### I NITIAL 

### R EGULATORY 

### A SSESSMENT



### N OTICE OF 

### P ROPOSED 

### R ULEMAKING



### A MENDMENT OF 

### A MERICANS WITH 

### D ISABILITIES 

### A CT 

### T ITLE 

### II AND 

### T ITLE 

### III

R EGULATIONS

TO 

### I MPLEMENT 

### ADA A MENDMENTS 

### A CT OF 

### 2008

U NITED 

### S TATES 

### D EPARTMENT OF 

### J USTICE


### C IVIL 

### R IGHTS 

### D IVISION


### D ISABILITY 

### R IGHTS 

### S ECTION


### 1425 N EW 

### Y ORK 

### A VENUE



### , N.W.

W ASHINGTON



### , D.C. 20005

[ J ANUARY 

### 24, 2014 ]TABLE OF CONTENT S

I. INTRODUCTION

................................ ................................ ................................ ................... 1

II. REGULATORY ASSESSMENT

................................ ................................ ........................ 2

A. Cost Assessment

................................ ................................ ................................ .................. 4

B. Assumptions and Data Used for Analysis

................................ ................................ ......... 14

1. General Data

................................ ................................ ................................ ................... 14

2. Accommodations Requested

................................ ................................ .......................... 15

3. Online Learning

................................ ................................ ................................ .............. 17

4. National Examinations

................................ ................................ ................................ ... 18

C. Benefits

................................ ................................ ................................ ........................... 19

TABLES

Table 1 : Total Costs Summary ( $ mi llions)............................................................

.... 8

Table 2 : Cost Estima tion Details

............ ............................................................9

- 10

Table 3 : Percentage Distribution of Main Type of Disability among Postsecondary (Undergraduate) Students with Disabilities, 2000 , 2004 and 2008....................................11

Table 4 : Exam Procto r Cost Data

.. ........................................................................12

Table 5 : Testing Accommodations Request ed and Gr anted

, by Request Type......................13

Table 6 : Testing Accommodations Requested and Granted, by Primary Disability Type........ ..14

Table 7 : Number of Postsecondary Students who are Enrolled in Distance Education

Course and Distance Education Program.................................................................14

Table 8 : National Examination Test Taker s Statistics............ .................................15

- 161

I. INTRODUCTION

Congress enacted the Americans with Disabilities Act (ADA) Amendments Act of 2008 to revise the ADA definition of disability and to ensure that the definition is broadly construed and can be applied without extensive a nalysis. The ADA Amendments Act took effect on January 1, 2009. Section 506 of the ADA Amendments Act authorizes the Attorney General to issue regulations implementing the definitions of disability in sections 3 and 4 of the Act, including the rules of c onstruction in section 3. The law has been in effect for four years, and covered entities have been required to comply with the new requirements since it took effect. Regulations issued under this authority explain the statutory changes and provide addit ional guidance to regulated entities. The regulations themselves do not include any additional requirements; they merely implement the ADA Amendments Act as written.

The ADA Amendments Act’s revisions to the ADA apply to titles I (employment), II (s tate and local governments), and III (public accommodations). On March 25, 2011, the Equal Employment Opportunity Commission (EEOC) published its final rule implementing the ADA

Amendments Act for title I. T o promote consistency in the application of tit les I, II, and III of the ADA, and to prevent confusion among entities subject to both title I and either title II or III

, the Department is proposing, wherever possible, to adopt regulatory language for titles II and III

that is identical to the revisions to the EEOC’s title I regulations implementing the ADA Amendments Act. This approach promotes the “coordination across agencies” that Executive Order 13563 encourages in order to simplify and harmonize requirements. Because many title II

and title III e ntities are also subject to title I, this harmonization is essential.

The impact of the regulatory revisions mandated by the ADA Amendments Act will be largely felt in the employment (title I) context , as discussed in the EEOC’s regulatory impact analysi s. W ith respect to titles II and III, the impact in terms of cost is nowhere near as great ( i.e.

, is not economically significant).

First, although the ADA Amendments Act was expected to have an impact on a broad range of individuals with disabilities who were seeking reasonable accommodations in employment under title I, among individuals with disabilities challenging discrimination under titles II and III of the ADA, the only group Congress identified in the legislative history were persons with learn ing disabilities requiring testing accommodations from higher educational institutions and testing entities. 1 Congress was concerned about the number of individuals with learning disabilities who were denied testing accommodations (usually extra time) bec ause covered entities claimed these individuals did not have disabilities covered by the ADA.

Second, a review of the case law and the Department’s enforcement experience in the years since the Supreme Court’s decision in Sutton shows that defendants ra rely challenged whether plaintiffs had legally protected disabilities in title II and title III cases, except in cases

1 S ee H.R. R EP

. N O . 110

- 730 pt. 1, at 10

- 11 (2008). See also 154 C ONG

. R EC

. S8842 (daily ed. Sept. 16, 2008).2

involving learning disabilities in education and testing accommodations. 2 Aside from higher education and testing entities 3

, the Departm ent’s research has not identified any other title II or

title III entities that are purporting to be impacted in a significant way by changes made by the

ADA Amendments Act. The Department requests public comments on whether the changes made by the ADA Am endments Act to titles II and III and that are addressed in the proposed rule

would have benefits or costs in other areas besides additional time for post

- secondary students with ADD and learning disabilities to take tests, and additional time for individu als with ADD and learning disabilities to take national exams. The Department also requests information to help it estimate the benefits and costs in these areas.

Third, even in the context of education and testing, although the ADA Amendments Act

has be en in effect for four years, the Department’s research has not identified information or data in the literature or on trade association websites suggesting that these covered entities have actually incurred significant costs as a result of implementing the statutory requirements of the

ADA Amendments Act.

The following analysis calculates the estimated costs associated with the incremental

increase in testing accommodations under the revised definition of disability and discusses the

associated benefits

.

II. REGULATORY ASSESSMENT

Executive Order 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with obtai ning the regulatory objectives; and, in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. Executive Order 13563 recognizes that some benefits and costs are difficult to quantify and provides that,

where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.

Executive Order 12866 require s federal agencies to submit “significant regulatory action[s]” to the Office of Management and Budget (OMB) for interagency review. For the category of significant regulatory actions that are “economically significant,” EO 12866 further requires agencies to submit to OMB an a ssessment of the planned regulation’s benefits and costs

,

2 See, e.g.

, Price v. National Board of Medical Examiners , 966 F. Supp. 419, (S.D.W. Va. 1997); Gonzales v. National Board of Medical Examiners , 60 F. Supp. 2d 703 (E.D. Mich. 1999); and Wong v. Regents of University of California

, 410 F.3d 1052 (9th Cir. 2005).

