If you’re reading this blog, you’ve probably heard of the ADA – Americans with Disabilities Act – that’s the landmark piece of civil rights 1990 legislation which requires wheelchair accessible bathrooms, for instance. But what you may not know is whether the ADA applies to your disabled child in school. You’d think it would, right? But then, why does everyone talk about the Individuals with Disabilities Education Act (IDEA) all the time? Well, Title II of the ADA does apply to your disabled child in school. Not just with respect to students with physical disabilities in wheelchairs, but also to any student with a disability who needs “accommodations.” You may be more familiar with the term “504 Plan” which comes from Section 504 of the Rehabilitation Act of 1973 – a precursor to the ADA. The 504 law is very similar conceptually to the ADA – if you understand Section 504, you’ll understand the ADA. The good news is that there’s new guidance from the federal government which clarifies (and even extends) how the ADA can help your child in school.
Before I get into the new guidance, I just want to give you an ultra mini legal course in the difference between the ADA and the IDEA. The IDEA is specifically designed for K-12 special education students and provides your disabled child with certain entitlements to instruction and services in school. In other words, if your child has an IEP – the cornerstone of the IDEA – he or she is entitled to specialized instruction and maybe also certain services, such as language therapy, occupational therapy, etc. The ADA is an entirely different concept. It’s a civil rights law aiming to prevent and rectify discrimination against people with disabilities in all walks of life – education, employment, facilities, etc – not just in schools. So, in effect the ADA only comes into play for your disabled child if he or she is not able to participate or “compete” with their peers on a level playing field.
The key way schools can help disabled children participate fully in school in spite of their disabilities is by providing “reasonable accommodations.” Section 504 and the ADA both require that schools make “reasonable accommodations,” such as extended time testing, a wheelchair ramp or verbal prompts to pay attention, to enable persons with handicaps to participate effectively. What accommodations are reasonable depends on the circumstances of the individual case. For more on this see this Wrightslaw article. In sum, with the ADA you compare the opportunities of the disabled with the opportunities for the non-disabled. With the IDEA, you look to what your individual child is entitled to based on his or her unique educational needs.
OK. Now for the good news. In 2008 by some miracle the likes of which I cannot explain, Congress amended the ADA to broaden the definition of “disabled” in short. In other words, students who in the past may not have been considered disabled under Section 504 of the ADA, may now be considered such, and therefore be entitled to reasonably accommodations and other protections from discrimination in school. For more on this see the new Questions and Answers doc from the U.S. Department of Ed. Though that was passed in 2008, the U.S. Department of Education just got around to providing guidance on how this law applies in K-12 schools.
What the Feds say is that schools should now place less emphasis on whether a student is disabled (because more students meet that definition than before) and more emphasis on how to help that child. Hallelujah. But good luck with that. For instance, the Feds say that “the school district should not need or require extensive documentation or analysis to determine that a child with diabetes, epilepsy, bipolar disorder or autism has a disability” under Section 504 and the ADA. See Question 4 of Questions and Answers doc. That means that if your child has one of those disorders and maybe others, they should get a 504 Plan (not an IEP, necessarily) almost automatically – without a lot of prodding or negotiation on your part. Well, that’s unfortunately, not what I’ve found in my legal advocacy practice in Florida. Getting a 504 Plan is as difficult as ever in these tight budgetary times because there’s no federal funding attached to 504 Plans. (unlike IEPs).
That said, if you’re a determined advocate for your disabled child who, for whatever reason, has had the IEP door slammed in your face, there’s three main situations when you can use these amendments to the ADA to your child’s benefit. First, obviously if your child is physically or medically disabled, you can use it to get accommodations to the facilities or a 1:1 aide, for instance, to ensure they have access to the school and are safe from injury. Second, if your child is Gifted or high-achieving and disabled, you can use the ADA to obtain certain accommodations, such as a testing room free of distractions for a child with ADHD.
Third, if you believe your child may need special education (an IEP) but the school is refusing to give them a comprehensive psycho-ed evaluation – maybe in the name of RtI – you can use these amendments to the ADA to bolster your argument for an evaluation. Say: “My child is considered disabled under the ADA and Section 504 and because of that disability I believe he needs special education and I am entitled to a comprehensive psycho-educational evaluation.” In other words, because the definition of “disabled” is now broader, the Feds explicitly state that you can use it to bolster your argument that your child is entitled to an IEP. See, Questions 10 and 11 of Questions and Answers doc.
Now, that really is good news. Isn’t it?