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Can schools consider academic performance when evaluating a child's special education status?

My 16-year-old daughter has had sensory processing disorder for many years but was recently reevaluated for that and also diagnosed with auditory processing disorders and ADHD. We have had team meetings with her teachers, counselor, and the school psychologist, but the school has denied us either a 504 or an IEP because they believe she is doing too well academically to need them. I know that IDEA requires that students be below grade level to some degree, but I thought that section 504 applied even if a student was succeeding in school. I also thought that impairment in hearing and concentrating (ADHD) counted as disabilities under section 504. Shouldn't she be able to receive accommodations from the school district for her disabilities even if she's doing well academically?

You are partly correct in relation to each point, but also partly wrong in relation to each. See some of my prior answers in other months about the differing eligibility standards for special education and Section 504 plans. Academic problems are not the only basis for eligibility under either law. A student could be doing well academically under either and still be eligible under either, due to problems with social skills, behavior, organizational skills, or other issues. However, both laws require that the problem have a significant impact on the child's functioning. Each also requires that the student needs some form of intervention to address the disability and its impact. The difference is that to be eligible for special ed (an IEP), the student must require some form of special education instruction, whereas to be eligible for a Section 504 plan, a student can be eligible based solely on the need for related services or accommodations.

A special-education teacher made a hurtful comment about my daughter's potential. Could this be considered discrimination?

I have a daughter in 7th grade receiving special education services. She came home today telling me that her teacher told her that she will have to go to a two-year school instead of a four-year college. She was very upset and is now thinking that it must be a horrible thing to be in special ed. I think that this is discrimination on the teacher's part and am wondering what kind of action can be taken against this teacher who is "predetermining" what my daughter will and will not be capable of when it comes to college and her future.

Sadly, adults often say things that are inappropriate or damaging to children, whether related to their disability or otherwise. It was wrong for the teacher to say what was said, but it doesn't really constitute discrimination. The teacher has no power to make that decision nor the ability to competently predict that outcome so far into the future. You are correct that schools can not "predetermine" a child's placement prior to an IEP meeting, but the comment she made, however inappropriate, doesn't represent a decision by the IEP team, nor is it appropriate to "determine" that when the child is only in 7th grade. At most, such issues, which can and should be addressed through the transition planning component of the IEP process, only represent some assessment of possible or likely activities after graduation. They are not final decisions that can not be modified. In fact, such decisions require input from you and the child and should be reviewed and adjusted on an annual basis until the student graduates or ages out of eligibility for services.

I would bring the comment to the attention of appropriate supervisory staff at the school and seek some means to have the staff correct this statement and for your daughter to feel that her options have not been predetermined. If the staff is not willing to do this, you may need to work on this on your own or with the help of some mental health professional knowledgeable about the special education process.

How would changing from an IEP to a 504 plan affect my child?

My son was diagnosed with PDD-NOS (Pervasive Developmental Disorder — Not Otherwise Specified) when he was 5. He is now 8 and has been re-diagnosed with ADHD/ODD (oppositional defiant disorder). The school keeps telling us that his IEP is no longer valid because he does not "need" a specialized program since all of his accommodations can fall under a 504 plan. We've had a bit of a contentious relationship with this school, and things that we have asked for (e.g., an FBA-functional behavioral assessment) have not been done. The school keeps pushing for a 504, but I am worried that going to a 504 will eliminate, or limit, our rights to request special accommodations. I don't know if a 504 plan could be adequately individualized for my son. I'm wondering what my rights are in this situation and wondering what steps I should take to keep my child on their IEP.

First, there are many situations where a student may qualify for either an IEP or a Section 504 plan. The decision as to which should be used should be made on an individualized basis. Further, often, children with PDD-NOS and/or ADHD do need an IEP, even if much of the intervention is based on accommodations. Certainly, children with these diagnoses have skills deficits that need remediation, justifying having goals, objectives and specific strategies or interventions to assist them in developing these skills. While schools may use the IEP format to write a 504 plan, most schools do not do so. Rather, their 504 plans are often focused on accommodations and not on plans for how the child will develop needed skills and how the child's progress will be monitored.

If your child is already on an IEP, the school must convene a meeting to decide to terminate special education eligibility. If you request a due process hearing immediately after this decision, the school must maintain your child's eligibility and previously provided services until the issue is resolved.

Can a school legally change any part of an IEP without parental consent?

We had an IEP for a 6-year-old child who had not yet attended kindergarten. The child was found eligible for special education services, and we held an IEP meeting. During the meeting, it was determined by all professionals on the team that the child should be enrolled in kindergarten with an aid, despite his age. The parents were not given an IEP report but were told to come in to school the next day to enroll the child in kindergarten. Parents were given an IEP the next day, but it did not mention grade placement. Subsequently, the parents were told that the child could not be enrolled in kindergarten because he was 6 years old and had to enroll in first grade, regardless of his "special circumstances".

I'm wondering… is there a way the school can change the determination of the IEP without the parents, without breaking the law? And is there any precedent in past cases of a 6 year old being placed in kindergarten rather than 1st grade?

First, generally, the issue of promotion and grade level placement is not automatically viewed as an IEP issue by most school districts. You should check your state's laws to see if it addresses minimum/maximum ages for participation in kindergarten and enrollment in first grade. Sometimes, this issue is addressed in district policy, rather than state law. If this is the case, the IEP more clearly supercedes any limiting policy. In your situation, the problem is further complicated because the staff apparently supported placement in kindergarten, but the person writing the IEP document didn't write that in it.

Although it is legally permissible to change any IEP outside of the IEP meeting, this can only be done in writing and with mutual consent of the parents and the school staff. However, because the grade level issue was not written into the IEP, the school administration will likely take the position that it is an administrative issue and wasn't even addressed in the IEP. It would be helpful for you if the participating staff is willing to confirm that they agreed that the child should be in kindergarten, but it may be difficult to get that documented in writing. In all likelihood, the parents will need knowledgeable legal help to assess the situation and determine their legal position. In either event, getting documentation of what the team actually agreed to, versus what was written subsequently, would be very important.

Our school district has decided to discontinue services for our 18-year-old daughter. What steps can I take in challenging this decision?

I have an 18-year-old daughter who has been placed by our district in a private school for children with learning disabilities for the last six years. She has complex learning disabilities, emotional disabilities, and other health impairments. She will not be receiving a diploma at the graduation ceremonies, and so we are looking to the district to continue support at a post secondary school. The district feels does not want to do that. However, the rest of the IEP team, including her private counselor and psychiatrist, do not agree.

We have put in a written letter that we do not agree with the district decision. What can I do if the district does not want to pay for a post secondary residential school placement, but the rest of the team feels it is necessary and appropriate?

First, while all participants in the IEP team meetings are theoretically part of the IEP team, the school staff controls the decision of the district. If the parents and their outside consultants disagree, this should be documented. While your letter serves as documentation, in most states it does not have any legal impact in forcing the school to do what you want. However, the parents' recourse is to request a due process hearing to challenge the school's decision. If the post- secondary school is a special education program approved to provide ongoing services to students in need of continuing special education services, there will be a greater chance of getting funding from the school or a hearing officer. If the school is a regular post- secondary school, it is very difficult to get public school funding for such placements.

You should also be aware that if your student accepts the regular education diploma for high school, the school district's responsibilities are terminated in most states. The only ways to maintain school district responsibility under these circumstances, assuming they are not willing to delay graduation, are 1) to request a due process hearing prior to graduation. This generally has the effect of blocking the graduation until the administrative hearing process is concluded; or 2) pursue compensatory services after graduation. However, this will generally require a due process hearing as well. You should seek help from a knowledgeable special education attorney to assess your position.

Our son will be entering a new school system, and we want to make sure he recieves special education services immediately. Is there a way to arrange this before he starts school?

Our son, who is now about 13 years old, is not progressing in school. We think he has a learning disability but have been unable to obtain any educational testing or assessment data from psychologists. We currently live with our son and other children in Pakistan and have found that there is not a system for working with children with LD here. However, our son is a U.S. citizen, so we are planning to have him move back to the states with family.

We are wondering how we get the initial referral to begin the special education process at his new school if he does not yet live in the U.S. Is this possible?

When a child is entering a new school system, the parents or guardian may immediately request an evaluation for special education. However, the public school is not automatically required to conduct an evaluation. The more information that can be provided to the school to support the need for the evaluation, the more likely they are to agree to the evaluation. This is especially important in situations such as yours, as schools are not as likely to conduct an evaluation when there is no prior history of difficulty in an American public school.

One important step to improve the likelihood that the school will agree to an evaluation is to obtain a comprehensive independent evaluation to document your child's problems. The school is required to consider this evaluation but is not required to accept its findings. As a result of the new requirement that schools consider whether inadequate instruction may be the cause of the learning problem, schools are now far more likely to defer evaluation until after the student has received a period of intensive specialized intervention in regular education (Response to Intervention — RTI). This makes it harder to secure immediate evaluation in situations such as yours and makes any evidence of prior problems and unsuccessful efforts to address these problems especially important.

Are there legal resources for individuals with disabilities who run into trouble with the law?

My 18 year old son has recently run into trouble with the law. I am having a hard time getting his attorney to understand that his ADHD and learning disabilities make him vulnerable to "talking without thinking." His issues with concentrating, focusing, and his impulsiveness also make things more difficult. I would like to find someone to work with my son who understands his disability and its impact on the situations he has gotten himself into. Are there legal resources for individuals with disabilities who run into trouble with the law?

Unfortunately, many criminal lawyers are not very familiar with disabilities and their impact on behavior. It would be especially hard to find an attorney with expertise in ADHD and LD. It is also important to know that, while state laws vary, unless a defendant lacks the mental capacity to understand right from wrong or to control their behavior due to insanity or severe cognitive disabilities, disabilities such as ADHD may not be a legal defense for the action but may be relevant as a mitigating factor in determination of the sentence.

To find a knowledgeable criminal lawyer, you may be able to get assistance from the local Bar Association or get referrals from the local public defender's office. If you are already involved with clinicians working with your son that are knowledgeable about ADHD, you might try to arrange for the clinicians to consult with the attorney. The clinicians may also be familiar with attorneys that they have worked with before that are already familiar with ADHD.

My daughter receives accommodations for ADHD, but doesn't have a formal 504 plan. What can I do to make sure she gets this documentation?

My 12-year-old daughter was diagnosed with ADD. She had a 504 last year, and it was the best year she's ever had. When she changed to middle school this year, they pulled her 504, saying that she has only "time management" issues that don't prevent her from achieving good grades. However, she does have misfiled papers everywhere, has forgotten deadlines, and has hours of homework. She has had to quit everything afterschool and has no extracurricular life. She comes home, does homework for 4-5 hours, eats and goes to bed every week night. She is getting depressed and now hates school.

The principal has said that she can just "limit herself" to a half hour per subject and take the grade she gets. I think she needs her 504 back. Is she being unfairly denied it because she can achieve good grades? They are already giving her extra time on projects and tests, overlooking her late assignments, and reminding her repeatedly to stay on task. Shouldn't this be formalized in a 504? Help!

Your question concerns whether your child with ADHD should remain eligible for a Section 504 plan. First, it is inappropriate for a school to use passing grades as the primary or sole measure of whether a student's disability is substantially limiting life functions at school. While learning is the most obvious school related life function, working, thinking, and concentrating are also specifically identified as life functions under the Americans with Disabilities Act and Section 504.

As a result, your child should be assessed based on how her ADHD is impacting her functioning at school in a variety of ways, including but not limited to grades. In addition, it appears that both you and the school are providing her with various formal or informal accommodations. Under recent amendments to the ADA, the institution is not permitted to deny eligibility based on the person's performance if their performance is dependent on the provision or use of mitigating measures, such as some of the accommodations you described. In other words, the decision about whether she has a disability must be based on how she would perform without these measures, rather than with the extra support.

You should also carefully document all the ways that her disability is affecting her, including those you describe in your question, as homework is also a school-related activity. If her difficulty with homework is disrupting her life, that is also a factor in determining whether her disability is substantially limiting major life activities.

My child is not on a diploma track because of his reading delays, but I feel that the school hasn't done their part to help him achieve. What do I do?

I have a 9th grade student with an IEP reading at a 4th grade level. His school in South Carolina has had him on a reading program in which he has not been qualified to move levels at all, but they have advanced him anyway. Now they are saying it is too late for him to go on a diploma track. At this point there is no way for him to graduate with his peers. Their suggestion is to give him a state diploma stating that he has gone through 12 years of school. I have researched the issue, and I have gone several times to the school with evidence on film and documents to prove that the school has not done their part in teaching this child since the 4th and 5th grade. Now he is in 9th grade, but none of the teachers, or the school district, wants to admit that they failed this child.

Some questions I have about this particular case that you might be able to help me with are as follows:

  • Who is the district level IEP caseworker that oversees the progress of students within the district?
  • How is the progress monitored at the district level from one school year to the next?
  • How is a student flagged for deeper review when the district office realizes that the student is not passing all IEP objectives and goals?
  • What happens when a school reports that a student didn't pass their IEP objectives/goals for that year?
  • Why isn't there a representative from the district at ALL IEP meetings?
  • How often is the school required to submit IEP evaluations and progress reports?
  • Is the present education levels recorded in the information that the district receives from the school? Where is this information found? There isn't any notification in the student's file that states the district received any notifications of progress.
  • How can I obtain a copy of all the district's notifications from the school?
  • How often does the district monitor progress? Who evaluates the progress?
  • If there isn't anyone in control or monitoring the progress of IEP students, what's the purpose of the IEP?
  • Why does the district assume the school is doing their job without following up?
  • How is Richland School District going to make sure that my child receives the education that every other student receives? He is currently in the 9th grade only reading at a 4th grade level. He has been in the school district from the beginning of his education, and I am very concerned.

You ask many important questions, but many of them are too specific to be answered in this format. I would strongly recommend that you seek legal advice from a knowledgeable special education attorney. I will try to answer some of your questions in a broader way:

  1. As a general matter, while a school system may have various ways of maintaining student records and often have records for a student located in a number of different places, there is only one official record. It would be a good idea to seek a copy of all your son's records, and I would write a request seeking a copy of the district records, school records, teacher records, related service provider records, etc.
  2. Ultimately, the school district is responsible for ensuring that all students in special education receive a free appropriate education. How they choose to organize their system is up to them, as long as it complies with state requirements. Schools have to submit their special education plan to the state for approval. That plan is a public record, and you should be able to get a copy of it from the school or from the state.
  3. If a student is not making progress, the school should review why the student is not making progress and whether there is a need to change the IEP, including exploring more intensive services, different strategies, different methodologies and even different settings. This should all be done through the IEP process. In addition, if the student is not making expected progress, it may suggest the need for further evaluation to determine why the student is not making the desired progress.
  4. Although the special education law itself does not specifically address this, if you were not informed that the track your son was on and the courses he was being assigned would prevent him from getting a regular education diploma, you may have a basis for complaint: 1) you were deprived of the chance for informed and full participation, and 2) you relied on inaccurate information in going along with the school's plan. This is one of the areas where legal advice would be needed to assess your position.
  5. Although your question indicates that there were no district representatives at your son's IEP meetings, the district can delegate this role to a member of the IEP team. They may not have done that or may have done it and simply failed to explain that to you. However, there is no requirement that a person from "the district" be present. Rather, there must be someone representing the district with the ability to make decisions and commit resources.
  6. Finally, if your son is as far behind as he is and has not received an appropriate education, he may be entitled to compensatory education for the period he has not gotten appropriate services. However, each state has a statute of limitations that defines how far in the past you can complain about. In addition, your son should have a transition plan as part of his IEP that can include additional services geared to prepare your son for life after high school.

Could executive functioning disorder qualify a child for special education services?

Do you have any information on whether or not schools find students eligible for special education services when their primary issue is executive dysfunction? If so, what category are they found eligible under (i.e., learning disability, not otherwise specified, etc.)?

There are 13 categories of disability under the IDEA. Executive functioning (EF) is not listed as one of these categories. Further, EF disorder is an evolving condition that is not yet fully recognized within the medical community. Generally, it is currently seen as a problem related to or under the constellation of symptoms of ADHD. If your child is diagnosed with ADHD, it would typically be considered under the Other Health Impaired category of IDEA. Even if there isn't an ADHD diagnosis, if is the EF disorder is diagnosed by competent mental health professionals, it may fit under the Other Health Impaired category if the clinician can demonstrate how it results in limited ability to attend to educational tasks due to excessive distraction or attention to other things going on. It would be a less obvious fit under the Learning Disability category, unless it can be clinically documented as a processing disorder impacting one of the basic processes of learning, e.g., reading, writing, etc.

Even if the school does not feel your child meets criteria for IDEA eligibility, if you have clinical documentation of the EF disorder and evidence that it substantially impacts one or more life activities at school, your child may be eligible for a Section 504 plan and could get accommodations for the EF disorder under the 504 plan. Much or all of what your child may need could be provided under a 504 plan as well as under an IEP.

How can I successfully advocate for my child during an IEP meeting when the school is not considering my ideas?

Our son has ADHD and other emotional issues. He has a personal paraprofessional with him all day to keep him on task and for his safety issues (i.e., wandering off, no fear). The school sent us a notice of action to take his paraprofessional away. All the reason they gave us was that his teachers and paraprofessionals say that he could succeed in school most of the time. It is a safety issue for us most of all, so we brought letters from doctors, therapists, and social workers to back up our reasoning. Our letters were ignored, and at the IEP meeting our concerns were tossed aside like we didn't have a say. We had an advocate at the meeting who was surprised by their decision; they had a consultant at the meeting who works for a special ed law firm. We were out-gunned and are wondering: how do parents stand a chance against this kind of presence?

Your question addresses the school's decision to remove the 1-1 aide for your son with ADHD. Your question raises a number of important issues.

First, schools are required to consider input from parents and their outside experts or consultants. This does not mean the school is bound to follow their decision but must give it serious consideration and provide reasons for why they are disagreeing or not following the outside advice.

Second, it appears that the school gave you notice of the decision prior to the IEP meeting and did not give serious consideration to your input at the meeting. This may indicate two separate legal problems. One is that schools are not supposed to pre-determine the decisions that are supposed to be discussed at the IEP meeting. If they informed you of the decision prior to the meeting, it would appear that the IEP discussion was a sham. In addition, parents are supposed to be given a "meaningful opportunity" for participation in the IEP process. While you did not provide details, if you can show that the school was unwilling to even seriously discuss your concerns and those of your clinicians, there is an argument that you did not have a meaningful opportunity to participate.

Finally, you have the right to request a due process hearing to challenge the school's decision. Your question didn't say when the meeting took place; and by the time this answer is published, it will surely have been many weeks ago. Under the special education law, if you request a due process hearing within the time specified by state law after the decision to change placement or services (typically 10-14 days), the school is required to keep the program or service in place while the due process dispute is being resolved, including any time the due process decision is being appealed to court (in other words, at least months, and possibly longer). This is called the "stay put placement" rule. It is likely that you are beyond the legal period for filing a hearing in time to automatically trigger the "stay put" rule. However, you still have the right to file a request for hearing and challenge the decision. In addition, there are some circumstances where hearing officers may decide that if the request for hearing is filed before the change is implemented, the "stay put" rule applies, even if the request for a hearing wasn't filed within the initial Notice of Change of Placement period. You should seek consultation from a knowledgeable special education attorney to seek assistance with this issue.

My child has missed a lot of school due to illness. Now her teacher will not let her make up work or attend the Special Olympics. What can I do?

My daughter has a learning disability and mental retardation, and she has been diagnosed with major depression disorder, anxiety, and a panic disorder. She misses a lot of school due to her depression and was hospitalized twice last year for it. Because of her absences, her special education teacher will not let her attend the Special Olympics this year. In addition, her teacher will not let her make up the work she missed, although most were excused absences. What rights do I have in this situation?

Your question presents two distinct problems related to your child's frequent absence from school. In relation to both of them, a starting place would be to make sure that you have medical documentation of the need for her to miss school, whether for physical or emotional reasons or both. You might need a note from both a mental health professional and her primary care physician, but it is important to establish that the absences are bona fide and related to her emotional disorder and/or a physical illness.

Assuming you can document this, her absence should not be a basis for exclusion from the Special Olympics. Unless her conditions pose a health risk to her participation, it is arguably discriminatory to use her absence as a basis for exclusion. You may want to contact the Special Olympics to check their rules for eligibility, as I suspect that the teacher is making her own decision rather than following the organization's policies.

With respect to the equally or more important issue of the refusal to allow her to make up work, this should be addressed in two ways. First, you should ask for a copy of the school's policy on medical absence. If a child, with or without a disability, is absent from school for legitimate medical reasons, most schools permit the students to make up the work. Second, you should seek a specific accommodation in her IEP that provides for a procedure for her to make up the work. If it is in the IEP, the teacher is legally required to follow it.

Finally, if she is absent for prolonged periods of time, most states have a procedure to address prolonged medical absence. With medical certification, if she is absent for the period provided by state law (generally two or three weeks) and there is medical documentation that her absence will extend beyond that period, the child is entitled to some form of home tutoring from the school system at district expense. Typically, this is only for several hours a week but has the advantage that the home tutor must provide your child with the work that the class is doing each week and assist her in keeping up with the work. However, this procedure only applies for extended absence and requires medical documentation. The specifics vary by state, so you should check your state rules.

I think my child still needs the accommodations that an IEP can provide, but his teachers disagree. What should I do?

My son has been diagnosed with a mixed receptive and expressive learning disability. He has been on an IEP since kindergarten and is now in 6th grade. His reevaluation came up, and the testing is showing he is making adequate progress; so they want to take him off his IEP. What rights do I have to keep him on one to maintain his accommodations?

Dear Traci:

First, the fact that your child is making appropriate progress doesn't automatically mean the services are not required, though schools often respond this way. Part of the decision should include consideration of whether the services remain needed in order for your son to make the progress. If the school proposes to discontinue services, you have the right to request a due process hearing, which you should do immediately upon receiving the school's decision to terminate services. If you make a timely request for a due process hearing, the school is supposed to continue services while the dispute is pending. This can give you time to gather information as to why services are needed, potentially get outside evaluations, and potentially consult with or get the assistance of a knowledgeable advocate or attorney. In addition, even if the school decides to remove eligibility for special education through an IEP, your son may still qualify for services and accommodations under Section 504.

My child has difficulty focusing, and administrators at his private school do not want him to return to the program. Is this legal?

My child's private Pre-K Catholic school has told me that he has problems focusing. I have been working with them on this. I consulted my pediatrician, and I have finally gotten our Board of Education to have him evaluated. They first told me of the issue at the end of September, and we have just been able to get the evaluation scheduled for February.

The school has asked me to remove my child from the Pre-K class. Is this legal?

Dear Michelle:

Your question is somewhat confusing. If I understand it correctly, there may be two separate legal issues. First, it appears there was a long delay between when you requested an evaluation from the public school and when they provided it. Generally, public school evaluations should be completed within sixty school days of the date that you signed a formal consent for evaluation.

Unfortunately, with respect to the Catholic school deciding to remove your child, the federal disability laws exempt organizations that are religiously controlled, unless they receive federal financial assistance. You may need to consult a disability lawyer in your area to investigate the situation further. In some states or cities, the local disability rights laws do apply to religious schools, even though they are often not covered by the federal disability laws. However, this varies from place to place.

Are colleges required to provide testing and accommodations for students with learning disabilities?

My daughter, who is now 28 years old, has returned to college. She went to an alternative high school and only took basic math there because she had such difficulties with math. She just took Basic College Algebra and failed it even though she went for tutoring twice a week. I have always thought she (and her father and two brothers) had a math disability.

Should the college have to provide testing and accommodations? They really have not wanted to discuss this with her.

Dear Mary:

Colleges and universities are governed by different rules than students with disabilities in elementary and high school. The law requires that in order for a student to receive accommodations based on their disability, they must provide documentation that establishes that they have the disability and why the accommodation is necessary for them, based on their disability. The college or university then must consider this information if they agree that the documentation establishes the disability and that the accommodations being requested are "reasonable." If they disagree, they must advise your daughter. She then has the right to appeal that decision or file a complaint with the federal government because they are not recognizing her disability or providing her with the needed accommodations.

My daughter's interventions have been altered based on her good grades, but she still needs help. What should I do?

My daughter is in sixth grade, and I have a problem with her school. She was diagnosed with dyslexia back in 2006. She was getting a lot of assistance with her reading last year through Section 504, and she did fairly well. This year the committee decided to remove some of the modifications based solely on her grades.

Last year she would get 1 hour and 15 minutes per day for both her interventions. Now she is getting 30 minutes a day for the Herman Method 4 times a week (if the teacher is not absent), and 45 minutes a week for the Reading 180. On top of that, the interventions that she is getting right now are being done by instructors who are not qualified to be giving them to her. I told them that the reason she had been doing so well last year is because of the assistance that she had been getting — the amount and from qualified teachers. My daughter's grade level of reading right now is third grade three month; they seem to think that is okay even though she's now in the sixth grade. What should I do?

Maria

Dear Maria:

First, the requirement for "highly qualified" teachers does not automatically mean that they must be fully trained in a particular teaching technique. However, these programs generally explain what level of training is needed to do them correctly. In addition, the special education law requires that schools use research-based programs to the extent practicable. Generally, the research based programs are based on carrying them out in a way that is consistent with how they were designed to be carried out (including by teachers with adequate training).

Schools should not change or reduce services without first conducting an evaluation to verify that what they are doing is correct. Evaluations are required before significant changes are made to a Section 504 plan as well. From your description, though, your child may actually be eligible for special education services through an IEP. If your child is reading three years below grade level, the school needs to justify why reducing, rather than increasing services, is appropriate. There would be an argument that they need to be doing more, not less.

I believe that my child's IEP needs to be reevaluated, but his teachers disagree. How do I make sure that his plan remains effective?

My son (13) is on an IEP for Reading/Writing/Math. After many years of fighting with and begging the school to let him off of his IEP for reading and writing so that he could be in the general ed classroom for those two subjects, they agreed to let him go to general ed, for reading and writing. But they will not take reading and writing off his IEP, as they say "he still needs the support."

I don't think he needs the support; he's doing great in the regular general education class for reading and writing. And because they leave him on his IEP for those two subjects, he has to go to the Resource Room for reading and writing during 6th period. This takes away his opportunity to take an elective, like woodshop, which is important for him because it teaches him a trade. He spends his entire 6th period for reading and writing in the resource room doing homework from his other classes while trying to block out the noise from the other kids. He does not spend 6th period in the resource room with a special ed teacher working on his IEP goals.

Also, his language arts and social studies general ed. teacher says she is modifying his curriculum "substantially," which I respectfully completely disagree with. I work with my son every night on homework, and I can see what the other children are doing compared to my son. I think his curriculum is fairly modified. Can you please tell me if I, as his mother, against the school's desire, can take him off of his IEP for reading and writing but leave him on for math? And, if so, does leaving him on for math ensure that he will receive accommodations/modifications in his other general ed classes?

Thank you so much!

Dear Lynn:

First, it is not correct that a student must be in a special education classroom, just because they have an IEP, regardless of the disability or subject. Schools are required to provide services for students with IEPs in the least restrictive environment, to the extent possible. Where supplementary aides or services are needed in order for the student to be successful in regular education, these should be included in the IEP.

If your son needs supports in math but not in reading and writing, you can request an amendment to the IEP to focus on that problem. If you believe your child no longer needs help in reading and writing but the school does, you should consider either requesting a reevaluation to assess this or consider getting an outside evaluation to address this. You should also assemble as much information as you can about how your child is doing in these areas to show that he is capable of doing the work (and is doing regular work) without special education.

What does "failure to educate" mean?

What does "failure to educate" mean? Does a person graduating high school with a 6th grade reading and writing level fall into this? Also, what happens if a school lost a part of your child's records? Can a person still be helped if he is out of school and is now 19?

Thank you.

Dear Louise:

There is no single definition or standard for what "failure to educate" means. In fact, the more technical language would be "failure to provide a free appropriate education." This language has been the source of hundreds of law suits and legal decisions since the special education law was passed in 1975. Although it would seem that a student that graduated from school with 6th grade reading and writing skills did not receive an adequate education, this is not automatically true. Each child is different. Some children's disabilities may be so severe that even with an excellent education, they may never be able to read or write at the sixth grade level.

On the other hand, some children with disabilities may be behind in reading and writing and, with appropriate instruction and remediation, may be able to reach grade level in those subjects. You need to get more information about the nature of your child's disabilities, their cause, the types of programs that should have been provided to address them, and whether they were capable of more progress if they had been provided those programs.

Even if a student has graduated, they may be entitled to seek more services, generally by requesting a due process hearing, if they can prove that the school failed to provide them an appropriate education. However, this is complicated to prove. In addition, federal and state laws provide "statutes of limitations" which require that if you are dissatisfied with something the school did or failed to do, you must request a hearing within a specified period of time. These deadlines vary by state. If a school lost part of your child's records, this is by itself a violation of both the special education law and federal and state records laws. You should consult an attorney knowledgeable about education and special education law for consultation about your rights in relation to these problems.

Is there a legal definition for special education case manager/IEP case manager?

Is there a legal definition for special education case manager/IEP case manager? If so, what is the legal job description/duties?

Dear Linda:

There is no legal definition or even requirement for a case manager in the federal IDEA (special education) law. It may be found in some states' special education laws, but more often it is just an administrative decision by the school system as to how they organize the special education program to ensure that one person is coordinating the services for each child that is eligible for special education. However, the school's policies and job descriptions for case manager, if they use them, are a public record and should be provided to you if you request them in writing.

A doctor believes that my child has a learning disability, but his school will not evaluate his case. What should I do?

My son was classified in pre-k as preschool handicapped. He was declassified in kindergarten, but the school gave him a 504 plan. He gets speech, OT, and PT in school. He is now in first grade. His writing is poor, and it takes him two days to copy two sentences. In September I asked the school to re-evaluate him to see if he now would qualify for an IEP through the child study team.

In January, the case manager called me for a meeting, where I was asked to take my son for a pediatric neuro evaluation. I did this within 2 days of this meeting, by just pure luck of getting him in a cancellation spot. The neurodevelopmental pediatrician evaluated my son, looked at all evaluation summaries from pre-k, and said that the school should now re-evaluate him again because he is positive at this time his scores will qualify him to be classified. He said my son is dysgraphic, and that was all so far. I have not received his report, yet; but he told me before I left to write a letter requesting the child study team to re-evaluate my son.

When I told my son's case worker that I needed to deliver a letter to her and what it was for, she told me this doctor does not know the codes and is wrong. I have a hard time believing this. I feel as though I need to listen to the doctor who evaluated my son over her, and feel I should submit this letter even if it upsets the school. Is this the right thing to do?

Dear Donna:

First, many people do get confused, including doctors, because the clinical criteria for disabilities and the educational criteria for disabilities are often overlapping but not the same. Thus, a clinical diagnosis does not automatically mean that there is sufficient basis for an educational label of disability. However, the doctor's evaluation cannot be ignored by the school. It must be considered, and the school must provide you the reasons that they feel an evaluation is not needed. Further, you have a right to request an evaluation at any time.

The doctor's recommendation provides further support for your request but is not a necessity for making the request. It does give you more support for the request. If the school is not willing to honor your written request, they are supposed to 1) give you a written explanation that they are denying the request, 2) explain the reason they are denying the request, and 3) explain your right to request a hearing to challenge their refusal to conduct the evaluation. If you give them a written request and they do not do this, they are in violation of the law.

Can schools legally keep students with ADHD off of the honor roll because of behavior issues?

My son is in the 7th grade. He has ADHD, and we have an aid with him in his classes. He was an honor student every quarter last year. He is at the same school this year, but now, even though he has the marks for an honor student, they refuse to designate him an honor student because of his behavior. His behaviors include sometimes talking out or talking without raising his hand. We hired a lawyer in elementary school, but we can't afford it now; and I remember the lawyer saying that they can't penalize him because of his behavior. Thank you for your help with this.

Dear Dominick:

If the "honor student" system uses criteria that are not based on behavior, there would be a strong argument that your son's disability-related behavior should not be a basis for denying him the honor. If the honor does have criteria related to behavior, his disability should be taken into account as a factor that is contributing to his inability to meet the behavioral criteria. Though the school may be permitted to consider it to some extent, they should also review whether they have taken appropriate steps to address and provide support for him so that the behavior is not a problem.

What is being done in the legal community to advocate for children with disabilities?

There are law firms who are teaching school districts how to find loopholes in the Americans with Disabilities Act. Parents are having to drain their already depleted bank accounts to defend their children's rights. Tax payers don't want to pay for services for the disabled adults in their community, but they want to discard the rights of children with disabilities to get the tools to become high functioning adults. Seems a bit hypocritical to me. Society wants the word "disability" eradicated from society so they don't have to come to terms with their imperfections. This is far more detrimental to our reaching our full potential than the disability itself. What is being done in the legal community to combat violations?

Dear Christopher:

I agree that there is a huge gap between what the law requires and how it is implemented. Sadly, the burden is primarily placed on the person with a disability or their family to advocate for their rights under both laws. In most cases, the ability to effectively enforce these laws is difficult, even with a knowledgeable attorney. This is even more difficult because there aren't enough attorneys familiar with these laws. Some work for not-for-profit agencies and are often overloaded, and others are in private practice and, as a result, typically have to charge for their services. There is much work still to be done to make the system work they way we want it to. This will require personal, political, and legal advocacy, certainly, but it will ultimately require our society to recognize that we need to change our attitudes about people with disabilities.

There are a number of organizations that work on disability issues on a national level that are trying to address these concerns. These include the Council of Parents, Attorneys and Advocates, the National Disability Rights Network, the Disability Rights Education and Defense Fund, the Bazelon Center of the American Bar Association, and the Public Interest Law Center of Philadelphia.

Are there any laws to regulate the length of an IEP meeting?

I teach special education in Nevada, and today we held an IEP meeting that lasted hours. The meeting lasted long because the parents had concerns because we were changing their son's placement. I wanted to be sure the parents understood, and so I carefully reviewed their questions, etc. I felt they and their child deserved to have as much time as they needed for this important meeting. I was reprimanded by my administration, who said that IEP meetings must be short. What does the law say on this? Shouldn't parents be allowed enough time and opportunity to understand the process and what they are agreeing to?

Dear Carrie:

There is no legal basis to arbitrarily limit the length of time of an IEP meeting. If the time constraints of the school necessitate ending a meeting without enough time being available for the meeting to be properly conducted or for legitimate discussion by staff and/or parents to take place, the meeting should be adjourned but rescheduled at a mutually convenient time and place to allow the IEP team to adequately conduct its work.

The law is clear that parents must be given a "meaningful opportunity" for participation in the IEP process. While this is subjective, it appears that you felt that the parents' questions and concerns were legitimate and justified further discussion. As such, it would seem that more time was needed for them to have a "meaningful opportunity" to have their concerns addressed. As for your effort to achieve this, schools should not punish or reprimand school staff for following IDEA procedures or for attempting to raise appropriate concerns about the process or the needs of the child. In fact, a recent court decision ruled that a teacher was improperly punished for attempting to insure that the rights of the students and parents were being properly protected.

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.

Can my son who attends private school have access to an IEP and LD reading resources at the local public school?

Can my son who attends private school have access to an IEP and LD reading resources at the public school in our district?

Dear Laurie,

Voluntarily enrolled private students have the right to be evaluated by the public school to determine if they have a disability. If so, the school may offer them a "service plan," though the public school has lots of discretion about what services they offer to private school students.

If you wish to have an IEP to be implemented by the public school at the public school on a part time basis, you may request this, but the public school is not obligated to accommodate the scheduling and other issues that may be most workable for your student in relation to their participation at the private school.

Can the school staff hold a pre-IEP meeting without the parents?

Is it appropriate to have a pre-IEP meeting, where teaching staff meet with the special education teacher (no parent involved) to discuss the student's progress with goals and to determine whether the student deserves a diploma?

Dear Ken:

School staff are allowed to meet prior to an IEP meeting and discuss the student's progress, draft proposed goals, and consider options. They are not allowed to predetermine the content, placement, or outcome of the IEP and must have an open and full discussion, including reasonable opportunity for input from you and open consideration of your concerns.

Unfortunately, it is sometimes the case that the pre-meeting does result in a pre-determination in fact, but that is hard to prove. Things to look for include the refusal to give you a chance for input, refusal to consider your input, failure to discuss options other than those previously discussed in private by the team, etc.

Will the public school system pay for my son to attend a military academy?

Dear Mr. Cohen,

My son is 15 years old and in tenth grade. He has been on an IEP for LD/ADHD since first grade. He still has not reached his grade level in reading. He is having problems in math, which was his strong point in elementary and middle school.

All of his state-required test scores are below-level. He's not committed to or focused on his academics. He is always getting into trouble and the school is always calling me with negative reports. He's not on medication; he states it makes him depressed so we discontinued it and the doctor agreed.

My question is, what are my legal rights in terms of putting him into a private school and the state paying for his education? Our property taxes are very high for education here in Georgia. The public school system here is not good, in my opinion, and I feel he is falling between the cracks. It seems they are pushing him along with the No Child Left Behind Act.

I have tried putting him in another high school and was denied the transfer. He is on a block schedule and that is not working out for him. We have IEP meetings and we've set goals and have all these resources and my son is still failing classes.

I feel I have done all I can for him but I will not give up on my son's education. How can I get any financial support for putting my child in a private school, and, if possible, a military academy? Thank you.

Dear Janet;

I think you need good legal help. If you go to the COPAA search engine, you will find there are a number of excellent special education/disability lawyers in Georgia.

Among other things, it sounds like your son's evaluations and program are inadequate. There are circumstances where private school funding may be the responsibility of the public school. However, it is unlikely that a military academy would qualify.

In addition, there are very important rules requiring that you give notice to the public school of your intention to place your child in the private school because the public school is not providing a free appropriate public education and you want the public school to pay for it. This notice should be given to the public school in writing at least 10 business days prior to making the placement.

How can I help my adult daughter get an accommodation or exemption on her math requirements so she can and become a teacher?

My 23-year-old daughter has a well-documented, severe, and longstanding math disability. She has been told that to earn a degree in early childhood special education and to teach with a certificate in New Jersey she must pass two semesters of college-level algebra.

She is in the process of failing remedial algebra again. Can you suggest any agency or way to try to get an accommodation so that she can graduate college, take the Praxis (required exam for teachers), and teach? She has very strong verbal skills and is capable of all of the academic and practical work required for early childhood education.

It has been my experience that even typically developing preschoolers do not have to learn to do quadratic equations. I am not sure why the teacher must demonstrate that competency to teach preschool math. We appreciate any suggestions you can offer. Thank you.

Dear Jane:

I suggest that you contact the state agency responsible for teacher certification. They should have a procedure for granting waivers or accommodations for various requirements for certification. They may feel that these courses are fundamental to the preparation for the job, but as you point out, this seems questionable.

They should also have an appeal procedure to address what to do if they refuse to make an exception. In order to assure that you follow the right procedure, you and your daughter should consult with a knowdledgeable ADA/disability rights lawyer in your area for advice. You may get information on possible lawyers from COPAA, from the American Bar Association's Disability Lawyer Search engine, or by contacting the New Jersey Protection and Advocacy agency to get the New Jersey agency.

You may need expert support to make the point that the math skills being tested are not fundamental to the job for which the license is being sought. You may also be able to identify and propose other ways for satisfying the math requirement.

What recourse do parents have if a school does not conduct a three-year evaluation on time?

What if a school system does not meet the requirements for re-evaluation? I understand that a re-evaluation must be done within three years of the last evaluation. What recourse do we, as parents, have if that deadline is not met?

Dear Elizabeth:

There is no explicit remedy provided in the IDEA for failure to complete a three-year evaluation in a timely way. You have the option of filing an administrative complaint with the state Department of Education or requesting a due process hearing.

You might also request an independent evaluation at public expense on the grounds that the absence of an evaluation was equivalent to an inadequate evaluation. Doing so might well trigger the district to quickly decide to conduct an evaluation after all.

How can I help an employee who exhibits signs of dyslexia but does not have a diagnosis?

One of our employees appears to have dyslexia, which manifests itself in the inability of this employee to correctly alphabetize and therefore file cases where they belong.

She is not approachable about this topic and has not been diagnosed with LD; however, I would like to be able to assist her in filing alphabetically. Any suggestions or tools to achieve this goal would be appreciated.

Dear Diana,

You should consult court administration regarding any formal action in relation to a perceived disability.

However, there are various strategies that could be suggested to assist the employee with the filing, including providing some form of alphabet grid for her to have available as a reference.

There may also be hand-held computer devices that have the capability to help to organize things in alphabetical order. Although it might involve extra work, you could implement a symbol or number system to correspond to the case names to allow for sorting that isn't dependent on spelling.

She may benefit from formal evaluation for a learning disability. If you are her supervisor, you would need to handle this in an appropriate manner, with help from the human resources staff.

What can I do when a teacher implements some IEP accommodations but not others?

My daughter is a senior and she was diagnosed with a learning disability at the end of 2006. Her IEP was written by the school and although most teachers honor it, for some reason we always run into issues with the math teachers. My daughter is really behind in math and reading.

Her IEP says she has extended time for testing but her math teacher will only allow her to finish pages that she has not started. The teacher states that my daughter is not allowed to go back to the other pages. If you have extended time you should be able to utilize the rest of your time taking the test however you like.

It just seems like the teacher is reluctant to honor the IEP. I spoke to the IEP team about the teacher and the response was, "Oh she is an excellent teacher."

This is really difficult for me to understand. It seems as though there is something completely wrong with this picture.

Dear Chalina:

Teachers do not have the option to selectively implement IEP accommodations, whether they are good teachers or not.

As a first step, you might try to add language to the IEP to clarify exactly how the extended time is supposed to work and that it is supposed to be provided in math, as well as other courses. This would eliminate any potential for ambiguity. You may also consider going to administrators in the school or school district to express your concerns, as the IEP team may not be able to address the issue or feel comfortable doing so.

If those steps are unsuccessful, you also have the options of filing a request for mediation or a due process hearing, filing a compliance complaint with the state department of education, or filing a complaint with the Office for Civil Rights.

Can a student who was homeschooled and is now in college get an initial evaluation at the public school district's expense?

As a certified LD teacher, I recognized signs of SLD in our 18-year-old from a young age, but since we were homeschooling the public school would not test her. I just taught her coping strategies and adapted as needed.

She is now in college, has completed 33 college semester hours, and has a 3.5 GPA. However, she is currently taking her first college math course. She got a D on her first test and is certain that it is because she ran out of time. She needs to be able to ascertain she's not reversed any digits and she works more slowly than most people for that reason. The college can't make accommodations without documentation but our insurance doesn't cover that type of testing.

Dear Kathi,

If your daughter was homeschooled, never enrolled in public school and now is in college, neither the public school nor college has a current duty to conduct an evaluation to determine if there is a learning disability. Public schools do have an obligation under Child Find to identify and evaluate children between the ages of three and 21 that are suspected of having disabilities, if they reside in the district and attend public school or attend a non-public or home school within the district, but that obligation generally expires when the student graduates or is no longer eligible for special education.

If your insurance won't provide coverage, your best options would be to try to find a university or public hospital with a diagnostic center that would test for free or at low cost. In addition, the Masons offer LD clinics in various parts of the country that are available at reduced or no cost. You might be able to find a clinic sponsored by them or a similar group that would test without charge.

Can a paraprofessional service IEP minutes?

Who can provide IEP minutes besides the special education teacher in a resource program? Can a teacher's assistant service IEP minutes with direction from the special ed teacher? What is the difference between direct minutes and supplementary minutes?

Thank you!

Dear Lavonne:

As a general matter, the duties of teachers versus paraprofessionals are spelled out in state law. However, under both NCLB and IDEA, instruction must be provided by highly qualified teachers that meet state standards for teachers. Paraprofessionals may assist the teacher and student under the supervision of the teacher, but should not provide ongoing direct instruction themselves, particularly without direct ongoing involvement by the teacher.

If the IEP specifies a certain number of instructional minutes by a teacher, those minutes should be provided by the teacher.

If my son's school did not make adequate yearly progress, do I have a right to send him out of district to a school that will better meet his needs?

Dear Mr. Cohen,

My son's middle school failed adequate yearly progress three years straight. He has an IEP, and a diagnosis of Asperger's.

I have identified a school in a nearby town that specializes in educating children like my son. I have requested placement on the grounds that the school did not meet the NCLB criteria, and that he has not shown progress as he should. However, the school is denying me the ability to send my child out of district, stating NCLB does not apply to IEP/special education, and that I can only send my son to "another school" if and only if there exists another school within our district.

My question: How does NCLB apply to IEP/IDEA and FAPE? If my school did not meet NCLB, do I have a right to send my child out of district to another school that performs better, especially one that specializes in educating children with Asperger's?

Dear Dawn:

Under NCLB, there are circumstances where students at a school that is consistently failing to make adequate yearly progress can request transfer to a school that is meeting state guidelines. However, the transfer to an adequately performing school would be based on the overall school failure and would allow transfer to an adequately performing school. It would not trigger an automatic right to transfer to the school with the program for children with Asperger's.

On the other hand, if your child is not making adequate progress on his IEP on a consistent basis, the school is obligated to provide your child with an appropriate education. If that can't be accomplished at the current school, they are obligated to provide a program that does, whether within the district, or, if not available in the district, potentially in another public or private school outside the district.

The right to placement in a special program under IDEA due to the child's inability to receive an appropriate education is not limited or governed by the transfer provisions of NCLB.

What kind of "safety net" do parents have after their child has been terminated from special education?

I work with kids with special needs in grades K-8. When a child is exited from an IEP, parents often see this as a good thing intellectually, but emotionally they feel frightened.

"Where is my support system going?" they wonder, and, "What will I do now that I have no legal recourse?"

Do you have resources or suggestions for helping the parents transition?

Your question addresses parental concerns about the absence of a safety net when their child's special education eligibility is being terminated because the child has made adequate progress.

First, it is possible for a student that is making good progress and functioning at a level suggesting special education may no longer be needed to have an IEP that gradually reduces the level of service prior to formal termination. This can reduce the risk that the student goes from a needed level of support to no support and suffers regression or other problems as a result.

Another option for students in these situations is for the student to shift from an IEP to a 504 plan as an interim measure. This also allows for some greater degree of protection and/or attention as the student shifts from a higher level of special education service to regular services.

Finally, in many schools, a student should be able to receive a variety of study supports and other accommodations available to regular education students, even in the absence of formal special education eligibility or 504 status. In addition, if the student begins to experience serious problems after eligibility is terminated, the parents can request that the child be reevaluated for renewed special education or Section 504 eligibility.

How can an adult with LD get accommodations on the ACT?

I have a daughter with LD. She is 31 years old and is trying to get an associates degree. What is keeping her back from continuing her education is not being able to pass the ACT reading and writing tests. The tests are given online and do not allow you to go back to correct or complete a page.

Is there a way that she can get the paper form of the test? Or is there a different kind of grading for adults with LD? She has 40 credits, so she is able to pass some of the courses but she is at a standstill now because of this test.

I have tried to get in touch with the National Center for Learning Disabilities here in New York to no avail. I would appreciate any help that you can give me concerning this matter.

Thanking you in advance,

Jennifer

Dear Jennifer:

If a person has a documented disability that requires accommodation in how testing is administered, he/she should request accommodation to the test agency. The individual will be expected to provide clinical documentation of the existence of the disability, the impact of the disability, the need for the accommodation, and the relationship of the disability to the requested accommodation.

Alternative test formats are often used to accommodate people with various types of disabilities. However, the request for accommodation must be reasonable. If the testing is all done online, some investigation would be needed as to how alternative testing could be done under appropriate, controlled conditions that would still accommodate her needs.

Further, there would need to be clinical documentation of why the particular accommodation in relation to the test format was necessary as a result of her disability.

Are summer school teachers required to follow a student's IEP?

My daughter has a learning disability in math. She has an IEP that addresses this. She failed math this last school year so she went to summer school and I was told she was failing math there. I mentioned to the teacher that she has an IEP and was told that they did not have to address the IEP during the summer because they have a skeleton crew and don't have adequate staff. Can you please let me know if this is legal? They have failed her in school because they would not provide her help.

Dear Stephanie:

First, if a child is not making adequate progress and loses progress during breaks, he/she is entitled to receive extended school year services over the summer to address the disability. These services should be spelled out in the IEP and should be sufficient to allow the child to make progress.

Even if your daughter was in regular math class, if she has an IEP due to her math disability, it would be likely that she would be entitled to accommodations and other assistance to help her with the math in the regular summer school program.

Further, given that she has an IEP, you should question the adequacy of her math instruction during the regular school year, as the IEP should be designed so that she will make progress. If she is failing, that is an IEP issue, and the IEP team should determine why she is failing and what is needed in order to allow her to make adequate progress.

The school district wants me to use a curriculum that has not been effective for my students with special needs. What can I do?

I have been teaching for 39 years. I am currently teaching special education in South Carolina (it's my third year in the district).

For the past two years I have been teaching in a self-contained cross-categorical classroom (Tier III). I have used my background experience, knowledge, and personal funding to implement programming that has had very compelling test results.

I have not been using the programs required by the district that have already failed the students. This has resulted in a power struggle with district office and this school year I will be required to teach the district required programs. I have made every effort to work with district office and building administration to prevent certain failure for my students. As the district can require me to teach what they may, I want to know what data or avenue would best support myself and parents to provide the programming that will best meet the needs of the students.

How should this best be addressed with the least impact on the students? Would you please be specific to NCLB and IDEA? Thank you.

Richard

Dear Richard:

Your question addresses how to address the school administration's requirement that you teach students with disabilities using a curriculum or methodologies that have not been effective for them.

Under both No Child Left Behind, which applies to all students, and the IDEA, which applies specifically to students in special education, the schools are required to provide peer-reviewed, scientifically-validated instructional programs to the extent practicable. Equally important, under the IDEA, schools are required to provide specialized instruction, including adapting as necessary, the method, content, and mode of delivery of instruction to assure that the student's program is reasonably calculated to provide the student with a free appropriate education.

Assuming you have data on the ineffectiveness of the school's program (and the effectiveness of your methods), you could potentially file a complaint with the Office for Civil Rights for a violation of Section 504 (which also requires the provision of FAPE), you could file a complaint with the state education agency, or you could share information with the parents of your students to inform them about this information and their right to request a special education due process hearing.

You may also conceivably have a right to a grievance through your collective bargaining agreement, but that would depend on the language of the agreement. However, you may wish to get legal counsel before taking any steps that would lead to a dispute with the school administration.

Should accommodations and modifications that affect grading be documented on report cards?

How should a school be documenting accommodations or modifications that affect a student's grades? Should they be noted on report cards/permanent records?

Dear Debbie:

When a school is providing accommodations or modifications that affect a student's grades, these accommodations should be noted in the student's IEP or Section 504 plan. As a general matter, however, school are not supposed to share information on a transcript or a diploma that has the effect of disclosing that the student has a disability or flagging him/her as a special education student, unless the educational program has been modified to such an extent that the student is not receiving a regular diploma.

What rights does a teacher with a disability have?

I am a teacher with ADHD. What, if any, rights do I have? Where should I look for information on handling this successfully in the workplace? There are modifications for students but as far as I know nothing for teachers.

Dear Clara:

You are seeking information on your right to accommodations as a teacher with ADHD. Assuming you work for a public school, your rights are determined by the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, state disability laws, and your union contract.

As a general matter, people with ADHD that are otherwise qualified for their job are entitled to receive reasonable accommodations in employment when needed to address the impact of their ADHD on their ability to successfully perform their work. The Equal Employment Opportunity Commission has regulations and explanatory material on the rights of people with disabilities in relation to employment.

How long does a school have to respond to a parental request for testing?

Under the new IDEA laws, how long does a school system have to respond and/or test a child if a parent requests testing? Is the school required to test?

—Cindy

Dear Cindy:

The time period within which a school must respond to a parental request for testing is determined by state law. Schools are not obligated to test a child just because a parent requests testing. However, whenever a parent submits a request for testing, the school district is obligated to inform the parent of whether the school will do the testing or is refusing to do the testing. If the school is agreeing to the testing, it must explain to the parents what testing is proposed and obtain the parents' written informed consent to the testing.

If the school refuses to do the testing, it must inform the parents of the decision to refuse to test, the reason for the refusal, and that the parents have the right to request a due process hearing to challenge the refusal to test. The IDEA requires that schools complete the evaluation within 60 days of receiving parental consent for evaluation, unless state law specifies some other time frame. You should check your state's special education law for the timeline for testing from the date of consent and whether the state law provides a deadline for responding to the parents' request for testing.

What can we put in the 504 Plan to make sure that my son is not punished for symptoms of his ADHD?

I am hoping that other parents also have this question. I am a Reading Specialist and I thought that I covered the bases with my son's 504 Plan, but I was wrong. He was forced to write his name repetitively on several occasions for forgetting to put his name his paper — that was until the teacher realized it wasn't working. Then she just made him miss part of his recess.

It was the end of the year and my hands were tied because it wasn't in his 504 that he couldn't be punished for this. I do not want him punished for anything relating to symptoms of his ADHD. How can I word this in his 504 to prevent this in the coming years?

I never thought a teacher would punish any child this way. I taught for 14 years and never felt it was appropriate for any child just by the very nature of punishment and reward. I can't help other children, but I can certainly make sure this doesn't happen to mine again.

—Andrea

Dear Andrea:

As a general matter, students should not be punished for academic problems due to their disability. However, your son’s Section 504 Plan, or those of other students, need to be specific and detailed in describing the student’s disability and the ways the disability impacts their academic and non-academic performance.

This sort of repetitive writing task is a throwback to educational practice decades ago, regardless of disability law. However, if the student is forgetting to do something necessary to complete an assignment, that should be identified as a problem area and should be addressed in the 504 Plan.

Under the IDEA, and implicitly under Section 504, schools should address both academic non-compliance and behavioral non-compliance through the use of positive behavioral interventions and supports as much as possible. For example, your son may need instruction on how to develop a routine for checking to make sure the assignment is complete, including having his name. An incentive structure might be helpful to motivate him to pay attention to this task.

It may also be appropriate for the plan to include that the teacher will monitor the assignments to verify that they are complete, rather than punishing the student. If there are actions being taken by the school that the parent disagrees with, these should be raised with the school. While the school may not agree, it is often helpful to include in the 504 plan both what the school will do proactively and those actions or interventions that the school should not do, such as excluding the child from recess.

Notably, the IDEA and Section 504 both provide protection not only in relation to academic activities, but non-academic and extracurricular activities as well. There may be an argument that the failure to appropriately accommodate the possible problem with work completion was also resulting in unfair exclusion from recess or other non-academic activities.

Is a student at a private, religious university protected against discrimination under the Americans With Disabilities Act?

An issue recently came up with a patient of mine whom I have been treating for ADHD since he was 9 years old. He is now 21 and transferred last year from a local community college where he was a straight-A student and had an accommodation plan to a private, Lutheran university. The patient is in a church music director program.

One faculty person at this private university started raising concerns midway through this past year about my patient's behavior during unstructured class time. The faculty member spoke with a counselor at the university to discuss this patient's goofy behavior.

Subsequent to this program, my patient went on a school-related trip with the teacher and she documented my patient's behavior every step of the trip so she could bring her complaints to the administration upon their return. All of the behaviors revolved around silly, "immature" behavior and never involved anything that was dangerous or illegal.

I have talked to my patient about his longstanding pharmacotherapy but he doesn't like how he feels on the medication when he's not tasked with studying. He also has a seizure disorder, so medicating him is tricky. The teacher has taken her concerns to the department and has suggested that my patient isn't fit for the director of church music program.

I know that this situation is likely different than it would be in a public university because of the separation of church and state. Does my patient have any legal recourse?

Dear Dr.:

As a rule, religiously controlled organizations are not subject to the protections of the Americans with Disabilities Act. If the school receives grants or direct financial support from the federal government, it may be covered under the non-discrimination provisions of Section 504 of the Rehabilitation Act of 1973.

Complaints against colleges and universities for disability discrimination can be made to the U.S. Department of Education, Office for Civil Rights, which investigates claims of disability discrimination and could determine if the school is covered by Section 504. If not, there may not be a clear basis in federal law to take action.

However, some state, regional, or local human rights laws or regulations cover religiously controlled institutions even if they are not governed by federal disability laws. The student may want to seek legal consultation from a knowledgeable disability law attorney in your area.

How can I get the school district to put my son in a more appropriate out-of-district placement?

My 9-year-old son has autism and is in an out-of-district placement. We live in a bad district for students with autism, so I fight to keep him out-of-district.

He's now the highest-functioning student in his class. My district keeps ignoring my request to have his paperwork sent to a school that is teaching more appropriate reading and math.

There was very little improvement from when he was reevaluated last October — almost no gain. How can I make them send his paperwork to other schools that may be willing to accept him? I don't want to wait until next October for reevaluation, but want him possibly setup for a new school if they have availability in September.

—Audra

Dear Audra:

The primary legal issue in any dispute over the adequacy of a special education placement, whether in the school district, in an adjacent public school district, or in a public school funded placement in a private special education school, is whether the placement is providing the student with a free appropriate public education (FAPE).

You have raised a variety of concerns indicating that your child is not receiving an appropriate education and that there is an appropriate education available in other schools. The school district is obligated to show that the program offered provides FAPE, including that the program is based on scientific peer-reviewed research to the extent practicable.

Unfortunately, because the legal standard for FAPE requires that the program be reasonably calculated to allow the student to make meaningful progress, but not the most progress, schools can often argue that they are providing FAPE, even if the program is much less effective than other options.

At the outset, you may want to ask the school for information that supports that the program they are providing is a research-based program. Beyond that, you may need to gather information that documents that your child is making little or no progress, particularly in comparison to what he may be able to accomplish, taking into account his disability.

It may also be helpful to obtain outside clinical evaluations of your student, particularly psycho-educational evaluations, to determine if your child is making appropriate progress and to evaluate whether the school's program is adequate to address your child’s needs.

As part of this evaluation, it would be important for the clinician to review school testing, IEPs, and progress reports and, if possible, to actually observe the student in the class.

My son's IEP states he will not take math, science, or social studies. Is this permissible by law?

My son is 9 years old and is in special education. His IEP states that he will not take math, science, or social studies. I would like to know if this is the process for all children who have difficulty learning to read.

The special ed teacher told me that her students never learn to read over a fourth grade level. I asked if he was mentally retarded and if that is why he won't have a successful school education. They told me it is possible. But at home we find that he has the ability to learn and remember things as long as we explain it to him.

His problem is reading and most of the schoolwork requires that he read but he cannot retain what he reads. If he doesn't have MR then why would they keep him from "fun" subjects like science and math? Those are things he likes. In the regular classroom they say he requires too much teacher time because they have to explain things and read him directions.

I am so confused and even if he is never a good reader there are many other ways to teach.

—Lorraine

Dear Lorraine:

First, if you have questions or disagreements with the school about your child's disability label, level of functioning, or capability of learning, or the reasons that he may not be making appropriate progress, you may want to consider either requesting a reevaluation from the school district or seeking a private psycho-educational evaluation.

I am also concerned about any statement by a teacher that his/her students "never learn to read over a fourth grade level." Even children with severe disabilities are sometimes capable of learning beyond expectations.

If a student is not severely cognitively impaired, such statements or limitations are especially inappropriate and often establish self-fulfilling prophecies. Each student's educational program should be individualized based on his/her needs and capabilities. A one-size-fits-all rule is not consistent with the requirements of IDEA or Section 504.

In addition, students should not be excluded from academic subjects by rule or practice. This also must be individualized. In fact, students should be mainstreamed to the maximum extent appropriate, including the provision of supplemental aides and supports to the extent necessary to allow the child to be successful.

Unfortunately, in this difficult economic period, budget concerns are becoming a bigger factor in many schools' decisions about placement and services. Despite this, the IDEA still requires individualized programming in the least restrictive environment appropriate to the student, including use of supplementary help to facilitate participation in regular education.

Is a parent entitled to a written transcript of an IEP meeting that was recorded?

Are there any court decisions out there on the issue of whether a parent has the right to a "written transcript" of a recorded IEP meeting? Or is it left up to each party to transcribe a recording? How can a parent get a transcript instead of just an audio copy?

Dear Julia:

As a general matter, you have a right to a copy of whatever means of record keeping was used at the IEP meeting. Your right to the tape is because it is a part of your child's school record, not because there is a special rule entitling you to a written transcript of the recording of the meeting.

However, you should consult your state's special education and privacy/taping laws and regulations to see if there are any state-specific rules in this regard.

I've been denied accommodations for the LSAT. What can I do?

Hi, I recently took the LSAT and they wouldn't give me accommodations. I have been diagnosed with a learning disability since I was in third grade. They told me that I needed more up-to-date testing. I have talked to about 10 psychologists and they all have told me that it is very hard to get accommodations for the LSAT. I just think this is terrible.

Because I read a lot slower than others I only got to about half of the questions. Yet I answered most of the questions I did get to correctly. I am someone who needs extra time to read and process information.

It looks like I will not be able to go to law school because the people at the LSAT will not help me out. I was wondering what you think I should do.

Dear John:

Although many test agencies are being more demanding in relation to documentation, they are allowed to ask for current clinical information in many circumstances, even when there is a long history of disability and accommodation. On the other hand, with current clinical evaluation and the history of problems and accommodations, there should be a basis for arguing for accommodations.

My experience is that many of the test agencies deny many initial requests for evaluation but do agree to some or all of the accommodations if the applicant appeals and provides additional supporting data documenting the existence, severity, and impact of the disability and the need for the specific accommodation.

In addition, because of recent amendments to the Americans with Disabilities Act, the definition of disability has been broadened and will likely make it easier for students with LD, ADHD, and other neurologically-based disabilities to obtain accommodations on these sorts of tests.

Can a school deny a student assistive technology because he/she is not failing?

My 11-year-old son is diagnosed with ADHD and anxiety disorder. I am finally getting the opportunity for a Section 504 plan so that he can have some accommodations for completing tests, assignments, and homework.

My son's particular problem is in reading. It normally takes him one hour to read 10 pages of a fifth grade level book. His performance on the Maryland State Assessment (MSA) lead to him getting a 504. His teacher observed how slow he was reading and he did not finish the test.

I have downloaded Kurzweil 3000 and scanned in his books. (In case you are unfamiliar with Kurzweil 3000 it is a scan and read program that tracks each sentence in a higlighted color and each word in another as it reads.) The students are required to read five grade level books per quarter and he has not been able to reach this goal. However, he was able to achieve this goal easily this quarter due to the Kurzweil 3000. He reads 20 pages in 15 minutes.

The school is saying that provision of that software is not needed unless you cannot read at all. My contention is that my son should be provided whatever it takes to allow him to perform the same work in the same amount of time that is expected of his peers.

I do not want him having less homework and extended assignment/test time. That sets up a bad precedent for my child, expecting less of himself and expecting more from the system. It would be best if he could work independently just like his peers.

What is your legal opinion on this?

Dear Pam:

Children are entitled to be evaluated for the use of assistive technology, such as the Kurzweil scan/read program, if it is suspected that they may benefit from the technology. If it is determined that the assistive technology is needed for them to benefit from their education, it should be provided as part of the IEP.

The need for assistive technology should be based on the needs of the individual student and certainly should not be based on a rule that the student must be failing. In fact, the 2006 IDEA regulations explicitly stated that the fact that the student is getting passing grades or progressing year to year does not, by itself, mean that the student is receiving a free appropriate education. In other words, total failure is not a permissible prerequisite for receiving particular special education or related services.

My son has been struggling for three years and was held back but does not qualify for services. How can I fight this?

My son's school has seen him struggling all year long. He failed the Florida state standardized exam. As a result, he is now attending summer school. The school decided to evaluate him at the very end of the year, so there's nothing that can be done.

Further, I was advised by the school psychologist this week that although my son exhibits ADHD and a learning disability, he scored below average on some tests and a little above average on others, giving the sense that he's average. Therefore, no help will be provided by the school system next year.

Is there anything I can do to fight this? My son has struggled with school since kindergarten and is now in 3rd grade. He repeated first and may have to repeat third. Thank you.

Dear Maria:

Under the IDEA, school districts are responsible for "Child Find," which means that they must timely identify all children suspected of having disabilities that reside in their school district, determine if evaluation is needed, conduct needed evaluations with parental consent, and, if the child is determined eligible, assure that the child has an IEP within 30 days after the eligibility decision.

If your child was having problems for a prolonged period of time, it may be that the school violated the Child Find requirements by failing to evaluate your child in a timely way. In addition, it appears that the school may be using overly restrictive standards for assessing whether your child has a disability and/or whether the disability impacted his educational functioning (including non-academic performance).

The schools should not rely on any single test instrument in making its decision and must consider the child's functional performance, as well as the child's academic and test performance.

Is a child due compensatory services if his general education teacher was given his 504 plan late in the school year?

A general educator was given a 504 plan for a student three days before the end of the school year, which stated that the student is allowed extra time on assignments. Are 504 plans retroactive? Does the teacher need to go back to give the student extra time on past assignments?

Dear Kathleen:

Neither Section 504 plans nor IEPs are automatically retroactive. The 504 or IEP team can build in procedures that allow for some degree of retroactive activity to address a child's needs. However, if the school should have identified the child as being eligible for an IEP or Section 504 plan earlier, and failed to do so to the detriment of the child's performance or progress, the parents may argue that the child is entitled to some form of compensatory services to make up for the lost time.

How can I address systemic problems within a school's special education program?

Dear Matt,

My son started ninth grade this past year and had an IEP for his writing disability. Before school started, I introduced myself and my son to the teachers and explained his disability, IEP, and how to contact me. Within one week, he began to fall behind and his resource teacher emailed the teachers to be sure they knew he was twice exceptional.

By late November, after many e-mails and phone calls, he was making D's and F's and was very upset. We found that his IEP was not the one that we discussed in the spring of 8th grade, and they weren't giving him any accommodations from the incorrect IEP either.

I had him transferred to another school at which he has thrived and made B's. I have asked that they change his grades from the first semester to reflect only his tests since that shows his knowledge of the subjects without penalizing him since he had no accommodations. They are probably going to change the grades, but nothing has changed in the process and other kids are still going to be affected. How can I pursue this to push them to correct the system for these other kids? Should I file a lawsuit or write a "letter to the editor"?

Thanks,

Gina

Dear Gina:

Your question asks what can be done to address systematic problems within a school or school system, even if your own child's problems have been resolved.

First, if a child is denied a free appropriate public education in a way that significantly interfered with his ability to benefit from the education or make appropriate progress, the student may be entitled to receive compensatory educational services to make up for the services that were inadequate or not provided. However, compensatory services generally only can be obtained through mediation or through a due process hearing. Although this remedy is difficult to obtain, it may cause schools to review their procedures in order to avoid similar problems in the future.

Beyond this individual remedy, there are a number of other procedures available to address systemic problems. First, each state education agency must have a complaint procedure that parents may use to address procedural violations or systemic problems within a school or district. If parents file an administrative complaint using this procedure, the state is required to investigate and make a determination as to whether the school is complying with IDEA requirements.

A second option is to file a complaint for violations of Section 504 of the Rehabilitation Act of 1973. These complaints are filed with the US Department of Education's Office for Civil Rights. The complaint procedure can be found at the OCR website.

If there is a violation involving discrimination based on disability, complaints can also be brought to the U.S. Department of Justice, which is responsible for investigating and taking action in relation to violations of the Americans with Disabilities Act.

Additional options may be available if your state, county, or municipality has a human rights act or ordinance. You may also bring grievances to the local school board, either simply as a citizen or parent of a child in the district, or using the District's ADA, 504, or general complaint procedures.

At times, meaningful change may only occur if parents organize and use the political process to raise the community's awareness about the problems with special education within the system or by bringing pressure on the administration or school board.

Can a school ask parents for a "co-pay" to help cover services listed on the IEP?

My wife and I have a son who is 6 years old and has autism. The IEP team met and decided he needed a one-to-one school aide for next school year and this has been placed in the accommodations/modifications section of his draft IEP. Subsequent to the IEP meeting, the school system has told us that the aide is for behavioral needs, which is covered under the Comprehensive Services Act, and therefore we must pay a "co-pay" for this aide's services.

We have refused to pay a co-pay for this aid saying that the aid is identified on the IEP and the local school system is responsible for providing our son with a free and appropriate public education. Does the local school system have any authority to require us to pay for an aid that is for use in the school only and identified in the IEP?

Thanks,

James

Dear James:

Your school district is apparently insisting that you utilize some form of public or private health benefits to subsidize the cost of a one-to-one aide, referenced in your son's IEP.

Schools may ask the parents if they are willing to utilize third party coverage to pay for covered therapies or other related services. However, under no circumstances can schools require parents to use third party coverage if there is any out-of-pocket expense to the family, including deductibles, co-pays, exhaustion of lifetime maximums, or triggering any exclusion or pre-existing condition problems.

Under the IDEA, the child is entitled to a free appropriate public education. This means that the education, including any services listed as needed in the IEP, must be provided at no cost to the family.

Can a school have teachers complete ADHD screening forms without parental consent?

Can a school have teachers complete ADHD screening forms when a parent has not requested this? These forms were mailed to me by our area education agency and we had no prior notice that this would be happening.

I know that my daughter does not have ADHD. I do believe she has a learning disability and we are in the process of getting that diagnosed privately outside of the school. Can I have these removed from her file?

A school should not conduct an individualized evaluation of a child for purposes of diagnosing or identifying a disability without the written informed consent of the parent.

ADHD rating scales are assessment tools used for the purpose of determining whether a child has ADHD. As such, they suggest the school is conducting an evaluation of that student, which must be done with the consent of the parent. Schools are allowed to conduct school-wide evaluations of all students without consent, but are not supposed to conduct individual evaluations to assess disability without first informing the parents of the desire to evaluate, obtaining the parents' input about whether an evaluation should be done and the components of such an evaluation, and obtaining their written consent for the evaluation.

If an evaluation was done without consent, or if a student's file has any records that the parents object to, there are procedures under the federal Family Educational Rights and Privacy Act (FERPA) and most states' school records laws, for reviewing and objecting to specific records or information in the file. If the school does not agree to the parents' request, there is a procedure for requesting an administrative hearing to challenge the presence of the objectionable records.

Can a school district forbid parents from meeting with teachers to discuss an upcoming IEP meeting?

What would be the best response to a school district saying that a parent should not be meeting with teachers to discuss (among other issues) accommodations for an upcoming IEP meeting? What should you do if the case manager has canceled your meetings with teachers before an IEP meeting? Is there a good way to change case managers in this instance?

Dear Jan:

There are no federal rules (and generally no state-specific rules) governing or limiting the circumstances under which parents and teachers can discuss issues concerning a student. As a general matter, parents and teachers are and should be free to talk about any issue at any time if they mutually wish to participate in the conversation.

If either party does not want to participate in the conversation, that is their option, unless the conversation is part of the standard procedure for teacher/parent communication. For example, a teacher must participate in conversations with parents at parent/teacher conferences, if the school uses this procedure for sharing information at specific times during the year. A teacher may also choose to call or receive calls from parents to discuss any issue on an ad hoc basis.

In addition, under some circumstances, the IEP or Section 504 plan may specify that the staff generally or a particular staff person will share information with the parents under specified circumstances, such as a weekly call about homework completion, a plan to call whenever there is a behavioral incident, a monthly team meeting, or the like.

However, schools may adopt policies which set forth how or under what circumstances communication should take place, which may limit the timing or frequency of communications (unless otherwise specified in the IEP or 504 plan). That said, whatever policies the school chooses to adopt must be shared with all parents and implemented in a consistent and non-discriminatory or punitive way.

In other words, it is inappropriate for an individual staff member to unilaterally make a decision that parents' access to teachers should be limited or restricted, whether in anticipation of an upcoming IEP meeting or otherwise. As a practical matter, such communication should be encouraged, rather than discouraged, and can help to facilitate more efficient and productive IEP meetings.

Can a student opt out of an accommodation that is listed on the IEP?

What does the phrase "mandated accommodations" mean for a child with an IEP? Does it mean that when the child is offered the accommodation(s) that he or she must use them all of the time? For class work? For school testing? For state testing?

Is there a law that states that the child is required to take the accommodation? Three of my seven students have declined using them except for during the state testing. They are being told that they must use them all of the time. Of course the probability exists that it may be to their benefit; however, in specific situations children have opted out and done well.

Is it their right to be able to choose or must they be coerced/forced to comply? Several other teachers and I would be most grateful for your advice on this matter.

Dear Pam:

Your question addresses the meaning of the phrase "mandated accommodations." I am not sure of the specific circumstances in which the phrase is being used, but as a general matter, accommodations are mandated if they are listed in the child's IEP. They may be listed as applicable under all circumstances or the IEP may describe them as applying under some circumstances, but not others.

Generally, though, if there is a need for an accommodation, it should be provided consistently in the various settings where it would be relevant to the child's ability to function in relation to the specific task.

In addition, there are various ways that accommodations are sometimes qualified, through language such as "as needed," "at teacher discretion," "at student request," or the like. If the parents and team feel that the child needs the accommodation, it should be written in declarative language. If the accommodation is only needed from time to time, some language should be included to describe the circumstances and to ensure that it will be used when needed.

If a child opts out of using an accommodation, it may be because they don't need it (as evidenced by their succeeding without it). However, many kids may opt out of an accommodation because they are embarrassed, don't want to be viewed by their peers as different, or may have unrealistic awareness of the importance of the accommodation.

Under these circumstances, and depending on the child's age and level of understanding, this is an issue to be addressed in relation to their self-awareness and self-advocacy. Whether the accommodation should be "required" in the face of the student's objection would need to be determined based on the situation.

Can I get my son's IEP removed at any time?

Hi Matt,

My child is 7 years old and the school wants him to get in the IEP program. I wanted to know if it will be confidential. Who will know? How will it affect his future? And can I get the IEP removed at anytime? Please let me know....

Thank you, Susan

Dear Susan:

A student's school records, including their special education status, are protected from unauthorized disclosure without parental consent under several federal laws and most state laws. In the real world, these legal protections are not always completely effective, even where the school is trying to maintain confidentiality, as errors are made in record-keeping or disclosure of records that result in unauthorized disclosures.

Further, in some situations, it is operationally impossible to totally protect confidentiality. For example, if the student is participating in a special education program or receiving services from special education staff, other people (adults and students) may figure it out simply from observation.

With respect to your question of whether you may remove your child from special education at any time, the law recently changed in this regard. Prior to 2008, a parent could not remove a child from special education back into regular education without the school's agreement or an order from a hearing officer. However, in 2008, the U.S. Department of Education amended the federal special education regulations to provide that parents now have an absolute right to withdraw their child from special education at any time.

That said, if the parents make this choice, the school district is no longer obligated to provide the child special ed services and cannot later be held legally responsible by the parents for the school's failure to provide an appropriate special education program.

Can a student with a 504 plan be penalized for not passing state standardized tests?

Hello,

I am wondering if you could address the issue of the state standardized tests (PSSAs in my state of PA) being used as a requirement for graduation and how this applies to children with a 504 plan. Currently, my 13-year-old son, who has cerebral palsy, has a 504 plan in place. He does not have an IEP because the district evaluated him twice and did not find identifiable learning disabilities. However, we know he is VERY behind in math, and that written expression is very difficult for him.

He consistently tests at the Basic level on the PSSAs and will be placed in different classes starting next year because the district did not meet Adequate Yearly Progress. The classes are called "standards" classes and are specifically for students who test below proficient, like my son. Also, in order to address the AYP failure of the district, passing (scoring proficient) on the PSSA tests will now be a condition of graduation. This type of plan was struck down in Alaska in 2004.

I am also concerned that putting him in these special standards classes is a violation of what his 504 protection affords him, specifically this — children with disabilities must be educated with their nondisabled peers "to the maximum extent appropriate."

Your help is much appreciated.

Thanks in advance.

Sandy

Dear Sandy:

Your questions raises many issues, some of which are particular to your son and the way he is being treated and some are general in relation to the impact of the state wide tests.

In relation to your concerns about the fairness of the Pennsylvania procedure, you may get useful information from the Public Interest Law Center of Philadelphia, which is involved in many of these issues, and from your state's protection and advocacy agency. Your question also raises the important issue of whether the remedial regular education class is being provided in lieu of the development of a more appropriate special education or Section 504 intervention.

In addition, your description of the situation suggests that your son may also be improperly excluded from eligibility for special education services based on criteria that are inappropriate and/or misapplied to his situation and disabilities. Even without an IEP, he may be getting fewer protections and services then he should through his Section 504 plan. There are many things that can and should be offered through a 504 plan, along with the Section 504 prohibition on discrimination against people with disabilities.

What can be disclosed in college recommendation letters regarding disabilities?

What can be disclosed in college recommendation letters regarding disabilities?

Dear Stacey,

This is an important and difficult question. As a general matter, a child's status as a student with a disability is protected by IDEA and typically protected by states' school records and privacy laws.

However, the procedure used by some schools for submission of recommendations often provides an option for the student to waive the right to review the recommendation in order to allow the reviewer to write an honest appraisal of the student. Legally, a student's disability should not be disclosed without their consent, but this is an example where there is some risk that such a disclosure could occur even though the information should have been protected, absent student consent.

How can I challenge statewide tests that I feel are in violation of my students' IEPs?

I want to challenge statewide tests. I feel they are in violation of the IEP. If a child's current reading level is a second grade level, the IEP states that all work must be modified at his instructional reading level, even if that child is in eighth grade. How would it then be legal to make that child take the Ohio achievement test at the eighth grade level? It would be a violation of the IEP.

How can the state continue to get away with this? Not only does testing above documented ability level violate the IEP, it causes a lot of unnecessary pain to these children. How can I go about challenging this?

-Sped teacher in Ohio

Many people are concerned about the negative and discriminatory impact of high-stakes tests on children with disabilities. Litigation has been spreading on this issue throughout the country. You are to be commended for your interest and commitment to your students.

You may want to contact your union, though they may not be interested in getting involved in this issue. There are several not-for-profit legal advocacy groups that are working on this issue. They include the Center for Law and Education, in Washington, D.C., the Public Interest Law Center of Philadelphia, the Disability Rights Education and Defense Fund in Berkeley, California, and other groups.

You may also find information on this issue on the website of the National Disability Resource Network.

Where can the parent of a child with disabilities find free legal help?

My son is 6 and has had an IEP since he was 3. He has continually had the same problems and the school has neglected to find him a placement. The school is making me feel intimidated and I need help for my son. Where can I get help for free since I am a parent on a low income?

Dear Joanna,

Every state has an organization funded by the federal government called a Parent Training and Information Center. The center in your area can be found by going to the website for the Alliance that provides support to these centers: www.taalliance.org. They have a search engine that will identify the center in your area.

The federal government also funds agencies to provide no-cost legal services to people with disabilities in each state, called protection and advocacy agencies. These agencies can be found at www.ndrn.org.

In addition, the Council of Parents, Attorneys and Advocates, has a search-engine listing attorneys and advocates that advise and represent families in special education disputes around the country. Some of these people are employed by agencies that provide their services for free, while others are in private practice, but may provide services for free or on a sliding scale for individual cases.

Finally, your school district and the state education agency are required to provide you, on request, a copy of low-cost or no-cost legal service agencies in your state that provide assistance with special education disputes.

What should we do if we disagree with the school's interpretation of the IEP accommodations?

My daughter is 14 and has had an IEP for eight years. She is now in middle school and her IEP seems ambiguous; the teacher, caseworker, and I have different definitions concerning her accommodations. For example: study guides - if the teacher hands out a note packet to the entire class, she has informed me that this is considered my daughter's study guide. I feel as if the playing field is not being leveled for my daughter to succeed in the LRE.

-Linda

Dear Linda,

Your question relates to concerns about ambiguities in the IEP that are resulting in conflicts over appropriate accommodations. Unfortunately, because the IEP is based on what is written and how those words are interpreted, there often are disagreements as to what the provisions of the IEP mean.

These disagreements are unavoidable, but can be reduced by careful attention to the wording of the IEP. As much as possible, it is useful to spell out the detail of what the various accommodations mean - how will study guides be provided, by whom, and when. If an accommodation is specified as "as needed," how is that decision made and by whom? Under what circumstances will a student be given extra time for homework or tests or be allowed to use a quiet room? What are the criteria for deciding if a student needs reduced quantity of work and who will modify the work? When may a student use a word processor or tape recorder instead of writing things by hand? If books on tape are needed, who will order them and when will they be available (before the material is being addressed in class)?

There are an infinite number of variations, but the more that ambiguity is removed, the more accountability there will be and the less chance there will be for conflicting interpretations. However, sometimes there is a risk that micromanagement of the language of the IEP will itself produce conflict and disagreement, so it is important to pick your battles.

In addition, if there is dispute over the meaning and implementation of an accommodation, you always have the right to ask that the IEP be modified to reflect your interpretation and/or that an IEP meeting be held to discuss the problem. The school is not obligated to accept your position, but this at least creates a means to put the problem on the table and try to resolve it.

If it can't be resolved, you retain the right to seek a due process hearing to prove that the accommodation, carried out in the way you feel is needed, is necessary for your child to receive an appropriate education. You will need to be able to prove why this is needed and should consult with a knowledgeable special education attorney or advocate before taking this step. However, sometimes, schools will reconsider their position in mediation or a resolution session in order to avoid having to go through a due process proceeding.

Is it possible to get the GPA requirement for a bachelor’s degree modified?

My son, with ADHD, has been trying to meet all graduation requirements for his bachelor's degree. The college he attended did not modify any requirements for him, nor did they modify any coursework for him.

He has met all graduation requirements but one. His grade point average is .129 below that of the graduation mark. Is there anything he can do to secure a modification of that requirement?

Thank you for your expertise and help.

I am reluctant to provide an overly broad response to your question, as there may be important details that could impact his position. It is unclear from your question whether he has previously made a formal request for accommodations, with appropriate documentation of his disability and need for accommodations, and been denied, or if he has not formally requested accommodations and the issue is coming up for the first time now.

If he requested accommodations and was denied, he may have legal arguments relating to the failure to provide the accommodations contributing to his lower performance and resulting lower grade point average. However, there are timelines that govern how much time can pass within which one can file complaints for failure to provide reasonable accommodations.

If he did not request accommodations until now, it would be difficult to argue, at this point, that the GPA requirement should be modified, when he did not seek accommodations earlier or avail himself of accommodations that might have allowed him to achieve higher grades. In general, it is difficult to obtain modifications of a GPA requirement for graduation.

He should consult the school's disability services office, review the school's disability policy, and consider consulting with a lawyer knowledgeable about higher education disability law issues. He also has the option of using the college's ADA grievance procedure or filing a complaint for disability discrimination with the Office for Civil Rights of the U.S. Department of Education.

How can I get the independent evaluator who tested my son to remain involved in the IEP process if the school does not want her involved?

Hello Mr. Cohen,

I am the parent of a child diagnosed with PDD-NOS and ADHD. He is in second grade with a history of behavioral issues. We just completed an IEE in which a comprehensive FBA was completed by an excellent professional.

I wanted the professional to continue working with the IEP team to ensure appropriate IEP development, implementation, and documentation of behavioral issues as well as training for the staff. The special education director indicated that her role was strictly to do the FBA as part of the IEE and that her role ends there.

For two years, this school has struggled with providing FAPE for my son. I want her to continue her work through the IEP. The school disagrees...now what?

Thank you, Catherine

Dear Catherine:

From your question, I presume that the school district paid for the independent evaluation. Unfortunately, an independent evaluation at district expense does not typically involve an ongoing commitment from the evaluator and there is nothing in the IDEA provision regarding independent evaluations (either at district expense or your expense) that requires the ongoing involvement of the evaluator. However, there is nothing legally to prevent you from asking for the evaluator to remain involved or to prevent the school from agreeing to it, or even having the district pay for it.

If the school is not willing to agree to pay for the outside expert's continued involvement, you have several options. One is to see if the evaluator is willing to be hired directly by you to provide some type of continuing consultation, though his/her ability to work within the school would be constrained by the school's willingness to cooperate.

Another option is to seek a due process hearing over the failure of the school to provide a free and appropriate education to your child generally and/or to adequately consider and implement the findings and recommendations of the evaluator.

Hopefully, if you requested a hearing, the school might conclude that it was made more sense to pay for the evaluator to remain involved than to have an expensive fight over whether they should be involved. However, you should consult a knowledgeable attorney to fully assess the situation.

What happens if your child needs summer classes, but their charter school does not provide them?

My youngest son has a central auditory processing disorder and a visual processing disorder. He currently has an IEP and is receiving services from his school. I am concerned about the potential of him regressing over the summer. I have discussed my concerns with his special education teacher and while she's not as concerned about the potential of regressing as I am, I don't want to chance my son needing additional services come fall.

If the charter school my son currently attends does not offer summer school classes which address the IEP objectives, can my son receive services at the neighboring public school? Would I need to submit a copy of my son's IEP to the school in order for him to receive remedial assistance over the summer?

Dear Jackie:

The legal status of charter schools varies from state to state. In some instances, they are related to the local public school system, while in others they function as independent units. If the charter school is part of the public school system and your son requires extended school year services, the district would have an obligation to address this, regardless of whether the particular school offered ESY services. Many school systems offer ESY in centralized locations, rather than at every school.

However, if the charter school is independent of the public school district, the charter school may have an obligation to develop and provide an ESY program for your son, even though it doesn't generally provide summer school. The entitlement to ESY is generated by the determination of the IEP team that ESY is necessary. Whether the child attends a charter school or a regular public school, this decision should not be effected by whether the school offers a regular summer school program.

Can the Board of Education overturn an IEP?

What can be done if, after an IEP meeting, the Board of Education does not approve the IEP that was discussed and agreed upon at a CSE meeting?

Liz

Dear Liz,

If the school district does not follow the IEP that has been agreed upon, it is in violation of the IDEA. Among other things, the decisions about your child’s education are supposed to be made by the IEP team, with your involvement. A decision by others outside of the IEP meeting would be inconsistent with this requirement. You could file a complaint with the state department of education, a complaint with OCR, or request a special education due process hearing. You should consult a knowledgeable special education lawyer about the specific issues in your case.

What should a parent do if their child is socially promoted to a grade beyond their abilities?

My child is eleven years old and is in Jacksonville, Florida. For three years, she has made grades of Ds & Fs. In our last meeting, the school professionals said she can do the work and will be fine for sixth grade in junior high. I know my child and I want her to stay back in the fifth grade, but the teachers, staff and school board refuse to discuss our situation. They have not returned my calls after eight weeks. I've been on them for three years. My child failed the fourth grade and they went ahead and passed her based on her FCAT scores. They said she can go to the fifth grade and work on fourth grade math, but that never happened. Now what?

Thank you for your help.
Michelle M. Smith

Dear Michelle,

Your question doesn’t mention whether your child has been evaluated to determine whether she is eligible for special education. Rather than holding her back, you might want to request that she be evaluated to determine why she is having difficulties and to identify what extra help she might need in order to make more progress. If she is already in special education, you should investigate whether the IEP is appropriate, whether she is getting sufficient services and the right kinds of services and whether it is even being implemented as written.

You might seek either an updated school evaluation or obtain a private psychological evaluation to try to determine why she is having academic difficulties. The decision as to whether a student should be retained is complex. You may want to research whether this is generally a good idea or may make things worse in the long run. There is a lot of research available on the internet about grade retention that might help you to answer this question.

How does a parent handle a “cookie-cutter IEP” with goals that are not specific to the child's needs?

My seventh grade son has a classification of LD and ADHD. His IEP goals are too global. They need to be customized to include sequential, structured benchmarks. The CSE always says we can not talk about instructional methodology at a meeting. How do I get my son's customized rather than the cookie-cutter global goals they provide? What specific case law states that at a CSE meeting, a parent and team can discuss methodology?

Thank you so much.
R.B.

Dear R.B.,

Under the IDEA, special education is defined as specialized instruction, including adapting, as needed, the content, method and mode of delivery of instruction. This puts methodology on the table if the school’s programming is not working. In addition, under the 2004 IDEA amendments, the school is required to provide a program that is based on scientific research to the extent practicable. This also can and should be discussed at the IEP meeting. If the school’s program doesn’t use a specific method that is supported by the research (or doesn’t use a particular method at all), the program can be challenged.

What are the educational rights of overseas students in private schools accredited in the United States?

I’m a United States citizen living in Managua, Nicaragua. My six-year-old son has been diagnosed with Dyslexia. He is in first grade at the American Nicaraguan School — a private bilingual school acredited by the U.S Southern Association of Colleges and Schools (SACS).

Against the doctors and parental advice, the school has “retained” my son in the fisrt grade. What rights do I have in this case? Can this type of decision be taken unilaterally by a U.S. private school operating in internationally territory? Please give me your advice.

Francisco

Dear Francisco,

Unfortunately, although the school your child attends is accredited by the SACS, this is a private accreditation program and has no legal force in its own right, other than to remove the school’s accreditation. U.S. special education and disability law generally does not apply to an organization in a foreign country, unless it is operating under the direct auspices of the government, e.g., an school for armed forces dependents operated on the base by the military or receives federal financing from the US government.

You may have rights under Nicaraguan law or under the contract you signed with the school, but you would need to consult a lawyer knowledgeable about Nicaragua’s laws for an answer to that. You may also be able to file some kind of complaint with SACS.

What are the parents' rights when there are less teachers than needed?

Can a parent insist on teacher training or the hiring of staff with specific LD expertise? There are nearly 100 ASD children in the county I live in. The only ASD specific instruction these children have is one autism consultant! This person is only here for suggestions. Clearly, a ratio of 1:100 is absurd!

How can any of those children be benefiting from that? Can I demand my child get one-on-one time on a daily basis with someone who has specific training in dealing with ASD children?

Heather

Dear Heather,

Parents can ask for anything, but schools are not obligated to provide services or staff just because the parent asks. From what you describe, it seems likely that the program, services and staffing levels in your district are inadequate. However, whether in relation to a specific child or the group as a whole, it would be necessary to demonstrate that the child or children are not receiving a free appropriate public education based on inadequate availability of staff or intensity of services.

There is no specific formula or rule for determining whether a child should receive a 1:1 aide — this is decided on a case by case basis. Generally, it is based on the child’s need for direct supervision either for safety, health, or behavioral reasons or because the child requires a level of intensity of instruction that can only be accomplished 1:1.

Unless the school agrees that this is needed, you will need to prove why it is needed, based on the lack of success without additional support, evidence of greater success with 1:1 support and/or clinical evaluations which document why 1:1 is needed.

Schools are required to consider your input and that of outside evaluators, but are not obligated to follow that input. If you reach an impasse with the school, you have a right to request a due process hearing to challenge the inadequacy of the school’s program.

Note from LD OnLine: Many people confuse autism and learning disabilities. They are different disabilities. See the section on autism in Learning Disabilities: An Overview.

How does a parent obtain an evaluation that is more detailed than the school is willing to provide?

We, along with our daughter’s teacher, requested a full education evaluation due to the fact that she is having difficulties in school. We have a meeting and I just received copies of her evaluations. The school failed to separate scores into PIQ vs. VIQ, providing only a full-scale IQ.

I noticed, reading the fine lines, that there was some significant scattering. The school has indicated that her scores are in the “superior” range (full scale IQ is 129), and have insinuated that her difficulties are due to her home life. On the WIAT, she scored 160 in written expression, and 110 in math. I see that as a big difference!

What can I do to ensure she is properly tested. I would like her specifically tested by a neuropsychologist for NVLD, of which she meets all diagnostic criteria. How can I convince the school to do this, as I cannot afford to have the evaluation done privately?

Cynthia

Dear Cynthia,

If the school is not willing to conduct a specialized evaluation based on the information that has already been provided to them, you have a number of options — none of them ideal. Your situation is also more difficult because you don’t have the resources to get an outside evaluation to prove that the school is wrong. However, you do have some options.

First, you can try to educate them about NVLD yourself by providing them with literature from experts in the field about the disorder. Second, you could file an administrative complaint with the State Department of Education or the U.S. Department of Education, Office for Civil Rights, complaining that the school is discriminating against your child by using improper criteria for evaluating the test data, using evaluators that may not be knowledgeable about the suspected disability, and failing to consider all areas of suspected disability.

Third, you could request an independent evaluation at district expense. The district could then either decide to pay for a private evaluation or would need to initiate a due process hearing to prove that their evaluation was appropriate. Finally, you could initiate a due process hearing yourself and request that the hearing officer order an outside evaluation based on the problems/concerns you have identified.

Can a child be coded eligible for special education services with more than one disability?

Can a child be coded OHI AND LD or ED AND SLI, etc? Some jurisdictions adamantly refuse to do this. Is this legal? What happens if both disabilities have a significant adverse impact on the child and the magnitude of their impact cannot be differentiated? Sometimes one is not more dominant than the other?

Dear Margaret,

Your question addresses whether a child may be "coded" or identified as eligible for special education services under multiple labels, such as OHI and LD. Alternatively, you are interested in whether a child with multiple disabilities can or should be labeled as Multiply Impaired. At the outset, the IDEA makes clear that the label that is assigned by the school is for the purpose of establishing eligibility for services, but is not supposed to predetermine or limit the placement or services that the child is provided.

The child's needs, related to the identified disability (ies), whether directly or indirectly, all must be addressed by the IEP with goals, services, and/or accommodations. If your child has been identified as having multiple disabilities, this should be reflected on the IEP, regardless of whether the child is formally identified with both disabilities under the state coding or labeling system.

States vary as to whether schools should formally assign labels for all disabilities that meet eligibility criteria, whether the disabilities should be prioritized as "primary" and "secondary," or whether only one label should be used for purposes of eligibility. Again, regardless of the state labeling rule, all identified disabilities must be addressed, as well as the indirect effects of those disabilities.

With respect to the Multiple Impairment label, this is not intended to be used for any child with more than one disability. Rather, it is specifically intended for those children that have multiple, SEVERE disabilities. Thus, in the examples you offer, the Multiple Impairment label might be an option, but more likely would not be appropriate. The use of the MI label is not related to whether the several disabilities are equally significant in their impact, but rather that several are severe.

Can a high school IEP be used to document the need for disability support services in college?

My son was diagnosed with Aspergers when he was three. He was served through special services in our county through elementary to high school. He has recently enrolled at our local university. I met with the person in charge of students with disabilities. She told me she would not accept his IEP from high school. She stated she needed a new psychological testing. What should I do?

Dear Melinda,

You are interested in whether a university in which your son is enrolled is obligated to accept prior evaluations and his high school IEP. The special education system, which is based on the federal Individuals with Disabilities Education Act, is only applicable to public elementary and high schools. It is not legally controlling with respect to the obligations of public or private colleges and universities. Rather, the obligations of colleges and universities with respect to students with disabilities are defined by the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.

The ADA applies to all colleges and universities, except those that are religiously controlled. Section 504 applies to all colleges and universities that receive federal funding, regardless of whether they are public, private or religiously affiliated. Students seeking accommodations in college based on their disability have the burden of identifying themselves to the school as having a disability, providing up-to-date and clinical documentation of the disability, as well as documentation of the impact of the disability on their performance and the need for reasonable accommodations to ameliorate the impact of the disability.

Public elementary and secondary schools are affirmatively responsible for identifying all children suspected of having disabilities, and, where indicated, conducting evaluations to determine if the child has a disability that meets the eligibility criteria for special education. Colleges and universities have no obligation to seek out or identify whether students have disabilities. The student must disclose the disability and provide documentation, as described above.

Colleges and universities may vary in their rules for how recent the clinical evaluations must be. The length of time since the student's last clinical evaluation was conducted may also be viewed differently depending on the identified disability, as some courts have held that some disabilities may be more chronic and consistent than others. In addition to providing clinical documentation of disability, the need for reasonable accommodations must also be documented.

If a student has been eligible for special education services or had a Section 504 plan while in elementary or secondary education, this is important evidence of the history of disability and the need for accommodation, but does not automatically require the college or university to either accept that the student has a disability or to accept the accommodations that were previously provided. Even assuming the college agrees that the student has a disability that substantially limits a major life function, the ADA and Section 504 only require the provision of "reasonable accommodations."

While the list of such accommodations is extensive, it is far more limited than the services required under the IDEA for students in elementary and secondary education. Further, the right to a particular accommodation may be individually evaluated by the college, which may decide the accommodation is not needed, is not reasonable, is unduly burdensome, or would fundamentally alter the nature of the school's programs. Students interested in receiving accommodations should contact the college or university's office of disability services.

Information on the right to accommodations in higher education can also be obtained from the website of the US Department of Education's Office for Civil Rights and from Association on Higher Education and Disability and HEATH Resource Center.

Note from LD OnLine: For more information read The Documentation Disconnect for Students with Learning Disabilities: Improving Access to Postsecondary Disability Services, a paper by the National Joint Committee on Learning Disabilities.

How do adults with ADHD or learning disabilities obtain evaluations if they do not have the money?

I have a 26-year-old son who I think may have ADHD. He was not diagnosed as a child, but in retrospect was exhibiting the symptoms of ADHD. He does not have insurance and we cannot afford to pay out-of-pocket for his evaluation or testing. Is there any resource available for this?

If your son is indigent and unable to work, there are a number of government programs that he might qualify for, including SSI and Medicaid. Depending on where you live, a number of public or not-for-profit hospitals or community mental health centers provide consultation and evaluation services for people that are suspected of having psychiatric disorders, including ADHD.

Unfortunately, given the current economic situation and huge cutbacks in funding for public programs like this, it may be difficult to find an agency that can be accommodating. As a starting point, you should identify the stage agency that provides mental health services and the agency that provides public aid and health care to determine what programs are available in your community and how to access them.

What happens to the IEP when the child moves to middle school?

Does an IEP stay the same when your child goes to middle school? I have a child who goes to school 3.5 hours a day and studies math, reading, and language. The teacher is telling me that things are different in middle school and my daughter has to take science and lose one of the three recommended!

She also states my child has to change classrooms no matter what! Nothing in the IEP is being followed and I am considering homeschooling her if the IEP cant be followed. Please help!

Debra

Dear Debra,

The IEP is supposed to be reviewed and revised on at least annually, regardless of whether your child is changing grades or changing schools. The IEP must be tailored to the child's individual needs, regardless of the setting in which it will be implemented.

As students move up grade by grade, the IEP must be adjusted to take into account the differing needs the student may have in response to the increased demands of the higher grades and the new schools. If the school is failing to implement the IEP, this is a potential violation of your child's right to a free appropriate public education, regardless of which grade or school they are attending in the current year.

What do you do if the school refuses to test your child for learning disabilities?

My daughter attends middle school in Ohio. Last year, I requested testing to see if she needed an IEP. It never happened. She has been struggling for some time now. She has asked many times for help from her teachers and they would angry and embarrass her so she stopped asking for help. It got to the point that I had a hard time getting her to go to school. This year, the school is retaining her in the seventh grade. I feel she is getting treated very unfairly and is being deprived of a education. Is there anything I can do?

Thank you so much.
Julie

Dear Julie,

If your child is not doing well in school and you suspect she has a disability, you have a right to request that she be evaluated for special education. You have apparently done this, though it is unclear whether you made the request in writing. If not, you should do so in writing immediately.

When the school receives a written request for evaluation for special education, it must either agree to conduct the evaluation, and obtain your informed consent for what the evaluation will include, or notify you of the refusal to conduct and evaluation and of your right to request an impartial due process hearing to challenge the refusal. It is unclear from your question whether you have had your child privately evaluated.

Sometimes where the parents are able to obtain a thorough outside evaluation, this can cause the school to reconsider its refusal to evaluate the child. Under some circumstances, some schools may even accept the private testing in lieu of some of the testing the school would have otherwise been required to conduct. If your child is being retained, there is clearly a significant problem with her academic progress.

Those problems may be due to a disability, though that is not necessarily the case. You can protest a retention decision to your school district's superintendent and board of education, but that does not address her need for special education. To address that problem, you may need to obtain outside testing, request a due process hearing, or file a complaint with the state education department.

In any event, you would be wise to seek advice from someone at your state's Parent Training and Information Center), and/or from a knowledgeable special education advocate or special education attorney.

Note from LD OnLine: For more information on what should happen in an evaluation, visit Evaluation: What Does it Mean for Your Child.

How can a parent get help for an ADHD daughter who is refused special education services?

I have an eighth grader with ADHD. I am meeting with her teachers, which is something I've done for the last three years. I keep butting my head against the wall because I tell them she has ADHD and I am told she is responsible for doing her homework, studying for tests, and doing good in school. The testing showed my daughter doesn't qualify for special education classes. When I try to help my daughter study for a test or do regular homework assignments, she is not learning the way I did.

How can I make the teachers understand that my child learns differently and that I am willing to work with her so she won't struggle all year long like the last two years if they will help her, too? My daughter failed four subjects in the seventh grade, but the principal passed her to eighth because her grade point average was over a 70.

I let it happen against my better judgement, but told my daughter I would hold her back this year if she didn't pass all her classes. I know she will be totally lost going into high school in the ninth grade next year. Can you offer any advice?

Debbie

Dear Debbie,

Your question relates to your efforts to secure help for your daughter, who has been diagnosed with ADHD and struggles academically, but has been refused special education or Section 504 protections by your school district. Children with ADHD can qualify for special education under the category of "Other Health Impairment," if their ADHD causes them to have difficulty with paying attention or completing the many other tasks necessary for successful participation in class and completion of work.

The IDEA, the federal special education law, makes clear that schools are responsible for evaluating children that are suspected of having disabilities. They are also responsible for responding to requests for evaluation for services. They may either agree to conduct the evaluation, and, with written informed consent from the parent, complete appropriate multi-disciplinary assessments to determine if the child is eligible or they must notify the parents of their refusal to conduct the evaluation and the parents' right to request a due process hearing.

When the school conducts an evaluation to determine special education eligibility, they must evaluate not only the child's academic performance, but their developmental and functional performance as well. Thus, even if a child is receiving passing grades (which may not even be true for your child) and/or is showing that she is learning based on achievement test scores, she still may be determined eligible if the assessments show that she is having other difficulties in relation to her functioning at school that are due to her disability.

For a child with ADHD, this can include difficulty paying attention in class, completing work on time, having the appropriate materials, meeting deadlines, following classroom rules, such as not talking without being called on, etc. These are all things that may evidence functional or developmental problems, even if the child is passing or showing academic progress.

Similarly, under Section 504, a child may qualify for a Section 504 plan based on having ADHD if their ADHD substantially limits a major life activity, such as learning, and requires either special education, related services and/or accommodations. The U.S. Department of Education issued a policy letter in 1991 which made clear that children with ADHD may be entitled to accommodations under these circumstances, even if they do not meet the eligibility criteria for special education.

You may need to provide clinical reports documenting the ADHD and its impact on your child's functioning at school. In addition, you may want to monitor your child's behavior at school and when doing homework, to document the ways that the ADHD is disrupting their learning, behavior, social relations, etc. You may also need to consult with a knowledgeable special education advocate or attorney to assist you in getting the school to recognize your child's needs and provide either an IEP or Section 504 plan.

Can the school force an LD student to take a specific class as an elective?

Our 15-year-old son, diagnosed with Dyscalculia and Dyslexia is being forced to take a second math course in high school as an elective because he scored at Academic Warning in math on state assessments. In so doing, he will lose one of his two electives and have to choose between Band and Study Skills. Losing electives is detrimental to his success in the school setting, in our opinion. What are his rights and how do we advocate on his behalf in this situation.

We would like for this course to be his math elective instead of free choice elective if it is so important for him to pass the state assessments. Surely we aren't the only parents in this situation.

Cathy

Dear Cathy,

I am unable to determine from your question enough information to fully answer it. However, if your son has been identified with a learning disability in math, it may be appropriate for the IEP team to revisit his math services and develop a more appropriate and effective math program, rather than have him take two periods of math.

While the rules in relation to state tests vary from state to state, the IEP team generally has some authority to provide for individual accommodations and/or deviations from normal requirements to address a child's needs and the schedule and test accommodations that are necessary as a result of their disability.

As to the issue of a math class vs. electives, the IDEA/special education law does not address a specific entitlement to electives. However, Section 504 prohibits discrimination on the basis of disability. One might argue that it is discrimination based on his disability to prevent him from participating in normal electives due to his math problems, particularly if there was a problem with the adequacy of the math instruction.

What do you do if your child is removed from special education and then does not do well?

My son is a junior in high school. He has received special education services under an IEP throughout his academic career due to a combination of learning disabilities. Each year, he is assigned a case worker who helps us choose his classes and monitor his progress. Up until now, decisions about which classes Josh should take have been left entirely to his case worker and me.

This year, however, when Josh passed the CAHSEE tests, he was removed from 83% of the special education classes in which he was enrolled and put into mainstream classes that he is now failing miserably. At first, I supported the decision to move him because I think it's important that he work to his full potential. Once it became obvious that he needed to move back to special education classes or risk failing and not having enough credits to graduate on time (he is currently down 20 credits and has no room for failure whatsoever), I have met with school counselors and administrators at least five times to voice my strong opposition to this path "mainstreaming" that he is being forced into.

Although his case worker agrees with my position, administration has repeatedly refused to put him back into special education classes. He will not meet graduation requirements if he is made to stay in these regular classes. His performance reflects his lack of understanding since they moved him, but they insist he is not working to his full potential. Is there anything I can do? Thank you for your time and attention.

Kimberly

Dear Kimberly,

You are concerned that your district moved your son from primarily special education classes to mostly regular education classes in his junior year, that he is now failing, and that the district is unwilling to return him to special education classes. First, although you indicate that you have met with administrators five times, your question is unclear as to whether those meetings were formal IEP meetings. If not, it would be advisable to request one.

Second, if there is a dispute as to why your son is failing in regular education, you may want to either request that the school conduct an updated evaluation of him to determine the cause of his failure, rather than assuming he is simply not working to his potential, or seek an outside psycho-educational evaluation at your expense to see if the clinician can help you to demonstrate why he is having difficulty and the need for special education. If you disagree with his placement, you always have the right to request a due process hearing to challenge the school's decision.

Can the school district refuse to provide a service because there is no money for it?

Can a Director of Special Education of a District state that our son will not receive a paraeducator in his class due to funding? His IEP states: "Beau needs paraeducator/adult help to help keep him focused during content area (science and social studies) in the classroom."

I thought that this IEP is a legal and binding document. Isn't the funding that Beau brings to this district via his disability diagnosis supposed to help cover this? How can he tell the Special Education teacher that she will not be receiving an aide due to funding issues after she has made the request and it is noted in his IEP as needed?

Please advise, as this is the type of thing that really begins to anger a parent and question what these folks are doing. We sure seem to have enough money to put artwork in the courtyard, but not enough money to implement help with IEP requirements?

Thank you,
Steve

Dear Steve,

If the school's IEP specifically lists the need for a one-to-one aide, the school should not use lack of funds as an excuse for not providing the service. However, it may be important to make sure that the one-to-one is listed on the services page, with actual minutes of service, so there is no doubt or question of the commitment to actually provide it.

Can a diagnosis of ADHD influence a judge's decision in a criminal trial?

My son has ADD/ADHD and we had hopes he would eventually grow out of it. As his lifestlyle became difficult, it also has become expensive where he has skipped court appearances to take a test. He neglected to think of resheduling after the fact and then let go of the responsibility, causing him unbelieveable problems later. It seems to repeat itself again and again.

The courts are probably enjoying all of his huge fines. I am so afraid they need to relate to his problem this time, and he needs to also get help. Would it be a good idea to disclose his medical diagnosis of ADD to a judge in hopes of decreasing a fine he has to get hit with? He owes probably $6,000 in fines already. And this new one could be as much as another $1,000 or more.

What do you think? I wish I would have turned to this sooner. He may have not so many problems now.

Deborah

Dear Deborah,

The questions you raise are criminal matters. You should consult with a local criminal lawyer in your area with respect to your specific issues. However, as a general matter, it may be helpful to understand the role that disability can potentially play in any criminal proceeding. There are essentially four ways that disability can be a factor in a criminal case.

First, if an individual is clinically and legally incompetent to understand and participate in their own defense, they may avoid going to trial, either temporarily, or if their condition is permanent, forever. This could occur when an individual is severely mentally retarded or severely mentally ill and requires a high level of expert proof. Generally, if someone is not competent to stand trial, they are ordered to receive treatment and may still be tried at some point if they regain competency. ADHD usually would not be a serious enough condition to render someone incompetent to stand trial.

Second, if a person is competent to stand trial, states have differing rules, but generally allow severe impairment, e.g., severe retardation or insanity, to be used as a defense. Depending on the state, that may lead to a number of different technical verdicts, which have the effect of avoiding the normal penalties, but generally lead to the person being hospitalized or institutionalized, typically as long as their condition persists. As with the issue of competency to stand trial, it is highly unlikely that ADHD would be accepted as a defense, such as an insanity plea.

Third, disability can be taken into account as a mitigating measure. This occurs where the person is found guilty, but evidence suggests that the person's disability contributed to their conduct. This may, under some circumstances, lead to a less harsh sentence.

Finally, disability can be a factor in relation to what is called the disposition or sentencing stage. If it can be established that the person has the disability, that it impacted their conduct, and that they need treatment, the court may take this into account both with respect to the severity of punishment and in consideration of therapeutic options as part of or instead of incarceration.

The circumstances where disability is given serious consideration vary widely with each case, each judge and with the laws of the particular state. Unfortunately, many courts, and even many lawyers, are not very familiar with ADHD and may not see it as a serious factor in the case, even when it did have a significant impact on the individual's conduct. Again, it is important to consult with a criminal lawyer in your state to assess whether your son's diagnosis has any significance in relation to his criminal defense.

What are some legal strategies to help a child with a disability who is being punished for behavior related to their disability?

My daughter with learning disabilities was isolated in the classroom as a punishment for having difficulty focusing. Recently, she reported that she was threatened with being sent to the principal's office because she didn't ask for help with a math assignment. She is very intimidated by this resource room teacher who frequently yells at her.

My daughter doesn't have behavior problems, but is struggling with her LD in math. We have had numerous meetings with the principle and teachers. Is there legal protection for a disabled child in the classroom being treated in a punitive way?

Sheryl

Dear Sheryl,

Your concern that your child is being punished by the resource teacher due to her difficulty in focusing, which may be related to her disability, which you indicate is a learning disability in math. While your note indicates that your daughter does not have behavioral problems, difficulty in focusing is a behavior which may be due to her already diagnosed issues or to a separate undiagnosed disability.

In addition, if your child is being sent to the principal for problems she is having in the resource room, it would be appropriate for you to request an IEP meeting for the purpose of developing a positive behavioral plan which will assist her with the behavior that is leading to her being disciplined. You may also request that the school district perform a functional behavioral analysis and develop a behavior intervention plan to deal with the difficulties in focusing and any other problems that are contributing to her being sent to the principal's office.

In addition, from the circumstances that you describe, it is possible that your child's teacher is not using the appropriate techniques to address her math disability. It may be appropriate to review her IEP to analyze if different or more appropriate strategies could be implemented to address the math problem.

You may wish to consult with an outside educational specialist or clinical psychologist to review her program and the strategies that are being used in the resource room to assist her to come up with additional ways to address this problem.

What financial responsibility does the school district have for children who need private schools?

Our school district refused to pay for a private education for our special needs child because they say the school is out of their boundaries, even though it is in the same state. Now they are saying they do not have to honor our request for a speak tech device since he is attending a school out of their "boundaries."

They state that the district of the school he attends should be the one paying for it. A child advocate told us this is wrong and to fill a complaint and obtain an attorney. Please advise!

Debbie

Dear Debbie,

Your questions raises a concern about your districts obligation to pay for private school outside of the school districts boundaries and to provide an assistive technology device that your child needs while attending that private school. Your question is ambiguous as to the circumstances that led to your child being placed in the school outside of your districts boundaries and the nature of the consideration by the school district as to whether this placement was necessary.

If the school district determines that the child requires placement in another public school or a private school due to the districts inability to provide that child with a free appropriate public education themselves, it is the school district's obligation to provide funding for that non-private or non-district program, regardless of whether it is in the school district's boundaries. On the other hand, if you made the placement to that private school because you believed that the private school was appropriate in comparison to your own public school, you may seek funding from the public school for that placement, but they are not automatically obligated to provide such funding just because you feel that the program is more appropriate.

In addition, where a parent unilaterally places a child in a private school, whether or not it is in the districts boundaries, the parent is required to provide the school district prior notice, either in writing 10 business days prior to the enrollment or at the IEP meeting prior to the enrollment identifying the intention to enroll the child in the private school, explaining that the enrollment because the public school has not provided a free appropriate public education, and explicitly requesting that the school district assume financial responsibility for the private school placement. Provision of this notice does not automatically require the public school to provide funding for the private school. Failure to provide the notice gives the public school a defense to the potential obligation they might otherwise have to pay for the private school.

If you voluntarily placed your child in the private school, and your child seeks additional services, whether special education, related services, or assistive technology, the public school is not automatically obligated to provide services to your child. In fact, under the rules relating to children voluntarily placed in private schools, any obligations for services would fall on the district in which the private school is located. The public school district in which the private school is located is obligated to develop a plan to provide a proportionate share of its federal special education reimbursement dollars for services voluntarily enrolled in private schools. The amount of money that is available for these proportionate services is very limited.

In addition, the services that are to be provided are not based on any individual child's needs or entitlement to services but are based on the districts plan for distributing those proportionate share dollars to children in private schools generally, based upon consultation with the private schools and families with children who attend those private schools. There is no individual entitlement to special education and related services for children who are voluntarily enrolled in private schools.

Can the responsibility for a child's education be shared between homeschooling and public schooling?

I don't know where to submit a question, and I haven't seen this on your website. Can modified school hours be incorporated into an IEP in the state of Georgia? If not, are there states that have allowed this?

I would like to see a happy medium between straight public school and home school/virtual academy. My daughter needs more one-on-one time; yet I am not allowed to provide that during school hours when her mind is most fresh. Part-time school or early release would be desirable. Thank you.

Juanita

Dear Juanita,

Your question addresses whether your child can have a modified/part-day schedule in Georgia. I can not respond in relation to Georgia. In fact, the rules on this vary from state to state.

Some states are very supportive of children attending the public school for part of the day and home-schooling for part of the day. Other states prohibit this option unless it is recommended specifically by the IEP team. You will need to check your state's rules to determine what is permitted.

What are the legal rights of a gifted child with non-verbal learning disabilities?

My son has NLD. The school doesn't recognize this and will not make any accommodations to help him. He is in the gifted program, but isn't "acting" the way they think he should (focus issues). So now the school wants to move him into a regular classroom without any additional resources (since they don't recognize NLD.) How do we get them to recognize this and get the help we need?

Betsy

Dear Betsy,

Your question raises two separate concerns regarding, first, the unwillingness of your district to recognize your son's non-verbal learning disability, and second, the unwillingness of the school to continue to serve your son in an accelerated or gifted program because he is performing adequately from an academic standpoint, although he is not functioning well in other ways.

IDEA and the special education labeling system do not explicitly list every clinical or medical disorder that may constitute a disability and adversely affect a child's ability to successfully perform at school. The nature of non-verbal learning disabilities are such that the child may clinically meet the criteria for the diagnosis of a non-verbal learning disability, but not satisfy the educational criteria for one of the thirteen categories for disability.

However, it is worth exploring further whether or not your child does in fact meet the criteria for one or more of the categories of special education eligibility, based on a more careful review of his records and a more thoughtful analysis of the potential categories where he might be eligible.

First, a child with a non-verbal learning disability generally has deficits with respect to visual perception and non-verbal thinking skills. Some of these deficits may manifest themselves in relation to explicit learning disabilities which meet the criteria for specific learning disability. Often, children with non-verbal learning disabilities have deficits in math and written expression which may be documented through more careful analysis of the existing test data or more in depth testing in relation to areas of academic functioning in which the student has relative weaknesses.

Second, a student with non-verbal learning disabilities often has deficits in social perception and interaction. These may meet criteria for eligibility under the emotionally disturbed category or under the speech and language category with respect to deficits in pragmatic language. With respect to the potential areas of eligibility described above, caution should be used with respect to the use of the emotionally disturbed category, as this may lead to misinterpretation or assumptions about the students difficulties or a tendency to group the student with other students with very different emotional or behavioral problems, which would be inadvisable for a student with a non-verbal learning disability.

With respect to your son's need for accelerated or gifted services, the lack of focus itself may indicate itself a disability which could qualify him for special education or 504 eligibility. In addition, a recent advisory letter from the U.S. Department of Education affirms that the fact that a student is bright and capable of functioning in upper level classes, but is unable to consistently meet the standards of those classes due to their disability, is not by itself justification for removing the child from those classes to put them in easier classes. Instead, consideration of the provision of accommodations or supports in the upper level classes should also be made.

The U.S. Department of Education Office for Civil Rights letter was issued on December 26, 2007. In that policy letter, the Department made several statements that were relevant to your question. First, the Department expressly stated "the practice of denying, on the basis of disability, a qualified student with a disability the opportunity to participate in an accelerated program violates both section 504 and Title II. Discrimination prohibited by these laws..."

Under Section 504 and Title II, "a recipient may not utilize criteria or methods of administration that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability... A public entity also may not impose or imply eligibility criteria to screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully or equally enjoying any service, program or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered."

The OCR statement also indicates, "in general, condition and participation in accelerated classes or programs by qualified students with disabilities on the basis of forfeiture of necessary special education or related aides and services amounts to a denial of FAPE under both part B of the IDEA and Section 504... Participation by a student with a disability in an accelerated class or program generally would be considered part of regular education or the regular classes referenced in the Section 504 and the IDEA regulations. Thus, if a qualified student with a disability requires related aides and services to participate in a regular education class or program, the school can not deny that student the related aides and/or services in an accelerated class or program."

"For example, if the student's IEP or plan under section 504 provides for Braille materials in order to participate in the program, and she enrolls in an advanced history class, then she also must receive Braille materials in that class. In the same, it would be true for other needed aides or services, such as extended time on tests, or the use of computers to take notes."

In addition, although your student may not qualify for eligibility under the special education system, they may qualify for eligibility for accommodations under Section 504 which contains a broader basis for eligibility. Under Section 504, the student is eligible for accommodations if they have any physical or mental impairment which substantially limits a major life activity, including learning. Thus, section 504 is not dependent on the student satisfying a particular disability category contained within the IDEA, such as a specific learning disability.

Can the school make a child study at home instead of being in the classroom?

I have a 15-year-old son diagnosed with auditory processing disorder and bipolar disease. I was recently "asked" to put him on home study and receive five hours a week of instruction. I have him under regular care of a psychiatrist and am deeply concerned that five hours a week isn't sufficient for a freshman in high school. The teaching staff is complaining that he is sleeping in school and is defiant (only at times) to his main resource teacher. They have basically kicked us out of school at this point. What can I do?

Jeanette

Dear Jeanette,

Your question concerns the school districts request that you place your child on five hours per week home study due to problems functioning at school which you believe result from your son's central auditory processing disorder and bipolar disorder. First, the decision to place a student on home study is a change of placement which must be determined by the IEP team, of which you are a member.

If you disagree with the recommendation of the IEP team, you have a right to request a special education due process hearing to challenge the proposal. If you request a hearing within the time period provided by your state for challenging a proposed change of placement before it becomes effective, your child must remain in the last agreed upon placement until the due process hearing is resolved.

In addition, although states typically have rules about the minimum level of services a child is entitled to if a child is placed in home study, the requirement is that they continue to receive a free appropriate public education. The services offered would constitute a minimum obligation, rather than the extent of services to which they are necessarily entitled. If you felt that home study was advisable, you could seek additional hours of service and/or related services from the school district beyond those that they are currently offering.

In addition, if you feel that your child should remain at school but is having difficulty by virtue of their disability, you can challenge the school district recommendation for home study and suggest that more intensive or different services be provided to your child at school in order to address the problems they are having which is leading the school to seek the home study option.

Generally, it would be important for you to have support from outside professionals and/or school staff for the provision of different and/or more intensive services within the school. If the school refuses to provide your desired services within school, this could also be the basis for a due process hearing.

Finally, your question suggests that the school is in effect "kicking out" your child. If the school district is refusing to allow your child to attend school, this would constitute a constructive suspension or expulsion even if the school has not officially initiated suspension or expulsion proceedings. Suspensions in excess of ten school days constitute a change of placement which requires the convening of a special manifestation meeting to determine if the behavior relating to the exclusion is related to the disability, as well as the initiation or review of existing functional behavioral analysis and behavioral intervention plans to address the behavior that is leading to the proposed exclusion.

Again, you would have the option of requesting a due process hearing if you feel that your child is being improperly excluded from school. Even if you're the decision to exclude them from school would ultimately be upheld, your child retains the right to receive continuing services to allow them to make progress on their goals and objectives, have access to the general curriculum, and to address the behaviors that are leading to the exclusion.

What does the parent do when the school bus schedule does not allow the child to stay in school the entire day?

I have a question about special education transportation and school times. We started my children in a new school in December. I have four children -- all with special needs. Two of these children have to ride a special bus. It took me until February to get this done at our new school district.

Well, the problem is that school hours are 8-3. They are picking my children up around 8:50 in the morning and dropping them off at 2:20 in the afternoon. We are eleven miles from the school and these children are in two different schools -- one in elementary and one in middle. They are missing about 10 hours of school a week! And today I was told by my 6th graders teacher that the work he is missing when he is picked up at 2:00 would help him. She asked if I wanted her to send it home with him each day.

What can I do? Clearly if I were to get my children to school late everyday and picked them up an hour early they would turn me in to DCS! I have called to try to set up a meeting with the county's special education director but she has not called me back yet.

Dear Vanessa,

Your question raises a very important issue resulting from the limitations on your children's school day to their being picked up late and being returned home early in the afternoon because of their bus schedule.

Under the IDEA, your child is entitled to equal educational services and to the level of educational services necessary to provide them a free appropriate public education. If they are missing needed services because of the bus schedule, it is hard to imagine how their program could then be meeting the right of a free appropriate public education.

Can I get the school to pay for outside tutoring at a for-profit learning center?

How likely is it for us to get a public school to help pay for outside tutoring at a Sylvan learning center? My son has severe ADHD, as well as a diagnosis of depression. After being turned down for an IEP at his public school, we decided to take him to Sylvan learning center. He was tested at Sylvan and their results indicated substantial deficiencies that are consistent with problems we have seen and reported to my son's school for several years. It was the first time in years that I have seen anyone pinpoint his problems with such accuracy.

After years of trying to get his school to provide remedial services (which they denied after testing him), the best they can come up with is 504 accommodations, but no specialized instruction. Without any specially designed instruction, and cumulative lack of progress over the last few years, he is now at least two grade levels behind in reading comprehension, writing, and study skills. He is also about one grade level behind in Math.

His grades from last year were terrible, yet his school sees no reason to give him an IEP. If I show them the test results from Sylvan, are they required to consider them, and can I get any help to pay for the tutoring? It will be about $8,000 and a year's time to get our son back on track. I do plan to consult an educational law attorney but my guess is that we could easily spend $8,000 just trying to recover the cost.

Christine

Dear Christine,

Your question raises concerns about your school district's failure to identify in a timely fashion your son's disabilities or to provide appropriate services to address those disabilities. You are interested in whether you can recoup the cost of tutoring that you paid for through the Sylvan Learning Center.

At the outset, it is important to understand the process by which students may be considered for eligibility. The school district is obligated under federal law to engage in Child Find activities. This means that they are obligated to seek out and identify any child suspected of having a disability in their district to determine whether they need an evaluation to determine eligibility for special education.

At the same time, parents have the right to request an evaluation for this purpose at any time. Whenever a parent requests that their child be evaluated for special education, they should do so in writing and keep a copy of the request. When a school receives a request for an evaluation from a parent, it may agree that an evaluation is appropriate and meet with the parent to identify the areas to be tested and obtain the parent's written informed consent.

Alternatively, if the school decides that an evaluation is not necessary, it is required to advise the parent of that decision in writing, the reason for the decision, and inform the parent of their right to request a special education due process hearing to challenge the refusal.

You have indicated that you obtained testing as well as tutoring, from the Sylvan Learning Center indicating that your son was having learning problems. You should be aware that testing may indicate learning problems, without necessarily being sufficient to diagnose the presence of a learning disability. Specialized testing designed to diagnose learning disability is currently needed for this purpose.

It is unclear from your question whether the testing that was performed included those types of tests. While a school district is required to consider all private evaluations admitted by a parent, they are not obligated to accept the findings, conclusions, or recommendations of that evaluation. They are obligated to explain why they are not accepting the testing if they decide that it is insufficient or incorrect.

Complicating matters further, under some circumstances, private evaluators, using clinical criteria, may identify the presence of a learning disability based on their standards, while the school may conclude that the student does not meet their criteria for a learning disability. Further, under recent changes to the process for evaluating learning disability, great emphasis is being placed eliminating concerns about the inadequacy of instruction as an explanation for underachievement while using a Response to Intervention model prior to or as part of the evaluation.

If it is determined that your child does have a learning disability which was previously unidentified by the school district, you may have a basis for seeking compensatory services or reimbursement of the cost of the outside tutoring that you obtained on your own. However, schools are often reluctant to offer such remedies unless the parent has requested a due process hearing and the remedy was provided through mediation or in response to the hearing officers order.

Apart from the individual remedies relating to your sons suspected disability described above, you may want to check your schools standing in relation to adequate yearly progress under the No Child Left Behind Law. Under some circumstance, if a school has failed to make adequate progress for a number of years, parents may have the option of obtaining outside tutoring from approved tutoring programs, at school district expense. Given what you have described, consultation with a special education attorney is advisable.

Note from LD OnLine: For more information, read Understanding the Special Education Process.

How does a child with ADHD qualify for an IEP or 504 plan?

My son has ADDHD and is under the care of a psychiatrist and psychologist who both state my son should be covered under 504. His school does not feel he qualifies for IEP. My son is about to fail his classes due to his problems. Can anything be done?

Dear Michael,

Your question indicates that your child has been diagnosed with ADHD by a psychiatrist and psychologist, both of whom recommend that your son be made eligible for a Section 504 plan. Your question then indicates that the school feels your son does not qualify for an IEP even though he is about to fail his classes.

First, you should be aware that an IEP and a Section 504 plan are different. There are different criteria for a Section 504 plan and an IEP. A Section 504 plan requires that a student have an impairment which substantially limits a life activity such as learning. In order to qualify for an IEP, the student must meet the eligibility criteria for one of the 13 categories of disability under the special education law.

In relation to ADHD, the category that is generally utilized is "the Other Health Impaired" category. In order to qualify for an IEP, the student must have a health impairment, such as ADHD, which causes limited strength, vitality and alertness, including limited ability to pay attention to the teacher, which adversely affects the students performance and requires special education intervention.

In either event, the fact that your child has been privately diagnosed would have to be considered by the school district but does not automatically require that the school make the child eligible. The school may decide to accept the outside evaluations, to conduct their own evaluations with your consent, or deny that the student needs an evaluation or services at all. If they decide that the student does not warrant an evaluation or services, they must provide you with written notice of that decision and of your right to request a due process hearing to challenge the school districts refusal to conduct an evaluation or to provide services.

Can a private school refuse to accommodate a child with a disability?

Our child is going to a private school and has a reading difference. We are doing everything they ask. They have said they cannot accommodate her next year. We said we will do whatever it takes to keep her there. We all love this school. Also, she has a twin sister who is doing well. They are in second grade. Do we have any recourse legal or otherwise under No Child Left Behind?

Your question addresses the decision by the private school that your child attends, that they can not accommodate her and will not allow her to return next year. Under the Americans with Disability Act, private schools or places of public accommodation must refrain from public discrimination and provide "reasonable" accommodations to persons with disabilities. The only exception for private schools is for those that are religiously controlled, in which case the Federal disability rights laws do not apply.

However, in some states and localities, state and local disability rights laws do apply to religiously controlled private schools, which may also be a source of protection. However, the fact that your child has a disability and is entitled to reasonable accommodations it is not something that is an automatic entitlement.

Rather, you must provide documentation of the disability, request formal accommodation, and give the school an opportunity to respond. If they determine that the accommodation is unreasonable, they may refuse it. You have the right to appeal these decisions, both with the school and ultimately in to court if you can not reach agreement.

Can a school deny a student special education services on the grounds that Central Auditory Processing Disorder is not a learning disability?

My 13-year-old son was diagnosed with SID (sensory integration dysfunction) and CAPD when he was eight years old. He has also been in speech and language since the second grade. I have been battling his school district to get him either an IEP or 504 for two years now and they keep trying to tell me that CAPD is not a learning disability.

His teachers are not accommodating and have deemed him lazy despite recent CAPD and Speech & Language evaluations. Despite his testing, his lack of organizational skills, his lack of improvement on NYS Assessment testing, and his continual drop in grades, his school refuses to acknowledge his disability, claiming he does not have one. HELP!

Kelly

Dear Kelly,

You report that your child has been diagnosed with sensory integration dysfunction, central auditory processing disorder, organizational skills problems and difficulties in state testing and his own grades over a number of years. Despite this, your school system has refused to provide him with an IEP or 504 plan on the grounds that CAPD is not a learning disability. Over the history of the special education law, there has been considerable confusion and disagreement as to the circumstances under which a student qualifies for a learning disability.

The IDEA criterion for learning disability is defined as:



". . . 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 do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia."

However, learning disabilities do 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." 34 Code of Federal Regulations §300.7(c)(10)



Although the IDEA does not specifically reference a central auditory processing disorder, it also does not explicitly exclude the clinical condition of central auditory processing disorder from the processing disorders which could qualify a student for LD. In addition, section 504, which does not use categorical disabilities for eligibility, provides for eligibility if the student has a physical or mental impairment which substantially limits learning.

If your clinical data supports the adverse impact of the central auditory processing disorder or the sensory integration dysfunction on your child's functioning at school, it would appear that there would be grounds for eligibility under Section 504 as well.

What is a school required to do for a child who has a 504 plan?

What services is the school required to make under the 504 plan when a child is diagnosed with ADHD? My child is in first grade and was diagnosed with ADHD nearly two years ago. Even though he had an IEP in the preschool program, once he started kindergarten, the school said that he no longer qualified for the IEP.

However, he qualified for the 504 plan. Even though I keep in constant contact with the teachers about his progress, I have yet to see anything in writing as far as to the accommodations they are making for his ADHD.

Carol

Dear Carol,

The requirements for a Section 504 plan are contained in the Federal Regulations at 34 Code of Federal Regulation 104. If the student is made eligible for a 504 plan by his school district, based on ADHD, the school district is required to develop and individualized plan which provides services and accommodations which address his specific needs.

Your question indicates that he was previously eligible for an IEP. The decision to terminate the IEP should have been made by the IEP team based on an evaluation determining that he no longer had a disability which required special education and related services.

A decision to automatically disqualify a student from IDEA eligibility when they enter kindergarten would be inappropriate as the basis for a change in eligibility. The Section 504 plan should be developed with your participation and should be in writing. You have a right to ask for changes in the Section 504 plan and to seek information about whether the Section 504 plan is being implemented.

It would also be wise to seek a copy of your school district's Section 504 policy in order to fully understand what the procedures are in the school district for determining eligibility for a 504 plan, developing a 504 plan, implementing, revising and/or terminating a 504 plan. Once you are aware of the school district's policy in relation to Section 504 plans, it will be easier to assess how to best determine if the school is meeting its obligations. In addition, whatever the school district's Section 504 policy says, it must comply with the requirements of the Federal regulations referenced above.

Can a parent require the school to move their child from a special education class into a regular class?

I have a student on an IEP. His mother does not want him in an separate class for teaching IEP students for reading. She wants him in a regular education class. My district, at the junior high level, has them in a separate special education class for the goal areas so they can receive their specially designed instruction.

