FINAL REGULATORY ASSESSMENT

FINAL RULE

AMENDMENT OF AMERICANS WITH DISABILITIES ACT TITLE II AND TITLE III REGULATIONS TO IMPLEMENT ADA AMENDMENTS ACT OF 2008 UNITED STATES DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION DISABILITY RIGHTS SECTION 1425 NEW YORK AVENUE, N.W. WASHINGTON, D.C. 20005 [FEBRUARY 10, 2016]

Contents

Executive Summary

The U.S. Department of Justice (the Department) is presenting this final Regulatory Assessment (RA), prepared by HDR Decision Economics (HDR), in support of the final rule incorporating the ADA Amendments Act of 2008 (ADA Amendments Act or the Act) into the Department’s regulations regarding titles II (nondiscrimination in State and local government services) and III (nondiscrimination by public accommodations and commercial facilities) of the Americans with Disabilities Act (ADA).  This RA estimates the potential costs under this action, as required by Executive Order 12866 and in line with the guidelines set forth by the Office of Management and Budget’s (OMB) Circular A–4.

Executive Order 12866 requires Federal agencies to submit “significant regulatory action[s]” to OMB for interagency review.  For the category of significant regulatory actions that are “economically significant,” Executive Order 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 Executive Order 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.

The costs of this rule do not reach $100 million in any single year, and thus it is not economically significant.

Congress enacted the ADA Amendments Act to ensure that persons with disabilities who were denied coverage under the ADA 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 non-quantifiable but nonetheless significant.

The Purpose and Need for this Rule

This rule is necessary in order to incorporate the ADA Amendments Act’s changes to titles II (nondiscrimination in State and local government services) and III (nondiscrimination by public accommodations and commercial facilities) of the ADA into the Department’s ADA regulations and to provide additional guidance on how to apply those changes.  The ADA Amendments Act, which took effect on January 1, 2009, was enacted in response to earlier Supreme Court decisions that significantly narrowed the application of the definition of disability under the ADA.¹  The ADA Amendments Act clarifies the proper interpretation of the term “disability” in the ADA and fulfills Congressional intent to restore the broad scope of the ADA by making it easier for individuals to establish that they have a disability within the meaning of the statute.²  The Act authorizes the Attorney General to issue regulations under title II and title III of the ADA to implement sections 3 and 4 of the Act, including the rules of construction presented in section 3.³  The Department is making several major revisions to the title II and title III ADA regulations that are based on specific provisions in the ADA Amendments Act.  The revised regulatory language clarifies that the definition of “disability” should be interpreted broadly and that the question of whether an individual’s impairment is a disability should not demand extensive analysis.  Further, the regulations clarify that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations not to discriminate based on disability.  In addition, the revised regulations expand the definition of “major life activities” by providing a non-exhaustive list of major life activities and specifically including the operation of major bodily functions.  The revisions also specify rules of construction to be applied when determining whether an impairment substantially limits a major life activity.

Summary of Analysis and Results

As noted above, Congress enacted the ADA Amendments Act in 2008 to ensure that persons with disabilities who were denied coverage previously under the ADA 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 that the benefits to many of these individuals are non-quantifiable, but nonetheless significant.  This rule incorporates into the Department’s titles II and III regulations the changes made by the ADA Amendments Act.  In accordance with OMB Circular A–4, the Department estimates the costs and benefits of this proposed rule using a pre-ADA Amendments Act baseline.  Thus, the effects that are estimated in this analysis are due to statutory mandates that are not under the Department’s discretion.  The Department has determined that the costs of this rule do not reach $100 million in any single year, and thus it is not an economically significant rule. 

In the Initial RA, the analysis focused on estimating costs for processing and providing reasonable modifications and testing accommodations (accommodations)⁴ to individuals with learning disabilities and Attention Deficit Hyperactivity Disorder (ADHD)⁵ for extra time on exams as a direct result of the ADA Amendments Act.  Although the Department’s analysis focused only on these specific costs, the ADA Amendments Act extends coverage to people with the full range of disabilities, and the accommodation of those individuals might entail some economic costs.  After review of the comments, and based on the Department’s own research, the Department has determined, however, that the above-referenced exam costs represent the only category of measurable compliance costs that the ADA Amendments Act will impose and the Department was able to assess.  While other ADA Amendments Act compliance costs might also ensue, the Department has not been able to specifically identify and measure these potential costs.  The Department believes, however, that any other potential costs directly resulting from the ADA Amendments Act will likely be minimal and have little impact on the overall results of this analysis.

The data used to support the estimates in this Final RA focus on (1) the increase in the number of postsecondary students or national examination test takers requesting and receiving accommodations - specifically, requests for extra time on exams—as a result of the changes made to the ADA by the ADA Amendments Act; and (2) the actual cost of these additional accommodations, which involves costs of providing staff with the training on the changes made to the ADA by the ADA Amendments Act, administrative costs to process the additional accommodation requests made as a direct result of the ADA Amendments Act, and the costs of additional proctor time needed for these additional accommodation requests.

For both postsecondary institutions and national testing entities, costs are broken down into three components:

• One-time cost of training staff on relevant impact of ADA Amendments Act;
• Annual cost of processing additional accommodation requests for extra exam time made as a direct result of the ADA Amendments Act; and
• Annual cost of proctoring additional time on exams as a direct result of the ADA Amendments Act.

Based on the Department’s calculations, total costs to society for implementing the revisions to the ADA Amendments Act range from $31.4 million to $47.1 million in the first year.  The first year of costs will be higher than all subsequent years because the first year includes the one-time costs of training.  Note that even the high-end of this first-year cost range is well within the $100 million mark that signifies an “economically significant” regulation.  The breakdown of total costs by entity is provided in Table 1.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Taking these costs over the next 10 years and discounting to present value terms at a rate of 7 percent, the total costs of implementing this final rule are approximately $214.2 million over 10 years, as shown in Table 2 below.

1. INTRODUCTION

This chapter begins by providing an overview of the structure of this RA, and explaining how information is organized and presented in subsequent chapters.  The remainder of this chapter describes the purpose and need for this rule and the scope of this RA, provides a brief description of the NPRM that was published in 2014, and includes summaries and responses to public comments received in response to the NPRM and our Initial RA.

Chapter 2 presents an overview of the methodology for calculating the costs of the ADA Amendments Act and how the methodology is applied to the two separate entities.

Chapter 3 describes the available data, estimates, and assumptions that are the basis for inputs used in the cost methodology described in Chapter 2 and that are applied to calculate costs in Chapter 4.

Chapter 4 presents the cost analysis and results.

Chapter 5 discusses the benefits of this rule, which are not quantified in the analysis.

1.1. Purpose and Need for Rule and Scope of Regulatory Assessment

This rule is necessary in order to incorporate the ADA Amendments Act’s changes to titles II (nondiscrimination in State and local government services) and III (nondiscrimination by public accommodations and commercial facilities) of the ADA into the Department’s ADA regulations and to provide additional guidance on how to apply those changes.  The ADA Amendments Act, which took effect on January 1, 2009, was enacted in response to earlier Supreme Court decisions that significantly narrowed the application of the definition of disability under the ADA.⁶  The ADA Amendments Act clarifies the proper interpretation of the term “disability” in the ADA and fulfills Congressional intent to restore the broad scope of the ADA by making it easier for individuals to establish that they have a disability within the meaning of the statute.⁷  The Act authorizes the Attorney General to issue regulations under title II and title III of the ADA to implement sections 3 and 4 of the Act, including the rules of construction presented in section 3.⁸  The Department is making several revisions to the title II and title III ADA regulations that are based on specific provisions in the ADA Amendments Act.  The revised regulatory language clarifies that the definition of disability should be interpreted broadly and that the question of whether an individual’s impairment is a disability should not demand extensive analysis.  Further, the regulations clarify that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations not to discriminate based on disability.  In addition, the revised regulations expand the definition of “major life activities” by providing a non-exhaustive list of major life activities and specifically including the operation of major bodily functions.  The revisions also add rules of construction to be applied when determining whether an impairment substantially limits a major life activity.

The Department notes that the Supreme Court cases limiting the application of the definition of disability had the most significant impact on individuals asserting coverage under title I of the ADA with respect to employment.  The legislative history of the ADA Amendments Act is replete with examples of how individuals with a range of disabilities were unable to successfully challenge alleged discriminatory actions by employers because courts found that they did not qualify as individuals with disabilities under the Supreme Court’s narrow standards.⁹  With respect to titles II and III, while the statutory amendments required by the ADA Amendments Act affect persons with all types of disabilities and across all titles of the ADA, Congress anticipated that the ADA Amendments Act’s expanded definition would especially impact persons with learning disabilities who assert ADA rights in education and testing situations.¹⁰  Congress was concerned about the number of individuals with learning disabilities who were denied reasonable modifications or testing accommodations (e.g., extra exam time) because covered entities claimed these individuals did not have disabilities covered by the ADA.

