Chapter 31 (Foundations)

Is consent required before evaluating a child under 504?

Section 504 regulations themselves do not specifically require consent, but the Office for Civil Rights has always said that consent is required their advisory is also silent with respect to the form (written or oral) that consent should take it is, however, a well-known principle of general law that if something is not in writing, it did not happen

Is a medical diagnosis enough or required to classify a child as being eligible under 504?

no, students are entitled under 504 to a comprehensive evaluation provided by the school district it would be up to the 504 committee composed of people knowledgeable about the child to determine if the disability caused a substantial limitation in a major life function triggering the right to services a medical diagnosis could be helpful, but it is insufficient evidence for classification, nor is a medical always required, even for diagnoses of attention deficit hyperactive disorder if the committee requires a medical evaluation, then that evaluation must be provided by the school district at no cost to the parents

Is there any limitation on the costs a school system must incur if it is determined that a related service is needed in order to provide a child FAPE?

not according to the U.S. Supreme Court the U.S. Supreme Court ruled that cost was not an appropriate standard to be applied and ordered districts to provide children in question with a full-time nurse during school hours

If an IEP team determines that a child identified as having a speech learning impairment needs reading or written language services in a resource room from a specific language disability teacher, does the team have to reevaluate the child to identify the child as having a specific learning disability?

not if the state regards a speech or language impairment as a disability, not just a related service services are not determined by the child's category of disability, but by the needs arising out of that child's disability

Overview

school psychologists are typically involved in all aspects of special education where decisions must be made with respect to a child's referral, evaluation, identification, and services the 2004 Individuals with Disabilities Education Improvement Act (IDEA) is implemented by the 2006 regulations (Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children with Disabilities) published at 34 Code of Federal Regulations (C.F.R.) Part 300.fr, the Section 504 Regulations at 34 C.F.R. Part 104.fT, and the regulations for the Family Educational Rights and Privacy Act at 34 C.F.R. Part 99.ff

Can school psychologists classify students under IDEA?

school psychologists certainly can be part of the entitlement process, but only eligibility groups, composed of qualified professionals and the parent, are authorized to classify students under IDEA

Frequently Asked Questions

school psychologists will in the course of their employment be asked many questions by colleagues

How many days may a child with a disability be suspended without a manifestation hearing and without receiving services?

ten consecutive days or 10 cumulative days when there is a pattern of suspensions because the behaviors causing the suspensions were substantially similar

Is parent participation required in determining eligibility or developing a plan under 504?

the 504 regulations and Office for Civil Rights frequently asked questions do not include such a requirement however, it is recommended if only to ensure that the district can show it has provided the child with a comprehensive evaluation

If a child with a disability needs only a related service in order to receive FAPE, can he or she still be identified under IDEA?

usually, the answer is no however, if the related services and other accommodations rise to the level of specially designed instruction, classification under IDEA could be considered the definition of special education (specially designed instruction) in the IDEA regulations says: "Specially designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction" usually, however, a 504 team would be convened to determine the child's non-special educational need for services

Screenings and Interventions

what are the school system's obligations under Child Find? can a standardized test with national norms be administered for screening purposes, without parental consent, to a student prior to referral to assist in educational planning? what is a scientific research-based intervention?

Multitiered Interventions

what do the regulations and case law say about the use of response to intervention (RTI) in a problem-solving model? there are four major points: - IDEA 2004 and the 2006 Final Regulations permit but do not require the use of a problem-solving model; at least 14 states, however, have adopted problem-solving models as their only approved methodology for identifying children with specific learning disabilities for at least some age ranges or academic areas - there had been no significant ligation as of 2012 over the use of a problem-solving model whether implemented with professional integrity or not - interventions are by law to be based wherever possible on scientific, research-based instruction - neither RTI nor an achievement/ability discrepancy model would in and of itself satisfy the requirements for a comprehensive evaluation

Evaluating Children With Limited English: Proficiency

what legal principles govern the selection of an intellectual assessment when assessing a limited English proficient student? must a limited English proficient learner be tested in his or her native language?

Due Process Rights

what legal remedies can parents invoke when they disagree with a district's decision? under both IDEA and 504, parents may appeal a decision on procedural grounds to the state education agency under IDEA or, if alleging a civil rights violation, appeal directly to the Office for Civil Rights under the 504 regulations before appealing to state or federal court, parents must exhaust available administrative remedies 504 regulations also require schools to provide parents with a dispute resolution process

What medically related services are a school system not required to provide?

a school system is not required to provide medical services that can only be provided by a physician, except, of course, for medical evaluations that are needed to establish eligibility and a child's need for special education or related services one other area in which a school would not be responsible for providing medically related services would be the monitoring of surgically implanted devices, specifically cochlear implants

