There are lessons to be learned about documentation standards and procedures requests in the latest legal battle between the federal government and a testing entity.
On October 18, 2012, a federal judge permitted the Department of Justice (DOJ) to intervene in a lawsuit filed against the Law School Admissions Council (LSAC). It is alleged that the Council’s policies, practices and procedures regarding the administration of the Law School Admissions Test (LSAT) discriminates against applicants with disabilities. (See The Department of Fair Employment and Housing v. Law School Admission Council, No. CV 12-1830-EMC).The alleged violations of Title III include:
With respect to documentation, DOJ takes exception to the following practices and procedures used by the Council:
DOJ specifically noted that applicants with extensive histories regarding both the diagnosis of a disability, as well as, the provision of accommodations in similar circumstances were frequently denied accommodations. It was also noted that, in addition to using evaluation standards for reviewing documentation submissions that are unclear, the Council’s denial letters are “cursory” and fail to give applicants a clear understanding of what is missing or what needs to be done to correct deficiencies in order to obtain test accommodations. DOJ also remarked upon the enormous expense incurred by applicants in order to meet the Council’s three – five year ago of documentation requirement. DOJ argues that the LSAT through its policies, practices and procedures discriminates against individuals with disabilities by “failing to administer the LSAT in an accessible manner” and utilizing a “flagging policy”.
DOJ’s brief includes detailed descriptions of the experiences of eight applicants. The complete brief can be founded on the Department of Justice’s ADA site, www.ada.gov.
One of the difficulties that institutions have in properly managing faculty participation in the accommodation process is the failure to provide direction, support and guidance to faculty members and adjuncts regarding both their responsibility and the rights of students with disabilities. To varying degrees many colleges and universities are guilty of not striking the necessary balance between traditional academic freedom protections and federal compliance mandates. Institutions cannot leave the matter of whether and to what degree students with disabilities are accommodated solely to the discretion of individual faculty members. OCR has ruled that postsecondary institutions are required “… to take steps as necessary to ensure that qualified students with disabilities are not subjected to discrimination because of the absence of educational auxiliary aids. University of Guam, No. 10072030 (OCR 2010)
There are a number of recent OCR rulings and court decisions that focus on the dynamics of the faculty-student relationship. For example:
Halpern v. West Forest University Health Sciences, 669 F.3d 454 (4th Cir. 2012) – The court responded to the assertions of a student with ADHD and an anxiety disorder that the University was required to accommodate his difficulty with meeting the professional standards adopted by the Medical School. The student’s first two academic years were marked by repeated instances of unprofessionalism (e.g., abusive behavior; lack of interpersonal skills; unapproved absences; resistance to feedback; and lack of truthfulness). When confronted regarding his behavior, the student asserted that his conduct was the result of the effects of his ADHD medication.
Following an approved medical leave to address the side effects of his medication, the student continued to exhibit unprofessional behavior. The student did not seek accommodations (test accommodations) until his third year in the program. Ultimately, in response to additional instances of unprofessionalism, the School’s academic appeals committee recommended that the student be dismissed from the program. While maintaining that he was only guilty of isolated instances of unprofessionalism, the student asserted that he should be permitted to continue in the program under a remediation plan to address his behavioral problems. The plan he proposed was that he would participate in ongoing psychiatric treatment, as well as a program for distressed physicians. He also suggested that he be placed on strict probation.
The court in upholding the School’s decision to not grant the requested accommodations made several important pronouncements. Specifically:
North v. Widener University, No. 11-6006 (E.D. pa. 2012) – A University argued that a student could not bring a complaint of being treated differently on the basis of disability because he had never officially disclosed that he had a disability. The court rejected the University’s claim by noting “[N]othing in Section 504 requires a student with a disability to provide official notification of disability in order to bring a claim for disability discrimination.” The court further noted that the fact that the student was told by a faculty member, who served as his advisor, that he should not disclosed that he had a disability because it would be “viewed as a sign of weakness and unsuitability for the program”; potentially established that “the program suffered from a culture of discrimination.”
University of Houston, No. 06112030 (OCR 2011) – A student was provided an accommodation form which listed an approved accommodation as “consider extended assignment deadlines, if necessary.” One of the professors the student presented the form to refused to sign it and expressed the opinion that the accommodation was “too general, open ended, and unreasonable.” When the student sought redress from the disability services office, he was advised by the Director that “professors … were not obligated to grant accommodations… and such a decision was to the professors’ discretion.” OCR took issue with the both the practice of permitting faculty members to make unilateral decisions concerning the accommodations students receive, as well as the fact that the University had not adopted and implemented a procedure to address situations where the disability services office and professors disagree about the accommodations to be provided students.
