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Legal Briefs from Matt Cohen

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ADHD

The following are past questions and answers from Matt Cohen on this topic.

Are there legal resources for individuals with disabilities who run into trouble with the law?

My 18 year old son has recently run into trouble with the law. I am having a hard time getting his attorney to understand that his ADHD and learning disabilities make him vulnerable to "talking without thinking." His issues with concentrating, focusing, and his impulsiveness also make things more difficult. I would like to find someone to work with my son who understands his disability and its impact on the situations he has gotten himself into. Are there legal resources for individuals with disabilities who run into trouble with the law?

Unfortunately, many criminal lawyers are not very familiar with disabilities and their impact on behavior. It would be especially hard to find an attorney with expertise in ADHD and LD. It is also important to know that, while state laws vary, unless a defendant lacks the mental capacity to understand right from wrong or to control their behavior due to insanity or severe cognitive disabilities, disabilities such as ADHD may not be a legal defense for the action but may be relevant as a mitigating factor in determination of the sentence.

To find a knowledgeable criminal lawyer, you may be able to get assistance from the local Bar Association or get referrals from the local public defender's office. If you are already involved with clinicians working with your son that are knowledgeable about ADHD, you might try to arrange for the clinicians to consult with the attorney. The clinicians may also be familiar with attorneys that they have worked with before that are already familiar with ADHD.

My daughter receives accommodations for ADHD, but doesn't have a formal 504 plan. What can I do to make sure she gets this documentation?

My 12-year-old daughter was diagnosed with ADD. She had a 504 last year, and it was the best year she's ever had. When she changed to middle school this year, they pulled her 504, saying that she has only "time management" issues that don't prevent her from achieving good grades. However, she does have misfiled papers everywhere, has forgotten deadlines, and has hours of homework. She has had to quit everything afterschool and has no extracurricular life. She comes home, does homework for 4-5 hours, eats and goes to bed every week night. She is getting depressed and now hates school.

The principal has said that she can just "limit herself" to a half hour per subject and take the grade she gets. I think she needs her 504 back. Is she being unfairly denied it because she can achieve good grades? They are already giving her extra time on projects and tests, overlooking her late assignments, and reminding her repeatedly to stay on task. Shouldn't this be formalized in a 504? Help!

Your question concerns whether your child with ADHD should remain eligible for a Section 504 plan. First, it is inappropriate for a school to use passing grades as the primary or sole measure of whether a student's disability is substantially limiting life functions at school. While learning is the most obvious school related life function, working, thinking, and concentrating are also specifically identified as life functions under the Americans with Disabilities Act and Section 504.

As a result, your child should be assessed based on how her ADHD is impacting her functioning at school in a variety of ways, including but not limited to grades. In addition, it appears that both you and the school are providing her with various formal or informal accommodations. Under recent amendments to the ADA, the institution is not permitted to deny eligibility based on the person's performance if their performance is dependent on the provision or use of mitigating measures, such as some of the accommodations you described. In other words, the decision about whether she has a disability must be based on how she would perform without these measures, rather than with the extra support.

You should also carefully document all the ways that her disability is affecting her, including those you describe in your question, as homework is also a school-related activity. If her difficulty with homework is disrupting her life, that is also a factor in determining whether her disability is substantially limiting major life activities.

What can we put in the 504 Plan to make sure that my son is not punished for symptoms of his ADHD?

I am hoping that other parents also have this question. I am a Reading Specialist and I thought that I covered the bases with my son's 504 Plan, but I was wrong. He was forced to write his name repetitively on several occasions for forgetting to put his name his paper — that was until the teacher realized it wasn't working. Then she just made him miss part of his recess.

It was the end of the year and my hands were tied because it wasn't in his 504 that he couldn't be punished for this. I do not want him punished for anything relating to symptoms of his ADHD. How can I word this in his 504 to prevent this in the coming years?

I never thought a teacher would punish any child this way. I taught for 14 years and never felt it was appropriate for any child just by the very nature of punishment and reward. I can't help other children, but I can certainly make sure this doesn't happen to mine again.

—Andrea

Dear Andrea:

As a general matter, students should not be punished for academic problems due to their disability. However, your sonís Section 504 Plan, or those of other students, need to be specific and detailed in describing the studentís disability and the ways the disability impacts their academic and non-academic performance.

