DAIS NEWSLETTER, Volume V, No. 7/8, JULY/AUGUST, 2001

Part II

+=+=+=+=+=+=+=+=+=+=+=+=+

BARTLETT v. NYS BOARD OF LAW EXAMINERS (Cont.)

Alright... where does that get us?

Perhaps the most important thing that comes through in reading the decision is that this is a judge who gets it. She REALLY gets it. She has immersed herself in understanding complex issues of LD/reading diagnosis so that she could come to logical and appropriate conclusions of fact and of law in the case before her. The best part is that she is an articulate spokesperson for these issues, and one who (literally) speaks with the force of law behind her. While this is only a District Court decision (and thus not legally binding on other courts), it is SO well written and SO carefully crafted that we can certainly hope that others will look to her findings as a precedent because it is LOGICAL and APPROPRIATE to do so, rather than because they are required to do so by law.

Part of the reason I had so much trouble figuring out how to present this information is because I think there is so much buried within this discussion and decision that COULD be critical for the practice of DSS in higher education. Was I letting my personal bias interpret more into/from this decision than is really there? Maybe so -- but one of the advantages of publishing your own newsletter is that you are ALLOWED to editorialize to your heart's content without having to apologize to anyone! GRIN

For what it is worth...

(1) TEST SCORES DON'T TELL IT ALL

Perhaps the single most important finding to be drawn from the Bartlett decision for practitioners at the postsecondary level is a stern reminder from the Court that TEST SCORES DON'T TELL IT ALL!!! When looking at documentation re: learning disabilities, you MUST look beyond the scores alone, because the scores alone do not necessarily give you the full picture. The Supreme Court has not tampered with the EEOC guidance that suggests that in determining whether a disability is substantially limiting, one must consider the "condition, manner, and duration" of the individuals performance of the major life activity under consideration. You cannot get a feel for that by looking ONLY at test scores.

I went back and looked at the AHEAD guidelines on diagnosing LD (since those guidelines or some adaptation of those guidelines seems to be in widespread use). I was surprised by what I found;

"Standard scores and/or percentiles should be provided for all normed measures. Grade equivalents are not useful unless standard scores and/or percentiles are also included. The data should logically reflect a substantial limitation to learning for which the student is requesting the accommodation. The particular profile of the student's strengths and weaknesses must be shown to relate to functional limitations that may necessitate accommodations. The tests used should be reliable, valid and standardized for use with an adolescent/adult population. The test findings should document both the nature and severity of the learning disability. ***Informal inventories, surveys and direct observation by a qualified professional may be used in tandem with formal tests in order to further develop a clinical hypothesis.*** (Emphasis added)"

I was surprised, because I did not remember that the guidelines confirmed the legitimate use of clinical observation as a part of the diagnostic process. That is the good news. The bad news is that the preceding paragraph appears in the guidelines under the heading of "Test Scores." While the guidelines do acknowledge the legitimacy of observation, it is done within the context of giving meaning to the test scores, not as a free-standing, equally important aspect of the diagnosis. It is there, but...

How often do we see posts come across on the listserv that say (in effect), "The diagnostician says the student has a learning disability, but the test scores don't support that. What do I do?" We often see someone come back and ask, "what about the clinical observations? Has the clinician given you any information about "condition, manner, or duration" that would suggest a learning disability, regardless of the scores?" Right? NOT! The knee-jerk reaction MANY of us have in response to seeing a diagnosis of LD without the typical test profile is to suspect that the diagnostician was (1) not very competent or (2) being paid to find that there WAS a problem. In many cases, that MAY be the answer. I am not suggesting that we throw caution to the wind and start accepting mediocre documentation at face value, or that we abdicate the right/obligation to look carefully at the information presented. I am not suggesting that the diagnostician always HAS or is wise enough to PROVIDE the kind of anecdotal observations and detail regarding HOW the student responded to testing that may give the kind of picture presented in Bartlett. I am simply wondering about how often we look beyond the test scores to that observational data, and how quick we are sometimes to dismiss the observations of someone who was there and watched it happen by substituting our own interpretations of the information presented.

Under the heading of Clinical Summary, the AHEAD Guidelines state:

"A well-written diagnostic summary based on a comprehensive evaluation process is a necessary component of the report. Assessment instruments and the data they provide do not diagnose; rather, they provide important elements that must be integrated by the evaluator with background information, observations of the client during the testing situation, and the current context. It is essential, therefore, that professional judgment be utilized in the development of a clinical summary."

They emphasize an evaluation PROCESS and suggest that professional judgment be utilized in development of the clinical summary. My concern is that there is not nearly as obvious a call for others to RESPECT that professional judgement. The judge in Bartlett reminds us that we should, perhaps, do so more often!

