ADA, Section 504 and FHA•Step 1—Understand the basic concepts and new developments ... Chronic...

© Copyright 2015 Saul Ewing LLP

ADA, Section 504 and FHA

More Complex Than Ever

Baylor University

March 29, 2016

1


Introduction

• These are civil rights laws.

• Fundamental principles have not changed in almost 40 years

• Reasonable accommodations are intended to level the playing field, not provide an unfair advantage

• The major medical and disability issue facing colleges and universities is students with mental

health issues.

2


Examples of Discrimination

• Refusing to provide services to persons with disabilities

• Imposing requirements on persons with disabilities that are not imposed on others

• Providing services in a segregated manner

• Harassment or bullying based upon a person’s disability

• Treating individuals with one type of disability differently than others

• The ADA and Section 504 seek to ensure that all individuals have an equal opportunity, but does not guarantee equal outcomes

3


Cultural Context

• The return of in loco parentis in higher education

And treating adults as children

• A stressed out generation with helicopter parents

• Cultural fear from mass shootings

• A backlash against “civil rights” include disability rights

4


Changes From Every Direction

• Congress and the Courts –the ADA Amendments

• DOJ, OCR, HUD—regulations, rulemakings, guidance, litigation, enforcement

• Technology

• Increase demand from students and their parents over care of students

• Increased expectations to maintain a safe campus

5


Unforeseen and Unintended Consequences

• The explosion of animals in dorms (and the cottage industry in fake credentials)

• Perceived limits on the ability of schools to deal with students who are injuring themselves.

• Potential eligibility of a majority of students for “accommodations”

• ADA “Surfing” Lawsuits

6


Where to Start?

• Step 1—Understand the basic concepts and new developments

• Step 2--Understand the context

• Step 3—Triage Priorities

• Step 4—Incorporate into your culture and values

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Who is Protected Under the ADA and Section 504?

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Which of these students are

protected?

1. Heroin addict on methadone

2. HIV positive, contracted as a teenager due to risky behavior

3. Legally Deaf, uses a sign language interpreter, has some speech

4. Breast cancer survivor

5. Paralyzed veteran, recently returned, in counseling for PTSD.

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Pop Quiz

6. Autism spectrum disorder (Asperger's) with significant limitation in social skills, but brilliant.

7. Epilepsy, largely controlled

8. Visual processing disorder, requires extended time on tests

9. Chronic colitis from Crohn’s disease

10. Gender identity disorder/transgender

10


The Definition of “Disability”

• The definition has not changed since 1990– an individual with a disability is a person who has:

a physical or mental impairment that substantially limits one or more of the major life activities (MLA’s ) of such individual;

a record of such an impairment; or

is regarded as having such an impairment

• The meaning has change completely

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Many People are Protected

• In the ADA Amendments Act Congress provided new rules on:

What is a substantial limitation

What facts can be considered; and

Expanded coverage to any individual who suffered an adverse action due to a physical or mental impairment.

• Congress wanted to shift the focus from whether the individual is protected by the ADA to whether a requested accommodation was reasonable or the adverse action was based upon legitimate reasons

12


Unintended Consequences

• Congress’ focus was on overturning restrictive Supreme Court decisions involving employment (ADA Title I), but what was passed applied to all section of the ADA and Section 504.

• The advocates wanted a broad expansion of rights—the “Americans with Medical Impairments Act”. They got most of what they wanted.

• EEOC regulations and OCR guidance confirm a very broad interpretation under the ADA and Section 504

13


Temporary Impairments under the ADAAA

• Summers v. Altarum Institute, Corp., No. 13-1645 (4th Cir. Jan. 23, 2014)

• The first federal Circuit Court to apply the ADAAA expanded definition of disability

• Held that a temporary impairment can be a disability if it is “sufficiently severe”

14


Implications for Students

• Most medical and psychological issues are going to be ADA and Section 504 issues

• This broad definition affects

Who can qualify for disability services

Who can seek accommodations in class and in other programs and services

Who can assert rights under the ADA and Section 504 in discipline, suspension leave and other cases

15


Requests for

Accommodations

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Case Study

• Hank was in a serious car wreck over Winter break. His arm is in a cast, his neck in a brace, and it is painful to walk. He’s getting PT several times a week and is on pain medication that can leave him drowsy. He is expected to be fine by the end of the semester. Hank is requesting a note-taker in class and assistance so he can dictate papers. He is also not sure he will be able to physically make it to class often enough to meet the Department’s attendance requirements. He wants to know if there is an option to sometimes skype or get a webcast.

