[nfbmi-talk] all t2 entities need to conduct and implement this
joe harcz Comcast
joeharcz at comcast.net
Tue Jan 21 15:18:08 UTC 2014
Note that while designed for public schools our state entities, all of them including DTMB, Bureau of Services for the Blind, courts, DHS etc. were supposed to have conducted and implemented a self-evaluation (including chapter seven on effective communications) and more importantly implemented it almost twenty years ago on the implementation date (January 26, 1992() of ADA Regulations. Yet today I and other blind folks don't get squat in accessable formats, and in a timely manner, affirmatively and/or are illegally charged with the abuse of FOIA a surcharge.
This is a comprehensive guide for this and for eliminating discriminatory policies and practices too which are rampent in this state.
Nothing about us without us!
Joe Harcz
ADA
COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT:
A Self-Evaluation Guide for Public Elementary and
Secondary Schools
OFFICE FOR CIVIL RIGHTS
DEPARTMENT OF EDUCATION
UNITED STATES OF AMERICA
COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT:
A Self-Evaluation Guide for Public Elementary and Secondary Schools
This Guide is intended to serve as a resource to assist school
districts in conducting their self-evaluations under the Americans
with Disabilities Act (ADA). This Guide was developed by the U.S.
Department of Education's Office for Civil Rights in cooperation with
Adaptive Environments, Inc. Funding was provided by the National
Institute on Disability and Rehabilitation Research (NIDRR) as part
of its ADA technical assistance initiative. The Civil Rights Division
of the U.S. Department of Justice provided support for dissemination
of the Guide. The Guide reflects the interpretations of the U.S.
Department of Education's Office for Civil Rights, to which the U.S.
Department of Justice has delegated responsibility for ensuring that
public school systems are in compliance with Title II of the ADA. It
has been reviewed by the Civil Rights Division of the U.S. Department
of Justice, the U.S. Equal Employment Opportunity Commission, and the
U.S. Department of Education's Office of the General Counsel and
Office of Special Education and Rehabilitative Services. It is
important to note that while the Guide reflects the interpretations
of the U.S. Department of Education's Office for Civil Rights, the
Title II regulation must be consulted for a complete understanding of
the legal requirements of Title II. This Guide is available in
alternative formats upon request.
Additional copies of the Guide may be purchased from the U.S.
Government Printing Office, (202) 512-1800. For further technical
assistance in understanding the responsibilities of public school
systems under Title II of the ADA, public school officials can
contact the U.S. Department of Justice's ADA Information Line at
(800) 514-0301 (voice), (800) 514-0383 (TDD). ADA specialists are
available to provide technical assistance 10 A.M. to 6 P.M. eastern
time Mondays through Fridays, except Thursdays when the hours are 1
P.M. to 6 P.M. Public school officials can also contact the ADA
National Access for Public Schools Project, funded by NIDRR, at
Adaptive Environments, Inc., (800) 893-1225 (voice/TDD).
ACKNOWLEDGMENTS
The U.S. Department of Education's Office for Civil Rights
acknowledges the efforts of the following individuals who have
contributed substantively to the development of this Guide:
U.S. Department of Education, Office for Civil Rights
Alice Wender, Chief, Elementary and Secondary Education
Technical Assistance and Program Support Branch
David Berkowitz, Primary Author/Team Leader
Joseph Bardari, Program Analyst
Doreen Dennis, Senior Attorney/Advisor
Rosemary Fennell, Senior Program Analyst
Anne Hoogstraten, Senior Attorney/Advisor
Adaptive Environments, Inc.
Elaine Ostroff, Executive Director
Soni Gupta, Facilities Survey Developer
Susan Hills, Consulting Author/Editor
Ruth Lehrer, Editorial Assistant
Chris Palames, Independent Living Resources, Technical Consultant
_Special _appreciation to David Esquith, ADA Technical
Assistance Project Officer, National Institute on Disability and
Rehabilitation Research, Office of Special Education and
Rehabilitative Services, U.S. Department of Education, for his
substantial contribution to the development of this Guide.
Appreciation is also extended to Geoff Rhodes, Office of Special
Education and Rehabilitative Services, U.S. Department of Education,
for designing the cover of the Guide, and Frank Romano, Office of
Special Education and Rehabilitative Services, U.S. Department of
Education, for taking the photographs that appear on the cover.
_Special _appreciation to the Public Access Section, Civil
Rights Division, U.S. Department of Justice; the Office of Legal
Counsel, U.S. Equal Employment Opportunity Commission; and the U.S.
Department of Education's Office of the General Counsel and Office of
Special Education and Rehabilitative Services for their detailed
reviews.
_Special _appreciation is also extended to Arlington County,
Virginia Public Schools for their major contribution regarding the
photographs that appear on the cover.
__Compliance with the Americans with Disabilities Act: A
Self-Evaluation Guide for Public Elementary and Secondary _Schools
was based in part on the __Title II Action Guide for State and Local
_Governments, written by Adaptive Environments, Inc. under contract
to Barrier-Free Environments, Inc., NIDRR Grant No. H133D10122.
CONTENTS
PREFACE i
How This Guide Can Help You i
How the Guide Is Structured i
Citations iv
CHAPTER ONE: INTRODUCTION TO TITLE II 1
Background of the ADA 1
An Overview of the ADA a1
The Scope of Title II a3
Title II and Other Laws a4
The Building Blocks of Title II 6
CHAPTER TWO: WHO IS PROTECTED UNDER TITLE II? 11
Who Is a Person with a Disability? a11
What Does It Mean to Be Qualified? b20
Associational Discrimination b23
Retaliation or Coercion a24
Exclusions from ADA Protection a25
CHAPTER THREE: PLANNING FOR COMPLIANCE 31
Five Action Steps b31
Four Principles of Effective Compliance 41
The Three-Phase Process a43
Implementation: Conducting the Planning Process 47
CHAPTER FOUR: GENERAL NONDISCRIMINATION REQUIREMENTS 61
Overview of FAPE Requirements That Are Incorporated in
General Prohibitions 62
General Prohibitions Against Discrimination a65
Illegal Use of Drugs b79
Smoking b79
Maintenance of Accessible Features 80
Retaliation or Coercion 80
Personal Devices and Services a80
Implementation: Conducting the Review of Nondiscrimination
Policies and Practices 81
CHAPTER FIVE: REQUIREMENTS FOR EMPLOYMENT POLICIES AND PRACTICES 97
An Overview of Applicable Legal Standards a98
Overview of Legal Requirements 99
Basic Definitions b100
The Obligation to Provide Reasonable Accommodation 104
Qualification Standards and Selection Criteria a112
Nondiscrimination in the Hiring Process 114
Post-Offer and Employee Medical Examinations and Inquiries a116
Limiting, Segregating, or Classifying Job Applicants or
Employees 120
Contractual or Other Relationships b123
Discrimination on the Basis of Relationship or Association 125
Retaliation and Coercion a126
Defenses a126
Implementation: Conducting the Review of Employment Policies
and Practices 128
CHAPTER SIX: PROGRAM ACCESSIBILITY 155
Program Accessibility a155
Program Access in Existing Facilities a157
Fundamental Alterations or Undue Burdens 165
Designated Historic Buildings a166
Providing Access in Leased Space c167
Transition Plans b168
New Construction and Alterations b170
Maintenance of Accessible Features b174
Implementation: Conducting the Program and Facility Access
Review 176
CHAPTER SEVEN: REQUIREMENTS FOR EFFECTIVE COMMUNICATION 225
An Overview of Communication Requirements a225
Providing Auxiliary Aids and Services a226
Guidelines for Determining Which Types of Auxiliary Aids and
Services to Provide a228
Technologies Available as Alternatives to Visual, Aural,
and Oral Communication c230
Interpreter Services a235
Telephone Communications b236
Emergency Telephone Services c237
Information and Signage a238
Fundamental Alterations or Undue Burdens 239
Structural Communication Features b239
Implementation: Conducting the Review of Communications 241
CHAPTER EIGHT: COMPLIANCE PROCEDURES 257
Complaints 257
Employment-Related Complaints b259
RESOURCES 261
INDEX 271
* Print Page i
PREFACE
HOW THIS GUIDE CAN HELP YOU
__Compliance with the Americans with Disabilities Act: A
Self-Evaluation Guide for Public Elementary and Secondary _Schools is
designed to help public school systems comply fully with the
provisions of Title II of the Americans with Disabilities Act of 1990
(ADA). Written primarily for designated ADA coordinators in
straightforward, non-legalistic language, the Guide presents a
comprehensive process for:
-- planning procedures to ensure ADA compliance,
-- conducting the self-evaluation and transition plan
required under the ADA, and
-- making modifications where needed.
The Guide uses examples throughout to show how regulations would
apply in specific instances. Worksheets outline a structured process
for planning, evaluating, and documenting your compliance activities.
No matter what stage your public school system has reached in
regard to ADA compliance, the Guide will be of assistance. If you
have not completed, or have only partially completed, your required
self-evaluation and transition plan, the Guide will assist you in
identifying necessary steps to achieve compliance. If you have
recently completed your self-evaluation and transition plan, the
Guide may be used as a reference and resource to help you conduct
periodic evaluations to ensure continued compliance as new programs
are introduced and existing ones are modified.
If your public school system completed a self-evaluation under
Section 504 of the Rehabilitation Act of 1973 (Section 504) when it
was required years ago, but has not updated it since the passage of
the ADA, the Guide will assist in identifying key programs, policies,
and practices that were not subject to the Section 504
self-evaluation, and highlight differences between Title II and
Section 504. Note that even when updates to the Section 504
self-evaluation are not legally required, it may be in the best
interest of the public school system to review its entire program for
compliance. Changes in programs and functions inevitably occur over
the years. It is also advisable to revisit actions planned to comply
with Section 504 in order to determine which of them were completed
and to assess their effectiveness.
HOW THE GUIDE IS STRUCTURED
The eight chapters of the Guide are designed to correspond
fairly closely with the regulations, though the order of topics is
occasionally modified to improve readability. Worksheets are
included at the end of Chapters Three through Seven to assist you in
the self-evaluation process; these are intended as basic guides that
should be adapted to suit your school system's specific requirements
and administrative structure. The following summarizes the content of
each chapter to assist you in locating the information you need.
* Print Page ii
Chapter One. Introduction to Title II
This chapter explains the goals of the ADA and briefly discusses
each of its titles, noting entities covered by each Title. It also
comments on the relationship between Section 504 and Title II and
clarifies some of the key differences between them.
Chapter Two. Who is Protected Under Title II?
A critical definition--a "qualified individual with a
disability"--is discussed. Illustrations drawn from education,
employment, and other contexts illuminate the question of who meets
or does not meet definition criteria. Exclusions from this
definition are highlighted. The chapter also gives examples of those
covered because of their "association" with qualified individuals
with disabilities and includes a discussion of when they are entitled
to protection under the law.
Chapter Three. Planning for Compliance
This chapter will help you plan your school system's approach to
ensuring ADA compliance. It identifies the action steps you need to
take to comply, the required timelines for completing each action
step, and the principles of successful compliance. A three-phase
process for completing self-evaluation planning is shown, beginning
with the planning phase and proceeding through the self-evaluation to
the execution of modifications. The chapter concludes with an
expanded discussion of the planning process and how it might be
structured in public school systems such as yours.
Worksheets provide a structure to assist the ADA coordinator in
tracking progress through the start-up phase; forming the compliance
team; developing a comprehensive list and summary of programs,
activities, and services; and defining and monitoring the compliance
process.
Chapter Four. General Nondiscrimination Requirements
This chapter reviews the general prohibitions against
discrimination contained in the Title II regulation. The obligations
of a school district specifically described under Section 504 to
provide a "free appropriate public education" (FAPE) to school-age
individuals with disabilities, regardless of the nature or severity
of their disabilities, are incorporated in the general provisions of
Title II that are discussed in this chapter. The chapter provides an
overview of the FAPE requirements that are part of the general
prohibitions against discrimination section of Title II. Basic equal
opportunity requirements are highlighted. The chapter explains what
is meant by "reasonable modifications" to policies, practices, or
procedures, which the Title II regulation requires when appropriate.
It explains specific requirements such as those related to
eligibility criteria, methods of administration, contractor
selection, and the selection of sites and locations. It also
discusses the application of the Title II provision concerning
personal devices and services.
Worksheets provide a structured framework for evaluating the
school district's policies and procedures related to
nondiscrimination, to identify those for which "reasonable
modifications" are required. School systems may use the worksheets to
summarize their programs, activities, and services to facilitate
review, to collect and document their policies and practices, to
determine aspects of programs to be examined, to document needed
changes to policies and practices, and to solicit comments on
findings.
Chapter Five. Requirements for Employment Policies and Practices
This chapter explains ADA provisions for the full range of
employment issues and activities. It addresses recruitment, hiring,
medical inquiries and examinations, on-the-job benefits, opportuni-
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ties for advancement, and training opportunities. Special attention
is given to the requirement to provide "reasonable accommodation" for
qualified applicants and employees with disabilities. This chapter
introduces and illustrates the concept of "undue hardship." The use
of contracts or other relationships with external agencies in the
hiring process or in other aspects of the employer-employee
relationship is discussed. The chapter concludes with examples of
defenses related to charges of employment discrimination.
Worksheets are provided to assist you in evaluating all aspects
of employment relationships in your school system to ensure
compliance. The worksheets specifically address advertising,
application forms, interviews, medical examinations, health insurance
and other benefits, personnel policies, job tests, and reasonable
accommodations.
Chapter Six. Program Accessibility
This chapter describes the program accessibility requirements of
Title II and highlights major similarities and differences between
the program accessibility requirements of Section 504 and Title II.
The chapter clarifies requirements for accessibility both in existing
facilities and in new construction. It discusses and illustrates
options for making programs accessible, addressing both
administrative and architectural solutions. In addition, it
clarifies relevant regulatory provisions related to leased space and
historic properties.
Worksheets structure the review process by providing forms for
use in conducting the building inventory and noting inaccessible
features, developing nonstructural solutions to providing access, and
identifying the architectural features that must be addressed in the
transition plan.
Chapter Seven. Requirements for Effective Communication
This chapter explains and illustrates the Title II requirements
for effective communication for persons with visual, hearing, and
speech disabilities. Major similarities and differences between the
requirements of Title II and Section 504 for communication are also
presented. The chapter offers a brief discussion of a variety of
auxiliary aids and services that are available to ensure effective
communication; these include assistive listening systems, voice
output computers, and interpreter services. The requirements
regarding telecommunication devices for the deaf (TDDs) are also
explained, as are the requirements for telephone emergency services
and signage. Finally, the chapter explains the concepts of
"fundamental alteration" and "undue burden."
Worksheets presented at the end of the chapter are designed to
help conduct the self-evaluation. School systems can use them to
assess their current capacity to provide effective communication to
persons with disabilities and to support the development of an action
plan to achieve compliance.
Chapter Eight. Compliance Procedures
This chapter reviews the enforcement procedures for Title II and
the remedies available in the event that institutions are determined
not to be in compliance. The chapter then outlines the process for
filing complaints and addresses miscellaneous provisions related to
compliance and enforcement, such as those governing attorney's fees.
Resources
This section identifies sources of information and assistance on
particular issues related to the Title II self-evaluation.
* Print Page iv
Index
The comprehensive index may be used to locate all discussions of
specific subjects related to the ADA and Section 504 in this Guide.
CITATIONS
This Guide contains numerous references to the Code of Federal
Regulations (C.F.R.), the multi-volume codification of regulations
issued by the federal government. A citation "28 C.F.R. 35.103"
means Title 28 of the Code of Federal Regulations, Part 35, Section
103.
The Guide also contains references to the United States Code
(U.S.C.), the multi-volume codification of statutes, or laws, passed
by Congress. A citation "42 U.S.C. 12102" means Title 42 of the
United States Code, Section 12102.
* Print Page 1
** CHAPTER ONE INTRODUCTION TO TITLE II
BACKGROUND OF THE ADA
The Americans with Disabilities Act of 1990 (ADA) became law on
July 26, 1990, after approximately five years of intensive work on
the part of legislators, persons with disabilities, and concerned
citizens. It is arguably the most comprehensive formulation of the
rights of people with disabilities in the history of the United
States or of any other nation.
The ADA's impact can hardly be overestimated. More than forty
million Americans have some kind of physical, sensory, cognitive, or
mental disability. Virtually every individual and every family in the
United States is touched at one time or another by the experience of
disability--their own or that of someone close to them. The ADA's
far-reaching provisions for employment, state and local government,
transportation, public accommodations, and telecommunications,
therefore, have the potential to benefit almost everyone.
AN OVERVIEW OF THE ADA
The ADA requires nondiscriminatory policies in institutions that
serve the public, whether publicly or privately owned. In each area,
it seeks to ensure that persons with disabilities are afforded the
same rights as other American citizens. The ADA contains five titles.
Title I. Equal Employment Opportunity for Individuals with Disabilities
This title is designed to remove barriers that would deny
qualified individuals with disabilities access to the same employment
opportunities and benefits available to others without disabilities.
Its provisions apply to employers with 25 or more employees
(effective July 26, 1992) and to those with 15 or more employees
(effective July 26, 1994).
Title II, Subpart C, of the ADA addresses employment
discrimination, but references Title I and Section 504 for specific
requirements concerning employment. However, the Rehabilitation Act
Amendments of 1992 amended Section 504 to incorporate the employment
standards of Title I. As a result, __all public school districts,
regardless of the number of employees, are subject to Title I
* Print Page 2
_standards. The employment provisions of the ADA are enforced
primarily by the Equal Employment Opportunity Commission (EEOC).
Note, however, that the Department of Education also investigates
some Title II employment complaints. (See Chapter Eight, _Compliance
_Procedures.)
Title II. Nondiscrimination on the Basis of Disability in State and
Local Government Services
This title prohibits discrimination on the basis of disability
by public entities. It is divided into two parts, the first of which
deals with state and local governments and the second with public
transportation. Provisions related to state and local governments
are similar to those previously set forth under Section 504 for
public and private entities that receive federal funding; Title II
extends that nondiscrimination mandate to _all public entities,
regardless of funding status. The U.S. Department of Education's (ED)
Office for Civil Rights (OCR) enforces Title II in public elementary
and secondary education systems and institutions, public institutions
of higher education and vocational education (other than schools of
medicine, dentistry, nursing, and other health-related schools), and
public libraries.
Title III. Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities
This title prohibits discrimination on the basis of disability
by private entities in places of public accommodation (such as
hotels, cafeterias, golf courses, private schools, day care centers,
health clubs and conference centers). Title III requires that all
_new places of public accommodation and commercial facilities be
designed and constructed so that they are readily accessible to, and
usable by, persons with disabilities. It also requires that private
entities that conduct examinations or courses for professional and
trade licensing or certification provide equal opportunity to persons
with disabilities.
Title IV. Telecommunications
This title requires telephone companies to have developed
interstate and intrastate telephone relay services in every state by
July 26, 1993. This third-party system allows people with speech and
hearing impairments who use TDDs to communicate with individuals who
do not have this equipment.
Title V. Miscellaneous Provisions
The final title contains a variety of provisions relating to the
ADA as a whole, including its relationship to other laws and its
impact on insurance providers and benefits. It also states that
individuals cannot be required to accept accommodations and services
* Print Page 3
against their will; clarifies the fact that states are not immune
from actions relating to the ADA; prohibits retaliation and coercion
against those exercising or seeking to exercise their rights under
the ADA; and summarizes remedies and procedures. It establishes the
role of federal agencies with respect to enforcement and technical
assistance related to the ADA and extends coverage to the U.S.
Congress. Where relevant to public entities, these provisions are
incorporated in the Title II regulation.
THE SCOPE OF TITLE II
With the passage of the ADA, people with disabilities are, for
the first time, assured of access to _all programs and services
provided by state and local government agencies. Previously, under
Section 504 of the Rehabilitation Act of 1973, as amended, only those
public entities that receive federal funding were explicitly
prohibited from discriminating on the basis of disability. But Title
II prohibits _all public entities--even those completely independent
from federal funding--from discriminating against people with
disabilities.
Title II is divided into two subtitles. This Guide focuses only
on Subtitle A, which is implemented by the Department of Justice's
Title II regulation at 28 C.F.R. Part 35. Subtitle B covers public
transportation and is implemented by the Department of
Transportation's regulation. Subtitle B provisions will not be
addressed here. The use of the term "Title II" throughout this Guide
actually refers only to Subtitle A.
28 C.F.R. 35.102 Application
(a) Except as provided in paragraph (b) of this section, this
part applies to all services, programs, and activities provided or
made available by public entities.
(b) To the extent that public transportation services, programs,
and activities of public entities are covered by Subtitle B of Title
II (42 U.S.C. 12141) of the ADA, they are not subject to the
requirements of this part.
The obligation to comply with Title II extends to all public
entities, including:
-- any state or local government;
-- any department, agency, special purpose district, or other
instrumentality of a state or local government; and
-- certain commuter authorities as well as AMTRAK.
All public school systems are required to comply with Title II
because they are considered "instrumentalities" of the state
government.
All programs, activities, and services of public school systems
must be in compliance with Title II. Examples of activities covered
include:
-- the operation of all services and programs offered by the
entity;
-- all aspects of the employment relationship; and
-- services carried out by contractors.
* Print Page 4
Title II covers, for example, any public entertainment or
lecture series your school system offers, after-school activities and
social events offered by the school system, parent-teacher meetings,
classroom activities, field trips or other special events, and all
services provided for students or staff. Services provided by any
private contractors on behalf of the school system must also comply
fully with relevant provisions of Title II.
TITLE II AND OTHER LAWS
Section 504 of the Rehabilitation Act of 1973, as amended,
prohibits discrimination on the basis of disability in any program or
activity of state or local governments that receive federal funds.
Title II of the ADA extends this prohibition to the full range of
state or local government services, programs, or activities
regardless of whether they receive any federal funding. With some
exceptions, Title II does not impose any major new requirements on
school districts. This is true because the requirements of Title II
and Section 504 are similar, and because virtually all school
districts receive federal assistance and have been required to comply
with Section 504 for many years. (ED's Section 504 regulation, which
is enforced by ED's OCR, applies to preschool, elementary, secondary,
post-secondary, vocational, and adult education programs and
activities, as well as other programs and activities that receive or
benefit from federal financial assistance.)
The ADA statute clearly specifies that unless Title II states
otherwise, Title II may not be interpreted to apply a lesser degree
of protection to individuals with disabilities than is provided under
Section 504. In the area of education, the federal government has
stated many of the nondiscrimination requirements related to
individuals with disabilities in more specific detail under Section
504 than under Title II. The reason for this difference is that the
regulation issued to implement Title II was written to cover _all
state and local government entities regardless of their function,
whereas the regulation issued under Section 504 in 1977 was written
to describe specific requirements applicable to public school
districts, as well as certain other types of recipients of federal
funds in the areas of education, health, and social services [34
C.F.R. Part 104; 45 C.F.R. Part 84]. Note, however, that if a rule
issued under Section 504 imposes a lesser standard than the ADA
statute or regulation, the language in the ADA statute or regulation
controls. The chapters that follow will not only point out any
differences between the requirements of Section 504 and Title II, but
also highlight the more specific requirements of Section 504.
28 C.F.R. 35.103 Relationship to Other Laws
(a) _Rule _of _Interpretation. Except as otherwise provided in
this part, this part shall not be construed to apply a lesser
standard than the standards applied under Title V of the
Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued
by Federal agencies pursuant to that title.
(b) _Other _laws. This part does not invalidate or limit the
remedies, rights, and procedures of any other Federal laws, or State
or local laws (including State common law) that provide greater or
equal protection for the rights of individuals with disabilities or
individuals associated with them.
The most important activity of any school district is providing
elementary and secondary education to students. A school district
must ensure that students with disabilities are not excluded from
participation in, or denied the benefits of, its
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services, programs, and activities. It must also ensure that they are
not subjected to discrimination by the school system [28 C.F.R.
35.130]. Equal educational opportunity to elementary- and
secondary-school-age individuals with disabilities is achieved
through the provision of a free appropriate public education (FAPE)
to each qualified student with a disability in a school system,
regardless of the nature or severity of the person's disability. The
requirements regarding the provision of FAPE are detailed in the
Section 504 regulation, but are incorporated in the general
nondiscrimination provisions of Title II [28 C.F.R. 35.130; 28
C.F.R. 35.103(a); (see 34 C.F.R. 104.31-104.37)].
Because of this specific responsibility shared by all public
school systems, in some cases it will be necessary to evaluate the
school district's responsibilities under Title II with respect to
individuals entitled to FAPE in a manner different from the
evaluation of Title II responsibilities with respect to other
individuals with disabilities (such as employees, parents of
students, and the general public). This approach, of course, is
consistent with Section 504, under which determinations regarding
nondiscrimination in providing FAPE to school-age children are based
on different factors than other types of determinations. Specific
requirements related to FAPE will be discussed further in the
chapters that follow.
Title II, like Section 504, requires covered entities to
evaluate current policies and practices. However, the ADA does not
require self-evaluations for all your school district's programs and
activities. If your school system completed a self-evaluation as part
of its obligations under Section 504, only programs not previously
reviewed, or changes in programs and functions, must be evaluated.
However, many Section 504 self-evaluations were conducted years ago;
actions taken to comply with Section 504 may not have been fully
implemented or may no longer be effective, and the scope of the
covered program or activity may have been more limited than
subsequently required by statute. Therefore, the U.S. Department of
Justice and the U.S. Department of Education strongly encourage
public school systems to conduct a comprehensive review of _all
current programs. For example, fourteen years ago computers and
computer technology would not have been a major part of most school
systems' educational services. Now, however, this technology is of
tremendous importance to most public schools and should be examined
afresh in light of the Title II requirements.
Similarly, the transition plan required by Title II must cover
structural changes to facilities to achieve program accessibility in
parts of a school system's operation not covered by the Section 504
transition plan. If there are structural or other changes identified
in your previous transition plan for Section 504 that have not been
completed, these changes should be included as priorities in the
Title II transition plan.
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Note also that the ADA does not in any way relieve public school
systems from complying with any other state, local, or federal laws
that bear on the rights of individuals with disabilities and that
provide protection at least equal to that given under the ADA.
THE BUILDING BLOCKS OF TITLE II
The regulation implementing Subtitle A of Title II is divided
into seven Subparts: (1) general, (2) general requirements, (3)
employment, (4) program accessibility, (5) communications, (6)
compliance procedures, and (7) designated agencies. The basic content
of each of these will be noted briefly below. Not all of the distinct
provisions of each section will be included in this brief overview,
however. For more detailed information, consult the chapter in which
that part is discussed (indicated at the end of each section
summary).
General (28 C.F.R. 35.101-35.107)
This Subpart provides basic background on the law's purpose, its
relationship to other laws, and key definitions essential to its
interpretation. It also presents the requirement that public entities
conduct a self-evaluation to determine whether they are in
compliance, provide notice regarding the rights and protections
afforded by Title II, and, if the entity employs over 50 persons,
designate a responsible employee to coordinate the entity's
compliance with Title II and establish a grievance procedure to
handle complaints.
This portion of the Title II regulation is addressed primarily
in this _Introduction (purpose, application, and relationship to
other laws); in __Chapter Two, Who is Protected Under Title _II
(definitions); and in __Chapter Three, Planning for _Compliance
(designation of responsible employee, notice, grievance procedures,
self-evaluation, and transition plan).
General Requirements (28 C.F.R. 35.130-35.135)
This Subpart of the Title II regulation addresses the basic
mandate of the ADA: that is, that no qualified individual with a
disability shall be excluded from participation in, or denied access
to, programs or activities; denied benefits or services; or be
subjected to discrimination by any public entity. Specifically, this
section discusses the general prohibitions against discrimination,
and provisions regarding the illegal use of drugs, smoking,
maintenance of accessible features, retaliation or coercion, and
personal devices and services.
Unlike Title II, the Section 504 regulation provides separate
coverage for preschool, elementary, secondary, and adult educa-
* Print Page 7
tion programs; post-secondary education programs; and health,
welfare, and other social service providers under separate subparts
of the Section 504 regulation. The general nondiscrimination
provisions under Title II are construed to cover discriminatory
conduct specifically prohibited under these subparts of the Section
504 regulation. Specific Section 504 requirements regarding
elementary and secondary education programs, which are addressed
throughout this Guide as they arise, should be kept in mind as you
review your school system's programs, policies, and practices.
General requirements are discussed in __Chapter Four, General
Nondiscrimination _Requirements.
Employment (28 C.F.R. 35.140)
Title II addresses employment discrimination, but references
Title I and Section 504 for specific requirements concerning
employment. As mentioned on [print] page 1, the Rehabilitation Act
Amendments of 1992 amended Section 504 to incorporate the employment
standards of Title I. Therefore, __all public school districts are
subject to Title I _standards.
The basic mandate of Title I is that an employer cannot
discriminate against qualified individuals with disabilities in its
employment policies and practices. For example, employers are
required to make reasonable accommodations for qualified applicants
and employees with disabilities upon their request, unless the
employer can prove that providing the accommodation would result in
an undue hardship. The Title I regulation prohibits discrimination in
all aspects of employment, including recruitment, advertising, the
application process, job classifications, position descriptions,
testing, interviewing, hiring, assignments, evaluation, discipline,
medical examinations, compensation, promotion, on-the-job training,
leave, tenure, seniority, lines of progression, benefits (such as
health insurance), social and recreational programs, layoff/recall,
and termination.
Because public school systems that receive federal funds have
previously had to comply with the old Section 504 employment
standards, it is important to note that there are a few differences
between Title I and Section 504 as it was interpreted prior to the
Rehabilitation Act Amendments of 1992. Title I contains several
provisions that were not previously included in the Section 504
regulation (e.g., provisions prohibiting discrimination on the basis
of relationship or association and provisions regarding employee
medical examinations and inquiries). Title I also provides several
new definitions that were not previously provided in the Section 504
regulation, but that are based on Section 504 case law (e.g.,
definitions of "essential functions" and "direct threat").
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__Chapter Five, Requirements for Employment Policies and
_Practices, provides a review of ADA employment requirements and
highlights significant differences between Title I requirements and
the employment standards of Section 504 prior to the Rehabilitation
Act Amendments of 1992.
Program Accessibility (28 C.F.R. 35.149-35.151)
This Subpart of the Title II regulation addresses the
requirement that public entities ensure that their programs and
activities are accessible to, and usable by, persons with
disabilities. The Title II regulation contains standards for existing
facilities, as well as for new construction and alterations of
facilities.
Although the general standards for accessibility under Title II
and Section 504 are similar, there are significant differences in
some areas that school districts need to consider as they conduct
their self-evaluation (e.g., relevant time frames for existing
facilities; actions resulting in a fundamental alteration of a
service, program, or activity, or undue financial or administrative
burdens; historic properties; transition plans; and new construction
or alterations). School districts should pay particular attention to
differences in relevant time frames for "existing" construction or
new construction.
__Chapter Six, Program _Accessibility, provides a review of the
Title II requirements regarding program accessibility, as well as a
discussion of the similarities and differences between Title II and
Section 504 concerning program accessibility.
Communications (28 C.F.R. 35.160-35.164)
This Subpart of the Title II regulation addresses the
requirement that public entities ensure that communications with
applicants, participants, and members of the public with disabilities
are as effective as communications with others. The Subpart addresses
the responsibility of a public entity to furnish auxiliary aids and
services. In addition, it sets forth requirements for providing TDDs,
telephone emergency services, and information and signage. While the
Section 504 regulation does contain a number of nondiscrimination
requirements that, taken as a whole, result in an obligation to
provide effective communication, the Title II regulation contains
specific requirements that are not provided in the Section 504
regulation (e.g., requirements for TDDs and telephone emergency
services).
__Chapter Seven, Requirements for Effective _Communication,
reviews Title II requirements for effective communication and
discusses differences between the requirements of Title II and
Section 504 with respect to communication.
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Compliance Procedures (28 C.F.R. 35.170-35.178)
This Subpart establishes the administrative procedures for
enforcement of Title II. It also states provisions related to
attorney's fees, alternative means of dispute resolution, the effect
of the unavailability of technical assistance, and state immunity.
Provisions of this Subpart of the Title II regulation are
discussed in __Chapter Eight, Compliance _Procedures.
Designated Agencies (28 C.F.R. 35.190)
This Subpart designates the federal agencies responsible for
investigation of Title II complaints, distributing enforcement
responsibilities for particular public entities among eight federal
agencies. As discussed on [print] page 2, the Department of Education
is designated to enforce Title II in public elementary and secondary
education systems and institutions, public institutions of higher
education and vocational education (other than schools of medicine,
dentistry, nursing, and other health-related schools, for which the
Department of Health and Human Services is responsible), and public
libraries. Complaints related to employment are referred to the Equal
Employment Opportunity Commission (EEOC) or are reviewed by the
Office for Civil Rights in the U.S. Department of Education.
Provisions of this Subpart of the Title II regulation are
discussed in __Chapter Eight, Compliance _Procedures.
* Print Pages 10-11
** CHAPTER TWO WHO IS PROTECTED UNDER TITLE II?
This chapter will examine the issue of who is entitled to
protection under Title II of the ADA. The regulation prohibits
discrimination against any "qualified individual with a disability."
Determining whether a particular individual is protected by Title II
begins with understanding what is considered a disability under Title
II (and what is not). Next, the chapter addresses the question, "Who
is a _qualified individual with a disability?" It then identifies
other persons covered by the ADA because of their association with
persons who have disabilities or because they have been retaliated
against for their participation in Title II activities. Finally, it
discusses circumstances that would exclude someone from coverage as a
person with a disability.
WHO IS A PERSON WITH A DISABILITY?
People commonly refer to disabilities or disabling conditions in
a broad sense. For example, poverty or lack of education may impose
real limitations on an individual's opportunities. Likewise, being
only five feet in height may prove to be an insurmountable barrier to
an individual whose ambition is to play professional basketball.
Although one might loosely characterize these conditions as
disabilities in relation to aspirations of the particular individual,
the disabilities covered by Title II are limited to those that meet
the ADA's legal definition--__those that place substantial
limitations on one or more of an individual's major life _activities.
A Three-Pronged Definition
The ADA uses a three-pronged definition of disability.
For the purposes of coverage under the ADA, a person with a
disability is defined as an individual who meets any of the three
conditions outlined in the statute cited on the right. Each
component of the definition is explained in the regulations. Note
that the ADA's definition of a person with a disability is
essentially the same as the definition of a person with a disability
under Section 504.
42 U.S.C. 12102(2)
The term _disability means, with respect to an individual--
(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
Persons with Physical or Mental Impairments
The first prong of the definition covers those persons who
currently have actual physical or mental impairments that
substantially limit one or more major life activities. The focus of
* Print Page 12
this part is on the individual, to determine if he or she has a
substantially limiting impairment.
__What is an _impairment? The phrase __physical or mental
_impairment has been defined by the provision of the regulation cited
on the left to include physiological conditions that affect body
systems as well as mental or psychological disorders. Title II
provides only representative examples of conditions, contagious and
noncontagious diseases, or infections that would constitute physical
or mental impairments; the list is not meant to be exhaustive. Some
examples provided include: epilepsy, muscular dystrophy, multiple
sclerosis, cancer, heart disease, diabetes, mental retardation,
emotional illness, specific learning disabilities, drug addiction,
HIV disease (symptomatic or asymptomatic), tuberculosis, alcoholism,
and orthopedic, visual, speech and hearing impairments.
__What is not an _impairment? Simple physical characteristics
such as left-handedness, skin color, or age, or uncomplicated
pregnancy do not constitute physical impairments and therefore cannot
be considered disabilities under Title II. Similarly, disadvantages
attributable to environmental, cultural, or economic factors are not
the type of impairments covered by Title II. The definition also does
not include common personality traits such as poor judgment or a
quick temper, where these are not symptoms of a mental or
psychological disorder. The ADA also excludes several other
conditions. These are discussed later in this chapter.
28 C.F.R. 35.104(1)(i)
The phrase __physical or mental _impairment means--
(A) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological, musculoskeletal, special sense
organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, hemic and lymphatic, skin and
endocrine;
(B) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
Examples: Are these conditions impairments?
1. Jennifer is a junior high school math teacher in the third
trimester of her pregnancy. Her pregnancy has proceeded well, and she
has developed no complications. Jennifer does not have an impairment.
An uncomplicated pregnancy, by itself, is not an impairment.
2. Mark, the chair of the history department at his high
school, is frequently impatient with his colleagues. He loses his
temper with other employees as well as students, sometimes shouting
at his subordinates or angrily questioning his principal's decisions.
His colleagues think he is rude and arrogant, and they find it
difficult to work with him. On the basis of the information provided,
Mark does not have an impairment. Personality traits such as
impatience, quick temper, and arrogance are not impairments in and of
themselves.
3. Sophia, a high school senior, is the oldest of six
children. Her mother, a single parent, cleans houses for a living,
and barely makes enough money to feed and clothe the family. Sophia
wants to go to college, and in order to do
* Print Page 13
so she works long hours after school and on weekends at a fast-food
restaurant to make money. Sophia's heavy work schedule interferes
with her studies, but she feels she has no choice. Although Sophia's
economic situation does put her at a disadvantage, it is not a mental
or physical impairment.
__Substantial limitation of major life _activities. Another key
concept under the first prong of the definition is that an impairment
must substantially limit a major life activity to constitute a
disability. The phrase _major _life _activities refers to functions
such as caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, working, and learning [28 C.F.R.
35.104]. Note that __learning is considered a major life _activity.
If a student's impairment substantially limits his or her ability to
learn, then that student has a disability under Title II of the ADA.
28 C.F.R. 35.104(2)
The phrase _major _life _activities means functions such as
caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.
The above list of major life activities is not meant to be
exhaustive. Specific activities that are equivalent to those listed
in terms of their impact on, or importance to, an individual's life
also may be considered major life activities. For example, other
major life activities would include sitting, lifting, and reaching.
Generally, there is little controversy about what constitutes a major
life activity. They are understood to include "those basic activities
that the average person in the general population can perform with
little or no difficulty" [Appendix to 29 C.F.R. Part 1630, at 395
(1994)].
In contrast, determining whether or not an impairment
_substantially _limits a major life activity is more difficult and
must be done on an individual basis. To be considered a disability,
an impairment must significantly restrict the performance of a major
life activity in comparison to most people in terms of:
-- the _conditions under which the activity is performed;
-- the _manner in which the activity is performed; or
-- the _duration of performance possible for the individual.
The finding that an impairment poses a substantial limitation is
not assumed simply because an impairment exists; it is shown by
determining the impact of that impairment on a particular individual.
The factors that are considered in determining whether a person's
impairment substantially limits a major life activity are:
-- its nature and severity;
-- how long it will last or is expected to last; and
-- its permanent or long-term impact or expected impact.
In determining whether an impairment substantially limits a
major life activity, one should _not take into account any corrective
devices or reasonable accommodations that might reduce the
* Print Page 14
limiting effect of the impairment. For instance, a person with a
hearing impairment that severely limits his or her hearing is an
individual with a disability, even if that person's hearing
significantly improves when he or she wears a hearing aid.
Examples: Do these impairments substantially limit a major life activity?
1. Li is a third-grade student who had behavior problems and
was a low achiever in first and second grades. In her current class,
Li is easily distracted, frequently inattentive, and often
disruptive. She generally fails to follow directions, and she has
difficulty focusing on and completing tasks. Her academic performance
overall is below grade level, and she is close to failing reading and
math. Li's teacher referred her for evaluation by the school
district's placement team. Li was diagnosed as having attention
deficit disorder (ADD), which has an adverse impact on her ability to
learn. Li has a disability under the ADA.
2. Greg is a third-grader who was generally well behaved and
a good student in first and second grades. Although he often
daydreams, shifts from one activity to another, and occasionally
loses his work, Greg still manages to do well on his in-class and
homework assignments. Because of his daydreaming and inattentiveness,
his mother decided to have him evaluated by a private physician. The
physician noted that Greg displays some behaviors similar to those of
children with ADD, but on a more limited and less severe basis.
However, Greg's academic performance seems not to be significantly
affected. Even if Greg does have ADD, he does not have a disability
under the ADA, since his ability to learn is not substantially
limited. Thus, there is insufficient justification for evaluating
Greg for special education and related services.
3. Juan was injured in a traffic accident. His legs are
permanently paralyzed. Juan is considered to be a person with a
disability because he has a physical impairment that substantially
limits the major life activity of walking.
4. Tom, a seventh-grade math teacher, has an allergy to
certain tree pollens that makes him break out in hives if he is
outside during certain times of the year. The hives are quite
uncomfortable and make it hard for Tom to enjoy outdoor activities
during pollen season. Although the hives are annoying and limit
Tom's enjoyment of certain activities, Tom's allergy does not
substantially limit any of his major life activities.
* Print Page 15
5. Mei, a first-grade student, has severe asthma. During an
asthma attack, Mei has great difficulty in breathing. She uses an
inhalation spray and needs inhalation therapy three times a day. Mei
has a disability because her asthma substantially limits her ability
to breathe.
For the purpose of employment, it is critical to give special
attention to what it means to be __substantially limited in the major
life activity of _working. This phrase is understood to mean
"significantly restricted in the ability to perform either a class of
jobs or a broad range of jobs in various classes as compared to the
average person having comparable training, skills, and abilities" [29
C.F.R. 1630.2(j)(3)(i)]. It does not refer to the inability to
perform only a particular job or a very specialized job, nor does it
require the complete inability to work.
Factors to be considered in determining whether an employee or
applicant is substantially limited in the major life activity of
working include:
1. the type of job from which the individual has been
disqualified because of the impairment;
2. the geographical area in which the person may reasonably
be expected to find a job;
3. the number and types of jobs using training, knowledge,
skills, or abilities similar to those required for the job from which
the individual has been disqualified (the _class _of _jobs) within
the geographical area; and
4. the number and types of jobs in the area that do _not
involve similar training, knowledge, skills, or abilities from which
the individual also is disqualified because of the impairment. (This
factor spans a __broad range of jobs in various _classes) [29 C.F.R.
1630.2(j)(3)(ii)].
If an individual is substantially limited in any _other major
life activity (e.g., walking or seeing) it is not necessary to
determine whether the person is limited in the major life activity of
working; he or she is already protected by the ADA as a person with a
disability. Thus, an elementary school teacher who is blind is an
individual with a disability because the blindness substantially
limits his or her ability to see. For purposes of determining whether
that teacher is an individual with a disability, it is not necessary
to determine if the blindness substantially limits that teacher's
ability to work.
Note that a person who is substantially limited in his or her
ability to work must still be a "_qualified individual with a
disability" in order to be covered by the ADA. (See Chapter Five,
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__Requirements for Employment Policies and _Practices, for a more
detailed discussion of employment discrimination.)
Frequently, school systems must determine whether an individual
with a temporary impairment is afforded the protections of Title II.
While the definition of disability does not exclude temporary
impairments, temporary impairments must be assessed on a case-by-case
basis to determine whether the impairment substantially limits a
major life activity. Therefore, the key factors to be considered in
determining whether the impairment satisfies the first prong of the
definition are, as discussed on [print] page 13, the _extent of the
impairment, the _duration (or expected duration) of the impairment,
and the _impact of the impairment.
Examples: Should these temporary impairments be considered a disability?
1. Nancy is a high school drama teacher who has laryngitis.
It is very painful for her to speak, and she cannot talk above a
whisper when she does speak. Her physician has prescribed medication
for her, has instructed her to drink plenty of fluids, and has
advised her to stay home from work. She should be fully recovered
within three weeks. Nancy does not have a disability. Although the
laryngitis significantly restricts her ability to speak, it does so
only on a very short-term basis and has no long-lasting or permanent
effects on Nancy.
2. Neil, an administrative assistant for a city school
system, was in a skiing accident. He had a concussion, broke over 30
facial bones, and is temporarily paralyzed on his left side. Neil's
injuries will require extensive long-term rehabilitation. His
prognosis for recovery is very good. Although Neil is expected to
fully recover, the duration of his condition is long term, or at
least indefinite and unknowable. Thus, his condition is
substantially limiting in severity and would constitute a disability
under the law.
3. Abdul, a high school teacher, broke his leg in a skiing
accident similar to Neil's. He sustained a compound fracture and must
undergo surgery to set the bone. He is hospitalized for several days
and will have a cast on his leg for an additional five weeks. During
these weeks, Abdul must use crutches. Abdul's physician directed him
to use crutches for another week after the cast is removed, after
which time he will be able to walk unaided. His prognosis for a full
recovery is excellent. Abdul does not have an impairment that
substantially limits his major life activities. Although his leg
injury has restricted his ability to walk, it has done so for a
* Print Page 17
relatively short time (six weeks). The injury is a transitory
impairment that has no long-lasting or permanent effects.
4. Lisa and Beatrice, both school juniors, were in a car
accident in which each sustained a head injury. Lisa felt dizzy and
disoriented immediately after the accident and was hospitalized
overnight for observation. Lisa's doctor told her that x-rays
revealed a slight concussion but no permanent injury. Lisa was
released from the hospital the next day and has experienced no side
effects from the injury. Lisa's head injury was not substantially
limiting. The impairment lasted for only a brief time and had no
permanent or long-term impact on Lisa's major life activities. Lisa
does not, therefore, have a disability. In contrast, Beatrice
sustained a serious concussion that resulted in long-term brain
damage. Because of this, Beatrice has a short-term memory deficit,
has trouble processing information, cannot concentrate, and has great
difficulty learning. Unlike Lisa, Beatrice's concussion resulted in
long-term, significant restrictions on her major life activities.
Therefore, Beatrice has a disability.
Persons With Records of Physical or Mental Impairments
The second prong of the definition of disability under the ADA
protects people who have a history or record of an impairment that
substantially limits a major life activity. It also includes persons
who have been misclassified as having an impairment.
Frequently, persons who fall under the first group are persons
who have histories of mental or emotional illness, drug addiction,
alcoholism, heart disease, or cancer. Persons who have been
erroneously diagnosed as mentally retarded or mentally ill are also
examples of persons protected by the second prong of the definition.
28 C.F.R. 35.104(3)
The phrase __has a record of _impairment means has a history of,
or has been misclassified as having, a mental or physical impairment
that substantially limits one or more major life activities.
Persons Regarded as Having a Disability
The third prong of the definition of disability under the ADA
protects people who are not, in fact, substantially limited in any
major life activity but are nevertheless perceived by others as
having a disability, sometimes because of myth, fear, or stereotype.
This covers people who are falsely thought to have an impairment that
substantially limits a major life activity. It also includes people
who have an impairment that may or may not _in _itself actually limit
a major life activity; that is, the impairment may have a limiting
effect only because others falsely believe it does or take actions
that restrict the individual because of such erroneous beliefs.
28 C.F.R. 35.104(4)
The phrase __is regarded as having an _impairment means--
(i) Has a physical or mental impairment that does not
substantially limit major life activities, but that is treated by a
public entity as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially
limits major life activities only as a result of the attitudes of
others toward such impairment; or
(iii) Is treated by a public entity as having such an
impairment.
* Print Page 18
The second and third prongs of the definition are meant to cover
situations where individuals never had or do not currently have
disabilities, but are treated by others as if they did. For instance,
a person with severe facial scarring might be denied a job because
she or he is regarded as an individual with a disability. A person
with a history of heart disease might be denied a promotion because
of that "record of" a disability. These persons do not, in fact, have
disabilities, but have been treated by others as if they did. It is
mistaken perception or a record of a disability that entitles a
person to protection against discrimination under the law.
Examples: Are these persons protected by the ADA?
1. Demika, a college graduate with a strong record, was
hospitalized during her junior year in college for a mental illness.
She has fully recovered now, and is applying for a job as a teacher.
Demika's history of mental illness is a record of a disability under
the second prong of the definition, and the protections of the ADA
are triggered if a school system denies her a job solely on the basis
of her history of mental illness.
2. Terry is in the second grade. Her mother was recently
diagnosed as HIV-positive, and the school principal mistakenly thinks
Terry is also HIV-positive. In fact, Terry has tested negative for
the virus. The principal takes steps to separate Terry from the other
children, such as making her eat lunch alone. Although Terry has no
actual disability, she is protected under the third prong of the
definition, since she is regarded as having a disability.
3. Chris, a fourth-grade teacher, participated in a gay
rights march in Washington. The principal learns of this, and assumes
Chris is gay and that he must have AIDS. The principal tries to fire
Chris. Chris, who does not have AIDS, is nonetheless protected under
the third prong of the definition, since he is regarded as having a
disability.
4. Brian, a third-grade student, was born with one leg
shorter than the other and walks with a limp. Although the limp is a
physical impairment, it does not substantially limit his ability to
walk. School personnel, however, regard Brian's limp as a disability
and have restricted his participation in physical education and
sports out of concern he will be injured. Brian is covered by the
third prong of the definition of disability.
* Print Page 19
Use of the Second and Third Prongs
The use of the second and third prongs of the definition of
individuals with disabilities arises often in the area of employment.
For example, someone with a history of mental illness but no current
symptoms might be denied a teaching job based solely on that record
of past disability. This action would not be permissible under the
ADA.
The second and third prongs also apply to discrimination against
students. Elementary and secondary students may be falsely perceived
to have a disability or may experience discrimination because of a
record of a past disability. For instance, the second-grade student
Terry, in the previous set of examples, was falsely perceived as
being HIV-positive and was forced to eat her lunch alone. The general
nondiscrimination provisions of the ADA apply to students who are
regarded as having a disability or who have a history of a
disability.
However, the second and third prongs of the definition _cannot
be used to determine whether an elementary or secondary student needs
either special education and/or related services or regular education
with supplementary services. (See Chapter Four, __General
_Nondiscrimination _Requirements, for a discussion of a school
district's obligation under Title II of the ADA to provide a free
appropriate public education (FAPE) to students with disabilities.) A
student with a record of a past disability who does not have a
current disability, or a student who is falsely believed to have a
current disability, does not actually have a substantially limiting
mental or physical impairment. Consequently, such a student has no
need for different educational treatment because of a disability.
Thus, a student who falls under the second or third prong of the
definition, and who does not also fall under the first prong of the
definition, is not entitled either to special education and/or
related services or to regular education with supplementary services.
This misunderstanding of the purpose and intent of the second
and third prongs of the definition has caused some confusion on the
part of both parents and schools as to when a child is entitled to
the protections of the law with respect to triggering evaluation and
placement responsibilities. This confusion frequently arises with
respect to students who have attention deficit disorder. The
discussion below addresses this confusion.
Many school districts have recognized that some children with
ADD are eligible for an evaluation and/or related aids and services
under Title II and Section 504 because these children fall under the
first prong of the definition of disability--that is, they actually
have a mental or physical impairment that substantially limits their
ability to learn. For example, Li, the third-grade student in an
example cited earlier in this chapter (see [print] page 14)
* Print Page 20
is a child with ADD who falls under the first prong of the
definition. (See Chapter Four, __General _Nondiscrimination
_Requirements, for a discussion of evaluation and related aids and
services.)
In some instances, however, school districts have
inappropriately looked to the second and third prongs of the
definition of disability as the basis for this eligibility. For
example, some education officials and parents have the misperception
that if the child "has a record of" an impairment (an evaluation of
ADD by a private consultant, for example) or "is regarded" by someone
(the child's doctor or the child's mother, for example) as having a
disability, that automatically triggers the requirement for an
evaluation and/or related aids and services.
__The fact that someone believes that a child has a disability
does not mean that the child is entitled to an evaluation and/or
related aids and _services. In such a case, the proper inquiry by the
school district receiving this information is whether or not there is
sufficient reason to believe that this child, because of a
disability, may need special education or related aids and services,
and thus would need to be evaluated. Therefore, in the case of Greg,
the third-grade student whose doctor diagnosed ADD (see [print] page
14), the school district need not automatically evaluate Greg.
Rather, the school district must determine whether there is
sufficient reason to believe that Greg needs special education or
related aids and services. If the school district determines that
Greg does not need to be evaluated, his parents may request a due
process hearing with regard to that determination. (See Chapter
Four, _General _Nondiscrimination _Requirements.)
WHAT DOES IT MEAN TO BE QUALIFIED?
Protection under Title II is specifically afforded to _qualified
individuals with disabilities. Not every person with a disability
(someone who falls within the three-prong definition) is also
qualified. However, as explained below, nearly all elementary and
secondary students with disabilities are "qualified individuals with
disabilities" for the purpose of receiving a free appropriate public
education.
The definition of a qualified individual with a disability takes
two forms, depending on the nature of the Title II activity involved.
These include:
-- services and programs; and
-- employment.
Each of these areas is discussed below.
* Print Page 21
Services and Programs
For purposes of determining whether an individual is eligible to
participate in the services and programs offered by a public entity,
a person is considered to be qualified if the individual meets the
essential eligibility requirements needed to receive those services
or participate in those programs. It does not matter whether the
person meets these requirements with or without reasonable
modifications to rules, policies, or practices or with or without the
removal of architectural, communication, or transportation barriers.
The determination is also made without regard to whether auxiliary
aids and services must be provided [28 C.F.R. 35.104].
28 C.F.R. 35.104
__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.
When determining whether a student with a disability meets the
essential eligibility requirements needed to receive the services of,
and/or participate in, an elementary and secondary education program,
public school districts must use the more specific definition
established under Section 504. This is because, as explained in
Chapter One, Title II incorporates the more specific standards of
Section 504.
Section 504 uses specific and separate definitions of what
"qualified" means in the context of employment, in the context of
elementary and secondary education, and in the context of
post-secondary education. Under Section 504, a qualified student with
a disability, with regard to elementary and secondary educational
services, is defined as:
-- a person with a disability who is of an age during which
nondisabled persons are provided education; or
-- a person with a disability who is of any age during which
it is mandatory under state law to provide elementary or secondary
educational services to persons with disabilities or to whom a state
is required to provide a free appropriate public education under the
Individuals with Disabilities Education Act (IDEA).
Thus, under both Section 504 and Title II, a student with a
disability is qualified with respect to elementary and secondary
education services and programs if the student is of a certain age.
There is no need to look any further or to try to determine if the
student meets essential eligibility requirements in order to receive
the services or participate in the programs. Age alone makes the
student qualified.
Note that the Section 504 definition of "qualified" discussed
above mentions the IDEA, which provides financial aid to states to
assist in their efforts to ensure appropriate educational services
for children with disabilities. There are some differences between
the IDEA on one hand and Section 504 and Title II on
* Print Page 22
the other. For example, Title II and Section 504 use the
three-pronged definition of disability spelled out earlier in this
chapter. The IDEA, however, applies to students who have one of the
specific physical, mental, emotional, or sensory impairments listed
as the thirteen recognized disability categories under the IDEA and
who have been found to need special education and related services.
This difference in definition means that there may be students who
qualify for regular or special education and related aids and
services under Section 504/Title II but who do not have one of the
thirteen disabilities recognized by the IDEA.
This Guide will not address in more detail the differences
between the IDEA and Section 504/Title II. For more information on
the IDEA, contact the Office of Special Education and Rehabilitative
Services in the United States Department of Education. (See
_Resources.)
In summary, then, for purposes of Title II of the ADA, any
student with a disability who is of the appropriate age is qualified
to receive the services of, and participate in, the district's
elementary and secondary education program.
Example: Is this child a qualified individual with a disability?
Vincent is a twelve-year-old boy with severe mental retardation.
His physical impairment substantially limits his ability to learn.
The law in the state in which Vincent lives requires that children
between the ages of six and sixteen attend school.
Vincent is a qualified individual with a disability, since he
has a disability and he is of an age during which nondisabled persons
are provided education. As a qualified individual with a disability,
Vincent is entitled to a free appropriate public education.
It is also important to note that persons invited to attend
school events, and persons attending school events open to the
public, are qualified individuals with disabilities and are covered
by the ADA. This means that when schools hold parent-teacher
conferences, school plays, athletic events, graduation ceremonies, or
other events, parents and other associates of students involved in
these activities who have disabilities are entitled to attend these
events, and these events must be accessible to them. Public school
systems must ensure program accessibility for these individuals with
disabilities and must provide appropriate auxiliary aids and services
whenever necessary to ensure effective communication. (See Chapter
Six, _Program _Accessibility, and Chapter Seven, __Requirements for
Effective _Communication, for a discussion of these issues.)
Similarly, events open to the general public must be accessible to
members of the general public who have disabilities and wish to
attend the events.
* Print Page 23
Example: Is this parent a qualified individual with a disability?
Jacob's son Moshe is in the sixth grade, and Moshe's teacher has
scheduled a parent-teacher conference with Jacob at the end of the
month. Jacob, who is deaf, informs the teacher that he will need an
interpreter to participate in the conference. The school district
must provide an interpreter or an equally effective means of
communication for the parent-teacher conference.
Employment
For the purposes of employment, an individual is considered to
be qualified if the person meets the job-related requirements for a
job and is able to perform its essential functions with or without
reasonable accommodations [29 C.F.R. 1630.2(m).] (For more
information on the employment of qualified individuals with
disabilities, see Chapter Five, __Requirements for Employment
Policies and _Practices.)
Example: Is this employee a qualified individual with a disability?
Minh, a school principal, is blind. She has the graduate degrees
and work experience required for her job. With reasonable
accommodation, such as Brailled materials, she is able to perform the
essential functions of her job. Minh's blindness substantially limits
her sight and therefore is a disability. Minh is a qualified
individual with a disability because she meets the job-related
requirements for her job and is able to perform its essential
functions with reasonable accommodation.
ASSOCIATIONAL DISCRIMINATION
Title II also extends its protections to people who do not have
disabilities themselves but are discriminated against on the basis of
their association with a person with a disability. The association
can be with family members, friends, or any other person or entity
[28 C.F.R. 35.130(g); 29 C.F.R. 1630.8].
28 C.F.R. 35.130(g) A public entity shall not exclude or
otherwise deny equal services, programs, or activities to an
individual or entity because of the known disability of an individual
with whom the individual or entity is known to have a relationship or
association.
Examples: Is this discrimination on the basis of association?
1. A school district has a policy of allowing local
neighborhood theater groups to use the high school auditorium during
the summer. District officials learn that one of the members of a
particular theater group has AIDS. Based on this information, they
refuse to let any members of the group use the school's facilities.
All of the
* Print Page 24
members of the theater group are entitled to protection under the
ADA. The members of the group who do not actually have AIDS
themselves are covered because of their association with the
individual with AIDS.
2. Maria, a single parent, is denied a secretarial position
at a public school administrative office because the school
superintendent is aware that she has a child with cerebral palsy. The
superintendent is concerned that her attendance will be unreliable
because of the needs of her child. Maria is protected under the ADA.
A person who experiences associational discrimination has a
right to relief under the ADA, but is not, like persons who
themselves have disabilities, entitled to request reasonable
accommodations in employment. In this case, Maria would not be
entitled under the ADA to alter her work hours or performance to
enable her to care for her child [Appendix to 29 C.F.R. Part 1630, at
406 (1994)].
RETALIATION OR COERCION
A school district may not retaliate against or coerce any
individual because that individual took action to oppose any act or
practice prohibited by Title II, or because that individual assisted
or encouraged others in exercising their rights under Title II.
Prohibited actions include threats, intimidation, harassment, or
interference. With respect to investigations, proceedings, or
hearings under the ADA, the protection against retaliation applies to
individuals who file complaints as well as to those who testify or
otherwise assist in connection with the investigation, proceeding, or
hearing [ 28 C.F.R. 35.134; 29 C.F.R. 1630.12].
28 C.F.R. 35.134 Retaliation or coercion.
(a) No private or public entity shall discriminate against any
individual because that individual has opposed any act or practice
made unlawful by this part, or because that individual made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under the Act or this part.
(b) No private or public entity shall coerce, intimidate,
threaten, or interfere with any individual in the exercise or
enjoyment of, or on an account of his or her having exercised or
enjoyed, or on account of his or her having aided or encouraged any
other individual in the exercise or enjoyment of, any right granted
or protected by the Act or this part.
