<<< CONTENTS>>>

1. Don't Complain to Me... I Just Work Here!
2. And While We Are On the Subject...
3. Technical Assistance Q&A
4. Be Careful What You Wish For -- You May Get It!!!
5. <<<What is the DAIS Newsletter?>>>

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<<<DON'T COMPLAIN TO ME... I JUST WORK HERE!>>>

In the past, I have often been asked whether it is appropriate for the disability service provider and the 504 Compliance Officer to be one-in-the-same individual. I used to think that it really didn't matter one way or another. Indeed, since the direct service provider was the individual most likely to have knowledge and understanding of disability and its impact on education, such assignment might be appropriate. I have come to believe differently. Several years ago I visited a public institution whose originally designated 504 Compliance Officer had moved on (to that great Affirmative Action Office in the sky?!). The title of 504 Compliance Office had been added to the responsibilities of the disability service provider by default. The institution said, "You are the one who understands the law and what we need to be doing... YOU do it!"

The service provider showed me a memo she had written to the Vice President of Administration. In the memo she had noted that recent construction and renovation to a block of buildings on one side of campus had created some new concerns regarding access routes to that area for students with disabilities. The memo indicated that there were several places where curb cuts were needed and at least two places in which audible traffic signals needed to be installed for safety purposes. The people from the Physical Plant Office estimated that it would cost roughly $35,000 for the work that needed to be done. The Vice President had returned her memo several days after it was submitted. Handwritten across the bottom it said, "Sounds like a great idea. Where are you going to get the money?"

The service provider had been given the responsibility for 504 compliance, but had not been given the authority to make that compliance a reality. In her position as a counselor within the institution's Counseling and Advising Center, she had no established authority over the individuals whose cooperation or action might be necessary to insure institutional compliance, and no direct reporting line to someone higher up within the institutional administration who might have the authority to order actions to be taken by various segments of the institution. It would have been a much healthier (safer) situation if the service provider, as part of her responsibility to students with disabilities, could have written the same memo, expressing concerns about student safety and institutional compliance, and sent that memo on to someone who had the authority to make it happen.

It wasn't only in leveraging resources that the dual role became untenable. While institutional policy designated the service provider as the individual charged with determining appropriate accommodation for students with disabilities, there was no recourse for faculty who disagreed with or questioned those decisions. If the service provider and the compliance officer are two different individuals, then if a faculty member disagrees with a prescribed accommodation, the matter can be laid before a third party for consideration of both sides of the argument. In combining the compliance function with the direct service element, the faculty member is left with the option of refusing the pronouncement of the disability services provider (a counselor from Student Services) or refusing the pronouncement of the 504 Compliance Officer (that same counselor from Student Services!). The added title did not provide added "clout".

The question has been complicated further with the passage of the ADA and the obligation to enact a viable mechanism for questioning institutional response. Under Title II of the ADA, public institutions are required to develop a clearly articulated and publicized grievance policy. Private institutions (those covered by Title III) do not have the same requirement under ADA, but there is some obligation for clearly defined policies/procedures under Section 504 and most institutions have found the establishment of such policies to be an appropriate means of demonstrating the institutional commitment to cooperation and compliance under the law.

Some institutions have incorporated the grievance policy for disability-related discrimination into existing policies/procedures for investigating other areas of possible discrimination (racial/ethnic discrimination, sexual harassment, and so on). Charges of discrimination on the basis of race or sex are often brought about because of the action of an individual or of the institution against the party bringing the complaint. On the other hand, disability-related complaints often stem from a perception that an individual or institution did not do ENOUGH -- that is, reasonable and appropriate accommodations were not made, thus resulting in discrimination. For this reason, other institutions have chosen to develop a separate and distinct grievance policy regarding disability issues which incorporates the possibility of input from individuals who understand disability and its impact and can speak to the appropriateness of accommodation requests. In some cases, the ADA Compliance Officer becomes the first stop in the grievance process. In other instances, the institution has established an ADA Coordinator to take major responsibility for the development of policy/procedure but the ADA Compliance Officer is someone removed from active involvement in service/support, often in legal affairs, Affirmative Action, or Human Resources. The law simply requires the institution to have a grievance policy in place -- it does not spell out the form such policy/procedure should follow. There is, however, one caution to be offered.

It is not appropriate for the grievance procedure to begin with a visit to the direct service provider. It IS appropriate for such an individual to be involved in ongoing attempts to assist people with disabilities in receiving the accommodations they need and advocating on behalf of the individual's right to accommodation with faculty, staff, and administrators. This happens long before a grievance is filed and if such activities are successful, there will be no need for the student to pursue a formal grievance. It must be recognized, however, that not all complaints will be about the actions or inactions of others. Sometimes the student may be dissatisfied with the response of the disability service provider. It is because of this possibility that the direct service provider -- the person who determines needed accommodations on behalf of the institution -- cannot also serve in a key role in the grievance process. You cannot ask the person with a disability to begin the grievance process by grieving to the offending individual!

