New Jersey Association of Justice
American Bar Association
National Employers Lawyers Association

Does a Student With ADHD Get a 504 Plan or an IEP?

Many students with Attention Deficit/Hyperactivity Disorder (ADHD) can receive special education and related services through an Individualized Education Plan (IEP) pursuant to the federal Individuals with Disabilities in Education Improvement Act of 2004 (IDEA) and the New Jersey Administrative Code addressing the education of students with disabilities. However, students with ADHD can qualify for either an IEP or a 504 Plan, depending on how their disability impacts their education. If the student’s disability is so severe that they cannot receive an educational benefit without specialized instruction, the student should have an IEP. If the student does not need specialized instruction, but rather modifications to the educational environment or accommodations to complete the standard coursework, then a 504 Plan is warranted. One of our experienced New Jersey education attorneys can help you navigate this process.

Section 504 of the Rehabilitation Act of 1973 (Section 504) is a federal anti-discrimination statute that prohibits disability discrimination in any program receiving federal funds, including schools. Under Section 504, a student with disability is someone who has a physical or mental impairment that substantially limits one or more major life activities. For students with ADHD, that might include concentrating, executive functioning, thinking, or reading. One way Section 504 protects students with ADHD from discrimination is by requiring that they receive a free and appropriate public education (FAPE). Under Section 504, a FAPE is an education that is designed to meet the needs of the student with a disability as adequately as the needs of nondisabled students are met. School districts can meet this standard by developing an IEP or a 504 Plan. To determine the appropriate educational interventions, evaluations are necessary.

Both IDEA and Section 504 require New Jersey school districts to identify and evaluate any student who might need special education or related services due to a disability. In students with ADHD, some potential indicators that evaluations are warranted might be restlessness and inattention that are unusual for the student’s age, trouble organizing and managing time, social issues, or anxiety stemming from schoolwork. Even students who are academically high-achieving must be evaluated if they are suspected of having a disability and needing accommodations or other related services in school. If your child needs support but has been denied services, an experienced education lawyer may be able to help you.

If a student with ADHD is evaluated and found ineligible for special education under the IDEA, they will not receive an IEP. However, that finding does not relieve New Jersey school districts of their responsibility to consider the student’s need for accommodations and modifications under Section 504. In making that determination, schools must question whether the student’s ADHD impacts any major life activity, and if so, do they need accommodations or services to ensure their needs are being met as adequately as their nondisabled peers. For a student with ADHD whose needs can be met through a 504 Plan, that plan might include additional time to complete assignments, quiet testing rooms, preferential seating in the classroom, or organizational assistance. One of our education lawyers can help you determine what accommodations are necessary.

In 2016, the Office of Civil Rights (OCR) of the United States Department of Education issued a Dear Colleague letter to address the growing number of students with ADHD in the population of students needing education accommodations in school pursuant to Section 504 and its implementing regulations. From 2011 through 2015, OCR received 16,000 complaints from parents alleging discrimination by schools based on their child’s disability. Approximately 11% of those complaints related specifically to students with ADHD who were not receiving reasonable accommodations in school.

The most prevalent hurdles students with ADHD face in obtaining accommodations are the failure of school districts to identify and evaluate these students. Students with ADHD may never be referred for evaluation, may spend several years receiving general education interventions that are insufficient to meet their needs, or may receive inadequate assessments. Even students with ADHD who have been properly identified and evaluated often struggle to receive the appropriate 504 Plans and have those 504 Plans implemented with fidelity.

If you believe your child needs an IEP or 504 Plan to ensure access to their education, reach out to our New Jersey education attorneys for a consultation.

DISCLAIMER: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Client Reviews
We had a wrongful termination issue combined with a denial of unemployment insurance. Chris Eibeler was our primary attorney. His partner Bob Smith also consulted and gave us good advice. They were both so kind, caring, and professional. They guided us though a very tough time and a positive outcome versus a prior employer. They were also able to reverse our denial of unemployment insurance. I cannot recommend Smith and Eibeler highly enough. The entire staff is very professional, personable, and caring. Tom Wilson
I went to Smith Eibeler LLC for a last minute unemployment matter. Chris, Diane and his staff were very professional and easy to talk to. They provided knowledgeable insight and also kept me in the loop with the what was happening. I would not hesitate to go to him again. John Jung
Chris Eibeler (and the whole team) is very knowledgeable in all aspects of employment/unemployment here in NJ. They break down the most difficult aspects of the law, which allows you to conceptualize and better understand the complexities of the NJ Labor & Employment system. Smith Eibeler should be your first call regarding any Employment, workforce, or Labor questions here in New Jersey. I highly recommend them. Brian Allen
I approached Chris Eibeler regarding an unemployment case in early 2016. Him and his staff are some of the most professional people I have ever dealt with. The process took a while, but his approach to hard questioning helped me win my case. He knows how to get the job done and I am glad I went to him. I would recommend him to anyone in the future who asks for a lawyer. Thank you Chris! Tim F.
I highly recommend the office of Smith Eibeler for employment related issues, particularly anything related to restrictive covenants or post-employment contracts. I found Smith Eibeler via the web and cannot believe how fortunate I am to have found them. My case was handled by Bob Smith who represented me in a potential lawsuit by my former employer for violation of a post-employment contract (not a restrictive covenant per se). Bob was professional, friendly, understanding, and above all extremely helpful. Bob helped me avoid a lawsuit and was extremely knowledgeable in this field. I was thoroughly impressed with his prowess. Hopefully I will never have a legal issue related to employment again, but if I do, I will not hesitate to retain Smith Eibeler again! Gavin Tully

Results may vary depending on your particular facts and legal circumstances.