Why can’t more guidances be like this one?

I’m not a big fan of guidances for several reasons: I find that lawyers rely on them as a crutch unnecessarily in many cases; the guidances oftentimes push an agenda and are not based on case law or regulations; as guidances they are not regulations and so therefore are subject to being ignored by the courts; and are frequently unnecessary, though not always so. However, none of these statements apply to the recent joint guidance from the US Department of Justice and the US Department of Education on effective communication. I find that the guidance is extremely easy to read, is a fair interpretation of the law, extremely practical, and contains a lot of useful information. This particular blog entry will go over that guidance.

I have previously discussed the effective communication regulation, including here here and here.

The Guidance

1. The guidance does a nice job of explaining that k-12 school need to worry about three different laws: IDEA, ADA, and § 504 of the Rehabilitation Act, and notes that the requirements of each are not the same necessarily.

2. The guidance does say that as a general rule violations of § 504 the Rehabilitation Act also constitute violations of title II and therefore, it didn’t make any sense to discuss § 504 protection separately as it would not provide additional guidance to public schools, all of which are subject to both laws. That is absolutely true. However, it should be pointed out that a violation of the ADA is not necessarily a violation of § 504 the Rehabilitation Act because the causation standard is different between the two laws.

3. Title II of the ADA and its implementing regulations require that a public school ensure that communication with students with hearing, vision, or speech disability is as effective as communication with students without disabilities. That means schools must provide appropriate auxiliary aids and services (what is an auxiliary aid and service can be found at 42 U.S.C. § 12103(1) as well is in the implementing regulations), where necessary in order to provide effective communication.

4. The effective communication regulation requires that public schools give primary consideration to the auxiliary aid or service requested by the student with a disability when determining what is appropriate for that student because it is the person with a disability, or his or her appropriate family member, who is most familiar with his or her disability and can provide the best information about which aids or services are most effective. Further, the school has to honor the choice unless the school can prove that an alternative auxiliary aid or service provides communication that is as effective as that provided to students without disabilities.

5. If providing the particular auxiliary aid or service constitutes a fundamental alteration in the nature of the service, program, or activity or is an undue financial or administrative burden, the school did not have to provide that of auxiliary aid or service, but they still have to provide, to the maximum extent possible, an effective auxiliary aid or service.

6. Interpreters for the deaf must be qualified and any such communication must be conveyed effectively, accurately, and impartially, using any appropriate specialized vocabulary.

7. It is very interesting that when the guidance talks about how a person who is deaf or hard of hearing may or may not use ASL, that hearing aids aren’t even mentioned. Rather, cochlear implants are mentioned. Cochlear implants are not a substitute for hearing aids. They are used in different situations. Nevertheless, it shows just how prevalent cochlear implants have become.

8. Auxiliary aids or services have to be decided on a case-by-case basis. That is, don’t put people with the same kind of disability in the same box as they may go about their world completely differently.

9. The effective communication regulations of title II apply to all of a student’s school -related communications and not just to those of teachers or school personnel.

10. For a deaf or hard of hearing student, a sign language interpreter or computer-assisted real-time (CART) may be appropriate where student comments and discussions are part of the class experience for all students. This is going to come down to a matter of choice by the particular student. ASL interpreters and CART do different things. ASL is a language just like French is a language. CART, which I had the privilege of using at a recent American Bar Association convention, essentially acts as a real-time transcript of what is going on. If the class is one where people are constantly talking and oftentimes at once, CART could be extremely helpful in addition to or in lieu of an ASL interpreter. An ASL interpreter is simply not going to be able to keep up with the different conversations but CART can. Thus, in this situation, the school is going to have to assess with the particular student whether one or the other or both should be employed.

11. Any auxiliary aids and services necessary to ensure effective communication have to meet several requirements. They have to be provided in an accessible format, in a timely manner, and in such a way as to protect the privacy and independence of a student with a disability.

A. With respect to accessible format, just because a student is blind does not mean that they know how to read braille (you would be surprised how many blind students do not read braille). Therefore, supplying materials in braille would be no good for that student.

B. With respect to timely manner, once the student indicates the need for an auxiliary aid or service or requested a particular auxiliary aid or service, the public school must provide it as soon as possible.

