I have two school-age kids with ADHD and have recently obtained a 504 plan for my 7th grade daughter after being denied the previous 3 years. My son is also being evaluated now and I hope to finally obtain a 504 for him too after also being denied for 3 years. I'm posting this so that I may possibly help others in understanding how the ADAAA of 2008 has changed evaluation criteria and how you may now be entitled to services to which you may have been previously denied.

In previous years, we were denied because my kids were performing to academic standards. This was due to us working with the teachers each year to have them provide informal accommodations in the classrooms and that we were medicating the ADHD symptoms. These are both called mitigating measures. On January 1, 2009, the ADAAA was enacted and changed several criteria in evaluating disabilities. These include an expanded set of life skills, such as thinking and communicating. Our school district, in the past, strictly used learning as a life skill and their measurement of the affects of the disability was only performance to academic standards. The other substantial change with the ADAAA of 2008 was that mitigating measures, such as informal accommodations and the effects of medications, should not be considered during an evaluation.

We found that the school district had unlawfully denied services to us during our evaluations in 2009 and 2010. They disregarded the new law, and its changed evaluation criteria during their evaluations. The evaluation team lead stated to us that "until they were told differently, they would follow the old guidelines." They made this statement after I had informed them in writing of the changes affected by the new law and even pointed to new guidelines published by our state's Office of Public Instruction.

With this last denial, and my documented communication with the school district, I filed an official complaint with the US Dept. Of Education, Office for Civil Rights. OCR evaluated my complaint and opened an investigation of the school district for disability discrimination. We also reapplied for evaluations for special services for both kids at that time. After the OCR complaint, I retained an attorney to represent us during meeting with the evaluation teams. It was important to retain council after filing the complaint as OCR will not open an investigation if you already are represented in your negotiations with your school. The total hours that my attorney has spent on this is very minimal - a couple hours. The OCR investigation was the incentive for the school district to follow the law.

During this last evaluation, the school disregarded the effects of the informal accommodations my daughter was receiving. She had also stopped her medication for some time due to undesirable side-effects. This time they found that she did have problems with major life skills such as communicating and thinking and they disregarded the mitigating measures she was receiving. Finally, they followed current law and she has received a formal 504 program.

My son has just had his testing finished as part of the evaluation and we are communicating with the school ensure that they will follow current law with his evaluation too. He is in 4th grade so this evaluation team is different than the one that gave my daughter the 504. This team is also lead by the psychologist who did not follow the law during the evaluations in the past years. My son is also taking medication.

This evaluation will have to disregard the mitigating measures of not only the informal accommodations but also the effects of his medication. That would have required the school district to come up with some sort of valid methodology to disregard the effects of the meds. To make matters simpler, and to ensure that they had a chance to see what my son's ADHD symptoms were like without his meds, we withheld my son's medication during the period of his evaluation. The school's attorney questioned us on this decision and made suggestions that withholding the meds would invalidate the results of the evaluation because of withdrawal effects. After consulting with my son's physician and the manufacturer of the drug, we found that it had a half-life of 9 hours and that there would be no therapeutic benefits or symptoms of withdrawal after 4 days. We withheld his meds 5 days prior to any testing.

This seems to have countered the school attorney's concern of medication as a mitigating measure. The school attorney now has raised an issue that my attorney says is being raised in other similar cases in the country. He says that even if my son is found eligible for a formal accommodation by disregarding the effects of mitigating measures, the school is not required to disregard mitigating measures when providing accommodations. The implication of this is that he may be given a formal 504 plan, but that plan could be devoid of anything. The circuitousness of this logic escapes me. It seems to be a way to circumvent the entire intent of the new law.

In the next couple of weeks, we will find out if my son qualifies, and if so, whether any accommodations will be given with a formal plan. In the meanwhile, the district has notified OCR that they will voluntarily make remedial actions to become compliant with the ADAAA of 2008. If my son is again denied, the only recourse I could see is maybe initiating a class action ACLU investigation for disability discrimination across the entire district during this last 2+ year period. I really would not want to do this but I feel that I am my children's only advocate and will do anything to help them.

So there it is - I hope my story may give you a little insight of what's going on with schools and the ADAAA. If you have been denied for services since the beginning of 2009, you might be able to reapply based upon the new guidelines and the new measurements of Life Skills and Mitigating Measures.

Good luck to you and your children.

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