Kraft Law

Can the School District Require a Medical Diagnosis to identify a child under IDEA or 504?

2010-05-14T22:12:47Z

The short answer is no. But that doesn’t mean that I haven’t received a number of phone calls during the past school year asking this very question. Somewhere, school districts have received information which leads them to believe that in order for a child to be determined eligible for an IEP or a 504 plan that parents must first provide the school district with a medical diagnosis.

Two examples can illustrate this question:

First, a two and a half year old child has been diagnosed as having PDD-NOS and is currently receiving Early Intervention services. The child is referred to special education and is determined to be a child with a disability. The district proposes the identification of Developmental Delay because the child does not have a DSM-IV diagnosis of Autism.

Second, a child has a history of anxiety and school avoidance. The child is now in high school and has not been able to complete a full year of school since the child was in 5^th grade. The child has been referred to special education a number of times but never identified because the child does not have the medical diagnosis needed to identify a child with Emotional Disturbance.

According to the NH DOE, the New Hampshire Rules for the Education of Children with Disabilities does not require a medical diagnosis for eligibility under IDEA.

Parents’ Attorneys and Advocates are often very clear in explaining to parents that a medical diagnosis does not equal an educational identification. As the NH DOE and OCR have explained, an educational identification cannot be denied for lack of a medical diagnosis. If, however, as part of an evaluation, the team determines that a medical evaluation would provide information necessary to determine eligibility or appropriate supports and services, then the district must provide the medical diagnosis to parents at no cost.

It’s IEP season! Tips for preparing for the IEP team meeting

2010-04-25T21:21:07Z

As the parent of a child with a disability, it is likely that you will attend an IEP team meeting within the next month or so to determine the appropriate programming for the 2010/2011 school year. Here are a few tips to help parents of children with disabilities be effective advocates:

If you are not already organized, now is the time to get organized. There are numerous organizational systems that work well for educational records – some like three ring binders and others like accordion files. The system is not as important as how comfortable you are using it and how easily you can find the document you need. The information needs to be readily accessible because you never know when you are going to need to remind the team of a decision made at a previous meeting, the progress made on a particular goal, or that the goal has been repeated for three years in a row.
Look at the progress report from the last reporting period before the meeting to see how your child is progressing on the current goals. If there hasn’t been the expected progress, think about the impact that will have on the next IEP and the next grade level curriculum.
Request a copy of the draft IEP before the team meeting. The district is allowed to prepare a draft IEP before the team meeting, and most do. This does not mean that the IEP is proposed and that changes can’t or won’t be made. You are a member of the IEP team and your input is important. Compare the draft IEP to the current IEP progress reports and the last evaluations. Make notes of your concerns or questions.
If you are not able to get a copy of the draft IEP, then review the progress reports and past evaluations. List your child’s strengths and challenges as well as the present levels of performance. Avoid generalizations, such as “Johnny is reading below grade level.”
In NH, the IEP includes a section for Parents to list their concerns for improving your child’s educational programming. Draft this statement before the team meeting and either provide it to the case manager before the meeting or at the meeting. Remember that this section is the parents’ section and therefore you should be able to include any information you deem appropriate. Also remember, that this section is not the only place that you have input, but it is the only section that is yours alone.
Review the Procedural Safeguards.
If you believe there is a concern that you will not be able to resolve in the team meeting, consider consulting with a special education advocate or attorney.
If you decide to bring someone with you to the meeting make sure you and the other person have a clear understanding of his or her role. It is okay to bring a friend or relative to act as moral support, but the person should have knowledge of the special education process and your child if he or she is going to participate in the discussion.

