Accommodating Disabilities - PowerPoint Presentation

Accommodating Disabilities in Higher Education: Requirements Under Section 504 and the ADA An EducationAdminWebAdvisor Webinar Presented by: Tess O’Brien-Heinzen Boardman & Clark LLP (608) 283-1798 tobrien@boardmanclark.com Copyright © 2017 DKG Media, LP. All rights reserved.

2 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Our webinars are designed to be accurate and authoritative, but we do not provide legal, accounting, or similar professional services. Customer remains solely responsible for compliance with all applicable laws, regulations, and accounting standards. If legal, accounting, or other expert advice is desired, Customer should retain the services of an appropriate professional. Photocopying, distributing or using these copyrighted materials electronically without the copyright owner’s express written consent is strictly prohibited. Consent is granted for the use of purchasers of webinars and then solely for the use of registered attendees of the webinars. No right or license is given to reproduce the materials in any form or format or to place the materials in any format on any website or blog or to otherwise republish it in any manner without the express written permission of the copyright holder. Copyright © 2017 DKG Media, LP. All rights reserved.

3 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education What’s Up and Coming in 2017 - The New Administration - New ADA Regulations - Introduction of the RISE Act of 2016 - Enforcement of Website Accessibility Laws - Introduction of Accessible Instructional Materials in Higher Education Act (AIM HE) - Development of Obligations to Accommodate Service Animals Copyright © 2017 DKG Media, LP. All rights reserved.

4 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education The New Administration  What does it mean for higher education in the context of disability laws?  Possibly: Department of Education’s authority or positions change. Ex: transgender guidance Department of Education and Office for Civil Rights loses enforcement authority and/or funding. This may affect DOE/OCR’s authority to issue guidance, investigate claims, seek resolution agreements and refer to DOJ.  Until it happens, assume that the DCLs and guidance are still enforceable and that OCR is still alive and well. Copyright © 2017 DKG Media, LP. All rights reserved.

5 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education THE BASICS Copyright © 2017 DKG Media, LP. All rights reserved.

6 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education The Laws  Individuals with Disabilities Education Act  Americans with Disabilities Act  Section 504 of the Rehabilitation Act  State Laws Copyright © 2017 DKG Media, LP. All rights reserved.

7 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Federal Statutes and Regulations  Individuals with Disabilities Education Act (“IDEA”). (20 U.S.C. §1400; 34 CFR 300). Affirmative law requiring special education and related services for individuals ages 3-21 who qualify under one of the categories of the law. Individualized Education Program (IEP) identifies present levels of performance, annual goals and special education and related aids and services. Copyright © 2017 DKG Media, LP. All rights reserved.

8 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Federal Statutes and Regulations  Individuals with Disabilities Education Act (“IDEA”). (20 U.S.C. §1400; 34 CFR 300). IDEA does not impose obligations on institutions of higher education. However, IEPs may be used as documentation and/or reference for purposes of determining necessary academic adjustments. Copyright © 2017 DKG Media, LP. All rights reserved.

9 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Federal Statutes and Regulations  Americans with Disabilities Act (“ADA”)(42 U.S.C. §12131 et. seq.; 28 CFR 35).  [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. Title II applies to public schools. Title III applies to private schools and places of public accommodation. Exemption for purely religious schools. Copyright © 2017 DKG Media, LP. All rights reserved.

10 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Federal Statutes and Regulations  Rehabilitation Act of 1973 (“Section 504”)(29 U.S.C. §794; 34 CFR 104)  No otherwise qualified individual with a disability in the United States ... shall solely by reason of his or her disability, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .  Section 504 requires schools to provide students with disabilities the opportunity to participate in or benefit from the school’s programs or services in a manner that is equal to and as effective as that afforded others who are not disabled. At the postsecondary level, this means the educational institution is required to provide students with appropriate academic adjustments and auxiliary aids and services that are necessary to afford individuals with an equal opportunity. Copyright © 2017 DKG Media, LP. All rights reserved.

11 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Federal Statutes and Regulations  Rehabilitation Act of 1973 (“Section 504”)(20 U.S.C. §794; 34 CFR 104).  “Otherwise qualified” means an individual who is able to meet essential eligibility requirements for receipt of services or benefits with or without reasonable modifications to rules, practices, or policies.  At the postsecondary level, a qualified student with a disability is a student with a disability who meets the academic and technical standards requisite for admission or participation in the institution’s educational program or activity. Copyright © 2017 DKG Media, LP. All rights reserved.

12 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Purpose of Section 504 and ADA  Level the playing field.  Ensure that disabled individuals receive even- handed treatment in relation to the able- bodied.  Ensure qualified students with disabilities be given the opportunity to participate in or benefit from the school’s programs or services in a manner that is equal to and as effective as that afforded others who are not disabled. Copyright © 2017 DKG Media, LP. All rights reserved.

13 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Disability Definition Of Disability Under Section 504 Physical or mental impairment which substantially limits one or more major life activities; Has a record of such impairment; or Is regarded as having such impairment. Copyright © 2017 DKG Media, LP. All rights reserved.

14 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Eligibility under Section 504 and ADA Actual Impairment An qualified individual who has a physical or mental impairment that substantially limits a major life activity. Physical or mental impairment Impairment affects a major life activity Substantially limits Copyright © 2017 DKG Media, LP. All rights reserved.

15 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Three Steps to Eligibility  (1) Does the student have a “physical or mental impairment?” Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs, respiratory (including speech organs); cardiovascular; reproductive; digestive; genitor-urinary; hemic and lymphatic; skin; and endocrine; or Any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Physical or mental impairment includes, but is not limited to, contagious and noncontagious diseases such as the following: orthopedic, visual, speech, and hearing impairments, and cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, dyslexia and other specific learning disabilities, Attention Deficit Hyperactivity Disorder, Human Immunodeficiency Virus infection (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism. Copyright © 2017 DKG Media, LP. All rights reserved.

16 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Three Steps to Eligibility  (2) Does the impairment affect a “major life activity”? (a) caring for oneself, performing manual tasks; seeing; hearing; eating; sleeping; walking; standing; reaching; sitting; lifting; bending; speaking; learning; concentrating; communicating; breathing; reading; thinking; writing; interacting with others; working; or, (b) functions of the immune system; special sense organs and skin; normal cell growth; digestive; bowel; bladder; neurological; brain; respiratory; circulatory; cardiovascular; hemic; endocrine; lymphatic; musculoskeletal; and reproductive functions. Copyright © 2017 DKG Media, LP. All rights reserved.

