[Athen] FW: Final ADAAA Regulations released

Joshua Hori jhori at ucdavis.edu
Thu Aug 25 10:50:35 PDT 2016

Hello Everyone,

Wanted to share this bit of information from another listserv which I thought to be relevant to all. A lot of food for thought.

Hi all,
As many of you probably know, the US Department of Justice (DOJ) has been working for several years on a set of Regulations to implement Titles II and III of the ADA Amendments Act, which was passed in 2008.

These do not change existing law nor add to it, but are meant to help clarify the intent of the ADAAA and provide concrete examples. These regulations were proposed by the DOJ and opened for public comment in 2014. This Final Rule was released by the DOJ earlier this month. It includes the DOJ's response to some of the public comments they received in 2014.

These regulations go into effect on October 11 of this year. Although all of it is useful to much of our work (and it is pretty easy to read-not too much "legalese"-I encourage you all to skim it!), in particular the portions directly pertaining to higher education and national testing entities caught my eye, and I thought I'd share those with this group. Highlights include:

* Specific guidance and real world examples about the definition of "disability" including how "substantially limits" is defined and what constitutes a "major life activity";

* Calculation that only half of students with ADHD or LD who are now entitled to extended time on national standardized exams are actually getting it;

* Calculation of how much more it is likely to cost universities and national testing entities to process the additional accommodation requests and provide the extended time on exams that more students are now entitled to;

* Whether testing entities can rely primarily on evidence of past student success (such as high grades or scores) when determining whether a student has a disability (spoiler alert: they can't);

* Specific rejection of some earlier case law relating to med schools and the NBME. (Again, this isn't a new position or law, but it is now articulated very clearly in writing in these ADAAA regulations.)

I'll cut and paste some of the relevant portions below (there are lots more not included here)-enjoy!

"Organizations representing testing and educational entities asked the Department to add regulatory language indicating that testing-related outcomes, such as grades and test scores, are relevant to disability determinations under the ADA. The Department has considered this proposal and declines to adopt it because it is inconsistent with congressional intent."

"The Department [the DOJ] does not believe that the testing results or grades of an individual seeking reasonable modifications or testing accommodations always would be relevant to determinations of disability. While testing and educational entities may, of course, put forward any evidence that they deem pertinent to their response to an assertion of substantial limitation, testing results and grades may be of only limited relevance."

"With respect to specific benefits, in the first year, our analysis estimates that approximately 148,261 to 266,870 postsecondary students will take advantage of accommodations for extra exam time that they otherwise would not have received but for this rule. Over 10 years, approximately 1.6 million to 2.8 million students will benefit. An additional 802,196 to 1.4 million national exam test takers would benefit over that same 10 years (assuming that people take an exam one time only). Some number of these individuals could be expected to earn a degree or license that they otherwise would not have as a result of the testing accommodations they are now eligible to receive as a direct result of the ADA Amendments Act."

"Emphasis on Limitations Instead of Outcomes In passing the ADA Amendments Act, Congress clarified that courts had misinterpreted the ADA definition of "disability" by, among other things, inappropriately emphasizing the capabilities of people with disabilities to achieve certain outcomes. See 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers). For example, someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in one or more of the major life activities of reading, writing, speaking, or learning because of the additional time or effort he or she must spend to read, speak, write, or learn compared to most people in the general population. As the House Education and Labor Committee Report emphasized:

[S]ome courts have found that students who have reached a high level of academic achievement are not to be considered individuals with disabilities under the ADA, as such individuals may have difficulty demonstrating substantial limitation in the major life activities of learning or reading relative to "most people." When considering the condition, manner or duration in which an individual with a specific learning disability performs a major life activity, it is critical to reject the assumption that an individual who performs well academically or otherwise cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking. As such, the Committee rejects the findings in Price v. National Board of Medical Examiners, Gonzales v. National Board of Medical Examiners, and Wong v. Regents of University of California.

The Committee believes that the comparison of individuals with specific learning disabilities to "most people" is not problematic unto itself, but requires a careful analysis of the method and manner in which an individual's impairment limits a major life activity. For the majority of the population, the basic mechanics of reading and writing do not pose extraordinary lifelong challenges; rather, recognizing and forming letters and words are effortless, unconscious, automatic processes. Because specific learning disabilities are neurologically-based impairments, the process of reading for an individual with a reading disability (e.g., dyslexia) is word-by-word, and otherwise cumbersome, painful, deliberate and slow-throughout life. The Committee expects that individuals with specific learning disabilities that substantially limit a major life activity will be better protected under the amended Act.
H.R. Rep. No. 110-730 pt. 1, at 10-11 (2008).

Sections 35.108(d)(3)(iii) and 36.105(d)(3)(iii) of the proposed rule reflected congressional intent and made clear that the outcome an individual with a disability is able to achieve is not determinative of whether an individual is substantially limited in a major life activity. Instead, an individual can demonstrate the extent to which an impairment affects the condition, manner, or duration in which the individual performs a major life activity, such that it constitutes a substantial limitation. The ultimate outcome of an individual's efforts should not undermine a claim of disability, even if the individual ultimately is able to achieve the same or similar result as someone without the impairment."

Elisa Laird-Metke, JD
Director, Disability Resource Center
Samuel Merritt University
3100 Telegraph Avenue, Suite 1000
Oakland, CA 94609

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