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Opening the Door to More Students with Disabilities
New Guidance on ADAAA

By Susan Bruce

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When the Americans with Disabilities Act (ADA) was amended in 2008, did it affect students with disabilities attending public schools?

Yes!

On January 12, 2012, the Office for Civil Rights (OCR) issued new guidance on the Americans with Disabilities Act Amendments Act (ADAAA).

OCR enforces both Section 504 of the Rehabilitation Act of 1973 and the ADA.

Because Title II of the ADA prohibits discrimination “embodied in Section 504 to all actions under state and local government,” the standards for Title II are generally the same as those required under Section 504.

Why does the Amendments Act affect Section 504?

The Amendments Act broadens the definition of disability under Section 504.  Title II and Section 504 protects individuals from discrimination. For some students discrimination could mean the denial of program and physical access as well as being subject to retaliation and harassment due to a disability.

Why did Congress pass the Amendments Act?

There were many U.S. Supreme Court decisions that interpreted the ADA definition of disability too narrowly.

Congress said:

"The ADA Amendments Act rejects the high burden required [by the Supreme Court] and reiterates that Congress intends that the scope of the Americans with Disabilities Act be broad and inclusive. It is the intent of the legislation to establish a degree of functional limitation required for an impairment to constitute a disability that is consistent with what Congress originally intended . . .”

How do Section 504 and the ADA define disability?

  1. Physical or mental impairment that substantially limits a major life activity;
  2. A record of such impairment;
  3. Regarded as having such impairment.

While the elements of the definition of disability have not changed, interpretation of the term “disability” has.  The Amendments Act broadens the definition of “disability."

Students who previously did not qualify under Section 504 may now qualify as students with disabilities under Section 504.  This opens the door to more students with disabilities.  According to the guidance issued by OCR:

  • An impairment does not have to prevent or severely or significantly restrict a major life activity to be considered substantially limiting.
  • When defining "substantially limits," effects of mitigating measures should not prevent a student with a disability from qualifying.

Mitigating measures are things like medications (think ADHD), prosthetic devices, assistive devices, or learned behavioral or adaptive neurological modifications that a student with a disability may use to eliminate or reduce the effects of an impairment.  This does not include eyeglasses or contacts.

  • An impairment that is episodic or in remission is a disability if, when in an active phase, it would substantially limit a major life activity.

For example, a student with bipolar disorder would be covered if, during manic or depressive episodes, the student is substantially limited in a major life activity (e.g., thinking, concentrating, neurological function, or brain function.

Did the term, “major life activity” change?

The Amendments Act broadens the term “major life activity” and includes a list of “major bodily functions” as well.

Major Life Activity
  • caring for oneself
  • performing manual tasks
  • seeing
  • hearing
  • eating
  • sleeping
  • walking
  • standing
  • lifting
  • bending
  • speaking
  • breathing
  • learning
  • reading
  • concentrating
  • thinking
  • communicating
  • working
Major Bodily Functions
  • functions of the immune system
  • normal cell growth
  • digestive
  • bowel
  • bladder
  • neurological
  • brain
  • respiratory
  • circulatory
  • endocrine
  • reproductive functions

The Amendments Act widens the door to eligibility under Section 504.

Remember that these lists are examples. The list is not exhaustive.

Also, remember that learning is not the only major life activity that a school district must consider when determining eligibility under Section 504.

With these new rules, while neither the ADA nor Section 504 has a specific list of disabilities, OCR says, “the nature of many impairments is such that, in virtually every case, a determination in favor of disability will be made."

Because Section 504 is all about equal access and opportunity, both physical and programmatic, schools should consider:

  • how the impairment affects the student’s ability to learn,
  • how the impairment affects any major life activity of the student, and,
  • if necessary, must determine what the student needs in order to receive equal opportunity to participate in the school’s programs.

Does the Amendments Act affect the IDEA?

This advocate would argue yes and no.

The Amendments Act does not change anything under the IDEA.  However, I believe that the amendments to the ADA will be a great tool in advocating for an evaluation under both laws.

Here is why.

School districts can no longer consider the ameliorative or corrective effect of mitigating measures (such as ADHD medication or of a parent spending 6 hours a night with their student doing homework).

Schools cannot assume that because a student is successful, a major life activity is not substantially limited and that the student does not have a disability.

The door to eligibility has not only widened, but been blown wide open.

These new rules mean that, for students who have impairments such as bipolar disorder or diabetes, school districts do not need nor should they require extensive documentation or analysis to determine a student qualifies under Section 504.

According to OCR, “If a district determines a student has a disability under these new legal standards, it must also evaluate whether, because of the disability, the student needs special education or related services as described in the Section 504 regulation."

It has been my experience that often when parents request an evaluation under the IDEA, schools will issue prior written notice stating that the school “does not suspect a disability.”  Getting outside the box here, why would we not simply request an evaluation under 504?  Because the OCR says “the nature of many impairments is such that, in virtually every case, a determination in favor of disability will be made,” and then the district “must also evaluate whether, because of the disability, the student needs special education or related services as described in the Section 504 regulation."

How many school districts do you know who will provide special education and related services under Section 504, for which they get no funding?  In the 37 school districts I cover in South Carolina, I know of not ONE.

According to Section 504: 104.35 Evaluation and placement.

(a) Preplacement evaluation. A recipient that operates a public elementary or secondary education program or activity shall conduct an evaluation in accordance with the requirements of paragraph (b) of this section of any person who, because of handicap, needs or is believed to need special education or related services before taking any action with respect to the initial placement of the person in regular or special education and any subsequent significant change in placement.

(b) Evaluation procedures. A recipient to which this subpart applies shall establish standards and procedures for the evaluation and placement of persons who, because of handicap, need or are believed to need special education or related services which ensure that:

(1) Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer;

(2) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and

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

Evaluation Timelines

Keep in mind though, that unlike the IDEA, there is no specific time line in which an evaluation must take place under Section 504.  Section 504 simply states, an evaluation must be completed, “in a reasonable amount of time.”  However, the OCR has interpreted this to be similar to the requirements under the IDEA.

Can you say comprehensive E-V-A-L-U-A-T-I-O-N? 

If the team determines the child has a disability, then determines the child is in need of special education and related services and the disability were to fall into one of the 13 categories of disability under the IDEA……IEP here we come!

Resources

Questions and Answers on the ADA Amendments Act of 2008 from the Office for Civil Right (01/19/12)

http://www2.ed.gov/about/offices/list/ocr/docs/dcl-504faq-201109.html

Americans with Disabilities Act (ADA) and Section 504
http://www.wrightslaw.com/info/sec504.index.htm

Americans with Disabilities Act Amendments Act (ADAAA)
http://www.wrightslaw.com/info/sec504.adaaa.htm

Individuals with Disabilities Education Act (IDEA)
http://www.wrightslaw.com/idea/index.htm

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