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Salome Heyward Presents: Disability Accommodations in Clinical Settings Tues, 22 April 2014

Salome Heyward is a civil rights attorney with over 30 years’ experience in the field of disability discrimination law and disability management. Dr. Heyward is frequently sought out by media personnel to provide legal background for their productions concerning disability issues, e.g., NBC, CNN, ESPN, the New York Times, the Christian Science Monitor, and the Chronicle of Higher Education. She is a well-known and respected speaker and trainer in the area of disability discrimination law and disability management. She has been a featured presenter for national associations and organizations such as the American Association for Affirmative Action, the Association of Higher Education and Disability, the Council of State Governments, the National Association of State Personnel and the International Learning Disabilities Association. Dr. Heyward’s firm, Salome Heyward & Associates, helps post-secondary institutions, agencies and employers develop and maintain effective and compliant ADA/Section 504 programs and services. Services provided include: Program and function audits; case evaluations; ADA consulting; and complaint review and analysis.

JON: All right. We're good. Hello, everyone. Thanks so much for making it. Sorry for the late start but we kicked somebody out of the room and now we're

here. I'm Jon McGough, the Assistant Director for Disability Resources, and I think I

still get my newbie card for a little while. We wanted to thank School of Medicine for helping us out with this room and

bringing Salome Heyward to campus. I will condense my introduction of Salome, but she's fantastic. Salome is a civil rights attorney with over 30 years' experience working with the

Department of Education. She's been a faculty member of a law school and gives good advice to schools and institutions around the country.

Maybe it's common in academia. Many of us have opinions but I haven't been tempted to argue with Salome yet and I hold what she says in very high esteem and I'm sure you will too.

Salome Heyward: Good morning. I want to try to make this for you all sort of a, a work session where I can possibly

answer your questions or help you with some case situations that might be troubling for you.

so how I've styled my, my prepared comments is just really to touch on the kinds of things that institutions tend to have problems with in terms of the clinical environment.

I think the clinical environment is, you know, it's a little scarier for us because you know, now we're moving from the safety of the academic classroom and, and we're sending our students out there and they're going to encounter third parties.

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That means issues of patient safety, how our students work with our colleagues in an employment environment, and so it brings up additional kinds of issues and concerns that we need to have.

And many of those issues and concerns are not unique to, to our students with disabilities. They, they impact all of the students that we send into a clinical environment.

What I'm fond of saying to, to programs is that you know, if we're going to be honest with ourselves, sending any student into a clinical environment is sort of a crapshoot; it really is, you know. It's like, stuff happens.

Group: (Laughing). Salome Heyward: So we have to keep reminding ourselves of that and not

somehow make it, seem impossible because some of those students might have disabilities.

I think you know, as educators, you know, you have students that are academically superior and you send them into the clinical environment and it's God-awful.

You have other students who academically, you know, they may not do so great. You send them into a clinical environment and they're the star of that environment.

So the first thing that we have to keep in mind is that you know, this is something that's about all of our students, and, and you know, our concerns are related to students as a whole, not just the fact that we may have students who have some disabilities.

And the other thing that we have to keep in mind is that the manner in which we accommodate students is very different in a clinical environment, and the manner in which we accommodate students in an academic environment.

It's not that we don't accommodate our students; it's that we might be accommodating them in a different way in a clinical environment, and the first thing that we have to remind ourselves is that we can't, you know, we can't make stereotyped-type decisions about our students with disabilities.

For example, there's a, a case involving an institution in which a student had academic problems. He goes into the clinical environment. He has difficulty interacting with his colleagues, getting things done.

Subsequently because of his grade point average he's suspended. He's allowed to petition to return. As a part of his petition to return, he's been evaluated while he was out and he

provides information that he's bipolar, and as a part of that discussion whether to readmit the student, basically the committee goes, we don't see how someone with a bipolar condition can possibly survive in this program working 70-80 hours when they're a resident and what have you.

That judgment ultimately places the institution in violation of the law, because it has nothing to do with the individual abilities of this particular student; it's basically just the stereotypical judgment based on the condition, the bipolar condition, that the student can't possibly be successful.

And so those are the kinds of cases where institutions have trouble because they make a decision based upon the mere existence of a disability or a medical condition and based on that decision they judge the student not to be qualified, while at the same time that institutions have responsibilities, students have responsibilities as well.

One of the things that we have to remind students is that they have a continuing responsibility to be qualified, to participate in the program that they're enrolled in.

And so a student who is qualified and is properly accommodated in an academic environment, when that student now moves into a clinical environment, the student may

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in fact end up not being qualified. For example, a student with physical disabilities who's in a physical therapy

program, and one of the standards of the program is the student needs to be able to handle 25-50 pounds because they're assisting patients, they have to have physical strength in their arms and hands.

If the student is unable to do those things, while the student is successful in the academic course work, the student is not qualified in the clinical environment.

So the obligation of the student throughout their academic career and their existence in the program is to be qualified, and when we move into the clinical environment, we being students then are faced with having to meet technical standards, things like the ability.

If you're in physical therapy, to be able to lift or handle 25 or 50 pounds. If you're in medical school, the ability to perform CPR and all of the things that we

ask medical students to do. Those are technical standards of the program. There are also standards of the profession that students have to meet. Licensure or standards of the program that students have to meet, all of those

things that end up on the table when we start talking about the qualified status of students in the clinical environment, and students are obligated to meet those technical standards.

So a student who would ask for an accommodation that sort of flies in the face of meeting those types of standards would end up, you know, you would end up making a judgment that the student is not qualified.

For example, a student in a dental hygiene program, and one of the requirements of the program is that students work on each other as patients, and the reason why the program had this requirement was twofold:

One, not enough volunteers or people showing up at the dental school to, to have their teeth cleaned and be worked on;.

Two, the need for students who are going to be dental hygienists to have a sense of the patient's experience when they're being worked on.

and this student said well, you know, I have a diabetic condition. I'm concerned about being cut, infections.

So the student's request was to have that requirement waived. Ultimately when the student filed a complaint because the program would not

waive the requirement, the Department of Education sided with the program, said it was a legitimate rational requirement of the program and in order for the student to be qualified to continue in the program and subsequently graduate from the program, the student must meet, must be able to participate and meet that technical standard of the program.

So you know, students have a responsibility to, to be qualified as well. One of the issues for institutions when we talk about technical standards,

professional standards, and those things is that we have institutions have to be careful in terms of how we identify those things that are essential requirements.

And one of the, one of the things that happened when the Americans with Disabilities Act was passed, the standard, the regulations in the law said individuals with disabilities are qualified who can perform the essential requirements of the job.

And so what happened as, when the law was passed is, all of these employers and companies grew up around the country that said okay, we'll identify the essential requirements of the job for you.

And then what that then moved to Allied Health programs, medical school

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programs, all programs for which students were being trained in a particular profession or to do a particular job, those programs then began to develop what they called technical standards for their programs, and I worked for the Department of Education when programs first started developing technical standards.

And those initial forays into developing technical standards were really just descriptions of disabling conditions.

