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

1. ADA/Section 504 Basics:Everything You Need to Know – to Begin Jeanne M. Kincaid Drummond Woodsum 100 International Drive, Suite 340 Portsmouth, NH 03801 603/433-3317 jkincaid@dwmlaw.com

2. Caveat • The content contained in these slides and shared during the seminar is intended for informational purposes only and is based upon federal law. • The participant is cautioned that state laws may afford individuals with disabilities greater protections. • The participant is cautioned that none of this information should be treated as legal advice. Drummond Woodsum PTI: 2014

3. ADA/Section 504 Obligations • Not to unlawfully discriminate on the basis of disability • Provide reasonable accommodations to enable equal opportunity that is meaningful • All campus programs, activities and services Drummond Woodsum PTI: 2014

4. Reach of the Laws • Think broadly • General principle: if the campus offers it, it must be accessible • Example: no duty to provide transportation Drummond Woodsum PTI: 2014

5. Where Does Your Campus Fall? • All recipients of federal financial assistance: Section 504 of the Rehabilitation Act • But very different than K-12 • Private colleges/universities: Title III: 28 C.F.R. Part 35 • Colleges/universities operated by state or local governments: Title II: 28 C.F.R. Part 36 Drummond Woodsum PTI: 2014

6. A Legal Framework • How to analyze accommodation requests Drummond Woodsum PTI: 2014

7. Steps to the Framework • Is the student disabled? • Does the student’s documentation meet your guidelines? • Is the request directly linked to the underlying disability? • Does the documentation support the requested accommodation in the student’s mitigated state? Drummond Woodsum PTI: 2014

8. Steps to the Framework • Was the request made and timely • Is the request necessary to enable the student to access the campus’ programs, activities and services? • Is the request appropriate? • Is the student otherwise qualified • Does the student pose a direct threat • Does the request impose an undue burden (financially and administratively) Drummond Woodsum PTI: 2014

9. Framework Principles • Institution generally acknowledges the diagnosis if it meets documentation criteria • Unless it is in a position to challenge it with its own expertise • Disability services office generally decides is the student disabled • Strictly an institutional question as to how to staff this issue • Third party evaluators make accommodation recommendations Drummond Woodsum PTI: 2014

10. Framework Principles • Institution decides upon reasonableness of requests • Caveat: going it alone as a disability services office is rife with problems • Institution decides upon essential programmatic criteria Drummond Woodsum PTI: 2014

11. Step One – Disability Status • Is the student disabled? • Americans with Disabilities Act (ADA) • Rehabilitation Act (504) • Impact of proposed ADAAA Title II and Title III rules • State and local laws Drummond Woodsum PTI: 2014

12. Who Is Eligible? • Students who have: • A physical or mental impairment (including health impairment) • Which substantially limits • One or more major life activities Drummond Woodsum PTI: 2014

13. The ADAAA in a Nutshell • Focus on the disability definition • Significantly expands who may qualify as disabled • Under both the ADA and 504 • Does not alter the physical/mental impairment element • Significantly expands the list of major life activities • Significantly weakens the definition of “substantially limits” Drummond Woodsum PTI: 2014

14. Presumptive Disabilities • Proposed ADAAA rules: • Although there are no per se disabilities, this list is subject to a rebuttable presumption of disability status • Rules do not bar a college from requiring documentation • 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 proof • 28 C.F.R. §§ 35.108(d)(2); 36.105(d)(2) Drummond Woodsum PTI: 2014

15. Presumptive Disabilities • Deafness • Blindness • Intellectual disability • Partially or completely missing limbs or impairments requiring wheelchair • Autism • Cancer • Cerebral Palsy • Diabetes Drummond Woodsum PTI: 2014 • Epilepsy • Muscular dystrophy • Multiple sclerosis • HIV • Major depressive disorder • Bipolar disorder • Post-traumatic stress disorder • Traumatic brain injury • Obsessive compulsive disorder • Schizophrenia

16. Original Major Life Activities • Caring for oneself • Performing manual tasks • Seeing • Hearing • Walking • Speaking • Breathing • Learning • Working Drummond Woodsum PTI: 2014

17. Additional Major Life Activities • Eating • Sleeping • Standing • Lifting • Bending • Reading • Concentrating • Thinking • Communicating • Operation of a major bodily function Drummond Woodsum PTI: 2014

18. Proposed ADAAA rules • Will add: • Sitting • Reaching • Interacting with others • 28 C.F.R. §§ 35.108(c); 36.105(c) Drummond Woodsum PTI: 2014

19. How the MLA is Performed • The proposed rules allow consideration of: • Condition; • Manner; and • Duration • 28 C.F.R. §§ 35.108(d)(3); 36.105(d)(3) • Example used by the DOJ: • How long an individual with a learning disability may take to read, write, speak or learn – in comparison with most people Drummond Woodsum PTI: 2014

20. Intermittent or Remission • Intermittent conditions and conditions in remission qualify as disabling if substantially limiting when active Drummond Woodsum PTI: 2014

21. Temporary Impairments • Are now murky • Under prior law, courts often used a six month rule • OCR followed suit • Is the condition minor and transitory? Drummond Woodsum PTI: 2014

22. Substantially Limits • Still not defined • But what it is not: • Severely restricts is too strong • Significantly restricts is too strong Drummond Woodsum PTI: 2014

