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UTAH AHEAD: DISIBALITY LAW: THE YEAR IN REVIEW May 2010

UTAH AHEAD: DISIBALITY LAW: THE YEAR IN REVIEW May 2010. Melissa L. Frost, J.D. Loss Control Specialist State of Utah, Division of Risk Management. CAVEAT.

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UTAH AHEAD: DISIBALITY LAW: THE YEAR IN REVIEW May 2010

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  1. UTAH AHEAD: DISIBALITY LAW: THE YEAR IN REVIEW May 2010 Melissa L. Frost, J.D. Loss Control Specialist State of Utah, Division of Risk Management

  2. CAVEAT This presentation is provided for informational purposes only and may not be construed as legal advice. Consult your designated legal counsel to address any pertinent issues that may affect you.

  3. HIGHER EDUCATION OPPORTUNITY ACT (HEOA 2008) • SEC. 112. TEXTBOOK INFORMATION. (Creates a new section #133, in the HEA) • ''(a) PURPOSE AND INTENT.- The purpose of this section is to ensure that students have access to affordable course materials by decreasing costs to students and enhancing transparency and disclosure with respect to the selection, purchase, sale, and use of course materials. It is the intent of this section to encourage all of the involved parties, including faculty, students, administrators, institutions of higher education, bookstores, distributors, and publishers, to work together to identify ways to decrease the cost of college textbooks and supplemental materials for students while supporting the academic freedom of faculty members to select high quality course materials for students. • http://ed.gov/policy/highered/leg/hea08/index.html

  4. HEOA 2008 Cont. • Publisher Requirements • Course Schedule Requirements • Information for College Bookstore Requirements • Additional Information * Accessibility • GAO Report • Rule of Construction • No Regulatory Authority • EFFECTIVE 7-1-10 • http://www.bookstore.csupomona.edu/content/d/faculty/HEOA.mht

  5. ADDITIONAL INFORMATIONAn institution disclosing the information required by subsection (d) (1) is encouraged to disseminate to students information regarding - If a college has these programs they are encouraged to publicize information about them. Available programs for renting textbooks or for purchasing used textbooks; Available guaranteed textbook buy-back programs; Any available institutional alternative content delivery programs; or Other available cost-saving strategies. HEOA 2008 Cont.

  6. NOTICE OF PROPOSED RULE MAKING (NPRM) • The comparison of an individual’s limitation is to the ability of “most people” in the general population. • Sitting, Reaching, and Interacting with Others are MLA’s. • “An impairment substantially limits the major life activity of working if it substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue.” http://edocket.access.gpo.gov/2009/pdf/E9-22840.pdf

  7. Harrison v. Benchmark Electronics Huntsville, Inc., 2010 U.S. Appl LEXIS 632 (11th Cir. January 11, 2010) • H: “We now explicitly recognize that a plaintiff has a private right of action… irrespective of his disability status.” • Non-Disabled Applicants Can Sue under ADA in 11th Cir • Unlawful to use qualification standards, employment tests or other selection criteria that tend to screen out individuals with disabilities, on the basis of disability, unless the standard, test, or other selection criteria is job-related for the subject position and consistent with business necessity.

  8. EXAMPLES OF IMPAIRMENTS CONSISTENTLY MEETING THE DEFINITION OF DISABILTY • Deafness • Blindness • Intellectual disability • Partially/completely missing limbs • Mobility impairments requiring wheelchair use • Autism • Cancer

  9. EXAMPLES OF IMPAIRMENTS CONSISTENTLY MEETING THE DEFINITION OF DISABILTY Cont. • Cerebral Palsy • Diabetes • Epilepsy • HIV or AIDS • Multiple Sclerosis • Major Depression, Bipolar Disorder, PTSD, OCD, or Schizophrenia

  10. EXAMPLES OF IMPAIRMENTS THAT DISABLE SOME AND NOT OTHERS Depends on the degree to which they affect the individual’s major life activities. • Asthma • High Blood Pressure • Hyperthyroidism • Carpal Tunnel syndrome. • Learning Disabilities • Psychiatric Impairments • panic disorder, anxiety disorder, some forms of depression other than major depression

  11. EXAMPLES OF EPISODIC IMPAIRMENTS • “An impairment that is episodic or in remissionis a disability if it would substantially limit an MLA when active.” • Epilepsy • Multiple Sclerosis • Cancer • Mental Illness • Hypertension • Asthma, • Psychiatric disabilities such as depression, bipolar disorder, and post-traumatic stress disorder.

