For Students > Support Programs > Disability Resource Center > For Faculty > Legal > FAQs from the Chancellor's Office

FREQUENTLY ASKED QUESTIONS (FAQ’S)

(from the DSPS web site)

1. Are students with disabilities allowed to tape classes as an accommodation?

According to the US Department of Education, Office for Civil Rights, the tape-recording of classroom sessions as an accommodation for students with disabilities is required under Section 504 of the 1973 Rehabilitation Act and the Americans with Disabilities Act (ADA). The legal reference, found in the Code of Federal Regulations 34CFR104.44 (b) for Section 504 reads as follows:

   Sec. 104.44 Academic Adjustments (b) Other rules. A recipient to which this subpart applies may not impose upon handicapped students other rules, such as the prohibition of tape recorders in classrooms or of guide dogs in campus buildings, that have the effect of limiting the participation of handicapped students in the recipient's education program or activity.

   While students with disabilities who need it as an accommodation must be allowed to tape classes, they may be required to sign an agreement which indicates that the tapes will not be sold or used for any other purpose than their own education needs. Some colleges even require that the tapes be turned into the DSP&S office after the student has completed the class. A sample of such an agreement follows:

SAMPLE STUDENT AGREEMENT FOR TAPING LECTURES I, _____(name of student)________, agree that I will not copy or release  the tape recording or transcription or otherwise hinder the ability of ______(professor's name)______ to obtain a copyright on lectures I  have taped in _____________________(dept., course #, title)__________________(Student Signature)
__________________(Date)
  

2. Are colleges required to provide ADA related services to students with disabilities when they study overseas?

If a student with a disability is studying abroad as the part of a program organized and offered by a college or university, then the college or university must provide accommodations and services to make the instructional program accessible. If a DSP&S student goes abroad to study in a class(es) which are offered as part of the general curriculum of the college, DSP&S pays for the accommodations. If the student is participating in Community Service classes, then it is the responsibility of the college to pay for the services but they cannot be reimbursed by DSP&S. DSP&S (or the college if the student is in community service classes) would pay for the time in providing the accommodation only. For instance, an interpreter's fee for signing would be paid during class time activities, not leisure time. Also, payment for living accommodations for support service providers would not be required if it is not provided for other equivalent level staff participating in the program. In addition, required services under the ADA would not include those of a personal nature such as attendant care or transportation from home to school (unless provided to non-disabled students). These services would not be required if the student was attending school in the US. Because it may be difficult or impossible to provide full physical access in study programs abroad, program access activities such as moving classes or even carrying a student may be allowable. On the other hand, if a student with a disability is studying abroad on their own, not under the auspices of a college sponsored program, even if they are a US citizen, they are not covered by the ADA. Please note that Judy Schwartz of Santa Monica College is reported to be aware of a Law Review article which provides further information on this subject.

3. Can students who are not US citizens receive DSP&P services?

There is nothing in the ADA or Title V for DSP&S which does not allow services to be provided to foreign students who would meet the definition of the law as a qualified student with a disability. However, certain federal legislation, such as the Personal Responsibility and Workforce Reconciliation Act of 1996, may when fully implemented, restrict the ability of certain classes of non-citizens from receiving DSP&S services. To date, this legislation has not been fully implemented in California Community Colleges. Therefore, for the current time, students with disabilities would be able to receive support services even of they are not US citizens. Because the interaction of ADA, Title 5, and the federal law on the services to non-citizens is complex and still in a dynamic state, you may need to periodically consult with your college Legal Counsel or the Chancellor's Office for updates on the implementation of the federal legislation related to non-citizens.

4. Are service animals required to be trained and certified? Which animals are considered service animals and can a student with a disability always have one with them on campus?

We have asked the Americans with Disabilities Act (ADA) unit at the Department of Rehabilitation to assist us in researching this question. They have indicated that preliminary inquiries with the Department of Justice reveal that this is a national issue. They are gathering more information, but provide the following technical assistance.

First, service dogs or animals are not required to be trained or certified by a specific entity. Second, a variety of animals may be used by persons with disabilities to provide a service. Dogs and monkeys are the most common service animals. Third, service animals must be allowed to accompany a person with a disability who needs them to provide a service. This differs from companion animals who do not have the same status. There is some indication that animals may have been categorized as providing a service for persons with psychiatric disabilities in terms of security. However, with certain animals which a student may claim as a service animal, snakes etc. there may be a campus health and safety issue which, if based on credible evidence, may affect the ability of the animal to be on campus. We will provide you with more information as soon as it is available.

5. Scenario on priority registration and class enrollment limits:

An on-campus regular English class is offered to all students attending the college. The prerequisite requires: "Individualized assessment of reading and spelling skills." The catalog course description includes the following phrase: "Concurrent enrollment in a reading course is strongly recommended. May be taken four times for credit."

