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STEVE GORDON: My name is Steve Gordon. I coordinate civil rights program at U.S. Attorney’s Office Eastern District of Virginia. Most of the work that I do is ADA enforcement. I occasionally do other things English language learner case way Arlington public schools. It's public we have settlement agreement. I've done other civil rights work as well. I am very interested and high stakes testing area. It is a niche area of the ADA. A lot of people who do ADA work don't necessarily realize this is separate regulatory provision and statute. When I got my first case in this area I did really deep dive I went and I found myself very passionate and wanting to learn about all this.
What I'm going to do today is kind of do walk through and I got to do disclaimer that opinions I express may not be DOJ views. We got that over with. All right. I have disability myself I need help of PowerPoint to keep me on track. When you see me doing that I'm going to give you that disclosure. My PowerPoint divided into two areas, one kind of over Vaugh of the law in this area. Then I do deep dive into the regs to people have to take home you can take this with you. Because I've seen so many cases where the judges are not dealing with actual regulatory language because it’s not being called to their attention. Someone has the gut feeling that this wrong. And then there's other great cases Dr. Ramseys case which I'm going tubing about is one of those. And Mary knows there's others as well.
Okay. So, I'm going to give you summary of key concepts talking about ADA regs, testing accommodations. The ADA amendments act incredibly important in this space, okay. Because of the definition of disability. In the files that I have looked at in my investigation, so many of the testing entities are saying you don't have a legally cognizable disability. They don't put that that fancy way they say you are not disabled under ADA.A lot of times they are relying on the pre ADA amendments act definition which they don't, almost like that didn't happen. And there are people out there, and attorneys, unfortunately, out there, who don't like the ADA amendments act and don't like how this was amended and fixed. And they are still fighting it now in the courts pulling wool over the eyes of a lot of judges. All right.
So, I'm going to talk but, might be.
[ Laughter ]
Attendee: No, no, in our case Mary did a great job of pointing this out to the district judge and they went on citing same cases great targets to shoot at.
Attendee :I can save this for later.
STEVEN GORDON: Please, these are lawyers who lived through these.
Attendee: Their lawyer lobbied Congress against Americans with disability amendments act then lobbied for regs that met their needs not students lost there too. Then they decided we'll keep doing it and the student who don't have time, money or lawyers, will win off backs of couple of them. So, then these exact same lawyers literally the same person created PowerPoint and went to their annual training, we have PowerPoint they literally trained all outside consultants on the wrong law as if at the act never happened. They said ADA amendments act restricted number of people that would qualify as having disability.
Then these consultant went out to all testing entities same people who work for all same ones and they have vastly denied accommodations and we have stats on some that show denials of accommodations in some cases above 85% some cases above 90% of time they denied accommodations.
STEVEN GORDON: Another big issue I saw in the files is that test taking is not major life activity under plain language of the statute. We'll talk about that. I'm going to also talk about helpful technical assistance. What I found is a lot of times people who don't have a lot of money will find DOJ technical assistance. Send it in and testing entities you still disregard even though DOJ technical assistance put out just for purposes of people being able to do what they do.
Attendee: They say it's meaningless.
STEVEN GORDON: Guidance as opposed to, it says technical assistance.
Attendee: Understandable.
Attendee: I would be, too, I am right now.
STEVEN GORDON: So, let's talk about few critical concepts high stakes examination results should accurately result aptitude of candidate and not disability, that's in the regs, this is summary of regs this page. Testing entities give considerable weight not k considerable weight to documentation to past accommodations in testing situations. Goes you know to IDEA, IEP's, Section 504's a lot of different things, right. Psychometric testing, this is testing where you get score at the end. That can't capture all disabilities. And Justice, qualified professional to make clinical judgment that's where they evaluate how person does things, right as opposed to looking at test results. Entities that receive documentation by qualified professional who made individualized assessment of applicant should generally accept documentation and provide accommodation. Period. End of story, right.
