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IEPs

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

Can schools consider academic performance when evaluating a child's special education status?

My 16-year-old daughter has had sensory processing disorder for many years but was recently reevaluated for that and also diagnosed with auditory processing disorders and ADHD. We have had team meetings with her teachers, counselor, and the school psychologist, but the school has denied us either a 504 or an IEP because they believe she is doing too well academically to need them. I know that IDEA requires that students be below grade level to some degree, but I thought that section 504 applied even if a student was succeeding in school. I also thought that impairment in hearing and concentrating (ADHD) counted as disabilities under section 504. Shouldn't she be able to receive accommodations from the school district for her disabilities even if she's doing well academically?

You are partly correct in relation to each point, but also partly wrong in relation to each. See some of my prior answers in other months about the differing eligibility standards for special education and Section 504 plans. Academic problems are not the only basis for eligibility under either law. A student could be doing well academically under either and still be eligible under either, due to problems with social skills, behavior, organizational skills, or other issues. However, both laws require that the problem have a significant impact on the child's functioning. Each also requires that the student needs some form of intervention to address the disability and its impact. The difference is that to be eligible for special ed (an IEP), the student must require some form of special education instruction, whereas to be eligible for a Section 504 plan, a student can be eligible based solely on the need for related services or accommodations.

How would changing from an IEP to a 504 plan affect my child?

My son was diagnosed with PDD-NOS (Pervasive Developmental Disorder — Not Otherwise Specified) when he was 5. He is now 8 and has been re-diagnosed with ADHD/ODD (oppositional defiant disorder). The school keeps telling us that his IEP is no longer valid because he does not "need" a specialized program since all of his accommodations can fall under a 504 plan. We've had a bit of a contentious relationship with this school, and things that we have asked for (e.g., an FBA-functional behavioral assessment) have not been done. The school keeps pushing for a 504, but I am worried that going to a 504 will eliminate, or limit, our rights to request special accommodations. I don't know if a 504 plan could be adequately individualized for my son. I'm wondering what my rights are in this situation and wondering what steps I should take to keep my child on their IEP.

First, there are many situations where a student may qualify for either an IEP or a Section 504 plan. The decision as to which should be used should be made on an individualized basis. Further, often, children with PDD-NOS and/or ADHD do need an IEP, even if much of the intervention is based on accommodations. Certainly, children with these diagnoses have skills deficits that need remediation, justifying having goals, objectives and specific strategies or interventions to assist them in developing these skills. While schools may use the IEP format to write a 504 plan, most schools do not do so. Rather, their 504 plans are often focused on accommodations and not on plans for how the child will develop needed skills and how the child's progress will be monitored.

If your child is already on an IEP, the school must convene a meeting to decide to terminate special education eligibility. If you request a due process hearing immediately after this decision, the school must maintain your child's eligibility and previously provided services until the issue is resolved.

Can a school legally change any part of an IEP without parental consent?

We had an IEP for a 6-year-old child who had not yet attended kindergarten. The child was found eligible for special education services, and we held an IEP meeting. During the meeting, it was determined by all professionals on the team that the child should be enrolled in kindergarten with an aid, despite his age. The parents were not given an IEP report but were told to come in to school the next day to enroll the child in kindergarten. Parents were given an IEP the next day, but it did not mention grade placement. Subsequently, the parents were told that the child could not be enrolled in kindergarten because he was 6 years old and had to enroll in first grade, regardless of his "special circumstances".

I'm wondering… is there a way the school can change the determination of the IEP without the parents, without breaking the law? And is there any precedent in past cases of a 6 year old being placed in kindergarten rather than 1st grade?

First, generally, the issue of promotion and grade level placement is not automatically viewed as an IEP issue by most school districts. You should check your state's laws to see if it addresses minimum/maximum ages for participation in kindergarten and enrollment in first grade. Sometimes, this issue is addressed in district policy, rather than state law. If this is the case, the IEP more clearly supercedes any limiting policy. In your situation, the problem is further complicated because the staff apparently supported placement in kindergarten, but the person writing the IEP document didn't write that in it.

Although it is legally permissible to change any IEP outside of the IEP meeting, this can only be done in writing and with mutual consent of the parents and the school staff. However, because the grade level issue was not written into the IEP, the school administration will likely take the position that it is an administrative issue and wasn't even addressed in the IEP. It would be helpful for you if the participating staff is willing to confirm that they agreed that the child should be in kindergarten, but it may be difficult to get that documented in writing. In all likelihood, the parents will need knowledgeable legal help to assess the situation and determine their legal position. In either event, getting documentation of what the team actually agreed to, versus what was written subsequently, would be very important.

How can I successfully advocate for my child during an IEP meeting when the school is not considering my ideas?

Our son has ADHD and other emotional issues. He has a personal paraprofessional with him all day to keep him on task and for his safety issues (i.e., wandering off, no fear). The school sent us a notice of action to take his paraprofessional away. All the reason they gave us was that his teachers and paraprofessionals say that he could succeed in school most of the time. It is a safety issue for us most of all, so we brought letters from doctors, therapists, and social workers to back up our reasoning. Our letters were ignored, and at the IEP meeting our concerns were tossed aside like we didn't have a say. We had an advocate at the meeting who was surprised by their decision; they had a consultant at the meeting who works for a special ed law firm. We were out-gunned and are wondering: how do parents stand a chance against this kind of presence?

Your question addresses the school's decision to remove the 1-1 aide for your son with ADHD. Your question raises a number of important issues.

First, schools are required to consider input from parents and their outside experts or consultants. This does not mean the school is bound to follow their decision but must give it serious consideration and provide reasons for why they are disagreeing or not following the outside advice.

Second, it appears that the school gave you notice of the decision prior to the IEP meeting and did not give serious consideration to your input at the meeting. This may indicate two separate legal problems. One is that schools are not supposed to pre-determine the decisions that are supposed to be discussed at the IEP meeting. If they informed you of the decision prior to the meeting, it would appear that the IEP discussion was a sham. In addition, parents are supposed to be given a "meaningful opportunity" for participation in the IEP process. While you did not provide details, if you can show that the school was unwilling to even seriously discuss your concerns and those of your clinicians, there is an argument that you did not have a meaningful opportunity to participate.

Finally, you have the right to request a due process hearing to challenge the school's decision. Your question didn't say when the meeting took place; and by the time this answer is published, it will surely have been many weeks ago. Under the special education law, if you request a due process hearing within the time specified by state law after the decision to change placement or services (typically 10-14 days), the school is required to keep the program or service in place while the due process dispute is being resolved, including any time the due process decision is being appealed to court (in other words, at least months, and possibly longer). This is called the "stay put placement" rule. It is likely that you are beyond the legal period for filing a hearing in time to automatically trigger the "stay put" rule. However, you still have the right to file a request for hearing and challenge the decision. In addition, there are some circumstances where hearing officers may decide that if the request for hearing is filed before the change is implemented, the "stay put" rule applies, even if the request for a hearing wasn't filed within the initial Notice of Change of Placement period. You should seek consultation from a knowledgeable special education attorney to seek assistance with this issue.

Are there any laws to regulate the length of an IEP meeting?

I teach special education in Nevada, and today we held an IEP meeting that lasted hours. The meeting lasted long because the parents had concerns because we were changing their son's placement. I wanted to be sure the parents understood, and so I carefully reviewed their questions, etc. I felt they and their child deserved to have as much time as they needed for this important meeting. I was reprimanded by my administration, who said that IEP meetings must be short. What does the law say on this? Shouldn't parents be allowed enough time and opportunity to understand the process and what they are agreeing to?

Dear Carrie:

There is no legal basis to arbitrarily limit the length of time of an IEP meeting. If the time constraints of the school necessitate ending a meeting without enough time being available for the meeting to be properly conducted or for legitimate discussion by staff and/or parents to take place, the meeting should be adjourned but rescheduled at a mutually convenient time and place to allow the IEP team to adequately conduct its work.

The law is clear that parents must be given a "meaningful opportunity" for participation in the IEP process. While this is subjective, it appears that you felt that the parents' questions and concerns were legitimate and justified further discussion. As such, it would seem that more time was needed for them to have a "meaningful opportunity" to have their concerns addressed. As for your effort to achieve this, schools should not punish or reprimand school staff for following IDEA procedures or for attempting to raise appropriate concerns about the process or the needs of the child. In fact, a recent court decision ruled that a teacher was improperly punished for attempting to insure that the rights of the students and parents were being properly protected.

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.

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.

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.

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.

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.

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.

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 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 opt out of an accommodation that is listed on the IEP?

