Developing Student Leaders in the ADA: ADA Requirements for Post-secondary Education

1. Developing Student Leaders in the ADA:ADA Requirements for Post-secondary Education Sandy Lahmann Nov. 16, 2011

2. Disclaimer • Information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA. • ADA Center authorized by NIDRR to provide information, materials, and technical assistance to individuals and entities that are covered by the ADA.

3. Regional ADA Centers www.adata.org 1-800-949-4232

4. ADA Center services • Technical assistance / ADA information • Referral and networking with other disability organizations • Training • Material dissemination • Research

5. Rocky Mtn ADA Center Newsletter Keep up to date! • Monthly e-newsletter • Hardcopy newsletter Sign up: www.adainformation.org Or sign up sheets at materials table Free!

6. Meeting the Challenge, Inc. • Operates the Rocky Mountain ADA Center project • Generates materials and products that support accessibility • Offers customized consulting services • Provides training on various disability rights laws

7. MTC Consulting Services Providing customized solutions for: • Title II Self Evaluations and Transition Plans • Title II Facility and Program Accessibility • Commercial Facility Accessibility • School District Accessibility • Architectural Plan Review • Public Housing Accessibility • Transit System Accessibility

8. ADA titles • Title I – Employment • Title II – State and local government • Title III – Private businesses (aka public accommodations) • Title IV – Telecommunications • Title V – Miscellaneous

9. Exclusions • Religious organizations (All of the activities of a religious entity, whether religious or secular, with the exception of employment.) • Native American tribal entities • Private membership clubs

10. Postsecondary education is where? • Title II – Public, state funded schools such as vocational schools, community colleges, and state colleges and universities • Title III – Private trade schools, colleges and universities • Not covered by the ADA- private postsecondary institutions run by religious entities.

11. Other applicable laws • Any postsecondary institution receiving federal funding must comply with Section 504 and Section 508 of the Rehabilitation Act of 1973. • The provisions of Section 504 are very similar to the provisions of the ADA • Section 508 covers web accessibility • Local building codes require accessibility features for new construction and alterations.

12. Revised ADA Regulations Implementing Title II and III • Published: Federal Register, September 15, 2010 • Took effect on March 15, 2011 • Title III - codifies the Department of Justice’s long standing policies in relation to examinations and courses • Use for Title II as well • Changes noted with asterisk * in this presentation

13. Each part of the ADA must be applied on an individualized, fact-specific, case-by-case basis.

14. General ADA requirements • Provide equal opportunity (not equal result/achievement) • Not deny participation • Not apply surcharges • Strive for integrated vs. separate programs • Make reasonable modifications in policies, practices and procedures to permit participation • Not make unnecessary inquiries.

15. What does the ADA say about postsecondary education institutions??

16. Postsecondary educational institutions must offer courses and examinations in a place and manner accessible to individuals with disabilities. Or • Offer alternative accessible arrangements for such individuals.

17. Pre-admission Institutions of postsecondary education: • Are not permitted to make “pre-admission inquiries” about an applicant’s disability. Students are not required to disclose. However, if a student requires accommodations or other services, they will need to disclose. • May not deny an applicant admission solely based on disability • May require an applicant to meet essential technical or academic standards applied to all students for admission.

18. Pre-admission testing • Administer examinations so that results accurately reflect individual’s aptitude or achievement level, not any impairment • As such, provide accommodations in standardized testing conditions or entrance exams that are necessary as long as the changes do not fundamentally alter the examination or create undue financial or administrative burdens. • Documentation of disability may be required to receive such accommodations.

19. Pre-admission testing Examples of possible accommodations: • Braille, electronic format, or large print • Use of sign language interpreter or assistive listening system for spoken directions • Extended testing time • More frequent breaks • Private room free of distractions • Small group setting • Preferential seating • Fewer items on each page • Tape recorded responses • Responses on the test booklet • Testing over several sessions

20. Post-admission • Accommodations • Modifications • Academic adjustments • Auxiliary aids and services These are different terms that mean the same thing: any change or modification to academic requirements that are necessary to ensure that the requirements do not discriminate on the basis of disability.

21. Accommodations Examples of possible student accommodations: • Braille, electronic format, audio recordings, large print, or qualified readers • Equip some computers with screen readers, voice recognition or other adaptive software or hardware. • Use of sign language interpreter or assistive listening system in class, captioning • Changes in length of time permitted to complete course requirements • Reduced course load • Extended time on tests • Note takers or allow recording of lectures

22. More accommodations • Early enrollment to allow time to arrange accommodations • Clearly communicate course requirements, assignments, due dates and grading criteria orally and in a written format. • Written outlines of class lectures • Videophone in dorm room • For tests: allow extra time to complete, provide distraction free testing area, provide alternative formats such as oral • Accessible websites

23. More accommodations • Relocate class to an accessible location • Videophones (Sorenson), TTYs and relay service for telephonic communication • Priority in class registration • Physical accessibility for students with mobility disabilities • Accessible dorm room • Closer parking place • Adjusted class schedule

24. All accommodations should be individualized to the unique needs of each individual.

25. Accommodations - Exclusions Institutions of postsecondary education: • Are not required to provide accommodations which fundamentally alter the nature of the service, program or activities. • Do not need to alter or waive the essential academic requirements necessary for demonstrating mastery of program competencies. • Do not need to change the substantive content of tests or assignments. • Do not need to provide an accommodation that results in an undue financial or administrative burden.