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<<<AND WHILE WE ARE ON THE SUBJECT...>>>

A student with a disability requests an accommodation which the disability service provider does not believed is justified by the documentation that has been provided The request is denied. The student takes his request to the ADA Coordinator and asks that the disability service provider be directed to provide the accommodation. The Coordinator examines the request and the available documentation, and after speaking with the direct service provider determines that the request is not justified and denies the accommodation a second time. The student follows the institutionally prescribed grievance procedure and makes it known to the grievance officer at his hearing that if the accommodation is not granted, he is prepared to file a formal complaint against the institution with the Office for Civil Rights. What happens next?

It is important to understand that when OCR is called in to investigate a possible violation of Section 504/ADA, they are not limited to examining only the incident or circumstances that triggered the complaint. Instead, they may choose to look at the broad institutional response to the SPIRIT of the law as evidenced by the factual information surrounding the complaint and by an examination of institutional policies and procedures regarding persons with disabilities. Acknowledging this reality leads to some interesting conclusions regarding how to respond to concerns about legal action against the institution.

It sometimes seems that in our litigious society there are only two kinds of postsecondary institutions -- those that have had a 504/ADA complaint filed against them, and those that will! As cynical as that may sound, it can also be very "freeing" to the decision-makers whose job it is to determine the institutional response to the threat of legal action. If the institution considers refusing a request for accommodation on the basis of principle (as in, "it's the principle of the thing!"), it is important to remember that standing on principle is not recognized under the law as a legitimate reason for refusing accommodation. On the other hand, if the ONLY reason you consider complying with a request (demand?) that seems unreasonable is because you are afraid that if you don't comply the institution will get sued, that may be a foolish reason to capitulate. The institution will get sued anyway! Sooner or later someone will make a demand to which the institution cannot or will not comply. If the individual involved files a complaint and triggers a compliance investigation, all aspects of your disability-related response conceivably are open to question and examination. The only way to be "safe" when OCR comes knocking at your door is to make all your decisions and take all your actions using good sense and in good faith, with the almost certain assumption that at some point in time, everything you do will be open to scrutiny.

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<<< TECHNICAL ASSISTANCE Q&A>>>
QUESTION: Does culpability mitigate responsibility?

A faculty member asks, "Does the student's culpability in having a disability mitigate in any way the institution's obligation to provide accommodation? For example, if the student was blinded by a gunshot from the police when he was caught trying to rob a jewelry store, does the institution still have an obligation to provide all the same accommodations that it would need to provide to someone who was congenitally blind?"

The answer is YES, the institution does have the same obligations, but it is an interesting question that, in some ways, has only recently been resolved. Accommodations are granted to assure equal access to programs and activities for qualified persons with disabilities. The definition of disability deals with the status of having a physical or mental impairment, NOT with the reason that the impairment exists. The individual described in this scenario is entitled to equal access to all the benefits and privileges that are available to others in his milieu (in this case, that could mean that he is entitled to get the prison newsletter in Braille or on tape!).

While philosophically this has always been the understanding under the law, until the last several years, there was some variance in practice. For many years, under Section 504, obesity was not considered a disability, even if it were evident that the individual's size created substantial limitations to one or more major life activities (for example, walking or sitting). If the individual's weight created health-related problems (heart problems, breathing problems, and so on), those conditions might qualify the individual for protection under the law, but size alone was not viewed as a disability because "if these individuals hadn't eaten so much, they wouldn't be in this position. They chose to assume this condition."

A number of court cases and OCR findings in the last several years have clarified the official view on this matter. Essentially the courts have indicated that considering causation for individuals with certain kinds of conditions when it is not a consideration in other areas is not appropriate. We do not differentiate between the accommodations appropriate for someone who is a wheelchair user because s/he was struck by a drunk driver from those that are appropriate for someone who is a wheelchair user because s/he WAS a drunk driver. We do not differentiate between the accommodations appropriate for someone with bone cancer who is undergoing treatment from those appropriate for someone who has lung cancer as a result of a 2-pack-a-day habit and is now undergoing treatment. The (presumed) cause of the disability is not pertinent to the individual's status as a member of the protected class, or to the responsibility of the institution to provide full access.

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<<<BE CAREFUL WHAT YOU WISH FOR -- YOU MAY GET IT!!!>>>

An awful lot of people have been spending an awful lot of time lately discussing documentation issues. What constitutes documentation for various disabilities. What professionals have the appropriate credentials to be providing documentation of disability in various categories. For what purpose is documentation to be collected. What elements -- of timing, of information, of testing protocols -- must be included for documentation to be considered complete. Buried within these discussions is an element which is often viewed as benign and may, in fact, be very dangerous. Recommendations.

In developing the profile of information needed for documentation purposes, many service providers have included, as a requirement, the provision of recommendations for accommodation. Usually, this requirement came about out of an honest concern for appropriately meeting students' disability-related need for accommodation. We can't all be LD specialists, or ADD specialists, or BVI specialists, and almost none of us feel equally confident in all of these areas. If you insist that as part of the documentation of disability, the professional providing the diagnosis (who IS an expert in that area) provide you with recommendations for accommodation, then those recommendations can be used as an extension of the experience/expertise available internally, right? Yes, BUT...

