Thursday, October 25, 2018

How is Section 504 eligibilty determined?

KGK attorney Hope Kirsch answers the question:
What should be considered when a school team is determining Section 504 eligibility for a student?
The ADA Amendment Act (ADAAA) of 2008 increased the number of individuals who are eligible for protections and services under both the ADA and Section 504 of the Rehabilitation Act of 1973. An impairment in and of itself does not mean that a student has a disability.  There must be a substantial limitation on one or more major life activities, which results from the impairment, to be considered as a disability under Section 504 and entitling a student to FAPE.

In order to be afforded the protections of Section 504, a student must meet the definition of a person with a “disability.”  A student has a disability if he/she:
1.      Has a physical or mental impairment that substantially limits one or more major life activities; or
2.      Has a record of such impairment; or
3.      Is regarded as having such an impairment; and
4.      The impairment substantially limits a major life activity.

A school must make an individualized determination as to whether a student has a physical or mental impairment that substantially limits a major life activity.   In light of the ADAAA, the standard used to determine whether a physical or mental impairment substantially limits one or more major life activities is: whether or not “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.”  The impairment must create a significant barrier to the student’s ability to access the same educational opportunities afforded to students without disabilities. It is important to remember that “substantial” doesn’t really mean “substantial” since the ADAAA was passed.  

42 USC 12102 (4)(A) states, "The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act." 

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