Determining Commonly Requested
Accommodations: Applying Best
Practices to Complex Cases in DecisionMaking
Association on Higher Education and Disability
July 14, 2011
Manju Banerjee, Ph.D.
Associate Director
Center for Students with Disabilities
University of Connecticut
Manju.banerjee@uconn.edu
Loring Brinckerhoff, Ph.D.
Director
Office of Disability Policy
Educational Testing Service
lbrinckerhoff@ets.org
Session Objectives
Disability documentation review in light of ADA
Amendments Act (ADA AA)
Definitions, perspectives, and pragmatics - operational
and psychometric terminology in accommodation
decision-making
Mining disability documentation and applying best
practices for evidence supporting request for: (1)
extended time, (2) alternate media, and (3) note-takers
Banerjee & Brinckerhoff, July 2011
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Definition of Disability under the
Americans with Disabilities Act (ADA)
Statutory definition of “disability”:
(A) a physical or mental impairment that substantially
limits one or more major life activities;
(B) a record of such an impairment;
(C) being regarded as having such an impairment.
Source: http://www.ada.gov/pubs/adastatute08.htm
Under the ADA, a person must meet at least one of
these three criteria to be an individual with a disability.
Banerjee & Brinckerhoff, July 2011
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ADA
ADA Amendments Act (ADA AA)
• The Americans with Disabilities Act was passed in 1990; it
is a federal civil rights, non-discrimination statute.
• The ADA Amendments Act was signed into law on
September 25, 2008 and became effective January 1,
2009
• The ADA AA regulations were passed end of March and
became effective on May 24, 2011.
Banerjee & Brinckerhoff, July 2011
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ADA Enforcement
• The Office of Civil Rights (OCR) enforces both Section 504 and
Title II of ADA
• According to guidance provided by the U.S. Department of
Education (2006), institutions are not required to provide a
free appropriate public education (mandated for school age
children) but rather provide appropriate academic
adjustments or accommodations.
– These accommodations though will be considered only upon request
and are intended to ensure equal educational opportunity.
– Accommodations which lower or substantially change academic
requirements are not covered.
(Katsiyannis, A.; n.d.)
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ADA Amendments Act, 2008 (ADA AA)
 Provides an expanded definition of major life
activities, and a non-exhaustive list of bodily
functions
 States that mitigating measures other than
"ordinary eyeglasses or contact lenses" should
not be considered in assessing whether an
individual has a disability
 Clarifies that an impairment that is episodic or in
remission is a disability if it would substantially
limit a major life activity, when active
Banerjee & Brinckerhoff, July 2011
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ADA Amendments Act, 2008 (ADA AA)
 Proposes increased emphasis on precedence
and past history of accommodations and less
analysis of “disability status”
Directs EEOC to revise regulations defining the
term "substantially limits”
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Disability Documentation
Banerjee & Brinckerhoff, March 2011
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Why documentation review is complicated?
 Purpose of disability documentation between
secondary and postsecondary institutions is different
(Banerjee & Shaw, 2007; Gormley, Hughes, Block, &
Lendman, 2005; Gregg, 2007; Lendman, 2008)
 Documentation provided often does not meet
established guidelines; has missing or insufficient
evidence (Banerjee & Madaus, 2011 submission)
 Documentation provided is an IEP, 504 Plan, or
Summary of Performance (SOP)
Banerjee & Brinckerhoff, July 2011
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Why documentation review is complicated?
 Review process is varied across postsecondary
institutions; although, the primary task of review is
the same – i.e., to determine whether evidence
provided supports the diagnosis and recommended
accommodations (Lindstrom, 2007)
 Documentation review is influenced by reviewer
demographics (Madaus, Banerjee, & Hamblet, 2010)
 Lack of research (confirmatory factor analysis) to
determine underlying factors (processes/construct) for
specific tasks (Gregg, 2007); left with “face validity”
exercise in determining accommodations
Banerjee & Brinckerhoff, July 2011
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Terminology for Documentation Review
Disability
 Impairment that “substantially limits” one or more
major life activities.
 An impairment need not prevent or significantly or
severely restrict performance of a major life activity to be
“substantially limiting.”
 Disability “shall be construed in favor of broad
coverage” and “should not require extensive analysis.”
(NBME settlement, Feb 2011)
 An individual’s ability to perform a major life activity is
compared to “most people in the general population,”
often using a common-sense analysis without scientific or
medical evidence.
