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The Americans with Disabilities Act &
Section 504 of the Rehabilitation Act:
Obligations for Title IV Schools
Dennis Carie...
1
HOGAN MARREN, LTDDisclaimers
 The contents of these materials and the accompanying
discussion are for information purpo...
2
HOGAN MARREN, LTDIntroduction
Dennis Cariello:
 Shareholder and Co-Practice Group Leader in the Education
Group.
 Form...
3
HOGAN MARREN, LTDAgenda
1. Major Federal Laws on Disability Discrimination for
Title IV Schools
2. What is a Disability?...
4
HOGAN MARREN, LTD
Major Federal Laws on Disability
Discrimination for Title IV Schools
Americans with Disabilities Act (...
5
HOGAN MARREN, LTD
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701
et seq.
 1. Prohibits "any program or...
6
HOGAN MARREN, LTD
Section 504 (continued)
 2. Covered schools having more than 15 employees must
adopt "grievance proce...
7
HOGAN MARREN, LTD
Definition: "(1) a physical or mental impairment that
substantially limits one or more of the major li...
8
HOGAN MARREN, LTD
 “Impairment” “does not include physical characteristics
such as eye color, hair color, left-handedne...
9
HOGAN MARREN, LTD
"Substantially Limits"
 Individualized assessment (29 C.F.R. § 1630.2(j)(1)(iv).)
 An impairment tha...
10
HOGAN MARREN, LTD
Mitigating Measures
 The "determination of whether an impairment substantially
limits a major life a...
11
HOGAN MARREN, LTD
"Regarded As" Having a Disability
 A person is "regarded as" having a disability if the
individual "...
12
HOGAN MARREN, LTDWhat is a Disability?
Physical or Mental Impairment
Physiological disorder, contagious
disease, cosmet...
13
HOGAN MARREN, LTD
29 C.F.R. § 1630.2(j)(4)(iii): “[S]omeone with a learning disability may achieve a
high level of acad...
14
HOGAN MARREN, LTD
 Title I of the ADA: "[A]n individual who, with or without
reasonable accommodation, can perform the...
15
HOGAN MARREN, LTD
Under Section 504, a school must make "such modifications
to its academic requirements as are necessa...
16
HOGAN MARREN, LTD
Some Basic Requirements:
 Schools must have clearly defined policies & procedures
 Schools should i...
17
HOGAN MARREN, LTD
Accommodations Process:
 If a student wants an accommodation, she has an obligation
to provide notic...
18
HOGAN MARREN, LTD
• Focus should be on “whether accommodations are
reasonable . . . not on whether an individual meets ...
19
HOGAN MARREN, LTD
A Note on Confidentiality . . .
 A student’s disability is confidential information
 The student de...
20
HOGAN MARREN, LTD
Service Animals as Accommodations
 A "service animal" is a "dog that is individually trained
to do w...
21
HOGAN MARREN, LTD
Discipline and Leaves of Absence
 Students with disabilities must comply with all "essential"
academ...
22
HOGAN MARREN, LTD
Reasons for Denial:
 Student does not meet the definition of having a
disability
 Student is simply...
23
HOGAN MARREN, LTD
No accommodation required "if the entity can demonstrate that
taking such steps would fundamentally a...
24
HOGAN MARREN, LTD
 "Academic requirements that can be demonstrated by
the [school] to be essential to its program of
i...
25
HOGAN MARREN, LTD
Direct Threat
 Not required to "permit an individual to participate in or benefit
from the services,...
26
HOGAN MARREN, LTD
 Have procedures in place to deal with accommodation
requests
 Have an ADA/Section 504 Coordinator
...
27
HOGAN MARREN, LTDQuestions
Dennis M. Cariello
Hogan Marren
212-422-4900
Email us at:
Dennis.Cariello@HMLTD.com
Twitter:...
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The Americans with Disabilities Act & Section 504 of the Rehabilitation Act: Obligations for Title IV Schools

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This presentation discusses the various obligations of Title IV-eligible institutions of higher education with regard to the ADA and section 504.

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The Americans with Disabilities Act & Section 504 of the Rehabilitation Act: Obligations for Title IV Schools

  1. 1. The Americans with Disabilities Act & Section 504 of the Rehabilitation Act: Obligations for Title IV Schools Dennis Cariello Co-Chairman, Education Practice Private Colleges and Career Schools Conference
  2. 2. 1 HOGAN MARREN, LTDDisclaimers  The contents of these materials and the accompanying discussion are for information purposes only and do not constitute legal or regulatory advice.  No party should act or refrain from acting on the basis of any statements made today without seeking individualized, professional counsel as appropriate.  These materials and the accompanying discussion are primarily focused on certain aspects of Title IV requirements and are not intended to be comprehensive of all Title IV requirements applicable to all educational agencies and institutions.
