Playground Accessibility

I recently took my niece to play at a newly constructed elementary school playground. I noticed that much of the engineered wood fiber (EWF) had been kicked out of the areas below the swings, climbing equipment and slides. The EWF seemed fluffy” and not at all compacted. As I crossed the drifts and ruts in the playground’s surface, I was glad I was wearing sturdy laced athletic shoes. 

While watching my niece, I sat on a bench and visited with a mother whose 9 year old son who was seated next to her in a wheel chair. While we talked, she kept an eye on her 7 year old son and his friend who were running across the ramps of the colorful playground structure. She told me that she wished her 9 year old  could also enjoy the playground, but that despite his good upper body strength, he cannot wheel his chair across the wood chip surface without becoming stuck after a few feet. She said that she can no longer carry him to the swings, or take his wheelchair to the ramp of the playground structure, then carry him to his wheelchair. I explained to her that the Americans with Disabilities Act requires that school playground surfaces be accessible to children who use wheelchairs and the adults who supervise them.  I further explained that a complaint could be filed with the U.S. Department of Education Office of Civil Rights or the U.S. Department of Justice Disability Rights Section to enforce her son’s right to an accessible playground surface.

Here’s a quick explanation of the ADA law that applies to school playground surfaces, and some information about how find out about the installation and maintenance required in order for a particular EWF playground surface to be “ADA compliant.”

Applicable Law

Title II of the Americans with Disabilities Act (ADA) is a statute that prohibits nondiscrimination on the basis of disability by state and local entities including public schools.  It provides that no qualified individual with a disability shall, by reason of such 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 such entity. 

The ADA’s implementing regulations require each newly constructed or altered facility to be readily accessible to and usable by individuals with disabilities. State and local government facilities must follow the requirements of the 2010 Accessible Design Standards. 

A school playground that has been altered or newly constructed on or after March 15, 2012, must comply with sections 1008.2.6.1 and 1008.2.6.2 of the 2010 Accessible Design Standards.

1.  Section 1008.2.6.1 of the 2010 Standards addresses access for children with mobility disabilities and for adults who cross the playground to supervise children. It requires the playground ground surface to comply with ASTM F 1951 at the time of installation and throughout the life of the playground. The playground surface under and around play equipment must also comply with ASTM F 1292. 

2.  Section 1008.2.6.2 requires that playground surfaces comply with the shock-absorption standards set out in ASTM F 1292 from the time of installation throughout the life of the playground, and requires a school district to close any noncompliant playground until it is brought into compliance.

How to find out what is required in order for an EWF playground surface to be “ADA compliant?”

1.  Obtain from the school district the name. manufacturer and vendor of the EWF product used on the playground. 

2.  Go to the website of the manufacturer or vendor and download the ASTM lab test reports for the product. Sometimes these are called “wheelchair” and “head impact” reports.

3.  Read the lab test report to find out the conditions under which the EWF was tested and passed its tests for accessibility and "impact attentuation" (shock absorption).  The product must be installed and maintained in accordance with those conditions in order to comply with ASTM F1292 and F1951.  

Note:  All of the EWF product lab reports I have read state that the product complies with ASTM F 1292 and ASTM F 1951 only if it is installed in four inch layers and compacted between each layer until a 12 inch compacted depth is achieved.  

May an IEP Team "Disallow" a Student's Participation in a Nonacademic or Extracurricular Activity?

Occasionally I have cases in which an IEP team has refused to provide an accommodation or service for a student participating in a nonacademic activity on the basis that the IEP Team either believes the activity is not "educationally necessary," and/or, it has concerns about whether the student should be constrained from participating in the activity due to health, fatigue, and safety factors.

