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From Guinea Pigs to Online Education

From Guinea Pigs to Online Education . The Evolving ADA Landscape Jeanne M. Kincaid Drummond Woodsum. Caveat. The content contained in these slides and shared during the conference is intended for informational purposes only and is based upon federal law.

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From Guinea Pigs to Online Education

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  1. From Guinea Pigs to Online Education The Evolving ADA Landscape Jeanne M. Kincaid Drummond Woodsum

  2. Caveat • The content contained in these slides and shared during the conference 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 no information, oral or written, should be treated as legal advice. Drummond Woodsum PTI 2014

  3. Proposed ADAAA Regulations Notice of Proposed Rules: http://www.gpo.gov/fdsys/pkg/FR-2014-01-30/pdf/2014-01668.pdf Drummond Woodsum PTI 2014

  4. History • The ADA Amendments Act went into effect on January 1, 2009 • The EEOC adopted amendments to Title I regulations to comport with the ADAAA effective May 24, 2011 • On January 30, 2014, the Department of Justice (DOJ) issued proposed rules amending Titles II and III of the ADA to comport with the ADAAA • Caveat: “proposed” is not final • But these rules largely mirror the EEOC regulations Drummond Woodsum PTI 2014

  5. Proposed Changes • We will review just a few of the proposed changes • Remember – by and large the ADAAA addresses who is disabled but did not amend substantive provisions • DOJ’s stated goal: To have Titles II and III mirror Title I regulations on defining disability status protections Drummond Woodsum PTI 2014

  6. Major Life Activities • Will add: • Sitting • Reaching • Interacting with others • 28 C.F.R. §§ 35.108(c); 36.105(c) Drummond Woodsum PTI 2014

  7. Substantially Limits • Nine rules of construction • 28 C.F.R. §§ 35.108(d); 36.105(d) • Most come directly from the statute • Comparison group: “most people in the general population” • Continued consequences for students diagnosed with learning disabilities Drummond Woodsum PTI 2014

  8. Presumptive Disabilities • 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

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

  10. 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) • Again the reference is to most people in the general population • 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 • Exception for “general population”: young children should likely be compared to age peers Drummond Woodsum PTI 2014

  11. MitigatingMeasuresExplained • Learned behavioral or adaptive neurological modifications include strategies developed by an individual to lessen an impairment’s impact • Reasonable modifications include informal or undocumented accommodations and modifications • Analysis of proposed rules 28 C.F.R. §§ 35.108(d)(4); 36.105(f)(v) • Import – not a problem if you have no student who lies or distorts his/her history Drummond Woodsum PTI 2014

  12. MitigatingMeasuresExplained • Self-mitigating measures or undocumented modifications or accommodations for students that affect learning, reading or concentrating may include: • Devoting far larger amount of time to studying • Teaching oneself strategies to facilitate reading connected text or mnemonics to remember facts • Extra time on tests • Modified homework • Tests in a different format • Tests in an alternate setting • Analysis of proposed rules 28 C.F.R. §§ 35.108(d)(4); 36.105(f)(v) • Import – totally immeasurable Drummond Woodsum PTI 2014

  13. More Mitigating Measures • Added to the list would be the following: • Psychotherapy • Behavioral therapy • Physical therapy • 28 C.F.R. §§ 35.108(d)(4)(v); 36.105(d)(4)(v) Drummond Woodsum PTI 2014

  14. Medical marijuana And then there is . . . Drummond Woodsum PTI 2014

  15. Substance Abuse & the ADA • Drug and alcohol addictions are treated differently • Alcohol is sometimes legal; illegal drug use is not • If student is (or was) in recovery and not using, student enjoys protection • For alcohol, even if student is not in treatment, s/he could be covered by the ADA but must abide by the campus’ rules of conduct • For drugs, student who is a current illegal drug user (including misuse of prescription drugs), may be denied ADA protections Drummond Woodsum PTI 2014

  16. And In Many States. . . • Of course, we have medical marijuana! Drummond Woodsum PTI 2014

  17. The Rub • State laws authorizing the use of medical marijuana arguably do not afford protection under federal laws which bar such legal recognition Drummond Woodsum PTI 2014

  18. Example • The Ninth Circuit Court of Appeals refused to issue an injunction under Title II of the ADA barring two cities’ closure of medical marijuana dispensing facilities as marijuana is not legal under federal law to treat disability-related pain • James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012) Drummond Woodsum PTI 2014

  19. Some Issues • May your campus recognize the use of medical marijuana but not in tobacco form? • Tip: recognize the difference between taking negative action against an individual who is a user, versus reasonably accommodating such use • Tip: don’t go overboard: even if you wish to honor responsible use of marijuana, the key is “responsible” Drummond Woodsum PTI 2014

