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Documentation: Section 504/Titles I, II, & III 2012 AHEAD Guidance Paul D. Grossman, J.D. Adjunct Professor of Disability Law Hastings College of Law,

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Presentation on theme: "Documentation: Section 504/Titles I, II, & III 2012 AHEAD Guidance Paul D. Grossman, J.D. Adjunct Professor of Disability Law Hastings College of Law,"— Presentation transcript:

1 Documentation: Section 504/Titles I, II, & III 2012 AHEAD Guidance Paul D. Grossman, J.D. Adjunct Professor of Disability Law Hastings College of Law, U.C. Jean Ashmore Emeritus Director, Rice University Past President, AHEAD


3 Journey to the 2012 AHEAD Guidance The original Supreme Court construction of an “impairment that substantially limits a major life activity,” as in Arline, is sound and workable The Section 504/ADA definition of disability, as intended by Congress and reflected in Arline, is subsequently “twisted” by the Supreme Court 2008 -The ADAAA is enacted to “restore” the original definition 3

4 Journey to the AHEAD Guidance (cont.) 2011 - EEOC’s Title I Regulations implementing ADAAA promulgated with 9 guiding rules of construction and limited discussion of documentation 2010 - DOJ Regulations & Statutory Guidance implementing Title III concerning testing entities & licensing authorities, etc. contain extensive provisions and guidance on documenting disabilities 2011 - DOJ states Title III guidance applies to Title II 2013 - AHEAD wraps it all up with Supporting Accommodation Requests: Guidance on Documentation Practices 4

5 An Ultra-Succinct Judicial/Legislative History 5

6 1987 : School Bd. of Nassau Cty. v. Arline Repeated hospitalization for TB is sufficient to establish a “substantial impairment of a major life activity.” Discrimination against contagion is fear of disability The question of disability and qualification are distinct issues. It should not be hard to get to the second issue. 1999: Sutton Trilogy— mitigating measures count, even internalized self-implemented measures 2002:Toyota v. Williams Carpal tunnel syndrome—MLA manual skills “Substantial” is a very demanding standard Major life activities are activities of central importance to daily living. If you can do these other limitations don’t count Pre-ADAAA Supreme Court Decisions 6

7 Impact of Supreme Court Decisions Over 90% of ADA, Title I claims, failed to withstand an employer’s motion for summary judgment on the grounds that the Plaintiff was not an individual with a disability Examples of persons not found “disabled” include persons with monocular vision, deaf in one ear, missing one limb, breast cancer in remission, clinical depression, an individual with a profound intellectual disability 7

8 The ADAAA of 2008: Same Lyrics But a new Tune Back to Arline and the Intent of Congress 8

9 Can Congress Really Tell the Supreme Court How to Think? It depends Constitutional interpretation, the Supreme Court is the final word. Statutory construction, Congress can have another bite at the apple. Precedent, Title IX restoration act overruling Grove City v. Bell 9

10 Sources of the Change Prongs Matter Some Impairments Are Very Likely Disabilities Some Are Impairments Are Case by Case Some Individuals Remain Uncovered Essential Change Elements 10

11 The Root Sources Behind the Change The ADAAA (itself) and the Equal Employment Opportunity Commission’s (EEOC) Revised ADA Regulations for Title I, Implementing the ADAAA and accompanying Statutory Guidance (Published in the Federal Register on 3/25/2011) ( Don’t miss the guidance. It’s more useful than spending the night at a Holiday Inn Express. 11

12 12 Historic Constant: The Same Lyrics The three prongs of the definition of “disability” Physical or mental impairment that substantially limits a major life activity, A record of such an impairment, Or being regarded or perceived having such an impairment

13 The Prong Chosen Matters Major life activities and substantiality are pertinent only to prongs I and II—a big part of the new tune This means prong III, which is only about impairments, is the easiest to prove Prong III does not include the duty to accommodate and has a exception 13

14 How Did Congress and the EEOC Change the Tune? Regrinding the Cognitive Lenses of the Courts with Nine New Rules of Construction

