Federal Disability Law in a Nutshell
Author:
Colker, Ruth
Edition:
6th
Copyright Date:
2019
24 chapters
have results for disability
Chapter 11 ADA: Miscellaneous 355 40 results (showing 5 best matches)
- Excludes employees from participation in a service retirement or disability retirement plan because of their disabilities. For example, an employer violates the ADA if it requires employees covered by the ADA who qualify for both service and disability retirement plans to take the disability retirement benefit.
- Requires different lengths of employment for participation by individuals with disabilities and individuals without disabilities in the employer’s service retirement or disability retirement plans. For example, it is discriminatory if an employer requires employees with disabilities to complete 12 years of service before being allowed to enroll in its service retirement plan but only requires other employees to complete 10 years of service.
- The first issue that must be determined when deciding whether a disability-based distinction is being made is whether a distinction singles out a covered disability under the ADA. This requires a determination of whether a physical or mental condition is recognized as a covered disability under the ADA. A discussion of this issue is found in Chapter 3 of this
- Sets different levels or types of coverage for individuals with and without disabilities in a service retirement plan. For example, an employer violates the ADA if it gives cost-of-living increases every three years to employees without disabilities but only gives such increases to employees with disabilities every five years.
- constitute a disability-based distinction in a health insurance plan that may be found to violate the ADA. A term or provision is “disability based” if it singles out:
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Chapter 4 The Rehabilitation Act of 1973 43 38 results (showing 5 best matches)
- the recipient must know of the plaintiff’s disability or be aware of facts sufficient to put the recipient on notice of the plaintiff’s disability. Absent such knowledge or awareness, a recipient cannot have discriminated against a person solely on the basis of his or her disability. Knowledge of an obvious disability (such as the fact an individual uses a wheelchair) will be imputed to the recipient.
- Subsection (b) of Section 501 requires federal agencies to establish affirmative action plans for the hiring, placement and advancement of individuals with disabilities; subsection (c) requires the EEOC to develop policies and procedures for state agencies to follow to facilitate the hiring, placement and employment of individuals with disabilities; subsection (d) requires the Commission to submit yearly reports to Congress with respect to the practices of and achievements of the hiring, placement and employment of persons with disabilities in all federal agencies.
- A difficult interpretive problem arises when an individual with a disability is denied employment, advancement in employment, or admission to programs or services based on two factors: one related to the disability and one not. For example, an individual who is blind may be denied admission to college because the admissions committee erroneously believed that people who are blind are incapable of performing well in college, Section 504 “solely” on the basis of disability requirement would lead to the conclusion that the individual who is blind had not been impermissibly discriminated against within the meaning of an individual’s disability the entity would have acted differently.
- Section 504’s mandate against discrimination on the basis of disability by simply claiming that there is a rational basis for the rejection of an applicant with a disability or for a rule that discriminates against persons with disabilities. As the Tenth Circuit noted in
- Although Section 503 requires contractors having government contracts of $10,000 or more to undertake “affirmative action” to employ and advance in employment people with disabilities, the OFCCP notes that non-discrimination and affirmative action are different concepts and that the term “affirmative action” as used in Section 503 does not require federal contractors to grant in the hiring process to people with disabilities. (discussion of Subpart C of the OFCCP’s regulations). The OFCCP views the “affirmative action” language in Section 503 as being analogous to the “equal opportunity” concept underlying the Americans with Disabilities Act, which requires the provision of reasonable accommodations to persons with disabilities.
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Chapter 10 Transportation 303 70 results (showing 5 best matches)
- In providing paratransit services, public entities must only respond to the request of persons with disabilities “ ” to meet the comparable level of services provided to individuals without disabilities. . Further, public entities are required to provide paratransit services for persons with disabilities only in three circumstances: (1) when an individual’s disability precludes him or her from boarding, riding, or disembarking on or from accessible transportation vehicles without the assistance of another person; (2) when an individual with a disability requires an accessible transportation vehicle during the hours of operation of the fixed-route service but an accessible vehicle is not being provided during the time that the individual requires transportation services; or (3) when an individual’s disability prevents him or her from traveling to a boarding or disembarking
- An entity may not refuse to serve an individual with a disability or require anything contrary to the ADA “because its insurance company conditions coverage or rates on the absence of individuals with disabilities or requirements contrary to [the Act].” . § 37.5(g). Further, while an entity may refuse service to an individual with a disability who engages in “violent, seriously disruptive or illegal conduct,” an entity may not refuse to provide service to such individual “solely because the individual’s disability results in appearance or involuntary behavior that may offend, annoy or inconvenience employees of the entity or other persons.”