In the NPRM, the Department requested 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 areas other than additional time for postsecondary students and national examination test takers with ADHD or learning disabilities.  Those comments and the Department’s response are discussed below.  The Department wishes to stress that, although its economic analysis is focused on estimating costs for processing requests and providing extra time on exams as a direct result of the ADA Amendments Act, the ADA, as amended, extends coverage to individuals with the full range of disabilities and affords such individuals the full range of nondiscrimination protections under the ADA.¹¹  The Department is aware that the accommodation of those individuals might entail some economic costs; however, it appears that in light of the legislative history¹² and the experience of the Department in resolving ADA claims from 1990 to the present, the above-referenced exam costs represent the only category of measurable compliance costs that the ADA Amendments Act will impose and the Department was able to assess.  While other ADA Amendments Act compliance costs might also ensue, the Department has not been able to specifically identify and measure these potential costs.  The Department believes, however, that any other potential costs directly resulting from the restoration of coverage to individuals with disabilities who assert their rights under other ADA nondiscrimination provisions will likely be minimal and have little impact on the overall results of this analysis.

1.2. NPRM

On January 30, 2014, the Department issued a Notice of Proposed Rulemaking (NPRM)¹³ to amend its ADA title II and title III regulations at 28 CFR parts 35 and 36, respectively, in order to incorporate into its regulations the statutory changes to the ADA set forth in the ADA Amendments Act, Public Law 110–325. 

In the NPRM, the Department proposed revisions to the definition of disability contained in the title II and title III ADA regulations, all of which are based on specific provisions in the ADA Amendments Act or on specific language in the legislative history.  Those proposed revisions state that the definition of disability shall be interpreted broadly.  The proposed revisions also make it clear that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their statutory obligations and that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.  In addition, the proposed revisions expand the definition of “major life activities” by providing a non-exhaustive list of major life activities and specifically including the operation of major bodily functions.  The proposed revisions also added rules of construction to be applied when determining whether an impairment substantially limits a major life activity. 

The Department sought comments on the NPRM itself, and the Initial RA supporting it.

1.3. Public Comments on Regulatory Assessment and Department Responses

This section discusses public comments to the Initial RA that accompanied the NPRM, as well as changes made to the estimation of likely costs of this rule in response to those comments.

While more than 50 comments were received during the NPRM comment period, only a few of those directly addressed the assumptions, data, or methodology used in the Initial RA.  The Department received comments from persons with disabilities, organizations representing educational institutions and testing entities, individual academics, and other private individuals.  The preamble to this final rule provides the primary forum for substantive responses to these comments. 

General and Recurring Concerns Expressed in Comments

Many commenters expressed appreciation for the proposed regulation, with several noting that the regulation would offer qualitative and quantitative benefits.  Some of the quantitative benefits noted by commenters were a reduction in litigation costs as well as access to educational opportunities for persons with disabilities that would enhance employment prospects, productivity, and future earnings and investments.  Qualitative benefits referenced in the comments included enhanced personal self-worth and dignity, as well as the values of equity, fairness, and full participation.  Other commenters expressed concern about costs associated with implementation of the regulation.

The Department reviewed a number of comments suggesting that it underestimated the costs that postsecondary schools or national testing entities will incur to comply with the ADA Amendments Act.  Commenters stated that the ADA Amendments Act will lead to a significant increase in the number of students seeking accommodations from postsecondary schools, which will lead to substantially increased direct costs (e.g., the costs of providing additional exam time and other accommodations to students with disabilities) and indirect costs (e.g., the costs of processing these requests, complaints to the Office for Civil Rights at the U.S. Department of Education, and lawsuits).  Commenters further stated that the Department overlooked the costs that postsecondary schools will incur in providing accommodations other than additional exam time, such as tutors, note-takers, auxiliary aides, e-books, etc.  These commenters suggested that postsecondary schools will need to hire additional staff to manage the additional administrative burden that the ADA Amendments Act imposes.

Those comments, as well as other related comments, are specifically addressed below.  But, as a threshold matter, the Department believes that the concerns predicated on the assumption of a significant rise in students seeking reasonable modifications and testing accommodations due to changes brought about by the ADA Amendments Act are overstated.  One of the primary purposes of the ADA Amendments Act was to restore ADA coverage to a subset of individuals with disabilities who lost ADA protection as a result of a series of Supreme Court decisions dating back to 1999.  Congress did not intend the ADA Amendments Act to expand the pool of individuals with disabilities eligible for coverage under the ADA beyond those it originally intended when the ADA was enacted in 1990.

While the Department recognizes that there has been an increase in the number of students with disabilities requesting testing accommodations at postsecondary institutions, much of this increase is likely not attributable to the passage of the ADA Amendments Act.  Commenters and the existing data suggest that, for the most part, increases in the number of students with disabilities attending college and seeking accommodations are likely related to the following factors:

• There are more diagnoses of disabilities in children overall since 1997;¹⁴
• More students are attending college generally;¹⁵
• Other laws such as the Individuals with Disabilities Education Act (IDEA) and section 504 are causing students with disabilities to be identified more widely and at a younger age; ¹⁶
• The stigma of identifying as a person with a disability appears to have diminished since the passage of the ADA in 1990;
• Diagnoses of autism spectrum disorders among children have increased significantly since 1997, perhaps as a result of improved diagnostic tools and protocols¹⁷; and
• Postsecondary schools have improved their ability to accommodate students with disabilities, thus encouraging more students to seek such accommodations, and empowering students with disabilities to enroll in college and remain enrolled there.¹⁸

Most of the students affected by the ADA Amendments Act are students whose impairments did not clearly meet the definition of disability under the ADA after the series of Supreme Court decisions beginning in 1999 reduced the scope of that coverage.  For instance, under the narrowed scope of coverage, some individuals with learning disabilities or ADHD may have been denied reasonable modifications or testing accommodations or failed to request them in the belief that such requests would be denied.

As a result, the most likely impact of the ADA Amendments Act is seen in the number of students with disabilities eligible to request and receive accommodations in testing situations.  There are different types of accommodations requested in testing situations, but requests for additional exam time appear to be the type of accommodation most likely to have a significant, measurable cost impact.  Other types of accommodations requested in testing situations are expected to incur few to no additional costs as a result of the ADA Amendments Act and this rule.  For instance, requests for accommodations such as the use of assistive technology or the need for alternative text formats were the types of accommodations that would have been granted prior to the passage of the ADA Amendments Act because students with sensory disabilities needing these types of accommodations would have been covered by the ADA even under the narrower scope of coverage arising from the application of the Supreme Court’s decisions in Toyota and Sutton.  As a result, those types of accommodations cannot be directly attributed to the ADA Amendments Act.  In addition, other types of accommodations such as adjustments to the testing environment (e.g., preferential seating or alternative locations) or the ability to have snacks or drinks would result in minimal or no costs.  Therefore, the Department’s examination of the costs of this rule is confined to those accommodations that individuals at postsecondary institutions or taking national examinations are most likely to request as a result of the ADA Amendments Act and that are most likely to incur measureable costs: extra time on tests and examinations.

One commenter, however, asserted that costs should be estimated for entities other than postsecondary institutions and testing entities, such as elementary and secondary schools, courthouses, etc.  Certain concerns related to elementary and secondary schools are addressed below, but the Department found no direct evidence to indicate that institutions other than postsecondary institutions and testing entities will incur any significant economic impact as a result of accommodating individuals now covered under the ADA after passage of the ADA Amendments Act.  Even after conducting further research, the Department was unable to identify any accommodations that would result in compliance costs that could be specifically attributable to the ADA Amendments Act other than those identified and measured in this analysis—i.e., accommodations for extra time on exams.  While the Department anticipates that other individuals with disabilities will benefit from the ADA Amendments Act, no specific subsets of individuals with disabilities or specific accommodations were identified.  Accordingly, it appears that the economic impact of ADA Amendments Act compliance for entities other than postsecondary schools and testing entities will not significantly affect the overall economic impact of the rule, and thus those costs are not analyzed here.

One commenter cited the 2013–2014 Institutional Disability Access Management Strategic Plan at Cornell University¹⁹ as an example of the kind of careful planning done by postsecondary institutions to address the needs of students with disabilities as a basis for determining that the costs of implementing the ADA Amendments Act will be very high.  This document focuses almost exclusively on initiatives taken in furtherance of ADA compliance generally, rather than compliance with the ADA Amendments Act specifically.  Further, this document discloses that Cornell University annually updates its plans and policies toward individuals with disabilities.  Nothing in this document indicates that Cornell University is absorbing high costs as a result of such ongoing updates, or that the ADA Amendments Act has presented Cornell University with an unusually high burden, over and above the ordinary obligations that the ADA itself imposes.  It is true that this document reflects careful, comprehensive, and possibly costly planning on the behalf of students with disabilities, but the expense inherent in such planning is attributable to the overall requirements of the ADA itself, rather than the implementation of the ADA Amendments Act.