  12. PRE AMENDMENTS ACT CASES SUBSTANTIALLY LIMITED IN LEARNING • Singh v. George Washington Univ., 508 F.3d 1097 (D.C. Cir. 2007), vacating and remanding 439 F. Supp.2d 8 (D.D.C. 2006), on remand, Singh v. George Washington Univ., 597 F. Supp. 2d 89 (D.D.C. 2009) (learning; time-limited test taking) • Wong v. Regents of the University of California, 379 F.3d 1097 (9th Cir. 2004), as amended, 410 F.3d 1052 (9th Cir. 2005) (substantially limited in learning)

  13. Singh v. George Washington University, 597 F. Supp. 2d 89 (D.D.C. 2009) • H: Dcrt did not apply ADA-AA retroactively. • 1. Compare her to average person in general population. • 2. Performing on tests is not major life activity but GW should have looked at LD overall. • 3. GW said too late- already dismissed. Singh won on only this issue because once GW learned she had a disability- the accommodation was not to undo what happened but to determine if she was qualified going forward.

  14. PRE AMENDMENTS ACT CASES SUBSTANTIALLY LIMITED IN LEARNING • Herzog v. Loyola College in Maryland, Inc., No. RDB-07-02416, 2009 U.S. Dist. LEXIS 94454 (D. Md. Oct. 9, 2009) (learning) • Love v. Law School Admission Council, 513 F. Supp.2d 206 (E.D.Pa. 2007) (substantially limited in learning, reading and processing information)

  15. POST AMENDMENTS ACT CASES • Jenkins v. National Board of Medical Examiners, 2009 U.S. App. LEXIS 2660 (6th Cir. Feb. 11, 2009) • Brodsky v. New England School of Law, 617 F. Supp 2d 7 (D.Mass. 2009)

  16. OTHER SUBSTANTIALLY LIMITED CASES • Millington v. Temple University School of Dentistry, 261 Fed. Appx. 363,2008 U.S. App. LEXIS 1291 (3d Cir. Jan. 23, 2008), affirming 2006 U.S. Dist. LEXIS 74926 (E.D. Pa. Oct. 13, 2006) (substantially limited generally), cert. denied, 129 S. Ct. 419 (2008) • Hogan v. Ogden, et aI., 2008 U.S. Dist. LEXIS 58359 (E.D. Wash. July 20,2008) (walking, due to complications of pregnancy)

  17. REGARDED AS • Burns v. Slippery Rock University of Pennsylvania, 2007 US. Dist. LEXIS 57716 (W.D. Pa. Aug. 8, 2007), reconsideration granted and ruling overt' d in part by Burns v. Slippery Rock Univ. of Pa., 2007 U.S. Dist. LEXIS 63406 (W.D. Pa. Aug. 28,2007) • Costello v. University of North Carolina at Greensboro, 2006 U.S. Dist. LEXIS 90519 (M.D.N.C. Dec. 14,2006)

  18. CONSTRUCTIVE NOTICE • Concepcion v. Commonwealth of Puerto Rico, No. 08-2378,2010 US. Dist. LEXIS 4243 (D.P.R. Jan. 20, 2010)

  19. APPLICATION OF NON-DISCRIMINATORY STANDARDS • Millington v. Temple University School of Dentistry, 261 Fed. Appx. 363,2008 U.S. App. LEXIS 1291 (3d Cir. Jan. 23, 2008), affirming 2006 US. Dist. LEXIS 74926 (E.D. Pa. Oct. 13, 2006) (substantially limited generally), cert. denied, 129 S. Ct. 419 (2008) • Buhendwa v. University of Colorado at Boulder, 214 Fed. Appx. 823, 2007 US. App. LEXIS 2207 (lOth Cir. Jan. 30, 2007) (unpublished)

