Educators' responsibilities in implementing the ADA.

The Americans with Disabilities Act (ADA) prohibits educational programs from discriminating against academically qualified applicants with disabilities and requires each academic program to develop a list of essential requirements for the program. This article describes how the ADA affects

educational programs. It also presents a sample list of essential requirements for radiologic science education programs that supports ADA requirements. Documenting the essential requirements is in the best interests of the program and its students, providing a defensible basis for student admissions and the measurement of academic progress.

During the second half of the 20th century, the U.S. government issued many laws and regulations designed to protect applicants and employees from discrimination in the workplace. Most significant among these employment laws was Title VII of the Civil Rights Act of 1964, which established the Equal Employment Opportunity Commission and made it illegal for employers to base hiring and firing decisions on an individual's gender, race, religion or national origin.

In the past 20 years, the federal government has extended protection from discrimination to another group of employees--disabled Americans. Two major pieces of legislation are designed to prevent discrimination in the employment of qualified individuals with disabilities--the Rehabilitation Act of 1973[1] and the Americans with Disabilities Act of 1990.[2] Section 504 of the Rehabilitation Act established the basic rights of qualified individuals with disabilities in institutions receiving federal funding. The ADA expanded the scope of Section 504 by ensuring employment rights and equal access to services, transportation and telecommunications systems provided by both public and private organizations, regardless of whether they receive federal assistance.[3]

Implementation of the Rehabilitation Act and the ADA has created two complex questions requiring legal definitions:

* What is a disability?

* Who is a qualified individual?

The definition of "disability" is lengthy and subject to case law reinterpretation. However, a brief definition states, "An individual is disabled if he or she has a physical or mental impairment that substantially limits one or more of the major life activities."[4] In their 1994 article, Helms and Helms[5] define "major life activities" and provide details about who may or may not be protected under this definition.

To identify "qualified individuals," the ADA requires employers to list essential functions for each job in their company or institution. Essential functions--also called technical standards or functional expectations--are task-based criteria that define jobs and enable employers to match employees with positions. Essential function lists resemble the list of duties in a job description, but also are the basis for defining "reasonable accommodations" for people with disabilities. Reasonable accommodations are structural or functional modifications that may be required of an employer in order for a person with a disability to perform the essential functions of the job. Examples of reasonable accommodations can range from widening aisles and lowering counters to restructuring jobs or reassigning employees.

Essential Functions In Employment

The ADA establishes the concept of essential functions as a way to determine whether an individual qualifies for a job and is capable of performing the job with or without reasonable accommodations.[6] Essential functions are capabilities and tasks that:[7]

* Constitute the fundamental reasons a position exists.

* Demand a substantial portion of the employee's time to complete.

* Would fundamentally alter the position if removed.

* Would cause severe consequences if not performed.

* Require specialized employee expertise.

* Can be distributed to a limited number of fellow employees.

Since July 26, 1992, the ADA has required that employers list the essential functions of all jobs in their institutions and identify reasonable accommodations to the disabilities of qualified individuals so that they may perform these functions. Today, essential functions are one of the primary bases for legal action by personnel.

Essential functions are used to:

* Define the criteria by which anyone, with or without a disability, may qualify for a job.

* Set the criteria by which reasonable accommodations may be made for candidates and incumbents with disabilities.

* Provide an objective framework for accepting applications, conducting interviews, requiring pre-employment testing, fitting candidates with positions, meting out discipline and terminating an employee.

Essential functions are stated as "ends." The means to perform the function is deliberately unstated so that the individual with a disability may achieve the essential function using a reasonable accommodation.

The ADA and Educational Programs

The importance of an education may be greater for an individual with a disability than one without, as education may be the only route to employment and productivity.[8] Several provisions of the Rehabilitation Act and the ADA apply specifically to the services provided by educational institutions, whether public or private.[9]

Like employers, educational institutions must provide access for qualified individuals with disabilities and must not exclude program candidates on the basis of their disabilities. Furthermore, reasonable accommodations to educational programs may be required[10] These accommodations may include audio aids, alternative test formats, lengthened test time intervals and specialized seating.

Essential Requirements in Education

In response to the Rehabilitation Act, the ADA and their attendant litigation, educators must review each program's admissions criteria, academic progress standards, course requirements and graduation requirements to develop its essential requirements. Applicants' qualifications then are compared to both the program's essential and academic requirements--such as course prerequisites, placement test results and grade point average minimums--for admission and academic progress decisions.

There is a difference between essential functions and essential requirements, and educators must distinguish the essential requirements of an academic program from the essential functions of a job, even when the educational program is a professional program providing preparation for the job. For this reason, Thomas" urges the use of a phrase other than "essential functions" when listing the requirements in an educational program. "Essential requirements" seems suitable because it is a construction parallel to "essential functions," yet reflects the preparatory nature of an academic program. It also parallels the commonly accepted phrase "academic requirements," which is used to define grade point average minimums and course prerequisites.

Essential requirements are similar in many ways to the "technical standards" required for many years in the Essentials issued by the Joint Review Committee on Educational Programs in Radiologic Technology. A major difference, however, is that the technical standards in the Essentials permitted delineation of standards according to job requirements required after graduation. This practice is definitely not acceptable as an essential requirement under the ADA.

