the americans with disabilities act & section 504 of the rehabilitation act: obligations for title...

HOGAN MARREN, LTD.

HOGAN MARREN, LTD.The Americans with Disabilities Act & Section 504 of the Rehabilitation Act:

Obligations for Title IV Schools

Dennis CarielloCo-Chairman, Education PracticePrivate Colleges and Career Schools Conference

1HOGAN MARREN, LTDDisclaimersThe contents of these materials and the accompanying discussion are for information purposes only and do not constitute legal or regulatory advice.

No party should act or refrain from acting on the basis of any statements made today without seeking individualized, professional counsel as appropriate.

These materials and the accompanying discussion are primarily focused on certain aspects of Title IV requirements and are not intended to be comprehensive of all Title IV requirements applicable to all educational agencies and institutions.

2HOGAN MARREN, LTDIntroductionDennis Cariello: Shareholder and Co-Practice Group Leader in the Education Group. Former Deputy General Counsel for Postsecondary Education in US Department of Education (DoED)Former Deputy Assistant Secretary for Enforcement in the DoEDs Office for Civil Rights (OCR)Formerly the Chair of Regulatory Strategies in Education Group of AmLaw 100 Law Firm.Extensive knowledge of Title IV of the Higher Education Act and Civil Rights Laws. Handles transactional, regulatory, government relations, civil rights privacy and litigation matters.Education Group features Charlie Rose, former General Counsel of DoED, Pat Edelson, former program review specialist

3HOGAN MARREN, LTDAgendaMajor Federal Laws on Disability Discrimination for Title IV SchoolsWhat is a Disability?Who is Protected?Accommodating Students with DisabilitiesReasons not to Accommodate Students with Disabilities

4HOGAN MARREN, LTDMajor Federal Laws on Disability Discrimination for Title IV SchoolsAmericans with Disabilities Act (42 U.S.C. 12101 et seq.)1. Title I ("Employment") applies to covered entities including employers with 15 or more employees. (42 U.S.C. 12111; 29 C.F.R. 1601.2.)2. Title III ("Public Accommodations") applies to public and private universities as entities providing public accommodations. (42 U.S.C. 12182; 28 C.F.R. 36.102.)(a) "No individual shall be discriminated against on the basis of a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . ." (42 U.S.C. 12182(a); 28 C.F.R. 36.201(a).)

5HOGAN MARREN, LTDSection 504 of the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.1. Prohibits "any program or activity receiving federal financial assistance" from discriminating against an individual because of his or her disability. (29 U.S.C 794(a).)(a) "Program or activity" includes "all of the operations" of a "college, university, or other postsecondary institution, or a public system of higher education." (29 U.S.C 794(b)(2).)(b) A "recipient" of federal financial assistance includes any organization or person "to which Federal financial assistance is extended directly or through another recipient." (34 C.F.R 104.3(f).)

Major Federal Laws on Disability Discrimination for Title IV Schools

6HOGAN MARREN, LTDSection 504 (continued)2. Covered schools having more than 15 employees must adopt "grievance procedures that incorporate appropriate due process standards and that provide prompt and equitable resolution of complaints alleging any action prohibited by [Section 504]. (34 C.F.R. 104.7(b).)3. Covered schools must also have a "504 Coordinator to coordinate the school's "efforts to comply with [Section 504 and the accompanying regulations.]" (34 C.F.R. 104.7(a).)

OCR is responsible for enforcing Section 504 and the ADA.

Major Federal Laws on Disability Discrimination for Title IV Schools

7HOGAN MARREN, LTDDefinition: "(1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment." 42 U.S.C. 12102(1).

Physical impairment: any "physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more bodily systems. 29 C.F.R. 1630.2(h)(1).

Mental impairment" includes "any mental or psychological disorder." 29 C.F.R. 1630.2(h)(2).

What is a Disability?

8HOGAN MARREN, LTDImpairment does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within 'normal' range and are not the result of a physiological disorder" or "characteristic predisposition to disease." "[A]n impairment also does not include common personality traits such as poor judgment or a quick temper, when they are not symptoms of a mental or psychological disorder. (Section 1630.2(h), 29 C.F.R. 1630.)

ADA Amendments Act of 2008: Definition of disability shall be construed in favor of broad coverage to the maximum extent permitted by the terms of this Act. 42 U.S.C. 12102(4)(A).


