Legal Briefs from Matt Cohen
The following are past questions and answers from Matt Cohen on this topic.
How does a child with ADHD qualify for an IEP or 504 plan?
My son has ADDHD and is under the care of a psychiatrist and psychologist who both state my son should be covered under 504. His school does not feel he qualifies for IEP. My son is about to fail his classes due to his problems. Can anything be done?
Dear Michael,
Your question indicates that your child has been diagnosed with ADHD by a psychiatrist and psychologist, both of whom recommend that your son be made eligible for a Section 504 plan. Your question then indicates that the school feels your son does not qualify for an IEP even though he is about to fail his classes.
First, you should be aware that an IEP and a Section 504 plan are different. There are different criteria for a Section 504 plan and an IEP. A Section 504 plan requires that a student have an impairment which substantially limits a life activity such as learning. In order to qualify for an IEP, the student must meet the eligibility criteria for one of the 13 categories of disability under the special education law.
In relation to ADHD, the category that is generally utilized is "the Other Health Impaired" category. In order to qualify for an IEP, the student must have a health impairment, such as ADHD, which causes limited strength, vitality and alertness, including limited ability to pay attention to the teacher, which adversely affects the students performance and requires special education intervention.
In either event, the fact that your child has been privately diagnosed would have to be considered by the school district but does not automatically require that the school make the child eligible. The school may decide to accept the outside evaluations, to conduct their own evaluations with your consent, or deny that the student needs an evaluation or services at all. If they decide that the student does not warrant an evaluation or services, they must provide you with written notice of that decision and of your right to request a due process hearing to challenge the school districts refusal to conduct an evaluation or to provide services.
(July 2008)
Can a school district deny a child the support of an aide if one is needed?
I teach a regular 3rd grade education class. I have a student who has an IEP for ADHD. This child has behavior problems, anger management problems and problems with peers. I have repeatedly requested an aide for him and have been refused. The parents have not requested one because they don't know that it is an option.
At a recent IEP meeting, this child was placed in a resource room for help with reading comprehension. I think he could have stayed in a regular classroom with the support of an aide. Is the district correct in denying coverage for this child? I have been told that I can not fill out the paper work that would prove one is needed. The school district is on a mission to dismiss as many aides as possible because of monetary issues.
Thank you
Any school policy which provides a blanket refusal of services to a category of children with disabilities may violate both the IDEA and Section 504 based on the failure to make an individualized determination of services. The determination of needs, whether in relation to an aide or any other service, should be individualized.
In addition, IDEA specifically provides that the IEP may include supports that the child and staff need in order for the child to benefit from education, as determined by the IEP team. See 34 CFR 300.320(a) (4) Parents should be aware of their rights under the special education laws.
When a staff person is directed to follow a school policy that may be inconsistent with the staff member’s perception of the child’s needs and, possibly, the child’s legal rights, they face a difficult personal, professional and legal situation. Consultation with a lawyer and/or a union representative may be necessary. It is beyond the scope of this forum to provide any legal advice.
(June 2007)
What obligation does the school system have to evaluate a child who was diagnosed privately with ADD?
My son is 12 years old. He was first diagnosed with ADD in the 3rd Grade. He is now in the 6th grade and will most likely fail. Modifications were never put in place for him regardless of how many times we asked. Finally we were told by his Vice Principal, on her own, that they would begin the 504 process for him. We waited patiently. This week when we asked for status, she said we must have misunderstood her. She said she doesn't have the authority, and that the school is already making all the necessary modifications for him.
This is completely false. Nothing is being modified; homework assignments, testing, nothing. He doesn't have an IEP or any written plan of modifications. They have however sent him to "Academic Tutorial" and In-School Suspension, for failure to turn in homework, so many times this year I can't even count them all.
He has no behavioral problems. He is well liked by teachers and friends; he is kind, considerate, polite, caring, an amazing artist, very athletic, respectful; and until recently, has maintained high self confidence. But unfortunately, I have noticed that his confidence is faltering and he is beginning to seriously doubt himself. The staff at his school blames us! They say we should be doing more for him. I spend hours upon hours working with him. I don't know how I could possibly do more. I am so angry and bewildered.
