[blindlaw] 6th Court of Appeals told lower course to review case in light of ADAAA

[Nightingale, Noel]

>From Special Ed Connection

Key points:

6th Court of Appeals told lower course to review case in light of ADAAA
Lower court denied request for extra time to take medical licensing test
Congress seeks to move focus from whether student has disability to whether accommodation reasonable
Ruling on testing accommodations shows effect of ADAAA

On its face, a court ruling that renewed a man's hopes of getting extra time on a medical licensing test does not affect special education. Jenkins v. National Board of Medical Examiners, 109 LRP 7480 (6th Cir. 2009).

The U.S. Medical Licensing Examination, after all, is a professional test, not an academic one, and the plaintiff, Kirk Jenkins, previously had been granted extra time on the ACT and the Medical College Admission Test.

Nonetheless, the decision by the 6th Circuit Court of Appeals may be of interest to special educators because the court told the lower court, which rejected Jenkins' claim in February 2008, to make a fresh analysis in light of the ADA Amendments Act, which became effective Jan. 1. Jenkins v. National Board of Medical Examiners, 108 LRP 10254 (W.D. Ky. 2008).

Thus, the appeals court ruling is a reminder that decisions about accommodations will be reviewed under a new standard if they get into court, according to Jose Martín, an attorney at Richards, Lindsay & Martín in Austin, Texas.

"This case is going to be interesting on remand more than at this time," he said. "Under the relaxed standard, this man is going to qualify" as someone with a disability that substantially limits a major life activity -- the core requirement of the ADA.

The question will then be whether extra time is a reasonable accommodation for someone who, like Jenkins, has a reading disability, Martín said. And on that point, the outcome could go either way, he said.

After all, he said, the lower court might say that doctors need to be able to process written information quickly, especially in an emergency, and rule against Jenkins again.

"Not all tests can be untimed," Martín said. "Part of being smart is how quick you are, is how quickly you process."

But if that is what the case turns on, Congress will have achieved its purpose, which was to shift the discussion from whether someone has a disability and how severe it is to whether the accommodation they are requesting is reasonable, Martín said.

"The Congress wants this kid to be able to get into court and to be able to argue [that getting extra time to take the test is] a reasonable accommodation . . . and they want the medical examiners to say, 'No, this is not a reasonable accommodation,'" Martín said. "That's the news of the case. That's the fundamental analytical shift."

Ken Cotton, a spokesman for the National Board of Medical Examiners, declined to comment on the Jenkins case. The board "has been and will continue to provide reasonable accommodations to applicants with qualifying disabilities as defined by the" ADAAA he said in an e-mail.

The Jenkins case, while still in a preliminary stage, shows that the rules for granting accommodations have changed, according to Robert Schaeffer, public education director for the National Center for Fair & Open Testing.

The District Court ruling put "an arbitrary hurdle in front of Jenkins' ability to pursue the occupation for which he has been trained," he said. "This is an example of why Congress passed the amendments."

Martín did not go that far in his remarks.

"All the 6th Circuit is saying is, 'Hey, lower court, the law has changed . . . and you need to readdress the claims made by this young man in light of the new law,'" he said.

Nonetheless, testing organizations "have some thinking to do," Martín said. "To the extent that they've been applying a more restrictive analysis as to whether we should even talk about your [request for an] accommodation, then that should be rethought altogether."

Special Ed Connection® related stories:

College Board says ADAAA has not affected its decisions on accommodations (Feb. 24)
*For more stories and guidance on this topic, see the ADA Amendments Act Roundup.

Mark W. Sherman, a Washington bureau correspondent, covers special education issues for LRP Publications.

February 24, 2009

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