CHAPTER FOUR GENERAL NONDISCRIMINATION REQUIREMENTS

Call 1-800-949-4ADA
for Technical Assistance

General Nondiscrimination Requirements

Print Page 61
* CHAPTER FOUR GENERAL NONDISCRIMINATION REQUIREMENTS

Chapter Four describes general nondiscrimination requirements that should be used to analyze whether the programs, policies, and practices of a public school system comply with Title II. These requirements apply to all operations, services, benefits, programs, and activities of a school district.

As we have noted, the more specific requirements imposed on a school district under Section 504 are applicable under Title II wherever necessary to ensure that Title II is interpreted in a way that is consistent with the intent of the ADA (see Chapter One). The obligations of a school district, specifically described under Section 504, to provide a free appropriate public education (FAPE) to school-age individuals with disabilities, regardless of the nature or severity of their disabilities, are incorporated in the general provisions of Title II that are discussed in this chapter [28 C.F.R. ? 35.130; 28 C.F.R. ? 35.103(a); see 34 C.F.R. ? 104.31-104.37]. Therefore, as a school district evaluates its compliance with the general prohibitions against discrimination, it must consider the specific issues that govern the provision of appropriate educational services to school-age individuals with disabilities (FAPE); these specific requirements must be addressed separately from those pertinent to services provided to other individuals with disabilities (such as parents and the general public). Throughout the chapter, we will point out areas in which a two-prong analysis will be appropriate.

Chapter Four begins with an overview of the requirements for ensuring FAPE for school-age individuals with disabilities that are part of the general prohibitions section of Title II. Because school districts have been implementing these requirements for many years, the purpose of this overview is to establish a frame of reference within which the general prohibitions of Title II may be considered, rather than to discuss FAPE requirements in a comprehensive manner.

The chapter then reviews each of the requirements of the regulation in sequence. Among major topics addressed in the chapter are the applicability of the regulation; its basic equal opportunity requirements; the obligation to make reasonable modifications in policies, practices, and procedures; and eligibility requirements.

The chapter concludes with worksheets designed to assist school systems in their self-evaluation of policies and practices. Two survey instruments are provided, one of which deals with issues related to FAPE and one of which deals with nondiscrimination

* Print Page 62

requirements pertinent to a broader range of constituents (such as parents and members of the general public).

OVERVIEW OF FAPE REQUIREMENTS THAT ARE INCORPORATED IN GENERAL PROHIBITIONS

Provision of FAPE requires a school district to provide regular or special education and related aids or services that are: (1) designed to meet the individual needs of persons with disabilities as adequately as the needs of nondisabled persons are met; and (2) able to satisfy requirements, outlined below, regarding educational setting, evaluation and placement, and due process safeguards. Examples of related aids and services that may be provided to individuals with disabilities in either regular or special education programs include: interpreters for students with hearing impairments; readers for students with visual impairments; equipment and equipment modifications to accommodate the needs of students with mobility impairments, manual impairments, hearing impairments, or visual impairments; speech therapy; psychological services; physical and occupational therapy; school health services; or school social work services.

A school district must provide an appropriate public education to a person with a disability without cost to the person or to his or her parents or guardians, except for those fees that are also imposed on nondisabled persons or their parents or guardians.

FAPE requirements also govern the selection of educational settings for school-age individuals with disabilities. As discussed on [print] pages 63-64, while a placement team can select a placement for a student with a disability from a range of options, the placement team must ensure that the selected placement provides for the student's education with nondisabled students to the maximum extent appropriate to the needs of that student. A school district must place an individual with a disability in the regular educational environment operated by the school district unless the school district shows that, even with the use of supplementary aids and services, the individual's education cannot be achieved satisfactorily in that setting.

Depending on the needs of an individual child, an appropriate education may consist of education in regular classes, education in regular classes with the use of supplementary services, or special education and related services. If a school district is unable to provide a child with a disability with an appropriate education, and the district places the child or refers the child to a program it does not operate, the district is still responsible for ensuring that the education offered is in compliance with all requirements related to the provision of FAPE, including

* Print Page 63

ensuring that the education is provided at no cost to the child or the child's parents.

A school district must provide children with disabilities with

an opportunity to participate in nonacademic and extracurricular services and activities equal to that provided to nondisabled children. With respect to nonacademic services and activities for persons entitled to FAPE, a school district must ensure that each individual with a disability participates with nondisabled

individuals to the maximum extent appropriate to the needs of that individual. Nonacademic and extracurricular services and activities include meals, recess, counseling services, recreational activities and athletics, transportation, clubs sponsored by the school, and referrals to outside agencies, including employment agencies. A school district must provide nonacademic and extracurricular activities in a manner that ensures that individuals with disabilities have an equal opportunity to participate.

In order to ensure the provision of FAPE to school-age children, a school district must establish standards and procedures for the evaluation and placement of persons who, because of disability,

either need or are believed to need special education and/or related aids and services. An evaluation must be conducted before the child's initial placement in regular or special education as well as before any subsequent significant change in that placement. A school

district is also required to periodically re-evaluate students who have been provided special education and/or related aids and services.

With respect to evaluation procedures, a school district must ensure that:

1) tests and other evaluation materials have been validated for the specific purpose for which they are used, and are

administered by trained personnel in conformance with the

instructions provided by their producer;

2) tests and other evaluation materials are tailored to

assess specific areas of educational need and not merely designed to provide a single general intelligence quotient; and

3) tests are selected and administered so as best to ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student's aptitude or achievement level (or whatever other factor the test purports to measure) rather than reflecting the student's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).

* Print Page 64

With respect to placement procedures, in order to ensure

FAPE, a school district must take the following steps in

interpreting evaluation data and in making placement decisions:

Draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical conditions, social or cultural background, and adaptive behavior;
Establish procedures to ensure that information obtained from all sources is documented and carefully considered;
Ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child and the meaning of the evaluation data and placement options; and
Ensure that the placement decision complies with the requirements outlined above regarding educational setting.

When the school district has identified the educational and related services needed by a child with disabilities, it must

describe the program in writing, and it must provide services as described in the written plan.

In order to ensure the provision of FAPE, a school district is required to implement a system of procedural safeguards to be

afforded to parents and guardians with respect to any action

regarding the identification, evaluation, and placement of children who, because of disability, need or are believed to need special education or related services. At a minimum, the due process procedures must afford parents and guardians:

notice;
a right for parents and guardians to inspect relevant records;
an impartial hearing with an opportunity for participation by parents and with a right to representation by counsel; and
a review procedure.

The due process procedures described in the Individuals with Disabilities Education Act (IDEA) are one means of meeting the due process requirements and are recommended to school districts as a model.

Because school districts have specific responsibilities related to the provision of a free appropriate public education to school-age individuals with disabilities, it will in some instances be necessary for a school district to perform a two-prong analysis of its

programs, operations, benefits, and services:

* Print Page 65

1. an analysis of programs, operations, benefits, and

services provided by the district to anyone, including school-age children with disabilities; and

2. an analysis of education programs, operations, benefits, and services provided to school-age students with disabilities in connection with the provision of FAPE.

The discussion of the general prohibitions that follows will provide advice as to when the two-prong approach will be necessary and, where applicable, will provide examples showing application in a context where FAPE is required and in a context where FAPE is not required.

