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.

 

Public Schools Have Made Your Child the Enemy and You, the Taxpayer, Are Funding Their Battle

You pay federal taxes.  You have schools in your town.  Those schools have special education programs.  If you’re reading this blog, you’re probably a parent of a child with special needs.

Well, guess what?  If you have a dispute with your school about your child’s IEP or otherwise not meeting your child’s special education needs, YOU are paying for the school to fight against you and your child.

Guess what else? Even if you don’t have a child with special needs or don’t even have a child in the school district, YOU are still paying to have the school fight against the child with a disability and his/her family.

Yes, you heard that right.  YOU are paying to fight against children with disabilities in your community – maybe your own child.

Let me explain this in greater detail and why the system should change.

Federal Funding For Schools

The federal law known as the Individuals with Disabilities Education Act, 20 U.S.C. §§1400 et seq. or “IDEA” protects students with disabilities and guarantees they receive an appopriate education from their local schools.  This is accomplished and enforced through a federal funding mechanism within IDEA.  If a state receives federal funding for its schools, it must provide special education and related services to children with disabilities in its public schools.  20 U.S.C. § 1412.

In other words, some of the federal taxes you pay goes to fund special education and related services for students with disabilities.  You probably don’t object to ensuring a wheelchair-bound child can access the school via ramps or a child with diabetes having access to the school nurse to administer insulin shots.  You also likely don’t object to a chid with a learning disability receiving extra help in the classroom so they can achieve with their non-disabled peers.

YOU don’t object . . . but the schools are.

Where Does the Funding Go?

Those federal funds for special education – your tax dollars – are supposed to be used to assess if children have disabilities and evaluate their needs, prepare Individualized Education Programs or “IEPs” with special education adn related services to meet those needs, and decide the best location to provide those services for the child.  20 U.S.C. §1414.  Just as non-disabled children can get their education at their local public school for free, the goal of IDEA is to provide the same for children with disabilities, called a Free Appropriate Public Education or “FAPE”.  20 U.S.C. §1401(9).

Still sounds pretty reasonable, right?

How Does A School Make Sure It Provides a FAPE?

Schools are supposed to ensure a child with a disability provides a FAPE via two main mechanisms: (1) assembling an IEP team; and (2) ensuring that the rights of the child are protected and the parents are active participants in enforcement of those rights.  Tax dollars pay for schools to assemble an IEP team, which consists of the child’s parents (and the child if appropriate) and several key school personnel, to discuss how best to provide FAPE for the child with a disability.  20 U.S.C. §1414(d)(1).  States and schools must also put procedures in place to secure the legal rights of the child with a disability and his/her parents.  20 U.S.C. §1415.

This is where the system usually breaks down.  Because the parents and the school staff don’t alawys agree on how the IEP is developed or what services are provided to the child with a disability.  Thereby, a dispute arises.

How IDEA Addresses Special Education Disputes – The Problem

IDEA provides mechanisms to address these special education disputes between parents and schools.  If a school wants to do something with which the parents don’t agree or if the school doesn’t want to do something the parents have suggested, the school can issue a Prior Written Notice or “PWN”.  20 U.S.C. §1415(b)(3) and (c)(1).  Parents can review their child’s education records kept by the school as a check on whether the school is providing a FAPE.  20 U.S.C. §1415(b)(1).

There are other “Procedural Safeguards” in IDEA, but none that causes as many problem as a party’s right to file a complaint challenging the “identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child” a/k/a a “Due Process Complaint.”  20 U.S.C. §1415(b)(6) and (f).

Why is this a problem?  Well, anytime lawyers get involved, there’s a problem, right? [He says half-jokingly, half-seriously.]  Each party to a Due Process case has “the right to be accompanied and advised by counsel.”  20 U.S.C. §1415(h)(1).

Still not a bad thing until you realize who is paying the school district’s lawyer’s bill.  The answer is . . . you probably guessed it . . . YOU ARE!

