AHEAD Documentation Guidance PowerPoint

Section 504/Titles I, II, & III
2012 AHEAD Guidance
Paul D. Grossman, J.D.
Adjunct Professor of Disability Law
Hastings College of Law, U.C.
Jean Ashmore
Emeritus Director, Rice University
Past President, AHEAD
Introduction and Summary
Journey to the 2012 AHEAD Guidance
The original Supreme Court construction of an
“impairment that substantially limits a major
life activity,” as in Arline, is sound and
The Section 504/ADA definition of disability, as
intended by Congress and reflected in Arline, is
subsequently “twisted” by the Supreme Court
2008 -The ADAAA is enacted to “restore” the
original definition
Journey to the AHEAD Guidance (cont.)
2011 - EEOC’s Title I Regulations implementing ADAAA
promulgated with 9 guiding rules of construction and
limited discussion of documentation
2010 - DOJ Regulations & Statutory Guidance
implementing Title III concerning testing entities &
licensing authorities, etc. contain extensive provisions
and guidance on documenting disabilities
2011 - DOJ states Title III guidance applies to Title II
2013 - AHEAD wraps it all up with Supporting
Accommodation Requests: Guidance on Documentation
An Ultra-Succinct
Judicial/Legislative History
Pre-ADAAA Supreme Court Decisions
1987 : School Bd. of Nassau Cty. v. Arline
Repeated hospitalization for TB is sufficient to establish a
“substantial impairment of a major life activity.”
Discrimination against contagion is fear of disability
The question of disability and qualification are distinct issues.
It should not be hard to get to the second issue.
1999: Sutton Trilogy— mitigating measures count, even
internalized self-implemented measures
2002:Toyota v. Williams
Carpal tunnel syndrome—MLA manual skills
“Substantial” is a very demanding standard
Major life activities are activities of central importance to daily
living. If you can do these other limitations don’t count
Impact of Supreme Court Decisions
Over 90% of ADA, Title I claims, failed to withstand an
employer’s motion for summary judgment on the
grounds that the Plaintiff was not an individual with a
Examples of persons not found “disabled” include
persons with monocular vision, deaf in one ear,
missing one limb, breast cancer in remission, clinical
depression, an individual with a profound intellectual
Back to Arline and
the Intent of Congress
The ADAAA of 2008:
Same Lyrics But a new Tune
Can Congress Really Tell the
Supreme Court How to Think?
It depends
Constitutional interpretation, the Supreme
Court is the final word.
Statutory construction, Congress can have
another bite at the apple.
Precedent, Title IX restoration act overruling Grove
City v. Bell
Essential Change Elements
Sources of the Change
Prongs Matter
Some Impairments Are Very Likely Disabilities
Some Are Impairments Are Case by Case
Some Individuals Remain Uncovered
The Root Sources Behind the Change
The ADAAA (itself) and the Equal Employment
Opportunity Commission’s (EEOC) Revised ADA
Regulations for Title I, Implementing the ADAAA and
accompanying Statutory Guidance
 (Published in the Federal Register on 3/25/2011)
Don’t miss the guidance. It’s more useful than
spending the night at a Holiday Inn Express.
Historic Constant: The Same Lyrics
The three prongs of the definition of “disability”
 Physical or mental impairment that
substantially limits a major life activity,
 A record of such an impairment,
 Or being regarded or perceived having such an
The Prong Chosen Matters
Major life activities and substantiality are pertinent
only to prongs I and II—a big part of the new tune
This means prong III, which is only about
impairments, is the easiest to prove
Prong III does not include the duty to accommodate
and has a exception
How Did Congress and the EEOC
Change the Tune?
Regrinding the Cognitive Lenses of
the Courts with
Nine New Rules of Construction
Rules #1-#3
Defining “Substantially Limits”
“Substantially limits” is to be construed broadly and is
not meant to be a demanding standard
The impairment need not prevent or severely restrict
a major life activity, but not every impairment is a
disability. [Repudiation of Toyota v. Williams.]
The primary object of attention is whether
discrimination occurred; whether an impairment
substantially limits a major life activity should not
demand extensive analysis. [Think Arline.]
