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Compliance Alerts

Summaries of recent legal developments in the field.

Proper Policies and Procedures are Imperative

While colleges and universities have the right to refuse to provide academic adjustments that represent a fundamental alteration, the failure to follow proper procedures in reaching such a determination will result in a violation finding even if the actual determination is arguably correct. That is the lesson that one college learned in a recent case.

Gateway Community College, No. 08-16-2199 (February 2017)

Facts: Student enrolled in a Health Unit Coordination certificate program. She requested and was approved to receive the following academic adjustments: extended test time (1.5) and distraction reduced environment. She filed a complaint concerning three issues regarding her accommodation request.

Issue 1: Pursuant to the College’s procedures, students were required to request accommodations for each semester and obtain a faculty notification form (NF) that would list for the instructors the approved accommodation. For the semester in question class began on January 20th, the student made her request on January 21st, the disability services office notified the student that the faculty notification forms were ready on February 1st and the instructors received the forms on February 4th.The student had been provided accommodations the previous semester. Because the student had received accommodations the previous semester, the disability services staff advised her instructors prior to producing the notification forms that the student was entitled to accommodations. Instructor A provided the academic adjustments prior to receipt of the notification form while Instructor B declined to do so.

OCR ruling: It was unreasonable for Instructor B to refuse to provide the approved accommodations to the student prior to receiving the notification form. OCR noted that Instructor B was clearly aware of the approved academic adjustments on January 26th when she expressed objections to providing them for transcription tests.

Issue Two: The student was denied approved test accommodations when she was required to take a quiz in class without the necessary extended time. When the student complained, the instructors offered her the opportunity to retake a revised version of the test the following day.

OCR ruling: The College’s attempt to remediate the failure to properly accommodate the student, was not a legitimate offer to the student. OCR ruled that it was unreasonable to give the student one day to retake the test particularly when the day they insisted she had to take the test was not a day she normally had classes.

Issue Three: Program instructors declared that students could not receive accommodations on any skilled-based tests that measured core competencies, including transcription tests. They stated that the transcription tests simulated what happens on a nursing unit and students were required to ask certain questions of the instructor who was playing the role of a nurse during the tests. The instructors pointed to the fact that the student, was being asked to demonstrate how she would handle orders in a hospital setting within a specific time frame as the justification for denying the approved test accommodations.

OCR ruling: A blanket policy of denying academic adjustments to students without an institutional determination regarding the existence of a fundamental alteration and the continuation of the interactive process to determine whether there exist other possible appropriate academic adjustments as an alternative is a violation of both Section 504 and Title II. OCR noted that the College had a policy and procedures for situations where faculty felt accommodations would alter an essential academic requirement that was not implemented and followed. Further, there was no consideration given to whether there were alternative academic adjustments that could be provided the student.

Best Practices Webinar Series 8

In Best Practices Webinar Series 8 we discuss commonly used administrative practices, such as those described in the case below, that OCR has found to be discriminatory.

Angeles Institute, No. 09-14-2038 (OCR May 2015)

OCR took issue with a Nursing Program’s practice of soliciting information regarding the existence of medical conditions during the admissions process. OCR labeled the Assessment Form, which program administrators used to obtain information regarding disabilities and/or limitations that they felt would prevent a student from providing safe patient care to be an unlawful preadmission inquiry. OCR also expressed concern regarding the use of a Commitment Contract that required students to submit a full medical release upon enrollment if they indicated that they had a medical condition.

(Subscribers to DisabilityDirectResponse.com can read a full summary of this case in the Recent Published Content Section.)

Click Continue for more Webinar info.

Managing the Testing Environment Q and A

Answers to Managing the Testing Environment Questions

1. The student's accommodation is extra time on exams. If the student decides s/he wants to take the exam in the classroom instead of the Testing Center, does the instructor have to make time and find a place for the student to complete the exam? Do instructors have the prerogative to mandate the use of the Testing Center because they do not want to arrange and/or supervise testing accommodations?

First, it is not appropriate to leave such decisions to instructors. Remember, faculty should not be permitted to make unilateral decisions regarding the accommodations students receive. See Southern New University, No. 01-14-2016 (OCR May 2014). The issue is not one of instructor prerogative; but, rather what provides effective accommodations for students with disabilities while not subjecting them to unnecessary different treatment. It is impermissible to adopt an administrative rule that under all circumstances would deny a student the right to take his/her exam within the department environment. The institution is obligated to conduct an individualized assessment to determine what would be an effective accommodation and absolute rules do not permit you to conduct the necessary individualized assessment. If a student objects to taking tests or exams in the Testing Center s/he should have the right to a fair hearing on the matter. For example, if an instructor entertains questions during the exam and students with disabilities taking the exam in the Testing Center do not have the opportunity to either ask questions or to benefit from answers given to others because they are not in the class then that is a legitimate complaint or concern. The important point is if there are circumstances under which the student can only be provided effective accommodations within the classroom environment then steps must be taken to accommodate the student in that environment.

2.What is the proper response to a student approved for extended time for quizzes and tests (double time) who subsequently argues that he is entitled to extended time on assignments? The class is an accelerated distance education class that is 8 weeks in duration and requires that students participate in discussions, respond to classmates and write a research paper.

It is not clear from the question whether the student provided documentation that supported the need for extended time on assignments. The mere fact that the student is approved for extended time on tests does not establish entitlement to extended time regarding all academic work and projects. Second, if the provision of extended time results in the student not being able to satisfy essential course requirements (i.e., participate in class discussions and/or projects, complete a research paper that is a necessary part of peer review and discussions, etc.) then the provision of extended time, under such circumstances, would not be reasonable. Therefore, important questions that need be answered are a) what extended time, if any, does the documentation support and b) what is the impact of providing extended time on the student’s ability to meet essential course requirements?

3.Is it fair to place a student who suffers has claustrophobia in a room less than 10 by 10 for testing in order to meet the student’s need to listen to music?

This situation can only be resolved through proper use of the interactive process. In discussions with the student you should resolve whether the size of the room is problematic and/or whether alternative accommodations such as the student wearing headphones in a larger room with other test-takers, being permitted to take breaks to step out of the room or leaving the door open would work.

4a.Can we institute a “no tolerance” policy for cheating in our Testing Center, (i.e., students found guilty would forfeit the rights to accommodations for cheating)?

 b.If a student cheats do they forfeit that accommodation for that class and that semester overall?

Students with disabilities are not exempt from the application of the disciplinary codes of conduct and standards of behavior that all students must adhere to. Therefore, the institution should enforce the same rules and apply the same penalties as all students are subjected to who are accused of and subsequently found to be guilty of cheating. However, to deny students with disabilities “found guilty” of subsequent accommodations would, arguably be imposing an additional and extremely severe penalty on those students which is not available as a sanction against non-disabled students. Query: Are non-disabled students denied the right to ever take another exam or test after they serve imposed disciplinary sanctions for cheating? Arguably, your “no tolerance” policy is in effect a measure that would deprive students with disabilities of the right to be appropriately and fairly tested in the future. It goes well beyond the sanctions imposed upon non-disabled students and sets the institution up for a charge of discrimination based upon different treatment.

Any further action taken must be viewed not from a punitive perspective; but, from the perspective of fashioning effective accommodations. To wit, student with disabilities are obligated to exercise due diligence to make the accommodation process work; which includes using accommodations properly. Thus, you can argue that the student’s behavior warrants revisiting the question of what would be effective accommodations including the manner in which s/he receives accommodations in the future. However, if you choose such an approach, any alterative means of accommodating the student that you identify must be effective.

5a.If the Testing Center is limited on space and the student submits their request without appropriate notice, how do we address accommodating the student appropriately?

 b.So, do we now need to essentially need to have walk-in testing centers? Students can (and, in my experience, quite often) opt to take the exam with the class like any other student. Isn’t it reasonable to ask students to give us advance notice so that we’re not holding limited space unnecessarily? And what about reasonable notice for faculty as to whether or not they need to send an exam to the testing center?

The methods of administration that an institution chooses to use in providing test accommodations to students with disabilities is within the discretion of the institution with the provisos that students must be provided effective accommodations and the process and procedures utilized may not be unduly burdensome for students. OCR ruled in Florida Atlantic University, No. 04-11-2068 (OCR 08/2011) that the University’s test accommodation procedures that required the student to fill out a test accommodation form a week prior to every quiz or exam in each class; although previously approved for academic adjustments at the beginning of the semester, constituted “noncompliance with Section 504 and Title II.” OCR specifically noted that the student “should not have to fill out a testing accommodation form a week prior to each quiz or test as a precondition to receiving academic adjustments that were already approved.”

The problem with most rules or requirements that place responsibility on students to provide notice that they intend to use previously approved test accommodations for each and every test, exam or quiz is that, with the exception of third party accommodations such as the use of an interpreter or reader or the need to place materials in an alternate format, such rules or requirements are unrelated to the specific, particular accommodation needs of individual students. They are, instead, used to address the fact that institutions have limited or a lack of sufficient resources devoted to the test accommodation process. In essence, students are being asked to shoulder the burden of what is an institutional problem and depending on the size of that burden it is, arguably, just another version of impermissibly passing the cost of the accommodation on to students.

