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Special Education

The following are past questions and answers from Matt Cohen on this topic.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 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 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.

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.

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.

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.

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.

Does a child have a right to a private classroom aid?

My son has ADHD, PDD-NOS, he is now in 2nd grade. Last year, he was in a mainstream education class with pull out for math and reading. Due to his inattention and behaviors in his afternoon class, they put him in a self-contained class this year for more one-on-one. I feel he is being held back. He is grade appropriate for learning just lack of attention and focus.

Is it his right through IDEA to recieve a private classroom aide to asst him, instead of being secluded in self contained? Or is this a personal decision made by the school as to whether or not they will provide it?

Sandy

Dear Sandy,

Your question relates to whether your child has a right to a one-to-one aide to assist him in the classroom as an alternative to being placed in a self-contained classroom. Under the IDEA, the decision about whether a child should receive an aide in order to be educated in the least restrictive environment is an individualized decision made by the IEP team with the participation of the parents, as are all other decisions about special education placement and related services.

If it can be shown that the student can function successfully in the regular classroom with the provision of an aide, whether one-to-one or a classroom aide, there would be a basis for the school to provide this service. If they refuse to do so and the parent can prove that the child does require the aide in order to function in the regular ed classroom, but can do so with the aide, this could be a basis for a due process hearing. The parent should consult with a knowledgeable special education advocate or attorney to determine whether there is sufficient documentation to support this position.

Conversely, it should be clear that the child does not have a right to a one-to-one aide for their child in a regular ed classroom just because they prefer that setting. If the IEP team is able to demonstrate that placement in a self-contained classroom is educationally necessary and the least restrictive environment to meet the child's needs, they may make that decision.

In a due process hearing, if they are able to successfully defend that position, the desire for an aide would not be upheld. Again, this is a child and fact specific assessment. In order for you to assess whether you have a sufficient basis to prove the need for an aide in regular education, you should consult with a knowledgeable advocate or attorney.

Can I get the school system to pay for a private school that specializes in learning disabilities?

Dear Mr. Cohen - If my child is disagnosed with an IEP and I want to send him to a specific private school that specialzlies in learning disabilities, is there any federal or state funding that I could apply for? We live in New York State. My research has not been successful thus far!

Thanks

Tom's Mom

Dear Tom's Mom,

Under the IDEA, a school district is required to provide a continuum of program options for children with disabilities, ranging from services for the child to support them within the regular classroom up to and including placement in approved special education residential treatment centers. Included within the continuum of options are private schools that are especially credentialed by the states to provide services to children with disabilities in specified or approved areas. While parents may prefer for a child to receive his or her education in a specialized, private school or may feel that a particular school provides superior services to that of the public school, there is no entitlement to private school education simply based on parental preference. The only exception to this general rule is in those states, such as Florida, which have a voucher system to pay for private school services for children who are eligible for special education.

When the IEP team, with the participation of the parent, determines that the public school system is unable to meet the child’s needs and can not provide the child a free appropriate public education in a less restrictive environment, the IEP team may consider placing the child at an approved private special education school. Where the IEP team decides that this is necessary, tuition and transportation expense for the private school must be paid for by the school system. Generally, school districts are reimbursed some of the expense for these private school placements. If the school concludes that the child does not require placement in a specialized private school, because the public school is able to meet the child’s needs, the parent has the right to request a special education due process hearing for the purpose of challenging that determination. However, in order to prevail in such a due process hearing, the parent would need to show that the school system is unable to provide the child with a free appropriate public education, that the private program is the least restrictive environment for the child, and that the private school is able to provide the child with an appropriate education. One wrinkle with respect to these rules involves situations where the parent makes “unilateral” placement in a private school.

If the parent provides the school with written notice at least 10 business days prior to enrolling the student in the private school, advises the public school of the intention to enroll in the private school at an IEP meeting proceeding the enrollment or can demonstrate that there is a genuine emergency requiring immediate placement in a private school, the parent may pursue reimbursement from the public school even after having made the unilateral placement. However, where the parents make such unilateral placement, they do so at their own financial risk, as there is no assurance that the hearing officer or court will ultimately agree that the school district was not providing an appropriate education and that the placement in the private school was appropriate.

In addition to the funding available through the special education system, states typically have funding available through their Department of Human Services and, for children who are wards of the state or adopted, through the Child Welfare Department. Rules with respect to eligibility for these funding streams vary from state to state and by disability. It would be necessary to research funding available through the Human Services Department or the Child Welfare Agency in order to determine whether funding would be available for these types of placements. Typically, funding would not be available for children with learning disabilities, as the funding through Human Services or Child Welfare generally is available only for children with severe to profound disabilities.

Who does the school system consider the legal guardian of a foster child?

If a foster child is receiving special education services at school who is recognized as their "legal guardian" -- Social Services or their foster parents? If it is not the foster parent, who is responsible for communicating, updating, signing consent forms, etc.?

Your question addresses who is recognized as the legal guardian for a foster child receiving special services at school. Unfortunately, state law varies with respect to who has decision making authority with respect to children who are wards of the state. Further, the rights of the state, the foster parent, and the biological parent are often determined on a case by case basis.

Under some circumstance, the biological parent may retain decision making authority while in other instances, the state may have the decision making authority. Under the IDEA, there is a procedure for the appointment of the surrogate parent to serve on behalf of the child when the biological or adoptive parent is not available or capable of acting on behalf of the child. Often, foster parents are appointed as surrogate parents in order to serve in this capacity. You would need to check your state’s rules regarding wards of the state in your states special education regulations in order to obtain specific information in your state.

What do you do if your child is "stuck" in a segregated special education class?

Can I remove my son from a self-contained class if it’s not helping? He has been there for two years. My seven-year of boy has ADHD, Cystic fibrosis, and a speech delay. They tell me he is slow, but I can get him to do math and his colors and things a Kindergartener should know, just not read.

They think because he is sick he doesn't need to learn. His teacher let us know there was no need for him to learn because he may die before he sees a job. They alone have him in that class because of his medication and there is a nurse in there. I would like him to be in a real class with help in problem areas. He wants to learn and can if they would try.

Dear Anna,

Under the IDEA, you can request an IEP meeting to consider a change in placement. Options could include a regular education program with support or a more appropriate special education program. In either case, your child has a right to a program that includes access to the general curriculum to the extent possible (20 U.S.C. § 1412 (a)(5)(A)), IEPs that provide for meaningful benefit, Ridgewood Board of Educ. v. N.E., 172 F.3d 283, 247 (3d Cir. 1999), and a program that is based on peer reviewed research (that works!) 34 C.F.R. § 300.320 (a)(4); 34 C.F.R. § 300.35.

The teachers comments are not only inhumane, but reflect a position that is contrary to the law. Your son has a right to an appropriate education. His health condition, coupled with his lack of progress, should lead to further evaluation to determine why he is not making progress, rather than a conclusion that he can’t be helped or doesn’t deserve to be helped. You should consider asking for a new evaluation. You should also consider seeking help from a parent training center or a protection and advocacy office or other advocacy group concerning the teacher’s comments and position, and seek help from your states Department of Education Special Education office.

Your son not only wants and needs to learn, he has a right to learn.

How does "inclusion" apply to a private school that has a large number of children with disabilities?

I am a Certified Occupational Therapy Assistant and I have recently began working in a private school with special need kids ages three to nine with various disabilities. There is some controversy over how inclusion translates in to a private setting versus a public setting.

There are a few people who want to mix verbal and non-verbal, physically handicapped and mentally handicapped, medically stable with medically fragile students all into the same classrooms, with no regard to the quality of the education of the individual child. This is a new area of practice for me.

Some people cite the law one way and others site it in another way. I would like for you to explain how inclusion should be applied in a private school setting, what it the criteria for a classroom setting and any other resources I can utilize to help me better understand how this will work.

Please get back to me ASAP I am trying to do the best for the children I work with because I feel each child regardless of their disability, should be given what they need to be able to have a good quality of life.

Your question addresses the issues surrounding inclusion of children with disabilities in a private school. At the outset, it is hard to answer your question without more information about the nature of the school and how it’s funded. If the school is receiving public special education funding for the students, it is governed by all of the IDEA special education laws and the other federal disability rights statutes.

On the other hand, if it is receiving non-special ed federal funding, it may be governed by Section 504, but would not be governed by the IDEA special education laws. Finally, and to add to the confusion, if it doesn’t receive any federal funding, it would not be covered by either IDEA or Section 504. However, unless it is religiously controlled, it would be covered by the Americans with Disabilities Act (ADA).

Somewhat different rules apply under each of these laws. However, even in relation to public schools, none of the laws require “inclusion”. Rather, all require placement in the least restrictive environment appropriate for the child’s needs, though the rules interpreting this statement are somewhat different depending on the statute.