Comments Regarding the ADA and Related Laws

Many of the commenters' points regarding increased costs appear to apply to concerns about the costs of complying with the ADA generally and not to costs related to expanded coverage due to the ADA Amendments Act. It is true that in some cases the costs of accommodating some students with more severe mobility and sensory disabilities could be significant, but these students were clearly covered, even under the restrictive standards from Sutton and Toyota, and accordingly such costs cannot be attributed to the implementation of the ADA Amendments Act. One commenter expressed a concern that there has been an increase in requests for "exotic or untrained animals as service or emotional support animals" in student housing provided by postsecondary institutions. The Department notes that neither "exotic animals" nor "emotional support animals" qualify as service animals under the existing regulations implementing titles II and III of the ADA, and thus, any costs related to allowing such animals are not due to the application of the requirements of this rule.²⁰ And, similar to the observation noted above, the vast majority of students who use service animals as defined under the ADA have disabilities that would have been covered prior to passage of the ADA Amendments Act, even under the Supreme Court's more narrow application of the definition of disability. So, although such costs may be measurable, they cannot fairly be attributed to the implementation of the ADA Amendments Act.

Comments Regarding the Costs for the Adjustment of Existing Policies

The Department acknowledges that postsecondary schools and national testing entities will incur some costs to update their written ADA policies and training procedures to ensure that the definition of disability is interpreted in accordance with the requirements of the ADA Amendments Act, but has found no evidence to indicate that such costs would be high.  The Department also notes that even prior to passage of the ADA Amendments Act, many postsecondary schools had policies in place that were broader and more comprehensive than would have been required under the more restrictive standards set forth in Sutton and Toyota.  As a result, these policies and procedures may require few, if any, updates to conform to the ADA Amendments Act and the revised regulations.  The Department has found no evidence to suggest that the changes required by the ADA Amendments Act have placed or will place a significant burden upon the ongoing processes of evaluating and updating policies that already exist at postsecondary schools or with national testing entities.  Nevertheless, the Department has attempted in this Final RA to quantify the cost of training staff members and updating policies as a result of the changes that the ADA Amendments Act final rule may require.

Some commenters argued that the Department’s estimate of a one-time cost of $500 per institution to change policies and procedures in compliance with the ADA Amendments Act was too low.  Instead, one commenter proposed an estimated one-time cost of $2,500 per institution, and another commenter suggested an estimated one-time cost of $5,000 per institution for the first year’s training costs.  The underlying data and methodology to support these estimates were not provided by these commenters.

The Department has found no data to substantiate the claims that the cost of changing existing policies and training procedures to comply with the ADA Amendments Act will be $2,500 or $5,000 per institution.  The commenters proposing those costs did not provide any relevant evidence or arguments in support of such costs, and the Department’s research found no evidence to indicate that any institutions have incurred training or policy revision costs of that magnitude since the ADA Amendments Act became effective in 2009.  The commenter suggesting a $5,000 cost cites to one institution’s disability access plan to suggest some of the types of costs that might be incurred.  The referenced document, however, does not provide specific dollar figures and is not ADA Amendments Act specific.  Therefore, the Department does not believe that the commenter’s projected cost increases are correct because, as discussed above, the programmatic concerns identified in this document pertained to ADA compliance as a whole, but not with changes to the ADA created by the ADA Amendments Act specifically.  The Department acknowledges that the absence of evidence of such costs, however, is not necessarily conclusive that some costs do not or will not exist, but the Department believes that, had postsecondary schools incurred $2,500 to $5,000 in such compliance costs since 2009 or if they expected to incur such costs going forward, some indicia of these costs would be readily apparent.

Because no relevant supporting information regarding the commenters’ estimates was provided, the Department conducted additional independent research and interviewed representatives at two postsecondary institutions to determine whether any additional formal or informal training had been needed to understand the implications of the ADA Amendments Act (and make adjustments to existing policies and procedures to conform to the Act’s requirements).  One of those two institutions stated that no additional training had been needed.  The second institution said that additional training had been provided during meetings with staff.  Approximately two hours per staff member (i.e., two hours per meeting) had been dedicated to this training.  Approximately two part-time staff and six graduate students (working part time) received this training.  In addition, the staff member providing the training had to attend a one-day conference to receive the information to pass along to the other staff.  The Department conducted research to determine the costs of attending such a conference and receiving training on the changes to the law resulting from the ADA Amendments Act.  Based on this independent research and feedback from representatives of two postsecondary institutions, the Department increased its estimate for one-time training costs from approximately $500 to $1,371 (see Methodology section for greater details on how the $1,371 was derived).

Comments Regarding the Costs of Additional Staff Time for the Administration of the Rule

Some commenters argued that the rule will lead to a significant increase in postsecondary institution accessibility support staff time devoted to disability accommodation issues, perhaps even requiring postsecondary institutions to hire additional personnel.  One commenter representing higher educational institutions estimated that each affected institution would be required to hire one new full-time staff member, at $40,000 per year, to address increased student requests.  This commenter cited a study that indicated that the mean number of staff who assist students with disabilities is four per campus.  The Department questions the commenter’s estimate that each affected institution would have to increase their staff by one full-time staff person, or approximately 25 percent of the mean entire staff, to address the incremental changes created by the ADA Amendments Act.  The general increase in accommodation requests is likely attributable to a number of other factors not related to the ADA Amendments Act, including higher enrollment of students with disabilities.  While there will likely be an incremental increase in the number of testing accommodations requested and granted as a direct result of the ADA Amendments Act, this incremental increase is unlikely to be the driving factor for hiring additional staff.

Similarly, some commenters argued that the Department needed to incorporate estimates of the additional administrative time needed by postsecondary institutions and testing entities to review and administer additional requests for extended time on examinations.  To address these concerns, the Department contacted several universities and testing entities, but received responses from only one school and one testing entity, and those responses were inconclusive.  The postsecondary school said that there has been no noticeable increase in applications for accommodations since the passage of the ADA Amendments Act, but the testing entity stated that it has detected a large increase in requests for additional testing time since the passage of the ADA Amendments Act.  In light of the uncertainty regarding any potential additional staff time needed to review additional requests for accommodations, the Department has made several assumptions based on research and discussions with subject matter experts and impacted entities so as to incorporate estimated costs for this item.  This information is presented in Section 3.1.3 and Section 3.2.3.

Comments Regarding the Costs of Additional Disputes

Some commenters argued that the ADA Amendments Act would lead to increased litigation and internal disputes against institutions, as the scope of potential litigants would expand due to the increase in individuals covered by the ADA as a result of the passage of the ADA Amendments Act.  Other commenters disagreed, stating that the new regulation would reduce the volume of complaints and litigation and streamline outstanding complaints and litigation due to increased consistency and predictability in judicial interpretation and executive enforcement.  The Department does not agree with the commenters who asserted that the impact of the ADA Amendments Act will lead to an increase in litigation and disputes.  The ADA Amendments Act clarified several contentious or uncertain aspects of the ADA, and thus may have decreased the overall amount of ADA litigation by reducing ambiguities in the law.  However, assessing the impact of covered entities’ failures to comply (or alleged failures to comply) with the requirements of the ADA, as amended, and the legal challenges that may result from compliance failures, are not properly within the ambit of this RA, nor do we have any relevant information that would assist in an analysis of such issues even if it they were appropriate to include in the RA.

Comments Regarding the Computation of Costs for Additional Examinations and Testing

One commenter stated that the Department placed too much emphasis on the cost of proctor supervision when assessing the cost of extra exam time in postsecondary institutions.  The commenter posited that many tests are administered electronically; accordingly, the costs of those tests are appropriately based on the cost of “seat time” and not the cost of proctor supervision.  Unfortunately, no commenter provided a description of what the additional costs per student might be in such circumstances, nor did any commenter explain how such costs could be computed.  The Department contacted several postsecondary institutions and testing entities for approximations of seat time costs, but did not receive any relevant information.

Two commenters noted that for some long national examinations, additional testing time would necessitate the provision of an additional testing day that would increase costs substantially.  This potential cost was not estimated in the Initial RA because research indicated that prior to the passage of the ADA Amendments Act, national examination institutions were already accommodating individuals who required additional time because of disabilities already explicitly covered by the ADA.  As a result, testing entities were already providing an additional testing day, where necessary.  Therefore, any individuals who would now request additional time on national exams lasting six hours or more as a direct result of the ADA Amendments Act would be accommodated alongside those individuals who would have been covered prior to the ADA Amendments Act, and any potential costs would likely be minimal.  Despite this conclusion, the Department has nonetheless conducted a sensitivity analysis to assess these potential costs with the assumption that testing entities were not already providing an additional testing day to accommodate certain individuals with disabilities.  Because an additional testing day for these examinations was likely already provided prior to passage of the ADA Amendments Act, the Department continues to believe that the costs of accommodating any additional students who are now seeking additional exam time as a direct result of the ADA Amendments Act will be minimal.  As a result, the sensitivity analysis the Department has conducted likely overestimates these potential costs.  Further information on the potential range of these costs can be found in Section 4.1.3.

