ADA Amendment Act of 2008

On September 25, 2008, President Bush signed a bill that will revise the Americans with Disabilities Act (ADA) .  The ADA Amendment Act (ADAAA) will also impact Section 504 of the Rehabilitation Act.  The purpose of this new law, which will go into effect on January 1 of 2009, is to restore the intent and protections of the original Acts.

Congressional lawmakers proposed the bill because court decisions over the years had narrowed protections for people with disabilities.  When the ADA was passed in 1990, it defined a disability in the same way as the Rehabilitation Act of 1973.  “An individual with a disability has a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or is regarded as having such an impairment.”  

In 1999; however, in a case called Sutton vs United Airlines, the Supreme Court ruled that mitigating measures (such as corrective lenses, medications, hearing aids and prosthetic devices) have to be considered when deciding if an impairment is substantially limiting.  This case also practically eliminated “having a record of an impairment” from the definition.  A second controversial case,Toyota vs Williams 2002, also focused on the definition of disability and decided “substantially” means “to a large degree.”  In this case, the Supreme Court said “major life activity” must be something of central importance to most people’s daily lives.  

The ADAAA clarifies the definition of disability and favors broad coverage.  “Substantially limits” is to be interpreted consistently.  The statute contains a list of major life activities which includes eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating.  An impairment need only limit one major life activity.  ADAAA states that mitigating measures (with the exception of eyeglasses and contact lenses) shall not be a factor when making disability determinations.  An impairment that is episodic or in remission is still considered a disability if it substantially limits a major life activity when active.   

This amendment restores the original intentions of the ADA in protecting the rights of individuals with disabilities.  Under this broader definition, more students may be entitled to reasonable accommodations or modifications.  In some school districts, determination forms stated that if a student were functioning normally with mitigating measures, the student would not be eligible.  Students will now need to be assessed without regard to mitigating measures.  The inclusion of “concentrating” in the list of major life activities may make it easier for students with ADHD to qualify under Section 504.

Section 504

Section 504 is a portion of the Rehabilitation Act of 1973 that protects the civil rights of people with disabilities.  It states that no individual may be excluded from or subjected to discrimination under any program receiving Federal funds, which includes public school districts and institutions of higher learning.  Recipients are required to provide students with disabilities the same access to learning as students without disabilities by making “reasonable accommodations and modifications.”  

To be protected under Section 504 a student must be determined to have a physical or mental impairment that substantially limits one or more major life activities, have a record of such an impairment, or be regarded as having such an impairment.  Qualifying impairments include physiological disorders affecting one or more of the body systems (respiratory, digestive, cardiovascular, musculoskeletal, neurological etc.), and mental or psychological disorders (mental illness, mental retardation, specific learning disabilities, AD/HD etc.).  The regulation does not set forth an exhaustive list of specific diseases and conditions because of the difficulty of ensuring the comprehensiveness of such a list.  Section 504’s definition of disability is broader than the definition in IDEA, so students who do not qualify for special education services under IDEA may be eligible for services under Section 504.  

If you believe your child may have a disability that is interfering with learning, you can request a Section 504 meeting.  Be prepared to discuss your child’s behaviors, how they impact his or her learning and what might help your child.  If the evaluation process determines that your child is eligible under Section 504, the regulations require a written plan to describe the accommodations and modifications that will be provided.  Following are examples of adjustments that can be made in the regular classroom: 

• a seat in the front of the classroom
• lecture notes from teacher or peer 
• permission to use a tape recorder
• written step-by-step instructions
• extra time to complete assignments and tests
• being tested orally 
• short breaks 
• permission to stand while working
• prompts for appropriate social behavior
• praise or rewards  

More information on this legislation is available at http://www.504idea.org/504overview.html.

Innovative Learning welcomes your comments and questions.  

Special Education Law – IDEA

In the United States, children with disabilities are ensured services under the Individuals with Disabilities Education Act (IDEA).  This federal law states that all children have the right to a “free appropriate public education.”  It was originally enacted by Congress in 1975 and has been revised several times.  It guarantees children with disabilities educational services designed to meet their unique needs and to prepare them for further education, employment and independent living.  These services are provided in the least restrictive environment, which means with non-disabled peers to the greatest extent possible.  IDEA governs how state and public agencies provide early intervention for babies and toddlers, special education for children ages 3 through 22 and related services, such as speech/ language, physical and occupational therapy. 

Children who are identified as having a possible disability, that is causing a negative impact on their functioning in school, are entitled to a full and individual evaluation by the school district at no cost to the parents.  The initial evaluation may be requested either by the parents or the school and parents must give their written informed consent for it to begin. Evaluators will look at all aspects of the child’s functioning; including health, vision, hearing, communication, motor abilities, general intelligence, academic performance, social and emotional skills. Assessment results are used to determine whether the child has a disability, as well as the extent of special education and related services that the child may need.

Under IDEA, children are eligible for services if it is determined that their educational performance is adversely affected by one or more of the following specific disabilities: 

 

• mental retardation – significantly below average general intellectual functioning existing concurrently with deficits in adaptive behavior 
•  hearing impairment including deafness 
• speech / language impairment – communication disorders including stuttering, impaired articulation, language or voice impairment
• visual impairment including blindness
• emotional disturbance – exhibiting one of the following over a long period of time: inability to build interpersonal relationships with peers and teachers, inappropriate behavior and feelings,  pervasive depression, tendency to develop physical symptoms or fear in response to problems, childhood schizophrenia
• orthopedic impairment – may be congenital or the result of a disease or other cause, such as cerebral palsy
• autism – a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three.  Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.
• traumatic brain injury – an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability
• other health impairment – including asthma, attention deficit disorder, attention deficit hyperactivity disorder, diabetes, epilepsy, heart conditions, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome
• specific learning disability – including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia
• deaf-blindness
• multiple disabilities

More information on IDEA can be found at http://idea.ed.gov/