utah ahead: disibality law: the year in review may 2010

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UTAH AHEAD: DISIBALITY LAW: THE YEAR IN REVIEW

May 2010

Melissa L. Frost, J.D. Loss Control Specialist

State of Utah, Division of Risk Management

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CAVEATCAVEAT

This presentation is provided for This presentation is provided for informational purposes only and may informational purposes only and may not be construed as legal advice. not be construed as legal advice. Consult your designated legal Consult your designated legal counsel to address any pertinent counsel to address any pertinent issues that may affect you.issues that may affect you.

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HIGHER EDUCATION HIGHER EDUCATION OPPORTUNITY ACT (HEOA 2008)OPPORTUNITY ACT (HEOA 2008)

SEC. 112. TEXTBOOK INFORMATION.SEC. 112. TEXTBOOK INFORMATION. (Creates a new (Creates a new section #133, in the HEA) section #133, in the HEA)

''(a) PURPOSE AND INTENT.''(a) PURPOSE AND INTENT.- The purpose of this section is to - The purpose of this section is to ensure that students have access to affordable course ensure that students have access to affordable course materials by decreasing costsmaterials by decreasing costs to students and enhancing to students and enhancing transparency and disclosure with respect to the selection, transparency and disclosure with respect to the selection, purchase, sale, and use of course materials. It is the intent of purchase, sale, and use of course materials. It is the intent of this section to this section to encourage all of the involved parties, encourage all of the involved parties, including faculty, students, administrators, institutions of including faculty, students, administrators, institutions of higher education, bookstores, distributors, and publishers, higher education, bookstores, distributors, and publishers, to work togetherto work together to identify ways to to identify ways to decrease the costdecrease the cost of of college textbooks and supplemental materials for students college textbooks and supplemental materials for students while supporting the academic freedom of facultywhile supporting the academic freedom of faculty members members to select high quality course materials for students. to select high quality course materials for students.

http://ed.gov/policy/highered/leg/hea08/index.htmlhttp://ed.gov/policy/highered/leg/hea08/index.html

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HEOA 2008 Cont.HEOA 2008 Cont.

Publisher RequirementsPublisher Requirements Course Schedule RequirementsCourse Schedule Requirements Information for College Bookstore Information for College Bookstore

RequirementsRequirements Additional Information * AccessibilityAdditional Information * Accessibility GAO ReportGAO Report Rule of ConstructionRule of Construction No Regulatory AuthorityNo Regulatory Authority EFFECTIVE 7-1-10EFFECTIVE 7-1-10 http://www.bookstore.http://www.bookstore.csupomona.csupomona.edu/content/d/faculty/HEOA.mhtedu/content/d/faculty/HEOA.mht

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HEOA 2008 Cont.HEOA 2008 Cont.

ADDITIONAL ADDITIONAL INFORMATIONINFORMATIONAn institution An institution disclosing the disclosing the information required information required by subsection (d) (1) by subsection (d) (1) is is encouraged to encouraged to disseminate to disseminate to students students informationinformation regarding -regarding -

If a college has these programsIf a college has these programs they are encouraged to publicize they are encouraged to publicize information about them. information about them.

Available programs for Available programs for rentingrenting textbooks or for textbooks or for purchasing purchasing usedused textbooks; textbooks;

Available guaranteed Available guaranteed textbook textbook buy-backbuy-back programs; programs;

Any available Any available institutional institutional alternative content delivery alternative content delivery programs;programs; or or

Other available cost-saving Other available cost-saving strategies. strategies.

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NOTICE OF PROPOSED RULE MAKING (NPRM)

The comparison of an individual’s limitation is to the ability of “most people” in the general population.

Sitting, Reaching, and Interacting with Others are MLA’s.

“An impairment substantially limits the major life activity of working if it substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue.”

http://edocket.access.gpo.gov/2009/pdf/E9-22840.pdfhttp://edocket.access.gpo.gov/2009/pdf/E9-22840.pdf

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Harrison v. Benchmark Electronics Huntsville, Inc., 2010 U.S. Appl LEXIS

632 (11th Cir. January 11, 2010)

H: “We now explicitly recognize that a plaintiff has a private right of action… irrespective of his disability status.”

Non-Disabled Applicants Can Sue under ADA in 11th Cir

Unlawful to use qualification standards, employment tests or other selection criteria that tend to screen out individuals with disabilities, on the basis of disability, unless the standard, test, or other selection criteria is job-related for the subject position and consistent with business necessity.

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EXAMPLES OF IMPAIRMENTS CONSISTENTLY MEETING THE

DEFINITION OF DISABILTY

Deafness Blindness Intellectual disability Partially/completely missing limbs Mobility impairments requiring wheelchair

use Autism Cancer

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EXAMPLES OF IMPAIRMENTS CONSISTENTLY MEETING THE DEFINITION OF DISABILTY Cont.

Cerebral Palsy Diabetes Epilepsy HIV or AIDS Multiple Sclerosis Major Depression, Bipolar Disorder, PTSD,

OCD, or Schizophrenia

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EXAMPLES OF IMPAIRMENTS THAT DISABLE SOME AND NOT OTHERS

Depends on the degree to which they affect the individual’s major life activities.

Asthma High Blood Pressure Hyperthyroidism Carpal Tunnel syndrome. Learning Disabilities Psychiatric Impairments

panic disorder, anxiety disorder, some forms of depression other than major depression

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EXAMPLES OF EPISODIC IMPAIRMENTS

“An impairment that is episodic or in remission is a disability if it would substantially limit an MLA when active.” Epilepsy Multiple Sclerosis Cancer Mental Illness Hypertension Asthma, Psychiatric disabilities such as depression,

bipolar disorder, and post-traumatic stress disorder.

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PRE AMENDMENTS ACT CASES SUBSTANTIALLY LIMITED IN LEARNING

Singh v. George Washington Univ., 508 F.3d 1097 (D.C. Cir. 2007), vacating and remanding 439 F. Supp.2d 8 (D.D.C. 2006), on remand, Singh v. George Washington Univ., 597 F. Supp. 2d 89 (D.D.C. 2009) (learning; time-limited test taking)

Wong v. Regents of the University of California, 379 F.3d 1097 (9th Cir. 2004), as amended, 410 F.3d 1052 (9th Cir. 2005) (substantially limited in learning)

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Singh v. George Washington Singh v. George Washington UniversityUniversity, 597 F. Supp. 2d 89 , 597 F. Supp. 2d 89

(D.D.C. 2009)(D.D.C. 2009) H: Dcrt did not apply ADA-AA retroactively. 1. Compare her to average person in general

population. 2. Performing on tests is not major life activity but

GW should have looked at LD overall. 3. GW said too late- already dismissed. Singh won

on only this issue because once GW learned she had a disability- the accommodation was not to undo what happened but to determine if she was qualified going forward.

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PRE AMENDMENTS ACT CASES SUBSTANTIALLY LIMITED IN LEARNING

Herzog v. Loyola College in Maryland, Inc., No. RDB-07-02416, 2009 U.S. Dist. LEXIS 94454 (D. Md. Oct. 9, 2009) (learning)

Love v. Law School Admission Council, 513 F. Supp.2d 206 (E.D.Pa. 2007) (substantially limited in learning, reading and processing information)

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POST AMENDMENTS ACT CASES

Jenkins v. National Board of Medical Examiners, 2009 U.S. App. LEXIS 2660 (6th Cir. Feb. 11, 2009)

Brodsky v. New England School of Law, 617 F. Supp 2d 7 (D.Mass. 2009)

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OTHER SUBSTANTIALLY LIMITED CASES

Millington v. Temple University School of Millington v. Temple University School of DentistryDentistry,, 261 Fed. Appx. 363,2008 U.S. App. 261 Fed. Appx. 363,2008 U.S. App. LEXIS 1291 (3d Cir. Jan. 23, 2008), LEXIS 1291 (3d Cir. Jan. 23, 2008), affirming affirming 2006 U.S. Dist. LEXIS 74926 (E.D. Pa. Oct. 2006 U.S. Dist. LEXIS 74926 (E.D. Pa. Oct. 13, 2006) (substantially limited generally), 13, 2006) (substantially limited generally), cert. denied, 129 S. Ct. 419 (2008) cert. denied, 129 S. Ct. 419 (2008)

