Legal Briefs from Matt Cohen
The following are past questions and answers from Matt Cohen on this topic.
Our son will be entering a new school system, and we want to make sure he recieves special education services immediately. Is there a way to arrange this before he starts school?
Our son, who is now about 13 years old, is not progressing in school. We think he has a learning disability but have been unable to obtain any educational testing or assessment data from psychologists. We currently live with our son and other children in Pakistan and have found that there is not a system for working with children with LD here. However, our son is a U.S. citizen, so we are planning to have him move back to the states with family.
We are wondering how we get the initial referral to begin the special education process at his new school if he does not yet live in the U.S. Is this possible?
When a child is entering a new school system, the parents or guardian may immediately request an evaluation for special education. However, the public school is not automatically required to conduct an evaluation. The more information that can be provided to the school to support the need for the evaluation, the more likely they are to agree to the evaluation. This is especially important in situations such as yours, as schools are not as likely to conduct an evaluation when there is no prior history of difficulty in an American public school.
One important step to improve the likelihood that the school will agree to an evaluation is to obtain a comprehensive independent evaluation to document your child's problems. The school is required to consider this evaluation but is not required to accept its findings. As a result of the new requirement that schools consider whether inadequate instruction may be the cause of the learning problem, schools are now far more likely to defer evaluation until after the student has received a period of intensive specialized intervention in regular education (Response to Intervention — RTI). This makes it harder to secure immediate evaluation in situations such as yours and makes any evidence of prior problems and unsuccessful efforts to address these problems especially important.
A doctor believes that my child has a learning disability, but his school will not evaluate his case. What should I do?
My son was classified in pre-k as preschool handicapped. He was declassified in kindergarten, but the school gave him a 504 plan. He gets speech, OT, and PT in school. He is now in first grade. His writing is poor, and it takes him two days to copy two sentences. In September I asked the school to re-evaluate him to see if he now would qualify for an IEP through the child study team.
In January, the case manager called me for a meeting, where I was asked to take my son for a pediatric neuro evaluation. I did this within 2 days of this meeting, by just pure luck of getting him in a cancellation spot. The neurodevelopmental pediatrician evaluated my son, looked at all evaluation summaries from pre-k, and said that the school should now re-evaluate him again because he is positive at this time his scores will qualify him to be classified. He said my son is dysgraphic, and that was all so far. I have not received his report, yet; but he told me before I left to write a letter requesting the child study team to re-evaluate my son.
When I told my son's case worker that I needed to deliver a letter to her and what it was for, she told me this doctor does not know the codes and is wrong. I have a hard time believing this. I feel as though I need to listen to the doctor who evaluated my son over her, and feel I should submit this letter even if it upsets the school. Is this the right thing to do?
First, many people do get confused, including doctors, because the clinical criteria for disabilities and the educational criteria for disabilities are often overlapping but not the same. Thus, a clinical diagnosis does not automatically mean that there is sufficient basis for an educational label of disability. However, the doctor's evaluation cannot be ignored by the school. It must be considered, and the school must provide you the reasons that they feel an evaluation is not needed. Further, you have a right to request an evaluation at any time.
The doctor's recommendation provides further support for your request but is not a necessity for making the request. It does give you more support for the request. If the school is not willing to honor your written request, they are supposed to 1) give you a written explanation that they are denying the request, 2) explain the reason they are denying the request, and 3) explain your right to request a hearing to challenge their refusal to conduct the evaluation. If you give them a written request and they do not do this, they are in violation of the law.
What can I do if I've been denied SSI benefits for my daughter's physical disability? Should I get her tested for LD?
I have a 4 year old with hydrocephalus and a ventriculoperitoneal shunt. I've been submitting applications for Supplemental Security Income (SSI) but have been denied all three times.
I recently started to notice that my daughter writes words, numbers, and her name backwards. No matter how many times you show her correctly, she keeps doing it backwards. I have called hospitals to see if there are tests for her but all I've been getting is a call back three to six months later. I really need some advice or even a lead on where to go. Thank you.
You need to consult with a knowledgeable SSI disability appeals lawyer concerning the possibility of filing an appeal of the denial of benefits for your child.
There are several organizations that represent lawyers that handle SSI cases. You can do a Google search or contact the American Bar Association Mental and Physical Disability Law/Bazelon Center Web site for a list of lawyers that do disability cases.