C. The auxiliary aid or service has to be provided in a way that protects the privacy and independence of the student with a disability. The example used in the guidance is a bit unfortunate. The example used is someone who is deaf and uses ASL should have their conversation containing sensitive information conducted privately where other people in the environment understand ASL. Here is the problem with that. Of the kids who are deaf, it is frequently reported that 90% of them have hearing parents. Also, it is frequently reported that 90% of deaf parents have hearing kids. Thus, it is entirely possible that there may be a hearing person in the classroom that knows ASL and that fact may or may not be known to the school. The auxiliary aid or service must also be provided in a way that the tax the independence of the student. For example, an e-book might foster more independence than a reading aide.

12. Should a school district try to defend on the ground that the auxiliary aid or service is a fundamental alteration or constitute an undue financial or administrative burden after considering all resources available for use by the school district in the funding and operation of the service, program, or activity, the head of the school district or his or her designee must make that determination (you can find the certification requirement discussed here. With respect to whether the school district had could delegate the decision regarding the undue burden certification to a designee, that designee would have to be a person with the authority to make budgetary and spending decisions and must have the knowledge necessary to consider all resources available to the school district for use in the funding and operation of the service, program, or activity.

13. The effective communication obligations are not limited just to students. Rather, schools have the obligation to provide effective communication to all individuals seeking to participate in or benefit from the school district’s services, program, or activities.

14. Title II of the ADA regulations expressly prohibit a public school from requiring an individual with a disability to bring another person to interpret for him or her except in the case of an emergency involving an imminent threat to the safety or welfare of the individual or to the public where there is no interpreter available or where the person with a hearing, vision, or speak disability specifically make the request that an accompanying adult may interpret or facilitate communication providing the accompanying adult voluntarily agrees to provide the assistance and providing the school’s reliance on the accompanying adult is appropriate under the circumstances. Regarding the second exception, careful consideration to both elements is called for. The school wants to make sure that the consent of the adult it truly voluntary. Second, the school wants to make sure that relying on the accompanying adult is appropriate under the circumstances. It may not always be. For example, it would not be appropriate to rely on the adult if the situation was a due process hearing, § 504 planning meeting, meeting of the IEP team, etc. Some may be close calls. For example, certain information may be so critical so that it is essential that any errors be minimized, such as a medical emergency.

15. Unlike the Americans with Disabilities Act, IDEA does not require a district to ensure that the effectiveness of communication for student with a disability matches the effectiveness of communication for students without disabilities.

16. The provision of a free appropriate public education under IDEA does not limit a student’s right to effective communications under the ADA. Also, to be protected under title II and to utilize the effective communication regulations of that title, does not require eligibility under IDEA.

17. A best practice is for a district to proactively notify parents and students about the effective communication regulations under title II and let the students and parent know just whom that official is. As pointed out in the guidance, it makes sense that the responsibility could, though it doesn’t have to be, given to the § 504 or ADA coordinator.

18. Parents do not have to make a specific request for different or additional auxiliary aids. Rather, the school district has the affirmative obligation to provide effective communication regardless of whether the parent request specific auxiliary aids and services.

19. School districts have a continuing obligation to assess auxiliary aids and services that it is providing the students in need of those services in order to ensure that those students are receiving effective communication.

20. If a student is IDEA eligible, a school district can also decide that a parent’s request under title II will be addressed by the IEP team. However, while that may be the case, the IEP team would not be making the determination based upon whether the auxiliary aids and services were reasonably calculated to enable the child to receive meaningful educational benefit. Instead, they would have to make the decision based upon the effective communication regulations under title II, an entirely different question since it demands that communications be as effective as those for without disabilities. This means that the IEP team has to receive training on the effective communication regulations.

21. A school district cannot wait for the IEP process to run its course before providing necessary auxiliary aids and services.

22. Guidance points out that if a person has an IEP, they must exhaust that process first before proceeding to a lawsuit alleging violations of the ADA or § 504. You can find more of that discussion here.

23. IDEA funds may be used only for auxiliary aids and services under title II where those auxiliary aids and services are also required to be provided under IDEA. If auxiliary aids and services under title II are not included in the IEP, then IDEA funds may not be used to pay for those services. Here is my concern with that. Since money drives everything, the concern is that school districts will push students with disabilities into the IDEA system. That decision has significant legal and day-to-day implications and should not be done lightly.

In summary, for those familiar with the effective communication regulations, there isn’t anything that is surprising here. What it does do is reiterate that school systems need to be aware that their universe is more than just IDEA but also includes ADA and § 504. Whether the regulation create the incentive of pushing people into the special education system when that is not necessary is something that should be followed.