3 T he Department does not believe that there are significant additional costs for providing extended time for testing

for students in kinder garten through grade 12 as the result of the ADA Amendments Act for two reasons. First, the vast majority of these students are already receiving a range of classroom accommodations including extended time for testing pursuant to the Individuals with Disa bilities Education Act (IDEA) 20 U.S.C. 1400 (2004)

, which provides funds to school districts to support the education o f children with disabilities. Second, t o the extent that

there are non

- IDEA students in kindergarten through grade 12 who will receive additional classroom modifications (extended time for testing) as a result of the application of the ADA Amendments Act, the Department believes that schools will not incur significant additional costs because the extra time will be supervised by the stude nt’s teachers or other existing school personnel3

as well as the benefits and costs of potentially effective and reasonably feasible alternatives.

“ E conomically significant ” regulations are defined by EO 12866 as those actions that have:

an a nnual effect on the economy of $100 million or more o r adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities

.

Exec. Order No. 12866, 58 Fed. Reg. 51,735 (Oct. 4, 1993).

The proposed changes to the titles II and III regulations merely implement the statutory changes that have been in effect since 2009. Because this proposed rule would

no t have any benefits or costs beyond those already provided by the ADA Amendments Act, i n accordance with OMB Circular A

- 4, the Department uses a pre

- ADA

Amendments Act baseline to estimate the incremental benefits and costs of this proposed

rule. 4 The data used to support these estimates focus on (1) the increase in the number of students requesting and receiving testing accommodations under the new revisions, and (2) the actual cost of the testing accommodation s , which involves additional proctor time

and any additional trainin g , if needed, for those offices with in post

- secondary institutions and national testing companies that manage requests from students with disabilities

.

Using a pre

- ADA Amendments Act baseline, the Department estimates that revising the definition of dis ability under title II and title III of the ADA is expected to

cost $ 382 million over 10 years discounted at 7 percent. 5 The benefits of the revisions to the definition of disability under titles II and III of the ADA made by the ADA

Amendments Act inclu de greater equity and fairness for students with certain disabilities as well as an increased likelihood that some will achieve their degree or license sooner than they otherwise would have, and even the possibility that some number would now be able to ge t a degree or license that they otherwise would not have.

4 Of fice of Management and Budget

, “OMB Circular A

- 4

, ” ( September 17, 2003 ), available at http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/a

- 4.pdf

. 5 This assumes that post

- s econdary student enrollment and the number of national exam takers grows annually at the rates reflecting the Department of Education’s forecasts for years 2012 through 2021, and that annual rates of growth from 2021 to 2023 remain steady (at the 2020

- 2021 rate of growth). See U.S. Department of Education, National Center for Education Statistics, Higher Education General Information Survey (HEGIS), “Fall Enrollment in Colleges and Universities” surveys, 1970 through 1985; Integrated Postsecondary Educatio n Data System (IPEDS), “Fall Enrollment Survey” (IPEDS

- EF:90

- 99), and Spring 2001 through Spring 2011, Enrollment component; and Enrollment in Degree

- Granting Institutions Model, 1980

– 2010 summarized on U.S. Department of Education, National Center for Edu cation Statistics Web page titled “Undergraduate Enrollment,” available at http://nces.ed.gov/programs/coe/indicator_cha.asp (last visited Dec. 16, 2013)

.4

A. Cost Assessment

As the Final Rule and accompanying RIA prepared by the EEOC noted, robust data are not readily available on the actual numbers of persons who would be covered by the ADA due to the ADA Amendments Act, and the actual additional costs of accommodations. Nevertheless, some general cost estimates can be made using existing data. The Department estimates that the

total cost of the changes made by the ADA Amendments Act to title s II and III

, and which are

addressed in this proposed rule

, will range between $3 6. 2 and $ 6 1. 8 million in the first year (which is the year with the highest costs, because the potential costs of revising training procedures for staff who assess requests from s tudents with disabilities are likely only incurred during the first year) for students with learning disabilities and students with Attention Deficit Disorder or Attention Deficit Hyperactivity Disorder (collectively, “ADD”) , who would request

and receive testing accommodation s and would not have received accommodations but for implementation of the ADA Amendments Act and the proposed regulations

.

This cost estimation includes several assumptions, including the following :

a) Seventy percent of persons who self identify as having ADD as their primary disability meet the legal definition of having a disability for which testing

accommodation must be made. 6
b) Fifty

- one percent of persons with learning disabilities and ADD (as a primary disability) are currentl y receiv ing testing accommodation s in post

- secondary schools

or on national exams

. 7 To account for uncertainty regarding the remaining students

who were not receiving accommodations but are eligible to receive them now

because of the ADA Amendments Act an d the proposed regulations

, we estimate the incremental effect of the revisions using a low (fifty percent), medium (seventy percent), and high (ninety percent) range

. c) In the vast majority of cases, the accommodation requested by students with learning

dis abilities and ADD involves extra test

- taking time. 8

6 Research suggests that a significant number of college students who self

- identify as having ADD may not meet the clinical definition of the disorder. One study estimates that as many as 50% of the students evaluated for ADD in a university setting may overstate their symptom s, Lindsey Jasinski and John Ranseen

, “Malingered ADHD

Evaluations: A Further Co mplication for Accommodation Reviews,” The Bar Examiner ( December 2011 ) , available

at http://www.ncbex.org/assets/media_files/Bar

- Examiner/articles/2011/800411JasinskiRanseen.pdf (last visited Dec. 10, 2103 ). Recent news reports have noted the increased d emand for ADHD medications, which are

stimulan ts, among students without ADHD

. S ee e.g. , Alan Schwarz, “Attention

- Deficit Drugs Face New Campus Rules, ” New York Times ( April 30, 2013 ), available at http://www.nytimes.com/2013/05/01/us/colleges

- tackle

ill icit

- use

- of

- adhd

- pills.html (last visited Dec. 10, 2013) . For this analysis we assumed that 30% of those who s elf

identify as having ADD as their primary disability would not need additional testing time (or that 70% would).

7 Vickers, Melana Zyla, “ Acco mmodating College Students with Learning Disabi lities: ADD, ADHD, and Dyslexia,” Pope Ce nter Series on Higher Education ( 2010 ), available at http://www.popecenter.org/inquiry_papers/article.html?id=2322 (last visited Dec. 10, 2013).

