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- * Print Page iii 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 * Print Page 5 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. * Print Page 6 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"). * Print Page 8 __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. * Print Page 9 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, * Print Page 16 __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. * Print Page 38 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. * Print Page 40 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. * Print Page 47 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.) * Print Page 52 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. * Print Page 54 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: ---- * Print Page 55 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. * Print Page 56 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. * Print Page 57 (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. * Print Page 58 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). * Print Page 59 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. * Print Page 60 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. * Print Page 61 ** 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 * Print Page 63 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). * Print Page 64 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: * Print Page 65 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, * Print Page 68 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 * Print Page 69 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, * Print Page 70 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. * Print Page 71 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 * Print Page 72 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 * Print Page 73 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. * Print Page 74 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 * Print Page 75 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 * Print Page 76 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)]. * Print Page 77 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. * Print Page 78 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. * Print Page 79 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. * Print Page 80 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. * Print Page 81 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. * Print Page 82 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 * Print Page 101 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 * Print Page 103 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 * Print Page 105 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. * Print Page 107 -- 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 * Print Page 108 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 * Print Page 109 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 * Print Page 110 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 * Print Page 111 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. * Print Page 114 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. * Print Page 127 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 * Print Page 151 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. * Print Page 165 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)]. * Print Page 166 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. * Print Page 171 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 w