ADAAA becomes law in 2008 and strengthens 504 & ADA

Even though this law was changed effective 2008, I am continuing to get calls regarding
inappropriate denials of 504 Plans for children with AD/HD, Bipolar and HFA every school
year. High functioning and gifted students may still qualify for a 504 plan with
appropriate and necessary accommodations even though they are passing all classes,
standardized tests and are on grade level and when their medication has reduced their
disabilities symptomology.

For educational impact, schools must consider more than just academics. For example, they
must also consider behavior, social, emotional, organization, work completion, homework,
taking 3 times as long to complete assignments, taking meds at school, missing school for
doctor and therapy appts., etc.

Additionally - Schools now must consider the students disability when they are off
medication and cannot deny Eligibility of 504 due to the ameliorating effects of the
medications mitigating measures. New key words to learn.

Here is a great link to an over view by Spec. Ed. Attorney, Matt Cohen.
<http://www.parentcenternetwork.org/assets/files/national/Webinars/504ADAParentCenterWebin
ar.pdf>
http://www.parentcenternetwork.org/assets/files/national/Webinars/504ADAParentCenterWebina
r.pdf

Below is information from COPAA (Council of Parent Advocates and Attorneys)

Advocacy & Consulting Services - IEPadvocate4you
Carol Sadler, Special Education Consultant/Advocate
GA Advocacy Office PLSP I Graduate
770-442-8357
1105 Rock Pointe Look
Woodstock, GA 30188
CarolSadler@bellsouth.net <blocked::mailto:CarolSadler@bellsouth.net>
www.IEPadvocate4You.com <blocked::http://www.iepadvocate4you.com/>
http://iepadvocate4you.blogspot.com <blocked::http://iepadvocate4you.blogspot.com/>

IEPadvocate4you also now on Facebook, LinkedIn and Twitter

https://www.facebook.com/pages/IEPadvocate4you-Carol-Sadler-Special-Education-ConsultantAd
vocate/139597000964

http://www.linkedin.com/in/carolsadleriepadvocate4you



"There is nothing more unequal than the equal treatment of unequal people." ---- Thomas
Jefferson

"Refrain from Restraining, Secluding and Corporal Punishment & Aversives are Abusive and
Dehumanizing" ---- Carol Sadler, Advocate

GNET=GetNoEducation/Therapy=PsychoNOed=Jail without Jury or Trial=Imprisonment without
Legal Representation



CONFIDENTIAL AND PRIVILEGED
Information contained in this communication is confidential and privileged. It is not
meant to represent legal or medical advice, but rather advice given based on my knowledge
as a trained Parent Advocate by the GA Advocacy Office, Council of Parent Advocates &
Attorneys, CHADD, LDA, the GA DOE Parent Mentor program as an invited guest and the
special education attorneys that I often work with on educational matters. Please do not
forward without my permission.





From COPAA

ADAAA Becomes Law, Strengthens 504 & ADA

Please feel free to redistribute and share this ADAAA post, as long as you give credit to
COPAA.



Dear COPAAns,

Today, the ADA Amendments Act (ADAAA), S.3406, was signed into law. The ADAAA overturns a
decade of jurisprudence that has barred the door to ADA eligibility for many people with
disabilities, including epilepsy, diabetes, intellectual and developmental disabilities,
muscular dystrophy, and cancer, among many others. The reforms in the law will apply to
both the ADA and Section 504 of the Rehabilitation Act. The reforms will restore the
intent of the bipartisan Congress that passed the ADA in 1990. At the same time, the bill
is a compromise, as much legislation is. As you know, COPAA has worked in support of this
important bill. The ADAAA will take effect in January 2009. COPAA will be providing more
information about the ADAAA and its impact on Section 504 in the near future. We thank
Senators Harkin and Hatch, and HELP Chair Senator Kennedy and Ranking Member Senator Enzi
for their leadership. We also thank the many members of Congress who supported the bill,
and the broad coalition of disability and employer groups who worked so hard for its
passage.

Below are more details on the ADAAA for those who are interested.

It is important to understand that the ADA and Section 504 define disability in a similar
way, and therefore, ADA case law is applicable to 504 cases. Because the harmful ADA
cases were also applicable to 504, the reforms apply to both laws. These reforms include
the following highlights.