In any event, “inclusion”, which is an educational concept, embraces the notion of “natural proportions”, which means that regular classrooms or programs should include children with disabilities in proportion to their prevalence in the general population.

Disproportionate placement of students with disabilities in regular class creates excess strains on the education of all the children, as well as the staff, and defeats some of the goals of inclusion, which relate to the opportunity for participation with typically developing peers in typical environments, but with appropriate support.

If the school is governed by either IDEA or Section 504, both laws require that each child receive a free appropriate public education (FAPE).If the programs structure precludes the ability to provide FAPE, then there is reason to challenge whether the child’s (children’s) need(s) is/are being met.

When must the public school pay for tuition to allow a child to go to a private school?

My 13-year-old son was diagnosed three years ago with both ADHD and depression. He is currently on medications and is doing much better in school. However, he is in parochial school, not public school, as the Washington, D.C. school system has class sizes much too large and too many disciplinary problems to meet his needs. We are considering sending him to a boarding school next year for high school that has very small class sizes and individualized attention to assure that he is able to excel as he is extremely intelligent.

Question - would the public school system provide assistance with tuition for him due to his "disabilities"? How do we proceed? The school is extremely expensive and we pay very high taxes to D.C. Our son has only attended the public school system for one year of his nine years in school. Are there funding sources that we should be aware of to assist us in paying the tuition for a Boarding School?

Thank you.

Dear Ivana:

Your question is whether it is possible to obtain funding from the public school for a placement in a private therapeutic boarding school when the child has not been enrolled in the public school in the past. Although funding under these circumstances is difficult, it is not impossible. There are a number of steps that generally need to be taken in order for there to be a possibility of public funding.

First, well ahead of the enrollment in the private therapeutic school, it is important to approach the public school and reenroll your student as an enrolled non-attending student. Some schools will be resistant to allowing this status. Even if they are, indicate that you are a resident of the district, that you have a child with disabilities that requires special education services and that you are requesting an evaluation from the public school.

After any oral contact, put this request in writing. Obtain copies of any reports, clinical evaluations or other material that support why your child requires placement in the private school. This should generally include up-to-date clinical evaluations that provide current information on your child’s functioning and recommendations for the nature, intensity and type of special education and related services they require, including the need for specialized placement. If the clinicians support specialized placement, they must explain why the recommendations they are making are educationally necessary, even though the public school has not had prior experience with the child.

This information should all be presented to the school district in advance of an IEP meeting to determine placement. Under limited circumstances, the school district may recognize the severity of the child’s needs and agree to pay for residential treatment. Alternatively, they may disagree that residential treatment is needed, but agree to pay for the tuition component of the placement. If they refuse to pay altogether, your recourse would be to request a due process hearing.

Such requests should typically be accompanied by a request for mediation, to determine if there is any ground for negotiating some middle ground. In either event, such requests should be preceded by consultation with a knowledgeable special education attorney to assess whether you and the school have taken the right steps, to assess your chances, and to determine if it is financially wise for you to pursue the school district.

In some instances, families decide that they need to make a private placement without having first approached the school district for assistance. This is called a unilateral placement. If you intend to make a unilateral placement, the law requires that you give the school district written notice ten business days in advance of the placement, indicating that you intend to make the placement, that you intend to do so because you believe the public school cannot meet your child’s needs and that you wish for the public school to pay for the placement. Giving this notice does not obligate the district to pay, but failing to give them the notice may relieve them of responsibility for paying.

The IDEA provides exceptions to this rule if you provide a similar notice at an IEP meeting prior to implementing the private placement or if there is a bona fide emergency which required emergency placement without sufficient time to give the school the legal notice normally required. If you are making an emergency placement, you should make sure to consult with a psychiatrist to confirm the severity of the emergency and to allow for documentation of the emergency need for placement, so as to have a basis documentation of why you were unable to provide the written notice and to make sure that a true emergency existed.

In any of these situations, the possibility of school funding is far more difficult than when a child has been in the public schools, as there is no obvious basis to demonstrate that the public school’s programs have been tried and failed. Further, because residential placement is the most restrictive placement, the public school’s inability to try less restrictive options will be used as an argument by the school district for why they should not be held responsible for the placement.

How does a parent get accommodations when the school says their child is performing adequately, but the child seems to be performing below their potential?

My son was tested and diagnosed by a clinical psychologist as having ADHD. I was also told that he has high to superior intelligence. Over the last three years, I have noticed a decline and lack of improvement in his reading comprehension and spelling. He struggles to read while he gets A’s in math.

I went to the school and requested a meeting to discuss the problems he is facing. I left the meeting with nothing concrete, only the discussion of accommodations - which they have agreed to and seem to be implementing so far. But I am concerned that I was told over and over that he is 'average' or barely below for comprehension and spelling so there is nothing they can do – that he has to be at least 2 grade levels behind for a specific plan.

Don’t the "superior intelligence" and the "barely average" testing scores mean a significant discrepancy in functioning and shouldn’t that fall under the section 504 plan? If he’s getting A’s in math and barely C’s in reading but has superior intelligence, isn’t there cause for concern? Maybe I am just looking too much into this, but I am confused and I don’t know if we have enough to qualify for section 504. Any help is greatly appreciated.

Thanks,
Stacy

Your question addresses the frequent problem of a child who is bright and working below potential, but at an adequate level according to the school district. Under IDEA 2004, there is a new emphasis on functional and developmental performance as well as academic performance, both in relation to evaluation and programming.

Therefore, it is important for you to identify and secure documentation of the ways that your child’s functioning at school is impaired. As much as possible, it is necessary to document that the child is functioning below average in comparison to his/her peers, not just below his/her own potential. (There is some interpretation that allows for comparison just to one’s own potential, but this is a more difficult argument).

In some instances, the general testing the school has done may wash out areas where your child is actually functioning below average. Further analysis of the school’s testing and/or private testing that goes into greater detail may be necessary, as the school’s data may not fully reveal the extent of your child’s difficulties.

For example, if the child has been tested to have adequate overall reading, but specialized reading tests have not been administered that break out the component parts of reading, a particular area of difficulty may be missed in which the child actually is functioning below the average range.

Can the school keep a child on Response to Intervention if the parent thinks she needs to be evaluated for a learning disability?

My daughter is 9 years old. She has been diagnosed dyslexic and ADHD. She is learning disabled in reading and almost in math. My school will not evaluate her. The reading specialist says she is reading at a third grade level. Both specialists that tested her said she is at a second grade level. My school is making us go through the response to intervention program. The school psychologist said they have to do this first by law. I read them the law that stated they shall but not may do RTI. It went over their heads. My principal told me off the record that my educational specialist was spinning the numbers. My response was. "well, what about the neuropsychological evaluation?" Her response was, "if you go looking for something you'll find it." My daughters overall Terra Nova score was 25. Her spelling was 9, reading was 11. The educational specialist recommends the Wilson reading program. My school doesn't offer this. This is heart breaking to watch your child cry when trying to do homework. My oldest son also has ADHD. I had no problem getting him an IEP. My principal told me my daughter wasn't that poor of a student. My daughter and I spend hours many nights doing homework. Now the psychologist, principal and reading specialist are pulling her out more to work with her. They think she needs to practice reading more. My daughter has been in a special reading group sense first grade and tutored outside of school since first grade. Holly's grades are because of my help and hours of studying. Do I have to continue RTI?

Schools are not supposed to keep children in an RTI mode indefinitely. If the child is making progress, they should ultimately be able, based on that progress to return to the regular program. If they are not making progress in a reasonable period of time, the school should refer the child for evaluation to determine if they are eligible for special education. Under the IDEA 2006 regulations, a child may be considered for eligibility under LD if:

(1) the child does not achieve adequately for the child's age or to meet State-approved grade level standards in one or more of the following areas when provided with learning experiences and instruction appropriate for the child's age or State-approved grade level standards: (i) Oral expression; (ii) Listening comprehension; (iii) Written expression; (iv) Basic Reading skills; (v) Reading fluency skills; (vi) Reading comprehension; (vii) Mathematics calculation; or (viii) Mathematics problem solving.

(2) (i) The child does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in paragraph (a)(1) of this section when using a process based on the child's response to scientific, research based intervention; or (ii) The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments, consistent with Secs. 300.304 and 300.305;

(3) the group determines that its findings under paragraphs (a)(1) and (2) of this section are not primarily the result of (i) a visual, hearing, or motor disability; (ii) Mental retardation; (iii) Emotional Disturbance; (iv) cultural factors, (v) Economic disadvantage; or (vi) Limited English Proficiency. 34 CFR 300.309.

Obviously, in order to make these decisions, the school district would have to actually conduct an evaluation. In addition, the federal regulations clearly provide that a child should be considered for evaluation for special education either if a) they have not made adequate progress after an appropriate period of time when provided with scientific, research based intervention, or "whenever a child is referred for an evaluation." 34 CFR 300.309 (c)(2). While a school may choose not to evaluate a child in response to a parent's written request for evaluation, they must give the parent written notice of the decision not to conduct the evaluation, the reason for the refusal of the evaluation, and the parent's right to request a due process hearing to challenge the refusal of the evaluation by requesting a due process hearing. 34 CFR 300.503 (a) They may not simply ignore the parents' request or insist on continuing to provide additional non-special education intervention.

Do students with Sensory Processing Disorders have rights under Section 504 and IDEA?

My son is 10 years old and in 4th grade. He was just diagnosed with a Sensory Processing Disorder, being severe with touch and visual. I live in a very small community with a small school and very little funding. Would this type of disability be covered under section 504 or IDEA?

I am trying to find a way to get the help my son needs in order to succeed in school. However the school keeps telling me they don't have funding and can't bring in specialists. They say that this disability is not a federally recognized learning disability under the federal guidelines. I should mention that I can't trust the schools opinion a lot because for years they have told me my son does not have a problem other than "laziness and disrespect." Therefore, they can't assist us. I am trying to figure out if I can "force" them to bring in help under the federal guidelines or just try to get them to accommodate my son as much as possible.

Thank you,
A concerned and frustrated parent

The IDEA doesn't specifically reference Sensory Processing Disorder as a listed disability. However, many children with Sensory Processing Disorders may be appropriately made eligible for special education under the special education category of Other Health Impairment, due to a medical condition which causes limited strength, vitality or alertness, including limited alertness to educational tasks due to heightened alertness to environmental stimuli. I have successfully argued in many cases that sensory processing disorders may fall either under the category of Learning Disability, if they affect processing of information, or under OHI, if they affect the ability to attend, focus, behave, etc.

Even if your child does not meet criteria for an IEP under the IDEA, a sensory processing disorder may qualify for protections under Section 504 as a physical or mental impairment which substantially limits one or more major life activities, including thinking, learning, working, etc. It would be helpful if the clinicians who diagnosed your child could provide detailed information about the ways that the disorder impact your child's functioning at school, as well as provide you with articles or research that you could share with the school staff to help to educate them about the disorder and to persuade them to take it seriously.

Can the school terminate a 504 plan without reevaluating the student?

I am a special education teacher in Western MA and a parent of a 17-year old who has been variously clinically diagnosed with PDD-NOS, NVLD, PTSD-GIFTED, P. ANXIETY. She was hospitalized for about 2 1/2 months at the end of 2004. Early in 2005, she was put on a 504 plan. Her hospitalization was the only reason for her getting the 504.

My husband and I recently received a "Section 504 Termination Notice." Our daughter had a complete neuropsychological evaluation in June of 2005. At that time she was diagnosed PTSD-gifted and not NVLD, one of the diagnoses she had during hospitalization.

Perhaps she doesn't need a 504 anymore, but the lacking evaluation and procedural pieces leave us wondering and concerned about her appropriate education and preparation for college, particularly at a time in her life when she is looking outside for support and guidance. We have refused to sign the termination notice and have informed the school that our daughter is about to turn 18 in February. We are advising that she speak with an advocate before she signs anything. Doesn't there have to be an evaluation before any change of the 504? What are the steps that my husband and I can take?

Please help,
Ingrid

You are interested in whether a school can unilaterally terminate a 504 plan without a reevaluation. The answer is NO. The 504 regulations are clear that a 504 plan cannot be changed or terminated without conducting a new evaluation and without convening a 504 meeting, with your participation, to make the decision. Further, with or without an evaluation, the school has to have reasons for why they are recommending termination and have to share those reasons with you. If you disagree, you have the right to request a Section 504 hearing to challenge the termination decision and the right to file a complaint with US Department of Education's Office for Civil Rights.

Can the school send a child home because he did not take his medication that day?

I want to know if the school system can make an ADHD child go home because he hasn't had his meds that day. He wasn't doing anything except not doing his work and it was either go home for rest of day or suspend him for a day.

Thank you,
Susan

Dear Susan:

Your question asks whether a school district can make a child to home because they haven't had their medication that day. Schools may not condition participation in school on whether the child takes medication.

The decision to take medication is a private decision between the family and the physician. If a child is not taking medication, the school still has an obligation to serve the child and must develop alternative strategies for doing so that provide the child a free appropriate education.

If, as seems to have happened in your case, a child is sent home on a single day, for not doing their work, you should investigate whether other children who are not doing their work are sent home. You might also want to build into the child's IEP or 504 plan a contingency or backup plan for what happens if, for whatever reason, the child is not medicated.

If the child is not causing disruption or problems to others, it would seem highly inappropriate for them to be sent home or threatened with suspension. Further, if the child is sent home involuntarily, it should be treated as a suspension, whether or not the school officially labels it as such.

Is a child considered to be receiving an “appropriate education” if their occupational therapist is absent half of the time?

My son has Aspergers. Has an IEP. He is supposed to receive OT twice a week. If he is lucky he gets it once a week. The OT is out sick a lot. Is the school required to hire a sub? We live in NY. Who do I speak to? What are our rights?

Thanks,
Christine

Dear Christine:

You are concerned that due to provider absence and other circumstances, your child is only receiving half of the related services that he is supposed to. As would be true in general education, the schools are granted some small lee way in relation to things that come up that cause teacher absence, emergency school closure (snow storms) and the like. With regard to implementation of IEP or 504 services, a school would generally be allowed some small wiggle room in relation to missed services.

For example, it is not unusual for related services to start a few weeks after school starts, in order for the staff to get organized. While I disagree with this practice, few courts would rule that a few missed sessions constituted a denial of a free appropriate public education.

However, when the services missed reach the level of exceeding 15% or more (my own arbitrary number), let alone missing 50%, there is clearly a denial of FAPE. The service level and frequency was established based on the professionals' judgment about what was needed.

If 50% of services are being missed, the child is not getting what is needed. Solutions could include the one you made, to wit to have a substitute provider available. I would want to insure that any substitute provider was aware of the child's program, familiar with what was being worked on, and able to interact with the primary provider before and after the substituted service to make sure that it was meaningful, rather than just baby sitting.

An alternative would be to seek compensatory services to make up for the missed time. For example, if the therapist missed 15 sessions, the school should provide those 15 sessions at some other time during the school year to make up for what was lost. This is called compensatory education and is well established as a remedy when the school fails to provide appropriate services it has promised to an extent that interferes with the child's educational progress or functioning.

May I have a sample letter to request that my child be evaluated to determine if he or she needs special education?

I would like to know if you have a sample letter to request for my child to be tested for special education, of if you could let me know what key points I need to include in the letter?

Thank you,
Elizabeth

Dear Elizabeth:

You have asked for a sample letter requesting testing. It does not need to be complicated. Note that the title of the person in charge of special education may vary from state to state or district to district. In some instances, the state may even have regulations which define to whom the request should be sent. If in doubt, send copies to the Director of Special Education, the school principal and the School Superintendent.

Note also that children who reside in the district but are homeschooled or attend private school in the district are also eligible to be evaluated for special education. This letter can also be used for children in those situations.

Try some variation on this:

Date:

Dear Director of Special Education:
My child, _______ , is a student at _______ School and/or lives at _______ in your school district. I am requesting that my child be evaluated in order to determine if he/she needs special education. I am requesting this evaluation because I believe my child is having problems with: _______ which may be due to a disability.

If you are in agreement that my child should be evaluated, please contact me as soon as possible so that we can discuss the test process, what testing should be done, and so I can provide written informed consent for the testing. If you do not agree that my child should be tested, please advise me of this immediately in writing, and provide me with any information I need to challenge this decision if I choose to do so.

Thank you for your assistance in advance. I look forward to hearing from you as soon as possible.

Sincerely,
Concerned Parent

Send the letter by By Certified Mail/Return Receipt Requested

Can and should a school transition a student from a Special Education IEP to a 504 accommodation plan?

I teach in an Adult Ed setting. The nature of our program is self-paced and individualized, with one-on-one instruction from teachers in both our GED and High School Diploma programs. When an IEP student requests enrollment, we've presented the option of both a 504 Accommodations Plan and an IEP during the initial staffing meeting. At the meeting, we discuss and explain the advantages of both, and we have both a proposed IEP and a proposed 504 plan for the team to review at the meeting. If the parents, student and committee members agree that a 504 Plan is sufficient, then the student is signed out of special services and a 504 Plan is implemented in lieu of an IEP.