I remember our first reviews and when we worked with nursing programs and medical schools, they would hand us technical standards that said:

The ability to hear. The ability to see. The ability to walk. The ability to stand. And we went, you're just describing disabling conditions. So the technical standards for institutions are those things that all of your

students must be able to perform, and so it's what's appropriate for institutions is to begin to describe those things that are the skills and the abilities that you would measure all of your students by.

And so as I said earlier, it makes sense to have a requirement that a student in a physical therapy program can handle 25-50 pounds.

It makes sense that a student in a dental hygiene program may have to act as a patient and participate as that being a required part of the program.

It makes sense that a student who's enrolled in a medical school program would have to have the physical strength to perform CPR and those kinds of things that are required of, of students.

what doesn't make sense? I I was at an institution recently, that's a client institution of mine, and we were

working with their, they have a culinary institute. And so we were working with the culinary institute and they were developing

technical standards for people who were going to be chefs. You're going to be a chef. You're cooking in a kitchen. And one of their technical standards was that the person must be able to lift and

move 50 pounds independently. And my question for the dean of the program, the chairperson of the program is:

why is that an essential, why is it essential for a chef to be able to lift and move 50 pounds independently?

>>>: Hmmm.Salome Heyward: Why would you have to do it alone? Why wouldn't you use a hand truck?What, you know, or some other tool to aid you in moving that, and how often

would a chef have to move 50 pounds independently in a kitchen environment?That doesn't equal an essential requirement of performing the skill of a cook in a

kitchen and the things that one would have to do. So we have to look at our essential requirements in terms of the skills and the

abilities that our students have to perform within the clinical environment that we place them in, to judge what are essential requirements.

The next thing that we have to do is once we identify what we consider to be essential requirements of our program, then our obligation is to apply those requirements and standards in a nondiscriminatory manner, so that we can't be guilty of treating our students with disabilities differently in the way that we apply those

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requirements and standards. So you know, I like to use cases that illustrate institutions who do it correctly and

institutions who do it incorrectly. So in, in our first case we have a student who is in a vet tech program. The student has a visual impairment and also a, a minor hearing impairment. And a part of the issue for the the student in the clinical environment in the vet

tech program is the kinds of things that you need to be able to do is you need to recognize animal behavior, and when you're treating and working with an animal, is the animal scared, is the animal aggressive, what, what are you seeing or sensing in the animal that you're working with, you need to be able to respond and assist your colleagues in working with animals.

One of the things that they found with this student was that because of her visual impairment, she had difficulty recognizing and responding to the behaviors in the animals that she was working with, and as a consequence, one of her peers, because she didn't recognize what was going on with an animal, was bitten, because she didn't properly hold the animal and pay attention to what was going on.

Other issues that she had because of her visual impairment was that she, when examining an animal and doing a test, she injured the animal because of a visual, visual problems she had in performing the test that she was performing.

So these kinds of things ultimately she was judged not to be qualified to continue in the vet tech program.

And certainly the court supported the institution in making that decision, because her ability to interact with animals and work with animals are an essential part of that program, and the difficulty she had related to her disability, there was no way in which the institution could accommodate her such that she could safely perform in that environment, to make it safe for the animals as well as the colleagues and the peers she was working with in the environment.

So that's an institution that, that made a proper decision in terms of an essential requirement of the program.

An example of an institution that, that didn't do it properly, involved a situation in which a student was admitted into a teacher education program.

She showed up to meet with the dean of the program to talk about accommodations that she would need on the academic side.

She had a hearing impairment., so she showed up to meet with the dean of the program and as they had discussions about accommodation, she came with her sister, they had discussions about the accommodation she would need academically.

They were talking about CART services, and she talked about her ability to lipread and communicate and the academic side.

The deans, started thinking about how would the student be able to perform in a student teaching environment?

And following the meeting with the student met with the admissions folks and decided to retract her admission into the school because their judgment was, he was like, look: There are going to be 25-30 students in a classroom environment.

If she can't hear what's going on, there's a problem in terms of her interacting with the students. There's a problem in terms of safety. If there is an emergency, and alarm systems, we don't have any schools that we have a relationship with that would put her in a smaller classroom setting, so she's not qualified.

That decision placed the institution in violation of the law. And here's what the court said to the institution: It said, first of all, the student was there to talk about accommodations in the

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academic environment. Student wasn't asking for CART services or any accommodation for the student

teaching placement. Even if your concern regarding student teaching is legitimate, there is a

responsibility that you have under the law, and the responsibility in the law is to do what is called an individualized assessment, and that means that the institution was obligated to say to the student, we, we're going to make a determination about your qualified status. We need documentation concerning your disability. We need to see what the manifestations of your disability is. We need to make a judgment as to what accommodations you might need. Then we need to make a decision about whether those accommodations are appropriate in the environment in the student teaching environment that you would find yourself in.

The institution was obligated to bring to the table folks who were experts with respect to hearing impairments.

One of the things that the court found significant was the court said, the dean and the school didn't even know the specifics of the nature of her hearing impairment.

They didn't know what residual hearing she had. She had done work in, in a school environment previously. They had no idea

what her past experience was in working in a school environment, what types of accommodations she had been provided in that environment, what was the manner in which she would need assistance, if any at all. Did she have residual hearing?

So all of -- none of those issues were on the table. The other thing that the court noted was that the dean of the, of the education

department was not an expert in hearing impairments and they didn't invite an expert to participate in the discussion and look at the documentation and get a sense of the functional limitations that the student might have, so that prior to making a decision that a student is not qualified, an institution is obligated to look at the documentation, make a decision about the functional limitations of that individual student, make decisions about the nature of the clinical environment that the student is going to be placed in, make decisions about whether or not there are reasonable accommodations that you might provide to the student in that environment, and so it can't be speculative. It can't be just, I can't see how a person with a hearing impairment can be a student teacher, which is precisely what the dean of the department of the student education made in that particular case.

So it's important, one of the things that both the Department of Education and the courts consistently say to education, educational entities is that we don't want to step into your shoes and be educators.

We're perfectly happy to let you make educational decisions and defer to your judgment, but the key is, you have to follow the proper process.

If you follow the proper process, we will defer to your judgment and we're not going to argue with your ultimate decision.

The proper process requires you to do the individualized assessment, to take a look at the documentation, to make decisions about the limitations as well as the skills and abilities of the individual, to bring all of the relevant information to the table as well as the relevant experts to help you make the decision.

If you do that, what the courts have said to institutions is, whether you ultimately say the student is qualified or isn't qualified, we pretty much will defer to your judgment, if it's logical and it's rational and it makes sense and we can see that you considered all of the relevant information.

But if you don't do that, then we don't defer to your judgment and even if you

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ultimately, you know, you can ultimately as an institution stand on the table and declare that you're right, you know, in your loud as possible voice and it doesn't matter; it simply doesn't matter.

In fact, there was a recent case in which an institution insisted that they were absolutely correct that the student wasn't qualified and what the court said to the institution is, we don't even get to that decision because everything you did leading up to it was wrong.

