On October 21, 2014, United States Assistant Secretary Catherine Lhamon issued another Dear Colleague Letter on the topic of bullying of students with disabilities.  This is the fourth letter from the Office of Special Education and Rehabilitative Services (OSERS) or the Office of Civil Rights (OCR) on harassment and bullying since 2000.  In this latest letter, OCR states that it will utilize a FAPE-based approach to investigating bullying complaints.  This guidance clarifies that the focus will be on the effect of bullying on the student with a disability protected by a Section 504 plan, not on why it happened.  Historically, parents had to prove that their child was bullied because of his or her disability.  Last year, OSERS said that no such connection is necessary to prove a denial of FAPE.  OCR is now following suit.

The primary lesson for school districts is that they cannot be passive when their students identified with 504 plans show any signs of distress.  School officials must respond if they notice a child’s behavior or academic performance beginning to decline even if they are not yet aware of a bullying claim.  School districts have an ongoing obligation under Section 504 to ensure that a student with a disability is receiving an education appropriate to her needs.

Although this may seem over reaching to school districts, the bottom line is that the problem of bullying has been increasing, rather than decreasing, particularly for students with disabilities.  Thus, OCR, along with OSERS, has decided to attack the problem on multiple fronts: with FAPE-based complaints, along with the traditional disability-based approach.  The letter explains that OCR will continue to investigate disability-based harassment along with FAPE violations. Now, as part of a school’s appropriate response to bullying on any basis, the school should convene the 504 team to determine whether and to what extent the student’s needs have changed as a result of the effects of the bullying, whether the bullying impacted the student’s receipt of FAPE services, and any additional or different services which may be needed.

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