Why Schools Shouldn’t Reject Your Child’s Diagnosis

Recently, I have heard (far too many) stories from parents that the schools are taking away services from their child and/or denying providing services because the school does not believe the child’s diagnosis.  This is wrong and illegal on so many levels, but I will adress the three (3) most important reasons why schools should never deny or reject a child’s diagnosis.

1. Only licensed physicians (medical doctors, doctors of osteopathy, and/or nurse practitioners depending on your state law) may provide a diagnosis and most IEP team members from the school district are NOT licensed physicians (school psychologists are not licensed physicians).

As an example, in New Jersey (and most states have similar laws to my knowledge) a person must have a license to “practice medicine or surgery”.  N.J.S.A. 45:9-6.  Diagnosis is practicing medicine.  N.J.S.A. 45:9-5.1.

If one of the school staff suggests or takes the position that your child doesn’t have a diagnosis that has been confirmed by a physician, ask such person if he/she holds a physician’s license in your state.

2. Many diagnoses are “hidden” disorders or neurological problems, but should not be denied simply because you can’t “see” them.

If a child has Down Syndrome or Cerebral Palsy or Muscular Dystrophy or is an amputee, the disability is likely obvious.  (I prefer not to automatically assume it is.)  However, many disorders like Autism, ADHD, Generalized Anxiety Disorder, Dyslexia, Cystic Fibrosis, Sensory or Auditory Processing Disorder, Krohn’s Disease, Depression, and others are what I call “hidden” disorders because they are often not obvious just observing a child.  This is another reason that only licensed physicians who understand what tests need to be performed in order to make the proper diagnosis should do so.  I’ve heard teachers and school administrators (people who should know better) say, “But [he/she] looks normal!”  What an awful comment about a child with a disability.

Frankly, I can’t understand why school personnel even question this.  For example, I have diabetes – a neurological disease.  Looking at me, you would not know this.  I do long charity bicycle rides of 70+ miles.  Most people would say, “He seems fine.”  While that may be the outward appearance, does it mean that I don’t have diabetes or that the disease does not affect me? It is wrong to deny that.

The huge problem with this is that when services are denied because the school does not observe the disorder, the child’s disorder may have devastating effects.  Children with Autism may have meltdowns; children with ADHD may be distracted in classes; children with Auditory Processing Disorder may become disoriented or frightened; children with Krohn’s Disease may become exhausted; etc.  Once this occurs, access to education is impeded.  This is exactly what IDEA, 504, ADA, and other laws are designed to prevent.

3. Schools may respond that they don’t witness how the disability impacts the education, but they also don’t see the aftermath when the child arrives home.

While it is true that under IDEA and 504, there are two parts to the question: (a) does the child have a diagnosis that fits them within an eligibility category? and (b) does the child need special education and related services or accommodations because of the disability?  20 U.S.C. 1401(3)(A); 29 U.S.C. 794.

However, children have amazing capacity to overcome their disabilities.  In colloqual terms, they can “hold it together” during school hours, but then come home and “let it all out”.  Children know home is their “safe space” and if anxiety, frustration, fear, depression, anger, or similar emotions build up during the school day because the disability is not being recognized by the school, the parents must bear the brunt of those released emotions in the home.

In fact, the U.S. Department of Education issued a guidance letter that states “IDEA and the regulations clearly establish that the determination about whether a child is a child with a disability is not limited to information about the child’s academic performance.”  USDOE Guidance, Letter to Clarke (2007).  That means behavior should also be considered – whether in school or in the home, because remember a parent is a critical member of the IEP team.  20 U.S.C. 1414(d)(1)(B)(i).

Conclusion

Schools should not reject a child’s diagnosis made by a licensed physician because (1) it is unlikely that an IEP team member is a physician; (2) just because they can’t “see” the disability doesn’t mean it’s not there; and (3) they need to consider all effects of the disability, including behaviors at home triggered by the failure to address the issues at school.

If a school rescinds services to your child under an IEP or takes away the IEP because they don’t believe your child has a disability, contact a special education lawyer ASAP.

 

9 thoughts on “Why Schools Shouldn’t Reject Your Child’s Diagnosis”

  1. That’s a good point that most school officials aren’t qualified to dismiss a doctor’s diagnosis. My friend has been concerned about her daughter’s special education program. She may have to hire a lawyer to resolve the issue.

  2. Is there’s law about unexcused and excused absences can be held against a child who is autistic and medical diagnosis of juvenile arthritis.

    1. This is an excellent, but tricky question because IDEA does not deal with absences specifically. That is usually state school law or policy. However, three thoughts: (1) if a child is prone to absences due to his/her disability, then that should be discussed at the IEP meeting and accommodations placed into the IEP; (2) consider home instruction (“homebound services”, not home schooling) for the periods the child will be out. The law says that special education includes instruction in the home if necesasry. 20 USC 1401(29). Check your state law or school policy on homebound instruction; and (3) I have argued that under a legal doctrine called “federal preemption” (that arises out of the Supremacy Clause of the U.S. Constitution) that IDEA protections for kids with disabilities prevails over state truancy law. This argument is currently pending before several courts, so I don’t have a definitive answer for you on this issue, but I would argue that a child whose disability causes him/her to miss school should not be considered ‘truant’. This is not legal advice for your situation, but just some legal positions taken in other cases.

  3. Can a school take away and 1:1 aid when a doctor ordered it and she stated that a child needs a the aid for safety reasons?

