Q and A

NOTICE:  Neither this page nor the links posted on it are being updated.  Readers are advised the information contained may be outdated or incomplete based on current caselaw.

1.0 PLACEMENT

1.1 Screening/Evaluation/Identification

The question:   Is an individual assessment always required for IDEA services?

Question:  I’ve read that the Rowley decision is flawed.  A former state sped director tried to convince teachers of the blind, on the basis of the Rowley decision, that they should not qualify all the high functioning blind and visually impaired students because, if they weren’t failing, they did not need and were not eligible for, special educational services.  Was she right?

Questions re 504: There has been some disagreement in our school regarding the following:   (a) If a student doesn’t qualify for 504, does that mean s/he automatically doesn’t qualify for 504?;  must the committee document adverse affect in order to entitle the student; and (3) what constitutes a disability under 504.  Also, who can evaluate a student for 504 eligibiity, who decides whether the student qualifies for 504 services, and what happens when the parent and school disagree? 1/5/2016

Question:  Is response to medication a good diagnostic indicator for ADHD? 7/4/2014

Question:  Is a private school responsible for conducting its own evaluations of children who might be suspected of having a disability?

 Question:  How do I  test a non verbal student with cerebral palsy (and no pointing ability) in order to determine whether or not he qualifies for a mental health program?  3/11/14

Question:  My state regulations say that in order for a child to qualify under the IDEA as Intellectually Disabled, he or she must have an adaptive behavior score two standard deviations below the mean.  Should we interpret that as requiring a standard score on the composite or total score two standard deviations below the mean in order to qualify the student?
The question:   Is an individual assessment always required for IDEA services?

Answer:   Schools are required to provide a comprehensive evaluation at no expense to the parent for any child suspected of a disability under both the IDEA and Section 504, both for initial and reevaluations.  (Section 300.304)  In 1997, Congress. paraphrasing,  defined a comprehensive evaluation as one that was sufficient to determine eligibility AND to identify all of a child’s special education and related service needs, leaving it up to the IEP team to determine at the triennial to determine if it needed additional assessments to determine both .  If it needed additional information to determine eligibility OR to to determine the child’s special education and related service needs, then parental consent would be required for that testing  See current Section 300.303 and 305 (link below).   What some people didn’t recognize at the time was that the option expressed therein ALSO applied to initial evaluations.   So the short answer to the question would be, “A comprehensive evaluation is required for every child suspected of a disability, but that it would be up to the IEP team to decide whether or not additional testing was needed.”

For a child suspected of SLD, under the IDEA, the answer would vary based on state required screenings and evaluations (and whether the school had them at the time of referral).  NC requires schools to provide psych evaluations for children suspected of SLD including an intellectual AS NEEDED regardless of methodology used.   So it’s an IEP team option to decide.   In 2020, that language will disappear entirely when NC switches to RTI procedures only.   However, at least two states (Maine and Georgia) require states to document assessments for psychological processing disorders.   Assuming those assessments were not completed prior to referral, then additional testing would be required.

There is of course still another scenario, and the question there would be, “What are the school’s obligations if a parent refers with respect to providing a comprehensive evaluation if it does NOT suspect a disability?”  The short answer there would be to inform the parent of its decision in writing that it’s not going to honor her/his request, give the reasons why, and provide the parents with their due process rights to an impartial hearing.

If, however, the public agency does not suspect that the child has a disability and denies the request for an initial evaluation, the public agency must provide written notice to the parents, consistent with § 300.503(b) and section 615(c)(1) of the Act, which explains, among other things, why the public agency refuses to conduct an initial evaluation and the information that was used as the basis to make that decision. The parent may challenge such a refusal by requesting a due process hearing,  p.  46636, 2006 FR.

Also see OCR’s Clarification of a school’s responsibility to evaluate children suspected of ADD from back around 1993.  And then compare it to their more proactive stance in 2016, post ADAAA 2008.  (Although the question apparently originated over an IDEA concern, when you’ve completed an analysis under IDEA, you really can’t just stop there.  The ADAAA of 2008 greatly expanded the number of individuals protected by the Act.)

That seems pretty straight forward, but it isn’t really.  For example,  how do you determine that you do not have a suspicion Johnny does not have a disability?  You can’t just say, “Well, he’s passing, so we don’t think we should evaluate him.”   That is because even if a child is getting good grades and passing from grade to grade, the 2006 FR is clear . . .

” We also believe it is important to clarify that a child suspected of having a disability but who has not failed, is making academic progress, and is passing from grade to grade must be considered in the child find process as any other child suspected of having a disability. As noted earlier in the discussion regarding § 300.101, paragraph (c)(1) of § 300.111 has been revised to clarify that children do not have to fail or be retained in a course or grade in order to be considered for special education and related services.”  p 46584 2006 FR

In order to have a defensible position should their decision be challenged, schools should at the very least  complete the prescribed elements in 300.305

(1) Review existing evaluation data on the child, including—

 

(i) Evaluations and information provided by the parents of the child;

(ii) Current classroom-based, local, or State assessments, and classroom-based observations; and

(iii) Observations by teachers and related services providers

before deciding.   But the school does have the option of determining how much risk it is willing to undertake.  We have regularly suggested that just because the law says you can shoot yourself in the foot, that doesn’t mean you should.  But history has shown school authorities oft times take a perverse pleasure in shooting themselves in the foot.  Multiple times sometimes.

If the evaluation requested isn’t unusual and would take no more time than it would take to compose a letter and then explain to an angry parent why her child’s not being evaluated, it would in most circumstances be prudent to have a firm basis (that is, the result of a comprehensive evaluation) to base one’s decision upon.   Forest Grove, a case that spent ten years in the federal court system, is an example of that.  While the school eventually prevailed, their school psychologist had told the parents he wouldn’t evaluate for ADHD because it wouldn’t make any difference in services that he received in school.   Had that evaluation been completed, the school would have been in a much stronger position and the outcome of the case might have been achieved much sooner.   Speculation, of course.

Leaving aside that scenario, there are at least two other occasions when a team might move directly to an entitlement decision.   The first would be in a state where using a state sanctioned RTI procedure with all the attendant screenings resulted in (a) all the documentation required by the state for SLD entitlement and (b) was sufficient to show that the child needed more services than could be reasonably provided in the general ed environment.  The second (b) would be when a parent brought in a privately paid for IEE addressing all the elements required by the state to determine eligibility in one of the categories.    (Today, a parent might bring in an evaluation including an intellectual and achievement component to seek SLD identification, but if the school was using an RTI methodology, they would perforce have to consider that evaluation, but they’d still need to do their Tier III interventions.   However a diagnosis of dyslexia in many states would get the child additional services from general ed and could in all states be sufficient to determine eligibility under 504 . . . assuming that the 504 group agreed.  (Not necessarily a slam dunk.)

Forms determine process, and as an example of an OSEP approved   referral form,  NC gives IEP teams three options upon receipt of a referral, paraphrasing:  (1) no evaluation; (2) determine eligibility based solely on existing data; conduct evaluation.

And once an option is codified into a state form, at least at the school level, that’s the end of any discussion.

Question: I’ve been told school psychologists should not diagnose dyslexia; so what should I tell a parent who asks if we evaluate for dyslexia?

“Dyslexia,” as others have ponted out, as defined in the literature only refers to a subset of reading disabilities that would be included in the DSM V criteria for a diagnosis of specific learning disorders (or the IDEA criteria for classifying a child as SLD.)

Nevertheless, in response to the original question,  in New York state, there is currently a bill passed by the legislature but still (as of February 2017) awaiting the governor’s signature requiring certification of teachers and admnistraters in the area of dyslexia.   The key line in that bill affecting the above question was:

IF

THE COMMITTEE OR SUBCOMMITTEE HAS REASON TO BELIEVE THAT  THE  HANDICAP-

PING CONDITION MAY INVOLVE DYSLEXIA, AS DEFINED IN PARAGRAPH B OF SUBDI-

VISION  SEVEN  OF  SECTION  THREE  THOUSAND  FOUR  OF THIS CHAPTER, OR A

RELATED DISORDER, THE CHILD SHALL BE EVALUATED AND TESTED  ACCORDING  TO

CURRENT  SCIENTIFIC  UNDERSTANDING  OF DYSLEXIA TO DETERMINE WHETHER THE

CHILD HAS DYSLEXIA OR A RELATED DISORDER.
(Caps are theirs, not mine.)

Nevertheless, even if the law is not signed by the New York governor,  Section 104.35 of ED’s 504  regulations requires schools in EVERY state to provide parents with a free, comprehensive evaluation if a disability is suspected.   If a school psychologist is prohibited from evaluating for a specific learning disorder, then who is the school going to to get who can?  Legally it is not a choice.  It’s an obligation under federal law irrespective of any state laws. .

The  confusion here may arise from a failure to make a distinction between classification and diagnosis.   School psychologists don’t classify (not even in California, where state law requires them to recommend a classification when appropriate.)  That’s the prerogative of Eligibility Groups, including the parent.   But they are not prohibited from diagnosing a disability, whether it be ADHD or dyslexia.

Another possibility is that the person advising against a dyslexia diagnosis may have been relying on an old NASP document recommending that school psychologists NOT diagnose dyslexia “to avoid confusion.”  However, that document has since been replaced, the dyslexia language deleted, in a new NASP Position Statement on the Identification of Students with Learning Disabilities.  The newer statement does not mention dyslexia at all. Unfortunately, if you Google the title above, the older version still maintains an after-life, having been archived on a number of non affiliated websites.

Last year, OSERS wrote a letter saying that “ there is nothing in the IDEA that would prohibit the use of the terms dyslexia, dyscalculia, and dysgraphia in IDEA evaluation, eligibility determinations, or IEP documents.”  A dyslexia diagnosis doesn’t tie an Eligibility Group’s hands under IDEA or a committee under Section 504.   The DSM 5 criteria for a specific learning disorder actually covers a greater range of reading problems than the label “dyslexia,” but there’s no reason a school psychologist couldn’t evaluate for both.

Yes, Virginia, we Do Assess for Dyslexia

The federal definition of a Specific Learning Disability has since 1975 included dyslexia as a disability covered under SLD.  Courts have concurred:  schools have a responsibility to evaluate for dyslexia.    We do evaluate for dyslexia whenever we evaluate for a Specific Learning Disabilities even if we do not call it that.   Dyslexia is a reading problem that is based upon reading problems at the word level involving difficulty in mapping sounds onto letters.  SLD and specific learning disorders cover a much broader range of reading problems than that.

With respect to the question, “What should we tell parents,” North Carolina in 2011 provided a relatively pithy response:

Clarification of North Carolina’s Recognition  that Dyslexia is a Specific Learning Disability

“Developmental reading disorder, also called dyslexia, is a reading disability, resulting from the inability  to process graphic symptoms.  Children with dyslexia may have trouble rhyming and separating the sounds in spoken words.”  When asked by a parent whether a child can be  tested for dyslexia, the IEP team should respond that dyslexia is one condition, which may result in a learning disability in one or more of the eight areas identified  in the federal and State definition of SLD.

School districts ignore a child diagnosed with dyslexia at their peril.  There have been a number of court decisions involing children with dyslexia, most resulting in unfavorable decisions.

In a popularly available case on Wrightslaw dating back to 1997, a hearing officer found in the James Brody case  that:

“Dyslexia is a learning disability for the purpose of the Individuals with Disabilities Act, 20 U.S.C. Section 1400 et seq. (IDEA), and a child with special needs pursuant to North Carolina’s Special Education Act, G. S 11C, Article 9 (State Act).  “

If that was all there was, it wouldn’t be too persuasive, but the issue has come up again and again in the federal court system.  Two examples follow:

Jarron Draper v. Atlanta Independent School System, District Court, 2007   Peter Wright also has a web page devoted to a discussion of this case.

Michael P. v. Department of Education, Ninth Circuit, 2012    There is a discussion of this case at the  Hawaii Branch of the International Dyslexia Association

The problem these schools had wasn’t that they failed to identify a child with dyslexia as SLD.  The problem generally has been that they simply dismissed the dyslexia diagnosis out of hand and relied upon a single methodology (e.g., 15 points you’re in, but 14 points too bad, so sad,  you’re just a slow learner).  It’s the same problem we saw in a more recent case, V.M. v. Sparta, District Court, 2014.  That child had been diagnosed with dyslexia, but the school basically ignored everything, absolutely everything, when the kid didn’t have the magic number required in its discrepancy formula. (That case was from New Jersey.)

Answer:  Thus far, as best I can determine, the Rowley standard still prevails.

However, John is correct.  If the rights of a blind child to equal access are not crystal clear from the IDEA regulations (and I think they are), then no doubt whatsoever should be left by the ADAAA of 2008 and the 504 regulations.

While the Rowley standard still prevails, it also has been widely misinterpreted (even by me back in the early 1990’s.)    Some of us interpreted Rowley as meaning that a child did not qualify for services if he or she was getting all c’s and passing at grade level.   Nonsense.   Rowley had nothing to do with eligibility, and Amy had been identified and was receiving services from an IEP.   The court’s ruling was that since Amy was receiving benefit from her IEP, she was receiving FAPE.   The federal regulations have been quite explicit in saying that  it is not necessary for a child with a disability to fail in order to qualify under the IDEA.   Section 300.101 of  2006 FR said “Children advancing from grade to grade. (1) Each State must ensure that FAPE is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.”

That wasn’t new.    In 1999, OSERS wrote essentially the same thing in its language defining FAPE at 300.121 and in its Child Find regulations at 300.125 (1999 FR)

Although OCR has generally held that if a child is being appropriately served under an IEP, then the school is meeting its obligations under 504.   However, the fact that generally that principle holds does not mean that it will always hold.   (Guy’s axiom:  When a school thinks it has found a loophole in the CFR, more often than not it has happened upon a hangman’s noose.)   School systems that do not provide children with disabilities an IEP or 504 Plan because  “gee, the kid was passing,” are more likely than not going to end up on the short end of a stick in any adversarial proceeding.

Section 504’s requirements define FAPE as leveling the playing field. (For specific language, see link preceding.)  If a child with a disability needs a service to provide him with equal opportunity (a different standard than that under the IDEA), he or she is entitled to that service.   Determining that a child has a disabliity since the ADAAA of 2008 is supposed to be a pretty simple process, and the standard under 504 for determining a substantial limitation is considerably less than it would be even under the standard I’ve cited above.

I’m not prepared to provide every relevant link here, but a good start, including links to the ADAAA, can be found on our website.   One example of OCR taking a position on Electronic Book Readers for the blind in colleges can be found in this 2010 letter.    School systems have not been immune to complaints over web accessibility, either.   This gets a little sticky, but a parent can file a complaint directly with OCR if it contends that a child is being discriminated against because, as a matter of policy, the school system will not consider him/her for services designed to grant him equal access to the curriculum.

OSEP has issued several letters specifically addressing issues for children who are blind.  I regret that we have NOT added them to our website.   The letter to Patty Murray (2012) summarizes the legal requirements currently in place regarding children who are blind.   (It runs eleven pages.)  The 2006 FR specifically mentions blind or blindness (including deaf-blindness) 96 times.  Rowley does not negate the burdens imposed by those regulations.   The Preface (Comments and Discussion) section might be worth doing a word search on, but the language regarding children are blind in  Section 300.29  (Native Language) ,  300.34 (Orientation Services),  300.172  (Access to Instructional Materials), 300.210 (Purchase of Instructional Materials) ,  and   300.324 (Development of an IEP),  all carry the force of federal law.   I would suggest checking your state regulations to be sure it has not added additional burdens on school systems.

Question: A parent and her advocate recently told a principal when he was going over a student’s test results that the IDEA requires tests used for high stakes decision making to be peer reviewed.  Since he was unable to show her in the manual that the tests the school used were peer reviewed, she said that results were based on faulty measures.   Was she correct?

Question:   In reporting results, should I use grade norms or age norms?  (10/24/2015)

Question:  Is a parent written request for evaluation considered informed consent and thus mandates a review of existing data?  (10/7/2015)Question:  A child is living with a grandparent who has referred the child for evaluation.  The district knows that the biological mother is living “somewhere” but the grandmother refuses to provide contact information, although she is regularly in contact with her.  Based on that refusal, may the district decline the referral and refuse to test?  10-13-2015

Questions re 504: There has been some disagreement in our school regarding the following:   (a) If a student doesn’t qualify for 504, does that mean s/he automatically doesn’t qualify for 504?;  must the committee document adverse affect in order to entitle the student; and (3) what constitutes a disability under 504.  Also, who can evaluate a student for 504 eligibiity, who decides whether the student qualifies for 504 services, and what happens when the parent and school disagree?

Short answers to your questions.   Knowing the correct answers and making sure others know the correct answers, however, are two very different balls of wax.

