On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 (ADA AA). The Act, effective January 1, 2009, emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA.
The U.S. Department of Education's (ED) Office for Civil Rights (OCR) issued additional guidance concerning the effects of the Americans with Disabilities Act Amendments Act of 2008 (Amendments Act) on public elementary and secondary program. In most cases, application of these rules should quickly shift the inquiry away from the question whether a student has a disability, and toward the school district's actions and obligations to ensure equal educational opportunities.
U.S. DOE OCR Guidance Letter advising school districts of the expanded definition of and services for students with disabilities. The new guidance requires students who traditionally may not have been identified under Section 504 and Title II under ADA to be reevaluated and tested under a broadened definition. (pdf format)
The letter also requires districts to revise their qualifications to receive special education and the procedures determining the services a student with a disability would receive upon identification to comply with the revised ADA law.
ADA AA Changes Apply to Section 504
The new law amends the meaning of "disability" in the ADA and the Rehabilitation Act of 1973, of which Section 504 is a part. They now share provisions including a conforming amendment to the Rehabilitation Act of 1973 that affects the meaning of "disability" in Section 504.
Although the Amendments Act broadens the interpretation of disability, it does not require the Dept of Education to amend its Section 504 regulations. Section 504 regulations as currently written are valid and Office for Civil Rights (OCR) is enforcing them consistent with the Amendments Act.
The changes made to the ADA AA do apply to public school students under Section 504. Changes may increase the numbers of Section 504 plans schools must prepare for students whose needs previously were handled under health plans.
ADA AA Becomes Law, Strengthens 504 and ADA. Jessica Butler, an attorney and Congressional Affairs, Co-Chair of the Council of Parent Attorneys and Advocates (COPAA) summarizes the new Amendments Act and explains the impact for children with disabilities in public schools.
The ADA AA restores the original definition of "substantially limited" - that the impairment simply be a substantial limitation rather than a "significant" or "severe" restriction.
The ADA AA broadens the definition of "major life activities" and provides that the impairment only needs to limit one major life activity in order to be considered a disability under the ADA.
Districts must now make their Section 504 determinations based upon the child’s disability as it presents itself without mitigating measures (i.e.,hearing aids, medications, learned behavioral adaptations). There is one exception, ordinary eyeglasses on contact lenses. (Example: Suppose you have hired a tutor for your child with a disability, who helps him with homework 2-3 hours a day and helps keep his grades at A or B level. The tutor is a mitigating measure. Now, the use of this mitigating measure (resulting in better grades) cannot be used to preclude someone with a disability from being a person with a disability whose ability to learn is substantially impaired.)
The new law states that a student shall not be “regarded as” having a disability (one of the prongs that would allow a student to be protected under Section 504) if the disability is“transitory and minor.” It defines transitory as “an impairment with an actual or expected duration of 6 months or less.”
OCR also clarified that a Section 504 re-evaluation is similar to an IDEA re-evaluation. Section 504 specifies that re-evaluations in accordance with the IDEA is one means of compliance with Section 504 and that regulations require that re-evaluations be conducted periodically. Re-evaluation must occur prior to a significant change of placement. An exclusion from school for more than 10 school days a significant change of placement. "OCR would also consider transferring a student from one type of program to another or terminating or significantly reducing a related service a significant change in placement."
NASBE Policy Update July 2011. The 2009 Amendments to the Americans with Disabilities Act - What They Mean for States and Schools. National Association of State Boards of Education (NASBE).
A New Look at Section 504 and the ADA in Special Education Cases by Mark C. Weber. A recent amendment to section 504 and the ADA has greatly expanded section 504/ADA coverage. The ADA Amendments Act, Pub. L. No. 110–325 (2008), overturns Supreme Court precedent that narrowed the coverage of the ADA and section 504. It provides that impairments are to be considered in their unmitigated state and widens the definition of major life activities set out in the statute’s coverage provision. (05/23/11)
US DOE, Office for Civil Rights (OCR) issued a revised frequently asked questions (FAQ) document (03/17/11) for the purpose of clarifying the requirements of Section 504 of the Rehabilitation Act of 1973 (Section 504) in the area of public elementary and secondary education.
Section 504 updated: Greater eligibility and accommodations for students with LD, AD/HD. Learn about recent improvements made to Section 504, a civil rights law that now provides protection and accommodations to even more students with LD and/or AD/HD.