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. 2

Note: As in Part 1 of this series, mentions of IEP will also include Sec. 504 and Section 504 plans.

Part 2 of Prepare For Your Child’s IEP Review in May will ask parents and guardians to think of some things that are NOT on the IEP or 504 Plan but which contribute to the quality and confidentiality.  Special education law requires that an IEP be “up to date” so that a student is receiving services and accommodations that will allow equal access to and equal opportunity for a Free, Appropriate Public Education (FAPE).  Many students need few services or accommodations beyond what is in a standard special education program, and when this is the case, reviewing or changing an IEP every year is a matter that schools and even parents may take for granted.  But sometimes school staff are given the task of keeping IEPs updated with a nearly impossible condition–do virtually all IEP reviews in MAY so the education plan is freshly prepared for the Fall semester.  If your school has only 90 students in special education, that can work.  For larger schools and larger districts, it doesn’t.  Here’s why.

1.  IEPs are “living” documents that should change as a child’s growth and maturation occur so that development of new skills and abilities as well as failure to meet developmental milestones is taken into account.  An IEP that stays the same year after year is rarely appropriate if it is rubber-stamped annually by staff who fail to evaluate and convey to parents what changes are occurring and what that means to a child’s education.

Students who grow bored and frustrated with programs that don’t work and keep them from any realistic academic success are potential dropouts.  Schools that write them off know this; to parents it’s a hit in the head when it happens because all they know is that school was always hard for their child.  They don’t know there are programs for dyslexia and central auditory processing disorder the school didn’t use, things that work, like Lindamood-Bell, Fast ForWord, Wilson, and other language therapy-based learning programs that are very costly but which are very effective.  They don’t know that when their child was faced with math, he simply shut down and scribbled on paper whatever came to mind just to be occupied while other students wrote down what they actually had learned.  They couldn’t know that every day their child went to school it was a supreme act of obedience and respect for their wishes because inside there was no reward or benefit other than seeing friends between classes and for a few minutes before and after school.  The rest was one long desert.  When such a student drops out at last, it is an effort to remain whole before a world of people who judge him or her as “deficient,” “dumb” or slow, as second-class and not worth a real effort.  Valueless.  Worthless.  A waste of space and skin.  This happens because a school district determined to “save money” left a child unable to function academically to grow up without efficient learning skills and a future of frequent or chronic unemployment.  Some students are lucky and find success in non-academic areas; there are not promises or guarantees that any student written off in this manner will achieve this.  They are the exception, not the rule.

The Point:  If your child’s IEP meeting is so short and so lacking in information that all you remember is where you were asked to sign the IEP, you need to double-check your child’s progress and achievement to be sure everything is in place that should be.  If it isn’t, find your local education advocate hat and work with him/her to make sure your child’s education is appropriate.  Hint:  15 minutes or less is NOT enough time to discuss a year’s worth of progress or failure or any combination of those or to plan effective remedies and accommodations for any child’s deficits and weaknesses.

2.  When hundreds of IEPs must be done in such a short time, some schools look for ways to speed things up.  My son’s school district chose to notify all parents by mail that their IEP review would be in the school library on X date at Y time.  When we arrived, we discovered hundreds of other families were already there waiting for their 15 minutes.  At every table in the biggest library room was one special education teacher.  The principal and special education assistant principal were “roaming”, going to the various tables as a teacher raised her hand to indicate it was time for one of them to sign that they had “attended” this IEP meeting.

Think about it.  Inadequate time for individualized planning for a child’s entire year of education.  A public setting for a confidential event.  School administrators signing off on documents that indicated they had attended the IEP meeting when in fact they had only been within 100 feet of a hurried, low-pitched request to “sign here.”  Violations?  Yes, indeed.  Violations of IDEA, Section 504, FERPA, and common sense.  Office for Civil Rights did not look kindly upon that behavior and demanded that all the IEPs be done individually and in confidential settings from the date of that correction letter forward.  Don’t let the size of your school district push you to let them railroad your child’s IEP into a circus event or another rubber-stamping of the education plan.

