Slide 1

How to Ensure the Law Wont Come Knocking Presented by:Amy Benya and Seth Larsen

What you should expect to learn from todays training. 1

AuthoritySection 504 of the Rehabilitation Act of 1973Americans with Disabilities Act (as amended)2008 AmendmentCollege/University DutiesNotice of ServicesProviding AccommodationsConfidentialityStudent DutiesRequesting AccommodationsDocumentationStudent Rights & ResponsibilitiesEmerging IssuesWeb Accessibility Service AnimalsPower Driven Mobility Devices

Presentation Overview

What you should expect to learn from todays training. 2

I. Authority

3

Section 504 of the Rehabilitation Act of 1973

Title 29 US Code 794

Prohibits all programs or activities receiving federal financial assistance from excluding or discriminating against disabled individuals who are otherwise qualified to participate in those programs or activities.

Section 504 is enforced by the Office for Civil Rights (OCR).

4

B. Americans with Disabilities Act42 U.S. Code 12101

The ADA is a piece of civil rights legislation that enacted a comprehensive plan to eliminate discrimination against disabled individuals.

The ADA extends protections offered by Section 504, by covering entities that are not funded by federal financial assistance. Title II of the ADA prohibits all state and local governmental entities, including public colleges and universities, from discriminating against people with disabilities.

The ADA is enforced by federal agencies, including the Department of Justice, Department of Labor, and the Equal Employment Opportunity Commission (EEOC).

5

C. ADA 2008 AmendmentsSigned into law by PresidentGeorge W. Bushon September 25, 2008, the ADAAA was a response to a number of decisions by theSupreme Courtthat had interpreted the original text of theADA. Because members of the U.S. Congress viewed those decisions as limiting the rights of persons with disabilities, the ADAAA explicitly reversed those decisions. It also rejected portions of the regulations published by theEqual Employment Opportunity Commission(EEOC) that interpret Title I (the employment-related title) of the ADA. The ADAAA makes changes to the definition of the term "disability," clarifying and broadening that definitionand therefore the number and types of persons who are protected under the ADA and other Federal disability nondiscrimination laws. It was designed to strike a balance between employer and employee interests.The ADAAA requires that courts interpreting the ADA and other Federal disability nondiscrimination laws focus on whether the covered entity has discriminated, rather than whether the individual seeking the law's protection has an impairment that fits within the technical definition of the term "disability." The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment. However, it changes the way that the statutory terms should be interpreted.

6

II. Institutions Duties

7

A. NoticeInstitutions must apprise individuals of the protections against discrimination assured them by the ADA.

8

B. ProvidingAccommodationsSection 504 and the Americans with Disabilities Act requires institutions to provide reasonable accommodations for qualified disabled persons.

9

Who is a qualified individual? Qualified individuals with disabilities are eligible to receive reasonable accommodations.

A "qualified individual with a disability" is an individual with a disability who, with or without reasonable modifications to policies, practices or procedures, the removal of architectural, communication or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the institution.

10

What is a disability?A disability is any physical or mental impairment that substantially limits a major life activity.

Now includes individuals regarded as disabled or having a record of being disabled.

The salient question is if the impact of the condition for the particular individual constitutes a disability.

28 CFR 36.104; 34 CFR 104.3.(j)(2)(i)

The rules for what qualifies as substantially limiting have changed. To be substantially limiting a disability need not significantly or severely restrict or prevent a major life activity. The standard is broadly construed to provide more coverage to students.

When applying this standard you compare an individuals limitation to the ability of an ordinary person in society. This can be compared through condition, manner or duration that of which a person in the general population would experience in a major life activity.

11

What is NOT a disability?Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;Compulsive gambling, kleptomania, or pyromania; orPsychoactive substance use disorders resulting from current illegal use of drugs.A transitory impairment that lasts less than 6 months.

28 CFR 36.104, 42 USC 12102,ADA Amendments Act of 2008, Section 3 (3)(B)

The rules for what qualifies as substantially limiting have changed. To be substantially limiting a disability need not significantly or severely restrict or prevent a major life activity. The standard is broadly construed to provide more coverage to students.

