OCR issues dear colleague letter on bullying on the basis of disability

In the last quarter, my most popular blog entry was the one dealing with ADA Compliance Auditing: Higher Education Version, and so I thought I would turn to education again. In this particular blog entry, the United States Department of Education Office for Civil Rights issued a Dear Colleague letter on October 21, 2014, talking about how the Office of Civil Rights would not tolerate bullying on the basis of disability. Here are the salient points:

1. The Dear Colleague letter cites to virtually no case law. With respect to disability-based harassment, the Office of Civil Rights says that the standard is the one for administrative enforcement of § 504 and in court cases where plaintiffs are seeking injunctive relief. They note that it is a different standard than the one contained in private lawsuit for money damages, which, according to the Office of Civil Rights, often requires proof of the school’s actual knowledge and deliberate indifference.

2. Just what is the standard for disability-based harassment? Standard adopted in this letter is a showing of: 1) a student is bullied based on disability; 2) bullying is sufficiently serious to create a hostile environment; 3) school officials know or should know about the bullying; and 4) the school does not respond appropriately.

3. Just what is a hostile environment? According to the letter, the conduct must be sufficiently serious to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school. This is a different standard than what I have seen, for example, from at least one place of higher education, which talks about harassment based on a protected characteristic in terms of whether it is so severe, persistent, or pervasive….

4. When investigating disability-based harassment, the Office of Civil Rights considers the factors laid out in paragraph 2 above, but does not limit itself to those factors. Also, if it does find that all of paragraph 2 above is met, then the Office of Civil Rights find a disability-based harassment violation under § 504. Further, if the student is also receiving services under IDEA or § 504, then the Office of Civil Rights also has a basis for investigating whether there was also a denial of a free appropriate public education under § 504. Obviously, the free appropriate public education piece does not apply to places of higher education. Finally, even if the answer to one or more of the elements in paragraph 2 above is no, if the student is receiving services under IDEA or § 504, the Office of Civil Rights may still consider whether the bullying resulted in a denial of a free appropriate public education that must be remedied.

5. If Office of Civil Rights goes on to investigate whether the student was denied a free appropriate public education as a result of the bullying based on disability, the Office of Civil Rights will also consider whether the school knew or should have known that the effects of the bullying may have affected the student receipt of free appropriate public education services under IDEA or § 504.

6. If the answer to paragraph 5 is no, then there is no free appropriate public education violation. If the answer on the other hand is yes, then the Office of Civil Rights goes on the consider whether the school met its ongoing obligation to ensure a free appropriate public education by promptly determining whether the student’s educational needs were still being met, and if not, making changes, as necessary, to his or her IEP or § 504 plan.

7. If the answer to paragraph 6 is no, then there is a bit of a conundrum. The Dear Colleague letter quite literally says that only if the student is not receiving free appropriate public education services, would the school then be in violation of its obligation to provide a free appropriate public education services. That of course makes absolutely no sense. There must be a typographical error here. That is, the only fair conclusion is that if a student is receiving services under IDEA or § 504, and the school does not meet its ongoing obligation to ensure a free appropriate public education as described in paragraph 6 above, then in that case, there would be a violation of its obligation to provide a free appropriate public education.

Takeaways:

1. The Office of Civil Rights is letting k-12 schools know that bullying on the basis of disability is very much on their radar.

2. You do not see a lot of case law talking about hostile environment with respect to disability discrimination. You do see it with respect to harassment based on other protected characteristics. Hostile environment under this Dear Colleague letter may not match up with case law in your jurisdiction or with your school’s or University’s policies on hostile environment. It is possible that this particular letter has a lower standard for hostile environment (“sufficiently serious,” v. for example: so severe, persistent, or pervasive), than what case law in your jurisdiction might specify. Legal research by legal counsel may be in order to clarify this situation.