8 A 2011 GAO report rep orted that 79 percent of accommodations requests (across all disabilities) are related to either extra time or extended breaks. U.S. Government Accountability Office , “ H igher Education and Disability: Improved Federal Enforcement Needed to Better Protect Students ’ R ights to Testing Accommodations” (GAO

- 12

- 40) ( November 2011 )

, available at http://www.gao.gov/products/GAO

- 12

- 40 (last visited Dec. 10, 2013).5

d) All students enrolled in a physical location for studies take all their courses in physical classrooms . This assumption likely overstates the rate of tests taken in a timed setting at school; the Departm ent of Education reported that in 2008, 20.4 percent of students participated in “distance education courses,” or online learning. 9
While some of these courses would require in

- person, timed examinations, it is likely

that some portion would not

.

The Department requests public comments on the above assumptions. Particularly, the Department seeks information on whether better sources of data are available or whether it should use a different methodology to estimate the benefits and costs of the changes to titles II

and III of the ADA made by the ADA Amendments Act

.

Our estimate of the cost of providing additional testing accommodation s as a result of the

ADA Amendments Act and the proposed regulations is developed from current data on the number of pos t

- secondary students (undergraduate and graduate), the portion of students with learning disabilities, the portion of students with ADD, the number of students participating in

online learning , the average hourly wage of teaching assistants and test procto rs 10 , and reasonable estimates of average test time, average course load, and average number of tests per

course. The Government Accountability Office (GAO) recently conducted extensive research on disability and education, and the analysis herein relies on much of the data collected in that report ( U.S. Government Accountability Office, Hi gher Education and Disability: Education Needs Coordinated Approach to Improve Assistance to Schools in Supporting Students (GAO

10

- 33) ( October 2009)

, available at http ://www.gao.gov/new.items/d1033.pdf (last visited Dec. 10, 2013) ) . The estimated costs are summarized in the tables below.

1. Post

- Secondary Institutions

The National Center for Education Statistics (NCES) reports there are an estimated 17.8 million pos t

- secondary students ( 201 0 11 ), which includes undergraduate and graduate students. This figure represents full

- time student equivalents, not enrolled students (the latter category includes part

- time students, and is therefore a larger number). The NCES als o reports that approximately 3. 7 % of those 17.8 million students are enrolled in online learning and that approximately 20.4% of students were taking online learning course(s). 12 T he 3. 7 % i s an estimate of the percent of all post

- secondary students who a re taking all their courses online . We

removed these students from our cost estimate because if their entire program is online, they are unlikely to have timed tests at a physical location

. We did not remove from our cost estimate the

students who are ta king only some online courses, which can be calculated as the difference

9 U.S. Department of Education, National Center for Education Statistics, 2003

– 04 and 2007

– 08 National Postsecondary Student Aid Study (NPSAS:04 and NPSAS:08)

, http://nces.ed.gov/pubs2006/2006180.pdf

, http://nces.ed.gov/pubs2011/2011188a.pdf (l ast visited Dec. 5, 2013 )

. 10 In our discussions with several universities, we found that their standard procedure was for teaching assistants or

other non

- salaried staff to proctor these tests. Therefore, we only incorporate the hourly wage in our cost analysis,
and not any employee benefits.

11 http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8530 (la st visited, Dec. 5, 2013).

12 http://nces.ed.gov/fastfacts/display.asp?id=80 (last visited Dec. 5, 2013).6

between the estimated 20 .4 % of students taking at least one course on line , less the 3. 7 % who

take all their courses online. I nstead, we treat these students the same for purposes of our analysis as we treat students taking all courses in physical classrooms , which likely overestimate the number of courses with timed tests at a physical location that we use in our estimate

. The Department requests public comment on whether our assump tion is correct that those in a post

secondary program where all classes are taken online do not take their tests in a physical location. We also request any information the public might have regarding whether online

- only

post

- secondary programs will incu r any costs that we have not accounted for as a result of incorporating the ADA Amendments Act’s revised definition of disability.

In 2008, approximately 10.8% of post

- seco ndary students reported having a disability.

Out of those 10.8% of students with a disability, 8.9% of those students reported having a “specific learning disability ” and 19.1% reported having ADD

. 13 Thus, out of the 10.8% of students with a disability, 28% of those students have a specific learning disability or ADD

. 14

Some research su ggests that this percentage may overestimate the proportion of students who

self

- identify as ADD and actually require accommodations due to a disability

. 15 As a result, the estimate of the percentage of students with ADD (as a primary disability) was reduc ed by 30%. 16
Therefore, the Department estimates that out of the 10.8% of students with a disability, 22.3% of those students have a specific learning disability or ADD.

Meanwhile, research suggests that prior to the enactment of the ADA Amendments Act,

51% of college students with a learning disability or ADD were already receiving

accommodations

. 17 To calculate the incremental cos ts of this proposed rule

, the remaining students with a learning disability or ADD (49%) who were not receiving accommodatio ns was used as a baseline to estimate the portion of students with disabilities who would now (and not previously) both seek and receive testing accommodations after the enactment of the ADA

Amendments Act and the proposed regulations

. Using a high, mediu m, and low cost scenario,

a n assumption was made that 50 to 90 percent of those who were not previously receiving

13 U.S. Government Accountability Office, “ Higher Education and Disability: Education Needs a Coordinated Approach to Improve Its Assistance to Scho ols in Supporting Students ,” Table 4 & 7 (GAO 10

- 33) ( October 2009 )

, available at http://www.gao.gov/new.items/d1033.pdf (last visited Dec. 10, 2013).

14 U.S. Government Accountability Office, Higher Education and Disability: Education Needs a Coordinated Approach to Improve Its Assistance to Schools in S upporting Students (GAO 10

- 33) ( October 2009 ) , available at http://www.gao.gov/new.items/d1033.pdf (last visited Dec. 10, 2013).

15 Researchers have estimated that nearly 25%

- 50% of students self

- identi fying as ADD may not necessarily meet the clinical definition of the disorder and would thus still not qualify for an accommodation under the revised definition of disability. Lindsey Jasinski and John Ranseen

, “Malingered ADHD Evaluations: A Further Comp lication for Accommodation Reviews,” The Bar Examiner ( December 2011 )

, available at http://www.ncbex.org/assets/media_files/Bar

- Examiner/articles/2011/800411JasinskiRanseen.pdf (last visited Dec. 10, 2103).