Hogan v. Ogden, et aI., 2008 U.S. Dist. 2008 U.S. Dist. LEXIS 58359 (E.D. Wash. July 20,2008) LEXIS 58359 (E.D. Wash. July 20,2008) (walking, due to complications of pregnancy) (walking, due to complications of pregnancy)

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REGARDED AS

Burns v. Slippery Rock University of Pennsylvania, 2007 US. Dist. LEXIS 57716 , 2007 US. Dist. LEXIS 57716 (W.D. Pa. Aug. 8, 2007), (W.D. Pa. Aug. 8, 2007), reconsideration reconsideration granted and ruling overt' d in part by granted and ruling overt' d in part by Burns Burns v. Slippery Rock Univ. of Pa.v. Slippery Rock Univ. of Pa., 2007 U.S. , 2007 U.S. Dist. LEXIS 63406 (W.D. Pa. Aug. 28,2007) Dist. LEXIS 63406 (W.D. Pa. Aug. 28,2007)

Costello v. University of North Carolina at Greensboro, 2006 U.S. Dist. LEXIS , 2006 U.S. Dist. LEXIS 90519 (M.D.N.C. Dec. 14,2006) 90519 (M.D.N.C. Dec. 14,2006)

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CONSTRUCTIVE NOTICE

Concepcion v. Commonwealth of Concepcion v. Commonwealth of Puerto RicoPuerto Rico, No. 08-2378,2010 US. Dist. , No. 08-2378,2010 US. Dist. LEXIS 4243 (D.P.R. Jan. 20, 2010) LEXIS 4243 (D.P.R. Jan. 20, 2010)

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APPLICATION OF NON-DISCRIMINATORY STANDARDS

Millington v. Temple University School Millington v. Temple University School of Dentistryof Dentistry, 261 Fed. Appx. 363,2008 , 261 Fed. Appx. 363,2008 U.S. App. LEXIS 1291 (3d Cir. Jan. 23, U.S. App. LEXIS 1291 (3d Cir. Jan. 23, 2008), 2008), affirming affirming 2006 US. Dist. LEXIS 2006 US. Dist. LEXIS 74926 (E.D. Pa. Oct. 13, 2006) 74926 (E.D. Pa. Oct. 13, 2006) (substantially limited generally), (substantially limited generally), cert. cert. denied, denied, 129 S. Ct. 419 (2008) 129 S. Ct. 419 (2008)

Buhendwa v. University of Colorado at Buhendwa v. University of Colorado at BoulderBoulder, 214 Fed. Appx. 823, 2007 US. , 214 Fed. Appx. 823, 2007 US. App. LEXIS 2207 (lOth Cir. Jan. 30, 2007) App. LEXIS 2207 (lOth Cir. Jan. 30, 2007) (unpublished) (unpublished)

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Cont. Betts v. Rector and Visitors of the

University of Virginia, 145 Fed. Appx. 7,2005 U.S. App. LEXIS 16456 (4th Cir. Aug. 5,2005) (unpublished)

Herzog v. Loyola College in Maryland, Inc., No. RDB-07-02416, 2009 U.S. Dist. LEXIS 94454 (D. Md. Oct. 9, 2009)

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Cont. Di Lella v. Univ. of the Dist. of Columbia

David A. Clarke School of Law, et aI., 570 F. Supp. 2d 1 CD.D.C. 2008).

Hogan v. Ogden, et aI., 2008 U.S. Dist. LEXIS 58359 (E.D. Wash. July 20,2008).

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Cont. Shamonsky v. Saint Luke's School of

Nursing, et aI., 2008 U.S. Dist. LEXIS 20426 (E.D. Pa. Mar. 17, 2008)

Chen v. Univ. of Wash., 2008 U.S. Dist. LEXIS 16902 (W.D. Wash. Mar. 5,2008).

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CONDUCT Institutions may prohibit:

Violence or threats of violence Stealing Destruction of property Insubordination Showing disrespect to clients,

customers, or public Inappropriate behavior Alcohol or illegal drug use

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CONDUCT: PRACTICAL GUIDANCE

Accommodation Accommodation requests arerequests are prospectiveprospective: Generally, : Generally, need need notnot rescindrescind discipline or grades discipline or grades..

