Legal Compliance: ADA Best Practices and Privacy Rights Erika Geetter, Esq. Boston University November 4, 2011
ADA Best Practices and Privacy Rights 4/24/2013 Laws that Relate to Students with Disabilities Section 504 of the Rehabilitation Act of 1973, (Section 504) 29 U.S.C.§794 Americans with Disabilities Act (ADA) 42 U.S.C. §12101, et. seq. Family Educational Rights and Privacy Act (FERPA ) 20 U.S.C. §1232g 2
ADA Best Practices and Privacy Rights 4/24/2013 Section 504 “ [n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. ” 29 U.S.C. § 794(a). 3
ADA Best Practices and Privacy Rights 4/24/2013 Title III of the ADA “ [n]o individual shall be discriminated against on the basis of 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). The definition of “ public accommodation ” includes all private colleges and universities. 42 U.S.C. § 12181(7)(J). 4
ADA Best Practices and Privacy Rights 4/24/2013 FERPA FERPA protects the privacy of education records by prohibiting disclosure and transfer of personally identifiable information contained in such records without consent — except in certain circumstances. 20 U.S.C. § 1232g 34 C.F.R. § 99.1 et seq . 5
ADA Best Practices and Privacy Rights 4/24/2013 Legal Requirements Section 504 and Title III prohibitions against discrimination includes requirement that colleges make academic adjustments, otherwise known as “ accommodations ” if necessary to ensure that students with disabilities are not denied a program benefit. Internal Grievance Procedure Compliance Officer Dr. Lorraine Wolf, Director of Disability Services http://www.bu.edu/disability/policies-procedures/additional- information/grievance-procedure-in-cases-of-alleged-discrimination/ 6
ADA Best Practices and Privacy Rights 4/24/2013 Enforcement of Legal Requirements Office for Civil Rights in U.S. Department of Education enforces Section 504 No requirement that student ’ s first file a complaint under the college ’ s internal grievance procedure Department of Justice is responsible for Title III enforcement Students alleging discrimination under Title III of the ADA may file a complaint with the Department of Justice or may proceed directly to federal court 7
ADA Best Practices and Privacy Rights 4/24/2013 Definition of Disability under Title III of the ADA and Section 504 A physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment 28 C.F.R. § 36.104 (Title III of ADA - implementing regulations) 8
ADA Best Practices and Privacy Rights 4/24/2013 Americans With Disabilities Act Amendments Act of 2008 (ADAAA) ADAAA took effect January 1, 2009. Goal of Congress is to increase the number of Americans who would be would be covered by the ADA ’ s protections. Broadens the definition of “ Disability. ” Adds additional “ major life activities ” that are particularly relevant to students at educational institutions. Overturns Supreme Court cases relied on by lower courts when finding that student plaintiffs were not “ disabled ” within the meaning of the ADA or Section 504. Codifies case law regarding an educational institution ’ s right to reject accommodations that constitute a “ fundamental alteration. ” 9
ADA Best Practices and Privacy Rights 4/24/2013 ADAAA: Additions to “ Major Life Activities ” Definition of “ mental impairment ” does not change – continues to be “ any mental or psychological disorder such as retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities. ” 28 C.F.R. § 36.104 List of “ major life activities ” previously included “ learning ” and “ working. ” ADAAA adds additional major life activities of “ reading, concentrating, thinking and communicating. ” 10
ADA Best Practices and Privacy Rights 4/24/2013 “ Major Life Activities ” of students Students have come up with a number of different activities reportedly limited by mental impairments such as learning disabilities. Cases have previously rejected narrow types of activity such as “ test taking ” or “ participation in intercollegiate sports ” as constituting major life activities. ” Given ADAAA ’ s mandate for “ broad coverage, ” courts may be more willing to find such activities constitute “ major life activities. ” 11
ADA Best Practices and Privacy Rights 4/24/2013 Past interpretation of “ Substantially limited ” for students with LD/ADHD Many courts have held that college and university students with LD/ADHD were not “ substantially limited ” because, even with impairments, they had a history of significant scholastic achievement and were able to read, write, and learn at least as well as the average person in the general population. 12
ADA Best Practices and Privacy Rights 4/24/2013 ADAAA: Changes to “ Substantially limits ” ADAAA states that “ the term ‘ substantially limits ’ shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008. ” Regulations under the ADAAA -- Issued by EEOC in May 2011 Impairment is a disability if it “ substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population ” Impairment “ need not prevent or significantly or severely restrict the individual from performing a major life activity in order to be considered substantially limiting. ” 29 CFR 1630.2 13
ADA Best Practices and Privacy Rights 4/24/2013 Appendix to 29 CFR Part 1630 – Interpretive Guidance: Congress rejects the assumption that an individual who has performed well academically cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking. ” Congress states that focus must on the nature of the limitation “ and not on what outcomes an individual can achieve. ” The regulations state: “ [f]or example, someone 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. ” 14
ADA Best Practices and Privacy Rights 4/24/2013 Otherwise qualified Both the ADA and Section 504 extend the prohibition on discrimination only to students who are “ otherwise qualified. A student with a disability is “ otherwise qualified ” if he or she is able to meet an educational program ’ s admission, academic, and technical standards with or without accommodations. 34 C.F.R. § 104.3(l). If, despite receiving accommodations, a student is unable to meet the institution ’ s academic or other requirements, he or she may be found “ not otherwise qualified. 15
ADA Best Practices and Privacy Rights 4/24/2013 Reasonable Accommodations Both Section 504 and the ADA require an institution to provide qualified students with disabilities “ reasonable accommodations. ” “ Reasonable accommodations ” are defined as “ reasonable modifications in policies, practices, or procedures ” that enable the student to take full advantage of the institution ’ s programs and activities. An institution can set forth standards for required documentation and procedures that must be followed through its Office of Disability Services 16
ADA Best Practices and Privacy Rights 4/24/2013 Single source for approval of accommodations If a student is seeking mental health services or academic advising services and it becomes clear that an accommodation for a disability may be needed, the clinician or academic administrator should direct the student to the disability services office or ask the student for permission to contact that office on the student ’ s behalf. If a student approaches a faculty member directly to request an accommodation without going through the disability services office, the student should be referred to the office – the faculty member should not informally grant accommodations. 17
ADA Best Practices and Privacy Rights 4/24/2013 Accommodations Process The accommodations process should be individualized and collaborative, with both the institution and the student working towards effective solutions that will assist the particular student. As part of this process, an institution may propose clinically supported accommodations that would be appropriate and useful for the student, but which neither the student nor the evaluator has requested. 18
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