hot topics in disability...

Hot Topics in Disability Services: Current legal trends for suicidal students and emotional support animals on college campuses

Jon Abernathy, Doctoral Student Director, Disability ServicesUnion University

Luke Pruett, J.D. Candidate University of Memphis Law School

Background!❖  Jon Abernathy

❖  Ed.D. Student, Union University

❖  M.S.Ed. Baylor University

❖  B.S.B.A. Union University

❖  Office for Disability Services, Union University (2011)

❖  Academic Support Programs, Baylor University (2009)

❖  Luke Pruett❖  J.D. Candidate, University of Memphis Law School

❖  M.A. Student, University of Memphis

❖  B.A. Union University

❖  Resident Director, Union University (2008)

❖  Admissions Counselor, Union University (2006)

Disclaimer!We are not providing legal counsel.

We are providing our personal interpretations of legal research and best practices.

We encourage you to always consult with legal counsel before making any adverse enrollment decisions regarding

direct threat policies.

Survey Results!

❖  30 ACSD institutions from 1,000-10,000 UG enrollment.

❖  90% had direct threat policies that met best practice standards.

❖  80% of the institutions had some type of ESA policy.

❖  Most unique ESA process: Included legal counsel, provost, and medical staff determining if a ESA was an appropriate accommodation.

❖  Most illegal answers: “We don’t do that.” or “We have a process for approving Service Animals”

Agenda!❖  Primer for ADA & Section 504

❖  Direct Threat Policies

❖  2011 Revisions in Federal Anti-Discrimination Laws

❖  Direct Threat Definition

❖  Case Study: Princeton University

❖  Ten Take Aways

❖  Emotional Support Animals

❖  Supporting Research

❖  Fair Housing Act

❖  Service Animals v. ESA

❖  Process for Requesting ESA

❖  Behavioral Expectations

❖  Disciplinary Process

Section 504!

•  Section 504 of the Rehabilitation Act of 1973 governs all institutions that receive federal financial assistance, which is nearly every college and university in ACSD.

•  Violations can potentially result in loss of a institutional's federal funding.

•  (29 U.S.C. § 794/34 C.F.R. Part 104)

ADA!

•  Americans with Disabilities Act was passed 1990

•  Expands the protections available to individuals with disabilities.

•  Three Titles:

•  ADA Title I applies strictly in the employment context.

•  ADA Title II governs all state funded or supported institutions.•  ADA Title III governs all private institutions.

•  Exception of private postsecondary institutions that are controlled by religious entities.

•  ADA language is used to interpret Section 504 decisions.

Office of Civil Rights!•  The U.S. Department of Education’s Office of Civil Rights (OCR) is

responsible for enforcing Section 504 of the Rehabilitation Act of 1973. 1

•  The OCR does not create law or precedent as a court decision might.

•  However, the analysis of facts, application of the relevant law, and decisions of the OCR in resolving complaints instructs institutions.

1.  W. Lewis, S. Schuster, and B. Sokolow, (2012). THE 2012 WHITEPAPER CO-PUBLISHED BY NCHERM AND NaBITA, Suicidal Students, BITs and the Direct Threat Standard,

Direct Threat Policies!

•  Suicide is the second leading cause of death among college students in the United States.1

•  We can anticipate between 1,000 and 1,100 suicides per year. 1

•  On average, directors of Counseling Centers report having a 1:1,772 counselor-to-student ratio. 2

•  A 2012 survey found that more than 30% of students over a one-year period "felt so depressed that it was difficult to function.” 3

1.  Mental Health America, http://files.cmcglobal.com/AUCCCD_Monograph_Public_2013.pdf2.  The Association for University and College Counseling Center Directors Annual Survey,

http://files.cmcglobal.com/AUCCCD_Monograph_Public_2013.pdf3.  American College Health Association, http://chronicle.com/article/Better-Ways-to-Battle-the/146861/

Direct Threat Policies!•  In February 2013, a 21 year old Honors student from Western

Michigan University was"involuntarily withdrawn" by WMU administration after he was hospitalized for suicidal tendencies.

•  The student appealed the withdrawal and was re-admitted.

•  WMU agreed to a voluntary resolution with the OCR.

