Has your child been denied an IEP or 504? It is so common for schools to say that a child is not eligible for special education because the child has good grades or is too smart. The truth is, this is not a valid excuse for denying special education support.
Sec. 300.101 (c) (1) of the IDEA clearly states: “…FAPE is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.”
Unfortunately most parents do not know about the law, and so they accept it when the school says nothing can be done to support the child in school. So what do you do when they school feeds you this line?
1. Ask the school to put it in writing.
A common tactic for getting support when the school initially says no is to ask for it in writing.
According to section 300.503 (a) of the IDEA, they must provide written notice whenever the public agency “Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.” In other words, they are suppose to give you a Prior Written Notice (PWN) that provides a data-driven explanation of why they are refusing to evaluate for services.
If they put it in writing, and it goes against the law, they can get in a whole heap of trouble. Often they will give in rather than put it in writing. If they still deny that your child needs to be evaluated for support, you can move to step #2. You can also report them to the state for failing to comply with IDEA by not giving you a PWN.
2. Ask for a comprehensive educational evaluation
Write a letter to the case manager and CC the principal. Cite the law above to remind them that good grades do not disqualify a child from special education.
Request an educational evaluation for your child, citing the specific issues your child is having in school. Do not mention a diagnosis, but instead the challenges you see in school and with homework. For example, difficulty being organized or difficulty staying focused. Cite section 300.502 of IDEA which explains your rights for requesting an evaluation.
There are several special education letter templates in the special education resources section of this site to help you with the right formatting for this letter.
3. What if the school says no to the evaluation?
By law, the school is required to evaluate if a parent or school staff member requests an evaluation. If the school says no, once again, write a letter citing the law (Section 300.502 of IDEA) and letting them know they are required to evaluate.
If they say yes, Wrightslaw has some good suggestions in this scenario. Most specifically, be wary of an inadequate evaluation by the school. For example, if the teacher does a ‘screening’ and deems a full evaluation not necessary, this is not following the law. In addition, if a full evaluation is done, be prepared for the evaluation to be biased in favor of the school’s position. In that case, you may want to seek out a private evaluation to help make your case for the child needing support.
4. Don’t give up.
The schools are very good at knowing what to say to make parents stop trying. Just remember to follow the rule of the law and keep emotions out of it. Present the facts, state the requirements by law, and put everything in writing. When the school says no, remember the 3 questions advocates ask to get them to change their position. If need be, hire a special ed advocate to help you get your child the right support.
Hi,
my son got denied testing based on “looking good” grades and behavior while in fact he ended 9th grade with 2.93 GPA. the school never really looked at his grades and the school psychologist never met with my son in person but yet denied evaluation and 504 modification that was based on the Brown ADD scale evaluation. they are sending home the NOREP paperwork. I have been looking for the law in PA stating that the school have to evaluate once a request was submitted and can’t come across it. Also, can I request outside evaluation at district’s expense? at this point I don’t really trust the school’s psychologist and not sure that any testing by the school will be reliable?
You can disagree on the NOREP. The school is required to respond to the request for an evaluation – not grant every request. A C+ is not a bad GPA but if Art & PE are why he’s doing that well, you should push for the evaluation. My son’s C is the result of B’s and F’s. If this is your situation, you have evidence that support beyond what he currently gets might be needed and the school should do an evaluation to see if this is the case. You do not need a lawyer for Mediation but you might need one if you decide on Due Process.
How extensive was the letter where you requested the sp ed eval? You can say you had concerns beyond what they looked at. Did they assess executive Function? That is generally the weak area with ADHD.