3.  “Sign here.”  One school in our district actually called parents in for an “office visit” at which time a school secretary handed the parent the signature page of an IEP plan and said, “Sign here.”  The parent began to examine the page and the secretary took it back.  “It’s just a school document that needs your signature.”  Again she pointed to the line.  “Sign here, please.”  NO IEP IS VALID IF IT DOESN’T REFLECT A STUDENT’S INDIVIDUAL NEEDS.  NO IEP MEETING IS ADEQUATE IF PARENTS ARE NOT PRESENT AND PARTICIPATING.

In this case, the school held a meeting and decided UNILATERALLY and without parental input or consent what should be on the students’ IEPs.  This is, quite simply, illegal.  Then they used the pages parents were asked to sign in complete ignorance.  So much for INFORMED consent!  Don’t sign anything about an IEP if you are not involved in the planning process.  Make your formal complaint to the superintendent of the district with a copy to the State Department of Education.

4.  It’s been a difficult year and the school staff tell you your child will be going to a different program in a different school next year.  STOP RIGHT THERE.  If you were not informed along the way of the difficulties and why the school staff want to consider a different placement, they are not keeping your informed and you do NOT have to consent to their one-sided decision to move your child away from the school he/she knows.  You should have been informed, given options and alternatives, and you should visit other schools before such a decision is made.  That’s IF you agree a different school is necessary.  If you do NOT agree, the district will have to take the case to Due Process before such a move can be made.  That could take 6 months or so.  Meanwhile, your child stays where he/she is.

5.  Bullying is NOT a natural behavior.  It is a learned behavior that can be unlearned.  If your child is the target of bullying, use the current emphasis on anti-bullying programs to insist the school tackle the problem head-on instead of ignoring it.  No school staff should ever look the other way when bullying is going on, and they should not be participating in it, either.

You can use an IEP to move your child to another school if bullying is a problem.  Or you can use the IEP to force school staff to counsel your child to learn to be strong and defend himself/herself against bullying; and an IEP may contain something like this:  Jimmy’s teachers will be trained in anti-bullying strategies so they can help teach Jimmy and his classmates how to end bullying.”

6.  Is your child finishing 5th grade this year?  Are you aware that 6th grade is the year when pre-college curriculums begin?  Students who are not in college-prep courses now may not be able to catch up later.  If your child has the intellectual potential to attend college but has grades that don’t even come close to showing that, the problems must be addressed with an IEP that gets right up close to everyone’s nose and in effect, says, “THIS CHILD IS COLLEGE BOUND AND NEEDS THE COURSE WORK AND SUPPORT TO GET HIM/HER THERE.”

Don’t let anyone tell you a child whose grades are A’s through F’s aren’t college stuff.  You tell them, “He’s capable of A’s and B’s most of the time if he’s getting what he needs to learn.  That’s your job.”  Of course you have to supervise the homework process and do your part to make sure he learns how to commit himself to the college goal.

There is a difference of a minimum of $800,000 in earning power between a high school diploma and a college degree.  Many post-secondary certification programs are for careers with similar wages/salaries.  Just tell yourself, “NOBODY WRITES OFF MY CHILD!”  Then work in a non-adversarial way as much as possible to push for the services and accommodations that will make college possibility a reality.

So what if he can’t read now.  He should have been reading long ago and would be if the district were doing its job properly.  This is the year you will fight to get that expensive reading therapy with a speech pathologist or a skilled specialist.  This is the year you’ll tell the school that your child can’t learn math if there are more than 4 (or whatever that number is) students in the room or in his group.  This is the year you’ll be telling them about social skills that sabotage his learning options and the need for social skills training is not to be ignored.  (By the way, your child isn’t the only one who needs this and they all know that.)  If you think your child’s IEP isn’t strong enough to get started on college prep and you KNOW your child is capable, here’s what to do.

A.  This year you’ll find an education advocate online or locally through your parent training organization (PTI, go to http://nichcy.org/families-community/help/parentgroups  or go to Council of Parent Attorneys and Advocates COPAA at www.copaa.net).

