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Is there a simple test to diagnose AD/HD?
No; unfortunately, there is no simple test (like a blood
test or a short written test) to determine whether someone has AD/HD. This is
true of many medical conditions (for example, there is no "test" for a simple
headache, yet anyone who has had a headache knows it's real!).
Accurate diagnosis is made only by a trained clinician
after an extensive evaluation. This evaluation should include ruling out other
possible causes for the symptoms involved, a thorough physical examination, and
a series of interviews with the individual (child or adult) and other key
persons in the individual's life (for example, parents, spouse, teachers, and
others).
From the web page http://www.help4adhd.org
Find a doctor or mental health professional
Professional Associations will sometimes offer referrals or
provide directories. You may wish to contact:
American Academy of Child and Adolescent Psychiatry;
http://www.aacap.org/ReferralDirectory/index.htm;
American Psychiatric Association;
www.psych.org/public_info/choosing_psych
American Academy of Pediatrics;www.aap.org/referral;
American Academy of Neurology;www.aan.com/public/find.cfm,
(800) 879-1960;
American Medical
Association;www.ama-assn.org/aps/amahg.htm, 800-621-8335;
National Association of Social
workers;www.socialworkers.org;
American Psychological
Association;www.apahelpcenter.org/locator/, 800-964-2000;
American Association of Marriage and Family Therapy;
therapistlocator.net;
National Board for Certified Counselors;
www.nbcc.org/cfind.
The U.S. Center for Mental Health Services maintains a
directory of mental health services and resources in each state;
http://www.mentalhealth.samhsa.gov/databases, 800-789-2647.
If you cannot afford services or do not have health
insurance, please read the sections on Public Insurance and Public Benefits
Programs, or contact your state department of health or mental health to locate
a community mental health center near you.
The GLP do not endorse or represent products, services,
publications, medications or treatments, including those listed or advertised in
the Directory of Professionals, Services & Products.
What is Section 504?
"Section 504" refers to the section of the Rehabilitation
Act of 1973 which guarantees certain rights to individuals with disabilities,
including AD/HD. This federal law states that no person "... shall, solely by
reason of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance" (Sec. 504.(a)).
From the web page http://www.help4adhd.org
My child has been diagnosed with AD/HD; isn't he automatically qualified for
Section 504 services?
No. Although a formal diagnosis is a good first step, it
does not automatically mean your child will qualify for accommodations under
Section 504. Eligibility for Section 504 is based on the existence of an
identified physical or mental impairment that substantially limits a major life
activity. The diagnosis of AD/HD is not enough; his AD/HD must significantly
impact his learning or behavior.
From the web page http://www.help4adhd.org
I'm an adult; doesn't AD/HD only affect children?
No. Although it is most often diagnosed in children, AD/HD
is a lifespan disorder that affects individuals at all ages. Although there are
limited data on the prevalence of AD/HD in adults, it is currently believed that
the condition is found in 2-4% of the adult population.
What is FAPE under IDEA?
FAPE or Free Appropriate Public Education is the provision
of special education and services at public expense in accordance with an IEP
designed to help the child receive educational benefit. More on IEP goto
http://theglp.info/resources/sec-504iep
The school says my child needs Ritalin; where do I get it?
School personnel do not have the medical training necessary
to tell parents to place their children on medication. While teachers and other
school personnel play a critical role in identifying potential education
problems, they are not qualified either to diagnose a medical condition or
suggest specific treatments for addressing that medical condition.
In general, only a physician (M.D. or D.O.) who is properly
licensed may prescribe medications used to treat AD/HD (prescribing privileges
are regulated by state law for other professions, including nurse practitioners,
physician assistants, and, in one state, Ph.D. psychologists). Because AD/HD is
a medical condition, it should be diagnosed by a pediatrician, neurologist,
psychiatrist, psychologist, clinical social worker, or other properly licensed
mental health provider who has experience evaluating and treating individuals
with AD/HD. Because some symptoms of AD/HD may be symptoms of other conditions,
it is essential that you consult a trained professional and obtain a thorough
evaluation and formal diagnosis for your child before beginning any particular
course of treatment.
ADD, AD/HD, hyperkinesis? What is what?
This condition has been known for more than a hundred
years, but it hasn't always been called the same thing. In the past, different
labels have been used for what we now call attention-deficit/hyperactivity
disorder (AD/HD).
Why the change? The American Psychiatric Association
publishes the official guidelines for naming and diagnosing mental disorders.
This book (called the DSM, or "Diagnostic and Statistical Manual of Mental
Disorders") is regularly updated as scientists learn more and more. Research in
the 1970s and 1980s began to show there are different types of attention
deficit. Although they have major differences, the types are more alike than
different. Doctors began to see that the different types are all part of the
same major condition. In 1994, the DSM changed the name from ADD (attention
deficit disorder) to AD/HD because of the advances in research. There are three
types of this one condition called AD/HD. They are: inattentive,
hyperactive/impulsive, and combined.
Some doctors and mental health professionals still use the
term ADD. If this is your or your child's diagnosis, it most likely means you or
your child have the inattentive type of AD/HD. This is not the child who is
"bouncing off the walls" or "simply can't sit still." Rather, it's the
individual who seems to be always daydreaming, is forgetful, is easily
distracted, is disorganized, and just can't seem to pay attention.
My child gets all As and Bs, can she still get accommodations?
Yes. Academic performance in and of itself is not enough to
determine eligibility for services one way or another. According to the U.S.
Dept. of Education's Office of Civil Rights, "If the protections of �504 . . .
are to have any meaning for a qualified handicapped person of superior
intelligence, then the student must be entitled to implementation of a Section
504 Accommodation Plan which allows him to achieve educational success
reasonably commensurate with his ability," (cf. 27 IDELR 858).
Thus, even if a child is receiving A or B grades in
classes, but is having difficulty paying attention in class, with behavior at
school, or at home with homework, the child may still be eligible for
accommodations. The deciding factor will be to what extent AD/HD impacts the
student's ability to learn or behave in class.
If my child has an IEP or gets special education, does she have to be in a
different classroom?
No. If your child has an Individualized Education Plan
(IEP) or is receiving special education services, it does NOT automatically mean
she will be placed in a special education classroom. IDEA has a Least
Restrictive Environment (LRE) clause, which states that children should be
educated in the least restrictive environment that is still sufficient to meet
their academic needs. Therefore if your child can learn in a regular education
classroom then that is where the law says she should be placed. More on
IEP visit
http://theglp.info/resources/sec-504iep
If I request an evaluation, doesn't the school have to do it?
No. The school is only obligated to evaluate a child if
they feel there is a substantial impact on the child's learning or behavior. If
the school chooses not to evaluate, then they must supply a written response
explaining why they refused to evaluate.
Can someone with AD/HD join the military?
For many young people, the military can offer many
benefits, including the opportunity to learn specialized skills, explore various
career possibilities, travel around the world, and obtain signficant health
insurance and other benefits. However, military service is not for everyone, and
there are a number of situations in which a particular individual may not meet
the eligibility criteria for enlistment.
To answer many of the questions about AD/HD and mililtary
service, please visit the section of our site on AD/HD and the Military.
What is the difference between Section 504 and IDEA?
There are significant differences between Section 504 and
IDEA. Perhaps the most significant is that Section 504 is is a civil rights law,
and IDEA is an educational benefit law. Sectin 504 is designed to level the
playing field for individuals with disabilities. Its purpose is to ensure that
individuals with disabilities have the same access to education that individuals
without disabilities have. It does this by eliminating barriers that exclude
individuals with disabilities from participating in protected activities,
including a free and appropriate public education. As an educational benefit
law, IDEA offers additional services and protections for those with disabilities
that are not offered to those without disabilities.
These laws are also distinguished by the their different
eligibility requirements and the benefits they provide. The definition of a
disability is much broader under Section 504 than it is under IDEA. All IDEA
students are covered by Section 504, where as not all Section 504 students are
protected under IDEA. An IEP, which is provided to students covered by IDEA,
must be tailored to the child's unique needs and must result in educational
benefit. However, a Section 504 Plan provides accommodations based on the
child's disability and resulting weaknesses, but does not require academic
improvement.
Additionally, fewer procedural safeguards are offered to
children and parents under Section 504 than under IDEA.
The school says my child has AD/HD; now what do I do?
AD/HD is a medical condition and the educational staff of a
school are not qualified to diagnose AD/HD. If you or other adults in your
child's life (e.g. teachers, grandparents, other caregivers) believe your child
may have symptoms of AD/HD, then you should consult with your family doctor,
your child's pediatrician, or other licensed medical/mental health professional
who is trained in the diagnosis and treatment of AD/HD (for more detailed
information on how a diagnosis is made, see the section on Diagnosis &
Treatment).
Teachers and other school personnel can play an important
role by evaluating your child's learning ability and determine educational
deficits. This information should be part of the comprehensive evaluation done
by the medical/mental health professional.
