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Accommodating Students Accommodating Students with Disabilities with Disabilities

John Patrick Evans,John Patrick Evans,

Certified Rehabilitation Counselor – Corporate ConsultantCertified Rehabilitation Counselor – Corporate ConsultantWashington State Department Social and Health ServicesWashington State Department Social and Health Services

Division of Vocational RehabilitationDivision of Vocational RehabilitationEvansJP@dshs.wa.govEvansJP@dshs.wa.gov

20042004

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Rehabilitation Act – Section 504Rehabilitation Act – Section 504Americans with Disabilities Act Americans with Disabilities Act

Prohibits discrimination against persons Prohibits discrimination against persons with disabilities in allwith disabilities in all

• ServicesServices• ProgramsPrograms• Activities Activities

• 42 USC Sec. 1210242 USC Sec. 12102• 28 CFR Sec. 35.10228 CFR Sec. 35.102

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Definition of Disability Definition of Disability

Federal Federal A disability is defined as:A disability is defined as:

(A) physical or mental impairment that substantially (A) physical or mental impairment that substantially limits one or more major life activitieslimits one or more major life activities

(b) A record of such an impairment(b) A record of such an impairment

(c) Being regarded as having such an (c) Being regarded as having such an impairmentimpairment

42 U.S.C. 12102(2)42 U.S.C. 12102(2)

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Qualified Individual with DisabilityQualified Individual with Disability

An individual who, with or without An individual who, with or without reasonable modifications to rules, reasonable modifications to rules, policies, and practices, the removal policies, and practices, the removal of architectural, communication or of architectural, communication or transportation barriers, or the provision transportation barriers, or the provision of auxiliary aids and services, meets the of auxiliary aids and services, meets the essential eligibility requirements for the essential eligibility requirements for the receipt of services or the participation receipt of services or the participation in programs or activities provided. in programs or activities provided.

42 USC sec. 12131(2)42 USC sec. 12131(2)

28 CFR sec. 35.10428 CFR sec. 35.104

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No Exclusion of People with DisabilitiesNo Exclusion of People with Disabilities

It is discrimination to refuse to It is discrimination to refuse to allow a qualified person with a allow a qualified person with a disability to participate in a disability to participate in a service, program, or activity service, program, or activity simply because the person has simply because the person has a disability. a disability.

28 CFR sec. 35.130(a), 35.130(b)(1)(i)28 CFR sec. 35.130(a), 35.130(b)(1)(i)

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Integrated Settings Integrated Settings

It is a violation of the ADA/504 if the It is a violation of the ADA/504 if the covered entity fails to provide programs covered entity fails to provide programs and services in the most integrated and services in the most integrated settings appropriate to the needs of the settings appropriate to the needs of the individual i.e. in a setting that enables individual i.e. in a setting that enables individuals with disabilities to interact individuals with disabilities to interact with non-disabled person to the fullest with non-disabled person to the fullest extent possible. extent possible.

42 USC sec. 12201(d) 42 USC sec. 12201(d)

28 CFR sec. 35.130(b)(1)(iv)28 CFR sec. 35.130(b)(1)(iv)

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Integrated Settings Integrated Settings

A recipient of federal funding may not A recipient of federal funding may not provide different or separate aids, provide different or separate aids, benefits, or services to students with benefits, or services to students with disabilities or to any class of students disabilities or to any class of students with disabilities unless such action is with disabilities unless such action is necessary to provide the qualified necessary to provide the qualified student with disability with aids, student with disability with aids, benefits, or services that are as benefits, or services that are as effective as those provided to others.effective as those provided to others.

42 USC sec. 12201(d) 42 USC sec. 12201(d)

28 CFR sec. 35.130(b)(1)(iv)28 CFR sec. 35.130(b)(1)(iv)

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Program Access in Existing FacilitiesProgram Access in Existing Facilities

In existing facilities, the covered In existing facilities, the covered entity is required to operate entity is required to operate each program so that, when each program so that, when viewed in its entirety, the viewed in its entirety, the program is readily accessible to program is readily accessible to and usable by people with and usable by people with disabilities.disabilities.

28 CFR sec. 35.149, 35.15028 CFR sec. 35.149, 35.150

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Program Access in Existing FacilitiesProgram Access in Existing Facilities

In deciding which methods to use to achieve In deciding which methods to use to achieve program access, innovation and creativity are program access, innovation and creativity are encouraged:encouraged:• Redesign of equipmentRedesign of equipment• Reassignment to accessible buildingReassignment to accessible building• Use of aids and home visitsUse of aids and home visits• Delivery of services in alternate accessible sitesDelivery of services in alternate accessible sites• Use of accessible vehiclesUse of accessible vehicles• Alteration of existing facilitiesAlteration of existing facilities• Construction of new facilitiesConstruction of new facilities

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Auxiliary Aids & ServicesAuxiliary Aids & Services

The covered entity must furnish The covered entity must furnish appropriate auxiliary aids and services appropriate auxiliary aids and services where necessary to afford an individual where necessary to afford an individual with disability an equal opportunity to with disability an equal opportunity to participate in, and enjoy the benefits of, participate in, and enjoy the benefits of, a service, program, or activity, unless it a service, program, or activity, unless it would result in a fundamental alteration would result in a fundamental alteration of the program or an undue financial or of the program or an undue financial or administrative burden. administrative burden.

