Documenting Accommodation Requests

1. Documenting Accommodation Requests Presented by L. Scott Lissner

2. "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.” Guckenbergerv. Boston University, 974F.Supp. 106, 135-136 (D. Mass. 1997). Policy & Practice

3. Title III Section 36.309 (b)(1) Documentation for Examinations and Courses

4. LISTEN TO THE EEOC Congruent with DOJ rulemaking An individual’s ability to perform a major life activity in a similar manner under comparable conditions as “most people in the general population” Should not require extensive analysis Typically using a common-sense analysis without scientific or medical evidence

5. Abdo v. University of Vermont “It would be inconsistent with the broad remedial goals of the ADA to find Abdo's doctors' letters insufficient simply for failure to recite a precise medical diagnosis where they adequately set forth the effect of Abdo's disability on several of her major life activities.” 263 F.Supp.2d 772, 14 A.D. (2003)

6. WHAT DOES JUSTICE SAY ABOUT DOCUMENTATION? • Based on DOJ’s enforcement experience, research, comments • Addresses concerns about sometimes inappropriate and burdensome requests for documentation about existence of disability and need for accommodations • Note: title III preamble says same principles apply to title II entities

7. Documentation that should generally be accepted • Recommendations of qualified professionals familiar with the individual • Results of professional evaluation • History of diagnosis • Observations by educators • Past use of accommodations. • Supports the need for the modification

8. BASIC PROVISIONS REMAIN • Exams or courses must be given in a place and manner accessible to persons with disabilities, or alternative accessible arrangements provided. • Purpose: to prevent exclusion from educational, professional, or trade opportunities because of inaccessible exams or courses. • Specific ADA provision applies to private entities that offer exams or courses related to applications, licensing, certification, or credentialing.

9. ICD-9 569.42 Give considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received in similar testing situations including those provided in response to an Individualized Education Program or Section 504 Plan.

10. Narrowly Tailored 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.

11. Same standard for Title II The Department 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 ‘‘[a]ny 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.

12. Indeed, 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.

13. General Principles No specific language is required to determine disability Interview/self-report is a central part of documentation Information is evaluated on a case-by-case basis in context Information is evaluated for relevancy, reliability and congruence with modifications requested Information on the individual’s disability is only one component of providing access Determination of modifications is an interactive process

14. AHEAD’s Documentation History • Documentation to establish disability and entitlement to accommodations • 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 • Shift in focus for third/current guidance • Documentation to establish nexus with requested accommodations http://www.ahead.org/resources/documentation_guidance

15. Why? • Changes in understandings of disability • 2008 Amendments to the ADA • Updated EEOC and DOJ regulations and accompanying guidance

16. What? • NOT a list of characteristics of documentation • A comprehensive approach to using a variety of types of information to support decision-making about accommodation requests • Reflective of legal and judicial thinking • Responsive to disability studies scholarship • REPLACEMENT of AHEAD’s previous guidance

17. Background • ADAAA • Rejected heightened standard for demonstrating disability • Primary purpose: “to make it easier for people with disabilities to obtain protection..” • Law never required documentation • Law allows PSE to request documentation that is reasonable and related to the accommodation(s) requested

18. Sources & Forms • Primary Documentation • Student Self-Report • Secondary Documentation • Observations by disability professional • Interaction with disability professional • Tertiary Documentation; Third-Party Documentation; External Documentation • What we traditionally think of as “documentation”

19. Primary Documentation Student Self-Report It is only through understanding an individual's experience in context that we can translate external information into useable information on the barriers and facilitators to access and full participation

20. Past History From Self-Report • Barriers & Problem situations • Facilitators & Accommodations • Tools & Adaptive Devices • Social Networks & Assistive Services • Skills & Compensatory Strategies • Resources & Collateral Support Services

21. Secondary Documentation • Observations by disability professional • Interaction with disability professional • Professional conclusions fromall information The weight given to the individual’s description will be influenced by its clarity, internal consistency, its congruence with tertiary information and the professional’s observations of the student

22. Tertiary, Third-Party or External Documentation • Educational records • Medical records • Reports and assessments • psychoeducational evaluations • IEPs • SOP • Teacher observations • Information on previous use of accommodations

23. Professional Filter The weight given to external documentation will be influenced by its clarity, internal consistency, and congruence with student self-report and disability professional’s observations. External documentation will vary in its relevance and value depending on the original context, credentials of the evaluator, relevant detail provided and the comprehensiveness of the narrative.

24. Purposes of ALL forms of documentation • Support disability professional in • Understanding the student’s disability experience • understanding how disability may impact the student in the academic setting • making informed decisions about accommodations • NOT to meet a static protocol for information that needs to be “on file”

25. Process • Deliberate, collaborative process with student to explore: • Previous educational experiences • Past use of accommodations & their effectiveness • Current or anticipated barriers • Professional judgment to assess • Clarity and consistency of student’s report • Congruency with observations • Congruency with external information

26. Process • Determine appropriateness of accommodations • Is the barrier disability related? • Is there a connection between request and barrier? • Would the accommodation provide access? • Is the accommodation reasonable? IF THERE IS NOT ENOUGH INFORMATION TO MAKE THESE DETERMINATIONS, REQUEST INFORMATION SPECIFICALLY TARGETED TO PROVIDING THE MISSING INFORMATION

27. Highlighted Concepts • Individual Review • Commonsense Standard • Reviewing requests for accommodation is different than providing “treatment” • Non-burdensome Process • In initially requesting accommodations • In implementing accommodations • Relevant Information • Current not necessarily “recent”

28. DECISION INPUTS

29. The Value of Self Report 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.

30. 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. Self-Report Filtered by Professional Judgment

31. “ 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 Judgment

32. Both Successful and Unsuccessful Experiences Past History From Self-Report Barriers & Problem situations Facilitators & Accommodations Tools & Adaptive Devices Social Networks & Assistive Services Skills & Compensatory Strategies Resources & Collateral Support Services

33. Identifies Condition Formal Taxonomy Descriptive Narrative Exemplars Cyclical or episodic nature of impacts Known/suspected environmental triggers Date of last Evaluation Date of Original Diagnosis Describes the Condition

34. Class Schedules Manipulating Objects Getting Around Transportation Diet Sleep Interacting With Others How does the environment present barriers in: • 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

35. Model Notice • “Disability Resources invites students who request reasonable accommodations to meet with an Access Consultant to discuss their past use of accommodations and disability-related barriers they anticipate or are experiencing at the University. While no external paperwork may be necessary to establish accommodations, medical records, psychoeducational testing and school records (such as an IEP or 504 Program) may help guide our conversation and provide information about specific requests. If this type of information is available, please submit it or bring it to your first meeting with an Access Consultant. Please don't delay meeting with DRC out of concern for not having appropriate paperwork.”

36. What Level Of Evidence? A Reasonable Person • Substantial …could 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

37. Summary • Focus on need for modifications • Give weight to history of past modifications & auxiliary aids • Give deference to treating professionals • Give deference to professional narrative say Yes when you can and no when you have to. rather than No when you can and yes when you have to.