9HOGAN MARREN, LTD"Substantially Limits"Individualized assessment (29 C.F.R. 1630.2(j)(1)(iv).)An impairment that substantially limits one major life activity does not have to also limit other major life activities.

"Major Life Activities"Nonexclusive list includes most things you do every day (caring for oneself; seeing; hearing; eating; sleeping; walking; thinking; and working." 42 U.S.C. 12102(2); 29 C.F.R. 1630.2(h)(2)(i).

May be episodic or in remission (42 U.S.C. 12102(4)(D).) EEOC: "a person with posttraumatic stress disorder who experiences intermittent flashbacks to traumatic events is substantially limited in brain function and thinking."What is a Disability?

10HOGAN MARREN, LTDMitigating MeasuresThe "determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures." 42 U.S.C. 12102(4)(E)(i).

Mitigating measures include "medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies." 42 U.S.C. 12102(4)(E)(i)(I); 29 C.F.R. 1630.2(h)(5)(i).Exception: ordinary eyeglasses or contact lenses


11HOGAN MARREN, LTD"Regarded As" Having a DisabilityA person is "regarded as" having a disability if the individual "establishes that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." 42 U.S.C. 12102(3)(A).Student believed to have AIDS because spouse has AIDSAn entity need not provide a reasonable modification of policies, practices, or procedures to individuals who meet the definition of disability solely because they are regarded as having a physical or mental impairment. Such individuals would be entitled to protection from discrimination, including but not limited to protection from retaliation and harassment on the basis of disability.


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What is a Disability?Physical or Mental Impairment Physiological disorder, contagious disease, cosmetic disfigurement or anatomical loss in one or more system:

Neurological Musculoskeletal Respiratory Cardiovascular Reproductive Digestive Bowel Genito-urinary Hemic and Lymphatic Skin Endocrine Immune System Normal Cell Growth Bladder Reproductive FunctionsMental or psychological disorder including:

Mental retardationOrganic brain syndromeEmotional or mental illnessSpecific learning disabilities Substance Abuse (recovering alcoholic or addict)*

Major Life Activities Self-careManual tasksWalkingSeeingHearingSpeakingBreathingSittingStandingReachingThinkingConcentrating Reading Communicating Interacting with othersLearningWorkingEating SleepingLifting Bending

13HOGAN MARREN, LTD29 C.F.R. 1630.2(j)(4)(iii): [S]omeone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in the major life activity of learning because of the additional time or effort he or she must spend to read, write, or learn compared to most people in the general population.

29 C.F.R. 1630.2(j)(1)(v) Appendix A: Individuals diagnosed with . . . learning disabilities will typically be substantially limited in performing activities such as learning, reading, and thinking when compared to most people in the general population, particularly when the ameliorative effects of mitigating measures, including therapies, learned behavioral or adaptive neurological modifications . . . studying longer, or receiving more time to take a test, are disregarded as required under the ADA Amendments Act. What is a Disability?Record of Impairment Regarded Impairment The individual has: A history of impairmentA record of having been misclassified as having an impairment The individual has: An impairment not limiting a major life activity, but treated as disabled by the covered entityNo impairment, but treated as disabled by the covered entity

14HOGAN MARREN, LTDTitle I of the ADA: "[A]n individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. 12111(8).

Title III of the ADA: Students with disabilities have the right to the same "goods, services, facilities, privileges, advantages, and accommodations" as nondisabled students, in the "most integrated setting appropriate to [their] needs." 42 U.S.C. 12182(b)(1)(B).A student must meet the "academic and technical standards" required for admission or participation with or without reasonable accommodation. 42 U.S.C. 12131(2); 28 C.F.R. 35.104.

Section 504: An "individual with a disability" as defined under the ADA is protected. 29 U.S.C. 705(20)(B).

Who is Protected?