    1. This should be addressed in an IEP meeting. If the 1:1 aide was in the IEP, the school cannot take it away without an IEP meeting. Without giving legal advice about this particular situation, the questions you need to ask are: (1) does the school have an evaluation of its own that says the child doesn’t need a 1:1 aide? (2) if yes, how old is that evaluation? (3) can you contest the evaluation with an IEE? (4) if this is a change from a prior IEP, you can reject the proposed IEP and file for due process and invoke stay put. There are so many open issues and facts here. You should consult with an attorney in your local area or state who can look at this situation more carefully.

  4. Are there any actions that parents can take against a school when the school denies that a disability exists and does not recommend testing, if a diagnosis indeed does and has existed for years? I’ve been trying to demonstrate that my child is struggling but school always denied that there is a problem. School eventually approved a neuropsych by my request, but I feel if the school recognized the problem earlier, my son could have gotten help sooner

    1. There is part of IDEA law that is called “Child Find”. A school district has a continuing duty under IDEA to assess a student in “all areas of suspected disability.” 20 U.S.C. §§1414(a)(1)(A) and (b)(3)(B) (“Each local educational agency shall ensure that . . . the child is assessed in all areas of suspected disability”); see 34 C.F.R. §300.304(c)(4) (“The child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities”); and 34 C.F.R. §300.304(c)(6) (“In evaluating each child with a disability . . . the evaluation is sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.”) A teacher “assessment” or “screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services.” 34 C.F.R. §300.302. A LEA’s failure to comply with its obligation to evaluate may constitute a procedural violation of IDEA. See e.g. DK v. Abington School Dist., 696 F.3d 233, 249 (3rd Cir. 2012). The question is whether the school “suspects” a disability.

      It is almost universally agreed that when a school district fails to assess a child in a particular area of suspected disability, it is a procedural violation rising to a denial of FAPE and the parents are entitled to an IEE as an equitable remedy therefor. OSEP Letter to Baus, U.S.Dept.Ed. (February 23, 2015) (“When an evaluation is conducted [by the school district] and a parent disagrees with the evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs;” emphasis added); accord Jana K. v. Annville-Cleona School Dist., 39 F. Supp. 3d 584, 603 (M.D.Pa. 2014) (affirming hearing officer’s award of an IEE because the child was not evaluated and the District had ample reason to suspect that she suffered from a disability); Amalpais Union High School District v. DW, U.S.D.C. N.D.Cal. Civil No. 16-cv-04350-HSG (N.D.Cal. September 21, 2017) (ALJ did not err in finding that failure to evaluate in area of suspected disability was a procedural violation constituting a denial of a FAPE to the child and independent mental health evaluation at public expense was an appropriate equitable remedy in light of the violation asserted); Los Angeles Unified School Dist. v. DL, 548 F. Supp. 2d 815, 823 (C.D.Cal. 2008) (Held, equitable concerns require LAUSD to be responsible for the funding of [the child’s] IEE for failure to assess previously and ordering LAUSD to make arrangements for payment of the assessment); Davis, supra, 244 F.Supp.3d at 50 (“Seeking no assessments as to visual-motor integration and auditory processing is hardly consistent with the district’s duty to conduct testing that targets ‘all areas related to the suspected disability’ and is ‘sufficiently comprehensive to identify all of the child’s special education and related services needs” and ordering the IEE; emphasis in original); Timothy O., supra, 822 F.3d at 1120 (even if [school district] experts think otherwise, “informed suspicions of parents, who may have consulted outside experts,” trigger the requirement to assess, even if the school district disagrees with the parent’s suspicions); In re: Student with a Disability, 119 L.R.P. 45683 (N.Y.S.E.A. Oct. 30, 2019) (state review officer ordered several IEEs because school district did not comprehensively assess child in all areas of suspected disability); and In re: Student with a Disability, 120 L.R.P. 545 (N.Y.S.E.A. Nov. 20, 2019) (SRO affirming OSEP Letter to Baus and held that IHO erred in denying the parent’s request for a neuropsychological IEE at public expense when school district had not tested in that area of suspected disability.)

      Thus, a parent can advise the school of the suspected disability and/or the diagnosis of a known disability. The school’s failure to evaluate once they know about the disability may be a violation of IDEA and denial of FAPE because it is a violation of the “Child Find” obligation.

      1. Thank you… my case is very unique. They approved the IEE last year, but my ex husband cancelled the appointment so the school would not continue to pay for the test. I have final decision making according to our agreement but nonetheless the school did not want to do the testing unless we both were in agreement. Fast forward a year later and I believed my son still had issues, I had to get my lawyers involved and they approved the test again even though they (school and my ex) did not agree anything was wrong. Well it turns out that my son has a learning disability and ADHD. Had we gotten the testing earlier he could have been helped sooner. I am already taking action against my ex but should I take action against the school? Were they within their rights? It’s upsetting that my son is in 5th grade and nobody at the school felt there was anything wrong with him.

        1. I can’t give specific legal advice on your case or what you should do, but I will say that schools have a ‘Child Find’ obligation, which simply means that schools are legally obligated to locate and identify children suspected to have a disability and are obligated to evaluate / test such children. If schools fail to meet this obligation, they are likely in violation of IDEA and a denial of FAPE. However, there is also an obligation on the part of schools to obtain consent from the parents for such testing / evaluation, but usually that is not a sufficient defense if at least one of the parents consents. In other words, schools can not just shirk their duty to test a child because there is a dispute among the parents, but either they or a parent suspects a disability.

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