To:       Chief State School Officers                                                       Sept 16 1991

From:   Robert R. Davilla
            Assistant Secretary
            Office of Special Education and
                    Rehabilitative Services

            Michael L. Williams
            Assistant Secretary
            Office for Civil Rights
            John T. MacDonald
            Assistant Secretary and
                    Secondary Education

Subject:    Clrification of Policy to Address the Needs of Children with Attention
                    Deficit Disorder within General and/or Special Education
 
 

I.    Introduction

There is a growing awareness in the education community that attention deficit disorder (ADD) and attention deficit hyperactive disorder (ADHD) can result in significant learning problems for children with those condition.  While estimates of the prevalence of ADD vary widely, we believe that three to five percent of school-aged children may have significant educational problems related to this disorder.  Because ADD has broad implications for education as a whole, the Department believes it should clarify State and local responsibility under Federal law for addressing the needs of children with ADD in the schools.  Ensuring that these students are able to reach their fullest potential is an inherent part of the National education goals and AMERICA 2000.  The National goals, and the strategy for achieving them, are based on the assumptions that:     (1) all children can learn and benefit from their education;  and (2) the educational community must work to improve the learning opportunities for all children.

(While we recognize that the disorders ADD and ADHD vary, the term ADD is being used to encompass children with both disorders)

This memorandum clarifies the circumstances under which children with ADD are eligible for special education services under Part B of the Individuals with Disabilities Education Act (Part B), as well as the Part B requirements for evaluation of such children's unique educational needs.  This memorandum will also carify the responsibility of State and local educational agencies (SEAs and LEAs) to provide special education and related services to eligible children with ADD under Part B.  Finally, this memorandum clarifies the responsibilities of LEA's to provide regular or special education and related aids and services to those children with ADD who are not eligible under Part B, but who fall within the deifinition of "handicapped person" under Section 504 of the Rehabilitation Act of 1973.  Because of the overall educational responsibility to provide services for these children, it is important that general and special education coordinate efforts.
 

II.    Elegibility for Special Education and Related Services under Part B

Last year during the reauthorization of the Education of the Handicapped Act (now the Individuals with Disabilities Education Act), Congress  gave serious consideration to including ADD in the definition of "Children with Disabilities" in the statute.  The Department took the position that ADD does not need to be added as a seperate disability category in the statutory definition since children with ADD who require special education and related services can meet the eligibility criteria for services under Part B.  This continues to be the Department's Position.

No change with respect to ADD was made by Congress in the statutory definition of "Children with Disabilities:"  however, language was included in Section 102(a) of the Education of the Handicapped Act Amendments of 1990 that required the Secretary to issue a Notice of Inquiry (NOI) soliciting public comment on special education for children with ADD under Part B.  In response to the NOI (published November 29, 1990 in the Federal Register),  the Department received over 2000 written comments, which have been transmitted to the Congress.  Our review of these written comments indicates that there is confusion in the field regarding the extent to which children with ADD may be served in special education programs conducted under Part B.
 
 

A.    Description of Part B Part B requires SEAs and LEAs to make free appropriate public education (FAPE) available to all eligible children with disabilities and to ensure that the rights and protections of Part B are extended to those children and their parents 20 U.S.C. 1412(2); 34 CFR ss300.121 and 300.2.   Under Part B, FAPE, among other elements, includes the provision of special education and related services, at no cost to parents, in conformity with an individualized education program (IEP). 34 CFR 300.4. In order to be eligible under Part B, a child must be evaluated in accordance with 34 CFR 300.530-300.534 as having one or more specified physical or mental imparments, and must be found to require special education and related services by reason of one or more of these impairments.*  20 U.S.C. 1401 (a) (1); 34 CFR 300.5.  SEAs and LEAs must ensure that children with ADD who are determined eligible for services under Part B receive special education and related services designed to meet their unique needs, including special education and related services needs arising from the ADD.  A full continuum of placement alternatives, including the regular classroom, must be available for proving special education and related services required in the IEP.   *  The Part B regulations define 11 specified disabilities.  34 CFR 300.5(b) (1)-(11).  The Education of the Handicapped Act Amendments of 1990 amended the Individuals with Disabilities Education Act (formerly the Education of the Handicapped Act) to specify that autism and traumatic brain injury are separate disability categories.  Se section 602(a) (1) of the Act, to be codified at 20 U.S.C. 1401(a) (1).

B.     Eligibility for Part B services under the           "Other Health Impared" Category The list of chronic or acute health problems included within the definition of "Other Health Impaired" in the Part B rgulations is not exhaustive.  The term "other health impaired" includes chronic or acute impairments that result in limited alertness, which adversely affects educational performance.  Thus, children with ADD should be classified as eligible for services under the "other health impaired" category in instances where the ADD is a chronic or acute health problem that results in limited alertness, which adversely affects educational performance.  In other words, children with ADD, where the ADD is a chronic or acute health problem resulting in limited alertness, may be considered disabled under Part B solely on the basis of this disorder within the "other health impaired" category in situations where special education related services are needed because of the ADD.

