"Is My Child with ADHD / ADD Entitled to a 504 Plan?" It Depends.

1 Comment: "Is My Child with ADHD / ADD Entitled to a 504 Plan?" It Depends.

1. While this article addressed the right to FAPE as established by federal statute, it excludes details included in a DOE Office of Civil Rights “white paper” that while not having force of law, is a Letter of Significant Guidance, for all districts obligation to IDENTIFY and ENSURE “regular or special education, related aids and services, or supplementary aids and services” to ensure FAPE for all students. (U.S. Department of Education, Office of Civil Rights. Students With ADHD and Section 504:A Resource Guide. Located at http://www.es.gov/OCR).

   The July 2016 document delineates why the DOE considers the mere inference that a child may have add/ADHD based on the observation or informal evaluation of child’s performance by ANY professional working in the public school system, who regularly observes or interacts with the child; has reason to suspect the behavior demonstrates the possibility that add may be involved; triggers the requirememt that there be an official evaluation of that child and the existence of ADHD.

   In addition, and most relevant too this article, the DOE, OCR Dear Collegue Letter includes a 35 page documemt “Students With ADHD and Section 504:A Resource Guide”. The supplement delineates the legal reasons that a diagnosis of ADHD presumptively satisfies both prongs required for making a disability determination for children they educate. The OCR states that a determination that the student has any type of add or ADHD satisfies that a student has an impairment. And the ocr’s position is that absent evidence to the contrary a student who is diagnosed with ADHD is presumed to possess substantial limitations in one or more major life activities. As such the OCR holds that the diagnosis of ADHD is evidence that a student may have a disability. The following quotes from the document delineate the reasons that kids with a diagnosis are presumed a member of the class protected by federal statute.

   “Because Under section 504 FAPE is the provision of regular or special education and related aids and services that are designed to meet individual educational needs of students with disabilities as adequately as the names of students without disabilities are met and that satisfy certain procedural requirements related to educational setting evaluation and placement and procedural safeguards.”

   “Americans with Disabilities Act Amendments Act clarified a broad scope and definition of the term disability more students with ADHD are now clearly entitled to the protections under section 504…further a diagnosis of ADHD is evidence that a student may have a disability. OCR will presume unless there is evidence to the contrary the a student with a diagnosis of ADHD is substantially unlimited and one or more major life activities”

   “Section 504 provides a broad spectrum of protections against discrimination on the basis of disability including one key aspect on which this guidance focuses the right to a free appropriate public education (FAPE). All elementary and secondary school students who are individuals within disabilities as defined by section 504 and need FAPE are entitled to FAPE.”

   Based on the white paper and guide, along with ADD symptoms that create substantial challenges that are individually specific features inconsistent with developmental level and at that negatively impacts directly on social and academic activities. For an attentive add one such qualifiers often has difficulty sustaining attention and tasks has difficulty remaining focused during lectures conversation or lengthy reading.

   Some examples from the ocr’s paper with regard to major life activities are reading thinking and functions of the brain AND concentration (aka ability of sustained mental focus and attention). They are clinically identified features associated with a diagnosis of Attention Deficit Disorder.

   Therefore, a diagnosis of ADD/ADHD, absent evidence to the contrary, “The OCR will presume thar a student with a diagnosis od add/ADHD is substantially lited in one or more life activities.” As such, merely informing the school of a diagnosis of the condition made by a qualified professional OUTSIDE the educational setting. And absent their own evaluation to the contrary, said diagnosis is sufficient for the DOE OCR TO PRESUME (and that the school must as well) the student is elegible for regular or special education, related aids and services, as provided by federal statute.

   This document is one of the most powerful tools to use in gaining accomodations for ADHD students. Because it eviscerates the common misunderstanding leading to the claim that a diagnosis is insufficient to alsatisfy the two prongs that trigger protection and assurence of a child recieving FAPE; absent the evaluation of the child by a neutral third party trained in testing for add ADHD. Which is EXTREMELY rare. So providing docs indicating a Professiomal ADHD Dx = right to 504. Unless the school contrary evidence.

   Peace