1. If a student does not qualify under the IDEA because he or she does not need special education, he or she may still qualify under 504 if he or she needs related services or related services in order to receive FAPE.
2. The standard for eligibility under the IDEA in determining eligibility is that the disability must adversely affect educational performance (which some have incorrectly construed to mean only academic performance.)   However, the standard under 504 has always been that there be a substantial limitation in a basic life function resulting from the disability.   After Congress passed the ADAAA of 2008, the law explicitly said  that a “substantial limitation” did not mean “a significant restriction” as it had been previously  been defined by the EEOC.
3. A disability under the IDEA is one that meets the criteria in one of more of the IDEA’s 13 (give or take, given the state in which you live) categories.   Virtually any diagnosed condition resulting in a physical or mental impairment can be a qualifying disability under 504 if it results in a substantial limitation.   A DSM 5 or  ICD 10 diagnosis would qualify for consideration, but so could (for example)  a diagnosis of dysgraphia, dyslexia, or dyscalculia.
4. Any disability involving a physical or mental impairment diagnosed by any qualified professional, including a school psychologist, would entitle a child to consideration for 504 services.   The only time a school would need a medical diagnosis would be if only a qualified medical practitioner could make that diagnosis.  For example, a 504 Committee hopefully  wouldn’t qualify a child under 504 because a school psychologist had diagnosed the child with cancer.  On the other hand, an appropriately trained school psychologist could make a defensible diagnosis of ADHD which, without medical confirmation, could entitle a child to consideration under 504.   (But if the 504 Committee insisted on a medical evaluation, the school would be obliged to pay for it.)  In the most recent iteration of the NASP Best Practices series, Ron Dumont, John Willis, and Guy McBride advocated for school psychologists to make a diagnosis (NOT a classification recommendation) for just that reason.  The problem when a SP evaluates a child and he or she doesn’t qualify under the IDEA isn’t that there are no other substantial limitations to consider but  that there is usually no other label available for the team to apply — when all the child would really need, for example, would be a DSM 5 diagnosis of a specifc learning disorder or a dyslexic label.  No tickee, no shirtee.  Bizarre that a child’s future should come down to that, but there it is.
5. A diagnosis is not determinative of eligibility for services but could still qualify a child for civil rights protections.  Only a 504 Committee composed of people knowledgeable about the child can make that determination.   Anyone on the committee may become knowledgeable by reading the reports and reviewing available background information.
6. The school must give parents of children being considered under 504 their written rights.   These ordinarily are not as extensive as under the IDEA, but they are still substantive, giving parents the right, if they are in disagreement with the school,  to have an administrative hearing followed, if they’re still unhappy, with an appeal to the federal courts.   However, in the scenario you describe, where the schools are applying the wrong standard, the parents could simply file a complaint with your regional Office for Civil Rights, alleging procedural non compliance and asking for corrective action.

We have a number of easily accessible references on 504 on our 504 Page.    (Click on Link.)

Some supporting references for the answers above follow.

1. Perry Zirkel used to say that schools should not make a 504 Plan a consolation prize for children who did not qualify under the IDEA.  He NEVER said that failure to qualify for 504 automatically disqualified children from sped.   Passage of the 2008 ADAAA broadened his views on when services should be added.   Click on  his article The Top Section 504 Errors Redux Additionally, FAPE is defined differently under 504 than it is under the IDEA.  Under 504, the burden on schools is to “level the playing field.”  In regulatory language, FAPE is defined (this language carrying the force of law)

(b) Appropriate education. (1) For the purpose of this subpart, the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of 104.34, 104.35, and 104.36.  (Click on link to 504 regulations below.)

Additionally, OCR has always held that there are no financial limitations on a school’s obligations to provide the services needed to accomplish the preceding.   (See the OCR Letter to Zirkel. )

2. 504 eligibility is not limited to limitations in academic performance.   Congress said a person may be eligible for accommodations if he has a substantial limitation in any major life activity:

‘‘(2) MAJOR LIFE ACTIVITIES.— ‘‘(A) IN GENERAL.—For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. ‘‘(B) MAJOR BODILY FUNCTIONS.—For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.    Reference:  Section 3 of the   ADAAA of 2008

3. The listing of disabilities in the ADAAA 2008 (from which 504 draws its definitions) is not exhaustive.  Hence whether a child is diagnosed with ADHD, CAPD, or palmar hyperhidrosis, he is entitled to consideration.   Note that it is now possible for a child to have had a history of a disability and still qualify for accommodations, e.g., a child with cancer is in remission but still needs time off from school without penalty for periodic medical checkups or

allowing a student who has a record of a disability, based on a heart condition that has been corrected by surgery, the opportunity to complete, without penalty, assignments missed during the student’s surgery and lengthy convalescence, even though the student was absent from school more than the school’s attendance policy permits   OCR Questions and Answers on the ADA

4. OCR FAQ

23. Are there any impairments which automatically mean that a student has a disability under Section 504?

No. An impairment in and of itself is not a disability. The impairment must substantially limit one or more major life activities in order to be considered a disability under Section 504.

24. Can a medical diagnosis suffice as an evaluation for the purpose of providing FAPE?

No. A physician’s medical diagnosis may be considered among other sources in evaluating a student with an impairment or believed to have an impairment which substantially limits a major life activity. Other sources to be considered, along with the medical diagnosis, include aptitude and achievement tests, teacher recommendations, physical condition, social and cultural background, and adaptive behavior.  As noted in FAQ 22, the Section 504 regulations require school districts to draw upon a variety of sources in interpreting evaluation data and making placement decisions.

25. Does a medical diagnosis of an illness automatically mean a student can receive services under Section 504?

No. A medical diagnosis of an illness does not automatically mean a student can receive servicesunder Section 504. The illness must cause a substantial limitation on the student’s ability to learn or another major life activity. For example, a student who has a physical or mental impairment would not be considered a student in need of services under Section 504 if the impairment does not in any way limit the student’s ability to learn or other major life activity, or only results in some minor limitation in that regard.

5. In interpreting evaluation data and in making placement decisions, a recipient shall (1) draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior, (2) establish procedures to ensure that information obtained from all such sources is documented and carefully considered, (3) ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and (4) ensure that the placement decision is made in conformity with 104.34   504 Regulations
6. By reference, the Procedural Rights under Title VI of the Civil Rights Act apply.  Those rights are described in an OCR FAQ (link above) as

What is a recipient school district’s responsibility under Section 504 to provide information to parents and students about its evaluation and placement process?

Section 504 requires districts to provide notice to parents explaining any evaluation and placement decisions affecting their children and explaining the parents’ right to review educational records and appeal any decision regarding evaluation and placement through an impartial hearing

Question:  When a  parent refers a child, must the school provide an evaluation?  1/24/2014

Answer:  No, not if after completing a comprehensive review of existing information, it finds no reason to share the parent’s suspicion.  However, it must provide the parents with a prior written notice of their refusal, along with a copy of their rights.     What Section 300.503 requires is that if the school system refuses such a request, it must notify the parents in writing and that they have the right to request a due process hearing to overturn that decision.

In North Carolina, as an example,  the state referral form has always included the following options for an IEP team to select from upon receipt of a referral:

IEP TEAM DETERMINATION

No evaluation will be conducted based on the review of existing information. The special education process ceases.

Explain decision not to evaluate:

Team completes Prior Written Notice & provides copy to parent along with the Handbook on Parents’ Rights.

Determine eligibility based solely on existing evaluation data made available to the IEP Team through the referral process. No additional data are being requested. (For preschool students consider current IFSP.) List the source(s) of existing evaluation data:

(To use this option, existing data must consist of all components required for eligibility by NC Policies Governing Programs and Services for Children with Disabilities.  The IEP Team completes eligibility worksheet(s) and determination and proceeds as appropriate.)  

Provide parent with Handbook on Parents’ Rights.

Conduct Evaluation:  What information is needed to determine if the student is or is not eligible for special education and related services?

Specify what areas of information are needed:   Obtain parent permission for evaluation and provide parent with Handbook on Parents’ Rights. 

Eligibility determination, IEP (if eligible), and placement determination must be completed within 90 days of the date that the school received the written referral.  Complete compliance section below.

http://ec.ncpublicschools.gov/policies/forms/statewide-forms/english-forms/preschool-ref.doc

The same question could (and has) been asked with respect to parent rights under Section 504, enforced by the Office for Civil Rights.  Their response came in the form of two letters issued in the early 1990’s, the second (linked below) being the most comprehensive.    Clarification Memo (OCR) on ADHD

Question:  Is response to medication a good diagnostic indicator for ADHD? 7/4/2014

Answer:   No.

A number of universities who when considering eligibility under 504 require more than a positive response, e.g., these guidelines from the University of Pennsylvania.

And as LDonline has reported,

“Children without ADHD respond to low doses of stimulant medication in the same way as children with ADHD (Peloquin & Klorman, 1986). This suggests that stimulants do not have a paradoxical effect on children with ADHD and thus this reasoning cannot be used to verify a diagnosis.”  Peloquin and Klorman 1986 Link

Since there is no specific test for ADHD, and as there are many conditions that mimic ADHD but of an entirely different etiology, a comprehensive multidisciplinary evaluation including both a psychological and medical workup would appear to be professionally prudent before making a diagnosis (which is consistent with the long standing recommendation of the pharmaceutical company producing Ritalin).

50 Conditions that Mimic ADHD (Link)

While I always recommended a medical evaluation, even for children just being considered under Section 504,  I never recommended meds per se.  That may seem inconsistent with the previous statement, but prescribing medication is not within the scope and limitations of my professional credentials.  All medications have potentially adverse side effects, and it seemed to me additionally that it was up to the parents and their doctor to weigh the pros and cons of a medical intervention, not for me to decide.  In most kids, it’s just stomachaches and difficulty sleeping, at least over the short term, but for a very small minority  (those with a history of heart conditions, for example) stimulant meds could be dangerous.   Other potentially lethal situations are reported in the handout from the pharmaceutical company producing Ritalin (sold generically as methyphenidate.) Novartis information on Ritalin

Medication for children with ADHD is not always even appropriate, due to the potential for serious side effects, especially when children suffer from other conditions.   See:   Contraindications to the Prescription of Stimulant Meds (link)

Congress in the 2004 IDEA pretty much put all that into law, saying that sped services under the IDEA could not be conditioned upon a parent putting their child on a Class 2 (controlled) drug.   The prohibition was incorporated into the 2006 Final Regulations at 34 CFR 300.174

• 300.174 Prohibition on mandatory medication. (a) General. The SEA must prohibit State and LEA personnel from requiring parents to obtain a prescription for substances identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)) for a child as a condition of attending school, receiving an evaluation under §§300.300 through 300.311, or receiving services under this part. (b) Rule of construction. Nothing in paragraph (a) of this section shall be construed to create a Federal prohibition against teachers and other school personnel consulting or sharing classroom-based observations with parents or guardians regarding a student’s academic and functional performance, or behavior in the classroom or school, or regarding the need for evaluation for special education or related services under §300.111 (related to child find).

For links to more general information on ADHD, see our Sped Resources Link on ADHD:  Sped Resources: ADHD

Question:  Is a private school responsible for conducting its own evaluations of children who might be suspected of having a disability?

Answer:  Charter schools have the same responsibilities as public schools, so if they suspected a child had a disability, they would be responsible for providing the evaluation.  Private schools, which are not funded by the state or federal government for special educational services, do not.

Children who were parentally placed in private schools by their parents when FAPE is not an issue stillhave federal rights under Child Find.  For authoritative information on children’s rights when they have been parentally placed in a private school, see  this 2011 Q and A:

2011 OSEP Q abd A re Private School Placements

For the regulatory bases for OSEP’s opinions, see Sections 300.111 and 300.131 of the 2006 FR.

The bottom line is that parents of children in private schools may request an evaluation from their home school to determine if the child is eligible for services from that school or (if in another district) from THAT school system to see if the child is eligible for services they are obligated to provide for parentally placed children in private schools when FAPE is not an issue.

Parents may, without telling either school system, make that request of both school systems, even though OSERS discouraged that practice in the 2006 FR.

A school may refuse to conduct that evaluation only if it does not share in the parent’s suspicion that the child has a disability, but it MUST give the parents their due process rights — and while parentally placed private school children do not have a right to FAPE, they do have the right to ask for a hearing if a school refuses to evaluate their child.

Discussion: We recognize that there could be times when parents request that their parentally-placed child be evaluated by different LEAs if the child is attending a private school that is not in the LEA in which they reside. For example, because most States generally allocate the responsibility for making FAPE available to the LEA in which the child’s parents reside, and that could be a different LEA from the LEA in which the child’s private school is located, parents could ask two different LEAs to evaluate their child for different purposes at the same time. Although there is nothing in this part that would prohibit parents from requesting that their child be evaluated by the LEA responsible for FAPE for purposes of having a program of FAPE made available to the child at the same time that the parents have requested that the LEA where the private school is located evaluate their child for purposes of considering the child for equitable services, we do not encourage this practice.  p.  46593

2006 Final Federal Regulations

Question:  How do I  test a non verbal student with cerebral palsy (and no pointing ability) in order to determine whether or not he qualifies for a mental health program?  3/11/14

Answer:    The short answer is that you probably shouldn’t.  Issues of  the test’s validity for the purpose for which you’re using it aside (for the moment), school systems are not responsible for meeting the eligibility criteria for outside organizations.   From the description of the child’s weaknesses, it seems likely the child has already been evaluated and placed by the school system with an IEP.   If what has already been done to meet school eligibility requirements would be helpful in meeting outside organization’s requirements, then that documentation can and should be shared with written parental consent.  Existing school board or administrative policies might also be helpful in providing guidance in addressing this issue.

Procedurally, school psychologists should only evaluate students after the referral has been vetted by an IEP team, and a written informed consent has been received.  Additionally, full documentation of the child’s physical strengths and weaknesses (including a current vision and hearing screening) would normally be required.

Ethically, “Test users should select tests that meet the intended purpose and that are appropriate for the intended test takers.”  APA Code of Fair Testing Practices

The DSM 5 provides a diagnostic code of 319,  Unspecified intellectual disability (Intellectual developmental disorder) which is used in  exceptional circumstances for individuals over 5 years old whose intellectual disability cannot be assessed because of sensory or physical impairments.  The equivalent ICD 10 Code is F89.  If your school system’s policies do allow for school psychologists to test for non educational purposes,  and the DSM 5 319 Code seems appropriate, contact the mental health agency to see what, if any, additional documentation they might require in support of that diagnosis

Many if not most multi-handicapped children have already been found eligible for Medicaid, and parents may be assisted in finding a private service provider who would accept their insurance.

As an additional reference, the following archived OCR document has more relevance for chidlren who are LEP, African American, blind, deaf, visually impaired, or hearing impaired, but many of  the principles would still apply: http://www2.ed.gov/offices/OCR/archives/testing/index1.html

Question:  My state regulations say that in order for a child to qualify under the IDEA as Intellectually Disabled, he or she must have an adaptive behavior score two standard deviations below the mean.  Should we interpret that as requiring a standard score on the composite or total score two standard deviations below the mean in order to qualify the student?

Answer:   Although in the adult world in adult Atkins death penalty cases there continues to be some dispute over this, no other agency or entitling entity would impose such a rigorous standard.   Indeed, were that standard to be applied, due to regression effect you would  virtually wipe out mild intellectual disablity with a stroke of the pen (and the application of arbitrary and non supportable criteria.)

States may establish guidelines, and the first place to look in resolving this type of question would therefore be your state.   However, Eligibility Groups and IEP teams retain a degree of flexibility when considering eligibility.  Regardless.   The 2006 FR prohibit schools from making eligibility decisions based on a single assessment, and in the Preface to the 2006 FR OSERS wrote:

Consistent with § 300.304(b) and section 614(b)(2) of the Act, the evaluation of a child suspected of having a disability, including an SLD, must include a variety of assessment tools and strategies and cannot rely on any single procedure as the sole criterion for determining eligibility for special education and related services. This requirement applies to all children suspected of having a disability, including those suspected of having an SLD. p. 46646

And then:

As required in § 300.304(b), consistent with section 614(b)(2) of the Act, an evaluation must include a variety of assessment tools and strategies and cannot rely on any single procedure as the sole criterion for determining eligibility for special education and related services. p. 46648.
2006 FR

The most defensible non governmental source for a definition of Intellectual Disability would be the AAIDD.  And what the AAIDD says is:

Adaptive behavior represents the conceptual, social, and practical skills that people have learned to be able to function in their everyday lives. Significant limitations in adaptive behavior impact a person’s daily life and affect the ability to respond to a particular situation or to the environment. Limitations in adaptive behavior can be determined by using standardized tests. On these standardized measures, significant limitations in adaptive behavior are operationally defined as performance that is at least 2 standard deviations below the mean of either (a) one of the following three types of adaptive behavior: conceptual, social, or practical, or (b) an overall score on a standardized measure of conceptual, social, and practical skills.  AAIDD FAQs

So the short answer to the Question above would be to apply the state’s  two standard deviation criteria either to the overall score OR to one of the three subscale scores.   However, states do not have to adopt the AAIDD criteria.   For example, North Carolina’s operational defintion of a significant deficit in adaptive behavior (as of 2015) was:

Adaptive behavior deficits reported by the same source at or below: a. Two standard deviations below the mean in one domain, or b. One and one-half standard deviations below the mean in two or more domain  NC Policies

The bottom line, however, consistent with the federal regulations, eligibility teams need to consider the student’s eligibility within the context of a variety of assessments and not rely upon any single assessment to make its determination.

Question:   If one parent consents and the other parent refuses consent to an evaluation under the IDEA, and they  say they have joint custody, what must the school do?  11/26/2014

Answer:  If one parent has given consent, it is generally agreed that the school must evaluate the child.

In this scenario, the parents agree that they have joint custody.   In another scenario, where only one parent had custodial rights, of course the opinion of the parent with custody would prevail . . . but that parent would need to provide the school with a copy of the court decision supporting that claim.

This answer ONLY applies to a referral request.  In a situation where one parent wants services, but the other parent does not, it is the opinion of the parent requesting all sped services under the IDEA be terminated  that must be respected.

For a more detailed discussion of this issue with supporting documentation see our web page “When Parents Disagree.”  When Parents Disagree

Question:     A parent and her advocate recently told a principal when he was going over a student’s test results that the IDEA requires tests used for high stakes decision making to be peer reviewed.  Since he was unable to show her in the manual that the tests the school used were peer reviewed, she said that results were based on faulty measures.   Was she correct? 9/10/2014

Answer:  The short answer is “No.   She was not correct.   She was confusing the regulatory requirements for assessments with the statutory and regulatory requirements first published in  No Child Left Behind for instruction and interventions.”