Paying For The School District’s Lawyer

That’s correct.  Whether attorney’s fees are paid directly by the school district’s Board of Education or through insurance (which is purchased using school budget money), the source of the money paid to the lawyers fight against your child with a disability is tax dollars.  YOUR tax dollars.

Schools are misdirecting funds intended to provide education to children with disabilities by spending it on legal bills or insurance to fight special education cases.

So what does that mean?  It means YOU, the taxpayer, are paying for the attorney sitting across the table from you and representing the school district.  The harder the school district lawyer fights, the more YOU are paying him/her.  The school district never has the incentive to resolve the dispute because they’re not truly paying the bill.

Now, I don’t know if you have ever been in a lawsuit before, but if you have, you know what a financial burden it is to pay a lawyer.  You have the incentive to get it over as quickly as possible because, in all likelihood, you are not Bank of America (or Citibank or Goldman Sachs or some other big bank).  But if you didn’t have to pay for your lawyer, you’d fight to the ends of the Earth, right?  That’s how the school district views it.

Not What IDEA Was Designed To Do

IDEA was not set up to favor the school districts.  In fact, IDEA was designed by Congress to “level the playing field” so that parents had a stronger role in the education of their child with a disability.  Specifically, Congress stated: “The purposes of [IDEA] are to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; to ensure that the rights of children with disabilities and parents of such children are protected; and to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities” among other goals.  20 U.S.C. §1400(d)(1).

IDEA was meant to improve collaboration and cooperation between schools and parents to help children with disabilities receive better education.  Certainly, Congress did not intend for states and schools to use federal funds to wage bitter lawsuit wars against parents and their children with disabilities.

But that is what it has become.  Ask any of my colleagues at COPAA.

So What Can You Do About It? – TAKE ACTION!

If you are like me and fed up with this system of injustice and abuse of taxpayer money, you can take action.  What school districts and their attorneys don’t want you to know is that because the source of funds paying the lawyer fees is public tax money, they MUST disclose such payments to the public who are paying those taxes.

In other words, if you live in a school district that is waging a special education war against a child with a disability, you have the RIGHT to know how much the school is paying its lawyers.

How do you find this out?  You make a Freedom of Information Act or “FOIA” request (or your state’s version of FOIA; for example, in New Jersey it is called the Open Public Records Act or OPRA).

Each state has a website for FOIA requests (I’ve listed a few below as examples) and usually a form to fill out.  On the form ask to see “All fees and costs paid to lawyers by XYZ Schooll District for special education disputes or legal disputes under IDEA for the last 5 years” or something similar.  Prepare for a fight, but you have the lawful right to that information as long as you live in XYZ School District.

New Jersey OPRA Records Request Website and Form

Florida Public Records Act Website and Forms

Texas Open Records Requests Website and Forms

Pennsylvania Open Records Request Website and Forms

For those not listed here, Google “[Your state] FOIA request” and look for an official state website URL.

Go get ’em!

What is a “reasonable accommodation”?

Recently I was asked to explain what a “reasonable accommodation” is.

The person put the question in some context:   Their child’s “special education school thinks a table in classroom with curtain is a reasonable accommodation for his bathroom needs. The class is coed teenagers with different cognitive and physical abilities.”

I doubt this is a “reasonable accommodation”, but let’s explore how we get there.

504 and ADA, not IDEA

First, “reasonable accommodation” is 504  and ADA language, not IDEA.  Under IDEA, a school must develop an IEP that meets all needs of a student with a disability.  This is not an ‘accommodation’; rather it is a legal requirement so that a child may receive a FAPE.

What does 504 require?

Section 504 of the Rehabilitation Act of 1973 (504 for short) is a federal law that prohibits a  facility that receives federal funds from discriminating against a person with a disability.  Under 504, a public school must ensure that a child with a disability has equal access to education and services.  To accomplish that, the school must provide modifications to education and services or a “reasonable accommodation” to such student so that he/she is not discriminated against because of his/her disability.

What does the ADA require?

The Americans with Disabilities Act (ADA) is very similar to 504 and applies to schools equally.  The purpose is to prevent and prohibit discrimination against students with disabilities, so it requires the same as 504.

