Legal Briefs from Matt Cohen
The following are past questions and answers from Matt Cohen on this topic.
My 14-year-old son has been diagnosed with Asperger's, ADHD, and bipolar disorder. He has math and science teachers that have no special education training. And he struggles in both these classes — the teaching methods do not engage him. This is our second year trying to suggest new methods to the teachers, and they do not seem to be successful. Last year I paid for a tutor and was able to demonstrate to the school that my son could be successful if taught correctly.
Any advice on how to handle this teacher skill barrier with the school? I hate to lose another year of math and science due to inadequate special ed. skills.
The schools are required to use peer-reviewed, scientifically-based educational programs to the extent possible. If the math and science programs your son is being provided do not seem to be working, the first thing to ask the school is whether the program is a research-based, systematic instructional program designed to address his specific disability. If they cannot provide research to support its effectiveness and it doesn't seem to be working, they should be investigating and implementing other programs that are research-based and appropriate. You may benefit from an outside clinical evaluation by a psychologist knowledgeable about research-based math programs in order to learn what methods should be used with your son. For information on peer-reviewed, scientifically-based instructional programs, check the What Works Clearinghouse.
I have twin daughters that are in second grade. Both have a vision impairment called nystagmus. Both of my children see 20/40. One of my girls can see just about everything but has a little trouble seeing things written on the board. Because of this they are wanting to put both my children in special ed., and the teacher is harassing me to sign them into the special ed. program. Is there anything that I can do?
There are a wide variety of assistive technology systems and/or accommodations that can help students with vision impairments and may be sufficient to allow your daughters to function well in a regular education classroom. Unless there are important educational reasons for either of them to be in a special education class, difficulty seeing the black board does not seem like a reasonable basis for that recommendation.
You should ask for an assistive technology evaluation to help identify visual aides that could be used in the classroom, along with accommodations, such as having the teacher provide your daughters paper copies of what is being written on the board or other means to allow them to see what is being done.
I have a 13-year-old daughter who is in the eighth grade and suffers from the following: OCD, Pervasive Developmental Disorder (autistic spectrum), avoidant and dependent personality, and psychosocial environmental problems. I was notified by the seventh grade counselor last year that they feel that my daughter needed to most likely be put on an IEP or 504 plan. So after getting her re-evaluated with the above disorders, I went to the eighth grade counselor to discuss what the process would be to get something started for her. I tried in elementary school to get some type of plan in place for her, but the school just brushed me and my daughter aside.
The eighth grade counselor keeps stating that my daughter may qualify for 504 but not IEP because her grades are good. But since the counselor is new to the school, she needs to find out from the seventh grade teachers why she was dropped a level in seventh grade (college prep to lower college prep with assistance). She is not a disruptive person in school and keeps to herself and does all her school work at her own pace (not the pace the teachers would like). Her grades are As and Bs, but she suffers severely on time-managed tests such as state tests, etc. I do know that her OCD prohibits her from moving faster. What should I do?
Schools are required to consider but are not obligated to follow the findings and recommendations of outside evaluators, so your private report is helpful but does not automatically entitle your daughter to eligibility. More importantly, the IDEA provides that schools must address all disabilities that impact the child's functioning at school, both academically, developmentally, and functionally.
Even though she is academically successful, that is not a basis by itself for denying eligibility if she has other problems that are impacting her school functioning (and her academics as well). From what you describe, it would appear that her disabilities are impacting her functioning in a variety of ways and may be causing sufficient difficulties for her that she could qualify for an IEP. Even if she didn't qualify for an IEP, there would be an even stronger argument for her eligibility for a 504 plan.
I am the manager of an office of disabilities at a community college. We have previously allowed students with dyslexia to have the placement test read via a tape recorder. This has now been challenged. I believe this is an appropriate accommodation under ADA/504. What are your thoughts?
I believe that if a student has dyslexia and has received test accommodations in the past, it is appropriate for the placement test to provide comparable accommodations.
The school psychologist at my university has recently diagnosed me with ADHD. However, I've already graduated with a bad GPA. My passion is law, and I'm applying to law school after I take the LSAT in October. I looked into getting special treatment for the LSAT because it's super hard for me not to reread every question three or four times. They said that we need a diagnosis from childhood.