Within the context of the 2006 Regulations for the IDEA 2004, the phrase “peer-reviewed research” appears only once in the regulations themselves within the context of defining the content of an IEP in Section 300.320 which must include among other things:

(4) A statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modificationsvor supports for school personnel thatvwill be provided to enable the child—
(i) To advance appropriately towardvattaining the annual goals;
(ii) To be involved in and makevprogress in the general education
curriculum in accordance withvparagraph (a)(1) of this section, and to
participate in extracurricular and other  nonacademic activities; and
(iii) To be educated and participate with other children with disabilities and
nondisabled children in the activitiesdescribed in this section

(6) In evaluating each child with a disability under §§ 300.304 through
300.306, the evaluation is sufficiently comprehensive to identify all of the
child’s special education and related services needs, whether or not
commonly linked to the disability category in which the child has been
classified.

The complete sections from which this excerpt and the one below were selected may be viewed by clicking on the

Final 2006 regulations for the IDEA 2004

The technical requirements for the tools school psychologists use  can be summarized as that they must be reliable and valid for the purpose for which they are used.    The key word being “valid.”  Everything else in the relevant regulations is embellishment.  And there is admittedly quite a bit of it.   I’ve provided an excerpt from 300.304 below.   Establishing validity is a more weighty challenge than the brief reference in the regulations would suggest.   For a more thorough discussion from both a technical and legal perspective, a reader might consider reviewing an archived OCR publication

The Use of Tests in High Stakes Testing

For the regulatory language from the 2006 FR Section 300.304 at: Section 300.304

Question:   In reporting results, should I use grade norms or age norms?  (10/24/2015)

The online scoring program automatically calculates the examinee’s chronological age and tenth-of-school-year grade placement (based on a standard school year). If the student is enrolled in a year-round school or a school with starting or ending dates that fall more than 2 weeks before or after the default range (i.e., August 16 through June 15), use the option for entering exact starting and ending dates of the school year. Due to the wide variation in starting and ending dates for schools and districts, use this option regularly to increase the precision of the grade norms accessed by the scoring program. After entering the starting and ending dates into the scoring program, it automatically calculates the exact grade placement, in tenths of the school year.

From Guy’s Perspective . . . 

Different scores answer different questions.   If your school system is conforming to federal law, it isn’t make a decision based upon a single assessment anyway . . . and if your state or school system was using an RTI methodology, the question wouldn’t be whether you should use grade norms or age norms, but what grade norms you should be using . . . the grade in which the child was enrolled or the grade in which he or she would have been enrolled.

The answer to your question  is “it depends.”  If you were using both the Woodcock intellectual and achievement batteries, you could compare age with age or grade with grade.   Kevin McGrew has argued when grade to grade norm comparisons were available, grade to grade would be be best.

Even if a school system is using the historical discrepancy methodology, however, federal statute and federal regulations prohibit it from relying on a single assessment (or single procedure) to determine eligiblity, so which score you use should not be definitive in determining eligibility within the context of a comprehensive evaluation anyway.  So why not report both?

In the 2006 FR, OSERS was not definitive in answering this question, either.   First they wrote,

The first element in identifying a child with SLD should be a child’s mastery of grade-level content appropriate for the child’s age or in relation to State-approved grade-level standards, not abilities. This emphasis is consistent with the focus in the ESEA on the attainment of State-approved grade-level standards for all children. State-approved standards are not expressed as ‘‘norms’’ but represent benchmarks for all children at each grade level. The performance of classmates and peers is not an appropriate standard if most children in a class or school are not meeting Stateapproved standards. Furthermore, using grade-based normative data to make this determination is generally not appropriate for children who have not been permitted to progress to the next academic grade or are otherwise older than their peers. Such a practice may give the illusion of average rates of learning when the child’s rate of learning has been below average, resulting in retention. A focus on expectations relative to abilities or classmates simply dilutes expectations for children with disabilities.   p 46642 2006 FR

But then ten pages later OSERS wrote this in defining the phrase “state approved grade level standards”:

The reference to ‘‘State-approved grade-level standards’’ is intended to emphasize the alignment of the Act and the ESEA, as well as to cover children who have been retained in a grade, since age level expectations may not be appropriate for these children.  p. 46652 2006 FR

2006 FR (myschoolpsychology.com)

So there is no federal prohibition against reporting both scores.  Just don’t mix oranges and bananas, comparing grade based achievement scores with age based intelligence scores if your school system is still relying upon a discrepancy methodology.

Question:  If a child is experiencing success with a combination of meds and special education, is it necessary to remove the meds and services to demonstrate they have a disability that requires special education?

Answer:  No.   There really are two parts to this question . . . documentation of eligibility, then documentation of need.   Medication is just one example of a mitigating measure.  Since passage of the 2008 ADAAA, schools MAY NOT consider mitigating measures in determining eligibility (which would require at the minimum protection against discrimination).
http://www.eeoc.gov/laws/statutes/adaaa.cfm

One of the purposes of the Act was to:

(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures

The IEP team or 504 Committee  may, however, consider the effect of mitigating measures in determining whether the child has a need for special education, related services, and/or accommodations.  The ADAAA of 2008 included a non exhaustive list of mitigating measures that would not need to be considered in determining eligibility (but could be considered in determining need for affirmative intervention).

The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as—

“(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

“(II) use of assistive technology;

“(III) reasonable accommodations or auxiliary aids or services; or

“(IV) learned behavioral or adaptive neurological modifications.

An IEP team does not have to take away a child’s artificial limbs in order to prove he or she still needs special education, related services, and/or classroom accommodations.  It determines need based on a preponderance of the data, including the child’s achievement level and rate of progress.  After considering that information,  the IEP Team must determine that the child needs resources beyond what can reasonably be provided in general education.   If the child did NOT need resources beyond what could be reasonably provided, but still needed accommodations (e.g., the right to go to the office to get his or her meds every day) in order to receive FAPE, then the team should reconvene as a 504 committee and draw up a 504 Plan describing those accommodations.

A shorter answer to the question, however, would be that IEP teams are not qualified medical service providers, and the decision to take a child off medications is one that must be made by the parents in consultation with their physician.  Although many parents voluntarily take “drug holidays” on weekends or over the summer, withdrawal from Ritalin (a common ADHD drug)  is not without risks.    Schools would be unwise to intervene in what is essentially a medical decision.   A partial list of side effects from abrupt withdrawal from Ritalin (methyphenidate) follows.   Substituting its judgment for the judgment of a child’s physician would not be defensible in any adversarial proceeding.

Fatigue is one of the possible effects of Ritalin withdrawal, according to the National Institute on Drug Abuse. When used for long periods, Ritalin typically increases attention, wakefulness and focus. A sudden or abrupt halt in use, however, can have the opposite effect. The therapeutic effect of the stimulant is no longer achieved causing moderate to severe fatigue.

Acording to the National Institute on Drug Abuse, depression is another effect of Ritalin withdrawal. Ritalin as a drug is prescribed to increase the patient’s level of dopamine, a brain chemical responsible for regulating attention, movement and pleasure. When this drug is abused and taken chronically, it can produce a rapid increase in dopamine levels that can lead to serious complications. Therefore, when drug use is stopped, depression can occur.

Disturbed sleep patterns are possible effects of Ritalin withdrawal, as stated by MedlinePlus. Regulating sleep is one of the actions of this drug. Ritalin is even indicated for patients who sleep excessively to control their sleep disturbance. With chronic Ritalin use, patients have a substantial decrease in sleep. Sudden stop or drug withdrawal can either exacerbate this decrease in sleep or increase it to abnormal level.

Per the National Institute on Drug Abuse, malnutrition can occur as an effect of Ritalin withdrawal. Ritalin as a stimulant can decrease appetite which potentially leads to under nourishment and malnutrition. At high doses with repeated use, as well as with abrupt withdrawal, this drug can cause severe nutritional imbalances leading to harmful complications.

Cardiovascular complications are a possible effect of Ritalin withdrawal, according to the MedlinePlus. Ritalin causes an increase in heart rate and blood pressure. Ritalin abuse as well as drug withdrawal causes cardiovascular complications which can lead to stroke and even death.
http://www.livestrong.com/article/254370-effects-of-ritalin-withdrawal/

Question:  Is a parent written request for evaluation considered informed consent and thus mandates a review of existing data?  (10/7/2015)

Answer:   No.   Informed written consent is only required if the IEP team and other qualified professionals as appropriate have determined that further evaluations (that is, additional testing) is needed to determine eligibility or present levels of academic  achievement or functional performance (PLAAFP).   After completing the review of existing data, whatever decision the team, it must provide the parents with a prior written notice describing the action they are (or are not) going to take, providing them with a copy of their due process parent handbook of rights.

 Section 300.301(b) provides that a parent may initiate a request for an initial evaluation to determine if the child is a child with a disability. If the public agency agrees to conduct the evaluation, § 300.304(a) requires the public agency to provide notice to the parents, in accordance with § 300.503, that describes any evaluation procedures that the agency proposes to conduct. The public agency must obtain informed consent for the evaluation, consistent with §§ 300.9 and 300.300, prior to conducting the evaluation. The 60-day [or applicable state timeframe  begins when the public agency receives the consent for evaluation.  P.46636, 2006 FR.  https://www.myschoolpsychology.com/wp-content/uploads/2014/02/final-2006-regulations-for-the-IDEA-2004.pdf

Again, if the team decides NOT to conduct the evaluation, it would have have to provide the parent with written notice and a copy of their rights.

Section 300.503(a), consistent with section 615(b)(3) of the Act, provides that a public agency may refuse to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child, if the public agency provides written notice. This includes situations in which a public agency wishes to deny a parent’s request for an initial evaluation. The written notice must meet the requirements in § 300.503(b). Thus, for situations in which a public agency wishes to deny a parent’s request for an initial evaluation, the written notice would provide, among other things, an explanation of why the public agency refuses to conduct an initial evaluation and the information that was used to make that decision. A parent may challenge the public agency’s refusal to conduct an initial evaluation by requesting a due process hearing.  P. 46641, 2006 FR

However, in order to make that determination, the 2006 FR does mandate that the IEP team conduct that review of existing data  in order to support their decision . . . again, no consent, informed or written, required.

• 300.305 Additional requirements for evaluations and reevaluations. (a) Review of existing evaluation data. As part of an initial evaluation (if appropriate) and as part of any reevaluation under this part, the IEP Team and other qualified professionals, as appropriate, must— (1) Review existing evaluation data on the child, including— (i) Evaluations and information provided by the parents of the child; (ii) Current classroom-based, local, or State assessments, and classroom-based observations; and (iii) Observations by teachers and related services providers; and (2) On the basis of that review, and input from the child’s parents, identify what additional data, if any, are needed to determine— (i)(A) Whether the child is a child with a disability, as defined in § 300.8, and the educational needs of the child.

Question:  A child is living with a grandparent who has referred the child for evaluation.  The district knows that the biological mother is living “somewhere” but the grandmother refuses to provide contact information, although she is regularly in contact with her.  Based on that refusal, may the district decline the referral and refuse to test?  10-13-2015

Answer:  The district may NOT decline the referral.
If the grandmother says that the child lives with her and that she is responsible for that child, she is considered the parent under the IDEA until or unless the mother asserts her rights.   That right is inherent in the federal definition of a “parent” in Section 300.30 of the 2006 FR.

Section a (4) defines a parent as:
An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare

Although a grandparent may sign for services under the IDEA, state laws would govern whether or not the student was entitled to attend school in a school district.  However, the responsibility for that determination would lie with your administration, not the IEP team.   State laws vary, can be complicated, but for the purposes of this discussion, it can be assumed, since the child has been admitted to the school system, that the administration has already concluded that the student is legally domiciled with the grandmother.

Upon receipt of the referral, your IEP team should have followed the same procedures it would have followed for a child living with his or her biological parent.  If additional testing is needed to determine eligibility or present levels of performance, then the grandmother should be given her rights and asked for informed written consent.

Should the biological parent appear and assert her rights, she would of course be granted precedence over the grandmother.  Should she regard the school’s decision to test and provide services (assuming the school did provide the student with an IEP), all she would need to do would be to withdraw consent for all sped services by asserting the rights granted by the 2008 Amendment to the IDEA.  Done and done,  but the child would have received some help in the interim.   There does not appear to be any downside to regarding the grandmother as the parent (especially since, under both the IDEA statute and the federal regulations, she really is.) GMM

Question:   A child is living with a foster parent who has referred the child for an evaluation.   We do not have documentation that a court has given her educational rights.  Do we need additional documentation (or appoint a surrogate parent) before we test.  10-13-2015

Answer:  No,, the IEP team is good to go with its review of existing documentation upon receipt of the referral, and if it determines additional testing is needed, assuming the foster parent is willing, his or her written consent’s will usually suffice.  The only exceptions would be if a state law or contract with the state prohibited it; or if there was an obvious conflict of interest, e.g., the foster parents were also social workers in the same agency giving them custody; or if the foster parent flat out refuses to take on that responsibility.

Before 2006, a foster parent could only serve if (1) there was a court ordered termination of parental rights (a TPR) and (2)  the foster parent had had a long standing relationship with the child and (3) agreed to serve as a surrogate.

After the 2006 FR were issued,  Section 300.30 defined a foster parent as parent unless . . .

unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent 

Someone  receving the referral would have to cross check with his/her state regulations to be sure it has adopted the language of the 2006 FR, but if it has, then the school must treat the referral in the same way as you would treat a referral from a biological parent. (The inquiry in this case originated from CA, and it would appear CA regulations do not impose an additional burden. )

The  revised FR regulation does NOT require that the foster parent have a long standing relationship with the child, either.  However, if the biological parent asserts his or her rights, absent a judicial order termining parental rights (a TPR) , the biological (or adoptive) parent would be presumed to be the parent even though the child was in the custody of DSS and under the supervision of the courts.

Foster parents (since 2006) don’t have to be appointed as surrogates, either.  A parent is a parent is a parent.

1.2 Placement Procedures

Question:  A child identified as having a disablility withdraws from school and then returns at a later date.  Should the school treat that as an initial evaluation or a reevaluation?

Question:  A child identified as having a disablility withdraws from school and then returns at a later date.  Should the school treat that as an initial evaluation or a reevaluation?

Answer:  A reevaluation unless the school formally exited the child and provided the parent with a PWN.  Eligibility for services does not “expire,” and unless the school system exited the child and provided the parents with a Prior Written Notice of that termination, if the data needed to determine eligibilty or PLAAAF is outdated, and data from the child’s interim placement (in another public school or private school) does not meet current needs,  the school would follow its normal procedures for institution a reevaluation.  This is consistent with an opinion rendered by OSERS in Appendix A of the 1997 Final Regulations, in which they said:

To distinguish an initial evaluation from a reevaluation, an initial evaluation of a child is the first completed assessment of a child to determine if he or she has a disability under IDEA, and the nature and extent of special education and related services required. Once a child has been fully evaluated the first time in a State, a decision has been rendered that a child is eligible under IDEA, and the required services have been determined, any subsequent evaluation of a child would constitute a reevaluation.  1999 FR (myschoolpsychology.com)

1.3 IEP

Question:  Over the past ten years, more and  more special education teachers have been writing grade level goals for their students.  Is this the result of Response to Intervention and is it consistent with the demands of the IDEA? 3/23/2014

Question:  Over the past ten years, more and  more special education teachers have been writing grade level goals for their students.  Is this the result of Response to Intervention and is it consistent with the demands of the IDEA? 3/23/2014

Question:  Do the IDEA transitioning requirements mean that schools must reevaluate children to see if they meet outside agencies’ eligibility criteria after graduation?  3/12/14

Question:  Must the goals in a child’s IEP be related to his or her disability?  3/13/14

Question:  An attorney told us that a parent signature on an IEP does not mean that the parent agreed to the IEP.  Is that true?

Question:  Board policy requires all students to take Spanish.  Although a majority of the IEP team believes the student would be best served through additional instruction in the basics, our principal insists the student take Spanish.   Can the board determine the content of the IEP, and can a principal overrule the majority on the IEP team?  (11/9/2015)

Question:  If a parent invites an attorney to an IEP team meeting, must the school also have an attorney present?  10-7-2015

Question:  Over the past ten years, more and  more special education teachers have been writing grade level goals for their students.  Is this the result of Response to Intervention and is it consistent with the demands of the IDEA? 3/23/2014

Answer:   The shift is the result of changes in federal law in 2004 and federal regulations in 2006.  It is consistent with the shift in emphasis from a process driven system of accountability to a results driven accountability  system for students served under IDEA funded special educational programs.

Update (2015):  The response to this question is re-edited and modified to reflect a November, 2015 letter (also reported under November, 2015 in Guy’s Log 2015).

November 17, 2015.  OSEP issues guidance saying most IEPs should be written to reflect goals at grade level with limited exceptions.

Holding all Children to High Expectations

So when teachers write goals and provide instruction designed to enable that child to meet the same educational standards that apply to all children in that grade, they are not just trying to comply with a principal’s whim or state standards.

Question:  Do the IDEA transitioning requirements mean that schools must reevaluate children to see if they meet outside agencies’ eligibility criteria after graduation?  3/12/14

Answer.  No.  The IDEA does not require schools to test graduating students for transitional purposes.   Parents may ask for an early reevaluation to determine the appropriateness of his or her IEP goals for the Senior year,  but just as Part C providers are not required to provide updated testing for the transition to Part B, neither are schools required to provide testing for students transitioning out of the school system.   Another example, quite legitimate,  would be if in developing a transition plan an IEP team determined that additional assessments were needed to determine if THE SCHOOL needed to do additional training before the child left school.

