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Candace Cortiella: Back to these new regulations with regard to the examinations and courses that are associated with those examinations. When the Department of Justice issued these draft regulations back in 2008, they commented that through their enforcement efforts, they had discovered that requests made by testing entities for documentation regarding the existence of a disability and requests for a modification were often inappropriate or burdensome. I think you’ve just done a great job of articulating how burdensome some of them have made it in the history of students with learning disabilities. But do you think that these new regulations will actually correct the issues that the department had sought to address?
Jo Anne Simon: I think that the department has done a good job in revising its regulations. Being a person who has to deal with so many organizations who would like not to comply, or are making it difficult to comply, I think that in my heart of hearts, I would probably like it to be a little stronger. On the other hand, I think they did a very good job of being very reasonable in their approach to a situation that has been, on the whole, unreasonable in terms of the kinds of burdensome requests.
When I look at their direction for some of these organizations, in what you have to give them to demonstrate disability, there are some 30 pages of instructions on how to make sure you comply. And if you have a learning disability and Attention Deficit Disorder and perhaps an anxiety disorder, you’ve got three sets of requirements to keep track of and to massage.
By the way, if you have an anxiety disorder, you’re going to be so anxious about looking at all that stuff you’re probably just going to turn off. If you have a reading disability, why do they give you 30 pages of instructions to read? Just to make it difficult? There’s no need for that kind of level of specificity.
In many cases, they require particular types of tests and then respond that those tests aren’t very good. Well then, why are you suggesting them? In other cases, organizations require certain types of tests for psychological disabilities that any psychologist will tell you, you don’t need give that type of test to show that type of disorder. That’s ridiculous. So it’s costing people more money. Again, they’re raising barriers by their requirements.
We’ll see once the Justice Department regulations are effective in March. It’s very clear from the ADA that proving a disability wasn’t meant to be an extensive analysis. That language, “was not meant to be extensive analysis,” is in the statute. There’s no question what the statute says. The regulations basically tell you how to enforce the statute. The statute itself says it’s not supposed to be an extensive analysis.
So with these pages and pages of documentation requirements, one could argue right there that they are requiring an extensive analysis that Congress says isn’t needed. So I think that even before March of 2011, it would behoove organizations that have to comply with the law to take another look at what they’re doing and make some judgment calls with regards to common sense and indicate a common sense way, which is another word that’s used in the statute of determining whether someone has a disability, giving courtesy to those professionals who have actually evaluated the person and not fighting everything so much. It would make sense for everybody that they would be protected by the fact that somebody has submitted documentation of having a disability. That should be the end of the discussion.
I hope that by March 2011, if they’re not doing it until then, they will take this very seriously and indeed give considerable weight to the evidence and to the opinions of the treating clinicians who have written up these reports.