With regard to child having trouble with reversing letters and numbers, this is often reflective of the presence of a learning disability. You may want to consult with a clinical psychologist or neuropsychologist for evaluation of your child's reading and writing to determine if there is a problem with the way her brain processes information.
Many hospitals, especially children's hospitals and hospitals with medical school affiliations, have clinics that conduct psycho-educational evaluations. However, you should be forewarned that many hospital clinics may use medical criteria that are different than the eligibility criteria used by the schools. Therefore, it is important to make sure that the evaluator is familiar with the special education criteria for LD, as well as the clinical criteria.
The school said it will take 30 weeks to start providing special education services. Should they help pay for tutoring in the interim?
My child has severe dyslexia, as determined by a private evaluator. We are trying to get his school to provide services; however, this could take 30 weeks (losing an entire school year). I have been looking everywhere in my county for tutors, etc. to help him in the interim as long as I can afford it, but am finding nothing. Do you have any recommendations on where to turn? I live in Palm Beach County, Florida.
Although in reality, getting a child determined eligible for special education can sometimes take a long time — even 30 weeks — but by law, this should not occur. You should check your state's special education regulations for the specific timeframes from date of referral to completion of consent to completion of the evaluation.
In any event, if you decide you need to secure tutoring services in the interim, you may consider providing the school with a "unilateral placement" letter, notifying them that you are obtaining the private services due to their failure to provide appropriate (or any) special education services and that you want them to pay for the private services. Giving this letter does not obligate them to pay, but may give you a basis for pursuing reimbursement from them.
As to tutoring services in Florida, I suggest you contact the Learning Disability Assn. of Florida, as well as the federally funded Parent Training Center in your area for ideas for sources of tutoring. You can find the closest parent training center to you at www.taalliance.org.
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?
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.
What recourse do parents have if a school does not conduct a three-year evaluation on time?
What if a school system does not meet the requirements for re-evaluation? I understand that a re-evaluation must be done within three years of the last evaluation. What recourse do we, as parents, have if that deadline is not met?
There is no explicit remedy provided in the IDEA for failure to complete a three-year evaluation in a timely way. You have the option of filing an administrative complaint with the state Department of Education or requesting a due process hearing.
You might also request an independent evaluation at public expense on the grounds that the absence of an evaluation was equivalent to an inadequate evaluation. Doing so might well trigger the district to quickly decide to conduct an evaluation after all.
Can a student who was homeschooled and is now in college get an initial evaluation at the public school district's expense?
As a certified LD teacher, I recognized signs of SLD in our 18-year-old from a young age, but since we were homeschooling the public school would not test her. I just taught her coping strategies and adapted as needed.
She is now in college, has completed 33 college semester hours, and has a 3.5 GPA. However, she is currently taking her first college math course. She got a D on her first test and is certain that it is because she ran out of time. She needs to be able to ascertain she's not reversed any digits and she works more slowly than most people for that reason. The college can't make accommodations without documentation but our insurance doesn't cover that type of testing.
If your daughter was homeschooled, never enrolled in public school and now is in college, neither the public school nor college has a current duty to conduct an evaluation to determine if there is a learning disability. Public schools do have an obligation under Child Find to identify and evaluate children between the ages of three and 21 that are suspected of having disabilities, if they reside in the district and attend public school or attend a non-public or home school within the district, but that obligation generally expires when the student graduates or is no longer eligible for special education.
If your insurance won't provide coverage, your best options would be to try to find a university or public hospital with a diagnostic center that would test for free or at low cost. In addition, the Masons offer LD clinics in various parts of the country that are available at reduced or no cost. You might be able to find a clinic sponsored by them or a similar group that would test without charge.
How long does a school have to respond to a parental request for testing?
Under the new IDEA laws, how long does a school system have to respond and/or test a child if a parent requests testing? Is the school required to test?
The time period within which a school must respond to a parental request for testing is determined by state law. Schools are not obligated to test a child just because a parent requests testing. However, whenever a parent submits a request for testing, the school district is obligated to inform the parent of whether the school will do the testing or is refusing to do the testing. If the school is agreeing to the testing, it must explain to the parents what testing is proposed and obtain the parents' written informed consent to the testing.
If the school refuses to do the testing, it must inform the parents of the decision to refuse to test, the reason for the refusal, and that the parents have the right to request a due process hearing to challenge the refusal to test. The IDEA requires that schools complete the evaluation within 60 days of receiving parental consent for evaluation, unless state law specifies some other time frame. You should check your state's special education law for the timeline for testing from the date of consent and whether the state law provides a deadline for responding to the parents' request for testing.
