Initial Regulatory Assessment
Notice of Proposed Rulemaking Amendment of Americans with Disabilities Act Title II and Title III Regulations to Implement ADA Amendments Act of 2008
United
States Department of Justice
|
TABLE
OF CONTENTS
B. Assumptions and Data Used for Analysis
TABLES
Table 1: Total Costs Summary ($ millions)
Table 2: Cost Estimation Details
Table 4: Exam Proctor Cost Data
Table 5: Testing Accommodations Requested and Granted, by Request Type
Table 6: Testing Accommodations Requested and Granted, by Primary Disability Type
Table 8: National Examination Test Takers Statistics
I. INTRODUCTION
Congress enacted the Americans with Disabilities Act (ADA) Amendments Act of 2008 to revise the ADA definition of disability and to ensure that the definition is broadly construed and can be applied without extensive analysis. The ADA Amendments Act took effect on January 1, 2009. Section 506 of the ADA Amendments Act authorizes the Attorney General to issue regulations implementing the definitions of disability in sections 3 and 4 of the Act, including the rules of construction in section 3. The law has been in effect for four years, and covered entities have been required to comply with the new requirements since it took effect. Regulations issued under this authority explain the statutory changes and provide additional guidance to regulated entities. The regulations themselves do not include any additional requirements; they merely implement the ADA Amendments Act as written.
The ADA Amendments Act's revisions to the ADA apply to titles I (employment), II (state and local governments), and III (public accommodations). On March 25, 2011, the Equal Employment Opportunity Commission (EEOC) published its final rule implementing the ADA Amendments Act for title I. To promote consistency in the application of titles I, II, and III of the ADA, and to prevent confusion among entities subject to both title I and either title II or III, the Department is proposing, wherever possible, to adopt regulatory language for titles II and III that is identical to the revisions to the EEOC's title I regulations implementing the ADA Amendments Act. This approach promotes the “coordination across agencies” that Executive Order 13563 encourages in order to simplify and harmonize requirements. Because many title II and title III entities are also subject to title I, this harmonization is essential.
The impact of the regulatory revisions mandated by the ADA Amendments Act will be largely felt in the employment (title I) context, as discussed in the EEOC's regulatory impact analysis. With respect to titles II and III, the impact in terms of cost is nowhere near as great (i.e., is not economically significant).
First, although the ADA Amendments Act was expected to have an impact on a broad range of individuals with disabilities who were seeking reasonable accommodations in employment under title I, among individuals with disabilities challenging discrimination under titles II and III of the ADA, the only group Congress identified in the legislative history were persons with learning disabilities requiring testing accommodations from higher educational institutions and testing entities.[1] Congress was concerned about the number of individuals with learning disabilities who were denied testing accommodations (usually extra time) because covered entities claimed these individuals did not have disabilities covered by the ADA.
Second, a review of the case law and the Department's enforcement experience in the years since the Supreme Court's decision in Sutton shows that defendants rarely challenged whether plaintiffs had legally protected disabilities in title II and title III cases, except in cases involving learning disabilities in education and testing accommodations.[2] Aside from higher education and testing entities[3], the Department's research has not identified any other title II or title III entities that are purporting to be impacted in a significant way by changes made by the ADA Amendments Act. The Department requests public comments on whether the changes made by the ADA Amendments Act to titles II and III and that are addressed in the proposed rule would have benefits or costs in other areas besides additional time for post-secondary students with ADD and learning disabilities to take tests, and additional time for individuals with ADD and learning disabilities to take national exams. The Department also requests information to help it estimate the benefits and costs in these areas.
Third, even in the context of education and testing, although the ADA Amendments Act has been in effect for four years, the Department's research has not identified information or data in the literature or on trade association websites suggesting that these covered entities have actually incurred significant costs as a result of implementing the statutory requirements of the ADA Amendments Act.
The following analysis calculates the estimated costs associated with the incremental increase in testing accommodations under the revised definition of disability and discusses the associated benefits.
II. REGULATORY ASSESSMENT
Executive Order 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with obtaining the regulatory objectives; and, in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. Executive Order 13563 recognizes that some benefits and costs are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
Executive Order 12866 requires federal agencies to submit “significant regulatory action[s]” to the Office of Management and Budget (OMB) for interagency review. For the category of significant regulatory actions that are “economically significant,” EO 12866 further requires agencies to submit to OMB an assessment of the planned regulation's benefits and costs, as well as the benefits and costs of potentially effective and reasonably feasible alternatives. “Economically significant” regulations are defined by EO 12866 as those actions that have:
an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
Exec. Order No. 12866, 58 Fed. Reg. 51,735 (Oct. 4, 1993).
The proposed changes to the titles II and III regulations merely implement the statutory changes that have been in effect since 2009. Because this proposed rule would not have any benefits or costs beyond those already provided by the ADA Amendments Act, in accordance with OMB Circular A-4, the Department uses a pre-ADA Amendments Act baseline to estimate the incremental benefits and costs of this proposed rule.[4] The data used to support these estimates focus on (1) the increase in the number of students requesting and receiving testing accommodations under the new revisions, and (2) the actual cost of the testing accommodations, which involves additional proctor time and any additional training, if needed, for those offices within post-secondary institutions and national testing companies that manage requests from students with disabilities.
Using a pre-ADA Amendments Act baseline, the Department estimates that revising the definition of disability under title II and title III of the ADA is expected to cost $382 million over 10 years discounted at 7 percent.[5] The benefits of the revisions to the definition of disability under titles II and III of the ADA made by the ADA Amendments Act include greater equity and fairness for students with certain disabilities as well as an increased likelihood that some will achieve their degree or license sooner than they otherwise would have, and even the possibility that some number would now be able to get a degree or license that they otherwise would not have.
