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BRIARCLIFF MANOR BRIARCLIFF MANOR SCHOOL DISTRICTSCHOOL DISTRICT

The ADA Amendments Act OF 2008The ADA Amendments Act OF 2008Who is Eligible, What are they Eligible for Who is Eligible, What are they Eligible for

and How Does it Impact Special and How Does it Impact Special Education?Education?

Presented byPresented byMichael K. Lambert, Esq.Michael K. Lambert, Esq.

Shaw, Perelson, May & Lambert, LLPShaw, Perelson, May & Lambert, LLPJanuary 7, 2016January 7, 2016

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IntroductionIntroduction The disabilities of students that must The disabilities of students that must

be addressed in public school be addressed in public school supervised programs include:supervised programs include: Educational disabilities, governed by the Educational disabilities, governed by the

Individuals with Disabilities Education Individuals with Disabilities Education Improvement Act (IDEA or IDEIA) andImprovement Act (IDEA or IDEIA) and

Other disabilities defined by Section 504 Other disabilities defined by Section 504 of the Rehabilitation Act of 1973/Title II of of the Rehabilitation Act of 1973/Title II of the Americans with Disabilities Act (ADA). the Americans with Disabilities Act (ADA).

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IntroductionIntroduction All educationally disabled students under All educationally disabled students under

IDEA are also disabled within the definitions IDEA are also disabled within the definitions of Section 504/Title II of the ADA.of Section 504/Title II of the ADA.

All Section 504/ADA students are not All Section 504/ADA students are not educationally disabled within the meaning educationally disabled within the meaning of IDEA.of IDEA.

Changes with respect to Section 504/ADA Changes with respect to Section 504/ADA eligibility standards may have both a direct eligibility standards may have both a direct and an indirect impact upon the District’s and an indirect impact upon the District’s special education programs, to include special education programs, to include eligibility for IDEA services.eligibility for IDEA services.

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IDEA VS. Section 504IDEA VS. Section 504 PurposePurpose

IDEA – an education act to ensure that IDEA – an education act to ensure that all students with disabilities are offered all students with disabilities are offered a free appropriate public educationa free appropriate public education

504 – a civil rights law that prohibits 504 – a civil rights law that prohibits discrimination solely on the basis of discrimination solely on the basis of disability in any program receiving disability in any program receiving federal fundingfederal funding

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IDEA VS. Section 504IDEA VS. Section 504 Who is Protected?Who is Protected?

IDEA – 13 categoriesIDEA – 13 categories 504 – much broader definition of disability504 – much broader definition of disability

Duty to Provide FAPEDuty to Provide FAPE IDEA – through an IEP. Offer educational IDEA – through an IEP. Offer educational

program that is reasonably calculated to program that is reasonably calculated to lead to meaningful educational benefitlead to meaningful educational benefit

504 – education comparable to that 504 – education comparable to that provided to non-disabled studentsprovided to non-disabled students

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IDEA VS. Section 504IDEA VS. Section 504 Necessary Services:Necessary Services:

IDEA – must have disability and require IDEA – must have disability and require special educationspecial education

504 – disability only504 – disability only Funding:Funding:

IDEA – Districts receive supplemental IDEA – Districts receive supplemental fundingfunding

504 – No supplemental funding504 – No supplemental funding

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IDEA VS. Section 504IDEA VS. Section 504 Child Find:Child Find:

IDEA – yesIDEA – yes 504 - yes504 - yes

Notice/Consent:Notice/Consent: IDEA – very specific/set forth in law and IDEA – very specific/set forth in law and

regulationregulation 504 – broader504 – broader

Compliance with IDEA satisfies 504 Compliance with IDEA satisfies 504 requirementsrequirements

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IDEA VS. Section 504IDEA VS. Section 504 Eligibility:Eligibility:

IDEA – CSE meetingIDEA – CSE meeting 504 – group of people knowledgeable 504 – group of people knowledgeable

about the child. Parental involvement about the child. Parental involvement not mandatorynot mandatory

Due ProcessDue Process IDEA – due process hearings and State IDEA – due process hearings and State

ComplaintsComplaints 504 – compliance officer and grievance 504 – compliance officer and grievance

procedure. Enforced by OCRprocedure. Enforced by OCR

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IDEA VS. Section 504IDEA VS. Section 504 PlanPlan

IDEA – written IEPIDEA – written IEP 504 – 504 plan. 504 – 504 plan.