Freedom of Speech

when can school psychologists exercise the right to free speech and expect court protection? freedom of speech does not end at the schoolhouse door and speaking out on behalf of children's rights is protected by the courts however, in an adversarial situation, school systems may vigorously assert one of two exceptions to free speech as a defense for dismissing an employee: - the school system would have dismissed the school employee for cause even if the school employee had not engaged in protected speech - the speech was not protected because it was primarily about the conditions of the school employee's employment, not about the children's welfare or a matter of public interest (Pickering even when a plaintiff prevails, the litigation can be lengthy and expensive

Issues Regarding Parental Consent for an Evaluation

when is a consent considered a consent, and when is it not? may a school ask parental consent to use the parents' insurance to pay for a medical evaluation? is consent required before evaluating a child under 504? if parents revoke consent for services under IDEA as permitted by the 2008 amendments, would the child still be entitled to services under 504? under the amended IDEA, may parents withdraw consent for some services while continuing others?

Eligibility Determinations

can school psychologists classify students under IDEA? may school psychologists diagnose students using the Diagnostic and Statistical Manual (DSM) to meet 504 requirements? what diagnostic systems may be used in diagnosing a disability under 504? what are the standards to be applied in determining 504 eligibility? is every child who is exited from special education automatically eligible for accommodations under 504? under 504, is a child with a disability entitled only to reasonable accommodations from the school, or is the child entitled to FAPE? should a child diagnosed with an oppositional disorder or conduct disorder (i.e., as socially maladjusted) be excluded from consideration in the category of serious emotional disturbance? if a student is functioning at grade level academically, can he or she be excluded automatically from special education consideration?

Is every child who is exited from special education automatically eligible for accommodations under 504?

children who are exited from special education are not automatically eligible for services under 504 however, the Amendments to the Americans with Disabilities Act of 2008 made it a lot easier for a child exiting special educational services to establish eligibility for general education accommodations under 504 Congress wrote in the Americans with Disabilities Act Amendment Act of 2008, "Congress finds that the current Equal Employment Opportunity Commission ADA regulations defining the term 'substantially limits as 'significantly restricted are inconsistent with congressional intent, by expressing too high a standard" the most common disability in schools, of course, is specific learning disability it is critical to reject the assumption that an individual who performs well academically or otherwise cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking the DSM-5 diagnostic criteria for a specific learning disorder may trigger rights to services under 504 even when a child does not meet a state's criteria for having a specific learning disability that would be especially true in schools still using an IQ achievement discrepancy methodology because diagnosis under the DSM-5 is based primarily on substantial interindividual differences based on normed or criterion referenced tests and a comprehensive evaluation including documentation of a child's historical response to appropriate educational instruction while the DSM-5 excludes children with intelligence in the intellectually disabled range (as well as children whose problems are better explained by a lack of instruction), it defines "normal" levels of intelligence as being above 70, plus or minus 5 points a few states are also requiring documentation of deficits in psychological processing disorders for use in determining specific learning disorder eligibility under the IDEA, but the DSM-5 says explicitly that for a diagnosis of a specific learning disorder, testing for cognitive processing is not required nevertheless, a DSM-5 diagnosis would still require a comprehensive evaluation although the DSM-5 does provide guidelines for diagnosticians to rate the severity of the disability as moderate or severe (with differing recommendations for treatment intervention), it should always be remembered that only a 504 Committee composed of people knowledgeable about the student is authorized to determine if a diagnosed disability is substantially limiting that individual to such an extent that accommodations or other services are required if achievement test scores are used, the DSM-5 requires academic achievement "at least 1.5 standard deviations [SD] below the population mean for age" for the "greatest diagnostic certainty," but admits that thresholds are "to a large extent arbitrary" and allows for, "on the basis of clinical judgment, a more lenient, when learning difficulties are supported by converging evidence" from other sources Under 504, is a child with a disability entitled only to reasonable accommodations from the school, or is the child entitled to FAPE? "reasonable accommodations" are what must be provided in a work environment, but the Office for Civil Rights has long held that children in public schools are entitled to FAPE irrespective of cost one significant difference between IDEA and 504 is that, in order to be eligible for IDEA protections, a child must demonstrate that he or she needs specially designed instruction (special education); under 504, a child with a disability would be eligible for accommodations, related services, special education, or even a residential placement if needed to receive FAPE if he or she had a substantial limitation of a major life function

Must a school psychologist attend IEP team meetings when a psychological evaluation has been administered?

federal regulations do not impose such a burden the person most qualified to interpret the instructional implications of the test results may not be the diagnostician who evaluated the child" however, an eligibility group for a child suspected of having a specific learning disability must include someone qualified to conduct individual examinations, and the regulations specifically allow for that individual to be a school psychologist, speech pathologist, or reading teacher

What is "stay put"?

