Salome Heyward & Associates
Conference Services
Clinicals, Internships
Special Admissions
Programs
April 21 - 22, 2014
Presented by
Salome Heyward, JD
SH&A April 2014
Key Compliance Issues
Academic knowledge to workplace
performance
Making Qualified Status Determinations
Enforcing Technical/Professional
Standards
Addressing Unsafe or Inappropriate
Student Behavior
Avoiding Discriminatory Treatment
SH&A April 2014
Academic Knowledge to Workplace
Performance
Requirements must be “educationally
rationally justified…” and involve a
reasoned and informed process reflecting:
 A group of people who are trained
knowledgeable and experienced;
 Rational and careful review of program
requirements;
 Consideration of pertinent alternatives;
and
SH&A April 2014
Academic Knowledge to Workplace
Performance (cont.)
 Necessary program objectives
Special care should be taken with physical
capability and proficiency standards
Licensure requirements alone are not
sufficient (in most instances)
SH&A April 2014
Making Qualified Status
Determinations
There must be an individualized assessment
that includes consideration of:
1. The student’s functional limitations and the
relevant impact on his/her ability to
participate or perform
2. The essential elements and requirements of
the program, course of study or activity
3. The impact the requested
accommodation(s) would have on the
educational program, as well as on the
student
SH&A April 2014
Making Qualified Status
Determinations (cont.)
 Academic success does not equal
entitlement to site placement
 When is the decision entitled to deference
 Avoiding categorical denials
 The lessons of Southeastern Community
College v. Davis
 The responsibility to disclose the disability
to site officials
SH&A April 2014
Enforcing Technical/Professional
Standards
Performance of necessary job related skills
The standards of a profession are important
Implementing proper accommodation
procedures:
 An individualized assessment;
 Full exploration of accommodation options;
and
 Engaging in a fair and objective dialog with
the student
SH&A April 2014
Enforcing Technical/Professional
Standards (cont.)
Responding to requests for waiver or
modification of requirements
Establishing that instructional goals and
clinical experiences are supportive of
program objectives
Legitimate non-discriminatory reasons for
different treatment
SH&A April 2014
Enforcing Technical/Professional
Standards (cont.)
Adverse determinations:
 A fundamental alteration or undue
burden/hardship;
 The student’s failure is unrelated to his/her
disability;
 The requested accommodation is not
tailored to meet the student’s identified
need; or
 The student is not qualified
SH&A April 2014
Unsafe or Inappropriate Student
Behavior
Two applicable standards: direct threat situations
and health and safety concerns relative to
placement assignments
Direct Threat Situations:
Evidence of a “significant risk to the health and
safety of others…” established by:
a. reasonable medical judgment that relies on the most
current medical knowledge and/or
b. the best available objective evidence (actions or
statements of the individual; a past pattern of conduct
or occurrences, etc…)
SH&A April 2014
Unsafe or Inappropriate Student
Behavior (cont.)
Direct Threat Situations (cont.)
Conduct an individualized assessment to
determine:
a. the nature, duration, severity and probability
of the potential risk or danger
b. whether consideration of all relevant
evidence establishes that there is a high
probability of a “substantial harm”
c. the threat can be eliminated by provision of
a reasonable accommodation
SH&A April 2014
Unsafe or Inappropriate Student
Behavior (cont.)
Direct Threat Situations (cont.)
Policies and procedures should ensure that:
a. Knowledgeable experts are involved in the
determination
b. All relevant and pertinent information is
considered
c. Due process is provided to the individual
including notice of the reason for the
decision, a right to challenge the decision or
offer facts to refute it and an opportunity to
appeal
SH&A April 2014
Unsafe or Inappropriate Student
Behavior (cont.)
Health or safety concerns in a clinical,
internship or other placement
assignment:
Action may be taken if a student’s conduct
or behavior “has the reasonably foreseeable
potential to cause harm to clients.”
There need only be a “valid basis” for the
belief or “reasonable concern” that the
behavior is potentially harmful
SH&A April 2014
Unsafe or Inappropriate Student
Behavior (cont.)
Health and safety concerns (cont.):
The behavior need not be in the placement
environment
The institution is required:
 To present actual, concrete evidence of
inappropriate behavior
 Provide notice to the student of the
standards violated
SH&A April 2014
Unsafe or Inappropriate Student
Behavior (cont.)
Health and safety concerns (cont.)
 Present the basis for the belief that she/he
can not meet the standard
 Provide the student a reasonable
opportunity to modify her/his behavior in
compliance with the standard
SH&A April 2014
The Role of Faculty in the
Accommodation Process
 Faculty members do not have the right to unilaterally
determine whether a student has a disability and/or
should be accommodated. Institutions are obligated to
take action when students are denied approved
accommodations by faculty.
 Faculty members are not entitled to impose additional
requirements for receipt of academic adjustments,
auxiliary aids and services, or to modify the conditions
under which they will be provided once they have been
designed and approved by the office designated to make
such determinations.
SH&A April 2014
The Role of Faculty in the
Accommodation Process (cont.)
 Issues or objections regarding academic
adjustments, auxiliary aids and services should be
raised with disability service providers and/or other
administrators and not students.
 Compliance with institutional accommodation
procedures and policies is a two way street.
 Accommodation controversies: Tape recording,
testing, and access to faculty members’ notes.
 Institutions are obligated to address behaviors or
attitudes of faculty members that interfere with or
adversely impact the participation of students with
disabilities.
SH&A April 2014
The Role of Faculty in the
Accommodation Process (cont.)
 Institutions are obligated to train faculty concerning
their responsibility and role in the accommodation
process and to support their efforts to provide access
to students with disabilities. This includes providing
guidance concerning the manifestations or specific
disabilities and proper manner to interact with
students.
 Faculty behavior, no matter how negative or offensive,
that does not substantially restrict a student’s access
to or enjoyment of the educational program or
activities or does not significantly disadvantage the
student will not be considered a violation of Section
504 or the ADA.
SH&A April 2014
The Role of Faculty in the
Accommodation Process (cont.)
 Student charges of harassment must be
responded to promptly, investigated
thoroughly, and any remedial action must
be “tailored to stop the harassment,
eliminate the hostile environment…, and
address the problems experienced by the
student”.
SH&A April 2014
Avoiding Discriminatory Treatment
 Disparate treatment based upon the existence of
a disability;
 Denial of opportunities in response to the need
for particular accommodations;
 Failure to provide “effective” accommodations;
 Failure to modify requirements or standards that
are not “essential” program objectives; and/or
 Not addressing inappropriate or discriminatory
behavior of placement supervisors
SH&A April 2014