- In general, air carriers are prohibited from: (1) discriminating against an otherwise qualified individual with a disability, by reason of such disability, in the provision of air transportation; (2) requiring an individual with a disability “to accept special services (including, but not limited to, preboarding) not requested by the passenger”; (3) excluding a qualified person with a disability from, or denying such person the benefit of, air transportation or related services that are available to non-disabled persons “even if there are separate or different services available” persons with disabilities except when specifically permitted by the regulations; and (4) taking adverse action against an individual because of the individual’s assertion of rights protected by the ACAA.
- Finally, the requirement that paratransit services be provided to people with disabilities and their companions is limited to companion of the individual; other companions will be permitted to ride with the person with a disability to the extent that space is available. § 12143(c)(1)(C). The intent is to allow persons with disabilities to attend functions with non-disabled family members and friends but at the same time refrain from overburdening the paratransit system.
- Section 37.167 includes several specific service requirements. On fixed route systems, stops must be announced “at least at transfer points with other fixed routes, other major intersections and destination points, and intervals along a route sufficient to permit individuals with visual impairments or other disabilities to be oriented to their location.” Where vehicles for more than one route serve the same stop, “the entity shall provide a means by which an individual with a visual impairment or other disability can identify the proper vehicle to enter or be identified to the vehicle operator as a person seeking a ride on a particular route.” Service animals may accompany individuals with disabilities in vehicles and facilities, and the entity must allow a person with a disability to travel with a respirator or portable oxygen supply if it is consistent with applicable DOT rules on the transportation of hazardous materials. The entity must make adequate information concerning...
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Chapter 12 The Individuals with Diasabilities Education Act (IDEA): Introduction and Overview 387 53 results (showing 5 best matches)
- Although not specially mentioned in the definition of “child with a disability,” many states have utilized the term “multiply handicapped” (or a derivative thereof) to describe children with two or more recognizable disabilities. The DOE’s regulations define “multiple disabilities” as:
- The Individuals with Disabilities Education Act (IDEA), , formerly called the Education of the Handicapped Act and the Education for All Handicapped Children Act, was enacted in 1975 to address the failure of state education systems to meet the educational needs of children with disabilities. Congress’s enactment of the IDEA was in part a response to two well-publicized court cases, , and the persistent efforts of persons with disabilities and organizations interested in the rights of persons with disabilities. In its findings, Congress noted that in the mid-1970s more than half of the approximately 8 million American children with disabilities were not receiving appropriate educational services, one million were excluded entirely from public school educations, and many in regular school programs were educationally unsuccessful because their disabilities were undetected.
- Part B also contains the “heart” of the IDEA—a set of procedural safeguards intended to protect the interests of children with disabilities from 3 to 21 years of age. Among the most significant of those procedural protections is the requirement that school districts, with the assistance of parents, prepare an Individualized Education Plan (IEP) for each student with a disability. Two crucial components of the IDEA are: (a) the requirement of parental involvement in planning an appropriate educational program for their child with a disability and (b) the intent that a child with a disability is to be removed from the regular educational environment only when:
- Part C of the IDEA authorizes states to receive grants from the federal government to develop and implement statewide systems to provide early intervention services for infants and toddlers (ages 0–3) with disabilities. And Part D provides for state program improvement grants for children with disabilities.
- Not all children with disabilities are covered by the IDEA; rather, only those children who are disabled fall within the scope of the Act. The term “child with a disability” means a child:
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Chapter 18 Disciplining Students with Disabilities 549 21 results (showing 5 best matches)
- If it is determined that the child’s behavior was not a manifestation of the child’s disability, the relevant disciplinary procedure applicable to children without disabilities may be applied to the child in the same manner in which they would be applied to children without disabilities. § 1415(k)(1)(C). During this disciplinary period, however, the child with a disability
- School personnel under this subsection may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities).
- authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school.” (Emphasis in original). Thus, the Supreme Court held that unilateral expulsion of children with disabilities is no longer permitted because it constitutes a change in placement that cannot be instituted without compliance with the IDEA procedural requirements. Further, the Court held that a suspension in excess of ten days constitutes a change in placement, thus triggering the stay-put provision. In sum, therefore, under the Court’s ruling a LEA may temporarily suspend a student with a disability for no more than ten school days without such a temporary suspension being considered a change in placement.
- decision. If a dangerousness exception had been read into the statute (requiring a hearing officer to make a determination of whether the child was in fact dangerous), parents of the child with a disability would probably have had to petition for such a hearing. In that event, the parents, as petitioners, would presumably have had the burden of proving that the child is , however, the school district will bear the burden of proving that the child is dangerous when it seeks relief from the court because a child with a disability is believed to pose a danger to himself and/or others.
- The 1997 and 2004 Amendments to the IDEA address and clarify many issues relating to the discipline of children with disabilities.
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Chapter 1 Introduction and Overview 1 13 results (showing 5 best matches)
- When Congress passed the Americans with Disabilities Act (ADA) in 1990, it estimated there were 43 million Americans with physical or mental disabilities and noted that this number is increasing as the population grows older. When Congress amended the ADA in 2008, it abandoned trying to estimate the number of individuals with disabilities. Instead, it stated that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” In 1990, and again in 2008, Congress observed that discrimination persisted in critical areas such as employment, housing, public accommodations, transportation, communication, education, recreation, institutionalization, health services, voting, and access to public services. This discrimination occurs in various forms including
- First, “able-bodied” members of our society often feel discomfort and embarrassment around people with disabilities and do not know how to react toward them. Some able-bodied people may even feel actual aversion to some people with disabilities. These feelings may cause nondisabled people to treat people with disabilities differently.
- Despite these laws, as of early 1990 no federal statute prohibited the majority of employers, program administrators, owners and managers of places of public accommodation and others from discriminating against people with disabilities. In the late 1980s, studies showed that only two-thirds of working age Americans with disabilities who were able to be employed had jobs, and many of those who did have jobs were working in positions below their capabilities. This was so because many employers refused to hire people with disabilities, and because those people with disabilities who were employed were often left in entry-level positions and not promoted in accord with their abilities. In 1990, over eight million Americans with disabilities who wanted to work were denied jobs and thus were forced to depend on government subsidies—to the disadvantage of
- Americans with disabilities also face discrimination in transportation. Generally, public bus and train transportation is the only mode of travel available to poor or rural Americans, and Americans with disabilities are more likely than nondisabled persons to live in poverty and in rural areas. Moreover, people with disabilities often rely heavily upon public transportation to conduct their daily lives because they have low incomes and are unable to afford the cost of private cars (much less the cost of specially equipped private cars for some mobility-impaired persons) and because some disabilities (blindness, for example) preclude driving. As of early 1990, however, very few rail cars and only approximately one-third of the public buses in this country were accessible to riders with disabilities.
- Discrimination based on disability differs in some respects from discrimination based on other factors such as race or sex. Factors like race, and in most cases sex, generally do not create any rational differences between individuals regarding the ability to do a job or qualification to perform in a program. Thus, there is rarely, if ever, a reason to treat persons of different races or sexes differently. Conversely, an individual’s disability disparate treatment of persons with disabilities is discriminatory. Moreover, because of the differences between disabled and nondisabled individuals, the underlying premise of discrimination based on disability differs in some respects from that based on other factors such as race. Racial discrimination is often premised on an irrational and hostile animus. Disability discrimination is also sometimes based on animus, but it is frequently premised on other factors:
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Chapter 5 Employment Discrimination 89 65 results (showing 5 best matches)
- Only a “qualified individual with a disability” is protected from discrimination under the federal laws. A “qualified individual with a disability” is generally defined as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the position. The EEOC’s ADA Title I regulations divide this inquiry into two parts:
- Employers are only required to accommodate individuals who make their disabilities to their employers and let their employers know that some accommodation is required. Moreover, if an employee requests an accommodation, the employer may request documentation of the employee’s disability if the disability is not obvious.
