02/01/2010

K-12 Schools Facing New Challenges: The ADAAA

By Vernon Sheeley

Important for school counselors and their team members is the Amendments Act of 2008 (Public Law 110-325, effective January 1,2009), added to the Americans With Disabilities Act of 1990 (P. L. 101-336).  School professionals have spent nearly two decades trying to implement Federal and State mandated provisions of ADA.

Brief Historical Background

Congressional legislation concerning children's disabilities dates to Section 504 of the Rehabilitation Act of 1973 (P. L. 93-112), with regulations effective in 1977.  The Education for All Handicapped Children Act (P. L. 94-142) which took effect in 1980 was changed to Individuals with Disability Education Act with ADA in 1990 and amendments in 1997.

             The legislative branch of United States government differed with interpretations of several legal terms including "disability" in three decisions by the Supreme Court in 1999 and another in 2002, which led to the passage of ADAAA.  The ADAAA greatly improves the possible interpretation of these terms because Congress' "findings and purposes" section rejected three of the four Supreme Court decisions to restore the intent and protections of ADA.

            Fortunately, schools have not been applying the narrowed Supreme Court cases to deny accommodations to school children.      

Revisions Indicated in ADAAA

In addition to undefined physical/mental impairments which substantially limited one or more major life activities in the ADA of 1990, the following new major life activities are listed in ADAAA:

• immune system            
• bowel              
• brain                            
• endocrine
• normal cell growth                   
• bladder
• respiratory                   
• reproductive
• digestive                                  
• neurological                 
• circulatory

            Consider these with the impact of the inclusion of reading, concentration, thinking, communicating being listed as major life activities under the ADAAA.  The effect of a multitude of presumed disabilities favoring broad coverage to the maximum extent permitted by the terms of ADA generally will not require extensive analysis and make disability easier to establish.  

Looking Ahead

Definitions for the terms "disability" and "individual with a disability" in ADAAA are bootstrapped and made applicable to Section 504.  Court decisions will have to determine the impact because different interpretations by parents and school  representatives of a "free and appropriate public education" and "individualized education plan" (IEP) will persist.    

            A major challenge to school counselors and other school personnel with the rededicated and restored ADA is to provide all students high quality, equitable, traditional and crisis intervention services.      

Effect of ADAAA on K-12 Schools

Questions are being raised about the future impact of newly enacted ADAAA on K-12 education.   What are possible implications of and compliance issues at these education levels in terms of students and school personnel?  Although unpredictable, future numbers of requests for accommodation among families for their children's accommodations are expected to increase considerably.    

Impact on Students (3-21 years)  (ADA, Title II)

More students will qualify for an accommodation plan under Section 504.  An IEP for all students seems to be intended.

            Challenges for collaboration are considerable for school counselors and education team members to accommodate student needs.  Cooperative activities among the team need to make  social integration among disabled and non-disabled students more likely, not left to chance.  Other formidable challenges and proactive opportunities for school counselors to consider include the following:

• Invite a series of focus groups with the idea to help form or conduct sessions for parents or caregivers of children who suffer in a significant way from behavioral or mental health problems.
• Since parents often lack support networks, are in denial that their child will suffer for a long time or have a need to counter overprotection, provide them with knowledge and skills necessary to work effectively with their children and families.

Impact on School Personnel (ADA, Title I)

With ADAAA more school personnel will be considered disabled.  Expect school officials who employ personnel to review and clearly identify job descriptions and essential functions (required) of employees as contrasted with marginal functions (extra duties).  School administrators will review evaluation procedures and forms to assess anew and reaffirm that the school district does not discriminate on the basis of disabilities.  In professional development and other employer performance enhancement programs, expect a component intended to make all employees aware of the intent of the ADAAA.

            The "interactive process" is a legal term used to determine if a person is eligible for a workplace accommodation, to identify a range of possible accommodations and to assess whether the options would create an undue hardship for the school district.  Anticipate school management to take the following actions:

• Develop procedures for handling reasonable accommodation requests from employees and distribute such procedures to appropriate staff.
• Document every step of the interactive process including information requested from the employee.
• Ask employees what they seek to do or have done that will allow them to continue to perform the essential functions of their jobs even with the claimed disability.

            For example, if school counselors and their K-12 team members are successful, to claim accommodations because they are disabled they may have unique opportunities to spend more of what are now marginal duties working with students individually or in group settings.

            Hundreds  of  thousands of pre-school through high school students who are evaluated and labeled will qualify for an accommodation plan under the newly amended American with Disabilities Act.  As a result, thousands of  K-12 school personnel will claim and be considered to have disabilities.  ADAAA no doubt presents  tremendous challenges and opportunities, especially for school counselors!

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 Vernon Lee Sheeley, known as "Dr. Historian" by some counseling professional organization leaders, is a professor in the Department of Counseling and Student Affairs at Western Kentucky University. A former school counselor for many years in the Los Angeles City School System,
he is a life member of NCDA. Among his assigned courses to teach at Western is Legal and Ethical Issues in Counseling. He can be reached at vernon.sheeley@wku.edu.