3. The Office of Civil Rights Dear Colleague letter is clearly focused on public elementary and secondary schools. However, they also get involved with places of higher education that receive federal funds. The question is whether the Office of Civil Rights will also adopt the hostile environment standard contained in this letter for higher education as well and whether courts will follow along.

Belton v. Georgia settles with a consent decree

In a previous blog entry entitled help-wanted ASL practitioners, I discussed the case of Belton v. Georgia. On October 3, 2014 that case settled with a consent decree. I thought it would be helpful to cover some of the salient points of the consent decree. They are as follows:

Definitional Terms:

1. A deaf class member is a deaf individual eligible for or receiving state-funded services for mental illness, including in state hospitals or a deaf individual awarded comprehensive support waiver program funding.

2. A deaf mental illness class member is a deaf individual eligible for or receiving state-funded services for mental illness, including the state hospitals, who needs non-crisis related therapy or counseling services provided by ASL fluent therapist or counselors or through the use of interpreters.

3. A deaf individual is a person whose hearing is totally impaired or hearing is so seriously impaired as to prohibit the individual from understanding oral communications spoken in a normal conversational tone. This can be a self identified classification regardless of the severity of the hearing loss or mode of manual communication preferred.

What is interesting about the definition of deaf individual that it doesn’t talk about mitigating measures, such as hearing aids or cochlear implants. As such, depending upon how the Georgia Department of Behavioral Health and Developmental Disabilities wants to play it, it is possible you may see arguments over whether a person who otherwise meets the requirements for this consent decree but uses hearing aids and/or cochlear implants, would be qualified to be served under this consent decree. The counter argument would be that the Americans with Disabilities Act as amended prohibits considering mitigating measures in the determination of whether a person has a disability. However, the counter argument to that counter argument is that the consent decree is not dealing with whether a person has a disability, rather they are dealing with whether a person is qualified to receive services under the specific terms of a consent decree. The counter argument to that is that the effective communication regulations of the Department of Justice require that individual preferences be considered. The issue of being culturally deaf v. cochlear implants is an issue that has been raging in the Deaf community for some time with cochlear implants winning out for the most part. Accordingly, the possibility of the use of mitigating measures being a problem as the consent decree is phrased is a real one and not just an academic discussion.

Terms of the consent decree:
1. The Georgia Department of Behavioral Health and Developmental Disabilities must maintain a deaf services office with responsibility for statewide monitoring and management of the provision of services to deaf individuals.

2. The Georgia Department of Behavioral Health and Developmental Disabilities must employ a full-time deaf services director reporting to a director or executive level position with responsibility for disability program services. The director must be ASL fluent, have a working knowledge of deaf culture, and have at least four years of administrative experience in human services, healthcare administration, or related field, or a PhD in any of these fields in lieu of such experience.

Here is what I find interesting about this requirement. I get that there is Deaf and deaf and no I am not being repetitive. I consider myself deaf proud but not Deaf. While I am deaf, I am not Deaf. Deaf refers to someone who is culturally deaf. That means ASL, oftentimes state schools for the deaf, in addition to being deaf in the medical sense (genetically or otherwise). Here is my concern. What if you have a person who otherwise meets the criteria to be a deaf services director even though he or she is not ASL fluent and joint issues prevent that person from becoming ASL fluent. Wouldn’t this criteria be then screening out a person with a disability in violation of the ADA? The answer to that question would then turn on whether ASL fluency is a bona fide occupational qualification of this position. That is, is ASL fluency so critical to the position that you could ignore the possibility that a person could perform the essential functions of this job with or without reasonable accommodations if that person was not ASL fluent?

3. The Georgia Department of behavioral health and developmental disabilities must also employ a full-time community service coordinator to work under the direct supervision of the Director. That person has the responsibility for statewide coordination of all services provided to deaf class members by the department directly or through its provider network. The qualifications for that position are a Masters degree in human services field and at least two years of experience in deaf services delivery. That person also has to be ASL fluent and have a working knowledge of deaf culture and, preferably, system theory. The person should ideally also hold a clinical license and be trained to assist with clinical supervision.