Therefore, it is important to address this institutional administrative problem, in a manner that does not require students with disabilities to shoulder an inequitable amount of the burden. Specifically, if space is limited in the Testing Center and/or disability services office, other methods should be explored to manage the problem such as:

  • identifying accommodations that with assistance or guidance instructors and/or departments can provide to students;
  • using available software that makes the scheduling and logistics of test accommodations easier for all parties (e.g., faculty can upload exams on a secured site, students can simply check off on an email list, once a semester, the tests for which they will need accommodations, etc.); and/or
  • devoting more resources to the test accommodation process.

It is important to design a process that does not make students responsible for administrative and resource issues that college or university administrators should be managing.

6.So they don’t make a reservation and then they forget to come in to take the exam but we have to make room for them on another day how is that fair for non disabled students?

The problem with this question is that it is based upon false assumptions regarding the rights of students with disabilities and the obligations of institutions. There is nothing in the law that excuses a student with a disability who does not show up to take an exam and entitles him/her to have the failure to act responsibly ignored. A student with a disability who fails to show up for a scheduled exam should be treated the same as a non-disabled student in the class who fails to show up for an exam.    

7.The biggest issue deals with the timeliness of a student's request to take a test in the testing center (after they have been approved for accommodations). In the spirit of the "shared responsibility" we work with students to help them understand our process which includes working with their instructor on where accommodations will be addressed (i.e. with the instructor or with our office). We publish (in many forms) the guideline for scheduling a test with our office that is by 8 am - 3 business days before the scheduled exam/test.

If a student does not follow the guidelines we give them verbal and written information in an attempt to ensure they understand the process. If they continue to not follow the guidelines we reach a point where we do not give test accommodations in our office if they make the request after the published deadline - at that point the student is encouraged to follow up with their faculty for accommodations. Do we have a right to impose a 'deadline' for scheduling of test accommodations?

If you provide students the option of either taking tests, exams and quizzes in your office or with their instructors, then you can certainly impose reasonable rules related to the logistics of giving tests in your office. The key is that you are not depriving students of test accommodations you are simply providing them with options. The fact that there are conditions attached to one of the options does not make that option unlawful. If a student does not wish to adhere to those conditions s/he can elect to take tests with his/her instructors. However, the accommodations provided by instructors or departments must be equally effective.

The primary problem I see with the procedures you have described is that it appears that students are left to work out the accommodation process with instructors on their own if they do not adhere to your guidelines (i.e., “at that point the student is encouraged to follow up with their faculty for accommodations.”). Your office cannot take a “hands off” approach in such matters. As the office designated for identifying necessary and reasonable accommodations for students, you must ensure that students are properly accommodated. This means you must work with instructors and departments to make sure that they do, in fact, accommodate students properly.

8.The Testing Center has a policy for students to make their testing appointment 4 days in advance so faculty have time to respond, sending their exams in time.

A student, whose accommodation is extra time on exams can use the Testing Center because faculty do not have a place to administer exams after class, doesn't make her appointment in the 4 day time. However the Testing Center does have the exam because other students with disabilities in the same class have made their appointments.

The faculty is denying the use of the Testing Center because the student did not make their appointment in advance. Can we really enforce the policy when it denies the accommodation?

The problem with rules or requirements that are adopted to facilitate the accommodation process and to ensure that students are provided effective accommodations is that often individuals lose sight of that goal and begin to use those rules and requirements in a punitive manner. The way to view this problem is as follows: 

  • The student’s failure to act in this instance does not in any way impact the integrity of the exam process. 
  • The purpose of the rule is to make sure the Center has the exam…the Center has the exam, if anything the student just needs to be reminded to follow the rule in the future.
  • OCR has ruled that once a student has been approved for test accommodations rules that require him/her to continually either request or indicate the intention to use accommodations that s/he has already been approved for may be considered unduly burdensome.

Additionally, all non-disabled students in the class have to do is show up on the day of the test at the right time. It is important to make sure that students with disabilities, in comparison to their peers, are not required to jump through unnecessary additional hoops. Decisions that result in students with disabilities being treated differently than similarly situated non-disabled students in an adverse manner on the basis of disability are suspect. Thus, an absolute rule that would deprive all students with disabilities who do not provide advance notice of the intent to take tests in a Testing Center or the disability services office of the right to test accommodations as a penalty is inappropriate. There is no justification for treating this student differently than similarly situated non disabled students if s/he shows up on the right day and time to take the test. 

9a.If a program has testing policies to state that a student must give a testing form to the professor (which tell us when and how to administer the exam) and schedule their exam time with the DDS office to arrange testing three days prior to the exam (to arrange reader, scribe, schedule private room, get the exam, convert test to alt format, etc.) can we turn the student away for not following the policy (e.g., showing up late to test, not scheduling an appointment with DSS, not giving professor enough notice to get the test to the DSS office)?

 b.As general guideline, if a student fails to request tests in a timely fashion as outlined by the published guidelines (in this case 3 business days in advance), can we decline the accommodation for the late requested accommodation?

It is important to separate those things that are uniquely related to a particular student’s needs and must be in place for him/her to have access (e.g., scheduling a reader or scribe, placing materials in alt format, etc.) from those things that are basically the logistics of managing the test accommodation process, such as the manner in which faculty members submits tests and instructions to DSS and how testing space is scheduled. The requirement that students provide notice regarding uniquely related academic adjustments is arguably justified particularly if the need for the accommodation changes based upon the nature of the test or exam.  However, requirements regarding general logistics should be managed in a way that does not place additional burdens on students.

I would caution against enforcing an absolute rule that would deprive students of the right to be accommodated if guidelines are not followed. You are always obligated to look at the facts of the particular case and determine if you can strike a balance that will not unnecessarily deprive students of accommodations. However, students with disabilities should not be excused from violating standards of behavior that all other students must adhere to (i.e., showing up late for a test, cheating, etc.).  

10.What if professors are stating they are answering questions during their exams, do they have to give the same access to disability students?

Absolutely, students with disabilities are entitled to the same information and opportunities that their peers receive in the testing environment. This is one of the biggest problems with testing students outside of the department/classroom. You cannot ignore the fact that students with disabilities are being denied such information and opportunities. You must work with instructors to design a method to include students with disabilities.

11.Does extended time as a test accommodation apply to take home exam?

It depends upon the nature of the exam, the manifestations of the student’s disabilities and the nature of the academic adjustments identified as being effective for the student. In other words, you must conduct the individualized assessment.

12.What constitutes distraction free/distraction controlled testing? Does it have to be a private room?

There is no answer to this question because it is asked in a general manner without reference to the facts of a particular case. It does not have to be a private room if other methods, based upon the manifestations of the student’s disability, would be effective (e.g., headphones, use of screens or partitions, etc.).

13.Is there a problem administering an exam earlier in the day to a night student so that the exam does not run until 11 pm? Even though the student will have less study time?

OCR has recognized that in fashioning effective accommodations the experiences of disabled and non-disabled students upon occasion will not be identical. The question in such situations is whether there is a substantial adverse impact on the student’s receipt of educational benefits. In the Spokane Community College, No. 10082072 (OCR 2009)case, OCR ruled that an entire weekend worth of study time was substantial. In your case, arguably a few hours in the same day would not be considered substantial. The burden would be on the student to provide evidence of the claimed substantial impact.

14.What can be done when students on the spectrum (aspergers) continuously disruptive the exam room?

Students with disabilities are held to the same standards of behavior as other students in the exam environment. Further, if a student is so disruptive in the exam /testing situation that it is difficult to conduct business then, if there are no accommodations or modifications that will enable or assist the student meet the required standards of behavior, the student may not be qualified. Under those circumstances, it would be appropriate to offer the student an alternative means of participating in the educational program such as on-line or distance learning.

15.A student who has a preference for a human reader declines to use the technology tools offer by the institution; despite the fact that the institution provides one-on-one training in the use of the tools to ensure proficiency. Does the institution have to defer to the student’s preference versus using the technology that is available?

Keep in mind that the obligation is to provide “effective accommodations.” The federal government pays attention when a) institutions ignore individual preference and refuse or fail to consider it as a part of the deliberative process and/or b) the failure to provide the preferred academic adjustment, auxiliary aid or service results in the student being denied equal access. If; however, the institution can demonstrate that the proffered adjustment, aid or service is “equally effective”, the student will not succeed by solely arguing preference. The key is to be able a) to demonstrate that the student’s request was given good faith consideration and b) to provide clear evidence that the recommended accommodation is, in fact effective. Further, if the student must become proficient in the use of the recommended accommodation it is advisable to use the student’s previous accommodations as a bridge and to respond immediately to any issues or concerns the student raises regarding the recommended accommodation. Additionally, you should not ignore sub-par and/or deficient performance on the part of the student if it is attributable to a lack of proficiency or other difficulties with the recommended accommodation.

16.A student in a PhD program is provided an extra year to complete the program as an accommodation. The documentation provided supports the need for the requested accommodation. The student is also a paid TA and addition to requesting the additional year to complete her studies she also requests an additional year as a TA because otherwise she would not be able to afford the extra year in the program. Is this request for financial support really a disability related accommodation?

Arguably, the manner in which the student pays for the additional year is a personal matter that she needs to resolve. Certainly the institution is not obligated to automatically provide her a TA appointment as a part of granting her an additional year to complete her degree requirements. The student would need to apply for, satisfy the requirements for such a position, and compete for the position in the same way as all other similarly situated non-disabled students. The student would; however, have the right to seek modification of department policies regarding her eligibility to seek a TA position. For example, if departmental rules limited the number of years a student could be employed as a TA, she could seek a modification of that policy as an accommodation.

