On January 19, 2012, the Office for Civil Rights (“OCR”) issued additional guidance to elementary and secondary schools in a “Dear Colleague” Letter and Questions & Answers on the ADA Amendments Act of 2008 (ADAA FAQs). The ADAA FAQs are timely and provide much-needed guidance to school districts.
OCR enforces Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”). OCR clarifies that Congress’ intent with the ADAA was to ensure a broad scope of protection for qualified disabled individuals. OCR highlighted the following principles of the ADAA: 1) that the ameliorating effects of mitigating measures (other than ordinary eyeglasses or contact lenses) may not be considered in determining whether an individual has a disability; 2) that the scope of “major life activities” is expanded to include non-exhaustive lists of general activities and major bodily functions; 3) that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and 4) that ADA protection extends to individuals who are “regarded as” having a disability, whether or not the individual has a the impairment, and whether or not the impairment is perceived to be a substantial limitation on a major life activity.
The ADAA FAQs make clear that the definition of “disability” under the ADA and Section 504 should be interpreted to allow for broad coverage. In addition, policies and procedures should be updated to reflect the new legal standards established by the ADAA. For example, policies and procedures should reflect determinations of whether a student has a qualifying disability must be made without regard to the ameliorative effects of mitigating measures. School districts should take note that certain major bodily functions are now considered major life activities, such as (but not limited to) functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Importantly, OCR makes clear that the law requires school districts to consider more than just learning as the major life activity that may be substantially limited by the student’s impairment. In other words, school districts must consider how an impairment affects ANY major life activity of the student, and if necessary, must assess what is needed to ensure that student’s equal opportunity to participate in the school’s program.