When applying this standard you compare an individuals limitation to the ability of an ordinary person in society. This can be compared through condition, manner or duration that of which a person in the general population would experience in a major life activity.

12

Recent Case Law on disabilityTylicki v. St. Onge, 297 Fed. Appx 65, 38 NDLR 50 (2d Cir. 2008) (The court upheld dismissal of the students lawsuit as it failed to allege how former students mental impairment substantially limited a major life activity)

Carten v. Kent State University, 78 Fed. Appx. 499, 27 NDLR 8 (6th Cir. 2003) (The court ruled that the student failed to establish that he had a learning disability. He had no diagnosis and no history of using accommodations in undergraduate program, despite receiving therapies in high school)

The rules for what qualifies as substantially limiting have changed. To be substantially limiting a disability need not significantly or severely restrict or prevent a major life activity. The standard is broadly construed to provide more coverage to students.

When applying this standard you compare an individuals limitation to the ability of an ordinary person in society. This can be compared through condition, manner or duration that of which a person in the general population would experience in a major life activity.

13

Recent Case Law on disabilityEmerson v. North Idaho College, 106 LRP 66423 (D. Idaho 2006) (The court ruled that a former students claim that nursing program discriminated against her based on her hearing loss fails as student did not have her hearing evaluated as recommended, explain why such loss was not subject to mitigation and did not consult with disability services until after her dismissal)

Brown v. University of Cincinnati, No. C-1-04-164, 105 LRP 23835 (S.D. Ohio, June 3, 2005) (A former student whose academic history was stellar until medical school failed to establish that his reading disorder and generalized anxiety disorder substantially limited his ability to learn in comparison with most people in the general population).

The rules for what qualifies as substantially limiting have changed. To be substantially limiting a disability need not significantly or severely restrict or prevent a major life activity. The standard is broadly construed to provide more coverage to students.

When applying this standard you compare an individuals limitation to the ability of an ordinary person in society. This can be compared through condition, manner or duration that of which a person in the general population would experience in a major life activity.

14

Recent Case Law on disabilitySteere v. George Washington University School of Medicine, 2007 WL 3230173 (D.C.Cir. Oct 23, 2007). In 2007, test anxiety, personal struggles, lack of attention to detail, poor studying habits, lack of motivation, poor health, and insufficient time devoted to studying could explain poor performance but were determined to NOT be a disabilityThe cause was due to temporary circumstances rather than a lifelong disability that has impaired, and continues to impair, students ability to perform in academic environmentsPrior to this, student had repeatedly excelled and was quite able to succeed in the major life activity of learning, including test taking in general.A mere diagnosis (ADHD) was not enough to establish a disabilityStudent must show the extent of the limitation in the terms of their own experience

The rules for what qualifies as substantially limiting have changed. To be substantially limiting a disability need not significantly or severely restrict or prevent a major life activity. The standard is broadly construed to provide more coverage to students.

When applying this standard you compare an individuals limitation to the ability of an ordinary person in society. This can be compared through condition, manner or duration that of which a person in the general population would experience in a major life activity.

15

What is a MajorLife Activity?A major life activity can be nearly anything an ordinary person would do in their daily life; however, it is not limited to only activities that are centrally important to daily living.

This includes, but is not limited to:

Major life activities can also be operations of major bodily functions, including:

28 CFR 36.309; 34 CFR 104.3(j)(2)(ii)Caring for oneselfPerforming manual tasksSeeingHearingWalkingLiftingBendingBreathingLearningConcentratingCommunicatingWorkingReadingEating

Immune systemRespiratory systemDigestive systemReproductive systemNeurological functionBrain functionBowel functionBladder function

16

Mitigating Measures: Forget about it!However, when evaluating whether a student is substantially limited in their ability to engage in a major life activity, an institution of higher learning may not take into account how the use of "mitigating measures" might reduce the degree to which the impairment is limiting. A mitigating measure is a device or practice that is used on their own to reduce or eliminate the effects of the impairment. Examples of mitigating measures include, but are not limited to:medication; medical supplies, equipment, or appliances; low-vision devices (devices that magnify, enhance or otherwise augment a visual image, excluding 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; use of assistive technology;use of a job coach, personal assistants or service animals;surgical interventions (such as a tracheotomy or insulin pump);reasonable accommodations or auxiliary aids or services; orcompensatory strategies (i.e., learned behavioral or adaptive neurological modifications) to "work around" the impairment, such as taking extra time to study to compensate for a learning disability