GENERAL PROHIBITIONS AGAINST DISCRIMINATION

_Applicability. A school district must ensure that no qualified individual with a disability is, on the basis of disability, excluded from participation in or denied any benefit of its services,

programs, or activities, or subjected to any other discrimination [28 C.F.R. ? 35.130(a)].

28 C.F.R. ? 35.130 General prohibitions against

discrimination.

(a) No qualified individual with a disability shall, on the

basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.

The requirement to ensure that qualified individuals with disabilities are not discriminated against in public school programs is applicable to the programs, activities, services, and operations that are operated or provided directly by public school districts, as well as those operated or provided by another entity on behalf of the public school district under contractual or other arrangements [28 C.F.R. ? 35.130(b)(1)]. This means that in conducting the self-evaluation it is necessary to evaluate programs, activities, services, and operations that are provided by another entity on

behalf of the school district through contractual or other arrangements as well as those provided directly by the school system.

For example, a school district that operates its own bus transportation program to transport elementary and secondary students between home and school may not exclude students with severe visual disabilities, on the basis of disability, from taking the bus. If the same school district contracted with a private company to take over the operation of its bus transportation program, it continues to be responsible for nondiscrimination in the bus program. Accordingly, if the private bus company excluded a student from service on the basis of the student's disability, the school district would be liable

under Title II for that discrimination, even where the private bus company also was liable for discrimination under a law other than Title II.

* Print Page 66

Basic Equal Opportunity Requirements

__Denial of Opportunity to Participate or Benefit _Prohibited.

A public school system must ensure that no qualified individual with

a disability is, on the basis of disability, excluded from participation in, or denied any benefit of, its services, programs,

or activities, or subjected to any other discrimination [28 C.F.R. ? 35.130(a)]. This means that, in providing general benefits and services, a public school district must take steps to ensure that a qualified individual with a disability is not denied the opportunity to participate in any of its programs or to benefit from any aid, benefit, or service that it provides. With respect to school-age individuals with disabilities, a public school district must ensure that no student is denied a free appropriate public education [28 C.F.R. ? 35.103(a); 28 C.F.R. ? 35.130(b)(1)(i)].

28 C.F.R. ? 35.130(b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability--

(i) Deny a qualified individual with a disability the

opportunity to participate in or benefit from the aid, benefit, or service.

A school district's obligation not to discriminate against qualified individuals on the basis of disability extends to the appointment of members to planning or advisory boards[28 C.F.R. ? 35.130(b)(1)(vi)].

Examples: Are these individuals with disabilities subjected to discrimination on the basis of disability?

In an effort to increase parental involvement, a school district invites parents of students to volunteer as classroom aides to perform a variety of tasks, including distributing and collecting materials and escorting groups of students to the playground, the library, and the lunchroom. A parent with a speech impairment volunteers, but is denied the opportunity because of his disability. This is a violation of Title II.
The parents of a high-school-age student with a behavioral disorder seek to enroll the child in the local high school. The

school district determines, without using the required procedures related to evaluation and placement, that the child may not enroll in the regular program, but, rather, must be provided with educational services at home. The school district has failed to follow the requirements related to provision of a free appropriate public education and has denied this student an equal opportunity to participate in the education program, in violation of Title II.

__Provision of Unequal Opportunity or Benefit _Prohibited. A public school district must also ensure that, in providing general services and benefits, a qualified individual with a disability is provided an opportunity to participate in its programs that is equal to the opportunity that is provided to nondisabled persons to participate. A school district must also ensure that a qualified

* Print Page 67

individual with a disability is provided with an opportunity to benefit from any aid, benefit, or service that is provided under its programs that is equal to the opportunity that is provided to nondisabled individuals.

With respect to school-age individuals with disabilities, this requirement incorporates the responsibility of a school district to ensure that school-age individuals with disabilities are provided a free appropriate public education in accordance with the principles outlined above [28 C.F.R. ? 35.103(a); 28 C.F.R. ? 35.130(b)(1)(ii)].

28 C.F.R. ? 35.130(b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability--

(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others.

Example: Does this school policy discriminate against a parent

with a disability?

A school sends out a notice to parents, asking that they volunteer to accompany the class on various field trips throughout

the year. The request is conditioned by a statement that for "insurance reasons" parents with disabilities may not serve as chaperons.

This policy violates Title II, because the opportunity to participate in their child's field trips is denied to all parents

with disabilities. Thus, the opportunity provided to those parents with disabilities who would be qualified to participate in the field trips is unequal to the opportunity provided to nondisabled parents.

Examples: Are these children receiving unequal opportunities or benefits?

1. A school district has evaluated a child with a disability and determined that, in order to provide a free appropriate education to the child, the child must be provided with bus transportation and must participate in the school educational program for the full instructional day. However, the district's transportation policies

for students with disabilities result in the provision of a shorter instructional day for this student than is provided for nondisabled students. The transportation policy causes this child to be denied,

on the basis of disability, an opportunity to participate in the full instructional day that is equal to the opportunity provided to nondisabled students, and thus denies the child a free appropriate public education in violation of Title II.

2. A child with a profound hearing disability is evaluated, and it is determined that, in order to provide a free appropriate public education, related aids and services,

* Print Page 68

including a sign language interpreter, must be provided. The school district, citing expense, refuses to pay for the sign language interpreter. Where a related aid or service is found to be necessary to the provision of a free appropriate public education, denial of

the related aid or service causes the child to be denied, on the

basis of disability, an opportunity to participate in or receive benefits under the program that is equal to that provided to nondisabled students, and is thus in violation of Title II.

__Provision of Benefit or Service That Is Not Equally Effective _Prohibited. In providing general services and benefits, a school district must ensure that services provided to qualified individuals with disabilities are effective enough to afford equal opportunity to obtain the same result, gain the same benefit, or reach the same

level of achievement as nondisabled individuals.

With respect to school-age individuals with disabilities, this requirement incorporates the responsibility of a school district to ensure that school-age individuals with disabilities are provided a free appropriate public education in accordance with the principles outlined earlier [28 C.F.R. ? 35.103(a); 28 C.F.R. ? 35.130(b)(1)(iii)].

28 C.F.R. ? 35.130(b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability--

(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, to reach the same level of achievement as that provided to others.

Examples: Are the benefits or services provided "equally effective"?

1. A school sponsors an exhibit of art produced by high

school students. A parent with a vision impairment cannot see the sculptures created by his son, and requests that the school permit

him to touch the sculptures. Although the sculptures would not be damaged by touching, the school informs the parent that the art must remain in the display case and that persons attending the exhibit may not touch the artwork.

Whereas nondisabled individuals can appreciate the sculptures simply by looking at them, the parent with the vision impairment can appreciate them only by touching them. Thus, the school's response does not ensure that the parent has an equal opportunity to obtain

the same result or gain the same benefit as that provided to nondisabled persons. Clearly, the benefit provided to the parent is not "equally effective."

2. A child with a learning disability is evaluated, and it is determined that the child can participate in the regular education program with certain modifications, such as being permitted

additional time in which to take tests. Any action inconsistent with this determination, such as a teacher's denial of additional time to take a test, would

* Print Page 69

result in provision of an educational service to this student that

was not effective enough to afford him an equal opportunity to reach the same level of achievement as nondisabled students.

