- Email: [email protected]
Accommodations Part II: Navigating Accommodations for Disabilities in Nursing Education
Teaching and Learning in Nursing 12 (2017) 318–319
Contents lists available at ScienceDirect
Teaching and Learning in Nursing journal homepage: www.jtln.org
Educate, Excite, Engage
Accommodations Part II: Navigating Accommodations for Disabilities in Nursing Education Sandra Y. Walker, EJD, MS, RN Health Sciences, Central Ohio Technical College, Newark, OH, USA
In Part I of this series, we reviewed the history of the laws related to persons with disabilities, the evolution of these laws, and basic terminology and implications of the laws. Part II of this series will discuss the specifics of accommodations in nursing education, including a review of key legal cases and considerations to assure equal opportunities for qualified applicants. To assure a solid understanding of accommodations in nursing education, it would be appropriate to review the definition of the qualified person. In nursing education, it is one who, with or without reasonable accommodations, meets the programs core performance standards. Core performance standards are different from the “essential functions” that many nurse educators may be familiar with. Core performance standards may also be called technical standards—simply put, they are the eligibility requirements of the program, that is, they are the admission standards used to determine whether an applicant is qualified to enter the program (Marks & Ailey, 2015). These are typically the standards required of the student—not of the licensed nurse in practice. Examples of technical standards or core performance standards may be found at http:// www.nond.org/resources/Model_Technical_Standards_2014.pdf. If an applicant performs at the level required for admission, that person cannot be prohibited based on assumptions about their disability. Admission standards must be written so that applicants with disabilities do not experience discrimination. The student with the disability should be afforded the opportunity to work toward meeting the program's technical performance standards with or without accommodations (Jones, 2012). The law requires only that an “otherwise qualified” person not be excluded because of the disability (Americans with Disabilities Act [ADA], as amended, 2008). One must keep in mind that the definition of disability is unchanged since the Rehabilitation Act of 1973, which notes that a disabled person is someone who has the following: • a physical or mental impairment that substantially limits one or more of his or her major life activities; • a record of such an impairment; or • one who is regarded as having such an impairment.
Disclaimer: This article is not intended to offer legal advice. It is an educational article. For specific legal guidance, consult your agency's legal counsel. E-mail address: [email protected].
This definition has remained viable through the revisions created under the ADA and the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Perhaps, the most significant change since the Rehabilitation Act of 1973 is the ADAAA's expanded scope of protection, particularly in the realm of life activities. Whereas nurses are very familiar with the implications of activities of daily living, “life activities” as incorporated in the ADAAA are much more expansive and include, in part, seeing, hearing, eating, sleeping, breathing, walking, bowel and bladder control, reading, communicating, perceiving, and others (Southern Regional Education Board, 2010). Because of this expanded definition of life activities that may be impacted by disabilities and increased consumer awareness, anecdotal evidence suggests that nursing education programs are experiencing higher numbers of student requests for accommodation (there is little to no research data available). As a result, programs are compelled to show that reasonable efforts are made in the presence of a qualified disability. Today, nursing education programs are confronted with a variety of accommodation requests. Accommodations may be considered as follows: • Assuring that facilities are readily accessible for use by individuals with disabilities • Restructuring or altering clinical experiences • Modifying academic program plans • Modifying examinations including location, timing, and testing conditions • Giving supplementary learning materials • Providing qualified readers or interpreters (Southern Regional Education Board, 2010) Frankly, anything can be an accommodation; however, typically an organization is only expected to make an accommodation that is considered reasonable. This is determined on a case-by-case basis and is determined by the agency in view of the impact on the agency's fiscal resources and operations. It is imperative that each agency have a defined process in place to determine what is reasonable and be able to defend the action taken (Equal Employment Opportunity Commission, 2017). To assist each agency in their determination of reasonable accommodations, it is prudent to review what is not considered a reasonable accommodation, such as the following:
http://dx.doi.org/10.1016/j.teln.2017.07.001 1557-3087/© 2017 Organization for Associate Degree Nursing. Published by Elsevier Inc. All rights reserved.