Although separating the essential requirements for a professional academic program from the essential functions of its target professional position may seem artificial, the ADA clearly demands it. As Thomas" explains, "Anyone who meets the admission requirements and maintains the appropriate GPA is allowed to take courses for which they have prerequisites and are otherwise qualified to enroll. How they fare in the work place is something that those students will encounter at a later date, armed with additional protection provided by the ADA."

While program requirements must reflect the clinical practicum component of our curricula, they must avoid appearing to list essential employment functions.

Furthermore, an educator may not discourage an individual with a disability from applying for admission to a professional program just because the educator does not think the individual can perform the functions.

One example is the ability to recognize color. Because most types of radiographs currently are displayed as shades of gray, it is doubtful that a radiography educational program can claim that color recognition is an essential requirement, even if there is a possibility that radiographs will be displayed in color in the future. However, color recognition could be considered essential to an ultrasound educational program where color Doppler scanning is used. A student's ability to recognize color can be justified only if it is required in the educational program, not based on the fact that it might be required for future employment.

Two groups of individuals should be informed about the program's use of essential requirements. First, clinical instructors need to understand how these requirements relate to student acceptance and progress in the program. If essential requirements do not reflect the clinical education plan, then clinical instructors will be evaluating students under different criteria than were presented to the student at admission, and problems will occur. For example, if the student fails the clinical education component, case law might demonstrate that the program accepted students unable to succeed. On the other hand, if students determine that the essential requirements given were too restrictive and did not reflect actual clinical course requirements, they will have a case for bias in the selection process.

Second, employers need to be informed of the essential requirements. Although educational programs often are considered to be "gatekeepers" for employers, completion of an educational program is not a guarantee that graduates will be able to perform every job in every setting. That determination must be made by the employer. Employers serving on program advisory committees need to understand that the requirements cannot directly mirror job performance.

For example, an employer may require that employees perform venipuncture. This employer, of course, would choose to hire graduates possessing this skill. The performance of venipuncture requires certain visual and psychomotor (fine motor) capabilities. The educational program, however, could define venipuncture "competency" as a cognitive skill only, providing academic information about venipuncture without clinical practice. The program's applicants, therefore, need not possess these visual and psychomotor capabilities, so the program should not list them as essential requirements. To do so would be discriminatory, as the skills are not necessary to complete the academic program. It then becomes the employer's responsibility to screen applicants for venipuncture skills.

Some sample essential requirements are given in Table 1. This sample list should not be considered standard, because the list will vary depending on specific program requirements. The philosophy behind this list presented in Table 1 was to keep the requirements as simple as possible. For example, one of the requirements in Table 1 simply states, "Communicate with patients, verbally and otherwise."

Table 1
Sample Essential Requirements

The student should be able to:

  * Meet admissions standards.

  * Perform, read and
interpret vital body signs.

  * Administer injections and
obtain blood samples.

  * Use sterile technique and
universal precautions.

  * Perform cardiopulmonary resuscitation (CPR).

  * Move quickly throughout the clinical site.

  * Assist in
lifting, transferring and moving patients.

  * Lift at least
50 pounds.

  * Move heavy, portable equipment
throughout the clinical site.

  * Manipulate radiographic
equipment.

  * Communicate with patients, verbally and otherwise.

  * Respond to requests from patients, physicians and
other health care workers.

  * Read a computer screen.

  * Input and retrieve computer data through a
keyboard.

  * Read charts and monitors.

  * Perform documentation procedures.

  * Distinguish shades
of gray.

  * Perform duties while under stress.

Other programs may prefer a more detailed list of essential requirements, but being too specific can be dangerous. For example, the sample requirements of one program stated, "Ability to use therapeutic communication: attending, clarifying, coaching, facilitating [and] touching." Specifically requiring touch as a means of communication might be considered discriminatory if other methods of communication could serve just as well.

Developing Essential Requirements

When writing a list of essential requirements, keep in mind that they are capabilities and tasks that:

* Provide an objective framework for accepting applications, conducting interviews and requiring preadmission testing.

* Define the criteria by which any student, with or without a disability, must be able to achieve to progress academically and complete an educational program.

* If deficient, result in denial of enrollment or academic failure.

* Set the criteria by which reasonable accommodations may be made for candidates and students with disabilities.

Although admissions officers and faculty must use essential requirements during the application process, the requirements should be written to reflect attributes that students either already possess or will be able to gain during the program. Consequently, the subject should be referred to as "the student," not "the applicant" or"the technologist."

Also, writers should use outcome-based verbs such as observe, characterize and employ, as the process may vary according to the student's needs. The verb "observe," for example, usually means "see," but also could mean "hear" or "feel" if either is a reasonable substitute for vision in the visually impaired. Likewise, "move about the department" does not have to imply walking, and "read" could imply "hear" or "touch." Some specific process requirements, such as "read graphs on a video monitor," are necessary because there are no substitutes for these activities. They may be modified in the future, however, as technology provides alternatives.

