Access Beyond the Classroom

1. Access Beyond the Classroom Lauren Eversole Staff Attorney, Advocacy, Education, Outreach Team

2. Disability Rights Florida • Funding, responsibility, and authority under nine federal programs to protect the rights of Floridians with disabilities  • A not-for-profit corporation since 1987 • Offices in Tallahassee, Tampa, Hollywood, and Gainesville  • Satellite offices in several other communities 

3. Our Mission • To advance the quality of life, dignity, equality, self determination, and freedom of choice of persons with disabilities through collaboration, education, advocacy, as well as legal and legislative strategies. 

4. About Your Presenter • Ms. Eversole has worked with Disability Rights Florida since 2016. In addition to receiving her law degree from Charleston School of Law in 2014, she graduated with a Bachelor of Arts in History from UNC-Chapel Hill (GO TARHEELS!), and has a Master of Social Work degree from the University of South Carolina • Ms. Eversole is a member of the Florida and North Carolina State Bars. She is a Staff Attorney with Disability Rights Florida on the Advocacy, Education, and Outreach Team. Ms. Eversole’s work focuses primarily on special education, post-secondary education, and community accessibility • Ms. Eversole is admitted to practice in the U.S. District Courts for the Southern, Middle, and Northern Districts of Florida

5. What We Will Cover • Applicable Laws, regulations, and guidance that govern accessibility to activities for children with disabilities beyond the school day • Case Examples • Advocacy and Legal Strategies • Hypotheticals 

6. Activities Beyond the School Day • School-Based Extracurricular Activities and Programs  • Examples: Field trips, Athletics, Student Organizations, Student Clubs, Chorus, Band, Drama • School-Based Before and After School Programs  • Community-Based Programs (Public or Private) • Examples: Recreational Sports and Summer Camps 

7. Benefits of Extracurricular and After School Activities  • Improved Academic Performance  • Lower drop-out rates  • Increased opportunity for socialization with peers  • Increased self-esteem and sense of belonging  • Safety and supervision  • Structured academic Support  • Exposure to new interests  • Boosts college applications and résumés

8. Benefits of Inclusion of Children with Disabilities  Mutually Beneficial • Provides opportunities for children with disabilities to develop social and communication skills  • Increased contact with peers without disabilities will help prepare for life after school  • Children without disabilities will have the opportunity to learn and appreciate diversity and prepare for life in an inclusive society  • Opportunity for all to build and maintain friendships 

9. Legal Authority • Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400, et seq. and its implementing regulations at, 34 C.F.R. Part 300. • Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. §794 et seq. and its implementing regulations at 34 C.F.R. Part 104. • Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. • Title II (State and Local Governments) implementing regulations: 28 C.F.R. Part 35 • Title III (Public Accommodations) implementing regulations: 28 C.F.R. Part 36

10. IDEA  The IDEA makes available a free appropriate public education (FAPE) to eligible children with disabilities throughout the nation and ensures special education and related services to those children.

11. IDEA: Eligibility   To be eligible for special education under the IDEA, a child must have a disability under one of the following categories and must need special education services and related services:  • Autism Spectrum Disorder; Deaf or Hard-of-Hearing; Developmentally Delayed; Dual-Sensory Impairment; Emotional/Behavioral Disability; Hospital Homebound; Intellectual Disabilities; Language Impairment; Orthopedic Impairment; Other Health Impairment; Specific Learning Disabilities; Speech Impairment; Traumatic Brain Injury; Visual Impairment

12. IDEA and Extracurricular Activities (1of 2) • The IDEA, and its implementing regulations, mandates that school districts take steps, including the provision of supplementary aids and services determined appropriate and necessary to afford children with disabilities an equal opportunity for participation in those services and activities 34 C.F.R. 300.107(a). • 34 C.F.R. 300.107(b) defines “nonacademic and extracurricular activities to include, counseling services, athletics, transportation, health services, recreational activities, special interest groups, or clubs sponsored by the public agency. This list is not exhaustive, 71 Fed. Reg. 46,583 (2006). 

13. IDEA and Extracurricular Activities (2 of 2) • The IEP must include any supplementary aids and services that the student will need to participate in the activity 34 C.F.R. 300.107(a) and 71 Fed. Reg. 46,583 (2006).  • Independent Sch. Dist. No. 12, Centennial v. Minnesota Dep't of Educ., 55 IDELR 140 (Minn. 2010), cert. denied, 111 LRP 12933 , 131 S. Ct. 1556 (2011) • There is nothing in the IDEA regulations that requires IEP teams to exclude nonacademic activities from a student's IEP because they are not required to educate the student...The district in this case violated the IDEA by refusing to consider supplemental aids and services requested by a student's parents to enable her to participate in afterschool sports and clubs.