For a full discussion of the role of faculty in the accommodation process, join us on November 13, 2012 for the next webinar of Best Practice Series 4: Faculty Behavior: Managing Faculty Participation in the Accommodation Process.
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.
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:
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:
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.
The revised regulations have given rise to a number of uncomfortable questions and dilemmas. The issues in controversy include:
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.
With the ongoing and enormous attention enforcement agencies are devoting to access to emerging technology, it is easy to assume that facilities access in no longer a significant compliance concern for colleges and universities. However, one need only examine recent OCR rulings and court decisions addressing charges of denial of facility access to discover that postsecondary institutions are still guilty of violating what many would assert are basic and clear compliance mandates. The Department of Justice’s 2010 ADA Standards for Accessible Design (effective March 15, 2012) coupled with the upcoming revision to the Section 504 regulations to formally adopt the 2010 Title II ADA standards in lieu of Uniform Federal Accessibility Standards (UFAS) will likely spark renewed interest in the accessibility and usability of college and university facilities. Therefore, now would be a good time to take a look at the compliance areas that seem to present the greatest challenges for colleges and universities, as reflected in recent agency rulings and judicial decisions. The next several editions of Salome Says will be devoted to facilities access issues beginning with Parking and Accessible Paths of Travel.
The majority of parking issues arise in the following areas: the number and size of accessible spaces; signage; the enforcement of parking restrictions; and the path of travel from the parking area to adjacent facilities. The cases reviewed reflect that institutions consistently fail to ensure that parking areas contain a) the minimum number of accessible spaces required pursuant to ADAAG and/or UFAS standards, as well as b) spaces 96 inches wide that are necessary to accommodate vans (See University of Maryland, No. 03102046 (OCR 06/2010) and University of Mississippi, No. 06102080 (OCR 09/2010); and Gadsden State Community College, No. 07-09-2006 (01/2010)).
The signage cases generally involve the symbols identifying accessible spaces being mounted on the ground rather than at the required height of at least 60 inches or otherwise being obstructed. (Remington College, No. 15-10-2107 (OCR 12/2010) and Clayton State University, No. 04-09-2088 (OCR 09/2009)) Enforcement cases involved institutions failing to take action against those parking in spaces without proper credentials, as well as, maintenance staff that either obstruct access to spaces during snow removal or fail to keep spaces clear during winter weather. (See University of Mississippi, supra and Remington College, supra).
It is important that routes from designated accessible parking spaces be “located closest to the nearest accessible entrance on an accessible route.” (UFAS 4.5.1). The surface of accessible routes must be stable, firm, slip-resistant and not impede the travel of those with physical disabilities. Additionally, accessible entrances to building should be clearly identified and marked with signage directing individuals from non-accessible entrances to the accessible entrance. Generally path of travel cases involve:
(See Remington College, supra; Gadsden State Community College, No. 07-09-2006 (OCR 2010); Clayton State University, supra and Our Lady of the Lake University, No. 06082171 (OCR 2009)). However, the most significant recent cases involving path of travel violations, raise some unique issues.
In Montgomery College (Rockville), et.al, No. DKC 09-2278 (D. Md. 2011), a student who had difficulty getting to her classes because the closest accessible parking was eliminated by construction, was injured walking from her class when the College refused to provide transportation back to her vehicle. The court ruled that the College’s refusal to address the obvious access problems caused by the construction meant that the College was at risk of being found to have “intentionally violated the ADA and the Rehabilitation Act by demonstrating a deliberate indifference when they had notice of the potential risk of their decision… .” The court ruled that the College arguably had a duty to accommodate the student’s known disability, i.e., her difficulty walking, by providing her transportation.
In a second case, Shasta-Tehama-Trinity Joint Community College District, No. 09-09-2068 (OCR 2009), the College moved all accessible spaces following the recommendation of a consultant. As a result, a student with a disability, who previously had easy access to an adjacent walkway leading to her destination, was denied access because the walking distance from the new placement of accessible spaces was doubled and too far for her to walk. OCR ruled that the College’s obligation under the law was not satisfied merely because the new spaces were arguably ADAAG-compliant and additional steps were necessary. OCR specifically ruled that “[I]n any individual case, in order to achieve program access, absent a fundamental alteration or undue burden defense, something more or different from ADAAG compliance may be necessary for a recipient to accommodate a particular disabled person”. In this particular case, OCR suggested that the College either reserve a space near the specific entrance for the student or work out another mutually agreeable alternative with her.
NOTE: For guidance in developing a plan for evaluating facilities access, subscribers to DisabilityDirectResponse.com should consult the Assessment Blueprint in the Compliance Library.
What should be the response to accommodation requests made by parents on behalf of their son or daughter?
Can parents request accommodations on their son or daughter’s behalf without the student’s agreement and/or participation?
