OCR Updates Information Regarding 504 and the Rights of Students with Disabilities to Include Changes under the ADA Amendments Act

     Last fall the Americans with Disabilities Amendments Act was passed and signed into law (please see my post President Signs ADA Amendments Act of 2008). The ADA Amendments Act broadened the definition of disability under the ADA and Section 504. In particular it prohibited the consideration of mitigating measures when determining whether an impairment substantially limits an individual’s major life activities. The Office for Civil Rights (OCR) within the US Department of Education has recently revised a document that addresses Frequently Asked Questions about Section 504 and the Education of Children with Disabilities to reflect those changes. (For a general overview of 504 and students with disabilities please see my post Opening the School Door to Section 504.) 

     In the revised document OCR  clarifies that, as of January 1, 2009, when school districts determine whether a student has a disability under 504 school districts “must not consider the ameliorating effects of any mitigating measures the student is using.” 

     The document goes on to state that Congress did not define the term mitigating measures but provided a non-exhaustive list of examples of mitigating measures: medication, medical supplies, equipment or appliances; low vision devices (not including ordinary eyeglasses or contact lenses); prosthetics (including limbs and devices); hearing aids and cochlear implants or other implantable hearing devices; mobility devices; oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; and learned behavioral or adaptive neurological modifications. 

     For example, a student who has epilepsy, but whose seizures are generally controlled by medication, is considered a person with a disability under Section 504 regardless of the mitigating effects of the seizure medication. Or, a student who is hard of hearing, but can hear by using a hearing aid, is considered a person with a disability, regardless of the mitigating effect of the hearing aid. 

     The Frequently Asked Questions about Section 504 and the Education of Children with Disabilities document is a good technical overview of 504 and students with disabilities and this revised version provides helpful guidance on the broader definition of disability under the ADA Amendments Act.

The IDEA and the American Recovery and Reinvestment Act 2009

     The American Recovery and Reinvestment Act 2009 (ARRA) provides significant new funding for services for children with disabilities under the IDEA’s Parts B and C.  These additional IDEA funds are provided under three authorities: (1) $11.3 billion for IDEA Part B grants to states (2) $400 million under Part B Preschool Grants to States (children ages three to five) and (3) $500 million for Part C Grants for Infants and Families (children with disabilities from birth through age two). 

          The Department of Education plans to move quickly, awarding half of this additional IDEA funding by the end of this month, March 2009, and the other half by October 1, 2009. The funds are in addition to the regular Fiscal Year 2009 Part B grants to states. You can find information about each state’s allocation at http://www.ed.gov/about/overview/budget/statetables/recovery.html

          This additional IDEA funding is expected to be temporary and available for only one to three years. The Department of Education, therefore, expects that states and local education agencies will use the funds for “short-term investments that have the potential for long-term benefits…” Examples of possible uses of these funds include: 

  • Obtaining state-of-the art assistive technology devices and providing training in their use to enhance access to the general curriculum for students with disabilities. 

  • Providing intensive district-wide professional development for special education and regular education teachers that focuses on replicating proven innovative strategies in reading, math, writing, and science, and positive behavioral supports to improve outcomes for students with disabilities. 

  • Developing or expanding the capacity to collect and use data to improve teaching and learning. 

  • Expanding the availability and range of inclusive placement options for preschoolers with disabilities by developing the capacity of public and private preschool programs to serve children with disabilities. 

  • Hire transition coordinators to work with employers in the community to develop job placements for students with disabilities. 

          This information is based on fact sheets issued on March 7th by the Department of Education regarding implementing the American Recovery and Reinvestment Act of 2009. Please note that in the second bullet above, I emphasized using using the funds to provide professional development regarding positive behavioral supports. It has been my experience that training in the use of positive behavioral supports is often lacking and can be a critical factor in including children with disabilities in school.




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