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First, a brief word about Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Individuals with Disabilities Education Act (IDEA). Section 504 is a civil rights law that protects individuals with disabilities from discrimination for reasons related to their disabilities. Section 504 ensures children with disabilities equal access to an education. It defines an appropriate education as one that meets that needs of a disabled student as adequately as it meets the needs of students without disabilities. By contrast, IDEA is an education law whose purpose is to provide special education to a child with a disability that adversely affects educational performance. It defines an appropriate education as one that addresses the unique educational needs of an eligible student and from which the student is entitled to gain educational benefit.
A child who has ADD/ADHD may be entitled to special education under IDEA. This entitlement would be implemented through an individualized education program (IEP). If the disability does not adversely affect educational performance a child is not eligible for special education under IDEA but often will be entitled to protection under Section 504 where it has to be shown that the disability, a physical or mental impairment, substantially limits one or more of such person’s major life activities. “Learning”, education, is a major life activity.
Before referring a child for evaluation, before even considering IEP vs. Section 504, a pre-referral strategy can be considered. A teacher can make accommodations, etc., and see if they work before eligibility for either an IEP or Section 504 plan is evaluated. This is often referred to as "building services."
There are two questions that have to be answered to determine whether a child is eligible to receive special education and related services under IDEA, and, consequently, an IEP to manage that special education. These are found in the definition of a “Child With A Disability”. First the disability has to be found to exist, and then by reason of this disability, that the child needs special education and related services,
Having ADD/ADHD does not automatically make the child a “Child With A Disability”. ADD/ADHD, when it is disabling, is generally considered a disabling condition that falls under the category "other health impairments" (OHI). OHI, as defined in the federal regulations, “means having limited … alertness, including heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that ... (i) is due to chronic or acute health problems such as ... attention deficit disorder or attention deficit hyperactivity disorder...; and (ii) adversely affects a child’s educational performance." Thus, built into the second part of OHI is the second prong of the eligibility requirement; that the child needs special education.
Section 504 Plan:
Alternatively, if this child with the disability is not entitled to receive special education because he would not receive any benefit from it and thus does not need it, he or she might still be entitled to some level of special education or accommodations under Section 504.
My son has ADD/ADHD. Doesn't that mean that he should be entitled to an IEP (individualized education program) or at least accommodations under Section 504?
Law Offices of Michael D. Kaufman, PLLC