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Expert Advice

Legal Briefs from Matt Cohen

December 2014: This Month's Questions
Matt Cohen, Esq.

Each month, special education lawyer Matt Cohen answers selected questions from the LD OnLine community regarding legal issues for people with learning disabilities.

Below are the newest questions answered by Matt Cohen. To view all questions, organized by topic, visit the All Questions section.

Do you have a legal question about learning disabilities? Submit it now!

How can I help my son's teachers to find the best ways to help him learn?

My 14-year-old son has been diagnosed with Asperger's, ADHD, and bipolar disorder. He has math and science teachers that have no special education training. And he struggles in both these classes — the teaching methods do not engage him. This is our second year trying to suggest new methods to the teachers, and they do not seem to be successful. Last year I paid for a tutor and was able to demonstrate to the school that my son could be successful if taught correctly.

Any advice on how to handle this teacher skill barrier with the school? I hate to lose another year of math and science due to inadequate special ed. skills.

The schools are required to use peer-reviewed, scientifically-based educational programs to the extent possible. If the math and science programs your son is being provided do not seem to be working, the first thing to ask the school is whether the program is a research-based, systematic instructional program designed to address his specific disability. If they cannot provide research to support its effectiveness and it doesn't seem to be working, they should be investigating and implementing other programs that are research-based and appropriate. You may benefit from an outside clinical evaluation by a psychologist knowledgeable about research-based math programs in order to learn what methods should be used with your son. For information on peer-reviewed, scientifically-based instructional programs, check the What Works Clearinghouse.

Does a child with vision impairments need to be placed in a special education setting?

I have twin daughters that are in second grade. Both have a vision impairment called nystagmus. Both of my children see 20/40. One of my girls can see just about everything but has a little trouble seeing things written on the board. Because of this they are wanting to put both my children in special ed., and the teacher is harassing me to sign them into the special ed. program. Is there anything that I can do?

There are a wide variety of assistive technology systems and/or accommodations that can help students with vision impairments and may be sufficient to allow your daughters to function well in a regular education classroom. Unless there are important educational reasons for either of them to be in a special education class, difficulty seeing the black board does not seem like a reasonable basis for that recommendation.

You should ask for an assistive technology evaluation to help identify visual aides that could be used in the classroom, along with accommodations, such as having the teacher provide your daughters paper copies of what is being written on the board or other means to allow them to see what is being done.

My child's school counselor recommended medication when we met to discuss LD testing. Is this necessary?

I need to have my son tested for a learning disability; but when I talked with the high school counselor at his school, she mentioned medications that might be used to treat my son. I only wanted him tested and to get more help learning. I don't want to medicate my son. What will happen if I refuse to do this and he does have a learning disability? Is it my choice as a parent? Or do I look stupid for asking for help and this is their answer?

By federal law, school staff are not allowed to recommend or require that parents medicate their children. That decision is reserved for the family in consultation with their physician. If the school staff feels that a child has a condition that might warrant medication, they can suggest that the child be evaluated for the condition; but they may not discuss medication. Equally importantly, schools may not condition eligibility for special education or participation in any special education program on agreement to take medication.

I think my niece might have dyscalculia, but her teacher won't consider additional accommodations. What should we do?

I am convinced that my 20-year-old niece, who has cerebral palsy, also has dyscalculia, a math disability. She is only doing fourth and fifth grade math. Her math teachers have written her off as unteachable. She wants so badly to earn her diploma, but the math teacher says that will never happen because of the math.

The teacher, in my opinion, has absolutely no patience with learning disabled children and no interest in trying anything different. At present, she attends the School for the Blind and Visually Impaired in Indianapolis, Indiana. We are desperate to find her real help, an individual or school that knows how to teach someone with dyscalculia. Can you please guide us in our desperate search before it is too late for yet another learning disabled child?

First, given that you believe that your niece has a neurological math problem that the school is not recognizing, it may make sense to either obtain a private evaluation by someone qualified to assess this issue or to request an independent evaluation at public expense. In any event, since the school is denying the problem, you need to find independent evidence to support your suspicion.

Assuming that testing confirms the previously undiagnosed dyscalculia, the school would potentially both have to make accommodations and potentially provide compensatory educational services to remediate the math problem that they had previously failed to recognize. Some of the University- or Hospital-based diagnostic clinics in your area may be able to help with the diagnostic end. You may also want to contact the Indiana Resource Center for Families with Special Needs, InSource, to get advice on ways to deal with the situation and for resources that can help you to advocate for her.

Can a school deny an IEP because of academic success?