I'm bilingual and an immigrant; and as I was growing up, I was the quiet type that would day dream. No one picked up on my ADHD, and I always denied it because I thought I was the same as everyone else. Now I realize that with a little help I could have been a straight A student, and I'm scared it's too late. Is there anything I can do to convince the LSAT administrators to give me some extra time?
Your story is very heartbreaking. You have persevered and struggled to succeed while coping with your disability in silence. The absence of earlier formal diagnosis and accommodation will make it much harder to obtain recognition as a person with a disability and obtain accommodations now.
However, the more that you and your current clinicians can both provide robust evidence of the current accuracy of the diagnosis and impact of the disability and go back through your life history to find evidence of its manifestations while you were growing up, as well as informal strategies or supports that you or others developed to help you to function, the more chance there will be to support your need for accommodations. In particular, you should have your evaluator pay special attention to your testing behavior, to how you function with timed tests, with tests that require quick response time, and in tests that measure attention and processing. It will be an uphill effort but isn't without the possibility of success.
I am a 34-year-old grad school student. I am learning disabled. The only IEP I could find was from 1990 when I was in seventh grade. The university told me my IEP has to be recent to grant me accommodations. I was in special ed. through high school. I have severe learning disabilities. Is this legal to deny me?
Schools should not require special education eligibility as an absolute prerequisite to present accommodations, though the presence of recent and historical accommodations, whether through an IEP or a 504 plan, is important evidence of the ongoing need for the accommodation. In the absence of actual physical evidence of the IEPs you had at the end of high school, you should try to find other ways to document that you received special education.
If you haven't already, you should certainly contact your high school to see what records they have of your special education status. Even if there is no official record, you should try to locate special education teachers that can provide written documentation of your special education involvement. Letters from your parents and others that will document this would also be helpful in providing supplementary information in place of the official school IEP records. If you had private evaluations along the way, those may also contain references to your special education history, as may notations in your report cards or other progress reports.
I have been a homebound teacher for a family with severe chemical sensitivity issues for the past fifteen years. We live in Florida in Volusia County. One of the children is a high school student with a diagnosis of autism. The other two children have processing and fine and gross motor problems that have been diagnosed by Easter Seals and testing by the school system. I have been working with them one on one, two times a week for two hours each session. They have always had an IEP and special testing accommodations. This year our school district has decided to use an online program, K12 Inc.
The mother went to an IEP meeting last week and was told that all three children are to use the computer program and no one will be sent to the home to work with them individually. The child with autism was on track to graduate with the extra math help he is receiving. The mother has a sick husband and is trying to support the family by working part-time from home. None of the children will be able to do the computer program without the mother's help. My question is … is this an appropriate education and is there anything the mother can do to get these children some help?
You are to be commended for your concern about the education and welfare of these students and their family. It appears that the school is making major changes to each child's program and may be doing so for financial reasons rather than because of what is appropriate for each child. The parent has the right to request a due process hearing on behalf of each child to challenge the school's decision. If she is successful in the due process proceedings, the school would have to reinstate the prior services. She sounds like she needs a lot of advocacy help. I would suggest that you check the National Disability Rights Network website for the name of the federally funded advocacy organization in your state.
My child has ADHD and a formal 504 plan. The plan states that she is allowed extra time on testing and the use of a calculator for math class. The college that she is about to attend has refused to allow a calculator in class and for testing. Is this legal?
Many people assume that if they or their child have been recognized as having a disability and had IEP or Section 504 services in high school that they are automatically entitled to the same services in college. This is not correct. Students in college must 1) inform the college that they have a disability and require reasonable accommodations and 2) provide clinical support for the existence of the disability and the need for accommodations.
That the student was recognized as having a disability and received accommodations in high school is useful documentation for the college to consider but does not require the college to agree. On the other hand, when there are no prior services, it's even harder to obtain accommodations. Colleges may also require that the student provide current clinical testing to show that the disability is still present and evidence of substantial limits to at least one major life activity, related to the activity for which accommodation is sought.
If the student presents all this information and the college refuses, the student has various appeal rights under both the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The student should be able to obtain information about the school's non-discrimination policy in relation to disability from the school's disability services office or from the college handbook. Useful information on the right to college accommodations can also be found from the Association on Higher Education and Disability and the U.S. Department of Education Office for Civil Rights.
