In a previous blog entry, I talked about a case that illustrated what not to do if you are a place of higher education seeking to dismiss a student with a disability from your program. This particular blog entry will briefly talk about another case involving a medical school and then explore the concept of ADA compliance auditing and what such an audit might encompass when it comes to higher education.

The case is Argenyi v. Creighton University, 703 F.3d 441 (8th Cir. 2013). In this case, the plaintiff had a serious hearing impairment and was accepted into medical school at Creighton University. Before enrolling, he requested specific accommodation from Creighton for his hearing impairment, which were denied. Once in medical school he repeatedly renewed them during his first two years saying that he was unable to follow lectures, participate in lectures and to communicate with patients. What is interesting is that the person decided to enroll in this medical school even though going in he knew that the medical school had rejected his requested accommodations.

More specifically, from the age of one until the age of 18, the plaintiff wore hearing aids and relied on cued speech to help function in the hearing world. He never learned sign language. In the eighth grade, the plaintiff began using communication access real-time transcription, which transcribes spoken words into text on a computer screen, in real time. Before starting his undergraduate studies, the plaintiff received a cochlear implant in his right ear. While an undergraduate, Seattle University provided him with communication access real-time transcription for his lectures and a cued speech interpreter for the lab courses. He graduated from college with a 3.87 GPA. Before starting medical school, the plaintiff received a bilateral cochlear implant. Also, prior to starting medical school, plaintiff had his otolaryngologist write to the medical school saying that the plaintiff would benefit from close captioning as well as communication access real-time transcription for his lectures, a cued speech interpreter for labs, and an FM system for small learning groups of the students or fewer. There was a series of back-and-forth between the plaintiff’s medical team and the University with respect to the accommodations necessary for the plaintiff with the plaintiff’s team saying that the plaintiff needed access to visual cues for everyday communication in education including: Close captioning on videos and film, real-time captioning for lectures and discussions, and speech reading cued for one-on-one interactions. The medical school simply wasn’t willing to go that far. Instead, they offered the plaintiff FM listening system only, which he tried and which did not work for him effectively. After that didn’t work, and in response to the plaintiff’s medical team, the medical school only offered the plaintiff enhanced note taking services. The plaintiff had his medical team actually test him with respect to the FM system and found that the FM system was actually making things worse for him and not better. Since Creighton provided no further support services during his first year in medical school, the plaintiff borrowed $53,000 to pay for the communication access real-time transcription service himself. Since the school denied the computer access real-time transcription in his second year as well, the plaintiff had to take out a loan to pay for that as well, totaling $61,000. In his second year, the school refused to allow the plaintiff to use an interpreter even if he paid for one himself. Somehow, the plaintiff passed his clinical and other courses in his second year. However, it all by proved too much, and the plaintiff took a leave of absence pending resolution of the lawsuit. At the District Court level, the University won and the plaintiff appealed. The University also appealed with respect to seeking its costs. Unfortunately, for the University, the Eighth Circuit had other ideas.

The court in reversing and remanding the case to the District Court reasoned as follows. First, the Eighth Circuit said that the District Court erred when they said that the plaintiff’s affidavit was unsupported by other evidence. The Eighth Circuit said that the plaintiff’s affidavit was backed up by numerous other pieces of evidence and therefore, could not be deemed to be unsupported.

Second, the court noted that both the ADA and the Rehabilitation Act require the provision of necessary auxiliary aids and services to individuals with disabilities. Turning to the case law, the Eighth Circuit said that term required that a person be given meaningful access to a University’s program and activities.

Third, the meaningful access standard means that aids and services are not required to produce the identical result or level of achievement for persons with disabilities and those without disabilities, but aids and services must afford the person with the disability equal opportunity to gain the same benefit. The court believed that such a standard was consistent with the purpose of title III of the ADA as well as with § 504 of the Rehabilitation Act.

Fourth, the Eighth Circuit said that the District Court applied the wrong standard when it said that the standard was whether the plaintiff was effectively excluded from the place of public accommodation and not whether the plaintiff had been given meaningful access. The Eighth Circuit said that the effective exclusion standard was inconsistent with the purpose of the ADA and the Rehabilitation Act. Instead, the ADA and the Rehabilitation Act require the medical school to consider how its educational programs are used by those without disabilities and then take reasonable steps to provide people with disabilities with a like experience.

Finally, in a footnote, the Eighth Circuit said that on remand, Creighton could submit evidence of the costs of the plaintiff’s requested auxiliary aids and services for determination of whether providing them would impose an undue burden on the University. This particular footnote is very interesting because it is one of the few situations that I have seen where the possibility of a financial undue burden is in play. Just because the Eighth Circuit has put it in play does not mean that the University on remand would be successful. Particularly so, if the entire operations of the medical school are looked at with respect to determining whether an undue burden exists.

