Other Health Impaired

Table of Contents

Long Covid Covered as a Disability — White House (Added July 28, 2021)

Covid 19 is of course not always fatal and a majority of sufferers recover complete. However, there are a substantial number of patients who continue to suffer from what is sometimes called “long Covid.” The White House issued a Fact Sheet on the ADA along with resources available to long Covid sufferers suggesting when individuals with the disorder would be covered under federal disability law. This document and related links is provided here instead of our COVID 19 page because it is anticipated people with the disorder will be around a lot longer and need accommodations a lot longer than the pandemic itself.

Biden-Harris Administration Marks Anniversary of Americans with Disabilities Act and Announces Resources to Support Individuals with Long COVID

The link above addresses a broader range of issues than just resources for individuals with long COVID disorder. For other discussions, see:

CNN: White House Announces Resources to Help People with Long Covid

Politico: Biden Administration says Long Covid can be considered a Disability Under Federal Law

U.S. New: Long Covid can be Considered a Disability White House Says

Federal Definition

“Other health impairment” means 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, Tourette’s Syndrome, and sickle cell anemia; and adversely affects a child’s educational performance. The list of chronic or acute health problems included within this definition is not exhaustive. Children with attention deficit hyperactivity disorder (ADHD) and attention deficit disorder (ADD) may be classified as eligible for services under the “other health impairment” category in instances where the ADD/ADHD is a chronic or acute health problem that results in limited alertness, which adversely affects the child’s educational performance resulting in the need for special education and related services. While it is recognized that the disorders of ADD and ADHD vary, hereafter, the term ADD will be used to encompass both disorders.

Important Note regarding the Diagnosis of ADHD:

According to the US Department of Education, a medical or clinical diagnosis is not required with ADHD. This means that school psychologists as far as the federal government is concerned may diagnose for school eligibility purposes if they are appropriately trained and experienced in doing so, and if the school has a policy that permits it. Not all states do permit all school psychologists to diagnose ADHD. In Arizona, their state rules for OHI restricts the right to diagnose to doctoral level school psychologists only. In Minnesota, a school psychologist must also be licensed by the Minnesota state licensing board to diagnose ADHD. In North Carolina, state statute allows school psychologists to perform any/all functions assigned to them by the school employing them. The listing here is far from exhaustive, so it is important to know your state rules. Additionally ADHD is often mimicked by a variety of medical disorders as well as CAPD, which only audiologists are qualified to diagnose. Which is one reason why one of the major manufacturers of a stimulant drug for ADHD (Ritalin or methylphenidate) has always said that “Adequate diagnosis requires the use not only of medical but of special psychological, educational, and social resources.” NASP has issued a position paper entitled Diagnosis and Treatment of Attention Disorders: Roles for School Psychologists. That paper is actually silent on whether or not school psychologists should or could diagnose ADHD, but, like the manufacturer of Ritalin, concludes “The appropriate diagnosis of ADD/ADHD requires a collaborative effort using multiple sources of information, regardless of the training or credential of the professional(s) involved.” Within that context, even if prohibited from actually making a diagnosis, school psychologists not meeting their state or local school standards may still provide a critical role in gathering the data needed for another service provider to make the diagnosis.

Within the context of Other Health Impairments, school psychologists are most likely to be involved with the evaluation and identification of students with Attention Deficit Hyperactive Disorder. While some generic references are also included in the paragraphs below, an issue with which school psychologists are typically NOT directly involved is central auditory processing disorder (CAPD), or just auditory processing disorder (APD). Children with a (C)APD diagnosis are in a similar position to that of children with ADHD twenty five years ago, with many schools still uncertain of where or how to label them. And as for children with ADHD, the simple answer to that question is wherever they seem to fit best based upon their needs, either as having a specific learning disability (SLD) or . . . as being other health impaired (OHI.)

