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Accommodations & Modifications

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

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

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 The school keeps telling us that his IEP is no longer valid because he does not "need" a specialized program since all of his accommodations can fall under a 504 plan.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

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

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

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

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

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

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

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

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.

My child has missed a lot of school due to illness. Now her teacher will not let her make up work or attend the Special Olympics. What can I do?

My daughter has a learning disability and mental retardation, and she has been diagnosed with major depression disorder, anxiety, and a panic disorder. She misses a lot of school due to her depression and was hospitalized twice last year for it. Because of her absences, her special education teacher will not let her attend the Special Olympics this year. In addition, her teacher will not let her make up the work she missed, although most were excused absences. What rights do I have in this situation?

Your question presents two distinct problems related to your child's frequent absence from school. In relation to both of them, a starting place would be to make sure that you have medical documentation of the need for her to miss school, whether for physical or emotional reasons or both. You might need a note from both a mental health professional and her primary care physician, but it is important to establish that the absences are bona fide and related to her emotional disorder and/or a physical illness.

Assuming you can document this, her absence should not be a basis for exclusion from the Special Olympics. Unless her conditions pose a health risk to her participation, it is arguably discriminatory to use her absence as a basis for exclusion. You may want to contact the Special Olympics to check their rules for eligibility, as I suspect that the teacher is making her own decision rather than following the organization's policies.

With respect to the equally or more important issue of the refusal to allow her to make up work, this should be addressed in two ways. First, you should ask for a copy of the school's policy on medical absence. If a child, with or without a disability, is absent from school for legitimate medical reasons, most schools permit the students to make up the work. Second, you should seek a specific accommodation in her IEP that provides for a procedure for her to make up the work. If it is in the IEP, the teacher is legally required to follow it.

Finally, if she is absent for prolonged periods of time, most states have a procedure to address prolonged medical absence. With medical certification, if she is absent for the period provided by state law (generally two or three weeks) and there is medical documentation that her absence will extend beyond that period, the child is entitled to some form of home tutoring from the school system at district expense. Typically, this is only for several hours a week but has the advantage that the home tutor must provide your child with the work that the class is doing each week and assist her in keeping up with the work. However, this procedure only applies for extended absence and requires medical documentation. The specifics vary by state, so you should check your state rules.

I think my child still needs the accommodations that an IEP can provide, but his teachers disagree. What should I do?

My son has been diagnosed with a mixed receptive and expressive learning disability. He has been on an IEP since kindergarten and is now in 6th grade. His reevaluation came up, and the testing is showing he is making adequate progress; so they want to take him off his IEP. What rights do I have to keep him on one to maintain his accommodations?

Dear Traci:

First, the fact that your child is making appropriate progress doesn't automatically mean the services are not required, though schools often respond this way. Part of the decision should include consideration of whether the services remain needed in order for your son to make the progress. If the school proposes to discontinue services, you have the right to request a due process hearing, which you should do immediately upon receiving the school's decision to terminate services. If you make a timely request for a due process hearing, the school is supposed to continue services while the dispute is pending. This can give you time to gather information as to why services are needed, potentially get outside evaluations, and potentially consult with or get the assistance of a knowledgeable advocate or attorney. In addition, even if the school decides to remove eligibility for special education through an IEP, your son may still qualify for services and accommodations under Section 504.

My daughter's interventions have been altered based on her good grades, but she still needs help. What should I do?

My daughter is in sixth grade, and I have a problem with her school. She was diagnosed with dyslexia back in 2006. She was getting a lot of assistance with her reading last year through Section 504, and she did fairly well. This year the committee decided to remove some of the modifications based solely on her grades.

Last year she would get 1 hour and 15 minutes per day for both her interventions. Now she is getting 30 minutes a day for the Herman Method 4 times a week (if the teacher is not absent), and 45 minutes a week for the Reading 180. On top of that, the interventions that she is getting right now are being done by instructors who are not qualified to be giving them to her. I told them that the reason she had been doing so well last year is because of the assistance that she had been getting — the amount and from qualified teachers. My daughter's grade level of reading right now is third grade three month; they seem to think that is okay even though she's now in the sixth grade. What should I do?

Maria

Dear Maria:

First, the requirement for "highly qualified" teachers does not automatically mean that they must be fully trained in a particular teaching technique. However, these programs generally explain what level of training is needed to do them correctly. In addition, the special education law requires that schools use research-based programs to the extent practicable. Generally, the research based programs are based on carrying them out in a way that is consistent with how they were designed to be carried out (including by teachers with adequate training).

Schools should not change or reduce services without first conducting an evaluation to verify that what they are doing is correct. Evaluations are required before significant changes are made to a Section 504 plan as well. From your description, though, your child may actually be eligible for special education services through an IEP. If your child is reading three years below grade level, the school needs to justify why reducing, rather than increasing services, is appropriate. There would be an argument that they need to be doing more, not less.

I believe that my child's IEP needs to be reevaluated, but his teachers disagree. How do I make sure that his plan remains effective?

My son (13) is on an IEP for Reading/Writing/Math. After many years of fighting with and begging the school to let him off of his IEP for reading and writing so that he could be in the general ed classroom for those two subjects, they agreed to let him go to general ed, for reading and writing. But they will not take reading and writing off his IEP, as they say "he still needs the support."

I don't think he needs the support; he's doing great in the regular general education class for reading and writing. And because they leave him on his IEP for those two subjects, he has to go to the Resource Room for reading and writing during 6th period. This takes away his opportunity to take an elective, like woodshop, which is important for him because it teaches him a trade. He spends his entire 6th period for reading and writing in the resource room doing homework from his other classes while trying to block out the noise from the other kids. He does not spend 6th period in the resource room with a special ed teacher working on his IEP goals.

Also, his language arts and social studies general ed. teacher says she is modifying his curriculum "substantially," which I respectfully completely disagree with. I work with my son every night on homework, and I can see what the other children are doing compared to my son. I think his curriculum is fairly modified. Can you please tell me if I, as his mother, against the school's desire, can take him off of his IEP for reading and writing but leave him on for math? And, if so, does leaving him on for math ensure that he will receive accommodations/modifications in his other general ed classes?

Thank you so much!

Dear Lynn:

First, it is not correct that a student must be in a special education classroom, just because they have an IEP, regardless of the disability or subject. Schools are required to provide services for students with IEPs in the least restrictive environment, to the extent possible. Where supplementary aides or services are needed in order for the student to be successful in regular education, these should be included in the IEP.

If your son needs supports in math but not in reading and writing, you can request an amendment to the IEP to focus on that problem. If you believe your child no longer needs help in reading and writing but the school does, you should consider either requesting a reevaluation to assess this or consider getting an outside evaluation to address this. You should also assemble as much information as you can about how your child is doing in these areas to show that he is capable of doing the work (and is doing regular work) without special education.

If you disclose a learning disability on a job application, does the employer have to provide accommodations?

If you put down on a job application that you have a learning disability or ADHD, is the employer supposed to offer help? I always put this on my applications but have never gotten any kind of help at work. What can I do about this?

Dear Wayne:

Employers are not permitted to ask about disabilities on job applications and you are not required to state that you have a disability.

If you meet the bona fide qualifications for the job and are given a preliminary offer, they may ask further questions that are job-related that may relate to a medical condition. More importantly, if you have a documented disability and require accommodations, you may present evidence of your disability to the employer, as well as documentation of the need for reasonable accommodations.

However, this is typically done after you are hired. The employer is not obligated to provide you with an accommodation simply because you identify that you have a disability. Check the Equal Employment Opportunity Commission Web site for information about your rights under the ADA in relation to both the application process and seeking accommodations after you are hired.

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.

Dear Michelle,

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 a school change the services agreed upon in the IEP meeting without consulting the parents?

Hi Mr. Cohen,

We have a 9-year-old daughter with many issues — she has ADHD, Tourette's, OCD, a specific learning disability in listening, extreme anxiety, and a new diagnosis of bipolar disorder.

Despite all this, she is extremely bright, and it has taken several years for the public school system to acknowledge her issues. She has an IEP under the categories of other health impairment and specific LD.

Last month school became too stressful for her, and the psychiatrist decided (with us, her parents) to remove her from school and let her have homebound schooling provided by the district. A new IEP meeting was convened, with all present agreeing to provide her with 15 hours per week of homebound services. That amount was ordered by her doctor.

Present at the meeting were the parents, both the special ed and regular ed teachers, and the special ed coordinator, all of whom agreed to the 15 hours. We have this meeting on tape.

This past week, the parent coordinator called to tell us the services would only be provided for three hours. The school did not provide written notice of this, just a phone call. Also, they did not amend the previous IEP with the new placement, even after we requested an updated IEP. We have protested by phone and via email saying that we do not agree with the reduction in hours, and still want the 15 promised.

My question is, can they legally be required to provide 15 hours? How can we get them to honor their commitment made at the IEP meeting? This is not FAPE. Please help us!