29 CFR §1630.2(j)(1)(i)-(iii)
Rules #6
(#4 & #5 Later)
The determination of whether an impairment
substantially limits a major life activity shall be
made without regard to the ameliorative effects
of mitigating measures. [Repudiation of the
Sutton trilogy.]
29 CFR §1630.2(j)(1)(vi)
Rules #7
An impairment that is episodic or in remission is
a disability if it would substantially limit a major
life activity when active. [Think depression.]
29 CFR§1630.2(j)(1)(vii)
Rules #8 & #9
An impairment has to substantially limit only one
major life activity, not more than one. [Repudiation
of Toyota v. Williams.]
An impairment that is temporary – e.g., one that
will last or expect to last fewer than six months –
[nonetheless] can be substantially limiting. [E.g.
some broken legs.]
29 CFR §1630.2(j)(1)(viii)-(ix)
Rules Lead to “Predictable Assessment”
Impairments “Virtually Always” Covered
Given their inherent nature, certain types of
impairments will, as a factual matter, virtually
always be found to impose a substantial limitation
on a major life activity.
Therefore, with respect to these types of
impairments, the necessary individualized
assessment should be particularly simple and
29 CFR §1630.2(j)(3)(ii)
Named Physiological Impairments with
Predictable Assessment Outcomes
Deafness as it substantially limits hearing;
Blindness as it substantially limits seeing;
An intellectual disability (formerly termed
mental retardation) as it substantially limits
brain function;
Partially or completely missing limbs or
mobility impairments requiring the use of a
wheelchair substantially limit musculoskeletal
29 CFR §1630.2(j)(3)(iii)
More Named Physiological Impairments
with Predictable Assessment Outcomes
Autism as it substantially limits brain function;
Cancer as it substantially limits normal cell growth;
Cerebral palsy as it substantially limits brain function;
Diabetes as it substantially limits endocrine function;
Epilepsy as it substantially limits neurological function;
Human Immunodeficiency Virus (HIV) infection as it
substantially limits immune function;
Multiple sclerosis & muscular dystrophy as they
substantially limit neurological function
29 CFR §1630.2(j)(3)(iii)
And more… Named Psychological
Impairments with Predictable Assessment
Major depressive disorder,
Bipolar disorder,
Post-traumatic stress disorder,
Obsessive compulsive disorder, and
[All substantially limit brain function.]
29 CFR §1630.2(j)(3)(iii)
Some Impairments Do Not Qualify as Predictably a Disability.
Then the Yardstick is Condition, Manner, and Duration
With regard to these impairments in particular, a
“condition, manner or duration” framework can be
helpful.” This is also where the comparison to “most
people in the general population” is relevant
“For example, one may consider the difficulty, effort,
or time required to perform a major life activity; the
pain experienced when performing a major life
activity; or the length of time a major life activity can
be performed.”
29 CFR §1630.2(j)(4)(i)-(ii)
Condition, Manner, and Duration
The relevant inquiry is how a major life activity is
substantially limited, not on what an individual can
do in spite of an impairment. [Think Toyota]
May consider:
 Effort or length of time required to perform major
life activity
 The comparison of an individual's limitation to the
ability of most people in the general population.
Impairments on a Spectrum
(Non-predictable impairments)
A back or leg impairment
 Consider the length of time she can stand, the distance she can walk, or the
weight she can lift will matter
 Consider the length and severity of the limitation in respiratory functions and
breathing compared to most people, as indicated by the effects experienced
when exposed to substances such as cleaning products, perfumes, and
cigarette smoke
Non-chronic impairments usually of short duration, usually with little or no
residual effects
Learning disabilities
Still a Difficult Issue:
Learning Disabilities
Bottom line analysis should not prevail:
“An individual with a learning disability who is substantially
limited in reading, learning, thinking, or concentrating compared
to most people, as indicated by the speed or ease with which he
can read, the time and effort required for him to learn, or the
difficulty he experiences in concentrating or thinking, is an
individual with a disability, even if he has achieved a high level of
academic success, such as graduating from college. The
determination of whether an individual has a disability does not
depend on what an individual is able to do in spite of an
impairment. [Emphasis added] [Think Bartlett v. NYSLE.]
(Appendix Title I regulations.)” (Also see, Senate Manager’s report.
How Does an LD Individual Compare to
the Most People Standard?
