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Compliance Issues for the Coming Academic Year

The summer is over and we are right back into the fray….

Here are few of the compliance issues that are raising significant concern for the coming academic year.

Documentation Standards

In the spring of this year AHEAD published revised guidelines on documentation practices (Supporting Accommodation Requests: Guidance on Documentation Practices April 2012). The need for revised guidance was explained as follows: “This revised guidance is necessitated by changes in society’s understanding of disability, the 2008 amendments to the Americans with Disabilities Act, and the updated regulations and guidance to Title II and III of the ADA.” Of significant interest, is the part of the guidelines that addresses the sources of documentation for “substantiating a student’s disability and request for particular accommodations.” The sources are presented as follows:

  • Primary Documentation: Student’s Self-report
  • Secondary Documentation: Observation and Interaction
  • Tertiary Documentation: Information From External or Third Parties

The clear elevation of the importance of student self-reporting coupled with the suggested lessening of the importance of external sources of documentation, including the assessment of professionals, is interesting food for thought.

Consider the above in conjunction with the following recent court decisions:

Carlson v. Carroll University, No. 09-C-551 (E.D. Wis. 2011) – The court rejected the claims of a student who challenged academic dismissal from a Physical Therapy Program. The student argued, in part, that the University was in violation because it failed to provide her accommodation related to language based developmental disorders, ADHD and a depressive disorder. During her tenure the student sought and received academic adjustments related to a diagnosis of ADD only. However, the student argued that her extensive “self-reporting” of academic struggles and difficulties put the program on notice and additional accommodations should have been offered to her on that basis.

The court in this case ruled that the student’s “self-reporting” alone was not sufficient to establish a need for additional or different accommodations. The court specifically ruled that the student has failed to meet her obligation of providing the University objective medical documentation reflecting a proper diagnosis of a learning disorder and the specific accommodations needed. The court also found acceptable the University’s policy of requiring students to provide “recent, relevant and comprehensive medical documentation of the disability and the disability’s impact on the student’s participation in a course, program, or activity.”

Argenyi v. Creighton University, No. 8:09CV341, (D.C. Nebraska 2011) – A student with a hearing impairment with cochlear implants, whose history of accommodation included using “cued speech”, hearing aids, and CART services, sought interpreters, CART services and an FM system as accommodations once enrolled in medical school. The medical school primarily offered the use of a FM system. The court ruled against the student noting, in part, that the fact that medical professionals state that a student would “benefit” from a particular accommodation does not establish that the student “needed” them. The court ruled that the student had failed to establish that he would be “effectively excluded” from the medical school if he was not provided the accommodations he requested. What is significant about the court’s position in this case is that, the student’s own expressions of need and his description of the impact on his educational experience was rejected in favor of the opinions of the medical professionals. The court went so far as to label the student’s evidence of need as merely “self- serving allegations.”

Thus, the revised AHEAD guidelines give rise to some significant compliance questions. Specifically:

  • What are the compliance consequences of taking the minimalistic, student focused approach they are advocating; both in practical terms as well as philosophical terms?
  • Do OCR rulings, DOJ settlements and court decisions establish the legitimacy of these guidelines?
  • How do service providers satisfy the obligation to provide “effective” accommodations and keep faith with these guidelines?

Join us for Best Practices Series 4 where our first webinar will tackle this on-going Documentation Debate. We will address these and other questions concerning the rights and responsibilities of institutions as well as students concerning documentation.

Service/Assistance Animals

The revised regulations have given rise to a number of uncomfortable questions and dilemmas. The issues in controversy include:

  • Methods of Administration: What methods can colleges and universities used to manage and control the presence of animals on campus (casual visitors versus members of the community)? For example, are students required to enroll or submit information or documentation to the disability services office?
  • Psychiatric Service Animals: How should entities determine whether the animal is a service animal or a comfort/companion animal? What happens if the student insists that the animal must accompany then outside the housing environment?
  • The Housing Dilemma: How should colleges and universities balance ADA, Section 504 and FHA regulatory mandates? DOJ’s suit against the University of Nebraska regarding the access of assistance animals, emotional support or comfort animals is the key component in this debate (scheduled court date is June 2013).

Subscribers to DisabilityDirectResponse will find an updated discussion of Service Animals and the revised regulations on the site. We will also be conducting a webinar entitled: The Service/Assistance Animal Question as a part of Best Practice Series 4.