Ssummer camp for my child?
There are several resources you can use to locate summer
camps designed especially for children with AD/HD. These resources may be
accessed either on the Internet or by telephone. They include:
The American Camping Association: This is an organization
camping professionals with an online searchable database. Click on "Find a Camp"
from their homepage to access their database of over 2,000 camps nationwide. You
can search by many factors, including special need, location, and cost. See
www.acacamps.org. You can also call ACA at 1-800-428-2267.
www.campsearch.com: This online resource is designed
specifically to locate a camp, based on various criteria. You may begin your
search under "Specialty Camps," then select the criteria that fit your needs..
The Learning Disabilities Association of America (LDA): The
LDA produces a directory of "Summer Camps for Children with Learning
Disabilities." This directory may be purchased for $4 and may be ordered by
calling the LDA in Pittsburgh, PA at 412-341-1515.
Some summer camps may also be listed in the new CHADD
Professional Directory. Select the "Schools and Camps" category and search on
the area desired.
Schwablearning.org offers an online directory of summer
camps for children with learning disabilities.
What is LRE?
LRE, or Least Restrictive Environment, is a term used to
mandate that students with disabilities are placed in special classes, separate
schools or positions other than regular education classrooms only when the
nature or severity of the disability is such that even with aids and services
education can not be achieved. The placement must also allow the disabled
student to be with non-disabled peers to the greatest extent possible.
My child has AD/HD but doesn't qualify for an IEP; can he still qualify
under Section 504?
Maybe. A child who was denied coverage under IDEA may
qualify for coverage under Section 504. The key is whether or not the student's
AD/HD substantially impacts a major life activity.
My child started taking medication and has developed tics. What do I do?
A relatively uncommon side effect of psychostimulant
medications is the unmasking of latent tics -- the medical term for involuntary
motor movements, such as eye blinking, shrugging and clearing of the throat.
Psychostimulant medications can facilitate the emergence of a tic disorder in
susceptible individuals. Often, but not always, the tic will disappear when the
medication is stopped.
For many youth with AD/HD, vocal tics (throat clearing,
sniffing, or coughing beyond what is normal) or motor tics (blinking, facial
grimacing, shrugging, or head-turning) will occur as a time-limited phenomenon.
The medications may bring them to notice earlier, or make them more prominent
than they would be without medication, but they often eventually go away, even
while the individual is still on medication.
Tourette's syndrome is a chronic tic disorder that involves
vocal and motor tics. Experts estimate that 7 percent of children with AD/HD
have tics or Tourette's syndrome that is often mild but can have social impact
in the severe but rare form, while 60 percent of children with Tourette's have
AD/HD. Recent research suggests that the development of Tourette's syndrome in
children with AD/HD is not related to psychostimulant medication. However, a
cautious approach to treatment is recommended when there is a family history of
tics or Tourette's syndrome, as certain patients will experience worsening of
their tics with stimulant treatment.
What is FAPE under 504?
FAPE stands for Free Appropriate Public Education. Under
Section 504, FAPE refers to the provision of regular or special education or
aids and services designed to meet the educational needs of individuals with
disabilities to the same extent that the needs of non-disabled individuals are
met.
WHO IS ENTITLED TO FAPE?
All qualified persons with disabilities within the
jurisdiction of a school district are entitled to a free appropriate public
education. The ED Section 504 regulation defines a person with a disability as
any person who (i) has a physical or mental impairment which substantially
limits one or more major life activities, (ii) has a record of such an
impairment, or (iii) is regarded as having such an impairment.[3]
For elementary and secondary education programs, a
qualified person with a disability is a person with a disability who is:
1. of an age during which it is mandatory under state law
to provide such services to persons with disabilities;
2. of an age during which persons without disabilities are
provided such services; or
3. a person for whom a state is required to provide a free
appropriate public education under the Individuals with Disabilities Education
Act (IDEA). (IDEA is discussed later in the pamphlet.)
In general, all school age children who have disabilities
are entitled to FAPE.
HOW IS AN APPROPRIATE EDUCATION DEFINED?
An appropriate education may be defined in different ways.
An appropriate education could consist of education in regular classes,
education in regular classes with the use of supplementary services, or special
education and related services in separate classrooms for all or portions of the
school day. Special education may include specially designed instruction in
classrooms, at home, or in private or public institutions, and may be
accompanied by such related services as speech therapy, occupational and
physical therapy, and psychological counseling and medical diagnostic services
necessary to the child's education.
An appropriate education will include:
1. educational services designed to meet the individual
educational needs of students with disabilities as adequately as the needs of
nondisabled students are met;
2. the education of each student with a disability with
nondisabled students, to the maximum extent appropriate to the needs of the
student with a disability;
3. nondiscriminatory evaluation and placement procedures
established to guard against misclassification or inappropriate placement of
students, and a periodic reevaluation of students who have been provided special
education or related services; and
4. establishment of due process procedures that enable
parents and guardians to receive required notices, review their child's records
and challenge identification, evaluation and placement decisions and that
provide for an impartial hearing with opportunity for participation by parents
and representation by counsel, and a review procedure.
Educational Services Must Meet Individual Needs
To be appropriate, educational programs for students with
disabilities must be designed to meet their individual needs to the same extent
that the needs of nondisabled students are met. An appropriate education may
include regular or special education and related aids and services to
accommodate the unique needs of individuals with disabilities.
One way for ensuring that programs meet individual needs is
the development of an individualized education program (IEP) for each student
with a disability. IEPs are required for students participating in special
education programs of recipients of funding under the IDEA.
The quality of educational services provided to students
with disabilities must equal that provided to nondisabled students. For example,
teachers of students with disabilities must meet standards for certification as
high as those teachers of nondisabled students meet. Facilities must be
comparable and appropriate materials and equipment must be available.
Students with disabilities may not be excluded from
participating in nonacademic services and extracurricular activities on the
basis of disability. Persons with disabilities must be provided an opportunity
to participate in nonacademic services that is equal to that provided to persons
without disabilities. These services may include physical education and
recreational athletics, transportation, health services, recreational
activities, special interest groups or clubs sponsored by the school, referrals
to agencies that provide assistance to persons with disabilities and employment
of students.
Students With Disabilities Must be Educated With
Nondisabled Students
Students with disabilities and students without
disabilities must be placed in the same setting, to the maximum extent
appropriate to the educational needs of the students with disabilities. A
recipient must place a person with a disability in the regular educational
environment, unless it is demonstrated by the recipient that the student's needs
cannot be met satisfactorily with the use of supplementary aids and services.
Students with disabilities must participate with nondisabled students in both
academic and nonacademic services, including meals, recess, and physical
education, to the maximum extent appropriate to their individual needs.
As necessary, specific supplementary aids must be provided
for students with disabilities to ensure an appropriate educational setting.
Supplementary aids may include interpreters for students who are deaf, readers
for students who are blind, and equipment to make physical accommodations for
students with mobility impairments.
A recipient that places an individual with disabilities in
another school is responsible for ensuring that the student receives a free
appropriate public education as close to his/her home as possible.
If a recipient operates a facility for persons with
disabilities, the facility and associated activities must be comparable to other
facilities, services, and activities of the recipient.
Evaluation and Placement Must be Nondiscriminatory
Failure to provide persons with disabilities with an
appropriate education frequently occurs as a result of misclassification and
inappropriate placement. It is unacceptable to base individual placement
decisions on presumptions and stereotypes regarding persons with disabilities or
on classes of such persons. For example, it would be a violation of the law for
a recipient to adopt a policy that every student who is hearing impaired,
regardless of the severity of the child's disability, must be placed in a state
school for the deaf.
Section 504 requires the use of evaluation and placement
procedures that ensure that children are not misclassified, unnecessarily
labeled as having a disability, or incorrectly placed, based on inappropriate
selection, administration, or interpretation of evaluation materials.
An individual evaluation must be conducted before any
action is taken with respect to the initial placement of a child who has a
disability, or before any significant change in that placement.
Recipients must establish standards and procedures for
initial and continuing evaluations and placement decisions regarding persons
who, because of disability, need or are believed to need special education or
related services.
These procedures must ensure that tests and other
evaluation materials:
? have been validated for the specific purpose for which
they are used, and are administered by trained personnel in conformance with the
instructions provided by their producer;
? include materials tailored to assess specific areas of
educational need and not merely materials that are designed to provide a single
general intelligence quotient; and
? are selected and administered so as to best ensure that,
when a test is administered to a student with impaired sensory, manual, or
speaking skills, the test results accurately reflect the student's aptitude or
achievement level or whatever other factor the test purports to measure, rather
than reflecting the student's impaired sensory, manual, or speaking skills
(except where those skills are the factors that the test purports to measure).
Recipients must draw upon a variety of sources in the
evaluation and placement process so that the possibility of error is minimized.
All significant factors related to the learning process must be considered.