That’s because a parent request is not necessarily an automatic evaluation. By law, the district has 10 days to respond. The team is required to meet, review the existing data (many districts shorten this to a RED) and make the determination on whether to test or not based on the discussion going on in the meeting. As a parent, the route to take in advocating for your child is the least restrictive environment and whether or not interventions have not only taken place, but tracked. The progress should be discussed as well as data such as assssment (formal or formal), attendance, grades, classsroom performance both behaviorally and academically, and any other information the team (parent, teachers, any other professional who works with the student) before taking the step of evaluating for Special Education. Special Education should, truthfully, be the last resort. The reasoning for this is, once in special education, the curriculum tends to be “watered down” to aid in the retention of concepts. The longer a child is in Special Education, the less exposure they have the the same curriculum peers are receiving and the effect ripples into high school and beyond. This, of course as determined by the IEP team. Also, I would recommend choosing your advocate wisely. A knowledgeable and competent advocate can be a very valuable asset to the team, but many make the choice to set themselves up as an adversarial type and that can be a detriment to the child. I wrote much more than I was intended, but this is my experience as both a special education teacher in a high school and now a school psychologist.
Nicole, thank you so much for your input on this topic. It is always helpful to see things from many perspectives. I agree with you that many schools water down curriculum when a student is in special education. I have seen scenarios where a student is failing and so the team decides to employ modifications of shortening assignments or excusing assignments to help the student pass the class. This is not educating the student and certainly not employing the best support for that student’s disabilities. Parents need to be on top of this to make certain their child is getting a quality education. And I do think the #1 rule with advocates is to not choose somebody who is going to come out fighting. Preserving relationship with the school team should be a top priority.
The school does not have to evaluate if a parent or teacher or anyone asks. They are required to hold a referral meeting to then determine if the student meets the 3-prong rule:
1. There is a disability or a learning disability is suspected
2. Academics are adversely impacted
3. The student needs specially designed instruction.
If the student does not (based on several forms of data) then they do not have to evaluate.
My family actually won a state complaint and due process reimbursement over this very statement in writing multiple times.
My daughter has been denied an IEP but has a 504 in place. She’s failing every class and they did her evaluation but she’s at a 10th grade level in math. The problem she has is writing. It’s very sloppy and she cannot concentrate long enough to write more than a few sentences. Her second grade teachers timed her span and said it was less than 30 seconds. We’ve been fighting for her since kindergarten and she’s now in 8th grade. I don’t know what to do. I’m so frustrated with this whole thing.
My daughter has a 504 currently but I’m trying to get her an IEP based on a full evaluation done over the summer outside of the school district. The school has been fighting me over her starting the IEP process. They state she doesn’t use enough of her accommodations with her 504. Problem is my daughter isn’t struggling so much with academics due to her dyslexia, but is struggling with her ADD and lack of executive functioning skills. Not sure what to do as she is in 10th grade.
what ever came of this? My children are both smart but on the spectrum and executive functioning skills are horrible. Without an IEP, nothing is goal oriented and measurable and my child will be accommodated but never learn to do for herself. I want her to be able to use an agenda and other ways to organize herself. How can I get her an IEP???
This is not entirely accurate. The federal law also says that there must be a need for specially-designed instruction in order to receive Special Education services. Special Education is not for maximum potential for all students. It is to “level the playing field” for those who cannot work at grade level without the use of these services.
Yes, but as IDEA states, specially designed instruction is defined as “Specially designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction.” You can reference the law here: https://sites.ed.gov/idea/regs/b/a/300.39
If a child is able to compensate, but that compensation means they have to spend 2-3 times as much time on an assignment to get it done, doesn’t that warrant adapting how they are being educated? Just because a student is smart doesn’t mean they don’t need special education. Many gifted children also have disabilities (2E kids) and put great pressure on themselves to be successful. If the school did their job under child find, these children would receive appropriate support for their disability. Unfortunately the schools often use the excuse of good grades to keep that from happening.
Which law are you referencing?
Which law are you referencing? Please share a link.
I wish I knew this 20 years ago. They denied us testing because my son was not failing. I fought for years and finally got some accommodations for him after testing at our own out of pocket expense.
I am a school psychologist and this information is completely false. If we cannot find an educational impact then we deem the child ineligible for services. It is also ALWAYS a team decision. Therefore, the parent (most important person on the team) has to also agree with the child being ineligible. Can we all benefit from special education? Absolutely even a person with an IQ in the surperior range. However, why are we taking devices away from those who truest need it?
Shakia, thank you for your input on this topic. It sounds to me like your school does this correctly. You look for how a disability impacts educational access, then decide support from there. It’s a relief to hear of schools who follow the rules.
