View Full Version : IEP testing and a 504 denial


busymomonli
06-05-13, 01:29 PM
Long story short, my ds is about to turn 10. Diagnosed at 8 with combined ADHD, was medicated for about a year and a half. He was on Concerta 18, then 27, then 54. He became increasingly depressed, withdrawn, said he wanted to kill himself. Switched to Aderall, which had the same affect. So at this point he is unmedicated by our choice. He is funny, happy, and much better without the meds.

The problem is school. Its a nightmare really. 10 minutes worth of homework takes an hour or more. Lots of meltdowns, slamming doors. Doesn't want to go to school, forgets assignments, doesn't complete work, unable to transition from task to task, talking, unfocused. You name it. So, based on his report card and his progress reports, I pursued a 504 plan. He is not failing, mind you. His grades have decreased, but not quite to the point of failing. He is behind in reading levels as well. I was denied a 504 based on two things: The fact that he is NOT failing, and his state test scores from the previous year when he was medicated. I presented incomplete assignments, his progress reports, his agenda book listing all missing homeworks, failed tests. They didn't want to know any of it. They said they will revisit it in the Fall, and basically said that if he is failing at that time we can give him some accomodations. The school psychologist compared ADHD to how she "sometimes daydreams while she's driving", imagine that! You just have to snap him out of it sometimes, she said.

So, I contacted an advocate, who told me to request full IEP testing. it is currently taking place. How long ddo they have to complete this? The school year ends in two weeks and I have heard nothing since the request at the beginning of May. And what recourse do I have if they tell me he does not qualify? I'm nervous about it.

ginniebean
06-05-13, 02:10 PM
Your son has a diagnosis of ADHD the school needs a request in writing for the IEP testing, if it is verbal unfortunately they tend to "forget" and later say they have received no request. By law the testing must happen within six weeks of the request.

If your son has no behavioural problems or academic problems they can deny an iep, but they cannot deny your son a 504.

A 504 is a civil rights law protecting children with disabilities and ADHD is a recognized disability. He cannot be denied a 504 so looks like the school is playing ridiculous games. If the child is behind in some areas that needs looking into as an evaluation for an iep.

It's awesome that you have found an advocate, rely on the advocate to go with you to any meetings. They are required to give you time to gather stuff and allow for someone else to be present at these meetings. Sometimes they will try and spring a meetingcatching a parent unprepared.

It sounds like you are doing everything right, keeping all paper trials of how your son is managing. If there are any behavioural complaints please keep those as well.

Document, document, document.

I would e-mail the person who is supposed to be organizing the testing and ask when the process will be complete. It is late in the year so my guess is they want to drag their feet until the next year.

One last thing, your son passing his grade does not mean that he is disqualified for a 504 or for an iep.

Hope that helps.

busymomonli
06-05-13, 02:48 PM
:thankyou:

The request was in writing and they followed up with a written consent form, which I signed and returned immediately. My son has told me that they pulled him out of class for some testing on one occasion. And they sent home a social background form last week for me to fill out, regarding his birth and milestone history, and I sent it back the next day.

I am going to send an email to the director of special ed asking when they expect the process to be completed. I was hoping they would get it all done before the end of the school year. I didn't think they were allowed to push it into the new school year.

My hope was to get something in place before he reaches the point of failing. The psychologist said that he does not qualify for a 504 plan because his disability is not "affecting a major life function". Apparently, learning is not a major life function to her.

Lunacie
06-05-13, 03:06 PM
Bottom line: Kids who have a disability but are getting passing grades can be eligible under IDEA. The law does not mention grades.

The law does not say a child must fail before the school can evaluate to determine if the child if the child is eligible for special education services under the IDEA.

According to IDEA, the child's parent or school staff may request an evaluation.



Do some research so they can't pull the wool over your eyes. The site
wrightslaw has some excellent resources.

busymomonli
06-05-13, 03:20 PM
"Handicapped person" is defined in the Section 504 regulation as any person who has a physical or mental impairment which substantially limits a major life activity (e.g., learning). 34 CFR 104.3(j).

The above is what they were quoting to me. They are saying his ADHD is not limiting a major life activity. This is their basis for the denial. I thought I was informed when I went, and I argued persistently for a good half an hour. But they would not budge. The wrote down some "informal" classroom helps that might assist him. But would not grant an official 504.

Lunacie
06-05-13, 03:37 PM
Unfortunately some schools are very bad about providing accomodations for
students with mental health disorders. Time to step it up a notch.

Go in armed with the information from wrightslaw dot com.

Take in the advocate.

Take in the therapist if you have one.

Tell them you'll have your lawyer contact them.

Go over their heads to the district superintendant.

