Transcript Guckenberger v. Boston University, 974 F.Supp. 106, 135
© AHEAD. The material contained in this slideshow is not intended as, or a substitute for, legal advice and is meant only for use in conjunction with today's web conference. Official AHEAD statements about documentation are available at: www.ahead.org
Presenters: ◦ Jean Ashmore ◦ Scott Lissner Framework review Questions o Submitted early o During presentation Jo Anne Simon Carol Funckes Implementation discussion Scenarios
Documentation to establish eligibility as person with disability entitled to accommodations – basis for: ◦ Earliest guidance focused on learning disabilities, based on discrepancy model diagnosis ◦ Second edition of guidance - not disability specific, heavily based on evidence to prove disability, requiring external documentation
Developed in response to AHEAD Board of Directors’ recognized need for an update due to ◦ changes in laws, regulations ◦ evolving understanding of disability experience A conceptual framework for professional practices, not a list of guidelines Replaces and supersedes previous documentation guidance editions
“As social movements mature, they begin to look beyond the ‘letter of the law’, which emphasizes ethics and values, and promulgate systemic changes in attitudes, behaviors and institutional structures.” Leslie Kanes Weisman
Society Understanding of disability Understanding of accommodation Enforcement experience The statute The regulations for Titles II & III The regulations for Title I
“Any change, even a change for the better, is always accompanied by drawbacks and discomforts.” Arnold Bennett
Disability Studies Scholarship ◦ Challenge the dominant view of disability ◦ Explore social, political, cultural and economic factors ◦ De-stigmatize disease, illness and impairment ◦ Question personal and collective responses to difference ◦ Informs service delivery Diversity Perspective Universal Design U.N. Convention on the Rights of Persons with Disabilities
Mental or Physical Condition
Substantial Limitation
Major Life Activity
Includes but not limited to, caring for oneself, performing manual tasks, seeing, hearing,
eating
,
sleeping
, walking, standing, lifting,
bending
, speaking, breathing, learning,
reading
,
concentrating
,
thinking
,
communicating*
, and working.
* Added to the EEOC’s regulations 9
Immune Respiratory Circulatory Endocrine Digestive Reproductive Neurological Brain Normal Cell Growth Bowel Bladder 10
The comparison of an individual's limitation to the ability of most people in the general population often may be made using a commonsense standard, without resorting to scientific or medical evidence.
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No legislation or regulations require that documentation be requested or obtained in order to demonstrate entitlement to legal protections because of disability and seek reasonable accommodations. Postsecondary institutions may request a reasonable level of documentation. ◦ “Any request for documentation, if such documentation is required, is reasonable and limited to the need for the modification, accommodation, or auxiliary aid or service requested.” 29 C.F.R. § 36.309(b)(1)(iv) Purpose: to understand how the disability is connected to a barrier and how an accommodation may alleviate the barrier
Changes based on DOJ’s enforcement experience, research and public comments Intended to address concerns about inappropriate and burdensome requests for documentation Applies to public (Title II) entities including postsecondary education 14
Purpose: to prevent exclusion from educational, professional, or trade opportunities because of inaccessible exams or courses.
Applies to public and private entities that offer exams or courses related to applications, licensing, certification, or credentialing. Exams or courses must be given in a place and manner accessible to persons with disabilities, or alternative accessible arrangements provided. 15
“The Department [Justice]received one comment requesting that it specifically include language regarding examinations and courses in the title II regulation. Because section 309 of the ADA 42 U.S.C. 12189, reaches ‘any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or post secondary education, professional, or trade purposes,’ public entities also are covered by this section of the ADA.”
Primary Secondary Tertiary; Third-Party; External
•
Primary Documentation
• Student’s self-report •
Secondary Documentation
• Observation and Interaction •
Tertiary, third-party or external documentation
• Information from outside sources 18
It is only through understanding an individual's experience in context that we can translate diagnostic evaluations into useable information on the barriers and facilitators to access and full participation.
Both Successful and Unsuccessful Experiences Barriers & Problem situations Facilitators & Accommodations Tools & Adaptive Devices Social Networks & Assistive Services Skills & Compensatory Strategies Resources & Collateral Support Services
The weight given to the individual’s description will be influenced by its clarity, internal consistency, observed behaviors, congruency with available formal documentation results, and clinical narrative.
Give weight to documentation of past modifications, accommodations, or auxiliary aids or services received in similar situations including those provided in response to an Individualized Education Program or Section 504 Plan or as part of a less formal assistance plan.