Regardless, the decision to reevaluate should always be made by an IEP team, not by the school psychologist.    The views in the paragraph above are not just my own personal view; it is what OSERS wrote  in the Preface to the IDEA.

Discussion: Evaluations under section 614 of the Act are for the purpose of determining whether a child has a disability and because of that disability needs special education and related services, and for determining the child’s special education and related services needs. It would be inappropriate under the Act to require evaluations for other purposes or to require an evaluation for telephone assistive services for all children with speech and hearing disabilities. However, if it was determined that learning to use telephone assisted services, was an important skill for a particular child (e.g., as part of a transition plan), it would be appropriate to conduct an evaluation of that particular child to determine if the child needed specialized instruction in order to use such services. Changes: None.  p.46548, 2006 Final IDEA Regulations

AND

Discussion: We do not believe that the regulations should require public agencies to conduct evaluations for children to meet the entrance or eligibility requirements of another institution or agency because to do so would impose a significant cost on public agencies that is not required by the Act. While the requirements for secondary transition are intended to help parents and schools assist children with disabilities transition beyond high school, section 614(c)(5) in the Act does not require a public agency to assess a child with a disability to determine the child’s eligibility to be considered a child with a disability in another agency, such as a vocational rehabilitation program, or a college or other postsecondary setting. The Act also does not require LEAs to provide the postsecondary services that may be included in the summary of the child’s academic achievement and functional performance. We believe it would impose costs on public agencies not contemplated by the Act to include such requirements in the regulations. It would be inconsistent with the Act to require public agencies to conduct evaluations for children who are exiting the school system because they exceed the age for eligibility under State law. Section 300.305(e)(2), consistent with section 614(c)(5)(B)(i) of the Act, is clear that an evaluation in accordance with §§ 300.304 through 300.311 is not required before the termination of a child’s eligibility under the Act due to graduation from secondary school with a regular diploma or due to exceeding the age eligibility for FAPE under State law.  p. 46644-45 of the Final Regulations (2006)

Question:  Must the goals in a child’s IEP be related to his or her disability?  3/13/14

Answer:  Actually the law is a little ambiguous (no surprise there), but OSERS and OSEP have always taken the position that once identified, it is the child’s needs, not the label, that drive the IEP.

The federal regulations define a disabled child in Section 300.8 as a child who (1) is classified as having one of the enumerated disabilities who (2) “by reason thereof, needs special education and related services.”   Also, later in the regulations, they describe as one of the IEP functions that it

(A) Meet the child’s needs that result from the  disability to enable the child to be involved in and make progress in the general education curriculum

However, the federal regulations do not contemplate  that a need be commonly related to the disability.  34 CFR 300.304 which defines an evaluation states

(6) In evaluating each child with a  disability under §§ 300.304 through 300.306, the evaluation is sufficiently  omprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified.

(7) Assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the child are provided.

Additionally, a child may have more than one disability, even if he or she is classified under only one label, so it would be absurd to think that just because Johnny was classified as SLD based on his academic needs instead of OHI because of his ADHD that the team could ignore the needs related to his attentional problems.  That is not just my opinion.  In the Preface to the Final Regulations in 2006, OSERS wrote

Children with one of the disabilities in § 300.8 should be identified as a child with a disability using the category that is  most appropriate for the child. Some children may be identified under other disability categories, such as OHI, TBI, ED, or speech impairment, and may also have low achievement and even meet SLD criteria. Services must meet the child’s needs and cannot be determined by the child’s eligibility category.  P46655, 2006 Regs

So even though the label is almost never determinative, “almost” isn’t always, which is why this question is more difficult to answer definitively than one might think.

The Fourth Circuit, in writing its decision regarding Springer in Springer v. Fairfax, wrote in part,

There is one final flaw in the Springers’ case for tuition reimbursement. Even if they had been able to demonstrate that Edward exhibited one or more of the five qualifying characteristics for a long period of time and to a marked degree, the Springers still have failed to establish the critical causal connection between this condition and the educational difficulties Edward experienced, the final step in proving a serious emotional disturbance. Id. at § 300.7(b)(9)(i).
http://www.ca4.uscourts.gov/Opinions/Published/971482.P.pdf

In normal practice, of course,  this is an issue that never comes up.  In part, perhaps, because there is actually no requirement in the IDEA that any particular child be labeled at all (boggles the mind, but there it is.)  A disabled child’s right is a right to FAPE, not to a label.  That’s how AEA 11 got away with implementing a non categorical problem solving model for more than a decade before the IDEA 2004.

In other words, while the Act requires that the Department collect aggregate data on children’s disabilities, it does not require that particular children be labeled with particular disabilities for purposes of service delivery, since a child’s entitlement under the Act is to FAPE and not to a particular disability label.  P. 46737, Final Regs

So if the evaluation data documents a need for Johnny to take horseback riding lessons in order to boost his self esteem, and that that is necessary for him to receive FAPE, then it wouldn’t matter that most children with his classification do  not need to take horseback riding lessons.

The final word always belongs to the IEP team, which must include the parent.  It does not matter what any administrator or school professional may think individually.   Johnny is labeled as SLI.  The team decides he needs horseback riding or resource room in reading in order to receive FAPE.  If an administrator thinks that is not appropriate because the need is not the result of the child’s disability (or any other reason)  he or she does NOT have the option of unilaterally over riding the IEP team.   However, a school administrator  CAN reconvene the IEP team and, as LEA representative, change the decision.   At which point the parent would have the right to invoke his or her right to a due process hearing.

The “this need is not related to the disability” argument in my opinion is always a weak one if, as a consequence, a child with clearly defined needs is going to be denied services.   Again, our old aphorism, “If a district thinks it has found a loophole, more often than not it turns out to be a hangman’s noose,” applies.  Especially given OSEP’s long standing informal guidance on the matter:

OSERS/OSEP policy has always been that it’s the child’s needs that drive the IEP.

The Department’s longstanding policy is that special education and related services are based on the identified needs of the child and not on the disability category in which the child is classified. Assistance to States for the Education of Children with Disabilities and Preschool Grants for Children with Disabilities, Final Rule, Analysis of Comments and Changes, 71 Fed. Reg. 46540, 46549 (Aug. 14, 2006). In developing the child’s IEP, the factors that the child’s IEP Team must consider include the strengths of the child, the concerns of the parent for enhancing the education of their child, the results of the child’s initial or most recent evaluation, and the academic, developmental, and functional needs of the child. 34 CFR §300.324(a)(1)()-(iv). The IEP Team, which is responsible for determining what the child’s lEP must contain, consists of the child’s parents and public agency personnel, including an individual who can interpret the instructional implications of evaluation results. 34 CFR §300.321(a) and (a)(5). Each child’s IEP must contain a statement of the special education, related services, and supplementary aids and services to be provided to the child or on behalf of the child, and a statement of the program modifications and supports for school personnel to enable the child to advance appropriately toward attaining the annual goals, to be involved and make progress in the general curriculum, to participate in extracurricular and other nonacademic activities, and to participate with other children with and without disabilities in those activities. 34 CFR §300.320(a)(4).

A copy of the 2006 regulations can be downloaded by clicking on the Spedlaw tab above  (scroll down and click on the link) if you want to check the regulatory references from the letter above.

Question:  An attorney told us that a parent signature on an IEP does not mean that the parent agreed to the IEP.  Is that true?

Answer:  The short answer is “Yes.”

While parent signatures denote participation, not agreement, nevertheless unnecessary conflicts  arise when a parent, for whatever, reason, refuses to sign an IEP.

The only time a parent MUST sign is when (1) it is an initial placement and (2) the parent wants the child to receive some services.    However, that would not be the IEP, it would be the  Consent to Provide Initial Services, an entirely separate form, e.g., in NChttp://ec.ncpublicschools.gov/policies/forms/statewide-forms/english-forms/consent-services.doc

A parent signature on the IEP  is  not required for the school to continue services once the initial consent form above has been signed.   The reason that the line for the parent to sign is on the form is to document that the parent participated.  IEP model forms that this reviewer has seen have in fact entitled the signature section “Participants Involved.”  But even if a local or state form did include the word “agree,”  either of the easy fixes below should work.

1.  Tell the parent, “You may write ‘disagree’ after your name if you wish.”

1.   If the parents still refuse, the IEP team can still document parent participation  by writing in the Parent signature space, “Mrs. Smith was present and participated but did not sign due to disagreement .”  Preferably, the nature of the disagreement should also be documented to show that the parents concerns were considered.  LEA Rep initials.  A copy of the IEP must be given to the parent.

Due process lawsuits ending up in state or federal courts are relatively rare.    Sometimes all parents want is a way to express their dissatisfaction.   Antagonizing a parent over a signature that is relatively meaningless would be senseless.

Question:  Board policy requires all students to take Spanish.  Although a majority of the IEP team believes the student would be best served through additional instruction in the basics, our principal insists the student take Spanish.   Can the board determine the content of the IEP, and can a principal overrule the majority on the IEP team?  (11/9/2015)

Answer:  IEP determines placement.   IEP decisions are not made by majority rule.   IEP teams are supposed to work toward consensus.   When consensus cannot be reached, then the representative from the public agency (what we used to call the LEP rep)  has the final authority in any dispute.   The board does not have the authority to unilaterally rewrite an IEP, nor do board policies trump federal statutory rights.   Nor does the principal or EC director have the authority to make unilateral decisions.  However, if the principal or Exceptional Children Director was the LEA rep or reconvenes the IEP team as LEA representative, basically s/he can do whatever he or she wants — after making a show, at least, of seeking consensus.  If the parent disagreed with the decision, the parent of course would have the right to invoke any or all administrative rights available to her, including the right to seek a facilitated IEP, mediation, or an impartial due process hearing.

Of course, rights aren’t rights if parents do not invoke or defend them.

In this instance, assuming we have parents who would eat a principal for breakfast and not burp afterwards, even if the principal violated the parents’ rights by unilaterally amending the IEP,  one would have to ask if this was the grounds one wanted to make into a battlefield.  The school is required to provide FAPE.   If  a decision was made to amend the IEP after the fact, if a parent  files a complaint with the  state education agency alleging a violation of her procedural rights, s/he would almost certainly win a symbolic victory by forcing the principal to reconvene the team with him or the EC Director as LEA rep.  However, the outcome might be the same. And if the parent wanted to appeal that decision based on it having been made prior to the meeting, s/he would  still probably have the burden of proof to show making the child take Spanish would result in a denial of FAPE.  I’d recommend before even thinking about that either seeking DPI involvement in writing a facilitated IEP or by requesting mediation with an advocate providing some representation.  One has to be careful, parenthetically, in signing a resolution agreement, because board attorneys have a way sometimes of getting parents to give up substantive rights in those agreements.

Regardless, priority in scheduling should be be provided for the specially designed instruction in academics.   If a student performs poorly on end of grade reading or math tests,  those are the areas that will bring down the school’s overall performance rating . . . not to mention leaving the student  unprepared for life.  United Federation of Teachers: How are IEPs changed?

(A principal may appoint someone to  act with his authority, of course; but he or she can also lead the IEP team him/herself.  The superintendent, however, is the ultimate LEA rep, and he or she can appoint the EC Director to serve as LEA rep in lieu of the principal or his/her representative.  Which happens sometimes when a principal is hell bent on getting the district into a ten year lawsuit, and the super wants to compromise.

Question:  If a parent invites an attorney to an IEP team meeting, must the school also have an attorney present?  10-7-2015

 Key Words:  Attorneys at IEP Team Meetings.

Answer:  The answer to your question is “No.”  If a parent brings a lawyer to an IEP team meeting, the district is entitled to have its own lawyer present.   It would not be inappropriate if a parent surprised an IEP team with their attorney for the team chair to adjourn and reconvene at a mutually convenient time when the board attorney could also be present.   Normally it would be in the parent’s best interest to provide prior notice, but it is not required, and it would not be required for the chair to reconvene the team when a board attorney could be present.   However, attorneys cost money, and an administrator might decide to meet without the attorney OR that the administrator’s supervisor might not approve the request.

The 2006 FR did not explicitly address  the presence of parent attorneys at IEP (CSE) meetings.

OSERS did envision parents inviting attorneys to Resolution Meetings before going to due process.  And with respect to THAT issue, they wrote:

We do not believe it is necessary to regulate on whether a parent must provide advance notice to the LEA that the parent intends to bring an attorney to the resolution meeting because we expect that it would not be in the interest of the parent to withhold such information prior to a resolution meeting so as to appear at the resolution meeting with an attorney without advance notice to the public agency. In such cases, the public agency could refuse to hold the resolution meeting until it could arrange the attendance of its attorney (within the 15-day period). The parent would incur additional expenses from having to bring their attorney to two resolution meetings.  p. 46701, 2006 FR.https://www.myschoolpsychology.com/wp-content/uploads/2014/02/final-2006-regulations-for-the-IDEA-2004.pdf

In general, OSERS/OSEP would discourage either party from bringing an attorney to an IEP team meeting and have done so as far back as 1997, in Appendix A to the 1997 FR.

29. Can parents or public agencies bring their attorneys to IEP  meetings, and, if so under what circumstances? Are attorney’s fees available for parents’ attorneys if the parents are prevailing parties in actions or proceedings brought under Part B?   Section 300.344(a)(6) authorizes the addition to the IEP team of other individuals at the discretion of the parent or the public agency only if those other individuals have knowledge or special expertise regarding the child. The determination of whether an attorney possesses knowledge or special expertise regarding the child would have to be made on a case-by-case basis by the parent or public agency inviting the attorney to be a member of the team.   The presence of the agency’s attorney could contribute to a potentially adversarial atmosphere at the meeting. The same is true with regard to the presence of an attorney accompanying the parents at the IEP meeting. Even if the attorney possessed knowledge or special expertise regarding the child (Sec. 300.344(a)(6)), an attorney’s presence would have the potential for creating an adversarial atmosphere that would not necessarily be in the best interests of the child.   Therefore, the attendance of attorneys at IEP meetings should be strongly discouraged. Further, as specified in Section 615(i)(3)(D)(ii) of the Act and Sec. 300.513(c)(2)(ii), Attorneys’ fees may not be awarded relating to any meeting of the IEP team unless the meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the State, for a mediation conducted prior to the request for a due process hearing.  Page 12478 https://www.myschoolpsychology.com/wp-content/uploads/2014/02/Final-Regulations-1999-paginated.doc

That view was reiterated in an OSEP letter to the NY Senator, Hillary Clinton, in 2001.   Letter to Clinton

“Discouraged” of course does not mean “prohibited” with respect to either party bringing an attorney to an IEP team meeting.

1.4 Placement Setting/LRE

Question:  A child identified as having a disablility withdraws from school and then returns at a later date.  Should the school treat that as an initial evaluation or a reevaluation?

Question: Can a student identified as speech language impaired and receiving services from a speech pathologist ALSO receive services from a special education teacher for reading or writing?

Answer:  Yes.   The services a child receives are predicated upon his or her needs, not the label or category under which he or she has been identified.

As OSEP wrote in a 2008 Letter,

The Department’s longstanding policy is that special education and related services are based on the identified needs of the child and not on the disability category in which the child is classified. Assistance to States for the Education of Children with Disabilities and Preschool Grants for Children with Disabilities, Final Rule, Analysis of Comments and Changes, 71 Fed. Reg. 46540, 46549 (Aug. 14, 2006). In developing the child’s IEP, the factors that the child’s IEP Team must consider include the strengths of the child, the concerns of the parent for enhancing the education of their child, the results of the child’s initial or most recent evaluation, and the academic, developmental, and functional needs of the child. 34 CFR §300.324(a)(1)()-(iv). The IEP Team, which is responsible for determining what the child’s lEP must contain, consists of the child’s parents and public agency personnel, including an individual who can interpret the instructional implications of evaluation results. 34 CFR §300.321(a) and (a)(5). Each child’s IEP must contain a statement of the special education, related services, and supplementary aids and services to be provided to the child or on behalf of the child, and a statement of the program modifications and supports for school personnel to enable the child to advance appropriately toward attaining the annual goals, to be involved and make progress in the general curriculum, to participate in extracurricular and other nonacademic activities, and to participate with other children with and without disabilities in those activities.

The context was different, but the principles are generally applicable.

Letter to Redacted, 2008

1.5 Related Services

Question:  How do you determine if a less restrictive environment is appropriate for a child?

Question:  How do you determine if a less restrictive environment is appropriate for a child?

Answer:  The answer here may vary slightly depending upon in which circuit a school system is located.

In the Ninth Circuit in Holland v. Sacramento,  the court applied the following test:

Other circuits, including the Fourth, have posted criteria that do NOT include cost as a factor.   For example, the Fourth in Hartmann v. Loudoun in 1997, issued the following “test”:

 (1) Mainstreaming is not required when a student with a disability will not receive an educational benefit from it. (2) Any marginal benefit from mainstreaming would be outweighed by benefits that could only be obtained in a separate educational setting; (3) A determination of whether the student is a disruptive force in the general education classroom is a legitimate issue; and (4) Any IDEA preference for mainstreaming is only that, and the receipt of social benefits is a subordinate goal to receiving educational benefits.Hartmann v. Loudoun County, 1997, Fourth Circuit

These “tests” provide some degree of guidance, but while placement in the LRE is generally regarded as more of a right than a preference, it is not an absolute  right.  Also, in reviewing court cases over the years, it would appear LRE is likely to prevail when the students are young than when they are older (see the Sacramento v. Rachel H. case above for example of that.)