Why do they continue to refuse to initiate 504? What could possibly be motivating them to be responding this way? Do we have the right to insist on 504 and/or an IEP if our son has a diagnosis of ADD? He was diagnosed three times; University of North Texas, his Pediatrician, and his Neurologist. My son is being treated as if he has a behavior problem instead of a medical condition.
I love him so much and I am so broken-hearted to see him go through this. I feel powerless. I feel stupid for trusting the "system". We're pretty sure we need an attorney and we are looking for one. It makes me angry that we have to spend money we don't have to make them do their job. We also have secured a private tutoring agency, Sylvan, to help him get caught up on his skill gaps. An SAT conducted last year showed he was at a 9th grade level in Reading and a 2nd grade level in Math. He has a High Average IQ.
I wish no family had to ever suffer the pain and anguish we have suffered. I wish there were some way to standardize the process and treatment of children with ADD/ADHD in the public school system. We will find the money. But so very many families can't.
Thank you very much,
Terri
Dear Terry:
It sounds like you and your child have been mistreated by the school system. Under both the special education system and section 504, the school district has an obligation to identify and evaluate children who are suspected of having a disability who reside within the school district. Under the special education system, this legal obligation is called Child Find. This puts an affirmative obligation on the school district to identify children who may have a disability and to evaluate them to determine if in fact they have a disability (of course after having obtained parental consent).
When a child has been privately evaluated and diagnosed with a disability, it is especially important that the school follow through with conducting an evaluation to determine if the child has a disability for purposes of special education or section 504 services. Even if a child is determined not to meet the criteria for disability under the special education system, they should be evaluated to determine if they meet the criteria for protection under Section 504, which has broader eligibility criteria.
When a school district has failed to conduct appropriate child find efforts, the parent may be forced to request a due process hearing to force the school district to identify your child as having a disability. If the child has been deprived of appropriate services for a period of time, the child may be entitled to receive compensatory educational services to make up for the lost time.
(October 2006)
Should a parent bring an advocate with them to an initial IEP meeting?
Dear Mr. Cohen,
My child has been diagnosed with ADHD. He is a bright kid but just doesn't focus when in class and he is very disorganized. He is now in seventh grade and he still is struggling in school; specifically he is not completing all his assignments (a problem for the last couple of years) and is in danger of receiving F's in three classes.
The last couple of years his teachers have not been very cooperative with us. We have requested an IEP for our son and have been invited to attend an initial IEP team meeting. Evidently we are entitled to bring an individual knowledgeable in this area to the meeting.
My question is should we bring such an individual to the initial meeting and if yes can you recommend such a person. Thank you for your help.
Daniel
Dear Daniel,
You are seeking information on whether it is helpful to bring an individual knowledgeable about the content of IEPs for children with ADHD to an initial IEP meeting. There are a number of considerations with respect to this decision. First, it is important at an initial IEP meeting to establish positive rapport with the school staff and to communicate to them that you are interested in working with them in a collaborative manner. You wish to give them the message that you have confidence in them and hope to have a positive working relationship. In some instances, bringing outside individuals with you to the initial meeting may give the school staff a message that you don't trust their expertise and/or may threaten them because your outside advisers may appear to know more than the school staff do about the specific things that you are asking for. Thus, care should be given in introducing outside professionals into initial IEP meetings in order to avoid offending the school staff.
At a minimum, however, it is very important that you come into an IEP meeting, whether an initial meeting or later, with as much information as possible as to the types of accommodations and services that your child needs in order that you can be sure that the school staff is doing what they should be doing in developing an appropriate program for your student. If you decide it is premature to bring an outside professional to the meeting, it is nonetheless helpful to have consulted with outside professionals to have a clear idea of the types of services and accommodations that should be included in the IEP so that you can make informed requests of the school district and/or make sure that the proposals that they are offering are sufficient.
If you have struggled with the school to get the initial meeting and have the impression that the school staff is not sophisticated about how to respond to the needs of a child with ADHD, it may be worthwhile to bring outside clinicians to an IEP meeting even though it may offend some of the school staff. In preparing for an IEP meeting at which you intend to be accompanied by an outside clinician, it is useful to review how you will approach the school staff and encourage the outside professionals to do so in a manner that is collaborative rather than confrontational. Different clinicians have different personalities and orientations to such meetings. It is important to assess this in advance and to come into the meeting with as positive an orientation to working with the school staff as possible.
