1. ADA Amendments Act of 2008: An Overview The Americans with Disabilities Act Amendments Act of 2008: An Overview Oregon Fall Special Education Conference 1

2. ADA Amendments Act of 2008: An Overview Office for Civil Rights U.S. Department of Education This presentation provides general information and does not represent a complete recitation of the applicable law and OCR policy in this area. It does not address specific issues of compliance because determinations of compliance depend on specific facts on a case-by-case basis. The language used in these slides is approved for the purposes of this presentation only and should not be used for other purposes. NOTE: This presentation is for internal OCR use only and should not be distributed outside of the Department. 2

3. ADA Amendments Act of 2008: An Overview Introduction The “Americans with Disabilities Act Amendments Act of 2008” (“Amendments Act”) P.L. 110-325 became effective on January 1, 2009. The Amendments Act amended the Americans with Disabilities Act and Section 7 of the Rehabilitation Act of 1973 (29 U.S.C. §705), which contains the disability definition for Section 504. 3

4. Introduction (cont.) The Amendments Act is codified in several sections of the U.S. Code, at: 42 U.S.C. § 12101, 12102, 12103, 12111, 12112, 12113, 12114, 12201 and 12205a, and at 29 U.S.C. § 705. ADA Amendments Act of 2008: An Overview 4

5. Introduction (cont.) The Amendments Act is separate and distinct from the draft ADA regulations released by the Department of Justice (DOJ) on June 17, 2008 and the Individuals with Disabilities Education Act Supplemental Regulations issued by the Department on December 1, 2008. The DOJ published Final Regulations, revising the current regulations, to Titles II and III of the ADA in the Federal Register (http://www.gpoaccess.gov/fr/) on September 15, 2010. The DOJ also intends to issue a Notice of Proposed Rulemaking (NPRM) regarding the Amendments Act. 5

6. ADA Amendments Act of 2008: An Overview Introduction (cont.) The most significant change made by the Amendments Act is how “disability” is interpreted. 6

7. ADA Amendments Act of 2008: An Overview Introduction (cont.) The Amendments Act requires “disability” to be construed broadly. “[I]t is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” See 42 U.S.C. § 12101 note 7

8. ADA Amendments Act of 2008: An Overview Introduction (cont.) This presentation will: Provide background on the new law. Discuss changes to “substantially limits” and mitigating measures Discuss major life activities and “regarded as” prong of the definition of disability. Address the effect on Section 504. 8

9. ADA Amendments Act of 2008: An Overview A Brief Refresher on the ADA Three of the five titles of the ADA:  Title I: Employment  Title II: Public Entities  Title III: Private Entities 9

10. ADA Amendments Act of 2008: An Overview A Brief Refresher on the ADA (cont.) Title II: Public Entities– all programs, activities, and services of public entities; OCR’s jurisdiction includes public elementary and secondary education systems and institutions, institutions of higher education and vocational education (other than schools of medicine, dentistry, nursing, and other health-related schools) and public libraries. DOJ and the U.S. Department of Transportation (DOT) have authority to issue Title II regulations. 10

11. ADA Amendments Act of 2008: An Overview Impetus for the Amendments Act Since the enactment of the ADA (in 1990), decisions of the U.S. Supreme Court in 4 cases have had a major impact on ADA enforcement. These cases are known as “the Sutton trilogy” and Toyota. Citations: Sutton v. United Air Lines, Inc., 527 U.S. 471(1999), Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999), and Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999); Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002) 11

12. ADA Amendments Act of 2008: An Overview Impetus for Amendments Act (cont.) Sutton trilogy dealt with how to determine if a person was “substantially limited in a major life activity.” Toyota case addressed what constitutes “substantially limits” and “major life activity.” Sutton trilogy and Toyota established a “demanding” standard for definition of disability The Amendments Act overturned Sutton trilogy and Toyota, and instituted a much broader interpretation of disability. 12

13. ADA Amendments Act of 2008: An Overview Changes Made by the Amendments Act The Amendments Act maintains the same three elements for the term disability (physical or mental impairment that substantially limits a major life activity, record of such an impairment, or being regarded as having an impairment). However, the meaning of “disability” changed. 13

14. ADA Amendments Act of 2008: An Overview Changes Made by the Amendments Act (cont.) The Amendments Act changed what it means to have a physical or mental impairment that “substantially limits a major life activity” and what it means to be “regarded as” having an impairment. 14

15. ADA Amendments Act of 2008: An Overview Substantially Limits Prior to the final Act, Congress considered defining “substantially limits” by a new term (“materially restricts”), but declined to do. Senate Managers’ Statement (part of the Act’s legislative history) suggests that the substantially limits analysis should consider “whether a person’s activities are limited in condition, duration and manner.” 15

16. ADA Amendments Act of 2008: An Overview Substantially Limits and Mitigating Measures The Sutton trilogy required the effects of “mitigating measures” to be considered when determining whether an individual is “substantially limited in a major life activity.” Examples of mitigating measures from the Sutton trilogy: corrective eyeglasses and contact lenses, medication for high blood pressure, subconscious adjustments to cope with a visual impairment. 16

17. ADA Amendments Act of 2008: An Overview Substantially Limits and Mitigating Measures (cont.) Under the Amendments Act the “ameliorative effects of mitigating measures” must not be considered when determining if an individual is a person with a disability. 42 U.S.C. § 12102(4)(E) 17

18. ADA Amendments Act of 2008: An Overview Mitigating Measures and the Amendments Act No Definition – Non-exhaustive List: Assistive Technology Reasonable accommodations or auxiliary aids or services Learned behavioral or adaptive neurological modifications Medication, prosthetics, hearing aids 42 U.S.C. § 12102(4)(E)(i) 18