16 See supra , footnote 6

. 17 U.S. Department of Edu cation, Section 5

— Contexts of Postsecondary Education, in The Condition of Education (2003), “Services and Accommodations for Students With Disabilities,” Appendix I (Supplemental Tables), Ta ble

34

- 1, 160, available at nces.ed.gov/pubs2003/2003067.pdf as r eported in Melana Zyla Vickers, “ Accommodating College Students with Learning Disabilities: ADD, ADHD, and Dyslexia ,” The John William Pope Cent er for Higher Education Policy ( March 2010 ), available at http://www.popecenter.org/acrobat/vickers

- mar2010.pdf (last visited Dec. 10, 2013 ).7

accommodations would now request and receive testing accommodations for additional time

. A more detailed explanation of this approach is set forth below

.

The Department used a range to estimate the incremental change in the percentage of students with learning disabilities and ADD who would now request and receive

accommodations involving extra test

- taking time after the enactment of the ADA Amendments

Act and the proposed regulations

. These calculations proceeded with a low, medium, and high possible value for this unknown portion of students: 50.0%, 70.0% and 90.0%, respectively. The Department used a range because not all postsecondary students with learning disabilities or ADD who are eligible to receive testing accommodations actually request them. Some students may not want to identify themselves as having a disability and/or needing an accommodation. Other students may not have doc umentation of their disability at the time they request the accommodation, and they cannot afford to obtain the specific documentation requested by the testing entity. In addition, other students may have a disability, but not need that particular

accommo dation

. Finally , despite the changes made by the ADA Amendments Act, not all students in the affected population are necessarily eligible to receive testing accommodations. The Department is interested in comment on whether the ranges it is using are app ropriate or

whether it has overestimated the number of students who will now request testing

accommodations.

We thus estimate that between 101, 227 and 18 2

, 209 more post

- secondary students as a result of the revisions to the definition of disability will r equest and receive testing accommodations. That figure was calculated by multiplying 1 7

. 8 million post

- secondary students (NCES) by the percentage of students with disabilities, 10.8% (GAO 10

- 33), multiplied by the percentage of students with disabilities who have a learning disability and 70% of students

with ADD

, 22.3 % (GAO 10

- 33), reduced by the 51% already receiving accommodations and

the 3. 7 % of students taking courses fully online (NECS ) , and adjusting for the fact that either 50%, 70% or 90% of tho se impacted students would actually request testing accommodations

.

One GAO report noted that 59% of testing accommodation requests were for 50%

additional time and another 15% were for more than 50% additional time (GAO 12

- 40 : Higher

Education and Disa bility

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

, Nov ember 2011 ) . We thus conservatively assumed an average of 75% more time would accurately estimate the additional testing accommodation time

reque st ed for examinations in post

- secondary institutions

. 18 A brief review of the academic schedules for post

- secondary schools found that most undergraduate courses meet twice a week

for an hour and fifteen minutes or an hour and a half. Based on this inform ation, we assumed that the average test time would be the length of the average class session

– 1.5 hours. Thus

, we estimate 1.13 additional hours per test for each accommodation request

– 1.5 hours (average test time) multiplied by 75% (average additiona l testing time requested).

18 If 59% of takers requested 50% more time, and 15% of test takers requested 100% more time (double the time of other test takers), the average amount of time requested, on a per test taker basis, would be 60% more time. Th us, we believe that an estimate of 75% more time, on average, more than covers the likely net additional time requested

.8

Little to no data w ere found on the average number of exams/tests taken per post

secondary student. In this estimation, we assumed that the average full

- time equivalent student

takes a full

- time load of eight classes per year, with an average of 3 tests/quizzes per class (which includes some classes with no exams and some classes with several). Thus, we estimated that students will take approximately 24.0 exams/tests per year, on average, calculated as

follows: 8 classes per y ear multiplied by 3 tests per class (average)

. To be conservative, we

have not adjust ed for students who take a combination of online courses and physical classroom

course s . Multiplying 24.0 exams/tests per student per year by the average (estimated abov e) of

1.13 additional hours per testing accommodation request, yields an estimate of 2 7 .0 additional hours of test taking and proctor time needed per student per year, on average. The Department

seek s public comment on the reasonableness of these assumpti ons.

Multiplying the estimated number of students who as a result of the revisions to the definition of disability would now request and be granted testing accommodatio ns by the average additional time for testing accommodations per student per year, 2 7 .0 hours , by the average hourly wage of teaching assistants, $11.16 (BLS, Occupational Outlook Handbook, 2012

- 13 Edition), 19 yields an annual cost of testing accommodations in the post

- secondary education setting ranging between a low of $ 30. 5 million and a high of $ 54. 9 million

. We invite the public to comment on whether our reliance on the hourly wage of teaching assistants is appropriate in estimating the additional cost to entities to proctor the incremental increase in the number of

students who will b e receiving additional test taking time under the revised definition of disability.

As noted previously, our methodology likely overestimate s the actual costs for a variety

of reasons. For example, because there will sometimes be more than one student ne eding additional testing time during the administration of a given test, only one proctor would likely be

needed. Because of the inherent difficulties in accurately estimating when this will occur, we have calculated the costs to account for additional pr octor time for each individual student, regardless of whether more than one student needing additional time would be taking the same

test.

The Department believes institutions will experience some one

- time costs due to the institution’s disability service s center (or its equivalent) needing to update its policies and procedures to bring them in line with the changes made by the ADA Amendments Act (and the proposed regulations) and explaining those changes to the employees responsible for evaluating testing accommodation requests. We estimate that o ne

- time costs to adapt training and procedures will total $

3,510,500 , which is the result of multiplying the number of institutions affected, 7,021 (NCES 20 ), by $500 (assumed not to be higher than the costs of 5 h ours of management time, valued at $100 an hour ). We were not able to find estimates for the

incremental costs resulting from training employees within post

- secondary institutions who are

19 The $11.16 per hour was estimated from the median annual wage for teaching assistants of $23,220. U.S. Department of Labor

, Bureau o f Labor Statistics, Occupational Outlook Handbook, 2012

- 13 Edition, Teacher Assistants, available at http://www.bls.gov/ooh/education

- training

- and

- library/teacher

- assistants.htm(last visited Dec. 5, 2013). We distributed the annual wage over 52 weeks (40 hours) to translate it into an hourly comparable.

20 http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8460 (last visited, Dec. 5, 2013).9

responsible for assessing accommodation requests . We therefore use d an estimate of 5 hours at $100 per hour to calculate a very high

- level estimate of this cost, and are seeking public comment on these assumptions.