Not required to be writtenNot required to be written Always should be writtenAlways should be written

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Section 504 of the Section 504 of the Rehabilitation Act of 1973Rehabilitation Act of 1973

““No otherwise qualified individual with a No otherwise qualified individual with a disability in the United States, as defined in disability in the United States, as defined in Sec.706(8) of this title, shall, solely by reason Sec.706(8) of this title, shall, solely by reason of his or her disability, be excluded from the of his or her disability, be excluded from the participation in, be denied the benefits of, or participation in, be denied the benefits of, or be subjected to discrimination under any be subjected to discrimination under any program or activity receiving Federal financial program or activity receiving Federal financial assistance ...”assistance ...”

ADAAA modified language to state, “no ADAAA modified language to state, “no covered entity shall discriminate against a covered entity shall discriminate against a qualified individual on the basis of disability.”qualified individual on the basis of disability.”

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Original Intent of Original Intent of Section 504/ADASection 504/ADA

““Provide a clear and comprehensive Provide a clear and comprehensive national mandate for the elimination national mandate for the elimination of discrimination against individuals of discrimination against individuals with disabilities and provide broad with disabilities and provide broad coverage.”coverage.”

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Steps in 504 ProcessSteps in 504 Process ReferralReferral EvaluationEvaluation Eligibility determinationEligibility determination Accommodation plan developedAccommodation plan developed Periodic reevaluationPeriodic reevaluation

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Physical or Mental ImpairmentPhysical or Mental Impairment DEFINITION: If the person DEFINITION: If the person

Has a Has a physical or mental impairmentphysical or mental impairment that that substantially limits one or more of his or her substantially limits one or more of his or her major life activities;major life activities;

Has a record of such an impairment (not Has a record of such an impairment (not addressed); or addressed); or

Is regarded as having such an impairment (not Is regarded as having such an impairment (not addressed) addressed)

Does not apply to impairments that are Does not apply to impairments that are transitory and minor (expected duration of transitory and minor (expected duration of 6 months or less)6 months or less)

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Physical or Mental ImpairmentPhysical or Mental Impairment Defined very broadlyDefined very broadly Any physiological disorder or condition, Any physiological disorder or condition,

cosmetic disfigurement, or anatomical loss cosmetic disfigurement, or anatomical loss affecting one or more of the following body affecting one or more of the following body systems: neurological; musculoskeletal; systems: neurological; musculoskeletal; special sense organs; respiratory, including special sense organs; respiratory, including speech organs; cardiovascular; speech organs; cardiovascular; reproductive, digestive, genito-urinary; reproductive, digestive, genito-urinary; hemic and lymphatic; skin and endocrine; or hemic and lymphatic; skin and endocrine; or any mental or psychological disorder, such any mental or psychological disorder, such as mental retardation, organic brain as mental retardation, organic brain syndrome, emotional or mental illness, and syndrome, emotional or mental illness, and specific learning disabilities.specific learning disabilities.

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Physical or Mental ImpairmentPhysical or Mental Impairment Temporary Medical Conditions due to Temporary Medical Conditions due to

illness or injury.illness or injury. The question or whether a temporary The question or whether a temporary

impairment is a disability must be impairment is a disability must be resolved on a case-by-case basis, taking resolved on a case-by-case basis, taking into consideration both the substantial into consideration both the substantial duration (or expected substantial duration (or expected substantial duration) of the impairment and the duration) of the impairment and the extent to which it actually limits a major extent to which it actually limits a major life activity of the affected individuallife activity of the affected individual

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Physical or Mental ImpairmentPhysical or Mental Impairment Pregnancy is not considered an Pregnancy is not considered an

impairment, however, if a student impairment, however, if a student suffers complications that substantially suffers complications that substantially limit a major life activity, then the limit a major life activity, then the pregnancy-related complications may be pregnancy-related complications may be a temporary disabilitya temporary disability