for a school-age child, "stay put" refers to the right of a child with a disability to stay put in his or her present placement when a parent is contesting his or her long-term suspension or expulsion or a change in placement if a child with an IDEA classification is suspended for weapons, drug, or incidents involving serious injury, school administrators can, through an IEP team meeting, place the child for up to 45 days in an alternative placement "stay put" does not apply to children who transfer from a Part C program, early intervention services for infants and toddlers with disabilities (birth to 3 years of age), to a Part B program, services for school-age children (ages 3-22) the Office of Special Education and Rehabilitative Services has said that when a child ages out of a Part C program, that child no longer has a current educational placement

What are the school system's obligations under Child Find?

generally speaking, a school system is responsible for finding, evaluating, and identifying children within its school district, whether they are enrolled in public school, enrolled in private school, or homeless, who are or who may have disabilities children with disabilities do not have to fail or be retained to be considered for special education and related services

Can a standardized test with national norms be administered for screening purposes, without parental consent, to a student prior to referral to assist in educational planning?

generally, yes screening measures are typically brief, and if used for the purpose of developing educational interventions, parental consent is not required by the federal regulations if a school does ask parents for consent, that would imply parents can withhold consent which would also limit general education in its ability to address specific areas of difficulty by providing effective research-based scientific instruction required by the Elementary and Secondary Education Act (ESEA) as well as IDEA

Authority of School Personnel in Suspensions/Expulsions

how many days may a child with a disability be suspended without a manifestation hearing and without receiving services? what are the standards to be applied in determining whether or not behavior governed by the school's student code of conduct was a manifestation of the child's disability? if a student has a 504 plan and not an IEP, is a manifestation hearing still required before suspending the child long term? when, if ever, would a bus suspension count toward the 10 days of suspension allowed by federal law? may the principal notify law enforcement? what is "stay put"?

Related Services and/or Accommodations

if a child with a disability needs only a related service in order to receive FAPE, can he or she still be identified under IDEA? is there any limitation on the costs a school system must incur if it is determined that a related service is needed in order to provide a child FAPE? what medically related services are a school system not required to provide?

Reevaluations

may a special education administrator lawfully require a school system to retest children every 3 years and then bar services to those classified as having a specific learning disability when a severe achievement-ability discrepancy can no longer be documented? is a reevaluation required every 3 years even if an IEP team and parents do not think it is needed? if a child was originally identified using a discrepancy methodology, but is reevaluated in a school using an RTI methodology, what factors should the IEP team consider in determining continuing eligibility? do high school students identified as eligible for special education need to be reevaluated before graduating? is a reevaluation required before exiting a child from a special education program?

What diagnostic systems may be used in diagnosing a disability under 504?

neither IDEA nor 504 limits practitioners to any single system the Equal Employment Opportunity Commission (1997) and the courts have recognized DSM as one important tool (but not the only tool) for diagnosing a disability under the Americans with Disabilities Act/Section 504 we believe that a diagnosis from DSM should be within the competence of most school psychologists and that the level of training required to become proficient need not be as extensive as the level of training needed to prescribe appropriate treatments for those disabilities

If a student is functioning at grade level academically, can he or she be excluded automatically from special education consideration?

no IDEA regulations explicitly state that a child does not need to fail or be retained in order to qualify for services

A Basic Principle

IDEA and Section 504 both give eligible children with disabilities the right to a free appropriate public education (FAPE) in the least restrictive environment FAPE is not explicitly defined in the federal regulations, but since the U.S. Supreme Court ruled in the Hendrick Hudson Central School District v. Rowley (1982) case, it has been defined by the courts as an education reasonably calculated to provide nontrivial benefit in accordance with the procedural requirements of IDEA or an educational opportunity equal to that provided to a child who does not have a disability under 504 the application of these standards in any dispute is universally applicable even when a school system has complied with parental requests with respect to the provision of services, if it fails to offer those services within the procedural framework established by Congress, it could find itself at a disadvantage in an adversarial dispute

Do parents have a right to copies of a psychological or psychoeducational report?

IDEA gives parents the right to inspect and review any educational records relevant to their child before any IEP team meeting, including any existing educational reports IDEA also requires schools to provide parents with copies of the evaluation report and documentation regarding the determination of eligibility. Schools are not required to provide copies unless that would result in the parents being unable to access the information the team's evaluation report is not the same as the individual psychological or psychoeducational evaluations (which in some states may be attached to the evaluation report)

Federal Agencies in the United States Department by Special Educators

Overview

Schooled Students: Special Case: Private School and Home

What are the rights of private school children to services?

