Category Archives: Diagnosis

What Qualifies as a Disability?

Medically speaking, there are countless types of disabilities.  Educationally speaking, the number disability categories is much more limited.  What sometimes causes confusion and frustration for parents and school personnel alike is that the definition of disabilities under state and federal laws differs from the medical definitions used by doctors under the DSM-5 manual.

Massachusetts

For a child in Massachusetts to qualify for an IEP, he or she must have at least one of the following specifically defined types of disabilities:  Autism, Developmental Delay, Intellectual Impairment, Sensory Impairment (Hearing Impairment or Deaf, Vision Impairment or Blind, Deafblind), Neurological Impairment, Emotional Impairment, Communication Impairment, Physical Impairment, Health Impairment, or Specific Learning Disability. 603 CMR 28.02(7).  Although this might seem like a very limited list of disabilities, they are, in fact, very broad categories that cover a wide variety of conditions.  The specific definitions under Massachusetts education law are as follows:

 

(a) Autism – A developmental disability significantly affecting verbal and nonverbal communication and social interaction. The term shall have the meaning given it in federal law at 34 CFR §300.8(c)(1).

(b) Developmental Delay – The learning capacity of a young child (3-9 years old) is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: receptive and/or expressive language; cognitive abilities; physical functioning; social, emotional, or adaptive functioning; and/or self-help skills.

(c) Intellectual Impairment – The permanent capacity for performing cognitive tasks, functions, or problem solving is significantly limited or impaired and is exhibited by more than one of the following: a slower rate of learning; disorganized patterns of learning; difficulty with adaptive behavior; and/or difficulty understanding abstract concepts. Such term shall include students with mental retardation.

(d) Sensory Impairment – The term shall include the following:

 Hearing Impairment or Deaf – The capacity to hear, with amplification, is limited, impaired, or absent and results in one or more of the following: reduced performance in hearing acuity tasks; difficulty with oral communication; and/or difficulty in understanding auditorally-presented information in the education environment. The term includes students who are deaf and students who are hard-of-hearing.

 Vision Impairment or Blind – The capacity to see, after correction, is limited, impaired, or absent and results in one or more of the following: reduced performance in visual acuity tasks; difficulty with written communication; and/or difficulty with understanding information presented visually in the education environment. The term includes students who are blind and students with limited vision.

 Deafblind – Concomitant hearing and visual impairments, the combination of which causes severe communication and other developmental and educational needs.

 (e) Neurological Impairment – The capacity of the nervous system is limited or impaired with difficulties exhibited in one or more of the following areas: the use of memory, the control and use of cognitive functioning, sensory and motor skills, speech, language, organizational skills, information processing, affect, social skills, or basic life functions. The term includes students who have received a traumatic brain injury.

 

(f) Emotional Impairment – As defined under federal law at 34 CFR §300.8(c)(4), the student exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance: an 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; or a tendency to develop physical symptoms or fears associated with personal or school problems. The determination of disability shall not be made solely because the student’s behavior violates the school’s discipline code, because the student is involved with a state court or social service agency, or because the student is socially maladjusted, unless the Team determines that the student has a serious emotional disturbance.

(g) Communication Impairment – The capacity to use expressive and/or receptive language is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: speech, such as articulation and/or voice; conveying, understanding, or using spoken, written, or symbolic language. The term may include a student with impaired articulation, stuttering, language impairment, or voice impairment if such impairment adversely affects the student’s educational performance.

(h) Physical Impairment – The physical capacity to move, coordinate actions, or perform physical activities is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: physical and motor tasks; independent movement; performing basic life functions. The term shall include severe orthopedic impairments or impairments caused by congenital anomaly, cerebral palsy, amputations, and fractures, if such impairment adversely affects a student’s educational performance.

(i) Health Impairment – A chronic or acute health problem such that the physiological capacity to function is significantly limited or impaired and results in one or more of the following: limited strength, vitality, or alertness including a heightened alertness to environmental stimuli resulting in limited alertness with respect to the educational environment. The term shall include health impairments due to asthma, attention deficit disorder or attention deficit with hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia, if such health impairment adversely affects a student’s educational performance.

(j) Specific Learning Disability – The term means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think speak, read, write, spell, or to do mathematical calculations. Use of the term shall meet all federal requirements given in federal law at 34 CFR §§300.8(c)(10) and 300.309.