15 “Substantially limits” is to be construed broadly and is not meant to be a demanding standard The impairment need not prevent or severely restrict a major life activity, but not every impairment is a disability. [Repudiation of Toyota v. Williams.] The primary object of attention is whether discrimination occurred; whether an impairment substantially limits a major life activity should not demand extensive analysis. [Think Arline.] 29 CFR §1630.2(j)(1)(i)-(iii) 15 Rules #1-#3 Defining “Substantially Limits”

16 The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. [Repudiation of the Sutton trilogy.] 29 CFR §1630.2(j)(1)(vi) 16 Rules #6 (#4 & #5 Later)

17 An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. [Think depression.] 29 CFR§1630.2(j)(1)(vii) 17 Rules #7

18 An impairment has to substantially limit only one major life activity, not more than one. [Repudiation of Toyota v. Williams.] An impairment that is temporary – e.g., one that will last or expect to last fewer than six months – [nonetheless] can be substantially limiting. [E.g. some broken legs.] 29 CFR §1630.2(j)(1)(viii)-(ix) 18 Rules #8 & #9

19 Given their inherent nature, certain types of impairments will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity. Therefore, with respect to these types of impairments, the necessary individualized assessment should be particularly simple and straightforward. 29 CFR §1630.2(j)(3)(ii) 19 Rules Lead to “Predictable Assessment” Impairments “Virtually Always” Covered

20 Deafness as it substantially limits hearing; Blindness as it substantially limits seeing; An intellectual disability (formerly termed mental retardation) as it substantially limits brain function; Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function 29 CFR §1630.2(j)(3)(iii) 20 Named Physiological Impairments with Predictable Assessment Outcomes

21 Autism as it substantially limits brain function; Cancer as it substantially limits normal cell growth; Cerebral palsy as it substantially limits brain function; Diabetes as it substantially limits endocrine function; Epilepsy as it substantially limits neurological function; Human Immunodeficiency Virus (HIV) infection as it substantially limits immune function; Multiple sclerosis & muscular dystrophy as they substantially limit neurological function 29 CFR §1630.2(j)(3)(iii) 21 More Named Physiological Impairments with Predictable Assessment Outcomes

22 Major depressive disorder, Bipolar disorder, Post-traumatic stress disorder, Obsessive compulsive disorder, and Schizophrenia [All substantially limit brain function.] 29 CFR §1630.2(j)(3)(iii) 22 And more… Named Psychological Impairments with Predictable Assessment Outcomes

23 Some Impairments Do Not Qualify as Predictably a Disability. Then the Yardstick is Condition, Manner, and Duration With regard to these impairments in particular, a “condition, manner or duration” framework can be helpful.” This is also where the comparison to “most people in the general population” is relevant “For example, one may consider the difficulty, effort, or time required to perform a major life activity; the pain experienced when performing a major life activity; or the length of time a major life activity can be performed.” 29 CFR §1630.2(j)(4)(i)-(ii) 23

24 Condition, Manner, and Duration The relevant inquiry is how a major life activity is substantially limited, not on what an individual can do in spite of an impairment. [Think Toyota] May consider: Effort or length of time required to perform major life activity The comparison of an individual's limitation to the ability of most people in the general population. 24

25 A back or leg impairment Consider the length of time she can stand, the distance she can walk, or the weight she can lift will matter Asthma Consider the length and severity of the limitation in respiratory functions and breathing compared to most people, as indicated by the effects experienced when exposed to substances such as cleaning products, perfumes, and cigarette smoke Non-chronic impairments usually of short duration, usually with little or no residual effects Learning disabilities 25 Impairments on a Spectrum (Non-predictable impairments)

26 Still a Difficult Issue: Learning Disabilities Bottom line analysis should not prevail: “An individual with a learning disability who is substantially limited in reading, learning, thinking, or concentrating compared to most people, as indicated by the speed or ease with which he can read, the time and effort required for him to learn, or the difficulty he experiences in concentrating or thinking, is an individual with a disability, even if he has achieved a high level of academic success, such as graduating from college. The determination of whether an individual has a disability does not depend on what an individual is able to do in spite of an impairment. [Emphasis added] [Think Bartlett v. NYSLE.] (Appendix Title I regulations.)” (Also see, Senate Manager’s report. 26