(2) THERE MAY BE NO TESTS TO FIT THE SITUATION

This is a point primarily for diagnosticians and the LD-types out there reading this newsletter. I learned a great deal about testing adults with learning disabilities from reading this discussion. What I learned, more than anything else, is that despite the strides we have made in diagnosis in the last two decades, the diagnostic instruments commonly used (and included as preferred in most diagnostic guidelines I have seen) are not particularly sensitive to (and in some cases, not appropriate to) diagnosing a learning disability in older adults. For this population, the reliance on clinical judgment appropriately may have to be significantly increased. I have given only brief snips of the LENGTHY discussion of testing instruments provided in the Court's decision. If you are a diagnostician, you would do well to get a copy of the text of the decision and read it for yourself.

(3) YOU CAN BE *REALLY* SMART AND STILL BE DISABLED

Needless to say, the Court said that in a much more dignified manner than I just did. But the effect is the same. This gets back to the very meaning of the term "substantially limits" in our 504/ADA definition of who is disabled, and it speaks to a critical issue for those of us working in higher education. One cannot/should not assume that because a student is academically successful, he she is NOT substantially limited in the "condition, manner, or duration" in which he/she performs -- and thus entitled to protection under the law. Not everyone is in the position that Bartlett is in, and I am NOT suggesting that a label of LD should automatically qualify one for a host of accommodations. If the problem is not directly reflected in test scores, then there must be evidence that the "condition, manner, and duration" of performance IS significantly impacted before we begin to consider accommodations to provide equal access. But it is NOT appropriate to rule out that possibility based upon the fact that the student is successful. The question that must be asked in viewing that success in the context of the disability is, "at what cost?"

(4) MITIGATING MEASURES ARE THOSE THINGS THAT EFFECT THE DISABILITY, NOT WAYS *AROUND* THE DISABILITY

If Point #2 (above) was primarily for diagnosticians, then this one is primarily for the legal thinkers in the audience. In the Sutton decision, the Supreme Court ordered that when determining if someone was "substantially limited" by his/her impairment, one must take into account the effect of mitigating measures in use. In the specific instances involved, the court was talking about the use of eyeglasses, blood pressure medication, and the body's innate ability to have a working part take over some or all of the function of a non-working part (monocular v. binocular vision). In all these cases, the Supreme Court found that given these "mitigating measures," the individuals were NOT substantially limited in their performance of major life activities and thus not eligible for protection under the law. In EACH of these instances, the mitigating measure employed significantly impacted on the disability itself (that is, the glasses meant vision was "corrected to normal," the blood pressure medication maintained the blood pressure within normal limits, and the effective use of one eye largely replaced the typical binocular functioning). But...

In Bartlett, the judge reiterated a distinction drawn by several other courts that suggests that there is a difference between mitigating measures that impact on the disability and measures that allow the individual to somehow alleviate/avoid the functional limitations imposed by the disability. Simply put, ACCOMMODATIONS WE PROVIDE ARE NOT MITIGATING MEASURES. Eyeglasses are a mitigating measure; screen readers are not. Corrective surgery may be a mitigating measure; use of a wheelchair is not. A hearing aid is a mitigating measure; an assistive listening device is not.

(Just so that you don't get TOO complacent, this seemingly clear distinction isn't always so clear. Ritalin is a mitigating measure; extended time for the ADHD student is not. HOWEVER, if the Ritalin is having the desired impact, is the individual still substantially limited enough to be eligible for the extended time? Does the student have to go OFF the medication in order to get the accommodation? That would be silly, foolish, and illogical -- but you KNOW the question is going to get asked! Just remember, you are to consider WHETHER OR NOT the individual is disabled in light of mitigating measures, not assuming that if mitigating measures are in effect there will be no limitation.)

On the other hand, the Court said that both the positive AND negative effects of mitigating measures should be considered. The Court determined that Bartlett's "self-accommodations" (things she did that helped her in her attempts to read such as using her finger to point to the words as she read or skimming text and inferring answers from context) WERE mitigating measures in that they directly impacted on her performance in the major life activity of reading. However, in HER case, these mitigating measures increased her decoding accuracy at the cost of her speed, cognitive energy, fatigue and efficiency, and sometimes even her comprehension. Condition, manner, duration... keep saying that to yourself!

OTHER OBSERVATIONS:

A colleague, who is an attorney, took a look at the Bartlett decision last week and tried to summarize for folks on another listserv (who were NOT familiar with the case and not particularly knowledgeable about the issues). Most of his points mirror those I gave my own spin to, above. But he pointed out two other things that I thought were worth additional note:

"Real life examples can be compelling."