_Programs. Under Title II, a school district may not operate separate or different programs, or provide separate or different benefits or services within programs, for individuals with disabilities, unless such programs, benefits, or services are necessary to provide benefits to persons with disabilities that are equally as effective as those provided to nondisabled persons [28 C.F.R. ? 35.103(a); 28 C.F.R. ? 35.130(b)(1)(iv)]. Even when

separate programs, benefits, or services are permitted under Title

II, a school district must provide them in the most integrated

setting appropriate to the needs of qualified individuals with disabilities [28 C.F.R. ? 35.103(a); 28 C.F.R. ? 35.130(d)].

28 C.F.R. ? 35.130(b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability--

(iv) Provide different or separate aids, benefits, or services

to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided

to others ....

(2) A public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.

In conducting the self-evaluation, a school district must evaluate any separate or different programs, benefits, or services provided to individuals with disabilities. However, because there are specific requirements for providing FAPE to school-age children, a school district should evaluate any separate or different programs related to the provision of educational services to school-age children both under the requirements applicable to all individuals with disabilities and in accordance with the specific requirements of FAPE. These requirements are discussed separately in the sections

that follow.

(1) Separate or Different Programs--General

School districts must administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities [28 C.F.R. ? 35.103(a); 28 C.F.R. ? 35.130 (d)]. However, a school district may offer separate

or special programs when necessary to provide individuals with disabilities an equal opportunity to participate in the program or benefit from its services. Any such separate or special program must be specifically tailored to meet the needs of the individuals with disabilities for whom it is provided.

Separate programs may not be established based on stereotypes or presumptions about what a class of individuals with disabilities can or cannot do. However, even where the school district operates a permissibly separate program or offers a permissibly separate service or benefit, it may not deny participation in the regular program or provision of the regular service or benefit to any qualified individual with a disability [28 C.F.R. ? 35.103(a); 28 C.F.R. ? 35.130(b)(2)]. The determination as to whether an individual with a disability is qualified to participate in the regular program must necessarily take into account other requirements of Title II, such as making reasonable modifications in policies, programs, and practices, providing auxiliary aids,

* Print Page 70

and ensuring program accessibility.

It is also important to note that persons with disabilities have the right to decline accommodations, aids, or services, including those that might be offered to individuals with disabilities participating in regular programs [28 C.F.R. ? 35.103(a); 28 C.F.R. ? 35.130 (e)]. For example, a parent with a hearing impairment may choose to decline special front-row seating at parent-teacher organization meetings. However, if individuals decline

accommodations necessary to enable them to participate in a program and are unable to meet the essential eligibility requirements of the program without the accommodations, they would not be "qualified individuals with disabilities." Of course, individuals with disabilities have the right to provide their own accommodations, aids and services, which may enable them to be qualified to participate in a program.

(2) Separate or Different Programs--Education of School-age Children

A school district may offer separate or special programs when necessary to provide school-age individuals with FAPE, subject to the requirements discussed earlier regarding educational setting, evaluation and placement requirements, and procedural safeguards. As outlined earlier, a school district must offer academic and

nonacademic programs, benefits, and services in the most integrated setting appropriate to the needs of the individual with disabilities. In providing permissibly separate or different programs, benefits, or services for school-age individuals with disabilities (such as

physical education courses or athletics activities), a school

district must ensure that no qualified individual with a disability

is denied the opportunity to also participate in the program, or to receive the service or benefit, that is _not separate or different.

Examples: Are these separate or different programs permissible?

1. The school district sponsors recreational leagues for adults. One of the leagues is a separate basketball league for individuals who use wheelchairs.

As long as the school district permits individuals with disabilities who use wheelchairs to participate in other recreational leagues for which they are qualified, the separate wheelchair basketball league is permitted.

2. A child with mental retardation is evaluated, and it is determined that the academic setting most appropriate to her needs is

a special education program. It is further determined that the child should participate in recess, physical education, and lunch with nondisabled students.

* Print Page 71

As long as the evaluation and placement in the separate special education program are consistent with the requirements related to the provision of FAPE outlined earlier, and as long as the child has an opportunity to participate in nonacademic activities in accordance

with the determination, the placement in the separate special

education program is consistent with Title II.

Surcharges Prohibited

Title II prohibits placing surcharges on individuals with disabilities to cover the cost of measures necessary to provide nondiscriminatory treatment [28 C.F.R. ? 103(a); 28 C.F.R. ? 35.130(f)].

As discussed above in connection with the obligation of a school district to provide FAPE to school-age children, the district must provide FAPE without cost to the person with a disability or to his

or her parents.

Examples: Are these surcharges prohibited under Title II?

1. A child with cerebral palsy is evaluated and it is

determined that he should be placed in a regular educational program with related aids and services, including use of a computer at school and at home. The child's parents are sent a bill for the lease of the computer from the school district. The school district's action is illegal. The district may not charge the student or his parents for

the computer or any other related aid or service necessary to provide

a free appropriate public education.

2. The high school dramatic society puts on a series of plays under school sponsorship to which the entire local community is invited. In a discussion with school officials, it is suggested that

a one-dollar surcharge be placed on tickets sold to individuals with hearing impairments to help defray the cost of the new assistive listening devices. Any such surcharge would be a violation of Title

II.

With respect to qualified individuals with disabilities, a

school district is prohibited from placing surcharges on any such individual. This means, for example, that a school district that provides an auxiliary aid to an individual with a disability in order to enable that individual to participate in the program effectively

may not charge the individual for the auxiliary aid. A school

district may, however, charge individuals with disabilities the same fees for services, programs, and events that it charges

* Print Page 72

individuals without disabilities.

Reasonable Modifications in Policies, Practices, or Procedures

A school district must make reasonable modifications to its policies, practices, and procedures when such modifications are necessary to ensure that a qualified individual with a disability is not discriminated against on the basis of disability [28 C.F.R. ? 35.130(b)(7)]. Evaluation of this requirement by a school district necessitates the two-prong analysis outlined above, in which the specific requirement for the school district to provide FAPE to school-age children is considered separately from the general

provision that is applicable to _all qualified individuals with disabilities. For this reason, we will discuss reasonable modifications in general terms and in regard to FAPE separately.

28 C.F.R. ? 35.130(b)(7) A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

__Reasonable Modifications in Policies, Practices, and Procedures--_General. In conducting a self-evaluation of its

policies, practices, and procedures, a school district must determine the effect of each one on individuals with disabilities. Where a school district identifies a policy, practice, or procedure that has any type of discriminatory effect on individuals with disabilities,

the district is required to modify it unless the modification would

not be "reasonable." A modification of a policy, practice, or

procedure would not be reasonable where the district can demonstrate that the modification would "fundamentally alter" the nature of the particular service, program, or activity affected.

Each school district must examine its policies, practices, and procedures related to the provision of services, benefits, and programs. Wherever these services, benefits, and programs are not accessible to qualified individuals with disabilities because of policies, practices, and procedures, the school district must

identify modifications that would enable the district to meet all substantive requirements to ensure equal opportunities for

individuals with disabilities.

Example: Has this school failed to make a reasonable modification of the school's policies, practices, or procedures?

A school requests that adults in the community volunteer to

tutor "at risk" students in a variety of subjects. In order to ensure that volunteers possess the necessary subject matter expertise and to best match volunteers and students, the school requires, as part of

the application process, that volunteers take a written test to demonstrate their knowledge of subject matter. Tests are administered under timed conditions. An individual with a learning disability applies to volunteer as a tutor. She submits references and documentation to show

* Print Page 73

that she has subject matter expertise and prior successful experience in tutoring the particular subject. She also submits documentation to show that, due to her learning disability, she would need additional time for completing the test. The school indicates that it is unwilling to modify its policy regarding the time for completing the test.

