Process Makes Perfect: How the Accommodation Process Supports Students with Disabilities and Safeguards Valuable College Resources
By Jessica High, Attorney and Bryce Young, Attorney, Duane Morris, LLP
The law regarding students with disabilities is relatively straightforward. Both the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”) apply to postsecondary institutions receiving federal financial assistance (“Title IV”). These regulations prohibit colleges from discriminating against prospective and current students with disabilities. They also require institutions to designate a Compliance Coordinator and engage in an interactive process to evaluate and provide reasonable accommodations(s) to students.
Simple enough, right? Well, maybe not. Since 2005, disability rights cases have increased by almost 395 percent.
Over the same time period, civil rights cases have decreased as a whole by 12 percent. In 2017, disability rights cases constituted 27 percent of all civil rights cases. Not to mention the exposure to an Office of Civil Rights investigation, the new reporting requirements under the Borrower Defense to Repayment regulation, and even a complete loss of Title IV eligibility.
If the law is straightforward, then why the rise of lawsuits? One likely culprit is that the facts of each accommodation request are rarely simple – they are unique, fluid, and sometimes undefined. Just like your students. Another is that students are becoming more sophisticated and knowledgeable of their rights – which is a good thing. Or that they are transposing the accommodation process from their K-12 years…a process that does not apply in the postsecondary education setting. A third is that states have incentivized personal lawsuits with things like attorneys’ fees provisions and minimum fines paid to a prevailing student. But the good news is that there is a simple solution that adapts the law to every set of facts imaginable (and beyond): process.
Following the same process for every student will always lead to the right result, no matter the facts or situation. While this may not immunize your institution from a complaint or lawsuit, following and documenting a process bolsters your defenses greatly. Beyond legal protection, following the process safeguards your college from deadweight loss due to redundancy (e.g., multiple staff dealing with the same accommodation request), unnecessarily lengthy investigations (e.g., interviewing each of those staff members about what was said to the student), and approving inappropriate accommodations (e.g., providing personal study aids, reducing academic standards).
All this while doing the morally and legally right thing of helping students with disabilities succeed. A fairly win-win solution if you ask us.
So, what do we mean by “process?” Well, first, a college needs the student to request an accommodation. Second, the student must be eligible for an accommodation. Third, the college needs to engage the student in the interactive process to determine the parameters of the accommodation. And, finally, the college needs to make a determination on the accommodation request. Let’s unpack each of these a little further.
1. Accommodation request
The process always starts with the student – a prospective or current student has the burden to request the accommodation. This is done to avoid inferring that a person with a disability has limitations that may not exist – many people who use wheelchairs have learned ways to maneuver to open a door without the need for a power-assisted door. Remember: assuming a person has a limitation based on preconceived notions relating to a disability is a form of discrimination. Avoid this by focusing solely on the particular student and his/her requested accommodations. The student is always free to make additional requests if/when they become necessary.
Typically, students disclose a disability to their admissions representative or an instructor.
It is imperative that all employees are trained to direct the student to the Compliance Coordinator for all disability accommodation issues.
Ensuring proper training will help a college avoid a situation where, for example, an untrained faculty member tells a student that the college does not provide accommodations.
Once the Compliance Coordinator and student connect, the student should be directed to complete a Request for Accommodations form (with a signature and date). Within the form, the student should identify the nature (not diagnosis) of his/her physical and/or mental impairment and the requested accommodation(s). The student is not required to fill out the exact form – form cannot beat function, but encouraging the student to fill out the form helps ensure all relevant information is collected as quickly and efficiently as possible.
2. Eligibility for an accommodation
Only students who have a disability are eligible for accommodations. A disability protected under the ADA and Section 504 is a physical or mental impairment which substantially limits one or more major life activity. Major life activities include seeing, hearing, eating, sleeping, walking, learning, thinking, etc. Basically, any function that is important to daily life. Cultural or economic disadvantage, sexuality, gender identity, personality traits and the use of illegal drugs (including marijuana, which is still illegal federally) do not impair major life activities.
If the student’s disability is obvious (such as a missing limb), then no medical documentation is typically required. However, if the student’s disability is not obvious (such as a reading impairment) and/or there is not a clear connection between the requested accommodation and the disability (such as requesting additional time on a test due to use of a wheelchair), then the college can require the student submit medical documentation supporting the accommodation. Note that institutions can place reasonable restrictions on the type of documentation they accept (e.g., the doctor must have a certain level of education, must be in the field relating to the disability, must have seen the patient in the past few years).
Many students will submit an Individualized Education Program (“IEP”) as supporting medical documentation. However, IEPs are vestiges of the K-12 education system, and are developed under different laws and rules than what applies to colleges. An IEP itself does not substantiate a disability. An IEP should only be accepted if it contains underlying medical documentation (conducted by a qualified professional) that meets the requirements of the accommodation policy.
3. Interactive process
Once an accommodation has been requested and the student has been found to be eligible, the Compliance Coordinator should engage the student in interactive communication to evaluate the request and supporting medical documentation. Topics to be discussed can include:
- Requesting additional documentation necessary to establish the student has a disability.
- Clarifying the connection between the requested accommodation and the impairment.
- Discussing possible alternative accommodations. Students are not entitled to the requested accommodation, only ones that ameliorate their impairment. Institutions are free to propose alternative accommodations that address the impairment, and the student can discuss why those alternatives will or will not work.
