ADHDFamilies

Children and Adults with Attention-Deficit/Hyperactivity Disorder

Two federal laws - the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504), guarantee children with attention-deficit/hyperactivity disorder (AD/HD) a free and appropriate public education (F APE). Both laws also require that children with disabilities be educated to the maximum extent appropriate with children who do not have disabilities. Because there are different criteria for eligibility, different services available, different procedures for implementing the laws, and different procedural safeguards, it is important for parents, educators, clinicians and advocates to be well aware of the variations between these laws and to be fully informed about their respective advantages and disadvantages.

Perhaps the most substantial difference between these two laws is that eligibility for IDEA mandates that a child have a disability requiring special education services, while eligibility for Section 504 may occur when the child needs special education OR related services. Because of this distinction, children covered under Section 504 include those who typically either have less severe disabilities than those covered under IDEA, or have disabilities that do not neatly fit within the categories of eligibility under IDEA.

IDEA

Who’s Eligible?

IDEA is the law that governs all special education services in the United States. IDEA provides
federal funding to school districts to support special education and related services. Thus, a need for special education is a requirement of IDEA. IDEA provides special education for those children who meet the eligibility criteria for one of a number of categories. If the child meets the criteria listed under one of these categories, the disabling condition adversely affects educational performance, and he requires special education, the child may be eligible to receive services under this law. ADIHD is listed under the IDEA category “Other Health Impairment.” To receive services, the child must have a diagnosis of ADIHD that results in
limited alertness to academic tasks, due to heightened alertness to environmental stimuli; must be chronic (long-lasting) or acute (have a substantial impact).

Section 504

Who’s Eligible?

Section 504 is a civil rights statute requiring that schools not discriminate against children with disabilities and that they provide children with reasonable accommodations. Under some circumstances, these reasonable accommodations may include the provision of services.
Eligibility for Section 504 is based on the existence of an identified physical or mental condition that substantially limits a major life activity. As learning is considered a major life activity, children diagnosed with ADIHD are entitled to the protections of Section 504 if the disability is substantially limiting their ability to learn. Children who are not eligible for special education efect on educational performance; and the student must require special education services in order to address the AD/HD and its impact.

Evaluation

A multidisciplinary evaluation procedure is required to determine if a child is eligible for special education under IDEA and requires that the child who is eligible be considered for full or partial reevaluation at least every three years. The evaluation team must also consider whether the child requires assistive technology devices or services. IDEA requires that the school district considers the findings of outside evaluators and, under some circumstances, pay for independent evaluations. Parental consent is required before any evaluation begins. A parent’s suspicion that a child has AD/HD is not sufficient to require a school system evaluation under the IDEA - an adverse effect on educational performance must also be reflected in the child’s school work or school behavior. If an evaluation is warranted, it must be provided at no cost to the parents. This includes any medical component of the evaluation; parents are not financially responsible for the evaluation. If they have health insurance, the school must ensure that there is no out-of-pocket expense, nor impact on caps and premiums.

What Does It Provide?

Under IDEA, once an AD/HD child is determined to be eligible for special education, the child is entitled to have an individualized education plan (IEP) that includes annual goals and short-term objectives, and is developed with the participation of the parents. Once the IEP is completed, parents or the school can request changes to it, but no changes can be made without the parents being informed and having an opportunity to request an impartial due process hearing to challenge the decision. The IEP will be reviewed each year with any needed changes made. Parents are members of their child’s eligibility, IEP and placement teams. IDEA provides procedural safeguards that Section 504 does not. It specifies that a child must be may still be guaranteed access to related services if they meet the Section 504 eligibility criteria.

Evaluation

Although Section 504 requires testing and requires that testing be non-discriminatory, there are ,far fewer regulations placed on the testing procedure than are found with IDEA. In addition, unlike IDEA, Section 504 does not discuss the frequency of testing; the role outside evaluations may play, and does not require parental consent for testing. It does require that an evaluation be conducted before a child receives a 504 plan and before any changes are made to the plan.

What Does It Provide?

If the child is eligible under Section 504, the school district must develop a Section 504 plan. However, the regulations do not dictate the frequency of review of the 5()4 plan, and do not specify the right of parents to participate in its development. ll states and local education agencies must make a mediation process available to resolve disputes about a child’s special education. Fr children with more severe behavioral problems that lead to suspension and expulsion, IDEA also has two important provisions. Even when suspended or expelled, children covered by IDEA are still entitled to education services that meet the standards of a free appropriate education. Parents can request an impartial due process hearing when they disagree with the school’s decision in such matters. Under a separate provision, the child can remain in the then-current educational placement until all administrative proceedings are concluded (with the exception of cases where the child has brought a weapon or drugs to school, or is proven to be substantially likely to harm himself or others).

Which One is Right for My Child?

In general, Section 504 provides a faster, more flexible and less stigmatizing procedure for obtaining some accommodations and services for children with disabilities. By virtue of the looser eligibility criteria, some children may receive protection who are not eligible for services or protection under IDEA, and less information is needed to obtain eligibility. Thus, Section 504 can provide an efficient way to obtain limited assistance without the stigma and bureaucratic procedures attached to IDEA.

On the other hand, IDEA offers a wider range of service options, the procedures for parent participation and procedural safeguards are far more extensive, and the degree of regulation is far more specific than that found in Section 504. If a child has behavioral challenges that could lead to the possibility of excessive discipline, suspension and expulsion, parents should be particularly aware of the less rigorous safeguards provided by Section 504.

This fact sheet is designed to summarize various legal issues affecting the education of children with AD/HD and should not be construed as legal advice or a legal opinion on specific facts. Readers with particular questions should seek the assistance of their own legal counsel.