The ADA Amendments Act and Post-Secondary Education

1. The ADA Amendments Act and Post-Secondary Education Presented by L. Scott Lissner Friday, April 15, 2011

2. POWERPOINT PRESENTATIONSCAN BE DANGEROUS NASA's Columbia Accident Investigation Board identified simplistic thinking from an over-reliance on PowerPoint presentations as a contributing factor in the Columbia shuttle disaster. (New York Times Magazine 12/14/2003)

3. Provide equally effective access to programs, benefits and services for qualified individuals with disabilities in the most integrated manner possible Section 504 of the Rehabilitation Act 34 CFR 104 & Title II of the Americans With Disabilities Act 28 CFR 35

4. WHAT IS COVERED? • Programs, Benefits & Services • Communications • Facilities (June 1977/January 1991/March 2012) PUT ANOTHER WAY • Employment • Faculty, Staff, Work Study, Teaching Assistants, Adjuncts... • Education • Matriculated, Non-matriculated, Distance, Practica, … • Public events • Athletics, Lectures, Concerts, Job Fairs, Conferences, …

5. Keeping up with What’s New • ADA As Amended • New Regulations • Title II • Title III • New Design Standards • Emerging E&IT Standards • Kindle • Joint Letter • Penn State • NPRM for Web Access • AIM Commission • 21st Century Communications and Video Accessibility Act

7. ADA AMENDMENTS ACT • September 2008 signed by Pres. Bush • January 2009 became law • October 2009 EEOC draft regulations • March, 2011, final regulations from the EEOC

8. DEFINTITION OF DISABILITY • A physical or mental impairment that substantially limits a major life activity • A record of such an impairment • Being regarded as having such an impairment

9. Rules on Applying the Definition Have Changed • An impairment need not prevent, or significantly or severely restrict, performance of a major life activity to be “substantially limiting.” • Disability “shall be construed in favor of broad coverage” • An individual’s ability to perform a major life activity is compared to “most people in the general population,” often using a common-sense analysis without scientific or medical evidence. • Major life activities clarified and expanded

10. What is Substantial? • The definition of disability should be construed broadly favoring expansive coverage • Not Toyota’s “prevents or severely restricts” • Not limited to activities “of central importance to daily life” (activities of daily living) used in Toyota • Excludes ameliorative impact of mitigating measures in determining coverage • Episodic conditions or those in remission are based on impact during active or acute phase

11. Limited in What Way?Condition Manner Duration • Relevant inquiry is how a major life activity is substantially limited, not on what an individual can do in spite of an impairment • May consider: • effort or length of time required to perform major life activity

12. total amount of time major life activity may be performed • the way an impairment affects the operation of a major bodily function • The comparison of an individual's limitation to the ability of most people in the general population often may be made using a commonsense standard, without resorting to scientific or medical evidence.

13. MAJOR LIFE ACTIVITIES • Includes but not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

14. Immune Respiratory Circulatory Endocrine Digestive Reproductive Neurological Brain Normal Cell Growth Bowel Bladder “Major Life Activities” also include the operation of major bodily functions including but not limited to :

15. Major Life Activities (EEOC Regulatons) • Include but are not limited to caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, sitting, reaching, interacting with others, and working

17. New Title II & III Regulations Cave Idus Martias • Service Animals • Documention • Effective Communications • Remote Services • Readers • Mobility Devices • Segways, Golf Carts & More • Housing • New Category for Residence Halls Ticketing • Stage & Podium Access • Standards for Design

18. The Higher Education Opportunity Act • Commission on Alternative Media • Funding for ID demonstration projects • Data Collection in IPEDS ? • Demonstration Grants ? EEOC is final ADA AA Definition of Disability • Regulatory Definition of Disability Office of Federal Contracts Compliance Programs • Strengthening Affirmative Action

19. DOCUMENTATION Title III Section 36.309 (b)(1)

20. WHAT DOES JUSTICE SAY ABOUT DOCUMENTATION? • Based on DOJ’s enforcement experience, research, comments • Addresses concerns about sometimes inappropriate and burdensome requests for documentation about existence of disability and need for accommodations • Note: title III preamble says same principles apply to title II entities

21. Examples of documentation that should generally be accepted • Recommendations of qualified professionals familiar with the individual • Results of professional evaluation • History of diagnosis • Observations by educators • Past use of accommodations. • Generally, a testing entity should accept, without further inquiry, documentation • provided by a qualified professional who has made an individualized assessment of the applicant • that supports the need for the modification

22. BASIC PROVISIONS REMAIN • Specific ADA provision applies to private entities that offer exams or courses related to applications, licensing, certification, or credentialing. • Exams or courses must be given in a place and manner accessible to persons with disabilities, or alternative accessible arrangements provided. • Purpose: to prevent exclusion from educational, professional, or trade opportunities because of inaccessible exams or courses.

23. Give considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received in similar testing situations including those provided in response to an Individualized Education Program or Section 504 Plan. ICD-9 569.42

24. Request for documentation should be narrowly tailored to ascertain the individual's need for the requested modification or auxiliary aid. Generally, a testing entity should accept without further inquiry documentation provided by a qualified professional who has made an individualized assessment of the applicant. Appropriate documentation may include a letter from a qualified professional or evidence of a prior diagnosis, accommodation, or classification, such as eligibility for a special education program.

