Legal Briefs from Matt Cohen
The following are past questions and answers from Matt Cohen on this topic.
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.
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'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.
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.
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.
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.
Hi Mr. Cohen,
We have a 9-year-old daughter with many issues — she has ADHD, Tourette's, OCD, a specific learning disability in listening, extreme anxiety, and a new diagnosis of bipolar disorder.
Despite all this, she is extremely bright, and it has taken several years for the public school system to acknowledge her issues. She has an IEP under the categories of other health impairment and specific LD.
Last month school became too stressful for her, and the psychiatrist decided (with us, her parents) to remove her from school and let her have homebound schooling provided by the district. A new IEP meeting was convened, with all present agreeing to provide her with 15 hours per week of homebound services. That amount was ordered by her doctor.
Present at the meeting were the parents, both the special ed and regular ed teachers, and the special ed coordinator, all of whom agreed to the 15 hours. We have this meeting on tape.
This past week, the parent coordinator called to tell us the services would only be provided for three hours. The school did not provide written notice of this, just a phone call. Also, they did not amend the previous IEP with the new placement, even after we requested an updated IEP. We have protested by phone and via email saying that we do not agree with the reduction in hours, and still want the 15 promised.
My question is, can they legally be required to provide 15 hours? How can we get them to honor their commitment made at the IEP meeting? This is not FAPE. Please help us!
Dear Leigh:
States have differing requirements for the minimum level of services required for homebound instruction as a matter of law. You should check your state's special education rules to determine this.
However, if the school wrote an IEP providing for 15 hours a week of service and an administrator changed this after the fact, this is a unilateral change of service without an IEP meeting or your participation. You should immediately consult a knowledgeable special education advocate or attorney and may need to file a due process hearing immediately in order to block the change in service levels.
As you did not receive prior written notice, you may also be able to force a return to the promised levels on the basis of "stay put" placement, even if some time has passed since this unilateral change was implemented. Again, you need legal consultation to follow up on this.
My son has Asperger's and learning disabilities. He is 17 years old and will graduate from high school in the Spring of 2010. My son has had an IEP for years. There are numerous accommodations listed on his IEP.
My question is, once he moves on to a two- or four-year college, will his IEP still be of any use to him? Will he get any help?
Dear Mary:
Once a student graduates from high school with a regular education diploma, the IEP is no longer controlling. The IDEA/special education law has no legal force with respect to colleges or universities.
However, these institutions are required to provide reasonable accommodations pursuant to Section 504 and the Americans with Disabilities Act. The IEP will provide useful information to document the need for accommodations, but your son will need to contact the school's disability services office to present documentation of the disability and of the need for accommodations.
Under some circumstances, even if the student has met the technical requirements for graduation, if he or she still has significant unmet needs — such as in the areas of life skills, organizational skills, or social skills — he or she may be eligible for services beyond the twelfth grade year. But this would mean delaying graduation. In some instances, the transition plan could involve participation in community college courses with continuing support from the public school in various ways.
Can my son who attends private school have access to an IEP and LD reading resources at the public school in our district?
Dear Laurie,
Voluntarily enrolled private students have the right to be evaluated by the public school to determine if they have a disability. If so, the school may offer them a "service plan," though the public school has lots of discretion about what services they offer to private school students.
If you wish to have an IEP to be implemented by the public school at the public school on a part time basis, you may request this, but the public school is not obligated to accommodate the scheduling and other issues that may be most workable for your student in relation to their participation at the private school.
Is it appropriate to have a pre-IEP meeting, where teaching staff meet with the special education teacher (no parent involved) to discuss the student's progress with goals and to determine whether the student deserves a diploma?
Dear Ken:
School staff are allowed to meet prior to an IEP meeting and discuss the student's progress, draft proposed goals, and consider options. They are not allowed to predetermine the content, placement, or outcome of the IEP and must have an open and full discussion, including reasonable opportunity for input from you and open consideration of your concerns.
Unfortunately, it is sometimes the case that the pre-meeting does result in a pre-determination in fact, but that is hard to prove. Things to look for include the refusal to give you a chance for input, refusal to consider your input, failure to discuss options other than those previously discussed in private by the team, etc.
Dear Mr. Cohen,
My son is 15 years old and in tenth grade. He has been on an IEP for LD/ADHD since first grade. He still has not reached his grade level in reading. He is having problems in math, which was his strong point in elementary and middle school.
All of his state-required test scores are below-level. He's not committed to or focused on his academics. He is always getting into trouble and the school is always calling me with negative reports. He's not on medication; he states it makes him depressed so we discontinued it and the doctor agreed.
My question is, what are my legal rights in terms of putting him into a private school and the state paying for his education? Our property taxes are very high for education here in Georgia. The public school system here is not good, in my opinion, and I feel he is falling between the cracks. It seems they are pushing him along with the No Child Left Behind Act.
I have tried putting him in another high school and was denied the transfer. He is on a block schedule and that is not working out for him. We have IEP meetings and we've set goals and have all these resources and my son is still failing classes.
