The US Office of Civil Rights (OCR) recently addressed the impact of the Americans with Disabilities (ADA) Amendments Act, which took effect on January 1, 2009 in a published Q &A. The new law amends the meaning of "disability" in the ADA and the Rehabilitation Act of 1973 (which includes Section 504). http://www.ed.gov/about/offices/list/ocr/504faq.html
The OCR is evaluating whether any changes in regulations, additional guidance or other publications are needed. However, a key provision that applies to schools and the "mitigating measures" provision of the Act is worthy of note. OCR clarified that school districts cannot consider "mitigating measures," such as medication and hearing aides, in determining whether a student has a disability under Section 504. Please see embedded text below (question #21).
21. May school districts consider "mitigating measures" used by a student in determining whether the student has a disability under Section 504?
- No. As of January 1, 2009, school districts, in determining whether a student has a physical or mental impairment that substantially limits that student in a major life activity, must not consider the ameliorating effects of any mitigating measures that student is using. This is a change from prior law. Before January 1, 2009, school districts had to consider a student’s use of mitigating measures in determining whether that student had a physical or mental impairment that substantially limited that student in a major life activity. In the Amendments Act, however, Congress specified that the ameliorative effects of mitigating measures must not be considered in determining if a person is an individual with a disability.
- Congress did not define the term “mitigating measures” but rather provided a non-exhaustive list of “mitigating measures.” The mitigating measures are as follows: medication; medical supplies, equipment or appliances; low-vision devices (which do not include ordinary eyeglasses or contact lenses); prosthetics (including limbs and devices); hearing aids and cochlear implants or other implantable hearing devices; mobility devices; oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; and learned behavioral or adaptive neurological modifications.