 An impairment need not substantially limit more than
one major life activity.
http://www.eeoc.gov/laws/regulations/adaaa-summary.cfm 11
Banerjee & Brinckerhoff, March 2011
Disability construed in favor of broad coverage
DOJ Court Settlement with NBME (Feb 2011)
 Yale medical student with dyslexia requested double
time and a separate room for medical exam
 DOJ found NBME made “demands unnecessary or
redundant, burdensome and expensive repeated
professional evaluations or irrelevant testing unrelated
to the ability to demonstrate one’s knowledge or skills”
Banerjee & Brinckerhoff, July 2011
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Disability construed in favor of broad coverage
Requirements put forth by DOJ to NBME:
 Must only request information about (a) existence of physical or
mental impairment; (b) where impairment substantially limits
one or more major life activities within meaning of the ADA;
and (c) whether and how impairment limits applicant’s ability to
take USMLE under standard conditions.
 Must carefully consider recommendations of qualified
professionals
 Must carefully consider all evidence indicating ability to read is
substantially limited with the meaning of the ADA, including
extent to which it is restricted as to the condition, manner or
duration compared to the reading ability of most people
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Terminology for Documentation Review
“Disability documentation is credible evidence
Disability
Documentation that attests to the existence of an impairment
that substantially limit one or more major life
activities, the impact of the impairment on
academic performance and related
competencies, and recommendations for equal
access and/or compensatory measures
commonly referred to as accommodations.”
(www.csd.uconn.edu)
http://www.csd.uconn.edu/docs/Disability_Do
cumentation_Fact_Sheet_.pdf
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Terminology for Documentation Review
Implications under the ADA AA
Disability
Documentation  ADA AA does not specify type of
documentation, but it cannot be burdensome
Universities and colleges can set their own
guidelines for disability documentation; they
do not have to accept IEP or SOP as disability
documentation
Perspectives and Pragmatics
It is helpful to have established internal
review criteria; regular staff training
workshops for documentation review
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EXAMPLE
ETS Documentation Review Criteria
Y
N Lim
N/A
1. Does the evaluator clearly indicate a disability that is
covered under the ADA?
2. Is the documentation sufficient to support the claimed
disability?
ETS DOCUMENTATION REVIEW CRITERIA
3. Is the evaluation current?
4. Does the evaluator appear to be qualified to make the
diagnosis?
5. Does the documentation include relevant educational,
developmental, and medical history?
6. Does the documentation include a list of tests
administered with all subtests and scores?
7. Is there an explanation of how the documentation
supports the need for each requested accommodation?
8. Is there a description of the functional limitations
resulting from the disability?
9. Is there a detailed explanation of why no prior
accommodations were given, but accommodations are
needed now?
Do not reproduce
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Terminology for Documentation Review
Documentation
Update
“A documentation update is a report by a
qualified professional that includes a
summary of the original disability
documentation findings, as well as,
additional evaluation data necessary to
establish the candidate’s current eligibility
and the appropriateness of the requested
testing accommodation(s).”
http://www.ets.org/disabilities/documentati
on/ld_adhd_update
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Terminology for Documentation Review
Documentation
Update
 Summarizes the original disability
documentation findings
 Provides current information about the
individual’s functional limitations
 Supports the continuing need for
accommodations in the present context
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Documentation Update (cont.)
(cont)
Psychoeducational Report
Documentation Update
1) Conducted in order to
establish or exclude the
existence of a disability
1) Typically, conducted
when documentation is
dated (per established
criteria) or has missing
information
2) Seeks to reaffirm the
diagnosis or diagnoses
2) Seeks to confirm a
diagnosis or diagnoses
3) Identifies functional
limitations associated with
the disability
3) Verifies the current
existence and continuing
impact of the functional
limitations
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Documentation Update (cont.)
(cont)
Psychoeducational Report
Documentation Update
4) Based on a
4) Based on selected sub“comprehensive” battery of tests
psychometric tests
5) Recommends
accommodations that
compensate for the
functional limitations
6) Recommends a generic
list of accommodations
5) Establishes history of
accommodations
6) Recommends
accommodations specific
to the situation and
establishes on going need
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Terminology for Documentation Review
Functional
Limitation (FL)
 Functional limitations are the result of or
manifestations due to the disability. It affects
the individual’s every day functioning and/or
performance in a given situation
http://professionals.collegeboard.com/testing/ssd/ap
plication/guide/limitations
By definition, limitation suggests a “gap” or
impairment
Banerjee & Brinckerhoff, July 2011
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Terminology for Documentation Review
Functional
Limitation (FL)
 The courts have recognized the DSM-IV as
a reference to what constitutes a mental
impairment.
 Not all conditions listed in the DSM-IV,
however, are disabilities, or even mental
impairments, for purposes of the ADA.
Even if a condition presents as a functional
limitation , it is not automatically a
"disability." To rise to the level of a
"disability," the FL must "substantially limit"
one or more major life activities.
http://www.eeoc.gov/policy/docs/psych.html
Banerjee & Brinckerhoff, July 2011
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Terminology for Documentation Review
Functional
Limitation (FL)
Implications under the ADA AA
 FL is educational terminology, not legal.