How is “reasonable accommodation” defined?

Unfortunately, neither 504, ADA, nor their regulations define this specific term.  We know from caselaw that schools are required to make reasonable accommodations according to a person’s disability unless such changes would fundamentally alter the nature of the school’s purpose, i.e. providing educational services.

There are obvious accommodations like making sure there is wheelchair access to all parts of the school for a student confined to a wheelchair.  There are slightly less obvious accommodations like assigning a staff member or student to assure that child in a wheelchair can get out of the building in case of fire or a fire drill.   But this is still reasonable.

Types of “reasonable accommodations”

There are several types of accommodations already determined to be reasonable.  They fall under categories.

a. Accessibility: This includes the wheelchair example above and a special needs bus or transportation.

b. Service Animals: For children who need the assistance of a service animal, schools must allow access to accommodate that child’s needs.

c. Interpreters: Access to sign language interpreters or hearing aids for those who have hearing disabilities or access to other interpretors like Braile materials or interpreters when a child with a disability does not speak English.

d. Auxiliary Aids and Services: A school may need to provide a medical plan or extra access to a nurse for a child with diabetes, epilepsy, or other illness requiring medication and/or monitoring during the school day. Or perhaps a child’s disability requires a smaller classroom, less noise, less distraction, different lighting, etc.

e. Removal of Barriers: If doors or stairways or other typical structural aspects of the school are a barrier to a child with a disability, the school must find alternate ways to accommodate that student.

There are several others, but these are the major categories in which schools must provide accommodations.

Is the accommodation reasonable?

Reasonableness is going to be determined by what the disability is and how it interferes with the child’s access to educational services.  So, accommodation may be decided on a  case-by-case basis, but, again, can’t change the fundamental purpose of the school.

Some guidelines (not legal advice):

– Identify your child’s specific needs

– Suggest an accommodation (don’t necessarily rely on the school to design one themselves, as it may not be appropriate)

– If the school finds your suggestion unreasonable, ask them to state why

– Ask the school to suggest an accommodation

– Provide medical documentation if appropriate

– Ask the school to respond to request in a reasonable time

Is the bathroom example in the question reasonable?

Although the person did not reveal what the disability of the child is, a desk in a room with other children with a curtain does not seem reasonable for numerous reasons: anxiety of the child because of the location; potential health risks because of unsanitary conditions; and may not appropriately address the need of the child.

Final word

Follow the guidelines above (and think of more yourself) to determine a reasonable accommodation that the school should make in order for your child with a disability to access the educational services.  If the accommodation that the school provides seems shocking or inappropriate, it is not likely reasonable.

 

Transportation is a Mandatory “Related Service” for Special Ed Kids That Need It

Under IDEA, transportation is a “related service” that must be provided to kids with an IEP.1  Transportation must also be provided to infants and toddlers as part of Early Intervention Services.2

Transportation includes travel between home and school; between schools (if the child attends more than one campus); travel within and around school buildings (if that is a challenge); and specialized equipment like ramps, lifts, or adapted buses if required to transport the child with a disability.3

What kind of transportation will be provided to my child? This depends entirely on what your child’s needs are. If your child has Sensory Processing Disorder, he/she may not be able to ride the regular large bus to school. If your child is in a wheelchair or has other physical impairments, he/she might require a specially-adapted vehicle. Alternatively, you as the parent may be reimbursed by the district if you provide the transportation agreed to by the IEP team.

Transportation needs should be discussed during an IEP meeting or 504 planning meeting. If the school district needs to send the child with a disability outside the school for services or places the child in an ‘out of district’ program or private school, the school district must also provide transportation to those services or program.

Learn more about how school buses and transportation for your child with a disability fits into planning for your child’s education and IEP in our book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law.


1. 20 U.S.C. §1401(26)(A); 34 C.F.R. §300.34(a).
2. 20 U.S.C. §1432(4)(E)(xiv); 34 C.F.R. §300.34(a).
3. 34 C.F.R. §300.34(c)(16).