In Brown Mackie College, 03-04-2084 (OCR 12/10/2004), a parent requested accommodations on his son’s behalf but without his son’s active involvement. In that case, OCR ruled that the obligation of the institution to act was not triggered because the student failed to initiate the process by providing notice of his need for academic adjustments and making a specific request for accommodations. OCR has consistently ruled that it is the student’s responsibility to request academic adjustments, to adhere to the institution’s accommodation procedures and to actively participate in the process. The demands of parents do not obligate institutions to act if students fail to satisfy that responsibility. (See Brown Mackie College, supra and Texas Southern University, No. 06-02-2078 (OCR 12/06/2002)).
Therefore, if an institution is not obligated to act when a student simply never communicated a need for accommodations to the proper officials; it stands to reason that if the student objects to, denies the need for or refuses offers of accommodations the parents’ assertions that the institution must or should provide accommodations cannot trigger an obligation to act on the part of the institution. Institutions are not permitted to unilaterally act with respect to the provision of accommodations. They cannot require students to accept academic adjustments, auxiliary aids and services when students have not requested such. Northwestern Michigan College, No. 15-02-2047 (OCR 02/10/2003)).
Can parents use the fact that their son or daughter signed a written consent under FERPA to provide them information regarding their children’s educational services to insist that they are entitled to participate in all meetings to determine what accommodations are provided and/or to directly interact with faculty?
OCR has consistently ruled that institutions can adhere to policies and procedures that specifically require that students initiate the process, be active participants in the accommodation process, and maintain direct interactions with responsible institution officials. (See Doane College, No. 07092063 (OCR 2009), University of Notre Dame, No. 05-04-2113 (OCR 2004) and Brown Mackie College, 30 NDLR 207 (OCR 2004)) It is appropriate for institutions to insist that the individual who is enrolled, i.e., the student, be the frontline in these matters. Additionally, asserts by parents that their son or daughter cannot take responsibility for managing the accommodation process raises issues regarding the qualified status of the student.
It is also important to remember that written consent provided by students under FERPA only entitles parents to information regarding their sons and daughters educational program. Such consent does not entitle parents to participate in the process. Further, a grant of consent under FERPA only permit institutions to provide information to parents it does not require action on the part of institutions.
Subscribers to DisabilityDirectResponse.com can view a full discussion of best practices and a summary of pertinent cases and agency rulings on the site in the Compliance Library under Parental Involvement.
The settlement agreement in the Penn State University case should be used as a guide by institutions addressing issues of access to technology. The significance of this settlement agreement is that it checks all of the important boxes for institutions either struggling to meet their compliance obligations or needing guidance regarding the important areas to review when assessing their compliance level. Specifically:
Lack of an institutional approach to compliance – Access to technology is an institution wide issue. It comprises all of the means and methods in which the institution employs technology in delivering it services, opportunities and benefits. Access to technology for individuals with disabilities cannot be limited to a consideration of adaptive/assistive technology offered as an academic adjustment for students with disabilities and/or the specific accommodations offered to individual employees.
The absence of accessibility based technology policies and guidance – Institutions must adopt policies and procedures that embrace the obligation to provide access to technology, in all of its uses, for individuals with disabilities. Compliance expectations, goals and requirements should be identified for all pertinent departments, offices and work units of the institution. Those policies and procedures should specifically identify those responsible for implementation, assessment and enforcement.
Adoption of meaningful action steps – Institutions must provide the necessary support and resources to achieve compliance. Such steps include employing individuals who have the necessary expertise regarding programming, as well as, the uses of adaptive and assistive technology; including accessibility strategies and needs at the planning and design of significant projects; implementing processes and procedures to achieve compliance strategies; investing the necessary resources to fund accessibility projects; and providing necessary training and guidance to pertinent program participants.
Managing third party relationships – Institutions should not enter into agreements with third parties providing for the delivery of services, programs and/or opportunities to their students, program beneficiaries and employees without investigating the degree of access afforded individuals with disabilities. It must be assured either that there is full accessibility or that alternatives means of providing access are available that would provide individuals with disabilities the ability to acquire the same information, engage in the same interactions, and enjoy the same services with substantially the same ease of use. Agreements that do not satisfy these conditions should not be entered into absence extraordinary circumstances.
Pursuant to 34 C.F.R. Sec. 104.22(f) colleges and universities are responsible for implementing policies and procedures “to ensure that individuals with disabilities can obtain information regarding the existence and location of services, activities and facilities that are accessible to and usable by them. The term ‘activities’ encompasses all extracurricular offerings and events that take place at [colleges and universities], such as theatrical performances, concerts, lectures, athletic events, student organizational meetings, or any other activity, whether sponsored by a department, an approved student organization, or a residential house.”