23. Comparison Group • Most people in the general population • Proposed rules Drummond Woodsum PTI: 2014

24. Mitigating Measures • The ameliorative effects of mitigating measures may not be considered when determining whether individual has a disability • But may be considered in determining what if any accommodations may be necessary and appropriate Drummond Woodsum PTI: 2014

25. Mitigating Measures Defined • Broadly defined to include measures such as: • Reasonable accommodations • Implanted devices and medical equipment • Hearing aids • Assistive technology • Learned behavioral or adaptive neurological modifications (not defined) • Exception • Ordinary eyeglasses and contact lenses Drummond Woodsum PTI: 2014

26. Record of Disability • The proposed rules emphasize that such individuals *might* qualify for accommodation • 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 appointments • 28 C.F.R. §§ 35.108(e)(3); 36.105(e)(3) Drummond Woodsum PTI: 2014

27. Record of Disability • Kincaid’s thinking: I can’t think of any examples – • Ask yourself – what is the campus accommodating if the student does not have a current disability? • 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 Drummond Woodsum PTI: 2014

28. Regarded as Disabled • Is much easier to establish for discrimination purposes • 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) • Such a person does not qualify for accommodations • Watch out for hostile environment claims Drummond Woodsum PTI: 2014

29. Tip • Check your brochures, websites, handout materials • Update them in a manner that does not conflict with the ADAAA Drummond Woodsum PTI: 2014

30. Template Ideas • Disabled • Not disabled • Including temporary conditions/injuries • In between • Without deciding disability status, the institution will provide the following supports Drummond Woodsum PTI: 2014

31. Step 2 - Documentation • Documentation • For determining ADA/Rehabilitation Act eligibility Drummond Woodsum PTI: 2014

32. Remember • You are analyzing the student’s condition in its unmitigated state at this step • To the extent the mitigating measures are ameliorative Drummond Woodsum PTI: 2014

33. Congressional Intent • Public and private entities should not need to spend much effort on whether or not an individual qualifies as a person with a disability • The burden of proof remains with the student Drummond Woodsum PTI: 2014

34. How Much Documentation? • Two purposes: • Is this person an individual with a disability? • In a higher education setting, documentation to support the need for and type of accommodation Drummond Woodsum PTI: 2014

35. Step 3 - Linkage • Examine how the documentation links the recommended accommodation to the underlying disability Drummond Woodsum PTI: 2014

36. General Principle • If the request is not directly supported by the documentation, the institution is not obligated to honor it • But of course, draw upon your own professional experience Drummond Woodsum PTI: 2014

37. Step 4 – Mitigating Measures • Now is the time to factor in mitigating measures • Does the documentation address the student’s past and current use of mitigating measures? • Is the documentation clear that the accommodation request is necessary and appropriate in light of the student’s use of mitigating measures? Drummond Woodsum PTI: 2014

38. Step 5 - Notice • Did the student request the accommodation and in a timely manner? • It is not the institution's obligation to determine on its own the appropriate accommodation • Do you (or should you adopt) timeliness criteria? • Did the student follow the proper steps? Drummond Woodsum PTI: 2014

39. Step 6 - Necessity • Is the requested accommodation necessary to enable the student to access the institution’s programs, activities and services? • Query: would the student be denied access unless the institution implements the request? • Examine the request as well as alternative solutions Drummond Woodsum PTI: 2014

40. The Most Sought After • Testing accommodations • Especially more time Drummond Woodsum PTI: 2014

41. Not an Accommodation • Services of a personal nature do not qualify as accommodations Drummond Woodsum PTI: 2014

42. Step 7- Appropriateness • Is the requested accommodation “appropriate”? • Would it fundamentally alter the program, activity, service? Ask if the accommodation would: • Have the effect of lowering expected outcomes or standards? • Render the student not otherwise qualified? • Give the student an unfair advantage over his/her peers • Impose an undue burden? • Does the student present a direct threat despite the provision of reasonable accommodation? Drummond Woodsum PTI: 2014

43. Academic Decision-Making • Courts grant deference to academic decision-making in the absence of evidence of disability-based bias Drummond Woodsum PTI: 2014

44. General Practice Tips • If the institution endorses the accommodation, it effectively owns it • Is the institution promising more than it can deliver? • Is the institution exceeding its legal obligations? • If you promise it, then you are expected to deliver • Nothing is free! • Review your accommodation forms • Consider language that affords wiggle room to the faculty Drummond Woodsum PTI: 2014

45. General Practice Tips • The accommodation “memo” may be one of the most important forms in your file drawer Drummond Woodsum PTI: 2014

46. Analyze the Memo • Is it clear what the faculty is expected to do? • Is your office usurping faculty academic decision-making? • Are the accommodations recommended or demanded? • 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

47. Analyze the Memo • Can it be misconstrued? • Does extra time for tests mean a student receives more time on performance based exams, labs and in clinical settings? • The interactive process may involve the faculty • It is not improper for accommodations to be refined based upon the course Drummond Woodsum PTI: 2014

48. Hot Issues in ADA Land • Students at risk • Access to information • Web access • Instructional access • Online instruction • Absenteeism • Extended time on assignments • Service and assistance animals • Food allergies • Housing accommodations Drummond Woodsum PTI: 2014

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