General Administrative Requirements 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 Republican and Democratic legislators, people with disabilities, and concerned citizens. It is the most comprehensive formulation of the rights of people with disabilities in the history of the United States or of any other nation. Related laws that affect public school systems include Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Individuals with Disabilities Education Act (IDEA). This briefing focuses primarily on the ADA. Title II of the ADA prohibits discrimination on the basis of disability by public entities such as public school systems. Title II requires that public entities - including school systems - examine their programs and establish a plan for ensuring compliance with the law. What Steps are Required to Comply with the ADA? STEP ONE: Designate a Responsible Employee Under Title II, public entities 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" and this briefing sheet uses the term "ADA coordinator." It is recommended that school systems, regardless of size, designate a person to coordinate compliance activities. School districts that are subject to Section 504 and employ fifteen or more people 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. The ADA coordinator is key in ensuring ADA compliance. The coordinator's role includes planning and coordinating compliance efforts, ensuring the administrative steps are completed, and receiving and investigating disability discrimination complaints. To fulfill the job, the coordinator must have the authority, knowledge, skills and motivation to implement the regulations. To ensure that individuals can identify the ADA coordinator, the school system must provide the ADA coordinator's name, office address, and telephone number.[28 C.F.R.§35.107(a)]. Notice of the identity of the ADA coordinator is generally combined with notice of ADA requirements-the next step. STEP TWO: Provide Notice of ADA Requirements All public entities, regardless of size, must provide information to applicants, participants, beneficiaries, employees, and other interested people regarding the rights and protections afforded by Title II, including how the Title II requirements apply to its programs, services, and activities [28 C.F.R.§35.106]. There are similarities and differences between the Title II and Section 504 notice requirements. Under the Section 504 regulation a recipient of federal financial assistance that employs 15 or more people must provide a notice that states 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)]. The notice must identify 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 more specific notice requirements under Section 504, if the recipient has 15 or more employees. The school system must provide this information not just once, but on an ongoing basis [28 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 school system's programs and activities; the display of informative posters in public places; or the broadcast of information by television and radio. Here is a sample notice consistent with the Title II and Section 504 requirement. 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 the operations. The [school system] 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 coordinator: Name and Title: Office Address: Phone Number (Voice/TTY): Days/Hours Available: This notice is available from the ADA and Section 504 coordinator in large print, on audio tape, and in Braille. If additional alternate formats are available, such as computer bulletin boards, school districts may state that this notice is available in the additional formats. Notices should be accessible to people with various disabilities. Information should be available to people with mobility impairments. The school system must be prepared to provide notices in alternate formats upon request. Examples of alternate formats include radio reading services, large print (15 point font or larger), audiocassettes, Braille and captioning. STEP THREE: Establish a Grievance Procedure Many public school systems think the grievance procedure applies only to employees. Not so! The grievance procedure should provide timely resolution of all ADA problems or conflicts before the complainant resorts to litigation or the federal complaint process. The Title II regulation requires the ADA coordinator to oversee the investigation and resolution of complaints [28 C.F.R.§35.107(a)]. The public entity may use a grievance procedure that is already in place; it is not necessary to design a separate process 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 grievance procedures requirements. 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. The Section 504 requirements apply to recipients with fifteen or more employees, while the ADA 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)]. Unlike the Title II regulation, the Section 504 regulation 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 employment applicants [34 C.F.R.§104.7(b)]. This briefing sheet recommends that a grievance procedure include the following: * a 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; * written records of 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 part of the alleged discrimination. 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 policies and practices. Through the self-evaluation, the public entity must: * identify policies or practices that do not comply with the Title II requirements; and * modify policies and practices to bring them into compliance. The self-evaluation must address general nondiscrimination requirements, including the obligation to provide a free appropriate public education (FAPE) to students with disabilities, employment, program accessibility, and communications. If the school system conducted a self-evaluation as required by Section 504, the school is only required to: * review programs established since the Section 504 self-evaluation was conducted; and * review new or modified policies or practices that were not included in an earlier self-evaluation [28 C.F.R.§35.105(c)]. Because most Section 504 self-evaluations were done years ago, most 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. (An example of such an area of change is computers, a significant part of current services and programs.) Many Section 504 self-evaluations focused on access to facilities, with limited attention to the ADA's requirement to provide equally effective communications for people with disabilities. School systems must 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 128 C.F.R.§35.105(b). Public school systems that employ 50 or more people must maintain the self-evaluation and make it available for public inspection for at least three years from the date it is completed (28 C.F.R.§35.105(c)). This is the ADA coordinator's responsibility. Records must identify who participated in the evaluation, the areas examined, problems discovered, and corrections made 28 C.F.R.§35.105). STEP FIVE: Develop a Transition Plan Under Title II, public school districts that employ 50 or more people are required to develop a transition plan when structural changes to existing facilities are necessary to make programs, services, or activities accessible to people with disabilities [28 C.F.R.§35.150(d)(1)]. The transition plan must: ( identify physical obstacles in facilities that limit the accessibility of the it's programs, services, or activities to people with disabilities; ( 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 official responsible for implementing the transition plan [28 C.F.R.§35.150(d)(3)]. The Title II transition plan is required for programs and policies that were not included in a Section 504 transition plan [28 C.F.R.§35.150(d)(4)]. The Title II transition plan was to have been developed by July 26, 1992 [28 C.F.R.§35. l50(d)(l)]. Nonstructural changes should have been implemented immediately. Any structural changes outlined in the transition plan were to have been completed as expeditiously as possible, but no later than January 26, 1995 [28 C.F.R.