Processes and procedures that merely focus on assisting sponsoring entities in fulfilling the responsibility to provide access as events are planned and organized are not sufficient. There also must be processes and procedures directed towards advising students, prospective audience members and participants regarding accessibility of the campus as well as specific events, activities, performances, etc… . Individuals should be provided information concerning accessible locations, activities and facilities. Additionally, notice should be provided concerning the offices and/or individuals who should be contacted regarding accommodation needs.
Procedures should be adopted to a) disseminate and make readily available accessibility information to students, as well as, members of the public seeking to attend events and activities; and b) ensure that sponsoring entities identify a contact person for providing accessibility information and responding to accommodation requests. It is not enough for institutions to publish such procedures. Institutions must actively enforce them to ensure that they are uniformly followed.
The fact that the institution has a ADA or Disability Coordinator who assumes responsibility for being a source for accessibility information and/or arranges for accommodations when an individual makes a specific request does not satisfy the institution’s compliance obligation. OCR has rule that the availability of one person does not satisfy the statutory obligation to put in place “a procedure ensuring that persons with disabilities can obtaining information regarding the existence and location of facilities that are accessible.”
(See Harvard University, No. 01-03-2053 (OCR 2006)).
There is a war being waged over the progression and evolution of technology as an effective means of accommodation for individuals with disabilities. While institutions, agencies and public entities are in love with technology – its ease of use, efficiency, cost saving and marketing reach; those same institutions, agencies and entities are significantly less enamored when the cost and effort of providing access to technology for individuals with disabilities is the subject. Consequently, the degree to which access to technology is being provided to individuals with disabilities does not equal the speed and extent to which technology is being embraced and advanced for the general population.
This conflict is being waged on so many fronts, at this point in time; it is becoming increasingly difficult to keep on top of all of the players and all the issues in controversy. The most recent entry into the fray is Jones v National Conference of Bar Examiners, No: 5:11-cv-174 (DDC Vermont). In Jones, the Department of Justice is continuing in its efforts to firmly solidify the Enyart v. National Conference of Bar Examiners, Inc. 630 F.3d 1153 (9th Cir. 2011), Bonnette v. District of Columbia Court of Appeals, No. 11-1053 (CKK), 2011 WL 2714896 (D.D.C. July 2011) and Elder v. National Conference of Bar Examiners, No. C11-0199 (N.D. Cal. 02/16/2011) rulings in which the courts have stated that the proper standard for determining appropriate accommodations for test takers is not a “reasonable/effective” standard; but rather, a “best ensure” standard.
In Elder, the primary controversy involved the desire of a blind test applicant to take the Multistate Bar Examination using adaptive technology (i.e., JAWS software); rather than, the live reader that the NCBE offered. The pertinent facts of the Elder case were as follows:
The court based its decision on the Department of Justice’s (DOJ) interpretation of the applicable provision of the statute, addressing the obligation of testing entities (42 U.S.C. Sec.12189). DOJ took the position that the obligation of testing entities is to “assure that …[t]he examination is selected and administered so as to best ensure that, when the examination is administered to an individual with a disability…the examination results accurately reflect the individual’s aptitude or achievement level …, rather than the individual’s impaired sensory, manual or speaking skills …” (28 C.F.R. Sec. 36.309(b)(1). The court ruled, in pertinent part, that the facts established that the use of a live reader “would not make the California bar accessible to [the applicant].”
When faced with a similar set of circumstances in Enyart involving the use of JAWS and Zoom Text, the court’s opinion on the matter is clearly reflected in the following statement: “ [A]ssistive technology is not frozen in time: as technology advances, testing accommodations should advance as well.” Additionally, in Bonnette, the court noted that “The fact that [the applicant] could take the [test] using a human reader does not mean that this accommodation would best ensure that her score reflected her achievement level rather than her visual impairment; [the applicant] is entitled to an auxiliary aid that allows her to perform at her achievement level, not just one that might be good enough for her to pass.”
The Jones case concerns an applicant request to use Zoom Text and Kurzweil 3000 and DOJ has submitted a Statement of Interest brief in the case that presses the agency’s interpretation of the statute and the obligation owed to test applicants to best ensure an accurate measure of achievement. Therefore, it appears that DOJ is gaining momentum in its effort to establish a compliance obligation that fully embraces the evolution in technology.
Clearly the question of what satisfies the obligation to provide “effective communications” for test takers has become a high stakes game. The developments described above, pose some interesting questions for postsecondary institutions regarding the extent to which the preferences and experiences of individuals with disabilities should be considered. For example, the recent suit against Florida State University, referenced in New and Noteworthy, involved some of the same access issues concerning the use of human readers. Further, it is important for postsecondary institutions to greatly expand the use of advanced and evolving technology in designing access and accommodation options and strategies.
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