The individual seeking to volunteer has been denied an

opportunity to participate in the tutoring program because of a

failure to make a reasonable modification in the application

procedures for this program. Providing this modification would not fundamentally alter the nature of a service, program, or activity. Therefore, the school's decision was illegal.

__Reasonable Modifications in Policies, Practices, and Procedures--Application to School-Age Individuals with Disabilities (_FAPE). As part of the required self-evaluation, school districts

must assess their policies, practices, and procedures in light of the specific requirement to provide FAPE to school-age children. The fundamental nature of a school district's program involves the provision of elementary and secondary educational services to school-age students, including provision of FAPE to school-age

children with disabilities. Consequently, if a failure to modify a policy, practice, or procedure would result in a denial of FAPE to a school-age individual with a disability, a school district may _not refuse to make this modification on the basis that such modification would constitute a fundamental alteration of the nature of its education program.

Unlike the requirement to provide auxiliary aids in contexts

other than FAPE (discussed in Chapter Seven), the obligation to

provide related aids and services necessary to the provision of FAPE

is _not subject to the limitations regarding undue financial and administrative burdens or fundamental alteration of the program. (The concepts of "undue burdens" and "fundamental alteration" are

discussed in Chapter Seven.)

Example: Is this child denied FAPE because of a failure to provide reasonable modifications in school policies and practices?

A school district has a regular school year of 10 months. A

child with developmental disabilities is evaluated and it is

determined that placement in a 12-month program is appropriate. The school district makes an administrative decision that it does not

wish to allocate limited funds to 12-month programs and cancels them. Instead, it places the child in a special 10-month program.

To comply with Title II, the school district must ensure that

this child is provided with educational services for 12 months.

* Print Page 74

Eligibility Criteria

A school district may not use eligibility criteria for participation in its programs or receipt of its benefits or services that directly or indirectly screen out individuals with disabilities, or that directly or indirectly cause individuals with disabilities to be denied full and equal participation, services, or benefits,

_unless the eligibility criteria are necessary for the provision of

the service, program, or activity being offered [28 C.F.R. ?

35.103(a); 28 C.F.R. ? 35.130(b)(8)]. Because a school district has specific requirements to provide FAPE to school-age children with disabilities, as outlined below, a school district should use a two-prong analysis in evaluating whether its eligibility requirements comply with Title II.

28 C.F.R. ? 35.130(b)(8) A public entity shall not impose or

apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.

_General. In assessing general eligibility requirements, it is necessary to recall that an individual with a disability who meets

the essential eligibility requirements for the receipt of services or participation in a program is "qualified" to receive services from

the district or participate in a district program. This is true regardless of the terms of that participation--that is, with or

without reasonable modifications to rules, policies, or practices;

with or without the removal of architectural barriers; and regardless of whether auxiliary aids or services are provided. Accordingly, the self-evaluation process must determine whether there are eligibility requirements that affect individuals with disabilities adversely,

and, if so, whether those requirements are necessary for the

provision of the service, benefit, or program.

The school district must first determine: (1) whether it imposes any eligibility requirements _directly on the basis of disability

that screen out, restrict, or segregate individuals with

disabilities; (2) whether it imposes any eligibility requirements

that, although not based on disability, _indirectly screen out,

limit, or segregate individuals with disabilities; or (3) whether it imposes any eligibility requirements that place a requirement or

burden on individuals with disabilities that is not placed on others.

In each case in which the school district identifies an eligibility requirement that adversely affects individuals with disabilities in any of the ways outlined above, the school district must determine if the eligibility requirement is essential. These determinations must be made on a case-by-case basis, using facts related to the particular service, benefit, or program, and

considering what is essential to the purpose of the particular

service, benefit, or program offered by the district.

As noted above, where an individual with a disability can meet

the essential eligibility requirements related to receipt of services or participation in the program--with or without reasonable modifications--he or she is "qualified." Such an individual may not

be screened out or limited because of difficulty in performing

* Print Page 75

tasks that bear only a marginal relationship to the purpose of the service, benefit, or program. Note, however, that a school district

is not required to eliminate those requirements that _are necessary

to the provision of the service, benefit, or program.

A school district may impose legitimate safety requirements necessary for the safe operation of its services, benefits, or programs. However, any safety requirement must be based on actual risks, and not on speculation, stereotypes, or generalizations about individuals with disabilities.

Examples: Are these eligibility requirements permissible?

1. A school district sponsors evening non-credit classes in

arts and crafts for adults. The application states that individuals with disabilities must submit a doctor's certificate indicating that they are able to participate in the course. The district can make no showing that this blanket requirement is essential. This type of eligibility requirement is in violation of Title II.

2. A school district offers an evening non-credit course in scuba diving. The course instructor proposes to prohibit students who use wheelchairs from signing up for the course on the presumption

that a person who uses a wheelchair would not be able to swim well enough to participate in the program.

Denial of admission to a course based on stereotypes or generalizations about what individuals with disabilities can or

cannot do is inconsistent with Title II. However, where a safety requirement can be shown to be necessary based on real risks, it is permissible under Title II even if the requirement would tend to

screen out individuals with certain types of disabilities. In the

case of the scuba diving course, where the school district can demonstrate that a certain level of swimming ability is necessary for safe participation in the class, the school district may require that all participants in the class pass a swimming test, even if the test would tend to screen out individuals with certain types of disabilities. However, a blanket prohibition such as the one

described above would be prohibited.

__School-Age Children Entitled to _FAPE. With respect to assessing eligibility requirements related to the education of school-age children, the underlying consideration, as discussed above, is that a school district is _required to provide FAPE to school-age individuals with disabilities. In this regard, the fundamental nature of the school district's education program

includes the provision of FAPE to school-age children, in accordance with the

* Print Page 76

requirements outlined above related to educational setting,

evaluation and placement, and procedural safeguards.

Example: Is this restriction on related aids and services permissible?

A school district limits eligibility for related aids and services, such as occupational therapy or physical therapy, to individuals with disabilities who are enrolled in the special

education program. This eligibility requirement denies related aids

and services that are necessary to fulfillment of the obligation to provide a free appropriate public education to all individuals with disabilities who are enrolled in the regular education program, but

who have been determined, in accordance with the requirements related to the provision of FAPE, to need related aids or services. Thus,

this eligibility requirement is inconsistent with Title II.

Effect of Policies and Practices (Criteria or Methods of Administration)

A school district may not use "criteria or methods of administration" that result in discrimination on the basis of disability [28 C.F.R. ? 35.103(a); 28 C.F.R. ? 35.130(b)(3)]. As discussed above, under Title II, a public school system may not have written policies or actual operating practices that exclude qualified individuals with disabilities directly on the basis of their disability. The requirement prohibiting criteria or methods of administration that have the effect of discriminating on the basis of disability means that a school district may not use policies or practices--even where they are not stated in terms of prohibiting participation on the basis of disability or where they are not

intended to prohibit or limit participation on the basis of disability--that cause qualified individuals with disabilities to be denied an equal opportunity to participate in a program or to benefit on an equal basis under the program.

28 C.F.R. ? 35.130(b)(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or

methods of administration:

(i) That have the effect of subjecting qualified individuals

with disabilities to discrimination on the basis of disability;

((ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the

public entity's program with respect to individuals with

disabilities; or

(iii) That perpetuate the discrimination of another public

entity if both public entities are subject to common administrative control or are agencies of the same State.