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Question

• Is Hank qualified under the ADA or Section 504?

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Case Study

• Professor Bull is opposed to Hank’s requests for accommodations . He found out that Hank’s accident was the result of his driving while intoxicated, and does not want to enable that behavior. He points out the only allows limited absences; the school is accessible, and Vets with more serious, permanent mobility impairments have no problem getting to class. Hank should man up and get himself to class.

• In addition, there is no precedent for providing remote access to classes.

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Questions

• Are the facts mentioned by Professor Bull relevant to Hank’s request for accommodations?

• Are Hank’s requests reasonable (assistance with dictation of papers; note-taking and the option to Skype classes)?

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Reasonable Accommodations

• Must provide “reasonable accommodations” to students or other program participants that are needed to enable an otherwise qualified individual with a disability to participate in the programs and services, e.g.

Modify policies, procedures and practices

Provide auxiliary aids and services needed for effective communication

Provide specialized tools, equipment or services

Remove physical barriers to accessibility

21


Case Study

• Amy is legally deaf; she lost most of her hearing as a child due to an illness. She can do some speech reading, but uses an ASL interpreter for classes. Her speech can be difficult for many people to understand. As she begins her moot court competition at the end of her first year of law school, Amy says that she will need an ASL interpreter for working with her co-counsel and for all moot court rounds and the same will be true for witness preparation, work with her co-counsel, and all examination and advocacy in Practice Court.

22


Questions

• Would Amy’s requests pose an undue financial or administrative burden on the University?

• Are these requests a fundamental alteration of the requirements of the program?

• Would the analysis change if Amy’s disability was a severe speech impairment, and she needed to type everything out for someone else to read?

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• The individual cannot perform the essential requirements of the program or satisfy legitimate minimum standards.

• Providing the accommodation or modifying a policy would result in a “fundamental alteration” of the nature of the program or service.

• The “accommodation” imposes an “undue financial or administrative burden.”

• Direct threat to the individual or others.

• These decisions are made by the University, not individual instructors or Departments.

Defenses

24


Fundamental Alteration

of the Program • In Southeastern Community College v. Davis, the

Supreme Court rejected a request by a deaf nursing student to waive a requirement that everyone participate in a rotation in an emergency room, finding that this was fundamental to the way the college designed its nursing program.

• In Casey Martin v. PGA, the Supreme Court found that the PGA’s refusal to allow a disabled pro golfer to use a cart violated the ADA, finding that Martin would not receive an advantage over other players and this rule was not fundamental to the game

25


Principles

• The program or institution is not required to “lower or to effect substantial modifications of standards to accommodate a handicapped person.”

• “Eligibility requirements are deemed ‘essential’ or ‘necessary’ when such requirements are reasonably necessary to accomplish the purposes of a particular program.” Cole v. Nat'l Collegiate Athletic Ass'n, 120 F. Supp. 2d 1060, 1070 (N.D. Ga. 2000)

• “Educational institutions are granted deference regarding accommodations that would devalue an academic degree.” Wynne v. Tufts Univ. Sch. of Med., 976 F. 2d 791, 795 (1st Cir. 1992)

26


Recent Changes and Enforcement Priorities

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HIV/AIDS and Other Denial of Services

• A high priority for DOJ and will get an immediate referral to D.C.

• Outright denial of services (e.g. Milton Hershey School); denial or delay in providing services (various health care providers)

• Students with Hepatitis C denied admission to NJ Medical and Dental Colleges

• Additional requirements not imposed on others

28


Communication Issues Under the 2010 DOJ Regulations

• Emphasis on timely “effective communication”

• DOJ found that many public accommodations have not been meeting their obligation to provide effective communication to individuals with hearing and vision disabilities

• DOJ’s view is that you must be prepared to offer accommodations, not wait until the request to start investigating (e.g. medical services, public events)

29


DOJ Testing Rules

• Technically apply only to private entities offering exams or courses (College Board, LSAC, Medical boards, etc.)

• The principles expressed on documentation and what are reasonable accommodations in testing apply equally to schools

• Must be reasonable and limited to the need requested

• Considerable weight given to past accommodations, esp. in an IEP or 504 Plan

30


Website and On-line Course Accessibility

• DOJ and OCR take the position that all websites and all on-line programming must be accessible under current law

• DOJ and OCR are very actively investigating and enforcing these principles

• DOJ has not issued final regulations on which standard must be met, and may not do so for years, but that is not a defense

31


Dudley v. Miami University

• Blind student, represented by Disability Rights Ohio, sued in 2014 alleging discrimination under ADA Title II. DOJ intervened in May 2015 as a Plaintiff.