Dear Leigh:

States have differing requirements for the minimum level of services required for homebound instruction as a matter of law. You should check your state's special education rules to determine this.

However, if the school wrote an IEP providing for 15 hours a week of service and an administrator changed this after the fact, this is a unilateral change of service without an IEP meeting or your participation. You should immediately consult a knowledgeable special education advocate or attorney and may need to file a due process hearing immediately in order to block the change in service levels.

As you did not receive prior written notice, you may also be able to force a return to the promised levels on the basis of "stay put" placement, even if some time has passed since this unilateral change was implemented. Again, you need legal consultation to follow up on this.

Is an IEP applicable once a student graduates from high school?

My son has Asperger's and learning disabilities. He is 17 years old and will graduate from high school in the Spring of 2010. My son has had an IEP for years. There are numerous accommodations listed on his IEP.

My question is, once he moves on to a two- or four-year college, will his IEP still be of any use to him? Will he get any help?

Dear Mary:

Once a student graduates from high school with a regular education diploma, the IEP is no longer controlling. The IDEA/special education law has no legal force with respect to colleges or universities.

However, these institutions are required to provide reasonable accommodations pursuant to Section 504 and the Americans with Disabilities Act. The IEP will provide useful information to document the need for accommodations, but your son will need to contact the school's disability services office to present documentation of the disability and of the need for accommodations.

Under some circumstances, even if the student has met the technical requirements for graduation, if he or she still has significant unmet needs — such as in the areas of life skills, organizational skills, or social skills — he or she may be eligible for services beyond the twelfth grade year. But this would mean delaying graduation. In some instances, the transition plan could involve participation in community college courses with continuing support from the public school in various ways.

How can I help my adult daughter get an accommodation or exemption on her math requirements so she can and become a teacher?

My 23-year-old daughter has a well-documented, severe, and longstanding math disability. She has been told that to earn a degree in early childhood special education and to teach with a certificate in New Jersey she must pass two semesters of college-level algebra.

She is in the process of failing remedial algebra again. Can you suggest any agency or way to try to get an accommodation so that she can graduate college, take the Praxis (required exam for teachers), and teach? She has very strong verbal skills and is capable of all of the academic and practical work required for early childhood education.

It has been my experience that even typically developing preschoolers do not have to learn to do quadratic equations. I am not sure why the teacher must demonstrate that competency to teach preschool math. We appreciate any suggestions you can offer. Thank you.

Dear Jane:

I suggest that you contact the state agency responsible for teacher certification. They should have a procedure for granting waivers or accommodations for various requirements for certification. They may feel that these courses are fundamental to the preparation for the job, but as you point out, this seems questionable.

They should also have an appeal procedure to address what to do if they refuse to make an exception. In order to assure that you follow the right procedure, you and your daughter should consult with a knowdledgeable ADA/disability rights lawyer in your area for advice. You may get information on possible lawyers from COPAA, from the American Bar Association's Disability Lawyer Search engine, or by contacting the New Jersey Protection and Advocacy agency to get the New Jersey agency.

You may need expert support to make the point that the math skills being tested are not fundamental to the job for which the license is being sought. You may also be able to identify and propose other ways for satisfying the math requirement.

How can I help an employee who exhibits signs of dyslexia but does not have a diagnosis?

One of our employees appears to have dyslexia, which manifests itself in the inability of this employee to correctly alphabetize and therefore file cases where they belong.

She is not approachable about this topic and has not been diagnosed with LD; however, I would like to be able to assist her in filing alphabetically. Any suggestions or tools to achieve this goal would be appreciated.

Dear Diana,

You should consult court administration regarding any formal action in relation to a perceived disability.

However, there are various strategies that could be suggested to assist the employee with the filing, including providing some form of alphabet grid for her to have available as a reference.

There may also be hand-held computer devices that have the capability to help to organize things in alphabetical order. Although it might involve extra work, you could implement a symbol or number system to correspond to the case names to allow for sorting that isn't dependent on spelling.

She may benefit from formal evaluation for a learning disability. If you are her supervisor, you would need to handle this in an appropriate manner, with help from the human resources staff.

What can I do when a teacher implements some IEP accommodations but not others?

My daughter is a senior and she was diagnosed with a learning disability at the end of 2006. Her IEP was written by the school and although most teachers honor it, for some reason we always run into issues with the math teachers. My daughter is really behind in math and reading.

Her IEP says she has extended time for testing but her math teacher will only allow her to finish pages that she has not started. The teacher states that my daughter is not allowed to go back to the other pages. If you have extended time you should be able to utilize the rest of your time taking the test however you like.

It just seems like the teacher is reluctant to honor the IEP. I spoke to the IEP team about the teacher and the response was, "Oh she is an excellent teacher."

This is really difficult for me to understand. It seems as though there is something completely wrong with this picture.

Dear Chalina:

Teachers do not have the option to selectively implement IEP accommodations, whether they are good teachers or not.

As a first step, you might try to add language to the IEP to clarify exactly how the extended time is supposed to work and that it is supposed to be provided in math, as well as other courses. This would eliminate any potential for ambiguity. You may also consider going to administrators in the school or school district to express your concerns, as the IEP team may not be able to address the issue or feel comfortable doing so.

If those steps are unsuccessful, you also have the options of filing a request for mediation or a due process hearing, filing a compliance complaint with the state department of education, or filing a complaint with the Office for Civil Rights.

Can a 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.

Dear Kathi,

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 can an adult with LD get accommodations on the ACT?

I have a daughter with LD. She is 31 years old and is trying to get an associates degree. What is keeping her back from continuing her education is not being able to pass the ACT reading and writing tests. The tests are given online and do not allow you to go back to correct or complete a page.

Is there a way that she can get the paper form of the test? Or is there a different kind of grading for adults with LD? She has 40 credits, so she is able to pass some of the courses but she is at a standstill now because of this test.

I have tried to get in touch with the National Center for Learning Disabilities here in New York to no avail. I would appreciate any help that you can give me concerning this matter.

Thanking you in advance,

Jennifer

Dear Jennifer:

If a person has a documented disability that requires accommodation in how testing is administered, he/she should request accommodation to the test agency. The individual will be expected to provide clinical documentation of the existence of the disability, the impact of the disability, the need for the accommodation, and the relationship of the disability to the requested accommodation.

Alternative test formats are often used to accommodate people with various types of disabilities. However, the request for accommodation must be reasonable. If the testing is all done online, some investigation would be needed as to how alternative testing could be done under appropriate, controlled conditions that would still accommodate her needs.

Further, there would need to be clinical documentation of why the particular accommodation in relation to the test format was necessary as a result of her disability.

Are summer school teachers required to follow a student's IEP?

My daughter has a learning disability in math. She has an IEP that addresses this. She failed math this last school year so she went to summer school and I was told she was failing math there. I mentioned to the teacher that she has an IEP and was told that they did not have to address the IEP during the summer because they have a skeleton crew and don't have adequate staff. Can you please let me know if this is legal? They have failed her in school because they would not provide her help.

Dear Stephanie:

First, if a child is not making adequate progress and loses progress during breaks, he/she is entitled to receive extended school year services over the summer to address the disability. These services should be spelled out in the IEP and should be sufficient to allow the child to make progress.

Even if your daughter was in regular math class, if she has an IEP due to her math disability, it would be likely that she would be entitled to accommodations and other assistance to help her with the math in the regular summer school program.

Further, given that she has an IEP, you should question the adequacy of her math instruction during the regular school year, as the IEP should be designed so that she will make progress. If she is failing, that is an IEP issue, and the IEP team should determine why she is failing and what is needed in order to allow her to make adequate progress.

The school district wants me to use a curriculum that has not been effective for my students with special needs. What can I do?

I have been teaching for 39 years. I am currently teaching special education in South Carolina (it's my third year in the district).

For the past two years I have been teaching in a self-contained cross-categorical classroom (Tier III). I have used my background experience, knowledge, and personal funding to implement programming that has had very compelling test results.

I have not been using the programs required by the district that have already failed the students. This has resulted in a power struggle with district office and this school year I will be required to teach the district required programs. I have made every effort to work with district office and building administration to prevent certain failure for my students. As the district can require me to teach what they may, I want to know what data or avenue would best support myself and parents to provide the programming that will best meet the needs of the students.

How should this best be addressed with the least impact on the students? Would you please be specific to NCLB and IDEA? Thank you.

Richard

Dear Richard:

Your question addresses how to address the school administration's requirement that you teach students with disabilities using a curriculum or methodologies that have not been effective for them.

Under both No Child Left Behind, which applies to all students, and the IDEA, which applies specifically to students in special education, the schools are required to provide peer-reviewed, scientifically-validated instructional programs to the extent practicable. Equally important, under the IDEA, schools are required to provide specialized instruction, including adapting as necessary, the method, content, and mode of delivery of instruction to assure that the student's program is reasonably calculated to provide the student with a free appropriate education.