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Physical or Mental ImpairmentPhysical or Mental Impairment ADD/ADHD - a student who has ADD or ADD/ADHD - a student who has ADD or

ADHD is entitled to services under Section ADHD is entitled to services under Section 504 if the impairment is of such severity 504 if the impairment is of such severity that it limits a major life activity such as that it limits a major life activity such as learning. A student is eligible under the learning. A student is eligible under the IDEA rather than just Section 504 if the IDEA rather than just Section 504 if the student needs special education as a student needs special education as a result of having ADD or ADHD.result of having ADD or ADHD.

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Physical or Mental ImpairmentPhysical or Mental Impairment Mental Conditions - Oppositional Mental Conditions - Oppositional

Defiance Disorder, Bipolar DisorderDefiance Disorder, Bipolar Disorder The EEOC has acknowledged that bipolar The EEOC has acknowledged that bipolar

disorder, formally called manic disorder, formally called manic depressive psychosis is a disability under depressive psychosis is a disability under the ADA. Cases “have distinguished the ADA. Cases “have distinguished between claims of personality conflicts between claims of personality conflicts with others, or mere temperament and with others, or mere temperament and irritability, which do not amount to irritability, which do not amount to ‘disability’ under the ADA and medically ‘disability’ under the ADA and medically diagnosed mental conditions.”diagnosed mental conditions.”

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Physical or Mental ImpairmentPhysical or Mental Impairment Tourette’s Syndrome - The New York State Tourette’s Syndrome - The New York State

Commissioner of Education noted that a child Commissioner of Education noted that a child with tourette’s syndrome may be protected with tourette’s syndrome may be protected under Section 504 of the Rehabilitation Act: under Section 504 of the Rehabilitation Act: “which entitles him to an assessment by a “which entitles him to an assessment by a multi disciplinary team to recommend those multi disciplinary team to recommend those accommodations and modifications accommodations and modifications necessary to meet the ‘educational needs of necessary to meet the ‘educational needs of the child as adequately as the needs of non-the child as adequately as the needs of non-disabled children are met’.”disabled children are met’.”

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Substantially LimitsSubstantially Limits DEFINITION: If the person DEFINITION: If the person

Has a physical or mental impairment that Has a physical or mental impairment that substantially limitssubstantially limits one or more of his or her one or more of his or her major life activities;major life activities;

Has a record of such an impairment; or Has a record of such an impairment; or Is regarded as having such an impairment. Is regarded as having such an impairment.

The term “substantially limits” was not The term “substantially limits” was not defined in the statute but was defined in defined in the statute but was defined in the EEOC regulations as being a limitation the EEOC regulations as being a limitation that “significantly restricts” a major life that “significantly restricts” a major life activity, and in judicial decisions.activity, and in judicial decisions.

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ADA Amendments Act of 2008ADA Amendments Act of 2008

On September 25, 2008 the Americans On September 25, 2008 the Americans with Disabilities Amendments Act of 2008 with Disabilities Amendments Act of 2008 was signed into law. The amendments was signed into law. The amendments became effective January 1, 2009. became effective January 1, 2009.

The ADAAA was expressly in response to The ADAAA was expressly in response to the U.S. Supreme Court’s rulings in the U.S. Supreme Court’s rulings in Sutton Sutton v. UAL v. UAL and and Toyota v. WilliamsToyota v. Williams, as well as , as well as the EEOC regulations which, in Congress’ the EEOC regulations which, in Congress’ view, were inconsistent with the original view, were inconsistent with the original Congressional intent and which set too Congressional intent and which set too high a standard for eligibilityhigh a standard for eligibility

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Congressional Intent Congressional Intent and Findingsand Findings

Stated intent of Congress was “to Stated intent of Congress was “to restore the intent and protection of the restore the intent and protection of the Americans with Disabilities Act of 1990.”Americans with Disabilities Act of 1990.”

