This is the accessible text file for GAO report number GAO-12-40 
entitled 'Higher Education and Disability: Improved Federal 
Enforcement Needed to Better Protect Students' Rights to Testing 
Accommodations' which was released on December 29, 2011. 

This text file was formatted by the U.S. Government Accountability 
Office (GAO) to be accessible to users with visual impairments, as 
part of a longer term project to improve GAO products' accessibility. 
Every attempt has been made to maintain the structural and data 
integrity of the original printed product. Accessibility features, 
such as text descriptions of tables, consecutively numbered footnotes 
placed at the end of the file, and the text of agency comment letters, 
are provided but may not exactly duplicate the presentation or format 
of the printed version. The portable document format (PDF) file is an 
exact electronic replica of the printed version. We welcome your 
feedback. Please E-mail your comments regarding the contents or 
accessibility features of this document to Webmaster@gao.gov. 

This is a work of the U.S. government and is not subject to copyright 
protection in the United States. It may be reproduced and distributed 
in its entirety without further permission from GAO. Because this work 
may contain copyrighted images or other material, permission from the 
copyright holder may be necessary if you wish to reproduce this 
material separately. 

United States Government Accountability Office: 
GAO: 

Report to Congressional Requesters: 

November 2011: 

Higher Education and Disability: 

Improved Federal Enforcement Needed to Better Protect Students' Rights 
to Testing Accommodations: 

GAO-12-40: 

GAO Highlights: 

Highlights of GAO-12-40, a report to congressional requesters. 

Why GAO Did This Study: 

Standardized tests are often required to gain admission into 
postsecondary schools or to obtain professional certifications. 
Federal disability laws, such as the Americans with Disabilities Act 
(ADA) require entities that administer these tests to provide 
accommodations, such as extended time or changes in test format, to 
students with disabilities. GAO examined (1) the types of 
accommodations individuals apply for and receive and how schools 
assist them, (2) factors testing companies consider when making 
decisions about requests for accommodations, (3) challenges 
individuals and testing companies experience in receiving and granting 
accommodations, and (4) how federal agencies enforce compliance with 
relevant disability laws and regulations. To conduct this work, GAO 
interviewed disability experts; individuals with disabilities; 
officials from high schools, postsecondary schools, testing companies; 
and officials from the Departments of Justice (Justice), Education, 
and Health and Human Services (HHS). GAO also reviewed testing company 
policies and data, federal complaint and case data for selected 
testing companies, and relevant laws and regulations. 

What GAO Found: 

Among accommodations requested and granted in the most recent testing 
year, approximately three-quarters were for extra time, and about half 
were for applicants with learning disabilities. High school and 
postsecondary school officials GAO interviewed reported advising 
students about which accommodations to request and providing 
documentation to testing companies, such as a student’s accommodations 
history. 

Testing companies included in GAO’s study reported that they grant 
accommodations based on their assessment of an applicant’s eligibility 
under the ADA and whether accommodation requests are appropriate for 
their tests. Testing companies look for evidence of the functional 
limitations that prevent the applicant from taking the exam under 
standard conditions. They also consider what accommodations are 
appropriate for their tests and may grant accommodations that were 
different than those requested. For example, one testing company 
official told GAO that applicants with attention deficit/hyperactivity 
disorder all might request extra time, but may be granted different 
accommodations given their limitations––extra time for an applicant 
unable to maintain focus; extra breaks for an applicant unable to sit 
still for an extended time period; a separate room for an easily 
distracted applicant. 

Documenting need and determining appropriate accommodations can 
present challenges to students and testing companies. Some applicants 
GAO interviewed found testing companies’ documentation requirements 
difficult to understand and unreasonable. Most applicants GAO spoke 
with said they sought accommodations that they were accustomed to 
using, and some found it frustrating that the testing company would 
not provide the same accommodations for the test. Testing companies 
reported challenges with ensuring fairness to all test takers and 
maintaining the reliability of their tests when making accommodations 
decisions. Testing company officials said that reviewing requests that 
contain limited information can make it difficult to make an informed 
decision. Some testing company officials also expressed concern with 
being required to provide accommodations that best ensure an 
applicant’s test results reflect the applicant’s aptitude rather than 
providing what they consider to be reasonable accommodations. 

Federal enforcement of laws and regulations governing testing 
accommodations is largely complaint-driven and involves multiple 
agencies. While Justice has overall responsibility for enforcing 
compliance under the ADA, Education and HHS have enforcement 
responsibilities under the Rehabilitation Act for testing companies 
that receive federal financial assistance from them. Education and HHS 
officials said that they investigate each eligible complaint. Justice 
officials said they review each complaint at in-take, but they do not 
make a determination on every complaint because of the large volume of 
complaints it receives. Justice has clarified ADA requirements for 
testing accommodations primarily by revising its regulations, but it 
lacks a strategic approach to targeting enforcement. Specifically, 
Justice has not fully utilized complaint data—-either its own or that 
of other agencies—-to inform its efforts. Justice officials said that 
they reviewed complaints on a case-by-case basis but did not conduct 
systematic searches of their data to inform their overall approach to 
enforcement. Additionally, Justice has not initiated compliance 
reviews of testing companies, and its technical assistance on this 
subject has been limited. 

What GAO Recommends: 

GAO recommends that the Department of Justice take steps to develop a 
strategic approach to enforcement such as by analyzing its data and 
updating its technical assistance manual. Justice agreed with GAO’s 
recommendation. 

View [hyperlink, http://www.gao.gov/products/GAO-12-40]. For more 
information, contact George Scott at (202) 512-7215 or scottg@gao.gov. 

[End of section] 

Contents: 

Letter: 

Background: 

Additional Time Was the Most Frequently Requested and Granted 
Accommodation: 

Testing Companies Determine Whether Applicants Qualify for 
Accommodations under the ADA and Whether Requests Are Appropriate: 

Documenting Need and Determining Appropriate Accommodations Can 
Present Challenges to Applicants and Testing Companies: 

Federal Enforcement Is Largely Complaint-Driven, and Justice Lacks a 
Strategic Approach to Ensure Testing Company Compliance: 

Conclusions: 

Recommendation for Executive Action: 

Agency Comments and Our Evaluation: 

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: Comments from the Department of Justice: 

Appendix III: Comments from the Department of Education: 

Appendix IV: GAO Contact and Staff Acknowledgments: 

Tables: 

Table 1: Tests Included in Our Study: 

Table 2: Schools Interviewed: 

Figures: 

Figure 1: Percentage of Accommodations Requested and Granted by 
Accommodation Type in Most Recent Testing Year for Selected Testing 
Companies: 

Figure 2: Percentage of Accommodations Requested and Granted by 
Disability Type in the Most Recent Testing Year for Selected Testing 
Companies: 

Abbreviations: 

AAMC: Association of American Medical Colleges: 

ADA: Americans with Disabilities Act of 1990: 

ADAAA: ADA Amendments Act of 2008: 

ADD: attention deficit disorder: 

ADHD: attention deficit/hyperactivity disorder: 

Education: Department of Education: 

EEOC: Equal Employment Opportunity Commission: 

ETS: Educational Testing Service: 

FSMB: Federation of State Medical Boards: 

GMAC: Graduate Management Admission Council: 

GMAT: Graduate Management Admission Test: 

HHS: Department of Health and Human Services: 

IDEA: Individuals with Disabilities Education Act: 

IPEDS: Integrated Postsecondary Education Data System: 

IEP: Individualized Education Program: 

Justice: Department of Justice: 

LSAC: Law School Admission Council: 

LSAT: Law School Admission Test: 

MCAT: Medical College Admission Test: 

MPRE: Multistate Professional Responsibility Examination: 

NABP: National Association of Boards of Pharmacy: 

NAPLEX: North American Pharmacist Licensure Examination: 

NBME: National Board of Medical Examiners: 

NCBE: National Conference of Bar Examiners: 

PCAT: Pharmacy College Admission Test: 

Rehabilitation Act: Section 504 of the Rehabilitation Act of 1973: 

USMLE: United States Medical Licensing Examination: 

[End of section] 

United States Government Accountability Office: 
Washington, DC 20548: 

November 29, 2011: 

The Honorable George Miller: 
Ranking Member: 
Committee on Education and the Workforce: 
House of Representatives: 

The Honorable Pete Stark: 
Ranking Member: 
Subcommittee on Health: 
Committee on Ways and Means: 
House of Representatives: 

The Honorable Cathy McMorris Rodgers: 
House of Representatives: 

Each year, millions of people take standardized tests to gain 
admission to postsecondary education or to receive a professional 
license for certain professions. These tests, which are typically 
administered under uniform conditions and time limits, are designed to 
predict future academic success or measure a person's knowledge in the 
area tested. While standardization is intended to ensure comparability 
of test scores across examinees, it may make it challenging for some 
individuals with disabilities to accurately demonstrate their ability. 
Federal disability laws, such as the Americans with Disabilities Act 
of 1990[Footnote 1] (ADA), protect individuals with disabilities from 
discrimination and a specific provision of that act requires private 
companies offering standardized tests to provide accommodations, such 
as extended time or extra breaks, in order to make tests accessible to 
individuals with disabilities. However, disability advocates and 
experts have raised questions about how testing companies make 
decisions about accommodations and whether or not they are complying 
with federal disability laws and regulations. Similarly, testing 
companies have raised questions about protecting the integrity of 
their tests by ensuring that accommodations are given only to those 
individuals who require them. Given the importance of testing 
accommodations in helping students with disabilities access higher 
education and professional licensure, we examined: (1) what types of 
accommodations individuals apply for and receive and how schools 
assist them, (2) what factors testing companies consider when making 
decisions about requests for testing accommodations, (3) what 
challenges applicants and testing companies experience in receiving 
and granting testing accommodations, and (4) how federal agencies 
enforce compliance with relevant federal disability laws and 
regulations. 

In conducting this work, we focused our review on a nongeneralizeable 
sample of 11 tests offered by 10 testing companies for admission into 
undergraduate, graduate, and professional programs and to obtain 
professional certification. We included the 2 most common 
undergraduate admissions tests and, for the graduate and professional 
level, we included 5 admissions and 4 professional certification tests 
used in the fields of study with the largest numbers of graduates and 
the top three fields of study in which students with disabilities are 
enrolled.[Footnote 2] We interviewed disability experts, 
representatives from a nongeneralizable sample of 8 high schools and 
13 postsecondary schools, and eight individuals with disabilities who 
were referred to us by those experts and school officials and were 
applicants for accommodations on one or more tests included in our 
study. We selected schools based on characteristics such as size, 
geographic diversity, public or private funding and, in the case of 
postsecondary schools, academic programs. We also conducted interviews 
with 7 testing companies and reviewed written responses to our 
questions from 2 companies that declined our requests for an 
interview. One company declined to participate in our study. We also 
reviewed data provided by testing companies on the types of 
accommodations requested and granted. Based on their responses to 
questions about data reliability, we believe the information they 
provided is sufficiently reliable for the purposes of this report. We 
reviewed policies and procedures for requesting accommodations found 
on testing companies' Web sites. However, we did not evaluate whether 
these policies and procedures, or the procedures described to us in 
interviews, were in compliance with relevant laws or regulations. 
Testing companies that participated in our study reviewed draft 
statements in this report, and their comments were incorporated where 
appropriate. We reviewed relevant federal laws and regulations; 
reviewed selected court cases regarding testing accommodations; 
interviewed officials from the Departments of Justice (Justice), 
Education (Education), and Health and Human Services (HHS); and 
reviewed available information on complaints each agency received from 
fiscal years 2007 through 2010 regarding the 10 testing companies 
included in our study. However due to data limitations described in 
the report, we cannot generalize the results of our file review. A 
more detailed explanation of our objectives, scope, and methodology 
can be found in appendix I. 

We conducted this performance audit from October 2010 to November 2011 
in accordance with generally accepted government auditing standards. 
Those standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe 
that the evidence obtained provides a reasonable basis for our 
findings and conclusions based on our audit objectives. 

