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Legislation & Policy

The following are past questions and answers from Matt Cohen on this topic.

Our school district has decided to discontinue services for our 18-year-old daughter. What steps can I take in challenging this decision?

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.

Are there legal resources for individuals with disabilities who run into trouble with the law?

My 18 year old son has recently run into trouble with the law. I am having a hard time getting his attorney to understand that his ADHD and learning disabilities make him vulnerable to "talking without thinking." His issues with concentrating, focusing, and his impulsiveness also make things more difficult. I would like to find someone to work with my son who understands his disability and its impact on the situations he has gotten himself into. Are there legal resources for individuals with disabilities who run into trouble with the law?

Unfortunately, many criminal lawyers are not very familiar with disabilities and their impact on behavior. It would be especially hard to find an attorney with expertise in ADHD and LD. It is also important to know that, while state laws vary, unless a defendant lacks the mental capacity to understand right from wrong or to control their behavior due to insanity or severe cognitive disabilities, disabilities such as ADHD may not be a legal defense for the action but may be relevant as a mitigating factor in determination of the sentence.

To find a knowledgeable criminal lawyer, you may be able to get assistance from the local Bar Association or get referrals from the local public defender's office. If you are already involved with clinicians working with your son that are knowledgeable about ADHD, you might try to arrange for the clinicians to consult with the attorney. The clinicians may also be familiar with attorneys that they have worked with before that are already familiar with ADHD.

My child has difficulty focusing, and administrators at his private school do not want him to return to the program. Is this legal?

My child's private Pre-K Catholic school has told me that he has problems focusing. I have been working with them on this. I consulted my pediatrician, and I have finally gotten our Board of Education to have him evaluated. They first told me of the issue at the end of September, and we have just been able to get the evaluation scheduled for February.

The school has asked me to remove my child from the Pre-K class. Is this legal?

Dear Michelle:

Your question is somewhat confusing. If I understand it correctly, there may be two separate legal issues. First, it appears there was a long delay between when you requested an evaluation from the public school and when they provided it. Generally, public school evaluations should be completed within sixty school days of the date that you signed a formal consent for evaluation.

Unfortunately, with respect to the Catholic school deciding to remove your child, the federal disability laws exempt organizations that are religiously controlled, unless they receive federal financial assistance. You may need to consult a disability lawyer in your area to investigate the situation further. In some states or cities, the local disability rights laws do apply to religious schools, even though they are often not covered by the federal disability laws. However, this varies from place to place.

What is being done in the legal community to advocate for children with disabilities?

There are law firms who are teaching school districts how to find loopholes in the Americans with Disabilities Act. Parents are having to drain their already depleted bank accounts to defend their children's rights. Tax payers don't want to pay for services for the disabled adults in their community, but they want to discard the rights of children with disabilities to get the tools to become high functioning adults. Seems a bit hypocritical to me. Society wants the word "disability" eradicated from society so they don't have to come to terms with their imperfections. This is far more detrimental to our reaching our full potential than the disability itself. What is being done in the legal community to combat violations?

Dear Christopher:

I agree that there is a huge gap between what the law requires and how it is implemented. Sadly, the burden is primarily placed on the person with a disability or their family to advocate for their rights under both laws. In most cases, the ability to effectively enforce these laws is difficult, even with a knowledgeable attorney. This is even more difficult because there aren't enough attorneys familiar with these laws. Some work for not-for-profit agencies and are often overloaded, and others are in private practice and, as a result, typically have to charge for their services. There is much work still to be done to make the system work they way we want it to. This will require personal, political, and legal advocacy, certainly, but it will ultimately require our society to recognize that we need to change our attitudes about people with disabilities.

There are a number of organizations that work on disability issues on a national level that are trying to address these concerns. These include the Council of Parents, Attorneys and Advocates, the National Disability Rights Network, the Disability Rights Education and Defense Fund, the Bazelon Center of the American Bar Association, and the Public Interest Law Center of Philadelphia.

Can a high school require that a student with LD declare the disability on college applications?

Does a high school have a legal right to mandate that a student with a learning disability declare the disability on college applications? Isn't there a law to protect a student's privacy?

Dear Joel:

I do not believe it is legal for a state to require that students disclose that they have a learning disability on applications for college. The only basis for disclosing the disability is when and if the student decides to request accommodations based on the disability.

What can I do if I've been denied SSI benefits for my daughter's physical disability? Should I get her tested for LD?

I have a 4 year old with hydrocephalus and a ventriculoperitoneal shunt. I've been submitting applications for Supplemental Security Income (SSI) but have been denied all three times.

I recently started to notice that my daughter writes words, numbers, and her name backwards. No matter how many times you show her correctly, she keeps doing it backwards. I have called hospitals to see if there are tests for her but all I've been getting is a call back three to six months later. I really need some advice or even a lead on where to go. Thank you.

Dear Aresenia:

You need to consult with a knowledgeable SSI disability appeals lawyer concerning the possibility of filing an appeal of the denial of benefits for your child.

There are several organizations that represent lawyers that handle SSI cases. You can do a Google search or contact the American Bar Association Mental and Physical Disability Law/Bazelon Center Web site for a list of lawyers that do disability cases.

With regard to child having trouble with reversing letters and numbers, this is often reflective of the presence of a learning disability. You may want to consult with a clinical psychologist or neuropsychologist for evaluation of your child's reading and writing to determine if there is a problem with the way her brain processes information.

Many hospitals, especially children's hospitals and hospitals with medical school affiliations, have clinics that conduct psycho-educational evaluations. However, you should be forewarned that many hospital clinics may use medical criteria that are different than the eligibility criteria used by the schools. Therefore, it is important to make sure that the evaluator is familiar with the special education criteria for LD, as well as the clinical criteria.

Can a school change the services agreed upon in the IEP meeting without consulting the parents?

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.

Is an IEP applicable once a student graduates from high school?

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 local public school?

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.

Can the school staff hold a pre-IEP meeting without the parents?

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.

Will the public school system pay for my son to attend a military academy?

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.

How can I help my adult daughter get an accommodation or exemption on her math requirements so she can and become a teacher?

My 23-year-old daughter has a well-documented, severe, and longstanding math disability. She has been told that to earn a degree in early childhood special education and to teach with a certificate in New Jersey she must pass two semesters of college-level algebra.

She is in the process of failing remedial algebra again. Can you suggest any agency or way to try to get an accommodation so that she can graduate college, take the Praxis (required exam for teachers), and teach? She has very strong verbal skills and is capable of all of the academic and practical work required for early childhood education.

It has been my experience that even typically developing preschoolers do not have to learn to do quadratic equations. I am not sure why the teacher must demonstrate that competency to teach preschool math. We appreciate any suggestions you can offer. Thank you.

Dear Jane:

I suggest that you contact the state agency responsible for teacher certification. They should have a procedure for granting waivers or accommodations for various requirements for certification. They may feel that these courses are fundamental to the preparation for the job, but as you point out, this seems questionable.

They should also have an appeal procedure to address what to do if they refuse to make an exception. In order to assure that you follow the right procedure, you and your daughter should consult with a knowdledgeable ADA/disability rights lawyer in your area for advice. You may get information on possible lawyers from COPAA, from the American Bar Association's Disability Lawyer Search engine, or by contacting the New Jersey Protection and Advocacy agency to get the New Jersey agency.

You may need expert support to make the point that the math skills being tested are not fundamental to the job for which the license is being sought. You may also be able to identify and propose other ways for satisfying the math requirement.

What recourse do parents have if a school does not conduct a three-year evaluation on time?

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.

What can I do when a teacher implements some IEP accommodations but not others?

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.

Can a paraprofessional service IEP minutes?

Who can provide IEP minutes besides the special education teacher in a resource program? Can a teacher's assistant service IEP minutes with direction from the special ed teacher? What is the difference between direct minutes and supplementary minutes?

Thank you!

Dear Lavonne:

As a general matter, the duties of teachers versus paraprofessionals are spelled out in state law. However, under both NCLB and IDEA, instruction must be provided by highly qualified teachers that meet state standards for teachers. Paraprofessionals may assist the teacher and student under the supervision of the teacher, but should not provide ongoing direct instruction themselves, particularly without direct ongoing involvement by the teacher.

If the IEP specifies a certain number of instructional minutes by a teacher, those minutes should be provided by the teacher.

If my son's school did not make adequate yearly progress, do I have a right to send him out of district to a school that will better meet his needs?

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.

What kind of "safety net" do parents have after their child has been terminated from special education?

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.

How can an adult with LD get accommodations on the ACT?

I have a daughter with LD. She is 31 years old and is trying to get an associates degree. What is keeping her back from continuing her education is not being able to pass the ACT reading and writing tests. The tests are given online and do not allow you to go back to correct or complete a page.

Is there a way that she can get the paper form of the test? Or is there a different kind of grading for adults with LD? She has 40 credits, so she is able to pass some of the courses but she is at a standstill now because of this test.

I have tried to get in touch with the National Center for Learning Disabilities here in New York to no avail. I would appreciate any help that you can give me concerning this matter.

Thanking you in advance,

Jennifer

Dear Jennifer:

If a person has a documented disability that requires accommodation in how testing is administered, he/she should request accommodation to the test agency. The individual will be expected to provide clinical documentation of the existence of the disability, the impact of the disability, the need for the accommodation, and the relationship of the disability to the requested accommodation.

Alternative test formats are often used to accommodate people with various types of disabilities. However, the request for accommodation must be reasonable. If the testing is all done online, some investigation would be needed as to how alternative testing could be done under appropriate, controlled conditions that would still accommodate her needs.

Further, there would need to be clinical documentation of why the particular accommodation in relation to the test format was necessary as a result of her disability.

Are summer school teachers required to follow a student's IEP?

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.

The school district wants me to use a curriculum that has not been effective for my students with special needs. What can I do?

I have been teaching for 39 years. I am currently teaching special education in South Carolina (it's my third year in the district).

For the past two years I have been teaching in a self-contained cross-categorical classroom (Tier III). I have used my background experience, knowledge, and personal funding to implement programming that has had very compelling test results.

I have not been using the programs required by the district that have already failed the students. This has resulted in a power struggle with district office and this school year I will be required to teach the district required programs. I have made every effort to work with district office and building administration to prevent certain failure for my students. As the district can require me to teach what they may, I want to know what data or avenue would best support myself and parents to provide the programming that will best meet the needs of the students.

