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Expert: Feds Gave More Questions Than Answers on Disability Law

Some people welcomed the new guidance provided by the Office for Civil Rights, guidance that clarifies school district responsibilities under amendments to the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.

The guidance could open the door for more students to be evaluated for special education services or accommodations provided under Section 504 of the Rehabilitation Act of 1973.

But one expert on school law, in particular the ADA and Section 504, is more concerned about what the guidance doesn't say.

"If there are more kids eligible, what are they legally entitled to?," said Perry Zirkel, an education professor at Lehigh University in Bethlehem, Pa.

The guidance concentrates on so-called "504 plans," which don't provide students with special education services—services that help them access the curriculum the way that individualized education programs, or IEPs, work under the Individuals with Disabilities Education Act. Instead, these 504 plans address accommodations that would help the students be on level footing with their unimpaired peers.

The guidance, based on the law, appears to expand who could be eligible for such a plan because of changes to federal law, or the extent to which schools are responsible for some students' with health and other issues. For example, a question-and-answer document from the OCR says:

"Before the Amendments Act, a student with a peanut allergy may not have been considered a person with a disability because of the student's use of mitigating measures (e.g., frequent hand washing and bringing a homemade lunch) to minimize the risk of exposure. The student's school may have created and implemented what is often called an 'individual health plan' or 'individualized health care plan' to address such issues as hand and desk washing procedures and EpiPen use without necessarily providing an evaluation, placement, or due process procedures. Now, after the Amendments Act, the effect of the EpiPen or other mitigating measures cannot be considered when the school district assesses whether the student has a disability. Therefore, when determining whether a student with a peanut allergy has a disability, the school district must evaluate whether the peanut allergy would be substantially limiting without considering amelioration by medication or other measures. For many children with peanut allergies, the allergy is likely to substantially limit the major life activities of breathing and respiratory function, and therefore, the child would be considered to have a disability. If, because of the peanut allergy the student has a disability and needs or is believed to need special education or related services, she has a right to an evaluation, placement, and procedural safeguards. In this situation, the individual health plan described above would be insufficient if it did not incorporate these requirements as described in the Section 504 regulation."

But then what?, asks Zirkel.

"How far do you have to go? What is the entitlement or the right?" he said.

He said he expects the door to be opened for more complaints to the office for civil rights and potentially more lawsuits filed against school districts by parents.

Professor Zirkel did praise one piece of the guidance, a kernel buried in the midst of language about school districts' obligations, because it puts the emphasis on considering whether students need services, not giving those services or accommodations. It reads:

"If, as a result of a properly conducted evaluation, the school district determines that the student does not need special education or related services, the district is not required to provide aids or services. Neither the Amendments Act nor Section 504 obligates a school district to provide aids or services that the student does not need."

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