1. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. A Testing Agency’s Response to the ADA Amendments Act Loring Brinckerhoff, ETS Ruth C. Loew, ETS AHEAD annual meeting, Seattle July 15, 2011

2. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. Session Outline Office of Disability Policy, ETS ADA AA Trends in accommodations requests and documentation review ETS policy statements in light of ADA AA Current disability initiatives at ETS Q & A 2

3. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. OFFICE OF DISABILITY POLICY (ODP) ODP develops policies that help all ETS programs decide how to accommodate test takers with disabilities. Some ODP tasks: Develop policies to guide accommodations decisions for specific disabilities (learning, attention deficit/hyperactivity disorder, psychiatric, physical, sensory) Promote cross-program coordination of disability-related policies and procedures 3

4. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. More ODP Tasks Work closely with the General Counsel's Office to minimize legal risk pertaining to customers with disabilities Advise programs and the Assessment Division on alternate test formats (braille, audiocassette, large print, etc.) and on emerging technologies Serve as a liaison between individual programs and Disability Services, the area of ETS that processes accommodations requests from test takers with disabilities 4

5. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. More ODP Tasks (cont’d) Oversee the work of 32 outside experts who review accommodations requests for ETS graduate and professional programs 5

6. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ADA ADA Amendments Act (ADA AA) The Americans with Disabilities Act was passed in 1990; it is a Federal civil rights, non- discrimination statute. The ADA Amendments Act was signed into law on January 1, 2009. The ADA AA regulations were passed at the end of March and became effective on May 24, 2011. Handout - Texas Association of School Boards, 2011 [http://www.tasb.org/services/hr_services/docu ments/ADAAA_Summary_of_Changes.pdf] 6

7. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ADA Amendments Act, 2009 (ADA AA) Provides an expanded definition of major life activities and a non-exhaustive list of bodily functions States that mitigating measures other than “ordinary eyeglasses or contact lenses” should not be considered in assessing whether an individual has a disability 7

8. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ADA AA (cont’d) Increased emphasis on precedents and past history of accommodations and less analysis of disability status EEOC was directed to revise regulations defining the term "substantially limits.” Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active 8

9. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ADA AA (cont’d) Transitory illnesses or injuries lasting less than 6 months were not protected under the ADA. However, a chronic condition that is episodic or in remission is now covered under the revised ADA. – Examples: migraine headaches, chronic back pain, or bipolar disorder 9

10. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ADA AA – ETS Trends and Impact Less emphasis is being placed on a diagnostic label. More emphasis is being placed on the past effectiveness of formal or informal accommodations. 10

11. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ETS Documentation Review Implications of the ADA AA ADA AA does not specify type of documentation, but it cannot be burdensome. Universities and colleges can set their own guidelines for disability documentation; they do not have to accept IEP or SOP as disability documentation. Documentation guidelines should not be too restrictive regarding disability status. Banerjee & Brinckerhoff, 2011 11

12. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. Trends in Documentation Review Under ADA AA An impairment need not prevent, or significantly or severely restrict, performance of a major life activity to be “substantially limiting.” Disability “shall be construed in favor of broad coverage” and “should not require extensive analysis.” (NBME settlement, Feb 2011) 12

13. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. Trend: Disability construed in favor of broad coverage DOJ Court Settlement with NBME (Feb 2011) Yale medical student with dyslexia requested double time and a separate room for medical credentialing exam. DOJ found NBME “demands unnecessary or redundant, burdensome and expensive repeated professional evaluations or irrelevant testing unrelated to the ability to demonstrate one’s knowledge or skills.” 13

14. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. Disability construed in favor of broad coverage (cont’d) Requirements put forth by DOJ to NBME: Must only request information about (a) existence of physical or mental impairment; (b) where impairment substantially limits one or more major life activities within meaning of the ADA; and (c) whether and how impairment limits applicant’s ability to take USMLE under standard conditions. Must carefully consider recommendations of qualified professionals Must carefully consider all evidence indicating ability to read is substantially limited, including extent to which it is restricted as to the condition, manner or duration compared to the reading ability of most people 14

15. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. Trend: Preferred vs. equivalent accommodations Enyart vs. National Conference of Bar Examiners, Inc. (9 th Circuit, 2010) Legally blind test taker was determined to be entitled to use screen magnification software (ZoomText) and screen reader (JAWS) for exam 15

16. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. Enyart vs. National Conference of Bar Examiners, Inc. (9 th Circuit, 2010; cont’d) According to Title III: Any private entity offering an examination…must assure that the examination is selected and administered to best ensure that, when the examination is administered to an individual with a disability that impairs sensory, manual, or speaking skills, the examination results accurately reflect the individual’s aptitude or achievement level…rather than her disability. Lower court determined, based on ophthalmologist’s report, that combination of ZoomText and JAWS is the “only way” she can fully comprehend the material she reads. 16

17. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. Trend: Web access NFB & Goraya vs. LSAC, 2011 The NFB settled a lawsuit with LSAC regarding access to their website by blind people. LSAC will provide full and equal access to its website for blind users by September 1, 2011. Changes will be made to the LSAC website that will allow blind users of screen access technology to read and interact with it. 17

18. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. Documentation Guidelines Documentation guidelines are designed to provide students, diagnosticians, and service providers “with a common understanding and knowledge base of those components of documentation which are necessary to validate a learning disability and the need for accommodation” (AHEAD ad hoc committee Guidelines for Documentation of Learning Disabilities, 1997). AHEAD Best Practices Resources (http://www.ahead.org/resources/best-practices-resources, n.d.) ETS Disability Documentation Policy Statements for LD; ADHD; Physical Disabilities and Chronic Health Conditions; and Psychiatric Disabilities (www.ets.org/disabilities) 18

19. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ETS Documentation Update “A documentation update is a report by a qualified professional that includes a summary of the original disability documentation findings, as well as additional evaluation data necessary to establish the candidate’s current eligibility and the appropriateness of the requested testing accommodation(s).” http://www.ets.org/disabilities/documentation/ld_a dhd_update 19

20. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. Provision of Accommodations Adjustments/adaptations to postsecondary academic and non-academic experiences that seek to ensure equal access Determined on a case-by-case basis Not meant to lower academic or technical standards of program of study; must not change essential elements of the program Must be reasonable and not cause undue burden Attention should be paid to the individual request, but request must be based on need, not preference 20

21. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. Trends in Accommodations Requests With a broader definition of disability, ETS is seeing more requests for accommodations, particularly for TBI, psychiatric disabilities, health conditions, and autism spectrum disorders. Returning veterans: many with TBI and perhaps physical, psychiatric, and/or sensory disabilities Increasing use of assistive technologies  Some assistive technologies pose security, construct, or technical compatibility issues. 21

22. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ETS Learning Disabilities Policy Statement Complete reevaluation no longer necessary for applicants w/ documentation > 5 yrs. old if most recent documentation was w/ adult measures & candidate requests only basic accommodations. May submit documentation update instead of comprehensive report. IEP, 504 plan, &/or SOP may provide useful supplementary information. 22

23. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ETS LD Policy Statement (cont’d) Additional supplemental information may include personal letter from applicant &/or letter from DS or HR describing current functional limitations and accommodations use. 23

24. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ETS ADHD Policy Statement Emphasizes importance of 1 st -hand objective data to complement test scores. Acknowledges that ADHD is typically exhibited in childhood or early adolescence. Includes new emphasis on co-morbidity, rule- outs, and dual diagnoses Encourages candidate to write personal statement highlighting own history & current need for accommodations 24

25. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ETS ADHD Policy Statement (cont’d) Requests info about positive or negative effects of medication Update of intellectual functioning is generally not necessary if WAIS-IV or other comparable measure was used in past. 25

26. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ETS Psychiatric Disabilities Policy Statement (under revision) Confidentiality statement up front in document Additional info on impact & side effects of medications as well as medication use & abuse Chart of medications frequently prescribed for this population Clarification of differences between test anxiety and Generalized Anxiety Disorder Will be in step w/ forthcoming DSM-V 26

27. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ETS Psychiatric Disabilities Policy Statement – under revision (cont’d) Encourages applicant to write personal statement highlighting own history & current accommodations needs Requests that candidate provide information on substance abuse, sleep disorders & risky behaviors, as appropriate 27

28. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ETS Physical Disabilities & Chronic Health Conditions Policy Statement Addresses broad range of physical disabilities & chronic health conditions ETS will consider approving accommodations for episodic medical conditions if functional limitations are documented over time Mitigating measures other than ordinary eyeglasses or contact lenses are not considered in assessing whether or not individual has a disability. 28

29. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. ETS Physical Disabilities & Chronic Health Conditions Policy Statement (cont’d) No financial penalty if test taker becomes sick just prior to test time or during test as long as Disability Services is notified. If disability is of permanent or unchanging nature, documentation doesn’t need to include extensive listing of diagnostic test instruments. Medical devices, snacks, and beverages needed in testing room must be requested & approved in advance. 29

30. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. Current Disability Initiatives at ETS Increasing use of newer technologies that test takers use Increasing consideration of accessibility issues when products are designed Accessibility Steering Committee Website accessibility Disability research projects Hiring additional staff in ODP and Research 30

31. Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. For additional information, please contact: Loring Brinckerhoff, Ph.D. lbrinckerhoff@ets.org Ruth Loew, Ph.D. RLoew@ets.org 31