These sources and factors include, for example, aptitude
and achievement tests, teacher recommendations, physical condition, social and
cultural background, and adaptive behavior. Adaptive behavior is the
effectiveness with which the individual meets the standards of personal
independence and social responsibility expected of his or her age and cultural
group.
Information from all sources must be documented and
considered by a group of knowledgeable persons, and procedures must ensure that
the student is placed with nondisabled students to the greatest extent
appropriate.
Periodic reevaluation is required. This may be conducted in
accordance with the IDEA regulation, which requires reevaluation at three-year
intervals or more frequently if conditions warrant, or if the child's parent or
teacher requests a reevaluation.
Recipients Must Have Due Process Procedures for the Review
of Identification, Evaluation and Placement Decisions
Public elementary and secondary schools must employ
procedural safeguards regarding the identification, evaluation, or educational
placement of persons who, because of disability, need or are believed to need
special instruction or related services.
Parents must be told about these procedures. In addition,
parents or guardians must be notified of any evaluation or placement actions,
and must be allowed to examine the student's records. The due process procedures
must allow the parents or guardians of students in elementary and secondary
schools to challenge evaluation and placement procedures and decisions.
If parents or guardians disagree with the school's
decisions, they must be afforded an impartial hearing, with an opportunity for
participation and representation by counsel. A review procedure must be
available to parents or guardians who disagree with the hearing decision.
HOW IS A FREE EDUCATION DEFINED?
Recipients operating federally funded programs must provide
necessary services free of charge to students with disabilities and their
parents or guardians. Provision of a free education is the provision of
educational and related services without cost to the person with a disability or
his/her parents or guardians, except for fees equally imposed on nondisabled
persons or their parents or guardians.
If a recipient is unable to provide a free appropriate
public education itself, the recipient may place a person with a disability in,
or refer such person to, a program other than the one it operates.
However, the recipient remains responsible for ensuring
that the education offered is an appropriate education, as defined in the law,
and for coverage of financial obligations associated with the placement.
The cost of the program may include tuition and other
related services, such as room and board, psychological and medical services
necessary for diagnostic and evaluative purposes, and adequate transportation.
Funds available from any public or private source, including insurers,[4] may be
used by the recipient to meet the requirements of FAPE.
If a student is placed in a private school because a school
district cannot provide an appropriate program, the financial obligations for
this placement are the responsibility of the school district. However, if a
school district makes available a free appropriate public education and the
student's parents or guardian choose to place the child in a private school, the
school district is not required to pay for the student's education in the
private school. If a recipient school district places a student with a
disability in a program that requires the student to be away from home, the
recipient is responsible for the cost of room and board and nonmedical care.
To meet the requirements of FAPE, a recipient may place a
student with a disability in, or refer such student to, a program not operated
by the recipient. When this occurs, the recipient must ensure that adequate
transportation is provided to and from the program at no greater personal or
family cost than would be incurred if a person with a disability were placed in
the recipient's program.
FAPE PROVISIONS IN THE INDIVIDUALS WITH DISABILITIES
EDUCATION ACT (IDEA)
Part B of IDEA requires participating states to ensure that
a free appropriate public education (FAPE) is made available to eligible
children with disabilities in mandatory age ranges residing in the state. To be
eligible, a child must be evaluated as having one or more of the disabilities
listed in IDEA and determined to be in need of special education and related
services. Evaluations must be conducted according to prescribed procedures. The
disabilities specified in IDEA include: mental retardation, hearing impairments
including deafness, speech or language impairments, visual impairments including
blindness, emotional disturbance, orthopedic impairments, autism, traumatic
brain injury, other health impairments, specific learning disabilities,
deaf-blindness, and multiple disabilities. Additionally, states and local
education agencies (LEAs) may adopt the term "developmental delay" for children
aged 3 through 9 (or a subset of that age range) who are experiencing a
developmental delay as defined by the state and need special education and
related services.
States and LEAs that opt to use the term "developmental
delay" still may use the disability categories in Part B of IDEA for children
with diagnosed disabilities.
The requirements for FAPE under IDEA are more detailed than
those under Section 504. In specific instances detailed in the Section 504
regulation (for example, with respect to reevaluation procedures and the
provision of an appropriate education), meeting the requirements of IDEA is one
means of meeting the requirements of the Section 504 regulation.
IDEA requirements apply to states receiving financial
assistance under IDEA. States must ensure that their political subdivisions that
are responsible for providing or paying for education for children with
disabilities meet IDEA requirements. All states receive IDEA funds. Section 504
applies to any program or activity receiving ED financial assistance.
IDEA is administered by ED's Office of Special Education
Programs (OSEP), a component of ED's Office of Special Education and
Rehabilitative Services (OSERS). For more information about IDEA, contact OSERS
at 400 Maryland Avenue, S.W., Washington, D.C. 20202. Additional information is
also available at: www.ed.gov/offices/OSERS/OSEP/index.html.
HOW TO OBTAIN FUTHER ASSISTANCE/INFORMATION
If you would like more information about FAPE and the other
laws enforced by the Office for Civil Rights, how to file a complaint, or how to
obtain technical assistance, you may want to contact the enforcement office that
serves your state or territory. For further information, please contact our
Customer Service Team at the toll free number: 1-800-421-3481. You may also
visit our web site at http://www.ed.gov/ocr/.
504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. 794.
[2] Title II of the Americans with Disabilities Act of
1990, (ADA), 42 U.S.C. � 12131 et seq., prohibits state and local governments
from discriminating on the basis of disability. ED enforces Title II in public
elementary and secondary education systems and institutions, public institutions
of higher education and vocational education (other than schools of medicine,
dentistry, nursing, and other health-related schools), and public libraries. The
requirements regarding the provisions of a free appropriate public education
(FAPE), specifically described in the Section 504 regulations, are incorporated
in the general non-discrimination provisions of the Title II regulation. Because
Title II does not change the requirements of FAPE, this pamphlet will refer only
to Section 504.
[3] The Section 504 regulation uses the term "handicap."
However, Congress has amended the Rehabilitation Act of 1973 and has replaced
the term "handicap" with the term "disability." The terms "handicap" and
"disability" have the same meaning. This pamphlet will only use the term
disability.
[4] A recipient responsible for providing FAPE may not
require parents to use private insurance proceeds to pay for required services
where the parents would incur financial loss.
Frequently Asked Questions About Section 504 and the Education of Children
with Disabilities for the Office for Civil Rights.
INTRODUCTION
An important goal of the Office for Civil Rights (OCR) is
to foster partnerships between school districts and parents to address the needs
of students with disabilities. Such partnerships empower all parties to secure
quality education. OCR has experienced a steady influx of complaints and
inquiries in the area of elementary and secondary education involving Section
504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 794 (Section
504). Most of these concern identification of students who are protected by
Section 504 and the means to obtain an appropriate education for such students.
OCR reached out to parents and school districts to determine the kinds of
assistance they needed.
Section 504 is a federal law designed to protect the rights
of individuals with disabilities in programs and activities that receive federal
funds from the U.S. Department of Education (ED). Section 504 provides: "No
otherwise qualified individual with a disability in the United States . . .
shall solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance . . . ."
OCR enforces Section 504 in programs and activities that
receive funds from ED. Recipients of these funds include public school
districts, institutions of higher education, and other state and local education
agencies. The regulation implementing Section 504 in the context of educational
institutions appears at 34 C.F.R. Part 104.
The Section 504 regulation requires a school district to
provide a "free appropriate public education" (FAPE) to each qualified student
with a disability who is in the school district's jurisdiction, regardless of
the nature or severity of the disability. FAPE consists of the provision of
regular or special education and related aids and services designed to meet the
student's individual needs.
This resource document clarifies pertinent requirements of
Section 504 and responds to specific questions raised by parents and school
districts.
For additional information, please contact the Office for
Civil Rights.
INTERRELATIONSHIP OF IDEA AND SECTION 504
1. What is the jurisdiction of the Office for Civil Rights
(OCR), the Office of Special Education and Rehabilitative Services (OSERS) and
state departments of education/instruction regarding educational services to
students with disabilities?
OCR, a component of the U.S. Department of Education,
enforces Section 504 of the Rehabilitation Act of 1973, as amended, (Section
504) a civil rights statute which prohibits discrimination against individuals
with disabilities. OCR also enforces Title II of the Americans with Disabilities
Act of 1990 (ADA), which extends this prohibition against discrimination to the
full range of state or local government services (including public schools),
programs, or activities regardless of whether they receive any federal funding.
The standards adopted by the ADA were designed not to restrict the rights or
remedies available under Section 504. The Title II regulations applicable to
free and appropriate public education issues do not provide greater protection
than applicable Section 504 regulations. This guidance focuses on Section 504.
The Office of SpecialEducation and Rehabilitative Services
(OSERS), also a component of the U.S. Department of Education, administers the
Individuals with Disabilities Education Act (IDEA), a statute which funds
special education programs.