Condition, manner, duration comparison is now to
“most people in the general population,” how does
this standard work for LD persons?
Learning disabilities, such as dyslexia, are commonly
diagnosed on the basis of “intra-individual”
differences in two or more domains
How does the magnitude of these differences
compare to most persons in the general population?
Not Predictable, Focus on Condition,
Manner and/or Duration
The focus is on how a major life activity is substantially
limited, and not on what outcomes an individual can
achieve. [Think: Bartlett v. NYSLE]
“For example, someone with a learning disability may
achieve a high level of academic success, but may
nevertheless be substantially limited in the major life
activity of learning because of the additional time or effort
he or she must spend to read, write, or learn compared to
most people in the general population.”
You do not need to do a “condition, manner, duration”
analysis for everything! (This is primarily for impairments
on the spectrum.) 29 CFR §1630.2(j)(4)(iii)
Transitory and Minor
Impairments that are BOTH transitory and minor are
excluded from coverage under the third prong.
• Transitory means – lasting six months or less. No
such arbitrary rule exists for Prong I and II
• Minor means – minor!
• An impairment that may last for 6 months or less,
but is not minor, IS covered.
• An impairment that is minor, but will last for more
than 6 months, IS covered.
29 CFR §1630.15(f)
Some Things Are Still Not Disabilities
Non-chronic impairments of short duration with
little or no residual effects
Impairments that are transitory (six months or less)
and minor
Common cold or influenza
Seasonal allergies
Sprained joint
Minor and non-chronic gastrointestinal disorders
Broken bone that is expected to heal completely
Pregnancy without complications
Correctable vision
Most Pertinent to Documentation:
Rules 4 & 5
Rule 4. The determination of whether an impairment
substantially limits a major life activity requires an
individualized assessment. However, in making this
assessment, the term "substantially limits" must be
interpreted and applied to require a degree of
functional limitation that is lower than the standard for
"substantially limits" applied prior to the ADAAA.
[Emphasis added.]
Rule # 5 – MOST pertinent to
Documentation for Learning Disabilities
“The comparison of an individual’s performance of a
major life activity to the performance of the same
major life activity by most people in the general
population usually will not require scientific, medical,
or statistical analysis. Nothing in this paragraph is
intended, however, to prohibit the presentation of
scientific, medical, or statistical evidence to make
such a comparison where appropriate.’’ [Emphasis
Title I regulation Section 1630.2(j)(1)(v).
Implications for Documentation
Onward to Title III (and II)
28 C.F.R. Part 28. section 36.102
Section-by-Section Commentary:
Title III Regulation 2010 Guidance and Sectionby-Section Analysis for Section 36.309
Title III Documentation Guidance
Regarding Examinations
Under the definitions section of the Title III
regulation 28 C.F.R. Part 28. section 36.102, Title
III covers:
“Private entity that offers examinations courses
related to applications, licensing, certification, or
credentialing for secondary or postsecondary
education, professional, or trade purposes.” 36.102
“Private entities” that offer “examinations and
This Also Applies to Title II!
“While the Department considers these requirements to
be sufficient to ensure that examinations and courses
administered by public entities meet the section 309
requirements, the Department acknowledges that the
title III regulation, because it addresses examinations in
some detail, is useful as a guide for determining what
constitutes discriminatory conduct by a public entity in
testing situations. See 28 CFR 36.309.”
Title III Regulation 2010 Guidance and
Section-by-Section Analysis for Section 36.309
DOJ’s Guiding
Documentation Principles
“[The entity must assure that] any request for
documentation, if such documentation is required,
is reasonable and limited to the need for
modification, accommodation, or auxiliary aid or
service requested.”
28 C.F.R. Section 36.309(b)(iv)
DOJ’s Guiding Documentation Principles
“When an applicant’s documentation demonstrates
a consistent history of a diagnosis of a disability
is prepared by a [qualified] professional
who made an individualized determination of the
there is little need for further inquiry … and
generally testing entities should grant the requested
… accommodation ….”
Title III Regulation 2010 Guidance and
Section-by-Section Analysis for Section 36.309
Presumption of Validity in the Work of a
“Qualified Professional”
“[W]hen testing entities receive documentation provided by
a qualified professional has made an individualized
assessment of an applicant that supports the need for …
accommodation …requested, they shall generally accept
such documentation and provide the accommodation.”
