Introduction legislation and litigation.ppt with notes


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  • Begin by understanding court system. SE law is both state and federal. Cases can be filed in either court, depending upon the legal principle they violate or address the most appropriately. \n\nAt STATE level, cases are filed at the Superior Court level (lowest statewide level). Verdict may be appealed to the Appellate Court and then on to State Supreme Court, which may opt to hear the case (OH). \n\nAt FEDERAL level, cases are filed in District Court. Most cases are adjudicated at this level. Those appealed are transferred to Circuit Court of Appeals (OH) We are in the 9th Circuit, which includes CA, NV, OR, WA, ID, MT. Important point: precedent. Any case heard in the 9th Circuit has precedential value throughout the circuit. Impact when we discuss Larry P v. PASE v. Hannon. Final court is US Supreme Court. May elect to hear cases, and in some cases, appeal may be made directly to the US Supreme Court (OH).\n\nFederal cases must have direct impact on CONSTITUTIONAL LAW. Therefore four amendments to the US Constitution have direct relevance to SE.\n
  • Overview of parental rights. Cases may stem from violation of these rights, but largely these are rights that assure parents access to the courts.\n
  • Brown: established the equal protection (14th amendment) principle with respect to equal education\n\nPARC: failure to educate children denies equal protection, lack of recourse denies due process (14th Amendment). First case to lead DIRECTLY to P.L. 94-142.\n\nMills: Established right of all children to public education (zero reject). 14th Amendment principles, along with PARC locked in principle. Also established due process framework: right of hearing, appeal, access to records present in P.L. 94-142.\n\nWyatt: established right to treatment, and that failure to treat was “cruel and unusual punishment”\n
  • Background: IQ test used freely in schools, often only source of determination of MR or for SE placement. No evaluation of bias - everyone tested in English.\n\nDiana: Primary language assessment, bias in assessment. Lead to replacement of IQ test (or any test) as sole measure of disability, primary language assessment and thus non-discriminatory assessment.\n\nLarry P: Further limited use of IQ test. Post 94-142 case lead to determination use of biased IQ test resulted in overplacement of AA kids in dead-end non-academic curriculum\n\nPASE: Similar to Larry P, but removed biased items. Judge ruled tests do not discriminate. Illustrates influence of Circuit Court.\n\nLau: Chinese children not receiving instruction in their primary language. Went to US Supreme court, which held language an element in equal education.\n\nTimothy: Another “uneducable child” case - state contended intent of 94-142 was to educate all children who could benefit. Ruling: all meant ALL. \n
  • Rowley: established the notion that appropriate was not necessarily optimal.\n\nRachel: LRE assumed to be general education classroom \n
  • Tatro, and later Frey: established that medical services were related services\n\nHonig: established districts cannot unilaterally deny children services by expelling or suspending indefinitely. “Stay Put” rule applies until determination of appropriate placement is made. Lead to Behavior Manifestation Review in PL 105-17. \n
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  • A coach, band director, admissions officer, can not deny participation due solely to disability. If coach refuses to allow a student with a hearing impairment to try out for the team, or if a teacher education program refuses admission to a student solely because of his (her) blindness, the entire school district or university could loose any federal funds it receives.\n\nIf disability prevents attainment of required standards, participation or admission denial could be justified.\n
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  • BRIEF REVIEW. Consider how each case applies to one or more of these.\n