Assuming you have data on the ineffectiveness of the school's program (and the effectiveness of your methods), you could potentially file a complaint with the Office for Civil Rights for a violation of Section 504 (which also requires the provision of FAPE), you could file a complaint with the state education agency, or you could share information with the parents of your students to inform them about this information and their right to request a special education due process hearing.

You may also conceivably have a right to a grievance through your collective bargaining agreement, but that would depend on the language of the agreement. However, you may wish to get legal counsel before taking any steps that would lead to a dispute with the school administration.

Should accommodations and modifications that affect grading be documented on report cards?

How should a school be documenting accommodations or modifications that affect a student's grades? Should they be noted on report cards/permanent records?

Dear Debbie:

When a school is providing accommodations or modifications that affect a student's grades, these accommodations should be noted in the student's IEP or Section 504 plan. As a general matter, however, school are not supposed to share information on a transcript or a diploma that has the effect of disclosing that the student has a disability or flagging him/her as a special education student, unless the educational program has been modified to such an extent that the student is not receiving a regular diploma.

What rights does a teacher with a disability have?

I am a teacher with ADHD. What, if any, rights do I have? Where should I look for information on handling this successfully in the workplace? There are modifications for students but as far as I know nothing for teachers.

Dear Clara:

You are seeking information on your right to accommodations as a teacher with ADHD. Assuming you work for a public school, your rights are determined by the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, state disability laws, and your union contract.

As a general matter, people with ADHD that are otherwise qualified for their job are entitled to receive reasonable accommodations in employment when needed to address the impact of their ADHD on their ability to successfully perform their work. The Equal Employment Opportunity Commission has regulations and explanatory material on the rights of people with disabilities in relation to employment.

I've been denied accommodations for the LSAT. What can I do?

Hi, I recently took the LSAT and they wouldn't give me accommodations. I have been diagnosed with a learning disability since I was in third grade. They told me that I needed more up-to-date testing. I have talked to about 10 psychologists and they all have told me that it is very hard to get accommodations for the LSAT. I just think this is terrible.

Because I read a lot slower than others I only got to about half of the questions. Yet I answered most of the questions I did get to correctly. I am someone who needs extra time to read and process information.

It looks like I will not be able to go to law school because the people at the LSAT will not help me out. I was wondering what you think I should do.

Dear John:

Although many test agencies are being more demanding in relation to documentation, they are allowed to ask for current clinical information in many circumstances, even when there is a long history of disability and accommodation. On the other hand, with current clinical evaluation and the history of problems and accommodations, there should be a basis for arguing for accommodations.

My experience is that many of the test agencies deny many initial requests for evaluation but do agree to some or all of the accommodations if the applicant appeals and provides additional supporting data documenting the existence, severity, and impact of the disability and the need for the specific accommodation.

In addition, because of recent amendments to the Americans with Disabilities Act, the definition of disability has been broadened and will likely make it easier for students with LD, ADHD, and other neurologically-based disabilities to obtain accommodations on these sorts of tests.

Can a school deny a student assistive technology because he/she is not failing?

My 11-year-old son is diagnosed with ADHD and anxiety disorder. I am finally getting the opportunity for a Section 504 plan so that he can have some accommodations for completing tests, assignments, and homework.

My son's particular problem is in reading. It normally takes him one hour to read 10 pages of a fifth grade level book. His performance on the Maryland State Assessment (MSA) lead to him getting a 504. His teacher observed how slow he was reading and he did not finish the test.

I have downloaded Kurzweil 3000 and scanned in his books. (In case you are unfamiliar with Kurzweil 3000 it is a scan and read program that tracks each sentence in a higlighted color and each word in another as it reads.) The students are required to read five grade level books per quarter and he has not been able to reach this goal. However, he was able to achieve this goal easily this quarter due to the Kurzweil 3000. He reads 20 pages in 15 minutes.

The school is saying that provision of that software is not needed unless you cannot read at all. My contention is that my son should be provided whatever it takes to allow him to perform the same work in the same amount of time that is expected of his peers.

I do not want him having less homework and extended assignment/test time. That sets up a bad precedent for my child, expecting less of himself and expecting more from the system. It would be best if he could work independently just like his peers.

What is your legal opinion on this?

Dear Pam:

Children are entitled to be evaluated for the use of assistive technology, such as the Kurzweil scan/read program, if it is suspected that they may benefit from the technology. If it is determined that the assistive technology is needed for them to benefit from their education, it should be provided as part of the IEP.

The need for assistive technology should be based on the needs of the individual student and certainly should not be based on a rule that the student must be failing. In fact, the 2006 IDEA regulations explicitly stated that the fact that the student is getting passing grades or progressing year to year does not, by itself, mean that the student is receiving a free appropriate education. In other words, total failure is not a permissible prerequisite for receiving particular special education or related services.

Can a school ask parents for a "co-pay" to help cover services listed on the IEP?

My wife and I have a son who is 6 years old and has autism. The IEP team met and decided he needed a one-to-one school aide for next school year and this has been placed in the accommodations/modifications section of his draft IEP. Subsequent to the IEP meeting, the school system has told us that the aide is for behavioral needs, which is covered under the Comprehensive Services Act, and therefore we must pay a "co-pay" for this aide's services.

We have refused to pay a co-pay for this aid saying that the aid is identified on the IEP and the local school system is responsible for providing our son with a free and appropriate public education. Does the local school system have any authority to require us to pay for an aid that is for use in the school only and identified in the IEP?

Thanks,

James

Dear James:

Your school district is apparently insisting that you utilize some form of public or private health benefits to subsidize the cost of a one-to-one aide, referenced in your son's IEP.

Schools may ask the parents if they are willing to utilize third party coverage to pay for covered therapies or other related services. However, under no circumstances can schools require parents to use third party coverage if there is any out-of-pocket expense to the family, including deductibles, co-pays, exhaustion of lifetime maximums, or triggering any exclusion or pre-existing condition problems.

Under the IDEA, the child is entitled to a free appropriate public education. This means that the education, including any services listed as needed in the IEP, must be provided at no cost to the family.

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

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

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

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

Dear Pam:

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

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

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

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

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

Can a student with a 504 plan be penalized for not passing state standardized tests?

Hello,

I am wondering if you could address the issue of the state standardized tests (PSSAs in my state of PA) being used as a requirement for graduation and how this applies to children with a 504 plan. Currently, my 13-year-old son, who has cerebral palsy, has a 504 plan in place. He does not have an IEP because the district evaluated him twice and did not find identifiable learning disabilities. However, we know he is VERY behind in math, and that written expression is very difficult for him.

He consistently tests at the Basic level on the PSSAs and will be placed in different classes starting next year because the district did not meet Adequate Yearly Progress. The classes are called "standards" classes and are specifically for students who test below proficient, like my son. Also, in order to address the AYP failure of the district, passing (scoring proficient) on the PSSA tests will now be a condition of graduation. This type of plan was struck down in Alaska in 2004.

I am also concerned that putting him in these special standards classes is a violation of what his 504 protection affords him, specifically this — children with disabilities must be educated with their nondisabled peers "to the maximum extent appropriate."

Your help is much appreciated.

Thanks in advance.

Sandy

Dear Sandy:

Your questions raises many issues, some of which are particular to your son and the way he is being treated and some are general in relation to the impact of the state wide tests.

In relation to your concerns about the fairness of the Pennsylvania procedure, you may get useful information from the Public Interest Law Center of Philadelphia, which is involved in many of these issues, and from your state's protection and advocacy agency. Your question also raises the important issue of whether the remedial regular education class is being provided in lieu of the development of a more appropriate special education or Section 504 intervention.

In addition, your description of the situation suggests that your son may also be improperly excluded from eligibility for special education services based on criteria that are inappropriate and/or misapplied to his situation and disabilities. Even without an IEP, he may be getting fewer protections and services then he should through his Section 504 plan. There are many things that can and should be offered through a 504 plan, along with the Section 504 prohibition on discrimination against people with disabilities.

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

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

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

-Sped teacher in Ohio

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

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

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

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

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

-Linda

Dear Linda,

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

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

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

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

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

Is it possible to get the GPA requirement for a bachelor’s degree modified?

My son, with ADHD, has been trying to meet all graduation requirements for his bachelor's degree. The college he attended did not modify any requirements for him, nor did they modify any coursework for him.

He has met all graduation requirements but one. His grade point average is .129 below that of the graduation mark. Is there anything he can do to secure a modification of that requirement?

Thank you for your expertise and help.

I am reluctant to provide an overly broad response to your question, as there may be important details that could impact his position. It is unclear from your question whether he has previously made a formal request for accommodations, with appropriate documentation of his disability and need for accommodations, and been denied, or if he has not formally requested accommodations and the issue is coming up for the first time now.

If he requested accommodations and was denied, he may have legal arguments relating to the failure to provide the accommodations contributing to his lower performance and resulting lower grade point average. However, there are timelines that govern how much time can pass within which one can file complaints for failure to provide reasonable accommodations.