My son was diagnosed with PDD-NOS (Pervasive Developmental Disorder — Not Otherwise Specified) when he was 5. He is now 8 and has been re-diagnosed with ADHD/ODD (oppositional defiant disorder). The school keeps telling us that his IEP is no longer valid because he does not "need" a specialized program since all of his accommodations can fall under a 504 plan. We've had a bit of a contentious relationship with this school, and things that we have asked for (e.g., an FBA-functional behavioral assessment) have not been done. The school keeps pushing for a 504, but I am worried that going to a 504 will eliminate, or limit, our rights to request special accommodations. I don't know if a 504 plan could be adequately individualized for my son. I'm wondering what my rights are in this situation and wondering what steps I should take to keep my child on their IEP.
First, there are many situations where a student may qualify for either an IEP or a Section 504 plan. The decision as to which should be used should be made on an individualized basis. Further, often, children with PDD-NOS and/or ADHD do need an IEP, even if much of the intervention is based on accommodations. Certainly, children with these diagnoses have skills deficits that need remediation, justifying having goals, objectives and specific strategies or interventions to assist them in developing these skills. While schools may use the IEP format to write a 504 plan, most schools do not do so. Rather, their 504 plans are often focused on accommodations and not on plans for how the child will develop needed skills and how the child's progress will be monitored.
If your child is already on an IEP, the school must convene a meeting to decide to terminate special education eligibility. If you request a due process hearing immediately after this decision, the school must maintain your child's eligibility and previously provided services until the issue is resolved.
We had an IEP for a 6-year-old child who had not yet attended kindergarten. The child was found eligible for special education services, and we held an IEP meeting. During the meeting, it was determined by all professionals on the team that the child should be enrolled in kindergarten with an aid, despite his age. The parents were not given an IEP report but were told to come in to school the next day to enroll the child in kindergarten. Parents were given an IEP the next day, but it did not mention grade placement. Subsequently, the parents were told that the child could not be enrolled in kindergarten because he was 6 years old and had to enroll in first grade, regardless of his "special circumstances".
I'm wondering… is there a way the school can change the determination of the IEP without the parents, without breaking the law? And is there any precedent in past cases of a 6 year old being placed in kindergarten rather than 1st grade?
First, generally, the issue of promotion and grade level placement is not automatically viewed as an IEP issue by most school districts. You should check your state's laws to see if it addresses minimum/maximum ages for participation in kindergarten and enrollment in first grade. Sometimes, this issue is addressed in district policy, rather than state law. If this is the case, the IEP more clearly supercedes any limiting policy. In your situation, the problem is further complicated because the staff apparently supported placement in kindergarten, but the person writing the IEP document didn't write that in it.
Although it is legally permissible to change any IEP outside of the IEP meeting, this can only be done in writing and with mutual consent of the parents and the school staff. However, because the grade level issue was not written into the IEP, the school administration will likely take the position that it is an administrative issue and wasn't even addressed in the IEP. It would be helpful for you if the participating staff is willing to confirm that they agreed that the child should be in kindergarten, but it may be difficult to get that documented in writing. In all likelihood, the parents will need knowledgeable legal help to assess the situation and determine their legal position. In either event, getting documentation of what the team actually agreed to, versus what was written subsequently, would be very important.
Our son, who is now about 13 years old, is not progressing in school. We think he has a learning disability but have been unable to obtain any educational testing or assessment data from psychologists. We currently live with our son and other children in Pakistan and have found that there is not a system for working with children with LD here. However, our son is a U.S. citizen, so we are planning to have him move back to the states with family.
We are wondering how we get the initial referral to begin the special education process at his new school if he does not yet live in the U.S. Is this possible?
When a child is entering a new school system, the parents or guardian may immediately request an evaluation for special education. However, the public school is not automatically required to conduct an evaluation. The more information that can be provided to the school to support the need for the evaluation, the more likely they are to agree to the evaluation. This is especially important in situations such as yours, as schools are not as likely to conduct an evaluation when there is no prior history of difficulty in an American public school.
