According to Federal Statutes, children with ADHD are covered by three federal statutes: the Individuals with Disabilities Education Act, Part B (IDEA); Section 504 of the Rehabilitation Act of 1973; and the Americans with Disabilities Act of 1990 (ADA). The U. S. Department of Education has the legal authority to interpret and enforce IDEA, and the Office of Civil Rights in the Department of Education interprets and enforces the provisions of Section 504 and ADA that pertain to education. To clear up confusion regarding services to children with ADHD under provisions of IDEA and Section 504, the Department of Education issued a Policy Clarification Memorandum in 1991 that defines schools' legal obligation to locate, identify, and evaluate children suspected of having this disability, and also to provide a free appropriate education and needed services for those who are eligible. To be eligible under Part B of IDEA, "a child must be evaluated as having one or more specified physical or mental impairments, and must be found to require special education and related services by reason of these impairments."2 in other words, a diagnosis of ADHD is not enough to qualify a child for special education services--the ADHD must impair the child's ability to benefit from education.
The memorandum specifies that children with ADHD may be eligible for special education services under three categories defined by IDEA: (1) other health impaired, (2) specific learning disability, and (3) seriously emotionally disturbed.
Other health impaired: The memorandum from the Department of Education states: "Children with ADD should be classified as eligible for services under the other health impaired category' in instances where the ADD is a chronic or acute problem that results in limited alertness, which adversely affects educational performance." Children may receive services "solely on the basis of this disorder," without having to also qualify under other categories, if the ADHD is severe enough to cause educational impairment.
Specific learning disability: Children with ADHD may qualify for special education in this category if they have coexisting specific learning disabilities, although, in some cases, ADHD alone may cause a child to meet the criteria for this category. In defining specific learning disabilities, federal statutory language includes the term "minimal brain dysfunction," which is an earlier name for ADHD.
Seriously emotionally disturbed: Children with ADHD sometimes have co-existing emotional problems such as Oppositional Defiant Disorder, Depression, Conduct disorder or an Anxiety disorder that qualify them for special education services. To be eligible under this category for ADHD alone, a child must exhibit one or more of the following characteristics "over a long period of time and to a marked degree, which adversely affect educational performance": an unexplained inability to learn, unsatisfactory personal relationships with teachers and peers, inappropriate behavior and feelings, general depression, and physical symptoms or fears resulting from personal or school problems. Part B of IDEA requires schools to find children with ADHD, to evaluate their unique educational needs with a multidisciplinary team that includes a teacher and a specialist in the area of suspected disability, and to provide eligible disabled students a free appropriate public education--including special education and related services--in accordance with an individualized education program (IEP) designed specifically for each child.
Section 504
Children may qualify for services to the handicapped under Section 504 of the Rehabilitation Act of 1973 if their ADHD substantially limits a major life activity, such as learning. Section 504 prohibits programs that receive federal dollars from discriminating against individuals with disabilities. It requires public schools to make accommodations for eligible handicapped children, whether or not they qualify for special education services under IDEA. Section 504 could therefore provide modifications for children with ADHD in regular classrooms, such as help with note taking and changes in assignments and testing procedures
Implementing Legal Requirements
To meet legal requirements, schools must (1) identify and provide services for eligible children with ADHD needing special education; (2) educate children with ADHD with nondisabled children to the extent possible; (3) eliminate practices and policies that allow disabled children to be suspended or expelled for more than 10 days for behavior associated with their disability, or deny education services during any suspension or expulsion; and (4) follow the procedural safeguards outlined in IDEA.
Identifying and providing services for disabled children. Identifying and providing services for eligible children with ADHD requires specialized knowledge in many areas. To be able to provide an appropriate education to all disabled children, LEAs and educators first must know that children with ADHD whose education is adversely affected by the disorder may be eligible for services under IDEA or Section 504.
Because teachers play a major role in identification, they must be able to recognize ADHD's symptoms, and know school procedures for referral and evaluation. Evaluators should make sure that evaluation is free of racial, cultural, and gender bias. Teachers must know school policies for administering the medications that are sometimes part of ADHD's multimodal treatment, how to monitor the effects of medication, and how to report effects to supervisors, parents, and professionals. Finally, teachers must know a variety of academic and behavioral strategies to help children with ADHD succeed in the classroom.
Suspending and expelling disabled children. Schools that suspend or expel students with ADHD for more than 10 days for behavior associated with their disability, or stop education services during any suspension or expulsion, may be putting their LEAs and SEAs at risk of litigation for failure to provide an appropriate public education. This is important information for school disciplinary officers, since children with ADHD frequently exhibit disruptive, oppositional, or defiant behavior, and have been found to have high rates of suspension and expulsion.
The U. S. Supreme Court, in Honig v. Doe, ruled that IDEA prohibits state or local authorities from excluding disabled children from the classroom for disruptive or even dangerous behavior associated with their disabilities. In this ruling, the Court supported Congress's intent "to strip schools of the authority to disclude disabled students," particularly students who are emotionally disturbed.