There continues to be some debate in professional circles regarding CAPD. However, it is the official position of the American Speech-Language Hearing Association (ASHA) that “the quality and quantity of scientific evidence is sufficient to support the existence of (central) auditory processing disorder [(C)APD] as a diagnostic entity, to guide diagnosis and assessment of the disorder, and to inform the development of more customized, deficit-focused treatment and management plans.” It has additionally been recognized by the ICD 10 (H93.25), in the courts and by OSERS as a potentially qualifying disability under the IDEA. Which for our purposes seems sufficient to settle the matter, even though some insurance companies still regard assessments for CAPD as experimental .

Although school psychologists are not qualified to diagnose CAPD, the symptoms of CAPD are most often confused with the behaviors displayed by children who have been diagnosed with an attention deficit hyperactive disorder. Therefore, it is important for school psychologists who have been asked to evaluate a child for ADHD to be able to identify those behaviors which more likely than not should trigger a recommendation for an additional evaluation by a qualified audiologist. That information is also provided below.

Definition:

IDEA states that:

Other health impairment means 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—

(i) 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

(ii) Adversely affects a child’s educational performance. [§300.8(c)(9)]

Attention Deficit Hyperactive Disorder

New 7/27/2016: The Office for Civil Rights has issued additional guidance for schools regarding children with ADHD. “Over the last five years, OCR has received more than 16,000 complaints that allege discrimination on the basis of disability in elementary and secondary education programs, and more than 10 percent involve allegations of discrimination against students with ADHD. The most common complaint concerns academic and behavioral difficulties students with ADHD experience at school when they are not timely and properly evaluated for a disability, or when they do not receive necessary special education or related aids and services. ” Included in the link above is a 34 page Resource Guide. Additionally, OCR also issued a two page Know Your Rights Document for parents.

Today’s guidance provides a broad overview of Section 504 and school districts’ obligations to provide educational services to students with disabilities, including students with ADHD.

Back in the 1980’s, some states were arguing that their schools should not be identifying children with an ADD diagnosis as other health impaired because instead of being lacking in vigilance, the children so identified were actually hyper-vigilant. To many of us in the field, those arguments never made sense, nor did they make sense to the regulatory agencies for IDEA and Section 504, respectively, the Office of Special Education and Rehabilitative Services (OSERS) or the Office for Civil Rights (OCR). They issued a Joint Memorandum in 1991 to clarify their position on the issue. Then a second Letter of Clarification was issued in 1993 by OCR (links to these letters are also posted under the Spedlaw/OCR tab.) Regulatory changes were in the 1999 FR, reflected in the definition of OHI carried over from those regulations in the 2006 FR reported above. (ADHD now explicitly included as an example in the definition.)

The premiere and most authoritative organization, with multiple resources on AD/HD is Children and Adults with Attention Deficit/Hypeeractivity Disorder (CH.A.D.D.)

There has been a continuing debate over the role of medication in treating AD/HD. Those debates reached an apex, however, back in the 1980s, when a number of class action lawsuits, instigated in part by the Church of Scientology, were lodged against C.H.A.D.D. alleging a conspiracy between C.H.A.D.D. and the pharmaceutical industry in an effort to increase their profits. ALL of those lawsuits failed. Most were dismissed by the court “with prejudice.” One link below (with multiple additional links) is provided for those interested in reviewing those historical events.
Health Central

The 2006 FR included a Congressional attempt to leave the decision regarding the appropriate use of those medications in the hands of parents and their physicians, in effect stripping schools of their power to force parents to put their children on psychotropic medications. It is relatively brief .

§ 300.174 Prohibition on mandatory medication.

(a) General. The SEA must prohibit State and LEA personnel from requiring parents to obtain a prescription for substances identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)) for a child as a condition of attending school, receiving an evaluation under §§ 300.300 through 300.311, or receiving services under this part.

(b) Rule of construction. Nothing in paragraph (a) of this section shall be construed to create a Federal prohibition against teachers and other school personnel consulting or sharing classroom-based observations with parents or guardians regarding a student’s academic and functional performance, or behavior in the classroom or school, or regarding the need for evaluation for special education or related services under § 300.111 (related to child find).

