For nearly 100 years, parents with disabilities have experienced fewer rights than their non-disabled peers.
The Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act (ADA) protect parents and prospective parents with disabilities from unlawful discrimination in the administration of child welfare programs, activities, and services.
Despite legal protections, parents with disabilities still are referred to child welfare services and permanently separated from their children at disproportionately high rates.
Parents who believe they have experienced discrimination may file an ADA complaint online, by mail, or by fax. Another option is to file a complaint with the Office for Civil Rights through the Department of Health and Human Services (HHS). Read on for details about how and where complaints are filed.
In 1923, the Supreme Court of the United States (SCOTUS) established parental rights, but four years later parents with disabilities were denied those protections. In Buck v. Bell, May 2, 1927, SCOTUS ruled that persons with disabilities do not have fundamental rights to make private decisions regarding family life. The Americans with Disabilities Act (ADA) in 1990 attempted to correct some disparities, but parents with disabilities still have their children removed from their homes at disproportionate rates.
In the United States, 4.1 million parents have disabilities.
1 in 10 children have a parent with a disability.
5.6 million Americans live with paralysis from stroke, multiple sclerosis, spinal cord injury, traumatic brain injury, neurofibromatosis, cerebral palsy, post-polio syndrome or other issues.
35 states include disability as grounds for termination of parental rights.
Two-thirds of dependency statutes allow courts to determine a parent unfit, based on disability.
In every state, disability of the parent can be included in determining the best interest of the child.
The District of Columbia, Georgia, Kansas, Maryland, Mississippi, North Dakota, New Mexico, Ohio, Oklahoma, and South Carolina allow physical disability as the sole grounds for terminating parental rights, without evidence of abuse or neglect.
The ADA prohibits discrimination based on disability
The ADA makes it unlawful to discriminate against individuals with disabilities in all areas of public life, including jobs, schools and transportation. The federal law, which is upheld by the Office for Civil Rights, covers all public and private places that are open to the general public. Under the ADA, people with disabilities have the right to equitable access. Equity doesn’t mean equal: It means that accommodations are provided to ensure access to something that everyone else has access to.
In 2008, the Americans with Disabilities Act Amendments Act (ADAAA) was signed into law. The ADAAA made significant changes to the definition of disability. The ADA is organized in sections called “Titles,” and the ADAAA changes applied to three Titles of the ADA:
Title I: Covers employment practices of private employers with 15 or more employees, state and local governments, employment agencies, labor unions, agents of the employer and joint management labor committees
Title II: Covers programs and activities of state and local government entities, including child welfareagencies and court systems
Title III: Covers private entities that are considered places of public accommodation
Equitable parenting opportunities are a Civil Right
Title II of the ADA and Section 504 of the Rehabilitation Act of 1973 protect parents and prospective parents with disabilities from unlawful discrimination in the administration of child welfare programs, activities, and services. Section 504 also protects students with disabilities, and PAVE has an article about that.
The goal of the ADA and Section 504 as it applies to parents and prospective parents is to ensure equitable access to parenting opportunities. Also, these Civil Rights laws recognize that separation of parents from their children can result in long-term negative outcomes. The ADA requires child welfare agencies to:
Give a fair chance to parents with disabilities so they can take part in programs, services, or activities.
Provide help to make sure people with disabilities understand what is being said or done.
Prevent barriers that make programs, activities or services hard to access because of disability.
Title II of the ADA and Section 504 also protect “companions”—people who help individuals involved in the child welfare system. A companion may include any family member, friend, or associate of the person who is seeking or receives child welfare services. For example, if a helper person is deaf, the child welfare agency provides appropriate auxiliary aids and services to ensure effective communication.
Discrimination leads to family separation
According to a comprehensive 2012 report from the National Council on Disability (NCD), parents with disabilities are often inappropriately referred to child welfare services. Once involved, these agencies permanently separate families impacted by disability at disproportionately high rates.
