Help for Students With ADD/ADHD

I know this Clarification of Policy letter is old–1991–but it is still 100% correct and applicable to today’s cases. It has tons of information for parents struggling to know what schools should be doing for their children. Enough blather, already. Here it is.

Clarification of Policy to Address the
Needs of Children with Attention Deficit Disorders
 within General and/or Special Education

In the 1990 Amendments to the IDEA, Congress added “autism” and “traumatic brain injury” to the categories under the IDEA. CHADD had lobbied very hard for “attention deficit disorder/ attention deficit hyperactivity disorder” to be added as a category under the IDEA. The U.S. Department of Education convinced Congress that ADD/ADHD did not have to be added because it was fully covered under current law. The Congress required the U.S. Department of Education to explain how.

Under Federal statutory and regulatory law, when the Congress directs the executive branch agency that will implement a new statute to issue a written explanation, it becomes a part of the law just as much as the statute or the implementing regulations. Federal courts have recognized the following Memorandum as a part of the federal law and it is regularly cited in special education decisions…… Reed Martin

UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
THE ASSISTANT SECRETARY

DATE : SEP I 6 I99l

TO : Chief State School Officers

FROM : 
Assistant Secretary
Office of Special Education
and Rehabilitative Services

Assistant Secretary
Office for Civil Rights 

Assistant Secretary
Office of Elementary
and Secondary Education

SUBJECT: Clarification of Policy to Address the Needs of Children with Attention Deficit Disorders within General and/or Special Education

I.

Introduction



There is a growing awareness in the education community that attention deficit disorder (ADD) and attention deficit hyperactive disorder (ADHD) can result in significant learning problems for children with those conditions. (Footnote 1) While estimates of the prevalence of ADD vary widely, we believe that three to five percent of school-aged children may have significant educational problems related to this disorder. Because ADD has broad implications for education as a whole, the Department believes it should clarify State and local responsibility under Federal law for addressing the needs of children with ADD in the schools. Ensuring that these students are able to reach their fullest potential is an inherent part of the National education goals and AMERICA 2000. The National goals, and the strategy for achieving them, are based on the assumptions that: (1) all children can learn and benefit from their education; and (2) the educational community must work to improve the learning opportunities for all children.

This memorandum clarifies the circumstances under which children with ADD are eligible for special education services under Part B of the Individuals with Disabilities Education Act (Part B), as well as the Part B requirements for evaluation of such children’s unique educational needs. This memorandum will also clarify the responsibility of State and local educational agencies (SEAs and LEAs) to provide special education and related services to eligible children with ADD under Part B. Finally, this memorandum clarifies the responsibilities of LEAs to provide regular or special education and related aids and services to those children with ADD who are not eligible under Part B, but who fall within the definition of “handicapped person” under Section 504 of the Rehabilitation Act of 1973. Because of the overall educational responsibility to provide services for these children, it is important that general and special education coordinate their efforts.



II. Eligibility for Special Education and Related Services under Part B

Last year during the reauthorization of the Education of the Handicapped Act [now the Individuals with Disabilities Education Act], Congress gave serious consideration to including ADD in the definition of “children with disabilities” in the statute. The Department took the position that ADD does not need to be added as a separate disability category in the statutory definition since children with ADD who require special education and related services can meet the eligibility criteria for services under
Part B. This continues to be the Department’s position.

No change with respect to ADD was made by Congress in the statutory definition of “children with disabilities;” however, language was included with those conditions. (Footnote 1) While estimates of the prevalence of ADD vary widely, we believe that three to five percent of school-aged children may have significant educational problems related to this disorder. Because ADD has broad implications for education as a whole, the Department believes it should clarify State and local responsibility under Federal law for addressing the needs of children with ADD in the schools. Ensuring that these students are able to reach their fullest potential is an inherent part of the National education goals and AMERICA 2000. The National goals, and the strategy for achieving them, are based on the assumptions that: (1) all children can learn and benefit from their education; and (2) the educational community must work to improve the learning opportunities for all children.