This sort of repetitive writing task is a throwback to educational practice decades ago, regardless of disability law. However, if the student is forgetting to do something necessary to complete an assignment, that should be identified as a problem area and should be addressed in the 504 Plan.

Under the IDEA, and implicitly under Section 504, schools should address both academic non-compliance and behavioral non-compliance through the use of positive behavioral interventions and supports as much as possible. For example, your son may need instruction on how to develop a routine for checking to make sure the assignment is complete, including having his name. An incentive structure might be helpful to motivate him to pay attention to this task.

It may also be appropriate for the plan to include that the teacher will monitor the assignments to verify that they are complete, rather than punishing the student. If there are actions being taken by the school that the parent disagrees with, these should be raised with the school. While the school may not agree, it is often helpful to include in the 504 plan both what the school will do proactively and those actions or interventions that the school should not do, such as excluding the child from recess.

Notably, the IDEA and Section 504 both provide protection not only in relation to academic activities, but non-academic and extracurricular activities as well. There may be an argument that the failure to appropriately accommodate the possible problem with work completion was also resulting in unfair exclusion from recess or other non-academic activities.

Can a school have teachers complete ADHD screening forms without parental consent?

Can a school have teachers complete ADHD screening forms when a parent has not requested this? These forms were mailed to me by our area education agency and we had no prior notice that this would be happening.

I know that my daughter does not have ADHD. I do believe she has a learning disability and we are in the process of getting that diagnosed privately outside of the school. Can I have these removed from her file?

A school should not conduct an individualized evaluation of a child for purposes of diagnosing or identifying a disability without the written informed consent of the parent.

ADHD rating scales are assessment tools used for the purpose of determining whether a child has ADHD. As such, they suggest the school is conducting an evaluation of that student, which must be done with the consent of the parent. Schools are allowed to conduct school-wide evaluations of all students without consent, but are not supposed to conduct individual evaluations to assess disability without first informing the parents of the desire to evaluate, obtaining the parents' input about whether an evaluation should be done and the components of such an evaluation, and obtaining their written consent for the evaluation.

If an evaluation was done without consent, or if a student's file has any records that the parents object to, there are procedures under the federal Family Educational Rights and Privacy Act (FERPA) and most states' school records laws, for reviewing and objecting to specific records or information in the file. If the school does not agree to the parents' request, there is a procedure for requesting an administrative hearing to challenge the presence of the objectionable records.

Can a diagnosis of ADHD influence a judge's decision in a criminal trial?

My son has ADD/ADHD and we had hopes he would eventually grow out of it. As his lifestlyle became difficult, it also has become expensive where he has skipped court appearances to take a test. He neglected to think of resheduling after the fact and then let go of the responsibility, causing him unbelieveable problems later. It seems to repeat itself again and again.

The courts are probably enjoying all of his huge fines. I am so afraid they need to relate to his problem this time, and he needs to also get help. Would it be a good idea to disclose his medical diagnosis of ADD to a judge in hopes of decreasing a fine he has to get hit with? He owes probably $6,000 in fines already. And this new one could be as much as another $1,000 or more.

What do you think? I wish I would have turned to this sooner. He may have not so many problems now.

Deborah

Dear Deborah,

The questions you raise are criminal matters. You should consult with a local criminal lawyer in your area with respect to your specific issues. However, as a general matter, it may be helpful to understand the role that disability can potentially play in any criminal proceeding. There are essentially four ways that disability can be a factor in a criminal case.

First, if an individual is clinically and legally incompetent to understand and participate in their own defense, they may avoid going to trial, either temporarily, or if their condition is permanent, forever. This could occur when an individual is severely mentally retarded or severely mentally ill and requires a high level of expert proof. Generally, if someone is not competent to stand trial, they are ordered to receive treatment and may still be tried at some point if they regain competency. ADHD usually would not be a serious enough condition to render someone incompetent to stand trial.

Second, if a person is competent to stand trial, states have differing rules, but generally allow severe impairment, e.g., severe retardation or insanity, to be used as a defense. Depending on the state, that may lead to a number of different technical verdicts, which have the effect of avoiding the normal penalties, but generally lead to the person being hospitalized or institutionalized, typically as long as their condition persists. As with the issue of competency to stand trial, it is highly unlikely that ADHD would be accepted as a defense, such as an insanity plea.

Third, disability can be taken into account as a mitigating measure. This occurs where the person is found guilty, but evidence suggests that the person's disability contributed to their conduct. This may, under some circumstances, lead to a less harsh sentence.