Mitigating Measures: Eyeglass ExceptionThe one exception to this rule is the use of "ordinary eyeglasses or contact lenses." The ADAAA expressly requires consideration of the ameliorative effects of "ordinary eyeglasses or contact lenses" when assessing whether impairment substantially limits a major life activity. This means that when determining whether a person is substantially limited in the major life activity of seeing, the person's vision should be assessed in its corrected state when using such eyeglasses or contact lenses.ADAA SEC. 4. DISABILITY DEFINED AND RULES OF CONSTRUCTION (a)(4)(E)(i)

What is a Reasonable Accommodation?An accommodation allows a qualified individual with a disability to participate as fully as possible in a program or class or enjoy the rights and privileges offered.

An accommodation is reasonable if providing it would not fundamentally alter the nature of the service, program, or activity, or otherwise place an undue burden on the institution.

19

Considering Reasonable AccommodationsDisabilityHistoryExperienceRequestUnique characteristics of course/program/job

Accommodations that would constitute a fundamental alteration will not be reasonable

****Update w/ policy there is a section that lists all of these****20

Examples of Reasonable AccommodationsNote takersTape recordersTranscription servicesWritten materialsTaped textsAdaptive equipmentReadersExtended test timeAlternative test locationInterpretersCaptioningBraille materialsLarge print

****Update w/ policy there is a section that lists all of these****21

Accommodations Likely to be grantedTime and a half to double time on examinationsModerately reduced course loadsExtra time to complete course loads to the extent curricular continuity is not impairedLimited leaves of absence for medical treatment and recoveryRegistration assistanceAssistance in applying for financial aidClassroom modifications (preferential seating, taping, and note-taking assistance)Structural modifications for handicap accessChanging test formats Priority in parking for students with mobility impairments and certain psychological disabilities

****Update w/ policy there is a section that lists all of these****22

Accommodations Less Likely to be grantedMore than double time on examinationsLong-term leaves of absenceCourse substitution or waiverReduced participation and attendance in classroom

****Update w/ policy there is a section that lists all of these****23

Accommodations Unlikely to be grantedUnlimited time for examinationsUnlimited time for degree completionUnlimited leaves of absencePermission to entirely avoid attendance expectations applied to students in generalReassignment to another teacherProvision of examinations or instructional services off-campus except when generally provided to studentsIndividualized instruction or tutoring except when commonly provided to studentsRestructuring of the curriculum to address the students individual learning style

****Update w/ policy there is a section that lists all of these****24

Accommodations that will NOT be grantedDirect Threat to the Health or Safety of Others

An accommodation is not reasonable if it poses a direct threat to the health or safety of others. In order to establish a direct threat, the institution must be able to document a substantial risk of significant harm. Concern about direct threat arises most frequently in relation to allied health and professional programs in which the students ability to provide safe and appropriate quality care is questioned. It should be noted that the mere existence of a disability does not provide evidence of direct threat. Nor does the possibility of a difficulty arising constitute a substantial risk of significant harm. While an institution may be able to make a case for direct threat in the instance of a deaf nurse or early childhood education major with limited vision, it would be a hard argument to make for these same students in an English or Philosophy class.

It is important to note that under the ADA the direct threat must be to someone else. The individual with a disability has a right to choose to assume the risk to self in the same way that anyone else who participates chooses to assume that risk. A blind individual could not be denied participation in a hiking class that covers rough terrain because of a fear that he/she might trip and fall, but it might be appropriate to deny participation to this individual in a scuba diving class in which participants are paired up and responsible for monitoring each others safety through the visual inspection of valves and gauges

Case by Case ConsiderationNever say never!

We never make exceptions is almost certainly a violation of the ADA.

If it is a rule the institution made, then it might be modified within reason.