My son has been struggling for three years and was held back but does not qualify for services. How can I fight this?
My son's school has seen him struggling all year long. He failed the Florida state standardized exam. As a result, he is now attending summer school. The school decided to evaluate him at the very end of the year, so there's nothing that can be done.
Further, I was advised by the school psychologist this week that although my son exhibits ADHD and a learning disability, he scored below average on some tests and a little above average on others, giving the sense that he's average. Therefore, no help will be provided by the school system next year.
Is there anything I can do to fight this? My son has struggled with school since kindergarten and is now in 3rd grade. He repeated first and may have to repeat third. Thank you.
Under the IDEA, school districts are responsible for "Child Find," which means that they must timely identify all children suspected of having disabilities that reside in their school district, determine if evaluation is needed, conduct needed evaluations with parental consent, and, if the child is determined eligible, assure that the child has an IEP within 30 days after the eligibility decision.
If your child was having problems for a prolonged period of time, it may be that the school violated the Child Find requirements by failing to evaluate your child in a timely way. In addition, it appears that the school may be using overly restrictive standards for assessing whether your child has a disability and/or whether the disability impacted his educational functioning (including non-academic performance).
The schools should not rely on any single test instrument in making its decision and must consider the child's functional performance, as well as the child's academic and test performance.
Can a school have teachers complete ADHD screening forms without parental consent?
Can a school have teachers complete ADHD screening forms when a parent has not requested this? These forms were mailed to me by our area education agency and we had no prior notice that this would be happening.
I know that my daughter does not have ADHD. I do believe she has a learning disability and we are in the process of getting that diagnosed privately outside of the school. Can I have these removed from her file?
A school should not conduct an individualized evaluation of a child for purposes of diagnosing or identifying a disability without the written informed consent of the parent.
ADHD rating scales are assessment tools used for the purpose of determining whether a child has ADHD. As such, they suggest the school is conducting an evaluation of that student, which must be done with the consent of the parent. Schools are allowed to conduct school-wide evaluations of all students without consent, but are not supposed to conduct individual evaluations to assess disability without first informing the parents of the desire to evaluate, obtaining the parents' input about whether an evaluation should be done and the components of such an evaluation, and obtaining their written consent for the evaluation.
If an evaluation was done without consent, or if a student's file has any records that the parents object to, there are procedures under the federal Family Educational Rights and Privacy Act (FERPA) and most states' school records laws, for reviewing and objecting to specific records or information in the file. If the school does not agree to the parents' request, there is a procedure for requesting an administrative hearing to challenge the presence of the objectionable records.
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.
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.
How can I get the independent evaluator who tested my son to remain involved in the IEP process if the school does not want her involved?
Hello Mr. Cohen,
I am the parent of a child diagnosed with PDD-NOS and ADHD. He is in second grade with a history of behavioral issues. We just completed an IEE in which a comprehensive FBA was completed by an excellent professional.
I wanted the professional to continue working with the IEP team to ensure appropriate IEP development, implementation, and documentation of behavioral issues as well as training for the staff. The special education director indicated that her role was strictly to do the FBA as part of the IEE and that her role ends there.
For two years, this school has struggled with providing FAPE for my son. I want her to continue her work through the IEP. The school disagrees...now what?
Thank you, Catherine
From your question, I presume that the school district paid for the independent evaluation. Unfortunately, an independent evaluation at district expense does not typically involve an ongoing commitment from the evaluator and there is nothing in the IDEA provision regarding independent evaluations (either at district expense or your expense) that requires the ongoing involvement of the evaluator. However, there is nothing legally to prevent you from asking for the evaluator to remain involved or to prevent the school from agreeing to it, or even having the district pay for it.
If the school is not willing to agree to pay for the outside expert's continued involvement, you have several options. One is to see if the evaluator is willing to be hired directly by you to provide some type of continuing consultation, though his/her ability to work within the school would be constrained by the school's willingness to cooperate.
Another option is to seek a due process hearing over the failure of the school to provide a free and appropriate education to your child generally and/or to adequately consider and implement the findings and recommendations of the evaluator.
