1. 1 BRIARCLIFF MANOR SCHOOL DISTRICT The ADA Amendments Act OF 2008 Who is Eligible, What are they Eligible for and How Does it Impact Special Education? Presented by Michael K. Lambert, Esq. Shaw, Perelson, May & Lambert, LLP January 7, 2016

2. 2 Introduction The disabilities of students that must be addressed in public school supervised programs include: The disabilities of students that must be addressed in public school supervised programs include: Educational disabilities, governed by the Individuals with Disabilities Education Improvement Act (IDEA or IDEIA) and Educational disabilities, governed by the Individuals with Disabilities Education Improvement Act (IDEA or IDEIA) and Other disabilities defined by Section 504 of the Rehabilitation Act of 1973/Title II of the Americans with Disabilities Act (ADA). Other disabilities defined by Section 504 of the Rehabilitation Act of 1973/Title II of the Americans with Disabilities Act (ADA).

3. 3 Introduction All educationally disabled students under IDEA are also disabled within the definitions of Section 504/Title II of the ADA. All educationally disabled students under IDEA are also disabled within the definitions of Section 504/Title II of the ADA. All Section 504/ADA students are not educationally disabled within the meaning of IDEA. All Section 504/ADA students are not educationally disabled within the meaning of IDEA. Changes with respect to Section 504/ADA eligibility standards may have both a direct and an indirect impact upon the District’s special education programs, to include eligibility for IDEA services. Changes with respect to Section 504/ADA eligibility standards may have both a direct and an indirect impact upon the District’s special education programs, to include eligibility for IDEA services.

4. 4 IDEA VS. Section 504 Purpose Purpose IDEA – an education act to ensure that all students with disabilities are offered a free appropriate public education IDEA – an education act to ensure that all students with disabilities are offered a free appropriate public education 504 – a civil rights law that prohibits discrimination solely on the basis of disability in any program receiving federal funding 504 – a civil rights law that prohibits discrimination solely on the basis of disability in any program receiving federal funding

5. 5 IDEA VS. Section 504 Who is Protected? Who is Protected? IDEA – 13 categories IDEA – 13 categories 504 – much broader definition of disability 504 – much broader definition of disability Duty to Provide FAPE Duty to Provide FAPE IDEA – through an IEP. Offer educational program that is reasonably calculated to lead to meaningful educational benefit IDEA – through an IEP. Offer educational program that is reasonably calculated to lead to meaningful educational benefit 504 – education comparable to that provided to non-disabled students 504 – education comparable to that provided to non-disabled students

6. 6 IDEA VS. Section 504 Necessary Services: Necessary Services: IDEA – must have disability and require special education IDEA – must have disability and require special education 504 – disability only 504 – disability only Funding: Funding: IDEA – Districts receive supplemental funding IDEA – Districts receive supplemental funding 504 – No supplemental funding 504 – No supplemental funding

7. 7 IDEA VS. Section 504 Child Find: Child Find: IDEA – yes IDEA – yes 504 - yes 504 - yes Notice/Consent: Notice/Consent: IDEA – very specific/set forth in law and regulation IDEA – very specific/set forth in law and regulation 504 – broader 504 – broader Compliance with IDEA satisfies 504 requirements Compliance with IDEA satisfies 504 requirements

8. 8 IDEA VS. Section 504 Eligibility: Eligibility: IDEA – CSE meeting IDEA – CSE meeting 504 – group of people knowledgeable about the child. Parental involvement not mandatory 504 – group of people knowledgeable about the child. Parental involvement not mandatory Due Process Due Process IDEA – due process hearings and State Complaints IDEA – due process hearings and State Complaints 504 – compliance officer and grievance procedure. Enforced by OCR 504 – compliance officer and grievance procedure. Enforced by OCR

9. 9 IDEA VS. Section 504 Plan Plan IDEA – written IEP IDEA – written IEP 504 – 504 plan. 504 – 504 plan. Not required to be written Not required to be written Always should be written Always should be written

10. 10 Section 504 of the Rehabilitation Act of 1973 “No otherwise qualified individual with a disability in the United States, as defined in Sec.706(8) of this title, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...” “No otherwise qualified individual with a disability in the United States, as defined in Sec.706(8) of this title, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...” ADAAA modified language to state, “no covered entity shall discriminate against a qualified individual on the basis of disability.” ADAAA modified language to state, “no covered entity shall discriminate against a qualified individual on the basis of disability.”

11. 11 Original Intent of Section 504/ADA “Provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and provide broad coverage.” “Provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and provide broad coverage.”