An institution An institution may have to provide a may have to provide a reasonable accommodationreasonable accommodation to a student to a student with a disability with a disability when discussing when discussing performance or discipline to enable performance or discipline to enable meaningful discussion and meaningful discussion and understanding ofunderstanding of the nature of the the nature of the performance or conduct problem. performance or conduct problem. (interpreters etc)(interpreters etc)

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BLANKET POLICY APPLICATION

EEOC v. Sears6.2 Million Dollar Settlement (Largest Ever)

EEOC v. UPS Second Class Action this year is Pending

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ACADEMIC ADJUSMENTS AND AUXILIARY AIDS

Button v. Board of Regents of Univ. and Comm. College Sys. of Nev., et al.,2008 U.S. App. LEXIS 26992 (9th Cir. Aug. 14, 2008)

Di LelIa v. Univ. of the Dist. of Columbia David A. Clarke School of Law, et aI., 570 F. Supp. 2d 1 (D.D.C. 2008)

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ACADEMIC ADJUSMENTS AND AUXILIARY AIDS Cont.

Simonelli v. Univ. of Cal.- Berkeley, et aI., 2008 U.S. Dist. LEXIS 44589 (N.D. CaI. Feb. 14, 2008), aff'd, 338 Fed. Appx. 673,2009 U.S. App. LEXIS 16048 (9th Cir. July 21, 2009),petition for cert.filed, Dec. 9,2009 (No. 09-1016)

Hayden v. Redwoods Community College District, 2007 U.S. Dist. LEXIS 835 (N.D. CaI. Jan. 8, 2007)

Melendez v. Monroe College, 2006 U.S. Dist. LEXIS 73040 (E.D.N. Y. Oct. 6, 2006)

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MODIFICATIONS OF ACAEMIC AND TECHNICAL STANDARDS

Millington v. Temple University School of Millington v. Temple University School of DentistryDentistry, 261 Fed. Appx. 363,2008 U.S. App. , 261 Fed. Appx. 363,2008 U.S. App. LEXIS 1291 (3d Cir. Jan. 23, 2008), LEXIS 1291 (3d Cir. Jan. 23, 2008), affirming affirming 2006 US. Dist. LEXIS 74926 (E.D. Pa. Oct. 13, 2006 US. Dist. LEXIS 74926 (E.D. Pa. Oct. 13, 2006) (substantially limited generally), 2006) (substantially limited generally), cert. cert. denied, denied, 129 S. Ct. 419 (2008) 129 S. Ct. 419 (2008)

Mershon v. St. Louis UniversityMershon v. St. Louis University,, 442 F. 3d 442 F. 3d 1069 (8th Cir. 2006) 1069 (8th Cir. 2006)

Hartnett v. Fielding Graduate InstituteHartnett v. Fielding Graduate Institute, 198 , 198 Fed. Appx. 89,2006 U.S. App. LEXIS 24128 (2d Fed. Appx. 89,2006 U.S. App. LEXIS 24128 (2d Cir. Sept. 21, 2006) (unpublished) Cir. Sept. 21, 2006) (unpublished)

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MODIFICATIONS OF ACAEMIC AND TECHNICAL STANDARDS Cont.

Betts v. Rector and Visitors of the University of Virginia, 145 Fed. Appx. 7, 2005 U.S. App. LEXIS 16456 (4th Cir. 2005) (unpublished)

Falcone v. University of Minnesota, 388 F.3d 656 (8th Cir. 2004)

McInerney v. Rensselaer Polytechnic Institute, No: 1 :05 CV-1267, 2010 U.S. Dist. Lexis 16950 (N.D.N.Y. Feb. 25, 2010)

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Oser v. Capital University Law School, No. 2:09-cv-709, 2009 US. Dist. LEXIS 86425 (E.D.Oh. Sept. 8,2009)

Strahl v. Trustees of Purdue University, No: 4:07-cv-61-AS, 2009 US. Dist. LEXIS 34231(N.D. In. Apr. 22, 2009)

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Yount v. Regents University. Inc., No. CV-08-8011-PCT-DGC, 2009 US. Dist. LEXIS 32846 (D. Ariz. Apr. 14,2009).

Hogan v. Ogden. et aI., 2008 US. Dist. LEXIS 58359 (E.D. Wash. July 20, 2008)

Chen v. Univ. of Wash., 2008 US. Dist. LEXIS 16902 (W.D. Wash. Mar. 5, 2008).