I have a 13-year-old daughter who is in the eighth grade and suffers from the following: OCD, Pervasive Developmental Disorder (autistic spectrum), avoidant and dependent personality, and psychosocial environmental problems. I was notified by the seventh grade counselor last year that they feel that my daughter needed to most likely be put on an IEP or 504 plan. So after getting her re-evaluated with the above disorders, I went to the eighth grade counselor to discuss what the process would be to get something started for her. I tried in elementary school to get some type of plan in place for her, but the school just brushed me and my daughter aside.

The eighth grade counselor keeps stating that my daughter may qualify for 504 but not IEP because her grades are good. But since the counselor is new to the school, she needs to find out from the seventh grade teachers why she was dropped a level in seventh grade (college prep to lower college prep with assistance). She is not a disruptive person in school and keeps to herself and does all her school work at her own pace (not the pace the teachers would like). Her grades are As and Bs, but she suffers severely on time-managed tests such as state tests, etc. I do know that her OCD prohibits her from moving faster. What should I do?

Schools are required to consider but are not obligated to follow the findings and recommendations of outside evaluators, so your private report is helpful but does not automatically entitle your daughter to eligibility. More importantly, the IDEA provides that schools must address all disabilities that impact the child's functioning at school, both academically, developmentally, and functionally.

Even though she is academically successful, that is not a basis by itself for denying eligibility if she has other problems that are impacting her school functioning (and her academics as well). From what you describe, it would appear that her disabilities are impacting her functioning in a variety of ways and may be causing sufficient difficulties for her that she could qualify for an IEP. Even if she didn't qualify for an IEP, there would be an even stronger argument for her eligibility for a 504 plan.

Is a tape recorder an appropriate accommodation for students with dyslexia?

I am the manager of an office of disabilities at a community college. We have previously allowed students with dyslexia to have the placement test read via a tape recorder. This has now been challenged. I believe this is an appropriate accommodation under ADA/504. What are your thoughts?

I believe that if a student has dyslexia and has received test accommodations in the past, it is appropriate for the placement test to provide comparable accommodations.

What documentation is necessary to recieve accomodations for the LSAT?

The school psychologist at my university has recently diagnosed me with ADHD. However, I've already graduated with a bad GPA. My passion is law, and I'm applying to law school after I take the LSAT in October. I looked into getting special treatment for the LSAT because it's super hard for me not to reread every question three or four times. They said that we need a diagnosis from childhood.

I'm bilingual and an immigrant; and as I was growing up, I was the quiet type that would day dream. No one picked up on my ADHD, and I always denied it because I thought I was the same as everyone else. Now I realize that with a little help I could have been a straight A student, and I'm scared it's too late. Is there anything I can do to convince the LSAT administrators to give me some extra time?

Your story is very heartbreaking. You have persevered and struggled to succeed while coping with your disability in silence. The absence of earlier formal diagnosis and accommodation will make it much harder to obtain recognition as a person with a disability and obtain accommodations now.

However, the more that you and your current clinicians can both provide robust evidence of the current accuracy of the diagnosis and impact of the disability and go back through your life history to find evidence of its manifestations while you were growing up, as well as informal strategies or supports that you or others developed to help you to function, the more chance there will be to support your need for accommodations. In particular, you should have your evaluator pay special attention to your testing behavior, to how you function with timed tests, with tests that require quick response time, and in tests that measure attention and processing. It will be an uphill effort but isn't without the possibility of success.

My university will not provide accomodations without a recent IEP, which I do not have. Is there anything I can do?

I am a 34-year-old grad school student. I am learning disabled. The only IEP I could find was from 1990 when I was in seventh grade. The university told me my IEP has to be recent to grant me accommodations. I was in special ed. through high school. I have severe learning disabilities. Is this legal to deny me?

Schools should not require special education eligibility as an absolute prerequisite to present accommodations, though the presence of recent and historical accommodations, whether through an IEP or a 504 plan, is important evidence of the ongoing need for the accommodation. In the absence of actual physical evidence of the IEPs you had at the end of high school, you should try to find other ways to document that you received special education.

If you haven't already, you should certainly contact your high school to see what records they have of your special education status. Even if there is no official record, you should try to locate special education teachers that can provide written documentation of your special education involvement. Letters from your parents and others that will document this would also be helpful in providing supplementary information in place of the official school IEP records. If you had private evaluations along the way, those may also contain references to your special education history, as may notations in your report cards or other progress reports.

Can a school district completely eliminate a service that is used by learning disabled children?

I have been a homebound teacher for a family with severe chemical sensitivity issues for the past fifteen years. We live in Florida in Volusia County. One of the children is a high school student with a diagnosis of autism. The other two children have processing and fine and gross motor problems that have been diagnosed by Easter Seals and testing by the school system. I have been working with them one on one, two times a week for two hours each session. They have always had an IEP and special testing accommodations. This year our school district has decided to use an online program, K12 Inc.