12. 12 Steps in 504 Process Referral Referral Evaluation Evaluation Eligibility determination Eligibility determination Accommodation plan developed Accommodation plan developed Periodic reevaluation Periodic reevaluation

13. 13 Physical or Mental Impairment DEFINITION: If the person DEFINITION: If the person Has a physical or mental impairment that substantially limits one or more of his or her major life activities; Has a physical or mental impairment that substantially limits one or more of his or her major life activities; Has a record of such an impairment (not addressed); or Has a record of such an impairment (not addressed); or Is regarded as having such an impairment (not addressed) Is regarded as having such an impairment (not addressed) Does not apply to impairments that are transitory and minor (expected duration of 6 months or less) Does not apply to impairments that are transitory and minor (expected duration of 6 months or less)

14. 14 Physical or Mental Impairment Defined very broadly Defined very broadly Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito- urinary; hemic and lymphatic; skin and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito- urinary; hemic and lymphatic; skin and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

15. 15 Physical or Mental Impairment Temporary Medical Conditions due to illness or injury. Temporary Medical Conditions due to illness or injury. The question or whether a temporary impairment is a disability must be resolved on a case-by-case basis, taking into consideration both the substantial duration (or expected substantial duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual The question or whether a temporary impairment is a disability must be resolved on a case-by-case basis, taking into consideration both the substantial duration (or expected substantial duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual

16. 16 Physical or Mental Impairment Pregnancy is not considered an impairment, however, if a student suffers complications that substantially limit a major life activity, then the pregnancy-related complications may be a temporary disability Pregnancy is not considered an impairment, however, if a student suffers complications that substantially limit a major life activity, then the pregnancy-related complications may be a temporary disability

17. 17 Physical or Mental Impairment ADD/ADHD - a student who has ADD or ADHD is entitled to services under Section 504 if the impairment is of such severity that it limits a major life activity such as learning. A student is eligible under the IDEA rather than just Section 504 if the student needs special education as a result of having ADD or ADHD. ADD/ADHD - a student who has ADD or ADHD is entitled to services under Section 504 if the impairment is of such severity that it limits a major life activity such as learning. A student is eligible under the IDEA rather than just Section 504 if the student needs special education as a result of having ADD or ADHD.

18. 18 Physical or Mental Impairment Mental Conditions - Oppositional Defiance Disorder, Bipolar Disorder Mental Conditions - Oppositional Defiance Disorder, Bipolar Disorder The EEOC has acknowledged that bipolar disorder, formally called manic depressive psychosis is a disability under the ADA. Cases “have distinguished between claims of personality conflicts with others, or mere temperament and irritability, which do not amount to ‘disability’ under the ADA and medically diagnosed mental conditions.” The EEOC has acknowledged that bipolar disorder, formally called manic depressive psychosis is a disability under the ADA. Cases “have distinguished between claims of personality conflicts with others, or mere temperament and irritability, which do not amount to ‘disability’ under the ADA and medically diagnosed mental conditions.”

19. 19 Physical or Mental Impairment Tourette’s Syndrome - The New York State Commissioner of Education noted that a child with tourette’s syndrome may be protected under Section 504 of the Rehabilitation Act: “which entitles him to an assessment by a multi disciplinary team to recommend those accommodations and modifications necessary to meet the ‘educational needs of the child as adequately as the needs of non-disabled children are met’.” Tourette’s Syndrome - The New York State Commissioner of Education noted that a child with tourette’s syndrome may be protected under Section 504 of the Rehabilitation Act: “which entitles him to an assessment by a multi disciplinary team to recommend those accommodations and modifications necessary to meet the ‘educational needs of the child as adequately as the needs of non-disabled children are met’.”

20. 20 Substantially Limits DEFINITION: If the person DEFINITION: If the person Has a physical or mental impairment that substantially limits one or more of his or her major life activities; Has a physical or mental impairment that substantially limits one or more of his or her 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 defined in the statute but was defined in the EEOC regulations as being a limitation that “significantly restricts” a major life activity, and in judicial decisions. The term “substantially limits” was not defined in the statute but was defined in the EEOC regulations as being a limitation that “significantly restricts” a major life activity, and in judicial decisions.

21. 21 ADA Amendments Act of 2008 On September 25, 2008 the Americans with Disabilities Amendments Act of 2008 was signed into law. The amendments became effective January 1, 2009. On September 25, 2008 the Americans with Disabilities Amendments Act of 2008 was signed into law. The amendments became effective January 1, 2009. The ADAAA was expressly in response to the U.S. Supreme Court’s rulings in Sutton v. UAL and Toyota v. Williams, as well as the EEOC regulations which, in Congress’ view, were inconsistent with the original Congressional intent and which set too high a standard for eligibility The ADAAA was expressly in response to the U.S. Supreme Court’s rulings in Sutton v. UAL and Toyota v. Williams, as well as the EEOC regulations which, in Congress’ view, were inconsistent with the original Congressional intent and which set too high a standard for eligibility

