PROGRAM ACCESSIBILITY Public school systems must ensure that programs, services, and activities are accessible to and usable by individuals with disabilities. Ensuring program accessibility is an important aspect of enhancing opportunity for people with disabilities. Both Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 prohibit public school systems from denying people with disabilities equal opportunity to participate in programs, services, and activities because school facilities are either inaccessible to them or unusable by them [28 C.F.R.§35.149 and 34 C.F.R.§104.21]. Both regulations contain two standards to be used in determining whether a covered entity's programs, activities, and services are accessible to individuals with disabilities. One standard deals with new construction and alterations; the other deals with "existing" facilities. This briefing sheet focuses primarily on existing facilities. WHAT ARE THE BASIC REQUIREMENTS FOR EXISTING FACILITIES? For existing facilities, Title II and Section 504 require covered entities to operate each program so that, when viewed in its entirety, the program is readily accessible to and usable by people with disabilities [28 C.F.R.§35.150(a) and 34 C.F.R.§104.22(a)].This is known as the program accessibility standard, and it is one of the most important concepts in compliance planning. A covered entity must make its programs and activities accessible unless it can demonstrate that required modifications would result in a fundamental alteration of the program or in undue financial and administrative burdens. WHAT ARE THE REQUIREMENTS FOR NEW OR ALTERED FACILITIES? Both Title II and Section 504 require that a new or altered facility (or the part that is new or altered) be readily accessible to and usable by individuals with disabilities [28 C.F.R.§35.151and 34 C.F.R.§104.23]. There is no fundamental alteration or undue burden limitation on the new construction and alterations requirements. Public school systems have a choice of using either the Uniform Federal Accessibility Standards or the ADA Standards for Accessible Design without the elevator exemption in designing, constructing, or altering facilities on or after January 26, 1992 [28 C.F.R.§35.151(c)]. (Note: In the first years of 21st century the regulations may change to eliminate the Uniform Federal Accessibility Standards as an option.] WHAT IS MEANT BY A "PROGRAM OR ACTIVITY"? Under Title II and Section 504, the term "program or activity" embraces the programs, activities, and services offered by a covered entity in fulfillment of its mission. The following are programs or activities that, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities: academic programs, food services, library services, health services, counseling, physical education, athletics, recreation, transportation, extracurricular activities, including school clubs and other after-school activities, as well as plays, concerts, or other performances open to the public, parent-teacher organization activities, graduation ceremonies, vocational programs, apprenticeship programs, and employer recruitment opportunities. This list is not exhaustive. WHAT DOES THE PROGRAM "VIEWED IN ITS ENTIRETY" MEAN? To understand the concept of viewing programs or activities offered in existing facilities "in their entirety," the following presents the application of the program accessibility standard for existing facilities to classroom buildings, programs and activities open to students, parents or to the public. With respect to existing facilities, school systems should provide for access to students with disabilities at schools dispersed throughout their service area so that these students can attend school at locations comparable in convenience to those available to students without disabilities. School districts do not have to make all of their existing classroom buildings accessible to students with disabilities, provided that all programs offered in inaccessible classroom buildings are also available in other accessible schools in the district, and that the accessible schools are comparable in convenience to those available to students without disabilities. School districts may not make only one facility or part of a facility accessible if the result is to segregate students with disabilities in a single setting. Where "magnet" schools, or schools offering different curricula or instruction techniques, are available, the range of choice provided to students with disabilities must be comparable to that offered to students without disabilities. This view of looking at programs in their entirety is the approach Title II and Section 504 take toward such support facilities as rest rooms, water fountains, and parking spaces in existing facilities. Sufficient numbers of these accessible elements should exist that are reasonably convenient, usable in inclement weather, and appropriate to the use of a facility. Usage of the building is an important factor in addressing program accessibility concerns such as the number of rest rooms and drinking fountains required. Buildings in which an individual may spend extended periods of time should meet a higher degree of accessibility than those in which an individual spends relatively short periods of time. Example: Is this school system's program, taken as a whole, accessible to persons with disabilities? There are six elementary school buildings in a school district, of which four are one-story and two are two-story. The two-story buildings were constructed in 1958 and 1960, respectively, and are not physically accessible to persons with mobility impairments. All programs offered in the two-story buildings are available in the four other elementary schools, which are readily accessible to and usable by persons with disabilities. Special planning was done so that persons with disabilities can participate in all programs and activities. The amount of travel time from the homes of persons with disabilities to the accessible schools is comparable to the amount of time traveled by other children without disabilities within the school district of the same age. The school district is in compliance with Section 504 and Title II. DOES THE PROGRAM ACCESSIBILITY STANDARD APPLY ONLY TO STUDENTS? Public school systems must ensure that their programs are accessible to