Background: 

In determining whether to provide testing accommodations, testing 
companies are required to adhere to Section 309 of the ADA and, in 
some circumstances, Section 504 of the Rehabilitation Act of 1973, as 
amended[Footnote 3] (the Rehabilitation Act), as well as regulations 
implementing those laws. Section 309 of the ADA provides that "any 
person that offers examinations or courses related to applications, 
licensing, certification, or credentialing for secondary or post-
secondary education, professional, or trade purposes" must offer them 
"in a place and manner accessible to persons with disabilities or 
offer alternative accessible arrangements…[.]"[Footnote 4] Section 504 
prohibits discrimination against individuals with disabilities by 
entities receiving federal financial assistance.[Footnote 5] Persons 
requesting accommodations are entitled to them only if they have a 
disability as defined by those statutes. Both the ADA and the 
Rehabilitation Act define individuals with disabilities as those who 
have a physical or mental impairment that substantially limits one or 
more major life activities, have a record of such impairment, or are 
regarded as having such an impairment.[Footnote 6] Justice is charged 
with enforcing testing company compliance within Section 309 of the 
ADA, and the Departments of Education and HHS are responsible for 
enforcing compliance with Section 504 of the Rehabilitation Act for 
any testing companies that receive federal financial assistance from 
them.[Footnote 7] 

In 2008, concerned that judicial interpretations had limited the scope 
of protection it had intended under the ADA, Congress enacted the ADA 
Amendments Act of 2008 (ADAAA),[Footnote 8] rejecting several Supreme 
Court interpretations that had narrowed the definition of an 
individual with disabilities. The ADA Amendments Act set out 
guidelines for determining who qualifies as an individual with 
disabilities and provided a nonexhaustive list of "major life 
activities," which includes learning, reading, concentrating, and 
thinking. In the ADAAA, Congress also stated that it found the U.S. 
Equal Employment Opportunity Commission (EEOC) regulation regarding 
the definition of an individual with a disability inconsistent with 
congressional intent and directed the EEOC to revise that regulation. 
[Footnote 9] On March 25, 2011, the EEOC issued final regulations, 
implementing Title I of the ADAAA.[Footnote 10] Those regulations, 
which went into effect on May 24, 2011, provide that the term 
"substantially limits" should be construed broadly in favor of 
expansive coverage to the maximum extent permitted by the ADA and is 
not meant to be a demanding standard; that when determining if an 
individual is substantially limited in performing a major life 
activity, the determination of disability should not require extensive 
analysis and should be compared with that of "most people in the 
general population;" and that the comparison to most people will not 
usually require scientific, medical, or statistical analysis.[Footnote 
11] The regulations provide that, in applying these principles, it may 
be useful to consider, as compared with most people in the general 
population, the condition under which the individual performs the 
major life activity; the manner in which the individual performs the 
major life activity; and/or the duration of time it takes the 
individual to perform the major life activity."[Footnote 12] 

In 1991, Justice issued regulations implementing Section 309 which, 
among other things, provide that any private entity offering an 
examination must assure that "[t]he examination is selected and 
administered so as to best ensure that, when the examination is 
administered to an individual with a disability that impairs sensory, 
manual, or speaking skill, the examination results accurately reflect 
the individual's aptitude, achievement level or whatever other factor 
the examination purports to measure, rather than reflecting the 
individual's impaired sensory, manual or speaking skills…..."[Footnote 
13] Under the regulations, such entities are also required to provide 
individuals with disabilities appropriate auxiliary aids unless the 
entity can demonstrate that a particular auxiliary aid would 
fundamentally alter what the examination is intended to measure or 
would result in an undue burden.[Footnote 14] On September 15, 2010, 
Justice issued a final rule adding three new provisions to its 
regulations, stating that, through its enforcement efforts, it had 
addressed concerns that requests by testing entities for documentation 
regarding the existence of an individual's disability and need for 
accommodations were often inappropriate and burdensome. The first new 
provision requires that documentation requested by a testing entity 
must be reasonable and limited to the need for the accommodation. The 
second new provision states that a testing entity should give 
considerable weight to documentation of past accommodations received 
in similar testing situations, as well as those provided under an 
Individualized Education Program (IEP) provided under the Individuals 
with Disabilities Education Act (IDEA), or a plan providing services 
pursuant to Section 504 of the Rehabilitation Act (a Section 504 
plan). The third new provision provides that a testing entity must 
respond to requests for accommodation in a timely manner.[Footnote 15] 

Since the ADAAA and EEOC regulations have broadened the definition of 
an individual with disabilities, it is possible that the focus for 
determining eligibility for testing accommodations will shift from 
determining whether a person requesting testing accommodations is an 
individual with a disability for purposes of the ADA to what 
accommodations must be provided to meet the requirements of Section 
309 and its implementing regulations. Several recent cases that 
address the type of accommodations that must be provided under Section 
309 will likely impact the latter determination. In Enyart v. National 
Conference of Bar Examiners, the U.S. Court of Appeals for the Ninth 
Circuit rejected the argument that Section 309 requires only 
"reasonable accommodations" and adopted the higher "best ensure" 
standard for determining accessibility that Justice included in its 
regulations.[Footnote 16] The court found that the requirement in 
Section 309, that testing entities offer examinations in a manner 
accessible to individuals with disabilities, was ambiguous. As a 
result, it deferred to the requirement in Justice's regulations 
providing that testing entities must offer examinations "so as to best 
ensure" that the exam results accurately reflect the test takers 
aptitude rather than disabilities. Applying that standard, the court 
found that NCBE was required to provide Enyart, a blind law school 
graduate, with the accommodations she had requested rather than the 
ones offered by NCBE based on evidence that her requested 
accommodations were necessary to make the test accessible to her given 
her specific impairment and the specific nature of the exam.[Footnote 
17] 

Additional Time Was the Most Frequently Requested and Granted 
Accommodation: 

Students Most Often Requested and Received Additional Time According 
to Testing Company Data: 

Extra time represented approximately three-quarters of all 
accommodations requested and granted in the most recent testing year, 
with 50 percent extra time representing the majority of this category 
(see figure 1).[Footnote 18] According to researchers, one explanation 
for the high incidence of this accommodation is that students with the 
most commonly reported disabilities--learning disabilities, such as 
dyslexia; attention deficit disorder (ADD); or attention deficit/ 
hyperactivity disorder (ADHD)--may need extra time to compensate for 
slower processing or reading speeds. In addition, extra time may be 
needed to support other accommodations, such as having a person read 
the test to a test taker or write down the responses. 

Figure 1: Percentage of Accommodations Requested and Granted by 
Accommodation Type in Most Recent Testing Year for Selected Testing 
Companies: 

[Refer to PDF for image: 2 pie-charts] 

Accommodations requested by accommodation type: 
50% extra time: 59%; 
More than 50% extra time: 15%; 
Extra/extended breaks: 5%; 
Alternate text format: 3%; 
Auditory or visual assistance: 3%; 
Adjustments in testing environment: 10%; 
Other: 4%. 

Accommodations granted by accommodation type: 
50% extra time: 57%; 
More than 50% extra time: 17%; 
Extra/extended breaks: 4%; 
Alternate text format: 7%; 
Auditory or visual assistance: 7%; 
Adjustments in testing environment: 3%. 
Other: 

Source: GAO analysis of data provided by testing companies. 

Notes: 

Testing companies provided data on the most recent testing year for 
which they had data; however, this time period may vary across testing 
companies. Some accommodations may have been requested in a different 
year from when they were granted. Additionally, data on accommodations 
requested and granted include different tests. Data on accommodations 
requested by accommodation type pertain to the following tests: GRE, 
MCAT, MPRE, NAPLEX, PRAXIS, SAT, and USMLE. Data on accommodations 
granted by accommodation type pertain to the following tests: ACT, 
GMAT, GRE, MCAT, MPRE, NAPLEX, PRAXIS, SAT, and USMLE. Due to these 
limitations, the percentages do not necessarily represent a one-to-one 
comparison between accommodations requested and those that were 
granted. 

The "Other" category includes accommodations such as being allowed to 
bring in a snack or using various types of assistive technology to 
take the test, such as computer software to magnify text or convert it 
into spoken language. 

[End of figure] 

The remaining quarter of accommodations that students requested and 
testing companies granted in the most recent testing year include 
changes in the testing environment, extra breaks, alternate test 
formats, and auditory or visual assistance. Changes to the testing 
environment might involve preferential seating or testing in a 
separate room to minimize distractions. The accommodation of extra 
breaks could be an extension of the scheduled break time between test 
sections or breaks when needed, depending on students' individual 
circumstances. For example, students might need more than the allotted 
break time if they have a medical condition that requires them to test 
their blood sugar or use the restroom. Requests for auditory or visual 
assistance might entail having a "reader" to read the test aloud, 
whereas alternate test formats include large type, Braille, or audio 
versions. Additionally, students requested some other types of 
accommodations, including being allowed to have snacks as needed or 
using various types of assistive technology to take the test, such as 
computer software to magnify text or convert it into spoken language. 
For example, one blind individual we interviewed described using 
Braille to take tests and screen reading software to complete 
assignments when she was an undergraduate student. When it came time 
to request accommodations for a graduate school admissions test, she 
requested use of screen reading software because it helps her read 
long passages more quickly than with Braille alone. However, she also 
requested use of Braille because it allows her to more closely study a 
passage she did not initially comprehend. Students and disability 
experts we spoke with also told us that students may need multiple 
accommodations to help them overcome their disabilities, and that 
their requests reflect the accommodations that have previously worked 
for them. For example, in addition to using screen reading software 
and Braille, the blind student mentioned above was also allowed extra 
time, use of a computer, breaks in between test sections, a scribe, 
and a few other accommodations. 

An estimated 179,000 individuals with disabilities--approximately 2 
percent--of about 7.7 million test takers took an exam with an 
accommodation in the most recent testing year, according to data 
provided to us.[Footnote 19] Approximately half of all accommodations 
requested and granted were for applicants with learning disabilities, 
and one-quarter was for those with ADD or ADHD. The remainder of 
accommodations requested and granted was for applicants with physical 
or sensory disabilities, such as an orthopedic or vision impairment; 
or psychiatric disabilities, such as depression; and other 
disabilities, such as diabetes and autism spectrum disorders (see 
figure 2).[Footnote 20] 

Figure 2: Percentage of Accommodations Requested and Granted by 
Disability Type in the Most Recent Testing Year for Selected Testing 
Companies: 

[Refer to PDF for image: 2 pie-charts] 

Accommodations requested by accommodation type: 
Learning disability: 46%; 
ADD/ADHD: 26%; 
Other: 14%; 
Physical/sensory: 10%; 
Psychiatric: 4%. 

Accommodations granted by accommodation type: 
Learning disability: 49%; 
ADD/ADHD: 25%; 
Other: 12%; 
Physical/sensory: 10%; 
Psychiatric: 4%. 

Source: GAO analysis of data provided by testing companies. 

Notes: 

Testing companies provided data on the most recent testing year for 
which they had data; however, this time period may vary across testing 
companies. Some accommodations may have been requested in a different 
year from when they were granted. Additionally, data on accommodations 
requested and granted include different tests. Data on accommodations 
requested by disability pertain to the following tests: GRE, MPRE, 
NAPLEX, PRAXIS, and SAT. Data on accommodations granted by disability 
pertain to the following tests: GMAT, GRE, MPRE, NAPLEX, PRAXIS, and 
SAT. Due to these limitations, the percentages do not necessarily 
represent a one-to-one comparison between accommodations requested and 
those that were granted. 

The "Other" category includes disabilities that could not be included 
in any existing category, such as diabetes, autism-spectrum disorders, 
and Tourette's syndrome, when GAO aggregated testing company data. 

