2. ADA/Section 504 Basics: Everything You Need to Know – to Begin Jeanne M. Kincaid Drummond Woodsum 100 International Drive, Suite 340 Portsmouth, NH 03801 603/433-3317 jkincaid@dwmlaw.com

3. Caveat O The content contained in these slides and shared during the seminar is intended for informational purposes only and is based upon federal law. O The participant is cautioned that state laws may afford individuals with disabilities greater protections. O The participant is cautioned that none of this information should be treated as legal advice. Drummond Woodsum PTI: 20142

4. ADA/Section 504 Obligations O Not to unlawfully discriminate on the basis of disability O Provide reasonable accommodations to enable equal opportunity that is meaningful O All campus programs, activities and services Drummond Woodsum PTI: 20143

5. Reach of the Laws O Think broadly O General principle: if the campus offers it, it must be accessible O Example: no duty to provide transportation Drummond Woodsum PTI: 20144

6. Where Does Your Campus Fall? O All recipients of federal financial assistance: Section 504 of the Rehabilitation Act O But very different than K-12 O Private colleges/universities: Title III: 28 C.F.R. Part 35 O Colleges/universities operated by state or local governments: Title II: 28 C.F.R. Part 36 Drummond Woodsum PTI: 20145

7. A Legal Framework O How to analyze accommodation requests Drummond Woodsum PTI: 20146

8. Steps to the Framework 1. Is the student disabled? 2. Does the student’s documentation meet your guidelines? 3. Is the request directly linked to the underlying disability? 4. Does the documentation support the requested accommodation in the student’s mitigated state? Drummond Woodsum PTI: 20147

9. Steps to the Framework 5. Was the request made and timely 6. Is the request necessary to enable the student to access the campus’ programs, activities and services? 7. Is the request appropriate? a. Is the student otherwise qualified b. Does the student pose a direct threat c. Does the request impose an undue burden (financially and administratively) Drummond Woodsum PTI: 20148

10. Framework Principles 1. Institution generally acknowledges the diagnosis if it meets documentation criteria a) Unless it is in a position to challenge it with its own expertise 2. Disability services office generally decides is the student disabled a) Strictly an institutional question as to how to staff this issue 3. Third party evaluators make accommodation recommendations Drummond Woodsum PTI: 20149

11. Framework Principles 4. Institution decides upon reasonableness of requests a) Caveat: going it alone as a disability services office is rife with problems b) Institution decides upon essential programmatic criteria Drummond Woodsum PTI: 201410

12. Step One – Disability Status O Is the student disabled? O Americans with Disabilities Act (ADA) O Rehabilitation Act (504) O Impact of proposed ADAAA Title II and Title III rules O State and local laws Drummond Woodsum PTI: 201411

13. Who Is Eligible? O Students who have: O A physical or mental impairment (including health impairment) O Which substantially limits O One or more major life activities Drummond Woodsum PTI: 201412

14. The ADAAA in a Nutshell O Focus on the disability definition O Significantly expands who may qualify as disabled O Under both the ADA and 504 O Does not alter the physical/mental impairment element O Significantly expands the list of major life activities O Significantly weakens the definition of “substantially limits” Drummond Woodsum PTI: 201413

15. Presumptive Disabilities O Proposed ADAAA rules: O Although there are no per se disabilities, this list is subject to a rebuttable presumption of disability status O Rules do not bar a college from requiring documentation O Tip: in the face of authentic documentation, if a campus is going to deny protection to a student diagnosed with any of the following conditions, expect to face a heavy burden of proof O 28 C.F.R. §§ 35.108(d)(2); 36.105(d)(2) Drummond Woodsum PTI: 201414

16. Presumptive Disabilities Epilepsy Muscular dystrophy Multiple sclerosis HIV Major depressive disorder Bipolar disorder Post-traumatic stress disorder Traumatic brain injury Obsessive compulsive disorder Schizophrenia O Deafness O Blindness O Intellectual disability O Partially or completely missing limbs or impairments requiring wheelchair O Autism O Cancer O Cerebral Palsy O Diabetes Drummond Woodsum PTI: 201415

17. Original Major Life Activities Drummond Woodsum PTI: 2014 O Caring for oneself O Performing manual tasks O Seeing O Hearing O Walking O Speaking O Breathing O Learning O Working 16

18. Additional Major Life Activities Drummond Woodsum PTI: 2014 O Eating O Sleeping O Standing O Lifting O Bending O Reading O Concentrating O Thinking O Communicating O Operation of a major bodily function 17

19. Proposed ADAAA rules O Will add: O Sitting O Reaching O Interacting with others O 28 C.F.R. §§ 35.108(c); 36.105(c) Drummond Woodsum PTI: 201418

20. How the MLA is Performed O The proposed rules allow consideration of: O Condition; O Manner; and O Duration O 28 C.F.R. §§ 35.108(d)(3); 36.105(d)(3) O Example used by the DOJ: O How long an individual with a learning disability may take to read, write, speak or learn – in comparison with most people Drummond Woodsum PTI: 201419

21. Intermittent or Remission O Intermittent conditions and conditions in remission qualify as disabling if substantially limiting when active Drummond Woodsum PTI: 201420

22. Temporary Impairments O Are now murky O Under prior law, courts often used a six month rule O OCR followed suit O Is the condition minor and transitory? Drummond Woodsum PTI: 201421

23. Substantially Limits O Still not defined O But what it is not: O Severely restricts is too strong O Significantly restricts is too strong Drummond Woodsum PTI: 201422

