On July 26, 2016, the United States Department of Education’s Office for Civil Rights (OCR) published a Dear Colleague letter and Resource Guide to ensure that students with attention-deficit/hyperactivity disorder (ADHD) were receiving a Free Appropriate Public Education (FAPE). OCR wrote the letter in response to concerns that school districts were not properly identifying, evaluating, and meeting the needs of students with ADHD. You can read the entire letter and guide here.
OCR reminded districts that because of the Americans with Disabilities Amendments Act of 2008 (Amendments Act), more students with ADHD are entitled to protections under section 504. This is because the Amendments Act required a broad definition of disability; expanded the list of major life activities to include concentrating, reading, thinking and functions of the brain; and prohibited the consideration of the ameliorative effects of medication when evaluating whether a student has a disability. You can read more about those changes here.
OCR warned that school districts should not assume that a student’s academic success necessarily means that the student does not have a disability. If a student was receiving good grade, but spent an extraordinary amount of time studying, required extra help at home to complete assignments and/or needed extra time to finish exams, this student may in fact have a disability and these mitigating measures would in fact serve as evidence of the disability-related need. OCR reminded districts that an academically gifted student may still require specific and explicit instruction in order to reliably record homework assignments, organize information into class notes, state a multi-stage project, write more efficiently, or respond to challenges relating to attention and concentration.
Another interesting aspect of the guidance is the reminder that in order to evaluate a student with suspected ADHD, the school district may need to provide a medical assessment of the student (with parental consent) at no cost to the parents. In other words, the district cannot deny services because a student has not been diagnosed with ADHD by a medical doctor. If that evaluation is required, the district must propose and provide it.
Finally, OCR wrote that they “cannot overemphasize” the importance of ensuring that a 504 Plan or IEP is actually implemented. OCR explained this failure occurs most in two different scenarios: first, teachers and other staff are completely unaware that a plan exists; or, the plan is so vaguely worded that the parties are unclear or disagree about what the plan requires. In my years of experience as a lawyer representing students with ADHD, I have to agree that these failures are pervasive and often result in a denial of FAPE.
If your child has ADHD and you are concerned about their educational progress, contact the North Shore Massachusetts and Boston area offices of Wong & Boscarine for an initial consultation.