To be admitted into this class, all students must take a test and demonstrate low reading and spelling skills. Students are also required to meet individually with the Program Coordinator to receive a permission slip to enroll in the class. The Coordinator is now concerned that a large proportion of the students enrolled in the class are DSPS students and that these students are taking class space away from other needy students.

The Coordinator wants to limit enrollment of DSPS student in the class. The campus administration has also raised questions about the "Priority Registration" requirement saying that the college is NOT "required" to provide priority registration but MAY provide priority registration. Is a college required to provide priority registration to DSPS students?

A college is not required to provide priority registration to students with disabilities who are receiving services from DSP&S. However, many colleges and universities utilize priority registration as a method of providing program accessibility which is required by Section 504 and the ADA.If priority registration is not provided to DSPS students, what are the consequences for not providing this service?

Many students with disabilities who are receiving services from DSP&S have functional limitations which require some accommodation in scheduling their classes. Examples include students with mobility disabilities who need classes physically close together to reduce walking distance, students with health impairments who need classes scheduled in a block as an accommodation to stamina problems, and students with visual or learning disabilities who need taped books and materials and therefore DSP&S needs maximum advance notice to secure these materials which are required under the ADA and Section 504. In addition, colleges utilize priority registration for deaf students to try to voluntarily group students into the same sections for the most cost effective use of interpreters and/or real time captioning services. If a college chose not to offer priority registration to students with disabilities, it would still be responsible for providing the program access which students with disabilities need. Such access would need to be provided even if it was more difficult or costly. Given the examples above, the college would need to assure that policies and procedures are in place which assure that students can get their classes close together or in a block if needed as a program accommodation. Experience has shown that such procedures are difficult to maintain over time with staff turnover and other problems. In addition, the college would have to provide the interpreters for deaf students even if the cost was significantly higher because students enrolled in different sections. Further, the college would remain responsible for seeing that visually impaired students receive alternate media materials in a timely and effective manner. Therefore, while priority registration is not required per se, it is recommended as a cost neutral, effective way to provide the legally mandated program accessibility for students with disabilities. It should be noted that a college may make a policy of offering an early date for registration "priority registration" for all students with disabilities or all students served by the DSP&S program. The rationale for such a blanket policy includes the fact that many students with disabilities may need priority registration and the cost of individual assessment of need of this essentially cost neutral service would be an administrative burden to the college which is not necessary. In addition, other groups of students i.e. athletes or EOPS students are often also provided priority registration as a group. If However, if registration assistance is provided as a DSP&S service it must be done on an individual basis after determination of a student's disability related functional limitation which requires such assistance.

6. Can the Coordinator limit the enrollment of DSPS students into the class?


No, under section 504 of the 1973 Rehabilitation Act, it is illegal to set limits on the number of persons with disabilities allowed into a program or activity. Please note that the above scenario presents a problem unrelated to DSP&S. That is, colleges cannot require instructor permission to sign up for a class.

7. Can a DSPS student repeat the class past the 4 time limit?

A student with a disability, whether or not they are receiving services from DSP&S, may be able to repeat a class as a disability related accommodation. Repetition or extension of the time needed to complete a class are among the array of possible accommodations which may be required under Section 504 and the Americans with Disabilities Act. This determination needs to be made on a case by case basis. Please note that even if a student is allowed to repeat a class as an accommodation, there may be limits under Title 5 section 58161 as to the ability of the college to claim apportionment dollars or under Title 5 sections 55762-55763 for the student to receive credit and/or a grade for the additional repetitions.

8. College A has a student with a learning disability who is requesting the accommodation of the use of a calculator and a multiplication table in a beginning arithmetic class. The instructor of the class is adamant that the accommodations should not be allowed. In his opinion, the ability to perform the actual calculations is a basic requirement of the class. The student asserts that they can do the analytical work but that sheer memorization is a disability related problem for them. How should the DSP&S program, and the college resolve this issue?