Unfortunately in this blog post I am referring to the many, many schools who do not do a quality assessment and as a result many students are missed. Grades are only one measure of a child’s ability to access education. I have seen many cases where teachers grade easier, forgive assignments, or do a lot of informal modifications to move students to the next grade level. So on paper the student appears to be doing well when in fact they are not being educated. Some districts refuse formal assessments and instead look only at class behavior and grades to determine how a student is performing. And of course 2E children can compensate for the disability but often this falls apart as they get into the higher grades, and then schools refuse to assess based on past grades.
Indeed in the county where I live there is currently a class action lawsuit against a district that has not done proper evaluations and many students were denied FAPE as a result. Teachers did informal discussions based on student academic performance and assessments were never done even when students demonstrated need. You can read an article about this suit here: https://www.vcstar.com/story/news/education/2017/11/21/oxnard-school-district-being-sued-class-action-alleging-wrongdoing-districts-special-education-syste/860507001/
I appreciate your support of students and making sure they get what they need to access their education.
Schools do not have enough funding to support most of the needs discussed on this site. Lawsuits are draining public education of desperately needed monies that would be better used on faculty and support. Abuse of IEPs and 504 implementation is one of the many reasons there is a high turnover in teaching and a strong (sadly) lobby for charter schools and anything that will distance public schools from the shadow of the federal government. Our special needs teachers are drowning in every school at every level. No one WANTS to deny a child anything; we are simply spreading butter thinner over too much toast. And the taxpayer squawks if asked for one dime more for schools. A novel idea: cut back on the absurd amount of testing, and allow pre k and elementary teachers to spend time on penmanship, motor skills, and problem solving. I’d bet my house that half of the ADD and anxiety issues would go away. But we don’t let teacher make decisions, just policy makers and others who’ve never done the job.
Shakia – I don’t know what an “education impact” means. Please explain…. Does this mean that if a child is not failing then the school does not have an obligation to help the child???
To qualify for an IEP, a child must demonstrate academic need, AND meet one of the State and Federal qualifying categories. This cannot be “overruled.” IEP assessment is focusing on an “academic disability.” IEP assessment must determine if the lack of academic growth may be attributed to a lack of appropriate instruction in the child’s language. This statement also addresses attendance; if the child is not physically in school to receive instruction, then the child would not qualify for services.
IF a child does not qualify for an IEP, the child “may” qualify for a 504. Again, the child must met 504 eligibility requirements and categories as established by the Federal Vocational Rehabilitation act of 1973.
Overall, schools have to be very meticulous and data driven as all individual case decisions must be well documented to withstand rigorous school district and state special education auditing.
And what defines “good grades?” Using a bell-curve, about 68 percent of the population should be earning grades in the “C” range. (Perhaps grade inflation should also be addressed?) Not every student in school is statistically expected to be earning all “A’s” or “B’s.” Statistically speaking, “C’s” ARE good grades.
Also consider that “gifted” students can also have an IEP due to legitimate educational disabilities, therefore their performance in specific areas may be reflected by grades AND/OR some students legitimately choose to work harder to compensate for their disability.
If requesting outside assessment, be aware of and insist that community agencies use current versions of assessment tools and rating scales. Insist that agencies perform as thorough and complex assessment as schools are required to provide, which includes (at the minimum), one parent report and two teacher reports to make an “EDUCATIONAL” diagnosis. (Medical diagnosis is much different.)
The section of IDEA that is quoted in this article is taken out of context. I feel the author of this article is using this venue as a means of advertising for services, as noted by the very last paragraph.
Anya, thank you so much for provided a much more detailed account in the special education process. I see you are a school psychologist in Wilmar, Minnesota, so I appreciate the experienced feedback. It sounds to me like you are in a school that does the process right. I am so happy to hear that. Unfortunately, these days, that is becoming less common as more districts work hard at avoiding services.
While it’s very true that students students must qualify via a category and academic need, many schools will not even review a student’s challenges because their grades are good. This is a very common reason kids are not even evaluated, let alone supported, and by the time they reach high school they are suffering severely and grades drop. This tactic is commonplace here in California.