Assistance Animal Housing Policy

The University of Nebraska has published a new assistance animal policy and agreement. The significance of this policy and agreement is that the documents were developed pursuant to the University's September settlement agreement with the Department of Justice. The Agreement with Justice resolves a lawsuit in which the University denied access to housing for two students with assistance animals. Pertinent provisions of the University's policy include:

1.  The definition of assistance animals includes those that "do work; provide assistance, perform physical tasks ... and/or provide necessary emotional support to an individual with a mental or psychiatric disability that alleviates one or more identified symptoms of an individual's disability."

2.  It is noted that such animals may have no formal training or certification.

3.  The individual must make a reasonable accommodation request to be permitted to have an assistance animal in housing and the determining factor in permitting an individual to have an assistance animal in housing is whether the presence of the animal is necessary in order for the individual to be afforded "...an equal opportunity to use and enjoy University housing and its presence in University housing is reasonable."

4.  Factors that will be considered to determine whether the presence of the animal is reasonable include:

                        The size of the animal;

                        "Whether the animal presence would force another individual from individual housing (e.g. serious allergies)";

                         Whether the animal presence "otherwise violates individuals' right to peace and quiet enjoyment's";

                         Whether the animal has appropriate/required vaccinations;

                         Whether the animal poses a direct threat;

                        Whether the animal "...causes or has caused excessive damage to housing..."

5.  It is specifically stated that the fact that an individual has established the necessity for the animal in housing does not confer permission for the animal to be in other areas such as "dining facilities, libraries, academic buildings, athletic building and facilities, classrooms, labs... ." The policy further provides the animal "...must be contained within the privately assigned individual living accommodations (e.g., room, suite, apartment) except to the extent the individual is taking the animal out for natural relief."

6.  The University reserves the right to assign an individual to a single room without a roommate to ensure that the presence of the animal "...is not an undue burden or fundamental alteration of University housing..."

7.  The owner of the animal is responsible for complying with relevant government ordinances, laws and regulations, proper care of the animal, cleaning and waste disposal, damages beyond reasonable wear and tear, and the cost of any pest treatment beyond "standard pest management". Additionally, the owner is not permitted to leave the animal "...overnight in University Housing to be cared for by any individual other than the owner."

 

** It is not clear to what degree DOJ has approved the provisions of this policy.

Department of Justice Posts New Testing Accommodations

The Department of Justice posted a new Testing Accommodations publication on the ada.gov site on September 8, 2015.

The publication addresses access to standardized examinations. The publication includes a good listing of possible accommodations and addresses some key topics such as defining “substantial limitations” and the entitlement of individuals with a history of academic success.

The most important sections of the document include a discussion of documentation standards and practices. It presents examples of types of documentation that is appropriate, e.g., recommendations of qualified professionals, proof of past testing accommodations, observations by educators, etc. Additionally, there is detailed discussion of many of the types of documentation listed. It is also significant that the publication includes a link to the model testing accommodation practices developed pursuant to the LSAC Consent Decree.

The Housing Dramas Continue

Webinar 3: Best Practices Series 6

Answers to questions posed by participants:

Does the law require universities to allow students with chronic conditions (psychiatric disabilities) to have comfort animals in the classroom?

While the FHA and Section 504 are the statutes that permit students to have assistance (comfort, support, etc.…) animals on campus much of the discussion pursuant to these statutes addresses the presence of assistance animals in housing environments. The most explicit discussion of the rights of students to be accompanied by animals as they participate in other institutional programs and services are found in the regulations implementing the ADA. The ADA only provides such protections for individuals with services animals. The Department of Justice has distinguished the FHA and Section 504 from the ADA by noting that requests for the use of assistance animals should be treated as accommodation requests. (See, HUD Policy Guidance: New ADA Regulations and Assistance Animals as Reasonable Accommodations (February 17, 2011) and NACUA Notes: Accommodating Service and Assistance Animals on Campus, Vol. 9 No.8 (April 14, 2011). Therefore, it is argued by some, including, reportedly, by OCR attorneys, that requests to be accompanied by assistance animals in the classroom must be given good faith consideration as accommodation requests. 

If we know that a student will be bringing a service or assistance animal, how do we handle disclosure to roommates? How do we notify roommates without compromising the confidentiality of the student with a disability?

First, there is no right to confidentiality conferred to students either under Section 504 or the ADA. When a student requests an accommodation, an institution is entitled to disclose information to persons who have a need to know as a part of the accommodation process. Students who will be sharing a living environment are such persons. It is advisable for institutions to provide notice on their housing applications that in shared room situations there is a possibility that an animal might be present so that individuals with allergies or other issues or concerns regarding animals can raise them during the application process.

Does the FHA require less stringent documentation for support of a reasonable accommodation than disability services (in general)? How can we reconcile that with current DS practices and policies concerning documentation?

Overall, the documentation standards of institutions must not be unduly burdensome. Standards should be tailored to gather information regarding the existence of a disability and sufficient detail about the manifestation of the disability to permit a determination as to what academic adjustments, auxiliary aids and/or services, if any, would be reasonable and effective. In enforcing the FHA, HUD does not apply less stringent standards than these. The position that HUD has taken is that institutions cannot go on a fishing expedition and seek information regarding medical conditions that are unrelated to the stated need for the assistance animal. See USA v. University of Nebraska at Kearny, No. 4:11-CV-3209 (D. Neb. 2013).   

How should “incompatible disabilities” be handled, e.g., when one student is allergic to another student’s service or assistance animal? Which student, if either is asked to move?

Each student’s request is treated as an accommodation request. It is not enough for a student to merely say they allergies or that they are terrified of a particular type of animal. If they are asking or demanding that the institution take action related to that information, they must provide documentation to support the need for the action. Further, even if the documentation supports the request, the institution must properly balance the needs of both students in arriving at a resolution. The facts of each case will dictate the resolution options that are available. Factors such as the severity of the student’s allergies, whether one of the student has priority because of timing of his/her request or their enrollment status, and the range of housing choices available to students may have an impact on the options available. 

If a student needs a single and there are none available in the dorm that she and her friends want to live in, is the institution required to allow her to have a single in that dorm?

Institutions must distinguish between the following types of request cases:

  • Ensuring equal access;
  • Honoring student priority choices; and
  • Responding to student’s preferences.

There is a compliance obligation to provide access to the housing program; thus, if it is an equal access issue it is paramount that the student’s needs be met. Additionally, the institution cannot ignore priorities conferred upon students as a group such as class status (e.g., juniors and seniors are permitted to live in apartments), lottery numbers, etc.… . If the student’s request is based upon a priority that is conferred to a group that the student is a member of, every effort must be made to ensure that the student gets the benefit of his/her priority status. Institutions have the greatest flexibility concerning preference cases. The ultimate responsibility is to provide access to the housing program so a decision that ensure access while demonstrating a good faith effort to respect the student’s preference will usually withstand scrutiny.    

a. We are creating "Living Learning Communities" in our residence halls. These are floors in the residence halls that have specific themes, e.g. community service or students in substance abuse recovery. If a student with specific housing accommodation needs (e.g. private bathroom, first floor) wants to be part of a Living Learning Community, do we need to move the location of the Living Learning Community to provide the accommodations?

b. There will be several Living Learning Communities on campus next year with three located in a non-accessible 4-story building. What burden falls on the institution to relocate the LLC of 25-30 students to an accessible hall if a student in a wheelchair wanted to live in the LLC?

Institutions are obligated to offer the same range of choices and opportunities to students with disabilities as other students. Therefore, when decisions are being made concerning the availability of such specialty housing the issue of access must always be on the table. Institutions that fail to give proper consideration to this issue are, at a minimum, violating program accessibility compliance standards and; if major renovations or new construction is involved architectural compliance standards are also an issue.

Can we tell students who are approved for a comfort animal that they cannot allow their comfort animal on furniture in the common rooms in the residence halls?

The standard you should use in developing such rules or guidelines is that they should not deny or restrict the use and enjoyment of common areas by the student. Arguably reasonable rules that ensure that animals do not soil common use furniture do not restrict the use and enjoyment of students with assistance animals. Thus, the focus should be on developing neutral rules or guidelines that are designed to protect full and safe use and enjoyment of all students.

a. A student who has severe anxiety says he must come early and settle before school begins to reduce anxiety? Can the student be charged?

b. A student wants to come early due to a disability-based need; but, limited staff results in the dorm not being staff for early admission. Is the University required to incur the expense of assigning staff to the dorm early to accommodate the student?

If an institution has a policy of charging students a fee for moving into housing early, OCR has ruled that the determining factor concerning whether a student with a disability can be charged the fee is whether it is a disability related need that can only be met by the student moving in early. Questions to ask include: What are the specific manifestations of the student’s disability that the early move-in is intended to address? Can the student’s identified needs be addressed during the regularly scheduled student move-in period? A good OCR case to consult on this issue is University of Wisconsin-Stevens Point, No. 05-09-2149 (OCR 2010): OCR ruled in this case that because the institution could demonstrate that the student’s need for mobility training could be adequately met at the beginning of school the student’s desire for an early move-in was a convenience rather than a disability-related need and charging the student the fee was not discriminatory.

