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A cognitive impairment is characterized
by lack of development in the cognitive domain, Impairment of adaptive
behavior, manifested during the developmental period, and adversely
affects educational performance.
Cognitively impaired
persons are defined as having either a psychiatric disorder (e.g.,
psychosis, neurosis, personality or behavior disorders), an organic
impairment (e.g., dementia), or a developmental disorder (e.g., mental
retardation) that affects cognitive or emotional functions to the
extent that capacity for judgment and reasoning is significantly
diminished.
Types of Cognitive
Disabilities (from WebAim.org)
The concept of
cognitive disabilities is extremely broad, and not always
well-defined. In loose terms, a person with a cognitive disability has
greater difficulty with one or more types of mental tasks than the
"average" person. There are too many types of cognitive disabilities
to list here, but we will cover some of the major categories. Most
cognitive disabilities have some sort of basis in the biology or
physiology of the individual. The connection between a person's
biology and mental processes is most obvious in the case of traumatic
brain injury and genetic diseases, but even the more subtle cognitive
disabilities often have a basis in the structure or chemistry of the
brain.
A person with profound cognitive disabilities will need assistance
with nearly every aspect of daily living. Someone with a minor
learning disorder may be able to function adequately despite the
disorder, perhaps even to the extent that the disorder is never
discovered or diagnosed. Admittedly, the wide variance among the
mental capabilities of those with cognitive disabilities complicates
matters somewhat. In fact, one may reasonably argue that a great deal
of Web content cannot be made accessible to individuals with profound
cognitive disabilities, no matter how hard the developer tries. Some
content will always be too complex for certain audiences. This is
unavoidable.
Nevertheless, there are still some things that designers can do to
increase the accessibility of Web content to people with less severe
cognitive disabilities.
Learning Disabilities
Learning disabilities affect a person's ability to process
information. In some cases, the individual has difficulties
interpreting what is seen or heard. In other cases, the individual can
interpret the information but has difficulties making mental
connections--or links--between different pieces of information. The
person's written or spoken language may be affected, or the ability to
read or do math. It is tempting to think that people with learning
disabilities have below average intelligence. This is not always the
case. Sometimes individuals with learning disabilities excel in areas
where they do not have the learning disability. For example, an
individual with dyscalculia (math learning disability) may be an
excellent writer, artist, linguist, or whatever else. The learning
disability might manifest itself only when that person is performing
mathematical activities. In other cases, the individual has multiple
learning disabilities, or learning disabilities of a broader nature,
thus affecting more than one area of learning.
Dyslexia
"Dyslexia is one of several distinct learning disabilities. It is
a specific language-based disorder of constitutional origin
characterized by difficulties in single word decoding, usually
reflecting insufficient phonological processing abilities. These
difficulties in single word decoding are often unexpected in relation
to age and other cognitive and academic abilities; they are not the
result of generalized developmental disability or sensory impairment.
Dyslexia is manifest by variable difficulty with different forms of
language, often including, in addition to problems reading, a
conspicuous problem with acquiring proficiency in writing and
spelling."
-The Definition of Dyslexia as adopted by the Research Committee of
the International Dyslexia Association - external link, May 11, 1994
and by the National Institutes of Health, 1994.
Reading disabilities, such as dyslexia, are the most common type of
learning disability. In fact, an estimated 15-20% of the population
has some sort of language-based learning disability. Among these,
dyslexia is the most common. Evidence suggests that dyslexia is an
inherited condition found among both males and females of all ethnic
backgrounds.
Attention Deficit Hyperactivity Disorder (ADHD)
Some people mistakenly think of ADHD as a learning disability. It
is true that some people with ADHD have difficulties learning, but
oftentimes this is due to their distractibility, rather than to any
kind of inability to process information. People with ADHD can be
impulsive, easily distracted, and inattentive. On a positive note,
some people with ADHD are highly creative and very productive in short
bursts, with an abundance of energy and enthusiasm. On a less positive
note, it can be difficult for people with ADHD to stick to a task for
a long period of time. On the Web, flashing banner ads can be
distracting, as well as anything that draws a person's attention away
from the main content.
