IEP vs. 504, adverse ed. impact

Discussion in 'Special Ed 101' started by pepperidge, Sep 12, 2006.

  1. pepperidge

    pepperidge New Member


    We had a study team meeting this morning to determine if my youngest son qualifies for an IEP.

    In a nutshell, we had a very good private neuropsychologist report done...
    He has a fetal alcohol effects , ADHD esp. with executive functioning issues, and while the neuropsychologist didn't really pronounce on the bipolar question, we have psychiatrist's report that he has a diagnosis of bipolar disorder. The latter I am not sure is correct, but he clearly has severe mood dysregulation.

    He is now in 4th grade. HIs school performance has generally been going downhill, as higher order thinking is being demanded. He has issues with reading comprehension, following logical steps to do multiplication problems, those type of issues. Basic reading skills, math facts ok. Has slow processing speed. Visual spatial problems. He is of average intelligence but will perseverate with strategies that don't work. NO major behavioral issues in school. He likes school, wants to please. Operates under the radar screen,when they work with partners he tends to copy other's work.

    What we see he needs is an adult to work with him at some point during the day to model learning strategies and help him practice reading comprehension, math problem solving etc. Try to help him address his ex. functioning issues.

    The director of Special Education says that he qualifies for an IEP under an OHI designation in terms of his diagnoses, but that since he is not at the bottom 2 or 5% he doesn't qualify for specialized education. He has the right diagnoses, but he is not at the bottom of the heap so no IEP. Since he hasn't failed (though he has come very close) it is hard to make the case for adverse ed. impact. He wants to put him on a 504.

    They are willing to give him accomodations--they are supposed to come up with them by next week. We kept making the point that he needs some kind of support in addition to the teacher (who is excellent by the way) to work with him on higher order type skills. What they will come up with remains to be seen.

    We made it clear that we would prefer an IEP. The Special Education director says that a 504 offers same protection as an IEP (I said, show me, so they will address that issue in the next weeks meeting). I said that we were not looking to pull him out of his regular classroom, just to have someone work with him on a 1-1 basis to give him the individual attention he needs to make sure he has and can use strategies to solve his reading comprehension difficulties and his math difficulties.

    Bottom line, I guess I have three issues.

    1) Are they going to give him the support he needs, under either a 504 or an IEP?

    2) My understanding from here is a 504 is a much weaker document (it is not even clear from the meeting who is in charge of drawing it up!), but I would like to be armed with some facts about the differences. Any suggestions on where to look? what to say?

    3) How to we rebut adverse educational impact? The neuropsychologist report basically says I think that while there is not a huge gap right now between his cognitive abilities and his performance, he is an extremely high risk kid in large part because of his ex. function issues which will become more severe and apparent as the difficulty of the work increases. The substitute school pyschologist was a real zero in the whole discussion; the only thing she said of use was that if he doesn't need an IEP now he will most likely need one in the future.

    If they do come up with reasonable accomodations (and I think generally the individuals are well meaning and will try to come up with some stuff) do we let the fight go for now about the IEP? We made it very clear and they also proposed that we need some clear benchmarks to see how he is doing. His teacher (who was our other son's teacher for the last two years) is a great teacher, and once he is clued in he make some of the accomodations on his own, 504 or not. But he obviously can't give him the one on one time that I think he needs to see what is actually getting through my son's brain.

    One thought we had (privately) is that maybe we ought to hire the title I reading teacher who is great to do some after school tutoring on the reading side. His teacher is going to start once a week after school math tutoring in Nov, which I helped with in the last two years. That will certainly help on the math side.

    While part of me wants to take on the school, the other part says that maybe we do not have the strongest case and it is not worth the fight at this time. Save the battle for a bit later down the road.

    What do you think?

  2. Sheila

    Sheila Moderator

    There's no such thing in the federal regulations. Eligibility is decided by the IEP team members, which includes you.

    "IEP or 504" is a thread in the Sp Ed Archives.

    Educational impact and special education is a hot topic of late. There are another couple of threads in the Archives.
  3. Martie

    Martie Moderator

    Dear Chris,

    school district are reluctant to put children on IEPs because of what is PROBABLY GOING TO happen as the work becomes more difficult and abstract. However, this "waiting to fail," issue is becoming big as Sheila said, and is not required by law. The longer you support your child with outside tutoring and other supports that the school may or may not acknowledge, the longer it will be before he fails. No child should HAVE to fail to get services. you said, "he likes school," That's really good but it won't last if he is failing.

    I would point out the above to the school. The "flex serve" model emphasizes effective intervention to prevent failure and represents "highly effective practices" which the law requires (not to be confused by "best education," which the Supreme Court barred in Rowley, 1982)

    As far as a 504 plan: they really work best for accommodations of a physical nature (second set of books, extra time, different location) rather than educational services to the child per se. Other problems with 504s include
    1) You have no participatory rights as you do with and IEP
    2) There is no monitoring requirement
    3) There are no clear rules for writing the goals (as you found out--you don’t even know who is writing it.)