According to the report, discrimination most commonly involves parents with intellectual and psychiatric disabilities. Parents who are blind or deaf also report significant discrimination in the custody process, as do parents with other physical disabilities. Individuals with disabilities seeking to become foster or adoptive parents encounter bias and barriers to foster care and adoption placements. The NCD linked the discrimination to stereotypes and speculation about parenting ability rather than evidence of problems in the home. The agency found a lack of individualized assessments and that many families weren’t receiving needed services.
The ADA and Section 504 provide Civil Rights protections against retaliation or coercion for anyone who exercises anti-discrimination rights. ADA complaints can be filed online, by mail, or by fax.
Individuals also may file complaints with the Office for Civil Rights at the Department of Health and Human Services (HHS). For instructions to file in English or other languages, go to How to File a Civil Rights Complaint.
Always save a copy of the complaint and all original documents.
For more information about the ADA and Section 504, call the Department of Justice ADA information line: 800-514-0301 or 800-514-0383 (TDD), or access the ADA website.
Visit the following websites for additional information:
Students with disabilities are bullied at a higher rate than their typical peers. October is National Bullying Prevention Month, providing a good opportunity to review information about available resources and actions families can take.
According to Disability Scoop magazine, about half of individuals with autism, intellectual disabilities, speech impairments and learning disabilities are bullied at school. The rate of bullying for typical students is about 10 percent.
A student who is identified as having a disability has added layers of protection against bullying. Those protections are upheld by the United States Office for Civil Rights (OCR), which in 2014 issued a Dear Colleague Letter to remind school staff of their obligations to protect students with disabilities against bullying:
“While there is broad consensus that bullying is wrong and cannot be tolerated in our schools, the sad reality is that bullying persists in our schools today, and especially so for students with disabilities,” the letter states. “This troubling trend highlights the importance of OCR’s continuing efforts to protect the rights of students with disabilities through the vigorous enforcement of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act of 1990 (Title II). It also underscores the need for schools to fully understand their legal obligations to address and prevent disability discrimination in our schools.”
Students on Section 504 Plans and Individualized Education Programs (IEPs) qualify for the protections of a Free Appropriate Public Education (FAPE). Special services, accommodations and programming designed to meet specific, unique needs are what make education “appropriate” for a student with an identified disability. According to OCR, a school’s failure to address bullying can be determined as a denial of FAPE, “when a school knows or should know of bullying conduct based on a student’s disability.”
The OCR goes on to say that a school “must take immediate and appropriate action to investigate or otherwise determine what occurred. If a school’s investigation reveals that bullying based on disability created a hostile environment…the school must take prompt and effective steps reasonably calculated to end the bullying, eliminate the hostile environment, prevent it from recurring, and, as appropriate, remedy its effects.”
The U.S. Department of Education maintains an online blog called Homeroom. An article, Keeping Students with Disabilities Safe from Bullying, states that students will disabilities are particularly vulnerable because of physical issues, challenges with social skills and intolerant environments. “Students who are targets of bullying are more likely to experience lower academic achievement, higher truancy rates, feelings of alienation, poor peer relationships, loneliness, and depression,” the article states. “We must do everything we can to ensure that our schools are safe and positive learning environments—where all students can learn.”
Washington State defines harassment, intimidation, or bullying (RCW 28A.300.285) as “any intentional electronic, written, verbal, or physical act…” that:
Physically harms a student or damages the student’s property
Has the effect of substantially disrupting a student’s education
Is so severe, persistent, or pervasive that it creates an intimidating or threatening educational environment
Has the effect of substantially disrupting the orderly operation of the school
Washington State’s Office of the Educational Ombudsman (OEO) provides guidance and model Incident Reporting Forms for parents and schools through its website, which includes some articles in both English and Spanish. “Bullying is not something schools and families should take lightly,” OEO states. “Bullying is a repeated negative behavior that takes advantage of a less-powerful person, and sometimes even makes the child who is bullied feel at fault. Hitting, name calling, shunning and shaming are all forms of bullying. So are spreading rumors, gossiping and making threats online.”