Under circumstances where an institution does not offer students the option of moving in early, arguably, the institution can assert that it is an undue administrative and/or financial burden to staff a dorm that would otherwise not be staffed to accommodate one student. However, even under circumstances where it is determined that moving in early is not an option, the institution should explore whether there are alternatives available to meet the student’s identified disability related needs.  

If a student with a service or an assistance animal is requesting a housing accommodation for the university to allow them to live in a double room but not with another roommate (to make room for the animal) but our university has many single rooms, should we be housing them in a double room (as a single) or a single occupancy room?

The answer to the question depends upon whether the university has single rooms that would afford the student adequate living space with the animal. The obligation of the institution is to provide access to the housing program. Therefore, if there are singles that offer adequate space for students and their service or assistance animals then certainly university officials can choose to assign students to such singles.

a. Are institutions permitted to require students with service animals to notify either the disability services office or the public service office that they have a service animal on campus?

b. What is the recent OCR case in which they ruled that notification can be required for service animals when that individual is there on a permanent basis?

Prior to the revised regulations being issued under the ADA, OCR had ruled in Northwest Missouri State University, 07-07-2037 (August 2007) that postsecondary institutions could require that students with service animals, at a minimum, provide notice to an identified office that they were in need of a service animal as a means of the institutions managing the presence of such animals on campus. However, upon implementation of the revised regulations, there was some question as to whether institutions could continue to request such notification given the regulatory restrictions imposed with respect to institution initiated inquiries. A recent OCR ruling appears to settle this question. The resolution agreement outlining policies governing the use of service animals in the districts’ facilities included a provision that visitors would freely be allowed access while students and employees wishing to be accompanied by service animals on a permanent basis would be required to provide notice “prior to the proposed use of the animal on the premises.” (See Letter to Labs, No. 01-12-1277, (OCR 2013).

Is a college allowed to set a deadline for when housing accommodation requests are needed to secure housing?

While Institutions may set a fixed date for all students to submit applications for housing, they cannot single out students with disabilities in imposing such a requirement. It would be viewed as adverse or discriminatory treatment. Students with disabilities can seek accommodations at anytime and, while, institutions are entitled to a reasonable amount of time to review, process and respond to such requests, institutions cannot refuse to consider accommodation requests based upon some arbitrary date. Students are entitled to request that institutions modify their policies and procedures, including deadlines and due dates, and institutions are required to give good faith consideration to those requests.

Can we hold a student financially responsible for damages a service or assistance animal causes in housing?

Institutions should treat students with disabilities the same as other students regarding the enforcement of policies and procedures regarding housing damages and student responsibility. There is no reason to single out students with service or assistance animals.

a. Does an assistance animal have to be preexisting?

b. Must the student have a history of previously having a comfort animal prescribed?

c. Student who has never had a comfort animal in the past comes to school with a letter from a doctor that says: "Yeah, an animal might help." University asks for more specificity. The HC provider again provides the same letter.

A student’s desire to have an assistance animal is an accommodation request. Therefore, the student is responsible for providing documentation that establishes the existence of a disability, the manifestations of which supports the need for an assistance animal. This also means that institutions are entitled to raise questions about the legitimacy of physician letters that are suspect (e.g., letters obtained from on-line experts that have never treated the student, letters that merely support the desire of the student to have an animal with no evidence of a history of the student having used an assistance animal as an accommodation; and/or letters that provide no connection between the manifestations of the disability and the recommendation for the animal). Further, institutions have the right to offer alternative accommodations that they can establish would be equally effective as the use of an assistance animal.

a. If a student with a disability related need (i.e. anxiety, PTSD, etc.) requests a medical single and has appropriate documentation so we provide the single (not for a need for extra space, but a need for single space) is it ok that we charge them the single room rate at the university? 

b. Regarding accommodating a student with a single room, what about an associated reduced rate for the single room? Isn’t the single room itself the accommodation, not the rate?

Unfortunately, OCR has rejected this position on many, many occasions. OCR has consistently ruled that institutions must make exceptions to their room-rate policies when necessary to enable a student with a disability to participate in the housing program. Institutions are not permitted to charge students for the cost of accommodations that are deem necessary for the students to gain access to a housing program. See State University of New York at Potsdam, No. 02-11-2062 (OCR 2011) and University of Wisconsin-Stevens Point, No. 05-09-2149 (OCR 2010).

A student who experiences pseudo-seizures lives on the second floor and her trigger is fire alarms. During the past two alarms she experienced pseudo-seizures and froze while going down the stairs and blocked the stairs preventing other students from evacuating the building. There are concerns about safely getting the student out of the building. She insists she wants to live on the second floor. Can we require her to live on a first floor near an exit? She doesn't want this but our police believe this would be the safest thing to do to get her safely out of the dorm.

It is not reasonable for an institution to sacrifice the safety and wellbeing of all residents in order to satisfy the rooming preference of a student with a disability. Further, the student’s actual behavior during previous alarms provides objective evidence of the risk she poses in an emergency situation. The difficulties experienced during previous alarms, as well as the assessment of experts in the field (i.e., police and emergency personnel) supports the institution assigning the student to room that would provide for the safety of all concerned.

Regarding housing, if a dorm has no "single" rooms, do we have an obligation to create singles from doubles to ensure the housing accommodation is provided with minimal restrictions (i.e., student has the same options as peers to live with friends in specific dorms)?

Yes, if it is the only means of making the housing program accessible, as well as, offering the same range of choices and opportunities to students with disabilities, the institution may have to convert doubles to singles upon occasion.

When students have service animals or ESAs, is it acceptable to put a paw symbol (or some other coded identifier) in a discrete location on the student's door or window to alert facilities personnel of the animal's existence?

No, OCR ruled on this in Portland State University, No. 10112060 (OCR 2011). Placing such a symbol on the door would, arguably, be requiring students to disclose their disabilities to everyone. OCR described it as “limiting disabled students in their enjoyment of their university housing by requiring them to disclose their disability.”

I was wondering if you could address what a university should do if the student submits a request after the deadline for housing requests and we do not have the available accommodation for housing.  Should we allow the student to get out of the housing contract?   If we are out of single rooms how do we accommodate?

The key issues in such situations is that a) the University has provided clear and timely notice to students of the consequences of missing the deadlines for housing requests; b) the housing deficiencies the University experiences do not disproportionately impact students with disabilities (e.g., are students with disabilities the only one who have difficulty if they do not request housing within a set period of time); c) how the University handles similar situations, if any, where non disabled students fail to satisfy housing requirements. If the University is in a situation where the housing needs of all students are adequately met except for students with disabilities who need single occupancy as an accommodation, it is imperative that the University consider all options for providing access to the housing program up to and including converting double occupancy rooms to singles, as well as, allowing students to get out of the housing contract.

How should safety issues in labs be addressed when a student has a service animal?

The three important compliance imperatives to be respected are:

  • Institutions should not imposed absolute bans on service animals in all lab environments –Students with service animals are entitled to be in any space or environments that their peers are entitled to inhabit. Therefore, any restriction or limitation concerning the presence of a service animal must be clearly justified following a proper individualized assessment and must be the product of an informed decision based upon objective evidence not mere speculation. Further, any imposed restriction must be limited to an identified, supportable danger or safety risk that cannot be lessened or minimized by adjustments short of restricting the student’s access to the service animal.
  • The presumption that the animal is entitled to be presence should be the basis of a good faith individualized assessment to determine the manner in which the student and the service animal will participate in the lab environment –Institutions are obligated to review the lab environment, the tasks students are required to perform, the duties and tasks the animal performs for the student, as well as, the actual behavior and training of the animal and make reasonable modifications that will ensure the student is afforded an equal opportunity to participate in lab activities. It is impermissible to introduce unsupported and unfounded fears about animal behavior into the assessment process.
  • The student is responsible for ensuring that the service animal is under control –If the animal behaves inappropriately in the environment, the student must be given an opportunity to get the animal under control. If the student is unable to gain and maintain control of the animal then the institution is entitled to take necessary action to eliminate disruption and/or to address safety issues. Even if removal of the animal is justified, the institution is obligated to offer the student an alternative accommodation, if necessary, to ensure access.

What should an institution do if they believe that an animal that is being called a service animal is in fact a comfort animal?

The types of inquiries that institutions can make regarding service animals are extremely limited. If the statutory approved questions yield nothing, an institution is not entitled to take any other action absent concrete, objective evidence that that places the status of the animal as a service animal in question. Examples of such evidence include: consistent failure of the animal to perform the work or tasks identified and/or the student participating in activities without the animal under circumstances where the animal should be performing the identified work or tasks. In my opinion, if the issue is objectionable or problematic behavior of the animal, (e.g., the animal is out of control and the handler fails to or cannot get the animal under control) the best and most expedient approach is to remove the animal under the regulatory provision that makes the handler responsible for maintaining control rather than engaging in a debate about whether the animal is, in fact, a service animal.

