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State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at

N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

September 18, 2016

Students with a “disability for the purposes of IDEA” cannot establish a prima facie of unlawful discrimination based on the student being disabled for the purposes of ADA and §504

Students with a “disability for the purposes of IDEA” cannot establish a prima facie of unlawful discrimination based on the student being disabled for the purposes of ADA and §504
B.C., et al. v. Mount Vernon School District, et al, USCA 2nd Circuit, No. 143603cv

In addressing a question of “first impression”, the United State Circuit Court of Appeals, Second Circuit, held that as the definition of “disability” for the purposes of the Americans with Disabilities Act, 42 U.S.C. §12102(1), [ADA] claims and claims under the Rehabilitation Act, 29 U.S.C. §705(20), [§504] differ from the definition of “disability” for the purposes of claims advanced pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1401(3)(A) [IDEA].*

Accordingly, said the court, an individual with a “disability” under the IDEA does not categorically qualify as an individual with a disability under the ADA and §504 and data relating to “child[ren] with a disability” under the IDEA cannot establish a prima facie case with respect to a claim predicated on the plaintiff having a disability under the ADA and §504.

The court explained that “To establish a prima facie case of discrimination under either the ADAor §504, a plaintiff must show the following: (1) plaintiff is a “qualified individual with a disability;” (2) plaintiff was “excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by [the] public entity;” and (3) “such exclusion or discrimination was due to [plaintiff’s] disability.”

Further, said  the Circuit Court, “[t]he ADAasks whether an impairment ‘substantially limits’ a major life activity,  while the IDEA trains on whether an impairment necessitates ‘special education and related services.’ Thus, a child might ‘need special education and related services’ by reason of an impairment, id., even if that impairment does not ‘substantially limit … [a] major life activit[y].’” Citing Ellenberg v. N.M. Military Inst., 572 F.3d 815, 821 (10th Cir. 2009), the court said “one may … qualify as ‘disabled’ under the IDEA for purposes of that statute without demonstrating a ‘substantially limit[ing]’ impairment.”

* The ADA and Section 504 define the term “disability” differently than the IDEA does. The ADA defines “disability” as a “physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. §12102(1)(A). Section 504 expressly incorporates, with certain qualifications not applicable here, the ADA’s definition. 29 U.S.C. §705(20)(B). By contrast, under the IDEA, a “child with a disability” has one or more of an enumerated list of impairments requiring “special education or related services."

Public Personnel Law E-books

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on

The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on disability benefits available to public officers and employees employed by New York State and its political subdivisions. For more information click on