If he did not request accommodations until now, it would be difficult to argue, at this point, that the GPA requirement should be modified, when he did not seek accommodations earlier or avail himself of accommodations that might have allowed him to achieve higher grades. In general, it is difficult to obtain modifications of a GPA requirement for graduation.

He should consult the school's disability services office, review the school's disability policy, and consider consulting with a lawyer knowledgeable about higher education disability law issues. He also has the option of using the college's ADA grievance procedure or filing a complaint for disability discrimination with the Office for Civil Rights of the U.S. Department of Education.

Can the school force an LD student to take a specific class as an elective?

Our 15-year-old son, diagnosed with Dyscalculia and Dyslexia is being forced to take a second math course in high school as an elective because he scored at Academic Warning in math on state assessments. In so doing, he will lose one of his two electives and have to choose between Band and Study Skills. Losing electives is detrimental to his success in the school setting, in our opinion. What are his rights and how do we advocate on his behalf in this situation.

We would like for this course to be his math elective instead of free choice elective if it is so important for him to pass the state assessments. Surely we aren't the only parents in this situation.

Cathy

Dear Cathy,

I am unable to determine from your question enough information to fully answer it. However, if your son has been identified with a learning disability in math, it may be appropriate for the IEP team to revisit his math services and develop a more appropriate and effective math program, rather than have him take two periods of math.

While the rules in relation to state tests vary from state to state, the IEP team generally has some authority to provide for individual accommodations and/or deviations from normal requirements to address a child's needs and the schedule and test accommodations that are necessary as a result of their disability.

As to the issue of a math class vs. electives, the IDEA/special education law does not address a specific entitlement to electives. However, Section 504 prohibits discrimination on the basis of disability. One might argue that it is discrimination based on his disability to prevent him from participating in normal electives due to his math problems, particularly if there was a problem with the adequacy of the math instruction.

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

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

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

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

Kimberly

Dear Kimberly,

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

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

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

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

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

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

Thank you,
Steve

Dear Steve,

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

Can the responsibility for a child's education be shared between homeschooling and public schooling?

I don't know where to submit a question, and I haven't seen this on your website. Can modified school hours be incorporated into an IEP in the state of Georgia? If not, are there states that have allowed this?

I would like to see a happy medium between straight public school and home school/virtual academy. My daughter needs more one-on-one time; yet I am not allowed to provide that during school hours when her mind is most fresh. Part-time school or early release would be desirable. Thank you.

Juanita

Dear Juanita,

Your question addresses whether your child can have a modified/part-day schedule in Georgia. I can not respond in relation to Georgia. In fact, the rules on this vary from state to state.

Some states are very supportive of children attending the public school for part of the day and home-schooling for part of the day. Other states prohibit this option unless it is recommended specifically by the IEP team. You will need to check your state's rules to determine what is permitted.

What are the legal rights of a gifted child with non-verbal learning disabilities?

My son has NLD. The school doesn't recognize this and will not make any accommodations to help him. He is in the gifted program, but isn't "acting" the way they think he should (focus issues). So now the school wants to move him into a regular classroom without any additional resources (since they don't recognize NLD.) How do we get them to recognize this and get the help we need?

Betsy

Dear Betsy,

Your question raises two separate concerns regarding, first, the unwillingness of your district to recognize your son's non-verbal learning disability, and second, the unwillingness of the school to continue to serve your son in an accelerated or gifted program because he is performing adequately from an academic standpoint, although he is not functioning well in other ways.

IDEA and the special education labeling system do not explicitly list every clinical or medical disorder that may constitute a disability and adversely affect a child's ability to successfully perform at school. The nature of non-verbal learning disabilities are such that the child may clinically meet the criteria for the diagnosis of a non-verbal learning disability, but not satisfy the educational criteria for one of the thirteen categories for disability.

However, it is worth exploring further whether or not your child does in fact meet the criteria for one or more of the categories of special education eligibility, based on a more careful review of his records and a more thoughtful analysis of the potential categories where he might be eligible.

First, a child with a non-verbal learning disability generally has deficits with respect to visual perception and non-verbal thinking skills. Some of these deficits may manifest themselves in relation to explicit learning disabilities which meet the criteria for specific learning disability. Often, children with non-verbal learning disabilities have deficits in math and written expression which may be documented through more careful analysis of the existing test data or more in depth testing in relation to areas of academic functioning in which the student has relative weaknesses.

Second, a student with non-verbal learning disabilities often has deficits in social perception and interaction. These may meet criteria for eligibility under the emotionally disturbed category or under the speech and language category with respect to deficits in pragmatic language. With respect to the potential areas of eligibility described above, caution should be used with respect to the use of the emotionally disturbed category, as this may lead to misinterpretation or assumptions about the students difficulties or a tendency to group the student with other students with very different emotional or behavioral problems, which would be inadvisable for a student with a non-verbal learning disability.

With respect to your son's need for accelerated or gifted services, the lack of focus itself may indicate itself a disability which could qualify him for special education or 504 eligibility. In addition, a recent advisory letter from the U.S. Department of Education affirms that the fact that a student is bright and capable of functioning in upper level classes, but is unable to consistently meet the standards of those classes due to their disability, is not by itself justification for removing the child from those classes to put them in easier classes. Instead, consideration of the provision of accommodations or supports in the upper level classes should also be made.

The U.S. Department of Education Office for Civil Rights letter was issued on December 26, 2007. In that policy letter, the Department made several statements that were relevant to your question. First, the Department expressly stated "the practice of denying, on the basis of disability, a qualified student with a disability the opportunity to participate in an accelerated program violates both section 504 and Title II. Discrimination prohibited by these laws..."

Under Section 504 and Title II, "a recipient may not utilize criteria or methods of administration that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability... A public entity also may not impose or imply eligibility criteria to screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully or equally enjoying any service, program or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered."

The OCR statement also indicates, "in general, condition and participation in accelerated classes or programs by qualified students with disabilities on the basis of forfeiture of necessary special education or related aides and services amounts to a denial of FAPE under both part B of the IDEA and Section 504... Participation by a student with a disability in an accelerated class or program generally would be considered part of regular education or the regular classes referenced in the Section 504 and the IDEA regulations. Thus, if a qualified student with a disability requires related aides and services to participate in a regular education class or program, the school can not deny that student the related aides and/or services in an accelerated class or program."

"For example, if the student's IEP or plan under section 504 provides for Braille materials in order to participate in the program, and she enrolls in an advanced history class, then she also must receive Braille materials in that class. In the same, it would be true for other needed aides or services, such as extended time on tests, or the use of computers to take notes."

In addition, although your student may not qualify for eligibility under the special education system, they may qualify for eligibility for accommodations under Section 504 which contains a broader basis for eligibility. Under Section 504, the student is eligible for accommodations if they have any physical or mental impairment which substantially limits a major life activity, including learning. Thus, section 504 is not dependent on the student satisfying a particular disability category contained within the IDEA, such as a specific learning disability.

Can a private school refuse to accommodate a child with a disability?

Our child is going to a private school and has a reading difference. We are doing everything they ask. They have said they cannot accommodate her next year. We said we will do whatever it takes to keep her there. We all love this school. Also, she has a twin sister who is doing well. They are in second grade. Do we have any recourse legal or otherwise under No Child Left Behind?

Your question addresses the decision by the private school that your child attends, that they can not accommodate her and will not allow her to return next year. Under the Americans with Disability Act, private schools or places of public accommodation must refrain from public discrimination and provide "reasonable" accommodations to persons with disabilities. The only exception for private schools is for those that are religiously controlled, in which case the Federal disability rights laws do not apply.

However, in some states and localities, state and local disability rights laws do apply to religiously controlled private schools, which may also be a source of protection. However, the fact that your child has a disability and is entitled to reasonable accommodations it is not something that is an automatic entitlement.

Rather, you must provide documentation of the disability, request formal accommodation, and give the school an opportunity to respond. If they determine that the accommodation is unreasonable, they may refuse it. You have the right to appeal these decisions, both with the school and ultimately in to court if you can not reach agreement.

What services are mandated to help an adult pass the GED Test?

I work for an agency providing workforce readiness training, including preparation for taking a GED. One of our clients has recently come to terms with her reading difficulties. She wants to take her GED and is having difficulty due to what sounds like dyslexia and/or related issues.

Does the legal system mandate the provision of services to adults or what avenues would you suggest to pursue to get her the assistance she needs, now that she is ready and willing to face her difficulties. It seems like she could use a reading specialist to help her learn coping strategies. Thank you for your help with this matter.

Dear David:

Your question addresses the rights that adults with disabilities have in respect to receiving services and/or accommodations in order to be able to successfully participate in taking the GED. You can find excellent information about the process for requesting accommodations on the GED at the exclusive LD Online article, Taking the GED Tests: Requesting Accommodations. Neal Sturomski (2007) provides a detailed guide to the process of seeking accommodations on the GED test.

