School and Your ADHD Child
Understanding Federal Regulations
Your child may qualify to receive accommodations under Section 504 of the Rehabilitation Act. Section 504 states that:
“No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….” [29 U.S.C. §794(a), 34 C.F.R. §104.4(a)].
A parent, teacher, or doctor can request that a child be evaluated under Section 504, but, “the school district must also have reason to believe that the child is in need of services under Section 504 due to a disability,” (Office for Civil Rights “OCR” Memorandum, April 29, 1993). Again, the determination for services due is up to the school.
If you suspect your child has ADHD or your child has been diagnosed as ADHD, then you may also have rights under the Individuals with Disabilities Education Act (IDEA). The IDEA is a law ensuring services to children with disabilities throughout the United States. It governs how states and public agencies provide intervention, special education, and related services to children and youth with disabilities. IDEA provides federal financial assistance to State and local education agencies to guarantee special education and related services to eligible children with disabilities aged 3-21.
Now, here’s the tricky part: The Department of Education had to write regulations to help explain how IDEA must be implemented by the states. Your rights apply specifically to your state. Some states only comply minimally with IDEA. Some states go above and beyond IDEA. So, your state may actually provide more for your child than another state nearby. Fundamentally, IDEA entitles a child suspected of having a disability to a comprehensive evaluation by a multi-disciplinary team provided at no cost to parents. Just being labeled ADHD does not automatically insure special education and related services under the IDEA.
So Is My ADHD Child Covered by Section 504?
Under Section 504, students qualify if they are between ages 3 and 22 and have a disability [34 C.F.R. §104.3(k)(2)].
So, the next question is, does ADHD qualify as a disability? The federal law states that:
“An individual with a disability means any person who:
i. has a mental or physical impairment which substantially limits one or more major life activity;
ii. has a record of such an impairment; or
iii. is regarded as having such an impairment” [34 C.F.R. §104.3(j)(1)].
Does ADHD qualify as an “impairment?” This is the gray area in which ADHD seems to fit well but allows wriggle room for schools. Under Section 504, impairment may include any disorder or disability that “substantially” reduces a student’s ability to access learning in the educational environment because of a learning or behavior related condition.
The wriggle room for schools is that the law is always subject to interpretation. So, every school interprets and implements Section 504 differently. Since ADHD has no physical manifestation like epilepsy or cerebral palsy, it is a hidden problem. Compounding this is the fact that many educators still believe the myth that poor parenting causes the problem or that by giving the child medication, all will be solved without need for accommodation at school. Therefore, under these circumstances, the onus is not on the school, they believe, it is on the parent.
Unfortunately, Section 504 does not define a list of specific disorders (again wriggle room). Obviously, that list would have to be highly comprehensive and definitive.
Also, ADHD would have to affect “major life activities.” Major life activities do include, among a variety of other things, concentrating (ADHD), learning, sitting, working, thinking, and interacting/cooperating with others. Many of these major life activities are often affected by ADHD. So, your ADHD child may be included, but the school must agree that some of these “major life activities” substantially limit your child’s education.
What does “substantially limit” mean?
Lawmakers never defined “substantially limit” (more wriggle room). Because of continued demand by parents, schools, and their respective attorneys, the OCR determined:
“This is a determination [definition of “substantially limits”] to be made by each local school district and depends on the nature and severity of the person’s disabling condition.”
To be clear, the OCR states that the schools determine the “nature and severity” of the student’s disability (ADHD).
How Do I Approach School Staff About My Child?
First, you must approach the school calmly and professionally. Walking into a meeting when you are emotionally charged or angry will undermine your efforts. So, first and foremost, be calm.
Secondly, begin by requesting a meeting with your child’s teacher. You can do this in person or via the telephone. Knowing your child’s teacher and meeting face-to-face will allow you to view your child’s educational environment, so it’s a better idea to meet personally. Remember, teachers want your child to succeed, so try to work together as a team. When you meet, take accurate and copious notes. You may opt to record the meeting, but you should inform the teacher you are doing so.
Initially, before your meeting actually begins, note where your child is sitting in the room, how the room is composed, what instructional materials are posted on the walls, and whether class rules are posted. As your child’s advocate, it’s sensible to maintain a file in which you’ll keep your notes, meeting dates, copies of academic records, health records, etc. so you’ll always be prepared and informed.
Explain yourself clearly – describe your child’s problems as you view them. Having a list in-hand, made prior to the meeting, is a wonderful idea. Make note of the teacher’s responses to your concerns if any are given.
You may want to interview the teacher. Have a list of questions regarding your child’s behavior, grades, friendships, etc. Note the teacher’s responses. Ask the teacher if a plan can be developed to solve some of these issues. Write the plan down.
If you request an evaluation, the school, at their discretion, can provide an evaluation or referral for evaluation. The school may request an evaluation as well. An evaluation does not require formal testing. Often termed a “Care Team,” a 504 Committee may evaluate your child’s discipline reports, school attendance, grades, the teacher’s anecdotal records, parental interaction with the school, various academic test data, health records, etc. You may request copies of these reports.
If your school district refuses your request, the school district is required to give you (parent) a notice of your rights under Section 504. Even if the school does an evaluation and you disagree with its decision, you don’t have the right to demand that the school obtains an independent outside evaluation although you can file a complaint with the OCR. State educational agencies don’t have jurisdiction over Section 504 decisions locally, so it won’t be necessary for you to complain to them or request their assistance. You may also engage independent counsel (an attorney) to file suit if necessary.
If the school does place your child under 504 services, they are required to inform you.
If your ADHD child is determined to need special education or related services, a school based team will develop an Individual Education Plan (IEP). The IEP will be implemented based on the specific needs of your child as decided by the team. If the school allows (and you request firmly) you may be included-so be prepared with a diagnosis from you pediatrician, all appropriate paperwork for your child, suggestions about discipline, curriculum, and classroom structure. Again, this is a team process. The IEP may provide accommodations for your child. Some of these accommodations involve behavioral shaping which provides an individualized system of consequence and reward. Discipline at school should follow the IEP’s directions for this program. It would be wise for you to implement this at home if practicable.
If the IEP works or certain parts of it bring success, be certain to document this and offer feedback to the teacher. Contrarily, if the IEP is not successful, request another meeting to change the current IEP. Be able to distinctly cite IEP accommodations that are not working.
What Are Accommodations?
Accommodations are augmentations of the academic environment to assist your child in better managing that environment. Accommodations include, but are not limited to
- Recording classroom instruction
- Use of assistive technology (Play Attention)
- Extended test time
- Behavior shaping plans
- Strategic classroom seating
- Computer assisted instruction
Does Section 504 Mean My Child Will Be Placed in a Special Classroom?
This question often impedes a parent’s decision to seek eligibility for Section 504 because the thought lurks in the back of their mind that their child may be removed from his/her current educational environment. Will my child be stigmatized by this?
A relevant statute states that your child should remain in his/her normal classroom environment unless “… the student with a disability is so disruptive in a regular classroom that the education of other students is significantly impaired, then the needs of the student with a disability cannot be met in that environment. Therefore, regular placement would not be appropriate to his or her needs and would not be required by §104.34” (34 C.F.R. §104.34, Appendix A, #24).
This also means that even if your child is eligible for Section 504, then he/she is also eligible for regular or normal activities like physical education, music education, etc.
Play Attention staff members are former teachers and parents who have navigated the educational maze. We can speak to you about meeting with your teacher, establishing an IEP, accommodations, and much more. Call 800.788.6786 now to discuss your child.
The information on this page is submitted for informational purposes only and is not a substitute for legal advice. You may call your state’s Bar Association to locate a licensed, qualified attorney specializing in Section 504 and educational disability law. As you’ll read below, implementation of the law is different from state to state, so consulting with your attorney is the only way you can obtain an accurate assessment of your particular situation.