How should this best be addressed with the least impact on the students? Would you please be specific to NCLB and IDEA? Thank you.

Richard

Dear Richard:

Your question addresses how to address the school administration's requirement that you teach students with disabilities using a curriculum or methodologies that have not been effective for them.

Under both No Child Left Behind, which applies to all students, and the IDEA, which applies specifically to students in special education, the schools are required to provide peer-reviewed, scientifically-validated instructional programs to the extent practicable. Equally important, under the IDEA, schools are required to provide specialized instruction, including adapting as necessary, the method, content, and mode of delivery of instruction to assure that the student's program is reasonably calculated to provide the student with a free appropriate education.

Assuming you have data on the ineffectiveness of the school's program (and the effectiveness of your methods), you could potentially file a complaint with the Office for Civil Rights for a violation of Section 504 (which also requires the provision of FAPE), you could file a complaint with the state education agency, or you could share information with the parents of your students to inform them about this information and their right to request a special education due process hearing.

You may also conceivably have a right to a grievance through your collective bargaining agreement, but that would depend on the language of the agreement. However, you may wish to get legal counsel before taking any steps that would lead to a dispute with the school administration.

Should accommodations and modifications that affect grading be documented on report cards?

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.

What rights does a teacher with a disability have?

I am a teacher with ADHD. What, if any, rights do I have? Where should I look for information on handling this successfully in the workplace? There are modifications for students but as far as I know nothing for teachers.

Dear Clara:

You are seeking information on your right to accommodations as a teacher with ADHD. Assuming you work for a public school, your rights are determined by the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, state disability laws, and your union contract.

As a general matter, people with ADHD that are otherwise qualified for their job are entitled to receive reasonable accommodations in employment when needed to address the impact of their ADHD on their ability to successfully perform their work. The Equal Employment Opportunity Commission has regulations and explanatory material on the rights of people with disabilities in relation to employment.

What can we put in the 504 Plan to make sure that my son is not punished for symptoms of his ADHD?

I am hoping that other parents also have this question. I am a Reading Specialist and I thought that I covered the bases with my son's 504 Plan, but I was wrong. He was forced to write his name repetitively on several occasions for forgetting to put his name his paper — that was until the teacher realized it wasn't working. Then she just made him miss part of his recess.

It was the end of the year and my hands were tied because it wasn't in his 504 that he couldn't be punished for this. I do not want him punished for anything relating to symptoms of his ADHD. How can I word this in his 504 to prevent this in the coming years?

I never thought a teacher would punish any child this way. I taught for 14 years and never felt it was appropriate for any child just by the very nature of punishment and reward. I can't help other children, but I can certainly make sure this doesn't happen to mine again.

—Andrea

Dear Andrea:

As a general matter, students should not be punished for academic problems due to their disability. However, your son’s Section 504 Plan, or those of other students, need to be specific and detailed in describing the student’s disability and the ways the disability impacts their academic and non-academic performance.

This sort of repetitive writing task is a throwback to educational practice decades ago, regardless of disability law. However, if the student is forgetting to do something necessary to complete an assignment, that should be identified as a problem area and should be addressed in the 504 Plan.

Under the IDEA, and implicitly under Section 504, schools should address both academic non-compliance and behavioral non-compliance through the use of positive behavioral interventions and supports as much as possible. For example, your son may need instruction on how to develop a routine for checking to make sure the assignment is complete, including having his name. An incentive structure might be helpful to motivate him to pay attention to this task.

It may also be appropriate for the plan to include that the teacher will monitor the assignments to verify that they are complete, rather than punishing the student. If there are actions being taken by the school that the parent disagrees with, these should be raised with the school. While the school may not agree, it is often helpful to include in the 504 plan both what the school will do proactively and those actions or interventions that the school should not do, such as excluding the child from recess.

Notably, the IDEA and Section 504 both provide protection not only in relation to academic activities, but non-academic and extracurricular activities as well. There may be an argument that the failure to appropriately accommodate the possible problem with work completion was also resulting in unfair exclusion from recess or other non-academic activities.

Is a student at a private, religious university protected against discrimination under the Americans With Disabilities Act?

An issue recently came up with a patient of mine whom I have been treating for ADHD since he was 9 years old. He is now 21 and transferred last year from a local community college where he was a straight-A student and had an accommodation plan to a private, Lutheran university. The patient is in a church music director program.

One faculty person at this private university started raising concerns midway through this past year about my patient's behavior during unstructured class time. The faculty member spoke with a counselor at the university to discuss this patient's goofy behavior.

Subsequent to this program, my patient went on a school-related trip with the teacher and she documented my patient's behavior every step of the trip so she could bring her complaints to the administration upon their return. All of the behaviors revolved around silly, "immature" behavior and never involved anything that was dangerous or illegal.

I have talked to my patient about his longstanding pharmacotherapy but he doesn't like how he feels on the medication when he's not tasked with studying. He also has a seizure disorder, so medicating him is tricky. The teacher has taken her concerns to the department and has suggested that my patient isn't fit for the director of church music program.

I know that this situation is likely different than it would be in a public university because of the separation of church and state. Does my patient have any legal recourse?

Dear Dr.:

As a rule, religiously controlled organizations are not subject to the protections of the Americans with Disabilities Act. If the school receives grants or direct financial support from the federal government, it may be covered under the non-discrimination provisions of Section 504 of the Rehabilitation Act of 1973.

Complaints against colleges and universities for disability discrimination can be made to the U.S. Department of Education, Office for Civil Rights, which investigates claims of disability discrimination and could determine if the school is covered by Section 504. If not, there may not be a clear basis in federal law to take action.

However, some state, regional, or local human rights laws or regulations cover religiously controlled institutions even if they are not governed by federal disability laws. The student may want to seek legal consultation from a knowledgeable disability law attorney in your area.

How can I get the school district to put my son in a more appropriate out-of-district placement?

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's IEP states he will not take math, science, or social studies. Is this permissible by law?

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.

Is a parent entitled to a written transcript of an IEP meeting that was recorded?

Are there any court decisions out there on the issue of whether a parent has the right to a "written transcript" of a recorded IEP meeting? Or is it left up to each party to transcribe a recording? How can a parent get a transcript instead of just an audio copy?

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.

Can a school deny a student assistive technology because he/she is not failing?

My 11-year-old son is diagnosed with ADHD and anxiety disorder. I am finally getting the opportunity for a Section 504 plan so that he can have some accommodations for completing tests, assignments, and homework.

My son's particular problem is in reading. It normally takes him one hour to read 10 pages of a fifth grade level book. His performance on the Maryland State Assessment (MSA) lead to him getting a 504. His teacher observed how slow he was reading and he did not finish the test.

I have downloaded Kurzweil 3000 and scanned in his books. (In case you are unfamiliar with Kurzweil 3000 it is a scan and read program that tracks each sentence in a higlighted color and each word in another as it reads.) The students are required to read five grade level books per quarter and he has not been able to reach this goal. However, he was able to achieve this goal easily this quarter due to the Kurzweil 3000. He reads 20 pages in 15 minutes.

The school is saying that provision of that software is not needed unless you cannot read at all. My contention is that my son should be provided whatever it takes to allow him to perform the same work in the same amount of time that is expected of his peers.

I do not want him having less homework and extended assignment/test time. That sets up a bad precedent for my child, expecting less of himself and expecting more from the system. It would be best if he could work independently just like his peers.

What is your legal opinion on this?

Dear Pam:

Children are entitled to be evaluated for the use of assistive technology, such as the Kurzweil scan/read program, if it is suspected that they may benefit from the technology. If it is determined that the assistive technology is needed for them to benefit from their education, it should be provided as part of the IEP.

The need for assistive technology should be based on the needs of the individual student and certainly should not be based on a rule that the student must be failing. In fact, the 2006 IDEA regulations explicitly stated that the fact that the student is getting passing grades or progressing year to year does not, by itself, mean that the student is receiving a free appropriate education. In other words, total failure is not a permissible prerequisite for receiving particular special education or related services.

My son has been struggling for three years and was held back but does not qualify for services. How can I fight this?

My son's school has seen him struggling all year long. He failed the Florida state standardized exam. As a result, he is now attending summer school. The school decided to evaluate him at the very end of the year, so there's nothing that can be done.

Further, I was advised by the school psychologist this week that although my son exhibits ADHD and a learning disability, he scored below average on some tests and a little above average on others, giving the sense that he's average. Therefore, no help will be provided by the school system next year.

Is there anything I can do to fight this? My son has struggled with school since kindergarten and is now in 3rd grade. He repeated first and may have to repeat third. Thank you.

Dear Maria:

Under the IDEA, school districts are responsible for "Child Find," which means that they must timely identify all children suspected of having disabilities that reside in their school district, determine if evaluation is needed, conduct needed evaluations with parental consent, and, if the child is determined eligible, assure that the child has an IEP within 30 days after the eligibility decision.

If your child was having problems for a prolonged period of time, it may be that the school violated the Child Find requirements by failing to evaluate your child in a timely way. In addition, it appears that the school may be using overly restrictive standards for assessing whether your child has a disability and/or whether the disability impacted his educational functioning (including non-academic performance).

The schools should not rely on any single test instrument in making its decision and must consider the child's functional performance, as well as the child's academic and test performance.

Is a child due compensatory services if his general education teacher was given his 504 plan late in the school year?

A general educator was given a 504 plan for a student three days before the end of the school year, which stated that the student is allowed extra time on assignments. Are 504 plans retroactive? Does the teacher need to go back to give the student extra time on past assignments?

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.

How can I address systemic problems within a school's special education program?

Dear Matt,

My son started ninth grade this past year and had an IEP for his writing disability. Before school started, I introduced myself and my son to the teachers and explained his disability, IEP, and how to contact me. Within one week, he began to fall behind and his resource teacher emailed the teachers to be sure they knew he was twice exceptional.

By late November, after many e-mails and phone calls, he was making D's and F's and was very upset. We found that his IEP was not the one that we discussed in the spring of 8th grade, and they weren't giving him any accommodations from the incorrect IEP either.

I had him transferred to another school at which he has thrived and made B's. I have asked that they change his grades from the first semester to reflect only his tests since that shows his knowledge of the subjects without penalizing him since he had no accommodations. They are probably going to change the grades, but nothing has changed in the process and other kids are still going to be affected. How can I pursue this to push them to correct the system for these other kids? Should I file a lawsuit or write a "letter to the editor"?