parents, guardians, and members of the public with disabilities as well as to students. This requirement includes all programs, activities, or services that are open to parents or to the public, such as parent-teacher organization meetings, plays, and graduation ceremonies. With respect to existing facilities, school districts may satisfy their obligations to make programs accessible to parents who have disabilities by reassigning their child to a school facility that is accessible. DOES THE SCHOOL DISTRICT HAVE TO MAKE STRUCTURAL CHANGES TO EXISTING BUILDINGS TO MAKE PROGRAMS ACCESSIBLE? Although the program accessibility standard is a rigorous one, both the Title II and Section 504 regulations permit flexibility in how the standard can be met. Both structural and nonstructural methods of achieving program accessibility are acceptable. Although nonstructural methods of achieving program accessibility are acceptable, they should not have the effect of segregating people with disabilities or compromising their dignity and independence. Priority must be given to offering programs or activities in the most integrated setting appropriate [28 C.F.R.§35.150(b)(1) and 34 C.F.R.§104.22(b)]. If no effective nonstructural alternatives can be provided to achieve program accessibility, public school systems must make the necessary structural changes [28 C.F.R.§35.150(b)(1) and 34 C.F.R.§104.22(b)]. These changes must conform to new construction and alterations. Standards. HOW CAN PROGRAMS BE MADE ACCESSIBLE? 1. Reassignment of services to an accessible location. The relocation of programs and activities to accessible locations is one method of making programs and activities accessible. For example, classes or activities can be relocated to accessible ground-level floors within a building or reassigned to other buildings that are accessible [28 C.F.R.§35.150(b)(1) and 34 C.F.R.§104.22(b)]. 2. Purchase, redesign, or relocation of equipment. Other methods of making programs accessible include the purchase, redesign, or relocation of equipment [28 C.F.R.§35.150(b)(1) and 34 C.F.R.§104.22(b)]. "Equipment" includes items that generally make the building functional as well as items that are integral to participation in specific programs, activities, or services, such as work stations, study carrels, and machinery. 3. Assignment of aides. In some circumstances, aides may be assigned to perform tasks that will enable persons with disabilities to participate in programs [28 C.F.R.§35.150(b)(1) and 34 C.F.R.§104.22(b)]. For example, aides may be required to ensure that persons with disabilities exit safely in emergencies. 4. Structural changes to eliminate barriers. Although structural changes to make existing facilities accessible are not required as a matter of course, they must be undertaken if there is no alternative means to achieve program accessibility [28 C.F.R.§35.150(b)(1) and 34 C.F.R.§104.22(b)]. Structural changes include such alterations as installing a ramp, widening a doorway, or lowering a toilet. Structural changes include not only those required to provide access to persons with mobility impairments, but also those required to render the program accessible to persons with other disabilities. For example, people with hearing impairments may require assistive listening systems. The full range of disabilities should be kept in mind as program accessibility is considered. WHAT IS AN "EXISTING FACILITY"? Under Title II, an existing facility includes facilities that were already constructed, or for which ground-breaking had begun, prior to the effective date of the Title II regulation (January 26, 1992). Under the Section 504 regulation for federally assisted programs, an existing facility is defined as any facility that was already constructed, or for which ground-breaking had begun, prior to the effective date of the Section 504 regulation (June 3, 1977). Depending on the date of construction, some facilities may be existing facilities for purposes of Title II but new construction under the Section 504 regulation. These include buildings constructed on or after June 3, 1977, but before January 26, 1992. In these cases, school systems required to comply with both the Title II and the Section 504 regulations must meet not only the standards for existing facilities under Title II, but also the applicable facility accessibility standards for new construction and alterations under Section 504. WHAT ABOUT THE DEADLINE FOR MAKING STRUCTURAL CHANGES? Under Title II, any needed structural changes were to have been completed as soon as possible, but no later than January 26, 1995 [28 C.F.R.§35.150(c)]. By July 26, 1992, public entities that employ 50 or more persons were required to have developed a transition plan that sets forth the steps necessary to make structural changes [28 C.F.R.§35.150(d)(1)]. School districts are in violation of Section 504 and the ADA if they have not made structural changes that are required to ensure program accessibility. ARE THERE EXCEPTIONS? The Title II regulation does not require a public entity to take any action that would result in a fundamental alteration in the nature of its service, program, or activity or in undue financial and administrative burdens [28 C.F.R.§?35.150(a)(3)]. This provision codifies case law interpreting the Section 504 regulation for federally assisted programs. Compliance with the Title II program accessibility provisions will not generally result in an undue financial or administrative burden [28 C.F.R.§35.150(a)(3) (Preamble)]. Individuals with disabilities should have access to public entities' programs in all but the most unusual situations. When a school district does justify noncompliance by claiming that compliance would result in a "fundamental alteration" to its program or constitute an "undue burden," the Title II regulation places the burden of proof on the school district [28 C.F.R.§35.150(a)(3)]. A decision regarding whether a burden is undue must be based on all of the public entity's resources available for use in the funding and operation of the service, program, or activity [28 C.F.R.§35.150(a)(3)]. Miscellaneous The following questions were asked at workshops or over the ADA National Access for Public Schools hotline. The answers were either written or reviewed by the Office for Civil Rights at the U.S. Department of Education. 