Finally, disability can be a factor in relation to what is called the disposition or sentencing stage. If it can be established that the person has the disability, that it impacted their conduct, and that they need treatment, the court may take this into account both with respect to the severity of punishment and in consideration of therapeutic options as part of or instead of incarceration.

The circumstances where disability is given serious consideration vary widely with each case, each judge and with the laws of the particular state. Unfortunately, many courts, and even many lawyers, are not very familiar with ADHD and may not see it as a serious factor in the case, even when it did have a significant impact on the individual's conduct. Again, it is important to consult with a criminal lawyer in your state to assess whether your son's diagnosis has any significance in relation to his criminal defense.

How does a child with ADHD qualify for an IEP or 504 plan?

My son has ADDHD and is under the care of a psychiatrist and psychologist who both state my son should be covered under 504. His school does not feel he qualifies for IEP. My son is about to fail his classes due to his problems. Can anything be done?

Dear Michael,

Your question indicates that your child has been diagnosed with ADHD by a psychiatrist and psychologist, both of whom recommend that your son be made eligible for a Section 504 plan. Your question then indicates that the school feels your son does not qualify for an IEP even though he is about to fail his classes.

First, you should be aware that an IEP and a Section 504 plan are different. There are different criteria for a Section 504 plan and an IEP. A Section 504 plan requires that a student have an impairment which substantially limits a life activity such as learning. In order to qualify for an IEP, the student must meet the eligibility criteria for one of the 13 categories of disability under the special education law.

In relation to ADHD, the category that is generally utilized is "the Other Health Impaired" category. In order to qualify for an IEP, the student must have a health impairment, such as ADHD, which causes limited strength, vitality and alertness, including limited ability to pay attention to the teacher, which adversely affects the students performance and requires special education intervention.

In either event, the fact that your child has been privately diagnosed would have to be considered by the school district but does not automatically require that the school make the child eligible. The school may decide to accept the outside evaluations, to conduct their own evaluations with your consent, or deny that the student needs an evaluation or services at all. If they decide that the student does not warrant an evaluation or services, they must provide you with written notice of that decision and of your right to request a due process hearing to challenge the school districts refusal to conduct an evaluation or to provide services.

Can a school district deny a child the support of an aide if one is needed?

I teach a regular 3rd grade education class. I have a student who has an IEP for ADHD. This child has behavior problems, anger management problems and problems with peers. I have repeatedly requested an aide for him and have been refused. The parents have not requested one because they don't know that it is an option.

At a recent IEP meeting, this child was placed in a resource room for help with reading comprehension. I think he could have stayed in a regular classroom with the support of an aide. Is the district correct in denying coverage for this child? I have been told that I can not fill out the paper work that would prove one is needed. The school district is on a mission to dismiss as many aides as possible because of monetary issues.

Thank you

Any school policy which provides a blanket refusal of services to a category of children with disabilities may violate both the IDEA and Section 504 based on the failure to make an individualized determination of services. The determination of needs, whether in relation to an aide or any other service, should be individualized.

In addition, IDEA specifically provides that the IEP may include supports that the child and staff need in order for the child to benefit from education, as determined by the IEP team. See 34 CFR 300.320(a) (4) Parents should be aware of their rights under the special education laws.

When a staff person is directed to follow a school policy that may be inconsistent with the staff memberís perception of the childís needs and, possibly, the childís legal rights, they face a difficult personal, professional and legal situation. Consultation with a lawyer and/or a union representative may be necessary. It is beyond the scope of this forum to provide any legal advice.

What obligation does the school system have to evaluate a child who was diagnosed privately with ADD?

My son is 12 years old. He was first diagnosed with ADD in the 3rd Grade. He is now in the 6th grade and will most likely fail. Modifications were never put in place for him regardless of how many times we asked. Finally we were told by his Vice Principal, on her own, that they would begin the 504 process for him. We waited patiently. This week when we asked for status, she said we must have misunderstood her. She said she doesn't have the authority, and that the school is already making all the necessary modifications for him.

This is completely false. Nothing is being modified; homework assignments, testing, nothing. He doesn't have an IEP or any written plan of modifications. They have however sent him to "Academic Tutorial" and In-School Suspension, for failure to turn in homework, so many times this year I can't even count them all.