•  Tragically, less than a month after WMU agreed to revise its policy, the student committed suicide. 1

1.  Who Protect the Suicidal? Allie Grasgree, InsideHigherEd, https://www.insidehighered.com/news/2014/01/02/suicide-ocr-again-tells-colleges-not-remove-self-threatening-students

2011 Revisions!

•  Remember that the ADA Title II regulates public institutions, and Title III regulates private institutions.

•  Previous to the 2011 revisions, Title II and III used different language regarding “direct threat.”

•  Title II used broader language (“harm to self or others”)•  Title III used the narrow language (“harm to others”)•  This interpretation was consistent with how “direct threat” had been

used in the EEOC and U.S. Supreme Court. 1•  The Title II regulations were revised in 2011 to leave off “harm-to-self”.

1.  National Association of College and University Attorneys, NACUANOTES, DIRECT THREAT AND CARING FOR STUDENTS AT RISK FOR SELF-HARM: WHERE WE STAND NOW, (2014), Vol 12, Num 8, Paul Lannon Jr.

2. W. Lewis, S. Schuster, and B. Sokolow, (2012). THE 2012 WHITEPAPER CO-PUBLISHED BY NCHERM AND NaBITA, Suicidal Students, BITs and the Direct Threat Standard,

Key Terms!

❖  Direct Threat in Title II & III is now defined as:

•  ”Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.”

1. 28 C.F.R. §35.104, 35.139 (Title II)2. 28 C.F.R. §36.104, 36.208 (b) (Title III)

Princeton OCR Letter!

Basic Facts:•  On February 25, 2012, a Princeton student attempted suicide by

overdosing on medication, and was taken to a nearby hospital for treatment.

•  After the student was released from the hospital, he was assessed by university counselors. Using the counselors assessment, Administration made an individualized determination to ban the student from campus.

•  The student eventually made a voluntarily withdrew from classes.

1.  Letter to Princeton University Case No. 02-12-2155

Allegations!

The student filed a compliant with the OCR, putting forth the following allegations:

• The student alleged that Princeton discriminated against him, on the basis of his disabilities, by:

1.  by denying his requests to: (a) live off-campus; (b) take a reduced class schedule; and (c) take a single semester leave of absence as accommodations

2.  banning him from the University campus, including his residential college and classes

3.  compelling him to voluntarily withdraw from the University 4.  imposing on him conditions of readmission that are more intrusive

than those applied to other students.


Facts: Allegation 2!•  After the overdose, the student spent 3 days in a local hospital.

•  Following the students release from the hospital, Princeton mandated the student meet with two of its University's Counseling and Psychological Services (CPS) staff to determine his mental health status.

•  The counseling staff determined that because of the students 1.  Lack of insight into the severity of his illness, 2.  Prior suicide attempts (or ideations) (at-least 4), 3.  Failure to comply with treatment, 4.  Lack of family support5.  Continued abuse of drugs,

•  The counseling staff did not clear the student to return.


Facts: Allegation 2!The Dean of Students stated that the student was not cleared because:

1.  of the lethality of the incident; 2.  the complainant's risk to himself; 3.  the complainant's engagement with that risk; 4.  the complainant's lack of engagement with treatment; and 5.  a general assessment of risk by professional clinicians.

•  It was found that the student remained a safety threat to himself because in this instance, the CPS evaluation indicated that the complainant still posed an active safety risk; the complainant had a pattern of suicidal behavior; and he was unwilling to engage in appropriate treatment.


Princeton Policy!

“1.1.7 Circumstances Affecting Health or Safety: In circumstances seriously affecting the health or well-being of any person, or where physical safety is seriously threatened, or where the ability of the University to carry out its essential operations is seriously threatened or impaired, the president or his or her representative, authorized by him or her, may summarily suspend, dismiss, or bar any person from the University. In all such cases, actions taken will be reviewed promptly, typically within one week, by the appropriate University authority.” 1

“When a student has been hospitalized for any reason, he or she may return to campus only after a consultation with University Health Services or CPS to ensure that the medical or mental health problem is being well-managed.”2

1.  University Wide Regulation (http://www.princeton.edu/pub/rrr/part1/)2.  Counseling FAQ (http://www.princeton.edu/odus/services/well-being/FAQs_Dec_2014.pdf)

OCR Conclusion: Allegation 2!