S.Y. Walker / Teaching and Learning in Nursing 12 (2017) 318–319
• removing and/or altering a requirement that would result in fundamentally altering the course of study; • tolerating or excusing violent or abusive behavior; • nonadherence to policy and procedure that is consistent with the educational program; or • providing personal services such as toileting, feeding, medication administration, and others (Equal Employment Opportunity Commission, 2017). It is important to note that nursing education programs are not required to fundamentally alter the nature of the nursing program. Students in prelicensure programs must meet professional licensure requirements and regulations set by the appropriate Board of Nursing or responsible state regulatory agency. Accommodations are intended to level the playing field—they are not intended to guarantee success. Dupler et al. (2012) point out that “the law does not assume that a student with a disability is able to meet the requirements of an educational program; it requires only that an otherwise qualified individual not be excluded because of the disability.” The courts have addressed various cases that deal with allegations of disability discrimination in higher education. Cases provided here are only examples. The reader should research applicable cases in their respective jurisdictions. For example, in Southeastern Community College v. Davis, 442 U.S. 397 (U.S. Supreme Court, 1979), the court addressed the case of a student with a hearing impairment denied admission to a nursing program. The court defined the otherwise qualified person in this case as one who can meet all of the program requirements in spite of a “handicap.” This court noted that technical standards are permissible. In Ohio Civil Rights Commission v. Case Western Reserve University, 666 N.E.2D 1376 (Ohio Sup Ct. 1996), the court found for the university in a case where a blind applicant had been denied admission to the medical school. The court discussed undue burden and unreasonable accommodations and the implications for substantial changes in the way the medical program was taught. Nursing programs have faced challenges regarding denial of readmission to students who were previously in program. Courts have found that schools may refuse admission/readmission when evidence shows the student is unable to meet program requirements. In Anderson v. University of Wisconsin, No. 87–2335. (7th Cir. 1988), a law student requested readmission for the third time after two previous dismissals because of behavioral issues. The court found for the program, noting that a program may refuse to admit or readmit a student when evidence shows the student is unable to meet program requirements. In Webb-Eaton v. Wayne County Community College District, 2013, U.S. Dist. Lexis 103,176, a nursing student alleged that the nursing program failed to accommodate her latex allergy. The court found that the inability to pursue a particular course of study does not amount to a substantial limitation in the major life activity of learning. Although learning is a major life function, learning to be a nurse is not. In this case, the court found that a latex allergy is not a disability under the ADA. In Wynne v. Tufts University School of Medicine 976 F. 2d 971, a medical student failed multiple courses and alleged that the college failed to accommodate for his alleged disability. However, the court emphasized the student's responsibility to provide appropriate documentation to the college regarding the student's handicap and found that the college made multiple efforts to provide reasonable accommodation in light of what was known. This case upheld the program's right to maintain academic standards and avoid substantial program alterations. The program is not expected to incur undue hardship to accommodate student requests.
319
In summary, there are several implications here for nursing education programs: • The law does not require that prospective students disclose their disability before admission; however, if the student desires accommodation once they are admitted to the program, they must disclose and work with the college's designated disability coordinator. • Programs are permitted to establish technical standards; however, they must be written so that students with disabilities do not experience discrimination. • The program is not obligated to provide accommodations if the student fails to disclose the disability and fails to follow the agency's procedures. • Personal attendants and individually prescribed devices are the responsibility of the student. • Programs are not expected to lower academic standards or incur undue hardship in their efforts to meet accommodation requests. There is no reason to fear accommodation requests. Federal law requires compliance in the presence of a request for accommodation for students with recognized disabilities. It is important to keep in mind that accommodations are intended to level the playing field, not to give an advantage or guarantee success for the student. The program must show that reasonable efforts are made and each case must be managed individually based on the circumstances. Students with disabilities should be held to the same program and regulatory standards as those without disabilities. Finally, the program must be consistent in holding all students accountable to the same standards in order to avoid allegations of discrimination. References Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (1990). Retrieved June 17, 2017 from https://www.law.cornell.edu/uscode/text/42/12101. Americans with Disabilities Act of 1990, as Amended, Pub. L. No. 110-325 (2008). Retrieved June 17, 2017 from http://www.ada.gov/pubs/adastatute08.htm. Dupler, A. E., Allen, C., Maheady, D., Fleming, S. E., & Allen, M. (2012). Leveling the playing field for nursing students with disabilities: Implications of the amendments to the Americans with disabilities act. Journal of Nursing Education, 51(3), 140–144. http://dx.doi.org/10.3928/o1484834-20120127-05. Jones, R. (2012). Technical standards FAQs. Chicago IL: NOND (Cited in Marks & Ailey). Marks, B., & Ailey, S. (2015). White paper on inclusion of students with disabilities in nursing educational programs for the California committee on employment of people with disabilities (CCEPD). Retrieved June 17, 2017 from http://www.nond.org/NOND-FAQs/files/437b5b79980dc1b8bbc59400a62dd2af63.html. Rehabilitation Act of 1973, 29 U.S.C. 791 § 504 et seq (1973). Retrieved June 17, 2017 from https://www.access-board.gov/the-board/laws/rehabilitation-act-of-1973. Southern Regional Education Board (SREB) (2010). The Americans with disabilities act: Implications for nursing education. Retrieved June 17, 2017 from https:// www.sreb.org/publication/americans-disabilities-act. U.S. Equal Employment Opportunity Commission (EEOC) (2017). Procedures for providing reasonable accommodation to individuals with disabilities. Retrieved June 17, 2017 from https://www.eeoc.gov/eeoc/internal/reasonable_accommodation. cfmhttps://www.eeoc.gov/policy/docs/accommodation.html#undue.