  20. APPLICATION OF NON-DISCRIMINATORY STANDARDS Cont. • Betts v. Rector and Visitors of the University of Virginia, 145 Fed. Appx. 7,2005 U.S. App. LEXIS 16456 (4th Cir. Aug. 5,2005) (unpublished) • Herzog v. Loyola College in Maryland, Inc., No. RDB-07-02416, 2009 U.S. Dist. LEXIS 94454 (D. Md. Oct. 9, 2009)

  21. APPLICATION OF NON-DISCRIMINATORY STANDARDS Cont. • Di Lella v. Univ. of the Dist. of Columbia David A. Clarke School of Law, et aI., 570 F. Supp. 2d 1 CD.D.C. 2008). • Hogan v. Ogden, et aI., 2008 U.S. Dist. LEXIS 58359 (E.D. Wash. July 20,2008).

  22. APPLICATION OF NON-DISCRIMINATORY STANDARDS Cont. • Shamonsky v. Saint Luke's School of Nursing, et aI., 2008 U.S. Dist. LEXIS 20426 (E.D. Pa. Mar. 17, 2008) • Chen v. Univ. of Wash., 2008 U.S. Dist. LEXIS 16902 (W.D. Wash. Mar. 5,2008).

  23. CONDUCT • Institutions may prohibit: • Violence or threats of violence • Stealing • Destruction of property • Insubordination • Showing disrespect to clients, customers, or public • Inappropriate behavior • Alcohol or illegal drug use

  24. CONDUCT: PRACTICAL GUIDANCE • Accommodation requests areprospective: Generally, need notrescind discipline or grades. • An institution may have to provide a reasonable accommodation to a student with a disability when discussing performance or discipline to enable meaningful discussion and understanding of the nature of the performance or conduct problem. (interpreters etc)

  25. BLANKET POLICY APPLICATION • EEOC v. Sears6.2Million Dollar Settlement (Largest Ever)EEOC v. UPS • Second Class Action this year is Pending

  26. ACADEMIC ADJUSMENTS AND AUXILIARY AIDS • Button v. Board of Regents of Univ. and Comm. College Sys. of Nev., et al.,2008 U.S. App. LEXIS 26992 (9th Cir. Aug. 14, 2008) • Di LelIa v. Univ. of the Dist. of Columbia David A. Clarke School of Law, et aI., 570 F. Supp. 2d 1 (D.D.C. 2008)

  27. ACADEMIC ADJUSMENTS AND AUXILIARY AIDS Cont. • Simonelli v. Univ. of Cal.- Berkeley, et aI., 2008 U.S. Dist. LEXIS 44589 (N.D. CaI. Feb. 14, 2008), aff'd, 338 Fed. Appx. 673,2009 U.S. App. LEXIS 16048 (9th Cir. July 21, 2009),petition for cert.filed, Dec. 9,2009 (No. 09-1016) • Hayden v. Redwoods Community College District, 2007 U.S. Dist. LEXIS 835 (N.D. CaI. Jan. 8, 2007) • Melendez v. Monroe College, 2006 U.S. Dist. LEXIS 73040 (E.D.N. Y. Oct. 6, 2006)

  28. MODIFICATIONS OF ACAEMIC AND TECHNICAL STANDARDS • Millington v. Temple University School of Dentistry, 261 Fed. Appx. 363,2008 U.S. App. LEXIS 1291 (3d Cir. Jan. 23, 2008), affirming 2006 US. Dist. LEXIS 74926 (E.D. Pa. Oct. 13, 2006) (substantially limited generally), cert. denied, 129 S. Ct. 419 (2008) • Mershon v. St. Louis University, 442 F. 3d 1069 (8th Cir. 2006) • Hartnett v. Fielding Graduate Institute, 198 Fed. Appx. 89,2006 U.S. App. LEXIS 24128 (2d Cir. Sept. 21, 2006) (unpublished)

