The ADA Amendments Act Affects the Definition of "Disability" Under Section 504

The ADA Amendments Act of 2008 became effective on January 1, 2009. This Act amends the Americans with Disabilities Act of 1990 and includes a conforming amendment to Section 504 of the Rehabilitation Act of 1973 that affects the meaning of the term "disability" for Section 504 purposes.

Specifically, the Amendments Act instructs ADA-covered entities to adopt a broader standard when deciding whether an individual is disabled. While the Act does not define this new broad standard, it does state that, with the exception of ordinary eyeglasses and contact lenses, ADA-covered entities can no longer consider the ameliorating effects of mitigating measures in determining whether an individual has a disability. Thus, a student may be disabled even if he or she has a condition that is controlled by medication, physical aids, or similar ameliorative measures. Additionally, the Act clarifies that impairments that are episodic or in remission will be considered disabilities if they would substantially limit a major life activity when active. Further, the Act significantly expands the definition of the term "major life activity" under the ADA. For example, individuals suffering from certain relatively common afflictions, such as insomnia, dyslexia, stuttering and attention deficit disorder, may now, be considered disabled under the statute.

These changes clearly will impact school teams that are considering eligibility issues. The new law will make it more difficult for school districts to take the position that a student is not disabled within the meaning of the ADA or Section 504, which means that more students may qualify for Section 504 plans.

The Department of Education's Office for Civil Rights has indicated that it is reviewing the changes to the ADA to evaluate the effect these changes may have on Section 504 in the school context and may issue regulatory guidance in the coming year. In the meantime, Section 504 teams must continue to engage in an individualized discussion concerning whether a student has a physical or mental impairment that substantially limits one or more major life activities. Additionally, school districts should work to ensure that their 504 Coordinators are up-to-date and that their 504 evaluation process is tailored to comply with a broader definition of "major life activity" and "disability."