Dr. DeLisa is professor and chair, Department of Physical Medicine and Rehabilitation, University of Medicine and Dentistry of New Jersey–New Jersey Medical School, Newark, New Jersey.
Mr. Silverstein is principal, Powers Pyles Sutter and Verville PC, Washington, DC.
Mr. Thomas is principal, Powers Pyles Sutter and Verville PC, Washington, DC.
Correspondence should be addressed to Dr. DeLisa, Physical Medicine and Rehabilitation, 30 Bergen St., ADMC 1, Ste. 101, Newark, NJ 07101-1709; e-mail: email@example.com.
Editor's Note: This is a commentary on Smith WT, Allen WL. Implications of the 2008 amendments to the Americans with Disabilities Act for medical education Acad Med. 2011;86:768–772.
In this issue, Smith and Allen1 describe the implications of the 2008 amendments to the Americans with Disabilities Act (ADAAA) for medical education.2 We agree with many of the points made by the authors but view the implications of the ADAAA from a somewhat different perspective. Most of their article focuses on colleges of medicine as “defendant institutions” and provides a legal analysis regarding the institutions' acceptance, testing, and treatment of trainees with specific learning disabilities before and after the ADAAA. For example, the authors summarize the implications of the amendments by stating that
... the ADAAA is likely to reduce the number of instances in which a medical student's claim of disability discrimination is dismissed without a trial on the grounds that the disability is insufficiently limiting.1
Although this analysis is accurate and timely, we believe that the authors should have placed a greater emphasis on the policy implications of the ADAAA on colleges of medicine and the National Board of Medical Examiners (NBME). We were pleased that toward the end of the article the authors shifted their focus to the true implications of the ADAAA—Colleges of medicine and medical boards should focus on undertaking a comprehensive, evidence-based review, analysis, revision (if necessary), and aggressive implementation of policies, practices, and procedures that truly facilitate equal and effective educational opportunity for individuals with disabilities, including individuals with physical, sensory, and mental impairments. In particular, the focus should be on policies, practices, and procedures related to physical and programmatic accessibility, reasonable accommodations, and academic modifications and adjustments.
On July 26, 1990, President George H.W. Bush signed into law the Americans with Disabilities Act (ADA).3 The ADA is a civil rights law—It is intended to provide a “clear and comprehensive national mandate” to eliminate disability-based discrimination.4 Thus, the primary focus of the ADA was supposed to be on the issuance and implementation of policies, practices, and procedures by covered entities, including colleges of medicine, that facilitated equal opportunity (nondiscrimination) for qualified individuals with disabilities.
As defined in the ADA, discrimination has three core components. First, discrimination includes the failure to treat each individual on a case-by-case basis based on facts and objective evidence, not based on fear, ignorance, prejudice, stereotypes, labels, or pernicious mythologies. Second, discrimination includes the failure to provide to individuals with disabilities opportunities that are as genuine, effective, and meaningful as those provided to others. This means that colleges must make their programs physically and programmatically accessible and provide reasonable accommodations and academic modifications and adjustments for individuals with disabilities. Third, discrimination includes the college's failure to administer its programs for individuals with disabilities in the most integrated setting appropriate to meet the needs of individual students.5
Through this broad mandate, the ADA was intended to protect anyone who was discriminated against on the basis of disability, including individuals who actually had a current physical or mental impairment that substantially limited a major life activity, individuals who did not have a current impairment but who had a record or history of having such an impairment, and individuals who did not have a current impairment but who were regarded (i.e., adversely treated) as having such an impairment (actual or perceived).6
The question of whether an individual's impairment constituted a disability under the ADA was not supposed to have demanded extensive analysis or result in an undue focus on the threshold question of whether a particular individual qualified as a person with a disability. Yet, as Smith and Allen point out, many individuals were considered by the courts “not disabled enough” to warrant protection under the law and were denied the opportunity of a trial. Congress did not intend for this threshold question to be used as a means to deny individuals the right to prove in court whether or not they were discriminated against on the basis of disability. Instead, the intention was to send a message to covered entities that their policies, practices, and procedures should facilitate, not impede, equal educational opportunities—that is, they should make individualized determinations and ensure effective and meaningful opportunity to participate in the college's programs in the most integrated setting appropriate.
Contrary to congressional intent, a series of U.S. Supreme Court decisions restricted the broad scope of coverage under the ADA. The Supreme Court interpreted the ADA strictly to create a demanding standard to qualify for protection under the ADA and, by so doing, distracted attention from the true mission of the ADA—facilitating the adoption of nondiscriminatory policies and methods of administering programs.7 These Supreme Court decisions often created a perverse catch-22 situation under which a covered entity could refuse to allow an individual to participate in a program simply on the basis of his or her disability (i.e., too disabled to participate) while at the same time maintaining that the individual was “not disabled enough” to qualify for protection under the law. In short, the Supreme Court decisions had the effect of significantly diminishing the civil rights protections under the ADA intended by Congress.8,9
In 2008, a broad-based coalition of stakeholders and policy makers agreed to work together to restore protections under the ADA. The ADAAA restores the original intent of the ADA by (1) reinstating the intended broad scope of protection and (2) moving the focus from the threshold issue of disability to the primary issue of developing and implementing nondiscriminatory policies, practices, and procedures.10 For example, the ADAAA directs the courts and administrative agencies to interpret the term “disability” in favor of broad coverage and determine whether an impairment “substantially limits a major life activity” without regard to the ameliorative effects of mitigating measures (e.g., medication, medical supplies, or learned behavioral or adoptive neurological modifications).* The ADAAA also modifies the ADA to include an expanded illustrative list of major life activities, such as learning, reading, concentrating, thinking, and communicating, set out in the current regulations. It rejects the interpretation by the courts that an individual must have an impairment that prevents or severely restricts the individual from performing multiple activities from this list and specifies that an impairment that substantially limits one major life activity need not limit other major life activities to be considered a disability.