Each state educational agency is responsible for
administering IDEA within the state and distributing the funds for special
education programs.
Section 504 prohibits discrimination on the basis of
disability in programs or activities that receive federal financial assistance
from the U.S. Department of Education. The ADA prohibits discrimination on the
basis of disability by state and local governments. IDEA is a grant statute and
attaches many specific conditions to the receipt of Federal IDEA funds. Section
504 and the ADA are antidiscrimination laws and do not provide any type of
funding.
2. How does OCR get involved in disability issues within a
school district?
OCR receives complaints from parents, students or
advocates; 2) OCR provides technical assistance to school districts, parents or
advocates; and 3) OCR initiates reviews or specific partnership initiatives with
school districts to address disability issues.
3. Where can a school district, parent, or student get
information on Section 504?
OCR provides technical assistance to school districts,
parents, and students upon request.
4. What services are available for students who qualify
under Section 504?
Section 504 requires recipients to provide to students with
disabilities appropriate educational services designed to meet the individual
needs of such students to the same extent as the needs of students without
disabilities are met. An appropriate education for a student with a disability
under the Section 504 regulations could consist of education in regular
classrooms, education in regular classes with supplementary services, and/or
special education and related services.
5. Does OCR examine individual placement or other
educational decisions for students with disabilities?
Except in extraordinary circumstances, OCR does not review
the result of individual placement or other educational decisions so long as the
school district complies with the procedural requirements of Section 504
relating to identification and location of students with disabilities,
evaluation of such students, and due process. Accordingly, OCR generally will
not evaluate the content of a Section 504 plan or of an individualized education
program (IEP); rather, any disagreement can be resolved through a due process
hearing. The hearing would be conducted under Section 504 or the IDEA, whichever
is applicable.
OCR will examine procedures by which school districts
identify and evaluate students with disabilities and the procedural safeguards
which those school districts provide students. OCR will also examine incidents
in which students with disabilities are allegedly subjected to treatment which
is different from the treatment to which similarly situated students without
disabilities are subjected. Such incidents may involve the unwarranted exclusion
of disabled students from educational programs and services.
6. What protections does OCR provide against retaliation?
A recipient is prohibited from intimidating, threatening,
coercing, or discriminating against any individual for the purpose of
interfering with any right or privilege secured by Section 504.
7. Does OCR mediate complaints?
OCR does not engage in formal mediation. However, OCR may
offer to facilitate mediation, referred to as "Resolution between the Parties,"
to resolve a complaint filed under Section 504. This approach brings the parties
together so that they may discuss possible resolution of the complaint
immediately. If both parties are willing to utilize this approach, OCR will work
with the parties to facilitate resolution by providing each an understanding of
pertinent legal standards and possible remedies. An agreement reached between
the parties is not monitored by OCR.
8. What are the appeal rights with OCR?
OCR is committed to ensuring that every complaint is
appropriately resolved. If a complainant has questions or concerns about an OCR
determination, he or she may contact the OCR staff person whose name appears in
the complaint resolution letter. The complainant should address his or her
concerns with as much specificity as possible, focusing on factual or legal
questions that would change the resolution of the case. Should a complainant
continue to have questions or concerns, he or she is advised to contact the
Director of the responsible OCR field office. The Director will review the
appropriateness of the complaint resolution. If the complainant remains
dissatisfied, he or she may appeal to the Deputy Assistant Secretary for
Enforcement.
9. What does noncompliance with Section 504 mean?
A school district is out of compliance when it is violating
any provision of the Section 504 statute or regulations.
10. What sanctions can OCR impose on a school district that
is out of compliance?
OCR initially attempts to bring the school district into
voluntary compliance through negotiation of a corrective action agreement. If
OCR is unable to achieve voluntary compliance, OCR will initiate enforcement
action. OCR may: (1) initiate administrative proceedings to terminate Department
of Education financial assistance to the recipient; or (2) refer the case to the
Department of Justice for judicial proceedings.
11. Who has ultimate authority to enforce Section 504?
In the educational context, OCR has been given
administrative authority to enforce Section 504. Section 504 is a Federal
statute that may be enforced through the Department's administrative process or
through the Federal court system. In addition, a person may at any time file a
private lawsuit against a school district.
STUDENTS PROTECTED UNDER SECTION 504
Section 504 covers qualified students with disabilities who
attend schools receiving Federal financial assistance. To be protected under
Section 504, a student must be determined to: 1) have a physical or mental
impairment that substantially limits one or more major life activities; 2) have
a record of such an impairment, or 3) be regarded as having such an impairment.
Section 504 requires that school districts provide a free and appropriate public
education (FAPE) to qualified students in their jurisdictions who have a
physical or mental impairment that substantially limits one or more major life
activities.
12. What is a physical or mental impairment that
substantially limits a major life activity?
The determination of whether a student has a physical or
mental impairment that substantially limits a major life activity must be made
on the basis of an individual inquiry. The Section 504 regulation, at 34 C.F.R.
104.3(j)(2)(i), defines a physical or mental impairment as any physiological
disorder or condition, cosmetic disfigurement, or anatomical loss affecting one
or more of the following body systems: neurological; musculoskeletal; special
sense organs; respiratory, including speech organs; cardiovascular;
reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and
endocrine; or any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific learning
disabilities. The regulation does not set forth an exhaustive list of specific
diseases and conditions that may constitute physical or mental impairments
because of the difficulty of ensuring the comprehensiveness of such a list.
Major life activities, as defined in the Section 504
regulation at 34 C.F.R. 104.3(j)(2)(ii), include functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. This list is not exhaustive. Other functions
can be major life activities for purposes of Section 504.
13. Does the meaning of the phrase "qualified student with
a disability" differ on the basis of a student's educational level, i.e.,
elementary and secondary versus postsecondary?
Yes. At the elementary and secondary educational level, a
"qualified student with a disability" is a student with a disability who is: of
an age at which students without disabilities are provided elementary and
secondary educational services; of an age at which it is mandatory under state
law to provide elementary and secondary educational services to students with
disabilities; or a student to whom a state is required to provide a free
appropriate public education under the Individuals with Disabilities Education
Act (IDEA).
At the postsecondary educational level, a qualified student
with a disability is a student with a disability who meets the academic and
technical standards requisite for admission or participation in the
institution's educational program or activity.
14. Does the nature of services to which a student is
entitled under Section 504 differ by educational level?
Yes. Elementary and secondary recipients are required to
provide a free, appropriate public education to qualified students with
disabilities. Such an education consists of regular or special education and
related aids and services designed to meet the individual educational needs of
students with disabilities as adequately as the needs of students without
disabilities are met.
At the postsecondary level, the recipient is required to
provide students with appropriate academic adjustments and auxiliary aids and
services that are necessary to afford an individual with a disability an equal
opportunity to participate in a school's program. Recipients are not required to
make adjustments or provide aids or services that would result in a fundamental
alteration of a recipient's program or impose an undue burden.
15. Once a student is identified as eligible for services
under Section 504, is that student always entitled to such services?
No. The protections of Section 504 extend only to
individuals who meet the regulatory definition of a person with a disability. If
a recipient school district re-evaluates a student in accordance with the
Section 504 regulation at 34 C.F.R. 104.35 and determines that the student's
mental or physical impairment no longer substantially limits his/her ability to
learn or any other major life activity, the student is no longer eligible for
services under Section 504.
16. Are current illegal users of drugs excluded from
protection under Section 504?
Generally, yes. Section 504 excludes from the definition of
a student with a disability, and from 504 protection, any student who is
currently engaged in the illegal use of drugs (with exceptions for persons in
rehabilitation programs).
17. Are current users of alcohol excluded from protection
under Section 504?
No. Section 504's definition of a student with a disability
does not exclude users of alcohol. However, Section 504 allows schools to take
disciplinary action against students with disabilities using drugs or alcohol to
the same extent as students without disabilities.
EVALUATION
At the elementary and secondary school level, determining
whether a child is a qualified disabled student under Section 504 begins with
the evaluation process. Section 504 requires the use of evaluation procedures
that ensure that children are not misclassified, unnecessarily labeled as having
a disability, or incorrectly placed, based on inappropriate selection,
administration, or interpretation of evaluation materials.
18. What is an appropriate evaluation under Section 504?
Recipient school districts must establish standards and
procedures for initial evaluations and periodic re-evaluations of students who
need or are believed to need special education and/or related services because
of disability. The Section 504 regulation, at 34 C.F.R. 104.35(b), requires
school districts to individually evaluate a student before classifying the
student as having a disability or providing the student with special education.
Tests used for this purpose must be selected and administered so as best to
ensure that the test results accurately reflect the student's aptitude or
achievement or other factor being measured rather than reflect the student's
disability, except where those are the factors being measured. Section 504 also
requires that tests and other evaluation materials include those tailored to
evaluate the specific areas of educational need and not merely those designed to
provide a single intelligence quotient. The tests and other evaluation materials
must be validated for the specific purpose for which they are used and
appropriately administered by trained personnel.
