legal compliance: ada best practices and privacy rights€¦ · section 504 “[n]o otherwise...
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Legal Compliance: ADA Best
Practices and Privacy Rights
Erika Geetter, Esq.
Boston University
November 4, 2011
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Laws that Relate to Students with
Disabilities
Section 504 of the Rehabilitation Act of 1973,(Section 504)
29 U.S.C.§794
Americans with Disabilities Act (ADA)
42 U.S.C. §12101, et. seq.
Family Educational Rights and Privacy Act (FERPA)
20 U.S.C. §1232g
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Section 504
“[n]o otherwise qualified individual with a
disability . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be
denied the benefits of, or be subjected to
discrimination under any program or activity receiving
Federal financial assistance.”
29 U.S.C. § 794(a).
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Title III of the ADA
“[n]o individual shall be discriminated against on the
basis of 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).
The definition of “public accommodation” includes all
private colleges and universities.
42 U.S.C. § 12181(7)(J).
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FERPA
FERPA protects the privacy of education records by
prohibiting disclosure and transfer of personally
identifiable information contained in such records
without consent—except in certain circumstances.
20 U.S.C. § 1232g
34 C.F.R. § 99.1 et seq.
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Legal Requirements
Section 504 and Title III prohibitions against
discrimination includes requirement that colleges make
academic adjustments, otherwise known as
“accommodations” if necessary to ensure that students
with disabilities are not denied a program benefit.
Internal Grievance Procedure
Compliance Officer Dr. Lorraine Wolf, Director of Disability Services
http://www.bu.edu/disability/policies-procedures/additional-
information/grievance-procedure-in-cases-of-alleged-discrimination/
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Enforcement of Legal Requirements
Office for Civil Rights in U.S. Department of Education
enforces Section 504 No requirement that student’s first file a complaint under the college’s
internal grievance procedure
Department of Justice is responsible for Title III
enforcement Students alleging discrimination under Title III of the ADA may file a
complaint with the Department of Justice or may proceed directly to
federal court
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Definition of Disability under Title III of
the ADA and Section 504
A physical or mental impairment that substantially limits one
or more of the major life activities of such individual; a
record of such an impairment; or being regarded as having
such an impairment
28 C.F.R.§ 36.104 (Title III of ADA - implementing
regulations)
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Americans With Disabilities Act
Amendments Act of 2008 (ADAAA) ADAAA took effect January 1, 2009.
Goal of Congress is to increase the number of Americans who
would be would be covered by the ADA’s protections.
Broadens the definition of “Disability.”
Adds additional “major life activities” that are particularly relevant
to students at educational institutions.
Overturns Supreme Court cases relied on by lower courts when
finding that student plaintiffs were not “disabled” within the
meaning of the ADA or Section 504.
Codifies case law regarding an educational institution’s right to
reject accommodations that constitute a “fundamental alteration.”
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ADAAA: Additions to “Major Life Activities”
Definition of “mental impairment” does not change – continues to
be “any mental or psychological disorder such as retardation,
organic brain syndrome, emotional or mental illness and specific
learning disabilities.” 28 C.F.R. § 36.104
List of “major life activities” previously included “learning” and
“working.”
ADAAA adds additional major life activities of “reading,
concentrating, thinking and communicating.”
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“Major Life Activities” of students
Students have come up with a number of different activities
reportedly limited by mental impairments such as learning
disabilities.
Cases have previously rejected narrow types of activity such as
“test taking” or “participation in intercollegiate sports” as
constituting major life activities.”
Given ADAAA’s mandate for “broad coverage,” courts may be
more willing to find such activities constitute “major life activities.”
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Past interpretation of “Substantially limited”
for students with LD/ADHD
Many courts have held that college and university
students with LD/ADHD were not “substantially
limited” because, even with impairments, they had a
history of significant scholastic achievement and
were able to read, write, and learn at least as well as
the average person in the general population.
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ADA Best Practices and Privacy Rights
ADAAA: Changes to “Substantially limits”
ADAAA states that “the term ‘substantially limits’ shall be
interpreted consistently with the findings and purposes of the ADA
Amendments Act of 2008.”
Regulations under the ADAAA -- Issued by EEOC in May 2011
Impairment is a disability if it “substantially limits the ability of an
individual to perform a major life activity as compared to most
people in the general population”
Impairment “need not prevent or significantly or severely
restrict the individual from performing a major life activity in order
to be considered substantially limiting.”
29 CFR 1630.2
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ADA Best Practices and Privacy Rights
Appendix to 29 CFR Part 1630 – Interpretive Guidance:
Congress rejects the assumption that an individual who has
performed well academically cannot be substantially limited in
activities such as learning, reading, writing, thinking, or speaking.”
