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Children’s Medical Conditions and Special Education written by Michele Hancock addressed whether children with ADHD and other medical conditions qualify for special education. Dennise Goldberg published, Students with ADHD can be Eligible for an IEP at the Special Education Advisor in response to Michele’s article. We asked our own special education attorney, Katie Kelly, Ph.D., J.D, to provide her professional insights on this topic. Her response follows.

At the crossroads between law and disability, there are often no precise answers. The issue of  Other Health Impaired (OHI) coverage for ADHD is a brilliant example of this. Bear with me while I try to clarify why there is no correct answer to the OHI/ADHD question.

ADHD Coverage Under OHI
Basically, the law states that there is a provision for ADHD under OHI.  Although this seems simple and clear on it’s face, legally, there is a inherent quagmire in the statute: need. To meet the criteria of OHI for ADHD, the student must not only demonstrate a chronic or acute effect from the disorder, they must show a need for services.  Unfortunately, the term “need” has no definition or standard associated with it under IDEA.

The intent of the law was to cover kids who really, truly struggle, not kids with good GPA’s whose parents are looking down the road to testing accommodations for the SAT, or extra time for homework completion or parents who want the school to be in charge of getting the student’s homework back and forth.   The ADHD category is, rightly or wrongly, often seen by districts as a designation ripe for “gaming”  by high achieving families who want to keep up a student’s GPA and get them extra time on a standardized college admissions test.  Schools are rightly hesitant to supply already limited resources to kids such as these who are not terrifically impacted.  The policy behind the law is that special education is designed to help students who are in danger of drowning academically, despite normal educational and parental supports.

ADHD-Related Behavioral Issues
One factor that sometimes impacts the equation is behavior.  If the student has a string of ADHD-related  behavioral issues, some schools will be more likely to give an IEP as a way to move a student towards increased supervision in an effort to reduce the student’s ability to disrupt class or act out.  But even this is not standard across districts.  Some schools prefer not to give an IEP so they can suspend the student more easily when they’re disruptive (in my personal experience, this is done to motivate the parent to medicate or seek private counseling for the student).  Again, there is no clear legal standard as to what constitutes need in seeking an OHI designation for ADHD relative to behavior, so the level of behavior needed to trigger an OHI designation is up to the district.

ADHD and Medication
The final issue that is often associated with ADHD/OHI  has to do with medication.  Although, legally, the school may not approach the subject with a family, it is the elephant in  the room.  Many kids w/ ADHD are competent when medicated and do not need accommodations.  Since ADHD is a medical condition, schools expect parents to medicate in the same way they expect parents of diabetics to medicate their children.  Parents may balk at medicating, feeling that medication is not necessary. Schools then get mad at the parent for expecting the school to fix something the school thinks is the parent’s obligation to fix. Like I said, not a legal point, but one that should be recognized as a hidden factor.

So, as you can see, this is a gray area.  Legally, yes, kids w/ADHD fall under OHI.  But there is a legal nuance that many people miss in these discussions: need. Does the student actually need special education services? Letters from OSEP (the Office of Special Education Programs) say that a high GPA is not a disqualifying factor for a designation of OHI.  But, OSEP, as well as IDEA,  both call for the student to have, not just a ADHD diagnosis, but some “actual need for services”.  OSEP clarifies need as a “demonstrated adverse effect” on the student’s education caused by the ADHD  leading to a “specific need for services”.   School districts vary widely over what constitutes both “adverse effect” and  “need”, and neither term is statutorily defined.   Classroom failure almost always constitutes a need.   Without failure, most school districts are allowed to make the decision based on their district’s determination of need.   In effect, this means that although most districts are comfortable with giving a 504 plan, they will balk at giving IEP services for ADHD without a compelling reason.   Parents can make a case, or ask for an IEE (independent educational evaluation) to get an expert’s report claiming need but even then it can be difficult to meet the burden set by a district for an OHI designation.   In the age of diminishing resources in special education, the OHI designation for ADHD is getting harder and harder to come by.

So, bottom line…getting an IEP for OHI/ADHD is very fact and district specific. The law allows for it if there is a need, but sets no standard for the type or level of need.  The more data the parent has documenting an adverse effect caused by the ADHD, the better the chances of getting an IEP.