C.     Eligibility for Part B services under "Other Disability Categories Children with ADD are also eligible for services under Part B if the children satisfy the criteria applicable to other disability categories.  For example, children with ADD are also eligible for services under the specific learning disability" category of Part B if they meet the criteria stated in  300.5(b) (9) and 300.541 or under the "seriously emotionally disturbed" category of Part B if they meet the criteria stated in 300.5(b) (8).

III.    Evaluations under Part B
 
 

A.     Requirements SEAs and LEAs have an affirmation obligation to evaluate a child who is suspected of having a disability to determine the child's need for special education and related services.  Under Part B, SEAs and LEAs are required to have proceedures for locating, identifying and evaluating all children who have a disability or are suspected of having a disability and are in need of special education and related services.  34 CFR 300.128 and 300.220.  This responsibility, known as "child find," is applicable to all children from birth through 21, regardless of the severety of their disability. Consistent with this responsibility and the obligation to make FAPE available to all eligible children with disabilities, SEAs and LEAs must ensure that evaluations of children who are suspected of needing special education and related services are conducted without undue delay.  20 U.S.C. 1412(2).  Because of its responsibility resulting from the FAPE and child find requirements of Part B, and LEA may not refuse to evaluate the possible need for special education and related services of a child with prior medical diagnosis of ADD solely by reason of that medical diagnosis.  However, a medical diagnosis of ADD alone is not sufficient to render a child eligible for services under Part B. Under Part B, before any action is taken with respect to the initial placement of a child with a disability program providing special education and related services, "a full and individual evaluation of the child's educational needs must be conducted in accordance with requirements of 300.532."  CFR 300.531.  Section 300.532(a) requires that a child's evaluation must be conducted by a multidisciplinary team, including at least one teacher with knowledge in tha area of suspected disability.      B.     Disagreements over EvaluationsRequirements Any proposal or refusal of an agency to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child is subject to the written prior notice requirements of 34 CFR 300.504-300.505.*  If a parent disagrees with the LEA's refusal to evaluate a child or the LEA's evaluation and determination that a child does not have a disability for which the child is eligible for services under Part B, the parent may request a due process hearing pursuant to 34 CFR 300.506-300.513 of the Part B regulations. (Section 300.505 of the Part B regulations sets out the elements that must be contained in the prior written notice to parents: 1.  A full explanation of all the proceedural safeguards available to the parents under Subpart E; 2.  A description of the action proposed or refused by the agency, an explanation of why the agency proposes or refuses to take the action, and a description of any options the agency considered and the reasons why those options were rejected; 3.  A description of each evaluation proceedure, test, record, or report the agency uses as a basis for the proposal or refusal; and 4.  A description of any other factors which are relevant to the agency's proposal or refusal.) 34 CFR 300.505(a) (1)-(4).

IV.    Obligations Under Section 504 of SEAs and LEAs to Children with ADD Found Not To Require Special Education and Related Services under Part B

Even if a child with ADD is found not to be eligible for services under Part B, the requirements of section 504 of the Rehabilitation Act of 1973 (Section 504) and its implementing regulation at 34 CFR Part 104 may be applicable.  Section 504 prohibits discrimination on the basis of handicap by recipients of Federal funds.  Since Section 504 is a cicil rights law, rather than a funding law, its requirements are framed in different terms than those of Part B.  While the Section 504 regulation was written with an eye to consistency with Part B, it is more general, and there are some differences arising from the differing natures of the two laws.  For instance, the protections of Section 504 extend to some children who do not fall within the disability categories specified in Part B.
 
 

