Published Online: January 31, 2012
Published in Print: February 1, 2012, as Guidance Says More Students May Qualify for Disability Help

Feds Say More Students May Qualify for Disability Services

OCR urges schools to reconsider who gets special services

New guidance from the U.S. Department of Education's office for civil rights warns school districts that the way they define which students should get special services under federal disability laws may not be broad enough.

The guidance, along with a detailed list of questions and answers issued in late January, clarifies district responsibilities under amendments in effect since 2009 that were passed to broaden the Americans with Disabilities Act.

The guidance could open the door for more students to be evaluated for special education services or accommodations provided under Section 504 of the Rehabilitation Act of 1973.

So-called "504 plans" don't provide students with special education services—services that would help them access the curriculum the way that individualized education programs, or IEPs, work under the Individuals with Disabilities Education Act. Instead, such plans address accommodations that would help the students be on a level footing with their peers.

"It's a really nice clarification from the Department of Education. This is how you need to think of these kids who might not qualify for IDEA," said Laura Kaloi, the public-policy director for the National Center on Learning Disabilities, based in New York City. "It's helpful in that it provides a number of examples for school districts to look at to determine whether they're going to need to be evaluating more students under 504."

Rethinking Eligibility

In a series of questions and answers for school districts, the U.S. Department of Education’s office for civil rights offers some details about how Americans with Disabilities Act amendments passed in 2008 expand protection and services for students. Here are excerpts:

How does the Americans with Disabilities Amendments Act alter who is covered under federal disability laws?

The Amendments Act emphasizes that the definition of “disability” should be interpreted to allow for broad coverage. Students who, in the past, may not have been determined to have a disability under federal law may now in fact be found to have a disability.

What is a condition that would require a student to be covered by the law?

Students with a condition that is episodic or in remission, but would significantly limit a “major life activity” if it were active. Some of these include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. They also include major bodily functions such as functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

What are some examples of students who might now be regarded as having a disability by the law?

A student with bipolar disorder would be covered if, during manic or depressive episodes, the student is substantially limited in a major life activity—thinking, concentrating, neurological function, or brain function. A student who has an allergy and requires allergy shots to manage that condition would be covered if, without the shots, the allergy would substantially limit a major life activity, as would a student whose mother is a well-known AIDS activist in the community who is harassed by other students after he transfers schools midyear because other students assume he has AIDS.

The 504 plans are often associated with students who have attention deficit hyperactivity disorder, or ADHD. For those students, a 504 plan might provide for extra time to take tests, or for testing in quiet settings away from the classroom. But the new guidance, clarifying the requirements of the amendments, is clear that such plans may be required for a much larger cross section of students, or, at the least, that more students should be regarded as having a disability even if there are no written plans for them.

"With passage of the Amendments Act, Congress intended to ensure a broad scope of protection under the ADA," reads the letter from Russlynn Ali, the Education Department's assistant secretary for civil rights. It adds: "The question of whether an individual's impairment is a disability under the ADA and Section 504 should not demand extensive analysis."

Answering a Need

Ms. Ali's letter says that the guidance was spurred by her office's responding to complaints and school districts' requests for technical assistance.

One 2009 case involved an Ohio student with a nut allergy. The school district decided the student was not protected under federal disability laws. The office for civil rights found that the district wasn't complying with the new law because the district's written policies said a student whose impairment does not limit learning is not entitled to a Section 504 plan.

The new OCR guidance says districts may have to change their policies and procedures to adhere to federal disability law, which is what the Ohio district was ordered to do.

"When the law affecting [civil] rights changes, school districts must ensure their policies and practices reflect this altered landscape," Ms. Ali said in a statement.

The guidance issued in January is clear that any number of conditions that significantly limit a "major life activity," including sleeping, standing, and walking, or affect a major bodily function, such as those of the bladder, the respiratory system, or the immune system, could trigger protection under the amendments to the ADA.

The federal guidance also cautions districts against using a student's treatment for his or her condition as a reason not to provide a 504 plan. For example, a student with a prosthetic limb in place of a natural one, or a student who takes allergy shots to manage an allergy, would need a 504 plan if, without either the synthetic limb or shots, one of those major life activities would be compromised.

"If a child has sufficient IQ, there are some places that would say they're so smart they couldn't have the disability," Ms. Kaloi of the NCLD said. In other cases, districts might use a student's assistive device as justification for saying a child with a learning disability such as dysgraphia or dyslexia doesn't have a disability.

"Technology is a really good, concrete example. If you're using a laptop to write, it might have spell-check. It might have a read-aloud feature on it," Ms. Kaloi added. "There was a time you could say he doesn't have a disability. We must consider that the child has the disability first, understanding these other supports have been in place and they can't be used against the child."

For years, the use of 504 plans has been inconsistent from district to district. It's unclear how many students have the plans, because the numbers aren't required to be reported to the federal government, unlike for special education students, who have formal IEPs.

Surge to Come?

One studyRequires Adobe Acrobat Reader, by Perry A. Zirkel, a professor of education and law at Lehigh University, in Bethlehem, Pa., found that 1.2 percent of students in kindergarten through 12th grade nationwide have an active 504 plan.

Related Blog

Whether there will be a sudden surge in 504 plans because of the new guidance isn't clear.

"I don't think we're talking about floodgates here," said Kathleen Boundy, a co-director of the Center for Law and Education, an advocacy group, based in Boston. However, she added, "I'm glad to see the guidance. It's a strong reminder: These rights are real and must be implemented in force."

The guidance is sure to be disseminated by parent groups and will likely prompt parent requests for evaluations of their children, said Sonja Trainor, a senior staff attorney for the National School Boards Association, in Alexandria, Va."It will create more paperwork, an administrative burden for school districts who have to evaluate more students."

Still, the guidance is helpful, she said. "This may actually make it easier for districts to decide, 'this is a 504 plan rather than a medical plan.' It may streamline the process," Ms. Trainor said.

It will also put districts on notice about possible discrimination against some students, whether or not they actually need a 504 plan, she said.

One hypothetical example in the OCR guidance involves a child who may be protected under federal disability laws because his mother is a well-known AIDS activist. If the student transferred to another school, and was bullied or harassed because students assumed he had AIDS, he would be regarded as having an impairment and would be protected under federal law, the guidance says.

"If the student is 'regarded as' disabled, he or she does not require accommodation because he or she is not actually disabled," Ms. Trainor said. But the school would have to protect the student under federal civil rights laws that hold districts responsible in cases where they should have reasonably known a student was in danger of harassment or bullying.

While the long-overdue guidance is welcome, it doesn't go far enough, said Candace Cortiella, who runs the website IDEA MoneyWatch, which tracks special education spending.

She said the office for civil rights missed the opportunity to tell districts to consider a 504 plan for students who are evaluated for special education services and found not to need them, or parents who refuse special education services for their children, perhaps because they dislike the school setting in which a child will be placed or the types of services provided.

Instead of keeping the child in a general education setting with no additional support or accommodations, Ms. Cortiella said, "there should be a new discussion about 504."

But too often, she said, districts "slam the folder shut and put it in the drawer."

Vol. 31, Issue 19, Page 6

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