Recently, the DOJ issued a final rule incorporating the ADA Amendments Act of 2008 (“ADAAA”) into the Title II and Title III regulations. The amended regulations go into effect on October 11, 2016.
The ADAAA, when passed in 2008, expanded coverage for students under Section 504, including removing the consideration of most mitigating measures for eligibility purposes, adding examples of major life activities, and expanding what may substantially limit a major life activity. Like the Title I regulations amended in 2011, the amendments to the Title II and Title III regulations further clarify the interpretation and application of the ADAAA, emphasizing a broader scope of those who receive protection under the Act.
The amended regulations include more examples of impairments, major life activities, and major bodily functions, and provide rules of construction for determining whether an impairment substantially limits a major life activity.
Changes to the Title II regulations include:
- Explanation that the ADA is intended to have broad coverage and that the definition of disability should be construed broadly in order to permit coverage to the maximum extent possible under the ADA.
- Addition of immune system and circulatory system as examples of body systems that may be affected by a physical impairment.
- Addition of dyslexia and ADHD as examples physical or mental impairments.
- Expansion of the non-exhaustive list of examples of major life activities to include: eating, sleeping, standing, sitting, reaching, lifting, bending, learning, reading, concentrating, thinking, writing, communicating and interacting with others.
- Clarification that a major life activity includes major bodily functions.
- Clarification that an impairment need not prevent or significantly or severely restrict a major life activity to qualify as a disability.
- Recognition that some types of impairments in virtually all cases will substantially limit a major life activity, including: deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments, requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy/muscular dystrophy and multiple sclerosis, HIV, major depressive disorder, bipolar disorder, PTSD, TBI, OCD, and schizophrenia.
- Recognition that in determining whether an individual is substantially limited in a life activity, consideration of factors such as the following may be included: conditions under which the individual performs the major life activity; the manner in which the individual performs the major life activity; or the duration of time it takes the individual to perform the major life activity or for which the individual can perform the major life activity.
- Clarification that the focus is on how a major life activity is substantially limited, rather than the outcome an individual can achieve.
- Addition to and clarification of the non-exhaustive list of mitigating measures, including: medication; medical supplies; equipment; appliances; low-vision devices; prosthetics; hearing aids, cochlear implants, and implantable hearing devices; mobility devices; oxygen therapy equipment; assistive technology; reasonable modifications or auxiliary aids and services; learned behavioral or adaptive neurological modifications; or psychotherapy, behavioral therapy, physical therapy.
- Clarification that a public entity is not required to provide reasonable modifications to individuals who are only regarded as having a disability; the duty to provide reasonable accommodations applies only to individuals with an impairment that substantially limits a major life activity or individuals with a record of a disability
- Addition that individuals without disabilities do not have a claim against a public entity for discrimination under the ADA on the basis of not having a disability; this includes claims that an individual with a disability was granted a reasonable modification that was denied to an individual without a disability.
The amendments to the Title II regulations do not define “substantially limits”; however, they include nine rules of construction that apply when determining whether an impairment substantially limits an individual in a major life activity.
- The term “substantially limits” is to be construed broadly; it is not intended to be a demanding standard.
- The threshold issue of whether an impairment substantially limits a major life activity should not demand extensive analysis.
- An impairment can be considered a substantially limiting impairment even if it only substantially limits one major life activity.
- An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
- An impairment is considered a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population; it does not need to prevent or significantly or severely restrict the individual from performing a major life activity.
- The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.
- Scientific, medical, or statistical evidence is not required for the comparison of how an individual’s performance of a major life activity compares to the performance of most people in the general population; however, this evidence is not prohibited.
- The ameliorative effects of mitigating measures, with the exception of ordinary eyeglasses or contact lenses, cannot be considered when determining whether an impairment substantially limits a major life activity.
- The effects of an impairment lasting or expected to last less than six months can be substantially limiting for establishing an actual disability or a record of a disability.
In sum, the ADAAA and its implementing regulations (Titles I, II, and III) broaden coverage for individuals. This emphasis on broad coverage means that a school’s efforts should not be on determining whether a child qualifies as a student with disabilities under Section 504, but instead on determining what, if any, accommodations are necessary.
Contact Michelle Todd, Jennifer Deutch, or Stephanie Jones with your Section 504 and ADAAA questions.