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Toledo v. University of Puerto Rico, 2008 U.S. Dist. LEXIS 4248 (D.P.R. Jan. 18,2008)

Long v. Howard University, 439 F. Supp.2d 68 (D.D.C. 2006), motion for new trial denied Long v. Howard Univ., 512 F. Supp. 2d 1 (D.D.C. 2007), aff'd, 550 F.3d 21 (D.C. Cir. 2008)

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CORE ELEMENTS

Example: University of West Virginia University engineering student who could not work with a team was allowed to forego the team project.

When he could not maintain employment as an engineer he sued and won.

WVU is now paying his tuition for another degree.

Teamwork was a core element in the classroom and in the work world.

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PERFORMANCE

It is generally inappropriate to focus discussion about performance or conduct problems on the disability.

Focus should be on correcting performance problems and avoiding future misconduct.

Emphasizing the disability risks distracting from the primary focus on the problem and can result in a “regarded as” claim.

It is generally preferable for the person to raise the disability rather than the entity.

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LIMITS OF DEFERENCE

Yount v. Regents University. Inc., No. CV-08-8011-PCT-DGC, 2009 US. Dist. LEXIS 32846 (D. Ariz. Apr. 14, 2009)

Toledo v. University of Puerto Rico, 2008 U.S. Dist. LEXIS 4248 (D.P.R. Jan. 18,2008)

Long v. Howard University, 439 F. Supp.2d 68 (D.D.C. 2006), motion for new trial denied Long v. Howard Univ., 512 F. Supp. 2d 1 (D.D.C. 2007), aff'd, 550 F.3d 21 (D.C. Cir. 2008)

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DOJ and DEFERENCEDOJ and DEFERENCE

Institutions will receive much more deference if there is a well written reason for academic decision making.

Decision making committees should have a good balance of people from campus who can make objective decisions.

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Best Practices Adjustments

Determine with students appropriate academic accommodations and services.

Maintain records that document the student’s plan for the provision of selected accommodations.

Consider time-limited provisional accommodations pending documentation.

Student is responsible for notifying you if accommodations are not effective.

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TESTING

Falchenberg v. New York State Department of Education, 338 Fed. Appx. 11,2009 US. App. LEXIS 12213 (2nd Cir. June 8, 2009), cert. denied, 130 S. Ct.1059, (2010)

Enyart v. National Conference of Bar Examiners, Case No. C 09-5191 CRB (N.D. Ca. Feb. 4, 2010)

Frank v. University of Toledo, 621 F. Supp. 2d 475 (N.D. Ohio 2007)

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HOUSING

Fialka-Feldman v. Oakland Univ. Bd. Of Trs., Case No. 08-14922, 2009 US. Dist. LEXIS 119971 (RD. Mich. December 23,2009)

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INTERACTIVE PROCESS

Cutrera v. Louisiana State University, 429 F.3d 108 (5th Cir. 2005)

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ACCESSIBILITY

Klingler v. Director. Dept. of Revenue, 433 F.3d 1078 (8th Cir. 2006) (parking placards), supplemental opinion at 455 F.3d 888 (8th Cir. 2006)

Eames v. Southern University and Agricultural and Mechanical College, No. 09-56-JJB, 2009 LEXIS 97452 (M.D. La .. Oct. 16, 2009)

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ACCESSIBILITY Cont.

Huezo v. Los Angeles Community College, o. CV 04-9772 MMM (JWJx), 2008 U.S. Dist. LEXIS 81520 (C.D. Cal. Sept. 9,2008), injunction granted at 2008 US. Dist. LEXIS 81513 (C.D. Cal. Sept. 9, 2008).

Kuchmas, et al. v. Towson Univ .. et aI., 553 F. Supp. 2d 556 (D. Md. 2008)

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ACCESSIBILITY Cont.

