Americans with Disabilities Act

It is illegal for public entities to discriminate against individuals with disabilities.  No one disputes this premise.  But did you know that if your website does not meet certain standards of accessibility you could be the subject of a complaint and investigation by OCR?

In 2010, the U.S. Department of Education’s Office of Civil Rights issued a “Dear Colleague” letter to colleges and universities letting them know their websites and on-line portals need to be accessible to all students.  In May of 2011 that was extended to elementary and secondary institutions as well.  Since then OCR has been monitoring website accessibility through its power to enforce Section 504 of the Rehabilitation Act of 1973 and Title II of the ADA. Continue Reading Is Your Website Handicap Accessible?

The Individuals with Disabilities Education Act (IDEA) guarantees students with disabilities access to a free appropriate public education (FAPE) and establishes a formal administrative framework within which disputes concerning the denial of FAPE are addressed. In addition, other federal statutes, such as the Title II of the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act, protect individuals with disabilities, and may also be applicable to children in a school setting. Under current law, a plaintiff bringing a disability discrimination claim under these other federal discrimination statutes which seeks relief also available under the IDEA, is required to exhaust the IDEA’s administrative process before bringing suit.  However, in a recently released opinion, the U.S. Supreme Court has clarified when exhaustion under the IDEA may not be required. Continue Reading U.S. Supreme Court: Exhaustion of administrative remedies under the IDEA not required for disability discrimination claim if claim does not involve denial of FAPE

In late December of 2016, the Department of Education’s Office for Civil Rights (OCR) issued information to school districts regarding how the use of restraint and seclusion may result in discrimination against qualified students with disabilities in violation of Federal laws that prohibit disability discrimination, including Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II).  The guidance sets forth OCR’s interpretation of these laws and regulations.  For more information about the Department’s best practices, please see the Department’s Restraint and Seclusion: Resource Document (May 15, 2012).  The Resource Document recommended that school districts never use physical restraint or seclusion for disciplinary purposes; never use mechanical restraint; and that trained school officials use physical restraint or seclusion only if a child’s behavior poses imminent danger of serious physical harm to self or others.

What is the concern?

According to the Department’s Civil Rights Data Collection (CRDC), during the 2013-14 school year students with disabilities were subjected to mechanical and physical restraint and seclusion at rates that far exceeded their non-disabled peers.  The existence of this disparity raises a question as to whether school districts are imposing restraint or seclusion in discriminatory ways. In addition, OCR continues to observe legal violations in investigations of schools’ use of restraint and/or seclusion for students with disabilities.

What is restraint? 

In general, OCR uses the following definitions for mechanical restraint and physical restraint. Mechanical restraint refers to the use of any device or equipment to restrict a student’s freedom of movement. The term does not include devices implemented by trained school personnel, or utilized by a student that has been prescribed by an appropriate medical or related services professional and are used for the specific and approved purposes for which such devices were designed, such as:

  • Adaptive devices or mechanical supports used to achieve proper body position, balance, or alignment to allow greater freedom of mobility than would be possible without the use of such devices or mechanical supports;
  • Vehicle safety restraints when used as intended during the transport of a student in a moving vehicle;
  • Restraints for medical immobilization; or
  • Orthopedically prescribed devices that permit a student to participate in activities without risk of harm.

Physical restraint refers to a personal restriction that immobilizes or reduces the ability of a student to move his or her torso, arms, legs, or head freely. The term physical restraint does not include a physical escort. Physical escort means a temporary touching or holding of the hand, wrist, arm, shoulder or back for the purpose of inducing a student who is acting out to walk to a safe location.

What is seclusion? 

In general, OCR defines seclusion as the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving.  It involves the monitored separation of the student in a non-locked setting and is implemented for the purpose of calming; it does not include a timeout, which is a behavior management technique that is part of an approved program.

What does Federal law require school districts to do for students with disabilities? 

Section 504 requires that students with disabilities receive a free appropriate public education (FAPE).  The Section 504 regulation defines FAPE as the provision of regular or special education and related aids and services that are designed to meet the individual needs of students with disabilities as adequately as the needs of students without disabilities are met.  A student’s behavioral challenges, such as those that lead to an emergency situation in which a school believes restraint or seclusion is a justified response, could be a sign that the student actually has a disability and needs special education or related aids and services in order to receive FAPE.

Can the use of restraint or seclusion deny a student’s receipt of Section 504 FAPE Services? 

Yes. There are multiple ways in which the use of restraint or seclusion might deny FAPE which are outlined in The Business Case for Preventing and Reducing Restraint and Seclusion Use which was prepared for the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration.  For example, the use of restraint or seclusion may have a traumatic impact on that student such that even if she were never again restrained or secluded, she might nevertheless have new academic or behavioral difficulties that, if not addressed promptly, could constitute a denial of FAPE.   See National Center for Trauma-Informed Care and Alternatives to Seclusion and Restraint last updated October 26, 2015.  Furthermore, the repeated use of restraint or seclusion in school could deny a student’s receipt of FAPE in another way.  Consider a student with a disability who engages in behavior in response to which the school secludes him for extended periods and on multiple occasions. While secluded, the student does not receive educational instruction or services. Cumulatively, the school’s repeated use of seclusion with that student could result in the school’s failure to comply with the Section 504 team’s decision about the regular or special education, related aids and services, or supplemental services and modifications that the student needs, or the appropriate setting in which to receive those services and therefore may constitute a denial of FAPE as outlined in the 2016 Dear Colleague Letter: Restraint and Seclusion of Students with Disabilities.

Does the parent or guardian of a student with a disability have a right to discuss the impact of restraint or seclusion on their child’s access to FAPE? 

Yes. Section 504 requires that school districts establish and implement a system of procedural safeguards for parents or guardians to appeal district actions regarding the identification, evaluation, or educational placement of students with disabilities who need or are believed to need special education or related services. The school district must tell parents and guardians about this system, notify them of any evaluation or placement actions, allow them to examine their child’s records, afford them an impartial hearing with opportunity for parent or guardian participation and representation by counsel, and provide them a review procedure according to the 2016 U.S. Department of Education Office for Civil Rights Fact Sheet: Restraint and Seclusion of Students with Disabilities.

The education team at Berchem, Moses & Devlin, P.C. offers representation to school district clients across the State of Connecticut.  Visit, or email us at

On October 11, 2016, less than a week away, a final rule amending the regulations for Title II of the Americans with Disabilities Act (ADA) will take effect.  The new regulations will provide guidance to local government entities, including school districts, regarding the interpretation and application of the ADA Amendments Act of 2008 (ADAAA).  Important for educators, the regulations will help school districts determine their responsibilities to students with disabilities under Section 504 of the Rehabilitation Act of 1973 (Section 504) due to Section 504’s reliance on the ADA’s regulations.

ADA Amendments Act of 2008

In response to two major Supreme Court decisions narrowing the definition of what constituted a disability under the ADA, Congress took action and passed the ADAAA in 2008.  The ADAAA clarified Congress’ intent and interpretation of what constitutes a disability for the purposes of protection under the ADA.  Of importance for school districts nationwide, the ADA’s definitions and regulatory structure are relied upon for determining a student’s eligibility for, and the scope of, services or accommodations required under Section 504.  Though the ADAAA took effect in 2009 and educators may already be familiar with its provisions, these regulations will provide helpful guidance for school officials in both special and regular education matters.

Changes to the Title II Regulations

The main objective of the new regulations is to help clarify the purpose of the ADAAA – largely, to establish that the term “disability” is to be defined broadly.  Congress’ intent was to shift the legal focus away from battling over whether an individual has a disability, and instead focus attention on determining whether qualified entities, such as school districts, have satisfied their duty to avoid disability discrimination.  To this end some highlights of the new regulations include:

  • An expansion of the definition of “major life activities,” including the addition of “writing,” “learning,” “reading,” “concentrating,” and “thinking” as a major life activities;
  • Guidance that the term “substantially limits”  must be construed broadly and in favor of coverage under the ADA;
  • The addition of Attention-Deficit/Hyperactivity Disorder (ADHD) as an example of a physical or mental impairment;
  • A prohibition against considering the ameliorative effects of mitigating measures (i.e. hearing aids, medication, or assistive technology) other than ordinary eyeglasses or corrective lenses when determining whether an individual has a disability for purposes of the ADA;
  • Recognition that episodic impairments (i.e. occasional epileptic seizures) or impairments in remission can still be a disability under the ADA if they substantially limit a major life activity when active; and
  • Guidance that only individuals who have a disability or individuals with a record of a disability are entitled to reasonable modifications under the ADA.  Individuals who are “regarded as” having a disability, while not entitled to reasonable modifications, may not be discriminated against.

If you have any questions about the new Title II regulations, the education team at Berchem, Moses & Devlin, P.C. can help.  For inquiries regarding the ADA, Section 504 compliance and more, visit, or email us at