2. National Testing Entities

Using the same data as noted above, t he calculation of the estimate of ad ditional requests for testing accommodations in national examinations was made as follows: 9, 287,619 total

annual test takers of national exams (derived from GAO

- 12

- 40 and other sources , see Table 7 ), multiplied by the percentage of post

- secondary stu dent s with disabilities

, 10.8% (GAO 10

- 33 )

, multiplied by the percentage of students with disabilities who have learning disabilities and 70% of students with ADD, 22.3% (GAO 10

- 33), reduced by the 51% likely already receiving

accommodations yields approximate ly 109, 457 students previously not receiving testing

accommodations who now could. As calculated above, a low, medium, and high range was used (50%, 70%, 90% ) to represent the likely percentage of these additional students who , as a result

of the ADA Amen dments Act and proposed regulation s , would actually ask for and now receive a testing accommodation . This calculation leads to an estimate of between 54, 729 to 98, 512 additional requests that as a result of the revisions to the definition of disability wo uld be granted for testing accommodations during national examinations

. The Department has not found data detailing the distribution of persons with disabilities who take national exams, and therefore has used the data on post

- secondary students with disa bilities as a proxy on the assumption that the populations are similar (both are adults seeking additional education and degrees/certification). The Department is interested in any comments on the appropriateness of using this data and any

alternative sou rces of information that can be used.

The GAO report noted that 59% of testing accommodation requests are for 50%

additional time and another 15% are for more than 50% additional time (GAO 12

- 40) . We thus assumed an average of 75% more time would accurat ely estimate the additional testing

accommodation time request ed for national examinations

. 21 Data from the GAO report and licensing administrators find that these national examinations last anywhere from two to eight

hours. Averaging these test lengths

, weighted by the number of takers for each test , results in a weighted average test length of 3.54 hours. 22 The estimate of additional testing accommodation requests was multiplied by the average test length of 3.54 hours , and multiplied by 75% ( average add itional testing time needed ), and in turn multiplied by $10. 38

, which represents the average hourly wage for test proctors (based upon internet search es
, see Table 4 ), resulting in a range of

annual cost s between a low of $ 1.5 million and a high of $ 2.7 mi llion

.

Because our estimation of national exams and licensing tests is based on those which we could actively identify, it underestimates the likely number of actual test takers. We conducted sensitivity tests estimating what the incremental number of i mpacted test takers would be if the total number of persons sitting for all national examinations is actually 50% or 100% higher than

21 If 59% of takers requested 50% more time, and 15% of test takers requested 100% more time (double th e time of other test takers), the average amount of time requested, on a per test taker basis, would be 60% more time. Thus,

we believe that an estimate of 75% more time, on average, more than covers the likely net additional time requested

. 22 Because tes t length was not found for all types of national tests , this estimate of length may over

- or under

estimate the actual time.10

the number we identified. The resulting range s in annual costs increased to between $2.3 and $4.1 million (50% high er num ber of persons sitting for national exams) and between $3.0 and $5.4 million (double the number of persons sitting for national exams). We ask the public to provide any information that would help us refine our estimates on the number of national

examinati on test takers.

Although our analysis likely underestimates the number of test takers for national exams and licensing tests , we likely overestimate the actual costs per test taker for the specific national examinations included in the analysis

. As stat ed above, only one proctor would likely be needed

at one location , even though in some instances more than one student may be receiving

additional time

. With respect to national examinations, we know many persons with learning

disabilities or ADD were alr eady requesting and r eceiving extra test

- taking time as a testing

accommodation. Thus

, the companies that administer national examinations already employ and pay for additional testing proctors to proctor the examinations of those receiving additional tim e. The increase in the number of test

- takers who would now request and be granted additional test

taking time will likely be placed in the same room or location where the proctors were already monitoring students receiving additional time prior to the ADA Amendments Act. Yet, we have calculated the costs to account for additional proctor time for each individual test taker

, regardless of whether an additional proctor is needed because one is already provided to students previously requesting and receiving additional time.

One

- time costs to adapt training and procedures were estimated to total $698,500 , which is the result of multiplying the number of institutions affected, 1,397 (Census Bureau data for educational test development and evaluation services was used as a proxy), by $500 (assumed not to be higher than the costs of 5 hours management time, valued at $100 an hour). 23 Again, because the Department was unable to find any data on the costs associated with training, we invite public comment on the a ccuracy of our assumptions.

23 The Department believes that this one

- time cost per testing entity will entail the testing entity needing to update its policies and procedures for evaluating testing accommodation requests to bring them in line with the changes made by the ADA Amendments Act and explaining those changes to the employees responsible for evaluating testing accommodation requests.11

Table 1 : Total Estimated Costs in First Year Summary ( $ millions)


### Total Costs

Testing in Classes/Courses of Study in Post

- Secondary LOW MED HIGH

ANNUAL Total Cost for Coursework Tests and Examinations $30. 5 $42. 7 $54. 9

ONE TIME Cost for Additional Training at Institutions $3.5 $3.5 $3.5

National Examinations

ANNUAL Total Cost for National Examinations $1.5 $2.1 $2.7

ONE TIME Cost for Additional Training at Institutions $0.7 $0.7 $0.7

TOTAL* $36.2 $49.0 $6 1.8

* It should be noted that an assumption of 100% of all students who could now request a testing accommodation of

additional test

- taking time was evaluated and increases the total annual costs by 11.1%. However, it was deemed unrealistic that every in dividual with a learning disability or ADD who was not receiving a testing accommodation previously would now request and receive one

.12

Table 2 : Cost Estimation Details

P OST

- SECONDARY E DUCATION : ESTIMATE OF ADDITION AL STUDENTS W / LEARNING

DISABILITIES AND A TTENTION DEFICIT DI SORDER LIKELY TO REQUEST TE STING

ACCOMMODATION S Testing in Classes/Courses Post

- Secondary Education

Full

- time equivalent post

- secondary students (2010)* 17

, 838

, 619 ***

Percent of post

- secondary students with disabilities (2008) 10.8%

Percent of students w/disabilities that have either ( a) learning

disabilities , or ( b) Attention Deficit Disorder (ADD) (2008) 22.3%

Adjustment rate for online learning 3. 7 %

Percent of s tudent s with learning disabilities & ADD already

reques ting accommodations 51%

Total of Poten tial Students Who Could Request and Receive Testing Accommodation s 202,455

Range for Potential Students Who Do Request and Receive Testing Accommodation s 50% 70% 90%

Additional Students w/ Learning D isabilitie s and ADD L ikely to

R equest and Receive Testing A ccommodation s 101, 227 141, 718 18 2,209

Average Additional Time R equested (1.5 hrs x 75% extra) 1.1 25

Number of Exams/T ests

Avg # classes 8

Avg # test s 3

Avg Exa ms/Tests Per Student Per Y ear 24

Annual A dditio nal Time Per S tudent 27

Avg Hourly Wage for Teaching Assistants $11.16

Annual Additional Cost Per Student $301.41

Total Cost for Cour sework
, Tests
, and Examinations** $30, 511,265 $42, 715,771 $54 ,920,278

Additional Training in Institutions (disability services centers, etc.)

