ADA in Focus: Winter 2016

Volume 20, Number 1

ADA In Focus is published three times yearly by the Mid-Atlantic ADA Center. It is also available by request in large print, Braille, audio CD, and computer disk. To obtain copies in other formats, contact us.

ADA In Focus is intended for use by individuals, state and local governments, businesses, legal entities, and others interested in developments in the Americans with Disabilities Act. This publication is intended solely as an informal guidance and should not be construed as legally binding. ADA In Focus does not serve as determination of the legal rights or responsibilities under the ADA for any individual, business or entity. Learn more about the Mid-Atlantic ADA Center.

Winter 2016, Volume 20, Number 1 (suitable for printing)

Winter 2016, Volume 20, Number 1, in large print (suitable for printing)

In this issue:

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Director's Corner

Picture of Marian Vessels

by Marian Vessels
Director, Mid-Atlantic ADA Center

Happy New Year!! Welcome to our first newsletter of 2016. We are excited to bring you this issue, filled with lots of great resources, materials, and our cover story about how the judicial process is required to include those with disabilities.

This past year there has been a lot of news coverage about arrests and the incarceration process. Inclusion for individuals with disabilities means access to that process, too, including arrests, transportation, participation in court proceedings, and incarceration. 

Many years ago when I first began training on disabilities issues, I heard that people with disabilities were often not incarcerated because the jails were not accessible. We have come a long way from those days! Now correctional facilities are providing an inclusive experience for all inmates, including those with disabilities. 

We talk about the ADA being a civil rights issue, not just a law about employment or physical access issues. Civil rights also means being responsible as a citizen, and assuring that people with disabilities are treated fairly and in an inclusive, accessible manner while moving through the judicial process.

We encourage you to let us know how we can assist you in making this 26th year of the ADA a banner year for the inclusion of those with disabilities!

Ms. Vessels is Director of the Mid-Atlantic ADA Center, having served in this role since 1996. Among her primary areas of expertise are training and technical assistance on the ADA as it relates to employment, state and local government issues, and the hospitality industry. She is in considerable demand as a speaker and trainer.

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Center Update

ADA Resource Networks Update

Resource NetworksThe Mid-Atlantic ADA Center developed the resource network program to connect peers in the region and to facilitate access to ADA Center resources. We have five ADA Resource Networks:

  • ADA Leadership Network: experienced ADA trainers
  • Community Partners Network: advocates who share information about the ADA in their communities
  • Title II Network: ADA Coordinators and others in state and local government who work to implement the ADA within their agencies

We also have two new networks, offshoots of the Title II Network, which came about because of certain agencies’ unique concerns:

  • Transit Network: ADA Coordinators in public transportation agencies
  • Corrections and Law Enforcement Network: professionals in those agencies whose responsibilities include ADA implementation

Network benefits include an interactive listserv, discounted registration to the Mid-Atlantic ADA Update in September, and support for training and public awareness activities. For more information on the network program or how to apply for membership, please visit the Mid-Atlantic ADA Resource Networks.

Upcoming Network Activities
  • Interactive webinars for each network where members will be able to discuss their experiences and share wisdom
  • The ADA Resource Network Blog will be posted on our website and members will contribute as guest bloggers
  • Community Partners Network Online Scrapbook with information and photos of member activities and events
  • Two-day train the trainer event for new ADA Leadership Network members
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Focal Point

Law Enforcement and the ADA

scales of justiceState and local government police forces, court systems, and detention and correctional facilities and programs are all addressed by Title II of the ADA. Individuals with disabilities are entitled to the full range of protections afforded by the ADA when they are subject to these programs and participate in related activities.

While these activities and programs can involve distinct considerations for security and safety, the general principles of ensuring equal opportunities still hold sway. People who have hearing, vision, and speech disabilities are entitled to effective communication. Reasonable modifications in policies and procedures may be needed to make participation possible for individuals with a wide variety of disabilities and health conditions. Accessible facilities are needed for people with physical disabilities.

Police Agencies

Our local police officers, the front line of the criminal justice system, will interact with many of us at one time or another in our lives. We may be victims of a crime, witnesses, complainants, suspects, or offenders.

