Legal Briefs from Matt Cohen
The following are past questions and answers from Matt Cohen on this topic.
I have twin daughters that are in second grade. Both have a vision impairment called nystagmus. Both of my children see 20/40. One of my girls can see just about everything but has a little trouble seeing things written on the board. Because of this they are wanting to put both my children in special ed., and the teacher is harassing me to sign them into the special ed. program. Is there anything that I can do?
There are a wide variety of assistive technology systems and/or accommodations that can help students with vision impairments and may be sufficient to allow your daughters to function well in a regular education classroom. Unless there are important educational reasons for either of them to be in a special education class, difficulty seeing the black board does not seem like a reasonable basis for that recommendation.
You should ask for an assistive technology evaluation to help identify visual aides that could be used in the classroom, along with accommodations, such as having the teacher provide your daughters paper copies of what is being written on the board or other means to allow them to see what is being done.
I have an 18-year-old daughter who has been placed by our district in a private school for children with learning disabilities for the last six years. She has complex learning disabilities, emotional disabilities, and other health impairments. She will not be receiving a diploma at the graduation ceremonies, and so we are looking to the district to continue support at a post secondary school. The district feels does not want to do that. However, the rest of the IEP team, including her private counselor and psychiatrist, do not agree.
We have put in a written letter that we do not agree with the district decision. What can I do if the district does not want to pay for a post secondary residential school placement, but the rest of the team feels it is necessary and appropriate?
First, while all participants in the IEP team meetings are theoretically part of the IEP team, the school staff controls the decision of the district. If the parents and their outside consultants disagree, this should be documented. While your letter serves as documentation, in most states it does not have any legal impact in forcing the school to do what you want. However, the parents' recourse is to request a due process hearing to challenge the school's decision. If the post- secondary school is a special education program approved to provide ongoing services to students in need of continuing special education services, there will be a greater chance of getting funding from the school or a hearing officer. If the school is a regular post- secondary school, it is very difficult to get public school funding for such placements.
You should also be aware that if your student accepts the regular education diploma for high school, the school district's responsibilities are terminated in most states. The only ways to maintain school district responsibility under these circumstances, assuming they are not willing to delay graduation, are 1) to request a due process hearing prior to graduation. This generally has the effect of blocking the graduation until the administrative hearing process is concluded; or 2) pursue compensatory services after graduation. However, this will generally require a due process hearing as well. You should seek help from a knowledgeable special education attorney to assess your position.
Do you have any information on whether or not schools find students eligible for special education services when their primary issue is executive dysfunction? If so, what category are they found eligible under (i.e., learning disability, not otherwise specified, etc.)?
There are 13 categories of disability under the IDEA. Executive functioning (EF) is not listed as one of these categories. Further, EF disorder is an evolving condition that is not yet fully recognized within the medical community. Generally, it is currently seen as a problem related to or under the constellation of symptoms of ADHD. If your child is diagnosed with ADHD, it would typically be considered under the Other Health Impaired category of IDEA. Even if there isn't an ADHD diagnosis, if is the EF disorder is diagnosed by competent mental health professionals, it may fit under the Other Health Impaired category if the clinician can demonstrate how it results in limited ability to attend to educational tasks due to excessive distraction or attention to other things going on. It would be a less obvious fit under the Learning Disability category, unless it can be clinically documented as a processing disorder impacting one of the basic processes of learning, e.g., reading, writing, etc.
Even if the school does not feel your child meets criteria for IDEA eligibility, if you have clinical documentation of the EF disorder and evidence that it substantially impacts one or more life activities at school, your child may be eligible for a Section 504 plan and could get accommodations for the EF disorder under the 504 plan. Much or all of what your child may need could be provided under a 504 plan as well as under an IEP.
What does "failure to educate" mean? Does a person graduating high school with a 6th grade reading and writing level fall into this? Also, what happens if a school lost a part of your child's records? Can a person still be helped if he is out of school and is now 19?
Thank you.
Dear Louise:
There is no single definition or standard for what "failure to educate" means. In fact, the more technical language would be "failure to provide a free appropriate education." This language has been the source of hundreds of law suits and legal decisions since the special education law was passed in 1975. Although it would seem that a student that graduated from school with 6th grade reading and writing skills did not receive an adequate education, this is not automatically true. Each child is different. Some children's disabilities may be so severe that even with an excellent education, they may never be able to read or write at the sixth grade level.