Number of Institutions 7,021

Incremental Cost per Institution (estimate) $500

ONE TIME Cost for Additional Training at Institutions $3,510 ,500

* Full

- time Equivalent in Public, Private not

- for

- profit, and Private for

- profit degree granting institutions. Source: U.S. Department of Education, National Center for Education Statistics, Integrated Postsecondary Education Data System (IPED S), Spring 2001 through Spring 2011.

** Details may not total to sums due to rounding.

*** http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8530 ; http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8460 (last visited Dec

. 5, 201 3).13

N ATIONAL E XAMINATIONS : ESTIMATE OF ADDITION AL STUDENTS W / LEARNING DISABILITIE S

AND ATTENTION DEFICIT DI SORDER LIKELY TO REQUEST TE STING ACCOMMODATION S

Annual Number of Test

- takers

MBE, MPRE, CPA, NAPLEX, PRAXIS (Sp eech Language Pathology), NCLEX RN, NCLEX PN, USMLE Step 1, US Medical Licensing Examination (USMLE) Step 2

– CK, USMLE Step 2

– CS, FE (Fundamentals of Engineering Exam), PE, ARE (Architect Registration Exam) SAT, ACT, PSAT, LSAT, GRE, GMAT, GED,

MCAT , CFA (levels 1, 2 and 3), CFP 9,287,619

Increase in Requests for Accommodations

Percent of post

- secondary students with disabilities (2008) 10.8%

Percent of students w/disabilities that have either ( a) learning

disabilit ies , or ( b) Attention De ficit Disorder (ADD) (2008) 22.3%

Percent of s tudent s with learnin g disabilities & ADD already requesting accommodations 51%

Total of Poten tial Students Who Could Request and Receive Testing Accommodation s 109, 457

Ra nge for Potential Students Who D o Request and Receive Testing Accommodation s 50% 70% 90%

Additional Students w/ Learning D isabilities and ADD L ikely to

R equest and Receive Testing A ccommodation s 54, 729 76, 620 98, 512

Average Additional Time Requested ( 3.54 hrs x 75% additi onal time) 2.65

Average Hourly Wage for Test Proctors $10.38

Annual Additional Cost Per Test

- taker $27.57

Total Cost for National Examinations *** $1,50 8 ,6 90 $2,1 12

, 166 $2,71 5

, 642

Additional Training in Institutions (di sability services centers, etc.)

Number of Institutions   1,397

Incremental Cost per Institution (estimate) $500

ONE TIME Cost for Additional Training at Institutions $698,500

** * Details may not sum exactly to tota ls due to rounding

*** * NAICS code 6117102

— Educational test development and evaluation services. Source: U

. S

. Census Bureau, available at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_00A1&prodType=table

.14

B. Assumptions and Data Used for Analysis

Several data and assumptions were used in the estimations above and are set out in the following tables.

1. General Data

Data presented by the GAO was used in the estimation of the number and percentage of

post

- secondary students with disabilities, by type. The data table from GAO 10

- 33, Hi gher Education and Disability, is reproduced in its entirety below ( Table 3 ) and relies on data from the U.S. Department of Edu cation, National Center for Education Statistics, 1999

- 2000, 2003

- 04,

and 2007

- 2008 National Post Secondary Student Aid Study

.

Table 3 : Percentage Distribution of Main Type of Disability among Postsecondary (Undergraduate) Students with Disabilities, 2000 , 2004 and 2008

Main type of disability Percentage distribution

2000 2004 2008

Mental, emotional, or psychiatric condition/ depression 17.1 22.3 24.3

Attention deficit disorder (ADD) 6.7 11.6 19.1

Orthopedic or mobility impairment 29.0 24.8 15.1

Othe r 13.2 5.8 15.0

Specific learning disability, such as dyslexia 5.0 7.7 8.9

Hearing impairment 6.8 4.7 6.1

Health impairment or problem 15.1 17.3 5.8

Blindness or visual impairment 5.2 3.7 2.7

Speech or language impairment 0.3 0.5 0.7

Brain injury 1.2 1.0 1.7

Developmental disability 0.6 0.6 0.715

A range of estimates was found for hourly wages of exam proctors, ranging from $7.50 an hour up to $ 1 6 .00 an hour. A value of $10. 38 per hour was the average and close to a commonly noted figure of $10.00 p er hour during a recent search of job postings.

Table 4 : Exam Proctor Cost Data

Variable Value Unit Source

Hour wage of Exam

Proctor Job $8.00 per hour https ://jobs.usu.edu/applicants/jsp/shared/frameset/Fr
ameset.jsp?time=1357316893671

Hour wage of Exam

Proctor Job $9.50 per hour http://agency.governmentjobs.com/sc/defa ult.cfm?act
ion=viewJob&jobID=566046

Hour wage of Exam

Proctor Job $10.10 per hour https://employment.csi.edu/jobdescription.asp?annou

ncement=1126407585028

Hour wage of Exam

Proctor Job $11.59 per hour http://jobs.mdc.edu/part

- time

- test

proctor/job/3359704

Hour wage of Exam

Proctor Job $8.00 per hour http://csucareers.calstate.edu/Detail.aspx?pid=33974

Hour wage of Exam

Proctor Job $11.54 per hour http://www.dccc.edu /about

- us/employment

opportunities/job

- postings/test

- proctor

- part

- time

marple

- campus

Hour wage of Exam

Proctor Job $10.00 per hour https://ukjobs.uky. edu/applicants/jsp/shared/position/
JobDetails_css.jsp?postingId=851241

Hour wage of Exam

Proctor Job $10.00 per hour https://jobs.elgin.edu/applicants/jsp /shared/frameset/
Frameset.jsp?time=1357318065671

Hour wage of Exam

Proctor Job $7.50 per hour https://jobs.weber.edu/applicants/jsp/shared/position/

JobD etails.jsp?time=1357318278157

Hour wage of Exam

Proctor Job $12.00 per hour https://jobs.davenport.edu/applicants/jsp/shared/posit
ion/JobDetails.jsp ?time=1357318328093

Hour wage of Exam

Proctor Job $16.00 per hour https://jobs.davenport.edu/applicants/jsp/shared/posit
ion/JobDetails.jsp?time=1357 318328093

2. Accommodations Requested

Based on the GAO study and the Department’s own research, the Department has

concluded that additional proctors for longer testing times are the likely testing accommodation

that will be needed based on the chan ges implemented by the ADA Amendments Act and proposed regulations

