The settlement agreement in the Penn State University case should be used as a guide by institutions addressing issues of access to technology. The significance of this settlement agreement is that it checks all of the important boxes for institutions either struggling to meet their compliance obligations or needing guidance regarding the important areas to review when assessing their compliance level. Specifically:
Lack of an institutional approach to compliance – Access to technology is an institution wide issue. It comprises all of the means and methods in which the institution employs technology in delivering it services, opportunities and benefits. Access to technology for individuals with disabilities cannot be limited to a consideration of adaptive/assistive technology offered as an academic adjustment for students with disabilities and/or the specific accommodations offered to individual employees.
The absence of accessibility based technology policies and guidance – Institutions must adopt policies and procedures that embrace the obligation to provide access to technology, in all of its uses, for individuals with disabilities. Compliance expectations, goals and requirements should be identified for all pertinent departments, offices and work units of the institution. Those policies and procedures should specifically identify those responsible for implementation, assessment and enforcement.
Adoption of meaningful action steps – Institutions must provide the necessary support and resources to achieve compliance. Such steps include employing individuals who have the necessary expertise regarding programming, as well as, the uses of adaptive and assistive technology; including accessibility strategies and needs at the planning and design of significant projects; implementing processes and procedures to achieve compliance strategies; investing the necessary resources to fund accessibility projects; and providing necessary training and guidance to pertinent program participants.
Managing third party relationships – Institutions should not enter into agreements with third parties providing for the delivery of services, programs and/or opportunities to their students, program beneficiaries and employees without investigating the degree of access afforded individuals with disabilities. It must be assured either that there is full accessibility or that alternatives means of providing access are available that would provide individuals with disabilities the ability to acquire the same information, engage in the same interactions, and enjoy the same services with substantially the same ease of use. Agreements that do not satisfy these conditions should not be entered into absence extraordinary circumstances.
Pursuant to 34 C.F.R. Sec. 104.22(f) colleges and universities are responsible for implementing policies and procedures “to ensure that individuals with disabilities can obtain information regarding the existence and location of services, activities and facilities that are accessible to and usable by them. The term ‘activities’ encompasses all extracurricular offerings and events that take place at [colleges and universities], such as theatrical performances, concerts, lectures, athletic events, student organizational meetings, or any other activity, whether sponsored by a department, an approved student organization, or a residential house.”
Processes and procedures that merely focus on assisting sponsoring entities in fulfilling the responsibility to provide access as events are planned and organized are not sufficient. There also must be processes and procedures directed towards advising students, prospective audience members and participants regarding accessibility of the campus as well as specific events, activities, performances, etc… . Individuals should be provided information concerning accessible locations, activities and facilities. Additionally, notice should be provided concerning the offices and/or individuals who should be contacted regarding accommodation needs.
Procedures should be adopted to a) disseminate and make readily available accessibility information to students, as well as, members of the public seeking to attend events and activities; and b) ensure that sponsoring entities identify a contact person for providing accessibility information and responding to accommodation requests. It is not enough for institutions to publish such procedures. Institutions must actively enforce them to ensure that they are uniformly followed.
The fact that the institution has a ADA or Disability Coordinator who assumes responsibility for being a source for accessibility information and/or arranges for accommodations when an individual makes a specific request does not satisfy the institution’s compliance obligation. OCR has rule that the availability of one person does not satisfy the statutory obligation to put in place “a procedure ensuring that persons with disabilities can obtaining information regarding the existence and location of facilities that are accessible.”
(See Harvard University, No. 01-03-2053 (OCR 2006)).