On the other hand, some children with disabilities may be behind in reading and writing and, with appropriate instruction and remediation, may be able to reach grade level in those subjects. You need to get more information about the nature of your child's disabilities, their cause, the types of programs that should have been provided to address them, and whether they were capable of more progress if they had been provided those programs.
Even if a student has graduated, they may be entitled to seek more services, generally by requesting a due process hearing, if they can prove that the school failed to provide them an appropriate education. However, this is complicated to prove. In addition, federal and state laws provide "statutes of limitations" which require that if you are dissatisfied with something the school did or failed to do, you must request a hearing within a specified period of time. These deadlines vary by state. If a school lost part of your child's records, this is by itself a violation of both the special education law and federal and state records laws. You should consult an attorney knowledgeable about education and special education law for consultation about your rights in relation to these problems.
Is there a legal definition for special education case manager/IEP case manager? If so, what is the legal job description/duties?
Dear Linda:
There is no legal definition or even requirement for a case manager in the federal IDEA (special education) law. It may be found in some states' special education laws, but more often it is just an administrative decision by the school system as to how they organize the special education program to ensure that one person is coordinating the services for each child that is eligible for special education. However, the school's policies and job descriptions for case manager, if they use them, are a public record and should be provided to you if you request them in writing.
My child has severe dyslexia, as determined by a private evaluator. We are trying to get his school to provide services; however, this could take 30 weeks (losing an entire school year). I have been looking everywhere in my county for tutors, etc. to help him in the interim as long as I can afford it, but am finding nothing. Do you have any recommendations on where to turn? I live in Palm Beach County, Florida.
Dear Michelle,
Although in reality, getting a child determined eligible for special education can sometimes take a long time — even 30 weeks — but by law, this should not occur. You should check your state's special education regulations for the specific timeframes from date of referral to completion of consent to completion of the evaluation.
In any event, if you decide you need to secure tutoring services in the interim, you may consider providing the school with a "unilateral placement" letter, notifying them that you are obtaining the private services due to their failure to provide appropriate (or any) special education services and that you want them to pay for the private services. Giving this letter does not obligate them to pay, but may give you a basis for pursuing reimbursement from them.
As to tutoring services in Florida, I suggest you contact the Learning Disability Assn. of Florida, as well as the federally funded Parent Training Center in your area for ideas for sources of tutoring. You can find the closest parent training center to you at www.taalliance.org.
Hi Mr. Cohen,
We have a 9-year-old daughter with many issues — she has ADHD, Tourette's, OCD, a specific learning disability in listening, extreme anxiety, and a new diagnosis of bipolar disorder.
Despite all this, she is extremely bright, and it has taken several years for the public school system to acknowledge her issues. She has an IEP under the categories of other health impairment and specific LD.
Last month school became too stressful for her, and the psychiatrist decided (with us, her parents) to remove her from school and let her have homebound schooling provided by the district. A new IEP meeting was convened, with all present agreeing to provide her with 15 hours per week of homebound services. That amount was ordered by her doctor.
Present at the meeting were the parents, both the special ed and regular ed teachers, and the special ed coordinator, all of whom agreed to the 15 hours. We have this meeting on tape.
This past week, the parent coordinator called to tell us the services would only be provided for three hours. The school did not provide written notice of this, just a phone call. Also, they did not amend the previous IEP with the new placement, even after we requested an updated IEP. We have protested by phone and via email saying that we do not agree with the reduction in hours, and still want the 15 promised.
My question is, can they legally be required to provide 15 hours? How can we get them to honor their commitment made at the IEP meeting? This is not FAPE. Please help us!
Dear Leigh:
States have differing requirements for the minimum level of services required for homebound instruction as a matter of law. You should check your state's special education rules to determine this.
However, if the school wrote an IEP providing for 15 hours a week of service and an administrator changed this after the fact, this is a unilateral change of service without an IEP meeting or your participation. You should immediately consult a knowledgeable special education advocate or attorney and may need to file a due process hearing immediately in order to block the change in service levels.
As you did not receive prior written notice, you may also be able to force a return to the promised levels on the basis of "stay put" placement, even if some time has passed since this unilateral change was implemented. Again, you need legal consultation to follow up on this.
My son has Asperger's and learning disabilities. He is 17 years old and will graduate from high school in the Spring of 2010. My son has had an IEP for years. There are numerous accommodations listed on his IEP.
My question is, once he moves on to a two- or four-year college, will his IEP still be of any use to him? Will he get any help?
Dear Mary:
Once a student graduates from high school with a regular education diploma, the IEP is no longer controlling. The IDEA/special education law has no legal force with respect to colleges or universities.
