Can school say deficits are not severe enough to qualify/warrant in-school therapy?

[Laura P]

I keep being told that "just because a child is recommended private speech & occupational therapy doesn't mean that he will qualify for the services through school." 

I'm new to the IEP process and it's been a confusing year filled with misinformation from our school. Our son started speech therapy at 18 months old through (state) Early Intervention when he was referred by his pediatrician. At the time, he also was diagnosed with motor delay, adaptive delay, cognitive delay, and communication delay. At that time, he received speech therapy only because the program stated that ST was all they had funding to support. After one year, his services were discontinued when I was told the program ran out of funding. I didn't know then that what happened was not legal. 

Fast forward to us moving to another state with more resources a year later. He's 4 years old. His new pediatrician refers him for (private) speech and OT evaluation, and both evaluators recommend 1 hour of each per week. At the time, I had a lot of difficulty taking off work for both, so we settled for 1 hour per week of most severe need, which was speech therapy at that time. We paid privately. At the recommendation of a friend, I contacted our current public school district to see if he could get services through the public school system (2 block from our house rather than 30 minutes away), and he had a superficial evaluation then. I was told at that time that even though his SLP and OT had recommended 1 hour of each therapy once weekly for a year, he wasn't severe enough to qualify for services through the school district. I didn't understand then that he should have been formally transitioned from Early Intervention to the public school system. We paid for his private speech therapy for about a year until the taking time off work, getting him out of school and back into school was just too much, and we spaced out appointments then stopped when the pandemic happened. 

He's been struggling through 1st and 2nd grade. He was diagnosed with combined ADHD/ADD in August and she recommended referrals back to OT and SLP and also for assessment for auditory processing disorder. I emailed formally to request a 504 plan in October 2022, and the school guidance counselor delayed until April 2023. I also emailed the special education supervisor at school to request an IEP in December 2022, and we are having the referral meeting this week (June 2023) to determine whether he will qualify for evaluation for special services. Over that year of delayed accommodations, he saw a SLP who recommended speech therapy 1-2 times weekly for a year; OT who recommended OT 110 minutes (55 min x 2) per week for a year; second OT who recommended 60 minutes OT per week for a year; and an audiologist who diagnosed with auditory processing disorder and recommended weekly therapy for this. All of his deficits impact his ability to receive FAPE. I've given the school all of the reports, but they minimize their recommendations.

Repeatedly, the principal and teachers keep saying "just because a therapist recommends weekly therapy does not mean a child needs to receive services through school" and "just because a child needs therapies does not mean they are severe enough to receive their services through school." Is this true? If so, how would getting an IEE even help bc if the IEE evaluator says he needs therapy, couldn't the school still say, "it's not severe enough" and dismiss the IEE evaluator's recommendation? The school counselor was even so bold to say that the private evaluators recommended therapy to my son (intermittently throughout his entire life so far) just so that they could be paid by me, not because he actually needs them. 

[Carolyn Rowlett]

Wow.  I can't imagine how frustrating this must be (and has been) for you.  School districts often play the "delay and deny game."

Unfortunately, the law does have loopholes that allow delay in some instances.  For example, the 60 days that the school district has (or whatever timeframe your state has) to determine eligibility only starts after the parent signs the consent for evaluation.  So sometimes you have to be a squeaky wheel to even get the referral meeting.  But you've got that scheduled now, so the delay game should be over.  Here are my recommendations based on various outcomes (DISCLAIMER:  This is NOT legal advise):

1. For the upcoming referral meeting, even though you have sent all of them previously, make sure you bring copies of all your outside evaluation, diagnoses, doctor recommendations, etc.  Also, are his grades suffering at all due to his disabilities?  Grades are subjective, but if he is falling behind in class, that is relevant.  Has he been given any standardized testing or interventions of any type with progress monitoring?  If so, get those results, as well.  Finally, if you think he/she might be helpful, you could reach out to the general education teacher and ask for instances in which his various disabilities (whether that be his ADHD, speech, etc.) have affected his ability to learn (the legal phrase being "access to the general education curriculum").  Make sure you bring up ALL areas you are concerned with during the referral meeting.

2. If the school agrees to do an evaluation, make sure when you get the consent form that ALL areas of disabilities that you have concerns in are checked.  Sign and return as soon as possible because this starts the 60 days (or whatever timeframe your state has determined).  If the school does NOT agree to do an evaluation, request an IEE (yes, even though the school district can repeat its mantra of "not severe enough" and dismiss after consideration.

3. Once the school evaluation is done (or IEE, is school refuses to evaluate) and an eligibility meeting is scheduled, make sure you review (I suggest downloading and printing so you can take to the meeting) the state plan for special education, the state standards and indicators for eligibility, etc. and become familiar with them.  If the school denies eligibility based on "not severe enough," make them match the data to the eligibility standards and make them explain WHY his disabilities are not severe enough.  It's about objective data - not what the school "thinks or feels."

4. If the school does their own evaluation and denies eligibility, request an IEE based on your disagreement with their evaluation.  They can ask, but cannot make you give a reason other than that you disagree.  99% of the time school districts will agree to an IEE because otherwise they have to take you to court to show why one should not be granted.  Once you get the results of the IEE, you will be entitled to another meeting.  If they still deny eligibility, your only option at that point is going to due process.

A couple of general suggestions.

1. Reach out to your state department of education and ask for agency recommendations for advocacy.  

2. Put EVERY request in writing.  If you find yourself on a phone call with school district staff, follow it up with an email outlining the relevant points of the conversation (especially what they agreed to).  Follow up meetings with an email as to what was said and agreed to.

3. Keep in mind that lack of funding and being short-staffed are NOT excuses that can be made by school districts if a child qualities.

4. I don't know what the result of your 504 meeting was, but since the IEP process might take a while, make sure you get all necessary accommodations in a 504 plan now.  Look at your outside evaluations for suggested school accommodations.  If there aren't any, reach back out to the evaluator/provider and ask for some.  Like an IEP document, the 504 document can be amended at any time.  You don't have to wait until the annual review.  So if you didn't get everything in there during the April meeting, you still can.

5. Just an FYI.  It's doubtful you will get the school district to do any auditory processing disorder therapy.  But it should be covered by your insurance.  Summer is a great time to do it, but I do understand you will still be working and transportation could be an issue.

 

[JSD24]

I think this is very typical.  In the education world, they look at access to getting an education.  Medical therapists look at this as well but also look at access to the rest of the world.  Given the different criteria, you'll often find that outside therapy is easier to qualify for as well as being more comprehensive.  EI tends to use a medical model.