17 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Three Steps to Eligibility  “Major Life Activity” cont’d... Whether an activity is a major life activity is not determined by reference to whether it is of central importance to daily life. 28 CFR s. 35.108. Some examples of disabilities causing impairment of a “major life activity:” cancer (affects normal cell growth); ulcerative colitis, Crohn’s Disease, celiac disease, irritable bowel syndrome (affects function of the bowel) HIV/AIDs (affects function of the immune system epilepsy (affects neurological and brain function) diabetes (affects endocrine system) asthma (affects respiratory system) Remember “learning” is only ONE of the many major life activities listed. Copyright © 2017 DKG Media, LP. All rights reserved.

18 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Three Steps to Eligibility  (3) Does the impairment “substantially limit” the major life activity? “Substantially limits” is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. It is not meant to be a demanding standard. An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. “Substantially limits” must be interpreted to require a degree of functional limitation that is lower than the standard for substantially limited prior to the 2008 amendments. Copyright © 2017 DKG Media, LP. All rights reserved.

19 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Critical Notes Regarding Eligibility  At the eligibility determination stage, a school is prohibited from considering positive mitigating factors such as medication or equipment. The only exception is eyeglasses. May consider negative side effects.  In determining whether an impairment substantially limits a major life activity, consider the conditions under which the person performs the major life activity, the manner in which the individual performs the major life activity, and the duration of time it takes the individual to perform the major life activity or for which the individual can perform the major life activity. Copyright © 2017 DKG Media, LP. All rights reserved.

20 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Critical Notes Regarding Eligibility  The focus is on how a major life activity is substantially limited is not on what outcomes an individual can achieve. For example, an individual might achieve a high level of academic success but be limited in one or more major life activities like speaking, reading, writing, etc., because of the additional time it takes the person or the difficulty in doing so in comparison to the general population.  The effects of an impairment lasting or expected to last less than six months can be substantially limiting. 28 CFR s. 35.108 Copyright © 2017 DKG Media, LP. All rights reserved.

21 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Critical Notes Regarding Eligibility  Alcoholics/drug addicts: students who are currently engaging in illegal use of drugs are excluded. does not include former users, successful rehabilitation participants and students who are regarded as current users.  Does not include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders, compulsive gambling, kleptomania, pyromania or psychoactive substance use disorders resulting from current illegal use of drugs. Copyright © 2017 DKG Media, LP. All rights reserved.

22 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Documenting Disability  No federal standards on documentation of disability at the postsecondary level.  Documentation requirements and practices are determined by individual post-secondary education institutions.  Documentation requirements must be reasonable.  No specific time frame exists for documentation. Copyright © 2017 DKG Media, LP. All rights reserved.

23 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education What Is Required  ADA and Section 504 require modifications to policies, practices, and procedures necessary to ensure equal access to the program or benefit.  ADA and Section 504 require reasonable accommodations that are necessary to ameliorate the disability’s effects of preventing meaningful access to the program or benefit. This includes comparable, convenient, and accessible housing at the same cost as students without disabilities.  ADA and Section 504 require auxiliary aids and services necessary for an individual to access the program or benefit. Copyright © 2017 DKG Media, LP. All rights reserved.

24 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Processing Requests Student must inform the school that he or she has a disability and the need for an academic adjustment (this includes modifications, accommodations and auxiliary aids and services). Postsecondary institutions have no obligation to identify students as having a disability, to assess a student’s needs or pay for testing. Schools may require reasonable documentation of the disability and disability-related need. Schools should have disability services offices and provide students information about requesting adjustments. Schools should also have a 504/ADA Coordinator who coordinates the school’s compliance with the laws. Schools should engage in an interactive process with students. If an accommodation cannot be provided, consider whether an alternative accommodation is available. Copyright © 2017 DKG Media, LP. All rights reserved.

25 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Factors to Consider in Reviewing Requested Adjustments/Accommodations What is the relationship between the adjustment and the school/program’s essential function? What is the educational impact of the adjustment? Is there any negative impact of the adjustment on the educational opportunities afforded non-disabled or other disabled students? Is the requested adjustment rationally related to the functional impairment? What is the severity of the disability? Is there any harm to the student in providing the adjustment? Copyright © 2017 DKG Media, LP. All rights reserved.

26 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Academic Adjustments  Examples of Adjustments: Arranging for priority registration. Reducing a course load. Substituting one course for another. Providing note takers, recording devices, sign language interpreters, and extended time for testing. Equipping school computers with screen reading, voice recognition, or other adaptive software or hardware.  Schools may not charge for academic adjustments. Copyright © 2017 DKG Media, LP. All rights reserved.

27 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education What Is not Required  Modifications/accommodations that would impose undue and financial administrative burdens.  Modifications/accommodations that would fundamentally alter the nature of the service, program or activity. Ex: a school is not required to change the content of the test.  This means a school does not have to provide every accommodation an individual requests or the accommodation of his or her choice (this may be different with respect to effective communication).  A school does not have to provide personal attendants, individually prescribed devices, readers for personal use or study, tutors or other devices or services of a personal nature (unless provided to students without disabilities). Copyright © 2017 DKG Media, LP. All rights reserved.

28 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Fundamental Alteration and Undue Burden  In determining undue burden, consider all resources available for use by the school in the funding and operation of the service, program, or activity.  Administrative inconvenience is not valid defense. Copyright © 2017 DKG Media, LP. All rights reserved.

29 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Determining Question of Fundamental Alteration The decision should be made by relevant officials including faculty. Consider a series of alternatives, feasibility, cost, and effect on program. The decision should include a reasoned deliberation to determine if the accommodation would lower academic standards or if there is a substantial program alternative that student could access. Copyright © 2017 DKG Media, LP. All rights reserved.

30 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education “Reasonable ”  The hallmark of a “reasonable” accommodation is effectiveness.  The question to ask is what is necessary to ameliorate the effects of the disability so the student has equal access.  Decisions must be made on a case-by-case basis.  Ineffective modification or adjustment will not accommodate a student’s limitations. Copyright © 2017 DKG Media, LP. All rights reserved.

31 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education ADA Regulations Copyright © 2017 DKG Media, LP. All rights reserved.

32 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education New ADA Regulations  ADA gave Attorney General authority to issue regulations (42 U.S.C. 12205a)  Went into effect on October 11, 2016  28 CFR Parts 35 and 36  Revisions apply to: Title II – State and local governments Title III – Public accommodations  Many provisions revised to be consistent with EEOC regulations (Title I) Copyright © 2017 DKG Media, LP. All rights reserved.

