AHEAD: Association on Higher Education And Disability

December 2012 ALERT

December 2012 ALERT in PDF
Download the December 2012 ALERT

• Note of Passing
• Letter From the Editor
• Message From AHEAD President
• Professional Development Opportunities
• Federal Update
• AHEAD Standing Committee Updates
• Affiliate's Corner

Letter From The Editor

The end of the semester is here! While I'm sure that you are all very busy with end of the semester items such as finals, papers, and those students who may not be doing well, there is a light at the end of the tunnel. It is time for us to take a break, catch our breath, spend time with family, and to remember those who have touched our lives. It is a time for us to be thankful for what we have, because so many others have less. I think I speak for many of us, when I say that AHEAD is like a second family. We may only see each other once or twice a year, but in this time of giving thanks I know that I am very thankful for all of the support, wisdom, and laughs that you all bring me every day. I also want to take a moment and say a huge THANK YOU to all of the staff at AHEAD. They do so much for us behind the scenes. Without them, we would not be the organization that we are today. So thank you to Stephan, Richard, Tri, Oanh, Jeremy, Jane, Devva, and Valerie. Thank you all for all that you do for us every single day!

Happy Holidays everyone!

Emily (Singer) Lucio
lucio@cua.edu
ALERT Editor

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Message From AHEAD President: Scott Lissner

Access to instructional materials is a critical issue for AHEAD, it’s members, their institutions and the students they serve. The importance of this issue is reflected in The Author’s Guild Inc v. HathiTrust decision on October 10th . The case involves a collaborative project between Google and the CIC libraries. There are a number of issues in the case but one centers on making library materials accessible to print-disabled students. While the Author’s Guild filed a Notice of Appeal on November 8th I encourage you to read this District Court decision which states in part:

“… perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by Defendants as fair use to the extent that Plaintiffs have established a prima facie case of infringement.” and goes on to say “The provision of equal access to copyrighted information for print-disabled individuals is mandated by the ADA and the Rehabilitation Act of 1976.”

The HathiTrust Decision is congruent with AHEAD’s long standing position and with the final report to Congress by the AIM Commission (Advisory Commission on Accessible Instructional Materials in Postsecondary Education for Students with Disabilities) last December. AHEAD was well represented on the committee by Gaeir Dietrich (who served as Chair) and Stephan Hamlin-Smith. Additionally many AHEAD members provided testimony (Jo Anne Simon, Ron Stewart, Sheryl Burgstahler, and myself were among the invited witnesses) helping to shape the Commission’s findings which include:

• Congress should authorize the United States Access Board to establish guidelines for accessible instructional materials that will be used by government, in the private sector, and in postsecondary academic settings;
• Congress should consider incentives to accelerate innovation in accessibility by publishers and producers of course materials, hardware, and software by offering support and inducements for the production, sale, and consumption of accessible instructional materials and delivery systems; and
• The commission recommends that federally sponsored projects and programs encourage and support systematic faculty and staff professional development with respect to selection, production, and delivery of high-quality accessible instruction materials to meet the needs of students with disabilities in postsecondary settings.

Like many of us, the Commission’s recommendations have patiently waited for the election cycle to end. I encourage each of you to review the final report and share it with faculty, administration, students, and other organizations you belong to. We occupy a unique middle ground between the creators of content, publishers, and individuals with print disabilities at a time when the technology of production delivery of curricular materials is rapidly evolving creating an unprecedented opportunity to advance civil rights without sacrificing intellectual property rights. As congress resolves the fiscal cliff and broadens its gaze to the wider policy arena AHEAD will be calling on you, its allies, and sister organizations to press for implementation of the AIM Commission’s recommendations by Congress and the development of fair use policies by publishers and universities.