IEPs, 504 Plans, Related Services

although parents may file a due process complaint over virtually any decision with which they disagree, the topic we have seen most frequently disputed is whether or not a school system has provided a student with FAPE in the least restrictive environment since the U.S. Supreme Court in 1982 defined FAPE as an IEP developed in accordance with the regulatory procedural requirements that provided a child with a reasonable expectation of benefit, procedural errors in developing an IEP (e.g., changing a child's placement without parental participation or writing an IEP that has no measurable goals) may be regarded as fatal errors by a judge other procedural errors (e.g., a timeline violation) resulting in no harm to the child's education will usually be dismissed, but deficiencies in the IEP or its development, including procedural deficiencies, will be regarded with less tolerance by administrative hearing officers and judges

May school psychologists diagnose students using the Diagnostic and Statistical Manual (DSM) to meet 504 requirements?

appropriately trained school psychologists may diagnose children using, for example, the DSM criteria however, under federal regulations, a DSM diagnosis is not required for classification and a DSM diagnosis alone is never sufficient for classification classification (sometimes referred to as an eligibility determination or entitlement or identification is not a diagnosis or an "educational diagnosis" under the federal regulations, eligibility groups are empowered to classify children and determine if they need special education in order to receive FAPE while districts may have a separate process for evaluating children under 504 from that employed under IDEA, if a child is evaluated under IDEA there is no reason, even in a district employing alternative processes, that a psychological evaluation completed to determine IDEA eligibility could not be used in determining 504 eligibility if the evaluator provided an appropriate diagnosis

Educational Records: School Responsibilities

are psychological test protocols (record forms) used by the school psychologist or other school-based assessors considered educational records? can information regarding a child's disability be placed in the child's cumulative record? do parents have to give written consent for special educational records to be transferred to another school system in which the student is enrolling? does IDEA provide protections regarding the destruction of records in addition to what are provided by FERPA? do parents have a right to copies of a psychological or psychoeducational report?

Who decides if a person or persons invited by the school or parent to an IEP team meeting has knowledge or expertise relevant to the child's education?

regardless of who does the inviting, the party issuing the invitation determines whether or not those invited has relevant knowledge or expertise a parent brings a lawyer to an IEP team meeting as a result of the negotiations, the IEP team adopts most of the parent's recommendations

When is a consent considered a consent, and when is it not?

before assessing a student, a school psychologist always needs to verify the student has a valid and current consent to test in each scenario, unless there was a court order terminating the biological parents' rights, the biological parents would have the right to assert their rights at any time - the parents of a child living in a group home cannot be located, and the group home parent has signed the initial testing consent; group home parents may, if the child is a ward of the state, sign for initial evaluations only, but if a parent has not been found after the evaluations are completed, a surrogate parent must be appointed by the school system - a guardian ad litem appointed by a court has signed the consent for testing; in this instance, the consent is not valid unless: --- the guardian ad litem has provided the school with a court order giving the guardian the right to make educational decisions --- the guardian ad litem has been appointed by the school system as the child's surrogate parent - the child is a ward of the state, is in a foster home, and a foster parent has signed the testing consent; the consent is valid until or unless the biological parents assert their rights; IDEA gives foster parents the rights of a birth or adoptive parent unless the foster parents have a conflict of interest or are unwilling to assume those responsibilities, or unless it is otherwise prohibited by state law - the child is a ward of the state and a social worker has signed the consent; the consent would not be valid because IDEA prohibits social workers and others working in any agencies serving the child from serving as surrogate parents, although they may be invited to the IEP team meetings by the school or parent - consent is signed by a grandparent with whom the child lives; the consent would be valid without any additional documentation

When, if ever, would a bus suspension count toward the 10 days of suspension allowed by federal law?

bus suspensions do not count unless bus transportation is written into the IEP as a related service or if as a result of the bus suspension the child was unable to participate in the general curriculum, receive services specified in the IEP, and/or participate in activities with general education students to the same extent as she or he had previously a child with a disability commits an unlawful act that is a manifestation of his or her disability while in school

Are psychological test protocols (record forms) used by the school psychologist or other school-based assessors considered educational records?

yes, and under FERPA they may be inspected and reviewed by parents state statutes may add to those rights

Development of IEPs

if an IEP team determines that a child identified as having a speech learning impairment needs reading or written language services in a resource room from a specific language disability teacher, does the team have to reevaluate the child to identify the child as having a specific learning disability? if a child is initially identified as having a specific learning disability in reading, and 2 years later the IEP team wants to add another goal area (e.g., math), must the child be reevaluated and a severe discrepancy between intelligence and mathematics documented? if one parent requests that a child be withdrawn from special education, and the other parent requests services be continued, whose request must the school honor? if a student with an IQ in the intellectual disability range has a severe discrepancy between ability and achievement, is he or she automatically excluded from consideration in the specific learning disability category? must a school psychologist attend IEP team meetings when a psychological evaluation has been administered? when a child transfers from one school to another with an IEP but an incomplete folder, may the school provide the child with comparable services while updating the folder? who decides if a person or persons invited by the school or parent to an IEP team meeting has knowledge or expertise relevant to the child's education? is the parent entitled to reimbursement for the attorney fees? a child who was limited in English proficiency was identified as having a language impairment based on a recommendation by the speech/language pathologist; can the IEP team provide the student with special education in reading and writing? is parent participation required in determining eligibility or developing a plan under 504? is a medical diagnosis enough or required to classify a child as being eligible under 504?