The PACER Center’s National Bullying Prevention Center, founded in 2006, has a vast array of resources for families and professionals. Here is a sampling of information from PACER’s Top 10 facts for parents, educators and students with disabilities:
Students with disabilities are more likely to be bullied than nondisabled peers.
Bullying based on a student’s disability may be considered harassment if it includes:
unwelcome conduct such as verbal abuse, name calling, epithets, or slurs
graphic or written statements
other conduct that may be physically threatening, harmful, or humiliating
Bullying could be determined to be disability-based harassment and/or a denial of Free Appropriate Public Education (FAPE), protected by the U.S. Department of Education’s Office for Civil Rights (OCR).
All states have bullying prevention laws, and many school districts also have individual policies that address how to respond to bullying situations. Families can contact a local district to request a written copy of the district policy on bullying.
Adult response is important. Parents, educators, and other adults are important advocates and need to know the best way to talk with children who might be reluctant to talk about what happened, perhaps because the bully threatened to retaliate if called out. PACER has letter templates parents can use to communicate with the school and also articles about how to talk with children about bullying and cyberbullying.
The Individualized Education Program (IEP) can be adapted to help when bullying becomes a barrier to learning. The PACER center provides these IEP-specific tips:
Identify an adult in the school that the child can trust for help.
Determine how school staff will document and report incidents.
Allow the child to leave class early to avoid hallway incidents.
Hold separate in-services for school staff and classroom peers to help them understand a child’s disability.
Educate peers about school district policies on bullying behavior.
Ensure that school staff regularly remind the student that he or she has a “right to be safe” and that the bullying is not his or her fault.
Request that school staff shadow the student who has been bullied in hallways, classrooms, and playgrounds.
More than 50 percent of bullying situations stop when a peer intervenes. Most students don’t like bullying, but they may not know what to do when it happens. Peer advocacy is a unique approach that empowers students to protect those targeted by bullying.
Self-advocacy can be fostered as a skill that helps the student with a disability talk about needs in a straightforward way. By being involved in what happens in response to the bullying, a student gains a sense of control over their situation. PACER Center’s Student Action Plan helps students define the situation, think about what could be different and write steps for action.
Everyone has a role to play to help students see that no one deserves to be bullied and that all people should be treated with dignity and respect, no matter what. PACER center provides curricula under a program called, The We Will Generation.
Additional information and resources about bullying are available through the Center for Parent Information and Resources, CPIR, which maintains a website called the Parent Center Hub.
A child’s mental well-being may be impacted when bullying, teasing and intimidation become a pattern. If a student or family member needs someone to talk to in an emergent moment of crisis, these phone numbers may be helpful:
National Suicide Prevention Lifeline: 800-273-8255
General Teen Talkline: 800-TLC-TEEN
Trevor Project (issues related to sexuality): 866-488-7386
Section 504 is part of the Rehabilitation Act of 1973, which is upheld by the United States Office of Civil Rights.
This law protects access rights to public places and programs for individuals with disabilities. Accommodations that support access are guaranteed, and not providing access is a form of discrimination.
All students with qualifying disabilities are part of a protected class under Section 504, including those on 504 Plans and those on Individualized Education Programs (IEPs).
Section 504 protects a person with disabilities throughout life and covers individuals at work and in any public facility or program.
Key terms are equity and access to opportunity. A government-funded place or program provides whatever is needed so the person with a disability can benefit from the place or program. The opportunity is equitable when supports provide a way for the person to overcome the barrier of disability (to the maximum extent possible) to access the place or program that everyone else has the right to access.
Section 504 defines disability as an impairment that impacts a major life activity. If a student in school meets criteria, then the school provides what a student needs to access a Free Appropriate Public Education (FAPE) in the general education setting.
A Section 504 Plan determines what a student needs to receive equitable benefit from school.
Section 504 is part of a law called the Rehabilitation Act of 1973, which is upheld by the United States Office of Civil Rights. This law is about access–to a public place or program. Section 504 protects a person for life and allows every student, employee or guest in a public institution to ask for and expect supports and productivity enhancers–what they need to succeed.
