Legal Compliance: ADA Best

Practices and Privacy Rights

Erika Geetter, Esq.

Boston University

November 4, 2011

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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

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).

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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).

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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.

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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/

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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

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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)

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.”

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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.”

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“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.”

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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.

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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

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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.”

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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.

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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

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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.

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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.

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Limits on Obligation to Provide Accommodations

Accommodations are not required if they would:

(a) result in a fundamental alteration to the

services being provided;

(b) compromise academic requirements that are

essential to the program of instruction being

pursued or to any directly related licensing

requirement; or

(c) impose an undue burden on the institution.

28 C.F.R.§36.303; 34 C.F.R.§104.44(a);

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Types of Accommodations

Auxiliary aids and Services

For students with impaired sensory,

manual, or speaking skills

Interpreters, audio recordings,

notetakers

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Adjustments to Academic or Degree Programs

Changes to Classroom Polices

Tape recorders, attendance requirements

Changes to the Manner in Which Courses or

Examinations are Conducted Extra time for exams, distraction free environment, use of

spellchecker or calculator

Changes to Degree Program Length of time for program completion, substitution of specific

required courses, adaptation of course requirements

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Fundamental Requirements:

ADAAA reiterates:

Reasonable modifications in policies, practices, or

procedures shall be required, unless an entity can

demonstrate that making such 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.

Dismissal of Students with Disabilities

Because institutions are not required to lower

standards or make fundamental alternations to their

programs, students with disabilities who are unable to

meet minimum GPA requirements or pass courses or

examinations required for continued participation in an

academic program may be dismissed.

Institution must apply its academic standards in a

nondiscriminatory manner

Appropriate accommodations (if requested) should have been

provided,

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Raising Disability During the Dismissal Process

Dean or Committee reviewing dismissal should consider:

whether institution provided accommodations (if any) that

were requested by the student while enrolled;

whether, under the institution’s general rules regarding

dismissal, the disability should be considered a mitigating

factor (similar to any other mitigating factor) that would affect

the dismissal decision.

If a student is requesting accommodations for the first time (or

requesting additional accommodations), the committee may want

to consult with the disability services office to determine whether

accommodations, if provided, would likely allow the student to

succeed academically in the future.

Note: The disability does not entitle the student to readmission

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Dismissal due to Misconduct

Student may claim that inability to conform to the

university’s code of conduct (such as prohibitions on

plagiarism and cheating) is disability-related and that

he/she should either not be held responsible or should

be accommodated by not being punished for

transgressions.

In general, institutions are not required to tolerate

misconduct by students with disabilities, even if the

misconduct is related to the student’s underlying

disorder, provided that the student has not been

refused reasonable accommodations that would have

prevented the misconduct from taking place.

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Psychiatric Disorders and Students at Risk

to Self or Others

Nondiscrimination and accommodation mandates of

the ADA and Section 504 do not apply to an individual

whose participation in a program would constitute “a

direct threat to the health or safety of others.”

Direct threat means a significant risk to the health or

safety of others that cannot be eliminated by a

modification of policies, practices, or procedures, or by

the provision of auxiliary aids or services

28 C.F.R.§ 36.104.

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Determining Direct Threat

Determination is an “individualized assessment,

based on reasonable judgment that relies on current

medical knowledge or on the best available objective

evidence, to ascertain: the nature, duration, and

severity of the risk; the probability that the potential

injury will actually occur; and whether reasonable

modifications of policies, practices, or procedures or

the provision of auxiliary aids or services will mitigate

the risk.”

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Students With a Disability Whose Behavior

Poses a Risk to Others

Disciplinary process is an option as long as it is

applied evenhandedly and is not based on

assumptions and stereotypes about the disability.

May be preferable to deal with the student through

medical intervention rather than disciplinary process.

Goal is for student to receive appropriate treatment so

that undesired behavior ceases and student can

continue or resume studies.