Example: Is this teacher's action retaliation?
A student with asthma testified at a grievance hearing that the
coach of the track team pressured her to drop off the team because of
her disability. Two of the student's teammates who do not have a
disability testified at the grievance hearing on behalf of the
student with asthma. The track coach was also the algebra teacher for
these three students. After the grievance hearing, in his capacity
as algebra teacher, the coach/teacher informed the three students
that extra problems they had submitted for extra credit were not
submitted in time. However, other students in the same class
submitted, and received extra credit for, extra problems that were
submitted even later. The evidence suggests that the teacher has
retaliated against the students in violation of Title II.
* Print Page 25
Regardless of the outcome of a grievance hearing, Title II
protects from retaliation both the individual with a disability who
filed a grievance to protect his or her rights and any witnesses who
participated in the grievance hearing on his or her behalf. The
school district is responsible under Title II for ensuring that such
individuals are not retaliated against, and, in the example above,
for remedying fully the retaliatory actions that were taken against
the three individuals.
EXCLUSIONS FROM ADA PROTECTION
A Direct Threat to Health or Safety
One factor to be considered in determining whether a person is a
qualified individual with a disability is the health or safety of
others. Under the ADA, if an individual with a disability poses a
_direct _threat to the health or safety of others, then that person
is not a qualified individual with a disability. Such a person has
not met an essential eligibility requirement for the receipt of
services or participation in programs or activities of a public
entity.
The concept of direct threat to health or safety is more
complicated in the context of elementary and secondary education,
since all students with disabilities are qualified to receive
educational services if they are of a certain age. If a student's
threatening actions are a behavioral manifestation of a disability,
that student is still qualified to receive educational services, and
the school district may not simply refuse to educate the student.
However, the school district may decide that the student who poses a
direct threat to the health or safety of others needs a more
restrictive placement. The school district's decision is subject to
the evaluation and placement requirements outlined in Chapter Four,
_General _Nondiscrimination _Requirements.
In the employment context, the employer may raise concerns about
direct threats to the health or safety of the individual with a
disability, as well as to the health or safety of others, as a
defense to a charge of discrimination [29 C.F.R. 1630.15(b)(2)].
(See the discussion in Chapter Five, __Requirements for Employment
Practices and _Policies, for more information.)
The determination that an individual with a disability poses a
direct threat to the health or safety of the individual or of others
may not be based on stereotypes. The decision must be based on an
individualized assessment of the person's present condition, not on
speculation about any future risk. It must also be based on
reasonable judgment founded on medical evidence or on the best
available objective evidence. Factors to be considered in determining
whether a particular individual poses a direct threat to health and
safety include:
* Print Page 26
-- the duration, nature, and severity of the potential harm;
-- the likelihood the potential injury will occur;
-- the imminence of the potential harm; and
-- whether a reasonable accommodation (in an employment
context), or reasonable modification in policies, practices, or
procedures, or the provision of auxiliary aids and services, will
mitigate or eliminate the risk.
Examples: Do these individuals pose a "direct threat to health and
safety"?
1. Satchan, who has limited hearing and uses a hearing aid,
has applied to be a bus driver. Without reviewing any of Satchan's
medical records, the school district decides not to hire Satchan
because of his hearing disability, reasoning that Satchan's hearing
impairment would interfere with his ability to safely drive the bus
and thus would pose a direct threat to his own safety and the safety
of the school children on the bus. In fact, the medical records show
that Satchan's hearing, with the hearing aid, is quite good and would
_not interfere with his ability to drive the bus safely.
Furthermore, in a previous job as a bus driver for another school
district, Satchan always carried a spare hearing aid. Thus, the
likelihood that he would be forced to drive without a hearing aid as
a result of technical failure of an aid is remote. Satchan would not
pose a direct threat to the health or safety of himself or others by
driving the bus. The school district's actions violate the ADA.
2. Abby is in the seventh grade. She has been diagnosed as
having a multiple personality disorder. One of her personalities has
violent tendencies. While in this particular personality, Abby
threatened her teacher and classmates with a sharp knife being used
for a crafts project. Abby's actions pose a direct threat to the
safety of others, since the incident that has already occurred
suggests serious harm could well occur. It is not practical to
remove such harmful objects as scissors from her reach at all times.
Nevertheless, Abby is still qualified to receive educational
services, since the threatening actions were a behavioral
manifestation of Abby's disability. The school district must still
provide Abby with FAPE. However, the school district need not keep
Abby in the same classroom if a more restrictive placement is
appropriate and satisfies the evaluation and placement requirements
outlined in Chapter Four, _General _Nondiscrimination _Requirements.
* Print Page 27
Conditions Not Considered Disabilities
Title II explicitly excludes the following conditions from the
term disability: transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders not resulting
from physical impairments, other sexual behavior disorders,
compulsive gambling, kleptomania, pyromania, and psychoactive
substance use disorders resulting from the current illegal use of
drugs. Moreover, the phrase "physical or mental impairment" does not
include homosexuality or bisexuality; those orientations are not
considered disabilities under the ADA [28 C.F.R. 35.104].
Individuals with the above-referenced conditions or orientations
are not entitled to protection under the ADA based solely on these
conditions. However, where these individuals also have physical or
mental conditions that do constitute disabilities under the ADA, they
may not be discriminated against on the basis of the covered
disability. Furthermore, they would be protected under the ADA if
they were discriminated against on the basis of their association
with a person with a disability.
Examples: Are these individuals included under the ADA's definition
of disability?
1. Sandra is a sixth-grade student who recently enrolled in a
new school. Since she has been in the school, Sandra has been caught
stealing many articles of clothing from her classmates and equipment
in her classroom. She is diagnosed as having kleptomania.
Kleptomania is not a disability under the ADA.
2. Ken, a high school sophomore, has made a series of
obscene, threatening phone calls to female students at the school.
School officials discover this and suspend Ken for three weeks. Ken
claims that his behavior is attributable to a sexual behavior
disorder. Ken is not entitled to protection under the ADA because the
school district's actions were not taken on the basis of a covered
disability.
Illegal Use of Drugs Not Protected
Although an individual addicted to drugs may be an individual
with a disability, persons who are _currently engaging in the illegal
use of drugs are not protected by the ADA. Thus, a school district
may withhold services or benefits from a person because of his or her
current illegal use of drugs. By contrast, a person with a history of
drug use who has been successfully rehabilitated, or someone who is
participating in a drug rehabilitation program and is _not currently
using drugs illegally, is protected.
28 C.F.R. 35.131 Illegal use of drugs.
(a) _General. (1) Except as provided in paragraph (b) of this
section, this part does not prohibit discrimination against an
individual based on that individual's current illegal use of drugs.
(2) A public entity shall not discriminate on the basis of
illegal use of drugs against an individual who is not engaging in
current illegal use of drugs and who--
(i) Has successfully completed a supervised drug rehabilitation
program or has otherwise been rehabilitated successfully;
(ii) Is participating in a supervised rehabilitation program;
or
(iii) Is erroneously regarded as engaging in such use.
* Print Page 28
Title II distinguishes between the illegal and legal use of
drugs. The term "illegal use of drugs" refers to drugs whose
possession or distribution is unlawful under the Controlled
Substances Act. It does not include the use of a drug taken under
supervision of a physician or other licensed health care
professional, and other uses allowed by law are protected. However,
unlawful use of prescription controlled substances is considered
illegal use of drugs [28 C.F.R. 35.104; 28 C.F.R. 35.131].
Examples: Are these individuals excluded from ADA protection
because of current illegal drug use?
1. Jerry is a sophomore in high school. The school crossing
guard sees Jerry snorting cocaine in the school's parking lot and
reports Jerry to the principal. Jerry is automatically suspended from
school, consistent with the school's discipline policy. Jerry's
current use of cocaine means he is not a qualified individual with a
disability under Title II, even if he is addicted to cocaine.
2. J.J. is a high school chemistry teacher. The principal
walks into chemistry lab late in the afternoon and discovers J.J.
smoking crack cocaine. Although individuals using crack cocaine may
well have a drug addiction, J.J.'s current use of the drug means he
is not considered an individual with a disability under Title _II.
It is also important to note that the ADA amended the
Rehabilitation Act of 1973, including Section 504, to incorporate the
ADA provisions regarding "current use of illegal drugs." The ADA also
amended the Rehabilitation Act to allow school districts to take
disciplinary action pertaining to the use or possession of illegal
drugs or alcohol against any student with a disability who is
currently engaging in the illegal use of drugs or in the use of
alcohol, to the same extent that such disciplinary action is taken
against nondisabled students. Furthermore, the due process procedures
described in Section 504 do not apply to such disciplinary actions.
(See Chapter Four, _General _Nondiscrimination _Provisions.)
Example: Does this disciplinary action violate the ADA?
Olga, Christine, and Lina are all juniors in high school. Olga
has a drug addiction, Christine has a learning disability, and Lina
has no disabilities. A hall monitor finds Olga, Christine, and Lina
in the bathroom, smoking marijuana. The principal suspends all three
students. The principal's actions do not violate either the ADA or
Section 504.
Note, however, that if Christine is eligible for services under
the Individuals with Disabilities Education Act (IDEA) because of her
learning disability (see [print] pages 21-22), she could
* Print Page 29
be suspended only if doing so would be permissible under the
requirements for student discipline that are applicable to
IDEA-eligible students. In addition, under the IDEA, educational
services must continue during the period of disciplinary removal for
IDEA-eligible students.
Use of Alcohol
Alcoholism can be a disability covered by the ADA. If a person's
alcoholism substantially limits a major life activity, that person
has a disability under the ADA. Title II does not specifically
address the issue of alcoholism in students. As noted above, though,
the ADA statute did amend Section 504 of the Rehabilitation Act to
allow local education agencies to discipline students with
disabilities for the use of alcohol to the same extent that students
without disabilities who use alcohol are disciplined. Employers may
prohibit the use of alcohol by all employees at the workplace and may
hold an alcoholic employee to the same performance and conduct
standards that apply to all employees [29 C.F.R. 1630.16(b)].
Examples: Can these alcoholics be disciplined under the ADA?
1. Howard, a high school teacher, is an alcoholic. Howard's
job performance has been dismal for the last two months. He has
repeatedly arrived late to work, has failed to grade students'
papers, has lost two sets of student papers, and has been incoherent
in several classes. The school starts disciplinary proceedings
against Howard. Even though Howard's poor job performance is directly
related to his alcoholism, the school may discipline Howard to the
extent it would discipline any employee for a similar job
performance.
2. Rachel, a high school senior, has been diagnosed as an
alcoholic by both a physician and a counselor. However, Rachel and
her parents have refused to admit that a problem exists. Her
alcoholism has resulted in serious problems at school and she has
been warned that if she arrives drunk again she will be suspended.
Today Rachel arrived late for school, slept through her morning
classes, and was unable to respond coherently to questions. Her
breath smells strongly of alcohol. The school is justified in
suspending Rachel for using alcohol; she may be disciplined to the
same extent that students who are not considered alcoholics are
disciplined in similar circumstances.
U.S. Citizenship _Not Required for Protection
A person does _not have to be a United States citizen to be
covered by Title II of the ADA. There are no citizenship requirements
in Title II.
* Print Pages 30-31
** CHAPTER THREE PLANNING FOR COMPLIANCE
This chapter will present a practical approach to organizing and
implementing your school system's effort to come into compliance with
Title II. This "five-four-three" approach highlights five action
steps, four principles, and three phases that must be considered as
you develop a manageable process that is well adapted to your needs.
The chapter presents _five _action _steps: designating a
responsible employee, providing notice of ADA requirements,
establishing a grievance procedure, conducting a self-evaluation, and
developing a transition plan. The chapter also reviews timelines for
carrying out these steps and achieving compliance.
Experience in achieving compliance with Section 504 of the
Rehabilitation Act has shown that _four _principles are keys to
success that must be considered as each step is taken. These include:
-- commitment from the highest level of leadership;
-- coordination of compliance activities;
-- involvement of people with disabilities; and
-- institutionalization of compliance procedures.
The self-evaluation--or the updated self-evaluation--should be
implemented in _three _phases. During the first phase, preliminary
planning occurs to define the compliance process, identify
participants, and set up the procedures for communication and
coordination that will ensure its success. In the second phase, a
comprehensive evaluation of current services, policies, and practices
is undertaken under the oversight of the ADA coordinator. In the
third phase, information is assessed and essential modifications
identified in the second phase are carried out.
Following the initial discussion of this "five-four-three"
approach, the chapter focuses on recommended procedures for
conducting Phase One, including planning steps needed to prepare to
conduct the self-evaluation and meet other administrative
requirements of Title II. The chapter concludes with worksheets
designed to assist you in this initial planning phase.
FIVE ACTION STEPS
Title II of the ADA requires that state and local government
entities--including school systems--take systematic steps to
* Print Page 32
examine their programs and establish a plan for ensuring compliance
with the law. Five action steps must be taken to bring a public
entity into compliance with the regulation:
STEP ONE: Designate a responsible employee
STEP TWO: Provide notice of ADA requirements
STEP THREE: Establish a grievance procedure
STEP FOUR: Conduct a self-evaluation
STEP FIVE: Develop a transition plan
Each of these steps will now be discussed in more detail.
STEP ONE: Designate a Responsible Employee
Under Title II, any public entity with fifty or more employees
must designate at least one employee to coordinate ADA compliance [28
C.F.R. 35.107(a)]. The regulation refers to this person as the
"responsible employee" or employees; this guide uses the term "ADA
coordinator." It is strongly recommended that school systems,
regardless of size, designate a _single person with overall
responsibility for coordinating all compliance activities. It is
important to note that school districts that are subject to Section
504 and employ fifteen or more persons must designate at least one
person to coordinate their Section 504 compliance activities [34
C.F.R. 104.7(a)]. The same individual can coordinate ADA and
Section 504 compliance activities.
28 C.F.R. 35.107(a) Designation of responsible employee. A
public entity that employs 50 or more persons shall designate at
least one employee to coordinate its efforts to comply with and carry
out its responsibilities under this part, including any investigation
of any complaint communicated to it alleging its noncompliance with
this part or alleging any actions that would be prohibited by this
part. The public entity shall make available to all interested
individuals the name, office address, and telephone number of the
employee or employees designated pursuant to this paragraph.
The ADA coordinator is the key player in ensuring ADA
compliance. The coordinator's role includes planning and coordinating
overall compliance efforts, ensuring that the five action steps are
completed, and receiving and investigating complaints related to
discrimination on the basis of disability. To fulfill his or her job,
the coordinator must have the authority, knowledge, skills and
motivation to implement the regulations effectively.
One purpose of this requirement is to ensure that members of the
public who need to deal with school systems can readily identify a
person who is familiar with ADA and Section 504 requirements and who
can communicate those requirements to other key staff. It is expected
that this employee will have the authority to take whatever action is
needed to correct infractions. It is also required, however, that the
school system make every effort to prevent violations by ensuring
that all of its employees and agents are thoroughly familiar with
their obligations.
In order to ensure that individuals can easily identify the ADA
coordinator, the public entity must provide the ADA coordinator's
name, office address, and telephone number to all interested
individuals [28 C.F.R. 35.107(a)]. Notice of the identity of the
ADA coordinator is generally combined for ease and efficiency with
notice of ADA requirements--our next step.
* Print Page 33
STEP TWO: Provide Notice of ADA Requirements
All public entities, regardless of size, must provide
information to applicants, participants, beneficiaries, employees,
and other interested persons regarding the rights and protections
afforded by Title II, including information about how the Title II
requirements apply to its particular programs, services, and
activities [28 C.F.R. 35.106].
28 C.F.R. 35.106 Notice. A public entity shall make available
to applicants, participants, beneficiaries, and other interested
persons information regarding the provisions of this part and its
applicability to the services, programs, or activities of the public
entity, and make such information available to them in such manner as
the head of the entity finds necessary to apprise such persons of the
protections against discrimination assured them by the Act and this
part.
The notice requirements of Title II and Section 504 are somewhat
different. Under the Section 504 regulation, a recipient of federal
financial assistance that employs 15 or more people must provide a
notice that states, where appropriate, that the recipient does not
discriminate on the basis of disability in admission or access to, or
treatment or employment in, its programs and activities [34 C.F.R.
104.8(a)]. Under Section 504, the notice must also include
identification of the employee designated to coordinate Section 504
compliance efforts. A recipient of federal financial assistance that
provides notice about coverage under the ADA must still meet the more
specific notice requirement of Section 504, including identification
of the Section 504 coordinator, if the recipient has 15 or more
employees.
A sample notice consistent with the requirements of Title II and
Section 504 that can be adapted by your school system is provided on
the following [print] page. Note that in order to facilitate
effective communication, the information is presented in clear,
straightforward language, avoiding legal and bureaucratic idioms, and
in alternative formats that are accessible to individuals with
different disabilities. In the sample notice on the next [print]
page, the same person coordinates Title II and Section 504
requirements. The sample notice also identifies the ADA and Section
504 coordinator by name and gives this person's office address and
telephone number.
The school system must provide this information not just once,
but on an ongoing basis [28 C.F.R. 35.106 and 34 C.F.R.
104.8(a)]. Appropriate methods of providing notice include
publication of information in handbooks, manuals, and pamphlets that
are distributed to the public to describe a public entity's programs
and activities; the display of informative posters in public places;
or the broadcast of information by television or radio.
Different approaches are particularly suited to different
segments of the public. On the following [print] page are some of the
ways in which this information can be provided on a regular basis to
specific target audiences.
Many organizations use graphic symbols such as those shown on
[print] page 35 in notices and advertisements to call attention to
the nature of the message.
* Print Page 34
SAMPLE NOTICE
NAME OF SCHOOL SYSTEM] does not discriminate on the basis of
disability in admission to its programs, services, or activities, in
access to them, in treatment of individuals with disabilities, or in
any aspect of their operations. The [school system] also does not
discriminate on the basis of disability in its hiring or employment
practices.
This notice is provided as required by Title II of the Americans
with Disabilities Act of 1990 and Section 504 of the Rehabilitation
Act of 1973. Questions, complaints, or requests for additional
information regarding the ADA and Section 504 may be forwarded to the
designated ADA and Section 504 compliance coordinator:
Name and Title: ----
Office Address: ----
Phone Number (Voice/TDD): ----
Days/Hours Available: ----
This notice is available from the ADA and Section 504 compliance
coordinator in large print, on audio tape, and in Braille. [If
additional alternative formats are available, such as computer
bulletin boards, school districts may state that this notice is
available in the additional alternative formats.]
SOME METHODS OF PROVIDING NOTICE
In this table, columns follow each other in this order: IN
ORDER TO REACH: PROVIDE INFORMATION THROUGH.
The public at large: newspaper legal notice, flyers posted at
all
facilities, radio and/or captioned television announcements.
Students: report card enclosures, regular mailings, postings at
all program sites and frequented areas, announcements in school
newspaper.
Prospective Employees: insert in job application, newspaper ads,
posted advertisements, posted vacancy notices.
Current Employees: regular mailings to employees, posting at
work sites, postings in lounges, faculty rooms, and dining areas,
personnel manual.
* Print Page 35
It is ultimately the responsibility of the head of the school
system to determine the most effective methods for making individuals
aware of their rights and protections, although this responsibility
may be delegated to the ADA coordinator.
Notices should be accessible to people with various
disabilities. For example, information should be available to persons
with mobility impairments; therefore, it may not be posted only in a
portion of the building accessible exclusively by stairs. The school
system must also be prepared to provide notices in _alternative
_formats upon request.
Examples of alternative formats include:
-- radio reading services;
-- large print (18-point or more);
-- audiocassettes;
-- bulletin boards;
-- Braille; and
-- captioning.
It is possible to give notice through many of the channels
suggested on the previous [print] page using alternative formats.
For example, some newspapers feature a large print or Braille
edition. They may also offer a dial-in reading service. Flyers can
also be posted in large print versions.
STEP THREE: Establish a Grievance Procedure
It is a common misunderstanding among many public school systems
that the required grievance procedure applies only to employees. Not
so! The purpose of this grievance procedure is to provide a means for
timely resolution of _all problems or conflicts related to ADA
compliance before they escalate to the point where the complainant
feels it necessary to resort to the federal complaint process or
litigation. This procedure must be just as accessible and appropriate
for use by students or public citizens as by school system employees.
28 C.F.R. 35.107(b) Complaint procedure. A public entity that
employs 50 or more persons shall adopt and publish grievance
procedures providing for prompt and equitable resolution of
complaints alleging any action that would be prohibited by this part.
The Title II regulation provides that the ADA coordinator is to
oversee the investigation and resolution of complaints [28 C.F.R.
35.107(a)]. The Title II regulation also provides that public
entities must adopt and publish grievance procedures providing
* Print Page 36
for prompt and equitable resolution of complaints [28 C.F.R.
35.107(b)]. The public entity may use a grievance procedure that is
already in place; it is not necessary to design a separate process
specifically for the ADA. The Title II requirements regarding
grievance procedures have been in effect since January 26, 1992.
There are similarities and differences between the Title II and
Section 504 requirements concerning grievance procedures. Both
regulations require that covered entities adopt and publish a
grievance procedure providing for the prompt and equitable resolution
of complaints [28 C.F.R. 35.107(b) and 34 C.F.R. 104.7(b)]. Under
both regulations, complainants are not required to exhaust grievance
procedures before filing a complaint with the U.S. Department of
Education's Office for Civil Rights. However, the Section 504
requirements apply to recipients with fifteen or more employees,
while the Title II requirements apply to public entities with 50 or
more employees [28 C.F.R. 35.107(a) and 34 C.F.R. 104.7(a)].
Also, unlike the Title II regulation, the Section 504 regulation
specifically states that grievance procedures must adopt due process
standards [34 C.F.R. 104.7(b)]. In addition, unlike Title II,
Section 504 does not require that grievance procedures be established
for applicants for employment or for admission to post-secondary
educational institutions [34 C.F.R. 104.7(b)]. Thus, grievance
procedures under Title II must provide a forum for these
complainants.
This Guide recommends that a grievance procedure include the
following components:
-- a detailed description of the procedures for submitting a
grievance;
-- a two-step review process that allows for appeal;
-- reasonable time frames for review and resolution of the
grievance;
-- records of all complaints submitted, responses given, and
steps taken to resolve the issue; and
-- an alternative procedure if the complainant alleges that
the ADA coordinator or other school officials with responsibilities
regarding the grievance procedures process are a part of the alleged
discrimination.
Your school system should feel free to adapt the grievance
procedures requirements of Title II and Section 504 to your specific
working procedures and authority structure.
As mentioned earlier, the U.S. Department of Education's Office
for Civil Rights is responsible for investigating complaints alleging
discrimination on the basis of disability under Title II and Section
504 by public elementary and secondary school systems. A delay in
filing a complaint that is the result of first pursuing the school
system's grievance procedure is generally
* Print Page 37
considered good cause for extending the time available to submit the
complaint.
STEP FOUR: Conduct a Self-Evaluation
All public entities, regardless of size, must conduct a
self-evaluation [28 C.F.R. 35.105(a)]. The self-evaluation is a
comprehensive review of the public entity's current policies and
practices, including communications and employment. Through the
self-evaluation, the public entity must:
1. identify any policies or practices that do not comply with
the Title II requirements; and
2. modify policies and practices to bring them into
compliance.
28 C.F.R. 35.105 Self-evaluation. (a) A public entity shall,
within one year of the effective date of this part, evaluate its
current services, policies, and practices, and the effects thereof,
that do not or may not meet the requirements of this part and, to the
extent, modifications of any such services, policies, and practices,
is required, the public entity shall proceed to make the necessary
modifications.
The scope of the review includes not only formal written
policies and procedures (such as those contained in employee
handbooks and memoranda) but also actual operating practices [28
C.F.R. 35.105(a)]. In order to review what is actually done, as
well as what is on paper as policy, it is important to involve not
only administrators and senior managers but also program staff and
participants. The school system must analyze the impact on persons
with disabilities, recognizing that adverse effects are often
inadvertent.
The Title II self-evaluation should have been completed by
January 26, 1993 [28 C.F.R. 35.105(a)]. School systems have been
responsible for compliance with Title II since January 26, 1992.
Therefore, if discriminatory policies or practices are identified
during the review process, they should be modified immediately.
The regulations require that school systems provide an
opportunity for interested persons to participate in the
self-evaluation by submitting comments [28 C.F.R. 35.105(b)].
Experience with Section 504 has shown the self-evaluation process to
be a valuable means of establishing a working relationship with
individuals with disabilities, one that promotes effective and
efficient implementation of nondiscriminatory policies and
procedures. The U.S. Department of Education expects that it will
likewise be useful to public entities newly covered by the ADA.
28 C.F.R. 35.105 Self-evaluation. (b) A public entity shall
provide an opportunity to interested persons, including individuals
with disabilities or organizations representing individuals with
disabilities, to participate in the self-evaluation process by
submitting comments.
Public entities that employ 50 or more persons must maintain the
self-evaluation on file and make it available for public inspection
for at least three years from the date the self-evaluation was
completed [28 C.F.R. 35.105(c)]. It is the responsibility of the
ADA coordinator to maintain required information in a form that will
facilitate a prompt response to requests. Records kept must identify
individuals who participated directly or indirectly in the review,
the areas examined, whatever problems were discovered, and the
corrections made as a result of the self-evaluation process [28
C.F.R. 35.105(c)].
28 C.F.R. 35.105 Self-evaluation. (c) A public entity that
employs 50 or more persons shall, for at least three years following
completion of the self-evaluation, maintain on file and make
available for public inspection:
(1) A list of the interested persons consulted;
(2) A description of areas examined and any problems identified;
and
(3) A description of any modifications made.
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If your school system receives federal funding and you have
previously conducted a self-evaluation as required by
Section 504, you are required to review only:
1. programs established since the Section 504 self-evaluation
was conducted; and
2. new or modified policies or practices that were not
included in an earlier self-evaluation [28 C.F.R. 35.105(c)].
However, because most self-evaluations were done some years ago,
many school systems should reexamine _all of their policies and
programs. Programs and functions may have changed, and actions that
were supposed to have been taken to comply with Section 504 may not
have been fully implemented or may no longer be effective. (A glaring
example of such an area of change is the entire realm of computers,
now a significant part of nearly every aspect of services and
programs.) Furthermore, many Section 504 self-evaluations focused on
access to facilities, with limited attention to the ADA's requirement
to provide equally effective communications for persons with
disabilities.
Public entities that were required to have completed Section 504
self-evaluations and have not done so may meet this obligation as
they carry out the ADA self-evaluation. However, the deadlines for
programmatic and structural modifications required under the ADA
cannot be substituted for the Section 504 deadlines. Federally funded
state and local entities must meet _both the Section 504 and the ADA
compliance deadlines. If your school system has not completed its
Section 504 self-evaluation or made the necessary modifications to
policies and procedures, this Guide recommends that you prioritize
and implement modifications in order to ensure Section 504 compliance
as quickly as possible.
A specific approach to carrying out a self-evaluation in each of
the four areas required by Title II--general nondiscrimination
requirements, employment, program access, and communications--is
presented as the final part of each of the four corresponding
chapters of this Guide. In addition, worksheets are included for use
in conducting the self-evaluation. They may be used as is or adapted
to better meet the specific needs of your school system.
It is also important to note that while the self-evaluation is
not required to address the need for ADA-related training, it would
be appropriate for school districts to evaluate training efforts
because, in many cases, lack of training can lead to discriminatory
practices, even when the policies in place are nondiscriminatory.
28 C.F.R. 35.105 Self-evaluation. (d) If a public entity has
already complied with the self-evaluation requirement of a regulation
implementing section 504 of the Rehabilitation Act of 1973, then the
requirements of this section shall apply only to those policies and
practices that were not included in the previous self-evaluation.
* Print Page 39
STEP FIVE: Develop a Transition Plan
Under Title II, public school districts that employ 50 or more
persons are required to develop a transition plan when structural
changes to existing facilities are necessary in order to make a
program, service, or activity accessible to people with disabilities
[28 C.F.R. 35.150(d)(1)]. The regulations require that, at a
minimum, the transition plan:
-- identify physical obstacles in facilities that limit the
accessibility of the public entity's programs, services, or
activities to people with disabilities, including inadequate
structural communication features (see Chapter Seven, __Requirements
for Effective _Communication);
-- describe in detail the methods the entity will use to make
the facilities accessible;
-- provide a schedule for making the access modifications;
-- provide a yearly schedule for making the modifications if
the transition plan is more than one year long; and
-- indicate the name of the official who is responsible for
implementing the transition plan [28 C.F.R. 35.150(d)(3)].
28 C.F.R. 35.150 (d) Transition Plan. (1) In the event that
structural changes to facilities will be undertaken to achieve
program accessibility, a public entity that employs 50 or more
persons shall develop, within six months of January 26, 1992, a
transition plan setting forth the steps necessary to complete such
changes. A public entity shall provide an opportunity to interested
persons, including individuals with disabilities or organizations
representing individuals with disabilities, to participate in the
development of the transition plan by submitting comments. A copy of
the transition plan shall be made available for public inspection.
The Title II transition plan is required for programs and
policies that were not previously included in a Section 504
transition plan [28 C.F.R. 35.150(d)(4)]. However, public school
systems that are covered under Section 504 are not shielded from
obligations under that statute, such as deadlines for making
structural modifications, merely because they have met the Title II
transition plan requirements.
The Title II transition plan was to have been developed by July
26, 1992 [28 C.F.R. 35.150(d)(1)]. Nonstructural changes should be
implemented immediately. Any structural changes outlined in the
transition plan must be completed as expeditiously as possible, but
no later than January 26, 1995 [28 C.F.R. 35.150(c)]. A review of
existing facilities should be performed early in the self-evaluation
process. Completing the transition plan will clarify priorities and
facilitate completion of structural changes. A more detailed
discussion of the Title II and Section 504 requirements regarding
transition plans is presented in Chapter Six, _Program
_Accessibility.
Timelines for Compliance
The two tables that follow summarize the entities which are
required to comply with each of the five action steps that have just
been discussed and the effective dates by which critical milestones
identified in the action steps must be achieved.
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WHO MUST COMPLY?
In this table, columns follow each other in this order: ACTION
STEPS: ENTITIES REQUIRE TO COMPLY, Title II; ENTITIES REQUIRED TO
COMPLY, Section 504.
1. Designate responsible employee: 50 or more employees; 15 or
more employees.
2. Provide notice: All entities; 15 or more employees.
3. Establish grievance procedure: 50 or more employees; 15 or
more employees.
4. Conduct self-evaluation: All entities; All entities.
5. Develop transition plan: 50 or more employees; All entities.
DEADLINES FOR COMPLIANCE
In this table, columns follow each other in this order:
REQUIREMENTS: DEADLINES, Title II; DEADLINES, Section 504.
1. Designate responsible employee: January 26, 1992; June 3,
1977.
2. Provide notice: January 26, 1992; September 3, 1977.
3. Establish grievance procedure: January 26, 1992; June 3,
1977.
4. Conduct self-evaluation: January 26, 1993; June 3, 1978.
5. Develop transition plan: July 26, 1992; December 3, 1977.
6. Complete structural changes: January 26, 1995 (but as
expeditiously as possible); June 3, 1980.
* Print Page 41
FOUR PRINCIPLES OF EFFECTIVE COMPLIANCE
School system personnel experienced with Section 504 cite four
general principles as keys to an effective compliance process that
are highly relevant to Title II:
1. Gain commitment from leaders;
2. Coordinate compliance activities;
3. Involve people with disabilities; and
4. Institutionalize compliance procedures.
Each of these principles will help you open doors for persons
with disabilities to participate fully in your school system. Not
only will they help you comply with the specific requirements of the
ADA, but they will also foster dynamic, ongoing change that will help
identify and end other discriminatory practices as well. The
following paragraphs give a general idea of what is meant by each
principle; however, each school system will need to adapt the
principles thoughtfully to its own situation.
PRINCIPLE ONE: Gain Commitment from School System Leaders
To establish a solid foundation for compliance, seek an explicit
commitment by the senior political and executive leadership of your
school system to the ADA's goals and to full compliance with the ADA
requirements. It is critical that this commitment be communicated
clearly and convincingly to all staff and students. When high-level
officials in the school system and others in responsible positions
assume strong leadership roles, program managers and staff are far
more motivated to address nondiscrimination. The senior leadership
should remain involved throughout the compliance process, reviewing
progress and participating in decision-making at critical points
(such as the approval of budgets for barrier removal).
PRINCIPLE TWO: Coordinate Compliance Activities
ADA compliance is a complex process that affects the school
system at many levels. Experience indicates that compliance
activities are best approached as a coordinated whole; few problems
can be effectively remedied through a fragmented effort. Coordination
can facilitate the sharing of information and resources and
strengthen accountability. The designation of the ADA coordinator is
a critical first step in promoting coordination. As mentioned earlier
in the chapter, the ADA coordinator is the key player in planning and
coordinating ADA compliance efforts.
* Print Page 42
In addition, your school system will want to form a compliance
team to work with the coordinator. The structure of support for
coordination will depend on the size of your school system and the
way it is organized. For relatively small systems, your compliance
team may be a working group in which major divisions and functions
are represented, and which includes personnel who have the skills and
experience necessary to carry out planning and implementation tasks.
Larger school systems may have an executive committee, a compliance
team that meets regularly to oversee the compliance process as a
whole, and subcommittees for the different functional areas of the
ADA (e.g., employment, program accessibility, communication, and
policies and practices).
PRINCIPLE THREE: Involve People with Disabilities
The Title II regulation requires that you involve people with
disabilities and other interested persons in the self-evaluation
process and in the development of the transition plan. The experience
of many communities confirms that cooperation between the disability
community and educational institutions can lead to creative problem
solving, improved communications, and mutual understanding. For
example, if your school system has student organizations that
represent students with disabilities, these organizations can be
invited to send representatives. Many associations that serve
persons with disabilities would also be responsive to calls
requesting nominations for committee membership.
PRINCIPLE FOUR: Institutionalize Compliance Procedures
The self-evaluation and the transition plan target needed
modifications in employment practices, operating procedures,
communications, and access to programs and facilities. Ensuring that
these modifications are made and that equal opportunity for persons
with disabilities is institutionalized is a difficult task. One of
the lessons learned from experience with Section 504 was that many
educational institutions failed to adequately follow through on their
planning, while others instituted changes unevenly or allowed them to
erode over time.
Success in implementing permanent changes depends to a great
extent on the quality of the planning process itself and on the
degree to which compliance becomes integrated in ongoing operations.
For example, it is important that training be offered to familiarize
new employees with nondiscrimination policies and practices. Also,
accessible features, once installed, must be regularly maintained [28
C.F.R. 35.133(a)]. Similarly, as the employee handbook is updated,
procedures must be in place to ensure that updates are consistent
with nondiscrimination requirements. The ADA coordinator should be
the key player
* Print Page 43
responsible for ensuring that compliance becomes integrated in the
school district's ongoing operations. This Guide recommends that
compliance teams composed of individuals representing major divisions
and functions work with the coordinator to ensure ongoing compliance.
THE THREE-PHASE PROCESS
This approach organizes the self-evaluation process into three
main phases, which incorporate the five action steps and four
principles discussed earlier. The flowchart on [print] page 46
illustrates the three phases of the self-evaluation process:
Phase I: Preliminary planning
Phase II: Evaluating current services, policies, and practices
Phase III: Selecting and implementing modifications
The three phases are not chronologically distinct. Phases II and
III, in particular, overlap extensively. Discriminatory policies,
practices, and procedures identified in the self-evaluation should be
modified immediately, even before the self-evaluation is completed.
When barriers to programs and facilities are identified,
nonstructural changes to ensure program accessibility should be made
as expeditiously as possible.
Following a brief summary of each phase, Phase I will be
discussed in more detail. Each of the remaining chapters of this
Guide (except Chapter 8, _Compliance _Procedures) will conclude with
a discussion of how to conduct Phases II and III so that the
requirements presented in those chapters are fully addressed in the
self-evaluation process.
PHASE ONE: Preliminary Planning
During Phase I, the designated ADA coordinator is appointed and
placed in position with a firm statement of commitment and mission
from the senior leadership of the school system (Action Step One).
This person becomes thoroughly familiar with the requirements of the
regulations through review of materials, training, conversations with
peers, and other means, as appropriate.
The coordinator facilitates the definition of the compliance
process through which the school system will complete its
self-evaluation and transition plan. This will include, for example,
determining what group size and membership is appropriate for each
task given the school system's size and structure. A compliance team
(or several teams) is recruited and oriented to its tasks.
Individuals with disabilities and others from the community are
identified and recruited to participate in the self-evaluation
* Print Page 44
process. These might include parents, students, and concerned members
of the local community, especially those with disabilities.
The process of planning and implementation is defined by the
compliance team or executive committee. Notice is given of the ADA
coordinator and the school system's commitment to compliance (Action
Step Two). An internal procedure for attempting to address and
resolve grievances stemming from alleged ADA violations is
established (Action Step Three).
Throughout the planning phase, internal coordination occurs to
ensure that leaders are aware of and support the steps taken.
PHASE TWO: Evaluating Current Services, Policies, and Practices
During Phase II, Action Steps Four (conducting a
self-evaluation) and Five (developing a transition plan) are
initiated. Subcommittees, as assigned, thoroughly investigate how the
school system currently operates in each of the areas covered by the
regulations and document the situation as it exists. Areas to be
examined include nondiscrimination policies and procedures in
programs and activities; employment; accessibility to facilities
where programs, services, and activities occur; and effective
communication.
Worksheets are included in the Guide to facilitate this
process. As problems are identified, immediate steps are taken
wherever possible to remedy them and achieve compliance. As reports
are presented, more complex problems (such as those that may require
structural changes or relocation of major programs) are analyzed.
Options are clearly defined and possible modifications are identified
for consideration.
PHASE THREE: Selecting and Implementing Modifications
During Phase III, Action Steps Four and Five are concluded and
procedures for ongoing monitoring to maintain compliance are adopted.
Major accomplishments expected during Phase III include the
following:
-- Changes to discriminatory policies, practices, and
procedures are fully documented and institutionalized.
-- Employment practices are further modified as needed;
managers, interviewers, and others involved in the school system's
employment process are fully informed of any changes in procedure
that must be made to comply with the ADA.
* Print Page 45
-- A draft version of a transition plan to complete
structural changes is prepared and circulated for comment.
-- Revisions to the transition plan are integrated into a
final plan and necessary steps are taken to meet timelines for
structural changes.
-- Structural changes to achieve program access are made.
-- Procedures are put in place to ensure that access to
facilities that house programs, activities, and services is
maintained (perhaps through regular inspections).
-- Other nonstructural changes to achieve program access are
instituted.
-- The school district takes further actions as required
(beyond those already taken in Phase II) to permanently upgrade its
capacity for ensuring effective communication with persons who have
disabilities.
During this phase, staff training and other internal
communication must occur to ensure that everyone understands what
changes were made and why. Clear and appropriate training and
communication will maximize the support and understanding of the
school district as a whole and help ensure that violations do not
occur because of lack of knowledge. This training and communication
must occur on an ongoing basis, since employees change continually.
New employees must be routinely familiarized with their part in
ensuring continued compliance.
* Print Page 46
PHASE ONE: PRELIMINARY PLANNING
Appoint ADA coordinator.
Gain statement of commitment from school system leadership.
Plan compliance process.
Appoint team members.
Orient/train team members.
Refine compliance process.
List all programs, services, and activities.
Collect summary data for listed programs, services, and
activities.
Draft and publish notice.
Draft and publish grievance procedures.
PHASE TWO: SELF-EVALUATION
Audit programs, services, and activities to ensure
nondiscriminatory policies and procedures.
Evaluate employment policies and practices.
Evaluate facilities to ensure access to all programs, services,
and activities.
Evaluate communications to ensure they are equally effective for
persons with disabilities.
PHASE THREE: MODIFICATIONS
Modify discriminatory policies and practices.
Plan for ongoing staff orientation.
Make nonstructural modifications.
Develop transition plan for structural modifications.
Make structural modifications.
Develop communications capacity.
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IMPLEMENTATION
Conducting the Planning Process
This section provides suggestions for conducting the following
Phase One activities:
-- Orientation and project start-up
-- Structure and initiate the compliance process
-- Develop an overview of school system programs
Implementation
Orientation and Project Start-up
The ADA coordinator initiates planning through a series of tasks
designed to gain personal familiarity with legal requirements,
structure and initiate the compliance process, develop an overview of
the school system's programs, and complete initial action steps.
These key tasks consist of substeps that may be outlined as follows.
Complete Personal Orientation to the ADA
-- Review the ADA statute, regulations, and technical
assistance materials.
-- Attend an ADA training program.
-- Review the school system's Section 504 plans and
documents.
-- Discuss compliance with key staff and community leaders.
Structure and Initiate the Compliance Process
-- Evaluate personnel and resources needed for the compliance
process.
-- Convene or recruit, orient, and train compliance team.
-- Draft a compliance process work plan.
Develop Overview of School System's Programs
-- List key programs, services, and activities within the
school system.
-- Collect concise descriptions for key programs, services,
and activities.
-- Collect and document policies and practices governing
administrative procedures for these key programs, services, and
activities.
__Worksheet 3-1 will help you monitor your completion of these
initial tasks, which are discussed more fully in the [print] pages
that _follow.
_Complete _Personal _Orientation. The ADA coordinator's personal
orientation process is extremely important. If you are the ADA
coordinator, you will need to understand ADA requirements thoroughly.
As coordinator, you should be able to answer questions from others
employed by the school system as well as
* Print Page 48
from those who are served by the schools. As you begin to accumulate
information, it is important to develop organized and effective
filing systems that will help you readily access the information you
and others will need. You should also keep careful track of those who
have helped you in these initial stages; you will want to maintain a
network of well-informed and reliable resources you can contact when
specific issues arise. (See _Resources for assistance in developing
your network.)
Structure and Initiate the Compliance Process
There is no one correct approach to compliance. Each school
system must develop an approach that meets its own needs and those of
the community it serves. The following guidance and worksheets,
however, may be helpful to you as you plan your approach.
A team approach is key to achieving successful compliance for
several reasons. First, to complete the self-evaluation and
transition plan, information must be collected from _all of the
school system's programs, services, and activities. Clearly, this is
too large a task for one person. Second, the transition plan and
self-evaluation require varied expertise and specialized skills. A
team approach enables individuals with all of the necessary skills to
be involved in the compliance process.
One of the important aspects of the ADA coordinator's job is to
identify the various players needed for this team effort. While each
school system will have its own considerations and requirements
regarding team formation, the following criteria should be considered
in establishing the compliance team and structure:
1. __Include representatives from all major organizational
_units. Each department or other major organizational unit should
designate a liaison to the compliance team. Liaisons should
participate in overall planning and decision making, collect
information regarding their respective departments' policies and
practices, inform staff within their departments of ADA requirements,
and serve as contact persons for the public within that department.
For large school districts, more than one level of a compliance
team may be needed to ensure adequate representation and information
flow. There may be three types of teams for larger school systems: an
executive committee that directs the compliance effort and makes
executive-level decisions related to the process; an ADA compliance
team that oversees the effort, setting and monitoring system-wide
deadlines for specific activities; and working subcommittees for each
functional area of the ADA that address specific components of the
self-evaluation (for example, employ-
* Print Page 49
ment, program accessibility, policies and practices, and
communication). Depending on your school system's structure, you may
want subcommittees to address more than one functional area.
2. __Include persons with special skills and _expertise.
Including staff and/or outside parties with skills and expertise in
the following areas will be particularly helpful to the team:
-- capital planning and budgeting;
-- general program operations;
-- communications technology;
-- computer technology; and
-- disabilities.
In addition, representatives of the following offices or
activities are essential:
-- facilities management;
-- employment/personnel management;
-- finance and budgeting;
-- contracts and purchasing;
-- food services; and
-- special education.
This list is not intended to be complete; rather, these examples
should start you off as you plan your particular approach.
3. _Include _opinion _leaders. Include "opinion leaders" on
the compliance team. People who are respected by their colleagues
will strengthen cooperation, improve participation during the
compliance process, and promote effective institutionalization of the
results.
4. __Involve people with _disabilities. Individuals with
disabilities are key to achieving ADA compliance for several reasons.
First, the regulation requires that you provide an opportunity for
people with disabilities and other interested individuals or
organizations to review and comment on the self-evaluation and
transition plan [28 C.F.R. 35.105(b) and 35.150(d)(1)]. Second,
involving the end users in the process will generate solutions that
are creative and effective. Third, involving people with disabilities
in decision-making will strengthen the accountability of the process
and ensure wise use of limited public resources.
Simply having a disability does not, in and of itself, guarantee
quality input in the self-evaluation process. People chosen to
participate should have either disability-oriented expertise or
applicable skills that will help address one or more areas of the
self-evaluation. An effective participant should be able to repre-
* Print Page 50
sent not only his or her personal perspective, but also that of as
broad a constituency as possible within the disability community. The
process as a whole should provide for representation of as wide a
range of individuals with disabilities as possible.
School systems are often wary of inviting outside parties to
participate in reviews such as the self-evaluation. The experience of
many school systems, however, has demonstrated that the participation
of people with disabilities and disability organizations creates
trust and leads to more cost-effective solutions and fewer disputes
in the long run.
If you are unsure of how to identify disability organizations to
assist in the self-evaluation, federally funded regional Disability
and Business Technical Assistance Centers may be able to provide a
list of organizations in your area. (See _Resources.) Another
approach is to place a notice in the newspaper or on the radio asking
local individuals and organizations to participate.
__Worksheet 3-2 will assist you in thinking through and
recording membership for compliance teams. Option One is intended for
smaller school systems that consist of units that operate fairly
independently from one another. It assumes that each unit within the
school district will be carrying out all of the tasks associated with
the ADA self-evaluation under a unit-specific organizational leader.
The worksheet asks for the name of the top policy-maker within each
unit and for the liaison to the ADA compliance team who will
represent that unit. This may be the same person as the top
policy-maker or it may be a designated representative of that person.
__Option Two is intended for larger school districts. This
option assumes that there is an executive committee, a compliance
team, and functional subcommittees.
__Examples of participants for each group include the
_following:
Executive Committee: __Persons with oversight responsibilities
for the school system as a whole, such as the personnel director,
representatives of the supervisory board (or similar oversight
structure), the director of finance, the director of affirmative
action/EEO, representatives of key organizations familiar with the
needs and concerns of persons with disabilities, and of course, the
ADA _coordinator.
ADA Compliance Team: __This team will plan and coordinate the
compliance effort, including selecting the approach and worksheets
for each area of the self-evaluation. Chaired by the ADA coordinator,
this team should have broad cross-
* Print Page 51
cutting representation from all major programs. It is suggested that
the team also include persons with disabilities.
__It is also possible to have the executive committee take on
the work of the compliance team; however, many school systems may
have senior officials who will not have the time required to attend
to the details of planning and implementing the compliance _effort.
In addition, some school systems may wish to appoint
task-specific subcommittees. These could include the following:
-- __Policies and Practices _Subcommittee: This team would
be responsible for reviewing policies and practices that govern the
provision of free appropriate public education and policies and
practices that govern programs, activities and services of public
school systems. Team members should include persons who are familiar
with policies and practices, such as regular and special education
senior staff, school psychologists, coordinators for special events
and after-hours programs, and coordinators for athletics and other
major program areas. (See Chapter Four, _General _Nondiscrimination
_Requirements.
-- _Employment _Subcommittee: This team would be responsible
for reviewing employment-related policies and procedures and
recommending changes to those found to be discriminatory. Team
members should include persons who are familiar with
employment-related policies and procedures. (See Chapter Five,
__Requirements for Employment Policies and _Practices.)
-- _Program _Accessibility _Subcommittee: This team would be
responsible for examining facilities used for programs to ensure that
they are accessible to individuals with disabilities. Team members
should include individuals with responsibilities for capital
planning, parking, facilities design, facilities maintenance, space
planning, and the planning and scheduling of events. (See Chapter
Six, _Program _Accessibility.)
-- Communication Subcommittee: This team would be responsible
for ensuring that "equally effective communication" is available for
individuals with disabilities at academic programs, parent-teacher
organization meetings, public events, libraries, and other school
system programs and activities. Team members should include
individuals familiar with auxiliary aids and services, telephone
placement and use, telecommunications, computer facilities, library
research and other facilities, and persons responsible for planning
parent-teacher organization meetings and public events. (See Chapter
Seven, __Requirements for Effective _Communication.)
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Once the ADA compliance team membership has been approved by the
senior political and executive leadership, the ADA coordinator should
set up an initial team meeting for the executive committee and/or
compliance team. In the first meeting it may be useful to provide
background information. All team members should receive copies of
this self-evaluation guide, the __Americans with Disabilities Act
Title II Technical Assistance _Manual and any draft worksheets
preselected for use in reviewing current procedures, practices, and
services. (To obtain copies of the __Americans with Disabilities Act
Title II Technical Assistance _Manual, contact the U.S. Department
of Justice. See _Resources.) The team can then proceed to review and
revise the proposed compliance work plan. Based on the compliance
plan, the team can form any additional committees needed to refine
the compliance process, develop or refine assessment tools, and
recruit additional participants. The team should also establish a
schedule for conducting compliance activities.
Early on, the team should attend an ADA training program, either
in-house or off-site. ADA training programs are available from a
number of sources. Many entities have people on staff, advisory
boards, or commissions and nearby community organizations that can
contribute to staff development and training. A variety of outside
ADA training opportunities, materials, and consultants are also
available. Referrals to training and consulting sources are available
through the regional Disability and Business Technical Assistance
Centers. (See _Resources.)
A word of caution, however, is in order: An industry of instant
experts has sprung up around the ADA. Check references and
credentials carefully when selecting ADA training or consultants. For
more information, request the "ADA-Related Consultant/Contractor
Guidelines" from the Disability and Business Technical Assistance
Centers.
Even before the team is assembled, the ADA coordinator will want
to draft a compliance process work plan. Once the compliance team is
in place, its first major task will be to refine that work plan and,
upon approval, proceed to implement it.
__Worksheet 3-3 is intended to help your school district monitor
completion of important activities in the self-evaluation _process.
Develop an Overview of School System Programs
Since the compliance team must oversee compliance efforts
throughout the school system, team members need a way of "getting the
big picture" quickly. Many of them may be thoroughly familiar with
their own programs, but not with other programs. One way to gain this
familiarity is to ask for prelimi-
* Print Page 53
nary documentation and summaries from each program area. This
information will help the team identify potential areas of concern
and recognize the unique features of different program areas that
must be taken into account as worksheets are developed or adapted for
use in the self-evaluation.
Collecting policy and procedures manuals will also provide the
team with useful resources as it plans the policies and practices
review. At the end of the planning phase, you should have a
compilation of the school district's policies in all the various
forms in which they may appear--manuals, policy directives,
administrative directives, guidance memoranda, and even unwritten
policies.
The unit you define as a "program" will depend on the number and
complexity of programs and activities within your school system and
the extent to which they are similar or different from one another
(among other factors). The preliminary information you collect during
the planning phase of the self-evaluation process will serve as a
convenient summary for future reference.
In addition, the programs, activities, and services you list
will be those you intend to audit as units during the self-evaluation
process. Some school systems perform this audit by sending survey
forms to be completed by the designated contact; others use volunteer
interviewers; still others hire consultants. For most school systems,
examples of audit areas (besides the delivery of specific educational
programs) would include, for example, such diverse areas as security,
athletics, food service, public events, student health, counseling,
and library services.
__Worksheet 3-4 will help you list, then collect, preliminary
information from programs, activities and services throughout your
school system. Part I of this worksheet simply asks you to list these
programs, activities, and services and indicate a contact person for
each (the person to whom you would send the request for information
presented in Part II). Part II may be used to provide concise
descriptions of programs, activities and services. It may also be
used to collect information on policies and procedures used by these
programs, activities and _services.
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Worksheet 3-1
ORIENTATION AND PROJECT START-UP
SCHOOL DISTRICT: ----
NAME (ADA coordinator): ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Check off each task in the orientation and start-up phase of ADA
compliance as it is completed.
-- Reviewed the ADA statute and regulations
-- Attended an ADA training program
Provider: ----
Date: ----
-- Reviewed the school system's Section 504 documents and plans
-- Discussed compliance with key staff and community leaders
(attach a list)
-- Recruited/convened team members
-- Executive committee (if applicable)
-- Compliance team
-- Subcommittees (if applicable)
-- Drafted compliance work plan
Date approved: ----
-- Oriented and trained team and committee members
-- Listed key programs, activities, and services within the school
system
-- Prepared concise descriptions for key programs, activities, and
services
-- Collected and documented policies and practices for key programs,
activities, and services
-- Drafted notice and publicity procedures
-- Notice reviewed and approved
-- Implemented notice
-- Drafted grievance procedures and publicity procedures
-- Grievance procedures reviewed and approved
Date implemented: ----
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Worksheet 3-2
(OPTION 1) COMPLIANCE TEAM IDENTIFICATION
SCHOOL DISTRICT: ----
NAME (ADA coordinator): ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Use this worksheet (Option 1) to identify your compliance team
if you intend to use one central team to direct the self-evaluation.
Compliance team's role or mission in ensuring ADA compliance: ----
Meeting frequency/location: ----
Procedures for convening compliance team: ----
In this empty table, columns follow each other in this order:
Department or Program: Top Policy Maker; Compliance Team Liaison.
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Worksheet 3-2
(Option 2) COMPLIANCE TEAM IDENTIFICATION
SCHOOL DISTRICT: ----
NAME (ADA coordinator): ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Use this worksheet (Option 2) to identify the compliance team if
you intend to use an executive committee in addition to a compliance
team.
(1) _Executive _Committee, role or mission in ensuring ADA
compliance: ---- Meeting frequency/location: ---- Procedures for
convening executive committee: ----
In this empty table, columns follow each other in this order:
Member Name: Title; Oversight Area; Notes.
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(2) _Compliance _team, role or mission in ensuring ADA
compliance: ---- Meeting frequency/location: ---- Procedures for
convening compliance team: ----
In this empty table, columns follow each other in this order:
Department or Program: Representative; Special Expertise.
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Worksheet 3-3
DEFINING AND MONITORING THE COMPLIANCE PROCESS
SCHOOL DISTRICT: ----
NAME (ADA coordinator): ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
List each step in the self-evaluation process identified by the
compliance team. Note the associated worksheets selected for use and
identified target dates for completion of worksheets. Record the
actual date of completion as each activity is finished.
In this empty table, columns follow each other in this order:
Compliance Step: Worksheet Number; Completion Date (Target);
Completion Date (Actual).
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Worksheet 3-4
SUMMARIZING PROGRAMS, ACTIVITIES, AND SERVICES
SCHOOL DISTRICT: ----
NAME (ADA coordinator): ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
List all programs, activities, and services and the contact
person for providing the information requested on the following
[print] page. Send the request for information to the designated
contact persons with a cover memorandum that explains its purpose,
lists the person to whom the form should be returned, and discusses
any other necessary administrative information.
Part 1. List of Programs, Activities, and Services
In this empty table, columns follow each other in this order:
Program, Activity, or Service: Contact.
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Part II. Request for Program, Activity, or Service Summary
__Please provide a concise description of your program area that
includes the following basic information. Summaries should be
returned to the ADA coordinator by the following _date: ----
Policies and Procedures
1. List and provide copies of basic policies and procedures
for your program area. These policies and procedures may be in the
form of written policies, manuals, policy directives, guidance
memoranda, or even unwritten policies.
Contracting and Staffing
1. Indicate what role, if any, contractors play in your
program area.
2. Indicate what role, if any, other non-employees play in
your program area.
3. Indicate any unique features of your program area's
employment policies and requirements.
Facilities Used by the Program Area
4. Please list all facilities your program area uses.
Communications
5. Please indicate briefly how each of the following are used
in your program. Of interest is who (in general terms) uses these
forms of communication, for what purpose, and approximately how
frequently.
-- Telephone access
-- Libraries or reading rooms
-- Automated equipment, including computers
-- Audio-visual presentations (television, tapes, etc.)
-- Meetings and presentations
-- Books and other printed material
6. Please list the normal means by which your program area
communicates policies and other key information to staff and to
students.
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** CHAPTER FOUR GENERAL NONDISCRIMINATION REQUIREMENTS
Chapter Four describes general nondiscrimination requirements
that should be used to analyze whether the programs, policies, and
practices of a public school system comply with Title II. These
requirements apply to all operations, services, benefits, programs,
and activities of a school district.
As we have noted, the more specific requirements imposed on a
school district under Section 504 are applicable under Title II
wherever necessary to ensure that Title II is interpreted in a way
that is consistent with the intent of the ADA (see Chapter One). The
obligations of a school district, specifically described under
Section 504, to provide a free appropriate public education (FAPE) to
school-age individuals with disabilities, regardless of the nature or
severity of their disabilities, are incorporated in the general
provisions of Title II that are discussed in this chapter [28 C.F.R.
35.130; 28 C.F.R. 35.103(a); see 34 C.F.R. 104.31-104.37].
Therefore, as a school district evaluates its compliance with the
general prohibitions against discrimination, it must consider the
specific issues that govern the provision of appropriate educational
services to school-age individuals with disabilities (FAPE); these
specific requirements must be addressed separately from those
pertinent to services provided to other individuals with disabilities
(such as parents and the general public). Throughout the chapter, we
will point out areas in which a two-prong analysis will be
appropriate.
Chapter Four begins with an overview of the requirements for
ensuring FAPE for school-age individuals with disabilities that are
part of the general prohibitions section of Title II. Because school
districts have been implementing these requirements for many years,
the purpose of this overview is to establish a frame of reference
within which the general prohibitions of Title II may be considered,
rather than to discuss FAPE requirements in a comprehensive manner.
The chapter then reviews each of the requirements of the
regulation in sequence. Among major topics addressed in the chapter
are the applicability of the regulation; its basic equal opportunity
requirements; the obligation to make reasonable modifications in
policies, practices, and procedures; and eligibility requirements.
The chapter concludes with worksheets designed to assist school
systems in their self-evaluation of policies and practices. Two
survey instruments are provided, one of which deals with issues
related to FAPE and one of which deals with nondiscrimination
* Print Page 62
requirements pertinent to a broader range of constituents (such as
parents and members of the general public).
OVERVIEW OF FAPE REQUIREMENTS THAT ARE INCORPORATED IN GENERAL
PROHIBITIONS
Provision of FAPE requires a school district to provide regular
or special education and related aids or services that are: (1)
designed to meet the individual needs of persons with disabilities as
adequately as the needs of nondisabled persons are met; and (2) able
to satisfy requirements, outlined below, regarding educational
setting, evaluation and placement, and due process safeguards.
Examples of related aids and services that may be provided to
individuals with disabilities in either regular or special education
programs include: interpreters for students with hearing impairments;
readers for students with visual impairments; equipment and equipment
modifications to accommodate the needs of students with mobility
impairments, manual impairments, hearing impairments, or visual
impairments; speech therapy; psychological services; physical and
occupational therapy; school health services; or school social work
services.
A school district must provide an appropriate public education
to a person with a disability without cost to the person or to his or
her parents or guardians, except for those fees that are also imposed
on nondisabled persons or their parents or guardians.
FAPE requirements also govern the selection of educational
settings for school-age individuals with disabilities. As discussed
on [print] pages 63-64, while a placement team can select a placement
for a student with a disability from a range of options, the
placement team must ensure that the selected placement provides for
the student's education with nondisabled students to the maximum
extent appropriate to the needs of that student. A school district
must place an individual with a disability in the regular educational
environment operated by the school district unless the school
district shows that, even with the use of supplementary aids and
services, the individual's education cannot be achieved
satisfactorily in that setting.