33 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education New ADA Regulations  Purpose is to incorporate statutory changes to ADA in the ADA Amendments Act of 2008.  Regulations clarify that the definition of “disability” must be broadly construed and applied without extensive analysis.  Regulations state that primary focus should be on whether institutions are meeting their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. Copyright © 2017 DKG Media, LP. All rights reserved.

34 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education New ADA Regulations  Definition of “Physical or mental impairment” expanded to include dyslexia and other specific learning disabilities and Attention Deficit Hyperactivity Disorder  Definition of “Major life activity” expanded to include writing and interacting with others.  Definition of “Major bodily function” expanded to include special sense organs and skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal.  Revised the regulations to closely conform to EEOC regulations. Copyright © 2017 DKG Media, LP. All rights reserved.

35 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education New ADA Regulations  NOTABLE RULES OF CONSTRUCTION. “Major” should not be interpreted to create a demanding standard “Major life activity” is not determined by reference to whether it is of central importance to daily life. “Substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for substantially limits applied prior to the ADAAA. Comparison of individual to others in general population usually does not require scientific, medical or statistical evidence. But it is not prohibited. Six month transitory period applicable to “regarded as” standard is not applicable to the “actual disability” or “record of” prong of the definition. Copyright © 2017 DKG Media, LP. All rights reserved.

36 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education New ADA Regulations  PREDICTABLE ASSESSMENTS. Some impairments will, in virtually all cases, result in a determination of coverage: deafness, blindness, intellectual disability, partially or completely missing limbs or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, muscular dystrophy and multiple sclerosis, HIV, and major depressive disorder, bipolar disorder, PTSD, TBI, OCD, and schizophrenia. Copyright © 2017 DKG Media, LP. All rights reserved.

37 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education New ADA Regulations  In determining eligibility, consider: Conditions under which an individual performs the major life activity; The manner in which the individual performs the major life activity; and The duration of time it takes the individual to perform the major life activity. Do not focus on outcomes an individual can achieve. Copyright © 2017 DKG Media, LP. All rights reserved.

38 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education New ADA Regulations  Mitigating Measures – cannot consider at eligibility stage. Regulations now include: Learned behavioral or adaptive neurological modifications Psychotherapy, behavioral therapy or physical therapy Copyright © 2017 DKG Media, LP. All rights reserved.

39 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education New ADA Regulations  No change to requirements to provide modifications or accommodations in higher education. (Appendix C to Part 35) Copyright © 2017 DKG Media, LP. All rights reserved.

40 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Section 504 Policies  OCR Case No. 09-12-2317, Laney College (February 18, 2014).  OCR’s review of the College’s website in conjunction with the facts gathered in this case indicates that the College needs a more robust Section 504 plan that clearly spells out, and provides notice to students, of the DSPS process for how to request accommodations, how the College will coordinate with faculty to implement approved accommodations, how students can challenge or appeal the College’s decisions regarding accommodations, and how the College will resolve concerns about whether an accommodation would result in a fundamental alteration of a course content.  Finally, OCR’s investigation revealed that more training is needed for instructors on their responsibilities for implementing approved accommodations for students with disabilities . Instructors with whom OCR interviewed indicated a need for more training on how to implement approved accommodations and how to resolve questions or concerns regarding approved accommodations. Copyright © 2017 DKG Media, LP. All rights reserved.

41 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education RISE Act of 2016 Copyright © 2017 DKG Media, LP. All rights reserved.

42 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education RISE Act of 2016  Cosponsored by Sens. Bill Cassidy, Orrin Hatch and Bob Casey.  Referred to Committee on Health, Education, Labor and Pensions on December 8, 2016.  40% of college students that used special education in high school seek accommodations in college and 35% receive them.  One reason for low numbers is that they have to prove they have a disability.  Legislation would make the documentation process easier . Copyright © 2017 DKG Media, LP. All rights reserved.

43 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Rise Act of 2016  Amends the Higher Education Act to require institutions to adopt policies that make it possible for a student to document his or her disability by providing: Documentation that the student had an IEP, including an IEP that may not be current or up to date. (An institution would be able to ask a student for additional documentation if found ineligible for an IEP or exited from the special education program.) Documentation that a student had a 504 plan. A plan or record of service from a private school, an LEA, a SEA or institution of higher ed. A record or evaluation from a relevant licensed professional. A plan or record of disability from another higher ed institution. Documentation of a disability due to service in the uniformed services. Copyright © 2017 DKG Media, LP. All rights reserved.

44 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education COMMON ISSUES Copyright © 2017 DKG Media, LP. All rights reserved.

45 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Admissions  May not make preadmission inquiry as to whether an applicant has a disability. May ask about ability to meet essential program requirements provided the questions are not intended to reveal disability status. http://www2.ed.gov/about/offices/list/ocr/transitionguide.html  After admission, may inquiry on a confidential basis as to a disability that may need adjustment.  May not apply limitations to the number of individuals who may be admitted with disabilities.  May not use any test that has disproportionate, adverse effect on individuals with disabilities unless it is a predictor of success in the program and alternate tests are not available. Copyright © 2017 DKG Media, LP. All rights reserved.

46 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education The Role of Faculty  Training is essential for all faculty members.  Ensure faculty know: The process for granting accommodations and where to direct a student making a request for accommodations. The approved accommodations for students in their classes. Their obligations under the ADA and Section 504 to provide approved accommodations. Attempting to change an approved accommodation or dissuade the student from using an accommodation is prohibited by law. Failure to provide approved accommodations may result in disciplinary action. Retaliation against any student for seeking accommodations is strictly prohibited.  Resolution Agreement, Eastern Florida State College, OCR Complaint #04-13-2625. Copyright © 2017 DKG Media, LP. All rights reserved.

47 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Requests for Flexible Attendance Policies TO CONSIDER: Level of interactions between student/teacher/class Student contributions – are they important Fundamental nature of course – class interaction Loss to others in class by absence Classes build upon one another Expectations and/or Course syllabus Methods used to calculate final grade Classroom practices and polices regarding attendance Copyright © 2017 DKG Media, LP. All rights reserved.

48 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Requests for Flexible Attendance Policies Institute well-developed policies and procedures for considering and implementing requests. Consider student’s disability. What is the connection between the disability and the need for flexible attendance? Consider fundamental nature of each course. Would a flexible attendance policy alter that? Engage in thoughtful consideration, iterative process with student, and examination of possible alternatives. Copyright © 2017 DKG Media, LP. All rights reserved.

49 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Requests for Flexible Attendance Policies OCR has determined in past that it is unreasonable to require student to negotiate alone with faculty over the substance of accommodations. Faculty should not make the determination of fundamental alteration without input from disability services. Faculty member may not know nature of student’s disability and leaving it to student and faculty may force student to share that information. Copyright © 2017 DKG Media, LP. All rights reserved.

