By: Sydney L Steele
When is extended time an appropriate accommodation under Title III of the Americans with Disabilities Act, as amended by the ADA Amendments Act of 2008 (ADA)? And if extended time is an appropriate accommodation for a “person with disabilities,” how much time?
More and more test takers or candidates, particularly those taking high stakes licensure examinations in medicine, law or other professions, argue that they are disabled under the ADA and request additional time to complete the examination. Are the requestors (1) disabled and therefore legitimate, (2) simply suffering “test anxiety” that most of us experience to some degree, or (3) is the test taker consciously attempting to obtain an advantage over other examinees? A candidate has every incentive to maximize the score on a standardized examination in a very competitive environment as is often used by medical residency programs or law school admission offices.
Regardless of the motive, when a testing entity provides additional time to a candidate taking a standardized timed examination, that agency must do so without either advantaging or disadvantaging any candidate, disabled and non-disabled. In other words, ever candidate should be provided an “even playing field,” not one skewed either way for any candidate.
What does the ADA require?
The ADA requires that a person or entity – a testing agency or provider – offering “examinations or courses related to applications, licensing, certification, or credentialing for secondary or post-secondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.” 42 U.S.C. § 12189 (emphasis added).
It is now much easier for candidates to demonstrate that he or she is disabled as that term is defined under the ADA. For example, in a recent case, the Law School Admission Council agreed to a far-reaching Consent Decree. The LSAC administers the Law School Admissions Test (LSAT) that is used by law schools throughout the nation to determine who is admitted. The competition is fierce for spots in many of the elite law schools. After years of litigation with the Department of Justice, the LSAC agreed to a much more lenient proof of an examinee’s claim of disability, and to cease “flagging” examinee scores who took the examination with extended time – and incidentally also agreed to pay over $7,730,000 in compensatory damages and penalties.
Consequently, the focus now is shifting from whether the applicant qualifies as a person with disabilities under the ADA, to what is the appropriate accommodation to ensure an “even playing field” for all test takers. And because “flagging” examination scores is now being challenged, it is even more critical that a disabled candidate not be either under-accommodated or over-accommodated, but accommodated appropriately.
Once it is concluded that a person requesting additional testing time is disabled within the requirements of the ADA, the real challenge becomes whether extended time is an appropriate accommodation, and if so how much extended time.
Disabled individuals are entitled to reasonable accommodations “that permit them to have access to and take a meaningful part in public services and public accommodations.” Powell v. Nat’l Bd. Of Med. Exam’rs, 364 F.3d 79, 85 (2d Cir. 2004). The test provider must therefore provide accommodations to disabled individuals to best ensure that the resulting score accurately reflects what the examination is intended to measure, not the disabled candidate’s disability unrelated to the what the examination measures, and that the disabled candidate has an equal opportunity to obtain the same benefit of the examination as non-disabled candidates, e.g., a score that may be compared to the scores of all other candidates taking the same examination.
The ADA does not require a testing entity to provide its examination in the candidate’s choice of test format, to provide the test taker’s preferred accommodation, or to extend accommodations that are solely for the personal benefit of the disabled candidate. Nor is the testing entity required to incur an “undue burden,” or fundamentally alter what a timed standardized examination is intended to measure – e.g. the performance of a skill or the candidate’s ability to recall and apply knowledge to a particular problem or situation under timed conditions, within the amount time allowed for the examinee to complete the examination.
What the ADA does require be provided to a disabled person is “meaningful access” to the examination, which means that the disabled candidate will have an equal opportunity to obtain the same, but not greater, benefit that the examination provides for a non-disabled person.
Although not an extended time case, the United States Supreme Court’s opinion in PGA Tour, Inc. v. Martin, 532 U.S. 662 (2001) is helpful. There the pro golfer Casey Martin was indeed disabled, he had difficulty walking between golf holes, needed assistance, and sought an accommodation from the PGA to use a golf cart between holes, which the PGA denied.
Mr. Martin did not seek an accommodation to swing his golf club. That was fundamental to the game of golf, but getting between golf holes was not. Consequently, the Court held that the ADA entitled him to the accommodation of a golf cart (not in swinging a golf club) because that accommodation was reasonable, was necessary, and did not fundamentally alter the nature of the services, a golf tournament, offered by the PGA. His golf score would still be comparable to the golf scores of all other golfers in the tournament.