B.  You’ll ask for training in advocacy skills through the PTI and you’ll find a new confidence that touches many areas of your life.  You’ll read IDEA Part B and you’ll read Section 504 of the Rehabilitation Act and know your child’s rights and yours.

C.  You’ll find friends who don’t judge your lack of knowledge and who applaud your commitment to your child and your determination to get the education he should have.  You’ll find your nearest Parent to Parent group (go to http://www.p2pusa.org).  You’ll gather people from these groups and who know your child and you’ll never go to another IEP meeting alone.

D.  You’ll watch your child’s skills and abilities grow and increase as the IEP guides everything toward college readiness.  If you’ve never been to college, don’t worry about it.  Lots of people have never been to Kansas City or Albuquerque or Manhattan, but there are maps.  We can get there.  The IEP is the map for your child’s college readiness.

E.  You’ll realize this isn’t a job any family does alone–indeed it truly takes a village.  So you’ll do what your child must do.  You’ll ask for help when you need it and you’ll share when others need what you know or can do.

We didn’t ask for a child with disabilities, but now that we have one, we find the challenge isn’t just to our child.  The challenge is for the entire family, for the people who work with your child.  You are your child’s cheerleader, parent, case manager.

And who is cheering for YOU?  I AM!  YOU CAN DO THIS.  WE CAN DO THIS.  ONE STEP AT A TIME.

It’s April, and May is coming.  Figure out what your child needs for the next academic year; find your helpers.  Post your success here in comments.  We’re looking for them!

 

 

 

Wait for Open House

Now we’re in the time of the school year when schools have Open House. Many districts suggest that teachers don’t have individual conferences with parents until Open House. This is because the beginning of a school year is the most hectic time of the year and teacher conferences are very inconvenient at this time. However, good-hearted people who see a child’s needs will make time–and districts sometimes attempt to “protect” their staff from such inconvenient “intrusions.” When you have a child with unique and pressing needs, this is hard to hear and harder to live with. There are children whose needs simply cannot wait. If you can’t get anyone to listen to you or accommodate your child’s urgent needs, here’s a way to get noticed now.

1. Call for an IEP meeting to be held immediately. These meetings are costly and if there is a way to take are of problems without the expense, it makes sense for administrators to listen and work with you. Call for the meeting and claim, “XYZ School is not providing FAPE for my child and an immediate IEP meeting is required.”

2. When an administrator tries to make you wait, explain the danger to your child. “My child’s emotional status is deteriorating, and he needs help immediately. Neglect is tantamount to abuse at this point, and I really don’t think you mean to be abusive. I’d be willing to skip the full IEP meeting for now if we can just talk and get something in place to get us through this time period.”

This strategy tells them you are serious about your child’s needs, that your child is in serious need of accommodation, and that you know you can call for the full IEP meeting. If it is really bad, you can call for an emergency IEP meeting. They will know you know this, too. So, it should get things moving.

If they only provide lip service, you can go to the school office to ask for the principal’s full name–including middle name–to put on your complaint to the superintendent–or if you are already dealing at that level, it would be for your complaint to Office for Civil Rights. You don’t have to make the complaint if knowing you would do this moves them.

Be nice. You don’t really want to have to make a complaint, and you don’t want to make bad blood where there has been none. But you do want them to move to help your child, and if this is what it takes, so be it. But as you get the job done, explain to them that you did ask when there was nothing “threatening” in the picture, and they ignored you. You really wish that hadn’t happened, because we “can’t ignore what can’t be ignored if it is for a child who is missing his educational opportunity and can’t rush to make it up later.”

Be generous with your thanks, “especially when you are so busy with this time of year,” and follow it up with thank you notes that you request to be placed in each participant’s personnel file.

Next time they will hear you the first time and understand the urgency of your request. Because the result is a good thing in their personnel file, there should be no resentment even if they don’t agree with your feelings of urgency. If you are quick, direct, in and out, the interruption will be minimal and the results will be satisfying.

Now you can do it. Go advocate for your child!

Evidence In Cum Files

Hello, Parents and Advocates, Teachers, and Kid-Helpers everywhere,

Today is in that odd block of days when some school districts have not yet begun school and others are in full swing.  It is the busy time of the year for teachers who suddenly have a new crop of students they don’t know and about whom they know nothing.  It’s all learning all the time for all the people in a classroom these days!