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  • 94-142(1975) Lived with this legislation for 11 years before amendment. \n99-457 (1986) Big amendment to add Early intervention services\nadd more things/components, and dont take things out. Adding services to the 0-3 year olds that fit the requirements of risk. \nDevelop Delay, Down Syndrome, Family services is the focus, not only receiveing preschool, but the whole family is part of the deal.\n\n\nNote: Deaf Hard of Hearing: In california, 4 groups of Low incidence 1% or less of school age population and eligible for funding, Deaf and Blind, DHH, VI and Blindness, Severe Orthopedic Impairment. Carefully protected. and not identified by the law PL 99-457\n \n
  • Some of the goals for the IFSP- Reviewed every 6 months. Moving along quickly developmentally and they change rapidly,\nExample, Parents will seek nutritional counseling for the child. (familiy Goal)\nIt is unique in California, the Regional Center provides services the families. (21 Centers) Independent of the school system. Parallel but separate. The funding comes from a federal fund. \nVendors pay for the provision of the services. Mommy and me, PT, OT, \nHas to be assessed by Regional Center to see if they have a developmental disability.\n\nSome children do not receive services because, There is another service CCS California Children Services, (established before Regional Center) OT, PT, not paid by the department of Edcuation. Their lists are very restricted. and REgional center was created to compliment CCS, and see those that weren’t being serviced by CCS. \nCP are at risk for DD, and part of the categories for CCS. Wheel chairs and equipment from CCS, and services from Regional Center\nSome children do not receive services because maybe they don’t have a risk of DD.\n\nRegional Center has suffered from the economical crisis, and some children have been put on a list of monitoring and wait and see plans, \n\n
  • Note* ADHD- There are many children with and may not affect their educational success. (Over alertness, hyperactive) dont need and IEP, just good teaching \n
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  • It is a must and if a school or state does not fulfill, then the funding stops. $$\n99-457 (1986) had a clause and invited states to sign on and received funding to start their program. and had to sustain giving services for 0-3. California was the last to sign up because it is a BIG state. \n
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  • Green- these 4 categories are referred to as by some special education professional Suspect Categories There is not medical diagnosis, manufactured disability. \nThere is lots of evidence that have people with dislexia and a part of the brain lights up and suggests that the brain function is not working properly. However, these four are hard to diagnose medically. \n\nDSM assessments are the only way to identify the disability\n\nMR-Mental Retardation is a suspect category and it is hard to define INtelligence. It is hard to define. In a Bell shape curb It assumes that as a society, most people will cluster in an average. and people on the side range, will be categorized as LOw functioning compared to some group. The closer you are to the average the less severe MR is...who says? It is hard to determine where the line is that determines where the person should fall into as having MR. NOt LD, will be identified as MR. \n\nSLI- Articulation is hard to determine if it is a disability based on articulation because it might be a late bloomer and might be developmentally behind or \n\nEmotional Disturbance- Behavior disorder, The intensity, duration, # of times that constitutes and determines the severity of the issue. Someone has to decide if it is emotionally disturbing. Contextual? \nOver labeling children based on your own value system. Environmental barriers-EX: Teachers might not understand where or why they might be acting that way. \n\nRTI-Response To Intervention: Puts supports in education so that the student would not have an IEP. an artifact of the field of moderate disability\nMore referrals -RTI should be able to pick up on it- and respond to their needs, and not need an IEP. \n\n\n\n\n\n\n\n\n
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  • To expand section 504. \n
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  • Not age bound, at all times. Applies to students in a public school system, without and IEP, they are entitled for reasonable accommodations\n\n
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  • Introduction legislation and litigation.ppt with notes

    1. 1. Litigation & Legislation Special Education: An Overview EDSP 501 Sherwood Best, Ph.D.