While at the meeting, remember:

The school district may ask you to sign an excusal form for members of the team. The school district is required to give you 72 hours notice, or as much notice as is possible given the circumstances, that the team member will not be able to attend and that team member is supposed to provide written input for the meeting. If the district has not provided you with notice that the essential team member will not be available and the team member has not provided written input, you are not required to excuse the team member. If you don’t agree that the essential team member should be excused from the meeting, then state so, even if it means the meeting will have to be rescheduled.
The NH Rules allow a parent 14 days to sign special education paperwork, including paperwork regarding eligibility, evaluation, IEP and placement. A parent is not required to sign any paperwork at a meeting. If you do sign anything at the meeting, make sure you have read it fully and understand what you are signing; if you have questions ask for clarification.
Remember to be courteous, even when you disagree.

Does Your Child Qualify for Extended School Year Services?

2010-04-06T21:10:46Z

When developing an IEP for a student with disabilities, the IEP team must consider whether the student’s special education needs can be met during the traditional school year. If the child requires an extended day or an extended year in order to receive a Free Appropriate Public Education (FAPE), then the school district is required to provide the student with programming. Generally, this is referred to as Extended School Year Services (ESY).

ESY can take any form that will ensure FAPE and should not be dependent upon the school district’s schedule, services, availability of personnel, etc. – in other words ESY, like the IEP, should be based on the child’s individual needs and not the convenience of the school district.

The IEPs used by many NH school district’s include a section to consider ESY, but it is not uncommon for that section to contain language indicating that the decision regarding the need for ESY will be determined by a specific date. April seems to be the month to discuss ESY. Regardless of whether the discussion is taking place when the IEP is first developed or at a later date, the discussion is part of the IEP process and therefore must take place within a team meeting. At the IEP meeting that discusses ESY, the team should consider the student’s needs for ESY, including degrees of progress, emerging skills, regression over breaks, length of time to recoup skills lost over breaks, the nature or severity of the disability, interfering behaviors, as well as any other factors the team determines appropriate in consideration of whether FAPE will be provided.

ESY is not a one size fits all program. ESY is not reserved for only specific categories of students with disabilities. ESY is not an enrichment program. ESY is not determined by administration based on NECAP, NWEA, DRA, or any other acronym’s scores. ESY does not have to take place in a school setting. As with all IEP discussions, ESY discussions should be based on the student’s needs and a focus on how those needs will be met.

When preparing for the IEP team meeting to discuss ESY, consider:

The student’s progress during the traditional school year
The type of programming the student receives and best practices for that type of programming
The need for consistency in schedule
The ability to focus more intensely on skills to foster emerging skills
The need for social interaction in a structured and supported setting

For more information regarding a ESY, see NH DOE Memo 44.

Have a question about a Special Education Issue?

2009-12-03T20:00:54Z

In a previous posting, I offered the Guidelines for Choosing an Advocate as developed by COPAA. Although I represent Parents, Advocates play a large role in special education and often are the Parents first guide through this process. But sometimes a Parent doesn’t need continued Advocacy support; sometimes a Parent simply needs to ask a question.

To my delight, I discovered a new blog The Mulberry Bush. For those of you who have not had the pleasure of meeting Brice Palmer, he has dedicated that past 20 or so years to helping Parents with Special Education concerns. Rather than simply spout information, The Mulberry Bush offers Parents, Advocates, and presumably Attorneys, a forum to ask a question and receive a common sense answer.

So go ahead – ask a question!

URGENT REMINDER: NH Special Education Rules Being Revised – Time Sensitive Alert

2009-11-30T15:07:22Z

The New Hampshire Rules for the Education of Children with Disabilities are in the Rule Making stage which requires an opportunity for public comment. A meeting is scheduled for December 9, 2009 at 12:30 at the NH Department of Education on Pleasant Street in Concord, New Hampshire.

This is an opportunity for all who have an interest in the proposed changes to let your voice be heard. Bonnie Dunham, of Parent Information Center, has developed a short "unofficial" summary document of the changes that are being proposed. Ms. Dunham has also developed a sample letter to follow to provide written input.

Plan to attend the public session on December 9, 2009 at 12:30 to let the Department of Education receive your input to these important changes to the NH Special Education Rules.