.16

According to the GAO: “Based on their reviews, testing companies reported granting between 72 and 100 percent of accommodations that were requested in the most recent testing year for 6 o f the 10 tests for which we received data. An estimated 179,000 individuals with

disabilities

– approximately 2 percent

– of about 7.7 million test takers took an exam with an accommodation in the most recent testing year, according to data provided to us .” 24

Table 5 : Testing Accommodations Request ed and Granted

, by Request Type 25

Type of Accommodations Requested and

Granted 26 Requested

Accommodation Accommodation

Granted

(Percent of All Requested) (Percent of All Granted)

50% e xtra time 59% 57%

More th an 50% extra t ime 15% 17%

Extra/extended breaks 5% 4%

Alternate text format 3% 7%

Auditory or visual assistance 3% 4%

Adjustments in testing environment 10% 7%

Other 4% 3%

24 U.S. Government A ccountability Office , “ Hi gher Education and Disability : Improved Federal Enforcement

Needed to Better Protect Students ’ Rights to Test ing Accommodations ” (GAO

- 12

- 40) ( Nov ember 2011 ), available

at http://www.gao.gov/products/GAO

- 12

- 40 (last visited Dec. 12 , 2013)

. 25 U.S. Government Accountability Office

, “ Hi gher Education and Disability : Improved Federal Enforcement Needed to Better Protect Students' Rights to Testing Accommodations ” (GAO

- 12

- 40) ( Nov ember 2011 ), available

at http://www.gao.gov/products/GAO

- 12

- 40 (last visited Dec. 12, 2013).

26 Testing companies provided data on the most recent testing year for which they had data; however, this time period may vary across testing companies. Some accommodations may have been requested in a different year fro m 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 ac commodations 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

req ueste d 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.17

Table 6 : Testing Accommodations Requested and Granted, by Primary Disability Type 27

Disability Type Requested

Learning Disability 46%

ADD/ADHD 26%

Other 14%

Physical/sensory 10%

Psychiatric 4%

TOTAL 100%

3. Online Learning

This section summarizes the trend of increasing prevalence of online learning among undergraduate s tudents. The trend indicates that more and more undergraduate students are participating in online courses, including students with disabilities. We believe that proctored and timed tests are less prevalent with online learning ; the refore

, the number of students requesting additional testing time as an accommodation will also decrease. The Department’s estimates attempt to calibrate for the prevalence of tests without time limits. The t able below show that significant portions of undergraduate students are enrolled in either online course s or online degree programs. We invite public comment on whether our assumption is correct that proctored and timed tests are less prevalent with online learning.

Table 7 : Number of Postsecondary Students who are Enrol led in Distance Education

Course s and Distance Education Program s 28

Criteria \ Year

All Postsecondary Students (undergraduate and graduate students, full time equivalent) 17,838,619

Percent Enrolled in an Online Degree Program 3.7%

Percent Enrolled in an Online C ourse 20.4%

27 http://nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8530 (last visited Dec. 5, 2013).

28 U.S. Department of Education, National Center for Education Statistics, 1999

- 2000, 2003

- 04, and 2007

- 2008 National Post Secondary Student Aid Study (NPSAS: 2000, NPSAS:04, and NPSAS:08) , available at http://nces.ed.gov/pubs2002/2002152.pdf ; http://nces.ed.gov/pubs2006/2006180.pdf

, http://nces.ed.gov/pubs2011/2011188a.pdf (l ast visited Dec. 16 , 2013 ). HDR, Incorporated, computed the figures

base d on the percentage and the total number of undergraduate students based on NPSAS data.18 4. National Examinatio ns

Based on a study by the GAO and the Department’s own research, we estimated a total of approximately 9, 287

, 619 national exam takers

. 29 Our research indicates that these national examinations last anywher e from two to nine hours. A straigh t average of these test lengths results in an average test length of 5.4 hours. And a n average weighted by number of test takers

res ults in an average of 3.5 hours.

Table 8 : National Examination Test Takers Statistics 30

Exam Total Year of Estimate Test Length

MBE 70,302 2011 6 hrs

MPRE 66,640 2011 2 hrs

CPA 85,391 2008 3.5 hrs

NAPLEX 11,707 2011 4 hrs

PRAXIS (Speech Language Pathology) 7,662 2010

- 2011 2 to 4 hrs

NCLEX RN 195,307 2011 6 hrs

NCLEX PN 80,949 2011 5 h rs
USMLE Step 1 24,245 2011 8 hrs

USMLE Step 2

– CK 16,186 2011 9 hrs

USMLE Step 2

– CS 15,837 2011 8 hrs

FE (Fundamentals of Engineering Exam ) 50,000 n/a 8 hrs

PE (Principles and Practice of Engineering Exam) 26,000 n/a 8 hrs

ARE (Architect Registr ation Exam) 14,465 2011 4 to 6 hrs

SAT 1,660,000 2012 3.75 hrs

29 As mentioned above, due to a lack of data, not all possible national examinations were used to estimate the

number of total national test takers.

30 U.S. Government A ccountability Office , “ Hi gher Education and Disability: Improved Federal Enforcement Needed to Better Protect Students' Rights to Testing Accommodations ” (GAO

- 12

- 40) ( Nov ember 2011 ) , available at http://www.gao.gov/products/GAO

- 12

- 40 (last visited Dec. 10, 2013); National Conference of Bar Examiners,

“2011 Statistics ” ( March 2012 ), available at http://www.ncbex.org/assets/media_files/Statistics/2011Statistics.pdf (last visited Dec. 16, 2013); National Council of Architectural Registration Boards, “ARE Pass Rates by Division, ”

av ailable at http://www.ncarb.org/ARE/ARE

- Pass

- Rates/DivisionPR.aspx (last visited, Dec. 5, 2013) ; Dahli Gray & Teresa R. Metinko, “Decrease in the Number of People Taking the CPA Exam Not Due to the 150

- Hour Requirement ,” American Jour nal of Business Education, Volume 3, Issue 11 ( Nov ember 2010 ), available at http://journals.cluteonline.com/index.php/AJBE/article/view/437/425 (last visited Dec. 16, 2013); National Association of Boards of Pharmacy, “NAPLEX Passing Rates for First

- Time C andidates per Ph armacy School from 2007 to 2011, ” available at http://www.nabp.net/programs/assets/SchoolPassRatesNAPLEX2007