19. How much is enough information to document that a
student has a disability?
The amount of information required is determined by the
multi-disciplinary committee gathered to evaluate the student. The committee
should include persons knowledgeable about the student, the meaning of the
evaluation data, and the placement options. The committee members must determine
if they have enough information to make a knowledgeable decision as to whether
or not the student has a disability. The Section 504 regulation, at 34 C.F.R.
104.35(c), requires that school districts draw from a variety of sources in the
evaluation process so that the possibility of error is minimized. The
information obtained from all such sources must be documented and all
significant factors related to the student's learning process must be
considered. These sources and factors may include aptitude and achievement
tests, teacher recommendations, physical condition, social and cultural
background, and adaptive behavior.In evaluating a student suspected of having a
disability, it is unacceptable to rely on presumptions and stereotypes regarding
persons with disabilities or classes of such persons. Compliance with the IDEA
regarding the group of persons present when an evaluation or placement decision
is made is satisfactory under Section 504.
20. What process should a school district use to identify
students eligible for services under Section 504? Is it the same process as that
employed in identifying students eligible for services under the IDEA?
School districts may use the same process initially to
evaluate the needs of students under Section 504 as they use to evaluate the
needs of students under the IDEA. If school districts choose to adopt a separate
process for evaluating the needs of students under Section 504, they must follow
the requirements for evaluation specified in the Section 504 regulation at 34
C.F.R. 104.35.
21. Must school districts consider "mitigating measures"
used by a student in determining whether the student has a disability under
Section 504?
Yes. A school district must consider a student's use of
mitigating measures in determining whether the student is substantially limited
in a major life activity. "Mitigating measures" are devices or practices that a
person uses to correct for or reduce the effects of that person's mental or
physical impairment. Examples include corrective eyeglasses and medications. A
person who experiences no substantial limitation in any major life activity when
using a mitigating measure does not meet the definition of a person with a
disability and would not be entitled to FAPE under Section 504.
22. Does OCR endorse a single formula or scale that
measures substantial limitation?
No. The determination of substantial limitation must be
made on a case-by-case basis with respect to each individual student. The
Section 504 regulation, at 34 C.F.R. 104.35 (c), requires that a group of
knowledgeable persons draw upon information from a variety of sources in making
this determination.
23. Are there any impairments which automatically qualify a
student for protection under Section 504?
No. An impairment in and of itself does not qualify a
student for protection under Section 504. The impairment must substantially
limit one or more major life activities in order to qualify a student for
protection under Section 504.
24. Can a medical diagnosis suffice as an evaluation for
the purpose of providing FAPE?
No. A physician's medical diagnosis may be considered among
other sources in evaluating a student with a disability or believed to have a
disability which substantially limits a major life activity. Other sources to be
considered, along with the medical diagnosis, include aptitude and achievement
tests, teacher recommendations, physical condition, social and cultural
background, and adaptive behavior.
25. Does a medical diagnosis of an illness automatically
qualify a student for services under Section 504?
No. A medical diagnosis of an illness does not
automatically qualify a student for services under Section 504. The illness must
cause a substantial limitation on the student's ability to learn or other major
life activities. For example, a student who has a physical or mental impairment
would not be considered a student in need of services under Section 504 if the
impairment does not in any way limit the student's ability to learn or other
major life activity, or only results in some minor limitation in that regard.
26. How should a recipient school district handle an
outside independent evaluation? Do all data brought to a multi-disciplinary
committee need to be considered and given equal weight?
The results of an outside independent evaluation may be one
of many sources to consider. Multi-disciplinary committees must draw from a
variety of sources in the evaluation process so that the possibility of error is
minimized. All significant factors related to the subject student's learning
process must be considered. These sources and factors include aptitude and
achievement tests, teacher recommendations, physical condition, social and
cultural background, and adaptive behavior, among others. Information from all
sources must be documented and considered by knowledgeable committee members.
The weight of the information is determined by the committee given the student's
individual circumstances.
27. What should a recipient school district do if a parent
refuses to consent to a case study evaluation under the Individuals with
Disabilities Education Act (IDEA), but demands a Section 504 plan for a student
without further evaluation?
Section 504 requires informed parental permission for
initial evaluations. If a parent refuses consent for an initial evaluation and a
recipient school district suspects a student has a disability, the IDEA and
Section 504 provide that school districts may use due process hearing procedures
to override the parents' denial of consent.
28. Who in the evaluation process makes the ultimate
decision regarding a student's eligibility for services under Section 504?
The Section 504 regulation at 34 C.F.R.104.35 (c) (3)
requires that school districtsensure that the determination that a student is
eligible for special education and/or related aids and services be made by a
group of persons, including persons knowledgeable about the meaning of the
evaluation data and knowledgeable about the placement options. If a parent
disagrees with the determination, he or she may request a due process hearing.
29. Once a student is identified as eligible for services
under Section 504, is there an annual or triennial review requirement? If so,
what is the appropriate process to be used? Or is it appropriate to keep the
same Section 504 plan in place indefinitely after a student has been identified?
Periodic re-evaluation is required. This may be conducted
in accordance with the IDEA regulation, which requires re-evaluation at
three-year intervals or more frequently if conditions warrant, or if the child's
parent or teacher requests a re-evaluation.
30. Is a Section 504 re-evaluation similar to an IDEA
re-evaluation? How often should it be done?
Yes. Section 504 specifies that re-evaluations in
accordance with the IDEA comply with Section 504. The Section 504 regulation
requires that re-evaluations be conducted periodically. Section 504 also
requires a school district to conduct a re-evaluation prior to a significant
change of placement. OCR considers an exclusion from the educational program of
more than 10 school days a significant change of placement. OCR would also
consider transferring a student from one type of program to another or
terminating or significantly reducing a related service a significant change in
placement.
31. What is reasonable justification for referring a
student for evaluation for services under Section 504?
School districts may always use regular education
intervention strategies to assist students with difficulties in school. Section
504 requires recipient school districts to refer a student for an evaluation for
possible special education or modification to regular education if the student,
because of disability, needs or is believed to need such services.
32. A student is receiving services that the school
district maintains are necessary under Section 504 in order to provide the
student with an appropriate education. The student's parent no longer wants the
student to receive those services. If the parent wishes to withdraw the student
from a Section 504 plan, what can the school district do to ensure continuation
of services?
The school district may initiate a Section 504 due process
hearing to resolve the dispute if the district believes the student needs the
services in order to receive an appropriate education.
33. A student has a disability referenced in the IDEA, but
does not require special education services. Is such a student eligible for
services under Section 504?
The student may be eligible for services under Section 504.
The school district must determine whether the student has an impairment which
substantially limits his or her ability to learn or other major life activities
and, if so, make an individualized determination of the child's educational
needs for regular or special education or related aids or services. For example,
such a student may receive adjustments in the regular classroom.
34. How should a recipient school district regard a
temporary impairment?
A temporary impairment does not constitute a disability for
purposes of Section 504 unless its severity is such that it results in a
substantial limitation of one or more major life activities for an extended
period of time. The issue of whether a temporary impairment is substantial
enough to be a disability must be resolved on a case-by-case basis, taking into
consideration both the duration (or expected duration) of the impairment and the
extent to which it actually limits a major life activity of the affected
individual.
PLACEMENT
Once a student is identified as being eligible for regular
or special education and related aids or services, a decision must be made
regarding the type of services the student needs.
35. If a student qualifies for services under both the IDEA
and Section 504, must a school district develop both an individualized education
program (IEP) under the IDEA and a Section 504 plan under Section 504?
No. If a student is eligible under IDEA, he or she must
have an IEP. Under the Section 504 regulations, one way to meet Section 504
requirements is to comply with IDEA.
36. Must a school district develop a Section 504 plan for a
student who either "has a record of disability" or is "regarded as disabled"?
No. In elementary and secondary schools, unless a student
actually has a disabling condition that substantially limits a major life
activity, the mere fact that a student has a "record of" or is "regarded as"
disabled is insufficient, in itself, to trigger those Section 504 protections
that require the provision of a free and appropriate public education (FAPE).
The phrases "has a record of disability" and "is regarded as disabled" are meant
to reach the situation in which a student either does not currently have or
never had a disability, but is treated by others as such.
37. What is the receiving school district's responsibility
under Section 504 toward a student with a Section 504 plan who transfers from
another district?
If a student with a disability transfers to a district from
another school district with a Section 504 plan, the receiving district should
review the plan and supporting documentation. If a group of persons at the
receiving school district, including persons knowledgeable about the meaning of
the evaluation data and knowledgeable about the placement options determines the
plan is appropriate, the district is required to implement the plan. If the
district determines that the plan is inappropriate, the district is to evaluate
the student consistent with the Section 504 procedures at 34 C.F.R. 104.35 and
determine which educational program is appropriate for the student.
