Yesterday, the Senate passed by unanimous voice vote a measure designed to expand the Americans with Disabilities Act, passed into law in 1990. Now, it joins a similar bill that passed overwhelmingly in the House earlier this year. After differences are, presumably, ironed out in a conference committee and a final bill passes, it will go to President Bush for his expected signature.
Supporters of the legislation say that changes in the ADA are needed to push back against court rulings that have inappropriately narrowed the definition of an “individual with a disability.” Though most of the news coverage has framed this as a workplace issue (as have disability advocacy organizations cheering this vote), there’s important news here for schools and students, too.
But, of course, nothing in federal law is simple. So first, a little background ...
Most people involved in special education know about the federal Individuals with Disabilities Education Act, which guarantees certain protections to students with disabilities. It requires schools to develop individualized education programs for such students that will give them a free, appropriate public education.
But other federal laws also provide protections to students with disabilities, and one of them is Section 504 of the Rehabilitation Act of 1973, called “Section 504” for short. Unlike with the IDEA, the feds don’t provide any money to schools to implement Section 504, but they still have to follow it. The two bills passed by the House and the Senate say explicitly that everything they have changed with regard to the ADA also applies to Section 504.
Every student who is eligible for the IDEA is also covered by Section 504. But a small number of students could possibly be eligible for Section 504 protections but would not be covered by the IDEA. Some examples might be a child with attention deficit hyperactivity disorder and a child with diabetes. Such students may need some accommodations, but perhaps not the full array of services that could come with an IEP.
Where it gets complicated is knowing just which children should be getting Section 504 protections, as I wrote earlier this year. Since the time the ADA was passed, the Supreme Court has adopted some pretty tight restrictions, including a 1999 decision that if a person with a disability could be brought up to the standards of an average peer through “mitigating measures,” ADA protections no longer apply.
This means that a child with diabetes who controls the disease through insulin injections is using a mitigating measure and may no longer be eligible for Section 504 services. The same is true for a child with ADHD whose behavior is controlled by medication, or a child with a visual impairment who uses glasses. Basically, treating your disability could possibly mean forfeiting ADA protection, according to that Supreme Court decision and several more court decisions that followed.
With these two bills, Congress has swept away the concept of “mitigating measures” as a way of losing protection. As Sen. Tom Harkin, a Democrat from Iowa and the chief author of the ADA, said in a press release:
With today’s vote, we have restored the promise of the ADA, which was signed into law 18 years ago. The protections afforded under this historic law have been eroded and the result is that people with serious conditions like epilepsy or diabetes could be forced to choose between treating their conditions and forfeiting their protections under the law. That is not what Congress intended when we passed the law, and this bill is the right fix."
So what could this mean for children? Potentially, more of them could be eligible for Section 504 in schools. How many more, though, is an open question. It’s a fairly small number of children who are Section 504-protected students; in my article, a researcher estimated from surveys that it’s about 1.2 percent of children in schools are on Section 504 plans, compared to about 12 percent covered by the IDEA. The federal government doesn’t require districts to track students receiving 504 accommodations as closely as students covered under the IDEA.
The early assessment offered by Perry Zirkel, a Lehigh University professor and my go-to source for special education law information, though, is that the new law could be “highly significant.” Stay tuned!