Testing Accommodations and the Americans With Disabilities Act: Mandates and Limits

Many certification organizations are, rightly, paying increased attention to inclusion and accessibility. Regardless of their policy priorities, however, certification organizations are public accommodations that have legal obligations under Title III of the Americans with Disabilities Act (ADA) to provide individuals with disabilities “full and equal enjoyment” of their services. (This includes, as discussed in “ADA Accessibility: Understanding Website Compliance,” maintaining websites that meet digital accessibility standards.)

The ADA also has specific regulations applicable to any private entities that offer examinations or courses relating to certification, licensing or credentialing. As a threshold matter, such entities must offer their examinations or courses “in a place and manner accessible to persons with disabilities” or must “offer alternative accessible arrangements.”  The ADA regulations (at 28 CFR § 36.309) impose heightened duties on certification organizations when they administer exams to individuals with disabilities who have a sensory, manual or speaking skills impairment. This article will discuss the nature of the ADA’s mandates for testing accommodations, as well as situations in which certification organizations can or may need to deny a requested accommodation.

Testing Accommodations Should Support Valid and Accurate Test Results for Candidates With Impairments

In addition to ensuring that the examination is offered in accessible and convenient facilities, certification programs must generally administer their exams “so as to best ensure that … the examination results accurately reflect the individual’s aptitude or achievement level or whatever other factor the examination purports to measure, rather than reflecting the individual's impair[ment].” As necessary to meet this obligation, the testing entity must “provide appropriate auxiliary aids.”

As one court (in Doe v. National Bd. of Medical Examiners) has explained, these requirements do not compel testing organizations to “provide examinations to the disabled that yield technically equal results;” rather, the ADA “mandates changes to examinations — ‘alternative accessible arrangements’ — so that disabled people who are disadvantaged by certain features of standardized examinations may take the examinations without those features that disadvantage them.”

This sets a high bar, and the costs must be borne by the certification organization. The ADA prohibits imposing a surcharge on individuals with disabilities to cover the costs of accommodations or of instituting accessibility measures. In Bonnette v. D.C. Court of Appeals, for example, a federal court required the organization administering the Bar Exam to provide a vision-impaired candidate use of a computer equipped with an accessible screen-reading program, even though that was more costly than providing a human reader or audio CD, and even though the requested accommodation cost more than the candidate’s Bar Exam fee. The court explained that the specially equipped computer would better enable the candidate “to perform at her achievement level, not just one that might be good enough for her to pass.”

Test Validity Considerations May Sometimes Require Denying a Requested Accommodation

The ADA regulations place two important limits on the requirement to provide testing accommodations, however. First, if the candidate’s impairment affects skills that “are the factors that the examination purports to measure,” the certification organization does not have to provide accommodations to eliminate the impairment’s effect on the exam results. For example, as a court held in Rawdin v. American Board of Pediatrics, a candidate with a memory retrieval impairment was not entitled to take a multiple choice certification examination as an “open book” test, because that accommodation “would not allow [the certification board] to adequately, reliably and validly test [the plaintiff’s] knowledge.”

Similarly, the regulations provide that a certification organization does not have to provide a requested auxiliary aid if doing so “would fundamentally alter the measurement of the skills or knowledge the examination is intended to test or would result in an undue burden.”

This limitation is crucial for certification organizations, especially for those with certification programs that are accredited by the National Commission for Certifying Agencies (NCCA). NCCA’s Standard 17 (2021 version) requires accredited certification programs to “use psychometrically defensible methods to help ensure that candidates are held to the same performance standard.” Standard 18 requires accredited programs to “ensure that all candidates take the examination under comparable conditions.” And Commentary 7 to Standard 7 explains that “any accommodation provided should be reasonable and not compromise the fundamental nature of the assessment or the validity of the certification decision.”

Certification organizations therefore must adopt procedures to ensure that candidates with disabilities can request and receive accommodations and auxiliary aids that they need as a result of their impairment. It is equally important that the process ensures that the offered accommodations are appropriate both to the nature of the test and to the nature of the impairment, thus preserving the validity of the certification decision. (In accordance with Standard 6, the program must make publicly available the “procedures for candidates requesting a testing accommodation.” And Standard 7 requires that the “process for reviewing requests for accommodations must follow all applicable jurisdictional laws and regulations.”)

A critical aspect of any testing accommodations procedure for certification programs is requiring documentation from a candidate with a disability that supports the request for accommodation. Per the ADA regulations, the request for documentation must be “reasonable and limited to the need for the modification, accommodation or auxiliary aid or service requested.” And the certification program must assess and respond to the request “in a timely manner.”

Not all diagnoses will automatically result in entitlement to an accommodation. A candidate who cannot provide adequate documentation of an impairment or a need for accommodation should be denied the accommodation. In some cases, courts have upheld denials of requested accommodations to high-achieving candidates with diagnosed impairments because the candidate cannot demonstrate that the impairment “substantially limits” a major life activity and thus is not deemed disabled under the ADA. For example, in Black v. Nat’l Bd. of Med. Examiners, the court held that a candidate with an attention-deficit/hyperactivity disorder (ADHD) diagnosis was not entitled to extra time on the U.S. Medical Licensing Examination (USMLE) based on evidence that she performed average or above-average on the Medical College Admission Test (MCAT) and other standardized examinations without testing accommodations and had not shown a “substantial” limitation “in comparison to the average person.”

Other cases have reached contrary conclusions, however. Thus, in Berger v. Nat’l Bd. of Med. Examiners, the court ordered the testing organization to provide extra time on the USMLE to a candidate who, like the plaintiff in Black, had an ADHD diagnosis and a prior history of high exam scores. The plaintiff in Berger, however, provided evidence of reading deficits due to his impairments that substantially limited his daily life activities and evidence that his past test score achievements resulted from compensatory strategies.

Include Individualized Assessment of Accommodation Requests

As another court (in Bartlett v. New York State Bd. of Law Examiners) has observed, a definition of disability “based on outcomes alone, particularly in the context of learning disabilities, would prevent a court from finding a disability in the case of any individual . . . who is extremely bright and hardworking, and who uses alternative routes to achieve academic success,” which would be inconsistent with the goals of the ADA. Rather, courts have held that each candidate’s request for testing accommodations “requires an individualized assessment.”

In conducting that individualized assessment, certification organizations must give “considerable weight” to documentation of past accommodations received in similar testing situations. That history is not determinative, however, and certification organizations can request verification of the candidate’s current need for accommodation from an appropriate medical professional. As noted by the U.S. Department of Justice in its guidance on testing accommodations, “[a]ppropriate documentation will vary depending on the nature of the disability and the specific testing accommodation requested.”  The nature of the impairment may also affect the organization’s expectations for how recent the documentation must be to support a current need for accommodation.

Certification programs must uphold the ADA’s purpose of making certifications and professional advancement accessible and fair for individuals with disabilities. At the same time, they must protect the validity of their certification, so the public can trust in the integrity of the credential. By adopting compliant and careful testing accommodation procedures and implementing them properly, certification programs can meet these dual obligations.