Thanks,

Gina

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.

Can a school ask parents for a "co-pay" to help cover services listed on the IEP?

My wife and I have a son who is 6 years old and has autism. The IEP team met and decided he needed a one-to-one school aide for next school year and this has been placed in the accommodations/modifications section of his draft IEP. Subsequent to the IEP meeting, the school system has told us that the aide is for behavioral needs, which is covered under the Comprehensive Services Act, and therefore we must pay a "co-pay" for this aide's services.

We have refused to pay a co-pay for this aid saying that the aid is identified on the IEP and the local school system is responsible for providing our son with a free and appropriate public education. Does the local school system have any authority to require us to pay for an aid that is for use in the school only and identified in the IEP?

Thanks,

James

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.

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

Can a school have teachers complete ADHD screening forms when a parent has not requested this? These forms were mailed to me by our area education agency and we had no prior notice that this would be happening.

I know that my daughter does not have ADHD. I do believe she has a learning disability and we are in the process of getting that diagnosed privately outside of the school. Can I have these removed from her file?

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.

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

What would be the best response to a school district saying that a parent should not be meeting with teachers to discuss (among other issues) accommodations for an upcoming IEP meeting? What should you do if the case manager has canceled your meetings with teachers before an IEP meeting? Is there a good way to change case managers in this instance?

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.

Can a student with a 504 plan be penalized for not passing state standardized tests?

Hello,

I am wondering if you could address the issue of the state standardized tests (PSSAs in my state of PA) being used as a requirement for graduation and how this applies to children with a 504 plan. Currently, my 13-year-old son, who has cerebral palsy, has a 504 plan in place. He does not have an IEP because the district evaluated him twice and did not find identifiable learning disabilities. However, we know he is VERY behind in math, and that written expression is very difficult for him.

He consistently tests at the Basic level on the PSSAs and will be placed in different classes starting next year because the district did not meet Adequate Yearly Progress. The classes are called "standards" classes and are specifically for students who test below proficient, like my son. Also, in order to address the AYP failure of the district, passing (scoring proficient) on the PSSA tests will now be a condition of graduation. This type of plan was struck down in Alaska in 2004.

I am also concerned that putting him in these special standards classes is a violation of what his 504 protection affords him, specifically this — children with disabilities must be educated with their nondisabled peers "to the maximum extent appropriate."

Your help is much appreciated.

Thanks in advance.

Sandy

Dear Sandy:

Your questions raises many issues, some of which are particular to your son and the way he is being treated and some are general in relation to the impact of the state wide tests.

In relation to your concerns about the fairness of the Pennsylvania procedure, you may get useful information from the Public Interest Law Center of Philadelphia, which is involved in many of these issues, and from your state's protection and advocacy agency. Your question also raises the important issue of whether the remedial regular education class is being provided in lieu of the development of a more appropriate special education or Section 504 intervention.

In addition, your description of the situation suggests that your son may also be improperly excluded from eligibility for special education services based on criteria that are inappropriate and/or misapplied to his situation and disabilities. Even without an IEP, he may be getting fewer protections and services then he should through his Section 504 plan. There are many things that can and should be offered through a 504 plan, along with the Section 504 prohibition on discrimination against people with disabilities.

What are the educational rights of overseas students in private schools accredited in the United States?

I’m a United States citizen living in Managua, Nicaragua. My six-year-old son has been diagnosed with Dyslexia. He is in first grade at the American Nicaraguan School — a private bilingual school acredited by the U.S Southern Association of Colleges and Schools (SACS).

Against the doctors and parental advice, the school has “retained” my son in the fisrt grade. What rights do I have in this case? Can this type of decision be taken unilaterally by a U.S. private school operating in internationally territory? Please give me your advice.

Francisco

Dear Francisco,

Unfortunately, although the school your child attends is accredited by the SACS, this is a private accreditation program and has no legal force in its own right, other than to remove the school’s accreditation. U.S. special education and disability law generally does not apply to an organization in a foreign country, unless it is operating under the direct auspices of the government, e.g., an school for armed forces dependents operated on the base by the military or receives federal financing from the US government.

You may have rights under Nicaraguan law or under the contract you signed with the school, but you would need to consult a lawyer knowledgeable about Nicaragua’s laws for an answer to that. You may also be able to file some kind of complaint with SACS.

What are the parents' rights when there are less teachers than needed?

Can a parent insist on teacher training or the hiring of staff with specific LD expertise? There are nearly 100 ASD children in the county I live in. The only ASD specific instruction these children have is one autism consultant! This person is only here for suggestions. Clearly, a ratio of 1:100 is absurd!

How can any of those children be benefiting from that? Can I demand my child get one-on-one time on a daily basis with someone who has specific training in dealing with ASD children?

Heather

Dear Heather,

Parents can ask for anything, but schools are not obligated to provide services or staff just because the parent asks. From what you describe, it seems likely that the program, services and staffing levels in your district are inadequate. However, whether in relation to a specific child or the group as a whole, it would be necessary to demonstrate that the child or children are not receiving a free appropriate public education based on inadequate availability of staff or intensity of services.

There is no specific formula or rule for determining whether a child should receive a 1:1 aide — this is decided on a case by case basis. Generally, it is based on the child’s need for direct supervision either for safety, health, or behavioral reasons or because the child requires a level of intensity of instruction that can only be accomplished 1:1.

Unless the school agrees that this is needed, you will need to prove why it is needed, based on the lack of success without additional support, evidence of greater success with 1:1 support and/or clinical evaluations which document why 1:1 is needed.

Schools are required to consider your input and that of outside evaluators, but are not obligated to follow that input. If you reach an impasse with the school, you have a right to request a due process hearing to challenge the inadequacy of the school’s program.

Note from LD OnLine: Many people confuse autism and learning disabilities. They are different disabilities. See the section on autism in Learning Disabilities: An Overview.

What is a school required to do for a child who has a 504 plan?

What services is the school required to make under the 504 plan when a child is diagnosed with ADHD? My child is in first grade and was diagnosed with ADHD nearly two years ago. Even though he had an IEP in the preschool program, once he started kindergarten, the school said that he no longer qualified for the IEP.

However, he qualified for the 504 plan. Even though I keep in constant contact with the teachers about his progress, I have yet to see anything in writing as far as to the accommodations they are making for his ADHD.

Carol

Dear Carol,

The requirements for a Section 504 plan are contained in the Federal Regulations at 34 Code of Federal Regulation 104. If the student is made eligible for a 504 plan by his school district, based on ADHD, the school district is required to develop and individualized plan which provides services and accommodations which address his specific needs.

Your question indicates that he was previously eligible for an IEP. The decision to terminate the IEP should have been made by the IEP team based on an evaluation determining that he no longer had a disability which required special education and related services.

A decision to automatically disqualify a student from IDEA eligibility when they enter kindergarten would be inappropriate as the basis for a change in eligibility. The Section 504 plan should be developed with your participation and should be in writing. You have a right to ask for changes in the Section 504 plan and to seek information about whether the Section 504 plan is being implemented.

It would also be wise to seek a copy of your school district's Section 504 policy in order to fully understand what the procedures are in the school district for determining eligibility for a 504 plan, developing a 504 plan, implementing, revising and/or terminating a 504 plan. Once you are aware of the school district's policy in relation to Section 504 plans, it will be easier to assess how to best determine if the school is meeting its obligations. In addition, whatever the school district's Section 504 policy says, it must comply with the requirements of the Federal regulations referenced above.

Can a school cancel an IEP program due to budget cuts?

Can A school district decide to cancel a IEP Program due to budget cuts? Can the just cancel a program because there is not enough money for the program? Are there any laws that can prevent this from happening?

Dear Jair,

Your question asked whether a school can decide to cancel an IEP program due to budget cuts. Schools are obligated to provide students with free appropriate public education. They can not simply terminate a program because they do not have enough money. Further, if the school as a whole is experiencing budget cuts, it must assure that the efforts to achieve a balanced budget are distributed fairly among all students, rather than by simply cutting special education programs or the program for a particular student.

Does the school have the right to contact my child's doctor?

My child has LD and the school wants us to sign a form stating that they have a right to contact her doctor to moderate her medication. I refuse to sign it. I don't think the school has that right. Will they be able to do anything?

Paula

Dear Paula,

Your question relates to whether the school district may have you sign a form allowing them to contact your doctor in order to secure a change in your student's medication. School districts may be legitimately interested in a child's medical history and/or medication. However, you are not legally obligated to sign a consent to allow the school to access medical information, nor is the school allowed to condition participation in school or receipt of special education on your willingness to have your child receive medication or to receive a particular medication recommended by the school system.

How can a parent with a protective order against them participate in the IEP?

Can a school district ignore FAPE and IDEA laws that say a parent has the right to 50% participation (by phone) when a single parent has a protective order against her but made several requests to change her son's IEP? Did the school have the responsiblity to hold two separate IEP meetings, one with the son and one with the mother to obey the FAPE and IDEA statutes? Is it an act of discrimination to not answer a single parent's IEP request when there is an order of protection barring the parent from the child and his school?

Dear Maria,

Your question raises concerns relative to rights of a single parent who has a protective order against her in relation to her child. Without knowing the scope of the protective order, it would be inappropriate for me to comment on the details of your situation. The school district is obligated to honor protective orders to the extent which they apply. However, if the protective order does not address information sharing, the existence of the protective order may not be relevant to the parent's ability to communicate with the school, unless the protective order or other judicial orders limit the parents' involvement.

Under the Family Educational Rights and Privacy Act, a noncustodial parent has a right to information unless an order expressly bars them from having access to this information. Although there is no language in the IDEA regarding restrictions on involvement of a parent where a court order is involved, the language of the court order should determine the scope of parental participation that is permissible.

If a parent feels that they are being overly restricted in their access to information or decision making, beyond the scope of the protective order, they should seek legal counsel with respect to clarifying whether the protective order reaches as far as the school is interpreting it. It may be necessary to seek amendment of the protective order, if the court is prepared to do so.

Alternatively, if the school system is taking an overly restrictive view of the protective order, the parent should seek legal counsel in relation to working with the school to adopt a more cooperative position with respect to the parent's involvement. Given the situation described, advice from a lawyer in your community who is knowledgeable about these matters would be very important.

What rules apply when a parent wants their child evaluated for special education services while the school system says the child is in the Response to Intervention (RTI) process?

