Additional definitions for IDEA and special education Lawyer Manual

Other Health Impairment (“OHI”)

OHI can cover multiple impairments, but by far the impairment most commonly at issue in showing OHI eligibility is AD/HD. 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 concerning the educational environment. The OHI must:

• Be due to chronic or acute health problems (which may include asthma, ADD, ADHD, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette’s syndrome); and
• Adversely affect a child’s educational performance.

In advocating that a student is eligible for special education services under OHI, you must prove both that there is a health problem and that it is the health problem that is adversely affecting a child’s educational performance. 34 CFR §300.8(c)(9)(i-ii).

Emotional Disturbance (“ED”)

To be eligible for special education services in the ED category, a student does not need a specific diagnosis. Instead, the standard under IDEA is that a student must exhibit one or more of the following characteristics over a long period and to a marked degree that adversely affects a child’s educational performance:

• Inability to learn that cannot be explained by intellectual, sensory, or health factors
• An inability to build or maintain satisfactory interpersonal relationships with peers and teachers
• Inappropriate types of behavior or feelings under normal circumstances
• A general pervasive mood of unhappiness or depression
• A tendency to develop physical symptoms or fears associated with personal or school problems 34 CFR §300.8(c)(4)(i)(A-E)

Under this standard, IDEA does not state how long a “long period” of time is, but the Office of Special Education Programs indicates that it is between two to nine months. Letter to Anonymous, 213 IDELR 247 (OSEP 1989). Additionally, IDEA states that ED does not apply to students that are “socially maladjusted,” unless it is determined that they also have an emotional disturbance. 34 C.F.R §300.8(c)(4)(ii).

Learning Disability: (“LD”)

IDEA states that a student is eligible for LD if he has a disorder that affects his ability to process or understand language, either spoken or written that can affect the student’s ability to listen, read, speak, spell, write, or do math, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. 34 CFR §300.8(c)(10).

Understanding the theories and pitfalls of qualifying a student with LD

Traditionally, students were qualified as having a learning disability when it could be shown that there was a “severe discrepancy” between IQ and actual academic achievement. This discrepancy is defined as a 22 point difference, or 1.5 standard deviations, if using a bell curve. Under this model, you also had to show that the difference was explained by a processing disorder.

After the 2004 reauthorization of IDEA, federal law provided additional guidelines and requirements for identifying students with learning disabilities. 34 C.F.R. §§300.307-311. Under these regulations, states must adopt criteria for determining whether a child has a specific learning disability that:

• Must not require the use of a severe discrepancy between intellectual ability and achievement
• Must permit the use of a process based on the child’s response to scientific, research-based intervention, commonly referred to as Response to Intervention (“RtI”); and
• May permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability. 34 C.F.R.

§300.307. Also, the IEP team must determine that the child’s learning difficulties are not primarily the result of a visual, hearing or motor disability; mental retardation; emotional disturbance; cultural factors; environmental or economic disadvantage; limited English proficiency; or due to lack of appropriate instruction in reading or math. 34 C.F.R. §300.309.