1.6 Reevaluation

Question: The IEP team is convened for a three year reevaluation meeting.   No new testing is recommended.   However, the special education teacher reviews checklists that were completed on the student’s progress before the meeting.   Should she have gotten prior written consent from the parents?  2/12/2014

Question:  How should you use a three year reevaluation to measure student progress?  3/23/14

Question:  Do the federal regulations say that it would be inappropriate to discharge a child with a disability just because s/he no longer meets the state’s eligibility criteria if s/he still needs special educational services?

Question: The IEP team is convened for a three year reevaluation meeting.   No new testing is recommended.   However, the special education teacher reviews checklists that were completed on the student’s progress before the meeting.   Should she have gotten prior written consent from the parents?  2/12/2014

Answer:  Only an IEP team, with parental participation, not a teacher acting on her own, would have had the authority to determine whether or not new data was needed in order to determine eligibility and/or present levels of academic achievement and functional performance.   If the team decided that the checklists were needed, then written consent would have been required before distributing them.

However, the reason that the checklists were distributed in the first place is important.  If the teacher had distributed the checklists for either  of the following reasons, IEP preapproval would not have been needed, and written parental consent would not have been required.

1. If the teacher had written  informal checklists into her IEP as a progress monitoring tool. OR
2. she could label the checklist as an  “Academic Screening for Instructional Purposes” at the

300.302 Screening for instructional purposes is not evaluation.

The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be  considered to be an evaluation for eligibility for special education and related services.  (Authority: 20 U.S.C. 1414(a)(1)(E))

Question:  How should you use a three year reevaluation to measure student progress?  3/23/14

Answer:   You probably should not be using the three year reevaluation as your primary tool for measuring student progress.

The purpose of a three year (or early) reevaluation is either to determine the child’s continuing eligibility or his or her present levels of academic achievement and functional performance.  These terms are briefly discussed in the 2006 Federal Regulations but for a more indepth discussion visit this link to the Center for Parent Information and Resources :  CPIR: PLAAFP

Of course parents and teachers may look to those results as an indication of how students are progressing, but it’s not the primary purpose, and in fulfilling that purpose, sometimes comparisons pre and post are not possible because ethically we’re always required to use the most up to date tests in assessing students for eligibility and PLAAFP.  So if you’re in an old timey school system that is still using an antiquated  IQ discrepancy methodology for SLD identification, and Johnny was placed last year using the WJ III, and if for unknown reason the IEP team wants to have him re-tested next year and your school system has switched from the WJ III to the WJ IV, you won’t  be able to compare apples to oranges.

A second reason why using three year reevaluations is not a particularly fruitful approach to progress monitoring is because Section 300.320 of the 2006 Final Regs requires the regulat reporting of student progress on a regular basis throughout the school year, not once every three years.

A third reason why reevaluations are not appropriate for measuring student progress is that since 1999 reevaluations involving additional testing have become more an exception than the rule.

So the  real responsibility for measuring progress lies in assessing progress in meeting measurable IEP goals.  There can be no one solution fits all to that question, of course, because while you would probably be measuring academic progress in some way for 97 percent of your sped students, if Johnny is quadriplegic with severe cognitive deficits, the only measurable goal in his IEP might be whether the teacher or physical therapist taught t him to roll over by himself or not.  Regardless, if a teacher is having difficulty assessing student progress in meeting measureable goals, then appropriate course of action would be to provide that teacher with in-service training.

When cases go to court, it’s the IEP and the child’s progress in meeting his or her goals/ objectives that will be most important.   If the goals aren’t measurable, a school system is going to lose.   If the goals were not appropriate for the child, even if they were measurable, the school system is also probably  going to lose.   (See Carter v.Florence Cty.)
Wrightslaw references on Carter v. Florence

So  what I think the real question should be is how do you write defensible and measurable IEP goals.   And if you phrase the question that way, you can find whole books on the subject, as well as a bunch of free material, e.g., Wrightslaw link on writing IEPs  on the Internet.

Although there has been a significantly increased emphasis at the federal level in moving from a process driven accountability system to a results driven accountability system, at the local level multiple measures will still need to be included based on the individual needs that resulted in a student being identified in the first place.  For example, in a system based on responsiveness to instruction (or intervention), if a child was placed because of difficulties identified by CBM assessments, then it would be appropriate to continue to use CBM as means of measuring instructional effectiveness after identification and instructional services have been provided.   It used to be that in using CBM the practitioner was forced to make a choice between using local norms on CBM measures or national norms on a nationally normed test or both.   However, AIMSweb has to some extent provided end users with the best of both possible worlds, in that its CBM products now come with true national norms available (albeit for grade, not age.)   AIMSweb Technical Documentation on CBM

Question:  Do the federal regulations say that it would be inappropriate to discharge a child with a disability just because s/he no longer meets the state’s eligibility criteria if s/he still needs special educational services?

Answer:  Not exactly.  IEP teams of course can do whatever they want, as long as the parents do not challenge by exercising their due process rights  I think I know what  you’re referring to, and I’ll get to it in a minute, but not since 1997 should this issue ever come up in the first place.   No new testing needs to be done at the triennial if everyone is agreed Johnny is still SLD that there is enough current information on hand to determine the child’s current present levels of performance (PLAAFP). ( http://www.pacer.org/parent/php/PHP-c186.pdf )    And OSEP clarified more than ten years ago  that even if  an IEP team wanted to add a goal area at (or before) the triennial, once a child has qualified, irrespective of the original area of discrepancy, it is the responsibility of the school system to address all of his special educational needs . . . and that it would NOT be required for that child to demonstrate a severe discrepancy between IQ and achievement in the new goal area, just a need for sped.   For more on that subject and a link to the letter, see:

https://www.myschoolpsychology.com/disability-information/specific-learning-disabilities/#adding-math-to-an-iep-for-a-child-identified-based-on-reading

I suspect that the reference you’re remembering was from an OSERS discussion in 2006 regarding a different subject.  The question, abbreviated, was what should a school do about children with disabilities  who were placed using one methodology but who are being reevaluated using another.  However, while the context differs, the guiding precepts would still appear applicable even if a state or school system had NOT changed its eligibility criteria.

States that change their eligibility criteria for SLD may want to carefully consider the reevaluation of children found eligible for special education services using prior procedures. States should consider the effect of exiting a child from special education who has received special education and related services for many years and how the removal of such supports will affect the child’s educational progress, particularly for a child who is in the final year(s) of high school. Obviously, the group should consider whether the child’s instruction and overall special education program have been appropriate as part of this process. If the special education instruction has been appropriate and the child has not been able to exit special education, this would be strong evidence that the child’s eligibility needs to be maintained.  p. 46648, 2006 FR

In short, once a child has been identified and placed, IEP teams have a considerable amount of discretion.

Putting in the language used by OSERS should carry more authority.   The 2006 Final Regulations also included the following list of prohibitions:

In all cases, placement decisions must be individually determined on the basis of each child’s abilities and needs and each child’s IEP, and not solely on factors such as category of disability, severity of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience.   p. 46588  2006 FR

 Consistent with § 300.304(b) and section 614(b)(2) of the Act, the evaluation of a child suspected of having a disability, including an SLD, must include a variety of assessment tools and strategies and cannot rely on any single procedure as the sole criterion for determining eligibility for special education and related services. This requirement applies to all children suspected of having a disability, including those suspected of having an SLD.  p. 46646  FR 2006

 Further, § 300.304(b)(2), consistent with section 614(b)(2)(B) of the Act, is clear that determining eligibility for special education and related services cannot be based on any single measure or assessment as the sole criterion for determining whether a child is a child with a disability.   p. 46652  FR 2006

https://www.myschoolpsychology.com/wp-content/uploads/2014/02/final-2006-regulations-for-the-IDEA-2004.pdf

It  is also almost mandatory since the 2008 ADAAA for an IEP team considering declassification of a child with SLD to also consider whether the student in question would need continuing general education accommodations through a 504 Plan based on his/her continuing to have dyslexia or meeting DSM 5 criteria for a specific learning disorder.

1.7 Change in Placement

April 6, 2014 Question:  Doesn’t the retention of a special education student constitute a change of placement requiring IEP team approval?

April 6, 2014 Question:  Doesn’t the retention of a special education student constitute a change of placement requiring IEP team approval?

Answer:  I  asked about the same question from OSEP  fifteen years ago, and their response was that retention was not a change of placement, that an IEP team did not have to be convened, but that it could be raised as a due process issue during a due process hearing if FAPE was at issue and that if the administrative law judge or hearing officer ruled that as part of a settlement a child could not be retained that decision would be final unless the school system appealed.   (For exact language, see link below.) There has been one OSEP letter on that same topic since then in 2003 regarding Florida’s mandatory retention policies that provided a slightly more current opinion, but it did not differ significantly from their previous pontification.

The 2000 OSEP letter:  2000 Letter on Retention and Changes in Placement

Regarding Florida’s mandatory retentions in 2003:   OSEP Letter to Wellington re FL Mandatory Retention Requirements

Just because OSEP and OCR do not regard it as a change of placement, that does not mean a principal could not ask the IEP team to make a recommendation.  While not inappropriate, it is just not a legal requirement.

Wrightslaw has some strategies for parents to help them fight a retention, but if the teacher is recommending it, the parent is agreeing with it, and the principal is supporting it, after a school psychologist has said his/her piece, it’s probably time to move on to another battle.   I found out the hard way that if Principal Jones had a brother who was retained but who, after graduating, became the successful manager of a local Hardee’s, putting thirty research papers on his desk saying that retention is an exepensive but ineffective intervention was not going to be any more effective than just giving him one or two research summaries and NASP position statements.

For Wrightslaw’s suggestions to parents who want to fight a retention, see:

Wrightslaw Suggestions on How to Fight Retention

There are a plethora of free research papers on the Internet available on the topic of social promotion and retention.   When retention was raised as a referral question, I always cited a paragraph from the archived United States Department of Education paper on Taking Responsibility for Social Promotion.   I also provided in my reports my state’s statutes governing promotion and retention decisions.   Not all states have relevant statutes, but almost all school boards have promotion retention policies that serve as guidance to the professional staff; if state dicta is unavailable, then those policies could be cited.   NASP also has several Position Statements on retention that it would be appropriate for a school psychologist to share with parents and staff.

graderetention NASP Position Paper on Retention
OSEP LETTER TO McBride (Redacted)

If the law allowed you to shoot yourself in the foot, that wouldn’t mean you should.   The same applies to retaining students in grade.   But the question here was not whether disabled students should sometimes be retained but whether it was unlawful for a school to do so.   With or without an IEP team meeting, the short answer is “No.”

)

2.0 PROCEDURAL SAFEGUARDS

2.1 Prior Notice

Question:   Is a school psychologist required to give a parent attorney a draft copy of the eligibility report if she demands it? 8/19/15

Question:   Is a school psychologist required to give a parent attorney a draft copy of the eligibility report if she demands it? 8/19/15

Answer:  No.    Making a statement of eligibility prior to the eligibility team’s meeting would be a usurpation of the authority delegated to that group of qualified professionals and the parent constituting that team and could very possibly be found in an adversarial proceeding to have been fatal flaw in the provision of the child’s rights.   See page 46691 of the FR..

https://www.myschoolpsychology.com/wp-content/uploads/2014/02/final-2006-regulations-for-the-IDEA-2004.pdf

A public agency meets the
requirements in § 300.503 so long as the
prior written notice is provided a
reasonable time before the public
agency implements the proposal (or
refusal) described in the notice. A
public agency is not required to convene
an IEP Team meeting before it proposes
a change in the identification,
evaluation, or educational placement of
the child, or the provision of FAPE to
the child. The proposal, however,
triggers the obligation to convene an IEP
Team meeting. Providing prior written
notice in advance of meetings could
suggest, in some circumstances, that the
public agency’s proposal was
improperly arrived at before the meeting
and without parent input.

In some states, the evaluation report mandated by the IDEA is attached to the determination of eligibility.     Federal regulations do give parents the right to see any evaluations the school will be presenting at an IEP team meeting if they ask for them; some states REQUIRE parents be given that data before that meeting.   (See your state regulations, which can usually be found on our state regulations page at:   State Regulations, Part B Agencies, State Forms, and RTI Links )

(For 300.316 itself, see Section 300, 2006 FR  )

Although the regulation above does not require evaluations to be provided before an eligibility meeting, IEP and eligibility meetings are often combined, rendering the distinction moot.

School psychologists are not usually appointed as records officers by school board.  Although the answer would be the same (There is no obligation to present a parent or their attorney with a draft eligibility report), it is recommended that such a request be forwarded to an appropriate administrator..

2.2 Due Process Rights

Question:   Is it Necessary to Get Publisher Permission before Entering a Test Protocol into Evidence for a Due Process Hearing?  7/11/2014

Question:  If a settlement agreement between a parent and the school system requires the parents to give up some of their legal rights under the IDEA (e.g., agree to a placement outside of the school system in lieu of FAPE, waiving their right to file any charge or complaint or to participate in any complaint made by anyone else), could the agreement be enforced in a court of law?
Question:  When parents disagree over an initial evaluation, what should the school do? (Test or not Test)

Question:  My Administrator says if a parent revokes consent for services based on the 2008 IDEA Amendment, s/he also forfeits any claim to services under Section 504.  Is that correct?

Question:   Is it Necessary to Get Publisher Permission before Entering a Test Protocol into Evidence for a Due Process Hearing?  7/11/2014

Answer:   No.

It is well established that test protocols are a part of the educational record.  Parents may inspect and parent attorneys may subpoena the educational record.

Although not specifically addressing your question, California even requires schools to provide parents with copies of the test protocol.  A district court in California upheld that regulation as falling within “fair use.”  Court Decision:  District Court Decision (CA): Okay to give Parents Protocols

FPCO addressed parent’s rights in a 1997 letter.  FPCO 1997 Letter Addressing Parent Rights

The right to access, which would extend to the parents’ attorney, does not require publisher approval.

At least one publisher, Pearson, has attempted to impose a number of additional restrictions on the release of protocol requested in litigation.   These are the pubishers’ requests . . . whether or not to acquiesce to them is a decision to be made by administrators at a higher pay grade than most school psychologists in direct consultation with the board attorney.  For informational purposes only, a quote from Pearson’s policy statement is reproduced below:

Should litigation in which a psychologist is involved reach the stage where a court considers ordering the release of proprietary test materials to non-professionals such as counsel, we request that the court issue a protective order prohibiting parties from making copies of the materials; requiring that the materials be returned to the professional at the conclusion of the proceedings; and requiring that the materials not be publicly available as part of the record of the case, whether this is done by sealing part of the record or by not including the materials in the record at all.

In addition, testimony regarding the items, particularly that which makes clear the content of the items, should be sealed and again not be included in the record. Pleadings and other documents filed by the parties should not, unless absolutely necessary, make specific reference to the content of or responses to any item, and any portion of any document that does so should be sealed. Finally, we ask that the judge’s opinion, including both findings of fact and conclusions of law, not include descriptions or quotations of the items or responses. We think this is the minimum requirement to protect our copyright and other proprietary rights in the test, as well as the security and integrity of the test.   Pearson’s Policies

Question:  If a settlement agreement between a parent and the school system requires the parents to give up some of their legal rights under the IDEA (e.g., agree to a placement outside of the school system in lieu of FAPE, waiving their right to file any charge or complaint or to participate in any complaint made by anyone else), could the agreement be enforced in a court of law?

Key Phrase:  Settlement Agreement

Answer:  This was an unusual question in that the parents in this case were explicitly giving up their child’s right to FAPE in a legal settlement agreement, not just their right to contest the agreement through any of the due process mechanisms available through the IDEA.  In return, however, the school system agreed to pay their child’s tuition at the private school, even though the administration did not agree it would provide the student with an appropriate education.  The basic elements of a contract (quid pro quo) being satisfied.

Nothing is ever quite that simple, however, as several letters from OSEP over the years have illustrated.  Basically, if both parties adhere to the agreement, it may be enforced by the state; but if one party fails to comply (e.g., fails to make timely tuition payments as agreed upon) then all bets would be off.

 To the extent that the State complaint only alleges violations specific to the child who is the subject of the settlement agreement, as with a due process hearing decision, the State may determine that the settlement agreement is binding on these parties as to one or more issues in the complaint and inform the complainant to that effect. However, if the State complaint alleges systemic noncompliance or the State has reason to believe that the violations are systemic, it must investigate the matter. If the State finds systemic violations, it must provide for appropriate remedies to other affected students, including corrective actions to address both past violations and future compliance   (see link below)

With respect to an agreement being enforceable on a third party who was not a signatory, OSEP observed that it was not enforceable.

a signed written settlement agreement reached through mediation is enforceable in any State court of competent jurisdiction or in a district court of the United States. We note that, in general, a settlement agreement is enforceable only on the parties to the agreement and not on third parties that are not signatories.

And as noted above,

Therefore, a failure to implement an IEP that is based on a settlement agreement would be the basis for a complaint allegation that an LEA is in violation of Part B. 

And as noted above, any violations by the school system, actually, of the terms of the agreement would be actionable.

 A written, signed mediation agreement is legally binding and enforceable in any State court of competent jurisdiction or in a district court of the United States.  http://pattan.net-website.s3.amazonaws.com/files/materials/osep/CY2007/Shaw121207.pdf   

The 2006 FR also gives the SEA the authority to enforce a Settlement agree should the district renege on its promises (Section 300.510).   Although states may offer those services, parents are not required to exhaust any/all administrative remedies available since the law clearly gives them the right to proceed directly to state or federal court.   Section 300.510

And of course if the district does not renegotiate a satisfactory agreement with the parents for following year, all bets would also be off.

