Issue:

Federal law requires that children with ADD be provided a free and appropriate public education. As it has only recently been clarified that these children are eligible for special educational services and given the lack of understanding in some quarters regarding ADD, many children with ADD may not be receiving required educational services.

Background:

•Both Public Law 94-142, Part B of the Individuals with Disabilities Education Act or IDEA, and Section 504 of the Rehabilitation Act of 1973 require that school systems make a "free and appropriate public education" available to eligible and qualified children with disabilities. Special education and related services must be made available to any child with a qualifying disability when the disability impairs the child's educational performance.

On September 16, 1991, the U.S. Department of Education issued a Policy Clarification Memorandum expressly recognizing children with ADD as eligible for special education and related services under Part B of the IDEA and Section 504.

The Department concluded that children who present only with ADD are eligible for services under Part B of the IDEA as they fall within the law's "Other Health Impaired" category.

The Department's action responded to the fact that many children with ADD were not receiving a free and appropriate public education, while many others appeared to be receiving assistance unrelated to their specific ADD needs.

Part B of the IDEA not only requires that public schools provide a free education to children with disabilities, the law also sets parameters for determining an appropriate education. Such education must include special education and related services specifically designed to meet each child's unique needs through an individualized education plan (IEP). The IEP must reflect the nature and severity of each disability present and specify aids and services to be provided to meet the child's unique needs created by each disability.

Part B further requires public schools to meet a disabled child's needs to the maximum extent appropriate in a regular classroom with non-disabled peers. If this is not possible, the

" schools must consider a range of options including but not limited to a mix of regular and special education classroom services; full-time special education classes in a regular public school; a private school; and home instruction. "

• Part B of the IDEA requires public schools to identify and promptly evaluate, using a multidisciplinary team, children having or suspected of having a disability to determine the child's need for special education and related services at no charge to parents. •Section 504 of the Rehabilitation Act prohibits discrimination against otherwise qualified persons with disabilities in federally assisted programs and activities solely on the basis of their disabilities.

All public schools that receive federal funds must comply with Section 504 by addressing the needs of children with disabilities as adequately as the needs of non-disabled children. Section 504 sets similar parameters to Part B of the IDEA for determining an appropriate education. •Section 504 protections extend further than the IDEA because 504 does not consider a need for special education as an eligibility requirement, as is the case under Part B of the IDEA. Rather, Section 504 applies to any person who has a "physical or mental impairment which substantially limits a major life activity."

The Americans with Disabilities Act (ADA), enacted in 1990, provides another legal means of requiring all educational institutions, other than those operated by religious organizations, to meet the needs of children with ADD. Title II of the Act, applicable to all public schools, prohibits the denial of educational services, programs or activities to all students with disabilities and the discrimination against all such students once enrolled. Title III of the Act applies these same requirements to non- sectarian private schools.

In considering the ADA's applicability to children with ADD in public schools, it is quite likely that courts will look to the U.S. Department of Education's policy guidance on Part B of the IDEA and Section 504 of the Rehabilitation Act as they relate to ADD.

Copyright © 1995, CH.A.D.D.

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