all students who need them, regardless of whether or not they qualify for accessible materials produced from NIMAS-derived files (34 CFR §300.172(b)(3)).” OSERS, U.S. Department of Education, “Questions and Answers on the National Instructional Materials Accessibility Standard (NIMAS)”, Revised August 2010.
viIn the case of a student who is not eligible for NIMAS-derived AIM, the educational entity could, for example, purchase accessible versions of textbooks and other instructional materials directly from the publisher.
viiCiting to 34 C.F.R. §104.44(a); 28 C.F.R. § 35.160(b)(1), the “Report of the Advisory Commission on Accessible Instructional Materials in Postsecondary Education for Students with Disabilities,” explained that Section 504 and Title II of the ADA’s prohibition of discrimination requires the provision of academic adjustment, including auxiliary aids and services, be provided to qualified students with disabilities; the Report clarified that “AIM are frequently required in postsecondary settings as an auxiliary aid.” The Report also cites a June 29, 2010 Office for Civil Rights (OCR) and Department of Justice (DOJ) joint “Dear Colleague” letter (DCL) to colleges and universities regarding the use of electronic book readers and other new technology that is not yet accessible to students with vision impairments; the DCL explained that the use of such technologies in a classroom when the technology is inaccessible to students with disabilities, is discrimination prohibited by both the ADA and Section 504 unless those individuals are provided accommodations or modifications that allow them to receive equal educational benefits. The report continues by explaining that on May 26, 2011, OCR issued a frequently asked questions (FAQ) document to provide more details on the June 29, 2010 DCL. The FAQ highlighted that the DCL applies to all emerging technologies, not just electronic book readers, and that the principles apply not only to students with vision impairments, but to those with other disabilities (the Report gives the example of dyslexia), that affects their ability to access written materials. OCR also clarified in this FAQ that these principles apply to elementary and secondary schools. This report then discusses the complexities of copyright law and provides a number of recommendations to increase access to AIM. While this report focuses on postsecondary education, it is informative for elementary and secondary schools as well, indeed, the OCR FAQ demonstrates OCR’s intention that these issues be addressed by elementary and secondary schools as well.
viiiOCR has explained that “the obligation to make accommodations or modifications to avoid disability-based discrimination – also applies to elementary and secondary schools under the general nondiscrimination provisions in Section 504 and the ADA” and is also supported by the requirement to provide a free appropriate public education, in their FAQ clarifying the requirement to provide accessible electronic book readers, or accommodations or modifications to ensure equal and integrated educational programs. OCR, “Frequently Asked Questions About the June 29 2010, Dear Colleagues Letter”, May 26, 2011.
ixWe believe this is a correct reading of Section 504’s requirement to provide a free appropriate public education, but we are unaware of any Office of Civil Rights opinion directly on point.