Brain Injury
Some causes of brain injury include traumatic head injury, stroke,
and illness (such as meningitis or brain tumors). Every brain injury
is different, and there is no reliable way to predict how a person's
brain will be affected. After a person receives an injury to the head,
medical professionals perform a series of neurological and
psychological examinations to determine what areas of the brain were
damaged. Some brain injuries result in behaviors that are hardly
noticeable at all, whereas others are immediately obvious. The
severity of the damage will determine how effectively the person will
be able to process information on Web pages.
Genetic Diseases
Genetic sources of cognitive disabilities include Down's syndrome,
autism, and dementia, in order of least to most severe. Some
individuals with Down's syndrome are able to function at a high level,
while others are more limited in the cognitive capacity. The more
severe the cognitive disability, the harder it is for the individual
to comprehend Web content. If a developer wishes to use the Web to
communicate to people with severe cognitive disabilities, it may be
necessary to use little or no text at all. Graphics, audio, video, and
animations may be the most effective way to communicate to this
audience. That does not mean that all of your Web content must
presented in a graphic-only format. Much of the content of the
Internet in general is not even suited to people with severe cognitive
disabilities. It is simply beyond their capacity to comprehend.
However, if you are designing a site that is meant to communicate
directly with such individuals, you should use as many meaningful
graphics as possible.
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Michigan Special
Education Rule 340.1705 Cognitive impairment; determination.
Rule 5.
(1) Cognitive impairment shall be
manifested during the developmental period and
be determined through the
demonstration of all of the following behavioral characteristics:
(a) Development at a rate at or below
approximately 2 standard deviations below the mean
as determined through intellectual
assessment.
(b) Scores approximately within the
lowest 6 percentiles on a standardized test in reading
and arithmetic. This requirement will
not apply if the student is not of an age, grade, or mental
age appropriate for formal or
standardized achievement tests.
(c) Lack of development primarily in the
cognitive domain.
(d) Impairment of adaptive behavior.
(e) Adversely affects a student's
educational performance.
(2) A determination of impairment shall
be based upon a comprehensive evaluation by a
multidisciplinary evaluation team,
which shall include a psychologist.
R 340.1738
Programs for students with severe cognitive impairment.
Rule 38. Programs for
students with severe cognitive impairment shall be operated as
follows:
(a) There shall be 1 teacher and 2 instructional aides for a maximum
of 12 students. The maximum number of students may be extended to 15
if an additional instructional aide is assigned with the placement of
the thirteenth student. At least 1 full-time teacher and 1 fulltime
aide shall be employed in every program for students with severe
cognitive impairment.
(b) Programs for students with severe cognitive impairment shall
consist of a minimum of 230 days and 1,150 clock hours of instruction.
The first 5 days when pupil instruction is not provided because of
conditions not within the control of school authorities, such as
severe storms, fires, epidemics, or health conditions as defined by
the city, county, or state health authorities, shall be counted as
days of pupil instruction. Subsequent days shall not be counted as
days of pupil instruction.
(c) Teachers shall be responsible for the instructional program and
shall coordinate the activities of aides and supportive professional
personnel.
(d) Instructional aides shall work under the supervision of the
teacher and assist in the student’s daily training program.
(e) Program assistants may assist the teacher and the instructional
aides in the feeding, lifting, and individualized care of students
with severe cognitive impairment.
(f) A registered nurse shall be reasonably available.
R 340.1739 Programs for students with moderate cognitive
impairment.
Rule 39. Programs for students with moderate cognitive
impairment shall be operated as follows:
(a) There shall be 1 teacher and 1 teacher aide for a maximum of 15
students.
(b) There shall be 1 lead teacher and a maximum of 3 instructional
aides for a maximum of 30 students, with not more than 10 students for
each aide.