What does the phrase "mandated accommodations" mean for a child with an IEP? Does it mean that when the child is offered the accommodation(s) that he or she must use them all of the time? For class work? For school testing? For state testing?

Is there a law that states that the child is required to take the accommodation? Three of my seven students have declined using them except for during the state testing. They are being told that they must use them all of the time. Of course the probability exists that it may be to their benefit; however, in specific situations children have opted out and done well.

Is it their right to be able to choose or must they be coerced/forced to comply? Several other teachers and I would be most grateful for your advice on this matter.

Dear Pam:

Your question addresses the meaning of the phrase "mandated accommodations." I am not sure of the specific circumstances in which the phrase is being used, but as a general matter, accommodations are mandated if they are listed in the child's IEP. They may be listed as applicable under all circumstances or the IEP may describe them as applying under some circumstances, but not others.

Generally, though, if there is a need for an accommodation, it should be provided consistently in the various settings where it would be relevant to the child's ability to function in relation to the specific task.

In addition, there are various ways that accommodations are sometimes qualified, through language such as "as needed," "at teacher discretion," "at student request," or the like. If the parents and team feel that the child needs the accommodation, it should be written in declarative language. If the accommodation is only needed from time to time, some language should be included to describe the circumstances and to ensure that it will be used when needed.

If a child opts out of using an accommodation, it may be because they don't need it (as evidenced by their succeeding without it). However, many kids may opt out of an accommodation because they are embarrassed, don't want to be viewed by their peers as different, or may have unrealistic awareness of the importance of the accommodation.

Under these circumstances, and depending on the child's age and level of understanding, this is an issue to be addressed in relation to their self-awareness and self-advocacy. Whether the accommodation should be "required" in the face of the student's objection would need to be determined based on the situation.

Can I get my son's IEP removed at any time?

Hi Matt,

My child is 7 years old and the school wants him to get in the IEP program. I wanted to know if it will be confidential. Who will know? How will it affect his future? And can I get the IEP removed at anytime? Please let me know....

Thank you, Susan

Dear Susan:

A student's school records, including their special education status, are protected from unauthorized disclosure without parental consent under several federal laws and most state laws. In the real world, these legal protections are not always completely effective, even where the school is trying to maintain confidentiality, as errors are made in record-keeping or disclosure of records that result in unauthorized disclosures.

Further, in some situations, it is operationally impossible to totally protect confidentiality. For example, if the student is participating in a special education program or receiving services from special education staff, other people (adults and students) may figure it out simply from observation.

With respect to your question of whether you may remove your child from special education at any time, the law recently changed in this regard. Prior to 2008, a parent could not remove a child from special education back into regular education without the school's agreement or an order from a hearing officer. However, in 2008, the U.S. Department of Education amended the federal special education regulations to provide that parents now have an absolute right to withdraw their child from special education at any time.

That said, if the parents make this choice, the school district is no longer obligated to provide the child special ed services and cannot later be held legally responsible by the parents for the school's failure to provide an appropriate special education program.

How can I challenge statewide tests that I feel are in violation of my students' IEPs?

I want to challenge statewide tests. I feel they are in violation of the IEP. If a child's current reading level is a second grade level, the IEP states that all work must be modified at his instructional reading level, even if that child is in eighth grade. How would it then be legal to make that child take the Ohio achievement test at the eighth grade level? It would be a violation of the IEP.

How can the state continue to get away with this? Not only does testing above documented ability level violate the IEP, it causes a lot of unnecessary pain to these children. How can I go about challenging this?

-Sped teacher in Ohio

Many people are concerned about the negative and discriminatory impact of high-stakes tests on children with disabilities. Litigation has been spreading on this issue throughout the country. You are to be commended for your interest and commitment to your students.

You may want to contact your union, though they may not be interested in getting involved in this issue. There are several not-for-profit legal advocacy groups that are working on this issue. They include the Center for Law and Education, in Washington, D.C., the Public Interest Law Center of Philadelphia, the Disability Rights Education and Defense Fund in Berkeley, California, and other groups.

You may also find information on this issue on the website of the National Disability Resource Network.

What should we do if we disagree with the school's interpretation of the IEP accommodations?

My daughter is 14 and has had an IEP for eight years. She is now in middle school and her IEP seems ambiguous; the teacher, caseworker, and I have different definitions concerning her accommodations. For example: study guides - if the teacher hands out a note packet to the entire class, she has informed me that this is considered my daughter's study guide. I feel as if the playing field is not being leveled for my daughter to succeed in the LRE.

-Linda

Dear Linda,

Your question relates to concerns about ambiguities in the IEP that are resulting in conflicts over appropriate accommodations. Unfortunately, because the IEP is based on what is written and how those words are interpreted, there often are disagreements as to what the provisions of the IEP mean.

These disagreements are unavoidable, but can be reduced by careful attention to the wording of the IEP. As much as possible, it is useful to spell out the detail of what the various accommodations mean - how will study guides be provided, by whom, and when. If an accommodation is specified as "as needed," how is that decision made and by whom? Under what circumstances will a student be given extra time for homework or tests or be allowed to use a quiet room? What are the criteria for deciding if a student needs reduced quantity of work and who will modify the work? When may a student use a word processor or tape recorder instead of writing things by hand? If books on tape are needed, who will order them and when will they be available (before the material is being addressed in class)?

There are an infinite number of variations, but the more that ambiguity is removed, the more accountability there will be and the less chance there will be for conflicting interpretations. However, sometimes there is a risk that micromanagement of the language of the IEP will itself produce conflict and disagreement, so it is important to pick your battles.

In addition, if there is dispute over the meaning and implementation of an accommodation, you always have the right to ask that the IEP be modified to reflect your interpretation and/or that an IEP meeting be held to discuss the problem. The school is not obligated to accept your position, but this at least creates a means to put the problem on the table and try to resolve it.

If it can't be resolved, you retain the right to seek a due process hearing to prove that the accommodation, carried out in the way you feel is needed, is necessary for your child to receive an appropriate education. You will need to be able to prove why this is needed and should consult with a knowledgeable special education attorney or advocate before taking this step. However, sometimes, schools will reconsider their position in mediation or a resolution session in order to avoid having to go through a due process proceeding.

Can the Board of Education overturn an IEP?

What can be done if, after an IEP meeting, the Board of Education does not approve the IEP that was discussed and agreed upon at a CSE meeting?

Liz

Dear Liz,

If the school district does not follow the IEP that has been agreed upon, it is in violation of the IDEA. Among other things, the decisions about your child’s education are supposed to be made by the IEP team, with your involvement. A decision by others outside of the IEP meeting would be inconsistent with this requirement. You could file a complaint with the state department of education, a complaint with OCR, or request a special education due process hearing. You should consult a knowledgeable special education lawyer about the specific issues in your case.

What should a parent do if their child is socially promoted to a grade beyond their abilities?

My child is eleven years old and is in Jacksonville, Florida. For three years, she has made grades of Ds & Fs. In our last meeting, the school professionals said she can do the work and will be fine for sixth grade in junior high. I know my child and I want her to stay back in the fifth grade, but the teachers, staff and school board refuse to discuss our situation. They have not returned my calls after eight weeks. I've been on them for three years. My child failed the fourth grade and they went ahead and passed her based on her FCAT scores. They said she can go to the fifth grade and work on fourth grade math, but that never happened. Now what?

Thank you for your help.
Michelle M. Smith

Dear Michelle,

Your question doesn’t mention whether your child has been evaluated to determine whether she is eligible for special education. Rather than holding her back, you might want to request that she be evaluated to determine why she is having difficulties and to identify what extra help she might need in order to make more progress. If she is already in special education, you should investigate whether the IEP is appropriate, whether she is getting sufficient services and the right kinds of services and whether it is even being implemented as written.

You might seek either an updated school evaluation or obtain a private psychological evaluation to try to determine why she is having academic difficulties. The decision as to whether a student should be retained is complex. You may want to research whether this is generally a good idea or may make things worse in the long run. There is a lot of research available on the internet about grade retention that might help you to answer this question.

How does a parent handle a “cookie-cutter IEP” with goals that are not specific to the child's needs?

My seventh grade son has a classification of LD and ADHD. His IEP goals are too global. They need to be customized to include sequential, structured benchmarks. The CSE always says we can not talk about instructional methodology at a meeting. How do I get my son's customized rather than the cookie-cutter global goals they provide? What specific case law states that at a CSE meeting, a parent and team can discuss methodology?

Thank you so much.
R.B.