1. Q: For existing facilities, Title II and Section 504 require school districts to operate each program so that, when viewed in its entirety, the program is readily accessible to and usable by people with disabilities. School districts do not have to make all of their existing classroom buildings accessible to students with disabilities, provided that all programs offered in inaccessible classroom buildings are also available in other accessible schools in the district, and that the accessible schools are comparable in convenience to those available to students without disabilities. Is this requirement inconsistent with the requirements of Section 504 and the IDEA that specify that all students with disabilities be educated in the least restrictive environment? Is this requirement inconsistent with efforts to provide services to students with disabilities in the schools nearest their homes? A: The program accessibility and least restrictive environment requirements of Title II and Section 504 do not conflict. For students with disabilities, school districts must review the students' individual needs and devise programs to meet those needs. Accessibility considerations may not be factored into the determination of whether a student needs a restrictive or non-restrictive placement. Once a particular placement has been agreed to, the school district must ensure that the student has access to the programs that are part of the student's placement. As for providing services at the school nearest a student's home, there is no such explicit requirement in Section 504 or Title II. However, if a school district did adopt a specific policy that students will attend school at their "home" school, but then denied participation to students with disabilities, there might be a violation of the law. 2. Q: A three-story elementary school building was constructed in 1956. The primary entrance, the gymnasium, the cafeteria, the administrative offices, and the library were altered and made accessible to and usable by persons with disabilities. Classrooms, restrooms, and drinking fountains on the ground level floor of the building were also altered, making the ground-level floor of the building accessible to and usable by persons with disabilities. However, no alterations were made on the second or third floors, and the building has no elevator. The sixth grade classrooms are located on the third floor. A student who uses a wheelchair enrolls as a sixth grade student. Because the school building is an existing facility, the programs and activities at the school, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities. One way of ensuring that the sixth grade program is accessible to the student who uses a wheelchair is to relocate the sixth grade class that the student will attend to the first floor. However, if a sixth grade classroom is relocated to the first floor, the whole class will be surrounded by first and second grade students and students will have fewer opportunities to interact with their peers. What should the school do? A: The school may want to consider moving another sixth grade class, and possibly some fifth grade classes, down to the first floor. In this way, the students in the class with the student who uses a wheelchair will not feel isolated or singled out. 4. Q: May a school system select an inaccessible existing facility for a program or activity if the school system assures program accessibility? A: School districts may not use policies or practices that cause qualified individuals with disabilities to be denied an equal opportunity to participate in a program or to benefit on an equal basis under the program. In general, a school district may select an inaccessible existing facility for a program or activity if the district can ensure that program accessibility will be provided. For existing facilities, Title II and Section 504 require school districts to operate each program so that, when viewed in its entirety, the program is readily accessible to and usable by individuals with disabilities. Acceptable methods of making programs accessible include: reassignment of services to an accessible location; the purchase, redesign, or relocation of equipment; assignment of aides; and structural changes to eliminate barriers. 5. Q: May a school district lease an inaccessible facility and provide program accessibility by moving the program in the facility to an accessible location or by other means when the need arises? A: School systems are encouraged, but not required, to lease accessible space. However, once a leased facility is occupied, the school system must provide access to all programs, activities and services provided in that space. Leased facilities are subject to the program accessibility requirements for existing facilities or new construction and alterations, depending upon the date that the buildings were constructed or altered. School districts are in compliance with Title II and Section 504 if program accessibility is provided in leased facilities that are existing facilities. Acceptable methods of making programs accessible include: reassignment of services to an accessible location; purchase, redesign, or relocation of equipment; assignment of aides; and structural changes to eliminate barriers. School districts are not in compliance with Title II and Section 504 if only program accessibility is provided in leased facilities that are new construction or alterations. Leased facilities that are new construction or alterations must be readily accessible to and usable by individuals with disabilities. 