Comments Regarding the Estimate of ADHD Prevalence among Postsecondary Students

Several commenters questioned the Department’s approach of reducing the portion of students with ADHD who would be impacted by the ADA Amendments Act.  In the Initial RA, the Department had assumed based on some available research that 30 percent of those who self-identify as having ADHD as their primary disability would not need additional testing time because they would not meet the clinical definition of the disability.  One commenter raised concern about presenting a specific percentage of students with ADHD who would not meet that clinical definition, because that number might inadvertently become a benchmark for postsecondary institutions and national testing entities to deny accommodations to a similar percentage of applicants requesting additional exam time because of their ADHD.  The Department did not intend for this percentage to establish a benchmark.  Covered entities should continue to evaluate requests for additional exam time by all individuals with disabilities on an individualized basis.  In direct response to these concerns, the Department has decided not to reduce the number of individuals with ADHD who could now receive testing accommodations as a direct result of the ADA Amendments Act.

Comments Regarding the Economic Impact of the Rule on Industries

A commenter representing institutions of higher education stated that the rule would have a significant impact on higher education as an industry, such that the rule should be considered “economically significant.”  For the reasons indicated throughout this Final RA, however, the Department does not believe that this commenter’s points were persuasive.  Based on the Department’s own research and evaluation, it is convinced that the cost of ADA Amendments Act compliance will be far less than $100 million dollars in any given year. 

The commenter stated that the Department erred in its analysis by focusing primarily on college students with learning disabilities or ADHD and did not factor in potential costs related to students with other impairments including depression, schizophrenia, obsessive compulsive disorder, traumatic brain injuries, post-traumatic stress disorder, visual impairments not rising to the level of blindness, anxiety, autism, food allergies, or transitory impairments.  Prior to passage of the ADA Amendments Act, higher educational institutions already were incurring costs to accommodate students with the above-referenced impairments that constituted disabilities.  These costs are not attributable to this rulemaking and thus not analyzed as such.  For the relatively small number of students with the above referenced disabilities who might not have been covered prior to the passage of the ADA Amendments Act, the Department was unable to specifically identify or measure any potential costs that postsecondary institutions would incur in accommodating these students.

The commenter also stated that the Department’s regulatory assessment should have considered the costs of academic accommodations other than extended testing time, such as “note takers, tutors, technology based auxiliary aids, electronic versions of text-books and class materials, and other accommodations and aids,” as well as “significant costs resulting from accommodation requests outside the classroom context, such as those involving residence halls, food services or athletics.”  The Department notes that, as with reasonable modifications and testing accommodations required prior to the ADA Amendments Act, the accommodations or auxiliary aids or services described by the commenter were being provided before the passage of the ADA Amendments Act and will not entail new costs specifically attributable to the ADA Amendments Act.

Comments Regarding ADA/IDEA Concerns

Several commenters addressed the possibility that the expanded definition of disability could result in more cases arising under the ADA, rather than under the Individuals with Disabilities Education Act (IDEA), in elementary and secondary schools.  An association focusing on children with learning disabilities noted that students who manage their disabilities well often find that school districts challenge their IDEA claims of disability, but that such claims may meet with more success under the ADA or section 504 of the Rehabilitation Act.  One commenter, whose comments were endorsed by several other groups, noted that particular subsets of children may be eligible for benefits under the ADA but not under the IDEA.  These include students with episodic conditions, mitigated conditions, and conditions such as diabetes and seizure impairments that may require maintenance support, such as diet or medications.  A national association of kindergarten through twelfth-grade educators indicated that, increasingly, in its view, some parents are more likely to seek school-related modifications for their child under the ADA, rather than the IDEA.  This commenter suggested, accordingly, that ADA litigation would increase once parents become aware of the application of a broader definition of disability due to the ADA Amendments Act.

The Department recognizes that the definition of disability under the IDEA is different than that under the ADA.²¹  While many students will be covered by both statutes, some students covered by the ADA will not be eligible for special education services under the IDEA; however, such students are covered by section 504 of the Rehabilitation Act and are entitled to a “free appropriate public education” (FAPE) under the Department of Education’s section 504 regulation.  The Department acknowledges commenters’ views that some parents may assert rights for their elementary, middle, and high school students under the ADA due to the expanded definition of disability.  However, the Department believes that the overall number of additional requests for reasonable modifications by elementary and secondary students that can be attributed to the ADA Amendments Act will be small and that any resulting economic impact is likely to be extremely limited.  Students with ADHD and learning disabilities, who already are covered by section 504 and, in many instances, the IDEA as well, are entitled to needed special education, related aids and services, modifications, or auxiliary aids or services under those statutes.  Further, prior to filing suit under the ADA, any student that is covered under both the ADA and the IDEA must exhaust administrative remedies under the IDEA if seeking relief that is available under that statute.  Thus, while the ADA is critical to ensuring that students with disabilities have a full and equal opportunity to participate in and benefit from public education, when viewed in concert with the protections already afforded by section 504 and the IDEA, the economic impact of implementing the ADA Amendments Act in K–12 schools will be minimal.  The Department also notes that none of these commenters provided any data demonstrating that elementary and secondary schools have incurred additional costs due to the passage of the ADA Amendments Act more than six years ago.

Comments Regarding Possible Fraudulent Claims of Disability

A number of commenters stated that the rule might encourage some people without learning disabilities to claim that they have learning disabilities, so that they can take advantage of extra exam time.  The Department has not identified any study suggesting that the release of this rule—more than six years after the effective date of the ADA Amendments Act—likely will motivate a spike in false claims for students seeking extra time on examinations.  While individuals with learning disabilities previously denied accommodations may be motivated to seek recognition of their disabilities under this rule because it may offer an improved opportunity for consideration of their unmet needs, the Department does not believe that individuals who might feign disabilities in pursuit of extra time would modify their behavior as a result of this rule; to the contrary, the motivation and opportunity to feign such disabilities would have existed even prior to the passage of the ADA Amendments Act.  The Department acknowledges that there will always be some individuals who seek to take advantage of rules that extend benefits to particular classes of individuals.  However, the Department has determined that the costs of such fraudulent behavior cannot readily be computed.  It appears that there is no generally accepted metric for determining how many claims of disability are fraudulent, or how the cost of such fraudulent activity should be computed.  And, the Department found no evidence to indicate that the rate of fraudulent claims of disability has increased since the implementation of the ADA Amendments Act in 2009.  It should be emphasized that individuals seeking accommodations for their disabilities in testing situations under the ADA will still undergo an individualized assessment to determine whether they have disabilities covered by the statute.  Extended exam time is an accepted reasonable modification or testing accommodation under the ADA for persons whose disabilities inhibit their ability to complete timed tests.  Because the Department is not able to identify or measure an increase in fraudulent claims associated with this rule, those potential costs are not reflected in this economic analysis.

2. METHODOLOGY

This chapter explains the methodology used to calculate the costs to society of the revisions to the title II and title III regulations to implement the ADA Amendments Act.  As explained in Chapter 1, the revisions are expected to produce significant benefits for two groups of people:

• Students with ADHD and learning disabilities who could request and receive extra time on exams at postsecondary institutions as a direct result of the ADA Amendments Act; and
• Test takers with ADHD and learning disabilities who could request and receive extra time on national exams as a direct result of the ADA Amendments Act.

Accommodating these students and test takers will mean additional costs to postsecondary institutions and national testing entities.  Initially, both types of entities will need to receive additional training to ensure compliance with the ADA Amendments Act revisions.  With a larger group of potential students and test takers now able to request accommodations for extra exam time, these entities will also incur costs of processing additional requests from members of this expanded group.  Finally, there will be costs associated with proctoring the additional exam time requested on each exam by those individuals who are now requesting and receiving the extra time as a direct result of the ADA Amendments Act.

As commenters suggested in response to the Initial RA, national testing entities may also incur costs when an exam extends to an additional day because of the extra time requested by the test taker.  Such costs could likely include “revision costs” such as staff time spent reprogramming some computer-based exams to extend across the new requested exam time.  For paper-based exams, national testing entities may also need to print split-book exams to give to test takers on each exam day.  That is, national testing entities will need to print some exams such that one set of questions are made available for one day of testing, and another set for the extra day of testing.  When a request for additional time on an exam pushes the completion of that exam into an additional day, there will also likely be additional costs associated with reserving a seat for the test taker on the extra day.  Unfortunately, the values of these costs remain unknown.  The discussion of the potential additional costs can be found in Section 4.1.3, which presents a range of potential costs derived from research and reasonable assumptions for data that was not available.

The rest of this chapter explains how costs are calculated in the primary analysis of this RA for postsecondary institutions and national testing entities.  The same three cost categories are calculated for both entities:

• One-time cost of training staff on relevant impact of ADA Amendments Act;
• Annual cost of processing additional accommodation requests for extra exam time made as a direct result of the ADA Amendments Act; and
• Annual cost of proctoring additional time on exams as a direct result of the ADA Amendments Act.

Because a similar methodology is used to calculate costs for both postsecondary institutions and national testing entities, the methodologies for both entities are presented together in the sections below.  Although the methodologies are similar, please note that the input values for postsecondary institutions and national testing entities will differ.  Intermediate calculations, such as the methodology used to calculate total eligible students and test takers likely to request and receive accommodations for extra exam time due to the ADA Amendments Act are also presented below.  The sources of the data used in these calculations are provided in Chapter 3.