  3. 3. 2 HOGAN MARREN, LTDIntroduction Dennis Cariello:  Shareholder and Co-Practice Group Leader in the Education Group.  Former Deputy General Counsel for Postsecondary Education in US Department of Education (DoED)  Former Deputy Assistant Secretary for Enforcement in the DoED’s Office for Civil Rights (OCR)  Formerly the Chair of Regulatory Strategies in Education Group of AmLaw 100 Law Firm.  Extensive knowledge of Title IV of the Higher Education Act and Civil Rights Laws.  Handles transactional, regulatory, government relations, civil rights privacy and litigation matters.  Education Group features Charlie Rose, former General Counsel of DoED, Pat Edelson, former program review specialist
  4. 4. 3 HOGAN MARREN, LTDAgenda 1. Major Federal Laws on Disability Discrimination for Title IV Schools 2. What is a Disability? 3. Who is Protected? 4. Accommodating Students with Disabilities 5. Reasons not to Accommodate Students with Disabilities
  5. 5. 4 HOGAN MARREN, LTD Major Federal Laws on Disability Discrimination for Title IV Schools Americans with Disabilities Act (42 U.S.C. §§ 12101 et seq.)  1. Title I ("Employment") applies to covered entities including employers with 15 or more employees. (42 U.S.C. § 12111; 29 C.F.R. § 1601.2.)  2. Title III ("Public Accommodations") applies to public and private universities as entities providing public accommodations. (42 U.S.C. § 12182; 28 C.F.R. § 36.102.)  (a) "No individual shall be discriminated against on the basis of a 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); 28 C.F.R. § 36.201(a).)
  6. 6. 5 HOGAN MARREN, LTD Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq.  1. Prohibits "any program or activity receiving federal financial assistance" from discriminating against an individual because of his or her disability. (29 U.S.C § 794(a).)  (a) "Program or activity" includes "all of the operations" of a "college, university, or other postsecondary institution, or a public system of higher education." (29 U.S.C § 794(b)(2).)  (b) A "recipient" of federal financial assistance includes any organization or person "to which Federal financial assistance is extended directly or through another recipient." (34 C.F.R § 104.3(f).) Major Federal Laws on Disability Discrimination for Title IV Schools
  7. 7. 6 HOGAN MARREN, LTD Section 504 (continued)  2. Covered schools having more than 15 employees must adopt "grievance procedures that incorporate appropriate due process standards and that provide prompt and equitable resolution of complaints alleging any action prohibited by [Section 504].“ (34 C.F.R. § 104.7(b).)  3. Covered schools must also have a "504 Coordinator“ to coordinate the school's "efforts to comply with [Section 504 and the accompanying regulations.]" (34 C.F.R. § 104.7(a).) OCR is responsible for enforcing Section 504 and the ADA. Major Federal Laws on Disability Discrimination for Title IV Schools
  8. 8. 7 HOGAN MARREN, LTD Definition: "(1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment." 42 U.S.C. § 12102(1).  “Physical impairment“: any "physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more” bodily systems. 29 C.F.R. § 1630.2(h)(1).  “Mental impairment" includes "any mental or psychological disorder." 29 C.F.R. § 1630.2(h)(2). What is a Disability?
  9. 9. 8 HOGAN MARREN, LTD  “Impairment” “does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within 'normal' range and are not the result of a physiological disorder" or "characteristic predisposition to disease."  "[A]n impairment also does not include common personality traits such as poor judgment or a quick temper, when they are not symptoms of a mental or psychological disorder.“ (Section 1630.2(h), 29 C.F.R. § 1630.) ADA Amendments Act of 2008:  Definition of disability “shall be construed in favor of broad coverage… to the maximum extent permitted by the terms of this Act.” 42 U.S.C. § 12102(4)(A). What is a Disability?
  10. 10. 9 HOGAN MARREN, LTD "Substantially Limits"  Individualized assessment (29 C.F.R. § 1630.2(j)(1)(iv).)  An impairment that substantially limits one major life activity does not have to also limit other major life activities. "Major Life Activities"  Nonexclusive list – includes most things you do every day (caring for oneself; seeing; hearing; eating; sleeping; walking; thinking; and working." 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(h)(2)(i).  May be “episodic” or “in remission” (42 U.S.C. § 12102(4)(D).)  EEOC: "a person with posttraumatic stress disorder who experiences intermittent flashbacks to traumatic events is substantially limited in brain function and thinking." What is a Disability?