And you violated the rights of the student, so it ultimately doesn't matter that you feel you are correct in your ultimate decision.

So the process becomes very important in terms of how you make your decisions, if you're going to judge a student not qualified.

>>>: So, I just had a question. Sounds like it wasn't the timing because they did almost a preemptive strike. This was at the time of admission and I know some of us struggle with that: Do

you wait until they've paid for two years and they go into the clinic and that's when you start looking at all of this, but looks like that's when you're saying doing more of a review of the qualified status at admission point is valid in a way.

Salome Heyward: Well, it's sort of -- here's what I advise institutions that I work with.

The earlier you make that decision, the better job you need to do in terms of, of the process.

You know, institutions, it's sort of like the vet tech case that we talked about earlier where they gave the student an opportunity to see if she could perform in the environment.

You know, in those kinds of situations then the institution clearly has evidence, no, the student can't perform, is not qualified, we can't come up with an accommodation that's reasonable under the circumstances.

If you're going to make a judgment early on in the process, then you have to make sure that you dot all of the Is and cross all of the Ts.

The best medical school case is the University of Texas Medical School case, and what happened in that particular case is you had a student who got admitted to medical school. Her academic record was superior.

You know, we're not supposed to care at admission, at the admission level whether or not students have disabilities. We don't get to ask that question, you know.

So once the student was admitted to medical school, what the medical school did was what a lot of institutions do:

Once students are admitted, they give them the sheet that has the technical standards for the program on it and basically they have the student sign off on the technical standards, basically to acknowledge that they're on notice that these are technical standards of the program.

This young woman had multiple disabilities, physical disabilities. And so when she saw the technical standards of the program, she just began

marking on the sheet: CPR, be able to manipulate patients and all of the things that she couldn't do because she had weakness in her hands, she was a wheelchair user, there were all of these things that she couldn't do.

So she, she struck a line through the list and said, well, I can't do these things but I can, you know, if I'm provided an assistant, I can tell them how to do it, you know, and she acknowledged on each of the things the things she felt she couldn't do: no, I can't do CPR, and there were about eight or nine things on the list that she said she couldn't

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do. Now when the dean of the medical school saw this, he was like, well, she can't

possibly be admitted into -- she, you know, we can't, she can't be admitted into medical school. We just need to tell her she can't attend.

Luckily for the dean of the medical school, they had an in-house disability services person who went, no, that's not how we do it.

We can't just say to the student: we admitted you but no, you're not qualified. What she said to the dean is, here's how we're supposed to do it.What the student has written on our technical standards is basically her saying, I

have a disability and here are the accommodations I would need in order to participate in your program.

So we have to do the individualized assessment. So what they did was they said to the student, you know, we acknowledge that

you're saying that you have a disability and you may need accommodations to participate in the program on the clinical level.

We need to see full documentation on your medical condition. She presented the documentation, and then for each of those things what the

medical school said was, here's our problem, you know. These are things that our students are expected to be able to do in the clinical environment, and if we're going to have someone do them for you, then you're not qualified to receive a degree from the medical school.

And they basically went through each one of them and said, this is why this would not be an appropriate accommodation, what you request, which is to have someone do these things for you.

And then they went further and said, not only do we find that what you're suggesting is not an appropriate accommodation; we can't come up with an alternative accommodation that would allow you to participate in the medical school program.

Ultimately then they said, you're not qualified as they went through that process, and when she filed a complaint with the Department of Education, the Department of Education ruled in favor of the medical school.

They said, you followed the proper process. You looked at all of the relevant information that was on the table. You considered the nature of her disability individually, her skills and abilities,

what would be the impact in the clinical environment. You couldn't come up with reasonable accommodations that would let her

perform the kinds of things that all medical school students would need to perform, so we defer to your judgment.

So you know, the key is, the earlier on that you make the decision, the more important it is to make sure that you follow the proper process in reaching that decision.

The other kinds of issues that, that institutions have is to what degree can you depend on licensure requirements as essential requirements of the program, and what, and what the courts and the Department of Education And Justice have said to institutions is, you cannot take the position that licensure is ultimate licensure is then an essential requirement of your program unless your program is solely a program for training people to achieve licensure.

Like, for example, you know, there's an auto admission certification program, and the only purpose for that program is to certify students to be auto admission state certification, to work for state certification gas stations and give certification.

That is the only purpose for the program. you know, students who are in law school, students who are in medical school,

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students who are in nursing programs may or may not end up teaching in that, working in that profession.

You know, there are many students who go through programs and they end up doing something else, and so we can't make ultimate licensure in a particular profession be the sole end-all of whether or not the student is qualified in the program itself, even if we're, it leads to ultimate licensure.

It's just one of the requirements, and those standards become one of many standards that, that are, that you apply in the way in which you judge the qualified status of your students.

So we have to be mindful of those kinds of things. The other kinds of issues is that you have to avoid what the federal government

calls categorical denials. There was a respiratory therapy program that said, we don't provide

accommodations in the clinical environment. Don't ask for them. We don't provide, you know. And their reasoning was hey,

when you go out in the real world, you know, you don't, you don't get accommodations, you have to be able to do this stuff, and that was their reasoning.

Well, two problems: First, that's untrue because the ADA applies to employment as well, but

secondly, students with disabilities have an absolute right to ask an institution to modify your policies and procedures.

And you are obligated to conduct the individualized assessment and make a determination on those facts for that particular student, and you can't have a rule that basically says under no circumstances will we ever provide you an accommodation in a clinical environment.

You know, those kinds of statements are problematic. It's, you know, I'm sure many of you are aware of the Creighton case. The Creighton [phonetic] case, one of the issues in the problem of the medical

school of Creighton is that they took the position that under no circumstances can someone with a hearing impairment be a doctor.

You know, that kind of absolute position is always a problem for an institution, and it's part of why, you know, the Court of Appeals rejected the district court's decision and sent it back for consideration, because the Court of Appeals is like, you can't have, you can't make an absolute statement that says under no circumstances can someone with a hearing impairment be a doctor.

That's always a problem for institutions. Other kinds of issues that you have is when can you insist that a student with a

disability who's going into a clinical environment, when can you insist that that student disclose that they have a disability?

You know, what if the student says, you know, I don't want anybody to know that I have a disability?

Can you insist that the student disclose? >>: No.Salome Heyward: And the answer to that question is, you -- it depends on

whether or not it goes to the qualified status of the student. If the fact that the student doesn't disclose and seek accommodations means

that the student is not qualified, then yeah, you have a problem and an issue that you have to take up with the student.

But if it, if it's totally unrelated to the student's qualified status, then you can't insist that the student disclose. There are a couple of cases.

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There's one case where a student was in a nursing program, and she had a seizure disorder.

Now, the reason that the dean of the nursing program was aware that she had a seizure disorder wasn't because the student was being accommodated.

It was because it was just passing knowledge that the nursing director had acquired.

