Yes, School Districts Do Hold IEP/504 Meetings and Do Evaluations During Summer

Well, summer is flying by, and if your child doesn’t have an appropriate placement at school, don’t lose hope. If the IEP/504 Plan isn’t right, many school districts seek to “protect their staff” from the instrusions of working with parents and administrative issues during summer because they are working with reduced staff. No school district is exempt from this tactic, to my knowledge. They all seem to say, “It can wait until Fall.”

Well, the first day of school with an inappropriate IEP is not an It-Can-Wait item, is it? So let’s get with it and see what we can do.

First, moderate to large school districts don’t shut down their administrative offices, and it is in these administrative offices that anything can be done for an IEP change and evaluations that might be done during school months at local schools.

How do we get that done? Letters. Phone calls. Find out who is in charge of special education at your child’s school during summer months and make it clear by phone, personal visits, and writing that your child’s issues can’t wait. Explain on the phone that your child’s access to education doesn’t exist with an inappropriate IEP or without adequate evaluations to know what is really needed. On paper, write the district that your child’s IEP is inappropriate and this is denial of equal access to his education under both IDEA and Section 504. Go ahead and use the law to back up what you say. It’s what makes them move during summer. Write that without an immediate evaluation, no appropriate IEP could be drawn up because the data doesn’t exist to make placement decisions correctly.

If your child is one who learns slowly and will have great difficulty catching up after missing months of appropriate instruction, say so bluntly. “My child will suffer a loss of opportunity to learn and will require months of remedial efforts to catch up. This does not represent equal access to learning, equal opportunity to learn, nor equal effectiveness in education.”

One of my clients went so far as to say, “Andy is not receiving FAPE with his current IEP. Continuing with this inappropriate IEP isn’t exactly child abuse, but it is mentally and emotionally abusive to keep a child in a regimen of demands he can’t cope with until he becomes emotionally ill. This is what I see happening to my child and I will use every social, administrative and legal means I can find to stop it, including complaints to the State DOE and the Office for Civil Rights.” Her child was being damaged emotionally by a do-nothing administration that had put off evaluations and appropriate IEP provisions for two years. The month she wrote this letter, there was action.

A complaint to Office for Civil Rights involves vast amounts of data collection and proof of appropriate action or justification of why no action was taken. Hundreds of man hours, hundreds of papers, forms, etc. take man hours away from their daily duties in the school district. When that threat exists, many school districts take another, harder look at what needs to be done for the child, and it is often cheaper to serve appropriately in education than to defend against a complaint to Office for Civil Rights.

I’m NOT recommending you automatically throw out such threats. If they are warranted, don’t delay. But put your self in the district’s shoes. Your child’s needs must be presented to them in such a way that it is impossible to deny what is needed. Use the law and regulations. Get your district’s procedures and quote their own rules and procedures at them. These must comply with federal and state laws, so what you need will be there. Find it and use it.

The fact that it is summer does not justify delaying implementation of special education policy and procedures.

Tell them simply: “Jason’s education is negatively impacted every day he goes to school with an inappropriate IEP. Jason is entitled an appropriate IEP every day that he goes to school, including the first day of school in September, 2014.” Then tell them when you will be in their office to sign the consent for evaluation (give them 3 or 4 business days to prepare it for you) or give them 2 options when you can be available for IEP meetings in 7 to 10 business days. Give your contact information and then mail the letter so someone must sign for its receipt–certified or registered. Or hand carry it with a notation on YOUR copy that this letter was “Hand delivered to _____ on (date)” to be signed by the person who accepts it from you.

School districts do function in the summer. If you don’t know whether your district is open in summertime and no one answers the phone, call your state’s Department of Education special education office. They will tell you if it is open for business. If it is, you just have to put your child’s case on their list of priorities.