- When a qualified individual with a disability asks for a reasonable accommodation, the employer should initiate an informal, interactive process with the individual. . In this interactive process, the employer should use a problem-solving approach to analyze the job, determine its essential functions, consult with the person with a disability regarding the limitations imposed by the disability and possible accommodations to overcome those limitations, consider the preferences of the individual with the disability, and select and implement the most appropriate accommodation. If consultation with the individual with a disability does not uncover potential appropriate accommodations, the employer should seek technical assistance from the EEOC, from state or local rehabilitation agencies, or from disability constituent organizations. Failure to obtain technical assistance, however, will not relieve the employer from the obligation to provide reasonable accommodations.
- Four major federal laws prohibit employment discrimination against persons with disabilities: Sections 501, 503 and 504 of the Rehabilitation Act ( , 793 and 794), and Title I of the Americans with Disabilities Act ( § 504) from discriminating on the basis of disability in any aspect of the employment setting. The Americans with Disabilities Act (ADA) prohibits private employers having 15 or more employees, and state and local government entities (regardless of the number of employees), from discriminating on the basis of disability in any aspect of the employment setting.
- While employers governed by Sections 503–504 and the ADA may not refuse to hire or promote an individual because of that individual’s disability, such employers are seek to hire (and promote where appropriate) people with disabilities; under this section, preference toward people with disabilities
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Chapter 7 Access to Programs and Services 165 79 results (showing 5 best matches)
- For example, a public accommodation may not require that an individual with a disability be accompanied by an attendant, require an individual to unnecessarily identify a disability, or require presentation of a driver’s license as the sole means of identification before being permitted to pay by check (since such a policy would discriminate against individuals with disabilities who were unable to obtain drivers’ licenses). Moreover, a surcharge may not be assessed to an individual with a disability to cover the cost of making a facility accessible.
- In lieu of a valid, State-issued disability parking placard or card, or State-issued proof of disability, a public accommodation shall accept as a credible assurance a verbal representation, not contradicted by observable fact, that the other power-driven mobility device is being used for a mobility disability.
- can be used to argue that the ADA is not limited to claims of discrimination involving the preferential treatment of individuals without disabilities in comparison to individuals with disabilities. In that case, the Court held that the ADA can be violated when the state fails to offer community-based treatment for persons with mental disabilities and thereby fails to follow the Title II regulation which requires that individuals with disabilities be placed “in the most integrated setting appropriate to [their] needs.” disabilities who the state placed in community-based programs rather than institutional settings. Thus, the Court implicitly recognized that the ADA can be used to argue that disability-based discrimination has occurred even if individuals without disabilities are not being treated preferentially.
- to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations,
- any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.
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Chapter 9 Postsecondary Education 265 58 results (showing 5 best matches)
- An applicant to a postsecondary educational institution may always voluntarily disclose a disability and ask that it be considered in the admissions determination. Further, once accepted, a student who wishes to receive accommodations or adjustments for his or her disability will have to identify the disability. In either situation the educational institution may require documentation of the disability. The applicant is responsible for providing such documentation at his or her own expense. Moreover, the documentation must be fairly recent, come from an appropriate expert, and be sufficiently comprehensive.
- served as an expanded type of accommodation to assist students with learning disabilities who were not already succeeding independently in academic settings. Charging a fee for the program was permissible since, although a university may not charge a student with disabilities for the cost of reasonable accommodations, this program went beyond the reasonable accommodation obligation. So long as the university provided requisite reasonable accommodations for a student with disabilities at no cost, the court indicated—without really deciding—that a fee may be charged for additional services which are beyond the university’s obligation. Moreover, the court held that the university could permissibly limit the number of students who would be admitted to the special learning disabilities program as long as: (1) it did not limit the number of students with learning disabilities admitted to the school, and (2) it provided reasonable accommodations (at no charge) to all admitted students...
- Section 504 or ADA Titles II or III must ensure that students with disabilities are informed about how to access appropriate services. Neither policies and procedures describing how they will provide services for students with disabilities, however, such a practice is recommended.
- Schools which provide financial assistance are barred from dispensing less assistance to students with disabilities than to non-disabled students, limiting the eligibility of non-disabled students to such assistance, or otherwise discriminating on the basis of disability. . Similarly, a college or university that “assists any agency, organization, or person in providing employment opportunities to any of its students shall assure itself that such employment opportunities, as a whole, are made available in a manner [that does not discriminate against students with disabilities].” students may not do so in a manner that discriminates against students with disabilities.