As with Casey, a disabled test-taker is entitled to a reasonable and necessary accommodation so he or she will have the same opportunity as a non-disabled person to access the examination (get to get to the tee box so he could compete with other golfers in the golf tournament provided by the Pro Tour) and obtain the benefit of the examination (obtain a golf score that could be compared to the scores of all other golfers), but is not entitled to any accommodation to actually take the timed examination (swing his golf club) once the candidate has access to the examination.
The challenge is how can a testing agent determine whether an extended time accommodation is appropriate, and if so how does the testing entity properly calibrate the amount of extended time to provide the disabled candidate an even playing field, without disadvantaging or advantaging the candidate over those taking the same examination.
Whether or how much extended time?
If a candidate has demonstrated that he or she is disabled under the ADA, and has requested additional testing time (say double or time and half the standard time), the testing entity should not merely grant the candidate the amount of extended time requested unless it is adequately justified and properly documented by the candidate or his advocate.
Rather, the task of a test provider is to determine the amount, if any, extended time is needed to provide the candidate a meaningful opportunity to obtain the same benefit of the examination as a non-disabled candidate, e.g., an examination score in a timed examination that can be compared to scores of the timed examination taken by non-disabled candidates.
In performing this task, the testing entity may not fundamentally alter what the examination is intended to measure, and must provide the candidate with only the appropriate additional time so that the scores produced by both the disabled candidate and all other non-disabled candidates taking the same timed examination can indeed be compared.
The starting point is to understand and articulate what the examination purports to measure, so as not to fundamentally alter the nature of the examination.
For example, an examination that is intended to measure a candidate’s skill or performance in an established amount of time relevant to the purpose of the examination – e.g., examination and evaluation of a presenting patient – once the candidate meets the patient any extended time to examine and evaluate that patient would be inappropriate, any extended time would fundamentally alter what the examination is assessing (the ability to examine and evaluate the patient within in the established time), and instead would be measuring something different.
On the other hand, a timed standardized cognitive examination, such as the LSAT needed for admission to law school, or a timed standardized medical licensure examination series that may be used for allocation of limited residency positions at hospitals, or other professional examinations, will likely require an analysis of both what the examination is intended to measure or assess, and the benefit of the examination that, generally, the disabled candidate must have the opportunity to obtain the same as non-disabled candidates.
In most instances, the purpose of a timed cognitive examination is to assess the candidate’s ability to recall and apply pertinent knowledge to the problem or situation described in the test item, in a timely or fluid manner. Thus, the need for a timed examination. The limiting time aspect of the examination therefore is likely fundamental to the examination because “knowledge fluency” – the ability to recall and apply information without hesitation – is part and parcel of what the examination is intended to measure or assess. Thus, to the extent the candidate’s ability to recall and apply pertinent knowledge within the standard testing time is fundamental to what the examination is intended to measure, it would be impermissible to grant to the disabled candidate any additional time to take the examination.
But there is more.
Even if “knowledge fluency” is not fundamental to what a standardized timed examination is intended to measure, there remains a constraint that precludes a grant of extended time for a disabled candidate to actually take a timed standardized examination, if the examination score will be used as a comparator among examinees competing for limited positions, like admission to a law school or to limited residency positions for medical students.
Remember, the ADA requires only that a person who is disabled as defined by the ADA be entitled to “meaningful assess” to the examination, meaning he or she is to be provided only an equal opportunity to obtain the benefit of the examination as a non-disabled person.
Thus the need to understand and articulate the benefit that all candidates can obtain from a timed standardized examination, particularly a timed standardized examination that is used by residencies or professional schools with limited open spots. Knowing the benefit provided by the examination for all candidates, non-disabled and disabled alike, the test provider should be able to reasonably calibrate any extended time needed to provide the disabled candidate that benefit.
“Access Skills” vs. “Cognitive Skills”?
