DJ 202-PL-26 JUL 29 1992 Cynthia M. Shewan, Ph.D. Director, Research Division American Speech-Language Hearing Association 10801 Rockville Pike Rockville, Maryland 20852 Dear Dr. Shewan: This letter responds to Ms. Lorraine Eyde's request for informal guidance on the three case studies your committee has prepared for inclusion in the multidisciplinary casebook on test misuse being published by the American Psychological Association. The case studies raise important issues for test-takers with disabilities, and we appreciate your committee's efforts to provide accurate guidance to test administrators. As requested, we have reviewed the analysis provided for each case for conformity with the requirements of the Americans With Disabilities Act ("ADA"). In general, we urge that your materials be revised to accurately reflect the statutory framework of Titles II and III of the Americans With Disabilities Act, which is destined to have a major impact on test administration. I. General Recommendations We recommend that the analysis of each case study begin by discussing whether the examinee or test-taker is covered by the Americans With Disabilities Act. For purposes of coverage under the ADA, a person with a disability is: - an individual who has a physical or mental impairment that substantially limits one or more major life activities; - an individual who has a record of such impairment; or cc: Records; Chrono; Wodatch; Breen; Foran. :udd:foran:shewanltr 01-01077 - 2 - - an individual who is regarded as having such an impairment. 28 C.F.R. S36.104. The analysis should then point out that once it is determined that the potential test-taker is an "individual with a disability" under the Act, it is necessary to consider the status of the entity administering the test and the purpose of the test. Title III governs private entities offering examinations, while Title II applies to licensing activities by state and local government entities. Only one of the case studies you submitted for our review, Case #90, involves Title III alone. Cases #88 and 89 would be governed by Title III and II both. A. Title III All three of the case studies submitted for review involve the administration of examinations by private entities. Accordingly, the analyses for these cases should point out that the regulations promulgated under Title III of the ADA, effective January 26, 1992, provide very explicit requirements for private entities administering examinations, including the following: - Any private entity that "offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes" must offer such examinations or courses in an accessible place and manner or offer alternative accessible arrangements for people with disabilities. 28 C.F.R. S36.309(a). - Examinations must be selected and administered so as to ensure that the examination accurately reflects an individual's aptitude or achievement level, rather than reflecting the individual's impaired sensory, manual or speaking skills. 28 C.F.R. S36.309(b)(1)(i). - Where necessary, examinations must be modified for people with disabilities. Required modifications may include changes in the length of the time permitted to complete the exam or adaptation of the manner in which the exam is given. 28 C.F.R. S36.309(b)(2). - Auxiliary aids and services must be provided for test- takers with disabilities when necessary, unless offering a particular aid or service would "fundamentally alter the measurement of the skills or knowledge the examination is intended to test or would result in an undue burden." 28 C.F.R. S36.309(b)(3). 01-01078 - 3 - B. Title II Two of the three case studies submitted for review also involve licensing activities by state and/or local government entities, and are thus covered by Title II of the ADA in addition to Title III. The analysis of these cases should explain that Title II, which took effect on January 26, 1992, generally prohibits discrimination on the basis of disability by public entities (instrumentalities of state and local government). Specifically, the regulations under Title II prohibit the public entity from discriminating against qualified individuals with disabilities on the basis of disability in the granting of licenses or certification. A person is a "qualified individual with a disability" with respect to licensing or certification if he or she can meet the essential eligibility requirements for receiving the license or certification. Like Title III, the regulations under Title II require the testing entity to make reasonable modifications in testing practices, policies, or procedures. Generally, Title III regulations should be used as a guide in determining what constitutes discriminatory conduct by a public entity in testing situations under both Titles II and III. II. Individual Case Study Comments A. Case #88: Reasonable Testing Accommodations for a Person With Attention Deficit Disorder 1 Focus Questions Both of the "Focus Questions" for Case #88 should be rephrased. Question 1 uses incorrect terminology. The term "reasonable accommodation" actually applies only to Title I of the ADA. The analyses for the three case studies involve Titles II and III of the Act. The phrase "reasonable accommodation" should be replaced with "reasonable modification" throughout. Thus, the question might be rephrased as follows: "List the criteria for determining what reasonable modifications in testing practices, policies and/or procedures are necessary to avoid discriminating against a test-taker on the basis of disability." Question Two is also problematic. The question "what are the arguments in favor of granting a person with a disability special administration procedures," suggests that modifying testing practices, policies or procedures for persons with disabilities is a voluntary matter. The question should instead remind testing administrators of their legal duty to provide such modifications. Thus, the question might read: 01-01079 - 4 - "What are the legal requirements of testing administrators with respect to modifying testing policies, practices or procedures for persons with disabilities?" 2. Analysis (a) Paragraph 1 Paragraph 1 of the analysis for Case #88 is not wrong; it is simply incomplete. The analysis should add a section discussing all applicable ADA requirements. In Case #88, the State Education Agency (SEA) administered the test in consultation with a private testing company. The testing company would be covered by Title III's requirements. If the teacher in Case #88 had requested auxiliary aids which would result in an undue burden, or would "fundamentally alter the measurement of the skills or knowledge the examination is intended to test," the company would not be required to provide such aids. 28 C.F.R. S 36.309(b)(3). Meanwhile, the other entity presented in the case study, the State Education Association (SEA), appears to be a "department, agency,... or other instrumentality of a State," 42 U.S.C. S 12131(1)(B), and would thus be covered by Title II. As a state government entity, the SEA would be prohibited from discriminating against qualified individuals (those who meet essential eligibility requirements) in the granting of licenses or certification. Because the phrase "essential eligibility requirements" is taken from the definitions in the regulations implementing section 504, caselaw under 504 is