This memorandum clarifies the circumstances under which children with ADD are eligible for special education services under Part B of the Individuals with Disabilities Education Act (Part B), as well as the Part B requirements for evaluation of such children’s unique educational needs. This memorandum will also clarify the responsibility of State and local educational agencies (SEAs and LEAs) to provide special education and related services to eligible children with ADD under Part B. Finally, this memorandum clarifies the responsibilities of LEAs to provide regular or special education and related aids and services to those children with ADD who are not eligible under Part B, but who fall within the definition of “handicapped person” under Section 504 of the Rehabilitation Act of 1973. Because of the overall educational responsibility to provide services for these children, it is important that general and special education coordinate their efforts.

II. Eligibility for Special Education and Related Services under Part B

Last year during the reauthorization of the Education of the Handicapped Act [now the Individuals with Disabilities Education Act], Congress gave serious consideration to including ADD in the definition of “children with disabilities” in the statute. The Department took the position that ADD does not need to be added as a separate disability category in the statutory definition since children with ADD who require special education and related services can meet the eligibility criteria for services under
Part B. This continues to be the Department’s position.

No change with respect to ADD was made by Congress in the statutory definition of “children with disabilities;” however, language was included in Section 102(a) of the Education of the Handicapped Act Amendments of 1990 that required the Secretary to issue a Notice of Inquiry (NOI) soliciting public comment on special education for children with ADD under Part B. In response to the NOI (published November 29, 1990 in the Federal Register), the Department received over 2000 written comments, which have been transmitted to the Congress. Our review of these written comments indicates that there is confusion in the field regarding the extent to which children with ADD may be served in special education programs conducted under Part B.

A. Description of Part B

Part B requires SEAs and LEAs to make a free appropriate public education (FAPE) available to all eligible children with disabilities and to ensure that the rights and protections of Part B are extended to those children and their parents. 20 U.S.C. 1412(2); 34 CFR 300.121 and 300.2. Under Part B, FAPE, among other elements, includes the provision of special education and related services, at no cost to parents, in conformity with an individualized education program (IEP). 34 CFR 300.4.

In order to be eligible under Part B, a child must be evaluated in accordance with 34 CFR 300.530-300.534 as having one or more specified physical or mental impairments, and must be found to require special education and related services by reason of one or more of these impairments. (Footnote 2) 20 U.S.C. 1401(a)(1); 34 CFR 300.5. SEAs and LEAs must ensure that children with ADD who are determined eligible for services under Part B receive special education and related services designed to meet their unique needs, including special education and related services needs arising from the ADD. A full continuum of placement alternatives, including the regular classroom, must be available for providing special education and related services required in the IEP.



B. Eligibility for Part B services under the “Other Health Impaired” Category



The list of chronic or acute health problems included within the definition of “other health impaired” in the Part B regulations is not exhaustive. The term “other health impaired” includes chronic or acute impairments that result in limited alertness, which adversely affects educational performance. Thus, 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 health problem that results in limited alertness, which adversely affects educational performance. In other words, children with ADD, where the ADD is a chronic or acute health problem resulting in limited alertness, may be considered disabled under Part B solely on the basis of this disorder within the “other health impaired” category in situations where special education and related services are needed because of the ADD.

c. Eligibility for Part B services under Other Disability Categories

Children with ADD are also eligible for services under Part B if the children satisfy the criteria applicable to other disability categories. For example, children with ADD are also eligible for services under the “specific learning disability” category of Part B if they meet the criteria stated in 300.5(b) (9) and 300.541 or under the “seriously emotionally disturbed category'” of Part B if they meet the criteria stated in 300.5(b) (8).

III. Evaluations under Part B



A. Requirements

SEAs and LEAs have an affirmative obligation to evaluate a child who is suspected of having a disability to determine the child’s need for special education and related services. Under Part B, SEAs and LEAs are required to have procedures for locating, identifying and evaluating all children who have a disability or are suspected of having a disability and are in need of special education and related services. 34 CFR 300.128 and 300.220. This responsibility, known as “child find,” is applicable to all children from birth through 21, regardless of the severity of their disability.

