What Are Children With ADD Entitled To In School?

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by Steve Glink

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What is their child entitled to under the law?

Dear Steve,

My son Ryan was diagnosed with ADHD when he was 5. His elementary years of schooling were very good. He enjoyed going to school, and had an aid to help him. When he reached 6th grade he had to go to a middle school. The transition was extremely hard for him. He received less help in school, and the curriculum was not adjusted for his level. At the end of the year the school and us both decided to home school Ryan. This also turned out to be very hard because both my wife and I work full time jobs now. We are in a bind because we cannot afford to properly home school him, and we do not want to put him back in a public school. We are also worried about his future. Can you please e-mail us any information on benefits or laws to help ADHD kids financially or with any other help of any kind.

Tom: Your e-mail to the ADDhelpline was forwarded to me for review and response. Before I respond, I must tell you that I am only licensed to practice law in Illinois. Your e-mail does not say what state you are from. This could be important because laws and court decisions vary from state to state (or jurisdiction to jurisdiction). Also, my response is based upon the information that you provided as well as my interpretation of the law to your facts. There is not guarantee that the court would accept your facts or my interpretation of the law. Finally, since we do not have an attorney- client relationship. my response should not be construed as legal advice. Rather, my response is intended to provide information to help you make future decisions.

There are several federal laws that may be applicable to your son's case. The Individuals with Disabilities Education Act (IDEA: 20 USC 1400, et. seq.) is the primary law here. IDEA requires the local school district to identify any student that may be eligible for special education and related services. To be eligible for assistance under IDEA, the child must have a disability that has a negative impact on his educational performance. You have the right to request that the school perform a case study evaluation (CSE) in order to determine if your son is eligible. I can tell you that under IDEA, kids with ADD or ADHD may be eligible under the other health impaired (OHI) category. There are many other provisions in IDEA to help the kids/parents.

Another federal law that may help you is section 504 of the Rehabilitation Act. Section 504 requires the school to make "reasonable accommodations" in the student's educational programming if he has a disability. The main difference between IDEA and section 504 is that section 504 does not require the negative impact component. The school must be a recipient of federal funds (most public schools are) to be bound by section 504. This law prohibits discrimination based SOLELY on the disability.

The Americans with Disabilities Act (ADA) is similar to section 504, except that it does not require the school to be a recipient of federal funds. The ADA does not require the discrimination to be "solely" based upon the disability. However, based upon recent decisions by the U.S. Supreme Court, the individual must be limited in his/her daily life functions to be within the protections of this law. Whether your son could claim protection under the ADA is a mixed question of law and fact.

There may be other state laws that could help you too. You should check your own state's school code and/ or human rights act for further information. You can also file a complaint with the U.S. Justice department, Office of Civil Rights (OCR) and/or Office of Special Education and Rehabilitation (OSER) if you think that your rights were violated.

Your e-mail was not clear as to whether the school initiated a CSE. If not, you should request that immediately. In Illinois, they have 60 days to complete the CSE and hold the meeting to discuss the results. If they refuse, you must file for a due process hearing. You should check with your state board of education on the procedures required to do that. After any staffing/meeting to discuss these issues, the school district is required to give you a written explanation of your rights. They must also tell you where you can get low cost legal assistance. You should also document everything that you (and they) do.

Above all, I suggest that you consult with an attorney who specializes in educational matters. Special ed. cases can be very complex. I hope that this was helpful. Please feel free to send another e-mail (steve@educationrights.com) or call me (847/480-7749) if you need further information or assistance. Good luck. Steve Glink