Ask the Experts

Q: Can the School Refuse to Evaluate My Child?

Parents of children with ADHD and LD may have to advocate for their rights at school — an attorney explains protections under the law, and how to get them.

Q: “My son’s school is hesitating about formally assessing him because he is ‘making progress,’ even though he still struggles a lot. How can I get the school to assess him for learning disabilities?”

If you have met with school officials to explain the ways in which your son is struggling and they still decline to conduct an evaluation, remind them of their obligation to evaluate all children who are suspected of having a disability, something the IDEA calls “child find.” The Supreme Court, in a case regarding standards for IEPs, has held that mere “de minimis” progress is not sufficient when looking at how a student should be moving ahead from grade to grade. The fact that your son may be making some progress does not mean that he doesn’t have a disability that would qualify him for special education services or accommodations under the IDEA or Section 504.

If the school still refuses to conduct an evaluation, you can commence a hearing before a State Hearing Officer to compel the school to conduct an assessment. It’s an administrative hearing compelling the district to evaluate your child. In addition, or alternatively, you can pay for a private assessment of your son. In the latter case, the school is required to consider, but not necessarily follow, the findings of the assessment.

Once they’ve conducted the public evaluation, if you disagree with it, then you have a right for them to pay for a private evaluation. But if they haven’t done a public evaluation, that right doesn’t yet exist. Not to be confusing, but it’s a confusing subject.

[Free Sample Letter to Request an IEP/504 Evaluation]

Susan Yellin, Esq., is an attorney and mother of three. She is the director of Advocacy and Counseling Services at The Yellin Center for Mind, Brain, and Education, a New York City-based practice that provides educational evaluations, management, and guidance for students from grades K through graduate school. She is a member of the ADDitude ADHD Medical Review Panel.