Requirements in the categories of intellect and behavior, which may be argued to be equal parts academic and essential requirements, are systematically specified in program documentation. The essential requirements enable educators to formally list characteristics such as team skills, time management, ethics and the ability to evaluate.

Requirements must be written to minimize patients', other students' and other health care workers' exposure to risk. In radiologic science, individuals who cannot avoid exposing patients or colleagues to risk of viral or bacterial infection or who, by their behavior, may cause risk of injury, are controlled by these requirements.

Using the Essential Requirements In the Admissions Process

Before interviewing any candidate, publish the essential requirements in the program's descriptive literature alongside the academic requirements and admissions protocol. Potential applicants have a right to know all program requirements. Materials may be published in alternative formats such as audiotapes upon request.

During the initial admissions interview:

* Do not wing it! Work from a script to avoid wrongful or discriminatory questions or statements.

* Do not ask "Do you have a disability?" If no disability is apparent, it is the responsibility of the candidate to volunteer the information and to request accommodation. You then may confirm the disability through your campus Student Services office or other officials.

* Do not ask "What is your disability?" If a disability is apparent, present the list of essential requirements and ask "How can we help you succeed?" but don't make specific reference to the disability.

* Do not ask "How severe is your disability?" Questions about the nature of a disability, even if the candidate proclaims it and requests accommodation, are an invasion of privacy and may be considered torts (civil wrongs).[12]

* Do not require applicants to take a special test or medical examination.[13]

Following the initial interview, if it is determined that a candidate meets the academic requirements:

* Make a conditional admission offer that includes a list of the essential requirements.

* Require the conditionally admitted student to affirm, in writing, his or her possession of or ability to learn each essential requirement.

* If desired, administer a test of the conditional student's ability to perform the essential requirements. Tests are allowed only if they are administered to all candidates, including those who indicate no disability.

* If desired, require a medical examination to determine the conditional student's ability to perform the essential requirements. Medical examinations are permissible only if they are required of all candidates, including those who indicate no disability.

* If the conditionally accepted student discloses the inability to meet an essential requirement, require a written request for accommodation. This may be on the same document as the list of essential requirements. The institution may substitute its own accommodation for that requested by the student if it enables the student to meet the essential requirement.

Conclusion

The Americans with Disabilities Act still is being implemented, and definitions for qualifications, disability and accommodatic ms are evolving as cases are tried. Meanwhile, all educators must be prepared with defensible academic and essential requirements that reflect the needs of their programs, and with appropriate processes for managing applications, academic progress and program completion that promote equal educational opportunity for qualified individuals with disabilities. Educators' goal should be to increase the contribution made to our profession by individuals with disabilities and to contribute to the growing environment of opportunity for all qualified individuals.

References

[1.] Section 504, Title VI of the Rehabilitation Act of 1973, as amended in 1974, 29 USCA [Section] 794.

[2.] Americans with Disabilities Act, Public Law 101-336, 104 Stat 327 (1990), 42 USCA [Sub Section] 12101-12213 (West Supp 1991).

[3.] Smith QW, Wilkinson W, Freden L, Holcomb JD. The Americans with Disabilities Act: new challenges for the health professions. J Allied Health. 1992;21 :149-159.

[4.] Essex-Sorlie D. The Americans with Disabilities Act: I. history, summary, and key components. Acad Med. 1994;69:519-524.

[5.] Helms LB, Helms CM. Medical education and disability discrimination: the law and future implications. Acad Med. 1994;64:535-543.

[6.] Miles AS. A Preventive Law Approach to the Americans with Disabilities Act. Tuscaloosa, Ala: The University of Alabama.

[7.] Barlow WE, Hane EZ. A practical guide to the Americans with Disabilities Act. Clinical Laboratory Management Association Newsletter. January/February 1993:9-19.

[8.] Bowman OJ, Marzouk DK Implementing the Americans with Disabilities Act of 1990 in higher education. Am J Occupat Ther. 1992;46:521-533.

[9.] Essex-Sorlie D. The Americans with Disabilities Act: II. implications and suggestions for compliance for medical schools. Acad Med 1994;69:525-535.

[10.] Meyers C, Ellingham C. The Americans with Disabilities Act: allied health educators' responsibility and challenge. J Allied Health. 1994;23:173-181.

[11.] Thomas A. Access to Education: A Guide to Accommodating Students with Disabilities. Albuquerque, NM: The University of New Mexico Committee for Students with Disabilities.

[12.] Black's Law Dictionary. 6th ed. St. Paul, Minn: West Publishing Co; 1990:1489.

[13.] Geaney JH. Medical examinations under the Americans with Disabilities Act. New Jersey Med 1993;90:36-37.

George A. Fritsma, M.S., M.T., C.L.S., is an associate professor in the Division of Clinical Laboratory Science at the University of Alabama at Birmingham. Steven B. Dowd, Ed.D., R. T. (R), is an associate professor in the Division of Medical Imaging and Therapy at the University of Alabama at Birmingham.

Reprint requests may be sent to the American Society of Radio logic Technologists, Publications Department, 15000 Central Ave. SE, Albuquerque, NM 87123-3917.

[C] 1996 by the American Society of Radiologic Technologists.