50 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Requests for Flexible Attendance Policies Granting accommodation:  Be clear with expectations with student and faculty.  Require student to verify absence and reasons for each one. Denying accommodation:  Document thorough consideration process including discussions with student, factors considered, alternatives presented, problems with requested accommodations. Copyright © 2017 DKG Media, LP. All rights reserved.

51 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education ADHD  A diagnosis of ADHD is evidence that a student may have a disability. OCR presumes that a student with ADHD is substantially limited in one or more major life activities.  U.S. Department of Education, Office for Civil Rights, Students with ADHD and Section 504: A Resource Guide (July 2016). http://www2.ed.gov/about/offices/list/ocr/letters/colleague- 201607-504-adhd.pdf  “Even though this letter and Resource Guide focus on the elementary and secondary education contexts, educators should be aware that ADHD can impact a student’s access to a program at the preschool and postsecondary levels, and educators have obligations under Federal disability civil rights laws to these students as well.” Copyright © 2017 DKG Media, LP. All rights reserved.

52 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education SERVICE ANIMALS Copyright © 2017 DKG Media, LP. All rights reserved.

53 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Service Animals  REGULATIONS AND FAQS On September 15, 2010, the U.S. Department of Justice (DOJ) published Final Rules governing the issue of service animals in school. (28 C.F.R. Part 35) On July 20, 2015, the DOJ issued a “Frequently Asked Questions About Service Animals and the ADA.” http://www.ada.gov/regs2010/serviceanimalqa.html  Schools are required to modify practices or procedures to permit the use of service animals on school premises or at school activities for individuals with disabilities. Copyright © 2017 DKG Media, LP. All rights reserved.

54 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Definition of Service Animal “Service animal” is defined narrowly under the ADA.  A “service animal” is defined as a dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.  Miniature horses are included in ADA regulations. While not defined as service animals, schools must make reasonable modifications to allow the use of miniature horses. Additional assessment factors may be considered including size, weight, etc. Copyright © 2017 DKG Media, LP. All rights reserved.

55 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Service Animals Access to Public Areas  Service animals must be allowed in all areas where the public is allowed except where the dog would present a legitimate safety risk or would fundamentally alter the nature of a public entity’s services. Copyright © 2017 DKG Media, LP. All rights reserved.

56 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education The Service Animal’s Work The dog’s work must be related to individual’s disability. Dog must perform work directly related to the individual’s disability. The regulations provide a non-exhaustive list of work or tasks including assisting navigation for individuals with sight problems; alerting the deaf or hard of hearing about the presence of people or sounds; pulling a wheelchair, assisting during a seizure, providing nonviolent protection or rescue work, retrieving items, providing physical support balance and stability, alerting individuals about the presence of allergens, and helping persons with psychiatric or neurological disabilities by preventing or interrupting impulsive or destructive behaviors. Tasks that psychiatric service animal might perform: interrupting, calming, grounding, reminding, and performing safety checks. Ex: a dog that has been trained to sense an anxiety attack or lesson it’s impact may qualify as a service animal. Copyright © 2017 DKG Media, LP. All rights reserved.

57 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Inquiries about Service Animals  Schools may ask only two questions about service dogs: whether the animal is a service animal required because of a disability; what work or task the animal has been trained to perform.  Schools may not require the dog to demonstrate the task, inquire about the nature of the disability or require documentation of certification, training or licensing. No vest, harness or ID tag is required.  A service animal does not have to be professionally trained. Individuals with disabilities have the right to train the dog themselves.  A service animal in training is not considered a service animal under the ADA (however, see Wisconsin Public Accommodation Law, sec. 106.52, Wis. Stats., which covers service animal trainers). Copyright © 2017 DKG Media, LP. All rights reserved.

58 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Removing a Service Animal Schools may ask an individual to remove a service dog in these situations.  If the dog is out of control and the handler does not take action to control it (e.g., barks repeatedly);  If the dog would cause a fundamental alteration to the service or program. DOJ clarifies that in most situations, this will not occur.  If the dog poses a direct threat to the health or safety of others (dogs cannot be excluded based upon breed reputation but dogs trained to be attack dogs may be excluded); or  If the dog is not housebroken. Allergies and fear.  Allergies and generalized fear are not reasons to deny a service dog. If another individual’s allergies qualify as a disability then officials will have an obligation to accommodate both individuals. Copyright © 2017 DKG Media, LP. All rights reserved.

59 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Handling a Service Animal  A service animal must be under a handler’s control.  The handler is responsible for caring for and supervising the animal including toileting, feeding, grooming and veterinary care.  “In the school (K-12) context and in similar settings, the school or similar entity may need to provide some assistance to enable a particular student to handle his or her service animal.”  Service animal must be harnessed, leashed or tethered while in public places unless it interferes with the animals work or the individual’s disability prevents the individual’s use of these devices. In that case, voice, signal or other means of control may be used. Copyright © 2017 DKG Media, LP. All rights reserved.

60 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Vaccination and Licensing Requirements  Service animals are not exempt from local animal control or public health requirements such as vaccination requirements.  Service animals are subject to local dog licensing and registration requirements. This is distinct from being registered as a service animal , which may not be required. Municipalities that prohibit certain breeds of dogs must make an exception for a service animal of a prohibited breed unless the dog poses a direct threat to the health or safety of others. The “direct threat” determination is on a case-by-case basis considering the animals actual behavior or history and not generalizations about the breed. Copyright © 2017 DKG Media, LP. All rights reserved.

61 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Additional Notes on Service Animals Service animals must be allowed in food service lines and communal food preparation areas. An individual cannot be charged an additional fee for a service animal. Multiple service animals may be allowed. Service animals must be allowed in public areas of hospitals. Individuals may not allow the service animal to sit or be fed at the table. ADA does not override public health rules that prohibit dogs in swimming pools. A service animal must be allowed on the pool deck or other public area. Religious organizations such as churches, temples, mosques etc. are exempt from the requirements of the ADA. State law may apply, however. Copyright © 2017 DKG Media, LP. All rights reserved.

62 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education ASSISTANCE ANIMALS Copyright © 2017 DKG Media, LP. All rights reserved.