  20. Sample Policies • University of Maine System – supports patrons who are authorized to use medical marijuana, but bars such use on campus • University is concerned about federal drug-free school and workplace laws • Potential loss of federal funds, including student aid Drummond Woodsum PTI 2014

  21. Tip • Whatever your campus decides, it may be advisable to inform your student population of the campus’ position if students could suffer adverse consequences Drummond Woodsum PTI 2014

  22. Discrimination? Removal of Students with Mental Health Issues Drummond Woodsum PTI 2014

  23. History • OCR has long interpreted the Rehabilitation Act as authorizing involuntary removal of students who present a direct threat to themselves • Even though the regulations do not expressly state as such Drummond Woodsum PTI 2014

  24. What Happened? • The DOJ amended ADA regulations effective in 2011 and it created some confusion • Unlike Title I, Titles II and III address the concept of “direct threat” in terms of harm to others Drummond Woodsum PTI 2014

  25. Ideas • Assume the ADA/Rehabilitation Act applies even if student has not registered as a student with a disability • “Regarded as” prong is likely at play • It may be wise to continue with two models • Conduct code for certain violations • Another process for self-harm Drummond Woodsum PTI 2014

  26. Elements • Individualized decision-making • Campuses are wise to involve mental health expertise in making decisions • Direct threat is still an option • But focus on “safety” and “disruption” as essential eligibility criteria that are legitimate and defensible • Is a student’s health so compromised that s/he is unable to handle the rigors of postsecondary life? • And the standard to meet would not appear as high as direct threat Drummond Woodsum PTI 2014

  27. Elements • Factor in reasonable accommodation requests • Conditions of readmission should likely be imposed • Regardless of process, due process, at least in terms of a “grievance” option would be required • At involuntary withdrawal stage • At readmission stage • When in doubt, and when there is resistance, always wise to consult with legal counsel Drummond Woodsum PTI 2014

  28. Barrier removal In The Electronic Age ACCESS TO INFORMATION Drummond Woodsum PTI 2014

  29. Where Are We Currently? • Neither the ADA statute nor any of its regulations nor the Rehabilitation Act nor its regulations addresses information technology and web accessibility • In July 2010, the DOJ posted an Advanced Notice of Proposed Rulemaking pursuant to Titles II and III of the ADA • Available at: http://www.gpo.gov/fdsys/pkg/FR-2010-07-26/pdf/2010-18334.pdf#page=1 • We are still waiting for proposed rules Drummond Woodsum PTI 2014

  30. That Has Not Stopped the Feds • In June 2010, the DOJ and OCR issued a Joint Dear Colleague Letter (DCL), seemingly limited to individuals who are blind and the use of e-readers as a course requirement • From there, the DOJ and OCR have expanded that initial DCL to target all forms of electronic technologies and web accessibility and the targeted groups to include students who are deaf/HH; those with mobility impairments and the “print disabled.” Drummond Woodsum PTI 2014

  31. Standard of Access • Individuals with disabilities are able to independently acquire the same information, engage in the same interactions, and enjoy the same services within the same timeframe as individuals without disabilities, with substantially equivalent ease of use. Drummond Woodsum PTI 2014

  32. Examples • Penn State University • In 2010, the National Federation for the Blind (NFB) filed a class complaint with OCR on behalf of students and employees • 2011 agreement between Penn State and NFB with sweeping commitments • Agreement available at: http://accessibility.psu.edu/nfbpsusettlement • Comprehensive accessibility website: http://accessibility.psu.edu Drummond Woodsum PTI 2014

  33. South Carolina Technical College • March 2013 resolution agreement committing system and its colleges to adopt system-wide accessibility measures • Websites • Email • Course management systems • Library resources • OCR used Section 508 standards based on the System’s policy commitment • The resolution agreement is available at: http://www2.ed.gov/about/offices/list/ocr/docs/investigations/11116002-b.pdf Drummond Woodsum PTI 2014

  34. University of Montana • Class complaint filed in 2012 alleging the inaccessibility of the following: • Class assignments and materials on the learning management system Moodle • Live chat and discussion board functions – Moodle • Scanned documents posted on webpages and websites • Course registration via website, Cyber Bear • Classroom clickers Drummond Woodsum PTI 2014

  35. University of Montana • Agreement entered into March 2014: • Adoption of an electronic and information technology accessibility policy and procedures for implementation across all disciplines • Conduct an accessibility audit, student surveys and system-wide trainings • Adopt contract procurement language to ensure accessibility of purchased technologies • Web-based technologies to comply with WCAG 2.0 AA standards; Section 508 for all other electronic and information technology systems Drummond Woodsum PTI 2014