By law, if an individual is able to document that they have a disability which impacts on their ability to take tests such as the GED, without the benefit of accommodations, they may submit documentation of their disability and the need for accommodations. It is then up to the testing agency whether they will be granted an accommodation. If the accommodation is denied, each agency has an appeal procedure for reconsidering those decisions.

However, your question addresses more broadly whether an adult with a learning disability has the right to receive remedial services prior to taking the test in order that their learning disability can be mitigated to a certain degree that they are successful to taking the test. Unfortunately, the right to special education remedial services are limited to individuals aged 3-21, or who have graduated from high school, whichever comes first.

There is no national policy or funding procedure which would provide for an entitlement to remedial tutoring to address learning disability in an adult, whether previously diagnosed or simply inadequately remediated. Under some circumstances, an individual with disability may qualify for some forms of funding through the Federal Government, open through SSI, or through the state through rehabilitation services or human services programs, which potentially could provide some assistance to these types of remedial services.

Typically, however, funding for adult services is geared to job and life skills, rather than to remediation of reading and writing problems. On the other hand, at least in many major cities, there are not-for-profit organizations that do provide literacy services for those who have reading, writing and math difficulties. You can search for such a program at ProLiteracy Worldwide. These services are offered through the private sector and are not based on a legal entitlement.

Do gifted students have the right to accommodation if needed to perform at full potential?

Does the law insure that all students have the right to valid assessment? The student in mind has a high IQ and achieves at an above average in high school. However, he has a Nonverbal learning disability and a specific reading disability. The school has said that he no longer qualifies for accommodations (extra testing time, having standardized tests read to him) under a 504 Plan because his achievement is not less than his average peers, and test taking is not considered to be a life activity. His standardized test scores are significantly higher with accommodations. Why is this student not entitled under the law to accommodations that will yield valid testing results?

Thanks!

Mary

Your question addresses the legal right to accommodation on testing for persons who due to a diagnosed disability perform below their potential, but still in the average range. As a result of a US Supreme Court decision in the Toyota Auto case, and a number of lower court decisions, the prevailing interpretation of Section 504 and the Americans with Disabilities Act is that a person must be impaired in a major life activity when compared not only to their own potential, or when compared to the group against whom they are being evaluated or competing against, but in relation to the average person in the population as a whole.

Based on this interpretation, it is not enough to demonstrate that an individual is functioning below their potential. In order to qualify as a person with a disability entitled to the protections of Section 504 or the ADA, including test accommodations, the individual would need to demonstrate that their disabilities cause them to function in the relevant area below that of the average person.

In some instances, more detailed testing and/or documentation of functional impairment may support the existence of a disability which causes the person to be impaired in comparison to the average person. In addition, a limited number of courts and other interpretations have identified circumstances where the person’s impairment should be assessed in comparison to the group against whom they are competing, rather than the general population. However, these cases are exceptions, rather than the rule.

Short of Congressional action to correct the prevailing judicial interpretations relying on the “average person” standard, the individual will likely qualify for accommodations only if, based on existing or additional testing and documentation, they can demonstrate some area of impairment that interferes with the specific skill at issue in which the impairment is measured to result in functioning below that of the typical person.

Can a student get twice the amount of time to complete their exams instead of time and a half?

I was recently diagnosed with ADHD and given accommodations of "time-and-a-half" on my law school exams. Unfortunately, I am still having a very difficult time finishing the exams so I requested double-time accommodations. My request was denied and both my Dean and my psychologist says double-time is too extraordinary.

Is this typical? Why is double-time extraordinary? I was under the impression I was being accommodated to help me finish the exams, which I'm sure I could do with double-time. My Dean wants me to pinpoint why I'm not finishing (i.e. due to fact patterns being too long) but it is next to impossible for me to do that, when my processing time and organizational problems are mostly to blame.

I've already paid a lot of money for a thorough reported diagnosis for the school. I don't have the time or money to take this through a court process. Am I asking for too much by requesting double-time?

Your question addresses whether you should be able to receive double time on your law school exams, rather than "time–and-a-half." Unfortunately, it is difficult to clinically and precisely tie the presence of ADHD or a learning disability to the need for a specific amount of additional time on tests. A number of schools and test organizations are tightening their documentation requirements for extra time and particularly for “extra extra” time.

Under the law, the burden is with the person requesting the accommodation to establish the need for the specific accommodation. You should also consult with the clinicians who evaluated you to enlist their help in documenting why 1 ½ time is not sufficient.

You may also want to get your tests to show problems with completion. You may also want to check with your university's disability services officer for help. See question "What can be done when a scholarship is lost because lack of accommodation causes the student to get lower grades?" for additional resources.

Can a child get accommodations when they are performing at their grade level, but are intelligent and determined enough to do much better?

My daughter has ADHD and is highly intelligent. Her testing shows she is capable of performing at two levels above her current grade. She is in an average non-gifted class and is only getting B’s at grade level. She needs testing modifications and other services (pull-outs), but the school says that she does not qualify for these since she is doing well.

Does FAPE require that the school provide modifications and services so that she can achieve at her level of capability? Can you give me any cases that say this?

Thanks,
Lisa

Dear Lisa:

This is a frequent area of controversy between parents and schools. Under the IDEA 2004 amendments, the fact that a student is receiving passing grades does not by itself mean that the child is receiving FAPE. 34 CFR § 300.101(c). Further, under the new rules, the school must address the child’s functional and developmental progress. 34 CFR § 300.304 (b)(1).

In addition, although the criteria for evaluating LD are not directly applicable in relation to qualification or level of services for a child with ADHD, the new LD diagnostic criteria includes assessing whether a student demonstrates patterns of strengths and weaknesses in relation to their own intellectual potential. 34 CFR § 300.309 (a)(2)(ii). This supports an agreement by analogy that the same should be true for a gifted student with ADHD.

Finally, although there are no federal interpretations subsequent to the IDEA 2004 amendments, a prior U.S. Department of Education Policy letter indicated that a child’s eligibility should be assessed in relation to their own potential, not in comparison to other children.

Unfortunately, while your child might otherwise also qualify for accommodations under Section 504, the U.S. Supreme Court Toyota case (Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 122 S. Ct. 681 (2002)) suggests that under the ADA and 504, a person must be impaired in comparison to the general population.

A subsequent contrary view was adopted by the U.S. District Court for the District of Columbia, which indicated that a medical student’s level of functioning should be assessed in comparison to other medical students, rather than the general population Singh v. George Washington University, 368 F.Supp. 2d 58 (2005). This would tend to support a right to accommodations for your daughter.

Can my child receive help for his learning disability if he stays in a private school?

After a series of test done through our public school, my son was diagnosed with processing problems as well as auditory memory problems. He is currently attending a private school and is in first grade. I will be meeting with the public school psychologist and teacher and would like your opinion on what kind of help I should be receiving.

I know private school doesn’t have the same resources as public school and I am hoping they will bring someone in to help him. If they don't, I will need to move to a better school district so I can send him to public school. I have been advised that in such a case, I should retain a lawyer and fight the school to have him properly serviced.

He loves his school and would most likely be devastated that we would have to change schools. He is fully aware that he is struggling and the teacher as well as myself encourage him and tell him we are going to get him the help he needs, so that his self esteem doesn't diminish. Please help!!! I have had so many restless nights worrying.

Sincerely,
Nadine

Private schools have an obligation to provide reasonable accommodations under the ADA, unless the school is religiously controlled. However, it is your obligation to document the presence of the disability and request accommodations.

In addition, you can ask the public school to evaluate him for special ed services and, if eligible, they have the option of offering him some support either at the private school or the public school on a part time basis. In either event, the extra support might be enough to allow him to be successful.

How do you explain to the school that an accommodation is needed, if they say the behavior is caused by a problem with the parents?

My son has an auditory processing disorder and ADHD. After three years of asking the school for help, they saw him as a discipline problem. He is a polite child who goes to church every week. His school tried to send him to a camp for kids exposed to drugs and gangs from broken homes. He told me bad kids go there. I looked it up online and he was right!

Now the school has finally given him a 504 plan, but this year they took away his right to turn in late work. They say it’s a custody issue, and he is not getting his work done at his dad’s, only at my house. Is this legal? To me, it doesn't matter where he lives; he needs to be able to have more time to turn in his work. When he stays with me Thursday through Monday morning, I help him with the stuff that was too hard to do at his dad’s. I also have a tutor for him.

Isn't his school discriminating against his learning disability of ADHD by taking away his right to turn in late work? No matter where he lives, even if he has three homes, he still has learning disabilities! We are going to have another IEP soon. What are my 15-year-old son’s rights? Since they have taken his right to turn in late work, he is now failing every class! Please help us!

Simone

If your child requires an accommodation of no penalty for late work due to his disability, this must be provided regardless of which parent he is living with. However, it sounds like the school is saying the problem is one of supervision at home, not due to his disability.

In some ways that proves your point. He is not able to self-regulate the completion of homework, as evidenced by the difficulty he has when he is with his father. This supports the need for the accommodation, rather than contradicting it.

Can I get accommodations for the General Educational Development Tests?