Law enforcement officers have challenging jobs, to say the least, but they must be prepared to respond to and interact with everyone, and that includes people with disabilities. Officers may need to communicate with a suspect or witness who is deaf, arrest and transport an individual who uses a wheelchair, respond to an individual experiencing a psychiatric crisis, or assist a crime victim with an intellectual disability.

Courts

Many of us will need to go to court as plaintiffs, defendants, attorneys, witnesses, jurors, members of the media, or simply as spectators interested in proceedings that are open to the public. Individuals with disabilities have the right to participate in our judicial system just as everyone else does.

gavel atop law booksCourt facilities, even newly constructed ones, present specific design challenges. Traditional courtroom design has relied on raised and lowered levels to create physical and psychological separations between various parties, define their roles, and maintain lines of sight needed (such as between jurors and witnesses). However, standards require access to all areas that may be used by the public, including witnesses, jurors, plaintiffs, defendants, attorneys, and spectators.

Where seating is provided for spectators, accessible seating locations must be included for wheelchair users and others with disabilities who may need these spaces. A courtroom is, after all, a type of public assembly area. (Raised employee areas within courtrooms, including judges’ benches, can be designed to be “adaptable,” with sufficient space and/or wiring to allow future installation of a means of vertical access, such as a ramp or platform lift.)

Additionally, all courtrooms, regardless of whether they are equipped with public address systems, must have assistive listening systems available for the use of individuals who are hard of hearing.

Although some modern courtrooms are designed to eliminate at least some of the traditional raised and lowered areas, creative design solutions can preserve these features in many cases, through the incorporation of ramps and/or platform lifts. Access can often be improved even in older facilities.

Detention and Correction

Jails and some other types of detention facilities are generally designed for holding people on a short-term basis, such as those awaiting trial or serving short sentences. These facilities are typically operated by local law enforcement agencies.

jail cellPrisons and other correctional facilities, on the other hand, are usually designed for more long-term confinement. They are typically operated by states (except of course, for federal prisons), and are often more self-contained, with their own medical facilities, food preparation and dining areas, libraries, recreational spaces and equipment, and more amenities for visitors.

Prisons also tend to offer a broad array of programs aimed at rehabilitation, skill building, and preparation for re-entry into society. Classes, work programs, counseling, and religious activities are available. All of these programs and opportunities, whether they are mandatory or optional, need to be accessible to inmates with disabilities who are eligible to participate in them.

An inmate who is blind may need accessible materials or alternatives to participate in a class or have access to library services. An inmate who is deaf or hard of hearing may need interpreter services, the use of an assistive listening device, or other aids or assistance. Modifications may be needed for people with a variety of disabilities, ranging from psychiatric disabilities to chronic health conditions.

Accessible facilities are also needed for individuals with various physical disabilities. Standards establish requirements for minimum numbers of accessible holding and housing cells, including special cells (such as those used for protective custody, disciplinary segregation, detoxification, and medical isolation). Where facilities provide separate areas for different levels of security or different groups (e.g. males and females, or adults and juveniles), accessible cells should be dispersed among the types so inmates can be housed appropriately.

Again, creative design of products and spaces has led to solutions for accessible jail and prison facilities that maintain safety and security.

Standards also call for accessible features in visiting areas, and visitors with disabilities are entitled to reasonable policy modifications and other considerations that enable them to visit their family members and friends.

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Questions and Answers

Here is a sample of questions related to the justice system we’ve received in our Center.

Are police officers trained in how to handle people with intellectual disabilities or mental illness, so they will understand what behavior might be due to a disability?

Many law enforcement officers and other first responders receive training on disability issues, and many law enforcement agencies have policies and procedures for officers to follow in certain situations, such as when responding to a call for help from an individual known or thought to be experiencing a mental health crisis.

While there is no specific requirement in the ADA or its regulations for law enforcement officers to be trained on disability issues, it’s certainly a good practice that can help ensure compliance and reduce risks for both officers and citizens. The Department of Justice, in its analysis of the original Title II rule published in 1991, noted that “ … in many cases, lack of training leads to discriminatory practices, even when the policies in place are nondiscriminatory.”

There are resources available to help law enforcement agencies plan, deliver, or obtain training on the ADA and disability issues, including, of course, our Mid-Atlantic ADA Center and the ADA National Network.

Additionally, the National Center on Criminal Justice and Disability (NCCJD) is a national clearinghouse for information and training related to people with disabilities, especially people with intellectual and developmental disabilities, as victims, witnesses, suspects, or offenders within the criminal justice system. NCCJD offers trainings such as webinars, training materials, and publications for individuals with disabilities, family members and advocates, service providers, attorneys and other legal professionals, and professionals in the fields of law enforcement and corrections.

I have a disability that causes my hands to shake. I am afraid that if I get pulled over while driving, the officer will assume I have been drinking. What are my rights in this situation? 

Even routine traffic stops can be fraught with anxiety, for officers and citizens alike. Many people with various types of disabilities are concerned that the effects of their conditions will be misinterpreted, and unfortunately, these concerns are not entirely unfounded. Many encounters between law enforcement officers and citizens are conducted safely and successfully, but people with disabilities have experienced arrest, restraint, injury, and even death as a direct or indirect result of their conditions.

Individuals may want to explain if they have disabilities that cause trembling, slurred speech, unsteady gait, or other issues that might raise concern for an officer. If the officer intends to test for alcohol or other driving impairment, an individual who knows he or she will not be able to perform standard field sobriety tests (walking a straight line, standing on one leg, etc.) can request a chemical test (blood, breath, or urine), which will usually require transportation to a facility but will produce a more accurate and reliable result.

Again, training for officers on disability issues can help them interact effectively with people with disabilities.

I am deaf and use American Sign Language (ASL) to communicate; can I ask for an interpreter if I am in a situation where I could be arrested? What if I am in jail or prison for an extended period of time? I was told it would be too expensive to provide interpreters. 

Public entities are required to ensure effective communication by providing “auxiliary aids and services” when necessary (this includes sign language interpreter services, as well as other devices or methods of communicating with people with hearing, vision, and speech disabilities). These requirements are essentially the same in any setting, including police interactions, detainment, and incarceration.

These obligations are likewise subject to the same limitations as in other settings; aids and services do not have to be provided if they would result in a “fundamental alteration” of a program, service, or activity, or in an “undue burden.” An undue burden is a significant difficulty or expense, taking into account all the resources available to the department, agency, or program.

However, the circumstances and practical issues that can arise in law enforcement situations and incarceration can present unique challenges and limitations. Law enforcement officers do not have to set aside legitimate safety concerns or postpone actions (including arrests) that are clearly warranted. If an individual who is deaf is arrested in an urgent situation, an interpreter may be summoned to the station to facilitate booking, informing the suspect of his or her rights, interrogations, etc.

There are situations, even in law enforcement, when an interpreter may not even be needed for effective communication. For example, issuing a routine speeding ticket is often accomplished effectively through the exchange of written notes. But other situations, including many that involve complex, lengthy, and important issues, such as interrogations, medical assessments and services, rehabilitative classes, and counseling, just to name a few, will likely require interpreter services for a person whose primary language is ASL.

If I have to go to state court, do my rights under the ADA still apply?

Absolutely. State and local government courts are covered by the ADA just like all other programs and activities of states, counties, cities, townships, boroughs, etc. In fact, the Supreme Court, in Tennessee v Lane, a case that challenged the constitutionality of Title II, called access to the courts a “fundamental right.”

I get regular treatment for my disability and I can't be in court on the day/time scheduled; can I ask to have that rescheduled?

Scheduling adjustments are examples of “reasonable modifications in policies, practices, or procedures” that may be needed to accommodate individuals with disabilities. Individuals can always make requests, but whether granting requests is “reasonable” may depend on a number of factors. Simple schedule changes are often easily accommodated, and most courts routinely grant requests for schedule changes for reasons other than disability.

Many court systems have an established procedure for disability-related requests, often handled by the system’s “ADA Coordinator” (an employee designated to manage ADA compliance issues).

Do ADA rights still apply to people in jail?

Yes, the ADA covers state and local jails and prisons, and protects prisoners with disabilities. The Supreme Court, in Pennsylvania Department of Corrections v Yeskey, rejected Pennsylvania’s arguments that the application of Title II to state prisons was inappropriate. The court found the broad language of Title II to “unambiguously” extend protections to prison inmates.