However, these institutions are required to provide reasonable accommodations pursuant to Section 504 and the Americans with Disabilities Act. The IEP will provide useful information to document the need for accommodations, but your son will need to contact the school's disability services office to present documentation of the disability and of the need for accommodations.
Under some circumstances, even if the student has met the technical requirements for graduation, if he or she still has significant unmet needs — such as in the areas of life skills, organizational skills, or social skills — he or she may be eligible for services beyond the twelfth grade year. But this would mean delaying graduation. In some instances, the transition plan could involve participation in community college courses with continuing support from the public school in various ways.
Can my son who attends private school have access to an IEP and LD reading resources at the public school in our district?
Dear Laurie,
Voluntarily enrolled private students have the right to be evaluated by the public school to determine if they have a disability. If so, the school may offer them a "service plan," though the public school has lots of discretion about what services they offer to private school students.
If you wish to have an IEP to be implemented by the public school at the public school on a part time basis, you may request this, but the public school is not obligated to accommodate the scheduling and other issues that may be most workable for your student in relation to their participation at the private school.
Is it appropriate to have a pre-IEP meeting, where teaching staff meet with the special education teacher (no parent involved) to discuss the student's progress with goals and to determine whether the student deserves a diploma?
Dear Ken:
School staff are allowed to meet prior to an IEP meeting and discuss the student's progress, draft proposed goals, and consider options. They are not allowed to predetermine the content, placement, or outcome of the IEP and must have an open and full discussion, including reasonable opportunity for input from you and open consideration of your concerns.
Unfortunately, it is sometimes the case that the pre-meeting does result in a pre-determination in fact, but that is hard to prove. Things to look for include the refusal to give you a chance for input, refusal to consider your input, failure to discuss options other than those previously discussed in private by the team, etc.
Dear Mr. Cohen,
My son is 15 years old and in tenth grade. He has been on an IEP for LD/ADHD since first grade. He still has not reached his grade level in reading. He is having problems in math, which was his strong point in elementary and middle school.
All of his state-required test scores are below-level. He's not committed to or focused on his academics. He is always getting into trouble and the school is always calling me with negative reports. He's not on medication; he states it makes him depressed so we discontinued it and the doctor agreed.
My question is, what are my legal rights in terms of putting him into a private school and the state paying for his education? Our property taxes are very high for education here in Georgia. The public school system here is not good, in my opinion, and I feel he is falling between the cracks. It seems they are pushing him along with the No Child Left Behind Act.
I have tried putting him in another high school and was denied the transfer. He is on a block schedule and that is not working out for him. We have IEP meetings and we've set goals and have all these resources and my son is still failing classes.
I feel I have done all I can for him but I will not give up on my son's education. How can I get any financial support for putting my child in a private school, and, if possible, a military academy? Thank you.
Dear Janet;
I think you need good legal help. If you go to the COPAA search engine, you will find there are a number of excellent special education/disability lawyers in Georgia.
Among other things, it sounds like your son's evaluations and program are inadequate. There are circumstances where private school funding may be the responsibility of the public school. However, it is unlikely that a military academy would qualify.
In addition, there are very important rules requiring that you give notice to the public school of your intention to place your child in the private school because the public school is not providing a free appropriate public education and you want the public school to pay for it. This notice should be given to the public school in writing at least 10 business days prior to making the placement.
What if a school system does not meet the requirements for re-evaluation? I understand that a re-evaluation must be done within three years of the last evaluation. What recourse do we, as parents, have if that deadline is not met?
Dear Elizabeth:
There is no explicit remedy provided in the IDEA for failure to complete a three-year evaluation in a timely way. You have the option of filing an administrative complaint with the state Department of Education or requesting a due process hearing.
You might also request an independent evaluation at public expense on the grounds that the absence of an evaluation was equivalent to an inadequate evaluation. Doing so might well trigger the district to quickly decide to conduct an evaluation after all.
My daughter is a senior and she was diagnosed with a learning disability at the end of 2006. Her IEP was written by the school and although most teachers honor it, for some reason we always run into issues with the math teachers. My daughter is really behind in math and reading.
Her IEP says she has extended time for testing but her math teacher will only allow her to finish pages that she has not started. The teacher states that my daughter is not allowed to go back to the other pages. If you have extended time you should be able to utilize the rest of your time taking the test however you like.
It just seems like the teacher is reluctant to honor the IEP. I spoke to the IEP team about the teacher and the response was, "Oh she is an excellent teacher."
This is really difficult for me to understand. It seems as though there is something completely wrong with this picture.