In conducting a self-evaluation, a school district must assess

the results of policies and practices to determine if any policies or practices: (1) have the effect of subjecting qualified individuals

with disabilities to discrimination on the basis of disability; (2) defeat or substantially impair accomplishment of the district's programs with respect to individuals with disabilities; or (3) perpetuate discrimination of one public entity by another when both entities are under common administrative control or are agencies of

the same state [28 C.F.R. ? 35.130(b)(3)].

* Print Page 77

Selecting Sites and Locations

In determining the site or location of a facility, a school district may not select a site or location that: (1) has the effect

of excluding individuals with disabilities, denying them benefits, or otherwise subjecting them to discrimination; or (2) has the purpose

or effect of defeating or substantially impairing the accomplishment

of the objectives of the service, program, or activity with respect

to individuals with disabilities [28 C.F.R. ? 35.103(a); 28 C.F.R. ? 35.130(b)(4)]. Thus, the site selection procedures of a school

district should routinely include an assessment of whether the

terrain or any other feature of a site or location under

consideration would have any adverse effect on participation by qualified individuals with disabilities.

The requirements concerning the selection of sites and locations do not apply to construction of additional buildings at an existing site. However, any such facilities must be made accessible in accordance with the requirements for new construction discussed in Chapter Six.

Significant Assistance to Entities That Discriminate

School districts must identify agencies, organizations, and persons to whom the school system provides "significant assistance"

and determine whether, through that assistance, they may be aiding or perpetuating discrimination against qualified individuals with disabilities. Interpretive guidance issued by the U.S. Department of Education in connection with Section 504 states that, in determining whether assistance to another entity is "significant," a school district should consider the substantiality of the relationship

between the district and the other entity, including any financial support the district provides, and whether the other entity's activities relate so closely to the district's programs that they should fairly be considered activities of the district.

28 C.F.R. ? 35.130(b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability--

(v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to

an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity's program.

Example: Is this school district providing "significant assistance"

to an organization that discriminates against persons with disabilities?

A school district permits a national service fraternity to establish a tutoring and mentoring program for "at-risk" students at

a junior high school. The school participates with the fraternity in publicizing the program to students, in counseling students to participate in the program, and providing space and supplies for the program. Then the school learns that the fraternity plans to ask students who have applied to the program whether they are

HIV-positive and to screen students out of the program on that basis.

* Print Page 78

The initial relationship between the school district and the fraternity would constitute the provision of "significant assistance" to the fraternity. The school district must inform the service fraternity that it cannot provide "significant assistance" to an organization that discriminates on the basis of disability. If the service fraternity does not eliminate the discriminatory criterion

for participation, the school must terminate its "significant assistance."

Procurement Contracts

A school district may not discriminate on the basis of

disability in the selection of contractors in any procurement [28 C.F.R. ? 35.103(a); 28 C.F.R. ? 35.130(b)(5)]. (This requirement is spelled out more specifically in the Title II regulation, than in the Section 504 regulation.)

Example: Has this school district discriminated in awarding a

contract?

A school district rejects the bid of, and refuses to contract with, a food service company to operate its cafeteria because the company employs individuals with physical and cognitive disabilities. The company submitted the lowest qualified bid and is fully qualified to perform all the functions set out in the request for bids. This action is a violation of Title II.

Licenses or Certification

A school district that operates a licensing or certification program may not discriminate against qualified individuals with disabilities on the basis of disability in its licensing and certification activities [28 C.F.R. ? 35.103(a); 28 C.F.R. ? 35.130(b)(6)]. A school district may not establish requirements for

the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. Although licensing standards are covered by Title II, the licensee's activities themselves are not covered. An activity does not become a "program or activity" of a school district merely because it is licensed by the school district.

Discrimination Based on Association with Persons with Disabilities

Although discrimination based on association with persons with disabilities is covered in the general prohibitions of the Title II regulation, it is discussed in this Guide in Chapter Two.

* Print Page 79

Exceeding the Title II Requirements

Title II permits a school district to provide benefits,

services, or advantages to individuals with disabilities, or to a particular class of individuals with disabilities, beyond those required by the regulation [28 C.F.R. ? 35.130(c)]. This means that school districts may provide programs, services, and benefits that

are designed only to benefit individuals with disabilities without incurring additional obligations to nondisabled persons or to other classes of individuals with disabilities.

Example: Is this special program prohibited under Title II?

A school has organized an after-school study group with tutoring assistance to encourage students with learning disabilities in their academic subjects. In order to encourage these students to read as

much as possible, one component of the program encourages the

students to bring in personal projects that involve reading, but are not related to the school's program, for assistance by the tutors. Participation in this program is voluntary and is not included as

part of the school's obligation to provide FAPE to any student. The establishment of this program does not require the school to

establish a similar program for students with other disabilities or

for nondisabled students. It is also important to note that the

school may not exclude students with learning disabilities from any other tutoring program in which they are qualified to participate. Moreover, because participation in the special tutoring program is

not part of the school's obligation to provide FAPE to any student,

the school may not _require any student with a learning disability

to participate in this special program.

ILLEGAL USE OF DRUGS

Although the illegal use of drugs is covered in the general prohibitions of the Title II regulation, it is discussed in this

Guide in Chapter Two.

SMOKING

Title II does not affect the right of a school district to prohibit smoking or impose restrictions on smoking in its facilities.

* Print Page 80

MAINTENANCE OF ACCESSIBLE FEATURES

Although the maintenance of accessible features is covered in

the general prohibitions of the Title II regulation, this requirement is discussed in Chapter Six of this Guide.

RETALIATION OR COERCION

Although retaliation and coercion is covered in the general prohibitions of the Title II regulation, this prohibition is

discussed in Chapter Two of this Guide.

PERSONAL DEVICES AND SERVICES

In general, Title II does not require school districts to

provide personal devices such as wheelchairs, prescription eyeglasses or hearing aids, readers for personal use or study, or services of a personal nature, including assistance in eating, toileting, or

dressing [28 C.F.R. ? 35.103(a); 28 C.F.R. ? 35.135]. This provision serves as a limitation on the school district's obligation to comply with other Title II requirements, including the duty to provide auxiliary aids and services to facilitate communication, and the duty to modify policies, practices, and procedures to ensure

accessibility. __This provision does not affect the obligation of a school district to provide a personal device or service in the form

of special education or a related aid or service, if that device or service is necessary to provide FAPE to the individual _student.

Examples: Is the school district required to honor these requests?

1. A parent with a severe mobility impairment volunteers to chaperon a class trip. The parent informs the school district that

it must provide her with an attendant to assist her in eating, toileting, and dressing. Under the facts of this case, Title II would not require the school district to provide the personal services required by the parent.

2. A child with a disability needs clean intermittent catheterization (CIC) in order to participate in a regular

kindergarten program. The school district objects to providing this service on the basis that this is a personal service not required by Title II. Because in this case the CIC is a related aid or service

that is required to provide FAPE to a school-age child, Title II

would require that the CIC be provided.

* Print Page 81

IMPLEMENTATION

Nondiscrimination Policies and Practices

This section describes a process for conducting the following activities:

- Identify the subcommittee (if any)
- List programs, activities, and services
- Collect and document policies and practices -- Define the survey's scope
- Conduct the review
- Assess findings and document changes needed -- Obtain comments

Implementation

Public school systems are required to review both written policies and actual operating procedures to ensure that people with disabilities are not subjected to discrimination. School systems can use this self-evaluation review process to organize and review their written and unwritten policies for compliance with Title II. Findings can then be analyzed to identify where changes are needed to permit people with disabilities to participate fully in the full range of programs, activities, and services offered by the school system and enjoy their full benefits.