“[I]t is critical that testing entities that review
documentation … ensure that their own reviews are
conducted by qualified professionals with similarly relevant
Title III Regulation 2010 Guidance and
Section-by-Section Analysis for Section 36.309
Who Is a Qualified Professional
Entitled to Such Deference?
Must be appropriate to the impairment
A podiatrist can’t assess for a learning disability
Doctors, psychiatrists, psychologists
Nurses, physical therapists, occupational therapists,
speech therapists, vocational rehab. Specialists
School counselors
Licensed mental health professionals
Title III Regulation 2010 Guidance and Section-by-Section Analysis
for Section 36.309
Any significance to not mentioning an LD Specialist?
Requirement that the Assessment
is “Individualized”
Not only must it be done by a qualified
The assessment must also reflect that “the
qualified individual has individually and personally
evaluated the candidate as opposed to simply
considering scores from a review of documents.”
Title III Regulation 2010 Guidance and
Section-by-Section Analysis for Section 36.309
“Individualized” in the LD Context
“This is particularly important in the learning
disabilities context, where proper diagnosis
requires face-to-face evaluation.”
“Reports from experts who have familiarity with the
candidate should take precedence over those from,
for example, testing agencies, who have never
personally met the candidate or conducted the …
Title III Regulation 2010 Guidance and
Section-by-Section Analysis for Section 36.309
DOJ’s Examples of Information that Should
be Considered from Qualified Assessor
Results of psycho-educational or other professional evaluations
An applicant’s history of diagnosis
Participation in special education
Observations by educators
An applicant’s history of diagnosis
An applicant’s past use of testing accommodations
“If an applicant has been granted accommodations post-high
school by a standardized testing agency, there is no need for
reassessment for a subsequent examination.”
Title III Regulation 2010 Guidance and
Section-by-Section Analysis for Section 36.309
Weight Should be Accorded
to Past Accommodations
“[T]he entity [must assure that it] gives
considerable weight to documentation of past
accommodations … received in similar testing
situations, as well as … accommodations … in
response to an (IEP) provided under the IDEA or a
section 504 (Plan)…” 36.309(b)(v)
Past use of an IEP or 504 Plan “provides critical
Title III Regulation 2010 Guidance and
Section-by-Section Analysis for Section 36.309
LD but no IEP or 504 Plan?
The lack of an IEP or 504 Plan should not be
treated as a barrier to establishing a need for an
Also relevant are
 A history of informal accommodations
 Other private school arrangements
ADHD Example
“[C]onsiderable weight is warranted when a student
with a Section 504 Plan in place since middle school
that includes the accommodations of extra time and
a quiet room is seeking the same accommodations
from a testing entity…. In this example the entity
should clearly grant … the accommodation.”
Title III Regulation 2010 Guidance and
Section-by-Section Analysis for Section 36.309
Learning Disability Evaluation
Frequency Requirements?
An attributed point?
“One disability rights organization noted …. ‘[t]here is
not scientific evidence that learning disabilities abate
with time, nor that Attention Deficits abate with time
***.’ This organization noted that there is no
justification for repeated subjecting people to testing
regimes just to satisfy a disbelieving industry. This is
particularly true for adults with, for example, learning
disabilities such as dyslexia ….”
Title III Regulation 2010 Guidance and
Section-by-Section Analysis for Section 36.309
Prompt Appeal/Supplement Process
Required of Testing Entity
“[The entity shall assure that it] responds in a timely
manner to requests for modifications, accommodations, or
aids to ensure equal opportunity for individuals with
disabilities.” 36.309(b)(vi)
“Testing entities are to ensure that their … process
provides applicants with a reasonable time to supplement
… with additional information, if necessary, and still be able
to take the test in the same testing cycle.”
Title III Regulation 2010 Guidance and Section-by-Section Analysis for Section
Analogous to colleges?
On to the AHEAD Documentation
(APRIL 2012)
The Key Perspective of the Guidance
Reflected in One Question
“Would an informed and reasonable person
conclude from the available evidence that a
disability is likely and the requested
accommodation is warranted?"