The OCR cleared Princeton of any discrimination:

The “OCR determined that the University proffered legitimate, non- discriminatory reasons for banning the complainant from campus on or about February 29, 2012; namely, concerns about the complainant's health, well-being, and safety. OCR determined that the proffered reasons were not pre-textual, as the University made an individualized determination regarding the complainant in accordance with its policies.”


Facts: Allegation 3!The student alleged that Princeton discriminated against him by compelling him to voluntarily withdraw from the University.

•  The student stated that he was he encouraged to voluntary withdrawal, with administrators stating it was unlikely that he could make up his classwork.

•  The student asserted that the Vice President stated that if he did not voluntarily withdraw, he would be involuntarily withdrawn from Princeton. If he was involuntarily withdrawn, he would lose his tuition and risk his academic standing.


Princeton Policy!

“Requiring a student to withdraw is exceedingly rare and only happens when the dean of undergraduate students is persuaded that the student’s safety or the safety of others is at extraordinarily high risk, and no reasonable modifications or accommodations while the student is in residence can adequately reduce that risk.” 1

“if a student has exhibited "life threatening behavior," the University may require an involuntary withdrawal if he/she refuses to withdraw voluntarily. OCR determined that these policies apply to any student, not solely students with disabilities.” 2

1.  Counseling FAQ (http://www.princeton.edu/odus/services/well-being/FAQs_Dec_2014.pdf)2.  Letter to Princeton University Case No. 02-12-2155



The “OCR determined that the University proffered legitimate, non-discriminatory reasons for suggesting that the complainant voluntarily withdraw from the University after his attempted suicide; namely, concerns about the complainant's health, well- being, and safety. OCR determined that the University's proffered reasons were not pre-textual because the University made an individualized determination regarding the complainant pursuant to its policies. Additionally, OCR determined that the University considered the information provided by the complainant's treating medical providers, and provided him with a right to appeal.


Facts: Allegation 4!The student alleged that Princeton discriminated against him by imposing on him conditions of readmission that were more onerous and intrusive than those applied to other students.

•  “in order to return from his voluntary withdrawal, he had to complete a treatment provider form that was extremely detailed and overly broad.

•  The complainant also stated that the CPS had to independently assess him before he could return. The complainant stated that he intended to provide his own assessments from two private providers, and asserted that requiring an additional assessment by the University was unnecessary.”


Facts: Allegation 4!

The Director of Student Life outlined the following re-admission conditions:

1.  following the University's treatment recommendations;2.  demonstrating that the complainant had increased ability to

handle safely the stresses that arise from studying at the University, including evidence of sustained stability

3.  undergoing a readmission evaluation at the CPS; and4.  agreeing to any recommendations for ongoing treatment after

readmission.


Princeton Policy!

“In some circumstances, such as when a student’s withdrawal was precipitated or accompanied by a mental health condition that significantly impacted the student’s well-being, a DSL or dean will require the student to meet with a CPS counselor as part of the readmission process.

“The input of an off-campus treatment provider is a very important piece of the safety assessment, but it is not the only factor. University professionals typically have a fuller appreciation for the academic requirements the student must fulfill and the residential environment in which the student lives, which may impact the student’s ability to safely resume active student status.”

1.  Counseling FAQ (http://www.princeton.edu/odus/services/well-being/FAQs_Dec_2014.pdf)



The “OCR determined that the University proffered a legitimate, non-discriminatory reason for the conditions it imposed upon the complainant for readmission; namely, it wanted to ensure that the complainant could manage his behavior and symptoms, such that he would not be a risk to himself. OCR determined that the proffered reason was not pre-textual, as the University imposed the conditions only after a personalized assessment of what would be necessary for the complainant to demonstrate that he would not be a risk to himself upon his return. OCR's regulations do not prohibit the University from establishing conditions of readmission for students who have withdrawn from the University for psychological reasons.


Ten Take Aways!

