A new letter from the Office for Civil Rights at the federal education department details how school districts should act on some changes to federal law regarding people with disabilities. The way I'm reading it, the letter expands the range of students to whom school districts' may have to provide special education services and accommodations, including some who in the past may have been found not to need those services.
The letter is intended to clarify school districts' obligations following amendments made to the Americans with Disabilities Act that took effect in 2009. Those amendments say school districts should define disability very broadly, writes Russlynn Ali, the assistant secretary for civil rights, in a set of questions and answers that accompany the letter.
"Students who, in the past, may not have been determined to have a disability under Section 504 [of the Rehabilitation Act of 1973] and Title II [of the Americans with Disabilities Act] may now in fact be found to have a disability under those laws," the guidance says. "A student whom a school district did not believe had a disability, and therefore did not receive...special education or related services before passage of the Amendments Act, must now be considered under these new legal standards. The school district would have to evaluate the student, as described in the Section 504 regulation, to determine if he or she has a disability and, if so, the district would have to determine whether, because of the disability, the student needs special education or related services."
It goes on: "Specifically, Congress directed that the definition of disability shall be construed broadly and that the determination of whether an individual has a disability should not demand extensive analysis. In most cases, application of these rules should quickly shift the inquiry away from the question whether a student has a disability [and thus is protected by the ADA and Section 504], and toward the school district's actions and obligations to ensure equal educational opportunities."
That last part may raise the ire of school districts who increasingly have been griping about their special education costs rising. In recent years, states have said they are having trouble meeting their financial obligation to special education, too.
Ms. Ali's guidance also says districts should revise their policies and procedures regarding who should get special education services and what those services are if their current policies and procedures don't incorporate the amendments to the ADA. "As noted above, the definition of disability is to be interpreted broadly, so determining whether one has a disability should not demand extensive analysis."
There is a lot more to this guidance. For instance, the guidance points out that a student has a disability under Section 504 and Title II if a major life activity is substantially limited by his or her impairment—but those impairments aren't limited to ones involving learning. An example: "A student with ulcerative colitis is substantially limited in the operation of a major bodily function, the digestive system. These students would have to be evaluated, as described in the Section 504 regulation, to determine whether they need special education or related services."
For students found not to need special education or related services, Ms. Ali's guidance goes on to say that the district must still consider whether a student is entitled to a reasonable modification of policies, practices, or procedures. An example: A student who has a physical disability based on a lung condition that substantially limits walking and mobility should be allowed to use the faculty elevator because the student needs assistance in traveling between classes, even though the school rule generally prohibits student use of the elevator.
Laura Kaloi, public policy director for the National Center for Learning Disabilities, praised the new guidance—at least in general.
"OCR has issued much-needed guidance to help schools implement the provisions of the ADA Amendments Act and how schools identify and serve individuals with disabilities," she said.
But the guidance doesn't go far enough, she said. The OCR stopped short of clarifying an issue that has arisen since the Education Department's office of special education issued regulations in 2007 regarding revocation of parental consent for services under the IDEA. She said some states have taken the position that an OCR letter from 1996 can be used to avoid an examination of potential 504 eligibility if a parent has revoked consent for services under IDEA. "This is an incorrect use of the letter and OCR should make that clear."
Her organization provides its own guidance on the ADA Amendments and Section 504.