2.1 Calculating the One-Time Training Cost

To comply with the revisions to the ADA Amendments Act, both postsecondary institutions and national testing entities will need to provide training to their staff members.  Figure 1 below illustrates how the one-time training cost is calculated.  This training cost was derived from research and discussions with subject matter experts, and the values and data used are found in Section 3.1.1 and Section 3.2.1.

Figure 1 : Overview of One-Time Training Cost for Postsecondary Institutions and National Testing Entities

As shown in the diagram, this one-time cost is calculated by multiplying the number of entities (either postsecondary institutions or national testing entities) by the one-time training cost. The data on the number of postsecondary institutions and national testing entities is found in Section 3.1.1 and Section 3.2.1.

2.2 Calculating the Number of Eligible Students and Test Takers

The cost of processing accommodation requests for extra exam time and for proctoring extra exam time depends on the number of postsecondary students or test takers who request and receive extra exam time as a direct result of the ADA Amendments Act.  The methodology used to calculate the number of eligible postsecondary students and national exam test takers is the same and is presented as one diagram in Figure 2 below.  The specific data values used and sources can be found in Section 3.1.2 and Section 3.2.2.

Figure 2 : Overview of Methodology for Calculating the Number of Individuals who will Request Accommodations for Extra Exam Time as a Direct Result of the ADA Amendments Act

For postsecondary institutions, the total number of students enrolled each year is multiplied by the percent of students who have ADHD or a learning disability to compute the total number of postsecondary students who have ADHD or a learning disability.  These numbers can be found in Section 3.1.2, along with data source information.  This number is then adjusted for those students who were requesting and receiving accommodations for extra exam time prior to the ADA Amendments Act.

The purpose of this analysis is to calculate the incremental change in the number of students requesting and receiving accommodations for extra exam time as a direct result of the ADA Amendments Act.  Prior to the ADA Amendments Act, a large percentage of postsecondary students with ADHD or learning disabilities were already receiving accommodations for extra exam time pursuant to the ADA.²²  Those students previously receiving these accommodations under the ADA prior to passage of the ADA Amendments Act are subtracted from the total.  The number of eligible students who could now request extra time on exams because of the revisions to the ADA Amendments Act is multiplied by the percentage of those students who actually would request this accommodation.  Some number of students who would be eligible to receive this testing accommodation may choose not to request such an accommodation.  Because this number is unknown, an assumption is made for a low, medium, and high percentage of eligible students not already receiving accommodations for extra exam time to request these accommodations.  This range of values is found in Table 13.

The methodology used to calculate the number of test takers who will request additional time on national examinations is very similar to that used for postsecondary students.  For national examinations, the number of test takers is multiplied by the percent of test takers who have ADHD or a learning disability to get the total number of test takers who have ADHD or a learning disability.  The percentage of test takers who would have previously requested and received extra exam time prior to the passage of the ADA Amendments Act is subtracted from the number of test takers.  Finally, this number is multiplied by the low, medium, and high estimate for the percentage of test takers who will request extra exam time as a direct result of the ADA Amendments Act.  These numbers and sources are presented in Section 3.2.2.

2.3 Calculating the Annual Cost of Processing Additional Accommodation Requests for Extra Exam Time

When a larger number of students and test takers are requesting extra time on exams as a direct result of the ADA Amendments Act, postsecondary institutions and national testing entities will have more requests to process.  To calculate the additional cost of processing these requests, the additional staff hours spent processing each request is multiplied by the number of additional students or test takers now submitting accommodation requests for extra exam time as a direct result of the ADA Amendments Act.  This quantity of hours is then multiplied by the average hourly wage of the staff members processing the accommodation requests to produce the annual cost of staff time to process additional requests.  These calculations are illustrated in Figure 3 below.  The specific data values used and sources can be found in Sections 3.1.3 and 3.2.3.

Figure 3 : Overview of Methodology for Calculating Annual Costs to Process Additional Accommodation Requests for Extra Exam Time as a Direct Result of the ADA Amendments Act

2.4 Calculating the Annual Cost of Proctoring Additional Time on Exams

More students and test takers receiving extra time on exams will require more proctors who will have to spend additional time overseeing exams.  The methodology for calculating this cost for postsecondary institutions and national testing entities is illustrated in Figure 4 below.  The specific data values used and sources can be found in Section 3.1.4 and Section 3.2.4.

Figure 4 : Overview of Methodology for Calculating Costs to Proctor Extra Exam Time as a Direct Result of the ADA Amendments Act

First, the average amount of extra time requested per exam is multiplied by the number of exams per student or test taker to produce the number of additional hours requested per student or test taker each year.

Because each proctor generally oversees the exams of more than one student or test taker at a time, not all additional hours requested will require a separate proctor. Thus, the average ratio of proctors to students or test takers is applied to the additional hours requested per student or test taker to obtain the adjusted additional hours requested per student or test taker.  Multiplying these hours by the hourly wage rate for test proctors gives the annual cost per student of proctoring additional time on exams.  These values are found in Section 4.1.1 and Section 4.1.2.

Finally, the total number of eligible students or test takers is multiplied by the annual proctoring cost per student or test taker to get the annual cost for proctoring additional time requested on exams as a direct result of the ADA Amendments Act.  This number is found in Section 3.1.4 and Section 3.2.4.

3. DATA

This chapter presents the data and assumptions used to calculate the costs of the final rule.  Specifically, the chapter explains the data and assumptions used to model the costs incurred by postsecondary institutions and national testing entities as a result of the final rule.

As explained in Chapter 1, the ADA Amendments Act is expected to have the largest impact on individuals with learning disabilities and ADHD who require testing accommodations from postsecondary institutions and national testing entities.  From interviews with postsecondary institutions and national testing entities,²³ and based on data from the Government Accountability Office (GAO) (see Table 3), it appears that the largest portion of testing accommodation requests are for extra exam time.  Thus, the RA focuses on the costs to postsecondary institutions and national testing entities for providing eligible students with extra exam time as a direct result of the ADA Amendments Act.

*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.  Some testing companies provided data on individuals who registered for the exam or applied for accommodations, not the number of individuals who took the exam, so these figures are estimates, and total does not sum to 100.

Source: GAO, Higher Education and Disability: Improved Federal Enforcement Needed to Better Protect Students' Rights to Testing Accommodations (GAO-12-40) (Nov. 29, 2011), available at http://www.gao.gov/products/GAO-12-40 (last visited May 17, 2016).

The Final RA estimates three types of costs for both postsecondary institutions and national testing entities.  These costs are listed below, by entity type:

• Postsecondary Institutions
• One-Time Training Costs;
• Annual Cost for Processing Additional Accommodation Requests for Extra Exam Time;²⁴ and
• Annual Cost for Additional Time Proctoring Exams.
• National Testing Entities
• One-Time Training Costs;
• Annual Cost for Processing Additional Accommodation Requests for Extra Exams Time;²⁵ and
• Annual Cost for Additional Time Proctoring Exams.

3.1 Postsecondary Institutions

The Department has determined that compliance with the ADA Amendments Act will lead to additional costs for postsecondary institutions.  In particular, some staff at postsecondary institutions will need to receive training to understand how compliance with the ADA Amendments Act will affect their institutions.  In addition, with more students now eligible to receive accommodations under the ADA Amendments Act, school staff may need to spend more time processing additional accommodation requests from those students.  Finally, as a result of these additional accommodation requests, test proctors will be required to spend more time overseeing exams for students who receive additional exam time as an accommodation.  The methodology used to calculate these costs is explained in detail in Chapter 2.  The sections below present the data and explain the assumptions used for these calculations.

3.1.1. One-Time Training Cost for Postsecondary Institutions

As explained in the Initial RA, postsecondary institutions will likely need to provide training to staff members regarding how to comply with the ADA Amendments Act.  Based on the public comments on the Initial RA, this Final RA has refined the one-time training cost, explained below and in Table 6, Table 7, and Table 8.

To calculate this one-time training cost, the total number of postsecondary institutions is multiplied by an estimated training cost per institution.  The number of postsecondary institutions is derived from the U.S. Department of Education’s National Center for Education Statistics, and is included in Table 4.

The estimated training cost per institution is based on a combination of interviews and research.  From these interviews and research, it appears that the process to receive additional training will be two-fold: internal and external training.  First, one postsecondary staff member will attend a one-day training conference to understand the implications of the ADA Amendments Act for the postsecondary institution.²⁶  This cost can be captured by the conference fee plus the value of staff time spent at the conference.²⁷  Next, this staff member will deliver an internal training to relevant staff at the school.  Based on this information, the RA estimates the internal training will last approximately two hours and be delivered to an average of eight staff members.  This cost can be captured by the value of all nine staff members present in the training—both the trainees and the trainer.  Table 5 below presents the data used for the staff wages to calculate the cost of training.

In total, the one-time training cost per institution is estimated to be approximately $1,371.  This calculation is illustrated in Table 6, Table 7, and Table 8.

