With the Holiday Craziness Upon Us…ADHD Now Clearly Protected under 504 Plans

Burlington County Special Education Law FirmADHD Now Clearly Protected under 504 Plans

In the midst of the holidays, children and families managing ADHD are handling lots of stimulation.  If you already have an IEP or 504 plan in place to help your child manage in school, we truly hope it is working for you!  If not, the ruling noted below offers additional clarification of the obligations of school districts.  If you have any questions, please feel free to contact us.

On July 26, 2016, the United States Department of Education’s Office of Civil Rights (OCR) clarified the federal obligations of school districts under Section 504 of the Rehabilitation Act of 1973 (Section 504)  to students with Attention Deficient-Hyperactivity Disorder (ADHD). The clarification relates to elementary and high school students in school districts receiving Federal financial assistance. Section 504, and its implementing regulations, prohibit discrimination on the basis of disability and requires school districts to provide an equal educational opportunity to such students. The American with Disabilities Act Amendments Act of 2008 (ADA), broadened the scope and definition of “disability” for both the ADA and Section 504 so that more students with ADHD are now clearly entitled to Section 504 protections—recognizing concentrating, reading, thinking and functions of the brain as major life activities impaired by disability.

The OCR clarification on ADHD comes after five years of the OCR receiving complaints of discrimination against students with ADHD. In resolving complaints, the OCR found that while many teachers/administrators take appropriate action to ensure that students with ADHD receive the protections to which they are entitled under Federal law, many are not familiar with the ADHD or how it could impact a student’s equal access to a school district program. The OCR found that students with ADHD are still experiencing academic and behavioral challenges in the educational setting. It was these findings that prompted the OCR to conclude that policy guidance is needed to ensure that these students are receiving a free appropriate public education (FAPE) under the civil rights requirements of Section 504.

The OCR investigations indicated that students with ADHD could be denied FAPE under Section 504 because of school district failure to refer or identify the need for evaluations and untimely or inadequate evaluations of students. It also found that even if properly identified, because of school district misunderstanding of ADHD and the requirements of Section 504, students with ADHD are not always receiving required services.

Through its enforcement efforts, the OCR has seen that school districts fail to meet their Section 504 obligations by:

  • making inappropriate decisions about the regular or special education, related aids and services, or supplementary aids and services the students need;
  •  making inappropriate decisions about the appropriate setting in which to receive those services because of a misunderstanding of ADHD and the requirements of Section 504
  •  failing to distribute relevant documentation to appropriate staff, or
  • considering inappropriate administrative and financial burdens in selecting and providing appropriate related aids and services.

As part of its ADHD guidelines, the OCR clarified that even if a student is evaluated for services under the Individuals with Disabilities in Education Act (IDEA) and is found ineligible because the student does not need special education and related services because of the disability, the school district must still consider if the student could be covered by Section 504. To do this, the school district must determine whether or not the student has a disability for which he/she might need regular education and related aids and services in order to receive FAPE under Section 504.

Specifically in regard to students with ADHD, the OCR guidance provides that school districts are obligated to identify and evaluate:

  •  Students who are easily distracted or unfocused because such students may be manifesting an unaddressed ADHD, indicating the need for behavioral and executive function supports to improve focus and organizational skills;
  •  Students presenting with ADHD and depression because these students may have additional or different needs that only an appropriate evaluation can determine;
  • Students suspected of having or diagnosed as having ADHD even if such students present with a high level of academic success or above-average GPA because these students may still be substantially limited in a major life activity due to their impairment because of the additional time or effort they must spend to read, write, learn, plan, begin, or complete school work compared to others.
  • Students with inattentive-type ADHD, even when these students do not engage in impulsive or disruptive behaviors, because the functional limitations often include those pertaining to starting a task, organization, or recalling information that present them with overwhelming challenges to learning.

The OCR guidelines also provide that intervention strategies for ADHD must not deny or delay evaluation of ADHD students.

For more information about the specific ADHD guidelines for identifying, evaluating, and making placement determinations for students with ADHD under Section 504 and as set forth by the OCR, contact the Special Education Law Team at McDowell, Posternock, Apell and Detrick, P.C. Learn more about our services here.