Transition Planning for Special Education Students

2009-11-18T05:27:10Z

Transition services, like most services provided under an IEP, are individualized to a particular student and are based on the student’s strengths, weaknesses, and personal vision for post-secondary opportunities. Transition services for a student with significant cognitive disabilities will be very different for the student with ADHD. And when the transition services start should be based on the student’s needs.

The IDEA requires that beginning not later than the first IEP to be in effect when the student turns 16 or younger if determined appropriate by the IEP Team, and updated annually, thereafter, the IEP must include--

(1) Appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; and

(2) The transition services (including courses of study) needed to assist the child in reaching those goals.

NH rules require that an IEP include a statement of transition services that meets the requirements of 34 CFR 300.43 and 34 CFR 300.320(b), with the exception that a plan for each student with a disability beginning at age 14 or younger, if determined appropriate by the IEP team, shall include a statement of the transition service needs of the student under the applicable components of the student’s IEP that focuses on the student’s courses of study such as participation in advanced-placement courses or a vocational education.

Transition services are designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including postsecondary education, vocational education, integrated employment (including supported employment); continuing and adult education, adult services, independent living, or community participation.

Although NH IEPs have a section entitled Transition Plan, the IEP is viewed as a whole document and services which fulfill the requirements of Transition services can appear anywhere in the IEP.

For more information regarding Transition Planning visit NHEdLaw and Parent Information Center.

Definition of Child with a Disability under IDEA

2009-11-04T02:58:48Z

The Individuals with Disabilities Education Act and the NH Rules for the Education of Children with Disabilities have defined a child with a disability as:

a child evaluated in accordance with IDEA as having
- mental retardation,
- a hearing impairment (including deafness),
- a speech or language impairment,
- a visual impairment (including blindness),
- a serious emotional disturbance (referred to in this part as “emotional disturbance”),
- an orthopedic impairment,
- autism,
- traumatic brain injury,
- an other health impairment,
- a specific learning disability,
- deaf-blindness, or
- multiple disabilities,

The disability categories are also defined within the law and in most cases the educational definition is not the same as a medical diagnosis.

For example the evaluations considering eligibility under Emotional Disturbance would not include diagnoses from the DSM-IV, but rather

a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:
- An inability to build or maintain satisfactory interpersonal relationships with peers and
- A tendency to develop physical symptoms or fears associated with personal or school

Notice there is no need for an underlying diagnosis such as depression or mood disorder.

It is important to remember that a medical diagnosis does not automatically qualify a child for special education. Even if a child has a medical diagnosis, the evaluations and team have to determine that because of the disability the child requires special education and related services. Special education is defined as specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability. Specially designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children.

New NH Special Education Rules Have Been Proposed

2009-10-18T01:15:49Z

The Individuals with Disabilities Education Act (IDEA) was reauthorized in 2004 and renamed the Individuals with Disabilities Improvement Act, although the statute states that we can continue to call the reauthorized act IDEA. IDEA is considered the minimum a state must do when educating children with disabilities; each state can either follow IDEA or offer additional rights and protections. New Hampshire has always afforded children with disabilities more rights than required by IDEA. The state laws, or statutes, can be found at RSA 186-C. As the name implies, the New Hampshire Rules for the Education of Children with Disabilities (Ed. 1100) are the rules based on the state statutes that govern the education of children with disabilities.

Although the New Hampshire Rules for the Education of Children with Disabilities were revised in June 2008 and amended in June 2009, there are still some areas that need to be aligned with the IDEA. Therefore, the New Hampshire Board of Education agreed on October 14, 2009 to enter into rule making for Ed 1100. As part of rule making, the board must hold public comment sessions. A public session is scheduled for December 9, 2009 at 12:30 PM.

For more information visit the NH DOE’s website.

What is Child Find?