    2. 2. Important Principles in Constitutional Amendments Relating to Special Education Law• The Fifth Amendment: Criminal and Due Process ä Access to courts ä Right of appeal• The Eighth Amendment: Punishment for Crimes ä Cruel and unusual punishment• The Tenth Amendment: Powers Reserved to the States ä State jurisdiction over state matters• The Fourteenth Amendment: Civil Rights of Citizens ä Equal protection under the law
    3. 3. Parents’ Due Process Rights• When the disputing a decision regarding their child’s identification, evaluation, placement or programming, parents have a right to: ä Present evidence and call witnesses ä Be represented by a person of their choosing ä Impartial panel or hearing officer ä Expect action in a reasonable period of time ä Have the hearing at a time and place convenient, and with advance notice ä Have access to their child’s records ä Have translations of notices and proceedings as needed ä Appeal to a higher level
    4. 4. Early Cases• Right to education or treatment, prohibition of cruel and unusual punishment, reinforcement of due process and equal protection, responsibility of states to allocate funds.• Significant Cases: ä Brown v. Board of Education of Topeka [347 U.S. 483 (1954)] ä Pennsylvania Association of Retarded Citizens (PARC) et al. v. Commonwealth of Pennsylvania [343 F. Supp 279 (1972)] ä Peter Mills et al. v. Board of Education of the District of Columbia et al [348 F. Supp 866 (1972)] ä Wyatt v. Stickney (Alabama,1972)
    5. 5. Important Litigation in Special Education• Eligibility, assessment and the right to an appropriate placement• Significant Cases: ä Diana v. State Board of Education (California, 1970) ä Larry P. et al v. Wilson Riles et al [495 F. Supp. 926 (1979)] ä People in Action in Special Education (PASE) v. Hannon (Illinois, 1980) ä Lau v. Nichols (California, 1974) ä Timothy W. v. Rochester School District [875 F. 2nd 954 (1988)]
    6. 6. Important Litigation in Special Education• Right to an appropriate education• Significant Cases: ä Board of Education of the Hendrick Hudson School v. Amy Rowley [485 U.S. 176 (1982)] ä Board of Education, Sacramento City School District v. Rachel Holland [786 F.Supp. 874 (E. D.Cal, 1992)]
    7. 7. Important Litigation in Special Education• Special Issues• Significant Cases: ä Henri and Mary Tatro et al. v. The State of Texas et al.[82L Ed. 2d. 664 (1984)] ä Honig v. John Doe [484 U.S. 395] ä Chanda Smith v. Los Angeles Unified School District (California, 1996)
    8. 8. Outcomes of the Chanda Smith Case• As a result of the consultants’ investigations, a series of recommendations were made, to which the district agreed: ä Administration and special education restructuring ä Revision of special education policy and practices ä SST at every site ä Centralized school records ä Parental support ä Program of staff development ä Implementation of LRE ä Adequate, fair, and appropriate facilities and services ä District compliance with special education law
    9. 9. Key Legislation• Most Federal & State right to education laws are based on prior litigation (e.g. PARC, Mills) giving educational rights to individuals with disabilities.• The two earlier and most prominent pieces of legislation include: Section 504 of P. L. 93-112 and P. L. 94-142 (the Education for All Handicapped Children Act)
    10. 10. Section 504 of PL 93-112 (1973)• Section 504 was enacted as part of the Vocational Rehabilitation Act of 1973.• Section 504 is a counterpart to Civil Rights Act of 1964 (prohibiting discrimination based on race or national origin) and Title IX of the Education amendments of 1972 (prohibiting discrimination based on gender).• Ensures children w/ disabilities have equal access to education• Section 504 does not require an IEP to meet child’s unique needs & provide an educational benefit
    11. 11. Section 504 “No otherwise qualified handicappedindividual in the United States…. Shall, solely by reason of his (or her) handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discriminationunder any program or activity receiving federal financial assistance.”
    12. 12. 504 Application to Education• Prohibits discrimination against America’s individuals w/ disabilities; therefore students in schools w/ disabilities.• Requires physical access in buildings for individuals w/ disabilities, including schools.• Students who do not qualify under IDEA definitions, may qualify under Section 504 if significant learning problems exist that affect school performance.• Disability definition under 504 broader than IDEA• Must have disability that limits a major life activity
    13. 13. Major Life Activities Defined• Major life activities include: “caring for one’s self, performing manual tasks, walking, seeing, hearing, breathing, working, & learning”*• 504 protects those who no longer have a disability ä Cannot discriminate against someone because they once had disability• Protects students incorrectly classified as disabled• Students coved by IDEA are covered by 504• Some students w/ disabilities not covered by IDEA may be covered by Section 504• Such disabilities may include Tourette’s syndrome, asthma, diabetes, arthritis, allergies, AIDS, those w/ alcohol or drug problems (if not currently engaged in illegal drug use).• ADHD & Tourette’s syndrome are now specifically identified in PL 108-446 under Health Impairments * Not intended to be exhaustive
    14. 14. Reasonable Accommodations• Reasonable accommodations a key concept ä Make modifications to existing environment to eliminate barriers ä Accommodations required in employment but not specified in schools• Courts & OCR have held that reasonable accommodations are those that do not impose excessive financial & administrative burdens or require fundamental alterations in the program• Accommodations, including changing way things are usually done to consider disability & student needs (e.g. rule, policy & practice modifications, removing architectural & or communication barriers, providing aids, services, assistive technology.