R 340.1740 Programs for students with mild cognitive impairment.
Rule 40. Programs for students with mild cognitive impairment
shall be operated as follows:
(a) Elementary programs for students with mild cognitive impairment
shall serve not more than 15 different students. When an elementary
program for students with mild cognitive impairment has 12 or more
students in the room at one time, an aide shall be assigned to the
program.
(b) Secondary programs for students with mild cognitive impairment
shall have not more than 15 different students in the classroom at any
one time and the teacher shall be responsible for the educational
programming for not more than 15 different students.
How and When to
Accommodate Cognitive Disabilities Under the Americans with
Disabilities Act
Written by Chuck Levin, Attorney; Revised by Kathy Wilde,
Litigation Director, March 2002
I. Introduction:
The Americans with Disabilities Act (ADA) is a landmark law that
prohibits discrimination based on disability in the areas of
employment, governmental services, public accommodations offered by
private entities, and telecommunications. This law protects people
with either physical or mental disabilities.
This paper will tell consumers and those involved in consumers' lives
how the ADA may apply to people with a cognitive disability. By
"cognitive disability", we mean someone who has difficulty reading,
writing and understanding, due to mental retardation, autism,
traumatic brain injury, or other disability. Examples based upon real
life situations illustrate the kinds of issues and considerations that
may be involved with this population. We give examples of reasonable
accommodations that employers, businesses and public agencies may need
to provide to give people with cognitive disabilities equal
opportunities under the law. Reasonable accommodations for a person
with a cognitive disability may look quite different than those for a
person with a physical disability.
If, after reading this pamphlet, you have questions concerning how
your worksite, business or agency can accommodate people with
cognitive disabilities, or if you want to learn more about people with
developmental disabilities, please call The Arc-Multnomah, 223-7279.
Legal questions concerning the ADA may be directed to the Oregon
Advocacy Center, (503) 243-2081, or 1-800-452-1694 (voice), (503)
323-9161 (TTY) or 1-800-556-5351 (TTY).
This brochure does not, and is not meant to, explore all the
provisions and protections within the ADA. Instead, it offers a broad
overview. It is not a substitute for legal advice from an attorney.
The particular facts of each situation will determine the existence of
an ADA claim. To learn more about the existence of a possible ADA
violation in a particular context, contact an attorney with relevant
experience.
II. Title I Overview (Employment)
Title I of the ADA applies to employment in the private and public
sector. All employers with more than 15 employees are currently
covered by the Act. Title I makes it illegal for these employers to
discriminate against persons with disabilities in any terms of
employment, including the job interview, advancement opportunities,
work conditions, salary, and benefits. Title I, though, does not
require an employer to hire someone who cannot perform the essential
functions of the job in question with reasonable accommodation. Nor
does it require an employer to choose a qualified person with a
disability over a qualified person without a disability. But it does
require that people with disabilities be given the same chance as
everyone else in the workplace.
Following is an analysis of a hypothetical fact situation which
explores the legal process involving Title I.
III. Title I: Example and Analysis
Frank, whose IQ is 70, wants to apply for a job at a grocery
store. Because of Frank's behavior, or his mannerisms, or his speech,
or because Frank tells the manager, the manager knows that Frank has a
cognitive disability.
The application procedure at the grocery store consists of two parts:
a job application form and an interview. Frank picks up the
application form, but has trouble understanding it and fills it out
incorrectly and incompletely.
The manager calls him to schedule the interview.
ADA Implications and Issues
If the manager was not aware that Frank had a disability, and did not
regard him as having a disability, then he and the grocery store could
not be liable for any wrongdoing under the ADA, because under the ADA,
an entity can only discriminate against an individual with a
disability if it is aware of the disability, or, if the person does
not actually have a disability, if it regards the person as having a
disability.
Here, the manager knows about Frank's disability. The Manager must
therefore determine if Frank can meet the "essential functions" of the
job with or without reasonable accommodation. If he cannot meet the
essential functions of the job, even with reasonable accommodation,
the manager is not required to further consider him for the position.
