Legal Briefs from Matt Cohen

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)

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

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.

(February 2007)

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

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

(February 2007)

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

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.

(February 2007)

Is the school required to test a child for dyslexia?

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.

(October 2006)

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?

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.

(October 2006)

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

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.

(October 2006)

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

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.

(October 2006)

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

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.

(October 2006)

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

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.

(October 2006)

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