Legal Briefs from Matt Cohen

What obligation does the school system have to evaluate a child who was diagnosed privately with ADD?

Dear Terry:
It sounds like you and your child have been mistreated by the school system. Under both the special education system and section 504, the school district has an obligation to identify and evaluate children who are suspected of having a disability who reside within the school district. Under the special education system, this legal obligation is called Child Find. This puts an affirmative obligation on the school district to identify children who may have a disability and to evaluate them to determine if in fact they have a disability (of course after having obtained parental consent).

When a child has been privately evaluated and diagnosed with a disability, it is especially important that the school follow through with conducting an evaluation to determine if the child has a disability for purposes of special education or section 504 services. Even if a child is determined not to meet the criteria for disability under the special education system, they should be evaluated to determine if they meet the criteria for protection under Section 504, which has broader eligibility criteria.

When a school district has failed to conduct appropriate child find efforts, the parent may be forced to request a due process hearing to force the school district to identify your child as having a disability. If the child has been deprived of appropriate services for a period of time, the child may be entitled to receive compensatory educational services to make up for the lost time.

(October 2006)

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

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.

(October 2006)

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

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.

(October 2006)

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

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.

(February 2006)

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

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.

(February 2006)

What are your rights when the school makes some modifications for your child, but will not say that the child has a disability?

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.

(February 2006)

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

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.

(February 2006)

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

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.

(February 2006)

What to do when you find out that your child has the right to be evaluated for a disability years after they have started having problems in school?

Dear AM,

While it is generally wise to inform the school of any outside diagnoses, including ADHD, their obligation to evaluate is not triggered by the provision of a diagnosis by an outside clinician, but rather by a referral for evaluation, coupled with a determination that there is reason to suspect a disability is present. Since you asked about an evaluation, you should have been informed of the referral process, which would have triggered the timelines for completion of evaluations. If the school decided not to conduct an evaluation, they were legally required to inform you of their decision and that you had the right to request a due process hearing to challenge the denial of the evaluation.

However, if you did not put your request in writing, you should consider doing so immediately, including reference to the prior requests that you made orally. Further, the ADHD by itself might have been sufficient to cause your child's academic problems. If she is having problems and ADHD was suspected, the school should have conducted an evaluation to determine if she had ADHD and whether it was adversely affecting her school performance.

As to filing a complaint against the school district, you have several options. First, you referenced filing a complaint for violation of Section 504. You can do this by going to the website of the US Department of Education, Office for Civil Rights.

You also have a right to request a due process hearing against the school district for violating Section 504. You can do this by sending a request for a hearing to the school superintendent and special education director. You should also request a copy of the district's Section 504 and ADA policies (these are public records) and for the district to identify the 504 coordinator.

Finally, because your child may be eligible for special education under IDEA, you could also file a complaint with the state education agency or file a request for a due process hearing with the school district. However, if it is possible to work things out with the school district without an adversarial procedure, that is preferable.

(February 2006)

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

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.

(February 2006)

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