Legal Briefs from Matt Cohen

Can the school make a child study at home instead of being in the classroom?

Dear Jeanette,

Your question concerns the school districts request that you place your child on five hours per week home study due to problems functioning at school which you believe result from your son's central auditory processing disorder and bipolar disorder. First, the decision to place a student on home study is a change of placement which must be determined by the IEP team, of which you are a member.

If you disagree with the recommendation of the IEP team, you have a right to request a special education due process hearing to challenge the proposal. If you request a hearing within the time period provided by your state for challenging a proposed change of placement before it becomes effective, your child must remain in the last agreed upon placement until the due process hearing is resolved.

In addition, although states typically have rules about the minimum level of services a child is entitled to if a child is placed in home study, the requirement is that they continue to receive a free appropriate public education. The services offered would constitute a minimum obligation, rather than the extent of services to which they are necessarily entitled. If you felt that home study was advisable, you could seek additional hours of service and/or related services from the school district beyond those that they are currently offering.

In addition, if you feel that your child should remain at school but is having difficulty by virtue of their disability, you can challenge the school district recommendation for home study and suggest that more intensive or different services be provided to your child at school in order to address the problems they are having which is leading the school to seek the home study option.

Generally, it would be important for you to have support from outside professionals and/or school staff for the provision of different and/or more intensive services within the school. If the school refuses to provide your desired services within school, this could also be the basis for a due process hearing.

Finally, your question suggests that the school is in effect "kicking out" your child. If the school district is refusing to allow your child to attend school, this would constitute a constructive suspension or expulsion even if the school has not officially initiated suspension or expulsion proceedings. Suspensions in excess of ten school days constitute a change of placement which requires the convening of a special manifestation meeting to determine if the behavior relating to the exclusion is related to the disability, as well as the initiation or review of existing functional behavioral analysis and behavioral intervention plans to address the behavior that is leading to the proposed exclusion.

Again, you would have the option of requesting a due process hearing if you feel that your child is being improperly excluded from school. Even if you're the decision to exclude them from school would ultimately be upheld, your child retains the right to receive continuing services to allow them to make progress on their goals and objectives, have access to the general curriculum, and to address the behaviors that are leading to the exclusion.

(August 2008)

How does a child with ADHD qualify for an IEP or 504 plan?

Dear Michael,

Your question indicates that your child has been diagnosed with ADHD by a psychiatrist and psychologist, both of whom recommend that your son be made eligible for a Section 504 plan. Your question then indicates that the school feels your son does not qualify for an IEP even though he is about to fail his classes.

First, you should be aware that an IEP and a Section 504 plan are different. There are different criteria for a Section 504 plan and an IEP. A Section 504 plan requires that a student have an impairment which substantially limits a life activity such as learning. In order to qualify for an IEP, the student must meet the eligibility criteria for one of the 13 categories of disability under the special education law.

In relation to ADHD, the category that is generally utilized is "the Other Health Impaired" category. In order to qualify for an IEP, the student must have a health impairment, such as ADHD, which causes limited strength, vitality and alertness, including limited ability to pay attention to the teacher, which adversely affects the students performance and requires special education intervention.

In either event, the fact that your child has been privately diagnosed would have to be considered by the school district but does not automatically require that the school make the child eligible. The school may decide to accept the outside evaluations, to conduct their own evaluations with your consent, or deny that the student needs an evaluation or services at all. If they decide that the student does not warrant an evaluation or services, they must provide you with written notice of that decision and of your right to request a due process hearing to challenge the school districts refusal to conduct an evaluation or to provide services.

(July 2008)

Can a school deny a student special education services on the grounds that Central Auditory Processing Disorder is not a learning disability?

Dear Kelly,

You report that your child has been diagnosed with sensory integration dysfunction, central auditory processing disorder, organizational skills problems and difficulties in state testing and his own grades over a number of years. Despite this, your school system has refused to provide him with an IEP or 504 plan on the grounds that CAPD is not a learning disability. Over the history of the special education law, there has been considerable confusion and disagreement as to the circumstances under which a student qualifies for a learning disability.

The IDEA criterion for learning disability is defined as:

". . . 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 an imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia."

However, learning disabilities do not include, "...learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage." 34 Code of Federal Regulations §300.7(c)(10)

Although the IDEA does not specifically reference a central auditory processing disorder, it also does not explicitly exclude the clinical condition of central auditory processing disorder from the processing disorders which could qualify a student for LD. In addition, section 504, which does not use categorical disabilities for eligibility, provides for eligibility if the student has a physical or mental impairment which substantially limits learning.

If your clinical data supports the adverse impact of the central auditory processing disorder or the sensory integration dysfunction on your child's functioning at school, it would appear that there would be grounds for eligibility under Section 504 as well.

(July 2008)

Can a parent require the school to move their child from a special education class into a regular class?

Dear Elizabeth,

Your question addresses the desire of a parent for their child to be educated in a regular education classroom, rather than a separate class for reading. You indicated that your school district has special education classes to address content areas for specially designed instruction.

With respect to your question, a parent may not unilaterally sign their child out of special education, without the agreement of the IEP team, unless they withdraw their child from school or are successful in persuading a hearing officer that their child does not require special education. Similarly, a parent can not unilaterally insist that the child should be in a regular class, rather than in a special education class.

On the other hand, the decision as to whether a child requires education in a special classroom or have their education needs adequately met in a regular education classroom, including with the provision of supplemental aides and support, is an individualized decision. A school district policy that provided that instructional services could only be provided in a special classroom, rather than in regular education classes with support would also be inconsistent with the IDEA.

Decisions as to the level of intensity or restrictiveness that a child requires in order to be able to be appropriately educated is an individualized determination, in which the child should be educated in the least restrictive environment appropriate in order to meet their needs. It is neither the parent's absolute right to have the child educated in regular education nor is it the school districts prerogative to have the child automatically educated in special education.

(June 2008)

Can the school system have a policy which denies IEPs to students who have behavioral rather than academic problems?

Dear Justin,

You seek information as to the legality of a school district policy that if a student cannot qualify for an IEP without displaying intellectual deficits or discrepancies even though they display emotional or behavioral problems. Further, you question whether it is legal for a student with a 504 plan based on those behavioral issues to be placed in a self contained class with children with behavior disorders.

At the outset, the IDEA is clear that children with emotional disturbances and behavior disorders are eligible for special education if those disorders adversely affect their educational performance, without regard to the presence of intellectual deficit or discrepancies in relation to achievement. Indeed, the criteria for emotional disturbance under the IDEA are heavily weighted in relation to behavior, rather than in relation to academic performance.

Further, amendments to the IDEA in 2004 indicated that schools must evaluate and develop programming for students based on academic, developmental and functional problems, which would incorporate emotional and behavioral issues as well as intellectual and academic problems. Thus, a school policy which precludes IDEA eligibility based on the absence of an intellectual or academic deficit would be overly restrictive in relation to the provisions for eligibility under IDEA.

At the same time, the student may qualify for protection, including educational and related services, based on a section 504 plan. Thus, a student with a disability qualifies for a section 504 plan and could be entitled to specialized instruction and related services. However, the IDEA expressly prohibits a student from being placed in special education without full informed parental consent at the outset.

If a child is being placed in a self-contained special education classroom, based on a 504 plan rather than IDEA eligibility, it would be a strong argument that the student is being effectively placed into special education, even if not officially placed into special education. Further, this placement is apparently taking place without informed parental consent, which would violate the requirements of IDEA.

(June 2008)

Must the school district provide an alternative home teacher if we fire one we think is incompetent?

