Dear ADDitude: Why Has My Child's IEP Been Denied?

"What criteria do most schools use to determine if a student with documented ADHD is eligible for an IEP instead of a 504? My son has a 504, and really would benefit from a higher level of resource support, but he has been denied an IEP twice."
Success at School | posted by Eileen Bailey, Susan Yellin

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ADDitude Answers

There are two laws governing special services and accommodations for children with disabilities: the Individuals with Disabilities Education Act (IDEA), and Section 504 of the Rehabilitation Act of 1973. These laws are different, and children with ADHD often receive services under Section 504 because the requirements for IDEA are more stringent.

Under IDEA, ADHD falls into the classification of "Other Health Impaired" (OHI). Because IDEA is very specific, children who have been diagnosed with ADHD only are often denied services under this law. If your child has another challenge, such as a learning disability, this law might apply. If your child’s ADHD is so severe that it causes major impairment, he might qualify under IDEA.

To be eligible for services under Section 504, you simply must have a disability. A disability is considered a physical or mental impairment that “substantially limits one or more major life activities.” Learning is considered a major life activity, so if ADHD limits your son’s ability to learn in an educational setting, he should qualify for accommodations or services under Section 504. It appears that this is what your school's special education team has determined.

The easiest way to think about the differences between an IEP and a 504 Plan is this: if a student needs accommodations only in a regular classroom, he will generally get a 504 Plan. If the student needs special education services outside of a regular classroom, he will qualify for an IEP.

When your school assigns your child to a 504 instead of an IEP, it can be hard for some parents to hear — especially if you had your heart set on an IEP. The process of applying for and securing accommodations can be a roller coaster ride, and a 504 can feel like a "consolation prize" or "Special Ed Lite" to parents who are tired of seeing their child struggle. Parents often say that they know that with a little extra help, their child would be fine — and in your particular case, you say you feel that the 504 plan is not enough.

To remedy this situation, the first thing you should do is ask for a copy of the assessment, and all information, showing that your child is only eligible for a 504 plan. Your school should be able to provide you with a detailed explanation and documentation to back up their decision.

Once you have the documentation, you have the right to make a formal request to the school district for an independent educational evaluation (IEE). An IEE may show that the student has disabilities that were not picked up during the school evaluation. The quality of school district evaluations varies and not all districts do a good job of assessing your child’s strengths and weaknesses.

The IEE is completed by a qualified professional outside the school system. Once you make this request (in writing), and send it to the head of the 504 team, the school can accept the request and pay for the IEE. If the school doesn’t believe an independent evaluation is necessary, it may file for a due process hearing. When the school requests a due process hearing, you must receive notice of their request. The notice must include:

- The name and address of the student
- The name of the school
- A description of why the request is being made
- A proposed resolution

The notice must be filed with the state or local education agency.

Once all the proper paperwork is filed, both the parents and school district attend a mandatory resolution session. The formal resolution session may be waived if parents and the school agree on services at an informal mediation session held at the school or district office, to be scheduled within 15 days of filing the due process request. At this session, the school may agree to reclassify a student under IDEA. If both parties accept the resolution, an agreement is drafted, and both parties agree to abide by that agreement.

If no agreement is reached during a resolution or mediation session, a due process hearing is scheduled with an independent hearing officer or a panel of impartial hearing officers. Either party may appeal the decision of the due process hearing.

There are timelines in place for due process hearings. The hearing officer must make a decision within 45 days of the original request for a hearing. If an appeal is filed, it must be done within 90 days. A decision on the appeal must be made within 30 days of the request for a review of the decision.

You can also choose to have an IEE completed privately, at your own expense. You may bring the results of the IEE to the school and request that these be reviewed and a new decision made. The IDEA requires that your IEE be considered by the IEP team, but does not require that it be determinative.

For more on fixing broken IEPs or 504s, go here.