One important step to improve the likelihood that the school will agree to an evaluation is to obtain a comprehensive independent evaluation to document your child's problems. The school is required to consider this evaluation but is not required to accept its findings. As a result of the new requirement that schools consider whether inadequate instruction may be the cause of the learning problem, schools are now far more likely to defer evaluation until after the student has received a period of intensive specialized intervention in regular education (Response to Intervention — RTI). This makes it harder to secure immediate evaluation in situations such as yours and makes any evidence of prior problems and unsuccessful efforts to address these problems especially important.
My daughter has a learning disability and mental retardation, and she has been diagnosed with major depression disorder, anxiety, and a panic disorder. She misses a lot of school due to her depression and was hospitalized twice last year for it. Because of her absences, her special education teacher will not let her attend the Special Olympics this year. In addition, her teacher will not let her make up the work she missed, although most were excused absences. What rights do I have in this situation?
Your question presents two distinct problems related to your child's frequent absence from school. In relation to both of them, a starting place would be to make sure that you have medical documentation of the need for her to miss school, whether for physical or emotional reasons or both. You might need a note from both a mental health professional and her primary care physician, but it is important to establish that the absences are bona fide and related to her emotional disorder and/or a physical illness.
Assuming you can document this, her absence should not be a basis for exclusion from the Special Olympics. Unless her conditions pose a health risk to her participation, it is arguably discriminatory to use her absence as a basis for exclusion. You may want to contact the Special Olympics to check their rules for eligibility, as I suspect that the teacher is making her own decision rather than following the organization's policies.
With respect to the equally or more important issue of the refusal to allow her to make up work, this should be addressed in two ways. First, you should ask for a copy of the school's policy on medical absence. If a child, with or without a disability, is absent from school for legitimate medical reasons, most schools permit the students to make up the work. Second, you should seek a specific accommodation in her IEP that provides for a procedure for her to make up the work. If it is in the IEP, the teacher is legally required to follow it.
Finally, if she is absent for prolonged periods of time, most states have a procedure to address prolonged medical absence. With medical certification, if she is absent for the period provided by state law (generally two or three weeks) and there is medical documentation that her absence will extend beyond that period, the child is entitled to some form of home tutoring from the school system at district expense. Typically, this is only for several hours a week but has the advantage that the home tutor must provide your child with the work that the class is doing each week and assist her in keeping up with the work. However, this procedure only applies for extended absence and requires medical documentation. The specifics vary by state, so you should check your state rules.
My son has been diagnosed with a mixed receptive and expressive learning disability. He has been on an IEP since kindergarten and is now in 6th grade. His reevaluation came up, and the testing is showing he is making adequate progress; so they want to take him off his IEP. What rights do I have to keep him on one to maintain his accommodations?
Dear Traci:
First, the fact that your child is making appropriate progress doesn't automatically mean the services are not required, though schools often respond this way. Part of the decision should include consideration of whether the services remain needed in order for your son to make the progress. If the school proposes to discontinue services, you have the right to request a due process hearing, which you should do immediately upon receiving the school's decision to terminate services. If you make a timely request for a due process hearing, the school is supposed to continue services while the dispute is pending. This can give you time to gather information as to why services are needed, potentially get outside evaluations, and potentially consult with or get the assistance of a knowledgeable advocate or attorney. In addition, even if the school decides to remove eligibility for special education through an IEP, your son may still qualify for services and accommodations under Section 504.
My daughter is in sixth grade, and I have a problem with her school. She was diagnosed with dyslexia back in 2006. She was getting a lot of assistance with her reading last year through Section 504, and she did fairly well. This year the committee decided to remove some of the modifications based solely on her grades.
Last year she would get 1 hour and 15 minutes per day for both her interventions. Now she is getting 30 minutes a day for the Herman Method 4 times a week (if the teacher is not absent), and 45 minutes a week for the Reading 180. On top of that, the interventions that she is getting right now are being done by instructors who are not qualified to be giving them to her. I told them that the reason she had been doing so well last year is because of the assistance that she had been getting — the amount and from qualified teachers. My daughter's grade level of reading right now is third grade three month; they seem to think that is okay even though she's now in the sixth grade. What should I do?
Maria
Dear Maria:
First, the requirement for "highly qualified" teachers does not automatically mean that they must be fully trained in a particular teaching technique. However, these programs generally explain what level of training is needed to do them correctly. In addition, the special education law requires that schools use research-based programs to the extent practicable. Generally, the research based programs are based on carrying them out in a way that is consistent with how they were designed to be carried out (including by teachers with adequate training).