24. Comparison Group O Most people in the general population O Proposed rules Drummond Woodsum PTI: 2014 23

25. Mitigating Measures O The ameliorative effects of mitigating measures may not be considered when determining whether individual has a disability O But may be considered in determining what if any accommodations may be necessary and appropriate Drummond Woodsum PTI: 201424

26. Mitigating Measures Defined O Broadly defined to include measures such as: O Reasonable accommodations O Implanted devices and medical equipment O Hearing aids O Assistive technology O Learned behavioral or adaptive neurological modifications (not defined) O Exception O Ordinary eyeglasses and contact lenses Drummond Woodsum PTI: 201425

27. Record of Disability O The proposed rules emphasize that such individuals *might* qualify for accommodation O Example cited: high school student has an impairment that is no longer substantially limiting; asks to miss class or have schedule change to permit follow up health care appointments O 28 C.F.R. §§ 35.108(e)(3); 36.105(e)(3) Drummond Woodsum PTI: 201426

28. Record of Disability O Kincaid’s thinking: I can’t think of any examples – O Ask yourself – what is the campus accommodating if the student does not have a current disability? O How about: I have been clean and sober for a decade and I want an exemption from culinary program’s demand that I taste wines Drummond Woodsum PTI: 201427

29. Regarded as Disabled O Is much easier to establish for discrimination purposes O If adverse action is taken against an individual based upon his/her physical impairment, so long as it is not minor and transient (lasting or expected to last six months or less) O Such a person does not qualify for accommodations O Watch out for hostile environment claims Drummond Woodsum PTI: 201428

30. Tip O Check your brochures, websites, handout materials O Update them in a manner that does not conflict with the ADAAA Drummond Woodsum PTI: 201429

31. Template Ideas O Disabled O Not disabled O Including temporary conditions/injuries O In between O Without deciding disability status, the institution will provide the following supports Drummond Woodsum PTI: 201430

32. Step 2 - Documentation O Documentation O For determining ADA/Rehabilitation Act eligibility Drummond Woodsum PTI: 201431

33. Remember O You are analyzing the student’s condition in its unmitigated state at this step O To the extent the mitigating measures are ameliorative Drummond Woodsum PTI: 201432

34. Congressional Intent O Public and private entities should not need to spend much effort on whether or not an individual qualifies as a person with a disability O The burden of proof remains with the student Drummond Woodsum PTI: 201433

35. How Much Documentation? O Two purposes: O Is this person an individual with a disability? O In a higher education setting, documentation to support the need for and type of accommodation Drummond Woodsum PTI: 201434

36. Step 3 - Linkage O Examine how the documentation links the recommended accommodation to the underlying disability Drummond Woodsum PTI: 201435

37. General Principle O If the request is not directly supported by the documentation, the institution is not obligated to honor it O But of course, draw upon your own professional experience Drummond Woodsum PTI: 201436

38. Step 4 – Mitigating Measures O Now is the time to factor in mitigating measures O Does the documentation address the student’s past and current use of mitigating measures? O Is the documentation clear that the accommodation request is necessary and appropriate in light of the student’s use of mitigating measures? Drummond Woodsum PTI: 201437

39. Step 5 - Notice O Did the student request the accommodation and in a timely manner? O It is not the institution's obligation to determine on its own the appropriate accommodation O Do you (or should you adopt) timeliness criteria? O Did the student follow the proper steps? Drummond Woodsum PTI: 201438

40. Step 6 - Necessity O Is the requested accommodation necessary to enable the student to access the institution’s programs, activities and services? O Query: would the student be denied access unless the institution implements the request? O Examine the request as well as alternative solutions Drummond Woodsum PTI: 201439

41. The Most Sought After O Testing accommodations O Especially more time Drummond Woodsum PTI: 201440

42. Not an Accommodation O Services of a personal nature do not qualify as accommodations Drummond Woodsum PTI: 201441

43. Step 7- Appropriateness O Is the requested accommodation “appropriate”? O Would it fundamentally alter the program, activity, service? Ask if the accommodation would: O Have the effect of lowering expected outcomes or standards? O Render the student not otherwise qualified? O Give the student an unfair advantage over his/her peers O Impose an undue burden? O Does the student present a direct threat despite the provision of reasonable accommodation? Drummond Woodsum PTI: 201442

44. Academic Decision-Making O Courts grant deference to academic decision-making in the absence of evidence of disability-based bias Drummond Woodsum PTI: 2014 43

45. General Practice Tips O If the institution endorses the accommodation, it effectively owns it O Is the institution promising more than it can deliver? O Is the institution exceeding its legal obligations? O If you promise it, then you are expected to deliver O Nothing is free! O Review your accommodation forms O Consider language that affords wiggle room to the faculty Drummond Woodsum PTI: 201444

46. General Practice Tips O The accommodation “memo” may be one of the most important forms in your file drawer Drummond Woodsum PTI: 201445

47. Analyze the Memo O Is it clear what the faculty is expected to do? O Is your office usurping faculty academic decision-making? O Are the accommodations recommended or demanded? O Is it clear that it is the student’s responsibility to let your office know if there is a dispute about accommodations or their implementation? Drummond Woodsum PTI: 201446

48. Analyze the Memo O Can it be misconstrued? O Does extra time for tests mean a student receives more time on performance based exams, labs and in clinical settings? O The interactive process may involve the faculty O It is not improper for accommodations to be refined based upon the course Drummond Woodsum PTI: 201447

49. Hot Issues in ADA Land O Students at risk O Access to information O Web access O Instructional access O Online instruction O Absenteeism O Extended time on assignments O Service and assistance animals O Food allergies O Housing accommodations Drummond Woodsum PTI: 201448

50. Drummond Woodsum PTI: 201449