Legal Briefs from Matt Cohen
Each month, special education lawyer Matt Cohen answers selected questions from the LD OnLine community regarding legal issues for people with learning disabilities.
Below are the newest questions answered by Matt Cohen. To view all questions, organized by topic, visit the All Questions section.
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Are summer school teachers required to follow a student's IEP?
My daughter has a learning disability in math. She has an IEP that addresses this. She failed math this last school year so she went to summer school and I was told she was failing math there. I mentioned to the teacher that she has an IEP and was told that they did not have to address the IEP during the summer because they have a skeleton crew and don't have adequate staff. Can you please let me know if this is legal? They have failed her in school because they would not provide her help.
Dear Stephanie:
First, if a child is not making adequate progress and loses progress during breaks, he/she is entitled to receive extended school year services over the summer to address the disability. These services should be spelled out in the IEP and should be sufficient to allow the child to make progress.
Even if your daughter was in regular math class, if she has an IEP due to her math disability, it would be likely that she would be entitled to accommodations and other assistance to help her with the math in the regular summer school program.
Further, given that she has an IEP, you should question the adequacy of her math instruction during the regular school year, as the IEP should be designed so that she will make progress. If she is failing, that is an IEP issue, and the IEP team should determine why she is failing and what is needed in order to allow her to make adequate progress.
The school district wants me to use a curriculum that has not been effective for my students with special needs. What can I do?
I have been teaching for 39 years. I am currently teaching special education in South Carolina (it's my third year in the district).
For the past two years I have been teaching in a self-contained cross-categorical classroom (Tier III). I have used my background experience, knowledge, and personal funding to implement programming that has had very compelling test results.
I have not been using the programs required by the district that have already failed the students. This has resulted in a power struggle with district office and this school year I will be required to teach the district required programs. I have made every effort to work with district office and building administration to prevent certain failure for my students. As the district can require me to teach what they may, I want to know what data or avenue would best support myself and parents to provide the programming that will best meet the needs of the students.
How should this best be addressed with the least impact on the students? Would you please be specific to NCLB and IDEA? Thank you.
Richard
Dear Richard:
Your question addresses how to address the school administration's requirement that you teach students with disabilities using a curriculum or methodologies that have not been effective for them.
Under both No Child Left Behind, which applies to all students, and the IDEA, which applies specifically to students in special education, the schools are required to provide peer-reviewed, scientifically-validated instructional programs to the extent practicable. Equally important, under the IDEA, schools are required to provide specialized instruction, including adapting as necessary, the method, content, and mode of delivery of instruction to assure that the student's program is reasonably calculated to provide the student with a free appropriate education.
Assuming you have data on the ineffectiveness of the school's program (and the effectiveness of your methods), you could potentially file a complaint with the Office for Civil Rights for a violation of Section 504 (which also requires the provision of FAPE), you could file a complaint with the state education agency, or you could share information with the parents of your students to inform them about this information and their right to request a special education due process hearing.
You may also conceivably have a right to a grievance through your collective bargaining agreement, but that would depend on the language of the agreement. However, you may wish to get legal counsel before taking any steps that would lead to a dispute with the school administration.
Should accommodations and modifications that affect grading be documented on report cards?
How should a school be documenting accommodations or modifications that affect a student's grades? Should they be noted on report cards/permanent records?
Dear Debbie:
When a school is providing accommodations or modifications that affect a student's grades, these accommodations should be noted in the student's IEP or Section 504 plan. As a general matter, however, school are not supposed to share information on a transcript or a diploma that has the effect of disclosing that the student has a disability or flagging him/her as a special education student, unless the educational program has been modified to such an extent that the student is not receiving a regular diploma.
What rights does a teacher with a disability have?
I am a teacher with ADHD. What, if any, rights do I have? Where should I look for information on handling this successfully in the workplace? There are modifications for students but as far as I know nothing for teachers.
Dear Clara:
You are seeking information on your right to accommodations as a teacher with ADHD. Assuming you work for a public school, your rights are determined by the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, state disability laws, and your union contract.
As a general matter, people with ADHD that are otherwise qualified for their job are entitled to receive reasonable accommodations in employment when needed to address the impact of their ADHD on their ability to successfully perform their work. The Equal Employment Opportunity Commission has regulations and explanatory material on the rights of people with disabilities in relation to employment.
How long does a school have to respond to a parental request for testing?
Under the new IDEA laws, how long does a school system have to respond and/or test a child if a parent requests testing? Is the school required to test?