He has no behavioral problems. He is well liked by teachers and friends; he is kind, considerate, polite, caring, an amazing artist, very athletic, respectful; and until recently, has maintained high self confidence. But unfortunately, I have noticed that his confidence is faltering and he is beginning to seriously doubt himself. The staff at his school blames us! They say we should be doing more for him. I spend hours upon hours working with him. I don't know how I could possibly do more. I am so angry and bewildered.

Why do they continue to refuse to initiate 504? What could possibly be motivating them to be responding this way? Do we have the right to insist on 504 and/or an IEP if our son has a diagnosis of ADD? He was diagnosed three times; University of North Texas, his Pediatrician, and his Neurologist. My son is being treated as if he has a behavior problem instead of a medical condition.

I love him so much and I am so broken-hearted to see him go through this. I feel powerless. I feel stupid for trusting the "system". We're pretty sure we need an attorney and we are looking for one. It makes me angry that we have to spend money we don't have to make them do their job. We also have secured a private tutoring agency, Sylvan, to help him get caught up on his skill gaps. An SAT conducted last year showed he was at a 9th grade level in Reading and a 2nd grade level in Math. He has a High Average IQ.

I wish no family had to ever suffer the pain and anguish we have suffered. I wish there were some way to standardize the process and treatment of children with ADD/ADHD in the public school system. We will find the money. But so very many families can't.

Thank you very much,
Terri

Dear Terry:
It sounds like you and your child have been mistreated by the school system. Under both the special education system and section 504, the school district has an obligation to identify and evaluate children who are suspected of having a disability who reside within the school district. Under the special education system, this legal obligation is called Child Find. This puts an affirmative obligation on the school district to identify children who may have a disability and to evaluate them to determine if in fact they have a disability (of course after having obtained parental consent).

When a child has been privately evaluated and diagnosed with a disability, it is especially important that the school follow through with conducting an evaluation to determine if the child has a disability for purposes of special education or section 504 services. Even if a child is determined not to meet the criteria for disability under the special education system, they should be evaluated to determine if they meet the criteria for protection under Section 504, which has broader eligibility criteria.

When a school district has failed to conduct appropriate child find efforts, the parent may be forced to request a due process hearing to force the school district to identify your child as having a disability. If the child has been deprived of appropriate services for a period of time, the child may be entitled to receive compensatory educational services to make up for the lost time.

Should a parent bring an advocate with them to an initial IEP meeting?

Dear Mr. Cohen,

My child has been diagnosed with ADHD. He is a bright kid but just doesn't focus when in class and he is very disorganized. He is now in seventh grade and he still is struggling in school; specifically he is not completing all his assignments (a problem for the last couple of years) and is in danger of receiving F's in three classes.

The last couple of years his teachers have not been very cooperative with us. We have requested an IEP for our son and have been invited to attend an initial IEP team meeting. Evidently we are entitled to bring an individual knowledgeable in this area to the meeting.

My question is should we bring such an individual to the initial meeting and if yes can you recommend such a person. Thank you for your help.

Daniel

Dear Daniel,

You are seeking information on whether it is helpful to bring an individual knowledgeable about the content of IEPs for children with ADHD to an initial IEP meeting. There are a number of considerations with respect to this decision. First, it is important at an initial IEP meeting to establish positive rapport with the school staff and to communicate to them that you are interested in working with them in a collaborative manner. You wish to give them the message that you have confidence in them and hope to have a positive working relationship. In some instances, bringing outside individuals with you to the initial meeting may give the school staff a message that you don't trust their expertise and/or may threaten them because your outside advisers may appear to know more than the school staff do about the specific things that you are asking for. Thus, care should be given in introducing outside professionals into initial IEP meetings in order to avoid offending the school staff.

At a minimum, however, it is very important that you come into an IEP meeting, whether an initial meeting or later, with as much information as possible as to the types of accommodations and services that your child needs in order that you can be sure that the school staff is doing what they should be doing in developing an appropriate program for your student. If you decide it is premature to bring an outside professional to the meeting, it is nonetheless helpful to have consulted with outside professionals to have a clear idea of the types of services and accommodations that should be included in the IEP so that you can make informed requests of the school district and/or make sure that the proposals that they are offering are sufficient.

