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U.S. Department of Education Issues Revised FAQ on Section 504

On March 27, 2009, the United States Department of Education issued a revised version of its document entitled Frequently Asked Questions About Section 504 and the Education of Children with Disabilities, updating it to include new information about the implications of the Americans with Disabilities Act Amendments (ADAA) effective January 1, 2009.  In addition to the commentary included in the FAQ document, the Office for Civil Rights (OCR) states that it is currently evaluating the impact of the ADAA on its enforcement responsibilities, including whether any changes to regulations are appropriate.

Changes to the FAQ document include Question 21, regarding whether districts may consider mitigating measures in determining whether the student has a disability under Section 504.  Consistent with the ADAA, the answer now states that school districts are not permitted to consider mitigating measures that the student is using in determining whether the student has a disability, except for ordinary eyeglasses or contact lenses.

The FAQ document continues to endorse the position that there is no impairment that confers automatic eligibility under Section 504, and that a medical diagnosis is one source of information to be considered among others in determining the student’s eligibility.

Question 12 concerning the major life activities that may be impacted by a physical or mental impairment has, consistent with the ADAA, been amended to include reference to the new major life activities mentioned in the ADAA such as standing, lifting, bending, reading, concentrating, thinking, and communicating.  It also mentions those major bodily functions that have been conferred “major life activity” status such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.  The FAQ mentions that the ED believes that its current regulations are consistent with these amendments since they indicate that the list of major life activities in the regulations is not exhaustive, and an activity or function not listed in the regulations can nonetheless be considered a major life activity.

Question 34 concerning temporary impairments has been amended to indicate that an individual should not be “regarded as” an individual with a disability if the impairment is transitory and minor, defined as an impairment with an actual or expected duration of 6 months or less.  Also, Question 35 has been revised to indicate that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

We are looking forward to receiving additional guidance from OCR concerning issues such as how to handle children with impairments that now appear to qualify as disabilities under Section 504 but for whom no accommodations in the school environment are currently needed, which is not addressed directly in the FAQ document.