Congress states that focus must on the nature of the limitation “and
not on what outcomes an individual can achieve.”
The regulations state: “[f]or 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.”
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ADA Best Practices and Privacy Rights
Otherwise qualified
Both the ADA and Section 504 extend the prohibition
on discrimination only to students who are “otherwise
qualified.
A student with a disability is “otherwise qualified” if he
or she is able to meet an educational program’s
admission, academic, and technical standards with or
without accommodations.
34 C.F.R. § 104.3(l).
If, despite receiving accommodations, a student is
unable to meet the institution’s academic or other
requirements, he or she may be found “not otherwise
qualified.
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Reasonable Accommodations
Both Section 504 and the ADA require an institution to
provide qualified students with disabilities “reasonable
accommodations.”
“Reasonable accommodations” are defined as
“reasonable modifications in policies, practices, or
procedures” that enable the student to take full
advantage of the institution’s programs and activities.
An institution can set forth standards for required
documentation and procedures that must be followed
through its Office of Disability Services
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Single source for approval of accommodations
If a student is seeking mental health services or
academic advising services and it becomes clear that
an accommodation for a disability may be needed, the
clinician or academic administrator should direct the
student to the disability services office or ask the
student for permission to contact that office on the
student’s behalf.
If a student approaches a faculty member directly to
request an accommodation without going through the
disability services office, the student should be referred
to the office – the faculty member should not informally
grant accommodations.
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Accommodations Process
The accommodations process should be individualized
and collaborative, with both the institution and the
student working towards effective solutions that will
assist the particular student.
As part of this process, an institution may propose
clinically supported accommodations that would be
appropriate and useful for the student, but which
neither the student nor the evaluator has requested.
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Limits on Obligation to Provide Accommodations
Accommodations are not required if they would:
(a) result in a fundamental alteration to the
services being provided;
(b) compromise academic requirements that are
essential to the program of instruction being
pursued or to any directly related licensing
requirement; or
(c) impose an undue burden on the institution.
28 C.F.R.§36.303; 34 C.F.R.§104.44(a);
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Types of Accommodations
Auxiliary aids and Services
For students with impaired sensory,
manual, or speaking skills
Interpreters, audio recordings,
notetakers
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Adjustments to Academic or Degree Programs
Changes to Classroom Polices
Tape recorders, attendance requirements
Changes to the Manner in Which Courses or
Examinations are Conducted Extra time for exams, distraction free environment, use of
spellchecker or calculator
Changes to Degree Program Length of time for program completion, substitution of specific
required courses, adaptation of course requirements
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Fundamental Requirements:
ADAAA reiterates:
Reasonable modifications in policies, practices, or
procedures shall be required, unless an entity can
demonstrate that making such 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.
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Dismissal of Students with Disabilities
Because institutions are not required to lower
standards or make fundamental alternations to their
programs, students with disabilities who are unable to
meet minimum GPA requirements or pass courses or
examinations required for continued participation in an
academic program may be dismissed.
Institution must apply its academic standards in a
nondiscriminatory manner
Appropriate accommodations (if requested) should have been
provided,
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Raising Disability During the Dismissal Process
Dean or Committee reviewing dismissal should consider:
whether institution provided accommodations (if any) that
were requested by the student while enrolled;
whether, under the institution’s general rules regarding
dismissal, the disability should be considered a mitigating
factor (similar to any other mitigating factor) that would affect
the dismissal decision.
If a student is requesting accommodations for the first time (or
requesting additional accommodations), the committee may want
to consult with the disability services office to determine whether
accommodations, if provided, would likely allow the student to
succeed academically in the future.
Note: The disability does not entitle the student to readmission
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Dismissal due to Misconduct
Student may claim that inability to conform to the
university’s code of conduct (such as prohibitions on
plagiarism and cheating) is disability-related and that
he/she should either not be held responsible or should
be accommodated by not being punished for
transgressions.
In general, institutions are not required to tolerate
misconduct by students with disabilities, even if the
misconduct is related to the student’s underlying
disorder, provided that the student has not been
refused reasonable accommodations that would have
prevented the misconduct from taking place.
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Psychiatric Disorders and Students at Risk
to Self or Others
Nondiscrimination and accommodation mandates of
the ADA and Section 504 do not apply to an individual
whose participation in a program would constitute “a
direct threat to the health or safety of others.”
