ADA/Section 504 . REVIEW OF THE LAW.

ADA/Section 504

www.ncherm.orgwww.ncherm.org

Review of the law

LEGAL LANDSCAPE

Titles II and III of the Americans with Disabilities Act of 1990, (“ADA”)

Section 504 of the Rehabilitation Act, 1973

Fair Housing Act (“ FHA”)

State Law

Title II & III ADATitle II & III ADA1990 1990

Title II Prohibits discrimination on the basis of disability by public entities, including state colleges and universities, regardless of whether they receive Federal financial assistance Title IIIProhibits discrimination on the basis of disability in private education facilities and in the activities of places of public accommodation (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA) The language of ADA tracks Section 504 and explains that the remedies, procedures and rights under the ADA are the same as under the Rehabilitation Act

© 2012 ATIXA all rights reserved

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Section 504 of the Rehabilitation Act, 1973

A federal civil rights law, prohibits discrimination on the basis of disability in all programs or activities that receive Federal financial assistance

Forbids institutions from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services

Codified at 29 U.S.C. § 701 Enforced by the U.S. Dept. of Education Covers “any program or activity”© 2012 ATIXA all rights reserved

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Section 504Scope of Covered

Programs All of the college’s operations, programs

and activities subject to Section 504 requirements, including: Academics Athletics Employment Housing Events Web-based educational services


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Section 504Administrative Requirements

Schools must have clearly defined policies and procedures and implement them consistently

Schools must have preventive measures in place to position an institution to manage a report of disability based discrimination.

Schools must provide: notice of nondiscrimination notice of 504/ADA Coordinator notice of 504/ADA grievance procedures notice of how to obtain academic adjustments

and auxiliary aids © 2012 ATIXA all rights reserved

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Fair Housing Act

FHA makes it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such a dwelling because of a handicap person …”

FHA applies to residential “dwellings”, a term that likely encompasses campus housing including residence halls and dormitories.

WHY IS IT IMPORTANT TO UNDERSTAND DIFFERENT

LAWS?

Laws apply differently to public vs. private institutions

Laws apply different definitions and standards as it relates to service vs. assistance/comfort animals

Laws may impose different standards or response protocols

Who Is Protected Under Sec 504?

Under this law, individuals with disabilities are defined as persons with a physical or mental impairment

which substantially limits one or more major life activities

persons who have a history of having a physical or mental impairment, or

persons who are regarded as having a physical or mental impairment that substantially limits one or more major life activities


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What Is A “Major Life Activity”?

Major life activities include: Caring for one's self Walking Seeing Hearing Speaking Breathing Working Performing manual tasks Learning


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What Is A “Major Life Activity”? (cont’d)

Examples of impairments which may substantially limit major life activities, even with the help of medication or aids/devices, are: AIDS, alcoholism, blindness or visual impairment, cancer, deafness or hearing impairment, diabetes, drug addiction, heart disease, and mental illness, learning disability.


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What Is A “Major Life Activity”? (cont’d)

For students this means that a student with a qualifying disability will be “otherwise qualified” for admission to a specific academic program if he/she can meet all the necessary and articulated “essential functions” of the college program with reasonable accommodations

A student with a disability is also protected from discriminatory harassment directed at them because of their disability


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Accommodation504/Title II Principles

Colleges must ensure that students with disabilities are not discriminated against due to the absence of auxiliary aids or services. (Examples: taped texts, note takers, readers, adapted equipment)

Colleges must make academic adjustments or other reasonable modifications to policies, practices, or procedures to ensure they do not discriminate. (Examples: change in length of time to complete a program, substitution of courses).

Test format and administration should measure a student’s achievement, not the student’s impaired sensory, manual, or speaking skills (except where such skills are the factors the test purports to measure).


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Accommodations Process

Colleges and students should engage in an “interactive process” to determine appropriate accommodations that meet the student’s individual needs.

If a student wants an academic adjustment, he or she has the initial obligation to provide notice to the institution of a qualifying disability and need for academic adjustment or auxiliary aid or services.

Colleges may establish reasonable standards for documentation.

Aids and adjustments must be provided in a timely manner.


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Considerations for Providing “Equality” in

Opportunities1. What can the institution do to provide students with

disabilities equal access to the educational benefits or opportunities provided through technology?

2. How do the educational opportunities and benefits provided to students with disabilities compare to those provided to students without disabilities?

Are they equally available? Are they available in a timely manner, similar to those

provided to students without disabilities? Will it be more difficult for students with disabilities to

obtain the educational opportunities than for non-disabled students?