Although the principles would of course remain constant, different facts can lead to different outcomes.    Section 300.506 of the 2006 FR states that the settlement process may not be applied in such a manner as to deny or delay a parent’s right to a hearing or deny them any other rights under Part B (one example being a resolution of their complaints within a 60 day time frame.)  Section 300.506

Although the example of a right under Part B above is found in the 2006  FR, there are other rights the denial of which could also bring an adverse ruling from the state or court, e.g., “unilateral revisions of IEP’s by school districts without parental input or participation; automatic extension of an existing IEP beyond a duration date of one year; agreements not to count days of suspension so as not to trigger the rules for manifestation determination review and behavior intervention plans; and waivers of parental rights to participate in the reevaluation process.”   That listing of real life examples from a  July 31, 2000 policy letter from the NC Exceptional Children Division  is also not exhaustive.

An example of an agreement that would NOT fall within the meaning of a “settlement agreement” would have been implementation of a process called “Procedures Lite” in which several Massachusetts school systems asked parents to voluntarily give up their rights under the IDEA.   Parents were not signing Procedures Lite contracts as a result of a disagreement (hence, they were not signing a settlement agreement); nor were they getting anything in return, except possibly the good will of their school system, which however was not guaranteed in the contract.  Such agreements, clearly unlawful, are however distinguished from Settlement Agreements that routinely include waivers from the parents of further claims or processes in return for a guarantee of special education, related services, or agreed upon accommodations to provide a child with FAPE.

This question as originally phrased was unique in that the agreement signed by both parties appeared to be that the settlement would NOT provide FAPE.     While districts are obligated under the IDEA to offer FAPE, parents have not been obliged to accept those offers since the 2008 Amendment to the Federal Regulations giving them the right to withdraw consent for special educational services.   Additionally, since both parties got what they wanted (a guarantee from the parents not to sue, tuition for a private school from the public school), the contract appears to be valid.  For parents to succeed in a tuition reimbursement case, they have the burden of proof in showing (1) that the district’s program would not provide FAPE and (2) that their proposed placement would provide FAPE.     In this instance, the school system  apparently capitulated without requiring the parents to do either, but that in and of itself does not appear to be unlawful.   Regardless, neither party appears likely to contest the agreement.  9/28/15

GMM

Question:  When parents disagree over an initial evaluation, what should the school do? (Test or not Test)

Answer:  When John, Ron, and I were writing our book (Essentials of IDEA for Assessment Professionals [2011]), this issue came up but a definitive legal response was not available.   So we punted. The question is, “what should a school do if the parents of a child disagree about an evaluation?” For example, suppose two parents, divorced but sharing legal custody, disagree on the need for an evaluation. One parent (dad) notifies the school of concerns and signs consent for an initial evaluation. Mom, discovering what dad has done, notifies the school that consent is not being given. How, and to whom should the school respond – the request for an evaluation – or the denial of consent?  The situation today remains basically unchanged.

Federal Regulations:  Both the 2006 Final Regulations and the 2008 Amendment are absolutely silent with respect to whose opinion the school must respect . . . the consenting or dissenting parent . . . when it comes to evaluations.   The federal regulations allow a school to suggest mediation or to take a dissenting parent to due process if it wants to overrule the objection, but it is not required to do so.   At least one state, Minnesota, has regulations prohibiting schools from doing even that.  Courts both in Minnesota and New York ruled in 2009 that the only recourse for a dissenting parent would be to seek court relief.  The reasoning in Minnesota was based on a state law prohibiting public agencies from trying to override a parent’s rejection of the school’s request to conduct an initial evaluation. The New York decision regarding the parent’s exemption from exhaustion of remedies was apparently based on the failure of the school’s attorney to provide legal citations supporting that right . . . which as we see below are clearly enumerated under Sections 300.503 and 300.507.

Complicating matters, even though the 2008 regulations did not explicitly address a parent’s right to re-refer a child when the other parent rejected services, a Letter to Cox from OSEP in 2009 clarified that after one parent revoked consent for services, either parent, including a parent other than the parent who revoked consent, maintained the right to subsequently request an initial evaluation under 300.301.

While our regulatory agencies appear to regard parents as monolithic, with only one opinion between them regarding evaluations, the 2008 Amendments regarding parents at odds over whether their child should or should not receive any sped services were crystal clear.   In that scenario, when parents are in disagreement over services, the dissenting parent’s views must be respected and if the other parent wants to challenge that refusal, s/he must take the other parent to court.   Administrative resolution procedures are not available. 

The two court cases, one from Minnesota, and the other from New York, referenced above are summarized with links below.

1. A Minnesota court has held that if parents are divorced and have a  joint custody agreement then if one parent refuses consent, the school may NOT proceed with the evaluation even if the other parent has agreed to the assessment.  That court opined that the parents could resolve their disagreement by going back to court.

In Minnesota, there was a state law prohibiting school systems from overriding parental decisions on initial evaluations, so it appears that neither party had administrative remedies available.  J. H. v. Northfield, May 5, 2009, State of Minnesota Court of Appeals.   Although it appears on the face of it that Minnesota’s application of federal regulations gives parents more rights than required by Congress, in actuality, and just as a footnote, the judge said that even though the school could not invoke due process, it still could in such a circumstance refer a parent to protective services based on their suspicion of neglect (based apparently at least in part on the presumption that refusing consent constituted neglect on the part of the parents.)
http://minnlawyer.com/wp-files/pdf/opa081213-0505.htm

2. In New York the same year (Zeichner v. Mamaroneck Union Free Public Schools, June 24, 2009) a similar decision was reached on behalf of the dissenting parent, although the grounds were  different.   In NY, the schools were arguing that the parents had not exhausted administrative remedies before going to court.   However, the court said a close reading of what the school attorney have provided only revealed that the school has the right to take a dissenting parent to due process, not the opposing parent, and the opposing parent was not even a party to the school’s action so her rights weren’t a consideration of the court’s.   Whether they were or were not, subsequent sections of the IDEA (Sections 503 and 507) are quite specific in saying that parents may use administrative means (an impartial hearing) to challenge a school system’s decision to evaluate or refuse to evaluate their child.The school system also could have asked the dissenting parent to come in for a mediation meeting, but the schoolvadministration didn’t think that they could because the matter was before a court and five months earlier the judge had issued an injunction prohibiting them from testing the child.   Putting it kindly, the judge found their reasoning exceedling flawed.   It was equally clear that he thought the parent in his instance probably had a pretty good case.   However, that was not the question before his court, and not the question he actually answered.   What he actually wrote was,

There is nothing in the record before this Court that establishes any special or compelling circumstance which requires that petitioner’s wishes with respect to his child not being evaluated be disregarded, see Matter of Deeds, 156 Misc.2d 805, 594 N.Y.S.2d 948 (N.Y. Co. Surr. Ct.1992), which conclusion necessarily is buttressed by the inescapable fact that it had not been Zachary’s teacher or the District which had initiated the evaluation.   It is not for this Court, in the context of this motion, to adjudicate the issue of the appropriateness of petitioner’s position, but the Court parenthetically notes that petitioner has made some compelling arguments against having his son tested.

With respect to the school’s claim that the parent had failed to exhaust administrative remedies that judge wrote,

While respondent argues that this proceeding must be dismissed because petitioner has failed to pursue his administrative remedies, a careful reading of respondent’s submissions makes clear that respondent has failed to specifically identify what is the administrative review process under IDEA that petitioner had been required to pursue to prevent his son’s testing.   Indeed, respondent states, without referencing any statutory authority, that “administrative procedures are available to review petitioner’s challenge of the CSE’s intent to evaluate Zachary for the possible presence of an educational disability,” (Memorandum of Law, p. 7), but then it references only statutes and Regulations which afford certain procedural safeguards during the evaluation process.

It wasn’t clear what regulations the school system had cited; but the relevant regulations would or should have been Section 300.503, which lists those actions for which prior written notice is required, and Section 300.507 which explicitly says that a parent or public agency may ask for a hearing relating to the evaluation of a child
The decision: http://caselaw.findlaw.com/ny-supreme-court/1316043.html

Section 300.507 https://www.law.cornell.edu/cfr/text/34/300.507

Neither of the cases above was one that this writer would have normally cited under Guy’s Log as a Litigation Update because of both courts limited jurisdiction and also because of the rather unique set of circumstances in each situation. Additionally, the Minnesota decision was unpublished, meaning it could not be used as precedent even in Minnesota except under very limited circumstances. In other words, neither of the cases above should be relied upon for guidance.

Lest there be any doubt, in the Minnesota case, the judge also wrote, without citation,

The school district also cites to decisions from other states that allow a school district to proceed with an initial evaluation when one parent consents and another parent refuses.

The Minnesota judge dismissed those decisions, without analysis or citation, as non binding.   We are not in a similar position to assess their applicability.

In the absence of applicable federal regulations, or a precedential federal circuit or supreme court decision, the actual answer to the question, “Which parent gets precedence in a dispute over a testing consent?” may therefore be state specific.

That conclusion is supported by this quotation from a Maine due process hearing decision:

The Maine Special EducationRegulations speak directly to the issue of what happens when one parent with joint custody gives consent, while the parent with joint custody refuses to consent. MSER section12.11(C) states, in part:

Generally, either parent may grant consent. In the case of divorced parents with joint custody either parent may grant consent. However, in the event that one parent grants consent and the other parent refuses, then the school is obligated to initiate the action for which consent has been granted 

The Administrative Law Judge (ALJ) went on to say

The meaning of the regulation as applied to this case is clear: because the student’s mother, a divorced parent with joint custody, has given her consent, the school is not only allowed to proceed with the evaluation, identification and initial placement of the student, it is obligated to do so.

Special Education Laws Page

While the NY judge in the case above had found there were no administrative remedies for parents to resolve intra family disputes, more than one ALJ in other states has concluded otherwise.

There was also a decision out of California by an ALJ, which is not being cited here, who interpreted a court Marital Agreement as requiring the school to get both parents’ signatures on a consent before proceeding with an evaluation. Significant for the warring parties because the prevailing party would be entitled to attorney fees. Mentioned here to illustrate that every case involves a roll of the dice and no case is a slam dunk. 

Our unofficial guidance: In the absence of written guidance from your state, when parents disagree in writing over the provision of an initial evaluation to a student, the school (IEP team) should conduct the initial review required by Section 300.305. (If the opposing parent has not expressed his or her wishes in writing, in our opinion s/he should be advised of the right to do so if they want the IEP to consider their opinion. Alternatively, the opposing parent could attend the IEP team meeting and either s/he could record her opposition OR the school could do so for the record.) For the full text of 300.305, click on the following link https://www.law.cornell.edu/cfr/text/34/300.305 or review the correlate regulation in your state regulations which may be found at:https://www.myschoolpsychology.com/federal-regulations/state-regulations-part-b-agencies-and-state-rti-links/

Since that review, including any screenings conducted under Section 300.302, would not constitute an evaluation, consent would not be required from either party.   Then on the basis of those findings the team should decide whether additional testing was needed. That decision when transmitted to both parents should be accompanied by your state’s parent handbook of rights, outlining the steps that the aggrieved parent can take using administrative remedies to challenge that decision.   Compliance with the procedural requirements is no guarantee of success in an adversarial proceeding, but (in this writer’s opinion) being in a position to defend the district’s choice based on its own assessment of the situation should improve your school system’s chances.   

Question:  My Administrator says if a parent revokes consent for services based on the 2008 IDEA Amendment, s/he also forfeits any claim to services under Section 504.  Is that correct?

Answer:  The legal theory is that Section 504 only requires a school to offer a 504 eligible child with a disability FAPE, and since it has already offered that child FAPE with an IEP, then it is under no further obligation to offer services via a 504 Plan if the parent has rejected an IEP providing FAPE under the IDEA.    There is however NOTHING that would prevent a school system from offering services under 504 to a child whose parents revoked consent for special educational services under the 2008 IDEA Amendment.   Also, if providing a child with a disability needed accommodations would enhance his academic achievement, contributing to higher overall scores for the district, shooting yourself in the foot just because you can would seem imprudent.

That’s the short answer, more or less.   The theory is based on a 1996 OCR Letter from OCR to McKethan, in which the Office for Civil Rights said what I said above . . . that if a school system has offered a student FAPE via an IEP and the parents rejected that offer, the student became a general education student with no additional rights under Section 504.   There have not been a lot of 504 cases, and the only one after passage of the  2008 IDEA Amendment that specifically addressed that issue was Lamkin v. Lone Jack in 2012.   In that case, the parents revoked consent under the 2008 amendment for services under the IDEA, but when they requested accommodations under 504, the school refused.   The parents sued.   The court sided with the school system.  I do not have a link to the decision itself and it was apparently “unpublished.”  (For further information on what it means to be “unpublished,” click on the Spedlaw tab.  In short, it means that the decision has little or no precedential value, even in the district wherein the ruling was issued.)

Here are some other summaries:

Lamkin v. Lone Jack C-6 School District, 58 IDELR 197 (W.D. Mo. 2012): The Court determined that when the parent of a student with cerebral palsy, seizure disorder, visual impairment, scoliosis, and osteoporosis revoked consent for the provision of services under the IDEA, the parent also in effect revoked consent for services under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA).  After having disagreed with the IEP team’s decision to place the student at a school for the severely disabled, the parent revoked consent for the provision of IDEA services, but requested accommodations under Section 504.  The school district did not violate Section 504 or the ADA when it rejected this request.

Lamkin v. Lone Jack

So if the parents of a student eligible under the IDEA and Section 504 revoke consent for IDEA services, must the district provide services under a 504 plan?  According to a federal district court in Missouri, the answer is “No.”  In Lamkin v. Lone Jack C-6 School District, the district offered an IEP that called for placement in a state-run school for students with severe disabilities.  The parents rejected the IEP and placement, but rather than filing a due process complaint, revoked consent for IDEA services.  The parents then enrolled their second grade daughter at the local public school and demanded a Section 504 plan.  The district refused to provide a 504 plan because the parents had already rejected its offer of FAPE.  The court agreed with the district, holding that the parents’ “revocation of services under IDEA was tantamount to revocation under § 504 and the ADA.

However, when OSERS issued its Questions and Answers about the 2008 Amendment, it took great care to separate its comments about the Amendment from any rights a child might have under Section 504, so there’s no support on either side of the debate there.

‘These regulations implement provisions of the IDEA only.  They do not attempt to address any overlap between the protections and requirements of the IDEA and those of Section 504 of the Rehabilitation Act of 1973, as amended, and Title II of the Americans with Disabilities Act, as amended.’

Your administrator may (or may not!) be right legally, although relying on a 20 year old letter from OCR and a single unpublished court decision out of Missouri is a bit thin.  Even published circuit court decisions do not always provide reliable precedent outside their jurisdiction.

2.3 Independent Educational Evaluation

Question:  If  a parent completes an IEE for a parent at district expense, is the school entitled to a copy of the test protocols and other work products?  Would permission from the publisher be required before releasing the protocols.

Answer: If the contract with the IEE specified that copies of the test protocols be provided, the contract is enforcible.  If the contract did not specify that copes of the protocols be provided, it would be appropriate for the service provider to comply, but conditioning payment upon compliance would probably not be enforcible.  However, in that instance, the private practitioner’s only recourse would be to employ an attorney.  If an IEE was completed at parental expense, the school would have legal claim to the protocols although it could still request them; and it would be required by the 2006 FR to consider the results as long as it met district standards otherwise.

2.4 Attorney’s Fees

Question:  A parent brings an attorney to an IEP team meeting.  If as a result of her attorney being present the school provides her child with more services than it would have otherwise, would she be entitled to having her attorney fees reimbursed

Question:  A parent brings an attorney to an IEP team meeting.  If as a result of her attorney being present the school provides her child with more services than it would have otherwise, would she be entitled to having her attorney fees reimbursed?

Answer:   No.  OSERS discouraged parents and schools from bringing attorneys to IEP team meetings, although they have a right to do so.   Their reason was that having an attorney present may create an adversarial atmosphere not in the best interests of a child.   Additionally, if the parent has not forewarned the school system, it may cancel the meeting and reschedule when it can have its attorney present . . . resulting in additional cost to the parent.   p. 12478 1999 FR.  1999 FR Link

The reason why attorney fees would not be available under the catalyst theory (or any other theory) for concessions made at an IEP team meeting  is that the IDEA  makes the reimbursement of attorney fees possible only if a parent wins  those benefits as a result of a hearing officer’s or judge’s decision.  For the current regulatory language in the 2006 FR, see Section 300.517.   Link: Section 300.517

2.5 Surrogate Parents

Question:  When must a surrogate parent be appointed?

Answer:   A surrogate must be appointed ONLY when no other parent as defined in the 2006 FR is available.  Specifically, “Section 615(b)(2) of the Act does not require the automatic appointment of a surrogate parent for every child with a disability who is a ward of the State.”  p. 46566 2006 FR.

While state rules do not govern in other states, Idaho’s guidance would be generally applicable:

2.6 Confidentiality

Question:  When is it okay to send confidential information about a child via email?  11/6/2014

Question:   If I give a child a behavioral self rating scale, under what conditions does the PPRA apply?  2/16/14

Question:  My school system is moving all records to Google.  Google says its apps are FERPA complaint.   Is that assurance sufficient to meet confidentiality requiements?

Question:  When is it okay to send confidential information about a child via email?  11/6/2014

Answer:  Records sent from one educator to another educator within a closed school system’s internet service are at little risk of being inappropriately accessed.  Using strategems such as using the first name and last initial of a student poses risks of their own (the danger of one student’s records being confused with another) and are not recommended.   Confidential records should not be sent from within a school system to someone outside the school system, even to a child’s parent, unless they are encrypted.

