You Asked! – Question 25

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Q25:  Does a student with dyslexia need to be found eligible as having a “Language or Speech Disorder” in order to receive speech-language services? My student is already eligible for special education services under “Specific Learning Disability”.

A:  No, once qualified for special education services, a student is eligible for any service required to meet his educational needs [20 USC Section 1414(d)(1)(A)(i).  A student does not have to be found eligible as having a Language or Speech Disorder in order to receive related speech and language services.

An example of this situation is where you are sitting in your student’s initial IEP meeting and the IEP team agrees that your student is eligible for special education under the category of Specific Learning Disability. As part of the IEP team review of the speech and language assessment, you note that there are some areas of below average scores that are “red flags” that would indicate the need for IEP goals and services for speech & language. However, the Speech & Language Pathologist says that the student isn’t eligible for speech & language services because the student didn’t meet the eligibility criteria for a Language or Speech Disorder.

This is a frequent misunderstanding at IEP team meetings.  The Speech and Language Assessment may determine that the student’s assessment scores are not low enough for the student to be found eligible for special education under the category of a “Language or Speech Disorder”, however, if the student has already been found eligible for special education services under a different impairment category (i.e. Specific Learning Disability, Other Health Impaired, etc.) and the student’s speech and language assessment show that it is also an area of need, then the IEP team should develop speech-language goals and speech-language services should be included in the student’s IEP.

This is important because very low assessment scores are required under California law in order to meet the “Language or Speech Disorder” criteria and it can be very difficult to meet these criteria [5 CCR 3030(b)(11)].

In addition to phonological processing deficits, students with dyslexia may have a history of delayed speech or language development. These individuals may also have a history of impairment in articulation/phonological production and/or receptive/expressive spoken language skills. Although students with dyslexia may exhibit various types of language problems in the toddler and preschool years, their language problems typically become very obvious once they begin trying to learn to read and write [Catts, H.W. and Kamhi, A.G. (Eds.). 2005. Language and reading disabilities (2nd Ed.). Boston: Allyn and Bacon]. Therefore, there is an increased likelihood that dyslexic students may have a need for speech-language services as a related service in their IEP.

It is important to remember that special education evaluations must be “sufficiently comprehensive to identify all of the child’s special education and related service needs, whether or not commonly linked to the disability category in which the child has been classified” [34 CFR 300.304(c)(6)].

According to the Special Education Rights & Responsibilities Manual, “speech and language therapy may be the most frequently requested related service. Speech therapy addresses articulation difficulties, a common disability. Language therapy addresses difficulties with memory, verbal expression, and listening. If your child has any difficulties with speech or language, you should ask the district, in writing, to do a speech and language evaluation. Any student eligible for special education may receive speech and language therapy if she needs the service to benefit from special education.” (SourceSpecial Education Rights & Responsibilities Manual by Community Alliance for Special Education and Disability Rights California, Chapter 5, Question 13, page 5-16).

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You Asked! Question 18

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Q18:  The school says my dyslexic student doesn’t qualify for special education.  My dyslexic student is spending 3x longer to complete homework and study for tests and is earning passing grades. Can my student still qualify for a Section 504 plan and receive services?

A:  Possibly.  If a student is ineligible for special education and related services under the IDEA, a student may be eligible for “regular or special education and related aids and services” under a federal anti-discrimination law known as Section 504 of the Rehabilitation Act of 1973 (Section 504).[1]  Section 504 is designed to reasonably accommodate a student’s disability so that her individual educational needs are met as adequately as the needs of nondisabled students.  Section 504 applies to all public schools that receive federal financial assistance.[2]

To be eligible under Section 504, a student must: (1) have a “physical or mental impairment” which substantially limits one or more major life activities (such as learning, reading or writing); (2) have a record of such an impairment; or (3) be regarded as having such an impairment.[3]  It is important to remember that mitigating measures such as medication and the use of assistive technology cannot be used as a reason to deny a student’s eligibility under Section 504.[4]  For this reason, it is important for parents to alert the team in writing to these types of concerns as part of the evaluation process.

The regulations to the Americans with Disabilities Act (ADA), another federal law that prohibits discrimination against and ensures equal opportunity for individuals with disabilities, adopts Section 504’s definition of “disability”.  Furthermore, recent amendments to ADA regulations define a “physical or mental impairment” to include “dyslexia and other specific learning disabilities.”[5]

A student under a Section 504 plan is entitled to a “Free Appropriate Public Education” (FAPE). Appropriate education includes the provision of regular or special education services and related aids and services that are designed to meet the individual education needs of the student as adequately as the needs of students without disabilities are met.[6]  The requirements regarding the provisions of a FAPE, specifically described in Section 504 regulations, are incorporated in the general non-discrimination provisions of the applicable ADA regulation.[7]

Thus, “appropriate education” may include “education in regular classes, education in regular classes with the use of related aids and services, or special education and related services in separate classrooms for all or portions of the school day.”[8]  Under Section 504, special education may include “specially designed instruction in classrooms, at home, or in private and public institutions, and may be accompanied by related services, such as speech therapy, occupational and physical therapy [etc. that are] … necessary to the child’s education.”[9]  Section 504 also requires that “appropriate education” must be free and provided at no cost to parents.[10]

Further, “[i]f a student with a disability … is eligible for FAPE under Section 504 but is not receiving FAPE services under the IDEA, that student is entitled to the provision of any services the placement team decides are appropriate to meet their individual educational needs, regardless of cost or administrative burden”, especially if those services had been provided to IDEA-eligible students previously.[11]  “These services can be as varied and as comprehensive as necessary to meet a student’s need.”[12]

(Source:  Disability Rights Education & Defense Fund –  www.dredf.org)

[1] 29 U.S.C. § 794; 34 C.F.R. Pt. 104.

[2] 34 C.F.R. § 104.1; 29 U.S.C. § 794 (b)(2)(B)

[3] See 34 C.F.R. § 104.3(j) for further definition.  See also Community Alliance for Special Education and Disability Rights of California, Special Education Rights & Responsibilities (2011), available at: http://www.disabilityrightsca.org/pubs/PublicationsSERREnglish.htm.

[4] United States Dep’t of Educ., Office for Civil Rights, Free Appropriate Public Education for Students with Disabilities:  Requirements Under Section 504 of the Rehabilitation Act of 1973 (2010), available at: https://www2.ed.gov/about/offices/list/ocr/504faq.html.

[5] 28 C.F.R. § 36.105(b)(2).

[6] 34 C.F.R. § 104.33(b).

[7] 28 C.F.R. § 35.103(a).

[8] See Footnote 4.

[9] See Footnote 4.

[10] 34 C.F.R. § 104.33(c).

[11] United States Dep’t of Educ., Office for Civil Rights, Dear Colleague Letter (July 26, 2016), p. 27, available at: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201607-504-adhd.pdf.

[12] See Footnote 11.

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