Cherry v. City College of San Francisco, 2007 U.S. Dist. LEXIS 76500 (N.D. Cal. Oct. 1,2007)

Michigan Paralyzed Veterans of America v. University of Michigan/U.S. v. University of Michigan, No. 07-11702 (E.D. Mi. March 10,2008) (consent decree)

Swathmore College Consent Decree

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Michigan Paralyzed Veterans of America v. Michigan Paralyzed Veterans of America v. University of Michigan/U.S. v. University of University of Michigan/U.S. v. University of

MichiganMichigan, No. 07-11702 , No. 07-11702

(E.D. Mi. March 10, 2008) (consent decree)(E.D. Mi. March 10, 2008) (consent decree)

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MichiganMichigan, Cont., Cont.

Provide training on consent decree at the start of each football season.

Market accessible information on all publications and the website.

Retain no more than 40 wheelchair and companion seats for game day change-outs only offered to persons with disabilities (specifies how many in which section).

Allow single seat sales at the same time that other seats become eligible for single seat sales.

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MichiganMichigan, Cont., Cont.

Submit to MPVA and Unites States a written report through 2012 of all work, copies of marketing, photographs, and proposed changes to physical structure, policy or practice.

Submit a detailed description of the number, location and total cost of each ticket sold for accessible seating.

Mail Surveys to all individuals who purchase accessible seating through the 2012 season.

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SWATHMORE COLLEGE SWATHMORE COLLEGE EVACUATION PLAN: CONSENT EVACUATION PLAN: CONSENT

DECREEDECREE The The Roles of DepartmentRoles of Department, Dep. Of Public Safety , Dep. Of Public Safety

and The Borough Of Swarthmore's Police and Fire and The Borough Of Swarthmore's Police and Fire DepartmentsDepartments

Emergency CommunicationEmergency Communication And Alerting And Alerting ProceduresProcedures

Campus-wide plansCampus-wide plans for Emergency Evacuation for Emergency Evacuation Evacuation Procedures (PEPS) Evacuation Procedures (PEPS) TrainingTraining Contact InformationContact Information and Emergency and Emergency Numbers Numbers

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PERSONAL EMERGENCY PLANS (PEPS) for PERSONS WITH

DISABILITIES

Personal Emergency Plans (PEPs) for Personal Emergency Plans (PEPs) for Persons with DisabilitiesPersons with Disabilities Although not required, Although not required, faculty, staff, faculty, staff,

and students areand students are encouraged to encouraged to identify their concerns about identify their concerns about evacuation evacuation in case of an emergency, in case of an emergency, and to develop a PEP that is effective and to develop a PEP that is effective for them.for them.

http://www.swarthmore.edu/x17268.xmlhttp://www.swarthmore.edu/x17268.xml

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(PEPS) for PERSONS WITH DISABILITIES Cont.

Your Your schedule schedule The The types of assistancetypes of assistance you might need in an you might need in an

emergency emergency Emergency contactEmergency contact numbers numbers Where you keep your emergency suppliesWhere you keep your emergency supplies How to operate your assistive devicesHow to operate your assistive devices, if , if

applicable applicable The The size and weight of your assistive size and weight of your assistive

devicesdevices, in addition to whether or not they are , in addition to whether or not they are collapsible,collapsible,in case they have to be transported in case they have to be transported

Location of Areas of Rescue AssistanceLocation of Areas of Rescue Assistance and and Safe Wait AreasSafe Wait Areas

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Identifying the safest area(s)Identifying the safest area(s) located on each located on each floor within the building(s) where a person with floor within the building(s) where a person with disabilities can await assistance from emergency disabilities can await assistance from emergency response personnel. response personnel.

Designating a means to inform emergency Designating a means to inform emergency response personnelresponse personnel (e.g., police, fire) of the (e.g., police, fire) of the locations of any person(s) requiring assistance. locations of any person(s) requiring assistance.

Identification of Identification of volunteer Rescue Assistantsvolunteer Rescue Assistants. . Location of Location of back-up medical or assistive back-up medical or assistive

equipment and medicationsequipment and medications. .

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Use of an optional personal GPS locator.Use of an optional personal GPS locator. In In an emergency, Public Safety can pinpoint the an emergency, Public Safety can pinpoint the person's location so that first-responders can person's location so that first-responders can more easily find and evacuate them. In the event more easily find and evacuate them. In the event of an emergency, the individual may press the of an emergency, the individual may press the "panic button" on the device for immediate "panic button" on the device for immediate notification at the Communications Center at notification at the Communications Center at Public Safety Public Safety

Training in transfer techniquesTraining in transfer techniques, if needed, for , if needed, for use of the Evac Chair. use of the Evac Chair.