Certainly the benefit all candidates receive from a timed examination – non-disabled and disabled candidates – is a valid, comparable test score, taken under the same timed conditions provided to all candidates. Were it otherwise, if the time factor was removed from the examination for a disabled candidate, his or her examination score would not be comparable; the score of a non-disabled person would be timed, and that of the disabled person would be untimed – two different examinations with no comparative value or benefit to the disabled candidate’s score. Thus, if a disabled candidate’s score is obtained on an untimed examination, he or she will not have had an equal opportunity to obtain the same benefit that non-disabled candidates, a test score that may be compared to all other examinees taking the same examination.
Nonetheless, that does not mean that a disabled candidate would not be entitled to some extended time to obtain “meaningful access” to a standardized timed examination.
Thus the need exists for the testing entity to determine whether the disabled candidate needs additional time to access the examination, not to actually take the examination. That in turn requires an evaluation of the candidate’s access skills, like vision or reading (being able to see or read the test item compared to the pace of most people in the general population).
But cognitive skills, e.g., the ability to think, concentrate, reason and the like in a timed environment, which are part and parcel of what is being measured by a standardized timed examination, are not access skills. Cognitive skills tested under timed conditions, where the candidate has limited time in which to complete the examination, cannot be accommodated without (a) fundamentally altering what the examination is intended to measure or assess or (b) removing from the test the timed aspect of the examination applicable to all candidates.
Extended time accommodations for access skills are appropriate – and do not detract from the examination being a timed examination – whereas any extended time accommodation to a disabled candidate for any impairment of his or her cognitive skills would negate the timed aspect of the examination, rendering his or her score not comparable to the scores of non-disabled candidates who took the examination under timed conditions.
So, when the disabled candidate requests an accommodation under the ADA of extended time, such as double time or time and half, the testing entity must determine the extent to which the candidate needs additional time, if any, to access the examination, but not to take the examination. Extended time to access the examination may be merely a few extra minutes or more, but not necessarily an unsupported or undocumented double time or time and a half simply because the candidate or his or her advocate requests that amount of extended of time.
The appropriate amount of additional time, if any, will of course depend on the nature of the candidate’s disability. If he or she has a visual problem that results in slow reading of the test items, the appropriate amount of additional time would perhaps be the additional amount of time, if any, it takes for the average non-disabled person to read all those test items compared to the amount of time it would take the visually impaired candidate to read the same items. The same analysis would be true for a disabled candidate who is a slow reader, such as dyslexia.
If the test items are long and intricate, it is likely the additional access time to those test items will be longer than for an examination that has only simple one or two sentence test items that are easy to read. Thus the amount of additional time that may be granted to a disable candidate, to provide the candidate with “meaningful access” to obtain the benefit of the timed examination, resulting in a score that can be compared to all other test takers, will likely require an understanding of the content of the examination questions and how the candidate’s impairment may or may hinder his or her access to that examination content.
It would be a mistake for a testing entity to simply provide double time or time and a half the standard time because the candidate asked for it. That may over-accommodate the disabled candidate, giving that candidate an advantage over non-disabled candidates. His or her test score on such an examination would not be comparable to those of non-disabled candidates taking the same examination, and the candidate would not have received the benefit of the examination, a valid score of a timed examination that can be used to compared to all other candidate.
With computer based testing now as the norm, a testing administrator should be able to calibrate the testing time of the examination to accommodate any amount of extended time, so that the disabled candidate would be accommodated to provide just the right amount of time needed to obtain meaningful access to the examination, and thus be provided an “even playing field” that neither advantages or disadvantages the disabled or non-disabled candidates.
The focus of testing entities, who provide timed standardized examinations and are faced with a request for extended testing time for a person with disabilities, should be on the appropriateness of an accommodation that will provide to the disabled person “meaningful access” to the examination to have the opportunity to obtain the same benefit of the examination, viz., a valid score of a timed examination that is comparable to all others taking that examination.
That may include extended time to access the examination (like the use of a golf cart provided to Casey Martin to reach the tees), but does not include extended time for a disabled candidate to take the examination (or in the golf analogy to help swing the club).
Extended time would not fundamentally alter what a standardized timed cognitive examination is intended to measure, so long as the extended time is limited to access. Only when additional time is provided solely for a disabled candidate to access a timed examination will the score produced be comparable to the scores of all candidates, and thus the benefit of the examination – a timed examination score – be obtainable by the disabled candidate. That is all the ADA requires, and “even playing field,” nothing more and nothing less.