27 How Does an LD Individual Compare to the Most People Standard? Condition, manner, duration comparison is now to “most people in the general population,” how does this standard work for LD persons? Learning disabilities, such as dyslexia, are commonly diagnosed on the basis of “intra-individual” differences in two or more domains How does the magnitude of these differences compare to most persons in the general population? 27

28 Not Predictable, Focus on Condition, Manner and/or Duration The focus is on how a major life activity is substantially limited, and not on what outcomes an individual can achieve. [Think: Bartlett v. NYSLE] “For example, someone 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.” You do not need to do a “condition, manner, duration” analysis for everything! (This is primarily for impairments on the spectrum.) 29 CFR §1630.2(j)(4)(iii) 28

29 Transitory and Minor Impairments that are BOTH transitory and minor are excluded from coverage under the third prong. Transitory means – lasting six months or less. No such arbitrary rule exists for Prong I and II Minor means – minor! An impairment that may last for 6 months or less, but is not minor, IS covered. An impairment that is minor, but will last for more than 6 months, IS covered. 29 CFR §1630.15(f) 29

30 Some Things Are Still Not Disabilities Non-chronic impairments of short duration with little or no residual effects Impairments that are transitory (six months or less) and minor Common cold or influenza Seasonal allergies Sprained joint Minor and non-chronic gastrointestinal disorders Broken bone that is expected to heal completely Pregnancy without complications Correctable vision 30

31 Most Pertinent to Documentation: Rules 4 & 5 Rule 4. The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term "substantially limits" must be interpreted and applied to require a degree of functional limitation that is lower than the standard for "substantially limits" applied prior to the ADAAA. [Emphasis added.] 31

32 Rule # 5 – MOST pertinent to Documentation for Learning Disabilities “The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. Nothing in this paragraph is intended, however, to prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.’’ [Emphasis added.] Title I regulation Section 1630.2(j)(1)(v). 32

33 Implications for Documentation Onward to Title III (and II) Regulation: 28 C.F.R. Part 28. section 36.102 Section-by-Section Commentary: Title III Regulation 2010 Guidance and Section- by-Section Analysis for Section 36.309

34 Title III Documentation Guidance Regarding Examinations Under the definitions section of the Title III regulation 28 C.F.R. Part 28. section 36.102, Title III covers: “Private entity that offers examinations courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes.” 36.102 (a)(3) “Private entities” that offer “examinations and courses.” 34

35 This Also Applies to Title II! “While the Department considers these requirements to be sufficient to ensure that examinations and courses administered by public entities meet the section 309 requirements, the Department acknowledges that the title III regulation, because it addresses examinations in some detail, is useful as a guide for determining what constitutes discriminatory conduct by a public entity in testing situations. See 28 CFR 36.309.” Title III Regulation 2010 Guidance and Section-by-Section Analysis for Section 36.309 35

36 DOJ’s Guiding Documentation Principles “[The entity must assure that] any request for documentation, if such documentation is required, is reasonable and limited to the need for modification, accommodation, or auxiliary aid or service requested.” 28 C.F.R. Section 36.309(b)(iv) 36

37 DOJ’s Guiding Documentation Principles (cont.) “When an applicant’s documentation demonstrates a consistent history of a diagnosis of a disability is prepared by a [qualified] professional who made an individualized determination of the applicant there is little need for further inquiry … and generally testing entities should grant the requested … accommodation ….” Title III Regulation 2010 Guidance and Section-by-Section Analysis for Section 36.309 37

38 Presumption of Validity in the Work of a “Qualified Professional” “[W]hen testing entities receive documentation provided by a qualified professional has made an individualized assessment of an applicant that supports the need for … accommodation …requested, they shall generally accept such documentation and provide the accommodation.” “[I]t is critical that testing entities that review documentation … ensure that their own reviews are conducted by qualified professionals with similarly relevant expertise.” Title III Regulation 2010 Guidance and Section-by-Section Analysis for Section 36.309 38

