The Catholic University of America

ADA Guidelines

Self-Audit Checklist

III. Determining a Disability Checklist

    Background and Definitions

    Disabilities that are afforded protection under the ADA include learning disabilities, physical disabilities, head injuries and seizure disorders, as well as psychiatric disabilities. In order to reach the level of a disability under the law, the physical or mental impairment must substantially limit one or more of the major life activities of the individual. Also covered are individuals who have a record of such an impairment, or are regarded as having such an impairment (28 CFR 35.104, 36.104). The university has an obligation to reasonably accommodate a disability in the academic setting, although the law does not require an accommodation for someone who is only regarded as having a disability.

    A qualified student with a disability means an individual who, with reasonable modifications if necessary, meets the essential eligibility requirements for the receipt of the services or the participation in programs or activities provided by the university. In her article, "Disability Discrimination in Higher Education: A Review of the 1995 Judicial Decisions" (23 Journal of College & University Law 475, 477 (1997)), Professor Laura Rothstein articulated the rule on essential eligibility and noted the following:

    The programs will bear the burden of demonstrating that the requirements borne by applicants to show intellectual, ethical, physical, and emotional capabilities are essential. However, deference to educational institutions in general, and the healthcare profession in particular, will probably result in determining that criteria such as attitude and communication skills are legitimate requirements.

    Definition of a Learning Disability: A student or applicant must have the following to qualify as learning disabled:

    • average or above average intelligence as measured by a standardized intelligence test which includes assessment of verbal and non-verbal abilities;
    • the presence of a cognitive-achievement discrepancy or an intra-cognitive discrepancy indicated by a score on a standardized test of achievement which is 1.5 standard deviations or more below the level corresponding to a student's sub-scale or full-scale IQ;
    • the presence of disorders in cognitive or sensory processing such as those related to memory, language, or attention; and
    • an absence of other primary causal factors leading to achievement below expectations such as visual or auditory disabilities, emotional or behavioral disorders, a lack of opportunity to learn due to cultural or socio-economic circumstances, or deficiencies in intellectual ability.

    NJCLD Definition of Learning Disability: The National Joint Committee on Learning Disabilities has adopted the following definition:

    Learning disabilities is a general term that refers to a heterogeneous group of disorders manifested by significant difficulties in the acquisition and use of listening, speaking, reading, writing, reasoning or mathematical abilities. These disorders are intrinsic to the individual, presumed to be due to central nervous system dysfunction, and may occur across the life span. Problems in self-regulatory behaviors, social perception, and social interaction may exist with learning disabilities but do not by themselves constitute a learning disability. Although learning disabilities may occur concomitantly with other handicapping conditions (for example, sensory impairment, mental retardation, serious emotional disturbance) or with extrinsic influences (such as cultural differences, insufficient or inappropriate instruction), they are not the result of those conditions or influences.

    Documentation: Who Decides? and, What Records Are Needed?

    The determination as to whether or not the student or applicant is qualified is made by the school or department or university admissions. The determination as to whether or not a disability exists is made by the physician, psychologist, or other specialist in conjunction with the Office of Disability Support Services, whose role is to review the documentation of the disability.

    Learning disabilities may be especially difficult to assess. The Office of Disability Support Services has a learning disabilities expert on staff to review the documentation of the learning disability and assist in the process of making modifications.

    Documenting the need for an accommodation. The existence of a learning disability and the need for accommodation are two different things and may be documented by two different sources. The student (or applicant requesting the special admissions process) must provide documentation verifying the learning disability. The documentation must:

    • be prepared by a professional qualified to diagnose a learning disability, including but not limited to a licensed physician, learning disability specialist, or psychologist;
    • include the testing procedures followed, the instruments used to assess the disability, the test results, and a written interpretation of the test results by the professional;
    • reflect the individual's present level of functioning in the achievement areas of reading comprehension, reading rate, written expression, writing mechanics, vocabulary, grammar, spelling, and math; and
    • reflect the individual's present level of functioning in the areas of intelligence and processing skills.

    The assessment must provide data that support the request for any academic adjustment. If the university requires an additional assessment for the purpose of obtaining a second professional opinion, then the university shall bear any cost not covered by any third party payor.

    Documentation for all other disabilities is also necessary if a student or applicant is seeking an accommodation. In many instances the documentation will not need to be as detailed as the documentation required for learning disabilities. Questions about documentation should be addressed to the Office of Disability Support Services.

    Psychiatric disabilities are present in the student population just as they are in the general population. The question of what constitutes a psychiatric disability for purposes of the ADA is not a question with an easy answer. The ADA defines "mental impairment" to include "any mental or psychological disorder, such as . . . emotional or mental illness" (28 CFR Part 36, Appendix B). Examples of emotional or mental illness include major depression, bipolar disorder and anxiety disorders, which includes obsessive compulsive disorder, post-traumatic stress disorder, schizophrenia and panic disorder. Chronic lateness and exam anxiety would not ordinarily be considered disabilities under the ADA, nor would stress that is not debilitating. The university is not under an obligation to continue to enroll a student who presents a safety risk to self or others. The risk of direct threat to the safey of self or others means a significant risk that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services.

    Professor Laura Rothstein aptly summarizes the law in "Disability Discrimination in Higher Education," supra at p. 479, footnote 29: "Colleges and universities do not violate discrimination law when they act on the basis of student behavior, rather than unwarranted fears about mental illness." She also cautions colleges and universities against using myths and stereotypes to assume that mental health hospitalization renders one unqualified or makes one a direct threat to the community. As is the case with other disabilities, documentation of the disability must be provided to the Office of Disability Support Services.

    Checklist Questions 14-18

    14. How are students made aware that the documentation of the disability is the student's
    responsibility and that the documentation must demonstrate the current need for a
    modification?

    15. Is there a mechanism in place to utilize the university's disabilities experts to evaluate the
    documentation of a disability? How is the availability of the experts made known to faculty
    and staff?

    16. Do your materials make clear the process for resolving disputes as to the existence of a
    disability?

    17. Are policies in place to ensure that records related to disabilities are disclosed only to those
    with a need to know?

    18. Have your faculty and adjuncts been provided with guidance about the various disabilities
    and tips on classroom management of those disabilities? If not, do you perceive a need for
    this type of training?

    Answers
    Checklist Questions 14-18

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