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Expert Q&A

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 Mr. Cohen,

Despite being very bright, my daughter was falling behind in first grade. She was diagnosed with ADD and this was discussed during a parent teacher conference.

She barely got by, but made it to second grade, and fell even further behind. We met with the teacher, and asked she be evaluated because we thought there may be something going on affecting her learning other than or along with her ADD. At that time we did not know anything of the ADA/Section 504 process, and were not informed. Months later, we found my daughter was being punished because of not completing classroom assignments.

When we asked about the evaluation, they said we never gave them anything saying she had ADD, so they were under no obligation to do anything, but kept telling us we had to work with her at home.

It is now five weeks until the end of the school year, and we still have nothing, and they can not say whether there is a problem or whether my daughter will pass second grade. I want to file with the OCR and place my daughter in a private school.

Could you please go over this process and advise on what else can be done?


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.

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