Do Not Get Ambushed by the Definition of Disability

Sometimes perception does not tell the entire story. That is especially true when you attempt to qualify for educational disability services. Many a parent has felt ambushed when turned down for school accommodations for a child because the child's condition did not qualify as a disability. Because decisions about who qualifies for disability accommodations and who does not depends on the definition of disability, it is important that parents understand the differences in the various legal definitions of disability.

Merriam-Webster Online Dictionary defines disability as "the condition of being incapacitated by an illness or injury; also: physically or mentally impaired in a way that substantially limits activity ". Generally, this definition comes to mind when people think of the word disability. However, the legal definitions of disability govern who receives educational accommodations and who does not. Major sources of legal definitions of disability include the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, and the Individuals with Disabilities Education Act ("IDEA").

The ADA and Rehabilitation Act contain similar definitions of disability. The ADA defines disability with respect to an individual as:

• 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.

Here, the definition contains three alternative standards used to determine the existence of a disability.

The first standard requires a physical or mental impairment that substantially limits one or more major life activities of the individual. Major life activities include self-care, manual tasks, breathing, hearing, speaking, walking, seeing, standing, and working. ADA and Section 504 of the Rehabilitation Act expressly declare "learning" to be a major life activity as well as the components of learning such as reading.

The determination of whether an individual has a disability must consider mitigating measures used by the individual. Mitigating measures are devices or practices that lessen the effects of the individual's physical or mental impairment. Common mitigating measures include corrective eyeglasses and medications. For instance, a wheelchair might mitigate the major life activity of walking so that a child can go from class to class. Do note that because a mitigating measure lessens the limitations associated with one activity it may not lessen the effects of other activities. For instance, in the wheelchair example, limitations other than walking may remain that limit the individual's ability to take notes in class. Therefore, the effect of mitigating measures on all relevant life activities must be considered. However, reasonable modifications, academic adjustments, auxiliary aids and services, or related aids and services legally required to be provided by an academic institution are not included as mitigating measures. Simply put, mitigating measures available to the individual without any action or assistance from the educational institution or school are considered.

The second standard protects individuals with "a record of such impairment." This means that individual has a history of , or has been misclassified as having, a physical or mental impairment that substantially limits at least one life activity such as a cancer survivor previously declared disabled who has gone into remission.

The final standard does not require the individual to have had or have a disability. This standard only requires the perception as having a physical or mental impairment. In other words, the standard recognizes as disabled an individual who is treated as disabled. However, receiving treatment for a physical or mental impairment alone does not fulfill this standard's requirement.

The IDEA defines a child with a disability as a child:

• with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this title as "emotional disturbance"), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
• "who, by reason thereof needs special education and related services."

The IDEA provides a less precise definition for children aged 3 through 9 that at the discretion of the State and local educational agency may includes a child

• "experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in 1 or more of the following areas: physical development; cognitive development; communication development; social or emotional development; or adaptive development; and"
• "who, by reason thereof, needs special education and related services."

However, a child with a disability does not necessarily receive special education or related services. A team uses an evaluative process to determine a child's eligibility for special education and related services. Like the consideration of mitigating measures with regard to the ADA and Rehabilitation Act determinations of disability, the IDEA considers mitigating measures. However, unlike the ADA and Rehabilitation act definitions, the IDEA definition contains a list of diagnoses. A child found to have a listed diagnosis under the IDEA probably has a strong, although rebuttable, presumption of a major life activity limitation such as learning.

From the definitions, it should be clear that a child protected under IDEA is also protected under the ADA and Section 504 of the Rehabilitation Act. However, the converse is not true.

While it may seem overwhelming at time navigating school and education law, take it one step at a time and you will succeed. By understanding the various definitions of disability and your child's condition, you have taken a big first step toward effectively advocating for your child.