Please help! I have been trying for literally years to get some sort of high school proficiency, but due to a math learning difference, I flunk that portion of the test every time! I just moved to the area of my preferred college and I am so discouraged because I feel like I will never get to start. I have tried close to everything. Is there any sort of altered version of the test or special help I can receive? Any advice would be greatly appreciated!

Thank you so very much,

Amanda

Dear Amanda:

Your letter indicates that your math disability has prevented you from passing any high school proficiency exam. You should check the LDOnline article on Requesting Accommodations for the GED and other tests.

It is unclear from your question, but if you have a documented learning disability in math, you may be entitled to accommodations on the proficiency exam, which might allow you to pass it. You may also want to consider reaching out to the Disability Services office of the college you are interested in. Although it would be unusual for them to waive the need for a diploma, under some rare circumstances, a small number of colleges may admit students despite the absence of a diploma if they meet all other requirements and have a specific reason such as this.

In addition, if you have met the other requirements for a regular diploma from your high school, you might consider whether there are online or community college math courses which could take to satisfy your need for math credits and get the math credit you need to actually obtain your high school diploma.

Two organizations that have useful information on college accommodations are the HEATH Resource Center and the Association on Higher Education and Disability. In addition, you might want to consult a guide of colleges for students with learning disabilities, such as the K & W Guide to Colleges for Students with LD and ADHD or the Peterson Guide. They have excellent information on admission requirements and accommodations for students who may otherwise be candidates for college, but may not meet all the regular criteria for admission.

When a student needs a quiet work area because of their ADD, do they have a right to get it?

I am a student at a local tech school. My GPA is a 3.55. I have ADHD and a reading disorder. I have a problem getting my work done in class. I was reading something on another Web site saying that a good accommodation for people with ADHD is a quiet work area. Unfortunately, I am not given that at my school. I have approached my teacher many times regarding this issue, but he claims he is unable to help. My previous teacher was accommodating to my disability.

Do I have the right to have a quiet classroom to get my work done? Also, I found out the teacher was taking points off because I was unable to finish my class work in a timely manner and I explained it was due to the many distractions. He basically told me it will only get worse in the work force. Please help!

Lisa

Dear Lisa:

If your school is part of a public elementary or secondary education system, either directly or by contract, they are governed by both the IDEA (Individuals with Disabilities Education Act) and Section 504 of the Rehabilitation Act, both of which provide protections in relation to accommodations for students the school has found eligible for the protections and services of those laws.

If your school is a private school or post-high school program, it may be governed by the Americans with Disabilities Act or Section 504 or both. In each case, if a student can demonstrate, with clinical evaluations, that they have a disability and that the disability substantially interferes with their functioning, they may be eligible for reasonable accommodations. You should check to see if the school has a disability services office or a disability policy, which should explain the procedure for accessing accommodations.

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

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

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

Allison

Dear Allison:

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

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

(ii)Disorders not included. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.” 34 Code of Federal Regulations Sec. 300.8(c)(10)

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

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

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

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

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

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

Do I need a doctor’s diagnosis to get audio books for my daughter?

My 8-year old daughter has been diagnosed with dyslexia by a licensed psychologist, who has referred us to Recording for the Blind and Dyslexic. They specialize in providing recorded books for those with learning disabilities.

I have requested audio textbooks for my daughter. Her school said that a signed form is needed from a medical doctor, not a Ph.D. If a psychologist can diagnose dyslexia and make recommendations, and the Recording for the Blind and Dyslexic accepts psychologists as certifiers, can the public school decline all recommendations and require a medical doctor's signature?

Your question relates to whether a school district can require the authorization of a physician in order to qualify for use of Books on Tape through Recordings for the Blind and Dyslexic. The rules used by Recordings for the Blind apparently are willing to accept the diagnosis made by a psychologist, but the school district is requiring authorization from a physician.

Since physicians are generally not able to diagnose the presence of learning disabilities, the school’s requirement doesn’t seem to make much sense. However, if the school district has a policy requiring a medical evaluation in order to qualify for a particular service, the requirement of a Free Appropriate Public Education requires that the school pay for the evaluation.

Thus, if the school is not willing to accept the psychologist’s diagnosis, but requires that of an MD, the school should pay for the evaluation.

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

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

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

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

How does a high school senior who is on a 504 plan obtain accommodations for the SAT or ACT?

My son is a high-school senior interested in attending one of our local colleges. He is currently on a 504 plan, with accommodations for reading, writing, note and test taking. He recently took his SAT test and didn't score so well on the literary sections, as he wasn't able to finish. I'm wondering if there is a special accommodation that carries over to the SAT or ACT, so he could have more time to process the test. He was diagnosed with ADHD at age 4, has been on and off IEPs throughout his school years. He was dropped from the IEP last year due to his progress and success in his studies. I fought hard to get him on the 504 plan in hopes to have the accommodations when in need. He struggled through school and most subjects all the way until last year, his junior year. Last year he put all his might into his studies, found success and loved it. Continuing his education is something he never showed interest in, as he didn't think he could. His transcript right now is a 2.9%, which is brought down by his 1st two years in high school. He ended last year with a 3.6 and is heading in the same direction this year. How does the 504 plan transfer to higher education and do the accommodations for testing apply?

Thank you.

First, a child with disabilities may qualify for accommodations for the SAT and ACT, but this doesn't happen automatically. Typically, the school applies for accommodations on behalf of those students who have IEPs or 504 plans, but if they don't do this, the parent can do it. Your son can apply for accommodations on the SAT, and if granted, retake the exam with the accommodations. Typically, the accommodations on the SAT and/or ACT should parallel the accommodations the school has been providing, but this is ultimately up to the testing agency to decide. If they refuse a particular accommodation, each testing service has a procedure by which parents can appeal the denial of the requested accommodation. Both the ACT and SAT administrators are covered by the American with Disabilities Act and are required to provide reasonable accommodations for those students who are able to document the presence of a disability that impacts the ability to perform on the test and who require reasonable accommodations. Generally, the testing services require up -to-date evaluations documenting the disability, documenting that the child has an impairment in comparison to the general population and that the student requires accommodations. Generally, there needs to also be a history of disability and a history of special education or 504 eligibility, although this is not an absolute requirement.

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

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

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

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

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

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

Thanks.

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

What do you do when a graduate school refuses to accommodate a student during examinations?

My brother is attending graduate school in pursuit of an MBA. He has a learning disability documented since second grade and within the last year was retested by a psychiatrist and diagnosed as having a learning disability and Attention Deficit Disorder.

The graduate business school that he attends has been fully notified of his disability and accepted him with this understanding. He has received the accommodation of extended time on tests, but he is easily distracted by noise and movement because of his disability and requires a separate room for tests in order to concentrate. The school and Department of Disabilities has refused a separate room for tests.

We are all very worried that his performance is suffering because this school is testing his disability, not his knowledge.

What can we do?

Thank you,
Rachel

First, it may be useful to have updated psychological testing done, particularly if it hasn't been done in the last three years. Although the courts and colleges are more demanding about up-to-date testing in relation to AD/HD, it is important to have up-to-date confirmation of the LD also.

Second, it is important for whatever professionals are evaluating him to a) document the existence of the impairment and the basis for the diagnosis, b) the history of the impairment, c) the impact of the impairment upon his day to day functioning (In other words, even if it may seem obvious, what clinical evidence is there to support the need for a quiet environment), d) what specific recommendations are being made for accommodation and why those are justified by the evaluation data, diagnoses, and prior history, and e) wherever possible, a review of the chronic nature of the specific impairment and a history of having received accommodation for that specific problem in that manner.

Typically, the best place to start in trying to resolve these problems is with the university disability services staff. However, if this has already proven unsuccessful, there are a number of steps that can be taken. First, the University likely has a generic grievance procedure that relates to conflicts between students and faculty over issues, whether or not related to disability. Second, the university likely has a Section 504 or ADA plan, which should include the procedure for requesting, documenting the need for, and receiving accommodations, as well as the criteria for evaluating such requests. It should also have an appeal or grievance procedure separate from the normal university grievance process.

Third, if the internal procedures at the university seem to be unsuccessful, it is sometimes worthwhile to seek direct contact with either the President or Chancellor's Office and/or the University's legal counsel. Sometimes these problems were not known to those key players and if/when they are involved they may have greater motivation and/or authority to resolve the dispute.

If these procedures are unsuccessful, the student could file a charge with US Department of Education's Office for Civil Rights based on the school's violation of Section 504 or a complaint with the U.S. Department of Justice, for an alleged violation of the ADA. In general, OCR has stricter timelines for resolving these matters than does the DOJ.

Finally, if there is either an urgent need for action or the above steps were unsuccessful, the student can sue in federal court for violations of the ADA or Section 504. Injunctive relief can be obtained in suits under the ADA, while money damages and injunctive relief can be obtained under Section 504.

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

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

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

Thank you!
Robin

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

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

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

Can the school terminate a 504 plan without reevaluating the student?