I would also point out that I am not advertising for services. If you look on my website contact form and other places, you will see I am no longer available for advocacy services. But I am a parent concerned about a broken system, and I will continue to share my experience and strategies to help other parents overcome the schools that work so hard to avoid provide much-needed support.
I am sorry but the law says doesn’t say academics or academic disability. It covers both academic and non-academic areas which schools address which includes functional and developmental. (https://www2.ed.gov/policy/speced/guid/idea/letters/2007-1/clarke030807disability1q2007.pdf) This misinformation has been addressed the US dept of education guidance letters, OCR rulings, state compliance rulings and due process. Kinda won a major systemic state complaint and later due process over this misunderstanding of education.
Also, my now homeschooled kids do/did get limited services for their disabilities from the local district weekly.
Beckye, bravo to you for choosing to homeschool your kids to get them the best education. I know it means a lot more work for you as a parent, but sometimes the fight with the schools is so overwhelming, homeschool is the best choice. I’m glad to hear the district is giving you some services. I hope they have a charter school or coop that can support your academic decisions so you don’t have to do it all on your own.
The law quoted is a link from the Department of Education. Are you stating the DOE is incorrect?
Our state is currently really pushy about showing “educational need” in order to be placed on an IEP. How can we show educational need without talking about grades?
Your state needs to be reminded that IDEA law says consideration must be made regardless of grades or academic performance. The need should be demonstrated through assessments and other data outside of academic performance. I would do some research to see if any cases have been won in your state based on these grounds. Your state should have a public database where you can look up Due Process decisions. That might help you see what arguments have been made in this arena.
Keep in mind, as well, that having the special education label isn’t always what it’s cracked up to be. In Texas, if a child is in 504, they are eligible for the same services as a student in the special education system, just not the resource room. This also provides the student with further services once they graduate and move on to college, whereas special education and that IEP does not. 504 will follow them, the IEP won’t. Parents often do not know this either. Stay fully informed and discuss things like this with your diagnostician. They are usually well informed in the law.
Thanks for your input, Shawna. It’s actually not true that an IEP doesn’t transfer to college. All students with IEPs are also covered under Section 504. Students with 504 plans are not covered under IDEA though. Section 504 of the 1973 Rehabilitation Act is a civil rights law that ensures students with disabilities have equal access to education. Since all students with IEPs have a disability, they are equally covered under Section 504.
When students transfer to college, having a 504 or IEP plan does not guarantee accommodations in college. They must have had an assessment within 3 years of applying to college that shows they have a disability. The college then gets to decide what accommodations they feel are appropriate. Having a 504 or IEP helps, but it is definitely not as clear cut as giving them the document to get the accommodations.
Although colleges and universities are obligated by the mandates of Section 504, they are bound to Subpart E of the law, whereas Subpart D covers secondary schools. These subparts place significantly different requirements on secondary schools and postsecondary institutions. Thus, as with an IEP, the services outlined in a secondary-level Section 504 plan end at graduation from high school. Although colleges may use these plans in decision making, they are not obligated to follow the requirements of these plans.
source: https://www.ldadvisory.com/college_no_iep_504/
Just want to add that social-emotional must be considered when appropriate, in addition to academics. If a child is earning straight A’s, but she is depressed/anxious getting those A’s, then that is sufficient to warrant an evaluation.
“An evaluation of a student with a disability must include information provided by
the parent that may assist in determining among other things, the content of the student’s IEP. Application of a Student with a Disability, 11-041, p. 12 (citing U.S.C. Sec. 1414[b][2[A]; 34 C.F.R. 330.304[b][1][ii]). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. Id at 12 (citing 20 U.S.C. Sec. 1414[b][3][B]; 34 C.F.R. Sec. 300.304[c][4]; 8 N.Y.C.R.R. 200.4 [b][6][vii]).
The following guidelines provided by the Dept of Education, Office of Civil Rights, written to guide school districts specifically mentions this as one of the things schools cannot do. Print it. Bring it to your meeting. While it is ADHD specific it would hold true for any disability. It is very helpful and after being told our son would be denied a 504 since he got good grades, I referred them to this and they immediately backed down and he got a 504 plan.
