Transcript ADA/Section 504
ADA/Section 504
REVIEW OF THE LAW
LEGAL LANDSCAPE
Titles II and III of the Americans with Disabilities Act of 1990, ( “ ADA ” ) Section 504 of the Rehabilitation Act, 1973 Fair Housing Act ( “ FHA ” ) State Law
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Title II & III ADA 1990
Title II
Prohibits discrimination on the basis of disability by public entities, including state colleges and universities, regardless of whether they receive Federal financial assistance
Title III
Prohibits discrimination on the basis of disability in private education facilities and in the activities of places of public accommodation (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA) The language of ADA tracks Section 504 and explains that the remedies, procedures and rights under the ADA are the same as under the Rehabilitation Act © 2012 ATIXA all rights reserved
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Section 504 of the Rehabilitation Act, 1973
A federal civil rights law, prohibits discrimination on the basis of disability in all programs or activities that
receive Federal financial assistance
Forbids institutions from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services Codified at 29 U.S.C.
§ 701 Enforced by the U.S. Dept. of Education Covers “ any program or activity ” © 2012 ATIXA all rights reserved
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Section 504 Scope of Covered Programs
All of the college’s operations, programs and activities subject to Section 504 requirements, including: Academics Athletics Employment Housing Events Web-based educational services © 2012 ATIXA all rights reserved
Section 504 Administrative Requirements
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Schools must have clearly defined policies and procedures and implement them consistently Schools must have preventive measures in place to position an institution to manage a report of disability based discrimination. Schools must provide: notice of nondiscrimination notice of 504/ADA Coordinator notice of 504/ADA grievance procedures notice of how to obtain academic adjustments and auxiliary aids © 2012 ATIXA all rights reserved
Fair Housing Act
FHA makes it unlawful to “ discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such a dwelling because of a handicap person … ” FHA applies to residential “
dwellings
residence halls and dormitories.
” , a term that likely encompasses campus housing including
WHY IS IT IMPORTANT TO UNDERSTAND DIFFERENT LAWS?
Laws apply differently to public vs. private institutions Laws apply different definitions and standards as it relates to service vs. assistance/comfort animals Laws may impose different standards or response protocols
Who Is Protected Under Sec 504?
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Under this law, individuals with disabilities are defined as
persons with a physical or mental impairment which substantially limits one or more major life activities persons who have a history of having a physical or mental impairment, or persons who are regarded as having a physical or mental impairment that substantially limits one or more major life activities © 2012 ATIXA all rights reserved
What Is A
“
Major Life Activity
”
?
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Major life activities include: Caring for one's self Walking Seeing Hearing Speaking Breathing Working Performing manual tasks Learning © 2012 ATIXA all rights reserved
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What Is A
“
Major Life Activity
”
? (cont
’
d)
Examples of impairments which may substantially limit major life activities, even with the help of medication or aids/devices, are: AIDS, alcoholism, blindness or visual impairment, cancer, deafness or hearing impairment, diabetes, drug addiction, heart disease, and mental illness, learning disability.
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What Is A
“
Major Life Activity
”
? (cont
’
d)
For students this means that a student with a qualifying disability will be “ otherwise qualified ” for admission to a specific academic program if he/she can meet all the necessary and articulated “ essential functions ” of the college program with reasonable accommodations A student with a disability is also protected from discriminatory harassment directed at them because of their disability © 2012 ATIXA all rights reserved
Accommodation 504/Title II Principles
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Colleges must ensure that students with disabilities are not discriminated against due to the absence of auxiliary aids or services. (Examples: taped texts, note takers, readers, adapted equipment) Colleges must make academic adjustments or other reasonable modifications to policies, practices, or procedures to ensure they do not discriminate. (Examples: change in length of time to complete a program, substitution of courses).
Test format and administration should measure a student ’ s achievement, not the student measure).
’ s impaired sensory, manual, or speaking skills (except where such skills are the factors the test purports to © 2012 ATIXA all rights reserved
Accommodations Process
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Colleges and students should engage in an “ interactive process ” to determine appropriate accommodations that meet the student ’ s individual needs.
If a student wants an academic adjustment, he or she has the initial obligation to provide notice to the institution of a qualifying disability and need for academic adjustment or auxiliary aid or services. Colleges may establish reasonable standards for documentation.
Aids and adjustments must be provided in a timely manner.
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Considerations for Providing
“
Equality
”
in Opportunities
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1.
What can the institution do to provide students with disabilities equal access to the educational benefits or opportunities provided through technology?
2.
How do the educational opportunities and benefits provided to students with disabilities compare to those provided to students without disabilities?
Are they equally available?
Are they available in a timely manner, similar to those provided to students without disabilities?
Will it be more difficult for students with disabilities to obtain the educational opportunities than for non-disabled students?
