Published Online: September 19, 2008
Published in Print: September 24, 2008, as Changes to Disabilities Act Seen As Offering Students Protections

Changes to Disabilities Act Seen as Offering Students Protections

A bill expanding the Americans with Disabilities Act that is headed to the White House could have implications for some students with disabilities.

Congressional lawmakers said the bill was necessary because of court decisions that had narrowed the protections for people with disabilities under the 18-year-old law. If signed into law by President Bush, the measure would also mean changes for Section 504 of the Rehabilitation Act of 1973, which predates the better-known Individuals with Disabilities Education Act.

The IDEA, first passed in 1975, requires schools to give students with disabilities individualized education programs designed to meet their education needs.

Section 504 prohibits discrimination by organizations, such as schools, that receive federal funding.

There is a small group of students who might be covered by Section 504 protections, but not by the IDEA. Examples of pupils who might need a “504 plan” are students with diabetes who need accommodations to maintain proper blood-sugar levels, or students with attention deficit hyperactivity disorder who may need more time to complete tests.

Source of Confusion

But Section 504 has been a source of confusion for some school administrators. (See "Study Finds ‘Section 504’ Rules Source of Confusion for Schools," March 19, 2008.)

Just the fact that a child has a disability is not enough for eligibility under current legal requirements. If a student can be brought up to the standards of an average peer through the use of “mitigating measures,” such as medication, that child is not eligible for Section 504 services. The concept of mitigating measures came from a 1999 U.S. Supreme Court ruling.

The Americans with Disabilities Amendment Act, however, would do away with mitigating measures as a way of denying someone protection under the ADA and Section 504.

The bill also requires that courts interpret the bill broadly, which means giving people with disabilities the benefit of the doubt that they are eligible for protection.

The bill was approved by voice vote in the House on Sept. 17. The House had passed its own version of the bill in June by a vote of 402-17, but ended up voting to suspend the rules and adopt the Senate version.

“This bill better defines who Congress intends to meet the definition of disabled,” Sen. Tom Harkin, D-Iowa, a sponsor of the bill, said during a press conference Sept. 17. “It clarifies that mitigating measures, such as medication, may not be taken into account. It provides guidance as to what is a major life activity. And, most critically, it lowers the threshold for how limiting a condition must be, and insists that courts interpret the ada broadly.”

The White House has released a statement saying President George Bush “looks forward to signing the [bill] into law.”

Under the new changes, more children potentially could be eligible for Section 504 protections in school. How many more, though, is unclear.

Big Changes Unlikely

Rachel A. Holler, the principal of Stewart Middle School in Norristown, Pa., conducted research into Section 504 as her doctoral thesis at Lehigh University in Bethlehem, Pa. From her research, she determined that many schools may have been giving Section 504-related accommodations to students even though they were not legally obligated to do so.

For those schools, little may change, Ms. Holler said.

Jessica Butler, with the Council of Parent Attorneys and Advocates, or COPAA, in Towson, Md., said a small number of schools were denying students Section 504 protections. One example she gave was of a school that said a child did not need accommodations for diabetes because the disease was controlled by insulin.

Another school, according to Ms. Butler, suggested that a child with a severe allergy to nuts did not need accommodations because the allergy appeared only when the child was exposed to nuts.

“Most schools do what they should do” and give students accommodations when necessary, said Ms. Butler, who is the co-chairwoman of the government-affairs committee of COPAA.

But there were some school districts that were beginning to use a stricter interpretation, she said.

“It’s in that context where these reforms could have a potential impact,” she said. “It says to everyone, ‘We’re not going to close doors to civil rights protections for adults, or children.’ ”

Vol. 28, Issue 05, Page 26

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