Guckenberger v. Boston University, 974 F.Supp. 106, 135

© AHEAD. The material contained in this slideshow is not
intended as, or a substitute for, legal advice and is meant only
for use in conjunction with today's web conference. Official
AHEAD statements about documentation are available at:
◦ Jean Ashmore
Jo Anne Simon
◦ Scott Lissner
Carol Funckes
Framework review
Implementation discussion
o Submitted early
o During presentation
Documentation to establish eligibility as person with
disability entitled to accommodations – basis for:
◦ Earliest guidance focused on learning disabilities, based
on discrepancy model diagnosis
◦ Second edition of guidance - not disability specific,
heavily based on evidence to prove disability, requiring
external documentation
Developed in response to AHEAD Board of Directors’
recognized need for an update due to
◦ changes in laws, regulations
◦ evolving understanding of disability experience
A conceptual framework for professional practices, not a
list of guidelines
Replaces and supersedes previous documentation
guidance editions
“As social movements mature, they begin to look beyond
the ‘letter of the law’, which emphasizes ethics and values,
and promulgate systemic changes in attitudes, behaviors
and institutional structures.”
Leslie Kanes Weisman
Understanding of disability
Understanding of accommodation
Enforcement experience
The statute
The regulations for Titles II & III
The regulations for Title I
“Any change, even a change for the better, is always
accompanied by drawbacks and discomforts.”
Arnold Bennett
Disability Studies Scholarship
◦ Challenge the dominant view of disability
◦ Explore social, political, cultural and economic factors
◦ De-stigmatize disease, illness and impairment
◦ Question personal and collective responses to difference
◦ Informs service delivery
Diversity Perspective
Universal Design
U.N. Convention on the Rights of Persons with Disabilities
 Mental
or Physical
 Substantial
 Major
Life Activity
Includes but not limited to, caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating*, and
*Added to the EEOC’s regulations
Normal Cell Growth
The comparison of an individual's limitation to the ability of most
people in the general population often may be made using a
commonsense standard, without resorting to scientific or
medical evidence.
No legislation or regulations require that documentation be
requested or obtained in order to demonstrate entitlement
to legal protections because of disability and seek
reasonable accommodations.
Postsecondary institutions may request a reasonable level
of documentation.
◦ “Any request for documentation, if such documentation
is required, is reasonable and limited to the need for the
modification, accommodation, or auxiliary aid or service
requested.” 29 C.F.R. § 36.309(b)(1)(iv)
Purpose: to understand how the disability is connected to a
barrier and how an accommodation may alleviate the
Changes based on DOJ’s enforcement experience, research and
public comments
Intended to address concerns about inappropriate and
burdensome requests for documentation
Applies to public (Title II) entities including postsecondary
Purpose: to prevent exclusion from educational, professional,
or trade opportunities because of inaccessible exams or
Applies to public and private entities that offer exams or
courses related to applications, licensing, certification, or
Exams or courses must be given in a place and manner
accessible to persons with disabilities, or alternative
accessible arrangements provided.
“The Department [Justice]received one comment requesting that
it specifically include language regarding examinations and
courses in the title II regulation. Because section 309 of the ADA
42 U.S.C. 12189, reaches ‘any person that offers examinations or
courses related to applications, licensing, certification, or
credentialing for secondary or post secondary education,
professional, or trade purposes,’ public entities also are covered
by this section of the ADA.”
Tertiary; Third-Party;
Primary Documentation
• Student’s self-report
Secondary Documentation
• Observation and Interaction
Tertiary, third-party or external documentation
• Information from outside sources
It is 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.
Both Successful
Barriers & Problem situations
Facilitators & Accommodations
Tools & Adaptive Devices
Social Networks & Assistive Services
Skills & Compensatory Strategies
Resources & Collateral Support Services
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.
Give weight to documentation of past modifications,
accommodations, or auxiliary aids or services received in
similar situations including those provided in response to
an Individualized Education Program or Section 504 Plan
or as part of a less formal assistance plan.