26. Limitations (aka: Defenses) • Fundamental alteration – fundamentally alter the nature of the service, program or activities • Undue burden – significant difficulty or expense • Direct threat – significant risk of substantial harm. Cannot be based on assumptions, stereotypes or generalizations. Must be based on valid medical analyses and/or other objective evidence.

27. Conduct standards • Students with disabilities must comply with the same conduct and behavior standards as every other student.

28. Accommodations - Exclusions • Not required to provide attendants, personal devices (wheelchairs, eyeglasses, hearing aids) or personal services. If a student requires an attendant to assist with toileting, dressing, or eating, the student must provide their own attendant.

29. Accommodations • Public institutions are required to give primary consideration to the auxiliary aid or service that the student requests, but can opt to provide alternative aids or services if they are effective. • The postsecondary institution is responsible for the cost of accommodations. The Division of Vocational Rehabilitation (DVR) may reimburse the cost of some accommodations. • Private institutions may be able to receive tax credits and deductions for the cost of accommodations.

30. To obtain accommodations • Postsecondary institutions are not responsible for identifying students who need an accommodation and are not responsible for offering an accommodation. • To obtain an accommodation, a student must request an accommodation, provide supporting documentation, and work with the institution to identify appropriate accommodations. • Accommodation requests generally should go through the institution’s disability resource office.

31. Requesting accommodations • Accommodations should be requested prior to beginning a course. • A student should not wait until they have received a poor grade, then request an accommodation and expect the grade to be changed or expect to retake the course.

32. Timely manner* • Entities must respond to a request for an accommodation in a timely manner. • If entities fail to act quickly and seek unnecessary documentation it may result in such an extended delay that it is a denial of equal opportunity

33. Documentation • *Postsecondary institutions may set their own requirements for documentation so long as they are “reasonable and limited to the need for the modification, accommodation, or auxiliary aid or service requested”.

34. Documentation • *When testing entities receive documentation provided by a qualified professional who has made an individualized assessment of an applicant that supports the need for the modification, accommodation, or aid requested, they shall generally accept such documentation and provide the accommodation.

35. *Qualified professional • Licensed or otherwise credentialed • Possess expertise in the disability for which the modification or accommodation is being sought • Could be a doctor, psychologist, nurse, physical therapist, occupational therapist, speech therapist, vocational rehabilitation specialist, school counselor, or licensed mental health professional.

36. *Individualized assessment • Qualified professional has made an individualized assessment • Individually and personally evaluated the individual rather than simply reviewed documents • Personal familiarity with the individual outweighs no personal knowledge at all

37. Documentation • *Post-secondary entities must give considerable weight to the documentation of past modifications received in similar testing situations as well as modifications provided in response to an IEP or Section 504 Plan.

38. Documentation • Postsecondary institutions are not responsible for conducting or paying for testing or evaluations to document a disability or a student’s need for an accommodation. • The student must provide appropriate documentation

39. Current practice in the field • A student’s annual IEP has often not been considered to be sufficient for documentation. With the new regulations this should be reconsidered. • Assessment done as part of the triennial eligibility staffing has generally been considered adequate documentation, but the assessment must have been done within past three years. BUT . . .

40. RtI in K-12 • Response to Intervention • Full scale IQ testing not required to determine the presence of a learning disability • The discrepancy model is gone • ‘Body of evidence’ should include standardized academic testing • IDEA states that K-12 schools are under no obligation to conduct testing for purposes of eligibility for services in another system.

41. The problem: • Colleges still frequently ask for IQ testing for documentation. • We need better communication between K-12 and postsecondary regarding documentation.

42. The Division of Vocational Rehabilitation (DVR) may be able to assist in obtaining appropriate documentation.

43. Accommodations not working? • A postsecondary institution is not responsible for monitoring the effectiveness of accommodations. • If an accommodation is not working, it is the responsibility of the student to contact their disability student services office and request changes.

44. All programs covered • Academics • Student housing (*New accessibility standards for student housing) • Athletics • Extracurricular activities and clubs • Transportation • All activities that occur off campus that are sponsored by the college

45. Physical accessibility • Title II • Accessibility in all new construction and alterations • Existing facilities (1992): programs, when viewed in their entirety, must be accessible, not every facility • Not required to take any action that would threaten or destroy historic significance • Title III • Accessibility in all new construction and alterations • Readily achievable barrier removal in existing facilities

46. Service animals • *As of March 15, 2011: • Any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability • In limited circumstances, a miniature horse can be used as a service animal • Other species other than dogs and miniature horses do not qualify as service animals • Work or tasks performed by service animal must be directly related to the handler’s disability

47. Service animals • Because service animals must “do work or perform tasks” emotional support and comfort animals are not included in the definition of “service animal” • Certification, identification papers, or vest is not required • Animal must be under handler’s control • Must use harness, leash or tether unless disability prevents or unless it interferes with task being performed • Care and supervision is the responsibility of the handler • Animal must be housebroken • Cannot deny service animal because of allergies or fears

48. Service animals • Two questions are permitted only if not obvious: • Is this animal required because of a disability? • What work or task has this animal been trained to perform? • Don’t inquire about the nature or extent of the handler’s disability • Service animal is not a pet • ADA does not include service animals-in-training. State law may.

49. Website Accessibility • The ADA requires all programs of public entities to be accessible, including websites • The ADA does not currently provide standards • Advanced Notice of Proposed Rulemaking • http://www.ada.gov/anprm2010/web%20anprm_2010.htm • Section 508 or W3C are best practice

50. Harassment The ADA makes it unlawful to harass people with disabilities in covered entities.