Teachers, you are busy, but you really, really, REALLY need to take a few moments to listen to parents of your special education students, especially if you are a non-SpEd teacher.  What parents can tell you can relieve headaches, speed your paperwork, and improve your classroom management.  Not kidding, here.  Parents know things your peer from last year knew, used, and appreciated.  To ease their child’s way, they want to pass that information on to you and they should not be asked to wait until you’re dying of exhaustion 6 weeks later at Open House.

As a teacher, you don’t want to pick up on someone else’s biases about a child, but you need to proceed knowledgeably–and without information from the cum, the IEP or 504 plan and the parents, you are not exactly educated in what you need to know to be an effective teacher for these children.  The IEPs and 504 plans are available only on a need-to-know basis, and as a special education child’s teacher, you are THE ONE who needs to know what is on that IEP or 504 plan.  You do NOT need anyone’s permission to see it.

Parents, I know we all want to talk endlessly about last year and this new year and our children and their accomplishments, but busy teachers need the Condensed Book–the Comic Book–well, really at first maybe the Comic Strip is enough for starters.

For behavioral issues, concentrate on the most important issues and let little things wait for a couple of weeks. “Johnny has this, it makes him do that, and the best way to handle it at school has been….” “Annie is obsessive, and if you don’t give her time to…. she simply shuts down.  Then she agitates until you can’t do anything with anyone else until she gets settled again.”  “Oli doesn’t always pick up on general instructions to the class.  He needs you to speak directly to him if you see that he’s not on track.  It’s not that he’s unwilling–it’s that he doesn’t always focus enough to know general instructions are for him, too.”  No further discussion is necessary unless the teacher invites it.

If dealing with chronic illness and medication needs, bring a current doctor’s note about how medication and symptoms should be managed during school hours and give copies to each teacher, the principal, the school nurse, and give one specifically for inclusion in the cum.   Tell the principal that you’ll be following your child’s progress closely– both medically and academically.  Make sure everyone who needs it has information about how to contact you in an emergency.

Advocates, we’ll soon be getting complaints about how last year’s IEP doesn’t work anymore or inappropriate placements, so be ready.  Do you have your school directory handouts about school hierarchy and staff updated and ready to copy or e-mail or have you updated your general parents’ e-mail about this? Have you met the new administrators you’re most likely to deal with in the upcoming year?  Are you up-to-date with how the school administration plans to deal with bullying, drugs or guns on campus, teacher abuse of students, students’ physical contact with teachers, etc. and where are the policy and procedures for these located so you can refer parents to them?  What about staff cuts due to budget cuts–duties and responsibilities move all over the place.  Do you know who is handling what in SpEd these days?  Here’s where buddying with someone in administration is helpful.  If you don’t have such a “buddy”, find one.  Even if the general administration tone toward advocates and parents is unfriendly, individuals in the system can be very helpful and glad to be of service. (Parents, you can do this, too.)

Everyone–whoever has access to the cums–have you checked it for progress, obstacles to progress, triggers to trouble, avoidance strategies, patterns that cause concern, etc?  There is a wealth of information in cums beyond just the forms.

Forms will tell you:

if there is a pattern of student behavior that indicates the time of medication administration isn’t right

if a certain person is always involved in conflicts, and sometimes how that happens

if a child’s behaviors function to promote learning or don’t

if a child is avoiding something critical

if a teacher is trying to move mountains to find your child’s key to learning

if an administrator is diligent or lax about keeping documentation in order

if certain staff members appear to “have it in” for a student

if a student seems to be “going after” a staff member

if a student is or is not successful in presentations done in certain learning styles

if a student is being treated unfairly

if staff members need training

if administration members need training

If school staff review cums at the beginning of every school year to pick up on what worked at the end of the previous year and listen even briefly to parents of SpED students, opening days and weeks will go more smoothly. (Yes, I know, it’s about accommodations and FAPE, too, but we tend to overlook what works when it gets frantic–and it trips us up and makes things worse!)