The Office of Special Education Programs in the U. S. Department of Education has alerted schools that "repeated discipline problems may indicate that the services being provided to a particular child should be reviewed or changed," and suggests that in school techniques be included in the IEP to address behavior related to the disability.5 A separate disciplinary or behavior plan in the IEP or Section 504 plan can make life easier for both the student with ADHD-associated behavior problems and the school. An effective plan should stress prevention and include alternatives to out-of-school suspension and expulsion. For instance, an analysis of a child's behavior pattern might show that most incidents occur during unstructured school time, such as recess, changing classes, assemblies, or lunch. Preventative strategies in this case might include assigning constructive activities to keep the child busy and occupied, such as lunchroom responsibilities or office work; seating the child near the teacher during assemblies; or escorting the child to classes. Closer monitoring of the child during free time may be needed, accompanied by frequent positive feedback for acceptable behavior. Alternatives to out-of-school suspension might include after-school detention, community service, or service to the school.
Because children with ADHD are generally unresponsive to reinforcements and punishment, consequences for unacceptable behavior need to be immediate, related to the offense, and nonpunitive. Also, since children with ADHD are unable to generalize behavior learned in one situation to other situations, the IEP should target specific behaviors for the particular situations the child encounters during the school day.
Children with ADHD need to be taught that they are accountable for their behavior, but punishment for behavior beyond the child's control is both unhelpful and inappropriate. As Accardo15 says so well:
The first thing to accept about a child who has ADHD is that this child's brain functions differently. We won't be able to change how the brain functions, so we must modify our expectations. This does not mean lowering expectations; it does mean making allowances.
Following procedures. IDEA is heavily procedural and includes safeguards to ensure parental participation. School districts must provide written notice to parents before identifying, evaluating, or placing children, or changing an identification, evaluation, or placement. Similar notice must accompany any change in the provision of an appropriate public education for a child. Both parents and schools can initiate due process to evaluate differences in evaluation or placement. The failure of an education agency to follow the procedures set forth in IDEA, such as parent notification or due process, is sufficient reason to rule that a disabled child has been denied an appropriate public education.5
About the Law
While the Federal law is supreme and state statutes and regulations may vary from one jurisdiction to another, all states must provide at least the same Federal rights to all handicapped/disabled children.
Some state laws may provide for better services and more rights than the Federal statutes and regulations. Some local and state laws, regulations and case law may provide for very short statutes of limitations, may limit rights, and may require clear NOTICE from parents to school officials regarding areas of disagreement.
The public policy of the State of North Carolina regarding special education is:
The General Assembly of the State of North Carolina hereby declares that the policy of the State is to ensure every child a fair and full opportunity to reach his full potential and that no child as defined in this section and in G.S. 115C-122 shall be excluded from services or education for any reason whatsoever.
The policy of the State is to provide a free appropriate public supported education to every child with special needs. (emphasis added) G.S. 115C406
North Carolina statutory and case law require that special education must ensure that "the child has an opportunity to reach [his] full potential." Burke County Bd. of Educ. V. Denton, 895 F .2d 973, 983 (4th Cir. 1990)
8. The Individuals with Disabilities Education Act (IDEA) creates only a federal minimum and States may structure educational programs, which exceed the federal floor. IDEA, 20 U.S.C.A. Sec 1400-1485.
9. North Carolina chose to exceed the federal benchmark and measure each child "against his or her own expected performance." In re Felton Letter, 23 IDELR 714, 717. (OSEP 1995
15. The mere facts that Child A received passing marks and was promoted from grade to grade is not dispositive in determining whether he received FAPE according to the United States Supreme Court. Board of Education v. Rowley, 458 U.S. 176, 203 at n. 25, 102 S.Ct. 30334, 3049 n. 25 (1982) ("We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school is automatically receiving a "free appropriate public education.").
What this all means to you and your child is:
Bryan is a 7 yr old boy in first grade who has been diagnosed with Severe ADHD combined and Oppositional Defiant Disorder. The symptoms of this disorder have a negative impact on his ability to learn up to his full potential. The State of North Carolina CHOSE to exceed the federal benchmarks and the case law states that every child has the opportunity to reach his full potential and must measure each child against his own expected performance. Just because Bryan is advancing from grade to grade does not mean he is reaching his full potential. The fact that Bryan is disruptive and has needed several suspensions prove this point. The law also has to take into consideration Bryanâs disability and how it effects him in all aspects of his life such as in the home, school and the community. Because of the repeated disciplinary measures that have been implemented with Bryan, federal law mandates that the school reviews the services being provided to him and make any needed changes. The repeated suspensions show that this child is in need of services.
What you need to do:
1. Write a Parent Report.
2. Keep copies of all psychological evaluations, tests, reports, and letters to the schools, etc. in a loose-leaf notebook. Keep them in chronological order.
3. Always follow up any conversations with anyone about your child with a letter sent certified.
4. Make sure you keep copies of anything you sign in reference to your child.
5. Make sure you have a dated copy of the request for evaluation.
Sorry this is so long...but I wanted to make sure you got it...and thought others mite be interested to. I will also email it.
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Janet L.
3 boys
14 yr old difficult child, bipolar with moderate mania and psychosis and Conduct Disorder. On 1500 mg depakote a day and 5 mgs Zyprexa, currently in Hi risk group home for Violent and Assaultive Youth.
16 yr old, ADHD-doing ok
19 yr old, AG but Learning Disability (LD), easy child
Be nice to your kids...they will pick out your nursing home...