63 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Fair Housing Act- Assistance Animals  The Fair Housing Act, 42 U.S.C. § 3601 et seq. (FHA), requires housing providers to make reasonable accommodations to no pets policies for individuals with disabilities to live with assistance animals.  April 19, 2013 District Court in Nebraska determined that student room was a “dwelling” under the FHA. United States v. University of Nebraska at Kearney, 940 F. Supp. 2d 974 (D. C. Neb. 2013).  U.S. Department of Housing and Urban Development (HUD) issued a memorandum to clarify the differences between service animals under the ADA and assistance animals under the FHA. https://portal.hud.gov/hudportal/documents/huddoc?id=servani mals_ntcfheo2013-01.pdf Copyright © 2017 DKG Media, LP. All rights reserved.

64 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Assistance Animals  The definition of “assistance animals” is broader than the definition of “service animal” under the ADA. An assistance animal works, provides assistance, or performs tasks for a person with a disability or provides support that alleviates one or more identified symptoms or effects of a person’s disability.  Neither the FHA nor Section 504 require an assistance animal to be trained or certified.  An assistance animal is often a dog but may be another type of animal. No specific regulation.  Individuals may not be required to pay a deposit normally charged to other pet owners. Copyright © 2017 DKG Media, LP. All rights reserved.

65 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Considerations Regarding Assistance Animals  Does the person seeking to use and live with the animal have a disability?  Does the person making the request have a disability- related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?  If the answer to both is yes, then the housing provider must allow assistance animal in all areas of the premises where persons are normally allowed to go. Copyright © 2017 DKG Media, LP. All rights reserved.

66 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Inquiries about Disability  If a disability is not readily apparent, a housing provider may ask an individual to provide reliable documentation of a disability and their disability- related need for an assistance animal. If the disability is apparent or readily known, but the disability- related need is not, the housing provider may ask for documentation of the disability-related need for an assistance animal.  A housing provider may not ask a tenant to provide access to medical records or medical providers or to provide detailed or extensive information or documentation. Copyright © 2017 DKG Media, LP. All rights reserved.

67 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Denying Assistance Animals  Request for assistance animal may be denied based upon: Undue burden Fundamental alteration Direct threat to health or safety of others Substantial physical damage to property  Request may not be denied based upon breed, size, or weight limitations.  Denials must be based upon objective evidence about the animal’s actual conduct, not on mere speculation or fear about the animal. Copyright © 2017 DKG Media, LP. All rights reserved.

68 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Assistance Animal or Service Animal?  When faced with a request to modify policies to allow an animal, determine first if it is a service animal. If so, you may only ask two questions under the ADA. If not, you may continue onto inquiry regarding assistance animal.  In situations where the ADA and FHA/Section 504 apply simultaneously, housing providers must meet their obligations under both the reasonable accommodation standard of the FHA and the service animal provisions of the ADA.  Issues may arise when individuals attempt to bring assistance animals out of housing and into public places of accommodation covered by the ADA rather than the FHA. Issues also arise in trying to determine when an animal is an emotional support animal or a pet that provides support. Copyright © 2017 DKG Media, LP. All rights reserved.

69 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education September 2015 Consent Decree  The University of Nebraska at Kearney (UNK) and the Board of Regents of the University of Nebraska recently agreed to pay $140,000 to two former students to settle a fair housing lawsuit involving assistance animals in student housing. https://www.justice.gov/opa/pr/justice-department-and-university-nebraska- kearney-settle-lawsuit-over-rights-students  In its complaint, the Justice Department alleged that the university violated fair housing law when, in 2010, it denied requests to allow two students with psychological disabilities to keep an emotional support dog with them in a 102- unit apartment complex that the university operates for students near its campus. One of the students filed a complaint with HUD, which investigated and referred the matter to the Justice Department.  Under the settlement, the university agreed to change its housing policy to allow persons with psychological disabilities to keep animals with them in university housing where such animals provide necessary therapeutic benefits to such students. The animals are limited to the individual’s privately assigned individual living accommodation (room, suite, apartment). Copyright © 2017 DKG Media, LP. All rights reserved.

70 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education January 2016 Consent Decree  Kent State University recently agreed to settle a fair housing case filed by the Justice Department alleging that the university had maintained a policy of not allowing students with psychological disabilities to keep emotional support animals in university-operated student housing. Under the settlement agreement, the university agreed to: Pay $100,000 to two former students who were allegedly denied a reasonable accommodation to keep an emotional support dog in their university-operated apartment; Pay $30,000 to the fair housing organization that advocated on behalf of the students; Pay $15,000 to the United States; and • Adopt a housing policy that will allow persons with psychological disabilities to keep animals with them in university housing when such animals provide necessary therapeutic benefits to such students and it would not fundamentally alter the nature of the housing.  https://www.justice.gov/opa/pr/justice-department-reaches-settlement-kent- state-university-resolve-allegations Copyright © 2017 DKG Media, LP. All rights reserved.

71 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education EFFECTIVE COMMUNICATION Copyright © 2017 DKG Media, LP. All rights reserved.

72 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education FAQ Effective Communication for Students with Hearing, Vision, or Speech Disabilities – Nov. 2014  On November 12, 2014, the OCR and the DOJ issued a Frequently Asked Questions (FAQ) document on effective communication for students with hearing, vision, or speech disabilities.  http://www2.ed.gov/about/offices/list/ocr/l etter/colleague-effective-communication- 201411.pdf Copyright © 2017 DKG Media, LP. All rights reserved.

73 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Effective Communication - The Basics  Title II and its implementing regulations require schools to ensure that communication with students with hearing, vision, or speech disabilities is as effective as communication with students without disabilities.  Schools must provide appropriate “auxiliary aids and services” where necessary to provide effective communication.  Title II requires covered entities, including public schools, to give “primary consideration” to the auxiliary aid or service requested by the student with the disability when determining what is appropriate for that student.  Title III entities are encouraged to consult with the person with a disability to discuss what aid or service is appropriate. The goal is to provide an aid or service that will be effective, given the nature of what is being communicated and the person’s method of communicating.  If a particular auxiliary aid or service would be a fundamental alteration in the nature of a service, program, or activity, or be an undue financial and administrative burden, the school does not need to provide that auxiliary aid or service. Copyright © 2017 DKG Media, LP. All rights reserved.

74 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Auxiliary Aids and Services  “Auxiliary aids and services make aurally or visually delivered information available to students with hearing, vision, or speech disabilities so that they can receive information from, and convey information to, others as effectively as students without disabilities.”  Example auxiliary aids and services for hearing impaired: Interpreters, note takers, real-time computer-aided transcription services (e.g., CART), assistive listening systems, accessible electronic and information technology, and open and closed captioning.  Example auxiliary aids and services for visually impaired: qualified readers, taped texts, audio materials, Braille, screen reader software, magnification software, large print, and accessible electronic and information technology.  Example auxiliary aids and services for a person with a speech disability, some examples of auxiliary aids or services are a word or letter board, writing materials, spelling to communicate, a qualified sign language interpreter, taped texts, a computer, a portable device that writes and/or produces speech, and telecommunications services. Copyright © 2017 DKG Media, LP. All rights reserved.

