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Salome Heyward Presents: Disability Accommodations in Clinical Settings
Tues, 22 April 2014
Salome Heyward is a civil rights attorney with over 30 years’ experience in the field of disability discrimination law and disability management. Dr. Heyward is frequently sought out by media personnel to provide legal background for their productions concerning disability issues, e.g., NBC, CNN, ESPN, the New York Times, the Christian Science Monitor, and the Chronicle of Higher Education. She is a well-known and respected speaker and trainer in the area of disability discrimination law and disability management. She has been a featured presenter for national associations and organizations such as the American Association for Affirmative Action, the Association of Higher Education and Disability, the Council of State Governments, the National Association of State Personnel and the International Learning Disabilities Association. Dr. Heyward’s firm,Salome Heyward & Associates, helps post-secondary institutions, agencies and employers develop and maintain effective and compliant ADA/Section 504 programs and services. Services provided include: Program and function audits; case evaluations; ADA consulting; and complaint review and analysis.
JON: All right.
We're good.
Hello, everyone. Thanks so much for making it.
Sorry for the late start but we kicked somebody out of the room and now we're here.
I'm Jon McGough, the Assistant Director for Disability Resources, and I think I still get my newbie card for a little while.
We wanted to thank School of Medicine for helping us out with this room and bringing Salome Heyward to campus.
I will condense my introduction of Salome, but she's fantastic.
Salome is a civil rights attorney with over 30 years' experience working with the Department of Education. She's been a faculty member of a law school and gives good advice to schools and institutions around the country.
Maybe it's common in academia. Many of us have opinions but I haven't been tempted to argue with Salome yet and I hold what she says in very high esteem and I'm sure you will too.
Salome Heyward: Good morning.
I want to try to make this for you all sort of a, a work session where I can possibly answer your questions or help you with some case situations that might be troubling for you.
so how I've styled my, my prepared comments is just really to touch on the kinds of things that institutions tend to have problems with in terms of the clinical environment.
I think the clinical environment is, you know, it's a little scarier for us because you know, now we're moving from the safety of the academic classroom and, and we're sending our students out there and they're going to encounter third parties.
That means issues of patient safety, how our students work with our colleagues in an employment environment, and so it brings up additional kinds of issues and concerns that we need to have.
And many of those issues and concerns are not unique to, to our students with disabilities. They, they impact all of the students that we send into a clinical environment.
What I'm fond of saying to, to programs is that you know, if we're going to be honest with ourselves, sending any student into a clinical environment is sort of a crapshoot; it really is, you know. It's like, stuff happens.
Group: (Laughing).
Salome Heyward: So we have to keep reminding ourselves of that and not somehow make it, seem impossible because some of those students might have disabilities.
I think you know, as educators, you know, you have students that are academically superior and you send them into the clinical environment and it's Godawful.
You have other students who academically, you know, they may not do so great. You send them into a clinical environment and they're the star of that environment.
So the first thing that we have to keep in mind is that you know, this is something that's about all of our students, and, and you know, our concerns are related to students as a whole, not just the fact that we may have students who have some disabilities.
And the other thing that we have to keep in mind is that the manner in which we accommodate students is very different in a clinical environment, and the manner in which we accommodate students in an academic environment.
It's not that we don't accommodate our students; it's that we might be accommodating them in a different way in a clinical environment, and the first thing that we have to remind ourselves is that we can't, you know, we can't make stereotypedtype decisions about our students with disabilities.
For example, there's a, a case involving an institution in which a student had academic problems. He goes into the clinical environment. He has difficulty interacting with his colleagues, getting things done.
Subsequently because of his grade point average he's suspended.
He's allowed to petition to return.
As a part of his petition to return, he's been evaluated while he was out and he provides information that he's bipolar, and as a part of that discussion whether to readmit the student, basically the committee goes, we don't see how someone with a bipolar condition can possibly survive in this program working 7080 hours when they're a resident and what have you.
That judgment ultimately places the institution in violation of the law, because it has nothing to do with the individual abilities of this particular student; it's basically just the stereotypical judgment based on the condition, the bipolar condition, that the student can't possibly be successful.
And so those are the kinds of cases where institutions have trouble because they make a decision based upon the mere existence of a disability or a medical condition and based on that decision they judge the student not to be qualified, while at the same time that institutions have responsibilities, students have responsibilities as well.
One of the things that we have to remind students is that they have a continuing responsibility to be qualified, to participate in the program that they're enrolled in.
And so a student who is qualified and is properly accommodated in an academic environment, when that student now moves into a clinical environment, the student may in fact end up not being qualified.
For example, a student with physical disabilities who's in a physical therapy program, and one of the standards of the program is the student needs to be able to handle 2550 pounds because they're assisting patients, they have to have physical strength in their arms and hands.