    15. 15. Implications of PL 93-112 & Section 504• Section 504 prohibits exclusion from programs solely on the basis of one’s disability.• Like IDEA, Section 504 requires free & appropriate public education to qualified students• Prohibits denial of access or services for students w/ disabilities• Prohibits lower quality benefits for students w/ disabilities• Prohibits different or separated benefits or services unless necessary to provide benefits equal to non- disabled students
    16. 16. PL 94-142• 1975 Congress passed P.L. 94-142 naming it the Education for All Handicapped Children’s Act (EAHCA)• Permanently changed the face of Education in the United States• Reauthorized & amended several times• Most recent reauthorization was 2004• Renamed the Individuals with Disabilities Education Act (IDEA) in 1990, then the Individuals with Disabilities Education Improvement Act (IDEIA) in 2004.
    17. 17. Principle Provisions of Special Education Law From P.L. 94-142 to P.L. 105-17• Free appropriate public education - FAPE• Special education and related services• Least restrictive environment - LRE• Zero reject• Non-discriminatory assessment• Parents’ rights and procedural safeguards
    18. 18. Zero Reject• No exclusion--no matter how severe the disability• All students w/ disabilities from 0 to 21 are located & served• Each SEA responsible for locating, identifying, and evaluating all children, birth to age 21, residing in state with disabilities or suspected of having disabilities.• Requirement is called “Child Find.”
    19. 19. Non-Discriminatory Assessment• Test must be fair• In child’s native language• Not biased culturally/racially• Use variety of measures• Assessments must be valid & reliable• Administered by trained professionals• Parents must consent to the evaluation process• These provisions referred to as “protection in evaluation procedures.”
    20. 20. FAPE• Entitlement to special education & related services ä Provided at public expense ä Meet state standards• Provided according to an IEP ä Appropriately developed & implemented• Reasonable opportunity to learn• Meaningful benefit
    21. 21. FAPE (con’t)• IEP team must discuss pupil’s communication needs in terms of providing (Calif. Ed. Code) ä Direct & ongoing language access to teachers/specialists proficient in pupil’s primary language mode ä Services to ensure communication accessible • academic instruction • school services • extracurricular activities
    22. 22. Mandated Components of IEP• Statement of child’s present levels of education performance• Statement of measurable annual goals• Statement of special education & related services• Explanation of extent, if any, to which child will not participate w/ non-disabled children in regular class & activities
    23. 23. Mandated IEP Components• Modifications in administration of state or district-wide assessments of student achievement needed to participate or why assessments not appropriate & how child will be assessed• Projected date of beginning of services and modification, anticipated frequency, location, duration of services & modifications• How progress toward annual goal measured, & how parents informed
    24. 24. LRE• Educated & participate w/ children without disabilities to the maximum extent appropriate• In schools & classes would attend if not disabled• IEP must provide justification for segregation• Continuum of placement options available• Removal from reg. ed. environment ä Occurs only if education in regular classroom can’t occur satisfactorily w/ the use of supplementary aids & services
    25. 25. Procedural Safeguards & Due Process• Procedural Safeguards • Due Process• Parental participation • Use appeal procedures• Prior written notice when disagree• Consent to assessment • Informed of free/low & placement cost legal services• To examine/obtain • Represented by legal child’s records counsel• Independent evaluation • Advised by experts
    26. 26. Parent Participation• Schools must collaborate w/ parents & students w/ disabilities to design and implement special education services• Parent’s (whenever appropriate, student’s) input & wishes must be considered in IEP goals, objectives, related service needs, & placement decisions• Parental consent is required for evaluations & special education placement decisions• In disagreements on identification, evaluation, placement, or special education or related services, parents may request due process hearing• State must offer parents opportunity to resolve matter through third party mediation before hearing• If parents prevail, right to attorney fees
    27. 27. PL 99-457 (Amendments to EHA in 1986)• Infants and Toddlers with Disabilities Act (1986) ä Extended special education rights to 3 - 5 year olds ä Established new federal discretionary program for states to provide services to 0-3 years who qualify with: • Condition resulting in developmental delays • Developmental delays • At risk for developmental delay
