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

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

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?

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:

1. The student’s progress during the traditional school year
2. The type of programming the student receives and best practices for that type of programming
3. The need for consistency in schedule
4. The ability to focus more intensely on skills to foster emerging skills
5. 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?

             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

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.