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ADDRESSING SIGNIFICANT ISSUES

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504/ADA Guidelines Regarding Mental

Illness A student with a mental disorder has a disability Both the ADA and Section 504 Apply

Section 504 gives recourse to students who are discriminated against on the basis of a recognized disability.

The Americans with Disabilities Act (ADA) entitles students who are otherwise qualified to participate in the programs and activities of college to reasonable accommodations once they seek qualification with the campus disability services office.

Neither law requires that a suicidal student march into the disability services office to qualify as disabled.

Today there are only limited circumstances in which OCR will find that our decision to separate a student for disruptive behavior is not a violation of Section 504.

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A Psychiatric Disability Is….

Defined as a mental impairment that substantially limits one or more major life activities

Examples of mental disabilities include: Major depression Bipolar disorder Schizophrenia Anxiety disorders Post-traumatic stress disorders


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Addressing Involuntary Withdrawal

Engaging in withdrawing a student with a disability is complex The law changed in 2011 – no longer applies to

“harm to self” as a basis for involuntary withdrawal.

However, if a student is suicidal, no documentation is needed to assume a disability

Students with disabilities have specific rights set forth by law

The institution must engage in the “Direct Threat Test”


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“Direct Threat” Test

Student poses a “Direct Threat”, a “significant risk” of substantial harm or safety of the individual to others that cannot be eliminated or reduced by reasonable accommodation.

To rise to the level of a direct threat, there must be a high probability of substantial harm and not just a slightly increased, speculative, or remote risk;

Significant risk determination must be made by considering (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.

OCR- DUE PROCESS is necessary to challenge factual assumptions to challenge that behavior is a “direct threat.”

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“Direct Threat” Test

In a direct threat situation, a college needs to make an individualized and objective assessment of the student's ability to safely participate in the college's program;

This assessment must based on a reasonable medical

judgment relying on the most current medical knowledge or the best available objective (non-medical) evidence;

The assessment must determine; the nature, duration, and severity of the risk; the probability that the potentially threatening injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will sufficiently mitigate the risk.

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Assessment for Direct Threat Test

Not mandated to be a therapeutic assessment, but an overall assessment of a student’s ability to function effectively and safely in a campus environment.

We are to use objective evidence, and if possible,

the most current medical knowledge available

OCR is, by practice, deferential to our determination of direct threat, but they insist that we make one.

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Ideation, Non-specific Threats, Gestures

The Direct Threat Test tells us that a student who is ideating, threatening or who is making non-specific gestures without a plan or means to carry though may not represent a high probably of substantial harm.

For example, in the next case, George Washington University separated a student who reported suicidal thoughts at a hospital, it clearly overreacted. It did not make a finding that met the four elements of the direct threat test.

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Nott v. George Washington University

Student, Jordan Nott sought treatment for depression and suicidal ideation following the suicide of a friend

The information was shared with administration at George Washington Mr. Nott was removed from campus on an interim basis as a substantial

and immediate harm to himself or others The University offered Mr. Nott a hearing on the interim suspension or

the right to voluntarily withdraw and take a leave of absence Following completion of recommended treatment and clearance by the

counseling center he would be allowed to return Nott sued, alleging his rights were violated under ADA, Sec. 504, violation

of privacy, infliction of emotional distress and other state and federal laws.

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Scheiszler v. Ferrum College

When the Dean discovered that a student was suicidal, student was made to sign a behavioral contract. Further indications were given to the Dean that student still intended to try to kill himself. Student did in fact commit suicide.

A negligence lawsuit claimed Ferrum knew or should have known that student was likely to attempt to hurt himself if not properly supervised, and that because Ferrum negligently failed to take adequate precautions, student died as a result


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The Court said that Ferrum College had a duty to protect a student from the foreseeable danger that he would commit suicide. While there is generally no duty to assist or protect someone from harming themselves, an affirmative duty will arise when there is a “special relationship.” The court found a “special relationship” was formed by Ferrum’s undertaking of efforts to intervene in the suicidal behavior. Where there was an obvious and “imminent probability of harm”, the college had a duty to do more than it did. Ferrum did not follow-up on subsequent suicide threats made by student


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SERVICE vs. COMFORTANIMAL

ADA Title II and III, Section 504 and FHA all prohibit discrimination based on disability and they all impose various obligations upon colleges and universities to accommodate service or assistance animals.

ADA: SERVICE ANIMAL

DOJ explicit that the following animals are not considered service animals under Title II or Title III:

- Any animal besides a dog or miniature horse

- Animals that serve solely to provide crime deterrent effect, and

- Emotional support, comfort or companionship animals

SECTION 504: SERVICE ANIMAL

Section 504 implementing regulations do not define “service animal”, Department of Education Office of Civil Rights (“OCR”) adopted definition provided by Title II and III of the ADA.

