Legal Briefs from Matt Cohen

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

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.

(October 2006)

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

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.

(October 2006)

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

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.

(February 2006)

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

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.

(February 2006)

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

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.

(February 2006)

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

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.

(February 2006)

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

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.

(February 2006)

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?

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.

(February 2006)

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

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.

(February 2006)

Can slow learners receive special education services?

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.

(February 2006)

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

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.

(February 2006)

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