OCR Issues Dear Colleague Letter Regarding 2008 Americans with Disabilities Act Amendments

On January 19, 2012, the US Department of Education’s (“DOE”) Office of Civil Rights (“OCR”) issued a Dear Colleague letter [http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201109.html] and Questions and Answers [http://www2.ed.gov/about/offices/list/ocr/docs/dcl-504faq-201109.html#ftn2] regarding the impact of the 2008 amendments to Americans with Disabilities Act (“ADA”) on public school districts.  These documents provide guidance on the requirements of the ADA and Section 504 of the Rehabilitation Act (“Section 504”) in light of the changes made by the 2008 ADA Amendments Act (“Amendments Act”).  Generally these amendments have the effect of broadening the definition of what constitutes a disability, and thus who will receive special education services from school districts.

The Amendments Act does not alter the three elements of the definition of disability, which remain:

(1) a physical or mental impairment that substantially limits a major life activity;

(2) a record of such an impairment; or

(3) being regarded as having such an impartment.

However, the Amendments Act broadened the meaning of “disability” under the ADA and Section 504 by altering how the term “disability” should be interpreted.  Congress intended that the definition of disability should be construed broadly and that the determination of whether an individual has a disability should not require extensive analysis.  Changes to the Amendments Act include clarification that:

  • An impairment does not need to prevent or severely/significantly restrict a major life activity to be considered substantially limiting.
  • “Substantially limits” is to be interpreted without regard to the ameliorative effects of mitigating measures, other than ordinary eyeglasses or contact lenses.  Mitigating measures cannot be considered when determining whether a person has a substantially limiting impairment.  Thus, impairments that may not have been considered a disability due to the ameliorative effects of mitigating measures, may now be considered a disability under the ADA and Section 504.
  • An impairment that is episodic or in remission is considered a disability if, when active, would substantially limit a major life activity. 

The OCR notes that application of these rules would generally “shift the question away from whether a student has a disability . . . and toward the school district’s actions and obligations to ensure equal educational opportunities.”  OCR continues by saying that “while there are no per se disabilities under the Section 504 and Title II [of the ADA], the nature of many impairments is such that, in virtually every case, a determination in favor of disability will be made.”  For example, the OCR says that districts should not need to require extensive documentation or analysis to determine a student with diabetes, epilepsy, bipolar disorder, or autism has a disability.

Additionally, the Amendments Act includes two nonexclusive lists of what constitutes a “major life activity,” including, but not limited to:

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

Although these amendments do not alter a school district’s obligation to provide a free, appropriate public education (“FAPE”), they amend Section 504 to “broaden the potential class of persons with disabilities protected by the statute.”

What This Means To You

Although the requirement that school districts provide a FAPE to students with disabilities remains unchanged, these amendments expand the scope of students who are considered to have a disability pursuant to the ADA and Section 504.  Thus, there is the potential that many students who did not receive special education services under Section 504 are now eligible for services based on their disability.  However, these changes will not increase the number of students who receive special education services under the IDEA.  Additionally, districts may need to revise their policies and procedures regarding the ADA and Section 504 to implement the Amendment Act’s new broader standards.