1.  Have your policies written, published, and follow them.2.  In “exceptional circumstances, when safety is an immediate

concern”, a college can temporarily bar a student from campus. 23.  Attempt to resolve situations through voluntary withdrawals.

Show long term graduation plans and bring parents into the situation (FERPA/HIPPA).

4.  Always provide notice, procedural due process, an appeal process, and a grievance process.

5.  Follow an Individualized assessment (Case-by-case, recognizing all possible evidence, any possible medical advice).

1.  National Association of College and University Attorneys, NACUANOTES, DIRECT THREAT AND CARING FOR STUDENTS AT RISK FOR SELF-HARM: WHERE WE STAND NOW, (2014), Vol 12, Num 8, Paul Lannon Jr

2.  National Association of College and University Attorneys, THE GENERAL COUNSEL AND STUDENT SAFETY, P. McDonough, H. Morris, and S. Suryanarayan. (1/12/13)

Ten Take Aways!6. When appropriate, request a students medical records in order to

determine if they pose a direct threat to themselves or others. Use observable measures (not speculation, assumptions, or stereotypes). 7. Do not make “Direct Threat” judgment alone. Always work in teams. 8.Be careful when addressing a disability issue with disciplinary process.

Make sure it is a legitimate disciplinary issue (e.g., disturbing the educational environment).9. Use behavioral contracts, when appropriate. “The conditions should be

protective, not punitive, in nature and should address behavior rather than any underlying conditions.” 110. Create reasonable standards for re-admittance, that are

individualized (e.g., examinations by school-counselors, release of relevant medical records, compliance with treatment plans).

1.  National Association of College and University Attorneys, NACUA NOTES, DIRECT THREAT AND CARING FOR STUDENTS AT RISK FOR SELF-HARM: WHERE WE STAND NOW, (2014), Vol 12, Num 8, Paul Lannon Jr

2.  National Association of College and University Attorneys, The General Counsel and Student Safety, P. McDonough, H. Morris, and S. Suryanarayan. (1/12/13)

Emotional Support Animals on college campuses

Emotional Support Animals!

Animal Assisted Therapy in Counseling

Dr. Cynthia Chandler

•  A study in 2000 found that positive human-animal interactions resulted in increases in endorphins, oxytocin, and dopamine. While simultaneous decreasing cortisol, a stress hormone (Odendaal, 2000).

•  Oxytocin is a hormone released by the pituitary gland. It acts as both a hormone and as a brain neurotransmitter.

•  Most importantly, it is released when people make social connections and its linked to positive feelings.

•  When humans have been given small amounts of oxytocin, the results were increased social interactions, increased ability to interpret social cues, decreased anxiety, increased trust in other individuals, increased sense of well being, decreased stress hormones, and decreased sensitivity to pain (Chandler, 2012).

•  In humans, oxytocin deficits are associated with people suffering from depression and anxiety (Olmert, 2009).

•  Positive results have been duplicated in multiple studies (Barker et al., 2010; Cole et al., 2007; Wu et al., 2002; Kaminski et al., 2002; Sobo et al., 2006; Barker & Dawson, 1998; Hansen et al., 1999; Tsai et al., 2010; Nagasawa et al., 2009)

Services Animals vs. ESA!Service Animal

•  Section 504 does not specifically define “service animal.” But the OCR has adopted the ADA definition.

•  Service Dog Defined: A dog that is individually trained to do work or perform tasks for a person with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The dog must be harnessed, leashed, or tethered, unless these devices interfere with the animal’s work and the dog can accompany the student in all areas of campus.

•  When it is not obvious what service an animal provides, only limited questions are allowed: 1.  is the dog a service animal required because of a disability, and2.  what work or task has the dog been trained to perform.

•  Staff CANNOT ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.

•  A person with a disability cannot be asked to remove his service animal from the premises unless: 1. the dog is out of control and the handler does not take effective action to control it or 2. the dog is not housebroken.

1.  http://www.ada.gov/service_animals_2010.htm2.  http://counsel.cua.edu/fedlaw/nacuanoteserviceanimalsupdate.cfm

Fair Housing Act!

•  Congress passed the Fair Housing Act as a part of the Civil Rights Act of 1968

•  The Fair Housing Amendments Act (“FHA”) was passed in 1988, which expanded protections for individuals with disabilities.

