In one of my most popular blog entries, ADA compliance auditing: higher education version, I mention technical standards in a comment to that entry. Many training programs as a condition of accreditation have developed technical standards that people in the program must meet in order to get into the program and stay into the program. My experience is that the standards are frequently written and/or interpreted in a way that screens out persons with disabilities in possible violation of the screen out provisions of the ADA. For those programs that have such technical standards, those standards can be rewritten, with expert help of an attorney knowledgeable in the area, so that the technical standards do not unnecessarily screen out persons with disabilities. Getting to that point means the attorney interfacing with the subject matter experts to make sure that the essential eligibility requirements of what the program is trying to accomplish are satisfied while simultaneously crafting the technical standards so that they do not unnecessarily screen out persons with disabilities. One of the approaches that the attorney may take is to make sure that the technical standards focus on the requirements meant to be accomplished and not on the various ways that the requirement could be accomplished.
All this said, what happens if you do have a technical standard that screens out persons with disabilities and it is challenged? A case that answers this question is McCulley v. The University of Kansas School of Medicine, an unpublished decision from the 10th Circuit. As is my usual practice, I have divided the blog entry into different categories: Facts; Court’s Reasoning; and Takeaways. The reader is free to concentrate on any or all of the sections.
In this case, the plaintiff suffered from type III spinal muscular atrophy, which necessitated the use of a wheelchair for mobility and limited her arm strength. In 2011, she was admitted to the medical school. One of the technical standards for the medical school was that a student must be physically able to carry out diagnostic procedures and provide general care and emergency treatment to patients including CPR, opening affected airways and obstetrical maneuvers. Shortly after being admitted to the medical school, the medical school sent the plaintiff a form asking her to describe the accommodations she might need. That led to a period of discussion between the plaintiff and the school. In July of 2012, she completed the form indicating that she would need a staff person to assist her with lifting and positioning patients, stabilizing elderly patients, and performing basic life support. After reviewing the requested accommodation, the interim dean of the medical school concluded that the plaintiff could not meet the motor technical standard and rescinded her admission. She of course sued alleging violations of the ADA and the Rehabilitation Act. When the District Court granted summary judgment to the medical school, she appealed to the 10th Circuit, which affirmed the District Court’s grant of summary judgment.
1. Having a staff member interact with patients on the plaintiff’s behalf would fundamentally alter the nature of her medical education, which trains her to engage with patients, often in emergency situations where assistance is unavailable. To my mind, the analogy would be to title I of the ADA where it is not a reasonable accommodation to hire someone to do the essential functions of the job of another.
2. The motor technical standards are related to the medical school’s accreditation.
3. Although the plaintiff does not intend to pursue a physically demanding specialty, she must nevertheless meet the motor technical standards because the medical school uses a broad, undifferentiated medical curriculum that prepares students to serve as physicians in a wide range of practice areas.
4. The critical procedures that the plaintiff seeks to have staff members perform on her behalf are required as part of the United States medical licensure examination.
1. The decision is unpublished and so it’s precedential value may be debatable. Check your local rules on that.
2. In the final section of the opinion, the 10th Circuit states that the disposition should not be read as holding the medical school cannot reasonably admit the plaintiff or other students with similar disabilities. If this unpublished decision is adopted across the Circuits, it may lead to precisely that. The critical question is whether the purpose of a medical curriculum is to prepare students to serve as physicians in a wide range of practice areas. Or, is it more accurate to say that the purpose of a medical curriculum is to enable the student to truly understand what it means to serve as physicians in a wide range of practice areas. Certainly, if you are on the plaintiff’s side, that is the approach you would have to take. On the other hand, if you on the defense side, you certainly want to argue that a medical curriculum’s purpose is to prepare students to serve as physicians in a wide range of practice areas.
3. Look for the technical standards even where they screen out persons with disabilities and are written to do so when they don’t have to be, to be defended on the grounds that the technical standards are related to accreditation. The response to that argument is that the technical standards may be related to accreditation, but that does not mean the technical standards have to be written in such a way so as to unnecessarily screen out persons with disabilities. As a preventive measure, a knowledgeable attorney should work with the program to determine precisely what are the essential eligibility requirements of the program and what are the specific purposes that the program is trying to accomplish with that particular technical standard. Staying away from how the task is being accomplished and focusing on what should be accomplished, will go a long way towards making that technical standard one likely to be successfully defended against a challenge. After doing all that, it is possible that the standard will still discriminate against some people with disabilities, but at least then the school can be fairly confident that the technical standard as written is essential to the fundamental nature of the program. Certainly, from the school’s perspective, if a particular technical standard is required so as to be able to accomplish the United States medical licensure examination, that would suggest that the standard may be fundamental.
4. The risk of this decision is that it may lead to confusion that a professional school should be thinking about whether that particular student can actually perform the essential functions of a doctor, lawyer, nurse, etc. upon graduation while ignoring the fact that it is their medical school or professional training school that has independent obligation to persons with disabilities under either title II or title III. Whether the person can perform the essential functions of the job that he or she is training for, is a question for that person’s employer and falls under title I of the ADA. Also, it is entirely possible that the student had no intention of practicing that profession at all, but rather wants to use that knowledge in a related way. Certainly, this decision supports some blurring of the lines, but I would suggest being careful about completely blurring the lines between the educational curriculum and the job that the person training for.