Posted by Eileen Bailey
Freelance writer specializing in ADHD-related topics


ADDitude Answers

In my view, there's no harm in starting with a 504 and moving to an IEP later on. I like to look at it like this: You can always move from the smaller law to the bigger law, because the smaller law is under the umbrella of the bigger law. In other words, every student who has an IEP could also qualify for a 504 — though not necessarily vice versa — and just because your child was assigned to a 504 doesn't lock him out of an IEP for the rest of his life!

What I suggest is to be flexible on this, at least at first. Be willing to say, "All right, let's see if you can meet my child's needs with a 504 plan. I'm going to give it six months, at which point, I'm going to come back and ask for an IEP, because I believe that my child needs more than you're willing to give under a 504. And if you won't give me an IEP, I will file for a hearing."

Hearing — that's the magic word to use in this situation. When you tell them you're "going to file for a hearing," that means you're starting the appeals process. They'll have to bring in their lawyer, you'll have to bring in your lawyer, and you're going to argue with them. It's not fun, and it's not always successful, but it often gets their attention.

If, after your set period of time, you find the 504 plan isn't working for your child, request a meeting to reassess. If the school is still not open to an IEP, follow through on your threat and request a due process hearing. At the hearing, you'll be able to fully present your child's case and have it adjudicated by an impartial observer. For more on initiating a hearing, read this.

Posted by Susan Yellin
Director of Advocacy and College Counseling Services at The Yellin Center for Mind, Brain, and Education, an innovative learning support and diagnostic practice in New York City.


A Reader Answers

There are special requirements to qualify for an IEP. A child has to have more than just ADHD to qualify. My son wasn’t getting bad grades, he wasn’t behind, and he doesn’t have any other issues, so he didn’t qualify for an IEP. He did qualify for a 504, and I think it's been good for him. The 504 will help give him more time, break up assignments, give him more breaks, etc. These were all things his elementary teachers did anyway, but when he started middle school that changed. For high school, the 504 team may allow him to use software to help him take notes.

Don't write off the 504 just yet! I see any extra help as something that will help my son succeed. He sees it as being able to get the help he needs without feeling stupid. He’s glad he will finally get the support he needs.

Posted by adhdmom2000


A Reader Answers

Was he tested through the school system? My son has ADHD and would have been denied an IEP, but I pushed to have the CST test him and it turned out he had a huge discrepancy. We never would have guessed he had an actual learning disability in addition to the ADHD. This qualified him automatically for an IEP, and we didn’t give it a second thought. My advice is to get your kid evaluated by an outside source — take all the help you can get!

Posted by LisaVRN


A Reader Answers

My son has an IEP, but unfortunately I had to fight our school district for three years — and hire an attorney to sue the school district — before he got it. The school was found to be negligent for not providing the services that he needed and was entitled to. He did get his services based only on his ADHD, designated as an “Other Health Impairment.”

I am thrilled to say that he is catching up now that he is in fifth grade (the IEP fight happened in second grade). My suggestion is that if you decide to fight for an IEP, have your child involved in the process and keep on top of the school district, because you are the only person who is going to be an advocate for your son. Best of luck.

Posted by sunflower24


A Reader Answers

I would give the school a chance to conduct a proper IEE. If they do not, or they choose to ignore the result, I would definitely get an independent evaluation (your son’s doctor should be able to recommend someone in your area). Once you have those results I would contact the director of Special Education at your local Board of Education. I promise they will not overlook the facts.

In fact, if requesting an IEE still yields no results, you may have grounds to sue the school. If you win, they will have to pay for your son to attend a private or public school of your choice and pay for his transportation to and from school — if you have the documentation to back up your claims. Side note: they can NOT legally withhold any documentation they have concerning your son. His teacher is required by law to provide documentation to back up any claims she is making — the same as a doctor would if it concerned a medical condition or treatment.

Also, when you do finally get an IEP for your son, they have to provide you with documentation that they are providing the services for your son. I would request it at regular intervals, even if he’s doing well, just to make sure they are doing their jobs.

Good luck!

Posted by deanna42431


This question was originally asked on an ADDitude expert webinar. Listen to the full recording here.

 
 
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