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(16.6) What criteria does my child need to meet to be eligible for protections and services under federal and state discrimination laws?

(16.6) What criteria does my child need to meet to be eligible for protections and services under federal and state discrimination laws?

A student is protected under disability discrimination laws if she:

  1. Has a physical or mental impairment that limits  (under state law) or substantially limits (under federal law), one or more major life activities;
  2. Has a record of such an impairment; or
  3. Is regarded as having such an impairment.

In making this determination, the school must take a broad view of the available information in favor of finding that the student has a disability.
[28 C.F.R. Sec. 35.108(a)(2); 29 U.S.C. Sec. 794(d).]

The key component of the eligibility criteria is the requirement that a student have a “physical or mental impairment that substantially limits a major life activity.

This language has three parts:

  1.  Physical and mental impairment;
  2.  Substantial limitations; and
  3.  Major life activity.

Federal law defines a physical or mental impairment as:

  1. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or
  2. Any mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability.
    [28 C.F.R. Sec. 35.108.]

Physical or mental impairments include, but are not limited to: orthopedic, visual, speech, hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, dyslexia, learning, reading, and other specific learning disabilities, Attention Deficit Hyperactivity Disorder, Human Immunodeficiency Virus Infection (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.

Under federal law, the condition/disability must substantially limit a life activity. “Substantially limits” means a significant limitation on the ability of an individual to perform a major life activity as compared to most people in the general population.  A substantial limitation does not need to prevent, or significantly or severely restrict the performance of the activity.

This determination should be made through an individualized assessment that:

  1. Does not take into account the ameliorative effects of mitigating           measures except ordinary eyeglasses and contact lenses;
  2. Need not be based on scientific, medical or statistical evidence, unless deemed appropriate;
  3. But can, in a particular case, involve consideration of the condition, manner and duration in performing a major life activity such as effort and time required, pain experienced or the effect on a major bodily function.”

Mitigating measures include, but are not limited to:

  1. Medication, medical supplies, equipment, appliances, low-vision devices (defined as devices that magnify, enhance, or otherwise augment a visual image, but not including ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aid(s) and cochlear implant(s) or other implantable hearing devices, mobility devices, and oxygen therapy equipment and supplies;
  2. Use of assistive technology;
  3. Reasonable modifications or auxiliary aids or services;
  4. Learned behavioral or adaptive neurological modifications; or
  5. Psychotherapy, behavioral therapy, or physical therapy.

Major life activitiesinclude, but are not limited to:

  1. Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working; and
  2. The operation of a major bodily function, such as the functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems. The operation of a major bodily function includes the operation of an individual organ within a body system. [28 C.F.R. Sec. 35.108(b)(1)(i).]

The definition of disability under state law is broader, extending to any health impairment that requires special education or related services. [Cal. Civ. Code Sec. 51(e)(1); Cal. Gov. Code Sec. 11135; Cal. Gov. Code Sec. 12926(m)(2).]

An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Similarly, a temporary illness is a disability if it substantially limits a major life activity for an extended period of time that will likely disrupt a student’s education.
[28 C.F.R. Sec. 35.108(d)(1)(iv)-(ix).]