NCAA Mental Health Best Practices and the ADA

I

NCAA Mental Health Best Practices and the ADA

Recently, the NCAA came out with best mental health practices for student athletes. Those best mental health practices can be found here. What I am particularly concerned with is Appendix F, which has all kinds of screening questions designed to assess whether a student athlete has a particular MH disability. Those screening questions include: a general index; disordered eating; depression; anxiety; alcohol use; marijuana use; sleep apnea; insomnia; and ADHD. There is absolutely no doubt that these questions would be considered disability related inquiries as discussed in this blog entry of mine. So, the very first question is whether the student athletes would be considered employees. If so, these disability related inquiries, as discussed in the aforementioned blog entry, would not be permissible unless made pursuant to a conditional job offer i.e. being a student athlete. Whether a student athlete is an employee is not an easy question to answer. For example, many people are aware that an administrative judge of the NLRB found Northwestern football players to be employees. That decision was appealed and the NLRB elected not to get involved and threw it out.  Nevertheless, the question remains whether a student athlete is an employee. If they are, then the title I statutory scheme with respect to preemployment medical inquiries/disability related inquiries, conditional job offers, postemployment medical exams needs to be followed. If they are not, then, the question becomes just what are the essential eligibility requirements of the program or activity the student athlete is involved in. Clearly, a school would be within its rights to insist upon a person being physically and mentally able to perform as a student athlete. The question is has the school listed that as an essential eligibility requirement? Have they even methodically developed essential eligibility requirements?

So, let’s assume that the student athlete is not an employee. The question then becomes has the school listed being in good physical and mental health as an essential eligibility requirement of being a student athlete. Assuming it has, I don’t see the problem in having these questions answered. The question becomes what does the school do once the questions are known. If the school summarily dismisses or unduly restricts an athlete that reveals positive answers to any of these questions, then the school has a problem. The question the school needs to answer is whether the person can do the essential functions of being a student athlete with or without reasonable modifications; Reasonable modifications being anything short of a fundamental alteration or an undue burden.

II

Takeaways:

  1. Perform an audit as to whether your University or college is in compliance with the ADA.
  2. Don’t forget about § 504 of the Rehabilitation Act, which has similar but not exactly the same rules as the ADA. Also, causation is different.
  3. Make sure your athletic programs have essential eligibility requirements and that being in good physical or mental health is one of those requirements.
  4. Once asking the questions and getting the answers, make sure that if a disability is revealed, it is assessed whether the person can perform the essential functions of being a student athlete with or without reasonable modifications. Remember, you want to be thinking in both terms of an undue burden as well as fundamental alteration.

Bet You Didn’t Know That Alberson’s v. Kirkingburg Was Still Good Law

Today’s case, Bibber v. National Board of Osteopathic Medical Examiner, Inc., a decision that came down April 11, 2016, from the U.S. District Court for the Eastern District of Pennsylvania is ostensibly about one thing but turns out to be about something else. That is, it raises the real question as to whether Albertson’s, Inc. v. Kirkingburg, by 527 U.S. 555 (1999) might still be good law despite the amendments to the ADA found at 42 U.S.C. § 12102(4)(E)(i)(IV). As is typical for my blog entries, I have divided the blog entry into categories: facts; court’s reasoning; and takeaways. As always, the reader is free to focus on any or all of the categories.

