Adventures with Legalities

Also known as I’m supposed to do WHAT now?

It has come to my attention that the more I know – the more I need to know. While that may sound trite to many, it’s absolutely true. I find myself wishing there was a class (or three) that I could take to learn more about Special Education law and Education law in general. I mean, seriously, have you ever wondered whether the information you’re working from is correct? It seems to come up a lot for me. For instance, I recently learned 

that while an IEP (Individualized Education Plan) is an IDEA issue – a 504 is an Office of Civil Rights issue. A 504 is a life-long document (and employers have to honor it too), not an education document; where an IEP ends at age 21. I’ve known for a long time that a student can’t have both…but did you know that if a student qualifies for an IEP and the parents refuse the student cannot legally have a 504? Did you know that 504s do not have to be reviewed annually?

Did you know that just because a student has a diagnosis of ADHD or Autism doesn’t automatically qualify them for an IEP? Do you think about these things when you’re at your meetings or discussing them with staff? It seems to be coming up more and more.

There are many things that periodically come up (please note: these do not have to do with MY school necessarily – but are common concerns from SLPs I’ve talked to):

1) demographics…are there too many, not so, of a certain demographic identified in my school? What happens to those students who can’t be identified because of skewed demographics but still need the help? When did we get so concerned with numbers we forgot about the people?

2)  Can a school psych diagnose ADHD or just identify possible “markers” for ADHD? Same for anxiety…and…if a school psych says “he has markers for anxiety” does that mean the school has to pay for a psych exam or what? What good does “he has markers for…” do us? It’s not a diagnosis…it’s not a treatment plan…it’s not a behavioral plan.

3) What exactly counts as “educational autism?”

4) What constitutes a parent referral? Does it have to be in writing or is a verbal request enough? While teachers are not supposed to lead parents down the road of requesting testing – is it ethical to try to convince them not to request testing? Is it the “leading” that’s unethical – or what?

5) When a student has challenging behavior what’s the best way to identify it – and how do we know if it’s an emotional disability or just being a brat? (okay that one might not be a legal issue – but it’s an issue!) Also, I’d like to know why some behaviors qualify a student for an IEP and others don’t. If the behavior interrupts a child’s learning – shouldn’t it be IEP worthy regardless of whether it’s ODD or something else?

6) What do you do when your teachers will NOT do RTI in a meaningful way or have lost track of what differentiated instruction is (you know, instruction done differently)? Do we really have to punish the students by not giving them the help they need? Isn’t there something in place to protect the one’s we’re supposed to be helping?

These are just a few of the questions that come up fairly often. I know these issues vary state-to-state, but there should be general guidelines…right?

My biggest problem, is that this year there are so many questions that keep coming up in my school. Many of them have never come up before and I find myself having to ask my coordinator about them…who in turn has to ask her team. While I appreciate her willingness to help – and I really do, she is wonderful… I’d really like to just know the answers (you know, by osmosis or something).

So…how do you get these issues resolved? Do you have someone you can go to for legal questions? Have these issues ever come up before? Let me know…

Until then…Adventure on!


10 thoughts on “Adventures with Legalities

  1. LOL, reading this reminded me of a cartoon my son watched when he was little, Pinky and the Brain. …”Hey Pinkie, are you pondering what I’m pondering?”

  2. I hear your questions and I agree. At my school, I ask the Chairperson, who asks the Spec Educ Director, who asks the Lawyer. By the time I get an answer I have forgotten I asked the question.

  3. That sucks it comes up. I know I required to know all of that educational legalities even though I am just a teacher. It comes up a lot here in NY and a lot of people feel it is common knowledge because you can google section 504, ADA, etc. which sucks for the professional. The worst are impartial hearings and those legalities.

    I might have some of the stuff saved at home ill try and remember to post it but the sad thing is anyone can google it especially parents and use it in a lot of different ways.

  4. The only answer I know is that ADHD is a medical diagnosis and requires a doctor to diagnose it. Apart from that, the answers aren’t black and white (by design) – everything requires attention from the appropriate professional (which often isn’t us, even though we’re being treated as the first line of defense) and, at least in Michigan, revolves around one all-important question – does this affect the student’s academic progress? To make it more interesting, that question is often misinterpreted – just because a student is getting all As and Bs doesn’t mean academic progress isn’t affected…

  5. Same here for me!! We need just one person in the district who is well-versed in the law and they should be the go-to person for questions like these. Unfortunately, I have found very few people in the districts I’ve worked in who have known the law and I see discrepancies all the time.

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  7. Last year, I attended a symposium on Special Education Law. It was only one day, split basically into two topics: the permanent vs. temporary student file (what must be turned over when a parent asks for records, what doesn’t have to be) and the 504 vs. IEP.

    I will say, those 6 hours made me want to simultaneously write everything I ever do down, and write nothing down EVER. It also made me want to learn everything about Special Education Law, and nothing at all for plausible deniability. Pretty much, I left feeling like I’d just been through a tornado.

    Also, according to the speaker that I saw (an attorney who was once a teacher, then a parent advocate, and now works for the co-op), technically, a student can have an IEP and a 504 simultaneously, but only in very specific cases. Take a student with ADHD who requires accommodations (such as fidget toys, movement breaks, separate testing space, etc), but does not qualify under OHI eligibility. However, they do have a developmental articulation disorder and IEP for that. Technically, the accommodations you provide on the IEP have to be tied to the eligibility, so a separate testing location for state testing can’t technically be on an IEP for a lateral /s/.

    It made the most sense to me when she said an IEP is meant to improve student performance (goals), and a 504 is only for accommodations. Although I still don’t quite get how speech, OT or SW can be added to a 504.

    Sorry, that probably doesn’t help much in answering your questions.

    • It sounds like your symposium would be helpful (and terrifying). Good point about how you can have a 504 and IEP simultaneously. I’ll have to look into that here…I know my principal just went to 504 training and she came back with “no way” but I’m betting that specific instance wasn’t taken into consideration.

      Our rule of thumb has been that the accommodations have to be tied to the classroom – so if a student had certain accommodations in the classroom – they could have them for state testing…But, we’ve never had a situation where someone needed accommodations and weren’t eligible for them (like in your example).

      I love when my posts spark more research and more questions. Thank you for sharing your experience!


      • The example stuck with me because I had a student that was speech primary, but needed accommodations and had a dx of ADHD. So we added OHI as a secondary and provided goals targeted by the SW and Special Ed teacher for organization. Our big question was what to do when he met his goals in that area, but maybe needed more speech, since I couldn’t continue to provide all the accommodations he needed if we dropped the OHI eligibility. The attorney said that speech-only kids are the only time that really works, but I know we are often overlooked when administrators think about how IEPs work.

        You were right about the symposium. I live not far from a University, so I have thought about looking into a few SpEd law classes just for my own knowledge. But I don’t know if they will let me take them as a non-matriculated student. But this was a great post that might just motivate me to look into it!

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