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ADDRESSING SIGNIFICANT ISSUES
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504/ADA Guidelines Regarding Mental Illness
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A student with a mental disorder has a disability Both the ADA and Section 504 Apply Section 504 gives recourse to students who are discriminated against on the basis of a recognized disability. The Americans with Disabilities Act (ADA) entitles students who are otherwise qualified to participate in the programs and activities of college to reasonable accommodations once they seek qualification with the campus disability services office. Neither law requires that a suicidal student march into the disability services office to qualify as disabled. Today there are only limited circumstances in which OCR will find that our decision to separate a student for disruptive behavior is not a violation of Section 504.
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A Psychiatric Disability Is….
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Defined as a mental impairment that substantially limits one or more major life activities Examples of mental disabilities include: Major depression Bipolar disorder Schizophrenia Anxiety disorders Post-traumatic stress disorders © 2012 ATIXA all rights reserved
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Addressing Involuntary Withdrawal
Engaging in withdrawing a student with a disability is complex The law changed in 2011 – no longer applies to “ harm to self ” as a basis for involuntary withdrawal. However, if a student is suicidal, no documentation is needed to assume a disability Students with disabilities have specific rights set forth by law The institution must engage in the “ Direct Threat Test ” © 2012 ATIXA all rights reserved
“
Direct Threat
”
Test
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Student poses a accommodation. “ Direct Threat ” , a “ significant risk cannot be eliminated or reduced by reasonable ” of substantial harm or safety of the individual to others that To rise to the level of a direct threat, there must be a high probability of substantial harm and not just a slightly increased, speculative, or remote risk; Significant risk determination must be made by considering (1) the duration of the risk, (2) the nature and severity of risk, (3) the likelihood that the potential harm will occur, and (4) the proximity of the potential harm. OCR- DUE PROCESS is necessary to challenge factual assumptions to challenge that behavior is a “ direct threat.
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“
Direct Threat
”
Test
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In a direct threat situation, a college needs to make an individualized and objective assessment of the student's ability to safely participate in the college's program; This assessment must based on a reasonable medical judgment relying on the most current medical knowledge or the best available objective (non-medical) evidence; The assessment must determine; the nature, duration, and severity of the risk; the probability that the potentially threatening injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will sufficiently mitigate the risk.
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Assessment for Direct Threat Test
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Not mandated to be a therapeutic assessment, but an overall assessment of a student’s ability to function effectively and safely in a campus environment. We are to use objective evidence, and if possible, the most current medical knowledge available OCR is, by practice, deferential to our determination of direct threat, but they insist that we make one. © 2012 ATIXA all rights reserved
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Ideation, Non-specific Threats, Gestures
The Direct Threat Test tells us that a student who is ideating, threatening or who is making non-specific gestures without a plan or means to carry though may not represent a high probably of substantial harm. For example, in the next case, George Washington University separated a student who reported suicidal thoughts at a hospital, it clearly overreacted. It did not make a finding that met the four elements of the direct threat test. © 2012 ATIXA all rights reserved
Nott v. George Washington University
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Student, Jordan Nott sought treatment for depression and suicidal ideation following the suicide of a friend The information was shared with administration at George Washington Mr. Nott was removed from campus on an interim basis as a substantial and immediate harm to himself or others The University offered Mr. Nott a hearing on the interim suspension or the right to voluntarily withdraw and take a leave of absence Following completion of recommended treatment and clearance by the counseling center he would be allowed to return Nott sued, alleging his rights were violated under ADA, Sec. 504, violation of privacy, infliction of emotional distress and other state and federal laws.
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Scheiszler v. Ferrum College
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When the Dean discovered that a student was suicidal, student was made to sign a behavioral contract. Further indications were given to the Dean that student still intended to try to kill himself. Student did in fact commit suicide. A negligence lawsuit claimed Ferrum knew or should have known that student was likely to attempt to hurt himself if not properly supervised, and that because Ferrum negligently failed to take adequate precautions, student died as a result © 2012 ATIXA all rights reserved
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The Court said that Ferrum College had a duty to protect a student from the foreseeable danger that he would commit suicide. While there is generally no duty to assist or protect someone from harming themselves, an affirmative duty will arise when there is a “ special relationship.
” The court found a “ special relationship ” was formed by Ferrum ’ s undertaking of efforts to intervene in the suicidal behavior. Where there was an obvious and “ imminent probability of harm © 2012 ATIXA all rights reserved ” , the college had a duty to do more than it did. Ferrum did not follow-up on subsequent suicide threats made by student
SERVICE vs. COMFORT ANIMAL
ADA Title II and III, Section 504 and FHA all prohibit discrimination based on disability and they all impose various obligations upon colleges and universities to accommodate service or assistance animals.
ADA: SERVICE ANIMAL
DOJ explicit that the following animals are not considered service animals under Title II or Title III: - Any animal besides a dog or miniature horse - Animals that serve solely to provide crime deterrent effect, and - Emotional support, comfort or companionship animals
SECTION 504: SERVICE ANIMAL
Section 504 implementing regulations do not define “ service animal ” , Department of Education Office of Civil Rights ( “ OCR ” ) adopted definition provided by Title II and III of the ADA.