A. Cost Assessment
As the Final Rule and accompanying RIA prepared by the EEOC noted, robust data are not readily available on the actual numbers of persons who would be covered by the ADA due to the ADA Amendments Act, and the actual additional costs of accommodations. Nevertheless, some general cost estimates can be made using existing data. The Department estimates that the total cost of the changes made by the ADA Amendments Act to titles II and III, and which are addressed in this proposed rule, will range between $36.2 and $61.8 million in the first year (which is the year with the highest costs, because the potential costs of revising training procedures for staff who assess requests from students with disabilities are likely only incurred during the first year) for students with learning disabilities and students with Attention Deficit Disorder or Attention Deficit Hyperactivity Disorder (collectively, “ADD”), who would request and receive testing accommodations and would not have received accommodations but for implementation of the ADA Amendments Act and the proposed regulations.
This cost estimation includes several assumptions, including the following:
a) Seventy percent of persons who self identify as having ADD as their primary disability meet the legal definition of having a disability for which testing accommodation must be made.[6]
b) Fifty-one percent of persons with learning disabilities and ADD (as a primary disability) are currently receiving testing accommodations in post-secondary schools or on national exams.[7] To account for uncertainty regarding the remaining students who were not receiving accommodations but are eligible to receive them now because of the ADA Amendments Act and the proposed regulations, we estimate the incremental effect of the revisions using a low (fifty percent), medium (seventy percent), and high (ninety percent) range.
c) In the vast majority of cases, the accommodation requested by students with learning disabilities and ADD involves extra test-taking time.[8]
d) All students enrolled in a physical location for studies take all their courses in physical classrooms. This assumption likely overstates the rate of tests taken in a timed setting at school; the Department of Education reported that in 2008, 20.4 percent of students participated in “distance education courses,” or online learning.[9] While some of these courses would require in-person, timed examinations, it is likely that some portion would not.
The Department requests public comments on the above assumptions. Particularly, the Department seeks information on whether better sources of data are available or whether it should use a different methodology to estimate the benefits and costs of the changes to titles II and III of the ADA made by the ADA Amendments Act.
Our estimate of the cost of providing additional testing accommodations as a result of the ADA Amendments Act and the proposed regulations is developed from current data on the number of post-secondary students (undergraduate and graduate), the portion of students with learning disabilities, the portion of students with ADD, the number of students participating in online learning, the average hourly wage of teaching assistants and test proctors [10], and reasonable estimates of average test time, average course load, and average number of tests per course. The Government Accountability Office (GAO) recently conducted extensive research on disability and education, and the analysis herein relies on much of the data collected in that report (U.S. Government Accountability Office, Higher Education and Disability: Education Needs Coordinated Approach to Improve Assistance to Schools in Supporting Students (GAO 10-33) (October 2009), available at http://www.gao.gov/new.items/d1033.pdf (last visited Dec. 10, 2013)). The estimated costs are summarized in the tables below.
1. Post-Secondary Institutions
The National Center for Education Statistics (NCES) reports there are an estimated 17.8 million post-secondary students (2010[11]), which includes undergraduate and graduate students. This figure represents full-time student equivalents, not enrolled students (the latter category includes part-time students, and is therefore a larger number). The NCES also reports that approximately 3.7% of those 17.8 million students are enrolled in online learning and that approximately 20.4% of students were taking online learning course(s).[12] The 3.7% is an estimate of the percent of all post-secondary students who are taking all their courses online. We removed these students from our cost estimate because if their entire program is online, they are unlikely to have timed tests at a physical location. We did not remove from our cost estimate the students who are taking only some online courses, which can be calculated as the difference between the estimated 20.4% of students taking at least one course on line, less the 3.7% who take all their courses online. Instead, we treat these students the same for purposes of our analysis as we treat students taking all courses in physical classrooms, which likely overestimate the number of courses with timed tests at a physical location that we use in our estimate. The Department requests public comment on whether our assumption is correct that those in a post-secondary program where all classes are taken online do not take their tests in a physical location. We also request any information the public might have regarding whether online-only post-secondary programs will incur any costs that we have not accounted for as a result of incorporating the ADA Amendments Act's revised definition of disability.
In 2008, approximately 10.8% of post-secondary students reported having a disability. Out of those 10.8% of students with a disability, 8.9% of those students reported having a “specific learning disability” and 19.1% reported having ADD.[13] Thus, out of the 10.8% of students with a disability, 28% of those students have a specific learning disability or ADD.[14] Some research suggests that this percentage may overestimate the proportion of students who self-identify as ADD and actually require accommodations due to a disability.[15] As a result, the estimate of the percentage of students with ADD (as a primary disability) was reduced by 30%.[16] Therefore, the Department estimates that out of the 10.8% of students with a disability, 22.3% of those students have a specific learning disability or ADD.
Meanwhile, research suggests that prior to the enactment of the ADA Amendments Act, 51% of college students with a learning disability or ADD were already receiving accommodations.[17] To calculate the incremental costs of this proposed rule, the remaining students with a learning disability or ADD (49%) who were not receiving accommodations was used as a baseline to estimate the portion of students with disabilities who would now (and not previously) both seek and receive testing accommodations after the enactment of the ADA Amendments Act and the proposed regulations. Using a high, medium, and low cost scenario, an assumption was made that 50 to 90 percent of those who were not previously receiving accommodations would now request and receive testing accommodations for additional time. A more detailed explanation of this approach is set forth below.
The Department used a range to estimate the incremental change in the percentage of students with learning disabilities and ADD who would now request and receive accommodations involving extra test-taking time after the enactment of the ADA Amendments Act and the proposed regulations. These calculations proceeded with a low, medium, and high possible value for this unknown portion of students: 50.0%, 70.0% and 90.0%, respectively. The Department used a range because not all postsecondary students with learning disabilities or ADD who are eligible to receive testing accommodations actually request them. Some students may not want to identify themselves as having a disability and/or needing an accommodation. Other students may not have documentation of their disability at the time they request the accommodation, and they cannot afford to obtain the specific documentation requested by the testing entity. In addition, other students may have a disability, but not need that particular accommodation. Finally, despite the changes made by the ADA Amendments Act, not all students in the affected population are necessarily eligible to receive testing accommodations. The Department is interested in comment on whether the ranges it is using are appropriate or whether it has overestimated the number of students who will now request testing accommodations.