38. What are the responsibilities of regular education
teachers with respect to implementation of Section 504 plans? What are the
consequences if the district fails to implement the plans?
Regular education teachers must implement the provisions of
Section 504 plans when those plans govern the teachers' treatment of students
for whom they are responsible. If the teachers fail to implement the plans, such
failure can cause the school district to be in noncompliance with Section 504.
39. What is the difference between a regular education
intervention plan and a Section 504 plan?
A regular education intervention plan is appropriate for a
student who does not have a disability or is not suspected of having a
disability but may be facing challenges in school. School districts vary in how
they address performance problems of regular education students. Some districts
employ teams at individual schools, commonly referred to as "building teams."
These teams are designed to provide regular education classroom teachers with
instructional support and strategies for helping students in need of assistance.
These teams are typically composed of regular and special education teachers who
provide ideas to classroom teachers on methods for helping students experiencing
academic or behavioral problems. The team usually records its ideas in a written
regular education intervention plan. The team meets with an affected student's
classroom teacher(s) and recommends strategies to address the student's problems
within the regular education environment. The team then follows the responsible
teacher(s) to determine whether the student's performance or behavior has
improved. In addition to building teams, districts may utilize other regular
education intervention methods, including before-school and after-school
programs, tutoring programs, and mentoring programs.
PROCEDURAL SAFEGUARDS
Public elementary and secondary schools must employ
procedural safeguards regarding the identification, evaluation, or educational
placement of persons who, because of disability, need or are believed to need
special instruction or related services.
40. Must a recipient school district obtain parental
consent prior to initiating a Section 504 evaluation?
Yes. OCR has interpreted Section 504 to require districts
to obtainparental permission for initial evaluations. If a district suspects a
student needs or is believed to need special instruction or related services and
parental consent is withheld, districts may use due process hearing procedures
to override the parents' denial of consent for an initial evaluation.
41. If so, in what form is consent required?
Section 504 is silent on the form of parental consent
required. OCR has accepted written consent as compliance. IDEA as well as many
state laws also require written consent prior to initiating an evaluation.
42. What can a recipient school district do if a parent
withholds consent for a student to secure services under Section 504 after a
student is determined eligible for services?
Section 504 neither prohibits nor requires a school
district to initiate a due process hearing to override a parental refusal to
consent with respect to the initial provision of special education and related
services. Nonetheless, school districts should consider that IDEA no longer
permits school districts to initiate a due process hearing to override a
parental refusal to consent to the initial provision of services.
43. What procedural safeguards are required under Section
504?
Recipient school districts are required to establish and
implement procedural safeguards that include notice, an opportunity for parents
to review relevant records, an impartial hearing with opportunity for
participation by the student's parents or guardian, representation by counsel
and a review procedure.
44. What is a recipient school district's responsibility
under Section 504 to provide information to parents and students about its
evaluation and placement process?
Section 504 requires districts to provide notice to parents
explaining any evaluation and placement decisions affecting their children and
explaining the parents' right to review educational records and appeal any
decision regarding evaluation and placement through an impartial hearing.
45. Is there a mediation requirement under Section 504?
No.
TERMINOLOGY
The following terms may be confusing and/or are frequently
used incorrectly in the elementary and secondary school context.
Accommodation: a term correctly used in the context of
public accommodations and facilities; an individual with a disability may not be
excluded, denied services, segregated or otherwise treated differently than
other individuals by a public accommodation or commercial facility; (term is not
to be confused with "reasonable accommodation," discussed below)
Equal access: equal opportunity of a qualified person with
a disability to participate in or benefit from educational aids, benefits, or
services
Free and appropriate public education (FAPE): a term used
in the elementary and secondary school context; refers to the provision of
regular or special education and related aids and services that are designed to
meet individual educational needs of students with disabilities as adequately as
the needs of students without disabilities are met and is based upon adherence
to procedures that satisfy the Section 504 requirements pertaining to
educational setting, evaluation and placement, and procedural safeguards
Placement: a term used in the elementary and secondary
school context; refers to regular and/or special educational program in which a
student receives educational and/or related services
Reasonable accommodation: a term used in the employment
context to refer to modifications or adjustments employers make to a job
application process, the work environment, the manner or circumstances under
which the position held or desired is customarily performed, or that enable a
covered entity's employee with a disability to enjoy equal benefits and
privileges of employment; this term is sometimes used incorrectly to refer to
related aids and services in the elementary and secondary school context or to
refer to academic adjustments and auxiliary aids and services in the
postsecondary school context>
Related services: a term used in the elementary and
secondary school context to refer to developmental, corrective, and other
supportive services, including psychological, counseling and medical diagnostic
services and transportation
My daughter wants to play college basketball. Will NCAA rules force her to
stop taking her AD/HD medication?
No. It is true that NCAA (National Collegiate Athletic
Association) drug policies ban the use of stimulant medications as possible
"performance enhancing" substances. However, the NCAA also recognizes that some
students, like your daughter, have a medically legitimate need to take their
stimulant medication.
If she becomes a college athlete, your daughter may apply
to the Drug Education and Drug Testing Subcommittee of the NCAA Committee on
Competitive Safeguards and Medical Aspects of Sports. This subcommittee will
review her request for a medical exception that will allow her to continue
playing basketball and take her medication as prescribed by her phsician.
For more information see the NCAA News article, "ADHD
exception available," or visit the NCAA's website detailing its Drug-Testing
Exception Procedures.
Does my child need to be physically disabled to get services?
No. Children with mental disabilities or impairments may be
eligible for services under both the Individuals with Disabilities Education Act
(IDEA) or Section 504.
Stressed over the holidays. Do you have any suggestions to help me cope?
If you, your spouse or your child has AD/HD, the key to a
calmer more enjoyable holiday is to create traditions that suit your lifestyles.
No single solution will fit everyone, but here are some suggestions to help
create calm instead of adding to the chaos.
Be flexible. Create holiday patterns that suit the needs of
your family
Hold a family meeting. Discuss what traditions are
important to each of you and do away with the rest.
Ask for help. The holidays should be a family affair.
Look for creative solutions. This might include buying a
smaller tree to decorate, going out to dinner, having a pot luck instead of
fixing everything yourself or bringing two families together to celebrate the
holidays.
Don't give in to unreasonable demands. If you or your
children with AD/HD are exhausted by expectations that you fly home for the
holidays, or that you visit with multiple relatives, let them know that this is
stressful for you. Make sure you give your family early notice of the change in
plans this year.
Try to keep to your familiar routine even when visiting.
Make sure your child with AD/HD continues to take his or her medicine on
schedule and that bedtime stays as close as possible to normal.
Plan ahead. Shop early and avoid taking a tired child with
AD/HD with you.
Order gifts. Use mail order or the Internet. Free shipping
is usually found on many Web sites during the holidays.
Are Charter Schools required to follow IDEA?
Yes, federal law requires any school receiving public
dollars to provide students with disabilities educational choices comparable to
those offered to non-disabled students. Charter schools can not discriminate
against students with disabilities.
Charter schools are required to follow federal laws pertaining to special
education (e.g., Section 504, Individuals with Disabilities in Education Act
(IDEA), and the Americans with Disabilities Act (ADA). Charter schools must
provide a free and appropriate education for children with special needs
identified in an individualized education plan, but may contract with a private
vendor, school district, Special Education Local Plan Area (SELPA), or other
agency to provide the services.
Charter Schools and Special Education
LEA Status
Is the charter school or the public school district in which a charter
school student resides the local educational agency (LEA) for purposes of the
Individuals with Disabilities Education Act (IDEA)?
The school district of residence acts as the local educational agency (LEA)
and is responsible for applying for federal IDEA funds for special education
services provided to resident students enrolled in a charter school. Education
Law � 2856(1) requires that the school district of residence pay to the charter
school any federal aid attributable to a student with a disability in proportion
to the level of services rendered by the charter school. Education Law �
4410-b(4) requires that funds received pursuant to section 611 and 619 of the
IDEA be sub-allocated to charter schools pursuant to the Charter Schools Act and
the Regulations of the Commissioner. Section 119.1(b)(9) and (d) require that
the school district of residence pay to the charter school any federal funds
received pursuant to sections 611 and 619 of the IDEA that are attributable to a
student with a disability who receives services, directly or indirectly, from
the charter school. Education Law � 2853(4) requires that charter school
students receive special education services in accordance with the
individualized education program (IEP) recommended by the committee on special
education (CSE) or subcommittee on special education of the school district of
residence. Therefore, for purposes of the IDEA, the school district of residence
is the LEA, and a charter school is deemed a school of the school district.
CSE Responsibility
Is the public school district in which the student resides responsible for
the evaluation, identification, and individualized education program (IEP)
development for a student with a disability enrolled in a charter school?
Yes. Education Law � 2853(4)(a) places committee on special education (CSE)
responsibility for charter school students on the school district of residence.
