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