On July 26, 2016, the U.S. Department of Education issued guidance in the form of a Dear Colleague Letter and an accompanying resource guide, entitled “Students with ADHD and Section 504: A Resource Guide” to clarify the obligations of schools that received federal funds to students with attention-deficit/hyperactivity disorder (“ADHD”) or attention-deficit disorder (“ADD”) under Section 504 of the Rehabilitation Act of 1973 (“Section 504”).
This guidance does not provide any substantive changes as to how schools are to address the needs of students with ADHD as it relates to Section 504, but rather it highlights common areas of weakness for schools to consider when identifying and evaluating a student for Section 504 eligibility.
If This Guidance Doesn’t Change Anything, Why Should Schools Care?
According to this Dear Colleague Letter, from 2011 through 2015, one out of every nine complaints received by the Department’s Office for Civil Rights (OCR) alleging discrimination on the basis of a disability involved allegations of discrimination against a student with ADHD/ADD. This guidance was issued by OCR to combat this statistic and address its concerns that students may be denied a free appropriate public education (“FAPE”) due to the failure to identify and evaluate students who need accommodations because of ADHD/ADD.
It is apparent by this guidance that OCR is looking much closer at discrimination claims involving students with ADHD/ADD, and that schools must be proactive to ensure that students are being properly identified, evaluated and, as appropriate, provided with legally compliant Section 504 plans.
More than ever, schools are being asked to go beyond their standard operating procedures with regard to Section 504. They are being challenged to ask the right questions, even where there may be an absence of information available or even an absence of any indication that a student may have an ADHD/ADD diagnosis.
OCR clarifies that an ADHD/ADD diagnosis alone may trigger the need for an evaluation to determine if the ADHD/ADD substantially limits that student in a major life activity. This is true even under circumstances where a student is achieving a high level of academic success. OCR also reminds schools that they may not consider the “ameliorative effects of mitigating measures when determining how an impairment impacts the major life activities under consideration.” This includes the ameliorative effects of any medications a student may take to address the symptoms of ADHD/ADD. What this means is that a student may have an ADHD diagnosis, take medication that manages the symptoms, AND be achieving a high level of academic success, but the school must still evaluate the student on the basis of the diagnosis alone.
OCR also addresses its concern that students with inattentive-type ADD, as opposed to hyperactive-impulsive type ADHD, are particularly at risk of being overlooked by schools in the 504 process since “such students are less likely to come to the attention of school district personnel because they are less likely to engage in impulsive or disruptive behavior.” These students present an even greater challenge to schools in the identification process.
Overall, this guidance indicates that, more than ever, schools must be on high alert. Schools must take steps to train their staff to ask the right questions, to share information with the appropriate people and to DOCUMENT both what it knows and what it does not know. This begins with asking the right information on enrollment documents and maintaining open communication with parents about what may be going on at home.
Impact on IDEA?
OCR has jurisdiction only over complaints involving Section 504 and Title II of the Americans with Disabilities Act of 1990, so this guidance addresses only those federal anti-discrimination laws and not the Individuals with Disabilities Education Act (“IDEA”). Although, this guidance does not reference specifically a school’s obligations under IDEA as it relates to ADHD/ADD, the information it provides must be universally considered with regard to both Section 504 and IDEA identification, evaluation, and qualification.
Bottom Line for Schools
This guidance serves as a very strong reminder for schools to review their 504 and IDEA policies and procedures and to consider updated staff training to reinforce their obligations to identify all students suspected of having a disability, even those who may not display obvious symptoms of ADHD/ADD. This is especially important for school nurses who often have access to relevant information, and must share that information with those responsible for implementation of Section 504 and IDEA.
If you have concerns as to the legal defensibility of your school’s 504 process and procedures, contact your legal counsel or an attorney in the special education law practice group at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. It is meant to be informational and does not constitute legal advice. John E. Freund, III, is our editor.
