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Last Updated: 11/20/2017
 

  Ask the Advocate with Tricia Luker

 

Question:  I have a boy in my 6th grade class that was diagnosed with Lupus at the beginning of the school year. He has missed 18 days already this year. I have actually taken assignments to his house and the hospital for him, but he continues to fall behind. IEP requests were refused twice b/c he would not be attending special education classes in school. The principal even had the nerve to tell this boy's father that he shouldn't be in school and should have a private tutor.  He is very bright and I would hate to see him fall further behind, but without an IEP providing the steps that need to be taken for him, its inevitable. I have even offered my own personal assistance when he is unable to attend school, but the admin refuses.  Anyone have any suggestions?

 

Answer:  I have several responses to the plight you describe.

1.   I wonder if the student might qualify for services through Section 504 even if the school administration is
right (see below) in concluding that he does meet the IDEA eligibility requirements. Section 504 (The Rehab Act of 1973) requires schools who receive federal funds to accommodate students who have disabilities. All school districts are required to have procedures in place to determine 504 eligibility, and many school districts adapt or modify their IDEA rules and procedures to regulate whether, when and how 504 accommodations are provided.  Perhaps his parents should consider making a formal request for 504 services through the school system's designated 504 officer.

2.   I wonder if the student might qualify for IDEA eligibility under IDEA's "otherwise health impaired" provision. From what you describe, it seems one could make a strong argument that the student's Lupus condition:

     A.   Has limited his strength vitality or alertness;
     B.   Is due to his chronic or acute health problem of Lupus; and
     C.   Adversely affects his educational performance.

3.   I question whether the school district has complied with IDEA 97 and its regulations regarding the processing of requests for determinations of IDEA eligibility. You describe a situation that suggests that school officials informally rejected an informal request on the student's behalf for IDEA services. IDEA 97 allows either parents or school personnel to initiate the formal process to determine whether a student qualifies for and should receive IDEA services. Once the school receives a formal request for evaluation, the law and the regs state the process to be followed to determine the student's eligibility. If the end decision is that the student is not eligible for services, the parents have appeal rights, and IDEA also emphasizes using mediation to resolve disputes. I wonder if the school district's first "informal" rejection might not be changed if the formal eligibility determination process is followed. Getting school district evaluators and professionals involved in assessing the student's conditions and needs might also lead to a consensus that certain available school services can and should be provided, even if everyone ultimately agrees that the student is not eligible for IDEA services.

4.   Your email also suggests to me that the school's  rejection of the IEP process might be based more on what services the school normally provides, rather than considering the student's condition and needs. In other words, the school might be saying in essence that "it doesn't matter if [the student] is IDEA eligible or not, because we don't provide such services even to students who are IDEA eligible." I would not find that to be an acceptable explanation. IDEA and Section 504 both require that services be provided based on and consistent with the student's educational needs and as required to meet the student's goals and objectives. If the student's needs are identified, the school cannot abrogate its obligation to provide the services required to meet those identified needs by saying "we don't have a program like that here," or "we don't do that here."

5.   The parents might benefit from a referral to the state parent training center or protection and advocacy system.  These agencies might (should) be able to provide the parents with information about student eligibility for IDEA or Section 504 services, and how to apply for those services.  If you want to email me privately to tell me the state you are in, I can give you the current contact information for the state PTC and P&A agencies. You also can suggest the parents visit the Bridges4Kids website at www.bridges4kids.org.  The website contains copies of sample letters requesting initial IDEA and 504 evaluations and other letters that might be necessary as the process goes forward.

Again, thank you for going to bat for this student. Let me know if I can offer any help.
 
Tricia Luker
www.bridges4kids.org

 

A thank you for the teacher who submitted this question to Tricia - "I admire your commitment to your students. You are being a great advocate for this young man. Thank you for your willingness to go the extra mile."  A Concerned Teacher

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