The student's condition was adequately controlled by medication. She had never had any issues or problems while in nursing school. She you know, she wasn't seeking, she didn't ask for accommodations, she didn't

receive any accommodations, but when it was time for her to go into the clinical environment, the director said, you have to disclose that you have a seizure disorder, and the student refused and ultimately they didn't place the student in a clinical placement, and when the student filed a complaint, the nursing school was found in violation of the law, because there was no reason to disclose.

It didn't go to the student's qualified status so there was no reason for the nursing director to insist that the student disclose that she had a seizure disorder.

JON: Salome, if I can ask real quick, let's say that the person in the School of Nursing witnessed a seizure and it didn't appear it was under control.

Obviously that's a big change. What if that was a situation? Salome Heyward: Well, but then that changes things. JON: It does, but -- (chuckling). Salome Heyward: If we had, and that's the comparison that you would make. If instead the student was a, had seizures when she was in, when she was in the,

in the nursing school, they were having to call EMTs because her, she had frequent seizures, it wasn't adequately controlled by medication, now you're in a situation where it is relevant in a clinical environment, because if I'm in a clinical environment and I'm helping a patient walk down the hall, I'm supporting a patient and I have a seizure, I fall, the patient falls, it goes to patient safety.

Now it becomes relevant that the student has a condition that may impact their performance in the clinical environment, but you have to have some objective evidence and some basis for saying, you need to disclose. That's what I mean when I say it goes to the qualified status of the student in the clinical environment.

If it doesn't, then it, it doesn't matter. Yes, ma'am? >>>: So if it would relate, can we say you have to disclose or I'll disclose for

you? Doesn't the student still have the right to say, I'm not going to -- Salome Heyward: No. What you say to the student is you're not qualified in the

clinical environment unless you probably disclose. Student still gets the choice to say no, I don't want to disclose but the

consequence of that decision is that the student then is not qualified to participate in the clinical environment. Okay?

>>: And Salome, I was thinking that the threat to patient safety, so this could get into a bit of a direct threat situation, but I think what's difficult is that it's like you have to let it happen. Then you can act on it.

So you know, if you might have a seizure disorder, you know, you tend to want to be proactive about it but it's like you have to be in a situation where a student has had a seizure before you can even act on it. I'm not explaining myself very as well but -- oh, I am? Thank you.

Salome Heyward: If you don't -- let me sort of clarify that, and this sort of ties into where we're going next with this discussion.

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>>: You're welcome. Group: (Giggling). Salome Heyward: Because the next thing we have to talk about is those things

that are about patient health and safety, and it doesn't have to rise to the level of a direct threat, you know.

The, part of the concern that we have when we send students into a clinical environment, environment are those issues of health and safety of patients and how we, and how we manage that.

What the courts and the Department of Education has said to institutions is if in the academic environment you see something that raises concern for that student later being in the clinical environment, you don't have to wait until it happens.

You can take action while they're still in the academic environment if it's logical and it's rational and it makes sense, and I'll give you, I'll give you a couple of cases that illustrate this point.

There was a student who was enrolled in an EMT program, and during his academic course work he kept meeting with his advisors and he went, I am so stressed. I don't know what to do.

He goes, I feel like I could die I'm so stressed. He had a panic disorder. He was like, I don't know what to do. I might kill myself.

This is terrible, all of this -- I'm just having a difficult time. And based on this, those disclosures, he was about ready to go through his

clinical training where he would be in a truck going to emergency circumstances. They said, we -- you need to take a medical leave, you know, get some treatment, come back with an evaluation and a report that says to us that your condition is adequately managed so that you can be in the kind of stressful situation that you are in when you are an EMT and doing that kind of work. We are not going to place you clinically until you do this.

The student went no, no, I'm fine, you know, and they went, you're not fine. He ultimately filed a complaint and he lost because it was rational and logical

given what the student was saying to them for them to go wait a minute, you've got to be in a better place before we put you in an emergency vehicle trying to assist people who are in emergency situations, because it, you know, you can't get more stressful than that.

You're saying to us in the academic environment that you're so stressed that you can't function.

We're not going to send you out into the clinical environment. There was another case involving a nursing student who was interacting with her

colleagues in the program in an aggressive confrontational way, and so the nursing director and advisor called her in --

Group: (Giggling). Salome Heyward: -- to have a meter with her and as a part of that meeting she

just went off, and based off how she acted in the meeting, they said, we're not going to place you in a hospital in a medical environment at that point in time.

That student as well filed a complaint, said you're discriminating against me on the basis of my disability and once again the Department of Education said, it was a logical decision; we're going to defer to the judgment of the nursing officials that your behavior was not appropriate and it would be a detriment to patient safety in a clinical environment until you resolved whatever was going on with you.

Another case involved a medical student who was very depressed, had an anxiety disorder such that he was unresponsive frequently.

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He had problems interacting with others in the medical school academic environment, and the medical school said, we're not going to place you where you're dealing with patients in that environment until you get evaluated and we get a report from your health care provider that says you're qualified now to be in the clinical setting.

Once again, it's an acceptable determination by the institution. So you don't have to wait until they're in the clinical environment if there are signs

and indications prior to their placement that there's a potential problem. Yes? >>>: These last two examples that you just provided, the woman who went into

the nursing director's office and this woman with nonresponsive with anxiety, even take away anything you know about anxiety or depression or stress or anything, I mean, in our essential requirements we have standards for professionalism and how you would communicate, et cetera.

Just on that basis alone, so we could stay away from all of this in a sense by saying you're just not meeting the standards. Now we can try to explain why and make an action plan.

Salome Heyward: Sure. Right. You're not meeting the standards. Here is the action plan we would require of any student who's not meeting the

standards, but the second the student then goes yeah, but I have a disability and you're obligated to accommodate me, then that brings all of those other things to the table.

Then you have to do that individualized assessment we've just talked about. Yes, ma'am? >>>: On the individualized assessment, who's responsible for the cost of those? Salome Heyward: Well, the student is responsible to provide you documentation

that establishes what their medical condition is, that would allow, you know -- I don't know. Your process here is that you would have the Disability Services Office take a look at the documentation, so the student is responsible to bring forth that documentation.

If it means they have to have that $1500-2,000 evaluation to establish that they have the medical condition that rises to a level of a disability that would support the accommodations that they need, that's their responsibility.

You know, the process of them looking at that and making the determination is then made in conjunction with your Disability Services Office and you all.

Now, if you, if you disagree with their medical professional and say no, we disagree with the assessment, then the onus would be on you to, if you think you need a second opinion, the onus then would be on the medical school or the institution to pay for that second opinion or bring that next evaluator to the table.

>>>: But never the student? Or rarely the student? Salome Heyward: Well, it would only be on the student if there was something

lacking in what they initially provided you, but if it was complete and you just disagree with the assessment, then the onus is on you, not on the student.

Yes, ma'am? >>: We've been using the Washington Physician's Health Program, which

monitors licensure for physicians dentists and so we've required that program monitor and evaluate students.

Is that a problem with that and using -- and the rationale, in licensure, this is the program that would be monitoring them as well.

Salome Heyward: there's only a problem if something happens with one of your students where they make a judgment and the student asserts that it's discriminatory.

