The Approaching Epidemic of Attention Deficit Disorder.

School Leaders May Use Preventive Legal Measures to Weigh Eligibility and Services

Asked recently to name a frightening epidemic sweeping the schools that starts with an "A," I quickly responded "AIDS."

"No," the questioner confidently insisted, "it's ADD/ADHD."

When one considers the signs of this disorder, its pervasive potential is obvious. The diagnostic criteria listed for attention deficit hyperactivity disorder in the American Psychiatric Association's Diagnostic and Statistical Manual-Revised include these:

* is easily distracted by extraneous stimuli;

* often blurts out answers to questions before they have been completed;

* has difficulty sustaining attention in tasks or play activities;

* often talks excessively;

* often does not seem to listen to what is being said to him or her; and

* often loses things necessary for tasks or activities at school or at home.

The manual lists 14 such criteria and requires eight to be present for at least six months. Moreover, the diagnostic criteria include a "mild" category where this requirement is met but the educational impairment is minimal. Physicians and psychologists often exercise broad discretion in issuing an affirmative diagnosis, implying or specifying a special entitlement.

Broad Criteria

The margin for discretion in obtaining such a diagnosis is amplified elastically when sampling, from other such sources, the criteria for attention deficit disorder (without hyperactivity): excessive daydreaming, "spacey" appearance; hypoactive, lethargic; socially reticent or diminished involvement; rarely impulsive or disruptive.

When the understandable parental gravitation toward socially acceptable diagnoses for lack of desired school success is added to the discretionary latitude of mental health professionals, one sees why ADHD and ADD are approaching epidemic levels, especially among economically advantaged families. Examining the criteria, one wonders how many children do not qualify. For those who do not, related diagnoses such as dyslexia, dyspraxia, dysgraphia, dyscalculia, and dysnomia seem similarly contagious.

The educational prescriptions parents seek from school districts range from classroom accommodations, such as administration of medication or adjustment in tests, to costly private placements.

How much is legally required? The increasing frequency and stridency of this question are attributable not only to the escalating level of requests for services, but also to the soaring costs of special education and the anti-taxation pressures of an aging population caught in a flat economy.

The "how much" question encompasses two sequential sub-issues: eligibility (who is covered?) and, for those who are eligible, procedures and services (what is their entitlement?). Eligibility is currently of foremost importance in terms of legal enforcement, which usually involves a due process hearing or an Office for Civil Rights complaint investigation.

Gaining Eligibility

In response to a well-organized ADD/ADHD lobby, the offices of the federal Department of Education in charge of civil rights enforcement, special education, and regular elementary/secondary education issued an unusual joint memorandum on Sept. 16, 1991.

This group concluded that the existing coverage of the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act make unnecessary an additional legal category for ADD/ADHD.

Eligibility under IDEA is a matter of meeting the separately specified criteria for one or more of some 13 enumerated disabilities, such as other health impairment, mental retardation, serious emotional disturbance, or specific learning disability, and also needing special education.

Eligibility under Section 504 is focused more, although not exclusively, on regular education. The three relevant eligibility criteria for disability under Section 504 are generic and connected to each other. These criteria are:

* The student has a mental or physical impairment;

* This impairment affects a major life activity (e.g., learning); and

* The impairment is substantial.

Other Section 504 coverage categories ("record of" or "regarded as") are not relevant to determine the eligibility of ADD/ADHD students for specialized services, at least according to the U.S. Office for Civil Rights, the agency responsible for enforcing Section 504 and its recent companion statute, the Americans with Disabilities Act, in the schools. In any event, the definition of disability under Section 504, which is identical to that under the ADA, is broader than the definition of disability under IDEA.

At the bottom line, some ADD/ADHD students are covered by IDEA, and several others are covered by Section 504 and ADA. On the other hand, some students are not entitled to special procedures or services unless state law or local policy extends beyond these federal minimums.

Evaluating Procedures

Under both IDEA and Section 504/ADA, school districts are responsible for providing notice, evaluation, and other procedural safeguards, such as a due process hearing, when district personnel know or have reason to suspect that the child may meet the respective criteria.

The primary procedure, as measured by findings of violations, is the evaluation step--having the child evaluated by a knowledgeable team. "Knowledgeable" in this context is in relation to the child, the disability, and the placement options.

In practice, the key is to have the evaluation team focus on the criteria of the relevant laws, not on those of the American Psychiatric Association criteria or some other psychological or medical source. The diagnosis by the parents' physician or other specialized consultant should be considered, but it is not controlling. The primary evidence will be educational--e.g., grades, test scores, attendance data, and disciplinary records.

If the child is eligible under the IDEA, the individualized education plan should specify the appropriate special education services. Under Section 504/ADA, the same individualized focus applies except that (1) an IEP is permitted (and encouraged by OCR) but not required, and (2) the extent of the substantive obligation is measured by "commensurate opportunity" or "reasonable accommodation."

Specialized Services

In any event, the potential services include the following items, depending on the student's needs and the applicable law:

* physical adaptations, such as using study carrels, locating the student's desk near the teacher, and posting relevant rules prominently;

* instructional adjustments, such as using multiple modalities; adjusting the schedule and pacing; simplifying and repeating step-by-step instructions; tailoring homework assignments; selecting modified textbooks and workbooks; and using tape recorders, computers, and other specialized equipment;

* test modifications, such as lengthening the time of delivery, adjusting the format, and using alternate assessment techniques;

* behavior modification and self-management strategies;

* administration of medication; and

* other related services, such as counseling.

In reference to Section 504, the joint memorandum also states: "Other provisions range from consultation to special resources and may include reducing class size; use of one-on-one tutorials; classroom aides and note-takers; involvement of a services coordinator ... and possible modification of non-academic times such as lunchroom, recess, and physical education."

The problem, however, is that such wide-ranging illustrations raise the expectations of parents without reminding them of the cost-conscious limitation of "reasonable accommodation" that, arguably, the courts have inferred as applicable to student cases under Section 504/ADA.

In any event, under IDEA and Section 504/ADA, most of the applicable services relate to placement in the regular classroom. "Special education" in terms of a separate placement, particularly a private school, is the exception rather than the rule for eligible ADD/ADHD students. Whether thought of as special education or related services, the adaptations and supplements are guided by the "least restrictive environment language under both IDEA and Section 504/ADA.

Careful Consideration

The crisis concerning ADD/ADHD students is overblown, at least as a legal matter. Although perceived acutely by the particular parents and advocated aggressively by the Children and Adults with Attention Deficit Disorders, or CHADD, the needs of ADD/ADHD students range widely from non-eligibility to entitlement for full IDEA services.

Many such students are legally covered by the relatively broad definition and relatively limited procedures and services under Section 504/ADA. The practical focus for school districts, in terms of preventive-law priorities, is to provide, by policy and practice, (1) evaluation by a knowledgeable team according to the applicable legal criteria and (2) classroom accommodations for behavior management and teaching/testing.

ADD/ADHD and related disorders need not become an epidemic. An inoculation of legal prudence, which redirects a knee-jerk "no" or "yes" to a careful "it depends" response, can help school districts determine eligibility and prescribe services with available treatment techniques in a coordinated system of special and regular education.