Go to the media (newspaper, tv, radio).

busymomonli
06-05-13, 03:43 PM
It boggles my mind that schools refuse to help kids who are declining. This is their job!

Thank you. I am prepared to take it to the next level if need be.

Lunacie
06-05-13, 04:05 PM
All the recommendations are to keep it civil, to expect the school to want
to do what's best for your child. If I told you the whole story of what my g-
daughter with autism went through at our local school, you would cry.

We finally got her out of there - it wasn't easy even with the help of
therapists and the school district's own autism specialist. And now it's time
for her to transition to middle school and she's fighting it. Can't blame her.

But I'm done being civil and I'm setting aside my expectations that the
teacher is doing the best s/he can do. The only thing I can do as non-
custodial care-taker is keep pushing her mom (my daughter) to push for
something better.

busymomonli
06-05-13, 04:28 PM
Yes, my hopes were that the school would want to do whats best for him. But now I can see that they are in it for the funding, and for their jobs. It's sad really. I'm sorry for all that you and your granddaughter had to go through.

My son's school is what they call an "open classroom" setting. Meaning, the classrooms are not fully enclosed, but have half-walls. Sort of like a cubicle setting in a office. It's basically one really large room thats been sectioned off with partial walls. This makes it extremely difficult for him to focus because you can hear the teachers that are even two or three rooms away.

ginniebean
06-05-13, 04:41 PM
"Handicapped person" is defined in the Section 504 regulation as any person who has a physical or mental impairment which substantially limits a major life activity (e.g., learning). 34 CFR 104.3(j).

The above is what they were quoting to me. They are saying his ADHD is not limiting a major life activity. This is their basis for the denial. I thought I was informed when I went, and I argued persistently for a good half an hour. But they would not budge. The wrote down some "informal" classroom helps that might assist him. But would not grant an official 504.


In order to get a diagnosis of ADHD it must impair two or more ares of life functioning. Once a diagnosis is made they can't argue impairment.

What they are doing I'd silly and meant to confuse and worse they know it. It's done to discourage the parent fromadvocating.

zette93
06-05-13, 04:49 PM
You may need a better advocate -- the one you had should've told you about the timelines and should know how to fight for a 504. Unfortunately the initial timeline is 60 days, and days they are not in session for a full week such as for summer break do not count. It is likely that legally they can stretch this to the fall.

If they continue to claim he doesn't qualify for the IEP, you can appeal to mediation, and then to due process, which is a court hearing.

busymomonli
06-05-13, 05:17 PM
In order to get a diagnosis of ADHD it must impair two or more ares of life functioning. Once a diagnosis is made they can't argue impairment.

What they are doing I'd silly and meant to confuse and worse they know it. It's done to discourage the parent fromadvocating.

I have a formal written diagnosis by his pschologist. I did not enlist the advocates advice until I was denied the 504 plan. She is the one who suggested I request a full IEP evaluation, which the school agreed to.

I'm worried that if he is denied that, I am left with nothing but the opportunity to appeal.

busymomonli
06-05-13, 05:18 PM
And I totally agree that they are playing games with me. What they don't realize is that they chose the wrong mom to try and intimidate.

Ms. Mango
06-05-13, 11:16 PM
You're doing all the right things, they're just being jerks. What does your advocate say? If she has a lot of experience in your area she may already be familiar with the way your district operates.

Asking for testing is a good strategy. The school has no choice but to consent once you've signed the form. It's possible, with any luck, that the results of testing will undercut their argument that your DS does not qualify for services.

I know you've already had an outside evaluation, but schools don't have to accept it. Also, he doesn't have to be failing before he gets help. But of course, they know that.

Like zette said, they have 60 days--school days. That is to complete testing, write a proposed IEP (if one is offered) and meet with you. That won't happen until next fall.

Get the date off your consent form and start counting days--see if the school's date for completion matches up with yours.

ETA: This thread is getting me riled up. I just about go bonkers when I hear that a parent has been told a child has to fail before anything can be done. Bullhockey! What kind of teacher stands by and watches a child fail before doing anything? They call themselves educators? **** them.

Ahem....getting off soapbox now....

ginniebean
06-06-13, 02:53 AM
I have a formal written diagnosis by his pschologist. I did not enlist the advocates advice until I was denied the 504 plan. She is the one who suggested I request a full IEP evaluation, which the school agreed to.

I'm worried that if he is denied that, I am left with nothing but the opportunity to appeal.

There's actually a lot you can do. You can go above their heads to the school board should they deny your son his civil rights at the very least.

Please visit wrights law and get to know as much as possible.