- 2011.pdf (last visited Dec. 16, 2013); National Society of Professional Engineers, “The 80% Myth i n the Engineering Profession, ”

av ailable at http://community.nspe.org/blogs/licensing/archive/2010/09/13/the

- 80

- myth

- in

- the

- engineering

profession.aspx (last visited Dec. 5, 2013); American Speech

- Language

- Hearing Association, “National Summary Report: Descriptive Statistics of PRAXIS Exa mination Scores for the Speech

- Language Pathology Specialty Test

for Test Administration Years 2000

- 2001 through 2010

- 2011,” available at http://www.asha.org/uploadedFiles/PraxisScoresSLP.pdf (last visited Dec. 5, 2013) ; National Council of State

Boards of Nursing, “2011 Number of Candidates Taking NCLEX Examination and Percent Passing, ” available at https://www.ncsbn.org/Table_of_Pass_Rates_2011.pdf (last visited Dec. 16, 2013).19 Exam Total Year of Estimate Test Length

ACT 1,300,000 2010 3 to 3.5 hrs

PSAT 3,500,000 n/a 2.1 hrs

LSAT 129,958 2011 4 hrs

GRE 800,000 2011 4.5 hrs

GMAT 286,529 2012 3.5 hrs

GED 680,000 2009 7 hrs (not
continuous)

MCAT 89,452 2012 4.5

- 5 hrs

CFA (Level 1,2, and 3) 168,427 2011 6 hours

CFP Certification 8,562 2011 10 hours

Total Exam Test Takers 9,287,619 Weighted Avg

- 3.54 hrs

C. Benefits

Congress enacted the ADA Amendments Act to ensure that persons with disabilitie s who were refused access to programs and services would again be able to rely on the protections of the ADA. As a result, the Department believes that the enactment of the law benefits millions of Americans and the benefits to these individuals are nonqu antifiable but nonetheless significant.

The D epartment determined

, however, that there was a group of individuals with disabilities who would be able to receive benefits in the form of increased access to testing accommodations from higher education insti tutions and testing entities , and that these benefits would be associated with specific costs to those institutions and entities , which are analyzed above

.

With respect to specific benefits, i n the first year, our analysis estimates that approximately 142 ,000 students will take advantage of ad ditional testing accommodations that

otherwise would not have occurred but for this rule. Over ten years, approximately 1.6 million

full

- time equivalent enrollees would benef it, or, if assuming an average four

- year c ourse of study, more than 400,000 individual students. An additional 800,000 thousand national examination test takers would benefit over that same 10 years (assuming that people take an exam one time only). The Department is interested in comment on whe ther it is underestimating or overestimating the number of people who will benefit from this rule

.

A number of these individuals could be expected to earn a degree or license that they

otherwise would not have. We were unable to find robust data to estim ate the number of

student s who would receive a bachelor’s degree after this rule goes into effect that would not otherwise have received one, but note that extensive research has shown notably higher earnings for those with college degrees over those who d o not have one. Estimates of this lifetime earnings vary, with some studies estimating an earning differential ranging from approximately20

$300,000 to $1 million. 31 In addition, some number of students may be able to earn a degree in a higher paying field t han otherwise and yet other students would still get the same degree, but perhaps be able to finish faster or more successfully ( i.e

. , higher grades) than otherwise would be the case. All of these would be expected to lead to greater lifetime productivity and earnings.

In addition to these quantitative benefits, t his rule will have significant non

- quantifiable benefits to individuals with disabilities who, prior to the passage of the ADA Amendments Act and the proposed regulations, were denied the opport unity for equal access to an education or to become licensed in their chosen profession because of their inability to receive needed testing accommodations. As with all other improvements in access for individuals with disabilities, the

ADA Amendments Act is expected to generate psychological benefits for covered individuals, including an increased sense of personal dignity and self

- worth, as more individuals with disabilities are able to successfully complete tests and exams and more accurately demonstrat e their academic skills and abilities. Some individuals will now be more likely to pursue a favored career path or educational pursuit, which will in turn lead to greater personal satisfaction.

There are additional benefits to society that arise from imp roved testing accessibility. For instance, if some persons with disabilities are able to increase their earnings, they may need less public support

– either direct financial support or other programs or services. This, in turn,

would lead to cross

- sector benefits from resource savings arising from reduced social service agency outlays. Others, such as family members, may also benefit from less financial and psychological pressure due to the greater independence and earnings of the family member

whose disa bility is now covered by the ADA under the revised definition of disability.

In addition to the discrete group of individuals with learning disabilities and ADD who will benefit from the changes made to the definition of disability, there is a class of i ndividuals who will now fall within the nondiscrimination protections of the ADA if they are refused access to or participation in the facilities, programs, services and activities of covered entities. The benefits to these individuals are significant, bu t unquantifiable. The Department believes (as did Congress when it enacted the AD A) that there is inherent value that results from greater accessibility for all Americans. Economists use the term “existence value” to refer to the benefit

that individuals get from the plain existence of a good, service

, or resource

– in this case, the

increased accessibility to post

- secondary degrees and specialized licenses that would arise from greater access to testing accommodations or the increased accessibility to co vered entities’ facilities, programs, services, or activities as a result of the ADA Amendments Act

. This can

31 See Mark Schneider, “How Much Is That Bachelor ’ s Degree Really Worth?: The Million Dollar Misunderstanding,” American Enterprise Institute, AEI Online (May 2009), available at http://www.aei.org/article/education/higher

- education/how

- much

- is

- that

- bachelors

- degree

- really

- worth/ (last visited Dec. 16, 2013); U.S. Census Bureau, “W ork

- Life earnings by Field of Degree and Occupation for People with a Bachelor’s Degree: 2011 ,” American Community Survey Briefs ( Oct ober 2012 ) , available at http://www.census.gov/prod/2012pubs/acsbr11

- 04.pdf (last visited Dec. 16, 2013); Anthony P. Carve vale et al.,

“ The College Payoff

– Education, Occupations, Lifetime Earnings,” Georgetown University Center on Education and the Workforce ( 2011 ) , available at http://cew.georgetown.edu/collegepayoff/ (last visited Dec. 10, 2013).21

also be described as the value that people both with and without disabilities derive from the guarantees of equal protection and non

- discriminati on

. In other words, people value living in a country that affords protections to persons with disabilities, whether or not they themselves are

d irectly or indirectly affected. There can be numerous reasons why individuals might value accessibility even i f they do not require it now and do not ever anticipate needing it in the future. These include: bequest motives, benevolence toward relatives and/or friends who require accessibility features, and general feelings of empathy and responsibility toward indi viduals with

disabilities. In other words, people in society value equity, fairness, and human dignity; even if they cannot put a dollar value on how important it is to them. These are the exact values agencie s are directed to consider in E O 13563.