Dr M anju Banerjee VP and Director LCIRT Landmark College manjubanerjeelandmarkedu Jeffrey J Nolan JD Dinse Knapp amp McAndrew PC wwwdinsecom Agenda ADA Definitions ID: 816352
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Emerging issues in accommodating students with autism, autism-related spectrum disorders, and other cognitive disabilities
Dr. Manju Banerjee VP and Director, LCIRT Landmark College manjubanerjee@landmark.eduJeffrey J. Nolan, J.D.Dinse, Knapp & McAndrew, P.C.www.dinse.com
Slide2AgendaADA DefinitionsUnderstanding autism, autism-related spectrum disorders, and other cognitive disabilitiesDisability Documentation guidelines and implications (AHEAD 2011)Documentation guidelines for students with Autism Spectrum Disorders Reasonable AccommodationsLegal standardsDocumentation standardsAccommodations process © 2013 Landmark College 2
Slide3Laws ConsideredWe will use “ADA” as shorthand for common requirements of:Federal Americans with Disabilities ActFederal Section 504 of the Rehabilitation ActParallel state public accommodation laws, to extent they provide similar protections (that should be checked with counsel)© 2013 Landmark College 3
Slide4Definition of DisabilityUnder ADA, as broadened substantially by the ADA Amendments Act of 2008 (“ADAAA”), a “disability” is: A physical or mental impairment that substantially limits one or more major life activities, such as, e.g.:eating, sleeping, standing, lifting, bending, breathing, learning, reading, concentrating, thinking and communicatingIncludes the operation of major bodily function, i.e. immune system, digestive, bladder, neurological, respiratory, circulatory, reproductiveAutism spectrum disorders and cognitive disabilities often meet the definition of “disability”© 2013 Landmark College
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Slide5Definition of DisabilityDisability laws also prohibit discrimination against an individual who:Has a “record of” having a disability, orIs “regarded as” having a disabilityUnder ADAAA, a perceived impairment does not have to (be perceived to) limit a major life activity (i.e., be a “qualified ADA disability”) to invoke the “regarded as” protection© 2013 Landmark College 5
Slide6Autism Spectrum and Other Cognitive DisordersSignificant between and within category variability between cognitive disorders – LD; ADHD; psychiatric; ASD Students with ADHD and psychiatric disabilities is the fastest growing minority group in postsecondary education (Belch, 2011; Collins & Mowbray, 2008; GAO report 2009; CDC 2012)Increase in co-morbid and multiple disabilities
Increasing numbers of college students with ASD
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© 2013 LCIRT
Banerjee, M
Slide7Autism Spectrum and Other Cognitive Disorders (cont.)Different manifestations of impairmentLD (skill deficit) Achievement scoresADHD (performance deficit) Executive functionPsychiatric (mental health) Clinical; self-reportAutism Spectrum Communication; social pragmatics; adaptive behaviors
7© 2013 LCIRTBanerjee, M.
Slide8Autism Spectrum and Other Cognitive Disorders (cont.)ASD and psychiatric impairments are not continuous or consistent, even within the individualSimilar to episodicNeed same accommodations, but for different reasonsAccommodation advantage – equity and fairness is more complex
8© 2013 LCIRTBanerjee, M
Slide9Disability DocumentationMost postsecondary institutions have requirements for disability documentation: University of Connecticut –http://www.csd.uconn.edu/documentation_guidelines.htmlETS documentation policy statement - http://www.ets.org/disabilities/documentation/documenting_psychiatric_disabilities/AHEAD guidance on documentation practices –
http://www.ahead.org/uploads/docs/resources/Final_AHEAD_Supporting%20Accommodation%20Requests%20with%20Q&A%2009_12.pdf© 2013 LCIRTBanerjee, M9
Slide10Disability Documentation – Basic ComponentsIndividual DemographicsReason for ReferralBehavioral Observations during TestingDevelopmental, Medical and Educational HistoryTest Battery Results and DiscussionClinical SummaryRecommendations and Accommodations
Different emphasis on components depending on disability© 2013 LCIRTBanerjee, M10
Slide11ExampleEnrolled as a freshman transfer student at a Research One UniversityFather, Uncle and Willy met with DS during first week for intakeDisability documentation was received by DS 2 weeks prior to intake meetingADHD diagnosis and some description of functional limitations; long list of recommended accommodations Copy of accommodation letter from prior institution
WillyRed Flags/Observations?© 2013 LCIRTBanerjee, M
Slide12Case studyDOCUMENTATION REVIEWAverage to above average cognitive profileADHD diagnosis Perfectionist; loner; into video games; anxious---------------------------------------------Limited support for diagnosisPrior accommodations received don’t appear to be supported More psychiatric or ASD than ADHD Red Flags/Observations?
