OCR, Section 504, and the ADA

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Revised Department of Justice ADAAA Regulations, Effective October 11, 2016 *

SUMMARY: The Department of Justice (Department) is issuing this final rule to amend its Americans with Disabilities Act (ADA) regulations in order to incorporate the statutory changes to the ADA set forth in the ADA Amendments Act of 2008 (ADA Amendments Act or the Act), which took effect on January 1, 2009. In response to earlier Supreme Court decisions that significantly narrowed the application of the definition of ‘‘disability’’ under the ADA, Congress enacted the ADA Amendments Act to restore the understanding that the definition of ‘‘disability’’ shall be broadly construed and applied without extensive analysis. Congress intended that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their statutory obligations not to discriminate based on disability. In this final rule, the Department is adding new sections to its title II and title III ADA regulations to set forth the proper meaning and interpretation of the definition of ‘‘disability’’ and to make related changes required by the ADA Amendments Act in other sections of the regulations.

The JDSUPRA Business Advisor advised its readers on 10/5/2016:

Of particular significance is the addition of attention deficit hyperactivity disorder and dyslexia to the list of examples of mental and physical impairments, and the addition of “writing” and “interacting with others” to the list of examples of major life activities (which also include caring for one’s self, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, reading, speaking, breathing, learning, concentrating, thinking, communicating, and working, in addition to the operation of major bodily functions).  Further, the new regulations add a new section on “predictable assessments” which list a number of impairments that “in virtually all cases” will result in a determination that an individual has an actual disability.  The list of such impairments include major depressive disorder, bipolar disorder, post-traumatic stress-disorder, traumatic brain injury, obsessive compulsive disorder, and schizophrenia (the list also includes: deafness, blindness, intellectual disability, partially or completely missing limbs, autism, cancer, cerebral palsy, diabetes, epilepsy, and HIV).

Click here for the full text of the Title II, Title III, and ADA Final Regulations Effective October 11 2016

New Guidance from OCR regarding children with ADHD *

New 7/27/2016:  The Office for Civil Rights has issued additional guidance for schools regarding children with ADHD.     “Over the last five years, OCR has received more than 16,000 complaints that allege discrimination on the basis of disability in elementary and secondary education programs, and more than 10 percent involve allegations of discrimination against students with ADHD. The most common complaint concerns academic and behavioral difficulties students with ADHD experience at school when they are not timely and properly evaluated for a disability, or when they do not receive necessary special education or related aids and services. ”   Included in the link above is a 34 page Resource Guide.  Additionally, OCR also issued a two page Know Your Rights Document for parents.

Today’s guidance provides a broad overview of Section 504 and school districts’ obligations to provide educational services to students with disabilities, including students with ADHD.

Office for Civil Rights Federal Regulations on Section 504 *

34 CFR 104 Section 504 Regulations  OR (PDF version)

34 CFR 104 Section 504 Regulations (PDF)

Comparison of 504 and the IDEA *

The primary (not the only) difference between Section 504 and the IDEA is that in order to qualify for services under Section 504, a student would only need related services or modifications in order to receive a free appropriate public education (FAPE) whereas under the IDEA, a student must need specially designed instruction (special education) in order to qualify.  Nevertheless, while FERPA replaces HIPAA with respect to student records, IDEA does NOT replace Section 504.   All disabled children are protected by Section 504 of the Rehabilitation Act, which is why parents of children receiving special education have the option of filing an ADA/504 directly with OCR.  (Parents of children receiving special education must file procedural complaints with the State Educational Agency. )  However, OCR has always taken the position, a position supported by the federal regulations, that disabled students have the same right to FAPE as students entitled under the IDEA.   Therefore, while Section 504 only guarantees employees in the workplace “reasonable accommodations,” that same limitation does not apply to students, who are entitled (as under IDEA) to whatever special education, related services, technological support, or reasonable modifications that might be necessary to provide FAPE.   FAPE under Section 504, however, is defined a little differently than under the IDEA.   The courts have variously defined FAPE under the IDEA as an education that provides a student with more than non trivial benefit, whereas 504 requires that students receive whatever services might be needed to level the playing field.   Or in the language of the 504 regulations themselves (see link to 34 CFR 104 above),

(b) Appropriate education. (1) For the purpose of this subpart, the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of §§ 104.34, 104.35, and 104.36.   34 CFR 104.33

Although parents have essentially the same rights under 504 as they would under the IDEA to administrative remedies and state or federal courts to resolve disagreements, there are nevertheless some other differences that may be important under some circumstances.   I’ve listed some below.

  1.  Manifestation hearing required before suspending student for more than ten consecutive days:  IDEA:  Yes.  504:  Yes
  2. Entitled to services  when Code of Conduct violation a manifestation:   IDEA:  Yes.   504:  Yes.
  3. Entitled to services when NOT a manifestation:   IDEA: Yes.  504:  No.
  4. Parent consent for testing required:   IDEA:  Yes.  504:  Yes, according to the Office for Civil Rights
  5. Parent participation required in planning services:   IDEA Yes.  (IEP team)  504:   No.  (504 Committee)
  6. Parent consent required before implementation of services:   IDEA (IEP):  Yes.  504 (504 Plan;  No)
  7. Schools receive additional funding for child with disability  IDEA:  Yes.   504:  No.

Question:   Are all the rights held by disabled children specified in the IDEA or Section 504?

