1. Psychiatric Disabilities- Evaluation of Self-Harm and Direct Threat for Post-Secondary Institutions When is a Student No Longer Qualified to Remain in School? Diego Demaya, J.D. Southwest ADA Center

2. Does College Have a Duty of Care? Suicide is the second leading cause of death among college-aged students. (http://www.nimh.nih.gov/health/publications/d epression-and-college-students/index.shtml)http://www.nimh.nih.gov/health/publications/d epression-and-college-students/index.shtml 30% of undergraduates reported experiencing serious depression during their college careers – 2011 survey. Courts are split on college Duty of Care.

3. Takeaway Agenda The population of students with mental disabilities is increasing and most do not necessarily disclose their disability until mental crisis hits. We review applicable legal standards. Proactive development of a fair and Due Process-like evaluation procedure consistent with applicable laws.

4. Clear and Present Danger! States may require post-secondary institutions to report to State and local authorities students found to pose a “clear and present danger: “Clear and present danger” can be defined under the Law as: – A person who demonstrates threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior, as determined by a physician, clinical psychologist, qualified examiner, school administrator, or law enforcement official; or – A person who communicates a serious threat of physical violence against a reasonably identifiable victim or poses a clear and imminent risk of serious physical injury to himself, herself, or another person as determined by a physician, clinical psychologist, or qualified examiner.

5. The Silence in Title II Helped Prior to ADAAA OCR interpreted "direct threat" to encompass "self- harm" and harm to others despite no mention of “self-harm” in Title II-Section 504 statutes and regulations. OCR resolution letters consistently stated that institutions could remove, discipline or take other corrective actions against a student -- regardless of disability if the student was a direct threat to self or others. OCR informally advised that disability law “does not prohibit a postsecondary institution from acting to address an imminent risk of danger posed by an individual with a disability who is a direct threat to the health and safety of herself or others” -- provided that certain safeguards and due process standards are met and that adverse action is not a pretext for discrimination.

6. Is There a Difference Between Self- Harm and Harm to Others? Possibility: DOJ considers evaluation of “self-harm” and “harm to others” substantively different – a “clumsy” argument? Underlying misconduct is the same: violence or serious harm to a person. Institutions have the authority and discretion to take appropriate measures to prevent and eliminate threats regardless whether a student is disabled. Emergency removal or compulsory withdrawal protocols have the same goal regardless whether there is a threat to self or others: preventing violence or other serious harm to a person on campus.

7. The Silence in Title II is Gone Title II was amended to mirror Title III “direct threat” to cover harm to “others” only. Section 504 was also amended by ADAAA for consistency thereby covering private colleges. The revised regulations expressly recognize a defense to adverse actions taken against students who pose a direct threat to the health or safety of others only.

8. Definition of "direct threat" 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. § 35.104.

9. Review of the Regulation 28 C.F.R. § 35.139 provides: (a) This part does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others. (b) In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make 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.

10. Significant OCR Policy Change OCR 2012 "dear colleague" letter and FAQ state that it will enforce Title II and Section 504 consistent with the ADA Amendments Act."dear colleague"FAQ FAQ makes no mention of "direct threat" determinations in view of revised Title II. Presume that it is unlawful to take adverse action -- e.g., involuntarily separate, suspend or expel a student solely on the basis of self-harming or direct threat behavior. Perform the individualized analysis before removing a student from campus or imposing return conditions – but must consider accommodations along with available mental health services that could make the student “otherwise qualified” to remain in school.

11. The Employment Direct Threat Standard Titles I, II, and III contemplate “direct threat” to “others” – but not self-harm. EEOC regulations add provisions to allow “self- harm” direct threat review. Employment case law resolved that employers may not use a threat to self defense as a pretext for discrimination, because the regulation requires an individualized assessment “of the employee's present ability to safely perform the essential functions of the job” before removal or dismissal.

12. Employment Direct Threat Rule In determining whether individual would pose a direct threat while at work, factors to consider include: 1)the duration of the risk; 2)the nature and severity of the potential harm; 3)the likelihood that the potential harm will occur; and 4)the imminence of the potential harm. See, 29 C.F.R. § 1630.2(r) There must be a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.