Let’s take, for example, "Abby," a student who qualified to be on her school’s mock trial team. She has nonprogressive muscular dystrophy, uses a wheelchair, and needs the same assistance for team practices and events as the assistance provided to her between 8:30 a.m.-3:45 p.m. each school day (e.g., assistance with the bathroom, carrying her backpack, laptop computer, books and papers, and getting things in and out of it, etc.  When Abby makes the team, instead of arranging for and scheduling the services she needs, the IEP calls a meeting and hands her parents an IEP amendment stating:

"Abby will be allowed to participate in nonacademic and extracurricular activities only to the extent that it is educationally necessary for her and the IEP team has determined that it is medically appropriate.  Abby will not participate in any nonacademic activities until she has been evaluated by an orthopedist, and the orthopedist has completed and returned to the IEP Team a report of the evaluation findings and responses to the team’s questionnaire.  After the orthopedist has submitted this information to the IEP team, it will meet and determine the nonacademic school activities in which Abby will be allowed to participate and the conditions of that participation."

When I read an amendment like this, I tend to conclude: (1) the school district is trying to avoid supplying and paying for the services that the student needs in order to participate in an activity for which he or she is qualified; (2) the school district is acting contrary to the federal statutes that protect the rights of students with disabilities to be educated to the maximum extent appropriate with nondisabled students, including participation in extracurricular and nonacademic activities. See, 34 C.F.R. §§ 300.320(a)(4)(ii), 300.107, and 300.117; and (3) that the school district has chosen to be part of the problem that Congress intended to cure when it enacted the Rehabilitation Act of 1973 (Rehabilitation Act), the Americans with Disabilities Act (ADA) of 1990, and the Individuals with Disabilities Education Act (IDEA). More specifically:
The plain language of IDEA regulations 34 C.F.R. §§ 300.320(a)(4)(ii), 300.107, and 300.117 establish that the extracurricular and nonacademic activities in which a student may participate are not limited to those activities that are "educationally necessary."

Neither the IDEA nor its implementing regulations confer any power on an IEP Team to "disallow" the participation of a student covered by the Act in an extra-curricular or nonacademic activities.
 
Neither the IDEA nor its implementing regulations confer any power on an IEP Team to make a determination of "medical appropriateness."

Section 504 of the Rehabilitation Act of 1973 provides: "No otherwise qualified individual with a disability . . . shall, solely by reason of his disability, be excluded from the participation in, or denied the benefits of, or be subjected to discrimination under any program or activity receiving federal assistance." 29 U.S.C 794(a).
 
Title II of the Americans with Disabilities Act of 1990 provides: "No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. 12132.

The School District made no offer to pay for the medically-unnecessary evaluation although when a School District requires such an evaluation for a student served under the IDEA, the evaluation must be provided at no cost to the parent (Raymond S. v. Ramirez, 918 F. Supp. 1280, 1293-1294 (N.D. Iowa 1996)), and the child’s parents may not be required to use their medical insurance to pay for the evaluation, or the co-pay amount. Id.

Special Education, Section 504 and the Americans with Disabilities Act

Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act of 1990 (ADA)(1) are broad civil rights statutes designed to promote equal access to and participation in programs and services. A school district that fails to provide comparable benefits and services in regard to its classes, services and other school programs violates Section 504 and ADA regulations.(2) These regulations require that students with disabilities receive benefits and services comparable to those given their nondisabled peers, and make it illegal for schools to discriminate on the basis of disability by:

∙ denying a student the opportunity to participate in or benefit from a benefit or service,
∙ providing an opportunity to participate or benefit that is unequal to that provided others,
∙ providing a benefit or service that is not as effective as that provided to others, or
∙ providing lower quality benefits, services or programs than those provided others.(3)

For benefits or services provided to be “equally effective,” they must afford students with disabilities an equal opportunity to obtain the same result, gain the same benefit, and reach the same level of achievement as other students.(4)

Section 504 regulations require public schools to provide a free appropriate public education (FAPE) to children with disabilities in accordance with its requirements. A FAPE under Section 504 means that the education and services provided to students with disabilities must meet those students’ needs as adequately as the needs of nondisabled students are met.(5) It is illegal under the Section 504 and ADA regulations for school districts to use policies, practices and procedures that, intentionally or not, result in discrimination. This ban includes those policies, practices, and procedures that have the effect of discriminating against students with disabilities, or have the effect of defeating or impairing the student's accomplishment of the objectives of the education program.(6)

In meeting their responsibilities to students with disabilities under Section 504 and Title II of the ADA, school districts must make all modifications and accommodations, and provide supplementary aids and services needed to ensure that students with disabilities can participate to the maximum extent possible in the school’s courses and programs.(7) If access is not provided, the student is deemed to be denied comparable benefits and services, in violation of Section 504 and the ADA.