Answer:   The answer, of course, is no.   There are a number of other federal laws that may be invoked by the parents of children with disabilities in an effort to insure that they receive all the services to which they are entitled.   Title VI and Title IX of the Civil Rights Acts are also enforced by the Office for Civil Rights. Parents of children with disabilities would have the same rights as the parents of any child to seek redress of alleged discrimination based on race, color, national origin, or sex in federal courts.  While administrative remedies must be exhausted before seeking redress in the courts when parents allege that a school failed to provide their child with FAPE, not all alleged injuries incurred by children with disabilities in school are educational injuries.   In those cases where FAPE is not an issue and administrative remedies could not provide the relief sought by parents  (e.g., damages), they may apply directly to federal district court.  Administrative remedies are available under both the IDEA and 504 when FAPE is an issue between a school and parent.   Admnistrative remedies are not available in those rare instances where the disagreement is between parents and the state; in those uncommon instances parents may also apply directly to the federal courts.

 

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November 12, 2014 Letter to  Colleagues regarding regarding communication rights

Letter to Colleagues re Effective Communication
FAQs re Effective Communication

US Dept.of Education  Regulations Implementing Section 504
34cfr104 sec 504 regulations

The ADA and Section 504 *

Key phrases and words in  Section 504 are defined by law in the Americans with Disabilities Act.  That law was amended by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).  The following OCR guidance was either amended or issued to help public educators understand the changes and how they affected eligibility and services for children with disabilities.

OCR’s FAQ regarding Section 504
Frequently Asked Questions About Section 504 and the Education of Children with Disabilities

More FAQs from OCR on 504
OCR-504faq-201109

OCR Questions and Answers Regarding the ADAAA
Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools

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While the guidance above is helpful, guidance does not necessarily carry the force of law.  Federal law, of course, does because it IS the law.   The Americans with Disabilities Act of 2008, unlike the implementing regulations issued by the EEOC, is not very long and can be read in its entirety at the following link:

Americans with Disabilities Act Amendments Act of 2008

The EEOC issued revised regulations for application in the workplace in 2011.  The difference between the burden of employers and the burden of school administrators is that employers are only required to provide “reasonable accommodations” whereas the regulations for schools from Office for Civil Rights in the United States Department of Education (see link above) require schools receiving federal funds to provide children with disabilities FAPE.  Nevertheless, the EEOC’s regulatory implementation of the changes brought about by the 2008 ADAAA can be very helpful in clarifying the Congressional intent.   Those regulations are available for download on this website at:

EEOC 2011 ADA Regulations

Children with learning problems who do not qualify for special education may still qualify for services under Section 504 based on a diagnosis of dyslexia or specific learning disorder (DSM 5).   While the EEOC regulations apply to adults in the workplace, the criteria that they suggest be considered for individuals with learning disabilities  are based on the ADAAA and, therefore, are also applicable to educational decisions in schools.   Excerpts from the EEOC (link above) regulations above are provided below.

Thus, someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in the major life activity of learning because of the additional time or effort he or she must spend to read, write, or learn compared to most people in the general population. As Congress emphasized in passing the Amendments Act, ‘‘[w]hen considering the condition, manner, or duration in which an individual with a specific learning disability performs a major life activity, it is critical to reject the assumption that an individual who has performed well academically cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking.’’ 2008 Senate Statement of Managers at 8. Congress noted that: ‘‘In particular, some courts have found that students who have reached a high level of academic achievement are not to be considered individuals with disabilities under the ADA, as such individuals may have difficulty demonstrating substantial limitation in the major life activities of learning or reading relative to ‘most people.’ When considering the condition, manner or duration in which an individual with a specific learning disability performs a major life activity, it is critical to reject the assumption that an individual who performs well academically or otherwise cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking. As such, the Committee rejects the findings in Price v. National Board of Medical Examiners, Gonzales v. National Board of Medical Examiners, and Wong v. Regents of University of California. The Committee believes that the comparison of individuals with specific learning disabilities to ‘most people’ is not problematic unto itself, but requires a careful analysis of the method and manner in which an individual’s impairment limits a major life activity. For the majority of the population, the basic mechanics of reading and writing do not pose extraordinary lifelong challenges; rather, recognizing and forming letters and words are effortless, unconscious, automatic processes. Because specific learning disabilities are neurologically-based impairments, the process of reading for an individual with a reading disability (e.g. dyslexia) is word-by-word, and otherwise cumbersome, painful, deliberate and slow— throughout life. The Committee expects that individuals with specific learning disabilities that substantially limit a major life activity will be better protected under the amended Act.’’ 2008 House Educ. & Labor Rep. at 10– 11. p. 17012-13  (Emphasis added.)

 

Federal Guidance on Grading and Diplomas
Letter to Runkel 2008

Archived OCR Guidance on the Use of Tests in High Stakes Testing
The Use of Tests in High Stakes

Student rights under Section 504
Student Placement in Elementary and Secondary Schools and Se

Rights of students with disabilities preparing for postsecondary education under Section 504
Students with Disabilities Preparing for Postsecondary Education

Miscellaneous OCR Policy Letters *

Public school responsibilities for students entering higher institutions of learning
Letter from Monroe (2007)

No financial limitation on schools’ responsibility to provide FAPE
Letter to Zirkel re Section 504 FAPE

Joint Memorandum on schools’ responsibilities when ADHD suspected
Joint Policy Memorandum on ADD 1991

Clarification of the Joint Memorandum above
Clarification of School’s Responsiblity to Evaluate

In the Joint Memorandum above, OSEP and OCR issued a Joint Memorandum in which they emphasized that both the IDEA and Section 504 required schools to provide medical evaluations at no cost if ADHD was suspected.  The 1993 Clarification was issued by OCR because apparently many parents were interpreting that to mean that if they requested an ADHD evaluation, then the school was required to provide it.   Not so,  The school IS required to pay for the evaluation but ONLY if it shares in the parent’s suspicion.  If it does not, the school may decline the parent request but must make also apprise them of their right to appeal.