Listening Note taking Speaking Writing Keyboarding Mousing Reading Sitting Attendance Group Participation Papers Timed Tests Deadlines Oral Reports Group Projects Computer Use Calculating Library work
Class Schedules Manipulating Objects Getting Around Transportation Diet Sleep Interacting With Others
“ A learning disability is not measurable in the same way a blood disease can be measured in a serum test. By its very nature, diagnosing a learning disability requires clinical judgment”. Judge Sotomayor, Bartlett v. New York State Bd. of Law Examiners; 2001
◦
Recommendations of qualified professionals familiar with the individual
◦
Results of professional evaluation
◦
History of diagnosis
◦
Observations by educators
◦
Past use of accommodations
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Examples From Justice
The significance of a letter or other communication from a doctor or other qualified professional would depend on the professional’s relationship with the candidate and the specific content of the communication, as well as how the letter fits in with the totality of the other factors used to determine testing accommodations under this rule. Similarly, an applicant’s failure to provide results from a specific test or evaluation instrument should not of itself preclude approval of requests for modifications, accommodations, or aids if the documentation provided by the applicant, in its entirety, is sufficient to demonstrate that the individual has a disability and requires a requested modification, accommodation, or aid on the relevant examination 26
Requires professional judgment Includes a deliberative, collaborative process ◦ responsive to the unique experience of each individual Requires an accessible process ◦ if disability impacts a student’s ability to clearly describe the need for accommodation, the office must consider flexibility in its processes.
Considers the entirety of a student’s history ◦ Including use of informal, undocumented, but effective accommodations.
“When considering documentation for a Learning Disability, institutional guidelines should not rely exclusively on psychometrics. Guidelines should give deference to the "clinical judgment" of the evaluator.” Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321 (2nd Cir. 1998) Mt. San Antonio College, OCR Docket Number 09-96-2151
“Any person that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary
or post-secondary education,
professional, or trade purposes shall offer such examinations or courses in a place and
manner
accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.”
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36.309(b)(1)(v)
When considering requests for modifications, accommodations, or auxiliary aids or services, the entity gives considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received in similar testing situations, as well as such modifications, accommodations, or related aids and services provided in response to an Individualized Education Program (IEP) provided under IDEA or a plan describing services provided pursuant to section 504 of the Rehabilitation Act of 1973… 31
Substantial ◦ Reasonable mind might accept as adequate to support a conclusion; not the result speculation or conjecture
Preponderance
◦
Must be persuaded that the facts more probably support the position asserted
Clear and Convincing ◦ Must be persuaded by the evidence that it is highly probable that facts support the position asserted Beyond a Reasonable Doubt ◦ Must be all but certain of the position asserted
EEOC’S Final Regulations Implementing Title I of the ADA as Amended
Section 1630.2(j)(1)(v) states: ‘‘The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. Nothing in this paragraph is intended, however, to prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.’’ 34
Establishing right to accommodation Implementing accommodations
"A university is prevented from employing unnecessarily
Burdensome proof-of-disability criteria that preclude or unnecessarily discourage individuals with disabilities from establishing that they are entitled to reasonable accommodation.”
Guckenberger v. Boston University, 974 F.Supp. 106, 135-136 (D. Mass. 1997).
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“A university is prevented from employing unnecessarily burdensome proof-of-disability criteria that preclude or unnecessarily discourage individuals with disabilities from establishing that they are entitled to reasonable accommodation.”
Guckenberger v. Boston University, 974 F.Supp. 106, 135-136 (D. Mass. 1997).
Establishing eligibility for accommodations Setting up individual accommodations ◦ Student identification process ◦ Requests for accommodations, including testing, note taking, interpreting Consider the disabled student’s experience as compared with the non-disabled student’s experience
Medical, sensory, cognitive and other types of disabilities are generally persistent Students with episodic conditions or disabilities that are in remission and those who have developed compensatory skills are protected by the ADA as amended Compensatory strategies may reduce a student’s use of accommodation naturally, but the underlying impairment is still present and may warrant accommodation, particularly in new or atypical contexts.
Frequent recertification is a special education concept based on allocating services & funding -not disability Special Education eligibility is narrowly defined while Congress made the civil rights protections of the ADA and Section 504 intentionally broad Initial or continuing eligibility for special education does not mean the child no longer has a disability Recent guidance from the DOE indicates that children with disabilities who may not need special education are still protected against discrimination by the ADA This letter may be found at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201109.html
The accompanying Questions and Answers may be found at http://www2.ed.gov/about/offices/list/ocr/docs/dcl-504faq-201109.html
Request for documentation should be narrowly tailored to ascertain the individual's need for the requested modification or auxiliary aid.
Generally, a testing entity should accept without further inquiry documentation provided by a qualified professional who has made an individualized assessment of the applicant. Appropriate documentation may include a letter from a qualified professional or evidence of a prior diagnosis, accommodation, or classification, such as eligibility for a special education program. Appendix A, 28 C.F.R. Part 306
1.