In short, for all the reasons above the Eighth Circuit said that a reasonable fact finder could determine that the plaintiff was denied an opportunity to benefit from medical school equal to that of his classmates without disabilities and reversed and remanded the District Court’s summary judgment for the defendant.

Before moving on, on July 19, 2013, on remand, the United States District Court for Nebraska denied Creighton University’s motion for partial summary judgment with respect to plaintiff’s claim for compensatory damages and it also denied Creighton University’s motion to strike plaintiff’s jury demand. (2013 WL 3790962, D. Neb. July 19, 2013). The District Court held that a question of fact existed as to whether Creighton failed to provide auxiliary aids necessary to ensure that the plaintiff have meaningful access to the education and training that the medical school offered. The District Court also held that a question of fact existed as to whether the University acted with deliberate indifference with respect to the plaintiff’s federally protected rights.

Being a deaf person myself, albeit one that functions entirely in the hearing world with the use of lip reading and technologically advanced hearing aids, it is obvious from reading the case that the medical school simply did not understand what is involved with being deaf and having to function in the hearing world. If someone had been involved in the process that had an excellent understanding of how a deaf person needs to function in the hearing world and what would have to happen to make that so, the whole process may have been different. All this brings up the point that places of higher education really need to do ADA compliance auditing to make sure that their programs and activities are in compliance with the ADA.

So what might an ADA compliance audit look like? What would it cover? Here are some things to consider:

1. Is the faculty trained on the requirements of the ADA/Rehabilitation Act?
2. If the faculty distributes materials in their classroom, is a system in place to make those materials accessible to the person with a disability.
3. Has the institution’s policies and procedures been reviewed to ensure that persons with disabilities have meaningful access to the institution’s programs and activities?
4. Does the institution’s office of disability services take an active role in working with persons that provide services/instruction to students so as to promptly and effectively resolve disability related concerns of the students?
5. Is the office of disability services the main point of contact on issues related to ADA/§ 504 compliance for persons involved in class instruction at the institution?
6. Is faculty trained on when to get the office of disability services involved?
7. Has each program within the institution determined its essential eligibility requirements. Has the institution ensured that those requirements do not screen out persons with disabilities?
8. Does the office of disability services follow-up with instructors of students with known accommodation letters to ensure that the faculty has made appropriate arrangements with respect to exams and projects? Of course, this assumes that the student with a disability has taken the modification/accommodation letter to the Professor/instructor in the first place.
9. Does the institution have a system for timely responding to accommodation/modification requests that are not anticipated?
10. Does the institution have an ADA/§ 504 grievance procedure and is that grievance procedure triggered any time the office of disability services does not fully resolve the student’s complaint.
11. Is everyone within the institution aware of the ADA/§ 504 grievance procedure?
12. Does the institution regularly train its faculty, administration, and staff members on the requirements of the ADA/§ 504? What are the qualifications of that trainer? Does the institution have a knowledgeable source (in-house or outside), to turn to with respect to ADA/§ 504 matters.
13. Does the institution have a § 504/ADA coordinator?
14. Has the institution assessed its Internet site and any offering that it has in the electronic medium to ensure accessibility for persons with disabilities? (For example, are they accessible to people who use screen readers and voice dictation technology?)
15. Does the University have a system in place to ensure that any time it buys a product or technology that the product or technology is accessible to persons with disabilities?
16. Has the University when it comes to buying a product made its best effort to ensure that the product is accessible to persons with disabilities and has it also entered into an indemnification agreement with the vendor of that product so as to allow indemnification if that product is not accessible? Interestingly enough, the Department of Justice in a settlement with Louisiana Tech insisted in its settlement agreement that Louisiana Tech ensure that such indemnification clauses are present whenever they buy a product or take on new technology. Whether such an indemnification clause would be upheld is, as we have seen elsewhere, debatable.
18. Does the institution have an office that provides resources to the institution’s stakeholders with respect to ensuring that webpages, instructional materials, and other technology are accessible to persons with disabilities? Has that personnel received the proper training to accomplish that?
19. Do any reasonable accommodations/modifications offered ensure that a student has meaningful access to the institution’s programs and activities?
20. Has the institution considered how its educational program is used by those without disabilities, and has it taken reasonable steps to provide people with disabilities with a like experience?
21. If a reasonable accommodation/modification is denied, has the institution determined that such a request either constitutes an undue burden or a fundamental alteration in the nature of the program/activity/business?
22. If a public entity, were a self-evaluation plan and transition plan ever performed? If so, have those planned been reviewed? If not, has the institution begun that process? (See 1-21 for things that the institution would want to review for example).

Believe it or not, this list is not meant to be exhaustive but only illustrative.

16 Responses to ADA compliance auditing: higher education version

As I mentioned above, this list is illustrative and not exhaustive. There is a reason for that. There is always something else that someone may point out or something that you may think of later. For example, in a LinkedIn group that I am a part of, someone pointed out the issue of internships and externships. Absolutely, the internship and externships process need to be reviewed to ensure that a student with a disability is being placed in an internship or externship that is accessible.

