Important developments regarding implementation of Section 504 of the Rehabilitation Act of 1973 which bear on issues regarding the education of students who have ADHD have been updated.
Parents have long complained of difficulty securing needed school services and other supports for their children who have ADHD. In July 2016, the U.S. Department of Education issued Guidance aimed at explaining how Section 504 of the Civil Rights Act should be implemented in order to prevent discrimination against students with ADHD. The full texts were issued as a “Dear Colleague Letter” and a “Resource Guide on Students with ADHD,” and they were distributed to every school in the U.S. that accepts federal funding.
We wish to recognize the tremendous efforts of CHADD’s Public Policy Committee, along with the Professional Advisory Board, without whose diligent efforts this would not have happened.
Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in programs or activities receiving Federal financial assistance, including school districts. A student with a disability is one who meets any of the following criteria:
§ …has a physical or mental impairment that substantially limits one or more major life activities;
§ …has a record of such an impairment; or
§ …is regarded as having such an impairment.
Following are the key point of the recent Guidance:
1. The new Guidance states that Section 504 requires school districts to appropriately and timely evaluate and identify students suspected of having ADHD to determine if they are “students with a disability” who need special education or related aids or services to meet their educational needs as well as nondisabled students’ needs are met.
2. The Guidance states that examples of a major life activity that could be substantially limited by ADHD include concentrating, reading, thinking, and other functions of the brain. Therefore, if an evaluation determines that a student has ADHD, that student has an impairment for purposes of Section 504. A student with a diagnosis of ADHD is presumed to be a student with a disability.
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 activities.
4. A determination that a student is ineligible under IDEA doesn't mean that they may not be eligible under Section 504.
5. Students whose academic performance is adequate to above average, 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.
6. Schools have an obligation to avoid discounting impact due to ability to hyper-focus for preferred tasks.
7. Use of Response to Intervention (RTI) programs should not interfere with access to 504 protections. Schools should neither rigidly adhere to the steps of RTI programs as a predicate for evaluation nor categorically require the collection of intervention data as a part of an evaluation.
8. 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. District cannot make a parent responsible for necessary elements or cost of evaluation.
9. School districts must avoid making decisions about evaluation or eligibility that reflect mistaken assumptions based on gender, race or ethnicity.
10. Extensive analysis is not required to determine if someone has a disability because schools must consider the presence of a disability broadly.
11. 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.