JenE
06-07-13, 10:09 AM
Just so I understand, you requested a 504 which was denied and now you are requesting IEP testing? Has the IEP testing been done yet? Your son should qualify for a 504 under other health impairment for the ADHD--especially if you are seeing a decline in his school performance.

I can't imagine an ADHD child in an open environment like you described. I don't think *I* could manage it myself! I share a small office space with 2 other people and many days I dream of a private office!! LOL!!

Blanched Dubois
06-07-13, 10:13 AM
There's actually a lot you can do. You can go above their heads to the school board should they deny your son his civil rights at the very least.

Please visit wrights law and get to know as much as possible.

Yep. I had to do this and took my lawyer to the meeting they set up. Go to the District Head of IEP for your county. It worked for me when the schools would not work for my son and do their job.

Good luck. Don't get discouraged.

busymomonli
06-07-13, 09:16 PM
I received a letter that the subcommittee meeting will be June 17th. Ironically, the school psychologist called today and is forwarding me some written results from the testing. She went over them briefly on the phone. She rattled on and I struggled to take in as much as I could. But she basically said he tested in the average range in many areas of learning. He told her he likes to read, which is so not true, he does anything to avoid reading! The areas in which he showed problems included hyperactivity, working memory, study skills, and atypical behavior. She is sending a detailed report with the exact numbers.

His overall score on what she called a "Webster scale" was a 101, average being between 90 and 109. What I don't know is, does any of this qualify him for an IEP? It seems it most certainly would qualify him for the 504 plan that I originally requested!!

It seems to me that if you take a child out of a classroom with 25 other kids and no walls between classrooms, put them in a small room alone, read the instructions to them, tell them to take their time and do their best, they are likely to pass regardless of the severity of their ADHD!

Ms. Mango
06-07-13, 10:33 PM
Could she be referring to the Wechsler scale? That's an IQ test; WISC (Wechsler Intelligence Scale for Children). 90-109 is within one standard deviation of 100 which is an average IQ. So she is correct that a score of 101 would put him solidly in the average range.

Since the public school curriculum is generally geared to the average child, your DS should not be on the verge of failing.

Lunacie
06-07-13, 11:02 PM
Could she be referring to the Wechsler scale? That's an IQ test; WISC (Wechsler Intelligence Scale for Children). 90-109 is within one standard deviation of 100 which is an average IQ. So she is correct that a score of 101 would put him solidly in the average range.

Since the public school curriculum is generally geared to the average child, your DS should not be on the verge of failing.

You mean he shouldn't be failing *unless* he has a disability like ADHD?

Ms. Mango
06-07-13, 11:10 PM
:yes:

Winner, winner, chicken dinner. ;). It bolsters the OP's claim that he needs accommodations.

busymomonli
06-10-13, 02:56 PM
Thanks for all your help thus far. So, is it likely that because he tested "average" in most areas, he won't qualify for any special ed services?

And if they deny an IEP, can I request that they re-evaluate my original request for a 504 plan?

Ms. Mango
06-10-13, 03:42 PM
Here's where you need someone who is on your side (not anyone from the school) to go over the test with you. The IQ test is made up of several sub-tests. Each one is scored, all the scores taken together give you that average of 101. So, even though you were told he tested average, it's important to look at the sub-tests to see if there are areas of strength or weakness. Especially weakness as it might have implications for possible learning difficulties and the need for accomodations.

For example, your son showed problems with working memory It isn't unusual for people diagnosed with ADHD to have working memory issues. How severe is it for your son?

A child with an average IQ should not be struggling as much as your son is. He should be on grade level for reading. Your son is regressing academically. He has a diagnosis, it is a disability. His disability is impacting his ability to perform at school. If not, he would be doing just fine.

I can't tell you what the school will ultimately do for you. Your advocate, if she has worked with this district before, might have more answers for you.

What types of accomodations have you asked for?

zette93
06-10-13, 03:53 PM
Thanks for all your help thus far. So, is it likely that because he tested "average" in most areas, he won't qualify for any special ed services?

I started to say that it is just the opposite. The testing shows that he has the intelligence to do the work, and it is his disability (ADHD) that is causing difficulties. After thinking about it some more, services would be speech, social skills group, OT, a behavior improvement plan, an aide, or extra tutoring by a resource teacher. Do you think any of these are what he needs? I suppose the teacher's time to monitor and initial a homework agenda could be listed in an IEP as a service. (It was for a friend's son, 15 min/wk.) The school will try to avoid granting an IEP, so it's good that you have an advocate involved. If the IEP is denied, there is an appeal process, so one way or another you should be able to get some help in place.

busymomonli
06-11-13, 11:56 AM
I havent gotten the written results yet, but what I jotted down on paper is this:

Overall: 101
Verbal: 104 (abstract: high, vocab: avg, compreh: avg)
Processing Speed: 106
Visual Memory: 120
Working Memory: 86
Perceptual: 100

Behavior rating scale showed the following as high risk:

Inattention
Atypical behavior (impulsivity, withdrawal, zoning out)
Study Skills
Hyperactivity

busymomonli
06-19-13, 09:41 AM
Just an update. My meeting was on Monday. I had pages upon pages of notes and was prepared for a fight. They read all the results, the results of a classroom observation (which was not good), and let the general teacher speak. She did not hold back, saying that she has her two top students on him constantly along with herself and they could not even keep up with him. She said keeping him on task is a full time job. I was thankful that she finally spoke up.