So, my question is, since our Adult Ed program is designed to be individualized in nature, is it appropriate to allow an IEP student to 'try' a 504 Accommodations Plan in lieu of an IEP if the IEP team determines that the student deserves a chance to do so? Or, is it inappropriate to present the option of a 504 Plan at an initial staffing when the student has had an IEP at a previous school?

Thank you,
Gina

Dear Gina:

Your question deals with whether a student who has previously been in special education and is now transitioning to an adult ed program operated by the school district for students under 21 that have not yet graduated may could/should be given the option of a Section 504 plan and be exited from special education if the 504 plan would meet their needs.

The decision to terminate special education services may be made at any time by the IEP team, including the parent, and for those students 18 or older, including the student. The threshold question operationally is whether the student still needs special education assistance.

Your question, though, recognizes that sometimes the line is blurry between needing special education and an IEP vs. only needing a Section 504 plan. In fact, a Section 504 plan also requires that the student receive a free appropriate public education, but contains fewer regulatory requirements for how the program operates.

I can see pros and cons to your desire to promote a shift to 504 eligibility, but you have not articulated clear reasons for why doing so would be advantageous for the student. If they meet criteria for IDEA eligibility and there is no advantage to shifting to 504 eligibility, I am unclear why you would do it.

I am also concerned that in some schools, this might be done as a way of sidestepping the very strong IDEA transition requirements and giving the child/young adult less services with less protections. Since Section 504 does not contain comparably strong transition requirements, my inclination would be to maintain IDEA eligibility.

On the other hand, in individual cases, if there is truly an open and full discussion of the options, the child and parent fully understand those options, and all agree that a shift to Section 504 eligibility is preferable, there is nothing legally improper as long as the correct procedures are followed.

I would also note, though, that you suggest that if the student needs to get back into special ed after being declassified, they can do so. While this is theoretically true, the process of making a student eligible again is time consuming and burdensome….and I would be concerned that in some schools it is much easier to get out of special ed then to get back in if it is needed at that time.

Is the school required to test a child for dyslexia?

I live in Middlesex County, NJ. My child is 7 and in second grade. He comprehends mathematics well, but cannot read or write neatly. He writes letters backwards. I want his school to test him for dyslexia. He is in a public school. Under the United States law public school must test for dyslexia. Is that true?

Mary

Dear Mary:

If a child is having academic problems due to a suspected learning disability, the school has a legal obligation to test them under the "CHILD FIND" requirement. Dyslexia is explicitly listed as one of the sub-categories of specific learning disability in the federal law. If you think your child should be tested, you should make a formal request for evaluation in writing to the superintendent and director of special education. You should send the request certified mail, return receipt requested. The school must either agree to do the testing or inform you that they are refusing to test, the reason for the refusal, and inform you that you have the right to request a hearing to force them to test. You also have the right to obtain an independent evaluation, and the school is required to consider the results of all such independent evaluations.

If the school is not educating a child well, can a parent find a program and obtain funding from the school system to pay for it?

My 17 year old son is a senior in a Knox Co Tennessee high school. At 5 yrs old, he was diagnosed with Auditory Processing Delay (APD) and ADD by his pediatrician and audiologist. His IQ score on intelligence tests was "above average". Since the 2nd grade, he has received special education services. In addition, he was privately tutored after school 2-3 hours per week in writing, language basics, spelling and Algebra I from grade 2 through 11.

In the fall of 2004, I enrolled him in a Sylvan Learning Program. He made excellent progress, but unfortunately after participating 7 months, he became unmotivated due to the elementary nature of the course material and quit.

Currently, he is enrolled in an electrician course at the vocational school (high school). Last week, I observed his writing and reading skills remain at an elementary level. He couldn't complete the initial exercises and worksheets of the course. Bottom line, he doesn't have the necessary basic academic skills to be successful at anything?

Mr. Cohen, if I can locate a more effective education opportunity which teaches reading and writing skills (grades 5-12) by utilizing teaching techniques which accommodate students with APD, do I have any legal right to ask Knox Co schools to pay?

My son hasn't had behavior problems prior to this year. However, he recently he has become depressed, anxious, and defiant. He feels like a "loser" because of his lack of success. He' told my husband that he thinks of himself as "stupid".

As you can see, I'm desperate to locate a school and/or education curriculum which will address my son's learning disability more effectively. Over the years, I participated in the IEP process. Most of the accommodations were made in the classrooms of 25-30 students. The accommodations included having him sit in front of the classroom; take a longer time to complete assignments; obtain "notes" from a buddy; participate in "fundamental" level classes; and have tests read to him. These accommodations did not result in academic success sufficient for the pursuit of higher education or attendance in a skilled labor apprentice program.

Justin needs individual or very small group instruction in language skills. He also needs an environment which is more accepting of students with learning disabilities.

Interestingly, Justin passed all of the State of Tennessee prerequisite tests to earn a "normal" high school degree. Obtaining a "normal" high school degree was the #1 goal I requested for the IEP.

Thank you so very much for caring about children with these issues.

Janet

Dear Janet:

Your son's situation sounds terrible. School districts are required to provide a free appropriate public education from age 3 through high school graduation or 21, whichever comes first. At age 14 (under the old law, effective when your child seems to have turned 14 (age 16 under IDEA 2004), the school district was obligated to develop a transition plan which identified your child's vocational interests, aptitudes, needs, and services necessary to assist him in achieving realistic post-secondary goals. Under the new IDEA 2004, these evaluations are supposed to be even more intensive, as are the programs to address your child's needs. IDEA 2004 also requires that the transition plan include "the courses of study" necessary for the child to accomplish their transition objectives. In my interpretation, "courses of study" can include vocational training in a particular field, job readiness training in relation to job performance in general, and/or remedial education in the academic subjects necessary in order to realistically move forward towards the identified vocational goals.

If your school system does not have appropriate programs to meet your son's transitional needs, they are obligated to obtain such services elsewhere. If you identify a program that does meet his needs, and the school has failed to develop or offer an appropriate program, you should bring the private program to the attention of the school system. Similarly, if your son needs remediation in a particular area in order to move forward with their transition plan, that may also be the responsibility of the school system. Finally, if the school has failed to offer appropriate programs in the past, your son may be eligible for compensatory services to make up for the lost time. To be clear, however, your school may not volunteer these programs and you may need to prove that a) their programs have been/are inappropriate and that b) the program (s) you seek are necessary and appropriate.

You may want to consult with a knowledgeable special education attorney for assistance with this situation.

Does eligibility for special education services make the child eligible for SSI or medical care?

I just got my child approved for the 504 plan with school. He is ADHD. Is he eligible for any financial help for tutoring or help with medications or doctors and/or SSI? If so what might I have to do?

Thank You,
Cindy

Dear Cindy:

School districts are required to provide those services necessary for a child with a disability to benefit from education. Under some circumstances, this might include extra tutoring, but would never include medicine or medical care.

Approval for a 504 plan or an IEP does not automatically mean that your child qualifies for Supplemental Security Income (SSI) or other forms of government assistance that may be available in your state for children with disabilities. However, it does suggest that a disability has been confirmed by the school district, which may mean that your child’s disability may also meet the criteria for SSI or other financial supports. However, these funding sources use different criteria for eligibility than do school districts. Generally, qualifying for one does not automatically mean you qualify for the other.

What are the rights of children who are gifted and also have learning disabilities?

Our son is 13 and going into 8th grade. He was JUST diagnosed with a reading disorder, writing disorder, and significant deficits in memory and processing. He was also given the label of having developmental dyslexia which was written as a medical diagnosis. It was also written, however, he did not meet clinical criteria for a specific learning disabilities. I thought dyslexia was a specific learning disability? Is the criteria he would have to be failing?

The issue is he is also a "gifted" kid with an IQ close to 132 and gets A's and B's with 2 C's recently in math, though math was a strength area. He was also diagnosed with auditory processing disorder three years ago. He has had an SST folder at school with maybe two accommodations that are rarely followed. We told the school we would have him evaluated privately by a neuropsychologist. Depending on the findings, we would have an SST meeting or an eligibility for special services meeting.

His evaluation had a 30 point discrepancy in reading and a 21 point discrepancy in writing. The school considered them average scores! The school tabled the eligibility meeting and concluded it was just an "SST" meeting because summer is here. They asked us to call the first day of school to set up an eligibility meeting. I say it is pretty clear cut they will try to say he is not eligible. Without an IEP already written at the beginning of the school year, will we have to wait another whole year? Should we ask for the eligibility meeting for late summer before school starts in August?

We have been frustrated as we have been trying to have help for him the past 4 years. His grades are beginning to drop; numerous F papers but enough A's to counteract. Our state also has testing that require him to PASS to move on to the next grade (8th to 9th) and H.S. exit graduation tests to get a diploma. He tests poorly due to memory and processing deficits. Help! Thank you.