The school district of residence is the local educational agency (LEA) under the
Individuals with Disabilities Education Act (IDEA) and is responsible for the
evaluation, identification and placement of, and IEP development for, charter
school students. Education Law �� 2853(4) and 2851(2)(s) make the charter school
responsible for implementation of the IEP in compliance with all federal laws
and regulations relating to students with disabilities.
Can the charter school establish a CSE or Subcommittee on Special Education?
No. CSE responsibility is placed on the school district of residence. A
school district CSE or a subcommittee on special education established in
accordance with Education Law � 4402(1)(b) could meet at the charter school.
Must the CSE ensure the participation of a representative of the charter
school in the development and review of the student's IEP?
Charter school participation in the development of IEPs for charter school
students is of critical importance to both the school district and the charter
school. In meetings to develop or review the IEP of a student with a disability
enrolled in, but not yet attending a charter school, we recommend that the
school district and the charter school ensure that a representative of the
charter school, preferably the regular and/or special education teacher who will
be providing services to the student, attends the meeting. In all CSE meetings
involving charter school students, the parents and the school district would
have the right to invite charter school personnel as individuals who have
knowledge or special expertise concerning the child. If the student is already
attending the charter school, one of the child's regular education teachers from
the charter school must serve as the regular education teacher member of the
CSE. If the charter school is providing all special education and/or related
services either directly or by contract, one of the child's special education
providers must serve as the special education teacher member of the CSE. If both
the school district and the charter school, directly or by contract, provide
special education and/or related services to the child, the school district must
designate the most appropriate provider to serve as the special education
teacher member of the CSE. Charter schools are expected to cooperate fully with
school districts by assuring that charter school teachers and other charter
school personnel participate in CSE meetings relating to charter school
students.
When developing the IEP of a student with a disability enrolled in a charter
school is the CSE limited to recommending special education programs and
services currently offered by the charter school?
No. The CSE must assure that a free appropriate public education is made
available to students enrolled in a charter school and, therefore, in developing
an IEP must recommend special education programs and services to meet the
individual needs of the student. In formulating the recommendation, the CSE
should consider the educational programs and services, and extracurricular and
other nonacademic activities, available in the charter school setting and should
attempt to tailor the IEP to meet the individual needs of the student in the
context of the charter school program. The charter of each charter school must
describe the methods and strategies for serving students with disabilities,
which must be in compliance with all Federal laws and regulations relating to
special education (Education Law � 2851[2][s]). Charter schools are exempt from
State requirements relating to class size and instructional groupings, and
innovative approaches by the charter school to the delivery of special education
services that are consistent with the IDEA, the Rehabilitation Act and Federal
regulations should be accommodated. However, special education programs and
services recommended on the IEP must provide for the student to advance
appropriately toward attaining the annual goals, to be involved and progress in
the general curriculum, and to participate in extracurricular and other
nonacademic activities in the least restrictive environment. If the nature and
severity of the disability of a student enrolled in a charter school is such
that the education of the student in the general education classes of the
charter school cannot be achieved satisfactorily, the CSE must recommend a
special class or other appropriate placement whether or not such special class
or placement is available at the charter school. The charter school must fully
implement the IEP of a student attending the charter school. It is the
obligation of the school district of residence, as the LEA, to provide the
charter school the student's records and other information needed to enable the
charter school to properly implement the student's IEP on the same basis as any
other public school within the school district (see question 20 on
confidentiality of student records) and, to the extent the charter school
provides the special education programs and services to the student, to pay to
the charter school the State and Federal aid attributable to the student.
Does the CSE place a student with a disability in a charter school?
No. Students with disabilities are admitted to a charter school upon
application by the parent on the same basis as any other student.
What procedures must be followed when the IEP of a student enrolled in a
charter school requires full-time placement outside of the charter school
program (e.g., in an approved private residential school, State-operated or
State-supported school)?
This situation results in an apparent conflict between the provisions of the
Charter School Law and the IEP developed pursuant to Federal laws and
regulations. As is the case with a student attending any other public school of
the school district, if the CSE recommends a full-time placement outside of the
charter school for a student enrolled in a charter school, the charter school
must discharge the student to the school district of residence and may not
continue to enroll the student once the new IEP is implemented unless the
student's parent commences due process proceedings to challenge the CSE
recommendation and the charter school program becomes the student's current
educational placement during the pendency of due process proceedings. However,
once any due process is completed, the final determination is binding on the
parents as well as the charter school and the school district. In this
situation, the charter school's obligations to the student, financial and
otherwise, terminate upon discharge to the school district of residence.
Due Process
Is the charter school or the school district of residence of a charter
school student responsible for due process procedures under the IDEA?
As the local educational agency (LEA), the school district of residence is
generally responsible for due process procedures relating to the evaluation,
identification, educational placement and the provision of a free appropriate
public education to charter school students. Where the parents of a charter
school student object to the IEP recommended by the CSE of the school district
of residence or otherwise raise issues concerning the provision of a free
appropriate public education to their child, the school district of residence is
responsible for providing mediation and/or conducting an impartial hearing to
resolve the dispute, to the same extent as for a student enrolled in the school
district. Charter schools must cooperate with school district personnel and
school district attorneys in the conduct of due process proceedings, by making
charter school personnel available to testify and providing documentary evidence
upon request. In addition, under Education Law � 2851(1)(h), charter schools are
required to have student discipline procedures that are consistent with due
process and with Federal laws and regulations governing the placement of
students with disabilities. Therefore, charter schools are required to comply
with the procedural requirements contained the IDEA discipline procedures (34
C.F.R. �� 300.519-300.529) that apply to actions of school personnel upon
suspension or removal of a student (such as providing notice of a decision in a
disciplinary matter that would result in a change of placement, with a
procedural safeguards notice, as required by 34 C.F.R. � 300.523), while the
school district must comply with the IDEA discipline procedures that relate to
CSE functions, such as conducting manifestation determinations, conducting
functional behavioral assessments and developing and reviewing behavioral
intervention plans, and providing all required notices in connection with the
CSE meeting, including a procedural safeguards notice.
What due process procedures must be followed for students with disabilities
pertaining to discipline?
While the procedures for student suspensions in section 3214 of the
Education Law do not apply to students attending a charter school unless its
charter makes them applicable, charter schools are required to have student
discipline procedures that are consistent with due process and the discipline
procedures contained in the IDEA and Federal regulations relating to student
discipline (34 C.F.R. �� 300.519-300.529). The CSE responsibilities required by
Federal law and regulations, including the responsibility to make manifestation
determinations, must be carried out by the CSE of the school district of the
student's residence. A due process proceeding brought to challenge a
determination of the CSE, including an expedited hearing to contest a
manifestation determination, is the responsibility of the school district of
residence. Upon request of the charter school, the school district of residence
must initiate an expedited due process hearing to obtain an order changing the
placement of a student with a disability to an interim alternative educational
setting, where continuing the current placement of the student is substantially
likely to result in injury to the child or others.
To what extent should charter school discipline procedures for students with
disabilities be coordinated with the CSE of the student's school district of
residence?
Because the CSE of the school district of residence carries out all CSE
functions relating to disciplinary actions taken against charter school
students, charter schools and school district CSEs must develop procedures to
assure that both entities are able to meet their respective obligations to
charter school students under the IDEA discipline procedures. This will require
coordination through measures such as:
requiring prompt notice to the school district CSE of charter school
suspensions or removals that trigger requirements for meetings of the CSE, such
as the need to conduct a manifestation determination or to meet to review a
functional behavioral assessment plan;
procedures to assure the participation of charter school personnel in
meetings of the CSE relating to charter school students, particularly in
meetings relating to the development and implementation of behavioral
intervention plans for charter school students;
procedures for requiring prompt notice to the charter school of any actions
by the school district CSE that affects a charter school student; and
procedures for obtaining CSE determinations for charter school students under
34 C.F.R �� 300.121(d)(3)(ii) (determination of services for suspensions or
removals that would constitute a change in placement); 300. 522(a)
(determination of interim alternative educational setting) and 300. 523
(manifestation determination).
IEP Implementation
Must the charter school implement the recommendations as written in the
Individualized Education Program (IEP)?
Yes.
May a charter school contract with a BOCES for delivery of special education
services?
No. There is no statutory authority in Education Law � 1950 for a BOCES to
contract to provide special education or related services to a charter school,
even though a charter school has authority to contract with providers of special
education under Education Law � 2853(4)(a). Therefore, if a charter school wants
to arrange to provide special education services through a BOCES, the charter
school should request that the school district of residence contract with the
BOCES for such service.
What procedures should be followed if the parent of a student enrolled in a
charter school wants the student to receive some but not all of the services
recommended on the student's IEP?
If the parent disagrees with the IEP in whole or in part, the parent has a
right to challenge the CSE determination through mediation and/or an impartial
hearing.
Is the charter school required to arrange for the provision of any special
education programs and services recommended on the student's IEP?