Do places of higher education with training programs and technical standards now have permission to freely discriminate against persons with disabilities?

In one of my most popular blog entries, ADA compliance auditing: higher education version, I mention technical standards in a comment to that entry. Many training programs as a condition of accreditation have developed technical standards that people in the program must meet in order to get into the program and stay into the program. My experience is that the standards are frequently written and/or interpreted in a way that screens out persons with disabilities in possible violation of the screen out provisions of the ADA. For those programs that have such technical standards, those standards can be rewritten, with expert help of an attorney knowledgeable in the area, so that the technical standards do not unnecessarily screen out persons with disabilities. Getting to that point means the attorney interfacing with the subject matter experts to make sure that the essential eligibility requirements of what the program is trying to accomplish are satisfied while simultaneously crafting the technical standards so that they do not unnecessarily screen out persons with disabilities. One of the approaches that the attorney may take is to make sure that the technical standards focus on the requirements meant to be accomplished and not on the various ways that the requirement could be accomplished.

All this said, what happens if you do have a technical standard that screens out persons with disabilities and it is challenged? A case that answers this question is McCulley v. The University of Kansas School of Medicine, an unpublished decision from the 10th Circuit. As is my usual practice, I have divided the blog entry into different categories: Facts; Court’s Reasoning; and Takeaways. The reader is free to concentrate on any or all of the sections.

I
Facts:

In this case, the plaintiff suffered from type III spinal muscular atrophy, which necessitated the use of a wheelchair for mobility and limited her arm strength. In 2011, she was admitted to the medical school. One of the technical standards for the medical school was that a student must be physically able to carry out diagnostic procedures and provide general care and emergency treatment to patients including CPR, opening affected airways and obstetrical maneuvers. Shortly after being admitted to the medical school, the medical school sent the plaintiff a form asking her to describe the accommodations she might need. That led to a period of discussion between the plaintiff and the school. In July of 2012, she completed the form indicating that she would need a staff person to assist her with lifting and positioning patients, stabilizing elderly patients, and performing basic life support. After reviewing the requested accommodation, the interim dean of the medical school concluded that the plaintiff could not meet the motor technical standard and rescinded her admission. She of course sued alleging violations of the ADA and the Rehabilitation Act. When the District Court granted summary judgment to the medical school, she appealed to the 10th Circuit, which affirmed the District Court’s grant of summary judgment.

II
Court’s Reasoning

1. Having a staff member interact with patients on the plaintiff’s behalf would fundamentally alter the nature of her medical education, which trains her to engage with patients, often in emergency situations where assistance is unavailable. To my mind, the analogy would be to title I of the ADA where it is not a reasonable accommodation to hire someone to do the essential functions of the job of another.

2. The motor technical standards are related to the medical school’s accreditation.

3. Although the plaintiff does not intend to pursue a physically demanding specialty, she must nevertheless meet the motor technical standards because the medical school uses a broad, undifferentiated medical curriculum that prepares students to serve as physicians in a wide range of practice areas.

4. The critical procedures that the plaintiff seeks to have staff members perform on her behalf are required as part of the United States medical licensure examination.

III
Takeaways:

1. The decision is unpublished and so it’s precedential value may be debatable. Check your local rules on that.

2. In the final section of the opinion, the 10th Circuit states that the disposition should not be read as holding the medical school cannot reasonably admit the plaintiff or other students with similar disabilities. If this unpublished decision is adopted across the Circuits, it may lead to precisely that. The critical question is whether the purpose of a medical curriculum is to prepare students to serve as physicians in a wide range of practice areas. Or, is it more accurate to say that the purpose of a medical curriculum is to enable the student to truly understand what it means to serve as physicians in a wide range of practice areas. Certainly, if you are on the plaintiff’s side, that is the approach you would have to take. On the other hand, if you on the defense side, you certainly want to argue that a medical curriculum’s purpose is to prepare students to serve as physicians in a wide range of practice areas.

3. Look for the technical standards even where they screen out persons with disabilities and are written to do so when they don’t have to be, to be defended on the grounds that the technical standards are related to accreditation. The response to that argument is that the technical standards may be related to accreditation, but that does not mean the technical standards have to be written in such a way so as to unnecessarily screen out persons with disabilities. As a preventive measure, a knowledgeable attorney should work with the program to determine precisely what are the essential eligibility requirements of the program and what are the specific purposes that the program is trying to accomplish with that particular technical standard. Staying away from how the task is being accomplished and focusing on what should be accomplished, will go a long way towards making that technical standard one likely to be successfully defended against a challenge. After doing all that, it is possible that the standard will still discriminate against some people with disabilities, but at least then the school can be fairly confident that the technical standard as written is essential to the fundamental nature of the program. Certainly, from the school’s perspective, if a particular technical standard is required so as to be able to accomplish the United States medical licensure examination, that would suggest that the standard may be fundamental.