A lot of people have past accommodations and they have qualified profession. Those two things should be guiding light, for the Robert Bangor Group, right. So let me give you for concepts reports with experts with familiarity should take precedence from reviewers from testing agencies who never met the person and re analyze all materials, right, that's not how it’s supposed to work.
Attendee: Are you open to questions or comments along way or save them?
STEVEN GORDON: Please, we have two other experts here in the room.
Attendee: We're not really well controlling ourselves.
Attendee: That's okay. I'm actually doing pretty good job of controlling myself. We'll see how long that lasts. So reports from experts with personal familiarity, so, are you talking about psychologist that does one-day evaluation with the person who never met them before, never known them since, is that the expert you are talking about.
STEVEN GORDON: Doctor Ostermann, I know you are a psychologist yourself. Are you licensed?
Attendee: Not anymore.
STEVEN GORDON: Okay.
Attendee: Does that matter?
STEVEN GORDON: It could. Particularly, if you are reviewing the evaluations for identity. Because, qualified professional might be someone who is licensed. Right?
Attendee: Could be somebody who is not licensed psychologist but knows the person well.
STEVEN GORDON: Okay. Well, well, I will be clear with you that is a possibility, yes. Because again, you're going to see clearly what the law requires, okay. And that's very important.
Attendee: Trying to understand who you are calling an expert.
Attendee: Well, it, we'll go through the regs on that as well. But someone who is licensed educational diagnostician, they are not medical doctor, right, they are also not someone who has Ph.D., they may have master's degree.
Attendee: They may or may not have personal familiarity with candidate.
STEVEN GORDON: Can be someone who a person has gone to for an assessment. Okay.
Attendee: Okay. So, again, you're calling expert with personal familiarity somebody who has seen them one day out of their lives.
Attendee: That's a possibility yes.
Attendee: As opposed to somebody else who might know them really well like educational therapist or occupational therapist, physical therapist people who didn't make diagnosis on that one day who have lot of personal p faculty mentor.
STEVEN GORDON: I'm also saying you have to look and give weight to the history. And that's not just guidance. That's regulatory.
Attendee: I'm fine with that. I'm fine with that.
STEVEN GORDON: Okay. Good. Okay. So, Congress intended for definition of disability to be construed broadly. All right. Very important. Hope you are fine with that, too.
Attendee: Yep.
STEVEN GORDON: Individuals with disabilities who need accommodations should have the same access to exam locations and times, All right. I'll tell you that one occasionally comes up. Not as big of an issue. It's worth talking about being in regulation. So ADA includes specific language on examinations and prep courses. This is where a lot of people kind of fall down in terms of lawyers who aren't familiar with this area. You got to look at section 309 at DAD codified at 12189, right. You have to look at the regs, all right. These regs, by the way apply across the board apply to The Impact of Ableism entities as well if you look at the ex by section analysis they say this is the guide that you are supposed to use and they talk by the bar exam. Very important.
Section by section analysis is also really important, okay in terms of the regs, understanding, section by section analysis went through the same rigorous, review as the regulations themselves. And then, of course DOJ, technical assistance publication, very important. DOJ put that out to help people understand this stuff. And it really largely echo the regulations.
MARY: And the testing entities represented by the same individual wrote to DOJ and asked you to issue that, which you did and they now say it has no value.
STEVEN GORDON: How about, huh. Other part of ADA that often arise in the testing context, ADA's broad definition of disability including congressional findings that led to Congress to pass the ADA amendments act and rules of construction. ADA regulations discussing definition of disability. Very important. And you got to look at that, too. Section by section analysis, which talks about high stakes exams. And how important it was to Congress to make sure that disability was broadly construed. Especially for people with ADHD and dyslexia, very important.