  29. MODIFICATIONS OF ACAEMIC AND TECHNICAL STANDARDS Cont. • Betts v. Rector and Visitors of the University of Virginia, 145 Fed. Appx. 7, 2005 U.S. App. LEXIS 16456 (4th Cir. 2005) (unpublished) • Falcone v. University of Minnesota, 388 F.3d 656 (8th Cir. 2004) • McInerney v. Rensselaer Polytechnic Institute, No: 1 :05 CV-1267, 2010 U.S. Dist. Lexis 16950 (N.D.N.Y. Feb. 25, 2010)

  30. MODIFICATIONS OF ACAEMIC AND TECHNICAL STANDARDS Cont. • Oser v. Capital University Law School, No. 2:09-cv-709, 2009 US. Dist. LEXIS 86425 (E.D.Oh. Sept. 8,2009) • Strahl v. Trustees of Purdue University, No: 4:07-cv-61-AS, 2009 US. Dist. LEXIS 34231(N.D. In. Apr. 22, 2009)

  31. MODIFICATIONS OF ACAEMIC AND TECHNICAL STANDARDS Cont. • Yount v. Regents University. Inc., No. CV-08-8011-PCT-DGC, 2009 US. Dist. LEXIS 32846 (D. Ariz. Apr. 14,2009). • Hogan v. Ogden. et aI., 2008 US. Dist. LEXIS 58359 (E.D. Wash. July 20, 2008) • Chen v. Univ. of Wash., 2008 US. Dist. LEXIS 16902 (W.D. Wash. Mar. 5, 2008).

  32. MODIFICATIONS OF ACAEMIC AND TECHNICAL STANDARDS Cont. • Toledo v. University of Puerto Rico, 2008 U.S. Dist. LEXIS 4248 (D.P.R. Jan. 18,2008) • Long v. Howard University, 439 F. Supp.2d 68 (D.D.C. 2006), motion for new trial denied Long v. Howard Univ., 512 F. Supp. 2d 1 (D.D.C. 2007), aff'd, 550 F.3d 21 (D.C. Cir. 2008)

  33. CORE ELEMENTS • Example: University of West Virginia University engineering student who could not work with a team was allowed to forego the team project. • When he could not maintain employment as an engineer he sued and won. • WVU is now paying his tuition for another degree. • Teamwork was a core element in the classroom and in the work world.

  34. PERFORMANCE • It is generally inappropriate to focus discussion about performance or conduct problems on the disability. • Focus should be on correcting performance problems and avoiding future misconduct. • Emphasizing the disability risks distracting from the primary focus on the problem and can result in a “regarded as” claim. • It is generally preferable for the person to raise the disability rather than the entity.

  35. LIMITS OF DEFERENCE • Yount v. Regents University. Inc., No. CV-08-8011-PCT-DGC, 2009 US. Dist. LEXIS 32846 (D. Ariz. Apr. 14, 2009) • Toledo v. University of Puerto Rico, 2008 U.S. Dist. LEXIS 4248 (D.P.R. Jan. 18,2008) • Long v. Howard University, 439 F. Supp.2d 68 (D.D.C. 2006), motion for new trial denied Long v. Howard Univ., 512 F. Supp. 2d 1 (D.D.C. 2007), aff'd, 550 F.3d 21 (D.C. Cir. 2008)

  36. DOJ and DEFERENCE • Institutions will receive much more deference if there is a well written reason for academic decision making. • Decision making committees should have a good balance of people from campus who can make objective decisions.

  37. Best Practices Adjustments • Determine with students appropriate academic accommodations and services. • Maintain records that document the student’s plan for the provision of selected accommodations. • Consider time-limited provisional accommodations pending documentation. • Student is responsible for notifying you if accommodations are not effective.