15HOGAN MARREN, LTDUnder Section 504, a school must make "such modifications to its academic requirements as are necessary to ensure that such requirements to not discriminate or have the effect of discrimination on the basis of handicap." 34 C.F.R. 104.44(a).Types of modifications can include: Changes in the length of time permitted for the completion of degree requirementsSubstitution of specific coursesAdditional time to move from class to classExtended time on testsAllowing a tape recorder for lecturesPreferential seating in class

Accommodating Students with Disabilities

16HOGAN MARREN, LTDSome Basic Requirements:Schools must have clearly defined policies & proceduresSchools should implement policies consistently when handling accommodations requests and complaintsSchools must provide:notice of nondiscriminationnotice of 504/ADA Coordinatornotice of 504/ADA grievance proceduresnotice of how to obtain academic adjustments and auxiliary aids


17HOGAN MARREN, LTDAccommodations Process:If a student wants an accommodation, she has an obligation to provide notice to the institution of a qualifying disability and the need for the accommodation. Must have a documented disability and limitationsRequest must be sufficiently direct and specificProcess must spell out who decides these issues?Process should seek input from person making request and from the students medical providerPolicies should specify procedures (including for discrimination complaints)Procedures should require documentation of all decisions


18HOGAN MARREN, LTDFocus should be on whether accommodations are reasonable . . . not on whether an individual meets the definition of disability.Disability determinations should not demand an extensive analysisTypes of generally accepted documentation:Recommendations of qualified professionals familiar with the individualResults of professional evaluationHistory of diagnosisObservations by educatorsPast use of accommodations.Accommodating Students with Disabilities

19HOGAN MARREN, LTDA Note on Confidentiality . . .

A students disability is confidential information The student decides how much information to shareYou may Issue a request for accommodation without giving a students name Faculty must avoid inadvertent disclosure ADA allows a separate cause of action for breach of confidentiality


20HOGAN MARREN, LTDService Animals as AccommodationsA "service animal" is a "dog that is individually trained to do work or perform task for the benefit of an individual with a disability." 28 C.F.R. 35.104; 28 C.F.R. 36.104.Under Section 504, a school may not prohibit "dog guides" in campus buildings. 34 C.F.R. 104.44(b). Check state law it may be broaderComfort Animals


21HOGAN MARREN, LTDDiscipline and Leaves of AbsenceStudents with disabilities must comply with all "essential" academic standards and requirementsAn institution may not dismiss or sanction a student with a disability for behavior that it does not sanction when undertaken by students who are not disabled. 34 C.F.R. 104.43. Disability is pertinent to whether there are grounds to mitigate the penalty for violation of the code of conduct or engaging in an act that represents a direct threat to him/herself." A school cannot discipline a student for behavior that violates the rules of conduct if the student's inability to comply is due to the School's failure to provide reasonable accommodation. Accommodating Students with Disabilities

22HOGAN MARREN, LTDReasons for Denial:Student does not meet the definition of having a disability Student is simply not qualified even with accommodations Behavior and conduct issues: Student violates campus conduct requirementsStudent does not meet attendance requirementsStudent is disruptive interferes with educational experience of others Student is dangerous threatening to others (or self?)

Reasons for Not Providing Accommodations

23HOGAN MARREN, LTDNo accommodation required "if the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden." 42 U.S.C. 12182(b)(2)(A)(iii).

Undue burden: significant difficulty or expense. 28 C.F.R. 36.104.

Fundamental AlterationWhere the modifications in policies, practices, or procedures, including academic requirements in postsecondary education, would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations involved." 42 U.S.C. 12201(f).


24HOGAN MARREN, LTD"Academic requirements that can be demonstrated by the [school] to be essential to its program of instruction or to particular degrees need not be changed." 34 C.F.R. 104 DOJ Guidance: "modification so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered".Schools are entitled to deference when exercising professional judgment about academic requirements and fundamental alteration issues. "Essential functions" are "the fundamental job duties of the employment position the individual with a disability holds or desires." 29 C.F.R. 1630.2(n)(2).


25HOGAN MARREN, LTDDirect ThreatNot required to "permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others." 28 C.F.R. 35.139(a).

Student poses a direct threat, a significant risk of substantial harm or to the student or to others that cannot be eliminated or reduced by reasonable accommodation.

Direct threat requires a high probability of substantial harm and not just a slightly increased, speculative, or remote risk.

Consider: (1) the duration of the risk, (2) the nature and severity of risk, (3) the likelihood that the potential harm will occur, and (4) the proximity of the potential harm.

PROVIDE DUE PROCESS


26HOGAN MARREN, LTDHave procedures in place to deal with accommodation requestsHave an ADA/Section 504 CoordinatorKeep records develop a form for requestsIssues with online learning (OCR May 26th 2011 Dear Colleague Letter)Privacy in this context is important

Some Practical Considerations

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Questions

Dennis M. CarielloHogan Marren212-422-4900Email us at:[email protected]: @educounsel