  11. 11. 10 HOGAN MARREN, LTD Mitigating Measures  The "determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures." 42 U.S.C. § 12102(4)(E)(i).  Mitigating measures include "medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies." 42 U.S.C. § 12102(4)(E)(i)(I); 29 C.F.R. § 1630.2(h)(5)(i).  Exception: ordinary eyeglasses or contact lenses What is a Disability?
  12. 12. 11 HOGAN MARREN, LTD "Regarded As" Having a Disability  A person is "regarded as" having a disability if the individual "establishes that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." 42 U.S.C. § 12102(3)(A).  Student believed to have AIDS because spouse has AIDS  An entity need not provide a reasonable modification of policies, practices, or procedures to individuals who meet the definition of disability solely because they are “regarded as” having a physical or mental impairment.  Such individuals would be entitled to protection from discrimination, including but not limited to protection from retaliation and harassment on the basis of disability. What is a Disability?
  13. 13. 12 HOGAN MARREN, LTDWhat is a Disability? Physical or Mental Impairment Physiological disorder, contagious disease, cosmetic disfigurement or anatomical loss in one or more system: • Neurological • Musculoskeletal • Respiratory • Cardiovascular • Reproductive • Digestive • Bowel • Genito-urinary • Hemic and Lymphatic • Skin • Endocrine • Immune System • Normal Cell Growth • Bladder • Reproductive Functions Mental or psychological disorder including: • Mental retardation • Organic brain syndrome • Emotional or mental illness • Specific learning disabilities • Substance Abuse (recovering alcoholic or addict)* Major Life Activities • Self-care • Manual tasks • Walking • Seeing • Hearing • Speaking • Breathing • Sitting • Standing • Reaching • Thinking • Concentrating • Reading • Communicating • Interacting with others • Learning • Working • Eating • Sleeping • Lifting • Bending
  14. 14. 13 HOGAN MARREN, LTD 29 C.F.R. § 1630.2(j)(4)(iii): “[S]omeone 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.” 29 C.F.R. § 1630.2(j)(1)(v) Appendix A: “Individuals diagnosed with . . . learning disabilities will typically be substantially limited in performing activities such as learning, reading, and thinking when compared to most people in the general population, particularly when the ameliorative effects of mitigating measures, including therapies, learned behavioral or adaptive neurological modifications . . . studying longer, or receiving more time to take a test, are disregarded as required under the ADA Amendments Act.” What is a Disability? Record of Impairment Regarded Impairment The individual has: • A history of impairment A record of having been misclassified as having an impairment The individual has: • An impairment not limiting a major life activity, but treated as disabled by the covered entity • No impairment, but treated as disabled by the covered entity
  15. 15. 14 HOGAN MARREN, LTD  Title I of the ADA: "[A]n individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).  Title III of the ADA: Students with disabilities have the right to the same "goods, services, facilities, privileges, advantages, and accommodations" as nondisabled students, in the "most integrated setting appropriate to [their] needs." 42 U.S.C. § 12182(b)(1)(B).  A student must meet the "academic and technical standards" required for admission or participation with or without reasonable accommodation. 42 U.S.C. § 12131(2); 28 C.F.R. § 35.104.  Section 504: An "individual with a disability" as defined under the ADA is protected. 29 U.S.C. § 705(20)(B). Who is Protected?