(Approved by the Office of Management and Budget under control number 1820-0030)

(Authority: 20 U.S.C. 1412(a)(25))

Comprehensive Evaluation:

The 2006 FR not only requires a school system to evaluate for a disabiity but also to complete whatever assessments may be necessary to identify all that student’s needs, whether commonly related to the disability or not. In the following case, a judge expressed that requirement in anohter way, finding that because the district had not evaluated a student with ADHD for specific learning disabilities, they had failed to provide him with all the services he needed and, as a result, also denied him a Free Appropriate Public Education.

D.B. v. Bedford County School Board, District Court, April 2010 In this case, a hearing officer had found that Bedford County had provided a child who had been found eligible as OHI with FAPE. The parents appealed. The judge said that it was clear that the district had failed to evaluate the child for a specific learning disability, had failed to provide him with FAPE, and that the H.O. had “erred in finding otherwise.” Other evidence was cited, including the fact that after four years of sped, he was still not reading anywhere near grade level. The Decision was for the parents.

The child in the case following had multiple diagnoses, including ADHD. However, the child also had a hearing impairment, which the school system failed to assess or address. As a result, the court found the school system had violated the child’s right to FAPE and also found for the parent

November 6, 2015. Phyllene W v. Huntsville City Board of Education (11th Circuit, 10/30/2015) (26 pages)
Keywords: SLD, Hearing Impaired, ADHD, Comprehensive evaluation, tuition reimbursement

Published? No

Decided for: the Parent

M.W. had hearing problems from shortly after birth. She had also been diagnosed as ADHD. She had problems in learning and was referred for an evaluation in second grade. A vision and hearing screening were normal, but based on state criteria she had a severe discrepancy between ability and achievement and was identified as SLD.

The child continued to experience problems and continued to receive services as SLD. At the end of fifth grade, the parents told the school their child was experiencing hearing loss, an observation confirmed by her classroom teacher. The school system never followed up on that information.

Moving on, the child is now in the tenth grade and the parent reported that she was being fitted for a hearing aid. The school still did not consider whether the hearing loss could be adversely affecting her academic performance. The parent removed the child from public school, placed her in a private school, and sued for tuition reimbursement. What’s interesting here is that the hearing officer found in favor of the board, and when the case was appealed to the district court, the district court judge affirmed the hearing officer’s decision.

The case then went to the 11th circuit, which reversed, illustrating once again that it is never over until the fat lady (in this case, the 11th Circuit) sings. The parents argued that when the school learned that the child was being fitted for a hearing aid, it had a duty to evaluate her further to determine the effects of the hearing loss on her academic performance and language development. The 11th Circuit agreed.

Minor legal point: claims must be filed within the state’s statute of limitations, here two years; but evidence that is older than two years substantiating the parents’ claim IS admissible.

We conclude that the Board violated the procedural requirements of the IDEA by failing to evaluate M.W. when faced with evidence that she suffered from a suspected hearing impairment. See e.g., Draper, 518 F.3d at 1281. As a result of its failure to obtain necessary medical information regarding M.W.’s hearing, the Board further failed to provide her with a FAPE. The lack of medical information rendered the accomplishment of the IDEA’s goals impossible because no meaningful IEP was developed, and the IEPs put into place lacked necessary elements with respect to the services that M.W. should have been provided

The case was remanded back to the district court to determine the amount of equitable relief to be provided.

In the next case, also reported under Guy’s Log for 2014, the court found that the evaluation WAS comprehensive, but that the eligibility group only considered whether or not the child’s intelligence and achievement scores were severely discrepant based on the state formula.

August 21, 2014. V.M. v. Sparta Township, July 3, 2014 (New Jersey District Court)
Key Words: Dyslexia, discrepancy, sole criterion
Decided for: The parents
Published? Yes

The district court judge found using a discrepancy formula as sole criterion for determining eligibility fatally flawed.