We thus estimate that between 101,227 and 182,209 more post-secondary students as a result of the revisions to the definition of disability will request and receive testing accommodations. That figure was calculated by multiplying 17.8 million post-secondary students (NCES) by the percentage of students with disabilities, 10.8% (GAO 10-33), multiplied by the percentage of students with disabilities who have a learning disability and 70% of students with ADD, 22.3 % (GAO 10-33), reduced by the 51% already receiving accommodations and the 3.7% of students taking courses fully online (NECS), and adjusting for the fact that either 50%, 70% or 90% of those impacted students would actually request testing accommodations.
One GAO report noted that 59% of testing accommodation requests were for 50% additional time and another 15% were for more than 50% additional time (GAO 12-40: Higher Education and Disability - Improved Federal Enforcement Needed to Better Protect Students' Rights to Testing Accommodations, November 2011). We thus conservatively assumed an average of 75% more time would accurately estimate the additional testing accommodation time requested for examinations in post-secondary institutions.[18] A brief review of the academic schedules for post-secondary schools found that most undergraduate courses meet twice a week for an hour and fifteen minutes or an hour and a half. Based on this information, we assumed that the average test time would be the length of the average class session – 1.5 hours. Thus, we estimate 1.13 additional hours per test for each accommodation request – 1.5 hours (average test time) multiplied by 75% (average additional testing time requested).
Little to no data were found on the average number of exams/tests taken per post-secondary student. In this estimation, we assumed that the average full-time equivalent student takes a full-time load of eight classes per year, with an average of 3 tests/quizzes per class (which includes some classes with no exams and some classes with several). Thus, we estimated that students will take approximately 24.0 exams/tests per year, on average, calculated as follows: 8 classes per year multiplied by 3 tests per class (average). To be conservative, we have not adjusted for students who take a combination of online courses and physical classroom courses. Multiplying 24.0 exams/tests per student per year by the average (estimated above) of 1.13 additional hours per testing accommodation request, yields an estimate of 27.0 additional hours of test taking and proctor time needed per student per year, on average. The Department seeks public comment on the reasonableness of these assumptions.
Multiplying the estimated number of students who as a result of the revisions to the definition of disability would now request and be granted testing accommodations by the average additional time for testing accommodations per student per year, 27.0 hours, by the average hourly wage of teaching assistants, $11.16 (BLS, Occupational Outlook Handbook, 2012-13 Edition),[19] yields an annual cost of testing accommodations in the post-secondary education setting ranging between a low of $30.5 million and a high of $54.9 million. We invite the public to comment on whether our reliance on the hourly wage of teaching assistants is appropriate in estimating the additional cost to entities to proctor the incremental increase in the number of students who will be receiving additional test taking time under the revised definition of disability.
As noted previously, our methodology likely overestimates the actual costs for a variety of reasons. For example, because there will sometimes be more than one student needing additional testing time during the administration of a given test, only one proctor would likely be needed. Because of the inherent difficulties in accurately estimating when this will occur, we have calculated the costs to account for additional proctor time for each individual student, regardless of whether more than one student needing additional time would be taking the same test.
The Department believes institutions will experience some one-time costs due to the institution's disability services center (or its equivalent) needing to update its policies and procedures to bring them in line with the changes made by the ADA Amendments Act (and the proposed regulations) and explaining those changes to the employees responsible for evaluating testing accommodation requests. We estimate that one-time costs to adapt training and procedures will total $3,510,500, which is the result of multiplying the number of institutions affected, 7,021 (NCES[20]), by $500 (assumed not to be higher than the costs of 5 hours of management time, valued at $100 an hour). We were not able to find estimates for the incremental costs resulting from training employees within post-secondary institutions who are responsible for assessing accommodation requests. We therefore used an estimate of 5 hours at $100 per hour to calculate a very high-level estimate of this cost, and are seeking public comment on these assumptions.
2. National Testing Entities
Using the same data as noted above, the calculation of the estimate of additional requests for testing accommodations in national examinations was made as follows: 9,287,619 total annual test takers of national exams (derived from GAO-12-40 and other sources, see Table 7), multiplied by the percentage of post-secondary students with disabilities, 10.8% (GAO 10-33), multiplied by the percentage of students with disabilities who have learning disabilities and 70% of students with ADD, 22.3% (GAO 10-33), reduced by the 51% likely already receiving accommodations yields approximately 109,457 students previously not receiving testing accommodations who now could. As calculated above, a low, medium, and high range was used (50%, 70%, 90%) to represent the likely percentage of these additional students who, as a result of the ADA Amendments Act and proposed regulations, would actually ask for and now receive a testing accommodation. This calculation leads to an estimate of between 54,729 to 98,512 additional requests that as a result of the revisions to the definition of disability would be granted for testing accommodations during national examinations. The Department has not found data detailing the distribution of persons with disabilities who take national exams, and therefore has used the data on post-secondary students with disabilities as a proxy on the assumption that the populations are similar (both are adults seeking additional education and degrees/certification). The Department is interested in any comments on the appropriateness of using this data and any alternative sources of information that can be used.
The GAO report noted that 59% of testing accommodation requests are for 50% additional time and another 15% are for more than 50% additional time (GAO 12-40). We thus assumed an average of 75% more time would accurately estimate the additional testing accommodation time requested for national examinations.[21] Data from the GAO report and licensing administrators find that these national examinations last anywhere from two to eight hours. Averaging these test lengths, weighted by the number of takers for each test, results in a weighted average test length of 3.54 hours.[22] The estimate of additional testing accommodation requests was multiplied by the average test length of 3.54 hours, and multiplied by 75% (average additional testing time needed), and in turn multiplied by $10.38, which represents the average hourly wage for test proctors (based upon internet searches, see Table 4), resulting in a range of annual costs between a low of $1.5 million and a high of $2.7 million.
