Myths, Legends and Realities- Legal Rights of Kids with AD/HD at School

Myths, Legends and Reality-
School obligations for Kids with AD/HD That
Need IEPs or Section 504 Plans (c)
by
Matt Cohen, J.D.

This will appear in ADDitude Magazine's Fall
Success in School Issue -
www.AdditudeMagazine.com


After working in special education law for more than 30 years, I have found that some schools don’t always follow the letter and spirit of the law when it comes to providing accommodations and services for children protected under the Individuals with Disabilities Education Act (the IDEA, the law governing special ed) and Section 504. The bottom line: Because your special needs child doesn’t receive some or any of the educational assistance he deserves, he may find school more challenging or even experience failure, rather than success.
Here are 10 common myths that some schools purvey, either through ignorance or in an attempt to discourage parents from receiving help they are legally entitled to. Remember parents: Knowledge is power.

1) Myth: ADHD is not a real disorder and does not qualify as a disability.
Reality: ADHD is among the most thoroughly researched and documented psychiatric disorders, and the U.S. Department of Education has expressly recognized that students with ADHD may qualify for special education (and an IEP to implement their program) under the Other Health Impaired (OHI) Category or a Section 504 plan, even if they don’t qualify for an IEP through special education.

2) Myth: Students with ADHD may only qualify for a Section 504 plan, not an IEP, particularly if they are getting passing grades or adequate achievement scores.
Reality: Students diagnosed with ADHD can qualify for an IEP if their AD/HD adversely affects educational performance (including social and behavioral performance), and requires special education (including modifying the content, method or
mode of delivery of regular instruction,). Special education can be delivered in a regular education classroom. The OHI category of IDEA expressly lists ADHD as one of the Health Impairments that may qualify for special education. Further, a student with AD/HD may qualify for an IEP even if they are getting passing grades and have good achievement scores, if they are having other serious difficulties at school.

3) Myth: Students with ADHD can only qualify for an IEP or a Section 504 plan if they are failing or if they have below average achievement test scores.
Reality: Students with ADHD may be eligible under either law if their symptoms affect their performance at school, including problems with organizational skills, time management, behavior and social skills, or even regularly talking without being called on. Failing grades and low achievement scores may be evidence of impairment, but are not the only factors to consider. IEPs should not only identify accommodations or related services to address the student’s needs, but also goals for the student to improve the behaviors that result from the ADHD, such as time management problems or being off-task.

4) Myth: To be eligible for special education or Section 504 plan, the student must be diagnosed with ADHD by a physician.
Reality: While best-practice evaluations of ADHD recognize the importance of comprehensive medical and psychological evaluation of a student suspected of having ADHD, the Department of Education has issued a policy statement stating that if the IEP team includes persons the school believes are qualified to diagnose ADHD—a psychologist trained to evaluate ADHD—a medical evaluation is not legally required.
5) Myth: Schools may require a medical diagnosis of ADHD at parent expense prior to proceeding with an evaluation for special education or a Section 504 plan.
Reality: If a school requires or recommends a medical, psychiatric, or neurological evaluation as part of the evaluation process to determine eligibility for special education or a 504 plan, the medical evaluation must be at no cost to the parent. The school must pay for it.

6) Myth: Schools may require that students with ADHD receive stimulant medication in order to qualify for special education or for other school services or activities.
Reality: Schools may not base a student’s eligibility for special education or any school activity on their taking any medication. Medication is a medical decision between the family and their doctor. If the student has ADHD and qualifies for special education through an IEP or a 504 Plan, but is not taking medication, the school still must develop appropriate academic and behavioral supports to meet their needs.

7) Myth: Teachers may decide whether or not they will implement an IEP or 504 plan or even have a student with a disability such as ADHD in their class.
Reality: If a student has an IEP or a Section 504 plan, the staff are required to implement it. Further, teachers may not refuse to have a student with a disability in their class, just as it would be illegal for them to refuse to teach a student based on race, gender or religion.
8) Myth: Students with ADHD may only qualify for a positive behavior support plan if they are exhibiting disruptive or inappropriate behavior towards others.
Reality: Under the IDEA and Section 504, positive behavior supports can be included in the plan to address academic and social problems, such as timeliness, work completion, social isolation and on-task behavior, as well as to address aggressive or disruptive behaviors.

9) Myth: Students who have ADHD and a 504 Plan are only entitled to accommodations, like preferential seating or untimed tests, not services.
Reality: Under Section 504, students with ADHD (and other disabilities) are not only entitled to accommodations, but may also be entitled to specialized educational services (such as individual instruction or tutoring) and related services (such as counseling). The Section 504 plan should be designed to meet the individualized needs of the student.

10) Myth: Students with AD/HD can not qualify for 1-1 aides, bus transportation or other more intensive/expensive services.
Reality: Students with ADHD are entitled to any services or supports necessary for them to benefit from their education under IDEA or to have equal access to educational opportunities under Section 504. There is no limitation on the nature or types of services a student may qualify for, if it can be demonstrated that the service is needed for the student to participate in educational activities provided to others and/or to make meaningful progress in the least restrictive environment appropriate to their needs. Any blanket policy limiting access based on diagnosis or disability label is suspect.

(c) Copyright by Matthew Cohen, April, 2011, May not be reproduced without author's express written consent. Additude Magazine Article may be reproduced only with consent of the publisher..