Hopefully, if you requested a hearing, the school might conclude that it was made more sense to pay for the evaluator to remain involved than to have an expensive fight over whether they should be involved. However, you should consult a knowledgeable attorney to fully assess the situation.
How does a parent obtain an evaluation that is more detailed than the school is willing to provide?
We, along with our daughter’s teacher, requested a full education evaluation due to the fact that she is having difficulties in school. We have a meeting and I just received copies of her evaluations. The school failed to separate scores into PIQ vs. VIQ, providing only a full-scale IQ.
I noticed, reading the fine lines, that there was some significant scattering. The school has indicated that her scores are in the “superior” range (full scale IQ is 129), and have insinuated that her difficulties are due to her home life. On the WIAT, she scored 160 in written expression, and 110 in math. I see that as a big difference!
What can I do to ensure she is properly tested. I would like her specifically tested by a neuropsychologist for NVLD, of which she meets all diagnostic criteria. How can I convince the school to do this, as I cannot afford to have the evaluation done privately?
If the school is not willing to conduct a specialized evaluation based on the information that has already been provided to them, you have a number of options — none of them ideal. Your situation is also more difficult because you don’t have the resources to get an outside evaluation to prove that the school is wrong. However, you do have some options.
First, you can try to educate them about NVLD yourself by providing them with literature from experts in the field about the disorder. Second, you could file an administrative complaint with the State Department of Education or the U.S. Department of Education, Office for Civil Rights, complaining that the school is discriminating against your child by using improper criteria for evaluating the test data, using evaluators that may not be knowledgeable about the suspected disability, and failing to consider all areas of suspected disability.
Third, you could request an independent evaluation at district expense. The district could then either decide to pay for a private evaluation or would need to initiate a due process hearing to prove that their evaluation was appropriate. Finally, you could initiate a due process hearing yourself and request that the hearing officer order an outside evaluation based on the problems/concerns you have identified.
How do adults with ADHD or learning disabilities obtain evaluations if they do not have the money?
I have a 26-year-old son who I think may have ADHD. He was not diagnosed as a child, but in retrospect was exhibiting the symptoms of ADHD. He does not have insurance and we cannot afford to pay out-of-pocket for his evaluation or testing. Is there any resource available for this?
If your son is indigent and unable to work, there are a number of government programs that he might qualify for, including SSI and Medicaid. Depending on where you live, a number of public or not-for-profit hospitals or community mental health centers provide consultation and evaluation services for people that are suspected of having psychiatric disorders, including ADHD.
Unfortunately, given the current economic situation and huge cutbacks in funding for public programs like this, it may be difficult to find an agency that can be accommodating. As a starting point, you should identify the stage agency that provides mental health services and the agency that provides public aid and health care to determine what programs are available in your community and how to access them.
What do you do if the school refuses to test your child for learning disabilities?
My daughter attends middle school in Ohio. Last year, I requested testing to see if she needed an IEP. It never happened. She has been struggling for some time now. She has asked many times for help from her teachers and they would angry and embarrass her so she stopped asking for help. It got to the point that I had a hard time getting her to go to school. This year, the school is retaining her in the seventh grade. I feel she is getting treated very unfairly and is being deprived of a education. Is there anything I can do?
Thank you so much.
If your child is not doing well in school and you suspect she has a disability, you have a right to request that she be evaluated for special education. You have apparently done this, though it is unclear whether you made the request in writing. If not, you should do so in writing immediately.
When the school receives a written request for evaluation for special education, it must either agree to conduct the evaluation, and obtain your informed consent for what the evaluation will include, or notify you of the refusal to conduct and evaluation and of your right to request an impartial due process hearing to challenge the refusal. It is unclear from your question whether you have had your child privately evaluated.
Sometimes where the parents are able to obtain a thorough outside evaluation, this can cause the school to reconsider its refusal to evaluate the child. Under some circumstances, some schools may even accept the private testing in lieu of some of the testing the school would have otherwise been required to conduct. If your child is being retained, there is clearly a significant problem with her academic progress.
Those problems may be due to a disability, though that is not necessarily the case. You can protest a retention decision to your school district's superintendent and board of education, but that does not address her need for special education. To address that problem, you may need to obtain outside testing, request a due process hearing, or file a complaint with the state education department.
In any event, you would be wise to seek advice from someone at your state's Parent Training and Information Center), and/or from a knowledgeable special education advocate or special education attorney.