13. Compare with Obligation of a College An employer must consider a reasonable accommodation, even Where there is a significant risk of substantial harm to health or safety. An employer still must consider whether there is a reasonable accommodation that would eliminate the risk or reduce the risk so that it is below the level of a "direct threat."

14. Evaluate Before Taking Action At least two OCR regional offices stated in unofficial correspondence that due to the DOJ’s revised regulation, institutions may no longer incorporate a threat to self analysis in their policies for emergency removal or involuntary medical withdrawal, and other OCR officials have reiterated that position in public presentations. Inference: government seeks to avoid stereotypical responses to students at risk for self-harm and expects colleges and universities to focus on providing care and accommodations to those students.

15. Why Not “Self-Harm” as Direct Threat? The commentary in the 1991 preamble to the Title II rule stresses that a main goal of the ADA is the protection of individuals from discrimination based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to legitimate concerns; e.g., the need to avoid exposing others to significant health and safety risks. The 1991 commentary further provides that the determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a disability. It must be based on an individualized assessment. It appears that DOJ purposefully excluded “self-harm” as a matter of preventing entities from avoiding the individualized analysis to contemplate possible ways of accommodating or mitigating “self- harm” situations through available support; e.g. campus counseling.

16. Useful Pre-ADAAA OCR Warning An OCR letters stated that taking action against a student believed to be a threat to self would violate Section 504 if it failed to base its determination on an individualized and objective assessment of the student's ability to participate safely in school programs. The assessment must be based on a "reasonable medical judgment relying on the most current medical knowledge or the best available objective evidence." Assessment must determine: 1) the nature, duration and severity of the risk; 2) the probability that the injury will occur; and 3) whether reasonable modifications of policies, practices or procedures can mitigate the risk. There must be a high probability of substantial harm, not just a slightly increased, speculative, or remote risk. Such individualized assessment is essential to ensure that any adverse actions against persons posing a direct threat are not a "pretext or excuse for discrimination.“ (e.g., 29 C.F.R. § 1630.2(r))

17. Case in Point Student with bipolar disorder was involuntarily withdrawn after attempted suicide. The official making the determination failed to contact the student's healthcare providers before sending a letter stating that it was in the student's best interest to leave school and receive professional help. He also failed to review any of the student's medical or counseling records prior to making the decision. One week after the withdrawal letter, the student's mental health counselor stated that the student was no longer suicidal and that the counselor had encouraged the student to return to classes. OCR found that the university violated Section 504: failure to "consult with medical personnel, examine objective evidence, ascertain the nature, duration and severity of the risk to the student or other students, or consider mitigating the risk of injury to the student or other students.” They also failed to provide the student with advance notice of a hearing and an opportunity to be heard (OCR Letter to Bluffton University).

18. The Otherwise Qualified Standard - 1 Court cases addressing student safety issues have been decided under Section 504 and indicate that schools can take adverse actions against students whose participation in certain activities or programs would cause them harm. These cases avoided the "direct threat" defense, but analyzed whether a student remains "otherwise qualified" as a result of a threat of injury or a life-threatening illness. In Knapp v. Northwestern University, a student was barred from competition in NCAA basketball due to a heart defect. A school physician declared the student ineligible to participate on the basketball team based on a number of factors: the student's medical records in which several treating physicians recommended that the student not play competitive basketball, the report of the team physician after examining the student, published guidelines and recommendations regarding the eligibility of athletes with heart problems, and the recommendations of consulting physicians. The court held that Northwestern had not discriminated against the student based on disability, because he was not “otherwise qualified” to play intercollegiate basketball. It stated that a “significant risk of personal physical injury can disqualify a person from a position if the risk cannot be eliminated.”

