Expanded Protection and Services under Section 504 and Americans with Disability Act for Students with Disabilities.

Giving us a good reminder that a far wider array of students in elementary, secondary and college level schools now qualify for ADA and/or Section 504 protection than ever before, the Department of Justice has announced proposed new regulations in the Americans With Disabilities Act to match the more expansive definitions and rules of construction that were added to the ADA in 2009.  http://www.gpo.gov/fdsys/pkg/FR-2014-01-30/pdf/2014-01668.pdf

Parents of students with Section 504 Plans or considering such coverage should pay close attention because Section 504 of the Rehabilitation Act is routinely construed under the same definitions that apply to the ADA.  All such students are entitled under both statutes to “reasonable accommodations” that address their disability related needs, and all such students are protected from discrimination because of their disability.

Many of the changes are expected to specifically help students with learning disabilities.

Although the ADA has always protected students who have a “disability” that “substantially limits” a “major life activity,” the Courts had previously insisted on very restrictive and rigid application of those definitions, thereby significanly limiting the numbers of protected students.

Now, the law requires that “disability,”and “substantially limits” must be construed broadly in favor of “expansive coverage” and should not require extensive analysis.  The focus now should be on services needed, not battles over the fine lines of qualification standards.

The postive impact of mitigating factors such as medication or assistive technology can no longer be used to exclude a child (simple measures such as eyeglasses can be used), and the fact that a disability is only episodic or is currently in remission does not preclude protection if that disability would, if active, substantially limit a major life activity.  This latter change should clarify some prior disagreements about serious allergies or toxic reactions such as to mold or peanuts and the like.

Other examples of mitigating factors that will no longer disqualify a student include that the student utilizes far longer hours or days to do her work; or uses special techniques to focus or to reduce stress.   These are now recognized as only “temporary supports” that, although may improve the student’s academic function, do not take away from the fact that the student has a substantial limitation in learning and therefore qualifies for protection.

Lastly, and a very important point for many students and parents — the Department now specifically explains that high academic achievment is NOT necesarily determinative as to whether her disability is substantially limiting.  Meaning – a person can be substantially limited in learning even where she ultimately achieves excellent grades, if, for example, it takes her far more time or effort to learn as compared to the general student population.

Many parents are still being refused Section 504/ADA accommodations because Districts do not yet fully understand these important clarifications in the law.    If you run into such problems, please feel free to contact my office.

All the best –

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