Because our estimation of national exams and licensing tests is based on those which we could actively identify, it underestimates the likely number of actual test takers. We conducted sensitivity tests estimating what the incremental number of impacted test takers would be if the total number of persons sitting for all national examinations is actually 50% or 100% higher than the number we identified. The resulting ranges in annual costs increased to between $2.3 and $4.1 million (50% higher number of persons sitting for national exams) and between $3.0 and $5.4 million (double the number of persons sitting for national exams). We ask the public to provide any information that would help us refine our estimates on the number of national examination test takers.
Although our analysis likely underestimates the number of test takers for national exams and licensing tests, we likely overestimate the actual costs per test taker for the specific national examinations included in the analysis. As stated above, only one proctor would likely be needed at one location, even though in some instances more than one student may be receiving additional time. With respect to national examinations, we know many persons with learning disabilities or ADD were already requesting and receiving extra test-taking time as a testing accommodation. Thus, the companies that administer national examinations already employ and pay for additional testing proctors to proctor the examinations of those receiving additional time. The increase in the number of test-takers who would now request and be granted additional test-taking time will likely be placed in the same room or location where the proctors were already monitoring students receiving additional time prior to the ADA Amendments Act. Yet, we have calculated the costs to account for additional proctor time for each individual test taker, regardless of whether an additional proctor is needed because one is already provided to students previously requesting and receiving additional time.
One-time costs to adapt training and procedures were estimated to total $698,500, which is the result of multiplying the number of institutions affected, 1,397 (Census Bureau data for educational test development and evaluation services was used as a proxy), by $500 (assumed not to be higher than the costs of 5 hours management time, valued at $100 an hour).[23] Again, because the Department was unable to find any data on the costs associated with training, we invite public comment on the accuracy of our assumptions.
Table 1: Total Estimated Costs in First Year Summary ($ millions)
LOW |
MED |
HIGH |
|
|---|---|---|---|
ANNUAL Total Cost for Coursework Tests and Examinations in Post-Secondary Institutions |
$30.5 |
$42.7 |
$54.9 |
ONE TIME Cost for Additional Training at Post-Secondary Institutions |
$3.5 |
$3.5 |
$3.5 |
ANNUAL Total Cost for National Examinations |
$1.5 |
$2.1 |
$2.7 |
ONE TIME Cost for Additional Training at National Examination Testing Institutions |
$0.7 |
$0.7 |
$0.7 |
TOTAL |
$36.2 |
$49.0 |
$61.8 |
*It should be noted that an assumption of 100% of all students who could now request a testing accommodation of additional test-taking time was evaluated and increases the total annual costs by 11.1%. However, it was deemed unrealistic that every individual with a learning disability or ADD who was not receiving a testing accommodation previously would now request and receive one.
Table 2: Cost Estimation Details
| Average Additional Time Requested (1.5 hrs x 75% extra) | 1.125 |
|---|
|
Number of Exams/Tests Avg # classes Avg # tests Avg Exams/Tests Per Student Per Year |
||||
|---|---|---|---|---|
|
3 24 |
||||
| Annual Additional Time Per Student | 27 | |||
| Avg Hourly Wage for Teaching Assistants | $11.16 | |||
| Annual Additional Cost Per Student | $301.41 | |||
| Total Cost for Coursework, Tests, and Examinations** | $30,511,265 | $42,715,771 | $54,920,278 | |
|---|---|---|---|---|
Additional Training in Institutions (disability services centers, etc.)
| Number of Institutions | 7,021 | |||
|---|---|---|---|---|
| Incremental Cost per Institution (estimate) | $500 | |||
| ONE TIME Cost for Additional Training at Institutions | $3,510,500 | |||
|---|---|---|---|---|
* Full-time Equivalent in Public, Private not-for-profit, and Private for-profit degree granting institutions. Source: U.S. Department of Education, National Center for Education Statistics, Integrated Postsecondary
** Details may not total to sums due to rounding.
***http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8530; http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8460 (last visited Dec. 5, 2013).
National Examinations: estimate of additional students w/ learning disabilities and attention deficit disorder likely to request testing accommodations
Annual Number of Test-takers MBE, MPRE, CPA, NAPLEX, PRAXIS (Speech Language Pathology), NCLEX RN, NCLEX PN, USMLE Step 1, US Medical Licensing Examination (USMLE) Step 2 – CK, USMLE Step 2 –CS, FE (Fundamentals of Engineering Exam), PE, ARE (Architect Registration Exam) SAT, ACT, PSAT, LSAT, GRE, GMAT, GED, MCAT, CFA (levels 1, 2 and 3), CFP |
9,287,619 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Increase in Requests for Accommodations Percent of post-secondary students with disabilities (2008) Percent of students w/disabilities that have either (a) learning disabilities, or( b) Attention Deficit Disorder (ADD) (2008) Percent of students with learning disabilities & ADD already requesting accommodations Total of Potential Students Who Could Request and Receive Testing Accommodations |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
10.8% 22.3% 51% 109,457 |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Range for Potential Students Who Do Request and Receive Testing Accommodations | 50% | 70% | 90% | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Additional Students w/ Learning Disabilities and ADD Likely to Request and Receive Testing Accommodations | 54,729 | 76,620 | 98,512 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Average Additional Time Requested (3.54 hrs x 75% additional time) | 2.65 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Average Hourly Wage for Test Proctors | $10.38 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Annual Additional Cost Per Test-taker | $27.57 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Total Cost for National Examinations*** | $1,508,690 | $2,112,166 | $2,715,642 | |||||
|---|---|---|---|---|---|---|---|---|
Additional Training in Institutions (disability services centers, etc.)
| Number of Institutions **** | 1,397 | |||||||
|---|---|---|---|---|---|---|---|---|
| Incremental Cost per Institution (estimate) | $500 | |||||||
|---|---|---|---|---|---|---|---|---|
| ONE TIME Cost for Additional Training at Institutions | $698,500 | |||||||
|---|---|---|---|---|---|---|---|---|
|
*** Details may not sum exactly to totals due to rounding
**** NAICS code 6117102—Educational test development and evaluation services. Source: U.S. Census Bureau, available at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_00A1&prodType=table. |
B. Assumptions and Data Used for Analysis
Several data and assumptions were used in the estimations above and are set out in the following tables.