Our dining services offer a variety of mandatory meal plans for students living in University dormitory-style housing. They are typically very creative and accommodating to students with specific dietary needs, such as gluten and lactose intolerance, etc. One month ago, during winter break, we had a new request. A student emailed a request to the Disability Resource Center (DRC) to cancel her meal plan contract for spring semester due to a disability-related need for modification of food texture. She has difficulty chewing and swallowing. She later modified her request to reduce her meal plan from 11 to no more than 5 meals per week. The student goes home on the weekends and some other nights during the week. Dining services is offering to work with the student to explore providing the necessary modifications in order to retain her 11 meals per week contract. They are also offering to increase the number of meals she can eat elsewhere on campus. Their dietician has met with the student and is involved in the process. What does an interactive process look like in this situation? How do we discern preference from disability-related need? What other things do we need to consider as we engage in the process of determining a reasonable solution? 

Regarding the interactive process, you are doing a good job. You have brought the necessary experts (e.g., disability services staff and the dietician) to the table and you have offered a number of options as accommodations. Therefore, as long as, everyone is participating in good faith there is no issue with the interactive process. The preference issue is a good deal more difficult. You need a very good understanding of the nature of the student’s disability and the manifestations of her condition, in order to decided if the on-campus dining options that you are offering are practical and workable. Getting to that level of understanding requires: 

  • A complete and detailed review of the student's documentation; 
  • A discussion with the student at which you request that she outline in detail the difficulties she has under the standard meal plan, as well as the perceived difficulties with the options you have offered (e.g., you want her to distinguish between the foods she can eat and those she must avoid so that you can get a sense of the range of choices available to her under the meal plan and options); and 
  • A discussion with her physician at which you explore and vet the information you have gathered regarding the nature of the student’s disability and the difficulty she has with the meal plan. 

The discussion with the physician must come at the end of the process because you need to be able to engage in a detailed discussion about the nature of the condition and the options available so that you come away with a clear understanding of the impact the disability has on the student and will, then, feel comfortable either insisting the student accept the alternative options you have offered or agreeing to the reduction in the meal plan. Of course, you will need to keep the dietician and/or someone from food service involved throughout this process. The process is extremely time consuming so you, of course, will need to decide if it is worth the time and effort, as opposed to simply granting the student the accommodation that she has requested.   

If a student who has a medical-based dietary restriction needs to live in an apartment so s/he can make their own food, what would be the amount charged for their housing? Our campus had four different rate structures where traditional halls are one price and the three apartment buildings are each a different and higher price.

The price is based upon the circumstances of the case. There are a number of issues that are pertinent. They include:

  • Do his/her medical-based dietary restrictions establish that s/he has a disability entitling her to protection under Section 504 and/or the ADA?
  • Are there reasonable alternatives that would make the food service program accessible to the student while satisfying his/her dietary restrictions and needs?
  • Are the apartments the only housing configuration that offers students the opportunity to prepare their own meals?

Students with mental disabilities are entitled to individualized assessments prior to being denied the right to participate in educational programs

Quinnipiac University’s Settlement Agreement (posted 1/12/15)

 

The case involved Quinnipiac University placing a student on a mandatory medical leave in response to issues related to the student’s depression. The primary complaint was that the student was forced to take a medical leave while options that would have permitted her to continue her enrollment were not considered. Following an investigation, a determination was made that the University discriminated against the student by placing her on mandatory leave and denying her the right to continue participate in the educational program. The specific finding was that the University had violated the student’s rights by refusing to consider modifying its mandatory leave policy and permitting her “to complete her course work while living off campus by attending classes either online or in person.” 

 

In addition to paying compensatory damages to the student, the Agreement requires the University to adopt a non-discriminatory policy that includes a mandate to conduct individualized assessments and case-by-case determinations with respect to whether and how its policies should be modified to provide reasonable accommodations to students with mental health disabilities.  

Students must meet the legitimate technical standards of a medical school’s clinical program

Students must meet the legitimate technical standards of a medical school’s clinical program –

McCuley v. The University of Kansas School of Medicine

No. 2:12-CV-02587-JTM (D.Kan. 2014)

A student who has Type III spinal muscular atrophy was admitted to the medical school. The primary manifestations of her disability were that she used a wheelchair for mobility and had limited arm strength. As a part of the accommodation process, the student and her physician were presented a list of physical requirements for participation in the clinical program. Based upon those requirements, her physician identified the following accommodations as being necessary: "… she would need a staff person to assist her with lifting and positioning patients, stabilizing elderly patients, and performing basic life support."

The Medical School's clinical faculty concluded, following a review of the requested accommodations, that the student would not meet the School's technical standards. Of particular concern was the program's Motor Technical standard which requires, in pertinent part, that students"… be physically able to carry out diagnostic procedures and provide general care and emergency treatment to patients, including CPR, opening obstructed airways, and obstetrical maneuvers." The student's admission was rescinded because it was felt that she could not satisfy the Motor Technical standard.

The Court of Appeals, in this case, reiterated its earlier position that "compelling an educational institution to change its requirements for advancement through its medical school program would represent a substantial, rather than a reasonable accommodation, because it would fundamentally alter the nature of the educational services and programs it provides." See Cunningham v. University of N.M. Bd. Of Regents, 531 F.App'x 909, 920 (10th Cir. 2013). The court agreed with medical school administrators that permitting a staff person to be a surrogate for the student for purposes of lifting patients, administering basic life support and performing other tasks would result in the student being little more than an observer in the educational process. The court specifically concluded that this would fundamentally alter the nature of the student's medical education that was intended to train her to engage with patients often in emergency situations where assistance would be unavailable.

The court noted that the fact that the student did not intend to pursue a physically demanding medical specialty did not excuse her from meeting the medical school's technical standards. The court further noted, in this regard, that medical schools have the right to use a broad medical curriculum that prepares students to serve as physicians in a wide range of practice areas. The court also remarked that the clinical procedures that the student sought to have staff members perform on her behalf were required elements of the United States Medical Licensure Examination.

Webinar 2: What to do if the evidence suggests that the student is only a threat to himself or herself…

Webinar 2: What to do if the evidence suggests that the student is only a threat to himself or herself

The recent lawsuit filed by a student against Princeton University and a number of administrators challenging his eviction from housing and withdrawal from classes following a suicide attempt raises questions regarding the obligations of postsecondary institutions when a student is guilty of taking action that places only himself at risk. A review of recent OCR rulings reveals the following key compliance imperatives:

1.  If the evidence clearly reflects that the student is not a threat to the health or safety of others then it is inappropriate to label the student as a "direct threat"; take adverse action based on such a label and/or to condition the student's continued participation on reduction of the threat. (See Spring Arbor University, No. 15-10-2098 (OCR 2010)).

2.  If the evidence is mixed or incomplete, it is acceptable to conduct an individualized assessment based upon the best available objective evidence and/or current medical knowledge to determine whether the student represents a direct threat to others. (See Case Western Reserve University, No. 15-11-2024 (OCR 2011) and Farmingdale State College, No. 02-10-2176 (OCR 2011)).

3.  A student who exhibit conduct and behavior requiring staff, administrators, and others to actively monitor and intervene in order for him/her to safely and/or properly participate in the educational program can be judged to be disruptive and as a consequence the institution may determine that he/she is not "qualified". Under such circumstances, it is important that: 

  • There is actual evidence that the conduct or behavior substantially disrupts the institution's ability to effectively offer the educational program and services and/or interferes with the ability of other participants to benefit from the program or services. Examples of such behavior or conduct includes: a student who frequently has seizures during classes; a student who threats suicide and posts suicide notes on his dormitory door; and a student, living in campus housing, who is frequently found wandering disoriented on city streets in the middle of the night.
  • If the disruptive behavior or conduct reflects a manifestation(s) of the student's disability; disability experts must be involved in determining whether there is a reasonable accommodation that would permit the student to appropriately participate in the program. See College of Lake County, No. 05-10-2147 (OCR 2010)) - In that case OCR ruled that rather than demanding that the student cease pacing and running as a condition for participating in the program, administrators should have determined whether there was a way to accommodate the student's need to pace or run that would not result in a fundamental alteration of the nature of the service, program or activity.  

4.  Any adverse action (e.g., withdrawal, suspension, etc.) taken must be legitimate and non-discriminatory. Institutions must be able to demonstrate that the student was:

a)provided clear notice of the  policies, procedures and/or requirements in question; 

b)treated the same as similarly situated nondisabled students; and

c)afforded the same level of due process as others subject to comparable adverse action. 

See Farmingdale State College, No. 02-10-2176 (OCR 2011); University of Michigan, Dearborn, No. 15-10-2105 (OCR 2011); St. Louis Community College, No. 07112019 (OCR 2011).

Training Students in a Workplace Environment

Webinar 1: Best Practices Series 6

Answers to questions posed by participants:

Q:What about a clinical psychology program requiring administration of standardized assessment instruments? That’s a key element of what psychologists do but any given psychologist might choose not to do such assessments.
A:There are a number of important pieces of information that must be considered. The most significant of which is what have program administrators said about the administration of such instruments? Is it the actual administration of the instruments or is it the analysis of the results or is it both that is judged to be essential?  Is there a rational connection between program objectives and those things relative to test administration that has been identified as essential? Do program practices establish that test administration has, in fact, been treated as an essential requirement? With respect to students with disabilities who have been negatively impacted by the application of the requirement has the requirement been applied in a nondiscriminatory manner and have program administrators given good faith consideration to the availability of academic adjustments, auxiliary aids and services, including the use of adaptive technology and/or the elimination of those parts of the administrative process that arguably are marginal rather than essential, as a means of accommodating individuals students with disabilities?