Consistent with this responsibility and the obligation to make FAPE available to all eligible children with disabilities, SEAs and LEAs must ensure that evaluations of children who are suspected of needing special education and related services are conducted without undue delay. 20 U.S.C. 1412(2). Because of its responsibility resulting from the FAPE and child find requirements of Part B, an LEA may not refuse to evaluate the possible need for special education and related services of a child with a prior medical diagnosis of ADD solely by reason of that medical diagnosis. However, a medical diagnosis of ADD alone is not sufficient to render a child eligible for services under Part B.

Under Part B, before any action is taken with respect to the initial placement of a child with a disability in a program providing special education and related services, “a full and individual evaluation of the child’s educational needs must be conducted in accordance with requirements of 300.532.” 34 CFR 300.531. Section 300.532(a) requires that a child’s evaluation must be conducted by a multidisciplinary team, including at least one teacher or other specialist with knowledge in the area of suspected disability.



B. Disagreements over Evaluations
Any proposal or refusal of an agency to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child is subject to the
 written prior notice requirements of 34 CFR 300.504-300.505.3
If a parent disagrees with the LEA’s refusal to evaluate a child 
or the LEA’s evaluation and determination that a child does not
have a disability for which the child is eligible for services 
under Part B, the parent may request a due process hearing 
pursuant to 34 CFR §§300.506-300.513 of the Part B regulations.

IV. Obligations Under Section 504 of SEAs and LEAs to Children with ADD Found Not To Require Special Education and Related Services under Part B



Even if a child with ADD is found not to be eligible for services under Part B, the requirements of Section 504 of the Rehabilitation Act of 1973 (Section 504) and its implementing regulation at 34 CFR Part 104 may be applicable. Section 504 prohibits discrimination on the basis of handicap by recipients of Federal funds. Since Section 504 is a civil rights law, rather than a funding law, its requirements are framed in different terms than those of Part B. While the Section 504 regulation was written with an eye to consistency with Part B, it is more general, and there are some differences arising from the differing natures of the two laws. For instance, the protections of Section 504 extend to some children who do not fall within the disability categories specified in Part B.

A. Definition



Section 504 requires every recipient that operates a public elementary or secondary education program to address the needs of children who are considered “handicapped persons” under Section 504 as adequately as the needs of nonhandicapped persons are met. “Handicapped person” is defined in the Section 504 regulation as any person who has a physical or mental impairment which substantially limits a major life activity (e.g.., learning).
34 CFR 104.3(j). Thus, depending on the severity of their condition, children with ADD may fit within that definition.

B. Programs and Services Under Section 504



Under Section 504, an LEA must provide a free appropriate public education to each qualified handicapped child. A free appropriate public education, under Section 504, consists of regular or special education and related aids and services that are designed to meet the individual student’s needs and based on adherence to the regulatory requirements on educational setting, evaluation, placement, and procedural safeguards. 34 CFR 104.33, 104.34, 104.35, and 104.36. A student may be handicapped within the meaning of Section 504, and therefore entitled to regular or special education and related aids and services under the Section 504 regulation, even though the student may not be eligible for special education and related services under Part B.

Under Section 504, if parents believe that their child is handicapped by ADD, the LEA must evaluate the child to determine whether he or she is handicapped as defined by Section 504. If an LEA determines that a child is not handicapped under Section 504, the parent has the right to contest that determination. If the child is determined to be handicapped under Section 504, the LEA must make an individualized determination of the child’s educational needs for regular or special education or related aids and services. 34 CFR 104.35.

For children determined to be handicapped under Section 504, implementation of an individualized education program developed in accordance with Part B, although not required, is one means of meeting the free appropriate public education requirements of Section 504. (Footnote 4) The child’s education must be provided in the regular education classroom unless it is demonstrated that education in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR 104.34.

Should it be determined that the child with ADD is handicapped for purposes of Section 504 and needs only adjustments in the regular classroom, rather than special education, those adjustments are required by Section 504. A range of strategies is available to meet the educational needs of children with ADD.

Regular classroom teachers are important in identifying the appropriate educational adaptions and interventions for many children with ADD.