Depending on the needs of an individual child, an appropriate
education may consist of education in regular classes, education in
regular classes with the use of supplementary services, or special
education and related services. If a school district is unable to
provide a child with a disability with an appropriate education, and
the district places the child or refers the child to a program it
does not operate, the district is still responsible for ensuring that
the education offered is in compliance with all requirements related
to the provision of FAPE, including
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ensuring that the education is provided at no cost to the child or the
child's parents.
A school district must provide children with disabilities with
an opportunity to participate in nonacademic and extracurricular
services and activities equal to that provided to nondisabled
children. With respect to nonacademic services and activities for
persons entitled to FAPE, a school district must ensure that each
individual with a disability participates with nondisabled
individuals to the maximum extent appropriate to the needs of that
individual. Nonacademic and extracurricular services and activities
include meals, recess, counseling services, recreational activities
and athletics, transportation, clubs sponsored by the school, and
referrals to outside agencies, including employment agencies. A
school district must provide nonacademic and extracurricular
activities in a manner that ensures that individuals with
disabilities have an equal opportunity to participate.
In order to ensure the provision of FAPE to school-age children,
a school district must establish standards and procedures for the
evaluation and placement of persons who, because of disability,
either need or are believed to need special education and/or related
aids and services. An evaluation must be conducted before the child's
initial placement in regular or special education as well as before
any subsequent significant change in that placement. A school
district is also required to periodically re-evaluate students who
have been provided special education and/or related aids and
services.
With respect to evaluation procedures, a school district must
ensure that:
1) tests and other evaluation materials have been validated
for the specific purpose for which they are used, and are
administered by trained personnel in conformance with the
instructions provided by their producer;
2) tests and other evaluation materials are tailored to
assess specific areas of educational need and not merely designed to
provide a single general intelligence quotient; and
3) tests are selected and administered so as best to ensure
that, when a test is administered to a student with impaired sensory,
manual, or speaking skills, the test results accurately reflect the
student's aptitude or achievement level (or whatever other factor the
test purports to measure) rather than reflecting the student's
impaired sensory, manual, or speaking skills (except where those
skills are the factors that the test purports to measure).
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With respect to placement procedures, in order to ensure
FAPE, a school district must take the following steps in
interpreting evaluation data and in making placement decisions:
1. Draw upon information from a variety of sources, including
aptitude and achievement tests, teacher recommendations, physical
conditions, social or cultural background, and adaptive behavior;
2. Establish procedures to ensure that information obtained
from all sources is documented and carefully considered;
3. Ensure that the placement decision is made by a group of
persons, including persons knowledgeable about the child and the
meaning of the evaluation data and placement options; and
4. Ensure that the placement decision complies with the
requirements outlined above regarding educational setting.
When the school district has identified the educational and
related services needed by a child with disabilities, it must
describe the program in writing, and it must provide services as
described in the written plan.
In order to ensure the provision of FAPE, a school district is
required to implement a system of procedural safeguards to be
afforded to parents and guardians with respect to any action
regarding the identification, evaluation, and placement of children
who, because of disability, need or are believed to need special
education or related services. At a minimum, the due process
procedures must afford parents and guardians:
1. notice;
2. a right for parents and guardians to inspect relevant
records;
3. an impartial hearing with an opportunity for participation
by parents and with a right to representation by counsel; and
4. a review procedure.
The due process procedures described in the Individuals with
Disabilities Education Act (IDEA) are one means of meeting the due
process requirements and are recommended to school districts as a
model.
Because school districts have specific responsibilities related
to the provision of a free appropriate public education to school-age
individuals with disabilities, it will in some instances be necessary
for a school district to perform a two-prong analysis of its
programs, operations, benefits, and services:
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1. an analysis of programs, operations, benefits, and
services provided by the district to anyone, including school-age
children with disabilities; and
2. an analysis of education programs, operations, benefits,
and services provided to school-age students with disabilities in
connection with the provision of FAPE.
The discussion of the general prohibitions that follows will
provide advice as to when the two-prong approach will be necessary
and, where applicable, will provide examples showing application in a
context where FAPE is required and in a context where FAPE is not
required.
GENERAL PROHIBITIONS AGAINST DISCRIMINATION
_Applicability. A school district must ensure that no qualified
individual with a disability is, on the basis of disability, excluded
from participation in or denied any benefit of its services,
programs, or activities, or subjected to any other discrimination [28
C.F.R. 35.130(a)].
28 C.F.R. 35.130 General prohibitions against
discrimination.
(a) No qualified individual with a disability shall, on the
basis of disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any public entity.
The requirement to ensure that qualified individuals with
disabilities are not discriminated against in public school programs
is applicable to the programs, activities, services, and operations
that are operated or provided directly by public school districts, as
well as those operated or provided by another entity on behalf of the
public school district under contractual or other arrangements [28
C.F.R. 35.130(b)(1)]. This means that in conducting the
self-evaluation it is necessary to evaluate programs, activities,
services, and operations that are provided by another entity on
behalf of the school district through contractual or other
arrangements as well as those provided directly by the school system.
For example, a school district that operates its own bus
transportation program to transport elementary and secondary students
between home and school may not exclude students with severe visual
disabilities, on the basis of disability, from taking the bus. If the
same school district contracted with a private company to take over
the operation of its bus transportation program, it continues to be
responsible for nondiscrimination in the bus program. Accordingly, if
the private bus company excluded a student from service on the basis
of the student's disability, the school district would be liable
under Title II for that discrimination, even where the private bus
company also was liable for discrimination under a law other than
Title II.
* Print Page 66
Basic Equal Opportunity Requirements
__Denial of Opportunity to Participate or Benefit _Prohibited.
A public school system must ensure that no qualified individual with
a disability is, on the basis of disability, excluded from
participation in, or denied any benefit of, its services, programs,
or activities, or subjected to any other discrimination [28 C.F.R.
35.130(a)]. This means that, in providing general benefits and
services, a public school district must take steps to ensure that a
qualified individual with a disability is not denied the opportunity
to participate in any of its programs or to benefit from any aid,
benefit, or service that it provides. With respect to school-age
individuals with disabilities, a public school district must ensure
that no student is denied a free appropriate public education [28
C.F.R. 35.103(a); 28 C.F.R. 35.130(b)(1)(i)].
28 C.F.R. 35.130(b)(1) A public entity, in providing any aid,
benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of disability--
(i) Deny a qualified individual with a disability the
opportunity to participate in or benefit from the aid, benefit, or
service.
A school district's obligation not to discriminate against
qualified individuals on the basis of disability extends to the
appointment of members to planning or advisory boards[28 C.F.R.
35.130(b)(1)(vi)].
Examples: Are these individuals with disabilities subjected to
discrimination on the basis of disability?
1. In an effort to increase parental involvement, a school
district invites parents of students to volunteer as classroom aides
to perform a variety of tasks, including distributing and collecting
materials and escorting groups of students to the playground, the
library, and the lunchroom. A parent with a speech impairment
volunteers, but is denied the opportunity because of his disability.
This is a violation of Title II.
2. The parents of a high-school-age student with a behavioral
disorder seek to enroll the child in the local high school. The
school district determines, without using the required procedures
related to evaluation and placement, that the child may not enroll in
the regular program, but, rather, must be provided with educational
services at home. The school district has failed to follow the
requirements related to provision of a free appropriate public
education and has denied this student an equal opportunity to
participate in the education program, in violation of Title II.
__Provision of Unequal Opportunity or Benefit _Prohibited. A
public school district must also ensure that, in providing general
services and benefits, a qualified individual with a disability is
provided an opportunity to participate in its programs that is equal
to the opportunity that is provided to nondisabled persons to
participate. A school district must also ensure that a qualified
* Print Page 67
individual with a disability is provided with an opportunity to
benefit from any aid, benefit, or service that is provided under its
programs that is equal to the opportunity that is provided to
nondisabled individuals.
With respect to school-age individuals with disabilities, this
requirement incorporates the responsibility of a school district to
ensure that school-age individuals with disabilities are provided a
free appropriate public education in accordance with the principles
outlined above [28 C.F.R. 35.103(a); 28 C.F.R. 35.130(b)(1)(ii)].
28 C.F.R. 35.130(b)(1) A public entity, in providing any aid,
benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of disability--
(ii) Afford a qualified individual with a disability an
opportunity to participate in or benefit from the aid, benefit, or
service that is not equal to that afforded others.
Example: Does this school policy discriminate against a parent
with a disability?
A school sends out a notice to parents, asking that they
volunteer to accompany the class on various field trips throughout
the year. The request is conditioned by a statement that for
"insurance reasons" parents with disabilities may not serve as
chaperons.
This policy violates Title II, because the opportunity to
participate in their child's field trips is denied to all parents
with disabilities. Thus, the opportunity provided to those parents
with disabilities who would be qualified to participate in the field
trips is unequal to the opportunity provided to nondisabled parents.
Examples: Are these children receiving unequal opportunities or
benefits?
1. A school district has evaluated a child with a disability
and determined that, in order to provide a free appropriate education
to the child, the child must be provided with bus transportation and
must participate in the school educational program for the full
instructional day. However, the district's transportation policies
for students with disabilities result in the provision of a shorter
instructional day for this student than is provided for nondisabled
students. The transportation policy causes this child to be denied,
on the basis of disability, an opportunity to participate in the full
instructional day that is equal to the opportunity provided to
nondisabled students, and thus denies the child a free appropriate
public education in violation of Title II.
2. A child with a profound hearing disability is evaluated,
and it is determined that, in order to provide a free appropriate
public education, related aids and services,
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including a sign language interpreter, must be provided. The school
district, citing expense, refuses to pay for the sign language
interpreter. Where a related aid or service is found to be necessary
to the provision of a free appropriate public education, denial of
the related aid or service causes the child to be denied, on the
basis of disability, an opportunity to participate in or receive
benefits under the program that is equal to that provided to
nondisabled students, and is thus in violation of Title II.
__Provision of Benefit or Service That Is Not Equally Effective
_Prohibited. In providing general services and benefits, a school
district must ensure that services provided to qualified individuals
with disabilities are effective enough to afford equal opportunity to
obtain the same result, gain the same benefit, or reach the same
level of achievement as nondisabled individuals.
With respect to school-age individuals with disabilities, this
requirement incorporates the responsibility of a school district to
ensure that school-age individuals with disabilities are provided a
free appropriate public education in accordance with the principles
outlined earlier [28 C.F.R. 35.103(a); 28 C.F.R.
35.130(b)(1)(iii)].
28 C.F.R. 35.130(b)(1) A public entity, in providing any aid,
benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of disability--
(iii) Provide a qualified individual with a disability with an
aid, benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, to
reach the same level of achievement as that provided to others.
Examples: Are the benefits or services provided "equally effective"?
1. A school sponsors an exhibit of art produced by high
school students. A parent with a vision impairment cannot see the
sculptures created by his son, and requests that the school permit
him to touch the sculptures. Although the sculptures would not be
damaged by touching, the school informs the parent that the art must
remain in the display case and that persons attending the exhibit may
not touch the artwork.
Whereas nondisabled individuals can appreciate the sculptures
simply by looking at them, the parent with the vision impairment can
appreciate them only by touching them. Thus, the school's response
does not ensure that the parent has an equal opportunity to obtain
the same result or gain the same benefit as that provided to
nondisabled persons. Clearly, the benefit provided to the parent is
not "equally effective."
2. A child with a learning disability is evaluated, and it is
determined that the child can participate in the regular education
program with certain modifications, such as being permitted
additional time in which to take tests. Any action inconsistent with
this determination, such as a teacher's denial of additional time to
take a test, would
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result in provision of an educational service to this student that
was not effective enough to afford him an equal opportunity to reach
the same level of achievement as nondisabled students.
_Programs. Under Title II, a school district may not operate
separate or different programs, or provide separate or different
benefits or services within programs, for individuals with
disabilities, unless such programs, benefits, or services are
necessary to provide benefits to persons with disabilities that are
equally as effective as those provided to nondisabled persons [28
C.F.R. 35.103(a); 28 C.F.R. 35.130(b)(1)(iv)]. Even when
separate programs, benefits, or services are permitted under Title
II, a school district must provide them in the most integrated
setting appropriate to the needs of qualified individuals with
disabilities [28 C.F.R. 35.103(a); 28 C.F.R. 35.130(d)].
28 C.F.R. 35.130(b)(1) A public entity, in providing any aid,
benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of disability--
(iv) Provide different or separate aids, benefits, or services
to individuals with disabilities or to any class of individuals with
disabilities than is provided to others unless such action is
necessary to provide qualified individuals with disabilities with
aids, benefits, or services that are as effective as those provided
to others ....
(2) A public entity may not deny a qualified individual with a
disability the opportunity to participate in services, programs, or
activities that are not separate or different, despite the existence
of permissibly separate or different programs or activities.
In conducting the self-evaluation, a school district must
evaluate any separate or different programs, benefits, or services
provided to individuals with disabilities. However, because there are
specific requirements for providing FAPE to school-age children, a
school district should evaluate any separate or different programs
related to the provision of educational services to school-age
children both under the requirements applicable to all individuals
with disabilities and in accordance with the specific requirements of
FAPE. These requirements are discussed separately in the sections
that follow.
(1) Separate or Different Programs--General
School districts must administer services, programs, and
activities in the most integrated setting appropriate to the needs of
qualified individuals with disabilities [28 C.F.R. 35.103(a); 28
C.F.R. 35.130 (d)]. However, a school district may offer separate
or special programs when necessary to provide individuals with
disabilities an equal opportunity to participate in the program or
benefit from its services. Any such separate or special program must
be specifically tailored to meet the needs of the individuals with
disabilities for whom it is provided.
Separate programs may not be established based on stereotypes or
presumptions about what a class of individuals with disabilities can
or cannot do. However, even where the school district operates a
permissibly separate program or offers a permissibly separate service
or benefit, it may not deny participation in the regular program or
provision of the regular service or benefit to any qualified
individual with a disability [28 C.F.R. 35.103(a); 28 C.F.R.
35.130(b)(2)]. The determination as to whether an individual with a
disability is qualified to participate in the regular program must
necessarily take into account other requirements of Title II, such as
making reasonable modifications in policies, programs, and practices,
providing auxiliary aids,
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and ensuring program accessibility.
It is also important to note that persons with disabilities have
the right to decline accommodations, aids, or services, including
those that might be offered to individuals with disabilities
participating in regular programs [28 C.F.R. 35.103(a); 28 C.F.R.
35.130 (e)]. For example, a parent with a hearing impairment may
choose to decline special front-row seating at parent-teacher
organization meetings. However, if individuals decline
accommodations necessary to enable them to participate in a program
and are unable to meet the essential eligibility requirements of the
program without the accommodations, they would not be "qualified
individuals with disabilities." Of course, individuals with
disabilities have the right to provide their own accommodations, aids
and services, which may enable them to be qualified to participate in
a program.
(2) Separate or Different Programs--Education of School-age Children
A school district may offer separate or special programs when
necessary to provide school-age individuals with FAPE, subject to the
requirements discussed earlier regarding educational setting,
evaluation and placement requirements, and procedural safeguards. As
outlined earlier, a school district must offer academic and
nonacademic programs, benefits, and services in the most integrated
setting appropriate to the needs of the individual with disabilities.
In providing permissibly separate or different programs, benefits, or
services for school-age individuals with disabilities (such as
physical education courses or athletics activities), a school
district must ensure that no qualified individual with a disability
is denied the opportunity to also participate in the program, or to
receive the service or benefit, that is _not separate or different.
Examples: Are these separate or different programs permissible?
1. The school district sponsors recreational leagues for
adults. One of the leagues is a separate basketball league for
individuals who use wheelchairs.
As long as the school district permits individuals with
disabilities who use wheelchairs to participate in other recreational
leagues for which they are qualified, the separate wheelchair
basketball league is permitted.
2. A child with mental retardation is evaluated, and it is
determined that the academic setting most appropriate to her needs is
a special education program. It is further determined that the child
should participate in recess, physical education, and lunch with
nondisabled students.
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As long as the evaluation and placement in the separate special
education program are consistent with the requirements related to the
provision of FAPE outlined earlier, and as long as the child has an
opportunity to participate in nonacademic activities in accordance
with the determination, the placement in the separate special
education program is consistent with Title II.
Surcharges Prohibited
Title II prohibits placing surcharges on individuals with
disabilities to cover the cost of measures necessary to provide
nondiscriminatory treatment [28 C.F.R. 103(a); 28 C.F.R.
35.130(f)].
As discussed above in connection with the obligation of a school
district to provide FAPE to school-age children, the district must
provide FAPE without cost to the person with a disability or to his
or her parents.
Examples: Are these surcharges prohibited under Title II?
1. A child with cerebral palsy is evaluated and it is
determined that he should be placed in a regular educational program
with related aids and services, including use of a computer at school
and at home. The child's parents are sent a bill for the lease of the
computer from the school district. The school district's action is
illegal. The district may not charge the student or his parents for
the computer or any other related aid or service necessary to provide
a free appropriate public education.
2. The high school dramatic society puts on a series of plays
under school sponsorship to which the entire local community is
invited. In a discussion with school officials, it is suggested that
a one-dollar surcharge be placed on tickets sold to individuals with
hearing impairments to help defray the cost of the new assistive
listening devices. Any such surcharge would be a violation of Title
II.
With respect to qualified individuals with disabilities, a
school district is prohibited from placing surcharges on any such
individual. This means, for example, that a school district that
provides an auxiliary aid to an individual with a disability in order
to enable that individual to participate in the program effectively
may not charge the individual for the auxiliary aid. A school
district may, however, charge individuals with disabilities the same
fees for services, programs, and events that it charges
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individuals without disabilities.
Reasonable Modifications in Policies, Practices, or Procedures
A school district must make reasonable modifications to its
policies, practices, and procedures when such modifications are
necessary to ensure that a qualified individual with a disability is
not discriminated against on the basis of disability [28 C.F.R.
35.130(b)(7)]. Evaluation of this requirement by a school district
necessitates the two-prong analysis outlined above, in which the
specific requirement for the school district to provide FAPE to
school-age children is considered separately from the general
provision that is applicable to _all qualified individuals with
disabilities. For this reason, we will discuss reasonable
modifications in general terms and in regard to FAPE separately.
28 C.F.R. 35.130(b)(7) A public entity shall make reasonable
modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the basis of
disability, unless the public entity can demonstrate that making the
modifications would fundamentally alter the nature of the service,
program, or activity.
__Reasonable Modifications in Policies, Practices, and
Procedures--_General. In conducting a self-evaluation of its
policies, practices, and procedures, a school district must determine
the effect of each one on individuals with disabilities. Where a
school district identifies a policy, practice, or procedure that has
any type of discriminatory effect on individuals with disabilities,
the district is required to modify it unless the modification would
not be "reasonable." A modification of a policy, practice, or
procedure would not be reasonable where the district can demonstrate
that the modification would "fundamentally alter" the nature of the
particular service, program, or activity affected.
Each school district must examine its policies, practices, and
procedures related to the provision of services, benefits, and
programs. Wherever these services, benefits, and programs are not
accessible to qualified individuals with disabilities because of
policies, practices, and procedures, the school district must
identify modifications that would enable the district to meet all
substantive requirements to ensure equal opportunities for
individuals with disabilities.
Example: Has this school failed to make a reasonable modification of
the school's policies, practices, or procedures?
A school requests that adults in the community volunteer to
tutor "at risk" students in a variety of subjects. In order to ensure
that volunteers possess the necessary subject matter expertise and to
best match volunteers and students, the school requires, as part of
the application process, that volunteers take a written test to
demonstrate their knowledge of subject matter. Tests are administered
under timed conditions. An individual with a learning disability
applies to volunteer as a tutor. She submits references and
documentation to show
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that she has subject matter expertise and prior successful experience
in tutoring the particular subject. She also submits documentation to
show that, due to her learning disability, she would need additional
time for completing the test. The school indicates that it is
unwilling to modify its policy regarding the time for completing the
test.
The individual seeking to volunteer has been denied an
opportunity to participate in the tutoring program because of a
failure to make a reasonable modification in the application
procedures for this program. Providing this modification would not
fundamentally alter the nature of a service, program, or activity.
Therefore, the school's decision was illegal.
__Reasonable Modifications in Policies, Practices, and
Procedures--Application to School-Age Individuals with Disabilities
(_FAPE). As part of the required self-evaluation, school districts
must assess their policies, practices, and procedures in light of the
specific requirement to provide FAPE to school-age children. The
fundamental nature of a school district's program involves the
provision of elementary and secondary educational services to
school-age students, including provision of FAPE to school-age
children with disabilities. Consequently, if a failure to modify a
policy, practice, or procedure would result in a denial of FAPE to a
school-age individual with a disability, a school district may _not
refuse to make this modification on the basis that such modification
would constitute a fundamental alteration of the nature of its
education program.
Unlike the requirement to provide auxiliary aids in contexts
other than FAPE (discussed in Chapter Seven), the obligation to
provide related aids and services necessary to the provision of FAPE
is _not subject to the limitations regarding undue financial and
administrative burdens or fundamental alteration of the program. (The
concepts of "undue burdens" and "fundamental alteration" are
discussed in Chapter Seven.)
Example: Is this child denied FAPE because of a failure to provide
reasonable modifications in school policies and practices?
A school district has a regular school year of 10 months. A
child with developmental disabilities is evaluated and it is
determined that placement in a 12-month program is appropriate. The
school district makes an administrative decision that it does not
wish to allocate limited funds to 12-month programs and cancels them.
Instead, it places the child in a special 10-month program.
To comply with Title II, the school district must ensure that
this child is provided with educational services for 12 months.
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Eligibility Criteria
A school district may not use eligibility criteria for
participation in its programs or receipt of its benefits or services
that directly or indirectly screen out individuals with disabilities,
or that directly or indirectly cause individuals with disabilities to
be denied full and equal participation, services, or benefits,
_unless the eligibility criteria are necessary for the provision of
the service, program, or activity being offered [28 C.F.R.
35.103(a); 28 C.F.R. 35.130(b)(8)]. Because a school district has
specific requirements to provide FAPE to school-age children with
disabilities, as outlined below, a school district should use a
two-prong analysis in evaluating whether its eligibility requirements
comply with Title II.
28 C.F.R. 35.130(b)(8) A public entity shall not impose or
apply eligibility criteria that screen out or tend to screen out an
individual with a disability or any class of individuals with
disabilities from fully and equally enjoying any service, program, or
activity, unless such criteria can be shown to be necessary for the
provision of the service, program, or activity being offered.
_General. In assessing general eligibility requirements, it is
necessary to recall that an individual with a disability who meets
the essential eligibility requirements for the receipt of services or
participation in a program is "qualified" to receive services from
the district or participate in a district program. This is true
regardless of the terms of that participation--that is, with or
without reasonable modifications to rules, policies, or practices;
with or without the removal of architectural barriers; and regardless
of whether auxiliary aids or services are provided. Accordingly, the
self-evaluation process must determine whether there are eligibility
requirements that affect individuals with disabilities adversely,
and, if so, whether those requirements are necessary for the
provision of the service, benefit, or program.
The school district must first determine: (1) whether it imposes
any eligibility requirements _directly on the basis of disability
that screen out, restrict, or segregate individuals with
disabilities; (2) whether it imposes any eligibility requirements
that, although not based on disability, _indirectly screen out,
limit, or segregate individuals with disabilities; or (3) whether it
imposes any eligibility requirements that place a requirement or
burden on individuals with disabilities that is not placed on others.
In each case in which the school district identifies an
eligibility requirement that adversely affects individuals with
disabilities in any of the ways outlined above, the school district
must determine if the eligibility requirement is essential. These
determinations must be made on a case-by-case basis, using facts
related to the particular service, benefit, or program, and
considering what is essential to the purpose of the particular
service, benefit, or program offered by the district.
As noted above, where an individual with a disability can meet
the essential eligibility requirements related to receipt of services
or participation in the program--with or without reasonable
modifications--he or she is "qualified." Such an individual may not
be screened out or limited because of difficulty in performing
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tasks that bear only a marginal relationship to the purpose of the
service, benefit, or program. Note, however, that a school district
is not required to eliminate those requirements that _are necessary
to the provision of the service, benefit, or program.
A school district may impose legitimate safety requirements
necessary for the safe operation of its services, benefits, or
programs. However, any safety requirement must be based on actual
risks, and not on speculation, stereotypes, or generalizations about
individuals with disabilities.
Examples: Are these eligibility requirements permissible?
1. A school district sponsors evening non-credit classes in
arts and crafts for adults. The application states that individuals
with disabilities must submit a doctor's certificate indicating that
they are able to participate in the course. The district can make no
showing that this blanket requirement is essential. This type of
eligibility requirement is in violation of Title II.
2. A school district offers an evening non-credit course in
scuba diving. The course instructor proposes to prohibit students who
use wheelchairs from signing up for the course on the presumption
that a person who uses a wheelchair would not be able to swim well
enough to participate in the program.
Denial of admission to a course based on stereotypes or
generalizations about what individuals with disabilities can or
cannot do is inconsistent with Title II. However, where a safety
requirement can be shown to be necessary based on real risks, it is
permissible under Title II even if the requirement would tend to
screen out individuals with certain types of disabilities. In the
case of the scuba diving course, where the school district can
demonstrate that a certain level of swimming ability is necessary for
safe participation in the class, the school district may require that
all participants in the class pass a swimming test, even if the test
would tend to screen out individuals with certain types of
disabilities. However, a blanket prohibition such as the one
described above would be prohibited.
__School-Age Children Entitled to _FAPE. With respect to
assessing eligibility requirements related to the education of
school-age children, the underlying consideration, as discussed
above, is that a school district is _required to provide FAPE to
school-age individuals with disabilities. In this regard, the
fundamental nature of the school district's education program
includes the provision of FAPE to school-age children, in accordance
with the
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requirements outlined above related to educational setting,
evaluation and placement, and procedural safeguards.
Example: Is this restriction on related aids and services permissible?
A school district limits eligibility for related aids and
services, such as occupational therapy or physical therapy, to
individuals with disabilities who are enrolled in the special
education program. This eligibility requirement denies related aids
and services that are necessary to fulfillment of the obligation to
provide a free appropriate public education to all individuals with
disabilities who are enrolled in the regular education program, but
who have been determined, in accordance with the requirements related
to the provision of FAPE, to need related aids or services. Thus,
this eligibility requirement is inconsistent with Title II.
Effect of Policies and Practices (Criteria or Methods of
Administration)
A school district may not use "criteria or methods of
administration" that result in discrimination on the basis of
disability [28 C.F.R. 35.103(a); 28 C.F.R. 35.130(b)(3)]. As
discussed above, under Title II, a public school system may not have
written policies or actual operating practices that exclude qualified
individuals with disabilities directly on the basis of their
disability. The requirement prohibiting criteria or methods of
administration that have the effect of discriminating on the basis of
disability means that a school district may not use policies or
practices--even where they are not stated in terms of prohibiting
participation on the basis of disability or where they are not
intended to prohibit or limit participation on the basis of
disability--that cause qualified individuals with disabilities to be
denied an equal opportunity to participate in a program or to benefit
on an equal basis under the program.
28 C.F.R. 35.130(b)(3) A public entity may not, directly or
through contractual or other arrangements, utilize criteria or
methods of administration:
(i) That have the effect of subjecting qualified individuals
with disabilities to discrimination on the basis of disability;
((ii) That have the purpose or effect of defeating or
substantially impairing accomplishment of the objectives of the
public entity's program with respect to individuals with
disabilities; or
(iii) That perpetuate the discrimination of another public
entity if both public entities are subject to common administrative
control or are agencies of the same State.
In conducting a self-evaluation, a school district must assess
the results of policies and practices to determine if any policies or
practices: (1) have the effect of subjecting qualified individuals
with disabilities to discrimination on the basis of disability; (2)
defeat or substantially impair accomplishment of the district's
programs with respect to individuals with disabilities; or (3)
perpetuate discrimination of one public entity by another when both
entities are under common administrative control or are agencies of
the same state [28 C.F.R. 35.130(b)(3)].
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Selecting Sites and Locations
In determining the site or location of a facility, a school
district may not select a site or location that: (1) has the effect
of excluding individuals with disabilities, denying them benefits, or
otherwise subjecting them to discrimination; or (2) has the purpose
or effect of defeating or substantially impairing the accomplishment
of the objectives of the service, program, or activity with respect
to individuals with disabilities [28 C.F.R. 35.103(a); 28 C.F.R.
35.130(b)(4)]. Thus, the site selection procedures of a school
district should routinely include an assessment of whether the
terrain or any other feature of a site or location under
consideration would have any adverse effect on participation by
qualified individuals with disabilities.
The requirements concerning the selection of sites and locations
do not apply to construction of additional buildings at an existing
site. However, any such facilities must be made accessible in
accordance with the requirements for new construction discussed in
Chapter Six.
Significant Assistance to Entities That Discriminate
School districts must identify agencies, organizations, and
persons to whom the school system provides "significant assistance"
and determine whether, through that assistance, they may be aiding or
perpetuating discrimination against qualified individuals with
disabilities. Interpretive guidance issued by the U.S. Department of
Education in connection with Section 504 states that, in determining
whether assistance to another entity is "significant," a school
district should consider the substantiality of the relationship
between the district and the other entity, including any financial
support the district provides, and whether the other entity's
activities relate so closely to the district's programs that they
should fairly be considered activities of the district.
28 C.F.R. 35.130(b)(1) A public entity, in providing any aid,
benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of disability--
(v) Aid or perpetuate discrimination against a qualified
individual with a disability by providing significant assistance to
an agency, organization, or person that discriminates on the basis of
disability in providing any aid, benefit, or service to beneficiaries
of the public entity's program.
Example: Is this school district providing "significant assistance"
to an organization that discriminates against persons with
disabilities?
A school district permits a national service fraternity to
establish a tutoring and mentoring program for "at-risk" students at
a junior high school. The school participates with the fraternity in
publicizing the program to students, in counseling students to
participate in the program, and providing space and supplies for the
program. Then the school learns that the fraternity plans to ask
students who have applied to the program whether they are
HIV-positive and to screen students out of the program on that basis.
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The initial relationship between the school district and the
fraternity would constitute the provision of "significant assistance"
to the fraternity. The school district must inform the service
fraternity that it cannot provide "significant assistance" to an
organization that discriminates on the basis of disability. If the
service fraternity does not eliminate the discriminatory criterion
for participation, the school must terminate its "significant
assistance."
Procurement Contracts
A school district may not discriminate on the basis of
disability in the selection of contractors in any procurement [28
C.F.R. 35.103(a); 28 C.F.R. 35.130(b)(5)]. (This requirement is
spelled out more specifically in the Title II regulation, than in the
Section 504 regulation.)
Example: Has this school district discriminated in awarding a
contract?
A school district rejects the bid of, and refuses to contract
with, a food service company to operate its cafeteria because the
company employs individuals with physical and cognitive disabilities.
The company submitted the lowest qualified bid and is fully qualified
to perform all the functions set out in the request for bids. This
action is a violation of Title II.
Licenses or Certification
A school district that operates a licensing or certification
program may not discriminate against qualified individuals with
disabilities on the basis of disability in its licensing and
certification activities [28 C.F.R. 35.103(a); 28 C.F.R.
35.130(b)(6)]. A school district may not establish requirements for
the programs or activities of licensees or certified entities that
subject qualified individuals with disabilities to discrimination on
the basis of disability. Although licensing standards are covered by
Title II, the licensee's activities themselves are not covered. An
activity does not become a "program or activity" of a school district
merely because it is licensed by the school district.
Discrimination Based on Association with Persons with Disabilities
Although discrimination based on association with persons with
disabilities is covered in the general prohibitions of the Title II
regulation, it is discussed in this Guide in Chapter Two.
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Exceeding the Title II Requirements
Title II permits a school district to provide benefits,
services, or advantages to individuals with disabilities, or to a
particular class of individuals with disabilities, beyond those
required by the regulation [28 C.F.R. 35.130(c)]. This means that
school districts may provide programs, services, and benefits that
are designed only to benefit individuals with disabilities without
incurring additional obligations to nondisabled persons or to other
classes of individuals with disabilities.
Example: Is this special program prohibited under Title II?
A school has organized an after-school study group with tutoring
assistance to encourage students with learning disabilities in their
academic subjects. In order to encourage these students to read as
much as possible, one component of the program encourages the
students to bring in personal projects that involve reading, but are
not related to the school's program, for assistance by the tutors.
Participation in this program is voluntary and is not included as
part of the school's obligation to provide FAPE to any student. The
establishment of this program does not require the school to
establish a similar program for students with other disabilities or
for nondisabled students. It is also important to note that the
school may not exclude students with learning disabilities from any
other tutoring program in which they are qualified to participate.
Moreover, because participation in the special tutoring program is
not part of the school's obligation to provide FAPE to any student,
the school may not _require any student with a learning disability
to participate in this special program.
ILLEGAL USE OF DRUGS
Although the illegal use of drugs is covered in the general
prohibitions of the Title II regulation, it is discussed in this
Guide in Chapter Two.
SMOKING
Title II does not affect the right of a school district to
prohibit smoking or impose restrictions on smoking in its facilities.
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MAINTENANCE OF ACCESSIBLE FEATURES
Although the maintenance of accessible features is covered in
the general prohibitions of the Title II regulation, this requirement
is discussed in Chapter Six of this Guide.
RETALIATION OR COERCION
Although retaliation and coercion is covered in the general
prohibitions of the Title II regulation, this prohibition is
discussed in Chapter Two of this Guide.
PERSONAL DEVICES AND SERVICES
In general, Title II does not require school districts to
provide personal devices such as wheelchairs, prescription eyeglasses
or hearing aids, readers for personal use or study, or services of a
personal nature, including assistance in eating, toileting, or
dressing [28 C.F.R. 35.103(a); 28 C.F.R. 35.135]. This provision
serves as a limitation on the school district's obligation to comply
with other Title II requirements, including the duty to provide
auxiliary aids and services to facilitate communication, and the duty
to modify policies, practices, and procedures to ensure
accessibility. __This provision does not affect the obligation of a
school district to provide a personal device or service in the form
of special education or a related aid or service, if that device or
service is necessary to provide FAPE to the individual _student.
Examples: Is the school district required to honor these requests?
1. A parent with a severe mobility impairment volunteers to
chaperon a class trip. The parent informs the school district that
it must provide her with an attendant to assist her in eating,
toileting, and dressing. Under the facts of this case, Title II would
not require the school district to provide the personal services
required by the parent.
2. A child with a disability needs clean intermittent
catheterization (CIC) in order to participate in a regular
kindergarten program. The school district objects to providing this
service on the basis that this is a personal service not required by
Title II. Because in this case the CIC is a related aid or service
that is required to provide FAPE to a school-age child, Title II
would require that the CIC be provided.
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IMPLEMENTATION
Nondiscrimination Policies and Practices
This section describes a process for conducting the following
activities:
-- Identify the subcommittee (if any)
-- List programs, activities, and services
-- Collect and document policies and practices
-- Define the survey's scope
-- Conduct the review
-- Assess findings and document changes needed
-- Obtain comments
Implementation
Public school systems are required to review both written
policies and actual operating procedures to ensure that people with
disabilities are not subjected to discrimination. School systems can
use this self-evaluation review process to organize and review their
written and unwritten policies for compliance with Title II. Findings
can then be analyzed to identify where changes are needed to permit
people with disabilities to participate fully in the full range of
programs, activities, and services offered by the school system and
enjoy their full benefits.
Title II contains broad prohibitions against discrimination.
Because the concerns related to FAPE are distinct and specific,
public school systems will need to evaluate policies and procedures
that affect school-age children separately from the general policies
and practices pertinent to other audiences (such as parents and
members of the general public).
The Self-Evaluation Review Form presented in this chapter may be
used by a public school system to evaluate its nondiscrimination
policies and practices, except in the area of employment. (See
Chapter Five, __Requirements for Employment Policies and _Practices).
The review form is divided into two sections:
I. Review of Policies and Practices Governing the Provision
of FAPE
II. General Review of Policies and Practices that Govern
Programs, Activities, and Services of Public School Systems
Seven basic steps to complete a self-evaluation are described
below. Steps 1-4 should be completed _before the Self-Evaluation
Review Form is completed (Step 5). Steps 6-7 should be addressed
_after the Self-Evaluation Review Form is completed.
Step 1. Identify the Subcommittee (if any)
Your school district may wish to have the ADA compliance team
conduct the policies and practices review or identify a separate
policies and practices subcommittee for this purpose. Of course, the
ADA coordinator should participate in the review, along with those
who have the greatest familiarity with current policies and
practices. This generally would include regular and special
education senior staff, school psychologists, coordinators for
special events and after-hours programs, coordinators for athletics
and other major program areas, and those who have the greatest
familiarity with issues that have arisen in the past.
__Worksheet 4-1 may be used to document the membership of the
subcommittee that will review the school system's policies and
practices to ensure _compliance.
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Step 2. List Programs, Activities, and Services
In order to conduct your review of policies and practices, you
will need a working list of all programs, activities, and services
offered by the school system, along with a concise description of
each (e.g., purpose, scope, type of activities, number of disabled
persons served). If you did not collect this information at the
planning phase of your self-evaluation, you will want to collect it
before you initiate your self-evaluation for nondiscrimination
policies and practices. (See Chapter Three, _Planning _for
_Compliance.)
Step 3. Collect and Document Policies and Practices
The policies and practices subcommittee will also need to
appreciate the "universe" of policies and practices pertinent to
school system operations. As for the initial list of programs, if you
have collected this information at the planning phase of your process
you need not do so again. If you have not, you should ask program
area representatives to forward all policy documentation pertinent to
programs, activities, services, and practices of the school system.
This information may be collected at the same time as program
summaries. (See Chapter Three, _Planning _for _Compliance.)
Step 4. Define the Survey's Scope
In order to make effective decisions about how best to conduct
your review, you need to review the program data received and
summarize it in a way the subcommittee can use. By analyzing program
information as a subcommittee, you can focus on aspects of programs
that need to be examined and determine the conditions that must be
present for a person with a disability to fully participate in the
various programs, activities, and services of the school system. This
preliminary information will help the subcommittee analyze the data
returned through the survey and recognize where discriminatory
practices are occurring, regardless of whether their effects are
intended.
__Worksheets 4-2 and 4-3 may be used to perform this preliminary
analysis. You will want to fill out all portions of these worksheets
except the fourth column, "needed changes to policy or practice."
This will be filled out after the policies and practices
questionnaires have been completed and reviewed by the _subcommittee.
Step 5. Conduct the Review
Once you have agreed on a survey instrument and an approach, you
are ready to conduct the survey throughout your school
* Print Page 83
system. It is important to ensure that the instrument is introduced
in a manner that will stress its importance, build understanding of
the need for the information requested and how it will be used, and
encourage honest responses.
__Worksheet 4-4, Parts I and II, contains suggested questions
for the two primary areas of concern to school systems: those
policies and procedures related to FAPE and those pertinent to
general nondiscrimination practices that affect a wide range of
audiences. This Self-Evaluation Review Form is only one tool that may
be used by public school systems to evaluate their policies and
practices for compliance with Title II. Since the characteristics of
programs, services, activities, and practices of public school
systems vary, school systems are encouraged to modify this review
form to meet their specific _needs.
Step 6. Assess Findings and Document the Changes Needed
Once survey results are received, you will want to review them
to determine where existing policies and practices must be modified,
or new ones implemented, to ensure that individuals with disabilities
fully participate in the programs, activities, and services of the
public school system.
__Worksheets 4-2 and 4-3 contain a column where "needed changes
to policy or practice" may be identified. While the worksheets do not
provide a space for listing problem areas encountered, you may find
it useful to do so as each program area is reviewed. You will then
have a written record for your discussion of required _changes.
Step 7. Obtain Comments
You will want to document problem areas, and the changes you
intend to make to address them, in a brief but coherent report. This
document should be circulated to appropriate persons who have the
knowledge and expertise to determine whether the remedies you have
decided to propose will address the problems effectively. Remember,
you must allow individuals with disabilities and other interested
persons to participate in the self-evaluation process by submitting
comments.
Once comments are assessed and final decisions made, changes
should be made expeditiously. Deadlines for such changes have passed,
and complete compliance is mandatory immediately.
* Print Page 84
Worksheet 4-1
POLICIES AND PRACTICES SUBCOMMITTEE
SCHOOL DISTRICT: ----
NAME (ADA coordinator): ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Identify members of the subcommittee responsible for conducting
the review of policies and practices and record basic data about the
subcommittee.
Policies and practices subcommittee role or mission in ensuring
ADA compliance: ----
Meeting frequency/location: ----
Procedures for convening policies and practices subcommittee: ----
Chair: ----
Policies and Practices Subcommittee Membership
In this empty table, columns follow each other in this order:
Name: Title; Area Represented/Skills.
* Print Page 85
Worksheet 4-2
SUMMARY OF REQUIRED CHANGES IN THE PROVISION OF FAPE
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Define the scope of the survey by completing all columns except
the fourth. When all policies and practices questionnaires (i.e.,
Worksheet 4-4) have been completed and reviewed by the subcommittee,
complete the fourth column. You will probably wish to use one full
page for each program area.
In this empty table, columns follow each other in this order:
Program, Service, Activity, or Practice: Authority or Governing
Policy; Conditions Required for Participation by People with
Disabilities; Needed Changes to Policy or Practice (Provide Time
Frames); Responsible Unit/Official.
* Print Page 86
Worksheet 4-3
SUMMARY OF REQUIRED CHANGES IN PROGRAMS, ACTIVITIES AND SERVICES
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Define the scope of the survey by completing all columns except
the fourth. When all policies and practices questionnaires (i.e.,
Worksheet 4-4) have been completed and reviewed by the subcommittee,
complete the fourth column. You will probably wish to use one full
page for each program area.
In this empty table, columns follow each other in this order:
Program, Service, Activity, or Practice: Authority or Governing
Policy; Conditions Required for Participation by People with
Disabilities; Needed Changes to Policy or Practice (Provide Time
Frames); Responsible Unit/Official.
* Print Page 87
Worksheet 4-4
SELF-EVALUATION REVIEW FORM, PART 1
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
REVIEW OF POLICIES AND PRACTICES GOVERNING THE PROVISION OF FREE
APPROPRIATE PUBLIC EDUCATION
A. _Free _Education. Provision of a free education means the
provision of regular or special education and/or related aids and
services without cost to the child with a disability or his/her
parents or guardians, except for fees equally imposed on nondisabled
children or their parents or guardians. The cost of a program may
include tuition, related services, and other costs associated with
the educational placement of a child with a disability. Also, if a
school district places a student in a public or private program,
other than one operated by the school system, the school system
remains responsible for coverage of financial obligations associated
with the placement.
1. Identify any programs and activities operated by the school
district for which children with disabilities are charged a fee that
is not imposed on nondisabled children. If any, please explain the
reason for the additional fee for each program or activity
identified.
2. List any fees imposed on a child with a disability placed
in a public or private educational program by the school district to
provide the child with a free appropriate public education. If any,
please explain the reason for the additional fee for each program or
activity identified.
3. If there are programs and activities operated by the school
district for which children with disabilities are charged a fee that
is not imposed on nondisabled children, or if a school district
imposes any fees on a child with a disability placed in a program
other than the one it operates in order to provide free appropriate
public education to that child, document areas where new or modified
policies and practices are needed and recommend solutions to
identified problems. (For example, new policies and practices would
be needed if a school district places a student in a program it does
not operate in order to ensure the provision of a free appropriate
public education, but does not ensure that adequate transportation to
and from the program is provided at no greater cost to the parents or
guardian than would be incurred if the student was placed in the
district's program.)
B. _Educational _Setting. Promoting integration is a
fundamental principle of Title II. Public school systems must
provide each child with a disability an equal opportunity to
participate in programs, activities, and services in the regular
education setting, unless it can be demonstrated that the child
requires a separate or different program in order to receive an
appropriate education.
1. Describe the policies and procedures (written or unwritten)
used by the school system to ensure that a child with a disability in
the regular education setting is provided an individualized
educational program to meet the particular needs of the child.
* Print Page 88
2. List the criteria used by the school system to determine
when a child with a disability cannot participate in the regular
education setting, even with the use of supplementary aids and
services.
3. List "separate or different" programs, activities and
services designated only for children with disabilities. If
applicable, describe how they contribute to affording children with
disabilities an equal opportunity to benefit.
4. Describe policies and procedures used by the public school
system to ensure that regular and special education teachers (and
other specialists) coordinate in providing educational services to
children with disabilities who participate in regular or special
education.
5. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
C. __Nonacademic and Extracurricular _Activities. Public
school systems must ensure that children with disabilities are
afforded an equal opportunity to participate in nonacademic and
extracurricular activities and services to the maximum extent
appropriate to the needs of the child. Nonacademic and
extracurricular services and activities may include physical
education classes, counseling services, special interest groups or
clubs, extended-day care, meals, recess periods, recreational
athletics, and transportation.
1. List the nonacademic and extracurricular programs and
activities offered by the school district in which a child with a
disability may not participate. Please explain.
2. Identify any policy that would prohibit a child with a
disability from participating in a nonacademic or extracurricular
program, activity, or service offered by the school system. Please
explain.
3. Describe the policies and procedures (written or unwritten)
used by the school system to ensure that children in special
education are afforded an equal opportunity to participate in
nonacademic and extracurricular activities with nondisabled children.
4. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
D. __Evaluation and Placement of Children with _Disabilities.
Public school systems are required to establish standards and
procedures for the evaluation and placement of children with
disabilities who, because of their disability, need or are believed
to need special education and/or related aids and services. Children
with disabilities must be afforded the maximum possible integration
with nondisabled children.
1. _Pre-placement _Evaluation. School systems must conduct an
evaluation of any child who, because of a disability, needs or is
believed to need special education and/or related aids or services.
This evaluation must take place before taking any action with respect
to the initial placement of the child and before any subsequent
significant change in placement.
a. Describe the pre-referral policies and procedures used by
school personnel prior to evaluation of a child with suspected
disabilities, if any.
b. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
* Print Page 89
2. __Evaluation Standards and _Procedures. School districts
must establish standards and procedures for initial and continuing
evaluation and placement decisions. These procedures must ensure that
tests and other evaluation materials: (1) have been validated for
the specific purpose for which they are used and are administered by
trained personnel in conformance with the instructions provided by
their producer; (2) include materials tailored to assess specific
areas of educational need and not merely materials that are designed
to provide a single general intelligence quotient; and (3) are
selected and administered so as to best ensure that, when a test is
given to a student with impaired sensory, manual or speaking skills,
the test results accurately reflect the student's aptitude or
achievement level (or whatever other factor the test purports to
measure) rather than reflecting the student's impaired sensory,
manual, or speaking skills (except where those skills are the factors
the test purports to measure).
Periodic re-evaluation of a child who receives special education
and/or related aids and services is required. Also, re-evaluation is
required before any significant change in placement for a child with
a disability.
School districts must take steps to ensure that students with
limited English proficiency are not misassigned to special education
classes because of their inability to speak, read, write, and
understand English. Such steps may include: assessing the student in
his or her own language; ensuring that accurate information regarding
the student's language skills is taken into account in evaluating
assessment results; and comparing results obtained when a part of the
assessment is repeated in the student's first language.
a. List and describe the tests and other evaluation materials
used for the initial and continuing evaluation of children with
suspected disabilities.
b. Describe procedures used by the public school system to
ensure that selected tests and other evaluation materials only
measure what they purport to measure when administered to a child
with particular disabilities.
c. Describe the standards and procedures that are used to
ensure that tests are administered by trained personnel in
conformance with the instructions provided by their publisher.
d. Describe policies and procedures used by the school system
to re-evaluate a child with a disability who receives special
education or related aids and services.
e. Describe procedures used by the public school system to
ensure that tests and other evaluation instruments are appropriately
administered to a child with a disability whose primary home language
is not English.
f. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
3. __Educational Placement of Children with _Disabilities.
Placement decisions must be made by a group of persons, including
persons knowledgeable about the child and the meaning of the
evaluation data and placement options. The placement team must
consider a variety of documented information for each student. The
information must come from several sources, including aptitude and
achievement tests, teacher recommendations, reports on physical
condition, social or cultural background, and adaptive behavior. The
school district must also establish procedures to ensure that
information obtained from all sources is
* Print Page 90
documented and carefully considered. When the school district has
identified the educational and related services needed by a child
with disabilities, it must develop a plan and must provide services
as described in the plan. The placement team must ensure that the
placement provides for the education of the student with disabilities
with students who do not have disabilities to the maximum extent
appropriate to the needs of the student with disabilities.
a. Provide the title and responsibilities of key personnel on
a standard placement team.
b. List the basic sources of information drawn upon to make
educational placement decisions about a child with a disability.
c. Describe the procedures to ensure that all relevant
information is incorporated into placement recommendations.
d. Describe the method used by the placement team to ensure
that the educational placement recommended for a child with a
disability is documented in sufficient detail to ensure that the
individual educational needs of the child are met.
e. If a school district is unable to provide a child with a
disability with an appropriate education and the district places the
child in, or refers the child to, a program it does not operate,
describe the procedures used by the district to ensure that the
education offered by the public or private entity is in compliance
with Title II and Section 504.
f. Describe criteria and procedures used by the public school
system to ensure that a student with a disability is being educated
with students who do not have disabilities to the maximum extent
appropriate to his or her needs.
g. Document areas where new or modified policies and
practices are needed and recommend solutions to identified problems,
as needed.
E. _Procedural _Safeguards. A public school system is
required to establish and implement a system of procedural safeguards
with respect to the identification, evaluation, and placement of
qualified children with disabilities in the school district.
1. Describe the information included in notices to parents or
guardians regarding identification, evaluation, and placement,
respectively.
2. Describe procedural safeguards established to ensure that
the parents or guardians of a child with a disability are provided an
opportunity to review all materials that are used as the basis for
decisions about the child with respect to identification, evaluation,
and placement.
3. Describe procedural safeguards established to ensure that
the parents or guardians of a child with a disability are informed
of: (1) their right to due process; (2) their opportunity to
participate in a due process hearing; (3) their right to be
accompanied and advised by representative counsel of their choosing;
and (4) their right to appeal a hearing decision.
4. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
* Print Page 91
Worksheet 4-4
SELF-EVALUATION REVIEW FORM, PART 2
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
GENERAL REVIEW OF POLICIES AND PRACTICES THAT GOVERN PROGRAMS,
ACTIVITIES, AND SERVICES OF PUBLIC SCHOOL SYSTEMS
A. __Denial of Opportunity to Participate or _Benefit.
People with disabilities who are otherwise qualified to participate
in the programs, activities, and services of a public school system
cannot be barred from participation. Public school systems are
prohibited from excluding not only people with disabilities, but also
friends or family members associated with them.
1. Identify any circumstances in which a person with a
disability or anyone associated with the person would, because of the
person's disability, be restricted from or denied participation in a
program, activity, service, or benefit offered by the public school
system.
2. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
B. __Provision of Unequal Opportunity to Benefit _Prohibited.
Title II requires that people with disabilities receive the same
opportunity as nondisabled people to participate in and benefit from
the programs, activities, and services of a public school system.
1. Identify any circumstances in which there is greater
opportunity for a nondisabled person than for a person with a
disability to participate in a program, activity, service, or benefit
that is generally available to both.
2. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
C. __Provision of Benefit or Service that is Not Equally
Effective _Prohibited. In providing general services and benefits, a
school district must ensure that services provided to qualified
individuals with disabilities are effective enough to afford them
equal opportunity to obtain the same result, gain the same benefit,
or reach the same level of achievement as nondisabled individuals.
1. Describe procedures used to ensure that the public school
system provides its general services and benefits to qualified
individuals with disabilities in a manner that is effective enough to
afford them an equal opportunity to obtain the same result, gain the
same benefit, or reach the same level of achievement as nondisabled
individuals.
2. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
D. __Provision of Separate or Different Benefits _Prohibited.
A public school system may not provide separate or different
programs, services, or benefits for individuals with disabilities,
unless
* Print Page 92
necessary to provide them with equally effective participation as
afforded to nondisabled persons. Even when separate or different
programs are permitted, the public school system must consider the
following requirements:
-- First, each qualified person with a disability must be
given the same opportunity as nondisabled persons to participate in
the regular offerings of the public school system.
-- Second, each qualified person with a disability must be
given the opportunity to participate in and benefit from the
offerings of the public school system in the most integrated setting
appropriate to the needs of that individual.
-- Third, the provision of separate or different services is
permitted only when necessary to provide an equal opportunity to
qualified persons with disabilities.
1. Identify any separate program, activity, service, or
benefit offered by the public school system that contributes to
affording people with disabilities an equal opportunity.
2. Describe any circumstances in which a person with a
disability would be prohibited from participating in regular
(non-separate) activities because of the provision of separate
activities.
3. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
E. _Surcharges _Prohibited. A public school system is
required to make its programs, activities, services, and benefits
available to qualified individuals with disabilities to the extent
that they are available to other participants in the program.
Surcharges may not be imposed on individuals with disabilities to
cover the cost of measures necessary to provide nondiscriminatory
treatment.
1. List each program, activity, service, or benefit for which
the public school system charges a fee.
2. Identify any circumstances in which a person with a
disability would be asked to pay a fee or meet any other requirements
not imposed on other program participants.
3. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
F. Reasonable Modifications in Policies, Practices, and
Procedures. Public school systems are required to review their
policies, practices, and procedures to determine the effect of each
one on participation by individuals with disabilities. If public
school systems identify any policy, practice, or procedure that has a
discriminatory effect on individuals with disabilities, the school
system is required to modify it unless the modification would result
in a fundamental alteration of the nature of the program, service, or
activity.
1. Describe the procedures used to inform the public that the
program is prepared to make reasonable modifications to accommodate
any qualified individual with a disability and to respond to requests
for modifications.
2. Identify procedures used to inform appropriate school
personnel of the need to make reasonable and effective modifications
to provide otherwise qualified individuals with disabili-
* Print Page 93
ties equal opportunity to participate in the programs, services, and
activities operated by the public school system.
3. Identify the procedure used by the public school system to
determine whether a policy or practice modification would
fundamentally alter the nature of the program. If any, please
describe.
4. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
G. _Eligibility _Criteria. A public school system may not use
eligibility criteria for participation in its programs or receipt of
its benefits and services that screen out or deny individuals with
disabilities full and equal participation in programs, services or
benefits, unless the eligibility criteria are necessary for and
relevant to the program, activity, service, or benefit being offered.
1. List the programs, activities, services, and benefits offered
by the public school system and the _essential eligibility
requirements of each.
2. Identify any criteria that may limit or screen out
individuals with disabilities from participation in the programs,
activities, services, and benefits offered by the public school
system. Please explain.
3. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
H. __Criteria or Methods of _Administration. School systems may
not maintain policies or actual practices that exclude qualified
individuals with disabilities on the basis of their disabilities.
1. List each program, activity, service, and benefit offered by
the school system and identify relevant criteria or methods of
administration.
2. Determine whether adherence to any criterion or method of
administration excludes or segregates individuals with disabilities
on the basis of their disability from full participation in each
program, service, activity, or benefit offered by the public school
system. If any, please explain.
3. Determine whether adherence to any criterion or method of
administration perpetuates discrimination against any individual with
a disability by another public entity that is under common
administrative control or is in the same state as the public school
system. If any, please explain.
4. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
I. __Selecting Sites and _Locations. Public school systems may
not select sites or locations for facilities that have the effect of
excluding or denying individuals with disabilities the benefits of or
participation in the programs, activities, and services of the public
school system, or otherwise subjecting qualified individuals with
disabilities to discrimination. (This does not apply to construction
of additional buildings at an existing site.)
1. Determine whether the terrain or any other feature of a site
or location under consideration would have any adverse effect on
participation by a qualified individual with a disability.
* Print Page 94
2. Describe criteria utilized in the selection of sites or
locations for facilities that are designed to ensure that qualified
individuals with disabilities are not subjected to discrimination.
Are these criteria utilized every time sites or locations are being
selected for facilities? Please explain.
3. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
J. _Significant _Assistance. Public school systems that provide
significant assistance to another agency, organization, or individual
retain responsibility for ensuring that the other entity or
individual does not discriminate on the basis of disability. In
determining whether assistance to another entity or individual is
significant, a public school system should consider the
substantiality of the relationship (e.g., financial support) and
whether the activities of the other entity or individual relate so
closely to the school system's programs that these activities could
fairly be considered activities of the public school system.
1. List any organization, program, or individual that receives
significant assistance from the public school system.
2. Describe the policies, procedures, and practices used by the
public school system to ensure that agencies, organizations, and
individuals that receive significant assistance do not discriminate
against individuals with disabilities.
3. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
K. _Procurement _Contracts. Public school systems may not
discriminate on the basis of disability in selecting procurement
contractors.
1. List any organizations, programs, or individuals with which
the public school system contracts services.
2. Identify the policies and actual operating practices that
govern contract relations to determine whether provisions are
included to ensure that programs, activities, services, and benefits
provided by contractors on behalf of the public school system are
free of discrimination. If none, please explain.
3. List any circumstances in which a consideration related to
disability would influence the choice of a procurement contractor.
Please explain.
4. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
L. _Licenses _or _Certification. A public school system may not
deny a license or certification to any person with a disability who
meets the essential eligibility requirements for the license or
certification. Eligibility requirements cannot include criteria that
directly or indirectly screen out people with disabilities unless the
criteria are necessary to the performance of the activity which is
the object of the license or certificate.
1. List any licenses or certifications issued by the public
school system.
* Print Page 95
2. List any eligibility criteria for licenses and certificates
that may tend to screen out people with disabilities. For each
potentially exclusionary criterion, identify why the criterion is
necessary to the performance of the activity to which the license or
certificate applies.
3. Document areas where new or modified policies and practices
are needed and recommend solutions to identified problems, as needed.
* Print Pages 96-97
** CHAPTER FIVE REQUIREMENTS FOR EMPLOYMENT POLICIES AND PRACTICES
This chapter reviews ADA requirements related to the employment
policies and practices of public school systems. As explained
previously, Title II, Subpart C, of the ADA addresses employment
discrimination, but references Title I and Section 504 for specific
requirements concerning employment. However, the Rehabilitation Act
Amendments of 1992 amended Section 504 to incorporate Title I
employment standards. As a result, all school districts are subject
to Title I standards. The chapter, therefore, focuses primarily on
employment standards under the regulation implementing Title I of the
ADA. Since Section 504 has been in existence for over twenty years
and most school districts have had experience complying with the old
employment requirements of Section 504, significant differences
between the requirements of Title I and the old employment standards
of Section 504 are also highlighted throughout the chapter.
The chapter begins with an overview of requirements related to
employment under Titles I and II of the ADA as well as under Section
504. The chapter presents a summary of the applicability of these
legal standards, their basic requirements, and the nature of their
interrelationships. Next, two definitions critical to the ADA's
approach to nondiscriminatory employment are reviewed: the concept of
a "qualified person with a disability" in the context of employment
and the delineation of "essential functions" of a job. A discussion
of the key concept of "reasonable accommodation" follows. Numerous
examples of reasonable accommodations are provided. The concept of
"undue hardship"--the counterbalance to the requirement to provide
reasonable accommodations--is also presented.
The chapter then reviews specific elements of the
employer-employee relationship, beginning with requirements for
qualification standards and selection criteria. The chapter presents
nondiscrimination requirements applicable to the hiring process,
reviewing requirements for job advertisements and notices,
pre-employment inquiries, and testing. Next, it addresses post-offer
and employee medical examinations and inquiries. The chapter reviews
nondiscrimination requirements that prohibit actions that limit,
segregate, or classify applicants and employees because of a
disability. It also discusses how these requirements apply to the
provision of health insurance benefits plans, opportunities for
advancement, performance standards, and training opportunities.