FAIR HOUSING ACTSERVICE/ASSISTANCE

ANIMAL HUD applies a broader definition of

“assistance animal” when enforcing Section 504 reasonable accommodation purposes, in the housing context

HUD broadens “service/assistance animal” to include emotional support animals that provide very private functions for persons with mental or emotional disabilities.

STATE LAW

Many states adopted antidiscrimination statutes that require accommodation of service animals.

Therefore, institutions should consult local laws when setting campus policies related to service animals

RELEVANT CASE LAW

Secretary, U.S. Dept. of Housing and Urban Dev.

vs. University of Nebraska at KearneyCharge of discrimination filed because the University refused to allow a student to keep a dog in her university-owned apartment to support her with depression and anxiety. Additionally, University also alleged to “illegally inquire into the nature and severity of the student’s disability.

PRACTICE POINTERS

Federal laws provide a floor, not a ceiling Consider how, or whether, to distinguish

between the treatment of trained “service animals” and potentially untrained “assistance animals” on campus

Remember accommodations are not limitless

Adequately train disability services and residential hall staff on nuances in law

SERVICE AND ASSISTANCE ANIMAL

POLICY SUGGESTIONS Overarching Principle: identify commitment to

compliance with state and federal laws and what office to contact for accommodation of disabilities

Request for Service or Assistance: University will determine on case-by-case basis whether such animal is a reasonable accommodation…balance needs of individual with impact of animals on campus as a whole.

Request for Documentation: University may require sufficient information and documentation to determine reasonable accommodation…letterhead of treating physician and includes information that allows university to determine qualified disability, how animal assists, animal training, and nexus with disability and animal services.

SERVICE AND ASSISTANCE ANIMAL

POLICY SUGGESTIONS Clear articulated accommodation review

process Requirements for notification to institution on

request for service animals i.e. 30 days before move-in date.

Clear articulated reasons for removal of service animal.

Owner fully responsible for animal vaccination, licensure, animal health, leash control, etc.

Appeal/ Grievance Process

Application to your institutional policies and programs

Implications for Responsibility

Since all school programs, benefits and activities are subject to Sec. 504 and ADA, All faculty and staff are responsible to comply with the requirements

This includes all professional interactions with students by faculty or staff For example, if a faculty member denies a

student who is blind an equal opportunity to participate in a course by assigning inaccessible course content, the school can be held legally responsible


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Critical Areas to Audit

Disability Services Office protocol The Title IX Coordinator is not the head of this

office! On-line admissions and/or registration process Check all instructional program standards, and

if “essential functions” are identified if important

Recognize that accommodations must go beyond merely serving blind individuals

Grievance protocol for reporting and addressing disability related complaints


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More About Program Standards

Creation of well-articulated program standards are essential to address circumstances when student with a disability cannot complete a program or benefit from it Identify graduation competencies Ensure any licensure/certification requirements are

identified and programs appropriately aligned Ensure program requirements are consistent with

accreditation requirements Ensure all field requirements are identified (both in

clinical assignments and in the profession)


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Program Standards (cont)

Look at each course to determine what the outcomes are and how students with disabilities may be able to accomplish these with accommodations

Ensure any use of web-content or e-readers are fully functional to accommodate spectrum of disabilities

Consider applying Universal Design: Universal Design for Learning (UDL) is an educational framework, based on research, that guides the development of flexible learning environments that can accommodate individual learning differences


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Program Design

The regs state that whether a school is a bricks and mortar institution, on-line or offered in another virtual context the institution must comply with Federal disability discrimination laws The compliance standards must be in place even if

there are no currently enrolled students with visual impairments

Schools must include accessibility requirements and analysis as a part of their acquisition procedures. Important questions to ask include


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Title IX CoordinatorCompliance

Considerations Sec. 504 and the ADA require that higher

education institutions designate at least one person to coordinate compliance efforts

Every institution of h.e. must adopt and publish grievance procedures to resolve complaints of noncompliance

The D.O.E. recommends that all faculty and staff participate in professional development training about accessibility and emerging technology and their role in institutional compliance with disability discrimination law


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Section 504/ADA Coordinator and

Grievance Procedures Must provide oversight of disability

program compliance Must ensure dissemination of notice of

the institution’s non-discrimination policy

Must ensure civil-rights based grievance procedures are in place to address complaints of discrimination


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Thank you!ADA QUESTIONS?

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ADA/Section 504 . REVIEW OF THE LAW.

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Transcript of ADA/Section 504 . REVIEW OF THE LAW.