(1) Section 504 of the Rehabilitation Act of 1973, as amended (Section 504), 29 U.S.C. 794 and Title II of the Americans with Disabilities Act of 1990 (Title II of the ADA), 42 U.S.C. 12131, protect persons with disabilities from discrimination on the basis of disability. The U.S Department of Education’s Office for Civil Rights (OCR) enforces Section 504 and Title II of the ADA, Under Section 504 and its implementing regulations at 34 CFR Part 104, children with disabilities in public elementary and secondary education programs operated by recipients of Federal financial assistance are entitled to a FAPE in accordance with the Section 504 regulations at 34 CFR 104.33-104.36. With respect to elementary and secondary education programs, OCR generally interprets Title II of the ADA and its prohibition against discrimination on the basis of disability in a manner consistent with Section 504 and its regulations.

(2) In addition, the IDEA requires states to develop “performance goals and indicators” for children with disabilities that are consistent, to the maximum extent appropriate, with the standards set by the state for all students. 20 U.S.C. §1412(a)(16).

(3) 34 C.F.R. §104.4(b)(1) (§ 504 regulation); 28 U.S.C. §35.130(b)(1) (ADA regulation).

(4) 34 C.F.R. §104.4(b)(2); 28 C.F.R. §35.130(b)(iii).

(5) 34 C.F.R. §104.33.

(6) 34 C.F.R. §104.4(b)(4); 28 C.F.R. §35.130(b)(3).

(7) See 42 U.S.C. 12131(2); 34 C.F.R. 104.4(b); 28 C.F.R. 35.130(b)(7); Alexander v. Choate, 469 U.S. 287, 300-01 (1985); Thomas v. Davidson Academy, 846 F. Supp. 611 (M.D. Tenn. 1994).

Office of Civil Rights Focuses Public Schools’ Attention on Students’ Rights Under the Americans With Disabilities Act and Section 504

On January 19, 2012, in a letter to public schools, the U.S. Department of Education (USDOE) announced that it is stepping up its efforts to ensure that public schools are complying with the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973.

On behalf of the USDOE, Russlynn Ali, Assistant Secretary for Civil Rights (OCR) wrote that although the 2008 amendments to the ADA took effect three years ago, the OCR has become aware that public schools need guidance in regard to their related responsibilities. She stated that the OCR will be working to eliminate disability discrimination in public elementary and secondary schools by investigating complaints, conducting compliance reviews, issuing policy guidance, providing technical assistance, and working closely with the Department of Justice. For additional information, she referred schools to the USDOE’s publication titled “Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools.” That publication addresses the broadened definition of disability and the changes made by the 2008 amendments, explains how the amendments affect Section 504, and explains the obligations of school districts under Section 504 and the AEA.

The 2008 amendments broadened the definition of disability that schools must honor and asked districts to simplify the special education evaluation process. Specifically, they guaranteed that students may qualify for disability services even if they have a condition that affects them intermittently. In addition, they make it clear that a student may be eligible for special education services even if they are already performing well in school so long as they have an impairment that “substantially limits a major life activity,” according to documentation included in the Education Department correspondence. In effect, the amendments broaden the scope of students who school districts are required to evaluate for special education services. Additionally, the amendments state that the ameliorating effects of mitigating measures (other than ordinary eyeglasses or contact lenses) may not be considered in determining whether an individual has a disability; expands the scope of “major life activities” by providing nonexhaustive lists of general activities and major bodily functions, clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and clarifies how the ADA applies to individuals who are “regarded as” having a disability.