Legal Issues Related to Adults with Learning Disabilities

From Bridges to Practice: A Researched-based Guide for Literacy Practitioners Serving Adults with Learning Disabilities, 1999

A learning disability that substantially limits a major life activity is a disability protected by federal and state laws, just as is a physical or sensory disability. Accordingly, the legal rights of qualified adults with learning disabilities become an important consideration for them and for the programs and practitioners serving them. However, in order for adults with learning disabilities to assert their rights, they must provide legal documentation of their learning disabilities. This documentation should include a diagnosis by a qualified professional, a description of the disabilities' impact on the individual's functioning, and recommendations for specific accommodations.

Adults often also need to learn how to become advocates for their rights. The characteristics of a good self-advocacy curriculum are described in Guidebook 3: The Planning Process. In addition, the bibliography in Guidebook 1 lists further resources that address this important topic for adults who may benefit from self-advocacy training.

The information provided in this section is an overview of the legal issues surrounding the topic of disabilities. It is intended to provide an awareness of legal terminology and a basis for continuing further investigation and study.

A Learning Disability is a "Disability"

The Americans with Disabilities Act of 1990 (PL 101-336) defines an individual with a disability as a person who

• has a physical or mental impairment that substantially limits one or more "major life activities";
• has a record of such an impairment; or
• is regarded as having such an impairment.

Specific learning disabilities are examples of mental impairments. Major life activities include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Thus, an individual who has a learning disability may be entitled to certain rights and responsibilities. Legal protection exist for individuals with disabilities to ensure equal opportunity. Because rights and responsibilities are mandated, equal opportunity is guaranteed and not just expected.

Important Federal Laws

Much of the progress made in assuring civil rights protections for adults with learning disabilities has been achieved by guarantees provided for in federal law. The legal rights concerning learning disabilities are found in the Individuals with Disabilities Education Act (IDEA) of 1997 (PL 105-17, formerly PL 94-142), the Americans with Disabilities Act, as well as in Section 504 of the Rehabilitation Act of 1973 (PL 93-112).

Individuals with Disabilities ACT (IDEA) of 1997 (PL 105-17)

IDEA is an education law that applies to young people with disabilities from birth to 21 years of age (defined as up to the 22nd birthday) who require special education and related services. The section pertaining to school-age students also apply to young adults under the age of 22 who have not obtained a regular high school diploma. All education programs that receive federal funds, which includes all public schools, must adhere to the provisions of this law.

Rehabilitation Act of 1973 (PL 93-112), Section 504

Section 504 of the Rehabilitation Act states that "No individual with a disability in the United States shall, solely by reason of his or her disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or any program or activity conducted by an Executive agency." A "program or activity" is defined as including all of the operations of a local educational agency, system of vocational education, or other school system. Section 504 applies to entities that receive federal funds.

American with Disabilities Act (ADA) (PL 101-336)

This federal legislation requires that "No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity."

The ADA is divided into five sections (known as "titles"):

• Title 1 prohibits employment discrimination.
• Title II deals with discrimination in public settings.
• Title III protects the rights of persons with disabilities in privately operated settings.
• Title IV requires telephone companies to install telecommunications relay services for persons with speech and hearing impairments.
• Title V includes a number of miscellaneous provisions.

Title II mandates that a public entity, including its educational programs, shall make reasonable modifications to policies, practices, or procedures when modifications are necessary to avoid discrimination on the basis of a disability. Title II also requires the provisions of accessible facilities and auxilliary aids and services by public programs. Title III generally applies to private schools or other places of education, but does not apply to religiously controlled educational entities.

Rights and responsibilities of Learners with Disabilities

Students with disabilities

• have the right to participate in educational programs without discrimination;
• have the right to reasonable accommodations in courses and examinations;
• have the responsibility to identify themselves as having a disability and request specific accommodations in a timely fashion; and
• have the responsibility to provide documentation concerning their disabilities and the need for accommodations.

Rights and Responsibilities of Literacy Programs

Literacy programs that enroll adults with documented disabilities are responsible for ensuring that the courses and examinations are accessible, and for providing reasonable accommodations in the delivery of course materials and in examinations.

Literacy programs have the right to identify and establish the abilities, skills, and competencies fundamental to its academic programs and courses, and to evaluate each learner's performance on this basis.