Willy© 2013 LCIRTBanerjee, M
Slide13Students with ASD and psychiatric disabilitiesDifficult to identify profile from Disability Documentation alone!© 2013 LCIRTBanerjee, M
Slide14“Reasonable Accommodations”A “reasonable accommodation” for a student is:a modification or adjustment to a class or program that would allow a qualified student with a disability to participate in the class or program, without fundamentally altering academic or conduct requirements. © 2013 Landmark College 14
Slide15“Reasonable Accommodations” StandardsDOJ regulation provides following standard for standardized testing organizations:“Any private entity offering an examination covered by this section must assure that ... [t]he examination is selected and administered so as to best ensure that, when . . . administered to an individual with a disability that impairs sensory, manual, or speaking skills, the examination results accurately reflect the individual's aptitude or achievement level or whatever other factor the examination purports to measure, rather than reflecting the individual's impaired sensory, manual, or speaking skills ...[.]28 C.F.R. § 36.309(b)(1)(i)© 2013 Landmark College
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Slide16“Reasonable Accommodations” StandardsColleges and universities are not standardized testing organizationsColleges and universities are entitled to deference when exercising professional judgment about academic requirements and fundamental alteration issuesDo not have to provide every accommodation that might help a student with a disability perform betterSee: Forbes v. St. Thomas University, Inc., 768 F.Supp.2d 1222, 1232 (S.D. Fla. 2010); Manickvasagar v. Virginia Commonwealth University School of Medicine, 667 F.Supp.2d 635 (E.D. Va. 2009); Halpern v. Wake Forest University Health Sciences, 669 F.3d 454, 462 (4th Cir. 2012); Hoppe v. College of Notre Dame of Maryland, 835 F.Supp.2d 26, 31 (D.Md. 2011). © 2013 Landmark College
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Slide17Behavioral Issues and AccommodationsInstitutions do not have to waive uniformly-applied behavioral standards as a “reasonable accommodation”Compliance with behavioral standards is element of being “otherwise qualified” as studentInstitutions do not have to accommodate individuals who pose a “direct threat”© 2013 Landmark College 17
Slide18“Direct Threat”“Direct Threat” means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodationInquiry considers:© 2013 Landmark College 18
Slide19Behavioral Issues and AccommodationsWhile uniformly-applied behavioral standards do not have to be waived, institutions should use discretion in handling disability-related “misconduct”Important factors:Severity of misconductCloseness of connection between disability and misconductOCR: Must provide “due process” (notice and opportunity to be heard)© 2013 Landmark College 19
Slide20Threat Assessment ExampleThreat assessment focuses on behaviors, not diagnosesShould not assume there is a connection between mental illness and targeted violenceAberrant behavior may not pose a threatThreat may be posed by individuals who appear to function well in many ways© 2013 Landmark College 20
Slide21Determining Accommodations© 2013 LCIRTBanerjee, M 21
Slide22Steps in Accommodation DeterminationEligibility for accommodations is based on answers to 4 fundamental questions:Is there a disability under the ADA AA?What are the impairments as a result of the disability?Are the impairments substantially limiting to warrant accommodations?What are reasonable accommodations?© 2013 LCIRTBanerjee, M 22
Slide23DocumentationIntake/InputRequirements/Technical Standards
Accommodations23ExpectationsBanerjee, 2012Accommodation Determination is Interactive
Slide24Mining Documentation for Evidence24Banerjee & Shaw, 2007
Slide25Conundrums in Accommodation DeterminationAddressing expectations set by historical precedenceAccommodation request that borders on changing the essential element of program or courseAcademic vs. non-academic accommodationsAccommodation-like supports (non ADA)Accommodation vs. “otherwise qualified” and “code of conduct” behaviors© 2013 Landmark CollegeBanerjee, M 25
Slide26Concluding ThoughtsAvoid simplistic defaults to requested accommodations based on disability typesConsider accommodations as an interactive processRemember accommodations cannot be retroactive Note that accommodation determination is an imperfect science (not a guarantee of success)26
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Thank You!Thank You!For more information:www.landmark.edu/instituteJeffrey J. Nolan, J.D.Dinse, Knapp & McAndrew, P.C.www.dinse.com © 2013 LCIRT
Banerjee, M