Prepare For Your Child’s IEP Review in May, Pt. 1

Hello, Parents, Grandparents, Guardians,

It’s April 22, which means it’s almost May.  May means IEP reviews and 504 Plan reviews.  (For this series, IEP will also mean 504 Plan since 504 plans meet the same academic needs as IEP Plans.)  Whether you think your child’s IEP is fine as it is and can just take a rubber-stamp to keep things going well or you think your child’s current IEP stinks like yesterday’s fish wrappers, there are a few things to consider.

A.  Some students will be changing to bigger, more challenging schools – middle school, high school and may need help with the transition.  We will address this issue today.

B.  The sheer number of special education students in some districts can make it nearly impossible to review all IEPs in May.  However, many school districts will do it anyway and may use methods that violate your child’s and your family’s right to privacy under Family Education and Right to Privacy Act (FERPA).  That’s for tomorrow.

C.  What should be done to address academic failure?  Social promotion is NOT acceptable, and neither is retention.  So….what to do?

D.  Is your child one who needs success is something at school to prevent him or her from giving up altogether?  Is that something a non-academic activity such as sports or drama/theater which require grades better than your child can get with an inappropriate IEP?  Or just better grades?  There IS a way to use IEPs and 504 plans to make these activities available to special education students despite lower grades than required by The Almighty Rules.

The topic for today is that bumpy ride between two levels of academics–elementary school to middle school, middle school to high school.  At this point in life, the majority of students are making huge strides in personal development and learning school that make such large changes reasonable and necessary.  Is your child ready for such momentous changes?

1.  Is your child at the transition point between academic levels–moving from elementary to middle school, middle school to high school?  If so, arrange a conference with your child’s teachers before scheduling the IEP/504 Plan meeting.  Ask if teachers and/or staff see anything about your child, the effect your child’s disability has on his/her education, and your child’s maturity that should be taken into account on the IEP for the next academic level.  What should you be considering?

a.  Many children with disabilities lag behind their peers in social or personal development. Middle school students are beginning to socialize more away from home and the pressure to fit in somewhere becomes intense.  Students who can’t succeed socially are at risk for depression and ostracism – two main ingredients of Columbine and similar events.  Students who are not ready for the leap in greater academic demands are at risk for failure without prevention of failure or immediate remediation.

b.  Middle school brings a change of classroom along with change of subjects AND a change of teacher.  Some children may not really be quite ready for that many changes all at once in September.

c.  In high school, those changes are in place, but the academic intensity increases.  Homework demands soar.  The building is larger, and there will be lost children at first.

d.  Sports and clubs loom large in the social atmosphere and a teenager’s life can become a constant popularity contest if a teen doesn’t perceive his individual value outside that context.

There is an answer when we ask how we can help with this transition.  Summer school.  (Eyes rolling, sighs, OMG, someone says.)  Summer school is held with far fewer students, so hallways are not jammed, classes are small, almost intimate, and students have a chance to start school with new friends already in place.  They already know their way around the building, so they don’t get lost and panicked in crowds.  They already know some of the teachers.  They already know the cafeteria, its rules, its perks.  This is an item for the child’s IEP that will give a jumpstart to what could have been a rocky transition full of potential failure.

If your child does not handle change well,

If your child is somewhat or very socially immature,

If your child is directionally challenged even in a space the size of a lunch bag,

If your child has fears of the bigger, new environment that is coming,

If you think these aspects of your child may interfere with his or her ability to succeed academically during the Fall semester or the entire first year, then summer school is a very reasonable and needed accommodation to request for your child’s IEP or 504 Plan.

If your school denies summer school for reasons that have nothing to do with your child, such as

–we reserve it only for children who failed the academics this year;

–we aren’t babysitters for immature children, find a club for him/her;

–we don’t have the funding for it; or

–there’s a waiting list. . .

grab your local education advocates and make some school administrators realize your child truly NEEDS summer school as a foundation for academic success in the Fall.  You can find advocates at your state’s Parent Training and Information Center (PTI) http://www.parentcenterhub.org/find-your-center/  and at Council of Parent Attorneys and Advocates (COPAA) http://www.copaa.net.