    28. 28. Major Components of PL 99-457• Services to all eligible infants & toddlers & their families• Comprehensive multidisciplinary evaluation of all children & identification of family needs in assisting child’s development• IFSP every 6 months for 0-3 infants & toddlers, that includes service coordination• Services provided, to the maximum extent appropriate, in natural environments- Preferred environment- similare to LRE in the school system• (where there would be children without disabilities) Ex: Jamboree, Mommy and me, park, Home, Day Care• It makes it hard to network with other families/parents• limited to home services• Procedural safeguards similar to Part B of 94-142• all the same for older children.• Policies & procedures to ensure transitions from Part C to preschool or other appropriate services• Process of transition to School setting with any special education programs, placement or assistance.• Or if they made sufficient progress and might not need additional services• Regional Center might keep providing services up until adulthood.• SSI-Supplemental Social Security if not worked• SSDI- If worked• If that person has grown and has become disabled after discharged from REgional Center. They are not eligible.
    29. 29. PL 101-476 (IDEA) Amendments to PL 94-142 in 1990• Person first language (i.e., “children, student, individual w/ a disability”)• vs. Handicapped children, the handicapped, CP ‘suffer’, wheelchair bound?, bed bound (inappropriate language)• Added students w/ autism & traumatic brain injury as separate disability categories• Up to 11 categories in the educational system (including SpecLearnDisabi). and added 2 more for politics, attracts media, funding, families wanted to take the category of autism out of disability category.• Added rehabilitation services & social work as related services• OT, PT, that can be requested in the IEP. which would not be possible before 1990 through working with the school and funded by school or programs such as medicare, medical. toileting, dressing, (non nursing/non educational in a medical facility)• Transition plan ä Transition plan must be part of the Individual Family Service Plan (IFSP) for every infant and toddler under IDEA. ä Transition planning by age 16 for all students receiving sped and related services under IDEA. ä After school age? Department of Rehabilitation? For older kids, many went back home and sit without services. This legislation identified the transition plan to begin and mandated at 16 with an IEP. Later changed to 14, and changed back to 16, however some districts keep the age of 14. ä ITP, Individual Transition Plan. to fulfill the federal legislation. State mandates we can do no less than what the feds require. but may do more than require. such as begin ITP at age 14 ä
    30. 30. PL 105-17 (Amendments to IDEA in 1997)• Reauthorized 101-476 by consolidating law from eight to four parts & making additions: ä Encouraged parents & educators to resolve differences through non-adversarial mediation. ä Transition begun at age 14 (assessment of transition needs) ä Added provisions governing problem behavior (behavior manifestation review) ä Restructured IEP & parent participation in IEP process ä Defined student participation in district- and state- wide testing ä Substantial emphasis on time spent by children w/ disabilities in general classroom- Mainstreaming ä Changed funding formulas
    31. 31. Special Education Is…• Instructional aids & services for all students with disabilities• Early childhood services for students w/ developmental disabilities, or at-risk, & their families• Provided birth to age 22• Includes planning for transition to work & independent living• Mandated by P.L. 105-17• All schools receiving federal funding must provide services
    32. 32. Who Is Eligible?• Must meet eligibility requirements for one or more of 13 categories of disability• Must be considered a child with a disability, as defined by federal law:IN GENERAL- The term ‘child with a disability’ means a child-- (i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (hereinafter referred to as emotional disturbance), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.P.L. 105-17, Section 602 (I) (3) (a)
    33. 33. Eligible Children• A child who meets eligibility requirements for one or more of the following categories may be served under California special education law • specific learning disability (LD) • mental retardation (MR) • speech and/or language impaired (LSH or SLH) • emotional disturbance (ED or EBD) • orthopedic impairment • other health impairment (OHI) • visual impairment • deaf • hard-of-hearing • deaf-blind • multiple disabilities • autism • traumatic brain injury
    34. 34. Note!!!• These categories do not include gifted & talented children.• ADHD is not a learning disability or behavior disorder• Children w/ attention deficit-hyperactivity disorder: ä may be included in Other Health Impairment if their disorder is considered acute and/or chronic ä may also be served with a 504 plan• EBD was previously known as serious emotional disturbance (SED)
    35. 35. Designated Instructional ServicesA California term, encompasses two Federal terms: Related Services“Transportation and such developmental, corrective and other supportive services as may be needed to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.” Supplemental Aids and Services“Aids, services and other supports that are provided in regular education classes and other education-related settings to enable children with disabilities to be education with non- disabled children to the maximum extent appropriate...”