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You can't have a hands-on approach -- hands-off approach to that. What the courts and the Department of Education says to the institution is, your

student, your program, your obligation. So if the student asserts that they were treated by that organization that you

contract with or you have a partnership with in a discriminatory manner, you would be obligated to investigate that and seek to resolve whatever problem the student might be having.

>>: Yeah, we actually had that happen. Salome Heyward: Right. So basically you know, you just have to make sure that

your students are treated fairly in terms of how that process happens. Okay? >>: And Jon, do you interface with them at all? Would that be logical to do? JON: I know who they are but I don't interface with them. It may be, that W PHP leads students toward getting that additional

documentation and then they would bring it to me in requesting disability accommodations.

The potential time that I could foresee why to interact with them around no, this person's not fit to come back or something like that, then I think we'd want to involve the group in, if the student was protesting that, kind of along the lines of what Salome is saying.

If the student says no, my doctor says I'm going to go and the association says no, you've got X, we'd have to provide that.

I may follow up with a provider that I'd refer the student to if I had more questions, but I haven't had the instance to interact with W PHP yet.

>>: The student medication prescribed by one physician showed up as a positive on one test and the student was finding that medication helpful but they were asked to withdraw, and that was the dispute we were asked to mediate.

>>>: With regards to reasonable accommodation, I foresee with a student that we currently have, the question would be with the pace of clinic.

To accommodate the student's ability to demonstrate their skills, whether they can or cannot do what they need to do, how much -- I don't quite have the sense of how much we need to slow the pace down.

So for example, if I were to say to all of our students as they progress in different clinical rotations, right now the plan is the student will do one registration each of the upcoming quarters.

I know I am not supposed to think about what's going to happen in the real world, but I also have to look at capacity to manage a workload, a caseload.

Salome Heyward: Right, right, right. Yeah. What -- the real world, when we talk about the clinical setting, the real

world does come in. >>: Right.Salome Heyward: Because we're dealing with real patients. >>: Mm-hm. Salome Heyward: Real colleagues, real-life stuff as our students progress, you

know, understanding that when we first send students in the clinical setting, they're not taking charge of anything and we have more leeway, but as they progress through their educational process, you know, from, from first-year resident, if they're in medical school as we're going further up the food chain, as you will, then we have to be more and more mindful of how they interact with patients, patient safety, what they're responsible for doing in terms of doing the job well in that environment, making sure things happen in the proper way.

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So how we provide that kind of accommodation can't be totally open-ended and you take as much time as you need.

I mean, you know what's ahead for the student. And so what the courts and the Department of Education has said is, you can

marry that with what you know are the next steps for your students as they progress. So that while it may make sense initially for the person to have one rotation but

as they go further on and you know what's expected in the clinical environment as they proceed, then it can't be one rotation because it builds.

There was a case recently in which the accommodation they provided to the student is instead of the student, because of his learning disability, instead of the student having what would be a full load, five patients, and the issue for the student is writing up those notes and those reports for five patients, and they would give them until the end of the day but they had to be handed in at the end of the day and essentially they had the whole day to get them done, but given the student's disability, they started him out with three patients.

But ultimately after you know, one semester, now, and they made it as part of his plan, we're going to introduce that fourth patient and that fifth patient because that's a full census, and when you end up in the clinical setting at the next level when you're going to have to report to other doctors and colleagues and it's about making sure that we properly treat patients, you're going to have to be up to speed in that environment.

You're going to have to be able to make quick decisions and get orders correct and this is what's ahead for you, so while we may be able to slow it down for you initially, we're going to have to build it, you know, the goal is to build it up to what the census should be.

>>: As long as we're disclosing it, that is the objective that we're on the same trajectory path at a slower pace than all of the other students.

Salome Heyward: Yeah, and it's about the interactive process. I mean, a whole part of what your obligation is and the obligation of the student is to continually have that interactive process so that you're always on safe footing as long as you have provided notice to the students of what the expectation is and how you're proceeding towards that goal, and if you're doing that and if it's logical and rational, you know, always the Feds and the courts are going to defer to your judgment because you're the experts in terms of educating students to perform in this particular field.

And so you know, that's the balance that you get to strike, but you have to provide, you have to have that interaction with the student, as you figure out what's a proper accommodation in the clinical environment.

>>: Thank you. Salome Heyward: Yes, ma'am? >>>: What do you do if the disclosure of the disability comes after they've failed

to meet these milestones? Salome Heyward: you know, you didn't know the student had a disability. They

fail and then they go oh, but I have a disability. >>>: Right. Salome Heyward: Here's how it works. Group: (Giggling). Salome Heyward: The student is stuck with the consequences of what

happened if they didn't disclose and seek accommodations. Once they disclose, then it becomes a question of what happens in terms of the

institution. Once they disclose, then you're obligated to consider reasonable

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accommodations that you might make. So let's, student fails. You put them on a plan to deal with their deficiencies

academically. As a part of that, now you have to consider what might be reasonable

accommodations that would assist the student in being qualified and meeting those milestones going forward, but the consequences of their initial failure they're stuck with.

>>>: What if they went all the way through with dismissal and now they come forward.

Salome Heyward: Okay. So you've dismissed them from medical school and now they go, oh, but I have a disability.

Too bad. What's the next step? And I can give you an actual case. There is a medical school where once a student was dismissed, they were

allowed after a year being out to petition for readmission. >>>: Mm-hm.Salome Heyward: Okay? So what happened with this particular student, he's

dismissed from medical school. He comes back a year later, petitions for readmission into medical school, and as a part of the information that he brings to the table when he makes his petition is that he was diagnosed as being bipolar.

And so he has information from his treating physician that outlines the nature of his condition.

He provides information that, that his medication profile, his, his treating physician says here's how, here's why he had trouble in the past. Here's what our expectations will be in the future for how he will be able to perform. Here are the things that he may need as an accommodation if he's readmitted to your school.

The process and the procedure for the medical school was that they had a committee, and the committee would consider petitions for any student who sought readmission, and so then the obligation for the institution is to treat this student fairly and not to discriminate against him on the basis of disability, and what happened for this medical school is they didn't bring the necessary experts to the table when they were doing that individualized assessment, so they sat around and talked about the bipolar condition in general but they didn't look at his individual documentation. They didn't consider that.

They didn't consider the information provided by his treating physician concerning how he would proceed in medical school, what his needs would be.

They didn't make a judgment on how they would possibly accommodate him, and because they didn't do those things and further said to him: We need a plan of action moving forward for how you would proceed should we readmit you, and one of the issues that the court had in this case was you didn't ask any other student who sought readmission for a plan of action, so now you're treating this student differently solely because he disclosed he had a disability as a reason why he had trouble the first time around; that's discriminatory.

So the institution ultimately was found in violation. So the point of these, of that is you know, if a student waits to disclose until after

dismissal, then whatever your process and procedure is following that dismissal, you have to make sure that you don't discriminate on the basis of disability and that if they raise the issue of disability and seek accommodation, that you follow that individualized assessment in making your ultimate decision.