39 Who Is a Qualified Professional Entitled to Such Deference? Must be appropriate to the impairment A podiatrist can’t assess for a learning disability Doctors, psychiatrists, psychologists Nurses, physical therapists, occupational therapists, speech therapists, vocational rehab. Specialists School counselors Licensed mental health professionals Title III Regulation 2010 Guidance and Section-by-Section Analysis for Section 36.309 Any significance to not mentioning an LD Specialist? 39

40 Requirement that the Assessment is “Individualized” Not only must it be done by a qualified professional The assessment must also reflect that “the qualified individual has individually and personally evaluated the candidate as opposed to simply considering scores from a review of documents.” Title III Regulation 2010 Guidance and Section-by-Section Analysis for Section 36.309 40

41 “Individualized” in the LD Context “This is particularly important in the learning disabilities context, where proper diagnosis requires face-to-face evaluation.” “Reports from experts who have familiarity with the candidate should take precedence over those from, for example, testing agencies, who have never personally met the candidate or conducted the … assessment.” Title III Regulation 2010 Guidance and Section-by-Section Analysis for Section 36.309 41

42 DOJ’s Examples of Information that Should be Considered from Qualified Assessor Results of psycho-educational or other professional evaluations An applicant’s history of diagnosis Participation in special education Observations by educators An applicant’s history of diagnosis An applicant’s past use of testing accommodations “If an applicant has been granted accommodations post-high school by a standardized testing agency, there is no need for reassessment for a subsequent examination.” Title III Regulation 2010 Guidance and Section-by-Section Analysis for Section 36.309 42

43 Weight Should be Accorded to Past Accommodations “[T]he entity [must assure that it] gives considerable weight to documentation of past accommodations … received in similar testing situations, as well as … accommodations … in response to an (IEP) provided under the IDEA or a section 504 (Plan)…” 36.309(b)(v) Past use of an IEP or 504 Plan “provides critical information” Title III Regulation 2010 Guidance and Section-by-Section Analysis for Section 36.309 43

44 LD but no IEP or 504 Plan? The lack of an IEP or 504 Plan should not be treated as a barrier to establishing a need for an accommodation Also relevant are A history of informal accommodations Other private school arrangements 44

45 ADHD Example “[C]onsiderable weight is warranted when a student with a Section 504 Plan in place since middle school that includes the accommodations of extra time and a quiet room is seeking the same accommodations from a testing entity…. In this example the entity should clearly grant … the accommodation.” Title III Regulation 2010 Guidance and Section-by-Section Analysis for Section 36.309 45

46 Learning Disability Evaluation Frequency Requirements? An attributed point? “One disability rights organization noted …. ‘[t]here is not scientific evidence that learning disabilities abate with time, nor that Attention Deficits abate with time ***.’ This organization noted that there is no justification for repeated subjecting people to testing regimes just to satisfy a disbelieving industry. This is particularly true for adults with, for example, learning disabilities such as dyslexia ….” Title III Regulation 2010 Guidance and Section-by-Section Analysis for Section 36.309 46

47 Prompt Appeal/Supplement Process Required of Testing Entity “[The entity shall assure that it] responds in a timely manner to requests for modifications, accommodations, or aids to ensure equal opportunity for individuals with disabilities.” 36.309(b)(vi) “Testing entities are to ensure that their … process provides applicants with a reasonable time to supplement … with additional information, if necessary, and still be able to take the test in the same testing cycle.” Title III Regulation 2010 Guidance and Section-by-Section Analysis for Section 36.309 Analogous to colleges? 47


49 The Key Perspective of the Guidance Reflected in One Question “ Would an informed and reasonable person conclude from the available evidence that a disability is likely and the requested accommodation is warranted?"