There is also the issue of ASL fluency here and whether it screens out a person with a disability. Again, whether such a claim would fly would depend upon whether ASL fluency is a bona fide occupational qualification for this position. To my mind, that argument is stronger for this position than it was be for the director’s position.

4. The Georgia Department of Behavioral Health and Developmental Disabilities also must hire a full-time interpreter coordinator to coordinate interpreter services for deaf individuals covered by the consent decree.

5. Deaf services will provide monitoring of the provision of services to deaf individuals covered by the consent decree and how they do that is laid out in the decree.

6. Communication assessments performed by qualified communication assessors (qualifications are set forth in the consent decree), must be completed for deaf class members.

7. Within one year of the date of the consent decree, providers of crisis services must have developed plans for the provision of crisis services to deaf class members. Those plans must comply with the Georgia Department of Behavioral Health and Developmental Disabilities policy, as approved by a monitor. Further, the department must require providers to comply with those plans and policies.

8. With respect to state hospital, all deaf class members are to receive services, such as counseling and therapy among other things, consistent with the communication assessment recommendations as set forth in their individual service plan.

9. The support coordinator is responsible for monitoring and advocating for the class member and department staff is responsible for monitoring providers for compliance with implementation of the individual service plan. Further, within six months of the effective date of the order, providers providing services to class members whose individual service plan requires sign language communication must have staff sufficient to meet the requirements of the individual service plan.

10. Within 30 days from the date of the consent decree the Georgia Department of Behavioral Health and Developmental Disabilities, through its provider network, must begin providing services to the class members using ASL fluent therapist for counselors, case managers, or interpreters as demanded by the class member’s individual service plan.

11. Non-crisis related outpatient therapy or counseling services to class members must be provided by ASL fluent therapist or counselors. Telemedicine is okay if it is in accordance with the individual’s preference.

12. With respect to non-crisis related outpatient mental health therapy or counseling services provided to class members, 25% of those services must be performed by ASL fluent therapist for counselors. That figure rises to 45% in the third year and 60% in the fourth year.

13. Case management services for class members must be provided by ASL fluent case managers.

14. The Georgia Department of Behavioral Health and Developmental Disabilities is responsible for contracting with designated providers to pay the cost of employing a contracting with ASL fluent therapist, counselors, and case managers.

15. Within three years the department and/or providers have to have as many qualified interpreters (the consent decree sets forth what is meant by qualified interpreter), on the contract or employed to provide the sign language interpreting services as necessary to fill the requests made to disability services for interpreting for counseling or therapy services. Within three years the number of qualified interpreters has to be at least 12 in number.

16. The consent decree is to be incorporated into the service standards of the respective provided manuals of the department within 12 months of the effective date of the order or sooner if practicable, whichever is shorter.

17. A monitor is responsible for overseeing implementation and compliance of the consent decree and the monitor is given the authority to seek judicial intervention, direction, and modification of the order as necessary.

18. Reasonable attorneys fees to be awarded to plaintiff’s counsel (Parks, Chesin of Atlanta)

Does title II apply even when there are no architectural accessibility standards?

The bloggosphere reports that the City of Lomita California has asked the full Ninth Circuit to rehear the ruling in this case. As is traditional with me, the blog entry is divided into parts: facts, court’s reasoning, and chances en banc/takeaways. The reader is free to focus on any or all of the parts.

I
Facts:

Here’s what happened: a mobility impaired plaintiff sues because the City of Lomita California has no diagonal stall parking on its streets. Therefore, the streets are devoid of accessible parking. The city defends on the ground that it is off the hook because of the absence of regulatory design specification for on street parking facilities. The 10th circuit, as noted by my friend and colleague Richard Hunt here, has said that architectural guidelines can be a safe harbor for a defendant, but of course that assumes that an architectural guideline exist.