- Confirming the contours of the requested accommodation. Is it necessary at all times, or just certain times?
Colleges are never required to “guess” at an impairment or an accommodation – this is the time to flesh these things out with the student so all parties are on the same page. And, as always, remember that all correspondence should be documented and maintained in a confidential file, separate from the student’s educational file. Documentation is critical for clarity and defensibility.
A Compliance Coordinator should only move to the approval stage of the requested accommodation after he/she has determined (1) the student is disabled, (2) the student requested an accommodation with documentation (if necessary), and (3) the accommodation ameliorates the impairment. If any of those are unknown or untrue, then the Coordinator should revisit the interactive process to clarify or seek additional medical documentation. If the answer to any of those questions continues to be “no” (e.g., the student is not disabled) or the student refuses to engage in the interactive process, then the Coordinator has grounds for denying the accommodations.
Assuming the aforementioned grounds are met, colleges typically are required to grant accommodation requests unless they pose an undue burden or would fundamentally alter the program.
These are affirmative defenses, are factually intensive, and seldom clear cut. In general, colleges considering the undue hardship analysis should consider factors including the size of the institution, the corporate structure, the nature and cost of the accommodation needed, whether there would be an impact on composite score, etc. The more factors that show a heavy burden on the college’s finances, the more defensible a decision to deny the accommodation. However, colleges cannot utilize a cost/benefit analysis, nor can they deny an accommodation because the cost exceeds the tuition paid by the student. Similarly, a fundamental change in the program generally consists of requests to lower academic standards or substantially alter curriculum requirements. Colleges are also not required to provide personal aids for students to use outside of the classroom, such as a wheelchair, hearing aids, or reader for use at home.
The student should always receive a written decision. If an accommodation is granted, the Compliance Coordinator should inform the student in writing of the exact accommodations to be granted. If an accommodation is denied, the Compliance Coordinator must inform the student in writing of the reasons for denial, invite the student to address the reason for denial, and inform the student how to discuss and appeal the decision. Essentially, just because a college denies an accommodation does not mean the process is over. The college must continue the interactive process to determine if there is an alternative reasonable accommodation. Students should also always be encouraged to submit additional requests for accommodation if circumstances change. And remember, every interaction should be documented – in memos to the file, in email summaries to the student, in student information systems, etc.
Suggestions for policies
Colleges must have a written policy that informs applicants and students, as well as Coordinators, of the accommodation process. General requirements for these written policies include:
1. Stating the college does not discriminate on the basis of a disability.
2. Identifying a Compliance Coordinator. The Compliance Coordinator must be properly trained on the applicable laws and will serve as the main point of contact for students requesting accommodations (all student requests for accommodation(s) should be submitted directly to the Compliance Coordinator).
3. Notifying requesters of the requirement for supporting medical documentation for non-obvious disabilities. Note that institutions can place reasonable restrictions on the type of documentation they accept (e.g., the doctor must have a certain level of education, must be in the field relating to the disability, must have seen the patient in the past few years).
4. Notifying requesters of the internal grievance procedure for students to utilize if the student believes that he/she has been subjected to discrimination on the basis of their disability. Include any disagreements regarding requested accommodations. To ensure there is no conflict of interest, grievances should be submitted to a college official other than the Compliance Coordinator.
The college’s disability policy should be readily available. It should be published in the student catalog and on the college’s website. We also recommend identifying the Compliance Coordinator during new student orientation, educating students on who to contact to request an accommodation while in school.
As you are aware, approving or denying requested accommodations is case-specific. This is the intent and letter of the law. But the process remains the same for every request. Take the time to address each step, and do so in the proper order, and you will be rewarded with a thoughtful, documented, and rational outcome. In doing so, you will position your college to minimize litigation, avoid wasted resources, and serve your students to the fullest extent possible. In short, everybody wins.
Disclaimer: The contents of this article do not constitute legal or regulatory advice or counsel. No person or entity should act, or refrain from acting, on the basis of the information discussed herein without seeking individualized, professional counsel as appropriate.
JESSICA HIGH is an attorney at Duane Morris, LLP. Her practice focuses on counseling private sector colleges and universities in matters of state and federal regulation, accreditation compliance and advocacy, and student and employee disputes and concerns. Ms. High was previously a Campus Director and founder of a private allied health college branch campus location. She has over 17 years of experience in this sector, 10 years of which she spent employed by private sector colleges in their financial aid, admissions, accounting, student services, and human resources departments.
Contact Information: Jessica High // Associate Attorney // Duane Morris LLP // 619-744-2214 // JHigh@duanemorris.com // https://www.duanemorris.com
BRYCE YOUNG is a counseling and litigation attorney at Duane Morris, LLP, focusing on postsecondary education law. Mr. Young frequently advises on disability accommodation issues, student privacy concerns, and various contractual and employment disputes. As outside litigation counsel, Mr. Young represents his clients in all aspects and stages of litigation, including: individual student lawsuits; class action lawsuits; False Claims Act lawsuits; arbitration process; appellate briefing to various federal and state appellate courts; state agency administrative actions; government investigations; breach of contract litigation (e.g., third-party vendors); and national policy strategy.
Contact Information: Bryce Young // Associate Attorney // Duane Morris LLP // 619-744-2212 // BYoung@duanemorris.com // https://www.duanemorris.com