Is the local education agency obliged to pay for medical evaluations?

if the local education authority or public agency also suspects that a child has an educational disability, then it must provide an appropriate assessment at district expense if the local education authority does not share in the parent's suspicion, then it must tell the parent, in writing, that it is declining his or her request and provide the parent with due process right

Issues in Evaluations

is the local education agency obliged to pay for medical evaluations? if the parents refuse to let the school evaluate their child, can they require the school to pay for an independent education evaluation? may a school system use the same procedures it uses under IDEA to evaluate children under 504? since specific learning disabilities are defined in IDEA and the IDEA Regulations as a disorder in one or more of the basic psychological processes, does that mean a comprehensive evaluation for specific learning disabilities must include an assessment of psychological processes?

May a school ask parental consent to use the parents' insurance to pay for a medical evaluation?

it is permissible to ask, but parents have no obligation to consent the local education authority must obtain parental consent each time it seeks access to private insurance and must, each time, inform parents that the local education agency must still provide all necessary evaluations at no cost even if parents refuse access further, the school system must pay the deductible or copay even when the parent does consent to use of the insurance if the parents are receiving public insurance (e.g., Medicaid), 2013 amendments to IDEA allow the school to obtain informed written consent only once; thereafter, the school would be able to use the public insurance as often as needed without getting additional parental consent the federal amendment requires that the parents be given all their rights in writing before obtaining consent and before using their insurance and again at least once annually thereafter

When a child transfers from one school to another with an IEP but an incomplete folder, may the school provide the child with comparable services while updating the folder?

it must school psychologists should be aware that even if they have been asked to update the folder with new evaluations, the school must provide the student with services comparable to those specified in the student's previous IEP until it has written a new one the requirement to provide comparative services applies equally to children transferring either within or from outside the state until the school has completed its evaluation and either developed a new IEP or determined the child does not qualify

Do parents have to give written consent for special educational records to be transferred to another school system in which the student is enrolling?

no Section 300.323 of the 2006 Final Regulations requires local educational agencies to request special education records and requires schools from which the student transferred to provide those records FERPA allows schools to transmit educational records without written parental consent to any other school in which a child seeks to enroll, intends to enroll or has already enrolled schools must publish an annual notice that includes, among other things, the fact that they forward school records to schools in which students intend to enroll schools must make reasonable efforts to notify (not ask permission from) parents when they forward records and must offer to provide copies of the records that were forwarded. Schools may not withhold special education records needed to determine a student's appropriate placement because the student has debts outstanding

Should a child diagnosed with an oppositional disorder or conduct disorder (i.e., as socially maladjusted) be excluded from consideration in the category of serious emotional disturbance?

no a diagnosis reflecting social maladjustment is not sufficient for classification, but neither is it exclusionary if a child meets the criteria set forth in the federal definition, and if as a result needs special education, then the child can be classified even if he or she has been provided with a DSM diagnosis of a conduct disorder or oppositional disorder if a child meets the other criteria in 34 C.F.R. 300.8 (4), whether he or she also has a social maladjustment would be irrelevant to the eligibility decision additionally, the Office for Civil Rights (1989) has said that social maladjustment could establish eligibility under 504 if a child established it was a mental condition that was substantially limiting him or her in a major life function such as learning FAPE as defined by the 504 regulations is sometimes described in the literature as requiring schools to level the playing field, but more specifically FAPE requires the school to provide services that meet the educational needs of a child with a disability that are as adequate as services provided to children without disabilities

May a special education administrator lawfully require a school system to retest children every 3 years and then bar services to those classified as having a specific learning disability when a severe achievement-ability discrepancy can no longer be documented?

no an administrator may recommend that children be formally evaluated every 3 or 6 years, but only the IEP team is authorized to request additional testing if in its judgment additional testing is needed to determine eligibility or present levels of performance even when an IEP team is following a supervisor's suggestion in recommending formal testing, written parental consent would be required of course, in a school system using an RTI methodology, the presence or absence of an ability-achievement discrepancy would be irrelevant in any situation where district mandates are resulting in the diminution of parental or children's rights, those practices should be brought to the attention of one's supervisor where conflicts between practice and law arise, we recommend documenting those perceived conflicts to a supervisor in writing, with a copy kept in one's personal file

If parents revoke consent for services under IDEA as permitted by the 2008 amendments, would the child still be entitled to services under 504?

no at least since 1996, the Office for Civil Rights has opined that if a parent refuses consent for an IEP, the school has met its obligation to offer FAPE under 504 and is under no obligation to do anything more however, there is nothing to prevent a school system from offering services under 504 to an otherwise qualified child under those circumstances, and in some cases (e.g., providing testing modifications to help meet No Child Left Behind benchmarks) that might also be in the school's best interests

If a student with an IQ in the intellectual disability range has a severe discrepancy between ability and achievement, is he or she automatically excluded from consideration in the specific learning disability category?

no learning problems that are primarily the result of intellectual disability may not be classified as being a specific learning disability however, not all children with intelligence scores in the range of intellectual disability qualify as having an intellectual disability based on adaptive behavior scores those children would not be excluded from consideration in schools using a discrepancy methodology unless state regulations imposed a higher burden (e.g., a minimum IQ score of 80) we want to emphasize that regardless of label, a child with an intellectual disability, for example, may have the same need for, and the same expectation of benefit from, a scientific research-based instructional intervention (e.g., a structured phonemics program) as a child classified as having a specific learning disability services and placements must not be predicated solely upon the category of disability all evaluations must be sufficiently comprehensive to identify all of a child's special educational and related service needs, whether commonly linked to the category of disability or not an evaluation composed solely of screenings and evaluations required by a state under a particular category will not always meet that standard

If a child is initially identified as having a specific learning disability in reading, and 2 years later the IEP team wants to add another goal area (e.g., math), must the child be reevaluated and a severe discrepancy between intelligence and mathematics documented?

no once a child has been found eligible, if the team determines the need for additional special educational services, the team with parental participation need only modify the IEP to reflect that fact once identified, a child's needs, not the label, always drive the IEP

If the parents refuse to let the school evaluate their child, can they require the school to pay for an independent education evaluation?

no parents would only be entitled to an independent education evaluation at district expense if they disagree with the school's evaluation the district can impose the same limitations it would set for hiring its own outside evaluators, unless there were no qualified evaluators in that region; in that case, the restrictions would not apply a school may defend itself by asserting through due process that its evaluation was appropriate and comprehensive, but the cost of complying is almost always far less than the cost of litigating the matter

Under the amended IDEA, may parents withdraw consent for some services while continuing others?

no the 2008 Amendments to the 2006 Regulations for IDEA (Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 2008) do not provide a mechanism for partial withdrawal of consent - it is all or nothing parents may, of course, attempt to modify their child's IEP through mediation or due process

Do high school students identified as eligible for special education need to be reevaluated before graduating?

not if they are graduating with a regular diploma or are aging out of the program however, if the student is receiving a certificate other than a regular diploma, then the school must reevaluate the student as the student retains the right to FAPE until he or she ages out of eligibility sometimes parents ask the school to reevaluate their child in order for the child to qualify for 504 accommodations in a postsecondary institution schools are not prohibited from providing evaluations for postsecondary services, but neither are they required to do so when a student graduates with a regular diploma, the school must provide the student with "a summary of the child's academic achievement and functional performance, which shall include recommendations on how to assist the child in meeting the child's postsecondary goals"

Is the parent entitled to reimbursement for the attorney fees?

parents are entitled to attorney fees only as a result of a hearing officer or judge's enforceable decision IDEA regulations allow for prevailing parties to obtain attorney fees, and the legal definition of a "prevailing party" is "the winner of a lawsuit" so, when lawyers are present, IEP teams may consider parental requests without any fear that they might incur legal costs for the district by acceding to their requests

What legal principles govern the selection of an intellectual assessment when assessing a limited English proficient student?

the Office for Civil Rights investigates and prohibits discrimination based on race, color, or national origin in public schools IDEA, enforced and monitored by the Office of Special Education Programs, prohibits a child from being classified if the primary determinant of the "disability": is a lack of English proficiency therefore, if a school psychologist used a test that was measuring a construct other than the one for which it was intended (e.g., English skills rather than general ability), that would not only be unethical but potentially a violation of the child's civil rights in general, we recommend, with some caveats, that school psychologists use the results of a nonverbal measure of intelligence as the best estimate of the ability of a student with limited English proficiency, a recommendation endorsed by some courts

If a child was originally identified using a discrepancy methodology, but is reevaluated in a school using an RTI methodology, what factors should the IEP team consider in determining continuing eligibility?

the answer to this question does not hinge on what methodology was used or is currently being used by the school the Office of Special Education and Rehabilitative Services advised the states in the Preface to the 2006 Final Regulations: "Obviously, the group should consider whether the child's instruction and overall special education program have been appropriate as part of this process. If the special education instruction has been appropriate and the child has not been able to exit special education, this would be strong evidence that the child's eligibility needs to be maintained."