[End of figure] 

High Schools and Postsecondary Schools Assist Students Who Apply for 
Testing Accommodations in a Variety of Ways: 

Text box: 
High School Services for Students with Disabilities; Under the 
Individuals with Disabilities Education Act and Section 504 of the 
Rehabilitation Act, children with disabilities must be identified, 
located and evaluated and, as appropriate, provided with special 
education and related services through an IEP or 504 plan. Pursuant to 
these requirements, schools maintain records that describe the 
student's disability and accommodations history, which can include the 
disability diagnosis, psychoeducational test results, and relevant 
developmental and educational history. This type of documentation is 
key to helping students obtain accommodations on admissions tests and 
in postsecondary school. End of text box] 

High schools help students apply for accommodations on undergraduate 
admissions tests in several ways. According to disability experts and 
a few high schools we interviewed, school counselors alert students to 
the need to apply for accommodations and advise them about what to 
request. Additionally, school officials play an important role in 
helping students with the application. For certain types of requests, 
school officials can submit the application on the student's behalf, 
requiring minimal student involvement.[Footnote 21] One testing 
company reported that 98.5 percent of new accommodation requests for a 
postsecondary admissions test were submitted this way in the most 
recent testing year. Alternatively, when students submit the 
application themselves, school officials can provide copies of the 
disability documentation on file with the school. In addition to 
helping students with the application process itself, high school 
officials can also facilitate communications between the student and 
testing company after the application has been submitted. For example, 
one high school administrator we interviewed reported contacting a 
testing company about an accommodation application that had been 
submitted past the deadline for a specific test date. In this case, 
the student's recent health diagnosis and treatment necessitated 
accommodations, and the administrator helped explain why it was 
important for the student to take the test when originally scheduled. 

Text box: 
Postsecondary Schools' Services for Students with Disabilities; 
Postsecondary schools provide an array of services to help ensure that 
students have equal access to education. School officials we 
interviewed work closely with students who self-identify as having a 
disability and request services to provide accommodations, coordinate 
with faculty and campus services, meet periodically with students to 
monitor their progress, and adjust accommodations as necessary. 
Schools are required to identify an individual who coordinates the 
school's compliance with the Rehabilitation Act and the ADA. Some 
schools also have a centralized disability services office to 
coordinate these services. End of text box] 

The transition from high school to postsecondary school can present 
challenges for all students, and especially for students with 
disabilities because they must assume more responsibility for their 
education by identifying themselves as having a disability, providing 
documentation of their disability, and requesting accommodations and 
services.[Footnote 22] For example, students must decide whether or 
not to use accommodations in their postsecondary courses and, if 
needed, obtain any new documentation required to support a request for 
accommodations. Consequently, postsecondary schools play an important 
role in advising students with disabilities to help them achieve 
success both in school and when applying for testing accommodations. 
Generally, when postsecondary students apply for testing 
accommodations, school officials provide a letter documenting the 
accommodations students have used in school.[Footnote 23] In addition 
to providing these letters, postsecondary officials we interviewed 
described several ways they advise students who apply for testing 
accommodations, including the following: 

* Counseling students about what accommodations best meet their needs--
Postsecondary school officials play an important role in helping 
students adapt to the new academic environment and in determining the 
best accommodations to use in school and for standardized tests to 
achieve success at this level. For example, at one postsecondary 
school, a committee consisting of two learning specialists, a 
psychologist, two administrative staff, and the director of the 
disability services office meet to review each student's request for 
accommodations and discuss the appropriate services to provide for his 
or her courses. With technological advances, an official at another 
school has advised some students to reconsider requesting the 
accommodation of extra time as they may be better served by other 
accommodations, such as screen readers, to address their disability. 
According to the official, using certain technologies has decreased 
the need for extra time for some students as they have been able to 
complete more of their work on time. 

* Explaining application requirements--Postsecondary school officials 
advise students about the need to apply for testing accommodations and 
help them understand application requirements, which can be extensive. 
For example, several postsecondary officials we interviewed said they 
alerted students to the need to apply for testing accommodations and 
to allow sufficient time for the application process. One official 
reported sending reminders to students about the need to apply for 
accommodations if they are considering graduate school, and another 
official reported advising students to begin the process 4 to 6 months 
in advance, in case the testing company requests additional 
information. Another school official described helping a student 
interpret the testing company's instructions for the accommodation 
application, including what documentation is required. One school 
official said that she helps students understand more subtle aspects 
of preparing a successful application by, for example, recommending 
the use of consistent terminology to describe the disability 
throughout the application to make it easier for reviewers to 
understand. Several postsecondary officials we interviewed reported 
advising students about the likelihood of a testing company granting 
accommodations based on a review of their existing documentation. For 
example, a psychoeducational evaluation that was current when a 
student enrolled in postsecondary study might need to be updated by 
the time a student applies for testing accommodations. At one school, 
an official estimated that about 30 percent of the students served by 
the school's disability service office would need to update their 
documentation if they decide to apply for testing accommodations. 

* Providing resources to obtain evaluations--A few postsecondary 
officials we interviewed reported referring students to a variety of 
resources when they need an updated or new evaluation, sometimes at 
substantial savings to the student. Two schools we interviewed make 
campus resources available to students, such as providing grants or 
scholarships to help students who demonstrate financial need to offset 
the cost of evaluations. Schools also reported helping students by 
providing a mechanism for them to obtain the necessary evaluations on 
campus. For example, students can obtain an evaluation from the campus 
health and counseling center at one school for about $700, while the 
psychology clinic and the Department of Neuropsychology at another 
school provide these evaluations on a sliding fee basis. Additionally, 
officials said that they provide students with a list of area 
professionals who conduct evaluations, although such outside sources 
could cost several thousand dollars and may not be covered by health 
insurance. 

Testing Companies Determine Whether Applicants Qualify for 
Accommodations under the ADA and Whether Requests Are Appropriate: 

In reviewing requests for accommodations, testing companies included 
in our study reported considering a number of factors to determine 
whether applicants have a disability that entitles them to 
accommodations under the ADA. As part of their review process, the 
testing companies included in our study typically look for a current 
disability diagnosis made by a qualified professional. However, seven 
testing companies included in our study either state in their guidance 
for requesting accommodations or told us that the presence of a 
disability diagnosis does not guarantee an accommodation will be 
granted because they also need to consider the impact of the 
disability. Testing companies included in our study reported reviewing 
applications to understand how an applicant's current functional 
limitations pose a barrier to taking the exam under standard 
conditions. As an example, one testing company official stated that 
someone with limited mobility might meet the ADA definition of a 
disability but not need an accommodation if the testing center is 
wheelchair accessible. 

To understand an applicant's current functional limitations, testing 
companies may request documentation that provides evidence of how an 
applicant's disability currently manifests itself, such as the results 
of diagnostic tests. For example, several testing companies included 
in our study request that applications for accommodations include the 
results of a psychoeducational test to support a learning disability 
diagnosis. As another example, applicants who have a hearing 
impairment would be asked to provide the results of a hearing test to 
document their current condition. Officials from most testing 
companies included in our review said that, for some types of 
disabilities, it is important to have documentation that is current to 
help them understand the functional limitations of an applicant's 
disability. For example, one testing company official told us that 
disabilities of an unchanging nature, such as blindness or deafness, 
could be documented with evaluations from many years ago, whereas 
psychiatric conditions, learning disabilities, and ADHD would need 
more current evaluations. For applicants who may not have a formal 
disability diagnosis or recent medical evaluations, some testing 
company officials told us that they will look at whatever information 
applicants can provide to show how they are limited. For example, 
testing company officials said they will consider report cards or 
letters from teachers to obtain information about an applicant's 
condition. 

Another factor that several testing companies consider is how an 
applicant's functional ability compares to that of most people. 
[Footnote 24] For example, officials from one testing company told us 
that before granting an accommodation on the basis of a reading-
related disability, they would review the applicant's reading scores 
to make sure they were lower than those of the average person. Several 
testing company officials also told us that while reviewing 
information within an application for accommodations, they may reach a 
different conclusion about an applicant's limitations and necessary 
accommodations than what the applicant requested. For example, one 
testing company initially denied an applicant's request, in part, 
because the testing company's comparison of the applicant's diagnostic 
test scores with the average person his age led them to different 
conclusions about the applicant's ability to function than those of 
the medical evaluator who performed the tests. 

As described previously, Justice recently added new requirements to 
its Section 309 regulations to further define the parameters of 
appropriate documentation requests made by testing companies in 
reviewing requests for accommodations.[Footnote 25] One of those 
amendments provides that a testing entity should give considerable 
weight to documentation of past accommodations received in similar 
testing situations, as well as those provided under an IEP or Section 
504 plan. In discussing the regulations, most testing company 
officials we spoke with told us that they consider an applicant's 
history of accommodations; however, they also told us they may require 
more information to make a decision. For example, officials from one 
testing company said they may want information, such as documentation 
from a medical professional and a personal statement from the 
applicant, to explain the need for the accommodation if it had not 
been used previously or in recent years. In guidance on its revised 
regulations, Justice states that when applicants demonstrate a 
consistent history of a diagnosis of a disability, testing companies 
generally should accept without further inquiry documentation provided 
by a qualified professional who has made an individualized assessment 
of the applicant and generally should grant the requested 
accommodation.[Footnote 26] Testing company officials also told us 
they sometimes ask for more information than provided by a licensed 
professional in order to understand an applicant's disability and 
limitations. For example, for certain disabilities, such as learning 
disabilities or ADHD, officials from two testing companies told us 
they may request evidence dating back to childhood since these 
disabilities are considered developmental. While Justice states in its 
guidance that the amendments to the regulation were necessary because 
its position on the bounds of appropriate documentation had not been 
implemented consistently and fully by testing entities,[Footnote 27] 
officials from almost all of the testing companies included in our 
study stated that they did not need to change any of their practices 
for granting accommodations to be in compliance. 

Testing companies included in our study also consider what 
accommodations are appropriate for their tests. In doing so, some 
testing company officials told us that they may grant an accommodation 
that is different from what an applicant requested. Based on their 
assessment of how an applicant is limited with respect to the exam, 
testing company officials told us they make a determination as to 
which accommodations they believe will address the applicant's 
limitations. For example, one testing company official told us that 
three applicants with ADHD all might apply for extra time to complete 
the exam, but the testing company may decide different accommodations 
are warranted given each applicant's limitations--extra time for an 
applicant unable to maintain focus; extra breaks for an applicant who 
has difficulty sitting still for an extended time period; preferential 
seating for the applicant who is easily distracted. Even though one 
testing company official told us that evidence of a prior history of 
accommodations can be helpful in understanding how accommodations have 
been used in the past, having a history of prior accommodations in 
school does not guarantee that those accommodations will be 
appropriate for the test. For example, according to one testing 
company, some students with hearing impairments who need 
accommodations such as a note taker in school may not need 
accommodations on a written standardized test. 

In reviewing requests for accommodations, several testing company 
officials told us they try to work with applicants when they do not 
grant the specific accommodations requested. For example, one testing 
company official told us that if an applicant has a qualifying 
disability and she could not grant the requested accommodation because 
it would alter the test, she will try to work with an applicant to 
determine an appropriate accommodation. In addition, all of the 
testing companies included in our study have a process by which 
applicants can appeal the decision if they disagree with the outcome. 
Based on their reviews, testing companies reported granting between 72 
and 100 percent of accommodations that were requested in the most 
recent testing year for 6 of the 10 tests for which we received data. 
[Footnote 28] However, these testing companies counted an 
accommodation as granted even if it was different from what was 
requested. For example, testing companies told us that they would have 
counted an accommodation request for extra time as granted, even if 
the applicant requested more than what was granted. 

Documenting Need and Determining Appropriate Accommodations Can 
Present Challenges to Applicants and Testing Companies: 

Applicant Challenges: 

Some disability experts and applicants told us that one of the 
challenges in applying for accommodations was understanding how 
testing companies made their decisions, especially with relation to 
how much weight certain aspects of the application appeared to carry. 
Most of the applicants we spoke with told us that they requested 
accommodations that they were accustomed to using and were often 
frustrated that testing companies did not readily provide those 
accommodations. These applicants had gone through a process for 
requesting classroom accommodations and had documentation supporting 
those accommodations, and two applicants told us that they did not 
believe testing companies deferred to those documents in the way they 
would expect. Some disability experts expressed concern that testing 
companies rely heavily on scores that are perceived to be more 
objective measures, such as psychometric assessments, and two of these 
experts said they believe that, in addition to scores, testing 
companies should also consider the clinical or behavioral observations 
conducted by qualified professionals or school counselors. 

