DOJ Issues New Guidance on Testing Accommodations Under the Americans with Disabilities Act
On September 8, 2015, the Department of Justice issued technical assistance on testing accommodations under the ADA. The document covers who is entitled to testing accommodations, what types of testing accommodations are required, what documentation may be required of the individual requesting the accommodations, prohibited flagging policies, and how test scores for those receiving accommodations should be reported.
First, the document makes clear that the testing accommodations requirements apply to exams administered by any private, state, or local government entity related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes.
Regarding what constitutes testing accommodations, the DOJ explains that testing accommodations are changes to the regular testing environment and auxiliary aids and services that enable those with disabilities to demonstrate their true aptitude on exams. Examples include braille, screen reading technology, scribes, extended time, wheelchair-accessible testing stations, and distraction-free rooms.
In terms of testing accommodations eligibility, the document explains that an individual with a disability is eligible to receive testing accommodations, and under the ADA, an individual with a disability is someone who has a physical or mental impairment that substantially limits a major life activity (such as hearing, seeing, learning, reading, or concentrating), or a major bodily function (such as the neurological, endocrine, or digestive system). A substantial limitation of a major life activity may be based on the extent to which the impairment affects the condition, manner, or duration in which the individual performs the major life activity. In other words, to be “substantially limited” under the ADA does not require that the individual be unable to perform the activity. Finally, a person may still have a disability, even if he or she has a history of academic success.
As for the testing accommodations that must be given, the document provides that the testing entities are obligated to ensure that the test scores of those with disabilities accurately reflect the individual’s aptitude, or whatever skill the test is intended to measure, as opposed to the individual’s impairment (unless the exam is designed to measure the impaired skill).
The document also addresses what kind of documentation is sufficient to support an accommodations request. It states that any required documentation must be reasonable and narrowly tailored to the information needed to determine the nature of the disability and the need for the requested accommodations. The DOJ counsels that proof of past testing accommodations in similar test settings is usually sufficient to support a request for the same accommodations, but an absence of previous accommodations does not preclude a candidate from receiving accommodations. Finally, testing entities are instructed to defer to documentation from a qualified professional who has made an individualized assessment of the candidate that supports the need for the requested accommodations.
To help address complaints to the DOJ regarding test givers’ failure to response to requests for accommodations in a timely manner, the DOJ counsels that testing entities must respond in time for applicants to register and prepare for the test, and should provide applicants with an opportunity to respond to any requests for additional information and still be able to take the test in the same testing cycle.
With respect to the reporting of test scores, the DOJ takes the position that testing entities should report accommodated scores in the same way they report scores generally, and must not decline to report scores for test-takers receiving accommodations.
Finally, the document makes clear that flagging policies (i.e., annotating or otherwise reporting scores in a way that indicates the exam was taken with an accommodation) are prohibited. The rationale for this prohibition is that flagging announces to all exam score recipients that the test-taker has a disability, suggests that the scores are not valid, and discourages test-takers with disabilities from exercising their right to testing accommodations under the ADA.
The technical assistance document can be viewed by visiting the disability rights section of the DOJ’s website at http://www.ada.gov/regs2014/testing_accommodations.html.