If your child has an IEP calling for home services, or any other specific educational or related service, which the school fails to provide for a significant period of time, sufficient to cause a disruption or meaningful interruption in the child's ability to make progress in their education, the school system may be responsible for what are called "compensatory educational services." Typically, the school will not volunteer to provide such compensatory services, but will only do so if the parent initiates mediation, a due process hearing, or an administrative complaint with the state department of education.

However, brief interruptions of service akin to those that would occur for a child in regular education if the teacher were temporarily ill are typically not a sufficient basis for compensatory education. Notably, however, the school district offered you an alternative provider after the initial provider was terminated by the school district. You made the choice to refuse the services of this second provider. As such, the school may argue that it was your decision to discontinue services, rather than theirs, which would provide them a basis for avoiding responsibility for compensatory services.

(May 2008)

Is the school mandated send progress updates to parents and if so, what is required?

Dear Colin,

Your question addresses whether you should be receiving quarterly progress updates with respect to your child’s progress in relation to his annual goals. The IDEA requires that the school district provide the parents with regular updates on the child’s progress in a manner and form consistent with that of regular education, such as on a quarterly basis similar to the quarterly report cards that the school would provide in regular education. In addition, if the parents and school agree to include in the IEP additional forms of information sharing or reporting, the school must then carry out those additional requirements as well.

It is not unusual for an IEP to provide for a weekly email to a parent, a notebook to be sent back and forth between the parents and the school on a daily basis with information from teachers and parents provided as needed, provision of periodic progress reports of greater frequency than those provided for other students if there are particular reasons that the child’s progress needs to be monitored on a more regular basis, or even a provision for periodic meetings during the course of the school year in order to actually discuss how the child is doing.

On the other hand, you also question the school districts provision of IEP papers one or two days prior to the IEP meeting. In fact, the school is not required to provide any documentation in relation to the IEP prior to the meeting, unless you submit a formal request for records prior to the meeting and the paperwork already exists.

It would appear that the school is providing you with a draft IEP. Importantly, the information they are sharing with you ahead of time must be in a draft and subject to modification at the IEP meeting. If they are presenting you with a “final” IEP paper and is not subject to modification at the meeting, they would be potentially guilty of conducting an IEP meeting in which the IEP was predetermined without parental input. Advanced notice, including receipt of the draft set of goals, objectives or services, is desirable even if it is only occurring several days before the meeting.

(May 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)

What does a special education teacher do when the school system won't follow the IEP and insists on an inappropriate placement?

Your question seeks help in relation to a student in your class who was supposed to be placed in a self-contained class, but was denied the placement due to a lack of room. Further, when you complained about this, the administration rewrote the IEP to provide for a different placement that was available, but was also not appropriate. Schools are supposed to make placements based on the child's individual needs, rather than based on space availability or other administrative issues.

If the proposed classroom was full, the school should have considered alternative ways to meet the child's needs that would have provided the structure and services that the child required per the IEP, rather than placing her in a general classroom, where the child has evidently been unsuccessful.

Given your concerns, one step for you to take would be to make sure that the child's parents are fully aware of their rights under the special education laws, including the right to an appropriate education, the right to an individualized program, the right to a due process hearing if they disagree with the change in placement, and even the right to maintain the then current placement, while the hearing is pending, if they do request a hearing.

You could also provide the parents with information on the nearest Parent Training and Information Center for information about their rights and assistance on how to work with the school to resolve the problem. Information about Parent Training Centers in each state can be found at The Technical Assistance Alliance for Parent Centers.

Obviously, the steps you can take, whether openly or privately, to advocate for the child, may place you in a conflict with your administration. If you wish to pursue some action on your own, you could consider either filing a grievance with your union or filing a complaint with the State Education Department for IDEA/special education violations or with the Office for Civil Rights for the US Department of Education for a violation of Section 504, alleging that the child's rights under Section 504 are being violated and that the school is not following appropriate special education procedures.

(April 2008)

Can parents demand the school let their children repeat a grade?

Dear Bella,

Your question asks whether IEPs give children the right to repeat a grade. The answer is that retention policies are generally set by the school board for all students. However, the IEP team theoretically has the power to decide to retain a student for educational reasons, although this would require the agreement of the school staff. The IEP team would likely look to the administration for guidance as to whether this was appropriate or feasible given school policy, so it would be unlikely for the team to take a position contrary to the administration.

You may want to research the pros and cons of retention, as there may be disadvantages to retention that are worth considering. Ultimately, it sounds like you also need to address the components of the program your child is receiving to see if a more appropriate, intensive or different program is needed. Retention may allow the child to catch up, but if the right teaching strategies are not being used, it might simply continue the problems the child is already having.

(April 2008)

Can the school administration override the decision of an IEP team?

Dear Vivian: Your question addresses whether the district administration can override the decision of the IEP team. Under the IDEA, placement decisions are supposed to be made by the IEP team, including the parents. If the administration makes its own decision about placement separate from the IEP team, it would appear that the decision making process is effectively being shifted away from the IEP team, where it belongs.

In addition, if the process is being made privately by administrators outside of the IEP process, it would appear that the decision making process is excluding the parents, which would also be contrary to the requirements of IDEA.

(April 2008)

Can the school explain a student's underachievement by pointing to a low score on a IQ Subtest?

Dear Heather,

Your questions addresses whether schools may selectively use subcomponents of an IQ score in order to determine that the child's performance is acceptable in light of their tested IQ in that area. Unfortunately, there are a wide variety of ways to interpret (and manipulate) IQ test scores. You may wish to consult with a private clinical psychologist for the purpose of obtaining their assistance and understanding the best practice with respect to the use of cluster and full scale scores, vs. the subtest scores.

In addition, the IDEA specifically indicates that schools should not rely on any one test when making a determination about a disability. Further, the IDEA 2004 amendments expressly indicated that in evaluating a child and developing an IEP for that child, the school should address the child's academic, developmental, and functional needs. This language would suggest that the matching of low performance with a low subtest score may not be an appropriate basis for excluding services.

In addition, once a child is determined eligible for special education, the IDEA provides that the school should address all areas of need related to the child's disability.

(March 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)

Does a child have a right to a private classroom aid?

Dear Sandy,

Your question relates to whether your child has a right to a one-to-one aide to assist him in the classroom as an alternative to being placed in a self-contained classroom. Under the IDEA, the decision about whether a child should receive an aide in order to be educated in the least restrictive environment is an individualized decision made by the IEP team with the participation of the parents, as are all other decisions about special education placement and related services.

If it can be shown that the student can function successfully in the regular classroom with the provision of an aide, whether one-to-one or a classroom aide, there would be a basis for the school to provide this service. If they refuse to do so and the parent can prove that the child does require the aide in order to function in the regular ed classroom, but can do so with the aide, this could be a basis for a due process hearing. The parent should consult with a knowledgeable special education advocate or attorney to determine whether there is sufficient documentation to support this position.

Conversely, it should be clear that the child does not have a right to a one-to-one aide for their child in a regular ed classroom just because they prefer that setting. If the IEP team is able to demonstrate that placement in a self-contained classroom is educationally necessary and the least restrictive environment to meet the child's needs, they may make that decision.

In a due process hearing, if they are able to successfully defend that position, the desire for an aide would not be upheld. Again, this is a child and fact specific assessment. In order for you to assess whether you have a sufficient basis to prove the need for an aide in regular education, you should consult with a knowledgeable advocate or attorney.

(March 2008)

How can I get my son effective reading instruction when the school says he should repeat first grade?

Dear Lynette,

I am not an educator, but you may want to check the following websites for research on retention: Taking Responsibility for Ending Social Promotion: A Guide for Educators and State and Local Leaders or Beyond Grade Retention and Social Promotion.

The discrepancy formula is no longer legally or educationally recognized as the primary basis for educationally diagnosing a learning disability. The new IDEA regulations provide for consideration of discrepancies in performance relative to age, state level standards or intellectual development. 34 C.F.R. § 307;34 C.F.R. § 309.

Equally important, the public school is required to consider, though is not required to agree with, the findings of independent evaluators. 20 U.S.C. § 1414 (c)(1); 34 C.F.R. § 300.502 (c)(1). If the school and evaluator disagree, you have a right to request a due process hearing if you believe your child should be made eligible for special education. 20 U.S.C. § 1415 (f).

(November 2007)

Can a parent withdraw their child from an IEP developed by the school?

Under the IDEA, the parent does not have a unilateral right to withdraw their child from special education. That decision is to be made by the IEP team and only on the basis of a reevaluation indicating the child no longer qualifies for special education, graduation or aging out. If the school team refuses to declassify your child, your options are to request a due process hearing to challenge the denial of your request or to remove your child from the public schools.

On the other hand, it appears that the program your child is receiving may not be meeting his needs. An alternative approach would be to push the school for more intense services and/or a better IEP in order that he does make progress. This lack of success may be evidence that the school’s IEP is inadequate in design, implementation or both.

(October 2007)

What is the best way to persuade our son’s school to accept the recommendations of a private evaluation?

Dear Amy:

Your letter reflects concerns that your child’s IEP doesn’t adequately reflect the recommendations of outside evaluators or sufficiently incorporate assistive technology to address your child’s needs. From your description, both you and the school may have some misunderstandings about the law’s requirements. First, schools are always required to “consider” outside evaluations. 34 CFR 300.502 (c). However, while they must seriously consider them, they are not obligated to accept the diagnostic conclusions or recommendations. However, to the extent that the school disagrees with or does not wish to use the outside evaluation, it must be able to provide legitimate reasons for refusing to do so. Thus, your evaluations should be considered, but this doesn’t mean the school will automatically follow them.

If the school refuses to incorporate the outside recommendations into the IEP, you have the option of requesting mediation or a due process hearing (or both) to try to resolve the dispute. Refusing to sign the plan indicates your disagreement, but does not force the school to follow the private evaluations. This can only be accomplished either by a) the IEP team reconvening and being convinced to change their position; b) the school changes its position in the context of a mediation or pre-hearing resolution session, or c) the school being ordered to follow the independent evaluation by an impartial hearing officer. To the extent that you can develop convincing data, both clinical and based on comparisons of how your child functions at school without the extra support and outside school with the accommodations and/or technology, you will be in a better position to both potentially cause the school to change its position voluntarily or to accomplish a change via mediation or due process.

In relation to technology and accommodations, you should be sure that the IEP not only lists the technology or accommodation, but delineates how and when it will be used, that tracks its use, and to the extent that both your child and/or the staff need training in the technology, that there are goals in the IEP for your child’s mastery of the technology and supports built into the IEP for training the staff on its use.

(July 2007)

Can a school district deny a child the support of an aide if one is needed?

Any school policy which provides a blanket refusal of services to a category of children with disabilities may violate both the IDEA and Section 504 based on the failure to make an individualized determination of services. The determination of needs, whether in relation to an aide or any other service, should be individualized.

In addition, IDEA specifically provides that the IEP may include supports that the child and staff need in order for the child to benefit from education, as determined by the IEP team. See 34 CFR 300.320(a) (4) Parents should be aware of their rights under the special education laws.

When a staff person is directed to follow a school policy that may be inconsistent with the staff member’s perception of the child’s needs and, possibly, the child’s legal rights, they face a difficult personal, professional and legal situation. Consultation with a lawyer and/or a union representative may be necessary. It is beyond the scope of this forum to provide any legal advice.

(June 2007)

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

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.

(June 2007)

For more information on this topic, please visit the IEPs section in LD InDepth.