Q:For a chiropractic student who is blind, and an assistant is provided by the college in the practicum, must the place which hires the student also hire an assistant?
A:It is important for the college, in consultation, first, with the student and then with potential placement sites, to identify for what purposes the student needs an assistant. The first consideration is whether there are tasks or duties that are marginal or nonessential that can be eliminated from the student’s placement experience. The second question would be whether there are alternative ways of performing the tasks or duties that would not require the involvement of an assistant. Finally, for those tasks or duties for which the student needs an assistant, the primary question is how can the student be accommodated in a manner that would permit her/him to demonstrate necessary course competencies. From that point, the obligation of the college is to work with potential sites to identify those where the student will either be provided an assistant by the site or the site will provide an opportunity for the student to work with an assistant provided by the institution. The important thing for institution administrators to remember is that they are obligated to ensure that students with disabilities have the same range of opportunities with respect to their clinical experience.

Q:Is it the training program’s responsibility to inform the student of the essential functions of the profession when they begin the program?
A:There is no compliance standard that requires that programs list in specific detail all essential functions of a profession. Rather, the responsibility that programs have is to ensure that those things that are treated as essential or required are rationally related to program objectives, are applied and enforced in a non-discriminatory manner and, if challenged, are clearly reflected as being essential by actual program practices.

Q:In the CPR example for the Medical student are there instances where the ability to perform CPR would not be an appropriate technical standard given the support available in the hospital?
A:Both the courts and the Department of Education would most likely defer to the judgment of the educators on this matter absent some evidence of discrimination. Further, the fact that there is generally assistance in the hospital is not the determining factor because medical professionals find themselves in many environments where they may be called upon to perform CPR.

Q:If a student discloses a mental health diagnosis during a clinical practicum and thinks he/she needs therapy before continuing what recommendations do you have relative to assessment when student indicates readiness to return?
A:You have not provided enough facts to allow for a specific answer. The first thing to remember, is that absent extraordinary circumstances, the program should adhere to the institution’s published policies and procedures regarding the rights and responsibilities of students taking medical leaves during the clinical stage of a program. It is important not to treat the student differently than similarly situated nondisabled students without a compelling reason. Regarding possible compelling reasons, it is important to know whether the student had either in the clinical environment or on campus acted in a manner that raised legitimate concerns regarding his/her interactions with patients, clients and/or colleagues. If, in fact, there are legitimate concerns regarding the health and safety of others then any conditions imposed must be properly tailored to address those concerns. Further, reasonable accommodations that would eliminate or significantly lessen the concerns must also be considered. On the pertinent cases list, the Northern Virginia Community College, Jakubowski, Gwinnett College and Halpern cases would be good ones to consult.

Q:Are there any student teaching cases involving students with Tourrettes, on the autism spectrum, etc…?
A:A good case to review is Reichert v. Elizabethtown College, No. 10-2248 (E.D. PA. 2012)

Q:How broad/general versus specific/observable/measurable should technical standards be written?
A:It is important, to the maximum extent possible, to define technical standards in terms of program specific skills and activities that all students are required to perform. The reasons for doing so are to a) recognize that skills can be demonstrated and activities may be performed using alternative methods, tools and/or strategies; and b) minimize the possibility of treating students with disabilities in a discriminatory manner.

Q:A law student is working in a placement that is a hospital setting for her clinic. She is concerned about current news about ebola and flu. She has not had a flu vaccine because of a current URI so she requests to be allowed to do her placement either at home, by phone or sit in on another clinic at the law school and do her research, paperwork and client calls from the law school? Should the student be provided an accommodation based upon her fears that she is being put at risk?
A:Your description of the situation does not include sufficient information to permit the conclusion that the student has a disability, Therefore, the first thing that needs to happen is the student should be asked to provide clear documentation from an appropriate medical professional that she has a medical condition that meets the definition of a disability. Second, even if the student has a disability, her request to “phone it in” her clinical experience, arguably, is not reasonable. The reason for requiring the clinic based experience is that law school administrators believe that direct contact and interaction with clients, colleagues and other professions in the real world is a valuable part of law school; therefore, an accommodation request that, in essence, eliminates that “essential” requirement is questionable. Both the courts and OCR have found such requests to be unreasonable. See Klene v. The Trustee of Indiana University, No. 10-2929 (7th Cir. 2011).

Q:What happens if the inappropriate behavior happens outside the classroom – on the phone, social media, off campus?
A:The key is a) establishing in what way, if any, that it is connected to the student’s enrollment and participation in the clinical program and b) ensuring that, if the institution elects to take adverse action against a student with a disability based upon such outside behavior, that the student is treated in the same manner as similarly situated nondisabled students.

Q:If a student in a medical program discloses that they take medication on an as-needed basis that makes them drowsy, what is the university’s liability in the clinical setting and the obligation to provide an accommodation?
A:This information alone is insufficient to establish that this student poses any greater risk than any other student in a clinical setting. Additionally, there is no indication of a need for an accommodation, as of yet. Some of the questions that need to be answered include:

  • What is the extent of the drowsiness?
  • What impact, if any, does the drowsiness have on the student’s ability to properly perform in the clinical setting?
  • Is there any evidence of an impact on patient health and safety?
  • Can or does the student manage the medication in a manner that minimizes any debilitating effect in the clinical environment?

Q:Would a nursing program ever be justified in saying that a deaf student is not qualified to be placed in clinicals because of concerns for patient safety (i.e., not hearing patients calling out or patient call buttons)?
A:Not unless the program and its disability services staff conduct a proper individualized assessment to arrive at a proper determination that the student is not qualified. Southeastern Community College v. Davis, 442 U.S. 397 (1979) is still the best court decision on this issue. See also, Robert B. Miller College, No. 15082059 (OCR 2010).

Q:Which case were you referring to with student teaching?
A:The case is the Robert B. Miller case. The complete site is included on the pertinent case list on the slides.

*Best Practices Webinars

Discrimination Lawsuits

Duke University –

A lawsuit has been filed by Disability Rights North Carolina against Duke University charging that the Master of Divinity program discriminated against a student with a learning disability (dyslexia). It is alleged that a student was denied requested accommodations (i.e., audio versions of all reading assignments) and was threatened with loss of his scholarship if he did not withdraw an internal grievance he filed regarding the matter.

Kent State University –

The Department of Housing and Urban Development has charged Kent State University and four university employees with discrimination related to the refusal to permit a student to reside in a university apartment with her emotional support animal. It is alleged that the student and her husband were forced to vacate university family housing when the student, acting upon the advice of a university psychologist obtained an emotional support animal to cope with a panic disorder and generalized anxiety disorder.

 

For more information, subscribe to: DDR iconDisability Direct Response,

Qualified Status of students with infectious diseases

Institutions must be extremely careful regarding the decisions they make concerning the qualified status of students with infectious diseases, as the cases below illustrate:

Gwinnett College Settlement Agreement (April 25, 2014) – A student enrolled in a Medical Assistant Program was required to complete a health questionnaire upon which she noted that she was HIV positive. During the first quarter, she asked a professor whether she needed to take additional precautions in a phlebotomy class because of her condition. Prior to beginning classes for the second quarter she was informed by the President of the College that she could not continue in the Medical Assistant Program because she was a safety risk to other students. The President further informed the student that had he known of her condition prior to admission she would not have been permitted to enroll in the program. The student was given the option of either switching to Medical Office Administration or Massage Therapy or leaving the college. The Settlement Agreement requires the College to remove questions regarding HIV/AIDS from the heath questionnaire; draft and adopt a nondiscrimination policy; provide training on Title III of the ADA focusing on HIV-related discrimination; and pay the student for the harm she endured.

University of Medicine and Dentistry of New Jersey Settlement Agreement (March 2013) – This case involved two students who were admitted to New Jersey Medical School and the School of Osteopathic Medicine. Student A submitted mandatory heath and immunization records that included information that he had Hepatitis B. His admission to both schools was rescinded based upon the information concerning his medical condition. Instead the student was offered the opportunity to take a one-year deferral with no guarantee that he would be admitted the following year. Student C was admitted to the School of Osteopathic Medicine with a scholarship. Upon learning the student had Hepatitis B, his admission was rescinded and he was give the same one-year deferral option as Student A. A committee composed of medical experts assessed both students’ conditions and concluded that both students were highly infectious and posed a direct threat to the health and safety of others. Unfortunately the committee’s conclusion that the students were a direct threat was based upon an erroneous belief that the students were required to perform “exposure-prone invasive procedures” in order to graduate. Neither of the schools required students to perform such procedures; therefore, they were not essential program requirements. Therefore, the Department of Justice concluded that the schools actions were discriminatory.

Drake College of Business, No. 02-11-2036 (June 2011) – A student who was HIV positive informed College administrators that he did not wish to have his blood drawn in a required Phlebotomy course. Based upon his disclosure, he was advised that because of his medical condition he could not draw blood from other students because it would jeopardize the health and safety of students and faculty. Therefore, he would not be permitted to participate in the program. Pursuant to a Resolution Agreement with OCR, the College was require to offer the student a opportunity to reenroll and give good faith consideration to his request for academic adjustments (including his request that he take the course without having his blood drawn); adopt compliant procedures for addressing students’ requests for academic adjustments, auxiliary aids and services; and provide training to all relevant staff on the procedures. 

