Disability Advocates/Consultants of South Texas

What's New/News:                                             Vol. 2, Issue 5



The first topic that I wish to cover was asked by several parents lately,  so the first section of this newsletter will cover the timely topic of "Referrals to Special Education."

Educational Need. One mother approached me about referring her child to special education. Her child has a serious learning disability but he is quite intelligent and has learned to compensate. Personnel at his school do not want to make the referral because the child is doing so well in school. The mother feels that the child may start falling behind in Middle School if intervention is not in place.

Another mother complained that the school personnel where her daughter attends first grade want to remove the child from special education services because the child is passing everything. They do not see an educational need for services. The mother complains that she spends two hours every night working with her daughter to help the child keep up with the class. This child is not an "A" or "B" student even with all the help she receives at home. This little girl has been in special education since she was three years old. The mother does not understand the thought processes of the school personnel who want this girl removed from special education services.

The answer to both of these mothers is simple. In order to receive special education services there must be an educational need. If the child is passing, even barely passing, there is not an identifiable educational need. The school districts do not have to provide the best services, only adequate services geared to providing a "free appropriate public education". The child must receive "some benefit" from the educational program.

In the first case, the child has learned to compensate. All special education teachers can do is teach the child the same skills. (I would argue that waiting until the child fails is short-sided and can only lower a struggling child's self-esteem.) However, the law says that if the child is passing, if he is compensating, then no services are required. Some schools will go the extra mile and make the referral when the child begins to fall behind or is seriously struggling to keep up with his classmates. Those schools are rare and far between. The mother might be able to persuade this school that early intervention could, in the long run, save the school time, money and resources. I would encourage her to make that argument to the school and see what happens.

In the second case, the child is doing well because the mother is providing at home what special education would be providing at school. The advantage to the mother providing the services is that the child does not have to waste school time going to a special class. The teacher does not have to modify her curriculum or spend extra time with this little girl. The disadvantage to the mother is that the mother is spending two hours a night and time on weekends with one child. The other child does not get the same attention. In addition, the mother's time is tied up every night. Meanwhile the school could be providing the services that the child needs.

The second mother finds herself in a "Catch 22" position. As long as the mother is willing to provide the extra tutoring to the child, the child will continue to improve and there will be no educational need for continued special education services. On the other hand, if the mother stops working with the child, the child will digress in her studies, her self-esteem will suffer and the child will begin to fail. At that time, the school personnel will determine that there is an educational need and refer the child, once again, for services.

My recommendation would be for the school personnel and parents to decide to keep the child in special education while the mother weens the child from the two hours of nightly study. By monitoring the child's progress, the school personnel can determine if the child begins to fall behind. It may be that the child will do fine without the extra help. Chances are, however, the child will start to fall behind at some point and the school will have to intervene. At that time, the program will be in place and a referral (which can take months from initiation to placement) can be avoided.

Timing the Referral. What happens if a child needs special education intervention and it is April or May? School personnel might tell a parent that referrals are not accepted after a certain date. Such a statement would be contrary to law. Teachers are often told not to make a referral after a certain date because it is so difficult to get the referral processed, do the evaluations and have an I.E.P team (formerly A.R.D.C.) meeting in the summer. The administrators who establish this rule believe that the teacher had the entire year to determine that the child needed special education intervention and should have made the referral in a timely manner. I will not argue the logic to this rule. Its legality is questionable.

However, as a parent, the school must accept your referral whenever you make it even if the date is June 1st and school has been dismissed. The school must test during the summer and the timelines are the same. A program can be in place on the first day of school. I strongly urge parents who feel that a referral is needed go ahead and do the paperwork. If the school administration refuses to process the referral, then the parent needs to document the refusal and request a hearing. (Of course, the parent should go through the administrative process first by talking to the principal, the special education director and the superintendent prior to making the request for a hearing.)

If the parent feels strongly that his or her child will qualify for special education, that parent can have an independent evaluation performed by someone outside the school (with the correct credentials). If the evaluation meets the school criteria for testing and if the child seems to qualify based upon the testing, then a hearing officer might order the school to reimburse the parent for the testing. An alternate suggestion would be for the parent to contact the Scottish Rite in Dallas. They will do the testing free of charge and their evaluators are qualified.


A.D.A. (Americans with Disabilities Act)

Another parent contacted me this last month to ask a few questions about her son. She wanted him to receive a high school disploma based on his disability. It seems that the child did not complete high school but he went on to junior college and had acquired some hours. Not having a diploma was holding the student back. The mother thought the school principal was violating A.D.A. Unfortunately, he was not in violation of A.D.A. or Section 504 of the Rehabilitation Act of 1973.

The fact is that A.D.A. is only an equalizer. It provides an individual with an opportunity equal to that of his or her peers who do not have a disability. That means that if a student without a disability must follow certain procedures to earn a high school diploma, then a school only has to provide those accommodations that will help a child with a disabilty achieve the same end. However, the school does not need to "fundamentally alter" its programs. Handing the student a diploma without the student completing his courses is a fundamental alteration. There would have to be really amazing extenuating circumstances before a court would order such an alteration.

That theory applies to all A.D.A. accommodations as well as accommodations under Section 504 for all individuals. No one can be forced to totally change a program. As long as the individual with a disability can participate in the program as it is with a reasonable accommodation, then that accommodation must be made. As long as the individual with a disability can perform the duties of a job with a reasonable accommodation (like lowering a few shelves or widening a walkway) and if the business will not be unreasonably burdened by that accommodation, it must be provided. The reasonableness of the accommodation must be balanced against the burden on the employer.

Money, Donations, Equipment, etc.

If anyone out there is searching for wheelchairs or other specialized equipment for an individual with a disability or if you need money or donations for causes, do not expect much from organizations for the handicapped. Most of these agencies just get by on a day to day budget. They may have some money or some equipment but, most likely, you will find yourself waiting in lines and not receiving much. It is not the fault of the organizations for the handicapped. They simply do not receive much funding. Instead of the handicapped groups, look to big businesses, the media and philanthropy groups. They have money and/or clout in the community to help. Get them involved with money drives or donations. You will get a better response and you'll avoid the lines. Just do not bother the same group each time. Try to contact different organizations. Be very, very thankful for any and all help you get. Write thank you notes and praise the donee highly.

Also, you can approach the Boy Scouts, Girl Scouts, Lions Clubs, churches and other groups to do a fundraiser for the individual with a disability who needs help. Again, praise them highly for anything you get. Write letters of commendation. If they can only help a little this year, that's fine. With enough publicity and thank yous, the organization may be able to help you again the following year.

I want to thank everyone who did send me questions. Some of the questions forced me to do a little research. I promise to get back to all of you as fast as possible.



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