Legal Briefs from Matt Cohen

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

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.

(June 2008)

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

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.

(May 2008)

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

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.

(May 2008)

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

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.

(March 2008)

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?

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.

(March 2008)

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

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.

(January 2008)

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

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.

(January 2008)

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

Dear Tom's Mom,

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

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

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

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

(December 2007)

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

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

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

(December 2007)

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

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.

(November 2007)

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

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.

(November 2007)

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

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.

(November 2007)

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

Dear Anna,

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

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

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

(November 2007)

How can I get my son on social security disability?

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.

(November 2007)

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

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.

(October 2007)

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

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.

(September 2007)

Can private schools charge learning disabled students for tutoring?

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.

(September 2007)

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

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.

For more information on this topic, please visit the Legislation & Policy section in LD InDepth.