You Asked! Question 13

 

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Q13:  Student was assessed for Special Education eligibility and was denied. I believe my student has dyslexia. School disagrees.  What can I do?

A:  Independent Educational Evaluation (IEE) at District’s Expense: If you disagree with a school district’s assessment, you must specifically ask the district to pay for an independent educational evaluation (IEE). It is very important that you specifically state that you are requesting an IEE and that you are in disagreement with the District’s assessment. You are not required to specify why you are in disagreement unless you choose to do so. A template IEE letter can be found at https://dredf.org/special-education/sample-letters/

When the school district receives your request for an IEE, the school district has only two options: Fund or File. That is, the district must either pay for the independent evaluation (Fund) or file for Due Process (File), claiming that the district assessment is “appropriate.” If the district decides to go to a hearing, and the hearing officer determines that the school’s evaluation is appropriate, you have a right to the independent evaluation, but not at public expense (34 C.F.R. Sec. 300.502; Cal. Ed. Code Sec. 56329(b)). The district may ask you to identify specific areas of disagreement with its evaluation, but this cannot be used to delay the district’s response to your request (34 C.F.R. 502(b); Cal. Ed. Code Secs. 56329(b) & (c)).

Under federal regulations, the district must respond to your request for an IEE “without unnecessary delay” (34 C.F.R. Sec. 300.502(b)(2)). Under current California case law, “unnecessary delay” has been found to be more than ninety days (Pajaro Valley Unified Sch. Dist. v. J.S., 47 IDELR 12, 50 (N.D. Cal. 2006)). If the district fails to respond by either paying or filing for due process, it has failed to comply with the law. You could file a compliance complaint to ask the CDE to determine whether the school district should fund an IEE under those circumstances.

Note:  A parent does not need to choose an evaluator from a school district list. However, a school district may need to know more about evaluator(s) you select, in order to determine whether he/she meets the qualifications to administer the IEEs. If an evaluator the parent selects does not meet district criteria, parents must be given full opportunity to explain/request why this person, with this particular expertise is necessary to conduct the IEE. Determinations must be made on an individualized, case-by-case, basis.  Please refer to the attached Wrightslaw article on “Independent Educational Evaluations: Must Parents Choose an Evaluator from School’s Approved List?

Independent Educational Evaluation (IEE) at Your Expense: You can always obtain and independent educational evaluation (IEE) at your own expense and the school district must consider the results of an independent evaluation in any decision regarding the provision of a free appropriate public education to your child. The results may also be presented as evidence at a due process hearing (34 C.F.R. Sec. 300.502(c); Cal. Ed. Code Sec. 56329(c)).

Once you have obtained the IEE and are satisfied with it, provide a copy to the school district and request an IEP meeting to review the assessment. You should inform the district in writing of the recommended services or placement in the IEE that you are requesting for your child. This will allow the district time to provide you with “prior written notice” if the district refuses to provide the services or placement recommended in the IEE.

Also, be sure to let the school district know that you want someone to attend the IEP meeting who is authorized to respond to the IEE on behalf of the school district. You are responsible for paying for an assessment that you have obtained on your own, unless the district has agreed to fund it. However, if the district accepts the recommendations made in this assessment, you may be able to seek reimbursement from the school district.  (Source:  Special Education Rights & Responsibilities by Community Alliance for Special Education and Disability Rights of California, pages 2-16 through 2-19 http://www.disabilityrightsca.org/pubs/PublicationsSERREnglish.htm)

An excellent article regarding IEEs can be found here: http://decodingdyslexiaca.org/wp-content/uploads/2017/03/547601-1.pdf

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You Asked! Question 10

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Q10:  Is dyslexia a medical diagnosis and who can diagnose dyslexia?  Is an outside diagnosis of dyslexia required in order to be eligible for special education and/or Section 504 plan?

A:  Dyslexia is not characterized as a medical problem and is not typically diagnosed by doctors because they don’t have training in oral language, reading, writing, or spelling assessment and diagnosis.  That being said, developmental pediatricians, psychiatrists, licensed psychologists (Ph.D. or Psy. D.) and neuropsychologists have additional training in cognition and learning and some have expertise in the clinical and neurobiological features of dyslexia.  (Source: Debunking the Myths about Dyslexia – University of Michigan Dyslexia Help Center)

The Diagnostic and Statistical Manual of Mental Disorders (DSM-5) published by the American Psychiatric Association is the official list of mental disorders.  A dyslexia diagnosis under the DSM-5 can be referred to as a “specific learning disorder with impairment in reading” or dyslexia can be used as an alternative term.  Diagnosis under the DSM-5 can be made by mental health and other health professionals as determined by the licensing laws in California.  It is important as a parent when selecting a mental health or other health professional that they have the requisite experience in assessing dyslexia.  (Source: American Psychiatry Association)

An outside diagnosis is not required to be eligible for special education or for a Section 504 Plan.  Educational eligibility under the IDEA is not the same as a medical diagnosis under the DSM-5. The school district has the legal obligation to identify a disability within the thirteen disability categories listed in the education code, most school psychologists and educators who assess children are not qualified to diagnose children. It is important for parents to understand that there is a difference between “eligibility category” under the IDEA and a medical diagnosis.   What matters is that the district evaluate in enough depth using appropriate assessments to identify what challenges are interfering with learning, so that the intervention and support address those areas of need.

Of the thirteen disability categories listed in the education code, students exhibiting the characteristics of dyslexia and who are found to be eligible for special education will most likely be found eligible under the category of Specific Learning Disability (SLD) with possible deficits in the following academic areas: phonological processing, basic reading skills, reading fluency skills, reading comprehension, spelling and/or written expression.  It should be noted that a student exhibiting characteristics of dyslexia that also exhibit characteristics of other impairments (such as ADHD, speech and language impairment, etc.) maybe found eligible in other categories such as Other Health Impaired or Speech/Language Impaired. (NOTE: The IDEA is clear that disability classification is of no consequence legally- once the child qualifies for special education, the team is obligated to develop an IEP that meet the child’s individual needs.)

In the case of specific learning disabilities, the IEP team needs to determine the underlying processing problems adequately in order to create interventions that will work. This is why identifying that a student is exhibiting characteristics of dyslexia is essential. Remember:  Even if a parent provides a medical diagnosis, that does not automatically mean the student will be eligible for special education support or 504 accommodations. The diagnosis must be preventing the child from gaining educational benefit in the classroom. However, the assessor and the IEP team must consider an outside diagnosis of dyslexia. If a parent has obtained a diagnosis outside of the district, regardless of whether it was funded by the district, this is important information for the IEP team to review and discuss. If a parent disagrees with a school district assessment, they can request an Independent Educational Evaluation (IEE) and the school district must consider the results of an independent evaluation in any decision regarding the provision of a Free Appropriate Public Education to your student.  (Source:  34 C.F.R. Sec. 300.502(c); Cal. Ed. Code Sec. 56329(c); Special education eligibility requirements are found in IDEA 34 C.F.R. Section 300.8(c)(10)).

 

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