Section 2 findings:Section 2 findings: Congress intended the ADA 1990 to provide Congress intended the ADA 1990 to provide

a clear and comprehensive national a clear and comprehensive national mandate for the elimination of mandate for the elimination of discrimination against individuals with discrimination against individuals with disabilities and to provide broad coveragedisabilities and to provide broad coverage

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Rules of Construction Regarding Rules of Construction Regarding Definition of DisabilityDefinition of Disability

The definition of disability shall be The definition of disability shall be construed in favor of broad coverage, construed in favor of broad coverage, to the maximum extent permitted by to the maximum extent permitted by the terms of this Act.the terms of this Act.

The term “substantially limits” shall The term “substantially limits” shall be interpreted consistently with the be interpreted consistently with the findings and purpose of the ADAAAfindings and purpose of the ADAAA

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Rules of Construction Regarding Rules of Construction Regarding Definition of DisabilityDefinition of Disability

An impairment that substantially An impairment that substantially limits one major life activity need not limits one major life activity need not limit other major life activities in limit other major life activities in order to be considered a disability.order to be considered a disability.

An impairment that is episodic or in An impairment that is episodic or in remission is a disability if it would remission is a disability if it would substantially limit a major life activity substantially limit a major life activity when active.when active.

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Rules of Construction Regarding Rules of Construction Regarding Definition of DisabilityDefinition of Disability

The determination of whether an impairment The determination of whether an impairment substantially limits a major life activity shall substantially limits a major life activity shall be made without regard to the ameliorative be made without regard to the ameliorative effects of mitigating measures such as:effects of mitigating measures such as: Medication, medical supplies, equipment, or Medication, medical supplies, equipment, or

appliances, low vision devices (not including appliances, low vision devices (not including ordinary eyeglasses or contact lenses), ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen hearing devices, mobility devices, or oxygen therapy equipment and supplies;therapy equipment and supplies;

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Rules of Construction Regarding Rules of Construction Regarding Definition of DisabilityDefinition of Disability

Use of assistive technology;Use of assistive technology; Reasonable accommodations or auxiliary Reasonable accommodations or auxiliary

aids or services; oraids or services; or Learned behavioral or adaptive neurological Learned behavioral or adaptive neurological

modifications.modifications. The ameliorative effects of the mitigating The ameliorative effects of the mitigating

measures of ordinary eyeglasses or measures of ordinary eyeglasses or contact lenses shall be considered in contact lenses shall be considered in determining whether an impairment determining whether an impairment substantially limits a major life activity.substantially limits a major life activity.

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Rules of Construction Regarding Rules of Construction Regarding Definition of DisabilityDefinition of Disability

The term “ordinary eyeglasses or The term “ordinary eyeglasses or contact lenses” means lenses that contact lenses” means lenses that are intended to fully correct visual are intended to fully correct visual acuity or eliminate refractive error.acuity or eliminate refractive error.

The term “low vision devices” means The term “low vision devices” means devices that magnify, enhance, or devices that magnify, enhance, or otherwise augment a visual image.otherwise augment a visual image.

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Major Life ActivitiesMajor Life Activities DEFINITION: If the person DEFINITION: If the person

Has a physical or mental impairment Has a physical or mental impairment that substantially limits one or more of that substantially limits one or more of his or her his or her major life activitiesmajor life activities;;

Has a record of such an impairment; or Has a record of such an impairment; or Is regarded as having such an Is regarded as having such an

impairment.impairment.

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Major Life ActivitiesMajor Life Activities The ADAAA set forth a nonexclusive The ADAAA set forth a nonexclusive

list of major life activities, including:list of major life activities, including: Caring for oneself, performing manual Caring for oneself, performing manual

tasks, seeing, hearing, eating, sleeping, tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, walking, standing, lifting, bending, speaking, breathing, learning, reading, speaking, breathing, learning, reading, concentrating, thinking, communicating, concentrating, thinking, communicating, and workingand working

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Major Life ActivitiesMajor Life Activities The ADAA also provided that major The ADAA also provided that major

life activities include major bodily life activities include major bodily functions, including but not limited functions, including but not limited to:to: Functions of the immune system, Functions of the immune system,

normal cell growth, digestive, bowel, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive circulatory, endocrine, and reproductive functions. functions.

