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:
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.
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