With increasing use of Response to Intervention as a mechanism for evaluating whether children might qualify for special education under the "specific learning disability" label, advocates assisting parents are finding more and more instances where parents are told that full, traditional special education evaluations are either not necessary or should wait until the RTI process is complete (at some unspecified time in the future).

While the federal regulations are now clear on the point that parents can request a full evaluation at any time during the RTI process -- and while we encourage families to do so in writing if they are not satisfied with waiting for RTI to work or not work, the comments on the regulations are also clear that Districts retain the right to turn down a request for an evaluation.

What is less clear is what criteria a District may use to turn down a formal request for a full special education evaluation. Do you have information about precedents, commentary or other sources that indicate what would be legitimate and non-legitimate reasons for a District to refuse to evaluate?

Your question seeks clarification as to the grounds that a school district may use to refuse a parent’s request for a special education evaluation, while the child is being provided RTI services. Unfortunately, there is little or no clarification or guidance for the grounds for the school to refuse an evaluation, but it should be based on the school’s perception that the child does not have a disability requiring special education.

It is critical that any regular education intervention service include a mechanism for gathering data on the child’s progress. The parents should seek that data, as well as seek to have a time frame for determining the period of time the intervention will be provided and the criteria for evaluating the child’s response within a prescribed period of time.

If the school does not agree to an evaluation and has failed to provide a time frame for making a decision about whether the child is responding to the regular education intensive intervention, the parent may need to request a due process hearing to challenge the school’s refusal of the evaluation. If the school has failed to gather appropriate data, it will have a difficult time defending the refusal of the evaluation. If there has been a proper data gathering procedure, the data may be useful in resolving whether the evaluation is indicated.

In any event, an open ended intervention process without an end point or criteria for assessing the child’s progress would by itself raise question about the basis for refusing the evaluation.

Can the school suspend an LD child from sports because they do poorly in their schoolwork?

My son Christopher is currently in 10th grade. He was diagnosed with a learning disability in elementary school. Chris is now failing two classes, math and history. I have been in contact with his school and he is being moved into a math support class.

My question is regarding sports. Chris has always been involved in sport wrestling on varsity in his freshman year. Since he is failing two classes he has been suspended from sports for the semester. Do we have any recourse? Chris is devastated by this and I believe if he is made to stay off sports it could have long reaching consequences towards school. Is there anything that we can do?

Your question addresses whether rules regarding participation in interscholastic sports in high school are influenced by the impact of the child’s disability in meeting eligibility requirements. This is an ongoing controversy, and there have been divergent interpretations from courts and agencies with respect to the circumstances under which a student’s disability should be taken into account with respect to whether they meet the eligibility criteria for participation in the interscholastic athletics.

As a general matter, the status of receiving special education services can not preclude someone from participating in interscholastic sports. However, when a student is receiving failing grades, because there may very well be a dispute between you and the school district as to the reason the student is failing, the fact that the child has a learning disability does not automatically mean that they are entitled to maintain their sports eligibility.

You would need to work with the school in demonstrating that his failures were related to problems with his IEP that should lead to the failing grades not being a factor in relation to his eligibility. You should consult with your state Department of Education, state High School Athletics Association, and a knowledgeable special education attorney for how this may be addressed in your state.

If a student with a disability is suspended, is the school required to let them make up work with credit?

If a student on an IEP due to a learning disability is suspended from school, does he have to be allowed the opportunity to make up missed work for credit? The school policy is that suspended students cannot receive credit for work during a suspension.

Dear Marsha:

Your question addresses whether a student with a disability receiving special education is entitled to make up missed work for credit during the period of suspension. As a general matter, school districts are governed by state and local district procedure with respect to how they handle the right to make up missed work during a period of suspension.

However, as a general matter, the courts have made clear that when a student is suspended, even when they may have a disability, for a period of less than 10 school days, they are generally not legally entitled to make up the missed work for credit. This is generally true whether or not they have an IEP.

If a student is subject to disciplinary exclusion for periods in excess of 10 days and they do have an IEP, the schools are generally required to provide them with the opportunity to keep up with the work, unless the IEP team makes an individualized decision that the period of exclusion is sufficiently brief that it will not interrupt the students academic progress.

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

Dear Mr. Cohen - If my child is disagnosed with an IEP and I want to send him to a specific private school that specialzlies in learning disabilities, is there any federal or state funding that I could apply for? We live in New York State. My research has not been successful thus far!

Thanks

Tom's Mom

Dear Tom's Mom,

Under the IDEA, a school district is required to provide a continuum of program options for children with disabilities, ranging from services for the child to support them within the regular classroom up to and including placement in approved special education residential treatment centers. Included within the continuum of options are private schools that are especially credentialed by the states to provide services to children with disabilities in specified or approved areas. While parents may prefer for a child to receive his or her education in a specialized, private school or may feel that a particular school provides superior services to that of the public school, there is no entitlement to private school education simply based on parental preference. The only exception to this general rule is in those states, such as Florida, which have a voucher system to pay for private school services for children who are eligible for special education.

When the IEP team, with the participation of the parent, determines that the public school system is unable to meet the child’s needs and can not provide the child a free appropriate public education in a less restrictive environment, the IEP team may consider placing the child at an approved private special education school. Where the IEP team decides that this is necessary, tuition and transportation expense for the private school must be paid for by the school system. Generally, school districts are reimbursed some of the expense for these private school placements. If the school concludes that the child does not require placement in a specialized private school, because the public school is able to meet the child’s needs, the parent has the right to request a special education due process hearing for the purpose of challenging that determination. However, in order to prevail in such a due process hearing, the parent would need to show that the school system is unable to provide the child with a free appropriate public education, that the private program is the least restrictive environment for the child, and that the private school is able to provide the child with an appropriate education. One wrinkle with respect to these rules involves situations where the parent makes “unilateral” placement in a private school.

If the parent provides the school with written notice at least 10 business days prior to enrolling the student in the private school, advises the public school of the intention to enroll in the private school at an IEP meeting proceeding the enrollment or can demonstrate that there is a genuine emergency requiring immediate placement in a private school, the parent may pursue reimbursement from the public school even after having made the unilateral placement. However, where the parents make such unilateral placement, they do so at their own financial risk, as there is no assurance that the hearing officer or court will ultimately agree that the school district was not providing an appropriate education and that the placement in the private school was appropriate.

In addition to the funding available through the special education system, states typically have funding available through their Department of Human Services and, for children who are wards of the state or adopted, through the Child Welfare Department. Rules with respect to eligibility for these funding streams vary from state to state and by disability. It would be necessary to research funding available through the Human Services Department or the Child Welfare Agency in order to determine whether funding would be available for these types of placements. Typically, funding would not be available for children with learning disabilities, as the funding through Human Services or Child Welfare generally is available only for children with severe to profound disabilities.

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

If a foster child is receiving special education services at school who is recognized as their "legal guardian" -- Social Services or their foster parents? If it is not the foster parent, who is responsible for communicating, updating, signing consent forms, etc.?

Your question addresses who is recognized as the legal guardian for a foster child receiving special services at school. Unfortunately, state law varies with respect to who has decision making authority with respect to children who are wards of the state. Further, the rights of the state, the foster parent, and the biological parent are often determined on a case by case basis.

Under some circumstance, the biological parent may retain decision making authority while in other instances, the state may have the decision making authority. Under the IDEA, there is a procedure for the appointment of the surrogate parent to serve on behalf of the child when the biological or adoptive parent is not available or capable of acting on behalf of the child. Often, foster parents are appointed as surrogate parents in order to serve in this capacity. You would need to check your state’s rules regarding wards of the state in your states special education regulations in order to obtain specific information in your state.

Can the school refuse to let a child attend a party because they "can't handle him?"

I was told not to send my son to kindergarten on a day they were having a "fun" activity day because the teacher didn't think she could "watch/handle" him? Is this legal? Should I consult an attorney? He was shortly thereafter diagnosed with ADHD. He cried all day when i told him he couldn't go to school that day. I felt and still feel horrible for not just taking him anyway.

Melinda

Dear Melinda:

You report that you were told not to send your kindergartener to school on an activity day because the school felt they couldn’t handle him. Subsequently, your son was diagnosed with ADHD. Even if your son had not been diagnosed with ADHD, if he is old enough to be covered by your state’s compulsory attendance laws (kindergarten and/or school attendance prior to age 5 or 6 are not always required under state laws), he has a right to attend school even if he hadn’t been diagnosed with a disability.

The only basis for a school to exclude a child from attendance who is legally enrolled is to follow the procedures relating to suspension and expulsion. State laws may also allow schools to exclude students who do not have appropriate vaccines or certain medical documentation, which is not the issue here. Since your son had not done anything to justify suspension, he should not have been excluded.

Given that your son has subsequently been diagnosed with ADHD, you may wish to inform your school of the diagnosis if you feel that he needs additional services, supports or accommodations. You have a right to request that your child be evaluated to determine whether he qualifies for special education or for a Section 504 plan (which can provide for services or accommodations). If you make a request for evaluation in writing, the school may agree to the evaluation. If they agree, they must discuss with you what testing is needed and obtain your written consent for the evaluation. If they feel an evaluation is not appropriate, they must notify you in writing that they are refusing the request, the reason for the refusal, and inform you of your right to request an impartial hearing to challenge the refusal of the request.

Can a school district systematically refuse to serve students with dyslexia?

I am an Academic Language Therapist in Kansas and have several dyslexic students I work with. I am not allowed to go into the schools. They must come to me after school. The district in our area does not seem to be addressing the dyslexic students problems with an effective program. We have seen several students who have spent their entire school career in special education but still cannot read!

Our district does not like to use the word dyslexia and refuses to recognize that there are programs that work and those that do not. What can these parents do to force the schools to use a program that has been scientifically proven to work? Can they force the schools to allow the therapists they are paying for into the schools? We have so many kids being left behind because their parents do not know how to advocate for them! PLEASE HELP US!!!!

Tracey

Dear Tracey:

Your question raises concern about a systemic failure of schools in your area to address the needs of students with learning disabilities. First, you indicate that there is confusion about the schools’ willingness to serve children diagnosed with “dyslexia.” The specific terminology that was adopted for the definition of “specific learning disability” in the IDEA was hotly debated when the law was first passed in 1975. The statute ultimately focused on the presence of processing disorders that adversely affect the ability to learn various academic skills.

