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Extra Help at School - Knowing Your Child’s Legal Rights

ADHD is considered a disability, therefore it’s important for parents to know the legal rights of their ADHD child in school. The Americans with Disabilities Act (ADA) and Individuals with Disabilities Education Act (IDEA) state that schools are required by law to accommodate any student with a disability. Here are some key facts about your child’s rights:

  • Schools categorize ADHD as a “medical disability.” Your school may require a doctor to fill out a form to verify your child’s ADHD diagnosis. Your family doctor is likely already familiar with this form.
  • Schools must actively identify, locate and evaluate all children with disabilities, regardless of the severity (this is called “child find”). If a school knows a child has a disability and ignores it, they may be breaking the law.
  • Schools are required to place your child in the least restrictive educational setting possible. This means schools must do all they can to allow a child with a disability to be part of the same classes and activities as all the other students in the “regular” educational setting.
  • Schools are required to pay for all education, assessments and services essential to accommodate the educational needs of a disabled child, at no cost to the family. This is part of what’s called “free appropriate public education” or FAPE.

Requesting an IEP or 504 Plan

Sometimes students with ADHD need more help than a typical education system can offer. It’s very common for a child with ADHD to also have a learning disability. If they do, it’s important to find out what learning disability they have. Proper intervention comes from an accurate assessment. If your child continues to struggle in school and current strategies are not working, consider requesting an Individualized Education Plan (IEP) or 504 plan.

An IEP is a written, detailed legal assessment and intervention plan for children experiencing disabilities (such as ADHD). Qualifying for an IEP involves many different tests administered by the school, and the process usually takes 1-3 months. The results of these tests help parents and school staff to identify what learning problems or learning disabilities your child may have. If your child qualifies for an IEP, a detailed intervention plan will be developed by the parents and school staff—teachers, counselor, school social worker, school psychologist, nurse, and other support staff. Having an IEP often means the child will receive extra time with school staff, will be given extra resources, and will be given special accommodations to help them learn. Some parents worry that having an IEP means their child will be pulled away from their regular class all day long. If your child is able to learn in their current classroom with special accommodations, they have a right to stay in that classroom.

A 504 plan is an accommodation plan to help students with disabilities. Basically, it is a significantly condensed version of an IEP. The term “504” is used because the plan comes from Section 504 of the Americans with Disabilities Act. In a 504 plan, a detailed assessment is not given to your child. All that is required is documentation from a medical doctor that your child has ADHD (a disability) and agreement from both the school and parents that the ADHD is interfering with their education. A 504 plan can be implemented quickly (within days). Simple accommodations in the 504 plan can include allowing:

  • Extra time on tests and quizzes
  • Reduction of schoolwork sent home
  • Preferential seating (such as the front of the class)

If your child already has a 504 plan and it doesn’t seem to be working, it may just need to be modified. If modifying the 504 plan still doesn’t help, request that your child be assessed for an IEP instead.

School Discipline

Discipline issues can greatly impact an ADHD child’s attitude and ultimate success in school. There are laws written in the IDEA that protect a child from being disciplined for violating a school’s code of conduct if the behaviors were related or caused by a child’s disability; or the legal term, “a manifestation” of the child’s disability. In order for a child to have these protections, the school must have knowledge of the child’s disability. The school can remove a child with disabilities to an alternative setting or give suspension for no more than 10 school days. If the removal is more than 10 consecutive days or if the child has been removed for a series of days that equal more than 10 days in the same school year for similar behaviors, this can be considered a change of placement. If the removal has been more than 10 days (either in a row or over time during the school year) the school must have a team meeting, with the parents included, to determine if the child’s violation of the school’s conduct policy was “(1) caused by, or had direct substantial relationship to, the child’s disability; or (2) if the conduct in question was the direct result of the LEA’s failure to implement the IEP” (43CRF 300.530- Authority of school personnel). “LEA” stands for local education agency. If during this meeting, the team finds that the behavior was a result of the LEA’s failure to implement the IEP, they must take “immediate steps to remedy those deficiencies” (43CRF 300.530). If the behavior is found to be a manifestation or caused by the child’s disability, the IEP team must implement a functional behavior assessment and implement a new behavior plan (or modify an existing behavior plan) and “return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavior intervention plan.” (43CRF 300.530 (f) (2). There are a few exceptions. The school does have the right to remove a child with disabilities, regardless of their disability, for no more than 45 school days for behaviors related to weapons, illegal drugs or serious bodily injury of another person.

In regard to the school notifying the parents:

“(h) Notification. On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the LEA must notify the parents of that decision, and provide the parents the procedural safeguards notice described in § 300.504.” (43CRF 300.530).These are just a few highlights of the law. It is advised that the parent consult or hire an attorney to advocate for the rights of their disabled child if there is ever a removal or change of placement related to their child’s disability. ADHD is considered a disability and an ADHD child has special rights to protect them in public schools.