****Update w/ policy there is a section that lists all of these****26

Interactive Process is Key!Hartnett v. Fielding Graduate Institute, 33 NDLR 130 (2nd Cir. 2006) (The Second Circuit remanded the case to the lower court to determine whether there was an interactive process for student accommodations; a reasonable jury could conclude that institution failed to engage in good faith with Ph.D. student diagnosed with Lupus).

Mesabi Range Community and Technical College (MN), Case No. 05-04-2081, 30 NDLR 103 (OCR Region V 2005) (The Court dismissed the claim that the college failed to accommodate students emotional disorders, because the student failed to engage in interactive process with disabilities services office).

****Update w/ policy there is a section that lists all of these****27

****Update w/ policy there is a section that lists all of these****28

Requests for Auxiliary AidsIn addition to accommodating student needs physically, communications must be as effective to students with disabilities as they are to students without disabilities.

If a qualified student with a disability requests an auxiliary aid, the institution should furnish reasonable accommodations for that student.

Examples of auxiliary aids:Sign language interpretersNote takersReaders Braille / large print

29

Recent Case Law on Auxiliary Aids20+ years of case law and findings under 504 have never allowed for institutions of higher education to refuse providing auxiliary aids or services on the basis of cost find room in your budget or determine another solution through interactive process!

Wells v. Lester E. Cox Medical Centers, 379 S.W.3d 919 (Mo.App.S.D. 2012) (There was no evidence that providing a sign language interpreter to student in nursing program would fundamentally alter the program or pose a threat to safety.)

30

Recent Case Law on Auxiliary AidsWolff v. Beauty Basics, Inc., 2012 WL 3634433 (D.D.C. 2012) (A deaf prospective student requested a sign language interpreter for classes, but was denied due to the expense. The court refused to dismiss the case.)

Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448 (5th Cir. La. 2005) (The court ruled against Louisiana Tech University regarding two hearing impaired students requests for reasonable accommodations.)These students both made formal requests for interpreters, note takers, and study aidsThe university allegedly failed to timely or consistently provide these accommodations to the students

31

Recent Case Law on Reasonable AccommodationsMcInerney v. Rensselaer Polytechnic Inst., 2013 U.S. Dist., 2013 WL 5614263 (N.D.N.Y Oct. 11, 2013) In 2013, the following was NOT a failure by the university to provide a reasonable accommodation.A graduate student, who suffered permanent brain damage from a bacterial brain infection, asked for periodic breaks to rest during the Doctoral Candidacy Exam.He was told that if he asked for breaks during the exam, he would get them.Student only asked for one break (which he received) and failed the exam.The student's conduct during the exam appeared normal and did not appear to the examiners as though his disability was affecting him. Students failure to request additional breaks during the exam was the reason he was not given additional breaks.

32

Recent Case Law on Reasonable AccommodationsFrank v. University of Toledo, No. 06-1442, 108 LRP 1325 (N.D. Ohio 2007) (Ph.D. candidate who met with disability office did not request specific testing accommodations prior to comprehensive examination cannot claim a failure to accommodate; for subsequent exams, the university reasonably attempted to accommodate the student who either refused proffered accommodations and/or did not follow proper protocol)

Notre Dame University, Case No. 05-04-2079, 30 NDLR 102 (OCR Region V 2005) (University did not violate ADA/Rehabilitation Act by failing to provide student with extended time and quiet testing environment when he could not establish that he ever requested same)

33

Recent Case Law onReasonable AccommodationsState University of New York at Potsdam; OCR Complaint No. 02-11-2062In 2011, OCR determined that the institution violated 504A student requested a single dormitory room (rather than having a roommate) to accommodate her disabilityCollege charged student the amount it would have charged a non-disabled student who wanted to live alone for personal reasonsStudents requiring a medical single should not be charged at a higher rate than the rate they would pay for their portion of a double room of the same type.

