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Expert Q&A

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

Dear Mr. Cohen,

We have been having problems with our local school district. My son has been diagnosed with Pervasive Developmental Disorder, AD/HD, and Borderline Intellectual Functioning. The special education department claims that he is not eligible for services under an IEP or a 504 even though he has deficits and has a developmental age of 3- to 4-years-old and is now 6-and-a-half-years-old.

They refused special education services and placement in kinderprep and placed him in kindergarten last year. The classroom teacher made modifications to his curriculum and he had one-on-one instruction for the most part. Even with these things he did not meet the requirements to go on to first grade. The school is still refusing services, but recommends he be retained in kindergarten.

I am not sure where to go next. Being that he is almost seven, I do not feel it is appropriate for him to remain in kindergarten without support, or to move on to first grade unsupported; any way he goes without support he will fail. What should I do?

Garden City, KS

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.

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