 

New Hampshire and Federal Education Law

Unlike Massachusetts, New Hampshire education law simply defers to the federal educational definitions of disability, but then adds two more categories not found in the federal law.  The federal special education disability categories are as follows: mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services.  34 CFR 300.8.  The extensive definitions are as follows:

(1)

(i) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.

(ii) Autism does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (c)(4) of this section.

(iii) A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in paragraph (c)(1)(i) of this section are satisfied.

(2) Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.

(3) Deafness means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification that adversely affects a child’s educational performance.

(4)

(i) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:

(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C) Inappropriate types of behavior or feelings under normal circumstances.

(D) A general pervasive mood of unhappiness or depression.

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

(ii) Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i) of this section.

(5) Hearing impairment means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance but that is not included under the definition of deafness in this section.

(6) Mental retardation means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child’s educational performance.

(7) Multiple disabilities means concomitant impairments (such as mental retardation-blindness or mental retardation-orthopedic impairment), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. Multiple disabilities does not include deaf-blindness.

(8) Orthopedic impairment means a severe orthopedic impairment that adversely affects a child’s educational performance. The term includes impairments caused by a congenital anomaly, impairments caused by disease (e.g., poliomyelitis, bone tuberculosis), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).

(9) 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.

(10) Specific learning disability.

(i) General. Specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.

(ii) Disorders not included. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.

(11) Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child’s educational performance.

(12) Traumatic brain injury means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. Traumatic brain injury does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma.

(13) Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child’s educational performance. The term includes both partial sight and blindness.

34 CFR 300.8(c).

New Hampshire specifically references the federal definition (Ed 1102.01(t)(1)), but then also includes developmental delays and acquired brain injury as two additional categories. Ed 1102.01(t)(2 – 3).

 

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

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Hudson SEPAC to host ‘Asperger’s Syndrome vs. Autism vs. PDD-NOS’ workshop

The following information was published by Community Advocate.  You can find the original article at:  http://tinyurl.com/7ncytpb

Hudson– The Hudson Special Education Parent Advisory Council (SEPAC) is hosting a workshop by Dr. Amy Shogren on autism spectrum disorders, “Asperger’s Syndrome vs. Autism vs. PDD-NOS.” The workshop will be held Tuesday, Feb. 7, from 7 to 9 p.m., in Room A-134 at Hudson High School.

Particpants will learn how the features of each of these diagnoses vary, as well as how children diagnosed with these developmental disabilities differ in their communicative competency, social functioning, behavioral presentation, and academic trajectory, and what interventions are important to address the challenges associated with these disabilities? The seminar will assist parents and school personnel in understanding these diagnostic categories and how to intervene at home and at school.

The workshop is free, and parents and teachers are encouraged to attend. To RSVP or for more information, call 978-212-9651 or visit www.hudsonsepac.com. Hudson High School is located at 69 Brigham St.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

Who Can Diagnosis Autism Spectrum Disorder?

During my presentation on Special Education Law and Asperger’s Syndrome at yesterday’s AANE conference, a very interesting question arose.  An attendee asked who can diagnosis a disability.  That question seems simple enough, but the answer is not so simple.

The reason he asked the question was that his IEP Team told him that the school system is not able to diagnose a disability – they claimed that it is up to the parents to get that diagnosis privately.  I see this often at Team meetings.  In general, it is not true.  The evaluation that the school system performs will likely include a psychological evaluation, an educational evaluation, input from parents and teachers, and possibly a medical evaluation by a physician (at school expense!).

The school system is perfectly capable of diagnosing a learning disability.  On the other hand, it is in no position to diagnosis a physical ailment that only a physician can diagnose.  Autism Spectrum Disorder (ASD) is in between.  According to IDEA, “Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.”  34 C.F.R. 308(c)(1)(i). A developmental disability is generally defined as a mental or physical impairment identified prior to age 18.  A qualified psychologist – and one would assume that a school psychologist is qualified – should be able to diagnose autism.

What’s even more interesting, and beneficial to parents when the school is refusing to diagnose autism, is 34 C.F.R. 308(c)(1)(iii): “A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in paragraph (c)(1)(i) of this section are satisfied.” So, even if the child has not been formally diagnosed with autism – regardless of who should have done the diagnosis – if the child “manifests the characteristics of autism,” the Team could then identify the child as having autism, and treat him or her as such.

I would be very interested to get feedback from readers of this blog regarding your own experiences.  Please take 30 seconds to respond to this poll:

Please visit my web site for more information about the Law Office of James M. Baron: http://www.lawbaron.com.