It doesn't change anything that happened before, but it does influence your future actions moving forward.

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Okay? >>: Salome, I want to go back to one of the comments that Amanda made

earlier. So if we're in the process of making the individualized assessment and we have

concerns around patient safety issues, when would we as an institution want to apply direct threat analysis and when do we not have to apply direct threat analysis?

Salome Heyward: Okay. You can't mix those two terms, okay, and the reason that you don't want to mix those two terms is that the threshold is significantly higher for a direct threat analysis than it is for patient safety and what happens in the clinical environment.

Okay? So when you say someone is a direct threat, then you have to establish that high probability of substantial risk of harm. That's -- and then all that due process stuff comes into play and all of that kind of thing.

The only case that I've seen involving a medical school where the direct threat analysis was appropriate as opposed to basic patient safety and what's appropriate in the clinical environment was the University of Maryland case where the, where the individual was in medical school about to start a surgical residency and he was HIV +.

Okay. Now we're talking direct threat, and that level of analysis is involved. >>: Because the level of potential harm is so high? Salome Heyward: Right. Because of the high probability of substantial risk, but

by and large when we're talking about the qualified status of students in a clinical environment, we are rarely in a posture where we're talking direct threat, because the issue of interaction -- professional standards, interactions with peers and colleagues and patient safety and those kinds of things allow the schools to make judgments about the qualified status of students that doesn't rise to the level of direct threat analysis.

And so you know, we wouldn't be putting that on the table. You can make your decision. It's like what you said about you implement a plan

when, when students are not meeting your standards. You get to make those decisions without going, you know, without elevating it to

a discussion of direct threat. Okay? >>: Thank you. Salome Heyward: So we don't, we don't mix those things. any questions? I've got a couple of other cases I want to talk about. I, I love this case because you know, we talked about the standards of the

profession, and one of my favorite medical school cases, you know, involves a medical student who was a resident, and you know, it's like there are some things that are legitimate standards of the profession that when we look at your technical standards, you didn't write that down, but it still means that the institution can apply those standards.

And what happened in this particular case is that the medical student was a first-year resident, and he was on an emergency room rotation at this particular time and, and he was at the hospital and a patient came in with, with some kind of injury or problem, and the doctor and the third-year resident issued an order for how the patient should be treated.

And he started arguing with them in front of the patient. And so the doctor takes him outside the room and basically says, you're a

first-year resident. You're primarily here to observe and do some things, and one of the things that I could give you a heads up on is that we don't argue in front of the patients because it scares them. It makes them not trust what we're saying, so it's inappropriate for you to be arguing with us about, you know, the orders for the patient and the

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treatment of the patient in front of the patient. So everybody thought the issue was solved. They released the patient with the treatment plan that they had established for

the patient, and subsequently the student, the first-year resident student was still not satisfied with the treatment plan that had been recommended.

So he called the patient at home. Group: Oh, gawd. >>>: I knew that was coming. Salome Heyward: And as a part of the discussion that he had with the patient at

home convinced the patient to come back to the hospital for some additional tests. Unfortunately for him he didn't think about the fact that he couldn't really admit the patient to the hospital so the patient shows up for the additional test, says that this doctor told him to come in. The whole thing blows up in the face of the resident, the first-year resident, and the long and short of it was that he kind of gets kicked out of medical school.

And he argues that because of his disability, that's why he, you know, he, he was on the spectrum. He had Asperger's and said because of my disability, that's why I had problems meeting the requirements in that environment but also argued, you know, but you can, you cannot apply those professional standards to me because it wasn't, nobody told me. I, you know, and what the court said in the case is, first of all, absolutely they can apply what are appropriate standards of the profession to you because it's logical and it's rational and it makes sense.

And just because they didn't write it down and say to you hey, you can't call a patient to come back to the hospital doesn't mean that they can't take action when you behave in an inappropriate manner.

So absolutely you can apply appropriate standards of your profession as an essential requirements for the performance of your students in a clinical environment.

The other thing that we need to talk about, and we've sort of touched on it when you asked about reasonable accommodations, is how we make decisions about what's reasonable.

Go back to the dental hygiene case that I talked about earlier where the student said, you know, I don't want to act as patient because you know, I may get cut. I may get an infection, and so you need to waive that requirement.

What the dental hygiene program did in that case was to say no, you know, we're going to -- they did a proper reasonable accommodation analysis and they said to the student, okay, we certainly understand your certain about an infection and the nature of your medical condition, so here's what we're going to do.

Instead of requiring you to act as patient four times, we'll reduce it to two times and we'll make sure that when you are acting as patient, it will be the least invasive type of procedure so it will reduce the chances of your receiving a cut and possible infection that would be problematic for you.

And you know, the Department of Education said that's absolutely appropriate reasonable accommodation to provide to the student so that it balances the essential requirement of the course at the same time as you're properly accommodating the student so she could continue in the program.

a case recently involved a student who was HIV+ who was in a medical office tech program, and the reason that the program became aware that the student was HIV+ was that he was in, he was taking a course where students were required to draw each other's blood, and when this student said was, I don't have, I don't have a problem drawing other students' blood but students should not draw my blood because I'm HIV+.

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And he disclosed that to the program. Well, what the program did was immediately dismiss the student by, and saying

that the student was a danger to faculty, staff, and his peers. And what, what the Department of Education said to the institution is no, no, no,

your obligation is to figure out if there is an accommodation you can make for this student in that program. Your obligation is to look at his request, which is, I'll draw the blood of other students; you accommodate me by not having students draw my blood because I'm HIV+. Is that a reasonable accommodation under the circumstances?

Does that allow the student to remain in the program and is it appropriate?And a part of what they said to the school was, you know, CDC is the standard

here. What does CDC say about this issue? Does it make sense? What do other schools do in a situation, medical office tech program as a means

of accommodating a student that might be HIV+, but you can't just simply dismiss the student from the program solely because they have, he or she has this condition.

Now the other side of the accommodation piece is that the accommodation that the student requests has to be reasonable as well.

What the student asked for as an accommodation, because the only reason we're accommodating students is that they be qualified to participate in the program.

So the accommodation that the student requests must allow them to be qualified to continue to participate in the program.

There is a medical student who had Asperger's, and a part of his issue was he had difficulty interacting with his colleagues, difficulty interacting with patients in the clinical environment.

What they discovered was that he got, there were dangerous situations because he didn't communicate well. He got orders were incorrect or misinterpreted or he forgot to put in orders.

When he did reporting, things were confused and there was miscommunication, and so what the student said was okay, I have a disability. I have Asperger's. It creates problems for me in interacting with people and in communicating with people, so here's what I would like as an accommodation.

You need to explain to everybody I work with what my condition is. Group: (Giggling). Salome Heyward: You need to explain it to them so they understand and they

cut me some slack, you know. Give me some leeway because of my disability and I'll enroll in a behavioral

course so I can possibly, behave better and change the way the way in which I interact with people, and these are the accommodations I need.