14. Examples of Supplementary Aids and Services under the IDEA • Interpreting Services • District's failure to provide a qualified interpreter for a deaf student during football practice as provided in the student's IEP violated the IDEA and denied the student an equal opportunity to participate as a football team manager. West Cent. Joint Servs., 111 LRP 11402 (SEA IN 07/23/10). • Behavioral Supports • District's failure to provide appropriate behavioral supports to a child that was excluded from attending a "good behavior" field trip due to ongoing behavioral issues within the classroom amounted to a denial of FAPE. Tahquamenon Area Schs., 115 LRP 23747 (SEA MI 04/21/15).

15. IDEA Limitations (1 of 2) A District may be place reasonable limits on the participation in extracurricular activities for safety reasons:  • Student with a visual impairment was not denied a FAPE when his band leader placed him in the flute section rather than the saxophone section (he played the saxophone) to minimize the risk of collision with other members if the band. Conecuh County Bd. of Educ., 23 IDELR 572 (SEA AL 1995). 

16. IDEA Limitations (2 of 2) • A student was not improperly excluded from nonacademic activities due to severe behavioral concerns In re: Student with a Disability, 114 LRP 53607 (SEA IL 11/17/14).  • ***Always, ALWAYS revisit the IEP and make sure that appropriate behavioral supports and services are in place to enable access and participation***

17. Section 504 and Title II of the ADA (1 of 3) • Section 504 is a federal law that prohibits any entity that receives federal financial assistance from discriminating against persons with disabilities  • Title II of the ADA is a federal law that prohibits state and local governments from discriminating against persons with disabilities. • In general, Section 504 and Title II nondiscrimination standards are the same, and in general, actions that violate Section 504 also violate Title II, and both apply to school districts. 

18. Section 504 and Title II the ADA ( 2 of 3) “Person with a Disability” means a person with a physical or mental impairment that substantially limits a major life activity; has a record of such an impairment; or is regarded as having such an impairment. The determination of whether a student has a physical or mental impairment that substantially limits a major life activity (and therefore has a disability) must be made on a case by case basis. The definition must be viewed to provide broad coverage of individuals. 

19. Section 504 and Title II of the ADA (3 of 3) • Section 504 regulations require that school districts provide nonacademic and extracurricular services and activities in such a manner as is necessary to afford disabled students an equal opportunity to participate. 34 C.F.R. § 104.37(a)(1) • Title II (ADA) regulations, at 28 C.F.R. § 35.130(b)(7), require public entities to make reasonable modifications to 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. This applies to the nonacademic and extracurricular activities operated by school districts.

20. Office of Civil Rights (OCR) Guidance on Extracurricular Activities  (1 of 4) • In 2013, OCR (responsible for enforcing Section 504 and Title II of the ADA) issued a guidance clarifying the existing obligations of school districts to provide students with disabilities an equal opportunity to participate in extracurricular athletics. In re: Dear Colleague Letter of Jan. 25, 2013, 62 IDELR 185 (OCR 2013).  • A school district must not exclude students based on stereotypes and assumptions.  • School districts must make an individualized inquiry to determine if there are reasonable modifications, or necessary aids and services, which would allow a student with a disability the chance to take part in the activity. 

21. OCR Guidance (2 of 4) Examples of reasonable modifications, or necessary aids and services: • Using a light along with a starter pistol so that a runner with hearing impairment can compete • Providing for, or assisting with, the administration of needed medicine like insulin so that a student with diabetes can take part in an after-school gymnastics club.

22. OCR Guidance (3 of 4) The requirement to provide an equal opportunity does NOT mean: • Changing essential elements that affect the fundamental nature of the game; • Giving a student with a disability an unfair advantage over other competitors; • Changing the nature of selective teams – students with disabilities have to compete with everyone else and legitimately earn their place on the team; or • Compromising student safety.

23. OCR Guidance (4 of 4) The Guidance also notes that a school district need not provide a modification, aid, or service if doing so would put an undue burden on its program.  In most cases, however OCR believes that providing reasonable modifications and necessary aids and services should not be unduly burdensome.

24. Before and After School Programs provided by School Districts • Section 504 and Title II of the ADA cover before and after school programs run by school districts.  • Section 504 and Title II of the ADA also apply to district-sponsored programs. 