    I always say that the "proof" 504s are weak is the frequency with which schools offer them. Recently, there have been some posts about people being offered 504s without evaluations--this is not your situation but it happens to be illegal.

    I know you will do whatever it takes to help your child--we all do that as much as we can. Eventually, however, your child may fail and THEN qualify. By then, he will have lots of other problems. The school district cannot arbitrarily set an all-purpose level of failure:

    Look at what would be going on with any intellectually gifted child--he or she could never qualify because until adolescence (and school refusal--and total shut down that often occurs then) there is almost never that level of failure (lowest 2 to5%). The criterion is "negative educational impact." How can a child who is operating well below potential not be having a negative educational impact?

    In one of the threads Sheila cited, I comment at length on how I got my ex-difficult child qualified (as SED) even though he was at or above grade level. I know you son does not have these problems and granted, mine had a bunch of behaviors that the school found to be bothersome (being euphemistic--they found him to be a PITA--which is not an eligibility category.) However, under the reasoning your school district is using, they would have found my son NOT to be in the lower 2 to 5% and therefore not qualified.

    Bottom line is a school district cannot use an arbitrary cut-off on a OSFA basis. Whether to “take them on” at this time or wait for failure is a tougher call BECAUSE you are happy with the teacher. I think I would have the above theoretical discussion with them (and make the points of law outlined to lay a foundation) and then monitor your son's percentile ranks VERY carefully. If he is not gaining at the exact rate he should be, i.e., nine months of reading gain in nine month's time, his percentile rank will drop. Dropping percentile ranks is one of the surest measures of negative educational impact. This is explained in the Wright's book Emotions to Advocacy which I recommend to people as a good source on the meaning and uses of dropping percentile ranks. It is on this basis that Pete Wright won the Carter case before the Supreme Court. The same information also may be on their website for free (

    Finally, on the subject of support: I stopped supporting homework because it was ruining our lives. Not surprisingly, as soon as ex-difficult child just did not do homework and found out there was not really anything the school could do about it (except give him bad grades) THEY were in the "Catch 22" because if they were consistent and graded him down for lack of homework, they would "prove" the negative impact. As I said, the real reason for my resigning from homework is what it was doing to our family but what it did to the school was also part of the qualification mix. It was such a big issue that eventually, homework reduction was a major part of his IEP. Of course, I took a lot of flack for my resignation, but I asked if they really wanted to see how well I could do the work which is, of course, what would have been going on had I continued. They would have been happy with that myth as long as I would have kept perpetuating it. I decided to stop and then the negative impact became very obvious. There were a few rough months while they "motivated" ex-difficult child to do homework through various ineffective means but in the end of course, no one can ever win with a passive-aggressive kid. No homework was done; they feared “contagion;” so they gave up and qualified him.

    Although there are major differences in the details, I think the themes are similar enough to be worth mentioning, including that my "resignation" came during 4th grade. This is when kids who are bright but have EF or serious motivational problems start to fall apart.

  4. pepperidge

    pepperidge New Member

    Martie and Sheila,

    Thanks for your replies. As always, very much appreciated. I see that I need to get some info on 504s and what they legally entail. Any ideas on that?

    I suppose that for my son the school district could argue that his performance (barely passing) is not out of line with his cognitive abilities-- a stretch. If we are no longer tied to the discrepancy formula, what constitutes adverse impact? If I go to mediation, what is the best kind of ammunition on this score?

    With my oldest son (the one like yours Martie) it was easy as he was as you say a major PITA to everyone in the system.

    As for the team deciding if he needs an IEP, if only the parents want it and everyone else defers to the Special Education director, so what if the parents want one?

    You also give me some ideas re monitoring, Is there a reading test that he can be given say every month as you suggest to see how he is doing? I suppose that if he fails his chapter tests in math (which he does, he only passes because his workbook which he theoretically does on his own at school-but I wonder) also counts.

    I also realized after the meeting that perhaps the fact that I had to pay for four weeks of tutoring this summer is also evidence of adverse impact.

    I suppose that the school district will tell me that they do not want him to fail--thats why they are prepared to make accomodations in the 504.

    So we have had the child study team meeting. They may come back next week with a draft of a 504. Suppose I say that it is ok--assuming that I like the accommodations, but that I want it in an IEP. What would the chances be that I would prevail in mediation?

    Thanks for your advice. I will do some research on Wrights Law this weekend.

  5. Sheila

    Sheila Moderator

    Differences between IDEA/IEP and 504s are in the Special Education archives.

    Having to have a tutor is definitely evidence of adverse impact.

    The school district should have provided you with Procedural Safeguards. It should have a section on options pertinent to steps the parent can take when there is a disagreement between the school district and parent.
  6. Sharon1974

    Sharon1974 New Member

    Just wanted to put in my word of caution on 504s. My son has one. They had to re-write it 5 times before I accepted it. I actually wrote up what I wanted it to say and emailed it to them!!!

    Don't let them write things like "should", "try", "whenever possible". It should be very clear cut what WILL be done. Not that it will be done when it is convenient fot them.

    "The teacher should assist with clearing of unrelated materials." should be written "The teacher WILL assist with clearing of unrelated materials." or example.
  7. Sheila

    Sheila Moderator

    Sharon, you are very lucky.

