Copyright © 2004 by Cynthia Teeters

Question: The school district refuses to test my child for learning disabilities. They say they are not required to test since he is in ESL (English as a Second Language) and is progressing. When I tell them about his past history of living in an orphanage, their eyes glaze over and suggest we wait and see. He works so hard but he is so far behind the other students. He's having a hard time learning to read. I really think he needs to be in special education. What should I do?

Answer: The difficulty that you face is that federal regulations require that schools determine eligibility for special education services based on a particular disability category. (Learning disability is only one available category.)

Special education services are not to be provided if the sole reason for intervention is because of either limited English proficiency (LEP) or lack of instruction in math or reading. If you are looking for special education services, then keep the discussion away from LEP and lack of instruction.

This is the obvious "bugaboo" for those of us who have children adopted at older ages by international adoption, since our children do have limited English and often have not received adequate instruction in math and reading. But then again, many of our children do suffer from disabilities that put them at heightened risk of school failure. It is for this reason that we should be looking to receive special education services.

So, how do we do this? Good advocacy is needed. The first thing to do is stop referring to the child's past. Instead, study federal or your state special education regulations and their definitions of disabilities that require special education services. Only disabilities that have an adverse impact on a child's education performance can be considered. The regulations list these as:

Autism
Deafness
Deaf-blindness
Hearing Impairment
Mental Retardation
Multiple Disabilities
Orthopedic Impairment
Other Health Impairment
Serious Emotional Disturbance
Specific Learning Disability
Speech Or Language Impairment
Traumatic Brain Injury
Visual Impairment Blindness

(I won't try to define these as many good advocacy sites and books will define and discuss them in more detail.)

So, the trick is to find the disability category from the list that best defines your child's needs. Then you need evidence that this is, indeed, a disability that your child can be classified under. Oftentimes we expect the schools to test and give us the evidence we need for the disability category. It is better if you can offer outside evidence of a disability before you approach the school for testing since the school will be less in a position to deny the request.

Sometimes this is easy if you have a medical or psychological diagnosis from a professional in that field. A good example would be for a child with diagnosed Attention Deficit Hyperactivity Disorder (ADHD). In this case an argument can be made that the child's disability adversely affects his school performance and, therefore, he should be classified under Other Health Impairment (OHI).

Other families have received classification under Specific Learning Disability (SLD), which is a catch-all classification that is usually determined by a significant discrepancy between measured potential and performance. Potential is most often measured by intelligence tests. Others have found that the IQ tests allowed for classification under the classification of Mental Retardation.

Still other families have received classification under Serious Emotional Disturbance (SED). Again, this is most often obtained with an outside diagnosis.

From my own experience, SLD is the hardest and most problematic disability category to obtain. Newly adopted children will often score quite low on popular verbal intelligence tests such as the WISC-III. These tests are not designed to test our children. This makes it very difficult for there to be a measured discrepancy between potential and performance. Non-verbal intelligence tests, such as the TONI (Test of Nonverbal Intelligence), will often give a more accurate assessment of the child's potential and, so, should be used.

Whatever the classification, if it is from the list above and is adversely affecting the child's academic performance, it qualifies the child as eligible for special education services. What is nice about federal regulations is that once a child is determined to be eligible, the team that puts together the child's Individualized Education Plan (IEP) is required to look at both the child's strengths and weaknesses in determining that plan.

Here is another important spot for good advocacy. After eligibility has been determined, you can then freely discuss the child's LEP and lack of instruction as being weaknesses that must be considered, as required by federal regulations. Many teams may resist this because they confuse eligibility requirements with IEP requirements. Don't let them; they are different.

If you are still looking for a classification under Specific Learning Disability and the school district refuses to test, you can look for outside testing. Testing for a complete psycho-educational evaluation will be costly but may be the ticket needed to force an eligibility decision. Alternatively, you can consider going into due process citing the school's violation of its "child find" responsibilities. If you win in due process, the school may be ordered to provide compensatory education services for the time your child did not receive special education services.