AD/HD under IDEA

What You Need To Know About AD/HD Under The Individuals With Disabilities Education Act (By Matthew Cohen, JD)

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Q: Is AD/HD covered under the “Other Health Impaired” category of IDEA?

A: Yes. According to the U.S. Department of Education, children diagnosed with AD/HD who meet the eligibility criteria under “Other Health Impaired” (OHI) have always been eligible for special education services. While this was clarified by the 1991 Policy Memorandum issued by the U.S. Department of Education, the NEW regulations implementing the Individuals with Disabilities Education Act (IDEA) Amendments of 1997, issued March 12, 1999, for the first time explicitly incorporate AD/HD within the definition of “Other Health Impaired”.

Q: What are the criteria for eligibility for special education under the OHI category due to AD/HD?

A: In order for a student to qualify for special education under the OHI category, the following criteria must be met: a) the student must be diagnosed with AD/HD by the school district, or the school must accept the diagnosis rendered by another qualified professional; b) the AD/HD must result in limited alertness to academic tasks, due to heightened alertness to environmental stimuli; c) the effects of the AD/HD must be chronic (long-lasting) or acute (have a substantial impact); d) this must result in an adverse effect on educational performance; e) the student must require special education services in order to address the AD/HD and its impact.

Q: What does “adversely affects educational performance” mean?

A: An adverse effect on educational performance can incorporate all aspects of the child’s functioning at school, including educational performance as measured by grades or achievement test scores. It can also be manifested through behavioral difficulties at school; and impaired or inappropriate social relations; impaired work skills, such as being disorganized, tardy, having trouble getting to work on time and difficulty with following the rules. Schools are required to address the effects of a child’s disability in all areas of functioning, including academic, social/emotional, cognitive, communication, vocational and independent living skills.

Q: Does my child have to be failing in order to qualify for special education under the OHI category?

A: No. In fact, under the NEW 1999 regulations, the fact that a child is progressing from grade to grade is not by itself a basis to deter-mine that he or she does not have a suspected disability. Failing grades may be evidence of a disability, but are not a prerequisite to establishing a disability. Conversely, the fact that a child is getting failing grades does not automatically mean the child has a disability or is entitled to special education.

Q: If the child must need special education services in order to qualify under OHI, does this mean my child needs to be put in a “special education class” in order to qualify for services?

A: No. Special education services are defined in the statute as specially designed instruction, which may be available within a range of settings, including specially designed instruction within the regular classroom. The term “special education services” refers to the specially designed services contained in the Individual Education Plan (IEP). Special education is not a place or a classroom.

Q: If my doctor diagnoses my child with AD/HD, does that mean he or she will automatically qualify for special education?

A: No. The school district is required to consider your outside evaluation, but is not obligated to follow it. If a referral is made by you, your outside clinician, or a member of the school staff, the school district must determine if an evaluation is indicated because of a suspicion that the child may have a disability. If the school decides not to conduct an evaluation, they must notify you of the decision, inform you of the reasons behind the decision, and give you information regarding your right to request a due process hearing to challenge that decision. On the other hand, before the school determines eligibility, it must conduct a multidisciplinary evaluation, which must include consideration of any outside evaluations you have obtained. Once that evaluation is complete the school will use the criteria described above to determine if the child meets the eligibility criteria for OHI. Consult your state’s special education regulations for timelines within which an evaluation must be completed after a referral is made. These regulations are available at your state’s Department of Education, or you can obtain a brief statement of your special education rights from your school district.

Q: What type of information should be considered in determining an adverse effect on educational performance?

A: Both the school district evaluation team and any outside clinician should obtain as much information as possible about the child’s school functioning. This would include an interview with the child; an interview with the parent; an observation of the child in the learning environment; review of grades, academic records, disciplinary records (if any) and other school records. In addition, this may also include the completion of behavioral rating scales by the parents, the teachers, and sometimes the student, as well as anecdotal reports from teachers. Consideration should be given to the child’s current and historical functioning. The use of behavior rating scales which address AD/HD symptoms can be especially helpful because they can provide quantitative data for evaluating the severity of the problems.

Q: Who is responsible for evaluating whether my child has AD/HD?