  16. 16. 15 HOGAN MARREN, LTD Under Section 504, a school must make "such modifications to its academic requirements as are necessary to ensure that such requirements to not discriminate or have the effect of discrimination on the basis of handicap." 34 C.F.R. § 104.44(a).  Types of modifications can include:  Changes in the length of time permitted for the completion of degree requirements  Substitution of specific courses  Additional time to move from class to class  Extended time on tests  Allowing a tape recorder for lectures  Preferential seating in class Accommodating Students with Disabilities
  17. 17. 16 HOGAN MARREN, LTD Some Basic Requirements:  Schools must have clearly defined policies & procedures  Schools should implement policies consistently when handling accommodations requests and complaints  Schools must provide:  notice of nondiscrimination  notice of 504/ADA Coordinator  notice of 504/ADA grievance procedures  notice of how to obtain academic adjustments and auxiliary aids Accommodating Students with Disabilities
  18. 18. 17 HOGAN MARREN, LTD Accommodations Process:  If a student wants an accommodation, she has an obligation to provide notice to the institution of a qualifying disability and the need for the accommodation.  Must have a documented disability and limitations  Request must be sufficiently direct and specific  Process must spell out who decides these issues?  Process should seek input from person making request and from the student’s medical provider  Policies should specify procedures (including for discrimination complaints)  Procedures should require documentation of all decisions Accommodating Students with Disabilities
  19. 19. 18 HOGAN MARREN, LTD • Focus should be on “whether accommodations are reasonable . . . not on whether an individual meets the definition of ‘disability.’” • Disability determinations “should not demand an extensive analysis” • Types of generally accepted documentation: • Recommendations of qualified professionals familiar with the individual • Results of professional evaluation • History of diagnosis • Observations by educators • Past use of accommodations. Accommodating Students with Disabilities
  20. 20. 19 HOGAN MARREN, LTD A Note on Confidentiality . . .  A student’s disability is confidential information  The student decides how much information to share  You may Issue a request for accommodation without giving a student’s name  Faculty must avoid inadvertent disclosure  ADA allows a separate cause of action for breach of confidentiality Accommodating Students with Disabilities
  21. 21. 20 HOGAN MARREN, LTD Service Animals as Accommodations  A "service animal" is a "dog that is individually trained to do work or perform task for the benefit of an individual with a disability." 28 C.F.R. § 35.104; 28 C.F.R. § 36.104.  Under Section 504, a school may not prohibit "dog guides" in campus buildings. 34 C.F.R. § 104.44(b).  Check state law – it may be broader  Comfort Animals Accommodating Students with Disabilities
  22. 22. 21 HOGAN MARREN, LTD Discipline and Leaves of Absence  Students with disabilities must comply with all "essential" academic standards and requirements  “An institution may not dismiss or sanction a student with a disability for behavior that it does not sanction when undertaken by students who are not disabled.” 34 C.F.R. § 104.43.  Disability is pertinent to whether there are grounds to “mitigate the penalty for violation of the code of conduct or engaging in an act that represents a direct threat to him/herself."  A school cannot discipline a student for behavior that violates the rules of conduct if the student's inability to comply is due to the School's failure to provide reasonable accommodation. Accommodating Students with Disabilities
  23. 23. 22 HOGAN MARREN, LTD Reasons for Denial:  Student does not meet the definition of having a disability  Student is simply not qualified even with accommodations  Behavior and conduct issues:  Student violates campus conduct requirements  Student does not meet attendance requirements  Student is disruptive – interferes with educational experience of others  Student is dangerous – threatening to others (or self?) Reasons for Not Providing Accommodations
  24. 24. 23 HOGAN MARREN, LTD No accommodation required "if the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden." 42 U.S.C. § 12182(b)(2)(A)(iii). Undue burden: significant difficulty or expense. 28 C.F.R. § 36.104. Fundamental Alteration  Where the 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." 42 U.S.C. § 12201(f). Reasons for Not Providing Accommodations
  25. 25. 24 HOGAN MARREN, LTD  "Academic requirements that can be demonstrated by the [school] to be essential to its program of instruction or to particular degrees need not be changed." 34 C.F.R. § 104  DOJ Guidance: "modification so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered".  Schools are entitled to deference when exercising professional judgment about academic requirements and fundamental alteration issues.  "Essential functions" are "the fundamental job duties of the employment position the individual with a disability holds or desires." 29 C.F.R. § 1630.2(n)(2). Reasons for Not Providing Accommodations
  26. 26. 25 HOGAN MARREN, LTD Direct Threat  Not required 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." 28 C.F.R. § 35.139(a).  Student poses a “direct threat”, a “significant risk” of substantial harm or to the student or to others that cannot be eliminated or reduced by reasonable accommodation.  Direct threat requires a high probability of substantial harm and not just a slightly increased, speculative, or remote risk.  Consider: (1) the duration of the risk, (2) the nature and severity of risk, (3) the likelihood that the potential harm will occur, and (4) the proximity of the potential harm.  PROVIDE DUE PROCESS Reasons for Not Providing Accommodations
  27. 27. 26 HOGAN MARREN, LTD  Have procedures in place to deal with accommodation requests  Have an ADA/Section 504 Coordinator  Keep records – develop a form for requests  Issues with online learning (OCR May 26th 2011 Dear Colleague Letter)  Privacy in this context is important Some Practical Considerations
  28. 28. 27 HOGAN MARREN, LTDQuestions Dennis M. Cariello Hogan Marren 212-422-4900 Email us at: Dennis.Cariello@HMLTD.com Twitter: @educounsel

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