Many students with Tourette are assisted by legally binding 504 Plans. However, too often students are erroneously denied. This resource will assist in understanding eligibility requirements for a 504 Plan and how one may be helpful for students with Tourette.
504 Plan Important Eligibility Facts for Students with Tourette Syndrome
Section 504 of the Rehabilitation Act of 1973 provides the basis for ‘504 Plans’ which can be developed to meet the unique needs of a student with Tourette. 504 Plans provide services, accommodations, and modifications so that students with disabilities receive equal access to a free appropriate and public education from schools that receive federal funding. Additionally, 504 Plans are legal documents which must be followed.
Equal access – Equal access guarantees that every student has an equal opportunity to participate in all aspects of the educational process, including learning facilities, resources, and extracurricular programs. Example of equal access would be providing a copy of notes and/or access to keyboarding for taking notes. If a student with Tourette is unable to take notes to study from, they do not have equal access when studying for tests. Another example would be the student’s rights to participate in sports, music programs and other programs available at the school despite low academic achievement.
The civil rights law, Americans with Disability Act of 1990 (ADA) expanded on the Rehabilitation Act regarding discrimination of people with disabilities. It defined an individual with a disability as a person who: “(1) has a physical or mental impairment that substantially limits one or more major life activities; OR (2) has a record of such an impairment; OR (3) is regarded as having such an impairment.”
The Americans with Disabilities Act Amendments Act of 2008 (ADAAA)
- The 2008 ADAAA restores and clarifies the original definition of disability originally intended by Congress regarding the phrase ‘substantially limits’ a major life activity.
Clarifying the term ‘substantially limits’ is important for students with Tourette. The ADAAA explained this clarification was necessary because “school districts were erroneously interpreting it to mean significantly limit”. This results in denying students who have symptoms which substantially limit a major life activity. Below is a quote from a federal ADAAA Q&A resource regarding Substantial vs Significant.
“To have an “actual” disability (or to have a “record of” a disability) an individual must be (or have been) substantially limited in performing a major life activity as compared to most people in the general population. An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting.” Click here to learn more.
- It is important to recognize that the ADA is a civil rights law therefore not based on academic achievement.
- Many students with Tourette are unfairly and wrongly discriminated against and denied 504 Plans because they have above average grades and/or high achievement assessment scores. This occurs even though Section 504 also states students may be eligible “regardless of their intelligence”, and if they are “unable to fully demonstrate their ability”.
- ADAAA “emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.”
- While in some cases, 504 eligibility may require assessments/evaluations, this amendment states that ‘extensive analysis’ is not required. For example, accommodations/modifications may be provided without extensive testing if the student’s symptoms clearly interfere with a major life activity such as reading, written language, copying from the board and completing written assignments.
ELIGIBILITY FOR STUDENTS WITH TOURETTE SYNDROME
Eligibility for 504 Plans for students who have TS and/or related disorders is based on the following provisions of the ADAAA:
- ‘Major Life Activity’ List
For a student to be found eligible for a 504 Plan, it must be demonstrated that the student’s symptoms substantially limit a ‘major life activity’.
“Major life activities, as defined in the Section 504 regulations at 34 C.F.R. 104.3(j)(2)(ii), include functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating.” This list is not meant to be exhaustive.
For students with Tourette, four key ADAAA additions to the list of ‘major life activities’ are particularly beneficial:
- Reading– Numerous symptoms of Tourette and related disorders may substantially limit the activity of ‘reading’. Examples: numerous tics, eye blinking, head jerks, processing delays, obsessive/compulsive symptoms, arm movements, attention deficit disorder, counting words and more.
- Communication (Oral)
Many students with TS have vocal tics that can substantially limit verbal communication. Examples: reading out loud, social interactions, public speaking and more. An example of an accommodation may be to allow a student to present orally to a teacher instead of the entire class.
- Communication (Written) – Many students with TS have tics and/or dysgraphia which substantially limits their ability to write and therefore to ‘communicate’ in a written fashion. Examples of accommodations are scribing, notes provided, access to word processors.
- Concentrating; Thinking – Executive Function, obsessive compulsive symptoms ADD and processing delays may require modifications and or accommodations, depending on the unique needs of the child, in order to provide ‘equal access’ to an education.
B. Episodic and Inconsistent Symptoms
The ADAAA “clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”
This speaks directly to the waxing and waning as well as the irregularity of Tourette symptoms which result in episodic and inconsistent limitations. Being prepared to demonstrate specifically how symptoms interfere and therefore prevent equal access when they are active may be important during a 504 eligibility meeting.
Additionally, since many symptoms are episodic and/or hidden, it is often difficult for people who are not familiar with Tourette syndrome to recognize the significant impact symptoms have on a student’s ability to ‘learn’ ‘read’ concentrate, think and/or ‘communicate’. For instance, it is not unusual for people to dismiss frequent blinking, arm/hand/head jerks and their impact on reading and/or writing.
C. Disability Can Impact One Major Life Activity without Needing to Impact Another
The ADAAA clarifies that an impairment may limit only one major life activity and student still be eligible for a 504 Plan. As an example, a student who has difficulty with written communication may be eligible even if he/she does well academically and symptoms do not substantially impact a second major life activity such as ‘learning’. This is a critically important change as too often when a student maintains ‘good’ grades she/he is determined to be ineligible.
D. Management of Disability and Mitigating Measures Do Not Make a Student Ineligible
The following clarifying statement from the ADAAA is important for students with Tourette: “an individual with an impairment that substantially limits a major life activity should not be penalized when seeking protection under the ADA simply because he or she managed their own adaptive strategies or received informal or undocumented accommodations that have the effect of lessening the deleterious impacts of their disability.”
For example, a student who has been allowed by his teacher to take tests in a quiet and separate environment cannot be determined to be ineligible because of this undocumented accommodation.
If a student’s symptoms are being managed by medication, with specific strategies or undocumented supports he/she can still qualify for a 504 Plan. Additionally, when a student maintains high grades due to working with an after-school tutor or spending an extraordinary amount of time and effort on homework, he/she may require a 504 Plan to ensure equal access.
Mitigating measures can no longer be used as a reason to deny eligibility, with the exception of eyeglasses or contact lenses. Medications to manage symptoms are mitigating measures that cannot be used to deny a student a 504 Plan.
- Section 504 of the Rehabilitation Act of 1973 states: “No otherwise qualified individual with a disability in the United States . . . shall solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
- Protecting Students With Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities
- Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA