Legal Briefs from Matt Cohen
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.
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Can a high school require that a student with LD declare the disability on college applications?
Does a high school have a legal right to mandate that a student with a learning disability declare the disability on college applications? Isn't there a law to protect a student's privacy?
Dear Joel,
I do not believe it is legal for a state to require that students disclose that they have a learning disability on applications for college. The only basis for disclosing the disability is when and if the student decides to request accommodations based on the disability.
What can I do if I've been denied SSI benefits for my daughter's physical disability? Should I get her tested for LD?
I have a 4 year old with hydrocephalus and a ventriculoperitoneal shunt. I've been submitting applications for Supplemental Security Income (SSI) but have been denied all three times.
I recently started to notice that my daughter writes words, numbers, and her name backwards. No matter how many times you show her correctly, she keeps doing it backwards. I have called hospitals to see if there are tests for her but all I've been getting is a call back three to six months later. I really need some advice or even a lead on where to go. Thank you.
Dear Aresenia:
You need to consult with a knowledgeable SSI disability appeals lawyer concerning the possibility of filing an appeal of the denial of benefits for your child.
There are several organizations that represent lawyers that handle SSI cases. You can do a Google search or contact the American Bar Association Mental and Physical Disability Law/Bazelon Center Web site for a list of lawyers that do disability cases.
With regard to child having trouble with reversing letters and numbers, this is often reflective of the presence of a learning disability. You may want to consult with a clinical psychologist or neuropsychologist for evaluation of your child's reading and writing to determine if there is a problem with the way her brain processes information.
Many hospitals, especially children's hospitals and hospitals with medical school affiliations, have clinics that conduct psycho-educational evaluations. However, you should be forewarned that many hospital clinics may use medical criteria that are different than the eligibility criteria used by the schools. Therefore, it is important to make sure that the evaluator is familiar with the special education criteria for LD, as well as the clinical criteria.
If you disclose a learning disability on a job application, does the employer have to provide accommodations?
If you put down on a job application that you have a learning disability or ADHD, is the employer supposed to offer help? I always put this on my applications but have never gotten any kind of help at work. What can I do about this?
Dear Wayne:
Employers are not permitted to ask about disabilities on job applications and you are not required to state that you have a disability.
If you meet the bona fide qualifications for the job and are given a preliminary offer, they may ask further questions that are job-related that may relate to a medical condition. More importantly, if you have a documented disability and require accommodations, you may present evidence of your disability to the employer, as well as documentation of the need for reasonable accommodations.
However, this is typically done after you are hired. The employer is not obligated to provide you with an accommodation simply because you identify that you have a disability. Check the Equal Employment Opportunity Commission Web site for information about your rights under the ADA in relation to both the application process and seeking accommodations after you are hired.
The school said it will take 30 weeks to start providing special education services. Should they help pay for tutoring in the interim?
My child has severe dyslexia, as determined by a private evaluator. We are trying to get his school to provide services; however, this could take 30 weeks (losing an entire school year). I have been looking everywhere in my county for tutors, etc. to help him in the interim as long as I can afford it, but am finding nothing. Do you have any recommendations on where to turn? I live in Palm Beach County, Florida.
Dear Michelle,
Although in reality, getting a child determined eligible for special education can sometimes take a long time — even 30 weeks — but by law, this should not occur. You should check your state's special education regulations for the specific timeframes from date of referral to completion of consent to completion of the evaluation.
In any event, if you decide you need to secure tutoring services in the interim, you may consider providing the school with a "unilateral placement" letter, notifying them that you are obtaining the private services due to their failure to provide appropriate (or any) special education services and that you want them to pay for the private services. Giving this letter does not obligate them to pay, but may give you a basis for pursuing reimbursement from them.
As to tutoring services in Florida, I suggest you contact the Learning Disability Assn. of Florida, as well as the federally funded Parent Training Center in your area for ideas for sources of tutoring. You can find the closest parent training center to you at www.taalliance.org.
Can a school change the services agreed upon in the IEP meeting without consulting the parents?
Hi Mr. Cohen,
We have a 9-year-old daughter with many issues — she has ADHD, Tourette's, OCD, a specific learning disability in listening, extreme anxiety, and a new diagnosis of bipolar disorder.
Despite all this, she is extremely bright, and it has taken several years for the public school system to acknowledge her issues. She has an IEP under the categories of other health impairment and specific LD.
Last month school became too stressful for her, and the psychiatrist decided (with us, her parents) to remove her from school and let her have homebound schooling provided by the district. A new IEP meeting was convened, with all present agreeing to provide her with 15 hours per week of homebound services. That amount was ordered by her doctor.
Present at the meeting were the parents, both the special ed and regular ed teachers, and the special ed coordinator, all of whom agreed to the 15 hours. We have this meeting on tape.
This past week, the parent coordinator called to tell us the services would only be provided for three hours. The school did not provide written notice of this, just a phone call. Also, they did not amend the previous IEP with the new placement, even after we requested an updated IEP. We have protested by phone and via email saying that we do not agree with the reduction in hours, and still want the 15 promised.
My question is, can they legally be required to provide 15 hours? How can we get them to honor their commitment made at the IEP meeting? This is not FAPE. Please help us!
Dear Leigh:
States have differing requirements for the minimum level of services required for homebound instruction as a matter of law. You should check your state's special education rules to determine this.
However, if the school wrote an IEP providing for 15 hours a week of service and an administrator changed this after the fact, this is a unilateral change of service without an IEP meeting or your participation. You should immediately consult a knowledgeable special education advocate or attorney and may need to file a due process hearing immediately in order to block the change in service levels.
As you did not receive prior written notice, you may also be able to force a return to the promised levels on the basis of "stay put" placement, even if some time has passed since this unilateral change was implemented. Again, you need legal consultation to follow up on this.
Is an IEP applicable once a student graduates from high school?
My son has Asperger's and learning disabilities. He is 17 years old and will graduate from high school in the Spring of 2010. My son has had an IEP for years. There are numerous accommodations listed on his IEP.
My question is, once he moves on to a two- or four-year college, will his IEP still be of any use to him? Will he get any help?
Dear Mary:
Once a student graduates from high school with a regular education diploma, the IEP is no longer controlling. The IDEA/special education law has no legal force with respect to colleges or universities.
However, these institutions are required to provide reasonable accommodations pursuant to Section 504 and the Americans with Disabilities Act. The IEP will provide useful information to document the need for accommodations, but your son will need to contact the school's disability services office to present documentation of the disability and of the need for accommodations.
Under some circumstances, even if the student has met the technical requirements for graduation, if he or she still has significant unmet needs — such as in the areas of life skills, organizational skills, or social skills — he or she may be eligible for services beyond the twelfth grade year. But this would mean delaying graduation. In some instances, the transition plan could involve participation in community college courses with continuing support from the public school in various ways.
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