Scott Lissner
AHEAD President

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Professional Development Opportunities

Mark your calendar for these upcoming professional development opportunities:

January - February 2013
AHEAD Management and TRiO Institutes
January 31 - February 2
The Westin Long Beach
Long Beach, California
www.ahead.org

April 2013
13th Annual Multiple Perspectives on Access, Inclusion and Disability: Intersections and Independence
April 16 - 17, 2013
The Ohio State University
Columbus, Ohio
http://mpconference.osu.edu/

April 29 - 30, 2013
29th Annual Pacific Rim International Conference on Disability and Diversity
Hawaii Convention Center
Honolulu, Hawaii
http://www.pacrim.hawaii.edu

May 2013
National ADA Symposium
May 13 - 15, 2013
The Hyatt Regency
San Antonio, TX
Call for Presentations deadline October, 1, 2012
Email submissions- EdwardsMic@health.missouri.edu
www.adasymposium.org

June 2013
25th Annual Postsecondary Disability Training Institute
June 4 - 8, 2013
The Boston Park Plaza Hotel & Towers
Boston, Massachusetts
http://www.pti.uconn.edu/

July 2013
AHEAD in Baltimore
Challenging and Changing Disability Perspectives
July 8 - 13, 2013
The Hilton Baltimore Hotel
Baltimore, MD
www.ahead.org

July 22 - 26, 2013
Eighth International Conference on Higher Education and Disability
Innsbruck, Austria
Call for Presentations!- email innsbruckconf2013@uno.edu
www.trac.uno.edu/conf

August 2013
RID International
August 9 - 14, 2013
Indianapolis, IN
Call for Proposals- Deadline August 15, 2012
http://www.rid.org/userfiles/File/pdfs/2013%20Conference/RID2013CallForProposals.pdf

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Federal Update

by Irene Bowen

This is the tenth in a series of articles, “AHEAD of the ADA Access Curve,” to assist disability service providers, ADA Coordinators, and others in promoting compliance with the Americans with Disabilities Act, section 504, and the Fair Housing Act. This series approaches physical access and related issues as key to the civil rights of individuals with disabilities. It is intended to provide some helpful tools in a time of shifting requirements and shrinking resources.

On the Federal Front: What to Watch for in 2013

You may be breathing a sigh of relief because DOJ’s and EEOC’s ADA regulations’ deadlines and compliance dates have passed (with one exception), and you’re sure your college or university is in compliance – or at least it’s on the way to full compliance. You feel confident that your colleagues are making progress in ensuring access to web sites, on-line learning, and emerging technology, and you’re reducing burdensome documentation requirements, in line with federal and AHEAD guidance and developing case law. If that’s the case, you can also take a deep relaxing breath, and enjoy the holidays. But what other recent developments should you keep in mind, and what should you expect in the coming year from the federal government? With the caveat that my dusty crystal ball is out of warranty, here is a selection of issues and developments to anticipate in 2013.

The 2010 Accessibility Standards

There is one deadline to be aware of, and – let’s hope – more guidance to come on some thorny issues about housing in higher education.

The rules for pools
January 31, 2013: This is the one Department of Justice (DOJ) deadline/compliance date that’s still to come, and it’s listed first as a reminder.

In issuing its 2010 ADA regulation revisions, DOJ recognized that for too long people with disabilities had been excluded from participating in many recreational activities, including swimming. The 2010 Standards set minimum requirements for making swimming pools, wading pools, and spas accessible. Newly constructed and altered pools – those built or altered on or after March 15, 2012 -- must meet these requirements. That generally means that at least one pool lift and/or sloped entry, depending on the size of the pool, must be provided.  

Under Title III, public accommodations, such as private colleges and universities, must bring existing pools into compliance with the 2010 Standards to the extent that it is readily achievable to do so. Under Title II of the ADA, state and local governments, including public colleges and universities, must make recreational programs and services, including swimming pool programs, accessible to people with disabilities. Under the rules as issued in September 2010, any swimming pool (or wading pool or spa) that had to be brought “up to standards” for these purposes had to have a pool lift and/or other means of entry and exit by in March 2012.

