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New Title II Regulations Set To Take Effect in October: How They May Impact You

On October 11, 2016, less than a week away, a final rule amending the regulations for Title II of the Americans with Disabilities Act (ADA) will take effect.  The new regulations will provide guidance to local government entities, including school districts, regarding the interpretation and application of the ADA Amendments Act of 2008 (ADAAA).  Important for educators, the regulations will help school districts determine their responsibilities to students with disabilities under Section 504 of the Rehabilitation Act of 1973 (Section 504) due to Section 504’s reliance on the ADA’s regulations.

ADA Amendments Act of 2008

In response to two major Supreme Court decisions narrowing the definition of what constituted a disability under the ADA, Congress took action and passed the ADAAA in 2008.  The ADAAA clarified Congress’ intent and interpretation of what constitutes a disability for the purposes of protection under the ADA.  Of importance for school districts nationwide, the ADA’s definitions and regulatory structure are relied upon for determining a student’s eligibility for, and the scope of, services or accommodations required under Section 504.  Though the ADAAA took effect in 2009 and educators may already be familiar with its provisions, these regulations will provide helpful guidance for school officials in both special and regular education matters.

Changes to the Title II Regulations

The main objective of the new regulations is to help clarify the purpose of the ADAAA – largely, to establish that the term “disability” is to be defined broadly.  Congress’ intent was to shift the legal focus away from battling over whether an individual has a disability, and instead focus attention on determining whether qualified entities, such as school districts, have satisfied their duty to avoid disability discrimination.  To this end some highlights of the new regulations include:

  • An expansion of the definition of “major life activities,” including the addition of “writing,” “learning,” “reading,” “concentrating,” and “thinking” as a major life activities;
  • Guidance that the term “substantially limits”  must be construed broadly and in favor of coverage under the ADA;
  • The addition of Attention-Deficit/Hyperactivity Disorder (ADHD) as an example of a physical or mental impairment;
  • A prohibition against considering the ameliorative effects of mitigating measures (i.e. hearing aids, medication, or assistive technology) other than ordinary eyeglasses or corrective lenses when determining whether an individual has a disability for purposes of the ADA;
  • Recognition that episodic impairments (i.e. occasional epileptic seizures) or impairments in remission can still be a disability under the ADA if they substantially limit a major life activity when active; and
  • Guidance that only individuals who have a disability or individuals with a record of a disability are entitled to reasonable modifications under the ADA.  Individuals who are “regarded as” having a disability, while not entitled to reasonable modifications, may not be discriminated against.

If you have any questions about the new Title II regulations, the education team at Berchem, Moses & Devlin, P.C. can help.  For inquiries regarding the ADA, Section 504 compliance and more, visit, or email us at