SEAs and LEAs should take the necessary steps to promote coordination between special and regular education programs. Steps also should be taken to train regular education teachers and other personnel to develop their awareness about ADD and its manifestations and the adaptations that can be implemented in regular education programs to address the instructional needs of these children. Examples of adaptations in regular education programs could include the following:

providing a structured learning environment; repeating and simplifying instructions about in-class and homework assignments; supplementing verbal instructions with visual instructions; using behavioral management techniques; adjusting class schedules; modifying test delivery; using tape recorders, computer-aided instruction, and other audio-visual equipment; selecting modified textbooks or workbooks; and tailoring homework assignments.

Other provisions range from consultation to special resources and may include reducing class size; use of one-on-one tutorials; classroom aides and note takers; involvement of a “services coordinator” to oversee implementation of special programs and services, and possible modification of nonacademic times such as lunchroom, recess, and physical education.

Through the use of appropriate adaptations and interventions in regular classes, many of which may be required by Section 504, the Department belie

ves that LEAs will be able to effectively address the instructional needs of many children with ADD.

C. Procedural Safeguards Under Section 504

Procedural safeguards under the Section 504 regulation are stated more generally than in Part B. The Section 504 regulation requires the LEA to make available a system of procedural safeguards that permits parents to challenge actions regarding the identification, evaluation, or educational placement of their handicapped child whom they believe needs special education or related services. 34 CFR 104.36. The Section 504 regulation requires that the system of procedural safeguards include notice, an opportunity for the parents or guardian to examine relevant records, an impartial hearing with opportunity for participation by the parents or guardian and representation by counsel, and a review procedure. Compliance with procedural safeguards of Part B is one means of fulfilling the Section 504 requirement. (Footnote 5) However, in an impartial due process hearing raising issues under the Section 504 regulation, the impartial hearing officer must make a determination based upon that regulation.

v. Conclusion



Congress and the Department have recognized the need to provide information and assistance to teachers, administrators, parents and other interested persons regarding the identification, evaluation, and instructional needs of children with ADD. The Department has formed a work group to explore strategies across principal offices to address this issue. The work group also p1ans to identify some ways that the Department can work with the education associations to cooperatively consider the programs and services needed by children with ADD across special and regular education.

In fiscal year 1991, the Congress appropriated funds for the Department to synthesize and disseminate current knowledge related to ADD. Four centers will be established in Fall, 1991 to analyze and synthesize the current research literature on ADD relating to identification, assessment, and interventions. Research syntheses will be prepared in formats suitable for educators, parents and researchers. Existing clearinghouses and networks, as well as Federal, State and local organizations will be utilized to disseminate these research syntheses to parents, educators and administrators, and other interested persons.

In addition, the Federal Resource Center will work with SEAs and the six regional resource centers authorized under the Individuals with Disabilities Education Act to identify effective identification and assessment procedures, as well as intervention strategies being implemented across the country for children with ADD.

A document describing current practice will be developed and disseminated to parents, educators and administrators, and other interested persons through the regional resource centers network, as well as by parent training centers, other parent and consumer organizations, and professional organizations. Also, the Office for Civil Rights’ ten regional offices stand ready to provide technical assistance to parents and educators.
It is our hope that the above information will be of assistance to your State as you plan for the needs of children with ADD who require special education and related services under Part B, as well as for the needs of the broader group of children with ADD
who do not qualify for special education and related services under Part B, but for whom special education or adaptations in regular education programs are needed.
Footnotes:

1. While we recognize that the disorders ADD and ADHD vary, the term ADD is being used to encompass children with both disorders.

2. The Part B regulations define 11 specified disabilities.
34 CFR 300.5(b)(1)-(11). The Education of the Handicapped Act Amendments of 1990 amended the Individuals with Disabilities Education Act [formerly the Education of the Handicapped Act] to specify that autism and traumatic brain injury are separate disability categories. See section 602(a)(1) of the Act, to be codified at 20 U.S.C. 1401(a)(1).

3. Section 300.505 of the Part B regulations sets out the elements that must be contained in the prior written notice to parents:

(1) A full explanation of all of the procedural safeguards available to the parents under Subpart E;
(2) A description of the action proposed or refused by the agency, an explanation of why the agency proposes or refuses to take the action, and a description of any options the agency considered and the reasons why those options were rejected;
(3) A description of each evaluation procedure, test, record, or report the agency uses as a basis for the proposal or refusal; and
(4) A description of any other factors which are relevant to the agency’s proposal or refusal.
34 CFR 300.505(a) (1)-(4) .