In addition to the participation of outside clinicians, or in lieu of such participation, it is generally a good idea to bring at least one person along as an observer and friendly presence. It is never a good idea for a parent to go to a meeting alone. If two parents are not available, whether because it is a one parent household or the second parent cannot attend, it is best to arrange for a close friend, extended family member, or some other significant person to attend with the parent. This person should be given the role of note taker for the parent. It is important to review with that person the role in order that they not inadvertently step on toes when the parent was seeking a more restrained approach to the school staff.
(February 2006)
What to do when you find out that your child has the right to be evaluated for a disability years after they have started having problems in school?
Dear Mr. Cohen,
Despite being very bright, my daughter was falling behind in first grade. She was diagnosed with ADD and this was discussed during a parent teacher conference.
She barely got by, but made it to second grade, and fell even further behind. We met with the teacher, and asked she be evaluated because we thought there may be something going on affecting her learning other than or along with her ADD. At that time we did not know anything of the ADA/Section 504 process, and were not informed. Months later, we found my daughter was being punished because of not completing classroom assignments.
When we asked about the evaluation, they said we never gave them anything saying she had ADD, so they were under no obligation to do anything, but kept telling us we had to work with her at home.
It is now five weeks until the end of the school year, and we still have nothing, and they can not say whether there is a problem or whether my daughter will pass second grade. I want to file with the OCR and place my daughter in a private school.
Could you please go over this process and advise on what else can be done?
AM
Dear AM,
While it is generally wise to inform the school of any outside diagnoses, including ADHD, their obligation to evaluate is not triggered by the provision of a diagnosis by an outside clinician, but rather by a referral for evaluation, coupled with a determination that there is reason to suspect a disability is present. Since you asked about an evaluation, you should have been informed of the referral process, which would have triggered the timelines for completion of evaluations. If the school decided not to conduct an evaluation, they were legally required to inform you of their decision and that you had the right to request a due process hearing to challenge the denial of the evaluation.
However, if you did not put your request in writing, you should consider doing so immediately, including reference to the prior requests that you made orally. Further, the ADHD by itself might have been sufficient to cause your child's academic problems. If she is having problems and ADHD was suspected, the school should have conducted an evaluation to determine if she had ADHD and whether it was adversely affecting her school performance.
As to filing a complaint against the school district, you have several options. First, you referenced filing a complaint for violation of Section 504. You can do this by going to the website of the US Department of Education, Office for Civil Rights.
You also have a right to request a due process hearing against the school district for violating Section 504. You can do this by sending a request for a hearing to the school superintendent and special education director. You should also request a copy of the district's Section 504 and ADA policies (these are public records) and for the district to identify the 504 coordinator.
Finally, because your child may be eligible for special education under IDEA, you could also file a complaint with the state education agency or file a request for a due process hearing with the school district. However, if it is possible to work things out with the school district without an adversarial procedure, that is preferable.
(February 2006)
Can a school district stop special education services because a student’s IQ is of average range?
Dear Mr. Cohen,
Can a school district take a child off an IEP because his IQ is of average range? Per the school district he has been failing because he does not complete his homework. He has had the coding of LD for the most of his school life, but now with his medical coding of ADHD the district feels he does not have LD.
The district is now putting him on a 504, without his FBA. This student has failed for the past five years. What would you recommend?
Thank you,
Kim
Dear Kim:
School districts may only terminate special education services after a full evaluation and determination that the child no longer meets the criteria for special education. Their criteria require that the child have a disability that adversely affects school performance and which requires special education intervention.
Many children with disabilities have average or above average IQ's. The presence of an average or above average IQ by itself is not a disqualifying characteristic for eligibility for special education. In fact, the law specifically provides that a child is not excluded from special education just because he or she is receiving passing grades.
It appears that the school district is unaware that a child can be eligible for special education under the category Other Health Impaired if the child has been determined to have attention deficit hyperactivity disorder which is adversely affecting the child's performance. ADHD should not be a basis for eligibility due to a learning disability, but is a basis for eligibility under the OHI category.
(February 2006)
For more information on this topic, please visit the ADHD section in LD InDepth.