Court Cases Southeastern Community College v. Davis, 442 U.S. 397 (U.S. Supreme Court, 1979) (d). Retrieved from http://caselaw.findlaw.com/us-supreme-court/442/397.html. Ohio Civil Rights Commission v. Case Western Reserve University, 666 N.E.2D 1376 (Ohio Sup Ct. 1996) (y). Retrieved from https://www.partners.org/Assets/ Documents/Graduate-Medical-Education/ImpairmentsH.pdf. Anderson v. University of Wisconsin, No. 87-2335. (7th Cir. 1988) (d). Retrieved from http://www.hunter.cuny.edu/access/resources/court-case-studies. Webb-Eaton v. Wayne County Community College District, 2013, U.S. Dist. Lexis 103176 (d). Retrieved from https://www.gpo.gov/fdsys/pkg/USCOURTS-mied2_12-cv-14821/pdf/USCOURTS-mied-2_12-cv-14821-0.pdf. Wynne v. Tufts University School of Medicine 976 F. 2d 971 (d). Retrieved from http://openjurist.org/976/f2d/791/wynne-v-tufts-university-school-of-medicine.
Contents lists available at ScienceDirect
Teaching and Learning in Nursing journal homepage: www.jtln.org
Educate, Excite, Engage
Accommodations Part II: Navigating Accommodations for Disabilities in Nursing Education Sandra Y. Walker, EJD, MS, RN Health Sciences, Central Ohio Technical College, Newark, OH, USA
In Part I of this series, we reviewed the history of the laws related to persons with disabilities, the evolution of these laws, and basic terminology and implications of the laws. Part II of this series will discuss the specifics of accommodations in nursing education, including a review of key legal cases and considerations to assure equal opportunities for qualified applicants. To assure a solid understanding of accommodations in nursing education, it would be appropriate to review the definition of the qualified person. In nursing education, it is one who, with or without reasonable accommodations, meets the programs core performance standards. Core performance standards are different from the “essential functions” that many nurse educators may be familiar with. Core performance standards may also be called technical standards—simply put, they are the eligibility requirements of the program, that is, they are the admission standards used to determine whether an applicant is qualified to enter the program (Marks & Ailey, 2015). These are typically the standards required of the student—not of the licensed nurse in practice. Examples of technical standards or core performance standards may be found at http:// www.nond.org/resources/Model_Technical_Standards_2014.pdf. If an applicant performs at the level required for admission, that person cannot be prohibited based on assumptions about their disability. Admission standards must be written so that applicants with disabilities do not experience discrimination. The student with the disability should be afforded the opportunity to work toward meeting the program's technical performance standards with or without accommodations (Jones, 2012). The law requires only that an “otherwise qualified” person not be excluded because of the disability (Americans with Disabilities Act [ADA], as amended, 2008). One must keep in mind that the definition of disability is unchanged since the Rehabilitation Act of 1973, which notes that a disabled person is someone who has the following: • a physical or mental impairment that substantially limits one or more of his or her major life activities; • a record of such an impairment; or • one who is regarded as having such an impairment.
Disclaimer: This article is not intended to offer legal advice. It is an educational article. For specific legal guidance, consult your agency's legal counsel. E-mail address: [email protected].
