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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.

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