  36. University of Montana • Definition of electronic and information technology • Includes, but is not limited to, the internet and intranet websites, content delivered in digital form, electronic books and electronic book reading systems, search engines and databases, learning management systems, classroom technology and multimedia, personal response systems (“clickers”), and office equipment such as classroom podiums, copiers and fax machines. Drummond Woodsum PTI 2014

  37. University of Montana • Definition of electronic and information technology: • It also includes any equipment or interconnected system or subsystem of equipment that is used in the automatic acquisition, creation, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information. This term includes telecommunications products (such as telephones), information kiosks, Automated Teller Machines (ATMs) transaction machines, computers, ancillary equipment, software, firmware and similar procedures, services (including support services), and related resources. Drummond Woodsum PTI 2014

  38. Louisiana Tech University • Settlement agreement with DOJ • Student filed a complaint alleging that faculty member made use of an Internet-based application that was not accessible to blind users • Settlement agreement available at: http://www.ada.gov/louisiana-tech.htm Drummond Woodsum PTI 2014

  39. Louisiana Tech University • Centerpiece of the agreement: “The University must implement a policy that requires the deployment of accessible technology and course content in the University setting. To that end, the University shall conduct a review of the accessibility of its technology and instructional materials and shall ensure that, from the effective date of and consistent with the Settlement Agreement, all technology, including websites, instructional materials and online courses, and other electronic and information technology for use by students or prospective students, is accessible.” Drummond Woodsum PTI 2014

  40. Note the Focus • The agreement targets current students, incoming students and students seeking enrollment Drummond Woodsum PTI 2014

  41. If You Are All Virtual • Check out OCR settlement agreement with Virtual Community School of Ohio • Compliance No. 15-11-5002, 62 IDELR 124 (OCR 2013) • Although compliance review was of a K-12 public charter school, the language suggests, at least for public institutions, a sweeping read of obligations Drummond Woodsum PTI 2014

  42. What Standards Apply? • Section 508 standards apply to federal agencies • Are the current versions outdated? • Trend appears to be: WCAG 2.0 AA • But can you be confident? • Actual language from a settlement agreement: • “The use of the Accessibility Standards by OCR does not imply that conformance to Section 508, WCAG, and/or other electronic and information technology standard is either required or sufficient to comply with either Section 504 or Title II.” • Virtual Comm. Sch. of Ohio, 62 IDELR 124 (OCR 2013) Drummond Woodsum PTI 2014

  43. Pure Conjecture • From reading recent government settlement agreements: • New websites will have a higher demand of accessibility than existing and archived websites • Primary focus is students • Tip: Perhaps your initiatives should target new websites first Drummond Woodsum PTI 2014

  44. Kincaid Theory • If a campus offers virtual education, assume universal design from the outset Drummond Woodsum PTI 2014

  45. Case Law Update Drummond Woodsum PTI 2014

  46. Test-Taking • Is test-taking a major life activity? • Two federal district courts have so concluded pursuant to the ADA Amendments Act • Rawdin v. American Bd. of Pediatrics, 2013 WL 5948074 (E.D. Pa. 2013) • Doe v. Samuel Merritt Univ., 91 F.Supp. 2d 958 (N.D. Cal. 2013) Drummond Woodsum PTI 2014

  47. Admissions Drummond Woodsum PTI 2014

  48. Careful with Interviews • Court concludes that applicant is entitled to jury trial • Candidate for PhD school psychology program graduated magnum cum laude in 2.5 years • Tied with highest GPA candidate and exceeded minimum GRE score • Only candidate rejected in 7 member applicant pool, one of which had lower scores • Candidate asserts 2 faculty member interviewers were more focused upon her Crohn’s disease than her qualifications Drummond Woodsum PTI 2014

  49. Reasons for Rejection • Court concludes that all five reasons asserted for rejecting her application seemed belied by some evidence, sufficient for jury to decide • SJÖSTRAND v. Ohio State Univ. 2014 WL 1663076(6th Cir. April 28, 2014) Drummond Woodsum PTI 2014

  50. Eligibility Criteria • The DOJ faulted a private college for denying a student diagnosed with HIV the opportunity to continue in its Medical Assistant Program • The settlement agreement *suggests* that the College failed to engage in an interactive process • The College agreed to remove a health questionnaire item asking prospective students if they were “free of all blood-born pathogens such as HIV/AIDS” • Available at: http://www.ada.gov/gwinnett-col-sa.htm Drummond Woodsum PTI 2014

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