While testing companies provide guidance outlining their documentation 
requirements, some applicants and disability experts we spoke with 
told us that knowing what documentation to provide to a testing 
company can be a challenge in applying for accommodations. Two 
applicants told us it was unclear what and how much information to 
submit to support their requests. According to one of the applicants, 
the testing company asked for additional information to substantiate 
his request for additional time and a separate room to accommodate a 
learning disability, but was not specific about which documents it 
wanted or why. Four applicants told us they hired an attorney to help 
them determine what to submit in response to testing companies' 
requests for additional information or to appeal a denial. According 
to one of the applicants, the attorney helped him find the right 
balance of documentation to submit to successfully obtain 
accommodations, something he was not able to do when he first applied 
without legal assistance. School officials we spoke with said 
documenting the need for an accommodation can be particularly 
challenging for gifted students --those who demonstrate high levels of 
aptitude or competence--because they may not have a history of 
academic difficulty or accommodations. As a result, it can be more 
difficult to know what documentation to provide to support their 
requests. 

Disability experts and applicants also told us that, in some 
instances, they found testing companies' documentation requirements on 
providing a history of the disability to be unreasonable. Two 
applicants told us that they found it unreasonable to be asked to 
provide a lengthy history of their disability. For example, one 
student we spoke with who was diagnosed with a learning disability in 
college provided the testing company with the results of cognitive 
testing and documentation of the accommodations he received in 
college, but the testing company also requested records of his 
academic performance going back to elementary school. He did not 
understand how such information was relevant to document his current 
functioning and found the request to be unreasonable since he was 30 
years removed from elementary school. Some applicants also found it 
frustrating to have to update medical assessments for conditions that 
had not changed. For example, one applicant was asked to obtain a new 
evaluation of her disability even though school evaluations conducted 
every 3 years consistently showed that she has dyslexia. Applicants 
and disability experts we spoke with told us that obtaining these 
assessments can be cost prohibitive, and applicants reported costs for 
updating these assessments ranging from $500 to $9,000. 

For blind applicants, access to familiar assistive technology, such as 
screen-reading or screen-magnification software, was particularly 
challenging, according to applicants and disability experts. Two blind 
applicants told us they faced difficulty with being allowed to use the 
specific technology they requested for the test. One of the applicants 
told us the testing company required him to use its screen-reading 
software rather than the one he used regularly, resulting in greater 
anxiety on the day of the test since he had to learn how to use a new 
tool. Similarly, this applicant told us he faced similar challenges in 
working with readers provided by different testing companies rather 
than readers of his own choosing, since he was not comfortable with 
the reader's style. 

While most of the applicants we spoke with eventually received one or 
more of their requested accommodations, several of them reported 
having to postpone their test date as a result of the amount of time 
the accommodations approval process took. Some applicants told us that 
they also experienced delays in achieving their educational or 
professional goals. Additionally, some applicants who were denied 
their accommodations told us that when they elected to take the test 
without accommodations, they felt that their exam results did not 
fully demonstrate their capabilities. For example, one applicant told 
us that he took a licensing exam a few times without the 
accommodations he requested over a two-year period while appealing the 
testing company's decision, but each time his scores were not high 
enough for licensure nor did they reflect his academic performance. As 
a result, the applicant was two years behind his peers. Another 
applicant told us that she did not receive the requested 
accommodations for one of the licensing exams she applied for and 
decided not to take the exam for the time being because it wasn't 
necessary for her to practice in the state she was living in. However, 
she anticipates needing to take the test as she furthers her career 
because the license will be needed for her to practice in surrounding 
states. 

Testing Company Challenges: 

Testing companies we interviewed reported challenges with ensuring 
fairness to all test takers when reviewing applications for 
accommodations. Officials from three testing companies expressed 
concern that some applicants may try to seek an unfair advantage by 
requesting accommodations they do not need. For example, officials 
from two of the companies said some applicants may see an advantage to 
getting an accommodation, such as extra time, and will request it 
without having a legitimate need. Officials from the other testing 
company told us that they do not want to provide accommodations to 
applicants who do not need them because doing so could compromise the 
predictive value of their tests and unfairly disadvantage other test 
takers.[Footnote 29] Officials from several testing companies told us 
that ensuring the reliability of their test scores was especially 
important since so many colleges, universities, and licensing bodies 
rely on them to make admissions and licensing decisions. 

Testing company officials told us that reviewing requests that contain 
limited information can be challenging because they do not have 
sufficient information to make an informed decision. One testing 
company official told us she received an accommodation request 
accompanied by a note on a doctor's prescription pad that indicated 
the applicant had ADHD without any other information to document the 
applicant's limitations on the test, thereby making it difficult to 
grant an accommodation. Officials from three testing companies also 
told us that an applicant's professional evaluator may not have 
provided enough information to explain why the applicant needs an 
accommodation. They reported receiving evaluations without a formal 
disability diagnosis or evaluations with a diagnosis, but no 
information as to how the diagnosis was reached, leaving them with 
additional questions about the applicant's condition. In addition, 
some testing company officials said it can be difficult to explain to 
applicants that having a diagnosis does not mean they have a 
qualifying disability that entitles them to testing accommodations 
under the ADA. One testing company official said she spends a great 
deal of time explaining to applicants that she needs information on 
their functional limitations in addition to a disability diagnosis. 

Testing company officials also told us that evaluating requests for 
certain types of disabilities or accommodations can be difficult. Some 
testing company officials told us that evaluating requests from gifted 
applicants or those with learning disabilities are among the most 
challenging. Such applicants may not have a documented history of 
their disability or of receiving accommodations, making it more 
difficult to determine their current needs. One testing company 
official told us that greater scrutiny is applied to requests from 
applicants without a history of accommodations because they question 
why the applicant was not previously diagnosed and suddenly requests 
accommodations for the test. Officials from two testing companies 
stated that determining whether to provide for the use of assistive 
technologies or certain formats of the test can be difficult. One 
testing company official stated that allowing test takers to use their 
own software or laptop might result in information, such as test 
questions, being left on a test taker's computer, which could 
compromise future administrations of the test since some questions may 
be reused. The official from the other company stated that providing 
the exam in a nonstandard format may change the exam itself and make 
the comparability of scores more difficult. 

Officials from two testing companies and an attorney representing some 
of the testing companies included in our study also told us they have 
concerns about testing companies being required to provide 
accommodations that best ensure that applicants' test results reflect 
the applicants' aptitudes rather than their disabilities since they 
believe the ADA only requires testing companies to provide reasonable 
accommodations. In a brief filed by several testing companies and 
professional licensing boards supporting NCBE's request that the 
Supreme Court review the Court of Appeals decision in the Enyart case, 
they stated that a "best ensure" standard would fundamentally alter 
how standardized tests are administered since they would have to 
provide whatever accommodation the test taker believes will best 
ensure his or her success on the test. They stated this would skew 
nationwide standardized test results, call into question the fairness 
and validity of the tests, and impose new costs on testing 
organizations. 

Federal Enforcement Is Largely Complaint-Driven, and Justice Lacks a 
Strategic Approach to Ensure Testing Company Compliance: 

Enforcement of Testing Company Compliance Generally Occurs in Response 
to Complaints, and Involves Multiple Agencies: 

Federal enforcement of laws and regulations governing testing 
accommodations primarily occurs in response to citizen complaints 
[Footnote 30] that are submitted to federal agencies. While Justice 
has overall responsibility for enforcement of Title III of the ADA, 
[Footnote 31] which includes Section 309 that is specifically related 
to examinations offered by private testing companies, other federal 
agencies such as Education and HHS have enforcement responsibilities 
under the Rehabilitation Act for testing companies that receive 
federal financial assistance from them. Justice can pursue any 
complaints it receives alleging discrimination under the ADA, 
regardless of the funding status of the respondent, but Education and 
HHS can only pursue complaints filed against entities receiving 
financial assistance from them at the time the alleged discrimination 
occurred. Education and HHS provided financial assistance to 4 of the 
10 testing companies included in our study in at least 1 of the 4 
fiscal years included in our analysis, fiscal years 2007 to 2010. 

When Justice receives a complaint that alleges discrimination 
involving testing accommodations it may investigate the complaint, 
refer it to another federal agency that has jurisdiction, or close it 
with no further action. After Justice reviews the complaint at in-
take, it advises complainants that it might not make a determination 
about whether or not a violation has occurred in each instance. 
Justice officials explained that the department does not have the 
resources to make a determination regarding each complaint given the 
large volume and broad range of ADA complaints the agency receives. 
Specifically, Justice's Disability Rights Section of the Civil Rights 
Division reported receiving 13,140 complaints, opening 3,141 matters 
for investigation, and opening 41 cases for litigation[Footnote 32] 
related to the ADA in fiscal years 2007 to 2010. Due to the 
limitations of Justice's data systems, it is not possible to 
systematically analyze Justice's complaint data to determine the total 
related to testing accommodations. However, using a key word search, 
Justice identified 59 closed complaints related to testing 
accommodations involving 8 of the 10 testing companies included in our 
study for fiscal years 2007 to 2010.[Footnote 33] Based on our review 
of available complaint information, we found that Justice closed 29 
complaints without action, 2 were withdrawn by the complainant, and 1 
was referred to a U.S. Attorney. However, we were unable to determine 
the final disposition of 27 complaints given information gaps in 
Justice's data systems and paper files. In addition to identifying 
closed complaints, Justice identified five closed matters related to 
testing accommodations for three of the testing companies included in 
our study for fiscal years 2007 to 2010. One of these resulted in a 
settlement[Footnote 34] with the testing company that would allow the 
complainant to take the exam with accommodations, two were closed 
based on insufficient evidence provided by the complainant, and the 
outcome of the remaining two could not be determined based on limited 
information in Justice's files. 

Education and HHS officials told us they review each incoming 
complaint to determine whether it should be investigated further. For 
Education and HHS to conduct further investigations, the complaint 
must involve an issue over which the agencies have jurisdiction and be 
filed in a timely manner.[Footnote 35] Eligible complaints are then 
investigated to determine whether a testing company violated the 
Rehabilitation Act. Similar to Justice, Education did not track 
complaints specifically involving testing accommodations. However, 
Education was able to identify a subset of complaints related to 
testing accommodations for the testing companies included in our 
sample by comparing our list of testing companies against all of their 
complaints. For fiscal years 2007 to 2010, Education identified 41 
complaints related to testing accommodations involving six of the 
testing companies included in our study. Based on a review of closure 
letters sent to complainants, we found that Education did not consider 
testing company compliance for most complaints. Specifically, 
Education determined that it did not have the authority to investigate 
14 complaints involving testing companies that were not receiving 
federal financial assistance at the time of the alleged violation. 
[Footnote 36] Education closed 14 other complaints without making a 
determination about compliance because the complaint was not filed on 
time, was withdrawn, or involved an allegation pending with the 
testing company or the courts. Based on its investigation of the 
remaining 13 complaints, Education did not identify any instances in 
which testing companies were not in compliance with the Rehabilitation 
Act. HHS identified one complaint against a testing company included 
in our study, but it was withdrawn by the complainant prior to a 
determination being made. 

Justice Has Clarified ADA Requirements for Testing Accommodations but 
Lacks a Strategic Approach to Enforcement: 

Justice's regulations implementing Section 309 of the ADA provide the 
criteria for its enforcement efforts,[Footnote 37] and it has recently 
taken steps to clarify ADA requirements pertaining to testing 
accommodations by adding new provisions to regulations. In June 2008--
prior to passage of the ADA Amendments Act, Justice issued a notice of 
proposed rulemaking,[Footnote 38] and issued final regulations in 
September 2010 following a public hearing and comment period.[Footnote 
39] In issuing those regulations, Justice stated that it relied on its 
history of enforcement efforts, research, and body of knowledge 
regarding testing accommodations. Justice officials told us they added 
new provisions to the regulations based on reports--detailed in 
complaints and anecdotal information from lawyers and others in the 
disability rights community--that raised questions about what 
documentation is reasonable and appropriate for testing companies to 
request. The final regulations, which took effect in March 2011, added 
provisions clarifying that testing companies' requests for 
documentation should be reasonable and limited to the need for the 
accommodation, that testing companies should give considerable weight 
to documentation showing prior accommodations, and they should respond 
in a timely manner to accommodations requests. Justice provided 
further clarification of these provisions in the guidance that 
accompanied the final rule.[Footnote 40] Since the final regulations 
took effect, Justice has also filed statements of interest in two 
recent court cases to clarify and enforce its regulations.[Footnote 
41] In both of these cases, test takers with visual disabilities filed 
lawsuits seeking to use computer assistive technology to take a 
standardized test, rather than other accommodations that the testing 
company thought were reasonable, including Braille, large print, and 
audio formats. In these statements of interest, Justice discussed the 
background of the ADA and its regulations and stated that the 
accommodations offered to those test takers should be analyzed under 
the "best ensure" standard. Justice also pointed out that Congress 
intended for the interpretation of the ADA to evolve over time as new 
technology was developed that could enhance options for students with 
disabilities. In addition, Justice stated that it had made clear in 
regulatory guidance that appropriate auxiliary aids should keep pace 
with emerging technology. 

