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Salome Says

A blog by Salome Heyward about accessibility compliance for schools and companies.
Tag » ADA

One of the difficulties that institutions have in properly managing faculty participation in the accommodation process is the failure to provide direction, support and guidance to faculty members and adjuncts regarding both their responsibility and the rights of students with disabilities. To varying degrees many colleges and universities are guilty of not striking the necessary balance between traditional academic freedom protections and federal compliance mandates. Institutions cannot leave the matter of whether and to what degree students with disabilities are accommodated solely to the discretion of individual faculty members. OCR has ruled that postsecondary institutions are required “… to take steps as necessary to ensure that qualified students with disabilities are not subjected to discrimination because of the absence of educational auxiliary aids. University of Guam, No. 10072030 (OCR 2010)

There are a number of recent OCR rulings and court decisions that focus on the dynamics of the faculty-student relationship. For example:

Halpern v. West Forest University Health Sciences, 669 F.3d 454 (4th Cir. 2012) – The court responded to the assertions of a student with ADHD and an anxiety disorder that the University was required to accommodate his difficulty with meeting the professional standards adopted by the Medical School. The student’s first two academic years were marked by repeated instances of unprofessionalism (e.g., abusive behavior; lack of interpersonal skills; unapproved absences; resistance to feedback; and lack of truthfulness). When confronted regarding his behavior, the student asserted that his conduct was the result of the effects of his ADHD medication.

Following an approved medical leave to address the side effects of his medication, the student continued to exhibit unprofessional behavior.  The student did not seek accommodations (test accommodations) until his third year in the program. Ultimately, in response to additional instances of unprofessionalism, the School’s academic appeals committee recommended that the student be dismissed from the program. While maintaining that he was only guilty of isolated instances of unprofessionalism, the student asserted that he should be permitted to continue in the program under a remediation plan to address his behavioral problems. The plan he proposed was that he would participate in ongoing psychiatric treatment, as well as a program for distressed physicians. He also suggested that he be placed on strict probation.

The court in upholding the School’s decision to not grant the requested accommodations made several important pronouncements. Specifically:

  • The Medical School’s continued references to professionalism as a fundamental goal of the educational program, including listing the types of behavior that students were required to demonstrate prior to graduation, made the decision that the student failed to meet an essential requirement of a program of study, i.e., professionalism, an appropriate decision.
  • The student’s behavior in the program over a three year period reflected “an ongoing pattern of unprofessional behavior” rather than isolated instances of misbehavior.
  • The student’s requested accommodation was “unreasonable on its face” because the student had consistently maintained until his dismissal that his behavior did not impact his ability to participate in the medical school program. It was additionally noted that the remedial plan could best be described as being of “indefinite duration” with an “uncertain likelihood of success.” Institutions are not required to wait an indefinite amount of time for students to satisfy essential program requirements.

North v. Widener University, No. 11-6006 (E.D. pa. 2012) – A University argued that a student could not bring a complaint of being treated differently on the basis of disability because he had never officially disclosed that he had a disability. The court rejected the University’s claim by noting “[N]othing in Section 504 requires a student with a disability to provide official notification of disability in order to bring a claim for disability discrimination.”  The court further noted that the fact that the student was told by a faculty member, who served as his advisor, that he should not disclosed that he had a disability because it would be “viewed as a sign of weakness and unsuitability for the program”; potentially established that “the program suffered from a culture of discrimination.”

University of Houston, No. 06112030 (OCR 2011) – A student was provided an accommodation form which listed an approved accommodation as “consider extended assignment deadlines, if necessary.” One of the professors the student presented the form to refused to sign it and expressed the opinion that the accommodation was “too general, open ended, and unreasonable.” When the student sought redress from the disability services office, he was advised by the Director that “professors … were not obligated to grant accommodations… and such a decision was to the professors’ discretion.”  OCR took issue with the both the practice of permitting faculty members to make unilateral decisions concerning the accommodations students receive, as well as the fact that the University had not adopted and implemented a procedure to address situations where the disability services office and professors disagree about the accommodations to be provided students.

For a full discussion of the role of faculty in the accommodation process, join us on November 13, 2012 for the next webinar of Best Practice Series 4: Faculty Behavior: Managing Faculty Participation in the Accommodation Process.

 

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

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

Documentation Standards

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

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

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

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

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

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

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

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

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

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

Service/Assistance Animals

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

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

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