75 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Factors to Consider in Determining Auxiliary Aids and Services  The determination of what auxiliary aids or services will provide effective communication must be made on a case-by-case basis, considering:  The communication used by the student.  The nature, length, and complexity of the communication involved.  The context in which the communication is taking place.  Keep in mind that technology is evolving. Copyright © 2017 DKG Media, LP. All rights reserved.

76 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Access, Timeliness and Privacy  The auxiliary aid or service provided must permit the person with the disability to access the information. Students with disabilities must be able to access the educational opportunity and benefit with " substantially equivalent ease of use " as students without disabilities. An accommodation or modification that is available only at certain times (such as an aide to read to the student) will not be considered "equally effective and equally integrated" where other students have access to the same information at any time and any location, as is the case with a website or other online content.  The auxiliary aid or service must be provided in a timely manner.  The auxiliary aid or service must be provided in a way that protects the privacy and independence of the student with the disability Copyright © 2017 DKG Media, LP. All rights reserved.

77 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Fundamental Alteration and Undue Burden  Title II entities – A high level official, no lower than a Department head must make the determination that a particular auxiliary aid or service would result in a fundamental alteration in the nature of the service, program, or activity or in undue financial and administrative burdens after considering all resources available for use by the school in the funding and operation of the service, program, or activity and the effective on other expenses or operations.  Title III entities - should take into consideration the nature and cost of the aid or service relative to their size, overall financial resources, and overall expenses.  Compliance with the effective communication requirement would, in most cases, not result in undue financial and administrative burdens Copyright © 2017 DKG Media, LP. All rights reserved.

78 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Companions  In many situations, covered entities communicate with someone other than the person who is receiving their goods or services. For example, school staff usually talk to a parent about a child’s progress; hospital staff often talk to a patient’s spouse, other relative, or friend about the patient’s condition or prognosis. The rules refer to such people as “companions” and require covered entities to provide effective communication for companions who have communication disabilities.  The term “companion” includes any family member, friend, or associate of a person seeking or receiving an entity’s goods or services who is an appropriate person with whom the entity should communicate. Copyright © 2017 DKG Media, LP. All rights reserved.

79 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education WEBSITE ACCESSIBILITY Copyright © 2017 DKG Media, LP. All rights reserved.

80 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Website Accessibility  Website accessibility means that individuals with disabilities can perceive, understand, navigate, interact, and contribute to the Web in a way that is equal to and as effective as that of individuals without disabilities.  Institutions must ensure that individuals with disabilities can access the programs and benefits with “substantially equivalent ease of use” as individuals without disabilities.  Example: an individual with a hearing impairment can access the information on a website via closed captioning 24/hours a day.  http://www2.ed.gov/about/offices/list/ocr/letters/collea gue-201105-pse.html Copyright © 2017 DKG Media, LP. All rights reserved.

81 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Who Is Impacted?  Individuals with vision impairments: blindness or low vision May not be able to access undescribed website images May need color contrast or adjustable font  Individuals with limited manual dexterity May need speech recognition or keyboard alternatives May not be able to navigate mouse  Individuals with hearing impairments May need closed captioning Copyright © 2017 DKG Media, LP. All rights reserved.

82 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Standards for Website Compliance Section 508 of the Rehabilitation Act  Section 508 of the Rehab Act (29 U.S.C. §794d) requires the federal government to ensure that electronic and information technology that it develops, procures, maintains or uses is accessible, unless it causes an undue burden.  Those who provide the federal government with electronic and information technology must do so in an accessible manner. 36 C.F.R. §1194.22. Copyright © 2017 DKG Media, LP. All rights reserved.

83 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Standards for Website Compliance Web Content Accessibility Guidelines 2.0  The widely accepted standard for accessibility is the Web Content Accessibility Guidelines 2.0 (WCAG) Level AA.  Formed by the World Wide Web Consortium to bring accessibility considerations into the technology development of the Web Consortium and to determine guidelines for accessible technology. Copyright © 2017 DKG Media, LP. All rights reserved.

84 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Accommodations Could Include:  Providing a plain-text alternative version of PDFs so that they can be read by a screenreader  Adding captions to videos or providing a transcript for audio recordings  Fixing your website’s semantic structure so it can be navigated by screenreader and by keyboard  Adding alt text to convey information in images or graphics for blind users  Changing the font type, size, or color contrast of text for low-vision or colorblind users Copyright © 2017 DKG Media, LP. All rights reserved.

85 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Guidance Is Coming ...Maybe  Supplemental Advance Notice of Proposed Rulemaking (SANPR) was issued on May 9, 2016 DOJ considering revisions to ADA Title II Regulations since at least 2010 Supplement to 2010 Rule-making notice Comment period initially set to close on August 8, 2016 Extended to October 7, 2016 Copyright © 2017 DKG Media, LP. All rights reserved.

86 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education OCR Activity  Disability Rights Advocate – State of Michigan Filed over 600 complaints in the past year and half  OCR Website has list of Resolution Agreements  May search for and review at: http://www2.ed.gov/about/offices/list/ocr/frontpage/faq/readingroom.html Click on “Case Resolutions” Copyright © 2017 DKG Media, LP. All rights reserved.

87 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education OCR Activity – Multi-state Settlements  June 29, 2016 – Multi-state settlements announced Seven States and One Territory (Guam) — Alaska, Montana, New Mexico, Nevada, Oregon, Utah, Washington 11 Different Parties — Various School Districts, Departments of Education, School for Deaf and Blind  Inaccessible online services and programs covered under both Section 504 and Title II Copyright © 2017 DKG Media, LP. All rights reserved.

88 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education OCR Activity – Multi-state Settlements  All Parties expressed interest in voluntary resolution  Commitments agreed to: Qualified auditor to audit content and functionality and identify barriers Adopt policies/procedures to ensure all new or modified content will be accessible Corrective action plan prioritizing removal of barriers Post notices on how to request access to inaccessible materials Provide training to all appropriate personnel Copyright © 2017 DKG Media, LP. All rights reserved.

89 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Compliance References https://www.w3.org/WAI/ Website Accessibility Initiative Web Content Accessibility Guidelines 2.0 (WCAG)  Section 504 Coordinator Conspicuously post contact information Reference to Grievance Process/Procedures  Auditing sites: https://siteimprove.com http://webaim.org Copyright © 2017 DKG Media, LP. All rights reserved.