25. District-sponsored before and after school programs  • OCR looks at factors that connect the district to the program in order to determine if Section 504 and Title II of the ADA apply including, but not limited to (see Evesham Township School District (OCR 2011))  • Direct or indirect financial support such as paying for the staff who run the program;  • Providing rent-free facilities on school property  • Using the District's website to advertise. • Following the District's policies, including disciplinary policy • Providing administrative services to the program 

26. Application of Section 504 and Title II of the ADA to before and after school programs (1 of 3) The regulation implementing Section 504, at 34 C.F.R. § 104.4(a), states that no qualified individual with a disability shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives financial assistance from the Department.  The regulation implementing the ADA, at 28 C.F.R. § 35.130(a), contains a similar provision. 

27. Application to before and after school programs (2 of 3) • The regulation implementing Section 504, at 34 C.F.R. § 104.38, provides that a recipient that provides day care may not, on the basis of disability, exclude qualified persons with disabilities and shall take into account the needs of such persons in determining the aid, benefits, or services to be provided (INDIVIDUALIZED INQUIRY) • Pursuant to OCR policy, when voluntary noneducational programs are offered on a free or tuition basis, qualified children with disabilities may not be categorically excluded from those noneducational programs on the basis of their disabling condition.  

28. Application to before and after-school activities (3 of 3) OCR policy further provides that parents of children with disabilities may not be required to provide their own aides and babysitters to care for their children, where the parents of nondisabled children are not subject to the same requirements; and parents of children with disabilities may not be charged more than the parents of nondisabled children are charged for their children's participation in the program

29. Reasonable Accommodations: Fundamental Alteration(1 of 2) • The ADA, at 28 C.F.R. § 35.130(b)(7), provides that a public entity is required to 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.   • The regulation implementing the ADA, at 28 C.F.R. § 35.164, does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity.  

30. Reasonable Accommodations: Fundamental Alteration (2 of 2) • The regulation implementing the ADA further provides that in those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity, a public entity has the burden of proving that compliance with this provision would result in such alteration.   • The decision that compliance would result in such a burden must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity; and must be accompanied by a written statement of the reasons for reaching that conclusion. • Pursuant to OCR policy, providing additional supervision in a daycare program, such as a one-to-one aide, will not ordinarily change the fundamental nature of a program that is designed to provide supervision for children. 

31. Reasonable Accommodations: Undue Burden(1 of 4) • The ADA also does not require a public agency to take any action that it can demonstrate will be an undue burden.  • Undue burden is defined as an action requiring significant difficulty or expense.  • Factors to be considered in assessing whether a burden is undue:  • The nature and cost of the accommodations needed;  • The overall financial resources of the facility providing the reasonable accommodations;  • The number of persons employed at such facility; 

32. Reasonable Accommodations: Undue Burden (2 of 4) • The effect on expenses and resources;  • The impact otherwise of such accommodation upon the operation of the facility • The overall size of the entity • The type of operation(s) of the entity, including the composition, structure and functions of the workforce; and the geographic separateness, administrative or fiscal relationship of the facility in question to the covered entity.

33. Reasonable Accommodations: Undue Burden (3 of 4) • The regulation implementing the ADA, at 28 C.F.R. § 35.130(f), prohibits a public entity from placing a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with nondiscriminatory treatment.  • OCR policy has established that in day care programs run by public educational entities, providing extra supervision to a child with a disability ordinarily will not unduly burden a recipient; and where undue burden has not been demonstrated, recipients must provide each child with services necessary to his or her meaningful enjoyment of the benefit offered.  

34. Reasonable Accommodations: Undue Burden (4 of 4) Further, the regulation implementing the ADA, at 28 C.F.R. § 35.164, provides that the decision that compliance would result in such a burden must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity; and must be accompanied by a written statement of the reasons for reaching that conclusion. 

35. Examples of Reasonable Accommodations  • Behavioral plan/reward system for children with behavioral concerns  • One-to-one aide for children with behavioral concerns or complex medical needs • Medical services to children with complex medical needs  • District denied a student equal participation in its after-school program by failing to provide any services for his colostomy bag while he attended. Alachua County (FL) Sch. Dist., 52 IDELR 204(OCR 2009).

36. Medical Services  Consider services that can be delegated to non-medical personnel that have been provided child-specific training by qualified medical personnel.  • See F.S. 1006.062: Administration of medication and provision of medical services by district school board personnel • Allows school board personnel to administer medication and provide noninvasive health related services to students that have been provided child-specific training by qualified medical professionals.

37. Limitations to Section 504 and Title II of the ADA  "Direct Threat" • The determination that a student poses a direct threat to the health or safety of others must be based on an individualized assessment that considers various factors such as: • The nature, duration and severity of the risk; • The probability that the potential injury will actually occur; and • Whether reasonable modifications of policies, practices, or procedures will mitigate the risk.

