Recent Guidance from the U.S. Department of Education on Foster Youth and Homeless Students, Students with ADHD, and Positive Behavioral Interventions and Supports in IEPs (K-12)

The United States Department of Education (“ED”) had a busy summer, issuing four guidance letters relevant to K-12 school districts. Although ED’s guidance is technically “non-binding and does not create or impose new legal requirements,” ED treats its guidance as law for purposes of investigating complaints, and judges typically cite ED guidance favorably in cases interpreting Federal laws. Accordingly, our office recommends that you ensure the appropriate personnel have read the guidance, as school districts could be found to have violated law based on policies and legal interpretation stated in these documents.

LEGAL UPDATE

August 26, 2016

To:  Superintendents, Member School Districts (K-12)

From: Jennifer E. Nix, Assistant General Counsel

Subject:  Recent Guidance from the U.S. Department of Education on Foster Youth and Homeless Students, Students with ADHD, and Positive Behavioral Interventions and Supports in IEPs

Memo No. 27-2016

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The United States Department of Education (“ED”) had a busy summer, issuing four guidance letters relevant to K-12 school districts.  Although ED’s guidance is technically “non-binding and does not create or impose new legal requirements,” ED treats its guidance as law for purposes of investigating complaints, and judges typically cite ED guidance favorably in cases interpreting Federal laws.  Accordingly, our office recommends that you ensure the appropriate personnel have read the guidance, as school districts could be found to have violated law based on policies and legal interpretation stated in these documents.

Guidance on Foster and Homeless Students[1]

On June 23, 2016, ED and the U.S. Department of Health and Human Services released a joint guidance on the provisions for supporting youth in foster care in the Elementary and Secondary Education Act, as amended by the Every Student Succeeds Act (“ESSA”), and, on July 27, 2016, ED released guidance on the provisions for supporting homeless children and youths in the McKinney-Vento Homeless Assistance Act, as amended by the ESSA.  Both guidance documents are presented in a clear question and answer format that details the Federal requirements with regard to foster and homeless students.  Please remember that these documents do not encompass California-specific obligations to foster and homeless youth.  At the same times, ED also released several related Dear Colleague Letters and a “Fact Sheet” on supporting homeless students.

Guidance on Students with ADHD and Section 504[2]

On July 26, 2016, the ED’s Office of Civil Rights (“OCR”), issued a Dear Colleague Letter and Resource Guide on Students with ADHD and Section 504, as well as a document for parents titled: “Know Your Rights: Students with ADHD.”  The OCR has jurisdiction to enforce Section 504 of the Rehabilitation Act of 1973 (“Section 504”), but does not have the authority to enforce the Individuals with Disabilities Education Act (“IDEA”).  Because of that limitation, this OCR ADHD guidance is expressly limited to interpretation of school districts’ obligations under Section 504.  However, OCR interprets a school district’s responsibility to provide a free appropriate public education (“FAPE”) under Section 504 through review of similar responsibilities under IDEA.  Accordingly, it is recommended that the portions of the guidance related to identification and evaluation of students with ADHD be read by district staff as applicable to any student suspected of having ADHD, including those eligible or potentially eligible for IDEA special education services.

Several important statements in the ADHD guidance are:

1. OCR states that it will presume Section 504 eligibility for a student with an ADHD diagnosis:

Every type of ADHD affects the functioning of the parts of the brain related to thinking, concentrating, and planning.  A determination that a student has any type of ADHD, therefore, is a determination that a student has an impairment for purposes of meeting one of the prongs of Section 504’s definition of disability.[3]

[A] diagnosis of ADHD is evidence that a student may have a disability.  OCR will presume, unless there is evidence to the contrary,[4] that a student with a diagnosis of ADHD is substantially limited in one or more major life activities.  (Page 10).

2. OCR opines that “A specific diagnosis is not actually necessary if the school determines a student is substantially limited in a major life activity and that limitation is caused by a mental or physical impairment.”  (Page 23, fn.70).

3. OCR gives many examples of mitigating measures, which cannot be considered in determining whether a student has a disability under Section 504, to include medications, coping strategies, the school district’s intervention strategies and off-campus, school-related activities like extra time used to complete homework. (Pages 5, 17, 21).  OCR recommends involving parents in the evaluation process to determine what a student’s needs might be without mitigating measures.  (Page 21).

4. Regarding students performing well academically, OCR states that “school districts sometimes rely on a student’s average, or better-than-average, grade point average (GPA) and make inappropriate decisions.”  Students who perform well academically can still be eligible for services and accommodations under Section 504, as they might have needs in areas such as speech processing, attention, concentration and focus, or behavior.  (Page 12).  OCR reminds us that “[a] student with ADHD may perform a major life activity in a different condition, manner, or amount of time than a student without ADHD.”  (Page 22).

Positive Behavioral Interventions and Supports for IEP Students[5]

On August 1, 2016, ED, Office of Special Education and Rehabilitative Services (“OSERS”), issued a Dear Colleague Letter on supporting behavior of students with disabilities, including a second document titled: “A Summary for Stakeholders.”  In conjunction with this guidance, ED updated its school discipline webpage with relevant data and other information.[6]  The letter emphasizes that, although schools are permitted to use exclusionary discipline measures with regard to special education students, a “failure to consider and provide for needed behavioral supports through the IEP process is likely to result in a child not receiving a meaningful educational benefit or FAPE,” and “cautions that the use of short-term disciplinary removals from the current placement may indicate that a child’s IEP, or the implementation of the IEP does not appropriately address his or her behavioral needs.”  (Pages 3, 11-12). On Pages 9 and 10 of the letter, OSERS’ lists many circumstances that could result in a denial of FAPE based on a student’s need for behavioral supports, and, throughout the letter, indicates that IEP teams should be reviewing a special education student’s behavior needs during days one through ten of suspension.

 

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

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