In May 2012 DOJ extended the compliance date for these existing pools to January 31, 2013, after controversy arose surrounding hotel and motel owners’ understanding of, and ability to comply with, the deadline. DOJ also issued guidance about pool lifts, emphasizing that, among other things, a fixed lift must be independently operable by the user. If a fixed lift is not readily achievable, or creates an undue financial or administrative burden under Title II, only then can a portable pool lift be used.

Accessibility standards: Some good news about “conflicting” standards, but we need more guidance
Good news: The Department of Education (Education) has taken steps to eliminate the confusion created by inconsistent standards under Section 504 of the Rehabilitation Act, issued by Education in 1991, and DOJ’s 2010 ADA Standards for Title II. Both apply to public colleges and universities, but the two sets of standards are inconsistent and sometimes conflict with each other.  On March 14, 2012, Education issued a notice, 77 Fed. Reg. 14972, interpreting the section 504 regulations to permit use of the Title II regulations for new construction and alteration on or after September 15, 2010. Covered entities may also use the Uniform Federal Accessibility Standards (UFAS), currently referenced in the section 504 regulations. Use of the 2010 Title II ADA Standards will not be required under section 504 until the Department formally revises its section 504 regulations to adopt the 2010 ADA Standards.

Residence halls and other housing in higher education
While Education’s clarification is helpful, other applications of the ADA Standards may still lead to some confusion. For example, the 2010 ADA regulations newly define a category of “housing at a place of higher education.” Within that category, apartments or townhouse facilities leased “on a year-round basis exclusively to graduate students or faculty” are subject to different standards from other university or college housing, such as traditional undergraduate residence halls. “Residential dwelling units” within the first category are not eligible for the new safe harbor for existing facilities for purposes of program accessibility and barrier removal. Applying these requirements presents some difficulties, both obvious ones and less subtle ones. Those people responsible for planning, designing, or operating housing on behalf of a college or university would be well-advised to study these regulations as they construct or alter housing or attempt to determine whether they have met the title II and III requirements for existing facilities.  DOJ representatives have said that the Department will be offering some guidance about how to apply these requirements.

Complicating matters is the fact that the regulations of the Department of Housing and Urban Development (HUD) under the Fair Housing Act (FHA), and in some instances HUD’s section 504 regulations, also apply to both types of housing. Those entities subject to section 504 are to follow UFAS, and those subject to FHA are to use one of HUD’s several “safe harbors.” There have been no indications from HUD as to whether it intends to follow Education’s lead in allowing the use of the ADA Standards for section 504 purposes.  

Service and Assistance Animals
The Department of Education has clarified the “registration” issue. There may be a preliminary decision soon in an important case on emotional support animals, University of Nebraska at Kearney.

Guidance or case law will offer some clarification
Colleges and universities are understandably befuddled at times by unclear and apparently conflicting direction from various agencies about what types of animals must be allowed on campus on in housing, what questions can be asked, and what procedures should apply. The Department of Education has signaled recently that under Section 504 and Title II colleges and universities cannot require students with service animals (that is, dogs that are individually trained to do work or perform tasks for a person with a disability) to register the animals and produce documentation of the disability and the specific need for the animal as an accommodation. (See OCR letter and resolution agreement for complaint No. 01-12-2008, April 6, 2012, Community College of Vermont.)  This approach is consistent with DOJ’s 2010 regulations, under which individuals with disabilities are entitled to be accompanied by their service animals in all areas where members of the public are allowed to go. DOJ has said that the only questions that can be asked when it is not obvious what service a dog provides are (1) whether the animal is required because of a disability and (2) what tasks it is trained to perform. Requiring registration of a service animal, or otherwise treating use of a service animal in the same way as a request for an academic adjustment and/or auxiliary aids and services, would run counter to these principles.

