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New ADHD Guidance for Schools.  Are you in compliance?
By Andrew W. Li, Brett E. J. Gorman on August 23, 2016

As you may be aware, the United States Department of Education (hereinafter "USDOE") recently issued guidance related to the educational treatment of students with Attention Deficit and Hyperactivity Disorder (hereinafter "ADHD"). The USDOE reiterated that school districts have an obligation to appropriately evaluate and program for this disability and its impact in the classroom.

Below are the bullet point summaries that were presented by the USDOE. Click here for a full copy of the guidance. While many of the bullet points are duplicative of what you already implement, we recommend that you review these bullet points and the guidance to ensure that your district is operating in accordance with the law. Thank you and please do not hesitate to contact us with any questions or concerns.

  • Section 504 requires a school district to identify and conduct an evaluation of any student who needs or is believed to need special education or related services because of a disability.
  • A school district must evaluate students who are suspected of having any kind of disability in all specific or all related areas of educational need, even if the students do not fit into one suspected disability category or fit into multiple disability categories.
  • Students who achieve satisfactory, or even demonstrate above-average, academic performance may still have a disability that substantially limits a major life activity and be eligible for special education or related aids and services because the school district is not meeting their needs as adequately as the needs of nondisabled students are met. 
  • Implementation of intervention strategies, such as interventions contained within a school's RTI program, must not be used to delay or deny the Section 504 evaluation of a student suspected of having a disability and needing regular or special education and related aids and services as a result of that disability. 
  • In determining if a student has a disability and needs special education or related services because of disability, school districts must consider all the potential major life activities that may be impacted by the student's impairment, not just learning, and review facts concerning the condition, manner, or duration of a student's performance of a major life activity.
  • Never act on stereotypes and generalizations about students with ADHD. For example:
    • Monitor both male and female students carefully for ADHD, without relying on sex-based stereotypes.
    • Monitor students of all races carefully for ADHD, without relying on race-based stereotypes. Race could influence how a school perceives student behavior and thereby affect whether a student is evaluated for ADHD.
  • School districts must interpret the term disability broadly and cannot consider the positive effects of mitigating measures in evaluating for disability.
  • If the school district believes that a medical assessment is necessary to determine whether the student has ADHD and needs special education or related aids and services because of the ADHD, the student's parents cannot be required to pay for it.
  • Evaluate and provide supports for students with ADHD. Students who are evaluated properly and receive appropriate supports will often meet the challenge of school, including advanced course placement and honors classes. 
  • School districts must tailor services to the individual needs of the student, and must not limit placement options under Section 504 for students with disabilities to a predetermined universe of options that are unrelated to an individual determination of what particular students need, or because the school district already offers certain options.
  • Students with ADHD who are eligible for FAPE under Section 504 are entitled to the provision of services the placement team decides are appropriate, regardless of cost or administrative burden, and especially where such services have been provided to IDEA eligible students in the past.
  • The special education or related aids and services a student needs that are included in a Section 504 Plan, or other document, should be clear and as detailed as necessary so that that the school and parents both understand what the plan requires.
  • Parents may appeal district actions regarding the identification, evaluation, or educational placement of students with disabilities who need or are believed to need special education or related services. 
  • A school district that denies a parent's request for a Section 504 evaluation of a student, regardless of the grounds for the denial, must inform the student's parent of its decision and of the parent's procedural safeguard rights, as set forth in the Section 504 regulations. 
  • School districts must ensure they provide notice of a parent's due process protections.
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