A.     Definition Section 504 requires every recipient that operates a public elementary or secondary education program to address the needs of children who are considered "handicapped persons" under the Section 504 as adequately as the needs of nonhandicapped persons are met.  "Handicapped person" is defines in the Section 504 regulation as any person who has a physical or mental impairment which subsequently limits a major life activity (e.g., learning).  34 CFR 104.3(j).  Thus, depending on the severety of their condition, children with ADD may fit within that definition.      B.     Programs and Services Under Section 504 Under Section 504, an LEA must provide a free appropriate public education to each qualified handicapped child.  A free appropriate public education, under Section 504, consists of regular or special education and related aids and services that are designed to meet the individual student's needs and based on adherence to the regulator requirements on educational setting, evaluation, placement, and proceedural safeguards.  34 CFR 104.33, 104.34, 104.35, and 104.36.  A student may be handicapped within the meaning of Section 504 regulation, even though the student may not be eligible for special education services under Part B. Under Section 504, if parents believe that their child is handicapped by ADD, the LEA must evaluate the child to determine whether he or she is handicapped as defined by Section 504.  If an LEA determines that a child is not handicapped under Section 504, the parent has the right to contest that determination.  If the child is determined to be handicapped under Section 504, the LEA must make an individualized determination of the child's educational needs for regular or special education or related aids and services.  34 104.35.  For children determined to be handicapped under Section 504, implementation of an individualized education program developed in accordance with Part B, although not required, is one means of meeting the free appropriate public education requirements of Section 504.*  The child's education must be provided in the rgular education classroom unless it is demonstrated that education in the regular environment with the use of suplimentary aids and services cannot be achieved satisfactorily.  34 CFR 104.34. Should it be determined that the child with ADD is handicapped for purposes of Section 504 and needs only adjustments in the regular classroom, rather than special education, those adjustments are required by Section 504.  a range of strategies is available to meet the educational needs of children with ADD.  Regular classroom teachers are important in identifying the appropriate educational adaptations and interventions for many with ADD. SEAs and LEAs should take the necessary steps to promote coordination between special and regular education programs.  steps also should be taken to train regular education teachers and other personnel to develop their awareness about ADD and its manifestations and the adaptations that can be implemented in the regular education programs to address the instructional needs of these children.  Examples of adaptions in regular educationprograms could include the following: Providing a structured learning environment;  repeating and simplifying instructions about in-class and homework assignments;  supplimenting verbal instructions with visual instructions; using behavioral management techniques; adjusting class schedules; modifying test delivery; using tape recorders, computer-aided instruction, and other audiovisual equipment; selecting modified textbooks or workbooks; and tailoring homework assignments. Other provisions range from consultation to resourses and may include reducing class size; use of one-on-one tutorial; classroom aides and note takers; involvement of a "services coordinator" to oversee implementation of special programs and services, and possible modification of nonacademic times such as lunchroom, recess, and physical education. Through the use of appropriate adaptations and interventions in classes, many of which may be required by Section 504, the Department believes that LEAs will be able to effectively address the instructional needs of many children with ADD.      C.     Proceedural Safeguards Under Section 504 Proceedureal safeguards under the Section 504 regulation are stated more generally than in Part B.  The Section 504 regulation requires the LEA to make available a system of proceedural safeguards that permits parents to challenge actions regarding the identification, evaluation, or educational placement of their handicapped child whom they believe needs special education or related services.  34 CFR 104.36.  The Section 504 regulation requires that the system of proceedural safeguards include notice, an opportunity for the parent or guardian to examine relevant records, an impartial hearing with opportunity for participation by the parents or guardian and representation by counsel, and a review proceedure.  Compliance with proceedure safeguards of Part B is one means of fulfilling the Section 504 requirements.**  However, in an impartial due process hearing raising issues under the Section 504 regulation, the impartial hearing officer must make a determination bassed upon that regulation. *   Many LEAs use the same process for determining the needs of students under Section 504 that they use for implementing Part B. **   Again, LEAs and some SEAs are conserving time and resourses by using the same due process proceedures for resolving disputes under both laws.

V.   Conclusion

Congress and the Department have recognized the need to provide information and assistence to teachers, administrators, parents and other interested persons regarding the identification, evaluation, and instructional needs of children with ADD.  The Department has formed a work group to explore strategies across principal offices to address this issue.  The work group also plans to identify some ways that the Department can work with the education associations to cooperatively consider the programs and services needed by children with ADD across special and regular education.

In fiscal year 1991, the Congress appropriated funds for the Department to synthesize and disseminate current knowledge related to ADD.  Four centers will be established in Fall, 1991 to analyze and synthesize the current research literature on ADD relating to identification, assessment, and interventions.  Research syntheses will be prepared in formats suitable for educators, parents and researchers.  existing clearinghouses and networks, as well as Federal, State and local organizations will be utilized to disseminate these research syntheses to parents, educators and administrators, and other interested persons.

On addition, the Federal Resource Center will work with SEAs and the six regional resourse centers authorized under the Individuals with Disabilities Education Act to identify effective identification and assessment proceedures, as well as intervention strategies being implemented across the country for children with ADD.  A document describing current practice will be developed and disseminated to parents, educators and administrators, and other interested persons through the regional resource centers, network, as well as by parent training centers, other parent and consumer organizations, and professional organizations.  Also, the Office for Civil Rights' ten regional offices stand ready to provide technical assistance to parents and educators.

It is our hope that the above information will be of assistance to your State as you plan for the needs of children with ADD who require special education and related services under Part B, as well as for the needs of the broader group of children with ADD who do not qualify for special education and related services under Part B, but for whom special education or adaptations in regular education programs are needed.
 

If you have any questions, please contact:

Contact Person:	Office:	Phone Number
Jean Peelen Judy Schrag Dan Bonner	Office for Civil Rights Office of Special Education Programs Office of Elementary and Secondary Education	1202-732-1635 1202-732-1007 1202-401-0984