1. General Data
Data presented by the GAO was used in the estimation of the number and percentage of post-secondary students with disabilities, by type. The data table from GAO 10-33, Higher Education and Disability, is reproduced in its entirety below (Table 3) and relies on data from the U.S. Department of Education, National Center for Education Statistics, 1999-2000, 2003-04, and 2007-2008 National Post Secondary Student Aid Study.
Table 3: Percentage Distribution of Main Type of Disability among Postsecondary (Undergraduate) Students with Disabilities, 2000, 2004 and 2008
| Main type of disability | |||
|---|---|---|---|
| 2000 | 2004 | 2008 | |
| Mental, emotional, or psychiatric condition/ depression | 17.1 | 22.3 | 24.3 |
| Attention deficit disorder (ADD) | 6.7 | 11.6 | 19.1 |
| Orthopedic or mobility impairment | 29.0 | 24.8 | 15.1 |
| Other | 13.2 | 5.8 | 15.0 |
| Specific learning disability, such as dyslexia | 5.0 | 7.7 | 8.9 |
| Hearing impairment | 6.8 | 4.7 | 6.1 |
| Health impairment or problem | 15.1 | 17.3 | 5.8 |
| Blindness or visual impairment | 5.2 | 3.7 | 2.7 |
| Speech or language impairment | 0.3 | 0.5 | 0.7 |
| Brain injury | 1.2 | 1.0 | 1.7 |
| Developmental disability | 0.6 | 0.6 | 0.7 |
A range of estimates was found for hourly wages of exam proctors, ranging from $7.50 an hour up to $16.00 an hour. A value of $10.38 per hour was the average and close to a commonly noted figure of $10.00 per hour during a recent search of job postings.
Table 4: Exam Proctor Cost Data
2. Accommodations Requested
Based on the GAO study and the Department's own research, the Department has concluded that additional proctors for longer testing times are the likely testing accommodation that will be needed based on the changes implemented by the ADA Amendments Act and proposed regulations.
According to the GAO: “Based on their reviews, testing companies reported granting between 72 and 100 percent of accommodations that were requested in the most recent testing year for 6 of the 10 tests for which we received data. An estimated 179,000 individuals with disabilities – approximately 2 percent – of about 7.7 million test takers took an exam with an accommodation in the most recent testing year, according to data provided to us.”[24]
Table 5: Testing Accommodations Requested and Granted, by Request Type[25]
| Type of Accommodations Requested and Granted[26] | Requested Accommodation (Percent of All Requested) | Accommodation Granted (Percent of All Granted) |
|---|---|---|
| 50% extra time | 59% | 57% |
| More than 50% extra time | 15% | 17% |
| Extra/extended breaks | 5% | 4% |
| Alternate text format | 3% | 7% |
| Auditory or visual assistance | 3% | 4% |
| Adjustments in testing environment | 10% | 7% |
| Other | 4% | 3% |
Table 6: Testing Accommodations Requested and Granted, by Primary Disability Type[27]
| Disability Type | Requested |
|---|---|
| Learning Disability | 46% |
| ADD/ADHD | 26% |
| Other | 14% |
| Physical/sensory | 10% |
| Psychiatric | 4% |
| TOTAL | 100% |
3. Online Learning
This section summarizes the trend of increasing prevalence of online learning among undergraduate students. The trend indicates that more and more undergraduate students are participating in online courses, including students with disabilities. We believe that proctored and timed tests are less prevalent with online learning; therefore, the number of students requesting additional testing time as an accommodation will also decrease. The Department's estimates attempt to calibrate for the prevalence of tests without time limits. The table below shows that significant portions of undergraduate students are enrolled in either online courses or online degree programs. We invite public comment on whether our assumption is correct that proctored and timed tests are less prevalent with online learning.
Table 7: Number of Postsecondary Students who are Enrolled in Distance Education Courses and Distance Education Programs[28]
| Criteria \ Year | |
|---|---|
| All Postsecondary Students (undergraduate and graduate students, full time equivalent) | 17,838,619 |
| Percent Enrolled in an Online Degree Program | 3.7% |
| Percent Enrolled in an Online Course | 20.4% |
4. National Examinations
Based on a study by the GAO and the Department's own research, we estimated a total of approximately 9,287,619 national exam takers.[29] Our research indicates that these national examinations last anywhere from two to nine hours. A straight average of these test lengths results in an average test length of 5.4 hours. And an average weighted by number of test takers results in an average of 3.5 hours.
