Legal Briefs from Matt Cohen

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

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.

(July 2008)

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

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.

(January 2008)

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

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.

(November 2007)

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

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.

(November 2007)

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

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.

(October 2007)

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

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.

(September 2007)

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?

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.

(August 2007)

Can I get accommodations for the General Educational Development Tests?

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.

(July 2007)

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

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.

(July 2007)

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

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.

(June 2007)

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

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.

(May 2007)

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

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.

(May 2007)

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

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.

(April 2007)

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

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.

(April 2007)

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

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.

(March 2007)

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?

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.

(March 2007)

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

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.

(March 2007)

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

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.

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

(March 2007)

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

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.

(October 2006)

What is the interaction between special education and IDEA?

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.

(October 2006)

For more information on this topic, please visit the Accommodations & Modifications section in LD InDepth.