FCSN // Newsletter // 2016 // Summer 2016 // Education Department Releases Guidance on Rights of Students with ADHD
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Education Department Releases Guidance on Rights of Students with ADHD

On July 26, 2016, the U.S. Department of Education Office for Civil Rights issued guidance clarifying the obligation of schools to provide students with attention deficit hyperactivity disorder (ADHD) with equal educational rights under Section 504 of the Rehabilitation Act of 1973. Section 504 requires schools to provide a free appropriate public education(FAPE) to each qualified student with a disability. Visit Disability.gov to learn more about the rights of students with disabilities. The Following is a letter written by Catherine E. Lhamon, Assistant Secretary for Civil Rights:

“I write this letter to clarify and provide guidance on the Federal obligations of school districts that receive Federal financial assistance from the U.S. Department of Education (the Department) to students with attention-deficit/hyperactivity disorder (ADHD)1 under Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Department’s implementing regulations. This Federal law prohibits discrimination on the basis of disability and requires school districts to provide an equal educational opportunity to students with disabilities. Because the Americans with Disabilities Act Amendments Act (Amendments Act) clarified the broad scope and definition of the term “disability,” more students with ADHD are now clearly entitled to the protections under Section 504.

Over the past five fiscal years (2011-2015), the Department’s Office for Civil Rights (OCR) has received more than 16,000 complaints alleging discrimination on the basis of disability in elementary and secondary education programs. Approximately 2,000, or one in nine, of these complaints involved allegations of discrimination against a student with ADHD. In resolving such complaints, OCR has found that many teachers and administrators often take appropriate action to ensure that students with ADHD receive the protections to which they are entitled under Federal law, but many others are not familiar with this disorder, or how it could impact a student’s equal access to a school district’s program.

Through our enforcement efforts, we have learned that many students with ADHD are still experiencing academic and behavioral challenges in the educational setting, and that policy guidance is needed to ensure that those students are receiving a free appropriate public education (FAPE) as defined in the Department’s regulations implementing Section 504. OCR investigations have revealed that students with ADHD could be denied FAPE because of problems that school districts have in identifying and evaluating students who need special education or related services because of ADHD.

Some of these problems are as follows:
• students never being referred for, or identified by the school district as needing, an evaluation to determine whether the student has a disability and needs special education or related services;
• students not being evaluated in a timely manner once identified as needing an evaluation; or
• school districts conducting inadequate evaluations of students. In addition, even if properly identified, a student with ADHD who is determined to have a disability may not always receive required services.

OCR, through its enforcement efforts, has observed that school districts fail to meet their Section 504 obligations when they:
• make inappropriate decisions about the regular or special education, related aids and services, or supplementary aids and services the student needs, and the appropriate setting in which to receive those services based on a misunderstanding of ADHD and the requirements of Section 504; fail to distribute relevant documentation to appropriate staff; or
• consider inappropriate administrative and financial burdens in selecting and providing appropriate related aids and services. The failure to provide needed services to students with disabilities can result in serious social, emotional, and educational harm to the students involved. It can also unnecessarily drain school district and family resources if the school is ineffectually attempting to meet the needs of students with disabilities through failed interventions or disciplinary consequences.

As outlined in the Department’s regulations implementing Section 504, school districts must conduct individualized evaluations of students who, because of disability, including ADHD, need or are believed to need special education or related services, and must ensure that qualified students with disabilities receive appropriate services that are based on specific needs, not cost, and not based on stereotypes or generalized misunderstanding of a disability.

These and other Section 504 obligations apply to all students with disabilities and are discussed in this guidance as they specifically pertain to students with ADHD. Through this letter and the accompanying Resource Guide, OCR seeks to help educators, families, students, and other stakeholders better understand these laws as they pertain to students with ADHD in elementary and secondary schools in order to ensure that these students receive the regular or special education, related aids and services, or supplementary aids and services the student needs to be successful.

I encourage you to use this information to ensure that your school district is properly evaluating and providing timely and appropriate services to students with ADHD.

Sincerely,

Catherine E. Lhamon Assistant Secretary for Civil Rights