Table 8: National Examination Test Takers Statistics[30]
| Exam | Total | Year of Estimate | Test Length |
|---|---|---|---|
| MBE | 70,302 | 2011 | 6 hrs |
| MPRE | 66,640 | 2011 | 2 hrs |
| CPA | 85,391 | 2008 | 3.5 hrs |
| NAPLEX | 11,707 | 2011 | 4 hrs |
| PRAXIS (Speech Language Pathology) | 7,662 | 2010-2011 | 2 to 4 hrs |
| NCLEX RN | 195,307 | 2011 | 6 hrs |
| NCLEX PN | 80,949 | 2011 | 5 hrs |
| USMLE Step 1 | 24,245 | 2011 | 8 hrs |
| USMLE Step 2 – CK | 16,186 | 2011 | 9 hrs |
| USMLE Step 2 – CS | 15,837 | 2011 | 8 hrs |
| FE (Fundamentals of Engineering Exam ) | 50,000 | n/a | 8 hrs |
| PE (Principles and Practice of Engineering Exam) | 26,000 | n/a | 8 hrs |
| ARE (Architect Registration Exam) | 14,465 | 2011 | 4 to 6 hrs |
| SAT | 1,660,000 | 2012 | 3.75 hrs |
| ACT | 1,300,000 | 2010 | 3 to 3.5 hrs |
| PSAT | 3,500,000 | n/a | 2.1 hrs |
| LSAT | 129,958 | 2011 | 4 hrs |
| GRE | 800,000 | 2011 | 4.5 hrs |
| GMAT | 286,529 | 2012 | 3.5 hrs |
| GED | 680,000 | 2009 | 7 hrs (not continuous) |
| MCAT | 89,452 | 2012 | 4.5-5 hrs |
| CFA (Level 1,2, and 3) | 168,427 | 2011 | 6 hours |
| CFP Certification | 8,562 | 2011 | 10 hours |
| Total Exam Test Takers | 9,287,619 | Weighted Avg - 3.54 hrs | |
C. Benefits
Congress enacted the ADA Amendments Act to ensure that persons with disabilities who were refused access to programs and services would again be able to rely on the protections of the ADA. As a result, the Department believes that the enactment of the law benefits millions of Americans and the benefits to these individuals are nonquantifiable but nonetheless significant. The Department determined, however, that there was a group of individuals with disabilities who would be able to receive benefits in the form of increased access to testing accommodations from higher education institutions and testing entities, and that these benefits would be associated with specific costs to those institutions and entities, which are analyzed above.
With respect to specific benefits, in the first year, our analysis estimates that approximately 142,000 students will take advantage of additional testing accommodations that otherwise would not have occurred but for this rule. Over ten years, approximately 1.6 million full-time equivalent enrollees would benefit, or, if assuming an average four-year course of study, more than 400,000 individual students. An additional 800,000 thousand national examination test takers would benefit over that same 10 years (assuming that people take an exam one time only). The Department is interested in comment on whether it is underestimating or overestimating the number of people who will benefit from this rule.
A number of these individuals could be expected to earn a degree or license that they otherwise would not have. We were unable to find robust data to estimate the number of students who would receive a bachelor's degree after this rule goes into effect that would not otherwise have received one, but note that extensive research has shown notably higher earnings for those with college degrees over those who do not have one. Estimates of this lifetime earnings vary, with some studies estimating an earning differential ranging from approximately $300,000 to $1 million.[31] In addition, some number of students may be able to earn a degree in a higher paying field than otherwise and yet other students would still get the same degree, but perhaps be able to finish faster or more successfully (i.e., higher grades) than otherwise would be the case. All of these would be expected to lead to greater lifetime productivity and earnings.
In addition to these quantitative benefits, this rule will have significant non-quantifiable benefits to individuals with disabilities who, prior to the passage of the ADA Amendments Act and the proposed regulations, were denied the opportunity for equal access to an education or to become licensed in their chosen profession because of their inability to receive needed testing accommodations. As with all other improvements in access for individuals with disabilities, the ADA Amendments Act is expected to generate psychological benefits for covered individuals, including an increased sense of personal dignity and self-worth, as more individuals with disabilities are able to successfully complete tests and exams and more accurately demonstrate their academic skills and abilities. Some individuals will now be more likely to pursue a favored career path or educational pursuit, which will in turn lead to greater personal satisfaction.
There are additional benefits to society that arise from improved testing accessibility. For instance, if some persons with disabilities are able to increase their earnings, they may need less public support – either direct financial support or other programs or services. This, in turn, would lead to cross-sector benefits from resource savings arising from reduced social service agency outlays. Others, such as family members, may also benefit from less financial and psychological pressure due to the greater independence and earnings of the family member whose disability is now covered by the ADA under the revised definition of disability.
In addition to the discrete group of individuals with learning disabilities and ADD who will benefit from the changes made to the definition of disability, there is a class of individuals who will now fall within the nondiscrimination protections of the ADA if they are refused access to or participation in the facilities, programs, services and activities of covered entities. The benefits to these individuals are significant, but unquantifiable. The Department believes (as did Congress when it enacted the ADA) that there is inherent value that results from greater accessibility for all Americans. Economists use the term “existence value” to refer to the benefit that individuals get from the plain existence of a good, service, or resource – in this case, the increased accessibility to post-secondary degrees and specialized licenses that would arise from greater access to testing accommodations or the increased accessibility to covered entities' facilities, programs, services, or activities as a result of the ADA Amendments Act. This can also be described as the value that people both with and without disabilities derive from the guarantees of equal protection and non-discrimination. In other words, people value living in a country that affords protections to persons with disabilities, whether or not they themselves are directly or indirectly affected. There can be numerous reasons why individuals might value accessibility even if they do not require it now and do not ever anticipate needing it in the future. These include: bequest motives, benevolence toward relatives and/or friends who require accessibility features, and general feelings of empathy and responsibility toward individuals with disabilities. In other words, people in society value equity, fairness, and human dignity; even if they cannot put a dollar value on how important it is to them. These are the exact values agencies are directed to consider in EO 13563.
[1] See H.R. Rep. No. 110-730 pt. 1, at 10-11 (2008). See also 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008).
[2] See, e.g., Price v. National Board of Medical Examiners, 966 F. Supp. 419, (S.D.W. Va. 1997); Gonzales v. National Board of Medical Examiners, 60 F. Supp. 2d 703 (E.D. Mich. 1999); and Wong v. Regents of University of California, 410 F.3d 1052 (9th Cir. 2005).
[3] The Department does not believe that there are significant additional costs for providing extended time for testing for students in kindergarten through grade 12 as the result of the ADA Amendments Act for two reasons. First, the vast majority of these students are already receiving a range of classroom accommodations including extended time for testing pursuant to the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400 (2004), which provides funds to school districts to support the education of children with disabilities. Second, to the extent that there are non-IDEA students in kindergarten through grade 12 who will receive additional classroom modifications (extended time for testing) as a result of the application of the ADA Amendments Act, the Department believes that schools will not incur significant additional costs because the extra time will be supervised by the student's teachers or other existing school personnel.