Writing in the recent case of Pierce v District of Columbia (see the article in the “Zoom in on Court Decisions and Settlements” section) the judge explained that “[i]ncarceration inherently involves the relinquishment of many privileges; however, prisoners still retain certain civil rights, including protections against disability discrimination.” Prisoners with disabilities should not be denied access to facilities or activities, or subjected to more severe punishment or less favorable conditions than inmates without disabilities whose circumstances are similar.

Will I be permitted to keep and use my mobility device or other aids, such as canes or braces, in jail or prison?

In many cases individuals will be able to keep their personal assistive devices during arrest procedures or while they are in jails or prisons. Modifications in policies or procedures may sometimes be needed to safeguard devices from theft or abuse, and to ensure that devices are not used as weapons. When devices cannot be allowed in certain settings or at certain times where there are valid safety and security issues, law enforcement and corrections agencies may need to provide alternatives (possibly including personal assistance) so that detainees and inmates are able to access facilities and participate in activities.

What if I develop a disability while incarcerated? Is a prison responsible for providing equipment needed for my disability (hearing aids, wheelchairs, etc.?) How do prisons handle people with severe food allergies?

While most entities covered by the ADA are not generally required to provide devices or services of a personal nature to people with disabilities, things are different in jails and prisons. It is a well-established legal principle that when a public entity takes custody of an individual, including confining a person against his will, the public entity has a duty to provide for his safety and general well-being. All detainees and inmates must be provided with the health care they need, and related devices and services are often part of that. Inmates with disabilities may need to be provided with medication, treatment, equipment, devices, and medical supplies. Likewise, medical dietary needs must be met for individuals with severe allergies, diabetes, and other conditions.

Again, alternatives, along with modifications in policies or practices, may sometimes be needed to ensure safety and security are not compromised.

What can I do if I think my rights have been violated by a police department, a court, or a prison?

All entities covered by Title II of the ADA, if they employ at least 50 people, are required to designate at least one employee to coordinate ADA compliance efforts, and to establish a grievance procedure to resolve complaints. These requirements, therefore, apply to all but the smallest public entities. This creates an option for addressing problems within the agencies.

Complaints alleging violations of the ADA can be filed with the U.S. Department of Justice against any state or local government police department or other law enforcement agency, court system, jail, or prison.

Individuals can also bring private lawsuits against state or local government agencies, although there are limitations on the types of damages that can be obtained. It should be noted that some cases that have been brought by prisoners have alleged not only violations of the ADA, but violations of their basic constitutional rights as well (the right to due process under the law, or the right to be free from cruel and unusual punishment).

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Publications and Resouces

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Zoom in on Training

Save the Date: Mid-Atlantic ADA Update

September 14 - 15, 2016
Pre-Conference Session: ADA Overview, September 13, 2016
Hilton Baltimore
401 West Pratt Street
Baltimore, Maryland 21201
Stay tuned for upcoming details on our 23rd annual conference!

Save the Dates: Mid-Atlantic ADA in Focus Webinar Series

All sessions take place from 2:00 to 3:30 p.m. Eastern Time. Check our Trainings/Workshops pages for more details!

  • March 2, 2016: Accommodating Employees with Allergies: Situations and Solutions, Presented by Teresa Goddard, Job Accommodation Network (JAN)
  • April 6, 2016: Building a Digital Accessibility Program, Presented by SSB BART Group
  • April 20, 2016: The Digital Accessibility Maturity Model: Enabling Accessibility Operations, Presented by SSB BART Group
  • May 4, 2016: Alternate Modes of Transportation, Presented by Donna Smith, Project ACTION Consulting
  • June 1, 2016: Program Accessibility for Historic Facilities, Presented by Ray Bloomer, National Park Service
  • July 13 2016: Accommodations in Higher Education, Presented by Christopher Moy, Montgomery College

ADA National Network Online Learning

Check out the ADA National Network’s programs, which include the ADA Audio-Conference Series, the ADA Legal Webinar Series, the Accessible Technology Webinar Series, and, in collaboration with the U.S. Access Board, the Accessibility Online Webinar Series. Upcoming sessions:

This is just a sample of the variety of training opportunities coming up on a local, regional, and national level. Visit our Training pages for a comprehensive listing!

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Close-Ups: What's New

FTA: ADA Circular Provides Detailed Guidance to Public Transit Agencies

The U.S. Department of Transportation’s Federal Transit Administration (FTA) published its ADA Circular to provide guidance for transit agencies. This comprehensive document explains ADA requirements in detail, using real-world examples of good practices to help ensure accessible services for passengers with disabilities.

The Circular also provides illustrations of common accessibility problems and solutions, information about accessible vehicles, rail cars, and vessels covered by the FTA’s rules, and a variety of sample policies and forms, such as a checklist for newly constructed or altered transportation facilities, and sample paratransit eligibility determination letters.

New from DOJ: Guidance on Restriping Parking Lots

This updated publication outlines the obligations that businesses and state and local governments have to ensure access in parking facilities. The user-friendly document includes information about the new provisions in the 2010 ADA Standards, helpful diagrams and illustrations, and tips for effective designs of accessible parking spaces and accessible routes connecting them to buildings and facilities.

Supplement to the 2013 DOJ/DOT Joint Technical Assistance on Requirements to Provide Curb Ramps when Streets, Roads, or Highways are Altered through Resurfacing

This new publication issued jointly by the Department of Justice (DOJ) and the Department of Transportation (DOT) responds to frequently asked questions that the Federal Highway Administration (FHWA) has received since DOJ and DOT published their 2013 joint technical assistance document on this topic.

The guidance will help state and local government agencies analyze their roadway maintenance and alterations projects to ensure that curb ramps are installed or upgraded when necessary. The document also reiterates the ongoing obligations public entities have to comply with ADA standards when they build new pedestrian facilities in the public right-of-way, and to facilitate access to existing public programs and services.

DOJ Announces Regulatory Priorities and Status of ADA Rulemaking

The Department of Justice (DOJ), in its recent Statement of Regulatory Priorities, announced the status of its rulemaking activities related to the ADA. Here are some of the highlights.

Website Accessibility

The Department issued an Advanced Notice of Proposed Rulemaking (ANPRM) in 2010, seeking public input on rules for the accessibility of websites under both Title II (state and local governments) and Title III (private businesses). The next step in the rulemaking process, a Notice of Proposed Rulemaking (NPRM), has been eagerly awaited by agencies, businesses, and people with disabilities. 

The Department expects to issue an NPRM under Title II this year, but will push back the Title III rulemaking until at least 2018, anticipating an outgrowth of infrastructure development related to the Title II rule that will in turn support expansion of rules into the private sector.

Captioning and Audio Description in Movie Theaters

An ANPRM was issued in 2010, and an NPRM in 2014 proposing to revise the Title III regulation to require that movie theaters have the capability to exhibit movies with closed captioning and audio description when movies are available with these features. The Department expects to issue a final rule this year.

Next Generation 9-1-1

This rulemaking under Title II will provide regulatory guidance for public safety answering points (PSAPs) to ensure that people with disabilities do not get left behind as PSAPs shift from analog telecommunications technology to new Internet-Protocol (IP)-enabled services that provide voice and data (such as text, pictures, and video) capabilities.

Equipment and Furniture

This rulemaking process is focused on expanding accessibility standards to address equipment and furnishings that are not fixed or built-in. An ANPRM sought public comments on medical equipment such as examination tables and chairs in doctors' offices, scales, and radiological diagnostic equipment; beds in hospitals, nursing homes, and hotels; accessible golf cars; and electronic and information technology, including free-standing ATMs, point-of-service (POS) devices, and kiosks.

DOJ expects to publish in 2017 a separate NPRM under Title III on beds in accessible hotel guest rooms, and in 2018 an NPRM under both Title II and Title III on accessible medical equipment.  The remaining items (golf cars, POS devices, etc.) will be the subject of an NPRM anticipated in 2018.

EEOC Launches Direct Video Access for ASL Speakers

The U.S. Equal Employment Opportunity Commission (EEOC) announced the launch of a new service that will enable individuals who are deaf and hard of hearing whose primary language is American Sign Language (ASL) to communicate directly with agency staff. EEOC information intake representatives who are fluent in ASL will be available to answer questions using videophones.  

EEOC Issues Publications on the Rights of Job Applicants
and Employees Who Have HIV Infection

The U.S. Equal Employment Opportunity Commission (EEOC) issued two documents addressing workplace rights under the ADA for individuals with HIV infection.

