ADA/Section 504 Basics: Everything You Need to Know – to Begin

ADA/Section 504 Basics:Everything You Need to Know – to Begin

Jeanne M. KincaidDrummond Woodsum

100 International Drive, Suite 340Portsmouth, NH 03801

603/[email protected]

CaveatO The content contained in these slides

and shared during the seminar is intended for informational purposes only and is based upon federal law.

O The participant is cautioned that state laws may afford individuals with disabilities greater protections.

O The participant is cautioned that none of this information should be treated as legal advice.

Drummond Woodsum PTI: 2014 2

ADA/Section 504 Obligations

O Not to unlawfully discriminate on the basis of disability

O Provide reasonable accommodations to enable equal opportunity that is meaningfulO All campus programs, activities and

services


Reach of the LawsO Think broadlyO General principle: if the campus

offers it, it must be accessibleO Example: no duty to provide

transportation


Where Does Your Campus Fall?

O All recipients of federal financial assistance: Section 504 of the Rehabilitation ActO But very different than K-12

O Private colleges/universities: Title III: 28 C.F.R. Part 35

O Colleges/universities operated by state or local governments: Title II: 28 C.F.R. Part 36


A Legal FrameworkO How to analyze accommodation

requests


Steps to the Framework

1. Is the student disabled?2. Does the student’s documentation meet your

guidelines?3. Is the request directly linked to the underlying

disability?4. Does the documentation support the

requested accommodation in the student’s mitigated state?


Steps to the Framework

5. Was the request made and timely6. Is the request necessary to enable the

student to access the campus’ programs, activities and services?

7. Is the request appropriate?a. Is the student otherwise qualifiedb. Does the student pose a direct threatc. Does the request impose an undue

burden (financially and administratively)


Framework Principles1. Institution generally acknowledges the

diagnosis if it meets documentation criteria

a) Unless it is in a position to challenge it with its own expertise

2. Disability services office generally decides is the student disabled

a) Strictly an institutional question as to how to staff this issue

3. Third party evaluators make accommodation recommendations


Framework Principles4. Institution decides upon

reasonableness of requestsa) Caveat: going it alone as a disability

services office is rife with problemsb) Institution decides upon essential

programmatic criteria


Step One – Disability Status

O Is the student disabled?O Americans with Disabilities Act (ADA)O Rehabilitation Act (504)O Impact of proposed ADAAA Title II

and Title III rulesO State and local laws


Who Is Eligible?O Students who have:

O A physical or mental impairment (including health impairment)

O Which substantially limitsO One or more major life activities


The ADAAA in a Nutshell

O Focus on the disability definitionO Significantly expands who may qualify as

disabledO Under both the ADA and 504

O Does not alter the physical/mental impairment element

O Significantly expands the list of major life activities

O Significantly weakens the definition of “substantially limits”


Presumptive Disabilities

O Proposed ADAAA rules:O Although there are no per se disabilities, this

list is subject to a rebuttable presumption of disability statusO Rules do not bar a college from requiring

documentationO Tip: in the face of authentic documentation, if a

campus is going to deny protection to a student diagnosed with any of the following conditions, expect to face a heavy burden of proofO 28 C.F.R. §§ 35.108(d)(2); 36.105(d)(2)


Presumptive Disabilities

• Epilepsy• Muscular dystrophy• Multiple sclerosis• HIV• Major depressive disorder• Bipolar disorder• Post-traumatic stress

disorder• Traumatic brain injury• Obsessive compulsive

disorder• Schizophrenia

O DeafnessO BlindnessO Intellectual

disabilityO Partially or

completely missing limbs or impairments requiring wheelchair

O AutismO CancerO Cerebral PalsyO Diabetes


Original Major Life Activities

Drummond Woodsum PTI: 2014

O Caring for oneself

O Performing manual tasks

O SeeingO Hearing

O WalkingO SpeakingO BreathingO LearningO Working

16

Additional Major Life Activities


O EatingO SleepingO StandingO LiftingO Bending

O ReadingO ConcentratingO ThinkingO CommunicatingO Operation of a

major bodily function

17

Proposed ADAAA rulesO Will add:

O SittingO ReachingO Interacting with others

O 28 C.F.R. §§ 35.108(c); 36.105(c)


How the MLA is PerformedO The proposed rules allow

consideration of:O Condition;O Manner; andO Duration

O 28 C.F.R. §§ 35.108(d)(3); 36.105(d)(3)O Example used by the DOJ:

O How long an individual with a learning disability may take to read, write, speak or learn – in comparison with most people


Intermittent or Remission

O Intermittent conditions and conditions in remission qualify as disabling if substantially limiting when active


Temporary Impairments

O Are now murkyO Under prior law, courts often used a

six month ruleO OCR followed suit

O Is the condition minor and transitory?


Substantially LimitsO Still not definedO But what it is not:

O Severely restricts is too strongO Significantly restricts is too strong


Comparison GroupO Most people in the general

populationO Proposed rules


23

Mitigating MeasuresO The ameliorative effects of

mitigating measures may not be considered when determining whether individual has a disabilityO But may be considered in determining

what if any accommodations may be necessary and appropriate


Mitigating Measures Defined

O Broadly defined to include measures such as:O Reasonable accommodationsO Implanted devices and medical equipmentO Hearing aidsO Assistive technologyO Learned behavioral or adaptive

neurological modifications (not defined)O Exception

O Ordinary eyeglasses and contact lensesDrummond Woodsum PTI: 2014 25

Record of DisabilityO The proposed rules emphasize that such

individuals *might* qualify for accommodationO Example cited: high school student has an

impairment that is no longer substantially limiting; asks to miss class or have schedule change to permit follow up health care appointmentsO 28 C.F.R. §§ 35.108(e)(3); 36.105(e)(3)


Record of DisabilityO Kincaid’s thinking: I can’t think of any

examples – O Ask yourself – what is the campus accommodating

if the student does not have a current disability?O How about: I have been clean and sober for a

decade and I want an exemption from culinary program’s demand that I taste wines


Regarded as DisabledO Is much easier to establish for

discrimination purposesO If adverse action is taken against an

individual based upon his/her physical impairment, so long as it is not minor and transient (lasting or expected to last six months or less)

O Such a person does not qualify for accommodationsO Watch out for hostile environment claims


TipO Check your brochures, websites,

handout materialsO Update them in a manner that does

not conflict with the ADAAA


Template IdeasO Disabled O Not disabled

O Including temporary conditions/injuries

O In betweenO Without deciding disability status, the

institution will provide the following supports


Step 2 - DocumentationO Documentation

O For determining ADA/Rehabilitation Act eligibility


RememberO You are analyzing the student’s

condition in its unmitigated state at this stepO To the extent the mitigating measures

are ameliorative


Congressional IntentO Public and private entities should not

need to spend much effort on whether or not an individual qualifies as a person with a disability

O The burden of proof remains with the student


How Much Documentation?O Two purposes:

O Is this person an individual with a disability?

O In a higher education setting, documentation to support the need for and type of accommodation


Step 3 - LinkageO Examine how the documentation

links the recommended accommodation to the underlying disability


General PrincipleO If the request is not directly

supported by the documentation, the institution is not obligated to honor itO But of course, draw upon your own

professional experience


Step 4 – Mitigating Measures

O Now is the time to factor in mitigating measuresO Does the documentation address the

student’s past and current use of mitigating measures?

O Is the documentation clear that the accommodation request is necessary and appropriate in light of the student’s use of mitigating measures?


Step 5 - NoticeO Did the student request the

accommodation and in a timely manner?O It is not the institution's obligation to

determine on its own the appropriate accommodation

O Do you (or should you adopt) timeliness criteria?

O Did the student follow the proper steps?


Step 6 - NecessityO Is the requested accommodation

necessary to enable the student to access the institution’s programs, activities and services?O Query: would the student be denied

access unless the institution implements the request?

O Examine the request as well as alternative solutions


The Most Sought AfterO Testing accommodations

O Especially more time


Not an AccommodationO Services of a personal nature do not

qualify as accommodations


Step 7- Appropriateness

O Is the requested accommodation “appropriate”?O Would it fundamentally alter the program, activity,

service? Ask if the accommodation would:O Have the effect of lowering expected outcomes or

standards?O Render the student not otherwise qualified?O Give the student an unfair advantage over his/her

peersO Impose an undue burden?

O Does the student present a direct threat despite the provision of reasonable accommodation?


Academic Decision-Making

O Courts grant deference to academic decision-making in the absence of evidence of disability-based bias


43

General Practice TipsO If the institution endorses the accommodation,

it effectively owns itO Is the institution promising more than it can

deliver?O Is the institution exceeding its legal obligations?

O If you promise it, then you are expected to deliver

O Nothing is free!O Review your accommodation forms

O Consider language that affords wiggle room to the faculty


General Practice TipsO The accommodation “memo” may be

one of the most important forms in your file drawer


Analyze the MemoO Is it clear what the faculty is

expected to do?O Is your office usurping faculty

academic decision-making?O Are the accommodations

recommended or demanded?O Is it clear that it is the student’s

responsibility to let your office know if there is a dispute about accommodations or their implementation?Drummond Woodsum PTI: 2014 46

Analyze the MemoO Can it be misconstrued?

O Does extra time for tests mean a student receives more time on performance based exams, labs and in clinical settings?

O The interactive process may involve the facultyO It is not improper for accommodations

to be refined based upon the course


Hot Issues in ADA LandO Students at riskO Access to information

O Web accessO Instructional accessO Online instruction

O AbsenteeismO Extended time on assignmentsO Service and assistance animalsO Food allergiesO Housing accommodations


ADA/Section 504 Basics: Everything You Need to Know – to Begin

Documents

Transcript of ADA/Section 504 Basics: Everything You Need to Know – to Begin