Yes. The charter school is responsible to implement the IEP as written. The
charter school may provide these services directly or arrange to have such
services provided by the school district of residence or by contract with
another provider. However, if the CSE recommends placement in an approved
private residential or non-residential school or another full-time placement
outside of the charter school, the student will not be attending or enrolled in
the charter school program and may not be counted in computing enrollment for
purposes of determining the funds to be paid to the charter school. (See also,
questions 7 and 19).
How soon after the enrollment of a student with a disability or after a new
or revised IEP is developed must a charter school implement the IEP?
Charter schools are required to follow federal laws and regulations that
require the IEP to be implemented as soon as possible following the meeting in
which the IEP is developed. The school district of residence must provide the
charter school with the student records and other information that the charter
school needs to implement the IEP (see question 20 on confidentiality of student
records). If the charter school requests that the school district provide some
or all of the recommended special education services, the school district must
conform to the timelines for IEP implementation in the Part 200 regulations.
May a charter school choose to arrange for provision of special education
and/or related services by the public school district for some but not all
students, or for some but not all services on a student's IEP?
Yes. Education Law � 2853(4) does not require that the charter school
choose between having all the services contained on an IEP provided by the
school district of residence or having all such services provided by the charter
school, directly or indirectly. Under Education Law � 2856 (1) and Part 119.1 of
the Regulations of the Commissioner, the school district of residence is
required to pay the federal and State aid attributable to a student with a
disability to the charter school only in proportion to the level of services
that the charter school provides directly or by contract with another provider.
If the charter school requests that the school district of residence provide
the special education and/or related services recommended on the IEP, must the
public school district provide the services?
Yes, both the school district of residence, as LEA, and the charter school
are legally obligated to assure that the charter school student receives a free
appropriate public education in accordance with the student's IEP. Therefore, if
the charter school requests that the school district provide the special
education and/or related services recommended in the IEP, the school district
must cooperate in making arrangements to deliver such services. If on-site
services are required to meet the individual needs of the student (such as
consultant teacher services, deaf interpreters, etc.), the services must be
provided on the site of the charter school.
If the student's IEP recommends that a student be placed in a self-contained
special class or resource room, and the charter school has no self-contained
class or resource room, is the charter school required to establish such a class
or resource room and/or arrange to have the school district provide such a
class?
Yes, if the student's IEP recommends a self-contained special education
class, resource room or other services that can be delivered at the charter
school and would enable the student to participate in the charter school's
programs and services for some portion of the school day, the charter school is
required to implement the IEP and arrange to have such services provided to the
student. The charter school, under Education Law � 2853(4)(a), has the option of
providing the special education programs directly or by contract, or arranging
to have such services provided by the school district. If the charter school
requests that the school district provide a self-contained class or resource
room, the charter school and the school district can meet such obligation by
placing the student in a self-contained class or resource room operated by the
school district at a location other than the charter school, if that is
appropriate to the needs of the student. However, if a self-contained class or
resource room on the site of the charter school is determined by the school
district CSE to be the appropriate placement for the student and the charter
school requests that the school district provide such services, the
self-contained class or resource room must be provided by the school district.
In this situation, the charter school and the school district CSE should work
with the parents to develop an IEP that meets the student's needs and to design
a program that is integrated into the charter school's educational programs and
makes use of charter school and school district resources.
If the school district of residence is asked by the charter school to
provide any or all of the special education services indicated on a charter
school student's IEP, may the school district refuse to serve the student based
on fiscal concerns?
No. The school district, as LEA, may not withhold services from the student
based on a dispute with the charter school over the cost of services or fiscal
responsibility for such services. The school district of residence is required
to provide the services requested by the charter school and is required under 34
C.F.R. � 300.241 to serve charter school students in the same manner as it
serves students with disabilities in other public schools of the school
district. The school district of residence retains the State or federal aid
attributable to services provided by it to a student with a disability.
In the charter school enrollment process, may charter school personnel
enrolling a student with a disability obtain educational records, including the
CSE evaluation and IEP, of a student receiving special education programs and
services through the district?
Yes. Under 34 C.F.R. � 99.31(2), officials of another school in which a
student seeks or intends to enroll may have access to student records without
parental consent provided that the school district complies with 34 C.F.R. �
99.34 on parental notice. However, the charter school must maintain full
confidentiality of records in accordance with IDEA and FERPA and the federal
regulations implementing such statutes (34 C.F.R. �� 300.560-300.577; 34 C.F.R.
Part 99).
Who provides transportation for students with disabilities enrolled in a
charter school?
For the purpose of regular transportation between home and school under
Education Law � 3635, charter schools are considered nonpublic schools, which
means that non-disabled students and students with disabilities attending
charter schools who reside within a 15-mile radius of the charter school (or
greater radius if the voters of the school district of residence have approved
nonpublic transportation for more than 15 miles) will receive transportation
from their school district of residence on the same basis as nonpublic school
students (e.g., subject to the applicable minimum mileage limits for
transportation in the school district of residence). In addition, the school
district of residence is responsible to provide special transportation to a
student with a disability attending a charter school, whenever special
transportation is included on the student's IEP and the charter school requests
that the school district provide such special transportation. Special
transportation is included in the definition of "special education" under
Education Law � 4401(1). If the charter school arranges to provide special
education services directly, through an arrangement with the school district, or
by contract with another provider at a site other than the charter school,
transportation between the charter school and such other site is the
responsibility of the charter school, which may arrange with the school district
to have such transportation provided as "supplemental transportation" at cost.
Oversight and Monitoring
Who is responsible for ensuring a charter school's compliance with Federal
laws and regulations relating to special education?
Under Article 56 of the Education Law, a charter school is an independent,
autonomous public school and is not a local educational agency (LEA). Education
Law � 2853(2) assigns responsibility to the Board of Regents and the charter
entity to oversee the charter school and to ensure the charter school's
compliance with all applicable laws and regulations, which would include the
IDEA and the Federal regulations implementing the IDEA. Education Law �
2853(4)(a) gives the school district of residence CSE responsibility for charter
school students and therefore makes the school district of residence initially
responsible for its CSE's compliance with the IDEA and Article 89 of the
Education Law. However, the school district of residence is not responsible for
oversight and monitoring of the charter school's compliance with the IDEA,
unless the school district of residence is a charter entity, such as in the case
of a charter school conversion. The State Education Department, as the state
educational agency (SEA), has ultimate responsibility for assuring compliance
with the IDEA by both the school district of residence and the charter school. A
school district or a parent may file a complaint with the State Education
Department's Office for Vocational and Educational Services for Individuals with
Disabilities, if they believe that the charter school is not in compliance with
the IDEA.
Graduation Requirements
Is the charter school responsible for administering State examinations?
Yes. In accordance with Education Law � 2854(d), students attending charter
schools are required to take State examinations to the same extent such
examinations are required of other public school students.
Can the charter school issue a diploma?
Yes. A charter school offering instruction in high school may grant Regents
diplomas and local diplomas to the same extent as other public schools.
Who administers testing accommodations for students with disabilities
attending a charter school?
Whoever is administering the State, local, or classroom examination
implements the testing accommodations.
Do students who attend the charter school receive the safety net provisions
under Part 100 of the Regulations?
Under Education Law � 2854(1)(d), charter schools students are required to
take Regents examinations to the same extent as such examinations are required
of other students in the public schools and may grant Regents and local diplomas
to the same extent as other public schools. Therefore, charter schools must
provide students with disabilities attending the charter school with access to
the safety net (i.e., taking Regents Competency Tests in lieu of Regents
examinations) to the same extent as other public schools, unless the IEP
indicates otherwise.
Must a charter school adhere to the requirements of Section 504 of the
Rehabilitation Act of 1973?
Yes, the Rehabilitation Act is a Federal civil rights law that prohibits
discrimination against individuals with disabilities, and charter schools are
not exempted from such law by Education Law � 2854(1)(b). Therefore, charter
schools must comply with the procedures required under the Federal regulations
implementing the Rehabilitation Act, 34 C.F.R. Part 104, including the
provisions of 34 C.F.R. �� 104.31-104.37 that require the designation of a
Multidisciplinary Team, writing Accommodation Plans, procedural safeguards, etc.
Do children in private schools receive the same help as those in public
schools?
It depends. Any student attending a school that receives
public funds* is guaranteed a Free Appropriate Public Education (FAPE). For
students with disabilities this means they may be eligible for services or
accommodations under one of two laws - the Individuals with Disabilities
Education Act (IDEA) or Section 504. IDEA is what is commonly known as "special
education" whereas Section 504 is a Civil Rights law that covers children in
public school settings. Both of these laws provide appropriate accommodations to
eligible students with disabilities.
Unfortunately, if a private school does not receive any
public funding and is not wiling to provide accommodations or services
voluntarily, then there is little you can do legally, as these laws do not apply
to them. However, some private schools will be willing to implement
accommodations to help students with disabilities.
* Public funds sometimes slip into private schools through
subsidized school lunches or busing programs.
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