Legal Briefs from Matt Cohen

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

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.

(June 2009)

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

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.

(June 2009)

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

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.

(May 2009)

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

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.

(December 2008)

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

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.

(October 2008)

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

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.

(September 2008)

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

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.

(August 2008)

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

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.

(July 2008)

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

(June 2008)

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

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.

(March 2008)

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

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.

(December 2007)

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

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.

(December 2007)

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

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.

(November 2007)

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

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.

(October 2007)

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

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.

(August 2007)

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?

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.

(August 2007)

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

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.

(April 2007)

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

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.

(March 2007)

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

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.

(March 2007)

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

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.

(February 2007)

For more information on this topic, please visit the Special Education section in LD InDepth.