[4] Office of Management and Budget, “OMB Circular A-4,” (September 17, 2003), available at http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/a-4.pdf.
[5] This assumes that post-secondary student enrollment and the number of national exam takers grows annually at the rates reflecting the Department of Education's forecasts for years 2012 through 2021, and that annual rates of growth from 2021 to 2023 remain steady (at the 2020-2021 rate of growth). See U.S. Department of Education, National Center for Education Statistics, Higher Education General Information Survey (HEGIS), “Fall Enrollment in Colleges and Universities” surveys, 1970 through 1985; Integrated Postsecondary Education Data System (IPEDS), “Fall Enrollment Survey” (IPEDS-EF:90-99), and Spring 2001 through Spring 2011, Enrollment component; and Enrollment in Degree-Granting Institutions Model, 1980–2010 summarized on U.S. Department of Education, National Center for Education Statistics Web page titled "Undergraduate Enrollment," available at http://nces.ed.gov/programs/coe/indicator_cha.asp (last visited Dec. 16, 2013).
[6] Research suggests that a significant number of college students who self-identify as having ADD may not meet the clinical definition of the disorder. One study estimates that as many as 50% of the students evaluated for ADD in a university setting may overstate their symptoms, Lindsey Jasinski and John Ranseen, “Malingered ADHD Evaluations: A Further Complication for Accommodation Reviews,” The Bar Examiner (December 2011), available at http://www.ncbex.org/assets/media_files/Bar-Examiner/articles/2011/800411JasinskiRanseen.pdf (last visited Dec. 10, 2013). Recent news reports have noted the increased demand for ADHD medications, which are stimulants, among students without ADHD. See e.g., Alan Schwarz, “Attention-Deficit Drugs Face New Campus Rules,” New York Times (April 30, 2013), available at http://www.nytimes.com/2013/05/01/us/colleges-tackle-illicit-use-of-adhd-pills.html (last visited Dec. 10, 2013). For this analysis we assumed that 30% of those who self-identify as having ADD as their primary disability would not need additional testing time (or that 70% would).
[7] Vickers, Melana Zyla, "Accommodating College Students with Learning Disabilities: ADD, ADHD, and Dyslexia," Pope Center Series on Higher Education (2010), available at http://www.popecenter.org/inquiry_papers/article.html?id=2322 (last visited Dec. 10, 2013).
[8] A 2011 GAO report reported that 79 percent of accommodations requests (across all disabilities) are related to either extra time or extended breaks. U.S. Government Accountability Office, "Higher Education and Disability: Improved Federal Enforcement Needed to Better Protect Students' Rights to Testing Accommodations (GAO-12-40) (November 2011), available at http://www.gao.gov/products/GAO-12-40 (last visited Dec. 10, 2013).
[9] U.S. Department of Education, National Center for Education Statistics, 2003–04 and 2007–08 National Postsecondary Student Aid Study (NPSAS:04 and NPSAS:08), http://nces.ed.gov/pubs2006/2006180.pdf, http://nces.ed.gov/pubs2011/2011188a.pdf (last visited Dec. 5, 2013)
[10] In our discussions with several universities, we found that their standard procedure was for teaching assistants or other non-salaried staff to proctor these tests. Therefore, we only incorporate the hourly wage in our cost analysis, and not any employee benefits.
[11] http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8530 (last visited Dec. 5, 2013).
[12] http://nces.ed.gov/fastfacts/display.asp?id=80 (last visited Dec. 5, 2013).
[13] U.S. Government Accountability Office, "Higher Education and Disability: Education Needs a Coordinated Approach to Improve Its Assistance to Schools in Supporting Students," Tables 4 & 7 (GAO 10-33) (October 2009), available at http://www.gao.gov/new.items/d1033.pdf (last visited Dec. 10, 2013).
[14] U.S. Government Accountability Office, "Higher Education and Disability: Education Needs a Coordinated Approach to Improve Its Assistance to Schools in Supporting Students" (GAO 10-33) (October 2009), available at http://www.gao.gov/new.items/d1033.pdf (last visited Dec. 10, 2013).
[15] Researchers have estimated that nearly 25%-50% of students self-identifying as ADD may not necessarily meet the clinical definition of the disorder and would thus still not qualify for an accommodation under the revised definition of disability. Lindsey Jasinski and John Ranseen, "Malingered ADHD Evaluations: A Further Complication for Accommodation Reviews," The Bar Examiner (December 2011), available at http://www.ncbex.org/assets/media_files/Bar-Examiner/articles/2011/800411JasinskiRanseen.pdf (last visited Dec. 10, 2103).
[16] See supra, footnote 6.
[17] U.S. Department of Education, Section 5—Contexts of Postsecondary Education, in The Condition of Education (2003), "Services and Accommodations for Students With Disabilities," Appendix I (Supplemental Tables), Table 34-1, 160, available at http://www.nces.ed.gov/pubs2003/2003067.pdf as reported in Melana Zyla Vickers, "Accommodating College Students with Learning Disabilities: ADD, ADHD, and Dyslexia," The John William Pope Center for Higher Education Policy (March 2010), available at http://www.popecenter.org/acrobat/vickers-mar2010.pdf (last visited Dec. 10, 2013).
[18] If 59% of takers requested 50% more time, and 15% of test takers requested 100% more time (double the time of other test takers), the average amount of time requested, on a per test taker basis, would be 60% more time. Thus, we believe that an estimate of 75% more time, on average, more than covers the likely net additional time requested.
[19] The $11.16 per hour was estimated from the median annual wage for teaching assistants of $23,220. U.S. Department of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2012-13 Edition, Teacher Assistants, available at http://www.bls.gov/ooh/education-training-and-library/teacher-assistants.htm (last visited Dec. 5, 2013). We distributed the annual wage over 52 weeks (40 hours) to translate it into an hourly comparable.