Thanks,
Tracey

Dear Tracey,
Your question addresses the rights of your child who is gifted but has significant learning disabilities. Your school district has taken the position that because your child is overall receiving passing grades and achieving at a level comparable to other children, your child is not entitled to special education services. This question occurs frequently and is a difficult one.

Many school districts choose to set their eligibility criteria based on the child's not only displaying a discrepancy on performance relative to their intellectual potential, but also requiring that the child display an impairment in relation to the average population. Under the old LD criteria, the U.S. Department of Education has previously stated that this position is inappropriate and that a child should be considered for eligibility based on significant discrepancy in relation to their own potential not in comparison to other children. However, you should also be aware that the discrepancy formula has been discredited.

Schools will now be looking at a broader range of criteria for determining if a child is eligible for LD services. In particular, school districts will be looking at a whether a child's problems were due to inadequate instruction as opposed to a processing deficit. This procedure will involve the provision of targeted research based intervention to see if they made progress. In the absence of such intervention, the school could not use this as a basis for denying your child eligibility. On the other hand, IDEA 2004 also expanded the focus on developmental and functional difficulties in addition to academic difficulties.

It will be important for you to high-light the various ways that your child is experiencing difficulty as evidence of the impact of the diagnosed learning disabilities on their academic functioning. You and your clinician should gather information about the child's difficulties with reading, writing, completion of work, timeliness and the like in order to substantiate that the problems they are having have had a functional impact on them, even if they are still able to get passing grades. Under the new IDEA 2004, there may actually be a greater basis for eligibility than there was under the old discrepancy formula.

Does a child have the right to an accommodation if they transfer to another school to take a particular class?

My son is 15 years old and in the 9th grade. He entered the gifted and talented program in elementary school. Between 4th and 5th grade, I noticed a significant lowering of his standardized test scores, and a difference between what he thinks and what he actually writes down on paper. I requested further testing, and he was found to be eligible for an IEP based on a specific perceptual processing disorder, that interferes with his reading, writing and spelling. He seemed better through the 7th and 8th grade, and was taken off the IEP.

Now he is in 9th grade. He taking Japanese as his foreign language, and he is failing. The exams are oral His teacher reads things out loud, and he has to write the word and meaning. He has trouble hearing the word amongst the sentence. I thought he could retake the course if he failed He thought that if he took it again, he would definitely do better, because the characters, vocabulary, and sentence structure would be familiar.

I was told by the school personnel that he would not be allowed to retake the course, because I have him on an interdistrict transfer specifically so he can take Japanese (it is not offered in our school district). Yet, they would allow their own district students to retake it. In fact, they said that they expect interdistrict transfer students to do well, and that my son would be kicked out of the school if he did not make a C, so he could go to the second year. Is this legal? What can I do? I don't think he should go to the second year without mastering the 1st. He should have the right to learn the language. Also they said that since I took him off of the IEP at the end of 7th grade, that he no longer has a disability. I don't agree. I think it can reappear as the subject matter becomes more complex and is unfamiliar.

Your question involves the right to accommodations in relation to a permissive inter-district transfer program. Specifically, you were wondering about the right of accommodations in relation to your child taking Japanese. The key in your situation seems to be that the school will allow accommodations for children who are within the district, but will not allow for accommodations who are an inter-district transfer student.

The nature of the inter-district transfer program complicates matters, as it means that your child is not legally entitled to participate in the program. However, once your child is admitted to the program, there is a good argument that Section 504 would require that they be provided accommodations within the program as they are otherwise qualified to participate. Since the other students were given the same accommodations, it would be difficult for the school to argue that the accommodation itself would represent a fundamental change to the program or an undue burden.

What do you do when the school denies services and an independent evaluation?

Back in 2002, my son was in the 1st grade at a Private school in the Bronx, NY. I requested that my son be evaluated for dyslexia and speech and language development.

After the evaluation the school told me that my son was too young to be tested for dyslexia, that he did not have any speech/language developmental issues, and that his IQ was normal. Therefore, they said, he did not need any services. They felt he was just a very young first grader. They suggested that he be held back a year, removed from his private school, and placed in a public school in a collaborative learning class. So I did so.

After 2 years in the first grade, and then being promoted to the second grade, I noticed that my son still couldn't read. I asked for my son to be evaluated again. This time they found that he did have speech/ language impairment, some sort of reading disability. They said his IQ was just above mental retardation. I was outraged, IQ's normally don't drop that quickly unless there has been some brain damage.

Since then he has had about 3 psychoeducational evaluations. I have asked at least 3 times for my son to be evaluated and tested for dyslexia. I have been denied each and every time. My son's IEP says he is supposed to have speech therapy. He hasn't had it all year long. No one notified me until last week that they didn't have a speech therapist on staff. My son can barely read. He will be promoted to the fourth grade in September, 2006. What steps would you take next? I feel my son is slipping through the cracks. My son has told me that he is stressed out in school and I am frustrated for him.

Thank you,
Karen

Dear Karen,
Your question raises a variety of concerns with respect to your child being inappropriately denied services several years ago, denied appropriate services in the meantime, and denied an independent evaluation which you requested. Your school apparently also took the position that dyslexia is not a learning disability covered by the law.

It appears that the school district may have violated your rights in a number of ways. Certainly, dyslexia is one of the specific conditions identified as a subset of the disability category of learning disability within the federal law. Thus, for the school district to assert that dyslexia is not covered would be improper.

Although it is difficult for children to be diagnosed with learning disabilities when they are younger, this is not impossible and occurs with some frequency. If your child did not receive appropriate services for the past several years, this could well have contributed to a drop in your child's IQ scores. When a child is denied an appropriate education, the child may be entitled to receive compensatory educational services. However, typically a parent has to pursue a request for a due process hearing before a school will consider or be ordered to provide such compensatory services. In addition, when a parent requests an independent educational evaluation at school district expense in writing, the school district is obligated to either provide the independent evaluation at school district expense or request a due process hearing to prove that the school district evaluation was appropriate.

From your question, it seems that the school district did not follow this procedure. Under the circumstances, you have a variety of complaints which would provide the basis for further action against the school district. You may wish to consider a consultation with a knowledgeable advocacy group or special education attorney to establish an appropriate course of action.

What rights do parents have when their children are placed in a school that does not help them?

I have an 11 year old daughter with ADD, who has an OHI certification and an IEP with goals in Written Language, Reading, and Math. She also has numerous accommodations in all subject areas. We have "school choice" in our district, but we did not get the choice we wanted for her. Instead, she was placed in a IB Magnet school, which is a challenging curriculum across the board. I have already asked for a review of the decision. They only offer "accelerated math" as the math option at that school.

There is a political agenda to try to get increased enrollment in the school due to its location in a less desirable area of the city. I also have 3 other children that attended our first choice school that she did not get. Our number one concern is that they do not have a regular education program that can meet her needs at this Magnet school. Other concerns remain regarding her peer group there. What are my legal rights as a parent?

Ginnie

Dear Ginnie:

Your questions involves what options or rights are available to you in situation when your child is placed in a school based on factors other than their educational needs or IEP requirements, including placement in an inappropriate accelerated math program.

For children with disabilities, all decisions should be IEP driven. However, the IEP may not have been sufficiently specific as to rule out the school that your child ended up in. If your efforts to resolve this matter informally have been unsuccessful, you should reconvene the IEP meeting in order to revise the IEP to reflect the various problems that your child has and the programming that these problems require, including access to a math program that is academically appropriate for them. By virtue of revising the IEP, you may be able to effectively rule out the magnet program in which your child has been placed or to drive a new placement decision into a more appropriate setting.

What are a parent’s options when their child is mistreated by school staff?

My child is 14, and was diagnosed with CP at 6 months old. He is currently in 8th grade. I have had members of the school staff, along with students come to me and inform me that 2 of the aides in the special ed. class are really mean to him. My child has told me that they are mean to him. He has always loved school until this year.

I have read that the school must provide a safe and positive environment for my child. Can you please tell me the law? I am frustrated and would like to be well prepared. I have never had any problems until these two aides were hired. Please give any and all information possible.

Thank you in advance,
Jenny

Dear Jenny:
You describe a situation in which two aides are being "really mean to your son". Your question seeks information about what the legal obligations are that the school maintains a "safe and positive environment".

Historically, because schools serve "in loco parentes", which means in the place of the parent, schools have always been expected to be a safe and positive environment. However, the courts have generally allowed the schools to avoid responsibility for improper conduct by staff if the school district was not aware of or on notice about the improper conduct. Thus, when school staff are treating the child improperly, it is very important for the parents to provide documentation to the administration advising them of the improper conduct so that the administration can take the appropriate steps to protect the child from the improper conduct in the future.

