Since Congress has explicitly rejected the Supreme Court’s decisions in Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturer v. Williams, some school districts may need to remove references to these cases from training materials and guidance for staff on defining "substantial limitation" and "major life activities".

In addition, a new list of major life activities explicitly contained in the statute now includes eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating.  Although many districts have stretched the definition of "learning" to include impairments to "focus" and "concentration" associated with various health impairments including Attention Deficit Hyperactivity Disorder (ADHD), the inclusion of "concentration" as a major life activity makes this stretch unnecessary and expands the likelihood that students with ADHD and other focus-impairing conditions will qualify as disabled under Section 504.  Districts may wish to provide training for staff about ways in which the ability of a student to concentrate may be compared to the average student in the general population, such as through use of checklists and behavior rating scales.

Also, since the ADA now requires that disability determinations be made without regard to mitigating measures such as medication, medical supplies, appliances, low-vision devices (except eyeglasses and contact lenses), prosthetics, hearing aids, and mobility devices, students will also need to be assessed for eligibility under Section 504 without regard to these mitigating measures as of January 1, 2009.  For many districts, this may also require a change to Section 504 eligibility determination forms, many of which currently state or imply that if a student is functioning normally with mitigating measures, the student is not eligible under Section 504.

For my readers in the shool nursing profession, what do you think the implications of the new law will be on decisions to write an Individualized Health Care Plan (IHCP) for a student, versus a Section 504 plan?  My guess is that we are going to start to see a reversal of the trend from the past 5-10 years that was moving away from Section 504 plans and toward IHCP’s, sliding in the opposite direction.