II
Court’s Reasoning

The Ninth Circuit (panel of Paez, Nguyen, and Motz with Paez writing the opinion), held that the absence of architectural guidelines does not give the defendant a get out of jail free card and here is how they got there:

1. The ADA was enacted to remedy widespread discrimination against persons with disabilities by providing a comprehensive broad mandate to eliminate discrimination against persons with disabilities through addressing both outright intentional exclusion as well as the failure to make modifications to existing facilities and practices.

2. The Rehabilitation Act defines a program or activity as all of the operations of the Department, agency, special purpose district or other instrumentality of a State or local government. The ADA has been interpreted in much the same way so that the term services, program, or activities includes anything a public entity does.

3. Whether a particular public function is covered by the ADA, depends upon whether that function as a normal function of a governmental entity.

4. The Ninth Circuit has previously recognized that public entities have to maintain accessible public sidewalks even though the implementing regulations do not address sidewalks.

5. The lack of a specific regulation cannot eliminate a statutory obligation.

6. The regulations pertaining to existing and new facilities applied to all normal governmental functions, including the provision of on street public parking.

7. Nothing in the Department of Justice implementing regulations suggests that when technical specifications do not exist for a particular type of facility, public entities are off the hook. In fact, that interpretation made no sense to the court because it would entirely circumvent the regulations requiring newly constructed or altered facilities to be readily accessible.

8. Back in 1994, the Department of Justice in a supplement to their technical assistance manual said that if no standard exists for particular features, those features need not comply with the particular design standard. However the facility must still be designed and operated to meet other title II requirements, including program accessibility. Further, this interpretation must be deferred to by the court because the Department of Justice interpretation of this regulation is not plainly erroneous or inconsistent with the regulation.

9. The Americans with Disabilities Act Architectural Guidelines say that when there are no provisions in the guideline for facility type, element, or feature, those facilities are still subject to other ADA requirements, including the duty to provide equal opportunity. Therefore, the Access Board also intended to impose general accessibility requirements on public entities even where the technical specification for a particular facility are absent.

10. The City can’t complain that it had no notice since the Department of Justice in 1994 clearly broadcasted that independent obligations exist under title II of the ADA even where there are no technical specifications.

III
Chances en banc/Takeaways:

1. In my opinion, much of this ruling is very hard to argue with. It is absolutely true that there are many many cases out there saying that the ADA brings within its scope anything a public entity does. It is also compelling that a lack of specific regulation cannot eliminate a statutory obligation. Finally, the Department of Justice and the architectural accessibility board both make it clear that the ADA creates obligations even where technical specifications do not exist.

2. So where is the weak point in this decision? The weak point to my mind is the court’s discussion of facility and how the existing facility and new facility regulations apply to the situation. The court said that the new facility and existing facility regulations apply because the regulations define facility as all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property. 28 C.F.R. § 35.104. The court said that while they will not specifically address the question of whether on street parking areas are facilities because they constitute parking lot to portions of the road as argued by the Department of Justice, it still was the case that on street parking areas qualify as other real property. The counterargument is that the plain meaning of facility is being stretched here to perhaps beyond the breaking point.

3. So here’s the problem. Let’s assume that title II of the ADA applies even though there are no technical specifications dealing with diagonal stall on street parking. The analysis, as mentioned above, for that persuades me at any rate. Let’s also assume that the definition of facility is being stretched to the breaking point and so those regulations do not apply. Accordingly, just what is a governmental entity or place of public accommodation supposed to do in the absence of guidelines. Preventive law suggests two possibilities. First, acting as if the existing facilities and new facilities regulations apply even though they might not. Second, looking to the Americans with Disabilities Act Architectural Accessibility technical bulletin, which says that in new construction and alteration, a reasonable number, but at least one of the type of element should be designed to be accessible. Thus, this preventive law approach would mean ensuring that a reasonable number of a particular design elements would be made to be accessible. Of course, we don’t know what a reasonable number would be and how that number would be determined. Preventive law would suggest that reasonable number would be governed by an objective standard based upon objective evidence.