And the requirement covered entities provide services. This is in both 309 you can also look at the -- then for people with hearing disabilities. And also speech disabilities. So, very basic importance. If you look at the beginning of the ADA a lot of lawyers overlooked findings, congressional findings. Congress found that census data and other data points explained and have documented people with disabilities as a group. Nations goals regarding individuals with disabilities are to ensure equality of opportunity, full participation, independent living economic self-sufficiency for such individuals.
This means someone who spends hundreds of thousands of dollars for a degree, once they get to that licensing point last stage, right, they, under ADA are protected, right. Very important. Licensing and certification tests are included in this. Right. And it’s not just this that proves that, a lot of other things. Test taking. Test taking is major life activity. Justice sigh da my your, wrote in modern era test taking begins first gray, standardize test, both in school at work I find test taking within am bit. Test taking is not major life activity. Not just Justice Sotomayor.
Exams administered by private state or local, application licensing certification for secondary or post second tear education, professional or trade purposes, are covered by ADA testing accommodations pursuant to ADA must be provided.
Licensing and certification are included. Examples of high stakes high school equivalency exam, Thomas Jefferson high school Fairfax has entrance exam. That would be included so charter school type things. While some institutions higher learning of bachelor's degrees no longer requiring candidates to take SATs, many still do, reading New York Times reported more or going back to that again after ( ) grad schools require examinations all those required. All of us LSAT S. Candidates need to take examination.
Examinations for such licenses or certifications covered by ADA. Bar exam. Covered by ADA medical professions including specialties. Mental health professionals, accounts. Certified public planners. Financial planners, teaching certificates. All of these. This is not meant to be exhaustive list. If you look in my state, Virginia there's a huge number of professions, require certifications. PTSD, very important someone who is hyper vigilant gets distracted by hypervigilant they may need testing accommodation.
Physical disabilities including tremors. Someone who has hard time writing into the bubbles or hard time reading because their head goes back and forth, those types of things are going to be disabilities. Because they impact major life activity. And you may not be able to test those, right, exact way but as justice Mayor said don't need a test for everything. Someone here from the other ADA American Diabetes Association. Very important when someone's blood sugar shoots up or goes away down, they're going to need time to get concentration back. Not immediate when someone takes insulin can you tell us from ADA perspective how long it takes.
Attendee: Depends on the person.
STEVEN GORDON: Individualized assessment. Very good NIH has interesting information on this I've done a lot of diabetes cases over the years. It can be anywhere from 20 minutes to an hour before a person's brain gets them back to where they need to be. You have to listen to their doctors and what they say, it's not some one size fits all we'll give everyone with diabetes 10 extra minutes, 40, whatever. So, let's.
Attendee: If you can get the doctor to articulate. Note saying somebody has diabetes doesn't tell us anything.
STEVEN GORDON: It may not. However, then you need to ask for more information or alternatively.
Attendee: That's what we do.
STEVEN GORDON: Alternative you have to accept their statement because students statement how long it takes them is valid information. Another theme they'll be this currency requirement some testing entities have, we need to know what happened in last three or five years. Most of these disabilities are lifelong, and they don't change over time. People may learn self-accommodation, but self-accommodation do not, in any way disqualify you from getting an accommodation from the entity, very important concept.
Attendee: The entity has been known to argue that well, yes.
STEVEN GORDON: That is legally incorrect right.
Attendee: Yes.
STEVEN GORDON: Just because someone is successful in some endeavor may be Nobel Prize winner want to go back for different type of education, and that doesn't disqualify them from protections from ADA either. So, let's talk about exact provision this is language from statute. Any person that offers exams courses related to applications test or licensing, certification get that licensing and certification right there in the statute, or credentialing for second tear or postsecondary professional or trade purposes offer such examinations or courses in place and manner accessible to persons with disabilities or offer alternative accessible arrangements for individuals. So, very important.
