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Educational Rights

ADHD can affect learning and development from a very young age. Child Find, public school systems, some private schools and even colleges and universities are required to help students with ADHD and other disabilities rise to meet educational challenges.

Children with all three presentations of ADHD, predominantly inattentive, predominantly hyperactive, and combined presentation, may face many challenges in a traditional school setting and may qualify for educational services and accommodations. Two laws in particular, the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973, are specifically designed to ensure that students with disabilities receive equal access to education and school activities. Both acts guarantee a free and appropriate public education (FAPE) to all children, regardless of ability. From simple accommodations to special education services in typical classrooms with supplemental services, the laws are in place to provide valuable services to eligible children with disabilities.

Some children qualify for educational supports under IDEA, other under Section 504, and sometimes both laws apply. The infographic below  helps describe the differences between these two laws, how eligibility is determined for children with ADHD, and the types of support received under each.

IDEA

The Individuals with Disabilities Education Act (IDEA) is the federal law that provides special education and needed related services for an eligible child with a disability to benefit from the child’s education. Services received under IDEA are often referred to as “special education.” An Individualized Education Program (IEP; sometimes called an Individualized Education Plan) is designed specifically for each eligible child with disabilities to provide a free appropriate public education (FAPE).

Who is Eligible?

A student is eligible for services under IDEA if he or she is identified with a qualified disability and, “by reason thereof,” needs special education and related services. A student with ADHD may qualify if the ADHD seriously impacts the child’s learning and/or behavior at school. Some children with ADHD will qualify for services under IDEA while others may not; this depends on the degree of impairment.

To qualify for IDEA, a child must meet the criteria in at least one of 13 disability categories. Often children with ADHD will qualify under the Other Health Impairment (OHI) category. They may also qualify under Specific Learning Disabilities (SLD) or Severe Emotional Disturbance (SED).

Eligibility for IDEA must be determined by a qualified team that is made up of many different professionals including the child’s teacher(s), school psychologist(s), principal, parents and other appropriate school personnel. This team should use information from several different sources including input and ideas from parents, notes from doctors if available, notes and progress reports from teachers, the child’s past academic and behavior records, test results (such as IQ and/or other formalized testing assessments), as well as anything else that might be important.

What Does IDEA Provide?

When a student with ADHD qualifies under IDEA, the student receives an Individualized Education Program (IEP). The IEP is a written document that includes specific goals for the child based on the child’s current level of performance. The IEP should state the educational placement, and it should specify which services will be granted, when they will be provided, how long they will last, and how frequently they will occur. It should also specify the way in which the child’s progress will be measured.

IDEA says that children with disabilities must be taught in the regular classroom as much as possible with appropriate related aids and services. Removal from the regular education environment should only occur when the severity of the disability is such that even with aids and services, the child or other students cannot learn. This is called the least restrictive environment (LRE) clause. Therefore, not all children who receive services under IDEA are placed in special education classrooms. Many stay in their regular classroom with appropriate modifications and/or related services.

Discipline under IDEA

Students who have an IEP are also entitled to special procedures that must be followed if they are suspended or expelled. Even when suspended or expelled, children covered under IDEA are guaranteed a free appropriate public education (FAPE).  Schools are allowed to suspend or expel any student, including a student with a disability, for up to 10 school days per school year.

After 10 days, a meeting (called a manifestation determination) must be held for a student with an IEP to see if the behavior was caused by or had a direct and significant relationship to the disability or if the behavior was a direct result of the school’s failure to implement the IEP.

It is important to note that any student who brings a weapon to school; who attempts to buy, sell, or carry illegal drugs on school property; or who causes serious bodily injury to self or others may be immediately moved to an alternate educational placement (AEP).  Schools must then conduct a manifestation determination.  If it is determined that the behavior does have a link to the student’s disability, then the student may remain in the AEP for up to 45 school (not calendar) days. If no link is found, then the student may be removed for the same number of days as a non-disabled student.

 

Ask the Expert Webinar: Department of Education Office of Civil Rights Guidance on Section 504 and Students with ADHD

Section 504

Section 504 is a federal civil rights statute that says schools cannot discriminate against children with disabilities. Schools that receive federal dollars must provide eligible children with disabilities with an equal opportunity to participate in all academic and non-academic services the school offers. The school must also provide appropriate accommodations based on their individual needs.

These accommodations are often simple changes that can help the child with the disability. Sometimes these accommodations include special services such as using a tape recorder for note taking, giving the student a quiet place to work, or access to a computer in school for written work. Students who are eligible to receive services under Section 504 receive instruction through the regular education curriculum and at the same level as their peers without disabilities. Students under Section 504 must also participate in state required assessments.

Who is Eligible?

A student is eligible for Section 504 if the child has a physical or mental condition that substantially limits a “major life activity.” Major life activities for a child in school include reading, concentrating, thinking, communicating with others, walking, talking, breathing, caring for oneself, etc.

To qualify under Section 504, a child’s disability must be serious enough, or “substantially limiting,” that the child needs specialized services or accommodations.  All determinations of substantial limitation must be made without regard to the “ameliorative effects of mitigating measures.”  This means that the question of whether or not a child has a “substantial limitation” in a particular area is answered before, and not after, any intervention for that limitation is implemented. “Mitigating measures” includes such things as medication, assistive technology, learned behavioral modifications, psychotherapy, and/or reasonable accommodations.

What Does Section 504 Provide?

If a child is determined to be eligible under Section 504, the school must develop a Section 504 Plan.  The plan must include appropriate accommodations, evidence-based interventions, and/or related services that are also scientifically or research-based.  The plan must provide the eligible child with an equal opportunity to succeed based on the child’s individual needs when compared to same age, non-disabled peers.  This is defined as a “free appropriate public education” (FAPE) under Section 504.

Accommodations should be documented in the written Section 504 Plan. Go to Classroom Accommodations to learn more and see examples of appropriate accommodations.

Discipline under Section 504

Students with disabilities under both Section 504 and IDEA are provided with special procedures in situations involving disciplinary removals from their regular educational setting.  Students with a Section 504 Plan may be suspended or expelled in the same manner as any child without a disability for up to 10 school days.  After removal of 10 consecutive days, or a pattern of short term removals amounting to 10 days or more, a meeting (called a manifestation determination) must be held to determine if the behavior subject to disciplinary action is linked to the child’s disability.

If there is a direct link between the behavior and the disability, the child may not be sent to a disciplinary or alternative education placement.  If there is no link between the behavior and the disability, the child may be disciplined in the same manner as any other child without a disability.  There are two exceptions to this rule:

  1. If a child who is being served by Section 504 is caught “currently engaging in the use of illegal drugs or alcohol,” the child forfeits all rights and procedural protections under Section 504, including the right to a manifestation determination, and may be disciplined in the same manner as any other child without a disability.
  2. A child caught in possession of a firearm in any manner may be immediately removed to an alternative education placement where a manifestation determination must be conducted within 10 school days.  If there is a link to the disability, the child may still be removed for up to 45 school days.  If there is no link to the disability, the child may be disciplined in the same manner as any other child without a disability.

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