What are the standards to be applied in determining whether or not behavior governed by the school's student code of conduct was a manifestation of the child's disability?

the child's behavior may be found to be a manifestation of the child's disability - if the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability - if the conduct in question was the direct result of the local educational agency's failure to implement the IEP while normally a manifestation hearing would not be required until a child had been suspended for 10 consecutive days or, if resulting in a change of placement, 10 cumulative days, state rules may impose an additional burden

What is a scientific research-based intervention?

the definition of a scientific research-based intervention is taken from ESEA, was repeated in the Preface to the 2006 Final Regulations, and can be summarized as instruction based on peer-reviewed research involving the "application of rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant to education activities and programs"

What are the rights of private school children to services?

the public schools have the same obligation evaluate parentally placed private school children suspected of disabilities as they would to children who were enrolled in public school private school students do not, however, have a right to FAPE or an IEP they do however have a right to a service plan if the services provided by the public school system using a proportion of federal funds would meet their needs parents do not have due process rights, but they may appeal to the state education agency if they believe the school system did not meet its obligations during Child Find in collaboratively developing its plan for services

If one parent requests that a child be withdrawn from special education, and the other parent requests services be continued, whose request must the school honor?

the school must comply with the request from the parent who revokes consent for special educational services the revocation must be in writing since it is not a violation of IDEA for a parent to revoke consent, due process procedures may not be invoked by the other parent or the school however, the parent may use whatever other legal processes are available for dispute resolution between parents that their state allows either parent may subsequently re-refer the child for evaluation the evaluation would be treated as an initial evaluation (not as a reevaluation), with all the initial evaluation requirements of course, the IEP team could choose to adopt previous screenings and/or evaluations if the screening or evaluations were sufficiently current before requesting new testing

Is a reevaluation required every 3 years even if an IEP team and parents do not think it is needed?

under federal regulations, if the parents and school agree in writing that it is unnecessary, then it need not be conducted; however, some states require the triennial evaluation regardless, so check the state's regulations all reevaluations will not require new testing, of course, if the IEP team determines it has sufficient information, after reviewing previous evaluations, classroom observations, and current classroom performance, to determine the child's present levels of performance and that the child continues to have a disability and still needs special education

Damages

under what circumstances can a school psychologist be liable for damages? education laws in general would not hold any school employee liable unless his or her actions were so egregious as to offend the public sensibility but, within the context of education laws affecting children with disabilities, things get a little more complex school personnel cannot be held liable for an IDEA violation or a Family Educational Rights and Privacy Act (FERPA) violation because neither law allows for damages the U.S. Supreme Court ruled that the only penalty available for violating FERPA would be the suspension of federal funds to a school system by the U.S. Department of Education but once again, state laws may give parents additional rights not available under federal statute however, while still rare, there have been cases brought to the courts under 504 alleging a civil rights violation where parents are alleging that their child has suffered because of "deliberate indifference" on the part of school staff members to the adverse consequences of the school staff members' failure to meet their obligations under 504 the standard of proof is high however, the number of lawsuits seeking damages from individuals (not just public entities), while still small, is increasing additionally, Title VI of the Civil Rights Act of 1964 prohibits discrimination against any student based on race, national origin, or sex if a child is discriminated against based on any of the above, whether by staff or other students, and the administration fails to take prudent and effective action, then the administrators may be held personally liable it is especially important to distinguish between "normal" bullying (which would be addressed presumably under board policy) and a civil rights violation if an investigation determines that the victim's civil rights were violated, then the school must take prompt and effective corrective action, documenting that action, to protect both the student from harm and itself from litigation seeking damages state laws may permit a parent to seek damages alleging physical or mental cruelty

Since specific learning disabilities are defined in IDEA and the IDEA Regulations as a disorder in one or more of the basic psychological processes, does that mean a comprehensive evaluation for specific learning disabilities must include an assessment of psychological processes?

unless your state requires it, an assessment for psychological processing disorders is not required by federal regulation, nor have there been any court cases of which we are aware that would support such assessments as being mandated the Office of Special Education and Rehabilitative Services in the Preface to the Final Regulations wrote, "The Department does not believe that an assessment of psychological or cognitive processing should be required in determining whether a child has [a specific learning disorder). There is no current evidence that such assessments are necessary or sufficient for identifying [a specific learning disorder]. Further, in many cases, these assessments have not been used to make appropriate intervention decisions." if the IEP team determines that an assessment of processing skills is needed to help determine a student's special education needs, IDEA permits the team to request such assessments

What are the standards to be applied in determining 504 eligibility?