Congress intended professional and trade opportunities to be covered by section 309. Legislative history of relevant provisions of ADA sometimes referred to section 309 explains this provision adopted in order to assure persons with disabilities are not foreclosed from educational, professional or trade opportunities, because examination or course, is conducted in an accessible site or without accommodation. Obviously building with stairs is going to be a problem but accommodations are also important in this space. ADA regulations explain testing accommodations provided to best ensure that examination results accurately reflect individual's aptitude rather than individual's disability.
Another very important concept and Mary it is great to have you here. The best ensure standard, right, that means, it really has to reflect the person's aptitude I rarely see when I go through files that's taken into account. So, this is what the reg actually says. Entity offering, must assure examination is selected administered as to best ensure when examination is administered to an individual with a disability that impairs sensory manual or speaking skills. Examination results accurately reflect the individual's aptitude or achievement level or whatever other factors the examination purports to measure. Rather than reflecting individual's impaired sensory, manual or speaking skills. Except for skills. Most professional and certification tests they are not testing those factors.
What they are testing is knowledge. Do you have the knowledge, when I took the bar exam, do I have the knowledge of the law, okay, when you take medical type stuff they want to know, do you have the knowledge of the medicine? Sensory skills a lot of people get hung up on this one, right. DOJ filed letter brief in case called rod den versus American board of pediatrics that explained disability that impairs sensory skill tan impairs physical neurological or cognitive processing of what individuals sees, hears, touches, tastes, smells. Includes not only disability to see also cognitive processing to identify the image store, image memory associate image with one's knowledge. What does this boil down. How your brain processes that. So that is part of what this REG is saying, that is dyslexia, right the word, atomicity isn't there. Someone with PTSD not able to neurologically process what they are seeing because they are having hypervigilant.
So the best ensure standard not the same as reasonable accommodation, a lot of entities get this screwed up, too, right because everyone familiar with reasonable accommodation from title 1. Standard doesn't appear in 2 or 3 only used in 1 the employment.
Attendee: Actually I see reasonable accommodation standard at a lot of universities.
STEVEN GORDON: I understand. Sometimes Department of Education OCR uses that language w I know it's swapped out some times. Accommodations can include many things such as extended time in private testing rooms. And very important, private testing rooms means just that, when ( ) put you in front of check-in area everyone is checking in you are trying to take the test, right. That's not the quiet private testing area. Talking about Prometric, there are others.
Attendee: They are right down the road.
STEVEN GORDON: Prometric are right down the road. Extended time specifically mentioned in the regs. This is important one, required modification to examination may include changes in lengths of time permitted for completion of examination and adaptation of manner in which the exam is given. So, very important. Similar to a ramp, this is how I help people understand dyslexia, someone with diabetes this could fit them as well may gain access to complex texts if permitted time required to slowly decipher each word manually. Thus extra time is similar to ramp people get ramps.
Attendee: There are very few, if any, standardized test that are validated as time limited as time limited being part of what is being measured.
STEVEN GORDON: If testing someone's knowledge not like them sitting there extra few hours going to cause them to suddenly know the material, right.
Attendee: If you have to answer and when you give somebody more time to answer the questions, it doesn't mean they are answering different questions he are answering the same because of disability they need more time to do it.
STEVEN GORDON: Right.
Attendee: That's variable from person-to-person.
Attendee: Can somebody tell law professors that people who don't have disabilities, cause a lot of them do literally run you right into the very end.
Attendee: One of the first things I learned as a teacher give eight second response time wait at least eight seconds after you ask your question before you start calling on students to let them like process it and respond and decide whether or not they want to. For law professors less than three seconds.
STEVEN GORDON: That may be pedagogically flawed way owe doing what they are doing. Auxiliary aids and services there's other sections that deal with this is this specific language private entity offering examination covered [ reading screen ] if it's driving test at the person is blind, okay, that's not going to make sense to give them auxiliary aids and service, I'm talking about driving a car, truck, there's a lot of cases around people who are deaf driving trucks that's okay different when someone is blind, they shouldn't be doing that.
Attendee: Good example we see all the time somebody who instead of taking the standard written test they want to just discuss the questions with the proctor.
