President Signs ADA Amendments Act of 2008

Finally some good news! Following on the heels of the Senate’s passage last week of the ADA Amendments Act of 2008, President Bush this morning signed the act into law. In a written statement issued prior to the signing the President said:

“The Americans with Disabilities Act is instrumental in allowing individuals with disabilities to fully participate in our economy and society, and the administration supports efforts to enhance its protections. The administration believes that the ADA Amendments Act of 2008 is a step in the right direction, and is encouraged by the improvements made to it during the legislative process.”

This legislation takes effect January 1, 2009 and clarifies that the Americans with Disabilities Act:

Prohibits the consideration of measures that reduce or mitigate the impact of impairment—such as medication, prosthetics and assistive technology—in determining whether an individual has a disability.

Covers workers whose employers discriminate against them based on a perception that the worker is impaired, regardless of whether the worker has a disability.

Provides broad coverage to protect anyone who faces discrimination on the basis of a disability

ADA Amendments Act of 2008 Clears Congress, Awaits President’s Signature

     Last week the ADA Amendments Act passed the Senate and today it has passed the House of Representatives. President Bush is expected to sign this important legislation into law. The amendments legislatively overturn Supreme Court decisions that narrowed the definition of who is considered a person with a disability. This act broadens the definition and restores it to what Congress originally intended. The legislation also interprets the defnition of disability without regard to mitigating factors such as medication and the use of assistive technology.

Senate Passes ADA Restoration Act

     Yesterday afternoon the US Senate passed, by unanimous consent, S. 3406 The ADA Amendments Act of 2008 also known as the ADA Restoration Act. This act overturns Supreme Court decisions that narrowed the definition of disability under the ADA causing many people with disabilities to lose the protections that Congress originally intended.

     The amendments declare that the term “disability” is intended to be construed broadly. Moreover, the bill prohibits considering mitigating measures when determining  whether an impairment substantially limits an individual’s  major life activities. For example, a person with epilepsy is a person with a disability even though their seizures only occur periodically or are generally controlled by medication.

     The bill must now go back to the House of Representatives where it is expected to pass and then be sent President to sign. House Majority Leader Steny Hoyer said at a press conference today, September 15th, that he hopes to bring the bill for full House consideration Wednesday of next week, so it may be signed into law by the end of that week.

10th Circuit Denies Private Residential Placement for Child with Autism Because Progress on “Generalization Skills” Not Necessary to Ensure a “Compliant IEP”

In Thompson R2-J School District v Luke P., a case out of Colorado, the 10th Circuit Court of Appeals has overturned a district court decision ordering the Thompson School District to reimburse the parents of a student with autism for a private residential school placement. The parents of Luke P. believed the school district did not offer an appropriate program for their son who had serious difficulty generalizing the skills he learned in school to his home and other settings. Thus, Luke’s parents placed him in a private residential school that specialized in serving students with autism.

 Luke began receiving special education services in 2000 when he started kindergarten. According to the facts outlined by the court, while Luke made some progress in school, his behavior outside of school and at home seriously regressed from 2000 to 2003. Concerned that as he grew older this behavior would only get worse; in the fall of 2003, his parents located a residential school in Boston that specializes in educating children with autism. At an IEP review meeting with the school district in December 2003, the parents proposed a list of new IEP goals for Luke and believing that Luke needed the structure and support of a residential school, his parents requested a residential school placement. The school district generally accepted the proposed IEP goals, but denied the residential school placement. Luke’s parents withdrew Luke from the public school system and enrolled him in the residential school in Boston in January 2004. They then requested a due process hearing to obtain payment from the school district for the residential school. 

The parents prevailed at the hearing, a State level review, and in federal district court. At each stage the hearing officer or judge determined that while Luke was making some progress in school, he was unable to generalize or transfer the skills he learned in school to his home or other settings outside of school. Thus, placement in a residential school was necessary for Luke to receive a free appropriate education and the school district must reimburse the family for that school’s tuition. The school district appealed to the 10th Circuit. 

Basically, the 10th Circuit applied the Supreme Court’s standard as stated in Board of Education v. Rowley for determining whether a student is receiving a free appropriate public education under the IDEA. In Rowley the Supreme Court directed courts to look at whether the student’s IEP is reasonably calculated to enable the student to receive educational benefits. The 10th Circuit then looked (too narrowly in my view) at whether Luke was making progress on his IEP goals and thus receiving educational benefit.  The Court declared:  “Though one can well argue that generalization is a critical skill for self-sufficiency and independence, we cannot agree with appellees that IDEA always attaches essential importance to it.” So, despite the fact that Luke’s IEP did not adequately address his inability to generalize the behavior he learned at school to his home and other settings, the Court stated that since Luke was making “some” progress in school, he was offered an appropriate education by the school district. Based on the fact that Luke was making “some” progress, the 10th circuit reversed the district courts order that the school district reimburse Luke’s parents for the costs of the residential school placement. 

I believe this decision defines educational benefit too narrowly. I think the fact that Luke was making “some” progress on his IEP goals is insignificant, if, without more intensive services, he would not be able to generalize what he learned in school to other settings. Under this interpretation, despite providing services, Luke’s school program achieves little more than day care. At the end of his school years he will not become more independent in the real world. While Luke may have made, in the Court’s words, “some” progress, he will not have made any real progress. This decision can be appealed to the United States Supreme Court and I believe the parents’ attorneys are considering whether to take that step.

 

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