Title I requires employers to make reasonable accommodations to known
disabilities of employees and applicants when necessary to afford them
the same opportunity as others. Reasonable accommodations may be
creatively developed and tailored to allow one to obtain and retain a
job. The regulations state that whether an accommodation is considered
"reasonable" will depend upon:
The nature and net cost of the accommodation (taking into account the
availability of tax credits and deductions, and/or outside funding);
The overall financial resources of the facility involved in the
provision of the reasonable accommodation, the number of persons
employed there, and the effect on expenses and resources;
The overall financial resources of the covered entity, the overall
size of the business of the covered entity with respect to the number
of its employees, and the number, type and location of its facilities;
The type of workplace of the covered entity, including the
composition, structure and functions of the workforce of such entity,
and the geographic separateness and administrative or fiscal
relationship of the facility or facilities in question to the covered
entity; and The impact of the accommodation upon the operation of the
facility, including the impact on the ability of other employees to
perform their duties and the impact on the facility's ability to
conduct business.
If the accommodation is not reasonable, then it is an "undue burden"
and the employer is not required to provide it. In our example, as a
practical matter, the Manager may first have to provide reasonable
accommodations to Frank in the application process in order to find
out whether Frank can meet essential job functions. Accommodations may
include:
providing an assistant to help Frank complete the job application
form;
explaining to Frank how to fill out the job application form in
language he can understand;
waiving the requirement that he fill out the job application sheet, in
favor of the interview (unless the job would require that he be able
to fill out similar types of forms or paperwork);
enlisting the support, if necessary, of known case managers or of
Frank's advocates to get Frank to the interview.
The ADA prohibits employers asking applicants about any disability.
They can inquire only about their ability to do the job. Thus, the
employer may ask questions designed to find out whether Frank can meet
the essential functions of the job. The following questions are
probably not permissible:
"Has your IQ ever been measured: What is it?"
"Do you have any disabilities?"
"Do you take any medications?"
"Have you ever lived in a group home?"
The following questions are probably permissible:
"Where do you live?"
"Can you add and subtract (if the job requires this)?"
"Can you lift 40 pounds at a time (if the job requires this)?
"Do you have any case managers or advocates?" (would you mind if I
contact them?)
Note: although this question may seem disability-related and therefore
impermissible, in those instances where an applicant's disability is
readily apparent, the employer's knowledge of this information will
allow him to communicate with those key players in the applicant's
life that will be knowledgeable about the kinds of reasonable
accommodations that may be required in order for the person to remain
on the job successfully. Also, such persons may be in a position to
provide required counseling or training to the individual which the
employer may not be required to provide, which could mean the
difference between the person's ability to hold the job and getting
fired.
Even if Frank is qualified to perform the essential functions of the
job, the Manager is not required to hire him. The ADA is not an
"affirmative action" law. However, if the Manager chooses to hire
someone else instead of Frank, the reason for his doing so may not be
related to Frank's disability, unless the disability precludes Frank
from performing the essential functions of the job.
Assume Frank is hired for the job, but he cannot do it without
reasonable accommodations. Depending on the nature of the job and
Frank's precise limitations, such accommodations could include:
flex-time
(However, if Frank cannot meet work standards or quotas set by the
employer, than he is not "qualified" for the job and the employer need
not hire or retain him.)
providing a reader
providing other auxiliary aides or services
first consulting with Frank's advocate or case manager if Frank is
having problems on the job which would ordinarily lead to termination,
and giving such people the opportunity to work with Frank to cure the
identified problem.
If the employer does not know that Frank has a disability, but is
suspicious that he does, may he ask him? No. An employer may not ask
disability-based questions of applicants.
If Frank asks for a reasonable accommodation but the employer doubts
whether he has a disability, the employer may ask Frank to produce
some sort of evidence, like a doctor's letter or evaluation.
During the application process, can the grocery store insist that
Frank take a drug test?