While these actions may help clarify what is required under the ADA, 
we found that Justice is not making full use of available data and 
other information to target its enforcement activity. For example, 
incoming complaints are the primary mechanism Justice relies on to 
focus its enforcement efforts, and it makes decisions on which 
complaints to pursue primarily on a case-by-case basis. However, 
Justice does not utilize information gathered on all its complaints to 
develop a systematic approach to enforcement that would extend beyond 
one case. Officials told us that the facts and circumstances of every 
complaint are unique, but that in determining whether to pursue a 
particular complaint, they consider a number of factors, including 
available resources and the merits of the complaint. Officials also 
said they may group complaints, for example, waiting until they 
receive a number of complaints related to the same testing company 
before deciding whether to pursue them. They also told us they may 
pursue a complaint if it highlights an aspect of the ADA that has not 
yet been addressed. For example, Justice officials told us the 
department investigated one recent complaint because it demonstrated 
how someone who was diagnosed with a disability later in life and did 
not have a long history of receiving classroom accommodations was 
eligible for testing accommodations under the ADA. While these may be 
the appropriate factors for Justice to consider in determining whether 
to pursue each individual complaint, we found that the agency has not 
given sufficient consideration to whether its enforcement activities 
related to all complaints, when taken in the aggregate, make the most 
strategic use of its limited resources. 

In addition, although Justice collects some data on the ADA complaints 
it receives, it does not systematically utilize these data to inform 
its overall enforcement activities in this area. Information on 
incoming complaints are entered into the Justice's Correspondence 
Tracking System, and data on complaints that it pursues, also known as 
matters, are entered into its Interactive Case Management system. 
Justice officials told us that they do not systematically review 
information from these data systems given system limitations. For 
example, Justice is able to generate reports on complaints and matters 
associated with a specific statute (e.g., Title II or III of the ADA), 
but because no additional data on the type of complaint are entered 
into their systems it is not possible to generate a list of complaints 
and matters related to specific issues, such as testing 
accommodations. Additionally, because the two systems do not 
interface, Justice is unable to determine the disposition of all 
complaints. Of the five closed matters we reviewed, we were only able 
to track one back to the original complaint in the Correspondence 
Tracking System. In the absence of data that can be systematically 
analyzed, Justice relies on its institutional knowledge of complaints 
and matters to inform its enforcement efforts. For example, Justice 
officials told us they know which testing companies are more 
frequently cited in complaints. While institutional knowledge can be a 
useful tool to inform decisions, it may leave the agency at risk of 
losing critical knowledge. For example, with the recent retirement of 
two key officials from the Civil Rights Division's Disability Rights 
Section, Justice has lost a major component of its institutional 
knowledge related to testing accommodations. We provided Justice with 
the names of testing companies included in our review to identify 
complaints and matters in their systems related to these companies. 
While Justice officials said they have conducted similar searches in 
reference to a specific complaint, they have not conducted systematic 
searches of their data systems to inform their overall enforcement 
efforts. In the absence of systematic reviews of information on 
complaints within their data systems, Justice may be missing out on 
opportunities to be strategic in identifying enforcement actions that 
would extend beyond one complaint or that would address widespread 
issues related to how testing accommodations decisions are made by 
testing companies. 

In addition to not making full use of its complaint data, Justice has 
not effectively coordinated with other agencies to inform its 
enforcement efforts. While Justice has broad responsibility for 
enforcing compliance with the ADA, Justice officials told us that they 
were not aware that Education and HHS were receiving and pursuing 
testing accommodations complaints for testing companies that were 
recipients of federal funding. Justice officials stated that they have 
not had regular meetings or exchanges related to testing 
accommodations with officials from Education or HHS. Officials from 
HHS also told us that relevant federal agencies provide expertise to 
one another when necessary, but that no formal or regular coordination 
meetings related to testing accommodations have been held with Justice 
or Education. By not coordinating with other federal agencies, Justice 
is limiting its ability to assess the full range of potential 
compliance issues related to testing accommodations. 

As part of its enforcement authority, the ADA authorizes Justice to 
conduct periodic compliance reviews.[Footnote 42] Justice reviews 
testing company compliance with the ADA in the course of investigating 
complaints, and officials said they could conduct a compliance review 
if they received a series of complaints against a particular company. 
However, Justice officials told us they have not initiated any 
compliance reviews that include a thorough examination of a testing 
company's policies, practices, and records related to testing 
accommodations. Justice officials said it would be difficult to 
undertake a thorough compliance review because testing companies are 
not required to cooperate with such a review, and the agency lacks the 
authority to subpoena testing companies. However, in the absence of 
attempting to conduct such a compliance review, Justice is not in a 
position to fully assess whether this enforcement mechanism could 
prove beneficial to them. 

In its 2007-2012 Strategic Plan, Justice states that "outreach and 
technical assistance will continue to play a vital role to ensure 
compliance with the civil rights statutes."[Footnote 43] However, 
Justice's efforts to provide technical assistance related to testing 
accommodations have been limited. Justice officials told us they 
provide technical assistance by responding to calls that come into the 
ADA hotline or directly to the Disability Rights Section. For example, 
a disability advocate may reach out to an attorney to discuss a 
particular student's situation. Justice officials told us they have 
discussed testing accommodations at meetings and conferences when 
invited to attend, although they have not made any presentations in 
recent years. Justice provides some guidance regarding testing 
accommodations in its ADA Title III Technical Assistance Guide. 
However, since the guide was last updated in 1993, it does not reflect 
recent ADA amendments, regulatory changes, or changes in 
accommodations available to test takers based on advances in 
technology. Justice officials also told us that they have not recently 
conducted outreach with testing companies. They reported that their 
resources have been focused on issuing regulations related to both 
testing accommodations and other topic areas. Testing company 
officials we interviewed reported that they had limited or no 
interaction with Justice, and one official said she would welcome more 
interaction with Justice to ensure the company was interpreting the 
laws correctly. An attorney who works with multiple testing companies 
included in our study told us that, because Justice only reviews 
complaints, which represent a small fraction of all testing 
accommodations requested, it may not have an accurate view of how 
often testing companies grant accommodations. Similarly, Justice has 
not leveraged its complaint and case data to target outreach and 
technical assistance based on the types of complaints most frequently 
filed. For example, Justice has not analyzed its complaint files to 
determine if multiple complaints filed had similar themes so that they 
could target their outreach to testing companies to clarify how to 
apply the regulations in these cases. Without targeted outreach, 
Justice misses opportunities to limit or prevent testing company 
noncompliance with the ADA. 

Conclusions: 

Given the critical role that standardized tests play in making 
decisions on higher education admissions, licensure, and job 
placement, federal laws require that individuals with disabilities are 
able to access these tests in a manner that allows them to accurately 
demonstrate their skill level. While testing companies reported 
providing thousands of test takers with accommodations in the most 
recent testing year, test takers and disability advocates continue to 
raise questions about whether testing companies are complying with the 
law in making their determinations. Justice, as the primary 
enforcement agency under the ADA, has taken steps to clarify how 
testing companies should make their determinations, but its 
enforcement lacks the strategic and coordinated approach necessary to 
ensure compliance. Without a systematic approach to reviewing 
complaints that it receives, Justice cannot assure that all complaints 
are consistently considered and that it is effectively targeting its 
limited resources to the highest priority enforcement activities. 
Continuing to target enforcement on a case-by-case basis does not 
allow Justice to consider what enforcement activities could extend 
beyond one case. Additionally, in the absence of coordination with 
other federal agencies, Justice is missing opportunities to strengthen 
enforcement by assessing the full range of potential compliance issues 
related to testing accommodations. Justice's largely reactive approach 
to enforcement in this area may also limit its ability to address 
problems before trends of noncompliance are well established. After 
revising its testing accommodations regulations, Justice did not 
conduct outreach to testing companies or update its technical 
assistance materials to ensure the requirements were being applied 
consistently. Since we found testing companies believe their practices 
are already in compliance with the new regulatory requirements, it is 
unclear whether these changes will better protect the rights of 
students with disabilities. In order to ensure individuals with 
disabilities have equal opportunity to pursue their education and 
career goals, it is imperative for Justice to establish a credible 
enforcement presence to detect, correct, and prevent violations. 

Recommendation for Executive Action: 

We recommend to the Attorney General that Justice take steps to 
develop a strategic approach to target its enforcement efforts related 
to testing accommodations. For example, the strategic approach could 
include (1) analyzing its complaint and case data to prioritize 
enforcement and technical assistance, (2) working with the Secretaries 
of Education and HHS to develop a formal coordination strategy, and 
(3) updating technical assistance materials to reflect current 
requirements. 

Agency Comments and Our Evaluation: 

We provided a draft of this report to Justice, Education, and HHS for 
review and comment. In written comments, Justice agreed with our 
recommendation, stating that its efforts to ensure the rights of 
individuals with disabilities are best served through a strategic use 
of its authority to enforce the ADA's testing provisions. Justice 
highlighted some actions the agency will pursue to enhance enforcement 
in this area. With regard to analyzing its data, Justice stated that 
it utilizes complaint and case data through all stages of its work and 
makes decisions about which complaints to pursue based on ongoing and 
prior work. Also, Justice stated that it is looking for ways to 
improve its recordkeeping with respect to completed investigations and 
cases. While improving its recordkeeping is a positive action, we 
believe it is important for Justice to systematically review its data 
to strategically enforce the law. As we stated in our report, Justice 
has not utilized its data to develop a systematic approach to 
enforcement that would extend beyond one case, nor has it given 
sufficient consideration to whether its enforcement activities, when 
taken in the aggregate, make the most strategic use of its limited 
resources. Justice agreed to pursue discussions with both Education 
and HHS on the investigation and resolution of complaints about 
testing accommodations, and agreed to develop additional technical 
assistance materials on testing accommodations in the near future. 
Justice's written comments appear in appendix II. 

In written comments, Education committed to working with Justice to 
coordinate efforts to ensure equity in testing for all students, 
including students with disabilities, consistent with the laws they 
enforce. Education's written comments appear in appendix III. 

Justice and Education also provided technical comments, which were 
incorporated into the report as appropriate. 

HHS had no comments on the draft report. 

As arranged with your offices, unless you publicly announce its 
contents earlier, we plan no further distribution of this report until 
30 days from its issue date. At that time, we will send copies of this 
report to relevant congressional committees, the Attorney General, the 
Secretary of Education, the Secretary of Health and Human Services, 
and other interested parties. In addition, this report will be 
available at no charge on GAO's website at [hyperlink, 
http://www.gao.gov]. 

If you or your staff members have any questions about this report, 
please contact me at (202) 512-7215 or scottg@gao.gov. Contact points 
for our Offices of Congressional Relations and Public Affairs may be 
found on the last page of this report. GAO staff who made key 
contributions to this report are listed in appendix IV. 

Signed by: 

George A. Scott: 
Director, Education, Workforce, and Income Security Issues: 

[End of section] 

Appendix I: Objectives, Scope, and Methodology: 

The objectives of this report were to determine (1) what types of 
accommodations individuals with disabilities apply for and receive, 
and how schools assist them; (2) what factors testing companies 
consider when making decisions about requests for testing 
accommodations; (3) what challenges students and testing companies 
experience in receiving and granting testing accommodations; and (4) 
how federal agencies enforce compliance with relevant federal 
disability laws and regulations. 