50 Highlighted Concepts  A more individualized review  A “commonsense” standard  Reviewing requests for accommodation is different than providing “treatment”  A non-burdensome process  In requesting and initiating accommodations  Evaluating and weighing what is relevant information from the new perspective created by  The ADAAA, its regulations and guidance  The new DOJ Documentation Guidance found in the Title III regulations and guidance.  Current not necessarily “recent” 50

51 What’s Wrong with a Strict Reliance on Documentation? Postsecondary institutions may request a reasonable level of documentation. However, requiring extensive medical and scientific evidence: “Perpetuates a deviance model of disability” “Undervalues the individual’s history and experience with disability” “Is inappropriate and burdensome under the revised statute and regulations” 51

52 Sources and Forms of Documentation Primary Secondary Tertiary

53 Primary Documentation The student is a vital source of information regarding how he or she may be “limited by impairment.” A student’s narrative of his or her experience of disability, barriers, and effective and ineffective accommodations is an important tool. “Only through understanding an individual's experience in context that we can translate diagnostic evaluations into useable information on the barriers and facilitators to access and full participation.” A structured interview or questionnaire, interpreted through professional judgment, may be sufficient for establishing disability and a need for accommodation. 53

54 Past History From Self-Report  Barriers and problem situations  Facilitators and accommodations  Tools and adaptive devices  Social networks and assistive services  Skills and compensatory strategies  Resources and collateral support services 54

55 Secondary Documentation  Observations by disability professional  Interaction with disability professional  Professional conclusions of all information “The weight given to the individual’s description will be influenced by its clarity, internal consistency, observed behaviors, congruency with available formal documentation results, and clinical narrative.” 55

56 Tertiary, Third-Party or External Documentation  Educational records  Medical records  Reports and assessments  Psychoeducational evaluations  IEPs and 504 Plans  Summary of performance (SOP)  Record of receiving services through a Response to Intervention (RTI) process  Teacher observations  Information on previous use of accommodations, formal and informal 56

57 Summary of 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 Self-reporting is pertinent 57

58 Process Professional Judgment Weight Sometimes More will be Needed

59 Purposes of ALL Documentation  Support disability professional in understanding:  The student’s disability experience  How disability may impact the student in the academic setting  Making informed decisions about accommodations  NOT to meet a static protocol for information that needs to be “on file” 59

60 In this Process Your Professional Opinion Matters “Professional judgment is an essential component of this process.” 60

61 The Process for Applying Your Professional Opinion A deliberative and collaborative process … in a structured exchange … exploring Previous educational experiences, past use of accommodations What has been effective and ineffective in providing access 61

62 Weight Given to Student Report Depends on Internal consistency Congruency with the professional’s observations and available external documentation “It is often possible to evaluate whether a requested accommodation is reasonable or not with minimal reliance on external documentation.” “True even if the student has never received formal accommodations or recently acquired a disability and is seeking guidance to determine accommodations that might be effective.” 62

63 “HOWEVER”– Tertiary Documentation May Still be Necessary “[I]f the student is unable to clearly describe how the disability is connected to a barrier and how the accommodation would provide access, the institution may need to request third party documentation focused on illustrating that connection.” “[In which case,] the documentation process must be accessible …. [T]the office must consider flexibility in its processes.” 63

64 Documentation May Still be Necessary “[I]f you and the student cannot describe a potential connection or identify the potential documentation that would support the request, the accommodation may not be reasonable.” “This might be an appropriate time to discuss the nature and extent of the student’s disability with external experts, such as the clinician involved, especially if you are unfamiliar with the disability or the student has several impairments which interact in ways with which you are unfamiliar.” 64

65 What Are the Elements of a “Flexible Process” 1. Individual Review 2. The application of Commonsense Standard 3. A Non-Burdensome Process 4. Reliance Upon Current but not necessarily recent documentation

66 Individual Review “[T]he salient question is not whether a given condition is a “disability,” but how the condition impacts the student.” “This determination is to be liberally construed to the maximum extent possible. “ As Congress said, “Substantial limitation is not meant to be a demanding standard” 29 C.F.R. §1630.2(j)(1)(i).29 C.F.R. §1630.2(j)(1)(i) As the EEOC said, “Substantially limits shall be construed broadly in favor of expansive coverage, to the maximum extent permitted.” 66

