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U.S. Department of Education Issues New Guidance on Section 504 and the ADA Amendments Act

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April 16, 2009

The Office for Civil Rights in the U.S. Department of Education ("OCR") recently issued new guidance on Section 504 of the Rehabilitation Act of 1973 ("Section 504") to address the implications of the Americans with Disabilities Amendments Act of 2008 ("ADA Amendments") on Section 504. Section 504 prohibits the discrimination of all individuals with disabilities on the basis of disability by any program or activity which receives or benefits from federal financial assistance which includes school districts. It requires school districts to provide disabled students with a free appropriate public education and sets forth requirements concerning the identification and evaluation of students and the appropriate services and procedural safeguards for students.

The ADA Amendments broaden the disabilities that qualify for protection under the Americans with Disabilities Act ("ADA") and Section 504. Under Section 504 and the ADA, a person has a disability if he or she has a mental or physical impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Among other changes, the ADA Amendments provide additional examples of what may be considered a "major life activity," and broaden the interpretation of a "substantial limitation."

In its guidance, OCR clarifies that the Section 504 regulations are still valid and do not need to be changed in light of the new ADA Amendments. The Section 504 regulations currently contain a non-exhaustive list of the functions that are considered a major life activity. The new ADA Amendments merely provide additional examples of general activities that constitute major life activities, including eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, communicating, and the operation of a major bodily function. OCR clarifies that because the Section 504 regulations include a non-exhaustive list of examples, an activity or function not specifically listed in the 504 regulations but listed in the ADA regulations may still be a major life activity.

OCR also confirms that, under the new ADA Amendments, a school district may no longer consider the ameliorating effects of any mitigating measures that the student is using, except for ordinary eyeglasses or contact lenses, when determining whether a student is eligible to receive accommodations under Section 504. Thus, a student may be disabled even if he or she has a condition that is controlled by medication or physical aids. In addition to listing the mitigating measures that a school district may no longer consider, OCR explains the difference between the effects of ordinary eyeglasses and low-vision devices which may not be considered when determining whether a student is disabled.

In addition, OCR provides some guidance on the meaning of "temporary impairment." It states that "a temporary impairment does not constitute a disability under Section 504 unless its severity is such that it results in a substantial limitation of one or more major life activities for an extended period of time" (emphasis added). Although the guidance does not define "extended period of time," it does point out that the ADA Amendments state that an individual is not "regarded as" disabled if the impairment is transitory or minor. The ADA Amendments define a transitory impairment as one with an actual or expected duration of six months or less.

The guidance also states that the mere fact that a student has a "record of" or is "regarded as" disabled is insufficient, by itself, to trigger Section 504 eligibility. Rather, the student must have an impairment that substantially limits a major life activity in order to be eligible to receive services under Section 504. OCR also acknowledges that the ADA Amendments call for the definition of disability to be broadly construed, and that no single formula or scale should be used to measure whether an impairment "substantially limits" a major life activity.

In addition to clarifying the effects of the ADA Amendments, the guidance also contains answers to frequently asked questions (previously issued by the Chicago OCR office) on Section 504's requirements involving eligibility, evaluation, placement, and procedural safeguards.

The full OCR guidance is posted on OCR's official Web site.

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