Legal Briefs from Matt Cohen

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.