19. ADA Amendments Act of 2008: An Overview Exception to Mitigating Measure The ameliorative effects of ordinary eyeglasses/contact lenses shall be considered in determining if an impairment substantially limits a major life activity. 42 U.S.C. § 12102(4)(E)(ii),(iii). According to the Senate Managers Statement, without more, the use of ordinary glasses/contacts is not significant enough to warrant protection under the ADA. 19

20. ADA Amendments Act of 2008: An Overview Episodic Impairments An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 42 U.S.C. § 12102(4)(D). 20

21. ADA Amendments Act of 2008: An Overview Application to Cases As of January 1, 2009, in determining whether an individual is a person with a disability, OCR no longer takes into account the ameliorating effects of any mitigating measures (except for ordinary eyeglasses or contact lenses) that an individual used at the time of the alleged discrimination. 21

22. ADA Amendments Act of 2008: An Overview Application to Cases (cont.) A school should make the determination of whether a student with a mental illness is an individual with a disability without considering any medication used to manage the impairment. For a student with a respiratory impairment, the determination should be made without regard to the use of oxygen therapy. 22

23. ADA Amendments Act of 2008: An Overview Application to Cases (cont.) For a student with a physical impairment, the determination should be made without regard to the use of a prosthetic device. For a student with a traumatic brain injury, the determination should be made without regard to the use of assistive technology such as an augmentative communication device or a computer adapted for the student’s physical needs. 23

24. ADA Amendments Act of 2008: An Overview Major Life Activities The Amendments Act contains a non- exhaustive list of major life activities divided into two categories – “general” and “major bodily functions.” 42 U.S.C. § 12102(2). The general category includes all the activities currently found in the Title II regulations and the Department’s Section 504 regulations as well as additional activities. 24

25. ADA Amendments Act of 2008: An Overview Major Life Activities (cont.) Caring for oneself Performing manual tasks Walking Seeing Hearing 25 The Department’s Section 504 regulations’ list of non-exhaustive major life activities is: Speaking Breathing Learning and Working

26. ADA Amendments Act of 2008: An Overview Major Life Activities (cont.) Eating Sleeping Standing Lifting Bending 42 U.S.C. § 12102(2)(A) 26 The Amendments Act non-exhaustive list of “general” major life activities includes all of aforementioned activities plus the following: Reading Concentrating Thinking Communicating 26

27. ADA Amendments Act of 2008: An Overview Major Life Activities (cont.) Functions of the immune system Normal cell growth Digestive Bowel Bladder 42 U.S.C. § 12102(2)(B) 27 The non-exhaustive list of “major bodily functions” is as follows: Brain Circulatory Endocrine Reproductive Neurological Respiratory 27

28. ADA Amendments Act of 2008: An Overview Major Life Activities (cont.) The Amendments Act makes clear that “major life activities” are not limited to those listed in the statute. 42 U.S.C. § 12102(2) 28

29. ADA Amendments Act of 2008: An Overview Major Life Activities (cont.) Likewise, the Department’s current Section 504 regulations’ list of major life activities is non-exhaustive. 29

30. ADA Amendments Act of 2008: An Overview Major Life Activities (cont.) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability. 42 U.S.C. § 12102(4)(C) 30

31. ADA Amendments Act of 2008: An Overview Major Life Activity and Learning Disabilities The Amendments Act itself does not specifically address learning disabilities. However the Senate Managers’ Statement states that even if an individual with a specific learning disability performed well academically in the past, he or she may still be substantially limited in learning, reading, writing, thinking or speaking. 31

32. ADA Amendments Act of 2008: An Overview Regarded As Requirements under Sutton: Covered entity mistakenly believed that the individual had an impairment that substantially limited a major life activity; or Covered entity mistakenly believed that an actual, non-limiting impairment was substantially limiting. 32

33. ADA Amendments Act of 2008: An Overview Regarded As (cont.) Under the Amendments Act an individual is regarded as an individual with a disability if: The individual “has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). 33

34. ADA Amendments Act of 2008: An Overview Regarded As (cont.) An individual covered solely by the “regarded as” element is not entitled to reasonable accommodations or the reasonable modification of policies, practices or procedures. 42 U.S.C. § 12201(h) A person is not “regarded as” a person with a disability if the impairment is transitory and minor. 42 U.S.C. § 12102(3)(B) 34

35. ADA Amendments Act of 2008: An Overview Title III: Fundamental Alteration An Amendments Act provision states that the Amendments Act does not change a Title III entity’s obligation to make reasonable modifications in policies, practices or procedures (including academic requirements in the postsecondary environment) unless the modification would fundamentally alter the nature of the goods, services, facilities, privileges, advantages or accommodations involved. 42 U.S.C. § 12201(f) 35

36. ADA Amendments Act of 2008: An Overview Section 504 Conforming Amendment The Amendments Act includes a provision that conforms the definition of disability under Section 504 with the Amendments Act. See 29 U.S.C. § 705 The purpose of this provision, according to the Senate’s Managers’ Statement, is to ensure that the two provisions “generally operate under one consistent standard, and the civil rights of individuals with disabilities will be protected in all settings.” 36

37. OCR Resources About the Amendments Act Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (updated March 2009 to address the Amendments Act) http://www2.ed.gov/about/offices/list/ocr/504faq.html Notice and text of the Amendments Act, available at http://www2.ed.gov/policy/rights/guid/ocr/disability.html ADA Amendments Act of 2008: An Overview 37

38. Questions? Contact Beth Caldwell at the OCR Seattle Office at (206) 607-1600 ADA Amendments Act of 2008: An Overview 38