    One of the problems with a 504 the parent is not required by federal law to be a member of the 504 committee.

    It's always prudent to check state laws and school district policies. Sometimes they tender rights to parents that are not set out in 504 federal regs.

    One of the major differences between IEPs and 504s is the parental rights conveyed by federal law.
  8. helpmehelphim

    helpmehelphim New Member

    Hi everyone. If Chris went ahead and hired someone to help her son "bone up" on EF type issues due to the fact that she didn't agree with the school district and wasn't prepared to go down that road of him failing, couldn't she then get reimbursed for that?

    I agree so much with Martie about the child getting frustrated and experiencing failure and then how much harder it is to keep going. My son is like you described Martie in that his IQ is high, he has been in gifted classes (so he had an IEP in place for that) but started hitting a wall due to EF issues and boredom. And it seemed everything was a fight last year because there was no way he scored close enough to failing to get accomodations. It's a catch 22.

    I don't understand though why if there's a neuropsychologist evaluation that specificies EF issues why wouldn't they write up an IEP for such things as printing vs. cursive or extra time on tests?

    The problem though that I found with our school last year was even when I fought for a certain accomodation say speech therapy for social skills/cues, the quality of help and the extent or time given to helping was low. And the school psychologist told me that I should really get outside help for Occupational Therapist (OT) (in considering SI issues) because a 15 minutes once a week wasn't very effective and the again the quality was low. Great.... We did get outside help but not everyone can do that and I recognize that. Just some thoughts.
  9. Martie

    Martie Moderator


    Chris will NOT be able to be reimbursed because she did not go through the whole procedure one needs to do in order to be eligible for reimbursement. Since that also involves going to Due Process, that would be WAY more expense than 4 weeks of tutoring. However, the tutoring is evidence of negative educational impact.

    Chris, if difficult child #2's IQ is in the average range, then "barely passing" is negative in my opinion. Any nationally normed individual reading test, such as the Stanford, that is administered monthly will give you the answer. At the beginning of 4th grade, a child at the 50th %ile reads at the 4.0 level. To STAY at the 50th %ile that same child must read at 4.9 at the end of May.

    Here's a good example: "Pie in the sky" IEPs often indicate children will "catch-up" during the year--sometimes by as much as two or three grade levels. If a child has significant Learning Disability (LD) or EF and is struggling, what would make ANYONE think the child could gain at a rate of 2 to 3 times faster than average? The only children who ever do that are those who do NOT have Learning Disability (LD) problems but for some reason, have not been given an opportunity to learn. One of my students gained 6 years of reading level in 6 months. Of course, he had never been to school more than 3 weeks in any school year until he spent most of one year with me. I could essentially teach him to read and get such spectacular gain scores because no one else had done it. It also helped that he suddenly (at age 16) did not want to continue to be illiterate for his own reasons. So he gained a grade level a month, but I have never seen another student do that.

    What happens more frequently is unless parents are savvy about monitoring percentile ranks, then children LOSE %ile rank because they do not gain 9 months of proficiency within 9 month's time. As Sandra Day O'Connor put it in the Carter decision--words to the effect that ..The longer Shannon was in school, the further behind she fell. Yet when her parents found an effective program (at their own expense), she gained in relation to her peers, i.e., more than 3 year's gain in the three years she was in the private school.

    Pete Wright made this case by showing percentile rank drop which the public school never addressed over all of Shannon's school years until her parents' unilaterally placed her.

    The monitoring doesn't have to take years. In your school district, I would think that failure to make adequate progress for one year should do it. This also can be done for math--and should be, if it is a concern. The other thing that is good about this approach is if the child is already behind, then one is looking for a year's gain in a year's time. The school district can't say, "Well we can't be expected to....because he didn't start at grade level." Response: "No, but how about maintaining the percentile rank he has?" So if a child starts at the 24%ile, he will have to gain 9 months just to remain at that %ile at the end of the year.

    Wrightslaw is very effective in explaining this stuff and demystifying percentile ranks. I use their material with students who "don't get it," despite knowing how to give these tests--scary thought--they are the ones who are guilty of writing the absurd "catch-up" IEP goals.

  10. Sharon1974

    Sharon1974 New Member

    I know that parent participation in not required for a 504 - but since the school district broke the law by offering one without an evaluation (which they refused to do) I don't think they wanted to step on my toes any further. I am having him evaluated privately since I got nowhere witht the school district all year. If they don't like the evaluation results, I will probably take legal action.

    Going along with their 504 plan will help my son in the interim. He has an absolutley wonderful teacher that is really good with kids like him, and an in-class support teacher (that is shared with some other children). He is still not happy about going to school this year, but the teacher has been really good with him. He can't say anything bad about school this year and he hasn't gotten sick (headaches, stomach aches, vomiting, diahrrea)....yet. I am hoping for the best. I know I was a real P I A last year, and they were not happy when I kept telling them that their 504 was no good (they did write it without my presence, that is why I emailed them what I wanted it to say), but I got what I wanted in the end (sort of).