Yes. Drug tests are permitted under the ADA, so long as they test only
for illegal drugs, and not prescription drugs. If a drug test shows
that the applicant is taking an authorized drug, the employer may not
act against the employee or applicant for such use, and in any court
proceeding, the applicant may defend that such use is occurring under
the supervision of a licensed medical practitioner.
Current illegal drug users, though, are not considered people with
disabilities under the ADA. A person who uses drugs illicitly cannot
claim any protection under the act if their drug use is discovered as
a result of a drug test.
Physical exams are not permitted at all in the application process,
until an offer of employment is made. An offer of employment may be
made contingent upon the passing of a physical examination, so long
as:
all job applicants are required to take the same exam;
all information acquired in the course of the exam is kept
confidential; and
if, as a result of the exam, the applicant is denied employment, that
the exam is consistent with business necessity and does not
discriminate or tend to discriminate against people with disabilities.
IV. Title II Overview
Title II of the ADA pertains to all public entities, which the Act
defines as:
Any State or local government;
Any department, agency, special purpose district, or other
instrumentality of a State or States or local government; and
The National Railroad Passenger Corporation, and any commuter
authority (as defined in section 103(8) of the Rail Passenger Service
Act).
Title II imposes almost identical requirements upon public entities as
Section 504 of the Rehabilitation Act imposes on entities receiving
federal financial assistance. That is, public entities cannot
discriminate against "qualified individuals" in their administration
of services, programs, benefits, privileges, or opportunities. A
person is a "qualified individual" if she meets the "essential
eligibility requirements" of the program in question. If a person is a
"qualified individual", then the public entity must make reasonable
accommodations or provide auxiliary aids in order to make its programs
or activities accessible.
V. Title II Example and Analysis
Jill, who has moderate mental retardation, goes to Senior and
Disabled Services Division (SDSD) to find out about possible benefits
and programs she may be eligible for. The receptionist gives her a
brochure with the descriptions of the programs and benefits. Jill does
not readily understand it, as the language is often technical and
complex.
ADA Implications and Issues
SDSD is a public entity and is therefore covered by Title II of ADA.
As a Title II entity, SDSD must make its programs accessible to people
with disabilities. Program accessibility means more than just physical
access. It also includes making application and program information
readily understandable.
Therefore, SDSD must make the application forms and program
descriptions accessible to Jill. Options may include:
providing a staff person to explain the materials to Jill so that they
are meaningful and comprehensible to her; or assist in filling out
necessary paperwork.
developing new, or supplementary materials geared towards people who
do not read, write, or comprehend written information easily.
These are reasonable accommodations which would allow Jill access to
SDSD's programs. The agency's refusal to provide them, or similar
accommodations, will likely constitute a violation of ADA.
As one of SDSD's target groups is people with disabilities, it should
have people and procedures set up to identify prospective clients with
disabilities. Standard questions that might be asked at intake for
this purpose include whether the person has a history of special
education; has a case manager, or has been hospitalized.
VI. Title III Overview (Public Accommodations)
Title III prohibits discrimination by private entities that offer
public accommodations. Public accommodations include inns, hotels,
motels, restaurants, bars, movie theaters, concert halls, stadiums,
auditoriums, bakeries, grocery stores, shopping centers, laundromats,
dry cleaners, banks, hair salons, lawyers' offices, museums,
libraries, parks, zoos, private schools, day care centers, gymnasiums,
spas, hospitals, doctor's offices, and other such places where the
public is invited.
Title III prohibits public accommodations from discriminating against
an individual on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges, advantages,
or accommodations that the public accommodations offers.
Public accommodations must make reasonable modifications in policies,
practices, or procedures when to do so is necessary to afford goods,
services, facilities, privileges, advantages, or accommodations to
individuals with disabilities, unless the modifications would
"fundamentally alter" the nature of what is being provided, or result
in an "undue burden" to the public accommodation.
