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Congress changed the concept of major life activities
Congress rejected the requirement the U.S. Supreme Court established in Sutton that courts should consider the ameliorative effects of mitigating measures
Congress directed that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active
The OCR ruled that the district violated section 504 and the ADAAA when it based its evaluation only on whether the impairment affected the child’s learning.
34 North Royalton City Sch. Dist., 52 IDELR 203, 109 LRP 32541 (2009).
Dear Dr. Zirkel:
This is in response to your letter to JoLeta Reynolds of the Office of Special Education Programs. You ask “whether, and it [sic] so to what extent, the requirements of the IDEA and Section 504 (or the ADA), respectively apply to the following three types of overseas schools:
1. Department of Defense overseas schools
2. private international schools overseas that receive limited support from the U.S. Department of State
3. other private international schools that offer the ‘American Model’ of education but without any support from the
Department of State.”
The key question in your letter is whether OCR reads into that Section 504 regulatory requirement for a free appropriate public education (FAPE) a "reasonable accommodation" standard, or other similar limitation. The clear and unequivocal answer to that is no. Section 104.33(a) guarantees all qualified individuals with disabilities FAPE, which consists of regular or special education and related aids and services that are designed to meet the individual education needs of qualified persons with disabilities as adequately as the individual education needs of other persons are met and that are designed and delivered in accordance with the Department's regulation. 34 C.F.R.§ 104.33(b)(1).
Google the Lesley University Settlement.
If we do the modifications for the student, do we have to refer the child and go through the procedural hassle of 504?
Yes. If the student qualifies for 504, doing the modifications without providing the procedural protections is a violation. That was the case where a school district provided a student who had undergone hip surgery with appropriate modifications, but failed to have procedures in place to document the deliberation of, or provision of accommodations [the regulations require no such documentation], or to inform parents of the procedure to follow should their student become disabled. Temple (TX) ISD, 25 IDELR 232 (OCR 1996). There can be few results as unpalatable as one where the district provides sufficient modifications to a qualified disabled student, but nevertheless is found in violation for not jumping through the procedural hoops.