If the student is unable to do those things, while the student is successful in the academic course work, the student is not qualified in the clinical environment.
So the obligation of the student throughout their academic career and their existence in the program is to be qualified, and when we move into the clinical environment, we being students then are faced with having to meet technical standards, things like the ability.
If you're in physical therapy, to be able to lift or handle 25 or 50 pounds.
If you're in medical school, the ability to perform CPR and all of the things that we ask medical students to do.
Those are technical standards of the program.
There are also standards of the profession that students have to meet.
Licensure or standards of the program that students have to meet, all of those things that end up on the table when we start talking about the qualified status of students in the clinical environment, and students are obligated to meet those technical standards.
So a student who would ask for an accommodation that sort of flies in the face of meeting those types of standards would end up, you know, you would end up making a judgment that the student is not qualified.
For example, a student in a dental hygiene program, and one of the requirements of the program is that students work on each other as patients, and the reason why the program had this requirement was twofold:
One, not enough volunteers or people showing up at the dental school to, to have their teeth cleaned and be worked on;.
Two, the need for students who are going to be dental hygienists to have a sense of the patient's experience when they're being worked on.
and this student said well, you know, I have a diabetic condition. I'm concerned about being cut, infections.
So the student's request was to have that requirement waived.
Ultimately when the student filed a complaint because the program would not waive the requirement, the Department of Education sided with the program, said it was a legitimate rational requirement of the program and in order for the student to be qualified to continue in the program and subsequently graduate from the program, the student must meet, must be able to participate and meet that technical standard of the program.
So you know, students have a responsibility to, to be qualified as well.
One of the issues for institutions when we talk about technical standards, professional standards, and those things is that we have institutions have to be careful in terms of how we identify those things that are essential requirements.
And one of the, one of the things that happened when the Americans with Disabilities Act was passed, the standard, the regulations in the law said individuals with disabilities are qualified who can perform the essential requirements of the job.
And so what happened as, when the law was passed is, all of these employers and companies grew up around the country that said okay, we'll identify the essential requirements of the job for you.
And then what that then moved to Allied Health programs, medical school programs, all programs for which students were being trained in a particular profession or to do a particular job, those programs then began to develop what they called technical standards for their programs, and I worked for the Department of Education when programs first started developing technical standards.
And those initial forays into developing technical standards were really just descriptions of disabling conditions.
I remember our first reviews and when we worked with nursing programs and medical schools, they would hand us technical standards that said:
The ability to hear.
The ability to see.
The ability to walk.
The ability to stand.
And we went, you're just describing disabling conditions.
So the technical standards for institutions are those things that all of your students must be able to perform, and so it's what's appropriate for institutions is to begin to describe those things that are the skills and the abilities that you would measure all of your students by.
And so as I said earlier, it makes sense to have a requirement that a student in a physical therapy program can handle 2550 pounds.
It makes sense that a student in a dental hygiene program may have to act as a patient and participate as that being a required part of the program.
It makes sense that a student who's enrolled in a medical school program would have to have the physical strength to perform CPR and those kinds of things that are required of, of students.
what doesn't make sense?
I I was at an institution recently, that's a client institution of mine, and we were working with their, they have a culinary institute.
And so we were working with the culinary institute and they were developing technical standards for people who were going to be chefs.
You're going to be a chef. You're cooking in a kitchen.
And one of their technical standards was that the person must be able to lift and move 50 pounds independently.
And my question for the dean of the program, the chairperson of the program is: why is that an essential, why is it essential for a chef to be able to lift and move 50 pounds independently?
>: Hmmm.
Salome Heyward: Why would you have to do it alone?
Why wouldn't you use a hand truck?
What, you know, or some other tool to aid you in moving that, and how often would a chef have to move 50 pounds independently in a kitchen environment?
That doesn't equal an essential requirement of performing the skill of a cook in a kitchen and the things that one would have to do.
So we have to look at our essential requirements in terms of the skills and the abilities that our students have to perform within the clinical environment that we place them in, to judge what are essential requirements.
The next thing that we have to do is once we identify what we consider to be essential requirements of our program, then our obligation is to apply those requirements and standards in a nondiscriminatory manner, so that we can't be guilty of treating our students with disabilities differently in the way that we apply those requirements and standards.
So you know, I like to use cases that illustrate institutions who do it correctly and institutions who do it incorrectly.
So in, in our first case we have a student who is in a vet tech program.
The student has a visual impairment and also a, a minor hearing impairment.
And a part of the issue for the the student in the clinical environment in the vet tech program is the kinds of things that you need to be able to do is you need to recognize animal behavior, and when you're treating and working with an animal, is the animal scared, is the animal aggressive, what, what are you seeing or sensing in the animal that you're working with, you need to be able to respond and assist your colleagues in working with animals.