STEVEN GORDON: That is valid. Discussing it, someone who has dyslexia may also have issues with writing stuff down reason there's others disabilities.
Attendee: What if the test is 15 questions and the person says I can only take the first five.
STEVEN GORDON: You are asking me very specific hypotheticals I don't know what the test is for.
Attendee: Fundamental alteration.
STEVEN GORDON: That is o but I would need to actually see the test to know more about it.So, may include taped examinations recordings of the exam interpreters other effective methods of making orally, braille or large print examinations and answer sheets or qualified readers for individuals with visual impairments learning disabilities very important. Qualified reader term of art under ADA. And if you are giving medical exam, you need to have someone who knows how to say the words and not just someone who is thrown into the situation. I've seen people that happened before. Other thing is just because someone is like say a nurse, it doesn't mean that they can read the specialty in cardiology. I'm going to throw stuff out there. Latin terms lawyers we have a bunch of Latin terms we learn in law school, right. You got to know how to read them, how to say them. So people get a fair reading.
Transcribers, getting someone who can write down answers for the person this possible accommodation.
Attendee: A lot of that is going by the window being replaced by assistive technology.
STEVEN GORDON: Can work, technologies is double-edged sword for people with disabilities can really help.
Attendee: Young people are asking for that.
Attendee: It's ever evolving thing technology is better than it was 10 years ago.
Attendee: Absolutely.
STEVEN GORDON: Auto generated when someone is speaking that still has issues, captioning we need life captioner here because of the issues, I hear from deaf community particularly I watch it, too, if you ever watch auto generated,, I've done it before, I've been watching it, it can be, so bad.
Attendee: Like nursing specialty exam put that through Jaws and see what happens may not be what you want.
Attendee: Yeah, exactly. Exactly. All right. So, equally convenient times and locations I talked about this, this is just regulatory language, right. And it's important, right, so, if let's say pro metric we're going to shift everyone who needs an accommodation to one place in the state that is five hours away from most people. That ain't going to cut it.
Attendee: Which, of course, was big problem during the pandemic.
STEVEN GORDON: Yeah, also taking test at home very complicated pandemic created a lot of other issues. And same thing with, if you offer it four times a year you got to offer it for people with disabilities four times a year. So, accessible facilities we talked about that, too, that's a lot of the physical access stuff. So, courses, very important, not just the exams, and there is some cases on this, I have settlement agreement with professional publications which is now Caplan bought them up. They were providing a course for the professional engineering degree, right. There's license you can get in some states or all states actually to be licensed engineer. They refused to caption the course for people who are deaf, all right. That's bad. Can't be that way. We have settlement agreement with them they had to pay compensatory damages and make equitable changes.
Documentation requirement this is big one in this area. All right. The regs say any request for documentation such documentation is required reasonable and limited to need for modifications. This is why past accommodations is important comes under ambit of reasonable documentation. People have limited funds. This shouldn't be turned into you know some kind of hoop you got to jump through with a lot of money, that's what the regulatory writers were trying to do here. You got accommodation for GMATS or MCATS you get same thing as you go through the system same they know a lot of times when you have IEP accommodation, evaluation paid for by the public schools. Those can work also.
Attendee: And sometimes a problem because testing he know at the will say well, such and such ADHD, dyslexia, other things is lifelong disability and how could you be disabled because you got, in medical school, so you couldn't possibly have been disabled when you were five and therefore, sense you weren't disabled when five --
STEVEN GORDON: That's not taking into account self-accommodations, and people have learn adaptive skills and that's covered by the regs also, they employed those, a lot of resourceful people out there, who do that.
Attendee: I once had client who among other things was actually homeless as, he never had accommodations formal accommodations. Actually, homeless when he was a child. He actually went back to the school district where he lived when he was 13 and school district didn't exist anymore, something like that. Fortunately, we got pass that, that used to be a standard thing. My very first MBME client you he got into medical school, no evidence that he had a disability until you were in medical school so you don't have a disability.