Dear R.B.,

Under the IDEA, special education is defined as specialized instruction, including adapting, as needed, the content, method and mode of delivery of instruction. This puts methodology on the table if the school’s programming is not working. In addition, under the 2004 IDEA amendments, the school is required to provide a program that is based on scientific research to the extent practicable. This also can and should be discussed at the IEP meeting. If the school’s program doesn’t use a specific method that is supported by the research (or doesn’t use a particular method at all), the program can be challenged.

What happens to the IEP when the child moves to middle school?

Does an IEP stay the same when your child goes to middle school? I have a child who goes to school 3.5 hours a day and studies math, reading, and language. The teacher is telling me that things are different in middle school and my daughter has to take science and lose one of the three recommended!

She also states my child has to change classrooms no matter what! Nothing in the IEP is being followed and I am considering homeschooling her if the IEP cant be followed. Please help!

Debra

Dear Debra,

The IEP is supposed to be reviewed and revised on at least annually, regardless of whether your child is changing grades or changing schools. The IEP must be tailored to the child's individual needs, regardless of the setting in which it will be implemented.

As students move up grade by grade, the IEP must be adjusted to take into account the differing needs the student may have in response to the increased demands of the higher grades and the new schools. If the school is failing to implement the IEP, this is a potential violation of your child's right to a free appropriate public education, regardless of which grade or school they are attending in the current year.

What do you do if your child is removed from special education and then does not do well?

My son is a junior in high school. He has received special education services under an IEP throughout his academic career due to a combination of learning disabilities. Each year, he is assigned a case worker who helps us choose his classes and monitor his progress. Up until now, decisions about which classes Josh should take have been left entirely to his case worker and me.

This year, however, when Josh passed the CAHSEE tests, he was removed from 83% of the special education classes in which he was enrolled and put into mainstream classes that he is now failing miserably. At first, I supported the decision to move him because I think it's important that he work to his full potential. Once it became obvious that he needed to move back to special education classes or risk failing and not having enough credits to graduate on time (he is currently down 20 credits and has no room for failure whatsoever), I have met with school counselors and administrators at least five times to voice my strong opposition to this path "mainstreaming" that he is being forced into.

Although his case worker agrees with my position, administration has repeatedly refused to put him back into special education classes. He will not meet graduation requirements if he is made to stay in these regular classes. His performance reflects his lack of understanding since they moved him, but they insist he is not working to his full potential. Is there anything I can do? Thank you for your time and attention.

Kimberly

Dear Kimberly,

You are concerned that your district moved your son from primarily special education classes to mostly regular education classes in his junior year, that he is now failing, and that the district is unwilling to return him to special education classes. First, although you indicate that you have met with administrators five times, your question is unclear as to whether those meetings were formal IEP meetings. If not, it would be advisable to request one.

Second, if there is a dispute as to why your son is failing in regular education, you may want to either request that the school conduct an updated evaluation of him to determine the cause of his failure, rather than assuming he is simply not working to his potential, or seek an outside psycho-educational evaluation at your expense to see if the clinician can help you to demonstrate why he is having difficulty and the need for special education. If you disagree with his placement, you always have the right to request a due process hearing to challenge the school's decision.

Can the school district refuse to provide a service because there is no money for it?

Can a Director of Special Education of a District state that our son will not receive a paraeducator in his class due to funding? His IEP states: "Beau needs paraeducator/adult help to help keep him focused during content area (science and social studies) in the classroom."

I thought that this IEP is a legal and binding document. Isn't the funding that Beau brings to this district via his disability diagnosis supposed to help cover this? How can he tell the Special Education teacher that she will not be receiving an aide due to funding issues after she has made the request and it is noted in his IEP as needed?

Please advise, as this is the type of thing that really begins to anger a parent and question what these folks are doing. We sure seem to have enough money to put artwork in the courtyard, but not enough money to implement help with IEP requirements?

Thank you,
Steve

Dear Steve,

If the school's IEP specifically lists the need for a one-to-one aide, the school should not use lack of funds as an excuse for not providing the service. However, it may be important to make sure that the one-to-one is listed on the services page, with actual minutes of service, so there is no doubt or question of the commitment to actually provide it.

What are some legal strategies to help a child with a disability who is being punished for behavior related to their disability?

My daughter with learning disabilities was isolated in the classroom as a punishment for having difficulty focusing. Recently, she reported that she was threatened with being sent to the principal's office because she didn't ask for help with a math assignment. She is very intimidated by this resource room teacher who frequently yells at her.

My daughter doesn't have behavior problems, but is struggling with her LD in math. We have had numerous meetings with the principle and teachers. Is there legal protection for a disabled child in the classroom being treated in a punitive way?

Sheryl

Dear Sheryl,

Your concern that your child is being punished by the resource teacher due to her difficulty in focusing, which may be related to her disability, which you indicate is a learning disability in math. While your note indicates that your daughter does not have behavioral problems, difficulty in focusing is a behavior which may be due to her already diagnosed issues or to a separate undiagnosed disability.

In addition, if your child is being sent to the principal for problems she is having in the resource room, it would be appropriate for you to request an IEP meeting for the purpose of developing a positive behavioral plan which will assist her with the behavior that is leading to her being disciplined. You may also request that the school district perform a functional behavioral analysis and develop a behavior intervention plan to deal with the difficulties in focusing and any other problems that are contributing to her being sent to the principal's office.

In addition, from the circumstances that you describe, it is possible that your child's teacher is not using the appropriate techniques to address her math disability. It may be appropriate to review her IEP to analyze if different or more appropriate strategies could be implemented to address the math problem.

You may wish to consult with an outside educational specialist or clinical psychologist to review her program and the strategies that are being used in the resource room to assist her to come up with additional ways to address this problem.

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

I have a 15-year-old son diagnosed with auditory processing disorder and bipolar disease. I was recently "asked" to put him on home study and receive five hours a week of instruction. I have him under regular care of a psychiatrist and am deeply concerned that five hours a week isn't sufficient for a freshman in high school. The teaching staff is complaining that he is sleeping in school and is defiant (only at times) to his main resource teacher. They have basically kicked us out of school at this point. What can I do?

Jeanette

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.

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

My son has ADDHD and is under the care of a psychiatrist and psychologist who both state my son should be covered under 504. His school does not feel he qualifies for IEP. My son is about to fail his classes due to his problems. Can anything be done?

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.

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

My 13-year-old son was diagnosed with SID (sensory integration dysfunction) and CAPD when he was eight years old. He has also been in speech and language since the second grade. I have been battling his school district to get him either an IEP or 504 for two years now and they keep trying to tell me that CAPD is not a learning disability.

His teachers are not accommodating and have deemed him lazy despite recent CAPD and Speech & Language evaluations. Despite his testing, his lack of organizational skills, his lack of improvement on NYS Assessment testing, and his continual drop in grades, his school refuses to acknowledge his disability, claiming he does not have one. HELP!

Kelly

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.

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

I have a student on an IEP. His mother does not want him in an separate class for teaching IEP students for reading. She wants him in a regular education class. My district, at the junior high level, has them in a separate special education class for the goal areas so they can receive their specially designed instruction.

Can a parent sign a child out of special education before the next evaluation is due, or can they insist that the student be in a regular ed class and not in an IEP/special ed 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.

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

What is the legality/appropriateness of placing a child with a 504 plan, based on behavioral issues, into a self-contained special education classroom for students with emotional/behavioral struggles? My school district believes that if a student has behavioral problems, but does not have any intellectual deficits/discrepancies, they do not qualify for an IEP.

These children are placed on 504 plans, and when they are not successful in the general education setting, they place them in a special education setting without an IEP. Thank you for your time and assistance.

Sincerely,
Justin

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.

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

If a school district has failed to supply home services as indicated on an IEP, what recourse do the parents have. Our child's home teacher was fired by the district as they say was for "personal reasons." This was extraordinary and our child made significant progress. The second teacher that came was incompetent and we fired her. Since then, six months later, no teacher has been sent and our child has suffered significantly. We have paid out of pocket for services the school was supposed to provide. Please help!

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.

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

We live in the Chicago area. My son is in third grade. He has had an IEP at his current school for four years. The IEP form that our school uses includes a section for quarterly progress updates for his various educational goals. Is the school required by law to send us progress updates on a quarterly basis for all of his IEP goals, and if so when are they required to do so? We currently receive updates on some goals (not all) but these updates are not consistent across all the different goals that are listed on his IEP.

If they are not required to send us regular updates, can we request formal updates on his progress as part of the IEP? Also, is the school required to have all educational goals prepared and sent to parents within in a certain period of time prior to an IEP meeting. We often receive final IEP papers only one or two days prior to the actual meeting which makes it challenging to prepare and review the documentation adequately prior to the IEP meeting.

