Pub. 5 2015-2016 Issue 1

29 The Equal Employment Opportunity Commission (EEOC) defines “substantially limits” as, i. The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maxi- mum extent permitted by the terms of the ADA. Substantially limits” is not meant to be a demanding standard ii. An impairment is a disability within the meaning of this section, it substantially limits the ability of an in- dividual to perform a major life activity as compared to the most people in the general population. 29 CFR. 1630.2(j). (May 25, 2011) Major life activities include, but are not limited to, car- ing for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speak- ing, breathing, learning, reading, concentrating, thinking, communicating and working. (42 U.S.C. 12102) The ADA Amendments Act on August 8, 2010 added operations of a major bodily function that substantially limit including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neu- rological, brain, respiratory, circulatory, endocrine, and re- productive functions. When evaluating a student for Section 504 eligibility, it is best not to just consider learning. Make sure you consid- er any other impact on a major life activity or major bodily function. For example; a student with asthma who is miss- ing class time or school to address their medical disability, you would consider the major bodily function of breathing. If a student is doing well with mitigating measures such as medication, can they qualify for Section 504? Decisions to provide services must be made with dis- regard for mitigating factors. When making an eligibility determination for Section 504 services, a school team can- not consider how a disability is “substantially limiting” or not based on the following ADA list of mitigating factors, which include; medication, medical supplies, equipment or appliances, low-vision devices (which do not include ordi- nary eyeglasses or contact lenses), prosthetics, hearing aids or implants, mobility devices, oxygen therapy equipment, assistive technology, learned behavioral or adaptive equip- ment. For example; a student with ADHD taking medi- cation, may be successfully accessing the curriculum and not exhibiting extreme behaviors in school. The team must gather information and data prior to the use of the medica- tion. Who should be included in a Section 504 team and what data should be included in determining a student’s Eligibility? According to the Section 504 regulations, the LEA should “ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, meaning of the evaluation data, and the place- ment options. 34 CFR. § 104.35 (c) (3) Best practice would include the LEA, Teacher and parents. Others on the 504 team could include counselors, school psychologists and any others knowledgeable about the student. If the student has an Individual Healthcare Plan (IHP), the team should include the school nurse. The Section 504 regulations, at 34 CFR § 104.35 (c) tells schools how to identify and develop a 504 accommodation plan. A team should draw upon information from a variety of sources, including aptitude and achievement tests, teach- er recommendations, physical condition, social or cultural background and adaptive behavior. There should also be established procedures to ensure that information obtained from all such sources is documented and carefully consid- ered. Note: No medical diagnosis is required for Section 504 eligibility. “Section 504 does not require that a school dis- trict conduct a medical assessment of a student who has or is suspected of having ADHD unless the district determines it is necessary in order to determine if the student has a dis- ability. Williamson County (TN) Sch. Dist., 32 IDELR261 (OCR 2000). Although you cannot require a medical diag- nosis, you can request permission to speak to a doctor to gather more information for a Section 504 evaluation. Par- ents can refuse this request and the school should continue the evaluation without the medical diagnosis. Caution: Delaying a Section 504 evaluation while wait- ing for a medical diagnosis for a disability can be found discriminatory. Where can I learn more about Section 504? Guidance to LEAs and educators is disseminated through executive summaries and information about Sec- tion 504 trainings provided by USOE, Education Equity Section. This guidance is sent to charter school directors and Section 504 coordinators. This article is an overview of Section 504, for more de- tails regarding possible accommodations, updated parent and educator guidebooks and information for assisting students going on to post-secondary schools, and how to avoid complaints, contact Jennifer Slade at Jennifer.Slade@ schools.utah.gov. For other information go to http://schools.utah.gov/ equity/Civil-Rights-Information/Section-504.aspx on our USOE website. References: Disabiltiy Rights Enforcement Highlights, Office For Civil Rights, U.S. Department of Education, Oc- tober 2012. Michelle Diament, Disability-Related Education Com- plaints Trending up, Disability Scoop, March 25, 2015.