Daily Archives: September 2, 2016

The Feds Have Been Busy! Several Guidance Documents Issued on Obligations to Students with ADHD and Behavioral Supports to Students with Disabilities.

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Author: Heather Edwards, Attorney at Law

On July 26, 2016, the Office of Civil Rights (“OCR”) issued guidance on local educational agencies’ obligations to students with attention deficit hyperactivity disorder (“ADHD”). Dear Colleague Letter and Resource Guide (68 IDELR 52). OCR explained that 1 in 9 OCR complaints involve allegations of discrimination against a student with ADHD. Most problems relate to not adequately evaluating students with ADHD in a timely manner. The new guidance provides valuable reminders to share with local educational agency staff including the following tips:

  • Students who perform well academically can still be eligible under Section 504.
  • OCR presumes eligibility with ADHD diagnosis under Section 504.
  • Medical assessments are not required.
  • RTI, PBIS, or other general education interventions cannot delay an evaluation.
  • Providing informal accommodations without conducting an evaluation is not enough to satisfy obligations under Section 504.

The guidance letter is available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201607-504-adhd.pdf

Also, on August 1, 2016, the Office of Special Education and Rehabilitative Services (“OSERS”) issued guidance on behavioral supports to students with disabilities. Dear Colleague Letter, 116 LRP 33108. OSERS explained that recent data on short-term disciplinary removals (10 school days or less in a school year) suggest that children with disabilities may not be receiving appropriate behavioral interventions/supports in their IEPs. Specifically, the evidence shows that 10% of all children with disabilities were subject to a short-term removal, with children of color with disabilities facing higher rates of removal (e.g., 19% of black children with disabilities were subject to a removal of 10 school days or less within a single school year).  The new guidance is intended to clarify schools’ obligation to provide appropriate behavioral supports to children with disabilities who require such supports in order to receive FAPE. Specifically, in many cases, a student’s misbehavior and resulting discipline triggers the IEP team to consider providing positive behavioral interventions or change the ones that it’s already providing. The guidance also clarifies that schools’ impression of 10 “free” days in which to discipline a student should not discourage schools from addressing whether a student needs behavioral supports to receive FAPE.

The new guidance also provides the following specific examples of circumstances that could lead to denials of FAPE for a student with disabilities:

  • IEP did not consider inclusion of positive behavior interventions and supports in response to behavior that impedes child’s learning or that of others.
  • School failed to convene IEP team meeting to address behavioral concerns.
  • IEP team failed to discuss parent’s concerns about child’s behavior and its effects on learning during an IEP team meeting.
  • Lack of behavioral supports documented in the IEP even when deemed necessary.
  • Inappropriate behavioral supports in the IEP.
  • Appropriate behavioral supports in IEP not being implemented or not being properly implemented (e.g., teachers not adequately trained on implementation).
  • School staff implementation of behavioral supports not included in IEP that are not appropriate for the child.
  • Cautioned against inappropriate use of exclusionary disciplinary measures that would constitute a disciplinary removal if implemented repeatedly. (Example: regularly requiring a child with a disability to leave school early and miss instructional time due to their behavior).

The following link provides two resource documents to assist teachers and school leaders with classroom management strategies and assist schools in implementing schoolwide behavioral efforts. http://www2.ed.gov/policy/gen/guid/school-discipline/files/dcl-on-pbis-in-ieps–08-01-2016.pdf