while a much broader range of conditions may be considered a disability under 504 than under IDEA's 13 categories, not all conditions in DSM are disabling physicians would ordinarily use the International Classification of Diseases to record their diagnoses, and most diagnoses by physicians do not rise to the level of being substantially limiting over the long term, either In addition to determining whether a child has a disability, the 504 committee would also have to determine that, as a result of the disability, the child had a substantial limitation in a major life function that could include one (and only one is required) of the following: - caring for oneself - performing manual tasks - seeing - hearing - eating - sleeping - walking - standing - lifting - bending - speaking - breathing - learning - reading - concentrating - thinking - communicating - working following passage of the Amendments to the Americans with Disabilities Act in 2008, it is now not necessary to show that a major life function is severely limited by the disability to be substantially limiting it is also not permissible to consider mitigating factors in determining whether a child is eligible for 504 protections (although they may be considered in determining what accommodations are needed) a disabling condition that is both transitory (expected to last for less than 6 months) and minor would not entitle a student to 504 protections, but an impairment that was transitory but major or an episodic condition expected to last for more than 6 months that was substantially limiting when not in remission could be entitling children who are only regarded as having a disability under the third prong of the definition of a disability (regarded as having a disability when the child does not) would not be eligible for services but would be eligible for civil rights protections however, a child with a record of a disability (often referred to as the second prong, with the first prong being a current diagnosis) that continues to have effects substantially limiting the child in a major life function could be eligible for both civil rights protections and regular or special education and related aids and services

Best Practices in Applying Legal Standards for Students with Disabilities

while not wishing to begin on a negative note, failure to understand and adhere to the legal standards imposed by the federal government, the state agencies, and the courts can have adverse consequences for school psychologists and their schools in rare cases, unethical behavior can even lead to criminal prosecution

May the principal notify law enforcement?

yes IDEA regulations explicitly allow school administrators to report crimes to law enforcement

Does IDEA provide protections regarding the destruction of records in addition to what are provided by FERPA?

yes IDEA requires that special education records that are no longer needed for the provision of educational services must be destroyed at the parent's request also, schools must inform parents before destroying special educational records the school believes are no longer needed, a right not afforded parents under FERPA we would recommend as best practice retaining special education records for at least 3 years after a child exits from a special education program, as those records may be necessary for auditing purposes and also could be very important in any future legal proceeding however, state laws and regulations would be controlling

Is a reevaluation required before exiting a child from a special education program?

yes both the 2006 IDEA regulations and the 504 regulations require a reevaluation before exiting a student, except, under IDEA, when graduating with a diploma or exceeding the maximum state age for eligibility we would usually recommend as best practice that the IEP team request some additional assessment be conducted, with informed written parental consent, to verify that the child's present levels of performance justify exiting the child even if standardized assessment and grade-level testing both confirm performance within the average range, the team should also consider whether the child would need to have special educational supports continued in order to maintain that progress or whether the student could still qualify for continued services under 504

A child who was limited in English proficiency was identified as having a language impairment based on a recommendation by the speech/language pathologist. Can the IEP team provide the student with special education in reading and writing?

yes however, the team must still consider whether the reading and writing deficits were primarily the result of the identified disability and not the result of English being a second language the Office for Civil Rights investigates discrimination complaints based on national origin under Title VI of the Civil Rights Act of 1964 studies have documented apparent discrepancies in the levels of referral and placement of limited English proficient children in special education, and such discrepancies pose a special challenge for special education in the referral of, assessment of, and provision of services for, our Nation's students from non-English language backgrounds Congress prohibited schools from classifying children as having a disability when the primary cause of their learning problems was that their native language was not English school psychologists should in their reports emphasize the legal responsibilities of the eligibility groups and IEP teams to protect those rights, including the right to have non-special education services sufficient to provide them with sufficient language skills to participate meaningfully in the school's programs

Must a limited English proficient learner be tested in his or her native language?

yes however, while the language of a limited English proficient child's parents might be his or her native language, for the purpose of assessment, the term native language means "the language normally used by the child in the home or learning environment"

If a student has a 504 plan and not an IEP, is a manifestation hearing still required before suspending the child long term?

yes the U.S. Supreme Court decision in Honig o. Doe (1988) requiring a manifestation hearing before a long-term suspension that was subsequently incorporated into the IDEA regulations applied to all children with disabilities the Office for Civil Rights also reiterated that principle as recently as 2010, when it ruled that a principal in Springfield, IL, mistakenly believed a child being served under 504 did not merit a manifestation hearing because he had no IEP the difference between 504 and IDEA is that if the behavior was not a manifestation of the child's disability under 504, then the school system can suspend or expel with no services under IDEA, the school must still provide the child with services enabling the child to progress toward meeting the IEP objectives and to participate in the general curriculum while in another setting

Can information regarding a child's disability be placed in the child's cumulative record?

yes under FERPA, cumulative records enjoy the same confidentiality protections as special education records

May a school system use the same procedures it uses under IDEA to evaluate children under 504?

yes, although it may also establish alternative procedures one obvious disadvantage would be having to pay for the 504 evaluations out of general education funds also, the protections available to school systems under IDEA would not apply if parents had not been provided their IDEA due process rights that could be problematic, especially if the district did not have clear and defensible guidelines for deciding which process to employ