Legal Briefs from Matt Cohen

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

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.

(June 2009)

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

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.

(May 2009)

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

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.

(May 2009)

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

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.

(May 2009)

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

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.

(May 2009)

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

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.

(October 2008)

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

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.

(October 2008)

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

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.

(October 2008)

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

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.

(September 2008)

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

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.

(August 2008)

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)

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