    36. 36. Designated Instructional Services• Audiology • Transportation• Speech and Language • Augmentative or Therapy Assistive Technology• Adaptive P.E. • Nursing Services• Physical Therapy • Transition Planning• Occupational Therapy • Supplementary• Counseling Materials
    37. 37. PL 101-336 of 1990 (ADA) non educational legislation• Passed because Section 504 was not sufficient to end discrimination for adults w/ disabilities• Guarantees access to all aspects of life-not just those which are federally funded (as with Section 504) to people w/ disabilities• Supports & extends Sec. 504 by providing adults w/ disabilities greater access to employment & participation in everyday activities
    38. 38. ADA (con’t)• Civil rights protection to individuals w/ disabilities similar to those provided to individuals based on race, color, sex, national origin, age, and religion. Also includes those with HIV and AIDS. Protects those with record of disability• Guarantees equal opportunity in public accommodations, employment, transportation, state and local government services, telecommunications• Requires new or remodeled public accommodations (e.g. hotels, stores, restaurants, banks, theaters) to be accessible.• Requires telephone companies to provide relay services for individual w/ hearing & speech impairments to use ordinary telephones.
    39. 39. ADA (con’t)• Prohibits discrimination in all employment practices: job application, hiring, firing, advancement, compensation, training, etc.• Employers w/ 15 or more employees covered by ADA• Must make reasonable accommodations ä Reasonable accommodation- modification or adjustment to a job or work environment enabling qualified applicant/employee w/ disability to participate in application process or perform job functions ä Includes adjustments to assure individual w/ disability has rights/ privileges equal to those employees with out disabilities
    40. 40. Examples of Reasonable Accommodations• Making existing facilities readily accessible and useable (access to job application, to perform essential functions to job such as access to building, work site, needed equipment, all facilities used by employees)• Restructuring a job• Modifying a work schedule• Acquiring or modifying equipment• Providing qualified readers or notetakers• Modifying exams, training, or other programs
    41. 41. Making Accommodations• Accommodations usually triggered by requests• Individual often suggests accommodations and made on individual basis• Unless disability impairs ability to know or communicate need for accommodation, employer usually does not need to make accommodation unless requested• If accommodation causes undue hardship, employer suggests alternative accommodation• Employer not required to make modifications until needed and not in area not used for employment purposes
    42. 42. ADA Public Accommodations• Public accommodations for private entities, which operate, place of public accommodations: e.g. restaurants, hotels, theaters, doctor’s offices, pharmacies, retail stores, museums, libraries, parks, private schools, day care centers. Day care centers & religious organizations are exempt.• All new fixed route transit buses must be accessible & supplementary para-transit services provided for those who cannot utilize fix route services• Telephone relay services required of deaf individuals (TTD)• Some tax credit may be available for businesses which incur expenses in modifications.• Accommodations not required if they will fundamentally change nature of services provided
    43. 43. The Concept of Reasonable• Key word the intent of ADA is “reasonable”• Restaurants need not have Braille menus, stores price tags in Braille, as long a someone can read it for customers• Barriers need not be removed unless readily achievable & the cost within reason. Resources are a factor.• What may be required: ramping of few steps, grab rails & bars, lowering of telephones
    44. 44. ADA Controversy• Individuals with disabilities complain that the law is not being implemented or enforced.• Some small business owners claim that ADA requires expensive accommodations that are never used.