22. 22 Congressional Intent and Findings Stated intent of Congress was “to restore the intent and protection of the Americans with Disabilities Act of 1990.” Stated intent of Congress was “to restore the intent and protection of the Americans with Disabilities Act of 1990.” Section 2 findings: Section 2 findings: Congress intended the ADA 1990 to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and to provide broad coverage Congress intended the ADA 1990 to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and to provide broad coverage

23. 23 Rules of Construction Regarding Definition of Disability The definition of disability shall be construed in favor of broad coverage, to the maximum extent permitted by the terms of this Act. The definition of disability shall be construed in favor of broad coverage, to the maximum extent permitted by the terms of this Act. The term “substantially limits” shall be interpreted consistently with the findings and purpose of the ADAAA The term “substantially limits” shall be interpreted consistently with the findings and purpose of the ADAAA

24. 24 Rules of Construction Regarding Definition of Disability An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability. An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

25. 25 Rules of Construction Regarding Definition of Disability The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as: The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as: Medication, medical supplies, equipment, or appliances, low vision devices (not including ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; Medication, medical supplies, equipment, or appliances, low vision devices (not including ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

26. 26 Rules of Construction Regarding Definition of Disability Use of assistive technology; Use of assistive technology; Reasonable accommodations or auxiliary aids or services; or Reasonable accommodations or auxiliary aids or services; or Learned behavioral or adaptive neurological modifications. Learned behavioral or adaptive neurological modifications. The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity. The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

27. 27 Rules of Construction Regarding Definition of Disability The term “ordinary eyeglasses or contact lenses” means lenses that are intended to fully correct visual acuity or eliminate refractive error. The term “ordinary eyeglasses or contact lenses” means lenses that are intended to fully correct visual acuity or eliminate refractive error. The term “low vision devices” means devices that magnify, enhance, or otherwise augment a visual image. The term “low vision devices” means devices that magnify, enhance, or otherwise augment a visual image.

28. 28 Major Life Activities DEFINITION: If the person DEFINITION: If the person Has a physical or mental impairment that substantially limits one or more of his or her major life activities; Has a physical or mental impairment that substantially limits one or more of his or her 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.

29. 29 Major Life Activities The ADAAA set forth a nonexclusive list of major life activities, including: The ADAAA set forth a nonexclusive list of major life activities, including: Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working

30. 30 Major Life Activities The ADAA also provided that major life activities include major bodily functions, including but not limited to: The ADAA also provided that major life activities include major bodily functions, including but not limited to: Functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

31. 31 Evaluation Requirement PREPLACEMENT EVALUATION - A school district is required to evaluate a student believed to have a disability prior to the initial placement of the student in a regular or special education program and prior to any significant change in placement. PREPLACEMENT EVALUATION - A school district is required to evaluate a student believed to have a disability prior to the initial placement of the student in a regular or special education program and prior to any significant change in placement.

32. 32 Evaluation Procedures Tests and other evaluation materials must be validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer. Tests and other evaluation materials must be validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer. For example, in the case of ADD/ADHD, evaluation and diagnosis may be done appropriately by trained psychologists, neuropsychologist, psychiatrists and other relevantly trained medical doctors. It may also be appropriate to utilize a clinical team of educational, medical and counseling professionals to diagnose and evaluate ADD/ADHD. For example, in the case of ADD/ADHD, evaluation and diagnosis may be done appropriately by trained psychologists, neuropsychologist, psychiatrists and other relevantly trained medical doctors. It may also be appropriate to utilize a clinical team of educational, medical and counseling professionals to diagnose and evaluate ADD/ADHD. Tests and other evaluation materials must include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient. Tests and other evaluation materials must include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient.

33. 33 Evaluation Procedures Tests must be selected and administered so as to best ensure that, when a test is administered to a student with impaired sensory, manual or speaking skills, the test results accurately reflect the student’s aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student’s impaired sensory, manual or speaking skills (except where those skills are the factors that the tests purports to measure). Tests must be selected and administered so as to best ensure that, when a test is administered to a student with impaired sensory, manual or speaking skills, the test results accurately reflect the student’s aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student’s impaired sensory, manual or speaking skills (except where those skills are the factors that the tests purports to measure). For limited English proficiency students, customized language testing may be required For limited English proficiency students, customized language testing may be required

34. 34 Scope of Evaluation May consist of comprehensive review of school records May consist of comprehensive review of school records IDEA assessments may be used IDEA assessments may be used Medical diagnosis NOT required Medical diagnosis NOT required Responsibility for necessary evaluations rests with District Responsibility for necessary evaluations rests with District