- Increasingly, postsecondary educational institutions are confronted with issues pertaining to applicants or students with learning disabilities. More children are being diagnosed as learning disabled and provided with special education services because of the implementation and enforcement of the Individuals with Disabilities Education Act (IDEA), –1485, which requires elementary and secondary school districts to provide children with educational disabilities with a free appropriate education. In addition, testing and identification procedures have become more sophisticated, allowing experts to more readily identify learning disabilities.
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Chapter 13 IDEA: Appropriateness/Least Restrictive Environment; Continuum of Educational Options; Related Services 437 47 results (showing 5 best matches)
- In addition to a student’s progress, another issue that frequently must be considered when assessing whether a child with a disability is receiving an appropriate education is the meaning of the term children who are educationally disabled, many different disabilities and different degrees of severity of disability must be addressed. The required starting point for determining what “education” means for a particular child will vary based upon the child’s disability and its severity and the individual characteristics of the child. Accordingly, the educational needs of a child with a disability frequently include non-academic as well as academic areas.
- test requires a child’s IEP to be reasonably calculated to provide educational benefits. The Supreme Court held that a child with a disability is not entitled to an IEP designed to permit him or her to reach his or her ultimate or optimum potential. Stated another way, the Act does not require a child with a disability to be provided with the best education. The IDEA only entitles a child with a disability to an “appropriate” education.
- Moreover, the concept of placing a child with a disability as close to home as possible does not override the exercise of proper administrative discretion by school districts in utilizing resources in an efficient manner. School districts may permissibly concentrate resources at particular schools for particular needs and disabilities.
- Success in special school and special classes is unlikely to lead to [this child] functioning successfully either in integrated education settings or in the community. . . . Inclusive public education for children with disabilities offers substantial benefits for children with disabilities, for their non-disabled peers, as well as for the community at large. This type of education increases the opportunities for individuals with disabilities to become fully-functioning, co-equal members of society.
- When a non-related medical service such as private-duty nursing is necessary to enable a child with a disability to attend school, other sources of funding may be available. For example, a child with a disability receiving nursing services under Medicaid can require such nursing services to be provided outside of the home for normal life activities such as attending school.
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Chapter 2 Constitutional Rights 9 12 results (showing 5 best matches)
- , children with intellectual disabilities (then called “mental retardation”) sued the state, claiming that they were denied the right to a public education. The suit was based upon three claims: (1) a violation of due process because there was no notice or hearing provided before children with intellectual disabilities were excluded from public education or their educational assignments were changed; (2) a violation of equal protection due to the lack of a rational basis for assuming that children with intellectual disabilities were uneducable and untrainable; and (3) a violation of due process because it was arbitrary and capricious to deny children with intellectual disabilities a right to the education guaranteed by state law. The parties in
- As these cases illustrate, the constitutional rights and protections extended to children with disabilities by the Equal Protection and Due Process Clauses of the Fourteenth Amendment are considerably greater in the area of education than in many other areas of human activity. Moreover, the limited case law on point reflects strong protections for students with disabilities.
- In most cases, with the exception of the educational arena, people with disabilities seeking to utilize constitutional means to redress discriminatory conduct have obtained little relief—in both employment and non-employment contexts. Constitutional claims based on equal protection and due process theories will only rarely provide relief for persons with disabilities because of the lack of suspect class status or of a fundamental right. Accordingly, the federal laws enacted specifically to assist people with disabilities in avoiding discrimination and entering the mainstream of society are of crucial importance.
- , the Supreme Court concluded that persons with intellectual disabilities (then called “mental retardation”) do not constitute a “suspect class” that has historically suffered unequal treatment (like racial minorities) or a “quasi-suspect class” (like women). The Court thus held that the judicial review of state legislation or state action impacting persons with intellectual disabilities would be reviewed under a “rational basis” standard and not the “strict scrutiny” standard used for issues impacting race or national origin or the “heightened scrutiny” standard used for gender questions. The Court’s opinion was premised primarily on the fact that people who are intellectually disabled, unlike people of different races or sex, have a reduced ability to cope with and function in the everyday world. Thus, people with intellectual disabilities are immutably different from others, and states have a legitimate interest in promulgating statutes and regulations dealing with the treatment...