In addition to these general legal principals, the No Child Left Behind Law has a specific mandate that schools provide a safe and positive environment. Unfortunately, this does not have specific enforcement mechanisms with respect to mistreatment by staff. However, where staff are involved in mistreatment of a child, you may make a report of child abuse or neglect to the state child protective agency or the police. Provisions of these laws vary from state to state, so it would be important for you to check the specific requirements of your states Abuse and Reporting Act.

Can a parent require an objective assessment of a child’s skills when the school district wants to use teacher assessments?

Dear Mr. Cohen,

At my daughter's staffing in June, it was determined that she was eligible for special education services. She will receive services for reading and spelling in the resource room, language (word finding) from the speech and language pathologist, and consultation from an occupational therapist for sensory integration.

For the reading goals, I asked if the Woodcock Johnson test or similar test could be administered to show progress in reading. (We obtained a very thorough private evaluation and have a very clear baseline.) The school district said that they couldn't do that. To use a standardized test would require completing a domain sheet and a reevaluation. The school simply wants to use "teacher assessments." Because of previous experience with an older child, I'm uncomfortable with "teacher assessments." Also, the teacher assessments give me no idea how my child is performing in relation to her peers and if she is making adequate progress.

Terri E.,
Glen Ellyn, IL

Dear Terri,

You have made a reasonable request for an objective measure of your child's progress in relation to some of her goals. There is absolutely no requirement that the school district complete a domain sheet or the normal components for an evaluation in order to conduct a particular specialized assessment in relation to progress on goals and objectives. It is entirely permissible for the parent and the school to agree to use an objective achievement measure for purposes of measuring progress in relation to specific skills. Further, the completion of a domain sheet, which is intended to specify what evaluation components are needed, can be completed at an IEP meeting. Thus, if the school district was concerned about obtaining agreement and written consent from you prior to using an achievement measure, they could have done so at the IEP meeting.

However, you should be aware that with respect to a number of processing issues, it may be useful to combine objective testing with teacher assessment. Unless the test instrument is very precise with respect to the skill that has been identified to be addressed in the objective, the test may or may not adequately capture the skill that is being directly addressed through the objective.

You should also be aware that although there are specific rules regarding the frequency with which intelligence tests can be administered, those rules may not be applicable with respect to the administration of various achievement or processing tests. The rules vary by test and by situation. However, it is important to insure that the test being used is valid for the intended purpose. Further, a number of the most common tests come in several forms or versions, specifically in order to allow for the administration of multiple versions of the test over a specific period of time.

Do students who attend religious schools have rights to special education services?

Dear Mr. Cohen,

My eight-year-old son attends a private Christian academy in Maryland. He has received failing grades all year. The principal of the school signs off on his report card with "try your best" or "work harder". The teacher and I have been working together to figure out what's going on with my son and to help him improve his grades.

I sent the principal an email approximately six weeks before the end of the school year requesting that the school test him for LD or ADD. She responded once, that she would get the ball rolling, but no action was ever taken. We never met with the school's diagnostic personnel or the principal to discuss alternatives. I was informed that after a school receives a written request to test a child, the school has 90 days to respond, etc. Since no action was taken, what should I do now?

Thanks for your input.

Tracy
Bowie, MD

Dear Tracy,

Your question addresses the entitlement to services for a child who attends a private Christian academy. As a general matter, a child who attends a private religious school is not entitled to any of the protections of the non-discrimination laws, such as the Americans with Disabilities Education Act, if the school district is religiously controlled, as it appears to be in your situation.

The only exception to this would be if the school receives either specific funding from the school district under the Individuals with Disabilities Education Act, or some other form of direct funding to the school from the federal government in order to trigger the protections of Section 504 of the Rehabilitation Act of 1973, which also prohibits discrimination on the basis of disability. In the absence of a federal funding stream, neither the Individuals with Disabilities Education Act Section 504, nor the Americans with Disabilities Education Act apply to the private religious school.

Although a child may be in a private religious school, the child still has a right to be evaluated by the public school at no expense, in order to determine whether the child qualifies for special education. If, as a result of this evaluation, the public school determines that the child does qualify for special education, the parent may either opt to enroll the child in public school in order to obtain the special education services, or may request that the public school provide special education services while the child attends the private school.

However, if the parent elects to request services through the private school setting, rather than enrolling the child in the public school, the child is not legally entitled to receive services from the public school. Rather, the public school is entitled to determine how to use its federal special education dollars in relation to that child, or whether it will provide services to the child at all. Under the IDEA, the school district's obligation to children voluntarily enrolled in private schools is only to provide a certain amount of money for such services in general, rather than to provide services to individual children pursuant to their individual education plans.

What rules must the school district follow when they evaluate a child for learning disabilities?

I am cognizant of the "basic requirements" for re-evaluation, but are there any "bright line" standards for determining appropriateness of a re-evaluation?

For example:

  • Does a quick phone call (5 minutes to ask for consent signature without asking parent input on the evaluation) to a parent constitute full parent participation?
  • Does "informed consent" require that the parent be told what tests are going to be conducted specifically or just that there will be "tests?"
  • Should a full battery of tests be performed or is just one enough, if other information is included, like a nurse's statement and general ed teacher statement?
  • Should the evaluation report include significant detail or is it appropriate to just include test scores and very brief outline of current circumstances (grades, delightful student, works hard, blah, blah)?
  • If determinations are made that a student doesn't need specific services (ESY, assistive tech) should the details of that determination (testing conducted, specific records reviewed) be included or is it enough to check the box that says the student doesn't qualify?
  • Should the report be in plain English, or is technobabble adequate?

You get the picture…

Sara
Seattle, WA

Dear Sara,

Your letter raises many important questions with respect to the requirements for evaluation. I will try to deal with them in as much detail as I can. Unfortunately, the desired "bright line" that you refer to is often more blurry than we all would like.

Before any evaluation can be conducted, the school district is obligated to obtain informed written consent from the parents. While informed consent is not well-defined by IDEA, this is a concept that has been a cornerstone of American law for many years. Fundamentally, informed consent requires that the parent have sufficient information to be aware of the reason for testing, the nature of testing, the consequences of testing, and some basis for assurance that the evaluators are qualified to perform the tests. The extent of information that the school should provide will vary based on the circumstance, the extent of testing, and the level of specialization of the testing. For example, I would expect that different information would be provided for a preliminary referral for evaluation for learning disability as opposed to the request for a psychiatric assessment due to the concern that there is a specific psychiatric problem.

Unfortunately, while there is a clear obligation to obtain written consent from the parents, which should be informed, there is often dispute between parents and schools as to what information is necessary in order for consent to be "informed." While it is reasonable and appropriate for a parent to seek clarification or further information about testing, there may be disputes as to the extent of information that the school district is obligated to provide.

You also question whether a full battery of tests is required or one test, with supplementation by anecdote. At the outset, even the meaning of "a full battery of test," is subject to debate and will vary from child to child, situation to situation, and district to district. In any event, the law is very clear that school districts are not allowed to rely on a single test or measurement in making a determination of disability. The scope of testing ought to be determined in relation to a collective decision as to the nature of the suspected disability and the types of assessments that would be responsive to it, including both testing, observation, interview with the parents and the child, observation of the child and review of records.

Parents generally should be aware that the "full test battery" which is often used by school districts may very well actually be of greater utility for the purpose of screening than it is for the purpose of fully and accurately diagnosing the existence of particular disabilities and/or the exact nature of those disabilities.

As a result of the 2006 IDEA regulations, states will be deciding to what extent to use Response to Intervention procedures to address the needs of children suspected of having learning disabilities prior to determining eligibility and, ins some instances, prior to conducting an evaluation. Parents and clinicians will need to check their state's new regulations or interpretations to determine how RTI procedures fit with the normal evaluation process and the extent to which district's will continue to use the traditional "discrepancy formula," as part of their assessment of whether a child has a learning disability.

The law requires that parent input be obtained in relation to an assessment of the child's functioning and needs. A discussion for the purpose of obtaining the parents' consent to an evaluation is not the same as obtaining the parents' input with respect to their assessment of the child's functioning and needs, once an evaluation has been initialed.

The law does not explicitly describe how much information must be shared in an evaluation report. In fact, it does not explicitly delineate a specific responsibility for sharing evaluation reports. School records certainly include scores, although they may not include protocols or the evaluator's personal notes about the test experience. If there is a written report, the parent certainly has the right to obtain a copy of the written report. The parent also has a right to obtain scores. Under special education and general privacy laws, the parent may not be entitled to obtain raw data that is the basis for the scores, but may even be entitled to have that raw data reviewed by a qualified examiner of their choosing if they are worried that the raw data has not been appropriately analyzed. Parents are always entitled to get sufficient information to make initial informed decisions about whether the child should be made eligible for special education and to obtain a complete copy of the child's school records, which includes all reports by evaluators.