FAIR HOUSING ACT SERVICE/ASSISTANCE ANIMAL
HUD applies a broader definition of “ assistance animal ” when enforcing Section 504 reasonable accommodation purposes, in the housing context HUD broadens “ service/assistance animal ” to include emotional support animals that provide very private functions for persons with mental or emotional disabilities.
STATE LAW
Many states adopted antidiscrimination statutes that require accommodation of service animals.
Therefore, institutions should consult local laws when setting campus policies related to service animals
RELEVANT CASE LAW
Secretary, U.S. Dept. of Housing and Urban Dev.
vs. University of Nebraska at Kearney
Charge of discrimination filed because the University refused to allow a student to keep a dog in her university-owned apartment to support her with depression and anxiety. Additionally, University also alleged to “ illegally inquire into the nature and severity of the student ’ s disability.
PRACTICE POINTERS
Federal laws provide a floor, not a ceiling Consider how, or whether, to distinguish between the treatment of trained potentially untrained campus “ “ service animals ” and assistance animals ” on Remember accommodations are not limitless Adequately train disability services and residential hall staff on nuances in law
SERVICE AND ASSISTANCE ANIMAL POLICY SUGGESTIONS
Overarching Principle: identify commitment to compliance with state and federal laws and what office to contact for accommodation of disabilities Request for Service or Assistance: University will determine on case-by-case basis whether such animal is a reasonable accommodation…balance needs of individual with impact of animals on campus as a whole.
Request for Documentation: University may require sufficient information and documentation to determine reasonable accommodation…letterhead of treating physician and includes information that allows university to determine qualified disability, how animal assists, animal training, and nexus with disability and animal services.
SERVICE AND ASSISTANCE ANIMAL POLICY SUGGESTIONS
Clear articulated accommodation review process Requirements for notification to institution on request for service animals i.e. 30 days before move-in date.
Clear articulated reasons for removal of service animal.
Owner fully responsible for animal vaccination, licensure, animal health, leash control, etc.
Appeal/ Grievance Process
APPLICATION TO YOUR INSTITUTIONAL POLICIES AND PROGRAMS
Implications for Responsibility
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Since all school programs, benefits and activities are subject to Sec. 504 and ADA, All faculty and staff are responsible to comply with the requirements This includes all professional interactions with students by faculty or staff For example, if a faculty member denies a student who is blind an equal opportunity to participate in a course by assigning inaccessible course content, the school can be held legally responsible © 2012 ATIXA all rights reserved
Critical Areas to Audit
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Disability Services Office protocol The Title IX Coordinator is not the head of this office!
On-line admissions and/or registration process Check all instructional program standards, and if “ essential functions ” are identified if important Recognize that accommodations must go beyond merely serving blind individuals Grievance protocol for reporting and addressing disability related complaints © 2012 ATIXA all rights reserved
More About Program Standards
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Creation of well-articulated program standards are essential to address circumstances when student with a disability cannot complete a program or benefit from it Identify graduation competencies Ensure any licensure/certification requirements are identified and programs appropriately aligned Ensure program requirements are consistent with accreditation requirements Ensure all field requirements are identified (both in clinical assignments and in the profession) © 2012 ATIXA all rights reserved
Program Standards (cont)
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Look at each course to determine what the outcomes are and how students with disabilities may be able to accomplish these with accommodations Ensure any use of web-content or e-readers are fully functional to accommodate spectrum of disabilities Consider applying Universal Design: Universal Design for Learning (UDL) is an educational framework, based on research, that guides the development of flexible learning environments that can accommodate individual learning differences © 2012 ATIXA all rights reserved
Program Design
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The regs state that whether a school is a bricks and mortar institution, on-line or offered in another virtual context the institution must comply with Federal disability discrimination laws The compliance standards must be in place even if there are no currently enrolled students with visual impairments Schools must include accessibility requirements and analysis as a part of their acquisition procedures. Important questions to ask include © 2012 ATIXA all rights reserved
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Title IX Coordinator Compliance Considerations
Sec. 504 and the ADA require that higher education institutions designate at least one person to coordinate compliance efforts Every institution of h.e. must adopt and publish grievance procedures to resolve complaints of noncompliance The D.O.E. recommends that all faculty and staff participate in professional development training about accessibility and emerging technology and their role in institutional compliance with disability discrimination law © 2012 ATIXA all rights reserved
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Section 504/ADA Coordinator and Grievance Procedures
Must provide oversight of disability program compliance Must ensure dissemination of notice of the institution’s non-discrimination policy Must ensure civil-rights based grievance procedures are in place to address complaints of discrimination © 2012 ATIXA all rights reserved
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Thank you!
ADA QUESTIONS?
[email protected]
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