I

Facts

The plaintiff is a third year medical student scheduled to take the Comlex I exam on April 13, 2016. She is seeking accommodations on that exam because she is a slow reader as a result of her congenital deafness and being dyslexic. She only can read one word at a time and usually uses her finger, pencil, or note card to follow along. She drops her head close to the table to be able to read in order to ensure her visual field is close to the words. She often has to reread long passages to confirm her understanding of the material. Considering her deafness and her dyslexia, it isn’t surprising that she has a lifelong struggle with reading. She had to repeat kindergarten after failing to master the alphabet. In first grade, she was sent to separate reading classes and given accommodations, such as extended time for exams. She was also taken out of class so she could receive specialized instruction in other subjects and various occupational therapies. In fourth grade, she began working with a reading specialist using the Orton-Gillingham and Wilson reading methods (well-known methods for helping dyslexics learn how to read). During that time, she learned strategies to improve her reading, including how to appropriately sound out words and process word with multiple syllables. The program turned out to be a great help. Through high school she continued to receive accommodations, including extra time to complete exams. She also received extra time to complete standardized test, such as the PSAT, the SAT, the SAT II, and advanced placement exams. She then went on to Colby College, a very selective small liberal arts school in Maine, where she was also granted accommodations, including time-and-a-half on exams and quizzes. Since it took so long for her to complete her schoolwork, she didn’t have much of a social life in college. She did try to increase the speed at which she got her work done by working with study groups and having friends read to her. She also had classmate take notes for her in the classes. She also received an exemption from Colby College’s foreign language requirement. In 2008, she wanted to take the MCAT exam, but when she contacted the administrators of the MCAT, she was informed that her evaluation was out of date and that she would have to be evaluated in order to be considered for any accommodations. Not surprisingly, the evaluations the testing entity wanted her to do would have cost upwards of $5000. She could not afford that and so instead she studied for a 10 hours a day using study materials from both Princeton and Kaplan. When she took the MCAT, she nonetheless received average scores on the sections. She then applied to medical school after taking the exam but was not accepted to any school. She then pursued a teaching career for three or four years after that. Next, she attended what is now the Rutgers School of Biomedical Sciences. Before getting into that program, she had to take the GRE where she achieved an average score on the GRE, where she received a score in the 71st percentile on the verbal reasoning section and a score in the 93rd percentile in the analytical writing section, which was enough to get her into the school. She did not request accommodations for the GRE. While in graduate school she was granted accommodations, including receiving 50% extended time to complete examinations. She was successful in graduate school and graduated with a GPA of 3.71. After finishing the graduate school, she once again applied to medical school and took the MCAT a second time. This time, she received an average overall score and also an average score on the verbal reasoning section. She attributed that improvement to her test taking strategies on the physical science section of the exam. She applied to several medical schools and was accepted to the Ronan School of Osteopathic Medicine where she again requested accommodations. After being evaluated, she received accommodations, including extra time to take examinations. She achieved good grades in medical school, earning grades of pass, high pass, and honors. She also has taken several standardized tests while in medical school both with and without accommodations. At trial she testified that she enjoys reading despite it being difficult for her and said that she could read and write. She also noted that she can read menus and stop signs. Finally, she stated that she can read things normally as long as she is not timed. As part of the run-up to trial, she was administered a test that showed she was in the 5th percentile reading comprehension when compared to other college graduates and that her reading rate was measured to be in the 1st percentile when compared to other college graduates. On the other hand, experts for the National Board of Osteopathic Medical Examiners said that she would not entitled to extended time because she received average MCAT and GRE scores without accommodations and she had average scores on another test. In particular, her scale reading comprehension scores were average compared to a population of readers spanning 10th-graders through students in the second year of college. On the Woodcock-Johnson reading mastery test, she achieved scores in the 41st percentile in word reading, the 75th percentile in word comprehension, and the 91st percentile in passage comprehension.

II

Court’s Reasoning

In holding that the plaintiff was not substantially limited in the major life activity of reading and processing information, the court reasoned as follows:

  1. An analysis as to whether an impairment substantially limits performance in a major life activity must be compared to the individual’s ability to those of most people in the general population.
  2. The Department of Justice heavily favors an individualized assessment or evidence that a qualified professional has individually and personally evaluated the candidate as opposed to simply considering the scores from review of documents.
  3. Factors considered by courts across the country include: 1) an individual’s objective test results in comparison to an average person; 2) the individual’s other life activities, including extracurricular activities; 3) any pattern of substantial academic difficulties; and 4) whether the individual has been afforded testing accommodations in the past.
  4. Department of Justice has taken the position that if an applicant had been granted accommodation post high school by a standardized testing entity, then there is no need for reassessment for subsequent examination.
  5. Referencing a decision by now Justice Sotomayor when she was a U.S. District Court judge, Bartlett v. New York State Board of Law Examiners, 2001 U.S. Dist. LEXIS 11926, 2001 WL 930792 (S.D.N.Y. August 15, 2001), a disability cannot be based on outcomes alone, particularly in the context of learning disabilities, especially where plaintiff is extremely bright and hard-working and uses alternative route to achieve academic success. That is, the focus is on how a major life activity is substantially limited and not on what outcomes an individual can achieve.
  6. The amendments to the ADA flatly state that the determination of whether the impairment substantially limits a major life activity has to be made without regard to mitigating measures.
  7. Psychometric data shows that the plaintiff reads at an average level. Accordingly, her disabilities do not substantially limit her ability to read and process information as compared to the general population. In particular, on one test when compared to other 28 year olds, she scored in the 68th percentile in word reading, the 53rd percentile and to pseudoword decoding, and the 82nd percentile in spelling, all of which were squarely within the average range for people in her age group (makes you wonder about the literacy of 28 year olds in the U.S.…)
  8. Her own expert testified that the plaintiff was entitled to only 25% more time on the exam.
  9. Without accommodation, the plaintiff scored in the 71st percentile in the verbal reasoning section when compared to college graduates and college seniors seeking to attend graduate school. When she took the MCAT twice, both times she scored in the average range on the most reading intensive section of the test when compared to college seniors the graduate wishing to attend medical school. She also completed all three of those exams without any accommodations. Therefore, her confidence in taking those exams without even attempting to receive accommodations speaks big volumes about whether her dyslexia is substantially limiting when compared to high achieving groups of people, let alone the general population.
  10. On the COMSAE test (essentially the PSAT for COMLEX), when she took it a second time, she finished the exam in less than the time provided and received an acceptable performance score.
  11. She testified that she is an avid reader and has no problems reading menus, and traffic signs; she can read, though it takes her longer to do so. Thus, she presents the picture of a slow reader who can read effectively in both academic situations and daily activities.
  12. Since the court has no evidence of the plaintiff’s reading abilities prior to fourth grade other than her testimony, it was not possible to conclude that without using the mitigating measures she uses that she was substantially limited by her dyslexia.
  13. The court distinguished the Sotomayor opinion in several ways.
    1. The plaintiff here is a better student, a better standardized test taker, and has much better grades.
    2. The plaintiff did not struggle on the GRE in the same way.
    3. The plaintiff reads for pleasure and has no trouble with everyday reading tasks.
    4. The plaintiff failed to produce sufficient evidence that her reading process is slow, labored, and difficult when compared to the general population.
  14. The decision should not be read by the National Board of Osteopathic Medical Examiners as a license to deny accommodations to individuals with a history of accommodations and a dyslexia diagnosis from childhood. Even so, unique facts of this case necessitate the conclusion that the plaintiff is not a person with a disability as defined by the ADA.

III

Takeaways:

  1. In Albertson’s, the Supreme Court said that mitigating measures included any mitigating measures that a person develops on his own, even including neurological accommodations. As mentioned above, the amendment to the ADA explicitly overruled that decision. However, this case has you wondering whether that is indeed the case. The court says that they simply don’t have evidence before fourth grade to make the call. However, objectively speaking, it is pretty obvious that the mitigating measures she developed changed the trajectory of her reading and processing abilities. In particular: she had trouble reading since the earliest days of her formal education; she repeated kindergarten after struggling to learn the alphabet; in first grade she was tested and found to have learning disabilities related to reading and was subsequently placed in a special reading class and given accommodations on test; between fourth and eighth grade, she was provided with frequent afterschool instruction using the Orton-Billingham and Wilson reading programs; and she still uses many of the same tools she learned while working with her instructor utilizing those techniques in grade school. She also received accommodations through her high school years, both in school and with respect to standardized testing. Finally, I might add that the overwhelming majority of children with severe to profound hearing impairment upon completion of their mandatory school period, do not read above the fourth grade level when compared with their peers who are typically hearing. See, Godbey v. Iredell Memorial Hospital, Inc. 2013 U.S. Dist. LEXIS 117129, at *4 fn 4 (W.D. N.C. August 19, 2013). Accordingly, one is left with the conclusion that despite statutory provision to the contrary, Albertson’s might still be good law.
  2. Part of the problem is that there is no standard for determining the ameliorative effects of mitigating measures that a person develops that are not related to equipment or personnel. I would submit that the standard should be whether the trajectory changed and that such a standard should not need overwhelming evidence as to whether the person was substantially limited without the mitigating measures. The advantage of the trajectory change standard is that it should be relatively easy to prove up as contrasted to the standard that the court came up with here requiring an analysis of evidence prior to her receiving mitigating measures in fourth grade.
  3. An argument can be created that the plaintiff is certainly being penalized for having worked hard to develop her own successful mitigating measures and for being intelligent; neither of which is supposed to happen per the ADA.
  4. The court said that the National Board of Osteopathic Medical Examiners should not take the decision as a license to deny accommodation to individuals with a history of accommodations and a dyslexia diagnosis from childhood. However, one wonders if this case will not give NBOME encouragement to do that anyway. One also wonders, whether this case won’t give testing entities encouragement to ignore the LSAT settlement, which I discussed here, as the plaintiff here had a long record of receiving accommodations for standardized testing.
  5. If plaintiff fails to file an appeal, not only does she lose the chance for accommodation for standardized testing, one wonders if the University she is at will not take away her accommodations.
  6. The problem I have with this case is its theoretical construct with its focus on substantial limitation. As the EEOC and the DOJ say, whether a person is substantially limited should not generally require a great deal of analysis, and a great deal of analysis is exactly what happened here. Also, objectively speaking, it is pretty obvious that her trajectory changed as a result of the mitigating measures she developed on her own. That said, I would have been more pleased with the theoretical construct of saying that this person had a disability but a question of fact exists as to the affirmative defense of whether allowing the accommodations would fundamentally alter the nature of the test.
  7. While litigation over substantial limitation has gone way down since the amendments to the ADA, you do see it coming up occasionally, such as in this case (considering the dueling experts, getting the case to this point had to be extremely expensive).
  8. If a plaintiff needs accommodations on a standardized test, not seeking them may be used against them later should they subsequently seek reasonable accommodations.
  9. The focus on Woodcock-Johnson may be problematic. I am aware that learning disability specialists have varying views of this test and what it might mean for a particular individual.