Note from LD OnLine: For more information on what should happen in an evaluation, visit Evaluation: What Does it Mean for Your Child.
How can a parent get help for an ADHD daughter who is refused special education services?
I have an eighth grader with ADHD. I am meeting with her teachers, which is something I've done for the last three years. I keep butting my head against the wall because I tell them she has ADHD and I am told she is responsible for doing her homework, studying for tests, and doing good in school. The testing showed my daughter doesn't qualify for special education classes. When I try to help my daughter study for a test or do regular homework assignments, she is not learning the way I did.
How can I make the teachers understand that my child learns differently and that I am willing to work with her so she won't struggle all year long like the last two years if they will help her, too? My daughter failed four subjects in the seventh grade, but the principal passed her to eighth because her grade point average was over a 70.
I let it happen against my better judgement, but told my daughter I would hold her back this year if she didn't pass all her classes. I know she will be totally lost going into high school in the ninth grade next year. Can you offer any advice?
Your question relates to your efforts to secure help for your daughter, who has been diagnosed with ADHD and struggles academically, but has been refused special education or Section 504 protections by your school district. Children with ADHD can qualify for special education under the category of "Other Health Impairment," if their ADHD causes them to have difficulty with paying attention or completing the many other tasks necessary for successful participation in class and completion of work.
The IDEA, the federal special education law, makes clear that schools are responsible for evaluating children that are suspected of having disabilities. They are also responsible for responding to requests for evaluation for services. They may either agree to conduct the evaluation, and, with written informed consent from the parent, complete appropriate multi-disciplinary assessments to determine if the child is eligible or they must notify the parents of their refusal to conduct the evaluation and the parents' right to request a due process hearing.
When the school conducts an evaluation to determine special education eligibility, they must evaluate not only the child's academic performance, but their developmental and functional performance as well. Thus, even if a child is receiving passing grades (which may not even be true for your child) and/or is showing that she is learning based on achievement test scores, she still may be determined eligible if the assessments show that she is having other difficulties in relation to her functioning at school that are due to her disability.
For a child with ADHD, this can include difficulty paying attention in class, completing work on time, having the appropriate materials, meeting deadlines, following classroom rules, such as not talking without being called on, etc. These are all things that may evidence functional or developmental problems, even if the child is passing or showing academic progress.
Similarly, under Section 504, a child may qualify for a Section 504 plan based on having ADHD if their ADHD substantially limits a major life activity, such as learning, and requires either special education, related services and/or accommodations. The U.S. Department of Education issued a policy letter in 1991 which made clear that children with ADHD may be entitled to accommodations under these circumstances, even if they do not meet the eligibility criteria for special education.
You may need to provide clinical reports documenting the ADHD and its impact on your child's functioning at school. In addition, you may want to monitor your child's behavior at school and when doing homework, to document the ways that the ADHD is disrupting their learning, behavior, social relations, etc. You may also need to consult with a knowledgeable special education advocate or attorney to assist you in getting the school to recognize your child's needs and provide either an IEP or Section 504 plan.
Is a child who gets good grades entitled to be tested for dyslexia?
Help! I am trying to get my daughter tested for dyslexia and because she gets good grades, the school won't help me. Both my husband and I have it and I am really convinced she does, too. She is a bright girl; however, she does struggle with fine motor skills.
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.
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?
With increasing use of Response to Intervention as a mechanism for evaluating whether children might qualify for special education under the "specific learning disability" label, advocates assisting parents are finding more and more instances where parents are told that full, traditional special education evaluations are either not necessary or should wait until the RTI process is complete (at some unspecified time in the future).
While the federal regulations are now clear on the point that parents can request a full evaluation at any time during the RTI process -- and while we encourage families to do so in writing if they are not satisfied with waiting for RTI to work or not work, the comments on the regulations are also clear that Districts retain the right to turn down a request for an evaluation.
What is less clear is what criteria a District may use to turn down a formal request for a full special education evaluation. Do you have information about precedents, commentary or other sources that indicate what would be legitimate and non-legitimate reasons for a District to refuse to evaluate?
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.
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?
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).
Must the school obtain permission from the parent to conduct an occupational or physical therapy evaluation?
During a school implementation of Response to Intervention, occupational and physical therapists are being asked to participate in the RTI Process without obtaining parental consent prior to discussing the child. What are the rules on implementation of RTI and how does the OT/PT Practice acts fit into the interpretation?
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.
What is the best way to persuade our son’s school to accept the recommendations of a private evaluation?
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?
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.
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?
My son has just turned 15, recently began high school and was diagnosed with ADHD before the 1st grade. I have kept documentation of all his school work and doctors’ notes since that time. His grades were a little below average in elementary school and worsened as the grades increased.
High school has been very difficult for him, as I knew it would be, because ADHD kids hate change. He has received persistent F's and does not complete his work due to frustration. The teachers ignore him as they think he just does not care or is a trouble maker. He becomes bored in class due to lack of understanding the material andbecomes distracting to other students by engaging in conversation.
I was totally unaware that an IEP or a 504 existed and now that I have found out, I have pushed for an evaluation and went in for the results of the testing with his school. They said he does not have a learning disability and does not qualify for any special programs. How is this possible?
I was also told by a teacher under the table that the school is railroading me due to overcrowding and they do not want to dish out money for any extra IEPs. What are my options? What are my rights as a parent to combat these people?
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.
Do the IDEA 2004 criteria for SLD still require a processing disorder?
My son has a great deal of difficulty reading, but the school claims he just needs to be taught better. We are getting him tutoring. I am getting him evaluated and I think he might have dyslexia. I was told that I had to prove he has dyslexia or some other processing disorder to get tutoring. But someone else said that you didn't have to prove that there was a processing disorder with the new IDEA regulations. What are the facts?
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).)
May I have a sample letter to request that my child be evaluated to determine if he or she needs special education?
I would like to know if you have a sample letter to request for my child to be tested for special education, of if you could let me know what key points I need to include in the letter?
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.
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.
Send the letter by By Certified Mail/Return Receipt Requested
Is the school required to test a child for dyslexia?
I live in Middlesex County, NJ. My child is 7 and in second grade. He comprehends mathematics well, but cannot read or write neatly. He writes letters backwards. I want his school to test him for dyslexia. He is in a public school. Under the United States law public school must test for dyslexia. Is that true?
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.
What are the rights of children who are gifted and also have learning disabilities?
Our son is 13 and going into 8th grade. He was JUST diagnosed with a reading disorder, writing disorder, and significant deficits in memory and processing. He was also given the label of having developmental dyslexia which was written as a medical diagnosis. It was also written, however, he did not meet clinical criteria for a specific learning disabilities. I thought dyslexia was a specific learning disability? Is the criteria he would have to be failing?
The issue is he is also a "gifted" kid with an IQ close to 132 and gets A's and B's with 2 C's recently in math, though math was a strength area. He was also diagnosed with auditory processing disorder three years ago. He has had an SST folder at school with maybe two accommodations that are rarely followed. We told the school we would have him evaluated privately by a neuropsychologist. Depending on the findings, we would have an SST meeting or an eligibility for special services meeting.
His evaluation had a 30 point discrepancy in reading and a 21 point discrepancy in writing. The school considered them average scores! The school tabled the eligibility meeting and concluded it was just an "SST" meeting because summer is here. They asked us to call the first day of school to set up an eligibility meeting. I say it is pretty clear cut they will try to say he is not eligible. Without an IEP already written at the beginning of the school year, will we have to wait another whole year? Should we ask for the eligibility meeting for late summer before school starts in August?
We have been frustrated as we have been trying to have help for him the past 4 years. His grades are beginning to drop; numerous F papers but enough A's to counteract. Our state also has testing that require him to PASS to move on to the next grade (8th to 9th) and H.S. exit graduation tests to get a diploma. He tests poorly due to memory and processing deficits. Help! Thank you.
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.
What do you do when the school denies services and an independent evaluation?
Back in 2002, my son was in the 1st grade at a Private school in the Bronx, NY. I requested that my son be evaluated for dyslexia and speech and language development.
After the evaluation the school told me that my son was too young to be tested for dyslexia, that he did not have any speech/language developmental issues, and that his IQ was normal. Therefore, they said, he did not need any services. They felt he was just a very young first grader. They suggested that he be held back a year, removed from his private school, and placed in a public school in a collaborative learning class. So I did so.
After 2 years in the first grade, and then being promoted to the second grade, I noticed that my son still couldn't read. I asked for my son to be evaluated again. This time they found that he did have speech/ language impairment, some sort of reading disability. They said his IQ was just above mental retardation. I was outraged, IQ's normally don't drop that quickly unless there has been some brain damage.
