Are Your Ducks In A Row? Time To Check Your ADA Compliance

The original Americans with Disabilities Act was passed in 1990 and became effective for organizations of all sizes in 1992. The law was subsequently amended in 2008. The amended ADA broadened the law's definition of disability and expanded coverage to a broad range of individuals. Given the volume and complexity of the case law and regulatory activity the ADA has generated since its enactment and subsequent revision, organizations are wise to review the requirements of this far-reaching law in light of their own operations.

The following checklist highlights key areas for review and, if necessary, revision:

Does your organization have a clearly articulated and easily accessible policy statement concerning its ADA compliance?

The law requires that adjustments or modifications to programs, activities and tasks, as well as to facilities, be made so that individuals with disabilities may fully participate in those programs and activities. Candidates with disabilities must also be "otherwise qualified," that is, meet the same educational and performance standards as other candidates. Every organization should have a clearly articulated and easily accessible policy statement concerning its ADA compliance. The policy statement should be included with general policy information and be clearly identified on the organization's website.

The concept of equal access has reinforced the need to provide greater access to professional training and practice for individuals with disabilities. Publicity surrounding high-profile ADA cases has also encouraged many to examine and hopefully to discard prejudices about the capacity of someone with a disability to be a competent doctor, lawyer, architect, accountant or other professional. Paul S. Miller, a past Commissioner of the U.S. Equal Employment Opportunity Commission pointed out in a Wall Street Journal article a number of years ago that "disability is a natural part of the human experience and in no way diminishes the rights of pursue meaningful career..."

To insure that access can be provided without changing or reducing job requirements or professional standards, it is important to review and update job analyses and technical standards for the profession you license or certify. Be sure you have current, written standards for the minimal competencies required for a professional credential in your field. Also, re-examine the validity of the proficiencies measured by your examinations and the relationship of those constructs to professional practice. The commitment to accessibility, for both licensing examinations and professional practice, must be balanced with the need to maintain exam validity and professional integrity.

Does your Board or agency have in place a sound procedure for evaluating disability documentation?

Do you have printed and web-accessible procedures and documentation requirements for requesting ADA accommodations? Agencies can use one of several comprehensive guidelines used by major testing organizations, such as those used by the National Board of Medical Examiners, Law School Admission Council, GMAT and ETS or develop their own. Bear in mind, however, that documentation guidelines serve merely to aid you in gathering the necessary information to make an informed decision; they are not a prescription for decision-making.

Have you considered or made arrangements for consulting professionals in specific disability areas to insure that the diagnosis identified in an application is accurate and the supporting information is complete? The ADA requires that requests be considered and decided on a case-by-case basis. This means that using a "cookie-cutter" approach to reviewing documentation is incorrect and will likely lead to complaints and worse, to unfair treatment of all examinees. It is necessary to consider much more than test data on a score summary sheet or a diagnostic label from the treating professional. Remember that ADA specifies a "substantial limitation in one or more major life activities" as the defining feature of individuals covered under the Act. Therefore, it is important to identify professionals in various disability areas who can assist you in evaluating the nature and extent of an applicant's limitations in daily functioning and help you in making your determination of whether or not the individual is covered under ADA and requires accommodations for access to your examination or program.

Have you trained your front-line staff to appropriately respond to complaints about your documentation requirements or decision-making? Sometimes decisions which are inconsistent with stated policy are made in the face of tremendous pressure from insistent applicants and their advocates. Such inconsistent and possibly random decision-making opens the door to even more pressure from applicants and to complaints from the enforcing federal agencies.

Have you developed or considered developing alternative test forms to provide additional testing time and additional break time when necessary? Regardless of whether you deliver paper and pencil or computer-based examinations, you need to have enough flexibility in your test design to make adjustments for accommodating a wide range of physical as well as mental disabilities. For example, diabetics may require frequent breaks in order to monitor blood sugar or to eat. These activities should not occur in the testing room with all other candidates and exams should be constructed so that shorter blocks of items can be delivered. Individuals with chronic pain or multiple sclerosis are easily fatigued and generally require more frequent rest breaks. It is important to note that neither of these examples necessitates the provision of additional testing time; that is, there is no need for longer exposure to the test material; to provide additional testing time as an accommodation in these instances would be both an inappropriate match with the individual's functional need and unfair to non-disabled test takers.

Are staff trained about procedures for maintaining strict confidentiality concerning applicants' disability information and do they consistently adhere to a high level of confidentiality in their communication with interested third parties, such as spouses, evaluators and other staff? Are you informed about and prepared to use technological aids, especially those that are available for computer applications? Do you know what's available, where you can access various aids and materials, how much they cost or where you can borrow many assistive devices without cost? Advances in technology have made it easier to provide access to programs and examinations particularly for people with physical disabilities. For example, screen readers, screen magnification tools, various telecommunication devices such as free video relay service, web-based tools and the like have become standard equipment for individuals with disabilities. Your organization should be able to provide such equipment to allow access to your program or examinations.

Do you apply your policies and procedures consistently?

If your organization reviews requests internally, do you carefully document your review and decision-making process for considering disability requests as well as for determining reasonable and appropriate accommodations? There should be a clear paper trail demonstrating what was done through the process of considering of a request and making clear that the process and decision were consistent with stated policies and practices. You should be prepared to defend your decisions to show not only that you applied your stated policies fairly but that the policies themselves are consistent with the ADA.

Perhaps the biggest change the ADA brought to the testing industry since the law's enactment in 1990 is that management of requests for test accommodations has become a necessary cost of doing business. Periodic review of policies and practices can highlight the need for adjustments and minimize overall costs of compliance.

This article, written by Shelby Keiser, president of Keiser Consulting, originally appeared in CLEAR Exam Review, Vol. XIV, No. 2, Summer, 2003 and was recently updated by Ms. Keiser.


Email List Sign Up

Articles Small

“Your 'case scenario' method of relating real life situations was extremely effective and captured the attention of your audience. It was important that we were well represented. The program you provided accomplished that end.”
Past President/CEO
National Board of Osteopathic Medical Examiners