With respect to your question as to how much information should be provided by the district to explain decisions that a child does not need certain services, the law is somewhat vague in this regard as well. While a school district is not obligated to provide a full explanation for why it did not consider or provide every conceivable service that might be available for a child, as this would be impractical and burdensome, it is obligated to provide an explanation in relation to any service that has been specifically requested, whether by the parent or by a member of the IEP team. In other words, there may be a wide range of services that are not under consideration for a child because no one has any reason to believe they are necessary. However, if a service has been discussed, the school district ought to provide a sufficient explanation in the IEP to allow someone to review that decision later and have an understanding of the basis for refusal.

Finally, you asked whether the IEP report should be in plain English or can be in technobabble. While there is no explicit rule regarding the acceptability of technobabble, nor with respect to the legibility of the document, a strong argument can be made that if the parent cannot understand what was written, the use of either technobabble or illegible documents could constitute the denial of a free appropriate public education. If the language or writing of the report or IEP document impairs the ability of the professionals or the parent involved to understand or read the document, it is hard to imagine how the document could satisfy the procedural or substantive requirements of IDEA.

What are your rights when the school makes some modifications for your child, but will not say that the child has a disability?

Dear Mr. Cohen,

We have been having problems with our local school district. My son has been diagnosed with Pervasive Developmental Disorder, AD/HD, and Borderline Intellectual Functioning. The special education department claims that he is not eligible for services under an IEP or a 504 even though he has deficits and has a developmental age of 3- to 4-years-old and is now 6-and-a-half-years-old.

They refused special education services and placement in kinderprep and placed him in kindergarten last year. The classroom teacher made modifications to his curriculum and he had one-on-one instruction for the most part. Even with these things he did not meet the requirements to go on to first grade. The school is still refusing services, but recommends he be retained in kindergarten.

I am not sure where to go next. Being that he is almost seven, I do not feel it is appropriate for him to remain in kindergarten without support, or to move on to first grade unsupported; any way he goes without support he will fail. What should I do?

Susan
Garden City, KS

Dear Susan,

Your letter raises a number of issues and concerns. First, parents have the right to request evaluation by a school district if they suspect their child has a disability, or have already confirmed that through outside evaluation. The school district has the obligation to either conduct the evaluation and make a determination of whether the child has a disability, or to advise the parents of their right to request a due process hearing to challenge the refusal of evaluation or the refusal of eligibility. Once the school year has conducted an evaluation, if they determine that the child does not meet criteria for eligibility, the parent has the right to request a due process hearing to challenge the denial of eligibility.

In your case, it appears that the school district has made a number of accommodations and provided some services without recognizing your child's eligibility under either IDEA or Section 504. Despite the decision to refuse eligibility, they now recommend retention. The decision to retain would appear to confirm your perception that the disabilities are adversely affecting your child's educational performance, which would support the decision that eligibility is appropriate.

There is a wide body of research indicating that retention is generally not only ineffective with respect to the educational needs of children, but is oftentimes detrimental to the child in relation to his or her academic and social growth and self esteem. Unfortunately, in the absence of agreement between you and the school district, you may be forced to take a more aggressive position. You may wish to move up the ladder within the school administration in an effort to resolve this matter prior to requesting a due process hearing. If that is not successful, you should consider requesting both mediation and due process in an effort to work out a solution with the school district that does not actually require an adversarial process.

As a qualifier, you should be aware that clinicians in the private sector often use diagnostic criteria that are not the same as those used by the educational system. Thus, it is possible that a child could legitimately meet clinical criteria for a variety of disabilities, while the school district could nevertheless legitimately conclude that the child did not meet educational criteria. However, where the school district is so concerned about the child's progress that they propose to retain them, it would seem difficult for the school district to make an argument of this sort. You should also consider consulting with an attorney or an advocate who is knowledgeable about special education law to assess your case and to obtain assistance in moving forward with the school district.

How does a parent persuade the school system to use a particular reading program that they believe will help their child?

Dear Mr. Cohen,

I have an LD child who was first classified in March of 2004 when he was in kindergarten. I had first brought up my concerns in November of kindergarten and was asked to wait for my son to mature a little more. Needless to say, by January I pushed the issue and we went to CSE at the end of March.

Now my son is in first grade and receives Resource Room every day for forty minutes and Speech and Language two days on a six day cycle. I have spoken with all of his teachers and they say he is doing great, but agree that he is low. I have expressed my concerns that he still doesn't have letter/sound recognition and that he really needs, in addition, to be in a one-on-one reading, (phonetically based) program.

I have asked for another meeting to add some goals to his IEP. What are my legal rights once in that meeting? I have been told that I am not permitted to ask for a specific reading program, but instead a research-based reading program. What are your thoughts and advice for me?

Jennifer

Dear Jennifer,

Your question raises the issue of whether and under what circumstances you may request specific methodologies, services or interventions, in response to your perception that your child is not making appropriate progress. At the outset, you have the right to request anything that you wish to request. There is no limitation to what you may ask for in an IEP meeting. On the other hand, there is no obligation on the part of the school district to agree to what you are requesting just because you request it. As a result, it is wise to be careful about requesting things only if they are realistic and you can substantiate the basis for them. Making outlandish requests to a school district or requests that are not legally supportable will serve to alienate the staff, without getting your child the services that you are seeking.

In order to avoid this problem, I suggest that you carefully document the ways that your child is continuing to experience difficulty, despite the positive feedback from the school staff. This documentation can include accumulating work samples, videotaping your child having difficulty with various tasks that he/she is working on, accumulating test data from the tests that the school staff are administering, including classroom tests and achievement tests, and obtaining data from school psychologists and independent evaluators indicating the ways that your child is underachieving relative to both his/her intellectual potential and in comparison to peers.

While your child may be "low," it is important for you to establish that your child is functioning below where he/she ought to be functioning given the intellectual potential. This requires some comparison of actual performance to how the child has been assessed intellectually by the school and/or outside clinicians. It is also important to provide information that documents the ways that these specific academic tasks, whether reading or otherwise, takes your child excessive amounts of time, causes excessive anxiety, or generates other symptoms or behaviors which suggest that your child is having unusual difficulty in comparison to his/her peers.

With reference to requests for specific reading programs, the school district is partially correct, but not entirely so. The IDEA specifically allows for discussion of specific methodologies if there is evidence that the specific methodology is necessary for the child to make academic progress in the area of concern. To the extent you can show that a specific reading program, as opposed to research-based reading programs in general, are necessary for your child to make progress in the specific area you have identified, the specific reading program is an appropriate topic for the IEP meeting. In the absence of evidence that the specific reading program is necessary, you are certainly justified in seeking to discuss research-based reading that addresses the targeted skill, such as decoding. In any event, it is helpful to have outside clinical support for research-based programs to address the particular problem, or, even better, to have clinical support for the specific program that you are seeking.

If a child with a learning disability is clearly not doing well in public school, can a parent place their child in a private school and have the school system pay for it?

Dear Mr. Cohen,

My daughter has been struggling in school since day one. She went to an early childhood program at age four, was put in a mainstream kindergarten class with an aide, and then again for first, second, and third grade. Now in fourth grade they have placed her in the special education class mixed with fifth graders. There are about nine children in total and I still feel she is not where she should be. It seems that the mainstream class is too hard for her and the special education class is too disrupting. She also feels the same. Time is passing by and my child is not getting proper education according to her needs. She is classified as LD.

Do I have a right to put her in a private school for LD children and have the district pay for it?

Michelle

Your question seeks information about whether you have a right to funding from your school district for a private school for children with learning disabilities if the school district has not provided your daughter an appropriate education. There is no easy answer to this question and it is very much determined by the facts of the particular case.

Parents always have the right to put their children in private schools if they wish to do so at their own expense. There are several ways that a parent may obtain funding from a public school for placement of a child with a learning disability to a private school. First, the parent can inform the public school in advance of their desire for funding at the private school and secure the public school's agreement in an IEP meeting that the private school placement is necessary in order for the child to receive a free appropriate public education and that the public school will assume financial responsibility for the placement.

Where the public school does not agree to such a placement in advance, the parent may request a due process hearing in advance of the placement and seek a determination by a hearing officer in advance of the placement that the placement is necessary in order for the child to receive a free appropriate public education in the least restrictive environment. In order to do so, the parent must be able to prove at the due process hearing that the child is not making appropriate progress in the public school and that the child's needs can only be met in the private school.

A third option is for the parent to unilaterally place their child in the private school and seek reimbursement from the public school after the fact. However, in any situation where the parent is thinking of making a unilateral placement, the parent must provide the school district with notice in advance of the unilateral placement that they are making the unilateral placement in the private school, are doing so because they are dissatisfied with the program that the public school has offered, and are seeking reimbursement from the public school for the private school placement.

