Mar 31, 2009
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.