Thank you,

Colin

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.

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.

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

I am a special education inclusion teacher. There is a first grade girl who has been found eligible for services under the category of Emotional Disturbance. She is below grade level in all subjects and when upset, she hits, kicks, scratches, name calls and runs away from school. For this reason, her IEP was written for a self contained ED placement.

The IEP team felt that this was what was best. It would allow her to be in a small class setting where she could receive more individualized and intensive instruction and learn some strategies to deal with her emotions as well as some replacement behaviors.

The school system where I work said that they did not have a self contained ED placement for her because all of these classrooms were over capacity. As a result, this child sat in a general education classroom for nearly three weeks, even though her IEP called for a self contained setting. Her IEP was not being followed and we were out of compliance.

Although I brought this to the attention of administration numerous times, nothing was done. They finally decided to have me re-write her IEP for a class/program that was in our building, although this is not the right placement for her. She continues to be disruptive, physically and verbally abusive, attempts to run when angry and is not learning because they let her do what she wants to keep her happy.

I am concerned about the long term affects this will have on her. What should I do?

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.

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

Do IEPs give us the right to have our children repeat a grade? Our seven-year-old son and daughter (twins) have IEPs for speech and reading. Their school's policy is to pile on the special services and keep them moving through the system. We feel they may do better repeating a grade so those special services can help them catch up a little.

Bella

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.

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

Hello, I'm a Resource Specialist. The policy regarding change of placement for students requires me to submit extensive documentation to the district special education coordinator. She needs to be present at the change of placement IEP. She says she needs to meet with her administrative team to decide whether to have a change of placement IEP after the information is submitted. I know we all need to work together, but isn't it the IEP team that decides on placement?

Vivian

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.

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

My son received the Weschler IQ test at age six. His average score was 91, but there was a wide range in his subtest scores from 80 to 118. Since then, he has been diagnosed with severe expressive and receptive speech problems, dyscalculia, dysgraphia, ADHD and bipolar disorder. He should be in second grade but was retained. He still can not read.

At the IEP meetings, they tell me that he is doing as well as we can expect with his "low IQ score." I find this attitude offensive, especially because they are averaging in subtest scores in areas where he has a known disability. Are they allowed to include subtest scores in the average IQ score when they know that he has a disability in that area? How do I get them to drop the "that's all we can expect from him" attitude?

Heather

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.

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.

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

My son has ADHD, PDD-NOS, he is now in 2nd grade. Last year, he was in a mainstream education class with pull out for math and reading. Due to his inattention and behaviors in his afternoon class, they put him in a self-contained class this year for more one-on-one. I feel he is being held back. He is grade appropriate for learning just lack of attention and focus.

Is it his right through IDEA to recieve a private classroom aide to asst him, instead of being secluded in self contained? Or is this a personal decision made by the school as to whether or not they will provide it?

Sandy

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.

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

My son just completed first grade and the school is demanding that he be retained due to his struggles with reading, yet they do not have a plan for intervention; they say he just needs more time it'll just click. The teacher has noted: "he is strong phonetically and orally."

They originally did not want to test him — the teacher did not feel he had a learning disability. I requested in writing that they test him; the results they returned were that he did not qualify, as they suspected. I had him re-tested by an independent evaluator and she found that there was enough of a discrepancy that he would qualify for an IEP for a reading disability.

I'm trying to gather as much information as possible on the practice of retention. On a general basis, would it be better for a child to be retained in first grade to catch up on reading (he did not exhibit problems in any other subjects) or to continue on to second grade, with support from the school (IEP) and a tutor after school three days a week?

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.

Best practices generally, based on current research, do not appear to support retention as a means to address problems such as you describe your son experiencing.

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).

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

How do I withdraw my son from his IEP? I don't see any progress made, his grades are worse; he is failing classes when he used to get A's and B's before the IEP went into effect. Also, through group sessions, he is meeting kids that I would rather he not spend time with.

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.

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

Mr. Cohen,

We are wondering what we can ask for at an IEP in regards to accommodations and assistive technology for our ADHD son. I was reminded today by the special education teacher that we are "allowed" to present evaluations and recommendations from outside specialists, but the school is not required to consider them. This does not sound like a "team" approach to me.

I am very excited about the assistive technology resources available to our child and do not understand why a school would refuse to incorporate it in the IEP if it would allow him to spend more time in regular classes. Also, if we disagree with the "team's” IEP decisions, I know we can refuse to sign the plan and revisit the issues, but then services will not be ready at the beginning of the next school year.

Do you have any suggestions on how to present our academic wish list for our son, and get what we feel is very important for his academic success?

Thank you,

Amy Black

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.

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

I teach a regular 3rd grade education class. I have a student who has an IEP for ADHD. This child has behavior problems, anger management problems and problems with peers. I have repeatedly requested an aide for him and have been refused. The parents have not requested one because they don't know that it is an option.

At a recent IEP meeting, this child was placed in a resource room for help with reading comprehension. I think he could have stayed in a regular classroom with the support of an aide. Is the district correct in denying coverage for this child? I have been told that I can not fill out the paper work that would prove one is needed. The school district is on a mission to dismiss as many aides as possible because of monetary issues.

Thank you

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.

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.

If the school does not “believe in dyslexia,” can they deny my son eligibility for an IEP and a 504 plan?

My third grade son has dyslexia. He was diagnosed outside the school system. The school says they do not believe in dyslexia. I have repeatedly asked for some accommodations and have expressed concern about the stress he is under. The school ignored me.

Finally, they are going to see if he qualifies for an IEP. If not, what can I do? The school also told me they do not do 504 plans because if a student will not meet criteria for an IEP, they will not be eligible for a 504 plan. Then why have a 504 plan? Any advice?

Allison

Dear Allison:

Your questions, as well as many others, raise questions about what the definition is of a learning disability is for purposes of eligibility for special education. You both also describe situations in which your child has been diagnosed as having dyslexia, but the school reports that dyslexia is not a covered disability or one the school recognizes. The federal special education (IDEA) regulations define a specific learning disability as follows:

(i)Specific learning disability. Specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell or do mathematical calculations, including such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.

(ii)Disorders not included. Specific learning disability does 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 Sec. 300.8(c)(10)

Obviously, dyslexia is specifically referenced as an example of a possible specific learning disability. However, in order to qualify for eligibility, as with any disability, it must be demonstrated that the disability adversely affects educational performance and that the student requires special education. 34 CFR 300.308. However, in evaluating a child’s educational performance, the school must consider the child’s developmental and functional progress as well as academic progress. 34CFR 300.304(b)(1).

In relation to evaluating whether a child has a learning disability, the statute and regulations have some specific additional criteria. The regulations provide a complex and confusing procedure that also requires, among other things, that the child does not achieve adequately for the child’s age or to meet State-approved grade level standards in one or more of a number listed areas, such as oral or written expression, listening comprehension or various reading and math skills, when provided with learning experiences and instruction appropriate for the child’s age or State- approved grade level standards; and either:

  1. the child does not make sufficient progress to meet age or grade level standards in one or more of the areas identified when using a process based on the child’s response to scientific, research-based intervention; or
  2. 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 to by the group (presumably the IEP team) to be relevant to the identification of a specific learning disability, using appropriate assessments; and
  3. the group determines that the problem is not primarily the result of a visual, hearing or motor disability, mental retardation, emotional disturbance, cultural factors, environmental or economic factors, or limited English proficiency. 34 CFR 300.309 (a).
  4. Any evaluation for a learning disability must also include observation of the child in the child’s learning environment to document the child’s academic performance and behavior in the area of difficulty. 34 CFR 300.310.

Before a district considers whether the child meets the criteria for eligibility as having a learning disability, the statute allows states to adopt procedures to allow schools to provide scientific, research based intervention in regular education. Data from that intervention process must be considered by the eligibility team in making the decision as to whether the child requires evaluation and/or meets criteria for LD. 34 CFR 300.309.

However, the school must promptly follow the procedures governing referral for evaluation if the child either fails to respond to intervention in an appropriate period of time or the child is referred by the parent or staff for an evaluation. 34 CFR 300.309(c).

This means that a parent retains the right to seek an evaluation even if the child has been referred for intervention through a regular education reading intervention program. If the parent requests an evaluation by the school, the school must either agree to conduct the evaluation and obtain written parental consent or it must provide the parents with notice that it is denying the request for evaluation and that the parents have the right to seek a due process hearing to challenge the school’s refusal.

How do I get accommodations for standardized college admissions tests, such as the SAT and ACT?

My 9th grader has been on an IEP since 2nd grade. He has some ADD with a right hemisphere processing deficit. Do his accommodations for testing apply to PSAT's and SAT's and how do I alert the proctors of these tests?

The agencies that administer the ACT,SAT, and PSAT. have specific procedures for applying for accommodations on those tests. Generally, these applications are submitted on behalf of the student by the high school guidance/counseling staff based on time lines provided by the test administrators several months before the desired test administration date. Up-to-date testing is necessary to support any request for accommodations.

A child’s history of eligibility for special education or 504 accommodations helps to establish a record of disability, and the need for accommodations, but prior eligibility does not by itself provide a basis for eligibility for accommodations on the tests. Those decisions are made by the Test Administration agencies based on a combination of evaluation data, a record of impairment, and, to the extent provided, prior history of special education or 504 services.

Can a parent do anything if the child clearly has too much homework after school?

We live in Florida. I HATE FCAT!!!! My daughter is in the fourth grade and has a learning problem. I had her tested privately since the school would not do it. She also has ADHD, and is on a 504 Plan (FINALLY!). She takes Adderall and I still do not see any progress - although her teachers say differently. Her basic problems are reading comprehension and math.

Please tell me if I am overreacting or not. I feel she is being crammed with stuff for FCAT and am really sick and tired of it. She is 9 years old and I know she is stressed out.

Monday-Friday, she goes to her SAI class. Monday/Wednesday/Friday she attends another class from 1 p.m. until 1:45 for more FCAT reading comprehension instruction.

Tuesday/Thursday she has FCAT class after school for one hour (Tuesday reading and Thursday math). Every night she is REQUIRED/SUPPOSED to do 30 minutes of FCAT Explorer (weekends included). Every night she is REQUIRED/SUPPOSED to do 30 minutes of reading so she can take Reading Counts tests (weekends included). Then we have hours of homework almost every night and HOURS on the weekend. I say hours because I do it with her and try to make sure she understands it as it seems her school is not doing a good job. I will not let her just do and do it wrong.

Is there a limit as to how much homework they are allowed to give each night? I am looking into home schooling (and I work full time). We cannot afford private, (even with McKay funding).

Thanks.

Most school systems have standards for how much time should be spent on homework by students at each grade level. Under IDEA 2004, the school must consider not only the child's academic performance, but their developmental and functional performance as well. If a child is spending grossly excessive time on homework, this may be evidence of a functional impairment that has not been previously addressed. In any event, any student with an IEP or 504 plan may be eligible for accommodations, which can include reducing the amount of homework, particularly with respect to the homework assignments that involve multiple repetitions of the same skill, e.g. math facts or multiple repetitions of spelling or grammar rules. Accommodations can also include extended time for completing homework and/or modified grading of homework based on work completed, as opposed to work assigned.

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.

What should a parent do when their teenage son has behavioral problems that might lead to fights with other students?

My son has been diagnosed with ADHD and has been retained twice. He is now in the 10th grade and still has multiple issues with his behavior. He has a teacher that agitates him and this has been brought to the attention of several school representatives. No one has bothered to address this until he is now being suspended for three days and is being sent to an alternative school for 45 days because an associate principal was hurt after trying to hold him back after he was hit in the back of the head by another boy at his school. Another assistant principal told another one of my son's that he heard friends of the boy who hit my oldest son that there were going to jump on both of my sons at the part later on that day. My younger son told my oldest son this news which made him even more upset.

Based on the manner in which the school handled the situation, should my son be sent to the alternative school, especially since the assistant principal was present in the ARD we had for my son when he first started attending that school? Knowing this information about my son, should he have not tried to do more to remove my son from that situation? It could have kept the associate principal from getting hurt.

If you disagree with the school's decision to send your son to an alternative school, you have a right to request an impartial due process hearing to challenge the transfer. However, your child will be in the alternative 45 day placement while the hearing is pending. You have a right to request an expedited hearing, which means the hearing is supposed to occur within 20 days of receipt of your request. However, as a general matter, the school district's failure to remove your son from the situation demonstrates poor judgment, but would have greater legal significance if your son's IEP referenced this behavioral problem or had a specific procedure for dealing with it. In the future, you should try to ensure that the IEP has a behavior plan which addresses these issues and prescribes how the staff should respond if your son is having difficulty, regardless of whether he started the problem or not.

This benefits your son in two ways. First, it provides a more proactive and positive plan to help him maintain appropriate behavior. Second, it sets out the school's responsibilities and gives you a strategic means to hold them accountable if they fail to follow the plan.

Must the school have two IEP meetings for each parent if they are divorced?

Is the school legally obligated to hold two separate IEP meetings if divorced parents refuse to agree to a mutually agreeable meeting date and time?

Joyce

No. The school is obligated to make reasonable efforts to involve both parents if they have joint custody, but it is not obligated to have two meetings. If one parent has custody for educational purposes, the school would not be obligated to consider the other parents schedule at all. Unless the custody decree limits a non-custodial parent's right, they have a right to attend, if they are able to, at the time scheduled with the custodial parent. Again, unless limited by the custody agreement or order, they would have the right to access the information, including the IEP or any report of the meeting even if they don't attend.

If a child gets accommodated in a special education classroom, can the school say that they must stay in special education to keep the accommodation?

My 10 year old son has LD in reading, math, & writing. He has spent all his elementary years in a self-contained special education class with limited mainstreaming. He started losing the very limited progress he was making. He reads at about first grade level. Last year he has very depressed over the special education class and wanted to be in a mainstream class. We had a very stressful time over this and had to get extra counseling for him until the school finally, out of the "spirit of compromise," said he could attend mainstream 5th grade with RSP services for math, reading & writing. They also agreed to a neuropsychologist to test him, but the test gave no strategies or recommendations for reading instruction.

He is now in the mainstream 5th grade and very happy. No behavior problems and has made friends. The problem is I think he could benefit with assisted technology like Recordings for the Blind and Dyslexic and a computer read out loud program. The special education director informed me that if I call an IEP meeting to address his reading program and assisted technology, she cannot defend his placement in the mainstream class. She will send him back to the special education class. Can the school do this if I request an IEP meeting? I can't put him back into a class that made him so unhappy where he had limited progress. He has already made progress in math this short time.

Thank you!
Robin

Your question essentially raises the issue of whether parent of a child with the potential to be successfully mainstreamed can be forced into an either/or choice of either mainstreaming with no accommodations or support vs. self-contained with accommodations and support.

The clear answer is that the law requires that children with disabilities be mainstreamed to the maximum extent appropriate and that removal from the regular class room occur, only when it is determined that the child cannot be successful in the regular classroom even with the provision of supplementary aides and supports. The types of accommodations you are seeking, books on tape and related assistive technology are standard non-controversial supports for children with learning disabilities in regular classrooms.

It sounds like your special education director may be trying to intimidate you into either accepting the self-contained class to get the supports or the regular ed class with no support. The proper option sounds like the regular education class with proper supports. You might also consider asking the school district to provide an Assistive Technology Evaluation, which should help to establish the types of technology and accommodations which would support your child in regular education classes.

Can the school send a child home because he did not take his medication that day?

I want to know if the school system can make an ADHD child go home because he hasn't had his meds that day. He wasn't doing anything except not doing his work and it was either go home for rest of day or suspend him for a day.

Thank you,
Susan

Dear Susan:

Your question asks whether a school district can make a child to home because they haven't had their medication that day. Schools may not condition participation in school on whether the child takes medication.

The decision to take medication is a private decision between the family and the physician. If a child is not taking medication, the school still has an obligation to serve the child and must develop alternative strategies for doing so that provide the child a free appropriate education.

If, as seems to have happened in your case, a child is sent home on a single day, for not doing their work, you should investigate whether other children who are not doing their work are sent home. You might also want to build into the child's IEP or 504 plan a contingency or backup plan for what happens if, for whatever reason, the child is not medicated.

If the child is not causing disruption or problems to others, it would seem highly inappropriate for them to be sent home or threatened with suspension. Further, if the child is sent home involuntarily, it should be treated as a suspension, whether or not the school officially labels it as such.

Is a child considered to be receiving an “appropriate education” if their occupational therapist is absent half of the time?

My son has Aspergers. Has an IEP. He is supposed to receive OT twice a week. If he is lucky he gets it once a week. The OT is out sick a lot. Is the school required to hire a sub? We live in NY. Who do I speak to? What are our rights?

Thanks,
Christine

Dear Christine:

You are concerned that due to provider absence and other circumstances, your child is only receiving half of the related services that he is supposed to. As would be true in general education, the schools are granted some small lee way in relation to things that come up that cause teacher absence, emergency school closure (snow storms) and the like. With regard to implementation of IEP or 504 services, a school would generally be allowed some small wiggle room in relation to missed services.

For example, it is not unusual for related services to start a few weeks after school starts, in order for the staff to get organized. While I disagree with this practice, few courts would rule that a few missed sessions constituted a denial of a free appropriate public education.

However, when the services missed reach the level of exceeding 15% or more (my own arbitrary number), let alone missing 50%, there is clearly a denial of FAPE. The service level and frequency was established based on the professionals' judgment about what was needed.

If 50% of services are being missed, the child is not getting what is needed. Solutions could include the one you made, to wit to have a substitute provider available. I would want to insure that any substitute provider was aware of the child's program, familiar with what was being worked on, and able to interact with the primary provider before and after the substituted service to make sure that it was meaningful, rather than just baby sitting.

An alternative would be to seek compensatory services to make up for the missed time. For example, if the therapist missed 15 sessions, the school should provide those 15 sessions at some other time during the school year to make up for what was lost. This is called compensatory education and is well established as a remedy when the school fails to provide appropriate services it has promised to an extent that interferes with the child's educational progress or functioning.

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.

Must accommodations that are written in the IEP apply to tests that place students in ability groups?

Our school conducts pre-testing each year to determine ability groupings of students. The school will not give accommodations to students taking these tests. They say that applying accommodations to testing for IEP/504 skews the results of where students should be placed. Their IEP's state that accommodations will be applied to ALL pre/post district tests. The IEP's have been signed by the principal, special ed director, and the parent.

Would an amendment to the IEP have to be signed in order to not apply the accommodation? Do school districts usually accommodate for internal assessments or do they leave that off the assessment page of an IEP? The school believes that our ability groupings would more adequately reflect where each student is currently performing if no accommodations were given. Some people are saying that the school would be eligible for more grant funding if there was a higher percentage of low level students.

Thanks
Kelly

Dear Kelly:

You raise a very interesting question, to wit, whether accommodations specified in the IEP apply to internal placement testing used by the school district. I would argue that they do and that any decision to do otherwise must be made based on a formal change in the IEP.

If the child is able to function well in other settings with accommodation, it would make little sense to deny them accommodations on the internal placement tests. The result would be that the child who is cognitively capable of handling higher level work, with accommodation, would be placed in a lower track program, not because of the inability to handle the material, but because of the absence of accommodation on the placement test. Qualification for state or federal funding should not be the basis for deciding whether a child receives accommodation.

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.

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.

What rights do parents have when their children are placed in a school that does not help them?

I have an 11 year old daughter with ADD, who has an OHI certification and an IEP with goals in Written Language, Reading, and Math. She also has numerous accommodations in all subject areas. We have "school choice" in our district, but we did not get the choice we wanted for her. Instead, she was placed in a IB Magnet school, which is a challenging curriculum across the board. I have already asked for a review of the decision. They only offer "accelerated math" as the math option at that school.

There is a political agenda to try to get increased enrollment in the school due to its location in a less desirable area of the city. I also have 3 other children that attended our first choice school that she did not get. Our number one concern is that they do not have a regular education program that can meet her needs at this Magnet school. Other concerns remain regarding her peer group there. What are my legal rights as a parent?

Ginnie

Dear Ginnie:

Your questions involves what options or rights are available to you in situation when your child is placed in a school based on factors other than their educational needs or IEP requirements, including placement in an inappropriate accelerated math program.

For children with disabilities, all decisions should be IEP driven. However, the IEP may not have been sufficiently specific as to rule out the school that your child ended up in. If your efforts to resolve this matter informally have been unsuccessful, you should reconvene the IEP meeting in order to revise the IEP to reflect the various problems that your child has and the programming that these problems require, including access to a math program that is academically appropriate for them. By virtue of revising the IEP, you may be able to effectively rule out the magnet program in which your child has been placed or to drive a new placement decision into a more appropriate setting.

Can a school principal unilaterally change an IEP?

I have a 16 year old student with a "label" of SLD. He has a history of behavior problems, mostly involving immature choices. He appears to have almost no self-control when it comes to making decisions. He's a great kid, but his placement before the recent IEP meeting was not meeting his needs.

The IEP meeting was held, with a team consisting of student, parents, counselor, IEP case manager, other teachers and the EBD specialist. The principal was supposed to come but did not show up. The other co-principal signed the IEP the next day. The team decided to increase the student's minutes in special education setting, including 3 periods with EBD specialist in his class to work on social skills/decision making, etc. We left him in his self-contained math and English classes and mainstream science, adding an extra science class with EBD teacher (who works closely with us). The student has not been successful this year; in fact, he was failing every class. The team determined that the schedule change would allow the student to recoup some credit.

I spoke with the principal a couple of days later and he agreed to and signed the schedule change form. Then, a week later, I received an email.out of the blue. The e-mail said that he had decided we were "way out of compliance", that a "full IEP meeting" had not been held, and that the student was to be put back where he was before the IEP meeting. He stated it was a "rare principal's directive". He did not consult the parents, the students or anyone else involved. In fact, the new placement seemed to be working and the student was very positive.

Was this legal? I can't imagine that it could be legal for an administrator to basically overturn the IEP unilaterally. The IEP did state that the student's schedule would be changed, where he would be and why, and documented the number of minutes.

Where do I go from here? I told this student that I would do my best to rectify the situation. I'm at a loss, and am hoping that you can help. Thanks so much!

Sharon

Dear Sharon:
Your question involves whether a principal may unilaterally change or retract an IEP after a duly constituted IEP team has made a decision to change a placement.

Under the requirements under IDEA, no school staff person, whether principal, special ed administrator, or superintendent, may unilaterally change an IEP outside of the IEP process. The IEP process of the IDEA requires that the parent be involved in the IEP meeting and that any changes in placement be made as the result of a decision of the IEP team. Further, if there is a recommended change, the parent must be provided with "prior written notice" of an appropriate decision of the IEP team. As referenced in the prior answer, under IDEA 2004, an IEP may be subsequently modified by mutual agreement of a member of the school staff AND the parent. However, it may not be unilaterally modified by a member of the school staff, regardless of their position, without the agreement of the parent. The amount of time spent in a special education class should be regarded as a placement change which is governed by the IEP requirements of the law. If this matter can not be resolved through informal mechanisms, it would be appropriate to consider requesting a due process hearing.

Can the school change the IEP after it is completed without the consent of the parent?

My daughter has been diagnosed with a Non Verbal learning disability. Until a neuropsychologist evaluated her she was not able to qualify for an IEP (despite the fact that she is failing 5th grade). She is two years below grade level in reading comprehension. Finally after all testing was done, she was given an IEP for reading comprehension. She needs this support. We signed all legal documents for the IEP. We were glad that finally she was going to get the help she needs.

We received an email today from the Special Ed teacher telling us she had made a mistake and that we need to change her IEP reading goal. The Special Ed teacher said my daughter only qualifies for written language. This is a joke! Both reading and writing go hand in hand. If she can't understand what she reads how can she write about it? What are our legal rights? Can we protest the IEP and keep reading comprehension as one of her goals? Can we just add the written language goals?

The Special Ed teacher wrote it incorrectly. The principal, classroom teacher, my husband and I were all there to hear the IEP goals. We all agreed to them. The IEP was signed. We meet next Tuesday. I want to be prepared.

Thanks,
Lori

Dear Lori:
Your questions relates to whether an IEP can be changed after the IEP meeting based on a teachers determination that it was completed incorrectly or needs to be changed. Under the IDEA 2004, an IEP may be changed based on an informal agreement between a member of the school staff and a parent. However, it can only be changed based on agreement with you, not based upon the unilateral decision of the school staff or the entire school staff for that matter.

If the school and the parent wish to informally change the IEP, it is important for the parent to obtain a copy of the proposed change in advance and agree to the change in writing in order to assure that the proposed change is accurately recorded and carried out. On the other hand, if the parent does not agree to the proposed change, the school MAY NOT implement the proposed change without requesting a new IEP meeting. If the school district recommends a change at the new IEP meeting, the parent may request a due process hearing to object to the change.

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.

What should a parent do when a school offers a program that does not help their child?

Dear Mr. Cohen,

We disagree with the school's interpretation of the underlying source of my 13-year-old son's school problems. His first IEP was two years ago and identified him as Emotionally Disabled. (I think this was based on a diagnosis of Oppositional Defiant Disorder, rather than ADD, which he also had.) We were naive enough to think that this was going to be helpful. We initiated a re-eligibility process last year to have his label changed to Other Health Impaired, but they would not eliminate the ED label, even though he has continued to fail and have increasing social problems.

After a Functional Behavioral Assessment (if you can call it that) which we requested, a new IEP was proposed by the school – same two goals, no new strategies, just some rewording of the same vague language, so we have refused to sign it. The only new support was social skills class that was to start last spring. It never happened. Is the school obligated to provide the services they proposed, even though we did not sign this IEP, his second? If we refuse to sign, are they obligated to take us to due process or mediation? Thank you.

Debbie
Vienna, Virginia

Dear Debbie,

Your question raises a number of issues. First, there is a growing body of judicial precedent indicating that the critical measure in assessing a child's program is not whether they have the right label, but whether they have the right program. Even if the label isn't necessarily accurate, the school will be less vulnerable if they are providing the appropriate program. Similarly, even if they have the right label, they will be vulnerable if they are not providing the right (appropriate) program. Of course, logically, they are most vulnerable if they are neither using the right label nor providing the right program. This may be the case in your situation.

Second, when a child fails to make progress on goals and objectives over the course of the year, the school should respond to this lack of progress by analyzing the reasons for the failure. After all, the initial goals and objectives, set by the school, were supposed to reflect goals that were reasonably attainable in their judgment. While it is not always the case, schools typically should consider whether additional services are needed if a child has not made progress on his/her goals with the existing services.

Your failure to sign the IEP serves to some degree to document your dissatisfaction, particularly if you note your dissatisfaction somewhere else in the IEP. However, other than the initial IEP admitting the child to special education, the withholding of parent signature has no legal consequence in blocking or challenging the school's actions. This is only accomplished if you file a due process. By contrast, although the school could choose to ask for mediation or a hearing at any time, they have no real incentive to do so at the moment, as the status quo is consistent with their position.

Can a parent require an objective assessment of a child’s skills when the school district wants to use teacher assessments?

Dear Mr. Cohen,

At my daughter's staffing in June, it was determined that she was eligible for special education services. She will receive services for reading and spelling in the resource room, language (word finding) from the speech and language pathologist, and consultation from an occupational therapist for sensory integration.

For the reading goals, I asked if the Woodcock Johnson test or similar test could be administered to show progress in reading. (We obtained a very thorough private evaluation and have a very clear baseline.) The school district said that they couldn't do that. To use a standardized test would require completing a domain sheet and a reevaluation. The school simply wants to use "teacher assessments." Because of previous experience with an older child, I'm uncomfortable with "teacher assessments." Also, the teacher assessments give me no idea how my child is performing in relation to her peers and if she is making adequate progress.

Terri E.,
Glen Ellyn, IL

Dear Terri,

You have made a reasonable request for an objective measure of your child's progress in relation to some of her goals. There is absolutely no requirement that the school district complete a domain sheet or the normal components for an evaluation in order to conduct a particular specialized assessment in relation to progress on goals and objectives. It is entirely permissible for the parent and the school to agree to use an objective achievement measure for purposes of measuring progress in relation to specific skills. Further, the completion of a domain sheet, which is intended to specify what evaluation components are needed, can be completed at an IEP meeting. Thus, if the school district was concerned about obtaining agreement and written consent from you prior to using an achievement measure, they could have done so at the IEP meeting.

However, you should be aware that with respect to a number of processing issues, it may be useful to combine objective testing with teacher assessment. Unless the test instrument is very precise with respect to the skill that has been identified to be addressed in the objective, the test may or may not adequately capture the skill that is being directly addressed through the objective.

You should also be aware that although there are specific rules regarding the frequency with which intelligence tests can be administered, those rules may not be applicable with respect to the administration of various achievement or processing tests. The rules vary by test and by situation. However, it is important to insure that the test being used is valid for the intended purpose. Further, a number of the most common tests come in several forms or versions, specifically in order to allow for the administration of multiple versions of the test over a specific period of time.

What rules must the school district follow when they evaluate a child for learning disabilities?

I am cognizant of the "basic requirements" for re-evaluation, but are there any "bright line" standards for determining appropriateness of a re-evaluation?

For example:

  • Does a quick phone call (5 minutes to ask for consent signature without asking parent input on the evaluation) to a parent constitute full parent participation?
  • Does "informed consent" require that the parent be told what tests are going to be conducted specifically or just that there will be "tests?"
  • Should a full battery of tests be performed or is just one enough, if other information is included, like a nurse's statement and general ed teacher statement?
  • Should the evaluation report include significant detail or is it appropriate to just include test scores and very brief outline of current circumstances (grades, delightful student, works hard, blah, blah)?
  • If determinations are made that a student doesn't need specific services (ESY, assistive tech) should the details of that determination (testing conducted, specific records reviewed) be included or is it enough to check the box that says the student doesn't qualify?
  • Should the report be in plain English, or is technobabble adequate?

You get the picture…

Sara
Seattle, WA

Dear Sara,

Your letter raises many important questions with respect to the requirements for evaluation. I will try to deal with them in as much detail as I can. Unfortunately, the desired "bright line" that you refer to is often more blurry than we all would like.

Before any evaluation can be conducted, the school district is obligated to obtain informed written consent from the parents. While informed consent is not well-defined by IDEA, this is a concept that has been a cornerstone of American law for many years. Fundamentally, informed consent requires that the parent have sufficient information to be aware of the reason for testing, the nature of testing, the consequences of testing, and some basis for assurance that the evaluators are qualified to perform the tests. The extent of information that the school should provide will vary based on the circumstance, the extent of testing, and the level of specialization of the testing. For example, I would expect that different information would be provided for a preliminary referral for evaluation for learning disability as opposed to the request for a psychiatric assessment due to the concern that there is a specific psychiatric problem.

Unfortunately, while there is a clear obligation to obtain written consent from the parents, which should be informed, there is often dispute between parents and schools as to what information is necessary in order for consent to be "informed." While it is reasonable and appropriate for a parent to seek clarification or further information about testing, there may be disputes as to the extent of information that the school district is obligated to provide.

You also question whether a full battery of tests is required or one test, with supplementation by anecdote. At the outset, even the meaning of "a full battery of test," is subject to debate and will vary from child to child, situation to situation, and district to district. In any event, the law is very clear that school districts are not allowed to rely on a single test or measurement in making a determination of disability. The scope of testing ought to be determined in relation to a collective decision as to the nature of the suspected disability and the types of assessments that would be responsive to it, including both testing, observation, interview with the parents and the child, observation of the child and review of records.

Parents generally should be aware that the "full test battery" which is often used by school districts may very well actually be of greater utility for the purpose of screening than it is for the purpose of fully and accurately diagnosing the existence of particular disabilities and/or the exact nature of those disabilities.

As a result of the 2006 IDEA regulations, states will be deciding to what extent to use Response to Intervention procedures to address the needs of children suspected of having learning disabilities prior to determining eligibility and, ins some instances, prior to conducting an evaluation. Parents and clinicians will need to check their state's new regulations or interpretations to determine how RTI procedures fit with the normal evaluation process and the extent to which district's will continue to use the traditional "discrepancy formula," as part of their assessment of whether a child has a learning disability.

The law requires that parent input be obtained in relation to an assessment of the child's functioning and needs. A discussion for the purpose of obtaining the parents' consent to an evaluation is not the same as obtaining the parents' input with respect to their assessment of the child's functioning and needs, once an evaluation has been initialed.

The law does not explicitly describe how much information must be shared in an evaluation report. In fact, it does not explicitly delineate a specific responsibility for sharing evaluation reports. School records certainly include scores, although they may not include protocols or the evaluator's personal notes about the test experience. If there is a written report, the parent certainly has the right to obtain a copy of the written report. The parent also has a right to obtain scores. Under special education and general privacy laws, the parent may not be entitled to obtain raw data that is the basis for the scores, but may even be entitled to have that raw data reviewed by a qualified examiner of their choosing if they are worried that the raw data has not been appropriately analyzed. Parents are always entitled to get sufficient information to make initial informed decisions about whether the child should be made eligible for special education and to obtain a complete copy of the child's school records, which includes all reports by evaluators.

With respect to your question as to how much information should be provided by the district to explain decisions that a child does not need certain services, the law is somewhat vague in this regard as well. While a school district is not obligated to provide a full explanation for why it did not consider or provide every conceivable service that might be available for a child, as this would be impractical and burdensome, it is obligated to provide an explanation in relation to any service that has been specifically requested, whether by the parent or by a member of the IEP team. In other words, there may be a wide range of services that are not under consideration for a child because no one has any reason to believe they are necessary. However, if a service has been discussed, the school district ought to provide a sufficient explanation in the IEP to allow someone to review that decision later and have an understanding of the basis for refusal.

