q A Roadmap for the Special Needs College Student - New Jersey Business Lawyers | Outside General Counsel™

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A Roadmap for the Special Needs College Student

Moving from Child Find to Self-Report

By Laura A. Siclari

IDEA’S Child Find Obligation

For disabled students in grades pre-K to 12, many decades of hard-fought advocacy and court battles have yielded a vast body of case law, standards, regulations and guidance governing public school districts’ duties and expectations for identifying disabled students and providing them with free and appropriate public educations enabling them to make meaningful educational progress. Central to these obligations is the federal Individuals with Disabilities Education Act (IDEA)1—our nation’s special education law—which guides the lifecycle of a disabled grade school student and birthed the Individualized Education Program, or IEP, which is a disabled student’s guidebook each school year for their education program and related school support services. Under the IDEA, school districts are held accountable for bench- marking whether a student classified as disabled has made meaningful educational progress in their program, as evidenced by meeting or exceeding the annual goals and objectives contained in their IEP.

One of the hallmarks of IDEA is its “Child Find”2 mandate, laying responsibility on public schools to proactively seek out and identify potential students with disabilities from birth to age 21 in order to evaluate them and determine their eligibility for special education. Through Child Find, disabled students are meant to be assured that their school will find them if they are struggling and need academic supports.

College-Bound, Student-Led Disability Services

The experiences of classified students in grade school—with their annual IEP meetings attended by their parents, where their schools examine last year’s progress and offer tailored and tweaked IEP services for the next school year— stand in stark contrast to the experiences that disabled students will have upon transitioning to college. Many students, coming directly from a school-led dis- ability services mindset in high school, are startled to find that they are now on their own and that their IEPs do not follow them to college. Nor will their col- leges necessarily even know—or care to know—which students require special educations services unless and until those students take the initiative by self- reporting their disabilities to their col- leges and requesting accommodations.

Indeed, this is the reality for many post-high school (post-IEP) students, as data indicates a growing percentage of students with special needs attending college undergraduate programs in the United States, with nearly 20% of college students during the 2015-2016 school year reporting that they had a disability.3 Arguably, the percentage of college students with disabilities is even higher when taking into account students who, for various reasons, did not report having disabilities.

The shift in disability services responsibility from school-led to student-led in the transition from high school to college is because IDEA, by design, only applies to grade school special education students and sunsets once a student graduates from high school. College students with disabilities are protected and governed by the legal obligations under our federal civil rights laws, primarily the Americans with Disabilities Act (ADA)4 and Section 504 of the Rehabilitation Act of 1973 (Section 504),5 which prohibit discrimination against disabled individuals and require places of public accommodation and schools that receive federal and/or state funds, to pro- vide equal access and accommodations to students and other individuals with disabilities. Although these same laws also protect elementary and secondary school students, neither the ADA nor Section 504 are special education statutes, per se, and therefore do not offer the same levels of protections as those offered under the IDEA. However, since IDEA does not apply to post-secondary students, the protections afforded under the ADA and Section 504 are all that are available once a student enters college.

The Nuts and Bolts of the College Accommodations Process

Despite the emerging effort by academia and media to reshape disability resources on college campuses with a social justice lens,6 at its core, such schools are bound by their basic legal obligations under federal law to provide access and accommodations to their dis- abled students, with Section 504 being the primary driver behind post-secondary schools’ disability support obligations. Applicable colleges governed by Section 504 must designate staff members—or create disability service offices— to coordinate student disability support requests and letters of accommodation.

Self-Reporting a Disability

The first step for an incoming college student with a disability seeking supports is to contact the college’s designated disability coordinator or disability services office and advise that they are seeking accommodations for a disability. Many schools have a standard disability registration form, often found on the college’s website, which invites the student to disclose their disability(ies) and pro- vide paperwork documenting the dis- ability. This step is critical, as only “qualified individuals”7 who meet Section 504 and the ADA’s definitions of “disability” are entitled to accommodations. The applicable definition of disability is as follows: “a physical or mental impairment that substantially limits one or more major life activities of such individual.”8 The definition goes on to state that “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”9 “Major life activities” also encompasses limitations of “major bodily functions,” such as normal cell growth (i.e. cancers), functions of the immune system, and neurological, among other functions.10 Temporary conditions or injuries lasting six months or less are not considered permanent dis- abilities and generally do not qualify as a disability under these laws.11

Supporting Documentation

A critical next step to establishing a student’s qualifying disability is to pro- vide supporting documentation, typical- ly a letter or report prepared by an appropriate professional, such as a medical doctor, psychologist or other qualified diagnostician. According to guidance provided by the U.S. Department of Edu- cation:

“the required documentation may include one or more of the following: a diagnosis of [the student’s] current disability, as well as supporting information, such as the date of the diagnosis, how that diagnosis was reached, and the credentials of the diagnosing professional; information on how [the student’s] disability affects a major life activity; and information on how the dis- ability affects [the student’s] academic performance. The documentation should provide enough information for [the student and the] school to decide what is an appropriate academic adjustment.”

