Can a District Deny My Child with ADHD an IEP in New Jersey?
Attention Deficit Hyperactivity Disorder (ADHD) is not considered to be a learning disorder. However, it can be determined to a disability under the Individuals with Disabilities Education Act (IDEA) which would make your child eligible to receive special education services.
What is the problem?
Many students are being denied coverage under IDEA. There are two laws governing special services and accommodations for students with disabilities. As stated above, one of these is IDEA. The second is Section 504 of the Rehabilitation Act of 1973. In many of these cases, the reasons stated by the schools often use Section 504 because the requirements are less stringent than those under IDEA. However, your child must get what he or she needs, and not what is easier, or less expensive, to implement.
Before moving on to What to Do, it is important for you to understand some ADHD entails, and how school districts present its reasons for its recommendations (504, IDEA, or denying any services).
ADHD falls under one of 13 categories listed in IDEA: Other Health Impaired (OHI). This category covers a variety of conditions, diseases, disorders, and injuries that substantially affect a student’s strength, vitality or alertness means to environmental stimuli, that results in limited alertness with respect to the educational environment. Your child’s condition must cause a substantial impact on his or her educational performance.
What is OHI? Other health impairments may be caused by chronic or acute health problems. This means that the problems will last for a very long time, or they are the result of an illness or accident. Some examples are asthma, ADHD, hemophilia, lead poisoning, leukemia, rheumatic fever, and sickle cell anemia. ADHD is included in the definition of OHI stated above. For example, a student with ADHD who is distracted by the everyday classroom environment and who cannot pay attention may qualify for special services and accommodations under OHI if the problem is severe enough to affect his or her learning. The COVID-19 pandemic has exacerbated this by disrupting your child’s educational, social, and behavioral life.
Besides the hyperactivity, inattention, and impulsivity mentioned above, there three types of ADHD recognized by professionals:
● the predominantly hyperactive/impulsive type,
● the predominantly inattentive type, and
● the combined type that displays both inattentive and hyperactive/impulsive symptoms.
Signs that your son or daughter may fall into one of these three types of ADHD could be: considerable restlessness or inattention; trouble organizing tasks and activities; communication or skill deficits; or significant difficulty related to beginning a task, recalling information, or completing assignments.
Again, the COVID-19 pandemic has caused students to stay at home and interfere with his or her to adequately develop a social life. Since the pandemic began, almost 40% of children have been diagnosed with ADHD or with a coexisting condition, according to an ADDITUDE (Inside the ADHD mind) survey.
Almost 70% of students with ADHD have at least one other condition listed among the 13 categories of IDEA. This or these other conditions may be overshadowed by ADHD. However, they also contribute to the suffering of the students with ADHD and their families. ADHD often coexists with other disorders. Some of these are:
- behavior disorders,
- mood disorders,
- anxiety disorder,
- tics and Tourette Syndrome,
- learning disorders,
- sleep disorders, and
- substance abuse.
What should you do?
You can dispute the school district’s decision that your child is ineligible for special education services and accommodations. Examine the reasons stated in the district’s denial letter to you. Make certain that you understand exactly what they are saying. If need be, contact a friend or special education teacher. At this point, you can even retain an attorney who practices exclusively as a special education attorney.
Most experts will advise you to request an Independent Educational Evaluation (IEE). This means that you may ask that a professional, competent evaluator, who is not employed by the school district, conduct another evaluation of your child. When you make such a request, the district must provide you with the information where you can obtain such an evaluation.
Before hiring a potential evaluator, determine if the individual has the training and experience in diagnosing and treating ADHD. Ask him or her some questions, such as:
- Have you treated or diagnosed many students with ADHD?
- Have you received training in the diagnosis and treatment of ADHD?
- How long will it take to do the evaluation?
- Do you screen for conditions that can look like ADHD?
- Will you screen for coexisting conditions for your evaluation?
- Do you consider the effects of the COVID-19 pandemic on your child in your evaluation?
This could be especially significant, since the pandemic factors have had a major impact on your child’s symptoms, such as:
- a major increase your child has spent on screen time due to remote learning, home quarantines, and online games;
- the frustration, boredom, and stress of pandemic living;
- on-line learning, without necessary time and attention of teaching staff, paraprofessional staff, and classmates;
- the limited and reduced physical activities and social isolation; and
- the possibility of losing a family member or loved one during the pandemic.
When conducting the disability evaluation, the school district cannot consider the positive effects of mitigating measures in determining if your child has a disability. For example, if your son or daughter uses medication to address ADHD, the school cannot consider the positive effects of that medication as a basis to determine that he or she does not have a disability.
What if the school district continues to deny services?
At this point, you must consider applying for a due process hearing, mediation, and appeal to the New Jersey Commissioner of Education. Further, you can file a complaint with the Office of Civil Rights of the Department of Health and Human Services in Washington, D.C., (800-368-1019).
Most public school districts are very caring and sincere in their evaluations of students who may have a disability. However, there are some schools that find it hard to keep within the confines of their special education budgets. While this is admirable from an administrative perspective, it is not what public schools are. Their very existence is based on properly attending the needs of every child in the school district. Money cannot be a limiting factor, especially when dealing with a student who has a disability.
Susan Clark Law Group, LLC
We practice only with matters dealing with special education.
Some resources for information you may wish to visit are:
ADDITUDE (Inside the ADHD mind)
Learning Disabilities Association of America
Understood for All
The Child Advocate
Office of Civil Rights
Department of Health and Human Services
200 Independence Avenue