Can a parent sign a child out of special education before the next evaluation is due, or can they insist that the student be in a regular ed class and not in an IEP/special ed class?

Dear Elizabeth,

Your question addresses the desire of a parent for their child to be educated in a regular education classroom, rather than a separate class for reading. You indicated that your school district has special education classes to address content areas for specially designed instruction.

With respect to your question, a parent may not unilaterally sign their child out of special education, without the agreement of the IEP team, unless they withdraw their child from school or are successful in persuading a hearing officer that their child does not require special education. Similarly, a parent can not unilaterally insist that the child should be in a regular class, rather than in a special education class.

On the other hand, the decision as to whether a child requires education in a special classroom or have their education needs adequately met in a regular education classroom, including with the provision of supplemental aides and support, is an individualized decision. A school district policy that provided that instructional services could only be provided in a special classroom, rather than in regular education classes with support would also be inconsistent with the IDEA.

Decisions as to the level of intensity or restrictiveness that a child requires in order to be able to be appropriately educated is an individualized determination, in which the child should be educated in the least restrictive environment appropriate in order to meet their needs. It is neither the parent's absolute right to have the child educated in regular education nor is it the school districts prerogative to have the child automatically educated in special education.

Can the school system have a policy which denies IEPs to students who have behavioral rather than academic problems?

What is the legality/appropriateness of placing a child with a 504 plan, based on behavioral issues, into a self-contained special education classroom for students with emotional/behavioral struggles? My school district believes that if a student has behavioral problems, but does not have any intellectual deficits/discrepancies, they do not qualify for an IEP.

These children are placed on 504 plans, and when they are not successful in the general education setting, they place them in a special education setting without an IEP. Thank you for your time and assistance.

Sincerely,
Justin

Dear Justin,

You seek information as to the legality of a school district policy that if a student cannot qualify for an IEP without displaying intellectual deficits or discrepancies even though they display emotional or behavioral problems. Further, you question whether it is legal for a student with a 504 plan based on those behavioral issues to be placed in a self contained class with children with behavior disorders.

At the outset, the IDEA is clear that children with emotional disturbances and behavior disorders are eligible for special education if those disorders adversely affect their educational performance, without regard to the presence of intellectual deficit or discrepancies in relation to achievement. Indeed, the criteria for emotional disturbance under the IDEA are heavily weighted in relation to behavior, rather than in relation to academic performance.

Further, amendments to the IDEA in 2004 indicated that schools must evaluate and develop programming for students based on academic, developmental and functional problems, which would incorporate emotional and behavioral issues as well as intellectual and academic problems. Thus, a school policy which precludes IDEA eligibility based on the absence of an intellectual or academic deficit would be overly restrictive in relation to the provisions for eligibility under IDEA.

At the same time, the student may qualify for protection, including educational and related services, based on a section 504 plan. Thus, a student with a disability qualifies for a section 504 plan and could be entitled to specialized instruction and related services. However, the IDEA expressly prohibits a student from being placed in special education without full informed parental consent at the outset.

If a child is being placed in a self-contained special education classroom, based on a 504 plan rather than IDEA eligibility, it would be a strong argument that the student is being effectively placed into special education, even if not officially placed into special education. Further, this placement is apparently taking place without informed parental consent, which would violate the requirements of IDEA.

Must the school district provide an alternative home teacher if we fire one we think is incompetent?

If a school district has failed to supply home services as indicated on an IEP, what recourse do the parents have. Our child's home teacher was fired by the district as they say was for "personal reasons." This was extraordinary and our child made significant progress. The second teacher that came was incompetent and we fired her. Since then, six months later, no teacher has been sent and our child has suffered significantly. We have paid out of pocket for services the school was supposed to provide. Please help!

If your child has an IEP calling for home services, or any other specific educational or related service, which the school fails to provide for a significant period of time, sufficient to cause a disruption or meaningful interruption in the child's ability to make progress in their education, the school system may be responsible for what are called "compensatory educational services." Typically, the school will not volunteer to provide such compensatory services, but will only do so if the parent initiates mediation, a due process hearing, or an administrative complaint with the state department of education.

However, brief interruptions of service akin to those that would occur for a child in regular education if the teacher were temporarily ill are typically not a sufficient basis for compensatory education. Notably, however, the school district offered you an alternative provider after the initial provider was terminated by the school district. You made the choice to refuse the services of this second provider. As such, the school may argue that it was your decision to discontinue services, rather than theirs, which would provide them a basis for avoiding responsibility for compensatory services.

Is the school mandated send progress updates to parents and if so, what is required?

We live in the Chicago area. My son is in third grade. He has had an IEP at his current school for four years. The IEP form that our school uses includes a section for quarterly progress updates for his various educational goals. Is the school required by law to send us progress updates on a quarterly basis for all of his IEP goals, and if so when are they required to do so? We currently receive updates on some goals (not all) but these updates are not consistent across all the different goals that are listed on his IEP.

If they are not required to send us regular updates, can we request formal updates on his progress as part of the IEP? Also, is the school required to have all educational goals prepared and sent to parents within in a certain period of time prior to an IEP meeting. We often receive final IEP papers only one or two days prior to the actual meeting which makes it challenging to prepare and review the documentation adequately prior to the IEP meeting.

Thank you,

Colin

Dear Colin,

Your question addresses whether you should be receiving quarterly progress updates with respect to your child’s progress in relation to his annual goals. The IDEA requires that the school district provide the parents with regular updates on the child’s progress in a manner and form consistent with that of regular education, such as on a quarterly basis similar to the quarterly report cards that the school would provide in regular education. In addition, if the parents and school agree to include in the IEP additional forms of information sharing or reporting, the school must then carry out those additional requirements as well.

It is not unusual for an IEP to provide for a weekly email to a parent, a notebook to be sent back and forth between the parents and the school on a daily basis with information from teachers and parents provided as needed, provision of periodic progress reports of greater frequency than those provided for other students if there are particular reasons that the child’s progress needs to be monitored on a more regular basis, or even a provision for periodic meetings during the course of the school year in order to actually discuss how the child is doing.

On the other hand, you also question the school districts provision of IEP papers one or two days prior to the IEP meeting. In fact, the school is not required to provide any documentation in relation to the IEP prior to the meeting, unless you submit a formal request for records prior to the meeting and the paperwork already exists.

It would appear that the school is providing you with a draft IEP. Importantly, the information they are sharing with you ahead of time must be in a draft and subject to modification at the IEP meeting. If they are presenting you with a “final” IEP paper and is not subject to modification at the meeting, they would be potentially guilty of conducting an IEP meeting in which the IEP was predetermined without parental input. Advanced notice, including receipt of the draft set of goals, objectives or services, is desirable even if it is only occurring several days before the meeting.

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.

(February 2011)

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.

(February 2011)

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.

(February 2011)

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.

(February 2011)

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.

(February 2011)

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.

(February 2011)

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.

(February 2011)

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.

(February 2011)

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.

(February 2011)

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.

(February 2011)

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.

(February 2011)

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.

(February 2011)

Can schools consider academic performance when evaluating a child's special education status?

My 16-year-old daughter has had sensory processing disorder for many years but was recently reevaluated for that and also diagnosed with auditory processing disorders and ADHD. We have had team meetings with her teachers, counselor, and the school psychologist, but the school has denied us either a 504 or an IEP because they believe she is doing too well academically to need them. I know that IDEA requires that students be below grade level to some degree, but I thought that section 504 applied even if a student was succeeding in school. I also thought that impairment in hearing and concentrating (ADHD) counted as disabilities under section 504. Shouldn't she be able to receive accommodations from the school district for her disabilities even if she's doing well academically?

You are partly correct in relation to each point, but also partly wrong in relation to each. See some of my prior answers in other months about the differing eligibility standards for special education and Section 504 plans. Academic problems are not the only basis for eligibility under either law. A student could be doing well academically under either and still be eligible under either, due to problems with social skills, behavior, organizational skills, or other issues. However, both laws require that the problem have a significant impact on the child's functioning. Each also requires that the student needs some form of intervention to address the disability and its impact. The difference is that to be eligible for special ed (an IEP), the student must require some form of special education instruction, whereas to be eligible for a Section 504 plan, a student can be eligible based solely on the need for related services or accommodations.

(September 2010)

A special-education teacher made a hurtful comment about my daughter's potential. Could this be considered discrimination?

I have a daughter in 7th grade receiving special education services. She came home today telling me that her teacher told her that she will have to go to a two-year school instead of a four-year college. She was very upset and is now thinking that it must be a horrible thing to be in special ed. I think that this is discrimination on the teacher's part and am wondering what kind of action can be taken against this teacher who is "predetermining" what my daughter will and will not be capable of when it comes to college and her future.

Sadly, adults often say things that are inappropriate or damaging to children, whether related to their disability or otherwise. It was wrong for the teacher to say what was said, but it doesn't really constitute discrimination. The teacher has no power to make that decision nor the ability to competently predict that outcome so far into the future. You are correct that schools can not "predetermine" a child's placement prior to an IEP meeting, but the comment she made, however inappropriate, doesn't represent a decision by the IEP team, nor is it appropriate to "determine" that when the child is only in 7th grade. At most, such issues, which can and should be addressed through the transition planning component of the IEP process, only represent some assessment of possible or likely activities after graduation. They are not final decisions that can not be modified. In fact, such decisions require input from you and the child and should be reviewed and adjusted on an annual basis until the student graduates or ages out of eligibility for services.

I would bring the comment to the attention of appropriate supervisory staff at the school and seek some means to have the staff correct this statement and for your daughter to feel that her options have not been predetermined. If the staff is not willing to do this, you may need to work on this on your own or with the help of some mental health professional knowledgeable about the special education process.

(September 2010)

How would changing from an IEP to a 504 plan affect my child?

My son was diagnosed with PDD-NOS (Pervasive Developmental Disorder — Not Otherwise Specified) when he was 5. He is now 8 and has been re-diagnosed with ADHD/ODD (oppositional defiant disorder). The school keeps telling us that his IEP is no longer valid because he does not "need" a specialized program since all of his accommodations can fall under a 504 plan. We've had a bit of a contentious relationship with this school, and things that we have asked for (e.g., an FBA-functional behavioral assessment) have not been done. The school keeps pushing for a 504, but I am worried that going to a 504 will eliminate, or limit, our rights to request special accommodations. I don't know if a 504 plan could be adequately individualized for my son. I'm wondering what my rights are in this situation and wondering what steps I should take to keep my child on their IEP.

First, there are many situations where a student may qualify for either an IEP or a Section 504 plan. The decision as to which should be used should be made on an individualized basis. Further, often, children with PDD-NOS and/or ADHD do need an IEP, even if much of the intervention is based on accommodations. Certainly, children with these diagnoses have skills deficits that need remediation, justifying having goals, objectives and specific strategies or interventions to assist them in developing these skills. While schools may use the IEP format to write a 504 plan, most schools do not do so. Rather, their 504 plans are often focused on accommodations and not on plans for how the child will develop needed skills and how the child's progress will be monitored.

If your child is already on an IEP, the school must convene a meeting to decide to terminate special education eligibility. If you request a due process hearing immediately after this decision, the school must maintain your child's eligibility and previously provided services until the issue is resolved.

(September 2010)

Can a school legally change any part of an IEP without parental consent?

We had an IEP for a 6-year-old child who had not yet attended kindergarten. The child was found eligible for special education services, and we held an IEP meeting. During the meeting, it was determined by all professionals on the team that the child should be enrolled in kindergarten with an aid, despite his age. The parents were not given an IEP report but were told to come in to school the next day to enroll the child in kindergarten. Parents were given an IEP the next day, but it did not mention grade placement. Subsequently, the parents were told that the child could not be enrolled in kindergarten because he was 6 years old and had to enroll in first grade, regardless of his "special circumstances".

I'm wondering… is there a way the school can change the determination of the IEP without the parents, without breaking the law? And is there any precedent in past cases of a 6 year old being placed in kindergarten rather than 1st grade?

First, generally, the issue of promotion and grade level placement is not automatically viewed as an IEP issue by most school districts. You should check your state's laws to see if it addresses minimum/maximum ages for participation in kindergarten and enrollment in first grade. Sometimes, this issue is addressed in district policy, rather than state law. If this is the case, the IEP more clearly supercedes any limiting policy. In your situation, the problem is further complicated because the staff apparently supported placement in kindergarten, but the person writing the IEP document didn't write that in it.

Although it is legally permissible to change any IEP outside of the IEP meeting, this can only be done in writing and with mutual consent of the parents and the school staff. However, because the grade level issue was not written into the IEP, the school administration will likely take the position that it is an administrative issue and wasn't even addressed in the IEP. It would be helpful for you if the participating staff is willing to confirm that they agreed that the child should be in kindergarten, but it may be difficult to get that documented in writing. In all likelihood, the parents will need knowledgeable legal help to assess the situation and determine their legal position. In either event, getting documentation of what the team actually agreed to, versus what was written subsequently, would be very important.

(September 2010)

Our school district has decided to discontinue services for our 18-year-old daughter. What steps can I take in challenging this decision?

I have an 18-year-old daughter who has been placed by our district in a private school for children with learning disabilities for the last six years. She has complex learning disabilities, emotional disabilities, and other health impairments. She will not be receiving a diploma at the graduation ceremonies, and so we are looking to the district to continue support at a post secondary school. The district feels does not want to do that. However, the rest of the IEP team, including her private counselor and psychiatrist, do not agree.

We have put in a written letter that we do not agree with the district decision. What can I do if the district does not want to pay for a post secondary residential school placement, but the rest of the team feels it is necessary and appropriate?

First, while all participants in the IEP team meetings are theoretically part of the IEP team, the school staff controls the decision of the district. If the parents and their outside consultants disagree, this should be documented. While your letter serves as documentation, in most states it does not have any legal impact in forcing the school to do what you want. However, the parents' recourse is to request a due process hearing to challenge the school's decision. If the post- secondary school is a special education program approved to provide ongoing services to students in need of continuing special education services, there will be a greater chance of getting funding from the school or a hearing officer. If the school is a regular post- secondary school, it is very difficult to get public school funding for such placements.

You should also be aware that if your student accepts the regular education diploma for high school, the school district's responsibilities are terminated in most states. The only ways to maintain school district responsibility under these circumstances, assuming they are not willing to delay graduation, are 1) to request a due process hearing prior to graduation. This generally has the effect of blocking the graduation until the administrative hearing process is concluded; or 2) pursue compensatory services after graduation. However, this will generally require a due process hearing as well. You should seek help from a knowledgeable special education attorney to assess your position.

(September 2010)

Our son will be entering a new school system, and we want to make sure he recieves special education services immediately. Is there a way to arrange this before he starts school?

Our son, who is now about 13 years old, is not progressing in school. We think he has a learning disability but have been unable to obtain any educational testing or assessment data from psychologists. We currently live with our son and other children in Pakistan and have found that there is not a system for working with children with LD here. However, our son is a U.S. citizen, so we are planning to have him move back to the states with family.

We are wondering how we get the initial referral to begin the special education process at his new school if he does not yet live in the U.S. Is this possible?

When a child is entering a new school system, the parents or guardian may immediately request an evaluation for special education. However, the public school is not automatically required to conduct an evaluation. The more information that can be provided to the school to support the need for the evaluation, the more likely they are to agree to the evaluation. This is especially important in situations such as yours, as schools are not as likely to conduct an evaluation when there is no prior history of difficulty in an American public school.

One important step to improve the likelihood that the school will agree to an evaluation is to obtain a comprehensive independent evaluation to document your child's problems. The school is required to consider this evaluation but is not required to accept its findings. As a result of the new requirement that schools consider whether inadequate instruction may be the cause of the learning problem, schools are now far more likely to defer evaluation until after the student has received a period of intensive specialized intervention in regular education (Response to Intervention — RTI). This makes it harder to secure immediate evaluation in situations such as yours and makes any evidence of prior problems and unsuccessful efforts to address these problems especially important.

(September 2010)

Are there legal resources for individuals with disabilities who run into trouble with the law?

My 18 year old son has recently run into trouble with the law. I am having a hard time getting his attorney to understand that his ADHD and learning disabilities make him vulnerable to "talking without thinking." His issues with concentrating, focusing, and his impulsiveness also make things more difficult. I would like to find someone to work with my son who understands his disability and its impact on the situations he has gotten himself into. Are there legal resources for individuals with disabilities who run into trouble with the law?

Unfortunately, many criminal lawyers are not very familiar with disabilities and their impact on behavior. It would be especially hard to find an attorney with expertise in ADHD and LD. It is also important to know that, while state laws vary, unless a defendant lacks the mental capacity to understand right from wrong or to control their behavior due to insanity or severe cognitive disabilities, disabilities such as ADHD may not be a legal defense for the action but may be relevant as a mitigating factor in determination of the sentence.

To find a knowledgeable criminal lawyer, you may be able to get assistance from the local Bar Association or get referrals from the local public defender's office. If you are already involved with clinicians working with your son that are knowledgeable about ADHD, you might try to arrange for the clinicians to consult with the attorney. The clinicians may also be familiar with attorneys that they have worked with before that are already familiar with ADHD.

(September 2010)

My daughter receives accommodations for ADHD, but doesn't have a formal 504 plan. What can I do to make sure she gets this documentation?

My 12-year-old daughter was diagnosed with ADD. She had a 504 last year, and it was the best year she's ever had. When she changed to middle school this year, they pulled her 504, saying that she has only "time management" issues that don't prevent her from achieving good grades. However, she does have misfiled papers everywhere, has forgotten deadlines, and has hours of homework. She has had to quit everything afterschool and has no extracurricular life. She comes home, does homework for 4-5 hours, eats and goes to bed every week night. She is getting depressed and now hates school.

The principal has said that she can just "limit herself" to a half hour per subject and take the grade she gets. I think she needs her 504 back. Is she being unfairly denied it because she can achieve good grades? They are already giving her extra time on projects and tests, overlooking her late assignments, and reminding her repeatedly to stay on task. Shouldn't this be formalized in a 504? Help!

Your question concerns whether your child with ADHD should remain eligible for a Section 504 plan. First, it is inappropriate for a school to use passing grades as the primary or sole measure of whether a student's disability is substantially limiting life functions at school. While learning is the most obvious school related life function, working, thinking, and concentrating are also specifically identified as life functions under the Americans with Disabilities Act and Section 504.

As a result, your child should be assessed based on how her ADHD is impacting her functioning at school in a variety of ways, including but not limited to grades. In addition, it appears that both you and the school are providing her with various formal or informal accommodations. Under recent amendments to the ADA, the institution is not permitted to deny eligibility based on the person's performance if their performance is dependent on the provision or use of mitigating measures, such as some of the accommodations you described. In other words, the decision about whether she has a disability must be based on how she would perform without these measures, rather than with the extra support.

You should also carefully document all the ways that her disability is affecting her, including those you describe in your question, as homework is also a school-related activity. If her difficulty with homework is disrupting her life, that is also a factor in determining whether her disability is substantially limiting major life activities.

(August 2010)


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