90 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education AIM HEA Act  Independent commission created to develop voluntary guidelines for accessible postsecondary electronic instructional materials and related technologies.  “Stakeholders” on commission will include: individuals with disabilities, higher education leadership, relevant industry representatives.  Institutions of higher ed that requires, provides or both, instructional materials or technologies that conform with guidelines will be deemed compliant with ADA and Section 504 and qualify for safe harbor for liability in relation to obligations under those laws.  Institutions of higher ed that requires, provides or both, instructional materials or technologies that do not fully conform with guidelines but that meet certain criteria will qualify for a limited safe harbor from monetary damages and be subject only to declaratory and injunctive relief and attorney’s fees. Copyright © 2017 DKG Media, LP. All rights reserved.

91 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education RELEVANT CASE LAW AND ADMINISTRATIVE DECISIONS Copyright © 2017 DKG Media, LP. All rights reserved.

92 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Develop a Process and Follow It  Doe v. Bd. Of Regents of the Univ. of Neb., 846 N.W.2d 126 (Neb. 2014).  Facts: Plaintiff alleged that the University discriminated against him because of his chronic and recurrent depressive disorder disability.  Holding and Reasoning: Plaintiff failed to prove discrimination. The University had an Office of Services for Students with Disabilities. Students were informed of the office, its policies and the services offered in the handbook and on the website. The policies required that a student must contact the center and fill out an application for disability accommodation. The policy stated that faculty would not be expected to provide accommodations without a letter from the disability office verifying eligibility and setting forth the accommodation plan. The plaintiff never contacted the disability office. Copyright © 2017 DKG Media, LP. All rights reserved.

93 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Develop a Process and Follow It  Doe v. Bd. Of Regents of the Univ. of Neb., cont’d...  Reasoning : The University could not be liable if it did not know of the plaintiff’s disability. “The ADA and the Rehabilitation Act do not require clairvoyance.” Mental disabilities are rarely open and obvious and often school officials are unaware they exist without being told. The fact that plaintiff may have told a couple of faculty members that he was depressed or stressed wasn’t enough to establish the University knew of his disability or the proper accommodations for plaintiff. Copyright © 2017 DKG Media, LP. All rights reserved.

94 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Develop a Process and Follow It  Grabin v. Marymount Manhattan College, 2014 U.S. Dist. LEXIS 79014 (S.D. NY 2014).  Facts : Plaintiff had a blood disorder which caused her to be out of school and frequently hospitalized. When she received an unofficial withdrawal for a class she missed due to her lengthy hospital stays and didn’t graduate on time, she brought suit against the college.  The school argued that it was never put on notice of her disability as she didn’t register as a disabled student, obtain a disability card or provide medical documentation for her disability. Copyright © 2017 DKG Media, LP. All rights reserved.

95 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Develop a Process and Follow It  Holding and Reasoning: Plaintiff established a genuine issue of disputed fact as to whether she notified the school of her disability and requested accommodations. While plaintiff did not follow the college’s disability documentation process, her testimony revealed that she informed a number of administrators of her disability at the time she enrolled and repeatedly throughout the semester. She also testified that they told her she did not need to submit documentation or doctor’s notes and that they would take care of everything.  This was enough to establish a genuine material issue of fact and preclude summary judgment. Copyright © 2017 DKG Media, LP. All rights reserved.

96 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Case Law: Fundamental Alteration  Mcculley v. University Of Kansas School Of Medicine, 50 NDLR 167 (10th Cir. 2014).  Facts: Plaintiff suffered from Type III spinal muscular atrophy, which necessitated use of a wheelchair for mobility and limited her arm strength. In 2011, she was admitted to KUSOM. The school's accreditation required that it articulate "technical standards" which all admitted students must meet and which included a Motor Technical Standard, which mandated that students "be physically able to ... carry out diagnostic procedures" and "provide general care and emergency treatment to patients," including CPR, opening obstructed airways, and "obstetrical maneuvers.“  After reviewing her requested modification, aids and services which included a staff person to assist her with lifting and positioning patients, stabilizing elderly patients, and performing basic life support, the faculty concluded that plaintiff could not meet KUSOM's Motor Technical Standard, and rescinded her admission. Copyright © 2017 DKG Media, LP. All rights reserved.

97 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Case Law: Fundamental Alteration  McCulley v. University of Kansas School of Medicine, cont’d.  Holding: In a lawsuit under the ADA, the court held for the school finding that having a staff member interact with patients on plaintiff’s behalf would fundamentally alter the nature of her medical education, which trains her to engage with patients, often in emergency situations where assistance is unavailable, and would require the school to change its technical standards which are directly related to its accreditation. Finally, the court found persuasive that the school was not indifferent to the student’s requests – it engaged in an iterative process and allowed her ample opportunity to request accommodations and demonstrate their feasibility before rescinding her admission.  “The ADA does not authorize us to make sweeping revisions to the content of medical school curricula. Moreover, the clinical procedures that McCulley seeks to have staff members perform on her behalf are not KUSOM's arbitrary constructs. They are required as part of the United States Medical Licensure Examination.” Copyright © 2017 DKG Media, LP. All rights reserved.

98 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Case Law: Fundamental Alteration  Featherstone v. Pac. Northwest Univ. of Health Sciences, 2014 U.S. Dist. LEXIS 102713 (E.D. Wash. 2014).  Facts: Plaintiff, who was deaf and unable to lip-read in educational settings sought to be a doctor. To interact in an educational setting he required interpreters and captioning services. He applied for admission to medical school at Pacific Northwest University. He was accepted and the University began working on his accommodation requests. PNWU notified plaintiff that they needed time to arrange for aids and services and proposed deferring his admission for a year. Plaintiff agreed.  The following spring, PNWU withdrew his admission explaining its decision by citing concerns for patient safety in clinical situations, anticipated compromised educational experiences for classmates, and an anticipated inability to meet the time requirements of performance exams. Plaintiff sought a preliminary injunction seeking to be admitted in the fall as planned. To succeed on the preliminary injunction the plaintiff had to establish that he was likely to succeed on the merits. Copyright © 2017 DKG Media, LP. All rights reserved.

