Legal Briefs from Matt Cohen

Is a child who gets good grades entitled to be tested for dyslexia?

Dear Holly,

Your question asks whether your child is entitled to be tested for dyslexia, even though she is getting good grades. You indicate that she struggles with fine motor skills and that the parents have dyslexia. You always have the right to request an evaluation to determine if your child is eligible for special education. The school may either agree to conduct the evaluation or provide you written notice explaining why they are refusing the evaluation and that you have the right to request a hearing to challenge that refusal.

You also have the right to obtain a private evaluation at your own expense to determine if your child has a learning disability. If the private evaluation does result in your child being diagnosed, it should be shared with the school. They are required to consider the outside evaluation, although it does NOT automatically require them to either evaluate your daughter or to agree that she has a learning disability.

In addition, under the IDEA 2004 amendments, schools can use a process in regular education, called Response to Intervention, to provide more intensive support to students suspected of having a learning disability, to determine if they are able to make progress when given the special instruction. If they do progress, the schools will generally conclude that the student does not require special education. If, given the extra help, they do not make progress, the school is more likely to agree to conduct an evaluation.

The IDEA 2004 amendments also placed more emphasis on the child’s functional performance, so passing grades should not be the only determinant of whether your child warrants an evaluation or has a learning disability that qualifies for special education. In addition, you may also want to have your child evaluated by an occupational therapist to determine if she has fine motor problems that require intervention. This may be related to a learning disability, such as a visual processing or visual/motor disorder, but may be due to some other problem.

(April 2008)

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

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

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

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

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

(March 2008)

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

Dear Lynette,

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

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

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

(November 2007)

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

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

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

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

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

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

(July 2007)

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

Dear Amy:

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

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

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

(July 2007)

How do you get an ADHD child evaluated if the school says that they don’t have to test the child because the child doesn’t have a learning disability?

You report academic problems for your child that are apparently based on your child’s ADHD. Your school district has denied services on the grounds that your child doesn’t have a learning disability. It would appear that the school is evaluating your child based on LD criteria, without considering whether your child meets the eligibility criteria for Other Health Impaired, which specifically references Attention Deficit Hyperactivity Disorder, or if he doesn’t qualify for special education, whether he qualifies for a Section 504 plan.

Notably, the IDEA Amendments of 2004, which govern the evaluation process for special education, expanded the evaluation rules to require that schools assess not only academic performance, but a child’s developmental and functional performance at school as well. For many children with ADHD, this has significance, as they may be making passing grades, but still having a variety of problems with organization, behavior, study skills or other issues that interfere with their functioning at school. These developmental and functional issues must be considered in determining eligibility, as well as whether the child is making passing grades or making progress as measured on an achievement test.

In fact, the federal regulations provide that a child is entitled to a free appropriate public education (FAPE) even if the child is receiving passing grades, progressing from year to year, or has not been retained from progressing to the next grade level.

(May 2007)

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

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

(April 2007)

May I have a sample letter to request that my child be evaluated to determine if he or she needs special education?

Dear Elizabeth:

You have asked for a sample letter requesting testing. It does not need to be complicated. Note that the title of the person in charge of special education may vary from state to state or district to district. In some instances, the state may even have regulations which define to whom the request should be sent. If in doubt, send copies to the Director of Special Education, the school principal and the School Superintendent.

Note also that children who reside in the district but are homeschooled or attend private school in the district are also eligible to be evaluated for special education. This letter can also be used for children in those situations.

Try some variation on this:

Date:

Dear Director of Special Education:
My child, _______ , is a student at _______ School and/or lives at _______ in your school district. I am requesting that my child be evaluated in order to determine if he/she needs special education. I am requesting this evaluation because I believe my child is having problems with: _______ which may be due to a disability.

If you are in agreement that my child should be evaluated, please contact me as soon as possible so that we can discuss the test process, what testing should be done, and so I can provide written informed consent for the testing. If you do not agree that my child should be tested, please advise me of this immediately in writing, and provide me with any information I need to challenge this decision if I choose to do so.

Thank you for your assistance in advance. I look forward to hearing from you as soon as possible.

Sincerely,
Concerned Parent

Send the letter by By Certified Mail/Return Receipt Requested

(February 2007)

Is the school required to test a child for dyslexia?