Schools should not change or reduce services without first conducting an evaluation to verify that what they are doing is correct. Evaluations are required before significant changes are made to a Section 504 plan as well. From your description, though, your child may actually be eligible for special education services through an IEP. If your child is reading three years below grade level, the school needs to justify why reducing, rather than increasing services, is appropriate. There would be an argument that they need to be doing more, not less.
My son (13) is on an IEP for Reading/Writing/Math. After many years of fighting with and begging the school to let him off of his IEP for reading and writing so that he could be in the general ed classroom for those two subjects, they agreed to let him go to general ed, for reading and writing. But they will not take reading and writing off his IEP, as they say "he still needs the support."
I don't think he needs the support; he's doing great in the regular general education class for reading and writing. And because they leave him on his IEP for those two subjects, he has to go to the Resource Room for reading and writing during 6th period. This takes away his opportunity to take an elective, like woodshop, which is important for him because it teaches him a trade. He spends his entire 6th period for reading and writing in the resource room doing homework from his other classes while trying to block out the noise from the other kids. He does not spend 6th period in the resource room with a special ed teacher working on his IEP goals.
Also, his language arts and social studies general ed. teacher says she is modifying his curriculum "substantially," which I respectfully completely disagree with. I work with my son every night on homework, and I can see what the other children are doing compared to my son. I think his curriculum is fairly modified. Can you please tell me if I, as his mother, against the school's desire, can take him off of his IEP for reading and writing but leave him on for math? And, if so, does leaving him on for math ensure that he will receive accommodations/modifications in his other general ed classes?
Thank you so much!
Dear Lynn:
First, it is not correct that a student must be in a special education classroom, just because they have an IEP, regardless of the disability or subject. Schools are required to provide services for students with IEPs in the least restrictive environment, to the extent possible. Where supplementary aides or services are needed in order for the student to be successful in regular education, these should be included in the IEP.
If your son needs supports in math but not in reading and writing, you can request an amendment to the IEP to focus on that problem. If you believe your child no longer needs help in reading and writing but the school does, you should consider either requesting a reevaluation to assess this or consider getting an outside evaluation to address this. You should also assemble as much information as you can about how your child is doing in these areas to show that he is capable of doing the work (and is doing regular work) without special education.
If you put down on a job application that you have a learning disability or ADHD, is the employer supposed to offer help? I always put this on my applications but have never gotten any kind of help at work. What can I do about this?
Dear Wayne:
Employers are not permitted to ask about disabilities on job applications and you are not required to state that you have a disability.
If you meet the bona fide qualifications for the job and are given a preliminary offer, they may ask further questions that are job-related that may relate to a medical condition. More importantly, if you have a documented disability and require accommodations, you may present evidence of your disability to the employer, as well as documentation of the need for reasonable accommodations.
However, this is typically done after you are hired. The employer is not obligated to provide you with an accommodation simply because you identify that you have a disability. Check the Equal Employment Opportunity Commission Web site for information about your rights under the ADA in relation to both the application process and seeking accommodations after you are hired.
My child has severe dyslexia, as determined by a private evaluator. We are trying to get his school to provide services; however, this could take 30 weeks (losing an entire school year). I have been looking everywhere in my county for tutors, etc. to help him in the interim as long as I can afford it, but am finding nothing. Do you have any recommendations on where to turn? I live in Palm Beach County, Florida.
Dear Michelle,
Although in reality, getting a child determined eligible for special education can sometimes take a long time — even 30 weeks — but by law, this should not occur. You should check your state's special education regulations for the specific timeframes from date of referral to completion of consent to completion of the evaluation.
In any event, if you decide you need to secure tutoring services in the interim, you may consider providing the school with a "unilateral placement" letter, notifying them that you are obtaining the private services due to their failure to provide appropriate (or any) special education services and that you want them to pay for the private services. Giving this letter does not obligate them to pay, but may give you a basis for pursuing reimbursement from them.
As to tutoring services in Florida, I suggest you contact the Learning Disability Assn. of Florida, as well as the federally funded Parent Training Center in your area for ideas for sources of tutoring. You can find the closest parent training center to you at www.taalliance.org.