Finally, you asked whether the IEP report should be in plain English or can be in technobabble. While there is no explicit rule regarding the acceptability of technobabble, nor with respect to the legibility of the document, a strong argument can be made that if the parent cannot understand what was written, the use of either technobabble or illegible documents could constitute the denial of a free appropriate public education. If the language or writing of the report or IEP document impairs the ability of the professionals or the parent involved to understand or read the document, it is hard to imagine how the document could satisfy the procedural or substantive requirements of IDEA.

How does a parent persuade the school system to use a particular reading program that they believe will help their child?

Dear Mr. Cohen,

I have an LD child who was first classified in March of 2004 when he was in kindergarten. I had first brought up my concerns in November of kindergarten and was asked to wait for my son to mature a little more. Needless to say, by January I pushed the issue and we went to CSE at the end of March.

Now my son is in first grade and receives Resource Room every day for forty minutes and Speech and Language two days on a six day cycle. I have spoken with all of his teachers and they say he is doing great, but agree that he is low. I have expressed my concerns that he still doesn't have letter/sound recognition and that he really needs, in addition, to be in a one-on-one reading, (phonetically based) program.

I have asked for another meeting to add some goals to his IEP. What are my legal rights once in that meeting? I have been told that I am not permitted to ask for a specific reading program, but instead a research-based reading program. What are your thoughts and advice for me?

Jennifer

Dear Jennifer,

Your question raises the issue of whether and under what circumstances you may request specific methodologies, services or interventions, in response to your perception that your child is not making appropriate progress. At the outset, you have the right to request anything that you wish to request. There is no limitation to what you may ask for in an IEP meeting. On the other hand, there is no obligation on the part of the school district to agree to what you are requesting just because you request it. As a result, it is wise to be careful about requesting things only if they are realistic and you can substantiate the basis for them. Making outlandish requests to a school district or requests that are not legally supportable will serve to alienate the staff, without getting your child the services that you are seeking.

In order to avoid this problem, I suggest that you carefully document the ways that your child is continuing to experience difficulty, despite the positive feedback from the school staff. This documentation can include accumulating work samples, videotaping your child having difficulty with various tasks that he/she is working on, accumulating test data from the tests that the school staff are administering, including classroom tests and achievement tests, and obtaining data from school psychologists and independent evaluators indicating the ways that your child is underachieving relative to both his/her intellectual potential and in comparison to peers.

While your child may be "low," it is important for you to establish that your child is functioning below where he/she ought to be functioning given the intellectual potential. This requires some comparison of actual performance to how the child has been assessed intellectually by the school and/or outside clinicians. It is also important to provide information that documents the ways that these specific academic tasks, whether reading or otherwise, takes your child excessive amounts of time, causes excessive anxiety, or generates other symptoms or behaviors which suggest that your child is having unusual difficulty in comparison to his/her peers.

With reference to requests for specific reading programs, the school district is partially correct, but not entirely so. The IDEA specifically allows for discussion of specific methodologies if there is evidence that the specific methodology is necessary for the child to make academic progress in the area of concern. To the extent you can show that a specific reading program, as opposed to research-based reading programs in general, are necessary for your child to make progress in the specific area you have identified, the specific reading program is an appropriate topic for the IEP meeting. In the absence of evidence that the specific reading program is necessary, you are certainly justified in seeking to discuss research-based reading that addresses the targeted skill, such as decoding. In any event, it is helpful to have outside clinical support for research-based programs to address the particular problem, or, even better, to have clinical support for the specific program that you are seeking.

Should a parent bring an advocate with them to an initial IEP meeting?

Dear Mr. Cohen,

My child has been diagnosed with ADHD. He is a bright kid but just doesn't focus when in class and he is very disorganized. He is now in seventh grade and he still is struggling in school; specifically he is not completing all his assignments (a problem for the last couple of years) and is in danger of receiving F's in three classes.

The last couple of years his teachers have not been very cooperative with us. We have requested an IEP for our son and have been invited to attend an initial IEP team meeting. Evidently we are entitled to bring an individual knowledgeable in this area to the meeting.

My question is should we bring such an individual to the initial meeting and if yes can you recommend such a person. Thank you for your help.

Daniel

Dear Daniel,

You are seeking information on whether it is helpful to bring an individual knowledgeable about the content of IEPs for children with ADHD to an initial IEP meeting. There are a number of considerations with respect to this decision. First, it is important at an initial IEP meeting to establish positive rapport with the school staff and to communicate to them that you are interested in working with them in a collaborative manner. You wish to give them the message that you have confidence in them and hope to have a positive working relationship. In some instances, bringing outside individuals with you to the initial meeting may give the school staff a message that you don't trust their expertise and/or may threaten them because your outside advisers may appear to know more than the school staff do about the specific things that you are asking for. Thus, care should be given in introducing outside professionals into initial IEP meetings in order to avoid offending the school staff.

At a minimum, however, it is very important that you come into an IEP meeting, whether an initial meeting or later, with as much information as possible as to the types of accommodations and services that your child needs in order that you can be sure that the school staff is doing what they should be doing in developing an appropriate program for your student. If you decide it is premature to bring an outside professional to the meeting, it is nonetheless helpful to have consulted with outside professionals to have a clear idea of the types of services and accommodations that should be included in the IEP so that you can make informed requests of the school district and/or make sure that the proposals that they are offering are sufficient.

If you have struggled with the school to get the initial meeting and have the impression that the school staff is not sophisticated about how to respond to the needs of a child with ADHD, it may be worthwhile to bring outside clinicians to an IEP meeting even though it may offend some of the school staff. In preparing for an IEP meeting at which you intend to be accompanied by an outside clinician, it is useful to review how you will approach the school staff and encourage the outside professionals to do so in a manner that is collaborative rather than confrontational. Different clinicians have different personalities and orientations to such meetings. It is important to assess this in advance and to come into the meeting with as positive an orientation to working with the school staff as possible.

In addition to the participation of outside clinicians, or in lieu of such participation, it is generally a good idea to bring at least one person along as an observer and friendly presence. It is never a good idea for a parent to go to a meeting alone. If two parents are not available, whether because it is a one parent household or the second parent cannot attend, it is best to arrange for a close friend, extended family member, or some other significant person to attend with the parent. This person should be given the role of note taker for the parent. It is important to review with that person the role in order that they not inadvertently step on toes when the parent was seeking a more restrained approach to the school staff.

Can a school district stop special education services because a student’s IQ is of average range?

Dear Mr. Cohen,

Can a school district take a child off an IEP because his IQ is of average range? Per the school district he has been failing because he does not complete his homework. He has had the coding of LD for the most of his school life, but now with his medical coding of ADHD the district feels he does not have LD.

The district is now putting him on a 504, without his FBA. This student has failed for the past five years. What would you recommend?

Thank you,

Kim

Dear Kim:

School districts may only terminate special education services after a full evaluation and determination that the child no longer meets the criteria for special education. Their criteria require that the child have a disability that adversely affects school performance and which requires special education intervention.

Many children with disabilities have average or above average IQ's. The presence of an average or above average IQ by itself is not a disqualifying characteristic for eligibility for special education. In fact, the law specifically provides that a child is not excluded from special education just because he or she is receiving passing grades.

It appears that the school district is unaware that a child can be eligible for special education under the category Other Health Impaired if the child has been determined to have attention deficit hyperactivity disorder which is adversely affecting the child's performance. ADHD should not be a basis for eligibility due to a learning disability, but is a basis for eligibility under the OHI category.

After a parent requests a meeting for an IEP, is there a deadline for the district to hold the meeting?

Dear Mr. Cohen,

Could you please tell me what the Illinois time limit is for response to an IEP meeting request? I understand that during the school year, it is 30 school days. But what about during the summer?

Our bipolar daughter has a classification of LD on her IEP. In order to use our Individual Care Grant for an RTC, her classification must be ED. The region has told my daughter's school that we cannot have an IEP meeting until early fall. Our daughter is at Camp Kodiak until August 21st. We wanted her to start the school year at her RTC.

Barbara

Dear Barbara,

There is no specific timeline within which any school is required to have an IEP meetings after a request for and IEP meeting by a parent. However, various administrative interpretations have indicated that an IEP meeting must be held with in a "reasonable" period of time. Typically, 30 school days would be excessively long for convening an IEP meeting after a request by a parent. In most areas of education law, a "reasonable" time is typically 10-15 school days.