And the medical school said no to that. Ultimately the court said well, the problem with these accommodations you

requested is that they don't do anything to address the issue of you being qualified right now in the clinical environment.

Nothing is said about patient safety. Nothing is said about the miscommunications and the fact that you don't properly

report and the orders are confused and so if, if you are going to request accommodations from the medical school, you need to request accommodations that allow you to be qualified in that environment so that you can continue in, in the clinical program.

So that sort of circles back to what we initially said, which is, students have a continuing obligation to be qualified.

And those accommodations that they request must aid them in being qualified to

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participate in the program or in the clinical environment. Any other cases or questions that, that I can answer for you? >>>: I should have asked this question at the beginning, but by qualified, you

mean meeting the technical standards? Salome Heyward: Meeting the academic and technical standards of the

program. So any of those things that you consider to be essential are the standards that

your students must meet. >>>: What about an issue of, personal issue that really doesn't bear on technical

standards? Salome Heyward: Okay. >>>: For example, a student who in the academic setting, in the nonclinical

setting but I guess it could apply to the clinical setting who states they have a food allergy, and that particular food, they're requesting that that particular food not be in the air in their learning environment, in the student lounge, in the classroom.

Salome Heyward: Okay. >>>: How do you address that? Salome Heyward: Well, there have been a number of cases that are multiple

chemical sensitivity-type cases where a student would say, or an employee for that matter: I can't have these chemicals around me.

The obligation of the institution is to make a good faith effort. Now, having said that, it's a lot easier if it's in an employment environment that's

self-contained. For example, there was a case in which the chemical reactions that the person

had were to fresh paint, any new construction, types of pesticides, those kinds of things, and so the manner in which he was accommodated was that her office was in an older building because she did better in those buildings because there weren't the kinds of chemicals that she would react to.

They wouldn't allow the maintenance folks to use particular types of pesticides in her office environment, and so that's the accommodation they provided.

Where it becomes more difficult for institutions is where it's sort of I react to everything, and there was a case in which a student and her parents basically said: No one can eat this anywhere around her. People can't wear scented deodorants or perfumes -- what the courts and the Department of Education said, that's impossible to make happen. An institution can't ensure that no one around you will have, will wear scented deodorants or perfume.

They can't ensure that someone in the classroom is eating, you know, they can't make sure that someone isn't eating something with peanuts in it or that something isn't in the air that, that might be a problem for you.

So we have to separate out those things that are personal needs -- >>>: Mm-hm. Salome Heyward: -- from those things that an institution or an employer has to

make a good faith effort to accommodate. You know, we don't put people in a bubble; I mean, we can't sanitize the entire

environment, and so some of those things are personal responsibilities to them because it's not unique to the educational environment. It's everywhere they go.

So they have to take personal responsibility, you know. Those are the things in the law that we call personal needs that an institution or a clinical environment can't manage.

So the obligation of the institution is to have a meeting with that student and

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figure out those things that you can control and manage in a reasonable way and those things that you absolutely cannot.

And -- >>>: A follow-up question: How much can you impose on the student's

classmates and others to change and modify their food likes and dislikes for the benefit of one student?

Salome Heyward: We don't make people accommodations. So by that I mean, you can say to people, you know, and what some institutions

have done is sort of post it in the environment, you know, we would respectfully request that you don't wear highly scented perfumes and this and that, but that's just a request.

>>>: Mm-hm. Salome Heyward: Is it, can the institution do anything if somebody chooses to

eat peanuts or wears a particular perfume in an environment? No. So we don't turn individuals into accommodations in that way. >>>: Doesn't that kind of fall into the reasonable accommodation? I mean, so -- Salome Heyward: Right. So you have the discussion. That's what I mean when

I say you have the discussion with the individual and figure out what you can reasonably do and make a good faith effort at and then there are some things that are personal needs that aren't reasonable. Yes?

>>: Could, could you briefly comment on who has the right to know within the faculty, within those who are responsible for the student's degree program?

We, I think we very much struggle with the need to know when that student is registered.

Do we look at it directly attached to the registration?Even within the department? Salome Heyward: Okay. Students don't, you know, unlike employees where the

law says they have a right to confidentiality, there is no right to confidentiality that is owed to students under either the ADA or the Rehab Act, the rights that students have come under FERPA.

Anybody who has an educational need to know, you can share the information with, you know.

So if I am the instructor in the clinical environment and I'm accommodating a student, then I have a right to know what the needs are and that's the standards for students: Who's in the educational food chain who has a need to know?

If you're someone who doesn't interact with the student, the student's not in your program, not enrolled in your program, then arguably there is no need to know.

>>: But if, if for example in our department there are sections. So if the section of faculty ultimately at the end of every quarter need to make a determination of go/no go, satisfaction or not, those individuals who are sitting at that table, even though they don't have that student directly --

Salome Heyward: If you're a part of the direction of that student and the department of the program, you have a need to know.

Pretty much under FERPA, the Feds would go an educational member or a faculty member doesn't have the right to know if it goes to the qualified status of the student in a program.

>>: Does that apply then when I'm placing that student off site in terms of how much disclosure goes to that individual, because in talking with the AG on campus regarding a HIPAA issue, the facility is joined, so they are in essence adjunct faculty.

Salome Heyward: Right. But let's circle back to what we said before. Is it anyway related to the qualified status of the student?

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If it's not related to the qualified status of the student -- >>: Then no. >>>: But then we still come back to that we can just refuse to put them out into

the clinical situation without them (Inaudible.)Salome Heyward: Exactly. You're not even having the discussion unless it goes

to the qualified status of the student. And then if the student says no, you're not, you don't get to tell anybody, then if it

goes to their qualified status, then they're not in the clinical environment. JON: Yeah, and at the point -- sorry -- at the point that we're asking people in the

clinical setting to provide accommodations, that's their need to know right there.Salome Heyward: That's their need to know. Absolutely. If we're accommodating a student in that environment, then yeah, of course.

They're involved in that because they're participating and providing the accommodation. >>>: But then that still comes back to me that we can insist. By what you just

said, I would understand that we can insist or without the student's permission reveal to the clinical site in order to ask them to accommodate. I don't believe that, but that's what I'm understanding is what I'm hearing.

Salome Heyward: No, no. >>: If the student says don't reveal, then I can't place you.Salome Heyward: If the student says I don't want you to tell anybody and you, in

your judgment the student is not qualified unless they're accommodated in the clinical setting, and the student says no, I don't want you to tell anybody, then the student has a decision to make.

>>>: Mm-hm.Salome Heyward: Do you want the clinical placement or not, because in our

judgment you are not qualified to perform in the clinical setting unless you're accommodated. Then if the student says no, you don't get to tell anybody, then you have the right not to place that student in the clinical environment, because you've judged that the student is not qualified to perform without necessary accommodations.

>>>: I agree 100% with you, but -- Salome Heyward: Okay. Now if the student says, if you're going, the student

doesn't have an issue, student goes absolutely I need accommodations, that's the case we're talking about here. Absolutely you're accommodating the student in the clinical environment, then that person who is working with the student and as a part of that environment has a need to know. You're accommodating the student in that environment.