Practice/drillPractice/drill opportunities. opportunities. A A copy of all PEPscopy of all PEPs will be located in the Office will be located in the Office

of Public Safety and are of Public Safety and are only available on a only available on a 'need-to-know' basis'need-to-know' basis in an emergency. in an emergency.

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BEST PRACTICES EMERGENCY PREPAREDNESS

Plan, Develop, Implement Table Top Exercises Discuss disabilities: Inquire how you might make

it easier for those with specific types of disabilities

Complete drills Record what is needed to improve Implement improvements Safety procedures must be reviewed

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RETALIATION

Mershon v. St. Louis UniversityMershon v. St. Louis University, , 442 F. 3d 442 F. 3d 1069 (8th Cir. 2006) 1069 (8th Cir. 2006)

Yount v. Regents University, IncYount v. Regents University, Inc., No. CV-08-., No. CV-08-8011-PCT-DGC, 2009 U.S. Dist. LEXIS 32846 8011-PCT-DGC, 2009 U.S. Dist. LEXIS 32846 (D. Ariz. Apr. 14, 2009)(D. Ariz. Apr. 14, 2009)

Di LeIla v. Univ. of the Dist. Of Columbia Di LeIla v. Univ. of the Dist. Of Columbia

David A. Clarke School of Law, et aIDavid A. Clarke School of Law, et aI.., 570 F. , 570 F. Supp. 2d 1 (D.D.C. 2008) Supp. 2d 1 (D.D.C. 2008)

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RETALIATION

Frank v. University of ToledoFrank v. University of Toledo,, 621 F. 621 F. Supp. 2d 475 (N.D. Ohio 2007) Supp. 2d 475 (N.D. Ohio 2007)

Melendez v. Monroe CollegeMelendez v. Monroe College, 2006 U.S. , 2006 U.S. Dist. LEXIS 73040 (E.D.N.Y. Oct. 6,2006) Dist. LEXIS 73040 (E.D.N.Y. Oct. 6,2006)

Bayon v. State University of New YorkBayon v. State University of New York, , 2006 U.S. Dist. LEXIS 18980 (W.D.N.Y. 2006 U.S. Dist. LEXIS 18980 (W.D.N.Y. April 13, 2006) April 13, 2006)

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DIRECT THREAT Direct Threat is “a significant risk to health or

safety of others that cannot be eliminated by policy, practice or procedure.”

Must be established by individualized determination.

An individual is NOT “qualified” under the ADA if his or her health conditions present a direct threat to him/herself or to others. Chevron USA, Inc. v. Echazabal, 536 U.S. 73 (2002); and

No reasonable accommodations would eliminate or substantially limit the threat.

Note: Self is only addressed in employment.

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DIRECT THREAT Cont.

Direct threat factors: Duration of risk; Nature/severity of potential harm; Likelihood that potential harm will

occur; and Imminence of potential harm.

The probability an event will occur and why harm cannot be not mitigated.

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OCR and DIRECT THREAT Institutions must rely on objective evidence -

best medical evidence. Students must meet essential academic and

technical elements of the institution/program/course.

Students are NOT qualified if they pose a direct that cannot be mitigated.

Preamble and Title II talks about direct threat but does not have threat to self language. OCR has not Provided guidance on threat to self.

If the student says I am going to engage in illegal activity or harm myself or someone else, be sure that you have a policy to address it and then implement it consistently.

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SOVEREIGN IMMUNITYSOVEREIGN IMMUNITY

Toledo v. Sanchez, 454 F.3d 24 (1st Cir. 2006)

Bowers v. National Collegiate Athletic Association, 475 F.3d 524 (3d Cir. 2007)

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STATUTE OF LIMITATIONS

Kuchmas, et al. v. Towson Univ .. et aI., 553 F. Supp. 2d 556 (D. Md. 2008)

Long v. Howard University, 512 F. Supp. 2d 1 (D.D.C. Sept. 5,2007), aff'd, 550 F.3d 21 (D.C.Cir. 2008)

