On July 26, 2016, the U.S. Department of Education’s Office for Civil Rights (“OCR”) issued guidance clarifying the obligation of schools to provide students with Attention-Deficit/Hyperactivity Disorder (“ADHD”) with equal educational opportunity under Section 504 of the Rehabilitation Act of 1973 (“Section 504”). Due to amendments to the Americans with Disabilities Act (“ADA”) which have clarified the broad scope and definition of the term “disability,” more students with ADHD “are now clearly entitled to the protections under Section 504.” One in nine complaints to the OCR alleging discrimination on the basis of disability are related to ADHD. The OCR has found that many teachers and administrators are not familiar with ADHD and its potential impact on a student’s equal access to education. This “Dear Colleague Letter” is chock full of useful information that parents need to know to effectively advocate for their children; too much to include in one Post. For the next several Blog Entries, we will focus specifically on ADHD and how it is addressed by the Individuals with Disabilities Education Act (“IDEA”) and Section 504. You may want to skip the next paragraph if you are not interested in some of the technical jargon.
A little background is necessary to understand the impact of these “clarifications.” The OCR’s purpose is to enforce Federal laws protecting the rights of students facing discrimination on the bases of race, color, national origin, sex, age, and disability. The OCR has the power to resolve complaints and conduct compliance reviews regarding disability discrimination under: (1) Section 504; and (2) Title II of the ADA. For clarification, the OCR does not administer or enforce the IDEA. The Office of Special Education Programs (“OSEP”), which is in the Department’s Office of Special Education and Rehabilitative Services (“OSERS”), does.
For the purposes of Section 504 and Title II, a student is considered to have a disability if he has “a physical or mental impairment that substantially limits one or more major life activities.” As a general rule for all disabilities, school districts cannot consider the ameliorative effects such as medications, coping strategies, and program modifications when determining whether and how an impairment impacts a major life activity. Major life activities, specifically in regards to ADHD, include concentrating, reading, thinking, and functions of the brain.
The Dear Colleague Letter goes on to say that, “In general, students with ADHD may be eligible for special education and related services under the IDEA” if they meet the requirements of one or more specific disability categories and if they need special education and related services because of their disability. A student may be eligible under the category of “other health impairment” (“OHI”) if the student has “limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli that results in limited alertness with respect to the educational environment due to chronic or acute health problems that adversely affects the student’s educational performance.” However, children with ADHD may also be eligible for services under the categories of “specific learning disability” or “emotional disturbance” if they meet the required criteria.
Parents should take note that a school district may still be obligated to evaluate students under Section 504 even if the child with ADHD is determined to be ineligible for special education under the IDEA. It may still be necessary to determine whether the student has a disability which may require regular education and related aids and services in order to receive a Free Appropriate Public Education (“FAPE”) under Section 504.
Once it is determined that a student has any type of ADHD (there are three recognized subcategories), the child has met the Section 504 definition of disability. This is because the OCR considers ADHD to automatically be an impairment and, absent evidence to the contrary, it assumes it substantially limits one or more major life activities. “Child Find,” as the obligation of Districts to identify, locate, and evaluate students who are believed to need special education or related services is known, requires the District to evaluate students whom district staff perceive or receive information that leads them to suspect that a student has a disability. Such red flags include:
considerable restlessness or inattention inappropriate for their age and grade level;
trouble organizing tasks and activities;
or communication or social skill deficits.
Remember, the District must evaluate the student if it believes a student needs special education or related services as a result of her disability, EVEN IF THE STUDENT ONLY EXHIBITS BEHAVIORAL (AND NOT ACADEMIC) CHALLENGES. This is so important. Time and time again, School Districts will argue that the student is doing fine academically. That is not the question (at least not the only one) to be asked. The Dear Colleague Letter gives other examples, which are quite expansive actually, of potential red flags. Students with a high number of discipline referrals for incidents such as disruptions in class may also be students with disabilities in need of services.
“Some students, due to their unaddressed disability related
needs, may engage in behaviors that do not conform to school
codes of conduct.”
Ultimately, the OCR states that a District’s obligation to evaluate under Section 504 could be triggered if there are indications that the student’s behavior is “out of the expected range of behaviors of students that age.”
In my next Blog Post, we will discuss some other potential Red Flags and strategies parents can use to counter District arguments against providing services.
If you have specific questions, feel free to contact me.