In this case, a student diagnosed with ADHD, dyslexia, and deficits in reading, writing, and arithmetic was found ineligible for services by his school system. The school system appealed, and after eight days of hearings, the hearing officer upheld the decision of Sparta. The parents appealed. The problem here that the district court identified was not in the comprehensiveness of the evaluation process, but in the thoroughness of the decision making process in determining eligibility based on that information.

The school’s decision not to label the student appeared from the text of the eligibility report to have been solely based upon their finding that

“B.M.] does not meet criteria for specific learning disability because there is not a severe discrepancy between current achievement and intellectual abilities in one or more of the prescribed areas.”

The school psychologist was asked whether all of the other information she had collected was applied in determining eligibility. She replied that it was helpful in understanding the student. The questioning proceeded.

“Q. So do they — but do they help determine whether the student will be eligible for special education and related services?

Not in terms of that discrepancy formula.
I asked you — does this play into the determination in any way for determining whether a student would be eligible for special education and related services?
It just gives us—
Yes or no.
— No.”

The district court judge only determined that the parents prevailed on the issue of identification; the parents were also seeking compensation for services they had provided and for their attorney. Those issues were referred back to the Magistrate judge. .

For our article on applying evaluation data in a defensible way to identify students when using a discrepancy metholology, see: Yes, Virginia

While federal regulations now require LEAs to consider the state’s criteria for identifying children as SLD whether using the historical discrepancy or an RTI methodology, those same regulations ALSO say

Consistent with
§ 300.304(b) and section 614(b)(2) of the
Act, the evaluation of a child suspected
of having a disability, including an SLD,
must include a variety of assessment
tools and strategies and cannot rely on
any single procedure as the sole
criterion for determining eligibility for
special education and related services.
This requirement applies to all children
suspected of having a disability,
including those suspected of having an
SLD. p. 46646

2006 IDEA Regulations

The judge’s summary of what is required by federal and (in this instance) New Jersey regulations is in this writer’s estimation worth boilerplating for every school psychological report

Next there is this case where a school system apparently had completed an adequate evaluation, but failed to utilize that data in individualizing an appropriate program for the student..

Kevin T. v. Elmhurst Community School District, District Court Illinois 2002. Another win for the parent of a student diagnosed with ADHD whose school system graduated him without checking to see if he had met the goals of his IEP. What is of particular interest here for school psychologists is that the school district called upon its school psychologist to rebut the testimony of the parents’ experts that the student’s decrease in IQ was due to factors other than their failure to provide him with an appropriate IEP. The school psychologist’s assertions were vague and unsubstantiated and the hearing officer did not find her to be a credible witness . . . not what your district wants to find out only after they’ve called their school psychologist to the witness stand. Brief excerpts from the judge’s ruling:

[The witness] who is a psychologist and not an expert in special education, gave evasive and inconsistent answers regarding Kevin’s intellectual ability and the reasons for his decrease in IQ and academic test scores. Moreover, her opinion that the decrease in Kevin’s IQ scores can be explained by the “statistical structure” does not account for why or how his IQ score dropped by almost 20 points over nine years.Ms. Johnson, who is a psychologist and not an expert in special education, gave evasive and inconsistent answers regarding Kevin’s intellectual ability and the reasons for his decrease in IQ and academic test scores. Moreover, her opinion that the decrease in Kevin’s IQ scores can be explained by the “statistical structure” does not account for why or how his IQ score dropped by almost 20 points over nine years.

Kevin possessed average intellectual potential but his IQ and academic achievement scores dramatically decreased from 1990 to 1999. Despite knowing of this decrease and of Kevin’s poor grades at York, the District failed to review or revise Kevin’s IEPs to address his increasing academic difficulties. Accordingly, this Court finds that the District failed to provide to provide Kevin with a FADE and thus reverses IHO’s decision that Kevin made sufficient progress under his IEPs to provide him with an educational benefit

[T[his Court GRANTS Plaintiffs Kevin T., W.T. and K.T.’s Motion for Summary Judgment [22-1] and DENIES Defendant Elmhurst Community School District No. 205’s Motion for Summary Judgment [31-1]. Therefore, this Court reverses the decision of the Independent Hearing Officer and an orders that the District: (1) provide Kevin with a free education until he turns twenty-one and one additional year of compensatory education; and (2) reimburse Kevin’s parents for expenses incurred at Acacia after the District stopped its funding of Kevin’s education before this Court’s entered its stay put order. The Court, having disposed of the litigants’ claims, directs the clerk of the court to enter a Rule 58 judgment and to terminate this case from the court’s docket. It is so ordered.