All children with disabilities who qualify for special services in school are protected by the provisions of the Rehabilitation Act. Students who qualify for Special Education are protected by Section 504 and the Individuals with Disabilities Education Act (IDEA). Children protected by IDEA have Individualized Education Programs (IEPs), and children who qualify for some support but do not meet the IDEA’s specific criteria may have Section 504 Plans. This article is primarily about Section 504 Plans. For more detailed information about the IEP, PAVE provides an article, Get Ready for School with IEP Essentials.
Education rights are like a pyramid: At the top of the pyramid is the IDEA (Individuals with Disabilities Education Act), which provides a full menu of special education programming and services for qualifying students. Children at the top of the pyramid have all the protections of each of these laws.
At the center of the pyramid is Section 504, part of the Rehabilitation Act of 1973, which guarantees non-discriminatory rights to equitable access for individuals with disabilities.
ESSA (Every Student Succeeds Act) is at the bottom, providing all children in the United States the right to a free public education “to ensure that every child achieves.”
Schools are bound by Section 504 as “covered entities,” places or programs that receive money from the U.S. government. Schools provide access to Free Appropriate Public Education (FAPE) by helping students with 504 Plans to succeed in regular classrooms and school settings. The goal is to meet the student’s needs as adequately as the needs of nondisabled students to offer equity and access to opportunities. Keep reading to learn more about what equity truly means.
Section 504 defines disability as an impairment that impacts a major life activity. A school team considers a variety of information to consider whether a student qualifies for a Section 504 Plan. A formal evaluation is not required, and parent involvement is voluntary. The team asks:
Does the student have an impairment?
Does the impairment limit one or more major life activities?
The law is intentionally broad, so it doesn’t limit the possible ways that a student who needs help can qualify for that help. A list of possible impairments is, therefore, unlimited. Here are a few examples:
Physical disability that might affect mobility, speech, toileting or a human function: Spina Bifida, deafness, dwarfism, loss of a limb
Cognitive, psychiatric, or emotional disorder: intellectual disability (Down Syndrome), a specific learning disability (Dyslexia), a brain illness or injury (bipolar disorder, Traumatic Brain Injury), an emotional disturbance (anxiety, depression)
Major bodily functions: disease of the immune system, digestive or urinary issues, an impairment of the nervous system or heart
A list of major life activities is also endless. Whether an impairment “substantially” limits a major life activity is determined individually. Some impairments affect the ability to practice self-care, and challenges in basic life tasks like walking, seeing, hearing, speaking, breathing, learning, and working are captured. Someone with sensory challenges might struggle to concentrate, think and communicate—all of those can qualify as major life activities. Really, any system in the body might have a challenge that creates a barrier for an individual and therefore can qualify as a disability.
Sometimes a Section 504 Plan provides adequate support, and sometimes the family and school consider whether the student qualifies for an IEP with a full menu of special education protections. A 2018 federal court ruling in favor of a student with Crohn’s disease provides an interesting example. Parents had provided the school with information about his diagnosis and requested an evaluation for services. Their request was denied. The Third Circuit Court found the school in violation of the student’s right to appropriate evaluation under the Child Find Mandate. The court also found that the school should have provided special education services, not only accommodations with a Section 504 Plan:
“In seeing Crohn’s as something requiring only a Section 504 accommodation, not IDEA special education, [the district] treated the disease as something discrete and isolated rather than the defining condition of [this student’s] life.”
An online search can find a range of information related to Crohn’s Disease or other specific medical conditions and how to design a specific educational plan to meet a student’s needs. The Crohn’s and Colitis Foundation, for example, provides a template for a Section 504 Plan for a student with serious medical issues related to digestion.
Equity doesn’t mean Equal
Supports and services for a student with a disability seek to provide equity. Equal opportunity would mean that all students get the same help. Getting the same help doesn’t give all students the same opportunity. In this picture, on the left, the little guy in the light blue shirt can’s see the game, even though he’s got the same platform as the taller guy. He needs a different platform to have the same opportunity to see the game.