Is an Underlying Condition Required for Obesity Being Protected under the ADA?

The labor and employment blogosphere, see this excellent blog entry of Robin Shea and another excellent, and always provocative, blog entry from Richard Hunt for examples, have been talking about a recent case from the Eighth Circuit holding that obesity by itself is not a disability under the ADA. Normally, if a bunch of people are blogging on a case, I tend to hold off blogging on it myself. However, if I think I can offer a different perspective, I will blog on it anyway and so here goes. Before proceeding further, I blogged on obesity once before here, where I explored a European Union case from a couple years back, which held that obesity by itself cannot be a disability. The case of the week agrees with that approach in that obesity by itself without an underlying impairment cannot be a disability. As is typical with my blog entries, I have divided the blog into categories: facts, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

 

Morris applied for a machinist position with BNSF in March 2011, and was extended a conditional offer of employment. Since the position was safety sensitive, the offer of employment was contingent on a satisfactory medical review. He completed BNSF’s medical questionnaire and reported that he was 5’10” tall and weighed 270 pounds, that he had once been diagnosed as pre-diabetic but was not currently diabetic, that he had taken appetite suppressant medication to lose weight but not to address any health concerns, that he considered his overall health good, and that he experienced no difficulties or limitations in his daily activities. In response to a request for additional information concerning his possible history of diabetes, his doctor submitted treatment records for the first three months of 2011, which did not reflect a current diagnosis of diabetes or any symptoms of diabetes. Since BNSF’s policy was not to hire a new applicant for a safety sensitive position if a person’s BMI equaled or exceeded 40, they notified him by email that he would not currently qualify for the safety sensitive machinist position due to significant health and safety risk associated with class III obesity (A BMI of 40 or greater) and revoked the conditional offer of employment. He sued alleging both actual disability as well as regarded as disability. In particular, the District Court noted that the plaintiff had unequivocally denied suffering from any medical impairment or condition on the medical questionnaire, had described his health as good, and had disclosed no difficulties or limitations in his daily activities. Instead, he stated that he did not believe he had a physical disability, that he was not aware of any underlying condition contributing to his obesity or to his inability to lose weight, and that his weight caused no physical limitations. Accordingly, summary judgment was appropriate on the actual disability claim. The court also said that because BNSF acted only on its assessment of the plaintiff’s predisposition to develop an illness or disease in the future, it did not regard him as having a disability under the ADA, and therefore, granted summary judgment on the regarded as claim as well.

II

Court’s Reasoning

In holding that there must be an underlying impairment for a person with obesity to be protected under the ADA, the court reasoned as follows:

  1. The ADA does not define physical impairment. However, the amendments to the ADA specifically gave regulatory bodies the right to issue regulations implementing definitional terms. The EEOC defined disability, at 29 C.F.R. § 1630.2 (h)(1), as, “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.”
  2. There is an EEOC interpretive guidance referring to weight stating that the term impairment does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within normal range and are not the result of a physiological disorder. The plain reading of this interpretive guidance is that an individual’s weight is generally a physical characteristic qualifying as a physical impairment only if it falls outside the normal range AND it occurs as a result of a physiological disorder. Such a reading is supported by the EEOC’s treatment in another interpretive guidance dealing with height, weight, muscle tone, and other conditions where they specifically note that they are not impairments unless they are the result of an underlying physiological disorder.
  3. Both the Sixth Circuit and the Second Circuit have reached the same conclusion.
  4. The court did reference a case from 1993, Cook v. State of Rhode Island, Department of Mental Health, Mental Retardation and Hospitals which I always mention in my book, where the First Circuit held that morbid obesity could be a disability, but the First Circuit in deciding so, specifically noted that there was evidence of an underlying physiological impairment in that case.
  5. While it is true, that the amendments to the ADA make clear that the definition of substantial limitation on a major life activity construed by the courts and the EEOC did not go far enough, Congress did not express any disagreement with judicial interpretations of the term “physical impairment.”
  6. In an appendix to the regulations, the EEOC noted that with respect to 29 C.F.R. § 1630.2 (h), Congress expects that the current regulatory definition of physical impairment as promulgated by the EEOC was not going to change.
  7. While the amendments to the ADA may have a broad policy goal of expanding the disability universe, that policy goal is constrained by language limiting such coverage to the extent permitted by the terms of the ADA. Both the ADA, the EEOC regulations, and the interpretive guidance say that a physical impairment must be the result of an underlying physiological disorder or condition. Therefore, the general policy statement of the amendment to the ADA cannot trump such language.
  8. The argument of the EEOC that whether a person has a disability under the ADA should not demand extensive analysis does not apply either because the extensive analysis piece is focused on whether a person is substantially limited in a major life activity. A person claiming disability protection must before that allege a physical or mental impairment first.
  9. Even if you assume morbid obesity is a protected disability, the plaintiff was not morbidly obese. The plaintiff would have to weigh 400 pounds for that to be the case.
  10. The position taken by the EEOC in the litigation is contradictory to its own regulations and interpretive guidances, and is therefore not entitled to deference.
  11. The EEOC does note in its compliance manual that severe obesity, body weight more than 100% of the norm, morbid obesity), is an impairment. However, the plaintiff was not morbidly obese. Also, this pronouncement in the compliance manual explicitly contradicts the plain language of the ADA as well as the EEOC’s own regulations and interpretive guidance, all of which define a physical impairment as requiring an underlying physiological disorder or condition.
  12. The argument that BNSF perceived the plaintiff as having a current physical impairment because of the refusal to hire him on the ground that he presented an unacceptably high risk of developing certain medical conditions in the future, does not apply because the ADA prohibits an employer from discriminating against an individual on the basis of a presently existing physical impairment as defined by the ADA. The ADA does not prohibit an employer from acting on some other basis, such as on its assessment that although no physical impairment currently exists, an unacceptable risk of a future physical impairment does. That is, the ADA does not prohibit discrimination based on a perception that a physical characteristic as opposed to a physical impairment may eventually lead to a physical impairment as defined by the ADA.
  13. The EEOC’s own interpretive guidance specifically states that the definition of impairment does not include characteristics predisposing a person to illness or disease.

III

Takeaways:

  1. This decision pretty much torpedoes the ability to use obesity as a protected disability under the ADA.
  2. The decision seems pretty well reasoned, and so I would not suggest an appeal to the United States Supreme Court. In addition to that, people with obesity suffer from severe stigmas and that would make only prevailing at the Supreme Court even more difficult considering the thoroughness of the reasoning in this case.
  3. This case applies to morbid obesity as well.
  4. So, if a person is obese, morbid or otherwise (it is becoming more more of a problem in American society), do they have a disability claim? This case makes a regarded as claim difficult. As far as an actual disability claim, it would not be unheard of (please note I am most emphatically NOT saying always), for a person with obesity to have underlying MH issues, such as anxiety or depression. In that situation, a perceived disability case would still be difficult because you would have to show that it wasn’t the obesity that was perceived but rather an underlying MH issue. If there is an underlying MH issue, the actual disability approach might be the stronger approach.
  5. Paragraph 4 of the Takeaways section lead to another issue. That of direct threat. Direct threat, which originates in this U.S. Supreme Court case and can be found in the ADA implementing regulations at 29 C.F.R. § 1630.2(r), says that a person with a disability is not protected by the ADA if they are a direct threat to themselves or others. However, per a different U.S. Supreme Court case, in order for a person to be a direct threat, the employer’s decision must be based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Further, that assessment must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. Note though that for direct threat to apply, the person must have a disability in the first place. Therefore, forcing an employer to argue direct threat if you have obesity without an underlying condition won’t work. However, if you have obesity and an underlying condition, such as an MH condition, if the MH condition is disclosed, the direct threat defense would then apply. So, on a policy level, this decision may actually have the positive effect of increasing the possibilities of whether people get assessed for MH issues, again assuming that such an MH issue is present in the first place which may or may not be the case, and that those MH issues are brought into the open in the workplace.
  6. It is true that the ADA focuses on present physical or mental conditions. For those conditions that may happen in the future, you want to look at the Genetic Information Nondiscrimination Act.