STEVEN GORDON: What I will say regs specifically talk about people who haven't had previous accommodations that, not being dis qualifier there's a lot of reasons including economic, right. We don't want to compound the economic issues and you know, if you look at some schools in poor places, there's less kids who have IEPs Section 504 who...
Attendee: New York Times had article it's huge issue.
Attendee: Some people when they were kids don't have accommodations for cultural reasons because.
STEVEN GORDON: It includes a lot of cultures you know I've heard and I don't want to stereotype, Asian, African American, not supposed to say I have a disability and I'm from Jewish culture when I was younger a lot of people that was stigma if you are identified that way.
Attendee: Somebody who was told teachers expected that he had disability when he was middle school or high school, I don't remember. Talked to the parents and said how can you say my incredibly smart child has disability so they didn't --
STEVEN GORDON: They didn't do anything.
Attendee: Also not taking into consideration advances in science and technology.
STEVEN GORDON: Excellent point.
Attendee: Mental health, especially this women being diagnosed --
Attendee: Autism, great I just did presentation, I learned autism rates skyrocketed. It was like one in several hundred and now it's like one in maybe 40 or 39 of kids. It’s another important sensory issue people need private rooms that kind of thing. But folks are getting better at identifying people because of advances in mental health and other things.
Attendee: Cause we're not just looking at studies that were done on little boys any more.
STEVEN GORDON: Right, when I was younger, a lot of this didn't exist we didn't have ADA, when I took SAT's and other things it didn't exist. So, it's important. And IDEA hasn't been around forever either. All right. So, that's the documentation. Let's talk a little bit about why, this is part of section by section analysis. This regulation, okay about reasonable documentation based upon DOJ's experience in reviewing the issue. Okay. So when they wrote the regs spent a lot of time looking at this heard from stakeholders. And D OJ through enforcement work, another place they learned, this is part of the second round of regs so, they are talking about that.
They determined that testing entities routinely making common errors, in reviewing testing accommodation requests including making document requests often inappropriate and burdensome in violation of section 309 during rulemaking process commenters indicated complying with documentation request imposed by testing entities is frequently so difficult and negotiations over the, so prolonged test applicant for go taking the test entirely. Okay. DOJ recognized such result constitutes denial of equal opportunities offer equal treatment in examination setting for persons with disabilities. This is why we have the reasonable document and it’s supposed to be not very high standard. Supposed to be low standard the documents.
Testing entities must give weight to past testing accommodations. I talked about this. This is dense reg written in dense way. Because so important and they want to get it right. I don't have it all -- not important stuff that I left out but I wanted to get to essence. Any private entity offering examination covered by you this section must assure when considering requests for modifications accommodations or auxiliary aids or services entity gives considerable weight to documentation of past modifications, accommodations, exhilarating services in similar testing situations. If you took standardized test with multiple choices, like the MCATS then you have another one like the bar exam or
medical exam, those are similar testing situations.
Attendee: But MEME's favorite thing used to be to deny accommodations on the medical boards because somebody had taken MCAT without accommodations there was variety of reasons but they are different tests.
STEVEN GORDON: I understand, there's another regulation that deals with that there two of them one talks about people who are successful, doesn't mean not entitled to accommodations other just because you didn't get accommodations in the past doesn't mean you are not entitled to it let be clear. I understand they were making legal mistake.
Attendee: That's what a lot of bar exams are doing right now as well requiring tests be done within three years or something.
Attendee: That's the currency issue which is a problem lifelong type of issue. That's slightly different than not having it, that's currency s currency is problematic.
Attendee: If you didn't have past accommodation you don't spend your fortune to go get that exam re updated they'll flat out into.