I feel I have done all I can for him but I will not give up on my son's education. How can I get any financial support for putting my child in a private school, and, if possible, a military academy? Thank you.
Dear Janet;
I think you need good legal help. If you go to the COPAA search engine, you will find there are a number of excellent special education/disability lawyers in Georgia.
Among other things, it sounds like your son's evaluations and program are inadequate. There are circumstances where private school funding may be the responsibility of the public school. However, it is unlikely that a military academy would qualify.
In addition, there are very important rules requiring that you give notice to the public school of your intention to place your child in the private school because the public school is not providing a free appropriate public education and you want the public school to pay for it. This notice should be given to the public school in writing at least 10 business days prior to making the placement.
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 if a school system does not meet the requirements for re-evaluation? I understand that a re-evaluation must be done within three years of the last evaluation. What recourse do we, as parents, have if that deadline is not met?
Dear Elizabeth:
There is no explicit remedy provided in the IDEA for failure to complete a three-year evaluation in a timely way. You have the option of filing an administrative complaint with the state Department of Education or requesting a due process hearing.
You might also request an independent evaluation at public expense on the grounds that the absence of an evaluation was equivalent to an inadequate evaluation. Doing so might well trigger the district to quickly decide to conduct an evaluation after all.
My daughter is a senior and she was diagnosed with a learning disability at the end of 2006. Her IEP was written by the school and although most teachers honor it, for some reason we always run into issues with the math teachers. My daughter is really behind in math and reading.
Her IEP says she has extended time for testing but her math teacher will only allow her to finish pages that she has not started. The teacher states that my daughter is not allowed to go back to the other pages. If you have extended time you should be able to utilize the rest of your time taking the test however you like.
It just seems like the teacher is reluctant to honor the IEP. I spoke to the IEP team about the teacher and the response was, "Oh she is an excellent teacher."
This is really difficult for me to understand. It seems as though there is something completely wrong with this picture.
Dear Chalina:
Teachers do not have the option to selectively implement IEP accommodations, whether they are good teachers or not.
As a first step, you might try to add language to the IEP to clarify exactly how the extended time is supposed to work and that it is supposed to be provided in math, as well as other courses. This would eliminate any potential for ambiguity. You may also consider going to administrators in the school or school district to express your concerns, as the IEP team may not be able to address the issue or feel comfortable doing so.
If those steps are unsuccessful, you also have the options of filing a request for mediation or a due process hearing, filing a compliance complaint with the state department of education, or filing a complaint with the Office for Civil Rights.
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.
Dear Mr. Cohen,
My son's middle school failed adequate yearly progress three years straight. He has an IEP, and a diagnosis of Asperger's.
I have identified a school in a nearby town that specializes in educating children like my son. I have requested placement on the grounds that the school did not meet the NCLB criteria, and that he has not shown progress as he should. However, the school is denying me the ability to send my child out of district, stating NCLB does not apply to IEP/special education, and that I can only send my son to "another school" if and only if there exists another school within our district.
My question: How does NCLB apply to IEP/IDEA and FAPE? If my school did not meet NCLB, do I have a right to send my child out of district to another school that performs better, especially one that specializes in educating children with Asperger's?
Dear Dawn:
Under NCLB, there are circumstances where students at a school that is consistently failing to make adequate yearly progress can request transfer to a school that is meeting state guidelines. However, the transfer to an adequately performing school would be based on the overall school failure and would allow transfer to an adequately performing school. It would not trigger an automatic right to transfer to the school with the program for children with Asperger's.
On the other hand, if your child is not making adequate progress on his IEP on a consistent basis, the school is obligated to provide your child with an appropriate education. If that can't be accomplished at the current school, they are obligated to provide a program that does, whether within the district, or, if not available in the district, potentially in another public or private school outside the district.
The right to placement in a special program under IDEA due to the child's inability to receive an appropriate education is not limited or governed by the transfer provisions of NCLB.
I work with kids with special needs in grades K-8. When a child is exited from an IEP, parents often see this as a good thing intellectually, but emotionally they feel frightened.
"Where is my support system going?" they wonder, and, "What will I do now that I have no legal recourse?"
Do you have resources or suggestions for helping the parents transition?
Your question addresses parental concerns about the absence of a safety net when their child's special education eligibility is being terminated because the child has made adequate progress.
First, it is possible for a student that is making good progress and functioning at a level suggesting special education may no longer be needed to have an IEP that gradually reduces the level of service prior to formal termination. This can reduce the risk that the student goes from a needed level of support to no support and suffers regression or other problems as a result.
Another option for students in these situations is for the student to shift from an IEP to a 504 plan as an interim measure. This also allows for some greater degree of protection and/or attention as the student shifts from a higher level of special education service to regular services.
Finally, in many schools, a student should be able to receive a variety of study supports and other accommodations available to regular education students, even in the absence of formal special education eligibility or 504 status. In addition, if the student begins to experience serious problems after eligibility is terminated, the parents can request that the child be reevaluated for renewed special education or Section 504 eligibility.
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.
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.
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.