For our study, we focused our review on a nongeneralizeable sample of 
11 tests administered by 10 testing companies. We chose tests that are 
commonly used to gain admission into undergraduate, graduate, and 
professional programs and to obtain professional certification or 
licensure. We included the SAT and ACT in our study as these are the 2 
most commonly used standardized tests for admission into undergraduate 
programs. To determine which graduate level and certification or 
licensure tests to include in our study, we reviewed data from the 
Integrated Postsecondary Education Data System (IPEDS) to establish 
the fields of study with the largest populations of students 
graduating with a masters or first professional degree. We also 
reviewed IPEDS data to determine the top three fields of study in 
which students with disabilities are enrolled. Based on these data, we 
identified 5 graduate and professional admissions tests, and 4 
corresponding professional certification tests that could be required 
of students graduating with degrees in these fields. The fields of 
study included business, education, law, medicine, and pharmacy. To 
inform our findings, we interviewed officials from seven of the 
testing companies included in our study, and two companies submitted 
written responses to questions we provided. One testing company 
declined to participate in our study. (See table 1 for a list of the 
testing companies and tests included in our study.) The views of the 
testing company officials we spoke with or received responses from 
cannot be generalized to all testing companies that provide 
accommodations to applicants with disabilities. 

Table 1: Tests Included in Our Study: 

Undergraduate admission: 

Test: ACT; 
Testing company: ACT, Inc.; 
Participated in study: [Check]; 
Provided data: [Check]; 
Declined to participate: [Empty]. 

Test: SAT; 
Testing company: The College Board; 
Participated in study: [Check]; 
Provided data: [Check]; 
Declined to participate: [Empty]. 

Graduate and professional admission: 

Test: GRE; 
Testing company: Educational Testing Service (ETS); 
Participated in study: [Check]; 
Provided data: [Check]; 
Declined to participate: [Empty]. 

Test: Graduate Management Admission Test (GMAT); 
Testing company: Graduate Management Admission Council (GMAC); 
Participated in study: [Check]; 
Provided data: [Check]; 
Declined to participate: [Empty]. 

Test: Medical College Admission Test (MCAT); 
Testing company: Association of American Medical Colleges (AAMC); 
Participated in study: [Check]; 
Provided data: [Check]; 
Declined to participate: [Empty]. 

Test: Law School Admission Test (LSAT); 
Testing company: Law School Admission Council (LSAC); 
Participated in study: [Empty]; 
Provided data: [Empty]; 
Declined to participate: [Check]. 

Test: Pharmacy College Admission Test (PCAT); 
Testing company: Pearson, Inc.; 
Participated in study: [Check]; 
Provided data: [Check]; 
Declined to participate: [Empty]. 

Professional certification: 

Test: Multistate Professional Responsibility Examination (MPRE); 
Testing company: National Conference of Bar Examiners (NCBE) and ACT, 
Inc[A]; 
Participated in study: [Check]; 
Provided data: [Check]; 
Declined to participate: [Empty]. 

Test: North American Pharmacist Licensure Examination (NAPLEX); 
Testing company: National Association of Boards of Pharmacy (NABP); 
Participated in study: [Check]; 
Provided data: [Check]; 
Declined to participate: [Empty]. 

Test: The PRAXIS Series; 
Testing company: ETS; 
Participated in study: [Check]; 
Provided data: [Check]; 
Declined to participate: [Empty]. 

Test: United States Medical Licensing Examination (USMLE); 
Testing company: National Board of Medical Examiners (NBME)[B]; 
Participated in study: [Check]; 
Provided data: [Check]; 
Declined to participate: [Empty]. 

Source: GAO. 

[A] NCBE contracts ACT to review and make determinations regarding 
testing accommodations for the MPRE; however, NCBE provides input as 
necessary and has oversight responsibility. 

[B] We also met with the Federation of State Medical Boards of the 
United States, Inc. (FSMB) in discussing the USMLE. However, FSMB is 
not included in this table since NBME is responsible for making all 
decisions related to testing accommodations. 

[End of table] 

To determine the types of accommodations requested by individuals with 
disabilities and granted by testing companies, we reviewed data 
provided by testing companies on accommodations requested and granted, 
interviewed testing company officials, interviewed disability experts, 
and reviewed literature to understand the types of accommodations 
applicants with disabilities might require. GAO provided testing 
companies with a standardized data collection instrument that covered 
a range of topics including the types of disabilities students have 
and the types of accommodations they requested and were granted in the 
most recent testing year. We asked for data on the number of 
accommodations requested and granted by type of accommodation and type 
of disability. In some cases, testing companies did not collect data 
in the manner requested by GAO and instead provided alternate data to 
help inform our study.[Footnote 44] Because of the variance in how 
testing companies collect data on disability type, we aggregated data 
into broad disability categories. We identified the following 
limitations with data provided by the testing companies, in addition 
to those noted throughout the report. We excluded data testing 
companies provided on applicants with multiple disabilities because 
these data were reported differently across testing companies. For 
example, one testing company provided a disability category called 
multiple disabilities while another told us that, in cases where an 
applicant has more than one disability, they capture in their data the 
disability most relevant to the accommodation. In general, testing 
companies' data reflect those requests that were complete, not those 
for which a decision was pending in the testing year for which data 
were provided. In our data request, we asked questions about the 
reliability of the data, such as whether there are audits of the data 
or routine quality control procedures in place. Based on their 
responses to these questions, we believe the data provided by the 
testing companies were sufficiently reliable for the purposes of this 
report. 

To understand how schools assist individuals in applying for 
accommodations, we interviewed officials from a nongeneralizable 
sample of 8 high schools and 13 postsecondary schools and eight 
individuals with disabilities who had applied for testing 
accommodations. (See table 2 for a complete list of schools.) To 
select schools, we reviewed data from Education's Common Core of Data 
and IPEDS databases and chose a nongeneralizable sample based on 
characteristics such as sector (public and private, including 
nonprofit and for-profit postsecondary), geographic diversity 
(including urban, suburban, and rural settings for high schools), 
total enrollment, and size of population of students with 
disabilities. We also reviewed publicly available lists of colleges 
and universities to identify postsecondary schools that offered 
academic programs in the fields corresponding to the tests we chose. 
We identified individuals with disabilities to interview based on 
referrals from experts and school officials and selected them based on 
their representation of a range of disabilities and tests for which 
they sought accommodations. 

Table 2: Schools Interviewed: 

High schools: 

School name: Frenchtown High School; 
Location: Frenchtown, Montana. 

School name: Kelly High School; 
Location: Chicago, Illinois. 

School name: The Lab School; 
Location: Washington, D.C. 

School name: Notre Dame Preparatory School; 
Location: Scottsdale, Arizona. 

School name: Oakdale High School; 
Location: Oakdale, California. 

School name: Palisades Charter High School; 
Location: Pacific Palisades, California. 

School name: Vidor High School; 
Location: Vidor, Texas. 

School name: Walter Johnson High School; 
Location: Bethesda, Maryland. 

Postsecondary schools: 

School name: American University Washington College of Law; 
Location: Washington, D.C. 

School name: Carleton College; 
Location: Northfield, Minnesota. 

School name: DeVry University; 
Location: Various locations. 

School name: Edinboro University of Pennsylvania; 
Location: Edinboro, Pennsylvania. 

School name: Golden Gate University School of Law; 
Location: San Francisco, California. 

School name: Harvard Graduate School of Education; 
Location: Cambridge, Massachusetts. 

School name: Northwestern University; 
Location: Evanston, Illinois. 

School name: University of Arizona and College of Pharmacy; 
Location: Tucson, Arizona. 

School name: University of Connecticut and School of Law; 
Location: Storrs, Connecticut. 

School name: University of Denver; 
Location: Denver, Colorado. 

School name: University of Maryland; 
Location: College Park, Maryland. 

School name: University of Michigan; 
Location: Ann Arbor, Michigan. 

School name: University of North Carolina; 
Location: Chapel Hill, North Carolina. 

Source: GAO. 

[End of table] 

To determine the factors testing companies consider when making their 
decisions, we reviewed policies and procedures for requesting 
accommodations found on testing companies' Web sites and reviewed 
relevant federal laws and regulations pertaining to testing companies. 
However, we did not evaluate whether these policies and procedures as 
written or described to us in interviews--either on their face or as 
applied in the context of responding to individual requests for 
accommodations--were in compliance with relevant laws or regulations. 
Accordingly, statements in this report that describe the policies and 
procedures used by testing companies to review and respond to requests 
for accommodations, should not be read as indicating that testing 
companies are either in or out of compliance with applicable federal 
laws. We also conducted interviews with seven testing companies and 
reviewed written responses to our questions from two companies that 
declined our request for an interview. One company declined to 
participate in our study. 

To identify the challenges that applicants and testing companies may 
experience in receiving and granting accommodations, we interviewed 
eight individuals with disabilities to learn about their experiences 
in obtaining accommodations, interviewed testing company officials and 
reviewed written responses from testing companies about the challenges 
they face in granting accommodations, interviewed disability advocacy 
groups and researchers with expertise in various types of 
disabilities, and reviewed literature. The testing companies that 
participated in our study reviewed draft statements in this report, 
and their comments were incorporated as appropriate. 

To determine how federal agencies enforce compliance with relevant 
federal laws and regulations, we reviewed pertinent laws and 
regulations to identify the responsibilities of federal agencies and 
interviewed officials from Justice, Education, and HHS to learn about 
the actions these agencies take to enforce compliance. In addition, we 
obtained data from Justice, Education, and HHS on the number of closed 
complaints they received between fiscal years 2007 and 2010 related to 
testing accommodations for the 10 testing companies included in our 
study. We also reviewed selected court cases regarding testing 
accommodations. Since Justice receives the majority of complaints, we 
reviewed all of Justice's available paper files associated with 
complaints and matters pertaining to the testing companies in our 
study. We reviewed the paper files to better understand what action 
Justice takes in responding to complaints and enforcing testing 
company compliance. We also reviewed all of Education's closure 
letters and HHS' complaint and closure letters, pertaining to testing 
companies in our study from fiscal years 2007 to 2010, to better 
understand what action these agencies take. We reviewed existing 
information about the data and interviewed agency officials 
knowledgeable at Justice, Education, and HHS. We identified some 
limitations with the data as we described in our report. Justice 
reported receiving 13,140 ADA-related complaints between fiscal years 
2007 and 2010. Justice used key word searches of the data to identify 
59 closed complaints related to testing accommodations involving 8 of 
the 10 testing companies included in our study. Justice also 
identified five closed matters. We were unable to determine the final 
disposition of 27 complaints due to gaps in Justice's data systems and 
paper files. By comparing our list of testing companies against their 
complaints, Education was able to identify 41 complaints. HHS was able 
to identify only 1 complaint that was later withdrawn. Due to 
limitations with the data, we cannot generalize the results of our 
file review. 

We conducted this performance audit from October 2010 to November 
2011, in accordance with generally accepted government auditing 
standards. Those standards require that we plan and perform the audit 
to obtain sufficient, appropriate evidence to provide a reasonable 
basis for our findings and conclusions based on our audit objectives. 
We believe that the evidence obtained provides a reasonable basis for 
our findings and conclusions based on our audit objectives. 

[End of section] 

Appendix II: Comments from the Department of Justice: 

U.S. Department of Justice: 
Civil Rights Division: 
Office of the Assistant Attorney General: 
Washington, D.C. 20530: 

November 15, 2011: 

Mr. George Scott: 
Director: 
Education, Workforce, and Income Security: 
U.S. Government Accountability Office: 
441 G Street, N.W. 
Washington, D.C. 20548: 

Dear Mr. Scott: 

Thank you for the opportunity to review the draft of the Government 
Accountability Office (GAO) report entitled "Higher Education And 
Disability, Improved Federal Enforcement Needed to Better Protect 
Students' Rights to Testing Accommodations.” This draft report was 
reviewed by the Disability Rights Section within the Civil Rights 
Division of the Justice Department, which also participated in the GAO 
review. 

The Department greatly appreciates GAO's and the requesting members' 
interest in this important subject. We also appreciated the 
opportunity to work and correspond with GAO's investigative team to 
provide a variety of materials and responses to questions raised 
during the investigation. Ensuring the rights of persons with 
disabilities to testing accommodations is a Departmental priority. We 
agree that such efforts are best served through a comprehensive and 
strategic use of the Department's statutory authority to enforce the 
ADA's testing provisions, promulgating relevant regulations to guide 
testing entities, and providing technical assistance and outreach to 
stakeholders, including testing entities, schools, and students with 
disabilities and their families. 

