Learn Your Special Education Laws, Special Education Rights, and Share IEP Goal Ideas

Aug 13
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by Dennise Goldberg

I can’t believe in the year 2012 we are still discussing whether a child with ADHD can qualify for an IEP.  Many people continue to point out that there are 13 disability categories listed in the Individuals with Disabilities Education Act (IDEA) and Attention Deficit Hyperactivity Disorder (ADHD) isn’t one of them.  The 13 categories are

  1. autism
  2. deaf-blindness
  3. deafness
  4. emotional disturbance
  5. hearing impairment
  6. mental retardation (to be changed to intellectual disabilities at the next authorization of IDEA)
  7. multiple disabilities
  8. orthopedic impairment
  9. other health impairment
  10. specific learning disabilities
  11. speech or language impairment
  12. traumatic brain injury
  13. visual impairment including blindness

Even though ADHD is not one of the 13 categories listed above, all it takes is to dig a little deeper to find the truth.  Other Health Impairment (OHI) is defined as:

Having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome and which adversely affect a child’s educational performance.

Although ADHD is not the name of an eligibility category in IDEA it is clearly part of the definition for OHI.  All it took for us to find it was to take more than a superficial glance at the names of the eligibility categories.  There is actually extensive history behind the inclusion of ADHD in the definition of OHI.  According to the Children with ADD/ADHD -- Topic Brief:

In 1991, the Department issued a memorandum entitled "Clarification of Policy to Address the Needs of Children with [ADD] within General and/or Special Education," which was jointly signed by the Assistant Secretaries of OCR, OESE, and OSERS.

The substance of the 1991 policy clarification was included in the NPRM, and, specifically in Note 5 following §300.7 (definition of "child with a disability") -- to ensure that school administrators, teachers, parents, and other members of the general public would be fully aware that some children with ADD/ADHD are eligible under Part B. (Adding that interpretation to the NPRM was consistent with the Department's plan to include all major long-term policy interpretations related to Part B in a single regulatory document, along with the new provisions added by the IDEA Amendments of 1997.)

Although this memo issued way back in 1991 clarified that some children with ADD or ADHD may qualify for an IEP if they had a need for special education and related services it became evident to the Office of Special Education Programs (OSEP) in 1999 that it was still not being implemented correctly.  According to the Children with ADD/ADHD -- Topic Brief:

Department's 1991 policy memorandum not fully implemented.  From the public comments received on the NPRM related to ADD/ADHD (and the Department's experience in administering Part B), it is clear that the 1991 policy is not being fully and effectively implemented.

The 1999 Topic brief also states:

Adding "ADD/ADHD" to the list of eligible conditions under "OHI."   The definition of "child with a disability" in the Part B regulations has been amended to add "attention deficit disorder" ("ADD") and "attention deficit hyperactivity disorder" ("ADHD") to the list of conditions that could render a child eligible for Part B services under the "other health impairment" ("OHI") category.

As you can see this problem first arose 21 years ago in 1991, then again in 1999 and it’s still being talked about in 2012.  So how does a child with ADHD qualify for an IEP?  The answer is right in the definition of OHI,  having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to

  1. chronic or acute health problems such as attention deficit disorder or attention deficit hyperactivity disorder;  and
  2. Adversely affects a child’s educational performance.

It’s a two prong test.  Does your child have ADHD and does that ADHD adversely affect your child’s educational performance.

So the key to focus on as a parent is how your child’s ADHD adversely affects their educational performance.  According to the Disability Rights of CA website:

An “adverse effect” on educational performance may be measured by a student’s grades, but may also include consideration of other ways in which a student’s condition affects his school activities.

School districts tend to read “adversely affect” narrowly and limit it to academic performance.  The courts take a broader view of educational performance and include consideration of a student's academic, social, health, emotional, communicative, physical and vocational needs.  [Seattle School Dist. No. 1 v. B.S., 82 F.3d 1493, 1500 (9th Cir. 1996).]  Federal law also distinguishes between educational and academic performance and establishes that educational performance is a broad concept.  For example, students must be assessed by schools in all areas of suspected disability.  [20 U.S.C. Sec. 1414(b)(3)(B).]  Those areas are defined by federal regulations to include: health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.  [34 C.F.R. Sec. 300.304(c)(4).]  Academic performance is only one of the areas in which students must be assessed.  In addition to grades and standardized tests scores, schools must consider how the student’s emotional health or other conditions adversely affect his non-academic performance in social, behavioral and other domains as well.