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Evaluation RequirementEvaluation Requirement PREPLACEMENT EVALUATION - A PREPLACEMENT EVALUATION - A

school district is required to evaluate school district is required to evaluate a student believed to have a a student believed to have a disability prior to the initial disability prior to the initial placement of the student in a regular placement of the student in a regular or special education program and or special education program and prior to any significant change in prior to any significant change in placement.placement.

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Evaluation ProceduresEvaluation Procedures Tests and other evaluation materials must be validated Tests and other evaluation materials must be validated

for the specific purpose for which they are used and for the specific purpose for which they are used and are administered by trained personnel in conformance are administered by trained personnel in conformance with the instructions provided by their producer.with the instructions provided by their producer. For example, in the case of ADD/ADHD, evaluation and For example, in the case of ADD/ADHD, evaluation and

diagnosis may be done appropriately by trained psychologists, diagnosis may be done appropriately by trained psychologists, neuropsychologist, psychiatrists and other relevantly trained neuropsychologist, psychiatrists and other relevantly trained medical doctors. It may also be appropriate to utilize a clinical medical doctors. It may also be appropriate to utilize a clinical team of educational, medical and counseling professionals to team of educational, medical and counseling professionals to diagnose and evaluate ADD/ADHD.diagnose and evaluate ADD/ADHD.

Tests and other evaluation materials must include Tests and other evaluation materials must include those tailored to assess specific areas of educational those tailored to assess specific areas of educational need and not merely those which are designed to need and not merely those which are designed to provide a single general intelligence quotient.provide a single general intelligence quotient.

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Evaluation ProceduresEvaluation Procedures Tests must be selected and administered so Tests must be selected and administered so

as to best ensure that, when a test is as to best ensure that, when a test is administered to a student with impaired administered to a student with impaired sensory, manual or speaking skills, the test sensory, manual or speaking skills, the test results accurately reflect the student’s results accurately reflect the student’s aptitude or achievement level or whatever aptitude or achievement level or whatever other factor the test purports to measure, other factor the test purports to measure, rather than reflecting the student’s impaired rather than reflecting the student’s impaired sensory, manual or speaking skills (except sensory, manual or speaking skills (except where those skills are the factors that the where those skills are the factors that the tests purports to measure).tests purports to measure).

For limited English proficiency students, For limited English proficiency students, customized language testing may be requiredcustomized language testing may be required

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Scope of EvaluationScope of Evaluation May consist of comprehensive review May consist of comprehensive review

of school recordsof school records IDEA assessments may be usedIDEA assessments may be used Medical diagnosis NOT requiredMedical diagnosis NOT required Responsibility for necessary Responsibility for necessary

evaluations rests with Districtevaluations rests with District

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Best PracticesBest Practices Get input from a variety of sourcesGet input from a variety of sources Include on the 504 Team members Include on the 504 Team members

who work with the student in the who work with the student in the area(s) where the disability would area(s) where the disability would logically manifest itselflogically manifest itself

Consider all school environments, Consider all school environments, including extracurricular activitiesincluding extracurricular activities

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ReevaluationReevaluation A school district shall establish A school district shall establish

procedures for periodic reevaluation procedures for periodic reevaluation of students who have been provided of students who have been provided special education and related special education and related services. A reevaluation procedure services. A reevaluation procedure consistent with IDEA is one means of consistent with IDEA is one means of meeting this requirementmeeting this requirement

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Significant Change in PlacementSignificant Change in Placement

An evaluation must be conducted prior An evaluation must be conducted prior to any significant change in placement.to any significant change in placement. Suspension in excess of 10 school days.Suspension in excess of 10 school days. Assignment of student to another school Assignment of student to another school

building upon return from a 10 day building upon return from a 10 day suspension constituted a significant change suspension constituted a significant change in placement (Hillsborough County [FL] Sch. in placement (Hillsborough County [FL] Sch. Dist., 27 I.D.E.L.R. 730, OCR 1997).Dist., 27 I.D.E.L.R. 730, OCR 1997).