We can still hope for further guidance as to how a college or university should handle situations in which it suspects that an animal is not a “legitimate” service animal.

In addition, institutions of higher education need to draw careful distinctions between their approach to service animals and their approach to requests for emotional support or other assistance animals in a residential setting, because of the separate provisions of the Fair Housing Act (FHA).

The most significant case to watch, in which a court decision would bring clarification of how the FHA applies to higher education, is DOJ’s suit against the University of Nebraska at Kearney challenging its alleged refusal to allow students with emotional disabilities to live in campus housing with an emotional assistance animal. The FHA protects the right of people with disabilities to keep assistance animals as a “reasonable accommodation” in housing, even when a landlord’s policy explicitly prohibits pets. The Kearney suit is the first one brought by the federal government against a university to enforce these provisions as to emotional support animals for people with emotional or psychiatric disabilities. The case was filed in November 2011, and just two weeks ago -- in November 2012 -- both the government and the University filed motions and briefs on the threshold question raised by the defendants: whether the FHA applies to colleges and universities. The University claims that the University’s student housing is not a “dwelling” used as a “residence” and that therefore the case should be dismissed. If the case survives this motion, and the mattered is not settled, it is likely that the court will reach the question of what types of inquiries can be made about an individual’s disability, and the connection between the disability and the animal requested, under the FHA. (The briefs mentioned are not yet available at a lay web site. For background on the case, see my ALERT article from December 2011.)

More Regulations?

The year 2013 may bring some proposed rules on the ADA Amendments Act, equipment and furniture (including electronic technology), and web sites.

After the usual several-month slowdown in regulatory activity prior to an election, some pending proposed regulations may be released for publication in 2013. In 2010 DOJ issued notices (advance notices of proposed rulemaking, or ANPRMs) stating its intent to amend the ADA regulations in several respects. The next step would be a notice of proposed rulemaking (NPRM) for each, including the text of a proposed rule. It is difficult to know which rules would be proposed first because the last official statement as to timing (the Regulatory Agenda) was filed in the fall of 2011, but it appears some are on a faster track than others. Of course, budget constraints that affect staffing and the ability to fund regulatory impact analyses may cause delays in any rulemaking. Monitor DOJ’s web site at www.ada.gov for these:

Amendments to Section 504 regulations and ADA regulations in light of the ADAAA
The Equal Employment Opportunity Commission finalized its regulations implementing the ADA Amendments Act (ADAAA) in 2011, to address Congress’ resetting of the definition of disability and to establish standards that must be applied to determine if a person has a covered disability. DOJ has said that it intends to revise its section 504 regulations (including those that guide other agencies’ section 504 regulations) and ADA regulations to reflect the ADAAA as well. This may be the first proposal to emerge from DOJ in 2013.

Equipment and furniture, including electronic technology
The DOJ equipment and furniture ANPRM addresses a wide range of issues including the accessibility of kiosks, ATMs, vending machines, washing machines, golf carts, electronic technology (which may include clickers, e-readers, etc.), and medical equipment.  After the ANPRM appeared, the Department stated that it will first publish a separate NPRM on beds in accessible guest rooms (for example, in hotels but probably also in residence halls) and a more detailed ANPRM focusing solely on accessible medical equipment and furniture. The remaining items of equipment and furniture will be the subject of a later, separate NPRM. In the meantime, it appears that DOJ will be publishing proposals about next generation 9-11 and movie captioning, issues also raised in the ANPRMs.