There are no excuses for denial of FAPE for a child with disabilities.  Legislators with pet projects in mind for campaign money donors have cut our education budgets to unreasonably low levels, but there is money to meet special education needs when the alternative is to fill out about a thousand pages of paperwork to respond to a legitimate formal complaint to OCR or to lose all special education funding in the district for refusal to serve.  Sometimes services are not provided just because parents don’t know how to insist or because administrators can deny them.  Summer school does cost money–plenty of it.  It’s a convenient item to cut from the budget if no one complains loud enough. None of these reasons to deny summer school is permissible.

Don’t feel guilty because your child’s education costs more and don’t let anyone make you or your child feel “inferior.”  Don’t let anyone dismiss your child’s needs by saying his/her costs take money away from others.  (Our legislators do that just fine, thank you.)  We don’t flip out OCR complaints every 90 days, only that one time that something absolutely critical was denied and there was no other path to peace.

Because we only get to live each day once and learning is the most important work anyone does for the first 18 years of life, it’s important to give each child appropriate support to achieve success.

 

 

New Year, New Semester, Same Old Inappropriate IEP?

This is the post that wraps up 2013 and takes a look at 2014.  With children who have disabilities, we have to think about the future as something that MUST, I mean absolutely MUST bring progress toward future independence.  Here are a few questions to consider in the academic realm that require a community effort to solve.

1.  If your child was not invited to holiday parties by the neighbor children or classmates, why not?  Are her social skills so far behind those of her peers that they choose not to be around her?

Help:  Some children must be taught to interpret social cues coming from tones of speech, facial expressions, and body language.  If your child is actively being excluded from participation with peers, ask teachers to tell you what they think causes this to happen at school.  If you attend religious services and your child is in a classroom, ask what those teachers see.  Ask a school counselor to help you design ways to help your child become more socially “fluent” at school and if necessary, call for an IEP meeting to make it formal and mandatory.  Good students are usually socially adept and work well in teams.   This is not “learning to party.”  This is to learn how to function in the total academic setting–where being accepted as part of a group leads to the shared learning and study groups experience that is vital to academic success.

2.  If your child has not made progress in reading, reverses letters, and had difficulty with directions and sequencing, Try Harder is not the program for success.  Many children with dyslexia and various reading problems need therapy with speech pathologists and programs such as Lindamood-Bell, Fast ForWord, and other help to develop phonic awareness and sequencing ability.  These are expensive programs that many school districts have refused to purchase because they believe they can’t justify the expense to serve one child.  There probably are less than a dozen school districts in the nation that have only one child in need of one of these programs.
Help:
Step A:  Make your request for immediate evaluation for what your child needs for learning to read.
Step B: If the evalution recommendations include therapy, insist that therapy be provided.  The excuse that ‘This district doesn’t do that,” is a denial of FAPE.  If such denials occur, notify your state Department of Education’s department of Special Education and they should help you enforce your child’s right to FAPE.
3.  If your child is in special education classes but the class is still too large for your child to be successful, you may request and get smaller settings for him.
Help:  The school staff will protest that this “isolates your child,” or “makes him stand out as different”.  Don’t listen to that.  For certain things, we have to remember that this “isolation” is what he needs now and may not always be needed.  It may only be required for one or two subject areas.  Whatever his needs are, he is entitled to an education that includes successful learning in ALL subjects.  Write to the school principal to request an IEP or 504 Plan meeting to add the appropriate placement details to the plan.
Whatever your child requires to learn and access his education appropriately is the MAIN IDEA here.  What does he require?  Is he getting it?  A new year is beginning.  It’s a great time to start a new line of requests for your child’s FAPE.

New School Year and Still No Reading Success?

Many school districts open for classes in August, and by mid-September, many teachers have started the new year’s instruction. For students with good memory, times have been good because much of the day was spent in review with only a little new material added. By the end of September, all the material will be new. Is your child’s IEP ready? Today’s example deals with reading and phonological awareness.