I hope this jaunt through the history of ADHD guidance from the U.S. Department of Education has been helpful in ending the discussion once and for all whether a child with ADHD can be qualified for an IEP.  The key to IEP Land for children with ADHD will be how their ADHD affects their educational performance not whether ADHD is permitted at all.   Focus on the description above of “adverse effect” and bring in expert help when needed.



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7 Responses to “Students with ADHD can be eligible for an IEP”

  1. So does a child need to have a medical diagnosis of ADHD to get services on an IEP under OHI? or can the school saywe see these behaviors and will help with these accomadations with out a dr saying adhd? My 6 yo son has an IEP for OHI because of fibrous dysplasia (causing frequent fractures) and chiari 1 malformation (causing frequent headaches though much better after surgery). He is showing attention problems, constant motion and not working independently according to his teacher. He is not doing grade level work. Yet the school says they can not serve him for the innattention because he does not have a diagnosis to support this. We are working on possible ADHD diagnosis but the other stuff and frequent surgeries get in the way and it is not completed.

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    • Kelly,

      If your child already has an IEP it’s irrelevant whether your son has a Dx for ADHD. The SD has a responsibility to write goals for every area of need and provide assessments in every area of suspected disability. Make sure you require them to perform updated assessments including looking at all executive function and cognitive skills which include attention. If they refuse then it’s time to find an advocate or attorney to help.

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  2. Wow, thanks for this! Our district routinely states that they do not give services if just OT is needed, but this clearly states that a child with heightened alertness to environmental stimuli is a qualifier under OHI. It is amazing how they come up with language and rules that simply defy IDEA.

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  3. I wonder that one student who has ADHD cant handle transition well. She often cries or has temper tantrums when it is time to leave the lunchroom and go back to class. She has diffculty sitting still in class for more than five minutes at a time. What I can do for this student for IEP goals?

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    • Hello Jacqueline

      I ask myself the same thing can they handle transition well? I had a student in my class before that had autism and he did not like change. He would have random fits and became very violent. I would have to remove him from the classroom until he cooled off. He did have an IEP so that helped me with instruction and planning.

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  4. My 14 yr son has ADHD. He currently takes adderall daily. His teachers often have to send him to “chill out” (in school suspension) due to hisdisruptive behavior in class. He is suspended at least once or twice every year for the past 3 years.

    He is an A/B honor roll student . His teachers tell me he isn’t a bad kid, if you could just get him to pay attention and control his out burst in class. REALLY? If only I could do that.

    I have tried to get him an IEP, but the school at first told me I couldn’t request an IEP and after contacting the board of eductions he was evaluated. I was informed because of his grade we above average (even though his teachers say he should be in gifted classes making straight A’s) he doesn’t qualify for an IEP.

    I have two in- laws who are teachers, a friend who teaches IEP classes, and a mother who is a social worker. They all have told me my son DOES qualify for an IEP. But the school continues to fight me and refuses to qualify him.

    His teachers complain my son is arguemenative, doesn’t take responsibity for his actions, and continues to either make annoying sounds in class and sometimes sings.

    The principal and the IEP board have asked me what would they put on an IEP for behavior issues/goals. I feel like this is something they should be advising me on. Not to mention, I shouldn’t be writing the IEP for them, it is their job.

    I am concerned, because he starts High School next year. My son’s pricipal feels that his behavior isn’t an issue, because my son isn’t as “BAD” as some of the other problem children. I just want my son to be evaluated on his issues.

    I have to research IEP’s for kids with ADHD to find out that under OHI he may very well qualify, but the school doesn’t want to write the IEP because his grades doen’t reflect a need. They keep wanting to push a 504, but this doesn’t give him any consideration should he become suspended or expelled for his behavior

    . I have been given so much misinformation by the school, that I don’t have faith they are going to give my son the consideration he needs.

    His teachers keep telling me his grades are fine, and an IEP requires that the child not be on grade level. I have printed out all the information i can find on line and have submitted it to the IEP board. I still think they are going to deny my child his IEP for behavior. I know there are resources at the school that could help him and the teachers deal with the situations as they arise.

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  5. Shawna, I am pretty much in the same boat. My daughter is being tested for ADHD in April and as far as getting help or advice from the school I’m also on my own. I asked the teacher to make a list so my child can remain focused( it works at home and makes her feel a sence if acvomplishment) the teacher isn’t create enough to know how to make a list.
    I did hear if your child has a diagnosis and you contact the teacher and the principal, possibly the board of education too, they are required by law to do an IEP and yes they should come up with the steps not you.

    When we do have our appt and when the results come in I am going to request the behavior therapist write a letter recommending an IEP. I’m hoping they can do this. I’ve been denied many services, such as speech therapy it’s ridiculous and so frustrating.

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