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Pay Attention! OCR Issues New Guidance Regarding Students with ADHD

On July 26, 2016, the United States Department of Education Office for Civil Rights (OCR) published a Dear Colleague letter “to clarify and provide guidance” to districts regarding their obligations to students with attention-deficit/hyperactivity disorder (ADHD) under Section 504 of the Rehabilitation Act of 1973 (Section 504).  Because the Americans with Disabilities Act Amendment Acts broadened the definition of the term “disability,” more students with ADHD now qualify for protection under Section 504.  As a result, there has been an increase in the number of complaints alleging discrimination against students with ADHD.  Through its investigation and enforcement efforts, OCR has concluded that many teachers and administrators are unable to recognize the disorder or how it can hinder “a student’s equal access to a school district’s program.” To help rectify this problem, OCR issued new guidance to make certain that students with ADHD receive a free appropriate public education (FAPE).

For the most part, OCR discovered that FAPE may be denied to such students due to difficulties in “identifying and evaluating students who need special education or related services because of ADHD.”  Specifically, it identified the following problems:

  • Students are not being referred for an evaluation or identified by the district as needing an evaluation;
  • Once identified, students are not evaluated in a timely manner; and
  • The evaluations are inadequate.

According to the letter, many districts fail to fulfill their Section 504 duties even when the student is identified and adequately evaluated in a timely manner because they often misunderstand ADHD and the service obligations imposed under Section 504.  To help assist districts in being more aware of their legal obligations to students with ADHD, OCR also published a Resource Guide aimed at ensuring that these students are properly evaluated and provided “timely and appropriate services.”

The Resource Guide warns that districts are in danger of violating Section 504 when they:

  • Rigidly insist on first implementing intervention strategies after being confronted with a student who is struggling at school or in the classroom.
    • While some intervention strategies may prove to be effective, failing to conduct an evaluation, when a district believes that a student may have a disability and, as a result, require special education services, is a violation of Section 504.
    • Furthermore, OCR also refutes the notion that a district must first collect data from an intervention strategy in order to conduct an evaluation.
    • If a district insists on providing such strategies, it must do so while simultaneously conducting an evaluation.
  • Fail to inform a family of a student who is thought to have ADHD that they need not pay for an independent medical assessment deemed “necessary” by the district, but can opt to accept a school-funded assessment instead.
    • In the eyes of OCR, it may not require an extensive analysis to determine whether a student has a disability under Section 504.
    • However, if the district decides that a medical assessment is necessary in order to make this determination with regards to a student who is thought to have ADHD, the assessment must be provided at no cost to the student and his/her family.
    • If the family insists on paying for their own private assessment, the district still must clearly communicate that they can opt to accept a school-funded assessment instead.
    • OCR states that “[c]ompliance problems could arise when school districts and parents do not communicate clearly on this requirement.”

Many other topics relating to the intersection of students with ADHD and Section 504 are addressed in the Resource Guide.  It can be found in its entirety on OCR’s website or at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201607-504-adhd.pdf.

If your district has any questions or concerns about OCR’s recent guidance, please do not hesitate to contact the School Law Group at Stock and Leader.

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