However, the SLD definition expressly referenced “dyslexia” as one of the conditions that were examples of learning disabilities. Some clinicians use dyslexia as a diagnostic label instead of or interchangeably with the term “learning disability.” Others use it to refer to a specific type of learning disability. In either event, the statute was written to include, rather than exclude, children with dyslexia, if due to the dyslexia, or any other learning disability, their academic performance is adversely affected and they require special education.

Under the 2004 amendments, schools encouraged to utilize research based interventions in regular education, prior to diagnosing children with learning disabilities, in order to rule out the possibility that the students were underachieving due to inadequate instruction, rather than due to a processing disorder. Despite this, if a student is diagnosed as having a learning disability, including dyslexia, and had not made appropriate progress when provided research based interventions in regular education, they likely should be identified as eligible for special education based on their learning disability.

Your question also raises the concern that the failure to diagnose children as having learning disabilities may result in their losing the opportunity for effective, research based instruction that is able to remediate the disability. Based on the new Response to Intervention system, children suspected of having learning disabilities may be offered research based interventions within regular education. Where this occurs, for some children, these interventions may be sufficient.

Unfortunately, many schools lack adequate staff trained in these research based methods. It is unclear, if not doubtful, that such instruction will be sufficiently available around the country. Further, even given the availability of those interventions, which are not necessarily designed to specifically remediate learning disabilities, some children may not make adequate progress due to their LD and may need special education.

For those children, the law now requires that special education programming utilized scientific, research based programming to the extent practicable. This means that the research based methods for remediating learning disabilities will need to be more widely available and should allow for children to get more intensive and effective help then they may have received in the past.

Can a parent obtain special education services from the school district after their child graduates?

My son graduated from high school in 2007. He was diagnosed as LD in school. The question is this: if I have him tested by OVR, and find that his disability is more than what the school lead on to believe, do I have right to take legal action against the school district? Especially if there was a misleading on the severity of his LD, or if there is mental retardation involved?

Frank

Dear Frank:

You ask whether the public school may have responsibility for your son subsequent to his graduation, if it is discovered that he was misdiagnosed (and presumably inappropriately educated) by the public schools. Some courts have held that a student may obtain relief from a school system for failing to provide appropriate services prior to graduation even after graduating. However, the courts use what is called a statute of limitations, which means that individuals may only bring complaints against the school for problems within a specific time frame prior to filing a request for a special education due process hearing.

Under federal law, unless the state school code has a different statute of limitations, there is a two year limitations period. This means that you could only bring an action relating to alleged failures within two years of the time period back from the date that you requested the impartial special education due process hearing. In order to obtain relief for failures prior to graduation, it would be necessary to show that the school failed to provide an appropriate education and that the student sustained significant disruption to their educational progress as a result.

The remedy that is generally permitted for such claims is what is called compensatory education. This generally means that at most the student may receive services designed to make up for the services they should have received if they had received a free appropriate public education. The courts overwhelmingly hold that schools are not liable for money damages, pain and suffering or other damages similar to those that might be obtained for malpractice or civil rights violations.

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

Can I remove my son from a self-contained class if it’s not helping? He has been there for two years. My seven-year of boy has ADHD, Cystic fibrosis, and a speech delay. They tell me he is slow, but I can get him to do math and his colors and things a Kindergartener should know, just not read.

They think because he is sick he doesn't need to learn. His teacher let us know there was no need for him to learn because he may die before he sees a job. They alone have him in that class because of his medication and there is a nurse in there. I would like him to be in a real class with help in problem areas. He wants to learn and can if they would try.

Dear Anna,

Under the IDEA, you can request an IEP meeting to consider a change in placement. Options could include a regular education program with support or a more appropriate special education program. In either case, your child has a right to a program that includes access to the general curriculum to the extent possible (20 U.S.C. § 1412 (a)(5)(A)), IEPs that provide for meaningful benefit, Ridgewood Board of Educ. v. N.E., 172 F.3d 283, 247 (3d Cir. 1999), and a program that is based on peer reviewed research (that works!) 34 C.F.R. § 300.320 (a)(4); 34 C.F.R. § 300.35.

The teachers comments are not only inhumane, but reflect a position that is contrary to the law. Your son has a right to an appropriate education. His health condition, coupled with his lack of progress, should lead to further evaluation to determine why he is not making progress, rather than a conclusion that he can’t be helped or doesn’t deserve to be helped. You should consider asking for a new evaluation. You should also consider seeking help from a parent training center or a protection and advocacy office or other advocacy group concerning the teacher’s comments and position, and seek help from your states Department of Education Special Education office.

Your son not only wants and needs to learn, he has a right to learn.

How can I get my son on social security disability?

My son is 22 years old and learning disabled — his whole educational history from the age of three has been in special education. He received his high school diploma from a special education school in 2004. He plateaued at a sixth grade learning level and was not able to move beyond that.

We are in the process of trying to get him social security disability, but they can't make a determination and have to have further testing by one of their own doctors. I don't have an official "card" or document that says my son is special needs; just a lot of doctor reports that list his various disabilities — neurologic impairment, pervasive developmental disorder, seizure disorder, mild/borderline mental retardation, etc.

My son was just dropped from our health insurance because he is now 22. The insurance company, along with social security administration, want to see his "document" or "certification" that he is disabled. Am I suppose to have such a document and if so, where do I get it? I have searched and searched and can't find anything "official" to present to anyone to say that he is disabled and has special needs according to the ADA. I hope you can help us! Thank you for your time - I was so happy to find your site!!

Dear Kathy,

There is no “card” that certifies disability that provides a basis for access to insurance, SSI or other government benefits. If a person with a disability qualifies for Medicaid or Medicare, they may get a card, similar to an insurance card, that can be used but different states have different procedures for how this is handled and “the card” just provides access for billing and reimbursement purposes.

Given your description of your child’s diagnosis, it would seem there would be good argument that he should qualify for SSI and for state Medicaid benefits. In addition, if a person is covered on their parent’s insurance and is disabled, there is a basis for continuing coverage based on disability. If the insurance company has refused coverage, an appeal of the denial would be necessary. Your insurance benefits book and the denial letter should explain this appeal procedure.

You should consult an attorney experienced with social security appeals. The American Bar Association lists attorneys who handle social security appeals. By law, if the attorney successfully appeals the denial they are awarded their legal fees as a relatively small percentage of the benefits awarded based on the appeal.

What do you do if you can't afford an attorney?

My daughter was diagnosed with severe ADHD by a psychologist and three MD's. The school refused to do an MFE, and they also refuse to give me access to her school records. In three years, I requested access numerous times, and have been refused. Several teachers have outright harassed my daughter; one even going as far as destroying assignments for another class and openly discussing her ADHD in front of the entire class.

The school bypasses me and goes to the non-custodial parent for all issues, despite the court order giving me custody. The school created an intervention plan, but the individual teachers were given a choice as to if they honored it or not. The superintendent refuses to acknowledge my complaints.

The school staff claims my daughter is making "behavioral choices" and is not affected by ADHD. Every agency I turn to refuses to get involved, claiming all the issues should be dealt with at the local level. I requested a list of low or no-cost legal services, and the school simply emailed me a link to COSERRC.

I have talked to several local attorneys, but they all run $250 an hour and want a $15,000 retainer. I contacted the Office of Civil rights, but they only will deal with issues specifically related to disability discrimination. Since she hasn't "officially" been identified as having a disability, their involvement is very limited. Who do you turn to when you can't afford the expensive attorney, and none of the state education agencies will get involved?

Unfortunately, it sounds as if you may have exhausted many of the obvious options for where to turn. Your situation reflects one of the pervasive problems with the special education system, to wit that adequate representation is often not available or affordable, despite myths and legends to the contrary.

You did not mention filing a complaint with the state department of education, which you can do without a lawyer. You might also want to contact law school Legal Clinics in your state, as some of them may have special education advocacy programs. You may also want to contact the State Protection and Advocacy Organization. You can get your state's Protection and Advocacy info at the National Disability Rights Network.

Finally, you may want to contact your local bar association, as the bar often runs Pro Bono programs that link lawyers to clients who cannot afford an attorney.

Does the No Child Left Behind Law say a special education teacher can only instruct students with a diagnosis that matches their credential?

I teach a special day class for students with severe language disorders. I have a California clinical rehabilitation credential for speech pathology, as well as an authorization to teach a communications handicaps class.

Our district is a relatively small one. Occasionally in the past, I have willingly taken students who have other disabilities, such as OI, or LH. However, we have a new director who says that No Child Left Behind prohibits putting a child in a class where the credential is not the same as the child's diagnosis.

I believe that NCLB mandates that I teach a class that matches my credential (as well as be highly qualified), but that the IEP team can decide to place a child in whatever class is appropriate for him. Could you address this issue, as well as how NCLB and IDEA relate?

Thank you!
Colleen

NCLB requires special education teachers to be highly qualified and to have content area knowledge in the areas they are teaching, e.g. if teaching social studies, must know social studies. Programs, services and placements under IDEA, however, are NOT supposed to be driven by labels, but rather are supposed to be driven by individual need. Your director appears to be overly rigid in her interpretation of NCLB vs. IDEA.

Can private schools charge learning disabled students for tutoring?

My son attends a private school and was diagnosed with dyslexia. We are now faced with an extra bill for lessons. Fundamentally, we think this wrong and feel we are paying twice for his education. Could you offer any advice on this?

Neil

Short question with a long answer. First, the private school’s obligation to do anything is dependent on, a) whether it received federal funds, in which case it is governed by Section 504, or b) is religiously controlled and doesn’t receive federal funds, in which case it is not governed by the ADA either. If it is governed by ADA or 504, they must provide reasonable accommodations, but don’t necessarily have to provide tutoring.

On the other hand, you can still enroll him part-time in the public school, which may need to provide him with assistance in his area of disability if he qualifies for services. However, the public school can do this on their site.

What Web sites can help you find information about relevant disability laws?

Hi,

I am currently dealing with a learning and physical disability dilemma with a school I attended. I am wondering if they have failed to meet the standards of the law regarding students with disabilities.

Could you possibly direct me to an official government Web site or one that contains the exact laws or protocol of California and the United States in dealing with students with disabilities? Who can I contact? Who can help me?

Any information would be very helpful.