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SERVICE ANIMALS

Springfield-Greene County Health Dept, Cox Health Systems and Wal-Mart Supercenter, Case No. 6:08-CV-03292-RED, 2009 U.S. Dist. LEXIS 98078 (S.D. Mo. October 21, 2009)

Sheely v. MRI Radiology Network, 505 F.3d 1173 (11th Cir. 2007)

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CHEMICAL SENSITIVITYCHEMICAL SENSITIVITY

Kaufmann v. GMAC Mortgage CorpKaufmann v. GMAC Mortgage Corp., 2007 WL ., 2007 WL 1933913 (3d Cir. July 5, 2007)1933913 (3d Cir. July 5, 2007)

Compare with: Compare with:

EEOC v. City of DetroitEEOC v. City of Detroit

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SEGWAYSSEGWAYS

DOJ has proposed to require businesses to allow individuals with mobility disabilities to use segways in places of public accommodation.

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KINDLE and PRINCETONKINDLE and PRINCETON

Princeton offered a pilot program Fall 09 to test utility of kindle DX in the classroom.

NFB and DOJ claimed violated ADA and 504 because kindle is inaccessible to visually impaired students.

Princeton agreed to: Not require, purchase, or incorporate in the

curriculum the Kindle DX until it is fully accessible. Provide visually impaired students with a

dedicated electronic book reader in the class to access and acquire the same information.

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WEB SITE ACCESSIBILITY Images and animations. Use the ALT attribute to

describe the function of each visual. Images have embedded text explanations.

Image maps. Use client-side MAP (image map processor) and text for hotspots (active regions in images containing links or other types of interactivity).

Multimedia. Provide captioning and transcripts of audio, and descriptions of video. Eliminating Flash.

Hypertext links. Use text that makes sense when read out of context. For example, avoid “click here.”

Page organization. Use headings, lists and consistent structure. Be sure they are descriptive.

Use CSS (cascading style sheets) for layout and style when possible.

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WEB SITE ACCESSIBILITY Cont.WEB SITE ACCESSIBILITY Cont.

Graphs and charts. Summarize or use the longdesc (long description) attribute.

Scripts, applets and plug-ins. Provide alternative content in case active features are inaccessible or unsupported.

Frames. Use NOFRAMES (displaying text intended for frames in Web documents for those using browsers that cannot read frames) and meaningful titles.

Tables. Make line-by-line reading sensible. Summarize. Check your work. Validate. Use tools, checklists and

guidelines at http://www.w3.org/TR/WCAG. quick tips also are at:

http://www.w3.org/WAI/References/QuickTips.

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EDUCATING STUDENTS Develop clear/simple policies and

procedures. Disseminate policies/procedures via all

relevant campus media. Keep all referral, documentation, and

disability services information current. Ensure eligibility criteria and procedures for

accessing accommodations are clearly delineated and disseminated campus-wide.

Provide regular orientations for new students.

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EDUCATING FACULTY/STAFF

Inform of legal responsibilities and consequences.

Educate regarding student rights and responsibilities.

Collaborate with faculty when accommodation requests may fundamentally alter academic requirements.

Address need for consistency.

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EDUCATING FACULTY/STAFF Cont.

Inform faculty about services available to students with disabilities.

Train administration and staff to enhance institutional understanding of student rights.

Train faculty/staff to recognize accommodation requests and refer students to disability services.

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BEST PRACTICES

Interview students regarding functional limitations. Provide reasonable accommodations promptly

without compromising essential elements of the subject program.

Use service delivery model that facilitates student independence.

Obtain authorizations and contact professionals. Know when to engage your own expert. Consult with Risk Management before denying

accommodation requests.

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Melissa L. Frost, J.D. Melissa L. Frost, J.D.

Loss Control ADA SpecialistLoss Control ADA Specialist

State of UtahState of Utah

Division of Risk ManagementDivision of Risk Management

5120 State Office Building5120 State Office Building

Salt Lake City, UT 84114Salt Lake City, UT 84114

Case References Provided by Shelly Jackson, J.D. Case References Provided by Shelly Jackson, J.D.

of U.S. Department Of Justiceof U.S. Department Of Justice

Phone: Phone: 801.538.3589801.538.3589

Fax: 801.538.9597Fax: 801.538.9597

Email: Email: [email protected]@utah.gov

utah ahead: disibality law: the year in review may 2010

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