At the same time that Congress decided to restore the broad scope of protection, it also made clear that it was refocusing the attention of the ADA on whether colleges of medicine and other covered entities were implementing nondiscriminatory policies, practices, and procedures. Some in the higher education community were concerned that this refocus could be construed to mean that Congress was changing its policy regarding reasonable accommodations and academic modifications and adjustments. To allay the fears of the higher education community, Congress included a “construction clause,” which explained that nothing in the ADAAA alters the provision specifying that reasonable modifications in policies, practices, or procedures shall be required
unless an entity can demonstrate that making such modifications... including academic requirements in postsecondary education, would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations involved.11
Medical Educators Must Refocus Their Attention on Reasonable Accommodation Policies
We agree with several of Smith and Allen's observations and suggestions related to the implications of the ADAAA for medical educators. In particular, we agree with the observation that the issue of ADA compliance is too often left to admissions committees with limited attention from curriculum committees and clerkship directors. We also agree with the suggestion that collaborative reflection and consensus building across academic “fiefdoms” should result in greater consistency and may allow for more “imaginative” means of achieving competencies for students with disabilities.
We believe that the significant message of the ADAAA is that colleges of medicine and the NBME must refocus their attention on the implementation of comprehensive, evidence-based nondiscrimination policies, practices, and procedures applicable to qualified persons with physical, sensory, and mental disabilities (not only individuals with specific learning disabilities). The particular focus should be on policies related to physical and program accessibility and reasonable accommodations and academic modifications and adjustments. This refocus should include a review, analysis, and revision (if necessary) of these policies, practices, and procedures. According to Congressman George Miller,12 the chair of the House Committee on Education and Labor and the floor manager of the ADAAA,
We expect that the less demanding standards applied to the definition of disability will allow students and licensure candidates with documented disabilities to more readily access appropriate accommodations on examinations when needed.
Representative Joe Courtney13 made a similar point:
[T]hese amendments to the ADA do not provide any special treatment, but rather, ensure that each individual with a learning disability has every opportunity to apply for and receive the reasonable accommodations so he/she can move forward in his/her chosen educational and career path.
Dr. DeLisa is a member-at-large of the National Board of Medical Examiners.
1 Smith WT, Allen WL. Implications of the 2008 amendments to the Americans with Disabilities Act for medical education. Acad Med. 2011;86:768–772.
2 ADA Amendments Act of 2008, Pub L No. 110-325, 2008 Stat 3553.
3 Pub L No. 101-336, 1990.
4 Americans with Disabilities Act §2(b), 42 USC §12101 (1990).
5 Americans with Disabilities Act §302, 42 USC §12182 (1990).
6 Americans with Disabilities Act §3 (definition of disability), 42 USC §12102 (1990).
7 ADA Amendments Act of 2008 §2(a), Pub L No. 110-325, 2008 Stat 3553.
8 Miller G. Statement from floor manager of the ADAAA. Congr Rec (Dly Ed). June 25, 2008:H6061.
9 Harkin T. Statement from the Senate floor manager. Congr Rec (Dly Ed). September 11, 2008:S8348.
10 U.S. Senate Statement of Managers. Congr Rec (Dly Ed). September 11, 2008:S8344–S8346.
11 ADA Amendments Act of 2008 §6(a), Pub L No. 110-325, 2008 Stat 3553.
12 Miller G. Statement. Congr Rec (Dly Ed). September 17, 2008:H8290-H8291.
13 Courtney J. Statement. Congr Rec (Dly Ed). September 17, 2008:H8296.
*Prior to ADAAA, some courts found that students who had reached a high level of academic achievement were not considered individuals with disabilities under the ADA. As such, these individuals had difficulty demonstrating substantial limitation in the major activities of learning or reading relative to “most people.” According to congressional intent, when considering the condition, manner, or duration in which an individual with a specific learning disability performs a major life activity, it is critical to reject the assumption that an individual who performs well academically or otherwise cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking. As such, Congress rejected the findings in Price v National Board of Medical Examiners, 966 F Supp 419, 427 (SD WVa 1997), Gonzales v National Board of Medical Examiners, 225 F3d 620 (sixth Cir 2000), and Wong v Regents of University of California, 379 F3d 1097 (ninth Cir 2004). Cited Here...