Thanks,
Emily

Dear Emily:

Your question relates to how you can find copies of relevant disability laws in your state and for the federal law. A free service, Find Law, can generally provide access to each state’s statutes, including their disability and special education statutes.

In addition, each state has a Web site which will provide access to these laws. If you go to any web-based search engine and type in the name of your state and “disability laws” or “special education law,” it will generally give you multiple sites that provide this information.

At the federal level, a different version of Find Law can also access federal laws. In addition, the special education laws can be accessed through the U.S. Department of Education Web site.

How do you remove a low score (due to failure of the school to make accommodation) from your child's permanent record?

My daughter is a middle school student with 504 testing accommodations due to an anxiety disorder. Her processing speed is slow and she also has ADHD.

Last year she was given the NYS Math exam and was not given the extended time that should have been available to her as per her 504 plan. She scored a 1 on the exam. This year her math average is approximately 85%. Since the score is invalid, I would like it removed from her permanent record. Is this possible? I am not getting a great deal of cooperation from the school district.

Thank you,
Michelle

It is highly likely that New York has a school student records act that allows for parents to review and challenge contents and accuracy of any school record. In any event, you have the right under the Federal law Family Education Rights and Privacy Act (FERPA) to review and challenge your school records. This includes the right to request an impartial hearing if the school refuses your request.

What do you do when the school takes you to court because your child refuses to attend school?

My 15-year-old son has been in special education classes since elementary school. In 8th grade, he decided to stop going to school regularly and in 9th grade, he refused to attend at all.

The school sent someone to come pick him up, but they can't get him to go. We have even called the police, but he refuses to attend. The school has taken my husband and I to court and we were found not guilty. Now four months later, the school is taking us to court again for the same thing. We have no idea what to do and what our rights are? Can you advise?

Dear Saundra:

I can’t give you legal advice. You should consult a special education lawyer, as well as a juvenile defense lawyer. However, your son’s refusal to attend school may be related to an emotional problem which could qualify him for special services from the school district. You may wish to request that he be evaluated for special education.

Under some circumstances, the juvenile court can even order their own evaluation or that he cooperate with a school or private evaluation. You may also wish to consider obtaining a private mental health evaluation to determine why he is refusing school. If there is an emotional problem interfering with his attendance at school, the school must address the problem although there is controversy and conflict in the court decisions as to whether school refusal is a special education issue. He may need a more structured program in which attendance is mandatory.

Finally, you should check the age at which compulsory attendance expires in your state, as the school will be under a lesser obligation once he is no longer of age to have to attend school. At that point, you still have the right as parents to insist he attend school (until he reaches the age of majority in your state).

He still has a right to attend school, but if he stops attending and the school has not made him eligible for special education and developed a plan to insure his attendance, they are likely to simply remove him from their registered students. Even if they do this, you can re-enroll him, but you need to find out what is causing his refusal and what types of services are needed (and/or programs) to insure he gets help for this.

Must the school obtain permission from the parent to conduct an occupational or physical therapy evaluation?

During a school implementation of Response to Intervention, occupational and physical therapists are being asked to participate in the RTI Process without obtaining parental consent prior to discussing the child. What are the rules on implementation of RTI and how does the OT/PT Practice acts fit into the interpretation?

There is little guidance from the federal government on how the RTI (Response to Intervention) process is supposed to work, with no guidance for the role of related service professionals in the process. Much of the detail of the process is being left to the states. Many, if not most, states have not formally issued rules or guidelines on how RTI should work. Even those that have may not address the question you raise, which is a very important one.

Essentially, your question raises the dilemma that RTI is a non-special education service for children who are at risk of being identified as having learning disabilities. The law makes clear on the one hand that being in an RTI program does not give the child all the rights they would have under IDEA, but it does give the parent the ongoing right to request a formal evaluation for special education eligibility.

Further, as your question implies, there are serious legal and ethical issues surrounding the ways that RTI may be implemented in particular states and/or school districts, due to the possibility that evaluations may be delayed excessively due to the school’s insistence on referral to and/or excessive time spent in RTI or use of criteria for special education eligibility that are not clinically defensible.

Further, since RTI is supposed to focus on the child’s response to research based reading interventions, I would question whether a request for involvement of the OT or PT without parent consent was in fact a de facto special education evaluation without parent consent, rather than just intensive scientifically based reading instruction in regular education.

Given these various legal questions, a related services professional would be wise to check both their state’s professional licensing or practice act and their professional association’s code of ethics to determine if the things they are being asked to do are legal and ethical.

What can a teacher do when a parent refuses special education services that the child needs?

I am an Educational Facilitator (a teacher who works with home-school families) for a public home-school program in California. A family I work with has a student who has been diagnosed with PDD and ADHD. This student has qualified for special education services, but the parent declined those services—she doesn't want the student to be labeled. The mother is in denial regarding the condition of her son.

This student is being home-schooled without any supplementary services and his communication skills and academic skills are grossly deficient. What is the school's legal recourse? I have been informed our only option is an expensive lawsuit.

Amy

Your question addresses the options available to schools if a parent refuses special education eligibility for a student the school feels is badly in need of special education services. For better or worse, depending on the circumstances, IDEA 2004 gave parents an absolute right to refuse special education eligibility and removed the ability of the school to go to due process to overcome the parents’ refusal.

In recognition that this meant the school might be unable to meet the student’s needs without such services, the statute immunized the school from liability for the student’s lack of progress if the parent refused eligibility. 34 CFR 300.300 (b). Further, parents are generally entitled to home school their children, regardless of their reasons for doing so and whether the reasons appear to be in the child’s interests. Standards for home schooling vary by state.

Some states have child abuse and neglect laws with provisions for filing reports in relation to medical or educational neglect. Even if your state has medical or educational neglect provisions, you may benefit from consulting with an experienced school lawyer before pursuing this avenue, as well as determining whether it would ultimately be in the interests of the child for this type of proceeding to be initiated. Sadly, the child welfare system often does not serve children with disabilities well either and getting the court and child welfare involved may have negative consequences that could outweigh whatever benefits you hope for.

Are there any disability employment laws that can prevent my wife from losing her job?

My wife was diagnosed with ADD when she was in high school. She is now an administrative assistant to our County Tax Commissioner. She has been doing this job for the past 6 years. Her boss has started to write her up for everything over the last year and a half. She was informed yesterday that she was being let go. Is ADD covered under any of the mental disability employment laws that may protect her from termination?

Thank you.

It would be best for an individual facing possible employment discrimination or termination based on possible disability to immediately seek consultation from an experienced lawyer representing people in employment discrimination cases. For a general introduction to some of the rules governing employment discrimination, including potential discrimination on the basis of disability, see the web site of the United States Equal Employment Opportunity Commission.

As a teacher advocating for my own child, how do I keep from getting “black balled?”

I am at my wit's end! This school has been a year from Hades! My son is in the 8th grade. He has always made A’s & B’s and has been in the AIG program for years. This year things are falling apart. He has ADHD, Anxiety Disorder, and OCD. He is on medications for these conditions. He has actually made F’s, and is in jeopardy of being kicked out of AIG, as well as being retained, and possibly sent to an alternative school.

The school that he attends is not very ADHD friendly. According to them, he is one of the most disruptive students that they have ever had. Their number one problem with him is that he is talkative and disruptive by constantly making comments during class. It is obvious that he is considered an "unwelcome challenge" and he realizes that. He is very unorganized and often fails to go to class without books, late homework, etc.

I am a special educator and go above and beyond to meet the needs of my students. I am very frustrated that I cannot get the same in return for my own child. They expect me to "fix" their problem. I have him on a daily schedule, created a daily behavior chart for them to sign, and I don't know what more I can do. I have requested a 504 plan several times, or at least an evaluation, but they do not seem to think he needs it. I have had problems in the past with schools not being open to 504. I just think that they don't want the accountability that comes along with it. What can I do? I don't want to get black balled.

You are writing as both a teacher and a parent, with concern that advocating on behalf of your child may result in your being “black balled.” Both Section 504 and the ADA provide some protections against harassment or retaliation for advocating for legally protected rights. There are also laws in many states that provide such protections. However, the reality is that it is often difficult to prove that retaliation or harassment has occurred.

If an employee feels that they are being or may be subject to such retaliation or harassment, they should consider seeking consultation with an employment lawyer or contact the Office for Civil Rights of the US Department of Education to get more information about their situation and the legal protections available to them.

Where can I find an attorney who will fight to obtain all legal rights guaranteed by an IEP?

Please give a list of good independent attorneys in Oregon who will go to the wall for clients, not stop and run from the school board. Many parents are finding that the attorney will only do the easy part of an IEP and not require the Corvallis School District to do what's right under the law.

We even had a special education teacher who was not certified in special education, and the attorney did not file a complaint with the state. Why is the district more important then the child? Please give a list of professionals who will implement the NCLB and ADA to the fullest. Thank you.

You have asked for legal resources to find a lawyer who may have knowledge of special education law. There are a number of websites that provide information on lawyers who may work in the special education or broader disability field. Here a few:

The Council of Parents, Attorneys and Advocates

The American Bar Association Committee on Mental and Physical Disabilities

The National Disability Rights Network can direct you to the Protection and Advocacy organization in your state which provides legal assistance on behalf of persons with disabilities.

Every state has a federally funded Parent Training and Information Center, which provides information on special education issues and may be able to direct you to legal resources in your state related to special education. You can locate the parent training center or centers in your state.

Finally, all state departments of education and local school districts are required to provide parents, on request, a list of low or no-cost legal services available in the state to assist with special education matters.

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

My daughter is 9 years old. She has been diagnosed dyslexic and ADHD. She is learning disabled in reading and almost in math. My school will not evaluate her. The reading specialist says she is reading at a third grade level. Both specialists that tested her said she is at a second grade level. My school is making us go through the response to intervention program. The school psychologist said they have to do this first by law. I read them the law that stated they shall but not may do RTI. It went over their heads. My principal told me off the record that my educational specialist was spinning the numbers. My response was. "well, what about the neuropsychological evaluation?" Her response was, "if you go looking for something you'll find it." My daughters overall Terra Nova score was 25. Her spelling was 9, reading was 11. The educational specialist recommends the Wilson reading program. My school doesn't offer this. This is heart breaking to watch your child cry when trying to do homework. My oldest son also has ADHD. I had no problem getting him an IEP. My principal told me my daughter wasn't that poor of a student. My daughter and I spend hours many nights doing homework. Now the psychologist, principal and reading specialist are pulling her out more to work with her. They think she needs to practice reading more. My daughter has been in a special reading group sense first grade and tutored outside of school since first grade. Holly's grades are because of my help and hours of studying. Do I have to continue RTI?

Schools are not supposed to keep children in an RTI mode indefinitely. If the child is making progress, they should ultimately be able, based on that progress to return to the regular program. If they are not making progress in a reasonable period of time, the school should refer the child for evaluation to determine if they are eligible for special education. Under the IDEA 2006 regulations, a child may be considered for eligibility under LD if:

(1) the child does not achieve adequately for the child's age or to meet State-approved grade level standards in one or more of the following areas when provided with learning experiences and instruction appropriate for the child's age or State-approved grade level standards: (i) Oral expression; (ii) Listening comprehension; (iii) Written expression; (iv) Basic Reading skills; (v) Reading fluency skills; (vi) Reading comprehension; (vii) Mathematics calculation; or (viii) Mathematics problem solving.

(2) (i) The child does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in paragraph (a)(1) of this section when using a process based on the child's response to scientific, research based intervention; or (ii) The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments, consistent with Secs. 300.304 and 300.305;

(3) the group determines that its findings under paragraphs (a)(1) and (2) of this section are not primarily the result of (i) a visual, hearing, or motor disability; (ii) Mental retardation; (iii) Emotional Disturbance; (iv) cultural factors, (v) Economic disadvantage; or (vi) Limited English Proficiency. 34 CFR 300.309.

Obviously, in order to make these decisions, the school district would have to actually conduct an evaluation. In addition, the federal regulations clearly provide that a child should be considered for evaluation for special education either if a) they have not made adequate progress after an appropriate period of time when provided with scientific, research based intervention, or "whenever a child is referred for an evaluation." 34 CFR 300.309 (c)(2). While a school may choose not to evaluate a child in response to a parent's written request for evaluation, they must give the parent written notice of the decision not to conduct the evaluation, the reason for the refusal of the evaluation, and the parent's right to request a due process hearing to challenge the refusal of the evaluation by requesting a due process hearing. 34 CFR 300.503 (a) They may not simply ignore the parents' request or insist on continuing to provide additional non-special education intervention.

Do the IDEA 2004 criteria for SLD still require a processing disorder?

My son has a great deal of difficulty reading, but the school claims he just needs to be taught better. We are getting him tutoring. I am getting him evaluated and I think he might have dyslexia. I was told that I had to prove he has dyslexia or some other processing disorder to get tutoring. But someone else said that you didn't have to prove that there was a processing disorder with the new IDEA regulations. What are the facts?

There is much confusion about SLD under the new IDEA 2004 provisions and 2006 regulations. However, while the procedures for evaluating SLD have changed, including introducing the option of a research based regular education intervention (RTI), prior to formal evaluation of SLD, the SLD definition did not change and still requires the presence of a processing disorder The definition in the federal regulations specifically states: "Specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia." (See 34 CFR 300.8 (c)(10).)

Can I continue to send my son to a particular public school where he is doing well, even though I moved?

My 9 year old son has been going to the same school for the last 3 years. It has been a constant battle with him. I was at school almost everyday because he was either in trouble or a meeting to decide what to try to help him. He hated school and would not even try to participate. This year he hasn't gotten into any trouble, and he's making A's and B's We recently had to move and we wanted to keep him in the same school, because he was finally doing well. We moved two streets over. I didn't check the school zones before moving and he is now out of his schools zone. I was devastated and so was my son. The school let him go until Christmas break and then withdrew him. He has worked too hard and is finally making progress. Is there any way I can keep him in the same school in spite of the zoning? I take him and pick him up everyday. I really believe that it's in his best interest that he stay there, and so does my son. I'm afraid if he doesn't get to stay there all his progress will be lost and he will give up again. He only had 2 more years left to go there. Please help us!

Alex

Dear Alex:

This is a very difficult problem which is not addressed by federal law. You should consult with a local attorney, preferably familiar with school law to determine if there are any state law provisions which address this problem. Many school districts allow non-resident students to enroll on a tuition payment, but this is sometimes at the discretion of the school district, depending on state law and district policy.

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

I teach in an Adult Ed setting. The nature of our program is self-paced and individualized, with one-on-one instruction from teachers in both our GED and High School Diploma programs. When an IEP student requests enrollment, we've presented the option of both a 504 Accommodations Plan and an IEP during the initial staffing meeting. At the meeting, we discuss and explain the advantages of both, and we have both a proposed IEP and a proposed 504 plan for the team to review at the meeting. If the parents, student and committee members agree that a 504 Plan is sufficient, then the student is signed out of special services and a 504 Plan is implemented in lieu of an IEP.

So, my question is, since our Adult Ed program is designed to be individualized in nature, is it appropriate to allow an IEP student to 'try' a 504 Accommodations Plan in lieu of an IEP if the IEP team determines that the student deserves a chance to do so? Or, is it inappropriate to present the option of a 504 Plan at an initial staffing when the student has had an IEP at a previous school?

Thank you,
Gina

Dear Gina:

Your question deals with whether a student who has previously been in special education and is now transitioning to an adult ed program operated by the school district for students under 21 that have not yet graduated may could/should be given the option of a Section 504 plan and be exited from special education if the 504 plan would meet their needs.

The decision to terminate special education services may be made at any time by the IEP team, including the parent, and for those students 18 or older, including the student. The threshold question operationally is whether the student still needs special education assistance.

Your question, though, recognizes that sometimes the line is blurry between needing special education and an IEP vs. only needing a Section 504 plan. In fact, a Section 504 plan also requires that the student receive a free appropriate public education, but contains fewer regulatory requirements for how the program operates.

I can see pros and cons to your desire to promote a shift to 504 eligibility, but you have not articulated clear reasons for why doing so would be advantageous for the student. If they meet criteria for IDEA eligibility and there is no advantage to shifting to 504 eligibility, I am unclear why you would do it.

I am also concerned that in some schools, this might be done as a way of sidestepping the very strong IDEA transition requirements and giving the child/young adult less services with less protections. Since Section 504 does not contain comparably strong transition requirements, my inclination would be to maintain IDEA eligibility.

On the other hand, in individual cases, if there is truly an open and full discussion of the options, the child and parent fully understand those options, and all agree that a shift to Section 504 eligibility is preferable, there is nothing legally improper as long as the correct procedures are followed.

I would also note, though, that you suggest that if the student needs to get back into special ed after being declassified, they can do so. While this is theoretically true, the process of making a student eligible again is time consuming and burdensome….and I would be concerned that in some schools it is much easier to get out of special ed then to get back in if it is needed at that time.

What legal rights do parents have when their child is bullied?

Our son has ADHD and a learning disability related to writing and language processing. He has an IEP.

Our son is very small, wears glasses, is not good at athletics, and, like so many kids with ADHD, is rather immature socially. Since starting middle school two years ago, he has been a frequent target of bullies. This past year, along with many other less serious incidents, he was punched in the face on two separate occasions by another student (different students) while in class.

Despite the number and severity of the occurrences, the school refuses to acknowledge bullying as a problem or to take steps to deal with it. Rather, they insist the incidents are isolated incidents that just happen with kids that age. Accordingly, they discipline the bullying students very leniently (but only in incidents involving physical violence; the verbal harassment is not disciplined.) Even if the same student proceeds with further bullying behavior, it is treated as a totally separate incident. The school refuses to increase disciplinary measures for continued bullying by a student.

My husband and I have spoken with the school many, many time; we've called an IEP to request an anti-bullying program and social skills training for our son, but were denied. I contacted a group of parents of students with disabilities at the school, and one of the mothers told me that her daughter had been concerned for the past couple of years about how our son was treated by "some other students", but that she had thought it was limited to verbal abuse. However, the parents' group was unable to provide any avenue we had not tried.

What more can we do? We truly believe our son will not be safe (physically or psychologically) if he continues to attend this school.

Thank you
Maureen

Dear Maureen:
Your question raises serious concerns with respect to how to respond when your child is subjected to repeated bullying and the school fails to respond. A number of steps may be available to you, none of which provides an ideal or perfect solution to this very difficult problem.

First, under the New No Child Left Behind provisions, a child who is subject to violence from other students is entitled to automatic transfer to another school in order to ensure their safety. Obviously, you should not have to transfer your child in order to obtain their safety, but if the school is unable or unwilling to respond in any other way, this may be a necessary step in order to secure a safe environment for your child.

Second, because schools may be liable for injuries that a child suffers when they are on notice of the harassment or bullying, it is important for you to provide the school district with a clear, detailed, specific and written statement documenting the bullying that your child is experiencing and demanding that the school take appropriate action to protect your child.

Third, when your child is subject to continuous bullying, you may have a basis for filing an abuse or neglect report with the appropriate child welfare agency in your state based on your child not being appropriately supervised. Although it is relatively unlikely that the child welfare agency would take action in relation to such a report, the investigation itself would trigger the school to take the matter more seriously. On the other hand, please be careful not to file a false report or a report for the purposes of harassing the school as false or harassing reports may subject you to some legal responsibility.

Finally, you may consider filing criminal charges against the children if your child is subject to repeated offenses, as this may be the only way to force the families of the children to take action against their children.

What happens when divorced parents disagree on school services for their child with a disability?

What can be done when divorced parents disagree on the subject of testing? We disagree on our son's eligibility for assistance, if he qualifies.

Our son has Tourette's Syndrome and a component of it is ADD. He is intelligent, but has difficulties that show up in behavior, and "not working up to his potential". His grades are inconsistent. His father doesn't like labels or having the school perform the psycho educational evaluation I requested. I want to know if my son qualifies for any assistance. If not, fine, then some assistance by the school in the form of a 504 plan or some modification, or recommendations to us the parents. We love our child dearly but do not see eye to eye on how to attend to the issues at hand. The school is caught in the middle, as is our son.

Do I have a right to ask for this testing of our son and have it done, whether his father agrees or not? What legal grounds do either parent have? The school? I fear that he will continue to fall through the cracks.

Thank You.

When divorced parents disagree on the subject of testing or services for a child, those disputes must be resolved through the domestic relations or divorce court. School districts are not able to arbitrate disputes between parents over these issues. They must respond based on the decision of the parent who is assigned custody with respect to educational decisions. If both parents have joint custody with respect to educational decisions, the only venue for the parents is to resolve that issue by a Motion in court for change in the custody or settlement as it relates to educational decision making.

