EEOC Seeking Public Comment on Rules Implementing the ADA Amendments Act of 2008

     Last September 25, 2008 President Bush signed the Americans with Disabilties Amendments Act of 2008. The ADA Amendments Act legislatively over turned decisions by the Supreme Court that narrowed the definition of disability under the ADA. Congress found that persons with many types of impairments including epilepsy, diabetes, multiple sclerosis, intellectual disabilities, major depression, and bipolar disorder had been unable to bring ADA claims due to  narrow court  interpretations of the definition of disability. The ADA Amendments Act emphasizes that the definition of disability should be interpreted broadly to cover individuals to the maximum extent permitted by the terms of the ADA.

     Thus, the ADA Amendments Act makes it easier for an individual trying to enforce the ADA to establish that he or she has a disability and is protected under the ADA. The ADA Amendments Act retained the basic definition of disability as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. But the Act changes how these terms should be interpreted. These terms are intepreted in the proposed regulations. For example:

1. The Act directs the Equal Employment Opportunity Commission (EEOC) to revise its regulations defining the term “substantially limits”;

2. The Act and the proposed rules expand the definiton of major life activities to include reading, bending, and communicating. It also includes as major life activities major bodily functions such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions;

3. The Act and the rules state that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in determining whether a person has a disability. This means that things such as medication, medical equipment and devices, prosthetic limbs, low vision devices, and reasonable accommodations that reduce (mitigate) the impact of an impairment on an individual cannot be considered in determining if the individual has a disability;

4. The Act and rules clarify that an impairment that is episodic or in remission is still considered a disability if it substantially limits a major life activity when it is active.

     For more information on the proposed EEOC Rules interpreting the changes in the ADA Amendments Act, the EEOC has provided Questions and Answers on the Notice of Proposed Rulemaking for the ADA Amendments Act of 2008. These Questions and Answers provide information on the changes in the ADA itself, as well as information on the proposed rules. Comments are due  60 days from September 24th and can be submitted by mail, fax or electronically. Written comments should be sent to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE., Suite 4NW08R, Room 6NE03F, Washington, DC 20507. Comments can be faxed to (202) 663-4114 and comments can be sent electronically to http://www.regulations.gov.

 

The ADA/504 and Assistance in Toileting in Public Before School and After School Programs

     I received a great question and comment to my post from last May Toileting Assistance in Child Care and the ADA . That post discussed the requirements under Title III of the ADA to provide toileting assistance to children with disabilities in privately operated day care programs. Yesterday a reader asked whether similar rules apply to public preschool and after school day care programs. The answer is yes.

     Title II of the ADA requires that state and local governmental entities provide equal access to programs and  services to qualified persons with disabilities. Public schools are covered by Title II and their before and after school child care programs are also covered. Section 504 of the Rehabilitation Act also requires equal access to public school services for children with disabilities. Equal access includes equal access to the before and after school child care programs operated by the public schools. The school must consider providing reasonable accommodations to ensure  a child with a disability has equal access to the before or after school child care program.

     For example, in an Office for Civil Rights (OCR) decision Chattahoochee County (GA) School District [see 6 ECLPR (Early Childhood Law and Policy Reporter) 26 (OCR March 5, 2008)], OCR found a school district in violation of 504 because the school district  asked a preschooler’s grandmother to pay for an aide to accompany the child to an after-school daycare program. The child had cerebral palsy and had difficulties walking, eating, and toileting. The school district claimed it could not afford the additional expense involved in providing the aide.

     The Office for Civil Rights  determined that the district had a duty to provide related aids and services unless to do so would fundamentally alter the nature of the program or create an undue burden. OCR first determined that the presence of an additional staff member to assist the child would not fundamentally alter the day care program. Then OCR determined that the district could not show that hiring an aide would create an undue hardship. The Office for Civil Rights found that the cost of an additional staff person to assist the child was only  $40 to $48 a day and was not an undue financial burden. So, the school district violated 504 and Title II of the ADA when it required the grandmother to pay for an aide to assist the child with toileting. Note that in determining whether it was an undue hardship for the school district to provide the toileting assistance for the child, OCR compares the cost of the assistance to the budget for the entire school district. In that light, an accommodation would have to be very costly to be considered an undue hardship on the school district.

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