The excerpts above do not fully encompass all the deficiencies identified in the district’s program, nor all of the reasons why the Hearing Officer’s ruling was reversed in favor of the parents; the reader is referred to the actual decision (link above) for a more detailed discussion of those matters.

For an example of a district “win” (if it can be called that) also see our web page on Forest Grove v. T.A. where, despite an evaluation that was indisputably less than comprehensive, the school system ultimately prevailed after two visits to district court, one visit to the U.S. Supreme Court, and two visits to Circuit Court. What is of particular relevance to school psychologists is the parent’s allegation that they unilaterally placed their child in a private school because a school psychologist had unilaterally declined to test their child for ADHD, telling them, they said, that even if he did have ADHD, it “wouldn’t make any difference.” It is of course possible that this case would have taken the direction it did even without that “trigger.”

Additional links to C.H.A.D.D.’s resources may be found at this website (along with other links to ADHD resources) on our Sped Resources/Attention Deficit Hyperactivity Disorder page.

Rating Scales Commonly Used by School Psychologists in Evaluating for ADHD (listed alphabetically)

Achenbach System of Empirically Based Assessment (ASEBA). Scored on eight empirically based syndromes and six DSM-oriented scales, Internalizing, Externalizing, and Total Problems ● Syndrome Scales: Anxious; Withdrawn/Depressed; Language/Motor Problems; Attention Problems; SelfControl Problems; Anxious/Depressed; Aggressive/ Rule-Breaking; and Somatic Complaints

ASEBA Catalog

Behavior Assessment System for Children Third Edition.

A comprehensive set of rating scales and forms including the Teacher Rating Scales (TRS), Parent Rating Scales (PRS), Self-Report of Personality (SRP), Student Observation System (SOS), and Structured Developmental History (SDH). Together, they help you understand the behaviors and emotions of children and adolescents.

Benefits

Uses a multidimensional approach for conducting a comprehensive assessment
Strong base of theory and research gives you a thorough set of highly interpretable scales
Ideally suited for use in identifying behavior problems as required by IDEA, and for developing FBAs, BIPs, and IEPs
Enhanced computer scoring and interpretation provide efficient, extensive reports
Normed based on current U.S. Census population characteristics
Differentiates between hyperactivity and attention problems with one efficient instrument

Conners Third Edition

Ordering Information

Professionals will benefit from the following enhancements:

A large representative normative sample based on the 2000 U.S. census data
A refined focus on ADHD in school-age children with a new age range (6–18 for parent and teacher forms, and 8–18 for self-report forms)
Strengthened Diagnostic and Statistical Manual of Mental Disorders: Fifth Edition (DSM-5™)* connections
Clear applications in clinical settings that help identify children with behavioral difficulties

Screening

For an ADHD Screening Test, see our page on the Vanderbilt ADHD Rating Scales

Central Auditory Processing Disorder

The problem some states seem to have been having in categorizing children with a CAPD diagnosis has been their state regulations calling, not just for a medical evaluation, but for a medical diagnosis as well. This was not problematic with respect to ADHD, because appropriately trained physicians are quite qualified to make an ADHD diagnosis. However, physicians are NOT qualified by virtue of their training and expertese to diagnose CAPD. Several respondents to the original draft regulations asked that CAPD, like ADHD, be explicitly listed in the revised OHI definition. OSERS addressed the issue thusly.

Comment: A few commenters expressed concern about determining a child’s eligibility for special education services under the category of other health impairment based on conditions that are not medically determined health problems, such as ‘‘central auditory processing disorders’’ or ‘‘sensory integration disorders.’’ One commenter recommended that the regulations clarify that ‘‘chronic or acute health problems’’ refer to health problems that are universally recognized by the medical profession.

