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Office for Civil Rights Releases
New Dear Colleague Letter Strengthening Rights of Students with ADHD Under Section 504

By Matthew D. Cohen, J.D.

Copyright © 2016 by Special Education E-News, Matt Cohen & Associates LLC
and reprinted here with permission

September 2016

Finding serious concerns with the provision of equal opportunity to students with ADHD, the US  Department of Education Office for Civil Rights issued a Dear Colleague Letter to State Departments of Education and School Districts on July 26, 2016 clarifying and substantially strengthening the rights of children with AD/HD under Section 504.  While some of the points in the Guidance had been previously stated, the Letter for the first time brought many of the policy issues together and added stronger positions across many issues concerning students with ADHD, including: 

1. Districts must appropriately and timely evaluate and identify students suspected of having AD/HD.
 
2. Districts must document and provide appropriate placement and services, regardless of cost. Section 504 requires more than just accommodations if needed for the students’ needs to be addressed.
 
3. Mitigating measures, such as medication, extra tutoring or unusual effort are not a basis for exclusion from eligibility if the student's disability still substantially limits one or more major life activity.
 
4. A determination that a student is ineligible under IDEA doesn't mean that they may not be eligible under Section 504.
 
5. Diagnosis of ADHD means the student has an impairment for purposes of 504 and creates presumption of substantial limitation of major life activity.
 
6. Students that are high performing academically, but are impacted by their AD/HD in other ways and/or have behavioral or social problems without specific academic difficulty, may still be eligible for 504 protection. Referral should occur for behavior even if not related to academics. Students with AD/HD may also be eligible due to problematic behavior such as not turning in homework or talking out of turn even if their grades are adequate.
 
7. Schools have an obligation to evaluate inattentive type students and take into account extra parent effort and avoid discounting impact due to ability to hyper-focus for preferred tasks.

 8. Use of RTI programs should not interfere with access to 504 protections. Schools should neither rigidly adhere to the steps of Response to Intervention programs as a predicate for evaluation nor categorically require the collection of intervention data as a part of an evaluation.

 9. District cannot make parent responsible for necessary elements or cost of evaluation.
 
10. School districts must avoid making decisions about evaluation or eligibility based on mistaken assumptions based on gender, race or ethnicity.
 
11. School districts may NOT deny eligibility based on the absence of substantial impairment without considering the effect of mitigating measures, such as medication or extra effort on homework and must evaluate the impact of the impairment in an unmitigated state.
 
12. A medical assessment is not required in order to identify a student as having ADHD for purposes of 504 eligibility, but if a school district decides it is necessary, it must be provided at no cost to the parent. Further, extensive analysis is not required to determine someone has a disability because schools must consider the presence of a disability broadly

13. 504 services are not and should not be limited to services that are free or low cost to the district and can include services that are also provided under idea, such as special education or related services, if such services are necessary to receive an appropriate education under section 504.

CHADD (Children and Adults with Attention Deficit/Hyperactivity Disorder) provided significant input into OCR's consideration of these issues in the development of the Guidance Document. As a member of the CHADD Public Policy Committee, I am pleased to have been able to take part in this important effort.  The July 26 Guidance Document can be found at: http://www2.ed.gov/about/offices/list/ocr/letters/ colleague-201607-504-adhd.pdf.

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