If your child is not reading properly but is not reversing letters or words in a dyslexic way, you might have heard the phrase “phonological deficits” during an IEP meeting or evaluation discussion. This phrase means a child is struggling to understand the meanings and patterns of spoken words and may find it too difficult to link poorly- understood sound to written symbols.

Trying harder is 100% an ineffective disaster strategy for these children. They are trying their best every time they look at print. If trying were the key, they’d be reading encyclopedias. These children need a kind of language therapy that has been incorporated into the Lindamood-Bell program and Fast ForWord program. These programs present sound information in ways that allow these students to develop the neurological pathways for interpreting sounds and learning to read. Children can sometimes gain years’ worth of skills in a matter of months. Some are able to exit special education when finished if reading was their only learning disability.

Lindamood-Bell and Fast ForWord are both expensive and school districts don’t provide them easily or upon request. When my child needed such therapy, it took an entire semester of meetings, letters, and finally an offer to write to Office for Civil Rights to get their opinion on the matter before our school district consented to try just 12 weeks. In that time, he gained 2 years of skills; today my son’s favorite activity is reading law and case histories–for fun.

Today, 10 years later, I attended an IEP as advocate for a child whose psychological evaluation report contained recommendations for Lindamood-Bell or Fast ForWord. Neither is in the IEP. Why? The school offers neither, and while there are discussions and/or negotiations underway to buy/use a similar program, the issue is not settled yet. Instead of a fully appropriate IEP, there is a request for the parent to allow the school time to see if the student can make progress with only being identified and placed as an SLD student. Staff asked the parent to wait until January “to see if”. That is half the school year! Is this adequate? It is not FAPE, surely.

It is “enough” because the parent is willing to wait and see. But not half the year. One month. That is time enough to see if behaviors are beginning to improve, if academics are starting to advance. If not, what is the remedy?

In cases like this, the school district has no choice. Its own evaluation report recommends one of these two programs or one like them. All are costly. A school district will only buy one of these if it is determined that there are enough students to benefit from it AND justify the expense. If there are no parents insisting that their child’s education requires this, a district can put off buying a program every year for years. Here is another fact: If a student must have one of these programs in order to learn, one of them must be provided. If FAPE cannot be provided without using some program to develop phonological awareness and skills, then such a program must be provided. Period.  The expense is justified by the child’s need.

There are at least 4 ways to provide for this need:

1. School district must buy a an appropriate program that remedies phonological deficits and provide it to students who need it. This takes time, especially if school speech pathologists and/or other staff must then be trained to teach the program.**

2. Transfer the student to a public school that has the program.

3. Transfer the student to a private school that has the program (and at district expense).

4. District arranges and pays for after-school services. (And pays for or provides transportation to and from if parents can’t.)

There will be a trial period before seeking to enforce this for today’s case because we truly don’t know if the change to special education will be enough to provide sufficient advancement and progress. We don’t really think it will take half a school year to know if progress is being made, but close monitoring will tell us what we need to know.

Parents, if a school evaluation makes a recommendation and then the district does nothing to address it, you should insist the appropriate service be provided by whatever means the school district can arrange. Your child’s access to an appropriate education is at stake. Go for it!

** If a decision has NOT been made to purchase and the district is just “shopping”, do not accept a recommendation to wait until there is a purchase because it may never happen. Also, if you are told it will be a semester or more before your child’s services could begin, don’t agree to wait that long, especially if your child is in a year of school in which a standardized test will mandate retention if your child’s scores are too low. A lifetime of being behind is too high a price for your child to pay just because the district doesn’t want to pay for individual services.