It is the Department's goal to assure that individuals with 
disabilities have a full and equal opportunity to access and benefit 
from educational and employment opportunities available to others. In 
many instances, the gateway to such opportunities is an admission, 
certification, or licensing examination. The ADA requires entities 
administering such exams to ensure that they are offered in a manner 
accessible to persons with disabilities. In the words of the 
regulation, at 28 C.F.R. § 36.309, the entity must assure that: 

the examination is selected and administered so as to best ensure 
that, when the examination is administered to an individual with a 
disability that impairs sensory, manual, or speaking skills, the 
examination results accurately reflect the individual's aptitude or 
achievement level or whatever other factor the examination purports to 
measure, rather than reflecting the individual's impaired sensory, 
manual, or speaking skills (except where those skills are the factors 
that the examination purports to measure). 

The Department endeavors to responsibly and forcefully steward its 
enforcement resources so that the civil rights of persons with 
disabilities are protected, and to ensure that covered entities comply 
with the law. In some cases, requiring an entity to develop a standard 
policy or to modify an existing policy will assure accessibility for 
classes of persons with disabilities. For example, an entity 
administering a licensing exam in a public or private facility would 
have to modify an otherwise permissible no-pets policy to grant 
individuals with disabilities who use service animals full access to 
the facility. In other cases, determining what is a required testing 
accommodation may call for an individualized assessment and 
consideration of the particular request for an accommodation. The 
Department's enforcement practices in this area reflect the broad 
scope of protections and protected persons under the ADA. 

The Department's recent revisions to the regulations on testing 
accommodations reflect the experience and past enforcement history in 
this area and will guide future enforcement. In guidance to the 
regulation, at 28 C.F.R. Part 36, Appendix A, the Department explained 
that, through its enforcement work, it had determined that testing 
entities were routinely making common errors in reviewing 
accommodations requests. The revised regulation and accompanying 
guidance clarified the requirements in ways that should lead to fewer 
misinterpretations of the requirements, more compliance with the ADA, 
and less discrimination in testing. 

First, the revised rule requires that documentation requests by 
testing entities must be reasonable and limited to the need for the 
modification, accommodation, or auxiliary aid or service requested. 
Generally, a testing entity should accept without further inquiry 
documentation provided by a qualified professional who has made an 
individualized assessment of the applicant. Second, the Department 
added regulatory language at 28 C.F.R. § 36.309(b)(1)(v) that provides 
that testing entities shall give considerable weight to documentation 
of past modifications, accommodations, or auxiliary aids or services 
received in similar testing situations as well as such modifications, 
accommodations, or related aids and services provided in response to 
an Individualized Education Program (IEP) provided under the
Individuals with Disabilities Education Act (IDEA) or a plan providing 
services pursuant to section 504 of the Rehabilitation Act of 1973, as 
amended (often referred to as a Section 504 Plan). The guidance to the 
revised regulation clarifies that an applicant's past use of a 
particular modification, accommodation, or auxiliary aid or service in 
a similar testing setting or pursuant to an educational plan provides 
critical information in determining those examination modifications 
that would be applicable in a given circumstance. And third, the 
revised regulation adds language at 28 C.F.R. § 36.309(b)(1)(vi) that 
requires testing entities to respond in a timely manner to requests 
for testing accommodations. 

GAO's report recommends to the Attorney General that the Department 
take steps to develop a strategic approach to target its enforcement 
efforts related to testing accommodations, such as: (1) analyzing its 
complaint and case data to prioritize enforcement and technical 
assistance, (2) working with the Secretaries of Education and HHS to 
develop a formal coordination strategy; and (3) updating technical 
assistance materials to reflect current requirements. We will address 
each point of the recommendation separately. 

(1) Analyzing complaint and case data to prioritize enforcement and 
technical assistance. 

The Department agrees that analysis of complaints and data is 
important in determining priorities for enforcement and technical 
assistance, especially in an era of diminishing enforcement budgets. 
The Department utilizes complaint and case data at all stages of our 
work, and the decision about pursuing a particular complaint is always 
made in the context of an evaluation of ongoing and prior work and 
dedicated resources. In addition, we evaluate the volume and nature of 
complaints submitted to the Department, obtain advice from experts 
about the nature of testing and discrimination, and review evidence 
gathered independently through compliance reviews or investigations. 
We also recognize the need for a record of the data from 
investigations and cases that have been completed and we are looking 
at ways to improve recordkeeping related to enforcement in this area. 

We will continue to analyze all available sources of data to educate 
our decisions about enforcement in this important area of the law. The 
most reliable way to evaluate whether a testing entity is complying 
with the law is to study the entity's decisions on requests for 
testing accommodations and determinations regarding the existence of 
disability. Testing entities often have policies that on their face 
appear consistent with the ADA. It is in the application of policies, 
and decisions about particular requests for testing accommodations 
that non-compliance with the law is most likely to be found. To date, 
such review has been largely conducted through individual complaint 
review or monitoring of settlement agreements with particular testing 
entities. As noted in the GAO Report, the ADA also grants the Attorney 
General authority under the ADA to conduct compliance reviews of 
covered entities. This authority provides a statutory platform for 
systemic review of testing entities' policies and practices; however, 
the efficacy and impact of such reviews would be greatly enhanced if 
the Department's ADA enforcement activities were supported by 
administrative subpoena authority granted by Congress. Such authority 
would increase both the quantity and validity of data provided by 
testing entities for review by the Department. As a consequence, 
targeted enforcement, technical assistance, and outreach strategies 
recommended in this Report would likely result. 

(2) Working with the Secretaries of Education and Health and Human 
Services to develop a formal coordination strategy. 

The Department agrees with this recommendation and will pursue 
discussions with both the Department of Education and the Department 
of Health and Human Services on the investigation and resolution of 
complaints about testing accommodations. This will further advance our 
ability to identify trends in types of issues being encountered by 
individuals with disabilities in testing. 

(3) Updating technical assistance materials to reflect current 
requirements. 

The Department issued revised regulations on testing accommodations 
and guidance explaining the regulations in July 2010. The Department 
has also recently submitted a Statement of Interest in federal court 
setting out its views in the area. See Jones v. National Conference of
Bar Examiners. No. 5-11-cv-174 (D. Vt. July 20, 2011). In addition to 
its recent enforcement efforts and guidance, the Department places a 
high priority on providing technical assistance and provides 
individual responses to anyone seeking information through the ADA 
Information Line that is staffed with ADA Specialists during business 
hours, Monday through Friday. In addition, the Department routinely 
provides attorneys and other Department representatives to appear at
meetings, conferences and events. Finally, the Department provides all 
varieties of technical assistance on its web page, www.ada.gov. which 
serves over 11 million visitors per year. Even with the variety of 
resources already available, the Department agrees with this 
recommendation and will develop additional technical assistance on 
testing accommodations in the near future to be provided on our 
website in an accessible format. Among areas of technical assistance the
Department is considering are test takers' use of emerging 
technologies, test score flagging, and requirements by testing 
entities regarding recency of expert evaluation material and 
documentation. 

The Civil Rights Division continues to make ADA enforcement in the 
area of testing accommodations a high priority and we continue to open 
new matters. Our work in this area has expanded in the past two years 
with dedicated staff working closely with highly trained experts to 
expand ADA compliance and to ensure that persons with disabilities are 
provided the opportunity to demonstrate their abilities on each 
examination or test. 

The data collected from testing entities for the GAO Report suggests 
that testing entities are providing accommodations in many cases. The 
task before the Department is to assure that the accommodations being 
provided best ensure the ability of the test takers to demonstrate 
their aptitude and achievement in a particular area rather than their 
disabilities. It is extremely important that testing entities provide 
testing accommodations that meet the requirements of the law, that 
such entities do not make burdensome demands for documentation beyond 
what is necessary to establish a disability or the need for the 
requested accommodation, that testing entities give considerable 
weight to an individual's past history of testing accommodations in 
similar examination contexts or as set out in IEPs or 504 plans, and 
that decisions on accommodations requests are made on a timely basis 
so as not to discriminate by delaying an opportunity for a person with 
a disability to take an examination with her peers or classmates. 

Thank you again for the opportunity to participate in your review of 
this important area of law. We share with you the goal of protecting 
the rights of students with disabilities to testing accommodations and 
look forward to further successful enforcement in this area. 

Sincerely, 

Signed by: 

Eve L. Hill: 
Senior Counselor to the Assistant Attorney General: 

[End of section] 

Appendix III: Comments from the Department of Education: 

United States Department of Education: 
Office of Special Education and Rehabilitative Services: 
The Assistant Secretary: 
400 Maryland Ave. S.W.
Washington, DC 20202-2500: 
[hyperlink, http://www.ed.gov] 

November 7, 2011: 

Mr. George Scott: 
Director, Education, Workforce and Income Security Issues: 
Government Accountability Office: 
441 G Street NW: 
Washington, DC 20548: 

Dear Mr. Scott: 

I am writing in response to your request for comments on the draft 
Government Accountability Office (GAO) report titled, "Higher 
Education and Disability: Improved Federal Enforcement Needed to 
Better Protect Students' Rights to Testing Accommodations" (GAO-12-
40). I appreciate the opportunity to comment on the draft report on 
behalf of the U.S. Department of Education (the Department). The 
subject matter of the report spans the programmatic interests and 
responsibilities of several offices of the Department and our response 
reflects input from those offices. 

An important goal for the Department is the facilitation of 
programming that enables students with disabilities to transition 
successfully from secondary education to postsecondary education. 
Equitable access to tests, including testing accommodations for 
entrance into and progress in higher education, has a direct bearing 
on the ability of students with disabilities to achieve a successful 
transition. In addition, the President has set a goal for the United 
States to lead the world in college completion. Meeting this goal 
requires equitable access to the tests for all students, including 
testing accommodations for students with disabilities, so that they 
may accurately demonstrate their knowledge and achievement, and, thus, 
enter and progress in higher education. 

The draft report contains a single recommendation for Executive 
action, to the Attorney General. The recommendation has three parts. 
The second part calls for the Department of Justice (DOJ) to work with 
the Department to develop a formal coordination strategy for 
enforcement efforts related to testing accommodations. The Department 
intends to work with DOJ to coordinate efforts in connection with our 
very important mutual goal of ensuring equity in testing for all 
students, including students with disabilities, consistent with the 
laws we enforce. The Department appreciates GAO's work in this area. 

Sincerely, 

Signed by: 

Alexa Posny, Ph.D. 
 
[End of section] 

Appendix IV: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

George A. Scott, Director, (202) 512-7215, or scottg@gao.gov: 

Staff Acknowledgments: 

In addition to the individual above, Debra Prescott (Assistant 
Director), Anjali Tekchandani (Analyst-in-Charge), Jennifer Cook, 
Nisha Hazra, and Justine Lazaro made significant contributions to this 
report. Jean McSween provided methodological support; Jessica Botsford 
provided legal support; Susan Bernstein assisted in report 
development; and Mimi Nguyen assisted with graphics. 

[End of section] 

Footnotes: 

[1] 42 U.S.C. § 12101 et seq. 

[2] Undergraduate admissions tests include the ACT and SAT. Graduate 
and professional admissions tests include: the GRE, Graduate 
Management Admission Test (GMAT), Law School Admission Test (LSAT), 
Medical College Admission Test (MCAT), and the Pharmacy College 
Admission Test (PCAT). Professional certification tests include: the 
Multistate Professional Responsibility Examination (MPRE), the North 
American Pharmacist Licensure Examination (NAPLEX), the PRAXIS Series 
(PRAXIS), and the United States Medical Licensing Examination (USMLE). 

[3] 29 U.S.C. § 794. 

[4] 42 U.S.C. § 12189. Section 309 is found in Title III of the ADA, 
which prohibits discrimination by private entities owning, leasing, or 
operating places of public accommodation. Justice has stated, however, 
that section 309, with its reference to "any person" that offers 
examinations, applies to both public and private entities. See 
Nondiscrimination on the Basis of Disability in State and Local 
Government Services, 75 Fed. Reg. 56,164, 56,236 (Sept. 15, 2010) 
(codified at 28 C.F.R. pt. 35, app. A). Public entities are also 
subject to Title II of the ADA, which prohibits discrimination by 
state and local government in services, programs, or activities, 
including examinations offered by public entities. However, our review 
focused on private testing companies. 