34

Recent Case Law onReasonable AccommodationsCalifornia State University, Los Angeles, Case No. 09-03-2197, 28 NDLR 302 (OCR Region IX 2004) (OCR faulted university for permitting its faculty to override accommodations agreed upon between the student and the disability services office: open book or open note exams; and the campus lacked effective grievance procedure to resolve disputes)

University of Illinois, 30 NDLR 104, Case No. 05-04-2078 (OCR Region V 2004) (OCR faulted university for having student take test in stairway nook when disability services office had approved a reduced distraction testing location)

Strahl v. Trustees of Purdue University, No. 07-61, 109 LRP 24433 (N.D. Ind. 2009) (The university did not fail to reasonably accommodate student with Aspergers Syndrome after he had successfully completed two semesters in Spanish, granted a substitution by taking French, but refused a second substitution after he was found to have cheated on an exam)

LaMarca v. Capella University, No. 05-00642 (C.D. Calif. 2007) (A students request for unlimited time to complete assignments was not reasonable, particularly when student was able to complete assignments within given time frame and obtained superior grades; and eliminating several weeks of coursework and decreasing the number of assignments in order to permit student to keep up with classmates was a substantial modification of the program and not reasonable.

35

Recent DOJ agreementsOn September 16, 2010, the DOJ announced its first settlement agreement to result from its efforts to address physical access to universities. This agreement, with McNeese State University in Louisiana and the Board of Supervisors of the Louisiana System, resulted from a compliance review that began after the state attorney generals office took the position in private ADA litigation against the campus that it was not required to have an accessible toilet room in its primary student union building. Under the agreement, the university will: Bring all newly constructed facilities into compliance with the ADA Standards;Develop and implement a campus wide Physical Access Plan to bring all covered facilities into compliance with Title II of the ADA. The Physical Access Plan will include specific remedial actions and time tables to ensure that the universitys programs, services and activities afford program access by no later than Sept. 1, 2016;Display information on its website about disability access and create and/or update its campus-wide emergency evacuation, sheltering, and shelter-in-place plans for individuals with disabilities; andDesignate an ADA coordinator.

Recent DOJ agreementsA 2010 agreement with Arizona State University ensures accessibility of electronic book readers to individuals with vision disabilities. DOJ and the Department of Education issued a joint letter to colleges and universities in 2010 explaining that requiring use of an emerging technology in a classroom environment when the technology is inaccessible to an entire population of individuals with disabilitiesindividuals with visual disabilitiesis discrimination prohibited by the [ADA and section 504] unless those individuals are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner. Letter from DOJ and Department of Education

C. Confidentiality

The institution is responsible for maintaining and collecting the records of students seeking accommodations. These records are regarded as highly confidential to not only protect a student from possible discrimination, but to prevent release of their medical records.

Disability information is a very sensitive issue, and it is shared on a need-to-know basis, necessary only in order to a take a specific action

Medical records kept for disability-related purposes are considered part of a students educational record and therefore subject to FERPA and protected.

Sharing of information in these files is restricted to consent by the student or for providing services to the student. In rare instances, the information may be disclosed to appropriate parties in health or safety emergencies.

20 U.S.C. 1232g

39

III. Student Duties

40

A. RequestingAccommodationsProviding accommodations to students is not automatic as it is in K-12.

In order for a student to receive an accommodation they must make a formal request and provide sufficient documentation.

41

Recent Case Law onRequests for AccommodationsAragona v. Berry, 2012 U.S. Dist. LEXIS 18443 (N.D. Tex. Feb. 14, 2012). In 2012, a Texas District Court dismissed all claims by a student who alleged that his school of dentistry failed to provide him reasonable accommodations. This student made an informal request to work more closely with his Patient Appointment Associate (similar to an advisor or counselor), a service already provided to him that the school did not limitThe court found that the student did not actually request a reasonable accommodation for his disability because working more closely with his PAA was a service already provided and it would not solve his academic problems which far exceeded the organization and scheduling issues he claimed.

Montclair State University, Case No. 02-06-2095, 107 LRP 40041 (OCR Region II 2007) (The student alleged that his professor had agreed to allow him to take an independent study course as an accommodation, which the professor denied. However, the OCR found that disability procedures do not permit students to request accommodations directly from professors).