*The Pre-conference session targeting the ADA is not a full-day session.  However, the data received from interviews indicates 8 hours is generally spent at the conference to receive training on the ADA, including any changes made by the ADA Amendments Act.  To take a conservative estimate, the full 8 hours of staff time is included in the total costs.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

3.1.2. Number of Postsecondary Students who are Eligible to Receive and Likely to Request Accommodations for Extra Exam Time as a Direct Result of the ADA Amendments Act

The total costs to postsecondary institutions will depend on the number of eligible students who will now request accommodations to receive extra exam time as a direct result of the ADA Amendments Act.

This RA estimates that the total number of eligible students who will now request these testing accommodations will range from 148,261 to 266,870 per year (see calculations in Table 26 and Table 27).  These estimates are based on several factors including:

• The total number of students attending postsecondary institutions;
• The percent of students who have a learning disability or ADHD;
• The percent of students with a learning disability or ADHD who were not receiving accommodations for extra exam time prior to passage of the ADA Amendments Act; and
• The percent of eligible students who previously were not receiving accommodations for extra exam time prior to passage of the ADA Amendments Act who are now likely to request and receive this accommodation as a direct result of the ADA Amendments Act.

These assumptions are explained further below.

3.1.2.1. Number of Postsecondary Students

To estimate the total number of students eligible to receive and likely to request accommodations for extra test time due to the ADA Amendments Act revisions, the first number required is the total number of students attending postsecondary institutions.  As shown in Table 9, the U.S. Department of Education estimates that in 2016, total enrollment in postsecondary institutions will be approximately 20,486,000.

Over time, the number of students who enroll in postsecondary institutions is expected to grow.  The expected growth rates are presented in Table 10 below.  These rates are based on the total student enrollment numbers projected by the U.S. Department of Education’s National Center for Education Statistics.

3.1.2.2. Percent of Postsecondary Students with Disabilities who have a Learning Disability or ADHD

As explained in Chapter 1, this RA only estimates the effects of the ADA Amendments Act on students with learning disabilities or ADHD who would now request and receive an accommodation of extra exam time as a direct result of the ADA Amendments Act.  Thus, the total number of postsecondary students is scaled down by the percent of students who have learning disabilities or ADHD.  This percentage is presented in Table 11, and the number of students who have learning disabilities or ADHD is calculated in Table 26.

Note: Due to rounding, totals may not equate exactly to the sum of the inputs provided in the table.

3.1.2.3. Percent of Postsecondary Students with Disabilities who could Request Accommodations for Extra Exam Time

Prior to the passage of the ADA Amendments Act, many postsecondary students with a learning disability or ADHD were already receiving accommodations of extra exam time under the ADA.  However, some students with these disabilities may have been denied testing accommodations or did not request the accommodations prior to passage of the ADA Amendments Act.  This RA only considers the costs of the incremental increase in the number of students with a learning disability or ADHD who are now requesting and receiving an accommodation for extra exam time as a direct result of the ADA Amendments Act’s expansion of coverage.

Given data available from the U.S. Department of Education and the John William Pope Center for Higher Education Policy, this RA assumes that 51.1 percent of students with a learning disability or ADHD were already requesting and receiving accommodations of extra exam time prior to passage of the ADA Amendments Act.  This means that 48.9 percent of students with a learning disability or ADHD were either denied eligibility to receive that accommodation or were not requesting the accommodation for whatever reason.  This percentage of students with disabilities who were not previously receiving additional exam time as an accommodation is applied to the total number of students with a learning disability or ADHD to get the number of eligible students who should now be eligible to receive an accommodation for extra exam time due to the revisions of the ADA Amendments Act.  This information is presented in Table 12, and the numbers used in the analysis are found in Table 26.

3.1.2.4. Percent of Eligible Students Previously Not Receiving Accommodations of Extra Exam Time Who Will Now Be Eligible to Receive and Likely Request These Accommodations Due to the ADA Amendments Act

Of the population of students with learning disabilities and ADHD who were not previously receiving accommodations for extra time on exams prior to passage of the ADA Amendments Act, it is likely that some of these students may still choose not to request this accommodation or will not be eligible to receive such an accommodation.  For the purpose of this RA, a low, medium, and high estimate is taken for the percent of eligible students who were previously not receiving this accommodation prior to passage of the ADA Amendments of Act who will now request and receive accommodations for extra time on an exam as a direct result of the ADA Amendments Act.  This low, medium, and high percentage is presented in Table 13, and Table 27 illustrates how these percentages are used in the calculation of total postsecondary students now eligible and likely to receive an accommodation for extra time on an exam.

The total number of postsecondary students who are eligible to receive and likely to request accommodations for extra exam time is calculated based on the data and assumptions presented in the previous subsections, and presented in Table 14 and Table 15 below.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Given the total number of eligible students with learning disabilities and ADHD who were already receiving accommodations for extra exam time prior to passage of the ADA Amendments Act, and the number of eligible students likely to request and receive extra exam time due to the ADA Amendments Act, the incremental increase in accommodations received as a direct result of the ADA Amendments Act is calculated and shown in Table 16.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Feedback from interviews with national testing entities and comments on the Initial RA suggests that accommodation requests for extra exam time will likely increase by 35 to 40 percent due to the ADA Amendments Act.  As shown in Table 16, this increase is smaller than the low value estimate in this RA.  This Final RA, however, retains the original range of assumptions used in the Initial RA with respect to how many individuals were previously not requesting accommodations for extra exam time (Table 13) and will now do so as a direct result of the ADA Amendments Act.  

3.1.3. Annual Cost to Postsecondary Institutions for Processing Additional Accommodation Requests for Extra Exam Time

The revisions to the ADA Amendments Act will mean that more students will be eligible to receive accommodations for extra exam time.  In the context of this Final RA, the Department is analyzing the increase in requests for accommodations for extra time on exams as a direct result of the ADA Amendments Act.  These additional requests will lead to an increase in time spent each year by postsecondary institution staff processing these accommodation requests.  To quantify this increase, the following variables are estimated:

• The number of additional accommodation requests for extra time on exams each postsecondary institution will now receive as a direct result of the ADA Amendments Act revisions;
• The staff time spent to process these accommodation requests; and
• The value of time for those staff members processing these accommodation requests.

The number of additional accommodation requests for extra time on exams is calculated based on the assumptions described in Section 3.1.2.  This value is estimated to range from 148,261 to 266,870 accommodation requests per year (one per student).  The numbers used in the analysis are found in Table 26 and Table 27.

The number of additional accommodation requests is multiplied by the number of hours required to process each request and by the value of each staff hour spent processing these requests.  These assumptions are presented in Table 17 and used in Table 28 to calculate the total annual costs to postsecondary institutions for processing additional accommodation requests for extra exam time.

3.1.4. Annual Cost to Postsecondary Institutions for Additional Time Proctoring Exams

When a student with a disability requires extra time on an exam, a proctor will have to spend additional time overseeing the exam.  To estimate this cost per student, the additional time requested per exam is multiplied by the number of exams per student, the proctor to student ratio, and the wage rate of the proctor.  Finally, this cost is multiplied by the total number of postsecondary students who are eligible and likely to request and receive an accommodation for extra exam time as a direct result of the ADA Amendments Act.  These calculations are illustrated in Table 26, Table 27, Table 29, and Table 30.

To estimate the average additional time requested per exam, the average length of an exam is multiplied by the percent of extra time generally requested by students with disabilities.  Based on data reported in a 2011 report by the U.S. Government Accountability Office (GAO),²⁹ the Final RA assumes that students with disabilities will request and receive an additional 75 percent of the original exam time.  The GAO report notes that 59 percent of takers received 50 percent more time, and 15 percent of test takers received 100 percent more time (double the time of other test takers).  Thus, based on the GAO report, the average amount of time received on a per test taker basis would be 60 percent more time.  The RA assumes an estimate of 75 percent more time on average instead of 60 percent for two reasons.  First, the Department’s experience suggests that prior to the ADA Amendments Act, test takers requesting double time, if approved, were often only approved for 50 percent more time, even though their documentation of their disability may have supported double time.  In light of the difficulties many persons with disabilities experienced receiving double time in response to their requests, many—despite their need for double time—opted in favor of requesting only 50 percent additional time in order to receive at least some extra time.  Second, available information suggests that many test takers requesting extra time typically do need more than 50 percent and are more likely now to request 100 percent.  And, since the ADA Amendments Act has become effective, it appears that more students and test takers are being granted the 100 percent more time that they request.  Thus, we believe an estimate of 75 percent more time more than covers the likely net additional time being granted as a direct result of the ADA Amendments Act.³⁰  Table 18 below includes the assumptions used to derive the average additional time requested per exam.  The numbers used in the analysis are found in Table 29 .

Next, the number of exams per student is estimated in Table 19.

When eligible students request extra time on exams, postsecondary institutions will often assign more than one student per proctor for this additional exam time, thus using the proctor’s time more efficiently.  Based on interviews with postsecondary institutions, this RA assumes that on average, the ratio of proctors to students will be approximately 0.11.