The degree of documentation required to establish a qualifying disability and applicable accommodations varies by college. For example, Rutgers University has an extensive listing of dis- ability documentation guidelines on its website, broken down by the most common disabilities.13 For other schools, a simple letter from an evaluator diagnosing a disability will suffice. Certain col- leges request that the documentation also list the specific accommodations that the doctor or diagnostician recommends, so, in such cases, it would be important for a student to educate them- selves on the available accommodations and coordinate with their doctor to ensure that the applicable accommodations are included in the supporting letter or report for the college.

Determining the Accommodations

Once a qualifying disability has been established, colleges are required to pro- vide reasonable and appropriate accommodations tailored to that student’s needs. The Section 504 implementing regulations for accommodations in academic institutions outline the types of accommodations (called “academic adjustments”) that colleges must make available to their disabled students in the areas of: (1) academic requirements, (2) course examinations and (3) auxiliary aids.14 In the area of academic requirements, these accommodations may, by law, include: changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted. However, schools are not required by law to modify the “essential” academic requirements of a particular degree or licensing program.15

In the area of course examinations, the federal regulations generally state that schools “shall provide such methods for evaluating the achievement of students…as will best ensure that the results of the evaluation represents the student’s achievement in the course, rather than reflecting the student’s impaired sensory, manual, or speaking skills.”16 No specific examination accommodations are prescribed in the regulations. However, the U.S. Department of Education has issued guidance on appropriate accommodations for standardized tests, which is informative.17 Such accommodations can include, but are not limit- ed to, extended time, screen-reading technology, scribes, oral exams and distraction-freerooms.18

In the area of auxiliary aids, the federal regulations have provided a list of several auxiliary aids, making clear that the list is not to be considered exhaustive. The regulations state:

Auxiliary aids may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hear- ing impairments, readers in libraries for students with visual impairments, class- room equipment adapted for use by students with manual impairments, and other similar services and actions.19

The federal government has issued guidance containing an even more expansive list of potential auxiliary aids, including talking calculators and specialized gym equipment, to name a few, illustrating that a broad range of potential aids should be considered by colleges to meet the needs of their disabled students.

Finally, it is important to note that colleges are not required to implement accommodations that would (1) “fundamentally alter” the nature of the pro- gram, services, or facilities21 or (2) result in an undue financial or administrative burden to the school.22 The appropriate- ness or burden of a requested accommodation is determined on a case-by-case basis. These significant parameters should be considered in any discussion concerning appropriate modifications or accommodations.

The Letter of Accommodation

After completing the accommodations approval process, a college typically issues a Letter of Accommodation (LOA), or similar document, listing the accommodations for which a student has been approved for the upcoming academic semester or school year. This letter is the college’s official documentation establishing that the student is entitled to dis- ability accommodations at their college. The LOA or similar document should be shared with each of the student’s professors and potentially with exam proctors, as applicable. Some colleges have a process whereby the disability services coordinator handles the notifications to professors, and others leave that responsibility to the student. It is critical to note that, even with a Letter of Accommodation, there is no guarantee that all approved accommodations will always or automatically be provided in all courses and for all exams. Every college is different, and all will evaluate accommodation needs differently, sometimes on a course-by-course basis instead of on a blanket semester-by-semester basis. For high-stakes exams at larger universities, such as Rutgers, students may be required to submit individual exam request forms a certain number of days prior to each and every exam to affirmatively request accommodations (such as extended time, quieter alternate testing locations, use of a reader or frequent breaks).23

For these reasons, it is imperative that a student be proactive and develop a mindset of continuous self-advocacy to always be aware of which accommodations have been approved and ensure that each professor in each course has a copy of their Letter of Accommodation and is providing the agreed-upon accommodations. Any ongoing school-specific requirements to re-engage certain accommodations for each semester or for individual exams—such as a request for a note-taker or exam-specific accommodation request forms—must be adhered to by the student as well. While disability services coordinators are tasked with ensuring that their assigned students are informed of all ongoing requirements and processes for requesting accommodations, a student cannot always rely on timely information and should seek out that information. At minimum, even with the supports of the disability services coordinator, students should plan to always double-check all written disability services policies and requirements for their college, which are typically found on the college’s website and/or in its student handbook.