If you have struggled with the school to get the initial meeting and have the impression that the school staff is not sophisticated about how to respond to the needs of a child with ADHD, it may be worthwhile to bring outside clinicians to an IEP meeting even though it may offend some of the school staff. In preparing for an IEP meeting at which you intend to be accompanied by an outside clinician, it is useful to review how you will approach the school staff and encourage the outside professionals to do so in a manner that is collaborative rather than confrontational. Different clinicians have different personalities and orientations to such meetings. It is important to assess this in advance and to come into the meeting with as positive an orientation to working with the school staff as possible.

In addition to the participation of outside clinicians, or in lieu of such participation, it is generally a good idea to bring at least one person along as an observer and friendly presence. It is never a good idea for a parent to go to a meeting alone. If two parents are not available, whether because it is a one parent household or the second parent cannot attend, it is best to arrange for a close friend, extended family member, or some other significant person to attend with the parent. This person should be given the role of note taker for the parent. It is important to review with that person the role in order that they not inadvertently step on toes when the parent was seeking a more restrained approach to the school staff.

What to do when you find out that your child has the right to be evaluated for a disability years after they have started having problems in school?

Dear Mr. Cohen,

Despite being very bright, my daughter was falling behind in first grade. She was diagnosed with ADD and this was discussed during a parent teacher conference.

She barely got by, but made it to second grade, and fell even further behind. We met with the teacher, and asked she be evaluated because we thought there may be something going on affecting her learning other than or along with her ADD. At that time we did not know anything of the ADA/Section 504 process, and were not informed. Months later, we found my daughter was being punished because of not completing classroom assignments.

When we asked about the evaluation, they said we never gave them anything saying she had ADD, so they were under no obligation to do anything, but kept telling us we had to work with her at home.

It is now five weeks until the end of the school year, and we still have nothing, and they can not say whether there is a problem or whether my daughter will pass second grade. I want to file with the OCR and place my daughter in a private school.

Could you please go over this process and advise on what else can be done?

AM

Dear AM,

While it is generally wise to inform the school of any outside diagnoses, including ADHD, their obligation to evaluate is not triggered by the provision of a diagnosis by an outside clinician, but rather by a referral for evaluation, coupled with a determination that there is reason to suspect a disability is present. Since you asked about an evaluation, you should have been informed of the referral process, which would have triggered the timelines for completion of evaluations. If the school decided not to conduct an evaluation, they were legally required to inform you of their decision and that you had the right to request a due process hearing to challenge the denial of the evaluation.

However, if you did not put your request in writing, you should consider doing so immediately, including reference to the prior requests that you made orally. Further, the ADHD by itself might have been sufficient to cause your child's academic problems. If she is having problems and ADHD was suspected, the school should have conducted an evaluation to determine if she had ADHD and whether it was adversely affecting her school performance.

As to filing a complaint against the school district, you have several options. First, you referenced filing a complaint for violation of Section 504. You can do this by going to the website of the US Department of Education, Office for Civil Rights.

You also have a right to request a due process hearing against the school district for violating Section 504. You can do this by sending a request for a hearing to the school superintendent and special education director. You should also request a copy of the district's Section 504 and ADA policies (these are public records) and for the district to identify the 504 coordinator.

Finally, because your child may be eligible for special education under IDEA, you could also file a complaint with the state education agency or file a request for a due process hearing with the school district. However, if it is possible to work things out with the school district without an adversarial procedure, that is preferable.

Can a school district stop special education services because a studentís IQ is of average range?

Dear Mr. Cohen,

Can a school district take a child off an IEP because his IQ is of average range? Per the school district he has been failing because he does not complete his homework. He has had the coding of LD for the most of his school life, but now with his medical coding of ADHD the district feels he does not have LD.

The district is now putting him on a 504, without his FBA. This student has failed for the past five years. What would you recommend?

Thank you,

Kim

Dear Kim:

School districts may only terminate special education services after a full evaluation and determination that the child no longer meets the criteria for special education. Their criteria require that the child have a disability that adversely affects school performance and which requires special education intervention.

Many children with disabilities have average or above average IQ's. The presence of an average or above average IQ by itself is not a disqualifying characteristic for eligibility for special education. In fact, the law specifically provides that a child is not excluded from special education just because he or she is receiving passing grades.

It appears that the school district is unaware that a child can be eligible for special education under the category Other Health Impaired if the child has been determined to have attention deficit hyperactivity disorder which is adversely affecting the child's performance. ADHD should not be a basis for eligibility due to a learning disability, but is a basis for eligibility under the OHI category.