Superintendent's Memo #008-09

State seal, Commonwealth of Virginia

COMMONWEALTH of VIRGINIA
Department of Education

January 23, 2009
TO: Division Superintendents
FROM: Patricia I. Wright, Superintendent of Public Instruction

SUBJECT: Section 504 Guidance Following the ADA Amendments Act of 2008

On January 1, 2009, the newly amended Americans with Disabilities Act of 1990 (ADA) became effective. Changes within the new Act (ADA Amendments Act) have a direct impact upon Section 504 of the Rehabilitation Act of 1973. As such, it is imperative that all public schools become informed of these changes and adjust their policies and procedures when making determinations based on Section 504.

The ADA Amendments Act includes specific guidance for schools to use in determining whether an impairment "substantially limits” a major life activity. The new substantial limitation guidance sets a lower threshold than the previous ADA for determining whether a student has a disability.

The new Act addresses substantial limitation as follows:

The term "substantially limits" shall be interpreted consistently with the findings and purposes of the Act.

  1. An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

  2. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

  3. The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. These include medication, medical supplies, equipment or appliances, low-vision devices, prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies. Furthermore, you cannot consider the use of assistive technology, reasonable accommodations, auxiliary aids or services, or learned behavioral or adaptive neurological modifications. Ordinary eyeglasses and contact lenses are not included in this provision.

The following link to the new ADA Amendments Act may be used to provide guidance in determining whether school divisions need to revise their policies and procedures.

http://dataserver.lrp.com/DATA/servlet/DataServlet?fname=ADAAA2008.pdf

Other changes to ADA that may affect special education services are as follows:

  1. Removes certain species of animals disabled persons can use as “service animals”; provides specific guidance on permissible service animals; clarifies differences between “comfort animals” and “psychiatric service animals”; also includes language relating to the tasks performed by these animals.

  2. “Wheelchair” would include manually and power-driven wheelchairs, mobility scooters, and “other power-driven mobility devices”; policy would set parameters for when these devices must be accommodated.

  3. Adoption of the 2004 ADA Accessibility Guidelines as the new ADA Standards for Accessible Design; “existing facility” would mean a facility in existence on any given date prior to the adoption of the 2004 Accessibility Guidelines; proposing a safe harbor for facilities that are currently in compliance with either the 1991 ADA Standards or Uniform Federal Accessibility Standards (UFAS).

  4. Appropriate steps would be taken by public entities to ensure that communications with individuals with disabilities (ex., applicants, participants, members of the public and their companions) are as effective as communications with others.

  5. Added examples of “auxiliary aids” include Braille displays, screen reader software, magnification software, optical readers, secondary auditory programs, and accessible electronic and information technology.

  6. Definition of a person with a disability contains the addition of reading, concentrating, thinking, communicating, bending, lifting, standing, sleeping, and eating as ‘major life activities’ along with the currently established major life activities of learning, working, breathing, speaking, walking, hearing, seeing, performing manual tasks, and caring for one’s self. The term ‘major life activity’ also includes the operation of a major bodily function.

  7. An impairment does not have to limit or be perceived to limit a major life activity in order for a person to meet the ‘regarded as having an impairment’ definition. This definition of disability does not apply to impairments that are transitory (actual or expected duration of six months or less) and minor.

Please be advised that final Section 504 regulations will not be available for another six to nine months. Further guidance will be provided when the regulations are finalized. We look forward to continuing to work with school divisions across the state to ensure compliance with Section 504 requirements and equal access to quality education. For more information, you may contact Dr. Sandra E. Ruffin, director of federal program monitoring, at Sandra.Ruffin@doe.virginia.gov, 804) 225-2768. You may also contact Mrs. Bonnie B. English, civil rights monitoring specialist, at (804) 225-2618 or Bonnie.English@doe.virginia.gov.

PIW/SER/bbe