I am a special education teacher in Western MA and a parent of a 17-year old who has been variously clinically diagnosed with PDD-NOS, NVLD, PTSD-GIFTED, P. ANXIETY. She was hospitalized for about 2 1/2 months at the end of 2004. Early in 2005, she was put on a 504 plan. Her hospitalization was the only reason for her getting the 504.

My husband and I recently received a "Section 504 Termination Notice." Our daughter had a complete neuropsychological evaluation in June of 2005. At that time she was diagnosed PTSD-gifted and not NVLD, one of the diagnoses she had during hospitalization.

Perhaps she doesn't need a 504 anymore, but the lacking evaluation and procedural pieces leave us wondering and concerned about her appropriate education and preparation for college, particularly at a time in her life when she is looking outside for support and guidance. We have refused to sign the termination notice and have informed the school that our daughter is about to turn 18 in February. We are advising that she speak with an advocate before she signs anything. Doesn't there have to be an evaluation before any change of the 504? What are the steps that my husband and I can take?

Please help,
Ingrid

You are interested in whether a school can unilaterally terminate a 504 plan without a reevaluation. The answer is NO. The 504 regulations are clear that a 504 plan cannot be changed or terminated without conducting a new evaluation and without convening a 504 meeting, with your participation, to make the decision. Further, with or without an evaluation, the school has to have reasons for why they are recommending termination and have to share those reasons with you. If you disagree, you have the right to request a Section 504 hearing to challenge the termination decision and the right to file a complaint with US Department of Education's Office for Civil Rights.

What do you do if a college professor denies you reasonable accommodation?

I am a 45 year old male who had to go back to school because of an injury in the oil field. I was diagnosed as having ADHD by a psychiatrist. The junior college I am attending denied the accommodations I requested. I have talked to the college dean. She assured me that next year the accommodations will be reviewed by the instructor who denied them.

I lost a year because of this instructor, and I am not too sure she is actually going to assist me as far as agreeing to the accommodations on the 504 law.

Sir, can you tell me what to do about this? I am half way done on an associate's degree and I encounter an instructor who tells me my disability is an excuse to slack off from working hard like everybody else.

Thank you,
Johnny

You have apparently been denied accommodations from a specific instructor in the course of your pursuit of an AA degree. You are to be commended for your persistence under the circumstances you described. As a preliminary matter, you should make sure that any accommodations you are entitled to are written into a formal accommodations plan approved by the community college. If the professor doesn't follow the plan, you may use the college's standard grievance procedure, you may use the college's special grievance procedure for 504 and ADA complaints, or you may file a complaint with the US Department of Education Office for Civil Rights for a violation of Section 504.

Unfortunately, there is nothing that can get you back the time you have already lost, but you may want to ask that the community college arrange a meeting with the administration, the instructor and yourself, prior to the start of the new class to make sure that the instructor understands his/her obligations to provide the accommodation. You may also want to approach the college about whether a) there is some way to get credit for the class in which you were denied accommodations without having to fully retake it (some form of independent study or the like, preferably supervised by a different faculty member) and b) whether the extra fees for having to retake the course should be waived.

For information on the right to accommodations at the college level, go to www.heath.gwu.edu or www.ahead.org.

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

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

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

Thanks
Kelly

Dear Kelly:

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

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

What is the interaction between special education and IDEA?

My ADHD son is now 15 and in the 9th grade. He attends a school of choice in Florida. His school has higher academic standards than a normal public school and he has managed to survive until this year. Now he is being kicked out.

In second grade he scored a 128 on his IQ test and has always scored in the 87-96 percentile of the nation on his standardized tests. The school has admitted that he is smart enough to be at this public school, but he chooses not to do the work and that is the reason he has now failed 3 out of 7 classes. I have repeatedly stated that I wanted a 504 plan for my son and that has never been an option she has given us. For the past 3 years her only solution has been that "we should remove our son from this school and place him in a regular public school where the requirements would be less for him and they would be able to meet whatever needs he has."

When the 504 plan was written, our input was requested with the understanding that the school could not modify his academic requirements. We have never asked that because we believe, as he does, that he can do the work and he needs the challenge to remain stimulated. Our suggestions were extra time on tests when needed, a set of all books and workbooks be kept at home. We offered to cover the cost of this and asked that his teachers either e-mail us daily, weekly or post upcoming assignments on their web site so we could keep him on track at home. The major cause of his failing grades are due to homework not being done or completed. Not one of our recommendations were implemented.

The solutions they gave are to remind him of assignments on the day they are due and review the late work policy of the class. Another solution they implemented was weekly progress reports to let us know what he did not do. This is not a solution if the teacher will not accept late work. They have told us that "he does not want to do the work because if he did then he would get his act together and just do it". I have explained that the person responsible for identifying his needs and helping him has not done her job and that is partially responsible for his failure, but they do not care and now he must leave the school. They even took away his extra time on tests with the justification that the teachers felt he did not need it. Can they do this? Can they make him leave this school of his choice?

What can I do about this? Any help you can give me will be greatly appreciated. My husband and I are desperate to help him and can not do it alone. He has never been a problem student except where his ADHD is concerned (forgetful, looses homework, trouble completing tasks in a timely manor, etc.) and is now frustrated and beginning to show signs of depression over failing.

Thank you ,
A concerned parent

Dear Concerned Parent,
Your question, like several others addresses above, raises the issue of the rights of a child who is gifted but has a disability. It also raises the question of the interaction of special education with section 504 protections.

For information on the rights of a child who is gifted, see prior answers. With respect to the interaction of special education and Section 504, schools may not choose to use one law or the other law exclusively. Both the IDEA and Section 504 apply to all public schools. As such, if a child qualifies for either law, they are entitled to the protections of that law.

A school can not pigeon-hole a child into a particular disability category and limit the provision of services for accommodation based on the child's disability category or the categorical nature of the program in which they have been placed. Thus, the child that has been labeled "other health impaired", may be a starting place in determining which services and accommodations that the child has eligibility for, but should not limit the services or accommodations that the child receives.

All services and accommodations, under both special education and section 504, are supposed to be determined based on the individual and unique needs of the child, not based on the available program. Thus, for your purposes, the choice should not have to be to receive special education services or Section 504 services. Instead, it should be based on a determination of what would be best for the child's needs under either of these laws.

Does a child have the right to an accommodation if they transfer to another school to take a particular class?

My son is 15 years old and in the 9th grade. He entered the gifted and talented program in elementary school. Between 4th and 5th grade, I noticed a significant lowering of his standardized test scores, and a difference between what he thinks and what he actually writes down on paper. I requested further testing, and he was found to be eligible for an IEP based on a specific perceptual processing disorder, that interferes with his reading, writing and spelling. He seemed better through the 7th and 8th grade, and was taken off the IEP.

Now he is in 9th grade. He taking Japanese as his foreign language, and he is failing. The exams are oral His teacher reads things out loud, and he has to write the word and meaning. He has trouble hearing the word amongst the sentence. I thought he could retake the course if he failed He thought that if he took it again, he would definitely do better, because the characters, vocabulary, and sentence structure would be familiar.

I was told by the school personnel that he would not be allowed to retake the course, because I have him on an interdistrict transfer specifically so he can take Japanese (it is not offered in our school district). Yet, they would allow their own district students to retake it. In fact, they said that they expect interdistrict transfer students to do well, and that my son would be kicked out of the school if he did not make a C, so he could go to the second year. Is this legal? What can I do? I don't think he should go to the second year without mastering the 1st. He should have the right to learn the language. Also they said that since I took him off of the IEP at the end of 7th grade, that he no longer has a disability. I don't agree. I think it can reappear as the subject matter becomes more complex and is unfamiliar.

Your question involves the right to accommodations in relation to a permissive inter-district transfer program. Specifically, you were wondering about the right of accommodations in relation to your child taking Japanese. The key in your situation seems to be that the school will allow accommodations for children who are within the district, but will not allow for accommodations who are an inter-district transfer student.

The nature of the inter-district transfer program complicates matters, as it means that your child is not legally entitled to participate in the program. However, once your child is admitted to the program, there is a good argument that Section 504 would require that they be provided accommodations within the program as they are otherwise qualified to participate. Since the other students were given the same accommodations, it would be difficult for the school to argue that the accommodation itself would represent a fundamental change to the program or an undue burden.

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.

Do students qualify for 504 plans if they are home schooled?

I am an Educational Advocate with the Learning Disabilities Association in Upstate NY. I am working with a family who is home schooling their daughter. Recently their home school district informed the family that their daughter no longer qualified for a 504 plan. The reason they stated that she was no longer "qualified" was because she was a home instruction student and therefore no longer entitled to services. The district representative said that this information came directly from her State Education Representative in Batavia, NY. Could you clarify this issue for me? Thank you in advance for your assistance.