For more information, subscribe to: DDR iconDisability Direct Response,

Revisiting the definition of “Reasonable”

Below are the answers to questions submitted by webinar participants:

Can an institution impose a time limit for requesting accommodation, i.e., no more than two weeks into the semester?

Students with disabilities have a right to request accommodations at any time. There may be any number of legitimate reasons for a student to delay making a request beyond the time that disability services staff feel is acceptable on an administrative basis.  Those reasons might be a recent diagnosis or change in the manifestations of the student’s condition, a change in course or program requirements, a desire or belief that accommodations will not be necessary, etc.….

Remember the standard in the law is reasonableness. The institution is entitled to a reasonable amount of time to review the request and make a determination of whether and what accommodations might be provided. This means that whenever the student chooses to make the request he/she will have to accept any adverse consequences, if any, that the timing of the request bring into play. Those consequences might be that the student’s preferred academic adjustment, auxiliary aid or service might not be available, or the accommodation might not be provided prior to an exam or some other important academic event. A good case to consult on this issue is Edmunds v. Eastern Michigan University, et.al., No. 09-11648 (E.D. Mich. 2009) – a case in which the student’s graduation was delayed by three months and the court ruled that the amount of time the institution took to approve the accommodation was reasonable.

If there are academic adjustments, auxiliary aids and/or services which your institution provides for which the timeliness of requests raises legitimate administrative issues, the better approach is to advise students of this fact and to give them guidelines concerning when or how their requests must be made in order to ensure that the office has an adequate amount of time to respond. The point is to provide clear notice to students of the things that might impact your ability to provide necessary and effective accommodations. However, even if a student does not make a request within the guidelines you have established, you should not refuse to consider the request. A good faith effort to address the request must still be made.

How much weight can be given to the argument that the student will not be given such an accommodation on the job, so we should not do so in the class?

The most important advice I can give you is to not engage in philosophical debating about such matters! Do not discuss generalities! Discuss specifics because the standard is students with disabilities must be able to perform essential functions with or without accommodations. Therefore such a question only makes sense within the context of specific duties and responsibilities in a clinical environment and/or a program where the purpose of the program is to train students to perform a specific job (e.g., once students complete the program they are licensed or certified for the job in question). See Northern Virginia Community College, No. 11-06-2036 (OCR 2006).

However, even under the circumstances noted above you must conduct the deliberative process in good faith. Specifically:

  • The specific skills and/or functions must be clearly identified;
  • The evidence must support the assertion that they are in fact essential and have been treated as such with respect to all similarly situated students;
  • There must be a full assessment of the student’s ability to satisfy the essential requirement(s) involving all necessary experts, including disability services staff;
  • All adverse determinations must include evidence that alternative means of accommodating the student were considered; and
  • The ultimate decision made regarding the student in question must be rational, logical and free from bias and discriminatory animus.

What are the ramifications when a student with a documented disability wants to take a specific course but has no idea what accommodations might be reasonable to access the course? Additionally, the institution is not sure how to accommodate the student effectively either. Is the institution responsible for finding a way for the student to access the course?

The obligation of the institution is to provide effective and necessary academic adjustments, auxiliary aids and services to students with disabilities. Over time, by agency rulings and court decisions those have been defined as reasonable accommodations. The situation described in this question is exactly what the interactive process is intended to address. What should occur is that the disability services staff a) works with the student to clearly identify the manifestations of the student’s disability, as well as, those accommodations that have been effective for the student in the past; b) meets with those in the academic program to get a clear understanding of course requirements and expectations regarding the participation and performance of students; and c) consults with external disability and/or academic experts in the field to address any gaps in their knowledge regarding the nature of the disability and/or the range of academic adjustments, auxiliary aids and services that might be available. If there is a full exploration of the matter, as indicated above, the ultimate decision of the institution regarding whether there is a reasonable accommodation available will likely be respected and afforded deference because it reflects the proper type of deliberative process.

If an outside agency is teaching a course on your campus, does the agency need to comply with accommodation requirements at your institution, and if there is a cost involved, who is responsible for payment, the outside group or the University?

The question as written leaves out some very important facts…is the course solely owned and offered by the agency and is the lack of accommodation related to access to the course/program or access to the institution’s facilities? The guidance I can offer in the absence of those facts is as follows:

  • The institution should assume total responsibility for access to its facilities and
  • With respect to the course or program offerings, if the institution in any way provides what can be described as “significant assistance” to the agency in support of the course or program (e.g., marketing, registration, etc.…), the institution may, in fact, have some responsible for providing access to program participants. See Thomas M. Cooley, No. 15-08-2067 (OCR 2010).

A graduate student is receiving notetaking assistance but has indicated that she does not want to notify her professor because she has identified her own notetaker. She felt that it would be a violation of her confidentiality to let the professor know since she does not require the professor’s assistance to implement the accommodation. Are faculty members entitled to notification regarding accommodations even if they are not required to do anything to implement the accommodation?

This question reflects a common misunderstanding regarding a student’s rights under Section 504 and the ADA. Neither of these statutes confers a right to privacy and/or confidentiality to students with disabilities. The statute that provides such rights to students is FERPA. Unfortunately, for this student, under FERPA faculty in their courses fall into the category of “school officials with a legitimate educational interest.” More importantly, despite the attempts of the student to make it a privacy issue, it is not a privacy issue. It is the responsibility of students seeking accommodations from institutions to adhere to the legitimate policies and procedures of the institutions. It is certainly reasonable for an institution to keep faculty members informed about the accommodations that are provided students in their class. Thus, if this student chooses to avail herself of the right to be provided academic adjustments, auxiliary aids and services she cannot dictate the manner in which the institution administers the program. Whether and to what degree the faculty is included in the accommodation process is for institution administrators to determine.

If a student receives accommodation at college but cannot use those accommodations on a provincial licensing exam, what do you suggest the disabilities advisors should do about it?

The College is charged with providing reasonable accommodations with respect to its programs, services and activities. The fact that a third party agency handles its responsibilities in a different manner should not influence how the College makes decisions. The only thing that disability services staff can do under such circumstances is advise students, who intend to follow a path that would lead them to having to take the exam in question, of the agency’s past practices and suggest to the students that they should prepare for the possibility that they might not receive certain accommodations.  

If a student receives note-taking assistance as an accommodation, would it be reasonable to provide classmate notes even if the student prefers to have a specifically hired note-taker sent to class?

A university offers two types of screen readers, but a student is most proficient in a third that the university does not currently provide. What role does the student have and what role does the university have?

While certainly you should, as a part of the interactive process, give students the opportunity to state their preferences and explain why they believe particular academic adjustments, auxiliary aids and services are necessary, ultimately the institution is entitled to make the decision regarding the accommodations that will be provided. The obligation is to provide an accommodation that is effective. Thus, between two equally effective accommodations, the institution gets to decide. However, under circumstances where you opt not to provide what the student prefers, it is vitally important that you ensure that what you do offer as an accommodation is, in fact, effective and that you immediately and efficiently address any problems the student brings to your attention about the accommodation. Further, regarding the screen reader question, the university should ensure that there is adequate training and/or support provided to students who lack familiarity and/or proficiency with respect to the readers that are available. 

There is a blind student who is not able to use JAWS because she has very limited pc skills. The state voc rehab agency refuses to provide JAWS training to the student because they feel her employment goals is unrealistic. She is enrolled in an online certificate program and is asking us to read all online content, message boards, chats, etc. with a human reader. Is this reasonable and at what point do pc skills become essential qualifications?

When students enroll in online courses they know going in that they will have to be able to use a computer to access course material and to participate in the course. The student and the institution share a responsibility, i.e., the student must have the ability to use a computer, including necessary adaptive equipment or software, and the institution must make sure that the course offering is accessible. Thus in the example above, if the institution has met its obligation to ensure that the online course is fully accessible to those using adaptive technology such as JAWS then the student has failed to meet her obligation. It is not reasonable for the institution to accommodate the student in the manner she is requesting. If your institution offers JAWS training on campus you might suggest that the student avail herself of such training prior to attempting additional online courses.    

What about if the student’s disability plays into their inability to meet/follow procedures, say because of an anxiety disorder?

Once again this is a question in which insufficient facts have been provided in order for me to give a meaningful answer. The best guidance I can provide is as follows:

  • The institution should offer reasonable accommodations that would assist the student in meeting or following essential procedures/requirements.
  • If the student is unable to meet essential requirements with or without accommodations, the student is not qualified. For example, a student in an allied health clinical placement who is unable to follow proper patient treatment procedures when he/she experiences an anxiety attack.

A good case to consult on this issue is, Schwarz v. Loyola University Medical Center, No. 08 C 5019 (N.D. Ill. 2012).

More and more requests coming from students leaving k-12 are geared at issues like academic coaching (i.e., study guides) as well as asking faculty to change their teaching styles (e.g., not write on the board or walk and talk at the same time). How do we approach such requests?

I believe that these types of requests reflect a lack of understanding regarding the postsecondary environment. First, academic coaching is, arguably, not an accommodation; but rather, an extra instructional service or, alternatively, homework assistance. Therefore, to such requests you should refer the student to any study aid programs that the institution offers to all of its students such as learning labs.