For more information on divorce, go to Divorce: It can Complicate Children's Special Education Issues.

Can the school district deny a child transportation on the grounds that the program is called "Summer School"?

Last year in May I found out that the special education services also included bus transportation for Extended School Year (ESY). I had to fight hard and request mediation before they provided the services for my daughter.

This year, as of May, there was no talk of any ESY. When I questioned them about it they said no ESY this year. There will only be a "Summer School" with a special education teacher, the same as last year.

Can they change the name from ESY to "Summer School" and not provide transportation? To me, this seems like a little play on words to get out of providing transportation.

Thank you,
Kris

Dear Kris:
Your question is whether your child can be denied transportation services for summer school when the same service was previously called extended school year service. Your school district appears to be attempting to exploit a technical nuance in relation to the services to which your child may be entitled.

As "summer school" is a regular education service, a child may not necessarily be entitled to transportation services for summer school as it is not an IEP covered service. By contrast, if a child is receiving transportation services during the school year and qualifies for "extended school year services" through special education, they would be entitled to receive transportation services for extended school year services over the summer if they were also receive those services for the school year. Thus, by renaming those services a summer school service rather than an extended school year, it appears that your school may be trying to inappropriately avoid its responsibility to provide transportation.

If the program is indeed the same program, just being provided under a different name, you would have a legitimate basis to file a complaint with the State Department of Education, a request for due process hearing, or potentially a complaint for violation of section 504 with the Office of Civil Rights. There is case law indicating that school district programs must be evaluated based on what they are actually doing rather than how they describe their program.

Are there rules for questioning children with disabilities who might have committed a crime?

Is it typical for children diagnosed with ADHD to confess to something they didn't do just to stop the repeated questioning? My son was repeatedly questioned by the school vice principal until he admitted to stepping on a girls toe. He said he wanted to get to art class. The vice principal said "sometimes it may take 15 minutes to get an answer." Can an IEP be amended so that this doesn’t happen again?

Barbara

Dear Barbara,
Your question relates to whether a child can be subject to interrogation until they confess, particularly when the child has ADHD. A variety of rules govern the investigation of crimes at school, which give children less protections than adults have in similar circumstances. However, children generally are entitled to have a parent present with them when they are being interrogated and to receive the Miranda warnings.

In addition, when a child is having regular behavior problems, the child should have a behavioral intervention plan wish defines how the child's behavior should be addressed and can provide appropriate protections for them in order to ensure that the investigation about their behavior and the resulting discipline is appropriately handled.

How can a family get funding for specialized services such as Orton-Gillingham Instruction for their child who needs it?

Hi,

I have a 13-year-old son attending a failing school and he receives resource once a day and counseling once a week. Anthony's IEP stated that his weakness is decoding – that is why he is struggling with 5.5 grade level in reading. His strength is math, which is 7.5 grade level. The school is not addressing Anthony's learning disability with the correct tools necessary to help him improve. There has been no improvement in two years. He has been diagnosed as ADHD and is on 25mg of Ritalin a day.

My question is this – I am a single parent who can not afford to pay for tutoring services (like Orton Gillingham) which sound like they would fit Anthony's needs. How do I get reimbursed by the Board of Education?

Thanks for your help.

Desperate in the Bronx
Bronx, NY

Dear Desperate,

Unfortunately, getting funding for private services like Orton Gillingham is difficult, though it is not impossible. Schools have an obligation to provide each child receiving special education with a "free appropriate public education." The regulations define this to include specialized instruction, included, as needed, adaptation of the content, methodology and means of delivery of instruction.

In order to support the need for Orton or similar specialized methods, it is not enough to show that the preferred method is better than the method the school is using or that it would be helpful. Rather, it must be demonstrated that the method you are seeking is necessary for the child to make meaningful educational progress. Theoretically, the school must be able to demonstrate that its program is reasonably calculated to allow the child to make progress and is based on proven methods of instruction, but as a practical matter the burden often falls to the parent to prove that what the school is providing is insufficient. This requires review of grades, progress reports, achievement test scores, work samples and the like to show a lack of significant progress. In addition, it is often helpful, if not essential, to have information from an educational diagnostician or psychologist as to the reasons that the special methodology is needed.

Some schools have staff who are capable of providing these services in-house, but many do not. Therefore, many schools are reluctant to provide these services unless either a compelling case is made for why they are needed or they are ordered to do so by a due process hearing officer or a judge.

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?

Dear Mr. Cohen,

My daughter has been struggling in school since day one. She went to an early childhood program at age four, was put in a mainstream kindergarten class with an aide, and then again for first, second, and third grade. Now in fourth grade they have placed her in the special education class mixed with fifth graders. There are about nine children in total and I still feel she is not where she should be. It seems that the mainstream class is too hard for her and the special education class is too disrupting. She also feels the same. Time is passing by and my child is not getting proper education according to her needs. She is classified as LD.

Do I have a right to put her in a private school for LD children and have the district pay for it?

Michelle

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.

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

Dear Mr. Cohen,

I am a concerned special education teacher here in the state of Texas. We've been told that, according to the No Child Left Behind Act, all students in special education program by 2011 will have to take the required state tests according to the grade level that they are enrolled in – not their ability level (basically all special education students must be on grade level by this time, that's it, no exceptions). In our situation we had to administer benchmark tests this past nine weeks to our students, not at their ability level but at their enrolled grade level as per direction of our school district. In addition, for some of the students a small percentage of their overall grade for the nine weeks included these tests.

Is this legal? If it is, how is this backed up by IDEA, FAPE and is this legally following the students IEPs even with modifications. We work hard everyday to teach our students and we have high expectations for them. We want them to succeed and we push them to do more but they also learn differently and some at a different rate. Isn't that the whole purpose of special education? We want to make sure that we are also legally doing what is right for our students.

Daniella

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.

Does the school have to make accommodations in advanced classes as well as regular classes?

My daughter is in tenth grade. She is dyslexic and learning disabled in mathematics. She is on an IEP and has received "class within a class" services for most of her core (non-elective) classes. She is planning to go to college and study nursing. She needs to take higher level mathematics (Algebra I and above) but the school will not provide "class within a class" services in "college track" courses. She made it through Algebra I with difficulty, but passed. We requested services for Geometry and the school refused.

I feel that by only offering support services in low level courses, the school discriminates against disabled students by depriving them of the assistance they need to complete college entrance requirements. If there any leverage we can apply to get services in the college track courses?

Diane

Dear Diane,

Your question addresses whether you have a right to require schools to provide accommodations and support services with respect to higher level classes, as well as lower level classes. This is a somewhat complicated situation. However, the key point is that every child has a right to individualized education based on their unique needs.

Any system that provides for categorical services based exclusively on level of functioning is suspect – schools that provide remediation only to a certain course level, but refuse to provide remediation when a child reaches the higher level courses would be potentially guilty of categorical discrimination based on disability status. IDEA requires an individualized education program without limitation on the child's grade level or the course content. Similarly, Section 504 prohibits discrimination based on disability category or on the nature and extent of the child's disability.

On the other hand, you should be aware that entitlement to services does not necessarily provide entitlement to the specific model or type of service that you were describing. For example, the school has apparently opted to provide services through a "course within a course" model. There is nothing legally to require the school to provide that form of service, as long as they address the individual needs of the particular student.

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

Dear Mr. Cohen,

It has taken me over three years to get my 11-year-old daughter to be formally tested for a learning disability (dyslexia). I was only able to do so by paying to send her to a private school. On her first day, the teacher called me to ask me about my daughter and if she had been checked. I told her I had several meetings via phone and in person regarding my concerns, but was told my daughter did not need it. Fortunately, my daughter was tested and was -1.1. In my state a child must be -1.7 to receive any extra help in learning.

Every day is a struggle for my daughter, who is bright and learns by memory and tests orally now that we know where her strengths are. My concern is I cannot get any assistance for her because she is not in the county school's range and I can no longer afford private schooling. Public school will not recognize her needs due to her score and I cannot accept my daughter having a lesser education simply because she is not within the school's guidelines but clearly shows she does have a learning disorder. What can I do as a parent to help my child have a quality education versus just barely getting by and/or slipping through the cracks?

Thank you for your time and assistance.

Lisa

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.

What can a parent do to ensure that their child has financial support to fall back on when they become an adult?

Dear Mr. Cohen:

We are trying to find an attorney who will help us look at financial planning for our daughter, now thirteen with learning disabilities. We need to know legal ramifications regarding "trust funds" and also what she might be eligible for through other assistance programs. We know that her potential is still "uncertain", but we want to be able to make sure she has the financial support to fall back on as she becomes an adult.

Where can we go for this information?

Thank you in advance.

Bonnie

Dear Bonnie,

Children with disabilities may have entitlement to a variety of government benefits when they reach adulthood. In particular, various aspects of the Medicare and Medicaid programs provide funding to the extent that family funds are not available.

In order to minimize the potential loss or premature use of family monies, supplemental needs trusts or similar trusts can be established to supplement the funds that are available through government benefits, rather than replacing them. If the family has resources available that are not in trust, the government will typically either require that those funds be exhausted or seek reimbursement for government funds that have already been expended. Until the private funds are depleted, the individual will not be eligible for additional public benefits.

Most communities have lawyers who are experienced in estate planning. It is important to find an estate planning attorney who has the specific knowledge of the legal and tax issues surrounding individuals with disabilities and protecting the ability to access government benefits. Often, referrals for such attorneys can be obtained by contacting the local bar association.

Can college professors ask their students if they received special education services in high school?

Dear Mr. Cohen,

Is it illegal for a professor or administrator to ask a college student if he or she had an IEP in high school or receives testing accommodations? If so, where can I find the legal documents to support this?

Jacqueline

Dear Jacqueline:

As a general matter, under the Americans with Disabilities Act, it is illegal for employers to ask questions about a person's medical or disability history or status prior to offering someone a job. There is no specific equivalent as to how educators conduct themselves, but there is a broad protection against discrimination on the basis of disability in higher education.

Further, the disclosure of disability is, by law, solely a right of the individual with the disability, not an obligation on their behalf. If the individual does not wish to disclose a disability, they should not be required to do so. Certainly, a requirement that a disability be disclosed creates an inference of discriminatory conduct with respect to how that information may be used.