The mother went to an IEP meeting last week and was told that all three children are to use the computer program and no one will be sent to the home to work with them individually. The child with autism was on track to graduate with the extra math help he is receiving. The mother has a sick husband and is trying to support the family by working part-time from home. None of the children will be able to do the computer program without the mother's help. My question is … is this an appropriate education and is there anything the mother can do to get these children some help?

You are to be commended for your concern about the education and welfare of these students and their family. It appears that the school is making major changes to each child's program and may be doing so for financial reasons rather than because of what is appropriate for each child. The parent has the right to request a due process hearing on behalf of each child to challenge the school's decision. If she is successful in the due process proceedings, the school would have to reinstate the prior services. She sounds like she needs a lot of advocacy help. I would suggest that you check the National Disability Rights Network website for the name of the federally funded advocacy organization in your state.

Are colleges required to comply with 504 plans?

My child has ADHD and a formal 504 plan. The plan states that she is allowed extra time on testing and the use of a calculator for math class. The college that she is about to attend has refused to allow a calculator in class and for testing. Is this legal?

Many people assume that if they or their child have been recognized as having a disability and had IEP or Section 504 services in high school that they are automatically entitled to the same services in college. This is not correct. Students in college must 1) inform the college that they have a disability and require reasonable accommodations and 2) provide clinical support for the existence of the disability and the need for accommodations.

That the student was recognized as having a disability and received accommodations in high school is useful documentation for the college to consider but does not require the college to agree. On the other hand, when there are no prior services, it's even harder to obtain accommodations. Colleges may also require that the student provide current clinical testing to show that the disability is still present and evidence of substantial limits to at least one major life activity, related to the activity for which accommodation is sought.

If the student presents all this information and the college refuses, the student has various appeal rights under both the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The student should be able to obtain information about the school's non-discrimination policy in relation to disability from the school's disability services office or from the college handbook. Useful information on the right to college accommodations can also be found from the Association on Higher Education and Disability and the U.S. Department of Education Office for Civil Rights.

I have a learning disability and I am struggling to complete the requirements for my college degree. What are my options?

I need advice in regards to my learning disability. I was diagnosed in 1994 with Written Expression Disorder. I have recently returned to college to pursue my degree in elementary education at Wilmington University in Delaware. I have to take and pass the Praxis I Pre-Professional Skills Test before I can complete my degree.

I have struggled with each of the sections of the test, but I have passed every one except for the writing. I have received additional time because of my learning disability, but I still have not passed the test. I have taken the test nine times so far. What are my rights about being tested on the areas that I have a learning disability in?

You have been incredibly persistent. You need assistance from an attorney knowledgeable about your right to accommodations under the Americans with Disabilities Act. I can't give you legal advice, but would suggest that you check the National Disability Rights Network website for the name of the federally funded advocacy organization in your state. They may either be able to assist you or refer you to a knowledgeable disability rights lawyer in your area.

Can a school refuse an assessment or diagnosis conducted by a licensed medical professional?

How is it legal for a school not to accept any diagnosis or assessment other than their diagnosis? My child was diagnosed by a licensed medical professional, and the school refuses to accept that diagnosis and provide services for my child.

There are several things to be aware of here. First, legally a school district is required to consider outside evaluations but is not obligated to accept the findings and recommendations. However, if they do not accept the findings or recommendations, they must provide you with an explanation for why they disagree and a basis for the disagreement.

Sometimes, schools reject outside testing just because they don't like the results and don't want to be obligated to do the things that are recommended. However, there are situations where private clinicians and school evaluators are using different criteria to analyze the test results. In fact, the standards that private clinicians use for diagnosis are not always identical to the standards that the schools use. Thus, it is possible for the private clinician to be correct in their diagnosis based on their criteria and for the school to be correct based on their criteria.

One circumstance where this is most likely is when the private clinician concludes that the student is performing significantly below their potential but still at an average or above average level. The school might acknowledge the discrepancy but take the position that unless the student is performing at a below average level compared to their peers, they don't qualify. This is a frequent dispute, and there are arguments on both sides.

A second common basis for disagreement is that the school team concludes that the child may have a disability but does not need special education. The need for some form of special education is one of the criteria to be eligible for special education. Schools often take an overly restrictive position as to what is special education or whether the student needs it. By law, special education is specialized instruction, including modifying the content, method, or mode of delivery of instruction, and can include instruction in regular education as well as in a separate classroom. Schools sometimes argue that a student will only qualify if they need special ed. instruction in a special ed. room or from a special ed. teacher.

You should discuss the school's position with your private clinician and see if there are further tests or other data that the clinician can provide. You may also need consultation with a knowledgeable special education advocate or attorney.

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