asktheadvocate2

Debra: Your e-mail to the ADDHelpline was forwarded to me for response. Before I start, I must advise you that I am an attorney licensed to practice law in Illinois. I focus a great deal of my practice on special education matters. As such, I am familiar with federal law on this issue. However, your e-mail does not say what state you are from. This could be important because state laws vary from state to state. Also, federal court decisions vary from circuit to circuit. Moreover, the Court's decision on whose facts to accept and or whose interpretation of the law is correct cannot be predicted. Therefore, my I do not make any guarantees about the accuracy of this advice or any result. However, I can offer some general advice.

First, under fairly recently revised regulations to IDEA (20 USC 1415), ADHD is now a disability under the OHI classification. However, before any child can be found eligible under IDEA, in addition to having a recognized disability, there must be a showing that the disability is having an adverse educational impact. Second, under the law and at your request, they must either conduct a case study evaluation (CSE) or send you a letter explaining why they will not do so. They must also give you a full explanation of your rights under IDEA, including a list of low cost legal assistance in your area. One of your rights is to file for due process to challenge their decision. Normally, that is done by sending a certified letter to the superintendent and the principal requesting due process and setting forth your reasons. In Illinois, that request is sent to the State Board of Education who appoints an impartial hearing officer (IHO) to hear the case. Thee are a lot of rules associated with a due process hearing and it is a good idea to get an attorney who works in this area. Third, under federal law, if they refuse to do an evaluation, you have two choices: either go due process and try to get the IHO to order them to do it or get an independent educational evaluation on your own. If you prove that their refusal was wrong, they have to reimburse you for your costs.There is an element of risk here because the IHO may disagree with you and then, you would be responsible for your own costs. Also, you must give the school district 10 days advance notice of your intent to get the IEE. They may change their mind. Failure to give them notice could hurt your chances to get reimbursement if you win down the line. Finally, you can file complaints with the U.S. Justice Department, Office of (Special) Education and /or your state board of education. I hope this is helpful to you. Please feel free to e-mail me at any time if you have more questions. Steven Glink