This advance notice can be provided to the school district in two ways: First, it can be provided to the school district at an IEP meeting, as long as the IEP meeting occurs prior to the child actually starting in the private school. Alternatively, this notice can be provided to the public school in writing as long as it is provided to the public school in writing at least ten business days before the child actually starts in the private school. Where the notice is provided in writing, it must indicate that the student is being enrolled in the private school, that the student is being enrolled in the private school because of dissatisfaction with the public school program and that the parent is seeking for the school district to assume financial responsibility for the private placement.

There are limited exceptions to the advance notice rule, but these exceptions only apply in circumstances where the parent did not receive information about the notice, could not understand the notice requirement because they were illiterate, or were faced with a genuine and medically documented emergency which required placement in less than the ten day period. Even where the parent provides advance notice of their intention to place the student in a private school, this only gives them the opportunity to seek funding from the school district. It does not give them automatic reimbursement from the school district.

In order to obtain reimbursement from the school district, the parent typically needs to request a due process hearing under these circumstances. In the due process hearing, they will be obligated to prove that the public school program did not provide a free appropriate public education and that the private school placement that they obtained does provide a free appropriate public education. Evidence supporting these arguments would include the child's lack of progress and/or regression within the public school program and clinical information documenting how and why the private school program is appropriate to meet the child's needs. Parents who are seeking to unilaterally place their children in private schools are generally well served to seek consultation from special education attorneys or knowledgeable advocates before going forward with the placement.

To what extent should children with disabilities be included in the school-wide and state-wide assessments for No Child Left Behind?

Dear Mr. Cohen,

I am a concerned special education teacher here in the state of Texas. We've been told that, according to the No Child Left Behind Act, all students in special education program by 2011 will have to take the required state tests according to the grade level that they are enrolled in – not their ability level (basically all special education students must be on grade level by this time, that's it, no exceptions). In our situation we had to administer benchmark tests this past nine weeks to our students, not at their ability level but at their enrolled grade level as per direction of our school district. In addition, for some of the students a small percentage of their overall grade for the nine weeks included these tests.

Is this legal? If it is, how is this backed up by IDEA, FAPE and is this legally following the students IEPs even with modifications. We work hard everyday to teach our students and we have high expectations for them. We want them to succeed and we push them to do more but they also learn differently and some at a different rate. Isn't that the whole purpose of special education? We want to make sure that we are also legally doing what is right for our students.

Daniella

Dear Daniella,

Your question addresses the extent to which children with disabilities must be included within school-wide and state-wide testing for No Child Left Behind. Your description suggests a requirement that all students with disabilities be tested under all circumstances. Under No Child Left Behind, children with disabilities are a specific targeted group for inclusion in state-wide testing in order to insure that school districts cannot artificially inflate their students' performance on state-wide testing by excluding large numbers of children with disabilities.

However, students with disabilities are allowed to receive various accommodations while participating in the state-wide testing. In addition, limited number of students with disabilities may be waived out of the state-wide tests if they are provided with alternative assessments that have been approved for this purpose. In no event may a student be waived out of all assessments, but a limited number of students may be waived out of the regular testing.

Can slow learners receive special education services?

Dear Mr. Cohen,

My second grade daughter was recently tested for a learning disability, and diagnosed as being a "slow learner." This, as I understand, means that her below average IQ is commensurate with her learning; however, she is not mentally retarded. Not only am I at a loss for what to do, she does not qualify for the school's special education services. I have asked that she still receive services – would it be legal for a school to place her in a special education classroom even though she is not a special education student if I allow it?

Thank you so much for your time.

Julie

Dear Julie,

Your question relates to the status of a so-called "slow learner" in relation to eligibility for services, as well as whether the student can receive special education services, although not technically eligible, if you consent. First, you should be aware that it is often the case that determinations are made with respect to whether a child qualifies as having a learning disability based on a comparison of full-scale IQ scores to the global achievement test scores. Often, when a qualified evaluator looks at the verbal and performance scores of the IQ test, the sub-test scores, and specific or discreet areas of the achievement tests, it turns out that there are significant variations in terms of the child's abilities, including both strengths that place them above the full-scale IQ level, as well as weaknesses that place them at a statistically significant level below what the IQ scores indicate should be their expected performance. In order to make these determinations, it is important to have a qualified psychologist review the testing, and perhaps have additional testing conducted, if needed.

However, parents can make a preliminary assessment that there may be indicators of a possible learning disability simply by looking at the variability of sub-test scores to determine if there is a range of performance across skill areas suggesting that there are strengths and weaknesses that are not reflected in the over-all scores. In addition, further testing may utilize specific processing tests, which identify discreet areas of neurological difficulty with respect to learning that may not show up on the typical evaluation conducted by a school district. For example, there are specialized tests to assess decoding, tracking, word retrieval, memory, comprehension, and a variety of other processing tasks, which may not be completely covered by the typical school test battery.

In addition, you should be aware that the child may qualify based on other disabilities, depending on what other issues are present. As my answers to several of the prior questions indicate, there is also frequently a fudge factor built into the LD criteria, which allows the staff and parent to make a determination that the child qualifies based on functional difficulty, even if they don't meet the technical criteria. As indicated above, the new IDEA going into effect in July not only changes the criteria for learning disability, but also expands the areas of impairment to include functional and developmental impairment as well as academic impairment. These will provide additional basis for potential services.

Finally, you asked whether a child could receive special education services even though the child is not a special education student, if you consent. This is somewhat complicated, but the federal law does allow schools to provide services which provide benefit to non-special ed students, as long as the dollars are focused on special education students. If the parent consents to the provision of support services by special ed staff, there should be no legal reason why a child could not qualify for such services. Historically, this has been known as the "incidental benefit rule," which was designed to allow a situation such as a special education teacher coming into a regular education classroom teaching a small group of students, including both regular and special ed students.

What are your rights if your child has a learning disability but does not meet the school’s criteria to receive services?

Dear Mr. Cohen,

It has taken me over three years to get my 11-year-old daughter to be formally tested for a learning disability (dyslexia). I was only able to do so by paying to send her to a private school. On her first day, the teacher called me to ask me about my daughter and if she had been checked. I told her I had several meetings via phone and in person regarding my concerns, but was told my daughter did not need it. Fortunately, my daughter was tested and was -1.1. In my state a child must be -1.7 to receive any extra help in learning.

Every day is a struggle for my daughter, who is bright and learns by memory and tests orally now that we know where her strengths are. My concern is I cannot get any assistance for her because she is not in the county school's range and I can no longer afford private schooling. Public school will not recognize her needs due to her score and I cannot accept my daughter having a lesser education simply because she is not within the school's guidelines but clearly shows she does have a learning disorder. What can I do as a parent to help my child have a quality education versus just barely getting by and/or slipping through the cracks?

Thank you for your time and assistance.

Lisa

Dear Lisa:

Your question raises a painful, but important, problem with respect to children who fall through the cracks, because they have a level of impairment which affects their functioning at school, but may not meet the eligibility criteria for the school system. First, without knowing the specific regulations for LD of your state or your school district, you should be aware that most eligibility criteria include some mechanism for exercising subjective judgment to conclude that a child's impairment, even if not sufficiently discrepant from a statistical standpoint, nonetheless has a sufficient impact to warrant the provision of LD services. You should check your state's criteria for learning disabilities and request a copy of your school district's policy, in order to determine what the subjective factors are in making the eligibility determination. If, as I suspect is the case, there is some "fudge" factor built in to the eligibility process, you may make the argument that the level of need warrants services even in the absence of technical qualification.

In addition, you should be aware that under the new IDEA Reauthorization, effective July of 2005, schools are no longer required to use the discrepancy formula for purposes of determining eligibility for special education. Instead, they may provide research-based reading and other learning intervention in order to assess how the child responds to systematic reading instruction. If the child has difficulty despite the provision of research-based instruction, the child may qualify for special education services even in the absence of satisfying a pre-existing discrepancy requirement.

In addition, you should be aware that the new IDEA requires schools to address not only the child's academic difficulties as measured by achievement tests, but also to address the child's functional difficulties. It is apparent that many children with learning disabilities have functional problems with reading, even if they don't meet the technical criteria for learning disabilities. While I believe that the inclusion of functional impairment is undefined in the law, the intention of its inclusion was to address not only how the child responded with respect to academic tasks, but how their disability affected their day-to-day functioning at school. If a child has difficulty with reading, whether decoding, fluency, comprehension, or in other ways, and that functionally limits his or her ability to participate successfully, or causes them difficulties in terms of fatigue or self-esteem, that may well be a basis for services even if the child doesn't technically meet criteria as having a learning disability.