* Print Page 98
The chapter reviews Title I requirements that prohibit
discrimination against employees or potential employees that results
from contractual relationships of the employer. It also addresses
Title I requirements that prohibit discrimination on the basis of
relationship or association with persons with disabilities or
organizations intended to benefit persons with disabilities, as well
as Title I requirements that prohibit retaliation and coercion that
result from the lawful exercise of rights under the ADA. Finally,
defenses to charges of employment discrimination on the basis of
disability are discussed.
At the end of the chapter, a practical guide to conducting the
self-evaluation of employment policies and practices is presented.
The worksheets provided may be used to conduct an initial
self-evaluation or to conduct periodic reviews to identify areas in
which modifications may be needed to remain in compliance.
AN OVERVIEW OF APPLICABLE LEGAL STANDARDS
Title II prohibits all public entities from discriminating
against qualified individuals with disabilities in their employment
policies and practices [28 C.F.R. 35.140(a)]. For public school
systems directly subject to Title I (virtually all), Title II adopts
standards contained in Title I [28 C.F.R. 35.140(b)(1)]. Title I,
which is primarily enforced by the U.S. Equal Employment Opportunity
Commission, has prohibited job discrimination for all state and local
government employers with at least 25 employees since July 26, 1992
[29 C.F.R. 1630.2(e)(1)]. Since July 26, 1994, Title I has
prohibited job discrimination by state and local government employers
with 15 or more employees [29 C.F.R. 1630.2(e)(1)].
For public school systems that are not directly subject to Title
I, Title II adopts the standards of Section 504 [28 C.F.R.
35.140(b)(2)]. Under Section 504, public school systems that receive
federal financial assistance, regardless of the number of employees,
are prohibited from discriminating in employment in their programs
and activities. Because Section 504 has been in existence for over
twenty years, most public school systems have had experience in
complying with Section 504. As discussed in Chapter One and the
introduction to this chapter, it is important to note, however, that
all school districts are actually subject to Title I standards
because the Rehabilitation Act Amendments of 1992 provide that
complaints alleging employment discrimination under Section 504 are
now to be judged by the standards of Title I.
In general, requirements under Title I of the ADA are more
detailed and comprehensive than the old employment requirements under
Section 504. There are also a few significant differ-
* Print Page 99
ences between the requirements of Title I and the old employment
requirements of Section 504, which are addressed in this chapter. It
is essential that school districts become thoroughly familiar with
the Title I requirements because all school districts are subject to
Title I standards.
OVERVIEW OF LEGAL REQUIREMENTS
The basic mandate of Title I is that an employer cannot
discriminate against an otherwise qualified person with a disability
in any aspect of the employment relationship. Activities that are
part of the employment relationship include recruitment, the
application process, testing, interviewing, hiring, assignments,
evaluation, discipline, medical examinations, compensation,
promotion, on-the-job training, layoff/recall, termination, leave,
benefits such as health insurance, and any other terms, conditions,
and privileges of employment.
28 C.F.R. 35.140 Employment discrimination prohibited. (a) No
qualified individual with a disability shall, on the basis of
disability, be subjected to discrimination in employment under any
service, program, or activity conducted by a public entity.
Your school system's self-evaluation must include a thorough
examination of its employment policies and practices to ensure that
it is in compliance with the ADA. Under the ADA, the following
actions are prohibited:
1. Refusing to make reasonable accommodation to the known
physical or mental limitations of a qualified applicant or employee
with a disability, unless the public entity can prove that the
accommodation would pose an undue hardship.
2. Denying employment opportunities to a job applicant or
employee who is an otherwise qualified individual with a disability,
if such denial is based on the need of the public entity to make
reasonable accommodation to the physical or mental impairments of the
employee or applicant.
3. Using qualification standards, employment tests, or other
selection criteria that screen out, or tend to screen out, an
individual with a disability, unless these criteria are job-related
and consistent with business necessity.
4. Making pre-employment inquiries related to an individual's
disability or medical history or refusing to hire an individual on
the basis of the person's disability or medical history (unless the
rejection is job-related and consistent with business necessity, and
job performance cannot be accomplished with reasonable
accommodation).
5. Failing to select and administer tests concerning
employment so as to ensure that, when a test is administered to an
applicant or employee with impaired sensory, manual, or speaking
skills, the test results accurately reflect the
* Print Page 100
individual's aptitude or achievement level (or whatever other factor
the test purports to measure) rather than reflecting the person's
impaired sensory, manual, or speaking skills (except where those
skills are the factors that the test purports to measure).
6. Making medical inquiries or conducting medical
examinations of applicants or employees, or taking actions against
individuals with disabilities based on medical or related
information, in a manner prohibited by the ADA. (See discussion on
[print] pages 114-118.)
7. Limiting, segregating, or classifying a job applicant or
employee because of his or her disability in a way that adversely
affects the individual's employment opportunities.
8. Participating in a contractual or other arrangement or
relationship that subjects either a qualified applicant or an
employee with a disability to discrimination.
9. Utilizing standards, criteria, or methods of
administration (a) that have the effect of discrimination on the
basis of disability; or (b) that perpetuate the discrimination of
others who are subject to common administrative control. (See
discussion on [print] page 76.)
10. Denying employment opportunities to or otherwise
discriminating against a qualified individual, whether or not that
individual has a disability, because he or she has a relationship or
association with a person with a disability.
11. Discriminating against an individual because he or she
has opposed an employment practice of the employer; has filed a
complaint; or has testified, assisted, or participated in an
investigation, proceeding, or hearing to enforce provisions of the
ADA.
Except for the requirement mentioned in item 9, which is
addressed on [print] page 76, these basic requirements will be
discussed in more detail following a review of two key definitions
essential to understanding and complying with the ADA's
employment-related regulations.
BASIC DEFINITIONS
Who is a "Qualified Individual with a Disability?"
As mentioned in Chapter Two, employers may not discriminate
against "qualified individuals with disabilities," either as job
applicants or employees. For the purposes of employment, a
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qualified individual with a disability is a person with a disability
who satisfies the requisite skill, experience, and education and
other job-related requirements for the job and can perform the
essential functions of the job, with or without reasonable
accommodation [29 C.F.R. 1630.2(m)].
29 C.F.R. 1630.2 Definitions. (m) __Qualified individual with
a _disability means an individual with a disability who satisfies the
requisite skill, experience, education and other job-related
requirements of the employment position such individual holds or
desires, and who, with or without reasonable accommodation, can
perform the essential functions of such position.
Clearly, all individuals with disabilities are not necessarily
"qualified individuals with disabilities."
Example: Are these qualified individuals with disabilities?
A school district's budget office is hiring for a certified
public accountant position. Jill, who has a psychiatric disability,
applies for the position. She has some bookkeeping experience, but
she is not a certified public accountant. The district can reject
Jill because she is not qualified for the position. On the other
hand, Lisa, who has a visual disability, applies for the position.
She is a certified public accountant and can perform all essential
job functions. Lisa is qualified for the position.
Even though, in the example given, Lisa is clearly qualified for
the certified public accountant position, the district does not have
to hire her. There is no obligation to prefer a qualified applicant
with a disability over other applicants. The employer is free to
select the most qualified applicant available. However, if selection
criteria screen out, or tend to screen out, a qualified individual
with a disability, the criteria must be job-related and consistent
with business necessity. In addition, an employer cannot refuse to
hire an applicant with a disability because he or she needs an
accommodation to perform an essential function of the job (in Lisa's
case, perhaps a magnification device) or because he or she cannot
perform a marginal function of the job (in Lisa's case, perhaps
occasional document filing). If it were found that the district
eliminated Lisa as an applicant on the basis of her disability or
hired someone clearly less qualified to avoid having to accommodate
her disability, the district would not be in compliance with Title I.
What are the "Essential Functions" of a Job?
A person is a qualified individual with a disability only if he
or she can perform the _essential functions of a job (with or without
reasonable accommodation). If such a person cannot perform functions
marginal or incidental to job performance, the individual is still
qualified. Clearly, it is critical that employers thoughtfully
analyze and document job requirements in a way that clarifies the
distinction between essential and non-essential functions of a job.
Prior to the Rehabilitation Act Amendments of 1992, the Section
504 regulation did not define the term "essential
* Print Page 102
functions." However, Title I incorporates the understanding of
"essential functions" that is presented in the Appendix to the
Section 504 regulation [Appendix A to 34 C.F.R. Part 104, at 374
(1994)]. The term "essential functions" refers to the _fundamental
elements of a job.
29 C.F.R. 1630.2 Definitions. (n) _Essential _functions. (1)
_In _general. The term "essential functions" means the fundamental
job duties of the employment position the individual with a
disability holds or desires. The term "essential functions" does not
include the marginal functions of the position.
Factors to be weighed in determining whether a job function is
essential include:
1. whether the reason the position exists is to perform the
function;
2. whether a limited number of employees are available to
perform the function, or whether the performance of the job function
can be distributed among them; and/or
3. whether the function is a highly specialized one that
requires special expertise or ability the person hired must have to
be able to perform it [29 C.F.R. 1630.2(n)(2)].
Evidence that may be considered in determining whether a
particular job function is essential includes, but is not limited to,
the following:
-- written job descriptions prepared before advertising or
interviewing applicants;
-- the terms of a collective bargaining agreement;
-- the amount of time spent on the job performing the
function;
-- the work experience of past employees in the job;
-- the work experience of current employees in the same or
similar jobs;
-- the consequences of not requiring that the function be
performed; and/or
-- the employer's judgment as to which functions are
essential [29 C.F.R. 1630.2(n)(3)].
Examples: Are these individuals able to perform essential job
functions?
1. A public school is hiring for the position of secretary to
the principal. Dorothy, who has multiple sclerosis and uses a
wheelchair, meets all of the qualification standards in terms of
experience, education, and related skills. 70% of the job involves
typing, while 25% of the job involves using the telephone, and 5% of
the job involves
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filing. There is a file clerk who handles the bulk of the filing
duties. The office has a system of upright files and Dorothy is
unable to reach the two top drawers from her wheelchair; however, she
can perform all other job duties. Since she has the requisite skills
and education and can perform the essential functions of the job, and
the filing task is a marginal function, Dorothy is qualified for the
position.
2. Umberto, a public school teacher, has taught successfully
in the school for several years. Last semester he was in a serious
automobile accident and suffered an injury to the head. While gradual
recovery is projected, at present, Umberto has cognitive
difficulties, including difficulty in information retention and
concentration, and psychosocial impairment manifested in
inappropriate outbursts of anger.
After receiving complaints from students, school officials sit
in on several of his courses. A conclusion is reached that, at the
present time, Umberto is unable to communicate clearly to his class
and that angry episodes are alienating his students. After
consultation with Umberto's doctor and a review of medical evidence,
as well as consultation with representatives of a national
disabilities organization familiar with common head injury problems,
school officials conclude that no reasonable accommodation will
enable Umberto to perform his teaching duties during this phase of
his recovery. He is offered a choice of either a temporary unpaid
leave of absence or being placed in a lower-paid administrative
position.
Umberto claims that he has been discriminated against. However,
Umberto is not able to perform essential functions of his job as a
teacher and no reasonable accommodation will enable him to succeed as
a teacher until he recovers further. Therefore, the school
district's actions are not discriminatory.
Job descriptions used to identify essential job functions should
be written to focus on the desired _outcome _or _results of a job,
not the manner in which it is usually performed. Often, reasonable
accommodation will enable an individual with a disability to achieve
the necessary results in a different way from the more typical
approach to the task. What matters is that the desired outcome is
achieved.
If an individual with a disability who is otherwise qualified
cannot perform one or more essential job functions because of his or
her disability, the prospective employer must consider whether there
are accommodations that would enable the person
* Print Page 104
to perform these functions. The following section discusses the
employer's obligation to provide reasonable accommodation and the
limits to that obligation. The section also provides examples of
reasonable accommodation.
THE OBLIGATION TO PROVIDE REASONABLE ACCOMMODATION
Reasonable Accommodation
Employers are required to make reasonable accommodation for
qualified applicants and employees with disabilities who request such
accommodation. Reasonable accommodation means modifications or
adjustments to a job application process, the work environment, the
way in which a job is customarily performed, or employment policies
that enable a qualified individual with a disability to be considered
for the position, perform the essential functions of the job, or
enjoy benefits and privileges of employment equal to those available
to a similarly-situated employee without a disability [29 C.F.R.
1630.2(o)(1)].
29 C.F.R. 1630.2 Definitions. (o)(1) _Reasonable
_accommodation. The term "reasonable accommodation" means:
(i) Modifications or adjustments to a job application process
that enable a qualified applicant with a disability to be considered
for the position such qualified applicant desires; or
(ii) Modifications or adjustments to the work environment, or to
the manner or circumstances under which the position held or desired
is customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position;
or
(iii) Modifications or adjustments that enable a covered
entity's employee with a disability to enjoy equal benefits and
privileges of employment as are enjoyed by other similarly situated
employees without disabilities
Examples of Reasonable Accommodation
Examples of reasonable accommodation include adjusting work
schedules, restructuring the job, reassigning the employee,
acquisition or modification of equipment and devices, providing
qualified readers or interpreters, or modifying the work site [29
C.F.R. 1630.2(o)(2)].
1) _Adjusting _work _schedules. An employer should consider
modification of a regular work schedule as a reasonable accommodation
unless this would cause an undue hardship. Modified work schedules
may include flexibility in work hours or the work week, or part-time
work, where this will not be an undue hardship.
Examples: Are the following adjustments to these individuals' work
schedules reasonable accommodations?
1. Jim, an administrator in a school district's central
office, has a disability, one of the effects of which is
sleeplessness. As a result of Jim's request for a reasonable
accommodation, the district permits Jim to start work at 10 A.M.,
rather than at 9 A.M., the typical starting time for administrators.
Jim then leaves work at 6 P.M., one hour later than the typical time
administrators leave for the day. The district is fulfilling its
obligation to provide reasonable accommodation.
2. Sean, a vice principal with a mental disability, requires
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two hours off, twice weekly, for sessions with a psychiatrist. He
requests a reasonable accommodation. The school district permits Sean
to take longer lunch breaks and to make up the time by working later
on those days. The district is fulfilling its obligation to provide
reasonable accommodation.
Although employers may be required to make adjustments in leave
policy as a reasonable accommodation in some instances, employers are
not required to provide additional paid leave for employees with
disabilities as an accommodation. However, employers should consider
allowing use of accrued leave, advanced leave, or leave without pay,
where this will not cause an undue hardship [__A Technical Assistance
Manual on the Employment Provisions (Title I) of the Americans with
Disabilities _Act, U.S. Equal Employment Opportunity Commission,
January 1992, page III-23].
2) _Restructuring _the _job. Job restructuring as a reasonable
accommodation may involve reallocating or redistributing the marginal
functions of a job. Although an employer is not required to
reallocate essential functions of a job as a reasonable
accommodation, it may be a reasonable accommodation to modify the
essential functions of a job by changing when or how they are done.
Example: Is job restructuring a reasonable accommodation for this
individual?
Rob, who had his left arm amputated as a result of an accident,
has returned to work in the facilities maintenance department using a
prosthesis. He is able to perform all of the essential job functions
of his former position. However, Rob is not able to perform the
marginal function of operating one piece of equipment that cannot be
modified and requires a two-handed, fine motor grasping motion. Since
Rob always works as part of a crew, the duties among the crew are
re-allocated so that other workers perform that task. The school
district is fulfilling its obligation to provide reasonable
accommodation.
3) Reassigning the employee to a vacant position. Although
"reassignment" was not specifically listed as a possible reasonable
accommodation in the Section 504 regulation prior to the
Rehabilitation Act Amendments of 1992, under the Title I regulation,
reassignment may be an appropriate accommodation if an individual is
unable to perform the essential functions of his or her current
position because of a disability. If there is no other accommodation
that will enable the person to perform these functions, or if the
employer can prove that other accommodations would pose an undue
hardship, reassignment to a vacant
* Print Page 106
position should be considered if the individual is qualified for the
position.
Example: Is employee reassignment a reasonable accommodation for this
individual?
Sarah worked as a bus driver for the City Department of
Education. After a serious car accident in which she experienced a
traumatic brain injury, Sarah is unable to drive and is therefore no
longer able to perform the duties required of the position. There is
no reasonable accommodation that would enable Sarah to perform the
essential function of driving a bus safely. However, Sarah is
qualified for a position that has just become vacant in which she
would coordinate transportation for athletic and other special
events. The City Department of Education offers Sarah this job
reassignment as a reasonable accommodation, which fulfills the
agency's duty to provide reasonable accommodation.
4) __Acquiring or Modifying Equipment and _Devices. Purchase of
equipment or devices or modifications to existing equipment may be
effective accommodations for people with many types of disabilities.
There are many devices that make it possible for people to overcome
existing barriers to performing functions of a job. These devices
range from very simple solutions, such as an elastic band that can
enable a person with cerebral palsy to hold a pencil and write, to
"high-tech" electronic equipment that can be operated with eye or
head movements by people who cannot use their hands. There are also
many ways to modify standard equipment so as to enable people with
functional limitations to perform jobs effectively and safely.
Creative analysis of job requirements often results in effective
low-cost accommodations. The following are a few examples of
effective uses of low-cost assistive devices as reasonable
accommodations:
-- Wrist supports for use while typing (available for under
$30) and adjustment of the height of the desk chair may enable a
clerk/typist with carpal tunnel syndrome (an inflammatory disease
that affects the wrists, typically as a result of repetitive motion)
to do his or her job with minimal stress on his or her wrist joints.
-- A detachable extension arm for a rake may enable a
groundskeeper with limited use of one arm to control the rake with
the fully-functional arm.
-- A relatively lightweight mop and a smaller broom may
enable an employee with congenital heart problems to do his or her
job with minimal strain.
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-- A trackball may be used instead of a "mouse" to enable an
individual with poor hand-eye coordination to control the movement of
the cursor on a computer screen.
Example: Is the provision of equipment a reasonable accommodation for
this individual?
Martin has been employed as a part-time maintenance worker by a
school system for many years. One of his primary responsibilities
during the winter months is removing snow from sidewalks. Martin
develops a heart ailment that substantially limits his ability to
lift heavy objects and prevents him from shoveling snow. He informs
his employer about his health condition and requests reasonable
accommodation. He is fired without discussion. The school system has
discriminated against Martin because school officials did not discuss
possible reasonable accommodation, such as the provision of a snow
blower, that may have enabled him to continue fulfilling his
responsibilities as a part-time maintenance worker.
It is important to note that many types of equipment and devices
that are effective accommodations for employees with visual, hearing
or speech disabilities--such as large print displays on computer
monitors, screen readers, TDDs, and telephone amplifiers--also
constitute auxiliary aids and services that are designed to provide
effective communication. Auxiliary aids and services that are used
to provide effective communication are discussed in greater detail in
Chapter Seven.
5) __Providing Qualified Readers and _Interpreters. It may be a
reasonable accommodation to provide a qualified reader for a
qualified individual with a visual disability or a qualified
interpreter for a qualified individual with a hearing disability, if
such an accommodation does not impose an undue hardship. Identifying
the needs of the individual in relation to specific job tasks will
determine whether or when a reader or interpreter is needed. Few jobs
require a full-time employee for reading or interpreting. A reader or
an interpreter may be a part-time employee or a full-time employee
who performs other duties. Readers and interpreters must read and
interpret well enough, respectively, to enable the employee with
disabilities to perform his or her job effectively.
Example: Is an interpreter a reasonable accommodation for this
individual?
Tina is an administrator with a local school district. She has a
hearing impairment, and although she is a good lip-reader in
one-to-one communication settings, she communicates using a sign
language interpreter for group settings and to handle
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telephone work. The school system contracts with an interpreter to
work with Tina for twenty hours per week. Tina arranges her
schedule so that her meetings and telephone work are scheduled for
the times the interpreter is present. This arrangement fulfills the
school district's duty to provide reasonable accommodation.
Qualified readers and interpreters are also examples of
auxiliary aids and services that are used to provide effective
communication. As mentioned above, auxiliary aids and services that
are designed to provide effective communication are discussed
comprehensively in Chapter Seven.
6) __Modifying the work _site. Employers are obligated to
provide access for individual job applicants with disabilities to
enable them to participate in the job application process. When an
employee with a disability is hired, an employer may have to modify
the work site to enable him or her to perform essential job
functions. In addition, employees with disabilities must be able to
readily access all facilities used by employees, whether essential to
job functions or not--for example, the employee lounge or cafeteria.
Example: Is work site modification a reasonable accommodation for
this individual?
Peter, who uses a wheelchair, is hired as an administrator. He
is unable to enter the building where he is assigned, which has two
steps between the lobby entrance and the elevators. He is also unable
to sit comfortably at his desk because it is too low to the floor.
The school district constructs a ramp in the lobby to provide an
accessible route for Peter. His desk is raised on concrete blocks to
accommodate the height of his wheelchair. These worksite
modifications fulfill the school district's duty to provide
reasonable accommodation.
It is important to understand that an employer is obligated to
provide only job-related accommodations. The requirement to provide
reasonable accommodation does not include providing personal aids or
services to assist an individual in daily activities on or off the
job, such as wheelchairs, glasses, prostheses, or assistance in
toileting or feeding.
It is strongly suggested that school districts establish
policies and procedures to document information regarding the
provision of reasonable accommodation. Information that might be
documented includes the date that an employee or prospective employee
notified the employer of his or her need for accommodation, the
specific accommodation(s) requested by the employee or prospective
employee, the specific accommodation(s) that the employer offered and
the date(s) of the offer, and whether the
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employee or prospective employee accepted or refused the
accommodation. Employers are encouraged to inform supervisors of the
need to keep this documentation in the event that a grievance is
filed or litigation is pursued.
Choosing the Accommodation
The employer is obligated to accommodate only known disabilities
of qualified applicants or employees [29 C.F.R. 1630.9(a)]. The
responsibility for providing an accommodation is triggered when an
individual with a disability makes a request for an accommodation.
Usually, the person making the request will be able to suggest an
appropriate accommodation. School districts can facilitate this
process by providing appropriate forms and specific procedures for
the use of individuals in need of accommodation.
Many employees with disabilities do not need accommodations.
For other employees, the need for accommodation may be obvious. If an
employee with a known disability is having difficulty performing the
job without an accommodation, the employer may ask the employee
whether he or she is in need of an accommodation. Under the Title I
regulation, a qualified individual with a disability is not required
to accept the offer of an accommodation. However, if such an offer is
rejected and the person cannot then perform the essential functions
of the job, the person will no longer be considered a qualified
individual with a disability [29 C.F.R. 1630.9(d)]. (These Title I
requirements regarding the rejection of an offer of a reasonable
accommodation were not specifically provided in the Section 504
regulation prior to the Rehabilitation Act Amendments of 1992.)
Once the applicant or employee has requested an accommodation,
sufficient information must be gathered to determine the type of
accommodation necessary to enable the individual to perform the job.
In most instances, the person with a disability is in the best
position to identify what is needed; however, you may wish to seek
additional information from qualified experts.
An employer need not provide the requested accommodation if an
alternative means of accommodation that is less costly, but equally
effective, is available. It is mandatory, however, to provide an
accommodation that gives a qualified individual with a disability an
opportunity to attain the same level of job performance as co-workers
with similar skills and abilities. Public school systems should
anticipate requests for reasonable accommodation. It will facilitate
your response to such requests to have certain commonly requested
accommodations readily available or know how to obtain them
expeditiously when needed.
The Job Accommodation Network provides free consulting services
for employers to help them select accommodations to
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enable persons with disabilities to perform critical job functions.
By contacting the Job Accommodation Network, you can access
experienced persons familiar with a large number of accommodations
that may be applicable to the barrier your employee must overcome. By
far, the majority of accommodations suggested are relatively
inexpensive: in fact, 31% of those suggested by Network consultants
to date have been free. (See _Resources.)
The Counterbalance: Undue Hardship
If an employer can prove that a requested accommodation imposes
an "undue hardship" on the employer, it need not be provided [29
C.F.R. 1630.9(a)]. However, if the originally suggested
accommodation is an undue hardship, the employer must consider
carefully whether another accommodation exists that would _not result
in an undue hardship.
29 C.F.R. 1630.9 Not making reasonable accommodation. (a) It
is unlawful for a covered entity not to make reasonable accommodation
to the known physical or mental limitations of an otherwise qualified
applicant or employee with a disability, unless such covered entity
can demonstrate that the accommodation would impose an undue
hardship on the operation of its business.
Undue hardship is defined as significant difficulty or expense
incurred by a covered entity in the provision of an accommodation [29
C.F.R. 1630.2(p)(1)]. Under Title I, factors that should be
weighed in determining whether a requested accommodation poses an
undue hardship include:
-- the nature and net cost of the accommodation, taking into
consideration the availability of tax credits and deductions and/or
outside funding;
-- the overall financial resources of the facility or
facilities involved in the provision of the reasonable accommodation,
the number of persons employed at such facility, and the effect on
expenses and resources;
-- the overall financial resources of the covered entity, the
overall size of the business of the covered entity with respect to
the number of employees and the number, type, and location of its
facilities;
-- the type of operation or operations of the covered entity,
including the composition, structure, and functions of the work
force; the geographic separateness and administrative or fiscal
relationship of the facility or facilities in question to the covered
entity; and
-- the impact of the accommodation upon the operation of the
facility, including the impact on the ability of other employees to
perform their duties and the impact on the facility's ability to
conduct business [29 C.F.R. 1630.2(p)(2)].
The factors used to determine what constitutes an "undue
hardship" under Title I are more explicit and numerous than those
contained in the Section 504 regulation prior to the Rehabilitation
Act Amendments of 1992. For example, Section 504 required only
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that the resources of the covered entity as a whole be considered in
determining whether an accommodation was too costly for a particular
school district [34 C.F.R. 104.12(c)(1)]. Under Title I, the
resources that are available to the employee's specific work site
must be considered, in addition to consideration of the resources of
the covered entity as a whole. The Title I regulation also stresses
that net cost (taking into consideration the availability of tax
credits, tax deductions, and/or outside funding) is a relevant
factor; the Section 504 regulation simply referred to the nature and
cost of the accommodation needed [34 C.F.R. 104.12(c)(3)].
The decision as to whether a requested accommodation is
reasonable must be made and reviewed on a case-by-case basis. If
providing a particular accommodation would be an undue hardship, the
employer must attempt to identify an alternative accommodation that
would not impose a hardship, as explained earlier. In addition, in
cases in which the accommodation would pose an undue hardship for the
employer, the individual with the disability should be given the
option of paying for the portion of the cost that constitutes an
undue hardship or of providing the accommodation [Appendix to 29
C.F.R. Part 1630, at 414 (1994)]. It must be clearly understood,
however, that this option is to be offered as a last resort and only
in cases in which providing the requested accommodation would clearly
constitute an undue hardship; it is not to be considered a routine
cost-saving strategy.
Example: Is this requested accommodation an undue hardship?
A teacher with a disability that affects blood circulation
requests that the thermostat in her classroom be raised to a certain
level to accommodate her disability. However, the temperature she
requires for her own comfort is uncomfortably hot for students. The
school does not have to provide this accommodation if it would
constitute an undue hardship. However, if there is an alternative
accommodation that would not be an undue hardship--such as providing
a space heater--the school must provide that accommodation.
If employees are governed by a collective bargaining agreement,
the terms of that agreement may have an impact on whether or not a
requested accommodation creates an undue hardship [Appendix to 29
C.F.R. Part 1630, at 414 (1994)]. For example, if a person becomes
disabled and can no longer perform the essential functions of the job
with reasonable accommodation, job reassignment may be a possibility.
However, if the collective bargaining agreement reserves certain jobs
for employees with a given amount of seniority, and if the individual
with the disability does not have the seniority normally required,
this is a legitimate factor to consider in determining whether or not
it would be an
* Print Page 112
undue hardship to reassign the employee to that vacancy. The
interrelationship between the terms of a collective bargaining
agreement and the responsibility of employers to provide reasonable
accommodation is a complex issue where litigation is likely to
occur. Specific situations will have to be resolved on a
case-by-case basis.
It is important to understand, however, that certain provisions
of collective bargaining agreements will clearly violate the ADA if
they single out persons with disabilities for different treatment [29
C.F.R. 1630.6(a)]. For example, a collective bargaining agreement
that permits a person only one unpaid leave for treatment for
alcoholism violates the ADA if unpaid leave for treatment for
alcoholism is treated more restrictively than unpaid leave for all
other reasons. This "limitation" constitutes disparate treatment
based on disability and differs significantly from "neutral"
provisions, such as those addressing seniority rights. A provision
limiting leave for alcoholism treatment singles out individuals with
a disability for different treatment and explicitly prohibits a type
of reasonable accommodation. Because of the disparate treatment of
employees with a disability, an employer (or union) could _not defend
such a provision by claiming undue hardship.
The EEOC is currently developing guidance that will address,
among other things, the relationship between the terms of a
collective bargaining agreement and the responsibility of employers
to provide reasonable accommodation. To obtain information concerning
this guidance, contact the EEOC directly. (See _Resources.)
QUALIFICATION STANDARDS AND SELECTION CRITERIA
The ADA does not prohibit an employer from establishing physical
and mental job-related qualification standards--including education,
skills, and work experience--necessary for job performance, health
and safety [29 C.F.R. 1630.10]. Public school districts are
entitled to hire the most qualified person able to perform a job.
29 C.F.R. 1630.10 Qualification standards, tests, and other
selection criteria. It is unlawful for a covered entity to use
qualification standards, employment tests or other selection criteria
that screen out or tend to screen out an individual with a disability
or a class of individuals with disabilities, on the basis of
disability, unless the standard, test or other selection criteria, as
used by the covered entity, is shown to be job-related for the
position in question and is consistent with business necessity.
ADA requirements are designed to ensure that people with
disabilities are not excluded from jobs that they _can perform.
However, qualification standards or selection criteria that screen
out or tend to screen out an individual with a disability on the
basis of disability are not automatically disallowed if they are
demonstrably job-related and consistent with business necessity [29
C.F.R. 1630.10]. "Job-related" means that a selection criterion
must be a legitimate measure or qualification for the specific job
for which it is being used [__A Technical Assistance Manual on the
Employment Provisions (Title I) of the Americans with Disabilities
_Act,
* Print Page 113
U.S. Equal Employment Opportunity Commission, January 1992, page
IV-2]. "Business necessity" means that a selection criterion may not
exclude an individual with a disability because of the disability
unless the criterion relates to the essential functions of the job
[__A Technical Assistance Manual on the Employment Provisions (Title
I) of the Americans with Disabilities _Act, U.S. Equal Employment
Opportunity Commission, January 1992, page IV-3].
Even if a standard is job-related and consistent with business
necessity, if it screens out an individual with a disability on the
basis of disability, the employer must consider whether the
individual could meet the standard with reasonable accommodation. For
example, it may be job-related and necessary for a school district to
require that a secretary produce letters and other documents on a
word processor. However, it would be discriminatory to reject a
person whose disability prevented manual keyboard operation but who
could meet the qualification standard using a computer assistive
device. Such devices are generally not costly and would not be
expected to impose an undue hardship for any public school district.
It is important to note that employers may continue to select
and hire people who can perform all job functions. However, an
employer may not refuse to hire an individual with a disability who,
while able to perform the essential functions of the job, cannot
perform marginal job functions because of the disability, even though
other applicants can perform those marginal functions [__A Technical
Assistance Manual on the Employment Provisions (Title I) of the
Americans with Disabilities _Act, U.S. Equal Employment Opportunity
Commission, January 1992, page IV-2].
Example: What qualification standards and selection criteria may
this school district consider when evaluating applicants for a job
opening?
A school district has an opening for an administrative
assistant. The essential functions of the job are administrative and
organizational. Some occasional typing has been part of the job, but
other clerical staff are available who can perform this marginal job
function.
There are two job applicants. Jennifer has a disability that
makes typing very difficult; John has no disability and can type. The
district may not refuse to hire Jennifer because of her inability to
type, but must base a job decision on the relative ability of each
applicant to perform the essential administrative and organizational
job functions, with or without accommodation. However, if Jennifer
could not type for a reason not related to her disability (for
example, if she had never learned to type), the district would be
free to select the applicant who could best perform all of the job
functions.
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NONDISCRIMINATION IN THE HIRING PROCESS
Job Advertisements and Notices
It is advisable that job announcements, advertisements, and
other recruitment notices include information on the essential
functions of the job. Specific information about essential functions
will attract applicants, including individuals with disabilities, who
have appropriate qualifications.
Information about job openings should be accessible to people
with various disabilities. For example, job information should be
available in a location that is accessible to people with mobility
impairments and in formats accessible to individuals with sensory
impairments. While an employer is not obligated to provide written
information (such as job descriptions) in alternative formats in
advance of any request, the information in alternative formats must
be made available in a timely manner once it has been requested.
Pre-employment Inquiries
The ADA prohibits pre-offer inquiries regarding the existence of
an applicant's disability or the nature and severity of the
disability on application forms, in job interviews, and in background
or reference checks [29 C.F.R. 1630.13(a)]. Pre-offer medical
inquiries or medical examinations are also prohibited [29 C.F.R.
1630.13(a)]. These requirements are intended to redress a
historically common occurrence: the rejection of people with
disabilities before their merits are considered, often based on myths
and misinformation about their disability. Employers _may make
pre-employment inquiries into the ability of the applicant to perform
job-related functions [29 C.F.R. 1630.14(a)]. However, blanket
questions such as "Do you have a disability?" or "How many times have
you been hospitalized in the last five years and for what?" are not
permissible. Employers may also not ask such questions as, "Have you
ever been treated by a psychiatrist or psychologist?" and "Are you
taking any prescribed drugs?" Questions concerning an applicant's
workers' compensation claims history are also prohibited at the
pre-offer stage.
Employers may ask all applicants to describe or demonstrate how
they will perform the functions of the job with or without reasonable
accommodation. Employers may also ask an individual with a known
disability to describe or demonstrate how functions of the job will
be performed, whether or not all applicants in the job category are
so asked [29 C.F.R. 1630.14(a)]. If a demonstration of how the
proposed accommodation would work in practice is required, the
employer must provide the reasonable accommodation for the
demonstration. Agility tests are not considered medical examinations
and are permissible
* Print Page 115
at the pre-offer stage, provided that they are given to all
applicants [Appendix to 29 C.F.R. Part 1630, at 412 (1994)].
It is important to note that public school systems have an
obligation to make reasonable accommodations to enable an applicant
with a disability to apply for a job. For example, individuals with
visual or learning disabilities or other mental disabilities may
require assistance in filling out application forms. School districts
must also provide a reasonable accommodation, if needed, to enable an
applicant to have equal opportunity in the interview process. Needed
accommodations for interviews may include an accessible location for
people with mobility impairments, a sign language interpreter for a
person with a hearing impairment, or a reader for a person with a
visual impairment. School districts may find it helpful to include a
statement in job notices and/or job application forms, that
applicants who need accommodation for an interview should request
this in advance.
Testing
Employers may use any kind of test to determine job
qualifications. However, if a test screens out or tends to screen out
an individual with a disability or a class of such individuals on the
basis of disability, it must be job-related and consistent with
business necessity [29 C.F.R. 1630.10]. For example, a principal's
office seeking to hire a secretary may continue to use a typing test
that excludes individuals who type less than sixty words per minute
if typing is an essential function of the job and sixty words per
minute is the expected level of performance for employees in the job
category.
The ADA requires that tests be given to people who have impaired
sensory, speaking or manual skills in a format and manner that does
not require use of the impaired skill, unless the test is designed to
measure that skill [29 C.F.R. 1630.11]. The purpose of this
requirement is to ensure that tests accurately reflect a person's job
skills, aptitudes, or whatever else the test is supposed to measure,
rather than impaired skills that are not required to perform
essential job functions. This requirement applies the reasonable
accommodation obligation to testing.
29 C.F.R. 1630.11 Administration of Tests. It is unlawful for
a covered entity to fail to select and administer tests concerning
employment in the most effective manner to ensure that, when a test
is administered to a job applicant or employee who has a disability
that impairs sensory, manual, or speaking skills, the test results
accurately reflect the skills, aptitude, or whatever other factor of
the applicant or employee that the test purports to measure, rather
than reflecting the impaired sensory, manual, or speaking skills of
such employee or applicant (except where such skills are the factors
that the test purports to measure).
Some examples of alternative test formats and accommodations
include:
-- substituting a written test for an oral test (or written
instructions for oral instructions) for people with impaired speaking
or hearing skills;
-- administering a test in large print, in Braille, by a
reader, or on a computer for people with visual or other reading
disabilities;
* Print Page 116
-- allowing people with visual or learning disabilities or
who have limited use of their hands to record test answers by tape
recorder, dictation or computer;
-- providing extra time to complete a test for people with
impaired writing skills or certain learning disabilities;
-- allowing individuals with disabilities who function better
or worse at certain times of day because of the effects of medication
or changing energy levels to take the test at a time when they can do
their best;
-- ensuring that a test site is physically accessible to a
person with a mobility impairment;
-- allowing a person with a disability who cannot perform
well if there are distractions to take a test in a separate room,
unless the ability to take the test in a group setting is relevant to
essential job functions being tested; and
-- allowing rest breaks for people with mental and other
disabilities who need that relief.
POST-OFFER AND EMPLOYEE MEDICAL EXAMINATIONS AND INQUIRIES
Inquiries Following a Conditional Offer
Once an offer of employment has been extended, it may be
conditioned on the results of a medical examination if all
individuals in the same job category are examined and if the
information obtained is kept confidential [29 C.F.R. 1630.14(b)].
Medical inquiries at this stage of the employment process are
unrestricted. However, there are limitations on how medical
information gathered at this stage may be used. If the results of the
medical examination are used to screen out applicants with
disabilities, the criteria must be job-related and consistent with
business necessity [29 C.F.R. 1630.14(b)(3)].
Example: Is this use of medical information permissible?
Jeff is applying for an administrative assistant position at an
elementary school. The essential functions of the job are word
processing, filing, and answering the telephone. The school requires
all applicants to undergo a post-offer, pre-placement physical. The
medical history portion of the examination discloses that Jeff has a
psychiatric disability. The school system informs Jeff that it wishes
to withdraw its offer.
* Print Page 117
Since post-offer medical examinations and inquires, made before
an individual starts work, need not focus on the ability to perform
job functions and do not have to be "job-related" and "consistent
with business necessity," the school system may inquire regarding
Jeff's disability. However, the school system may not withdraw the
job offer unless the reasons for the exclusion are job-related and
consistent with business necessity and job functions cannot be
accomplished with the provision of reasonable accommodation, or
unless Jeff poses a direct threat to health or safety.
It is permissible to make post-offer inquiries about a worker's
medical compensation history if all applicants in the same job
category are asked the same question [__A Technical Assistance Manual
on the Employment Provisions (Title I) of the Americans with
Disabilities _Act, U.S. Equal Employment Opportunity Commission,
January 1992, page V-8]. However, an employer may not base an
employment decision on speculation that an applicant may cause
increased workers' compensation costs in the future.
Employee Medical Examinations and Inquiries
The Title I regulation contains several provisions regarding
employee medical examinations and inquiries that were not contained
in the Section 504 regulation prior to the Rehabilitation Act
Amendments of 1992. For example, under Title I, once an employee
starts work, any health-related inquiries or medical examinations
must be job-related and consistent with business necessity [29 C.F.R.
1630.14(c)]. Medical examinations or inquiries may be conducted
when there is a need to determine whether an employee is still able
to perform essential job functions. For example, if an employee
repeatedly falls asleep on the job, has excessive absenteeism, or
exhibits difficulty performing essential job functions, a medical
examination may be required to determine fitness for job duty and/or
the need for reasonable accommodations.
Under Title I, employers may conduct periodic examinations and
other medical screening and monitoring required by federal, state or
local laws [Appendix to 29 C.F.R. Part 1630, at 413 (1994)]. Prior to
the Rehabilitation Act Amendments of 1992, Section 504 did not
contain a similar provision. The Title I regulation provides that an
employer may defend an alleged discriminatory action by showing that
the action was taken in compliance with another federal law or
regulation [29 C.F.R. 1630.15(e)]. An action taken to comply with
state or local law must be consistent with the ADA [Appendix to 29
C.F.R. Part 1630, at 413 (1994)]. For example, if a state or local
law required that employees in a particular job be tested
periodically for AIDS or the HIV virus, the ADA would prohibit such
an examination unless an employer can show that it is job-related and
consistent with business necessity or required to avoid a direct
threat to
* Print Page 118
health or safety [__A Technical Assistance Manual on the Employment
Provisions (Title I) of the Americans with Disabilities _Act, U.S.
Equal Employment Opportunity Commission, January 1992, page VI-15].
Under Title I, an employer may conduct voluntary medical
examinations and inquiries as part of an employee health program,
provided that participation in the program is voluntary and
information obtained is kept confidential and is not used to
discriminate against an employee [29 C.F.R. 1630.14(d)]. Prior to
the Rehabilitation Act Amendments of 1992, there was no similar
provision under Section 504.
Medical Files
Employers are required to maintain medical files separate from
employees' personnel files to ensure against unwarranted disclosure
of the person's disability [29 C.F.R. 1630.14(b)(1),(c)(1), and
(d)(1)]. Although confidentiality must be maintained, an employer may
inform supervisory personnel about an individual's medical
restrictions or necessary accommodations. First aid or safety
personnel may be informed if special treatment or evacuation
assistance may be necessary. Disclosure is also permitted to: (1)
government officials investigating compliance with the ADA; (2) state
workers' compensation or second injury fund offices; and (3) the
employer's health or life insurance companies [Appendix to 29 C.F.R.
Part 1630, at 412(1994)].
Drug Testing
The ADA does not require or prohibit testing employees for
illegal use of drugs [29 C.F.R. 1630.16(c)(1)]. However, any
additional information obtained from drug tests besides whether the
individual is currently engaging in the illegal use of drugs, such as
the presence of a prescription medication to control a particular
disability, must be treated as confidential medical information [29
C.F.R. 1630.16(c)(3)]. The employer can require drug use tests at
any stage of the employment process.
Direct Threat to Health or Safety
As discussed in Chapter Two, under Title I, an employer is not
required to hire or continue to employ an individual who poses a
direct threat to the health or safety of the individual or others [29
C.F.R. 1630.15(b)(2)]. The direct threat standard is a strict one.
The term is defined as "a significant risk of substantial harm to the
health or safety of the individual or others that cannot be
eliminated or reduced by reasonable accommodation" [29 C.F.R.
1630.2(r)]. Speculative or remote risks are not sufficient to
constitute a significant risk under this provision. In determining
whether an individual would pose a direct threat, the factors to be
considered include:
* Print Page 119
1. the duration of the risk;
2. the nature and severity of the potential harm;
3. the likelihood that the potential harm will occur; and
4. the imminence of the potential harm [29 C.F.R.
1630.2(r)].
The employer must rely on the most current medical knowledge
and/or objective, factual evidence concerning the individual, not on
generalizations or stereotypes, to demonstrate the existence of a
direct threat to health or safety. The assessment must consider
whether accommodations could be provided that would enable the
individual to safely perform the essential functions of the job [29
C.F.R. 1630.2(r)].
Example: Does this individual pose a "direct threat to health and
safety?"
School district officials may believe that there is a risk of
employing Keith, an individual with HIV disease, as a teacher.
However, it is medically established that this disease can only be
transmitted through sexual contact, use of infected needles, or other
entry into a person's blood stream. There is therefore little or no
likelihood that employing Keith as a teacher would pose a risk of
transmitting HIV disease.
Although the term "direct threat" was not used in the pre-1992
Section 504 regulation, the factors used to determine whether an
individual poses a "direct threat" in the Title I regulation are
effectively identical to those contained in Section 504 case law to
determine whether an individual poses a "significant safety risk"
[__School Board of Nassau County v. _Arline, 480 U.S. 273, 288
(1987)].
A specific provision of Title I applies the direct threat
analysis to food handlers with infectious or communicable diseases.
The Secretary of the U.S. Department of Health and Human Services is
responsible for generating a list of infectious and communicable
diseases that are transmitted by food handling. If a person with a
disability has one of these diseases and there is no reasonable
accommodation that can eliminate the risk of transmitting the
disease, the employer can refuse to hire the applicant or can
reassign an incumbent to a position where he or she does not pose a
direct threat to health or safety [29 C.F.R. 1630.16(e)].
* Print Page 120
LIMITING, SEGREGATING, OR CLASSIFYING JOB APPLICANTS OR EMPLOYEES
An employer or other covered entity may not limit, segregate, or
classify an individual with a disability in a manner that adversely
affects the individual's employment opportunities because of his or
her disability [29 C.F.R. 1630.5]. Under the ADA, an individual
with a disability must have equal access to any employment
opportunity available to a similarly situated individual who is not
disabled. This includes access to opportunities and benefits
extended to current employees as well as those offered during the
recruitment process.
29 C.F.R. 1630.5 Limiting, segregating, and classifying. It
is unlawful for a covered entity to limit, segregate, or classify a
job applicant or employee in a way that adversely affects his or her
employment opportunities or status on the basis of disability.
Insurance and Other Benefit Plans
This requirement--that individuals may not be limited,
segregated, or classified because of a disability in a way that
adversely affects the individual's employment opportunities--applies
to health insurance and other benefit plans provided by the school
district to its employees, such as life insurance and pension plans,
as well as to other benefits and privileges of employment. If an
employer provides insurance or other benefit plans to its employees
without disabilities, it must provide equal access to the same
coverage to its employees with disabilities [Appendix to 29 C.F.R.
Part 1630, at 404 (1994)].
An employer cannot fire or refuse to hire an individual with a
disability because the employer's current health insurance plan does
not cover the individual's disability or because the individual may
increase the employer's future health care costs. Also, an employer
cannot fire or refuse to hire an individual (whether or not that
individual has a disability) because the individual has a family
member or dependent with a disability who is not covered by the
employer's current health insurance plan or who may increase the
employer's future health care costs.
Certain restrictions are permissible, however, unless proven to
be a subterfuge for discrimination. An employer may offer health
insurance plans that contain pre-existing condition exclusions, even
if this adversely affects individuals with disabilities, unless these
exclusions are being used as a subterfuge to evade the purposes of
the ADA. An employer may also offer health insurance plans that limit
coverage for certain procedures and/or limit particular treatments to
a specified number per year, even if these restrictions adversely
affect individuals with disabilities, as long as the restrictions are
uniformly applied to all insured individuals, regardless of
disability. In addition, an employer may offer health insurance plans
that limit reimbursements for certain types of drugs or procedures,
even if these restrictions adversely affect individuals with
disabilities, as long as the restrictions are uniformly applied
without regard to disability.
* Print Page 121
For example, an employer can offer a health insurance plan that does
not cover experimental drugs or procedures, as long as this
restriction is applied to all insured individuals [Appendix to 29
C.F.R. Part 1630, at 405 (1994)].
It is important to note that, with respect to disability-based
exclusions and disability-based differences in coverage, employers
have the burden of justifying any disability-based distinctions in
coverage [__Interim Enforcement Guidance on the Application of the
Americans with Disabilities Act of 1990 to Disability-based
Distinctions in Employer-provided Health _Insurance, U.S. Equal
Employment Opportunity Commission, June 8, 1993, page 4]. For
example, consider a public school district that provides a health
plan that does not cover cochlear implantation procedures. Because
_only individuals with hearing impairments would require cochlear
implants, this is a disability-based distinction in coverage. The
provider has the burden of justifying the particular disability-based
distinction. The school district would have to show that the health
plan is a bona fide health plan and that the disability-based
distinction is not a subterfuge for discrimination (i.e., that the
exclusion is necessary in order to ensure the financial solvency of
the plan, or that a particular procedure is considered experimental
treatment) [__Interim Enforcement Guidance on the Application of the
Americans with Disabilities Act of 1990 to Disability-Based
Distinctions in Employer-Provided Health _Insurance, U.S. Equal
Employment Opportunity Commission, June 8, 1993, pages 10-13].
On June 8, 1993, the EEOC issued interim enforcement guidance on
the application of the ADA to disability-based distinctions in
employer-provided health insurance. This is an area of the law that
is still evolving. To obtain a copy of the June 8, 1993, _Interim
_Enforcement _Guidance or to receive technical assistance regarding
disability-based exclusions or disability-based differences in
coverage, contact the EEOC directly. (See _Resources.)
Other Benefits and Privileges
Nondiscrimination requirements, including the obligation to make
reasonable accommodation, apply to all social or recreational
activities provided or conducted by an employer, to any
transportation provided by an employer for its employees or
applicants, and to all other benefits and privileges of employment
[29 C.F.R. 1630.4 and Appendix to 29 C.F.R. Part 1630, at 404
(1994)]. Picnics, parties, award ceremonies, and other social
functions held by school districts must be held in accessible
locations with interpreters or other accommodations available when
needed. Employees with disabilities must be given an equal
opportunity to participate in employer-sponsored sports teams,
leagues, or recreational activities such as hiking or biking clubs.
(However, no activity need be cancelled because an employee with a
disability cannot participate, or participate fully,
* Print Page 122
because of the nature of the disability.) Any special facilities
provided to employees--such as lounges, cafeterias, exercise rooms
and gymnasiums--must be equally available to employees with
disabilities. Transportation provided to employees must also be
accessible to employees with mobility impairments.
Opportunities for Advancement
The nondiscrimination requirements that apply to initial
selection apply to all aspects of employment, including opportunities
for advancement [29 C.F.R. 1630.4]. For example, an employer may
not discriminate with respect to promotion, job classification,
evaluation, disciplinary action, opportunities for training, or
participation in meetings and conferences. Assuming that an employee
is not interested in or qualified for advancement--whether resulting
from prejudice or mistaken sympathy--is not permissible. Also, the
need to provide reasonable accommodation to enable the person with a
disability to perform essential job functions may not appropriately
be considered as a criterion for advancement. Employers should
ensure that supervisors and managers who make decisions regarding
promotion and advancement are aware of ADA nondiscrimination
requirements.
Employees with disabilities must not be limited in any way with
respect to their promotion and advancement through the
organization--except by their own skills and abilities.
Example: Is this teacher's advancement being illegally restricted?
Noah is an experienced teacher who has been with the school
system for many years. He uses a wheelchair. He has excellent
interpersonal skills and is well respected by the student body.
However, when there is an opening for an assistant principal position
in the school, Noah is not considered because of the perception that
his disability would prevent him from handling disruptive students
and administering discipline effectively. Noah is being discriminated
against. In considering candidates for a position, school officials
must analyze candidates' skills and abilities and must not base their
decision on whether to hire or promote an individual on perceptions
regarding the individual's disability.
Performance Standards
Employees with disabilities may be held to the same standards of
production and performance as other employees without disabilities
who are performing similar functions. No "special treatment" is
required in performance evaluations. If an employee with a disability
is not performing well, an employer is entitled to take the same
disciplinary action that would be taken against other similarly
situated employees. The employer is even
* Print Page 123
permitted to make medical and other professional inquiries to
determine how the disability may be affecting job performance,
provided the inquiries are job-related and consistent with business
necessity. However, an employee with a disability who needs an
accommodation to perform an essential job function should not be
evaluated on his or her ability to perform the function without the
accommodation and should not be downgraded because the accommodation
is necessary.
Example: Is this employee's poor job rating discriminatory?
Eduardo, a guidance counselor, is subject to frequent
depression. While receiving medical treatment, in the past year, he
has been unable to perform critical job functions to required
standards of quality, even though the district has provided
reasonable accommodation. He has missed scheduled meetings with
students, failed to return calls to prospective employers and
colleges, and neglected paperwork essential to assist students in job
placement. The school district is not discriminating against Eduardo
on the basis of his disability by giving him a poor job performance
rating.
Training Opportunities
Employees with disabilities must be provided equal opportunities
to participate in training that will enable them to improve their job
performance or to qualify for advancement [29 C.F.R. 1630.4(g)]. In
order to enable employees with disabilities to benefit from training,
reasonable accommodation must be made, unless the employer can prove
that it would constitute an undue hardship. For example, interpreters
and notetakers may need to be provided for employees who have hearing
impairments. Training conducted directly by the school district or
made available through contractors must be held in locations
accessible to persons with mobility disabilities.
CONTRACTUAL OR OTHER RELATIONSHIPS
Employers may not do anything through a contractual relationship
that they cannot do directly [29 C.F.R. 1630.6(a)]. Examples of
entities with which an employer might contract include employment
referral services, training programs, labor unions, and organizations
providing fringe benefits to employees [29 C.F.R. 1630.6(b)].
29 C.F.R. 1630.6 Contractual or other arrangements. (a) In
general. It is unlawful for a covered entity to participate in a
contractual or other arrangement or relationship that has the effect
of subjecting the covered entity's own qualified applicant or
employee with a disability to the discrimination prohibited by this
part.
As part of the self-evaluation process and of future reviews
conducted to ensure continued compliance with the ADA, public school
systems should examine the recruitment and placement practices of any
employment agencies they utilize (whether for temporary or permanent
job placements) to ensure that the
* Print Page 124
employment agencies' practices are in compliance with the ADA.
Particular attention should be given to the methods employment
agencies use to recruit or screen applicants. Public school systems
should inform employment agencies they work with of their mutual
obligation to comply with the ADA. In addition, any apprenticeship
and job-training programs with which school districts are associated
must also be free from discrimination in their treatment of
participants.
Example: Is the school district responsible for this contractor's
discriminatory hiring practices?
A local school district uses an employment agency to recruit
prospective employees for a management position. The agency places a
newspaper advertisement with a telephone number that all interested
persons must call; no address is given and the employer's identity is
not cited. The advertisement mentions no TDD number. A qualified
applicant with a hearing impairment uses a relay service to reach the
employment agency. The interviewer finds using the service
time-consuming and frustrating; as a result of her initial impression
that the candidate would be a "hassle" to work with, she does not
include the individual's resume in a selected group of resumes of
qualified applicants for further consideration--even though the
applicant has met all stated qualifications.
The school system is responsible for the contractor's
discriminatory hiring practices.
Labor unions are covered by the ADA and have the same obligation
as the employer to comply with its requirements. A public school
district cannot take any action through a labor union contract that
would be impermissible for it to take directly. For example, if a
union contract contained physical requirements for a particular job
that screened out people with disabilities who were qualified to
perform the job, and these requirements were not job-related and
consistent with business necessity, they could be challenged as
discriminatory by a qualified individual with a disability.
The Congressional Committee Reports accompanying the ADA advised
employers and unions that in order to avoid conflicts between the
bargaining agreement and the employer's duty to comply with the ADA,
agreements negotiated after the effective date of the ADA should
contain a provision that explicitly permits employers to take all
action needed to comply with the ADA [S. Rep. No. 116, 101st Cong.,
1st Sess. 32 (1990); H.R. Rep. No. 485, 101st Cong., 2nd Sess.,
pt.2, at 63 (1990)].
* Print Page 125
DISCRIMINATION ON THE BASIS OF RELATIONSHIP OR ASSOCIATION
As discussed in Chapter Two, employers sometimes make damaging
and unfounded assumptions about how a current or prospective
employee's relationship to a person with a disability will affect job
performance. To protect individuals from this form of discrimination,
the ADA bars employers from discriminating against employees, or
potential employees, because of their known relationship or
association with a person who has a disability [29 C.F.R. 1630.8].
There was no similar provision previously under Section 504. This ADA
provision makes it illegal to fire or refuse to hire someone because
of assumptions about how their relationship with a person who has a
disability will affect either their work schedule or their
participation in an employer-provided health insurance plan. Such
persons also cannot be required to accept different insurance terms
than those offered to other individuals.
The requirement prohibiting discrimination on the basis of
"relationship or association" refers not only to family and other
close personal relationships, but also to other social or business
relationships and associations [Appendix to 29 C.F.R. Part 1630, at
406 (1994)]. For example, an employer may not discriminate against an
individual who is affiliated with a group or association that is
composed of persons with disabilities or intended to benefit them.
Thus, volunteer work for certain organizations may be considered an
association.
Examples: Are these individuals discriminated against on the basis
of association?
1. Ian, an applicant for an elementary school teacher
position, volunteers with a local organization that provides
assistance to persons with AIDS in their homes. During the interview,
he informs school officials of this fact. Ian is equally qualified to
the other candidates for the position. The school district relies in
part on his volunteer work with the local AIDS organization in
selecting one of the other candidates for the position. This
constitutes discrimination on the basis of Ian's association.
2. Margaret is an assistant principal being considered for
promotion to principal. School officials are aware that her spouse
has been diagnosed as having Alzheimer's Disease. Margaret is
refused the promotion based on the unfounded assumption that caring
for her spouse may demand so much of Margaret's attention that she
will not be able to be an effective principal. This constitutes
discrimination on the basis of Margaret's relationship.
* Print Page 126
Employers are not obligated to provide accommodation to
employees who have a relationship or association with people with
disabilities [Appendix to 29 C.F.R. Part 1630, at 406 (1994)]. For
example, under the ADA employers are not required to provide modified
work schedules as an accommodation to enable employees to care for
spouses or children with disabilities or to carry out volunteer
activities related to persons with disabilities.
RETALIATION AND COERCION
As discussed in Chapter Two, it is unlawful to discriminate
against an individual because he or she has opposed an employment
practice of the employer, has filed a complaint, or has testified,
assisted, or participated in an investigation, proceeding, or hearing
to enforce provisions of the Act [29 C.F.R. 1630.12(a)]. It is also
unlawful to coerce, intimidate, threaten, harass, or interfere with
any individual in the exercise or enjoyment of any right protected by
the ADA or because that individual aided or encouraged any other
individual to exercise any right protected by the ADA [29 C.F.R.
1630.12(b)].
DEFENSES
The Title I regulation identifies six defenses to a charge of
employment discrimination on the basis of disability [29 C.F.R.
1630.15]. The list is not, however, intended to be exhaustive.
1. _Disparate _treatment. Disparate treatment means treating
an individual differently on the basis of disability. Disparate
treatment, for example, has occurred when a public school district
has a policy of firing individuals with AIDS regardless of the
individuals' qualifications. A defense to a charge of disparate
treatment is that the alleged actions were based on legitimate,
nondiscriminatory reasons unrelated to the person's disability, such
as unsatisfactory performance. The defense of a legitimate
nondiscriminatory reason is rebutted if the alleged nondiscriminatory
reason is shown to be a pretext for discrimination.
2. __Disparate impact of selection _criteria. If a charge is
made that selection criteria, although uniformly applied, have an
adverse impact on people with disabilities, the employer must show
that these criteria are job-related and consistent with business
necessity and that no reasonable accommodation is available. If the
employer's criteria are based on avoidance of a "direct threat to
health or safety," the employer must show that the concern is real,
not based on prejudice, and must meet the stringent requirements
under the ADA to establish that such a "direct threat" exists.
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3. __Disparate impact of policies and procedures (besides
selection _criteria). If employer policies and procedures, other than
selection criteria, are shown to have an adverse impact on people
with disabilities, even when uniformly applied, the employer must
show that the policies and procedures are job-related and consistent
with business necessity, and that implementation of the policy or
procedure cannot be accomplished with reasonable accommodation.
4. _Undue _hardship. As discussed earlier in the chapter, if
the charge is a failure to provide reasonable accommodation, the
public school district must show that undue hardship would result
from providing reasonable accommodation or that reasonable
accommodation was in fact offered and refused.
5. __Conflict with other federal _laws. Where other federal
laws require or prohibit an action in apparent conflict with the ADA
requirements, the employer's obligation to comply with the
conflicting standard is a defense. The employer's defense of a
conflicting federal requirement or regulation may be rebutted by
showing that it is a pretext for discrimination, by showing that the
federal standard did not in fact require the discriminatory action,
or by showing a non-exclusionary means to comply with the standard
that would not conflict with the ADA.
6. __An action that is specifically permitted by sections
1630.14 or 1630.16 of the Title I _regulation. It may be a defense to
a charge of discrimination that an action is specifically permitted
by sections 1630.14 or 1630.16 of the Title I regulation. These
sections cover permissible inquiries and medical examinations;
religious preferences; the regulation of alcohol and drugs; the
regulation of smoking; drug testing; infectious and communicable
diseases in food handling jobs; and certain insurance and benefit
plan practices.