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Treatment for the Student

Preferable to request that student voluntarily seek

psychiatric help or, if necessary, agree to a temporary

withdrawal from the institution.

School should mandate counseling or treatment only

when this requirement is presented as an alternative

to the disciplinary process or when it can be imposed

as a condition of returning to the campus after a

disciplinary suspension.

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Treatment for the Student (cont.)

Focus of psychiatric review is to determine whether

student can return to housing or the classroom without

posing a danger to others.

Results of this review should be reviewed by mental

health providers, the dean of students, campus police,

and ODS.

If student is allowed to return, university may put

conditions on the return:

Ongoing counseling;

Permission for student’s mental health provider to

communicate with appropriate staff at the university regarding

the student’s progress.

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Students Whose Behavior Poses a Risk to

Themselves

University policies regarding treatment of students at

risk of harming themselves must be formulated against

the backdrop of the antidiscrimination requirements of

the ADA.

In an emergency situation, the decision of whether a

student experiencing a mental health crisis should be

involuntarily hospitalized should be made by campus

mental health professionals

Use of disciplinary procedure should be a last resort

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Reaction to Concerns re Liability

Shin v. MIT (2005)

As a result of cases in which universities were sued by

parents whose children committed suicide or

otherwise harmed themselves, some institutions

began to treat threats of self-harm as per se

disciplinary violations or a basis to place a student on

involuntary leave without an individualized

assessment.

OCR has found such policies to be discriminatory

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Involuntary Medical Leave

Withdrawal of a student from housing or involuntary

medical leave of absence should occur only after an

individualized assessment that there is a significant

risk that the student will harm himself and that risk

cannot be eliminated through accommodations.

Decisions regarding student’s ability to return to

classes or to the dormitory should be made in

consultation with mental health professionals and not

solely by administrators.

Ensure due process for the student/right to be heard

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FERPA

Records of students with disabilities, whether held at

the disability services office, the dean of students

office, or elsewhere on campus, are generally

governed by the Family Educational Rights and

Privacy Act (FERPA), which 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.

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Definition of Education Records

“Education records” are defined in FERPA as

information directly related to a student and

maintained by an educational institution.

Education records held at a disability services office

include not only records generated by that office and

relating to services provided to the university, but also

all medical records received from the student’s own

health care providers in connection with the process of

requesting reasonable accommodations.

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Communications from Disability Services

FERPA allows disclosure of information within the

institution to school officials with a “legitimate

educational interest.”

As a rule, without a student’s consent, Disability

Services should not provide information about a

student’s specific diagnosis or medical information

supporting that diagnosis to faculty members or

academic administrators.

As part of the accommodations process, Disability

Services may need to disclose additional information

to the faculty member about the nature of the student’s

limitations – consent should be obtained first.

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Communications about a Troubled Student

FERPA does not prohibit faculty or academic administrators from

contacting the Dean of Students or Behavioral Medicine to

discuss concerns about a student’s mental health.

An exception to FERPA’s nondisclosure requirement also allows

an institution to disclose information to appropriate parties

(including parents) in connection with an emergency when

necessary to protect the health or safety of the student or others.

Disclosure is allowed if there is an articulable and significant

threat to health or safety; disclosure must be to someone whose

knowledge of the information is necessary to protect against the

threat.

As long as there was a rational basis for the determination, the

Department of Education will not substitute its judgment for that of

the educational institution.

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Behavioral Medicine Records

Disclosure of information contained in a student’s

medical records held by campus mental health

providers may be governed by the Health Insurance

Portability and Accountability Act (HIPAA), and is

governed by state laws concerning medical records,

obligations of psychotherapists or other clinicians, or

professional codes of ethics.

These laws and rules generally prohibit disclosure of

information without the student’s consent.

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Campus Resources

Office of Disability Services

Office of the General Counsel

Behavioral Medicine

Dean of Students

Don’t be afraid to ask for guidance!

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