- , a job applicant or employee with a disability will not succeed on a claim that, based on his or her disability, he or she is a member of a constitutionally protected class. Moreover, under the prevailing view, courts do not consider employment to be a fundamental right. . Thus, equal protection claims of persons with disabilities relating to employment will be analyzed under the rational basis test.
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Chapter 8 Housing 241 22 results (showing 5 best matches)
- The FHAA also bars discrimination with respect to the “terms, conditions, or privileges of sale or rental of a dwelling,” or with respect to “the provision of services or facilities in connection with such dwelling,” due to the disability of any of the above-named persons. disability to make reasonable modifications of existing premises at his or her own expense; (b) the refusal to make reasonable accommodations in rules, practices or services when necessary to allow a person with a disability equal use and enjoyment of the premises; and (c) the failure to design and construct multi-family dwellings so that such dwellings are accessible to people with disabilities. illegal, however, to refuse to rent or sell housing to an individual, with or without a disability, “whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.”
- Specifically, the legislative history provides that the FHAA “is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community.” H.R. Rep. No. 711, 100th Cong., 2d Sess. 24 (June 17, 1988). Thus, a vast number of courts have granted preliminary or permanent injunctive relief to plaintiffs with disabilities who sought: (1) special exemptions under applicable zoning regulations; or (2) to have zoning regulations interpreted in a manner that would provide persons with disabilities equal access to housing. Numerous courts have recognized that if persons with disabilities are to have equal access to housing in residential areas, for example, zoning regulations regarding single family residences must be modified to allow small groups of persons with disabilities to live together...
- As noted above, Congress based the FHAA’s anti-discrimination provisions on regulations and caselaw under the Rehabilitation Act. Plaintiffs with disabilities often bring claims based on discriminatory housing practices under Section 504 precludes a recipient of federal financial assistance from discriminating against individuals with disabilities with respect to the provision of housing. A plaintiff with a disability may not, however, utilize Section 504 does not eliminate the requirement that individuals with disabilities must fall within the class of individuals eligible to participate in federally funded housing programs pursuant to laws such as Section 202 of the Housing Act of 1959,
- refers to the FHAA (in contrast to the FHA) when it is referring to specific provisions added in 1988 when the FHA was amended to prohibit disability discrimination.
- It is illegal under the FHA to: (1) represent to any person in a statutorily protected class, including people with disabilities, that “any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available;” or (2) “[f]or profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood . . . ” of persons in any of the statutorily protected classes, including persons with disabilities.
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Chapter 14 IDEA: Private Schooling; Persons in a Parental Role; Testing and Evaluation; Third-Party Payments 475 27 results (showing 5 best matches)
- An LEA must be prepared to provide a FAPE to any child with a disability residing within its jurisdiction. Parents of children with disabilities, however, are not required to avail themselves of a proffered placement. They may instead choose to place their children in private schools, even schools that do not adhere to state standards for the education of disabled children. Children with disabilities in such placements are identified as “private school children with disabilities,” and those placements are deemed voluntary. . The 1997 Amendments to the IDEA, as well as the DOE’s IDEA regulations, provide that the local school district is not required to pay for the education of a child with a disability at a private school when the school district offers an appropriate placement.
- shall be construed as prohibiting or restricting, or authorizing the Secretary to prohibit or restrict, payment . . . for medical assistance for covered services furnished to a child with a disability because such services are included in the child’s individualized education program established pursuant to . . . [the IDEA] or furnished to an infant or toddler with a disability because such services are included in the child’s individualized family service plan.
- Under the IDEA, parents and guardians of children with disabilities play a central role. First, an LEA must encourage the participation of a child’s parents or guardian when developing an IEP for a child with a disability. Further, extensive requirements are set forth in the Act to assure that children with disabilities and their parents or guardians are guaranteed procedural safeguards with respect to the provision of free appropriate public education.
- The DOE has interpreted this provision narrowly. The DOE contends that children with disabilities who are voluntarily enrolled in private school do not have a right to a FAPE. The DOE has stated that the IDEA does not provide children enrolled by their parents in private schools with an individual entitlement to receive special education and related services. Rather, an LEA must follow a process of consultation with representatives of the private school students to determine, among other things, which children with disabilities enrolled in private school should be served.