4. Many LEAs use the same process for determining the needs of students under Section 504 that they use for implementing Part B.

5. Again, many LEAs and some SEAs are conserving time and resources by using the same due process procedures for resolving disputes under both.

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When Life Changes Bite

This last month has been really, really hard. First, somebody tried to make a right turn from the left turn lane and took part of the front of my car with her. I hadn’t had any other car accidents in over 20 years, but about 3 weeks later, I totalled my car. It doesn’t take much to total a 10-year old car, and my back doesn’t take much to flare up nastily. It flared with the first accident and has remained nasty ever since. My car was not replaced before my mother totalled her car. Before that was over, my younger son and I reached a decision to place him in an ALF–assisted living facility. We had to move fast to find a car for me, find a car for my mother, and find a place for my son that was appropriate for a young man 26 years old. Geriatrics aren’t a good fit for youth in ALFs. But there seems to be only one in our area–and this is Miami, FL, not a small place.

Crush, rush, tension, pressure, worry, and overwhelming sadness that my son’s life had come to this point. Hit by a car in July when his walking had already deteriorated to where he should have been using a walker, he has not recovered his previous walking ability, and the constant head-shaking is worse than ever. Now his hands have begun to shake, too. Neurologists don’t know what his diagnosis might be nor what his prognosis might be. All I know is that it keeps getting worse, not better. And now the sweet young man who was once thought gifted in first grade is unable to read regular print, has difficulty with memory, can hardly walk or keep his balance, and has ulcer symptoms due to life’s stress. It’s impossible for me to care for him and do a job, and it has come to this.

Institutionalization has its place, but it is not a joyous decision. This decision came amid extreme pressures, but it would hardly have been easier without those factors. Sometimes we just have to do something we don’t like and live with it. My son can’t like being the one “placed” there…and that gives me perspective on how petty my feelings about it seem in contrast. It would be easy for both of us to be depressed, yet we don’t seem to be. We are both looking at how to find the good in it. He gets to make new friends, discover a new neighborhood, find new foods he likes to eat, and learn new games to play with residents. I still get to drive a lot, but it knocked 10 minutes of the trip each way–YAY! And the best part–he lived alone and couldn’t take care of himself before–and now he has company and help.

Nobody knows what their future brings, but we do know one thing. Happiness is a choice. We can choose to find the good in our lives and be prepared to look for it pretty hard, making sure we haven’t overlooked something somewhere. There’s no value in picking at a sore so it doesn’t heal, and there’s no value in feeling sorry for oneself. So we’re picking ourselves up, dusting ourselves off (ah-choo!) and looking for where the sunshine goes. Healthy minds help make healthy bodies, and help sick bodies get well or at least not get worse. It becomes our daily routine to find joy, find delight, find happiness. We never fail to find something.

That is the challenge to parents of children with disabilities. Life deals us a few kicks in the teeth, and boot on the butt, a whack in the head. We have to keep standing and keep things moving to care for our families. There are days (weeks, months, years!) when it may seem like we can’t do it, yet there always comes tomorrow and we are still here. Even if we gave up on ourselves, we are still here. If we are still here, we can try again. We have courage, strength, and determination if we start again (once or often, it’s all the same. Just start again. Never stay “down”!)  If others are watching us, we may be inspiration for them.  No matter what happens, we are still here.

It is one of the great secrets of life that even those who gave up are still here. It’s up to us to develop the internal fortitude and grit to say, “So it’s time to begin again. Or continue. Only don’t stay like this!”

To all you parents whose challenges are so fierce that you feel like giving up but find yourselves still in the battle every day, no matter what, you have my undying respect and best wishes. We’re always fighting for something–it’s never calmly boring, this living with disabilities. Even that is a blessing!

There. I’ve started it. Recovery from life’s bites and blows begins with a first step toward re-discovering one’s happiness. It’s your turn. Where is your happiness and what delights can you gather to make this day better than it was?