Website accessibility
DOJ has made it clear through guidance, litigation, settlements, and other announcements that it considers websites of state and local governments, as well as those of public accommodations, to be covered by the ADA’s mandates on equal opportunity and effective communication, but there are no specific regulations about how to make websites accessible to and usable by individuals with disabilities. The ANPRM stated DOJ’s intent to issue a proposed rule, specifically mentioning higher education:

Beyond goods and services, information available on the Internet has become a gateway to education. Schools at all levels are increasingly offering programs and classroom instruction through Web sites. Many colleges and universities offer degree programs online; some universities exist exclusively on the Internet.  Even if they do not offer degree programs online, most colleges and universities today rely on websites and other Internet-related technologies in the application process for prospective students, for housing eligibility and on-campus living assignments, course registration, assignments and discussion groups, and for a wide variety of administrative and logistical functions in which students and staff must participate.
Specific accommodations that may be addressed in an NPRM include captioning for videos posted online, alt text descriptions for photos, accessible online forms, and elimination of CAPTCHAs (wavy letter boxes).

This possible NPRM was not even mentioned in the latest regulatory agenda, which suggests that this proposal may come later than the others listed.

All told, there may be a lot on our plates in 2013. But for now, just file this away and enjoy what’s on your festive holiday plate. There will be plenty of time to study up and follow federal developments after the holidays.

This series of articles is provided as a member service by Irene Bowen, J.D., with ADA One, LLC. Until August 2008, Irene was Deputy Chief of DOJ’s Disability Rights Section. She is also former Deputy General Counsel of the Access Board. ADA One provides consulting, training, and alternative dispute resolution services related to the Americans with Disabilities Act and similar laws. You can contact Irene at IreneBowen@ADA-One.com  or by phone at 301 879 4542.  Her web site is http://ADA-One.com.

The content in this article is for informational purposes only. It is not and shall not be deemed to be legal advice or a legal opinion. You cannot rely on the content as applicable to a particular circumstance or fact pattern. If you need legal advice about a particular issue and particular facts, you should seek professional legal advice.

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AHEAD Standing Committee Updates

Standing Committee on Professional Development
Carol Funckes, Chair

Building on the success of last year’s Out of the Box! strand of conference sessions, the Standing Committee on Professional Development has begun work on two conference strands for the 2013 International Conference. In collaboration with next year’s Program Chair, Cheryl Muller; AHEAD’s Director of Professional Development, Richard Allegra; and the Board of Directors, we are envisioning a strand of sessions specifically targeted to the novice professional, AHEAD Start, and a second strand, Out of the Box, focused on exploring provocative topics such as micro aggressions and implicit messaging with seasoned professionals.

Records indicate that each year approximately one third of participants are attending their first AHEAD conference. Many of these professionals are new to their roles in higher education or to administrative leadership. Beginning with a two-day preconference, we are designing a full strand of sessions that offer foundational information on the major components of higher education disability resource work.  AHEAD Start will offer an opportunity to connect with AHEAD and build a network of colleagues.

Seasoned professionals often report that the most significant part of their AHEAD conference experience is the networking that they do between sessions. Opportunities to engage in meaningful “wondering” with colleagues, especially during this time of fundamental evolution in our work, is one of the most valuable aspects of a face-to-face conference. Our goal will be to provide structure for the kind of conversations we all crave to push us beyond where we can go on our own. We are lining up leaders in our field to facilitate exploration of the impact disability resource offices can have in framing a new campus narrative.

We expect topics in both strands to inform AHEAD’s interest in identifying professional competencies and establishing a formal program of professional development opportunities. If you have suggestions for topics, please drop me a line at carolf@email.arizona.edu. More information will be available in conference registration materials.

Standing Committee on Technology
Ron Stewart, Chair

The 15th annual Accessing Higher Ground (AHG) conference was held in Westminster, Colorado, November 12 - 16. The AHG conference is the premier event for those working in the higher ed space in the areas of Access and Assistive Technologies. As usual, a very high quality program was presented from beginner sessions, such as the AT A-Z preconference workshop, to a series of advanced sessions on Web Content presented by Derek Featherstone, an internationally recognized expert on usability and accessibility for web-based resources.

In addition to a very comprehensive program, one of the highlights of the conference was the introduction of a new video during the Thursday lunch plenary session. This DOIT video looks at IT Accessibility from a senior administrative perspective and would be a wonderful resource to share with your campus community. It can be found at the DOIT website: IT Accessibility Video.