[20] http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8460 (last visited Dec. 5, 2013).
[21] If 59% of takers requested 50% more time, and 15% of test takers requested 100% more time (double the time of other test takers), the average amount of time requested, on a per test taker basis, would be 60% more time. Thus, we believe that an estimate of 75% more time, on average, more than covers the likely net additional time requested.
[22] Because test length was not found for all types of national tests, this estimate of length may over- or under-estimate the actual time.
[23] The Department believes that this one-time cost per testing entity will entail the testing entity needing to update its policies and procedures for evaluating testing accommodation requests to bring them in line with the changes made by the ADA Amendments Act and explaining those changes to the employees responsible for evaluating testing accommodation requests.
[24] U.S. Government Accountability Office, "Higher Education and Disability: Improved Federal Enforcement Needed to Better Protect Students' Rights to Testing Accommodations" (GAO-12-40) (November 2011), available at http://www.gao.gov/products/GAO-12-40 (last visited Dec. 12, 2013).
[25] U.S. Government Accountability Office, "Higher Education and Disability: Improved Federal Enforcement Needed to Better Protect Students' Rights to Testing Accommodations" (GAO-12-40) (November 2011), available at http://www.gao.gov/products/GAO-12-40 (last visited Dec. 12, 2013)
[26] Testing companies provided data on the most recent testing year for which they had data; however, this time period may vary across testing companies. Some accommodations may have been requested in a different year from when they were granted. Additionally, data on accommodations requested and granted include different tests. Data on accommodations requested by accommodation type pertain to the following tests: GRE, MCAT, MPRE, NAPLEX, PRAXIS, SAT, and USMLE. Data on accommodations granted by accommodation type pertain to the following tests: ACT, GMAT, GRE, MCAT, MPRE, NAPLEX, PRAXIS, SAT, and USMLE. Due to these limitations, the percentages do not necessarily represent a one-to-one comparison between accommodations requested and those that were granted. The “Other” category includes accommodations such as being allowed to bring in a snack or using various types of assistive technology to take the test, such as computer software to magnify text or convert it into spoken language.
[27] http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8530 (last visited Dec. 5, 2013).
[28] U.S. Department of Education, National Center for Education Statistics, 1999-2000, 2003-04, and 2007-2008 National Post Secondary Student Aid Study (NPSAS: 2000, NPSAS:04, and NPSAS:08), available at http://nces.ed.gov/pubs2002/2002152.pdf; http://nces.ed.gov/pubs2006/2006180.pdf, http://nces.ed.gov/pubs2011/2011188a.pdf (last visited Dec. 16, 2013). HDR, Incorporated, computed the figures based on the percentage and the total number of undergraduate students based on NPSAS data.
[29] As mentioned above, due to a lack of data, not all possible national examinations were used to estimate the number of total national test takers.
[30] U.S. Government Accountability Office, "Higher Education and Disability: Improved Federal Enforcement Needed to Better Protect Students' Rights to Testing Accommodations" (GAO-12-40) (November 2011), available at http://www.gao.gov/products/GAO-12-40 (last visited Dec. 10, 2013); National Conference of Bar Examiners, "2011 Statistics" (March 2012), available at http://www.ncbex.org/assets/media_files/Statistics/2011Statistics.pdf (last visited Dec. 16, 2013); National Council of Architectural Registration Boards, "ARE Pass Rates by Division," available at http://www.ncarb.org/ARE/ARE-Pass-Rates/DivisionPR.aspx (last visited, Dec. 5, 2013); Dahli Gray & Teresa R. Metinko, "Decrease in the Number of People Taking the CPA Exam Not Due to the 150-Hour Requirement," American Journal of Business Education, Volume 3, Issue 11 (November 2010), available at http://journals.cluteonline.com/index.php/AJBE/article/view/437/425 (last visited Dec. 16, 2013); National Association of Boards of Pharmacy, "NAPLEX Passing Rates for First-Time Candidates per Pharmacy School from 2007 to 2011," available at http://www.nabp.net/programs/assets/SchoolPassRatesNAPLEX2007-2011.pdf (last visited Dec. 16, 2013); National Society of Professional Engineers, "The 80% Myth in the Engineering Profession," available at http://community.nspe.org/blogs/licensing/archive/2010/09/13/the-80-myth-in-the-engineering-profession.aspx (last visited Dec. 5, 2013); American Speech-Language-Hearing Association, "National Summary Report: Descriptive Statistics of PRAXIS Examination Scores for the Speech-Language Pathology Specialty Test for Test Administration Years 2000-2001 through 2010-2011," available at http://www.asha.org/uploadedFiles/PraxisScoresSLP.pdf (last visited Dec. 5, 2013); National Council of State Boards of Nursing, "2011 Number of Candidates Taking NCLEX Examination and Percent Passing," available at https://www.ncsbn.org/Table_of_Pass_Rates_2011.pdf (last visited Dec. 16, 2013).
[31] See Mark Schneider, "How Much Is That Bachelor's Degree Really Worth?: The Million Dollar Misunderstanding," American Enterprise Institute, AEI Online (May 2009), available at http://www.aei.org/article/education/higher-education/how-much-is-that-bachelors-degree-really-worth/ (last visited Dec. 16, 2013); U.S. Census Bureau, "Work-Life earnings by Field of Degree and Occupation for People with a Bachelor's Degree: 2011," American Community Survey Briefs (October 2012), available at http://www.census.gov/prod/2012pubs/acsbr11-04.pdf (last visited Dec. 16, 2013); Anthony P. Carvevale et al., "The College Payoff –Education, Occupations, Lifetime Earnings," Georgetown University Center on Education and the Workforce (2011), available at http://cew.georgetown.edu/collegepayoff/ (last visited Dec. 10, 2013).