Hi Mr. Cohen,
We have a 9-year-old daughter with many issues — she has ADHD, Tourette's, OCD, a specific learning disability in listening, extreme anxiety, and a new diagnosis of bipolar disorder.
Despite all this, she is extremely bright, and it has taken several years for the public school system to acknowledge her issues. She has an IEP under the categories of other health impairment and specific LD.
Last month school became too stressful for her, and the psychiatrist decided (with us, her parents) to remove her from school and let her have homebound schooling provided by the district. A new IEP meeting was convened, with all present agreeing to provide her with 15 hours per week of homebound services. That amount was ordered by her doctor.
Present at the meeting were the parents, both the special ed and regular ed teachers, and the special ed coordinator, all of whom agreed to the 15 hours. We have this meeting on tape.
This past week, the parent coordinator called to tell us the services would only be provided for three hours. The school did not provide written notice of this, just a phone call. Also, they did not amend the previous IEP with the new placement, even after we requested an updated IEP. We have protested by phone and via email saying that we do not agree with the reduction in hours, and still want the 15 promised.
My question is, can they legally be required to provide 15 hours? How can we get them to honor their commitment made at the IEP meeting? This is not FAPE. Please help us!
Dear Leigh:
States have differing requirements for the minimum level of services required for homebound instruction as a matter of law. You should check your state's special education rules to determine this.
However, if the school wrote an IEP providing for 15 hours a week of service and an administrator changed this after the fact, this is a unilateral change of service without an IEP meeting or your participation. You should immediately consult a knowledgeable special education advocate or attorney and may need to file a due process hearing immediately in order to block the change in service levels.
As you did not receive prior written notice, you may also be able to force a return to the promised levels on the basis of "stay put" placement, even if some time has passed since this unilateral change was implemented. Again, you need legal consultation to follow up on this.
My son has Asperger's and learning disabilities. He is 17 years old and will graduate from high school in the Spring of 2010. My son has had an IEP for years. There are numerous accommodations listed on his IEP.
My question is, once he moves on to a two- or four-year college, will his IEP still be of any use to him? Will he get any help?
Dear Mary:
Once a student graduates from high school with a regular education diploma, the IEP is no longer controlling. The IDEA/special education law has no legal force with respect to colleges or universities.
However, these institutions are required to provide reasonable accommodations pursuant to Section 504 and the Americans with Disabilities Act. The IEP will provide useful information to document the need for accommodations, but your son will need to contact the school's disability services office to present documentation of the disability and of the need for accommodations.
Under some circumstances, even if the student has met the technical requirements for graduation, if he or she still has significant unmet needs — such as in the areas of life skills, organizational skills, or social skills — he or she may be eligible for services beyond the twelfth grade year. But this would mean delaying graduation. In some instances, the transition plan could involve participation in community college courses with continuing support from the public school in various ways.
My 23-year-old daughter has a well-documented, severe, and longstanding math disability. She has been told that to earn a degree in early childhood special education and to teach with a certificate in New Jersey she must pass two semesters of college-level algebra.
She is in the process of failing remedial algebra again. Can you suggest any agency or way to try to get an accommodation so that she can graduate college, take the Praxis (required exam for teachers), and teach? She has very strong verbal skills and is capable of all of the academic and practical work required for early childhood education.
It has been my experience that even typically developing preschoolers do not have to learn to do quadratic equations. I am not sure why the teacher must demonstrate that competency to teach preschool math. We appreciate any suggestions you can offer. Thank you.
Dear Jane:
I suggest that you contact the state agency responsible for teacher certification. They should have a procedure for granting waivers or accommodations for various requirements for certification. They may feel that these courses are fundamental to the preparation for the job, but as you point out, this seems questionable.
They should also have an appeal procedure to address what to do if they refuse to make an exception. In order to assure that you follow the right procedure, you and your daughter should consult with a knowdledgeable ADA/disability rights lawyer in your area for advice. You may get information on possible lawyers from COPAA, from the American Bar Association's Disability Lawyer Search engine, or by contacting the New Jersey Protection and Advocacy agency to get the New Jersey agency.
You may need expert support to make the point that the math skills being tested are not fundamental to the job for which the license is being sought. You may also be able to identify and propose other ways for satisfying the math requirement.