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Zoom in on Court Decisions and Settlements

DC Court: Prison Officials Have Affirmative Duty to Assess Needs of Inmates with Disabilities

A federal district judge ruled in the case of Pierce v District of Columbia that prison officials cannot rely entirely on specific requests for accommodations from inmates, but must take proactive steps to determine if inmates with known or obvious disabilities have needs.

There was a great deal of dispute between the plaintiff, an individual who is deaf, and the defendant prison officials about details, such as when (or how many times) and for what purposes the inmate requested sign language interpreters or other accommodations, or whether communication methods used (e.g. exchange of written notes) were effective.

Finding that no reasonable jury could possibly conclude that the individual did not request interpreter services, or that he could communicate effectively in writing, the judge noted the record was “replete” with references to requests for interpreters in various contexts.

“Most notably in this regard, the record contains a revealing set of handwritten notes between Pierce and his case manager … in which Pierce writes: "They violate my rights here — Thire [sic] was no interpreter for inmate program, Hall meeting, or orientation process. I feel I [sic] abandoned. ADA law says there's a must [sic] for everyone to access equal!" … To which [the case manager] replies, "[a]s long as we are able to communicate through writing, your rights have not been violated." … And Pierce responds, "My writing is not good[;] I feel our communication is vey[sic] limited. That's why I want an interpreter so it could [sic] prevent our misunderstand [sic]. I want to fully understand what all of you say." Pierce continues, "It's not fair[;] everyone understands whats'[sic] going on here, I dont'[sic] understand at all [sic] since I got here."”

Noting that “testimony from the District's own employees confirms that Pierce repeatedly asked for an interpreter” and “contemporaneous log book entries, handwritten notes, and memoranda all document Pierce's persistent efforts to seek and obtain an ASL interpreter,” the judge called the District’s “suggestion” that the inmate did not request interpreter services “preposterous.”

Ultimately, the judge found most of these specific disputes irrelevant, and simply rejected the District’s contention that it only had a duty to respond to specific requests in the first place. 

“ … nothing in the disability discrimination statutes even remotely suggests that covered entities have the option of being passive in their approach to disabled individuals as far as the provision of accommodations is concerned. Quite to the contrary … Section 504 and Title II mandate that entities act affirmatively to evaluate the programs and services they offer and to ensure that people with disabilities will have meaningful access to those services.”

Ruling for the plaintiff, the judge found the District’s “willful blindness” to the inmate’s needs “plainly amount[ed]” to deliberate indifference to his federally protected rights. Few questions remain for a jury, including the amount of compensatory damages to be awarded to the plaintiff.

DOJ Settlement Will Improve Access to Polling Places in Augusta County, Virginia

"VOTE" buttonThe Department of Justice (DOJ) filed a complaint and proposed consent decree with Augusta County, Virginia, resolving claims that the county violated the ADA by failing to provide accessible polling places.

Under the consent decree, which must be approved by the court, the county will make temporary changes for election day at many of its polling places and permanent changes to the Augusta County Government Center before the March 2016 elections. Additionally, in the future the county will select only polling place locations that are accessible on election day. The county will also provide training to poll workers and file reports on its compliance. 

DOJ: Youth with Dwarfism Should Have Been Allowed to Wrestle Younger Competitors

The Department of Justice and the Pikes Peak Youth Sports Association in Colorado agreed to resolve a dispute about an age division policy. The Department alleged in its complaint that the Association discriminated against a seven year old child when it refused to modify its policy to allow him to wrestle competitors who were younger than he, but more similar in size and weight.

The Association will establish new policies, train staff, and pay $5,000 in compensatory damages to the complainants.

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Snapshots: Cool and Useful Websites

Explore VR

This site offers state vocational rehabilitation (VR) agencies easy and convenient access to a wide range of data and material to support planning, evaluation, and decision-making. VR counselors and staff can explore and share information to build the capacity of their own organizations through collaboration and innovation. The site offers a wealth of data, as well as resources such as publications, toolkits, and webinars.  

Resources for Caregivers

The Caregivers Action Network and the Family Caregiver Alliance offer information and resources to support those caring for family members or friends with disabilities and chronic health conditions.

IDEAs that Work

As part of its celebration of the 40th anniversary of the Individuals with Disabilities Education Act (IDEA), the Office of Special Education and Rehabilitative Services (OSERS) at the U.S. Department of Education has launched this website to provide additional support for teachers and families of students with disabilities and struggling learners.

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