The help that makes access to learning equitable puts the word Appropriate in FAPE– Free Appropriate Public Education.
Students with known disabilities get help and productivity enhancers to access the opportunities for success that all students have. If they need a taller crate—or an extra teacher, or a special swing on the playground, or training in Social Emotional Learning (SEL) or something else specific that gives them the same opportunity to learn, grow and benefit from school, then their civil right is to get the boost they need to have an equitable opportunity.
Accommodations and services create equity in order to give people a fair opportunity to succeed. This level of fairness can be called justice.
Under Section 504, individuals with impairments have a right to get into public places—with ramps, elevators, braille labels on doors…whatever is needed for physical access. Other aspects of access are less obvious. Individuals with unseen disabilities have the right to accommodations that will make a program or service as effective for them as it is for the general population.
Positive behavior supports through a are an example of an accommodation that can help a student with a disability access the major life activity of learning. A BIP can be a stand-alone plan or can accompany a Section 504 Plan or an IEP. A BIP is developed after the school conducts a Functional Behavior Assessment (FBA). Parents sign consent for the school to conduct an FBA.
Section 504 Supports Inclusion and Bars Discrimination
Section 504 includes elements of inclusion. A person with a disability has the right to access the regular program unless special help and different options cannot work to provide that person with benefit from the program or service.
This is important in education: Students have the right to get help so they receive an equitable benefit from learning in the general education classroom. They move to a more specialized setting only if those supports fail to provide appropriate and equitable access. This is true for students on 504 Plans and IEPs.
Under Section 504, any alternative space or program must be “comparable.” Clearly, that’s subjective, but it’s important language to include in any discussion with the school if parents have concern that a child is not receiving an education that is equitable or comparable to that being offered to typically developing students.
According to the Office of Civil Rights, as an institution that receives government funding, a school is bound to avoid policies that might on purpose or accidentally exclude persons with disabilities. In other words, if a school’s policy or action creates a barrier to access for a student with a disability, the school might be cited for discrimination if the Office of Civil Rights did an investigation.
Here are examples of how Section 504 might impact a student:
The school helps a student succeed with other students in the regular classroom, which is the most integrated setting.
If the student needs extra help or technology or a special place to sit, he/she gets that because the school is ensuring accessibility.
If the student needs to take a different test or get a homework deadline changed, then the school makes those reasonable modifications, which don’t fundamentally alter the program.
An auxiliary aid might be a 1:1 para, and the school district provides that.
Section 504 Protects Students Everywhere at School
Access rights are not limited to the classroom but include all aspects of school and learning. This is just a short list of school settings that are governed by Section 504:
PE (Physical Education)
Are Parents Part of the Section 504 Team?
The Rehabilitation Act doesn’t require schools to involve family members in the administration of a 504 plan. However, the plan is managed by a responsible school staff member who notifies parents before a student is evaluated or placed on a 504 Plan and provides parents/guardians with a copy of the plan.
The school also provides written notification to parents about their rights to disagree through grievance procedures. The document that describes these procedures is called “procedural safeguards.” If a parent requests a formal evaluation for special education services, and the school district refuses, the school district must provide the parent with a written copy of the procedural safeguards.
How is a 504 Plan Different from an IEP?
The decision to include parents in 504 team meetings is determined by each school district. However, parents may contribute information such as doctor reports, outside testing reports and personal reflections and concerns. Schools are expected to make sound educational decisions about what the child needs to be successful.
The fact that parent participation is not a guarantee of the law makes Section 504 different from the IDEA, which requires parental involvement in the IEP process. Here are a few other differences between these two laws:
A 504 Plan is nearly always implemented within the general education setting, whereas an IEP may include placement in a variety of inclusive and specialized settings.
A 504 will NOT include academic goals, benchmarks, or measurements, which are key features of an IEP.
Under Section 504, a qualified student with a disability is protected regardless of whether the student needs special education.
An IEP is an educational program that follows a student through high school; a 504 Plan is a Civil Rights protection that follows a person throughout the lifespan.