28 CFR sec. 35.104, 35.160(b), 35.16428 CFR sec. 35.104, 35.160(b), 35.164

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Auxiliary Aids & ServicesAuxiliary Aids & Services

Notification should be provided to the Notification should be provided to the appropriate representative of the recipient, appropriate representative of the recipient, who, depending upon the nature and scope who, depending upon the nature and scope of the request, could be one or more of the of the request, could be one or more of the following:following:

• Section 504 or ADA CoordinatorSection 504 or ADA Coordinator• The Appropriate DeanThe Appropriate Dean• A Faculty Advisor or ProfessorA Faculty Advisor or Professor• Disability Services CoordinatorDisability Services Coordinator

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Auxiliary Aids & ServicesAuxiliary Aids & Services

Some various types of auxiliary aids and services may Some various types of auxiliary aids and services may include:include:

• taped texts taped texts • note takersnote takers• qualified interpretersqualified interpreters• readersreaders• student tutorsstudent tutors• television enlargerstelevision enlargers• talking calculatorstalking calculators• reaching device for library usereaching device for library use

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Auxiliary Aids & ServicesAuxiliary Aids & Services

Some of the various types of auxiliary aids Some of the various types of auxiliary aids and services may include:and services may include:

• electronic readerselectronic readers• Braille calculators, printers, or typewritersBraille calculators, printers, or typewriters• voice synthesizersvoice synthesizers• assistance in filling out formsassistance in filling out forms• specialized gym equipmentspecialized gym equipment• calculators or keyboards with large buttonscalculators or keyboards with large buttons• raised-line drawing kitsraised-line drawing kits

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Auxiliary Aids & ServicesAuxiliary Aids & Services

Institutions of higher education Institutions of higher education are not required to provide the are not required to provide the most sophisticated auxiliary aids most sophisticated auxiliary aids available; however, the aids available; however, the aids provided must effectively meet provided must effectively meet the needs of a student with a the needs of a student with a disability.disability.

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Effectiveness of Auxiliary AidsEffectiveness of Auxiliary Aids

No aid or service will be useful No aid or service will be useful unless it is successful in unless it is successful in equalizing the opportunity for equalizing the opportunity for a particular student with a a particular student with a disability to participate in the disability to participate in the educational program or activity. educational program or activity.

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Effectiveness of Auxiliary AidsEffectiveness of Auxiliary Aids

To be equally effective, auxiliary aids To be equally effective, auxiliary aids are not required to produce the are not required to produce the identical result or level of achievement for a identical result or level of achievement for a student with disability and non-disabled student with disability and non-disabled persons, but must afford a student with persons, but must afford a student with disability “equal opportunity” to obtain disability “equal opportunity” to obtain the same results, gain the same benefit or the same results, gain the same benefit or to reach the same level of achievement, in to reach the same level of achievement, in the most integrated setting appropriate.the most integrated setting appropriate.

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Cost of Auxiliary Aids & ServicesCost of Auxiliary Aids & Services

If an aid or service is necessary for If an aid or service is necessary for classroom or other appropriate classroom or other appropriate (nonpersonal) use, the institution (nonpersonal) use, the institution must make it available unless the must make it available unless the requested accommodation would requested accommodation would result in a fundamental alteration or result in a fundamental alteration or undue burden. undue burden.

28 CFR sec. 35.104, 35.160(b), 35.16428 CFR sec. 35.104, 35.160(b), 35.164

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Cost of Auxiliary Aids & ServicesCost of Auxiliary Aids & Services

A student with a disability may not be A student with a disability may not be required to pay part or all of the costs of required to pay part or all of the costs of that aid or service. An institution may not that aid or service. An institution may not place a limit on its expenditure for auxiliary place a limit on its expenditure for auxiliary aids or services or refuse to provide aids or services or refuse to provide auxiliary aids because it believes that other auxiliary aids because it believes that other providers of these services exist, or providers of these services exist, or condition its obligation to provide on the condition its obligation to provide on the availability of funds.availability of funds.

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Fundamental Alteration or Fundamental Alteration or Undue Burden Undue Burden

Covered entities have the obligation Covered entities have the obligation to prove that providing an auxiliary to prove that providing an auxiliary aid or service would result in aid or service would result in fundamental alteration or undue fundamental alteration or undue burden. burden.

All resources available for use in All resources available for use in the funding and operation of the the funding and operation of the service, program or activity must service, program or activity must be considered. be considered.

28 CFR sec. 35.16428 CFR sec. 35.164

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Fundamental Alteration or Fundamental Alteration or Undue Burden Undue Burden

The decision that fundamental alteration The decision that fundamental alteration or undue burden would result must be or undue burden would result must be made by the head of the covered entity made by the head of the covered entity or his/her designee, but in any case, by or his/her designee, but in any case, by a high-level official, no lower than a a high-level official, no lower than a department head, having budgetary department head, having budgetary authority and responsibility for making authority and responsibility for making spending decisions. spending decisions.

28 CFR sec. 35.16428 CFR sec. 35.164

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Fundamental Alteration or Fundamental Alteration or Undue Burden Undue Burden

A decision of fundamental A decision of fundamental alteration or undue burden alteration or undue burden must be documented in a must be documented in a written statement, including the written statement, including the reasons for reaching the reasons for reaching the conclusion that fundamental conclusion that fundamental alteration or undue burden alteration or undue burden would result. would result.

28 CFR sec. 35.16428 CFR sec. 35.164

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Personal Devices and ServicesPersonal Devices and Services

Recipients need not provide Recipients need not provide attendants, individually prescribed attendants, individually prescribed devices such wheelchairs, hearing devices such wheelchairs, hearing aids or prescription eyeglasses, aids or prescription eyeglasses, readers for personal use or study, or readers for personal use or study, or other devices or services of a other devices or services of a personal nature.personal nature.

28 CFR sec. 35.135628 CFR sec. 35.1356