  38. TESTING • Falchenberg v. New York State Department of Education, 338 Fed. Appx. 11,2009 US. App. LEXIS 12213 (2nd Cir. June 8, 2009), cert. denied, 130 S. Ct.1059, (2010) • Enyart v. National Conference of Bar Examiners, Case No. C 09-5191 CRB (N.D. Ca. Feb. 4, 2010) • Frank v. University of Toledo, 621 F. Supp. 2d 475 (N.D. Ohio 2007)

  39. HOUSING • Fialka-Feldman v. Oakland Univ. Bd. Of Trs., Case No. 08-14922, 2009 US. Dist. LEXIS 119971 (RD. Mich. December 23,2009)

  40. INTERACTIVE PROCESS • Cutrera v. Louisiana State University, 429 F.3d 108 (5th Cir. 2005)

  41. ACCESSIBILITY • Klingler v. Director. Dept. of Revenue, 433 F.3d 1078 (8th Cir. 2006) (parking placards), supplemental opinion at 455 F.3d 888 (8th Cir. 2006) • Eames v. Southern University and Agricultural and Mechanical College, No. 09-56-JJB, 2009 LEXIS 97452 (M.D. La .. Oct. 16, 2009)

  42. ACCESSIBILITY Cont. • Huezo v. Los Angeles Community College, o. CV 04-9772 MMM (JWJx), 2008 U.S. Dist. LEXIS 81520 (C.D. Cal. Sept. 9,2008), injunction granted at 2008 US. Dist. LEXIS 81513 (C.D. Cal. Sept. 9, 2008). • Kuchmas, et al. v. Towson Univ .. et aI., 553 F. Supp. 2d 556 (D. Md. 2008)

  43. ACCESSIBILITY Cont. • Cherry v. City College of San Francisco, 2007 U.S. Dist. LEXIS 76500 (N.D. Cal. Oct. 1,2007) • Michigan Paralyzed Veterans of America v. University of Michigan/U.S. v. University of Michigan, No. 07-11702 (E.D. Mi. March 10,2008) (consent decree) • Swathmore College Consent Decree

  44. Michigan Paralyzed Veterans of America v. University of Michigan/U.S. v. University of Michigan, No. 07-11702 (E.D. Mi. March 10, 2008) (consent decree)

  45. Michigan Paralyzed Veterans of America v. University of Michigan/U.S. v. University of Michigan, Cont. • Provide training on consent decree at the start of each football season. • Market accessible information on all publications and the website. • Retain no more than 40 wheelchair and companion seats for game day change-outs only offered to persons with disabilities (specifies how many in which section). • Allow single seat sales at the same time that other seats become eligible for single seat sales.

  46. Michigan Paralyzed Veterans of America v. University of Michigan/U.S. v. University of Michigan, Cont. • Submit to MPVA and Unites States a written report through 2012 of all work, copies of marketing, photographs, and proposed changes to physical structure, policy or practice. • Submit a detailed description of the number, location and total cost of each ticket sold for accessible seating. • Mail Surveys to all individuals who purchase accessible seating through the 2012 season.

  47. SWATHMORE COLLEGE EVACUATION PLAN: CONSENT DECREE • The Roles of Department, Dep. Of Public Safety and The Borough Of Swarthmore's Police and Fire Departments • Emergency Communication And Alerting Procedures • Campus-wide plans for Emergency Evacuation • Evacuation Procedures (PEPS) • Training • Contact Information and Emergency Numbers

  48. PERSONAL EMERGENCY PLANS (PEPS) for PERSONS WITH DISABILITIES • Personal Emergency Plans (PEPs) for Persons with Disabilities • Although not required, faculty, staff, and students are encouraged to identify their concerns about evacuation in case of an emergency, and to develop a PEP that is effective for them. • http://www.swarthmore.edu/x17268.xml

  49. (PEPS) for PERSONS WITH DISABILITIES Cont. • Your schedule • The types of assistance you might need in an emergency • Emergency contact numbers • Where you keep your emergency supplies • How to operate your assistive devices, if applicable • The size and weight of your assistive devices, in addition to whether or not they are collapsible,in case they have to be transported • Location of Areas of Rescue Assistance and Safe Wait Areas

  50. (PEPS) for PERSONS WITH DISABILITIES Cont. • Identifying the safest area(s) located on each floor within the building(s) where a person with disabilities can await assistance from emergency response personnel. • Designating a means to inform emergency response personnel (e.g., police, fire) of the locations of any person(s) requiring assistance. • Identification of volunteer Rescue Assistants. • Location of back-up medical or assistive equipment and medications.

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