Public entities must further take steps to ensure that individuals
with disabilities are not excluded, denied services, segregated or
otherwise treated differently than other individuals because of the
absence of auxiliary aids and services, unless such auxiliary aids and
services would create an undue burden or fundamentally alter the
nature of what is being offered. "Auxiliary aides" include such things
as interpreters, notetakers, transcription services, written
materials, telephone handset amplifiers, assistive listening devices,
assistive listening systems, telephones compatible with hearing aids,
closed cation decoders, open and closed captioning, TTYs, videotext
displays, readers, taped texts, audio recordings, brailled materials,
large print materials, and the acquisition or modification of
equipment or devices.
Title III Examples and Analysis
Example 1:
John enters a restaurant to eat dinner. John is cognitively impaired
and non-verbal. The manager comes by John's table and asks John to
prove to him that he is carrying enough money to pay for a meal at the
restaurant.
The waiter then comes to take his order. Upon discovering that John
cannot communicate what he wants, the waiter ignores him or asks him
to leave.
ADA Implications and Issues
The restaurant is a public accommodation operated by a private entity,
and is therefore covered under Title III of ADA.
The restaurant cannot exclude John because he is cognitively impaired
and non-verbal.
A restaurant would typically have the authority to question customers
for the purpose of insuring that they have the capability of paying
for their meals and service. However, restaurants do not question
everyone about this, they are selective. The way they select whom to
question may be suspect. If they are questioning all people with
disabilities because of their fear, prejudice, or stereotype that
people with disabilities are unlikely to be able to pay, this may
violate the ADA. On the other hand, if they question a particular
individual with a disability for reasons which may relate to the
disability tangentially, but which are the same reasons that they
would question anyone else, such as dirty or disheveled appearance,
such questioning may pass muster under ADA because they are not
disability-based.
John may require auxiliary aids to read or understand the menu. The
waiter could easily serve in this capacity by reading and explaining
the menu to him. John may then point to items on the menu to convey
his wishes. By simply ignoring him, as in the example, the restaurant
would be violating ADA by failing to take such steps necessary to
ensure that he is not denied services or otherwise treated differently
than other individuals because of the absence of auxiliary aids and
services. If auxiliary aids and services are unsuccessful at bridging
the communication gap, the waiter would have justification for not
serving John.
Example 2:
John, an individual with a cognitive impairment, and who has some
challenging behaviors, visits a shopping mall. He is in the central
area of the mall, shouting loud and rude remarks at passersby,
including some obscenities. Some shoppers complain to mall
authorities, who order John to leave the mall and not come back.
Nonetheless, John later returns to the mall, and hangs out in a
jewelry store there. The owner of the store, seeing that John is not a
customer who is likely to be able to afford to buy jewelry from him,
orders him to leave.
ADA Implications and Issues
The mall as a whole is covered under Title III.
The mall may impose neutral rules concerning conduct expected of those
who visit the mall. Such rules can prohibit violent or disruptive
behavior, to enable the mall to conduct it's business in an orderly
manner.
In any event, the mall may require John to leave if he constitutes a
direct threat to the health or safety of others in the mall. "Direct
threat" means a "significant risk to the health or safety of others
that cannot be eliminated by a modification of policies, practices, or
procedures, or by the provision of auxiliary aids or services." While
John's conduct likely does not constitute a "direct threat," John
could still be excluded from the mall if he does not meet the mall's
neutral rules concerning conduct of shoppers.
If John wants to return to the mall, against the mall's order that he
not come back, he should be able to, if he meets the mall's neutral
conduct rules. Even if the mall has neutral rules which allow it to
keep disruptive people off the mall grounds for some unspecified time
in the future, it must modify such rules or policies to accommodate
John's disability.
If John is not being disruptive in the jewelry store, the owner cannot
order him to leave his store, unless he also orders everyone else to
leave who he believes is not likely to purchase jewelry from him,.
whether or not disabled. Many shoppers go to malls to browse, and this
is commonly accepted. John has the same right to browse in mall stores
as anyone else.
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