* Print Page 128
IMPLEMENTATION
Conducting the Review of Employment Policies and Practices
This section provides suggestions for the following activities:
-- Prepare to conduct the review
-- Identify essential job functions
-- Review policies and procedures for reasonable accommodations,
new hires, and current employees
IMPLEMENTATION
The ADA requires school districts to ensure that qualified
persons with disabilities are given equal opportunity to compete for
available jobs, to maintain their jobs, and to advance through the
organization as far as their abilities will take them. Qualified
persons with disabilities must also have equal access to all benefits
and privileges afforded other employees. To ensure that your school
district is in compliance with the ADA, it is recommended that you
conduct a thorough review of school-system-wide policies and
practices in the area of employment.
The approach to reviewing policies and practices suggested here
begins with a preparation phase in which a staff coordinator is
selected, an appropriate subcommittee is put in place and trained,
and the review is organized, using appropriate organizational units.
Next, essential job functions are carefully defined on a
system-wide basis. Key persons familiar with specific organizational
units review job descriptions in their unit to ensure that these
descriptions define the desired _outcome or _results of a job without
inappropriately specifying the _manner in which jobs are usually
performed.
Finally, the school system reviews all of its employment-related
policies and procedures. Areas to be examined include the provision
of reasonable accommodations (to ensure their availability to both
prospective hires and incumbents and to inform supervisors and
interviewers that such accommodations must be provided when
requested); all steps of the hiring process; and all policies related
to job incumbents, including their access to benefits and privileges.
The following section will review each of these three major
areas and the substeps essential to address each one fully.
Worksheets designed to assist in this process are introduced at the
point in the process where they would be used.
Prepare to Conduct the Review
This phase includes the following steps:
-- Identify, recruit, and train the employment subcommittee.
-- Organize and schedule the self-evaluation process.
-- Train or inform other key personnel.
1. __Identify, recruit and train the employment _subcommittee.
The starting point for self-evaluation of employment policies and
practices is to designate an appropriate staff person to coordinate
the effort. Frequently, but not always, this is the same person
* Print Page 129
named as the ADA coordinator. Position titles for persons who have
assumed this responsibility in other school districts include
director of personnel, human resources director, legal counsel, or
others in an overall supervisory capacity for personnel affairs.
Next, list the organizational units of your school district that
will participate in the self-evaluation. The units you will work with
depend on the size of your school district. You will want to break
down the process into units of the size that will best facilitate
reliable communication between staff in the unit and the employment
subcommittee. Also, units should have similar employment-related
procedures.
For each of the organizational units you have identified,
identify key employment-related decision-makers. Either choose an
appropriate representative to the employment subcommittee or request
the decision-maker to designate someone appropriate. Individuals
involved in the self-evaluation should have significant expertise to
contribute to the review process. The self-evaluation process will
proceed more efficiently if representatives are generally familiar
with employment-related policies and procedures.
All subcommittee members should be fully informed of the ADA
requirements in the area of employment. If at all possible, all
subcommittee members should attend employment-related ADA training.
At a minimum, they should receive a detailed briefing from the ADA
coordinator or another equally informed person. Each individual
should also review the ADA statute, the regulations implementing
Title I and Title II, this self-evaluation guide, the U.S. Equal
Employment Opportunity Commission's Title I technical assistance
manual, the U.S. Department of Justice's Title II technical
assistance manual, and any other information the ADA coordinator
determines is essential.
Worksheet 5-1a may be used to compile a basic list of units, key
employment-related decision-makers, and designated subcommittee
representatives.
2. __Organize and schedule the self-evaluation _process.
Convene the subcommittee to determine how to organize the
self-evaluation process. Identify the steps you will follow and the
forms you will use. You may wish to use the forms provided in this
book as they are, adapt them to suit the needs of your school
district, or utilize forms obtained from another source (such as
those noted in the _Resources section). Together, the subcommittee
should determine how to address any obstacles that could impede its
mission.
In order to efficiently organize the self-evaluation process, it
will be helpful to collect information regarding how
employment-related decisions are made in each organizational unit.
The
* Print Page 130
designated representative to the employment subcommittee may be able
to supply this information. It is important to note that key
decision-makers regarding employment will be contacted during the
self-evaluation and school districts are encouraged to train these
decision-makers on the requirements of the ADA.
At this stage you should also develop a plan to ensure
appropriate participation by individuals with disabilities.
Participation can occur in a variety of ways. For example, an initial
meeting or series of open meetings to identify employment-related
issues can help in planning the review process. Individuals with
disabilities, and, in particular, employees with disabilities, can
often identify key issues that may not be readily apparent to
employees of the school district who do not have disabilities.
As the self-evaluation proceeds, individuals with disabilities
can serve as members of review teams. Their perspectives on the
impact and relative importance of barriers to equal employment
opportunity may be helpful. They may be able to propose modifications
to policies and procedures that would not occur to other individuals.
They should also be involved in reviewing modifications to policies
and procedures proposed by the subcommittee or by organizational
units.
It is suggested that school districts develop and publicize an
initial schedule for the entire employment-related self-evaluation
process. Include all steps of the self-evaluation and assign target
completion dates for each step.
Worksheet 5-1b may be used to record information on key
employment-related decision-makers within each unit. Note that
information provided should cover all categories of employees,
including seasonal workers, employees covered by collective
bargaining units, and employees hired through outside agencies. Where
distinctions exist for any of these categories of employees, record
them. Use Worksheet 5-1c to document the participation of individuals
with disabilities in the self-evaluation.
3. __Train or inform other key _personnel. In addition to
individuals who are on the employment subcommittee and key
employment-related decision-makers, each organizational unit contains
other individuals who play a significant role with respect to
employment-related decision-making, planning, and administration.
These individuals should also receive ADA training, or at least
receive educational materials on the ADA. Care should be taken either
to train or to inform these persons of ADA requirements in a way that
will capture their attention. It is important that education on the
ADA be provided as early as possible in the self-evaluation process.
* Print Page 131
Identify Essential Job Functions
Because identifying "essential job functions" of job categories
is critical to determining compliance with many ADA employment
requirements, one of the first steps that school districts should
undertake in the employment self-evaluation is to reexamine the
essential job functions associated with each job category. Although
job descriptions are not required by the regulations, it is an
excellent idea for school districts to develop or update job
descriptions that identify essential job functions.
Worksheet 5-2 provides a vehicle to identify job categories,
determine whether essential job functions have been defined in a job
description, and determine whether the job category is included in a
collective bargaining agreement. If a job description that identifies
essential job functions does not exist, Part B of Worksheet 5-2
suggests a process for developing job descriptions that identify
essential job functions.
Review Policies and Procedures
1. __Ensure that reasonable accommodation is available and
offered when _appropriate.
Since one of the ADA's most important provisions in the area of
employment is the requirement that employers make reasonable
accommodation for qualified applicants and employees with
disabilities upon their request, public school districts should
review their policies and procedures for handling requests for
reasonable accommodation from qualified applicants or employees with
disabilities. A poorly handled response to a request for reasonable
accommodation from a qualified person with a disability could result
in a lawsuit.
Although reasonable accommodation must clearly be determined on
an individualized basis, school districts can anticipate certain
types of accommodation requests and take steps to meet those
requests. For example, an applicant who has a hearing impairment may
request that a sign language interpreter be present for a job
interview. School districts may want to have a listing of providers
of interpreters in their local area. Developing or updating policies
and procedures related to reasonable accommodation, including
designation of responsible staff who will facilitate responses to
requests, can ensure consistency, efficiency, and cost-effectiveness
in your school district's response. Your school district should also
make sure that it provides adequate funding for reasonable
accommodation in its budget.
* Print Page 132
Worksheet 5-3, Part A, may be used to determine whether commonly
requested reasonable accommodations are currently available. Part B
may be used to collect information on resources that may be used to
respond to accommodation requests. Part C may be used to determine
how responses to accommodation requests are currently documented,
including those believed to constitute undue hardship. Note that a
sample Record of Accommodation request is attached to Part C.
2. __Review policies and procedures for employee _recruitment.
School districts must take steps to comply with the ADA
requirements at every phase of the recruitment process.
Worksheet 5-4 divides the recruitment process into key steps and
identifies tasks school districts must undertake in order to be in
compliance. For each stage of the recruitment process, the worksheet
raises key questions that should be answered by individuals with the
authority to address such issues.
-- _Advertising. It is important to ensure that the content of
job advertisements, whether internal postings, newspaper
advertisements, or solicitations through outside recruiters, is
nondiscriminatory and accurately portrays the essential functions of
the job. Procedures should be in place to ensure that job
announcements are reviewed for ADA compliance.
Worksheet 5-4 can assist you in identifying the ways in which
job vacancies are advertised, in reviewing the content of job
advertisements, and in developing procedures for content review for
future advertising.
-- _The _application _form. The content of application forms
must be reviewed to ensure that questions are not presented regarding
the existence of an applicant's disability or the nature and severity
of the disability, or that questions are not presented that
constitute medical inquiries. School districts must provide
reasonable accommodation to enable applicants with disabilities to
complete application forms. Also, the site where applicants receive
or complete applications must be accessible to and usable by persons
with disabilities.
Worksheet 5-4 can assist you in reviewing application forms to
ensure that they do not request inappropriate information, in
developing procedures to handle reasonable accommodation requests
related to the application form and in reviewing the physical
accessibility of sites where applicants receive or complete
application forms.
* Print Page 133
-- __Conducting the job _interview. Like application forms, job
interviews must not include questions that seek to determine whether
an applicant has a disability or to ascertain the nature and severity
of the disability. Medical inquiries are also prohibited. In
addition, reasonable accommodation must be provided to enable
applicants with disabilities to have equal opportunity in the
interview process. Interview sites must be accessible to and usable
by persons with disabilities.
As noted above, it is highly recommended that all staff who are
involved in the interview process undergo ADA and disability
awareness training to better prepare them for interviews of
candidates with disabilities. Your school district may want to
contact your regional Disability and Business Technical Assistance
Center for information about upcoming training or the availability of
resources you can utilize for internal training. (See _Resources.)
Worksheet 5-4 can assist you in reviewing interview questions to
ensure that they are nondiscriminatory, in developing procedures to
handle reasonable accommodation requests for job interviews, and in
reviewing the accessibility of sites where interviews take place.
-- _Job _tests. If a job test screens out, or tends to screen
out, individuals with disabilities, the test must be job-related and
consistent with business necessity.
Worksheet 5-4 assists your school district in reviewing job
tests to determine whether they relate to actual essential job
functions performed. Worksheet 5_4 also assists your school district
in reviewing procedures for handling requests for reasonable
accommodation in taking job tests.
-- __Medical inquiries and medical _examinations. It is not
permissible to require an applicant to take a medical examination or
respond to medical inquiries prior to making an offer of employment.
However, once an offer of employment has been extended, it may be
conditioned on the results of a medical examination if all
individuals in the same job category are examined and if the
information obtained is kept confidential.
Worksheet 5-4 can assist you in reviewing your school district's
procedures for medical inquiries and medical examinations of
employment applicants.
-- __Health insurance and other _benefits. Employment applicants
should not be required to complete health insurance forms, life
insurance forms, and other benefits forms that
* Print Page 134
disclose disability-related information prior to their being provided
with an offer of employment.
Worksheet 5_4 can assist your school district in reviewing its
procedures for the timing of the distribution of benefits forms to
ensure that disability-related information is not provided prior to
the post-offer stage.
-- __The personnel policies _manual.
If your school district has a personnel policies manual,
Worksheet 5-4 may assist your school district in evaluating policies
through a review of manual contents (assuming that it is up-to-date
and accurately reflects policies as practiced).
Your content review should include such topic areas as the
statement of nondiscrimination or equal opportunity, benefits, rules
of conduct/discipline, attendance/leave/sick leave, medical exam
requirements, provision of reasonable accommodation, promotion
opportunities, training, evaluation, workers' compensation and
work-related injury, dress code, confidentiality, termination, and
use of drugs/alcohol. These areas could contain provisions that are
not permissible. As appropriate, policies should be revised in order
to comply with the ADA and staff and managers should be made aware of
the revised policies.
It is important to note that the manual itself should be made
available upon request in alternative formats (such as Braille, tape,
and large print) for use by employees or prospective employees with
disabilities.
3. __Review policies and procedures that affect current
_employees.
Worksheet 5-5 assists school districts in reviewing existing
policies and practices that affect current (incumbent) employees.
For example:
-- Employers need to review their policies and procedures
to ensure that qualified employees with disabilities receive
reasonable accommodation upon request.
-- Policies related to medical exams for incumbent
employees should be reviewed to ensure that such exams are
job-related and consistent with business necessity.
-- Employee files need to be reviewed to ensure that any
confidential disability-related materials generated on or
* Print Page 135
after July 26, 1992, are segregated from other employment material.
Employers are encouraged but not required to segregate medical
information obtained prior to July 26, 1992.
-- If employers provide health insurance or other benefit
plans to employees, employers should review these plans to ensure
that employees with disabilities are accorded equal access to such
plans.
-- Policies regarding promotion, compensation, termination,
absences, dress codes, and other aspects of the employment
relationship that affect current employees should be reviewed to
ensure that they do not discriminate on the basis of disability.
-- Evaluation forms used to measure job performance should
be reviewed to ensure that they do not discriminate on the basis of
disability.
On- and off-site training or education programs must also be
included in the self-evaluation. Equal access to training information
that will enhance job skills must be provided. Training materials
must be available in alternative formats so that all employees can
benefit from them.
In addition, social, recreational, and service activities
offered for employees by the public school district must be included
in the self-evaluation. All activities of the school district,
including transportation services, day care services, and social and
recreational activities that are employer-sponsored must be
nondiscriminatory. For example, even an event held at a teacher's
home may be required to be accessible to employees with disabilities
if its purpose is job-related (i.e., a reception for new teachers'
aides that are being hired at a school).
* Print Page 136
Worksheet 5-1a IDENTIFYING ORGANIZATIONAL UNIT DECISION-MAKERS AND
REPRESENTATIVES TO THE SELF-EVALUATION SUBCOMMITTEE
SCHOOL DISTRICT: ----
NAME (ADA coordinator): ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Use this worksheet to identify employees in each unit who should
be involved in the employment self-evaluation. In the first column,
write the name of the unit; in the second, write the name of the
employment-related decision-maker(s) (e.g., individuals responsible
for hiring, promotions, and dismissals); and in the third, write the
name of the designated representative from that unit to serve on the
subcommittee that will oversee your school district's review of
employment policies and procedures.
In this empty table, columns follow each other in this order:
Name of Unit: Key Decision-Maker(s); Representative for Employment
Sub-committee.
* Print Page 137
Worksheet 5-1b
DOCUMENTING EMPLOYMENT-RELATED DECISION-MAKING FOR EACH UNIT
SCHOOL DISTRICT: ----
NAME (ADA coordinator): ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Please supply the title of the person(s) responsible for each of
the following employment-related functions and the name of the
person(s) currently performing the function. It may be helpful to
provide notes on how that function is performed in the unit.
A. New Hires
1. Advertising positions
Title of person(s) responsible ----
Name of current person(s) responsible ----
Notes about the process ----
2. Application package
Title of person(s) responsible ----
Name of current person(s) responsible ----
Notes about the process ----
3. Selection of job applicants
Category of applicant ----
Title of person(s) responsible ----
Name of current person(s) responsible ----
Notes about the process ----
Category of applicant ----
Title of person(s) responsible ----
Name of current person(s) responsible ----
Notes about the process ----
* Print Page 138
4. Medical inquiries and medical exams
Title of person(s) responsible ----
Name of current person(s) responsible ----
Notes about the process ----
5. Job tests
Title of person(s) responsible ----
Name of current person(s) responsible ----
Notes about the process ----
6. Other key hiring roles (describe) ----
__Note: Please attach a flowchart and/or organization chart that
shows how the hiring process is organized in this _unit.
B. Job Incumbents
1. Health insurance and other benefits
Title of person(s) responsible ----
Name of current person(s) responsible ----
Notes about the process ----
2. Personnel Policies
Title of person(s) responsible ----
Name of current person(s) responsible ----
Notes about the process ----
3. Employee evaluations
Title of person(s) responsible ----
Name of current person(s) responsible ----
Notes about the process ----
4. Organization of employee activities (meetings, centrally
organized social events, etc.)
Title of person(s) responsible ----
Name of current person(s) responsible ----
Notes about the process ----
* Print Page 139
Worksheet 5-1c
DOCUMENTING THE PARTICIPATION OF PEOPLE WITH DISABILITIES
SCHOOL DISTRICT: ----
NAME (ADA coordinator): ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Provide the names, contact data, and roles of persons with
disabilities who have participated in the self-evaluation of
employment policies and procedures.
Name: ----
Address: ----
Date(s): ----
Roles in self-evaluation: ----
Name: ----
Address: ----
Date(s): ----
Roles in self-evaluation: ----
Name: ----
Address: ----
Date(s): ----
Roles in self-evaluation: ----
Name: ----
Address: ----
Date(s): ----
Roles in self-evaluation: ----
* Print Page 140
Worksheet 5-2
IDENTIFYING ESSENTIAL JOB FUNCTIONS
SCHOOL DISTRICT: ----
NAME (ADA coordinator): ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
A. Job Categories
Identify all job categories that exist within this unit. For
each job category, determine the following:
-- Does a current job description exist?
-- Does the description identify essential job functions?
-- Is there a collective bargaining agreement that governs this
job category?
In this empty table, columns follow each other in this order:
Job Category: Current Job Description Exists? (Yes or No);
Description Identifies Essential Job Functions (Yes or No);
Collective Bargaining Agreement for Job Category? (Yes or No).
* Print Page 141
B. Job Descriptions
If there is no existing job description and you wish to develop
one, consider the following process:
1. Obtain descriptions of job functions from past or current
employees in the job category. Then, ask employees to: a.
distinguish between essential and marginal functions, and b. identify
the percentage of time spent performing each function.
2. Obtain descriptions from supervisors of each job category.
Then, ask supervisors to: a. distinguish between essential and
marginal functions. b. identify the percentage of time spent
performing each function; and c. assess the consequences of each
function if not performed. One way to do this is by rating each
function from 1 (serious consequences for non-performance) to 5
(negligible consequences for non-performance).
3. Develop a proposed job description identifying essential
functions.
4. Distribute job descriptions to all workers in each job
category.
Append all documentation on actions taken for determining
essential job functions to Worksheet 5-2.
* Print Page 142
Worksheet 5-3
REASONABLE ACCOMMODATIONS
SCHOOL DISTRICT: ----
NAME (ADA coordinator): ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
A. Forms of Accommodation Checklist
The left-hand column illustrates many common forms of reasonable
accommodation. For each stage of the employment process where the
reasonable accommodation indicated is already available upon request,
please mark with an X. Mark with a D those that should be
developed.
In this empty table, columns follow each other in this order:
Forms of reasonable accommodation: Recruitment/Hiring; On-the-job;
Training Activities; Social/Recreational.
Forms of reasonable accommodation
Large print materials (e.g. 18 pt)
Braille materials
Audiocassettes
Computer diskette
Readers
Interpreters
Notetakers
TDDs
Amplified & hearing-aid-compatible telephones
Assistive listening systems
* Print Page 143
E-mail
Captioning/decoders
Real-time captioning
Adaptive computer hardware
Adaptive computer software
Flex-time work schedules
Part-time work schedules
Work-site modifications
Job restructuring
Job reassignment
Other (list)
* Print Page 144
B. Identification of Accommodation Resources
To create a resource bank for accommodation resources, identify
how each of the items marked with an X within Part A is provided.
repeat the process for items marked with a D as an aid in
development.
1. Form of accommodation: ----
Source of address and telephone number: ----
Cost: ----
Notes: ----
2. Form of accommodation: ----
Source of address and telephone number: ----
Cost: ----
Notes: ----
3. Form of accommodation: ----
Source of address and telephone number: ----
Cost: ----
Notes: ----
C. Analysis of Accommodation Requests
The form on the next [print] page may be used to document
requests for accommodations and responses made. Please indicate
whether you intend to:
-- adopt this accommodation request form
-- use a different form (attach a copy)
* Print Page 145
Record of Accommodation Request
Name and title of person receiving request: ----
Organizational Unit: ----
Organizational Unit head: ----
1. Type of accommodation requested: ----
2. Date of request: ----
3. Estimated cost of providing accommodation (taking into
consideration the availability of tax credits and deductions, and/or
outside funding): ----
4. Action taken:
a. Offered requested accommodation? -- Yes -- No Date
accommodation was available for use: ----
b. Offered comparable accommodation? -- Yes -- No Accommodation
offered: -- accepted -- declined Date accommodation was accepted or
declined: ---- Further actions taken: ----
5. If the accommodation request may be considered an undue
hardship, document the following factors relevant to this decision:
a. Financial resources of entire school district (number of
employees and number, type, and location of its facilities): ----
b. Financial resources of facility or facilities involved in the
provision of the reasonable accommodation (number of employees and
effect of expenditure on available resources and expenses): ----
c. Relevant factors pertaining to operation type (composition,
structure and functions of work force, geographic separateness, and
administrative or fiscal relationships of facility or facilities in
question to the covered entity): ----
d. Impact of requested accommodation on operation of facility
(impact on ability of other employees to perform their duties and the
impact on the facility's ability to conduct business): ----
6. If undue hardship is concluded, what alternative
accommodations were offered? ----
Attach supporting documentation to completed Worksheet 5-3.
* Print Page 146
Worksheet 5-4
REVIEWING POLICIES AND PROCEDURES FOR NEW HIRES
SCHOOL DISTRICT: ----
NAME (ADA coordinator): ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
A. Advertising
1. Identify all ways in which job vacancies are advertised.
Internal posting/notice -- Yes -- No Newspaper -- Yes -- No Outside
recruiters or employment agencies -- Yes -- No Other: Describe ----
2. Describe procedures for ensuring that content of job
advertising is non-discriminatory. ----
3. Identify staff person(s) responsible for drafting content of
solicitations. Name and department. ----
4. As appropriate, review all job advertising.
ACTION STEPS: Delete all inappropriate language. As necessary,
establish guidelines and procedures for content review for all future
advertising.
* Print Page 147
5. Have relevant locations been reviewed for accessibility
(e.g., recruiter's offices, bulletin boards)? Facility Checklist
completed? -- Yes -- No Barriers identified? -- Yes -- No Plan to
remove barriers developed? -- Yes -- No Alternative accessible site
identified for permanent use or pending barrier removal, if
necessary? -- Yes -- No
ACTION STEPS: Arrange postings of job announcements at
accessible sites.
B. Application Forms
1. Identify all materials given to job applicants at the initial
interview ("application packet") stage. Forms must not contain
questions regarding the existence of an applicant's disability or the
nature and severity of the disability, or contain questions that
constitute medical inquiries. Application -- Yes -- No Release Forms
-- Yes -- No Other: Describe ----
ACTION STEPS: Review application packets. Remove all
inappropriate language or forms.
2. Describe the procedures that have been established for
handling reasonable accommodation requests related to the application
form.
ACTION STEPS: As necessary, use Worksheet 5-3 to develop
procedures for handling reasonable accommodation requests relating to
the application form. Distribute to appropriate staff. Attach
procedures.
3. Identify location(s) where applicants receive or complete
application forms: ----
4. Consider whether the site(s) where applicants receive or
complete application forms is (are) accessible, including the path of
travel to the site(s) from public transportation, parking, entrances,
etc. If appropriate, complete a Facility Checklist (Worksheet 6-4)
regarding the site(s). Facility Checklist completed -- Yes -- No
Barriers identified -- Yes -- No Plan to remove barriers developed --
Yes -- No
ACTION STEPS: Identify alternative accessible site(s) for
permanent use or pending barrier removal, if necessary.
* Print Page 148
C. Interview
1. Identify location(s) where interviews are conducted: ----
2. Consider whether the site(s) is (are) accessible, including
the path of travel to the site(s) from public transportation,
parking, entrances, etc. If appropriate, complete a Facility
Checklist (Worksheet 6-4) for the site(s). Facility Checklist
completed -- Yes -- No Barriers identified -- Yes -- No Plan to
remove barriers developed -- Yes -- No
ACTION STEPS: Identify alternative accessible site(s) for
permanent use or pending barrier removal, if necessary.
3. Describe policies and procedures that are designed to ensure
that interviews do not include questions regarding the existence of
an applicant's disability or the nature and severity of the
disability or questions that constitute medical inquiries. ----
ACTION STEPS: As appropriate, develop standardized interview
questions. Distribute to appropriate staff.
4. Do interview questions emphasize essential rather than
marginal job functions? -- Yes -- No
ACTION STEPS: Use Worksheet 5-2 to check the correlation of
interview questions with essential job functions. Modify questions
as appropriate.
5. Have staff who conduct interviews received ADA training?
(Such training is not required under the ADA but is strongly
recommended.) -- Yes -- No
ACTION STEPS: Identify staff not yet familiar with the ADA and
work with the ADA coordinator to schedule training programs or
briefings.
* Print Page 149
6. Describe the procedures that have been established for
handling reasonable accommodation requests relating to interviews.
----
ACTION STEPS: As necessary, use Worksheet 5-3 to develop
procedures for handling reasonable accommodation requests relating to
job interviews. Distribute to appropriate staff. Attach procedures.
D. Job Tests
1. Identify job tests or skills tests administered to
applicants (e.g., typing tests, spelling tests): ----
2. Do all job tests relate to actual essential job functions
performed? -- Yes -- No
ACTION STEPS: Use Worksheet 5-2 to correlate job tests with job
functions. Modify as appropriate.
3. Describe the procedures that have been established for
handling reasonable accommodation requests relating to job tests.
ACTION STEPS: As necessary, use Worksheet 5-3 to develop
procedures for handling reasonable accommodation requests relating to
job tests. Distribute to appropriate staff. Attach procedures.
E. Medical Inquiries and Medical Examinations
Once an offer of employment has been extended, it may be
conditioned on the results of a medical examination if all
individuals in the same job category are examined and if the
information obtained is kept confidential.
1. Identify positions that require a physical examination.
----
* Print Page 150
2. Are examinations required of all entering workers in the
same job category? -- Yes -- No
ACTION STEPS: Examination requirements must be the same for all
workers in the same category. Modify and publicize policy and
procedures, as needed.
3. If the results of post-offer medical injuries and
examinations screen out, or tend to screen out, applicants with
disabilities, are the criteria used job-related and consistent with
business necessity? -- Yes -- No
ACTION STEPS: Modify medical screening procedures, as
necessary. Distribute to appropriate staff.
4. Medical inquiries and medical examinations may only occur at
the post-offer and employment stages of the employment relationship.
Pre-offer medical inquiries or examinations are prohibited.
ACTION STEPS: Modify procedures, as necessary. Distribute to
appropriate staff.
F. Health Insurance and Other Benefits
1. Identify step during employment process when new hires are
asked to complete health, life and/or disability insurance forms.
ACTION STEPS: Forms that disclose disability-related
information should be completed at the post-offer stage. As
necessary, modify procedures for the timing of the distribution of
benefits forms to ensure that disability-related information is not
provided prior to the post-offer stage. Distribute procedures to
appropriate staff. Disability-identifying information generated on
or after July 26, 1992 should be placed in separate files for such
confidential information. Employers are encouraged, but not
required, to segregate disability-identifying information obtained
prior to July 26, 1992.
G. Personnel Policies Manual
1. Does the school system have a written personnel policies
manual? -- Yes -- No
2. If the school system has a written personnel policies
manual, use the following checklist to review the contents of the
personnel policies manual for compliance with the ADA:
Attendance/leave/sick leave
Benefits
Confidentiality
Dress code
Evaluations
Medical exam requirements (return to work)
Provision of reasonable accommodations
Promotion opportunities
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Rules of conduct/discipline
Statement of non-discrimination or equal opportunity
Termination
Training
Use of drugs/alcohol
Workers' compensation and work-related injury
Comment on changes necessary: ----
ACTION STEPS: Make required changes. Distribute to staff.
3. Is the personnel policies manual available in alternative
formats? -- Yes -- No Audiocassette? -- Yes -- No Braille? -- Yes --
No Large print? -- Yes -- No Computer diskette? -- Yes -- No
ACTION STEPS: Develop alternative formats, if necessary.
* Print Page 152
Worksheet 5-5
REVIEWING POLICIES AND PROCEDURES FOR CURRENT EMPLOYEES
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
1. Have job descriptions been reviewed to distinguish between
essential functions and marginal functions? -- Yes -- No
ACTION STEPS: Review job descriptions. Modify to reflect
current functions performed in job. If there are no written job
descriptions, consider developing job descriptions in order to ensure
uniformity. Provide current job descriptions to current workers.
2. Describe the procedures that have been developed for
handling reasonable accommodation requests from job incumbents. ----
ACTION STEPS: As necessary, use Worksheet 5-3 to develop
procedures for handling reasonable accommodation requests from
employees. Distribute to appropriate staff. Attach procedures.
3. Under what circumstances are medical examinations required
of incumbents? Are such examinations job-related and consistent
with business necessity? ----
ACTION STEPS: Medical examinations of incumbents must be
job-related and consistent with business necessity. If your policy
differs from this requirement, revise the policy to ensure compliance
and publicize the changes made.
* Print Page 153
Identify medical personnel who perform such exams. To ensure
that exams focus only on the ability to perform job-related
functions, provide medical personnel with job descriptions for
workers being examined.
Review medical forms and revise, if necessary, so that content
is job-related and the examination is related to the ability to
perform essential functions.
4. Have personnel files been reviewed to ensure that
information identifying disability is contained in a separate file?
-- Yes -- No
ACTION STEPS: Review all worker files. For medical information
generated on or after July 26, 1992, segregate health insurance
applications or claim forms, fitness for duty reports or other
documents that contain disability-identifying information. Create
separate files for such confidential information. Employers are
encouraged, but not required, to segregate medical information
obtained prior to July 26, 1992.
5. Have fringe benefits such as health insurance, including
self-insured plans, been reviewed to ensure equal access? -- Yes --
No
ACTION STEPS: Review policy language and practices of third
party and make changes necessary to ensure ADA compliance.
6. Have all employer-sponsored activities such as social
events, recreational activities, day care and transportation been
reviewed to ensure program accessibility and equally effective
communication for individuals with disabilities as for other
individuals? -- Yes -- No
ACTION STEPS: Identify employer-sponsored activities. Develop
and publicize procedures to ensure program accessibility and
procedures to ensure the provision of auxiliary aids and services
that are necessary for communication access.
7. Have policies and procedures for in-house transfers and
promotions been reviewed to ensure non-discriminatory treatment of
employees with disabilities? -- Yes -- No
ACTION STEPS: Revise policies and procedures to ensure
nondiscriminatory treatment.
8. Review policies regarding compensation, lay-offs, absences,
dress codes and other aspects of the employment relationship to
ensure that they do not discriminate on the basis of disability.
ACTION STEPS: Identify problem areas and take steps to correct
them.
9. Do all performance evaluation forms and procedures not
discriminate on the basis of disability? -- Yes -- No
ACTION STEPS: If not, revise evaluation forms and procedures to
ensure compliance.
10. Are all training programs offered by the unit fully
accessible to employees with disabilities? -- Yes -- No
ACTION STEPS: Access to training information may be an area
where accommodation is necessary. For example, training videos may
require captioning for persons with hearing impairments. Training
manuals and related materials should be made available in alternative
formats upon request. Identify any training materials used on an
ongoing basis that are not available in alternative formats upon
request. Develop alternative formats where appropriate.
* Print Page 154
Develop a policy and procedure to enable employees to request
training materials in alternative formats in a timely manner.
Identify a staff liaison with outside entities conducting
training. Include among this person's responsibilities both ensuring
site accessibility and providing auxiliary aids and services when
needed. Identify resources available for interpreters, assistive
listening devices, notetakers, or reader services as possible
accommodations. If appropriate, complete a Facility Checklist
(Worksheet 6-4) for sites at which training is provided.
* Print Page 155
** CHAPTER SIX PROGRAM ACCESSIBILITY
Public school systems must ensure that programs, services, and
activities are accessible to and usable by individuals with
disabilities. This chapter provides a review of the Title II
requirements regarding program accessibility, as well as a discussion
of the similarities and differences between Title II and Section 504
concerning program accessibility.
The chapter begins with a discussion of the concept of "program
accessibility." Next, it reviews the general Title II and Section 504
requirements for providing access in existing facilities, presenting
examples of the many methods of compliance that may be acceptable
under the regulations. It also discusses other significant
requirements pertinent to program accessibility in existing
facilities: providing access to historic properties and historic
preservation programs, providing access in leased space, and
developing transition plans for structural modifications found
essential to make programs accessible. The "fundamental
alteration/undue burden" exception is explained. The chapter then
reviews both Title II and Section 504 requirements for new
construction and alterations. Finally, it discusses the importance
of planning for the maintenance of accessible features.
At the end of the chapter, a practical guide to conducting the
program accessibility portion of the self-evaluation is presented.
Worksheets are provided that can be used to conduct the
self-evaluation and serve as the basis for the development of the
transition plan. School systems may use them as they are or adapt
them, to help identify areas in which nonstructural or structural
modifications may be needed in order to be in compliance.
PROGRAM ACCESSIBILITY
Ensuring program accessibility is an important aspect of
enhancing opportunity for persons with physical disabilities. Both
Title II of the ADA and Section 504 prohibit public school systems
from denying people with disabilities equal opportunity to
participate in programs, services, and activities because their
facilities are inaccessible to, or unusable by, them [28 C.F.R.
35.149 and 34 C.F.R. 104.21]. Both regulations contain two
standards to be used in determining whether a covered entity's
programs, activities, and services are accessible to individuals with
disabilities. One standard deals with "existing" facilities; the
other deals with new construction and alterations.
28 C.F.R. 35.149 Discrimination prohibited. Except as
otherwise provided in 35.150, no qualified individual with a
disability shall, because a public entity's facilities are
inaccessible to or unusable by individuals with disabilities, be
excluded from participation in, or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected
to discrimination by any public entity.
* Print Page 156
For existing facilities, Title II and Section 504 require
covered entities to operate each program so that, when viewed in its
entirety, the program is readily accessible to and usable by people
with disabilities [28 C.F.R. 35.150(a) and 34 C.F.R. 104.22(a)].
This is known as the _program _accessibility standard, and it is one
of the most important concepts in compliance planning. A covered
entity must make its programs and activities accessible unless it can
demonstrate that required modifications would result in a fundamental
alteration of the program or in undue financial and administrative
burdens. The concept of program accessibility must be understood
because it will serve as a guideline in evaluating existing
facilities and in formulating structural and nonstructural solutions
to any physical access problems found in these facilities.
Both Title II and Section 504 require that a new or altered
facility (or the part that is new or altered) be readily accessible
to and usable by individuals with disabilities [28 C.F.R. 35.151
and 34 C.F.R. 104.23]. The new construction and alterations
requirements focus on providing physical access to buildings and
facilities rather than on providing access to programs and services.
There is no fundamental alteration or undue burden limitation on the
new construction and alterations requirements.
There is a common misconception that there are many major
differences between the program accessibility requirements of Title
II and Section 504. One basic misconception is that under Section
504, only the most elementary access to a program is required (e.g.,
an accessible entrance and an accessible rest room) and that under
Title II, buildings must be fully accessible and barrier-free. In
reality, _neither regulation requires that existing buildings offer a
barrier-free environment as long as there is program accessibility.
Important similarities exist between Title II and Section 504. For
example, both regulations contain similar general requirements for
existing facilities and new construction, and alterations. However,
some significant differences between Title II and Section 504 do
exist in the following areas: (1) relevant time frames for existing
facilities; (2) actions resulting in a fundamental alteration of a
service, program, or activity or in undue financial or administrative
burdens; (3) historic properties; (4) transition plans; and (5) new
construction or alterations. These similarities and differences will
be discussed in greater detail throughout the chapter.
It is important to note that many people associate the concept
of program accessibility primarily with individuals with mobility
impairments. This is a serious error. There are less than one million
individuals who use wheelchairs in the United States. Four times as
many individuals have serious vision impairments; twenty-four times
as many individuals have hearing impairments. School district
officials must ensure that their programs and activities are
accessible to qualified individuals with many
* Print Page 157
different types of disability. To meet this obligation, school
district officials should ensure that, when they conduct the program
accessibility portion of the self-evaluation, they consider such
issues as providing accessible building signage, providing alarms
with visible signals, and providing accessible public telephones.
(This requirement is in addition to the school district's obligation
to ensure effective communication for individuals with disabilities,
which is discussed in Chapter Seven.)
Questions are frequently asked regarding whether school
districts must provide program accessibility to parents, guardians,
and members of the public with disabilities. As discussed in Chapter
Two, under Title II and Section 504, school districts must provide
program accessibility to parents, guardians, and members of the
public with disabilities for programs, activities, or services that
are open to parents or to the public, such as parent-teacher
organization meetings, athletic events, plays, and graduation
ceremonies.
PROGRAM ACCESS IN EXISTING FACILITIES
Under Title II, an existing facility includes facilities that
were already constructed, or for which ground-breaking had begun,
prior to the effective date of the Title II regulation (January 26,
1992). Under the Section 504 regulation for federally assisted
programs, an existing facility is defined as any facility that was
already constructed, or for which ground-breaking had begun, prior to
the effective date of the Section 504 regulation (June 3, 1977).
Depending on the date of construction, some facilities may be
existing facilities for purposes of Title II but also constitute new
construction under the Section 504 regulation. These include
buildings constructed on or after June 3, 1977, but before January
26, 1992. In these cases, school systems required to comply with both
the Title II and the Section 504 regulations must meet not only the
standards for existing facilities under Title II, but also the
applicable facility accessibility standards for new construction and
alterations under Section 504.
As mentioned earlier in the chapter, both Title II and Section
504 require covered entities to operate each program or activity
located in an existing facility in such a way that the programs and
activities, when viewed in their entirety, are readily accessible to
and usable by individuals with disabilities [28 C.F.R. 35.150(a)
and 34 C.F.R. 104.22(a)]. (The specific language of Title II also
refers to services.) Under both regulations, accessibility to
existing structures is defined functionally. Neither regulation
requires public entities or recipients to make all existing
facilities, or every part of the existing facility, accessible to and
usable by individuals with disabilities, as long as the program
viewed as a whole is accessible.
* Print Page 158
What is a Program or Activity?
Under Title II and Section 504, the term "program or activity"
embraces the programs, activities, and services offered by a covered
entity in fulfillment of its mission. It spans all offerings open to
any of the audiences served by the school district. The following are
examples of programs or activities that, when viewed in their
entirety, must be readily accessible to and usable by individuals
with disabilities: academic programs; food services; library
services; health services; counseling; physical education; athletics;
recreation; transportation; extracurricular activities, including
school clubs and other after-school activities, as well as plays,
concerts, or other performances open to the public; parent-teacher
organization activities; graduation ceremonies; vocational programs;
apprenticeship programs; and employer recruitment opportunities.
This list is, of course, not intended to be exhaustive.
The school district should also consider the entire scope of its
overall operation as one program made up of several parts or
elements. In conducting the program review, the school district
should examine each of the parts or elements that make up the whole.
The district should ensure that its entire program, when viewed as a
whole, is readily accessible to and usable by individuals with
disabilities.
Classroom Buildings, Support Facilities, and Public Events
In order to understand more fully the concept of viewing
programs or activities offered in existing facilities "in their
entirety," the following discussion presents the application of the
program accessibility standard for existing facilities to classroom
buildings, programs and activities open to parents or to the public,
and support facilities.
28 C.F.R. 35.150. Existing facilities.
(a) _General. A public entity shall operate each service,
program, or activity so that the service, program, or activity, when
viewed in its entirety, is readily accessible to and usable by
individuals with disabilities. This paragraph does not--
(1) Necessarily require a public entity to make each of its
existing facilities accessible to and usable by individuals with
disabilities.
With respect to existing facilities, school systems should
provide for access to persons with disabilities at schools dispersed
throughout their service area so that students with disabilities can
attend school at locations comparable in convenience to those
available to students without disabilities. School districts do not
have to make all of their existing classroom buildings accessible to
students with disabilities, provided that all programs offered in
inaccessible classroom buildings are also available in other
accessible schools in the district, and that the accessible schools
are comparable in convenience to those available to students without
disabilities. It is important to note that school districts may not
make only one facility or part of a facility accessible if the result
is to segregate students with disabilities in a single setting. Also,
where "magnet" schools, or schools offering different curricula or
instruction techniques, are available, the range of choice provided
to students with disabili-
* Print Page 159
ties must be comparable to that offered to students without
disabilities.
Example: Is this school system's program, taken as a whole,
accessible to persons with disabilities?
There are six elementary school buildings in a school district,
of which four are one-story and two are two-story. The two-story
buildings were constructed in 1958 and 1960, respectively, and are
not physically accessible to persons with mobility impairments. All
programs offered in the two-story buildings are available in the four
other elementary schools, which are readily accessible to and usable
by persons with disabilities. Special planning was done so that
persons with disabilities can participate in all programs and
activities. The amount of travel time from the homes of persons with
disabilities to the accessible schools is comparable to the amount of
time traveled by other children without disabilities within the
school district of the same age. The school district is in compliance
with Section 504 and Title II.
As discussed in Chapter Two and earlier in this chapter, public
school systems must ensure that their programs are accessible to
parents, guardians, and members of the public with disabilities as
well as to students. This requirement includes all programs,
activities, or services that are open to parents or to the public,
such as parent-teacher organization meetings, plays, and graduation
ceremonies. With respect to existing facilities, school districts may
satisfy their obligations to make programs accessible to parents who
have disabilities by reassigning their child to a school facility
that is accessible.
This broader view of looking at programs in their entirety is
also the approach Title II and Section 504 take toward such support
facilities as rest rooms, water fountains, and parking spaces in
existing facilities. Sufficient numbers of these accessible elements
should exist that are reasonably convenient, usable in inclement
weather, and appropriate to the use of a facility. Usage of the
building is an important factor in addressing program accessibility
concerns such as the number of rest rooms and drinking fountains
required. Buildings in which an individual may spend extended periods
of time should meet a higher degree of accessibility than those in
which an individual spends relatively short periods of time.
Existing Facilities and Architectural Accessibility Standards
It is important to understand that whether a particular program
or activity is accessible is determined not by compliance with an
architectural accessibility standard but by considering whether
* Print Page 160
the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities. However,
in an assessment of program accessibility in existing facilities,
facility accessibility standards such as the Americans with
Disabilities Act Accessibility Guidelines for Buildings and
Facilities (ADAAG) or the Uniform Federal Accessibility Standards
(UFAS) may be used as a guide to understanding whether individuals
with disabilities can participate in the program, activity, or
service. ADAAG and UFAS are the architectural standards that
constitute compliance with the Title II requirements for new
construction and alterations; * UFAS also constitutes compliance with
the Section 504 requirements for new construction and alterations.
* On June 20, 1994, the Department of Justice issued a notice of
proposed rulemaking in the Federal Register which proposes that the
Title II regulation be amended to incorporate, as the ADA Standards
for Accessible Design (ADA Standards), the ADA Accessibility
Guidelines for Buildings and Facilities (ADAAG) as revised in an
interim final rule that was published on the same day by the
Architectural and Transportation Barriers Compliance Board (ATBCB).
The Department of Justice's proposed rule would establish new ADA
standards for new construction and alterations covered by Title II.
(See [print] page 171 for a more complete discussion of the
Department of Justice's notice of proposed rulemaking and the ATBCB's
interim final rule.)
At the end of this chapter, a Facility Checklist is provided
that public school systems can use to assist in identifying
architectural barriers, as well as communication barriers that are
structural in nature. The Checklist is based on ADAAG.
Methods of Compliance
Although the program accessibility standard is a rigorous one,
both the Title II and Section 504 regulations permit considerable
flexibility in how the standard can be met. Both structural and
nonstructural methods of achieving program accessibility are
acceptable.
Although nonstructural methods of achieving program
accessibility are acceptable, nonstructural solutions should not have
the effect of segregating people with disabilities or compromising
their dignity and independence. Priority consideration must be given
to offering programs or activities in the most integrated setting
appropriate [28 C.F.R. 35.150(b)(1) and 34 C.F.R. 104.22(b)].
28 C.F.R. 35.150 Existing facilities.
(b) _Methods. (1) _General ... A public entity is not required
to make structural changes in existing facilities where other methods
are effective in achieving compliance with this section ... In
choosing among available methods for meeting the requirements of this
section, a public entity shall give priority to those methods that
offer services, programs, and activities to qualified individuals
with disabilities in the most integrated setting appropriate.
If no effective nonstructural alternatives can be provided to
achieve program accessibility, public school systems must make the
necessary structural changes [28 C.F.R. 35.150(b)(1) and 34 C.F.R.
104.22(b)]. These changes must conform to standards for new
construction and alterations.
* Print Page 161
Some acceptable methods of making programs accessible are
discussed below.
1. __Reassignment of services to an accessible _location. The
relocation of programs and activities to accessible locations is one
method of making programs and activities accessible. For example,
classes or activities can be relocated to accessible ground-level
floors within a building or reassigned to other buildings that are
accessible [28 C.F.R. 35.150(b)(1) and 34 C.F.R. 104.22(b)].
Example: Is program relocation an appropriate option for this
school?
A two-story elementary school building was constructed in 1952.
The primary entrance, the gymnasium, the cafeteria, the
administrative offices, and the library were altered and made
accessible to and usable by persons with disabilities. Classrooms,
rest rooms, and drinking fountains on the ground-level floor of the
building were also altered in order to make the ground-level floor of
the building accessible to and usable by persons with disabilities. A
sufficient number of parking spaces were redesigned in order to be
made accessible to and usable by persons with disabilities.
Appropriate vertical signs showing the international symbol of
accessibility were placed at the accessible parking spaces.
However, no alterations were made on the second floor, and the
building has no elevator. Fourth grade classrooms are located on the
second floor.
A student with a mobility impairment enrolls as a fourth grader
in the school. The school may achieve program accessibility by
relocating the programs and activities that the student will be
attending to the first floor.
2. __Purchase, redesign, or relocation of _equipment. Other
methods of making programs accessible include the purchase, redesign,
or relocation of equipment [28 C.F.R. 35.150(b)(1) and 34 C.F.R.
104.22(b)]. "Equipment" includes items that generally make the
building functional as well as items that are integral to
participation in specific programs, activities, or services, such as
work stations, study carrels, and machinery. In many cases,
equipment can simply be relocated or raised or lowered to make it
usable by an individual with disabilities; in other cases, redesign
may be necessary. Redesign of equipment may be a fairly simple and
inexpensive process, such as relocating a control panel, replacing
grip/twist devices (e.g., doorknobs and drinking fountain faucets)
with levers, altering door closure devices, and providing audible or
visual signals for individuals with visual or hearing impairments.
* Print Page 162
It is important to note that the effectiveness of various
alternatives should be considered before undertaking the redesign of
equipment. For example, a fire alarm that has not been wired to give
a visual as well as an audible signal does not automatically violate
the Section 504 or Title II regulations. If other methods of
communicating danger to individuals with hearing disabilities are
provided and are effective in emergency situations, visual signals
are not required. In classrooms, cafeterias, and auditoriums, there
are generally sufficient numbers of people who would be aware of
danger that risk to a person with a hearing disability would be
minimal. However, there are situations in which such activity could
not be perceived and oral communication would be ineffective. Such
situations might include library study areas or other relatively
isolated areas. In such cases, redesign of equipment may be the only
effective means of communicating danger to individuals with hearing
disabilities.
3. _Assignment _of _aides. In some circumstances, aides may be
assigned to perform certain tasks that will enable persons with
disabilities to participate in programs [28 C.F.R. 35.150(b)(1) and
34 C.F.R. 104.22(b)]. For example, aides may be required to ensure
that persons with disabilities are able to exit safely from program
areas in the event of an emergency. Also, if equipment in a
laboratory class is inaccessible to a student with a disability, in
order to meet the program accessibility requirements of Title II and
Section 504, a human aide may be assigned to assist the student in
the laboratory class. In addition, aides may retrieve books for
students with mobility impairments if portions of the library are
inaccessible. The aides must be available during the operating hours
of the library.
4. __Structural changes to eliminate _barriers. Although
structural changes to make existing facilities accessible are not
required as a matter of course, they must be undertaken if there is
no alternative means to achieve program accessibility [28 C.F.R.
35.150(b)(1) and 34 C.F.R. 104.22(b)]. Structural changes include
such alterations as installing a ramp, widening a doorway, or
lowering a toilet. As mentioned earlier, structural changes must
conform to standards for new construction and alterations [28 C.F.R.
35.150(b)(1) and 34 C.F.R. 104.22(b)].
Example: Are structural changes required in order to eliminate
barriers in this high school?
A school district has one international relations magnet high
school. The school building, which was constructed in 1956, is
inaccessible to persons with disabilities. Inaccessible elements of
the school building include, but are not limited to, the following:
* Print Page 163
-- The two principal entrances to the first floor of the
school are not accessible because of stairs;
-- The doors to all the classrooms and rest rooms are 28
inches wide;
-- The entrances to the stalls in the rest rooms are 30
inches wide, and there is no maneuvering room in any of the stalls;
and
-- The second and third floors of the building can be reached
only by using stairways.
Since this building houses the district's only international
relations magnet high school program, either the entire program would
have to be relocated to an accessible site or structural
modifications to this building would be required. Structural changes
that are made at the present time would have to be consistent with
ADAAG, UFAS, or substantially equivalent standards. (See the
discussion of ADAAG and UFAS on [print] pages 170-173.)
The lack of access to the second or third floors may not be a
violation of the law if required alterations are made on the first
floor of the building, and if programs offered on the second and
third floors can be relocated to the first floor when persons with
disabilities enroll in these programs. However, if these programs
cannot be relocated to the first floor, an elevator or platform lift
may have to be installed.
If structural modifications are undertaken, required structural
changes would include the following:
-- the installation of a ramp so that one principal entrance
to the first floor is accessible;
-- for a sufficient number of classrooms, including those
where specialized programs are located (e.g., a science lab), at
least one door leading into or providing an exit for classrooms would
have to be widened; and
-- a sufficient number of rest rooms would have to be altered
that are reasonably convenient and appropriate to the use of the
facility.
It is important to keep in mind that structural changes include
not only those required in order to provide access to persons with
mobility impairments, but also those required to render the program
accessible to persons with other disabilities. For example, people
with hearing impairments may require assistive listening systems. The
full range of disabilities should be kept in mind as program
accessibility is considered.
* Print Page 164
Under Title II, any needed structural changes must be made as
soon as possible, but no later than January 26, 1995 [28 C.F.R.
35.150(c)]. By July 26, 1992, public entities that employ 50 or more
persons were required to have developed a transition plan that sets
forth the steps necessary to make structural changes [28 C.F.R.
35.150(d)(1)]. It is important to note that school districts are in
violation of Section 504 if they have not already made structural
changes that they are required to have made to ensure program
accessibility under Section 504. This Guide recommends that school
districts prioritize and implement structural modifications in order
to ensure Section 504 compliance as quickly as possible.
Some schools, faced with severe accessibility problems, have
considered the use of back doors and freight elevators to satisfy the
program accessibility requirement. Such measures are acceptable only
as a last resort and only if the arrangement provides accessibility
comparable to that provided to persons without disabilities. If the
back door in question is ordinarily locked and can be accessed only
by loud knocking that the maintenance crew may or may not hear, then
a plan to provide access by means of the back door is not acceptable.
A back door is acceptable only if it is kept unlocked during the same
hours the front door remains unlocked; if the passageway to and from
the floor is accessible, well-lit, and neat and clean; and if the
individual with a mobility impairment does not have to travel
excessive distances or through such non-public areas as kitchens and
storage rooms to gain access. A freight elevator would be acceptable
if it were upgraded so as to be usable by passengers generally and if
the passageways leading to and from the elevator are well-lit and
neat and clean.
In considering such means of access, school systems should bear
in mind the security requirements of students with disabilities.
Students with disabilities should not be required to use poorly
lighted entrances or otherwise take undue personal security risks
compared to other students.
Questions are frequently raised regarding whether carrying an
individual with a disability is an acceptable method of providing
program access. Carrying is contrary to the goal of providing
accessible programs, which is to foster independence. Carrying a
person with a disability to achieve program accessibility is
therefore unacceptable, except in manifestly exceptional cases [28
C.F.R. 35.150(b)(1) (Preamble)].
In the very limited situations in which carrying is permitted,
carriers must be instructed on the safest and most dignified means of
carrying and the service must be provided in a reliable manner [28
C.F.R. 35.150(b)(1) (Preamble)]. Liability issues may be relevant
when this option is being considered. School representatives are
encouraged to consult with persons with disabilities on the most
acceptable method of providing access.
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FUNDAMENTAL ALTERATIONS OR UNDUE BURDENS
The Title II regulation does not require a public entity to take
any action that would result in a fundamental alteration in the
nature of its service, program, or activity or in undue financial and
administrative burdens [28 C.F.R. 35.150(a)(3)]. This provision
codifies case law interpreting the Section 504 regulation for
federally assisted programs.
28 C.F.R. 35.150 Existing facilities. (a) _General ... (3) ...
In those circumstances where personnel of the public entity believe
that the proposed action would fundamentally alter the service,
program, or activity or would result in undue financial and
administrative burdens, a public entity has the burden of proving
that compliance with 35.150(a) of this part would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the head of a public
entity or his or her designee after considering all resources
available for use in the funding and operation of the service,
program, or activity, and must be accompanied by a written statement
of the reasons for reaching that conclusion. If an action would
result in such an alteration or such burdens, a public entity shall
take any other action that would not result in such an alteration or
such burdens but would nevertheless ensure that individuals with
disabilities receive the benefits or services provided by the public
entity.
Compliance with the Title II program accessibility provisions
will not generally result in an undue financial or administrative
burden [28 C.F.R. 35.150(a)(3) (Preamble)]. Individuals with
disabilities should have access to public entities' programs in all
but the most unusual situations. When a school district does justify
noncompliance by claiming that compliance would result in a
"fundamental alteration" to its program or constitute an "undue
burden," the Title II regulation places the burden of proof on the
school district [28 C.F.R. 35.150(a)(3)]. Further, a decision
regarding whether a burden is undue must be based on all of the
public entity's resources available for use in the funding and
operation of the service, program, or activity [28 C.F.R.
35.150(a)(3)].
Although Title II does not specifically define the elements of
an undue burden, school districts may want to look to the following
factors, spelled out under Title I of the ADA, for guidance in
determining whether an undue burden exists:
-- the nature and cost of the particular action;
-- the overall financial resources available to fund the
specific program in question and the effect of resource expenditure
on the rest of the expenses and resources of the program;
-- the overall financial resources of the school district;
-- the size of the school district, as measured in numbers of
employees and students, and the number, type, and location of
facilities; and
-- the relationship of the program element in question to the
program as a whole (in terms of geographic and administrative
relationships) [See 29 C.F.R. 1630.2(p)(2)].
The Title II regulation contains requirements for documenting
the claim of undue burden or fundamental alteration that are not
contained in the Section 504 regulation. Under Title II, the decision
that compliance would result in an undue burden or fundamental
alteration must be made by the head of the public entity or his or
her designee [28 C.F.R. 35.150(a)(3)]. In addition, the decision
must be accompanied by a written statement of the reasons for that
decision [28 C.F.R. 35.150(a)(3)].
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Finally, the undue burden/fundamental alteration defense is not
absolute [28 C.F.R. 35.150(a)(3) (Preamble)]. It does not relieve
public school systems of all obligations to individuals with
disabilities. Public school systems must still take any other steps
that do not result in an undue burden or fundamental alteration but
are necessary to ensure that individuals receive the benefits or
services provided by the school district [28 C.F.R. 35.150(a)(3)
(Preamble)].
DESIGNATED HISTORIC BUILDINGS
Some school systems may include buildings that have a historic
designation. The Title II regulation makes a distinction between
public entities that conduct all or a portion of their programs in
historic properties and public entities that conduct historic
preservation programs that have preservation and experience of the
historic property as primary purposes. Requirements regarding these
two distinct types of programs are presented below.
_Historic _properties. Historic properties are properties listed
or eligible for listing in the National Register of Historic Places
or designated as historic under state or local law [28 C.F.R.
35.104]. The Title II regulation provides that a public entity is not
required to take any action that would threaten or destroy the
historic significance of a historic property [28 C.F.R.
35.150(a)(2)]. This provision was included in order to avoid possible
conflicts between the Congressional mandate to preserve historic
properties and the mandate to make all programs and activities
located in existing facilities accessible to individuals with
disabilities [28 C.F.R. 35.150(b)(2) (Preamble)].
Where public school systems conduct all or a portion of their
programs in historic properties and the preservation and experience
of the historic property itself are not primary purposes of the
program, the historic property itself is not the program.
Nonstructural changes that could be made to render the program
accessible would include relocating all or part of the program to an
accessible facility, purchasing or redesigning equipment, or using
other standard methods of program accessibility that would not
threaten or destroy significant historic features of the property [28
C.F.R. 35.150(b)(2) (Preamble)]. These changes should be made as
expeditiously as possible.
_Historic _preservation _programs. Historic preservation
programs are programs conducted by a public entity that have
preservation of historic properties as a primary purpose (e.g., a
tour of a historic building). Special program accessibility
requirements and limitations apply to historic preservation programs.
Because a primary benefit of the program is the unique experience of
the historic property itself, public entities are required to give
priority to methods that provide physical access to individuals with
* Print Page 167
disabilities [28 C.F.R. 35.150(b)(2) (Preamble)]. Although the
Title II regulation encourages public entities to give priority to
methods that provide physical access, the Title II regulation does
not require any action that would threaten or destroy the historic
significance of the property or result in fundamental alterations in
the nature of the program or in an undue burden [28 C.F.R.
35.150(b)(2) (Preamble)].
Some nonstructural methods of achieving compliance, such as
relocation to another facility, are not appropriate for historic
preservation programs; the essence of the program or activity
involves the experience of the historic property itself. Where it is
not possible to provide physical access without threatening or
destroying the historic significance of the property, fundamentally
altering the nature of the program, or incurring an undue burden,
creative methods of achieving program access must be sought that will
offer persons with disabilities an appropriate experience of the
historic property itself. For example, access might be provided by:
-- using video tapes, audiotaped descriptions, photographs,
slide shows, or other means to depict portions of a historic property
that cannot be made architecturally accessible; or
-- assigning persons to guide individuals with disabilities
into or through portions of the property that cannot otherwise be
made accessible [28 C.F.R. 35.150(b)(2)].
Other innovative methods of rendering the program as accessible
as possible may also be acceptable.
While the U.S. Department of Education's Section 504 regulation
for federally assisted programs does not specifically mention
historic properties, historic properties must also satisfy Section
504 program accessibility requirements. As with the Title II
regulation, Section 504 is interpreted with enough flexibility to
permit recipients of federal financial assistance to make programs
accessible without impairing the integrity of historical facilities.
No distinction has been made under Section 504, however, between
historic properties and historic properties that are part of historic
preservation programs.
PROVIDING ACCESS IN LEASED SPACE
Under the Title II regulation, school systems are encouraged,
but not required, to lease accessible space. However, once a leased
facility is occupied, the school system must provide access to all
programs, services, and activities conducted in that space [28 C.F.R.
35.151(c) (Preamble)]. The Section 504 regulation contains a
similar requirement [34 C.F.R. 104.4(b)(6)]. Leased facilities are
subject to the program accessibility requirements for
* Print Page 168
existing facilities or new construction and alterations, depending
upon the date that the buildings were constructed or altered [28
C.F.R. 35.151(c) (Preamble)].