 FL operationalizes the phrase – mental or
physical impairment and includes traits,
behaviors, competencies, aptitudes ,abilities,
and skills that can be linked to the
impairment
Examples of FL include: Limitations in
intellectual ability/cognitive functioning;
executive functioning; information
processing; memory, concentration and
attention, social and/or affective abilities
Banerjee & Brinckerhoff, July 2011
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Terminology for Documentation Review
Substantially
Limiting
 Significantly restricted as to the condition,
manner, or duration under which an
individual can perform a particular major life
activity
 Is inability to perform a major life activity
that the average person in the general
population can perform
Banerjee & Brinckerhoff, July 2011
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Terminology for Documentation Review
Average Person
Standard
 The ADA defines "disability" as an
impairment that substantially limits a major
life activity. This limitation is supposed to
be determined with reference not to one's
innate abilities, but to the skills of the
average American citizen. (Katsiyannis, A;n.d.)
 However, literal application of the
average person standard would mean that
anyone with a college/graduate degree
would not be protected under the ADA
 Price v. NBME (1997)
Banerjee & Brinckerhoff, July 2011
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Terminology for Documentation Review
Accommodations  Adjustments/adaptations to
postsecondary academic and non-academic
experiences that seek to ensure equal access
 Determined on a case-by-case basis
 Not meant to lower academic or technical
standards of program of study; may not
change essential elements of the program
 Must be reasonable and not cause undue
burden
 Attention should be paid to the student
request; but must be based on “need” not
“preference”
Banerjee & Brinckerhoff, July 2011
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Terminology for Documentation Review
Psychometric
Consideration
 Norm sample and technical merits of the
assessment battery
 Screening v. diagnostic measures
 Percentile and Standard Scores v. Age and
Grade equivalents
 Absolute v. Relative discrepancy (intra and
inter individual differences)
 Thresholds for average/above/below scores
for individual tests
 Comparability across standardized test
instruments
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Three Basic Steps in Documentation
Review
1.
• Is the disability covered under the ADA?
2.
• Are the impairment(s) substantially limiting to
warrant disability status under the ADA?
3.
• What are appropriate and reasonable
accommodations?
Banerjee & Brinckerhoff, July 2011
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Mining Documentation for Evidence
Objective Evidence
Authentic Evidence
Relevant Evidence
• Objective evidence is
information that is
independently verifiable.
In other words, any
qualified individual
reviewing the evidence
can independently
interpret the information
that is reported and
arrive at the same
conclusion.
• Example: Standardized
test and subtest scores
• Authentic evidence is
observed and/or field
based information.
• Reported evidence from
actual or perceived
experience
• Example: Self-reported
information, IEP/504 Plan
report
• Relevant evidence is
information that has
particular bearing or
significance on the
accommodations
requested.
• Example: A personal
letter from student,
accommodation letter
from another institution,
accommodations
received on high stakes
exams
Banerjee & Shaw, 2007
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Components in Accommodation
Decision Making (Practitioner)
• Disability
• Student
Intake/Input
Documentation
1.
2.
Accommodations
4.
• Faculty/
Course
Expectations
3.
• Program
Requirements/
Technical standards
Brinckerhoff & Banerjee, July 2011
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Extended Time
Accommodation
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Extended Time Accommodation
Rationale for request: slow rate of reading; takes me time to
understand something; have to read it multiple times; get
anxious under time pressure
Objective Evidence
Documentation Markers
Fluency Measures WJ-III: Reading Fluency
WJ –III: Academic Fluency
( O’fiesh, Mather, & Russell, 2005)
Cognitive Efficiency WJ-III: Cognitive Efficiency Cluster
(expanded)
- Working memory, Short-term Memory,
Processing speed) (Gregg et.al 2005)
Rate
NDRT – reading rate
Banerjee & Brinckerhoff, July 2011
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Extended Time Accommodation
Rationale for request: slow rate of reading; takes me time to
understand something; have to read it multiple times; get
anxious under time pressure
Authentic Evidence
Background history
as reported in
documentation
IEP information
Documentation Markers
- Difficulty finishing tests and homework
on time
- Received x-time informally
- Took exams with x-time in resource
room setting
Banerjee & Brinckerhoff, July 2011
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Extended Time Accommodation
Rationale for request: slow rate of reading; takes me time to
understand something; have to read it multiple times; get
anxious under time pressure
Relevant Evidence
Documentation Markers Extensions
Evidence of x-time - Difficulty finishing tests and homework
accommodation on on time
statewide and other - Received x-time informally in grade
school or another institution
high stakes tests
Personal
letter/Intake
-Student intake
- Letter explaining need for x-time
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Note-Taker Accommodation
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Note-Taker Accommodation
Rationale for request: Difficulty listening and writing
simultaneously; illegible handwriting; can’t follow class lecture –
gaps in notes; can’t write fast enough
Objective Evidence
Documentation Markers
Auditory Processing WJ-III: Following Directions; Spelling of Sounds
WJ –III: Visual-Auditory Learning;
Paced Auditory Serial Test (PASAT)
Distractibility and
other conditions
affecting attention
(PTSD; ADHD, ASD)
Rating Scales for ADHD
Conners’ Adult ADHD Rating Scale (CAARS)
Tests of Attention and Memory
Test of Variable Attention (TOVA); Wechsler
Memory Scales; WAIS –III-Working Memory
Index
Banerjee & Brinckerhoff, July 2011
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Note-Taker Accommodation (cont.)