38. Extracurricular Activities provided by Other Public Entities and Private Entities   EXAMPLES  • Municipal Sports Activities • Summer Camps  • Privately-run Child Care Centers  • Religious-based programs***

39. Applicable Laws to Non-School District Programs • Title II of the ADA applies to public entities: • Any State or local government; • Any department, agency, special purpose district, or other instrumentality of a State or local government • Title II is intended to apply to all programs, activities, and services provided or operated by State and local governments. Section 504 of the Rehabilitation Act only applies to programs or activities receiving Federal financial assistance. Because many State and local government operations, such as courts, licensing, and legislative facilities and proceedings do not receive Federal funds, they are beyond the reach of section 504.

40. Is it a Public Entity? • Where an entity appears to have both public and private features, it is necessary to examine the relationship between the entity and the governmental unit to determine whether the entity is public or private. Factors to be considered in this determination include:  • Whether the entity is operated with public funds; • Whether the entity's employees are considered government employees; • Whether the entity receives significant assistance from the government by provision of property or equipment; and • Whether the entity is governed by an independent board selected by members of a private organization or a board elected by the voters or appointed by elected officials.

41. Case Example: Town of Rocky Hill, Connecticut  In 2012, the Department of Justice (responsible for enforcing Titles II and III of the ADA) entered into a settlement agreement with The town of Rocky Hill. The Town agreed it would modify its policies, provide ADA training to staff, and awarded $$$ compensation to the complainants after it refused to admit children using insulin pumps to a town operated parks and recreation program. 

42. Private Programs and Title III of the ADA Title III of the ADA applies to:  • Places of public accommodation • Commercial facilities • The obligations of Title III only extend to private entities. State and local government entities are public entities covered by Title II of the ADA, notby Title III. • Relevant Examples: Privately-run summer camps, child-care programs, and recreational activities

43. Application of Title III of the ADA   • Must not discriminate against persons with disabilities on the basis of disability and provide an equal opportunity to participate  • Cannot exclude children with disabilities from their programs unless their presence would pose a direct threat to the health or safety of others or require a fundamental alteration of the program. • Must make reasonable modifications to their policies and practices to integrate children, parents, and guardians with disabilities into their programs unless doing so would constitute a fundamental alteration. • Must provide appropriate auxiliary aids and services needed for effectivecommunication with children with disabilities, when doing so would not constitute an undue burden.

44. Religious Based Programs  • Programs actually run by religious entities such as churches, mosques, or synagogues are not covered by Title III.  • Programs (not actually run by the religious organization) that are operating on the premises of a religious organization, however, are generally not exempt from Title III.  • For example, if a private child care program is operated out of a church, pays rent to the church, and has no other connection to the church, the program has to comply with Title III but the, church does not.

45. ADVOCACY AND LEGAL STRATEGIES • Advocacy Letter • Request records (with signed consent of the parent) if necessary  • Request any denials in writing • District 504 Grievance Procedures • State Complaint  • OCR Complaint:  • https://www2.ed.gov/about/offices/list/ocr/complaintprocess.html • DOJ Complaint: https://www.ada.gov/filing_complaint.htm • Due Process (IDEA and Section 504) 

46. HYPOTHETICAL #1 A Local Hospital provides and administers a summer camp program for children called "Fun in the Sun." The Summer Camp is generally scheduled for eight weeks in the summer. Camp activities include games, sports, crafts, swimming and field trips. The parents of a child with Type I Diabetes who needs constant glucose monitoring and insulin administration sought to enroll her in the camp. The camp refused to enroll the child in the camp, stating that it does not have a nurse available to provide medical services. The mother of the child has to take FMLA to care for her child over the summer as a result. 

47. HYPOTHETICAL #2 A child in Sunshine School District with an IEP for Speech and Language Impairment is nonverbal and uses an assistive technology device to communicate with others. The child knows some ASL and wishes to participate in Chorus with his friends.  

48. HYPOTHETICAL #3 An after-school program in Sunshine District has a policy that student must be able to appropriately behave according to its code of conduct in an environment where supervision is provided at a 1:25 (Adult to students) ratio. A student with an IEP for Autism Spectrum Disorder and Language Impairment is suspended from the program due to disruptive behaviors such as elopement and throwing objects towards others. 

49. Resources  • http://www.fldoe.org/academics/exceptional-student-edu/ • https://www2.ed.gov/about/offices/list/ocr/index.html • https://www.ada.gov/ • https://www.wrightslaw.com/

50. Contact Us: 800.342.0823 www.disabilityrightsflorida.org