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Legal Rights of Students with ADHD

Educational planning to support students with ADHD is not only about grades.

Both parents and educators often struggle to figure out what exactly fits in an educational plan for a child with ADHD. What does the law say, and where does a school’s responsibility end? Where does a student's or family’s? I had a chance recently to connect with Matthew Cohen, a national expert on ADHD law.

Dr. Bertin: Let’s jump right in. ADHD affects cognitive abilities used for planning, organization, and time management. It gets in the way of note-taking, reading comprehension and writing, and other details like writing down assignments, knowing how to study, or handing in homework on time. What are the legal implications of all that?

Mr. Cohen: If a student is diagnosed with ADHD and it adversely impacts educational performance (broadly defined) and requires special education instruction, they are entitled to special education and related services via an IEP. If a student has ADHD and it substantially limits some area of functioning at school, but does not require special education, they will likely be entitled to a 504 plan, which can provide related services (such as counseling or nursing) or accommodations.

Dr. Bertin: When does it matter if someone has an IEP instead of a 504 plan? What does the 504 law cover that people might not realize?

Mr. Cohen: An IEP generally provides far more detail as to what the student will receive, when and how they will receive it, and how their progress will be measured. It also provides for more detailed due process safeguards for the student and more explicit protections for the parent that ensure their right to participate in the process.

By contrast, a 504 plan can provide the services contained in an IEP and is easier to obtain and is more flexible, but is harder to enforce and has less detail and accountability built in. Most importantly, the safeguards in relation to discipline for a student with an IEP are more explicit than those for students with a 504 plan.

Dr. Bertin: To ask an entirely leading question, if a child is behind in skills that let them manage their own education, are schools responsible for teaching those academic skills? Seeing a test date online and knowing how to study for that test are different ideas when someone has ADHD.

Mr. Cohen: This question is a bit confusing, but IDEA is more explicitly required to provide remedial education to address a disability, whereas 504 is more focused on accommodating the manifestations of the disability so the student is still able to function in school at an adequate level. Both IDEA and 504 could address problems with study skills, organization, or time management if those difficulties are due to the child’s disability.

Dr. Bertin: From my point of view, supporting a student with ADHD is no different than supporting someone who has trouble hearing, or is late to class because of a knee injury. You can only be responsible for what you’re capable of, and ADHD then gets in the way of planning, problem-solving and sticking to routines. Figuring out how to study or getting to an extra help session aren’t that straightforward when you have trouble with planning to start. There often is an implied message students should "take responsibility" for their own ADHD, but that’s hard when you have ADHD to start. What’s your legal take?

Mr. Cohen: I agree with your point. That is a problem with many “invisible” disabilities. I think ADHD is especially vulnerable to these misperceptions, because the symptoms are not always present and some people still doubt the validity of the disorder itself.

The federal government has recognized ADHD as a severe disability. Schools are required to examine how the disability impacts the student, including initiation, organization, and completion of tasks,

Dr. Bertin: ADHD gets in the way of planning, so kids with ADHD struggle to plan around their own ADHD. For example, self-advocacy and responsibility require both motivation and specific skills; you can’t accomplish everything through hard work alone. It’s like running a marathon, which requires both motivation and actual physical training.

In a way, forgetfulness is a metaphor for anything ADHD. If you’re forgetful because of ADHD, getting marked down continually for late homework often kills motivation until someone steps in to collaborate on a solution. What’s your approach when students aren’t taking the lead for themselves, like around seeking extra help or studying?

Mr. Cohen: First, to extend your metaphor, a marathon also requires keeping the goal In mind and staying on track. ADHD interferes with these as well. I stress the importance of engaging in two ways to support the student simultaneously.

The first is to build in accommodations in the short term so that the student is able to complete the work, the project, or the test. These can include making sure the student understands the task and has access to the right materials or resources, assisting in breaking the task into manageable chunks, helping to budget available time, and frequent check-ins or reminders to make sure the student is staying on track.

At the same time, these external supports don’t always help the student to figure out for themselves how to manage their ADHD. As a result, it is important to actually teach the student strategies that they can use that will help them to understand, organize, and implement the task and to seek help when they are having difficulties. I typically ask that actual goals be written to teach these skills and to allow for monitoring of the student’s progress in learning them.

Dr. Bertin: In a nutshell, what does explicit instruction and support around executive function and ADHD look like from a legal perspective?

Mr. Cohen: The IDEA (special education) requires the provision of specialized instruction and related services that are necessary for the student to benefit from their education and make meaningful progress. This may include in-class or resource support to assist the student to learn these executive functioning skills, provision of accommodations, such as the ones that I mentioned above, to allow the student to function successfully, provision of other accommodations, such as extended time for work and tests, provision of a quiet room, preferential searing and the like.

Dr. Bertin: One last question. People often worry supports for ADHD undermine motivation or create a crutch. As someone who works with families but isn’t a medical professional, what do you see in students who receive extensive but appropriate supports?

Mr. Cohen: I think the concern is legitimate. The issue is what to do in response to it. The sink or swim approach only assures that the student will fail.

The approach that provides accommodation without helping the student to learn to manage their disabilities themselves allows them to be more likely to succeed in the moment, but doesn’t help them to manage independently. The best approach is to provide accommodation to support them in the moment, while teaching them the skills to allow them to be more independent and successful in the future.

Matt Cohen is a special education lawyer and author of A Guide to Special Education Advocacy: What Parents, Clinicians, and Advocates Need to Know. Mr. Cohen has been appointed to the Board of Directors of the Illinois Institute of Clinical Social Work effective March 1, 2018. Matt is currently also serving on the boards of the National Council of Parents, Attorneys, and Advocates (COPAA), where he is a founding board member, and Our Place of New Trier Township, a community-based program for young adults with disabilities. He chairs the Illinois Attorney General’s Advisory Committee on Special Education, having served in that capacity for over 25 years. Matt is also a past board member of CHADD, The National Resource on ADHD.

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