This definition has remained viable through the revisions created under the ADA and the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Perhaps, the most significant change since the Rehabilitation Act of 1973 is the ADAAA's expanded scope of protection, particularly in the realm of life activities. Whereas nurses are very familiar with the implications of activities of daily living, “life activities” as incorporated in the ADAAA are much more expansive and include, in part, seeing, hearing, eating, sleeping, breathing, walking, bowel and bladder control, reading, communicating, perceiving, and others (Southern Regional Education Board, 2010). Because of this expanded definition of life activities that may be impacted by disabilities and increased consumer awareness, anecdotal evidence suggests that nursing education programs are experiencing higher numbers of student requests for accommodation (there is little to no research data available). As a result, programs are compelled to show that reasonable efforts are made in the presence of a qualified disability. Today, nursing education programs are confronted with a variety of accommodation requests. Accommodations may be considered as follows: • Assuring that facilities are readily accessible for use by individuals with disabilities • Restructuring or altering clinical experiences • Modifying academic program plans • Modifying examinations including location, timing, and testing conditions • Giving supplementary learning materials • Providing qualified readers or interpreters (Southern Regional Education Board, 2010) Frankly, anything can be an accommodation; however, typically an organization is only expected to make an accommodation that is considered reasonable. This is determined on a case-by-case basis and is determined by the agency in view of the impact on the agency's fiscal resources and operations. It is imperative that each agency have a defined process in place to determine what is reasonable and be able to defend the action taken (Equal Employment Opportunity Commission, 2017). To assist each agency in their determination of reasonable accommodations, it is prudent to review what is not considered a reasonable accommodation, such as the following:
http://dx.doi.org/10.1016/j.teln.2017.07.001 1557-3087/© 2017 Organization for Associate Degree Nursing. Published by Elsevier Inc. All rights reserved.
S.Y. Walker / Teaching and Learning in Nursing 12 (2017) 318–319
• removing and/or altering a requirement that would result in fundamentally altering the course of study; • tolerating or excusing violent or abusive behavior; • nonadherence to policy and procedure that is consistent with the educational program; or • providing personal services such as toileting, feeding, medication administration, and others (Equal Employment Opportunity Commission, 2017). It is important to note that nursing education programs are not required to fundamentally alter the nature of the nursing program. Students in prelicensure programs must meet professional licensure requirements and regulations set by the appropriate Board of Nursing or responsible state regulatory agency. Accommodations are intended to level the playing field—they are not intended to guarantee success. Dupler et al. (2012) point out that “the law does not assume that a student with a disability is able to meet the requirements of an educational program; it requires only that an otherwise qualified individual not be excluded because of the disability.” The courts have addressed various cases that deal with allegations of disability discrimination in higher education. Cases provided here are only examples. The reader should research applicable cases in their respective jurisdictions. For example, in Southeastern Community College v. Davis, 442 U.S. 397 (U.S. Supreme Court, 1979), the court addressed the case of a student with a hearing impairment denied admission to a nursing program. The court defined the otherwise qualified person in this case as one who can meet all of the program requirements in spite of a “handicap.” This court noted that technical standards are permissible. In Ohio Civil Rights Commission v. Case Western Reserve University, 666 N.E.2D 1376 (Ohio Sup Ct. 1996), the court found for the university in a case where a blind applicant had been denied admission to the medical school. The court discussed undue burden and unreasonable accommodations and the implications for substantial changes in the way the medical program was taught. Nursing programs have faced challenges regarding denial of readmission to students who were previously in program. Courts have found that schools may refuse admission/readmission when evidence shows the student is unable to meet program requirements. In Anderson v. University of Wisconsin, No. 87–2335. (7th Cir. 1988), a law student requested readmission for the third time after two previous dismissals because of behavioral issues. The court found for the program, noting that a program may refuse to admit or readmit a student when evidence shows the student is unable to meet program requirements. In Webb-Eaton v. Wayne County Community College District, 2013, U.S. Dist. Lexis 103,176, a nursing student alleged that the nursing program failed to accommodate her latex allergy. The court found that the inability to pursue a particular course of study does not amount to a substantial limitation in the major life activity of learning. Although learning is a major life function, learning to be a nurse is not. In this case, the court found that a latex allergy is not a disability under the ADA. In Wynne v. Tufts University School of Medicine 976 F. 2d 971, a medical student failed multiple courses and alleged that the college failed to accommodate for his alleged disability. However, the court emphasized the student's responsibility to provide appropriate documentation to the college regarding the student's handicap and found that the college made multiple efforts to provide reasonable accommodation in light of what was known. This case upheld the program's right to maintain academic standards and avoid substantial program alterations. The program is not expected to incur undue hardship to accommodate student requests.
