Legal Briefs from Matt Cohen

Dear Dawn:

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

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

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

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

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

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

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

Dear Stephanie:

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

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

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

Dear Debbie:

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

Dear Cindy:

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

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

Dear Audra:

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

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

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

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

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

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

Dear Lorraine:

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

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

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

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

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

Dear Julia:

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

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

Dear Kathleen:

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

Dear Gina:

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

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

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

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

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

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

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

Dear James:

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

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

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

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.

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.

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.

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.

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.

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.

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.

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.

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.