Note taking
Timed Tests
Oral Reports
Group Projects
Computer Use
Library work
Class Schedules
Getting Around
Interacting With
“ A learning disability is not measurable in the same way a
blood disease can be measured in a serum test. By its very
nature, diagnosing a learning disability requires clinical
Judge Sotomayor, Bartlett v. New York State Bd.
of Law Examiners; 2001
◦ Recommendations of qualified professionals familiar
with the individual
◦ Results of professional evaluation
◦ History of diagnosis
◦ Observations by educators
◦ Past use of accommodations
Examples From Justice
The significance of a letter or other communication from a doctor
or other qualified professional would depend on the professional’s
relationship with the candidate and the specific content of the
communication, as well as how the letter fits in with the totality of
the other factors used to determine testing accommodations
under this rule.
Similarly, an applicant’s failure to provide results from a specific
test or evaluation instrument should not of itself preclude approval
of requests for modifications, accommodations, or aids if the
documentation provided by the applicant, in its entirety, is
sufficient to demonstrate that the individual has a disability and
requires a requested modification, accommodation, or aid on the
relevant examination
Requires professional judgment
Includes a deliberative, collaborative process
◦ responsive to the unique experience of each individual
Requires an accessible process
◦ if disability impacts a student’s ability to clearly describe
the need for accommodation, the office must consider
flexibility in its processes.
Considers the entirety of a student’s history
◦ Including use of informal, undocumented, but effective
“When considering documentation for a Learning Disability,
institutional guidelines should not rely exclusively on
psychometrics. Guidelines should give deference to the
"clinical judgment" of the evaluator.”
Bartlett v. New York State Bd. of Law Examiners,
156 F.3d 321 (2nd Cir. 1998)
Mt. San Antonio College, OCR Docket
Number 09-96-2151
“Any person that offers examinations or courses related
to applications, licensing, certification, or credentialing
for secondary or post-secondary education, professional, or
trade purposes shall offer such examinations or courses
in a place and manner accessible to persons with
disabilities or offer alternative accessible arrangements
for such individuals.”
When considering requests for modifications,
accommodations, or auxiliary aids or services, the entity gives
considerable weight to documentation of past modifications,
accommodations, or auxiliary aids or services received in similar
testing situations, as well as such modifications,
accommodations, or related aids and services provided in
response to an Individualized Education Program (IEP) provided
under IDEA or a plan describing services provided pursuant to
section 504 of the Rehabilitation Act of 1973…
◦ Reasonable mind might accept as adequate to support a
conclusion; not the result speculation or conjecture
◦ Must be persuaded that the facts more probably
support the position asserted
Clear and Convincing
◦ Must be persuaded by the evidence that it is highly
probable that facts support the position asserted
Beyond a Reasonable Doubt
◦ Must be all but certain of the position asserted
EEOC’S Final Regulations Implementing
Title I of the ADA as Amended
Section 1630.2(j)(1)(v) states:
‘‘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.’’
Establishing right to
"A university is prevented from employing unnecessarily
Burdensome proof-of-disability criteria that preclude or
unnecessarily discourage individuals with disabilities from
establishing that they are entitled to reasonable
Guckenberger v. Boston University, 974 F.Supp.
106, 135-136 (D. Mass. 1997).
“A university is prevented from employing unnecessarily
burdensome proof-of-disability criteria that preclude or
unnecessarily discourage individuals with disabilities from
establishing that they are entitled to reasonable
Guckenberger v. Boston University, 974 F.Supp.
106, 135-136 (D. Mass. 1997).
Establishing eligibility for accommodations
Setting up individual accommodations
◦ Student identification process
◦ Requests for accommodations, including testing, notetaking, interpreting
Consider the disabled student’s experience as compared
with the non-disabled student’s experience
Medical, sensory, cognitive and other types of disabilities
are generally persistent
Students with episodic conditions or disabilities that are in
remission and those who have developed compensatory
skills are protected by the ADA as amended
Compensatory strategies may reduce a student’s use of
accommodation naturally, but the underlying impairment is
still present and may warrant accommodation, particularly
in new or atypical contexts.
Frequent recertification is a special education concept based on
allocating services & funding -not disability
Special Education eligibility is narrowly defined while Congress
made the civil rights protections of the ADA and Section 504
intentionally broad
Initial or continuing eligibility for special education does not
mean the child no longer has a disability
Recent guidance from the DOE indicates that children with
disabilities who may not need special education are still
protected against discrimination by the ADA This letter may be found at The accompanying Questions and
Answers may be found at
Request for documentation should be narrowly tailored to
ascertain the individual's need for the requested
modification or auxiliary aid.