Continued Barriers to Accommodations

Significant attention has been paid over the past decade and in more recent years to identifying why more disabled students do not fully avail themselves of college disability services and accommodations. One qualitative study that tracked a number of disabled college students identified five primary drivers for this outcome: (a) identity issues, (b) desires to avoid negative social reactions, (c) insufficient knowledge, (d) perceived quality and usefulness of services, and (e) negative experiences with faculty.24 One research study also found that many students with disabilities first seek accommodations only after an academic crisis.25 Closely related, the same research found that students who sought services earlier performed better academically than students who postponed seeking services. Although several of the identified barriers are student-imposed—i.e. wanting to “try” college without accommodations or being fearful of the stigma attached to self-identifying with a disability—other barriers are imposed by the academic institutions themselves. Indeed, students in several research studies reported dis- ability services professionals who discouraged their use of accommodations or professors who claimed to be unable, or were unwilling, to implement approved accommodations.26

Based upon the identification of these varied barriers to college accommodations, a multitude of approaches could be implemented as best practices to help reduce these impediments. For example, at the high school level, more robust and informative transition services provided by child study teams would go a long way to help ensure earlier and greater student knowledge about the availability of dis- ability services and the college accommodations process prior to entering college, with the goal of encouraging early self-reporting of disabilities during those students’ freshman years of college. During freshman orientations at all college campuses, information about the avail- ability of disability services and the process to seek accommodations should be part of the programming. Awareness campaigns led by a partnership between college disability services and their more senior disabled students may also assist in de-stigmatizing the concept of disability self-identification for underclassmen. Lastly, a change in mindset and/or further training may be required for dis- ability service professionals and professors alike as to what the law requires academic institutions to offer to its disabled students.

With common-sense actions such as these and a shared goal between schools and students of creating a successful college experience for all students, future statistical outcomes will likely improve for disabled college students in hand with the growing movement toward ensuring more enhanced and earlier access to disability accommodations.

Endnotes

1. 20 U.S.C. § 1400 et seq.
2. 20 U.S.C. § 1412(a)(3).
3. nces.ed.gov/programs/digest/d19/ch_3.asp.
4. 42 U.S.C. § 12132. Title II of the ADA protects people with disabilities from discrimination by state-funded schools such as state universities, community colleges, and vocational schools.

5. 29 U.S.C. § 794. Under Section 504, any school that receives federal funds may not discriminate on the basis of a disability. Most post- secondary schools receive some form of federal funding, such as federal grants to pay student tuition.

6. See, e.g., Nancy J. Evans, et al., Disability in Higher Education: A Social Justice Approach (2017).

7. 29 U.S.C. § 794(a).
8. 29 U.S.C. § 705(20)(B); 42 U.S.C. §12102(1)(A).
9. 42 U.S.C. § 12102(2)(A).
10. 42 U.S.C. § 12102(2)(B).
11. 42 U.S.C. § 12102(3)(B).
12. www2.ed.gov/about/offices/list/ocr/transition.html.
13. ods.rutgers.edu/students/

documentation-guidelines. 14. 34 C.F.R. § 104.44.
15. 34 C.F.R. § 104.44.
16. 34 C.F.R. § 104.44(c).
17. ada.gov/regs2014/testing_accommodations.html. 18. Id.

19. 34 C.F.R. § 104.44(d)(2).
20. www2.ed.gov/about/offices/list/ocr/docs/auxaids.html.
21. ada.gov/reachingout/title3l1.html. 22. 28 C.F.R. § 36.303.
23. ods.rutgers.edu/exam-accommodations.

24. Laura Marshak, et al., Laura Marshak, et al., Exploring Barriers to College Student Use of Disability Services and Accommodations, Journal of Postsecondary Education and Disability (v22 n3 2010) at 151.

25. Kirsten L. Lightner, et al., Reasons University Students with a Learning Disability Wait to Seek Disability Services, Journal of Postsecondary Education and Disability (v25 n2 Summer 2012) at 145.

26. Charles Toutain, Barriers to Accommodations for Students with Disabilities in Higher Education: A Literature Review, Journal of Postsecondary Education and Disability (v32, n3 Fall 2019) at 297.

Reprinted with permission from NJSBA’s April 2022 issue of New Jersey Lawyer.

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