Finally, the average hourly wage of the test proctor is given in Table 21. 

3.2. National Testing Entities

As explained in Chapter 2, the methodology used to calculate the costs to national testing entities is very similar to that of postsecondary institutions.  These costs will depend on the number of eligible test takers who will now receive additional exam time as a result of the ADA Amendments Act, the ongoing costs to process these additional accommodation requests for extra exam time and for proctoring the additional time on each exam, and the one-time training cost for national testing entities to become familiar with the changes brought about by the ADA Amendments Act.  The detailed calculations for the costs to national testing entities are found in Section 4.1.2.

3.2.1. One-Time Training Cost for National Testing Entities

Similar to the postsecondary institutions, staff at the national testing entities will also require some additional training to understand what changes are needed to comply with the ADA Amendments Act.

To calculate the one-time training cost, the number of national testing entities is multiplied by the cost of training per institution.  The number of national testing entities is estimated by the U.S. Census Bureau, as shown in Table 22.  This number is used in Table 31 to calculate the one-time training cost for all national testing entities.

The cost of the training per national testing entity is assumed to be the same as for postsecondary institutions.  This cost is provided in Table 6 and Table 7.

3.2.2. Number of Test Takers who are Eligible to Receive and Likely to Request Accommodations for Extra Exam Time as a Direct Result of the ADA Amendments Act

Eligible national examination test takers include individuals with learning disabilities or ADHD who would not have received extra time to take a national exam prior to passage of the ADA Amendments Act.  The RA estimates that the number of test takers who are eligible to receive and likely to request accommodations for extra exam time as a direct result of the ADA Amendments Act will range from 75,633 to 136,139 per year.  This calculation is presented in Table 33.  To approximate the number of eligible test takers, the RA starts with the annual number of national examination test takers in the United States (see Table 23 below).

Note: Table is based on multiple sources.³⁴

Given the number of test takers per year, the number of eligible test takers who are likely to request extra exam time is estimated using a methodology and assumptions similar to those used to calculate the number of postsecondary students who were previously not receiving an accommodation of extra time on exams who are now eligible to receive and likely to request this accommodation as a direct result of the ADA Amendments Act (see Section 3.1.2).  That is, the number of test takers is multiplied by:

• The percent of test takers who have a learning disability or ADHD;
• The percent of test takers with a learning disability or ADHD who were not receiving extra exam time as an accommodation prior to passage of the ADA Amendments Act; and
• The percent of eligible test takers who previously were not receiving extra exam time as an accommodation prior to passage of the ADA Amendments Act who are now likely to request and receive this accommodation as a direct result of the ADA Amendments Act.

For these assumptions, the RA assumes the same values for national test takers as found for postsecondary students, since no specific data for national examinations was found and many national exams are designed for students or recent graduates.  The values of all three assumptions can be found in Table 11, Table 12, and Table 13.  The total number of test takers who are eligible to receive and likely to request accommodations for extra exam time is calculated in Table 32 and Table 33.

The percent increase in accommodation requests for extra exam time received by national testing entities as a direct result of the ADA Amendments Act is also the same as for postsecondary institutions.  This information can be found in Table 16.

3.2.3. Annual Cost to National Testing Entities for Processing Additional Accommodation Requests for Extra Exam Time

The cost to national testing entities for processing additional accommodation requests for extra exam time is estimated using the same assumptions presented in Section 3.1.3.  That is, the number of additional accommodation requests is multiplied by the number of hours required to process each request, and by the hourly value of time for the staff that process these requests.

Data on number of hours required to process each accommodation request for extra exam time, and the value of staff time to process each request are located in Table 17.  The only difference in the annual cost to national testing entities versus postsecondary institutions is the number of additional accommodation requests.  As illustrated in Table 33, the number of additional accommodation requests to national testing entities is estimated to range between 75,633 and 136,139 per year.  The detailed calculations used in the analysis are found in Table 34.

3.2.4. Annual Cost to National Testing Entities for Additional Time Proctoring Exams

Many national examinations are delivered through a testing center.  There is an associated per-seat cost for each test taker using the center, which could be used to account for the cost to national testing entities for test takers needing additional time on an exam.  However, this per-seat fee is confidential and was not provided for use in this RA.  As a proxy, the additional time spent by the proctor is used to calculate these potential costs, in the same manner that the potential costs were calculated under the analysis for postsecondary institutions.

To estimate the annual cost to national testing entities for additional proctoring time, the same methodology is used for calculating the cost to postsecondary institutions (see Figure 4), but different data and assumptions are used.  Specifically, the RA takes a conservative approach and assumes a ratio of one test taker to one proctor for national examinations, which results in larger total costs.³⁵ The assumptions used to calculate the average additional time requested per exam are presented in Table 24 below.

The average additional time requested per exam is then multiplied by the hourly wage rate of the test proctor.  The proctor hourly wage rate is shown in Table 21.

Finally, the cost per exam is multiplied by the total number of test takers who are eligible and likely to request accommodations for extra exam time as a direct result of the ADA Amendments Act, as explained in Section 3.2.2.  The data in Table 24 is used to calculate the annual cost to all national testing entities for additional proctoring time due to the ADA Amendments Act.  This calculation is illustrated in Table 35 and Table 36.

4. RESULTS

The total costs of implementing the revisions to the ADA Amendments Act are calculated and presented in this chapter.

The first section presents the total costs for the primary analysis of implementing the ADA Amendments Act revisions using the methodology, data, and assumptions presented in Chapters 2 and 3.

The second section builds on the costs estimated in the primary analysis, adding other potential costs that could arise in the event that test takers receive enough extra time on a national examination that the exam runs into an additional day.  Specifically, these additional costs could include test revision costs (reprogramming a select number of computer-based exams to run the length of new time allotted for the test taker, or printing new split-book materials for paper-based exams) and costs to reserve a seat for the test taker in a rented room or testing center for the additional day.  Because many elements of these additional potential costs are unknown, several assumptions are taken, and the costs are excluded from the primary analysis.

4.1. Final Results from the Primary Analysis

This section presents the calculations used to estimate the total costs resulting from the revisions to the title II and title III regulations to incorporate the changes made by the ADA Amendments Act.  Costs are first presented for postsecondary institutions and then for national testing entities.  The final subsection presents the total estimated costs from the ADA Amendments Act revisions based on the data and assumptions presented in Chapter 3.

4.1.1. Results for Postsecondary Institutions

As explained in Chapter 2, the total costs to postsecondary institutions will include three components:

• One-time cost of training staff on relevant impact of ADA Amendments Act;
• Annual cost of processing additional accommodation requests for extra exam time made as a direct result of the ADA Amendments Act; and
• Annual cost of proctoring additional time on exams as a direct result of the ADA Amendments Act.

As explained in Chapters 2 and 3, to calculate the annual costs to all postsecondary institutions for processing these additional accommodation requests and proctoring additional exam time as a direct result of the ADA Amendments Act, the potential number of students who could request and receive these accommodations needs to be calculated.  Calculations for the three costs listed above plus the number of students who are eligible to receive and likely to request accommodations for extra exam time as a direct result of the ADA Amendments Act are presented below.

The annual one-time training cost for all postsecondary institutions is presented in Table 25 below.  The methodology used to calculate this cost is explained further in Section 2.1, and the sources for the data used are provided in Section 3.1.1.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

The number of additional eligible students likely to request and receive extra time on exams at postsecondary institutions as a direct result of the ADA Amendments Act is calculated in Table 26 below.  The methodology used for this calculation is explained further in Section 2.2, and the sources for the data used are provided in Section 3.1.2.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Table 28 below presents the calculations of the annual cost to postsecondary institutions for processing new accommodation requests for extra exam time.  These requests are in addition to the ones currently received and processed by postsecondary institutions that are not being made as a direct result of the ADA Amendments Act.  Costs depend on the number of students who will now be eligible to request and receive an accommodation for extra time on an exam as a direct result of the ADA Amendments Act revisions.  The methodology used to calculate this cost is explained further in Section 2.3, and the sources for the data used are provided in Section 3.1.3.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Table 29 and Table 30 calculate the annual costs to postsecondary institutions for proctoring additional time on exams requested by eligible students as a direct result of the ADA Amendments Act.  The methodology used to calculate this cost is explained further in Section 2.4, and the sources for the data used are provided in Section 3.1.4.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

4.1.2. Results for National Testing Entities

Just as with postsecondary institutions, the costs to national testing entities from the revisions to the ADA Amendments Act will include three components:

• One-time cost of training staff on relevant impact of ADA Amendments Act;
• Annual cost of processing additional accommodation requests for extra exam time made as a direct result of the ADA Amendments Act; and
• Annual cost of proctoring additional time on exams as a direct result of the ADA Amendments Act.

The annual costs of processing additional accommodation requests and proctoring the extra exam time depends on the number of test takers who will request accommodations for extra exam time as a direct result of the ADA Amendments Act.  Calculations for the three costs listed above plus the number of test takers who are eligible to receive and likely to request accommodations of extra exam time as a direct result of the ADA Amendments Act are presented below.

