Mitigating Measures and Section 504 Disability Determination

Pursuant to the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), the determination of whether an impairment substantially limits a major life activity is required to be made without regard to the ameliorative effects of mitigating measures, such as:

  • Medication, medical supplies, equipment, or appliances; low-vision devices (which do not include ordinary eyeglasses or contact lenses); prosthetics, including limbs and devices; hearing aids and cochlear implants or other implantable hearing devices; oxygen therapy equipment and supplies; use of assistive technology;
  • Reasonable accommodations or auxiliary aids or services; and
  • Learned behavioral or adaptive neurological modifications.

To comply with the mitigating measures rule, the Section 504 team must identify the mitigating measures currently being used by the student. Once identified, the team must determine how the student’s impairment would impact the major life activity at issue in the absence of the ameliorative effects of each mitigating measure. For example, if the student has been diagnosed with ADHD and is medicated (medication is a mitigating measure), the team must determine whether the student’s impairment would substantially limit concentration or learning (or any other appropriate major life activity or major bodily function) if medication were removed. The team must identify each mitigating measure used and determine how the impairment would impact the major life activity without the positive impact of the mitigating measure.

OCR has determined that health plans and emergency plans are mitigating measures. When a student with a health plan or emergency plan is evaluated for the existence of a Section 504 disability, the positive or “ameliorative effects” of the health plan cannot be considered in determining whether the student is substantially limited (in the same manner as discussed previously with respect to medication) and, therefore, disabled (54 IDELR 61, OCR 2009).

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MYTH: Learning must be impacted for a student to be Section 504 disabled.

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