Free Appropriate Public Education

Free Appropriate Public Education (FAPE)

An appropriate education is a program designed to meet the individual educational needs of individuals with disabilities as adequately as the needs of nondisabled students are met. ... 34 CFR § 104.33(b)(1)(i)

Section 504 of the Act protects persons from discrimination based upon their disabling condition. A person is disabled under the definition of Section 504 if he or she:

1. Has a physical or mental impairment which substantially limits one or more major life activities;
2. Has a record of such an impairment; or
3. Is regarded as having such an impairment. [34 CFR 104.3(j)]

Mental and physical impairments are any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. ... 34 CFR § 104.3 (j)(2)(i)

Substantial limitation (as defined by the U.S. Equal Employment Opportunity Commission) means being unable to perform a major life activity as compared to most people in the general population. 29 CFR 1630.2(j)(1)(ii) As a guide, when determining whether an impairment substantially limits an individual in a major life activity, consider the ability of the individual to perform a major life activity as compared to most people in the general population.

Major life activities mean functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. 34 CFR § 104.3(j)(2)(ii). The Americans with Disabilities Act Amendments Act (ADAAA) of 2008 added: reading, concentrating, thinking, sleeping, eating, lifting, bending and communicating and the operation of a major bodily function including the immune system, normal cell growth, digestive, bowel, bladder functions, among others. ... 42 USC § 12102(2).

Cultural, Environmental and Economic Disadvantages, in themselves are factors not covered under Section 504, nor are prison records, age, or homosexuality. 34 CFR § 104 Appendix A. Analysis of Final Regulations-Examples can include: homeless, migrant, English as a Second Language, poverty, cultural factors, attendance problems, transiency, divorce, death of a family member and other family crises, or military deployments. However, if a person who has any of these characteristics also has a physical or mental impairment, the person is included within the definition of a person with a disability.

Prior to the passage of the ADAAA 2008, the Section 504 team could consider the student's use of mitigating measures in determining whether the student was a person with a disability. Mitigating measures are defined as devices or practices that corrected or reduced the effect of that person's mental or physical impairment (such as medication or eyeglasses).

A person who did not experience substantial limitation in any major life activity when using mitigating measures did not meet the definition of a person with a disability and was not entitled to a FAPE under Section 504.

The ADAAA of 2008 changed this practice with the inclusion of:

Mitigating measures - In determining whether an impairment substantially limits a major life activity, the Act specifically provides that the disability determination shall be made without reference to the beneficial effects of mitigating measures. The Act defines mitigating measures by including the following:

• Medication, medical supplies, appliances, low-vision devices (not including regular eyeglasses or contact lenses). Prosthetics including limbs and devices, hearing aids and cochlear implants, mobility devices or oxygen therapy equipment and supplies;
• Use of assistive technology;
• Reasonable accommodations or auxiliary aids or services; or
• Learned behavioral or adaptive neurological modifications.

The corrective effects of mitigating measures (except for eyeglasses or contact lenses) cannot be considered in determining whether or not a person is disabled. 42 U.S.C. § 12102(4)(E).

Nonacademic Services - If offered by the school division, qualified disabled persons must be provided with an equal opportunity to participate in:

• Nonacademic and extracurricular activities;
• Counseling services (personal, academic, vocational, guidance, or placement). School divisions must ensure that students with disabilities are not counseled toward more restrictive career objectives than nondisabled students;
• Physical education and athletics.

Section 504 regulations prohibit exclusion from or denial of the benefits of an extracurricular activity on the basis of disability, assuming the student is otherwise qualified to participate. ...34 CFR § 104.37.