The key issue which needs to be analyzed to come to an appropriate conclusion is whether the ability to perform the arithmetic calculations without the stated accommodations is a fundamental academic requirement of the class. If it is a fundamental academic requirement, then the college would not be required to provide the accommodation under either Section 504 of the 1973 Rehabilitation Act. or the Americans with Disabilities Act (ADA). Critical factors to determine this include: Is the ability to perform the arithmetic calculations with aids included in the course outline of record maintained by the college? If the ability to perform these functions, specifically without aids, is in the approved course outline of record, then the college may consider asserting that it is a fundamental academic requirement. It is not obligatory that they take this stance, but it may be an indicator of whether or not the function is a fundamental academic requirement. One caution to be made is that the course outline should have been reviewed in both the self evaluations required by Section 504 and the ADA to assure that all requirements listed are true fundamental requirements rather than traditional ones. In addition, the course outline should not be outdated when compared to current practice of the faculty teaching that class. If the ability to perform the function without aids is not listed, what is the practice of other instructors of the same class at the college or of instructors of similar classes or other colleges? If the practice regarding the use of aids such as a calculator and multiplication tables differs between instructors, it is difficult to assert that it is a fundamental academic requirement. It is important to note that a generalization about the use of aids as an accommodation should not be made across all classes in a given subject. For example, it may be a fundamental academic requirement to be able to perform the calculations for an arithmetic class but not for an algebra, geometry, or calculus class which teaches other aspects of mathematics. Another critical element in this scenario is the availability of the campus academic accommodation policy required by Title 5, section 56027. It is critical to be able to act in an expeditious manner when disagreements arise about accommodations. It is very likely that the student is in the given class at the time of the dispute and will be in a very difficult position if a timely decision is not made. It is important to note that this policy should be distinct from the campus grievance or complaint process required by Section 504 and the ADA.

9. If a student brings information that they are a Department of Rehabilitation client does that mean the college has to serve them as a DSP&S student?

A college does not have to serve a student solely based on that student also being a client of the Department of Rehabilitation (DR). DSP&S eligibility has a two part criteria, where the presence of both a disability and an educational limitation must be verified. Information from DR may provide verification of disability, but it does not on it’s own also establish an educational limitation. A professional in the DSP&S program must review the information provided by the student and also see what courses or activities the student will engage in at the college before determining whether or not the student also has an educational limitation. Even if the student has a disability it does not mean they also have an educational limitation.

For example, a student may have a documented learning disability in the area of mathematical reasoning. If while attending another college the student already completed all their mathematics courses, as well as any courses that would use the same areas of cognitive processing (such as chemistry or economics), then they may not have an educational limitation related to any of the courses remaining or any of the services/activities they will use while at the college. If that is the case, then this particular student has no need for DSP&S services and is not eligible because they current have no educational limitation even though they do have a disability. However, this will need to be determined by a DSP&S professional in consultation with the student.

In most cases, a student with a disability will also have an educational limitation, but just because someone has either a disability or an educational limitation does not mean they have both. Each student must be treated individually, and their disability and educational limitations must both be identified before they are eligible for DSP&S services.

10. What DSP&S services are colleges mandated to provide?

A. Because of the nature of serving students with disabilities there is no specific list of mandated versus non-mandated services.

Technically, no "DSP&S" services are required, because participation in DSP&S is voluntary on the part of each college. Colleges are governed by the Title 5 regulations regarding DSP&S only because they accept the DSP&S funds allocated to them every year. A college could refuse the DSP&S funds and not be subject to the requirements of Title 5 regarding DSP&S.

However, colleges are still subject to state and federal law regarding the civil rights of people with disabilities to be served in a non-discriminatory manner. State Government Code sections 11135-11139.5, Section 504 of the federal Rehabilitation Act and the federal American's with Disabilities Act all guarantee equal access to people with disabilities, and community colleges are subject to all of those laws.

Given all of that, the answer of what is "mandated" always depends on the disability-related educational limitation(s) of each individual student. You can never say that any specific type of service or accommodation is always "mandated", because there are some students with disabilities who won't need those services in order to receive equal access to the instruction, information, or programs offered by the college. For example, sign language interpreting for auditory information is a standard service that no one questions as an appropriate accommodation for people with disabilities. However, it is only "mandated" for those students, such as a deaf student, who cannot receive the information as it is originally presented unless they receive the accommodation of sign language interpreting. A student who is hard-of-hearing and can use an assisted listening device that provides the information as effectively as the sign language is not necessarily being denied a "mandated" service if the sign language interpreter is not also provided.

There is a slightly different answer regarding some services typically provided by DSP&S programs, depending if the question being asked is whether a service is legally required versus a requirement of receiving DSP&S funding. Two services that come up in such questions are Learning Disability assessment and High Tech Center instruction. Neither of these services is specifically required by state or federal law or regulation to be provided by colleges to students with disabilities. However, California community colleges have received increased funding in the past to address the assessment of learning disabilities and instruction in assistive computer software. Additionally, based on a federal Department of Education, Office of Civil Rights review of the California community college system and subsequent resolution agreement with the Chancellor’s Office, alternate media services (Braille, etext, large print, captioning) were specifically funded. So, while there is no direct legal or regulatory requirement to provide those services, there is a system standard and general programmatic expectation that has developed regarding access for students to such services, and in the case of alternate media and agreement with the federal government that such services will be provided at a higher level than in the past.

The issue of what is "mandated" must always be addressed on an individual basis, and consultation with district legal staff and the Chancellor’s Office is recommended.

 

Created: March 10, 2009 @ 10:58 AM
Last Modified: March 17, 2009 @ 01:04 PM

 





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