The special ed director asked for more testing. Specifically, a Functional Behavioral Evaluation. But, she had to draw up the consent forms and get them to me and there are two days of school left. So, the testing will not be completed this year. I am left in limbo for the summer. Not to mention his teacher next year will not know him enough to evaluate him correctly. His present teacher said that she would take part, but an entire summer will have passed, so much will be forgotten. I am aggravated.

jrigone
07-03-13, 10:50 PM
like everyone else has said that the school is just trying to wear you down. the understanding I have with ADHD they have to grant you a 504, but not necessarily an IEP. my daughter had all A's & B's when we got her diagnosed and set up her 504. I say in the fall (most likely) when they contact you to come in for your meeting (which in NC, (if not federally) they need to give you at least 10 day notice for it) make sure you have all documentations, bring your advocate, and make sure you mention that you feel you are giving him a disservice and think it might be wrights law violations by not granting him accommodations.

Mom2GnJ
08-14-13, 05:42 PM
I hate to hear this. I'm so sorry. Hope the coming school year moves more smoothly!

Allegra113
12-04-13, 02:12 AM
I am a special education teacher. I also specialize in not only teaching LD and SIED students, but also assessing students in qualifying for special education services.

There is so much they are doing wrong by your son! I also have adhd. If I hadn't had accommodations in order for me to access an equal education I would not be as successful as I am today.

One thing a lot of educators do not understand is that equal opportunity to access education does NOT look the same for everyone. If your son is struggling and working 75x harder than other students and still not able to show what he can do without accommodations, you need to demand a 504 plan. If you have the medical records of diagnosis they cannot deny this. That will protect him and allow for accommodations and modifications.

Wrightslaw is an amazing resource for parents. Here are some thoughts:

"Children with Other Health Impairment & Learning Disabilities

Most children who have ADD/ADHD are found eligible under the "Other Health Impairment" or "Specific Learning Disabilities" categories.

The legal definition of "Other Health Impairment means having limited strength, vitality, or alertness, including heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that ... is due to chronic or acute health problems such as ... attention deficit disorder or attention deficit hyperactivity disorder ..." (See regulation 300.8(c)(9), Wrightslaw: Special Education Law, page 194) "

"A child with a disability is not automatically eligible for special education and related services under IDEA. The key phrase is "who, by reason thereof, needs special education and related services."

Does the child's disability adversely affect educational performance? To be eligible for a free, appropriate public education (FAPE) under the IDEA, the child must have a disability and must need special education and related services. (see pages 20-21 in Wrightslaw: Special Education Law)

For the legal definition of a "Child with a Disability," see pages 20-21, 49-50, 193-194 in Wrightslaw: Special Education Law or go to the Law & Regulations section of IDEA 2004 and read the definitions in Section 1401.

If the child has a disability but does not need special education services, the child may be entitled to protections under Section 504 of the Rehabilitation Act. Section 504 is a civil rights statute that protects individuals with disabilities from discrimination for reasons related to their disabilities. To learn more about Section 504, read Chapter 7 in Wrightslaw: Special Education Law."

Please update to let us know what they are doing for you this year.

busymomonli
12-04-13, 10:49 AM
Hello, and thanks for responding. I was finally awarded the 504 plan, but not before jumping through many hoops to get there.

After the refusal, I requested (in writing) a complete IEP evaluation. After putting my son through many, many tests, we met to discuss the results only to be told that he does not have a learning disorder (not a surprise since we knew this going in), and I was told at the meeting he needs a 504 plan! By now, however, he was failing, which based on the trend he was on was expected and the reason I was requesting the 504 plan to begin with. My hopes were to get it done in order to PREVENT him from failing. But, alas, his grades continued to decline as expected and now we have the 504 in place.

"The key phrase is "who, by reason thereof, needs special education and related services."

This phrase in your post above is where the school was giving me a problem. They seem to believe that NEEDING special education or related services = failing. I know this is not the case, but this seems to be the criteria they use in determing 504 eligibility. Wrong, I know, but man are they stubborn!