| Here is your full article text: | What Do We Get Now That ADD/ADHD Is Clearly In The IDEA?
Contributed by: Reed Martin, J.D. (Posted on 2000-11-29)
The long battle to establish that our students with ADD / ADHD are covered under the Individuals with Disabilities Education Act has now been won. Because of the 1997 IDEA Amendments and the 1999 IDEA Regulations schools will have to reverse many of their policies and practices.
The new battle will be to get appropriate services under the IDEA.
In the legislative history of the IDEA 1997 statutory amendments it seemed clear, thanks to very hard work by CHADD and other groups, that ADD was now covered but the 1999 regulations that were recently released have made it absolutely clear.
The 1999 Regulations, at 34 C.F.R. 300.7(c)(9), include "attention deficit disorder or attention deficit hyperactivity disorder" under Other Health Impaired. The OHI category has always referred to "limited strength, vitality or alertness" which were not terms that one often associated with our students with ADD. However, the regulations spell out the logic that ADD causes "a heightened alertness to environmental stimuli that results in limited alertness with respect to the educational environment." Parents and teachers have always said "I can't get them to pay attention to what they are supposed to pay attention to" and now we have an official recognition that is the problem.
So what do we get under the IDEA? Some schools still insist we get "nothing" because the child's needs are not related to academics. They are wrong.
In the recent case of W.B. v. Matula, 67 F.3d 484 (3rd. Cir. 1995) the federal Circuit Court of Appeals decided a case in which the school district had insisted that the child, known to have ADD/ADHD was not IDEA eligible because "disruptive behaviors, including not paying attention in class, fighting with other students, failing to remain seated, making continuous noises and repeatedly touching other children... difficulty beginning tasks, difficulty finishing those that he did start and coloring within the lines" were not related to academics. The Circuit Court did not agree with the school district.
There is obviously a direct relation to academics in the above example because, although the school might have been viewing it as a "discipline" problem, the disciplinary sanctions which include grading off on work, removals from class, short term suspensions, and so forth, will most likely cause the student to fail a class, be retained in a grade, and work far below his academic potential.
And now, with the 1997 Amendments and the 1999 Regulations, the definition of education and the school's responsibility is greatly broadened.
In the Legislative History of the IDEA in 1990, the Congress recognized that ADD "is characterized by a developmentally inappropriate degree of inattention, and often, but not always, is associated with a developmentally inappropriate degree of impulsivity and/or overactivity. The disorder may result in pervasive manifestations of difficulties in attention, persistence in task performance, impulse control, control of activity level, organization, underperformance of academic tasks relative to ability, or social skills." [House Rept. 101-544, 5 U.S. Code Cong. & Admin. News 1990 at pp. 1728-29].
That was in 1990 and the good news is that now, in 1999, the law recognizes all of those as being under the general title of educational problems that have to be considered on an IEP. The scope of the IEP now covers anything, arising from the disability, that affects performance relating to school: academics, non-academics and extracurricular activities. So getting to school on time, waiting appropriately for the bell to ring, getting to the right class on time, turning in homework on time, getting to the next class with the right materials for that class, turning in that homework on time, following what is going on in class sufficiently to participate appropriately, getting the homework assignments for tonight accurately, taking home the materials needed to do the homework, not interfering with other students, and so forth are all "educational" issues.
If a student engages in behaviors that impede his or her learning or that of others around them then they are to be addressed at the IEP. There must be sufficient evaluation to determine whether these are behaviors that arise from the disability or whether they are "wilful" misbehaviors. The latter might be subject to traditional disciplinary sanctions but if the problem behaviors arise from the disability then a positive behavior intervention must be considered.
This is going to require a change in school policies and practices. It will also require in-service training. The 1990 legislative history quoted above continues: "Teachers will have to be educated to recognize the characteristics of ADD and will need training in the educational management of children with this disorder as well as familiarity with standard medical and psychological treatments. Such educational interventions may include, but are not limited to: curriculum modifications to adjust for the child's attention deficits, programs designed to reduce off-task and impulsive behavior, cognitive training programs to teach problem-solving skills to enhance self- control, social skills training programs, organizational skills training programs, or counseling programs."
So where do you get the training for the teachers and administrators in your building or school district? First, ask to see their written plan of in-service training. Your school district has promised, as a condition of receiving federal dollars under the IDEA, that they maintain a comprehensive system of personnel development by which they assure an adequate supply of appropriately trained regular education, special education and related services personnel. Ask in writing whether the regular education teacher has received training, as specified above, "in the educational management of children with this disorder....."
Also ask in writing whether the regular education teacher coming to your IEP meeting has received training in their new duties under the IDEA Amendments and Regulations? There must be a regular education teacher at your IEP, according to the statute and the regulations (see especially Appendix A, Question 1). That regular education teacher at the IEP, according to 20 U.S.C. 1414(d)(1)(A)(iii), must help develop the "statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child."
That regular education teacher has to be someone who has actually worked with your child and the IEP that is developed must direct the other personnel who will carry out the IEP "of his or her specific responsibilities related to implementing the child's IEP and the specific accommodations, modifications and supports that must be provided for the child." [34 C.F.R. 300.342(b)(3)]. Ask in writing whether the regular education teacher coming to your IEP has been trained in this, and ask in writing how each of the other regular education teachers who will interact with your child will be in-serviced in carrying out the IEP.
The positive behavior intervention plan that is now required by the new Amendments and Regulations is not related to "misbehaviors" that lead to disciplinary sanctions. It includes all behaviors, or lack of behaviors, that impede that individual's learning or interfere with others around them. Ask in writing how your school is going to train personnel to implement such a plan? And how is your school going to train the building "disciplinarian," usually the assistant principal, that only the positive behavior approach may be used -- the traditional negative disciplinary sanctions are suspended for now? We are seeing students with positive plans, and written at the bottom by the assistant principal is "but he must follow all school rules." That child is then constantly in the assistant principal's office or suspended and their right to a positive behavior intervention plan has been violated.
So we have a great opportunity for our children to be treated fairly and to be treated with educational, rather than punitive, interventions. As with anything new, the teachers and other building level personnel will be slow to learn about these new responsibilities and what they are taught may not quite be what the law actually requires.
Write and find out what training is going to be done and see if you can attend training or get a copy of training material. As the courts have often noted, "civil rights statutes are not self-enforcing." It will be up to us to lead our school systems into compliance with this important new development for our children. |
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