Dear Chalina:
Teachers do not have the option to selectively implement IEP accommodations, whether they are good teachers or not.
As a first step, you might try to add language to the IEP to clarify exactly how the extended time is supposed to work and that it is supposed to be provided in math, as well as other courses. This would eliminate any potential for ambiguity. You may also consider going to administrators in the school or school district to express your concerns, as the IEP team may not be able to address the issue or feel comfortable doing so.
If those steps are unsuccessful, you also have the options of filing a request for mediation or a due process hearing, filing a compliance complaint with the state department of education, or filing a complaint with the Office for Civil Rights.
Dear Mr. Cohen,
My son's middle school failed adequate yearly progress three years straight. He has an IEP, and a diagnosis of Asperger's.
I have identified a school in a nearby town that specializes in educating children like my son. I have requested placement on the grounds that the school did not meet the NCLB criteria, and that he has not shown progress as he should. However, the school is denying me the ability to send my child out of district, stating NCLB does not apply to IEP/special education, and that I can only send my son to "another school" if and only if there exists another school within our district.
My question: How does NCLB apply to IEP/IDEA and FAPE? If my school did not meet NCLB, do I have a right to send my child out of district to another school that performs better, especially one that specializes in educating children with Asperger's?
Dear Dawn:
Under NCLB, there are circumstances where students at a school that is consistently failing to make adequate yearly progress can request transfer to a school that is meeting state guidelines. However, the transfer to an adequately performing school would be based on the overall school failure and would allow transfer to an adequately performing school. It would not trigger an automatic right to transfer to the school with the program for children with Asperger's.
On the other hand, if your child is not making adequate progress on his IEP on a consistent basis, the school is obligated to provide your child with an appropriate education. If that can't be accomplished at the current school, they are obligated to provide a program that does, whether within the district, or, if not available in the district, potentially in another public or private school outside the district.
The right to placement in a special program under IDEA due to the child's inability to receive an appropriate education is not limited or governed by the transfer provisions of NCLB.
I work with kids with special needs in grades K-8. When a child is exited from an IEP, parents often see this as a good thing intellectually, but emotionally they feel frightened.
"Where is my support system going?" they wonder, and, "What will I do now that I have no legal recourse?"
Do you have resources or suggestions for helping the parents transition?
Your question addresses parental concerns about the absence of a safety net when their child's special education eligibility is being terminated because the child has made adequate progress.
First, it is possible for a student that is making good progress and functioning at a level suggesting special education may no longer be needed to have an IEP that gradually reduces the level of service prior to formal termination. This can reduce the risk that the student goes from a needed level of support to no support and suffers regression or other problems as a result.
Another option for students in these situations is for the student to shift from an IEP to a 504 plan as an interim measure. This also allows for some greater degree of protection and/or attention as the student shifts from a higher level of special education service to regular services.
Finally, in many schools, a student should be able to receive a variety of study supports and other accommodations available to regular education students, even in the absence of formal special education eligibility or 504 status. In addition, if the student begins to experience serious problems after eligibility is terminated, the parents can request that the child be reevaluated for renewed special education or Section 504 eligibility.
My daughter has a learning disability in math. She has an IEP that addresses this. She failed math this last school year so she went to summer school and I was told she was failing math there. I mentioned to the teacher that she has an IEP and was told that they did not have to address the IEP during the summer because they have a skeleton crew and don't have adequate staff. Can you please let me know if this is legal? They have failed her in school because they would not provide her help.
Dear Stephanie:
First, if a child is not making adequate progress and loses progress during breaks, he/she is entitled to receive extended school year services over the summer to address the disability. These services should be spelled out in the IEP and should be sufficient to allow the child to make progress.
Even if your daughter was in regular math class, if she has an IEP due to her math disability, it would be likely that she would be entitled to accommodations and other assistance to help her with the math in the regular summer school program.
Further, given that she has an IEP, you should question the adequacy of her math instruction during the regular school year, as the IEP should be designed so that she will make progress. If she is failing, that is an IEP issue, and the IEP team should determine why she is failing and what is needed in order to allow her to make adequate progress.
How should a school be documenting accommodations or modifications that affect a student's grades? Should they be noted on report cards/permanent records?
Dear Debbie:
When a school is providing accommodations or modifications that affect a student's grades, these accommodations should be noted in the student's IEP or Section 504 plan. As a general matter, however, school are not supposed to share information on a transcript or a diploma that has the effect of disclosing that the student has a disability or flagging him/her as a special education student, unless the educational program has been modified to such an extent that the student is not receiving a regular diploma.
