Students with ADHD can be eligible for an IEP

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 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.

via Students with ADHD can be eligible for an IEP | Special Education & IEP Advisor.

Jimmy Kilpatrick, a national recognized professional special education advocate since 1994.

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