Obviously, the more accessible the space is to begin with, the
fewer structural modifications will be required for particular
employees whose disabilities may necessitate barrier removal as a
reasonable accommodation. It will also be both easier and less costly
to make programs and activities accessible to and usable by other
individuals with disabilities [28 C.F.R. 35.151(c) (Preamble)].
The Department of Justice suggests that public entities attempt
to locate space that complies, at a minimum, with the federal
requirements for leased buildings contained in the Minimum Guidelines
and Requirements for Accessible Design published in the Architectural
Barriers Act of 1968 at 36 C.F.R. 1190.34 [28 C.F.R. 35.151(c)
(Preamble)]. These guidelines, which apply to the federal government,
require that all leased buildings have: (1) an accessible route from
an accessible entrance to the building to the parts of the building
where the principal activities for which it was leased take place;
(2) accessible rest rooms; and (3) accessible parking facilities.
Since the school system is responsible for ensuring
accessibility to school functions that may be held off the school
grounds--even those held for only one night, such as formal dances or
receptions--it is recommended that school systems notify all
components that have the authority to lease facilities for school
functions of this obligation. It is important to ensure that the
appropriate individuals are fully aware of program accessibility
requirements as they plan conferences, social functions, or other
gatherings on behalf of the school. In addition, vendors, private
foundations, and other entities that lease space from the school
district in order to provide services to the district should be
included in the program accessibility self-evaluation. As contracts
are renegotiated, accessibility requirements should be addressed in
the contracts.
TRANSITION PLANS
As discussed in Chapter Three, both Title II and Section 504
require covered entities to develop transition plans that set forth
the steps necessary to make structural changes to achieve program
accessibility [28 C.F.R. 35.150(d) and 34 C.F.R. 104.22(e)].
Under Title II, public entities that employ 50 or more persons were
required to have developed the plan by July 26, 1992 [28 C.F.R.
35.150(d)(1)]. Under Section 504, all recipients of federal funds
that make structural changes to achieve program accessibility were
required to have developed a plan by December 3, 1977 [34 C.F.R.
104.22(e)].
28 C.F.R. 35.150(d) Transition Plan. (1) In the event that
structural changes to facilities will be undertaken to achieve
program accessibility, a public entity that employs 50 or more
persons shall develop, within six months of January 26, 1992, a
transition plan setting forth the steps necessary to complete such
changes. A public entity shall provide an opportunity to interested
persons, including individuals with disabilities or organizations
representing individuals with disabilities, to participate in the
development of the transition plan by submitting comments. A copy of
the transition plan shall be made available for public inspection.
* Print Page 169
Scope
A Title II transition plan is required to include only programs
and policies that were not previously included in a Section 504
transition plan [28 C.F.R. 35.150(d)(4)]. Since programs may have
changed significantly since the old plan was prepared, many public
entities may find it simpler to include all of their operations in
the transition plan than to attempt to identify and exclude
specifically those that were addressed in a previous plan [28 C.F.R.
35.150(d)(4) (Preamble)]. It should also be noted that public
entities that are covered under Section 504 are not shielded from
obligations under that statute, such as deadlines for making required
structural changes, merely because they have met the Title II
transition plan requirement [28 C.F.R. 35.150(d)(4) (Preamble)].
Contents
School systems must develop a transition plan that documents
structural barriers that have been identified and how they will be
removed. Required contents for the Title II transition plan include:
-- a list of the physical barriers in a public entity's
facilities that limit the accessibility of its programs, activities,
or services to individuals with disabilities, including structural
communication barriers (see Chapter Seven);
-- a description of the methods to be utilized to remove
these barriers and make the facilities accessible;
-- the schedule for taking the necessary steps to achieve
compliance with Title II (if the time period for achieving compliance
is longer than one year, the plan should identify the interim steps
that will be taken during each year of the transition period);
-- the timeline for providing curb cuts, if the public entity
has responsibility over streets, roads, or walkways; and
-- the name of the official responsible for the plan's
implementation [28 C.F.R. 35.150(d)(2) and (3)].
Both the Section 504 and Title II regulations specify that the
transition plan include the identification of physical obstacles, the
description of methods to make programs accessible, steps for
achieving accessibility, and the identification of the person
responsible for implementation [28 C.F.R. 35.150(d)(3) and 34
C.F.R. 104.22(e)]. However unlike Section 504, Title II
specifically requires public entities with responsibility for
streets, roads, or walkways to include in their transition plans a
schedule for providing curb ramps or other sloped areas at all
locations where
* Print Page 170
pedestrian walks cross curbs en route to a building where a program
is offered or to a location that provides access to public
transportation [28 C.F.R. 35.150(d)(2) and 28 C.F.R.
35.150(d)(2) (Preamble)].
Participation of Persons with Disabilities in Plan Development
The Title II regulation states that public entities shall
provide an opportunity for interested persons, including persons with
disabilities or organizations representing individuals with
disabilities, to participate in the development of transition plans
by submitting comments [28 C.F.R. 35.150(d)(1)]. The Section 504
regulation for federally assisted programs states that the transition
plan shall be developed with the assistance of interested persons
with disabilities, but does not specify the method of assistance [34
C.F.R. 104.22(e)].
Deadline for Completion
Under the Title II regulation, structural changes must be made
as expeditiously as possible, but they should have been made by
January 26, 1995, which is three years from the effective date of the
Title II regulation [28 C.F.R. 35.150(c)]. Under the Section 504
regulation, structural changes were to be made by June 3, 1980 [34
C.F.R. 104.22(d)].
NEW CONSTRUCTION AND ALTERATIONS
Both Title II and Section 504 require that a new or altered
facility (or the part that is new or altered) be readily accessible
to and usable by individuals with disabilities [28 C.F.R. 35.151
and 34 C.F.R. 104.23]. However, Section 504 and Title II have
different relevant time frames that are applicable to new
construction and alterations, as well as different architectural
accessibility standards that constitute compliance with requirements
for new construction and alterations. Also, unlike Section 504, Title
II has requirements regarding curb ramps and alterations to historic
properties.
28 C.F.R. 35.151 New construction and alterations. (a)
_Design _and _construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a public entity shall
be designed and constructed in such manner that the facility or part
of the facility is readily accessible to and usable by individuals
with disabilities, if the construction was commenced after January
26, 1992.
Coverage Under Title II
Under Title II, public school systems currently have a choice of
adopting either UFAS or ADAAG in designing, constructing, or altering
facilities on or after January 26, 1992 [28 C.F.R. 35.151(c)].
ADAAG, which is the accessibility standard for privately owned places
of public accommodation and commercial facilities under Title III of
the ADA, has been adopted for interim use under Title II.
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28 C.F.R. 35.151(b) _Alteration. Each facility or part of a
facility altered by, on behalf of, or for the use of a public entity
in a manner that affects or could affect the usability of the
facility or part of the facility shall, to the maximum extent
feasible, be altered in such manner that the altered portion of the
facility is readily accessible to and usable by individuals with
disabilities, if the alteration was commenced after January 26, 1992.
It is important to note that on June 20, 1994, the ATBCB
published in the Federal Register an interim final rule which
proposes that ADAAG be supplemented to include additional standards
for state and local government facilities. On the same day, the
Department of Justice published in the Federal Register a notice of
proposed rulemaking which proposes that the Title II regulation be
amended to adopt ADAAG, as revised in the ATBCB's interim final rule,
as the ADA Standards for new construction and alterations covered by
Title II. The ADA Standards would apply to facilities designed,
constructed, or altered after the effective date of the amendment to
Title II. Both proposed rules provide a 60-day comment period. Upon
review of comments, the Department of Justice may publish a final
rule to amend the Title II regulation to reference the new ADA
Standards.
Coverage Under Section 504
For buildings constructed or altered on or after June 3, 1977,
but prior to January 18, 1991, recipients of federal financial
assistance are deemed to be in compliance with the Section 504
regulation through compliance with the American National Standards
Institute (ANSI) Standards A117.1--1961 (R 1971) or substantially
equivalent standards [34 C.F.R. 104.23(c)]. Effective January 18,
1991, the ANSI standards were superseded by UFAS. All new
construction and alterations to existing facilities made after
January 18, 1991 must meet the minimum requirements of UFAS to be
deemed in compliance with Section 504. In addition, while the Section
504 regulation provides that compliance with the provisions of UFAS
constitutes compliance with the provisions of Section 504, the
Department of Justice has taken the position that compliance with
ADAAG would also constitute compliance with Section 504 requirements.
Thus, a recipient could opt to comply with the ADAAG standards and
would be in compliance with both Section 504 and Title II.
28 C.F.R. 35.151(c) _Accessibility _standards. Design,
construction, or alteration of facilities in conformance with the
Uniform Federal Accessibility Standards (UFAS) (Appendix A to 41 CFR
part 101-19.6) or with the Americans with Disabilities Guidelines for
Buildings and Facilities (ADAAG) (Appendix A to 28 CFR part 36) shall
be deemed to comply with the requirements of this section with
respect to those facilities, except that the elevator contained in
4.1.3(5) and 4.1.5(1)(j) of ADAAG shall not apply. Departures from
particular requirements of either standard by the use of other
methods shall be permitted when it is clearly evident that equivalent
access to the facility or part of the facilities is thereby
provided.
At the present time, a public entity is free to adopt either
UFAS or ADAAG in constructing each of its facilities. However, once
the choice of standards has been made, the entity must consistently
utilize the standard in the construction of the particular facility
for which it was adopted. For example, a public entity may not follow
ADAAG on one floor of a new building and then follow UFAS on the next
floor [__The Americans with Disabilities Act Title II Technical
Assistance _Manual, U.S. Department of Justice, November 1993, page
23].
Because it is anticipated that the Title II regulation will be
amended in the near future to reference the new ADA Standards, and
because compliance with ADAAG would constitute compliance with
Section 504 requirements, this Guide suggests that, with respect to
new construction and alterations that are in only the planning and
design stages, school districts adopt ADAAG when constructing or
renovating the facilities.
* Print Page 172
Coverage Under Both Title II and Section 504
As discussed earlier in the chapter, a public entity covered
under both Title II and Section 504 could operate a facility that
would be an _existing facility under Title II and yet constitute _new
_construction under Section 504 (e.g., where a facility was built
before January 26, 1992, but on or after June 3, 1977). In these
cases, public entities that are also recipients of federal financial
assistance must meet the program accessibility requirements for
existing facilities under Title II as well as the accessibility
standards for new construction under Section 504.
ADAAG and UFAS
Both ADAAG and UFAS are based on model design standards
generated by the American National Standards Institute and, as a
result, have a similar format. However, while the requirements of
ADAAG and UFAS are generally consistent, there are a number of
significant differences. For example, ADAAG contains requirements for
TDDs in new construction, while UFAS does not [ 4.1.3(17)(c),
__Americans with Disabilities Act Accessibility Guidelines for
Buildings and _Facilities (1991)]. Unlike UFAS, ADAAG requires
Braille on signs designating permanent rooms and spaces (e.g., rest
room signs, room numbers, exit signs) and on elevator hoistway
entrances and elevator car control indicators [ 4.1.2(7),
4.1.3(16)(a), 4.30.4, 4.10.5, and 4.10.12(2), __Americans with
Disabilities Act Accessibility Guidelines for Buildings and
_Facilities (1991]. There are also differences in the requirements
concerning seating and assistive listening systems in assembly areas,
the number of accessible check-out aisles in mercantile facilities,
and the spacing between the top of handrail gripping surfaces and
ramp surfaces [ 4.1.2(18), 4.33.3, 4.33.7, 7.3 and 4.8.5(5),
__Uniform Federal Accessibility _Standards and 4.1.3(19), 4.33.3,
4.33.7, 7.3 and 4.8.5(5), __Americans with Disabilities Act
Accessibility Guidelines for Buildings and _Facilities (1991)].
Public school systems that choose to follow ADAAG are not
entitled to the elevator exemption contained in ADAAG [28 C.F.R.
35.151(c)]. Under ADAAG, elevators are not required in facilities
that have fewer than three stories or fewer than 3000 square feet per
story [ 4.1.6(1)(k)(i), __Americans with Disabilities Act
Accessibility Guidelines for Buildings and _Facilities (1991)]. The
Title II regulation does not permit the application of a lesser
standard than Section 504. Since the elevator exemption results in
application of a lesser standard, it therefore does not apply when
public entities follow ADAAG [28 C.F.R. 35.151(c) (Preamble)].
Due to the existence of a wide range of disabilities that vary
in severity, it is important to understand that ADAAG and UFAS
requirements are _minimum accessibility requirements. There may be
situations when a facility may not be accessible to a particular
person with disabilities even though the institution is adhering to
* Print Page 173
the minimum requirements specified in ADAAG or UFAS. For example,
the standard height of 17-19 inches for a water closet (toilet)
specified in ADAAG and UFAS may be too high for an individual who is
of small stature, or the specifications for grab bar heights may be
too high to accommodate the transfer techniques of some individuals.
A district's adherence to ADAAG or UFAS does not relieve it of
its obligation under Title II and Section 504 to make its program
accessible to a particular individual. As discussed earlier, the
program accessibility provisions of Title II and Section 504 require
that no qualified person with a disability be denied access to a
covered entity's facility because it is inaccessible to or _unusable
_by individuals with disabilities. In the situation just described,
while the water closet is accessible, it may be _unusable by
particular individuals. Modifications would be required to make the
water closet usable by these individuals, unless those modifications
would impose an undue burden on the district.
Questions are frequently asked concerning the actions that a
school district should take if neither ADAAG nor UFAS contain
specific standards for a particular type of facility. In such cases,
the technical requirements of the chosen standard should be applied
to the extent possible. If no standard exists for particular
features, those features need not comply with a particular design
standard. However, the facility must still be designed and operated
to meet other Title II and Section 504 requirements, including
program accessibility.
Example: What accessibility requirements apply in this instance?
A school district is designing and constructing a playground.
Because there are no ADAAG or UFAS standards for playground
equipment, the equipment need not comply with any specific design
standard. The Title II and Section 504 requirements for equal
opportunity and program accessibility, however, may obligate the
school district to provide an accessible route to the playground,
some accessible equipment, and an accessible surface for the
playground.
Curb Ramps
Unlike Section 504, the Title II regulation requires that newly
constructed or altered streets, roads, and highways contain curb
ramps or other sloped areas at any intersection having curbs or other
barriers to entry from a street-level pedestrian walkway [28 C.F.R.
35.151(e)(1)]. In addition, newly constructed or altered street-level
pedestrian walkways must contain curb ramps or other sloped areas at
intersections to streets, roads, or highways [28 C.F.R.
35.151(e)(2)]. These provisions will likely affect few school
districts.
* Print Page 174
Alterations to Historic Properties
Title II also provides that alterations to historic properties
must comply, to the maximum extent feasible, with the special access
provisions for historic properties established by section 4.1.7 of
UFAS or section 4.1.7 of ADAAG [28 C.F.R. 35.151(d)(1)]. Under
those provisions, alterations should be done in full compliance with
the alterations standards for other types of buildings. However, if
following the usual standards would threaten or destroy the historic
significance of a feature of the building, alternative standards may
be used.
The decision to use alternative standards for a particular
feature must be made in consultation with the appropriate historic
advisory board designated in ADAAG or UFAS, and interested persons
should be invited to participate in the decision-making process. In
rare situations, complying with even these minimal alternative
requirements will threaten or destroy the historic significance of a
feature of the building or facility. In such a case, the public
entity need not make the structural changes required by ADAAG or
UFAS, but alternative nonstructural methods of achieving access must
be provided (i.e., using audiovisual materials and devices to depict
portions of a historic property that cannot otherwise be made
accessible) [28 C.F.R. 35.151(d)(2)].
MAINTENANCE OF ACCESSIBLE FEATURES
Under the Title II regulation, public school systems must
maintain in working condition those features of facilities and
equipment that are required to be readily accessible to and usable by
persons with disabilities under the ADA [28 C.F.R. 35.133(a)].
Inoperable elevators, locked accessible doors, or "accessible" routes
that are obstructed by furniture, filing cabinets, or potted plants
are neither "accessible to" nor "usable by" individuals with
disabilities [28 C.F.R. 35.133 (Preamble)]. The Section 504
regulation does not contain a comparable provision concerning the
maintenance of accessible features.
28 C.F.R. 35.133 Maintenance of accessible features. (a) A
Public accommodation shall maintain in operable working condition
those features of facilities and equipment that are required to be
readily accessible to and usable by persons with disabilities by the
Act or this part.
It should be noted that the Title II requirement regarding the
maintenance of accessible features does not prohibit temporary
obstructions or isolated instances of mechanical failure [28 C.F.R.
35.133(b) (Preamble)]. Isolated or temporary interruptions in service
or access due to maintenance or repairs are also not prohibited [28
C.F.R. 35.133(b)]. However, allowing obstructions or "out of
service" equipment to persist beyond a reasonable period of time
would violate this requirement, as would repeated mechanical failures
due to improper or inadequate maintenance [28 C.F.R. 35.133
(Preamble)].
* Print Page 175
Example: Is this school district complying with its obligation to
maintain accessible features?
A school district installs a lift in order to provide access for
persons with mobility impairments to an auditorium stage. The lift is
currently not in service, but it is being repaired. The lift has been
out of service for a few hours.
Since the lift normally is functional and reasonable measures
are being taken to repair it, the district is in compliance with its
obligation to maintain accessible features. However, if district
officials allow the lift to remain in disrepair for an unreasonably
long period of time, then the district may be in violation of the
maintenance of accessible features requirement.
* Print Page 176
IMPLEMENTATION
Conducting the Program and Facility Access Review
This section provides suggestions for the following activities:
-- Prepare to conduct the review
-- Conduct the facility access review
-- Analyze program access options
-- Develop the transition plan
IMPLEMENTATION
Title II prohibits public entities from excluding people with
disabilities from programs, services, or activities because of
inaccessible facilities. In order to ensure program accessibility,
it is recommended that each school system conduct a program and
facility access review. The findings of this review will form the
basis for completing the transition plan and identifying
nonstructural and structural changes needed to ensure program
accessibility.
The recommended approach to conducting the program and facility
access review begins with careful planning, including the designation
and training of the subcommittee that will coordinate the program and
facility access review. A review of programs is conducted to
evaluate the scheduling and space requirements of each program. Next,
all existing facilities in which the school system operates programs
are surveyed to identify the physical obstacles or barriers to the
participation of people with disabilities. Findings from the program
review are used in conjunction with the assessment of facilities to
identify barriers to program participation.
The subcommittee then identifies nonstructural and structural
solutions for the removal of barriers and determines the best
solution to program access barriers in each situation. Nonstructural
solutions must be implemented immediately. Physical access problems
that require structural solutions are documented in the transition
plan.
An overview of this process is depicted on the flowchart on the
following [print] page.
The regulations do not required the specific approach to the
program accessibility self-evaluation that is described in this
Guide. Your school system's particular approach will depend on such
factors as the size of the district (i.e., the number of programs and
facilities operated by the district), available sources of expertise
concerning architectural accessibility, staff resources, and
available time and funding. However, the strategy suggested here is
a proven, practical approach to carrying out the steps necessary for
most public school systems to achieve compliance.
Each of these steps is discussed below. Worksheets designed to
be utilized as part of the self-evaluation process are also
discussed.
Prepare to Conduct the Review
The following planning steps (presented on [print] page 178)
will help school districts prepare to conduct a program accessibility
self-evaluation and develop a transition plan:
* Print Page 177
Conducting the Program and Facility Access Review
PREPARATION
Select coordinator and subcommittee
Orient and/or train subcommittee members
Ensure participation of persons with disabilities
Conduct review of programs
Identify spaces to be surveyed
Choose a survey instrument
Establish self-evaluation schedule
Recruit and train facility access review team
FACILITIES REVIEW
Identify barriers in existing buildings
ANALYSIS
Identify nonstructural and structural solutions
Project long-term and short-term costs
Document fundamental alteration/undue burden decisions
PLANNING
Prepare a draft transition plan
Solicit comments
Adopt and implement the final plan
* Print Page 178
-- Select a coordinator and a subcommittee to review program
and facility access.
-- Orient and/or train subcommittee members.
-- Ensure participation of persons with disabilities.
-- Conduct the review of programs.
-- Identify the spaces to be surveyed for the facility access
review.
-- Choose a self-evaluation survey instrument for the
facility access review.
-- Establish a schedule for the self-evaluation.
-- Train the facility access review team.
Each of these steps will now be discussed in more detail.
1. __Select a coordinator and a subcommittee to review program
and facility _access. The starting point for the program
accessibility self-evaluation is to appoint an appropriate individual
to coordinate the effort and to select a subcommittee responsible for
overseeing the program and facility access review. The subcommittee
should include staff with significant expertise to contribute to the
review process. Persons commonly included on the subcommittee include
regular and special education senior staff, senior staff with capital
planning responsibilities, facilities managers, maintenance
supervisors, members of local organizations of individuals with
disabilities, architectural access professionals, and individuals
responsible for planning and scheduling events. The school district
also may want to establish separate teams to conduct the program
review and the facility access review, respectively. In addition, the
school district may want to establish subteams of these two separate
teams at program sites.
Worksheet 6-1 may be used to compile a list of individuals who
are serving on the subcommittee overseeing your school district's
program and facility access review. The names and titles of
individuals should be provided. Information may also be provided
regarding the unit they are representing and the particular skills
they are contributing to the program and facility access review.
2. __Orient and/or train individuals coordinating and
conducting the _review. All persons coordinating and conducting the
review should be fully informed about the Title II and Section 504
requirements concerning program accessibility. If at all possible,
they should attend training on program accessibility. At a mini-
* Print Page 179
mum, they should receive a detailed briefing from the ADA coordinator
or another equally informed person.
3. __Ensure the participation of persons with _disabilities.
This participation can occur in a variety of ways. An initial meeting
or series of meetings to identify concerns related to program
accessibility can spur thinking regarding the review process.
Individuals with disabilities can often identify key issues that may
not be readily apparent to staff members who do not have
disabilities. Persons with disabilities can also serve as members of
the program accessibility subcommittee. The perspectives of persons
with disabilities on the impact and relative importance of the
barriers to program accessibility will be essential. Often, they can
propose solutions that others might not identify.
Persons with disabilities who are familiar with the school
district's programs should also review and comment on drafts of the
transition plan. Their recommendations on priority-setting, the
selection of nonstructural and structural options, and the timing of
modifications will be invaluable as the plan is implemented. The
transition plan should document the ways in which persons with
disabilities, or representatives of organizations comprised of
persons with disabilities, participated at each phase of the program
and facility access review process.
4. __Conduct the review of _programs. Since the goal of the
review process is to ensure access to all programs rather than to all
facilities, it is essential to gather information on programs as well
as facilities. In order to plan such nonstructural approaches to
program accessibility as the reassignment or relocation of programs,
the program accessibility subcommittee will need to know the
following information:
a. __The current building and location within the building of
each _program. Facility access information will not be useful without
an understanding of how physical features affect program access.
b. _Program _scheduling _requirements. Patterns of usage are
of great importance in developing accessibility solutions. For
example, a program that uses an accessible facility on a limited
basis may be able to share the use of the space with another program.
Such a solution may be more cost-effective than making structural
alterations to a second facility.
c. _Program _space _requirements. How much space does each
existing program actually need and what kind of space is required?
Information about the space requirements of programs is critical as
options for providing program accessibility are considered.
* Print Page 180
Worksheet 6-2 may be used to record information about the
scheduling and space requirements of programs and the current
locations of programs.
5. __Identify the spaces to be _surveyed. Facilities that should
be included in the facility access review must be identified. The
facility access survey is most efficiently conducted by looking at
all facilities and their uses simultaneously. A coordinated facility
access review and program review can more efficiently result in
program accessibility by providing the information to enable problem
solving across program lines.
All facilities that contain programs operated by or for your
school system must be reviewed. This includes buildings owned or
leased by your district, as well as parks, outdoor areas, walkways
and any other facilities used in the operation of programs.
Worksheet 6-3 may be used to compile information, by building,
about the requirements of programs and the current locations of
programs in order to select the best self-evaluation survey
instrument and plan for the facility access review. A space is
included where the subcommittee can note the specific person or team
responsible for conducting the on-site survey of a particular
structure. Any planned capital improvements to buildings should also
be noted on Worksheet 6-3.
6. __Choose a self-evaluation survey _instrument. A number of
self-evaluation survey instruments are available. The Facility
Checklist (Worksheet 6-4), which is based on the Americans with
Disabilities Act Accessibility Guidelines for Buildings and
Facilities (ADAAG), is a modular tool that has been created for use
by Title II entities. The ADAAG Checklist (also based on the
Americans with Disabilities Act Accessibility Guidelines for
Buildings and Facilities) is a more detailed survey tool available
from the Architectural and Transportation Barriers Compliance Board.
For further information, contact the ATBCB. (See _Resources.) Any
facility access survey instrument that is chosen should not only
evaluate access for people with mobility-related disabilities but
should also identify structural barriers for people with visual and
hearing disabilities.
Obviously, a school system with significant resources and
expertise will be able to conduct a more detailed and comprehensive
facility review than one with fewer resources. Entities with more
limited resources can use a comparatively "low-tech" approach -
handwritten survey forms instead of computerized data bases and more
limited staff involvement--and still accomplish the same objectives.
Whichever approach is chosen, the facility access review should be
managed by the program accessibility subcommittee.
* Print Page 181
7. __Establish a schedule for the _self-evaluation. Establish a
reasonable schedule for the completion of work and ensure that team
members conduct assessments on a timely basis by monitoring their
progress.
8. __Train the facility access review _team. The facility
access review team should be familiar with the basic program
accessibility requirements of Title II and Section 504, as well as
with the survey and data collection instruments they will be using.
Usually such training is conducted in-house, but outside training may
be available and useful.
Conduct the Facility Access Review
The facility assess review team should have the following items
available when undertaking site reviews:
-- a copy of the site plan showing where public programs are
located;
-- collated forms for each building;
-- measurement guides;
-- clipboards;
-- pens or pencils (writing must photocopy clearly);
-- measuring tape;
-- a regular or digital level for measuring the degree of the
slope on ramps and other slope surfaces (a hand level is especially
useful for long exterior slopes);
-- chalk for marking distances on surfaces;
-- a fisherman's scale or other device to measure the
pressure required to open doors;
-- a watch;
-- a camera; and
-- graph paper.
The facility access review team will identify barriers in each
building surveyed. The facility access review team may also note
solutions to barriers based on their review of buildings.
Although the Facility Checklist that is presented in Worksheet
6-4 is based on ADAAG, it is not designed for a comprehensive
* Print Page 182
evaluation of compliance with ADAAG's complete scoping and technical
requirements. Rather, the survey questions that appear on the
Checklist are designed to ensure that functional access is provided
for persons with disabilities to most facilities. Also, some items on
the Checklist require users to refer to ADAAG for particular
specifications. Users of the Checklist should therefore be aware that
they should check the ADAAG requirements themselves, independent of
their use of the Checklist.
Although the appropriate standard for existing facilities is
program accessibility rather than full compliance with facility
standards such as ADAAG, the ADAAG standards do provide useful
guidance for identifying architectural barriers. However, it is
important to note that the ADAAG standards do not establish the
minimum requirements for providing program access, and failure to
comply with the ADAAG standards does not necessarily indicate a
violation of Title II or Section 504 and does not necessarily require
any corrective action. Rather, for existing facilities under Title II
and Section 504, the real question is whether the covered entity's
programs and activities, when viewed in their entirety, are readily
accessible to and usable by individuals with disabilities.
It is important to note that the specifications in ADAAG,
including those presented in the Facility Checklist, are based upon
adult dimensions and anthropometrics. However, the Title II and
Section 504 requirements both provide that departures from particular
requirements of architectural accessibility standards for new
construction and alterations by the use of other methods are
permitted when it is clearly evident that equivalent access to the
facility or part of the facility is thereby provided [28 C.F.R.
35.151(c) and 34 C.F.R. 104.23(c)]. Consistent with the concept of
"equivalent facilitation," modifications may be made to the adult
dimensions of particular requirements of ADAAG in order to better
serve small children (e.g., the height of chairs, the height of tops
of tables and work surfaces, the height of toilet seats, the height
of drinking fountains, and the height of the top of handrail gripping
surfaces).
Worksheet 6-4, Facility Checklist, is a modular survey tool that
can be used to identify architectural barriers, as well as
communication barriers, that are structural in nature and limit
program access. As noted above, other survey instruments may also be
used, such as the more exhaustive ADAAG Checklist.
Worksheet 6-5, Summary of Program Barriers, is used to document
physical access barriers of programs. In order to be able to more
efficiently analyze solutions to program accessibility barriers,
information from Worksheet 6-2 regarding the special requirements of
programs can also be documented on Worksheet 6-5.
* Print Page 183
Worksheet 6-6, Summary of Inaccessible Features, is used to
summarize information about barriers identified in the survey of each
facility and to analyze their impact on the accessibility and
usability of the facility. Worksheet 6-6 utilizes the following scale
in analyzing the impact of barriers to program accessibility: (1)
safety hazard; (2) major barrier; (3) moderate barrier; and (4)
negligible impact. It is easier to identify safety hazards, such as
an object protruding into the path of travel, or major barriers, such
as the lack of an accessible entrance, than it is to decide what
level of impact a barrier has. Because people with disabilities bring
a user perspective which is essential to this analysis, it is
strongly suggested that individuals with disabilities participate in
scoring items on the four-point scale and in developing brief
descriptions of the functional impact of barriers.
Analyze Program Access Options
After the facility access review has been conducted and barriers
have been identified at each program site, the program accessibility
subcommittee is ready to assess findings. The subcommittee ensures
that information is summarized to facilitate analysis. Summaries
indicate where substantial physical barriers intersect with program
operations to create barriers to access and use.
Next, subcommittee members identify potential structural and
nonstructural solutions for program barriers, evaluating proposed
solutions in terms of their relative cost and effectiveness in
providing access. This requires a team effort, especially when
programs are conducted in multiple facilities. All key persons should
be involved as solutions are sought in order to avoid implementation
barriers later.
Steps that must be accomplished include:
-- identifying nonstructural and structural solutions,
-- projecting long-term and short-term costs, and
-- documenting fundamental alteration/undue burden decisions
1. __Identify nonstructural and structural _solutions. Where
the program review and facility access review identify programs and
facilities as inaccessible, the school system must take steps to make
the programs accessible. Bear in mind that Congress did not intend
that public entities expend large sums of money to retrofit buildings
and facilities where other effective means of achieving equal
opportunity to participate are available. If they
* Print Page 184
can create program accessibility, nonstructural methods are equally
acceptable and should be considered before structural changes. The
Department of Justice and the Department of Education encourage
innovation and creativity in eliminating barriers--as long as the
means used provide people with disabilities equal opportunity to
participate in and benefit from the school district's programs.
For each program or service identified as inaccessible, the
program accessibility subcommittee should brainstorm and create a
list of the possible access solutions to afford program access. The
solutions may include:
-- reassigning programs, activities and services within the
facility,
-- reassigning programs, activities and services to another
facility,
-- redesigning or relocating equipment,
-- providing or assigning human aides,
-- altering facilities,
-- constructing new facilities, or
-- other options.
The subcommittee should develop a list of criteria to help
them compare and choose among options. Some of the criteria that are
important to consider include:
-- _Integration. Integration is a fundamental principle of
Title II and Section 504. Priority should be given to methods
supporting the integration of people with disabilities into programs
and activities that provide interaction with people who do not have
disabilities.
-- _Preferences. As discussed throughout this Guide,
listening to and incorporating the ideas and concerns of people with
disabilities is very important to creating successful programmatic
and structural access solutions.
-- _Capital _planning _information. As the subcommittee
develops recommended solutions, it should seek to obtain information
regarding planned alterations, the planned closing of a facility, or
other plans for each facility. Information regarding available land,
planned new construction, and vacant or under-utilized facilities is
also helpful in developing accessibility options.
* Print Page 185
2. __Project long-term and short-term _costs. As desired options
are analyzed, the subcommittee should consider both the short- and
long-term costs of each option as well as the sources of funds. The
school district may have funds available for operations but not for
capital improvements or vice versa. Existing capital or alteration
plans should be considered in estimating costs. Making structural
changes may be less difficult than anticipated when considered in the
context of capital or alteration plans that are already scheduled or
in process. Some structural solutions may be small in scale and able
to be accomplished through operations budgets.
3. __Document fundamental alteration/undue burden _decisions.
If there are any situations in which barriers were not removed by
January 26, 1995 (the final date for completion of modifications
included in the transition plan)--or will not ever be removed because
to do so would constitute a fundamental alteration in the nature of
the program, service, or activity, or impose undue financial or
administrative burdens--justification must be documented. The
fundamental alteration/undue burden determination must be made by the
head of the public entity or his or her designee [28 C.F.R.
35.150(a)(3)].
This Guide presents three worksheets that school districts may
want to use in order to analyze and select nonstructural and
structural solutions to ensure program accessibility. Also, one of
the worksheets may be used to document fundamental alteration/undue
burden determinations.
Worksheet 6-7, a transition planning worksheet, may be used to
determine whether physical accessibility barriers should be removed
through nonstructural or structural modifications. Information
collected on previous worksheets should assist the program
accessibility subcommittee in analyzing the potential effectiveness
of nonstructural barrier removal options in achieving program
accessibility.
Worksheet 6-8 may be used to provide a summary of nonstructural
modifications. It also includes a schedule for making nonstructural
changes. Under Title II, nonstructural changes were to be made by
January 26, 1992.
Worksheet 6-9A may be used to document architectural
modifications and their costs. It also includes a schedule for
making architectural modifications.
If applicable, Worksheet 6-9B may be used to list the locations
of curb cuts and curb ramps needed to provide access to the sidewalks
and pedestrian walks controlled by the school district. A single unit
cost can be estimated
* Print Page 186
unless there are unusual site conditions requiring extensive ramping.
An estimated completion date for each curb ramp and curb cut should
also be entered. It is useful to attach a map of the streets and
walkways to Worksheet 6-9B. Worksheet 6-9B can then list numbers
corresponding to numbered locations on the map.
Worksheet 6-9C may be used to document structural modifications
that cannot be implemented in a timely manner for reasons of
"fundamental alteration" or "undue burden." For structural
modifications that could not be implemented by January 26, 1995,
documentation should be provided regarding the reason for the delay
and the anticipated completion date. For program accessibility
barriers that will not be removed, documentation should be provided
regarding the budgetary constraints or other factors that support the
fundamental alteration/undue burden claim. Steps to be taken in lieu
of barrier removal should be described.
Develop the Transition Plan
Worksheet 6-9 provides the basis for the development of the
transition plan. The development of the transition plan should occur
in a three-step sequence:
-- Prepare a draft transition plan.
-- Solicit comments on the draft transition plan.
-- Adopt and implement the final transition plan.
1. __Prepare a draft transition _plan. A draft transition plan
should be prepared that contains all of the components required by
Title II. These components were discussed earlier in the chapter.
The draft should be circulated for review and comment to individuals
from a broad range of perspectives.
An important component of the transition plan is the timetable
for structural modifications. To ensure that modifications are made
in a timely manner consistent with the requirements of Title II, the
school district's periodic capital planning and budgeting process
must go hand-in-hand with the development of the final transition
plan. Barrier removal projects can often be planned to coincide with
other scheduled capital improvements. The involvement of facilities
management staff as the transition plan is finalized is essential for
cost-effective implementation and ongoing capital planning. School
districts must also ensure that new construction and alterations
proceed in accordance with Title II and Section 504 requirements.
Incorporating access into
* Print Page 187
planned rehabilitation and new construction is far more
cost-effective than retrofitting inaccessible buildings.
2. __Solicit comments on the draft transition _plan. Interested
persons, including individuals with disabilities or organizations
representing individuals with disabilities, must be given an
opportunity to comment on the proposed plan. Though not required by
Title II, a public meeting is an effective way of providing people
with disabilities, organizations representing individuals with
disabilities, and other interested parties an opportunity to comment
on and discuss the transition plan. An actively involved advisory
group comprised of individuals with disabilities is another way to
get participation in the development of the transition plan.
3. __Adopt and implement final _plan. To complete the transition
plan, revise the draft as necessary in response to comments, attach a
copy of Worksheets 6-7 and 6-9 and any other supporting documentation
as appendices, secure approval as necessary within the school
district, and have the official responsible for implementation sign
the final transition plan. The approved plan should be put into
effect immediately. Be sure to clarify who is responsible for
monitoring the plan as it is implemented and ensuring that deadlines
are met.
* Print Page 188
Worksheet 6-1
PROGRAM ACCESSIBILITY SUBCOMMITTEE
SCHOOL DISTRICT: ----
NAME (ADA COORDINATOR): ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Use this worksheet to identify individuals who are serving on
the subcommittee overseeing your school district's program and
facility access review. In the first column, write the name of the
individual; in the second column, write the title of the individual.
In the third column, information may be provided regarding the unit
individuals are representing, if appropriate, and particular skills
individuals are contributing to the program and facility access
review.
Members of the Program Accessibility Subcommittee
In this empty table, columns follow each other in this order:
Name: Title; Unit Represented/Skills.
* Print Page 189
Worksheet 6-2
PROGRAM INVENTORY
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Record information on all programs offered by the school
district. Identify all special scheduling and space requirements
under "Description."
In this empty table, columns follow each other in this order:
Program: Description (Include special scheduling and space
requirements); Building; Location (in building).
* Print Page 190
Worksheet 6-3
FACILITIES INVENTORY
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
For each building, identify any currently planned capital
improvements and identify all programs currently located within the
building. Give the name of the surveyor currently assigned to that
building.
In this empty table, columns follow each other in this order:
Building: Planned Capital Improvements; Programs; Program
Location(s); Surveyor.
* Print Page 191
Worksheet 6-4
FACILITY CHECKLIST
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Parking
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions/Comments; ADAAG.
Is there an adequate number of accessible parking spaces
available?: * --; --; 4.1.2(5)(a), 4.6.1.
* For guidance in determining the appropriate number of
accessible space to provide, the table below gives the ADAAG
requirements for new construction and alterations (for lots with more
than 100 space, refer to ADAAG 4.1.2(5)(a)) [columns follow each
other in this order: Total spaces: Accessible.]:
1 to 25: 1 space.
26 to 50: 2 spaces.
51 to 75: 3 spaces.
76 to 100: 4 spaces.
Are accessible parking spaces at least 8 feet wide, with a
5-foot access aisle (two spaces can share an access aisle)?: --; --;
4.6.3, 4.1.2(5)(a).
Is one in every 8 spaces, but at least one, van-accessible with
a 96-inch wide access aisle, and 98 inches of vertical clearance?:
--; --; 4.1.2(5)(b), 4.6.5.
Are the access aisle part of the accessible route to an
accessible entrance?: --; --; 4.6.3, 4.3.
Are the accessible spaces the ones closest to an accessible
entrance?: --; --; 4.6.2.
Is the slope of the accessible parking area and access aisle no
more than 1:50?: --; --; 4.6.3.
Are accessible spaces marked with a vertical sign showing the
international symbol of accessibility? In addition, are there signs
reading "Van Accessible" at van spaces?: --; --; 4.6.4, 4.30.7.
* Print Page 192
Passenger Loading Zones
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions/Comments; ADAAG.
Is there an access aisle 60 inches wide by 20 feet long adjacent
and parallel to the vehicle pull-up space?: --; --; 4.1.2(5)(c),
4.6.6.
Is the slope of the access aisle and the pull-up space no more
than 1:50?: --; --; 4.6.6.
If there is a curb between the access aisle and the vehicle
pull-up space, is there a curb ramp?: --; --; 4.6.6, 4.7.
If a walkway crosses or adjoins the driveway and there is no
curb, does the walkway edge have a detectable warning surface?: --;
--; 4.29.5.
Is there at least 114 inches of vertical clearance provided to
the accessible passenger loading zones and along at least one vehicle
access route to it?: --; --; 4.6.5.
Is there a sign displaying the international symbol of
accessibility at the accessible loading zone? --; --; 4.1.2(7)(b).
* Print Page 193
Exterior Route of Travel
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions/Comments; ADAAG.
Is there at least one accessible route of travel from public
transportation stops, accessible parking spaces, accessible passenger
loading zones, public streets, and sidewalks to the accessible
entrance?: --; --; 4.1.2(1), 4.3.2(1).
Is there at least one accessible route that connects accessible
buildings, facilities, elements, and spaces that are on the same
site?: --; --; 4.1.2(2), 4.3.2(2).
Is the accessible route(s) stable, firm and slip-resistant? --;
--; 4.3.6, 4.5.1.
Is the accessible route at least 36 inches wide?: --; --; 4.3.3.
If the accessible route(s) is less than 60 inches wide, are
there passing spaces at least 60 inches by 60 inches, or
T-intersections of corridors, located at reasonable intervals but not
more than 200 feet apart?: --; --; 4.3.4, Fig. 3.
Is there at least 80 inches of clear head room on every route?
If an area adjoining an accessible route has less than 80 inches of
clear head room, is a barrier to warn persons with visual impairments
provided?: --; --; 4.3.5, 4.4.2, Fig. 8.
Are all obstacles along routes of travel cane-detectable
(located within 27 inches of the ground or higher than 80 inches, or
protruding no more than 4 inches into the route of travel)?: --; --;
4.4.1, Fig. 8.
If gratings are located in walking surfaces, are the openings of
the grating no greater than 1/2 inch wide in one direction? Are the
long dimensions of rectangular openings placed perpendicular to the
dominant direction of travel?: --; --; 4.5.4.
Is the cross-slope of the accessible route(s) no greater than
1:50?: --; --; 4.3.7.
Is the running slope of the accessible route no greater than
1:20, or is there an accessible ramp if the slope is greater than
1:20 (use ramp survey)?: --; --; 4.3.7.
Are walkway level changes no more than 1/4 inch, or if they are
between 1/4 inch and 1/2 inch, are they beveled with a slope no
greater than 1:2?: --; --; 4.3.8, 4.5.2.
Are there curb cuts, ramps, platform lifts, or elevators where
there is a change in level greater than 1/2 inch?: --; --; 4.3.8,
4.5.2.
Is there a curb cut wherever an accessible route crosses a
curb?: --; --; 4.7.1.
* Print Page 194
Is the slope of the curb ramp no greater than 1:12? If there is
not enough space to use a 1:12 slope or less, is the slope of the
curb ramp no greater than 1:10 for a maximum rise of 6 inches, or 1:8
for a maximum rise of 3 inches?: --; --; 4.7.2, 4.1.6(3)(a).
Are maximum slopes of adjoining gutters, immediately adjacent
road surface, or accessible route no greater than 1:20? Is the
transition from the curb ramp to adjoining surfaces flush and free of
abrupt changes?: --; --; 4.72.
If a curb ramp is located where pedestrians must walk across the
ramp, or where it is not protected by handrails or guardrails, does
it have flared sides with a maximum slope 1:10?: --; --; 4.7.5.
Is the width of the curb ramp, not including the flared sides,
no less than 36 inches?: --; --; 4.7.3.
Is the surface of the curb ramp stable, firm and
slip-resistant?: --; --; 4.5.1, 4.7.4.
* Print Page 195
Ramps
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions/Comments; ADAAG.
Are the slopes of ramps no greater than 1:12?: --; --; 4.8.2.
Is the rise of each ramp run (vertical distance between
landings) no greater than 30 inches?: --; --; 4.8.2.
Is the cross slope no greater than 1:50?: --; --; 4.8.6.
Do all ramps longer than 6 feet or with more than 6 inches rise,
have railings on both sides?: --; --; 4.8.5.
Are railings continuous, sturdy, and between 34 and 38 inches
high?: --; --; 4.8.5.
Is the width between railings and curbs at least 36 inches?: --;
--; 4.8.3.
Are ramps stable, firm, and slip-resistant?: --; --; 4.8.6,
4.5.1.
Is there a 5-foot-long level landing at every 30-foot horizontal
length of ramp, at the top and bottom of every ramp and where the
ramp changes direction?: --; --; 4.8.4.
Do ramps and landings with drop-offs have walls, railings,
projecting surfaces, or curbs at least two inches high to prevent
people from slipping off the ramp?: --; --; 4.8.7.
* Print Page 196
Stairs
(Note: Stars are not permitted as part of an accessible route.)
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions/Comments; ADAAG.
Do stairs have closed risers?: --; --; 4.9.2.
Are stair treads no less than 11 inches?: --; --; 4.9.2.
Do stairs have continuous handrails on both sides, with
extensions beyond the top and bottom stairs?: --; --; 4.9.4.
Do nosings project no more than 1-1/2 inches?: --; --; 4.9.3.
* Print Page 197
Lifts
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions/Comments; ADAAG.
If platform lifts are used, can a person using a wheelchair
enter, operate, and exit the lift without assistance?: --; --;
4.11.3.
Is the lift's platform at least 30 by 48 inches?: --; --;
4.11.2, 4.2.4.
Is there at least 30 by 48 inches of clear space for a person
using a wheelchair to approach to reach the controls and use the
lift?: --; --; 4.11.2, 4.2.4.
If there is a door on the lift, is the door accessible?: --; --;
4.13.
Are controls between 15 and 48 inches high (up to 54 inches if a
side approach is possible)?: --; --; 4.11.2, 4.2.5, 4.2.6.
Are the controls operable with one hand, and without tight
grasping, pinching, or twisting of the wrist?: --; --; 4.11.2,
4.27.4.
* Print Page 198
Entrances
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions/Comments; ADAAG.
Are at least 50% of all public entrances accessible? Is at
least one accessible entrance a ground floor entrance?: --; --;
4.1.3(8)(a)(1).
Do all inaccessible entrances have signs indicating the location
of the nearest accessible entrance?: --; --; 4.1.3(8)(d), 4.30.
If not all entrances are accessible, are the accessible
entrances identified by the international symbol of accessibility?:
--; --; 4.1.2(7)(c), 4.30.
Does at least one door at each accessible entrance have at least
32 inches clear opening (for a double door, at least one 32-inch
leaf)?: --; --; 4.1.3(7)(a), 4.13.4, 4.13.5.
Are appropriate maneuvering clearances provided at accessible
doors?: --; --; 4.13.6, Fig. 25.
Is the threshold level (less than 1/4 inch high) or beveled with
a slope no greater than 1:2 up to 1/2 inch high (3/4" maximum for
exterior sliding doors)?: --; --; 4.13.8.
Are door handles at accessible entrances no higher than 48
inches and operable with one hand and without tight grasping,
pinching or twisting of the wrist?: --; --; 4.13.9.
If there is a revolving door or turnstile at an entrance, is
there an accessible door or gate next to it?: --; --; 4.13.2.
On sliding doors, is the operating hardware exposed and usable
from both sides when the doors are fully open?: --; --; 4.13.9.
Can accessible doors be opened without too much force (maximum
of 5 lbf for interior doors)?: --; --; 4.13.11.
If the accessible doors have closers, do they take at least 3
seconds to close to a point 3 inches from the latch?: --; --;
4.13.10.
* Print Page 199
Lobbies and Corridors
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions/Comments; ADAAG.
Does the accessible entrance connect with all accessible
elements and spaces in the building?: --; --; 4.1.3(1), 4.3.2(3).
Is the accessible route to all public spaces at least 36 inches
wide? If the accessible route turns around an obstruction less than
48 inches wide, is the route at least 42 inches wide on the approach
to and exit from the turn at least 48 inches wide at the base of the
turn?: --; --; 4.3.3, Fig. 7.
Is the cross-slope of the accessible route no steeper than
1:50?: --; --; 4.3.7.
If the accessible route is less than 5 feet wide, are there
passing spaces 5 feet by 5 feet or T-intersecting corridors located
at reasonable intervals no more than 200 feet apart?: --; --; 4.3.4,
Fig. 3.
Is there at least 80 inches of clear head room on every route?
If an area adjoining an accessible route has less than 80 inches of
clear head room, is a barrier to warn persons with visual impairments
provided?: --; --; 4.3.5, 4.4.2, Fig. 8.
Are floors on an accessible route stable, firm, and
slip-resistant?: --; --; 4.5.1.
Is the slope no more than 1:20, or is there a ramp when the
slope is greater than 1:20?: --; --; 4.3.7.
If objects mounted to the wall have leading edges between 27 and
80 inches from the floor, do they project no more than 4 inches into
the route of travel?: --; --; 4.4.1.
Are walkway level changes less than 1/4 inch, or, if they are
between 1/4 inch and 1/2 inch, are they beveled with a slope no
greater than 1:2?: --; --; 4.3.8, 4.5.2.
Are ramps provided for changes in level greater than 1/2 inch?:
--; --; 4.5.2.
Does at least one door into each public space have at least a
32-inch clear opening?: --; --; 4.1.3(7)(b), 4.13.5.
Are appropriate maneuvering clearances provided at accessible
doors?: --; --; 4.13.6, Fig. 25.
Can doors be opened without too much force (5 lbf maximum for
interior doors)?: --; --; 4.13.11.
* Print Page 200
Are door handles 48 inches high or less and operable without
tight grasping, pinching, or twisting of the wrist?: --; --; 4.13.9.
Are all thresholds level (less than 1/4 inch), or beveled with a
slope no greater than 1:2, up to 1/2 inch high? --; --; 4.13.8.
Do signs which provide direction to, or information about,
functional spaces of the building, comply with the appropriate
requirements for directional signage?: --; --; 4.1.3(16)(b), 4.30.
Do signs designating rooms and spaces, such as rest rooms, signs
at exit doors, and room numbers, comply with the appropriate
requirements for tactile signage? Do all signs meet legibility
requirements regarding contrast and character proportion?: --; --;
4.1.3(16)(a), 4.30.
Do alarms have both visible and audible signals?: --; --;
4.1.3(14), 4.28.
* Print Page 201
Elevators
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions/Comments;
Reviewer.
Does the elevator have automatic operation and self-leveling
features?: --; --; 4.10.2.
Are there both visible and verbal or audible door
opening/closing and floor indicators (one tone = up, two tones =
down)?: --; --; 4.10.4.
Are the call buttons in the hallway at least 3/4 inches wide and
centered at 42 inches?: --; --; 4.10.3.
Do hall call buttons have visual signals to indicate when each
call is registered and answered?: --; --; 4.10.3.
Is there a sign on the jamb at each floor identifying the floor
in raised and Braille letters?: --; --; 4.10.5, 4.30.4.
Is the door opening at least 36 inches wide?: --; --; 4.10.9.
For a centered opening, is the minimum inside dimension of
elevator cars 51 inches by 80 inches?: --; --; 4.10.9.
For an off-center opening, is the minimum inside dimension of
elevator cars 51 inches by 68 inches?: --; --; 4.10.9.
Are car control buttons no higher than 48 inches for forward
reach and 54 inches for side reach?: --; --; 4.10.12(3).
Do the controls inside the cab have raised and Braille
lettering?: --; --; 4.10.12(2), 4.30.4.
Are the emergency controls grouped at the bottom of the control
panel and centered no less than 35 inches above the floor?: --; --;
4.10.12(3).
If an emergency intercom is provided, is it usable without voice
communication?: --; --; 4.10.14.
Is the emergency intercom identified in Braille and raised
letters and a raised symbol?: --; --; 4.10.14, 4.30.4.
If the communication system is in a closed compartment, is the
hardware on the compartment operable without tight grasping,
pinching, or twisting of the wrist?: --; --; 4.10.14.
* Print Page 202
Rooms and Spaces
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions/Comments; ADAAG.
Are all aisle and pathways to materials and services at least 36
inches wide?: --; --; 4.3.3. If aisles between fixed furniture are
less than 5 feet wide, are there passing spaces 5 feet by 5 feet or
intersecting aisles at reasonable intervals not exceeding 200 feet
maximum?: --; --; 4.3.4.
Are floors stable, firm, and slip-resistant?: --; --; 4.5.1. Is
carpeting low-pile, tightly woven, and securely attached?: --; --;
4.5.3.
In routes through public areas, are all obstacles
cane-detectable (located within 27 inches of the floor or higher than
80 inches, or protruding no more than 4 inches from the wall)?: --;
--; 4.4.1, Fig. 8.
Is there at least 80 inches of clear head room on every route?
If an area adjoining an accessible route has less than 80 inches of
clear head room, is a barrier to warn persons with visual impairments
provided?: --; --; 4.3.5, 4.4.2, Fig. 8.
Does at least one door into each public space have at least a
32-inch clear opening?: --; --; 4.13.5, 4.1.3(7)(b).
Are appropriate maneuvering clearances provided at accessible
doors?: --; --; 4.13.6, Fig. 25.
Can doors be opened without too much force (5 lbf maximum for
interior doors)?: --; --; 4.13.11.
Are door handles 48 inches high or less and operable without
tight grasping, pinching or twisting of the wrist?: --; --; 4.13.9.
Are all thresholds level (less than 1/4 inch), or beveled, with
a slope no greater than 1:2 up to 1/2 inch high?: --; --; 4.13.8.
If there are sliding doors, is the operating hardware exposed
and usable from both sides when the doors are fully open?: --; --;
4.13.9.
Do signs designating permanent rooms and spaces, such as rest
room signs, signs at exit doors, and room numbers, comply with the
appropriate requirements for signage? Do all signs meet legibility
requirements regarding contrast and character proportion?: --; --;
4.1.3(16)(a), 4.30.
* Print Page 203
Do signs which provide direction to, or information about,
functional spaces of the building comply with the appropriate
requirements for directional signage?: --; --; 4.1.3(16)(b), 4.30.
Are all controls that are available for use by the public
(including electrical, mechanical, cabinet, game, and self-service
controls) located between 15 and 48 inches for forward reach and
between 9 and 54 inches for side reach?: --; --; 4.2.5, 4.2.6.
Are they operable without tight grasping, pinching, or twisting
of the wrist?: --; --; 4.27.4.
If fixed or built-in seating or tables are provided in
accessible public or common use areas, do at least 5%, but not less
than one, of the fixed or built-in seating areas or tables provide 30
inches by 48 inches of clear floor space?: --; --; 4.1.3(18), 4.32.2.
Are the aisles between fixed seating at least 36 inches wide?:
--; --; 4.3.3.
Are the tops of at least 5% of fixed tables or counters between
28 and 34 inches high?: --; --; 4.32.4.
Are knee spaces at accessible fixed tables at least 27 inches
high, 30 inches wide, and 19 inches deep?: --; --; 4.32.3.
Are at least 50% of drinking fountains, but at least one, on
each floor accessible?: --; --; 4.1.3(10), 4.15.
Do the accessible wall- and post-mounted cantilevered units have
clear knee space 27 inches high, 30 inches wide and 17 to 19 inches
deep? Do these units have a minimum clear floor space 30 inches by 48
inches to allow a person who uses a wheelchair to approach the unit
facing forward?: --; --; 4.15.5(1).
Do the accessible free-standing or built-in drinking fountains
not having a clear space under them have clear floor space of at
least 30 by 48 inches in front to allow a parallel approach to the
unit?: --; --; 4.15.5(2).
Do the accessible drinking fountains have spouts no higher than
36 inches?: --; --; 4.15.2.
Are controls on accessible drinking fountains mounted on the
front or on the side near the front edge, and operable without tight
grasping, pinching, or twisting of the wrist?: --; --; 4.15.4,
4.27.4.
If pay or public-use phones are provided, is there clear floor
space of at least 30 by 48 inches in front of at least one in each
bank, that allows a parallel or perpendicular approach by a person
using a wheelchair?: --; --; 4.13(17)(a), 4.31.2.
Are the operable parts of the accessible phone(s) 15 to 48
inches high (9 to 54 inches if a side approach is possible)?: --; --;
4.31.3, 4.2.5, 4.2.6.
* Print Page 204
Do the accessible phones have push-button controls?: --; --;
4.31.6.
Are the accessible phones hearing-aid compatible? : --; --;
4.31.5(1)
Are the accessible phones adapted with volume control? In
addition, do 25%, but not less than one, of all other public phones
have volume control?: --; --; 4.1.3(17)(b), 4.31.5(2).
Are the accessible phones and all the phones with volume control
identified with appropriate signage?: --; --; 4.1.3(17)(b), 4.30.
If there are four or more public phones in the building, is one
of the phones equipped with a text telephone (TT or TDD)?: --; --;
4.1.3(17)(c).
Is the location of the text telephone identified by accessible
signage bearing the international TDD symbol?: --; --; 4.30.7(3).
When a bank of telephones consists of three or more public pay
phones, is at least one public pay phone equipped with a shelf and
outlet?: --; --; 4.1.3(17), 4.31.9(2).
Do all banks of telephones that do not contain a text telephone
have appropriate directional signage placed adjacent to them
indicating the location of the text telephone? If the facility has no
banks of telephones, is there appropriate directional signage
provided at the entrance?: --; --; 4.30.7(3).
Do alarms have both visible and audible signals?: --; --;
4.1.3(14), 4.28.
* Print Page 205
Toilet Rooms
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions/Comments; ADAAG.
If rest rooms are available to the public, is at least one rest
room on each floor that has public rest rooms (either one for each
sex, or unisex) on an accessible route and fully accessible?: --; --;
4.1.2(6), 4.1.3(11), 4.1.6(3)(e), 4.22, Fig. 30.
Are there signs at inaccessible rest rooms that give directions
to accessible ones?: --; --; 4.1.6(3)(e)(iii), 4.30.
When not all toilet facilities are accessible, are accessible
toilet rooms identified by the international symbol of
accessibility?: --; --; 4.1.2(7)(d).
Do doors have at least a 32-inch clear opening?: --; --; 4.22.2.
Are appropriate maneuvering clearances provided at doors?: --;
--; 4.13.6, Fig. 25.
Can doors be opened without too much force (5 lbf maximum for
interior doors)?: --; --; 4.13.11.
Are door handles 48 inches high or less and operable without
tight grasping, pinching, or twisting of the wrist?: --; --; 4.13.9.
Are all thresholds level (less than 1/4 inch), or beveled, with
a slope no greater than 1:2 up to 1/2 inch high?: --; --; 4.13.8.
If there are sliding doors, is the operating hardware exposed
and usable from both sides when the doors are fully open?: --; --;
4.13.9.
Is there tactile signage identifying the rest rooms, placed on
the wall at the latch side of the door, centered 60 inches above the
floor?: --; --; 4.1.3(16)(a), 4.30.
Is there a 5-foot diameter clear space or a T-shaped space in
the rest room to make turns?: --; --; 4.22.3.
Are all fixtures on an accessible route?: --; --; 4.22.7, 4.27.
* Print Page 206
Is there at least one wheelchair-accessible stall that is at
least 5 feet wide, clear of the door swing, and at least 56 inches
long if the toilet is wall-mounted or 59 inches long if the toilet is
floor-mounted? If it is technically infeasible to provide such a
standard stall, is there a stall that is either 36 by 66 inches or 48
by 66 inches if the toilet is wall-mounted or either 36 by 69 inches
if the toilet is floor-mounted?: --; --; 4.17.3, 4.22, Fig. 30.
Can the door to the accessible toilet stall be operated without
twisting or fine movement, on both the inside and outside?: --; --;
4.17.5, 4.13.9.
Do the accessible toilet stalls have a minimum door opening of
at least 32 inches?: --; --; 4.17.5, 4.13.5.
Are there accessible grab bars in accessible toilet stalls?: --;
--; 4.17.6, 4.26, Fig. 30.
Are there accessible grab bars at accessible water closets not
located in stalls?: --; --; 4.16.4, 4.26, Fig. 29.
Are the accessible toilet seats 17 to 19 inches high?: --; --;
4.16.3.
Are the flush controls on accessible toilets no higher than
inches and mounted on the wide side of toilet areas?: --; --; 4.16.5.
Is the toilet paper dispenser at least 19 inches above the
floor?: --; --; 4.16.6.
Does one lavatory have a 30-inch-wide by 48-inch-deep clear
space in front, with a maximum of 19 inches of that depth under the
lavatory?: --; --; 4.19.3.
Is the lavatory rim no higher than 34 inches from the floor?:
--; --; 4.19.2.
Is there at least 29 inches from the floor to the bottom of the
lavatory apron?: --; --; 4.19.2.
Is there at least 8 inches of clearance toward the wall provided
for knee clearance?: --; --; 4.19.2, Fig. 31.
Is there a maximum of 6 inches of clearance outward from the
wall provided for toe clearance?: --; --; 4.19.2, Fig. 31.
Can the faucet be operated with one hand and without tight
grasping, pinching, or twisting of the wrist?: --; --; 4.19.5.
Are hot water pipes and drain pipes insulated, or configured to
avoid contact with the legs of a person using a wheelchair?: --; --;
4.19.4.
* Print Page 207
Are soap and other dispensers and hand dryers no higher than 48
inches for forward reach or 54 inches for side reach?: --; --;
4.27.3.
Can they be operated with one hand and without twisting or fine
movement?: --; --; 4.27.4.
Is there a clear floor space of 30 by 48 inches in front of the
dispensers?: --; --; 4.27.2.
Is the mirror mounted with the bottom edge of the reflecting
surface no higher than 40 inches?: --; --; 4.19.6.
If alarms are provided in the rest room, do they have both
visual and audible signals?: --; --; 4.1.3(14), 4.28.
* Print Page 208
Shower Rooms
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions/Comments; ADAAG.
Are shower rooms on an accessible route and fully accessible?:
--; --; 4.1.3(11), 4.23.1.
When not all shower rooms are accessible, are accessible shower
rooms identified by the international symbol of
accessibility?: --; --; 4.1.2(7)(d).
Do doors have at least a 32-inch clear opening?: --; --; 4.23.2,
4.13.5.
Are appropriate maneuvering clearances provided at doors?: --;
--; 4.23.2, 4.13.6, Fig. 25.
Can doors be opened without too much force (5 lbf maximum for
interior doors)?: --; --; 4.23.2, 4.13.11.
Are door handles 48 inches high or less and operable with one
hand and without tight grasping, pinching, or twisting of the wrist?:
--; --; 4.23.2, 4.13.9.
Are all thresholds level (less than 1/4 inch), or beveled, with
a slope no greater than 1:2 up to 1/2 inch high?: --; --; 4.23.2,
4.13.8.
If there are sliding doors, is the operating hardware exposed
and usable from both sides when the doors are fully open?: --; --;
4.23.2, 4.13.9.
Is there tactile signage identifying the shower rooms, placed on
the wall at the latch side of the door, centered 60 inches above the
floor?: --; --; 4.1.3(16)(a), 4.30.
Is there a 5-foot diameter clear space or a T-shaped space in
the rest room to make turns?: --; --; 4.23.3.
If a standard shower stall is provided, is it at least 36 inches
by 36 inches?: --; --; 4.21.2, Fig. 35.
If a roll-in shower stall is provided, is it at least 30 inches
by 60 inches?: --; --; 4.21.2, Fig. 35.
Is appropriate clear floor space provided at shower stalls?: --;
--; 4.21.2, Fig. 35.
Is a seat provided in shower stalls 36 inches by 36 inches? Is
it mounted between 17 and 19 inches above the shower floor on the
wall opposite the controls and does it extend the full depth of the
stall?: --; --; 4.21.3, 4.26.3.
* Print Page 209
Where a fixed seat is provided in a 30 by 60 inch minimum shower
stall, is it a folding type and is it mounted on the wall adjacent
to the controls?: --; --; 4.21.3, 4.26.
Are accessible grab bars provided in accessible shower stalls?:
--; --; 4.21.4, Fig. 37.
Are accessible faucets and other controls that are operable with
one hand and without tight grasping, pinching, or twisting of the
wrist provided in accessible shower stalls?: --; --; 4.21.5, 4.27.4,
Fig. 37.
If provided, are curbs in shower stalls 36 inches by 36 inches
no higher than 1/2 inch?: --; --; 4.21.7.
If a 30 by 60 inch shower stall is provided, does it have no
curb?: --; --; 4.21.7.
* Print Page 210
Assembly Areas
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions/Comments; ADAAG.
Does at least one door into each public space have at least a
32-inch clear opening?: --; --; 4.1.3(7)(b), 4.13.5.
Are appropriate maneuvering clearances provided at accessible
doors?: --; --; 4.13.6, Fig. 25.
Can doors be opened without too much force (5 lbf maximum for
interior doors)?: --; --; 4.13.11.
Are door handles 48 inches high or less and operable without
tight grasping, pinching, or twisting of the wrist?: --; --; 4.13.9.
Are all thresholds level (less than 1/4 inch), or beveled, with
a slope no greater than 1:2 up to 1/2 inch high?: --; --; 4.13.8.
If there are sliding doors, is the operating hardware exposed
and usable from both sides when the doors are fully open?: --; --;
4.13.9.
In assembly areas with fixed seating, is the required number of
wheelchair locations provided (see table at 4.1.3(19)(a) of
ADAAG)?: --; --; 4.1.3(19)(a).
Is each wheelchair space at least 48 inches deep for approach
from the front or rear, and 60 inches deep for approach from the
side?: --; --; 4.33.2.
Do wheelchair spaces adjoin an accessible route that also serves
as an accessible means of egress?: --; --; 4.33.3.
Is at least one companion fixed seat provided next to each
wheelchair seating area?: --; --; 4.33.3.
Does an accessible route connect wheelchair seating locations
with performing areas, including stages, arena floors, dressing
rooms, locker rooms, and other spaces used by performers?: --; --;
4.33.5.
In assembly areas where audible communications are integral to
the use of the space, are an adequate number of assistive listening
systems provided?: --; --; 4.1.3(19)(b).
Is there signage indicating the availability of the assistive
listening devices?: --; --; 4.1.3(19)(b).
* Print Page 211
Cafeterias
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions/Comments;
ADAAG).
Does at least one door into each public space have at least a
32-inch clear opening?: --; --; 4.1.3(7)(b), 4.13.5.
Are appropriate maneuvering clearances provided at accessible
doors?: --; --; 4.13.6, Fig. 25.
Can doors be opened without too much force (5 lbf maximum for
interior doors)?: --; --; 4.13.11.
Are door handles 48 inches high or less and operable without
tight grasping, pinching, or twisting of the wrist?: --; --; 4.13.9.
Are all thresholds level (less than 1/4 inch), or beveled, with
a slope no greater than 1:2 up to 1/2 inch high?: --; --; 4.13.8.
If there are sliding doors, is the operating hardware exposed
and usable from both sides when the doors are fully open?: --; --;
4.13.9.
Are at least 5%, but a minimum of one, of the fixed tables
accessible?: --; --; 4.1.3(18), 5.1.
Is the knee space at accessible tables at least 27 inches high,
30 inches wide, and 19 inches deep?: --; --; 4.32.3.
Is the top of each accessible table or counter between 28 and 34
inches above the floor?: --; --; 4.32.4.
Where possible, are the accessible tables or counters
distributed throughout the space?: --; --; 5.1.
Are all aisles between accessible fixed tables at least 36
inches wide?: --; --; 5.3.
Where counter service is provided, is there at least a 60 inch
long portion of the main counter that is no more than 34 inches high
and that has at least 27 inches of knee space below or is service
available at accessible tables within the same area?: --; --; 5.2.
Do food service lines have at least 36 inches clear width?: --;
--; 5.5.
* Print Page 212
Are tray slides no more than 34 inches above the floor?: --; --;
5.5.
Are at least 50% of self-service food service shelves 15 to 48
inches for perpendicular approach and 9 to 54 inches for
parallel approach?: --; --; 5.5.
Are self-service shelves and dispensing devices for tableware,
dishware, condiments, food. and beverages installed 15 to 48 inches
for forward approach or 9 to 54 inches for parallel approach?: --;
--; 5.6, 4.2.
Do self-service shelves and vending machines have at least a 30-
by 48-inch clear floor space?: --; --; 5.6, 5.8, 4.2.
Are vending machines on an accessible route?: --; --; 5.8,
4.2.4.
* Print Page 213
Libraries
General Area/Building: ---- Date: ---- Reviewer: ----
In this table, columns follow each other in this order:
Questions: In Compliance? (Y, N, NA); Dimensions; Comments;
ADAAG.
Does at least one door into each public space have at least a
32-inch clear opening?: --; --; 4.1.3(7)(b), 4.13.5.
Are appropriate maneuvering clearances provided at accessible
doors?: --; --; 4.13.6, Fig. 25.
Can doors be opened without too much force (5 lbf maximum for
interior doors)?: --; --; 4.13.11.
Are door handles 48 inches high or less and operable without
tight grasping, pinching, or twisting of the wrist?: --; --; 4.13.9.
Are all thresholds level (less than 114 inch), or beveled, with
a slope no greater than 1:2 up to 1/2 inch high?: --; --; 4.13.8.
If there are sliding doors, is the operating hardware exposed
and usable from both sides when the doors are fully open?: --; --;
4.13.9.
If there is a turnstile or security device, is there an
accessible door or gate adjacent to it?: --; --; 8.3, 4.13.
Is at least one lane for each check-out area accessible?: --;
--; 8.3.
Are at least 5% (but a minimum of one) of fixed seating, tables
or study carrels accessible?: --; --; 8.2.
Is there a clear floor space of 30 by 48 inches for wheelchair
spaces at accessible tables?: --; --; 8.2, 4.2.
Are the tops of the accessible fixed tables between 28 and 34
inches above the floor?: --; --; 8.2, 4.32.4.
Is there knee space under the accessible, fixed tables at least
27 inches high, 30 inches wide and 19 inches deep?: --; --; .2,
4.32.3.
Are the aisles leading up to and between accessible tables and
carrels at least 36 inches wide?: --; --; 8.2, 4.2.3.
Is the clear aisle space at card catalogs and magazine displays
at least 36 inches wide?: --; --; 8.4.
* Print Page 214
Is the minimum clear aisle width between stacks at least 36
inches?: --; --; 8.5.
Are card catalogs between 18 and 54 inches high?: --; --; 8.4.
* Print Page 215
Worksheet 6-5
SUMMARY OF PROGRAM BARRIERS
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
PROGRAM NAME: ----
NOTES: ----
After reviewing all survey forms, use Worksheet 6-5 to document
physical access barriers to programs that were identified in
Worksheet 6-4. In order to be able to efficiently analyze solutions
to program accessibility barriers, information from Worksheet 6-2
regarding the locations and special requirements of programs may also
be documented on this worksheet.
In this table, columns follow each other in this order: Program
Locations: Description of Program Barriers; Survey Page No.
(Worksheet 6-4); Special Requirements of Program.
List all buildings where the program is offered. Refer to
Worksheet 6-2.; --; --; Refer to Worksheet 6-2.
* Print Page 216
Worksheet 6-6
SUMMARY OF INACCESSIBLE FEATURES
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
BUILDING NAME AND LOCATION: ----
NOTES: ----
For each facility use this worksheet to summarize information on
barriers identified in the survey and to analyze their impact on the
accessibility and usability of the facility. Use the scale provided
below to record the impact of barriers to program accessibility.
CODE:
1 = safety hazard
2 = major barrier
3 = moderate barrier
4 = negligible impact
In this table, columns follow each other in this order: Survey
Elements: Description of Barriers; Actual Dimensions (if applicable);
ADAAG or UFAS Requirements; Impact on Program Accessibility (use code
below); Notes.
Accessible Entrance into Facility:
Accessible route: --; --; --; --; --.
Ramps: --; --; --; --; --.
Parking and drop-off areas: --; --; --; --; --.
Entrance: --; --; --; --; --.
Emergency egress: --; --; --; --; --.
Signage: --; --; --; --; --.
Other: --; --; --; --; --.
* Print Page 217
Access to Programs:
Accessible route: --; --; --; --; --.
Doors: --; --; --; --; --.
Rooms and spaces: --; --; --; --; --.
Controls: --; --; --; --; --.
Seats, tables, and counters: --; --; --; --; --.
Ramps: --; --; --; --; --.
Stairs: --; --; --; --; --.
Elevators: --; --; --; --; --.
Lifts: --; --; --; --; --.
Signage: --; --; --; --; --.
Other: --; --; --; --; --.
* Print Page 218
Access to Rest Rooms:
Getting to the rest rooms: --; --; --; --; --.
Doorways and passages: --; --; --; --; --.
Stalls: --; --; --; --; --.
Lavatories: --; --; --; --; --.
Signage: --; --; --; --; --.
Other: --; --; --; --; --.
Other Elements:
Libraries: --; --; --; --; --.
Food services: --; --; --; --; --.
Assembly areas; --; --; --; --; --.
Shower facilities: --; --; --; --; --.
Drinking fountains: --; --; --; --; --.
Telephones: --; --; --; --; --.
Alarms: --; --; --; --; --.
Other: --; --; --; --; --.
* Print Page 219
Worksheet 6-7
TRANSITION PLANNING WORKSHEET
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
PROGRAM NAME: ----
NOTES: ----
Use this worksheet to determine whether physical accessibility
barriers should be removed through nonstructural or structural
modifications. Information collected on previous worksheets should
be of assistance in analyzing whether barrier can be removed by
nonstructural means.
Program Location(s) ----
Significant Barriers ----
* Print Page 220
Access Options ----
Recommendations and Rationale ----
* Print Page 221
Worksheet 6-8
SUMMARY OF NONSTRUCTURAL MODIFICATIONS
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
PROGRAM NAME: ----
NOTES: ----
Use this worksheet to provide a summary of nonstructural
modifications to achieve program accessibility. Also, indicate the
schedule for making the nonstructural modifications.
In this empty table, columns follow each other in this order:
Buildings: Description of Nonstructural Changes; Page Number
(Worksheet 6-7); Implementation Schedule.
* Print Page 222
Worksheet 6-9a
SUMMARY OF ARCHITECTURAL MODIFICATIONS
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Use this worksheet to provide a summary of architectural
modifications to achieve program accessibility. Also, indicate the
schedule for making the architectural modifications.
In this empty table, columns follow each other in this order:
Building: Description of Structural Changes; Cost Estimate; Page
Number (Worksheet 6-7); Implementation Schedule.
* Print Page 223
Worksheet 6-9b
CURB CUTS AND CURB RAMPS
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
TOTAL NUMBER OF CURB CUTS/RAMPS: ----
NOTES: ----
Use this worksheet to provide information regarding the
locations and cost of curb cuts and curb ramps needed to provide
access to the sidewalks and pedestrian walks controlled by the school
district. Also, indicate an estimated completion date for each curb
cut and curb camp.
In this empty table, columns follow each other in this order:
Location of curb cuts and curb ramps (or map code number): Cost
Estimate [including total for this table]; IMPLEMENTATION SCHEDULE,
1992, 1993, 1994, 1995.
* Print Page 224
Worksheet 6-9c
DOCUMENTATION OF FUNDAMENTAL ALTERATIONS/UNDUE BURDENS
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
TOTAL NUMBER OF FACILITIES: ----
NOTES: ----
Use this worksheet to document structural modifications that
cannot be implemented in a timely manner.
A) Modifications to be completed after January 26, 1995 (use
additional sheets if needed)
In this empty table, columns follow each other in this order:
Facility: Description of Structural Changes; Cost estimate; Reason
for delay and anticipated completion date.
B) Modifications not to be implemented (use additional sheets if
needed)
In this empty table, columns follow each other in this order:
Facility: Description of Structural Changes; Cost estimate;
Explanation of fundamental alterations/undue burdens and steps to be
taken in lieu of barrier removal.
* Print Page 225
** CHAPTER SEVEN REQUIREMENTS FOR EFFECTIVE COMMUNICATION
Individuals with disabilities must have access to communication
that is as effective as communication provided to individuals without
disabilities, in order to have an equal opportunity to participate in
programs, services, and activities. This chapter reviews
requirements for effective communication under the Title II
regulation.
The chapter begins with an overview of the requirement to
provide effective communication. The chapter then presents a
discussion of Title II requirements regarding the provision of
auxiliary aids and services. Examples of technologies and devices
that can provide alternatives to print, oral, and aural communication
are offered. The chapter continues with a discussion of other
significant Title II requirements concerning
communications--interpreter services, telecommunication devices for
the deaf, emergency telephone services, and information and signage.
The chapter concludes with an examination of the fundamental
alteration/undue burden exception and a brief description of
structural communication features. Differences between the
requirements of Title II and Section 504 with respect to
communication are discussed throughout the chapter.
At the end of the chapter, a practical guide to conducting the
self-evaluation of policies, procedures, and resources with respect
to communication is presented. Worksheets are provided that can be
used to conduct an initial self-evaluation, to conduct periodic
reviews to identify areas in which modifications may be needed to
remain in compliance, or to prepare an action plan to provide
auxiliary aids and services.
AN OVERVIEW OF COMMUNICATION REQUIREMENTS
Under the Title II regulation, public elementary and secondary
schools are required to ensure that students, parents, employees,
employment applicants, and members of the general public with
disabilities are able to experience communication that is as
effective as that provided to people without disabilities [28 C.F.R.
35.160(a)]. People with visual, hearing, and speech disabilities
must all have the opportunity to receive and present communication in
a manner that is appropriate and effective [28 C.F.R. 35.160(a)].
Communication support must be provided in a manner that enables
people with disabilities to participate on an equal basis with all
others, unless to do so would result in a fundamental alteration in
the nature of a service, program, or
* Print Page 226
activity or in an "undue" financial or administrative burden [28
C.F.R. 35.164]. Such exceptions rarely apply. It is important to
note that the fundamental alteration/undue burden exception does not
apply to the provision of related aids and services that are
necessary to ensure a free appropriate public education to qualified
students with disabilities. (See discussion on [print] pages 236 and
239.)
28 C.F.R. 35.160 General. (a) A public entity shall take
appropriate steps to ensure that communications with applicants,
participants, and members of the public with disabilities are as
effective as communications with others.
The self-evaluation must include a complete assessment of
policies, procedures, and resources that will ensure that people with
disabilities are not unlawfully excluded, segregated, or restricted
in any way as the result of communication barriers.
Unlike the Title II regulation, the Section 504 regulation for
federally assisted programs does not contain a separate Subpart for
communications. However, the Section 504 regulation does contain a
number of nondiscrimination requirements that result in an obligation
to provide effective communication.
PROVIDING AUXILIARY AIDS AND SERVICES
In order to provide equal access to public services, school
systems are required by Title II to make appropriate auxiliary aids
and services available whenever they are necessary to ensure
effective communication [28 C.F.R. 35.160(b)(1)]. Upon the request
of a qualified person with a disability, public school systems must
provide access to communication through appropriate auxiliary aids
and services. Auxiliary aids and services include a wide range of
services, equipment, and devices that provide effective communication
to people with visual, hearing, or speech disabilities.
28 C.F.R. 35.160(b)(1) A public entity shall furnish
appropriate auxiliary aids and services where necessary to afford an
individual with a disability an equal opportunity to participate in,
and enjoy the benefits of, a service, program, or activity conducted
by a public entity.
Providing a qualified sign language interpreter for an
individual who is deaf is an example of an auxiliary service under
Title II. Other examples of auxiliary aids and services for people
who are _hearing _impaired include notetakers, computer-aided
real-time transcription services (CART), amplified and hearing-aid
compatible telephones, assistive listening systems, open or closed
captioning and caption decoders, text telephones or telecommunication
devices for the deaf (TDDs), and flashing alarms.
Auxiliary aids and services for people with _visual disabilities
include providing access to printed information through audiotape
cassettes, computer diskettes, Braille or large print materials, or
through the use of qualified readers; providing verbal descriptions
of action and visual information to enhance the accessibility of
performances and presentations; and making a staff member available
as a guide to enable a person with limited vision to find his or her
way along an unfamiliar route.
* Print Page 227
In addition to auxiliary aids and services that are available
for use today, many other technologies will undoubtedly emerge in the
future that will also constitute appropriate auxiliary aids and
services.
It is very important to understand that there may be an overlap
between the provision of __auxiliary aids and _services that are
designed to ensure effective communication and __related aids and
_services that are necessary to provide a free appropriate public
education (FAPE) to qualified students with disabilities. As
discussed in Chapter Four, under both Section 504 and Title II, in
order to provide FAPE to qualified students with disabilities, public
elementary and secondary schools that receive federal financial
assistance must provide regular or special education, as well as
related aids and services, designed to meet the individual
educational needs of each qualified student with disabilities [34
C.F.R. 104.33(b)(1) and 28 C.F.R. 35.130(b)]. The concept of
"related aids and services" applies to any supplementary aids,
adjustments, and services, _including those that are
communication-related, that are necessary to ensure FAPE to qualified
students with disabilities. Auxiliary aids and services that are
designed to ensure effective communication and that are necessary to
ensure FAPE are also considered related aids and services. These
related aids and services must be provided in accordance with both
the communications requirements of Section 504 and Title II and the
requirements of Section 504 and Title II regarding the provision of
FAPE.
The determination regarding whether a qualified student with a
disability needs communication-related related aids and services to
ensure FAPE is the responsibility of the placement team and must be
addressed as part of the evaluation and placement procedures of
Section 504 and Title II. The placement team would also determine the
specific appropriate communication-related related aids and services
the student may need to ensure FAPE. If the student's parents or
guardians disagree with the placement team's determination, they have
a right to challenge the decision through due process procedures.
The concept of "related aids and services" under Section 504 and
Title II is broad, extending beyond the context of communication. On
the other hand, "auxiliary aids and services" discussed in this
chapter are limited to the context of communication. Equipment used
to make physical accommodations for students with mobility
impairments, psychological services, and physical and occupational
therapy are examples of "related aids and services" under Section 504
and Title II, but they would not be considered "auxiliary aids and
services" that are designed to ensure effective communication under
Title II. In order to eliminate possible confusion regarding the
provision of related aids and services to ensure FAPE and the Title
II requirement to provide auxiliary * Print Page 228 aids and
services to ensure effective communication, this chapter provides
only a few examples of communication-related related aids and
services that are necessary to ensure FAPE.
As discussed in Chapter Two, questions are frequently raised
regarding whether school districts must provide auxiliary aids and
services for parents or the public for such programs and activities
as graduation ceremonies, parent-teacher organization meetings, plays
and other events open to the public, and adult education classes.
Under Title II, public school systems must provide appropriate
auxiliary aids and services for these programs and activities
whenever necessary to ensure effective communication for parents and
the public, unless providing the auxiliary aids results in an undue
burden or in a fundamental alteration of the program [28 C.F.R.
35.102 (Preamble)]. For example, school districts may have to provide
qualified interpreters on request for members of the public at
graduation ceremonies and for parents at parent-teacher organization
meetings.
GUIDELINES FOR DETERMINING WHICH TYPES OF AUXILIARY AIDS AND SERVICES
TO PROVIDE
The Title II regulation has a requirement, not specifically
contained in Section 504, that public school systems must give
"primary consideration" to the requests of the individual with
disabilities in determining what type of auxiliary aid and service is
necessary [28 C.F.R. 35.160(b)(2)]. This means the school system
must give each person with a disability an opportunity to request the
auxiliary aid or service of his or her choice. Further, under Title
II, school districts must honor this request unless they can
demonstrate that another aid or service will be effective for the
individual requesting the service, that the proposed action would
fundamentally alter the service, program, or activity, or that the
action would result in undue financial and administrative burdens [28
C.F.R. 35.164]. Even where a school district can demonstrate a
fundamental alteration or an undue burden, the district must take
other measures to ensure that it does not discriminate against
individuals with disabilities.
28 C.F.R. 35.160(b)(2) In determining what type of auxiliary
aid and service is necessary, a public entity shall give primary
consideration to the requests of the individual with
disabilities.
Deference to the request of the individual with a disability is
crucial because of the range of disabilities, the variety of
auxiliary aids and services, and the various circumstances requiring
effective communication. It is important to consult with the
individual to determine the most appropriate auxiliary aid or service
because the individual with a disability is most familiar with his or
her disability and is in the best position to determine what type of
aid or service will be effective.
Thoughtful planning is required to handle requests for auxiliary
aids and services expeditiously. Under Title II, factors that may
influence whether a particular auxiliary aid or service provides
effective communication include:
* Print Page 229
-- __The particular needs of the person requesting the
auxiliary aid or _service. As mentioned earlier, when an auxiliary
aid or service is requested, primary consideration should be given to
the aid or service requested by the person with a disability;
otherwise, the particular individual's needs may not be adequately
met in spite of the school system's efforts, and effective
communication may not be achieved.
Example: Has this parent been offered effective communication?
Jan, a parent who is deaf, wishes to attend a meeting of the
Parents and Teachers Association. Jan is a native user of American
Sign Language and knows little English. In advance of the meeting,
Jan requested that the school provide her with an interpreter who is
qualified to interpret into American Sign Language. However, the
school provides an interpreter who is qualified to interpret into
Signed English. The school has not provided Jan with communication
that is equally effective to that provided to persons without
disabilities.
-- __The duration and complexity of the _communication.
Longer, more detailed exchanges often require more powerful and
faster modes of communication [28 C.F.R. 35.160 (Preamble)]. For
example, an exchange of handwritten notes might suffice for a deaf
parent who is picking up a child at school and simply wants
directions to the classroom. But if that parent is participating in a
parent-teacher conference, an interpreter or other effective means of
communication may be needed.
-- __The context of the _communication. Environmental
conditions, such as the difference between a structured office
setting and an outdoor recreational setting, influence the
effectiveness of various devices and techniques [28 C.F.R. 35.160
(Preamble)].
-- __The number of people _involved. Communication techniques
that are effective between two people might not work well in a group
context. For example, a person who has limited hearing may be able to
understand one-to-one conversation in a quiet office setting, but may
not be able to do so in a group setting [28 C.F.R. 35.160
(Preamble)].
-- __Importance and potential _impact. Some
communications--such as those involving legal, financial, health, and
safety issues--are particularly important and must be provided in
ways that guard against errors, omissions, and misunderstandings [28
C.F.R. 35.160 (Preamble)]. For example, if a kindergarten student
has had an accident, and the student's
* Print Page 230
deaf parent is receiving instructions from the school nurse on
follow-up care, it is particularly important that the parent have a
clear understanding of what the nurse is saying.
Public school systems are obligated to respond to requests from
individual members of the public for auxiliary aids and services that
will enable them to benefit from the school's programs. However, in
situations in which the demand for materials in alternative formats
is predictable, school districts will probably want to provide
certain widely distributed information in alternative formats even
without a specific request in order to ensure timely availability of
important material. For example, a school system might want to have
an announcement of summer recreation programs run by the school
system routinely available in large print, cassette, Braille, and
computer disk formats.
Given the short timeline from the awareness of an individual's
need for an auxiliary aid or service to the occurrence of some
programs and activities, requests may occasionally be made that
cannot readily be met in a timely fashion. This Guide recommends that
when school districts inform individuals of upcoming programs,
activities and services, they suggest that individuals with
disabilities provide reasonable advance notice of their need for
auxiliary aids and services. Plans should also be in place for
providing acceptable alternatives to requested auxiliary aids and
services. In many instances, an alternative to the original request
may be appropriate. Clear communication with the person making the
request is essential in finding a suitable accommodation.
Example: What alternatives are available to this request for
materials in an alternative format?
A school district sponsors evening non-credit classes in arts
and crafts for adults. At the beginning of the semester, Jennifer,
who is blind, enrolls in one of the classes and requests that the
school district provide her textbook in Braille. The district does
not have the textbook available in Braille. However, the district
finds the book available on tape through the Recording for the Blind
library. Jennifer accepts the accommodation offered by the district.
TECHNOLOGIES AVAILABLE AS ALTERNATIVES TO VISUAL, AURAL, AND ORAL
COMMUNICATION
There are two major types of communication barriers that prevent
or detract from communication effectiveness:
1. _Visual: Print materials, visual displays, and signage may
present barriers to people with limited vision.
* Print Page 231
2. _Aural/oral: "Aural" refers to information that is heard;
"oral" refers to spoken communication. A person who is
hearing-impaired experiences barriers related to aural communication.
The same person may be able to communicate orally, however. A person
who has a speech impairment, or a cognitive impairment that affects
speech, may experience barriers in communicating orally, but have no
difficulty receiving information that is conveyed aurally. Each
person will require different auxiliary aids and services in order to
be provided equally effective communication.
This section reviews some of the technologies currently
available to provide effective communication and suggests possible
applications for public school systems. However, this description of
technologies is not exhaustive. New technologies are constantly
emerging. The technologies presented here may also be used as
related aids and services that are provided to qualified students
with disabilities as part of their free appropriate public education.
Alternatives to Visual Communication
Materials presented in a visual format can inhibit communication
with persons who are blind or partially sighted. The following are
some of the auxiliary aids and services that may be used to overcome
such barriers.
_Alternative _Formats. It is essential that information be
available in a variety of formats in order to be accessible to users
with a variety of disabilities. For example, school districts should
ensure that persons who are blind or have low vision have access to
materials in Braille, on audiotapes, large print, and other formats.
Braille is a tactile representation of written or printed
language. It consists of characters made up of arrangements of raised
dots. Not all blind persons read Braille, but many prefer it to tapes
because it is easier to scan, easier to refer back to for
information, and easier to reference. Braille is sometimes the only
alternative form of visual information that a deaf-blind person is
able to access since tapes and large print may be inaccessible.
Many people who have limited vision are able to read large
print. Print is measured in "point" size. Standard print is usually
10-12 point. Large print is print that is larger than 16 point,
usually 18 to 22 point. Large print can be produced at low cost using
a photocopier that can enlarge. Many computer programs have the
option of printing enlarged documents or formatting text in various
font sizes.
Making audiotapes of such program material as textbooks and
course listings is often a good alternative to written information.
* Print Page 232
Some people who are blind or visually impaired cannot read, or prefer
not to read, Braille or large print; they find tapes more useful.
Tapes are also sometimes helpful to people with learning disabilities
such as dyslexia. Tapes can be prepared in-house or by a professional
taping service.
_Adaptations _for _Computers. Many individuals who are blind,
including children, are computer literate and use computers every day
as a way of accessing information. Transmitting information by
providing a computer diskette or using e-mail may be good ways to
overcome the barriers created by information presented in a visual
format.
A wide range of computer software and hardware, as well as
various other types of devices, are available to facilitate input and
output by blind or partially sighted computer users. For example,
software is available to control key input acceptance rates and to
allow the cursor to be controlled from the keyboard instead of from
the mouse.
Software is available to provide large print displays on
monitors. Large print software has many applications. Many libraries,
for example, use computerized displays that can be made available to
partially sighted persons through such adaptations.
Screen readers (also called speech synthesizers and voice
output) are available to create "talking computers" that read
computer screens. The process used to achieve voice output on a
computer requires both a screen reader software package and
appropriate hardware (an internal or external voice synthesizer) to
produce speech. This technology has a wide range of applications.
Libraries, for example, can use screen readers to provide automated
catalog data. Earphones can be used by speech synthesizer users in
order to avoid disturbing other individuals in the same area.
Braille printers are another way of communicating screen
content. They are operated like non-Braille printers and produce hard
copy that can be read and kept for reference. Transcription software
is required to convert the word-processed text into symbols the
printer can recognize.
Another form of Braille output is a "refreshable Braille screen"
that can translate text from a computer monitor to a Braille version
presented on an attached piece of equipment. The Braille cells change
as each new line is presented. This approach does not yield hard
copy.
When a person who is blind needs access to print material that
is not available, or readily available, in Braille, it can be scanned
into a computer. "Optical character recognition" technology enables
text to be printed in large print format, articulated by a screen
reader, or provided as hard copy through a Braille printer.
* Print Page 233
With appropriate Braille transcription software, the user can enter
text in standard print, review the text by producing a hard copy in
Braille, and then produce a final version that can be shared with a
sighted individual.
Braille input devices include portable notetaking systems. The
portable notetaking devices have their own local storage (e.g.,
microcassette, floppy disk, random access memory) and their own
built-in text editors. Their input mechanism is a keyboard with six
keys and a space bar which is used to enter Braille. The output
display can be a refreshable 20-cell display that can be connected to
a Braille or standard printer, to both types of printers, or to a
personal computer for file transfers.
_Magnification _Devices. Magnifying lenses--lighted or
unlighted, portable or fixed, hand-held or stand-mounted--are a
useful tool whenever visual materials are used as part of a
presentation attended by partially sighted participants. For example,
if a parent with limited vision attended his or her child's art class
on Parents' Day, and the art instructor passed a photo of a small
sculpture around the classroom for examination, a magnifying lens
would enable the parent to appreciate the demonstration. Also, if the
same parent attended a reading class, the teacher might arrange to
provide a copy of the book with a magnifier so that the parent could
follow the reading.
Alternatives to Aural/Oral Communication
People with various disabilities may be unable to receive or
generate spoken communication. The following are some of the most
widely used devices that can assist with communication.
_Writing. In some situations there are simple alternatives to
spoken communication. Pen and paper may be an easy form of
communication in situations where communication is simple. In a more
complicated situation other methods should be considered.
_Computer-Aided _Real-Time _Reporting (CART). Recently a new
type of translation service, called computer-aided real-time
reporting, or CART, has become available as an option for deaf or
hard of hearing people who read English fluently. This service is
generally used in meeting or conference settings, but the service may
also be provided for students in classes. Real-time reporters,
trained as court stenographers, type out words as they are being
spoken in a meeting or class and the text is simultaneously displayed
on a computer monitor, video monitor, or projection screen. For
assistance in obtaining this service, contact your local court
stenotypist organization, agencies that provide interpreters, or
other organizations serving people who are deaf or hard of hearing.
* Print Page 234
_Assistive _Listening _Devices. Also called assistive listening
systems, these devices can be used to enhance hearing in one-on-one
discussions or in meeting rooms. They can be fixed or portable. FM
systems, for example, use a microphone connected to an FM
signal-sending device that can be attached to the speaker. The
listener wears a portable headset that can be used anywhere in the
room and is able to receive the amplified sound. Multiple listeners
can benefit simultaneously from this type of system. It is important
to note that with respect to new construction, both the Americans
with Disabilities Act Accessibility Guidelines for Buildings and
Facilities and the Uniform Federal Accessibility Standards contain
scoping and technical requirements for assistive listening systems in
assembly areas [ 4.1.3(19)(b) and 4.33, __Americans with
Disabilities Act Accessibility Guidelines for Buildings and
_Facilities (1991) and 4.1.2(18)(b) and 4.33, __Uniform Federal
Accessibility _Standards (1985)].
__Telecommunication Devices for the Deaf (_TDDs). The Title II
regulation requires that where a public school communicates by
telephone with students, parents, employees, employment applicants,
or the general public, TDDs or equally effective telecommunication
systems must be used to communicate with individuals with impaired
hearing or speech. TDDs are surprisingly inexpensive. The Title II
requirements regarding TDDs are discussed in greater detail later in
this chapter.
_Telephone _Amplification. Many hearing aids have a telephone
setting that can amplify sound if an appropriate handset is used. The
telephone company can provide a handset with the appropriate magnetic
field intensity to be compatible with this type of hearing aid
setting. Battery-powered, portable handset amplifiers are also
available. The amplifier can slip over the handset of most
telephones.
With respect to new construction, both the Americans with
Disabilities Act Accessibility Guidelines for Buildings and
Facilities and the Uniform Federal Accessibility Standards contain
scoping and technical requirements for accessible public telephones
equipped with volume controls [ 4.1.3(17)(b) and 4.31.5, __Americans
with Disabilities Act Accessibility Guidelines for Buildings and
_Facilities (1991) and 4.1.2(16)(b) and 4.31.5, __Uniform Federal
Accessibility _Standards (1985)]. With respect to new construction,
the Americans with Disabilities Act Accessibility Guidelines for
Buildings and Facilities also specifically requires hearing-aid
compatible telephones [ 4.31.5(1), __Americans with Disabilities Act
Accessibility Guidelines for Buildings and _Facilities (1991)].
_Adaptations _for _Computers. Since operating a personal
computer is essentially a visual task, users who are deaf
generally do not experience significant difficulties with
computer technol-
* Print Page 235
ogy. However, school systems will want to ensure that important
information conveyed by beeps or speech during computer-related tasks
is also displayed visually for the user unable to benefit from the
auditory information. Computer operating systems often have built-in
options for visually displaying auditory alerts. If necessary, a
flashing light signal should be installed that echoes the beeps.
_Electronic _Speech _Aids. A number of devices are available
that support the exchange of information electronically. Among them
is a small device that accepts and displays typed text. Such a device
could be stored in a library for ready use with customers who are
deaf. Speech synthesizers may also be used to facilitate
communications with persons who have speech impediments.
__Captioning Television and Videotape _Programming. Audio
portions of television and videotape programming produced by public
entities are subject to the requirement to provide equally effective
communication for individuals with hearing impairments. Closed
captioning of such programs is sufficient to meet this requirement
[28 C.F.R. 35.160 (Preamble)]. Public school systems may want
audiovisual materials used for class work, or which are
otherwise intended for public education, to carry captions. Closed
captioning is an ideal format because the captioning is unseen unless
it is needed.
_Decoders. When a "closed captioned" film or video is shown, a
decoder is used to "open" the captions and make them appear on
screen.
INTERPRETER SERVICES
When sign language interpretation is necessary, Title II
requires that it be provided by a "qualified interpreter." Under
Title II, the term "qualified interpreter" is defined as an
individual who is "able to interpret effectively, accurately, and
impartially, both receptively and expressively, using any necessary
specialized vocabulary" [28 C.F.R 35.104]. To satisfy this
requirement, the interpreter must have the proven ability to
effectively communicate the type of information being conveyed.
28 C.F.R. 35.104 Definitions. _Qualified _interpreter means
an interpreter who is able to interpret effectively, accurately, and
impartially both receptively and expressively, using any necessary
specialized vocabulary.
The interpreter qualifications most appropriate in each instance
will vary. Certified interpreters are not required; in some cases,
experienced interpreters familiar with the subject area will do a
better job of capturing the content than a certified interpreter who
lacks subject area expertise.
It is generally not appropriate to use a family member or
companion as an interpreter. The deaf or hard of hearing person has
the right to request an impartial interpreter.
* Print Page 236
One commonly asked question is when an interpreter is required.
Although a notepad and pen for written communication may be
sufficient for simple conversations, an interpreter may be necessary
when the information is complex or the exchange is lengthy. For
example, a public lecture should be interpreted for members of the
audience who are deaf. Factors to consider in determining whether an
interpreter is required include:
1. the context of the event,
2. the number of people involved, and
3. the importance of the material being communicated [28
C.F.R. 35.160 (Preamble)].
Examples: Do these situations require interpreters?
1. School officials notify Andrea, a parent who is deaf,
about a meeting at which a decision will be made regarding whether
her child should be suspended from school. In this situation, the
importance of the material being communicated is such that the school
district must provide Andrea with a qualified interpreter at the
meeting.
2. Roberta, a deaf parent, goes to a school-sponsored bake
sale. The interactions Roberta will have with other parents and
students are informal and short. Therefore, an interpreter would not
be needed and other methods of communication would suffice.
Public school systems are responsible for providing interpreter
services upon request, when they are necessary for effective
communication, unless doing so would cause a fundamental alteration
or undue burden [28 C.F.R. 35.164]. However, it is important to note
that the fundamental alteration/undue burden exception does not apply
to the provision of interpreter services that are necessary to ensure
a free appropriate education for qualified students with
disabilities.
TELEPHONE COMMUNICATIONS
Although the Section 504 regulation does not specifically
address TDDs, Title II specifically requires that where public
entities communicate with the public by telephone, TDDs or equally
effective means must be used to communicate with persons who have
hearing or speech disabilities [28 C.F.R. 35.161]. Sometimes called
text telephones (TTs) or teletypewriters (TTYs), these devices
provide a printout or digital display (or both) that en-
* Print Page 237
ables a person who is deaf or hard of hearing to hold a two-way
conversation through the written word. A telephone that is not
equipped with a TDD device can receive a call from a TDD user only if
a relay system is used to provide a spoken interface.
Title IV of the ADA, which covers telecommunications, requires
all common carriers that provide telephone voice transmission
services (i.e., telephone companies) to have provided
telecommunications relay services throughout the area in which they
provide service by July 26, 1993 [47 U.S.C. 225 (1990)]. Telephone
relay services required by Title IV generally may be used to meet the
requirement of Title II that public entities provide TDDs or equally
effective telecommunication systems.
TDDs or equally effective telecommunication systems, such as
relay services provided by telephone companies, must be provided at
all public school offices and departments that provide for
interaction by telephone with students, parents, employees,
employment applicants, or the public. For example, TDDs or equally
effective telecommunication systems may be required at school
principals' offices, school nurses' offices, and guidance counseling
offices. If a relay service is used, all persons who might use the
service should receive information to help them use it effectively.
Where communication by telephone is a major function of a
particular component within a public school system, TDDs should be
available [28 C.F.R. 35.161 (Preamble)]. Also, if a school does not
presently make any public pay telephones available to students or
parents in its facility, but does allow students without disabilities
to use a telephone in the administration office to communicate with
their parents, the school may be specifically required to provide a
TDD so that students with hearing or speech impairments have a
similar ability to communicate effectively with their parents. Where
TDDs are installed, school districts should ensure that all employees
who would use the TDDs are trained in their proper use.
28 C.F.R. 35.161 Telecommunications Devices for the Deaf
(TDDs). Where a public entity communicates by telephone with
applicants and beneficiaries, TDDs or equally effective
telecommunication systems shall be used to communicate with
individuals with impaired hearing or speech.
It is important to note that, with respect to new construction
and alterations to existing buildings and facilities, the Americans
with Disabilities Act Accessibility Guidelines for Buildings and
Facilities contains scoping and technical requirements for TDDs [
4.1.3(17)(c), 4.1.6(1)(e), and 4.31.9, __Americans with Disabilities
Act Accessibility Guidelines for Buildings and _Facilities (1991)].
The Uniform Federal Accessibility Standards do not contain specific
requirements regarding TDDs.
EMERGENCY TELEPHONE SERVICES
Many public entities provide telephone emergency services by
which individuals can seek immediate assistance from police,
* Print Page 238
fire, ambulance, and other emergency services. These telephone
emergency services--such as "911" services--are clearly an important
public service whose reliability can be a matter of life and death.
28 C.F.R. 35.162 Telephone emergency services. Telephone
emergency services, including 911 services, shall provide direct
access to individuals who use TDDs and computer modems.
Under Title II, but not Section 504, public entities that
operate telephone emergency services must provide direct access to
individuals who use TDDs and computer modems for telephone
communication [28 C.F.R. 35.162]. This provision affects all public
school systems that provide such services. "Direct access" means
that emergency telephone services are able to receive calls from TDDs
and computer modem users _without relying on outside relay services
or third-party services. A public entity may, however, operate its
own relay services within its emergency system, provided that the
services for non-voice calls are as effective as those provided for
voice calls in terms of time response.
INFORMATION AND SIGNAGE
Under Title II, public school systems must ensure that
interested persons, including persons with impaired vision or
hearing, can obtain information about the existence and location of
accessible services, activities, and facilities [28 C.F.R.
35.163(a)]. Signs must also be placed at all inaccessible entrances
to each of the school system's facilities, directing users to an
accessible entrance or to a location where information about
accessible facilities can be obtained [28 C.F.R. 35.163(b)]. The
international symbol for accessibility must also be used at each
accessible entrance of a facility. The international symbol for
accessibility appears below: [not reproduced here].
28 C.F.R. 35.163 Information and signage.
(a) A public entity shall ensure that interested persons,
including persons with impaired vision or hearing, can obtain
information as to the existence and location of accessible services,
activities, and facilities.
(b) A public entity shall provide signage at all inaccessible
entrances to each of its facilities, directing users to an accessible
entrance or to a location at which they can obtain information about
accessible facilities. The international symbol for accessibility
shall be used at each accessible entrance of a facility.
Under the Title II regulation, where TDD-equipped pay phones or
portable TDDs exist, clear signage should be posted indicating the
location of the TDD. Also, the Department of Justice recommends
that, in large buildings that have TDDs, directional signage
indicating the location of available TDDs should be placed adjacent
to banks of telephones that do _not contain a TDD [28 C.F.R. 35.163
(Preamble)].
Section 504 contains a notice provision similar to the Title II
regulation. Recipients of federal financial assistance must adopt and
implement procedures to ensure that interested persons, including
persons with impaired vision or hearing, can obtain information about
the existence and location of services, activities, and facilities
that are accessible to persons with disabilities. However, this
Section 504 provision does not specifically require signage [34
C.F.R. 104.22(f)].
* Print Page 239
FUNDAMENTAL ALTERATIONS OR UNDUE BURDENS
The Title II regulation does not require a public school system
to take any action that would result in a fundamental alteration in
the nature of a service, program, or activity, or in an undue
financial and administrative burden [28 C.F.R. 35.164]. As
discussed in Chapter Four and earlier in this chapter, it is
important to note that the fundamental alteration/undue burden
exception does _not apply to the provision of related aids and
services that are necessary to ensure a free appropriate public
education for qualified students with disabilities.
When a public school system cites a fundamental alteration in a
program or service or an undue burden as a reason for failing to
provide a requested auxiliary aid or service, the Title II regulation
places the burden of proof on the school system. A decision regarding
whether there is a fundamental alteration or an undue burden must be
based on _all of the resources available for use in the funding and
operation of the service, program, or activity [28 C.F.R. 35.164].
As discussed in Chapter Six, the Title II regulation contains
requirements for documenting the claim of fundamental alteration or
undue burden that are not contained in Section 504. Under Title II,
the decision that compliance would result in an undue burden or
fundamental alteration must be made by the head of the public entity
or his or her designee. This person should be a high level
official--no lower than a department head--who has budgetary
authority and who customarily makes spending decisions such as the
one in question. In addition, the decision must be accompanied by a
written statement of the reasons for that decision [28 C.F.R.
35.164].
Claiming that an undue burden or fundamental alteration exists
does not relieve a public entity of its obligations to provide access
for persons with disabilities. Even if an entity is not able to
undertake a particular measure in order to provide equally effective
communication, it must still take other measures, to the maximum
extent possible, to ensure that it does not discriminate against
individuals with disabilities in any of its programs, services, or
activities [28 C.F.R. 35.164].
STRUCTURAL COMMUNICATION FEATURES
Communication features that are structural in nature are those
that are fixed or built into the facility. These are not considered
auxiliary aids; rather, they are part of the review of the facility
for program accessibility and should be included in the transition
plan. Examples of structural communication features include:
* Print Page 240
-- flashing signals to inform people with hearing
disabilities of a fire alarm;
-- tactile signage with raised letters to enable people with
visual disabilities to use an elevator panel or identify rest rooms,
specific room locations, and exits;
-- sound amplification devices such as public address systems
and amplified receivers to increase the audible information that
people with limited hearing are able to perceive; and
-- FM broadcast systems to transmit amplified sound to people
with limited hearing or descriptive information to people with
limited vision.
See Chapter Six for a discussion of requirements related to the
development of transition plans.
* Print Page 241
IMPLEMENTATION
Conducting the Review of Communications
This section provides suggestions for the following activities:
-- Prepare to conduct the review
-- Review communications access
-- Develop communication strategies
IMPLEMENTATION
The ADA requires that public entities provide communications for
persons who have disabilities that are as effective as those
available to persons who do not have disabilities. To ensure that
this requirement is met, school districts should review both their
written policies and the actual communications practices of all
programs, activities, and services. The level and quality of
communication accessibility required by Title II is higher than that
which most public entities have previously provided. As a result,
your school district's self-evaluation may well result in the
development of new policies and procedures and require significant
additional resources.
The recommended approach for reviewing communications policies
and procedures throughout your school district begins with the
appointment of a coordinator for the communications review and the
designation of an appropriate subcommittee. The review should, of
course, be conducted based on appropriate organizational units
determined by the subcommittee (most probably those used for other
self-evaluation components, but not necessarily). Often, the
communications review is combined with the review of policies and
practices to ensure conformity with nondiscrimination requirements
(Chapter Four) and program accessibility requirements (Chapter Six).
Next, review communications throughout the school district to
determine areas in which alternative forms of communication are
currently unavailable but are required. Finally, information obtained
from the communications self-evaluation should be summarized and
reviewed carefully by the subcommittee to identify current procedures
that should be modified, to determine purchases and procurements that
should be made or planned to facilitate communication, and to note
appropriate sources from which to obtain auxiliary aids and services.
Prepare to Conduct the Review
The review of _written _policy may be conducted either centrally
by the ADA compliance team or by the communication subcommittee. A
review of district-wide _communications _practices is also required.
This review may be conducted by the ADA compliance team, by a
communication subcommittee, by individuals selected for their
expertise regarding communications (including consultants), by
trained program staff, or by other methods. However, it is the
recommendation of this Guide that program staff be actively involved
in the review of both policies and practices for the following three
reasons:
* Print Page 242
1. Involving program staff in the early stages of review is
often the best way to enlist their understanding and support for
implementing change later in the process.
2. The review may identify programs that have communication
resources and expertise in place that will be useful to other
programs or to the entity as a whole.
3. The process can be used to evaluate the communication
functions of each program and to assess the quantity and type of
additional communications resources needed.
A two- or three-tier review is recommended. At a minimum, there
should be a review at each program level followed by a district-wide
review. However, most school districts will undertake an intermediate
level of review and summation prior to the district-wide review.
Worksheet 7-1 may be used to document the names and titles of
designated representatives of the communication subcommittee
responsible for planning and coordinating the communications
self-evaluation and for assessing the implications of the
self-evaluation findings at the district level.
Review Communication Access
A methodical review of communications support provided in all
programs, services, or activities is important even when it is
already suspected that policies and practices are not in compliance
with Title II requirements. First, through conducting the review,
subcommittee members will identify program areas where auxiliary aids
and services may be needed in order to provide effective
communication. Also, the review process will result in information
about the need throughout the school district for various types and
amounts of auxiliary aids and services. The school district will then
be able to utilize this information to make district-wide policy
decisions and make necessary purchases and procedural arrangements to
obtain auxiliary aids and services from providers.
The communications review should cover the following areas:
__Communication in all programs, services, and _activities. The
self-evaluation should review:
-- printed information that may limit the participation of
people with visual disabilities;
-- aural communication (information that is heard) that may
limit the participation of people who are deaf or hard of hearing;
* Print Page 243
-- oral information (information that is spoken) that may
limit the participation of people with speech disabilities.
_Telecommunications. The review must determine the current level
of compliance with the following key requirements of the ADA:
-- If staff members communicate over the telephone with the
public, applicants, or program participants, a TDD or equally
effective telecommunication system must be provided.
-- If the entity provides emergency telephone services,
direct access to a TDD must be provided.
_Signage _and _information. The review must determine compliance
with key requirements concerning signage and other means of providing
information about accessible communication features. These
requirements include the following:
-- Accessible entrances must be identified. Signs directing
the public to accessible entrances should be provided at all
inaccessible facility entrances.
-- Information regarding the existence and location of
accessible services, activities, and facilities must be provided.
Worksheet 7-2, Communication Access Assessment, is designed
to assess and document the current ability of programs to provide
equally effective communication to people with disabilities.
The first part of the worksheet is completed by filling in two
charts corresponding to the two major categories of communication
barriers discussed earlier in the chapter (visual and aural/oral). On
the left-hand side of the charts, list all types of information in
each communication category that are involved in the operation of the
program. Consider all aspects of the program, including classroom
activities, outreach, advertising, application processes, daily
operation, parent-teacher organization meetings, public meetings, and
special events. On the right-hand side of the charts are columns with
the names of common auxiliary aids and services. Check boxes to
indicate auxiliary aids or services that are currently provided or
available. Place an X in a box to indicate additional aids or
services that may be needed to ensure equally effective communication
for persons with disabilities.
* Print Page 244
The second part of the worksheet contains questions regarding:
-- primary consideration (responding to requests for aids and
services),
-- telephone communications and the use of TDDs,
-- access information and signage, and
-- emergency warnings and evacuation procedures.
DEVELOP COMMUNICATION STRATEGIES
Information collected should be summarized to facilitate review
and analysis by the communication subcommittee. By assembling
information in a format that enables the subcommittee to examine the
needs of the public entity as a whole, needs can be projected more
accurately and strategies adopted with greater confidence. Based on
their findings, the subcommittee should make recommendations to guide
the development of system-wide effective communication resources.
The subcommittee should determine whether communications
capacity should be developed in-house or purchased through contracts
with outside agencies. Some school districts may find it more
cost-effective to purchase copiers to make large print documents,
computer software for bigger fonts, or tape recorders for creating
audiotapes. Many school districts will find it cost-effective to hire
readers or interpreters on a part-time or even full-time basis
because of the need for these services. Other school districts will
find it more cost-effective to contract with other agencies to
provide sign language interpreters or to transcribe written documents
into Braille.
The analysis of communications resources can target three
general types of communications resource development strategies:
1. _Local. Establish procedures for optimum sharing of
existing or new communications resources at the program or department
level, such as copying machines that can enlarge documents to produce
large print or personal computers that can generate diskettes in
ASCII format.
2. _Central. Distribute centrally located resources
throughout the district. For example, provide access to a computer
with Braille output, a real-time transcription service, and an
* Print Page 245
audiocassette production service for all departments and programs.
3. _External. Establish standards and procedures for
contracting for communications services from sources outside the
school district, such as for sign language interpretation.
The communication review team can also make specific decisions
that will be reflected in budgeting and strategic planning. It can,
for example, determine the number of TDDs that must be available and
in what locations; the circumstances in which the use of a relay
service will be effective; the number of employees who will need
training in the use of TDDs; and the number of readers and
interpreters needed. In order to refine these estimates, school
districts can track the use of aids and services by people with
disabilities over time in order to reflect the actual usage and need.
It is recommended that systems be in place to collect this
information and to review it periodically by using the expertise of
persons with disabilities.
Worksheet 7-3, Communication Summary and Action Plan, is
designed for use at two levels. It may be used to summarize the
results of the Communication Access Assessment covering individual
programs, services or activities. The same worksheet can then be used
by the communication subcommittee to generate a summary of existing
communications resources throughout the school district and
communications resources throughout the district that need to be
developed. This overall summary should provide a fairly comprehensive
picture of the district's communication resources and needs. The
worksheet also documents those situations in which the provision of
effective communication would result in a fundamental alteration of
the program or in undue financial or administrative burdens.
(Remember that related aids and services that are necessary to ensure
the provision of a free appropriate public education are not subject
to the fundamental alteration/undue burden exception.)
* Print Page 246
Worksheet 7-1
COMMUNICATIONS SELF-EVALUATION SUBCOMMITTEE MEMBERS
SCHOOL DISTRICT: ----
NAME (ADA COORDINATOR): ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Use this worksheet to identify individuals in each organization
unit who should be involved in the self-evaluation of communication
policies and practices. In the first column, write the name and
title of individuals who will represent organizational units. In the
second column, write the name of the organizational unit.
Communication Subcommittee Members
In this empty table, columns follow each other in this order:
Name and Title: Unit Represented.
* Print Page 247
Worksheet 7-2
COMMUNICATION ACCESS ASSESSMENT
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
Assess and document the current ability of your program to
provide communication for persons with disabilities that is as
effective as the communication provided to persons who do not have
disabilities.
A. Communication Access
1. Visual Communication
Information that is communicated visually--such as through
printed materials or visual displays--must be made accessible to
people with visual disabilities through auxiliary aids and services.
Does the program involve information that is communicated
visually? -- Yes -- No
In the chart below, list each type of information that is
communicated visually. Consider all aspects of the program,
including, but not limited to, classroom activities, outreach,
advertising, public meetings or hearings, parent-teacher organization
meetings, ceremonies, and communication with the general public,
parents, applicants, and other program participants. Examples may
include brochures, forms, handbooks, textbooks, slide shows,
videotapes, and visual displays.
For each type of information, place a check below the auxiliary
aids or services currently available to people with visual
disabilities. Place an X below any additional aids or services that
may be necessary to provide effective communication of the
information. (More than one auxiliary aid or service may be needed
for each.)
In this table, columns follow each other in this order: Types
of information: large print; Braille; audiotape; readers; verbal
descriptions; computer disk; computer adaptations; other.
1. Brochure (example): X; Check Mark; X; X; --; X; --; --.
* Print Page 248
2. Aural/Oral Communication
(Note: ("Aural" refers to information that is heard; "oral"
refers to spoken information.)
Programs that communicate information aurally to applicants or
participants or that require an applicant or participant to use oral
communication must make that information accessible to people who
have hearing or speech disabilities by providing auxiliary aids and
services.
Does the program involve information that is communicated
verbally? -- Yes -- No
In the chart below, list each type of information that is
communicated aurally/orally. Consider all communication involved in
all aspects of the program, including, but not limited to, classroom
activities, Consider all aspects of the program, including, but not
limited to, classroom activities, outreach, advertising, public
meetings or hearings, parent-teacher organization meetings,
ceremonies, and communication with the general public, parents,
applicants, and other program participants. A variety of
interpreters may be needed, from American Sign Language interpreters
to oral interpreters for people who read lips or special interpreters
for deaf-blind persons.
For each type of information, place a check below the auxiliary
aids or services currently available to people with hearing or speech
disabilities. Place an X below any additional aids or services that
may be necessary to provide effective communication of the
information. (More than one auxiliary aid or service may be needed
for each.)
In this table, columns follow each other in this order: Types
of information: interpreters; assistive listening devices; TDD;
telephone amplification; notetakers; paper & pen; CART (real time);
captioning on films/videos; caption decoder; other.
1. public forum (example): --; X; X; Check Mark; Check Mark; --;
--; X; X; --.
* Print Page 249
3. Policies and Procedures on Communication Access
Title II's regulations require that public entities provide
people with disabilities an opportunity to request the type of
communication technology and assistance they prefer to use. In the
ADA regulations, communication technology and assistance are called
__auxiliary aids and _services.
An entity must give primary consideration to an individual's
preference for an auxiliary aid or service and must honor it unless
the entity can provide another _effective means of communication.
A public entity is not required to provide an auxiliary aid or
service if it would result in a fundamental alteration to the program
or in undue financial or administration burdens.
Does the program inform people with disabilities that
communication aids or services are provided upon request? -- Yes --
No
If so, please explain. ----
Does the program have a procedure for deciding which auxiliary
aid or service to provide? -- Yes -- No
Does the procedure provide for consideration of an individual's
preferred aid or service? -- Yes -- No
Does the procedure include a mechanism for determining that an
aid or service provided other than the requested aid or service is an
effective means of communication? -- Yes -- No
If the answer to any of these three questions is yes, please
describe. (For questions answered no, solutions will be addressed in
Worksheet 7-3). ----
* Print Page 250
B. Telecommunications
1. Telephone Communication
When a public entity communicates with the public by telephone,
Title II requires that TDDs or equally effective means the used to
communicate with people who have hearing or speech disabilities.
Title IV of the ADA mandates that telephone companies develop
telephone relay systems, which may be effective for short,
uncomplicated communications. Public entities should use TDDs
wherever telephone communication is a substantial part of a program's
operation. Your answers to the following questions will help you
determine whether a TDD may be essential for your program.
Does the program communicate with the public over the telephone?
-- Yes -- No
What kind of information is communicated by phone? ----
Are telephone communications ever lengthy, complex, or
technical? -- Yes -- No
Does the program have a TDD? -- Yes -- No
If not, solutions will be addressed in Worksheet 7-3.
If so, has the staff been trained in the use of the TDD? -- Yes
-- No
Please describe the training. ----
* Print Page 251
2. Telephone Emergency Services
If the program provides telephone access to emergency services,
the regulations require that direct access (to the same number(s)) be
provided to individuals who use TDDs; relying on a relay service is
not acceptable.
Does the program provide telephone access to emergency services?
-- Yes -- No
If so, does the program provide direct TDD access to the
emergency telephone number(s)? -- Yes -- No
If not, solutions will be addressed in Worksheet 7-3.