Direct threat means a significant risk to the health or
safety of others that cannot be eliminated by a
modification of policies, practices, or procedures, or by
the provision of auxiliary aids or services
28 C.F.R.§ 36.104.
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Determining Direct Threat
Determination is an “individualized assessment,
based on reasonable judgment that relies on current
medical knowledge or on the best available objective
evidence, to ascertain: the nature, duration, and
severity of the risk; the probability that the potential
injury will actually occur; and whether reasonable
modifications of policies, practices, or procedures or
the provision of auxiliary aids or services will mitigate
the risk.”
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Students With a Disability Whose Behavior
Poses a Risk to Others
Disciplinary process is an option as long as it is
applied evenhandedly and is not based on
assumptions and stereotypes about the disability.
May be preferable to deal with the student through
medical intervention rather than disciplinary process.
Goal is for student to receive appropriate treatment so
that undesired behavior ceases and student can
continue or resume studies.
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Treatment for the Student
Preferable to request that student voluntarily seek
psychiatric help or, if necessary, agree to a temporary
withdrawal from the institution.
School should mandate counseling or treatment only
when this requirement is presented as an alternative
to the disciplinary process or when it can be imposed
as a condition of returning to the campus after a
disciplinary suspension.
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Treatment for the Student (cont.)
Focus of psychiatric review is to determine whether
student can return to housing or the classroom without
posing a danger to others.
Results of this review should be reviewed by mental
health providers, the dean of students, campus police,
and ODS.
If student is allowed to return, university may put
conditions on the return:
Ongoing counseling;
Permission for student’s mental health provider to
communicate with appropriate staff at the university regarding
the student’s progress.
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Students Whose Behavior Poses a Risk to
Themselves
University policies regarding treatment of students at
risk of harming themselves must be formulated against
the backdrop of the antidiscrimination requirements of
the ADA.
In an emergency situation, the decision of whether a
student experiencing a mental health crisis should be
involuntarily hospitalized should be made by campus
mental health professionals
Use of disciplinary procedure should be a last resort
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Reaction to Concerns re Liability
Shin v. MIT (2005)
As a result of cases in which universities were sued by
parents whose children committed suicide or
otherwise harmed themselves, some institutions
began to treat threats of self-harm as per se
disciplinary violations or a basis to place a student on
involuntary leave without an individualized
assessment.
OCR has found such policies to be discriminatory
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Involuntary Medical Leave
Withdrawal of a student from housing or involuntary
medical leave of absence should occur only after an
individualized assessment that there is a significant
risk that the student will harm himself and that risk
cannot be eliminated through accommodations.
Decisions regarding student’s ability to return to
classes or to the dormitory should be made in
consultation with mental health professionals and not
solely by administrators.
Ensure due process for the student/right to be heard
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FERPA
Records of students with disabilities, whether held at
the disability services office, the dean of students
office, or elsewhere on campus, are generally
governed by the Family Educational Rights and
Privacy Act (FERPA), which protects the privacy of
education records by prohibiting disclosure and
transfer of personally identifiable information contained
in such records without consent—except in certain
circumstances.
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Definition of Education Records
“Education records” are defined in FERPA as
information directly related to a student and
maintained by an educational institution.
Education records held at a disability services office
include not only records generated by that office and
relating to services provided to the university, but also
all medical records received from the student’s own
health care providers in connection with the process of
requesting reasonable accommodations.
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Communications from Disability Services
FERPA allows disclosure of information within the
institution to school officials with a “legitimate
educational interest.”
As a rule, without a student’s consent, Disability
Services should not provide information about a
student’s specific diagnosis or medical information
supporting that diagnosis to faculty members or
academic administrators.
As part of the accommodations process, Disability
Services may need to disclose additional information
to the faculty member about the nature of the student’s
limitations – consent should be obtained first.
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Communications about a Troubled Student
FERPA does not prohibit faculty or academic administrators from
contacting the Dean of Students or Behavioral Medicine to
discuss concerns about a student’s mental health.
An exception to FERPA’s nondisclosure requirement also allows
an institution to disclose information to appropriate parties
(including parents) in connection with an emergency when
necessary to protect the health or safety of the student or others.
Disclosure is allowed if there is an articulable and significant
threat to health or safety; disclosure must be to someone whose
knowledge of the information is necessary to protect against the
threat.
As long as there was a rational basis for the determination, the
Department of Education will not substitute its judgment for that of
the educational institution.
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Behavioral Medicine Records
Disclosure of information contained in a student’s
medical records held by campus mental health
providers may be governed by the Health Insurance
Portability and Accountability Act (HIPAA), and is
governed by state laws concerning medical records,
obligations of psychotherapists or other clinicians, or
professional codes of ethics.
These laws and rules generally prohibit disclosure of
information without the student’s consent.
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Campus Resources
Office of Disability Services
Office of the General Counsel
Behavioral Medicine
Dean of Students
Don’t be afraid to ask for guidance!
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