Education records are governed by FERPA.   FERPA, providing a lengthy list of exceptions, requires the prior written consent of the parent before disclosing information from that record to a third party regardless of the media by which that information is shared.  FERPA Regulations

Putting this discussion within context, the legal implications of an unintential FERPA violation are virtually non existent.  Under the law, the only recourse parents have for FERPA violations is to file a complaint with the Family Policies Compliance Office in Washington, D.C.   FPCO does have the power to cut off a district’s federal funds, but only with the Secretary’s approval, only if the violation occurred as a matter of policy (not just as a single error), and (in the Fourth Citcuit at least) only after a jury trial.  While FPCO could do that, a search on the Internet turned up 0 (zero) instances since FERPA was passed when it actually did so.

Districts may attempt to document that if any FERPA violation does occur, it certainly would not have been the result of a district policy, by including  boilerplate such as the following in all district communications such as:

If the reader of this message is not the intended recipient, you are hereby notified that any unauthorized disclosure, dissemination, distribution, copying or the taking of any action in reliance on the information herein is strictly prohibited. If you have received this communication in error, please immediately notify the sender and delete this message..

Or

This e-mail and any files transmitted with it are confidential and intended solely for the use of the named recipients only. If you have received this e-mail in error do not open or copy it but return it to us 

It’s highly unlikely anyone is going to know an email isn’t for them without opening and reading it first, and the admonitions above (and implied threats) carry no legal weight.  FERPA applies to schools.  It does not apply to “unintended recipients” who are under no obligation whatsoever to preserve confidentiality.

For additional information on protecting electronic records of all types,   FPCO o refer readers to  PTAC.    PTAC Link (FAQs)

Where FERPA rules, HIPAA does not apply, but FYI  here is HHS/OCR’s opinion on whether its security rule allows the transmission of personal health information (PHI) by email:

The Security Rule does not expressly prohibit the use of email for sending e-PHI. However, the standards for access control (45 CFR § 164.312(a)), integrity (45 CFR § 164.312(c)(1)), and transmission security (45 CFR § 164.312(e)(1)) require covered entities to implement policies and procedures to restrict access to, protect the integrity of, and guard against unauthorized access to e-PHI. The standard for transmission security (§ 164.312(e)) also includes addressable specifications for integrity controls and encryption. This means that the covered entity must assess its use of open networks, identify the available and appropriate means to protect e-PHI as it is transmitted, select a solution, and document the decision. The Security Rule allows for e-PHI to be sent over an electronic open network as long as it is adequately protected

Question:   If I give a child a behavioral self rating scale, under what conditions does the PPRA apply?  2/16/14

Answer:  The Protection of Pupil Rights Act only applies to pupils of a minor age when a school or public agency (or its contractors) conducting the survey if it receives funding for any of its programs from the United States Dept. of Education.

• The Protection of Pupil Rights Amendment (PPRA) (20 U.S.C. § 1232h; 34 CFR Part 98) applies to programs that receive funding from the U.S. Department of Education (ED). PPRA is intended to protect the rights of parents and students in two ways:It seeks to ensure that schools and contractors obtain written parental consent before minor students are required to participate in any ED-funded survey, analysis, or evaluation that reveals information concerning:
  • It seeks to ensure that schools and contractors make instructional materials available for inspection by parents if those materials will be used in connection with an ED-funded survey, analysis, or evaluation in which their children participate; and
• Political affiliations;
• Mental and psychological problems potentially embarrassing to the student and his/her family;
• Sex behavior and attitudes;
• Illegal, anti-social, self-incriminating and demeaning behavior;
• Critical appraisals of other individuals with whom respondents have close family relationships;
• Legally recognized privileged or analogous relationships, such as those of lawyers, physicians, and ministers; or
• Income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program).

When parents have given their consent to an IDEA evaluation, the rights above would not apply.

Other than filing a FPCO complaint, it is my understanding that parents have no private right of action under the PPRA any more than they do under FERPA.   Their only recourse is to file a complaint with FPCO for an alleged violation.  Neither FERPA nor the PPRA would apply to any private practitioner unless he or she was working a contractor for the public school system.

http://www2.ed.gov/policy/gen/guid/fpco/ppra/index.html?exp=4

It’s not a law to be feared (like Section 504) but it is probably best to conform to its demands.  Still, since the only possible penalty is having your federal funding withheld, and since I’ve never heard of a school system losing funds because of a PPRA violation, I’d still try to dot my i’s and cross my t’s to keep my supervisors from thinking ill of me.   For more authoritative resources, see the PPRA menu under the Spedlaw FPCO tab.

Question:  My school system is moving all records to Google.  Google says its apps are FERPA complaint.   Is that assurance sufficient to meet confidentiality requirements?

Answer:   Hackers are always a potential hazard, but if the risks were serious, then cloud based tests like the WJ 4 would be banned.

Underlying the original question was a concern about the ethical and legal obligations of a school psychologist with respect to the preservation of confidentiality under FERPA.

I’d like to address it from another perspective:  what are the actual legal risks that might result from an unintentional FERPA violation?   Actually, that question would be too easy, because the answer there  is “None.”   So let me create a hypothetical situation where a FERPA violation by a school administrator is intentional.

A New York City Charter is attacked in the public press by a parent for their handling of a disciplinary situation.  The principal responds by posting the child’s disciplinary record on the Internet wherein the ten year old is described as being “very violent.”   The press reports the incident, saying that the parents have no private right to enforce FERPA, and the principal, because she is politically connected and even ran for mayor, will likely suffer no adverse consequence.

The press is substantially correct in saying that the parent cannot independently enforce FERPA.   The Supreme Court in Gonzaga v. Doe (2002) said in part,

Because FERPA’s confidentiality provisions speak only in terms of institutional “policy or practice,” not individual instances of disclosure, see §§1232 g(b)(1)—(2), they have an “aggregate” focus, they are not concerned with whether the needs of any particular person have been satisfied, and they cannot give rise to individual rights, Blessing, supra, at 344. The fact that recipient institutions can avoid termination of funding so long as they “comply substantially” with the Act’s requirements, also supports a finding that FERPA fails to support a §1983 suit.

https://www.law.cornell.edu/supct/html/01-679.ZS.html

Although FERPA does not allow them to sue for damages, parents are actually not without some recourse, but they would have to know that Section 99.63 of FERPA gives them the right to file a complaint and gives the address where that complaint should be sent to FPCO in Washington, DC.

FERPA LINK

FPCO would investigate the complaint.  but as the Supreme Court reported above, Section 99.67 of FERPA (link below) requires them to investigate the complaint to determine whether the violation reflected a policy or practice of the institution.  So at the federal level, the principal’s political connections would be irrelevant because FPCO’s concern would be focused on whether or not the school’s policies were substantively in compliance . . . not on the particular person who violated them.   If it did conclude that the violation reflected an impermissible policy or practice, however, it would start waving its big stick in the air, threatening to withhold some of all of the school’s federal funding unless the school system voluntarily agreed to sin no more.  “We agree we will never ever sacrifice a ten year old’s reputation in violation of FERPA in an effort to protect our school’s reputation ever again.”

The principal could of course be disciplined by the school trustees of the charter school if she refused to abide by the agreement, thereby putting their federal funding at risk.  However, in that instance, political connections COULD count, as could the degree to which the trustees secretly (or not so secretly) supported her in her decision  to ruin a child’s reputation in defense of their school’s reputation.

However, since there have been no reported instances since the founding of FPCO where FPCO actually withheld funds from any educational institution,  the downside risk of even an intentional violation, at least for the school, appears to be mostly limited to bad press. There have however been several instances where FPCO has taken an educational institution to court in order to obtain a court order enforcing FERPA.

United States v. Miami, Sixth Circuit

For a recalcitrant employee charged with insubordination for violating a child’s rights, thereby jeopardizing the school’s funding,  the risks could be greater, but that would be a local matter.  And if a school psychologist is conforming to his or her school’s administrative policies and practices, then the risk of administrative penalties for doing what she or he was told to do would similarly be non existent.

For a real life example of my hypothetical, see:
Success Academies and FERPA

Although the potential consequencess for an unintentional FERPA violation are low, it is not my intention to summarily dismiss school pschologists legitimate concerns about protecting pupil privacy online.   It is just that the employees involved in decision making process that goes into those kinds of contractual relationships  are typically above the psychologist’s s pay grade.  There is however a considerable amount of  information online about the steps schools should take in protecting data stored online.

The Privacy Technical Assistance Cener (PTAC) offers districts a one stop resource on data protection.   Its page on Protecting Privacy while Using Online Services as well as its kit on data breach training seem especially relevant within the context of this discussion:  Privacy Technical Assistance Center (PTAC)

If anyone is engaged in assessing whether or not a particular online storage system for a school system would be appropriate, he or she could also look at:

Online Educational Services February 2014

Safeguarding Student Privacy Link

Protecting Student Privacy While Using Online Services

2.7 Destruction of Records

Question:  What are the  timelines  for the destruction of sped records, whether are there different rules for preschool files, and what are the timelines for record destruction in private practice?

Question:  Is it okay to destroy private counseling notes after a student has graduated?

Question:  What are the  timelines  for the destruction of sped records, whether are there different rules for preschool files, and what are the timelines for record destruction in private practice.

Answer:  A definitive response would depend on where you practice.   Various states impose restrictions upon their schools in addition to what is required by both FERPA and the IDEA.   FERPA imposes no time limits but allows schools to dispose of educational records (with a few exceptions) whenever they are no longer needed without parental consent.   IDEA does not require parental consent, but it DOES require prior notification so the parents can pick up the records before they are destroyed if they want them.   Some school boards do have policies ranging from five to seven years after exiting the program, but FERPA no longer requires school boards to have record policies, just an annual notification telling parents what their rights are under the law.  Still, you’d need to check your school board policies to be sure they don’t impose restrictions not required by federal law or state statute.   Protocols are by definition (FPCO and OSERS definitions) educational records and are therefore protected.   I know of no distinctions by age under Part B with respect to a child’s age and the protections applied to his or her records under the law.   .  See “34 CFR 300.624  Destruction of Information”

California does things differently . . . they require copies of the protocols to be provided to the parents.  Enough said about California.

In our NC system, we kept the records for one year after a student aged out of eligibility.  We purged them after placing a prior notification in the local newspaper and waiting a couple of weeks before shredding them.

In South Dakota, they operated using the following guidance:

“For example, IDEA require s that parents be inform ed when a school proposes  to destroy student records. Parents must be informed  of their right to request destruction of information  whenever their child graduates or  leaves school, and with certain excep tions, this information must be  destroyed at the parent’s  request. The district may establish specifi c times, such as IEP meetings, school  registration, or program completion, to inform pare nts that personally identifiable information is no  longer required and wi ll be destroyed.”

Texas on the other hand is a bit more specific.   https://www.tsl.texas.gov/slrm/recordspubs/sd.html  Destroy records contrary to the policies set forth in that link, and  you could be liable to criminal prosecution under Texas laws.

I believe APA has recommended that for adults records be maintained for seven years after the date of last service and for minor students three years after the student reaches the age of majority.

Question:  Is it okay to destroy private counseling notes after a student has graduated?

Answer:  There are two types of records kept in schools.   Education records, which may be inspected by the parents and shared with other professionals.  And personal notes, defined by the FERPA regulations as

(1) Records that are kept in the sole
possession of the maker, are used only as
a personal memory aid, and are not
accessible or revealed to any other
person except a temporary substitute for
the maker of the record.

https://www.myschoolpsychology.com/wp-content/uploads/2014/02/2012-final-ferpa-regs.pdf

State laws often impose higher standards on psychotherapy notes kept by private practitioners.  whose records are protected by HIPAA.  However, even under HIPAA, the commonly understood definition of a personal health record is that it is something that may be released upon request.    In NC, where I practice, health, records maintained by a private psychologist must be maintained for three years past the age of majority or seven years, whichever is longer.  In private practice if the notes taken during a session are the psychotherapy notes maintained as part of the client’s permanent record–that is, constitute permanent psychotherapy notes –, then of course they would be subject to HIPAA and the state laws regarding both HIPAA and the maintenance of psychological records because the expectation is that they could be released to another service provider.   If the notes taken were NOT intended to be part of the treatment record, that is, were not intended to be shared, even in private practice they would not be considered a record as commonly defined.

But in  schools,  where FERPA rules HIPAA does not.

http://www.ncpsychologyboard.org/Office/PDFiles/RecordMaintenance.pdf

And aas noted above, a document in a school file is either (1) an education record, which  has or may be shared with other professionals and may therefore be inspected by the parent upon request or (2) a personal note, not shared with anyone, which may not.

My assumption is that the personal notes referenced in the original query were not intended to be treatment records, which could be sent to another professional, e.g., a private therapist.   In that case, the records maintained by the school psychologist would be education records under FERPA, while  the records sent to the private practitioner would be covered by HIPAA . . . and of course the various and sundry state laws on their maintenance and retention would apply to the private practitioner.

HOWEVER.  Even personal notes should not be destroyed if they have been subpoenaed for a court hearing or if they may be needed to defend the school psychologist in an adversarial situation.   An example of the first would be an ugly divorce where one parent was alleging that the other parent had sexually abused or otherwise mistreated a child.  Even in states where school psychologist counseling notes are privileged, a judge after reviewing the notes in camera might declare them admissible  for the proper administration of justice.  An example of the second would be a situation in which a student “client” committed suicide, and the school psychologist would need the notes to show he or she was unaware of the child’s self destructive intent (and therefore had no duty to warn the parents.)

In short, whether intended as personal notes or part of the educational record, school psychologists should ALWAYS be careful in what they write.

3.0 DISCIPLINE

3.1 Suspensions

Question:  Can someone direct me to some of the best documentation to share with school administrators regarding why we legally cannot compel a parent to take their child home from school with a stated reason of “the child did not take his medications” for mood management and ADHD?

Question:  An attorney has told us that if a student’s violation of the Student Code of Conduct was not a manifestation of his/her disability, s/he may be expelled.   Is this correct?

Question:  Who has the authority to determine if a violation of the student code of conduct was a manifestation of the child’s disability?  11/9/2015

Question:  Can someone direct me to some of the best documentation to share with school administrators regarding why we legally cannot compel a parent to take their child home from school with a stated reason of “the child did not take his medications” for mood management and ADHD?

Answer:   Section 300.174 of the 2006 FR carries the force of law.  The regulation says in part:

The SEA must prohibit State and LEA personnel from requiring parents to obtain a prescription for substances identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)) for a child as a condition of attending school, receiving an evaluation under Sec. Sec. 300.300 through 300.311, or receiving services under this part.

Words are important.  However, which rights specifically apply would be determined by whether the student in question had an IEP, a 504 Plan, was in the process of being evaluated, or had never been referred.   Trying to coerce parents into making their child take psychotropic drugs is not as John Kelly pointed out a practice condoned by law.

Children with disabilities may not be suspended for more than ten continuous days for behavior related to their disability.   By framing this suspension in terms of behavior (unspecified) related to a medical condition, the school appears to have limited its options (if the student is IDEA or 504 identified).    Whether a student is 504 or IDEA identified, before the tenth day of suspension, or a series of suspensions for more than ten days constituting a pattern, the school must convene a manifestation determination team to determine if the behavior was or was not a manifestation of the disability.  If it was, the child may not be suspended for another day that year.   If a hearing is not conducted, OCR may investigate and demand corrective action in order for a district to keep all its federal funding.

There is another potential problem in the situation as presented.   As presented, this student was NOT suspended for a violation of the student code of conduct.   He was suspended for not taking his medication.  (How did the school know?)  That could and in my opinion would be viewed as discriminatory.   Assuming again that the child has an IEP or 504 plan, the parents could file a complaint under 504 (regardless of how he was identified) with OCR directly.  OCR investigations can be very, very burdensome and are unlikely to be confined to the specific issue raised by a parent if the agency believes that the discrimination may be more widespread.   Parents do have power.   A complaint to the state education agency, if the child is IDEA identified, is also an option.

And remember that the right to a manifestation hearing is held equally by children who “only” have a 504 Plan,   even when not identified under the IDEA.   The  reason is that the MDT requirement isn’t based on the IDEA but instead reflects the Supreme Court decision in Honig v. Doe way back in 1988.

Some have suggested that schools can take measures such as recommending a change of placement if the student’s behaviors become so disruptive to the learning of himself and others that his current placement is viewed as failing to provide him with FAPE in the LRE.  However, the school’s authority to initiate such a change unilaterally is strictly limited in the CFR and then to only 45 days (e.g., for causing serious bodily injury to a staff member or student.)   In all other instances, the parents can decline the school’s recommendations and invoke stay put by demanding an impartial hearing.    Schools win those decisions more than fifty percent of the time, but the cost to school systems in terms of time and money (which may not be taken out of sped funds) makes these types of lawsuits unattractive in my experience to school boards in most instances.   (There are times when schools have to stand their ground, but settling through mediation ia almost always preferable.)

(Note:  although the IDEA limits school authority to a unilateral change of placement within the context of an IEP team meeting, Honig injunctions while rare are not dead.   If the school can show a child’s behavior presents a danger to himself or others, a court may bar that student from school for much longer periods of time.   Schools would nevertheless need to show that the child’s misbehavior was NOT the result of an inappropriate IEP or its failure to implement all the elements of an IEP, including a BIP.)

You may want to search the Internet for supplementary information interpreting the information John provided.   Peter Wright of Wrightslaw has advice for parents when a school tries the kinds of tactics adopted by your school.

