Recently our staff was asked if children with Attention Deficit Hyperactivity Disorder were included under the American with Disabilities Act of 1990.

This parent wrote that if in fact Attention Deficit Hyperactivity Disorder was included in the Disabilities Act, her child was being discriminated against by his school. Parents want the very best for their children. And people tend to want everything that they feel that they are entitled to from their school. But sometimes we can expect too much from our public agencies, and sometimes we look in the wrong places for help.

The answer to this question is somewhat long and complicated. So we will begin with writing that while someone with Attention Deficit Hyperactivity Disorder may qualify for protection under the Americans with Disabilities Act, not everyone with the diagnosis of Attention Deficit Hyperactivity Disorder will qualify. And that may include you or your child.

The Americans with Disabilities Act was established by Congress in 1990. The purpose of the Act is to end discrimination against persons with disabilities when it comes to housing, education, public transportation, recreation, health services, voting, and access to public services. It also aims to provide equal employment opportunities for people with disabilities.

The Americans with Disabilities Act was written to offer protections to individuals with disabilities, not individuals with any particular diagnosis. The Americans with Disabilities Act seeks to protect individuals with significant impairments in function.

By the way, it is estimated that the population of the United States is over 300 million persons. And it is estimate that about 19% of persons have some type of long-lasting condition or disability. That would be somewhere near 60 million persons. This includes about 3.5% with a sensory disability involving sight or hearing, about 8% with a condition that limits basic physical activities such as walking or lifting. It also includes millions of people with mental, emotional, or cognitive impairments. See the details in the Census 2000 Brief titled, �Disability Status 2000� at Census dot gov/prod/2003pubs/c2kbr-17 dot pdf

Since Congress enacted the Americans with Disabilities Act courts have had several challenges in defining the scope of the Act.

• What exactly is a disability?

• Who would be defined as having a disability?

• Is having a diagnosis the same as having a disability?

These are some of the questions that the courts have had to wrestle with, not to mention the questions related to how schools, work places, public transportation agencies, and more, are to implement the Act in daily operations with both employees and customers.

So, to the Question: Is Attention Deficit Hyperactivity � Attention Deficit Hyperactivity Disorder � included in the Americans with Disabilities Act?

The answer is Yes, No, or Maybe.

The Americans with Disabilities Act defines �disability� as a physical or mental impairment that substantially limits one or more �major life activities,� such as walking, seeing, hearing, or learning. Having a diagnosed impairment, such as Attention Deficit Hyperactivity Disorder, does not necessarily mean that an individual is disabled within the meaning of the Americans with Disabilities Act.

The Americans with Disabilities Act does provide for mental conditions or mental illnesses, and potentially Attention Deficit Hyperactivity Disorder fits in this category. But as with physical impairments, the diagnosis of a mental illness or mental impairment such as Attention Deficit Hyperactivity Disorder is not sufficient by itself to qualify for protection under Americans with Disabilities Act. Again, having a �diagnosis� is not the same as having a �disability.�

We are not lawyers, and our readers probably are not either, but it is interesting to look at some of the recent court cases regarding the Americans with Disabilities Act that directly related to children or adults with Attention Deficit Hyperactivity Disorder.

These two cases seem to expand the definition of major life activities to include concentration and cognitive functions:

• Brown v. Cox Medical Centers (8th Cir. 2002), where reportedly the court stated that the ability to perform cognitive functions is a major life activity;

• Gagliardo v. Connaught Laboratories, Inc. (3d Cir. 2002), where reportedly the court held that concentrating and remembering (more generally, cognitive function) are major life activities.

But the courts have placed limitations on the scope of the Act as well, and have not just tried to accommodate everyone with Attention Deficit Hyperactivity Disorder. The court has its limits, and they have ruled that the Americans with Disabilities Act has its limits.

For example Knapp v. City of Columbus (2006 U.S. App. LEXIS 17081) is the story of three firefighters with Attention Deficit Hyperactivity Disorder who wanted the City to make accommodations for them in their jobs. The U.S. Court of Appeals for the Sixth Circuit declined to extend Americans with Disabilities Act coverage to three firefighters who had Attention Deficit Hyperactivity Disorder.

Some firemen had claimed that Attention Deficit Hyperactivity Disorder substantially limited their ability to learn, so the City should make accommodations for them. But the court held that the firefighters failed to establish that their Attention Deficit Hyperactivity Disorder met the standards to qualify as a disability under the Americans with Disabilities Act.

A very important limitation of Act involved a ruling from an earlier Supreme Court case with Toyota in 2002 which the Sixth Circuit Court used in this case with the firefighters. The Sixth Circuit applied the U.S. Supreme Court�s test in Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).

Under the Toyota Motor ruling the courts must consider whether the individual making the claim is unable to perform the variety of tasks central to most people�s daily lives, not whether the claimant is unable to perform the tasks associated with his or her specific job.