As you read the Bartlett decision, it becomes clear that the judge believed what Bartlett had to say because she listened to Bartlett's testimony and WATCHED her try to read. For years, my mother had a favorite poem that she kept prominently displayed at our house:

The wise old owl sat in the oak.

The more he heard, the less he spoke.

The less he spoke, the more he heard.

Why can't WE be like that bird?

A point well taken?

" Some objections to accommodations are driven by misperceptions and stereotypes about learning disabilities."

The decision discusses, at some length, many of the same problems on the part of the Board of Law Examiners conveyed by Jon Westling and his crowd in the Boston University law suit. Having a bad attitude is not against the law, but translating that bias into actions that limit the options and opportunities of people with disabilities will not be tolerated. You might want to pass THAT point along to others at your institution! GRIN

Let me suggest a very PRACTICAL application to what we have just been reviewing. Shortly after the Bartlett decision appeared, someone posted to the DSSHE-L and invited comments from folks about the "accommodation guidelines" she had developed for use at her institution. The person who offered these guidelines for review is, herself, a school psychologist by training, now working in a DSS position at a state university. Below are some pieces of a private post I sent in response. I never heard back from her directly. I wonder why (she says, with an evil grin)?

<< I read, with some dismay, the guidelines for documentation and accommodations that you posted to the DSSHE-L yesterday. You asked for feedback, so I will give it -- although I am not sure you are going to like it!

In your Accommodation Guidelines, you begin with this paragraph:

"Diagnosis of a Learning Disability

The diagnosis is based upon a significant discrepancy between measured aptitude (IQ) and measured academic skills (achievement) that is due to an identified deficit in a specific information processing function of the brain such as visual or auditory memory, auditory processing, visual processing, visual-motor processing, or speed of processing. Other disabilities such as attention deficits are highly correlated with learning disabilities. With very intelligent persons, they may have a learning disability (IQ/Achievement Discrepancy) and still have average or above average academic skills that require little if any accommodation."

I have problems with pretty much all of that. The first piece that jumped out at me was that the title of the handout refers to accommodations for LD and for ADD/ADHD, but this one statement (" Other disabilities such as attention deficits are highly correlated with learning disabilities") is the ONLY reference I can find to ADD/ADHD. If the reason you are putting the ADD/ADHD students through the significant battery of testing described for LD students is simply because in many cases the two conditions are comorbid, I think you are using VERY faulty logic. Many times there is overlap. That means sometimes there isn't. Extending your protocol to its logical conclusion, you are suggesting that the only students with attention deficits who will be recognized/served at your institution are those that DO have a learning disability as well. No demonstratable processing difficulty, no acknowledgement. I don't think that would fly too well if someone chose to challenge it.

The bigger problem lies in the last sentence:

"With very intelligent persons, they may have a learning disability (IQ/Achievement Discrepancy) and still have average or above average academic skills that require little if any accommodation. "

I would suggest that you get a copy of the court decision from two weeks ago in Bartlett v. New York State Board of Law Examiners, read it thoroughly, and then go back to this statement -- and your accommodation guidelines -- and think it out again. Marilyn Bartlett is an EXTREMELY intelligient woman who has attained both a Ph.D. and a Law degree successfully... and a person whom the Court has just determined is "significantly limited" by her disability and entitled to substantial accommodation. (snip)

In your discussion of the accommodation of extended time you say, "Most students will do fine with time and a half to allow them to compensate for their disability. If they think that more time may be needed or if the following indicators are present, double or triple time may be appropriate.

"Triple Time - Does student have a diagnosis of Obsessive-Compulsive Disorder and/or Processing Speed or Digit Symbol standard score below 85 or scaled score below 8? If yes, they may need triple time otherwise, double time should be enough for most students. Some students with severe uncontrolled ADD or anxiety may need triple time until they work with a doctor to get their symptoms better under control.

"Double Time – Students with Processing Speed or Digit Symbol standard scores below 90 or scaled scores below 9 and students in classes with in-class quizzes or students with Anxiety Disorder or Obsessive-Compulsive Disorder. Students with reading or writing "rate" or "fluency" standard scores below 90 or the 25th percentile."

The judge in the Bartlett case just rejected (handily) the idea of using scores alone, and particularly arbitrarily determined cut-off scores, to establish whether someone has a disability. It seems to me that you have compounded the problem by using scores alone, and arbitrarily set cut-off scores, to make determinations of who will get what accommodation...>>

WHERE DO WE GO FROM HERE?

How will this play out over time? It remains to be seen. We can only wait and see, and look for opportunities to make this VERY positive and VERY encouraging decision work for our students and our programs. Stay tuned!!

+=+=+=+=+=+=+=+=+=+=+=+=+

(End of Part II)