For those who could not attend the conference, many of the sessions will be available as archived and captioned streaming video from the AHG Virtual Conference effort. For more information on this resource visit the AHG Virtual Conference website. Additionally, many of the presenters' handouts will be available on the AHG Archive site along with the materials from prior conferences.

The AHEAD Technology Standing Committee highly recommends the AHG conference as the premier conference for staff development for those working with IT and Access in the higher ed space. This one-of-a-kind conference not only provides an exceptional program it also gives great opportunities for networking with the leaders in the AT field.

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Affiliate’s Corner

Terra Beethe, Affiliate Liaison BOD
Margaret Camp, Lead Affiliate Representative

Ark-AHEAD

• Fall Conference featured Margaret Price, Associate Professor Department of English at Spelman College in Atlanta, GA.
• Discussion Topic was Mental Disability in the College Classroom: Re-imagining Access and Design Overview of workshop.

Capital AHEAD

• C-AHEAD, MD-AHEAD & AHEAD in VA are hosting a Holiday Luncheon on December 4, 2012 from 12:00 – 3:00 p.m. at UMUC, Largo Campus, 1616 McCormick Drive, Largo, MD 20774.

Presentation “Using Assistive Technology to Provide Universal Access” by
Debra Ruh, Chief Marketing Officer, SBBart Group

NC AHEAD

• Fall 2012 Conference

Theme: “Accessibility is Everyone’s Responsibility: Networking Best Practices on College Campuses” with AHEAD Executive Director, Stephan Hamlin-Smith.
Over 70 attendees; many new faces to the conference and organization

• Upcoming Events/Activities
• Created student scholarships; offer 3 scholarships (public university/college, private university/college and community college)
• Spring 2013 Drive-In Conference on March 8, 2013 at NC State University AT Conference

New England AHEAD

• NE AHEAD hosted their first webinar of the semester with Scott Lissner. He gave a great overview of AHEAD’s Guidance document for NE AHEAD members. The second webinar is with Mary Barrows and Jennifer Newton from Northeastern University on navigating the evolving documentation standards.
• The membership drive has been hugely successful thanks to Bridget McNamee from Wentworth Institute of Technology!

NJ AHEAD

• NJ AHEAD’s November meeting was canceled due to the storm. The December meeting will take place on Friday, December 7, 2012 at New Jersey City University-Gilligan Student Union Building-Room 129, 2039 Kennedy Boulevard, Jersey City, NJ 07305. The topic is a panel discussion on Transition to Career for Students with Disabilities. Panelists include:

Joseph Amoroso, NJ Disability Services
Paula Barber, Heldrich Center, Rutgers University
Margaret Barry, Passaic County, DVR
Barbara Wexler, Ramapo College of NJ
Jackie Safont, William Paterson University
Elaine Weir-Daidone, Middlesex County College

There is no charge to attend the event. All attendees are welcome to become members of NJ AHEAD for $50 annually per institution/agency in order to participate in future events. This is separate from international AHEAD membership. Kindly bring your name badge if you have one.

RSVP to Jennifer Aitken at jaitken@njcu.edu and please note any required accommodations.

• Upcoming events: 11/30, Brookdale CC – NJ3C Conference, Dr. Robert Brooks, “Working with Angry & Resistant College Students: Strategies for Fostering Motivation, Self-Discipline, and Resilience” (NJ3C fee.) Please note that NJCU’s Annual Conference will be rescheduled in Spring, 2013.

SUCCEEDS

• Fall 2012 Conference was on October 12 in Columbia, SC. Topics covered included Reports from AHEAD Conference in New Orleans, changes to FERPA, Town Hall Meeting-style discussion of new AHEAD documentation guidance, and results of their state-wide survey of DS offices were discussed. They also held their business meeting.

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