Since then he has had about 3 psychoeducational evaluations. I have asked at least 3 times for my son to be evaluated and tested for dyslexia. I have been denied each and every time. My son's IEP says he is supposed to have speech therapy. He hasn't had it all year long. No one notified me until last week that they didn't have a speech therapist on staff. My son can barely read. He will be promoted to the fourth grade in September, 2006. What steps would you take next? I feel my son is slipping through the cracks. My son has told me that he is stressed out in school and I am frustrated for him.
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.
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.
Glen Ellyn, IL
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.
Do students who attend religious schools have rights to special education services?
Dear Mr. Cohen,
My eight-year-old son attends a private Christian academy in Maryland. He has received failing grades all year. The principal of the school signs off on his report card with "try your best" or "work harder". The teacher and I have been working together to figure out what's going on with my son and to help him improve his grades.
I sent the principal an email approximately six weeks before the end of the school year requesting that the school test him for LD or ADD. She responded once, that she would get the ball rolling, but no action was ever taken. We never met with the school's diagnostic personnel or the principal to discuss alternatives. I was informed that after a school receives a written request to test a child, the school has 90 days to respond, etc. Since no action was taken, what should I do now?
Thanks for your input.
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.
What are your rights when the school makes some modifications for your child, but will not say that the child has a disability?
Dear Mr. Cohen,
We have been having problems with our local school district. My son has been diagnosed with Pervasive Developmental Disorder, AD/HD, and Borderline Intellectual Functioning. The special education department claims that he is not eligible for services under an IEP or a 504 even though he has deficits and has a developmental age of 3- to 4-years-old and is now 6-and-a-half-years-old.
They refused special education services and placement in kinderprep and placed him in kindergarten last year. The classroom teacher made modifications to his curriculum and he had one-on-one instruction for the most part. Even with these things he did not meet the requirements to go on to first grade. The school is still refusing services, but recommends he be retained in kindergarten.
I am not sure where to go next. Being that he is almost seven, I do not feel it is appropriate for him to remain in kindergarten without support, or to move on to first grade unsupported; any way he goes without support he will fail. What should I do?
Garden City, KS
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.
Can slow learners receive special education services?
Dear Mr. Cohen,
My second grade daughter was recently tested for a learning disability, and diagnosed as being a "slow learner." This, as I understand, means that her below average IQ is commensurate with her learning; however, she is not mentally retarded. Not only am I at a loss for what to do, she does not qualify for the school's special education services. I have asked that she still receive services would it be legal for a school to place her in a special education classroom even though she is not a special education student if I allow it?
Thank you so much for your time.
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.
What are your rights if your child has a learning disability but does not meet the school’s criteria to receive services?
Dear Mr. Cohen,
It has taken me over three years to get my 11-year-old daughter to be formally tested for a learning disability (dyslexia). I was only able to do so by paying to send her to a private school. On her first day, the teacher called me to ask me about my daughter and if she had been checked. I told her I had several meetings via phone and in person regarding my concerns, but was told my daughter did not need it. Fortunately, my daughter was tested and was -1.1. In my state a child must be -1.7 to receive any extra help in learning.
Every day is a struggle for my daughter, who is bright and learns by memory and tests orally now that we know where her strengths are. My concern is I cannot get any assistance for her because she is not in the county school's range and I can no longer afford private schooling. Public school will not recognize her needs due to her score and I cannot accept my daughter having a lesser education simply because she is not within the school's guidelines but clearly shows she does have a learning disorder. What can I do as a parent to help my child have a quality education versus just barely getting by and/or slipping through the cracks?
Thank you for your time and assistance.
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.
What can a parent do when a school representative says dyslexia/dysgraphia is not a learning disability?
Dear Mr. Cohen,
I live in the state of Michigan and have a question regarding dysgraphia and dyslexia. My daughter just recently had her 3 year re-evaluation. The school psychologist advised that her difficulty in writing is due to dysgraphia/dyslexia which is considered to be the result of physical and visual problems. Because of this it is not technically a learning disability. He said dysgraphia/dyslexia should only be covered under OHI (other health impaired).
Is this true? If so, will her accommodations as listed in her IEP continue to be in effect through college? Our concern is that they kept saying that you never know what will happen in the future regarding IEP law. Based on that we are insisting that she be classified as both LD in written expression and OHI, do we gain anything by doing this? We figure the more documentation the better.
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.