Dear Mary:

If a child is having academic problems due to a suspected learning disability, the school has a legal obligation to test them under the "CHILD FIND" requirement. Dyslexia is explicitly listed as one of the sub-categories of specific learning disability in the federal law. If you think your child should be tested, you should make a formal request for evaluation in writing to the superintendent and director of special education. You should send the request certified mail, return receipt requested. The school must either agree to do the testing or inform you that they are refusing to test, the reason for the refusal, and inform you that you have the right to request a hearing to force them to test. You also have the right to obtain an independent evaluation, and the school is required to consider the results of all such independent evaluations.

(October 2006)

What are the rights of children who are gifted and also have learning disabilities?

Dear Tracey,
Your question addresses the rights of your child who is gifted but has significant learning disabilities. Your school district has taken the position that because your child is overall receiving passing grades and achieving at a level comparable to other children, your child is not entitled to special education services. This question occurs frequently and is a difficult one.

Many school districts choose to set their eligibility criteria based on the child's not only displaying a discrepancy on performance relative to their intellectual potential, but also requiring that the child display an impairment in relation to the average population. Under the old LD criteria, the U.S. Department of Education has previously stated that this position is inappropriate and that a child should be considered for eligibility based on significant discrepancy in relation to their own potential not in comparison to other children. However, you should also be aware that the discrepancy formula has been discredited.

Schools will now be looking at a broader range of criteria for determining if a child is eligible for LD services. In particular, school districts will be looking at a whether a child's problems were due to inadequate instruction as opposed to a processing deficit. This procedure will involve the provision of targeted research based intervention to see if they made progress. In the absence of such intervention, the school could not use this as a basis for denying your child eligibility. On the other hand, IDEA 2004 also expanded the focus on developmental and functional difficulties in addition to academic difficulties.

It will be important for you to high-light the various ways that your child is experiencing difficulty as evidence of the impact of the diagnosed learning disabilities on their academic functioning. You and your clinician should gather information about the child's difficulties with reading, writing, completion of work, timeliness and the like in order to substantiate that the problems they are having have had a functional impact on them, even if they are still able to get passing grades. Under the new IDEA 2004, there may actually be a greater basis for eligibility than there was under the old discrepancy formula.

(October 2006)

What do you do when the school denies services and an independent evaluation?

Dear Karen,
Your question raises a variety of concerns with respect to your child being inappropriately denied services several years ago, denied appropriate services in the meantime, and denied an independent evaluation which you requested. Your school apparently also took the position that dyslexia is not a learning disability covered by the law.

It appears that the school district may have violated your rights in a number of ways. Certainly, dyslexia is one of the specific conditions identified as a subset of the disability category of learning disability within the federal law. Thus, for the school district to assert that dyslexia is not covered would be improper.

Although it is difficult for children to be diagnosed with learning disabilities when they are younger, this is not impossible and occurs with some frequency. If your child did not receive appropriate services for the past several years, this could well have contributed to a drop in your child's IQ scores. When a child is denied an appropriate education, the child may be entitled to receive compensatory educational services. However, typically a parent has to pursue a request for a due process hearing before a school will consider or be ordered to provide such compensatory services. In addition, when a parent requests an independent educational evaluation at school district expense in writing, the school district is obligated to either provide the independent evaluation at school district expense or request a due process hearing to prove that the school district evaluation was appropriate.

From your question, it seems that the school district did not follow this procedure. Under the circumstances, you have a variety of complaints which would provide the basis for further action against the school district. You may wish to consider a consultation with a knowledgeable advocacy group or special education attorney to establish an appropriate course of action.

(October 2006)

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

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.

(February 2006)

Do students who attend religious schools have rights to special education services?

Dear Tracy,

Your question addresses the entitlement to services for a child who attends a private Christian academy. As a general matter, a child who attends a private religious school is not entitled to any of the protections of the non-discrimination laws, such as the Americans with Disabilities Education Act, if the school district is religiously controlled, as it appears to be in your situation.

The only exception to this would be if the school receives either specific funding from the school district under the Individuals with Disabilities Education Act, or some other form of direct funding to the school from the federal government in order to trigger the protections of Section 504 of the Rehabilitation Act of 1973, which also prohibits discrimination on the basis of disability. In the absence of a federal funding stream, neither the Individuals with Disabilities Education Act Section 504, nor the Americans with Disabilities Education Act apply to the private religious school.

Although a child may be in a private religious school, the child still has a right to be evaluated by the public school at no expense, in order to determine whether the child qualifies for special education. If, as a result of this evaluation, the public school determines that the child does qualify for special education, the parent may either opt to enroll the child in public school in order to obtain the special education services, or may request that the public school provide special education services while the child attends the private school.

However, if the parent elects to request services through the private school setting, rather than enrolling the child in the public school, the child is not legally entitled to receive services from the public school. Rather, the public school is entitled to determine how to use its federal special education dollars in relation to that child, or whether it will provide services to the child at all. Under the IDEA, the school district's obligation to children voluntarily enrolled in private schools is only to provide a certain amount of money for such services in general, rather than to provide services to individual children pursuant to their individual education plans.

(February 2006)

What are your rights when the school makes some modifications for your child, but will not say that the child has a disability?

Dear Susan,

Your letter raises a number of issues and concerns. First, parents have the right to request evaluation by a school district if they suspect their child has a disability, or have already confirmed that through outside evaluation. The school district has the obligation to either conduct the evaluation and make a determination of whether the child has a disability, or to advise the parents of their right to request a due process hearing to challenge the refusal of evaluation or the refusal of eligibility. Once the school year has conducted an evaluation, if they determine that the child does not meet criteria for eligibility, the parent has the right to request a due process hearing to challenge the denial of eligibility.

In your case, it appears that the school district has made a number of accommodations and provided some services without recognizing your child's eligibility under either IDEA or Section 504. Despite the decision to refuse eligibility, they now recommend retention. The decision to retain would appear to confirm your perception that the disabilities are adversely affecting your child's educational performance, which would support the decision that eligibility is appropriate.

There is a wide body of research indicating that retention is generally not only ineffective with respect to the educational needs of children, but is oftentimes detrimental to the child in relation to his or her academic and social growth and self esteem. Unfortunately, in the absence of agreement between you and the school district, you may be forced to take a more aggressive position. You may wish to move up the ladder within the school administration in an effort to resolve this matter prior to requesting a due process hearing. If that is not successful, you should consider requesting both mediation and due process in an effort to work out a solution with the school district that does not actually require an adversarial process.

As a qualifier, you should be aware that clinicians in the private sector often use diagnostic criteria that are not the same as those used by the educational system. Thus, it is possible that a child could legitimately meet clinical criteria for a variety of disabilities, while the school district could nevertheless legitimately conclude that the child did not meet educational criteria. However, where the school district is so concerned about the child's progress that they propose to retain them, it would seem difficult for the school district to make an argument of this sort. You should also consider consulting with an attorney or an advocate who is knowledgeable about special education law to assess your case and to obtain assistance in moving forward with the school district.

(February 2006)

Can slow learners receive special education services?

Dear Julie,

Your question relates to the status of a so-called "slow learner" in relation to eligibility for services, as well as whether the student can receive special education services, although not technically eligible, if you consent. First, you should be aware that it is often the case that determinations are made with respect to whether a child qualifies as having a learning disability based on a comparison of full-scale IQ scores to the global achievement test scores. Often, when a qualified evaluator looks at the verbal and performance scores of the IQ test, the sub-test scores, and specific or discreet areas of the achievement tests, it turns out that there are significant variations in terms of the child's abilities, including both strengths that place them above the full-scale IQ level, as well as weaknesses that place them at a statistically significant level below what the IQ scores indicate should be their expected performance. In order to make these determinations, it is important to have a qualified psychologist review the testing, and perhaps have additional testing conducted, if needed.

However, parents can make a preliminary assessment that there may be indicators of a possible learning disability simply by looking at the variability of sub-test scores to determine if there is a range of performance across skill areas suggesting that there are strengths and weaknesses that are not reflected in the over-all scores. In addition, further testing may utilize specific processing tests, which identify discreet areas of neurological difficulty with respect to learning that may not show up on the typical evaluation conducted by a school district. For example, there are specialized tests to assess decoding, tracking, word retrieval, memory, comprehension, and a variety of other processing tasks, which may not be completely covered by the typical school test battery.

In addition, you should be aware that the child may qualify based on other disabilities, depending on what other issues are present. As my answers to several of the prior questions indicate, there is also frequently a fudge factor built into the LD criteria, which allows the staff and parent to make a determination that the child qualifies based on functional difficulty, even if they don't meet the technical criteria. As indicated above, the new IDEA going into effect in July not only changes the criteria for learning disability, but also expands the areas of impairment to include functional and developmental impairment as well as academic impairment. These will provide additional basis for potential services.

Finally, you asked whether a child could receive special education services even though the child is not a special education student, if you consent. This is somewhat complicated, but the federal law does allow schools to provide services which provide benefit to non-special ed students, as long as the dollars are focused on special education students. If the parent consents to the provision of support services by special ed staff, there should be no legal reason why a child could not qualify for such services. Historically, this has been known as the "incidental benefit rule," which was designed to allow a situation such as a special education teacher coming into a regular education classroom teaching a small group of students, including both regular and special ed students.

(February 2006)

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

Dear Lisa:

Your question raises a painful, but important, problem with respect to children who fall through the cracks, because they have a level of impairment which affects their functioning at school, but may not meet the eligibility criteria for the school system. First, without knowing the specific regulations for LD of your state or your school district, you should be aware that most eligibility criteria include some mechanism for exercising subjective judgment to conclude that a child's impairment, even if not sufficiently discrepant from a statistical standpoint, nonetheless has a sufficient impact to warrant the provision of LD services. You should check your state's criteria for learning disabilities and request a copy of your school district's policy, in order to determine what the subjective factors are in making the eligibility determination. If, as I suspect is the case, there is some "fudge" factor built in to the eligibility process, you may make the argument that the level of need warrants services even in the absence of technical qualification.

In addition, you should be aware that under the new IDEA Reauthorization, effective July of 2005, schools are no longer required to use the discrepancy formula for purposes of determining eligibility for special education. Instead, they may provide research-based reading and other learning intervention in order to assess how the child responds to systematic reading instruction. If the child has difficulty despite the provision of research-based instruction, the child may qualify for special education services even in the absence of satisfying a pre-existing discrepancy requirement.

In addition, you should be aware that the new IDEA requires schools to address not only the child's academic difficulties as measured by achievement tests, but also to address the child's functional difficulties. It is apparent that many children with learning disabilities have functional problems with reading, even if they don't meet the technical criteria for learning disabilities. While I believe that the inclusion of functional impairment is undefined in the law, the intention of its inclusion was to address not only how the child responded with respect to academic tasks, but how their disability affected their day-to-day functioning at school. If a child has difficulty with reading, whether decoding, fluency, comprehension, or in other ways, and that functionally limits his or her ability to participate successfully, or causes them difficulties in terms of fatigue or self-esteem, that may well be a basis for services even if the child doesn't technically meet criteria as having a learning disability.

(February 2006)

What can a parent do when a school representative says dyslexia/dysgraphia is not a learning disability?

Dear Julie:

First, dyslexia is explicitly referred to in the federal definition of specific learning disability, so the evaluator is incorrect. Second, the definition also refers to processing disorders which impact written expression. That includes dysgraphia. Third, the definition is not based on a specific clinical label being used or excluded. Rather, it is based on the presence of a processing disorder which adversely affects key areas involved with language. Dysgraphia makes more sense within LD, than OHI, as OHI requires the presence of a health impairment which results in limited strength, vitality or alertness. Dysgraphia doesn't fit these criteria, but does fit LD.

With respect to college accommodations, those accommodations are decided by the college. The presence of a specific accommodation (and documentation of the disability and accommodation in high school) is a necessary, but not sufficient basis for getting the accommodation. The college still has the right to make its own independent determination of whether the accommodation is necessary and reasonable. As to whether there is an advantage to a dual label, I can make arguments either way, but in general, the presence of both labels is less important than 1) the use of the appropriate label, 2) documentation of the clinical and educational bases for the label (including both disabilities), and 3) clear documentation that the accommodations are necessary to address the disability.

(February 2006)

For more information on this topic, please visit the Evaluation / LD Testing section in LD InDepth.