42

Recent Case Law onRequests for Accommodations

Cunningham v. Wichita State University, 2014 U.S. Dist. LEXIS 127868 (D. Kan. 2014). Plaintiff Stephen Cunningham claimed that defendant Wichita State University (WSU) violated the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to accommodate his disability. Cunningham, who was diagnosed with diabetes and ADD, was dismissed from the WSU physician's assistant program after failing a re-administered neurology exam. Due to an alleged hyperglycemic episode, Cunningham had failed the exam the first time and was allowed to remain in the program on the condition that he retake and pass the exam. The U.S District Court for the District of Kansas concluded that WSU clearly had knowledge of Cunningham's diabetes and his requested accommodation when it re-administered the exam, as is required to file a plausible claim under the ADA and Section 504. However, Cunningham's suit rested not on any diabetic-related effects but rather on his ADD, which he claims was triggered when WSU administered his neurology retest in a professor's office located in a busy hallway. Because Cunningham did not plead any facts showing that WSU knew that he needed accommodation for his ADD, the Court held that Cunningham failed to state a plausible claim for relief under either the ADA or Section 504.Update: Appeal filed October 10, 2014 in 10th Court of Appeals by Cunningham.

B. DocumentationThe rationale for seeking information about a students condition is to support the institution in:

establishing disabilityunderstanding how the disability may impact the student, and making informed decisions about accommodations.

44

Reasonable DocumentationSchool may request a reasonable level of documentation School cannot create documentation processes that is burdensome or has the effect of discouraging students from seeking protections and accommodations to which they are entitled.Each individuals situation should be reviewed on a case by case basisInstitutions must inform students that their process and criteria for determining accommodations may not be the same as practiced by others.

45

Recent Case Law onDocumentationMillington v. Temple Univ. Sch. of Dentistry, 261 Fed. Appx. 363 (3d Cir. Pa. 2008). The Court held that a student failed to prove a disability that substantially limits a major life activity because she did not provide proper documentation thus barring her claim against her dentistry school. The students sworn assertion that she suffered from a condition was not enough to support a disability claim

Notre Dame University, Case No. 05-04-2079, 30 NDLR 102 (OCR Region V 2005) (University justified in refusing to provide accommodations until student provided sufficient documentation; therapists note received two days before end of classes that she was treating student for anxiety and he should receive extended time in quiet area held insufficient)

46

C. Student Rights &ResponsibilitiesStudents with disabilities have a right to equally participate in and benefit from services, programs, or activities offered at an institution.

An institution generally has no duty to provide an accommodation to an individual who has not asked for an accommodation and provided sufficient support for the disability. The student should participate in the search for accommodations.

47

C. Student Rights &ResponsibilitiesIf a school refuses to provide a student with the accommodations that a student needs or otherwise discriminates against a student because of their disability, the student can do any or all of the following:File an internal grievance/appeal with the school;File a complaint with the Office for Civil Rights of the U.S. Department of Education (OCR) or the U.S. Department of Justice (DOJ); Try to resolve things informally through private mediation; and/or File a lawsuit

48

Quiz on Reasonable AccommodationsShould your institution

Allow a student with a disability to tape record lectures?Allow course substitutions for pre-requisite courses?Have an instructor face the class when lecturing?Allow a student to have extended time for tests?Permit a student to sit in the front of a classroom with assigned seats?Counsel a student with a disability toward an easier career path?Not assess penalties for spelling errors on papers or exams?Include students mother in communications due to her childs disability?

49

Quiz Answers

Allow a student with a disability to tape record lectures?Depends on disability, but probably yes.Allow course substitutions for pre-requisite courses?Yes only if it does not result in a substantial change to an essential element of the schools curriculum. Have an instructor face the class when lecturing?Yes.Allow a student to have extended time for tests?Yes.Permit a student to sit in the front of a classroom with assigned seats? Yes.Counsel a student with a disability toward an easier career path?No. 34 CFR 104.47(b)Not assess penalties for spelling errors on papers or exams?Depends on the disability, but probably yes.Include students parent or guardian in communications due to their childs disability?Depends on the disability and age of child, but possibly.

IV. Emerging Issues

51

A. Web Accessibility

Per Texas Government Code 2054.45, and the ADA, Texas institutions must ensure that websites are accessible to people with disabilities.

The only exception to requiring accommodation of websites is if accessibility would be significantly difficult or expensive, but the agency should provide individuals with disabilities an alternate method of accessing the resources.