Under the new IDEA laws, how long does a school system have to respond and/or test a child if a parent requests testing? Is the school required to test?
—Cindy
Dear Cindy:
The time period within which a school must respond to a parental request for testing is determined by state law. Schools are not obligated to test a child just because a parent requests testing. However, whenever a parent submits a request for testing, the school district is obligated to inform the parent of whether the school will do the testing or is refusing to do the testing. If the school is agreeing to the testing, it must explain to the parents what testing is proposed and obtain the parents' written informed consent to the testing.
If the school refuses to do the testing, it must inform the parents of the decision to refuse to test, the reason for the refusal, and that the parents have the right to request a due process hearing to challenge the refusal to test. The IDEA requires that schools complete the evaluation within 60 days of receiving parental consent for evaluation, unless state law specifies some other time frame. You should check your state's special education law for the timeline for testing from the date of consent and whether the state law provides a deadline for responding to the parents' request for testing.
My 9-year-old son has autism and is in an out-of-district placement. We live in a bad district for students with autism, so I fight to keep him out-of-district.
He's now the highest-functioning student in his class. My district keeps ignoring my request to have his paperwork sent to a school that is teaching more appropriate reading and math.
There was very little improvement from when he was reevaluated last October — almost no gain. How can I make them send his paperwork to other schools that may be willing to accept him? I don't want to wait until next October for reevaluation, but want him possibly setup for a new school if they have availability in September.
—Audra
Dear Audra:
The primary legal issue in any dispute over the adequacy of a special education placement, whether in the school district, in an adjacent public school district, or in a public school funded placement in a private special education school, is whether the placement is providing the student with a free appropriate public education (FAPE).
You have raised a variety of concerns indicating that your child is not receiving an appropriate education and that there is an appropriate education available in other schools. The school district is obligated to show that the program offered provides FAPE, including that the program is based on scientific peer-reviewed research to the extent practicable.
Unfortunately, because the legal standard for FAPE requires that the program be reasonably calculated to allow the student to make meaningful progress, but not the most progress, schools can often argue that they are providing FAPE, even if the program is much less effective than other options.
At the outset, you may want to ask the school for information that supports that the program they are providing is a research-based program. Beyond that, you may need to gather information that documents that your child is making little or no progress, particularly in comparison to what he may be able to accomplish, taking into account his disability.
It may also be helpful to obtain outside clinical evaluations of your student, particularly psycho-educational evaluations, to determine if your child is making appropriate progress and to evaluate whether the school's program is adequate to address your child’s needs.
As part of this evaluation, it would be important for the clinician to review school testing, IEPs, and progress reports and, if possible, to actually observe the student in the class.
My son is 9 years old and is in special education. His IEP states that he will not take math, science, or social studies. I would like to know if this is the process for all children who have difficulty learning to read.
The special ed teacher told me that her students never learn to read over a fourth grade level. I asked if he was mentally retarded and if that is why he won't have a successful school education. They told me it is possible. But at home we find that he has the ability to learn and remember things as long as we explain it to him.
His problem is reading and most of the schoolwork requires that he read but he cannot retain what he reads. If he doesn't have MR then why would they keep him from "fun" subjects like science and math? Those are things he likes. In the regular classroom they say he requires too much teacher time because they have to explain things and read him directions.
I am so confused and even if he is never a good reader there are many other ways to teach.
—Lorraine
Dear Lorraine:
First, if you have questions or disagreements with the school about your child's disability label, level of functioning, or capability of learning, or the reasons that he may not be making appropriate progress, you may want to consider either requesting a reevaluation from the school district or seeking a private psycho-educational evaluation.
I am also concerned about any statement by a teacher that his/her students "never learn to read over a fourth grade level." Even children with severe disabilities are sometimes capable of learning beyond expectations.
If a student is not severely cognitively impaired, such statements or limitations are especially inappropriate and often establish self-fulfilling prophecies. Each student's educational program should be individualized based on his/her needs and capabilities. A one-size-fits-all rule is not consistent with the requirements of IDEA or Section 504.
In addition, students should not be excluded from academic subjects by rule or practice. This also must be individualized. In fact, students should be mainstreamed to the maximum extent appropriate, including the provision of supplemental aides and supports to the extent necessary to allow the child to be successful.
Unfortunately, in this difficult economic period, budget concerns are becoming a bigger factor in many schools' decisions about placement and services. Despite this, the IDEA still requires individualized programming in the least restrictive environment appropriate to the student, including use of supplementary help to facilitate participation in regular education.