Remember, Section 504 is about equity and access, and the protections of the Rehabilitation Act cover students on Section 504 Plans and IEPs.
How are Discipline and Behavior addressed by Section 504?
Students with disabilities are a protected class when schools administer disciplinary actions. If a student with a disability is suspended for multiple days within a school term, the school is required to have a meeting called a Manifestation Determination meeting. This requirement specifically states that schools hold this meeting by the 10th day of suspension.
The school and family will go through a specific set of questions to determine whether the behavior that led to the suspension was caused by some aspect of the student’s disability. In other words, did the behavior manifest from the disability?
At that meeting, the team will decide whether the school followed the 504 Plan, the IEP, the specific behavior plan and/or its own disciplinary policies in making the decisions about what to do. If the team determines that the student’s disability was the cause of the behavior and/or that the school didn’t follow procedure, then the student may qualify for Compensatory Services—additional learning time—to make up for missed education during the suspension.
For a student with a Section 504 Plan, this meeting can also direct the school to conduct a comprehensive educational evaluation to see if the student’s disability qualifies that student for the full menu of special education options available under the IDEA—including an IEP. A website called School Psychologist Files has an article and a chart comparing Section 504 and IEP.
Here are a few points related to Section 504, discipline and behavior:
Students with disabilities can be disciplined.
Students with disabilities have special protectionsregarding discipline.
Schools cannot change a student’s “placement” without following the rules. Placement is where the student receives learning. If the school disciplines a student with a 504 Plan in a way that changes the location where the student receives education, this may constitute a change in placement. The Office of Civil Rights has specific laws that govern what constitutes a change in placement and how schools respond.
Students with disabilities are a protected class. Schools have the right to discipline students to keep everybody safe, but the schools are bound by specific rules and regulations to make sure that their disciplinary actions aren’t discriminatory.
If a student with a disability keeps getting taken out of class because of behaviors, then the disciplinary actions might add up to a significant change in placement. The law states that this change is placement triggers a re-evaluation and opens the possibility that a higher level of special education service might be needed to support and protect this student with a disability.
Rules for Schools
Some parents are anxious about questioning actions taken by the school. It’s important to remember that parents also have protections under the law. The Office of Civil Rights maintains specific guidelines that do not allow schools to retaliate against parents for asserting their rights to participate in a student’s education.
Parents can reach out directly to the Office of Civil Rights:
OCR Seattle Regional Office at: 206-607-1600
National: 800-877-8339 (TTY) or Federal Relay Service (FRS) at 1-800-877-8339
Here are some additional resources for information about Section 504:
The United States Department of Health and Human Services: HHS.Gov
Special Education is provided through the Individualized Education Program (IEP) for a student with a qualifying disability. The first step is to determine eligibility through evaluation. This article describes that process.
An educational evaluation collects information in all areas of suspected disability, including non-academic areas such as Social-Emotional Learning (SEL). Read PAVE’s three-part series on SEL for more information.
See PAVE’s Part 2 article about what to do if the school says no to your request for a special education evaluation.
Full Article If a student is having a hard time at school and has a known or suspected disability, the school evaluates to see if the student qualifies for special education. If eligible, the student receives an Individualized Education Program (IEP). Information collected during the evaluation is critical for building the IEP, which provides specialized instruction and other supports in a unique way for each student.
A parent/guardian, teacher or school administrator can request an evaluation. A variety of tests and questionnaires are included. The evaluation looks for strengths and difficulties in many different areas, so input from parents, teachers and providers is critical.
Generally, the evaluation reviews developmental history and assesses cognition, academic achievement and “functional” skills. Functional skills are necessary for everyday living, and deficits might show up in unexpected behaviors, unskilled social interactions or struggles with emotional regulation. Strengths are measured alongside challenges and can provide important details for a robust program.
