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Is a Child with ADD/ADHD Eligible for Special Education?

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"My son has ADD. Our doctor told us to request special education services from the school. When we made this request, the school said he is passing so he is not eligible for special ed. I am confused!"

Many readers write to ask if children with disabilities, including children with ADD/ADHD, are eligible for special education services.
For many, the answer is a clear "Yes!" For others, the answer is a clear "No!"

This is why we tell parents and educators that "YOU need to read the law for yourself – you may need to read it several times – until YOU understand what the law says and does not say. Do not rely on someone else’s interpretation of the law – you will often be misinformed or misled."

Look it Up!

Note: If you have our book, Wrightslaw: Special Education Law, 2nd Edition , you can read the statute and regulations and Pete’s commentary and analysis of these issues. Most of this information is also available in the IDEA 2004 section of Wrightslaw.

A Disability Does Not Automatically Qualify a Child for Special Ed Services

A child with a disability is not automatically eligible for special education and related services under IDEA. The key phrase is "who, by reason thereof, needs special education and related services."

To be eligible for a free, appropriate public education (FAPE) under the IDEA, the child must have a disability and must need special education and related services. For the legal definition of a "Child with a Disability," see pages 20-21, 49-50, 193-194 in Wrightslaw: Special Education Law, 2nd Edition or go to the Law & Regulations section of IDEA 2004 and read the definitions in Section 1401.

If a child has a disability and needs special education services, the child is eligible for special education services under IDEA. How do you know if a child needs special education and related services? Does the child's disability adversely affect educational performance? How?

Passing Grades

Although school personnel told the parent that her child is not eligible because the child was "passing," this is incorrect. Children who receive passing grades and advance from grade to grade can be eligible for special education. The IDEA regulations clarify that schools must offer a free appropriate public education to any child with a disability who needs special education, "even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade." (see IDEA Regulation 300.101, page 204 of Wrightslaw: Special Education Law)

Children with Other Health Impairment & Learning Disabilities

Most children who have ADD/ADHD are found eligible under the "Other Health Impairment" or "Specific Learning Disabilities" categories.

The legal definition of "Other Health Impairment means having limited strength, vitality, or alertness, including heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that ... is due to chronic or acute health problems such as ... attention deficit disorder or attention deficit hyperactivity disorder ..." (See regulation 300.8(c)(9), Wrightslaw: Special Education Law, 2nd Edition , page 194)

The legal definition of "Specific Learning Disability" did not change under IDEA 2004. (See regulation 300.8(c)(10), Wrightslaw: Special Education Law, 2nd Edition, page 194)

What About Dyslexia?

Schools often tell parents that they are not required to provide special education services to children who have dyslexia. Is this true? Open Wrightslaw: Special Education Law, 2nd Edition and turn to page 55. Scroll down to (30) Specific Learning Disability.

Under (30) Specific Learning Disability is (B) Disorders Included.

Do you see "dyslexia" listed? Yep! It's right after minimal brain dysfunction, the term used in the 1970's term for what we now refer to as "Attention Deficit Disorder." In fact, "dyslexia" has always been listed as a specific learning disability in the law.

Do you see why we tell parents and teachers that they must learn how to find answers to their question in the law - and not rely on what others tell them?


Eligibility of Children who May Have Specific Learning Disabilites

When Congress reauthorized the IDEA in 2004, they changed the requirements for eligibility and evaluations of children who may have specific learning disabilities. Schools "shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability ..." to find a child eligible for special education services. (Wrightslaw: Special Education Law, 2nd Edition, page 21, page 95-98, 240-245).

Discrepancy v. Response to Intervention Models

In IDEA 2004: Specific Learning Disabilities: Discrepancy v. Response to Intervention Models, we look at response to intervention or response to instruction (RTI) models, discrepancy models, and how the changes in IDEA 2004 may affect millions of children who have been identified with specific learning disabilities.

Section 504 Protections

If the child has a disability but does not need special education services, the child may be entitled to protections under Section 504 of the Rehabilitation Act. Section 504 is a civil rights statute that protects individuals with disabilities from discrimination for reasons related to their disabilities. To learn more about Section 504, read Chapter 7 in Wrightslaw: Special Education Law, 2nd Edition .

Your Game Plan

Learn What the Law Says

First, read the IDEA 2004 statute about "Evaluations, Eligibility, IEPs, and Placements" (Wrightslaw: Special Education Law, 2nd Edition , pages 92-107), including Pete’s extensive commentary.

Next, read the IDEA Regulations about "Evaluations and Reevaluations" and "Additional Procedures for Evaluating Children with Specific Learning Disabilities." (Wrightslaw: Special Education Law, 2nd Edition , pages 240-245)

Read the Commentary to the IDEA regulations. Here is a link to the Commentary about parental consent, eligibility, IEPs and Placements. Topics in the Commentary

Use Memoranda from the US Dept of Ed

Eligibility

In 1991, in response to the fact that schools were denying special education services to children with ADD/ADHD, the the Office of Special Education and Rehabilitative Services, Office for Civil Rights, and Office Office of Elementary and Secondary Education took an unusual step. They published a Joint Memorandum about Services to Children with ADD/ADHD. Print and read this Memorandum. It answers many questions about eligibility under IDEA, and clarifies the school's responsibility to provide services under IDEA or Section 504 of the Rehabilitation Act.

If you are having a disagreement or dispute with the school about eligibility, print several copies of this Memorandum and provide them to your school team. Most members will not be aware of the Memorandum. Administrators are more likely to be aware of it. If your team members have copies, you make it easier for the team to realize what their responsibilities are under the law.

Evaluations

If the school does not want to evaluate your child for ADD/ADHD, or claims that your child is not eligible because the child is "passing", you need to read the Memorandum, OCR Facts: Section 504 Coverage of Children with ADD.

This Memorandum was published by the Office of Civil Rights in 1992. It clarifies that schools must evaluate children who are suspected of having a disability, including ADD, after a request from the parent:

"Under Section 504, if parents believe their child has a disability, whether by ADD or any other impairment, and the LEA has reason to believe the child needs special education or related services, the LEA must evaluate the child to determine whether he or she is disabled as defined by Section 504 . . ."

If you are having a disagreement or dispute with the school about the requirement to evaluate your child who may have a disability, be sure to read
OCR Memorandum: Evaluation of Children Who May Have ADD/ADHD. Print several copies for members of your school team - most have probably never seen the Memorandum.

Use Wrightslaw as Part of Your Self Study Program

You will find dozens of articles, cases, references and other info about ADD/ADHD, other disabilities, IEPs, discipline, and parent advocacy on the Wrightslaw site. Where can you find this information?

The ADD/ADHD page has dozens of useful articles and resources.

Search! Every page has a search box. To find answers to your questions, type in terms that describe your question. If you want more information about eligibility of a child with ADD/ADHD, type in "Eligibility" and "Attention Deficit Disorder." A recent search using these terms brought up several articles, including:

From Emotions to Advocacy: The Parent’s Journey

Understanding Tests and Measurements for the Parent and Advocate


Revised: 08/07/07


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