applicable to its interpretation. It is therefore appropriate for the Case #88 analysis to retain a discussion of caselaw under section 504 -- so long it reflects recent developments in the law, as discussed below. (b) Paragraphs 2-4 The major problem with the text of paragraphs 2-4 in the Case #88 analysis is that it is based on a district court decision which was reversed on appeal. In Pandazides v. Virginia Board of Education, 946 F.2d 345 (4th Cir. 1991) (attached), the appellate court found that the district court had erred in concluding that the teacher with learning disabilities in Case #88 was not "otherwise qualified." The appellate court stated that the trial court had to do more than simply determine whether the teacher met all of the stipulated requirements of the Virginia Board of Education (one of which was passing a "communication skills" test) -- the court had to look to the actual requirements of the particular position sought. Thus, the appellate court held that the question of whether the teacher was "otherwise qualified" should involve two factual determinations: (1) whether the teacher could perform the 01-01080 - 5 - essential functions of a school teacher, and (2) whether the requirements imposed by the Board actually measured those functions. Moreover, the appellate court held that even if the lower court were to determine that the teacher could not perform her duties, it would have to determine whether modifications could be made to allow her to teach in any event. Obviously, the appellate and district courts' legal analyses differ markedly, and paragraphs 2-4 in the analysis for Case #88 should be rewritten accordingly. Further, the new analysis should note that the results in Case #88 reflect the judgment of one judicial circuit only; other circuits' interpretation of section 504 may differ.1 B. Passing the Bar Examination With a Learning Disability: Case #89 The analysis for Case #89 suggests that bar examiners follow the recommendation of the National Conference on Bar Examiners and develop a "routine policy" with respect to test-takers with disabilities. This analysis should be rewritten to reflect the ADA's goal of individualized assessment. See preamble to Title II regulations (stating that ascertaining the accommodation needs of individual persons with disabilities will depend on the "individual needs" of that person.) (Preamble to Section 35.130, "General Prohibitions Against Discrimination"). Under the Title III regulations, the focus should be on the examination's measurement of the individual test-taker's skill or aptitude. See 28 C.F.R. S 36.309(b)(1)(i) (a private entity offering an examination covered by the section must assure that the examination is selected and administered so as to best ensure that the examination accurately reflects an individual's aptitude or achievement level or other factor the examination purports to measure, rather than any impaired sensory, manual, or speaking skills.) 1 See, e.g., Wynne v. Tufts University School of Medicine, 932 F.2d 19 (1st Cir. 1991) (academic institution has statutory obligation to reasonably accommodate persons with disabilities unless it can prove accommodations would result in substantial alteration of the program, or would impose an undue burden); Taylor v. U.S. Postal Service, 946 F.2d 1214 (6th Cir. 1991) (whether individual meets the statutory definition of handicapped under the Act is best suited to a case-by-case analysis); Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368 (3rd Cir. 1991) (stating that "reasonable accommodation" must be decided on a case-by-case basis, and holding there can be no summary judgment on Rehabilitation Act claim, where issue of material fact exists as to whether medical college had reason to know that student's condition was a handicap and whether college provided reasonable accommodation). 01-01081 - 6 - The other issue raised in Case #89 concerns documentation of a disability. The analysis should point out that examiners may require evidence that an applicant is entitled to modifications or aids, but requests for documentation must be reasonable and must be limited to the need for the modification or aid requested. Appropriate documentation might include a letter from a physician or other professional, or evidence of a prior diagnosis or accommodation, such as eligibility for a special education program. Preamble to Section 36.309, "Examinations and Courses." In this connection, the analysis for Case #89 is remiss in suggesting that a person with a newly diagnosed disability who has never before received the benefit of modified testing practices or procedures has a less credible claim to such modifications. The question is whether the individual now qualifies as a "person with a disability" under the Act, and whether it is necessary to modify testing practices or procedures in order to accurately test the individual's skill or aptitude, and not his or her disability. C. Testing individuals With Physical Disabilities: Case #90 The analysis for Case #90 shares an error common to all three case studies -- failing to use the ADA's analytical framework and terminology. More specifically, Case #90's analysis of the first individual, Karen, should focus on whether she is an individual with a disability for purposes of the Act, and whether modifications in testing policies, practices or procedures should have been provided to ensure that the exam reflected her aptitude and not her disability. The issues raised by Case #90's second example are slightly different. The analysis states: "It is certainly easier for a school counselor not to have to request special accommodations and proctor the special administration, but failure to request special accommodations for this reason is not professional behavior." If the school were the entity offering the test, and the counselor knew of Paul's "history of need for special accommodation," the counselor's purposeful failure to advise Paul of his right to receive a special test administration would not only be unprofessional -- it might very well be illegal. In Case #90, however, it appears that an entity other than the school administered the college admissions test. Under those circumstances, the counselor may not have a direct legal duty to advise Paul of his right to receive appropriate modifications. Nevertheless, the analysis should be revised to reflect a considerably stronger duty on the part of the school counselor to advise Paul to receive testing modifications than as now stands. 01-01082 - 7 - The third example in Case #90 involves an individual who was provided alternative testing arrangements which featured numerous distractions. Such arrangements would be insufficient under the ADA. See 28 C.F.R. S 36.309(b)(4) (comparable conditions must be provided when alternative accessible arrangements are made). I hope that this information has been helpful to you. If you have any questions, please contact Sheila M. Foran at (202) 616-2314. Sincerely, Philip L. Breen Special Legal Counsel Office on the Americans with Disabilities Act Enclosures: Title II and III Regulations and Technical Assistance Manuals; "Testing Accommodations for Persons With Disabilities: A Guide for Licensure, Certification and Credentialling"; Pandazides v. Virginia Board of Education, 946 F.2d 345 (4th Cir. 1991). 01-01083