Is ‘X’ a disability?... What’s a disability?
2.
If we relax our documentation standards, every student will be qualified.
3.
How can we ensure that our process is fair and consistent if we’re not requiring consistent documentation from all students?
6.
A student requests accommodations but only submits a 504 plan, Individual Educational Plan (IEP), history of Response to Intervention (RtI) or Summary of Performance (SOP). 7.
What if I can’t find a connection between the condition and the accommodation based on the documentation the student submitted?
4.
What if the student is not available at the time of the request?
5.
If I accept less documentation, the student won’t have necessary paperwork to get accommodations at other schools or on standardized tests.
Examinations and Courses
The requirements contained in title II (including the general prohibitions against discrimination, the program access requirements, the reasonable modifications requirements, and the communications requirements) apply to courses and examinations administered by public entities that meet the requirements of section 309. While the Department considers these requirements to be sufficient to ensure that examinations and courses administered by public entities meet the section 309 requirements, the Department acknowledges that the title III regulation, because it addresses examinations in some detail, is useful as a guide for determining what constitutes discriminatory conduct by a public entity in testing situations. See 28 CFR 36.309.
It remains the Department’s view that, when testing entities receive documentation provided by a qualified professional who has made an individualized assessment of an applicant that supports the need for the modification, accommodation, or aid requested, they shall generally accept such documentation and provide the accommodation... 47
Sources
Supporting Accommodation Requests: Guidance on Documentation Practices (http://www.ahead.org/resources/documentation_guidance (Published by AHEAD, 4/14/2012) Department of Justice: Guidance and Revised ADA Regulations Implementing Titles II & III ( http://www.ada.gov/regs2010/ADAregs2010.htm
) (Published in the Federal Register, 3/15/2011) Equal Employment Opportunity Commission Guidance and Revised ADA Regulations for Title I Implementing the ADAAA ( http://www.eeoc.gov/laws/statutes/adaaa_info.cfm
) (Published in the Federal Register on 3/25/2011) 48
Tabula Rasa University – Disability Resource Center Disability Documentation We will consider any information (including but not limited to your description of your needs; records of past accommodations and services from high school, another college state or high stakes testing; formal psychological or medical evaluations, letters from past health, education or service providers) when evaluating requests for accommodation. We need information on how your conditions are likely to impact you here at Tabula Rasa University.
Consider how your disability interacts with communication, classroom and laboratory and online learning, reading and writing, housing, technology, dining, the physical environment, etc. What tools or strategies facilitate your access? What barriers can you anticipate? Use your answers to these questions to identify potential accommodations and services (such as extended time on tests, books in a digital format, interpreters) and the documentation that supports them.
Tabula Rasa University (cont.) In addition to your description, information from schools and previous service providers can be used to clarify how your disability interacts with learning and living on campus. School systems, doctors, and other professionals you have worked with may frame this information in terms of impacts on physical (mobility, dexterity, endurance, etc.), perceptual, cognitive (attention, distractibility, communication, etc.), and behavioral activities in letters (clinical narrative), through the provision of specific results from the diagnostic procedures/assessment or in records of past accommodations and services.
Consider any accommodations, auxiliary aids, assistive technology, services, medications that currently in use and their general effectiveness as tools for access. Descriptions of these, along with any additional accommodations or tools that you can identify (with a description of how you feel they will be helpful) can identify accommodations you will need at Tabula Rasa.
Consider expected changes in the impact of the condition(s) over time. If the condition is variable or has known triggers, do these suggest accommodations?
These general guidelines were developed to assist you and the professionals in your support network to prepare the information so we can evaluate your request and make recommendations. If you have questions, please call XXX XXX XXXX V. XXX XXX XXXX TTY. XXXXX.edu
New Ways College – Disability Documentation Disability Resources (DR) asks students who request disability accommodations to describe their disability, their past use of accommodations or the disability's likely impact on their educational experiences. Types of helpful documentation supportive of such requests include medical records, psycho-educational testing, and school records. If you don't have copies of this type of information, you are welcome to meet with an Access Consultant to discuss other ways to demonstrate a connection between your condition and any academic barriers you anticipate or are facing.
Documentation can provide a valuable tool for helping New Ways College understand how courses, systems and facilities may present barriers, and for planning strategies, including reasonable accommodations, which facilitate access. DR often uses external documentation to augment conversations with students and to support requests for accommodations.
No. The law does not require any particular documentation but supports a minimalist approach. Given a particular accommodation request and the context what information is sufficient to support the request.
Use institutional retention records policies for your files
Offer or provide a summary of accommodations provided to students as they exit the program.