C. Other Communication
1. Emergency Warning and Evacuation
Emergency evacuation procedures for the program, service, or
activity must ensure that people with disabilities are made aware of
emergencies and are aware of exit procedures.
Is there a means of ensuring that people who are hard of hearing
or deaf are made aware of an activated alarm? -- Yes -- No
If not, solutions will be addressed in Worksheet 7-3.
Is there an established emergency evacuation procedure that
addresses the needs of individuals with disabilities? -- Yes -- No
If not, please describe the procedures the program will use in
facilities where means of egress are not accessible to provide safety
and evacuation for people who cannot use stairs. ----
Do staff members receive training in emergency evacuation
procedures? -- Yes -- No
Please describe. ----
* Print Page 252
2. Access Information
The Title II regulation requires that public entities ensure
that people with disabilities can obtain information about the
availability and location of accessible programs, services,
activities, and facilities. Information regarding the location of
accessible entrances, program sites, TDDs, and other access features
can be provided in a number of ways, such as in handbooks and
listings.
Explain how the program, service, or activity provides access
information to program applicants, participants, parents, and the
general public. ----
3. Signage
Title II requires that signs be placed at all inaccessible
entrances to each of a public entity's facilities, directing users to
an accessible entrance or to a location where information about
accessible facilities can be obtained. The international symbol for
accessibility must also be used at each accessible entrance of a
facility. Also, where TDD-equipped pay phones or portable TDDs
exist, clear signage should be posted indicating the location of the
TDD.
Are signs placed at all inaccessible entrances to each of the
facilities, directing users to an accessible entrance or to a
location where information about accessible facilities can be
obtained? -- Yes -- No
Is the international symbol for accessibility posted at each
accessible entrance of facilities? -- Yes -- No
Where TDD-equipped pay phones or portable TDDs exist, is clear
signage posted indicating the location of the TDD? -- Yes -- No
If the answer to any of these questions is no, solutions will be
addressed in Worksheet 7-3.
* Print Page 253
Worksheet 7-3
COMMUNICATION SUMMARY AND ACTION PLAN
SCHOOL DISTRICT: ----
WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----
TELEPHONE: ---- DATE: ----
NOTES: ----
After reviewing Worksheet 7-2, summarize the results of the
communication access assessment and identify actions needed to
achieve compliance with ADA requirements.
1. Existing Auxiliary Aids and Services
In this empty table, columns follow each other in this order:
Summarize currently available auxiliary aids and services. Categorize
by need (vision, hearing, speech.: Where are these now available?
Within program; Central location; Outside sources (list).
* Print Page 254
2. Needed Auxiliary Aids and Services
In this empty table, columns follow each other in this order:
Summarize needed auxiliary aids and services to be purchased or
contracted. Place an asterisk (*) next to those that will be
provided upon request; all others should be available at all times.
(Use additional sheets if necessary.): Where might these be provided?
Within program; Central location; Outside sources (list).
* Print Page 255
3. Primary Consideration
Public entities must give each individual with a disability an
opportunity to request the auxiliary aid or service of his or her
choice. That choice must be given primary consideration and must be
honored unless the entity can demonstrate that another effective
means of communication is available or that the auxiliary aid or
service requested would result in a fundamental alteration in the
program or in undue financial or administrative burdens.
Summarize a standardized process for individuals to express
their preferences for a particular type of auxiliary aid or service,
and the process to ensure that an effective auxiliary aid or service
is provided. ---
4. TDD Communications (Existing and Needed)
List programs that now have TDDs and identify programs for which
TDDs should be provided. Identify those programs that provide
emergency services for which TDDs will be provided. ----
Summarize plans for training staff in TDD use. ----
5. Emergency Warning Systems
Describe emergency warning systems and procedures, where they
are located, and where they will be added or modified. ----
* Print Page 256
6. Access Information
Describe how information on access will be communicated to the
public, program applicants, participants, and parents, and throughout
the school system.
7. Signage
As appropriate, describe how the international symbol for
accessibility will be placed at accessible entrances to facilities,
and describe how signs will be placed at inaccessible entrances to
facilities, directing users to an accessible entrance or to a
location where information about accessible facilities can be
obtained. As appropriate, describe how signage will be posted
indicating the location of TDD-equipped pay phones or portable TDDs.
8. Fundamental Alteration and Undue Burdens
List auxiliary aids or services for effective communications
that will not be implemented because to provide them would cause a
fundamental alteration to the program or undue financial or
administrative burdens. (Use additional sheets if necessary.)
In this empty table, columns follow each other in this order:
Program: Description of needed auxiliary aids and services, other
communication issues; Cost estimate; Explanation of fundamental
alteration OR undue financial or administrative burden.
* Print Page 257
** CHAPTER EIGHT COMPLIANCE PROCEDURES
This chapter reviews the enforcement procedures for Title II of
the Americans With Disabilities Act of 1990 and the remedies
available in the event that school districts are found not to be in
compliance. It outlines the process for filing complaints in general
and describes the specific process for employment-related complaints.
Miscellaneous provisions related to such issues as attorney's fees
are also discussed.
COMPLAINTS
The Title II regulation provides three ways individuals may seek
redress if they believe that they have been discriminated against on
the basis of disability: (1) by filing a complaint under the
allegedly discriminating institution's own grievance procedures; (2)
by filing a complaint with the federal agency responsible for
oversight of the type of institution alleged to have discriminated,
with any federal agency that funds the institution, or with the
Department of Justice; or (3) by filing a lawsuit for injunctive
relief and damages. Each of these three methods is discussed below.
It is important to note that the regulation does not require an
individual with a complaint to exhaust remedies available through the
public entity's grievance procedure before filing a complaint with
either a federal agency or court, nor does the individual have to
exhaust federal administrative remedies before exercising his or her
private right of action.
Filing Complaints Under Established Grievance Procedures
Individuals may complain under the institution's grievance
procedures. In order to encourage public entities to resolve disputes
internally, the Title II regulation requires that public entities
with 50 or more employees establish internal grievance procedures for
the resolution of complaints [28 C.F.R. 35.107(b)]. (See Chapter
Three, _Planning _for _Compliance.)
Filing Complaints With the Designated Federal Agency
An individual may file a complaint with any federal agency he or
she believes is the designated agency under Title II of the ADA
(i.e., the federal agency responsible for overseeing enforcement of
Title II for the particular type of public entity alleged to have
committed the violation, an agency that provides funding
* Print Page 258
to the public entity subject to the complaint, or the Department of
Justice) [28 C.F.R. 35.170 (c)].
The U.S. Department of Education is the designated agency to
enforce both Title II and Section 504 in public elementary and
secondary education systems and institutions [28 C.F.R.
35.190(b)(2)]. The Office for Civil Rights (OCR) is the agency within
the U.S. Department of Education delegated the responsibility to
enforce both Title II and Section 504. Accordingly, it is authorized
to process complaints against public schools arising under both
Section 504 and Title II in the same manner that Section 504
complaints are processed, i.e., through OCR's internal case
processing procedures [28 C.F.R. 35.171(a)(3)(i)]. Note that
_employment-related complaints against public entities with 15 or
more employees that are federal fund recipients may be processed
differently (see below).
Section 504 prohibits discrimination on the basis of disability
in programs and activities, both public and private, that receive
federal financial assistance. Because the Civil Rights Restoration
Act clarified the application of Section 504 to __all the operations
of an institution receiving federal financial _assistance, the
programs and activities of virtually all public elementary and
secondary education systems and institutions are already covered by
Section 504. As a result, for public elementary and secondary systems
and institutions, the compliance and enforcement procedures under
Title II will be the same as the compliance and enforcement
procedures under Section 504.
If the alleged discrimination occurs in a program, service, or
activity of an institution that receives federal funding and the
agency is therefore subject to Section 504, the procedures for
administrative enforcement set forth in Section 504 will be used.
This means that the sanctions for discrimination would include the
loss of federal funding or referral to the Department of Justice for
judicial proceedings. If the alleged discrimination occurs in an
institution that does _not receive federal funding, a designated
agency will process the complaint and, if voluntary compliance cannot
be achieved, refer the case to the Department of Justice for
enforcement in accordance with procedures outlined in Subpart F of
the Title II regulation. These procedures are similar to OCR's
procedures for processing Section 504 complaints: Both establish
intake mechanisms that require letters of acknowledgment to the
complainant and the public entity, alternative means of dispute
resolution, investigation of a complete complaint and resolution
where possible, issuance of complaint resolution letters or letters
of finding, and voluntary compliance agreements [28 C.F.R.
35.171-35.173].
Pursuant to Title II, and/or Section 504, any individual who
believes he or she or a class of individuals has been subjected to
discrimination on the basis of disability by a public entity may *
Print Page 259 file a complaint [28 C.F.R. 35.170]. Complainants
have 180 days from the date of the alleged discrimination to file a
complaint with any federal agency believed to be the appropriate
designated agency unless good cause is shown to extend the time for
filing.
Complaints filed under either Title II or Section 504 will be
analyzed under both Section 504 and Title II if both are applicable.
In assessing compliance, OCR must apply Title II standards, to the
extent that Title II provides greater protection than Section 504.
Additionally, Title II cannot be construed to adopt a lesser standard
than Section 504 [28 C.F.R. 35.103(a)].
28 C.F.R. 35.103 Relationship to other laws. (a) _Rule _of
_interpretation. Except as provided in this part, this part shall
not be construed to apply a lesser standard than the standards
applied under Title V of the Rehabilitation Act of 1973 (29 U.S.C.
791) or the regulations issued by Federal agencies pursuant to that
title.
If efforts to attain a settlement in a case under both Section
504 and Title II are not successful, OCR may seek termination of
federal funds or refer the case to the Department of Justice, which
may then file suit against the public entity in federal district
court. Complaints filed only under Title II are referred to the
Department of Justice for enforcement only if OCR's efforts to
achieve voluntary compliance are unsuccessful [28 C.F.R. 35.174].
Filing Lawsuits Through the Court System
In addition to using an institution's grievance procedures or
filing an administrative complaint with a federal agency, individuals
have the right to file a lawsuit in federal district court. In any
action or administrative proceeding, a court or agency in its
discretion may allow the prevailing party (other than the U.S.)
reasonable attorney's fees, in addition to any other relief. The
prevailing party is the party that is successful and may be either
the complainant (plaintiff) or the covered entity against which
action is brought (defendant). The United States is liable for
attorney's fees in the same manner as any other party, but is not
entitled to them when it is the prevailing party. Attorney's fees
include litigation expenses such as expert witness fees, travel
expenses, and costs.
EMPLOYMENT-RELATED COMPLAINTS
Complaints filed by job applicants or employees who believe they
have been discriminated against in employment on the basis of
disability by public elementary and secondary institutions may be
processed by the U.S. Equal Employment Opportunity Commission (EEOC)
or OCR. The EEOC enforces Title I of the ADA, which prohibits job
discrimination by employers with at least 15 employees [29 C.F.R.
1630.2(e)(1)]. The EEOC follows case procedures which, like OCR,
involve fact-finding, informal resolution, and possible referral for
enforcement to the Department of Justice if voluntary compliance
cannot be achieved.
* Print Page 260
The EEOC processes all complaints of employment discrimination
that arise under Titles I and II where there is no Section 504
jurisdiction. (Virtually all school districts are covered by Section
504.) OCR processes all complaints of employment discrimination that
arise under Title II and Section 504 where there is no Title I
jurisdiction. (Virtually all school districts are covered by Title
I.)
A complaint that is covered by Title I and Section 504, whether
or not it is covered by Title II, and that alleges only individual
allegations of employment discrimination, will generally be processed
by the EEOC. If the complaint is filed with the EEOC, that agency
will handle it and it will be generally considered as filed under
Title I only [59 Fed. Reg. 39906 (1994) (to be codified at 28 C.F.R.
37.7 and 29 C.F.R. 1640.7)]. If a complaint is filed with OCR,
it will be referred to the EEOC, which has greater expertise in
employment discrimination cases, unless the complainant specifically
requests that OCR retain the case [59 Fed. Reg. 39905-06 (1994) (to
be codified at 28 C.F.R. 37.6(c) and 29 C.F.R. 1640.6(c))]. When
an employment discrimination complaint is filed with OCR that alleges
a pattern or practice of employment discrimination, or that includes
allegations of discrimination in non-employment benefits and
services, it will be retained by OCR [59 Fed. Reg. 39906 (1994) (to
be codified at 28 C.F.R. 37.6(d) and 29 C.F.R. 1640.6(d))].
Since the substantive protections provided by Title I and
Section 504 are now identical, an individual's rights against
discrimination in employment on the basis of disability can be
vindicated under either statute [59 Fed. Reg. 39902 (1994)].
Complainants should be aware that available remedies may possibly
differ depending upon whether they file a complaint with the EEOC or
OCR. (For further information regarding available remedies, please
contact the OCR regional office that serves your state. See
_Resources.) Also, it is important to note that an individual who
files a complaint with a Section 504 agency, such as OCR, and who
alleges discrimination both in employment and other services or a
pattern or practice of discrimination, or who specifically requests
Section 504 processing, does not preserve a private right of action
under Title I of the ADA, unless the individual also files a charge
with the EEOC under Title I of the ADA [59 Fed. Reg. 39902 (1994)].
* Print Page 261
RESOURCES
The following is a brief annotated list of useful sources of
information and assistance available to help school districts
understand and respond to their responsibilities under the ADA,
Section 504 of the Rehabilitation Act of 1973, and the Individuals
with Disabilities Education Act. Feel free to contact the
organizations to identify specific resources that address your needs.
FEDERAL AGENCIES
The federal agencies listed below are responsible for
implementing various facets of the ADA, Section 504 of the
Rehabilitation Act of 1973, or the Individuals with Disabilities
Education Act. All of these agencies provide technical assistance.
U.S. Department of Education
Office for Civil Rights
330 C Street, S.W., Room 5000
Washington, D.C. 20202
(202) 205-5413 (voice); (800) 358-8247 (TDD)
The U.S. Department of Education's (ED) Office for Civil Rights
(OCR) enforces Title II of the ADA and Section 504 of the
Rehabilitation Act of 1973. OCR has the responsibility for enforcing
Title II with respect to all programs, services, and regulatory
activities relating to the operation of public elementary and
secondary education systems and institutions, public institutions of
higher education and vocational education (other than schools of
medicine, dentistry, nursing, and other health-related schools) and
public libraries. ED's Section 504 regulation applies to preschool,
elementary, secondary, postsecondary, vocational, and adult education
programs and activities, as well as other programs and activities
that receive or benefit from federal financial assistance.
OCR investigates complaints filed by individuals, or their
representatives, who believe that they have been discriminated
against because of disability. OCR also initiates compliance reviews
of institutions and agencies, and monitors the progress of
institutions and agencies that are implementing corrective action
plans negotiated by OCR. OCR attempts to resolve compliance problems
identified in the course of an investigation through negotiation.
However, if negotiation fails, OCR will initiate proceedings to
terminate the institution's funding or refer the case to the
Department of Justice for court action. * Print Page 262
OCR offers technical assistance to help entities with
responsibilities under the civil rights laws enforced by OCR achieve
voluntary compliance by understanding their legal obligations, and to
help those protected by the laws it enforces to understand their
rights. As part of its technical assistance activities, OCR
distributes information and materials and provides consultation on
the requirements of the civil rights laws under its authority.
OCR consists of administrative offices that are located at the
Department of Education's headquarters in Washington, D.C., and ten
regional offices around the country. Addresses and telephone numbers
for the regional offices are provided below.
Region I (CT, ME, MA, NH, RI, VT)
Office for Civil Rights, Region I
U.S. Department of Education
J.W. McCormack Post Office and Courthouse, Room 222, 01-0061
Boston, MA 02109-4557
(617) 223-9662 (voice)
(617) 223-9695 (TDD)
Region II (NJ, NY, Puerto Rico, Virgin Islands)
Office for Civil Rights, Region II
U.S. Department of Education
26 Federal Plaza, 33rd Floor
Room 33-130, 02-1010
New York, NY 10278-0082
(202) 264-5180 (voice)
(202) 264-9464 (TDD)
Region III (DE, DC, MD, PA, VA, WV)
Office for Civil Rights, Region III
U.S. Department of Education
3535 Market Street
Room 6300, 03-2010
Philadelphia, PA 19104-3326
(215) 596-6772 (voice)
(215) 596-6794 (TDD)
Region IV (AL, FL, GA, NC, SC, TN)
Office for Civil Rights, Region IV
U.S. Department of Education
101 Marietta Tower, Suite 2700, 04-3010
Atlanta, GA 30301-2048
(404) 331-2954 (voice)
(404) 331-7816 (TDD)
* Print Page 263
Region V (IL, IN, MI, MN, OH, WI)
Office for Civil Rights, Region V
U.S. Department of Education
401 South State Street
Room 700C, 05-4010
Chicago, IL 60605-1202
(312) 886-3456 (voice)
(312) 353-2541 (TDD)
Cleveland: (216) 522-4970 (voice)
(216) 522-4944 (TDD)
Region VI (AR, LA, MS, OK, TX)
Office for Civil Rights, Region VI
U.S. Department of Education
1200 Main Tower Building
Suite 2260, 06-5010
Dallas, TX 75202-9998
(214) 767-3959 (voice)
(214) 767-3639 (TDD)
Region VII (IA, KS, KY, MO, NE)
Office for Civil Rights, Region VII
U.S. Department of Education
10220 North Executive Hills Boulevard
8th Floor, 07-6010
Kansas City, MO 64153-1367
(816) 891-8026 (voice)
(816) 374-6461 (TDD)
Region VIII (AZ, CO, MT, NM, ND, SD, UT, WY)
Office for Civil Rights, Region VIII
U.S. Department of Education
Federal Building, Suite 310, 08-7010
1244 Speer Boulevard
Denver, CO 80204-3584
(303) 844-5695 (voice)
(303) 844-3417 (TDD)
Region IX (CA)
Office for Civil Rights, Region IX
U.S. Department of Education
Old Federal Building, 09-8010
50 United Nations Plaza
Room 239
San Francisco, CA 94102-4102
(415) 556-7000 (voice)
(415) 556-6806 (TDD)
* Print Page 264
Region X (AK, HI, ID, NV, OR, WA, American Samoa, Guam,
Trust Territory of the Pacific Islands)
Office for Civil Rights, Region X
U.S. Department of Education
915 Second Avenue
Room 3310, 10-9010
Seattle, WA 98174-1099
(206) 220-7880 (voice)
(206) 220-7907 (TDD)
U.S. Department of Education
Office of Special Education and Rehabilitative Services
330 C Street, S.W., Room 3006
Washington, D.C. 20202
(202) 205-5465 (voice/TDD)
The U.S. Department of Education's Office of Special Education
and Rehabilitative Services (OSERS) supports programs that assist in
educating children with special needs, provides for the
rehabilitation of youth and adults with disabilities, and supports
research to improve the lives of individuals with disabilities. OSERS
is divided into three program areas: the Office of Special Education
Programs (OSEP), the Rehabilitation Services Administration (RSA),
and the National Institute on Disability and Rehabilitation Research
(NIDRR).
OSEP is responsible for administering programs relating to the
free appropriate public education of all children, youth, and adults
with disabilities. OSEP oversees programs to expand and improve
special education, administers grants to state education agencies to
help state and local districts serve children and youth with special
needs, and monitors state programs to ensure that students with
disabilities receive appropriate education and that their rights and
those of their parents or guardians are protected. OSEP also
administers programs to train special education teachers and conducts
research in improved methods of special education.
RSA allocates grants to state vocational rehabilitation agencies
to help individuals with physical or mental disabilities obtain
employment through counseling, medical and psychological services,
job training, and other individualized services. RSA also funds
programs that train rehabilitation professionals, enrich the lives of
individuals with disabilities, increase the employment opportunities
of individuals with disabilities, and enable people with severe
disabilities to live more independently with their families or in
their communities.
NIDRR provides leadership and support for a comprehensive and
coordinated national and international program of * Print Page 265
rehabilitation research. Working with both federal and private-sector
organizations, NIDRR develops and implements long-range plans for
rehabilitation research and coordinates the work of all federal
agencies supporting or conducting such research. NIDRR has also
awarded grants to provide technical assistance to those with rights
and duties under the ADA.
U.S. Department of Justice
Civil Rights Division
Public Access Section
P.O. Box 66738
Washington, D.C. 20035-6738
ADA Information Line: (800) 514-0301 (voice); (800) 514-0383 (TDD)
To access publications on the ADA electronically: (202) 514-6193
(electronic bulletin board)
The U.S. Department of Justice (DOJ) enforces ADA provisions
prohibiting discrimination on the basis of disability in state and
local government services (Title II) and in public accommodations and
commercial facilities (Title III). DOJ provides technical assistance
on the ADA. ADA specialists are available to provide technical
assistance on the ADA Information Line 10 A.M. to 6 P.M. eastern
time Mondays through Fridays, except Thursdays when the hours are 1
P.M. to 6 P.M. Publications available from DOJ include the Title II
and Title III regulations, the __Americans with Disabilities Act
Title II Technical Assistance _Manual and the __Americans with
Disabilities Act Title III Technical Assistance _Manual, as well as
pamphlets and fact sheets explaining responsibilities and rights
under Title II and Title III of the ADA.
U.S. Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington, D.C. 20507
ADA Helpline: (800) 949-4232 (voice/TDD)
To order publications: (800) 669-EEOC (voice); (800) 800-3302 (TDD)
For referral to district, field, area and local offices:
(800) 669-4000 (voice); (800) 800-3302 (TDD)
The U.S. Equal Employment Opportunity Commission (EEOC) enforces
Title I provisions prohibiting discrimination in employment against
qualified individuals with disabilities. The EEOC investigates
complaints filed by job applicants or employees who believe they have
been discriminated against in employment on the basis of disability.
The EEOC also provides information, speakers, technical assistance,
training, and referral to specialized resources to employers and
people with disabilities. Publications available from the EEOC
include the Title I regulation, __A Technical Assistance Manual on
the Employment Provisions (Title I) of the Americans with
Disabilities _Act, as well as booklets and fact * Print Page 266
sheets that explain employer responsibilities and rights of
individuals with disabilities.
Architectural and Transportation Barriers Compliance Board
1331 F Street, N.W., Suite 1000
Washington, D.C. 20004-1111
(800) USA-ABLE (872-2253) (voice/TDD)
(800) 993-2822 (TDD)
(202) 272-5434 (voice/TDD)
(202) 272-5449 (TDD)
The Architectural and Transportation Barriers Compliance Board
(Access Board) develops accessibility guidelines under Titles II and
III of the ADA and enforces accessibility standards under the
Architectural Barriers Act (ABA). The Access Board provides telephone
assistance and training on technical and scoping requirements for
accessibility and offers general technical assistance on the removal
of architectural, transportation, and communication barriers
affecting people with disabilities. Publications available for
dissemination include: __ADA Accessibility Guidelines (ADAAG) for
Buildings and _Facilities; an ADAAG checklist for buildings and
facilities; and bulletins on technical and design questions related
to accessibility, covering such issues as parking, slip-resistant
surfaces, visual alarms, detectable warnings, and TDDs.
U.S. Department of Housing and Urban Development
Community Planning and Development
451 7th Street, S.W.
Washington, D.C. 20410-4000
(202) 708-0270 (voice)
The U.S. Department of Housing and Urban Development allocates
funds (Community Development Block Grants) to carry out a wide range
of community development activities, including access improvements.
Decisions on which projects are funded are made by units of general
local government and in rural areas, by states in conjunction with
units of general local government.
U.S. Department of Transportation
400 Seventh Street, S.W., Room 10424
Washington, D.C. 20590
(202) 366-9305 (voice)
(202) 755-7687 (TDD)
The U.S. Department of Transportation enforces and provides
technical assistance concerning the ADA provisions that require
nondiscrimination in public (Title II) and private (Title III) mass
transportation systems and services. Publications available for
dissemination include regulations * Print Page 267 concerning
transportation for individuals with disabilities and a handbook for
implementing complementary paratransit service requirements of the
ADA.
Federal Communications Commission
1919 M Street, N.W.
Washington, D.C. 20554
(202) 418-0200 (voice)
(202) 632-6999 (TDD)
The Federal Communications Commission (FCC) enforces and
provides technical assistance concerning the telecommunication
provisions of the ADA (Title IV), which require that companies
offering telephone service to the general public offer telephone
relay services to individuals who use TDDs or similar devices. The
FCC also enforces the requirements for closed captioning of federally
produced or federally funded television public service announcements.
Publications available for dissemination include the regulations
concerning telecommunication services for persons with hearing and
speech disabilities and __Telecommunications Relay Service: An
Informational _Handbook.
The President's Committee on Employment of People with Disabilities
1331 F Street, N.W., Third Floor
Washington, D.C. 20004
(202) 376-6200 (voice)
(202) 376-6205 (TDD)
The President's Committee on Employment of People with
Disabilities (Committee) provides information and advice on the
employment of people with disabilities. The Committee conducts
training conferences on the ADA, and works with state organizations
(President's Committee Partners) to increase employment opportunities
for people with disabilities. The President's Committee Partners
provide technical assistance on employment and information on
auxiliary aids and services to ensure effective communication. The
Committee funds the Job Accommodation Network, which provides free
consultation on specific accommodation issues. The Committee provides
a range of informational materials on the ADA and practical guidance
on job analysis, job accommodation and modification, hiring and
training people with disabilities, job placement, supervising
employees with mental retardation, vocational rehabilitation,
disability legislation and regulations, and working with people who
have specific disabilities such as multiple sclerosis, blindness,
diabetes, cerebral palsy, and cystic fibrosis.
* Print Page 268
DISABILITY AND BUSINESS TECHNICAL ASSISTANCE CENTERS
The National Institute on Disability and Rehabilitation Research
has funded a network of ten regional Disability and Business
Technical Assistance Centers (DBTACs). The DBTACs provide
information, training, and technical assistance to businesses and
other entities with responsibilities under the ADA and to people with
disabilities. The DBTACs act as a "one-stop" central source of
information, direct technical assistance, training, and referral on
ADA issues concerning employment, public accommodations, public
services, and communications.
A list of the ten technical assistance centers is provided
below. You can contact any DBTAC by dialing the telephone number
listed, or dial 1-800-949-4ADA (voice/TDD) to be automatically
connected to the DBTAC in your region.
_New _England DBTAC (Region I: CT, ME, MA, NH, RI, VT)
University of Southern Maine
Muskie Institute of Public Affairs
145 Newbury Street
Portland, ME 04101
(207) 874-6535 (voice/TDD)
(207) 874-6529 (fax)
_Northeast DBTAC (Region II: NJ, NY, PR, VI)
United Cerebral Palsy Association of New Jersey
354 South Broad Street
Trenton, NJ 08608
(609) 392-4004 (voice)
(609) 392-7044 (TDD)
(609) 392-3505 (fax)
_Mid-Atlantic DBTAC (Region III: DE, DC, MD, PA, VA, WV)
Independence Center of Northern Virginia
2111 Wilson Boulevard, Suite 400
Arlington, VA 22201
(703) 525-3268 (voice/TDD)
(703) 525-6835 (fax)
_Southeast DBTAC (Region IV: AL, FL, GA, KY, MS, NC, SC, TN)
United Cerebral Palsy Association
1776 Peachtree Street, Suite 310N
Atlanta, GA 30309
(404) 888-0022 (voice/TDD)
(404) 888-9001 (fax)
* Print Page 269
_Great _Lakes DBTAC (Region V: IL, IN, MI, MN, OH, WI)
1640 West Roosevelt Road (M/C626)
Chicago, IL 60608-6902
(312) 413-1407 (voice/TDD)
(312) 413-1856 (fax)
_Southwest DBTAC (Region VI: AR, LA, NM, OK, TX)
The Institute for Rehabilitation and Research (TIRR)
2323 S. Shepherd Boulevard, Suite 1000
Houston, TX 77019
(713) 520-0232 (voice/TDD)
(713) 520-5785 (fax)
_Great _Plains DBTAC (Region VII: IA, KS, MO, NE)
University of Missouri at Columbia
4816 Santana Circle
Columbia, MO 65203
(312) 882-3600 (voice/TDD)
(312) 884-4925 (fax)
_Rocky _Mountain DBTAC (Region VIII: CO, MT, ND, SD, UT, WY)
Meeting the Challenge, Inc.
3630 Sinton Road, Suite 103
Colorado Springs, CO 80907-5072
(719) 444-0252 (voice)
(719) 444-0268 (TDD)
(719) 444-0269 (fax)
_Pacific DBTAC (Region IX: AZ, CA, HI, NV, PB)
Berkeley Planning Associates
440 Grand Avenue, Suite 500
Oakland, CA 94610
(510) 465-7884 (voice)
(510) 465-3172 (TDD)
(510) 465-7885 (fax)
_Northwest DBTAC (Region X: AK, ID, OR, WA)
Washington State Governor's Committee
605 Woodland Square Loop SE
Olympia, WA 98507-9046
(360) 438-4116 (voice/TDD)
(360) 438-4014 (fax)
* Print Page 270
OTHER
Adaptive Environments, Inc.
374 Congress Street, Suite 301
Boston, MA 02210
(617) 695-1225 (voice/TDD)
(800) 893-1225 (voice/TDD)
Founded in 1978 as a nonprofit organization, Adaptive
Environments develops and conducts educational programs and produces
publications on accessibility (including award-winning design
guidelines). Adaptive Environments is currently managing a three-year
grant to help public schools comply with the ADA. Through this grant,
training, publications, and limited technical assistance will be
provided to interested school districts. Adaptive Environments also
manages a Universal Design Information Network on the Internet.
Job Accommodation Network
West Virginia University
P.O. Box 6080
Morgantown, WV 26506
(800) 526-7234 (accommodation information) (voice/TDD)
(800) ADA-WORK (ADA Information) (voice/TDD)
(800) DIAL JAN (ADA information) (computer modem)
The Job Accommodation Network (JAN) is funded by the President's
Committee on Employment of People with Disabilities. Through
telephone consultation with professional human factors counselors,
the JAN provides information and advice to employers and people with
disabilities about custom job and worksite accommodations.
The JAN performs individualized searches for workplace
accommodations based on the job's functional requirements, the
functional limitations of the individual, environmental factors, and
other pertinent information. The JAN assists employers and
individuals with disabilities in the use of a variety of public
programs. ADA Work Line, a toll-free hotline, is staffed by people
experienced in discussing the application of the ADA, especially as
it relates to accommodation and accessibility issues.
* Print Page 271
INDEX
Italicized numbers indicate [print] pages with code citations;
numbers in parentheses indicate worksheet [print] pages.
Access information. See Signage and information
Access solutions. See Facility accessibility; Program
accessibility; Structural modifications
Access standards, 159-160, 172-173, 180, 181-182. See also Facility
accessibility; Existing facilities
ADAAG, 159-160, 172-173, 180, 181-182
compared with UFAS, 172-173
Access symbols, 34, 35, 238
Accessibility. See Facility accessibility; Program accessibility
Accessible features, maintenance of, _174-175
Accessible formats. See Auxiliary aids and services; Communication
Accommodation. See Reasonable accommodation
Action steps, 31-45. See also Compliance
designation of responsible employee, _32
notice, _33-35, 44
complaint procedure, _35-37
self-evaluation, _37, _38, 44. See also Self-evaluation
transition plan, _39-40, 44-45. See also Transition plan
ADAAG (ADA Accessibility Guidelines), 159-160, 172-173, 180, 181-182
compared with UFAS, 172-173
ADA (Americans with Disabilities Act), 1-3, 25-29, 52.
background, 1
consultants, 52
effective dates, 1-2
exclusions from protection, 25-29
overview of titles, 1-3
Title I. See Title I
Title II. See Title II
Title III, 2
Title IV, 2
Title V, 2-3
ADA coordinator, _32, 41-43, 47-48
designation of, _32
role of, 32
training of, 47-48
ADA compliance team. See Compliance team
ADA training, 42, 45
Additional charges. See Surcharges
Administrative burden. See Undue burden
Aides, 162
AIDS, 119
Alarms, flashing, 226
Alcoholism, 29
Alterations to existing facilities. See Existing facilities
Alternative formats, 35, 226, 231-233. See also Auxiliary aids
and services; Communication, alternatives to aural/oral
examples of, 35, 226
for visual communication, 231-233
American Sign Language Interpreters. See Qualified Interpreters
Americans with Disabilities Act. See ADA
Amplification, telephone, 226, 234
Application form, 114-115, 132, (147)
Application process, employment, 114-116
Apprenticeship programs, 124
Architectural and Transportation Barriers Compliance Board, 266
Architectural barriers. See Program accessibility
Architectural modifications. See Transition Plan
Assembly areas, (210)
Assistive listening systems, 163, 226, 234
Associational discrimination, 23-24, 125-126
in employment, 125-126
examples of, 23-24, 125
in provision of services, 23-24
ATBCB, 266
Audiotape, 231-232
Aural/oral communication, 233-235, 242, (248). See also
Auxiliary aids and services
alternatives to, 233-235
review, 242, (248)
Auxiliary aids and services, _226-228, 229, 230-235. See also
Communication; Related aids and services
comparison with related aids and services, 227
examples, 226, 229, 330
factors to be weighed in selecting, 228-230
and FAPE, 227
primary consideration, _228
for public events, 228
technologies, 230-235
Back doors, 164
Background of the ADA, 1
Barriers. See Communication; Facility accessibility; Program
accessibility
Basic equal opportunity requirements, 66-71. See also General
prohibitions against discrimination
denial of opportunity to participate or benefit, _66
examples, 66
not equally effective benefit or service, _68-69
example, 68-69
separate or different programs, _69-71
application to FAPE, 70-71
examples, 70-71
general application, 69-70
unequal opportunity to benefit, 66-68, _67
example, 67
Benefits and privileges of employment, 120-122
Blindness. See Auxiliary aids and services; Communication
Braille, 172, 231, 232, 233
computer output, 232
input devices, 233
Cafeterias, (211-212)
Captioning, 226, 235. See also Auxiliary aids and services;
Communication, alternatives to aural/oral
Carrying an individual with a disability, 164
* Print Page 272
Cassette tape, 231-232
Certification, 78
Charges, additional, 71-72
Checklist, 180-182, (191-214)
Citizenship, U.S., 29
Classifying job applicants. See Job applicants
Classroom buildings, 158-159
Coercion, _24, 126
Collective bargaining agreement, 124
Comments on proposed changes, 83. See also involvement of
persons with disabilities
Commitment from senior leadership of school system, 41
Communicable diseases, 119
Communication, 225-245, (246-256). See also Auxiliary aids and
services; Braille; Signage and information; TDD; Telephone
communication
alternatives to aural/oral, 233-235
alternatives to visual, 231-233
auxiliary aids and services. See Auxiliary aids and
services
barriers that prevent effective, 230-231
computer adaptations, 232-233, 234-235
and fundamental alteration/undue burden, 239
at public events, 228
relationship between Section 504 and Title II requirements,
226-228
requirements for effective, _225-240
review of. See Communication review
structural features, 239-240
subcommittee, 244
subpart of Title II, 8
Communication Access Assessment, 242-244, 247-252
Communication review, 241-245, (246-256)
communications practices, 241
conducting the, 242-244
developing communication strategies, 244-245, (253-256)
implementation of, 241-245, (246-256)
overview of Title II requirements, 241
preparing to conduct the, 241-242, (246)
programs, services, and activities, 242
signage and information, 243
structural features, 239-240
subcommittee, 241-242, 244, (246)
summary and action plan, 244-245, (253-256)
telecommunication, 243
written policy, 241
Complaints, _35-37, (257-260). See also Enforcement; Grievance
procedures
establishing a procedure, _35-37
filing with designated federal agency, 257-260
filing under institution's grievance procedures, 257
filing lawsuits through court system, 259
Compliance, 9, 39-46, 48-52, 242-244, (247-252), 257-260. See
also Self-evaluation; Transition plan; Worksheets
action steps. See Action steps
Communication Access Assessment, 242-244, (247-252)
complaints. See Complaints
coordinator. See ADA coordinator
deadlines, 40
employment-related, 259-260
5-4-3 approach, 31-32
flowchart, 46
initiating the compliance process, 48-52
institutionalizing, 42-43
phases, 43-46
planning for. See Planning for compliance
principles of effective, 41-43
procedures, subpart of Title II, 9, 257-260. See also
Enforcement; Grievance procedures
role of persons with disabilities in. See Involvement of persons
with disabilities
structuring and initiating the process, 48-52
team, 42, 43-44, 48-52
involvement of persons with disabilities in, 42, 49-50
for large school districts, 48-49
subcommittees, 51
timeline, 39-40
Compliance team, 42, 43-44, 48-52
Computer adaptations, 232-233, 234-235
Computer-aided real-time transcription (CART), 226, 233
Computer diskette, 232-233
Confidentiality, 118
Conflict of ADA with other federal laws, 127
Consultants, ADA, 52
Contractual relationships, 78, 123-124
choice of contractors, 123-124
ensuring compliance of, 124
example, 124
labor unions, 124
procurement, 78
Coordination of compliance activities, 41-42. See also ADA
coordinator; Compliance, principles for effective
Coordinator. See ADA coordinator
Corridors, (199-200)
Covered activities under Title II, 3-4
Covered entities under Title II, 3-4
Curb cuts/ramps, 173, (223)
Current services, policies, and practices, evaluation of, 44
DBTACs, 50, 268-269
Deadlines for compliance, 40
Deafness. See Auxiliary aids and services; Communication;
Disability
Deaf-blind, 231. See also Auxiliary aids and services;
Communication; Disability
Decoders, 235
Defenses to charge of discrimination, 126-127, 165-166, 239
in employment, 126-127
fundamental alteration/undue burden, 165-166, 239
in program access, 165-166
Denial of opportunity to participate or benefit, 66
Department of Education, 258, 261-264. See also Office for Civil
Rights
Department of Health and Human Services, 119
Department of Housing and Urban Development, 266
Department of Justice, 258
Department listing, 82, 129
Department of Transportation, 266-267
Designated enforcement agencies, 9, 257-260. See also
Enforcement
subpart of Title II, 9
Designated historic buildings. See Historic buildings
Designation of responsible employee, _32
* Print Page 273
Different programs. See Separate or different programs
Direct threat to health and safety, 25-26, 118-119
examples, 26, 119
Disability, _11-20. See also Exclusions; Impairment; Involvement
of persons with disabilities; Major life activity; Qualified
individual with a disability
exclusions from definition, 12
persons regarded as having, _17-20
persons with a record of, _17-20
Disability and Business Technical Assistance Centers, 50, 268-269
Disability community. See Involvement of persons with disabilities
Discrimination. See Communication; Compliance; Employment;
General nondiscrimination requirements; Program accessibility
Disparate impact, 126-127
Disparate treatment, 126
Doors, (198, 199-200, 202, 205-206, 208, 210, 211)
Drinking fountains, (203)
Drug testing, 118
Drug use, illegal, 27-28
examples, 28
Due process (as part of FAPE), 64
EEOC, 98, 259-260, 265-266
Educational setting (as part of FAPE), 62
Effective communication. See Communication
Effective dates, 1, 2 40
Section 504, 40
Title I, 1
Title II, 40
Electronic speech aids, 235
Elevators, 164, (201)
Eligibility criteria. See General prohibitions against discrimination
Emergency telephone services, _237-238
Emergency warning systems, 226
Employee handbook, 42, 134, (150-151)
Employment, 97-135. See also Employment review
advertisements, 114
application form, 114-115
application process, 114-116
applicable legal standards for, 98-99
associational discrimination. See Associational
discrimination
benefits and privileges of, 120-122
contractual relationships. See Contractual relationships
covered activities, 99-100
covered employers, 98
defenses to charge of discrimination in, 126-127
direct threat to health and safety, 118-119
example, 119
drug testing, 118
effective dates, 1
essential functions. See Essential functions
health insurance, 120-121
interview, 114-115
job descriptions, 103
job advertisements and notices, 114
job applicants, limiting, segregating, or classifying. See Job
applicants
major life activity. See Major life activity
medical examinations and inquiries. See Medical examinations
and inquiries
medical files, 118
overview of legal requirements, 1-2, _99-100
policies and practices requirements, 97-135
pre-employment inquiries, 114-115
qualification standards and selection criteria, 112-113
example, 113
qualified individual with a disability, 100-_101
example, 101
reasonable accommodation. See Reasonable accommodation
relationship between ADA and Section 504 requirements, 98-99
retaliation or coercion, 126
selection criteria, 112-113
example, 113
subcommittee, 51
subpart of Title II, 7-8
testing, _115-116
undue hardship, _110-112, 127
Employment review, 128-135, (136-154)
employment subcommittee, 128-129, (136)
identifying essential job functions, 131, (140-141)
implementation of, 128-135, (136-154)
organizing the self-evaluation process, 129-130, (137-139)
preparing to conduct the, 128-130
reviewing policies and procedures, 131-135, (142-154)
advertising, 132, (146-147)
application form, 132, (147)
current employees, 134-135, (152-154)
employee recruitment, 132, (146-151)
health insurance and other benefits, 133-134, (150)
job interview, 133, (148-149)
job tests, 133, (149)
medical inquiries and examinations, 133, (149-150)
personnel policies manual, 134, (150-151)
reasonable accommodation, 131-132, (142-145)
training key personnel, 130
Enforcement, 9, 35-37, 257-260. See also Compliance
designated agencies for, 9, 257-260
filing complaints, 35-37, 257-260
Entrances, (198), 238
signage at, 238
Equal Employment Opportunity Commission, 98, 259-260, 265-266
Equal opportunity, basic requirements. See Basic equal
opportunity requirements
Equipment or devices, 106-107. See also Reasonable accommodation
acquiring or modifying, 106-107
examples, 106-107
Essential job functions, 101-104, _102
examples, 102-103
factors to be weighed, 102
job description, 103
review, 131, (140-141)
Evaluating current services, policies, and practices, 44
Evaluation (as part of FAPE), 63
* Print Page 274
Exclusions, 12, 25-29
from ADA protection, 25-29
from definition of disability, 12
Executive committee, 50
Existing facilities. 155-156, 157-170, _158. See also Facility
accessibility
and architectural accessibility standards, 159-160
Exterior route of travel, (193-194)
External relations. See Contractual relationships
Extracurricular activities, 63
Facility access review. See Program and facility access review
Facility accessibility, 8, 156, 160, 170-173. See also Existing
facilities;
New construction and alterations; Program accessibility
alterations to historic properties, 174. See also Historic
buildings
curb ramps, 173, (223)
differences between ADAAG and UFAS, 172-173
comparison of Title II and Section 504 requirements, 8, 156,
170-172
review of. See Program and facility access review
Facility Checklist, 180-182, (191-214)
Facility location, 77
FAPE. See Free appropriate public education
Federal agencies, 261-267
Federal Communications Commission, 267
Financial burden. See Undue burden
5-4-3 approach to compliance, 31-32
Flowchart, compliance, 46
FM broadcast systems, 234
Food handlers, 119
Formats. See Alternative formats; Auxiliary aids and services
Free appropriate public education, 5, 61-65, 227-228
due process safeguards, 64
evaluation, 63
overview of requirements, 62-65
placement, 62, 64, 227
related aids and services, 62, 227-228
Section 504 requirements, 5, 61
two-prong analysis, 64-65
Freight elevators, 164
Fundamental alteration, 165-166, 239
General nondiscrimination requirements, 61-96. See also
Communication; Employment; Free appropriate public education;
General prohibitions against discrimination; Program accessibility
General policies and practices review. See Nondiscrimination
policies and practices review
General prohibitions against discrimination, 23-24, _65-79
applicability, _65
application to FAPE, 61-65, 67, 68, 70, 71, 73, 75-76
associational discrimination, 23-24
examples, 23-24
basic equal opportunity requirements. See Basic equal
opportunity requirements
certification, 78
criteria or methods of administration, _76
denial of opportunity to participate or benefit, _66
examples, 66
effect of policies and practices, _76
eligibility criteria, _74-76
application to FAPE, 75-76
example, 76
general application, 74-75
example, 75
equally effective benefits or services, _68-69
examples, 68-69
exceeding the Title II requirements, 79
licenses or certification, 78
methods of administration, _76
procurement contracts, 78
example, 78
reasonable modification in policies, practices, and
procedures, 72-73
application to FAPE, 73
example, 73
general application, 72-73
example, 72-73
review of. See Nondiscrimination policies and practices
review
separate or different programs. See Basic equal opportunity
requirements
significant assistance to entities that discriminate, _77-78
example, 77-78
site selection, 77
smoking, 79
surcharges, 71-72
examples, 71
Government, state and local, 2, 3
Grievance procedures, _35-37, 257
comparison of Section 504 and Title II requirements for, 36
components of, 36
Health. See Direct threat to health and safety
Health insurance, 120-121, 133-134, (150)
Hearing disabilities. See Auxiliary aids and services; Communication
Hiring process, nondiscrimination in, 114-119. See also Employment
job advertisements and notices, 144
pre-employment inquiries, 114-115
testing, _115-116
examples of alternative test formats, 115-116
Historic buildings, 166-167, 174
alterations to, 174
historic preservation programs, 166-167
historic properties, 166
and Section 504, 167
nonstructural changes, 166-167
HIV disease, 119
IDEA, 21-22, 64
Identifying programs, 52-53, 82, 158
Illegal drug use, 27-28
examples, 28
* Print Page 275
Impairment, _12. See also Disability
examples, 12-13
person regarded as having an, _17
person with a record of, _17
temporary, 16-17
Implementation, 31-32, 39-40, 44-45, 47-53, (54-60), 81-83,
(84-95), 128-135, (136-154), 176-187,
(188-224), 241-245, (246-256). See also Compliance
of communication review, 241-245, (246-256)
of employment review, 128-135, (136-154)
of final transition plan, 187
5-4-3 approach, 31-32
of modifications, 44-45
of planning process, 47-53, (54-60)
of policies and practices review, 81-83, (84-95)
of program and facility access review, 176-187, (188-224)
schedule, 39-40
Inaccessible features. See Program accessibility; Facility
accessibility
Individual with a disability. See Disability
Individuals with Disabilities Education Act, 21-22, 64
Infectious and communicable diseases, 119
Information and signage. See Signage and information
Institutionalizing compliance, 42-43
Insurance, 120-121
International symbol of accessibility, _238
Interpreters, qualified. See Qualified interpreters
Interview, employment, 114-115
Involvement of persons with disabilities, 42, 49-50, 170, 187
Job Accommodation Network, 109-110
Job advertisements, 114, 132, (146-147)
Job applicants, limiting, segregating, or classifying, _120-123
insurance and other benefit plans, 120-121
other benefits and privileges, 121-122
Job applications, 114-115
Job descriptions, 103
Job interview, 114-115, 133, (148-149)
Job notices, 114
Job-related qualification standards, 112-113
Job restructuring, 105
example, 105
Job tests, 115-116, 133, (149)
Job-training programs, 124
Labor unions, 124
Large print, 231-232. See also Auxiliary aids and services;
Communication.
computer displays, 232
Lawsuits, 259
Leased space, 167-168. See also Program accessibility
Libraries, 213-214
Licenses and certification, 78
Lifts, (197)
Limiting job applicants. See Job applicants
List of departments/programs, 52-53, 82
Lobbies and corridors, (199-200)
Location, 77
Magnet schools, 158-159
Magnification devices, 233
Maintenance of accessible features, _174-175
temporary lack of accessibility, 174
example, 175
Major life activity, _13-17
of working, 15
substantial limitation of, 13-17
examples, 14-15
Medical examinations and inquiries, 116-119, 133, (149-150)
comparison to Section 504, 117-118
of current employees, 117-118
direct threat to health or safety, 118-119
example, 119
drug testing, 118
medical files, 118
post-offer, 116-117
example, 116-117
review of, 133, (149-150)
Mental illness. See Disability; Employment
Methods of administration, _76
Modification of policies and practices, 44-45
selecting and implementing modifications, 44-45
Modifications. See Program and facility access review;
Structural modifications
New construction and alterations, _170-174, _171. See also
Program accessibility
alterations to historic properties, 174
architectural accessibility standards and, 170-173, _171
example, 173
curb ramps, 173
under Title II, 170-171, 172
under Section 504, 171-172
Nonacademic and extracurricular activities, 63
Nondiscrimination policies and practices review, 81-83, (84-95)
assessing findings and documenting changes, 83, (85-86)
conducting the review, 82-83, (87-95)
defining the survey's scope, 82, (85-86)
documenting policies and practices, 82
identifying the subcommittee, 81, (84)
implementation of, 81-83, (84-95)
list of programs, activities, and services, 82
obtaining comments, 83
Nondiscrimination requirements. See General nondiscrimination
requirements
Nonstructural modifications. See Program and facility access
review, analyzing program access options
Notetakers, 226
Notice, 33-35, 44, 238
comparison of Section 504 and Title II requirements for, 33, 238
methods for providing, 34
sample, 34
Office for Civil Rights, 258, 260, 261-264
regional administrative offices, 262-263
Office of Special Education and Rehabilitative Services, 264-265
Opinion leaders, 49
Opportunities, 66-69
not equally effective, 68-69
unequal, 66-68
* Print Page 276
Optical character recognition, 232
Oral/aural communication, 233-235, 242, (248)
alternatives to, 233-235
review, 242, (248)
Orientation of ADA coordinator, 47-48
Overview of the ADA, 1-3
Parents, 159
Parking, (191)
Passenger loading zones, (192)
Pen and paper, 233
Person with a disability. See Disability; Impairment;
Involvement of persons with disabilities
Personal devices and services, 80-81
examples, 80
Personnel policies manual, 42, 134, 150-151
Phases of compliance, 43-46
flowchart, 46
Physical or mental impairment, 12. See also Disability
examples, 12-13
Placement (as part of FAPE), 62, 64, 227
Planning for compliance, 31-53, (54-60)
action steps. See Action steps
5-4-3 approach, 31
implementation of planning process, 47-53, (54-60)
developing an overview of programs, 52-53, (59-60)
orientation and start-up, 47-48, (54)
structuring and initiating the compliance process, 48-52,
(55-58)
overview of planning process, 31
phases of compliance, 43-46
flowchart, 46
principles of effective compliance, 41-43
Planning, preliminary, 43-44
Policies, practices, and procedures. See Communication; Employment;
General prohibitions against discrimination; Program accessibility
Post-offer inquiries, 116-117
Pre-employment inquiries, 114-115
Preliminary planning, 43-44
President's Committee on Employment of People with Disabilities,
267
Primary consideration, 228
Principles of effective compliance, 41-43
Procurement contracts, 78
Program accessibility, 8, _155-187, 188-224. See also Facility
accessibility
using back doors or freight elevators as a means of
providing, 164
carrying an individual as a means of providing, 164
in classroom buildings and support facilities, 158-159
example, 159
differences between Title II and Section 504 requirements, 8,
156
in existing facilities, 155-156, 157-170, _158
and architectural accessibility standards, 159-160
fundamental alteration/undue burden, 165-166
factors to be weighed, 165
in historic properties, 166-167
in leased space, 167-168
methods of compliance, 160-164
example, 162-163
nonstructural, 160-162
structural, 162-164
in new construction and alterations, 155-156, 170-174
overview, 155-157
program or activity, definition of, 158
at public events, 158-159
requirements, 155-175
review. See Program and facility access review
transition plan. See Transition plan
variety of disabilities and, 156-157, 163
Program and facility access review, 176-187, (188-224). See also
Structural modifications
analyzing program access options, 183-186
fundamental alteration/undue burden decisions, 185, (224)
long- and short-term costs, 185, (222)
nonstructural and structural solutions, 183-184, (219-222)
conducting the facility access review, 181-183, (191-214,
215-218)
ADAAG and, 181-182
Facility Checklist, (191-214)
what to bring, 181
flowchart, 177
implementation of, 176-187, (188-224)
preparing to conduct the review, 176, 178-181, (188-189)
coordinator and subcommittee, 178, (188)
orientation and training, 178-179, 181
participation of persons with disabilities, 179
review of programs, 179-180, (189)
schedule of self-evaluation, 181
subcommittee, 178, (188)
survey instruments, 180
Program listing, 52-53
Public accommodations, 2
Public employers. See Employment
Public entity. See Title II, covered public entity
Public events, 158-159, 228
Public schools. See Free appropriate public education; Title II
Qualification standards and selection criteria, _112-113
example, 113-114
Qualified individual with a disability, 15, 20, _21, 23, 100-101
in employment, 23, 100-_101
example, 101
parents, 22-23, 159
example, 23
persons attending school events or public events, 22
in services and programs, 21-23
students, 21-22
example, 22
Qualified interpreters, 107-108, _235-236
definition of, 235
examples, 107-108, 236
factors in weighing necessity of, 236
Qualified readers, 107-108
* Print Page 277
Raised letters. See Braille
Ramps, (195)
Readers, 107-108
Reasonable accommodation, _104-112
choosing the accommodation, 109-110
equipment or devices, 106-107
example, 107
examples of, 104-108
job restructuring, 105
example, 105
qualified readers and interpreters, providing, 107-108
example, 107-108
reassignment of employee to a vacant position, 105-106
example, 106
requirements, 104-112
review, 131-132, (142-145)
undue hardship, _110-112, 127
comparison of Section 504 and Title I definitions of, 110-111
example, 111
factors to be weighed, 110
work schedules, adjusting, 104-105
example, 104-105
worksite modification, 108
example, 108
Reasonable modification of policies, practices, and procedures.
See General prohibitions against discrimination
Recruitment, employee, 132, (146-151)
Rehabilitation Act of 1973. See Section 504 of Rehabilitation Act
Rehabilitation Act Amendments of 1992, 1
Related aids and services, 62, 227-228. See also Free
appropriate public education
and fundamental alteration/undue burden defense, 239
Relay service, 237. See also TDD; Telephone communication
Remedies, 259
Resources, 261-270
Responsible employee. See ADA coordinator
Rest rooms, (205-207)
Retaliation or coercion, _24, 126
examples, 24
Review. See Self-evaluation; Worksheets
Roads, 173
Rooms and spaces, (202-204)
Route of travel, (193-194)
Safety. See Direct threat to health and safety
Scanning print materials for Braille output, 232-233
Section 504 of Rehabilitation Act, 1, 2, 4, 5, 7-8, 21-22, 31,
33, 36-40, 42, 61, 98-99, 101-102, 156-158, 160, 164-165,
167-169, 170-172, 226-228
amendments, 1
communication, 8, 226-228
and complaint procedures, 36
definition of qualified individuals with disabilities, 21-22
effective dates, 38, 40
employment requirements, 7, 98-99, 101-102
and existing facilities, 156-158
and free appropriate public education, 5, 61
lessons learned from, 31, 37, 42
and new construction and alterations, 170-172
and notice requirement, 33
and program accessibility, 156-158, 160, 164-165, 167
relationship to Title I, 7
relationship to Title II, 40, 226-228
self-evaluation, 38
transition plan, 39, 168-169
Segregating job applicants. See Job applicants
Selection criteria, _112-113
example, 112-113
Self-evaluation, 37-_38, 44
action steps. See Action steps
communication. See Communication review
employment. See Employment review
general nondiscrimination requirements. See Non-discrimination
policies and practices review
program accessibility. See Program and facility access review
relationship between ADA and Section 504, 38
worksheets. See Worksheets
Separate or different programs. See Basic equal opportunity
requirements
Service contracts. See Contractors
Shower rooms, (208-209)
Significant assistance, 77-78
Sign language interpreters. See Qualified interpreters
Signage and information, _238
review, 243, (252)
Section 504 and, 238
Site selection, 77
Smoking, 79
Solutions. See Program and facility access review; Structural
modifications
Speech aids, electronic, 235
Speech synthesizers, 232, 235
Speech disabilities. See Auxiliary aids and services;
Communication, alternatives to aural/oral
Staff involvement, 241-242
Stairs, (196)
Standards, access. See Access standards; Existing facilities;
Facility accessibility
State and local government services, 2, 3
Strategies, communication, 244-245, (253-256)
Statement of commitment, 41
Structural communication features, 239-240. See also Auxiliary
aids and services; Signage and information
Structural modifications, 162-164, 186. See also Program and
facility access review
deadline, 164
timetable for, 186
Students. See Free appropriate public education
Subcommittees, 51, 81, 128-129, 178, 244. See also Communication;
Compliance team; Employment; General prohibitions against
discrimination; Program accessibility
communication, 241-242, 244, (246)
employment, 128-129, (136)
nondiscrimination policies and practices, 81, (84)
program accessibility, 178, (188)
Substantial limitation, 13-17
Substantially limited in working, 15
Surcharges, 71-72
* Print Page 278
Survey instrument, 180-182, (191-214)
Symbols of accessibility, 33, 35, 238
Tactile signage. See Braille
Tapes, 231-232
TDD (telecommunication device for the deaf), 226, 234, 236-238,
_237. See also Auxiliary aids and services; Telephone
communications
signage at, 238
training, 237
Telephone communications, 2, 234, 236-238, 243. See also TDD
amplified and hearing-aid-compatible telephones, 226, 234
emergency services, _237-238
direct access to, 238
relay service, 237
requirements, 234, _237
for new construction, 234
review, 243, (250-251)
Television programming, 235
Temporary impairments, 16-17
Testing, 115-116
Text telephone. See TDD
Three-phase compliance process, 43-46
Timelines for compliance, 39-40
Title I, 7, 97. See also Employment
relationship to Section 504, 7, 98-99
relationship to Title II, 7, 98
Title II, 2-9, 40, 226-228
covered activities, examples of, 3-4
covered public entities, 3-4
effective dates, 40
overview, 2
relationship to other laws, _4-7
relationship to Section 504, 4-6, 226-228
relationship to Title I, 7, 98
scope of, 3-4
subparts of, 6-9
communications, 8. See also Communication
compliance procedures, 9. See also Compliance
designated agencies, 9
employment, 7-8. See also Employment
general, 6
general requirements, 6-7. See also General nondiscrimination
requirements
program accessibility, 8. See also Program accessibility
subtitles of, 3
Title III, ADA, 2
Title IV, ADA, 2
Title V, ADA, 2-3
Toilet rooms, (205-207)
Training, 42, 45
Transition plan, _39-40, 44, _168-170, 186-187. See also Action
steps; Worksheets
contents of, 169-170
development of, three-step, 186-187
minimum requirements, 39
participation of persons with disabilities in, 170
relationship between Section 504 and Title II, 39, 169-170
scope of, 169
timeline for completing, 39-40, 168, 170
Transportation,
TTY. See TDD
UFAS (Uniform Federal Accessibility Standards), compared with
ADAAG, 172-173
Undue burden, _165-166, 239
factors to be weighed, 165
and provision of FAPE, 239
Undue hardship, _110-112, 127
Unequal opportunity to benefit, 66-68
U.S. citizenship, 29
U.S. Department of Education, 258, 261-265. See also Office for
Civil Rights
U.S. Department of Health and Human Services, 119
U.S. Department of Housing and Urban Development, 266
U.S. Department of Justice, 258, 265
U.S. Equal Employment Opportunity Commission, 98, 259-260, 265-266
Use of alcohol, 29
Videotapes, 235
Visual communication, 231-233, 242, (247)
alternatives to, 231-233
review, 242, (247)
Voice output, 232
Visual disabilities. See Auxiliary aids and services;
Communication, alternatives to visual information
Walkways, 173
Work schedules, adjusting, 104-105
examples, 104-105
Worksheets, 47-53, (54-60), 81-83, (84-95), 128-135, (136-154,)
176-187, (188-224,) 241-245, (246-256)
communication, 241-245, (246-256)
conducting the planning process, 47-53, (54-60)
employment, 128-135, (136-154)
nondiscrimination policies and practices, 81-83, (84-95)
program accessibility, 176-187, (188-224)
transition plan, 186-187, (219-220, 222-224)
Work site modification, 108-109
example, 108
THE END
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