Discussion: We cannot make the change requested by the commenters. The determination of whether a child is eligible to receive special education and related services is made by a team of qualified professionals and the parent of the child, consistent with § 300.306(a)(1) and section 614(b)(4) of the Act. The team of qualified professionals and the parent of the child must base their decision on careful consideration of information from a variety of sources, consistent with § 300.306(c). There is nothing in the Act that requires the team of qualified professionals and the parent to consider only health problems that are universally recognized by the medical profession, as requested by the commenters. Likewise, there is nothing in the Act that would prevent a State from requiring a medical evaluation for eligibility under other health impairment, provided the medical evaluation is conducted at no cost to the parent. p46550-46551

While the requirement for a medical evaluation is left up to the states, as far as this writer knows, requiring a medical diagnosis for conditions not universally recognized by (or identifiable by) the medical profession has not been addressed by OSERS or by any court.

That is not to say that the question of CAPD and OHI eligibility has not been addressed by a court ; it was by this California District Court in 2014, and the case is widely cited by CAPD advocates.

E.M. v. Pajaro Valley Unified School District, District Court, July 15, 2014.

This eligibility case at first involved a finding that the student was ineligible based on a finding that there were no severe discrepancies between ability and achievement. The district court also found that the diagnosis of a central auditory processing disorder could not be considered an Other Health Impairment.

The parents appealed to the Ninth Circuit which found the District Court erred in not considering one of the reports and remanded. It went back to the District Court, where the original verdicts were upheld, and went back again to the Ninth. Here, nine years after the initial action, the Ninth determined that central auditory processing disorder could be classified under OHI but that the school district had not acted unreasonably in 2005 so relief to the plaintiffs was denied. The reasons for the district court decision was that since there was no severe discrepancy between ability and achievement, then finding that the student was OHI when there was no discrepancy would be illogical.

The DOE in California then joined with the plaintiffs citing the Joint Memorandum of 1991 in support of their view that a condition could be classified under more than one label. The court concluded “Finally, while we recognize that a child with an auditory processing disorder may qualify for special educational services under the “other health impairment” category, we conclude that Plaintiffs cannot show that PVUSD was unreasonable in 2005 in failing to diagnose E.M. under the OHI category. Our review of the record reveals a dearth of any evidence that in 2005 E.M.’s auditoryprocessing disorder manifested itself by limiting E.M.’s alertness or that the disorder was due to chronic or acute health problems. (As a sidenote, CA does not require a medical diagnosis in determining OHI eligibility.)

Qualified Examiners: Appropriately trained audiologists may diagnose a central auditory processing disorder. Under both the IDEA and 504, a student must also be provided with a comprehensive evaluation including assessments designed to address any and all suspected needs arising out of that disability. To qualify as OHI, documentation would be required showing an adverse affect on educational performance; or for services under 504, documentation of a substantial limitation resulting from the disability.

(Central) Auditory Processing Disorders: The Role of the Audiologist

Other articles and informational pamphlets from ASHA

Auditory Processing Disorder

Understanding Auditory Processing Disorders in Children

For School Psychologists: Although school psychologists are not involved in the evaluation of CAPD per se, an understanding of APDs is important to avoid misdiagnoses. In addition to ruling out an attention deficit hyperactivity disorder, a psychological evaluation may be needed in order to rule out other disorders sometimes mistaken for APD, including autism, aspergers, and dyslexia; and a speech pathologist’s evaluation may be needed to rule out a language disorder.

Some relevant references:

Central Auditory Processing Disorder v. Attention Deficit Hyperactivity— How Does One Distinguish

What’s the Difference between CAPD and ADHD? Understood.org

Differentiating APD from ADHD and Other Disorders Auditory Processing Center

Although school psychologists do not evaluate for APD, audiologists, speech language pathologists, and school psychologists can certainly screen for the disorder. One instrument commonly mentioned by professionals for children seven and older is the: