| y our staff was asked if children with Attention Deficit | | | | exist. |
| Hyperactivity Disorder were included under the | | | | In other words, if a child, teen, or adult with ADHD can |
| American with Disabilities Act of 1990. This parent | | | | get the task done or get the job done by using |
| wrote that if in fact ADHD was included in the | | | | medications, applying behavioral management |
| Disabilities Act, her child was being discriminated | | | | techniques, receiving counseling, using biofeedback, |
| against by his school. | | | | using Attend, or other treatment interventions, then |
| Parents want the very best for their children. And | | | | they do not have a disability that is protected under |
| people tend to want everything that they feel that they | | | | the ADA. |
| are entitled to from their school. But sometimes we | | | | In this court case, all three firefighters testified that |
| can expect too much from our public agencies, and | | | | taking Ritalin controlled their symptoms, and that they |
| sometimes we look in the wrong places for help. The | | | | were able to fulfill their family and work obligations. |
| answer to this question is somewhat long and | | | | Thus, an ADA disability was not found. So, it would |
| complicated. So we will begin with writing that while | | | | follow that if you, or your child, could function pretty |
| someone with ADHD may qualify for protection under | | | | well at work or in school when taking medication or |
| the Americans with Disabilities Act, not everyone with | | | | Attend, or using some other treatment, no disability as |
| the diagnosis of ADHD will qualify. And that may | | | | defined under the ADA would exist - at least |
| include you or your child. | | | | according to the 6th Circuit Court. |
| The Americans with Disabilities Act was established | | | | Also, it seems that as a result of this ruling, employers |
| by Congress in 1990. The purpose of the Act is to end | | | | under the Sixth Circuit do not need to make |
| discrimination against persons with disabilities when it | | | | accommodations for employees with ADHD under |
| comes to housing, education, public transportation, | | | | these conditions: |
| recreation, health services, voting, and access to public | | | | When the disorder has not been shown to |
| services. It also aims to provide equal employment | | | | substantially impair their ability to perform tasks central |
| opportunities for people with disabilities. The ADA was | | | | to daily life; |
| written to offer protections to individuals with disabilities, | | | | When the ADHD symptoms can be improved by |
| not individuals with any particular diagnosis. | | | | medication or other treatments. |
| The Americans with Disabilities Act seeks to protect | | | | Here is a pretty good list from a major university of |
| individuals with significant impairments in function. By the | | | | the conditions that must be met for ADHD to qualify |
| way, it is estimated that the population of the United | | | | for coverage and protection under the American with |
| States is over 300 million persons. And it is estimate | | | | Disabilities Act of 1990: |
| that about 19% of persons have some type of | | | | The ADHD must cause significant impact or limitation in |
| long-lasting condition or disability. That would be | | | | a major life activity or function; |
| somewhere near 60 million persons. This includes | | | | The individual must be regarded as having a disability; |
| about 3.5% with a sensory disability involving sight or | | | | The individual must have a record of having been |
| hearing, about 8% with a condition that limits basic | | | | viewed as being disabled; |
| physical activities such as walking or lifting. It also | | | | The applicant must also be able to perform the |
| includes millions of people with mental, emotional, or | | | | essential job functions with or without |
| cognitive impairments. See the details in the Census | | | | accommodations to qualify as an individual with a |
| 2000 Brief titled, Disability Status 2000 at Census dot | | | | disability under the meaning of the Act. |
| gov/prod/2003pubs/c2kbr-17 dot pdf | | | | To establish that an individual is covered under the |
| Since Congress enacted the ADA courts have had | | | | ADA, documentation must indicate that a specific |
| several challenges in defining the scope of the Act. | | | | disability exists and that the identified disability |
| What exactly is a disability? Who would be defined as | | | | substantially limits one or more major life activities. |
| having a disability? Is having a diagnosis the same as | | | | Documentation must also support the |
| having a disability? These are some of the questions | | | | accommodations requested. |
| that the courts have had to wrestle with, not to | | | | The evaluation must be conducted by a qualified |
| mention the questions related to how schools, work | | | | professional, such as psychologist, neuropsychologist, |
| places, public transportation agencies, and more, are to | | | | psychiatrist, or other medical doctor who has had |
| implement the Act in daily operations with both | | | | comprehensive training in the differential diagnosis of |
| employees and customers. | | | | ADHD and direct experience with an adult ADHD |
| So, to the Question: Is Attention Deficit Hyperactivity | | | | population. The name, title, and professional credentials |
| Disorder included in the ADA? The answer is Yes, No, | | | | of the evaluator should be clearly stated. All reports |
| or Maybe. | | | | should be on letterhead, typed, dated, signed and |
| The ADA defines disability as a physical or mental | | | | otherwise legible. Documentation must be current. The |
| impairment that substantially limits one or more major | | | | diagnostic evaluation must adequately address the |
| life activities, such as walking, seeing, hearing, or | | | | individual's current level of functioning and need for |