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201607-504-adhd.pdf
I am actually somewhat offended by your comments. While you cite the law well and that serves to educate parents about their rights I do take offense particularly to the comment that the school’s evaluation will be, “biased in favor of the school’s position.” As a school psychologist I do not manipulate the results to support any one. The results are what they are. Additionally, the title of your article speaks of being denied FAPE, which is different than being denied an evaluation. While parents certainly have a right to the evaluation that does NOT mean that every outcome warrants special education. Two different topics. How can an IEP be written without evidence of need? How does one decide on goals and primary educational need if none are evident? So no, an evaluation does not always result in special education.That does not mean, however, that the school is denying FAPE.
Maria, thank you so much for your input here. If you read through the comments you will see others in your shoes have said the same thing. Clearly my blog post is not aimed at people like you. My son personally experienced this when in 1st grade. The school psych and speech therapist reports said he didn’t qualify for anything where 4 private assessments said he was in dire need. We hired an attorney and the school then gave us everything we asked for. Clearly there was a bias in the school’s reports. I’ve seen this over and over. Sad but true. I thank you for being a straight arrow for your students! We need more school psychs like you!
I requested that at least a couple of goals tied to core curriculum for her grade level and how to support her to keep up with grade level work, when her reading level is 2 years below. I was told that if she can do grade level work then she doesn’t need special education. There is no plan to get her to grade level. I had to push for the goals expect her to grow by one grade level in one year.
I have a question…my DD a Junior in HS has just been diagnosed with POTS. She is a straight A student but if accommodations aren’t made to keep her in school she will fall behind. Is that a 504 or IEP we need?
Usually with medical conditions a 504 is given. Usually only an IEP is given if the student needs modifications on assignments or special education services as a result of the disability. This blog post may be helpful: https://www.specialmomadvocate.com/iep-vs-504/
My daughter was always super advanced (talking full sentences by 12 mo.) by 4th grade she started having trouble in math when she had to get the same answer a different way… she switched schools in the middle of 7th grade and started having PTSD, Depression, Anxiety (she had been bullied in the previous school). 8th grade I took her to a place for a full neurological evaluation and they diagnosed her with All those above plus skin picking, OCD behaviors, ADD attentive type, executive function disorder, math learning disability, and epilepsy. The last one was shocking and it explained ALL her problems in school with spacing out not remembering, being exhausted… she had gotten great grades on everything she did in class and tests however it was assignments she was not completing that were causing her to fail! She was having them during the day but it was at night she was having them every night all night 1717 brain spikes in 48 hours causing her to not remember things from that day! Her overall IQ was 1 point low average (99). Her problem solving and verbal were very high but her visual memory and something else were very low as well as her processing speed across the whole board. They suggested an IEP for her because of the Math learning disability and also for the epilepsy under “other medical “ the school agreed to use the testing that was done and denied her a IEP saying that because her teachers commented improvements recently in class and that her testing showed above average, high average and low average but no below average so they would not give her an IEP. They also retained her for the year even though she was working so hard being on the medication to bring her grades up. She was 3 points from passing in math, 9 from passing ELA, and 3 from passing science. She wasn’t diagnosed until April 21st. And the medication needs to be increased very slowly due to major side effects! As bright as she is to have gone through all of that. Grades went in Friday and they are going to make her do summer school at $250 a class for 4 classes! Social studies she majorly failed but I wouldn’t mind having her do online summer schooling for that. But $1,000 or repeat is crazy!
This just happened to us yesterday. So disappointed because it took 1 month just to get the meeting.
Our school insisted they cannot test for disabilities such as dyslexia and told us we needed to find an outside source. This was in 2019. Due to covid we were unable to access any Services until last fall. The outside source diagnosed her with a learning disability as well as autism spectrum disorder. The school denied her an IEP because they didn’t believe the evaluation was accurate. It has been medically documented. A board certified psychiatrist made the diagnosis after a 4-Hour evaluation. How is it legal to deny a child an IEP who has a medical diagnosis of autism generalized anxiety disorder and dysgraphia???