The annual one-time training cost for all national testing entities is presented in Table 31 below.  The methodology used to calculate this cost is explained further in Section 2.1, and the sources for the data used are provided in Section 3.2.1.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

The number of test takers who are now eligible to receive and likely to request extra time on national exams is calculated in Table 32 and Table 33 below.  The methodology used to calculate this number is explained further in Section 2.2, Figure 2, and the sources for the data used are provided in Section 3.2.2.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

*For these assumptions, the RA assumes the same values for national test takers as found for postsecondary students, since no specific data for national examinations was found and many national exams are designed for students or recent graduates. 

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Table 34 illustrates the calculations of the annual cost to national testing entities for processing additional accommodation requests for extra exam time made as a direct result of the ADA Amendments Act.  The methodology used to calculate this cost is explained further in Section 2.3, and the sources for the data used are provided in Section 3.2.3.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Finally, Table 35 and Table 36 calculate the annual costs to national testing entities for allowing test takers to receive additional time on exams.  Again, the cost here may be calculated as the opportunity cost of the seat occupied by the test taker for the additional hours of testing.  However, because the seat cost per test taker was not available for this RA analysis, the additional time spent by a test proctor to oversee the exam is used as a proxy for the cost.  The methodology used to calculate this cost is explained further in Section 2.4, and the sources for the data used are provided in Section 3.2.4.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

4.1.3. Total Costs of ADA Amendments Act Revisions for the Primary Analysis

Based on the calculations provided in subsections 4.1.1 and 4.1.2, total costs to society for implementing the ADA Amendments Act revisions into the title II and title III regulations will range between $31.4 million and $47.1 million in the first year.  The first year of costs will be higher than all subsequent years because the first year includes the one-time cost of training.  Note that even the high-end of this first-year cost range is well below the $100 million mark that signifies an “economically significant” regulation.  The breakdown of total costs by entity is provided in Table 37.

Note: Due to rounding, totals may not equate exactly to the sum of the inputs provided in the table.

Taking these costs over the next 10 years and discounting to present value terms at a rate of 7 percent, the total costs of implementing the ADA Amendments Act revisions are approximately $214.3 million over 10 years, as shown in Table 38 below.

4.2. Potential Additional Costs to National Testing Entities

The ADA Amendments Act revisions will allow eligible individuals with disabilities to receive additional time on exams, both for course-work exams at postsecondary institutions and standardized national examinations.  Some national examinations are long and can last up to eight hours per test.  Thus, when test takers request additional time on these longer exams, such requests will inevitably push the exam into an additional day.

As commenters pointed out in response to the Initial RA, there are costs associated with providing exams on an additional day.  While there is no data to predict which exams will extend to an additional day, especially given that specific accommodations are determined individually, this Final RA assumes that exams that normally would take six hours or more to administer and be scheduled for one day may require an additional day of testing if the test taker seeks more time as an accommodation.  To quantify the total costs of providing an additional day of testing for those individuals who would not previously have received this additional time, prior to the passage of the ADA Amendments Act, the following two costs are quantified:

• Exam Revision Costs: While it appears that many national testing entities do not revise the content of exams that span an additional day, the exam format and materials can be affected by such an extension.  For instance, computer-based exams are programmed to span a certain amount of time, allowing for timed break periods throughout.  When more time is provided to take the exam, the exam must be re-programmed to span the new amount of time, with planned breaks for the test taker.  For paper-based exams, test booklets are often reprinted to allow one set of questions for one day of testing, and another set for the extra day of testing.  This form of printing prevents test takers from going home and looking up the answers for the next set of questions.

• Room Rental Cost: Exams are delivered in different settings depending on the type of national exam.  Some exams are delivered at testing centers where different types of exams are administered at once in the same room.  In this case, the cost of an extra day of testing could be captured by the seat cost per test taker.  Other exams are delivered to test takers exclusively taking that exam, and those exams are often administered in rooms rented out at a university, hotel, or other building.  This cost could be captured by the room rental cost.  This RA takes a conservative approach, using the room rental cost to approximate the cost of delivering an exam over an additional day, as this is the larger of the two costs.

Figure 5 below illustrates the methodology used to calculate these two cost components.

The following subsections illustrate the data, assumptions, and calculations used to estimate the total cost to national testing entities for providing eligible test takers an additional day of testing.  The subsections are divided into exam revision costs and room rental costs.

4.2.1. Exam Revision Costs

To estimate the number of exams that will require revision costs, the number of national exams that currently span six hours or more per testing day are estimated.  Here, the number of exams refers to the number of exam types, not the number of exams distributed to test takers.

From interviews with national testing entities, it appears that not all entities will make revisions to exams provided on an additional day of testing.  Because the percentage of testing entities that incur revision costs is unknown, a low, medium, and high percentage is taken as an assumption. Table 39 estimates the number of exams that will incur revision costs from providing an additional day of testing.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

Because the cost to revise these exams is unknown, an assumption is taken.  See Table 40.

*Test revision includes reprogramming the length of a timed computer-based exam, printing split book materials for a multi-day paper-based exam, or other costs of revising materials necessary to extend an exam to an additional day.  Also note that the number of exams above refers to the number of unique exams given in the United States, not the number of individuals who take these exams.

Given these data and assumptions, the annual cost of exam revisions is calculated in Table 41. 

4.2.2. Room Rental Costs

To calculate the cost of renting additional rooms for the extra testing days, the number of test takers receiving extra time as a direct result of the ADA Amendments Act must be estimated.  Table 42 provides the average number of test takers each year who sign up to take national exams that span six hours or more per test day.

Given the total number of test takers for exams six hours or longer, this number is scaled down to estimate only the number of test takers who are eligible to receive and likely to request accommodations for extra exam time as a direct result of the ADA Amendments Act.  The same data and assumptions are used as explained in Section 3.2.2.

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

*For these assumptions, the RA assumes the same values for national test takers as found for postsecondary students, since no specific data for national examinations was found and many national exams are designed for students or recent graduates. 

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

To estimate the cost incurred by national testing entities for providing these test takers with an additional day of testing, the number of test takers per room as well as the room rental fee must be estimated.

Based on interviews with national testing entities, there are on average approximately two test takers that will share a room rented for the additional day of testing.  This is shown in Table 45.

The cost of renting a room for test takers varies, but on average the cost is approximately $497 per exam day, shown in Table 46.

Given these data and assumptions, the annual cost of renting a room for the additional testing days is calculated in Table 47. 

Note: Due to rounding, totals may not equate exactly to the product of the inputs provided in the table.

4.2.3. Total Costs of ADA Amendments Act Revisions Including Potential Additional Costs to National Testing Entities

Based on the calculations provided in subsections 4.2.1 and 4.2.2, the total additional costs of providing an extra testing day to eligible test takers will likely range between $2.7 and $4.8 million per year.  Table 48 adds this into the total costs in the first year to approximate the range of total costs to society from implementing the ADA Amendments Act revisions.  

Note: Due to rounding, totals may not equate exactly to the sum of the inputs provided in the table.

5. BENEFITS DISCUSSION

The Department believes that the enactment of the ADA Amendments Act benefits millions of Americans, and the benefits to those individuals are non-quantifiable 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 accommodations in testing from postsecondary institutions and national 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 148,261 to 266,870 postsecondary students will take advantage of accommodations for extra exam time that they otherwise would not have received but for this rule.  Over 10 years, approximately 1.6 million to 2.8 million students will benefit.  An additional 802,196 to 1.4 million national exam test takers would benefit over that same 10 years (assuming that people take an exam one time only). 

Some number of these individuals could be expected to earn a degree or license that they otherwise would not have as a result of the testing accommodations they are now eligible to receive as a direct result of the ADA Amendments Act.  The Department was unable to find robust data to estimate the number of students who would receive a bachelor’s degree or licenses after this final rule goes into effect that would not otherwise have received one.  However, extensive research has shown notably higher earnings for those with college degrees over those who do not have degrees.  Estimates of this lifetime earnings vary, with some studies estimating an earnings differential ranging from approximately $300,000 to $1 million.³⁷  In addition, some number of students may be able to earn a degree in a higher paying field than they otherwise could, and yet other students would get the same degree, but perhaps finish their studies faster or more successfully (i.e., higher grades) than otherwise would be the case.  All of these outcomes 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 this rule, were denied the opportunity for equal access to an education or to become licensed in their chosen professions 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 reduced stress and 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.

Additional benefits to society 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 support from 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 of individuals with disabilities, may also benefit from reduced 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 ADHD 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, or 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 derive 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 value can also be described as the value that people both with and without disabilities derive from the guarantees of equal protection and nondiscrimination.  In other words, people value living in a country that guarantees the rights of persons with disabilities, whether or not they themselves are directly or indirectly affected by disabilities.  There can be a number of 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 reasons include: bequest motives and concern for relatives or friends who require accessibility.  People in society value equity, fairness, and human dignity, even if they cannot express these values in terms of money.  These are the exact values that agencies are directed to consider in Executive Order 13563.