35. 35 Best Practices Get input from a variety of sources Get input from a variety of sources Include on the 504 Team members who work with the student in the area(s) where the disability would logically manifest itself Include on the 504 Team members who work with the student in the area(s) where the disability would logically manifest itself Consider all school environments, including extracurricular activities Consider all school environments, including extracurricular activities

36. 36 Reevaluation A school district shall establish procedures for periodic reevaluation of students who have been provided special education and related services. A reevaluation procedure consistent with IDEA is one means of meeting this requirement A school district shall establish procedures for periodic reevaluation of students who have been provided special education and related services. A reevaluation procedure consistent with IDEA is one means of meeting this requirement

37. 37 Significant Change in Placement An evaluation must be conducted prior to any significant change in placement. An evaluation must be conducted prior 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 building upon return from a 10 day suspension constituted a significant change in placement (Hillsborough County [FL] Sch. Dist., 27 I.D.E.L.R. 730, OCR 1997). Assignment of student to another school building upon return from a 10 day suspension constituted a significant change in placement (Hillsborough County [FL] Sch. Dist., 27 I.D.E.L.R. 730, OCR 1997). Declassification Declassification

38. 38 Consent to Evaluate Pursuant to OCR policy clarification, parental consent is required prior to the conduct of initial student evaluation procedures for the identification, diagnosis and prescription of special education services. Subsequent student evaluations, however, are not subject to parental consent. Pursuant to OCR policy clarification, parental consent is required prior to the conduct of initial student evaluation procedures for the identification, diagnosis and prescription of special education services. Subsequent student evaluations, however, are not subject to parental consent.

39. 39 Educational Settings Academic Settings (LRE) - each disabled student shall be educated to the maximum extent appropriate with students who are nondisabled. Academic Settings (LRE) - each disabled student shall be educated to the maximum extent appropriate with students who are nondisabled. Nonacademic settings (LRE) - each disabled student should participate to the maximum extent appropriate with non- disabled students in nonacademic and extracurricular services and activities. Nonacademic settings (LRE) - each disabled student should participate to the maximum extent appropriate with non- disabled students in nonacademic and extracurricular services and activities.

40. 40 Who Should be Considered for 504 Referral? Significant disciplinary problems Significant disciplinary problems At risk behaviors/substance abuse At risk behaviors/substance abuse Retention being considered Retention being considered Not benefitting from instruction Not benefitting from instruction Chronic health condition Chronic health condition Returning from serious illness or injury Returning from serious illness or injury Referred to CSE but found ineligible Referred to CSE but found ineligible

41. 41 Are You Overclassifying? On average, 1-2% of the student population in any school is likely to be eligible for classification under 504 On average, 1-2% of the student population in any school is likely to be eligible for classification under 504 Standard is to compare student to an “average” student Standard is to compare student to an “average” student Standard is not whether the student is reaching his or her own potential or parental expectations Standard is not whether the student is reaching his or her own potential or parental expectations

42. 42 Who Can Refer? Anyone Anyone Unlike IDEA, the District can reject a parent referral if the District does not have reason to believe that the child has a qualifying disability Unlike IDEA, the District can reject a parent referral if the District does not have reason to believe that the child has a qualifying disability Caution Caution Parents can exercise due process rights or file OCR complaint Parents can exercise due process rights or file OCR complaint

43. 43 Content of Section 504 Plan Good Teaching vs. What’s Needed to Level the Playing Field as a Result of the Student’s Disability Good Teaching vs. What’s Needed to Level the Playing Field as a Result of the Student’s Disability Accommodations should specifically relate to the identified disability Accommodations should specifically relate to the identified disability Important role of general education teacher in determining accommodations necessary to access general education curriculum Important role of general education teacher in determining accommodations necessary to access general education curriculum Do not include special education services in a 504 Plan Do not include special education services in a 504 Plan

44. 44 Common 504 Accommodations Highlighted textbooks Highlighted textbooks Extended time on tests or assignments Extended time on tests or assignments Assistance with note taking Assistance with note taking Extra set of textbooks Extra set of textbooks Assistive technology Assistive technology Enlarged print Enlarged print Behavior intervention plan Behavior intervention plan

45. 45 Common 504 Accommodations Preferential seating Preferential seating Taping lectures Taping lectures Oral tests Oral tests Visual aids Visual aids Frequent breaks Frequent breaks Modified class schedule Modified class schedule

46. 46 Implementation of 504 Plans If you build it, you must implement it If you build it, you must implement it Avoid developing plan calling for the student to determine whether to accept the accommodation Avoid developing plan calling for the student to determine whether to accept the accommodation All involved staff must be made aware of the content of the 504 Plan and their individual role in its implementation All involved staff must be made aware of the content of the 504 Plan and their individual role in its implementation Staff training may be required Staff training may be required

47. 47 QUESTIONS