•  Housing and Urban Development (HUD) is responsible for administration of the FHA. While the Department of Justice is charged with enforcing the FHA.

•  The FHA applies to “dwellings”, defined as “any building, structure, or portion thereof which occupied as, or designed or intended for occupancy as, a residence by one or more families.”

•  In United States v. University of Nebraska at Kearney (No. 07-10-0930-8), a Missouri District Court ruled that a college residence hall is classified as a “dwelling” under the FHA.

•  The Fair Housing Act has a broad definition of eligible animals that can be requested as reasonable accommodations. This definition includes service animals as well as untrained emotional support or therapy animals (not limited to dogs).

1.  Huss, J. (2012). Canines on campus: Companion animals at post-secondary educational institutions. Missouri Law Review. Vol. 77, Iss. 2

Services Animals vs. ESA!Emotional Support Animals

• Assistance Animals Requirements: Under the FHA, a person may keep an assistance animal in his or her dwelling unit as a reasonable accommodation if:

1. the person has a disability;2. the animal is necessary to afford the person with a disability an equal opportunity to use and

enjoy a dwelling;3. there is an identifiable relationship or nexus between the disability and the assistance the

animal provides.

•  The FHA does not limit ESA’s to any species, size, age, or breed.

• An emotional support animal can be denied or removed from the premises if: 1. the animals poses a direct threat to the health and safety of others; 2. would cause substantial physical damage to the property of others;3. would pose an undue financial and administrative burden; or 4. would fundamentally alter the nature of the provider’s operations.

1.  Department of Housing and Urban Development, Final Rule on Pet Ownership for the Elderly and Persons with Disabilities, 73 Fed. Reg. 63835 (October 27, 2008).

2.  National Association of College and University Attorneys, NACUA NOTES, Update on Accommodating Service and Assistance Animals on Campus (2012), Vol 10, Num 6, Josh Dermott, Esq

3.  HUD Handbook, Supra Note 78, §3-29 (B), at 3-73

Process for ESA!1.  According to the FHA standards, the student must first qualify as an individual with a disability.

•  Meet with the student to go over functional impact of the disability and the requested accommodations.

•  Request appropriate medical documentation (e.g., counselor, psychologist, or psychiatrist). 1

•  I contact the medical professional to ask clarifying questions and determine if a nexus exists.

2.  If a student qualifies for an ESA, I contact the Director of Residence Life.

•  We start the process of checking with roommates to determine if any conflicts, phobias, or allergies are present.

•  If students need to be moved, we make a reasonable and individualized judgment of who needs to be moved and determine an appropriate time line.

•  We inform Safety & Security and Residence Life staff of a new ESA.

3.  I meet with the student to go over the ESA policy and finalize any paperwork.

1.  HUD Handbook, Supra Note 78, §3-29 (B), at 3-73

Behavioral Expectations!

•  Compliance with any local laws pertaining to animal licensing, vaccination, owner identification, and leash ordinances;

•  Keeping the animal under control and taking effective action when it is out of control; and

•  Feeding and walking the animal, and disposing of its waste.

•  The student is solely responsible for any harm caused by the animal to other students, faculty, staff, or campus visitors.

•  The student must ensure that the animal relieves itself in appropriate areas, specified by the Office for Disability Services, and the waste is properly discarded of in garbage receptacles (using bags).

•  The student must not take the animal in any buildings other than the specific residence hall and commons area.

•  The animal must disrupt the educational environment by engaging in behaviors or noises that are disruptive to others including but not limited to: excessive barking, excessive whining, excessive growling, excessive grooming, excessive sniffing people, or intrusion into the personal belonging of others.

Disciplinary Process!

1.  Reasonable Person Standard

2.  Keep open communication with relevant departments.

3.  Document any behavioral or Code of Conduct violations.

4.  Keep ongoing communication with student regarding expectations and violations (Include Parents if FERPA on file).

5.  Apply equal treatment for escalation of judicial action.

6.  Give notice and procedural due process.

Best Practice Policy!

http://oregonstate.edu/accessibility/serviceanimalpolicy

Questions?

[email protected]

hot topics in disability...

Documents