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Common Questions Asked By Callers
This page provides answers to questions asked by South Carolinians with
disabilities who call P&A.
QUESTION #1
1. My child has ADHD and a 504 plan and is failing. I’ve asked
for an IEP, but have been told my child doesn’t qualify.
My child’s physician keeps telling me to press for an IEP.
What rights do I have as a parent whose child is currently
receiving 504 services? Should I file for Due Process?”
ANSWER #1
There is no
clear cut set of criteria to know when child’s disability is
severe enough that a 504 plan isn’t enough and an IEP is needed.
However if the child fails various subjects, and is held back a
grade, that appears to be sufficient evidence that the current
situation is NOT sufficient.
Both the 1997 and
2004 IDEA define “Child with a Disability” as one who, having
one of the recognized disability categories, BY REASON THEREOF,
NEEDS SPECIAL EDUCATION AND RELATED SERVICES. Failing several
courses and grade retention are evidence that the 504
assistance/modifications are NOT enough.
It is common for
child with ADD to qualify for special education as "Other Health
Impairment."
ADD was specifically added as an example of OHI
back in the regulations for the 1997 IDEA.
The parallel (current) State regs are at R 43-243.1 K :
Other Health Impairment 1. Definition….
Other Health Impairment….due to …chronic or other actual health
problems such as ….attention deficit disorder….
The new federal
regulations do not appear to change in this area of OHI/ADD.
In fact the definition of Other Health Impairment reads the
same in the current regulation 34 CFR 300.7 as in the proposed
regulation…renumbered 300.8:
34 CFR 300.8 [Proposed regulations] [Currently 34 CFR 300.7]
….9) Other health impairment means having limited strength, vitality
or alertness, including a heightened alertness to environmental
stimuli, that results in limited alertness with respect to the
educational environment, that--
(i) Is due to chronic or acute health problems such as asthma,
attention deficit disorder or attention deficit hyperactivity disorder,
diabetes, epilepsy, a heart condition, hemophilia, lead poisoning,
leukemia, nephritis, rheumatic fever, and sickle cell anemia; and
(ii) Adversely affects a child's educational performance.
Here is additional
information from the special education connection website:
If school’s current “evaluation” doesn’t find the child’s disability severe enough to warrant special education, the parent may ask for an independent evaluation at school expense. Parents need to be sure that the psychologist they choose for an independent evaluation is a certified “school psychologist” in order to be given appropriate weight. If their current one IS a school psychologist, s/he should document a professional view that given the child’s history in school and the ADD diagnosis, special education is warranted.
While due process is not a practical procedure for most parents acting on their own, Mediation 300.506 of regulations could be requested, independent of due process. Parents might first use the preliminary procedure of “Prior written notice” and get the school’s position in writing. See P&A fact sheet Prior Written Notice (attached). Then the reviewing school psychologist (either their current on or one from an independent evaluation) could use that as basis for comment.
Protection and Advocacy for People with Disabilities,
Inc. | 3710 Landmark Drive, Suite 208 | Columbia, SC 29204 | 1.866.275.7273 (Toll-free) | 803.782.0639 (Local) | 1.866.232.4525 (TTY) | 803.790.1946
(FAX) | Copyright@2005 | Last Updated: 05/30/06
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