4. The risk of this decision is that it may lead to confusion that a professional school should be thinking about whether that particular student can actually perform the essential functions of a doctor, lawyer, nurse, etc. upon graduation while ignoring the fact that it is their medical school or professional training school that has independent obligation to persons with disabilities under either title II or title III. Whether the person can perform the essential functions of the job that he or she is training for, is a question for that person’s employer and falls under title I of the ADA. Also, it is entirely possible that the student had no intention of practicing that profession at all, but rather wants to use that knowledge in a related way. Certainly, this decision supports some blurring of the lines, but I would suggest being careful about completely blurring the lines between the educational curriculum and the job that the person training for.

A triple play: does title you sue under with respect to a retaliation claim depend upon subject or context; compliance expert testimony in ADA cases; and catspaw

This particular blog entry deals with three different topics all contained within the same case. The case is Powell v. Valdosta City School District, 2014 U.S. Dist. LEXIS 157158 (M.D. GA November 6, 2014). As is my usual, I have divided the blog entries into categories: facts, issues, holdings, court’s reasoning, and takeaways. The reader is free to focus on any or all of the sections.
I
Facts

In this particular case, the facts are relatively straightforward. In essence, the plaintiff was a special education teacher and reported abuse and neglect of several students. She was retaliated against for doing so and continued to make those reports for which she suffered further retaliation. Eventually, her contract was not renewed and she brought retaliation claim alleging violation of title II of the ADA, § 504 the Rehabilitation Act, and violation of the Georgia Whistleblower Act. As part of her suit, she sought to bring in expert testimony to explain that the school did not engage in proper practices with respect to evaluating her prior to the nonrenewal of her contract. Also, at no time prior to the nonrenewal determination, did the superintendent conduct his own investigation regarding whether the contract should be not renewed.

II
Issues

1. Does the plaintiff have a suit under title II of the ADA rather than title I of the ADA?

2. Is the expert testimony something that can come in under Daubert?

3. Can the school district be liable for the retaliation as a result of applying the cats paw theory?

III
Holdings:

1. Plaintiff does have a title II suit.

2. Yes

3. Yes

IV
Court’s Reasoning

1. Since the plaintiff alleged that she suffered retaliation for demanding that equal access to public services be afforded to her students with disabilities (that is, she reported suspected abuse and neglect to protect their welfare), the plaintiff’s claim falls under title II of the ADA. This statement has two important ramifications. First, in the 11th Circuit, individual defendants may be liable for retaliation. Second, a person bringing a title II of the ADA suit is not required to exhaust administrative remedies before filing suit.

I find this very interesting. In essence, what this means is that whether a title I or title II suit is the proper title to sue under depends upon the subject and not upon the context. That is, this particular plaintiff was an employee and was retaliated against because of actions she took while an employee. However, the subject matter of the suit involved title II matters. Therefore, if this case holds up, an employee working for a public entity that is retaliated against may be able to forgo a title I suit and proceed under title II instead depending upon the subject matter of the suit. It is going to be very interesting to see whether this kind of reasoning holds up on appeal, assuming case is appealed, or is adopted by other courts.

2. The superintendent had the ultimate authority for deciding whether to submit plaintiff’s name for approval by the Board of Education, which was a precondition for renewing her contract. The records showed that the superintendent did nothing to verify the information provided to him by the administrators at the elementary school. He never undertook an observation of the plaintiff in the classroom nor did he speak with her about her reports of child abuse or her interaction with administrators. Since the superintendent did not independently investigate and confirm the criticisms of the plaintiff, the nonrenewal decision was tainted by the people who recommended the nonrenewal action and therefore, the jury could reasonably conclude that the superintendent was nothing more than a cats paw (the cats paw theory comes from title VII cases where an employer can be held liable for retaliation even where the ultimate decision-maker had no retaliatory motives if the decision-maker was only following the biased recommendation without independently investigating the complaint against the employee).