It has also been suggested  that parents could easily resolve a situation where school administrators are suspending their child for not being on ADHD meds by  putting the child back on meds  “if there are no significant side effects.”   Psychotropic medications can of course have serious side effects, and there’s no way a school can know if a child is or is not at risk.   In one of my schools, a child was in a s/c classroom and doing well.   When he came back after summer break, he was a little hellion again.  The teacher learned that his mother had taken him off his stimulant medication.   The teacher frequently stopped the parent in the hall and even called her at home in the evening strongly urging her to put the child back on meds.   No threats (as in this case) were made.  But the mother finally caved into his insistence.  Turns out in addition to the ADHD, the child had an undiagnosed borderline anxiety disorder.  After starting him back on stimulant meds, the parent had to hospitalize him, and the hospital had to restrain him by strapping him to a gurney where he injured himself trying to escape.   Although I never saw the treatment records, it appeared that the meds triggered what closely resembled a psychotic episode.  It is known that stimulant meds can increase the frequency of psychotic episodes. The parent sued the school and the teacher.  The school prevailed because, it argued, it could not and did not prescribe the drugs.  Point being, if schools aren’t willing to take responsibility for negative effects, then they shouldn’t be in the business of forcing parents to administer those drugs.

And without a thorough evaluation, schools are in no position to know whether the side effects from the drugs are “significant” or not . . . and side effects can be serious. up to and including death

Parents’ views of what is “serious” may differ from the school’s.  “On meds, my little Billy is like a Zombie.   I don’t want him to be a Zombie.   It scares me.”  I’m not anti ADHD meds, by the way.   I’m just saying that whether or not a child should take stimulant drugs is a decision that can only be made legitimately between a parent and the child’s physician.

And (of course) even if the school  did have access to a comprehensive evaluation, they STILL would not have the legal right to make school services contingent upon the administration of Class II  drugs.

Question:  An attorney has told us that if a student’s violation of the Student Code of Conduct was not a manifestation of his/her disability, s/he may be expelled.   Is this correct?

Answer:   If there is no manifestation found for a child identified under the IDEA for a student code of conduct violation, a school may do whatever it would do if the student did not have a disability, except . . . it may not suspend child or expel the child without services.  In Florida, county school systems are required to develop their own policies which must be approved by the state.

While the attorney’s summary was not incorrect, it is a half truth.  Additionally, parents may appeal, and the hearing officer (see below) has the following authority:

From 300.532 of the 2006 FR.

(b) Authority of hearing officer. (1) A hearing officer under § 300.511 hears, and makes a determination regarding an appeal under paragraph (a) of this section. (2) In making the determination under paragraph (b)(1) of this section, the hearing officer may— (i) Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of § 300.530 or that the child’s behavior was a manifestation of the child’s disability; or (ii) Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others

If, however, the child was identified as having a disability under 504, then if he or she violated the Student Code of Conduct, and a manifestation team determined that there was no direct relationship, then he or she could be suspended or expelled without services.  The parents would still have a right to appeal.

The authority (and limitations upon that authority) of school administrators under the IDEA are laid out in Sections 300.530 through 300.533.  Unlike an attorney’s handout, the language therein DOES carry the force of law.  If there is no manifestation and the school suspends or expels the student it still must provide

(d) Services. (1) A child with a disability who is removed from the child’s current placement pursuant to paragraphs (c), or (g) of this section must— (i) Continue to receive educational services, as provided in § 300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting and to progress toward meeting the goals set out in the child’s IEP; and (ii) Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur. (2) The services required by paragraph (d)(1), (d)(3), (d)(4), and (d)(5) of this section may be provided in an interim alternative educational setting. (3) A public agency is only required to provide services during periods of removal to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if it provides services to a child without disabilities who is similarly removed. (4) After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, if the current removal is for not more than 10 consecutive school days and is not a change of placement under § 300.536, school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed, as provided in § 300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP. (5) If the removal is a change of placement under § 300.536, the child’s IEP Team determines appropriate services under paragraph (d)(1) of this section.

For the full text of this and the following regulations regarding discipline, see https://www.myschoolpsychology.com/wp-content/uploads/2014/02/final-2006-regulations-for-the-IDEA-2004.pdf

Question:  Who has the authority to determine if a violation of the student code of conduct was a manifestation of the child’s disability?  11/9/2015

Answer:  The answer to the question as written is simple.  The sole authority for determining if a violation of the student code of conduct was a manifestation of the child’s disability is the Manifestation Determination Team, which consists of the same members as an IEP team and must include the parent.  Again, see Section 300.530 for the authority of school personnel.  If the parents disagree, then they are entitled to an administrative hearing followed by a court hearing in district court if they’re sufficiently motivated.

https://www.myschoolpsychology.com/wp-content/uploads/2014/02/final-2006-regulations-for-the-IDEA-2004.pdf.

A slightly  more interesting question is “How do they determine if it is or isn’t related?”  Before 2006, it was a mess, because a clever attorney could argue that almost anything that happened was connected to the Renaissance . . . so connecting it to the child’s disabliity was relative child’s play.   That’s why OSERS modified the wording to require a “direct and substantial” relationship.

The reason for requiring the team to consider the child’s current IEP, however, is because sometimes children have unique needs resulting from their disability that aren’t all that common.

And special education is defined as specially designed instruction which means “adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction— (i) To address the unique needs of the child that result from the child’s disability.”  So while we usually say that a child’s needs, not the label, drive the IEP, there’s sort of a Catch 22 there . . . because once behavioral goals are written into an IEP, the school system has pretty much admitted that it views at least the behaviors addressed as resulting from the child’s disability.  But that doesn’t necessarily mean ALL violations of the student code of conduct automatically become manifestations.

Suppose Johnny has a learning disablity, resulting in low self esteem, which causes him to join a gang that rapes, ravages, and pillages other students.  Is his gang related behavior directly and substantially related to his disability because, if he didn’t have a poor self concept, he wouldn’t have joined the gang in the first place?  Answer:  Probably not if that’s all they’ve got.

 The intent of Congress in developing section 615(k)(1)(E) was that, in determining that a child’s conduct was a manifestation of his or her disability, it must be determined that ‘‘the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability, and was not an attenuated association, such as low selfesteem, to the child’s disability.’’ (Note 237–245 of the Conf. Rpt., p. 225). The regulation, which follows the statutory language, thus accurately reflects the manner in which the Act describes the behavior of the child is to be considered in the manifestation determination  p. 46720, 2006 FR above.

But it’s always best to remember that these are individual decisions based on the individual facts.   Another scenario.   Johnny is diagnosed as ED.  He has a history of impulsivity and an ADHD diagnosis.  He gets his friends together and they plan an execute a paintball attack on the exterior of the school.  The MDT concludes that the behavior was NOT a manifestation.   The parent contends that it WAS a manifestation.   It goes to court.   Who wins?  Not Mom.  See Fitzergerald v. Fairfax District Court ED Virginia 2008. Fitzgerald v. Fairfax, District Court, 2008.

Or for a summary see a 2008 article by Perry Zirkel (page 382) which also includes eight commonsense suggestions on how to conduct a defensible hearing at:

http://parentcenterhub.org/wp-content/uploads/repo_items/journals/zirkel5.pdf  It’s a published decision with precedential value.

There are a number of other questions that could be raised, of course.   I’ve copied some of them with a link to OSERS’  answers below.

F. Manifestation Determinations ………………………………………………………………………… Page 17 F-1. What occurs if there is no agreement on whether a child’s behavior was or was not a manifestation of his or her disability? F-2. What recourse does a parent have if he or she disagrees with the determination that his or her child’s behavior was not a manifestation of the child’s disability? F-3. Is the IEP Team required to hold a manifestation determination each time that a student is removed for more than 10 consecutive school days or each time that the public agency determines that a series of removals constitutes a change of placement? F-4. Does a school need to conduct a manifestation determination when there is a violation under 34 CFR §300.530(g), which refers to a removal for weapons, drugs, or serious bodily injury? F-5. What disciplinary procedures would apply in the case of a child who has been referred for a special education evaluation and is removed for a disciplinary infraction prior to determination of eligibility? F-6. Is there a conflict between 34 CFR §300.530(c), allowing school personnel, under certain circumstances, to apply the relevant disciplinary procedures to a child with a disability in the same manner and for the same duration as would be applied to children without disabilities, and the provision, at 34 CFR §300.532 (b)(2), that the hearing officer may order a change in placement for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others?

Answers:   https://www.myschoolpsychology.com/wp-content/uploads/2014/02/Discipine-Q-and-A-2009.pdf

3.2 Physical Restraint

Question:  When it is appropriate to use physical restraint and/or seclusion in disciplining a child with a disability?

Question:  When it is appropriate to use physical restraint and/or seclusion in disciplining a child with a disability?

Answer:  The inappropriate use of restraint in particular has in some cases reported in the press had deadly consequences.   For example, see this article from New York:   Death and School  Physical restraint should always be a last resort when the use of positive behavioral interventions and strategies have failed and the safety of the student or others in a child’s classroom is at stake.  It should ONLY be used  by individuals who have been appropriately trained.  Where restraint is a foreseeable option, ideally it would have been addressed in the child’s IEP.   This  brief summary in and of itself is insufficient as a working guideline, however. OSEP issued a Resource Document on Restraint and Seculation in 2012 with which anyone working in a situation where the use of restraint in working with a child is a possibility should be familiar.
OSEP: Restraints and Seclusion Resources

4.0 Responsibility and Liability

Question:  What should a school use in establishing a suicide prevention program? (4/10/2016)

Question:   Do parents have any legal rights  to protect their child while in school against bullying?  2/21/2014

Question:  Is it ethical for a dually licensed school psychologist to see a student from his/her school system in private practice? 8/20/14

Question:  What guidance is available in assisting schools in determining whether to serve slow learners who do not qualify under a discrepancy formula under the IDEA as disabled under Section 504?  11/27/2014

Question:   Do parents have any legal rights  to protect their child while in school against bullying?  2/21/2014

Question:  What should a school use in establishing a suicide prevention program? (4/10/2016)

The materials at Sped Resources/ Suicide Prevention are not directly responsive to this query, but they should be helpful in establishing both need and the basic principles that should underlie any suicide prevention awareness program.  With respect to need, unless a school system has recently experienced a tragic event, the extent of the problem may not be overly obvious.  In my county, although we had never previously had a known suicide in the district, some newer school psychologists convinced the school board to implement a program such as you describe.  They used  the CDC stats (see links above)  in convincing a school board of need.   Personally, I always thought that the subject of suicide prevention should come under the broader topic of enhancing the mental health of our students.  Just addressing suicide prevention seemed a little like buying cancer insurance, but that’s just me.  Still, if your school system combined its resources within the school and within the community to address mental health issues in general, suicide prevention would certainly be a significant part of the problems addressed.

What is critical in any staff training, however, is that staff, particularly counselors and school psychologists, be aware of  their duty to warn parents  if they suspect their child might be in danger.   Tarasoft (1976) trumped confidentiality but its influence has eroded over the years.  There have additionally been several landmark cases following Tarasoff, which involved an individual with murderous intent, that specifically address suicide prevention, e.g., Eisel v. Board of Education, 1991, Court of Appeals, Maryland.    Although Tarasoff and Eisel are both widely cited, not all courts in all states have held counselors responsible when they failed to notify parents; but then again, some courts have.   Legal responsibility doesn’t necessarily dictate ethical obligations, but it’s still good to be aware of the potential legal obligations in one’s own state.  Also, these decisions can be demonically difficult to make, even for a skilled therapist.  Is a patient just fantasizing?  Or is there real intent?  Does a patient’s threat to spike his wife’s coffee with urine carry the same burden as threatening to shoot her as she sleeps?  What if he is just threatening to wave an empty gun at her to scare her?

To the extent that state laws may make those decisions simpler (albeit never easy) you should probably include, even if you adopt a commercially available program, state specific statutory  information about staff’s duty to warn; that varies from state to state and some states have different duties for different professions.   Additionally, the subject may also be addressed by a school board policy, which would also govern employee behavior.   If your district doesn’t have a policy on suicide prevention that could be another way to go.  Some sample school board suicide prevention policies are extremely elaborate; other school board suicide polices are comparatively brief.   There are a lot of other examples on the Internet, but one problem I saw with our suicide prevention program was that its continued existence was completely dependent on the staff who initiated it.  When they were gone, the program for all intents and purposes was gone.  Another problem from my perspective, resulted from over-thinking the subject — our school psychologists were regularly getting called to do risk assessments on children who had expressed suicidal ideation.   If you have a policy in place that requires parents to be notified if their child is expressing suicidal ideation, you don’t necessarily need to sit the kid down and go through a formal checklist to see if he/she really means it.   Again, though, that’s just me.

And don’t forget — no program is going to be perfect (although, if no one in your school has committed suicide in the last twenty years, it might appear to be.)  The real challenge in addressing student needs  is going to arise when a child actually dies — whether as a suicide or, more likely, as a result of an accident, illness, fire, or, of course, if it’s not a child, just a beloved teacher.  Having a Crisis Response team, it seems to me, is as important (and  more likely to be called more frequently) than a suicide prevention team.

Oh, and of course, NASP has a bunch of materials. Samples follow.

Suicide Prevention
Save a Friend
School Safety and Crisis
Preventing Youth Suicide
After a Suicide

Guy, SP, retired

Question:   Do parents have any legal rights  to protect their child while in school against bullying?  2/21/2014

Answer:  Yes.  On April 21, 2015, Montana became the 50th state to enact an anti-bullying law.  For a summary reflecting each state’s activity in this area, current as of July 2015, click on this link:

Bullying-and-Cyberbullying-Laws

Additionally, not all bullying is just bullying; if directed a a minoirity child or a child with a disability, “bullying” can rise to the level of a civil rights violation.

OCR has addressed some of  those issues in at least one memorandum. OCR Letter on Bullying

Accompanying that letter was a fact sheet that may or may not be on point for your parents Federal Fact Sheet on Bullying

OSEP’s considerably expanded response in a 2013 letter OSEP Letter on Bullying (2013)

And the handout that came with it giving suggestions on evidence supported practices

OSEP 2013 Research backed Practices for Addressing Bullying

OSEP 2013 Letter on Bullying.

Administrative failure to take effective action in resolving a bullying complaint can not only result in that administrator facing charges under a state law but, additionally a lawsuit in federal court alleging discrimination.

Also,  students do not have a monopoly on bullying; occasionally teachers get into the act.   For one example where a teacher was accused of bullying a girl with a history of suicide attempts and sued for emotional damages see this Fourth Circuit case Baird v. Rose

Question:  Is it ethical for a dually licensed school psychologist to see a student from his/her school system in private practice? 8/20/14

Answer:  If the services the privately licensed school psychologist is offering would also be available to the parents through the school system in which the SP is employed at no cost, it would be unethical.

We have links for NASP and APA ethics at:  Assessment Ethics Links

A particularly troubling  issue here as in many dual relationships is one of trust.  Schools and parents have differing expectations of their counselor-therapists, and  if a parent-school situation turned adversarial, neither of the two employers would be able to trust the psychologist given his/her mixed loyalties.

See standard III.4.9 of the NASP Ethics as well as 3.05 of the APA Ethical Code regarding multiple relationships for a more detailed discussion.   NASP Ethics are, as in Pirates of the Caribbean more of a guideline than enforcible rules.   The APA Ethical Code, however, is often incorporated into state statutes, and violations thereof can be enforced against private psychologists by their state licensing board.

APA Ethical Code

NASP Ethics

Question:  What guidance is available in assisting schools in determining whether to serve slow learners who do not qualify under a discrepancy formula under the IDEA as disabled under Section 504?  11/27/2014

Answer:  “Slow learner” as the question suggests was a term used to describe children who did not meet the discrepancy requirements for SLD classification using a discrepancy methodology under either the IDEA or 504 using the DSM criteria for a specific learning disorder.   With the advent of the RTI methodology, and the elimination of a discrepancy requirement for a specific learning disorder under the DSM 5, the “slow learner” label has all but disappeared.  It was never considered to be a disability.   The first step in determining whether a child qualifies under 504 is to determine if the child does indeed have a disability, whether it be a specific learning disorder, a disability under the ICD or DSM 5, dyslexia, dyscalculia, or dysnomia (this list is not necessarily exhaustive.)

There has not been a great deal of litigation over 504 within the nation’s public school system.  While caselaw is of limited assistance,  relevant guidance can be obtained from the Office for Civil Rights in the United States Dept. of Education and then (with certain caveats) from the Regulations promulgated by the EEOC at the direction of Congress.  (The main caveat being that in public schools students are entitled to FAPE; the EEOC regulations, aimed at the workplace, only require “reasonable accommodations.”)

Once a 504 committee has determined a child has a disablity, the determination as to his or her eligibility for special education, related services, accommodations, or supplementary aids or services is not,  according to Congress,  supposed to be all that difficult.  If it is that difficult, then it is probably because the evaluation you’re reviewing has not addressed all the relevant issues, and further assessments should probably be requested.

Both the full  text of the ADAAA and the EEOC implementing regulations can be downloaded at:  http://www.eeoc.gov/laws/statutes/adaaa_info.cfm  The EEOC regulations are very lengthy, but if you do a word search on “specific learning” their dicta on specific learning disabilities is also relevant in helping schools interpret and apply 504 in their settings.

There are non governmental resources as well.   Perry Zirkel is regarded as an expert on ADA/504, and his article Top Five 504 Errors is a recommended reference. .  In that article, Perry makes the case that broadened standards should not be mistaken as meaning that there are NO standards.  Other downloadable references, many downloadable at no cost,  may also be found at:   Perry Zirkel Publications

OCR letters and updated FAQs are also on point and offer the most defensible opinions in an adversarial proceeding.  A partial listing:

FAQs on Effective Communication   (Last updated on November 12, 2014)

Protecting Students with Disabilities   Links to letters and fact sheets; in particular I would recommend taking a look at the October 2012 Letter and FAQs.

Section 504 Regulations for Public Schools  The OCR regulations carry the force of law.

OCR: 504 FAQsFAQs

OCR: MORE FAQsMore FAQs

OCR Q and A regarding 504 Q and A on the ADAAA amendments of 2008