| learning. Having a diagnosed impairment, such as | | | | accommodations. In most cases, the evaluation must |
| ADHD, does not necessarily mean that an individual is | | | | have been completed in the last three years. |
| disabled within the meaning of the ADA. | | | | A school plan, such as an Individualized Education Plan |
| The ADA does provide for mental conditions or | | | | (IEP) or 504 Plan, is insufficient documentation for a |
| mental illnesses, and potentially ADHD fits in this | | | | university, but can be included for consideration as part |
| category. But as with physical impairments, the | | | | of a more comprehensive evaluative report. |
| diagnosis of a mental illness or mental impairment such | | | | Documentation necessary to substantiate the |
| as ADHD is not sufficient by itself to qualify for | | | | diagnosis must be comprehensive and include: |
| protection under ADA. Again, having a diagnosis is not | | | | Evidence of early impairment. Historical information |
| the same as having a disability. | | | | must be presented to demonstrate symptoms in |
| We are not lawyers, and our readers probably are not | | | | childhood which manifested in more than one setting. |
| either, but it is interesting to look at some of the recent | | | | Evidence of current impairment, which may include |
| court cases regarding the ADA that directly related to | | | | presenting attentional symptoms and/or ongoing |
| children or adults with Attention Deficit Hyperactivity | | | | impulsive/hyperactive behaviors that significantly impair |
| Disorder. These two cases seem to expand the | | | | functioning in two or more settings. |
| definition of major life activities to include concentration | | | | In addition, the diagnostic interview should include |
| and cognitive functions: Brown v. Cox Medical Centers | | | | information from, but not limited to, the following |
| (8th Cir. 2002), where reportedly the court stated that | | | | sources: developmental history, family history, |
| the ability to perform cognitive functions is a major life | | | | academic history, medical history, and prior |
| activity; and Gagliardo v. Connaught Laboratories, Inc. | | | | psycho-educational test reports. Alternative diagnoses |
| (3d Cir. 2002), where reportedly the court held that | | | | or explanations should be ruled out. The evaluator |
| concentrating and remembering (more generally, | | | | must investigate and discuss the possibility of dual |
| cognitive function) are major life activities. | | | | diagnoses and alternative or coexisting mood, |
| But the courts have placed limitations on the scope of | | | | behavioral, neurological, and/or personality disorders |
| the Act as well, and have not just tried to | | | | that may confound the diagnosis of ADHD. |
| accommodate everyone with ADHD. The court has its | | | | Relevant testing information must be provided and all |
| limits, and they have ruled that the ADA has its limits. | | | | data must reflect a diagnosis of ADHD and a resultant |
| For example Knapp v. City of Columbus (2006 U.S. | | | | substantial limitation to learning. |
| App. LEXIS 17081) is the story of three firefighters with | | | | Documentation must include a specific diagnosis. The |
| ADHD who wanted the City to make | | | | diagnosis must include specific criteria based on the |
| accommodations for them in their jobs. The U.S. Court | | | | DSM-IV, including evidence of impairment during |
| of Appeals for the Sixth Circuit declined to extend | | | | childhood, presentation of symptoms for at least the |
| ADA coverage to three firefighters who had Attention | | | | past six months, and clear evidence of significant |
| Deficit Hyperactivity Disorder. Three firefighters had | | | | impairment in two or more settings. The diagnostician |
| claimed that ADHD substantially limited their ability to | | | | should use direct language in the diagnosis of ADHD, |
| learn, so the City should make accommodations for | | | | avoiding the use of such terms as suggests, is |
| them. But the court held that the firefighters failed to | | | | indicative of, or attentional problems. An interpretive |
| establish that their ADHD met the standards to qualify | | | | summary must be provided that demonstrates that |
| as a disability under the ADA. | | | | alternative explanations have been ruled out and that |
| A very important limitation of Act involved a ruling from | | | | explains how the presence of ADHD was determined, |
| an earlier Supreme Court case with Toyota in 2002 | | | | the effects of any mitigating measures (such as |
| which the Sixth Circuit Court used in this case with the | | | | medication), the substantial limitation to learning caused |
| firefighters. The Sixth Circuit applied the U.S. Supreme | | | | by the ADHD, and the rationale for specific |
| Courtýs test in Toyota Motor Mfg., Kentucky, Inc. v. | | | | accommodations. |
| Williams, 534 U.S. 184 (2002). Under the Toyota Motor | | | | Obviously, dealing with government regulations with |
| ruling the courts must consider whether the person | | | | their specific definitions can be very frustrating and |
| making the claim is unable to perform the variety of | | | | difficult. It would be important to have realistic |
| tasks central to most people's daily lives, not whether | | | | expectations in regards to the American with |
| the claimant is unable to perform the tasks associated | | | | Disabilities Act and ADHD. We would recommend |
| with his or her specific job. When applying this test, the | | | | getting legal advice from an attorney who specializes |
| Sixth Circuit wrote that when a person who is seeking | | | | in educational law, or has expertise in the Americans |
| protection or accommodations under the ADA can | | | | with Disabilities Act, to learn more about how the ADA |
| fully compensate for an impairment through medication, | | | | may apply in a specific case to a particular individual |
| personal practice, or an alteration of behavior, a | | | | with ADHD. |
| disability, as defined by the Disabilities Act, does not | | | | |