- Children with Disabilities
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Preface iii 2 results
- The objective of this book is to help law students, lawyers and others recognize and understand the federal laws protecting people with disabilities from discrimination. Students taking courses on disability law, education law, employment law and health law are among the intended beneficiaries. The book will also benefit other students as well, such as those taking courses on civil rights issues and disabilities studies. In addition the book will assist lawyers, educators, employers, disabled persons and others who have direct or indirect interests in these significant federal laws, either on their own behalf or on behalf of those they represent or work with.
- of the major federal laws pertaining to discrimination against people with disabilities. It is not intended to provide a comprehensive analysis of those laws. Case citations are limited save for a few leading or significant illustrative examples, and secondary sources are not mentioned. Emphasis is placed on the statutes, regulations and significant points of substantive and procedural law. With a few exceptions there is relatively little discussion of policy issues, although the statutes, regulations and case law are placed in historical perspective for clarity. In addition, major issues of dispute have been noted throughout.
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Chapter 3 Definition of “Disability”? 17 32 results (showing 5 best matches)
- (with the exception of the Individuals with Disabilities Education Act discussed in Chapters 12–18), define an individual with a disability as one who:
- [a]ny mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.
- In 1997, the EEOC issued an Enforcement Guidance on the ADA and Psychiatric Disabilities to assist , in determining what constitutes a psychiatric disability under the ADA.
- The federal laws are intended to protect individuals who had a physical or mental disability in the past but who no longer suffer from that disability. Thus, the second prong of the definition of an individual with a disability encompasses individuals with a prior history of a physical or mental impairment, such as mental illness, cancer or heart disease, as well as individuals who have been misclassified as having such an impairment, such as one who was improperly classified as intellectually disabled. To satisfy this prong, the individual must show that the individual:
- Prior to the adoption of the 2008 Amendments, lower courts had ruled that individuals with cancer, HIV infection, hearing impairments, learning disabilities, ADHD, missing limbs and various visual impairments were not disabled because they were not able to identify a major life activity that was substantially limited. This broad list of major life activities makes such determinations unlikely under the 2008 Amendments. Because of the inclusion, for example, of “learning” and “concentrating,” students with learning disabilities or ADHD are likely to meet the statutory definition of disability.
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Chapter 17 Section 504 and the ADA: Elementary and Secondary Education 533 21 results (showing 5 best matches)
- More importantly, the IDEA only protects children who, by virtue of their disabilities, require school-age children with disabilities regardless of whether they require special educational services. “Qualified” persons with disabilities with respect to federal funds’ recipients
- Congress amended the Americans with Disabilities Act in 2008 as well as Section 504 to expand the definition of disability. These amendments broaden who is covered by
- FAPE to all children with disabilities requires school districts to assume costs for furnishing assessments and services to students with disabilities.
- , Title II of the Americans with Disabilities Act (ADA) prohibits all state and local government entities from discriminating on the basis of disability. Thus, Title II governs public schools.
- The DOE recommends that schools follow four basic principles to avoid discrimination on the basis of disability: (i) commitment from the highest level of leadership; (ii) coordinated compliance activities; (iii) involvement of people with disabilities in policy making; and (iv) furtherance of an institutionalized compliance procedure.
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Chapter 6 Architectural Barriers 151 10 results (showing 5 best matches)
- The Access Board’s primary functions are to ensure compliance with the ABA, to establish minimum guidelines and requirements for the standards issued pursuant to the ABA, to investigate alternative approaches to removing the architectural barriers confronting people with disabilities, and to make recommendations with respect to eliminating such barriers to the President and Congress. In addition, the Access Board is to examine the transportation and housing difficulties of people with disabilities and prepare plans and proposals for necessary future action.
- –4156, was the first federal law intended to ensure a barrier-free environment for persons with disabilities. The National Commission on Architectural Barriers to the Rehabilitation of the Handicapped recognized that voluntary action was insufficient and recommended to Congress that a federal agency be charged with promulgating and enforcing uniform policies, procedures and specifications to provide people with disabilities with access to government-funded or supported buildings.
- Section 504 provides additional protection for persons with disabilities seeking to achieve a barrier-free society. Indeed, one of the primary goals of
- accessible entry into the building. Further, if a federal agency resides in a (non-leased) building constructed prior to 1968 that has not been altered, the building need not be made accessible to people with disabilities.