Highlighted Concepts
A more individualized review
A “commonsense” standard
A non-burdensome process
Reviewing requests for accommodation is different than
providing “treatment”
In requesting and initiating accommodations
Evaluating and weighing what is relevant information
from the new perspective created by
The ADAAA, its regulations and guidance
The new DOJ Documentation Guidance found in the Title III
regulations and guidance.
 Current not necessarily “recent”
What’s Wrong with a Strict Reliance
on Documentation?
Postsecondary institutions may request a reasonable
level of documentation. However, requiring extensive
medical and scientific evidence:
 “Perpetuates a deviance model of disability”
 “Undervalues the individual’s history and
experience with disability”
 “Is inappropriate and burdensome under the
revised statute and regulations”
Sources and Forms
of Documentation
Primary Documentation
The student is a vital source of information regarding how he or
she may be “limited by impairment.”
A student’s narrative of his or her experience of disability,
barriers, and effective and ineffective accommodations is an
important tool.
 “Only through understanding an individual's experience in
context that we can translate diagnostic evaluations into
useable information on the barriers and facilitators to access
and full participation.”
A structured interview or questionnaire, interpreted through
professional judgment, may be sufficient for establishing
disability and a need for accommodation.
Past History From Self-Report
Barriers and problem situations
Facilitators and accommodations
Tools and adaptive devices
Social networks and assistive services
Skills and compensatory strategies
Resources and collateral support services
Secondary Documentation
Observations by disability professional
Interaction with disability professional
Professional conclusions of all information
“The weight given to the individual’s description will
be influenced by its clarity, internal consistency,
observed behaviors, congruency with available formal
documentation results, and clinical narrative.”
Tertiary, Third-Party or
External Documentation
Educational records
Medical records
Reports and assessments
Psychoeducational evaluations
IEPs and 504 Plans
Summary of performance (SOP)
Record of receiving services through a Response to
Intervention (RTI) process
Teacher observations
Information on previous use of accommodations,
formal and informal
Summary of Examples of Documentation
that Should Generally be Accepted
Recommendations of qualified professionals familiar
with the individual
Results of professional evaluation
History of diagnosis
Observations by educators
Past use of accommodations
Self-reporting is pertinent
Professional Judgment
Sometimes More will be Needed
Purposes of ALL Documentation
Support disability professional in understanding:
 The student’s disability experience
 How disability may impact the student in the
academic setting
 Making informed decisions about
NOT to meet a static protocol for information
that needs to be “on file”
In this Process Your
Professional Opinion Matters
“Professional judgment is an essential
component of this process.”
The Process for Applying Your
Professional Opinion
A deliberative and collaborative process … in a
structured exchange … exploring
 Previous educational experiences, past use of
 What has been effective and ineffective in
providing access
Weight Given to Student
Report Depends on
Internal consistency
Congruency with the professional’s observations
and available external documentation
“It is often possible to evaluate whether a
requested accommodation is reasonable or not
with minimal reliance on external
“True even if the student has never received formal
accommodations or recently acquired a disability and
is seeking guidance to determine accommodations
that might be effective.”
“HOWEVER”– Tertiary Documentation
May Still be Necessary
“[I]f the student is unable to clearly describe how
the disability is connected to a barrier and how the
accommodation would provide access, the
institution may need to request third party
documentation focused on illustrating that
“[In which case,] the documentation process must
be accessible …. [T]the office must consider
flexibility in its processes.”
Documentation May Still be Necessary
“[I]f you and the student cannot describe a potential
connection or identify the potential documentation
that would support the request, the accommodation
may not be reasonable.”
“This might be an appropriate time to discuss the
nature and extent of the student’s disability with
external experts, such as the clinician involved,
especially if you are unfamiliar with the disability or
the student has several impairments which interact in
ways with which you are unfamiliar.”
What Are the Elements of a
“Flexible Process”
1. Individual Review
2. The application of Commonsense Standard
3. A Non-Burdensome Process
4. Reliance Upon Current but not necessarily recent
Individual Review
“[T]he salient question is not whether a given
condition is a “disability,” but how the condition
impacts the student.”
“This determination is to be liberally construed to the
maximum extent possible.“
As Congress said, “Substantial limitation is not meant to be
a demanding standard” 29 C.F.R. §1630.2(j)(1)(i).