If parents review cums at the beginning of every school year to assure that all the information that should be there IS there, the school will have the resources it needs.

If advocates have “oiled” their relationships with school staff and administration so the “gears” will be ready to move when needed, then we are good to go.

Parents, not all of us are wealthy, but when we need to get a teacher’s attention at this time of year, if you get it, use a little money to show your appreciation for the effort that requires.  If you can only spare a dollar, buy a few stickers the teacher can use for the students, a few pencils or pens, or anything usable in class.  Teachers spend a lot of their own money on our students’ needs and if you can give the smallest thing, your teacher will notice and remember that you might be an ally and therefore merit her attention. Then do nothing to spoil that impression!  And don’t forget to use your magic Thank You words–teachers need to hear them.  You could also write thank you notes to those who help you–to be included in the cum.  Can you imagine the different it makes when someone who is grumpy and upset about a lousy day is going through yet another set of troubles and finds a thank you?  Evidence of appreciation should be liberally spread around, even as a note in cum files.

Teachers, too few parents become involved with their children’s education, their teachers, the school.  No day is ever too busy to say “Thank you for thinking of me (the class, the school, etc.)” Our children are the tough ones, and too many of us don’t get many rewards from non-family members for being their parents, trust me!

Advocates, we owe as much thanks as anyone else, and because it isn’t our child, we might forget to say the words out loud.  Here’s my shortest story.  Once I almost walked out of a tough IEP meeting without actually saying thanks.  I stopped by the door and turned around.  “OUT LOUD,” I said rather loudly.  People stopped talking and looked at me like I was a bit crazy (they’re probably right).  “Out loud.  I was walking out of here thinking how thankful I am to all of you for caring about these children, your work, what we do, but I didn’t say it.  So now I’m saying it.  OUT LOUD.  Thank you.  Thank you for caring.”

You will never know how bright the rainbow of smiles was that went around that room.  It was the best-received thank you ever.  And I could joyously be seeking another like it for the rest of my life.  You look for it too.  I hope you find it soon!

 

 

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.

Advocacy Tips: 2-Focus On The Facts

Hello, Parents!

Sometimes when we need to advocate for our child’s FAPE, we are doing so because schools are not doing all they could or should be doing.  In that case, we parents feel a deep sense of betrayal.  We expect that people who take a job working with children will do what those children need without being asked, told, or forced.  The bureaucracy of a school system sometimes prevents that, not all school staff are as generous as we would like them to be, and not all school staff know what our children need.  The sense of betrayal is often accompanied by a lot of anger and a desire to blame someone.  Perhaps those are a natural response to our unmet expectations, but we can’t allow ourselves to be caught in the trap of our emotions.  Emotions don’t think, reason, or plan, and they can wreck our case if we don’t manage ourselves properly.

When advocating for your child’s FAPE, FOCUS ON THE FACTS.  Your best and most effective advocacy statements will start like this.  “My child needs….”  Follow this with a statement of facts about what your child needs in order to access and benefit from his education.  Here is why this works.

First, schools are not there to give parents what they want, so statements like, “I want my child to have ….” are ineffective.  IDEA, ADA, and Section 504 say nothing about granting parents’ wishes.

Second, schools do not have to give the cadillac version of anything.  If a skate will get your child where he needs to go, in the eyes of the law, a skate will be sufficient.  We have to get brutal with ourselves and admit that sometimes a skate really is all that is needed.  There are strategies to use if more than a skate is needed, but stick to the facts and use them as your tools.  You may know that your child needs something more than a skate, but you must present that fact along with solid evidence (more facts), not with emotionality.

Third, even if there has been wrongdoing in your child’s case, dwelling on it will not advance your child’s education or get the IEP corrected.  Facts will.  Facts will tell what your child needs, and IDEA, Section 504 and ADA all support meeting a child’s educational needs.

The most powerful thing you can do is to say, “My child needs…” because it triggers everything in the law to give your child an equal opportunity to learn and equal access to his education.

It is enough to focus on the facts and use them for your child’s advantage because you have some of our nation’s best laws to back you up.