25. Focus on need for accommodation • Give weight to accommodation history • Give deference to treating professionals • Give deference to clinical and professional narrative • Title II Entities are unlikely to be held to a lesser standard

26. THE VALUE OF SELF-REPORT It is only through understanding an individual's experience in the context that we can translate diagnostic evaluations into useable information on the barriers and facilitators to access and full participation.

27. LISTEN TO THE EEOC’S FINAL REGULATONS IMPLIMENTING THE ADAAA • Tasked by Congress to Take the Lead • Stayed Close to the Statute • Congruent with DOJ Rulemaking • Employment Law has Driven Practice

28. The EEOC: Use a Common-Sense Assessment • An impairment need not substantially limit more than one major life activity • Impairments need not prevent, significantly restrict or severely restrict performance of a major life activity to be substantially limiting • An individual’s ability to perform a major life activity in a similar manner under comparable conditions as “most people in the general population” • Should not require extensive analysis • Typically using a common-sense approach without scientific or medical evidence

29. Regarded As • Broad Construction • Focus on the substantive issues of failure to accommodate or exclusion not class membership • Two elements: • Employer took employment action • Because of an individual’s actual or perceived impairment • Excludes transitory (<6 months) or minor • Not entitled to accommodations

30. Justice William J. Brennan Arline v. Nassau County, 1987 “Congress acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.”

31. MODEL FOR DECISION INPUTS

32. 21st Century Communications & Video Accessibility Act • Accessibility of advanced communications equipment and services • Requires devices capable of displaying closed captioning, to deliver available video description, and to make emergency information accessible. • Captioning of internet delivered television

33. Web Access • Leading up to the proposed rule making • Kendel complaints • Comparable time, effort and expense. • DOE and DOJ joint “Dear Colleague Letter” June 2010 • Interpret broadly • Public statements from DOJ • From “Can be an effective communication tool: in the ADA Tool Kit to: “There is no doubt that the internet sites of State and local government entities are covered by Title II of the ADA. Similarly, there is no doubt that the websites of recipients of Federal financial assistance are covered by Section 504 of the Rehabilitation Act.”

34. Web Access • Proposed rule making questions • Standard to adopt: • WCAG 2.0´s "Level AA Success Criteria“ • Section 508 • Performance standards • Barriers, Facilitators and technical assistance needed • Are there distinct or specialized features used on websites that render compliance with accessibility requirements difficult or impossible? • If so, viable alternatives?

35. Advance Notices of Proposed Rulemaking published July 26 (http://www.ada.gov/anprm2010.htm) • Accessibility of web information and services • Movie captioning and video description • Next generation 9-1-1 • Equipment and furniture

36. “Qualified reader” and “qualified interpreter” • “Qualified reader” defined: • One who reads effectively, accurately, impartially • One who can use necessary vocabulary • “Qualified interpreter” modified • Includes sign language, oral, and cued speech interpreters • Oral and cued speech interpreter defined

37. VIDEO REMOTE

38. …Video remote interpreting DOJ sets performance standards • Quality of video and audio • High quality, clear, real-time, full-motion • Dedicated high-speed connection • Picture: • Clear, sufficiently large, and sharply delineated • Heads, arms, fingers • Voices: clear and easily understood transmission • Quick set-up: training of users Sections 35.160(d), 36.303(f)

39. S E R V I C E ? S U P O R T ?

40. Service Animal • Definition: a dog that does work or performs tasks for the benefit of an individual with a disability (including psychiatric, cognitive, mental)

41. Examples of tasks • Assist during seizure • Retrieve medicine or other items • Help individual with dissociative identity disorder to remain grounded • Prevent/interrupt impulsive or destructive behavior • Assist with balance, stability • Provide non-violent protection or rescue work

42. Emotional support/comfort? If this is the only function, not considered a service animal

43. Can ask only two questions • Is this service animal required because of a disability? • What work or tasks is the animal trained to perform? Can’t ask about disability

44. Other issues • An entity can exclude a service animal if • it is not controlled or • it is not housebroken • Covered entity is not responsible for care or supervision of a service animal • No “service animal” license or documentation required

45. Miniature horses • Allowed if • Reasonable • Individually trained • Assessment factors • Type, size, weight • Handler’s control • Whether housebroken • Safety requirements of facility

46. Caution: other laws also apply • Fair Housing Act: Department of Housing and Urban Development • Department of Transportation (airlines, airports, bus travel) • Air Carrier Access Act • Section 504 regulations • State and local requirements

47. Other Power-Driven Mobility Device “Any mobility device powered by batteries, fuel, or other engines—whether or not designed primarily for use by individuals with mobility disabilities—that is used by individuals with mobility disabilities for the purpose of locomotion.”

48. Use of OPDMDs Covered entity must make reasonable modifications to permit individuals with mobility disabilities to use OPDMDs unless the entity can demonstrate that the class of OPDMD cannot be operated in accordance with legitimate safety requirementsadopted by the entity.

49. OPDMD Assessment Factors • The type, size, weight, dimensions, and speed of device • The facility’s volume of pedestrian traffic • The facility’s design and operational characteristics (e.g., indoors/outdoors, square footage, the density and placement of stationary devices, and the availability of storage, if requested) • Whether legitimate safety requirements can be established to permit the safe operation of OPDMD in the specific facility • Whether use creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land management laws and regulations.

50. VERIFICATION Can request a “credible assurance” that an OPDMD is required because of the person’s disability. May not ask about nature and extent of disability. Develop a policy clearly stating circumstances when use of OPDMD’s is permitted. Source: Title II: Sections 35.104, 35.137 Title III: Sections 36.104, 36.311