STEVEN GORDON: I understand that's a problem. It is a problem. So, this is the regulation on this particular issue about considerable weight. I've seen case law Ramsey case was one, which you handled where they said, not only didn't they consider, give it considerable weight doesn't look like they considered it at all. That's a problem. A lot of entities are doing that.
Attendee: I think similar testing setting though is, or some people getting hung up, you can make the argument LSAT and bar exam.
STEVEN GORDON: They are similar multiple choice tests.
Attendee: Eighth grade algebra test.
STEVEN GORDON: I would want to see evaluation of the person and what was done because a Section 504 or IEP can be the predicate for this as well. And we're talking about reasonable documentation, it's not just similar test, it could also be IEP or Section 504 and as a result of that, they said you should get extended time. That's a different part of the reg and different thing that we're talking about.
So, here's what the department said in section-by-section analysis. Department's history of enforcement has demonstrated recent history of passed accommodations critical to understanding applicant’s disability and appropriateness of testing accommodation. So, very important.
Attendee: This gets back to what I was saying about recent history, eighth grade algebra test.
STEVEN GORDON: We're talking about different part of the reg. We're not talking about this reg, so don't conflate mixing it. So, the drafters of regulation explain why past accommodation language was included in regulations, this is very important. All this is public on ADA.gov you can find all this. New regulatory language clarifies [ reading ] doesn't have to just be, see there's an or there, right. Very important. [ reading ] I don't think I have the slide in here there's another slide that talks about rigor of IEP process and rigor of Section 504. A lot of public schools make it hard for people to get these. So, that rigor, that legal rigor shows that those two are important.
Attendee: Some public schools make it really easy.
STEVEN GORDON: That might be the case.
Attendee: Especially wealthy districts.
STEVEN GORDON: I'm going to say Fairfax is not one of them it's a very wealthy district.
Attendee: Chicago for many many years, they make it real easy.
STEVEN GORDON: But people doing this, those who are reviewing test, not about re analyzing what others have done and second guessing. Even if someone has that suspicion about it, testing entities that's not what they are supposed to be doing. Here's example of Section 504 plan. It is going to be elementary or secondary school, where student with Section 504 plan [ reading ] that goes to the question you are asking, very important this is DOJ's position on this.
Attendee: And because this was a big deal on the Ramsey case and some other cases I've been involved in, different from what you are talking about, there are plenty of people who had informal accommodations.
STEVEN GORDON: Agreed went to private schools IDEA doesn't apply or out of the country.
Attendee: They went to private school, they were in different country or they were just in different time or different place where people just handled these things.
STEVEN GORDON: Informal accommodations run, too regs recognize that. Several accommodations are part of that also.
Attendee: At least in district court in Ramsey case a lot of discussion about that in district court decision.
STEVEN GORDON: We were, very important concept a lot of people who don't recognized as having these issues teachers say I kind of see you have a problem I'm going to give you this accommodation. That's important, too. Let's talk about Ramsey, all right. District court in Ramsey found that NBME ran afoul of reg I just talked about. Which requires when considering requests for accommodations testing entity give weight.
[ reading ] it does not appear from the record from MBME gave any consideration much less the weight required to Miss Ramseys past record. We have expert on Ramsey case here. So, courts followed DOJ's regulation and guidance and given weight to test takers past history of documented accommodations factor supporting finding that he or she has disability under ADA including for healthcare licensing exam. So, again that's Ramsey versus national board of medical examiners. Cites favorably.
Attendee: Her case because K12 no formal accommodations had accommodations starting in college and through medical school not for the MCAT for various complex reasons.
STEVEN GORDON: Just because someone skips over it for something doesn't mean that that could be held against them that's what you are saying. [ reading ] we talked about ADA, this is across the board in AI discussion earlier talking about individualized a assessments. [ reading ] that goes back to is one day assessment enough. The answer is yes. [ reading ] so, very important here, this is not meant to be really high burden, okay. And that's how DOJ has written this and it follows the ADA's idea that disability is a low threshold.