Title II contains broad prohibitions against discrimination. Because the concerns related to FAPE are distinct and specific, public school systems will need to evaluate policies and procedures that affect school-age children separately from the general policies and practices pertinent to other audiences (such as parents and members of the general public).

The Self-Evaluation Review Form presented in this chapter may be used by a public school system to evaluate its nondiscrimination policies and practices, except in the area of employment. (See Chapter Five, __Requirements for Employment Policies and _Practices). The review form is divided into two sections:

I. Review of Policies and Practices Governing the Provision of FAPE

II. General Review of Policies and Practices that Govern Programs, Activities, and Services of Public School Systems

Seven basic steps to complete a self-evaluation are described below. Steps 1-4 should be completed _before the Self-Evaluation Review Form is completed (Step 5). Steps 6-7 should be addressed _after the Self-Evaluation Review Form is completed.

Step 1. Identify the Subcommittee (if any)

Your school district may wish to have the ADA compliance team conduct the policies and practices review or identify a separate policies and practices subcommittee for this purpose. Of course, the ADA coordinator should participate in the review, along with those who have the greatest familiarity with current policies and practices. This generally would include regular and special education senior staff, school psychologists, coordinators for special events and after-hours programs, coordinators for athletics and other major program areas, and those who have the greatest familiarity with issues that have arisen in the past.

__Worksheet 4-1 may be used to document the membership of the subcommittee that will review the school system's policies and practices to ensure _compliance.

* Print Page 82

Step 2. List Programs, Activities, and Services

In order to conduct your review of policies and practices, you will need a working list of all programs, activities, and services offered by the school system, along with a concise description of each (e.g., purpose, scope, type of activities, number of disabled persons served). If you did not collect this information at the planning phase of your self-evaluation, you will want to collect it before you initiate your self-evaluation for nondiscrimination policies and practices. (See Chapter Three, _Planning _for _Compliance.)

Step 3. Collect and Document Policies and Practices

The policies and practices subcommittee will also need to appreciate the "universe" of policies and practices pertinent to school system operations. As for the initial list of programs, if you have collected this information at the planning phase of your process you need not do so again. If you have not, you should ask program area representatives to forward all policy documentation pertinent to programs, activities, services, and practices of the school system. This information may be collected at the same time as program summaries. (See Chapter Three, _Planning _for _Compliance.)

Step 4. Define the Survey's Scope

In order to make effective decisions about how best to conduct your review, you need to review the program data received and summarize it in a way the subcommittee can use. By analyzing program information as a subcommittee, you can focus on aspects of programs that need to be examined and determine the conditions that must be present for a person with a disability to fully participate in the various programs, activities, and services of the school system. This preliminary information will help the subcommittee analyze the data returned through the survey and recognize where discriminatory practices are occurring, regardless of whether their effects are intended.

__Worksheets 4-2 and 4-3 may be used to perform this preliminary analysis. You will want to fill out all portions of these worksheets except the fourth column, "needed changes to policy or practice." This will be filled out after the policies and practices questionnaires have been completed and reviewed by the _subcommittee.

Step 5. Conduct the Review

Once you have agreed on a survey instrument and an approach, you are ready to conduct the survey throughout your school

* Print Page 83

system. It is important to ensure that the instrument is introduced in a manner that will stress its importance, build understanding of the need for the information requested and how it will be used, and encourage honest responses.

__Worksheet 4-4, Parts I and II, contains suggested questions for the two primary areas of concern to school systems: those policies and procedures related to FAPE and those pertinent to general nondiscrimination practices that affect a wide range of audiences. This Self-Evaluation Review Form is only one tool that may be used by public school systems to evaluate their policies and practices for compliance with Title II. Since the characteristics of programs, services, activities, and practices of public school systems vary, school systems are encouraged to modify this review form to meet their specific _needs.

Step 6. Assess Findings and Document the Changes Needed

Once survey results are received, you will want to review them to determine where existing policies and practices must be modified, or new ones implemented, to ensure that individuals with disabilities fully participate in the programs, activities, and services of the public school system.

__Worksheets 4-2 and 4-3 contain a column where "needed changes to policy or practice" may be identified. While the worksheets do not provide a space for listing problem areas encountered, you may find it useful to do so as each program area is reviewed. You will then have a written record for your discussion of required _changes.

Step 7. Obtain Comments

You will want to document problem areas, and the changes you intend to make to address them, in a brief but coherent report. This document should be circulated to appropriate persons who have the knowledge and expertise to determine whether the remedies you have decided to propose will address the problems effectively. Remember, you must allow individuals with disabilities and other interested persons to participate in the self-evaluation process by submitting comments.

Once comments are assessed and final decisions made, changes should be made expeditiously. Deadlines for such changes have passed, and complete compliance is mandatory immediately.

* Print Page 84

Worksheet 4-1

POLICIES AND PRACTICES SUBCOMMITTEE

SCHOOL DISTRICT: ----

NAME (ADA coordinator): ---- ORGANIZATIONAL UNIT: ----

TELEPHONE: ---- DATE: ----

NOTES: ----

Identify members of the subcommittee responsible for conducting the review of policies and practices and record basic data about the subcommittee.

Policies and practices subcommittee role or mission in ensuring

ADA compliance: ----

Meeting frequency/location: ----

Procedures for convening policies and practices subcommittee: ---Chair: ----

Policies and Practices Subcommittee Membership

In this empty table, columns follow each other in this order: Name: Title; Area Represented/Skills.

* Print Page 85

Worksheet 4-2

SUMMARY OF REQUIRED CHANGES IN THE PROVISION OF FAPE

SCHOOL DISTRICT: ----

WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----

TELEPHONE: ---- DATE: ----

NOTES: ----

Define the scope of the survey by completing all columns except the fourth. When all policies and practices questionnaires (i.e., Worksheet 4-4) have been completed and reviewed by the subcommittee, complete the fourth column. You will probably wish to use one full page for each program area.

In this empty table, columns follow each other in this order: Program, Service, Activity, or Practice: Authority or Governing Policy; Conditions Required for Participation by People with Disabilities; Needed Changes to Policy or Practice (Provide Time Frames); Responsible Unit/Official.

* Print Page 86

Worksheet 4-3

SUMMARY OF REQUIRED CHANGES IN PROGRAMS, ACTIVITIES AND SERVICES

SCHOOL DISTRICT: ----

WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----

TELEPHONE: ---- DATE: ----

NOTES: ----

* Print Page 87

Worksheet 4-4

SELF-EVALUATION REVIEW FORM, PART 1

SCHOOL DISTRICT: ----

WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----

TELEPHONE: ---- DATE: ----

NOTES: ----

REVIEW OF POLICIES AND PRACTICES GOVERNING THE PROVISION OF FREE APPROPRIATE PUBLIC EDUCATION

A. _Free _Education. Provision of a free education means the provision of regular or special education and/or related aids and services without cost to the child with a disability or his/her parents or guardians, except for fees equally imposed on nondisabled children or their parents or guardians. The cost of a program may include tuition, related services, and other costs associated with the educational placement of a child with a disability. Also, if a school district places a student in a public or private program, other than one operated by the school system, the school system remains responsible for coverage of financial obligations associated with the placement.

Identify any programs and activities operated by the school district for which children with disabilities are charged a fee that is not imposed on nondisabled children. If any, please explain the reason for the additional fee for each program or activity identified.
List any fees imposed on a child with a disability placed in a public or private educational program by the school district to provide the child with a free appropriate public education. If any, please explain the reason for the additional fee for each program or activity identified.
If there are programs and activities operated by the school district for which children with disabilities are charged a fee that is not imposed on nondisabled children, or if a school district imposes any fees on a child with a disability placed in a program other than the one it operates in order to provide free appropriate public education to that child, document areas where new or modified policies and practices are needed and recommend solutions to identified problems. (For example, new policies and practices would be needed if a school district places a student in a program it does not operate in order to ensure the provision of a free appropriate public education, but does not ensure that adequate transportation to and from the program is provided at no greater cost to the parents or guardian than would be incurred if the student was placed in the district's program.)

B. _Educational _Setting. Promoting integration is a fundamental principle of Title II. Public school systems must provide each child with a disability an equal opportunity to participate in programs, activities, and services in the regular education setting, unless it can be demonstrated that the child requires a separate or different program in order to receive an appropriate education.

1. Describe the policies and procedures (written or unwritten) used by the school system to ensure that a child with a disability in the regular education setting is provided an individualized educational program to meet the particular needs of the child.

* Print Page 88

2. List the criteria used by the school system to determine when a child with a disability cannot participate in the regular education setting, even with the use of supplementary aids and services.

3. List "separate or different" programs, activities and services designated only for children with disabilities. If applicable, describe how they contribute to affording children with disabilities an equal opportunity to benefit.

4. Describe policies and procedures used by the public school system to ensure that regular and special education teachers (and other specialists) coordinate in providing educational services to children with disabilities who participate in regular or special education.

5. Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

C. __Nonacademic and Extracurricular _Activities. Public school systems must ensure that children with disabilities are afforded an equal opportunity to participate in nonacademic and extracurricular activities and services to the maximum extent appropriate to the needs of the child. Nonacademic and extracurricular services and activities may include physical education classes, counseling services, special interest groups or clubs, extended-day care, meals, recess periods, recreational athletics, and transportation.

List the nonacademic and extracurricular programs and activities offered by the school district in which a child with a disability may not participate. Please explain.
Identify any policy that would prohibit a child with a disability from participating in a nonacademic or extracurricular program, activity, or service offered by the school system. Please explain.
Describe the policies and procedures (written or unwritten) used by the school system to ensure that children in special education are afforded an equal opportunity to participate in nonacademic and extracurricular activities with nondisabled children.
Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

D. __Evaluation and Placement of Children with _Disabilities. Public school systems are required to establish standards and procedures for the evaluation and placement of children with disabilities who, because of their disability, need or are believed to need special education and/or related aids and services. Children with disabilities must be afforded the maximum possible integration with nondisabled children.

1. _Pre-placement _Evaluation. School systems must conduct an evaluation of any child who, because of a disability, needs or is believed to need special education and/or related aids or services. This evaluation must take place before taking any action with respect to the initial placement of the child and before any subsequent significant change in placement.

a. Describe the pre-referral policies and procedures used by school personnel prior to evaluation of a child with suspected disabilities, if any.

b. Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

* Print Page 89

2. __Evaluation Standards and _Procedures. School districts must establish standards and procedures for initial and continuing evaluation and placement decisions. These procedures must ensure that tests and other evaluation materials: (1) have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer; (2) include materials tailored to assess specific areas of educational need and not merely materials that are designed to provide a single general intelligence quotient; and (3) are selected and administered so as to best ensure that, when a test is given to a student with impaired sensory, manual or speaking skills, the test results accurately reflect the student's aptitude or achievement level (or whatever other factor the test purports to measure) rather than reflecting the student's impaired sensory, manual, or speaking skills (except where those skills are the factors the test purports to measure).

Periodic re-evaluation of a child who receives special education and/or related aids and services is required. Also, re-evaluation is required before any significant change in placement for a child with a disability.

School districts must take steps to ensure that students with limited English proficiency are not misassigned to special education classes because of their inability to speak, read, write, and understand English. Such steps may include: assessing the student in his or her own language; ensuring that accurate information regarding the student's language skills is taken into account in evaluating assessment results; and comparing results obtained when a part of the assessment is repeated in the student's first language.

a. List and describe the tests and other evaluation materials used for the initial and continuing evaluation of children with suspected disabilities.

b. Describe procedures used by the public school system to ensure that selected tests and other evaluation materials only measure what they purport to measure when administered to a child with particular disabilities.

c. Describe the standards and procedures that are used to ensure that tests are administered by trained personnel in conformance with the instructions provided by their publisher.

d. Describe policies and procedures used by the school system to re-evaluate a child with a disability who receives special education or related aids and services.

e. Describe procedures used by the public school system to ensure that tests and other evaluation instruments are appropriately administered to a child with a disability whose primary home language is not English.

f. Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

3. __Educational Placement of Children with _Disabilities. Placement decisions must be made by a group of persons, including persons knowledgeable about the child and the meaning of the evaluation data and placement options. The placement team must consider a variety of documented information for each student. The information must come from several sources, including aptitude and achievement tests, teacher recommendations, reports on physical condition, social or cultural background, and adaptive behavior. The school district must also establish procedures to ensure that information obtained from all sources is

* Print Page 90

documented and carefully considered. When the school district has identified the educational and related services needed by a child with disabilities, it must develop a plan and must provide services as described in the plan. The placement team must ensure that the placement provides for the education of the student with disabilities with students who do not have disabilities to the maximum extent appropriate to the needs of the student with disabilities.

a. Provide the title and responsibilities of key personnel on a standard placement team.

b. List the basic sources of information drawn upon to make educational placement decisions about a child with a disability.

c. Describe the procedures to ensure that all relevant information is incorporated into placement recommendations.

d. Describe the method used by the placement team to ensure that the educational placement recommended for a child with a disability is documented in sufficient detail to ensure that the individual educational needs of the child are met.

e. If a school district is unable to provide a child with a disability with an appropriate education and the district places the child in, or refers the child to, a program it does not operate, describe the procedures used by the district to ensure that the education offered by the public or private entity is in compliance with Title II and Section 504.

f. Describe criteria and procedures used by the public school system to ensure that a student with a disability is being educated with students who do not have disabilities to the maximum extent appropriate to his or her needs.

g. Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

E. _Procedural _Safeguards. A public school system is required to establish and implement a system of procedural safeguards with respect to the identification, evaluation, and placement of qualified children with disabilities in the school district.

Describe the information included in notices to parents or guardians regarding identification, evaluation, and placement, respectively.
Describe procedural safeguards established to ensure that the parents or guardians of a child with a disability are provided an opportunity to review all materials that are used as the basis for decisions about the child with respect to identification, evaluation, and placement.
Describe procedural safeguards established to ensure that the parents or guardians of a child with a disability are informed of: (1) their right to due process; (2) their opportunity to participate in a due process hearing; (3) their right to be accompanied and advised by representative counsel of their choosing; and (4) their right to appeal a hearing decision.
Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

* Print Page 91

Worksheet 4-4

SELF-EVALUATION REVIEW FORM, PART 2

SCHOOL DISTRICT: ----

WORKSHEET COMPLETED BY: ---- ORGANIZATIONAL UNIT: ----

TELEPHONE: ---- DATE: ----

NOTES: ----

GENERAL REVIEW OF POLICIES AND PRACTICES THAT GOVERN PROGRAMS, ACTIVITIES, AND SERVICES OF PUBLIC SCHOOL SYSTEMS

A. __Denial of Opportunity to Participate or _Benefit.

People with disabilities who are otherwise qualified to participate in the programs, activities, and services of a public school system cannot be barred from participation. Public school systems are prohibited from excluding not only people with disabilities, but also friends or family members associated with them.

Identify any circumstances in which a person with a disability or anyone associated with the person would, because of the person's disability, be restricted from or denied participation in a program, activity, service, or benefit offered by the public school system.
Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

B. __Provision of Unequal Opportunity to Benefit _Prohibited. Title II requires that people with disabilities receive the same opportunity as nondisabled people to participate in and benefit from the programs, activities, and services of a public school system.

Identify any circumstances in which there is greater opportunity for a nondisabled person than for a person with a disability to participate in a program, activity, service, or benefit that is generally available to both.
Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

C. __Provision of Benefit or Service that is Not Equally Effective _Prohibited. In providing general services and benefits, a school district must ensure that services provided to qualified individuals with disabilities are effective enough to afford them equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement as nondisabled individuals.

Describe procedures used to ensure that the public school system provides its general services and benefits to qualified individuals with disabilities in a manner that is effective enough to afford them an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement as nondisabled individuals.
Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

D. __Provision of Separate or Different Benefits _Prohibited. A public school system may not provide separate or different programs, services, or benefits for individuals with disabilities, unless

* Print Page 92

necessary to provide them with equally effective participation as afforded to nondisabled persons. Even when separate or different programs are permitted, the public school system must consider the following requirements:

- First, each qualified person with a disability must be given the same opportunity as nondisabled persons to participate in the regular offerings of the public school system.
- Second, each qualified person with a disability must be given the opportunity to participate in and benefit from the offerings of the public school system in the most integrated setting appropriate to the needs of that individual.
- Third, the provision of separate or different services is permitted only when necessary to provide an equal opportunity to qualified persons with disabilities.

Identify any separate program, activity, service, or benefit offered by the public school system that contributes to affording people with disabilities an equal opportunity.
Describe any circumstances in which a person with a disability would be prohibited from participating in regular (non-separate) activities because of the provision of separate activities.
Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

E. _Surcharges _Prohibited. A public school system is required to make its programs, activities, services, and benefits available to qualified individuals with disabilities to the extent that they are available to other participants in the program. Surcharges may not be imposed on individuals with disabilities to cover the cost of measures necessary to provide nondiscriminatory treatment.

List each program, activity, service, or benefit for which the public school system charges a fee.
Identify any circumstances in which a person with a disability would be asked to pay a fee or meet any other requirements not imposed on other program participants.
Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

F. Reasonable Modifications in Policies, Practices, and Procedures. Public school systems are required to review their policies, practices, and procedures to determine the effect of each one on participation by individuals with disabilities. If public school systems identify any policy, practice, or procedure that has a discriminatory effect on individuals with disabilities, the school system is required to modify it unless the modification would result in a fundamental alteration of the nature of the program, service, or activity.

Describe the procedures used to inform the public that the program is prepared to make reasonable modifications to accommodate any qualified individual with a disability and to respond to requests for modifications.
Identify procedures used to inform appropriate school personnel of the need to make reasonable and effective modifications to provide otherwise qualified individuals with disabili-

* Print Page 93

ties equal opportunity to participate in the programs, services, and activities operated by the public school system.

3. Identify the procedure used by the public school system to determine whether a policy or practice modification would fundamentally alter the nature of the program. If any, please describe.

4. Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

G. _Eligibility _Criteria. A public school system may not use eligibility criteria for participation in its programs or receipt of its benefits and services that screen out or deny individuals with disabilities full and equal participation in programs, services or benefits, unless the eligibility criteria are necessary for and relevant to the program, activity, service, or benefit being offered.

List the programs, activities, services, and benefits offered by the public school system and the _essential eligibility requirements of each.
Identify any criteria that may limit or screen out individuals with disabilities from participation in the programs, activities, services, and benefits offered by the public school system. Please explain.
Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

H. __Criteria or Methods of _Administration. School systems may not maintain policies or actual practices that exclude qualified individuals with disabilities on the basis of their disabilities.

List each program, activity, service, and benefit offered by the school system and identify relevant criteria or methods of administration.
Determine whether adherence to any criterion or method of administration excludes or segregates individuals with disabilities on the basis of their disability from full participation in each program, service, activity, or benefit offered by the public school system. If any, please explain.
Determine whether adherence to any criterion or method of administration perpetuates discrimination against any individual with a disability by another public entity that is under common administrative control or is in the same state as the public school system. If any, please explain.
Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

I. __Selecting Sites and _Locations. Public school systems may not select sites or locations for facilities that have the effect of excluding or denying individuals with disabilities the benefits of or participation in the programs, activities, and services of the public school system, or otherwise subjecting qualified individuals with disabilities to discrimination. (This does not apply to construction of additional buildings at an existing site.)

1. Determine whether the terrain or any other feature of a site or location under consideration would have any adverse effect on participation by a qualified individual with a disability.

* Print Page 94

2. Describe criteria utilized in the selection of sites or locations for facilities that are designed to ensure that qualified individuals with disabilities are not subjected to discrimination. Are these criteria utilized every time sites or locations are being selected for facilities? Please explain.

3. Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

J. _Significant _Assistance. Public school systems that provide significant assistance to another agency, organization, or individual retain responsibility for ensuring that the other entity or individual does not discriminate on the basis of disability. In determining whether assistance to another entity or individual is significant, a public school system should consider the substantiality of the relationship (e.g., financial support) and whether the activities of the other entity or individual relate so closely to the school system's programs that these activities could fairly be considered activities of the public school system.

List any organization, program, or individual that receives significant assistance from the public school system.
Describe the policies, procedures, and practices used by the public school system to ensure that agencies, organizations, and individuals that receive significant assistance do not discriminate against individuals with disabilities.
Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

K. _Procurement _Contracts. Public school systems may not discriminate on the basis of disability in selecting procurement contractors.

List any organizations, programs, or individuals with which the public school system contracts services.
Identify the policies and actual operating practices that govern contract relations to determine whether provisions are included to ensure that programs, activities, services, and benefits provided by contractors on behalf of the public school system are free of discrimination. If none, please explain.
List any circumstances in which a consideration related to disability would influence the choice of a procurement contractor. Please explain.
Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

L. _Licenses _or _Certification. A public school system may not deny a license or certification to any person with a disability who meets the essential eligibility requirements for the license or certification. Eligibility requirements cannot include criteria that directly or indirectly screen out people with disabilities unless the criteria are necessary to the performance of the activity which is the object of the license or certificate.

1. List any licenses or certifications issued by the public school system.

* Print Page 95

2. List any eligibility criteria for licenses and certificates that may tend to screen out people with disabilities. For each potentially exclusionary criterion, identify why the criterion is necessary to the performance of the activity to which the license or certificate applies.

3. Document areas where new or modified policies and practices are needed and recommend solutions to identified problems, as needed.

http://www.edlaw.net/service/ada_4.html

Outside Links will Open Up in a New Window
contact us: DBTAC Southwest ADA Center
800-949-4232 or 713-520-0232 v/tty