Evaluation is part of special education law
Nondiscriminatory Evaluation is a key principle of the Individuals with Disabilities Education Act (IDEA), which is the federal law that governs special education. The IDEA includes a mandate called Child Find, which requires school districts to seek out, evaluate and serve students ages Birth-21 who may have disabilities that impact school success or access. The mandate applies to all children, including those who go to public or private schools. Children who are homeless or wards of the state are included, as are children who move a lot. Children who are “advancing from grade to grade” are included in the mandate, if they may have disabilities that impact learning in non-academic areas of school.
When a student is formally referred for an evaluation, the school follows a schedule of deadlines. Districts have 25 school days to respond to a written request for evaluation. Some schools will invite parents to a meeting to discuss concerns. Being prepared with a written statement can help. Parents can also share information from doctors, therapists or other outside providers. Parents can mark a calendar to track these timelines.
Before a school evaluates a student, the parent/guardian signs consent. If school staff recommend an evaluation and parents do not agree or sign consent, then the school does not conduct the evaluation. Please note that parents are consenting to the evaluation, so that parents and schools can make an informed decision about what to do next. Parents can choose at the next step whether to sign consent for a special education program to begin.
If a parent initiated the referral and the school doesn’t respond or denies the request for an evaluation, the parent can request an answer in writing. PAVE provides an article about what to do if the school says no to your evaluation request.
Child Find mandates evaluation if there is reason to suspect a disability.
Students who are failing or behind their peers might have challenges related to language or access to school that don’t indicate a disability.
Parents who don’t understand the school’s reason can request a written explanation.
Schools cannot refuse to evaluate because of budgetary constraints. They also cannot refuse because they want to try different teaching strategies. School staff might use the term Response to Intervention (RTI). Although the school might benefit from a review of its methods, RTI is not a basis for refusing to evaluate a child for a suspected disability.
What happens next if the school agrees to evaluate? If all agree that an evaluation is needed, and a parent/guardian signs a formal document giving permission, then the school completes the evaluation within 35 school days.
In compliance with the IDEA, an evaluation for special education is non-discriminatory. If the child cannot read, for example, the testing uses verbal instructions or pictures. The child’s native language is honored. Schools have a variety of tools available to eliminate bias. Parents can ask for clarification if they suspect that the testing missed its mark because of methodology.
The IDEA requires schools to use “technically sound” instruments in evaluation. Generally, that means that the tests are evidence-based as valid and reliable, and the school recruits qualified personnel to administer the tests properly. The IDEA is clear that a singular measure, such as an Intelligence Quotient (IQ) test, does not meet the standard for an appropriate evaluation.
Don’t be intimidated by fancy language!
The formal language of the IDEA and the evaluation process can feel intimidating, but parents need to remember that they have a critical role as the experts and long-term investors in their child. If the evaluation data is confusing, parents can ask the school to provide charts or graphs to make it clear. Parents have the right to ask questions until they understand the evaluation process and what the results mean.
If the evaluation indicates that a student has a qualifying disability, the impairment will meet criteria in one of 14 categories defined by the IDEA. A place to get more information about each of these categories is the Center for Parent Information and Resources (CPIR), which manages a website called the Parent Center Hub. These are the categories:
A primary goal of evaluation is to identify a child’s strengths and needs in the general education environment. Regular classrooms are the Least Restrictive Environment (LRE) unless a student is unable to succeed there. The evaluation determines whether a student needs extra help in the general education setting, and the IEP team uses information gathered through evaluation to recommend an initial program.
The IEP isn’t a one-and-done project
The IEP shifts and changes with the needs of the student, so the initial evaluation is only the beginning. A new evaluation is required by the IDEA at least every 3 years, but a new evaluation can be initiated earlier if there’s a question about whether the program is working. The school and family are always collecting new information and insights, and the IEP adapts in real time with new information.
For example, the school might document that a student is failing to access learning in general education despite help that was carefully designed to make the setting accessible. Then the IEP team, which includes a parent or guardian, might discuss placement in a more restrictive setting.
What if I don’t agree with the school?