3. The expert testimony comes in because the expert satisfied the standards of Daubert v. Merrell Dow Pharmaceuticals Inc.
Under that case, whether expert testimony can come in depends upon: 1) whether the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 2) the testimony is based upon sufficient facts or data; 3) the testimony is the product of reliable principles and methods; and 4) the expert has reliably applied the principles and methods to the facts of the case. In particular:

A. The expert would have testified: 1) the distinct demands of special education dictated how plaintiff taught her students, who varied in their abilities and ages; 2) the elementary school administrators did not properly administer observations of the plaintiff because they were not familiar with the students IEP or challenges created by their particular needs. That is, a special education teacher needs to be evaluated in terms of the progress of her students with respect to their IEP’s and the plaintiff’s students demonstrated progress; 3) the needs improvement ratings assigned to the plaintiff were based upon expectation for how a class with nondisabled students functioned, rather than a special education class like the plaintiff’s; 4) plaintiff seemed to understand her job duties and the needs of her students, that they made progress under her teaching, and that she was a strong advocate for the needs of her students.

B. The expert was qualified to offer the opinions. In particular, she had an undergraduate, Masters, and doctorate degrees in education. She also for over 20 years had served as a private educational consultant providing training and evaluation to teachers and administrators on various topics including differentiated instruction, instructional modification for general classroom teachers, special education, teaching and learning strategy, special education transition services, and IEP development. She also taught courses in special education at multiple universities and spent 10 years as a consultant for the Georgia Department of Education in areas such as policy development and implementation, state and federal regulation, monitoring, and creation of training manuals. Finally, she was responsible for developing the IEP resource guide for the Georgia Department of Education and had published and given presentations on teacher assessment, teacher training, and special education.

C. The court found her opinion to be reliable as they were based upon internal inconsistencies in how the elementary school administrators assessed the teacher’s strength and weaknesses, testimony of what was actually occurring in the classroom during the observations, testimony from the administrators, and documents in the record.

D. With respect to scientific method, expert testimony may be reliable if it is based upon education, experience, or training. If an expert witness primarily basis her opinions on experience, then she must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, how the experience is reliably applied to the facts. This portion of the Daubert standard is satisfied because her opinions were similar in content, approach and scope with opinions or training or consulting that she would give to school districts or in instruction when teaching classes or workshops.

E. The testimony would assist the jury in trying the facts of the case. While it is true that the ultimate question is whether retaliation occurred, that does not mean it is irrelevant as to how the evaluation tools were implemented, how the defendant may have ignored the clear guidelines of the school district’s evaluation policy and whether plaintiff’s students showed progress in their IEP’s. That kind of testimony would not establish that retaliation occurred, but would go a ways towards showing that the defendants created incompetence to cover their retaliation. Further, the particular topics do not come within the average layperson’s knowledge. Finally, the concern that the jury might be misled into thinking that plaintiff has proven a case simply by convincing the jury that her conclusions are true does not win out because the jury’s own common sense and clear instruction from the court should dispel that threat.

V
Takeaways:

1. In the 11th circuit, an individual can be liable for retaliation. While it is perfectly true, that there are numerous cases out there saying that an individual cannot be held liable for violations of title I or title II of the ADA, that is not the same as saying that an individual cannot be held liable for retaliation. It is also true, as we have discussed here, that a person may not be able to get legal remedies with respect to a retaliation claim arising under the ADA, but that is not the same thing, as the 11th Circuit notes, as to who the remedies apply to.

2. Whenever an ultimate decision-maker gets ready to take adverse action, it is important to have the facts independently confirmed before doing so unless you want to run the risk of cats paw liability.

3. This case is a very interesting use of a compliance expert in an ADA matter. Considering how complicated the ADA is, I have always been surprised at to why it doesn’t happen more often (full disclosure: I have served in the past as a compliance expert witness and or consulting ADA compliance expert in ADA cases). In this particular case, the expert wasn’t testifying as to whether the retaliation occurred, but rather was testifying as to whether the incompetence was created by the employer. It is a subtle but significant difference. Also, the scientific part of Daubert can be circumvented if the expert opinion is based upon their experience stemming from their considerable body of work. Finally, this court puts a fair amount of stock in the common sense of the jury and in the benefits of clear instructions from the court with respect to any confusion that may arise from the subtle distinction mentioned above. In short, this case is rather innovative in the way it used expert testimony, and it wouldn’t surprise me to see more of this in the future. Such use of experts would most certainly increase the cost of litigating ADA matters, but one wonders if it would not also make for better accuracy with respect to resolution of ADA matters.