A: If you or the school staff suspect your child has AD/HD or any disability adversely affecting his or her school performance, a referral to the school for an evaluation for special education should be made. The parents, private professionals, and school staff all have the right to make a referral for evaluation for eligibility for special education. The school must then do the evaluation, or explain to the parents the reasons the school is not doing the evaluation and inform the parents of their right to request a hearing to challenge the school’s decision. If the school agrees to do the evaluation, it must be done at no cost to the parents. Some schools require a medical evaluation, as a component of the school evaluation, to determine if a child has AD/HD. If the school requires a medical evaluation, it must be provided at no cost to the parent. Parents have the right to obtain a private evaluation at any time, at their own expense. Parents may request a private evaluation at district expense if the district has conducted an evaluation that the parents are dissatisfied with. The school then must either agree to pay for the private evaluation or request an impartial due process hearing to prove that the district evaluation was appropriate.

Q: Is a medical evaluation required in order to determine if my child has AD/HD?

A: No. For educational purposes, local school district policy determines whether a medical evaluation is required. The school may require an evaluation, in which case it must pay for it. Alternatively, the school district may utilize its multidisciplinary team, including a psychologist or other professional qualified to diagnose AD/HD, to make the determination for educational purposes. Of course, a medical evaluation may also be desirable, as it can rule out other causes for the problem and determine if medication would be an appropriate of the child’s treatment.

Q: Speaking of medication, can a school district require my child to take medication, or to take it as a prerequisite for getting special services?

A: No to both questions. Parents have the exclusive legal right to determine if their child should receive medication. Special function-education services can not be predicated on your agreement to have your child take especial-medication.

Q: My child has been determined eligible for a Section 504 plan. Does that mean he or she is automatically eligible for services under OHI under IDEA?

A: No. The standard for eligibility under Section 504 is broader and more flexible than the standard under IDEA. Of particular importance: in order to qualify for IDEA services under OHI, the child must need special education services. By contrast, a child may be eligible under Section 504 if they have a diagnosed physical or mental impairment, including AD/HD, which substantially limits (affects) learning and requires special education OR related services. This means that children who need assistance with preferential seating, untimed tests, or help in taking medication from the school nurse may qualify for protection under Section 504, even though they do not need special education so as to qualify for services under IDEA.

Q: My child is already eligible for accommodations under Section 504. What can OHI eligibility offer that is not available under Section 504?

A: Technically, a child is entitled to a free appropriate public education (FAPE) under both laws. This means that both can offer a range of interventions, from minor accommodations in the classroom (such as preferential seating), to substantial services (such as special education services and social work services). However, all school districts have an established special education delivery system, while many school districts have little or any dedicated 504 delivery systems. For more expensive services, IDEA also offers advantages, because the school districts are reimbursed for a substantial portion of their cost by the state and federal governments, while no 504 expenses are reimbursed with either state or federal funds. Most importantly, however, the procedural safeguards available under IDEA are far more extensive and protective of parents’ rights than those under Section 504. For example, IDEA contains extensive rules relating to the rights of parents to participate in the decision making concerning their child’s Individual Education Plan and placement. These rules also enumerate in detail what the content of the IEP must be, including requirements for regular reporting to the parents and specific time periods in which they must be reviewed and updated. By contrast, Section 504 contains little detail on implementation of the Section 504 plan. In addition, for children who are having behavioral difficulties, IDEA requires that the IEP contain positive behavioral intervention strategies and sets out very detailed safeguards limiting the types of disciplinary action that schools can take, particularly for behavior that is related to the child’s disability. By comparison, Section 504 offers far fewer procedural safeguards. (See the IDEA/Section 504 comparative article by the author in the Summer 1997 issue of ATTENTION!® magazine.)

Q: Is it always better for my child to be eligible under OHI, rather than Section 504?

A: No. Some children with AD/HD do not need services under either Section 504 or IDEA. Some children may need accommodations, but do not have a sufficient level of educational interference from their AD/HD to warrant eligibility under IDEA. In addition, if accommodations available under Section 504 are sufficient for the child, Section 504 may be an easier way to get the help the child needs.

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