Legal Implications of Serving Adults with Learning Disabilities

Literacy programs may not discriminate against individuals with disabilities when admitting them to a program or providing them with services. When providing services, literacy programs must offer accommodations that will assist adults with learning disability to have an equal opportunity to participate in the program.

Adults with disabilities have the right to not be discriminated against when participating in literacy programs. Adults with disabilities also have a right to choose whether to disclose their disability status. If adults expect disability-related accommodations, they have the responsibility to make their disability known, to provide appropriate documentation, and to request specific accommodations.

Literacy programs must provide "reasonable accommodations" to qualified persons with disabilities. Reasonable accommodations (sometimes called auxilliary aids and services) are accommodations that make the program accessible to the individual with a disability. Such accommodations must be afforded to a qualified individual with a disability unless the service provider can demonstrate that the accommodation would impose undue hardship on the literacy programs, or constitute a substantial alteration to the nature of the program.

Examples of accommodations that educational programs may provide for adults with learning disabilities, depending on the particular disability and need for accommodation, include, but are not limited to:

• extended time for completing tests;
• books on tape;
• reduced visual or auditory distractions, such as a private room for tests;
• auxiliary aids and assistive technology, such as calculators, high-lighters, and computers;
• large-print materials;
• alternative format for instructions, such as audiotaped instructions in addition to printed instructions for taking a test; and
• note takers.

With specific regard to the General Educational Development (GED) Tests, the following are the principal accommodations indicated as allowable by the GED Testing Service, subject to verification of documented disabilities:

• an audiocassette edition of the test with printed reference copy and extra time for completion;
• use of a scribe;
• extended time for completing the test;
• use of a calculator;
• frequent breaks with or without extended time;
• a private room; and
• a large-print test edition.

Frequently Asked Questions About Legal Issues

Why do literacy providers need to share legal information with learners?
Literacy providers need to understand the legal rights of learners with disabilities and share this information with learners so that together they can make informed decisions which will both facilitate learning and help learners meet with success. This knowledge can provide the basis for setting realistic expectations on the part of learners so that they can make appropriate requests for assistance. It also can help program providers deliver the types of literacy services necessary to enhanced opportunities for the success of adults with learning disabilities. It is important to note that adults who receive services under IDEA when they were in school may think that they are entitled to the same level of support or services under Section 504 and ADA. Neither Section 504 nor ADA guarantees the right of an adult to a free appropriate education the way IDEA does for school-age youngsters (and young adults before their 22nd birthday if they have not received a regular high school diploma). Adults do, however, have the right of equal access to programs and services for which they are otherwise qualified, as well as to reasonable accommodations in program activities.

What guidelines should be considered in selecting an accommodation?
Although a menu of accommodations may generally appropriate to consider in assisting adults with learning disabilities, some programs develop guidelines about when to select a particular modification for a specific person. In general, the selection of a specific accommodation is frequently based on individual disabilities and needs (one size does not fit all) and should

• allow the most integrated experience possible;
• not compromise the essential course or program requirements;
• not pose a threat to personal or public safety; and
• not impose an undue financial or administrative burden on the program.

Can we refuse to serve adults who have learning disabilities?
No. Many programs have established policies and procedures to ensure that staff members do not intentionally or accidentally deny participation in a service, program, or activity simply because of learning disabilities.

Do we need to keep records confidentially?
Yes. However, each program needs to develop a plan related to how to achieve this. Programs frequently develop policies, procedures, and practices for ensuring the confidential treatment of all disability-related information. Disability-related information is often stored in locked files with limited access. It should be shared only when the need to know directly relates to some specific aspect of this confidential information, and the person with a disability has signed a release.

Do we have to obtain the learner's consent to begin a formal process confirming or ruling out learning disabilities?
Yes, the law requires informed consent to obtain records as well as to conduct testing that is not a uniform procedure for all learners. If screening is uniformly administered to all learners and is a part of the usual intake procedure of the program, it is not necessary to obtain informed consent. However, if screening is done selectively for certain learners or if certain learners are referred for diagnostic testing, informed consent must be obtained. Literacy programs should have or should develop policies, procedures, and practices for obtaining the informed consent of persons suspected of having a learning disability. The number of organizations that can provide additional information about legal issues surrounding learning disabilities is increasing. The Resources for Learning section provides some of the groups that we can be contacted for more information about the rights and responsibilities of persons with learning disabilities under the law.