6. Q: A town has one high school which was built in 1972. The school's parking lots were also constructed in 1972. The school has four separate parking lots with a total of 500 spaces. During the day the lots are used by staff and students. At night the lots are used by visitors attending meetings, by individuals participating in adult education programs, and by individuals attending other events that are open to parents or to the public. How many spaces are required to be accessible? May all the accessible spaces be in one lot or do they need to be in each of the four lots? A: Under Section 504 and Title II, with respect to existing facilities, there should be sufficient accessible parking spaces available that are reasonably convenient, usable in inclement weather, and appropriate to the use of a facility. Because they only need to meet the Section 504 and Title II requirements for existing facilities, the parking lots are not required to be in compliance with any specific accessibility standards. However, facility accessibility standards such as the Americans with Disabilities Act Accessibility Guidelines (ADAAG) and the Uniform Federal Accessibility Standards (UFAS) may be used as a guide to understanding whether individuals with disabilities have access to the parking lots. ADAAG and UFAS both indicate that, with respect to new construction, parking lots with 500 spaces should have at least nine accessible parking spaces. Because the parking lots in question are used by students, staff, parents, and members of the public, there should in fact be approximately nine accessible spaces. Because they only need to meet the Section 504 and Title II requirements for existing facilities, there is no specific requirement that the accessible parking spaces be in all four parking lots. However, in order that the accessible parking spaces be reasonably convenient, usable in inclement weather, and appropriate to the use of the facility, the accessible parking spaces should be as close as possible to an accessible entrance to the high school. 7. Q: A student who uses a wheelchair moves into a new town. The school district's only high school is not accessible to individuals who use wheelchairs. The district proposes to transport the student to an accessible school in a neighboring district. Is this arrangement allowed under Section 504 and Title II ? A: Under Section 504 and Title II, the school district's high school may not be inaccessible to individuals who use wheelchairs. The school district may not meet its program accessibility obligation by sending students with disabilities to an accessible school in a neighboring district. If the high school is an existing facility, programs and activities at the high school must comply with the program accessibility requirements for existing facilities. If the high school is a new construction, it would have to be in compliance with the new construction standards. 8. Q: A public school was constructed in 1969. It has a sports field with bleachers. Is the school required to make the bleachers accessible to people with physical disabilities or may the school seat individuals with disabilities and friends or relatives accompanying them on the side of the bleachers ? A: Since the bleachers were constructed prior to June 3, 1977, they would be considered existing facilities under both Section 504 and Title II. Under Section 504 and Title II requirements for existing facilities, the program or activity served by the playing field and the bleachers, when viewed in its entirety, must be readily accessible to individuals with disabilities. The seating for people with disabilities must be comparable with other seating in terms of safety and line of vision. With respect to weather conditions, people with disabilities must also be able to participate in all programs served by the bleachers that people without disabilities participate in. Depending upon the individual facts involved, it may indeed be acceptable for people with disabilities and their friends or relatives to sit in front of the bleachers or on the side. 9. Q: A high school has a library located on the third floor. The building was constructed prior to 1977 and would therefore be considered an existing facility under both Title II of the ADA and Section 504 of the Rehabilitation Act of 1973. The first floor of the building is accessible to individuals with mobility impairments, but the second and third floors of the building are inaccessible. All of the computer resources available in the library, including a computerized catalogue, are also located on the accessible ground floor. Aides retrieve books, magazines, and other materials from the library for students with mobility impairments. If an individual with a mobility impairment will be attending a library program or activity, the program or activity is relocated to the ground floor. Is the high school providing program accessibility with respect to its library services? A: Since the library is part of an existing facility, the library itself would not have to be readily accessible to and usable by individuals with disabilities. Because the library is part of an existing facility, the library's services, programs, and activities, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities. Individuals with disabilities must have access to services, programs, and activities offered by the library. Both nonstructural and structural methods of achieving program accessibility are acceptable. Nonstructural methods include the assignment of aides and the delivery of services at alternate accessible locations. However, if no effective nonstructural methods can be provided to achieve program accessibility, structural changes must be undertaken. This school district would be in compliance with the program accessibility requirements of Title II and Section 504 as long as the different means that are being used to try to provide program accessibility do in fact provide access to the library's different services, programs, and activities and as long as the computer resources and the aides are available during the operating hours of the library. Q: What is the responsibility of a school district in situations where children in the district attend a parochial school that is not physically accessible and some federal funds (i.e., Title I funds) are channeled through the school district to the parochial school? A: The school district must only make certain that the programs in the parochial school that are receiving federal funds through the district are accessible to individuals with disabilities. This may mean making sure that the programs are relocated to an accessible building or that structural modifications are made so that the programs are accessible to individuals with disabilities. However, if the programs at the parochial school receiving federal funds through the district are not made accessible to individuals with disabilities, the school district must discontinue providing federal funds to the parochial school. 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. 13 13