[5] Nonfederal entities, including testing companies, can receive 
federal financial assistance through a variety of arrangements such as 
grants, loans, and cooperative agreements. Federal financial 
assistance does not include procurement contracts. 

[6] 42 U.S.C. § 12102 and 29 U.S.C. § 705(20)(B). 

[7] Education's Section 504 regulations are codified at 34 C.F.R. part 
104, and HHS's Section 504 regulations are codified at 45 C.F.R. part 
84. 

[8] Pub. L. No. 110-325, 122 Stat. 3553 (2008). 

[9] The EEOC enforces Title I of the ADA, which prohibits 
discrimination in employment. 

[10] 76 Fed. Reg. 16,978. While Section 6 of the ADAAA made clear that 
the authority to issue regulations granted to agencies implementing 
the ADA includes authority to issue regulations regarding the 
definition of disability, Justice has not addressed the term 
"substantially limits" in regulations since the enactment of the ADAAA 
although it has stated that it intends to do so. 75 Fed. Reg. 56,236, 
56,237 (Sept.15, 2010). 

[11] 29 C.F.R. § 1630.2(j). 

[12] In the appendix to Part 1630, the EEOC discussed condition, 
manner, or duration and stated that "thus, someone with a learning 
disability may achieve a high level of academic success, but may 
nevertheless be substantially limited in the major life activity of 
learning because of the additional time or effort he or she must spend 
to read, write or learn compared to most people in the general 
population. As Congress emphasized in passing the Amendments Act, 
'when considering the condition, manner, or duration in which an 
individual with a specific learning disability performs a major life 
activity, it is critical to reject the assumption that an individual 
who has performed well academically cannot be substantially limited in 
activities such as learning, reading, writing, thinking, or speaking.' 
2008 Senate Statement of Managers at 8." 76 Fed. Reg. 16,978 at 17,012-
17,013. 

[13] 56 Fed. Reg. 35,544, 35,572 (July 26, 1991) (codified at 28 
C.F.R. § 36.309). 

[14] 28 C.F.R. § 36.309(b)(3). 

[15] 75 Fed. Reg. 56,236, 56,255 (Sept. 15, 2010). These provisions, 
which became effective on March 15, 2011, are codified at 28 C.F.R. §§ 
36.309(b)(1)(iv), (b)(1)(v) and (b)(1)(vi). 

[16] Enyart v. National Conference of Bar Examiners, Inc., 630 F.3d 
1153 (2011). On October 3 the U.S. Supreme Court denied NCBE's request 
that it review the Court of Appeals decision. On October 24, 2011 the 
U.S. District Court for the Northern District of California ordered 
NCBE to provide Ms. Enyart with the screen reading and screen 
magnification software which the court found met the best ensure 
standard. 2011 WL 5037977. 

[17] A number of federal district courts have followed the Ninth 
Circuit's approach. See Elder v. National Conference of Bar Examiners, 
2011 WL 672662 (N.D. Cal., Feb. 16, 2011); Bonnette v. District of 
Columbia Court of Appeals, et al., 2011 WL 2714896 (D.D.C., July 13, 
2011) and Jones v. National Conference of Bar Examiners, 2011 WL 
3321507 (D.Vt., Aug. 2, 2011). Justice filed a statement of interest 
in the Elder and Jones cases, endorsing the Enyart decision and 
stating that the appropriate standard under which to evaluate 
accommodations is the "best ensure" standard rather than a 
"reasonableness" standard. 

[18] Data on accommodations requested pertain to 7 of the 10 tests for 
which we received data: GRE, MCAT, MPRE, NAPLEX, PRAXIS, SAT, and 
USMLE. Data on accommodations granted pertain to 9 of the 10 tests for 
which we received data: ACT, GMAT, GRE, MCAT, MPRE, NAPLEX, PRAXIS, 
SAT, and USMLE. Accommodations may have been requested in a different 
year from which they were granted. 

[19] We received data about the number of test takers that took the 
exam with an accommodation for nine tests: ACT, GMAT, GRE, MPRE, 
NAPLEX, PCAT, PRAXIS, SAT, and USMLE. We did not receive data on the 
number of test takers that took the MCAT with an accommodation. 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. Testing companies 
provided data on the most recent testing year for which they had data; 
however, this time period may vary across testing companies. 

[20] Data on accommodations requested by disability pertain to 5 of 
the 10 tests for which we received data: GRE, MPRE, NAPLEX, PRAXIS, 
and SAT. Data on accommodations granted by disability pertain to 6 of 
the 10 tests for which we received data: GMAT, GRE, MPRE, NAPLEX, 
PRAXIS, and SAT. Accommodations may have been requested in a different 
year from which they were granted. These numbers may not include 
individuals who identified as having multiple disabilities. 

[21] More specifically, officials can either use a school verification 
process to verify that the student's disability and accompanying 
documentation meet the testing company's guidelines for the requested 
accommodation or submit a copy of the documentation as well. 

[22] GAO, Higher Education and Disability: Education Needs a 
Coordinated Approach to Improve its Assistance to Schools in 
Supporting Students, [hyperlink, 
http://www.gao.gov/products/GAO-10-33] (Washington, D.C.: Oct. 28, 
2009). 

[23] Only one testing company participating in our study employs a 
school verification process similar to the one high school officials 
can use to help students apply for accommodations. 

[24] EEOC's regulations implementing the equal employment provisions 
of the ADAAA state that an impairment is a disability within the 
meaning of the ADA if the impairment substantially limits the ability 
of an individual to perform a major life activity "as compared to most 
people in the general population." 29 C.F.R. § 1630.2(j)(1)(ii). The 
previous version of the regulations referred to the "average person in 
the general population." 

[25] Justice added three new provisions. The first states that 
documentation requested by a testing entity must be reasonable and 
limited to the need for the accommodation. The second states that a 
testing entity should give considerable weight to documentation of 
past accommodations received in similar testing situations, as well as 
those provided under an IEP or Section 504 plan. The third provides 
that a testing entity must respond to requests for accommodation in a 
timely manner. 75 Fed. Reg. 56,236, 56,255 (Sept. 15, 2010). 

[26] 75 Fed. Reg. 56,236 at 56,297-56,298 (28 C.F.R. pt. 36, app. A). 

[27] 75 Fed. Reg. 56,236 at 56,298. 

[28] The six tests for which we received data included the GRE, 
PRAXIS, PCAT, SAT, MPRE, and NAPLEX. Testing companies reported the 
total number of accommodations requested in the most recent testing 
year and, of that number, the total granted. 

[29] Numerous studies have addressed the effect of testing 
accommodations on the performance of students with disabilities, and 
results have varied. See S. G. Sireci, S. Li, and S. Scarpati. The 
Effects of Test Accommodation on Test Performance: A Review of the 
Literature (Research Report 485) (Amherst, MA: Center for Educational 
Assessment: 2003). 

[30] In this report, we will refer to what Justice considers "citizen 
complaints" as "complaints." 

[31] 42 U.S.C. § 12188. 

[32] A "citizen complaint" (or "citizen mail") is defined as a 
correspondence containing allegations that has been: (1) submitted to 
Justice by an individual or entity on behalf of an individual and (2) 
assigned an identification number in the Correspondence Tracking 
System. A matter is defined as an activity that has been assigned an 
identification number in the Interactive Case Management system but 
has not resulted in the filing of a complaint, indictment, or 
information in court--for example, the investigation of a complaint or 
an allegation of discrimination. Justice has closed matters related to 
testing accommodations through settlement agreements. A case is 
defined as an activity that has been assigned an identification number 
that has resulted in the filing of a complaint, indictment, or 
information in court. To date, Justice has not fully litigated any 
testing accommodations cases, but Justice reported that it has 
obtained consent decrees from federal courts on this subject. 

[33] Justice identified 24 additional closed complaints that are not 
included in the total. We determined that 12 of these complaints were 
not relevant to the scope of our study based on a review of the 
complaint files, and we were unable to determine whether 12 complaints 
were relevant to our scope because Justice could not locate the 
complaint files. 

[34] Justice identified an additional matter regarding one of the 
testing companies included in our study. However, we were unable to 
review the paper files associated with this matter because it was not 
closed at the time of our review. The matter resulted in a settlement 
in September 2011. 

[35] Complaints must generally be filed within filed within 180 days 
of the date the alleged discrimination occurred. 

[36] For each of these complaints, Education referred the complaint 
directly to Justice or advised the complainant to contact Justice 
regarding the complaint. 

[37] 42 U.S.C. § 12186(b) requires Justice to issues regulations for 
Title III of the ADA. 

[38] 73 Fed. Reg. 34,508 (June 17, 2008). 

[39] 75 Fed. Reg. 56,236. 

[40] 28 C.F.R. pt. 36, app. A. 

[41] See Elder v. National Conference of Bar Examiners, 2011 WL 672662 
(N.D. Cal., Feb. 16, 2011) and Jones v. National Conference of Bar 
Examiners, 2011 WL 3321507 (D.Vt., Aug. 2, 2011). 

[42] 42 U.S.C. § 12188(b). 

[43] 42 U.S.C. § 12206 authorizes Justice to issue technical 
assistance under Title III of the ADA. 

[44] For example, in responding to our data request, the College Board 
noted that there may be up to a 2 percent variance in the numbers 
reported compared with actual numbers due to the data systems used to 
respond to the request. NBME's data on the types of accommodations 
requested and granted include some data on personal item exceptions, 
such as food and medical devices, which NBME does not consider to be 
accommodations. In addition, NBME did not provide data on all types of 
accommodations for which requests were made and granted. 

[End of section] 

GAO’s Mission: 

The Government Accountability Office, the audit, evaluation, and 
investigative arm of Congress, exists to support Congress in meeting 
its constitutional responsibilities and to help improve the 
performance and accountability of the federal government for the 
American people. GAO examines the use of public funds; evaluates 
federal programs and policies; and provides analyses, recommendations, 
and other assistance to help Congress make informed oversight, policy, 
and funding decisions. GAO’s commitment to good government is 
reflected in its core values of accountability, integrity, and 
reliability. 

Obtaining Copies of GAO Reports and Testimony: 

The fastest and easiest way to obtain copies of GAO documents at no 
cost is through GAO’s website [hyperlink, http://www.gao.gov]. Each 
weekday afternoon, GAO posts on its website newly released reports, 
testimony, and correspondence. To have GAO e mail you a list of newly 
posted products, go to [hyperlink, http://www.gao.gov] and select “E-
mail Updates.” 

Order by Phone: 

The price of each GAO publication reflects GAO’s actual cost of 
production and distribution and depends on the number of pages in the 
publication and whether the publication is printed in color or black 
and white. Pricing and ordering information is posted on GAO’s 
website, [hyperlink, http://www.gao.gov/ordering.htm]. 

Place orders by calling (202) 512-6000, toll free (866) 801-7077, or 
TDD (202) 512-2537. 

Orders may be paid for using American Express, Discover Card, 
MasterCard, Visa, check, or money order. Call for additional 
information. 

Connect with GAO: 

Connect with GAO on facebook, flickr, twitter, and YouTube.
Subscribe to our RSS Feeds or E mail Updates. Listen to our Podcasts.
Visit GAO on the web at [hyperlink, http://www.gao.gov]. 

To Report Fraud, Waste, and Abuse in Federal Programs: 

Contact: 
Website: [hyperlink, http://www.gao.gov/fraudnet/fraudnet.htm]; 
E-mail: fraudnet@gao.gov; 
Automated answering system: (800) 424-5454 or (202) 512-7470. 

Congressional Relations: 

Ralph Dawn, Managing Director, dawnr@gao.gov, (202) 512-4400
U.S. Government Accountability Office, 441 G Street NW, Room 7125
Washington, DC 20548. 

Public Affairs: 
Chuck Young, Managing Director, youngc1@gao.gov, (202) 512-4800
U.S. Government Accountability Office, 441 G Street NW, Room 7149 
Washington, DC 20548.