Attendee: So in Ramsey case they tried to characterize our expert as somebody who had just tested her and didn't really know her so forth. But, the NBME admitted he did correct test scored correctly, and they just said we don't agree with his interpretation.
STEVEN GORDON: Re analyzing those test results is not the role of the testing entities folks who are looking at the accommodations. That was, Ramsey case, they said that. And I mean they also said that the person who interviewed her, they credibility determinations can be made that was part of their decision I saw that. Very important.
Attendee: One of the concerns if you could go back two slides actually about this individualized assessment. I guess my concern is that if we require an individualized assessment are people going to interpret that to mean I got to pay four thousand dollars, like you were saying for this individualized assessment, what if I can't afford that.
STEVEN GORDON: Great question. And the answer to that is that it's not the only way to meet documentation requirement. These are individual ways of doing it. Individualized assessment by professional is one way. But I'm, you don't need scientific or medical evidence to meet documentation requirement. What regs talk about is statements by the person supposed to be low standard.
Attendee: Requires individualized assessment that doesn't mean four thousand dollar evaluation.
STEVEN GORDON: This correct.
Attendee: Broader interpretation.
STEVEN GORDON: That is correct because of other language about not needing scientific or medical evidence. We talked about this slide already. Here's what the third circuit said again Ramsey case. [ reading ] so Ramsey it was someone who re analyzed the materials and that is not sufficient. It has to be this type of,.
Attendee: Who admitted he did all the right tests and scored them correctly, he just didn't agree with his interpretation.
STEVEN GORDON: District court rejected outside consultants re analyzing results offer numerous diagnostic tests administered to test taker. NBME did exactly what [ reading ] if you see entity spending all this time, you are not disabled, you are not disabled, right, that's not what they are supposed to be doing. Reports from experts who have personal familiarity should take precedence. [ reading ] That means watching the person not just the test results.
[ reading ]
So, when you get test score people are saying that's objective measure be watching you what you are doing that's somehow subjective both Justice Sotomayor wrote [ reading ] qualitative evidence deserves respect. This means not numeric evidence, right. In addition, the department does not agree with assertions made by testing educational entities that testified of testing in grades is objective therefore should be weighed more heavily. While [ reading ]
Very important. We see test results 70% that's it. That's not how it works. [ reading ] again, numeric test is not end all and be all. [ reading ] someone has diabetes endocrinologist to look at it not someone who doesn't have that background. Very important. Similarly, someone who has PTSD, okay, you got to get someone who knows what they are doing, someone who has movement disorder.
You got to get someone who knows that for the testing entity. Very important. Right here in the DOJ materials.
Attendee: It's going back to this medical model of questioning diagnosis I think is problematic.
STEVEN GORDON: What DOJ stuff is.
Attendee: What you just said somebody with diabetes we have to get our own exert to check person with diabetes to see if diagnosis is correct.
STEVEN GORDON: Right, what I'll saying is that is if you are going to dispute what the person is asking for that's what testing entity has to do. They can say you got qualified professional. And that's enough. And that's the way, two big things here, right previous accommodations, that's one big one, another one is you got qualified expert person has internist or endocrinologist. If entity is going to question things, they have to have people who are qualified in that area, right to question it. I'm not saying that they need it to review it, because if they are following what DOJ is saying and simply using the qualified experts professionals views that should be the end. They don't need to go to anyone else.
So many [ reading ] we're going to go here. Disability means physical mental impairment [ reading ] Know that's what ADA amendments act, to say to the courts you are getting this wrong. And it made ADA --.
Attendee: Bipartisan support. There are two words don't often hear together.
STEVEN GORDON: Made important changes to meaning and interpretation of term disability in ADA in order to effectuate Congress' intent to restore broad scope of ADA by making it easier tore individual to establish he or she has disability. [ reading ] very low floor. This is in congressional record. [ reading ] Congress focused on this very area when it passed Amendments Act. [ Continues reading ]
[ Adjourned ]