67 Another Element of Individualization: The Course Counts Too “Institutions should consider the student’s disability, history, experience, request, and the unique characteristics of the course” Properly choosing an accommodation “requires an evaluation of the unique attributes and requirements of the course, program, or activity.” “Course modifications or auxiliary aids or services that are ineffective or constitute a fundamental alteration will not be reasonable.” 67

68 Commonsense Standard “Disability and accommodation requests should be evaluated using a commonsense standard, without the need for specific language or extensive diagnostic evidence.” “No third party information may be necessary to confirm disability or evaluate requests for accommodations when the condition and its impact are readily apparent or comprehensively described.” “Using diagnostic information as a tool in reviewing requests for accommodation is different than using it for treatment.” Less is required for the accommodation process. 68

69 A Non-Burdensome Process The non-burdensome standard is applicable to: Initially establishing a relationship with the disability resource office Setting up individual accommodations from institutional personnel, including course instructors “Students should not be required to bear responsibility for achieving access through cumbersome, time consuming processes.” See, Guckenberger v. Boston University, 974 F Supp 106, 135-136 (D. Mass. 1997) 69

70 Current and Relevant Information “Disabilities are typically stable lifelong conditions.” “[H]istoric information, supplemented by interview or self-report, is often sufficient to describe how the condition impacts the student at the current time and in the current circumstances.” “Institutions should not establish blanket statements that limit the age of acceptable external documentation.” “Determining accommodations in distinctly new contexts may require more focused information ….” 70

71 DS Moving forward – on documentation Review & evaluate current documentation practices This process reveals overall DS features Mission – Compliance vs Resource DS Philosophy – Medical or Social Model of DisabilityMediorSocial Model of Disability Processes and policies in place – Laborious or not 71

72 Other DS areas to scrutinize Messaging from DS – Proof or Welcomerooe Knowledge about campus environment – Poor to Good Goals of the DS unit – Maintain or Changeaintainorchag Modify and update to reflect best practices 72

73 Documentation – DS’s front door? What information is requested from students and when? Are all students required to bring third-party paperwork with them to document disability and/or substantiate previous accommodations? Does DS schedule initial interview appointments only after getting disability documentation? ?? Is external documentation itself the DS front door which opens only when it is presented?? 73

74 Documentation decision-making Is our own professional comfort with decision-making influenced by presence or absence of external documentation? Do we value what a diagnosing professional tells us a person needs in our environment more than what we empirically know about the campus and academic demands, perhaps diminishing our judgments? How do we build confidence with documentation for accommodation requests when we may not have the “paperwork” that gave us comfort in the past? 74

75 Building documentation confidence – Jean’s A, E, I, ….tips Assess and affirm your own comfort with the various forms of documentation Establish consistent processes and practices rather than rigid policies with identical requirements for all Each person’s experience of & with disability is unique – true for you as well as your students Integrate your professional opinion in your accommodation decision making – your comprehensive, documented information can itself be thorough and sufficient documentation 75

76 … O & U tips Orient yourself to a “barrier perspective” – what creates barriers for which accommodations may be needed? This perspective can lead to better understanding of the environment and how it disables Use your accumulated professional knowledge and expertise with campus environments as solid bases for assessing disability information from all sources Result – a new world of Disability Resources & Services 76

77 SAMPLE - Welcoming documentation message “Disability Resources invites students who request reasonable accommodations to meet with staff to discuss their past use of accommodations and disability-related barriers they anticipate or are experiencing. While no external paperwork may be necessary to establish accommodations, medical records, psychoeducational testing and school records (such as an IEP or 504 Program) may help guide our conversation and provide information about specific requests. If this type of information is available, please submit it or bring it to your first meeting. Please don't delay meeting with us out of concern for not having appropriate paperwork.” Eastern Michigan Univ. 77

78 Original Sources For all DOJ guidance go to For all EEOC guidance go to For all AHEAD guidance go to 78

79 Thank you Paul Grossman Jean Ashmore 79

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