2009-10-12T02:39:04Z

Every school district is responsible for locating and evaluating every child who is suspected of having a disability within the geographical boundaries of the school district to determine if that child requires special education. The school district is responsible for developing policies and procedures that ensure any child who is potentially a child with a disability attending school and for any child 2 ½ years of age up to 21 years of age residing within the school district’s jurisdiction is referred to the IEP team. Although special education does not begin until a child is 3 years old, the school district is supposed to make sure that the evaluations have been completed and an IEP can be implemented on the child’s 3rd birthday.

The policies and procedures must include mechanisms to allow for at least annual communication, coordination, and/or consultation with private schools, area agencies, family centered early supports, community agencies and programs, group homes, courts, health care facilities and state institutions.

Any one can refer a child to special education. The person does not have to work for the school district or be the parent or guardian of the child to make the referral. Some reasons why a child could be referred are:

1.    Failing to pass a hearing or vision screening;
2.    Unsatisfactory performance on group achievement tests or accountability measures;
3.    Receiving multiple academic and/or behavioral warnings;
4.    Repeatedly failing one or more subjects;
5.    Inability to progress or participate in developmentally appropriate preschool activities; and
6.    Receiving service from family centered early support and services.

Child find creates an affirmative duty for a school district to ensure that all children suspected of having a disability and in need of special education are referred, even if the child is receiving passing grades and advancing from grade to grade.

The school district is required to provide data to the NH DOE regarding the children who were found eligible and those found ineligible for special education. As part of the data collection, school districts must report on the children who were found eligible but who are not receiving services from the district.

Child find ensures that teachers, parents, and the community have the necessary information to recognize when a child should be referred to special education.

Children with Disabilities Placed by Parents in Private Schools: Unilateral Placements

2009-10-05T00:01:50Z

Where a child with disabilities attends school is determined by the IEP team after considering the supports and services outlined in the child’s IEP. Special Education laws envision the decision being cooperative, collaborative, and based on the child’s unique and individual needs. But sometimes the team can’t reach consensus; the school district is then required to propose placement to the parents. If parents disagree with the proposed placement, they can either initiate a due process hearing or make a unilateral placement.

There are very specific rules that must be followed when parents make a unilateral placement. Failure to follow the rules could mean that parents’ right to reimbursement could be reduced or denied.

Parents are required to give the school district notice that they do not believe the school district has provided a Free Appropriate Public Education (FAPE) to their child. The notice can be written notice given 10 business days before the unilateral placement, notice at the last IEP meeting attended before the unilateral placement, or both. This gives the IEP team an opportunity to discuss parents concerns and address the concerns before the child moves to another school.

If the school district notifies parents through Written Prior Notice of the intent to evaluate the child, parents must make the child available for the evaluation or risk reimbursement being reduced or denied. This means that if the team plans an evaluation and parents receive Written Prior Notice of the decision to evaluate the child, parents should be aware that making the unilateral placement while the evaluation is in progress or failing to make the child available for the evaluation could result in reimbursement being reduced or denied.

Now, you may have noticed that I used the phrase “could result in reimbursement being reduced or denied” quite a bit. The remedy of reimbursement has not always been allowed under special education laws. The Supreme Court, in Burlington, determined that even though IDEA did not specifically allow parents to receive reimbursement for a unilateral placement that to not allow the remedy would be unfair. Because the law did not provide a remedy, the Court looked to the rules of equity to allow a remedy. IDEA now allows reimbursement, but the equitable considerations regarding whether parents should receive reimbursement remain and hearing officers will consider whether parents acted reasonably when making the unilateral placement.

While failure to give notice, act reasonably, or allow the district to conduct an evaluation could result in reimbursement being reduced or denied, the following exceptions could prevent a hearing officer from reducing or denying reimbursement: the district prevented you from giving notice; the district did not provide you with the requirements to give notice; giving notice would likely result in physical or serious emotional harm; or parents are illiterate.

Parents must initiate a due process hearing on the issue of reimbursement within 90 calendar days of the unilateral placement.