Generally, a testing entity should accept without further
inquiry documentation provided by a qualified professional
who has made an individualized assessment of the
applicant. Appropriate documentation may include a letter
from a qualified professional or evidence of a prior
diagnosis, accommodation, or classification, such as
eligibility for a special education program. Appendix A, 28 C.F.R.
Part 306
Is ‘X’ a disability?... What’s a disability?
If we relax our documentation standards, every student will
be qualified.
How can we ensure that our process is fair and consistent if
we’re not requiring consistent documentation from all
A student requests accommodations but only submits a 504
plan, Individual Educational Plan (IEP), history of Response
to Intervention (RtI) or Summary of Performance (SOP).
What if I can’t find a connection between the condition and
the accommodation based on the documentation the student
What if the student is not available at the time of the
If I accept less documentation, the student won’t have
necessary paperwork to get accommodations at other
schools or on standardized tests.
Examinations and Courses
The requirements contained in title II (including the general
prohibitions against discrimination, the program access
requirements, the reasonable modifications requirements, and the
communications requirements) apply to courses and examinations
administered by public entities that meet the requirements of
section 309. 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.
It remains the Department’s view that, when testing entities
receive documentation provided by a qualified professional
who has made an individualized assessment of an applicant
that supports the need for the modification,
accommodation, or aid requested, they shall generally
accept such documentation and provide the
Supporting Accommodation Requests: Guidance on
Documentation Practices
(Published by AHEAD, 4/14/2012)
Department of Justice: Guidance and Revised ADA Regulations
Implementing Titles II & III
(Published in the Federal Register, 3/15/2011)
Equal Employment Opportunity Commission Guidance and
Revised ADA Regulations for Title I Implementing the ADAAA
(Published in the Federal Register on 3/25/2011)
Tabula Rasa University – Disability Resource Center
Disability Documentation
We will consider any information (including but not limited to your
description of your needs; records of past accommodations and services
from high school, another college state or high stakes testing; formal
psychological or medical evaluations, letters from past health, education or
service providers) when evaluating requests for accommodation. We need
information on how your conditions are likely to impact you here at Tabula
Rasa University.
Consider how your disability interacts with communication, classroom and
laboratory and online learning, reading and writing, housing, technology,
dining, the physical environment, etc. What tools or strategies facilitate your
access? What barriers can you anticipate? Use your answers to these
questions to identify potential accommodations and services (such as
extended time on tests, books in a digital format, interpreters) and the
documentation that supports them.
Tabula Rasa University (cont.)
In addition to your description, information from schools and previous service
providers can be used to clarify how your disability interacts with learning and living
on campus. School systems, doctors, and other professionals you have worked with
may frame this information in terms of impacts on physical (mobility, dexterity,
endurance, etc.), perceptual, cognitive (attention, distractibility, communication,
etc.), and behavioral activities in letters (clinical narrative), through the provision of
specific results from the diagnostic procedures/assessment or in records of past
accommodations and services.
Consider any accommodations, auxiliary aids, assistive technology, services,
medications that currently in use and their general effectiveness as tools for access.
Descriptions of these, along with any additional accommodations or tools that you
can identify (with a description of how you feel they will be helpful) can identify
accommodations you will need at Tabula Rasa.
Consider expected changes in the impact of the condition(s) over time. If the
condition is variable or has known triggers, do these suggest accommodations?
These general guidelines were developed to assist you and the professionals in your
support network to prepare the information so we can evaluate your request and
make recommendations. If you have questions, please call XXX XXX XXXX V. XXX
New Ways College – Disability Documentation
Disability Resources (DR) asks students who request disability
accommodations to describe their disability, their past use of
accommodations or the disability's likely impact on their educational
experiences. Types of helpful documentation supportive of such requests
include medical records, psycho-educational testing, and school records. If
you don't have copies of this type of information, you are welcome to meet
with an Access Consultant to discuss other ways to demonstrate a
connection between your condition and any academic barriers you
anticipate or are facing.
Documentation can provide a valuable tool for helping New Ways College
understand how courses, systems and facilities may present barriers, and for
planning strategies, including reasonable accommodations, which facilitate
access. DR often uses external documentation to augment conversations
with students and to support requests for accommodations.
No. The law does not require any particular
documentation but supports a minimalist approach.
Given a particular accommodation request and the
context what information is sufficient to support the
Use institutional retention records policies for your
Offer or provide a summary of accommodations
provided to students as they exit the program.
Typically there would be no need to update
documentation unless the condition evolved.

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