§35.l5O(c)]. Why do These Requirements Sound Familiar? The ADA is the most recent of three disability rights laws pertinent to school systems, the others being Section 504 of the Rehabilitation Act of 1973, as amended, and the Individuals with Disabilities Education Act (originally the Education for All Handicapped Children Act of 1975). Section 504 is a civil rights act that protects people with disabilities in programs that receive federal financial assistance. Much of what schools are required to do under the ADA has already been required under Section 504. However, Title II of the ADA covers all state or local government entities regardless of whether they receive federal funding. The IDEA is a program funding law that mandates that children with disabilities who are in need of special education receive a free, appropriate public education (FAPE) in the least restrictive environment. A Comparison of Requirements of Disabilities Statutes Affecting Public Schools, a chart of the three laws, is available from the ADA National Access for Public Schools Project (see Resource Section). The ADA is the most inclusive of the three laws. The ADA protects the following: children/students with disabilities, parents with disabilities, job applicants/employees with disabilities, members of the public with disabilities, associates of people with disabilities, individuals with a record of disability, and individuals treated as if they had disabilities. Section 504 protects all the same people with respect to programs and activities that receive federal funding except associates of people with disabilities. The IDEA ensures the availability of FAPE to children considered to have disabilities under the IDEA who need special education and related services. The following section provides more detail about who is entitled to protection under the ADA. Who is a Person with a Disability? The ADA uses a three-pronged definition of disability. A person with a disability is an individual who meets any of the three conditions outlined in the statute and cited below. This definition is essentially the same as the definition in Section 504. The term disability means, with respect to an individual - * a physical or mental impairment that substantially limits one or more of the major life activities of such individual; * a record of such an impairment; or * being regarded as having such an impairment. 42 U.S.C.§12102(2) The First "Prong": Persons with Physical or Mental Impairments The first prong of the definition covers people who currently have physical or mental impairments that substantially limit one or more major life activities. Physical or mental impairment include physiological conditions that affect body systems as well as mental or psychological disorders. Conditions that are not impairments include simple physical characteristics such as left-handedness, skin color, or age, or uncomplicated pregnancy. Disadvantages attributable to environmental, cultural, or economic factors are not covered by the ADA. The definition does not include personality traits such as poor judgment or a quick temper, where these are not symptoms of a mental or psychological disorder. An impairment must substantially limit a major life activity to constitute a disability. 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]. 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. The Second "Prong": Persons with Records of Physical or Mental Impairments that Substantially Limit a Major Life Activity The second prong protects people who have a history or record of an impairment that substantially limited a major life activity. It also includes people who have been misclassified as having an impairment. The Third "Prong": Persons Regarded as Having a Substantially Limiting Impairment The third prong protects people who are not substantially limited in a major life activity but are 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 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. What Does It Mean to be Qualified? Protection under Title II is afforded to qualified individuals with disabilities. Not every person with a disability (someone who falls within the three-prong definition) is also "qualified." For purposes of determining whether an individual is eligible to participate in the services and programs offered by a school system, 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. 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 definition established under Section 504: A "qualified" student with a disability means: * a person with a disability who is of an age during which non-disabled persons are provided education; * a person with a disability who is of any age during which it is mandatory under state law to provide elementary or secondary educational service to persons with disabilities; or * a person with a disability to whom a state is required to provide a free appropriate public education under the IDEA. For the purposes of employment an individual is considered to be qualified if the person satisfies the requisite skill, experience, and education and other job-related requirements for the job and can perform the essential functions of the job, with or without reasonable accommodation [29 C.F.R,§1630.2(m). What is "Associational" Discrimination? The ADA extends protections to people who do not have disabilities 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.§ 35.13O(g); 29 C.F.R.§1630.8]. A person who experiences associational discrimination has a right to relief under the ADA, but is not, like persons who have disabilities, entitled to receive reasonable accommodations in employment, a free appropriate public education, or auxiliary aids and services. What Conditions are Excluded from Consideration as Disabilities? Title II 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. The phrase "physical or mental impairment" does not include homosexuality or bisexuality; those orientations are not considered impairments. [28 C.F.R.§35.104]. Illegal use of drugs is not protected. Although an individual addicted to drugs may be an individual with a disability, people who are currently engaging in the illegal use of drugs are not protected by the ADA. 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. 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 non-disabled students. The due process procedures described in Section 504 do not apply to such disciplinary actions. For More Information Disability and Business Technical Assistance Centers (DBTACs) distribute ADA regulations and other material and offer technical assistance on all aspects of the ADA * 800-949-4232 voice/TTY * www.adata.org The U.S. Department of Education's Office for Civil rights offers technical assistance regarding the requirements of Section 504 and Title II of the ADA * 800-421-3481 * www.ed.gov/offices/OCR The U.S.Department of Justice offers technical assistance on Title II and Title III of the ADA and distributes those regulations and other ADA publications. * 800-514-0301 voice or 800-514-0383 TTY * www.usdoj.gov/crt/ada/adahom1.html The Equal Employment Opportunity Commission offers technical assistance, regulations and other publications on ADA employment provisions. * 800-669-4000 voice or 800-669-6820 TTY * www.eeoc.gov Resources * Compliance with the Americans With Disabilities Act: A Self-Evaluation Guide for Public Elementary and Secondary Schools ($21) * The ADA and Public Schools: Access for All - 18 minute video ($35) Both are available from the ADA National Access to Schools Project. See contact information above. * Free Appropriate Public Education for Students with Disabilities * Student Placement in Elementary and Secondary Schools & Section 504 and Title II of the Americans with Disabilities Act * The Civil Rights of Students with Hidden Disabilities Under Section 504 of the Rehabilitation Act of 1973 The pamphlets are available from the U.S. Department of Education's Office for Civil Rights 800-421-3481 or www.ed.gov/offices/OCR. 9