The first problem lies in the fact that the service provider's desire for suggestions and support for outside professionals typically revolves around disability categories that are sensitive in terms of how they impact on academics, yet a statement of need for recommendation is rarely limited to specific areas of disability. How many doctors in physical medicine have you come in contact with who have any concept of the kinds of accommodations that can or should be made in higher education to assure full access for a student in a wheelchair (priority registration, accessible transportation, moving classes, disability parking, and so on)? How many audiologists have you encountered who have ever thought about how an individual's deafness impacts on their ability to learn a foreign language? It is not logical to expect an ophthalmologist to be in a position to make informed recommendations about the relative merits of Braille versus audio tape as alternate media for the blind student. Knowledge of the academic impact of the disability is, in fact, NOT a part of the expertise that these professionals bring to their interactions with the student.

More importantly, if the rules state that the documentation is not considered complete unless it includes recommendations, there may be a tacit understanding that you intend to follow the recommendations that are provided in this fashion. If you don't intend to follow them, why did you insist on them? What if those recommendations are for accommodations that you cannot or will not provide because they are not reasonable or appropriate in an academic setting ("this student should not be asked to take any tests" or "this student should be allowed to take all tests as open-book tests" or "this student should be given a waiver of the foreign language requirement").

An outside source can provide documentation that someone has a disability and thus is a member of the protected class. In my opinion, the institution has no right to question the status of someone as a person with a disability if the documentation has been provided by an appropriately credentialed individual. However, THE INSTITUTION SHOULD ***NEVER*** GIVE UP THE RIGHT TO BE THE SOLE DETERMINER OF WHAT ACCOMMODATIONS SHALL BE PROVIDED WITHIN THE INSTITUTION. Recommendations from an outside professional can be useful and are often welcome, but they are not binding. Remember, the diagnostician who is asked to provide recommendations will typically list recommendations for things that can/should be done to enhance student success. The purpose of ***accommodation*** is not to improve students' chances of being successful but rather to assure equal access to the opportunity to show that whether or not they can be successful. If you want to ask for recommendations for accommodation from an outside professional, do just that -- ask for them. Don't demand them.

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<<<WHAT IS THE DAIS NEWSLETTER?>>>

The monthly DAIS Newsletter will provide technical assistance and information to postsecondary personnel involved in issues of disability in higher education. While the presentation format is somewhat limited by virtue of the delivery mechanism (straight text via email), it is anticipated that the content will be broad in scope and coverage.

***Content you may see in upcoming issues:***
* Court cases and Letters of Finding will be reviewed, not for the legal decisions, but for their implications for practice to disability service providers and administrators;
* Technical assistance questions that are posed to author/editor Jane Jarrow in her role as President of DAIS will be presented, along with her responses;
* Summary and review will be offered of "hot issues" under discussion on relevant listservs such as DSSHE-L, ADA-LAW, ADA NET, and EDUDEAF;
* Just as other publications may contain a section on "Statistics You Can Use", the DAIS Newsletter will include statistics, quotes, descriptions, sample policies, and such gathered from various sources and made available to readers with suggestions for how to make the information work to the benefit of your program and your constituency;
* Editorial commentary

???Who Should Receive the DAIS Newsletter????
The focus of the newsletter will be disability access issues in higher education, primarily as impacted by Section 504 and Titles II and III of the ADA. While much of the information will be most useful to disability service providers and those with direct responsibility for 504/ADA compliance, it is hoped that the newsletter can also be used as a vehicle to inform, educate, and assist other individuals within the institutional setting who need or want to understand more about the issues presented. This might include members of Advisory Committees, administrators who oversee areas impacted by 504/ADA, and top level administrators to whom the arrival of a monthly newsletter may serve as an ongoing reminder that students with disabilities are a growing segment of the postsecondary population.

The subscription arrangement has been developed to encourage this kind of broad dissemination throughout the institutional community. The subscription price of $50 includes 12 issues of the monthly newsletter and with the subscription order you may submit up to five (5) email addresses of individuals within the institution to whom the newsletter is to be sent. Additional copies can be sent for $5 per additional address. If you have a large staff, each can receive his/her own copy of the newsletter. If you are a staff of one, you can help to spread the responsibility by indicating names of others on campus who could/should be more involved!

???How Do I Subscribe???
<<<ALL SUBSCRIPTIONS MUST BE PREPAID>>>
Checks should accompany the identifying information requested below. Recognizing, however, that processing orders through institutional channels often takes an inordinate amount of time and red-tape, the identifying information requested below, ***along with a copy of the institutional purchase order submitted to your institution,*** will be accepted by mail or FAX and your subscription can be activated immediately. The subscription form below can be copied out and submitted with your subscription order. However, it is the **information requested** that is important, regardless of the format in which it is submitted.

PLEASE NOTE: Arrangements can be made for an audio tape version for individuals with print disabilities who do not have available the technology needed to access the DAIS Newsletter through email. Please contact DAIS at the address shown below to request this accommodation.

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