As the EEOC said, “Substantially limits shall be construed
broadly in favor of expansive coverage, to the maximum
extent permitted.”
Another Element of Individualization:
The Course Counts Too
“Institutions should consider the student’s
disability, history, experience, request, and the
unique characteristics of the course”
Properly choosing an accommodation “requires
an evaluation of the unique attributes and
requirements of the course, program, or activity.”
“Course modifications or auxiliary aids or services
that are ineffective or constitute a fundamental
alteration will not be reasonable.”
Commonsense Standard
“Disability and accommodation requests should be
evaluated using a commonsense standard, without the need
for specific language or extensive diagnostic evidence.”
“No third party information may be necessary to confirm
disability or evaluate requests for accommodations when
the condition and its impact are readily apparent or
comprehensively described.”
“Using diagnostic information as a tool in reviewing
requests for accommodation is different than using it for
treatment.” Less is required for the accommodation
A Non-Burdensome Process
The non-burdensome standard is applicable to:
Initially establishing a relationship with the disability
resource office
Setting up individual accommodations from institutional
personnel, including course instructors
“Students should not be required to bear
responsibility for achieving access through
cumbersome, time consuming processes.”
See, Guckenberger v. Boston University,
974 F Supp 106, 135-136 (D. Mass. 1997)
Current and Relevant Information
“Disabilities are typically stable lifelong conditions.”
“[H]istoric information, supplemented by interview or
self-report, is often sufficient to describe how the
condition impacts the student at the current time and
in the current circumstances.”
“Institutions should not establish blanket statements
that limit the age of acceptable external
“Determining accommodations in distinctly new
contexts may require more focused information ….”
DS Moving forward – on documentation
Review & evaluate current documentation
This process reveals overall DS features
 Mission – Compliance vs Resource
 DS Philosophy – Medical or Social Model of
DisabilityMediorSocial Model of Disability
 Processes and policies in place – Laborious or
Other DS areas to scrutinize
Messaging from DS – Proof or Welcomerooe
Knowledge about campus environment – Poor
to Good
Goals of the DS unit – Maintain or
Modify and update to reflect best practices
Documentation – DS’s front door?
What information is requested from students and
Are all students required to bring third-party
paperwork with them to document disability
and/or substantiate previous accommodations?
Does DS schedule initial interview appointments
only after getting disability documentation?
?? Is external documentation itself the DS front
door which opens only when it is presented??
Documentation decision-making
Is our own professional comfort with decision-making
influenced by presence or absence of external
Do we value what a diagnosing professional tells us a
person needs in our environment more than what we
empirically know about the campus and academic
demands, perhaps diminishing our judgments?
How do we build confidence with documentation for
accommodation requests when we may not have the
“paperwork” that gave us comfort in the past?
Building documentation confidence
– Jean’s A, E, I, ….tips
Assess and affirm your own comfort with the various
forms of documentation
Establish consistent processes and practices rather
than rigid policies with identical requirements for all
 Each person’s experience of & with disability is
unique – true for you as well as your students
Integrate your professional opinion in your
accommodation decision making – your
comprehensive, documented information can itself be
thorough and sufficient documentation
… O & U tips
Orient yourself to a “barrier perspective” – what
creates barriers for which accommodations may be
needed? This perspective can lead to better
understanding of the environment and how it disables
Use your accumulated professional knowledge and
expertise with campus environments as solid bases for
assessing disability information from all sources
Result – a new world of Disability Resources & Services
SAMPLE - Welcoming documentation
“Disability Resources invites students who request
reasonable accommodations to meet with staff to discuss
their past use of accommodations and disability-related
barriers they anticipate or are experiencing. While no
external paperwork may be necessary to establish
accommodations, medical records, psychoeducational
testing and school records (such as an IEP or 504 Program)
may help guide our conversation and provide information
about specific requests. If this type of information is
available, please submit it or bring it to your first meeting.
Please don't delay meeting with us out of concern for not
having appropriate paperwork.” Eastern Michigan Univ.
Original Sources
For all DOJ guidance go to ADA.gov
For all EEOC guidance go to EEOC.gov
For all AHEAD guidance go to AHEAD.org
Thank you
Paul Grossman
[email protected]
Jean Ashmore
[email protected]

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