De Caro & Kaplen partner Michael V. Kaplen, a three-term president of the Brain Injury Association of New York State, and professorial lecturer at law, teaching a course in brain injury law at the George Washington University Law School, discusses accommodations which may be needed following an acquired or traumatic brain injury to overcome and offset injury related limitations.
Survivors of an acquired or traumatic brain injury may receive accommodation, not because someone is doing them a favor, but because it is a civil right guaranteed by law.
It is essential to remove the stigma associated with assisting brain injury survivors and to promote understanding and respect for their unique needs and challenges.
Are brain injuries considered a disability under the Americans with Disability Act?
- Brain injury is considered a disability under landmark civil rights legislation for the disabled known as the Americans with Disabilities Act or “ADA” for short.
- It is a civil right and accommodation. It should not be looked at with disfavor or disdain.
- A brain injury is an invisible injury affecting the lives of millions of Americans.
- Accommodation may be necessary to help survivors in leading normal, productive lives.
- The Americans with Disabilities Act (ADA) prohibits discriminatory conduct against any person with a disability including disabilities caused by an acquired or traumatic brain injury and requires equal opportunity and reasonable accommodations in services and supports provided by any government entity, in places of public accommodation, in employment, in education and in transportation.
Does Section 504 of the Rehabilitation Act of 1973 protect brain injury survivors?
- Section 504 of the Rehabilitation Act of 1973 is a national law that protects individuals from discrimination based on their disability.
- The nondiscrimination requirements of the law apply to employers and organizations that receive financial assistance from any Federal department or agency, including the U.S. Department of Health and Human Services.
- These organizations and employers include many hospitals, nursing homes, mental health centers and human service programs.
What type of accommodation may be necessary following an acquired or traumatic brain injury?
The ADA and the Rehabilitation Act of 1973 mandate equal opportunities and reasonable accommodations for individuals with disabilities, including those with acquired or traumatic brain injuries, in various areas such as government services, public accommodations, employment, education, and transportation.
Accommodation should be tailored to individual needs because each brain injury is unique.
Accommodations following an acquired or traumatic brain injury may include:
- Accommodations to help a stroke survivor or any individual with an acquired or traumatic brain injury in reading, in understanding oral communication, and to aid in speech, do not differ from wheelchairs, canes or crutches to help those following a physical disability.
- A brain injury survivor may need a memo note pad or even a tape recorder as a memory aid.
- A brain injury survivor may need specially designed prism glasses to help in reading because of word convergence.
- A brain injury survivor returning to work may need some quiet break times, a distraction free workspace, or instructions in written format rather than orally.
Since each brain injury is unique, accommodation must be tailored to the individual needs of the person.
What protection is provided to children and students with an acquired or traumatic brain injury?
Accommodation is also important when students return to school after a brain injury.
Students are entitled to under the Americans with Disability Act and the Individuals with Disabilities Education Act known as the “IDEA” and Section 504 of the Rehabilitation Act of 1973.
What type of accommodation is available for students following a brain injury?
Accommodations may include:
- Allowing additional time to complete in-class assignments.
- Allowing for extra or extended breaks
- Testing accommodations
- Providing students with instructor’s notes or help for a student to obtain quality notes from other students.
- Allowing student to audio record lectures for later playback
- Providing both oral and written instructions; and clarify instructions.
- For lectures, giving a student an outline or study guide when available.
- Allowing use of a portable computer with spelling and grammar checks for assignments and note-taking.
- In grading work, reducing emphasis on spelling and grammatical errors.
- Providing preferential seating at or near the front of the classroom.
- Exempting a student from reading aloud in front of classmates because of impaired reading skills.
This is a short list of the many accommodations that may be necessary when a student returns to learn.
About The Author
Michael V. Kaplen represents victims of vehicle collisions, unsafe buildings and construction sites, and medical malpractice, and is a preferred attorney of The Brain Injury Association of America.
Michael is board certified as a Civil Trial Advocate and board certified in medical malpractice litigation. He is a Professorial Lecturer in Law, The George Washington University Law School, The Legal Aspects of Traumatic Brain Injury.
Michael is past chairman of the American Association for Justice (AAJ) Automobile, Highway and Premise Liability Section, past chairman of the AAJ Traumatic Brain Injury Litigation Group, three term president of the Brain Injury Association of New York State served two terms as chair of the New York State Traumatic Brain Injury Services Coordinating Council and vice-president, New York State Academy of Trial Lawyers.
He was invited by President Obama to participate in the White House Healthy Kids & Safe Sports Concussion Summit.
He is admitted to courts in New York, Florida, and Washington, DC. He has been selected as a New York Super Lawyer and recognized by Best Lawyers of America and U.S. News and World Report in personal injury law.