>>>: But then can't they also refuse to have me reveal to another faculty member on the same thing you're saying here, right, to the scenario that was just raised from the other side of the table, I would say no, that student can say you can't tell the other faculty member.

Salome Heyward: Educational right to know if they're a part of the faculty and the process.

>>>: They are part of a faculty and the clinical process. >>: It's the difference between -- Salome Heyward: It's the difference between FERPA and the qualified status of

the student and now we're mixing those two. Under FERPA, it's whoever has an educational right to know, and when the

student says to you, I need accommodations, here we go, FERPA says if they have an educational right to, to know, you have not violated the student's right to privacy if they

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are making an assessment and a judgment about the status of the student. Now when we're placing a student in a clinical environment and you engage the

student, and the only reason you would be engaging the student in this discussion is if you judged that the student needs to be accommodated in the clinical environment, and the student has communicated to you that I don't want anybody to know I have a disability. No, I don't want accommodations. I'm just going to wing it.

>>>: Yeah, I'm very clear on that and I've gone through that process with students.

>>: I think what we're saying is you can't say they have diabetes but you can tell them they need these specific accommodations.

>>>: That's not my question. Salome Heyward: Okay. So let's try to answer your question. >>: But it all seems to come down to if you need to put accommodations in place

to place a student in the clinic, then you have to reveal it. >>>: Right. I know. >>: She knows that. >>: If they're saying no -- >>>: She knows that. >>>: Why does it apply to a faculty who doesn't have a student in the class?

Why does that same rule apply to a faculty -- >>: That's what I'm saying. You've got that committee and you're saying without

the student's permission you're saying you have a right to reveal to that committee of faculty members, and I'm saying, why doesn't the student have a right to say no to that revealing also?

>>>: Let her answer. >>: I actually wondered, wanted you to clarify that because you're reviewing

what academic standards are in place to have progress. If the standards are in place, then it seems that the committee needs to know

that. If there aren't any changes in the standards, do you want to tell the committee,

this is a disabled student and now we're going to review the -- see what I'm saying? Salome Heyward: If the accommodations you're providing to the student are

reasonable accommodations, we're not quarreling or arguing about the accommodations and now we're all coming together and we're looking at the academic progress of our student, how they've performed in the academic environment, we're looking at how they've performed the same skills and the things that other students in the program have performed. On what basis are we either discounting or elevating based on the accommodations that the student received?

So my question would be, why are we discussing the accommodations if we're looking at judging the performance of the student if the accommodations provided are reasonable?

Group: Hmmm. >>: So it could be that case of the three-patient caseload vs. five, and so the

expectation is that you handle five from the very beginning and there's been a modification to that and that would be revealed to the committee, it seems to me they would need to know at least that the standard was different for this student or, yeah -- that may not be a very good example.

Salome Heyward: Exactly, we've agreed that is a reasonable accommodation, but how does it get us into a full-blown discussion of what the disability is and etc., etc. If we've already agreed what the reasonable accommodation is.

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We're talking about the performance of the student. >>: Right. JON: So in Nancy's committee, if it's talk about how the student is proceeding

through the program and there's been talk about an accommodation that's relevant, we don't need to oh -- it sounds like it's relevant to bring up there is a disability accommodation here.

Then that's the part that you could reasonably bring up under FERPA because you could make an educated decision that there is a need to know here.

And I think lots of people can make need to know decisions: faculty, staff, students, and what exactly is being shared too. It doesn't open up the -- and let me tell you about the student's documentation an whatever. It's consistently bringing up relevant information within the appropriate circles.

It's pretty difficult to -- Salome Heyward: When we put the, when we put the information out there, what

are we using it for? You know, the, the reason that you have a Disability Services Office is that they

look at the documentation and they go yes, the student has a disability and now we're going to engage with the academic folks and say what's a reasonable accommodation for this individual given the nature of the disability?

Once we agree on what the reasonable accommodation is and now our student is performing with respect to those reasonable accommodations, we're now making a judgment as to whether he or she proceeds to the next level. If we find ourselves now in that committee, you know, doing a full blow by blow on bipolar conditions and why did the student have their census reduced from three to five and all of that, we're probably going to be found in violation of the law, because if we do that, now what we're doing is we're probably penalizing the student based upon accommodation that we judged to be reasonable to begin with.

>>>: And that's the key.Salome Heyward: So if we are just judging the performance of the student, it's

about the performance of the student. So now if we're going to bring up the fact that the student has been

accommodated, we'd better have a good reason to put that on the table as we judge the performance of the student moving forward.

It is very much like testing agencies or the medical licensure board who provide accommodations to students to take the licensure exam and then wants to put a star next to the, to the score to go oh, but you got accommodated.

And the courts and the Department of Ed and Justice says that's discrimination on the basis of disability because if you've already determined it's a reasonable accommodation, then their performance should be the same as everybody else's performance. Let's move on.

So that, you know, so the manner in which we are having these discussions has to be free from discrimination and every time we put the disability on the table, we have to have a legitimate reason for why we put it on the table.

>>: (Coughing). >>>: Let's back up. What if we believe it's legitimate to put the disability on the table; however, the

student has a documented disability. They've been through the DRS department. They choose not to reveal and not to accept the accommodations or implement the accommodations.

So I have community clinicians who come into my classroom and teach with me.

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I might not think the student is successful in the classroom and I might know because DRS sent me a letter that the student has said no, I don't want to be accommodated, but can I tell my coinstructors to help me, because they're the ones directly supervising my student, so can I tell my coinstructors?

Salome Heyward: Why would you be doing that? Why would you be doing that? >>>: That was my point, because what you said before -- Salome Heyward: The student is saying to you, I don't want to be

accommodated. That student is no different than any other student that might be in your class

who might have a disability but no one knows about it. >>>: Okay. Thanks. Now we came back to my question that I asked a while

ago. >>: They're refusing accommodation; therefore they need to perform like any

other student. >>>: Before what I heard you saying is that we had a right to tell those

instructors who were coming to the table about the disability and -- >>: That's only if -- JON: Folks, I'm sorry. Salome Heyward: It's only if -- JON: We need to wrap up here too. Salome Heyward: Here's a better way to look at it.The information belongs to the student. The student gets to decide whether to share it with you and seek

accommodations. If the student chooses not to, then we don't even care. It's not on the table. We

don't discuss it. We treat the student in the way that we would treat any students, and there are many students that you'd probably, are probably in your program who have disabilities and no one knows about it. They don't disclose. We judge their performance in the way that we would judge any student's performance. Okay.

JON: Wonderful. Thank you, everyone, for that discussion. Thank you, Salome. Good to see so many folks. Oh, and we'll have the transcript and I also have an electronic copy of the

PowerPoints. It's a good loose guide to today's conversation. I think everybody should have my e-mail. Shoot me an e-mail. I can get that to you.

But I know our department sends a lot of e-mails so I respect that too. Thanks, everyone. >>>: Thanks, Jon. Very nice. Salome Heyward: Thank you.

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