I just visited the site. Very impressive as to how accessible it is to someone who uses voice dictation technology. The only quibble I have with the University of Texas San Antonio site is that there is no mention of people who use voice dictation technology, just screen readers, and no indication that people needing web accessibility may not be visually impaired at all. That said, nothing said here is meant to diminish the superb accessibility of the site.

I find it difficult to believe that a Medical School did not “understand” what was needed, but instead thought that if they made it difficult enough for this student, that he would just drop out of medical school. Of any higher institute of learning, a Medical School should have a very good understanding of this situation and the means to provide the necessary accommodation to this student.

http://nyti.ms/163iBuf

NYTimes: Deaf Student, Denied Interpreter by Medical School, Draws Focus of Advocates

The case of a deaf medical student who was denied the use of an interpreter during his clinical training in Omaha, Neb., is to go to trial on Tuesday.

Today’s New York Times has an article on this case, link and abstract above. As mentioned in this blog entry, the case was reversed and remanded by the Eighth Circuit and is scheduled to go on trial in the District Court today.

http://www.kansascity.com/2013/08/18/4419019/deaf-woman-wins-lawsuit-against.html

above is a link to an article from the Kansas City Star talking about a case where the lower court on remand from the Missouri Court of Appeals awarded $50,000 in damages to a person with profound severe hearing loss that was terminated from a nursing program on account of her hearing loss. The Missouri Court of Appeals decision is Wells v. Lester E. Cox Medical Center, 379 S.W. 3d 919 (Mo. App. 2012).

Another thing that I would add to higher education ADA compliance auditing would be evaluating the substitution of courses. For example, does the place of higher education have a system in place so that it could evaluate whether a person who because of their disability would have difficulty with spoken languages would instead be able to take ASL (American sign language; the language of the culturally deaf and which is based on French), in order to satisfy a foreign language requirement.

An update: On December 19, 2013 the court decided the plaintiff’s motion for declaratory, equitable, and injunctive relief. The court granted the motion in part and denied the motion in part. In short, the court made both sides unhappy. The court made the defense, Creighton University, unhappy because it issued an injunction compelling the school to provide Argenyi with the requested accommodation for his third and fourth year of medical school, a considerable expense. On the other hand, it made the plaintiff very unhappy by denying damages in the form of equitable relief or otherwise, saying that title III of the ADA does not allow for damages. That is absolutely true. However, Argenyi sued under both title III of the ADA and § 504 of the Rehabilitation Act, and § 504 does allow for damages. The court seems to strongly suggest that since title III of the ADA does not allow for damages, § 504 does not allow for it either since it is a title III case. That is an implication that I’ve not seen before. Finally, it is also true that the jury found that the plaintiff did not demonstrate that Creighton intentionally discriminated against him nor did he demonstrate that Creighton was deliberately indifferent to him thereby precluding damages under § 504, but that is not the same thing as saying that it was error to instruct the jury on damages in the first place, which is what the court did say. Also, the court uses title III of the ADA to say that since damages are not allowed, equitable restitution would not be allowed either, but again damages are allowed under § 504. In short, it’s not going to be surprising if both parties appeal this. Stay tuned for further developments.

http://www.iowacourts.gov/About_the_Courts/Supreme_Court/Supreme_Court_Opinions/Recent_Opinions/20140627/12-0924.pdf

One of the things that I have seen is technical standards that screen out persons with disabilities. For example, I have seen technical standards in the nursing field that say a person actually has to use the physical senses in order to do certain expected things. I also recall an argument that I had with an educator regarding whether a deaf person fluent in ASL could satisfy technical standards requiring a person to speak in order to accomplish certain tasks. The above case is an excellent case for showing what happens when a school relies on the technical standards and forgets about whether any reasonable accommodation would fundamentally alter the nature of the program. It is also illustrative of why essential eligibility requirements of the program need to be done thoroughly and have sufficient expertise brought to the process. Another point about this case is the court says that they are not going to give academic deference to technical standards that discriminate against persons with disabilities, especially when the school didn’t make the attempt to reasonably accommodate the student. The one quibble I have with this case is that the case talks about precedent (what the school did with prior individuals with the same disability), with respect to determining essential eligibility requirements. I personally do not like that approach because every disability is different. Therefore, accommodating one person is not really precedent for accommodating anybody else. Also, it takes away the emphasis from the fact that essential eligibility requirements need to be in place for every program and those requirements need to be crafted with expertise in a great deal of care. Lastly, I have actually met and heard one of the attorneys in this case, Scott LaBarre. He is a blind attorney and a former chair of the American Bar Association Commission on Disability Rights. Congratulations to him. The National Federation for the Blind was also an amicus.

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