Accessibility Services
IEP and ADA Sections 504
Legislative History
Individuals with Disabilities Education Act of 2004 (IDEA)
In the K-12 setting, students with disabilities are protected under the Individuals with Disabilities Act of 2004 (IDEA). This is an educational entitlement act that provides for a free, appropriate public education, including special education and related services, via an Individualized Education Program for students who meet specified criteria in a number of distinct disability categories. Entitlement for services under IDEA ends when students exit high school by graduating or aging out.
IDEA requires that students are assessed to determine eligibility for special education and related services, and then are reevaluated at least every three years. Notably, IDEA states that schools are under no obligation to conduct testing for the purpose of establishing eligibility for services in another system, such as postsecondary education. IDEA does require schools to provide students who are exiting high school with a summary of their academic achievement and functional performance, including recommendations on how to assist students in meeting their postsecondary goals. This document is commonly referred to as a Summary of Performance (SOP) or, in Maryland, the MD Exit Document. However, schools are not required to perform cognitive, psychological or IQ testing as part of an assessment, which may be required to document cognitive and learning disabilities and determine appropriate accommodations at the postsecondary level. Hence, there exists a gap in documentation between secondary and postsecondary educational institutions, referred to as the “documentation disconnect.”
Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990
Qualified college students with disabilities may be eligible for protection under Section 504 of the Rehabilitation Act of 1973 and the American with Disabilities Act of 1990 (ADA), which prohibit discrimination and ensure equal access to educational opportunity. It is important to note that the IDEA is an educational entitlement act, while Section 504 and the ADA are civil rights laws that are designed to prohibit discrimination on the basis of disability.
The postsecondary standard for eligibility requires that the disability is current and substantially limits a major life activity. Under Section 504 and ADA laws, an individual with a disability is defined has having “a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such impairment, or being regarded as having such an impairment.” A “qualified person with a disability” is defined as one who meets the requisite and academic and technical standards required for admission or participation in the postsecondary institution’s programs and activities.
Documentation of a disability serves two primary purposes in postsecondary education. The first is to determine if the individual has a disability, and is therefore protected from discrimination. Basically, nondiscrimination is an assurance that individuals with disabilities will not be excluded or provided lesser access to programs and activities based on assumptions rooted in stereotype or perception of ability that are not based in fact. Documentation for protection from discrimination based on disability need not be extensive.
The second purpose of documentation is to determine the accommodations to which the individual may be eligible. Reasonable accommodations include modifications to policy, procedure or practice and the provision of auxiliary aids and services that are designed to provide equal access to programs and services for qualified individuals with disabilities.
Disability documentation for the purpose of providing accommodations must both establish disability and provide adequate information on the functional impact/limitation of the disability so that appropriate accommodations can be identified. In the postsecondary setting, the student’s documentation should include the information needed to provide an understanding of the disability and to anticipate how the current impact of the disability is expected to interact with the institution’s structure of courses, testing methods, program requirements, etc.
Notably, postsecondary institutions must provide accommodations to ensure that a qualified individual with a disability is not excluded from participation, denied the benefits, or subjected to discrimination in their programs and activities. However, they are not required to change essential requirements. For example, although postsecondary institutions may be required to provide extended testing time, they are not required to change the substantive content of a test. In addition, postsecondary institutions do not have to make modifications that would fundamentally alter the nature of a service, program or activity that would result in undue financial or administrative burdens. Moreover, they do not have to provide personal attendants, individually prescribed devices, readers for personal use or study, or other devices of a personal nature, such as tutoring or typing.
Americans with Disabilities Amendments Act 0f 2008 (ADAAA)
In 2008 Congress amended the ADA, stating that the question of whether an individual’s impairment is a disability under the ADA (and the Rehabilitation Act) should not demand extensive analysis. While the ADA’s definition of disability is retained, the Amendments Act specifies that the definition be interpreted broadly. Several new provisions of the Act are pertinent to postsecondary institutions.
With respect to a person with a disability having a physical or mental impairment that “substantially limits” one or more major life activities, the phrase “substantially limits” remains. However, the phrase may not be interpreted to require a severe or significant restriction of a major life activity. The list of major life activities has been expanded to include such activities as reading, concentrating, thinking and communicating. Individuals are covered who have disabilities that may be episodic or in remission. The effects of mitigating measures (e.g., medication, assistive technology, learned behavioral or adaptive neurological modifications) may not be considered in determining whether a disability qualifies under the law.
Given the recency of the ADAAA, it is difficult to know precisely how the new provisions will eventually impact documentation requirements at postsecondary institutions. The ADAAA left unchanged the obligation of students to demonstrate with appropriate and objective documentation that they are qualified students with disabilities, and the requirement to provide documentation that adequately supports each accommodation requested. However, at this time, it is appropriate for USM institutions and Maryland community colleges to ensure that documentation guidelines are consistent with the ADAAA mandate to broadly interpret the definition of disability and limit inquiries to the minimum amount of information or data necessary to make that decision.
Once it has been established that the student has a disability, the analysis should shift to whether the documentation provides sufficient information about the student’s functional limitations to identify appropriate accommodations. This requires a comprehensive, individualized assessment of the documentation submitted by the student.