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Federal Laws Pertaining to ADHD Diagnosed Children

section 504
comparison of the two laws
links for more information
Section 504 of the Vocational Rehabilitation Act of 1973

There are two laws under which children diagnosed with ADHD can receive special help in school. Section 504 of the Vocational Rehabilitation Act of 1973, a civil rights law, prohibits programs that receive federal funds from discriminating against children with disabilities and, under certain circumstances, requires school districts to make accommodations for the ADHD student.

The other federal law, the Individuals with Disabilities Education Act (IDEA), mandates that eligible students receive access to special education and/or related services, and that the services are designed to meet each child's unique educational needs.

Since Section 504 is a civil rights law, its main purpose is to prevent discrimination against disabled students. A disabled person, according to Section 504, is one who:

  1. Has a physical or mental impairment that substantially limits one or more "major life activities";
  2. Has a history of such an impairment; or
  3. Is regarded as having such an impairment.
Only the first group--those with a physical or mental impairment that limits a major life activity--is entitled to receive educational services or special treatment. Individuals who qualify under the second and third criteria are protected against discrimination, but the school isn't required to make special educational arrangements for them.

Since learning is considered a major life activity, children who have been diagnosed with ADHD who have demonstrable difficulty learning in school, or whose disability prevents them taking part in another life activity, become eligible under Section 504 for special educational services. (Among other things, "major life activities" include walking, seeing, hearing and speaking.)

This does not mean that the student is evaluated and, if found eligible, placed in special education classes. Students who qualify for Section 504 services must be taught in the regular classroom, unless it is impossible to do so. This law dictates that disabled students cannot be prevented from exercising their rights to a free and appropriate public education. Its objective is to provide accommodations so that these children have an equal chance to compete in their regular classes.

Individuals with Disabilities Education Act of 1990

According to the Individuals with Disabilities Education Act (IDEA), if a child has a disability that affects his or her educational performance, then the child may be eligible for special services. IDEA includes 13 categories of disabilities that are protected under the law. So the question of eligibility under IDEA depends on two things: whether the child has a disability that fits in one of IDEA's 13 categories and whether that disability affects how the child does in school.

When IDEA was being drafted, a fierce debate raged behind the scenes over whether to include ADHD in the list of eligible disabilities. The opponents--including teacher organizations and the NAACP, among others--prevailed and when IDEA was first passed in 1990, it did not include ADHD in its list of disabilities that would qualify people for special educational services. In September 1991, however, after advocates launched an extensive lobbying campaign, the Department of Education issued a Policy Clarification Memorandum directing schools to include ADHD as a covered disability under the IDEA.

Depending on the circumstances, IDEA could cover ADHD under its "other health impairment," "serious emotional disturbance," or "specific learning disability" categories. Students who qualify for services under IDEA are entitled to an evaluation and, if it is determined necessary, access to special education services. These services must be designed to meet each child's unique educational needs, which are set forth in their individualized education program (IEP). Depending on the IEP recommendations set forth for each child, IDEA-eligible students may receive any or all of the following: appropriate special education and related services, such as speech and language services, or psychological services and vocational education; special readers, braillists, typists, and interpreters if necessary; the ability to attend a private school--at no expense to the student's family--if the student's educational needs cannot be met through the public school's special education program. 

After a controversial court decision in 1995, IDEA's guarantee to a private education if public school accommodations were inadequate was tested when the law was amended in 1997. When Jeremy Wartenberg, a ninth-grader at Capistrano High School in southern California, flunked every course from gym to math, his parents attributed his educational failures to ADHD and Jeremy was afforded protection under IDEA. The school district set up one-on-one tutorials, but Wartenberg's performance didn't improve. After the school district attributed his problems to bad behavior and reduced his one-on-one tutorials, the Wartenbergs yanked their son out of the public school system and placed him in a private school. They then sued the school district for reimbursement of the $20,000 annual tuition. On July 5, 1995, the 9th U.S. Circuit Court of Appeals ruled that the district must pay the tuition, plus an additional $360,000 for the family's attorney fees. While the IDEA amendments of 1997 upheld a student's right to attend a private school, strict eligibility requirements were put in place, and families were no longer automatically reimbursed for their legal fees.

A comparison of the two laws

Section 504's eligibility requirements are less strict than IDEA's, so it would potentially cover more children affected by ADHD, especially those whose symptoms are less severe. But since Section 504 is a civil rights law, it protects mostly against discrimination; it does not attempt to define the specific criteria necessary for eligibility, nor does it provide guidelines for creating an IEP. IDEA, on the other hand, does both. As such, the services afforded under Section 504 aren't nearly as expansive as those guaranteed under in IDEA.

Schools often prefer that a child be served under Section 504 because it allows them more latitude in determining what services must be offered, and the necessary administrative procedures aren't as extensive. Oftentimes families, however, prefer that their ADHD child win IDEA eligibility because it offers a wider range of options, including access to special education classes and programs that are guaranteed funding. Section 504, on the other hand, provides for no additional financial support.

Perhaps the most distinct difference between the two laws, however, lies in their definitions of a "free and appropriate public education." Since Section 504 is a non-discrimination law, it defines an appropriate education as one that meets that needs of a disabled student as adequately as it meets the needs of students without disabilities. By contrast, IDEA defines an appropriate education as one that addresses the unique educational needs of an eligible student.

Section 504 and IDEA: Basic Similarities and Differences
This article on LD Online provides a good comparison of Section 504 and IDEA, and explains which law is best applied to certain situations. LD Online is a collaboration between public broadcasting's WETA in Washington, D.C., and the learning disability community.
NICHCY Briefing Paper: Questions Often Asked by Parents About Special Education Services
The National Information Center for Children and Youth with Disabilities (NICHCY) is a national information center for disability-related issues. This FAQ answers the most basic questions, such as "What is special education?" and "How do I find out if my child is eligible?" in addition to less obvious questions such as "What is an Individualized Education Program?" and "Does the school need my permission to collect additional information about my child?"
Providing an Appropriate Education to Children with Attention Deficit Disorder
ERIC is one of several data clearinghouses operated by the Department of Education. This is a concise 4-page report on both Section 504 and IDEA, originally drafted by the Council for Exceptional Children.
CHADD's Legislative Action Center
CHADD is the major national advocacy group for children and adults with ADHD. Its Legislative Action Center offers an exhaustive resource section for those interested in knowing about legislation being considered in the U.S. Congress which may affect those diagnosed with ADHD.

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