Yes. If a temporary illness or condition substantially limits a child in a major life activity for an extended period of time, she is protected under the ADA. This protection applies to both having an actual disability and having a record of a disability. [28 C.F.R. Sec. 35.108(d)(1)(ix).] Similarly, an illness that is episodic or in remission is a disability under the ADA if it substantially limits a major life activity when active. [28 C.F.R. Sec. 35.108(d)(1)(iv).]
The child is equally protected for any of these conditions under Section 504. ADA standards, including its definition of disability, are incorporated into Section 504. [29 U.S.C. Sec. 794(d).] As such, a child in any of these situations is protected against discriminatory acts based on her disability. [29 C.F.R. Sec. 104.4.] She may also be entitled to:
- Reasonable accommodations in order to have an equal access to the school programs as children without disabilities; or
- Special education and related services in order to receive a free and appropriate public education (FAPE). See Protecting Students with Disabilities, 67 IDELR 189, (OCR 2015).
The determination of whether a temporary illness or condition substantially limits a major life activity for an extended period of time should be made on a case-by-case basis, taking into account:
- The duration, or expected duration of the impairment; and
- The extent to which the condition actually limits a major life activity. See Protecting Students with Disabilities, 67 IDELR 189 (OCR 2015).
There is no established rule on what is an “extended period of time”. However, OCR has stated that Districts should not interpret this provision rigidly. For instance, OCR has found that a California District should have evaluated a child for Section 504 accommodations when he had to use a wheelchair for four months as a result of a severe leg break. [Anaheim City (CA) Sch Dist., 115 LRP 19319 (OCR 12/02/14).]
In an opinion letter, OCR has provided the following analysis on the condition of broken limbs, which can serve as guidance in other cases:
“Neither Section 504 nor the ADA contemplate that only “life-long” disabilities are covered. The answer depends, once again, on whether the broken limb constitutes an impairment that significantly limits a major life activity. The significance of the impairment relates both to its severity and to its duration. Coverage depends upon an evaluation of all the facts in each situation.
For example, a right-handed student broke his left arm and the break is expected to heal normally, without complications. This would probably not constitute a disability because the impairment will heal within a short period of time and, even during its worst phase, would not prevent the student from attending school or from doing written assignments.
On the other hand, a student broke both legs, recovery is delayed by complications and surgeries, and the entire period of disability will last for many months. In this example, the condition would likely be covered because the impairment prevents the student from walking and will not heal within a period of time that is typical for such injuries. Furthermore, the amount of time is sufficiently long to suggest that the student’s educational program will be significantly disrupted.
There are no hard and fast rules as to the specific temporary impairments that may constitute disabilities under Section 504 and the ADA. Therefore, it is not possible to list conditions that will always be considered disabilities. Schools must evaluate these conditions on a case-by-case basis. If, after the evaluation, the school district concludes that the condition does constitute a disability, the school must evaluate the student’s needs to determine what support services are required if any. However, the evaluation does not have to be extensive or time consuming, but simply enough to determine what services or aids the child needs in order to continue to receive an appropriate education.” [Letter to Rahall, 21 IDELR 575, (OCR 1994).]