—Cindy
Dear Cindy:
The time period within which a school must respond to a parental request for testing is determined by state law. Schools are not obligated to test a child just because a parent requests testing. However, whenever a parent submits a request for testing, the school district is obligated to inform the parent of whether the school will do the testing or is refusing to do the testing. If the school is agreeing to the testing, it must explain to the parents what testing is proposed and obtain the parents' written informed consent to the testing.
If the school refuses to do the testing, it must inform the parents of the decision to refuse to test, the reason for the refusal, and that the parents have the right to request a due process hearing to challenge the refusal to test. The IDEA requires that schools complete the evaluation within 60 days of receiving parental consent for evaluation, unless state law specifies some other time frame. You should check your state's special education law for the timeline for testing from the date of consent and whether the state law provides a deadline for responding to the parents' request for testing.
What can we put in the 504 Plan to make sure that my son is not punished for symptoms of his ADHD?
I am hoping that other parents also have this question. I am a Reading Specialist and I thought that I covered the bases with my son's 504 Plan, but I was wrong. He was forced to write his name repetitively on several occasions for forgetting to put his name his paper — that was until the teacher realized it wasn't working. Then she just made him miss part of his recess.
It was the end of the year and my hands were tied because it wasn't in his 504 that he couldn't be punished for this. I do not want him punished for anything relating to symptoms of his ADHD. How can I word this in his 504 to prevent this in the coming years?
I never thought a teacher would punish any child this way. I taught for 14 years and never felt it was appropriate for any child just by the very nature of punishment and reward. I can't help other children, but I can certainly make sure this doesn't happen to mine again.
—Andrea
Dear Andrea:
As a general matter, students should not be punished for academic problems due to their disability. However, your son’s Section 504 Plan, or those of other students, need to be specific and detailed in describing the student’s disability and the ways the disability impacts their academic and non-academic performance.
This sort of repetitive writing task is a throwback to educational practice decades ago, regardless of disability law. However, if the student is forgetting to do something necessary to complete an assignment, that should be identified as a problem area and should be addressed in the 504 Plan.
Under the IDEA, and implicitly under Section 504, schools should address both academic non-compliance and behavioral non-compliance through the use of positive behavioral interventions and supports as much as possible. For example, your son may need instruction on how to develop a routine for checking to make sure the assignment is complete, including having his name. An incentive structure might be helpful to motivate him to pay attention to this task.
It may also be appropriate for the plan to include that the teacher will monitor the assignments to verify that they are complete, rather than punishing the student. If there are actions being taken by the school that the parent disagrees with, these should be raised with the school. While the school may not agree, it is often helpful to include in the 504 plan both what the school will do proactively and those actions or interventions that the school should not do, such as excluding the child from recess.
Notably, the IDEA and Section 504 both provide protection not only in relation to academic activities, but non-academic and extracurricular activities as well. There may be an argument that the failure to appropriately accommodate the possible problem with work completion was also resulting in unfair exclusion from recess or other non-academic activities.
Is a student at a private, religious university protected against discrimination under the Americans With Disabilities Act?
An issue recently came up with a patient of mine whom I have been treating for ADHD since he was 9 years old. He is now 21 and transferred last year from a local community college where he was a straight-A student and had an accommodation plan to a private, Lutheran university. The patient is in a church music director program.
One faculty person at this private university started raising concerns midway through this past year about my patient's behavior during unstructured class time. The faculty member spoke with a counselor at the university to discuss this patient's goofy behavior.
Subsequent to this program, my patient went on a school-related trip with the teacher and she documented my patient's behavior every step of the trip so she could bring her complaints to the administration upon their return. All of the behaviors revolved around silly, "immature" behavior and never involved anything that was dangerous or illegal.
I have talked to my patient about his longstanding pharmacotherapy but he doesn't like how he feels on the medication when he's not tasked with studying. He also has a seizure disorder, so medicating him is tricky. The teacher has taken her concerns to the department and has suggested that my patient isn't fit for the director of church music program.
I know that this situation is likely different than it would be in a public university because of the separation of church and state. Does my patient have any legal recourse?
Dear Dr.:
As a rule, religiously controlled organizations are not subject to the protections of the Americans with Disabilities Act. If the school receives grants or direct financial support from the federal government, it may be covered under the non-discrimination provisions of Section 504 of the Rehabilitation Act of 1973.
Complaints against colleges and universities for disability discrimination can be made to the U.S. Department of Education, Office for Civil Rights, which investigates claims of disability discrimination and could determine if the school is covered by Section 504. If not, there may not be a clear basis in federal law to take action.
However, some state, regional, or local human rights laws or regulations cover religiously controlled institutions even if they are not governed by federal disability laws. The student may want to seek legal consultation from a knowledgeable disability law attorney in your area.
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