ASD and DSM V

Folks, this will be short and sweet. if your child has or your suspect your child has a diagnosis in the Autism/Asperger domain, I want you to go to the article linked for you here and read every word. The new term for autism will be “social communication disorder.” It is important for us to understand that when the psychiatry profession changes how it views our child’s disability, many other things can change as well. In this case, how schools qualify or don’t qualify these children for services, whether insurance will cover their services, etc. hinge upon how these diagnostic standards are written. If you are unaware of how much potential change is coming for our children as a result of these decisions, you may be caught completely unprepared to help your child or your family. Please read the article, do some investigation, learn how you and your child are likely to be affected by this change in diagnositc standards. There may be a shift in how the public views the autism diagnoses in the future as a result of these changes–and you need to be aware of that, too. Go here: @socialthinking #The DSM-5 and #ASD: My Thoughts by Michelle Garcia Winner      http://ow.ly/axSbH.

Winner included the new DSM V criteria for the autism diagnoses at the end of the article. Read those, too and see where your child’s diagnosis is likely to fall. Does the new diagnosis describe a nice fit for your child? Or is your child bunted out of the description and likely to be left without diagnosis in this area? You need to start strategizing and working with your child’s professionals now as to how you can maintain your insurance and school benefits if the new diagnostic standards don’t fit your child well enough to qualify.

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.

ADHD and Risk of Alcohol and Substance Abuse

In her dissertation study of how ADHD might pose an increased risk of alcohol and substance abuse, Anne Carol Banks found that a child who has ADHD but is not diagnosed or is not treated for it is at increased risk of developing substance abuse.  She also found that children whose ADHD was identified and being treated have a reduced risk for developing alcohol or substance abuse.

ADHD is invisible, and to many parents, seems like willful disobedience instead of the manifestation of a neurological condition the child can’t control without help.  The impulsivity causes children to interrupt the conversations and activities of others; combined with poor social skills for how to smooth these events over, children find themselves swiftly rejected by their peers.  They find their inattentiveness causes them to miss important social cues for which no one could ever invent an excuse, they miss details of instructions and school assignments and conversations.  The instant emotional response to irritations or differences of opinions causes additional problems for those who have this symptom in place. Socializing then becomes uncomfortable and  unpredictably bad, worse, too awful to talk about for many children with ADHD.  Parenting for these children without the diagnosis that gives clues to proper actions and remedies becomes an “adventure” in mistakes, maladaptation, and misunderstanding on all sides.  Often both the child and parents would like some relief.

Those who have tried various drugs and alcohol tell us that there is a window of time when their brains function more normally and they have sought to reach that point through illicit drugs when their diagnosis was unknown and/or treatment was not given.  The dangers of addiction and overdosing, not to mention the illegality of drug abuse, seems less important to these people because it is in the world of “What If.”  Their daily frustrations are in the here and now, very real, and very frustrating.  Relief, no matter where they find it, is highly desirable.  They do whatever they can to find some normality, even for short periods of time.

This is one study that highlights the importance of early identification and early intervention.  Do you know the signs of ADD/ADHD?  You can Google “symptoms of ADD and ADHD”.  If you know a child who fits the description but has not been diagnosed and is not being treated but who is struggling in school, please suggest to parents that there is help.

Parents who have decided not to give their child medication for ADD/ADHD without having tried any must continuously re-evaluate their parenting strategies. They need to be sure they are providing enough training in compensatory strategies to avoid constant confusion, opportunities and perhaps clinical support to learn strong social skills.  There must also be enough mental and emotional support to avoid depression and anxiety so their child will never feel the need for any external relief assistance.

You can read Banks’ dissertation and see how she determined the risk of substance abuse for many other social factors including male, African-American, Caucasian, students of low income households, students suspended for anti-social behaviors, poor decisions, disruptive or aggressive behaviors, truancy or delinquency, low grades, and high number of absences and approximately when that substance abuse might begin.  Banks, Anne Carol.   An Early Risk Assessment Model for Alcohol and Substance Abuse Using ADHD Predictors of Risk .   Dissertation Abstracts International, A: The Humanities and Social Sciences, vol. 66, no. 4, pp. 1498-A, Oct 2005.