Pam

Dear Amy
Your questions addresses whether a child can be disqualified from receiving a Section 504 plan because the child is being home schooled. I suspect that there is no legal interpretation with respect to this question. However, because the child presumably may be entitled to receive services through an IDEA plan, and because the child is entitled to be evaluated through the child find requirements of IDEA, it would seem reasonable that the child should also be entitled to potential protection through a Section 504 plan. However, neither Section 504 nor its regulations describe any specific responsibility of public schools to provide actual services to a child who is not enrolled. As such, the application of 504 may be contingent to the child receiving some type of support services through IDEA.

How can you receive accommodations on standardized tests for graduate school?

I received very late diagnoses of a Nonverbal LD and bipolar at ages 17 and 19. Both disorders are well-documented. My therapist of the last few years is a PhD in Ed Psych. She helped me apply and get funding from the DVR, which financed a good deal of college.

This semester I graduate with a BA and 3.7 from one of the best public universities in the country. I would love to be in grad school, with law being one of my first choices. The problem is I'm a bad standardized test-taker, even with accommodations. My Nonverbal LD impacts math and quantitative skills, so the logic games section would not produce good results.

I am troubled that many admissions policies do not allow for detailed consideration of how an LD might affect test results. I've read that LSAT scores are the biggest factor. I don't care about the prestige of the school, just that it's affordable and ABA-approved. A second plan is to get a PhD in a law-related field. I just think LD students should have a fair chance at law school; a low LSAT shouldn't be the eliminating factor. I plan to work as a legal assistant for a couple years before applying. Any thoughts would be great. I'm sure many people have the same question. Thanks for your help.

Best wishes,
College Student

Dear College Student:
Your question asks about the difficulty of obtaining accommodations on a graduate exam such as the LSAT for a late diagnosed learning disability. All of the test administration organizations are tightening up on their willingness to grant accommodations to students with learning disabilities, especially those who are late diagnosed. It is important to provide them with as much documentation as possible indicating the following:

  1. Information concerning impairment in relation to the general population as well as in relation to the population that you are competing against;
  2. Information documenting the practical effect of the impairment earlier in your life, even if you were late diagnosed;
  3. Information that you received accommodations in college or elsewhere, even if not earlier in life;
  4. Strong statements from diagnosticians indicating the correlation of the disability to your performance, as well as the correlation of the proposed accommodation to your disability. In other words, unless there is some indication that this specific accommodation that you are seeking actually provides a meaningful support to you in relation to the diagnosed disability, you will also have trouble receiving the accommodations.

What can a parent do when the school refuses to provide services for their child?

My daughter was diagnosed with Auditory Processing Disorder two years ago. I asked the school to test her and they did not so I took her myself and our insurance company paid for it. Since then it has been a nightmare to try and get services for her. They just seem to totally ignore the law. We made a list of accommodations for her, which I have to be sure are followed through with constantly. They are not doing any speech therapy or anything with her to help her learn new strategies to cope with her disability.

A few weeks ago I told them I wanted a 504 IEP to ensure she gets the accommodations she is entitled to and to also receive some help from the Speech Therapist or LD teacher. (They let her take the SOL test in the regular classroom; the accommodation was that she would be in a small, less distracting group – that didn't happen.) I have heard nothing yet. They told me I would have to go through Child Study again, which is a nightmare in itself. I said whatever. Haven't heard anything. These people are totally frustrating in that they do not identify anyone as Special Education and do not provide the services needed. I'm not the only parent who is frustrated here. What can we do?

Sherry
Salem, VA

Dear Sherry,

I am a little unclear from your question whether the school is currently providing a plan under Section 504 or IDEA. In some places, the schools even use IDEA procedures to implement Section 504 plans and services.

A parent may request an IEP or 504 meeting at any time. Schools should honor all reasonable requests for such meetings and should convene a meeting in a timely (undefined) period after the request. When there are problems with implementation, a short term strategy is often to try to build into the plan a series of documentation, communication and review measures designed to keep track of who is providing the service, when it is being provided and what is being done. By having this information communicated among the staff and to the parents, it puts everyone in the position to know whether what has being agreed to is actually being carried out.

It is also sometimes necessary to meet with staff and/or administration to discuss the problems and to seek ways to resolve the problem in a non-adversarial manner. However, where the plan does indicate a need for specific services which are not being provided for a prolonged period of time, there may be a basis for "compensatory education" to make up for the lost time. In most places, compensatory services are only provided in response to a parent's complaint and/or initiating mediation or due process proceedings.

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

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

For example:

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

You get the picture…

Sara
Seattle, WA

Dear Sara,

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

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

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

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

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

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

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

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

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

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

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?

Susan
Garden City, KS

Dear Susan,

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

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

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

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

Does the school have to make accommodations in advanced classes as well as regular classes?

My daughter is in tenth grade. She is dyslexic and learning disabled in mathematics. She is on an IEP and has received "class within a class" services for most of her core (non-elective) classes. She is planning to go to college and study nursing. She needs to take higher level mathematics (Algebra I and above) but the school will not provide "class within a class" services in "college track" courses. She made it through Algebra I with difficulty, but passed. We requested services for Geometry and the school refused.

I feel that by only offering support services in low level courses, the school discriminates against disabled students by depriving them of the assistance they need to complete college entrance requirements. If there any leverage we can apply to get services in the college track courses?

Diane

Dear Diane,

Your question addresses whether you have a right to require schools to provide accommodations and support services with respect to higher level classes, as well as lower level classes. This is a somewhat complicated situation. However, the key point is that every child has a right to individualized education based on their unique needs.

Any system that provides for categorical services based exclusively on level of functioning is suspect – schools that provide remediation only to a certain course level, but refuse to provide remediation when a child reaches the higher level courses would be potentially guilty of categorical discrimination based on disability status. IDEA requires an individualized education program without limitation on the child's grade level or the course content. Similarly, Section 504 prohibits discrimination based on disability category or on the nature and extent of the child's disability.

On the other hand, you should be aware that entitlement to services does not necessarily provide entitlement to the specific model or type of service that you were describing. For example, the school has apparently opted to provide services through a "course within a course" model. There is nothing legally to require the school to provide that form of service, as long as they address the individual needs of the particular student.

Can a child qualify for modifications under Section 504 if he is passing his classes?

Dear Mr. Cohen,

My husband and I just came back from our son's annual ARD meeting. In third grade, following testing, he qualified for special education services due to dyslexia, a LD in written and oral expression, and ADHD. Now in the fifth grade, retesting shows that he no longer qualifies for special ed services (although reading skills remain below normal) and he has been dismissed.

I am requesting 504 accommodations (duplicate books for at home, written assignments from his teachers, copies of class notes, extended time for class work and test taking, having the state assessment math test read to him, etc). The school is telling us that he may not qualify for a 504 because his grades are all passing and he passed the standardized assessment test last year without accommodations. My husband and I feel the reason he does fine at school is because we make sure all homework is complete and correct and because of all the re-dos he is allowed to do.

I have done quite a bit of reading on 504s and have not seen anywhere that a student has to be failing to qualify for a 504. Does a dyslexic, LD, ADHD student who is of average to above average intelligence and compensates for his disabilities well have to be failing to qualify for a 504?

Judy

Dear Judy:

Your question addresses whether a child may be eligible for a Section 504 Plan if he or she is getting passing grades. There is nothing in Section 504 which limits eligibility based on the receipt of passing grades. In parallel to the interpretation of IDEA, passing grades are only one indicator of whether a child is functioning appropriately at school. There are a variety of other measures that may indicate that a child's disability is adversely affecting school functioning, even if the child is getting passing grades. Further, as you know, grades are often very subjective and do not necessarily reflect actual mastery of a particular topic.

On the other hand, if available evidence, including, but not limited to, passing grades, shows that the child is functioning well, the child may not be eligible for services, as there does have to be a substantial impact on activities such as learning. Finally, you may wish to review my answer to Lisa, in the prior question and answer, as the new IDEA contains provisions which broaden the scope based on eligibility of educational functioning to include developmental and functional impairment, as well as academic impairment. This provides opportunities for eligibility and services under IDEA, which may have been more ambiguous in the past.

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.

Can the public school system refuse to evaluate a child for dyslexia because the child goes to private school?

Dear Mr. Cohen,

My son receives speech services from the public school where we live in Texas, but attends a private school. He is showing signs of dyslexia and the public school refuses to test him for dyslexia or offer services for it. (The private school does not have dyslexia services at all.) They would, however, do more special education testing. Is this legal under Section 504? Can they really deny dyslexia testing? I believe he is considered a district student by the fact that he receives services already. What is your take on this?

Thank you very much,

Melinda

Dear Melinda,

Under the IDEA, public schools have an obligation to engage in child find with respect to all students who reside in their school district, even students who are enrolled in private schools. If a student is suspected of having dyslexia, the public school is obligated to evaluate that student, whether or not they end up providing services to them. The fact that the child attends a private school does not release the public school from its obligation to conduct an evaluation for special education services. Section 504 is less relevant to this issue than the IDEA, as the school district has an explicit obligation under Child Find to identify all children suspected of having disabilities.