ED Issues Guidance on School District Obligations to Students with ADHD Under Section 504 (July 26, 2016)

The U.S. Department of Education (“ED”) today issued a Dear Colleague Letter and Resource Guide on Students with ADHD Under Section 504 to provide guidance on the obligations school districts have to students with ADHD under Section 504 of the Rehabilitation Act of 1973.

ED began its guidance by noting that more children with attention-deficit/hyperactivity disorder (ADHD) are entitled to protections under Section 504 because the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and its parallel amendment of Section 504 expanded the scope of who constitutes an “individual with a disability” under these laws.

ED’s Office for Civil Rights (OCR) reportedly received more than 16,000 complaints in the previous five fiscal years (2011-2015) alleging discrimination against students in elementary and secondary education programs on the basis of disability. Of those complaints, approximately 2,000 alleged discrimination against students with ADHD. As a result of its enforcement activities, OCR found that some students with ADHD are never identified as needing an evaluation to determine if they have a disability and require special education or related aids and services. OCR also found that, in many instances, students with ADHD who are properly identified as having a disability do not receive the services they need.

In today’s Dear Colleague Letter, ED reminds school personnel of the following:

  • School districts must conduct individualized evaluations of students who, because of a known or suspected disability – including ADHD – need or are believed to need special education or related services.
  • If a school district believes a medical assessment is necessary to determine if a student has ADHD and needs special education and related services, his or her parents may not be required to pay for it.
  • School districts may not consider the positive effects of mitigating measures in determining whether a student has a disability under Section 504.
  • School districts must ensure that qualified students with disabilities receive appropriate services based on specific needs – not based on cost, stereotypes, or a generalized misunderstanding of disability.

ED also cautions that some school districts mistakenly believe that the major life activity of learning must be substantially limited for a student to be eligible for FAPE services under Section 504. While a student’s ability to learn may certainly be substantially limited by ADHD, that is not the only way a student could be considered to have a disability. A number of major life activities should be considered in determining if a student with ADHD has a disability within the meaning of Section 504, including – for example – thinking, reading, concentrating, or neurological or brain functions.

Links to the “Dear Colleague Letter and Resource Guide” and ED’s “Know Your Rights: Students with ADHD” fact sheet are included below for your convenience.

ED –DCL and Resource Guide: http://bit.ly/2arvjB8

ED – Know Your Rights: http://bit.ly/2ayKH0m

Please contact one of our attorneys at 630.313.4750 if you have any questions about this DCL and Resource Guide and their impact on school district policies, procedures, and practices.