• Vendor products alleged to be inaccessible include PowerPoint, Google Docs, YouTube and coursework management software from Pearson, LearnSmart, Sapling, Turnitin, Vista Higher Learning and WebAssign

32


Other Alleged Violations

• Website pages that do not work with screen readers, included untagged PDF documents

• Failing to convert books and docs in a timely manner with barriers and doing so inaccurately (e.g. errors in OCR conversion, no translation of symbols and images); limiting conversion to materials students purchased

• Using PPT’s and web videos in classes without simultaneous translation or captioning for blind or deaf students

• Advertising of events by school groups, including homecoming, that was not accessible

33


Nat’l Assn of the Deaf v. Harvard

• Suit targets accessibility of on-line programming

• Similar claim against MIT

• DOJ has entered the case

34


A Mixed Blessing

• Technology as the potential to expand when and how people with various disabilities have access to education

• But the rapidly changing technology often has not been accessible

• Even large sophisticated businesses and institutions have trouble keeping up.

35


US v. UNK

• United States v. Univ. of Nebraska at Kearney, 940 F. Supp. 2d 974 (D. Neb. 2013)

DOJ brought case on behalf of students who were denied permission to have their small dogs allowed in their dorm rooms as “emotional support animals”

• DOJ and UNK filed cross motions for partial summary judgment. DOJ’s motion was granted

• Holding: The Fair Housing Act applies to college and university housing. Dorms are considered “dwelling units” for FHA purposes

36


FHA and Section 504—Are all Animals Permitted?

• Maybe—with documentation

• HUD and the Department of Education have used a broader definition under the FHA and Section 504 than DOJ. So does DOT for airlines

• HUD issued guidance (April 2013) and several well-publicized cases under Section 504 on campuses

• Includes “emotional support” and “therapy” animals

37


Implications ● Schools can only require documentation from a

qualified health professional confirming the animal is a support animal

● Under the FHA and Section 504, an animal may only be excluded after an individualized inquiry that the specific animal poses a direct threat to the health, safety, or property of others

● Under all laws, assistance animals do not need to certified, have completed training, wear an identifying tag or be on a leash or harness

● However, there may be other limits that can be imposed (e.g. keeping animals with you at all times)

38


Conduct and Behavior

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Case Study • Larry has Asperger’s Syndrome. He is extremely

intelligent, but is dismissive of those who he thinks are less so. He has poor social skills and habits; he can never keep his shirt tucked in. In interpersonal communication he will often stand too close and can become upset or argumentative if you do not understand his point or disagree with him.

• During his first year of graduate school a number of classmates and professors complained about these behaviors, and sometime had trouble containing his classroom comments. His final grades were all above average.

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Questions

• Does Larry’s behavior violate any of the University’s rules? If so, is the School required to accept his behavior?

• Some students report that Larry’s behavior is disturbing and they are concerned. Is that a basis for any action?

• Is Larry capable of meeting the essential requirements of the program?

41


Case Study • Jason has been going downhill all second semester. Self-

medicating with booze and illegally obtained prescription drugs to deal with the stress of school, and prone to angry outbursts and rage. He has “anger management issues”. He finally lashed out one night and hit his girlfriend Sue.

• The police arrested him for assault, possession of illegal substances and resisting arrest. Jason is doing out-patient rehab and attending AA meetings. Under the plea bargain Jason will do limited jail time for assault, then probation and counseling after final exams. The other charges would be dropped.

42


Questions

• Has Jason’s conduct violated the University’s Conduct Policy?

• What is the impact of Jason’s medical diagnosis on any sanction?

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• “Disability” is not an excuse for violating conduct rules,

poor performance or attendance, etc. Examples:

Sexualized behavior by a student with prior history of abuse and a diagnosis of PTSD

Verbal or physical assaults brought on by uncontrolled manic disorder

• A University does not have to excuse conduct that has already occurred (e.g. remove discipline or a bad grade) or give another chance, if all similar cases have been treated the same

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• Going forward, if the student can show that the disability is a contributing factor (e.g. illness affecting classroom performance) the University may need to consider accommodations (e.g. medical leave, allowing the student to take an incomplete)

45


Safety Issues, Medical Risks and Direct Threat

46


Case Study

• Abbie is a freshman living in the dorm. During the Fall other students have reported signs of anorexia and that she is exercising obsessively. Abbie met with a counselor but claims to be fine. After spring break Abbie’s mom called very concerned, and wants Abbie barred from using the gym or club sports.

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Questions

• What can a school legally do in these and similar circumstances?

• What should the school do?

48


The Need is Increasing

• In the 2013 National College Health Assessment 1/3 of college students reported difficulties in function due to depression and 50% felt overwhelming anxiety

• 2015 CCMH Report of students receiving counseling-49% had mental health concerns, 10% had been hospitalized and 9.5% had made one suicide attempt

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What is the School’s Role?

• In Loco Parentis?

• Provider of mental health services? How much? And what duties when those services end?

• Or a place of education?

50


Case Study • Unbeknown to his lawyer or psychiatrist, Jason has

started texting Sue. These texts contain rants against the police, and apologies mixed with anger that she called the police. He blames the University for his problems, and singles out one professor by name, but there is no specific threat. Sue is scared of Jason, and has been staying away from campus except for classes to avoid running into him. She provides these texts to the Dean’s office, and mentions that Jason has a rifle and shotgun he uses for hunting, and an AK-47 for target shooting.

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Questions

• BU’s internal guidance on mental health issues and student conduct describes a spectrum: concerning behavior, alarming behavior and threatening behavior. This is clearing alarming to Sue, but is it threatening?

• This is off-campus behavior having on-campus effects. Does that matter?

• Is this a mental health intervention issue, a code of conduct issue, both or something else?

• Can Jason be suspended or barred from campus as a direct threat to the health and safety of others due to his mental health issues?

52


Safety Issues

• A College can apply neutral, non-discriminatory safety requirements that apply to all students, regardless of disability Analogy -- height or weight requirements for amusement park

rides—can be applied uniformly to other activities

Cannot be disability specific

• A College cannot exclude students with disabilities from participating in a particular program or activity, based upon the risk of injury to others unless this rises to the level of a “direct threat”

53


What is a Direct Threat?

• A “direct threat” is

a significant risk of substantial harm to health or safety of others

that cannot be eliminated or reduced to below the level of a direct threat through reasonable accommodations

• Consider • the duration of the risk; • the nature and severity of the potential harm; • the likelihood and the imminence that the potential

harm will occur

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Determining Whether a Direct Threat Exists

• This determination • must be based on an individualized assessment

of the individual’s present ability to safely participate in the program

• must be based on the most current medical or psychological knowledge or the best available objective evidence

• cannot be based on speculation or assumptions

• This is a high standard to meet

55


Direct Threat to Self

• When the EEOC issued its regulations under ADA Title I for employees, it included as a defense direct threat to the health and safety or others

• The DOJ regulations under ADA Title III did not mention threats to self, and in revised regulations in 2010 DOJ did not mention threats to self in connection with ADA Title II and III

56


OCR Positions on Direct Threat Policies

a. May exclude students from participation, or place conditions, if the student “presents a direct threat (i.e. a high probability of substantial harm to the health and safety of others)

Cannot exclude based upon direct threat to self

Would impact any policy or practice on involuntary removal or other restrictions due to medical conditions

57


Back to Culture

• Awareness and sensitivity by all

• Independence, responsibility and accountability for students

• Flexibility by Instructors

• Communicating the role of the school in student mental issues

• Managing and balancing risks

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Contact Information

Robert L. Duston 202.342.3415 (o) 703.338.6353 (c) [email protected] To access past Alerts and other information on our

Higher Education and Labor, Employment and Employee Benefits practices, go to www.saul.com, click “Industries/Practices” and then the applicable group.

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Washington

1919 Pennsylvania Avenue, N.W. Suite 550 • Washington, DC 20006-3434 • T: 202.333.8800 • F: 202.337.6065

Wilmington 222 Delaware Avenue • Suite 1200 P.O. Box 1266 • Wilmington, DE 19899 • T: 302.421.6800 • F: 302.421.6813

Chesterbrook 1200 Liberty Ridge Drive, Suite 200 • Wayne, PA 19087-5569 • T: 610.251.5050 • F: 610.651.5930

Pittsburgh One PPG Place • Suite 3010 • Pittsburgh, PA 15222 • T: 412.209.2500 • F: 412.209.2570

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