99 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Case Law: Fundamental Alteration  Featherstone v. Pac. Northwest Univ. of Health Sciences, cont’d  Holding : Court held that plaintiff could meet the burden of producing evidence that he was otherwise qualified to be a medical student at the University with reasonable accommodations and that the requested accommodations would not require a fundamental or substantial modification of its program or present an undue burden to the school.  Plaintiff’s request for interpreters and captioning are the same type of services embodied in the federal regulations and common in the educational environment. Since the services would allow the plaintiff to learn in the classroom and in the clinical setting and interact with fellow students and patients in the clinic setting, the court found it likely that with accommodations, the plaintiff would be qualified.  The court stated that “mere speculation that a suggested accommodation is not feasible” falls short of the reasonable accommodation requirement. An interpreter is nothing more than a communication aid. While it adds another person in the room, it does not alter the fact that plaintiff will have to successfully complete the labs, communicate with patients and complete the clinical program. Copyright © 2017 DKG Media, LP. All rights reserved.

100 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Case Law: Conduct Caused by Disability  An institution may dismiss a student for engaging in unacceptable behavior without violating the ADA or Section 504 even if the behavior was precipitated by a disability. See Despard v. Indiana University et. al., 115 LRP 39983 (S.D. Ind. 2015); Tylicki v. St. Onge , 297 Fed. Appx. 65, 67 (2nd Cir. 2008)(“The ADA and Rehabilitation Act permit [an institution] to discipline a student even if the student’s misconduct is the result of the disability.”); Halpern v. Wake Forest Univ. Health Scis. , 669 F. 3d 454, 465 (4 th Cir. 2012)(“a school . . . May be obligated to make accommodations to help the student avoid engaging in misconduct, . . . the law does not require the school to ignore misconduct that has occurred because the student subsequently asserts it was the result of a disability.”) Copyright © 2017 DKG Media, LP. All rights reserved.

101 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Case Law: Notice of Disability  Neither the ADA nor Section 504 require a school to ignore misconduct that has occurred because the student subsequently asserts it was the result of a disability. See Zimmeck v. Marshall University Board of Governors , 115 LRP 57258 (4 th Cir. 2015)(student failed to meet professionalism standards and did not request accommodations for mental health issues until after the initial decision was made to dismiss her).  To state a claim under the ADA, student must be able to show that the disability and its consequential limitations were known by the educational institution. Choi v. University of Texas Health Science Center at San Antonio , 115 LRP 57265 (5 th Cir. 2015)(student informed school of ADD diagnosis for the first time during the dismissal process resulting from failing school). Copyright © 2017 DKG Media, LP. All rights reserved.

102 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education OCR: Reasonable Documentation Requirement  OCR Case No. 11-14-2247, Forsyth Technical Community College, (October 9, 2014).  Facts: Student submitted to College documentation from a physician to support his ADHD diagnosis. The documentation did not indicate there was any assessment to support the diagnosis. The College told the student he needed comprehensive psycho-educational evaluation” including assessment of aptitude, achievement and information processing. The student followed up with a psychologist who informed him that the testing requested was an additional cost not necessary to the ADHD diagnosis. The psychologist completed the DSM-IV-TR Code for ADHD and provided a clinical summary and other documentation for the diagnosis. College denied in part on the basis that the testing was not in conformity with the Disability Services documentation guidelines.  Finding: “OCR concludes that the College inappropriately denied the Complaint’s second request for accommodations in March when he provided the DSM-IV-TR Code for ADHD, a clinical summary and other documentation for the ADHD diagnosis from a psychologist. A postsecondary institution is required to establish reasonable procedures and set reasonable standards for documentation. OCR further concludes that the written requirement that students of varying disability classifications submit extra neuropsychological assessments in order to rule out other diagnoses is unreasonable.” Copyright © 2017 DKG Media, LP. All rights reserved.

103 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education OCR: Blanket Policies Against Aids or Services Violates 504  OCR Case No. 15-14-2215, Davenport University (February 13, 2015).  Facts: University had a blanket policy against providing scribes.  Finding: OCR found that the blanket policy violated Section 504. “A postsecondary educational institution must analyze the appropriateness of an aid or service in its specific context; accordingly, any blanket policy prohibiting the use of any auxiliary aid or service necessarily neglects to consider whether an aid is appropriate in a particular situation so that a student with a disability has equal opportunity to gain the same benefit as a student without a disability and constitutes a violation of Section 504. ” Copyright © 2017 DKG Media, LP. All rights reserved.

104 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education OCR: Interactive Process Essential  OCR Case No. 09-14-2407, Whittier Law School (June 30, 2015).  Facts: Student submitted documentation of disability and asked for double time on tests. School submitted documentation to outside consultant who decided student would be given time and a quarter on tests. Student was not given any reason for the denial of double time nor any opportunity to have a meaningful interaction with the school about the request.  Finding: OCR found that the school’s process violated Section 504. “Section 504 envisions a meaningful and informed process with respect to provision of accommodations, e.g., through an interactive and collaborative process between the school and the Student. If a school decides to deny a request for an accommodation, it should clearly communicate the reason for its decision to the student, so that the student has a reasonable opportunity to respond and provide additional documentation that would address the school’s objections.”  “In rejecting the recommendation that the Student receive double time on his exams, the Law School did not explain the specific reasons for this decision to the Student – either verbally or in writing. The School did not offer to engage in an interactive process with the Student to resolve the difference in testing time, despite its obligation under Section 504 to interact with the Student to arrive at a final decision, rather than imposing its decision on the Student unilaterally. Therefore, the Student did not have information to appeal the decision, or even discuss it in a meaningful way with the Law School.” Copyright © 2017 DKG Media, LP. All rights reserved.

105 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Technology Must Keep Pace Cal. Council of the Blind v. County of Alameda, 985 F. Supp. 2d 1229 (N.D. Cal. 2013).  The legislative history of the ADA reveals that Congress intended for accommodations provided to individuals with disabilities to "keep pace with the rapidly changing technology of the times": The Committee wishes to make it clear that technology advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities. Such advances may require public accommodations to provide auxiliary aids and services in the future which today they would not be required because they would be held to impose undue burdens on such entities. Indeed, the Committee intends that the types of accommodations and services provided to individuals with disabilities, under all of the titles of this bill, should keep pace with the rapidly changing technology of the times. H.R. Rep. 101-485(II), at 108 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 391. Copyright © 2017 DKG Media, LP. All rights reserved.

106 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Remember These Things Know the law. Keep current on OCR and DOJ guidance and on new case law. Develop policies and procedures that follow the law. Follow your own policies and procedures. Train administration and staff regarding policies and procedures. Make individual inquiries and assessments for each student who requests accommodations. Allow for an interactive process between the student and the school and think outside the box. Copyright © 2017 DKG Media, LP. All rights reserved.

107 EducationAdminWebAdvisor Webinar: Accommodating Disabilities in Higher Education Questions? Email or call Tess O’Brien: tobrien@boardmanclark.com 608-283-1798 Copyright © 2017 DKG Media, LP. All rights reserved.