Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. A Testing Agency’s Response to the ADA Amendments Act

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, ETSAHEAD annual meeting, Seattle

July 15, 2011

Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved.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

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OFFICE OF DISABILITY POLICY(ODP)

ODP develops policies that help all ETSprograms decide how to accommodate testtakers 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

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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

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More ODP Tasks (cont’d)

• Oversee the work of 32 outside experts who review accommodations requests for ETS graduate and professional programs

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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/documents/ADAAA_Summary_of_Changes.pdf]

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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

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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

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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

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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.

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ETS Documentation ReviewImplications 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

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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)

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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.”

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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

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Trend: Preferred vs. equivalent accommodations

Enyart vs. National Conference of Bar Examiners,Inc. (9th Circuit, 2010)

• Legally blind test taker was determined to be entitled to use screen magnification software (ZoomText) and screen reader (JAWS) for exam

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Enyart vs. National Conference of Bar Examiners, Inc. (9th 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.

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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.

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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)

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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_adhd_update

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Provision of AccommodationsAdjustments/adaptations to postsecondaryacademic and non-academic experiences that seekto 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

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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 technologiesSome assistive technologies pose security,

construct, or technical compatibility issues.

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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.

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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.

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ETS ADHD Policy Statement

• Emphasizes importance of 1st-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

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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.

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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

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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

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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.

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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.

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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

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For additional information, please contact:

Loring Brinckerhoff, Ph.D. [email protected]

Ruth Loew, [email protected]

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Documents

Confidential and Proprietary. Copyright © 2011 Educational Testing Service. All rights reserved. A Testing Agency’s Response to the ADA Amendments Act