19. The Otherwise Qualified Standard - 2 Northwestern did not violate Section 504, because it reasonably considered and relied on sufficient evidence specific to the student and the potential injury in determining that the student was not otherwise medically qualified to play basketball. The court “ensure that the exclusion or disqualification of a student was individualized, reasonably made, and based upon competent medical evidence,” not “unfounded fears or stereotypes.”

20. Compulsory Removal of Student In November 2011 OCR determined that Spring Arbor University violated the civil rights of a student with a mental health disability who withdrew voluntarily. It took issue with conditions placed on the student’s return to campus. It blamed the university for failing to determine whether the student posed a "direct threat to others. It has been routine for colleges and universities to require a mental health clearance stating that a student is fit to return to campus. Similarly, institutions required medical certification of physical fitness from someone who was injured and spent time in the hospital. It has been standard practice to dismiss students indefinitely and requiring them to seek psychiatric treatment as a condition to return.

21. OCR Applies New Policy Possibility: college purposefully avoided Direct Threat because the strict factors to meet the test might have weakened its case to remove student. OCR decided this case consistently with Justice Department interpretations that the threat has to be against others -- not to the student. The omission of a direct threat to self defense in the Title II regulation suggests that institutions can no longer force compulsory removal or withdrawal of students under a "direct threat to self" analysis. This signals that “self-harm” must be evaluated differently.

22. Now What? According to a 2008 American College Health Association Survey which queried over 80,000 students across over 106 schools, forty-three percent of all students said they felt "so depressed it was difficult to function" at least once within the last school year. Nine percent said that they had "seriously considered attempting suicide" within the last year. Should all these students – 1 out of 11 -- be asked to leave college?

23. Industry Misperception Disability Services includes neither triage and crisis intervention -- nor assessment or treatment services. School officials worry that they can no longer protect students contemplating self-injurious harm -- they believe DOJ is instructing colleges to retain unstable students until they threaten harm to others or disrupt the educational environment. One school attorney said, “What I think this means is something of a paralysis for colleges and universities trying to navigate between the civil rights of individuals with disabilities and the need to protect the community from students who may be at risk of harm to self or others... It may be that the best thing to protect the community and its members may be to violate federal law…”

24. More Misperception One dean said, “I don’t know that DOJ and OCR understand what it’s like … when a student is… wrecking the academic performance of a half- dozen peers who feel like they have to sit at the bedside of a troubled student 24/7”…” Yet, isn’t caring for others something we want college students to learn? Isn’t friendship something to be fostered in college?

25. LET’S REVIEW SOME SITUATIONS LET’S REVIEW SOME RECOMMENDED PRACTICES

26. EXAMPLE A Woodbury University -- OCR determined that the university did not violate Section 504 when it barred a student from staying in her dorm during the Christmas/New Year intersession after she had harmed herself during Thanksgiving vacation. OCR found that there were reasonable conduct- based grounds for the University to believe that the student would be a direct threat to her own health and safety if she were in her dorm during the intersession. [18]

27. Points of Interest Suicide statistics indicate that there may be factors protective and/or positive about the campus environment for students facing mental health issues. Research data indicates that college students commit suicide at rates half those of their same-age, non-college-going peers.

28. Unanswered Questions: 1)May schools incorporate a direct threat analysis to a self-harm situation to enforce student removal or withdrawal policies without violating federal law? 2)How should institutions amend their health and safety, or self-harm, policies to be consistent with the ADAAA? 3)When is a behavior a "code of conduct violation" versus a disability-related issue that the school must at least attempt alleviate or manage through providing an accommodation? 4)What is the obligation of a college to notify parents or a guardian that a student’s disability related behavior has been disruptive or in violation of student conduct codes? 5)At what point should a college bring in police authorities? 6)Given applicable confidentiality laws (such as HIPAA or FERPA) may the college notify parents of a student’s behavioral issues?

29. THE ADA CENTER TOLL FREE – (800) 949-4232 WEB: www.SouthwestADA.orgwww.SouthwestADA.org Local Phone: (713) 520-0232 Diego Demaya – (713) 797-7114 E-Mail: diego.demaya@memorialhermann.orgdiego.demaya@memorialhermann.org