- At the end of each fiscal year, the Access Board is required to present a report to Congress that includes 1) an assessment of the extent of compliance with the ABA, 2) a description and analysis of investigations made and actions taken by the Access Board, and 3) reports and recommendations delineating alternative approaches to the elimination of barriers confronting people with disabilities and the measures being taken by governments and agencies to eliminate such barriers.
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Chapter 16 IDEA: Remedies 513 6 results (showing 5 best matches)
- In any action or proceeding brought under this subsection, the court in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents or guardian of a child or youth with a disability who is the
- Compensatory educational services are designed to remedy—in whole or in part—the progress lost by a student with a disability because he or she was previously denied a FAPE. The issue of whether the IDEA provides a right to compensatory educational
- Although damages are unlikely to be available under the IDEA, damages may be available for a violation of other laws. The Handicapped Children’s Protection Act (HCPA) amended the IDEA in 1986 to provide that: “[n]othing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, title V of the Rehabilitation Act of 1973 . . . , or other Federal statutes protecting the rights of children and youth with disabilities.”
- The expenses for which parents are entitled to reimbursement presumably include all those necessary to enable the child with a disability to
- , some courts interpreted the statutory language—“such relief as the court determines is appropriate”—as permitting an award of damages for tuition reimbursement when the court determined that parents’ voluntary placement of their child with a disability was necessary for the child to receive a FAPE. The
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Title Page 1 result
Index 567 21 results (showing 5 best matches)
Table of Cases xxiii 3 results
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Chapter 15 IDEA: Procedural Issues 499 7 results (showing 5 best matches)
- , the IDEA provides for both federal and private enforcement. For private enforcement, the Part B regulations provide parents with two means of resolving disputes under the IDEA: (i) an impartial due process hearing system, and (ii) a complaint resolution procedure (CRP) formerly known as EDGAR (Education Department General Administrative Regulations). This chapter will focus on the due process hearing procedures. Parents of a child with a disability must first follow these due process procedures before filing suit under the IDEA.
- Prior to the enactment of the Handicapped Children’s Protection Act (HCPA) in 1986, parties attempted to circumvent the exhaustion requirement by alleging a violation of Section 504 of the Rehabilitation Act or of Section 1983 of the Civil Rights Act. Exhaustion of administrative remedies is not required under either of those statutes, nor under the Americans with Disabilities Act (ADA). The HCPA clarified the procedural requirements under the IDEA by explicitly requiring parties to pursue administrative remedies through the IDEA before seeking recourse via whether it deals with the child’s educational placement. While seemingly simple, this analysis can become complex in disability-based discrimination cases because of the significant overlap between the IDEA, the ADA, and the Rehabilitation Act. If the plaintiff is not seeking relief also available under IDEA, he or she would not be required to exhaust administrative remedies.
- The IDEA specifically provides that any party who is dissatisfied with the final administrative decision concerning a child with a disability may initiate a lawsuit in the appropriate state or federal court.
- that considerable reliance should be placed upon the procedures set forth in the IDEA to help ensure that children with disabilities are provided with appropriate educational placements. When a due process hearing is conducted pursuant to the IDEA, the hearing officer must be impartial in order to preserve the integrity of the process. Accordingly, a hearing officer, whether at a local or state level, may not be “an employee of the State educational agency or the local educational agency involved in the education or care of the child.”
- Section 504) that broadened the definition of disability under those statutes. Under the IDEA, a child is only eligible for services if the child “needs special education and related services.”
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- Publication Date: March 11th, 2019
- ISBN: 9781642429114
- Subject: Disability Law
- Series: Nutshells
- Type: Overviews
- Description: This Nutshell presents an overview of the major federal disability laws with emphasis on the statutes, regulations, and significant points of substantive and procedural law. The sixth edition includes significant focus on the Americans with Disabilities Act (ADA), including its 2008 Amendment and accompanying regulations. Features coverage on constitutional rights; the definition of "disabled"; Rehabilitation Act of 1973; employment discrimination; programs and services; and housing, education, and transportation. Also reviews the many relevant areas of the Individuals with Disabilities Education Act (IDEA), including the 2004 Amendments and two recent Supreme Court cases under the IDEA.