Rationale for request: Difficulty listening and writing
simultaneously; illegible handwriting; can’t follow class
discussion – gaps in notes; can’t write fast enough
Objective Evidence
Processing speed*
Visual attention/
Divided attention
Documentation Markers
- WAIS-III – Processing Speed Index
- WJ-III – Processing Speed subtest
- Trail Making Test- Part A and B
- Wisconsin Card Sorting Test
(executive functioning)
* This factor needs to be considered with a caveat; it often becomes a
catch-all for all accommodation requests.
Banerjee & Brinckerhoff, July 2011
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Note-Taker Accommodation
Rationale for request: Difficulty listening and writing
simultaneously; illegible handwriting; can’t follow pace of class
discussion – gaps in notes, can’t write fast enough
Authentic Evidence
Documentation Markers
Prior use/ background - Use of note-taker accommodation
noted in documentation (self reported)
history
- Poor handwriting; legibility, spelling
Graphomotor skill
(reported in documentation)
Use of technology for - Has used audio (tape) recorder;
portable word processor/laptop;
note-taking
Smartpen
Banerjee & Brinckerhoff, July 2011
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Note-Taker Accommodation
Rationale for request: Difficulty listening and writing
simultaneously; illegible handwriting; can’t follow pace of class
discussion – gaps in notes, can’t write fast enough
Relevant Evidence
Content knowledge?
Note taking
strategies?
Instructional
environment
Usage pattern
Documentation Marker Extensions
- Note-taker Intake
Does student have pre-requisite knowledge &
readiness for course?
- Sample of class notes
- Format of delivery; opportunity for
clarification; faculty expectations
- Record of use (note-taker data base)
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Alternative Media
Accommodation
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Alternate Media Accommodation
Request based on: slow reader; background history (Mom
read to me in high school); get distracted while reading, have
difficulty reading unfamiliar words ….
Objective Evidence
Decoding
Documentation Markers
WJ –III: Letter-Word Identification; Word Attack
WIAT: Decoding; WRAT – 4 (screening)
Reading Fluency/Rate WJ-III: Reading Fluency;
Test of Word Reading Efficiency (TOWRE)
Reading
WJ-III: Passage Comprehension, Reading
Vocabulary
Comprehension
WIAT: Reading Comprehension
Nelson-Denny Reading Test (NDRT)
SATA: Vocabulary & Reading Comprehension
Banerjee & Brinckerhoff, July 2011
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Alternate Media Accommodation
Request based on: slow reader; background history (Mom
read to me in high school); get distracted while reading, have
difficulty reading unfamiliar words ….
Authentic Evidence
Educational and
developmental
history
Documentation Markers
Self report in documentation:
- never/rarely reads for pleasure
- limited vocabulary repertoire
- reading difficulty from early grades
- repeated re-reading without
understanding
- reads slowly and hesitantly
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Alternate Media Accommodation
Request based on: slow reader; background history (Mom
read to me in high school); get distracted while reading, have
difficulty reading unfamiliar words ….
Relevant Evidence
Documentation Marker Extensions
Approaches to reading Alt media student intake
complex text
Owns some text-toTech demo
speech software
Banerjee & Brinckerhoff, July 2011
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Clues for Documentation Review
1.
• Is there evidence from multiple sources?
2.
• Is there a consistent pattern of evidence over
time (cross validation)?
3.
• Is there past history of accommodation? If
not, is there an explanation.
Adapted from Banerjee & Shaw, 2007
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Concluding Thoughts
1.
• Avoid simplistic defaults to requested
accommodations
2.
• Consider accommodations on a semester-bysemester basis; dynamic process
3.
• Explain to students that accommodations are
not a guarantee for success
4.
• Be aware that accommodations cannot be
retroactive
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Audience Q and A
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