52

A. Web Accessibility

ALT Tags are invisible descriptions of images which are read aloud to blind users on a screen reader. Adding ALT text allows authors to include images, but still provide the content in an alternative text based format. If no ALT tags are provided, then a screen reader would only be able to say "IMAGE" or perhaps provide a file name.

53

A. Web Accessibility

Ensure that all new and modified web pages and content are accessible: Check the HTML of all new web pages. Make sure that accessible elements are used, including alt tags, long descriptions, and captions, as needed.If images are used, including photos, graphics, scanned images, or image maps, make sure to include alt tags and/or long descriptions for each.If you use online forms and tables, make those elements accessible.When posting documents on the website, always provide them in HTML or a text-based format (even if you are also providing them in another format, such as Portable Document Format (PDF)).

54

A. Web Accessibility

55

A. Web Accessibility

DOJ and Louisiana Tech University settlement. The settlement resolves allegations that the University violated the ADA by using a version of an online learning product that was inaccessible to a blind student. The students lack of access to the course materials persisted nearly one month into the University quarter, at which point the student was so far behind in his coursework that he felt compelled to withdraw from the course. The settlement also resolves allegations that in a subsequent course, the same student was not provided accessible course materials for in-class discussion or exam preparation in a timely manner.Under the settlement agreement, the university will adopt a number of disability-related policies, including the requirement to deploy learning technology, web pages and course content that is accessible in accordance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA standard in the university setting. The university will also make existing web pages and materials created since 2010 accessible. The agreement also requires the university to train its instructors and administrators on the requirements of the ADA, and secured a total of $23,543 in damages for the student from the university and the Board.

56

B. Service Animals

The ADA provides some guidance on requiring service animals to be allowed on campus.

Service Animals are any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheel chair or, fetching dropped items.

This means:Any animal, not just dogs, that are capable of assisting a disabled personAnimals solely for emotional support or comfort do not qualifyAnimals do not have to be certified, just properly trained

42 USCS 12182; 28 CFR 36.302(c)(1); 28 CFR 35.130(b)(7)

57

C. Power DrivenMobility DevicesThe ADA requires an entity to make reasonable modifications to allow individuals with mobility disabilities to use their power driven mobility devices.

These devices are not limited to wheel chairs and have included segways, golf carts, ATVs and other locomotion devices that are specifically designed for individuals with disabilities.

The use of these devices can be limited by showing that it is not reasonable to use the device or it will result in a fundamental alteration of the public entitys service, program or activity.

28 CFR 35.137;28 CFR 36.311

58

How Can You Help?

You can focus on helping them achieve their goals while fostering student development and independence.

You can advise them as students first, as students with disabilities second.

The students responsibility is to let you know if their disability impacts on the advice you give.

59

Keys to Avoiding Investigations/LawsuitsMake sure policies and procedures are in place, easily accessible and understood by disability personnel and faculty.Does your policy state the process for requesting accommodations?Is there a clear process for disputes?Follow policies and procedures! Document justification for any deviations.

Accommodation Award letters must be clear and specific. Err on the side of specificity. Have the counselor, student and faculty member sign.

Ensure your disability services office(s) is clearly marked and easy to locate.

60

Keys to Avoiding Investigations/LawsuitsTake complaints seriously. Investigate timely and follow policy.

Engage in an interactive discussion. If an accommodation is not reasonable, discuss alternatives.Communications should also be accommodating.

Respond timely!Follow-up in writing when possible.

Document! Document! Document!

Involve your legal department/administrators early.

61

OCR Investigation Process

Respond timely. Interview all individuals.Gather all documents.Obtain signed affidavits (if necessary).Remain courteous (help them remain neutral).Provide a written response addressing all issues so there is no reason for them to investigate further.If you have a weak defense, a conciliation agreement is not a bad thing.Conciliation agreements are negotiable.

62

RememberMany counseling issues brought to you by students with disabilities will be college issues not disability issues.

Hopefully, students should be able to consider their disability a piece of who they are rather than the primary component of their identity.

63

Contact InformationAmy Benya, Senior Assistant General CounselAmy.benya@lonestar.eduSeth Larsen, Assistant General CounselSeth.b.larsen@lonestar.edu

65