When applying this test, the Sixth Circuit wrote that when a person who is seeking protection or accommodations under the Americans with Disabilities Act can fully compensate for an impairment through medication, personal practice, or an alteration of behavior, a disability, as defined by the Disabilities Act, does not exist.

In other words, if a child, teen, or adult with Attention Deficit Hyperactivity Disorder can get the task done or get the job done by using medications, applying behavioral management techniques, receiving counseling, using biofeedback, using Attend, or other treatment interventions, then they do not have a disability that is protected under the Americans with Disabilities Act.

In this court case, all three firefighters testified that taking Ritalin controlled their symptoms, and that they were able to fulfill their family and work obligations. Thus, an Americans with Disabilities Act disability was not found.

So, it would follow that if you, or your child, could function pretty well at work or in school when taking medication or Attend, or using some other treatment, no disability as defined under the Americans with Disabilities Act would exist � at least according to the 6th Circuit Court.

Also, it seems that as a result of this ruling, employers under the Sixth Circuit do not need to make accommodations for employees with Attention Deficit Hyperactivity Disorder under these conditions:

• When the disorder has not been shown to substantially impair their ability to perform tasks central to daily life;

• When the Attention Deficit Hyperactivity Disorder symptoms can be improved by medication or other treatments.

Here is a pretty good list from a major university of the conditions that must be met for Attention Deficit Hyperactivity Disorder to qualify for coverage and protection under the American with Disabilities Act of 1990:

• The Attention Deficit Hyperactivity Disorder must cause significant impact or limitation in a major life activity or function;

• The individual must be regarded as having a disability;

• The individual must have a record of having been viewed as being disabled;

• The applicant must also be able to perform the essential job functions with or without accommodations to qualify as an individual with a disability under the meaning of the Act.

To establish that an individual is covered under the Americans with Disabilities Act, documentation must indicate that a specific disability exists and that the identified disability substantially limits one or more major life activities. Documentation must also support the accommodations requested.

• The evaluation must be conducted by a qualified professional, such as psychologist, neuropsychologist, psychiatrist, or other medical doctor who has had comprehensive training in the differential diagnosis of Attention Deficit Hyperactivity Disorder and direct experience with an adult Attention Deficit Hyperactivity Disorder population. The name, title, and professional credentials of the evaluator should be clearly stated. All reports should be on letterhead, typed, dated, signed and otherwise legible.

• Documentation must be current. The diagnostic evaluation must adequately address the individual�s current level of functioning and need for accommodations. In most cases, the evaluation must have been completed in the last three years. A school plan, such as an Individualized Education Plan (IEP) or 504 Plan, is insufficient documentation for a university, but can be included for consideration as part of a more comprehensive evaluative report.

• Documentation necessary to substantiate the diagnosis must be comprehensive and include:

• Evidence of early impairment. Historical information must be presented to demonstrate symptoms in childhood which manifested in more than one setting.

• Evidence of current impairment, which may include presenting attentional symptoms and/or ongoing impulsive/hyperactive behaviors that significantly impair functioning in two or more settings. In addition, the diagnostic interview should include information from, but not limited to, the following sources: developmental history, family history, academic history, medical history, and prior psycho-educational test reports.

• Alternative diagnoses or explanations should be ruled out. The evaluator must investigate and discuss the possibility of dual diagnoses and alternative or coexisting mood, behavioral, neurological, and/or personality disorders that may confound the diagnosis of Attention Deficit Hyperactivity Disorder.

• Relevant testing information must be provided and all data must reflect a diagnosis of Attention Deficit Hyperactivity Disorder and a resultant substantial limitation to learning.

• Documentation must include a specific diagnosis. The diagnosis must include specific criteria based on the DSM-IV, including evidence of impairment during childhood, presentation of symptoms for at least the past six months, and clear evidence of significant impairment in two or more settings. The diagnostician should use direct language in the diagnosis of Attention Deficit Hyperactivity Disorder, avoiding the use of such terms as �suggests,� �is indicative of,� or �attentional problems.�

• An interpretive summary must be provided that demonstrates that alternative explanations have been ruled out and that explains how the presence of Attention Deficit Hyperactivity Disorder was determined, the effects of any mitigating measures (such as medication), the substantial limitation to learning caused by the Attention Deficit Hyperactivity Disorder, and the rationale for specific accommodations.

Obviously, dealing with government regulations with their specific definitions can be very frustrating and difficult. It would be important to have realistic expectations in regards to the American with Disabilities Act and Attention Deficit Hyperactivity Disorder.

We would recommend getting legal advice from an attorney who specializes in educational law, or has expertise in the Americans with Disabilities Act, to learn more about how the Americans with Disabilities Act may apply in a specific case to a particular individual with Attention Deficit Hyperactivity Disorder.