319
In summary, there are several implications here for nursing education programs: • The law does not require that prospective students disclose their disability before admission; however, if the student desires accommodation once they are admitted to the program, they must disclose and work with the college's designated disability coordinator. • Programs are permitted to establish technical standards; however, they must be written so that students with disabilities do not experience discrimination. • The program is not obligated to provide accommodations if the student fails to disclose the disability and fails to follow the agency's procedures. • Personal attendants and individually prescribed devices are the responsibility of the student. • Programs are not expected to lower academic standards or incur undue hardship in their efforts to meet accommodation requests. There is no reason to fear accommodation requests. Federal law requires compliance in the presence of a request for accommodation for students with recognized disabilities. It is important to keep in mind that accommodations are intended to level the playing field, not to give an advantage or guarantee success for the student. The program must show that reasonable efforts are made and each case must be managed individually based on the circumstances. Students with disabilities should be held to the same program and regulatory standards as those without disabilities. Finally, the program must be consistent in holding all students accountable to the same standards in order to avoid allegations of discrimination. References Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (1990). Retrieved June 17, 2017 from https://www.law.cornell.edu/uscode/text/42/12101. Americans with Disabilities Act of 1990, as Amended, Pub. L. No. 110-325 (2008). Retrieved June 17, 2017 from http://www.ada.gov/pubs/adastatute08.htm. Dupler, A. E., Allen, C., Maheady, D., Fleming, S. E., & Allen, M. (2012). Leveling the playing field for nursing students with disabilities: Implications of the amendments to the Americans with disabilities act. Journal of Nursing Education, 51(3), 140–144. http://dx.doi.org/10.3928/o1484834-20120127-05. Jones, R. (2012). Technical standards FAQs. Chicago IL: NOND (Cited in Marks & Ailey). Marks, B., & Ailey, S. (2015). White paper on inclusion of students with disabilities in nursing educational programs for the California committee on employment of people with disabilities (CCEPD). Retrieved June 17, 2017 from http://www.nond.org/NOND-FAQs/files/437b5b79980dc1b8bbc59400a62dd2af63.html. Rehabilitation Act of 1973, 29 U.S.C. 791 § 504 et seq (1973). Retrieved June 17, 2017 from https://www.access-board.gov/the-board/laws/rehabilitation-act-of-1973. Southern Regional Education Board (SREB) (2010). The Americans with disabilities act: Implications for nursing education. Retrieved June 17, 2017 from https:// www.sreb.org/publication/americans-disabilities-act. U.S. Equal Employment Opportunity Commission (EEOC) (2017). Procedures for providing reasonable accommodation to individuals with disabilities. Retrieved June 17, 2017 from https://www.eeoc.gov/eeoc/internal/reasonable_accommodation. cfmhttps://www.eeoc.gov/policy/docs/accommodation.html#undue.
Court Cases Southeastern Community College v. Davis, 442 U.S. 397 (U.S. Supreme Court, 1979) (d). Retrieved from http://caselaw.findlaw.com/us-supreme-court/442/397.html. Ohio Civil Rights Commission v. Case Western Reserve University, 666 N.E.2D 1376 (Ohio Sup Ct. 1996) (y). Retrieved from https://www.partners.org/Assets/ Documents/Graduate-Medical-Education/ImpairmentsH.pdf. Anderson v. University of Wisconsin, No. 87-2335. (7th Cir. 1988) (d). Retrieved from http://www.hunter.cuny.edu/access/resources/court-case-studies. Webb-Eaton v. Wayne County Community College District, 2013, U.S. Dist. Lexis 103176 (d). Retrieved from https://www.gpo.gov/fdsys/pkg/USCOURTS-mied2_12-cv-14821/pdf/USCOURTS-mied-2_12-cv-14821-0.pdf. Wynne v. Tufts University School of Medicine 976 F. 2d 971 (d). Retrieved from http://openjurist.org/976/f2d/791/wynne-v-tufts-university-school-of-medicine.