DeclassificationDeclassification

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Consent to EvaluateConsent to Evaluate Pursuant to OCR policy clarification, Pursuant to OCR policy clarification,

parental consent is required prior to parental consent is required prior to the conduct of initial student the conduct of initial student evaluation procedures for the evaluation procedures for the identification, diagnosis and identification, diagnosis and prescription of special education prescription of special education services. Subsequent student services. Subsequent student evaluations, however, are not subject evaluations, however, are not subject to parental consent.to parental consent.

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Educational SettingsEducational Settings Academic Settings (LRE) - each Academic Settings (LRE) - each

disabled student shall be educated to disabled student shall be educated to the maximum extent appropriate with the maximum extent appropriate with students who are nondisabled.students who are nondisabled.

Nonacademic settings (LRE) - each Nonacademic settings (LRE) - each disabled student should participate to disabled student should participate to the maximum extent appropriate with the maximum extent appropriate with non-disabled students in nonacademic non-disabled students in nonacademic and extracurricular services and and extracurricular services and activities.activities.

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Who Should be Considered Who Should be Considered for 504 Referral?for 504 Referral?

Significant disciplinary problemsSignificant disciplinary problems At risk behaviors/substance abuseAt risk behaviors/substance abuse Retention being consideredRetention being considered Not benefitting from instructionNot benefitting from instruction Chronic health conditionChronic health condition Returning from serious illness or Returning from serious illness or

injuryinjury Referred to CSE but found ineligible Referred to CSE but found ineligible

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Are You Overclassifying?Are You Overclassifying? On average, 1-2% of the student On average, 1-2% of the student

population in any school is likely to be population in any school is likely to be eligible for classification under 504eligible for classification under 504

Standard is to compare student to an Standard is to compare student to an “average” student“average” student

Standard is not whether the student is Standard is not whether the student is reaching his or her own potential or reaching his or her own potential or parental expectationsparental expectations

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Who Can Refer?Who Can Refer? AnyoneAnyone Unlike IDEA, the District can reject a Unlike IDEA, the District can reject a

parent referral if the District does not parent referral if the District does not have reason to believe that the child have reason to believe that the child has a qualifying disabilityhas a qualifying disability

CautionCaution Parents can exercise due process Parents can exercise due process

rights or file OCR complaint rights or file OCR complaint

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Content of Section 504 PlanContent of Section 504 Plan Good Teaching vs. What’s Needed to Good Teaching vs. What’s Needed to Level Level

the Playing Fieldthe Playing Field as a Result of the as a Result of the Student’s DisabilityStudent’s Disability

Accommodations should specifically relate Accommodations should specifically relate to the identified disability to the identified disability

Important role of general education Important role of general education teacher in determining accommodations teacher in determining accommodations necessary to access general education necessary to access general education curriculum curriculum

Do not include special education services Do not include special education services in a 504 Plan in a 504 Plan

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Common 504 AccommodationsCommon 504 Accommodations Highlighted textbooksHighlighted textbooks Extended time on tests or Extended time on tests or

assignmentsassignments Assistance with note takingAssistance with note taking Extra set of textbooksExtra set of textbooks Assistive technologyAssistive technology Enlarged printEnlarged print Behavior intervention planBehavior intervention plan

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Common 504 AccommodationsCommon 504 Accommodations Preferential seatingPreferential seating Taping lecturesTaping lectures Oral testsOral tests Visual aidsVisual aids Frequent breaksFrequent breaks Modified class scheduleModified class schedule

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Implementation of 504 PlansImplementation of 504 Plans If you build it, you must implement itIf you build it, you must implement it Avoid developing plan calling for the Avoid developing plan calling for the

student to determine whether to student to determine whether to accept the accommodationaccept the accommodation

All involved staff must be made aware All involved staff must be made aware of the content of the 504 Plan and their of the content of the 504 Plan and their individual role in its implementation individual role in its implementation

Staff training may be required Staff training may be required

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QUESTIONSQUESTIONS