Regarding the issue of asking faculty to change their teaching style if you were disposed to entertain such requests where would it end? Would students have the right to request that faculty not teach using a discussion format, would they be entitled to ask that faculty not give pop quizzes, or demand that a course be offered as an independent study? Clearly this is not reasonable. The academic adjustments, auxiliary aids and services that students are entitled to receive are those that offer them the opportunity to participate in the course in the manner in which it is structured and is, in fact, being offered.

In your alternate format, example where a student does not pick up/use the materials provided, are there any guidelines for determining the point at which the accommodation can be rescinded? Can it be rescinded?

The burden is always on the student to establish that a requested accommodation is necessary in order for him/her to enjoy access to the institution’s services, programs or benefits. The second that there is clear evidence that the student does not need or is not using a requested accommodation institution administrators have the right to revisit the question of the need for the accommodation. Under those circumstances, the student has the responsibility to provide additional documentation to not only support the continued need for the accommodation; but also, to explain the fact that the accommodation was not previously used. This is an extremely high threshold for the student. In the example above, it would be legitimate for the institution to discontinue the provision of materials in an alternate format and to demand that the student support the need for any further accommodation including a different type of accommodation.

Is there ever an instance where the cost or overall expensiveness of an accommodation would justify not providing a student a particular accommodation?

Certainly, there is the provision in the law that relieves institutions from providing those things that would be an undue financial burden. It is important to understand that declaring that a requested accommodation is an undue burden and proving it to the satisfaction of OCR and/or the courts is not the same thing. Proving that something is an undue financial burden brings the entire budget of the institution into question not just the budget of the disability services office and/or a particular program. Further, even if it can be legitimately argued that a particular accommodation represents an undue burden, the institution is still obligated to provide access to qualified students with disabilities and must; therefore, consider the availability of alternative accommodations.

If a student coming from another institution before this one is receiving the “incorrect” accommodations (non-documented), is the current institution required to keep providing the incorrect accommodation?

No! Both OCR and the courts have been clear in stating that one independent institution, agency or entity is not held to the decisions made by another in the accommodation process. Each institution, agency and/or entity is entitled to enforce its own policies and procedures and make its own decisions.

Whose role is it to assist a student in taking out books, supplies, etc… due to his disability? Is it disability services or the student’s personal assistant?

It depends upon whether the student’s difficulty is the result of the institution’s failure to ensure that the facility or program/activity is accessible. If, for example, the student needs assistance because the path of travel into and around the bookstore is inaccessible then certainly the institution has some responsibility. If; however, the facility is accessible and the student needs help getting his/her books from the bookstore to his car because of the limitations imposed by his/her disability then this is a personal need that his/her personal assistant should address.

You have referred to court cases and OCR letters, where can we obtain these resources?

For the court decisions, your campus librarian can assist you in accessing the sites for federal court decisions. For Department of Education settlement agreements and OCR rulings, you can consult the DOJ and OCR agency websites. Many of the cases I reference are summarized on our subscription service, DDR iconDisability Direct Response, and AHEAD has a legal database that includes OCR rulings and court decisions for members.

Argenyi V. Creighton University

Argenyi V. Creighton University, No. 8:09CV341

 

Did Creighton University Medical School deny Mr. Argenyi “an equal opportunity to gain the same benefit from medical school as his nondisabled peers by refusing to provide his requested accommodations?”  The student was denied CART and interpreter services.  A jury may provide the answer to that question soon. This is an important case. The Eight Circuit Court of Appeals has previously ruled on some extremely significant issues. (No. 11-3336) They include:

  • It was not proper for the District Court to conclude that the student was not entitled to his requested accommodation unless he would be “effectively excluded from Creighton’s programs without them.”
  • The regulations require postsecondary institutions to provide auxiliary aids and services to enable individuals to fully and equally participate in their programs. The question of whether the aids and services provided by Creighton ensured effective communication must be answered.
  • The statements of students regarding the effectiveness of aids and services provided cannot be summarily rejected or disregarded as “unsupported self-serving allegations.” An individual’s experience regarding particular aids and services, as well as, their effect on effective communications is valid and relevant information.
  • Decisions about whether a particular auxiliary aid and/or service will be provided cannot be labeled as purely “academic” decisions entitled to deference when the issue of the impact on the essential requirements or the curriculum has not been addressed (i.e., Would the request result in a fundamental alteration?). Further, decisions not to provide aids or services for financial reasons are not entitled to deference.
  • The mere fact that a student passes a course without a particular auxiliary aid or service does not answer the question of whether the student was provided full and equal access to the program.

This case has the potential to provide substantial guidance regarding the balancing of the rights of students with disabilities and the protection of academic standards.

STAY TUNED

More Shots Fired in the Battle for Access to Technology

Settlement Agreement between the Regents of the University of California and Disability Rights Advocates

The university entered into a settlement agreement that requires the implementation of extensive strategies regarding the provision instructional materials to students with print disabilities. Key provisions of the agreement include:

  • Adoption of Alternative Media Guidelines;
  • Stringent timeframes regarding the provision of alternative media;
  • Ongoing instructional assistance for students, as well as staff and administrators concerning request procedures and guidelines;
  • Provision of personal readers as an alternative media solution;
  • The employment of appropriate staff to ensure access;
  • Development of an online alternative media request/response tracking system;
  • Provision of resources to assist students in conducting online searches to locate accessible materials, including developing a Print Access Guide;
  • Specific provisions outlining the role of faculty including actions that must be taken should faculty fail to comply;
  • Specific provision regarding the conversion of supplemental course materials;
  • Provision of assistive technology in campus computer labs; and
  • Provision of library materials in accessible alternative formats.

South Carolina Technical College System Compliance Review

OCR concluded as a result of a proactive compliance review of the South Carolina Technical College System (SCTCS) that the websites operated by the system and two it its colleges were “not readily accessible to persons who are blind, have low vision, or have other print-related disabilities.” In addition to interviewing responsible disability services and technology staff, over 100 websites were reviewed. The ultimate conclusion was that the sites were not in compliance with Section 504 and the ADA.

The System and the State Board entered a voluntary resolution with the Department of Education. That agreement requires the System and the Board to:

  • Ensure that the System’s websites and the websites of member colleges are accessible for students with disabilities;
  • Develop a resource guide concerning web accessibility requirements;
  • Annually review the websites and monitor steps to correct accessibility problems.

The reference number for OCR’s letter of finding and the settlement agreement is No. 11-11-6002.

DOJ Concludes that Law School Application Process is Inaccessible

The agreements addressed the fact that the LSAC on-line application service used by laws schools nationally to process applications is inaccessible for applicants who are blind and who have low vision because the process does not enable individuals to use adaptive equipment, such as screen readers. The agreement with LSAC provides that by the beginning of fall 2012 the online application process will be fully accessible to individuals who use screen readers. The agreement with the Law School requires the school to modify its website “to notify potential applicants of a process they may use to apply to law school until the LSAC electronic application process has been made fully accessible” and to cease using the LSAC process for the fall 2012 application cycle if the LSAC site is not fully accessible at that time.

Therapy/Comfort Animals in the Housing Environment

The Department of Housing and Urban Development filed a charge of discrimination (No.: 07-10-0930-8) against the University of Nebraska for failure to modify their no pet policy to permit a student to live in university housing with her dog, a “therapy animal” that provided her emotional benefits. The University’s policy provided that only certified service animals were permitted in University housing. It was further alleged that the University’s inquiries regarding the severity of the student’s disability exceeded what was necessary to evaluate the student’s request for reasonable accommodation.

Food Allergies Accommodation Issues

A December 20, 2012 settlement agreement between The United States of America and Lesley University (DJ 202-36-231) resolved a complaint which alleged that students with food allergies were denied full and equal access to and enjoyment of the University’s food service and meal plan system. 

The Agreement provides, in pertinent part:

  • Food allergies may constitute a disability under the ADA.
  • Institutions are required to provide reasonable modifications that do not fundamentally alter the nature of their dining and food service plans and programs.
  • The University is required through Disability Services to work with students to develop individualized plans to address their accommodation needs regarding food allergies.
  • The food choices and meals offered to students pursuant to plans to address their food allergies must be “nutritionally comparable to the food choices offered other students, to the extent reasonably possible.”

The University is required to incorporate into the contract with the third party Food Service Provider the obligation to comply with its policies and procedures regarding reasonable modifications. Additionally, there is a provision requiring the Food Service Provider’s staff to receive educational training regarding a) food allergy awareness; b) cross-contamination, proper food storage, preparation and food safety practices; c) handling inquiries regarding allergies; and d) the University’s procedures for addressing student requests for meal plan modifications and exemptions. Further, the University is obligated “to enforce the Food Service Provider’s compliance” with the above described contact provisions.

Access to Extracurricular Athletic Programs

On January 25, 2013, OCR published a Dear Colleague letter which included guidance regarding the obligation to provide equal opportunities for students with disabilities with respect to their participation in athletic programs (i.e., intercollegiate, club, and intramural). Despite the fact that the letter addresses the participation of students in elementary and secondary school environments, OCR specifically noted that postsecondary institutions have similar obligations regarding the access and participation of students with disabilities.  The letter addressed the following issues:

  • Participation in selective or competitive activities and/or programs;
  • The impact of rules of athletic associations, organizations, clubs or leagues;
  • Provision of separate or different services;
  • Proper procedures for accessing the ability of a student with a disability to participate;
  • Determining whether requested modifications are reasonable; and
  • Circumstances under which additional athletic opportunities should be offered.

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