Parents can always ask school staff to describe their decisions in writing, and parents have rights guaranteed by the IDEA to informally or formally dispute any decision made by the school. The Center for Appropriate Dispute Resolution in Special Education (CADRE) offers a variety of guidebooks that describe these options. In Washington State, the Office of Superintendent of Public Instruction (OSPI) provides state-specific guidelines for dispute resolution.
Evaluation is a 3-part process
Not every student who has a disability and receives an evaluation will qualify for an IEP. The evaluation asks 3 primary questions:
Does the student have a qualifying disability?
Does the disability adversely impact education?
Do the student’s unique needs require specially designed instruction?
If the answer to all three questions is Yes, the student qualifies for an IEP and the protections of the Individuals with Disabilities Education Act (IDEA).
Eligible students are entitled to an education designed just for them. That entitlement is for a Free Appropriate Public Education (FAPE). Every student in the United States has access to a public education for free. An educational evaluation determines whether a student is also entitled to an education that is “appropriate,” with unique help so the individual can make meaningful progress toward goals despite the circumstances of disability.
Recommended guidelines for requesting an evaluation
Make your request in writing.
Address your letter to the district’s special education director or program coordinator.
You can deliver your request by email, certified mail, or in person. If you hand-deliver the letter, make sure to have your copy date/time stamped so you have a receipt.
You can track the days the district takes to respond. The district has 25 school days (weekends and holidays excluded) to respond.
Items that can be included in your letter:
The student’s full name and birthdate.
A clear statement of request, such as “I am requesting a full and individual evaluation for my son/daughter.”
A statement that “all areas of suspected disability” be evaluated.
A complete description of your concerns, which can include details about homework struggles, meltdowns, grades, failed or incomplete assignments, and any other mitigating factors.
Attached letters from doctors, therapists, or any other providers who have relevant information, insights, or diagnoses.
Your complete contact information and a statement that you will provide consent for the evaluation upon notification.
You can follow up if you don’t hear back from the district within 25 school days. When you provide consent for the evaluation, please note that you are not giving consent for your student to be placed in a special education program. You are consenting to the evaluation so that you and the school can make an informed decision about how to help your child succeed.
After receiving a letter of request for evaluation the school district has the responsibility to:
Document the referral.
Notify you, in writing, that the student has been referred for evaluation.
Examine relevant documents from you, the school, medical providers, and other involved agencies.
Tell parents/guardians in writing about the decision to evaluate or not. This formal letter is called “prior written notice” and is provided within 25 school days of the evaluation request.
Request your formal written consent for the evaluation.
Complete the evaluation within 35 school days after you sign consent.
Schedule a meeting to share the evaluation results with you and determine next steps.
Initiate development of an IEP, if the student qualifies.
Evaluation for Behavior Supports
Sometimes a Functional Behavior Analysis (FBA) is conducted alongside an educational evaluation when behavior is a primary feature of a child’s difficulty at school. The FBA uses tools and observation to identify triggers and unskilled coping strategies that can help explain areas of need for learning. The FBA provides the foundation for a Behavior Intervention Plan (BIP), which supports positive choices. BIP goals and strategies prioritize social skill development and emotional regulation tools. The BIP can be a stand-alone document or can be used with an IEP or a Section 504 Plan (see below).
A student may qualify for a Section 504 Plan, if not an IEP
Section 504 is part of the Rehabilitation Act of 1973 and provides for accommodations for individuals with disabilities that severely impact their ability to access a public building or a service, such as school. Sometimes students who don’t qualify for an IEP will qualify for special supports through a 504 Plan. Disability is more broadly defined under this Civil Rights law, and a disability that impacts a “major life activity,” such as learning, can qualify a student for accommodations and modifications in school.
Independent Educational Evaluation (IEE)
If you disagree with the evaluation and/or the school declines to offer any support services, parents can pursue a request for an Independent Educational Evaluation (IEE). While a request for an IEE is not required to be in writing, a written request is encouraged because it documents the request (see letter guidelines above). When granting a request for an IEE, the school district provides a list of possible examiners and covers the cost. If the school district denies an IEE request, the district initiates a due process hearing within 15 calendar days to show that its initial evaluation was appropriate.