First, the ADAAA overturns in large part the Supreme Court's decision in Sutton v. United
Airlines, which held that people with disabilities were not eligible under the ADA if
their conditions could be mitigated by medication, assistive technology and equipment, or
learned behavioral adaptations. The law also overturns Sutton's holding that a disability
must limit more than one major life activity. Moreover, the bill will clarify that major
life activities include working, communicating, concentrating, thinking, reading, and
other activities of central importance. Although Sutton arose in the ADA context, its
holding was equally applicable to 504 cases, and thus, the override is made applicable to
504..

When Congress passed the ADA in 1990, it intended to protect people whose disabilities
"substantially" limit them from performing major life activities. But the Supreme Court
in Toyota v. Williams interpreted this term very narrowly and turned into a barrier to ADA
eligibility, requiring that the person be severely restricted in his/her ability to
perform major life activities. The Equal Employment Opportunity Commission similarly
defined the term as "significantly restricted." Again, although Toyota was an ADA case,
its holding was also applicable to 504. The ADAAA overrides Toyota for both the ADA and
504. It states in its findings that the Supreme Court in Toyota, and the EEOC in its
regulations, set the standard too high by defining "substantially limited" to require that
the restriction be "significant," or "severe." The Senate bill will thus restore the
standard Congress intended-that the impairment simply be a substantial limitation. This
finding is particularly important and we will be giving more guidance about it in the
future. The ADAAA further states that the ADA must be interpreted to give full force and
effect to these findings.

The ADAAA Statement of Senate Managers explains what "substantially limited" means,
emphasizing the same language that Congress used in 1990:

A person is considered an individual with a disability for purposes of the first prong of
the definition when [one or more of] the individual's important life activities are
restricted as to the conditions, manner, or duration under which they can be performed in
comparison to most people. A person who can walk for 10 miles continuously is not
substantially limited in walking merely because on the eleventh mile, he or she begins to
experience pain because most people would not be able to walk eleven miles without
experiencing some discomfort.


In addition to these reforms, the ADAAA removes from ADA's "regarded as" prong of the
disability definition the requirement that an individual demonstrate that he or she has,
or is perceived to have, an impairment that substantially limits a major life activity.
There are other reforms in the bill, as well.

Like the House legislative history, the Senate legislative history makes clear merely
because someone with a specific learning disability can perform well academically does not
mean that he/she may not also be substantially limited in the major life activities of
learning, reading, writing, thinking, and speaking. Of course, the person would still
need to establish that he/she was substantially limited in this manner and that he/she
needed reasonable accommodations. The legislative history also makes clear that the 11th
Circuit in Littleton v. Wal-Mart Stores, Inc. was incorrect to decide that a person with
mental retardation was not disabled because he could drive a car and communicate with
words.

Importantly for children with disabilities, the ADAAA applies equally to 504. Unlike the
situation with employment, most school districts appropriately applied the law to 504
eligibility questions, and accommodated a range of students with disabilities. Thus, the
ADAAA will not make any substantial changes in what most districts already do. But the law
provides an important remedy for those children who have inappropriately been denied 504
eligibility. COPAA had received reports of some school districts denying 504 eligiblity
to children with diabetes, life-threatening food allergies, learning disabilities, ADHD,
Aspergers Syndrome, and other disabilities. For example, one school district argued that
because a 6yo with a life-threatening nut allergy could care for himself about as well as
other 6yos, and because he could breathe just fine when not suffering from anaphylaxis, he
wasn't substantially limited and didn't have a disability under 504. Other 504 situations
involved children with disabilities who are unable to obtain 504 plans with appropriate
behavioral supports and access to appropriately challenging school work.

In the ADAAA, Congress made clear that no child should have the door to 504 shut because
of old, outdated ADA case law that a bipartisan consensus agreed should be changed. The
ADA aspects of the ADAAA are also increasingly relevant as youth with disabilities
transition from school into the world of employment. The ADAAA is a bipartisan law that
represents a significant achievement in protecting the rights of children and adults with
disabilities. Again, it will be effective in January 2009. Thus, if in January 2009, a
child would be entitled to reasonable accommodations under 504, even though he previously
was not because of a mitigating measure or he was not considered "substantially limited,"
the law will protect him. Further information about the law will be provided later and we
are sure many organizations will be providing information.

A copy of the ADAAA (S.3406) is attached to this email. You can also retrieve it by going
to www.congress.gov, and typing S.3406 into the search box. Select the bill that says
S.3406.ENR.

--Jess

(c) Council of Parent Attorneys and Advocates, Inc. (COPAA), 2008.

Please feel free to redistribute and share this post, as long as you give credit to COPAA.


COPAA Member Announcements is a member service from the Council of Parent Attorneys and
Advocates.

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